Friday, May 12, 2006

NEW REVELATIONS!!!!!!!!!!!!!!!

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

It turns out the government's ability to look at your phone records without a court order has only been a settled point of law since 1979! (see Smith v. Maryland) In an opinion written by conservative firebrand Harry "Hang 'em High" Blackmun and joined by such dangerous reactionaries as Warren "Shoot First" Burger & John "Rights Schmights" Stevens, the court held:

(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable."

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. 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 to the police.

It goes without saying that it would be unreasonable to expect reporters or lawmakers to be "up on" a legal precedent that has only been on the books for 27 years.


Anonymous said...

FYI- No commentary, just something that was news to me. -Walt

Gonzales's Rationale on Phone Data Disputed

By Walter Pincus
Washington Post Staff Writer
Thursday, May 25, 2006; A08

Civil liberties lawyers yesterday questioned the legal basis that Attorney General Alberto R. Gonzales used Tuesday to justify the constitutionality of collecting domestic telephone records as part of the Bush administration's anti-terrorism program.

While not confirming a USA Today report May 11 saying the National Security Agency has been collecting phone-call records of millions of Americans, Gonzales said such an activity would not require a court warrant under a 1979 Supreme Court ruling because it involved obtaining "business records." Under the 27-year-old court ruling in Smith v. Maryland , "those kinds of records do not enjoy Fourth Amendment protection," Gonzales said. "There is no reasonable expectation of privacy in those kinds of records," he added.

Noting that Congress in 1986 passed the Electronic Communications Privacy Act in reaction to the Smith v. Maryland ruling to require court orders before turning over call records to the government, G. Jack King Jr. of the National Association of Criminal Defense Lawyers said Gonzales is correct in saying "the administration isn't violating the Fourth Amendment" but "he's failing to acknowledge that it is breaking" the 1986 law, which requires a court order "with a few very narrow exceptions."

Kate Martin, director of the Center for National Security Studies, said, "The government is bound by the laws Congress passes, and when the attorney general doesn't even mention them, it is symptomatic of the government's profound disrespect for the rule of law."

Gonzales, in addition to mentioning the Supreme Court case on Tuesday, said there "is a statutory right of privacy" but "with respect to business records there are a multiple number of ways that the government can have access to that information," including issuing national security letters, a type of administrative subpoena.

King noted that the USA Patriot Act modified the law to permit counterintelligence access "to telephone toll and transactional records" to allow specific targeting of "a person or entity" by the FBI if the director certifies in writing to the service provider that a customer's information is relevant to an "authorized" terrorism or counterintelligence investigation.

Former deputy attorney general George J. Terwilliger III, a partner in White & Case LLP, said yesterday that he does not believe the 1986 law applies if phone numbers called are being collected "wholesale" without subscriber names or other identifiers.

While saying he does not know what the NSA program involves, Terwilliger said it appears a database of telephone records is being built so it can be queried in real time after a call between the United States and abroad related to a terrorist's phone is made to see what other numbers that U.S. phone had been used to call in the past.

The Iconic Midwesterner said...

Yeah the statuatory status is murkier, but it is clear there is no constitutional right being violated (as was repeatedly avowed when this story first came out). I believe the law only affects federal agencies as well. State and local officials can do as they please (is line with any local laws of course.) It seems odd that the local police can grab these types of records, tied to individuals names and address without a warrant to catch a fence moving stolen property, but heaven forbid we aggregate data in counter terrorism operations.

I just dont see how anyone could feel threatened by this. Other things maybe, but not this.