When considering the bounds on government information gathering, we tend to think of lines being drawn by law and regulation.  We look to the Constitution, to case law, and to statutes as the source of, and reason for, prosecutors, investigators and, in recent years, intelligence agencies, to restrain their actions.   Thus, as we rush forward with the debate over the Patriot Act, we look to improve, modify and change the law, with the aim of limiting action. 

But this view is incomplete.  In fact, in many ways non-legal limitations have, at least until recently, played a major limiting role.  These limitations are practical, and are demarked by technology and resources.

{mosads}By way of example, take the rules governing the acquisition, by prosecutors, of telephone call information (what we now call “meta-data”).  Surprisingly, the legal threshold for getting what is quaintly called a “pen register” is very low. But prosecutors rarely sought them, and never at the scale and scope now analogously discussed in Patriot Act debate. Why not?

The reason was simple.   The result of a pen register was a strip of paper, much like an old-fashioned grocery receipt.  On the strip were the telephone numbers called and the time and duration of the call.   The process was to take the strip of paper, and then laboriously look up each number in a reverse telephone director.  In New York, this was provided by a company called Coles, and each volume weighed as much as a small horse.  A general rule of thumb was that a day of pen register on a busy phone required a day of paralegal labor to “process” the take – and that process resulted in a list of numbers and names that was itself not so valuable. 

Similarly, if you subpoenaed telephone records directly from the phone company (similarly easy under Grand Jury rules), you could, if not careful, end up with boxes of hard-to-read telephone bills – and again the tyranny of time and labor imposed limitations.  The same analysis applied to all different kinds of records – business records financial records and travel records. In fact, the transactional cost of acquiring, processing and storing the information was often the single most important limitation on prosecutors’ discretion.

The digital revolution has swept all of this away, reducing the transaction costs of such information acquisition to near zero.  All of the “pen register” data, for all of the phones in, for instance, Manhattan, can be gathered and provided digitally, with a simple keyboard-driven process.  The results of that gathering can be sent over the Internet at little or no cost, and instantaneously.  Software is available, and can be run on the low-end laptop I am writing this article on, that can slice, dice, and analyze the results, performing reverse telephone lookup, link analysis, pattern identification and graphic representation.  All basically for free, and in nearly no time at all.

Why does this matter?  Because caught up in a debate on legal limitations, we are ignoring the withering away of practical limitations.  Section 215 of the Patriot Act (being debated as a write this) theoretically allows the government to demand, for instance, all of the MasterCard transaction records for the last year in the whole country.  A few short years ago, such a demand, even if legally possible, was practically impossible – it would result in literally tons of paper, millions of documents, an perhaps billions of transactions.  Now it is possible, almost trivial. 

This matters because the effect is to remove the practical limitations on government information gathering, leaving law and regulation, along with good sense, discretion and (for some) elections, alone as limitations. This means that trying to anchor policy debates in “traditional” information gathering is largely unhelpful at best – misleading at worst.  A better approach would be to be explicit about the vanishing practical limitations on information gathering, and be honest about the balancing required in developing law and regulations.

Cash, a lawyer at Day Pitney, was chief counsel to the minority on the Senate’s Judiciary Committee’s  Subcommittee on Terrorism, Technology, and Homeland Security, and chief counsel to Sen. Dianne Feinstein (D-Calif.). He was deeply involved in much of the legislation developed after the 9/11 attacks, including the USA-Patriot Act, the Department of Homeland Security Act and the Intelligence Reform and Terrorism Prevention Act, which created the position of Director of National Intelligence. He also served as an intelligence officer with the Central Intelligence Agency.

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