Centerfield

This is the kind of fourth-rate nonsense that one might expect of a school newspaper in Sheridan, WY, or Daily Kos, not a nationally-reknowned law professor and author of one of the more important treatises on ConLaw. If he were talking about content-based surveillance, which is implicated in the earlier NSA program to come to light, Tribe might have a point. Were the data analyzed by this program being collected surreptitiously by electronic surveillance, then, too, Tribe might have a point. But that is not this program. This program involves the reciept by the government of various data given to it - as it turns out, illegally - by various telephone companies. The Fourth Amendment is not implicated in this program: Tribe fails to even begin to make the case. Whose Fourth Amendment rights are being violated? How? By whom?

By analogy, Tribe is arguing that a camera placed on a highway that is capable of recording the license plate of any vehicle driving past it is a violative of the Fourth Amendment. If you thought he couldn't sink any lower than his Alito hearings testimony (to give him his due, Chereminsky at least had the courage to be honest about his purpose being to stick in the knife), it turns out there's a ways to go yet. I'm sorry, Prof. Tribe, but this is pure, unfiltered propaganda in its rawest, least-coherent sense, and it is deeply disappointing that someone who does know better is fanning the flames among those who don't.

Posted by: Simon at May 17, 2006 01:38 PM

Simon, thanks for sticking to the technicalities of what currently is and isn't legal, and, as usual, missing the point that it's becoming harder and harder to even fart privately.

Are we really supposed to be consoled that it was the telcos that illegally shared data, while all the feds did was eagerly accept and analyze it? I guess maybe if you're the sort of person who is entirely untroubled by such things as the proliferation of surveillance cameras like the legal traffic cameras you are so fond of, then I guess you would be consoled by such a detail.

Technicalities don't console me. I'm not talking about what's technically legal, I'm worrying about the decaying spirit of our alleged right to be secure from unreasonable search. Did you miss that, or just not understand what I meant?

Posted by: bk at May 17, 2006 01:54 PM

Those rights, Brian, are protected by the fact that the government's ability to obtain this information is limited by the Fourth Amendment, and the ability of private actors to give this sort of information is limited by statute. What went wrong in this situation was that the telcos broke the law, and - in a spectaclar display of the law of unforeseen consequences - have been exposed to massive civil liabilities by the government's precipitancy. The legal fallout from the revelations that this data was given, voluntarily, without subpoena or court order, and thus clearly in violation of 18 U.S.C. §2702(a)(3), is very likely going to be massive, and that's even assuming that a Democratic President doesn't assume office in 2009 and immediately initiate criminal charges against the telcos. Pursuant to §2707, the involved Telcos have declared open season on themselves. So I think this crisis will be self-correcting. In the future, no telco will expose themselves to this kind of risk without a court order (a fortiori if they are prosecuted as they should be, but as the Bush administration no doubt will not), and the government won't ask again without having gotten a court order.

My only concern over this program is what is represented by Tribe's screed: the inevitable misrepresentation of what's going on by liberals and their allies, who are anxious to (a) set the stage for the forthcoming meltdown over Bush's third SCOTUS nomination, and (b) manipulate this situation - and any other that come down the pike, for that matter - for purposes of chasing the white elephant.

Posted by: Simon at May 17, 2006 02:25 PM

2709. Maybe. And have you maybe read through the subscriber agreements and terms of service of the respective accused companies? I would believe those to be somewhat relevant.

Never jump ahead of the facts without clearly labelling it as speculation. We still don't know exactly what if anything was conveyed, or by whom, to whom. Two of the three companies listed in the USA Today article have issued flat denials. We have the word of ONE reporter citing anonymous sources that anything was conveyed at all. Thin gruel for class action, normal for paranoid hyperbole.

Posted by: Tully at May 17, 2006 03:25 PM

§2709 might yet exonerate them. I'll readily concede that much: might. But I fail to see the relevance of what the subscriber agreements and terms of service of the respective accused companies; §2702(a)(3) does not, after all, say "a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service unless it reserves that right in its subscriber agreement or terms of service;" it says "shall not."

And in any event, I don't want us to lose sight of something vitally important: while we can (and I'm sure will) continue to see worthwhile discussion about whether the telcos broke the law or didn't, or which aspect of the law was or wasn't broken by their actions, it should be kept front and center that this is not a fourth amendment issue, as Tribe ludicrously asserts.

Posted by: Simon at May 17, 2006 03:43 PM

Brian,

One of your best posts, and something that has been on my mind lately.

Technicalities don't console me. I'm not talking about what's technically legal, I'm worrying about the decaying spirit of our alleged right to be secure from unreasonable search.

I agree, I think our conversations, sometimes on this blog, fail to address the big picture. I think we need to ask the bigger question about how far we are willing to let the government go. To me, the question isn't who are they actually listening to, for what purpose, or whether or not it is technically legal, but whether or not we even want them to even have that capability in the first place. Is it really protecting us? Is the government even capable of effectively using a system that contains as much data as every phone call in America? With that much data what are the error rates and how does that threaten the civil liberties of innocent people?

I personally think, assuming the USA Today article is accurate, and I agree with Tully it is suspect, that the government under this administration has crossed the line. It isn't the idea, take the Patriot Act for instance, it is how they take the idea and implement it with little regard for checks and balances.

I could care less or not if it is technically legal. If it isn't, it should be. You want to listen to my phone calls, get an effing search warrant.

Posted by: Mathew at May 17, 2006 03:52 PM

What Simon said. Tribe is saying that the 1967 ruling and the 2001 ruling undermine the 1979 ruling that who you are calling is not protected by the 4th Amendment. How can a 1967 case undermine a 1979 case? The justices in the 1979 case were well aware of the 1967 ruling.

The data allegedly (as Tully quite accurately notes) being obtained here is very distinguishable from the data being collected in the 2001 case involving thermal vision devices. Using that technology, the police could literally see inside the house, observing the contents of the house and the specific activities of the owner inside of it. It was only new technology used by the government, not new technology voluntarily used by the citizen, which allowed the government to see inside the house. In other words, the homeowner did not voluntarily conduct activities outside the house. When you make a phone call, you voluntarily choose to leave, electronically, the confines of your own home, and thus you lose a certain amount of 4th Amendment protection.

