An Inarticulate Defense of Data Collection: It’s not just about prevention
Over and over and over again I hear everybody from President Obama to Senator Dianne Feinstein defending the continued collection of “meta-data” from telephone company records as being justified in that it might just help America prevent or disrupt a terrorist plot in the future. That is a possibility, but with no examples to trot out for the public, people remain skeptical.
Future prevention is by far not the only reason that there is a legitimate reason to collect and maintain meta-data records. From the government’s perspective, it puts a severe crimp into efforts to investigate everything from terrorist actions, to espionage, to organized crime, to cold case murders and other run of the mill felonies if you don’t have access to this data. From the private sector’s perspective, not having a government entity in control of this data limits the potential that this data can be used in an investigation for habeas corpus petitions to free falsely or improperly convicted inmates (perhaps even those facing the death penalty) or even to exercise the average person’s civil due process rights to chase down the assets of dead-beat dads, protect themselves from racketeers, stalkers, and hate crimes, or virtually any other legitimate effort where old records are needed.
The basic problem for the government is that the telephone companies don’t keep their data forever. It’s a pain in the ass to (a) store the data and (b) respond to subpoenas from the government and the private sector for the stored data. It’s not a service that makes them any money and probably is a money loser.
One thing I can’t understand about the media, pundits and other assorted talking heads in this whole debate is why nobody has drawn a parallel to The President’s Analyst, a cult film released December 21, 1967—shortly after its star, James Coburn, had become a founding member of the Peace & Freedom Party (and remained registered PFP until his death). In the plot of the film, it turns out that the telephone company is more dangerous than any government on Earth (from Wikipedia):
Kropotkin arranges a pickup with his trusted CEA colleague Don Masters, but Schaeffer is kidnapped again — this time by The Phone Company (TPC), a far more insidious organization than the FBR or KGB, which has been observing him throughout the film.
Taken to TPC’s headquarters in New Jersey, he is introduced to the head of TPC (Pat Harrington, Jr.), who wants Dr. Schaefer’s help in carrying out their plan. TPC has developed a “modern electronic miracle”, the Cerebrum Communicator (CC), a microelectronic device that can communicate wirelessly with any other CC in the world. Once implanted in the brain, the user need only think of the number of the person they wish to reach, and are instantly connected, thus eliminating the need for The Phone Company’s massive and expensive-to-maintain wired infrastructure. (The operation of the CC is shown in animation that parodies the animated sequences in the Bell Telephone Science Series television programs.)
Conspiracy theorists really ought to resurrect this film immediately to fuel the publics’ paranoid delusions of grandeur.
My blog at http://janbtucker.com/blog/2011/09/20/saving-america-for-25%C2%A2/ tells a bit about an investigation into espionage I began in the private sector which was taken over by FBI Counter Intelligence. For reasons that should be obvious, I can’t go into details inasmuch as the investigation is on-going. Consider this: in the private sector I stumble onto a “sleeper agent,” a foreign espionage agent spying on America’s defensive (and I am specific about “defensive” and not “offensive”) capabilities. It is unknown by either the FBI or myself as to how long his espionage activities have gone on in the United States. Should the government not have the capability of checking to see who this person has called since he’s been in the United States?
If you’re answer is no, I’d really like to hear your thinking and your justification. BTW, in this real life situation, the spy is working for a government which executes people for being Gay, flogs women for asserting their rights under the International Covenant on Civil and Political Rights, tortures and shoots people for demonstrating for free elections; yeah, one of those kinds of regimes.
Some so-called civil libertarians have their
heads up their asses when it comes to the real world
Usually, I agree with the ACLU, but when it comes to their legislative positions on privacy legislation, the organization evinces a class bias against the average criminal defendant who is too poor to pay membership dues to the ACLU. Example: some years ago the ACLU California lobbyists teamed up with the Sheriffs and Chiefs of Police associations to deny access to DMV address information to criminal defense investigators who need to find witnesses, giving police detectives a monopoly on this data to help put people in jail. The ACLU argued in writing that criminal defense investigators have adequate resources to find witnesses and refused to answer questions or debate the issue with me (I challenged their lobbyist to debate the issue in front of ACLU chapters). The fact is that not only does this impede just about any criminal defense investigation, it has a disparate impact upon the most oppressed people, undocumented immigrants, because witnesses to crimes committed by or against them also tend to be undocumented immigrants and it’s super difficult to find those witnesses. Frequently, the only way to find them is through vehicles which they owned even if they did not have driver licenses but because of the ACLU, private defense investigators don’t have access, period (you can’t even subpoena the information).
The debate on whether the government should own and control the data base of telephone company meta-data as opposed to forcing the telephone companies to continue to maintain old data needs to be looked at from the perspective of what the government’s obligations are under the due process clause of the Fifth Amendment to provide criminal defendants with potentially exculpatory evidence and the Sixth Amendment and the compulsory process clause of the Sixth Amendment. If the government has this data in its own possession, just as the government can use this information to investigate and convict somebody of a crime, so too does it have an obligation to provide access to this data base to criminal defense lawyers and investigators to help exonerate people or at least provide them with a fair trial. Telephone companies are under no constitutional obligation whatsoever to provide criminal defendants or anybody else with potentially exculpatory information that they might just happen to have in their possession; the government is.
The ACLU fought tooth and nail against legislation requiring people arrested but not convicted of crimes to provide DNA samples. Upon my recommendation and that of my criminal defense investigator colleagues then on the legislative committee of the California Association of Licensed Investigators (CALI), CALI endorsed this legislation not because it would help law enforcement but because it was likely to help the defense free people from wrongful convictions….and we have been proven right. Take the case of James Ochoa: http://articles.latimes.com/2006/nov/02/local/me-wrong2
If, as the ACLU had urged, this data base didn’t even exist, James Ochoa would still be in prison. Just as I predicted this kind of outcome from the practical aspects of the government creating this data base, an unplanned outcome of the government taking over the telephone companies’ meta-data collection may very well be that the private sector is aided in perfectly legitimate investigations to protect the constitution, not void it.