January 4, 2006


On the Subject of Leaks (NY Times, 1/04/06)

Given the Bush administration's appetite for leak investigations (three are under way), this seems a good moment to try to clear away the fog around this issue.

A democratic society cannot long survive if whistle-blowers are criminally punished for revealing what those in power don't want the public to know...

....that the Timesmen think Alger Hiss and the Rosenbergs were courageous whistle-blowers?

Posted by Orrin Judd at January 4, 2006 11:08 AM

Imagine how Byron Calame feels, with Keller and Sulzberger refusing to answer his e-mails.

Posted by: ratbert at January 4, 2006 12:30 PM

This business is going to be in front of the Supreme Court before we know it.

We are going to hear from Schumer and Kennedy about this any day now.

Posted by: Lou Gots at January 4, 2006 1:24 PM

Oh, sh(*, I guess we shouldn't have pushed.

Posted by: Sandy P at January 4, 2006 2:41 PM

One thing Alger Hiss, Julius and Ethel Rosenberg, and the Bush Administration all have in common: they were trying to keep their illegal spying activities secret from the American people.

Posted by: apc at January 4, 2006 3:23 PM


Two out of three ain't bad accuracy for a Leftist.

Posted by: oj at January 4, 2006 3:29 PM

If this gets to court, I just hope the prosecutors have a long line up of NY Times editorials calling for investigations of the Plame "leak". A list of those with excerpts should be in the talking points memo to every White House staffer.

Posted by: Annoying Old Guy at January 4, 2006 4:10 PM


I'm not admitting any inaccuracies here, but didn't you mean three out of four?

Posted by: apc at January 4, 2006 5:11 PM

No, Hiss and the Rosenbergs were engaged in illegal activities. The Bush Administration acted under its Constitutional mandate.

Posted by: oj at January 4, 2006 5:30 PM

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Posted by: apc at January 4, 2006 5:48 PM


Like Rush Limbaugh's medical files?

Posted by: obc at January 4, 2006 6:01 PM

Wow. Another whiny Leftist who figured out how that cut-and-paste thingy works. Or did you type it in yourself? In any case, you should be proud of your efforts to enlightened us. None of us has ever seen that part of the Constitution before.

In any case, when you can find the part in the Constitution that says that its protections apply to our enemies, located outside this country and communicating to their agents and fellow-travelors and comrades located here, why don't you post that here, too?

Oh, that's right, like those poor souls held prisoner in Guantanamo, they aren't enemies, just misunderstood idealists But I suspect this troll is a plant, because no True Believer would ever admit that the Rosenbergs and Hiss were spies. They were just patriotic Americans engaged in their Constitutional right of dissent.

Posted by: Raoul Ortega at January 4, 2006 6:04 PM

1. Cell phone calls and emails are not "persons, houses, papers [or] effects."

2. Emails are computer files copied from computer to computer until they reach the final recipient. They include headers containing information about where they came from, where they are going and the path they use.

3. Cell phones are hand-held radios that also start messages on their way over a series of relays, also as digital files.

4. Necessarily cell phone conversations travel outside of the house and necessarily they share information with the network and communications with other people.

5. Cell phone conversations can be overheard by anyone in the vacinity of either party, including by people in the supermarket check out line.

6. If the target of the search has no reasonable expectation of privacy, then no warrant is necessary.

7. If there are reasons for acting immediately before the evidence is gone, then no warrant is necessary.

8. There is no general privacy right in the Constitution or in the Fourth Amendment.

9. Where foreign policy and, in particular, the national defense is involved, searches that might otherwise be unreasonable become reasonable.

10. The Fourth Amendment in not violated by the what is known of the NSA program; and frankly the argument that it is violated is made only by people ignorant of the history of the Fourth Amendment and the cases construing it.

Posted by: David Cohen at January 4, 2006 6:18 PM

Foreigners aren't "the people"

Posted by: oj at January 4, 2006 8:19 PM


For most Democrats, the French (at least) are more "we" than 75% of America. Think of John Kerry and his devotion to the Continent.

Posted by: ratbert at January 4, 2006 9:39 PM

David Cohen:

Ding, ding, ding. You win the free car.

Nice job.

Posted by: Matt Murphy at January 4, 2006 10:37 PM

David: I would think that cell phone conversations, as digital files, fall under the effects category, no? So if what you say is true, then even outside the Patriot Act it is not necessary to obtain a warrant to use cell phone conservations and emails as evidence? I don't think the supermarket checkout line thing really matters, but doesn't it matter whether the party is aware of their being overheard?

Posted by: Grog at January 4, 2006 10:48 PM

If people like grog actually cared about privacy of communications through cellular phones and cordless phones, they'd insist on encryption being used. Instead we get laws making it illegal to buy scanners that can receive certain parts of the spectrum (and which can be easily adapted to listen in by anyone who knows how to handle a soldering pencil.) The same goes for email, which is the electronic equivalent of a postcard.

