Skip to main content

View Diary: Press, polls wrongly conflate Bush and Obama NSA surveillance (189 comments)

Comment Preferences

  •  The ACLU will lose ... (5+ / 0-)

    ... impressively in court.

    For a Fourth Amendment privacy case, the Supreme Court will apply a strict scrutiny review, which is the toughest test used to evaluate the constitutionality of a state action. It requires that the government show a compelling interest and a narrowly-tailored remedy. So, first off, what could possibly suffice in this scenario as a compelling government interest?

    Stopping terrorism. There is no doubt that the Supreme Court will find that stopping terrorism is a compelling governmental interest.

    Next, the Supreme Court will determine whether the process is narrowly-tailored to achieve the goal of stopping terrorism. In this case, the government has allegedly culled phone numbers not immediately distinguishable as belonging to any individual, with no other personal information attached, such as a name, social security number or address. Just plain old phone numbers.

    So, although the government coulld've cast a much wider net to include other personal data, it is just a phone number. That seems to be narrowly-tailored to me to protect privacy rights of American citizens and Americans living abroad. There is no identification of an individual, and, according to the law, no attempt at identifying any American citizen or American abroad.

    When you apply the strict scrutiny test that the Supreme Court would use, you find, at least based on the information we have now and the alleged fact that the NSA program requires anonymous phone numbers to achieve the compelling governmental interest, the application of the law will be held to be constitutional.

    In fact, the Supreme Court might go so far as to note that the government not only has the power but the duty to protect American citizens if by doing so it can avoid unconstitutional invasions of privacy. If the state didn't attempt to do what it had every right and power to do to protect the people, wouldn't that government be negligent?

    Finally, aren't these phone numbers available to the government elsewhere? There are, in fact, databases that include telephone numbers as well as the names of the people to whom the telephone numbers belong and even their addresses so you can drive right up to their front door. We call those databases phone books.

    I would tip you, but the man took away my tips.

    by Tortmaster on Tue Jun 11, 2013 at 05:09:11 PM PDT

    •  Oy. (0+ / 0-)

      Strict scruting also requires there be no other less intrusive methods available.  As an alternative, they could get subpoenas for the actual suspects.

      In fact, the Supreme Court might go so far as to note that the government not only has the power but the duty to protect American citizens if by doing so it can avoid unconstitutional invasions of privacy. If the state didn't attempt to do what it had every right and power to do to protect the people, wouldn't that government be negligent?
      Absurd.
      Finally, aren't these phone numbers available to the government elsewhere? There are, in fact, databases that include telephone numbers as well as the names of the people to whom the telephone numbers belong and even their addresses so you can drive right up to their front door. We call those databases phone books.
      Which makes your pretense that phone numbers are anonymous seem pretty ridiculous, doesn't it?  The NSA can fill in the blank with the push of a button.  But a phone book doesn't tell the NSA where you were at 11:30 last night.  Cell phone metadata does.

      What are you doing to fight the dangerous and counterproductive error of treating dirtbag terrorist criminals as though they were comic book supervillains? I can't believe we still have to argue this shit, let alone on Daily Kos.

      by happymisanthropy on Tue Jun 11, 2013 at 07:14:30 PM PDT

      [ Parent ]

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site