Would N.S.A. Data Mining Have Been Able To Stop 9/11?
.Many have tried to justify N.S.A. data mining on the theory that it could have prevented 9/11. Is that true?
In his opinion striking down a challenge to the National Security Agency’s datamining programs, New York based Federal Court Judge William Pauley reaches back to the months before the September 11th attacks to spin a story of what the intelligence world was supposedly like in the dark days before Congress and President George W. Bush came together to give the N.S.A. more power to collect data on domestic and international communications than it had ever had before:
Prior to the September 11th attacks, the [NSA] intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the [FBI] of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.
This is not an unfamiliar argument, of course. It’s one that political leaders have made for years now to justify many aspects of the powers granted to the N.S.A. and other agencies after September 11th, and one that has been trotted out several times in the months since Edward Snowden made public the information that he had obtained about what the agency was doing with the data that it was collecting and the new powers that had been granted to it. It’s a tempting argument to believe, of course. The idea that, but for more information and the ability to connect the dots, we might have been able to prevent the greatest national tragedy since the attack on Pearl Harbor is very appealing. However, as Jutin Elliot points out at Pro Publica in an article that was posted back in June during the height of the Snowden controversy, there’s little actual evidence that it’s true:
It is impossible to know for certain whether screening phone records would have stopped the attacks — the program didn’t exist at the time. It’s also not clear whether the program would have given the NSA abilities it didn’t already possess with respect to the case. Details of the current program and as well as NSA’s role in intelligence gathering around the 9/11 plots remain secret.
But one thing we do know: Those making the argument have ignored a key aspect of historical record.
U.S. intelligence agencies knew the identity of the hijacker in question, Saudi national Khalid al Mihdhar, long before 9/11 and had the ability find him, but they failed to do so.
“There were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar,” says former Senator Bob Graham, the Florida Democrat who extensively investigated 9/11 as chairman of the Senate’s intelligence committee.
These missed opportunities are described in detail in the joint congressional reportproduced by Graham and his colleagues as well as in the 9/11 Commission report.
Mihdhar is at the center of the well-known story of the failure of information sharing between the CIA and FBI and other agencies.
Indeed, the Obama administration’s invocation of the Mihdhar case echoes a nearly identical argument made by the Bush administration eight years ago when it defended the NSA’s warrantless wiretapping program.
Elliot then goes on to describe the extent to which U.S. intelligence and law enforcement had been tracing Midhar’s movements around the world and even in communications, even though it was apparent at many points that their analysts were completely unaware of who it was Midhar was communication, which in several cases turned out to be people who ended up being participants in the 9/11 conspiracy:
Intelligence historian Matthew Aid, who wrote the 2009 NSA history Secret Sentry, says that the agency would have had both the technical ability and legal authority to determine the San Diego number that Mihdhar was calling from.
“Back in 2001 NSA was routinely tracking the identity of both sides of a telephone call,” he told ProPublica.
The NSA did not respond to a request for comment. The FBI stood by Mueller’s argument but declined to further explain how the metadata program would have come into play before 9/11.
There’s another wrinkle in the Mihdhar case: In the years after 9/11, media reports also suggested that there were multiple calls that went in the other direction: from the house in Yemen to Mihdhar in San Diego. But the NSA apparently also failed to track where those calls were going.
In 2005, the Los Angeles Times quoted unnamed officials saying the NSA had well-established legal authority before 9/11 to track calls made from the Yemen number to the U.S. In that more targeted scenario, a metadata program vacumming the phone records of all Americans would appear to be unnecessary.
That story followed President Bush’s defense of the NSA warrantless wiretapping program, which had just been revealed by the New York Times.
“We didn’t know they were here, until it was too late,” Bush said in a December 2005 live radio address from the White House.
It’s not clear how the wiretapping program would have come into play in the Mihdhar case. The program at issue in 2005 involved getting the actual content of communications, which the NSA had already been doing in the Mihdhar case.
Finally, in an update to his post written after Judge Pauley’s decision, Elliot writes this:
As his source, the judge writes in a footnote, “See generally, The 9/11 Commission Report.” In fact, the 9/11 Commission report does not detail the NSA’s intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, “We could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications.”
To this day, some details related to the incident and the NSA’s eavesdropping have never been aired publicly. And some experts told us that even before 9/11 — and before the creation of the metadata surveillance program — the NSA did have the ability to track the origins of the phone calls, but simply failed to do so.
A second look at several post 9/11 incidents in which law enforcement managed to stop terror plots well before they became dangerous also reveals that there’s little evidence to support the idea that the N.S.A. metadata program played a crucial role in stopping an act of terror, as Judge Richard Leon notes in his opinion finding the metadata collection program unconstitutional:
None of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency. In the first example, the FBI learned of a terrorist plot still “in its early stages” and investigated that plot before turning to the metadata “to ensure that all potential connections were identified.” Assistant [FBI] Director [Robert] Holley does not say that the metadata revealed any new information-much less time-sensitive information that had not already come to light in the investigation up to that point. In the second example, it appears that the metadata analysis was used only after the terrorist was arrested “to establish [his] foreign ties and put them in context with his U.S. based planning efforts.” And in the third, the metadata analysis “revealed a previously unknown number for [a] co-conspirator…and corroborated his connection to [the target of the investigation] as well as to other U.S.-based extremists.” Again, there is no indication that these revelations were immediately useful or that they prevented an impending attack.
