Not toeing the line
So, my little snippet about the phone records set off some nerves in comments. Not sure why readers would consider my response to it a surprise. Heck, I’ve even got folks threatening to not read me. Why do I oppose such a measure? Simple. It’s none of the .gov’s business who everyone calls. Period. It’s also unreasonable to maintain such data on anyone who is not suspected of a crime, much less on everyone. And it just wreaks of big brother nannyism. It’s just one of those things I oppose.
Chris details why this stuff is legal (but legal and constitutional aren’t the same):
These records are legally semi-public information, not private. It is legal to collect these records without a warrant, so long as they are not used to SPECIFICALLY TARGET an individual without a warrant (there is a specific pen register warrant for that purpose), or used beyond basic identifying characteristics. Once a trace of interest is found, a warrant can then be applied for for further surveliance.
Does that mean I can call up the phone company and tell them I want all their data from forever? No. It means the .gov can and nothing more. He also writes:
Under the third party exemption, if a third party is allowed to setup or witness what is otherwise a private communication between two parties, the expectation of privacy of the existence of the communication is breached (if it existed at all which in many cases it does not), and the existence and external characteristics of that communication can then be compelled and used as evidence without a warrant.
So, there’s the why they can do it. Also, given that this info was made public months ago and is now resurfacing in light of a new CIA appointee, I find the story to be politically expedient. But what surprised me most was the defense (or passing blame) of the .gov on this issue (such as Blaming Clinton: I don’t care if the guys maintaining databases on me have Ds or Rs after their names. I’m pissed because I’m in their database). The one that takes the cake for the stink of big .gov defense is this from one of my favorite bloggers Kim du Toit. Essentially, he tells us not to worry for a variety of reasons. A sum of those reasons and my responses to them are as follows:
The NSA is collecting only a couple of pieces of information: So? That’s like saying you’ll only stick it in a little bit.
The info isn’t really a privacy violation because it’s just numbers called from and to: So, why do they need to know that I call my mom? They don’t. Period.
If you don’t collect all the data, you can’t narrow the search at all: Or you could just investigate those suspected of terrorists activities and crimes. You know, police work. After all, if you don’t collect all the data on who buys guns . . .
You’re not that interesting: I find this one the most difficult to not laugh about. It doesn’t take much for them to become interested. After all, I’m an otherwise non-interesting person yet I had agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives show up at my house and quote my website to me. But, hey, you got nothing to worry about.
And my personal fave of evoking 9/11: Trouble is, this was going on prior to 9/11. Didn’t help much, did it?
It’s another step toward the nanny state and I don’t like it. May not be that big of a deal in terms of violations of privacy but it is significant. Another canary just died.
Update: Glad I’m not the only one. Seems Jeff and Tam concur.
May 15th, 2006 at 8:05 am
Bush is OK with 700,000 folks strolling over the border every year…but he wants me to take my shoes off at the airport because of “heightend security situations?”
Either there is a war on, or there isn’t.
If the border isn’t secure the rest of this idiocy is just political theatre. That includes phone call pattern monitoring.
Jeeze, what a bunch of knuckleheads we have running the country. I expected more of Bush and the Republicans.
May 15th, 2006 at 8:47 am
Technically, that’s true, but non-technically, huh?! The only difference between “legal” and “constitutional” is that one denotes compliance with all applicable laws, while the other denotes compliance with the Constitution. While it is possible for a program to be constitutional but not legal; it is NOT possible for it to be legal but not constitutional.
Unless you, your mom, or someone sharing one of your phone numbers makes a large number of calls to suspected terrorists, they won’t know that you called your mom. All of this hand-wringing over the eeeeeevil Bush Administration’s violation of al Qaeda’s civil liberties is getting old.
May 15th, 2006 at 9:01 am
Puhlease. Are they taking only al qaeda’s nail clippers? Are the monitoring only al qaeda’s phone records? Etc.
May 15th, 2006 at 9:19 am
Only technically. In reality, it sure can. Campaign finance reform, the AWB, and others come to mind.
