GLEN COVE, NY – The recently disclosed spying on Americans by our government violates the principles for which we fought in our War of Independence.
From about 1765 to 1775, much of New England fought a sort of cold war with the British until it erupted into a hot war in 1775 at Lexington and Concord. One of the tactics of the British during the cold war was the use of a writ of assistance that functioned as a kind of unlimited search warrant. As a result, a provision was put in our Bill of Rights: all search warrants had to be based on “probable” cause and specify the thing being searched for.
The right to search an American’s electronic communications should comply with the stipulations of the Bill of Rights. Originally, when telephone calls were operator-assisted, asking the operator whom a person had called was not a search; however, attaching extra wires to his telephone wires to listen to his conversations required a proper warrant. Counting the number of clicks made by a rotary dial telephone did not require a warrant. A rule developed that finding out whom a person called did not require a warrant. But finding out what was said did.
The law is in need of further sensible development. There is nothing wrong with finding out whom a suspect is calling, or even finding out whom some of the people called, if they are suspicious. Today, however, it is possible to examine patterns of telephone calls from and to hundreds of millions of telephones. We have recently learned that the government has obtained the complete telephone logs for months for over 100 million telephones with a single subpoena. This amounts to a subpoena that does not specify the particular thing being sought. It is very much like the writs used by the British in colonial Massachusetts to search a house for anything they could find.
One could object that data in one of these searches of hundreds of millions of telephone records are ignored, but that is irrelevant. The government now has the data from which, without returning to court, it can find the names of everyone repeatedly called by the membership division of the National Rifle Association. The fact that the government is only using these data to fight terrorists does not justify giving to the government the tools for more tyrannical and unsupervised activities.
Even more disturbing is the fact that the government now apparently has everybody’s Internet records. The truly guilty may erase and hide their trails, but most of us leave detailed trails. We leave records of books we have ordered. We leave records of organizations whose dues we have paid. We might leave records of what kind of clothes we buy for ourselves and for members of the opposite sex. It may well be that such information is harmless in 99 percent of all cases, but that is not enough.
Some people may leave traces of their vices, and some of them may not realize it. More ominously, some may leave just enough clues for clever psychologists to figure out how to tempt them into compromising situations. Even if they leave nothing more than something mildly embarrassing, it is not the role of government to hold all such data on most of the population.
Our government may intend to do nothing with hundreds of millions of electronic telephone logs and Internet records other than to fight terrorism. We must remember, however, that the same people will not always run the government; if our future leaders decide to misuse this information, they will already have it and will not have to go before a judge again.
We need to strip the government of these monster databases and limit such databases to those having a rational relation to legitimate suspects. Perhaps we could allow the government to have a basic database of computer identifications to make it easier to construct the data obtained with court orders regarding real suspects and their correspondents. But we surely do not want the government to have data regarding all the personal preferences of 200 or 300 million Americans.
The Confederate Lawyer column is copyright © 2013 by Charles G. Mills and the Fitzgerald Griffin Foundation,www.fgfBooks.com. All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the New York State American Legion. He has forty years of experience in many trial and appellate courts and has published several articles about the law.
See his biographical sketch and additional columns here.