Big Brother Is Watching ... Us???

ABC News reports that "the government is tracking the phone numbers we call in an effort to root out confidential sources" -- this according to, well, ABC's confidential sources.

According to the post at ABC's Blotter blog, sources also say the CIA leak investigation has included the examination of "phone calls and contacts" not just from ABC, but also from the New York Times and -- you guessed it -- The Washington Post. The writers of the story specifically say this is not a case of phone tapping, but "a pattern of phone calls from a reporter ... could provide valuable clues for leak investigators" about the identity of the reporter's confidential source.

If true, this is doubleplusungood.

Debaters?

By Emily Messner |  May 15, 2006; 12:43 PM ET  | Category:  National Politics
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Comments

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Why should journalists be exempt from a practical investigative tool?

Posted by: Will | May 15, 2006 01:07 PM

Why should journalists have their privacy invaded?

Posted by: Geb | May 15, 2006 01:30 PM

Shall we refer to the laws governing the operation of foreign intelligence agencies within the borders of the US?

If the FBI were tracking these calls, with a court ordered warrant, as part of an investigation into the divulging of classified intelligence by US Government personnel, then so be it. But, I don't think that is what we are talking about here.

And, since it is HIGHLY questionable as to WHAT this administration is doing with our "highly effective tools" with regard to LEGALITY. It can be assumed that those who are leaking the information would be covered under the "whistle blower" laws.

See, if BushCo would have just worked to provide clarity and legal processes by which to carryout their programs, we wouldn't be in the mess. But, because they were afraid they wouldn't get the laws changed...and for good reason IMO...then they decided to go and do it anyway. Well, this kind of careless disregard for the laws of our nation comes with consequences. Those consequences are beginning to come to roost.

If US Government employees are breaking the law, regardless of the intent, and it is being done as a matter of POLICY...then America is BETTER served via transparency then secrecy.

Again, I will not give up my Liberty for the pipe dream of absolute safety...especially when such a pledge comes from an administration so rife with incompetence.

Posted by: AfghanVet | May 15, 2006 01:50 PM

Why would politicians in control of secret govt surveillance tools not be tempted to use it to swiftboat their opponents?

If you work for the CIA and your numbers keep showing up on a reporter's list they can pretty much tell what you are up to.

If you are a senator and you keep calling an escort service or the wife of your top aide you better not oppose them on the next confirmation hearing...

The possibility is endless.

Posted by: | May 15, 2006 02:12 PM

On the other hand tens of millions of illegal aliens live and work and stage massive demonstrations openly and w/o fear, ain't we a free society or not?

Posted by: | May 15, 2006 02:21 PM

Come to think of it, free is not the exact right word. Lawless maybe, from top to bottom?

Posted by: | May 15, 2006 02:24 PM

Why not just break into the office of Daniel Ellsberg to find out if he was the source of the Pentagon Papers leak ... oh yea, that's been done...

Some things are never learned from history, like what H.R. Haldeman said to President Nixon, Monday, 14 June 1971, at a taped meeting.

"But out of the gobbledygook, comes a very clear thing: you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the - the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong."

Posted by: Sully | May 15, 2006 02:25 PM

Geb-

For the same reason we would invade the privacy of a suspected murderer by checking his alibi vs. subpoened phone records. The presumption of Messer's article is that journalists should somehow be exempt from a normal investigative tool. As a non-journalist I'd like to know why she feels that way.

Posted by: Will | May 15, 2006 03:07 PM

"subpoened phone records"?

Where have you been? No need for subpoenas or court warrants when the phone companies turn over their whole databases of every phone call made in this country everyday. Heck they may even have real time access to the phone company computers.. They probably know who post which message when on this very blog.

Posted by: | May 15, 2006 03:33 PM

Really?...

Posted by: Emilio | May 15, 2006 03:50 PM

Can the actions of the government be possibly justified? Claro que si. What if those "confidential sources" are in fact agents of terrorist organizations that use the free American press to (mis|dis)inform the average American?

Posted by: Emilio | May 15, 2006 04:16 PM

Let me clarify:

I have a problem with warrantless wiretaps. If the government is spying on ABC reporters without justification (warrant or subpoena) then that is problematic.

The article does not make clear, however, what process (if any) is used to determine which phone calls are accessed by the Government. What it does make clear is that the content of the phone calls is not being investigated, just the calling pattern.

I would have a problem if the government did NOT use phone patterns to track down people who commit crimes. Ms. Messner implies that this process is very bad... if reporters are involved. I'm still waiting on why journalists who commit crimes should be exempt when non-journalists who commit crimes are not.

Posted by: Will | May 15, 2006 04:20 PM

Hey Emilio,
What if president Bush is a Mexican agent whose job it is to see thatour immigration laws are not enforced. Or maybe Bush is an agent of the Arabs (he was holding hands with a Saudi prince's hand you know) and is working to get more Arab influence in America (i.e., Dubai Ports World?). Maybe someone whould be overseeing what this president is doing! Oh, I forgot, the Congress is SUPPOSED to do this.

Are we being asked to trust the president because he is trying to protect us from every imagined threat but for congress to not oversee what Bush is doing as required under the constitution because Bush waves his hands saying it is all legal? Just where does it say the president has power over the congress? As I read the constitution its the other way around.

Posted by: Sully | May 15, 2006 04:25 PM


BREAKING NEWS!!!!!!!!!!

http://blogs.abcnews.com/theblotter/2006/05/federal_source_.html

Federal Source to ABC News: We Know Who You're Calling

May 15, 2006 10:33 AM

Brian Ross and Richard Esposito Report:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

One former official was asked to sign a document stating he was not a confidential source for New York Times reporter James Risen.

Our reports on the CIA's secret prisons in Romania and Poland were known to have upset CIA officials. The CIA asked for an FBI investigation of leaks of classified information following those reports.

People questioned by the FBI about leaks of intelligence information say the CIA was also disturbed by ABC News reports that revealed the use of CIA predator missiles inside Pakistan.

Under Bush Administration guidelines, it is not considered illegal for the government to keep track of numbers dialed by phone customers.

The official who warned ABC News said there was no indication our phones were being tapped so the content of the conversation could be recorded.

A pattern of phone calls from a reporter, however, could provide valuable clues for leak investigators.

Posted by: che | May 15, 2006 04:40 PM

With the pattern of decisions made by the Administration, whether it is domestic spying, signing statements that attempt to nullify the law signed, the unitary executive theory and all the rest of the usurping of extra-constitutional power by the Executive branch, there is only one remedy. Impeachment. It is the only remedy for chronic bad judgment.

Posted by: John | May 16, 2006 11:50 AM

I want reporters to evaluate the issue of national security and the greater good of this nation against the estimated need to tell every fool thing they know or think they know. It too often seems those inside the beltway (both the pols and the media) treat the war like some prank good for their own purposes. It's disgusting. Small wonder respect for congress and the media could hardly be lower.

Posted by: Colleen Hedrick | May 16, 2006 11:58 AM

G Gordon Liddy and his plumbers must be postively green with envy. America is at a crossroads, much more of this and Robert Mugabe, Putin et al will be welcoming you to their club...

Posted by: Mel Spence | May 16, 2006 12:04 PM

Colleen,

What would you say if it were your phone records? I'll tell you what if it were mine I'd be one ticked off chemist. Why do you think that the first article in the "Bill of Rights" spells out freedom of the press and the right to free speech? It was exactly for this reason. There were no national secrets given out. The news media when asked to usually co-operates with the government such as not releasing the the countries that partisipated in the illegal kidnapping of another countries citizens or guests and flying them to a prison camp to be waterboarded, drugged, beaten or whatever else this administration feels like doing against treaties we have signed, international laws, or even just plain human rights. The NY Times even withheld this information when they knew about it before the last presidential election, and if that information was released it might have changed the out come of that election. The terrorists are not stupid, they have some pretty intelligent people in their organization, they all ready know what the capibilities of our government are as far as something as simpleton as tracing phone calls and using computers to see if a pattern is developing. The ability to listen in on telephone conversations goes back to the party telephone line, and wireless calls into the early 70's. My father listened in on wireless calls with a police scanner when I was a teenager.

This administration is nothing but a bunch of cowardly crooks bent on destroying this nation from within all the while making sure their and their friends pockets are lined. If they were serious about protecting this country they wouldn't have appointed Porter to head the CIA, Negroponte to head homeland security, there were people who have been with these agencies for years, through both parties in power, and more than able to straighten out the problems within the agencies they worked for.

Posted by: Lab Rat AKA Jim Fox | May 16, 2006 01:13 PM

If the leak is one of classified information, or possibly so, and the monitoring agency has a warrant, they could legally tap the phone. If the numerical pattern is such that they suspect a particular phone number is the leaker, that would be grounds to get a warrant but not, willy nilly, to immediately put a wire on it. If I were the investigator, and I thought that this particular number was quite possibly the leaker's, I'd be crazy to go into court, or even to make an arrest, without going further to tap the phone first. Billyo

Posted by: Billyo | May 16, 2006 01:17 PM

The time has come for the truth about this venal and corrupt administration to go mainstream. This can be a little difficult, however, when the media is under the absolute control of corporate interests. Eventually even the internet will come under their control, if the big communications corporations can influence enough legislators to stack the deck in their favor. This administration is manipulating information and misinformation being fed to the public to a level comparable to the old USSR, China, and North Korea. These actions are truly insideous and counter to the interests of the American public at large. Bloggers have to keep the pressure on without letup, as they are one of the last open forems left to us. Those who lie and distort information should always be exposed for what and who they are; let the chips fall where they may.

Posted by: crazyoldman | May 16, 2006 01:18 PM

I want to join a class action lawsuit against AT&T, my landline and cell phone service provider.

anyone know who I should contact? is it the electronic frontier foundation?

thanks.

Posted by: lp, austin texas | May 16, 2006 01:41 PM

Surely not all of the 35+ comments taken down are profane or unsigned.

Posted by: AfghanVet | May 16, 2006 01:48 PM

Folks, believe this was all covered in a Supreme Court Decision over twenty years ago. The majority decision was written by that conservative hero Harry Blackmun and also supported by another mainstay conservative still there... John Paul Stevens. Their decision? That the government is not invading privacy to look at phone numbers. Read it and weep! (OK, I was joking, Blackmun and Stevens was/still is very liberal. Go figure.)

Posted by: Griff Dawg | May 16, 2006 01:49 PM

Next we'll be hearing about the "Thought Police". Get ready.

Posted by: Swordman | May 16, 2006 01:54 PM

The following website contains the Supreme Court decision that phone numbers belong to the phone company and no expectation of privacy is attached.

http://www.freerepublic.com/focus/f-news/1630900/posts

Posted by: Griff Dawg | May 16, 2006 01:57 PM


First we must admit that the USA has entered into a stage of Fascism that is unique. On one hand we profess freedom and the other the Bush regime is coping Nazi Germany.

Where are our leaders when we need them to speak out against what we have become as a nation.I am ashamed to be an American.

God help us

Posted by: Dr. Leo Casino | May 16, 2006 02:09 PM

It's obvious that the government is using the media as it's propaganda tool, with it's own sources who "leak" what they want America to believe about their nefarious undertakings.
It follows that when counter intelligence is "leaked" to media that puts government in a bad light, they then use the paranoid cry of "National Security" to justify what amounts to the suppression of truth. This is a battle that has no beginning or end, it's just at it's most extreme now with the Fascist State we have created to protect us from the "enemy". I met the enemy and he is us.

Posted by: trickdog | May 16, 2006 02:25 PM

censureship AfgahnVet

Posted by: Lab Rat | May 16, 2006 02:33 PM

You are all overreacting.

You do not have a constitutional right to privacy regarding the phone numbers you dial. The matter was brought before the Supreme Court in Smith v. MD, 442 U.S. 735. SCOTUS ruled 5-3 that no rational person can expect a "reasonable" right to privacy over the phone numbers they dial since they volunteer this information to phone companies every time they dial said phone numbers. You do not have a "reasonable" right to privacy over information you willfully hand over to third parties.

The text of the opinion is located here http://supreme.justia.com/us/442/735/case.html

Take a stab at it yourself. There is nothing "fascist" about checking phone records that are read *gasp* each and every day by total strangers at the phone company. Whenever you dial a phone number you put this hand this information over voluntarily.

Posted by: Will | May 16, 2006 02:40 PM

Why should we assume that they aren't doing more than just collecting phone numbers. It seems every week there is another lie exposed by this administration. When we first heard of this it was ONLY calls going out overseas. Suddenly the scope is much broader. What will we find out next. Without the Press doing investigative work and without an official inquiery we will never know to what extent this Big Brother is going to set up systems of spying that could easily be used for whatever other purposes they desire.

Posted by: eric | May 16, 2006 02:53 PM

Will-

Sorry, but my gut instincts tell me there's a big difference between the phone company looking at our numbers and the government doing the same thing. Perhaps because the phone company cannot arrest, detain, or other abridge our 4th amendment rights, which this administration does without shame.

