Memories of the 28th Century

The issue of the records that the NSA has compiled is worthy of attention. There is a point where a government can be found to be abusive, and we should consider whether the U. S. government has gone that far.

The Fourth Amendment to the U.S. Constitution is pretty clear. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” I don’t think that there is any doubt that any federal agency has to get a warrant sworn on probable cause to search for potentially incriminating information that regards a U.S. citizen. Yes, electronic records are not papers, but they are effects, and locations within collections of records are “places”, even if they are not physical locations.

While I am confident that looking at any of the content of an email or listening to any part of a recorded phone conversation would require a specific warrant, a list of times when communications were carried out from a given email address or phone number are a directory, and are not different in type from a listing of all of the addresses on a street. But adding who or what email address or phone number a messages was sent to would be looking at the content, and I think that would require a warrant.

The NSA has asserted that it has compiled telephone and email records to make it easier to find and examine records of persons who are thought to be dangers to the U.S.A. I wonder whether the NSA has concerned itself with trying to nail down something that hasn’t happened yet, and that may not happen. It is not proper for a U.S. government agency to spy one people who are not criminals, but it seems like the government has been trying to criminalize “thought crimes”. It is not criminal to think about blowing up the White House; although it would be criminal to engage in actions that would lead toward blowing up the White House.

The NSA was set up in the Cold War era to try to gather information regarding the Soviet Union, and it seems to have developed some good methods for doing so. Their targets in those times were clear and well defined. Applying the same techniques to al-Qaeda isn’t as easy, because it is not a clearly defined entity. Terrorists are criminals, not a country with a government, an economy, millions of people, and so on. An effective criminal gang is small enough that the members can meet together when necessary, so they don’t need the widespread communications that governments need, and the chain of command is much shorter. But even considering those details is giving the NSA more consideration than it deserves. As I noted above, there is no doubt that any federal agency needs to obtain a warrant for any and all searches.

There is a more fundamental question, and that is whether there is any need for large amounts of secret information. The U.S.A. belongs to the citizens, and we citizens have a right to know everything that our government is doing. If the government is, or some people in the government are, doing things that are shameful, things that should be kept secret, then I don’t think that we citizens want our country involved. I understand that some of the information is kept secret so that potential enemies can’t use it against us, and we want to keep some things and some knowledge secret, so that terrorists or lunatics can’t use it to attack the U.S. To this end, I think that a general review of what is secret and why it is secret. If it is simply that someone would be embarrassed by the information, then it should not be an official secret. But if something could to harm to the country, then it should be secret.

While there are review boards over the NSA and the CIA, the members are tied into those agencies much more than is best for the country. We also need to make a clear distinction between what might be permissible and what is not permissible. It is not acceptable for the NSA to spy on U. S. citizens without obtaining a warrant beforehand, and the information in email headers is private information that is protected by the Fourth Amendment. That is analogous to the address information on a physical envelop in which a letter is sent. The Post Office does not keep copies of envelopes, and a warrant would be required to obtain that information from the recipient; there is no reason why users of email are not afforded the same protection.

There is no doubt that there will be some reorganization of the NSA within a year, but we will have to apply some pressure to ensure that the rights of the people will be respected by the NSA and by other spy agencies. The U.S.A. does not need as many secret agencies as exist, because we don’t have much that needs to be kept secret.

What do you think of governmental secrecy?