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May 11, 2006
On Building a Phone Call Database
As I reflect on the latest revelations concerning the NSA's domestic activity, I do not ask myself if it is currently legal. I do not ask myself if it is effective. On the question of legality I am unqualified to answer. I do strongly suspect that it is either illegal or there is no specific law that addresses this type of data collection and mining. On the question of effectiveness, if any action is illegal or should be illegal, I do not care how effective it is. So the real question in my mind is, "Should it be legal?" In this case, should it be illegal for the government to develop a large-scale, untargeted, database of what phone numbers call what other phone numbers and when.
I do think that collecting data from citizen for such a database without "probable cause, supported by oath or affirmation" (to quote from the Fourth Amendment) is an unreasonable search with dangerous political and privacy consequences. I therefore think it should be illegal.
Let's step back from the 9/11 fears and ask a set of rather simple questions. Do I believe that no one in any administration would use such a database for political gain or against an innocent citizen? Do I believe that there are no members in the current Bush Administration that would use the data for political gain? Do I believe that no one in the Clinton administration would have used this database for political advantage? The answer to all three of these questions is NO. Even if one doesn't believe or doesn't want to believe that the President himself or herself would make illegitimate use of such a database, it is naive beyond explanation to think that some political operative would pass up the opportunity to misuse the data.
One thing that bothers me about this is a kind of constitutional brinkmanship that is clearly part of the day to day decision making process of this, and frankly, other administrations. In engineering there is what is called "guard banding" where the engineer designs beyond theoretical margins to insure that the product will work under worst-case conditions. If a system were supposed to work at minus 30 degrees, a prudent engineer would design it to work at minus 40 degrees just to be on the safe side, to provide a "guard band." In rabbinic law, there is such a thing as a "fence around the torah." As J. Israelstam explains with regard to Aboth 1.1,
The Torah is conceived as a garden and its precepts as precious plants. Such a garden is fenced round for the purpose of obviating willful or even unintended damage. Likewise, the precepts of the Torah were to be "fenced" round with additional inhibitions that should have the effect of preserving the original commandments from trespass.
However, it is the practice of too many politicians to test the limits of the Constitution (and law in general) rather than "guard band" against abuse. Or put it the other way, they fail to put any fence, even a low one, around the Constitution.
Congress must follow the brave example of Quest Communications and refuse to let this practice continue.
Posted by Duane Smith at May 11, 2006 9:15 PM | Read more on Current Events |
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