Wanted: A Better Media

Yes, its from Walter Pincus, who is usually better than this, but this nonsense is too typical these days.

As Think Progress notes, Attorney General Gonzales claimed that the illegal domestic data mining described by USA Today was perfectly legal. The Washington Post, in turn, dutifully reported his claim--without rebuttal of why his claims were irrelevant to the issue--that the illegal domestic data mining is actually constitutional. The Post in its failure of skepticism (or the most basic level of homework) failed to report that the question of constitutionalisty is totally different from the question of legality.

That is, unbelievable as it may be, gathering all of the telephone and internet records of every American may arguably pass constitutional muster, in that it potentially does not violate the Fourth Amendment if an analogy to Smith v. Maryland works. In Smith, a 1979 Supreme Court decision concerning "pen registers," which are devices that record telephone numbers dialed by a suspect, the Court held that there was not a reasonable expectation of privacy in the telephone numbers that you dial.

However, that is not the end of the story, and Gonzalez (who is the Attorney General after all) surely knows that. There is no excuse for the media to still not know that, over a week after the USA Today story broke.

The whole story is that in response to that Supreme Court decision, Congress “acted to protect the privacy of such information” and “required the government to obtain a court order for pen registers and trap and trace devices, 18 USC 3121 et seq., and a court order or subpoena for records of past telephone calls.”

This is very easy to understand: in 1978 and 1986, Congress wrote and the President signed laws that made illegal what would otherwise be constitutional.

The Washington Post, rather than mentioning that laws might contradict the Attorney General's theory, reports:

Attorney General Alberto R. Gonzales said yesterday that the government can obtain domestic telephone records without court approval under a 1979 Supreme Court ruling that authorized the collection of business records…Gonzales told reporters that, under the Smith v. Maryland ruling, “those kinds of records do not enjoy Fourth Amendment protection. There is no reasonable expectation of privacy in those kinds of records.”

And that's that, apparently.

Again, no. (Sadly, No! is already trademarked) As Think Progress explains:

This is a classic case of misdirection. The issue isn’t simply whether or not collecting domestic phone records is constitutional. The issue is whether it’s legal. If the USA Today story is accurate, the NSA program appears to be illegal, not because it violates the fourth amendment, but because it violates two statutes.

Significantly, Smith v. Maryland considers activities that occurred in 1976. Both of the statutes that prohibit the activity described by USA Today were enacted after that date:

1. The Stored Commuications Act of 1986 (SCA). The law prohibits the telecommunications companies from handing over telephone records to the government without a court order. (18 USC 2702-3.) There are several exceptions, none of which apply in this circumstance. The SCA was enacted in response to Smith v. Maryland.

2. The Foreign Intelligence Surveillance Act of 1978 (FISA). The law allows this kind of domestic surveillance in two circumstances: 1) the government obtains a warrant from the Foreign Intelligence Surveillance Court, or 2) the government obtains a certification from the Attorney General that the program is legal under FISA.