Having labored as a police reporter in the days before the Patriot Act, I can assure all there has always been a stage before the wiretap, a preliminary process involving the capture, retention and analysis of raw data. It has been so for decades now in this country. The only thing new here, from a legal standpoint, is the scale on which the FBI and NSA are apparently attempting to cull anti-terrorism leads from that data. But the legal and moral principles? Same old stuff.
Allow for a comparable example, dating to the early 1980s in a place called Baltimore, Maryland.
There, city detectives once began to suspect that major traffickers were using a combination of public pay phones and digital pagers to communicate their business. And they took their suspicions to a judge and obtained court orders — not to monitor any particular suspect, but to instead cull the dialed numbers from the thousands and thousands of calls made to and from certain city pay phones.
Think about it. There is certainly a public expectation of privacy when you pick up a pay phone on the streets of Baltimore, is there not? And certainly, the detectives knew that many, many Baltimoreans were using those pay phones for legitimate telephonic communication. Yet, a city judge had no problem allowing them to place dialed-number recorders on as many pay phones as they felt the need to monitor, knowing that every single number dialed to or from those phones would be captured. So authorized, detectives gleaned the numbers of digital pagers and they began monitoring the incoming digitized numbers on those pagers — even though they had yet to learn to whom those pagers belonged. The judges were okay with that, too, and signed another order allowing the suspect pagers to be “cloned” by detectives, even though in some cases the suspect in possession of the pager was not yet positively identified.
All of that — even in the less fevered, pre-Patriot Act days of yore — was entirely legal. Why?
Because they aren’t listening to the calls.
Here is what does happen
In Baltimore thirty years ago, after the detectives figured out which pay phones were dialing pagers, and then did all the requisite background checks and surveillance to identify the drug suspects, they finally went to a judge and asked for a wiretap on several pay phones. The judge looked at the police work and said, okay, you can record calls off those public pay phones, but only if you have someone watching the phones to ensure that your suspects are making the calls and not ordinary citizens. And if you make a mistake and record a non-drug-involved call, you will of course “minimize” the call and cease recording.
It was at that point — and not at the earlier stage of gathering thousands and thousands of dialed numbers and times of call — that the greatest balance was sought between investigative need and privacy rights. And in Baltimore, that wiretap case was made and the defendants caught and convicted, the case upheld on appeal. Here, too, the Verizon data corresponds to the sheets and sheets of printouts of calls from the Baltimore pay phones, obtainable with a court order and without any demonstration of probable cause against any specific individual. To get that far as a law-abiding investigator, you didn’t need to know a target, only that the electronic medium is being used for telephonic communication that is both illegal and legal. It’s at the point of actually identifying specific targets and then seeking to listen to the conversations of those targets that the rubber really hits the road.