(…)
The Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three “recent episodes” cited by the Government that supposedly “illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack” involved any apparent urgency….
Given the limited record before me at this point in the litigation—most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics—I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.
Given that the N.S.A.programs at issue have been in place for the better part of a decade now, one would assume that the Federal Government would be able to come up with an example or two showing how this supposedly immensely necessary program had actually done anything productive in preventing an attack or helping to track down a terrorist, then the government would be able to show some evidence or it. Instead, all they seem to be able to do is come up with hypothetical like the one put forward by Judge Pauley that don’t actually prove anything, and which end up being contradicted by the evidence on record. The fact that they cannot, and that in the specific case of the pre-9/11 argument that Judge Pauley makes, that the powers that the N.S.A. had prior to 9/11 seemed to be sufficient to find a lot of information about people at the center of the conspiracy. The problem was that the N.S.A. wasn’t able to properly interpret the data that it already had. That’s not a failure attributable to the lack of sufficient intelligence gathering power, it’s a failure attributable to human error or, perhaps, the simple fact that when there is so much information available the odds of finding the proverbial needle in the haystack. To the extent that last part was playing a role in what happened in the months and weeks prior to 9/11, then the logic of giving the agency the ability to gather even more information seems question at best. All that does is make the haystack bigger, and the needle harder to find.
Jacob Sullum at Reason notes correctly that, in the end, whether the hypothetical that Judge Pauley put forward is plausible or not is irrelevant to the basis for his opinion. In the end, Pauley ruled that you have no Fourth Amendment rights at all in your telephone or Internet metadata because of the third-party rule established in Smith v. Maryland. As a matter of law, of course, this is true, but I’d suggest that if the government cannot come up with a plausible reason why it shouldn’t have to obtain a warrant for the massive amounts of data it is collecting, then the justification for allowing agencies like the N.S.A. to violate a zone of expected privacy that has arguably expanded in the more than three decades since Smith was decided becomes all the more questionable.
The government (speaking through the judicial branch) supplied that reason 34 years ago, in Smith.
Yet again, the quantity of information gathered has no bearing on the 4th Amendment character of that information. That argument is a non-sequitur.
It’s akin to asserting that if one person blurts out his bank balance on the train heading into NY, he/she shouldn’t expect those overhearing not to tell others, but if everybody on the train blurts that information out, they should somehow be protected from the guy sitting there with a notepad writing it all down or whomever he chooses to pass that information along to.
Enough with the convoluted reasoning. Once privacy has been ceded, it has been ceded. The number of people ceding it is immaterial.
You’re assuming Rice & Bush would have read the report & done something about it in the first place. We already know they didn’t.
I’d suggest “the Constitution doesn’t require one” is a quite plausible reason.
This is, as commenter HarvardLaw92 has suggested many times on other comment threads, an area where the Constitution isn’t implicated and protections would have to be imposed by statute.
Intelligence is a jigsaw puzzle of thousands of pieces, but where many of the pieces are self-aware and are busily trying not to be fitted into place.
The effects of chance, or of sudden insight, or of unaccountable blindness are far too great when dealing as many variables as we’re talking about, to assess whether this single puzzle piece or that would have made the picture snap into focus sooner. It’s a pointless “what if.” There can be no answer.
Is it reasonable to suspect that more data is better than less? Well, that depends on how the data is analyzed. Too much too poorly analyzed may be worse than too little well-understood.
However, this is a dynamic, learning exercise. If you deny the NSA new methods of data collection then you are forcing them to stick to older methods. This means that the potential utility of the newer methods can never be learned from, cannot be refined, cannot be either perfected or dismissed as useless. Therefore we can never find out whether it might work in some future event.
So the issue becomes “is it constitutional,” and “does it harm innocent folks.”
The courts will decide the first thing. As for the second matter, we’ve seen no evidence of substantial harm.
The harm many people see – setting aside the constitutionality for the moment – is to an abstract idea labeled “privacy.” Of course definitions of privacy are not static, they change all the time. When we lived in caves there was no privacy. When we lived in villages there was very little. There was somewhat more in wealthier nations in recent decades. But I would argue that we altered that when we all moved to using credit cards, telephones and the internet. Expectations of privacy that might have been reasonable in 1960 are no longer reasonable.
The essence of the issue, to me, is the point where data becomes action. In other words, if the government knows X can they take action Y against subject Z. Only the action can be said to create harm. The rest is a fantasy.
People will argue that if the USG knows X then it will inevitably use it to harm innocent subject Z. That’s Orwell’s work taking a toll on our thinking. In point of fact we are quite free, and there is simply no evidence that the USG plans to, or is capable of, turning into a fascistic totalitarian state that attaches hungry rats to people’s faces.
We should always be vigilant. But the point is to control the actions taken rather than the data collected. Because one way or the other, the data exists, the data has been collected, it will continue to be collected.