Posted by: wiccan | May 16, 2006 02:57 PM

From the ABC article:

"Under Bush Administration guidelines, it is not considered illegal for the government to keep track of numbers dialed by phone customers."

Well, sure. It also wasn't considered "unconstitutional" to do so by the United States Supreme Court.

Posted by: Will | May 16, 2006 02:58 PM

Overreacting to the fact that the legal proceedures ( The FISA Court )have been left in the dust? The Court gives 72 hr, retro- active warrants, if Just Cause can be shown. Sine the Courts inception there have been only a handfull of denials, after thousands of requests.

This lates, illegal ( with a warrent) info gathering has happened after repeated assurances and denials that they were going around the law. "Trust us, we're only looking for bad guys". Right. The bad guys are stiffling the Fourth Estate and setting up their Corporatracy right under our approving noses.

Posted by: trickdog | May 16, 2006 03:00 PM

Seriously, what happen to all of the posts after 21? I KNOW nothing I wrote had profanity or personal attacks.

WTF? Over?

Posted by: AfghanVet | May 16, 2006 03:01 PM

Wiccan-

Wrong. Read the case.

Law enforcement asked the phone companies to give them the phone numbers of a suspected robber. The phone companies did so. The suspected robber (later convicted) argued that the evidence was gathered without a warrant (which is true) and thus the phone records --which later implicated him in the crime because such things are a valuable and practical investigative tool-- should not have been used in trial.

Judge disagreed. Appellate court disagree. Supreme Court disagreed. They determined that the man had no 4th amendment Constitutional rights to "privacy" over information he willfully handed to a third party. Namely, each and everytime you dial a phone number you transmit that information to the phone companies... willfully. If the government asks them for the records they have no constitutional imperative not to hand said records over. Further, no person whose records are viewed by the government has a constitutional claim (at least according to the SCOTUS) to privacy over those records.

There is absolutely no substantive difference regardless of what your "gut" tells you. If I give you my email address and the government asks for it... and you give it to them, then I cannot rationally claim privacy over that address, even if I ask you to keep the information private.

The fourth amendment does not protect information you willfully give to other individuals. Not from phone companies or the government.

Your real complaint is with the phone companies, who give your phone records away. You shouldn't expect the government not to pursue perhaps the single most effective tool in determining who leaked what to who, namely, the phone numbers dialed by people who reported on leaks. If these numbers match up with government employees "in the know" it would implicate them in the crime. And warrants for further information could be issued. And a crime could be solved.

This is perfectly reasonable and necessary in pursuing criminals. It is *GASP* *GASP* bad when it happens to journalists, apparently, but not when it happens to the rest of us.

Posted by: Will | May 16, 2006 03:05 PM

Will wrote:
"There is nothing "fascist" about checking phone records that are read *gasp* each and every day by total strangers at the phone company. Whenever you dial a phone number you put this hand this information over voluntarily."

Would it not be fascist to have Karl Rove use the NSA to have Sen. Kerry, Kennedy or Clinton's phone records searched? How about Howard Deans? You are right the numbers are not secret as any phone book will show, but using government agencies to spy on American citizens is quite different from say the phone company analyzing your phone records for marketing purposes. If I worked at the IRS I could not use your tax records to determine your income even though I would be authorized to look at tax returns as part of the job. Using federal resources to spy on Americans is illegal. It cannot be done without authorization or oversight (warrant) according to the 4th ammendment. And understand this, it does not have to cause any harm to the victim. It is a right you have as an American not to be unreasonably searched. people have fought and died for you having that right. This president is ignoring that right and thus not respecting the constitution he swore to protect.

So give up the idea that the government can do anything a person or company can do if it has the information. Give up the idea that the government can bypass constitutionally guaranteed rights when they become inconvenient. And give up the notion that domestic spying without warrants is legal. It is not. And consider that this administration has already broken the FISA law. That makes this a criminal administration that should not be trusted. Congress should be all over Bush with oversight, but I guess we'll just have to wait for the November elections to put true patriots in place of the Bush supplicants. Then watch the truth come out.

Posted by: Sully | May 16, 2006 03:20 PM

Sully-

Nothing in the article above suggests the kinds of malfeance you imply.

"Would it not be fascist to have Karl Rove use the NSA to have Sen. Kerry, Kennedy or Clinton's phone records searched? How about Howard Deans?"

What would it mean for Karl Rove to "use" the NSA to have their phone records searched besides Karl Rove asking a phone company, either personally or through the NSA, to give them their phone records? This "crime" (note: not a crime to ask) requires a "co-conspirator"; the phone company has to actually give it to them.

I don't know about you, but if my phone company gave my phone records to Karl Rove because he "came in asked for them" then I would switch phone services. However, since these records are not private there isn't anything illegal or unconstitutional about Karl Rove asking for them. As a voter I would consider this unprofessional and would say as much with my vote. But illegal? No. Unconstitutional? Not at all.

"You are right the numbers are not secret as any phone book will show, but using government agencies to spy on American citizens is quite different from say the phone company analyzing your phone records for marketing purposes."

This is a different matter. If a government employee, who is paid for by tax dollars, is utilizing their time to "spy" (scare word that doesn't describe the act of asking a phone company for records) on Americans for political gain, then I would consider this a waste of tax dollars. We do not elect people to spend their time (and my money) trying to access political opponents phone records. Again, I would remedy this malfeance with my vote.

From the article above there is no indication that this is what is happening. Quite reasonably the government, in prosecuting a crime, is requesting the phone records of people who might have spoken with the perpetrator. In fact, determining who this group of people --journalists-- could be the most effective means of determining who committed the crime. Do you disagree?

"Using federal resources to spy on Americans is illegal. It cannot be done without authorization or oversight (warrant) according to the 4th ammendment."

In this specific matter the Supreme Court of the United States determined that Americans do not have a 4th amendment right to privacy regarding their dialed numbers record. Meaning it CAN be done without authorization or oversight and it does NOT require a warrant to obtain said records.

"Give up the idea that the government can bypass constitutionally guaranteed rights when they become inconvenient. And give up the notion that domestic spying without warrants is legal."

What? We are not talking about domestic spying without warrants, we are talking about accessing merely the phone numbers dialed. READ Ms. Messner's linked article. READ the Supreme Court decision in Smith vs. MD that said definitively is not bypassing ANY constitutionally protected 4th amendment rights when it inquires for your phone records.

Posted by: Will | May 16, 2006 03:42 PM

Will,

I'm not sure the NSA Program to analyze traffic patterns and do link analysis is the same as looking up records for the purposes of a criminal investigation. Could you or I simply ask for the calling records of an individual? I don't think so.

Let's first try to understand the program and associated processes before we determine legality. In order for us to assume either status, we need to KNOW more and ASSUME less.

Our assumptions are that the INTENTION of the program is our protection. But, in the absence of legislation to allow for this type of data collection and analysis, we have NO provisions for prosecuting abuse. And that is just ONE of the problems of a program that works outside of KNOWN law and lacks significant judicial oversight.

IF someone were to use the analysis either for personal gain or for someone else's harm...exactly how would that person be prosecuted?

This program requires TWO different collection and analysis tracks to be effective.

First, all phone calls of relevance need to be collected and entered into a relational/object-relational database. Now, are we collecting EVERY phone call, or just targeted numbers and those they are connected with? Even if we are targeting numbers specifically, how many degrees of separation do we allow for until we determine it's irrelevant? How deep must one go before one can determine that there is no circling back by any member of the chain? Well, if one is to be thorough in their analysis...as deep as you can. Which means, ALL numbers.

So, you sweep all numbers and have the Super Computers at NSA and other places start to run their neural net algorithms against the data to establish patterns and store them in a data warehouse for later link analysis. One need little imagination to comprehend the amount of data that needs to be stored and how much of that is actually chaff. And, your algorithms have to be pretty good to recognize clear cut-outs that would be used by anyone with the slightest understanding of OPSEC. It's a needle in a haystack issue.

Now, all that data is officially part of government records, which means that it is vulnerable to a FOIA request. So, who else might be able to take a look at the records. IF your number is in the list, shouldn't you be able to see the results of the link analysis that affects you?

Now, combine this with the VERY QUESTIONABLE domestic LISTENING WITHOUT a warrant and you now have a "seed" with which you can now run link analysis against the data warehouse. So, you have a "suspect" number from which to start your search.

Now, you run your search and you get some hits that "fit" a defined pattern of behavior that "tweaks" your interest. What do you do with that information?

This brings us back to the fundamental question of how we treat individuals who are members of a non-nation-state aligned group who have NOT conducted any activity against the US and who have not been shown to be an official part of said organization in the eyes of the law. Does a "star chamber" of military bureaucrats determine who gets snatched and who doesn't? If it is a criminal investigation...it's screwed from the get-go because the original information that led you to investigate may not be consistent with the 4th Amendment. Oops.

So, EVEN if you somehow find a needle...a real needle, you are either making decisions that DIRECTLY affect the rights of possibly a citizen, but at least a human without JUDICIAL REVIEW -OR- you are using information that may be illegally obtained that subverts the legal case to begin with. Lastly, even if you find for the Government in their collection methods, you expose their methods to scrutiny by the defense attorneys for the target. And, if you simply snatch them off the street, again...who is making that decision and what oversight exists to ensure these activities are not abused?

Again, let's separate INTENT from ACTIVITY. We simply cannot forego our laws for expedience as it will indict our entire system; a system we try to force-feed to the rest of the world.

So, it's not a question of whether we should do this type of INTEL collection...but HOW we do it and HOW we ensure that the liberties of AMERICANS are protected? And, "trust me" doesn't work with BushCo et al.

Ask yourself...WHY, now that these programs have been exposed, BushCo simply does not get Congress to develop legislature to clarify the process and the Judicial system to clarify the legality? They are already doing it. We KNOW they are doing it...so why not just make it all clear and transparent? I'm not talking about sources and methods, I'm talking about oversight and judicial review.

Anyone? Bueller?

Posted by: AfghanVet | May 16, 2006 03:47 PM

Will ...

I would suggest that there are differences between Smith v. MD, 442 U.S. 735 and what is happening right now. The Court would probably use that decision as a precedent, but it would be walking into new ground. Primarily, in that case, the government asked to see the phone records of a "suspected robber". It was a specific request.

For about the last four years, the government has been requesting the records of "everyone's" phone calls. There is no specific crime, there is no specific criminal. It is a fishing expedition with little oversight regarding how the information will be used.

Posted by: Scott | May 16, 2006 03:52 PM

Will, I read the case and am wondering what the outcome would have been had the police put the pen monitor on the line of a police captain's girlfriend's number to see if she was seeing someone else romantically. I believe the case ended up as it did because there was a level of reasonable search. I agree the phone number's called are in the grey area of the 4th ammendment as is evidenced by the two dissenting justices.

But the real problem is not that the collection of this data is ok. Its ok to go dumpster diving, take photos of people in public or even stalk them as the pavaratzi are allowed to do. The real issue is that this is the government doing these things without any oversight. The potential for abuse exists just as the police could have done this to a girlfriend's phone and not a suspect's. So though the colection of the information is probably ok, what is done with that information is a true consideration. The issue does not stop with the simple collection of numbers.

In the case of ABC, I agree the case you site backs up the ability of law enforcement to use ren registers without warrants, however you need to understand that the supreme court considered this a state matter, not a federal one. And it might take a different view when the government agency is not the local police but the NSA, and the pen registry is made not of a single suspect, but all of ABC and in the case of the USA Today story, every American phone.

Posted by: Sully | May 16, 2006 04:04 PM

Will-

It is bad when it happens to us, it is bad when it happens to journalists. Look, all the leaks I've heard of were about actions by the US government that are at the least contrary to our laws, our morals, the treaties we've signed, and on, and on. And I'm sure we've heard about only the most egregious of them. Since the Congress has abdicated its oversight of the executive branch, how are we going to find out about secret prisons, torturing detainees, etc.? The media has done a piss-poor job of holding this administration acountable; I am grateful for the little bit they have done. And I am very grateful for those souls who did "leak".

Just because something is legal doesn't make it ethical in all cases.

Posted by: wicccan | May 16, 2006 04:06 PM

I was a clerk in the US ARMY in the 1970's. One of our duties was sending and collecting mail. We were told that even if ordered we could not divulge who was sending or receving letters. So we were not to tell our Commanding Officer if a soldier was writing his congressman.

To me telephone numbers are the same thing. While the transmission medium is electronic instead of by paper the concept is the same.

After reading the Supreme Court decision URl'd above I think they failed in the protection of individual rights which is a corner stone of our democracy

Just my opinion

Posted by: Hal | May 16, 2006 04:08 PM

AfghanVet-

"I'm not sure the NSA Program to analyze traffic patterns and do link analysis is the same as looking up records for the purposes of a criminal investigation. Could you or I simply ask for the calling records of an individual? I don't think so."

