MELISSA BLOCK, HOST:
Privacy, it's been in the news a lot lately, after revelations that the National Security Agency collects vast troves of information of Americans' phone calls, email and Internet use. All this week, we've been exploring how people and companies beyond the NSA can track the intimate details of your life.
As we reported yesterday, law enforcement - and even private attorneys - can get many of your digital records just by issuing a subpoena, which prompted NPR's Daniel Zwerdling to ask: if you have nothing to hide, should you care?
DANIEL ZWERDLING, BYLINE: Here's another way of putting the question. OK, if you really think you've done nothing wrong, then do you have any reason to worry that someone, someday might try to get hold of your digital records and use them against you?
We're going to think about that question in two ways. First, let's look at history. I posed our question to John Dean. He used to be President Nixon's White House lawyer. And Dean said think about the Nixon Enemies List.
JOHN DEAN: If Richard Nixon were alive today and in office, I'd have great concern about the data that's being collected.
ZWERDLING: Dean says the history of Nixon's Enemies List shows that even when people have done nothing wrong, even when they think they have nothing to hide, still, unscrupulous government officials have dug up personal information about them and tried to smear them.
Realistically, in the next few years, could government officials use the information in all our digital records to try to smear its political enemies?
DEAN: Absolutely could. This digital information is out there and it is getting collected in enormous heaps that can be mined electronically and digitally, and politically twisted.
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UNIDENTIFIED MAN #1: June 25th, 1973, Washington, D.C., a standing-room-only crowd waits for President Nixon's former legal counsel, John Dean, to testify in front of the Senate Watergate Committee.
ZWERDLING: This is from a National Geographic documentary about the Watergate scandal that sank Richard Nixon. Of course, the main part of the scandal revealed how top government officials committed crimes to help Nixon politically. President Nixon helped lead the cover-up and he ended up resigning in disgrace. His top aides went to prison.
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ZWERDLING: But one part of the Watergate scandal involved Dean and the Nixon Enemies List. It seemed like the whole country watched the Senate hearings where they revealed it.
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UNIDENTIFIED MAN #2: The committee will come to order and counsel will call the first witness.
DEAN: Thank you.
ZWERDLING: That witness was John Dean. It turned out that Nixon's aides had plotted a smear campaign. Dean wrote a memo for them, titled "Dealing with Our Political Enemies," Dean wrote, quote, "Stated a bit more bluntly, how can we use the available federal machinery to screw our political enemies?"
After the Senate committee released the Enemies List, an NBC reporter read some of the names on it.
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UNIDENTIFIED MAN #3: Paul Newman, California, the actor; Stewart Mott, who is a GM heir and a heavy contributor to Democratic candidates; Ronald Dellums, the black congressman from California...
ZWERDLING: There were more than 600 people on the full Enemies List. They included journalists whose reporting Nixon didn't like. Others were on it because they'd criticized the president or supported liberal causes. According to the White House strategy, government officials would dig up embarrassing information about them and then the IRS might audit them or prosecutors might mess with them, basically make their lives miserable.
Nixon and his aides got caught before the plot could take off. But only a year after Nixon resigned, investigations showed that other administrations had tried to smear their enemies, too - Republican and Democratic administrations.
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WALTER CRONKITE: The Senate Intelligence Committee has condemned government spying on American citizens in a massive report on...
ZWERDLING: That's CBS News in 1975. The chairman of the committee, Senator Frank Church, said the FBI had destroyed people's lives, illegally.
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SENATOR FRANK CHURCH: We know that the bureau conducted almost a million investigations of so-called subversives and extremists over the past 20 years. We know that marriages were destroyed, violence was encouraged, and the mass media were manipulated.
ZWERDLING: Of course, all that happened in the era BC, right, before computers. You don't need computers to dig up dirt on people. But researchers say digital records make it amazingly easier to do.
JULIAN SANCHEZ: This is a golden age of surveillance.
ZWERDLING: Julian Sanchez studies privacy issues with the CATO Institute, that's the libertarian think tank. Before computers, it took a huge amount of time and work to try to find dirt on somebody. For instance, the FBI tried to smear Martin Luther King, Jr. They wiretapped his phones, they bugged his hotel rooms, and they had to listen to hundreds of hours of recordings. In the Watergate scandal, operatives broke into the Democratic Committee's headquarters to plant bugs and photograph documents - and they got caught.
But Sanchez says the computer age lets you find intimate parts of a person's life right in front of you, on a screen.
SANCHEZ: There has never been so much data about so many of us so easily available to law enforcement and intelligence agencies. Even if it's being used properly now, we are constructing an architecture of surveillance, an architecture that will be in place if and when there comes someone holding power who wants to use that against those he regards as enemies of the country.
ZWERDLING: Some analysts say stop worrying about it so much.
Paul Rosenzweig, you are not worried about all your digital information that's out there.
PAUL ROSENZWEIG: Saying that I'm not worried is a little bit of an overstatement.
ZWERDLING: Paul Rosenzweig used to be deputy assistant secretary at the Homeland Security Department. Now he advises industry on Internet privacy. He says he agrees, history does suggest that government officials will misuse digital records.
ROSENZWEIG: Yeah. Inevitably we will see somebody - somebody's going to do something that we're all going to look and hit ourselves on the forehead, and say, my God, how could they possibly do that? And they'll get caught and we'll fix it. No human system is perfect. And we are going to use all of the systems that we can to minimize the risk.
ZWERDLING: OK. So history helps answer our question: is it conceivable that somebody someday might try to use your digital records against you? Today, a television ad helps answer that question, too.