Posted by: PatHMV at May 17, 2006 03:53 PM

What's unreasonable about the government accessing information which is routinely sold to unknown third parties without the user's knowledge or consent (other than, presumably, signing the user agreement)? What reasonable expectation can I or anyone else have that this info be kept private?

Posted by: BrianOfAtlanta at May 17, 2006 04:08 PM

Mathew, we sometimes focus on the details (the "little picture") because they are very, very important. If the little details provided are not true, then the big picture looks very different.

Take the Patriot Act. Back when Bob Young was posting here, I asked him what, specifically, he didn't like about the Patriot Act. He refused to answer. While there are one or two minor things within the Patriot Act subject to quibbling, most of it is really nothing to get in a froth in at all, even if one is inclined to get in a froth about the things the NSA has recently been accused of. It just doesn't do what most of its critics accuse it of doing. The details are required before discussing the "big picture".

Yes, there may be a need for a big picture discussion. But that discussion is useless without having some common ground on the facts of what is going on.

Posted by: PatHMV at May 17, 2006 04:17 PM

By the by, Brian, I know you are not overly fond of worrying about the precise language of the constitution, but your comments about the "unreasonable" clause of the 4th Amendment aren't accurate. Looking at the calling data patterns is not permissible because it's a "reasonable" search, but because it's not a search at all.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

There is no prohibition there against the government "spying" on you. They can constitutionally follow you every where you go outside of your house. They can write down the names of every single person you meet with, they can watch you in the local bar and see who you talk with. If they sit at the table next to you, they can listen to your conversation (it gets more iffy if they use electronic techniques to do so). Why? Because none of that constitutes a search or seizure of your person, house, papers, or effects. The founding fathers were pretty good at writing. They knew how to say what they meant and mean what they said. If you don't like it, you are free to campaign for an amendment. That you want it to mean something different does not make it so.

People kept private journals back then, and snuck around to have secret affairs, and spied on each other and followed each other around. Long before we had telephone calls, we had a mail service. And the law on finding out what phone numbers you call is very similar to the law on finding out who you send mail to. One set of rules apply to opening your mail and seeing what you write. Another, and easier, set of rules apply to seeing the names of the people with whom you are corresponding.

Posted by: PatHMV at May 17, 2006 04:26 PM

Matthew, I'm with you.

Brian, I opt out of all the marketing I can with companies I regularly do business with. I do not exist for the purpose of being a "lead" for some salesman. These "by using this phone, you consent to us handing over your info to any partners, blah blah.." small-print clauses don't impress me. Companies' "rights" to sell my information are on shaky ethical ground to begin with, even if it is legal.

It shouldn't be a question of how much information we have a right to keep private, it should be a question of how much information can companies and agencies take.

Posted by: JP at May 17, 2006 04:30 PM

Something to add to Pat's differentiation of Katz (389 U.S. 347) and Kyllo (533 U.S. 27) (respectively, the 1967 and 2001 cases to which one must presume Tribe alludes) from the NSA data mining program. In Katz, the accused made a telephone call, from a public telephone booth, which implicated him in a federal crime; the conversation was "overheard by FBI agents who had attached an electronic listening and recording device to the outside of the telephone booth from which the calls were made." The Court held that that this eavesdropping - which was content-based, you'll notice - was an unconstitutional Fourth Amendment search, even if the accused was in a public phone booth. But one cannot seriously analogize the NSA program now at issue to the FBI's activity in Katz; in fact, the closest analog to Katz would be, if Mr. Katz had finished his telephone call, walked away from the phone, and the FBI had then immediately grabbed the phone, hit redial, and asked for (and gotten) the number that Mr. Katz had dialled. That is essentially what the data mining program has been alleged to do, with the important caveat that the government was allegedly GIVEN that information.

There are major practical and political obstacles that will frustrate the attempts of Democrats to make this into a push issue. Practically, while there are some fairly complex statutory issues surrounding both programs, neither NSA program falls afoul of the Fourth Amendment (the call monitoring program is entirely covered within the well-defined parameters of the border search exception, and the data mining program does not involve a search or seizure), and politically, all polls that I have seen indicate that the majority of the public don't have any objection to the program. Democrats will no doubt pull their usual trick and claim this means that the public just don't appreciate or understand the contours of what the programs actually entail, but such efforts will fall flat.

Posted by: Simon at May 17, 2006 04:37 PM

I could care less or not if it is technically legal. If it isn't, it should be. You want to listen to my phone calls, get an effing search warrant.

We need to be careful about specifics here.

There are two programs at issue here: the first program to come to light, which as I understand it is content-based monitoring of international calls, is constitutional under the border search exception (see U.S. v. Ramsey, 431 U.S. 606), but it may well turn out that it IS illegal, as Orin Kerr has discussed. It should be axiomatic that the law can, and usually will, provide finer-grained protections than the Constitution.

The second program to come to light, the data mining program, which is all Tribe's screed (as I read it) purports to address, doesn't implicate the Fourth Amendment to begin with, but it has almost certainly led to a violation of the law. That the law has not been violated by the government is true, but there is a clear logical failure in assuming that our rights can only be violated by the government, rather than by private actors, and thus, that the law must restrain government conduct in all instances, rather than sometimes (as here) regulating private actors.

In this case, your applicable rights are already protected by statute; for reasons explained above and elsewhere, if the USA Today report turns out to be substantially accurate (although, pace Tully, the reports may yet turn out to be entirely flawed), your rights were abused by private actors, not the NSA, and they can now be dragged into court, either by you or by the government.

Posted by: Simon at May 17, 2006 04:53 PM

Simon, I agree entirely that there's no Fourth Amendment issue there on the face of it. I'm also saying there's no issue at all there yet on the face of it--we don't have any facts, just single-sourced anonymous allegations. No substantiated facts, no issue. Just speculation and a heck of a lot of dueling rhetorics.

I can see all sorts of ways the various statutes might "exonerate" the accused, depending on (speculative) facts and circumstances. And the subscriber agreements and/or terms of service could indeed preclude the complaint in the first place. Failing to read the fine print before subscribing doesn't mean you're not bound by it. You don't have to like the ethics of it, what counts is the letter of the agreement.

Though why someone would need "exoneration" when no actual crime or tort has as yet been shown is begging the question. To put it mildly.

