“You know, if I’d wanted Dick Cheney as president I would have just voted for him.” – Kevin Drum
The 4th Amendment’s requirement that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seize” is really a nuisance, the Obama administration argues.
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.
But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.
[…]
The use of the national security letters to obtain personal data on Americans has prompted concern. The Justice Department issued 192,500 national security letters from 2003 to 2006, according to a 2008 inspector general report, which did not indicate how many were demands for Internet records. A 2007 IG report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request. In two cases, the report found, agents used NSLs to request content information “not permitted by the [surveillance] statute.”
One issue with both the proposal and the current law is that the phrase “electronic communication transactional records” is not defined anywhere in statute. “Our biggest concern is that an expanded NSL power might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded,” said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued AT&T for assisting the Bush administration’s warrantless surveillance program.
I understand any administration’s or agency’s desire to accumulate more power — after all, they’re decent folk who just want what’s best for the country. But I don’t get how this passes judicial scrutiny.
While I’ve got a strong libertarian streak and am staunchly protective of our rights under the Constitution, I’m not an absolutist. Even our most fundamental liberties, such as freedom of speech and assembly, have to be balanced against the rights of others and the need for public safety.
During the Bush administration, I defended the idea that the government ought to be able to conduct data mining operations on mass communications with persons of interest overseas. My rationale was that this wasn’t a “search” in any meaningful sense because it was just computer algorithms sifting through impersonal information, that there would be no way to show probable cause ahead of time, the targets were overseas operatives, and that the purpose was intelligence gathering rather than prosecution. So, the harm to individual liberty was small and mostly theoretical while the potential harm to society from not gathering the information was substantial.
But this is something quite different: Specific searches of activities carried on by specific American citizens domestically. Further, it’s not like the records are going anywhere, making seeking out a magistrate and getting a proper warrant a minor burden. So there’s no reason that a warrant can’t be obtained and no additional risk to society by going through the process required by the Constitution outside the ones intended by the Framers.
Prioritizing law enforcement over civil liberties is hardly something unique to the Obama administration or Democrats. This is merely another step down a road we’ve been traveling for a while. But it’s time to walk this back.
