Policing Phone Calls and Perverting Principles

May 18, 2006 -- The revelation that the Bush administration has secured records of millions of phone calls from three telecom companies should shock every American who is concerned about freedom. Apparently it does not. A poll the day after the disclosure found that two-thirds of Americans have no apparent problem with this practice. Perhaps those opinions will change as more details are revealed. But in any case, for the sake of our freedom, Americans would do well to do what most politicians refuse to do: think in terms of principles.

The proper purpose of government is to protect the lives, liberty, and property of citizens. Preventing terrorist attacks certainly falls under this principle. Administration defenders argue that its open-ended approach to tracking phone calls is simply part of that effort.

Of course, actually listening in on rather than just tracking every call placed—if it were possible—might reveal not only terrorist plots but plans for domestic murders and other crimes as well. Yet we also recognize that governments can be as dangerous to our rights as criminals and terrorists. That's why, in the Constitution, America's Founders created three separate branches of government—executive, legislative and judicial—and a system of checks and balances so that none of these could easily limit our liberty.

If the executive branch suspects someone is planning a crime, it must go to court for permission to wiretap a phone. If current wiretap laws don't cover new technologies, the executive might go to Congress to amend the law. But the Bush administration is ignoring this fundamental principle of checks and balances by strong-arming private companies to turn over phone records without any oversight by the courts or Congress.

The administration has already shown its disregard for this principle by refusing to secure quick permission from a special court set up for such cases to wiretap suspected subversives calling from overseas to the United States. Nor has it gone to Congress to amend current laws to deal with what few cases might arise in which there isn't enough time to seek court approval before the fact.

It's one thing for law enforcement officials to seek cooperation from private parties to stop specific crimes; even without a warrant, local merchants might work with the police to apprehend mafia thugs who are shaking down neighborhood businesses.

But the cooperation the administration seeks for phone monitoring goes far beyond this. In effect, the administration is deputizing private parties to police their customers.

In recent years, there have been government attempts to deputize bank tellers, requiring them to ask customers what large deposits and withdrawals are for—as if drug pushers are really going to answer, "I'm scoring a trunk full of coke tonight." Responses were to be reported to authorities, including your angry retort that it's none of the teller's #@!&% business.

This principle would make snitches out of those with whom we do business. In a society already rife with suspicion, policies based on this principle create a big red sign reading "Trust No One!"

Some individuals—especially conservatives—argue that if Americans have nothing to hide, they shouldn't mind the government monitoring who they call, how much they deposit in the bank, or anything else. But conservatives who make such arguments might ask, "What will I think when President Hillary Clinton rules in accordance with this principle, perhaps applying it to other enterprises and issues?"

Perhaps local governments increasingly will attempt to collect taxes on Internet business transactions; the city of San Antonio is currently suing 16 online travel agencies for not paying some $10 million in various hotel levies. Perhaps the federal government will get involved in this policing or try again to impose its own taxes on a cyberspace currently free from its revenue collectors. Or perhaps there will be calls from the kinds of international regulators of whom the Clintons are so fond, to crack down on tax-evading transactions with websites based in other countries.

Perhaps President Hillary will strong-arm AOL and Yahoo to turn over records of your visits to eBay and Amazon or will declare that banks must allow Janet Reno's second attorney generalship to do a full cavity search of your accounts. Hey, they're just looking for patterns of criminal behavior, that is, you greedy scofflaws trying to avoid paying your fair share to government.

What do you think now?

Principles are necessary guides to individual choice and government policies, to take us beyond the range of the moment and to show us the consequences of a course of action. The Bush administration, by ignoring the principles that check government power, might think that it's tracking down terrorists today, but in fact it is undermining freedom now and in the future.

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