Friday, May 12, 2006

The separation of powers, R.I.P. - War Room -

War Room - "The separation of powers, R.I.P."

While this issue doesn't affect me directly, as I am not an American citizen, its still worth making note of, IMO. And as the global IT infrastructure becomes more and more homogeneous, we have to remember that its not just American calls going through those massive switching rooms in US Telcos.

I first wrote about this issue a couple of times in early April ... here, and here. It now seems to be coming out in public that the NSA has records of pretty much every call that went through a US switch room in the last few years. If you are lucky enough to be a Qwest customer, you may be less affected, as they have refused access, but they were the only company to object to the suggestion that spooks be allowed to set up shop inside the switching rooms.

There is no question that legitimate terrorist activity needs to be rooted out. But just as police have no right to troll through the phone records of all New Yorkers, to find the few involved in organized crime, equally there's no right to troll through the calls of Americans to find terrorists. The right against search and seizure guarantees that the government won't put me under surveillance without a valid, court endorsed reason.

We routinely reject the argument that police should be allowed to enter our houses without cause ... even though that would find occasional criminals, it would inconvenience and stigmatize far too many innocent citizens. There is no difference here ... no one is suggesting that the hunt for terrorists stops, but as with the hunt for ANY criminal, you cannot break laws or trample on the rights of others to find out who is a terrorist.

What is the government doing with the phone records? Well, we don't know, and we don't really have any way of finding out for sure. The president said today that his administration isn't "mining or trolling through the personal lives of millions of innocent Americans." OK, but isn't it "mining or trolling" through the data? And if it isn't, why has it gone to the trouble and expense of collecting that data at all?

How is the government safeguarding the information? Well, we don't know that, either. Imagine for a moment that an FBI agent investigating a kidnapping wants to see who has been calling you. The Electronic Communications Privacy Act sets forth the safeguards to be observed before the agent can get the records from a phone company. But now that the NSA has all the records, can the agent simply search through them to find what he needs without getting anyone's approval first? Now imagine that the would-be searcher isn't an FBI agent investigating a crime but a Bush administration official doing some research on a political opponent. Can he run a search through the records, too?

To me, the above paragraphs highlight the problem perfectly. The issue is in oversight, in the guarantee that Americans have that their government is acting appropriately. Normally, Americans don't have to guess about that ... checks and balances are in place that guarantee the government won't abuse its powers. Maybe it isn't abusing power in this case ... but without the oversight of checks and balances, no one will ever know. We are forced to trust that the administration is using the data appropriately. We have to trust that the guy looking to search the records for political reasons is going to be turned down. But it shouldn't be a trust issue ... That's why the system is supposed to have checks and balances, lol.


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