We Are Out of Luck

 Posted on September 02, 2013 in Uncategorized

From the New York Times:

Hemisphere covers every call that passes through an AT&T switch - not just those made by AT&T customers - and includes calls dating back 26 years, according to Hemisphere training slides bearing the logo of the White House Office of National Drug Control Policy. Some four billion call records are added to the database every day, the slides say; technical specialists say a single call may generate more than one record. Unlike the N.S.A. data, the Hemisphere data includes information on the locations of callers.

There is nothing wrong with AT&T keeping these data. Nobody should expect AT&T to purge its records regularly.

The problem-the violation of our privacy, and therefore of our freedom ((Because privacy = freedom.))-arises when AT&T is required to provide these data to the government, or, as here, where AT&T provides these data to the government voluntarily.

"What's that," you ask, "voluntarily?" The NYT article says that the government queries AT&T's records "using what are called ‘administrative subpoenas'; those issued not by a grand jury or a judge but by a federal agency, in this case the D.E.A." And like AT&T's spokesman says, "[W]e, like all other companies, must respond to valid subpoenas issued by law enforcement."

But AT&T isn't just responding to administrative subpoenas: AT&T employees are embedded in "High Intensity Drug-Trafficking Area" (HIDTA) units in Houston and elsewhere.

More importantly, AT&T, like any other company, does not have to respond to an "administrative subpoena." An administrative subpoena is just a piece of paper; there are no consequences for ignoring it. The DEA cannot enforce its administrative subpoenas.

Don't take my word for it, read the law ((It irks me that non-lawyer writers, told what the law is by someone with an interest in the law being that way, rarely bother to fact-check that aspect of the story. "Inside baseball," they'll say, when in fact the lie about the law is sometimes the bigger story. The text of the law is available to everyone, and a legal interpretation is rarely more than a couple of phone calls away.))-in this case, 21 USC §876:

(c) EnforcementIn the case of contumacy by or refusal to obey a subpena issued to any person, the Attorney General may invoke the aid of any court of the United States within the jurisdiction of which the investigation is carried on or of which the subpenaed person is an inhabitant, or in which he carries on business or may be found, to compel compliance with the subpoena. The court may issue an order requiring the subpenaed person to appear before the Attorney General to produce records, if so ordered, or to give testimony touching the matter under investigation. Any failure to obey the order of the court may be punished by the court as a contempt thereof. All process in any such case may be served in any judicial district in which such person may be found.

In other words, if you ignore a DEA "administrative subpoena" the government can ask a U.S. District Court in your judicial district to order you to do what the subpoena requests; ((Judicial review!)) only if you refuse to follow the court's order can you be punished.

In still other words, compliance with a DEA administrative subpoena is strictly voluntary.

If AT&T-or any other company-had customers who valued their freedom ((Privacy.)) enough to choose privacy over convenience, the company would refuse to comply with DEA's administrative subpoenas, instead requiring the agency to get a court order for the production of records.

But most Americans don't value their freedom beyond the the freedom to shop at Walmart. To most Americans, "freedom" is just a word, the spoonful of sugar that makes the authoritarianism go down. ((As Sarah Palin says, "national security freedom.")) Despite the Bill of Rights' long slide into irrelevancy the bulk of Americans know they're free because Toby Keith told them so.

It may appear that more people are complaining more about lost freedoms now than in the past, but if they have a problem with government's infringement on their freedom, it's this particular government's infringement; once a Republican is back in the White House, most of those who have come to the cause of freedom in the last five years will return to their previous comfortably complacent authoritarianism. ((And those who trust Obama with the reins of power will rediscover their inner libertarian. If everyone who would rather vote Libertarian than Democrat and everyone who would rather vote Libertarian than Republican voted Libertarian, there wouldn't be a Republican or a Democrat to be found in any elected office.))

After all, most people think that they have nothing to hide from the government-at least, their sort of government. And most people are probably right: they have no secret thoughts and no dangerous ideas. Everything they believe has already been published somewhere, else they would not believe it.

But this is a country built on secret thoughts and dangerous ideas, and even those who have neither might someday have children or grandchildren, and those progeny might have such thoughts and ideas. If they do, they will thank their ancestors for preserving their privacy or curse them for surrendering it. ((If they do not-if lacking the spark of liberty is strictly hereditary-then freedom is doomed anyway.))

Future generations' privacy and freedom, not to mention our own, is in the hands of people who post pictures of their children on Facebook. These are not people who would dump a phone provider ((Even if it would do any good.)) for giving the government whatever it wants.

Knowing this, AT&T and the corporations that gather our data have no reason to do anything to impede the government's access to that information.

So you see, it's not that they "must," but just that they "will."