SCOTUS ruling > Any statute

With its two new GWB-nominated justices, you can’t be suggesting seriously that the newly-announced NSA program would face any difficulty at the Supreme Court. If you doubt that total fealty on War on Terror issues was the core qualification for those posts, I have two words for you: Harriet Miers.

chsw–

Yes, the Clinton Administration was every bit as bad on personal liberties as is the current one. Remember the “Clipper chip”? That was part of the Clinton-era initiative to ensure that the Feds could eavesdrop on all domestic encrypted communications.

Meryl–

Over two decades ago, I learned in law school that the Europeans were amazed at the lack of data privacy laws in this country. The issues are complex, but the implications are huge. Bruce Schneier writes frequently on the implications of living in a surveillance society; the “future of privacy,” “face recognition in bars,” and “data mining” articles here are all worth a look.

No, it isn’t. It’s constitutional under Smith v. Maryland. It’s illegal under the Pen Register Statute and the Stored Communications Act.

And it’s unconstitutional for the Executive to ignore these statutes.

I agree. Neither do mine. That doesn’t change that fact that it’s legal. Well, at least that it’s legal until a federal court says it isn’t. The SCOTUS decision Smith v. Maryland said that cops can get phone records without a warrant. Some states have outlawed this by state law or via the right to privacy that’s in most state constitutions. Others have not. In any case the controlling authority for feds is the federal courts.

Whether or not it should be legal is another matter entirely. Smith v. Maryland was about a single individual and a single phone line, and said nothing about anything on the scale of the NSA program. And at least part of the rationale behind it was that calling out was basically similar to asking an operator to connect to a specific phone number. There’s obviously no expectation of privacy there. But today the whole process is automated. Presented with a test case like this, SCOTUS might rule differently.

With good reason, we shouldn’t trust the government to care only about criminal acts. Once the government can gather all sorts of other information about you (for example, who your friends are, what books you read, what petitions you’ve signed, who you sleep with), it then has the capacity to use that information against you in all sorts of ways that have nothing to do with catching terrorists. Certainly, we’ve seen this throughout history. Information is power, and power can (and usually will) be abused. Suppose you have to consider that every act, every phone call, every email is permanently preserved in government computers and thus accessible even many years from now to those officials who will decide whether to hire you for a government job, oppose you for elective office, admit you or your child to a public university, or audit your taxes. Might this have an effect on your conduct and conversations?

chsw

I would think that getting a warrant to keep track of suspicious persons’ phone records would be far more useful.

chsw

That said, there’s a legal issue here that needs resolving. As I understand it, there’s a difference between a wiretap and the phone records that NSA has been collecting. A wiretap is an invasion of privacy and requires a warrant. But records of what calls were made to and from a specific number (the data NSA is collecting) are not private. That data is held by a third party (the phone company) and so there is no expectation of privacy. Local police agencies get phone records without a warrant all the time. So what NSA is doing may in fact be legal.