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May 30, 2006 - Image 5

Resource type:
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Publication:
Michigan Daily Summer Weekly, 2006-05-30

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VIEWPOINT
How to evaluate the NSA program

The fight over CO2
THERESA KENNELLY TiRE'S A REASON

The Michigan Daily - Tuesday, May 30, 2006 - 5

BY DAVID PURO s
The Michigan Daily would bet-
ter inform its readers if it made them
aware of the applicable interpretation
of the Fourth Amendment as well as e
the applicable statutes. In response to t
A Gap in Credibility (05/22/2006), I b
would like to remind readers that the t
Supreme Court has ruled that, while I
the fourth amendment protects against I
unreasonable searches and seizures, I
recording the numbers dialed by an
individual does not constitute a search
under the Fourth Amendment, and
thus no warrant is required. s
In Smith v. Maryland (1979), the I
Court ruled that an individual who e
had a pen register applied to record
the numbers dialed did not have a f
legitimate expectation of privacy
because those numbers were auto- t
matically turned over to a third party
- the phone company. The pen
register recorded the numbers at the t
phone company exchange and not i
inside the home. Furthermore, the t
court was unwilling to rule that soci- t
ety would recognize a right to have
phone records remain private. Thus, it i
concluded that installation of the pen f
register was not a search and no war-
rant was required - the government
could collect this information at will. L
As long as the government has a
specific suspect in mind, the use of U
a device that records dialed numbers
does not constitute a search under the
Fourth Amendment. As applied to
the National Security Agency phone t
records debate, the case could be
argued to contend says that the num-
bers dialed are not private and their
collection by the government is not a
search under the Fourth Amendment.
That said, the NSA program r
raises other statutory concerns. It
may require the government seek
judicial approval based on statute. s
Title III of the Electronic Commu- t
nications Privacy Act says "no per-
son may install or use a pen register I
or a trap and trace device without
first obtaining a court order," which
may be obtained by proving that t
"the information (is) likely to be
obtained by such instillation and
(its) use is relevant to an ongoing -
investigation." The probable cause
LETTERS
Continued from Page 4
that I, as a "savvy consumer," avoid.
That said, my activism comes from
a desire to help those workers that
. Wal-Mart has silenced, and this is not
"misguided."
Aria Everts
LSA sophomore
The letter writer is a member of Stu-
dents Organizing for Labor and Eco-
nomic Equality.

tandard for Fourth Amendment
earches is not required because the
Sept. 11 attacks could constitute an
ongoing investigation.
Moreover, the US Patriot Act
xpanded the definition ofpen registers
o include not just telephone addresses,
but also internet addresses visited and
he senders and recipients of e-mails.
n sum, pen registers are not subject to
Fourth Amendment analysis, but the
ECPA statute requires that the govern-
ment get court approval with less than
a probable-cause standard.
ECPA is not the only potential
tatute applicable to the NSA pro-
gram. Under the Patriot Act, the For-
ign Intelligence Surveillance Act
governs in the place of ECPA when
oreign intelligence gathering is a
'significant purpose"of the investiga-
ion. If the NSA program was based
on FISA and in fact included records
Af U.S. citizens or resident aliens,
he government would have to show
probable cause that the parties subject
o the recording "may" or "are about
o" be involved in a criminal act. The
decision on this is secret, and is made
n front of the FISA court of seven
ederal district court judges.
President Bush could attempt to
authorize the pen register for every
U.S. citizen and legal resident under
authority granted by Article II of the
US Constitution as Commander in
Chief or as an emergency power if he
was unable to meet the FISA require-
ments. Bush has used these justifica-
ions previously and may have relied
on them in this case. The Supreme
Court, however, has made it clear that
a president's power is limited when
acting contrary to the stated policy
sf Congress. In such a case, Congress
equires the executive to follow ECPA
or FISA in order to use pen registers.
The readers of The Michigan Daily
hould be better able to evaluate
he legality of the NSA program as
new details emerge regarding whose
phone records were accessed, wheth-
er the government obtained a court
order and the validity of the justifica-
ion given to support the court order
depending on whether the govern-
ment relied on ECPA or FISA.
Puro is a University alum.
Sports editors should
better use space
TO THE DAILY:
I am writing to express my dis-
pleasure with a small text box located
on last week's back page in the Sports
section (05/22/2006). It read: "Dear
LeBron ... Shave your stupid beard,
ass. And ditch Jordan's number, you
nail-biting prick." Is this the proper
forum for your sports writers to voice
personal opinions on the hygienic
habits of a basketballiplayer? I realize
that we're only talking about a small
text box, but one would think that this
kind of locker-room/living-room-
couch talkcwould not find a voice in a
respectable college newspaper.
Katie Hornstein
Rackham