If you haven’t read the Der Spiegel reports based on Snowden documents you should:
Inside TAO: Documents Reveal Top NSA Hacking Unit
Inside TAO: Documents Reveal Top NSA Hacking Unit
This is an agency that is out of control. They are making enemies of our allies among other things. I had a negative opinion of Snowden initially but no so much anymore. The two articles have the same title but are different.
@Ron Beasley:
That is staged drama. No modern state is surprised by the revelation of spying, even amongst allies. That we all spy on one another, on a regular and ongoing basis, is both common knowledge and accepted reality.
To think that we wouldn’t do is probably utopian.
I have a question about the NSA, and the Boston bombing incident. WHY did they not stop it?
The government’s reasoning in Smith was applied to a single case where a man was known to be making threatening phone calls and they just wanted to confirm it. It is quite a stretch to apply that very specific surveillance with cause to the wholesale consumption of phone records for millions of people. The police can search without a warrant based on probable cause. That does not mean they can just search everyone.
Except that this power, like most powers in terrorism, is being used for the War on Drugs and I suspect for other things as well.
@HarvardLaw92:
And the point is that perhaps it is time for the Court to re-examine Smith, as Judge Leon does in his opinion.
@legion:
Actually the broader point is that the N.S.A wasn’t properly analyzing the data that it had.
@Mikey:
And I’d suggest that relying on a 30 year old opinion issued in a world where technology and individuals’ expectations of privacy were quite different is an intellectually way of looking at this issue, and certainly not what a Judge charged with upholding the Constitution ought to do.
The question in the title “would NSA data mining have been able to stop 9/11?” cannot reasonably be answered without filling in additional data. Specifically, would al Qaeda have known about these NSA methods and would they have been capable of outsmarting them?
It’s like complaining about a blown call by the ref in the 2nd quarter and claiming your team would have won otherwise: there’s absolutely no way to reconstruct how the game would have progressed with the different strategies that would have been employed if the ref had made a different call.
@Doug Mataconis: A judge must also respect precedent, no? And right now the precedent is this stuff isn’t Constitutionally protected.
Perhaps one of these cases will make it to SCOTUS and they’ll revisit Smith. I wouldn’t be one to say that would be a bad thing, but at the same time it could take a while or never happen at all.
@Franklin: Common sense dictates that al qaeda would operate under the assumption that all forms of communication are being listened to. Fortunately these groups seem to lack common sense. Assuming that won’t change is dangerous though.
As a bonafide computer nerd none of this surprises me. I remember reading back in the Clinton era that the NSA was having electrical generation issues. That was a huge giveaway that massive amounts of computer stuff was being done. Aside from computers the associated “cold rooms” and such draw a lot of power. The big issue from the NSA’s standpoint is that they are collecting too much information. It seems they are using automated and human based systems to play a computerized version of the six degrees of separation to determine possible problem people. That works fine for groups like Al qaeda because they are a clear and present danger. Someone like the Boston bomber is something entirely different. IF you want the NSA to have a higher probability of stopping things like the Boston bomber then you’re going to have to move into thought crime territory. Otherwise basic community based policing and not the current military mindset is what is required to stop Boston style bombers.
I personally believe the NSA is probably in need of some reigning in as the “patriot” act and other abominations gave them too loose of a leash. For further examples see what the FBI was doing with their expanded letters power. It’s a human tendency problem.
The problem with data-mining is a) false positives and b) laziness in “letting the computer do all the work.”
In other words, GIGO.
Unless we have proof that all of this activity gets better results (and fewer false positives) than throwing darts at a list with names scribbled on it I’d rather remain cautious and dubious of claimed benefits.
Never fails to surprise me that the same population that screams loudly about Der Ebil Gummint is the same one willing a horde of lowly-paid bureaucrats to grab whatever data said bureaucrats claim is “essential”, trusting these peons blindly.
@Doug Mataconis:
Overruling Smith v Maryland is the Supreme Court’s job, not Leon’s .I expect that in 2015 they will re-examine it-and uphold Smith, over dissents by the liberal bloc. You want Smith overruled? Root for the selection of more judges like Sotomayor, and the retirement of a couple of conservatives.
@stonetools: Sotomayor wouldn’t dare vote to overrule smith v maryland. One thing some liberals and conservatives have in common is the blind deference to law enforcement..
THINK OF THE CHILDREN!!!
@HarvardLaw92:
This is your dangerous idea.
And to be honest, I don’t know why you love it. I mean, you claim to support review and improvement of privacy laws … but you just spend so darn little time on that dream.
Mostly you just say “privacy, always less.”
To answer the top question, the only rational reply is “maybe.” We don’t know.
I think we do know though that in the cases mentioned, surveillance by warrant would have worked just fine.
@Doug Mataconis:
Based on what concept? That people are uncomfortable with it now that they are aware of it?
I see nothing in Leon’s ruling that ventures much beyond “this has gotten too big” and “this touches on too many areas of people’s lives.” The ruling was little more than “I do not like this, so I’ll try to invent an end run around Smith.”
You graduated from GW. I know you are better lawyer than that.
@john personna:
I didn’t say that I love it. I just get monumentally fed up with people inventively twisting the Constitution into saying things that it does not say and extending the scope of constitutional rights far beyond where they legitimately extend.
