Today we learned from the Guardian newspaper that Federal judges and Attorney General Eric Holder signed off on an NSA request to make use of information it “inadvertently” collected on Americans without a warrant. According to the paper, the NSA was given permission to retain our intercepted information for a broad and vaguely defined variety of reasons, including “if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.” That could cover almost anything.
I think the idea is that all that is collected without a warrant is metadata; information about the time, duration, origins and destination of calls. Not content. No on is “listening in” unless the authorities suspect wrongdoing with respect to other activities and gets a judge to issue a warrant to drill down and review that individual’s metadata.
It’s an updated version of the wiretapping authority that law enforcement has had, constitutionally, for years. Except that no criminals conduct their activities on land lines anymore - they do so with cell phones and by other electronic means.
As I’ve said it before: if this nation wants to adopt your view of the sanctity and privacy of this metadata, then we have to give up this notion that we can stop terrorist acts before they happen. We have a choice to make, not an abstract choice like what Ben Franklin warned us against, but the specific choice whether to absorb, in the name of our personal privacy, the occasional random and deadly terror attack the perpetrators of which may well be apprehended, but cannot be stopped.