In a new WSJ report, a harsh critic of warrentless searches holds the line.
“It still adds up to more than 300 warrantless searches for Americans’ phone calls, text messages, and emails every day,” stated NYU’s Elizabeth Goitein [senior director of the Brennan Center for Justice’s Liberty & National Security Program]. “One warrantless search is too many.”
One is too many?
I’m not following her logic, which is basically that she believes the Fourth Amendment doesn’t say anything about victims.
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.
“Unreasonable” could be about victims.
If we were talking stopping deaths, in other words, then a zero goal makes sense. There’s no recovery from death. By comparison a goal of zero searches doesn’t make sense in the context of safety. A recovery from a warrantless search mistake seems entirely possible (even given rights violations), and there are surely examples of it being a lesser problem than death.
There are searches for missing people that are called off when it was a mistake. I don’t see people saying there should never be another search made, in that sense, because even a mistaken search still is intended to fight FOR victims’ rights.
It’s a bit like a critic of searches saying there should be zero people running out emergency exits. In a sense that sounds right, people running out the emergency exits can be a very bad thing. Yet instead of focusing on zero deaths from fires that caused use of exits, I see a fixation on stopping people from using the emergency mechanism even under a reasonable purpose of surviving in an emergency.
In 1911 there were 146 people dead within 20 minutes due to a lack of emergency exits in the NYC Triangle Factory fire. Someone arguing after that even one emergency exit use is too many… doesn’t seem to address an underlying infrastructure doctrine for something reasonably engineered to save lives in emergencies.
I also would cite here lessons from the 1905 Grover Shoe Factory fire (killing 58), yet suspiciously nobody in America seems to remember it… despite me putting details in every presentation I give on ethics in computer science.
…inspectors could not see between the two layers of a lap joint…
And that gets right into the second problem with the hard-line of criticism. The warrantless searches under Section 702 of FISA are purported to have saved lives.
Assuming there is any validity at all for this claim (e.g. the NSA Director says “We saved lives” so it’s plausibly true), then removing all the warrantless searches presupposes the opposite, they aren’t actually needed to save lives. It emphasizes removing them without explaining why or how lives would be saved some other way, or even why lives lost is a reasonable tradeoff for having no emergency exits.
Food for thought.
Critics will of course point to the FBI being itself subjected to corrupt and racist leadership, used to surveil and smear political opponents (e.g. Hoover targeting MLK under the pretense of “foreign” influence, leading to assassination).
On the flip side, federal prosecutors do find and prosecute Americans under foreign influence.
Former Transportation Secretary Ray LaHood admitted to federal prosecutors that he intentionally excluded from his financial disclosures a $50,000 loan he obtained while in office from a billionaire foreign donor, a document released by the Justice Department said Wednesday. During an interview with the FBI in 2017, LaHood initially denied receiving the loan, but later acknowledged the payment after being shown a copy of the $50,000 check he received in 2012, according to a non-prosecution agreement LaHood signed with federal prosecutors in Los Angeles.
Oops. Lately this LaHood guy, after his non-prosecution agreement with the FBI, has been a very loud critic of “Section 702 acquired information”, a twist that is perhaps best explained by EPIC.
Anyway, back to the story. The WSJ report on the ODNI report reveals that the FBI conducted about 200,000 warrantless searches of 120,000 Americans’ calls, emails & text messages in 2022.
That’s a significant drop from 3.4 million searches in 2021. Apparently the FBI is 1) complying better with restrictions due to reforms put in place, but also 2) foreign spies are behaving differently, drawing less 702 attention.