I agree on the practical results of trying to make it a campaign issue. The only use in that regard is for base-stoking the faithful. But overall it's a losing issue with the electorate, just as with the TSP program. Accusing the opposition of protecting Americans from terrorism is counter-productive with all but True Believers. Right after 9/11, the admin was brutally excoriated for not connecting the dots. Now the same people want to excoriate them for (possibly) trying to connect the dots. Heh.

You want to listen to my phone calls, get an effing search warrant.

Please note, Mathew, that there is no allegation of actual wiretapping at all in this round of unsourced allegations--other than via journalistic hyperbole. No content interception.

Posted by: Tully at May 17, 2006 04:58 PM

Simon (and various others who hope to educate me) has pointed out that this is not a 4th Amendment issue. But they all point back to a single Supreme Court case. That case may or may not be relevant, since it dealt with obtaining records of a single individual's records; not to mention being in a very different technological era. What we have here, in contrast, is a massive accumulation of records of everybody in a telco's service area -- which, thanks to advances in technology, can be analyzed in ways not contemplated in the 1970s.

I note, just in passing, that the Chairman of the Senate Judiciary Committee appears, in a statement earlier this week, to have some doubts about the Constitutionality of the data collection. (Of course, he may be as legally ignorant as I, I suppose. ;-)

Posted by: wj at May 17, 2006 05:01 PM

Take the Patriot Act. Back when Bob Young was posting here, I asked him what, specifically, he didn't like about the Patriot Act. He refused to answer . . . It just doesn't do what most of its critics accuse it of doing. The details are required before discussing the "big picture".

I remember trying the same thing with someone at another blog who was railing against the bankrupcy bill last year; I asked which part of the bill in particular they objected to, or which part was the most objectionable part. They were honest enough to admit they'd never read it. They were criticizing this legislation premised purely on what they'd read about it in a few left-leaning newspapers and blogs, who all hated the bill, and this exemplar of independant-minded free thinking just took what they said at face value. As you'll know, the most famous of all the clauses in the Constitution is the one that provides that "all legislative poweers herein granted shall be vested in a Congress of the United States, which shall consist of the editorial boards of the Washington Post and the New York Times."

Fly me up on a space shuttle, show me Moscow and Washington DC from orbit, and I'll tell you that from this height, they both look about the same to the naked eye: a little grey dot on a blue line surrounded by green. Taken at a sufficiently high level of generality, we all agree that we want to deter, fight and defeat terrorism without surrendering the civil liberties that make this country unique. The big picture is easy, but the devil is in the details.

Posted by: Simon at May 17, 2006 05:04 PM

The big picture is easy, but the devil is in the details.

Yep. As always.

Posted by: Tully at May 17, 2006 05:07 PM

I both agree and disagree, Tully. How is that for fence sitting?

Look, I am not saying that focusing on the details is not useful, it is; however, sometimes it is good to take a step back and ask what kind of country it is we want to live in. Regardless of the accuracy of the USA Today article, or the legalities of what Bush is doing, Brian raises some pretty important questions. Even if the perception of what the administration is doing is wrong, there are those who have responded based on that perception and said it is perfectly okay for the goverment to have the capability to monitor all phone calls because we are at war with terrorism. Whether on not that is truly what is going on, it is a worthy discussion regardless of what the Fourth amendment says or allows.

We need to get past the clever details of what technically is and is not private according to what has been legislated and ajudicated, and TELL our senators and congressment what we think SHOULD be private.

I agree fully.

Posted by: Mathew at May 17, 2006 05:18 PM

Mathew, we sometimes focus on the details (the "little picture") because they are very, very important. If the little details provided are not true, then the big picture looks very different.

We don't sometimes do it, but all the time. I guess it depends on the way one thinks, but IMO, we are nothing without vision. The broader question here needs to be addressed before we can hire the lawyers to iron out the details. Right now this country is going through an identity crisis because of September 11th. We do not know how far we want the government to go to protect us and we should find out before proceeding, IMO. The notion we have to act in haste with out fully thinking things through is assinine, and had we realized that in the weeks after the attacks the Patriot Act would be a stronger and more effective law. It is the same hyper-fear crap that the government has spread for centuries to expand its power into areas of our lives where we would otherwise want to be left alone. The drug war, anyone?

This gets to the core of the problem. If nothing is wrong with it, than why does this administration not explain exactly what it is doing? Why are we always finding out about these programs after the fact? Did they really not think this was going to be an issue? Why are they not allowing for this debate to happen? It's called obtaining buy-in, and they suck at it.

Posted by: Mathew at May 17, 2006 05:30 PM

the Patriot Act would be a stronger and more effective law

How is it weaker and less effective than it could be? What don't you like about it? Just that it's controversial? Everything government does will always be controversial with SOMEBODY. Controversy alone is not enough to condemn it. What, exactly, do you think is wrong with it? Posted by: PatHMV at May 17, 2006 05:50 PM

If nothing is wrong with it, than why does this administration not explain exactly what it is doing? Why are we always finding out about these programs after the fact?

Perhaps because right now, if there ARE terrorist cells in the United States that would be caught in the NSA dragnet, right now, every single one of them are migrating to Qwest, the service provider that refused to hand over the details. I mean, c'mon; you're essentially asking why the police don't publish notification in the local paper two days before they raid a house suspected of being a meth lab. To undertake this kind of monitoring requires the targets of that monitoring to be unaware that it's happening. In Imperial Hubris, Michael Scheuer recounts a leak to the press that the government had sucessfully tracked certain senior Al Queda operatives by tracking their cell phones. Needless to say, it made it onto the internet editions of the newspapers, and almost immediately, said senior Al Queda operatives simply ceased using cell phones. Likewise, the revelation of these programs to the press has probably destroyed (and certainly diminished) any effectiveness they might have had. Posted by: Simon at May 17, 2006 06:33 PM

Also migrating to QWest: anyone who values their privacy and can figure out how to do so. If I was with AT&T, I would be at the head of the line -- even though I am not, as far as I know, engaged in any illegal activities . . . beyond occasionally exceeding the speed limit.

Posted by: leaving at May 17, 2006 06:49 PM

Also migrating to QWest: anyone who values their privacy and can figure out how to do so.

Yes - anyone who inexplicably doesn't think that the government will now come back to Qwest with a subpoena pursuant to § 2703(c)(1) et seq? Posted by: Simon at May 17, 2006 07:00 PM

How is it weaker and less effective than it could be? What don't you like about it? Just that it's controversial? Everything government does will always be controversial with SOMEBODY. Controversy alone is not enough to condemn it. What, exactly, do you think is wrong with it.

