Out on a Limb

Daily Best of the Web   —   Posted on June 7, 2013

The following is an excerpt from OpinionJournal.com’s “Best of the Web” written by the editor, James Taranto.

Out on a Limb
“Monsanto Co., the world’s largest seed company, said experimental wheat engineered to survive Roundup weedkiller may have gotten into an Oregon field through an ‘accidental or purposeful’ act.”–Jack Kaskey, Bloomberg, June 5

They Were Luckey. Then Again, Maybee Not.
“Fire Crews Rescue 2 Men Trapped on Water Tower in Maybee, MI”–headline, WTVG-TV website (Toledo, Ohio), June 5

Snoopy, Come Home!
A little perspective is in order on the news, reported in London’s Guardian by Glenn Greenwald, that “the National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.”

The “secondary order,” issued by Judge Roger Vinson of the Foreign Intelligence Surveillance Court (also known as the FISA court, for the Foreign Intelligence Surveillance Act), is the only document that Greenwald appears to have obtained. Thus observers who lack a security clearance can do no more than speculate as to its context. Here are two bits of speculation: First, it’s likely that other major carriers are subject to such orders, which would mean that you couldn’t shield your information from the government by dumping your Verizon plan. Second, it’s possible that other orders limit the government’s use of the data. It would be premature to conclude that the NSA (or the FBI, which applied for the order) is engaged in IRS-like abuses of power.

(An interesting aside: Vinson, who also serves as a trial judge in the Northern District of Florida, is the same man who struck down ObamaCare in its entirety in 2011.)

The wide-ranging request for information does not appear to be anything new to the Obama administration. As The Wall Street Journal reported in 2008:

According to current and former intelligence officials, the spy agency [i.e., the NSA] now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called “transactional” data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA’s own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge’s approval when a link to al Qaeda is suspected.

In a January 2007 letter to Chairman Patrick Leahy and then-ranking then-Republican Arlen Specter of the Senate Judiciary Committee, then-Attorney General Alberto Gonzales disclosed that the administration and the FISA court had reached an agreement to bring the Terrorist Surveillance Program under the court’s jurisdiction.

The Verizon Vinson order was issued April 25, which has led some to infer that it was connected with the Boston bombing investigation. That seems unlikely. The declassification date was April 12, 2038, which suggests that the legal wheels were in motion by April 12 of this year, three days (or one business day) before the bombing. The New York Times reports that “Senator Dianne Feinstein of California and Senator Saxby Chambliss of Georgia, the top Democrat and Republican on the Intelligence Committee, said the order appeared to be a routine reauthorization as part of a broader program that lawmakers have long known about.” 

Most important, the order does not authorize the FBI or NSA to wiretap anybody. As per the Fourth Amendment, that requires a search warrant, issued upon probable cause. The distinction between wiretapping and the collection of what is now known as “metadata”–in brief, call logs–was set forth by the U.S. Supreme Court in the 1979 case of Smith v. Maryland.

Michael Lee Smith robbed a Baltimore woman and subsequently menaced her, both by phone and by driving past her house. “Police spotted a man who met [the victim’s] description [of the suspect] driving a 1975 Monte Carlo in her neighborhood.” They ran the plate and identified the owner. “The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home.”

Smith appealed his conviction, arguing that the pen register constituted an unreasonable search in violation of the Fourth amendment. In a 5-3 opinion written by Justice Harry Blackmun, the court rejected his claim–on the ground not that the search was reasonable but that it wasn’t a search at all:

Given a pen register’s limited capabilities . . . petitioner’s argument that its installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud, and preventing violations of law.”

That is why, to take another recent example, the Justice Department needed only a subpoena, not a warrant, to obtain phone logs from Associated Press reporters. Yet whatever the merits of Blackmun’s decision in 1979, it seems outdated in 2013, when electronic communication devices are ubiquitous and function very differently than in the olden days of Smith v. Maryland.

How many people under 30 today even recognize the concept of “long-distance (toll) calls”? Those were calls for which you were charged by the minute. Your monthly bill would include an itemized list of calls with the number and city you were calling, the time and duration of the call and the fee.

To be sure, Blackmun did not hold that only long-distance calls were subject to warrentless law-enforcement discovery: “We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.” But his argument was that because customers understood the phone company compiled such lists, there was no reasonable expectation of privacy for any number dialed. That premise now seems highly dubious.