I’ve said over and over that the remedy for this problem, and I acknowledge that to some extent it is a problem, is statutory. Legislate away, and you’ll probably never hear me complain, but stop trying to twist the 4th Amendment into some perpetual grant of privacy that extends to the nth permutation of how far a revealed secret decides to travel.
@Hal_10000:
No, it isn’t. There is no constitutional difference between one person ceding privacy and 100 million ceding privacy. We are NOT discussing personal privacy here. We are discussing whether or not the 4th Amendment bars a third party from revealing information which was revealed to it.
You folks are advancing ethical and emotional arguments that have no logical basis. Is it ethically smelly? Sure, but for the 9,000th time this week, the Constitution is not an ethics manual.
Please, for the love of God, construct for me a constitutional argument that allows you to prevent somebody from further revealing information which you have willingly revealed to them. The entire purpose of the 4th Amendment is to protect your individual privacy, so how in the world can that individual privacy be held to remain extent when you have chosen to cede it? That expectation is not reasonable.
And for the record – “I do not like this” or “This makes me uncomfortable” don’t fit that bill.
@HarvardLaw92:
IANAL, but I believe the Constitution is not the only privacy law on the books.
(We might even note that Europeans, without benefit of our Constitution, nonetheless have some good privacy laws on the books.)
@john personna:
Isn’t that Harvard92’s point? Privacy LAWS, not a Constitutional right to privacy.
@Stonetools:
No, that’s not really where he’s coming from with this stuff:
He kind of goes to the well, with the Constitutional stuff, but I think that’s just him being a lawyer.
And appeal to lack of Constitutional protections makes his real case, which is “privacy, always less.”
@Stonetools:
Ding ding! Thank you. The 4th Amendment is not implicated here, but that in no way prevents Congress from imposing whatever statutory privacy protections that it chooses to implement.
Yet people are ramping up the righteous litigation machine, and in doing so, they are almost certainly going to find themselves left with a ruling from SCOTUS that resoundingly upholds (and in doing so, expands) the deference extended in Smith. It is a fool’s errand to be pushing this from the litigation side, especially with this court.
A point I’ve made before but will repeat: it’s not just about “how many bad guys did we catch?” This isn’t Law and Order. It’s also how badly have we complicated things for terrorists. They have a hard job pulling off major terrorist attacks, so complicating their lives is good. Make it impossible for them to communicate in any secure fashion, and you complicate their lives. Make it hard for them to transfer funds or travel and you complicate their lives.
@HarvardLaw92:
So then, having “dispensed” with the courts angle, are you ready to talk about your dream for better privacy laws?
What should they be?’ Can we “silo” metadata with phone carriers until a warrant is issued, as Cass Sunstein and the NSA review board recommend?
The problem for me with the privacy issue is that people are seeking to specifically exclude the NSA. What you’re saying in effect is that it’s fine if Verizon, Google, Wells Fargo and Target know everything about you, but the NSA can’t.
It’s like arguing that you’ll walk around in public and it’s fine if everyone sees your face — but cops have to turn away and not make eye contact. You’re not so much standing up for privacy at that point, you’re just being unrealistic. Particularly when no one can define privacy or explain why the government should be excluded from knowing a fraction of what hundreds of companies know.
Should a private company owned by Al Qaeda be able to buy Verizon’s meta data, but the NSA shouldn’t? This is Orwell talking, not experience or logic.
@michael reynolds:
I think the reality is that companies each have to know something about us, some of the time, but they don’t (and government doesn’t) need to know everything, all the time.
Sure, Chase can make a profile of me based on credit card purchases, but we can say how that Chase profile can be sold. Should the Democratic Party really get it? The FBI?
We are a democratic society, and we can decide.
@HarvardLaw92:
From a strategy point of view, I would be real careful about pushing the Supreme Court on privacy issues. I don’t see five votes willing to invalidate a national surveillance program, no matter how useless some bloggers and one judge thinks it is. I don’t want Scalia or Alito writing a privacy rights decision. I doubt Doug would like the result.
@john personna:
Just a suggestion: you seem to let personal dislike color your commentary by trending towards snark, and that’s beneath your intelligence. Stop it.
My own personal feelings on the matter? Between
1) the knowledge that the NSA knows a small subset of what Google, Facebook, Intellius et al know about me, and;
2) the knowledge that the likelihood that the NSA has any interest in me is indistinguishable from zero
I am unconcerned. I’ve never been one for paranoia, and I’ve certainly never been a pie in the sky utopian, so I sleep pretty well knowing that an agency which couldn’t care any less about me knows which phone numbers I dial. If anything, I’d worry about them dying from boredom if they took an interest.
If other folks want to advance that position, then more power to them. They can balance whatever legitimate arguments they can make (and again, IMO, “I do not like this” isn’t really a legitimate argument) against the need for domestic security, and express whatever conclusions they derive to their elected representatives.
I’m a lawyer, ergo I concern myself with the constitution and the law. The constitution offers you no protection here. Statutory law can, so stop (badly) trying to deputize the former into the argument and start pursuing the latter.
