"Rethinking the 4th Amendment"

"Rethinking the 4th Amendment"

by digby

Nothing to see here folks, move along

The National Security Agency pushed for the government to “rethink” the Fourth Amendment when it argued in a classified memo that it needed new authorities and capabilities for the information age.

The 2001 memo, later declassified and posted online by George Washington University’s National Security Archive, makes a case to the incoming George W. Bush administration that the NSA needs new authorities and technology to adapt to the Internet era.

In one key paragraph, NSA wrote that its new phase meant the U.S. must reevaluate its approach toward signals intelligence, or “SIGINT,” and the Constitution’s Fourth Amendment protections against unreasonable search and seizure.

“The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today,” it wrote. “The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment.”
Americans learned about one upshot of NSA’s philosophy this week when Washington acknowledged two of its subsequent surveillance programs: One that tracks the phone records of millions of Americans and one that accesses the servers of several major Internet companies, including Facebook, Google and Apple. The revelations were first reported by Britain’s Guardian newspaper and the Washington Post.

NSA’s memo continued: “Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws. But senior leadership must understand that today’s and tomorrow’s mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries.”

The quotes around “protected” appear in the original document.

Here's a link to the memo.

They may not have succeeded in "rethinking" the 4th Amendment (at least officially) but it's fairly clear they feel that all that old fashioned "due process" stuff is a relic because of the new technology. That reminds me of Joe Klein insisting that we need to privatize social security because everything's done on computers nowadays. In his case, it's just mindless drivel. I expect that the NSA might have a more nefarious goal.

In any case, the NSA, like all bureaucracies, wants more tools, more resources, more power to do its job. And they got them. But just because they think they need it, doesn't mean they really do. And from what we can gather about the private contracting business that feeds all this surveillance technology, the personal incentives are obvious: there's a lot of money to be made. If we have to give up one little archaic amendment to the bill of rights well --- price of doing business, amirite?

In fact, the corporate jargon in that document is overwhelming(even including the term "clients" and "customer set" which one might once have assumed were better known as "the taxpayers" or maybe even "citizens.") Since this came from the most secret departments in the government, I think that's very, very telling.

This document was generated under George W. Bush. And it's possible that the Obama administration has secretly made sure that this sort of "re-think" does not happen. But the secrecy involved in all this requires more trust in government than is remotely healthy in a democracy. Why, it's even possible that it's led an otherwise honest and forthright administration might end up enforcing Kafkaesque processes designed to keep the public from knowing what it has a right to know.


Repeat for the reading impaired: this happened under George Bush. President Obama may have ensured that this was deep sixed forever for all we know. The complaint is that the NSA is a huge agency with a lot of competing incentives which, like all bureaucracies, will seek to enhance its power. It is why we should be careful about doing it.