So while the Hunt for Edward Snowden continues and our attention is drawn toward the hand-wringing that some clerk in the Pentagon Basement (probably an Air Force Staff Sergeant, because they’re as common as field mice and not really needed for combat operations) has the ability to monitor how many times we alt-tabbed between a YouTube Bubblegum Pop playlist and dirtyninjasintrouble.com, we’re forgetting something.  And that something is kind of important, because it goes to the root of the invasion of privacy and the decimation of civil rights in a more direct way than any traffic light camera.

Remember in April, when we’d never heard of any of this Project Prism noise?  The first time the news reported that maybe the administration might be poking into things it shouldn’t be?  If you’ve forgotten (and believe me, it’s easy to forget, when compared to the possibility that the NSA has access to phone logs showing you’ve spent more time talking to the Bengali girl with the fluid voice than is proper for a normal customer service call), I’ll remind you.  In April, a Fox reporter claimed that the FBI had used a questionable warrant to subpoena all of his telecommunications activity.  At about the same time, the Associated Press reported that the feds had done the same thing to almost all of their senior staff.

Why is this so bad?  Well it goes to the Freedom of the Press clause of the First Amendment to the Constitution.  There are two reasons (besides actual criminal investigation–which has been shown to not be the case) why a federal agency might want to tap the phone lines and access the logs of a news reporter or agency.  The first, and this probably applies to the Fox reporter, is probably a simple effort to discredit the reporter.  Given that Fox News seems to be widely viewed as little more than a tabloid on video, that might, on the face of it, make a lot of sense.

Except that our whole view of Freedom of the Press is based on a single lawsuit between a politician and a publisher who made Fox News look like the Wall Street Journal.  In 1733, John Peter Zenger published his New York Weekly Journal with the express purpose of trashing William Cosby, the appointed royal governor of New York.  He did a masterful job of it (Cosby made this easy by being a complete douchebag), so masterful, in fact, that Cosby brought him up on charges of seditious libel.  Arguing directly to the jury at trial (the judge had proven himself to be a Cosby sock-puppet), defending attorney Alexander Hamilton showed that almost all of what Zenger had printed was demonstrably true in its factual bases (if somewhat extravagant in its interpretation).  The jury found Zenger not guilty, and established the American principal of Freedom of the Press.

Essentially, we have Freedom of the Press because, in the United States, we believe the Press has the right and the duty to inform the populace of the activities, good or bad of the government.  For this reason, Rachel Madow can say that a new bill is designed to save our children while Sean Hannity can say the same bill is designed to pick our pockets and hand it over to drug-addicted welfare cheats, and they are both legally entitled to do so, as long as, at some point, they report the actual reading of the bill.  So, while one may not agree with the interpretation of the facts, it is questionable for the government to use its power to undermine the validity of those facts.

What is even more dangerous, and clearly shown in the AP taps, is that the feds aren’t just trying to undermine credibility, but are, in fact, attempting to undermine the Press’s ability to gather facts at all.  There is only one reason to tap the communications of an entire organization, and that is to get around the Constitutional and legal protections afforded to reporters and their access to sources.  Reporters go to jail on principle all the time, protecting the confidentiality of their sources, and most of the time, this principle is held up on appeal.  Through the AP and Fox taps, the FBI can avoid that mess by finding and going after those confidential sources directly.  These are usually whistle-blowers who, acting out of love of their country and their liberties, report wrong-doing by the government so it can be stopped.  They trust the reporters to maintain their anonymity until such time as the point is moot, and the reporters trust in the inviolability of the First Amendment to keep federal agencies from punishing these brave men and women for doing the right thing.

The communications taps disclosed in April undermine that faith and trust to astounding levels.  It creates the sort of environment you expect to see only in an episode of The X-Files, where good people are harassed and harangued, having their lives destroyed or even ended, because some tinpot martinet didn’t want it disclosed that the State Department spent over $300,000 to boost its Facebook friend count.

