 |
|
« | Main | An Irony in the Ayaan Hirsi Ali Case? » May 16, 2006
More on the NSA Program and The Slippery Slope
Posted by Dorkafork First of all, let's be clear on what this new program is. It is essentially a pen register. A pen register records all numbers dialed from a phone, though this definition now also covers other means of communication that work on the same principle (e.g. a device that monitors IP addresses). Smith v. Maryland (1979) held that warrants were not necessary for pen registers*, but Congress changed US Code to require a court order (also required under FISA). To obtain this order, all the attorney general has to do is show "relevance" to an ongoing investigation, a lower standard than "probable cause". (I would assume the AG would also have to have a more specific target of the pen register than "everybody", but that's just me.) But that doesn't matter anymore, and not just because Congress is now irrelevant, and the President can do whatever he pleases, US Code be damned. Luckily for the Bush administration, their purported actions in this case are not technically illegal, since they asked the telecoms to do the illegal work for them. Title 18, ยง 2702 describes who can be provided non-content information. It can only be provided to governmental entities "an emergency involving immediate danger of death or serious physical injury". This is why lawsuits are pending against the phone companies. So, the Bush administration is technically off the hook. But what they are accused of doing would normally require a court order. And apparently I am some sort of crazy person for questioning the propriety of this program. A veritable "Doubting Helen Thomas" with regards to the wisdom of letting * Here's where I get into the slippery slope: The "Slippery Slope" argument is somewhat controversial, and is considered by some to be a fallacious argument, which is understandable considering how often and poorly it is made. Speaking of which, *cough*cough*ahem* here's an example of that: You know what else is a slippery slope? Giving cops guns. Also a slippery slope? Search warrants. Also a slippery slope? Fingerprinting. Also a slippery slope? Terrorist watch lists. Left unsaid is what these are slippery slopes to. "Giving cops guns"? What would that lead to, giving them bigger guns, or more "military" gear like body armor or armored vehicles? Inconceivable. Fingerprinting? They may just do the same thing for DNA, you never know. Or maybe national ID cards with biometric technology for "digital fingerprints". (Now where did I hear something like that recently?) Search warrants? That's an odd choice. Usually slippery slope arguments involve allowing government to do things instead of adding restrictions on their actions. This is not to say I think SWAT teams or DNA testing are bad, but slippery slopes can lead to unfortunate results. I recommend Eugene Volokh's in-depth analysis of the mechanisms of the Slippery Slope. In particular, th "is-ought fallacy" he describes seems to be prevalent amond defenders of the program ("But you can already get phone logs"). As far as where the slippery slope leads to, I think mining Web surfing is inevitable, if it isn't being done already. The potential of abuse for programs of that type are bad enough already. Nor do I think the "content" restriction in place by Smith v. Maryland will hold up. It's only a matter of time before software starts filtering through the content of the phone calls of every person in America. If it isn't already going on. If it comes to light, though, you can be sure Tony Snow will be up there, saying, "It's within the parameters of the loopholes of the law. Perfectly legalish. There's seems to be a notion that since we've denied that this particular program doesn't monitor the content of calls doesn't mean there wasn't a program that did monitor the content of calls. Completely different programs. Next you're going to want to know about the program to put cameras in everyone's living rooms. You know who else wants to know about our putting cameras in everyone's living rooms? Al Qaeda." Related: Verison and BellSouth deny providing the NSA with logs. Also, you may not need to use fancy algorithms to discover terrorists. You can just look around on MySpace. Posted by Dorkafork at May 16, 2006 07:38 PM | TrackBack (1) Trackback PingsTrackBack URL for this entry: CommentsPosted by: dorkafork at May 16, 2006 11:08 PM Oh, the smackdown coming your way will be brutal. But first I must rest. Posted by: Bill from INDC at May 16, 2006 11:16 PM Bill! Take a page from the recent blogfluffle at Polipundit and discharge him!!@! BAN HIM!!! STIFLE THE DECENT!!!!1 -but only if this issue touches you greatly. -and not in that way. Posted by: Hoodlumman at May 17, 2006 01:57 PM You're not a crazy person, your questions are reasonable, but there are reasonable answers to them. The Government's task is not to investigate suspected telephone numbers. If the Government had hard targets, they'd get a warrant and tap the line. Instead, the task is to find a needle in a haystack, to identify, merely from patterns of calls, a handful of suspected phones out of hundreds of millions. This is called "signals intelligence" and the Allies used a variation of it against Axis radio signals during WWII. What type of court order would you suggest the Governement get for this purpose? What standard would the court use? The problem is in trying to apply the concepts of criminal law investigations to counter-intelligence. As Judge Posner recently pointed out, that doesn't work. No crime has yet been committed, so there is no probable cause or reasonable suspicion to investigate anybody. What the government is looking for are sleeper cells, or lone agents, who haven't done anything yet. The question is whether you think the government should be looking for such agents or not. If you think we should, then you have to be prepared to let the government use broad investigative tools. If not, if you think that such investigations are an unbearable threat to civil liberties, then fine, just say that the government should wait until a crime has been committted and