Why the NSA Needs Your Phone Calls….
I've been a fan of
Stewart Baker's for a lot of years, having been a cypherpunk in the era of the
Clipper Chip. Unfortunately this article seems to gloss over Fourth
Amendment issues.
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.
As we have
seen recently the Supreme Court has held the people asserts an individual
right for the Second
Amendment, how can it do any less for the Fourth Amendment?
Let's be
clear, the order Mr. Baker refers to is on collecting call records
("telephony metadata") from Verizon for "communications (i) between the United
States and abroad; or (ii) wholly within the United States, including local
telephone calls".
Mr. Bakers describes minimization, which appears to be a
John Yoo-ism, requiring probable cause, the issue I have with the court order
under the Fourth Amendment is exactly that - probable cause ("As long as the
minimization rules require that all searches of the collected data must be
justified in advance by probable cause, Americans are protected from arbitrary
searches.").
By googling the question 'How many customers does Verizon
have?' we find an estimate of 144.8 million customers as of 10 September 2012
and can use this as a ball park estimate of how many people are affected by
these trimonthly recurring court orders.
These recurring court orders would
seem to imply Verizon's more than 140 million customers be suspects in terrorist
activities involving foreign nationals (the domain of Foreign Intelligence
Surveillance Court - FISC).
It doesn't seem likely the government can prove
probable cause to suspect 140 million people on an on going basis of aiding and
abetting foreign nationals involved in terrorist or other activities inimical to
the laws of the United States, while it does appear inimical to those 140
million peoples rights against unreasonable searches, supported by oath or
affirmation and particularly describing...the persons or things to be
seized.
The reasoning can be demonstrated by breaking the circular logic
used to support minimization. For example following the first order of a
duration for 3 months, some number approaching the unity number of Verizon
customers would not be implicated.
Why aren't these customers excluded from
any future order, lacking probable cause?
This point is revealed in the PBS
video Spying
on the Home Front originally broadcast on May 15 or 16 2007.
The FBI
collected records from every Casino in Las Vegas following a terrorist alert and
after extensive searching found no guests or customers were implicated in any
terrorist threat.
In this particular case the video reveals that the
terrorist threat was not valid, the result of misinterpretation and the FBI
didn't repeat the effort of getting a warrant with no actual probable
cause.
As a minimum means testing of the results should be performed by the
FISC court determining whether this massive intrusion treating 140 million
people as suspects is justified.
This is all a horse and pony show
targeted at giving this massive intrusion of privacy the general garment of
legality without the consent of the people and cloaking the lack of results
under the aegis of national security in a war on terrorism with no end in
sight.
Note the lack of specificity on how the use of this seized data will
be used, instead relying on rules made in secret and denied oversight of "the
people" ("The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people." Perhaps we'll
see a Ninth Amendment case?).
The secrecy appears essential to preventing
this house of cards reasoning from collapsing under it's own weight. [ Reply to This | Parent | # ]
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