Apples, Oranges, and Surveillance.

Glenn Greenwald, erstwhile First Amendment lawyer, wants to take Glenn Reynolds to task for apparent hypocrisy. He even has quotes to prove it (dug up by someone else, of course). The problem is, Greenwald really does need to brush up on his reading comprehension skills before he goes around slinging mud. Let’s take a look at the incriminating Reynolds quote.

Reynolds wrote back in 2001 about his opposition to an act that would have opened up internet traffic to government surveillance. That surveillance would have allowed use of the FBI’s Carnivore program pretty much at the while of any US Attorney or any state attorney general. The law allowed the authorization without a warrant not only for terrorist threats but also for any possible attack “on the integrity or availability of a protected computer” which, as the article linked not only by Reynolds but also by Greenwald explains, would include computer hacking. About this, Reynolds said:

THE SENATE has approved a bill allowing warrantless taps of Internet traffic. This is one of those losses of freedom I was talking about. It may (and should) be ruled unconstitutional. But it shouldn’t be passed at all.

Would this have prevented Tuesday’s attacks? No, because we didn’t know who to tap. Has the FBI wanted this for years anyway, under a variety of excuses (drug dealers, organized crime, kiddie porn, whatever the flavor of the week was)? Yes. Is this bureaucratic opportunism? Yes again.

If the bill can’t be stopped, opponents in the House should insist on a sunset provision — say in two years. If it hasn’t proved its usefulness by then, it should be scrapped. But really, it should be scrapped now.

I emphazised a bit of Reynolds’ quote because it’ll be important in just a moment. Now let’s look at what Greenwald’s big “AHA!”.

Amazingly, if you follow the link which Reynolds included, you will find that the legislation which so offended his libertarian sensibilities (the “Combating Terrorism Act of 2001″) — and which he said was unconstitutional (presumably on Fourth Amendment grounds) — provided far, far less surveillance power to the President than the current Specter bill (or the President’s NSA program), since all that bill provided was that “prosecutors could authorize surveillance for 48-hour periods without a judge’s approval.” And the surveillance allowed was restricted to a very narrow category of Internet usage data..

I don’t think Greenwald is a stupid man, though he is purposefully obtuse here. If he had actually read Reynold’s post, he would see pretty plainly that the problem with the 2001 Act wasn’t what was being monitored nor how long the monirots were in place. The problem was with who were being monitored.

Carnivore, as you may remember, was a program that intercepted data from every single user of an ISP (or wherever else it was placed). Reynolds point is a simple one. Even with Carnivore in place, we had no idea who we were looking for.

Now, on the other hand, we have a much better idea. The fundamental difference between the act that Reynolds opposed and the one that Greenwald now shrieks about is that the act today actually targets specific people instead of, potentially, everyone.

This is Greenwald’s essential distortion. The law that Senator Hatch has proposed is very simple: if you are communicating overseas to a person we have found has ties to terrorists, we are going to monitor that conversation. That’s far different from monitoring everyone using a certain ISP (like, say Verizon or America Online) hoping to find incriminating communications. The difference is twofold and, since Greenwald doesn’t see it, I’ll point it out.

1) Hatch’s act would target perhaps a couple thousand people, at the most. The 2001 act that Reynolds opposed would have places tens of thousands, and perhaps millions, under surveillance.

2) Hatch’s act would limit surveillance to national security purposes, monitored by the NSA. The 2001 act would have allowed surveillance for criminal acts beyond those that would threaten national security, monitored by law enforcement officials.

Those differences are huge and for Greenwald to say that since each is a surveillance program they are equal demonstrates how incredibly unserious he really is on this issue. The two programs are apples and oranges. Reynolds was right to oppose a law that would allow law enforcment to monitor large and mostly random group of people hoping to find some evidence of one of many crimes. He’s equally right to support a program that monitors specific people communicating through known channels tied to known terrorists looking for specific pieces of information for a specific national-security purpose.

As I said earlier, Greenwald is supposed to be a lawyer. He knows the difference between the two acts because, I assume, he can read. If he can’t, he’s should let the people who can have this connversation because he’s unqualified to participate in the debate.

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Category: Fighting the Islamists, Moonbat Nonsense