FBI Admits That Obeying The Constitution Just Takes Too Much Time

FBI Admits That Obeying The Constitution Just Takes Too Much Time

June 20, 2013

Tech Dirt - While much of the news coverage of FBI Director Robert Mueller's Congressional hearing this week focused on his admission that the FBI has used drones domestically, there were some other points raised, including his "defense" of the broad surveillance techniques that appears to amount to the idea that it just takes too long to obey the Constitution and go through the proper procedures before getting information:

Testifying before the Senate Judiciary Committee, Mr. Mueller addressed a proposal to require telephone companies to retain calling logs for five years — the period the N.S.A. is keeping them — for investigators to consult, rather than allowing the government to collect and store them all. He cautioned that it would take time to subpoena the companies for numbers of interest and get the answers back.

“The point being that it will take an awful long time,” Mr. Mueller said.

Well, shucks. Having some amount of oversight, someone in a position to make sure that the data requested is legit would just take too long? It seems like Mueller maybe has been watching too many episodes of 24. First off, it does not take an "awful" long time. Law enforcement has regularly been able to go through legal processes to get a wiretap or subpoena other information very, very rapidly, especially when they make it clear it's an emergency situation. But the fact is, it's unlikely that most of these searches are such a timely emergency that they need the data now, and can't wait an hour or so until an employee at the telco can retrieve it for them.

Mueller later made some outrageous claims about how long it would take the telcos to respond to a request for information following the standard procedures in an emergency.

“In this particular area, where you’re trying to prevent terrorist attacks, what you want is that information as to whether or not that number in Yemen is in contact with somebody in the United States almost instantaneously so you can prevent that attack,” he said. “You cannot wait three months, six months, a year to get that information, be able to collate it and put it together. Those are the concerns I have about an alternative way of handling this.”

Mr. Mueller did not explain why it would take so long for telephone companies to respond to a subpoena for calling data linked to a particular number, especially in a national security investigation.

He didn't explain it because it wouldn't take that long -- especially with the telcos who generally have a cozy relationship with law enforcement and a "how high?" response to the "jump!" command from the government.

Yes, I'm sure it's more convenient for the government to not have to wait an hour or so to get this info. And it's more convenient not to have to wait for a telco employee to make sure the request is legit and to retrieve the info, but we don't get rid of our Constitutional protections because of convenience for the surveillance state. The whole point of the rights of the public against such intrusions is that we, as a country, have made a conscious choice that surveillance over the population is not supposed to be convenient. It's supposed to involve careful checks and balances to avoid abuse. It's a shame that so many in our own government don't seem to recognize this basic point.

Mueller also admitted that the goal is to collect as much data as possible to "connect the dots."

“What concerns me is you never know which dot is going to be key,” he said. “What you want is as many dots as you can. If you close down a program like this, you are removing dots from the playing field,” he said. “Now, you know, it may make that decision that it’s not worth it. But let there be no mistake about it. There will be fewer dots out there to connect” in trying to prevent the next terrorist attack.

Again, this is an anti-Constitutional argument. It's an argument that says any violation of privacy and civil liberties is okay if something collected might possibly be useful later. But that's not how we're supposed to do things in the US. We're only supposed to allow law enforcement to collect the dots if there's evidence that the dots show some law being broken. Furthermore, we've already seen that having lots of dots actually makes it harder to connect the dots. Since Mueller is one of the folks who has claimed that today's system might have prevented 9/11, he ought to know that the 9/11 Commission never said that an absence of dots was the problem leading to the attack, but rather the failure of existing agencies to actually do anything with the dots/evidence they had. Collecting more dots doesn't make you any more likely to connect them. In fact, it's much more likely to send you on a wild goose chase -- including some that will potentially infringe upon the rights of innocent people.