That no one, even the people who are aware of the problems, ever bother is an indication of just how low a priority it really is. Then again, because of that, any encrypted message is like putting a giant "Read Me, I'm Up to No Good" sticker on your message. Better to take steganography one step further and make yourself look like spam if you really want to be ignored. That way millions of people get your message, but only one knows the true significance of that message from "Betsy Xiong"... If the alQaeda types aren't doing stuff like this not only does it mean they deserve to lose, but once again they are using a technology they don't even begin to understand.

Posted by: Raoul Ortega at January 4, 2006 11:33 PM

Digital files could be effects, but they're not on the caller's system. They're on the network, which belongs to someone else. If I send you an incrimination email and turn it over to the police, or they find it through lawful means, I don't have any right to object. This is a slight oversimplification, but if the police officer has the right to stand where he's standing, anything he sees is fair game.

The subjective state of mind of the caller/emailer more or less doesn't matter. If we're planning a bank heist over your cell phone and you are in the checkout line, I'm out of luck. You might be thinking of the various state laws governing taping of telephone calls. Some states require the permission of only one participant, but others require the permission of both (or did when I looked at this ten years ago). Law enforcement interceptions are related, but different.

As for whether a warrant is ever needed, it may be. Various privacy statutes require warrants for intercepting electronic communications. That's a different question from whether the Fourth Amendment would require a warrant. I think that it wouldn't, but the courts might not agree with me. The key, for me, is that both email and cell phone conversations necessarily travel over third party systems and share information with those systems. I don't see any constitutional right to shield information in the possession of third parties.

Posted by: David Cohen at January 4, 2006 11:54 PM


To answer your question, as the old rock song says, the assumption that the Times thinks favorably of Hiss and the Rosenbergs is based upon much "more than a feeling."


Posted by: Ed Bush at January 5, 2006 12:54 AM

This is a fascinating thread. David get himself out of a lot of trouble by letting on that the courts might not agree with him.

He also scores big points by pointing out that the subjective state of mind of the out-of-court declarant is not the determining factor in weighing whether a communication may be the object of an unreasonable search.

An expectation of privacy in e-mail would be like an expectation of privacy in trash put out and the curb in the belief that no one will notice what it is or even that if they notice they will not report it, or, more obviously, an expectation that sky-writing will escape official notice. There might be an expectation of privacy, but the expectation would not be reasonable.

Furthermore, "reasonable" here is a term of art, meaning, not "average" or "common," but grounded in reason. A criminal might have a factually well-founded expectation that Marion Barry would not "snitch" on him, but that belief would not be legally reasonable, for every person guided by reason would inform.

The confusion is compounded by the common law-student error of confusing the mere catch phrases used by courts in explaining or illustrating the rule in a case withe the rule itself. The most egregious example of this error is the phrase, "wall of separation of church and state." "Reasonable expectation of privacy," is another.

The phrase stems from an old wiretap case which dispensed with an earlier requirement that the declarant have a property interest in the medium, as distinct
from the content, of the communication. We need to understand the reason for the rule, not the buzz-words that stand for it.

Even grog, proving the stopped-clock rule, correctly observes that cell-phone communications are protected no less than so-called "land-lines." which they should be, inasmuch as they may be little more committed to physical wires than cell phones. But that's all right, he makes up for this lapse of inanity by sinking back into the old "expectation of privacy" error.

I would suggest that a communication committed to a cell-phone system is neither less nor more protected than one committed to an old-fashioned wire. I further would hold that interception and surveillance of communications from and to foreign countries in wartime is per se reasonable, and an expectation of privacy in such communications per se unreasonable, the law being silent amid the weapons.

Posted by: Lou Gots at January 5, 2006 1:50 AM

Gary Farber is of the opinion that what the NSA is doing, and why the Foreign Intelligence Surveillance Court was bypassed, is that they’re doing wide-spectrum data mining, they can’t select out which intercepts they’re pursuing ahead of time, and they’re just sucking in everything for automated analysis:

[All emph. add.] In answer to the endless mantra of “but why couldn’t they just get FISA warrants?” : If you’re doing a multiplexdata-mining pattern analysis on tens of thousands or more people, shifting by possibly tens of thousands of people per day, or more, you can’t get warrants. It’s not humanly possible.

Which, as I keep explaining, only makes the [situation] exponentially larger than most non-tech oriented left/lib/progressives seem to understand, with this antediluvian focus on “wiretaps” and “why can’t you get a FISA warrant?” [...]

It’s as if people kept decrying the threat of TNT when we’re talking about the fact that the fusion bomb has been invented and put to use. [...]

Data-mining, for those unfamiliar with it, simply put: Collecting every available bit of information about you, public or that which comes up via investigation of others, accurate or inaccurate, putting it all in a massive file about you, updated on a constant real-time basis, and then integrating that into a massive data-matrix that shows all perceived links between you and other people and enterprises, and then analyzes that, and then washes, rinses, and repeats, non-stop. [...]

[The data is] collected by tapping directly into some of the American telecommunication system’s main arteries. [...]

