In Wonderful News For Freedom Everywhere

December 27, 2013, 7:32 pm

Prod01 009646

A judge has ruled that the NSA can, in fact, collect lots of random information about Americans. Goody:

While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is.

Sigh. It does make it more likely that the Supreme Court will address this at some point, not that I’m particularly confident about that body’s ruling.

I wanted to note something, though, which is this paragraph in the Talking Points Memo story:

In arguments before Pauley last month, an ACLU lawyer had argued that the government’s interpretation of its authority under the Patriot Act was so broad that it could justify the mass collection of financial, health and even library records of innocent Americans without their knowledge. A government lawyer had countered that counterterrorism investigators wouldn’t find most personal information useful.

The government lawyer’s argument is not a counter. Rather, it is avoiding the argument by conceding the government’s ability under the Patriot Act to collect whatever information it wants but not addressing whether that is a constitutional violation. That that information may not be useful has nothing to do with whether it’s a privacy violation, it’s just a head-pat reassurance because the lawyer had to fill their time in front of the judge. In the context of Constitutional rights, the issue of usefulness is a side note at best. It may or may not be useful for the government to restrict speech; that has (or should have) little impact on the First Amendment.* It may or may not be useful for the government carry out whatever searches it wants; that has (or should have) little impact on the Fourth Amendment. Usefulness is not the measure that the American system takes as a measure of whether something is allowable. When it is, it leads to American use of torture, racial profiling, and other similarly toxic things. There is no “usefulness exemption” in the Constitution and Bill of Rights, nor should there be.

* (Pet peeve rant) A frequent appearance in Internet discussions is the idea that the right to free speech covers only the government (or Congress). That is not correct. The American Constitutional manifestation of that right covers only the government, but the right to free speech existed before the First Amendment and that right (unlike the First Amendment) was not necessarily limited to restricting governments. It is thus perfectly possible to make a free speech argument relating to a non-government entity restricting speech. (/rant)

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