A Thinking Reed

"Man is but a reed, the most feeble thing in nature, but he is a thinking reed" – Blaise Pascal

Constitution, schmonstitution

From USA Today:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren’t suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

Read more…

But only people who are doing something wrong have any reason to worry, right?

15 responses to “Constitution, schmonstitution”

  1. Maurice Frontz

    I presume that the relevant section of the Constitution is Amendment IV: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

    While not granting that such activity, if true, is necessarily the coming-true of some Orwellian prophecy, this kind of surveillance seems to be a clear violation of Constitutional protections.

    My honest question is: Is there any situation, such as, say, pervasive terrorist threat in a digital age, that the constitutional mandate of “providing for the common defense” dictates a response which was not anticipated by the framers of the Constitution (such as, say, looking for patterns of telephone calls?) Or should we be prepared, like Patrick Henry, to take a few hits in order that liberty may be preserved?

    In other words, “Got any better ideas?”

    In writing this, I presume you are not of the conspiracy camp who believes that the terrorist threat is nonexistent and a smokescreen for the power-mongering of certain theocratic officials.

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  2. Lee

    Actually, my problem with stuff like this has more to do with procedural and separation-of-powers issues than anything else. This is my biggest beef with the Bush administration (even bigger than the – IMO – ill-advised war in Iraq): the expansive understanding of executive power that allows the President to do just about anything he wants under the umbrella of “defending us from terrorism.”

    I have no doubt that Congress would have approved something like the President’s surveillance program if he had actually bothered to ask for it. Not that I’d necessarily agree with it, but we would’ve at least had an open debate.

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  3. CPA

    The key phrase is “using data provided by AT&T, Verizon and BellSouth”

    Contrary to popular belief, your calling data is NOT private under the constitution. Absent any law or contract to the contrary, it belongs to At&T, Verizon, BellSouth, and whomever they chose to provide it to. If they chose to provide it to the NSA, and if that bothers you, well, find a phone company that won’t. The article says Qwest has refused to participate: OK sign up with Qwest (which has not been suffered any bad consequences from its refusal). Issue solved.

    Now the Congress has put in additional protections (above and beyond what the Constitution mandates) prohibiting telecom companies from passing on certain types data about their clients to the gov’t without the gov’t fulfilling certain conditions. Unfortunately for those who want to make a legal case of this, the information about calling data is, if stripped of names, SS#’s, addresses, perfectly legal to hand on to the gov’t:

    “Paul Butler, a former U.S. prosecutor who specialized in terrorism crimes, said FISA approval generally isn’t necessary for government data-mining operations. ‘FISA does not prohibit the government from doing data mining,’ said Butler, now a partner with the law firm Akin Gump Strauss Hauer & Feld in Washington, D.C.

    The caveat, he said, is that ‘personal identifiers’ — such as names, Social Security numbers and street addresses — can’t be included as part of the search. ‘That requires an additional level of probable cause,’ he said.”

    This is a non-issue: UNLESS, the Democrats have hearings about it — in which case it could save the Republicans’ bacon in November. Terrorism surveillance is one isse where the white collar class and the rest of American think very differently.

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  4. Joshie

    anybody else find it ironic that somebody with the handle “cpa” is making snarky remarks about the “white collar class”?

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  5. Lee

    I’m no legal scholar, but why isn’t a phone number a “personal identifier”?

    I concede that most people may weigh the trade-offs differently than I do, but I wonder if they consider that, since terrorism in one form or another, like the poor, will always be with us, that every time the gov’t arrogates more power in the name of fighting terrorism that such arrogation is in all likelihood permanent?

    And, unfortunately, it doesn’t look like I can sign up with Qwest since there service base seems to be confined to the west. But isn’t the real point that this program was supposed to be secret, i.e. we weren’t supposed to find out about in the first place? So we’re not supposed to have a choice.

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  6. Lee

    By the way, here’s an informative discussion of the legal issues:

    http://volokh.com/archives/archive_2006_05_07-2006_05_13.shtml#1147361955

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  7. Maurice Frontz

    Thanks for the Volokh link, Lee. I guess part of the debate concerns the public perception about what is “private.” From the phone company’s perspective, that you call someone is their information – what you say in that conversation is not. So in effect, you calling me from your home in Philly is a public event, known to the phone company, who can then say to anyone it darn well pleases, “On such-and-such a day, there was a call from such-and-such a number to such-and-such a number.” One could not infer from that what the conversation was about, or even who the heck was on the phone. But if a pattern emerges, etc. Does that rise to the level of “unreasonable search and seizure?” The Volokh guy doesn’t seem to think so.

    I agree with you that what seems to be most important is the concentration of executive power. And I think that this is not lost on the Congress; in fact, it seems that the Congress has effectively washed its hands of the President. I remarked to a friend yesterday that President Bush seems to be operating in a vacuum. He has lost the ability to control the conversation.

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  8. CPA

    From the Volokh link, I can see that there are (possibly) statutory issues, but certainly no constitutional ones.

    I am sure the statutory issues will get resolved in time. Maurice is of course correct when he says: “I remarked to a friend yesterday that President Bush seems to be operating in a vacuum. He has lost the ability to control the conversation.”

    But let me ask: as it stands right now, who has more information about you: the NSA, the IRS, or your credit card company?

    And cpa is my initials, Joshie. But I confess to being white collar myself. So means its OK to ignore anything I say, especially if it contradicts what you really hope to be the case.

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  9. Lee

    CPA – for me the issue is not so much what information is being collected as how it’s being collected.

    In that sense I do think there’s an important difference between:

    a. My providing information to a credit card company as part of a voluntarialy contracted relationship.

    b. My reporting personal information to a government agency that is subject to congressional oversight.

    c. A shwadowy agency collecting information in secret at the unilateral behest of the President.

    I concede that this isn’t really a constitutional issue – in which case my hastily dashed off post title is misleading. But I do think there’s an important issue about transparency and accountability at work here. Maybe that’s more a question of the spirit of the constitution than the letter. 😉

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  10. CPA

    OK, put it like that and I’d agree.

    And I’d add a fourth concern: fighting terrorism is serious business. If some team keeps picking up fouls and looses key players, that’s a problem, and it doesn’t really matter if the ref is biased. OK, if he’s biased, life with it and change your game accordingly. Winning is too important to jeopardize by standing on principle. I think the Bush administration is frequently tilting at separation of powers windmills while fighting the war on terror. It’s like the War Powers Act which every administration objects to, even though every administration ends up finding in practice you can’t put significant amounts of men in harm’s way without Congress’s approval. The military tribunals which used up incredible amounts of political capital but which were never actually used, etc., are cases in point. Regardless of the justification, if they waste time and effort, now is not the time to push the issue.

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  11. CPA

    “Winning is too important to jeopardize by standing on principle.”

    This could sound really bad — let me just say that this depends of course on what kind of contest you are in and what principle is in question. What I meant was “winning the war on terror is too important to jeopardize by using to try to force a reshaping of highly arcane and disputed principles of legal separation of powers”.

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  12. CPA

    But as far as the politics of it goes, I was right: 66% of Americans support the program and would have no problem themselves being tracked by it. (more here)

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  13. Joshie

    No need to get touchy, cpa, just making an observation. And please note that I haven’t actually said that I disagreed with you about anything in this discussion.

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  14. CPA

    OK, Joshie, then that’s another illustration of the inability of people to understand the tone in which comments are made in cyber-space.

    sorry to be so touchy.

    Reply
  15. Joshie

    Hmmmmm…I’m starting to think you may be a disgruntled AT reader mad at the lack of an update. You ever had a pierced septum?

    Reply

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