As part of the program approved by President Bush for domestic surveillance without warrants, the N.S.A. has gained the cooperation of American telecommunications companies to obtain backdoor access to streams of domestic and international communications, the officials said. [...]

What has not been publicly acknowledged is that N.S.A. technicians, besides actually eavesdropping on specific conversations, have combed through large volumes of phone and Internet traffic in search of patterns that might point to terrorism suspects. [...]

[T]he N.S.A. has sought to analyze communications patterns to glean clues from details like who is calling whom, how long a phone call lasts and what time of day it is made, and the origins and destinations of phone calls and e-mail messages. Calls to and from Afghanistan, for instance, are known to have been of particular interest to the N.S.A. since the Sept. 11 attacks. [...]

Such information often proves just as valuable to the government as eavesdropping on the calls themselves. [...]

[S]enior government officials arranged with officials of some of the nation’s largest telecommunications companies to gain access to switches that act as gateways at the borders between the United States’ communications networks and international networks. [...]

The switches are some of the main arteries for moving voice and some Internet traffic into and out of the United States, and, with the globalization of the telecommunications industry in recent years, many international-to-international calls are also routed through such American switches.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

Which is exactly how it should be.

Our enemies have the advantage of stealth and small cells; we should do all that we can to exploit our edge of vastly superior technology, human resources, and command, control, and communication (C^3).

Posted by: Michael Herdegen at January 5, 2006 5:40 AM

Lou: I still think that the Fourth Amendment, properly understood, would give little protection to either email or cell phones. But I've now seen a suggestion, over at the Volokh conspiracy, that what's driving this program is the header information on emails and cell phone calls. As the whole purpose of the header information is to convey routing information to the third-party systems carrying the message, even the courts would say that there's no Fourth Amendment protection. Instapundit compares this to information written on the outside of an envelope, which is not protected. In other words, if I mail a letter addressed to:

Osama bin Laden
527 Death to the Crusaders Boulevard
Apartment 3G
Kandahar, Pakistan

I've got no beef if the postal inspectors come have a chat with me. Similarly, if I send email to a known Al Qaeda inbox, how can I complain if the government notices?

The problem is that we don't know enough about the NSA program, nor should we. It might be data mining. It might be a sort of email web spider. That is, we start with a notebook found in a AQ hideout in Pakistan. It goes and checks email at 72virgins@hotmail.com. NSA programs its computers to check for email heading to 72virgins@hotmail.com and also all the other email addresses it can glean from the inbox. From that it finds swingingsaudi@gmail.com. Swingingsaudi is added to the list and then traffic in and out of that account is monitored. I still don't see any Fourth Amendment problem, so long as the header information gives you a contact back to a known AQ account -- even a couple of times removed.

The problem is that NSA's email spider is only one spammer away from having to watch every email address in the world. I wouldn't be surprised if that's the problem: they doing some winnowing based on the content of the email (and cell phone) when they know that their net has spread itself too thin for "probable cause" (another term of art that people misunderstand). If this is anything close to right -- and it's all surmise -- then it is the winnowing algorithms that they're worried don't satisfy FISA, especially as FISA doesn't allow bootstrapping. That is, although FISA allows tapping first and warrant second, you can't get the warrant after the fact based upon information learned from the tap.

Posted by: David Cohen at January 5, 2006 8:02 AM


Though you do have some privacy from the government under the constitutoion and none from non-governmental actors. Thus, I can search your house without a warrant and the state can even use what I find, but it can't search on its own.

Posted by: oj at January 5, 2006 8:07 AM

The effect of the Constitution is to give us some privacy, but only as a side effect of some other Constitutional purpose. That's not surprising, as privacy didn't exist in the eighteenth century.

As you point out, it's only privacy from the government. As it happens, when it comes to privacy qua privacy, the government is the least of my worries. I need something to protect me from my neighbors. (Just kidding, you're all great people. Really.)

Once we explained the concept of privacy to the Founders, they might be a little confused. The government knows every dime I earn, and keeps careful records. It knows where I was born and to whom. In almost everything I do, I need to disclose a government assigned number for record keeping. This includes my health insurance, which in turn leads to detailed medical records of every test, probe and examination I have ever had. I've got a transponder on my car that automtically notifies the state government when I drive on certain of its roads and I allow it to go charge my credit card. My credit card company -- its records available to subpoena by every lawyer in the country, if they have a proper purpose -- knows about every purchase I make above, say, $100 and quite a few below that amount. If you go downtown, you can find public records showing how much I paid for my house and what my mortgage was when I took it out. If you go to another office nearby, you can find out what the city thinks my house is worth now. The government knows where I keep most of my money and when I die it will get an exact accounting of the whole thing as well as the results of a careful examination of my dead body.

But G-d forbid that the government read my email, which I have voluntarily sent to someone else to read for the purpose of communicating my ideas.

Posted by: David Cohen at January 5, 2006 8:26 AM

Since the Supreme Court says you have no reasonable expectation of privacy in your car (which most people think they do), how can they possibly think their cell phone conversations would be any different?

Posted by: sharon at January 5, 2006 4:32 PM