There are not specific provisions in the Patriot Act I do not like in theory. I think for the most part the provisions of the Act make much needed changes in law enforcement procedures that should have been made a long time ago. I supported the Act, but opposed its renewal the last time around.

I think, mostly under Ashcroft, there were many events, the controversies you speak of, that led to confusion about what the Patriot Act was intended to do. Had more time been taken to strengthen the law, there would have been less room for civil liberty organizations to cry foul. It's a big Act, I am not going to spell out every line that I am talking about, but I worked for Congress shortly after it was signed into law, have read it, and in general believe the language is often too broad and could have been tightened significantly to draw clearer lines. Furthermore, I think the whole sunset clause issue has created years of debate that could have been avoided. We either should have had a sunset clause or not. This whole temporary approval issue seems rather petty and ridiculous to me... Another provision that was written for political and not logical purposes.

I mean, c'mon; you're essentially asking why the police don't publish notification in the local paper two days before they raid a house suspected of being a meth lab.

Yes, I know, it is for the purpose of national security. How many times do they have to use that excuse before you realize that is what it is? That to me doesn't justify not explaining why such a program would exist. Really, if they didn't understand this was going to come out than we have bigger problems. I think they did know, and like it, because it helps the "we are protecting you" message. Right or wrong it has worked, or at least that is what the polls currently say.

Posted by: Mathew at May 17, 2006 07:27 PM

PatHMV on Kyllo??:
"Using that technology, the police could literally see inside the house, observing the contents of the house and the specific activities of the owner inside of it."

From Kyllo: "The scan showed that the roof over the garage and a side wall of petitioner's home were relatively hot compared to the rest of the home and substantially warmer than neighboring homes in the triplex."

It was only new technology used by the government, not new technology voluntarily used by the citizen, which allowed the government to see inside the house. In other words, the homeowner did not voluntarily conduct activities outside the house. When you make a phone call, you voluntarily choose to leave, electronically, the confines of your own home, and thus you lose a certain amount of 4th Amendment protection.

Like a phone call, the heat emitted off your home is going out of your home into the public. Katz test states that "the Fourth Amendment protects people not places." That standard Fourth Amendment analysis is: did the person have an expectation of privacy that society is prepared to recognize as reasonable? It would seem that most people would believe that who they call should be as private as what they discuss. I think most Americans would recogize that as a reasonable expectation of privacy. Indeed, I think most Americans expect more privacy in who they make their phone calls to, than the relative heat coming off their homes.

Posted by: Luzer at May 17, 2006 08:12 PM

I know, it is for the purpose of national security. How many times do they have to use that excuse before you realize that is what it is?

Are you really implying that it is for another purpose? Such dark conspiracy theorizing (utterly unsupported by evidence) has hitherto been the exclusive province of the far left; when did it become acceptable in polite company? Posted by: Simon at May 17, 2006 08:55 PM

Simon,

I mean, c'mon; you're essentially asking why the police don't publish notification in the local paper two days before they raid a house suspected of being a meth lab. To undertake this kind of monitoring requires the targets of that monitoring to be unaware that it's happening.

I like analogies, but this one's not quite right. Publishing an announcement before the raid means that the surveillance is more or less complete, evidence has been obtained for a warrant, and the police are now about to arrest the suspect. A better analogy might be requiring the police to publicly disclose when they are surveilling suspects in a criminal investigation in order to get leads for subjects of an actual indictment. I think that's closer to what the government is doing in this case.

In this latest episode, at least as has been disclosed publicly, the government is not monitoring anyone's phone calls, or listening in on anyone's conversations-- that would completely change the parameters of this debate. As has been reported, they are merely receiving a database of who is talking to whom which (presumably) could enable them to more rapidly determine who is having repeated conversations with suspected terrorists, thereby enabling those new leads to be monitored and surveilled (again, presumably with a warrant). It also has some retroactive capability-- after we successfully nab Terrorist A, we can check his phone records and possibly find that he was collaborating with Terrorist B and C. It's all recorded.

Of course, if there were any terrorist or terrorist supporters (like with the war in Northern Ireland, America has for more fund raisers and supporters than actual terrorists in our midst) who were careless enough to communicate with one another over the phone prior to this story, I'd venture to say they've since hung up the phone and will now find new ways to pass messages to one another-- thereby rendering this particular program more or less impotent.

Posted by: Bobby at May 17, 2006 09:24 PM

You people are the center? God help us.

Posted by: Luzer at May 17, 2006 09:29 PM

Sometimes, I too have that sentiment Luzer.

This phone story is just the tip of the conversation. If we limit it to just phone records Bobby is right, but we are talking about the broader issue of security v civil liberties.

1972 Supreme Court case that states the executive shall not have sole power in deciding what constitutes reasonable search and seizure
The NSA program and Hayden
Goss's 1999 clash with NSA
Changes Negroponte has made to law as well as bouncing Goss
more than just allegations
Fox had a story that points to Telcos outsourcing phone records to Israel to create deniability

an issue apart from civil liberties - a trillion for Iraq, 120 billion for 20 interceptors and how much for Big Brother?

Perhaps the "Brazil" blogger has it in perspective (see May 12th - 17th posts) regarding the size of the beast

The Constitutional issues and the policy rationalities are very real debates given the endlessness of our present "war". Where is the "informed" part of this critical debate? To dismiss these concerns, to dismiss the vital channels for whistle-blowing and Congressional corrections, to fund secret organization the House wants to be empowered to arrest "all felons" with warrantless evidence based on "subjective" standards of reasonableness and not probable cause is not very Centrist, or Conservative, or Libertarian or Liberal.

This is what I think is being discussed here and not "phone record mining which hasn't been proven".

Posted by: maxtrue at May 17, 2006 10:01 PM

corrected link to Israeli outsourcing

Posted by: maxtrue at May 17, 2006 10:13 PM

LMAO

Posted by: Tully at May 17, 2006 10:15 PM

Changes to security laws posted above include 15 U.S.C. 78m(b)(3)(A) which now allows a dumby corporation to be set up under secret governmental decree which then can be outsourced by Telcos and ISPs to provide deniability to real corporate data mining outsourced by the government. How many dots are needed to complete this picture?

