THE NSA AND THE FOURTH AMENDMENT….Mickey Kaus, writing about the NSA’s domestic spying program, has decided that the Fourth Amendment is obsolete:

If the administration went through 5,000 phone calls and emails and identified 10 people suspicious enough to watch, that’s a good ratio of searches to success, not a sign that the program is overbroad or useless….Maybe the government’s not casting its electronic net wide enough. I’d rather they go through 100,000 phone calls and identify 20 people.

Of course, 20 years ago Mickey decided the Fifth Amendment was obsolete too. Which part of the Bill of Rights will be the next to go?

But Mickey’s post reminds me of something I’ve been meaning to write about. It’s something that I know is obvious, and yet I keep getting the funny feeling that not everyone understands exactly what’s going on with the NSA’s program. NSA didn’t go through 5,000 phone calls to find 10 suspects. They went through millions. Maybe billions.

President Bush has characterized the program this way: “If somebody from al Qaeda is calling you, we’d like to know why.” Well, me too. But that isn’t what’s happening. We’re not eavesdropping on phone calls from al-Qaeda leaders. We’re not getting speed dial numbers from captured al-Qaeda cell phones. What we’re doing is making wild guesses about whose phones to tap.

The details are still murky, but what the NSA appears to be doing is very large scale data mining on virtually every phone call and email between the United States and overseas, looking for patterns that fit a profile of some kind. Maybe twice or three-times removed links to suspected terrorist phone numbers. Or anyone who makes more than 5% of their calls to Afghanistan. Or people who make a suspiciously large volume of calls on certain dates or from certain mosques. Stuff like that.

Then, if you happen to fit one of these profiles, your phone is tapped and an NSA analyst decides if you’re really a terrorist suspect. This apparently happens tens of thousands of times a year and most are washed out. Perhaps a thousand or two thousand a year are still suspicious enough to pass on the FBI, and most of these wash out too. At the end of the year, five or ten are still of enough interest to justify getting a domestic wiretap warrant.

Is this useful? Maybe. But we’re not listening in on al-Qaeda’s phone calls to America. We’re tapping the phones of U.S. citizens who fit a hazy and seldom accurate profile that NSA finds vaguely suspicious. So here’s a few questions for anyone who thinks the Fourth Amendment is obsolete:

  • The algorithms that determine NSA’s profiles are almost certainly extremely complex and technical ? far beyond the capability of any lawyer to understand. So who gets to decide which algorithms are legitimate and which ones go too far? NSA’s computer programmers?

  • What happens to the information that’s collected on the tens of thousands of people who turn out to be innocent bystanders? Is it kept around forever?

  • Is this program limited solely to international terrorism? Are you sure? If it works, why not use it to fight drug smuggling, sex slave trafficking, and software piracy?

  • Since this program was meant to be completely secret, what mechanism prevents eventual abuse? Because programs like this, even if they’re started with the best intentions, always get abused eventually.

Bottom line: if the Fourth Amendment is obsolete, then propose a constitutional amendment to change it. I don’t think most Americans would be happy to substitute “fits a vague NSA profile” for “probable cause,” but I could be wrong. Let’s put it to a vote and find out.

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