Where's The Outrage?
Remember the OUTRAGE when then President Bush signed an executive order allowing the NSA to "tap" the cell phone conversations of suspected terrorists? It was front page news for DAY. Congressional hearings were called and much harrumphing was heard from the left about the "legality" of such wiretaps.
Well, it's funny how minds can change in just a few short years.....
On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices. In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no "reasonable expectation of privacy" in their--or at least their cell phones'--whereabouts. U.S. Department of Justice lawyers say that "a customer's Fourth Amendment rights are not violated when the phone company reveals to the government its own records" that show where a mobile device placed and received calls.
Hmmmm....shall we contrast the emphasized sentence with something that then candidate Obama said in New Hampshire?
For one thing, under an Obama presidency, Americans will be able to leave behind the era of George W. Bush, Dick Cheney and "wiretaps without warrants," he said. (He was referring to the lingering legal fallout over reports that the National Security Agency scooped up Americans' phone and Internet activities without court orders, ostensibly to monitor terrorist plots, in the years after the September 11 attacks.)
Which is in line with the "Geraghty principle" that ALL of President Obama's campaign promises have a self life. Some just have a longer shelf life than others!
The ACLU for one, is not happy with this promise being broken...
Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department's request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans' privacy deserves more protection and judicial oversight than what the administration has proposed.
"This is a critical question for privacy in the 21st century," says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. "If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment."
The good news for the ACLU is that there may be some legal precedent that they can fall back on...or at least build on. You see back in 1996 John and Alice Martin illegally recorded a cell phone conversation that they intercepted. That phone call was between then House Speaker Newt Gingrich and several GOP leaders including Rep. John Boehner. The Martin's picked up Rep. Bohner's end of the conversation as he was on his cell phone. The Martin's then gave the recording to Rep. Jim McDermott (D-Oregon) and he released a transcript of the recording to the media. The Martins were subsequently charged (in federal court) with and plead guilty to illegal wiretapping.
There is 2-fold precedent here. Besides the Martin's illegal taping of the call, Rep. McDermott was found to be guilty (in civil court) of violating the Wiretapping Act by releasing the illegally obtained recordings to the media. Rep. McDermott argued that his First Amendment rights gave him the "right" to do so, something that federal courts have struck down. The civil case is important because the court stated that Rep. Boehner's (as user of said cell phone) privacy, according to the law, had indeed been violated (the wiretapping law does include electronic communications which includes cell phones).
So an expectation of privacy is stare decisis. Given how important stare decisis is to this administration on certain issues (Roe V Wade) I wonder if it will be as important here. Somehow I suspect not...
And while I am hardly surprised that President Obama has gone in this direction, I am curious to see what his defenders (many of whom were vehemently opposed to the Bush Administration when they pulled this) are going to say about this. Somehow I suspect that they will be not so oddly quiet.
Cross posted at Ladies Logic where your comments are welcome.
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