Look at the recent bombing in Boston. As soon as the suspects were named, people started asking questions. Why didn’t the FBI see this coming? Were there signs on social media accounts? Were there mobile phone calls that could have and should have been intercepted? After the fact, we’re quick to blame law enforcement for not digging deep enough. But think about it. If a month earlier, the FBI has asked for data from Facebook and Twitter, cell phone records and email records from a University, eyebrows would raise.
Do you have probable cause or are you fishing? Did you target these two using racial profiling? They’d need warrants and judges and reams of paperwork. One misstep and anything they find could be thrown out of court, so it all has to be properly documented, signed and sealed.
These systems may be bloated but they’re there to protect a person or agency from abusing its power. I’m not naive enough to say that never happens. But what if skipping a step meant saving lives. Would you say it’s okay?
That’s the question the courts are struggling with right now as Google pushes back against requests from the Justice Department.
I’m not a legal expert, so lets be clear that this is my understanding of the situation from what I’ve read. If I’ve got it wrong, please do set me straight.
Google is concerned about a rise in National Security Letters. This is a secret demand for data and it doesn’t require a warrant. That means there’s no unbiased party between law enforcement and the recipient of the letter. The NSL routinely comes with (but doesn’t have to) a gag order which prevents the receiver from discussing the request. Obviously, this is to keep the party who is being investigated from finding out that he’s on the radar.
Google says this move is unconstitutional. A judge in California already said it was so in an unrelated case, so Google is counting on that same ruling in their own fight in California and now in New York.
The FBI doesn’t want to hear it. They came right back in New York and filed a “petition to enforce” request. Basically, they want the courts to order Google to stop complaining and hand over the data.
On the highest level, there’s the question of whether or not someone is bending the rules of the Constitution. That’s a no-no and like it or not, we’re stuck with those restrictions for the moment. But what if the data request is a step toward stopping a terrorist? Wouldn’t you want Google to comply? What if the request is going to be used to stop an internet pirate? Would you change your mind?
Seems to me, much of the problem could be avoided if law enforcement was required to get a judge to sign off on any data request. Is there a case where the request is so secret and so urgent that you can’t involve a judge? That sounds sketchy but I suppose it could be so.
No matter who wins this round, it won’t be the end. The whole concept of digital data collection is just too new. Our founding fathers weren’t thinking about the internet when they wrote the Constitution. But does it matter? Listening in to your phone conversation is the same as listening in to your Skype conversation. Privacy is privacy and even for the promised safety of America, that’s something folks are going to fight giving up.