I’ve been watching the media run around with their hair on fire screaming that the Obama Administration has subverted the Fourth Amendment: First with the subpoenas to FoxNews and the NYTimes, and then with the revelation the NSA is sweeping up all the numbers dialed on Verizon. Hardly anybody writing about this has any sense of history or knowledge of the law. I’ve been saying this all along: This is perfectly legal under the Fourth Amendment. It is distasteful as hell, but it violates no law. (WaPo: Obama defends NSA’s sweeping surveillance: "President Obama says 'nobody is listening to your telephone calls' and that Congress has authorized the programs.")
The Bush Administration had plans for all this to begin with, but then quickly came the opportunity for the USA PATRIOT Act. To paraphrase Justice Scalia during the Voting Rights Act argument, It’s against a Congressman's interest because of a name like that? “Even the name of it is wonderful: The [Patriot] Act. Who is going to vote against that in the future?”.
The Patriot Act became law without any critical thought, and it made it carte blanche for government to gather information about us. Couple this with the information technology available over the last decade and the ability to store Brontobytes of data, and that we see now was inevitable. I'm not the slightest bit surprised. Nobody keeping up is surprised.
All this data collection is perfectly legal under pre-Patriot Act law and compounded by it. In 1976, the Supreme Court held in Miller v. United States that it did not violate the Fourth Amendment for the government to gather information from bank records of a depositor under investigation. In 1979, the Court held in Smith v. Maryland that it did not violate the Fourth Amendment for the government to put a pen register on a telephone to record only the numbers being dialed because the telephone call wasn’t recorded. That was, after all, all technology allowed at the time.
Fast forward 34 years to today, and it has been widely known that the NSA has the ability to gather all the information off satellites without a warrant. (1998's movie “Enemy of the State” was not off the mark.)
So, the subpoenas for phone records of journalists: perfectly legal. Congress has not seen fit to ever adopt a journalist shield law to help implement the First Amendment. They don't have any standing to complain.
If you don't like the privacy implications, Sen. Paul has proposed legislation to change it. First is the “Fourth Amendment Preservation and Protection Act of 2013,” S. 1037 that would legislatively overrule Smith and Miller. Second is “A bill to stop the National Security Agency from spying on citizens of the United States,” S. 1121.
Then there is the question of legislation to revamp the hopelessly outmoded Stored Communications Act. The “Email Privacy Act,” H.R. 1852 is a start but never good enough.
What is Congress doing? Essentially nothing. Proposing a law with great fanfare is meaningless if it goes nowhere. I wrote my Senators about email privacy, so I figure they don't care since they never wrote back. So, I haven't bothered to write to them about Sen. Paul's bills. Congress is too mired is gamesmanship to do their damned jobs of actually legislating in the public interest.
"We the people" are the boiling frog, and the water has started to boil. We started giving up our liberties long before the Bush and Ashcroft sold the Patriot Act, and that was just raw exploitation of fear over any sense of history. "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." Ben Franklin, 1759 (or 1775 depending on the source).
Today's computers and software make unlimited information gathering possible, and the information is there, waiting to be mined. Under law, all this is, quite regretfully, legal. There is infinite personal information about each of us out there, just waiting to be gathered up. Smith and Miller have outlived their usefulness, and they need to be legislatively overruled because this is just the first real public disclosure of what's been going on for at least a decade.
Now, what are we going to do about it? Complain, but sit on our hands and do nothing? (The "collective national shrug"?) Write to your Senators so Sen. Paul's bill will get to committee for a discussion. The committee hearings, I'm sure, will be entertaining. And, to Sens. Pryor and Boozman: Do something. What are you there for? Stop just taking up space.
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