I'm not sure what this has to do with the NSA program. From the above all we can tell is that the Government has secured the phone records (dialed numbers) of certain journalists.

Why couldn't you ask for the phone records of an individual? I can call up my phone company right now and request the records of my girlfriend. The question is whether or not they will give it to me.

I would wager that phone companies are generally cooperative with the Government if the Government can prove good intentions. In Smith V. MD there were good intentions because the records did help in a crime. The detectives probably had to make their case to the phone companies who could likely have refused the records.

It's not a stretch that the Government could convince a phone company that phone records could help apprehend the perpetrators in leak-crimes. It seems reasonable enough to me that this would be an effective way of determining which government officials spoke with New York Times reporters.

I'm not addressing your other stuff because it is concerned with a separate matter. I am not showing support for NSA warantless wiretaps or phone mining. I am merely expressing that DA offices around the country could and probably do use phone records respectfully requested from phone companies to apprehend criminals. This process was subject to Judicial Review in the Supreme Court of the United States and passed the constitutionality smell-test.

Therefore I throw my support behind this very limited process. From the above article alone we know very little... but it at least suggests that this is what has happened to journalists at ABC, Washington Post, and the New York Times. Since these journalists do not have constitutionally protected rights to their phone records (dialed numbers) I would like to ask --as a non-journalist-- what the hell makes them so special?

Posted by: Will | May 16, 2006 04:15 PM

wiccan wrote:
"Just because something is legal doesn't make it ethical in all cases."

Careful, that is what Bush et. al. are thinking. I believe sometimes people believe they are doing right when they make bad decisions. Bush may believe he is right to break laws to "protect America" and use a version of the above excuse.

However, if lawbreaking is going on, it is the duty of everyone to report it to an authority. No job requires a person to not report lawbreaking. For example the leaking of wiretapping brought the wrongdoing to congress's attention.

Posted by: Sully | May 16, 2006 04:22 PM

Will,

Point taken. My question then becomes...are they leaking information that is classified -OR- are they whistle-blowing on illegal activity?

The government CAN classify ANY activity or information...but that does not determine legality.

Again, IF the FBI finds a leaker and decides to pursue criminal proceedings, this would expose the program about which the person leaked to scrutiny that probably is unwanted.

So, what is the purpose behind this hunt? If it's truly to find leakers of LEGAL, classified programs, then I dare say that BushCo has again gone off half-cocked. My Occam's Razor Meter tells me it is a smokescreen being implemented for the purposes of A)discrediting the source to deflect criticism, and B) to scare others from exposing other "questionable" programs.

So, yes, perhaps the FBI CAN look at the records in THIS case...but to what end?

Posted by: AfghanVet | May 16, 2006 04:34 PM

As I argued before in my earlier post that was dropped, the application in Smith vs. MD was a targetted application of phone record searches whereas the issue here is searching the phone records of an entire organization or group of organizations. To me there is a big difference and I have to believe that decision would have been different if the police were conducting a policy of examining an entire segment of the population's phone records on a regular basis to detect calls of a particular nature. The latter is a type of profiling and has the potential to be a cover for many abuses of power that aren't related to catching criminals. The lack of oversight (no warrants) only makes the practice more susceptible to abuse. If its a grey area in the law, then a law needs to be written to cover the practice. I believe that can be done in such a way that the search of a specific suspect's phone records could be allowed without a warrant or with one using a 72 hour grace period as in the FISA law, and at the same time restrict the fishing expeditions that seem to be taking place.

Posted by: DK | May 16, 2006 04:37 PM

Scott-

"The Court would probably use that decision as a precedent, but it would be walking into new ground. Primarily, in that case, the government asked to see the phone records of a "suspected robber". It was a specific request."

I'm not sold on this point. It's conceivable to me that the Government could need/request information from co conspirators or even unwitting participants. Utilizing a victim's phone records comes to mind. Or checking the dialed numbers of a murder suspect's sister to see if he has contacted her or her him.

The Supreme Court in Smith V. MD made a very general conclusion: there is absolutely no burden on the government not to use phone records (dialed numbers) of people in investigations. Using them does not necessitate proving intent or reasonability since people cannot possibly have a "reasonable" expectation of privacy regarding these records.

"For about the last four years, the government has been requesting the records of "everyone's" phone calls. There is no specific crime, there is no specific criminal. It is a fishing expedition with little oversight regarding how the information will be used."

That's a different matter as well. If the government feels they need EVERYONE's phone records (seems ridiculous to me) then they are constitutionally protected in asking. Phone companies are then free to give them up or restrict them.

What Smith V. MD established, and I think this is very necessary for practical police work, is that no person can claim "the government had no right to my personal records and therefore evidence gathered from them is unlawful to use against me." Because I have no reasonable expectation of privacy on those records because I willfully volunteer them to third parties each time I make a phone call.

Whether or not the government uses my phone records to prosecute my brother is irrelevant. Why would it matter whose particular non-constitutional rights were "violated" according to Smith V. MD? If the government used my phone records to track down my brother, what possible claim could I make against them? They violated my privacy rights that I have no reasonable constitutional claim to?

Posted by: Will | May 16, 2006 04:45 PM

Also, call tracking analysis in a criminal case cannot establish WHAT information was passed during the conversation -OR- whether the fact that a reporter and government employee converse is REASONABLE cause to then tap their phones in hopes of catching them in the act.

To me, the argument that would have to be made to a Federal Judge would be so tenuous as to be almost useless.

"Your honor, we would like to request a tap for the phones of A and B because they have been talking to each other. It is known that person A holds a clearance and person B has written about classified programs. We believe that this connection warrants futher investigation to include the tapping of all phone lines related to these individuals."

Say what? You cannot tell me that this LEAP of logic is not dangerous. And, technically, the only person comitting a "crime" would be the cleared government employee.

Again, this is NOT a practical way to run an investigation and is more bark then bite as far as I am concerned. If I was an intelligence employee and I wanted to leak data, you can be sure I would run counter-intel ops to ensure I was not caught. IF, said Intel employee is so dumb as to forget their training or experience...then they deserve to be caught.

Isn't it reasonable to assume that the man-power and time necessary to track a trained professional who MAY be a suspect is not worthwhile given other REAL threats to our nation? And, who determines WHICH leaks are worthy of investigating?

Frankly, my opinion is that if these programs being leaked were legal, the professionals in the Intel Community would not risk their careers and professional lives to overtly disregard their oaths to secrecy.

This is a witch hunt to stop embarassment to an incompetent and most likely criminal administration.

Posted by: AfghanVet | May 16, 2006 04:46 PM

End of debate:

"Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government."

http://www.thenation.com/blogs/thebeat?bid=1&pid=83880

See? Their actions are legal because they say they are legal. Nothing to worry about at all.

P.S. - What happened to this page for most of the afternoon? Not that I'm worried about THAT either.

Posted by: National Insecurity | May 16, 2006 04:53 PM

What Afghan Vet said!

(at 4:46 pm)

Posted by: wiccan | May 16, 2006 04:55 PM

What disturbs me is that both Chertoff and Bush have pretty blatantly misled the public in the recent past. They repeatedly said the NSA was only monitoring international calls. Now we discover that the NSA are indeed monitoring domestic calls on a massive scale. If they didn't utter a technical lie, they intentionally implied no program like this existed.

The Administration has consistently acted in bad faith when discussing domestic surveillance with the public. So why sould we assume the programs are run in good faith? The fact that we are kept mostly ignorant is too often used as a defense of the administration, since we don't know the details. But that's no indication the details are benign. More likely the opposite, no?

To me, the Consitutional issue isn't whether phone records are private, it's whether the President is accountable and subject to oversight. It is his relentless opposition to letting a judge decide what the law is that makes me presume there is something of questionable legality going on.

Posted by: Bruce M. Smith | May 16, 2006 05:17 PM

Sully-

"I believe the case ended up as it did because there was a level of reasonable search. I agree the phone number's called are in the grey area of the 4th ammendment as is evidenced by the two dissenting justices."

Your reading of the case was different from mine. Could you quote directly from it? I did not read anything in the opinion to conclude that the Justices reached their opinion because it was a "reasonable search". Rather it was ruled on the grounds that people cannot possibly have reasonable privacy expectations regarding phone records. In other words it was not ruled on the "reasonableness" of a search but rather on the "unreasonableness" of a certain type of privacy expectation.

"The real issue is that this is the government doing these things without any oversight."

If there isn't a constitutional protection being violated why does it need oversight? Does the government need oversight to ask someone a question? Does the government need a warrant to ask me if I committed a crime?

The "oversight" comes from the phone companies. If they deny the government those records, which it doesn't appear they did in either this case or the Smith V. MD case, then the government has to subpoena those records. This will require a judges stamp, which means judicial review. That's oversight.

But if the phone company willingly betrays its customer's trust then there isn't much the customer can do besides switch phone companies.

"So though the colection of the information is probably ok, what is done with that information is a true consideration. The issue does not stop with the simple collection of numbers."

We TOTALLY agree on this. And if tomorrow the Government announces that Journalist X called a gay bar I would view that as a totally unacceptable use of government resources and act accordingly (at the voting booth).

"And it might take a different view when the government agency is not the local police but the NSA, and the pen registry is made not of a single suspect, but all of ABC and in the case of the USA Today story, every American phone."

Sure, that's possible. I'm not going to speculate over a potential future case when I have a relevant actual one though. The NSA functions in many ways like a police detective. If the government feels they "need" the phone records of all people all the time, then ultimately it is up to the phone companies to say: Nope. And if the phone companies say Nope the government has to prove necessity to a judge. And frankly I think a judge would find that argument a little ridiculous.

Posted by: Will | May 16, 2006 05:29 PM

It's time for everyone who holds our constitution dear to learn the words to Neil Young's new album and take to the streets. Neil, can I help you organize?

Posted by: Terry Olson | May 16, 2006 05:32 PM

wicca-

"It is bad when it happens to us, it is bad when it happens to journalists."

No, it isn't. That's my point. Phone records aquired voluntarily from phone companies who feel a moral imperative to deal with a crime are perfectly acceptable, useful, practical, and necessary tools for apprehending criminals. Your privacy rights to phone records were subject to judicial review and... drum roll... 4th amendment does not apply.

Posted by: Will | May 16, 2006 05:33 PM

Will, every time you enter the medical system your history gets told to nurses and medical students and residents and doctors, and is reviewed by physical therapists and pharmacists and billing compliance clerks and medical record clerks and, ultimately, multiple levels of worker bees in your insurance company. Nowdays its entered into a computer as part of the government's push for a "paperless" medical record.

Yet, remarkably, you have an expectation of privacy of your medical data. How can that be, given the number of people who will see your medical data? If the clerk in medical records knows that 50 people read your chart, why shouldn't she talk about your VD test?

If you admit to using street drugs to your doctor, why then should that information not be available to a dragnet to end the War on Drugs. Why shouldn't the government just be able to crack into hospital databases to snoop for people who admit to smoking a little pot and use it to prosecute them? Because its an invasion of privacy.

If there is a targeted probe where you are prosecuting a lone person with AIDS who knowingly had unprotected sex with multiple partners for the sole purpose of infecting them, then that person's medical record of AIDS is "fair game" as a part of the total body of evidence against them (obtained with a warrant, of course). But a dragnet of medical records of AIDS patients to find the ones who say they have ever had sex without a condom so you an prosecute them is an entirely different affair.

Posted by: patriot1957 | May 16, 2006 05:37 PM

DK-

"As I argued before in my earlier post that was dropped, the application in Smith vs. MD was a targetted application of phone record searches whereas the issue here is searching the phone records of an entire organization or group of organizations."

Respectfully disagree. What I can tell from the article is that the phone records of journalists who reported on leaked information are being searched to determine who leaked the information. If leaking this information is a crime, then this search is targeted to find people who committed a crime. There's no evidence from the ABC article that the government is searching your phone records to find the leakers.

In any event the ruling in Smith V. MD makes no distinction between groups or organizations. NO person has a right to privacy of their phone records. The act of calling another person entails with it a reasonable expectation of that dialed number being viewed by other people.

Similarily if you tell me that you murdered someone and the government asks me what you told me and I tell them, you cannot later claim that you had a reasonable expectation of privacy in conversation with me. I am free to give that information to a prosecuter if they ask for it, and they are free to ask it. And I can refuse to cooperate.

The concern here is that phone companies are helping the government too much. There are practical ways of expressing your concern for this behavior; switch phone services.

"The lack of oversight (no warrants) only makes the practice more susceptible to abuse."

I'm all for oversight, when necessary. But you guys are trying to protect an unprotected "right". Does the Government need a warrant to ask your friend about your character? Does the Government need a warrant to ask you a question? Should the Government need a warrant to ask you to cooperate with an investigation?

This is about voluntary participation with Government agencies in apprehending criminals. Some voluntary transactions are contrary to the constitution... for instance if the government hacks into your computer for this information. But if the government politely asks a third party that you have willfully given the information to for the records, and the third party gives them up, then you are not protected by the 4th amendment. That's your bad on trusting the wrong third party, amigo.

