Jul 072013
 

There is so much to say about the emerging news about the data capture programs run by the NSA it’s hard to know where to begin. Part of the issue is that there are multiple programs and multiple statutes in play, and details about everything are continuing to emerge, which makes analyzing any respective legality complicated. Ostensibly some of these programs may in fact be “legal” under some of these statutes, although there are credible arguments that many of these programs transcend even what these laws might purport to authorize.

But even if these programs are consistent with either their enabling statutory language or previous Fourth Amendment case law, it is not at all clear that they are consistent with either the spirit or bare language of the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Over time, on a case by case basis specific to the facts before them, courts have whittled away at what we might understand the Fourth Amendment to protect. Which is unfortunate, because on its face it would appear to protect quite a bit of personal privacy from government intrusion, except under very narrow circumstances. But as we learn more about these surveillance programs we see how, even if “legal,” they intrude upon that privacy, and in a way that essentially destroys all vestiges of it for everyone, criminal (or foreign) or not.

Which is what the rest of this post intends to focus on, albeit in a more humorous than purely analytical manner. But such flippancy shouldn’t discredit its overall point, and indeed, humor is often an excellent vehicle for illustrating policy shortcomings. In this case what follows highlights the problem with Section 215 of the Patriot Act, a post-9/11 law that allows government authorities to access, without a warrant and only with the questionable oversight of the itself apparently unaccountable Foreign Intelligence Surveillance Court, all sorts of “tangible things.” By accounts, it seems the NSA has used this provision to underpin at least one of its programs.

Because everything this court does is shrouded in secrecy, no one knows exactly what “tangible things” applies to. But we can make some reasonable suppositions, and the following articulates a few of them. Sung to the tune of The Sound of Music’sMy Favorite Things,” here is a modern update:

“My Tangible Things.”

Digital photos and movies of kittens
Ebooks that I’ve read and writings I’ve written
Torrents of email my ISP brings
These are a few of my tangible things

Cookies and beacons and Photoshop doodles
Cell calls and voip calls and searches with Google
Web browsing hist’ry and cloud-based storings
These are a few of my tangible things

Data that’s sitting in unsalted hashes
Logfiles that show when my laptop it crashes
GPS footprints and TCP pings
These are a few of my tangible things

When my job bites
When some news stings
When I’m feeling sad
I simply relate all my thoughts and feelings
For the NSA to grab

Perhaps not what Rogers and Hammerstein had in mind, but likely not the Founding Fathers’ either.

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