People sometimes ask if there's ever any downside to disaggregation; I usually answer that the downside tends to be quite rare. But here's an example: once a law is passed, the intent of the lawmakers no longer matters, and prosecutors will use the powers a law grants them any way they can.
Although it's far outside my usual scope, let me explain a bit further. One of the problems with the US's RICO (Racketeer Influenced and Corrupt Organizations Act) statute is that prosecutors seized on the broad powers of the act and applied them to a wide range of ordinary criminal activities. When the USA Act, which became part of the Patriot Act, passed in the wake of the opening attack of the Global Terrorist War, many people (myself included) worried about when (not how, but when) prosecutors would seize on the provisions of the act and apply them to non-terrorist prosecutions.
Tuesday's Wall Street Journal had a front-page article about the prosecution of a man accused of stealing baby food [I believe that no registration is required to view this particular link]. The article attempts to make a case that the prosecution's expansive use of FISA wiretaps, which are permitted under the Patriot Act, were unwarranted.
I think the article fails to make an air-tight case for abuse of FISA under the USA Patriot Act. On the inside pages of the article we learn that the person who was convicted of theft using information collected under the Act worshiped at the same mosque as one of the September 11th hijackers — perhaps there was something to trigger the government's interest after all. Because the prosecution did not reveal the entire contents of surveillance audio recordings, there's no evidence of actual prosecutor misconduct. The article was indeed balanced, but certainly there must be cases where the government's conduct under the Act was truly egregious.
The print edition had a table that compared non-FISA surveillance with FISA surveillance, but it isn't in the online edition. I've reproduced it here:
|Requirement to obtain||Probable Cause to believe person engaged in a crime||Probably cause person is agent of a foreign power|
|Purpose||Limited to investigating crimes||Can mix intelligence-gathering and criminal investigation|
|Scope||Limited to crime-related conversations||Unlimited|
|Duration||Basic limit of 30 days; with extensions, average of 43 days||Typically at least 90 days for US citizens|
|Notice||All targets receive notice after intercept ends||Notice almost never required unless criminal charges result|
|Opportunity to challenge||All targets can attack validity of warrant||Targets haven't been able to learn basis for warrants|
|Opportunity to review evidence||Defense usually receives copies of intercepts||Classified|
You'll note that some of the differences between ordinary wiretaps and FISA wiretaps are inevitable consequences of a tool designed to gather intelligence against foreign agents; for that matter, even the somewhat lax FISA restrictions against government action may be too restrictive in a time of war. But the net result can easily be a surveillance operation against US citizens, carried out under the guise of FISA, and who is to gainsay the prosecutors? Disaggregation of the USA Patriot Act from true acts of terrorism leaves the Act open to abuse by prosecutors, and that's a bad idea.
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