When it comes to domestic crime-busting, cops and G-men love to listen in on the bad guys using, in the old days, wiretaps and planted bugs, and today whatever new technology can be taken advantage of. If I recall correctly, one of the ways O.J. Simpson was reportedly located driving down the freeway in L.A. in his famous slow-speed chase was by the fact that he used a cell-phone while riding. His transmissions indicated the phone cell in which he was located, and the next, and the next. Police were more interested in what they could tell by the fact of his calling, which revealed his location, than, I suppose, anything he may have said at the moment, although what an unapprehended fleeing double-murder suspect has to say is always of interest to police.
The question is whether the Fourth Amendment protects more than just the content of a private conversation, assuming that a broadcast conversation is deemed to be private, as opposed to one going through the wires. The first time the U.S. Supreme Court confronted wiretapping by police, in a case called Olmstead v. U.S (1928), it ruled against the privacy interest of the participant in the conversation. This led to one of the most famous dissents of all time, Justice Louis Brandeis, which later became law. Congress past the Electronic Communications Act, which memory says is 18 USC 605, although I may have the wrong title, so until we look it up, you're on your own for cites.
Here are the famous thoughts of Justice Brandeis, re-paragraphed, joined by Justice Holmes, setting forth the values that we need to fight for, just as they have been fought for in the past:
The protection guaranteed by the amendments is much broader in
scope. The makers of our Constitution undertook to secure conditions
favorable to the pursuit of happiness.
They recognized the significance
of man's spiritual nature, of his feelings and of his intellect.
They
knew that only a part of the pain, pleasure and satisfactions of life
are to be found in material things.
They sought to protect Americans in
their beliefs, their thoughts, their emotions and their sensations.
They conferred, as against the government, the right to be let
alone - the most comprehensive of rights and the right most valued by
civilized men.
To protect, that right, every unjustifiable intrusion by
the government upon the privacy of the individual, whatever the means
employed, must be deemed a violation of the Fourth Amendment.
And the
use, as evidence
[277 U.S. 438, 479]
in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.
Applying to the Fourth and Fifth Amendments the established
rule of construction, the defendants' objections to the evidence
obtained by wire tapping must, in my opinion, be sustained.
It is, of
course, immaterial where the physical connection with the telephone
wires leading into the defendants' premises was made.
And it is also
immaterial that the intrusion was in aid of law enforcement.
Experience
should teach us to be most on our guard to protect liberty when the
government's purposes are beneficent.
Men born to freedom are naturally
alert to repel invasion of their liberty by evil-minded rulers.
The
greatest dangers to liberty lurk in insidious encroachment by men of
zeal, well-meaning but without understanding. 12
...Decency, security, and liberty alike demand that government
officials shall be subjected to the same rules of conduct that are
commands to the citizen.
In a government of laws, existence of the
government will be imperiled if it fails to observe the law
scrupulously.
Our government is the potent, the omnipresent teacher.
For good or for ill, it teaches the whole people by its example.
Crime
is contagious. If the government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto himself; it
invites anarchy.
To declare that in the administration of the criminal
law the end justifies the means-to declare that the government may
commit crimes in order to secure the conviction of a private
criminal-would bring terrible retribution.
Against that pernicious
doctrine this court should resolutely set its face.
It'll take a bit of a research project for me to find a case where the prosecution, state or federal, offered into evidence in a trial, the pattern of traffic to show the commission of a crime, say a conspiracy. But if A denies knowing B, and the police have evidence of phone calls between the two, the question is whether the police needed a search warrant to obtain this evidence. I think that they do.
This is somewhat similar to the programs conducted by our national security agencies such as NSA (No Such Agency, it's so secret, or was, anyway) and CIA which have been so controversial recently.
By statute, they are not allowed to listen in on conversations between citizens in the United States. But what if a citizen calls someone overseas? Or two U.S. citizens speak to each other overseas? Those are different.
