Spy Tools In Need Of a Law

[cal04]

(snip)
The NSA program poses the most difficult questions about privacy, intelligence and the law. The first essential task is to strip away some of the legal misinformation, starting with constitutional issues. The Supreme Court for decades has accorded a lesser privacy right to calling-record data -- which the NSA likes to call "meta-data" -- than to the underlying content. The court held in a 1979 case, Smith v. Maryland , that "it is too much to believe" that telephone users expect the numbers they dial will be secret, when those numbers appear in bills, phone logs and other business records.

Though Congress in the 1980s legislated greater privacy rights for calling data than the court had found in the Constitution, it narrowed those rights in amendments to the Foreign Intelligence Surveillance Act, which allowed FISA warrants for searching call records if the information was "relevant to an ongoing investigation" of terrorism. Details about the numbers being examined had to be provided only "if known."

The breadth for surveillance power that already exists under FISA has led Rep. Jane Harman (D-Calif.) and others to argue that FISA itself can accommodate the NSA program without further amendments. She introduced legislation last week that would provide additional resources for the administration so that it can comply with FISA. There's also an argument that the administration could submit a general blanket request for data-mining authority, which House Democratic leader Nancy Pelosi described in January as "the mother of all FISAs."

These would be easy fixes, but they would duck the basic issue: Is it legal for the NSA to obtain and keep the nation's phone records to identify who is getting calls from terrorists? Do Americans support that trade-off of privacy for security? It should be obvious now, as the temporary anti-terrorist structure created after Sept. 11 begins to crumble, that the only stable framework going forward will be one that brings these programs clearly and firmly under the rule of law.

http://www.washingtonpost.com/wp-dyn/content/article/2006/05/16/AR2006051601369.html

[struggle4progress]

1. Collaborators.