Blown To Bits

Dragnet Surveillance

Friday, September 19th, 2008 by Harry Lewis

That’s the term the Electronic Frontier Foundation is using to describe the data collection methods it yesterday sued the federal government to stop. Dragnet fishing involves scooping up everything, and throwing back everything except the particular fish you were looking to catch; dragnet surveillance is collecting data on everyone, and then sifting through it to identify the bad guys. Here, from the lawsuit against the National Security Agency, the President, and various other parties, is a summary description of what it alleges the government is doing.

8. The core component of the Program is Defendants’ nationwide network of sophisticated communications surveillance devices, attached to the key facilities of telecommunications companies such as AT&T that carry Americans’ Internet and telephone communications.

9. Using this shadow network of surveillance devices, Defendants have acquired and continue to acquire the content of a significant portion of the phone calls, emails, instant messages, text messages, web communications and other communications, both international and domestic, of practically every American who uses the phone system or the Internet, including Plaintiffs and class members, in an unprecedented suspicionless general search through the nation’s communications networks.

10. In addition to using surveillance devices to acquire the domestic and international communications content of millions of ordinary Americans, Defendants have unlawfully solicited and obtained from telecommunications companies such as AT&T the complete and ongoing disclosure of the private telephone and Internet transactional records of those companies’ millions of customers (including communications records pertaining to Plaintiffs and class members), communications records indicating who the customers communicated with, when and for how long, among other sensitive information.

The “Program” is what President Bush called the “Terrorist Surveillance Program,” instituted shortly after the 9/11 attacks and only revealed in 2005. The plaintiffs are various ordinary citizens who object to the NSA reading their ¬†mail and listening to their phone calls without a warrant or probable cause, as provided in the Fourth Amendment. There is, I expect, no reason any of them should be under suspicion of plans to terrorize anyone.

I had an argument over dinner last night with a staunch Republican who was convinced that one of the reasons to vote for McCain was that McCain would appoint strict constructionists to the Supreme Court. I asked him if he thought a strict interpretation of the Fourth Amendment would allow this sort of surveillance of citizens, or the warrantless search and seizure of laptops at the border about which I wrote earlier. His non-response was that this sort of thing had been going on for years, even under Clinton. I am amazed that conservative originalists so readily forget that the Constitution was premised on the realization, based on hard experience, that governments can’t be trusted. The restraints on government power are as much a part of the Constitution as their favored interpretation of the Tenth Amendment.

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