Again, it is not a question of whether to be "totally aware" (some good reasons not to however) but how to (Congressional and Judicial review with clear channels for whistle blowing). Is anyone here suggesting that all governmental employees not swear their highest oath to the Constitution and are not compelled to speak up when confronted with reasonable abuse of law? Like Saddam, should we wait until Big Brother is too strong to contain?

Posted by: maxtrue at May 17, 2006 10:49 PM

Bobby - fair point.

"MaxTrue""

Changes to security laws posted above include 15 U.S.C. 78m(b)(3)(A) which now allows a dumby corporation to be set up under secret governmental decree which then can be outsourced by Telcos and ISPs to provide deniability to real corporate data mining outsourced by the government. How many dots are needed to complete this picture?

Uh...Apparently a few more. 15 U.S.C. 78m(b)(3)(a) actually says:

With respect to matters concerning the national security of the United States, no duty or liability under paragraph (2) of this subsection shall be imposed upon any person acting in cooperation with the head of any Federal department or agency responsible for such matters if such act in cooperation with such head of a department or agency was done upon the specific, written directive of the head of such department or agency pursuant to Presidential authority to issue such directives. Each directive issued under this paragraph shall set forth the specific facts and circumstances with respect to which the provisions of this paragraph are to be invoked. Each such directive shall, unless renewed in writing, expire one year after the date of issuance.

If you're saying that this has been amended recently, please cite the public law (chapter and verse, specifically, by section - that's why they write statutes in that conveniently-citable form) that accomplished this feat.

Posted by: Simon at May 17, 2006 11:35 PM

Tully,
Glad to make you laugh. One more shot gun blast - the Israeli connection may be a stretch for most (Bush did suggest outsourcing UAE & Accenture)but given the ease intelligence organizations can set up fronts and work with a company like this, government could easily create domestic deniability and capability. Sure I think we need a global eye to track extremely dangerous individuals and small groups through the ziga bits of binary code (even here in the US), but there is little reason to tread on sacred principle, democracy or the best cost v benefit analysis. You think Rove is planning the next campaign with the slogan "trust me"?

Somehow I don't think our Founding Fathers would be too thrilled with Big Brother on anything less than a very short leash with Congress holding a very big stick. The reverse would have angered them, yes?

Posted by: maxtrue at May 17, 2006 11:52 PM

Simon,
As of May 5th, 2006.... Negroponte has the power he needs to complete the dots.

Posted by: maxtrue at May 17, 2006 11:57 PM

speaking of crime, Hakim Bey, anti-coyrighted and freely piratable material:

Crime
JUSTICE CANNOT BE OBTAINED under any Law--action in accord with spontaneous nature, action which is just, cannot be defined by dogma. The crimes advocated in these broadsheets cannot be committed against self or other but only against the mordant crystallization of Ideas into structures of poisonous Thrones & Dominations.
That is, not crimes against nature or humanity but crimes by legal fiat. Sooner or later the uncovering & unveiling of self/nature transmogrifies a person into a brigand--like stepping into another world then returning to this one to discover you've been declared a traitor, heretic, exile. The Law waits for you to stumble on a mode of being, a soul different from the FDA-approved purple-stamped standard dead meat--& as soon as you begin to act in harmony with nature the Law garottes & strangles you--so don't play the blessed liberal middleclass martyr--accept the fact that you're a criminal & be prepared to act like one.

Paradox: to embrace Chaos is not to slide toward entropy but to emerge into an energy like stars, a pattern of instantaneous grace--a spontaneous organic order completely different from the carrion pyramids of sultans, muftis, cadis & grinning executioners.

After Chaos comes Eros--the principle of order implicit in the nothingness of the unqualified One. Love is structure, system, the only code untainted by slavery & drugged sleep. We must become crooks & con-men to protect its spiritual beauty in a bezel of clandestinity, a hidden garden of espionage.

Don't just survive while waiting for someone's revolution to clear your head, don't sign up for the armies of anorexia or bulimia--act as if you were already free, calculate the odds, step out, remember the Code Duello--Smoke Pot/Eat Chicken/Drink Tea. Every man his own vine & figtree (Circle Seven Koran, Noble Drew Ali)--carry your Moorish passport with pride, don't get caught in the crossfire, keep your back covered--but take the risk, dance before you calcify.

The natural social model for ontological anarchism is the child-gang or the bank-robbers-band. Money is a lie--this adventure must be feasible without it--booty & pillage should be spent before it turns back into dust. Today is Resurrection Day--money wasted on beauty will be alchemically transmuted into elixir. As my uncle Melvin used to say, stolen watermelon tastes sweeter. The world is already re-made according to the heart's desire- -but civilization owns all the leases & most of the guns. Our feral angels demand we trespass, for they manifest themselves only on forbidden grounds. High Way Man. The yoga of stealth, the lightning raid, the enjoyment of treasure.

Posted by: Nobody at May 18, 2006 08:45 AM

Max,
Do actually bother reading this stuff before citing it? The directive you link to delegates to Negroponte only those powers assigned to the President by 15 U.S.C. §78m(b)(3)(a). And what is that power? Negroponte can now issue directives, reviewable by Congress and good for one year, that spell out areas of co-operation with the government for a specific person that acts as a get-out-of-jail-free card for them regarding bookkeeping and internal accounting. Do you want to reconsider your earlier citation of §78m(b)(3)(a), or do you really think there's a conspiracy most darke brewing in securities law?

I don't doubt that you think you see dots being connected, but I do not think the dots mean what you think they do. What dots do you think are being connected here?

Glad to make you laugh. One more shot gun blast

You know one of the most interesting characteristics of a shotgun? It's not a very precise weapon. As a substitute for a lack of precision and power, it's noisy, and it sprays a wide area with relatively minor points. Which somehow seems an appropriate analog for your posts thusfar in this thread.

And every day, the paperboy brings more:

Somehow I don't think our Founding Fathers would be too thrilled with Big Brother on anything less than a very short leash with Congress holding a very big stick. The reverse would have angered them, yes?