I'm thinking about the effects more "oversight" would have on DA offices the country over who are prosecuting crimes daily. We know that the Bush Admin. overreaches... but we shouldn't punish all law enforcement for that. There are real victims of crimes that could not otherwise be solved without the voluntary participation between people, corporations, organizations, and investigators. These people require some reasonable level of cooperation that is subject to review by the individuals being asked. To require a warrant or some other oversight just for the government to "ask" is utterly ludicrous.

Posted by: Will | May 16, 2006 05:50 PM

National Insecurity-

The article is vague about whether or not the FBI has used NSLs to access the phone records. It reports that the FBI admits to using NSLs... but not necessarily for these phone records.

However I appreciate your point. I do not personally think phone companies should be forced to give up phone records without judge approval (or some independent review). I maintain that they are free to do so voluntarily.

Some aspects of the Patriot Act concern me. This sounds like one of them.

Posted by: Will | May 16, 2006 06:14 PM

Patriot-

re difference between phone and medical records:

When a doctor asks you a personal question, for instance "have you smoked pot this week", then your answer will influence how they treat you. Any incentive you have to lie to them is thus a threat to your personal safety.

The nature of medicine is such that effective treatment is dependent on accurate information. If doctors are not receiving accurate information then people will die.

Society has decided, quite reasonably, that this relationship depends on honest information passed from patients to doctors. Incentives to lie to doctors, to defend against future prosecution, should be avoided at all costs for the public health/safety. Since both laws and medicine exist for the public welbeing, something has to give. As a society we have decided that Medical honesty trumps criminal investigations.

There is a special legal contract between the Medical community and the Patient community whereas we have an absolutely vital (to public health) expectation of privacy regarding our medical records.

No such imperative exists for phone records. That is the distinction you are ignoring.

Posted by: Will | May 16, 2006 06:19 PM

There are a couple of things here that haven't really been addressed:

1. Traditionally, a judge faced with issuing a wiretap warrant based on pen register information (i.e. phone numbers dialed) would refuse if the target isn't a part of a criminal investigation for which those pen registers were obtained. This puts the Judicial system as the arbiter between a focused investigation and a "fishing expedition".

2. The legality of a phone records-based "fishing expedition" has yet to be tested by the Supreme Court. Smith vs. MD indicates that it's legal for law enforcement officers to use pen register information in a criminal investigation of a known subject.

3. It's not clear from the information we know now that the government is acting lawfully with the information they've collected, whether the collection is legal or not.

4. This government's domestic spying operation does not stop with the collection of a pen register database. It's well-reported that NSA maintains equipment in AT&T and Verizon switching centers across the country that maintain both voice and Internet traffic. NSA's foreign surveillence program, as far back as the early 90's, has had the capability to acquire, store and analyze (manned and unmanned) all manner of foreign communications - voice, data and otherwise. There's so far no indication that NSA has stopped at "acquire" (the 'legal' part) in their domestic spying operation. Furthermore, there's no reason to use an agency like NSA to simply acquire this information, given their immense capabilities for storage and analysis - there's no reason at all to use NSA unless you intended to sift through call records or any other type of communication in a "fishing expedition" style operation.

5. The existence of, and roughly the capabilities of, NSA are widely distributed information known to people across the world, including Al Queda and anyone else you consider an enemy. Any criminal or terrorist outfit worth fighting would have to have a good understanding of communications security, and at least a passing familiarity with the capabilities of the opposition. It's well reported that bin Laden hasn't used his sat phone since the Clinton administration, and that Al Qaeda cells use various methods of encrypted Internet communication.

6. Al Qaeda has learned nothing from this leak of classified information. The American people, however, have learned much - they've learned that they are all de facto suspects in a criminal investigation.

Pen register analysis is a 70's-90's era investigation technique. Much has changed since those days, notably the Internet, but also digital voice communications networks: for example, a terrorist operating within the United States could easily walk around with a large bag full of cell phone SIM cards from pre-paid phones. He would thereby evade everything from old-school pen register analysis to sophisticated direction-finding techniques. An investigator could potentially devise a legal method of discovering all of the phone numbers he'd need (subpoena the prepaid cell company, for example). But to glean any useful information about a conversation that happens between, say, TWO people communicating with floating phone numbers, you'd have to wiretap. Otherwise you'd have nothing but a set of phone calls designed to deliberately disrupt pen register analysis.

So pen registers aren't enough - to be effective, NSA would have to ALSO record every call placed within the United States and store them until these other investigative techniques indicated a floating set of SIM cards, for example.

They say they're not doing that. So you'd have to conclude then that a. NSA can't be using these techniques effectively against Al Qaeda inside the United States, or b. NSA is using these and other undisclosed techniques (whose legality is thusfar unknown), or worse, c. NSA isn't targeting Al Qaeda at all, they're targeting you.

Posted by: Scott | May 16, 2006 06:41 PM

After reading several blogs, I can't believe that no one has mentioned the simple premise of the American system of law,ie. innocent before proven guilty.

When the NSA collects the telephone records of the public, they are presuming we are guilty! Guilty of what? Guilty of having a coversation with a person?
We the public must insist that those that work for us do their job! That they do the necessary initial investigation to warrant tapping any person's telephone calls.What is happening is we are once again tollerating medeocrity and incometance!
Hellooooooooo! Pre 9/11 intel, Katrina etc.....

How about our right of privacy and the persuit of happiness?

Some may say, why not get a record of my telephone calls? I have nothing to hide? But, I ask you, how do you feel if you were in a restaurant,having a conversation with a friend and a perfect stranger, with no relationship to you or your friend, moves their chair over to listen in on your conversation? Do you then invite them to sit with you? As I see it; it's the same as listening in on your telephone coversation, or collecting information on who you meet with or collecting information on whomever you have a relationship.We have a right to persue our happiness, without any presumption that we are endangering the publics welfare. Again, presumption of innocense.

Posted by: Fedup | May 16, 2006 07:32 PM

After reading several blogs, I can't believe that no one has mentioned the simple premise of the American system of law,ie. innocent before proven guilty.

When the NSA collects the telephone records of the public, they are presuming we are guilty! Guilty of what? Guilty of having a coversation with a person?
We the public must insist that those that work for us do their job! That they do the necessary initial investigation to warrant tapping any person's telephone calls.What is happening is we are once again tollerating medeocrity and incometance!
Hellooooooooo! Pre 9/11 intel, Katrina etc.....

How about our right of privacy and the persuit of happiness?

Some may say, why not get a record of my telephone calls? I have nothing to hide? But, I ask you, how do you feel if you were in a restaurant,having a conversation with a friend and a perfect stranger, with no relationship to you or your friend, moves their chair over to listen in on your conversation? Do you then invite them to sit with you? As I see it; it's the same as listening in on your telephone coversation, or collecting information on who you meet with or collecting information on whomever you have a relationship.We have a right to persue our happiness, without any presumption that we are endangering the publics welfare. Again, presumption of innocense.

Posted by: Fedup | May 16, 2006 07:33 PM

My non-offensive comment was taken down. If this was deliberately done and not something technical and unintentional, please let me know. No problem - my identity doesn't hinge on getting recognition on this blog. No pushback from me. I'll simply leave if WP desires.

Posted by: On the plantation | May 16, 2006 07:39 PM


BIG BROTHER sure is watching ... this BLOG.

The GAP! The GAP!

Posted by: che | May 15, 2006 04:40 PM

..........

Posted by: John | May 16, 2006 11:50 AM


Ah what triplyplusungood irony!

Posted by: Duh! | May 16, 2006 08:01 PM

Will, you wrote:

"Respectfully disagree. What I can tell from the article is that the phone records of journalists who reported on leaked information are being searched to determine who leaked the information. If leaking this information is a crime, then this search is targeted to find people who committed a crime. There's no evidence from the ABC article that the government is searching your phone records to find the leakers."

I get a different concept from what I've read about it. I read it as the government is actively tracking all phone calls originating from ABC, The NY Times, and WP. The government has a much greater chance of getting that data from the phone companies than individuals or other companies. I suppose they are exploiting the law in an investigative process as you say, and I can't blame the investigators for doing all they can to solve the case. I'm concerned about the possible abuses. That concern, I believe is not unfounded in the climate we find ourselves in and with the administration that is in power. That is why I suggested that perhaps a law could be written that would better define the grey area. I believe the law could be written to allow targetted searches of individual or small groups of phone numbers based on legitimate suspision, but require third party review and a warrantting process for mass phone call dragnetting.

You see, I'm viewing it as more than just asking. I'm viewing it as monitoring and using those records to ostensibly catch the crooks, but possibly find out other things as well that would give those in power an edge over competition (e.g. sabatoging elections, blackmailing, suppressing freedom of the press) Call me paranoid, but the potential for abuse is more than I'm comfortable with.

Posted by: DK | May 16, 2006 08:04 PM

Buying records from the phone companies is simply the easiest way for the feds to create the ability to map social networks. They've probably already figured out a better and more clandestine way to trace our electronic communications. Why not just assume that's the case, so we can focus on the ethics and legality of the use to which the gov't puts this info!

Posted by: Phil S. | May 16, 2006 08:31 PM

... for example, Congress could take its head out of its, er, docket and actually start an active oversight initiative, which is its purview.

Posted by: Phil S. | May 16, 2006 08:36 PM

It is one thing to say....hm, I suspect person A is Bob Novak's leaker. therefore I will collect the phone records as evidence to prosecute person A.

It is another thing entirely to say - lets go fishing on the phones of reporters to see if we can find any leaks.

The first is what Smith vs MD was about. The second is what the Constitution is about.

Posted by: patriot 1957 | May 16, 2006 08:45 PM

DK-

The article goes only this far with specifics: "the government is tracking the phone numbers we (Brian Ross and Richard Esposito)" and further "other sources" assure us that "that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post." So if the article is accurate than Brian Ross and Richard Esposito, two individuals, have had their calls checked by the government and possibly some group of Washington Post and Times journalists have as well.

This is fairly targeted. Ross and Esposito's dialed numbers could go a long way in determining who leaked what. So could the select journalists from the WaPo or Times. But Ms. Messner? You? What information would either of you possibly have since neither of you have broken a huge story on a classified government program.

Your well founded concern is that the government is targeting the dialing records of large groups of likely uninvolved individuals. Nothing in the article makes any mention of that.

Even if the article did make mention of it, there's nothing unconstitutional about collecting your dialed numbers record since, according to SCOTUS, no particular individual could possibly have a reasonable expectation of privacy regarding this dialed numbers record.

So the remaining concern is that the government will use information it finds from your dialed records to one of two things: A) pursue conviction for a crime unrelated to their search or B) use this information against you politically or personally.

Let's discuss both.

A) If you are committing a crime that is so transparent that simply examining your dialed numbers would result in enough evidence for an impartial judge to issue further warrants against you then I am all for the government pursuing you. Just as I would support a phone company that volunteered records of a person who constantly dialed a Pedofile-Hotline. Or if a MySpace administrator contacted the police if they witnessed someone sexually pursuing a minor.

In any event since you don't actually have a reasonable expectation of privacy regarding your dialed numbers, any crime you commit merely from dialing a number (and this is EXTREMELY narrow) is essentially public record. If you volunteer information you cannot claim it is private. If I threaten to kill my neighbor, I cannot ask a judge to gag order my neighbor because I "reasonably expected" him to keep his mouth shut.

B) is a concern, but it hasn't actually happened yet. Until such time that people start claiming the government has used personal information against them, I'm going to assume that such hasn't happened. Further the government cannot do anything illegal with the information, like blackmail you, because you could take them to court. And the government cannot libel you either, so they can't exactly leak that you called a convicted pothead and claim you were therefore a pothead. They could leak that you called your friend who is a convicted pothead but, guess what, everyone at the phone company already knows that. You cannot reasonably expect that information to remain private anyways.

So perhaps the government would use it in ways that make me uncomfortable... oh by the way Political Opponent B called up a gay hotline. Frankly, if my government was using tax payer resources to track down the phone calls of political opponents and report that they called gay hotlines, I would consider this a waste of my tax dollars and vote accordingly.

But I can at least imagine a person in the United States who would feel interested in the sexual preference of a political person, and they might even feel tax dollars are valuably spent outing homosexuals. I think such people would be despicable, but that's their right. And they are welcome to vote just as I am. And since the fact that you dialed a homosexual hotline cannot possibly carry a reasonable expectation of privacy with it, the government wouldn't have actually done anything "criminal" by exposing you.

I have no problem with this. I actually hope the government tries to out political opponents so I can witness the transparent stupidity of the Bush Admin in action and respond accordingly (in the ballot box).

Posted by: Will | May 16, 2006 11:27 PM

patriot-

"It is another thing entirely to say - lets go fishing on the phones of reporters to see if we can find any leaks."