HarvardLaw92
Two thing though:
1) I disagree with the notion that we have “ceded” privacy. Our privacy has been “ceded” for us by the Court. I find this third party business extremely shaky, especially when you’re talking about a utility that Americans have little choice in using. I reject the idea that our communications — be they metadata, e-mail or post — lose all protections because they happen to pass — very briefly — through the hands of a third party. This is *not* the same thing as someone revealing a conversation I’ve had with them or an e-mail I sent to them.
In that sense, I think Doug is right that Smith needs to be revisited. You should read Friedersdorf’s admittedly far-fetched thought experiment on this. If the government could read our minds from hair clippings, would that be OK because they get them from a third party? Where are the limits? I realize that many legal minds value precedent and consistency over all else. But surely we have to admit that there is some limit to this third party business? The more I read, the more I become convinced that this is back-end rationalizing of an end-round the Constitution rather than any kind of principle. It’s a thought process that starts with “Hey, how can we get this information with a warrant?” not “What does the Constitution say about this?”
2) If you accept that there must be some limits to the the third party end-around of our 4th Amendment Rights, is is not reasonable to place that limit at probable cause? Is not reasonable to draw a distinction between collecting third party data on someone suspected of a crime and third party data on someone not suspected of anything?
@HarvardLaw92:
I believe Judge Leon lays out a fairly good argument about how the way people interact with communications devices and providers today than they did 30-odd years ago. At the very least there is a viable argument that the idea of what constitutes a “reasonable expectation of pirvacy” means in today’s day and age. That’s something that it is appropriate for Courts at all levels to examine at all levels, IMO
@john personna:
Statutory law can say that. SCOTUS determined long ago, in a case that predates Smith (US v. Miller), that the 4th Amendment doesn’t protect your bank records either.
People have a seriously distorted concept of what the 4th Amendment does and does not do.
@HarvardLaw92:
Certainly invites snark.
On the rest, I’m pretty sure that distills to “I have no problem with an unrestrained surveillance state.”
That might invite snark too, if all the Constitutional hand-waving has only been window-dressing.
@stonetools:
Leon didn’t overrule Smith, he distinguished it, which is perfectly within his rights to do as a trial Court Judge. Taking your view of precedent, there’s no reason at all to have District Court or Circuit Court Judges, just plug every case into a computer and let it spit out a decision that the guys and gals at SCOTUS can deal with. That isn’t the way things do, or ought to, work. Indeed it’s often been the lower courts that have led SOCTUS to reconsider its own rulings and fix obvious problems.
@Doug Mataconis:
And, again, I see no material change in whether people can have a reasonable expectation of privacy with regard to information that they willingly reveal to a third party. They assume the risk of divulgence when they disclose it.
People keep trying to sidestep that uncomfortable concept – the expectation that something you willingly reveal to a third party must be kept secret even if that third party is comfortable with revealing it. It’s a serious stretch from a constitutional standpoint, and I suspect that you know that.
@john personna:
Snark usually tells me “I do not like this, but I can’t logically rebut it, so I’ll take my frustration out on the perceived enemy that voiced the argument instead.”
My perception of you has been that you are more intelligent than that, but if you choose to demur, that’s your choice.
@HarvardLaw92:
No, it means I’ve pegged you.
@HarvardLaw92:
If you want me to go further about how I think I’ve pegged you, I think your entire arc of argument is dishonest.
If you believe in an unrestricted surveillance state, you should start there.
You shouldn’t distract with arguments that the Constitution, by itself, and without other privacy laws allows an aggressive surveillance state. That is a dishonest path, because you know other privacy laws are possible.
@Doug Mataconis:
No, the purpose of District Court judges, from a constitutional standpoint, is to apply the precedential rulings of SCOTUS when such rulings exist, and to attempt to interpret the Constitution in order to apply its mandates to cases in which the precedential guidance from SCOTUS is murky or non-existent.
Please, for the life of me, demonstrate how “you have no reasonable expectation of privacy inherent in information which you have revealed to a third party”, which is long established precedent that both predates Smith, was strongly reiterated in Smith and has subsequently been preserved in later cases, isn’t applicable here.
There is no getting around that concept, and SCOTUS has not been vague about it. Leon simply disliked it, apparently decided that they were wrong, and substituted his own judgment for theirs.
I’m pretty sure you know what that will entail at the appellate.
@john personna:
No, it means that you are layering your emotional perceptions onto me because you dislike my argument, rather than logically rebutting it.
Again, that is your choice, but I think we’ve exhausted that approach. If and when you choose to make a logical argument, I’ll respond to it, but I’ve grown bored with “you suck”.
@john personna:
Indeed. I’ve suggested about 9,000 times now that pursuing statutory protections, instead of this misguided and erroneous appeal to the 4th Amendment, is the way that you folks should be proceeding.
@HarvardLaw92:
Ah, another revealing moment, with “you folks.”
And here you wonder why you aren’t getting traction as a friend of American privacy.
@HarvardLaw92:
On that, I will admit that I lost patience. It happened the 2nd or 3rd time I saw the line:
At that point I stopped believing I was even hearing an “argument.” I knew I was hearing a rationalization.
