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Constitutional Disconnect


According to the NYTimes (and previously USAToday and CNet’s reporting), the Attorney General has been meeting with representatives of the major internet provider companies to persuade them to keep records of all usage by their members so that law enforcement will be able to comb through those records at a later time.

Now I know, you are sitting there saying to yourself, "Well, maybe they could catch some sex pervert who was trying abscond with some kid." or "Maybe they could have caught up with the hijackers from 9/11 that way."  But that isn’t what this is about.

This is the after-the-fact proof — after the crime has been committed — that you use to put someone away.  And how do they identify the need for that?  Does the NSA’s domestic spying program (without a warrant as required by the Fourth Amendment) ring any bells?

The Justice Department is asking Internet companies to keep records on the Web-surfing activities of their customers to aid law enforcement, and may propose legislation to force them to do so.

The director of the Federal Bureau of Investigation, Robert S. Mueller III, and Attorney General Alberto R. Gonzales held a meeting in Washington last Friday where they offered a general proposal on record-keeping to a group of senior executives from Internet companies, said Brian Roehrkasse, a spokesman for the department. The meeting included representatives from America Online, Microsoft, Google, Verizon and Comcast….

The Justice Department is not asking the Internet companies to give it data about users, but rather to retain information that could be subpoenaed through existing laws and procedures, Mr. Roehrkasse said….

The department proposed that the records be retained for as long as two years. Most Internet companies discard such records after a few weeks or months.In its current proposal, the department appears to be trying to determine whether Internet companies will voluntarily agree to keep certain information or if it will need to seek legislation to require them to do so.

The request comes as the government has been trying to extend its power to review electronic communications in several ways. The New York Times reported in December that the National Security Agency had gained access to phone and e-mail traffic with the cooperation of telecommunications companies, and USA Today reported last month that the agency had collected telephone calling records. The Justice Department has subpoenaed information on Internet search patterns — but not the searches of individuals — as it tries to defend a law meant to protect children from pornography.  (emphasis mine)

Child pornography cases are difficult to track, in large part because a lot of the chats that occur between predators and kids occur in IM windows rather than in an open chat room, and it can take quite a while to reconstruct everything on a computer that someone has attempted to wipe prior to arrest.  It can also be very difficult to trace a photograph taken of a single child back to its origin, but law enforcement tries to do so for the sake of each and every child involved in the often hundreds and hundreds of photographs that you can glean for a single, seized hard drive from a sexual pradator. 

Having seen the results of child sexual abuse first hand — from tiny children on through to adults who had been victimized as kids — I can tell you that no crime makes my blood boil more than this.

But from what the NYTimes is reporting, the DoJ and the FBI are using kiddie porn as a sort of "bait and switch" with the internet providers — an incentive, if you will, to get them to go along with this program, because no one who has spent time looking at images involved in child pornography can ever walk away from them unmoved or unangered.

An executive of one Internet provider that was represented at the first meeting said Mr. Gonzales began the discussion by showing slides of child pornography from the Internet. But later, one participant asked Mr. Mueller why he was interested in the Internet records. The executive said Mr. Mueller’s reply was, "We want this for terrorism."

At the meeting with privacy experts yesterday, Justice Department officials focused on wanting to retain the records for use in child pornography and terrorism investigations. But they also talked of their value in investigating other crimes like intellectual property theft and fraud, said Marc Rotenberg, executive director of the Electronic Privacy Information Center in Washington, who attended the session.

"It was clear that they would go beyond kiddie porn and terrorism and use it for general law enforcement," Mr. Rotenberg said.

Kate Dean, the executive director of the United States Internet Service Provider Association, a trade group, said: "When they said they were talking about child pornography, we spent a lot of time developing proposals for what could be done. Now they are talking about a whole different ball of wax."

At the meeting with privacy groups, officials sought to assuage concerns that the retention of the records could compromise the privacy of Americans. But Mr. Rotenberg said he left with lingering concerns.

"This is a sharp departure from current practice," he said. "Data retention is an open-ended obligation to retain all information on all customers for all purposes, and from a traditional Fourth Amendment perspective, that really turns things upside down."

My husband could tell you that, when it comes to law enforcement matters, my attitude is generally a fairly hard-lined one: you do the crime, you do the time, period. And under normal circumstances, my reaction on something like this would be to consider the advantages that it would provide to law enforcement if used properly — including being able to back-track through someone’s e-mail and chat information for clues after a disappearance or some foul play. (Which you can do to some extent already, just going through the hard drive on the computer itself, btw, but apparently this is about much more than single-user searching.)

But with the Bush Administration and its disconnect from the Constitution in so many ways, I fear the mis-use of this information.  Say you are driving from your own home cross country to visit friends.  You stop in an internet cafe, log in to check your e-mail, a news story catches you eye about something going on in Iraq, you do a search for more information because you have a buddy stationed over there — something you’ve done a number of times before because your friend is stationed in a hot area in Iraq — and a few days later your friends are wondering why you haven’t gotten to their house.  No one knows where you are.  You are allowed no contact with anyone, including an attorney — nothing.  Because you’ve been pulled into protective custody as a potential material witness or person of interest — because of an internet search that happened to match up with something for which the government was looking at the time.

Think it can’t happen here?  Two words for you:  Jose Padilla.  Guilty or not of any crime, the man was held for close to three years with no charges ever being filed — and he is an American citizen and was picked up on American soil by American law enforcement agents.

The Constitution is not some mere convenience, that you sometimes apply and sometimes choose to ignore when it suits you.  The same for the laws in this nation.  They are to apply to everyone at all times.  But the Bush Administration continues to skirt the requirements for lawful arrest, privacy issues, Fourth Amendment search and seizure protections and many, many others because it finds itself unable to reconcile its need for complete and total control and power over all information and the individual rights and liberties of the citizens who live here.

When we change how we function as a free society, and turn to a more totalitarian approach to law enforcement that has ever-shrinking respect for individual liberty, we become the very thing that we say we are fighting against.  By becoming a totalitarian state ourselves, we are allowing Osama Bin Laden to win.  Without him having to expend any more energy other than to sit back in some cave in Pakistan and read the news of what the Bush Administration is doing all on its own to dismantle the checks and balances, the firm commitment to liberty, that has ensured our nation’s balance toward freedom and democracy for more than 200 years.

The thing that may scuttle this entire proposal is the cost for the internet companies involved in the negotiations.  Maintaining records for every single internet transaction for every single user for a two-year period would be a staggering cost — and that may be what pulls this back in the end if campaign contributors begin to balk because their bottom line is being squeezed.

I’m sure not holding out for any oversight or accountability being demanded by the Rubber Stamp Republican Congress of the Bush Administration on this one.  So let’s hear it for capitalism — and let’s hope that the need to make a buck is more persuasive than a wholesale shift in how our individual freedoms are devalued in favor of a wholesale grab in order to bolster whatever case the government chooses to make in the moment.

This all comes down to a matter of trust and, the bottom line for me and I suspect for a lot of you as well:  I don’t trust the Bush Administration to do the right thing with this much power over this kind of information.  Law enforcement measures must be tempered, always, with the concern for justice, fairness and individual rights.  The Bush Administration has shown over and over again that it does not deserve that trust.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com