You know, one of the things that the Founding Fathers and I disagree on was the idea of "the most dangerous branch of government." Personally, I think the executive branch is the most dangerous branch, more dangerous than any Congress can or will be. However, as you'll recall from high schools civics, Max, the Framers did not agree; their experience under the colonial and later state legislatures had convinced them that the legislature was the most dangerous branch, which is precisely why they declined to implement a Westminster system, and precisely why they very carefully and specifically made the President the equal of Congress in terms of power and independence. We may debate their profound wisdom in such matters, but it is a matter of historical record that the Framers certainly did not envisage Congress playing whack-a-mole with the President. The branches were designed to be co-equal, which means that the President is the equal in authority to the entirety of the Congress. Indeed, far from being thrilled, I think the Framers would wearily shake their heads if they saw Congress holding the President on "anything less than a very short leash with Congress holding a very big stick," and wonder how the point had been missed.

Posted by: Simon at May 18, 2006 09:02 AM

Luzer, we're not the center, we're the centrists. There's a big difference. We don't promise to represent the middle. What we do try to achieve is what you see in this thread...a discussion on a contention issue with people who have various differing views, which can reach 20+ posts without devolving into a name-calling contest.

You might not think that's much, and at one time neither did I. But my blog travels have shown me that it's a fairly remarkable achievement, at least speaking comparatively. I might also add that the team members here change from issue to issue. I can't count on moral or intellectual support from any of our other posters if I talk out my rectum, and that's a good thing, which keeps us all semi-honest.

Matt, thanks for highlighting my best and most important points. I think they are far more important than the ones Pat and Simon are focusing on. Pat and Simon are of course correct to point out that if I don't like whatever constitutionally legal things may be going on, I am free to lobby for changes. I submit to both of them that such lobbying is in fact readily apparent in the excerpts you highlighted. Despite all of the things that both Simon and Pat have pointed out, however true they may be, I remain unconsoled.

Perhaps this is not technically a 4th amendment issue from the standpoint of the legal mind. From the standpoint of the moral mind, and the deep concern over our right to have a private life free from the glare of Uncle Sam's microscope light, it most assuredly is...

Posted by: bk at May 18, 2006 09:13 AM

Actually I was laughing at Luzer, Max. And the predictable Nobody appearance, in advance.

The other interesting thing about a shotgun is that you can ascertain how far someone was from the point of aim by the pattern spread. If they're up close, it's dense and solid and devastating, but must be as well-aimed as a rifle or pistol. The farther from point of aim they get, the greater the spread, the lower the pattern density, the less the effect. Past a certain distance, it's not even apparent what the point of aim was in the first place, and the effect is non-existent.

A couple of years ago I was with a neo hunter when a large covey of quail, maybe 25 birds, got up no more than twenty feet in front of us. He had a hi-capacity magazine, and racked off all six rounds in his 12 guage at the rise. With a smaller (20ga) double-barrel gun I took my time and fired twice, reloaded, and fired once more at a late riser. He hit nothin' but air. I dropped three birds with three shells. He was shooting at the covey, and missed every time. I was shooting at individual birds. You can write your own moral to that story.

From the standpoint of the moral mind, and the deep concern over our right to have a private life free from the glare of Uncle Sam's microscope light, it most assuredly is.

Yet, examined historically, it's barely a blip compared to the intense scrutiny of civilian communications in earlier wars. Even assuming the most recent allegations are true, which is a big assumption.

Posted by: Tully at May 18, 2006 11:00 AM

Yet, examined historically, the current potential for abuse is still vastly greater than it has ever been. Tracking, watching, counting, monitoring? All growing exponentially.

You guys seem to be willfully focusing on the particular story, almost as though I hadn't pretty clearly (not to mention repeatedly) used it as point of departure for what my expressed main concern is...that of protecting individuals from nearly relentless scrutiny of nearly all actions.

Presuming you're correct that in the past our government blithely went about subjecting communication to intense scrutiny(and I have no reason to doubt you), I'm again unconsoled by the point. But I am perfectly willing to cheerfully agree with the notion that the details of circumstances affect what sorts of searches, seizures, and general scrutiny are "reasonable."

Posted by: bk at May 18, 2006 01:38 PM

Um, tangent point here... but I was under the impression that statute ALWAYS supersceded the terms of a private contract? If you signed a contract giving some-one permission to murder you, they would still be charged with murder right?

Terms in contracts that violate law are rendered unenforceable. Am I incorrect about that?

Posted by: cengel at May 18, 2006 02:13 PM

As a general rule, cengel, that is correct.

Posted by: PatHMV at May 18, 2006 02:16 PM

Not much of tangent, IMO. The power relationships between sides in a "free" contractual agreement is quite colsely related to what laws may have been broken in the particular instance of the telcos in this story.

Of course there are exceptions, possibly even more exceptions than are desirable. For example, you can lose some free speech rights under a confidentiality agreement. Not sure if that counts as free speech technically, either.

But for some time now various forms of speech muzzles as parts of contractual agreements have stuck in my craw. More often than not they seem to function as ways to limit the accountability of powerful entities. But I admit that I haven't thought about it much, and I'd love to hear some thoughts on the merits and demerits of contractual confidentiality. It might be one of those "the most terrible solution except for all the alternatives" things.

Posted by: bk at May 18, 2006 02:55 PM

The one that really sticks in my craw, Brian is the shrink wraped license agreement. Where you don't even get to read the terms of the agreement before you pay for the product.

If I had my way, the only contracts that were legaly enforceable were those which were physicaly signed by both parties and then signed by a notary or 3rd party witness.

Posted by: cengel at May 18, 2006 03:18 PM

cengel, what I mean is that the statutes say (and this is VERY general) that you're not allowed to release certain records to the government unless they meet certain exemptions or exceptions. If the company's terms of service or subscriber agreement or both say that you agree to release those records, it doesn't matter if you failed to read the fine print. You agreed to it by using their services, just as you agree to the fine print in Microsoft software licenses when you fire up Windows.

Simon cited §2702 above as a potential area of violation for the accused telecoms. But there are numerous listed exceptions and exemptions to that statute. Indeed, they can lawfully divulge their records (not including communications content) to absolutely ANYONE who is not a governmental entity. The exceptions and exemptions seem to apply only to government. [§2702(c)5]. They can mail them to your Aunt Sadie, if they wish, while violating no criminal statute, though you might have a tort case against them for so doing.

Under §2703, there are other procedures in place under which the government can request records of telecoms, and a clause that holds the telecoms harmless if they supply records under those procedures.