@Hal_10000:
Which is not the idea that is being postulated. Consider it in the context of an envelope that you mail to someone.
Opening that envelope to read the contents requires a warrant. Do you really expect anybody to believe that reading the information written on the outside of the envelope should require one as well?
Because that is the logical equivalent (with respect to phone data) of what is being argued here. Surely you see how that falls apart from a 4th Amendment perspective.
@john personna:
And yet, countless postings on the matter later, you still have yet to logically rebut it. The floor is, of course, yours in that respect.
Exactly. Sending your information through an e-mail server or other facilitator does not mean you have “revealed” it to that third party or “ceded” you privacy. This sounds more like finding creative ways around our privacy than anything else.
@HarvardLaw92:
Seriously, you believe that “privacy, always less” is just a reality of our society?
(I’m pretty sure that some had to change their practices, to comply the the Privacy Act of 1974. And thus complying, they returned privacies “ceded.”)
@Hal_10000:
From a constitutional standpoint? No, there is absolutely no limit to it. We may not like that concept, but SCOTUS has been more than clear about it for close to 40 years now, in multiple rulings.
From a statutory law standpoint? There is no limit to the limits which can be imposed on it. Hence my assertion, which is threadbare by this point, that the solution to this problem is statutory, not constitutional.
@john personna:
Which, again, is a statutory solution imposed in an area where the Constitution offers no protection. You don’t seem to be grasping the distinction.
@HarvardLaw92:
A privacy booster might have referenced this:
Rather than to claim … you know the line by now.
@HarvardLaw92:
No sir, this point you have retreated from that line you should know so well.
Ah heck, let’s hear it again:
@Stonetools:
Exactly. It’s as if they missed Clapper v. Amnesty International entirely. This particular rabbit hole doesn’t go where they think that it goes.
@john personna:
Which, again, is a statutory solution.
Do we need to have a primer on what constitutes constitutional law and what constitutes statutory law? You seem to have them confused, and you keep citing statutory solutions when I have been telling you for pages now that statutory solutions are precisely where you need to be going with this issue.
What point are you trying to make exactly? That I agree with you on the matter? If so, well, thanks I guess.
@john personna:
Now you are making no sense entirely.
I’ve told you in no uncertain terms that the constitution offers no protection here. You either can’t or won’t refute that point.
I’ve told you, exhaustively, that statutory law offers a pretty limitless buffet of imposable limitations on the data collections, and yet you keep citing statutory laws, apparently in an attempt to rebut that ends up agreeing with what I’ve been telling you from the outset. You are making my point for me, while failing to do anything to rebut the constitutional argument that I have made.
Take a minute or two (or as many as you need) and regroup. You’re falling apart here.
@Doug Mataconis:
Call it what you like, Leon held that phone metadata-which the Smith court specifically held was not constitutionally protected- through the passage of time and technological change, has now become constitutionally protected. That looks like overruling to me.
Whatever its called, the key issue is whether there are 5 votes on the USSC upholding Leon’s view. Now as a political science guy and political blogger, you should be aware of the political calculus applying to such a decision. Can you count 5 votes upholding Leon’s view on this Court? I can’t count more than 3 at best -Sotomayor, Ginsburg, and maybe Kagan. They may be able to bring Breyer along, but I’m unsure about him. None of the conservative bloc except Kennedy is even remotely in play. Now if I’m wrong, by all means present a route to 5. I’m not seeing it.
@stonetools:
I suspect that Kagan might end up recusing herself, given her former position and the almost certainty that she was involved to some extent with policy decisions on the matter. She has been a stickler for recusal.
@HarvardLaw92:
What’s going on here is that people like the idea of a universal constitutional right of privacy. They like it so much that they think it actually exists. What people don’t understand is that even the concept of a reasonable expectation of privacy that protects electronic communications is already a stretch beyond the words of the 4th Amendment, which says nothing whatsoever about phone calls or emails or anything electronic.
@stonetools:
I think it’s more a case of people expecting third parties to be bound by what those people think they should be entitled to with respect to some imagined sense of privacy.
I see it over and over again – “The phone company shouldn’t be able to sell my records”. “Chase shouldn’t be able to sell my data”. Et al . ad nauseam ad infinitum.
It’s emotional foot stomping which amounts to a pouty lipped “that is just unfair!!!”. Which is why I rarely take it seriously.
It’s also why I get such a kick out of thumbs downs from people either afraid to or unwilling to advance a substantive argument. They amount to a tantrum that lets me know I’m winning.
@Ron Beasley:
Out of control? A 2008 internal catalog of compromised BIOSes that can be installed on hardware, and that gets used on ~280 targets a year? Care to articulate why this is something outrageous for a foreign intelligence agency to have the capacity and the mandate to do?
Every signals intelligence service in the world is is aware of the potentially enormous consequences to even minor disclosures of their foreign espionage activities. It’s a rare citizen of another country that will react with much understanding to documented evidence that they were surveilled. Spies being caught or defectors making unverifiable claims can often cause minor international incidents between countries, with one side usually just denying the charges, but it’s a whole other scale of damage when a trusted insider absconds with hundreds of thousands of classified documents on your and your allies foreign intelligence activities, and then they are marketed effectively in country after country to build maximal outrage. Even the most benign intelligence service on the planet wouldn’t come out of that scenario unscathed, and I imagine they all are now working feverishly to harden their own classified data against insider threats.
