Dear Stewart,
You raise, as usual, some excellent points. Before I respond, let me first briefly summarize what the Supreme Court has told us about the Fourth Amendment law and telephone surveillance:
1. To get the phone company to tap my line, the government must have 1) probable cause to believe I’m doing something illegal, and 2) a warrant signed by a magistrate.
2. However, to see a list of all the phone numbers I’ve called, the government doesn’t need anything at all. The Fourth Amendment doesn’t require the government to clear this decision with anybody.
Item 1 probably isn’t that surprising. Though the probable-cause-plus-warrant requirement seriously burdens the police, we don’t really want the police tapping our phones whenever they decide we might be up to no good (under their own definition of no good). And even if we trust the feds, the Fourth Amendment applies equally to federal, state, and local officials. Constitutional rules empowering the FBI also empower every local police department.
Item 2 might be more surprising: One might think that whom one is calling is pretty private, too, so the government should be able to get this information only if it has probable cause plus a warrant. But on the other hand, the government sometimes needs such surveillance to find the probable cause in the first place. Also, there’s an analogy to the government’s power to watch your house from outside: The police can note who is coming to talk to you but can’t eavesdrop on your conversations unless they have cause and a warrant.
So that’s the rule for phones; and I agree, Stewart, that it makes legal sense to apply it to Internet communications, too. Some people aren’t wild about Item 2 for phones and don’t want it extended to e-mail, but let’s for now assume the current rule is sound. So I agree the government should be able to read my e-mail if it has probable cause plus a warrant, and should be able to track the “from” and “to” addresses even without cause or a warrant.
But what about the URLs of Web sites I visit, such as http://slate.msn.com/dialogues/01-09-17/dialogues.asp?show=09-18/2001 or http://askjeeves.com/main/askjeeves.asp?ask=how+do+I+cure+toe+fungus&ori=0? (Search engine queries often translate into URLs containing the search terms.) As you point out, the Justice Department’s position is that they’re allowed to get this information, too, by analogy to phone numbers. Not a great analogy, if you ask me. Seeing the full URL is more analogous to the government seeing the subject matter of a phone conversation, not just the parties’ phone numbers. And, according to the Justice Department’s theory, this could all be done with no Fourth Amendment constraint.
Moreover, once Carnivore is installed at an Internet service provider, an overzealous government agent could intercept not just the text of messages for which he has a warrant, but also the text of other messages. You’re right that this is illegal, and the agent could be prosecuted for this (if anyone finds out); and I’m happy to hear your suggestion that superiors be able to audit this data (something that to my knowledge is not the case right now). But, sad to say, sometimes superiors are themselves flawed, even in the FBI, and certainly in some local police departments.
And unlike with phone company taps, Carnivore commands are run directly by government agents, without any participation by ISP employees, so there’s no outsider keeping records and potentially blowing the whistle. The guardians are unguarded from the outside; and much as I hope that internal government checks—”ambitious people whose careers would be made if they could uncover violations of law at NSA”—will do the job, sometimes (not always, but sometimes) uncovering a fellow government official’s misconduct means the end of a career, not the making of one.
Now, I’m not a Fourth Amendment maximalist. I take seriously the notion that only “unreasonable searches and seizures” are unconstitutional. I often define “reasonable” quite broadly. And maybe you’re right that “after last week,” “expanding [the government’s investigative reach] a little” isn’t a big deal. But you’re also right that we’ll be living with this a long time: These powers will not just be used to fight the war on terrorism, but also the war on drugs, the war on pornography, the war on copyright infringement, and who knows what other wars.
Finally, let me return to something I earlier set aside: Is it good for the government to see the phone numbers I’ve dialed, with no warrant and no probable cause? Yes, the court upheld this 20 years ago, but was it correct? After all, we shouldn’t be so precedent-bound that we extend bad ideas into new areas.
I don’t know whether the court got this right. But I do know the court’s decision has been defended as, well, just a small step. And now this extension—from phone numbers to the more telltale URLs—is defended as, well, just a small step. And the next extension will also be defended as just a small step.
What’s more, the logic of the government’s argument, which is that there’s “no reasonable expectation of privacy” in information (such as a dialed phone number) turned over to a third party (a phone company), can go many steps down: It can apply not just to URLs but also to e-mail text, since that’s likewise being turned over to a third party (the Internet service provider). Courts that buy this logic may approve all these steps. And a bunch of small steps could add up to a large one.
Now, it’s easy to mock such “slippery slope” arguments; I’ve mocked many in my day. But our legal system rests on precedent and analogy, as do many of our political and moral arguments—witness your own post. So it makes sense to worry about where our small steps are leading.
This having been said, you’re absolutely right: We can’t demand protection from our police (local or federal) while denying them the tools they really need to provide this protection. And if seeing what Web pages and queries people are using—or intercepting communications entirely through government agents, rather than through ISPs—will help catch terrorists, maybe the sacrifice is worth it. I guess I’m just not sure the benefits are as great, or the costs are as slight, as some suggest.
Eugene