Further, 1979 predated the introduction of caller ID, which changes the expectation of privacy. Under normal 21st-century circumstances, the recipient of a phone call knows who’s calling (or at least from what number) before he picks up. But the caller also has the power to conceal his number, either by dialing a code or by making it the default on his phone account.

It seems to us there is a strong case for revisiting Smith v. Marylandin light of technological developments since. At the same time, one should resist any urge to pile on the FISA court for issuing a legally sound order in the furtherance of what we have no reason to doubt is a vital antiterror program.

Greenwald is hardly an objective reporter here; he has been a vigorous and consistent opponent of the war on terror. In his consistency he compares favorably to many others on the left, who’ve shrugged off Obama administration actions that would have triggered paroxysms of outrage when George W. Bush was president. But his consistency is in the service of what could prove a dangerous agenda.

If Greenwald’s aim is to undermine political support for America’s antiterror efforts, he could hardly have chosen a better means, or better timing. Almost everybody in America is a customer of either Verizon or a competitor; we can all relate to the idea of having the government trawl through our records.

With the Obama administration under fire for genuine abuses of power, trust in the government is at a low ebb. Undeniably an abusive federal government is a threat to liberty. But it isn’t the only threat.

We’re All Fox News Now (note: this excerpt is from the 5.28 BOTW archives)
Hey, kids! What time is it? “TIME TO GO: HOLDER OK’D PRESS PROBE,” shouted the always subtle homepage of the Puffington Host last Thursday evening. It was in response to the news, broken by NBC, that Attorney General Eric Holder had participated in “discussions” about “a controversial search warrant for a Fox News reporter’s private emails.” That’s in contrast with the Associated Press phone-log subpoena case, from which Holder told Congress he had recused himself.

The New York Times’s reaction, while not as breathless, was more dramatic. The paper’s editorial appeared a week ago tomorrow–before Holder’s involvement had publicly emerged–under the headline “Another Chilling Leak Investigation.” The editorial was straightforward and reasonably argued. That may not sound like a great compliment, but this is the New York Times editorial page we’re talking about.

The editorial was remarkable as much for what it didn’t say as for what it did. There were no snide asides about Fox News, or qualifications along the lines that “even Fox” has First Amendment rights. Nor did the Times editors take any shots at George W. Bush, congressional Republicans or any other familiar antagonist. They simply defended Fox News’s right to engage in news-gathering and denounced the Obama administration’s assault on it.

One imagines this isn’t the response the administration was expecting. The Daily Beast reports that Holder has been “particularly stung by the leak controversy” because it runs counter to “his image of himself as a pragmatic lawyer with liberal instincts and a well-honed sense of balance–not unlike the president he serves.” The Beast quotes “a friend who asked not to be identified”: “Look, Eric sees himself fundamentally as a progressive, not some Torquemada out to silence the press.” 

That’s quite a recommendation, isn’t it? But of course these days a good “progressive” hates Fox News. Our suspicion is that Holder would have been a lot more circumspect about going fishing in, say, a New York Times reporter’s inbox, or naming a Times reporter as a co-conspirator in an espionage case, as the Justice Department did to Fox’s James Rosen.

Why the surprising show of solidarity–especially from the Times, which has labored mightily to rationalize away the other big Obama scandals, around Benghazi and the Internal Revenue service? Because they realize the Obama administration’s days are numbered (the number is 1,333 as of today). Even if Holder’s justice department wouldn’t dream of going after the New York Times–and the AP story calls that assumption into question–a future administration might not be so afraid of being seen as Torquemada. So we’re all Fox News now.

In what appears to have been an effort to shore up his political base, President Obama in a speech last week “called on Congress to pass a media shield law to guard against government overreach.” As a Chicago Tribune editorial points out, such a law, which would protect journalists from having to testify about confidential sources, is irrelevant to the AP and Fox News cases, which involve government searches.

In this columnist’s view, the shield law is a bad idea for another reason: By granting a special legal privilege to journalists, it would make them beholden to the federal government. For the past 4½ years there has been an overwhelming media bias in favor of the party and administration in power–an administration which now seems to be running roughshod over the Constitution.

This column disapproves equally of the administration’s abuse of the media and of ordinary citizens via the IRS. But we may have the former to thank for such aggressive coverage as we have seen of the latter. The media will be less vigilant about government abuses if they are promised immunity from such abuses. The Justice Department’s treatment of James Rosen was outrageous, but getting the New York Times to publish an honest editorial is nothing to sneeze at.

For more “Best of the Web” click here and look for the “Best of the Web Today” link in the middle column below “Today’s Columnists.