@stonetools:
No one knows. Sometimes(Something like one time every five or ten years) Thomas and Scalia does something good on Civil Liberties.
@Andre Kenji:
Yeah, but that ain’t the way to bet. I could see both of them upholding and even expanding the holding in Smith Indeed I think that result far more likely.
@HarvardLaw92:
We’re more discussing whether or not the 4th Amendment bars the government from demanding information from a third party because information was revealed to it. By the logic you are using, if I tell a friend a secret the government then has the right to subpoena my friend to give them that information since I have ceded my right to privacy. If my friend or AT&T decide to tell my secret to the government that is one thing, if the government subpoenas that information from my friend or AT&T that is something else entirely.
@HarvardLaw92: “It’s also why I get such a kick out of thumbs downs from people either afraid to or unwilling to advance a substantive argument. They amount to a tantrum that lets me know I’m winning.”
Winning what?
@HarvardLaw92: “It’s emotional foot stomping which amounts to a pouty lipped “that is just unfair!!!”. Which is why I rarely take it seriously.”
Could you please explain the difference between this terrible, childish attitude and your own towards copyright law, which consists of “the constitution is wrong, the supreme court is wrong, I am right and nobody can tell me otherwise.”
@Grewgills:
Not to put too fine a point on it, but they do. Probable cause wouldn’t attach. Probable cause is applicable to searches. That is not a search.
If I as a prosecutor believe that you have information which was provided to you by someone else which is material to my case, then I can certainly subpoena you and force you to reveal it (on pain of being jailed for contempt if you don’t).
That said, corporations don’t enjoy entirely the same 4th Amendment rights as people do to begin with. This is material because, if there is indeed any party situated to assert a 4th Amendment claim, it would be the owner of the records in question. Short version? The phone company owns the records, the individual caller does not, ergo there is really no basis for the individual to assert standing with regard to the records to begin with.
See where this is going?
@wr:
You do get that this has become a debate, correct?
@wr:
I wondered when you’d try to rehash that one yet again.
I laid out the basis for my constitutional argument there as well – namely that the 5th Amendment postdates the copyright clause, and therefore is governing with respect to the taking of a property right inherent in the termination of a copyright.
Given that the courts have been clear that the 5th Amendment takings clause is applicable to intangible property, the termination of a copyright without due compensation for the FMV value of the loss to the taker, or indeed even any effort on the part of the state to determine what the value of such a loss might be, amounts to an unconstitutional taking. So sure, they can be cancelled. The state just has to pay the holder for his/her loss.
I’ll note that you, like your friend above, seem either incapable of rebutting that argument in a logical way based on the Constitution, or unwilling to attempt to do so. You do, however, seem content to complain about it to no end.
I’ve been more than clear that I do not entertain emotional arguments. Either get on board and make a logical, constitutional argument based on the verbiage of the document and the operative precedent, or get treated like a foot stomping pouty person who is throwing a tantrum. Don’t blame me because you wandered into the deep end of the pool without your floaties on.
Would just like to make a little observation regarding the original question about the NSA discovering information that would have stopped the attacks of Sept 11th, ’01. As mentioned in the Original Post and in some of the comments, the information required was available: The San Diego phone number was in the phone book. The sudden interest in flying large commercial aircraft by young Saudi men. The previous attack on the WTC.
What was lacking was the imagination to think we could be attacked by a non-state-actor using terror-type tactics.
Pretty much like the failure of imagination that led to the collapse of the banking system in ’07 and ’08.
Both disasters could have been prevented if not for huge black holes in the minds of key administration figures caused by their ideology.
Now back to the regularly scheduled program.
I don’t really get the animus directed at HL92. Here is his argument as I understand it:
1. Privacy in electronic communications has been ceded with respect to third party recipients(Smith). HL92 is not wildly happy with this, but it’s precedent.
2. The 4th Amendment is no bar here (again, Smith). (“Goddamit it oughta be!” is not an argument.)
3. It is (probably, actually) unrealistic to expect SCOTUS to ride to the rescue by overturning Smith — and who, here, given the composition of this Court is totally comfortable saying he’s wrong?
4. Therefore, the best corrective is legislation.
What’s the problem with that?
@Grewgills:
“By the logic you are using, if I tell a friend a secret the government then has the right to subpoena my friend to give them that information since I have ceded my right to privacy.”
Umm, yes. Why would the government not have the right to subpoena the friend? The friend would not be subjecting himself to self incrimination, only to incriminating you.
@sam:
I think you have pretty much nailed it.
The problem, of course, is that there is little likelihood that this Congress will pass any effective privacy rights legislation, and the privacy rights advocates know this. If anything , they have a BETTER chance with the Supreme Court than they do with legislatures.
ISTM the Court would implicitly divest 3rd party businesses of some of their proprietary interests in their customer records if it were to significantly narrow or overrule Smith. The back-to-Lochner clique will therefore not do it, and the progressives don’t have the votes. The fix will have to be legislated. The Court reaffirming Smith – or strengthening it even – could provide the impetus to pass legislation but I have zero confidence in the current Congress effecting the change.
