HAGGLING OVER THE PRICE, PART 2

It looks like someone in the media is going to be jailed soon - for reporting a "lawful activity":



USA Today: NSA building massive database of phone records
Thursday, May 11, 2006; Posted: 11:13 a.m. EDT (15:13 GMT)

WASHINGTON (AP) -- Congressional Democrats demanded answers from the Bush administration Thursday about a report that the government secretly collected records of ordinary Americans' phone calls to build a database of every call made within the country.
"It is our government, it's not one party's government. It's America's government. Those entrusted with great power have a duty to answer to Americans what they are doing," said Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee.

AT&T, Verizon and BellSouth telephone companies began turning over records of tens of millions of their customers' phone calls to the National Security Agency program shortly after the September 11, 2001, terrorist attacks, USA Today reported, citing anonymous sources it said had direct knowledge of the arrangement.

The telephone companies on Thursday declined to comment on national security matters, and would say only that they are assisting government agencies in accordance with the law.
"We have been in full compliance with the law (what law would that be?) and we are committed to our customers' privacy (what privacy would that be? The Supreme Court said that we had no reasonable expectation of privacy in the #'s we call - see the pen register cases - but this was before the era of cell phones, Blackberries, phones as computers, computers as phones, and so on. The Court also said there was no reasonable expectation of privacy in the context of cases where criminal activity was suspected. Here, no criminal activity is suspected. The government's building of its database is a fishing expedition. That it hasn't listened to the calls is incidental. It can, as far as it is concerned - once it has "established" the principle that it can invade your privacy by, without any reason at all - oh, excuse me, by claiming you are a terrorist, tracking your calls to find out who you talk to, where they are located, how long the call is, where it is placed from and to, etc., one can picture a government agent then saying, "Mind if I listen in, too?," only to then be told, "What kind of dupe do you think I am," and then to respond, "We've already established that; we're just haggling over the price/degree of your dupeitude)," said Bob Varettoni, a spokesman for Verizon.

The White House defended its overall eavesdropping program and said no domestic surveillance is conducted without court approval. (This statement has already proven to be false). The intelligence activities undertaken by the United States government are lawful, necessary and required to protect Americans from terrorist attacks," (monitoring the calls of every individual in America is necessary to prevent al-Qaeda from attacking us? How? If such monitoring is necssary, what liberty-depriving steps are NOT "necessary?") said Dana Perino, the deputy White House press secretary, who added that appropriate members of Congress have been briefed on intelligence activities (i.e. they have been told what the White House wanted to tell them, when they wanted to tell them it, and no more).

On Capitol Hill, Sen. Arlen Specter, R-Pennsylvania, the chairman of the Senate Judiciary Committee, said he would call the phone companies to appear before the panel "to find out exactly what is going on." (Yeah, even if Senator Mealy Mouth did this, he would obtain no useful information, because the phone companies have already kow-towed and fear punishment if they reveal the terms of their "lawful" activities).

Before the latest report, Specter said the committee "has been unable to perform our constitutional oversight responsibilities to determine the constitutionality of the program."
Leahy sounded incredulous about the latest report and railed against what he called a lack of congressional oversight. He argued that the media was doing the job of Congress.

"Are you telling me that tens of millions of Americans are involved with al Qaeda?" Leahy asked. "These are tens of millions of Americans who are not suspected of anything ... Where does it stop?" (Wow - he didn't sound pistol-whipped there for a moment...)

The Democrat, who at one point held up a copy of the newspaper, added: "Somebody ought to tell the truth and answer questions. They haven't. The press has done our work for us and we should be ashamed. Shame on us for being so far behind and being so willing to rubber stamp anything this administration does. We ought to fold our tents." Yeah, maybe you Democrats should unless you stand up for what's right more. You're so far ahead in the polls now and yet you're still so afraid to challenge. What will it take?

Sen. Dick Durbin, D-Illinois, said bringing the telephone companies before the Judiciary Committee is an important step.
"We need more. We need to take this seriously, more seriously than some other matters that might come before the committee because our privacy as American citizens is at stake," Durbin said.

The program does not involve listening to or taping the calls. Instead it documents who talks to whom in personal and business calls, whether local or long distance, by tracking which numbers are called, the newspaper said. (Understand that doing this as part of a criminal investigation, where an individual whose phone is monitored, is permissible - phone companies are required to provide pen registers as part of a criminal investigation; a dragnet operation such as this, however, where there is no suspicion of criminal activity, I would argue, presents a harder question. Here, the companies are being forced to provide the information for the sake of providing it, in possible violation of their contracts with their customers, without having given their customers advance notice. If the contracts suggested that the numbers would not be divulged to outside sources, then one could argue that the customer had a "reasonable expectation of privacy" vis a vis the government, and hence, a search was committed, and a warrant was required. Maybe I'm wrong. Maybe this is wishful thinking. At any rate, I would have liked to see the companies challenge the law, which would have forced the government to explain why it needed the #'s. If the court then determined that what the government was doing constituted a search, the government might have been forced to show that the search fit within the "special needs" exemption to the warrant requirement. I think they would have failed, since the government's best argument along these lines would have been, "we need these #'s to detect criminal wrongdoing. The fact that the wrongdoing may have been "terrorist" wrongdoing does not change this. The overbroad nature of the search shows that at best, that it was still ordinary - if "ordinary terrorist" - wrongdoing. Finally, I think someone should challenge this, and that the case should be decided on the merits, simply so that a court can rule upon the issue of whether we have a reasonable expectation of privacy in the kind of information that is being mined, and if we do not, why don't we?)

The NSA and the Office of National Intelligence Director did not immediately respond to requests for comment.

NSA is the same spy agency that conducts the controversial domestic eavesdropping program that has been acknowledged by President Bush. The president said last year that he authorized the NSA to listen, without warrants, to international phone calls involving Americans suspected of terrorist links