[This blog post is the second in a third on the Patriot Act article extract.]
Because Internet communications are “electronic,” ECPA automatically applied, but the law was not written with Internet communications in mind. Moreover, the technology between telephony and data networking is different, and that difference translates into a Fourth Amendment anomaly. The equivalent to “conversational detail” in data networking,” what technologists call “net flow logs,” could in some instances when placed into a web browser be resolved to web pages that immediately revealed content. Also, depending on how routers were configured, or electronic taps on data transmissions, some “conversational detail” in data networking might also capture “headers,” i.e. “To,” “From,” “Date,” and “Subject” fields of emails. Again, content without a warrant.
Thus, the Patriot Act did not intentionally alter the divide between “ conversational detail” and content that tracked Fourth Amendment jurisprudence. Changes in technology were responsible for that difference. Law enforcement could, and did, however, exploit the anomaly inherent in the technology. In 2005, the New York Times revealed that the Bush Administration was routinely conducting illegal interceptions of electronic communications. In many cases, captures were made without any due process. Moreover, Congress subsequently gave immunity to the networks that allowed for the captures. And in many other situations, where the Department of Justice (DOJ) did go through the courts using the cursory process of requesting conversational detail for data networking communications, they did not warn the entity served with a subpoena about the anomaly. Later research revealed that some entities wrongly provided the full content of email messages. The DOJ never refused or turned the material away.
Over the course of a decade, the American public’s response to the Patriot Act brings one in mind of the Wizard of Oz scene when the bad witch puts Dorothy and her friends under the spell of poppies. The revelation that the Bush Administration obviated the courts, sustained by 2010 case that confirmed the illegal nature of their actions, elicited no meaningful public response. Two renewals of the Patriot Act have occurred, with little pushback. The Obama Administration has done nothing to reset the balance of civil liberties and national security in the area of Internet communications. Off in a sweet slumber, the American public provides neither the President nor Congress with the incentive.
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