May 15th, 2006 at 9:40 am
Nail clippers are stupid, but they’re hardly a major civil liberties issue. Phone records are not stupid. I want the authorities to listen in on al Qaeda’s phone calls, but to do that, they have to know which lines to tap. One way to find out is to start with whatever leads they have received from other sources, and then search a comprehensive database of phone calls to see which numbers frequently call them or receive calls from them. Another is to say “screw it, anonymous phone numbers have privacy rights, too,” and just tap people’s phones at random. A third option is to only tap those few lines they’ve had volunteered to them without making any effort whatsoever to find any others on their own, as any such efforts will invariably involve paying attention to public information that ACLU types argue should be private. A fourth is to politely ask al Qaeda representatives for a list of the numbers they frequently use, and then just tap those lines. If you can suggest a fifth option that will be more effective than Options 3 and 4, and be perceived as less of a civil liberties concern than Option 1 (to say nothing of Option 2), let’s hear it. If you can’t, then you’re in no real position to complain about what the .gov is doing now. It’s always easy to say “[d]ude, this crap has to stop,” but to show that, you have to propose something better.
May 15th, 2006 at 9:47 am
If by “legal” you mean “courts approve it,” and by “constitutional” you mean “I like it,” then perhaps so. Otherwise, to the extent you argue that CFR and AWB are unconstitutional, you are also arguing that they are illegal. It’s only a question of which laws you think they violate. [Though in the case of a federal statute such as CFR or AWB, it would be tough to argue it was “illegal” if all it violated was another federal statute.]
May 15th, 2006 at 9:49 am
I did. It was called ‘police work’; you know, following leads, digging around a bit, etc. And what precisely is effective about this method? Seems to me to be too huge to really be beneficial since the odds of getting the right ‘hit’ from such a hugedatabase is probably small any way.
For me, this isn’t about effective police work, it’s about whether this stuff is constitutional and the expansion of the big brother state. As such, I’m a bit concerned about it.
Just like the my opposition to death taxes, no I actually do not.
May 15th, 2006 at 9:50 am
Sign me up with Tam and Jeff on this one. It completely baffles me how so many otherwise pro-freedom people let their brains drain out their ears as soon as “9/11” and “terrorism” is mentioned.
May 15th, 2006 at 11:21 am
IOW, “this crap has to stop” so they can get back to … doing exactly what they’re doing now?
Not if you rely on a powerful computer to pick out those rare “hits,” and never waste any human’s time looking at anything else. Which is almost certainly what they’re doing, and why it’s so silly for you to be bellyaching over the insanely remote odds that any human will even know, much less care, how often you have called your mother.
Yes you do – if you want any credibility on the issue. Merely stating “dude, this crap has to stop” does not show anything, apart from your disdain for the government. To prove that it is “crap” and that it “has to stop” requires you to provide a better alternative. Barring that, the only rational answer is “No, it’s not crap, and for it to stop would be a really dumb idea.”
May 15th, 2006 at 11:24 am
Heh.
May 15th, 2006 at 11:26 am
At this point, I’m fairly certain you’ve read this post that you’re commenting on. So, I’m also certain you realize I’ve said more than ‘dude, this crap has to stop’.
May 15th, 2006 at 11:30 am
Kevin Drum has a good post on the legality of all of this.
May 15th, 2006 at 11:41 am
I’m amazed at how many people are willing to impede our efforts to combat a known threat for fear of a threat that can only be seen with tinfoil binoculars.
These same folks, I assume, would be the ones defying rationing, blackouts, and censoring during WWII. After all, we can’t trade any of our liberty for security, now can we?
Somewhere in the liberty/security relationship there has to be a cost/benefit analysis or a balancing test. Balancing the fear of the government abusing your phone records v. being able to identify terrorist cells in the U.S., I think the NSA program is very reasonable.
May 15th, 2006 at 11:46 am
it is NOT possible for it to be legal but not constitutional
In theory, no. But this isn’t a law class, and there are CERTAINLY many unconstutitional laws that have been passed. McCain-Feingold being the latest and egrarious. Alien and Sedition Act? Dred Scott? For a while, despite the fact that I’m sure you’d agree, those had massively unconstitutional provisions, they *were* _legal_.
