The National Security Agency is on a mission to track all Americans' phone records, an activity I find ethically reprehensible and legally questionable.

Hawai'i's citizens should be disturbed that the federal government's super-secret NSA has been gathering phone call records of tens of millions of Americans using customer information provided by some of the nation's largest phone companies.

While Hawaiian Telcom confirms that it has not released records of Hawai'i customers, I would like to know its response to the NSA if it were asked to provide such data, as well as its policy on access to records going forward.

In providing any information to the federal government, Hawai'i-based telecommunications carriers should know that Hawai'i has strong constitutional privacy provisions and that government clearly does not have access rights unless it can show a direct and unquestionable link to protecting our national security.

The state Constitution explicitly states: "The right of the people to privacy is recognized and shall not be infringed without the showing of a compelling state interest. The Legislature shall take affirmative steps to implement this right."

On the Mainland, one large phone company, Qwest, refused to help the NSA, citing federal privacy laws. Another company asked for the court to review the request to ensure that there was a compelling state interest and that its individual customers' right to privacy was adequately protected. Others asked that the NSA comply with the Foreign Intelligence Surveillance Act, the law passed by Congress to protect Americans from illegal eavesdropping.

The NSA rejected all of these requests under the rationalization that our national security is at risk and the information was needed to protect the country from attacks. The bald truth is that we are faced with probably the largest "data-mining" or "fishing expedition" effort in history and one that is being sanctioned by our own government.

The Bush administration is invading the privacy of the innocent on the extremely remote chance that it might catch those who mean us harm.

Can the federal government even cope with all the data it receives? Can the federal government keep the data secure? Many experts think that they cannot.

Given the hard choice between privacy and security, it is my guess that most Americans would probably choose to sacrifice some of their rights to get more security. Proponents of this program, what is essentially domestic spying, are banking on our natural desire to protect our families. But what is the cost to our nation and its people of this effort?

Ben Franklin told the Pennsylvania Assembly: "Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety." What this means to me is that when we give up our constitutional rights, we give up the very things that protect us and keep us safe. When we don't respect our right to privacy, our country is weakened, not secured. Approximately 100 years after the Constitution was ratified, people found it important enough to inscribe Franklin's famous words on a plaque in the stairwell of the pedestal of the Statute of Liberty, one of our nation's most enduring symbols of freedom.

Hawai'i's unique privacy provision was added to the Constitution of Hawai'i by the 1978 Constitutional Convention. In debating the provision, the delegates spoke of "the right to privacy," "individual dignity" and preventing "government from acquiring powerful tools of repression."

They held a common view that privacy fosters the growth of autonomous, free-thinking individuals, who are necessary for the future development of self-government in an American democracy. In particular, the delegates agreed that, under the constitutional privacy provision, individuals would have stronger protection of their human dignity and less risk of unwarranted interference by their government.

It is anticipated that the NSA will use what is known as the "state secrets" privilege against any legal challenge. This privilege states that the government is able to prevent certain cases from ever going to trial because the information made public during the trial would threaten national security. It is a defense that has not been used widely until the George W. Bush administration.

Expecting this strategy, the ACLU has filed complaints in more than 20 states. The majority of the complaints demand that either the state's public utilities commission or the attorney general conduct a public hearing, calling on local phone companies to testify.

To my knowledge, no complaint has been filed in Hawai'i. However, Rep. Bob Herkes, chairman of the Consumer Protection and Commerce Committee, and Rep. Sylvia Luke, chairwoman of the Judiciary Committee have taken the initiative to hold a public informational briefing on this important matter. The briefing will be held on Tuesday, June 27, at the state Capitol, Room 325, at 10 a.m.

Kirk Caldwell is the state representative for Manoa. He welcomes feedback on this issue and can be reached at repcaldwell@capitol.hawaii.gov. He wrote this commentary for The Advertiser.