So anyways it's a pretty good piece, and probably a needed corrective for the recent freakout that happened when journalists realized they'd be subject to the same monitoring as everyone else. Plus I'm a sucker for the "shut up everyone, I've actually been paying attention for more than five minutes" type of crotchety opinion piece. I'm more worried than he seems to be, though.
Here's the key part for me:
The question is more fundamental: Is government accessing the data for the legitimate public safety needs of the society, or are they accessing it in ways that abuse individual liberties and violate personal privacy — and in a manner that is unsupervised.
And to that, the Guardian and those who are wailing jeremiads about this pretend-discovery of U.S. big data collection are noticeably silent. We don’t know of any actual abuse. No known illegal wiretaps, no indications of FISA-court approved intercepts of innocent Americans that occurred because weak probable cause was acceptable. Mark you, that stuff may be happening. As is the case with all law enforcement capability, it will certainly happen at some point, if it hasn’t already. Any data asset that can be properly and legally invoked, can also be misused — particularly without careful oversight. But that of course has always been the case with electronic surveillance of any kind.
Keep in mind that the FISA court was created as a means of having some definitive oversight into a world that previously had been entirely unregulated, and wiretapping abuses by the U.S. executive branch and by law enforcement agencies were in fact the raison d’etre for the creation of FISA and a federal panel of judges to review national security requests for electronic surveillance. Is it perfect? Of course not. Is it problematic that the court’s rulings are not public? Surely.
But the fact remains that for at least the last two presidential administrations, this kind of data collection has been a baseline logic of an American anti-terrorism effort that is effectively asked to find the needles before they are planted into haystacks, to prevent even such modest, grass-rooted conspiracies as the Boston Marathon Bombing before they occur.
Simon's arguing that the program isn't the Big Brother that it's been painted as because 1) it is collecting records of calls rather than their content, 2) judicial precedent has established a higher standard of evidence for actually listening in, and 3) FISA provides a pretty explicit statutory constraint specifically for federal agencies that want to monitor electronic communication, even if it's not perfect.
The problem is that I don't necessarily trust that the FBI/NSA will always abide by those constraints. Yeah yeah, slippery slope. But within the last decade we had an administration that basically ignored FISA and implemented wiretaps without any warrants, justifying it with some
very specious legal arguments about the AUMF, if I'm remembering this right.
Basically the federal government has a long, shitty record when it comes to wiretaps, especially when national security issues get tangled up with domestic law enforcement. Thanks to John Yoo and buddies, we can't just chalk it all up to decades-old Cold War nuttiness. Plus the political incentives are all against civil liberties. Plus the Fourth Amendment's generally been taking a beating in the courts. Plus there's a massive lack of oversight or transparency, abetted by a public and a Congress who really don't want to actually sort this out explicitly. Plus I'm pretty sure there have been zero prosecutions for FISA violations that took place under Bush.
I can believe the program is generally behaving as it should right now, but I think this is an area where you don't just need a law keeping it in check, but assurances that there's a pretty robust implementation of that law to avoid backsliding.