But according to the news reports, it appears that the U.S. has been trying to track down terrorists by eavesdropping on conversations with one or both legs in the U.S., without a search warrant and in probable violation of statutes prohibiting warrantless eavesdropping within the U.S. We have a special secret something called a court, the FISA "court" (it doesn't much resemble other courts), which is supposed to pass on the legality of government requests to eavesdrop on terror suspects without a warrant using less than probable cause, let's call it reasonable suspicion.
But it appears that the NSA failed to request FISA-Court approval of its program to vacuum the airwaves for signals, then to run them through a computer using an algorithm to check for suspicious words. This way those callers and recipients, and their phones, and the people they spoke to in turn, could be given special attention to see whether they were bad guys trying to hurt us.
The problem is that it appears that the NSA must've figured that it made no sense to bother going near the FISA Court because when you vacuum the entire broadcast spectrum, and other mass communication spectra such as Internet communications going through central hubs, there's no pretense that you have reasonable suspicion of anything, much less the goods on a suspected terrorist.
What you are doing is fishing, looking for a needle in a haystack by running a magnet over every straw in the pile hoping to find one or two that are of interest.
The question is whether the Constitution allows you, as a government agent to do this. Traditionally the answer is "No." This is what the problem is. The president, GWB, seems to have taken the clear position that he is empowered, as Commander-in-Chief of the armed forces of the United States, to use all military means at his command, including vacuuming messages through whichever medium they are transmitted, to find and strike at terrorists, on behalf of you and me.
But we may not want our president to violate our Constitution to save us from terrorists. We may feel that it's not worth the price to survive without our Constitution, our soul. We would win the battle but lose the war, as we'd have no privacy knowing that government, under the GWB theory, would have the power to put a microphone in every room of our homes, cars, jobs, and persons. Government could keep track of us, who we speak to, what we say, and what we think.
This would have a "Big Brother is Watching You" chilling effect of the first magnitude.
A lot of people have fought and died for our rights, especially our rights to think and talk, our privacy, to give this up without a big constitutional fight. This may be why government tries so hard to keep these programs secret, that and the fact they don't want the bad guys to know what's going on. But the bad guys already know that they have to be careful using the wires and airwaves to communicate. So it's only the good guys who finish last in this game, you and me.
We're the voters who, under our democratic system, have the final say over what our government does for, and to, us, in the name of our national security.
If government keeps us out of the loop, we're a big step removed from the democratic paragon we like to think we are. We more closely resemble the bad guys we've fought in the past who didn't let their populations in on what was going on either. This is something worth fighting against.
The article below from the National Journal, provided by a friend, who I thank but won't name, points out what seems to be occurring.
Do we want the president placing himself above the Constitution, if that's what he's doing, and it appears that he is?
Do we want Congress, representing us, reining him in?
Do we want the government abandoning the Constitution the way it did following Pearl Harbor when we interned Japanese-Americans, wholesale, on the theory that in this big haystack there may be one bad straw or a few? Later we realized we'd made a big mistake by abandoning our principles because we were panicked and gave in to our worst fears.
Does it really make a difference whether our intelligence agencies focus their interest on traffic patterns as opposed to content? Assume that all of your calls are thrown into a database and tabulated to see who you call. Maybe later you'll be asked to explain. Don't count on having access to the database. The government will, if the database is doing anything useful, object on the ground of official privilege and national security.
I'm not suggesting that the answers to these questions will be easy to come up with. I do suggest, however, that we fight tooth and nail for hard-bought rights, because as Lt. Col. Oliver B. North truly said when he invoked his Fifth Amendment Right not to answer questions that might tend to incriminate him in a Congressional hearing, a right made infamous when invoked by suspected Communists and Organized Crime figures on national television back in the 'Fifties, "Men have died face down in the mud for these rights." And so did Lt. Col. North. I'm so thankful to him for having said this.
I wonder whether Pres. Bush has heard him.