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UNIDENTIFIED MAN #4: How did our marriage ever come to this?
UNIDENTIFIED WOMAN #1: The decision to get a divorce isn't easy.
ZWERDLING: Lee Rosen, I hear that divorce lawyers like you are crazy about the Internet and about the rest of our digital world.
LEE ROSEN: Well, it's like literally the floodgates of data have opened up to us.
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UNIDENTIFIED WOMAN #1: Visit Rosen.com to learn more.
ZWERDLING: Lee Rosen's law firm is based in Raleigh, North Carolina. He says you might not realize it but North Carolina and some other states consider private lawyers to be officers of the court. So his staff can issue subpoenas a lot like prosecutors can, so they can dig up evidence on people like cheating spouses.
Just the other day, Rosen asked his assistant to fill out a new subpoena in a child custody case.
ROSEN: So we're going to ask for all the cellular billing and usage statements, right?
UNIDENTIFIED WOMAN #2: OK.
ZWERDLING: He says they send out dozens of subpoenas every month.
ROSEN: Read it to me.
UNIDENTIFIED WOMAN #2: Please send any available geolocation, tower or GPS data from 1/1/11 to present.
ROSEN: Perfect. Go ahead and print that one for me and I'll sign it and we'll go from there.
UNIDENTIFIED WOMAN #2: OK.
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ZWERDLING: Rosen's staff subpoenas people's bank records and travel records and credit card statements.
ROSEN: I sort of think of your credit card as the table of contents of your life.
ZWERDLING: And he says text messages are like the whole book. Hardly anything proves adultery so easily.
ROSEN: Everything is right there in the text messages; everything from what time we're going to meet and where we're going to meet, to how much we love one another to what we're going to do, or what we did do in a hotel room or in somebody's apartment or the back seat of a car.
ZWERDLING: So even in this day and age, with all these media stories about the, you know, what's out there in the digital world, people still don't get it.
ROSEN: Yeah, I think there's something about, you know, using your fingers to send the message that doesn't fully engage the brain.
ZWERDLING: Now, maybe you're thinking, I've got a great relationship. This would never happen to me. But what if you get into a legal fight with your employer or with an insurance company that refuses to pay your claim? Well, at least your medical records are sacred, right? The HIPAA law protects them, except officers of the court, like Lee Rosen, can subpoena your medical records, too. And he says now that everything is on computers, he can get far more information than lawyers used to get on paper.
Rosen had another custody battle a couple years ago.
ROSEN: We were representing the mother.
ZWERDLING: And she suspected her former husband was having mental health problems.
ROSEN: And so we subpoenaed the father's medical records from his internist. And the internist had referred the father to a psychiatrist. So we then subpoenaed the psychiatrist records.
ZWERDLING: Now why don't these companies generally fight you? When you issue a subpoena saying I want their medical records, I want their cellphone records, I want their text messages, why don't the companies fight you and say, no, we're not giving it to you?
ROSEN: The companies generally want to comply with the law in the way that's least expensive to them. You know, they don't want to have to hire lawyers. They don't want to have to send doctors or other representatives to depositions or court hearings. They just want to give you the records and move on.
ZWERDLING: Talk to your family and friends about all this. If national polls are right, they're torn whether they trust the digital world. I asked people a few blocks from the White House. Here are two women who are far apart.
Hi, excuse me, guys. Could I ask you something? Do you ever worry about all the information about you out there in the digital world?
TAYLOR JOHNSON: I worry about it all the time. My name is Taylor Johnson; I'm from D.C. I'm anti-capitalist and this is a capitalist country. I'm anti-consumerist and it's a consumerist culture. I don't believe in white supremacy and this country runs on white supremacy.
ZWERDLING: If somebody wanted to find that out about you, would it be pretty easy to find that on the Internet?
JOHNSON: It would be very easy. When I use the Internet, I think about how I'm being tracked. I wonder about it every day.
ZWERDLING: But then, talk to Sable Harris(ph).
SABLE HARRIS: I am definitely a millennial. I love social media.
ZWERDLING: Harris wants people to track her life. She's wearing one of those popular new fitness bands on her wrist. It looks like a plastic bracelet that commemorates something, but it keeps track of practically everything she does 24 hours a day.
So here's a bar graph. This is showing how you slept last night?
HARRIS: Yes. I got four hours and 21 minutes of light sleep, three hours and six minutes of deep sleep. I fell asleep in 16 minutes. I was in bed for eight hours and 10 minutes.
ZWERDLING: And when Harris plugs the band into her smartphone, it downloads all her data on the Internet, so her friends can check out her vital statistics and compare them with their own.
HARRIS: How they move, how they sleep.
ZWERDLING: Harris says when she stops and thinks about it, she can imagine that maybe, maybe information like that could come back to haunt you. Some privacy specialists wonder about those fitness bands. Suppose you're in a car accident. What if your auto insurance company learns from your bar graphs online that you hadn't slept the night before the crash and they refuse to renew your policy?
HARRIS: It's better to not really think about every little piece of data you share. Otherwise, you'll just want to live under a rock and not come out.
ZWERDLING: An influential Senate committee passed a bill earlier this year that would lay out tougher rules for this new world. Under current law, the police and government agencies like the IRS can sometimes get your emails, content and all, with only a subpoena, as long as you've already opened them or they're more than six months old. The new bill would require probable cause of a crime and a search warrant.
So far, the full Senate has not scheduled a vote. Daniel Zwerdling, NPR News.
BLOCK: Our story was co-reported by G.W. Schulz of the Center for Investigative Reporting and researched by NPR's Emma Anderson.
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