Do “illegal aliens” get “Constitutional protections”? Do people _outside_ the US get them?
The first, most people would say yes, and the second, no. You’re not in the US. You don’t get the US “system”. Is “rendition” (if it exists or not) legal? Can we take you into custody, and take you somewhere and let them beat a confession out of you?
But what is the Constitution? Is it merely law? Or is it a concept and a philisophy higher than that? I’d argue that it is. It’s not _just_ a piece of paper. It’s a concept and a philisophy that was rare at it’s time, and even rarer today.
And it’s one that government should answer _to the people_, not the other way around.
And we’ve really lost sight of that.
The NSA intercepts, are they understandable? Sure. Are the legal? Certainly. Are they constitutional? ……. So far, that’s been upheld by the relevant authorities, but I would argue that in essense, they’re [NSA intercepts] a betrayal of the Constitutional oath sworn by those involved. The Constitution says, you, the Government, can’t just search because you feel like it, or you’ve been slighted, you need to prove probable cause, and get a warrent.
Now, can that still be abused? Sure! Can the government that doesn’t like you team up with a judge that doesn’t, and get a warrent on faulty/nonexistant evidence? Yep.
But we don’t take those possibilities as certainties – sure it can happen. But should it?
No, the phone companies handing over billing info doesn’t really bother me. I mean, even the holdout would have *sold* it to the government if they’d been paid, instead of asked to hand it over for free. It’s not as serious as other invasions of privacy, or other government misconduct.
But I think that when you’ve sworn an oath to the Constitution, with it’s specific safeguards against Government power, that finding “loopholes” should be the last thing on your mind.
Yes, I know, I’m in the minority. Sadly enough.
May 15th, 2006 at 11:48 am
(Minor edit: I know Dred Scott wasn’t a law, but the opinion cited many laws/Constititional opinions (that africans “couldn’t be American Citizens, IIRC), that were later tossed. Sorry, was in a hurry, forgot to edit that paragraph)
May 15th, 2006 at 1:16 pm
[…] SayUncle: It’s another step toward the nanny state and I don’t like it. May not be that big of a deal in terms of violations of privacy but it is significant. Another canary just died. […]
May 15th, 2006 at 1:31 pm
I have this strange feeling that Kim and others are taking the side that this database is “ok” because it isn’t that big of deal. Not that it is “right” to have a database of this kind or any kind being kept by our government on legal citizens. They all know, on the face of it, that that just isn’t right, (and no, a suggestion of yet another stupid database is not needed to justify the removal of this database). Some of these same folks claim their line in the sand will be when National ID is forced upon us, but this database is just brushed aside??? Then, we find our Republican Party already brought us National ID, (just get your next driver’s license). So, like that line in the sand, this phone record database is explained away in so many comments: just because you wear a tinfoil hat doesn’t make you that interesting? Ummm…Ok??? And then the ultimate, this “new” and improved database will stop another 9/11. It’s like we are agreeing with yet another one of Menino’s feel good task forces that will be the one to finally stop __________(fill in with whatever tradegy happened last in Boston).
Besides, the feds total disregard of their sworn oath to the Constitution is much worse in other areas, (right to bear arms being one trampled on daily). So, to Kim and others, this issue isn’t something worth burning bridges over. Another election is on the horizon, and the image of Hilliary and Dems returning to power makes acceptence of this database extremely easy to justify. Thinking of Hilliary in office, you almost can’t blame them.
This is when it becomes a question of what ‘your tolerance threshold for tyranny’* really is.
*Stolen from David.
May 15th, 2006 at 1:36 pm
Not much more. In the original post, that was ALL you said about the subject. In this post, you expand a little, but telling police to stop doing police work and start doing “you know, police work” adds little of substance to the debate. Rather than going round and around, perhaps you can answer a few simple questions:
1. Should NSA monitor international phone conversations placed to/from a known or suspected al Qaeda member?
2. If not, why not?
3. If so, should NSA also take a closer look at the people who frequently call the known/suspected al Qaeda members abroad?
