I got in to a discussion with SWIPIAW about the recent NSA call logging brouhaha. Initially I favored the Bush Administratiob because Old Media was openly lying about the issue (claiming that the content of communications was being tapped, not just envelope/billing information). How bad could it be if the openly salvo required obviously false lies? I read up on it a bit in the blogosphere, but didn’t see anything that affected my view1.
But SWIPIAW has actually lectured on this very subject and seemed more concerned. I explained my point of view and the evidence on which it was based, she said “could you e-mail me the cites?”. Having received orders from on high, I set out to do exactly that and found some things that shifted my viewpoint.
The first was SWIPIAW’s question about “tap and trace” or “pen register” warrants. The NSA call logging is basically a massive tap and trace operation, in which a log of calls is obtained but not any content of those calls. What SWIPIAW asked was “what’s the point of a tap & trace warrant if this is legal?”. That seems to me to be a very good question. Are tap and trace warrants now anachronisms, a remnant of a bygone era? I read the actual CALEA law text and that didn’t clear things up much. Everywhere it talks about getting a warrant, it also says “or other lawful authorization”. CALEA is a big deal in the network securityworld, but the law itself is about forcing compliance on the pipe owners and their equipment suppliers and says (as far as I can tell) very little about who or what is authorized to make use of these capabilities (that presumably being covered elsewhere). There is also apparently a loophole in the FISA act which permits government access to data used for billing records. That may well have been written when billing records weren’t so detailed, but today there’s no difference between a full call log and a billing record.
Other readings lead to me to believe that the law here is internally inconsistent with the legality of the call logging dubious but not obviously lacking. I expect an over-correcting backlash in Bush’s favor because of the initial overreach of Old Media, who I have seen time and again being simply unable to hold back from hyperbole and thereby deadening any mainstream reaction to the actual facts of the case. You’d think they were all being paid off by Rove.
At this point, I think that the problem is the unwillingness to publically defend its actions on the part of the Bush Administration. One can of course compare the civil liberty violations by the Bush Administration very favorably with previous war time administrations (such as Lincoln or FDR) but there’s only place the Bush Adminstration compares very badly and that is in public discussion. Lincoln and FDR took far greater powers, but use of those powers was open and well known. This kind of rules lawyering may seem clever and convenient now, but like Clinton’s fine grained grammar parsing, it detracts from the office and will come back to haunt both the Bush Administration and the nation. But this follows a pattern of Bush simply not defending his actions, right or wrong. I think that’s no small part of Bush’s dropping popularity, as supporters have to wonder why they’re being left to do the heavy rhetorical lifting.
This leaves me at a weak negative, but my overall feelings are lost in the noise of so many more important issues.
1 I won’t say I like having the federal government being able to get my call logs at will, but the fact is that the information is out there, it’s going to be available, and trying to stop this kind of thing is spitting in to the wind. I already assume that all of my e-mails are effectively public information and would be retrieved should I ever become someone important enough that they would matter. It does enforce a certain level of discipline that I find beneficial in my electronic dealings.