Data mining may be legal — but is still repugnant

One of the predictable reactions to the news that the NSA is data mining tens of millions of domestic telephone users that it may actually be legal. Or not as illegal as one might think.

(See legal discussions here, here, and here.)

Bottom line, there may be actual legal wiggle room for both the Bush administration and the telecomm companies that forked over your account information:

One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records — and even the stored content of calls and e-mails — because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request.

Get it? It’s in the fine print! It’s your own fault!

Even more predictably, some right-wing bloggers are falling over themselves in decrying the “liberal” reaction to the news. Take John McIntyre of Real Clear Politics who says,

Show me the real alive Jane and Joe Americans who have had their liberties violated in some grotesque manner by the Patriot Act.

So? What’s all the fuss about?

Honestly, I don’t care if the program is technically legal. It’s wrong.

First the program was created without any oversight. Congress had no say, the judiciary has no right of review. That means the program could be used wrongly. While the program may indeed be used solely to catch terrorists, it creates an apparatus to monitor every citizens for any type of behavior the government may someday dislike. Like dissent, for example.

Next, the program was created without any debate. Shouldn’t we as a nation decide the limits of government intrusion? Certainly the program should have been debated in open sessions of Congress. That the administration proceeded in secret, without a mandate, and based on the mysterious rights of an all-powerful “wartime” executive should give one pause. It makes me think that the President and his henchmen knew the American people wouldn’t want to pursue such a project.

Also, while righty McIntyre demands to know who’s been affected by the program and in what way, we simply don’t know. Might the program already “marked” a number of people? Might those people have lost out on government jobs, say, or grants they might have otherwise gotten? Does the program isolate otherwise unsuspected Americans for closer surveillance by federal agencies? Every thing is secret, so we don’t know. I’d also suggest to McIntyre that, by the time that everyday Americans do feel the pinch of the program, it’ll be too late.

Bottom line: I don’t care if the program was legal in a technical sense. It’s inefficient, it’s expensive, and it’s morally repugnant.

Update: As soon as posted this, a report came over the line from USA Today on the legality of the data-mining project:

The U.S. government's secret collection of Americans' phone records may not breach the Fourth Amendment's privacy guarantee, legal analysts said Thursday, but it could violate federal surveillance and telecommunication laws.

Seems like it's the old FISA court thing we saw in the wiretapping scandal. Gee, I wonder how Bush will handle this one? And I wonder if Congress will roll over for him again?


  1. Honestly, Jay. The President is the President, you know — the Decider. He’s authorized by things like the Constitituion to do stuff and…yeah.

  2. Mark T

    Bush’s framework for debating illegal wiretaps and phone record database: “We’re protecting you from terrorists.” The question is why he evades legal restraints, why he doesn’t get warrants, why he doesnt’ submit his actions to congressional oversight. I suspect he’s not so much interested in terrists as ordinary Americans – peace marchers, independent journalists, lawyers and activists … the old Nixon thing.

    To get a warrant is easy. He knows that. There’s a reason why he’s breaking the law and being so secretive.




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