@HarvardLaw92: “I’ve been more than clear that I do not entertain emotional arguments”
It’s pretty clear that you’ve said that over and over again. It’s also pretty clear that you take your own personal opinions and then twist legal verbiage around to justify them. You are incapable of admitting, for instance, that your particular vision of the fifth amendment overruling centuries of copyright law is not taken seriously at any level of American government. But you go on and on justifying how your emotional reaction is right and the objective world is wrong.
I understand you like to think you are the product of pure logic, and thus we should all discuss issues solely on your terms. But to some of us out here, you are simply among the least self-aware human beings on the internet. You state your religious principles and demand that others disprove them to your satisfaction. That’s a mug’s game, and I don’t feel like playing.
@wr:
In other words, what I said about your tactics before:
“Your argument makes me mad, but I either can’t or won’t build a logical rebuttal, so I’ll just attack you personally instead. Because I am ruled by emotion, rather than logic, that is how I handle my grievances”
We’re not discussing some set of philosophical concepts over at the coffee house, where everybody can be figuratively right and it’s all some extended exhortation of feelings. This is the constitution and the law, and that is a logical game, not an emotional one. If you dislike my legal analysis, offer one of your own. I’ve done everything but smack you on the cheek with a glove daring you to do that, and yet you consistently refuse. So, by all means, make an effort.
In the meantime, “You suck” is boring and childish. Grow up
@HarvardLaw92: @Moosebreath:
Wouldn’t or shouldn’t they require some reason for that subpoena? If they have no probably cause to think I have committed a crime, going on a fishing expedition subpoenaing all of my friends and business acquaintances seems more than a bit of a reach and an invasion of my privacy.
Simply saying somebody might be up to something so we need to gather information on everyone is far too Orwellian for a nominally free society.
If my carrier and I have a contract that specifically states that they will not share my information with any third parties does that provide any protection? Or is my privacy ceded regardless of any contract? If the latter is the case, then something is terribly wrong with how we are doing things and it needs to be fixed.
@Grewgills:
“Wouldn’t or shouldn’t they require some reason for that subpoena? If they have no probably cause to think I have committed a crime, going on a fishing expedition subpoenaing all of my friends and business acquaintances seems more than a bit of a reach and an invasion of my privacy.”
Probable cause is a very different issue than what you raised. The comment I replied to read:
“We’re more discussing whether or not the 4th Amendment bars the government from demanding information from a third party because information was revealed to it. By the logic you are using, if I tell a friend a secret the government then has the right to subpoena my friend to give them that information since I have ceded my right to privacy. If my friend or AT&T decide to tell my secret to the government that is one thing, if the government subpoenas that information from my friend or AT&T that is something else entirely.”
The concept of probable cause appears nowhere in the comment quoted above. The issue of privacy has nothing to do with probable cause — it has to do with whether there is some reason why the information should not be revealed to the government, even if there is probable cause.
@Moosebreath:
It was mid conversation and I was perhaps a bit sloppy. We were talking about the NSA looking at everyone’s metadata. I should have added the qualifiers that came after, but was in a bit of a rush and assumed they would be understood.
@Grewgills:
Yes, the demonstration to the satisfaction of a court that there is sufficient reason to believe that the information exists and is material to an ongoing criminal investigation / prosecution.
Which, we’ll note, is exactly what FBI did when going before an Article III court in requesting the subpoenas that facilitate this gathering of information. They are court orders.
In the face of a court order? No
We probably need to clarify probable cause. It applies to searches, and SCOTUS has been more than clear that the gathering of 3rd party business records via subpoena does not constitute a search within the context of the 4th Amendment. Probable cause is not implicated here. Is that fair or ethically happy? Not necessarily, but it is what it is. The constitution is not an ethics manual.
@HarvardLaw92:
Reasonable people would assume their information was private if their provider contractually promises them that the information they shared, including their metadata, will not be given to a third party. The courts have given too much deference to the government for this and I welcome more decisions like Leon that could narrow their too broad interpretation. I realize that is not likely to pass the SC, but more decisions like this in the lower courts could pave the way for a much needed legislative fix.
@Grewgills:
You have already consented to revealing the information by revealing it to your provider. Any step beyond that by the provider is entirely out of your control. You have no reasonable expectation of privacy regardless of what’s written in the contract. If the provider turns over your information, you don’t have a Fourth Amendment claim, you have to sue the provider directly, assuming you even know they turned it over (which they of course don’t have to tell you, because it’s not your information, it’s theirs).
@Mikey:
So contracts mean nothing, good to know.
@Grewgills: It’s not meaningless, it just doesn’t confer Fourth Amendment protection to information you’ve already consented to reveal to a third party.
@Doug Mataconis:
“And I’d suggest that relying on a 30 year old opinion issued in a world where technology and individuals’ expectations of privacy were quite different is an intellectually way of looking at this issue, and certainly not what a Judge charged with upholding the Constitution ought to do.”
Right and there are those of us who might saw the same thing WRT corporations = legel person, or Money = Speech, what do you think the odds of that happening are?
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