The NSA and the Fruit of the Poisonous Tree

We've all seen the cop/ courtroom dramas, right, where a typo on a search warrant, or an overzealous police officer finds conclusive evidence of a person's guilt, but because a proper warrant wasn't served, all of the evidence discovered on that search, and even evidence that was discovered later as a result of the search have to be excluded from trial as inadmissible? Keep that in mind.

The NSA has been keeping records on...everybody it seems. Without any of those pesky warrants that civil libertarians and Fourth Amendment seem to call for. Defendants of the administration and the status quo, tell us that it's only "metadata", that no one is actually listening to our calls, so it's no big deal! (It disturbs me slightly that I had never really heard the term “metadata” before last week but yet, my spell checker has no problem understanding it at all!)

But, is it? A big deal, I mean? One proponent tried to compare the metadata to...the Dewey Decimal System. They go into your library, but don't read any of the books. They just copy down the Dewey Decimal information from the spines of the books. And they tell us that all they're only looking for "patterns". See? Harmless? One question: who gave you permission to go into my library? If you entered someone's house without a warrant, and you discover a "pattern" of books that looks suspicious, then you want to go out and get a real warrant and see if you can prosecute that person. But even if they found a copy of The Anarchist's Cookbook, Earth in the Balance, Mein Kampf and Bill Ayers' autobiography, "Guilty as Sin, But Free as a Bird", the pattern is a result of the initial illegal search. And who determines what the pattern is? Or how many different patterns you look for? One for Islamofascists and another for Tea Party contributors to Ted Cruz? There may be a pattern in someone's books, but unless they invite you into the library, you're limited to what you can see through the window.

But, this "metadata" is just being broadcast into the air, isn't it? So, just anyone could pick it up? Well, for starters, no. My phone company has the infrastructure and, by the way, my permission to collect that data as a means of providing my cell phone service. However, when I was signing up for my last cell phone, I don't remember checking any box that said, "Do we have your permission to share your data indiscriminately with any government agency that requests it?" Did you?

There is an expectation of privacy with the people I do business with. If I were suspected of a crime and the government wanted to subpoena my financial records, they could see what I have been charging on my Visa, Am Ex and Mastercards. But, absent a warrant, I expect my financial records to be as private as my phone.

Some of us even expect our email to be private! Well, don't you know, they tell us, that even the Post Office scans and photographs every piece of mail, front and back that it handles? No expectation of privacy there! Well, for starters, no, I didn't know that! But still, my expectation of privacy is that anything on the inside of the envelope is safe from prying eyes...of course, unless you get a warrant first! Knock yourself out reading my postcards, but the content of letters is supposed to be protected by federal law. Which used to mean something in this country.

And it is true that Google and other providers of "free" email accounts scan the emails searching for key words, for advertising purposes. But, it's obviously an automatic system, because some of the ads that appear, based on certain keywords are almost comical. So why, an advocate for the devil might ask, do you object to the government doing something similar but for a nobler purpose of keeping us all safe? Well, Google doesn't have the power of government to come after me if I email a history buff about the "pickle switch" on the WWII Norden bomb sight (Yikes! There's that word!), and I don't click on a corresponding display ad for Vlasic pickles, which pops up.

And it seems to me that an important component of the metadata is being downplayed, and that is the ability to know exactly where your cell phone is every minute it is turned on. If you're silly enough to carry it with you at all times, oddly enough, they'll know where you are, too!

Cell phones constantly "ping" the nearest tower, whenever they're turned on, because, they’re basically insecure. (Think of them as unweaned puppies, or Democrats!) That's why all the savvy bad guys on TV take the batteries out of their cells or throw them away, so they can't be tracked. So, as you, Joe or Jane American, sit there in your bedroom or study, Somewhere, USA, and make a call, the phone company (and now the government) knows exactly where you are, because it knows what towers you are using. You get in your car and drive to SomeOther Town, the phone company knows which towers you are passing and which towers are at your point of arrival. They obviously do it for billing purposes, and compare the aggregate number of minutes you used, on all their towers, against your monthly plan. The phone company really doesn’t care which towers you use, so long as they get paid. Where you are when you make your call is part of your “metadata”. I wonder if those who say they are not bothered by this have considered the implications of Big Brother knowing where you are at all times?

For instance, I have one of those Fastrak toll transponders on my car. Every time I cross a toll bridge, it records where I am, what time I went by and charges my account. By my choosing. If I don’t want it to talk to anyone, I can lock it away in a small box, far from the light of day, HBO, and human contact. A few years back, Cal Trans wanted to do a traffic flow survey, utilizing the transponders that so many Bay Areans (Aryans*?) had in use. There was quite a hue and cry against it. Even though the survey was reportedly benign in scope (“That’s what they always say,” –my black helicopter* guy), a majority of people did not want the “government”, or anything like it, following their every move. The government accessing your metadata is like that survey, only on steroids.

We are told that all of this benign data of every number you call and every number that calls you and where you are when the calls take place will somehow help them in the war against terror. The fact that Obama wants to declare that war over and go back to the Bill Clinton model of treating terrorist acts as law enforcement problems, which didn't deter the second World Trade Center bombing after they put the bombers for the first on trial, is seemingly irrelevant. Call a terrorist mass murder "workplace violence" and, you've pretty much got it covered!

Which brings us back to the fruit of the poisonous tree. If Obama, his administration, and Kool-Aid consumers everywhere want to treat acts of terror as simple law breakers, and give Miranda rights to those you catch, using some pattern or formula they will have to give to defense counsel under discovery, don't you have to explain why you were in their library looking at their books?

At the first World Trade Center bombing trial, the defendants used the discovery process to learn how their communications had been intercepted. Don't you think the attorney for the first defendant, if any, brought to trial as a result of this data mining, wouldn't ask how his client came to the attention of the government in the first place? Can you say, "Exclusionary rule"?

Those who do not learn from history are doomed to repeat it. Like Obama voters in 2008!




*Yikes, again!


Cross posted at LCR.