Over on Balkinization, there's a post by Scott Horton linking to the NYT's must-do list to restore civil liberties, and some additional items that Scott Horton would add. I love me some lists, so I'm linking. Also summarizing.

The Times' list:

(1) restore habeas corpus,
(2) stop illegal spying, really,
(3) close the CIA prisons,
(4) account for "ghost prisoners,"
(5) ban extraordinary rendition,
(6) tighten the definition of "illegal enemy combatant,"
(7) screen prisoners fairly and effectively,
(8) ban tainted evidence,
(9) ban secret evidence,
(10) better define "classified" evidence,
(11) respect the right to counsel.

Horton's continuation (I've included some brief explanation, but you should go to the original post to find out more):

1. The Gonzales 8 (stopping the misuse of DoJ power to investigate political adversaries)
2. Judicial Nominations (partisan politics being the preeminent qualification for judicial appointment. Not good)
3. Political Intimidation of Judges (packing the bench with ideologues/sheep + intimidating those already there = badness)
4. Persecution of Whistleblowers (self explanatory)
5. Perversion of the Inspectors General (Inspectors General are supposed to be enforce ethics, but have instead become a roadblock/damage control to whistleblowers)
6. Persecution of Defense Counsel (esp. defense counsel for Guantanamo detainees)
7. State Secrets Doctrine (designation of stuff as state secrets has spiralled out of control)
8. Erosion of Posse Comitatus Act Protections (protecting civilians from military surveillance)
9. FISA Violations (subjecting people to government surveillance)

Tags: america, balkinization, hamdan, law, law school, links, lists, mass-media, morality

Article in the Washington Post describing how the U.S. government buys data from private data companies.

Balkinization has a brief discussion of the implications of this sort of thing. As he puts it:

Personal information by itself can be innocuous but when combined with other information about a person (and about other persons judged to be similar) it can help create a relatively rich profile of a person's activities, preferences and tendencies.

Is this governmental intrusion constitutional?

The 1979 Supreme Court case Smith v. Maryland suggests that it is. Smith held that it was not a violation of the 4th Amendment prohibition on unreasonable searches and seizures for the government to collect information on numbers dialed from a private phone, even without suspicion. The reasoning was based in part on the "fact" that "[a]ll telephone users realize that they must 'convey' phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed," and so have no expectation of privacy. Luckily, Congress was sufficiently attentive to privacy concerns to amend the Wiretap Act (albeit 7 years later in 1986) in response to Smith to prohibit warrantless monitoring of phone numbers. This was done with the Electronic Communications Protection Act (ECPA).

There is a temptation to minimise the seriousness of this practice - after all, data mining probably is not really so prevalent. In a rather prescient introduction to her article published Fall 2004 (before the NSA warrantless wiretaps came to light), Susan Freiwald suggested that, just as in the fifties, in fact "the seemingly paranoid view of electronic surveillance was quite sane." There are two big reasons why law enforcement personnel will always be tempted to push at the edges of and often violate the law when it comes to surveillance - safety and reliability (I would add efficiency and cost reduction - you don't have to pay a device by the hour). It is far less dangerous to have a hidden microphone or tap a phone line than to have a person trying to listen in. Similarly, recorded conversations are more reliable than our memory (apparently there are some interesting studies on the astoundingly poor job that people in general do in recalling details, even of important events). The article, titled "Online Surveillance: Remembering the Lessons of the Wiretap Act" although long is quite readable, and published in the Alabama Law Review.

Tags: academia, balkinization, data mining, law, online surveillance, opinion, politics, privacy, supreme court, wiretap act