Once again, as I have stated so repeatedly, we don't have the facts, so it's a MAJOR stretch to positively assert that any telecoms have committed any crimes or torts. All we actually have is a story by a single journalist who makes some allegations citing anonymous sources.

Posted by: Tully at May 18, 2006 03:33 PM

It's naive to think government surveillance started with Bush; I suspect NSA has been doing stuff for many years that might upset people if it were known. In general, I suspect it's pretty innocuous--I don't think the government is making an enemies list based on monitored phone calls. And I am sympathetic to the problems that this or any administration faces in balancing security and civil liberties. It's easy to say the government is going too far, but if there is another 9/11, it's the administration that is going to be bashed. With all the talk about monitoring of antiwar dissidents during Viet Nam, in fact, there were people advocating violence--and the government would have been remiss in ignoring that potential.

However, what bothers me, as it seems to bother Brian and Mathew, is general tenor of the administration, the idea that it need not adhere to any limits on presidential power. Pat is certainly correct that the founders were concerned about legislative power, but, as the Declaration of Independence suggests, they were also concerned about executive power. And, even if they weren't, that doesn't mean that 200 years later in a different context, that we should not be. I would be more comfortable if the administration would at least acknowledge that its activities that make people uncomfortable. I agree that a lot of the hysteria is unwarranted; we are hardly on the road to being a police state. But it's very easy for people in power to miss the forest for the trees, to start taking steps that, in themselves, might not be that dangerous, but that move us in ways that maybe we don't want to go. Frankly, the fact that Brian and Mathew are concerned about these issues in much the same way that I am makes me feel that my feelings are correct because they are certainly not given to hysterics.

Posted by: Marc at May 18, 2006 03:53 PM

Well, like I said I'm concerned, in large part because I generally care quite a bit about the erosion of privacy and civil liberty.

But Marc, when you speak about something as perceptually amorphous as "the general tenor of the administration," that's when I see the credence in Simon's complaint about what happens to what the people think when some partisans think they are supposed to be in the business of making the other side's molehills into mountains. For example, under contemporary circumstances, I don't find it especially unreasonable that the government is claiming the right (and indeed the rsponsibility) to listen to me on the phone if I'm talking to someone from, say, Quatar or Libya.

And frankly (as I think you may actually agree based on your statements above), when it come to getting reasonable people on the side of privacy and civil liberties, I think the hysterics and hyperbole in the last spat (over international calls) did more to harm the credibilty of those who sport a message of concern about civil liberties than it did to win people over...

Posted by: bk at May 18, 2006 04:28 PM

Those who would give up liberty to purchase temporary safety deserve neither. - Benjamin Franklin

Posted by: Dan Woychick at May 18, 2006 04:32 PM

Brian,

Absolutely agree with you. I have said from the first that the proper approach for ACLU-type liberals would have been to say, we recognize that times have changed and there are legitimate concerns with security and we want to help develop policies that balance need for security with civil liberties. Obviously, that's not what happened.

My concern was directed more toward the aggregate of issues re trials of detainees, some Patriot Act provisions, and presidential assumptions of war power authority than it did to the specific programs at issue here. I think this administration has done a good job of making it seem as if they think there are no legitimate arguments on the other side.

As for the Franklin quote, with all due respect, I don't think quoting that out of context really advances the discussion. It certainly makes the writer feel sanctimonious and erudite. The fact is, Franklin made his statement in a totally different context, when the spectre of mass murder really didn't exist. It makes no sense to say that it's either all or nothing, that you can't have a legitimate concern with security. After all, there are people out to kill us. Franklin was talking about a completely different set of circumstances. Are people that are afraid of being killed by terrorists (especially post-9/11) really not deserving of life or liberty? Taking a quote out of context is no different in my mind than the mindless bumper sticker philosophy that seems to prevail in this country. It doesn't reflect thought or contemplation--it's just a sound bite.

And, frankly, if I have to give up liberty to purchase temporary safety for my child, well, I will do it.

Posted by: Marc at May 18, 2006 04:50 PM

First, the Franklin quote, as often, omits a key word in what Franklin actually said, which was "essential" liberty.

Second, and I'm going to expand on this one day, we long, long ago gave up all sorts of liberties in order to secure temporary safeties... Social Security, OSHA, gun control laws, drivers licenses, income taxes... all these are laws which took away some of the liberties our forefathers took for granted, in order to provide some additional safety or security for some or all of society. So unless you're a radical libertarian aiming to return the U.S. government to the roles it occupied in the 19th century, you've got no business tossing that quote around so lightly.

Posted by: PatHMV at May 18, 2006 04:59 PM

I think this administration has done a good job of making it seem as if they think there are no legitimate arguments on the other side.

Marc, I know where you're coming from with this, and it is certainly a common perception. But I do wonder how true it is, really. From my standpoint, I believe I have often heard the President acknowledge that there is plenty of room for debate over all of these matters. The fact that he has continued on his course does not itself mean he doesn't acknowledge other legitimate arguments; it just means he has chosen to follow a different legitimate argument.

It also seems to me (and I am carefully using words like "seems" and "I believe" to acknowledge the possibility of perceptual bias) that many of the leading critics of the President have used very absolutist language in condeming the President's chosen policies as not just a bad idea but as unconstitutional and impeachable offenses.

It's like the argument that opposing the war does not make one unpatriotic. That is certainly so, but who said that it did? I know that neither the President, the Vice-President, nor any other major member of the administration ever accused anyone of unpatriotism (is that a word?) based solely on their disapproval of the war; to the contrary, I have heard the President say many times that criticism of the war is part of legitimate debate. So who exactly was questioning the Democrats' (and other war opponents') patriotism? Surely some right wingnuts did so. But left wingnuts do the same with different insults and slurs.

But as a general point, being clear not to accept at face value any of the anonymously sourced NSA rumors, I do agree with you and Brian that the debate over what should or should not be done is a separate debate over what is or is not legal or constitutional.

Posted by: PatHMV at May 18, 2006 05:10 PM

The question comes, how can you have a debate when one side does not want to debate and tries to surpress the legitimate areas where the debate can occur? By this, I mean every possible suit that is brought the Justice department tries to get tossed or the key evidence tossed under the guise of National Security?