4. If not, why not?
5. If so, how will they know who to go after? Generic references to “police stuff” don’t count; I want specifics.
May 15th, 2006 at 1:48 pm
Regarding 1 and 4, yes. Regarding 5, if the feds know of known/suspected al qaeda members, seems they’d already know some general means of tracking them or they wouldn’t be known/suspected al qaeda members.
May 15th, 2006 at 1:52 pm
Addison:
They were only as legal as they were constitutional. If you agree with how the court ruled, they were both legal and constitutional. If you disagree with the court, they were neither. Personally, I think McCain-Feingold and the Aliens and Sedition Act violated the First Amendment, so from where I sit they were neither legal nor constitutional. I’m pretty confident that 9 out of 9 current Supreme Court Justices agree with me on the Alien and Sedition Act, and I’m cautiously optimistic that 5 out of 9 do on McCain-Feingold, as well.
As to Dred Scott, I’m not sure what part of the Constitution you think it violated. The Constitution, as existed at the time, did not prohibit slavery, enfranchise blacks or even require state-based segregation to make any pretense of being “but equal.” I suppose one could quibble over the reasoning of Dred Scott’s ultimate holding, but only on the question of whether the then-existing Constitution required the court to rule that way. I can’t see how it would have prohibited the court from doing so.
That’s a basic principle of democracy, not the Constitution. The Constitution is merely law. It’s a pretty good law, for the most part, but it’s not perfect, and frankly speaking, most of it is boring as hell. The only thing special about the Constitution is that it is the supreme law of the land, so generally speaking, the only way a law can be “illegal” is if it violates the Constitution, as opposed to merely conflicting with another statute. [I say “generally” because the Constitution is not the only law that trumps ordinary legislation; treaties do, as well.] All good ideas are not constitutional, and all constitutional ideas are not good.
May 15th, 2006 at 1:54 pm
That works for the original suspects, sure, but not for those who become suspects precisely because they kept calling the known al Qaeda guys. To catch those guys, we have to pay attention to who calls who, or at least which phone numbers call which other phone numbers – and then seek a subpoena to go after the owner of the phone number that was not previously suspected but is now closely associated with the one that was.
May 15th, 2006 at 2:10 pm
X…here’s a concept, the Feds could GET A WARRANT for everyone who called a known AQ number or even suspected number. Thats a lot different than give me a database of everyone phone call ever made in the entire United States.
May 15th, 2006 at 3:06 pm
Manish, to play Devil’s advocate, how would the Feds know what phones called or were called from a known AQ phone number without a list of such calls in the first place?
It’s my understanding that the NSA has the phone call logs, but to actually look up the phone number to find out who owns it or to tap/do something about it, a warrant is required.
May 15th, 2006 at 3:15 pm
Manish:
That’s a concept, all right. More specifically, it’s a patently unconstitutional concept.
May 15th, 2006 at 3:31 pm
AS..as far as I know, the feds can usually publicly available information all that they want. They can search google for whatever they want, whenever they want. Type your phone number into google and see what happens.
May 15th, 2006 at 3:39 pm
NICE.
I was yelling at a bunch of commenters on Dr. Sanity about this a few days ago. Told them they were as bad as leftists (which upset them a bit, i think). Their argument for why this is ok is essentially the same as the leftie one on .50BMG bans. “You don’t really need a gun that big do you?” = ” If you have nothing to hide why does it bother you?”
Screw that.
May 15th, 2006 at 4:04 pm
Yeah, the .gov could abuse the program and use it against US Citizens and not just to find and kill foreign terrorists.
But the .gov could abuse its’ ability to use force and use it against US Citizens and not just to find and kill forign enemies too, so let’s disarm the .gov.
May 15th, 2006 at 7:34 pm
Those arguing that this sort of surveillance is legal are operating on the assumption that they know what is being done and how it works. How do they know all this? Because they trust what the people doing the spying say they are doing. That’s foolish, especially since there has been no judicial oversight and the official story keeps sloughing off layers as we learn more about what is really going on. No one will actually know enough to judge whether this stuff is legal until there has been an investigation and we either have reason to believe the spies’ version of the story or not.
