[And Also: Interesting argument -- how the President's assurances added to the "legitimate expectations of privacy." Good point.]
It is true that in a case with pretty limited facts (after a woman was a victim of a crime, threatening phone calls btw, a pen register was set up to collect numbers ... cf. the NSA program!), the Supreme Court ridiculously said that we consented to give out the numbers to the phone company, so the phone company in return can give it to the government. [Consider the logic. We consent to give a confession to a priest. The priest thus has every right to tell everyone our sins, including on t.v. programs. And so forth.] Justice Stewart rightly dissented from this cheapening of privacy rights ... he should know, he wrote the Katz (wiretapping in phone booth) ruling underlining privacy, not the semantics is involved here.*
But, the government itself is often an essential source of privacy. Laws are in place, and were federally before wiretapping was deemed a violation of constitutional rights, to guard against intrusion. Some exist here. Though the SC, in the dissent's words did not recognize that "The information captured by such surveillance emanates from private conduct within a person's home or office - locations that without question are entitled to Fourth and Fourteenth Amendment protection" ... the Congress ultimate did.
Congress as representatives of "the people" [read the 4A] can help determine "legitimate expectations of privacy." [Smith v. Maryland noted that this did not include the privacy of our phone numbers in a twist of phrase fitting for those now in power.] This in turn re-enforces our liberty, including of the 1A sort ("Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts." dissenting opinion).
But, this is meaningless to the current administration.
One must not assume that the assault on liberty always originates with the vicious and the corrupt; differences about expressions of loyalty and the means of which their survival can be achieved often are honest differences; and in times of peril the argument the sanctity and privacy of the individual must be invaded to protect the national security has an attractive if not a compelling quality.
-- Louis M Hacker [1968]
The new message is that we are at war and that secrecy is quite important, so even talking about this is dangerous to national security.** Not only the vicious and corrupt buys this line.
Not to be picayune, but we are not really "at war." Seriously. There was an authorization of force, two really (Afghanistan/Iraq), but at issue here is part of the "war on terror." It is an open-ended affair that leads to another quote from the book (The Price of Liberty, of course) ...
Civil liberty lost ground in the cold war. Some has been painfully regained; but it is unlikely that we shall ever return completely to the liberties of the past. And if ideological ever again seems essential to the defense of the state, there will doubtless be a recurrence of the excesses of the 1950's, no matter what the Constitution may say.
-- Walter Millis
Cold "war." That lasted around 50 years. If not in civil liberty effect, it is surely comparable to the current conflict ["Terror War"] in some ways. Long and low level. No wage and price controls. No rationing. No tax increases. None of the slew of limits of a true "war." This is telling.
Anyway, the idea we can not even talk about something that even Republicans in Congress are quite wary about since darn if it seems to violate the law and our privacy to boot, is simply unAmerican. We were lied to as well, of course. Where is that warrant the President promised us? The court*** -- secret court! -- involvement the NSA refused here?
War however also means lies. Sorta why so many were damn concerned about us going to "war" in 2003.
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* Justice Blackmun wrote the opinion. It is unclear if he was not so gung ho about it a few years later when he strongly supported a right of personal privacy in the home respecting consensual sodomy. I reckon calls to one's same sex lover (or perhaps gay friendly organizations) is covered here as well. Since simply calling certain questionable characters, without determining the content of the conversation, can lead to problems, Justice Stewart was right to be concerned back then. Privacy does not stop at one's front door, but it surely is strengthened once you cross inside. This my dear frayster is partly why DUI checkpoints are not on point, nor those at the airport.
** Thus, the imperfect use of leaks as a safety value. Surely troublesome, but when the executive's own oversight boards (or whistleblowers generally) have trouble getting the security clearance to investigate/talk of Congress, what is the alternative? Cf. The Pentagon Papers -- Daniel Ellsberg first tried to get Congress interested. If the regular channels fail, who is to blame?
*** The phone companies (regulated by the government to boot) here surely had pressures ... even a request to submit the matter to FISA was turned down. It is depressing that a virtual rubber stamp is now seen as too much to hope for. The pathetic implication is that after all this, the President will be pulled with gnashing teeth to a position where he has to submit things to a court with a refusal rate even lower than his poll numbers.