The real problem with the debate is the fact that only a small group actually knows what is going on and won't tell. Now, this is not the first time. CNN had a nice retrospective this morning showing how many times that this issue has come up in the last thirty years. Sounds almost the same each time. The only difference is that this administration seems to be blanketed in more secrecy then any other administration in this time frame. You havea lot of Nixon era folks in this administration, so that is not a real surprise.

History shows a continual push of defing the lines of power. This is the first post-Nixon adminsitration to push it to the levels of that time. I am not sure that the people have enough trust in the executive branch for tht level to work at this time.

I have no problems if a group of people in Congress is briefed and the majority of the people briefed are ok with what is going on and can say they are in public. I think that level of communication needs some work.

Posted by: Jim M at May 18, 2006 05:59 PM

Simon,
A number of sites and journals including DefenseTech pointed to the Bush/Negroponte memo as a means by which money, operations, etc. can be organized by Negroponte (acting as President) into front operations. Such a bookkeeperless entity could link with other corporate entities. A secret chain can then be created from the classified and paperless to real corporations who escape their legal liabilities with a national security free pass. Although I am not a lawyer it appears no real record need be kept of transactions, assets, operations etc. Negroponte can create and direct his own front companies and simply file his assessment of operations and activities with Congress on a yearly basis. What evidence will there be for Congress to review? These "operators" will be able to arrest felons and gather warrantless evidence for their prosecution. . How will that be done? With such secret liberty Travolta would never have needed Swordfish. Maybe you can explain the lifting of liabilities in section 2 and why Negroponte need acquire the title "President" in this US Code? The beast we create should not be exempt from the balances that hold our polity together. The potential for abuse is staggering even putting Orwell’s nightmare aside.

As far as shotguns, they are great for some purposes. Let's say you have vampire bats you want to hit and its night and you can only hear flapping. If you use a shot gun you are more likely to hit something. Hunting during the day is not an option in this analogy.. These bats hide and hunt in the dark. If you take the bats of Global Strike, Echelon, Tempest, Total Awareness etc., if you listen to the Bats at the Justice Department and understand the position of Cheney and others compared to the intent of FISA, or notice the reports leaking out about rendering, wmd and prisons, read about the treatment of whistle blowers, detainees, witness political leaking and the manipulation of intelligence regarding Iraq and then notice the bills before Congress, a picture does emerge of a giant governmental beast without much oversight at the beck and call of executive power.

I consider both Presidential power and Congressional power part of a tripolarity that needs to remain in balance to operate "more perfectly". Since we know little about the actual intelligence machinery, trying a shotgun approach and adding deductive reasoning is about all the public has. There have been many false statements issued by government directors and administration officials. If I picked Negroponte's out it would be a shotgun blast without context. If I picked outsourcing Accenture as a way around Congressional regulations it would be another opinion. If you lay numerous intelligence reports out, one senses a picture which is different than the activities during other war periods.

The machine we have been making and the institutionalized criteria of "law, accountability and purpose" we are or are not imbuing in it has unprecedented possibility to infringe on our liberty and the enshrined checks and balances of our Constitutional process. The Courts, Congress and the President all have a say in what must be a balanced outcome, in what reasonable and probable cause mean. Most objections from Centrists are about questionable operational regulations to protect liberty, the cost and efficiency of the black boxes and their reasonable accountability. Probable Cause is not something to snip from the 4th Amendment. Phone records in themselves don’t broach the fourth. I did post a Supreme Court ruling that speaks of the limit of Presidential Power in deciding alone what reasonable is. What is is. Goss talks about Constitutional issues concerning the NSA. Together the links are loosely related facts or opinions, they are only strings leading into speculation. Together, they point to the first time any government is actually within reach of seamlessly acting outside of Judicial and Congressional review with unprecedented capabilities and being able to use warrantless evidence and data to arrest, detain and eliminate individuals both domestically and abroad.

Tully, you were shooting quail, not shadows of classified activity. Fortunately you didn't go hunting with Cheney which may have changed the lesson of your story……..

Posted by: maxtrue at May 18, 2006 06:40 PM

Q.E.D.

Posted by: Tully at May 18, 2006 06:44 PM

Too many things were going wrong for me to comment on this thread earlier when it was going at full steam.

My concern of the earlier privacy thread still holds, that I think Bush is being naive. I don't believe he's evil, just too trusting. Except it's not just Bush that's at risk, but the rest of us too, at risk of serious corruption.

I still think it not unlikely that information on Bushes, Frists, Clintons, etc., are being compiled using some of these tools.

Even if he chose his immediate subordinates well (probably), well, NSA is a big agency, with many people. It has many good people, and some bad ones.

Posted by: Jon Kay at May 18, 2006 10:32 PM

It would be nice if some of the regulars here put forth their concept of intelligence regulation and show us their balanced and centrist formulation of security v civil liberties. I think most here see the importance of advanced capabilities and a serious degree of required secrecy as well as full compliance with law and the spirit of the Constitution. I do not believe Bush is up to cronyism or political dirty tricks, but perhaps just another mistaken (anti-FISA led) expansion of unregulated governmental power given impetus by 9/11.

If we don't want to just "trust me", the centrist plank ought to promulgate a rational middle. This isn't executive v congressional nor Republican v Democrat. Huge spy nets were created by Congress and supported by Democrats over the last fifty years. Spector is right that this President has issue with more than 750 laws. No one should cave in here regarding the balance of power and the need for civilan review. There is also a need to address the spying capabilites of Congress and corporations to mine our privacy and sell our personal information. This 4th Amendment thread is another topic like Iraq that gets chewed up in binary digestion.

Given the nature of the topic, we can't expect much hard evidence from which to deduce what intelligence groups are up to. Its a bit like trying to bag a stealth fowl at night with a pistol. blow back on media

Posted by: maxtrue at May 19, 2006 04:03 PM

Given the nature of the topic, we can't expect much hard evidence from which to deduce what intelligence groups are up to. Its a bit like trying to bag a stealth fowl at night with a pistol.

And it's even harder to deduce what terrorist cells are up to before the planes crash, the embassies burn, and buildings collapse. Especially when law-breaking civil servants nursing political grudges against the current President disclose our intelligence-gathering methods and operations to them. For the moment, I'm more worried about the terrorists than I am about the politicians. Ask me in 4 or 5 years and maybe I'll be ready to have the open-source, full-disclosure NSA. But not yet, thank you. Posted by: PatHMV at May 19, 2006 04:32 PM