then it can investigate it. That's what the FBI would prefer in any event. I agree with Posner that the solution is to have an equivalent to Britain's MI5 - a domestic counter-intelligence agency with essentially unlimited investigative powers, but no power of arrest or detention. Posted by: DBL at May 17, 2006 02:10 PM But that doesn't matter anymore, and not just because Congress is now irrelevant, and the President can do whatever he pleases, US Code be damned Oh please, I am so tired of these histrionics. There are still considerable limits on the Preisident's power, such as those outlined in Youngstown when Harry Truman tried to call the seizure of a steel mill a wartime power. The only area in which the President's power is expanded over peacetime is the area of his direct warfighting powers. The NSA is part of those powers, because its foreign intel being gathered incident to military action against a foreign threat. Posted by: TallDave at May 17, 2006 04:22 PM Ooops, only Youngstown was supposed to be italicized. I blame Patrick Kennedy's car for jogging my elbow and screwing up my html. Posted by: TallDave at May 17, 2006 04:23 PM It's only a matter of time before software starts filtering through the content of the phone calls of every person in America. You're a bit late to that party; it's called ECHELEON and was held constitutional iirc. Posted by: TallDave at May 17, 2006 04:38 PM ...it's called ECHELEON and was held constitutional iirc. I would be surprised if it was held constitutional, if only because the US will not confirm or deny the existence of the program, which makes judicial review difficult. Besides that, ECHELON most likely is constitutional. It sweeps up every communication outside the US. Pretty uncontroversial. The main constitutional concern was the idea that in order for the US to spy on its own citizens, all they had to do was ask the UK under the US/UK agreement to send over everything the UK sweeps up in the US. (I think those concerns were probably overblown, because that would make the program described in the USAToday story, if true, somewhat unnecessary.) This is one of the reasons I thought was supportive of the idea that the original program might have been legal. If ECHELON is picking up all calls going in and out of, say, Iran, it is naturally going to sweep up calls from the US to Iran and vice versa, and no sort of court order should be necessary. But none of that matters now that the Executive branch is conducting broad-based spying on Americans. This is traffic analysis, a form of, as DBL pointed out, signals intelligence or SIGINT, being performed on as many Americans as possible without any real oversight. According to statute, the government can only do this with a court order that, IIRC, doesn't even need a judge's signature, or probable cause, just "relevance". Posted by: dorkafork at May 17, 2006 09:17 PM I thought I remembered hearing something about a SCOTUS case on ECHELON, but Google isn't turning it up. But it's been public knowledge since the Aussies spilled the beans because allegedly Boeing was getting Airbus technical or bid info from ECHELON -- at least, that's the version I've heard.
US intelligence agencies are generally prohibited from spying on people inside the US, and other Western countries' intelligence services generally faced similar restrictions within their own countries. There are allegations, however, that ECHELON and the UKUSA alliance were used to circumvent these restrictions by, for example, having the UK facilities spy on people inside the US and the US facilites spy on people in the UK, with the agencies exchanging data (perhaps even automatically through the ECHELON system without human intervention). http://en.wikipedia.org/wiki/ECHELON Posted by: TallDave at May 17, 2006 10:42 PM ionolsen16 Hello Jane, great site!www_4_2 Posted by: marvilkg at October 13, 2006 07:24 AM ionolsen16 Great website! Bookmarked! I am impressed at your work!www_4_2 Posted by: karel at October 13, 2006 11:39 AM Posted by: buy viagra at November 17, 2006 06:44 PM 5797a4e40217 Nice site free anime porn free anime porn Posted by: free anime porn at November 29, 2006 05:33 PM ceunpx uqepj tegowh fquvm fowavz lcge ojizarthk Posted by: hlcamtxur xlczhyn at March 9, 2007 08:57 AM ceunpx uqepj tegowh fquvm fowavz lcge ojizarthk Posted by: hlcamtxur xlczhyn at March 9, 2007 08:58 AM jfwych frwvygpsm mjztxk knzhqclse rgspjkh prlxvfgoi zanx Posted by: nrhcovazm sloqyhej at March 9, 2007 09:09 AM Nice resource, very interesting reading. http://s1u.net/inob Posted by: Cellphone at April 14, 2007 02:43 PM Singer George Michael lends the piano on which John Lennon wrote Imagine to an anti-war exhibition... Posted by: Clifford Shepard at April 16, 2007 07:56 AM Singer George Michael lends the piano on which John Lennon wrote Imagine to an anti-war exhibition... Posted by: Clifford Shepard at April 16, 2007 07:57 AM Singer George Michael lends the piano on which John Lennon wrote Imagine to an anti-war exhibition... Posted by: Clifford Shepard at April 16, 2007 07:58 AM Singer George Michael lends the piano on which John Lennon wrote Imagine to an anti-war exhibition... Posted by: Andre Banuelos at April 17, 2007 03:24 AM Singer George Michael lends the piano on which John Lennon wrote Imagine to an anti-war exhibition... Posted by: Andre Banuelos at April 17, 2007 03:26 AM |
Feed Me, Seymour
bill *at* indcjournal *dot* com
Support Our Advertisers
Search
Archives
June 2008May 2008 April 2008 February 2008 January 2008 December 2007 November 2007 October 2007 September 2007 August 2007 July 2007 June 2007 May 2007 April 2007 March 2007 February 2007 January 2007 December 2006 November 2006 October 2006 September 2006 August 2006 July 2006 June 2006 May 2006 April 2006 March 2006 February 2006 January 2006 December 2005 November 2005 October 2005 September 2005 August 2005 July 2005 June 2005 May 2005 April 2005 March 2005 February 2005 January 2005 December 2004 November 2004 October 2004 September 2004 August 2004 July 2004 June 2004 May 2004 April 2004 March 2004 February 2004 January 2004
Extras
PDARSD Atom RSS 2.0 RSS 1.0
Credits
Our Blogroll
|
