--- From: "Peter Swire" <peter@private> To: "'Declan McCullagh'" <declan@private> Subject: RE: [Politech] DoJ announces "Justice Intelligence Coordinating Council" Date: Wed, 25 Feb 2004 21:56:27 -0500 Declan: Having a Coordinating Council of this sort could be a helpful step, creating an institution that has oversight of intelligence activities and carefully considers the legal and civil liberties issues that arise from intelligence. It is the sort of institutional check and balance that we need more of. Unfortunately, the comforting words in the press statement don't turn out to be very reassuring. The statement says: "The Department Is Committed to Exercising Its Intelligence Functions within the Bounds of the Constitution, Laws and Guidelines that Protect the Privacy of Law-Abiding Americans." Let's take those one at a time. The Constitution. The Supreme Court has basically said there is no "reasonable expectation of privacy" in records that are stored by third parties, such as your bank or phone company. So the 4th Amendment warrant requirement currently does not apply to the vast array of digitally stored records. Next, there may be widespread caching of VOIP and other phone conversations -- so stored records might come to phone calls themselves, eliminating the "reasonable expectation of privacy" even for wiretaps. I have a new law review article called "Katz Is Dead. Long Live Katz" on this subject, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=490623. Laws. This is the realm of the Patriot Act. Section 215 says there can be secret, binding searches for any record or other tangible object. It is a criminal violation even to tell that such a search has occurred. Plus, the broader scope for National Security Letters in Section 505 allows the government to secretly get many records without any order from a judge. In addition, the Administration has sought to expand the scope of NSLs, including for use by the CIA and the Pentagon to search domestic records. See Eric Lichtblau & James Risen, "Broad Domestic Role Asked for C.I.A. and the Pentagon," N.Y. Times, May 2, 2003. Guidelines. Attorney General Levi in 1976 (under President Ford) issued substantial guidelines that, among other things, limited the ability of the FBI to open investigations based on protected First Amendment activities. Attorney General Ashcroft in 2002 very substantially cut back on these restrictions. There is a careful comparison by Jim Dempsey and Jerry Berman at http://www.cdt.org/wiretap/020626guidelines.shtml. In short, it sounds very good to have protections by "the Constitution, the laws, and the Guidelines." The protections in all three have shrunk substantially in recent years, though, so the reassuring language deserves a large grain of salt. We likely should have the Coordinating Council as well as better actual protections in the Constitution, the laws, and the Guidelines. Peter Prof. Peter Swire Moritz College of Law of the Ohio State University John Glenn Scholar in Public Policy Research Formerly, Chief Counselor for Privacy in the U.S. Office of Management & Budget (240) 994-4142, www.peterswire.net _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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