That’s the danger.  We depend on our news sources to accurately report on what our government is doing behind closed doors.  They depend on confidential informants to open windows into those smoke-filled rooms.  We can’t allow the government to act in darkness, because, as I’ve said before, government is a treacherous servant.  The lights must always be on and the windows open, or we allow liberty’s torch to be extinguished.

Of course everyone with a working concept of the enormity of the data involved in Project PRISM and the cell phone record grab is surprised that anyone would even want to do it.  It would be more productive to buy a million monkeys and throw them in a room with a million typewriters to see if one can come up with a working script for Hamlet II:  the Revenge than it would be to hire and maintain the staff necessary to trawl through the reams and reams of minutiae generated by the Modern American Desperate Need for Contact (cheaper, too).

Yes, I know that much of the grunt work is done by crawlers similar to webspiders that look for key words and country codes before passing them on to a human (or a more advanced program), but even with flag catchers, the resultant mountain of data has to be tremendous.  Those crawlers don’t have discretion, so they can’t tell the difference between a Hezbollah operative contacting his handler in Tehran and a Persian immigrant calling his mother (assuming she’s allowed contact with an American phone number) any more than your IT department’s traffic managing software can tell the difference between your websearch for “kilts” because you promised a friend you’d dress up for the local Renn Fest and Frank from Accounting’s search for Catholic School Girl porn.

The thing is, the point of data mining is not to acquire working evidence of any kind.  The point is to justify other questionable methods of obtaining “evidence” after the fact.  The Director of the CIA cited (actually, he only cited four, but he referenced) fifty separate potential incidents forestalled by the sweeping invasion-of-privacy programs.  The Director of the NSA (notably, an Army General who was not asked to resign his commission before accepting a high-ranking seat in the civilian government) was less optimistic, say “at least ten” and “dozens” alternately during interviews and public appearances.

But here’s the thing, of the four incidents he cited, he only gave details on two and even those details were sketchy and didn’t show evidence that supported his claim.  The most noted one, a “planned attack on Wall Street that could have been as bad as 9/11” resulted in a few arrests and one guilty plea, all for money laundering.  The principal in this case, a naturalized citizen living in Kansas, had been funneling money to a Yemeni organization that General Alexander claimed was connected to Al ‘Qaeda.  He didn’t name the organization, nor did he show any evidence that they had made any notable moves toward their alleged plan of bombing Wall Street.  He simply said that the fact the accused parties were convicted by a jury shows that they must have been serious.  Except the accused parties were all convicted of monetary crimes under RiCO, not any sort of Terrorist activity.

In any case, you catch the movement of money by tracking international bank transfers (this is a legal activity done every day by the Federal Reserve, since  the full faith and trust of the US Treasury is put to the test every time US currency leaves the country in any way), not by tracking phone conversations.  It’s far more likely that they used the data mining to compile ex post facto evidence for a jury to consider so they wouldn’t have to admit that they had been hacking into privacy-assured banking systems in other countries.

The only other way to make efficient use of data mining is to use it to get a back-dated warrant for something you’ve already done.  A wire-tap, say, or a tracking worm.  Of course, the FISA courts were set up in the ’80’s to check all that stuff an make sure it’s all on the up and up, right.  I mean, if you can’t trust a secret court with no appeal or public regulation, who can you trust?  Father Gustavo can’t use squassation as a means of getting your confession and a list of fellow heretics unless the Grand Inquisitor says it’s okay, right?

But then, if you’ve done nothing wrong, you don’t have anything to fear, do you?  It’s not like making a donation to a foreign aid charity can be turned to look like anything bad.  You know, unless that charity is located in Somalia, or, well anywhere with a foreign-sounding name.  But it’ll probably be all right.  Nobody really cares about the web research you’ve been doing for your planned vacation to Uruguay.

You do realize that Uruguay has no extradition treaty with the United States don’t you?  Why would you plan a “vacation” in a country with no extradition treaty?