Nothing in the article suggests non-targeted fishing. I'm not saying that means such fishing does not occur, I'm just saying you cannot claim that merely from the article.

Smith V. MD reaches an extremely general conclusion. A defendant claimed that evidence collected from a dialed numbers list could not be used against them in court because it violated their 4th amendment rights to privacy. SCOTUS said this is impossible because NO person could EVER claim such a thing because NO person EVER has a "reasonable" claim to privacy in dialed numbers records. It is unreasonable because you cannot expect information you volunteer to third parties to remain private. This is fairly straight forward.

"The first is what Smith vs MD was about. The second is what the Constitution is about."

No, Smith vs. MD was ABOUT the Constitution. Specifically, can information volunteered to third parties qualify for "reasonable" status under the 4th amendment in the Constitution. Well, as a matter of fact, no it cannot. Anyone claiming that "Government reading what numbers I dialed is unconsitutional" is lieing. The matter was addressed by the Supreme Court (who is the ultimate arbitrator of what is/is not constitutional) and they unequivocally said that nothing in the 4th amendment protected you from such a search.

I will acknowledge that the Supreme Court case only addressed what (I think) was a voluntary participation between investigators and a phone company. I don't necessarily think the NSA should be able to force those records from phone companies without warrants. I am merely acknowledging --consistent with Smith v. MD-- that IF a phone company gives out your phone list then you do not have a constitutional claim against either the company or the government.

Posted by: Will | May 16, 2006 11:40 PM

I mean I especially liked the one where

"cloven hoofs pattered across the whitehouse floor as they kissed his backwardness...

lips wet with greed...."


and profane, yes that would describe your bushiness's actions...

is that what is being censored?

eh ?

tell me

.

Posted by: what happened to all of my posts? | May 16, 2006 11:53 PM

I personally think... |

that geo...witless bush...

is a criminal,

and needs to be supported in that mannre...

I also believe that he should be impounded and have his lands sold, as well as those of his fathers and those who have worked with him to perpatrate this fraud upon the people of the United States of America


I think, he should, at the very least have to suffer that fate which he has tried to foist upon us...


stamp his resume with the word "loser"

take his properties, his reputation, give his job to foreigners and let him compete as he would have you compete


and that his lands be sold to foreigners as he has sold your land and used your children to _his_ benefit...


after he has wiped his dic on your reputation...verily so...


that _you_ are now associated with _his_ reputation...and


are rendered unclean...

heh!


and let hte unclean be washed in the blood of a lbam

.


let me hear an AMEN!!!!!!!!!!


Posted by: or was it this? huh emily or was it your editorial boss dh that had his attitude questioned? | May 17, 2006 12:10 AM

"Further the government cannot do anything illegal with the information, like blackmail you, because you could take them to court. And the government cannot libel you either, so they can't exactly leak that you called a convicted pothead and claim you were therefore a pothead. "

This is the most naive thing I have ever heard. Do you not grasp this administration's blatant attempts to control the judiciary. Did you not hear a Republican leader suggest that certain judges deserved death for their verdicts? Did you not hear the attempts to rile the masses over "liberal" courts that don't trust Bill Frist's diagnosis from a distance? Have you paid no attention to the "nuclear strategy' to get their candidates on the bench? Did you not notice that Roberts was one of Reagan's architects of the unitary executive push?

Illegal? Who gets to define illegal? Is redering prisoners to secret gulags legal? Was Abu Ghraib legal? They can't leak that you called a pothead? For God's sake they leaked the identity of a covert CIA agent. They can do anything they damn well please and with control of the Congress, incipient control of the Court and a population kept in a perpetual state of fear, who exactly will stop them?

It is your interpretation that SMith vs MD is a blind approval for anyone to have free access to phone records for any reason. It is mine that the decision applies to a single case in which the phone record was only a part of a body of existing evidence, not a license to decide to trace the communications of all accountants in the major firms to see if they can dig up one who was taking too many deductions on client taxes.

Posted by: patriot 1957 | May 17, 2006 12:36 AM

I find it bitterly amusing that Roe v. Wade was "improperly" decided, but a decision regarding the right to collect telephone data without warrant must be recognized as precedent since it supports conservative views on the rights of citizens. And I'm glad to see that Mr Ford's absence has been ably filled by dogged and all-knowing Will. Keeps the home fires burning.

In a gaudy show demonstrating that no form of government can anticipate renegade power grabs and abuses. We fail to understand the present political situation within our own country when we view the President as an individual and not the ostensible mouthpiece of a concerted desire to marry the power of the United States government with the economic force of a corporate, free-market-capitalism (mostly American) interest. To this point, with the bewildered assent of the American electorate, they have succeeded.

Voices like those of Will and C. Ford try to paint abuse of power with rational argument, and to some extent these voices are effective. Effective enough to convince the unthinking that it is better to cede our power of the vote to the apparently more authoritative power of Washington officialdom. The willingness of Republican legislators to go along with the agenda of the Bush administration (in what important votes has any Republican legislator voted conscience, constituency difference, or any other contrary note?) has given a "rubber-stamp" quality to the past 5+ years of government. Despite the fact that Democrats have been painted with the "liberal" brush by their opponents, they have shown courage in defining the interests of their constituents or of conscience with commendable distinction.

We are going to have the government and governance we deserve. If we "trust" a secretive and shady administration and abdicate our own ability to reason, we invite further abuse (and these relatively minor incursions into what we have with common understanding believed to have been our rights may some day be viewed as but the beginning). There is a vicious, reactive imperative among the "deciders" of conservative policy and polity that seeks to tear down every vestige of the social and economic regulations since the New Deal of the 1930s. These programs and viewpoints are seen as anathema and the determined disintegration of federal, state, and municipal services for citizens (along with privatization and outsourcing of long-held government function - excepting, importantly, defense) is a key element of the long-term strategy.

Will likes it, obviously. AfghanVet, Sully, Patriot, and others see the flaws and the erosion of individual freedoms. The Constitution, invoked in several comments, implies that "life, liberty, and the pursuit of happiness" are among inalienable rights. All actions that constrain or harm these "true" rights must be examined and weighed with the most solemn consideration. For the proposal to be spoken by the President and to be ayed and seconded instantly by legislators is a clear sign that due deliberation in no longer a part of Congressional debate. Elections are coming in November. We have the power in our hands to change the course of events and send the message that patriotic Americans are not giving up their dearly won and preciouis rights and freedoms.

Posted by: Jazzman | May 17, 2006 12:41 AM

patriot-

We certainly would agree that an impartial judiciary is absolutely necessary.

I will not just assume that the judiciary is broken because you cite a few choice cases of Republican leaders or activists trying to choose a certain type of judge.

"They can't leak that you called a pothead?"

The point is, if they leaked it merely from the fact that I dialed a potheads number there wouldn't be anything illegal about it. It wouldn't even be a "leak". I do not have a reasonable expectation of privacy to the numbers I dial.

"It is your interpretation that SMith vs MD is a blind approval for anyone to have free access to phone records for any reason. It is mine that the decision applies to a single case in which the phone record was only a part of a body of existing evidence, not a license to decide to trace the communications of all accountants in the major firms to see if they can dig up one who was taking too many deductions on client taxes."

If you think my reading of Smith V. MD is wrong then quote the case. The opinion states quite clearly that the numbers you dial in phone conversations is not subject to 4th amendment protection. The conclusion does NOT state: "And this only applies to a man named Smith in his case vs. the state of Maryland." It makes a general constitutional observation about what constitutes a "reasonable" expectation of privacy and what does not. In the decision, expecting that a phone company must gag itself with your dialed numbers is "unreasonable".

If you want to dispute my understanding of Smith Vs. MD do it with something in the case. But don't assume some unmentioned intention on the part of the justices.

"Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information"

Even if a petitioner can prove that they have an expectation of privacy, this expecation is unreasonable. You do not have 4th amendment privacy protections over information you volunteer to third parties. Due to the nature of phone services, every phone call you make enables them (and sometimes requires them) to keep track of that number. Therefore no reasonable person can expect this to remain private. Ergo, there is no reasonable expectation of privacy regarding the numbers you dial.

That's the supreme court talking. This message board does not determine what qualifies as constitutional. The Supreme Court does, however.

Posted by: Will | May 17, 2006 01:15 AM

Jazzman-

Don't I eat babies as well? Puppies? Why don't you stick to things I've actually ascribed to. Save all the preachy self-important rhetoric for someone who cares.

I don't know the substantive difference between you assuming my views on Roe V. Wade or pretending to know whether or not I have some sinister pro-Bush agenda when all I'm doing is defending a Supreme Court case that predates his Presidency by 21 years, and Chris Ford assuming that you are a gay pinko communist Jewish ACLU lawyer because you take the liberal position on Unrelated Issue X. In the end you're both just making things up about people who disagree with you to discredit or abuse them. It's still all fluff.

Dispute my argument, not my perceived motives.

Posted by: Will | May 17, 2006 01:36 AM

Dispute my argument, not my perceived motives.

Posted by: Will | May 17, 2006 01:36 AM


Ah professor Will. Class is out for the Summer but you want to keep on teaching.

Aristotle claims you can't separate the two, not in the world we live in. Plato on the other hand thinks the world we live in is inferior. You a platonist yes?

But why the Gap? Explain the Gap Miss E.

Posted by: Duh! | May 17, 2006 07:40 AM

Question for professor Will:


If the argument is all there is in front of the Court, why the fight to the death on every SC nomination and confirmation? Why it is practically predictable always that four of the judges will side with this administration and another four against?

Posted by: The Sophist | May 17, 2006 07:53 AM

So let me get this straight. Will, is it your contention that you don't care about the political, social, and philosophical implications of a government action, only about the determination and interpretation of case law? What, exactly, is your contention. That if a matter can be viewed as "within the terms of written law" then it must be all right with respect to the needs and intentions of a constitutionally governed nation? We all know that matters in Supreme Court are subject to review given new understandings of individual freedom, needs of society, human behavior and so on. Now I did not address all of my previous remarks to Will. I am concerned that narrow views of "security", fed by fears originating in the events of Sept. 11, are letting many Americans forget what the original purposes were in founding this republic. Further, the country is headed by an administration that choses to stretch or bend every conceivable interpretation of law to exercise control over media, Congress, and the public at large. What you personally believe is your right, which most of us here would defend by all means. But there are many strong reasons to resist perversion of the letter and spirit of the laws written into our Constitution. In most cases, the motives are more important than the arguments.

Posted by: Jazzman | May 17, 2006 08:41 AM

No debate here. I most whole-heartedly & completly agree with Emily's use of doubleplusungood here. (Great phrase, by the way)

Any government that thinks that it needs to discover a reporter's confidential sources, well, would seem to have something to hide.

Any administration that feels a need to use such tactics has neither respect for the constitution or the people of this country, but we all knew that about this administration anyway, didn't we?

Posted by: Michael | May 17, 2006 09:34 AM

Sophist-

In case you didn't notice, I'm referring to a Supreme Court case from 1979 which predates this administration by over 20 years. And the ruling had nothing to do with "an administration" at the time; it had to do with allowing police a valuable tool in pursuing criminals.

I have not taken the argument further then one Supreme Court case. This has not prevented you all from extending my position into the absurd.

Posted by: Will | May 17, 2006 10:05 AM

Relax folks. Trust me on this. If and when a democrat moves into the Oval Office, you are going to see more cases of philosophical whiplash and preening hypocrisy than you can stomach as the conservatives on this blog who support Bush on this issue, and the liberals who feign outrage, turn over 180 degrees in a shameless display of ideological musical chairs.

I have seen it all play out before. It wasn't all that long ago that dittoheads were calling into that fat, sweaty Rush Limbaugh sniveling about the intrusiveness of Bill Clinton's "jackbooted storm troopers" at Waco and Ruby Ridge while liberals were falling all over themselves defending his actions. Believe me, when Janet Reno sends in armed troops to return a illegal immigrant child to his father in Cuba, it was the right squealing about the intrusiveness of the government and the left cheering from their ideological bleachers.

My point is that all of it is fake, phony, bogus and contrived. None of these people--Libaugh Hannity or O'Reilly on the right, or Matthews, Franken or Huffington on the left has any Constitutional principles. Their allegiance is to winning at all costs. Period.

Posted by: Jaxas | May 17, 2006 10:25 AM

Jazzman-

"So let me get this straight. Will, is it your contention that you don't care about the political, social, and philosophical implications of a government action, only about the determination and interpretation of case law?"

What trite nonsense. Here's a comparable bit of fair rhetoric: "So Jazzman, because you are against the use of voluntarily submitted phone records in court trials you also think rapists should not be brought to justice?"

I'll at least assume good faith on your part and admit the above is nonsense.

I do care about the political, social, and philosophical consequences of government action. But that doesn't mean we have to agree. You've made it sound as if merely by dissenting with you I'm antipathetic towards political, social, and philosophical implications of government action.

