Fourth Amendment Purists Are Living In A Dream World

Fourth Amendment Purists Are Living In A Dream World

Spy work holds deep allure for many people. My own career as a secret agent began as an outgrowth of training beagle hunting dogs. See, I needed new antennas for the little radio transmitters in the animal’s collars—which combined with a directional antenna and multi-channel receiver helped me bring the little rascals home alive at day’s end.

You wouldn’t believe some of the scrapes those dogs could get into. One time, we found three beagles inside a beaver dam fighting a cornered raccoon. Had we not intervened, he’d probably have drowned them.

So anyway, I called customer service at Wildlife Materials, Inc.  to order the antennas. Ever the subversive, I made a joke about buckling a tracking collar to the bumper of my wife’s car.

Long, painful silence.

“Um, air, we’re not supposed to talk about that.”

Oh well.

Of course these days, that technology’s way out of date for marital espionage. You can’t make a beagle carry a cellphone, but most wives cling to theirs 24/7. With the right software and a wi-fi connection, you can track her whereabouts in real time from your friendly neighborhood tavern, and even message her at the No-Tell Motel to say you’re stuck at the office.

Unless she’s also tracking you, in which case all bets are off.

Of course, my own wife’s phone is lost half the time. I sometimes wish the National Security Agency weren’t too busy monitoring guys calling 1-900-HotVirgins over in Yemen to help her find it.

But let’s get halfway serious about this NSA business. First, where has everybody been since 2006, when USA Today first revealed the existence of large scale NSA telephone data mining? That was objectionable in two big ways: the Bush White House acted unilaterally, without the court supervision required by law, and it was also indulging in warrantless wiretaps.

Congress fixed that in 2008, permitting statistical analysis of telephone traffic, but requiring both ongoing FISA Court oversight and search warrants for actual eavesdropping. After his customary tap-dancing, Sen. Barack Obama supported the bill. Hearing no announcement that the Obama White House had canceled the program, a person would have to be awfully naïve to imagine NSA had gone out of business.

The court order produced with a great flourish by Glenn Greenwald and The Guardian mainly confirmed that the system appears to be working as designed. So why the hyperventilating? The way some people are carrying on, you’d think the KGB or East German Stasi had set up shop in the White House—which definitely isn’t how people would act if they really feared tyranny.

Greenwald himself rather specializes in hyperventilation. It’s a rare terrorist attack that isn’t immediately followed by a Greenwald essay pointing out that Norwegian civilians or off-duty British soldiers  are no less legitimate targets than Pakistani children — true enough in an abstract moral sense, but of vanishing political usefulness.

However, when a reporter begins a profile by praising his own work as “one of the most significant leaks in US political history,” a skeptic is apt to wince. Maybe it’s just me, but I wouldn’t have taken Edward Snowden (or any single source) at face value. There are plenty of clues even in The Guardian hagiography that not everything may be exactly as it seems. Running to China seeking freedom?


Then there’s this: Any NSA analyst “at any time can target anyone, any selector, anywhere,” Snowden said. “I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant to a federal judge to even the president if I had a personal email.”

Now me, I don’t think NSA computer tech can wiretap a Federal judge any more than I think a bank teller can transfer the judge’s bank account to her boyfriend without getting caught. Sure enough, Robert Dietz, a former CIA and NSA lawyer, told the Los Angeles Times the claim was “complete and utter” falsehood.

“First of all, it’s illegal,” he said. “There is enormous oversight. They have keystroke auditing. There are, from time to time, cases in which some analyst is [angry] at his ex-wife and looks at the wrong thing and he is caught and fired.”

Which is basically where we came in. Fourth Amendment purists are living in a dream world. Neither cellphones nor lunatics using airliners as weapons existed in Ben Franklin’s day. If you want privacy as defined in the 18th century, it’s easy: no phones, no Internet (and certainly no Facebook or Twitter) no credit cards or bank accounts, no EZ-Pass, no nothing.

But if you want government to have any chance to defeat mass-casualty terror attacks, surrendering raw phone data isn’t much of a concession. Besides, there are far more efficient ways of targeting enemies of the state than trying to make something of who they’ve talked to on the phone.


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