The Friday Fantastic Four #7.

1. Featured Law-Oriented Blog.

This week's featured law-oriented blog is f/k/a a unique legal blog that melds legal news and the fine art of haiku. You'll find legal news items, but also so much more.

For example, this morning brings a post about a story of a jail break and the resultant consequences for jail personnel held responsible. A running theme in the f/k/a report is the number six: the inmate was counted as present six times after he had escaped; the guards were responsible for keeping track of six inmates; etc. AND, the report is followed up by six haikus.

f/k/a
quite a unique blog
to enjoy

2. Featured Law Commentary.

This week I want to highlight two recent commentary pieces, both relating to the NSA Surveillance Program. First up, a February 24, 2006, Findlaw piece by John Dean about why people should worry about whose communications are being intercepted and about why it's not enough to just be deferential in the name of "finding terrorists."




Dean recognizes that both parties have raised questions and issues about the NSA program and that the increasing dialogue keeps giving rise to additional issues that require attention. Specifically, one "is the question why anyone should worry about the government listening in on conversations if they are doing nothing wrong." This is a typical response to the situation by a good many non-lawyers who have an instinctive reaction that they have "nothing to hide." This is especially true in the post 9/11 world where many citizens are willing to take the approach that they are "happy to give up [their] privacy . . . if it helps to find terrorists."

Dean argues that one reason people should be concerned and not so willing to forego privacy rights just because they have nothing to hide is that data mining programs make mistakes. Dean explains:

Experts believe the way NSA is handling such masses of digital traffic is probably by what is called "data mining" - the use of computer algorithms to search automatically through massive amounts of data.

They also believe that the greatest threat that such non-human snooping has for the average American is that it frequently produces false positives. This is a point that was made by Jim Harper, Director of Information Policy Studies at the Cato Institute, during the ACLU's panel discussion.

Data mining's search tools, according to experts, are not particularly accurate at flushing out terrorists. Indeed, such electronic sleuthing frequently makes mistakes in who it tags as targets.

The government may claim data mining is accurate - but Americans ought to be wary: Even greater claims of accuracy are typically made for fingerprint identification, and that has already gone grievously wrong in one notorious war on terror example.

Fingerprints on a bag holding detonators involved in the 2004 Madrid subway terror attacks were supposedly linked to Portland, Oregon attorney Brandon Mayfield. As a result, Mayfield - also suspicious in authority's eyes because he'd converted to his wife's religion, Islam -- found himself in solitary confinement for two weeks as a "material witness." But in the end, the FBI was wrong; the prints weren't his.

Further, Dean points out that there is a concern about where all the "mined" data is going. Even if you don't worry about the government misusing the data collected through a data-mining program, you should worry about the very real possibility of that information being obtained by someone you would not trust, such as a hacker. Dean notes that "Such hacking could trigger scenarios that range from blackmail to graymail to identity theft, to others knowing more about you and your life than even you may know."

I think Dean's concluding paragraph is a good point to keep in mind in this discussion:

To those who don't worry about giving up their rights, programs like the NSA's may seem fine. But others of us appreciate the blood and treasury this nation expended, both indirectly and directly, in securing those rights. And I am convinced my generation will fight to the end to prevent the zeal of good intention in fighting terror, from letting the terrorists win by permitting the government to take those rights.

The second commentary is also on the NSA surveillance program. Heidi Kitrosser a visiting associate professor at the University of Minnesota Law School, had a Jurist piece on February 27, 2006. The gist of Kitrosser's commentary is that the administration's arguments in defense of the program push the limits of Presidential secrecy beyong proper constitutional bounds.

Kitrosser's piece makes the case for interpreting the Constitution as recognizing that secrecy is often a legitimate tool for the President to use in executing legislative policy, but that the propriety of such secrecy must itself be subject to careful checks and balances by the legislature to prevent tyranny. "White House arguments in defense of the secret spying program are antithetical to the Constitution’s protective balance of powers."

Kitrosser notes that:

Finally, experience since discovery of the NSA spying program reflects the dangers of unchecked Presidential secrecy. First, while the program eventually came to light due to leaks, the program took place for roughly three years without public or general congressional knowledge and thus with no opportunity for political oversight. Second, while the White House apparently notified a handful of congressional leaders about the program while it was ongoing, reports indicate that the leaders were instructed that the information was classified and that they were to share it with no one, a situation hardly conducive to oversight. Indeed, a striking aspect of Attorney General Gonzales’ recent Senate testimony on the program is the tension between his claim that the notified congresspersons surely could have “done something about [the program]” were they concerned about it, and his repeated criticism of the leaking that led to the program’s disclosure. Third, in spite of public and congressional concern since the program came to light, the White House to date has refused to release key details necessary to understand and evaluate the basic parameters of the program, including precisely when the program began. Fourth, a number of factors suggest that the White House’s reticence to answer questions in the wake of the program’s revelation is politically strategic. These factors include the Attorney General’s relative amenability to answering questions posed by senators friendly to the program and President Bush’s sudden public disclosure of details of a terrorist plot against Los Angeles in the wake of the program’s revelation. These examples, by no means exhaustive, illustrate the President’s special capacity for secrecy and the dangers that such capacity breeds. Such illustration reveals the wisdom of the Constitution’s structural protections against unchecked Presidential secrecy and the damage that can be done by erosion of those protections.

3. Featured Non-Law-Oriented Blog.

This week's featured non-law-oriented blog is So Quoted. Wherein many a good post is found on many an interesting topic.

Recent highlights that I recommend:
Lost: What Claire Saw (March 3, 2006)
"Blasphemy? Blasphe-you!" (March 2, 2006)
"Kellie Pickler is a big fat fatty mcfaker" (March 1, 2006)

4. Just for Fun.

If you have a little time to kill, go check out Curious Auctions, where you'll see a collection of "curious and weird items found for sale on eBay and other auction sites." Potentially hours of fun to be had browsing the bizarre things people are trying to sell on online auction sites.


Previous Friday Fantastic Four Posts:
February 24, 2006 (FFF #6)
February 10, 2006 (FFF #5)
January 27, 2006 (FFF #4)
January 20, 2006 (FFF #3)
January 6, 2006 (FFF #2)
December 30, 2005 (FFF #1)