We Now Have Safeguards to Make Sure the Safeguards Are Followed

Jacob Sullum | August 13, 2008

Four years ago, in the course of a terrorism investigation, the FBI obtained the phone records of two Washington Post and two New York Times staffers working in Indonesia. FBI Director Robert Mueller recently apologized for this snooping, during which, as A.P. puts it, "agents did not follow proper procedures." From A.P.'s description, it sounds like the agents used "exigent circumstances" letters that demanded the records while falsely claiming grand jury subpoenas were in the works. A 2007 report (PDF) from by Justice Department's inspector general identified 700 such instances. Since the Electronic Communications Privacy Act (ECPA) generally requires a subpoena to obtain phone records, another way to put it is that the FBI broke the law, either deliberately or inadvertently. The bureau says "safeguards are now in place that we believe would prevent this from recurring." For one thing, the FBI no longer uses "exigent" letters, although it can always fall back on "national security letters," a kind of administrative subpoena that ECPA explicitly allows. The privacy of your phone records still depends on the executive branch's willingness and ability to police itself, of course. And given the government's new surveillance powers, so does the privacy of your email and phone calls.

[Thanks to Tricky Vic for the tip.]

Comments

Nigel Watt|8.13.08 @ 12:18PM|#

If we could just elect the right people, the government might no longer be evil. Right guys?

|8.13.08 @ 12:20PM|#

Right, Nigel. We just need to elect joe and it's all cool.

|8.13.08 @ 12:34PM|#

For a nice addendum, the judge in the Plame vs Cheney, Libby, and Rove throws out the case claiming "Congress exempted the offices of the president and vice president from a federal law protecting the privacy of individuals,"

http://news.yahoo.com/s/bloomberg/20080812/pl_bloomberg/avwhxybcpy;_ylt=Am9zZLwOXV5jK_qeLfA9NwOs0NUE

Consider that against thee claims the executive branch has made regarding people covered under executive privilage.

Episiarch|8.13.08 @ 12:36PM|#

Those responsible for safeguarding the safeguards, have been sacked. Oh wait, no they haven't. But a moose did bite my sister once.

|8.13.08 @ 12:36PM|#

I would like to see someone list all the example where the Bush admin said they were not doing it back then, and later apologized for doing it.

Naga Sadow|8.13.08 @ 12:42PM|#

I would like to see federal agents imprisoned for breaking state laws about snooping.

|8.13.08 @ 12:45PM|#

[Under my breath] The Censor wouldn't put up with this kind of nonsense. But no, we don't need the Censor, so we?

|8.13.08 @ 12:49PM|#

Make that "do we". I need my own personal Censor.

Gaius Octavius Thurinus |8.13.08 @ 12:50PM|#

Your desire for a return to the Republic disturbs me, Pro Libertate.

|8.13.08 @ 12:53PM|#

My Censor is different. It's a fourth branch, with checks and balances and stuff, and it's more than one dude. Or dudette. Unless, of course, I'm named Censor. Then the office should have patria potestas over all Americans.

Augustus|8.13.08 @ 12:59PM|#

That's not really my problem with it. I plan on staying Imperator.

|8.13.08 @ 1:01PM|#

Episiarch,

I'm listening to a lecture series by Lawrence Friedman on the history of American law. In it, he discusses a Council of Censors that Pennsylvania created at the time of the Revolution. It apparently didn't work very well, but one has to remember that the colonies didn't have the checks and balances (or the devotion thereto) that came later with the Constitution. Also, that Council had a more limited purpose than I envision--it just reviewed the constitutionality of laws every seven years (or something like that). I think something more frequent is in order, and I also think removal power (with checks) is a necessary component of the office.

I keep toying with the idea of taking this concept seriously and writing a law review article. The problem is, of course, how to avoid the political from overcoming the ethical purposes of implementing such a thing.

|8.13.08 @ 1:05PM|#

I wonder if anyone wrote a secret legal brief justifying the ability to ignore privacy laws. It wouldn't suprise me that protecting privacy is just a catch phrase.

|8.13.08 @ 1:09PM|#

I'm drafting a secret brief for the Administration saying that the Constitution was never properly ratified. Therefore, all sovereignty resides in the king. Lacking a king, I conclude that the president should be worshiped--and obeyed--as a god.

Episiarch|8.13.08 @ 1:10PM|#

That's a lot of work for something that will never be implemented, ProL. But it would be an interesting read.

|8.13.08 @ 2:29PM|#

If we could just elect the right people, the government might no longer be evil. Right guys?

If you aren't breaking the law, you have nothing to worry about. Right guys?

JB|8.13.08 @ 9:42PM|#

Whatever. Most of this has been going on for decades.

Go look up Echelon and learn how it really operates.