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Commentary

A Second, Even More Unjustifiable Episode of Government Collection of Phone Records



In the rush to sensationalize the Paris terrorist attacks and minimize all other news (for example, even more horrendous terrorist attacks in Nigeria), the American media has conveniently overlooked one major ill effect of the public hysteria it is helping to foment.

In a mini-redux of what happened subsequent to the 9/11 attacks, the American public, by confusing what’s on TV with reality, is demonstrating what experts call "probability neglect." This phenomenon entails people excessively worrying about a rare event—for example, a terrorist attack—but being much less perturbed about much more common ways of dying by eating unhealthy foods, not exercising, smoking, failing to wear a seat belt, etc.

This excessive public fear allows the U.S. government to run wild outside the Constitution and erode the civil liberties that make the United States unique, in the name of saving the populace from "terror"—for example, unconstitutional indefinite jailing without charge or trial, the creation of kangaroo military tribunals as a substitute for civilian courts, illegally suspending people’s right to challenge their detention, torture that violated U.S. and international law, and warrantless surveillance under the Patriot Act and even by violating existing law. In the latter case, the Bush administration blatantly violated the Foreign Intelligence and Surveillance Act (FISA) of 1978, ignored the required approval of the FISA court for surveillance, and thus had the National Security Agency (NSA) illegally spy on Americans. Also, in the name of national security, that same administration stretched the PATRIOT Act to collect—unconstitutionally without a warrant based on probable cause that a crime has been committed—telephone records of potentially every person in the United States.

Now on the back pages of the newspapers (because the Paris terrorist attacks, long over, are still hogging the headlines), we learn that the Drug Enforcement Administration (DEA) also collected, in a database, Americans’ international phone records in bulk from American phone service providers and retained the records even when no criminality was discovered. This episode is another example of the government developing an unconstitutional practice for "national security" purposes and then using it to fight ordinary crime. The illegal practice was exposed only when court documents were filed in the case of a man accused of selling goods illegally to Iran without the proper governmental licenses.

Federal law enforcement agents could access the unconstitutional DEA database to query a phone number if they had "reasonable actionable suspicion" that the number related to an active federal criminal investigation. This practice, as the NSA bulk collection program did, violates the U.S. Constitution in two ways. The Constitution says that any search warrant granted the executive branch by the courts must be specific about what is to be searched and be based on "probable cause" that a crime has been committed. Collecting bulk data is a general warrant, prohibited in the Constitution because the British abused such authority in colonial times to go on fishing expeditions for behavior unacceptable to the crown. No believable scenario exists in which everyone is a suspected criminal. In addition, using the lesser standard of "reasonable actionable suspicion" to query the database does not meet the constitutional standard of "probable cause."

Senator Patrick J. Leahy, the then-chairman of the Senate Judiciary Committee, after discovering the DEA program, wrote to Attorney General Eric H. Holder of the Obama administration, expressing concern about DEA’s "suspicionless intrusion into Americans’ privacy" without judicial warrants and "indiscriminately" collecting "an enormous amount of information about many Americans for use in routine criminal investigations—rather than national security efforts."

Furthermore, of all the routine criminal matters that could be investigated using this unconstitutional database, drug investigations are probably the most trivial of all, because consuming drugs is a victimless crime that probably should not be illegal (at least for adults). Taking drugs is stupid, but people should have control over their own bodies. Many other more severe crimes associated with drugs—murders, theft, illegal trafficking, etc.—would also be reduced if drugs were legalized.

A spokesman for the Justice Department claimed that the DEA’s data collection program was suspended in September 2013, has been terminated, and the data deleted. If true, that is rare good news in the field of civil liberties preservation; however, citizens should still be alert for other unconstitutional or illegal government behavior originating from bureaucratic incentives to exploit people’s excessive fear of being killed by the rare terrorist attack.


Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at the Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office.


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