[Infowarrior] - DOJ: There's No Expectation Of Privacy In Your Phone Records Because People Don't Like Terrorists

[Richard Forno]

DOJ: There's No Expectation Of Privacy In Your Phone Records Because People Don't Like Terrorists

http://www.techdirt.com/articles/20130809/16320324131/doj-theres-no-expectation-privacy-your-phone-records-because-people-dont-like-terrorists.shtml

Following our post on the NSA's document defending its surveillance programs, let's look more closely at the Justice Department's "white paper" explaining the legal rationale for scooping up all of the metadata on every phone call under Section 215 of the Patriot Act, also known as the "business records" or "tangible things" section. This document just focuses on that one program, rather than the many other programs, and within its 23 pages there are so many ridiculous things. I'm sure we'll come back to many of them in future posts. After going through it a few times, it seems abundantly clear that this was a rush job by the administration to defend this particular program, without realizing just how ridiculous many of its claims are. As Julian Sanchez has noted, the arguments made in this document appear to contradict the DOJ's actions in dozens of ways, and basically invalidates a ton of previous arguments concerning other surveillance programs. And, worse, it more or less opens the door for massive surveillance on a variety of other things. Again from Sanchez, the argument in this paper could easily apply to having a local prosecutor subpoena all city phone records looking for drug dealing. Because safety! 

Let's pick out just a few of the more inane arguments, starting with that first one highlighted above. As we've seen in the past, the DOJ makes a long and incredibly misleading argument about why your phone records aren't private under Smith v. Maryland, but then it goes further to argue that even if a court were to say that Smith v. Maryland and the third party doctrine didn't apply here, that's okay, because the searches are "reasonable" because people want to be protected from terrorists.

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And this is the other shocker. To translate, this is saying "because Congress did not explicitly tell us to stop collecting all data, we take that as implicit permission to collect all data." As for that claim that this information was "made available to all Members of Congress," that too is misleading, evidence by approximately half of Congress admitting they had no clue about this at all. Also, "made available" is incredibly different from "clearly informed and explained to Congress what we were doing." Basically, they gave this info to the Intelligence Committee, who then sought to obfuscate it and play down any concerns. While others in Congress could ask to see the details (though, sometimes those requests are denied), they're often not allowed to bring in staff who might understand the details, nor are they allowed to make copies or take notes. These members are shown documents that may not be clear and which they might not understand. That's not fully informing them. And the resulting decision not to directly block that program is laughable because many in Congress flat out lied about these programs (or were totally misinformed). To take that as "approval" of these programs takes incredible hubris.

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Honestly, this document is a mess. It's clearly a whitewash job done to cover up the fact that this program is a massive intrusion on privacy and almost certainly both illegal and unconstitutional. Coming up with after-the-fact legal justifications for it just shows how desperate the administration is getting.

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