Here's a social consequence of denying Smith V. MD: a phone company voluntarily hands records to police that would lead to a conviction in a rape case. The rapist demands that the records are thrown out because it violated his fourth amendment rights. Judge agrees and the rapist walks.

As for my political, social, and philosophical concerns with the Bush Administration, I feel those are best addressed in a ballot box. The absolute worst thing we could do is start demanding insane levels of "privacy" that would make otherwise practical and necessary police work utterly impossible. According to Smith V. MD *GASP* information you give to people cannot be considered private under the 4th amendment. So if your co-conspirator spills the beans you cannot gag order him because you had some absurd "reasonable expectation of privacy". Or if you email someone and threaten to burn down their house you cannot gag them when they voluntarily submit said information to the police. Or when you shout fire in a movie theatre you cannot demand the patrons keep their mouth shut to secure your privacy.

I happen to agree with the 1979 court regarding dialed phone numbers. As a matter of fact, all the numbers I dial are listed on my phone bill. As a matter of fact, whenever I call a cell phone or a phone with caller ID that person knows my phone number. As a matter of fact, I do not personally have any reasonable expectation of privacy over the numbers I dial. And finally, as a matter of fact, the Supreme Court ruled that neither do janitors, truck drivers, cooks, or *GASP* JOURNALISTS.

"We all know that matters in Supreme Court are subject to review given new understandings of individual freedom, needs of society, human behavior and so on."

So why don't you say what you mean? Do you think dialed numbers are a matter of fourth amendment privacy? Because I'd love to hear you explain why phone companies have any obligation not to submit information you willingly give to them.

"I am concerned that narrow views of "security", fed by fears originating in the events of Sept. 11, are letting many Americans forget what the original purposes were in founding this republic."

What the hell does this have to do with Smith V. MD which predates 9/11 by over 20 years? This isn't about NATIONAL security, it's about social security. Because if you insist on making volunteered information protected by the 4th amendment then it's going to be difficult for law enforcement to convict guilty criminals.

If you want to rant and rave about America that you know so well then be my guest. But don't attribute "Will" to represent America, or America to be representative of my views since practically nothing you've said could possibly be attributed to anything I've said.

Posted by: Will | May 17, 2006 10:34 AM

Beyond Smith v. MD?

"Though Congress in the 1980s legislated greater privacy rights for calling data than the court had found in the Constitution, it narrowed those rights in amendments to the Foreign Intelligence Surveillance Act, which allowed FISA warrants for searching call records if the information was "relevant to an ongoing investigation" of terrorism. Details about the numbers being examined had to be provided only "if known."

Will- I'm not sure how a phone company voluntarily handing over records matters. If a person or organization voluntarily engages in an illegal act (following an unwarranted request for information), it does not make the act legal. It just means you have private AND public organizations breaking the law. Someone's lawyer should have said "Ask for a FISA," and we would not be having this debate. Or we might be debating whether it is legal for intelligence agencies to threaten phone companies that don't hand over records.

Posted by: In Justice | May 17, 2006 11:20 AM

In Justice-

Unrelated matter to Smith V. MD. The court's conclusion was that phone companies were not committing a "crime" if they voluntarily handed over your dialed number records to investigators... since you voluntarily handed that information to phone companies. Information handed to third parties willingly can be volunteered to authorities by them.

The only reason authorities would need a "warrant" to get your dialed numbers record is if the phone companies refused to give it to them. In which case I fully support requiring a warrant. If the authorities cannot make a reasonable case to phone companies why they need the record then their case might not be all that reasonable. A judge will ultimately determine that.

Further phone companies might want to enter into contracts with their providers where they promise not to voluntarily hand over phone records. This would also require a warrant, since the police are trying to access something they are refused.

Smith V. MD involves voluntary cooperation. A phone company has no legal responsibility (unless you force them to sign a contract) to keep your dialed records private. If you are calling up an ex-girlfriend and your phone company alerts your current girlfriend (which they wouldn't because it would be unethical) then you do not have legal recourse; you volunteered the information to them. Phone companies are functionally required to collect that data and consumers should be reasonably expected to know that.

Posted by: Will | May 17, 2006 11:32 AM

Will,

I have to admit your bringing up of the case of Smith is very supportive of your claim that phone records (lists of phone numbers called, not the content of conversations) is a good one for this debate. I would point out though that 3 of the 7 justices dissented, some pointing out it could lead to abuses we now see happening in the NSA, and I believe trawling through the nations phone records will lead to abuse. Its only a matter of time and with the November elections coming up and the republicans against the wall right now, I expect the abuse will occur within months.

My point has been not that obtaining the phone records is necessarily a violation of the 4th ammendment and even the trawling may not be. But doesn't it matter how the data is used? I asked in a previous post what the justices would have said had the police used phone records to track the calls of a policeman's spouse who is suspected of cheating. The NSA trawling could just as easily be directed at the democratic party this fall. So again I ask, even though the phone records may not be covered under the 4th amendment as you provided evidence for, what prevents the abuse of what the NSA is doing now? I claim there is government law that prevents government employees from abusing their unique positions. For example, an IRS analyst cannot check up on neighbor and friend's returns to determine their salaries even though he is allowed to look at these records. So the law is in place to prosecute abuse in the case of an IRS employee and I believe it is in place for administration officials who are privy to the NSA data. However, there is a level of oversight at the IRS, the analyst's boss, who ensures the analyst is not peeking at returns improperly. But who is checking the administration use of the NSA trawling data? So far as I know no one outside the administration. And though I blame Bush for so blantently ignoring his constitutional duties, I blame Congrsss more for willfully ignoring their duties of oversight. As Patrick Leahy said, "Shame on us".

Posted by: Sully | May 17, 2006 11:33 AM

Bravo Will!

Posted by: | May 17, 2006 11:38 AM

Will, you have put all your eggs in one basket, the 1979 decision, that is at best subject to interpretation given the fundamentally different nature of seeking data in a legal investigation targeted against an individual in the face of preexisting evidence that that he/she committed a crime, vs a fishing expedition out trolling for to see if they can use the information to identify previously unsuspected lawbreakers. That pesky fourth amendment keeps rearing its ugly head where trolling is concerned, however I'm sure your pals in Washington are working on a way around it, but only to protect us from al Qaeda, of course so it will be OK, no?

Remember that in 1967 the SCOTUS also said that the 4th amendment also applied to telephone communications.

Communications data laws changed considerably in the 1980's, and continue to evolve. Are you predicting that the "do not call" registry is unconstitutional? After all, it exerts an expectation of privacy regarding the use of phone numbers by people with no other reason to have access to and use your number. Should your state license bureau, have the right to sell your phone number to telemarketers? AFter all, that number is public data, you wrote it on your license application.

There are some recent op-eds and letters on this subject that are quite disturbing. For starters, it is not possible that the information in anonymous. Every phone number has a name attached to it and even you can do a reverse lookup. Furthermore, al Qaeda would be stupid to pass calls between their sleeper cells using land lines. Throw away cell phones are available on every streetcorner.

There is no magic shortcut to the grunt policework required to find sleeper cells. You start with Echelon and find suspected terrorists, then you go to FISA and get a warrant to spy on the US soil connection with the calls, and if you think the attack is imminent you spy first and go to FISA later.

And Jazzman, you are eloquent as usual.

Posted by: patriot1957 | May 17, 2006 11:40 AM

Sully-

"I asked in a previous post what the justices would have said had the police used phone records to track the calls of a policeman's spouse who is suspected of cheating."

I would say the spouse has an excellent claim against her husband AND her phone company. I'd also say that the public would be very interested in why the policeman felt that his wife's phone records were worthy of investigation.

In any event, it doesn't matter how the police officer uses the information. If the phone company betrays you... to a police officer, to a friend, to an ex-wife, to a political opponent, etc. then your claim is against them. But you volunteered information to them. If I tell a friend of mine in confidence that I am cheating on my girlfriend, and he tells my girlfriend, then I'm out of luck. If I tell my friend that I've committed a crime, and he volunteers that information to the police, I cannot claim protection under the 4th amendment.

Because phone companies functionally are required to track dialed numbers (do you have a cell phone bill?) customers have no reasonable expecation of privacy of those numbers.

"The NSA trawling could just as easily be directed at the democratic party this fall."

Strictly under Smith v. MD this would require complicit phone companies. In which case, tough luck. If the phone companies have it out for the Democrats then there isn't much you can do. Just as if your Republican friend outs you to the press for cheating on your wife/being a homosexual/cheating on your tax return.

"For example, an IRS analyst cannot check up on neighbor and friend's returns to determine their salaries even though he is allowed to look at these records."

So an IRS analyst "cannot" check on things he is "allowed" to see? This does not make sense.

But I understand your point. If the IRS started handing out my information to my girlfriend then I admit it is possible that I could "reasonably expect" privacy on the matter. I think my IRS records are substantively different than the phone numbers I dial. And the IRS is accountable to me in ways that a phone company is not.

I'll do some thinking on that. Ultimately I do not think it challenge Smith V. MD. There is something substantively different between a phone company handing over my dialed numbers list (constitutional) and them handing over recordings of my personal phone calls. I have a reasonable expectation of privacy over the latter because they do not need to record such things in "normal course of business". Further it would require them to actually spy on me.

Analogously there is something substantively difference between the IRS disclosing that I've actually mailed them a letter and disclosing the contents of that letter (my actual tax return).

----

As to your closing point, I'm all for more oversight. But I take offense to anyone claiming "I have a constitutional right to the privacy of my dialed numbers list" -- this is demonstrably false. And although I agree that the Bush Administration has overstepped its authority on issues important to me, I do not think the proper response in knee-jerk SuperPrivacyComplaints that will hamstring lawful police work because this would have a very real consequence in human lives and social justice.

Posted by: Will | May 17, 2006 11:59 AM

What Sully said.

The lack of oversight is alarming here.

Will, you continue to make the most naive statements. Like your rapist analogy (rapist walks because evidence gathering violated his 4th amendment rights). This reflects a lack of understanding of how and why this nation was founded. Basically, the Brits did anything they wanted. If they didn't like you, they came trolling into your house (without a warrant) and searched for something, anything, they could "get" you on. Under English law if I said you raped me, it was incumbent upon you to prove you didn't, and many innocents were imprisoned or even executed for personal vendettas. Want your neighbor's land? Accuse him of something and if he can't prove he didn't do it, put him in prison and viola, his wife is forced to sell his land...to you.

The Founding Fathers said NO MORE. They quoted Blackstone "better ten guilty men go free than one inccocent be imprisoned" (not exact wording, but every source puts it a tad differently). Letting the guilty go free in order to protect our civil liberties should we be the accused, and protecting us from being the accused simply out of a personal vendetta, constitute the most important pillars of your freedom.

If you can't handle that, perhaps its time for you to emigrate, rather than to aid and abet those working to slowly dismantle my civil rights.

Posted by: patriot1957 | May 17, 2006 12:00 PM

"I would say the spouse has an excellent claim against her husband AND her phone company. I'd also say that the public would be very interested in why the policeman felt that his wife's phone records were worthy of investigation."

Think it through. She will have no case when the judge and jury are police cronies. That is what the "nuclear option" is all about, controlling the judiciary and the courts. You just don't seem to get it, once they are allowed to invent reasons to roll over your civil rights, there will be no more legal recourse because they will control the courts too.

And simply change "gay marriage" to "adultress" on the current Rovian aganda to see what the public will say. Lets take bets on whether is Gibson, Hannity or O'Reilley who first says "if she wasn't an adulterer she wouldn't have anything to worry about, would she? this isn't about snoooping, its about morality. A police officer putting his life in the line everyday for the people shouldn't have to worry about whether the little wife at home has the decdency to be faithful to him, should he?j He deserves to have the sanctity of his marriage protected". And sheep everywhere will lap it up like Gospel.

Posted by: patriot1957 | May 17, 2006 12:10 PM

patriot-

"...different nature of seeking data in a legal investigation targeted against an individual in the face of preexisting evidence that that he/she committed a crime, vs a fishing expedition out trolling for to see if they can use the information to identify previously unsuspected lawbreakers."

No, it is not different. It is about whether or not individuals can claim some bit of information X that they volunteered to Y is constitutionally protected. If I tell my friend that I'm a homosexual, and he tells the press, then I have no constitutional claim against him. And there is no crime. The crime was relevant in Smith V. MD because it happened to be the (correct) justification the police department used to get voluntary information from the phone companies.

You cannot reasonbly expect privacy over things you volunteer to other people. If you email a friend and complain about your boss, and they tell your boss, your 4th amendment rights have not been violated; you gave up privacy over that information.

Phone companies are functionally required in the normal operation of business to keep your phone records. You know that. I know that. Reasonable people know and expect that. Ergo reasonable people cannot claim after the fact that such records were *really* meant to be private.

"That pesky fourth amendment keeps rearing its ugly head where trolling is concerned, however I'm sure your pals in Washington are working on a way around it, but only to protect us from al Qaeda, of course so it will be OK, no?"

