Tag: James Sensenbrenner

A Data Retention Mandate? NO

The Wall Street Journal reports that a panel convened by the president to review the National Security Agency’s programs will recommend that “the records of nearly every U.S. phone call now collected in a controversial NSA program be held instead by the phone company or a third-party organization.” That recommendation is a non-starter.

Mandatory data retention has been floated for years using the most politically appealing rationale, child predation. In 2007, we characterized the idea as costly, outsourced surveillance, and Congress has consistently denied that power to the government. In fact, child protection bills containing data retention mandates were introduced in several Congresses but only passed once provisions deputizing communications providers into government surveillance were stripped out. Randy Barnett and I made this point in our brief urging the Supreme Court to take up the NSA’s mass surveillance of Americans’ telephone calling.

“Congress has declined to institute mandatory data retention laws because the costs, risks, and privacy consequences for innocent citizens outweigh their law enforcement and security benefits,” we wrote. “The Verizon order reverses this Congressional policy by requiring a telecommunications provider to turn all data over to the government for retention by the National Security Agency.”

How ironic it would be if the NSA’s illegal excesses delivered it a victory on a policy initiative that it lost years ago. Is secretly violating Americans’ communications privacy really rewarded by a policy requiring the violation of Americans’ communications privacy?

Rep. Jim Sensenbrenner (R-WI), who claims authorship of the USA-PATRIOT Act, came to Cato two months ago to lament the NSA’s use of that law for domestic spying he did not intend the NSA to have. In the past, he has said that data retention “runs roughshod over the privacy rights of people who use the Internet for thousands of lawful purposes.” Assumedly, he believes the same as to people’s use of the phone, and he will continue working with other privacy-minded legislators to relegate data retention mandates to the dustbin of history.

In Its Bubble of Secrecy, the National Security Bureaucracy Redefined Privacy for Its Own Purposes

Rep. Jim Sensenbrenner (R-WI) is nothing if not a security hawk, and this weekend he decried the NSA’s collection of all Americans’ phone calling records in a Guardian post entitled, “This Abuse of the Patriot Act Must End.” On Thursday last week, he sent a letter to Attorney General Eric Holder demanding answers by Wednesday.

It also became apparent over the weekend that the National Security Agency’s program to collect records of every phone call made in the United States is not for the purpose of data mining. (A Wall Street Journal editorial entitled “Thank You for Data Mining” was not only wrong on the merits, but also misplaced.) Rather, the program seizes data about all of our telephone communications and stores that data so it can aid investigations of any American who comes under suspicion in the future.

Details of this program will continue to emerge–and perhaps new shocks. The self-disclosed leaker–currently holed up in a Hong Kong hotel room waiting to learn his fate–is fascinating to watch as he explains his thinking.

The court order requiring Verizon to turn over records of every call “on an ongoing daily basis” is a general warrant.

The Framers adopted the Fourth Amendment to the Constitution in order to bar general warrants. The Fourth Amendment requires warrants 1) to be based upon probable cause and 2) to particularly describe the place to be searched and the persons or things to be seized. The leaked warrant has neither of these qualities.

A warrant like this would never be adopted in an open court system. With arguments and decisions available to the public and appeals going to public courts, common sense and simple shame would foreclose suspicionless data-gathering about every American for the benefit of future potential investigations. 

Alas, many people don’t believe all that deeply in the Constitution and the rule of law when facile promises of national security are on offer. It is thus worthwhile to discuss whether this is unconstitutional law enforcement and security practice would work. President Obama said last week, “I welcome this debate and I think it’s healthy for our democracy.”

Terror Arrest Does Not Justify REAL ID Revival

The zeitgeist on Capitol Hill in Washington, D.C. may be for limited, constitutional government, but that doesn’t mean that big-government conservatives aren’t going to use the reprieve voters gave Republicans in the fall to once again advance big-government goals. On Monday, House Judiciary Committee Chairman Lamar Smith (R-Texas), Homeland Security Committee Chairman Peter King (R-N.Y.) and Crime, Terrorism, and Homeland Security Subcommittee Chairman James Sensenbrenner (R-Wisc.) sent a letter to Department of Homeland Security Secretary Janet Napolitano encouraging her to fully implement our national ID law, the REAL ID Act of 2005.

The deadline for state implementation of the national ID law lapsed nearly three years ago. Half the states in the country have affirmatively barred themselves from implementing REAL ID or they have passed resolutions objecting to the national ID law. But the Department of Homeland Security has repeatedly extended the deadline and reduced the compliance bar to suggest progress on the flagging national ID effort. With another faux implementation deadline looming in May, the DHS is almost certain to issue a blanket extension of the compliance deadline again soon.

Smith, King, and Sensenbrenner don’t want that to happen. They cite the arrest of Khalid Aldawsari in Texas as a reason for “immediate implementation of REAL ID.” 

According to the government’s affidavit, Aldawsari planned to acquire a false birth certificate and multiple false drivers licenses, assumedly to assist in his getaway after executing his formative bombing plans. But if you read the affidavit, you can see just how remote and speculative his use of any false identification is compared to the real acts that go into his plans. You can also see the web of identifiers that law enforcement use to effectively track and surveil their targets, including phone numbers, license plates, physical addresses, immigration records, email addresses, and Internet Protocol addresses. Aldawsari was nowhere near slipping through the net, and having a false driver’s license would have made no difference after a North Carolina chemical supply company reported to the FBI his suspicious attempt to purchase the chemical phenol. Nor would false identification have made a difference had he succeeded in an attack of any significance.

Having a national ID is the fantastical way of addressing the fantastical part of Aldawsari’s alleged plot. Thankfully, the real plot was disrupted using real law enforcement techniques, which include the reporting of suspicious behavior and narrowly targeted, lawful surveillance.