Also, the timing of this new round of media attention may not be related to Hayden’s appointment. There is a lawsuit filed by the Electronic Frontier Foundation (www.eff.org) against AT&T, and there have been numerous filings in the past couple of weeks by both AT&T and DOJ. Also, the USA Today story broke before Hayden was appointed, and Goss resigned not because of this NSA flap, but because of the poker and prostitutes thing.
May 15th, 2006 at 11:21 pm
Uncle: I know how passionate of a Libertarian you are. I can appreciate that you hate this stuff, I remember how pissed you were about the initial NSA reports. I’ve said before that I cherish the back-and-forth that happens in the comments on your blog. It was troubled to see someone (Scalzi) go off on the people commenting when they were making points in a discussion. My concern was that you would rip into visitors as well. You haven’t and I’m happy for that.
As for the topic at hand, I have a few points;
– The information (phone records) can be purchased, they are not secret.
– There is a provision in one of the communications bills (can’t find the link, but it may be Volokh) that specifies all telecommunications providers must provide phone records if requested by the FBI. I doubt the FBI requested them, it was pro’lly the NSA, so the FedGov pro’lly f-d-up there.
– What really pisses me off is that the papers have been outing a secret government program that is intended to help us. If they are breaking the law, revealing it now won’t help us as much as preventing the next attack. Consider this: if the papers sat on this information for a few years until the “War on Terror” was less – perhaps say … until we were no longer active in Iraq … would the crimes committed still be crimes? I say Yes. And if they were, would we (the US Citizens) still be in a position to prosectute? Again Yes (assuming Sandy Berger doesn’t get into the National Archives again). And – if this info had been kept close to our protective chests – would we be able to discuss in a less emotional mindset if we did it after-the-fact?
It just occurred to me that what we have here is a digital lynching. The MSM is whipping us into a frenzy of (possible) crimes of the current administration with the intent of beating the Oval Office into submission. We have “To Kill A Mocking Bird” happening on the Big Stage right in front of our eyes. My primary compaint has always been the way that we are being manipulated by the Media.
With regard to this information being nothing new, here’s the link to the 2005 NYT article:
http://www.nytimes.com/2005/12/24/politics/24spy.html?ex=1293080400&en=016edb46b79bde83&ei=5090
Please note this line: “Some officials describe the program as a large data-mining operation.”
(A side complaint with this article is this line:
“The NSA program reaches into homes and businesses…”
But it doesn’t “reach into homes” – it pulls data logged from switches and computers _at.the.phone.company_. Those lying liars and the lies they tell….)
With regard to this being a ploy to soil the next CIA chief, here is a link to the USA Today article about the story with a picture that shows PoTUS with Hayden in the background and this caption:
“Gen. Michael Hayden, nominated by President Bush to become the director of the CIA…”
http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm
We are being played gentlemen. I don’t know what else to say.
I’m mad as hell at the FedGov, the IslamoFascists, and the MSM.
It seems like they are playing Divide and Conquer on us.
May 16th, 2006 at 12:16 am
I don’t call it the Perpetual Patriot Act for nothing. Do you really think it’s gonna wind down in a few years? What about the War on (some) Drugs? The War on Povery?
May 16th, 2006 at 12:18 am
_Jon, the NYT link appears to be good. Thanks for passing it on.
May 16th, 2006 at 12:35 am
Yeah, I know. And I agree.
It’s the weak point in the entire rant.
But if we can see that we are being whipped into a frenzy and calm down – perhaps wait for the next administration even – we can let cooler heads prevail. And my reference to Berger is a tip that if we do that we may lose evidence. It’s a risky, possible lose-lose situation.
May 16th, 2006 at 9:40 am
[…] Increasingly, it looks like someone went and got me all worked up for nothing. […]
May 17th, 2006 at 2:31 am
The issue isn’t abuse that is occurring, it’s the potential for abuse. If this is an effective tool for finding terrorists (debatable) it would be just as — if not much more — effective to find a larger group of people that disagree with the policies of the government. Be careful what you ask for.