I don't have pals in Washington. I live in Texas. I acknowledge that Smith V. MD does not authorize "trolling" or unwarranted "fishing". All Smith V. MD authorizes is the use of dialed numbers records voluntarily given to prosecuters. If the NSA asks politely for the dialed records of all democrats, and the phone companies comply, then I don't see a legal problem.

Not because I LOVE the NSA. But because I hope that phone companies would not do that. And also because I know restricting voluntary participation between investigators and phone companies would make otherwise necessary police work untenable. This would be bad, in my opinion.

"Remember that in 1967 the SCOTUS also said that the 4th amendment also applied to telephone communications."

A record of a set of numbers you dialed is substantively different from the actual "communication". There is no communication. All it shows is a dialed number and a received number. Just as looking on the front of envelope will tell you who sent it and who is meant to receive it; yet it will disclose little of interest about the contents of the envelope.

"Are you predicting that the "do not call" registry is unconstitutional? After all, it exerts an expectation of privacy regarding the use of phone numbers by people with no other reason to have access to and use your number."

Uhm, no patriot. The Supreme Court says you cannot "reasonably expect" privacy regarding dialed numbers. Merely from this fact alone we cannot conclude that it is "unconstitutional" to legislate a reasonable expectation of privacy over one's phone number. Just because it is the case that X is not constitutionally protected does not mean that protecting X is unconstitutional. You know that. Quit the theatrics.

----

As to Al Queada... you are like the third or fourth person to make this about national security. I didn't. I'm more concerned with regular police work in pursuing people who intimidate a person they've robbed by calling them repeatedly and driving by their house (Smith V. MD). If you want to make dialed numbers lists "constitutionally protected" then you eliminate even the possibility that phone companies can voluntarily aid police investigations. If volunteered information is "protected" by the constitution than the police would require a warrant just to ask a person whether or not you threatened to burn down their house over the phone. And should that person volunteer such information to the police, they could legally expect the court to throw the evidence out; because the threatener had a 4th amendment protection over information they volunteered to someone else (that information being "I will burn down your house").

This is of course absurd. We cannot simultaneously expect convictions of criminals and make the burden of proof completely untenable. Cooperation between investigators and individuals, companies, corporations, and organizations is absolutely necessary for the public good. That's what I see in Smith v. MD.

Posted by: Will | May 17, 2006 12:22 PM

patriot-

"Basically, the Brits did anything they wanted. If they didn't like you, they came trolling into your house (without a warrant) and searched for something, anything, they could "get" you on."

And this has no bearing on the discussion at hand, and you would know that if you bothered to read the case. The police did not mosey into the phone company headquarters and demand at gun point records. They asked... and the phone companies were compelled by moral imperative to catch a criminal and complied. And what do you know a crime was solved. And when the criminal demanded privacy rights the Supreme Court decided that individuals and companies have a right to pass information --voluntarily given to them-- on to other people.

So *GASP* if your friend tells you that he is going to kill your parents you have the right to tell police without worrying about the "evidence" (his confession to you) being tossed out because he had a "reasonable expectation of privacy" over anything he tells you in conversation. Absurd.

"If you can't handle that, perhaps its time for you to emigrate, rather than to aid and abet those working to slowly dismantle my civil rights."

Give me a _____ break. I'm arguing consistent with a Supreme Court case (THE SUPREME COURT -- YOU KNOW THE ONE THE FOUNDING FATHERS EMPOWERED TO INTERPRET THE CONSTITUTION) a very reasonable point that has absolutely zero to do with the nonsense you are arguing. If you have a problem with the Constitution, or the Supreme Court, I suggest that YOU pick up your belongings and leave the country.

You're going to lecture me about the founding fathers and what they "really meant". Well I know what the Supreme Court "really meant" in 1979. And I agree with it. And I love this country.

You're the one with a chip on your shoulder over the courts, the government, America, etc.

Posted by: Will | May 17, 2006 12:31 PM

_illegal_ immigration?


do you think when our marginalized citizens are being swept under the carpet that we should be concerning ourselves with those that have stolen their way into our lives


and are taking our congresses time and spending what money isn't diverted into the


OCCUPATION EFFORT


and away from schools, old people and children as well as single mothers that...


we should turn our backs on our own,


like your president, congress and sitting administration would have you do...


so that they don't look bad?


poisoning our stream with their distorted view of reality....?

do you get it?

the real profaning of our country is being done by


_this_ congress


and your effing president.


the bridge to nowhere is "still in progress"

and your politicians are building it


with your sacrosanct approval miss tidy bottome....gro u p thank you very much.


.


be a force for change not stinkyneess described as "oh, that's too mhcu"

otay?

.

Posted by: and how do you feel about | May 17, 2006 12:38 PM

Will wrote:
"I would say the spouse has an excellent claim against her husband AND her phone company."

Ah! What type of claim against the husband? Could she also have a claim against the police department and thus the government?

Will also wrote:
"If I tell my friend that I've committed a crime, and he volunteers that information to the police, I cannot claim protection under the 4th amendment."

Careful here. The 4th amendment protects you against the government, not your neighbor or friend. If a friend breaks into your house to rummage through your papers, its breaking and entering. If the government does it without a warrant, its a violation of your 4th amendment rights.

Will also wrote::
"I have a reasonable expectation of privacy over the latter [phone converstaions] because they do not need to record such things in "normal course of business". Further it would require them to actually spy on me."

So we have the phone company not actually spying by handing over the phone records of Americans but we have the government doing just that. They could focus on you and begin their datamining, something that is not normally done in the normal course of business. That is spying, and it is being done without a warrant. I find that very different from the Smith case because:
1) In Smith the review of phone records was limited to one individual who was a legitimate suspect.
2) The police did not set up trawling, going though all phone records to see who was calling the victim. There was no fishing here and the phone records were only obtained AFTER they had a suspect and only that suspect's phone records were obtained. Considering the limited scope of what the police did in Smith and the 4-3 decision of the justices, I think it is a stretch to use it as presidence for the government to trawl through the phone records of all Americans when no crime has been committed looking for evidence of a potential crime. You need to ask why this has not been used in the past against organized crime, without a warrant, if it is perfectly legal?

Posted by: Sully | May 17, 2006 12:51 PM

patriot-

"Think it through. She will have no case when the judge and jury are police cronies. That is what the "nuclear option" is all about, controlling the judiciary and the courts. You just don't seem to get it, once they are allowed to invent reasons to roll over your civil rights, there will be no more legal recourse because they will control the courts too."

I need to clarify what I meant by "case". I did not mean she had a legal "case" against any of those people. Because if you voluntarily give someone information they can legally betray you; you have no constitutionally protected right over information you voluntarily give to someone else. What I meant by "case" was that she should switch phone services, or tell the media that her deadbeat police officer boy friend was pursuing her records with phone companies -- and succeeding.

You are ranting. There is no "civil right" over information you give to people. If I tell you that I am gay my civil rights are not in jeapordy when you tell people. Voluntarily transmitted information is not protected under the Constitution.

Take a deep breath. You are becoming unhinged and crazy.

Posted by: Will | May 17, 2006 12:55 PM


BREAKING NEWS ABOUT NSA SPYING!!!

PLEASE BOOKMARK:
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THE SPIES WHO SHAG US
The Times and USA Today have Missed the Bigger Story -- Again

Buzzflash
Friday, May 12, 2006
E-Mail Article
Printer Friendly Version

by Greg Palast

I know you're shocked -- SHOCKED! -- that George Bush is listening in on all your phone calls. Without a warrant. That's nothing. And it's not news.

This is: the snooping into your phone bill is just the snout of the pig of a strange, lucrative link-up between the Administration's Homeland Security spy network and private companies operating beyond the reach of the laws meant to protect us from our government. You can call it the privatization of the FBI -- though it is better described as the creation of a private KGB.

********************

Choicepoint Responds to this Article


Listen to Greg Palast, reading Double Cheese With Fear.


For the full story, see "Double Cheese With Fear," in Armed Madhouse: Who's Afraid of Osama Wolf and Other Dispatches from the Front Lines of the Class War."

********************


The leader in the field of what is called "data mining," is a company called, "ChoicePoint, Inc," which has sucked up over a billion dollars in national security contracts.

Worried about Dick Cheney listening in Sunday on your call to Mom? That ain't nothing. You should be more concerned that they are linking this info to your medical records, your bill purchases and your entire personal profile including, not incidentally, your voting registration. Five years ago, I discovered that ChoicePoint had already gathered 16 billion data files on Americans -- and I know they've expanded their ops at an explosive rate.

They are paid to keep an eye on you -- because the FBI can't. For the government to collect this stuff is against the law unless you're suspected of a crime. (The law in question is the Constitution.) But ChoicePoint can collect it for "commercial" purchases -- and under the Bush Administration's suspect reading of the Patriot Act -- our domestic spying apparatchiks can then BUY the info from ChoicePoint.

Who ARE these guys selling George Bush a piece of you?

ChoicePoint's board has more Republicans than a Palm Beach country club. It was funded, and its board stocked, by such Republican sugar daddies as billionaires Bernie Marcus and Ken Langone -- even after Langone was charged by the Securities Exchange Commission with abuse of inside information.

I first ran across these guys in 2000 in Florida when our Guardian/BBC team discovered the list of 94,000 "felons" that Katherine Harris had ordered removed from Florida's voter rolls before the election. Virtually every voter purged was innocent of any crime except, in most cases, Voting While Black. Who came up with this electoral hit list that gave Bush the White House? ChoicePoint, Inc.

And worse, they KNEW the racially-tainted list of felons was bogus. And when we caught them, they lied about it. While they've since apologized to the NAACP, ChoicePoint's ethnic cleansing of voter rolls has been amply rewarded by the man the company elected.

And now ChoicePoint and George Bush want your blood. Forget your phone bill. ChoicePoint, a sickened executive of the company told us in confidence, "hope[s] to build a database of DNA samples from every person in the United States ...linked to all the other information held by CP [ChoicePoint]" from medical to voting records.

And ChoicePoint lied about that too. The company publicly denied they gave DNA to the Feds -- but then told our investigator, pretending to seek work, that ChoicePoint was "the number one" provider of DNA info to the FBI.

"And that scares the hell out of me," said the executive (who has since left the company), because ChoicePoint gets it WRONG so often. We are not contracting out our Homeland Security to James Bond here. It's more like Austin Powers, Inc. Besides the 97% error rate in finding Florida "felons," Illinois State Police fired the company after discovering ChoicePoint had produced test "results" on rape case evidence ... that didn't exist. And ChoicePoint just got hit with the largest fine in Federal Trade Commission history for letting identity thieves purchase 145,000 credit card records.

But it won't stop, despite Republican senators shedding big crocodile tears about "surveillance" of innocent Americans. That's because FEAR is a lucrative business -- not just for ChoicePoint, but for firms such as Syntech, Sybase and Lockheed-Martin -- each of which has provided lucrative posts or profits to connected Republicans including former Total Information Awareness chief John Poindexter (Syntech), Marvin Bush (Sybase) and Lynn Cheney (Lockheed-Martin).

But how can they get Americans to give up our personal files, our phone logs, our DNA and our rights? Easy. Fear sells better than sex -- and they want you to be afraid. Back to today's New York Times, page 28: "Wider Use of DNA Lists is Urged in Fighting Crime." And who is providing the technology? It comes, says the Times, from the work done on using DNA fragments to identity victims of the September 11 attack. And who did that job (for $12 million, no bid)? ChoicePoint, Inc. Which is NOT mentioned by the Times.

"Genetic surveillance would thus shift from the individual [the alleged criminal] to the family," says the Times -- which will require, of course, a national DNA database of NON-criminals.

It doesn't end there. Turn to the same newspaper, page 23, with a story about a weird new law passed by the state of Georgia to fight illegal immigration. Every single employer and government agency will be required to match citizen or worker data against national databases to affirm citizenship. It won't stop illegal border crossing, but hey, someone's going to make big bucks on selling data. And guess what local boy owns the data mine? ChoicePoint, Inc., of Alpharetta, Georgia.

The knuckleheads at the Times don't put the three stories together because the real players aren't in the press releases their reporters re-write.

But that's the Fear Industry for you. You aren't safer from terrorists or criminals or "felon" voters. But the national wallet is several billion dollars lighter and the Bill of Rights is a couple amendments shorter.

And that's their program. They get the data mine -- and we get the shaft.


**********
Greg Palast is author of Armed Madhouse: Who's Afraid of Osama Wolf?, China Floats Bush Sinks, The Scheme to Steal '08, No Child's Behind Left and Other Dispatches from the Front Lines of the Class War, out June 6. You can order it now.


Posted by: che | May 17, 2006 12:57 PM

Welcome to 1930's Germany

Posted by: LSM | May 17, 2006 01:08 PM

Will, its not personal.

I just think you need to follow through on your ideas to the conclusion.

