Maybe because it wasn't wiretapping?

There is a fascinating post over at Ars Technica that would explain a whole lot about this executive order. They make the case that what is happening is not traditional wiretapping where the NSA identifies a phone, and listens to every call. Instead, they say, the NSA might be wiretapping many, many phones at once (many more than they can feasibly listen to) and are using computers with voice recognition software to search for particular phrases. One can instantly see how this would be useful in actually detecting an attack in time to prevent it.

Furthermore, it would explain a lot of the strangeness about how the administration has approached this. They couldn't go to FISA court, because they weren't seeking a warrant for one phone or even one person or group. The only way such a system would be useful would be to cast a very wide net (say, every call going in to or coming out of Afghanistan). You can't argue probable cause for a whole country. The system, by definition, is going to monitor many innocent people.

It would also explain why the administration was so reluctant for information about this to get out. The terrorists have to expect that we were monitoring calls whenever we knew where to look. They might not know that we can check every call coming out of Afghanistan for certain names or phrases. Not until now, anyway.

The Ars Technica article explains why they think this is what's going on, but they don't get into the public policy implications so much. Even if they are wrong in this case, this sort of monitoring is going to become more and more possible.

So, Bellmaniacs, how should our free society apply the dictates of the Fourth Amendment to this new kind of "search?" Let's break this one down and figure it out before the Alito court gets to it.

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