Expanded Internet Surveillance? Well, Kind Of

There are two kinds of counterterror reform that happen in the modern world: expansions, and updates of existing law to meet new trends.

Surveillance law is, obviously, abnormally sensitive to technological changes. Especially where it’s narrowly drawn to avoid encroaching protected freedoms, surveillance law needs regular updates to continue making sense, and working effectively. Classic FISA is a perfect example: until FISA reform, a non-US person ordinarily subject to FISA surveillance could avoid the law’s carefully drawn, limited provisions by passing e-mail conversations between foreign nationals through a domestic email server. Even if the government tapped the foreign lines, because it implicated an American server, a foreign national became non-surveillable. Clever, no? FISA reform closed the loophole. That was necessary.

So is this latest reform proposed by the Obama administration which, as concern troll par excellence Hot Air notes, allows the government to obtain electronic transactional records with a showing somewhat short of probable cause.

Although it will sound otherwise to those not acquainted with surveillance law, this is a good-faith expansion of an existing surveillance method known as the “pen” register. A pen register taps phone lines and produces records of calls placed and received, but not their substance. The government can issue one on the basis of a very limited showing. Although the information it produces is limited, the pen register is vitally important to winding up terrorst networks: if you know one guy, you get the names of his compatriots, and then obtain warrants (upon probable cause) to check them, too. Invasive? Somewhat. Useful? Yes — and a pretty good compromise between liberty and security. All Obama’s new tool will do is allow the government to obtain “pen” registers of e-mail accounts. Clever, and needed, to wind up sophisticated networks that’ve learned to avoid tappable phones.

Note, too, how far the Bush administration went beyond these limits: the first PATRIOT Act, pre-Democratic reform, allowed the government to issue letters to your phone or internet company demanding that same information, but barred the companies from (1) informing you or (2) contacting a lawyer. Ouch.

I’m not saying this is perfect. In a perfect world, we wouldn’t need surveillance. But the best we can hope for is an executive who understands how delicately surveillance law should be expanded, and does nothing more than that. We’ve got one, now, thankfully.