I have no objection to phone companies turning over numbers as part of a legitimate prosecution of a described crime wth a well defined suspect. You are correct, the Supreme Court says they can do just that...if they want to.

But I have serious reservations about their choice to participate in a fishing expedition purported to look for "terrorists", but which has no actual oversight to know what they do with the data they collect. I do not trust this administration to have my safety and security as their primary interests. I do not believe fighting terrorists is their long term goal. I believe if this nation continues on its current course my children or grandchildren will be more afraid of their own government of al Qaeds.

Do did succeed in one thing, however. Your posts have inspired me to change my phone service to Qwest.

And I am both amused and mildy offended by Jaxas comment about the partisanship of government actions. I was indeed concerned when Starr asked the Secret Service to spy on Bill Clinton, and remembered it well when this administration gave the Secret Service a pass on spying on Abramoff. Yes, its partisan to resent that the long arm of government can be preferentially applied, but I am at this point more worried about the long arm of government.

Posted by: patriot1957 | May 17, 2006 01:10 PM

Sully-

"Ah! What type of claim against the husband? Could she also have a claim against the police department and thus the government?"

Sorry on this matter, read above to patriot. When I say "claim" I do not mean legal claim. I meant she should switch services or have her new boyfriend beat up the cop. That is my fault on the ambiguity.

But if the phone company betrays a woman to a cop then there really isn't any recourse besides ruining that phone company by switching services (and exposing them). Now, if the police officer lied to the phone companies in substantial ways to get said information --he lied that she was under investigation for murder, for instance-- then he would be committing a crime. And this most certainly could be brought to court.

But if the police officer politely asks a phone company for his girlfriend's records and the company complies, it's no different then if I asked for my girlfriend's records and they complied. Illegal? No. Unethical? Absolutely, and I'd change cell phone providers immediately.

I do not think it is unethical for phone companies to cooperate with authorities in the normal pursuit of criminals. I believe they should have a right to refuse, in which case a warrant would be necessary.

"Careful here. The 4th amendment protects you against the government, not your neighbor or friend. If a friend breaks into your house to rummage through your papers, its breaking and entering. If the government does it without a warrant, its a violation of your 4th amendment rights."

Right. And the phone company is not "the government". The ruling protected the phone company's right to volunteer information to the government about you that you volunteered to them. Just as it would protect my right to volunteer information to the government about your sexual preference, or that you told me you wanted to kill my parents.

"That is spying, and it is being done without a warrant. I find that very different from the Smith case because:"

Because it is different. We are not in disagreement on that. There is a difference between the government politely asking a phone company for records and receiving them, and a company demanding records without warrant and getting them. If a phone company refuses to give that information I can see why a warrant should/would be required.

This is not what Smith V. MD addresses. It addresses the general question of whether or not the Government REQUIRES a warrant to look a dialed phone records. As a matter of fact it does not. All that is required is consentual cooperation between the government and a phone company.

Just as the government would not need a warrant merely to ask your sister if you happened to mention that murder/robbery we suspect you participated in. If you told her ... and she told us ... then that information is not "private" and is not protected by the 4th amendment.

"1) In Smith the review of phone records was limited to one individual who was a legitimate suspect.
2) The police did not set up trawling, going though all phone records to see who was calling the victim. There was no fishing here and the phone records were only obtained AFTER they had a suspect and only that suspect's phone records were obtained. Considering the limited scope of what the police did in Smith and the 4-3 decision of the justices, I think it is a stretch to use it as presidence for the government to trawl through the phone records of all Americans when no crime has been committed looking for evidence of a potential crime. You need to ask why this has not been used in the past against organized crime, without a warrant, if it is perfectly legal?"

1) seems irrelevant. The police could forseeably ask a phone company for the records of non-suspects to pursue suspects. Or even tangentially related people who are totally innocent. If suspect claims he received a phone call at X time from Y phone number, checking Y's phone records (though Y is totally innocent) could establish a lieing suspect.

As to 2)... what??? Am I using Smith V. MD as a justification for trolling without warrant or consent? Uhm, news to me?

And it was a 5-3 decision, not 4-3.

Posted by: Will | May 17, 2006 01:14 PM

Oh, and calling people who dissent "unhinged" is getting old and people are seeing through it. Try someting else. That one doesn't work any more.


Posted by: patriot1957 | May 17, 2006 01:14 PM

Will wrote:
"If the NSA asks politely for the dialed records of all democrats, and the phone companies comply, then I don't see a legal problem."

Now here is the crux of my disagreement with your position. I agree the phone company *may* not have a legal problem, but the NSA certainly does. Lets say an IRS analyst decided to use his position at the IRS to compile a list of the addresses of Americans who had incomes over $200K and sells that list to junk mail marketers who want to sell to wealthy people. Now, lets say another person who works at a mortgage company compiles a list of addresses of mortgage holders who, through financial disclosures used to obtain mortgages, have stated they have incomes over $200K. Both people compile similar lists and both have probably broken the same local and federal laws, but the IRS analyst violated your 4th amendment rights while the mortgage guy did not. The reason is that the IRS analyst is an agent of the government. The information you expected to not be made public was made public by an agent of the government yet you had a reasonable expectation of privacy with both mortage and tax information.

Similarly, if the NSA only used known democrats numbers selected from all numbers given to the NSA to trawl for information so they can connect the dots on democratic strategy this fall, then it is a blatent violation of the 4th amendment. Its how the government usesthe data, not necessarily how it collects it, that makes it a violation of the 4th amendment.

So the question I have is not whether the phone company broke laws by giving the data to the NSA or whether the NSA is breaking laws just by having the data. The question is whether the NSA is violating the 4th amendment in its use of the data. Bush says no. Without oversight, no one else has a clue. Again, the problem is congress. Get the reps out and oversight will happen.

Posted by: Sully | May 17, 2006 01:16 PM

patriot-

"But I have serious reservations about their choice to participate in a fishing expedition purported to look for "terrorists", but which has no actual oversight to know what they do with the data they collect."

I would have serious reservations if my phone company was volunteering my phone calls to political opponents as well. I would switch phone services, for one. But I would not have a constitutional argument against them because I voluntarily use their phone services.

Frankly I have a higher opinion of phone services. I think cooperation between them and authorities is overwhelmingly positive. And I would HOPE that if the NSA said "We happen to need the phone records of this list that happens to be completely made up of Democratic Congressional candidates" they would say "Uhm... Hold the phone?"

But demanding that dialed number records are "private" --and consequently that voluntary information is private-- would essentially hamstring lawful police work to the point of uselessness. And that has far more terrifying consequences than having to change phone services because they handed over my information to the NSA.

I think you all need to take a careful look at what I'm saying. In some ways Smith V. MD was very broad; it reaffirms that voluntarily transmitted information cannot be reasonably expected to remain private. It also established that dialed numbers records, due to how phone companies function, are voluntarily sent to phone companies everytime a phone call is made.

But it is also very limited. It says nothing about phone companies that refuse to cooperate. It says nothing about trolling, or spying, or fishing. It merely says that phone companies can cooperate with authorities at their leisure. What they do with the information you consentually give them is THEIR right.

Posted by: Will | May 17, 2006 01:20 PM

larger issue of oversight...

you're reasoning presumes that they have a legal reason for asking


they don't


no more than I have a legal reason for asking you why you were kissing 12 year olds when you were 15....


you want that on your record?


anyone,


the way things are going can be held responsible, as part of public record,


for anything that they have done...


you're moving into a transparent society,


there are online maps available of every square inch of USA from spys in the sky...


listen closely,


when it's revealed that you can look at the rooftop of any house inthe United States with _available_ footage from a commercial online site,


what do you think NSA has?


can they watch you right now as you walk out to the back porch with your playboy naked?


is that cool?

two twelve year old children kissing, is that any of their business, or those same children discussing what is happening to them as they enter puberty,

is that their business?


you can give away your rights all that you want to but shut up

about giving mine away,

okay?


you want to dance that's fine...it's you final one.

.

Posted by: actually you're ignoring the | May 17, 2006 01:21 PM

Here's one for you Will:

A woman found a winning lottery ticket in her husband's truck 11 months after the drawing. The state refused to pay saying the 180 day time period for claiming the prize had passed. The ruling says the state has to pay and here is why:

"The state appeals court ruled that the deadline was illegally imposed because it was not properly publicized. The claim deadline is printed on the back of the ticket, but the court said it couldn't be enforced because a purchaser would not see that until after buying it."

Now when I signed up for my landline phone and my cell phone I was given the "privacy statement" in documents I received AFTER I had signed up for the service. So, though I had the privacy statements that say my phone information can be given out to law enforcement, I did not know that when I signed up. I doubt many did when they signed up. Hmmm, maybe the phone companies ARE liable for giving out phone records...

Posted by: Sully | May 17, 2006 01:33 PM

Sully-

"The information you expected to not be made public was made public by an agent of the government yet you had a reasonable expectation of privacy with both mortage and tax information."

Fair enough.

"Similarly, if the NSA only used known democrats numbers selected from all numbers given to the NSA to trawl for information so they can connect the dots on democratic strategy this fall, then it is a blatent violation of the 4th amendment. Its how the government usesthe data, not necessarily how it collects it, that makes it a violation of the 4th amendment."

Not sure I agree with this. How the government uses information is important in how we should react (at the ballot box). But if I do not have a constitutionally protected 4th amendment reasonable expectation over privacy of information the government receives from people then it doesn't matter how said government uses the information (constitutionally).

I would be super pissed if I found out prosecuters used my friend's testify to leak to the public that I was an alcoholic. And it might even be a crime if a judge determines that it corrupts the investigative process. But information that I volunteer to people is not my private business anymore. And if they volunteer it to the authorities, and the authorities use it against me, then it's my fault for trusting the wrong person.

Your point is well received on me. I do not want the government using information, regardless of how it is collected, to "out" people. I want them to use it to pursue criminals. We can agree on that much.

The problem is what you consider "outing" others might consider "criminal". This leak case is a perfect example. If you outlaw voluntary participation between the NSA and phone companies in this instance it's hard not to conclude that other voluntary cooperation could be threatened.

If the NSA is using voluntary phone records to commit crimes, like lie to judges to obtain warrants on democrats so they can spy, or libel democrats in the media, then the crimes speak for themselves.

If it is merely the NSA using phone records, given to them voluntarily by phone companies, to connect the dots on Democratic campaign strategy, then I would consider this an enormous waste of government resources. Crime? Maybe, maybe not. And we know it isn't a violation of your 4th amendment rights because Smith V. MD established that you have no reasonable expectation of privacy over dialed phone records.

"The question is whether the NSA is violating the 4th amendment in its use of the data. Bush says no. Without oversight, no one else has a clue. Again, the problem is congress. Get the reps out and oversight will happen."

Bush does not determine constitutionality, no matter how much he may think he does. The Supreme Court does.

Posted by: Will | May 17, 2006 01:34 PM

7 years ago?


do you want people to be able to google that?


what company has the right to ask you if you've ever been involved in litigation?

none.


but it shows up on your credit check.


some companies will not hire you if you've been involved in litigation....it means you might sue them...

since you're not an employee yet, they can screen you and refuse to offer you a job based upon the fact that you had to sue a drunken driver to get your car paid for....


is that _fair_ ?

it's a fact....that is the way things are set up for companies _right now_

out sourcing,

downsizing,

international corporations,

_illegal_ immigration


taking your rights,


it's all part of making the peasants peasants again....

taking back


all of the gains that we've fought for over the last three centuries....

being done


right


now.

.

Posted by: did you have a bout of depression | May 17, 2006 01:39 PM

or are you too prissy missy?


show them what you're made of....


compared to sex in the city of desperate housewives what I've said is tame, or even Oprah!

.


knock off the shortsighted behaviour

.

Posted by: put this blog on the front page | May 17, 2006 01:41 PM

Doubleplusungood, indeed. Today I'm ordering a [custom] bumper sticker that says "Anyone who loves Big Brother is a Zombie." The sign on my office door already says that. It's up to us, the people who are, at least temporarily, still free to speak and act. We have to speak at every opportunity and change the debate - get our cowardly compatriots to understand that terrorism is NOT the greatest danger facing us.

An aside to those who are hung up on the "lawlessness" of illegal aliens: when have bad laws ever been obeyed? Think about prohibition. Immigration laws will be obeyed when they make sense and are humane. If anyone with a clean record and a job offer could get into the US within six weeks, nobody but criminals would risk crossing the Arizona desert to sneak in. Then a draconian border policy would be justified.

Posted by: Marcia Martin | May 17, 2006 01:46 PM

Marcia appears to be off topic, but I'll indulge her.

Marcia, why exactly must we allow everyone that wants to work in? No other country in the world does that.

Posted by: Geb | May 17, 2006 01:55 PM

After reviewing the Bush administration's record over the last five years, why in the world should (could) we trust them to be able to sucessfully navigate the extremely slippery slope the NSA spying programs represent ?

Posted by: Patrick DeBurgh | May 17, 2006 01:55 PM

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