Just when you
thought he had
stepped out of
the political arena for
good, Al Gore has
made a roaring come-
back - and this time,
he's gone Hollywood.
The 2000 presidential
candidate headlines
a documentary about his pre- and post-
Washington career titled "An Inconvenient
Truth." And the truth Gore tells is that while
America is a major contributor to the rapidly
decaying atmosphere, the government has
been negligent in creating any significant
attempts to curb air pollution.
While Gore's expectation that his docu-
mentary will inspire national interest in
pollution and global warming may be too
ambitious, the message the movie sends is
right on target: The growing pollution prob-
lem - what he calls a "planetary emer-
gency" - must be addressed. America is
perfectly capable of using its resources to
control its emission of harmful gases and
to work with other nations to keep the
planet healthy for future generations. But
alas, money and denial stand in the way of
employing such capabilities.
As the nation with the highest gross
domestic product per capita and also the
highest emission of greenhouse gases in the
world, America has still been unwilling to
designate more monetary resources to fight
air pollution. No amount of evidence has
managed to convince the Bush administra-
tion that the benefits of signing onto envi-

ronmental initiatives - namely the Kyoto
Protocol - outweigh the economic costs.
The Kyoto Protocol was developed by
the United Nations in 1997 and signed by
165 nations, committing them to reducing
harmful gas emissions and participating
in emission trading. The protocol has been
projected to cut gas emissions by 29 percent
by the year 2010. While then-Vice President
Gore signed the protocol, it was only a sym-
bolic gesture of dedication to work on creat-
ing safer air in our country. Only when the
protocol is ratified by the individual nations
does it come into effect - and America and
Australia are the only nations who have not
joined in ratifying the agreement. The rea-
son Bush has given for refusing to accept this
protocolis thatit is not economically efficient
andthe lackofparticipation fromdeveloping
nations could put economic strain on Amer-
ica. However, the government has taken no
alternative steps and remains unresponsive
to growing environmental threats.
The second roadblock - denial - is a
little harder to overcome. Despite consider-
able data demonstrating that carbon diox-
ide levels have risen by up to30 percent in
the earth's atmosphere and the significant
evidence that this increase has led to global
warming, some people are still not will-
ing to accept that steps need to be taken to
reverse this trend.
Most notably, the Competitive Enterprise
Institute is opposed to further governmen-
tal restriction of CO2 emission levels. The
institute, which refers to CO2 as "lighting up
our lives" produced commercials opposing
political initiatives to restrict its emissions,

saying, "Carbon Dioxide. They call it pol-
lution. We call it life." The Bush adminis-
tration has also had its doubts that cutting
greenhouse-gas emissions will lead to any
significant environmentalimpact - it paints
global warming as junk science. In 2002,
President Bush outrightly rejected the notion
that human activity, such as increased auto-
mobile use, contributed to climate changes.
While speculation that global warming
and gas emissions have contributed to the
recent slew of natural disasters and unsea-
sonable weather all over the world is as of
yet unproven, it's hard to deny that such a
rapid increase in emissions is negatively
affecting our environment. Scientific evi-
dence shows that average temperatures
are projected to rise as much as 10 degrees
Fahrenheit by the turn of the next century.
It's a shame that environmental action is a
partisan issue. Democrats and Republicans
both breathe the same air, and only if the
federal government steps in to combat rap-
idly increasing greenhouse gas emissions
will we maintain an ample supply of fresh
air for everyone to breathe. America cannot
simply rely on state governments and grass-
roots initiatives to combat rapidly increas-
ing greenhouse gas emissions. While it
may not make immediate economic sense,
money won't matter when there is no more
fresh air. And, as Al Gore eludes to in his
documentary, recent natural disasters may
only be the beginning of whattmother Earth
is capable of doing.
Kennelly can be reached at
thenelly@umich.edu.

The good fight
JARED GOLDBERG IF NOT NoW, WIHEN?

D uring my
freshman
year, Il
remember reading
about online "blogs"
that many people
- journalists and
others - were post-
ing on. Some were
political, some were
personal; some were boring, and some
were fascinating. When I discovered that
I could sign up to have my very own, I
jumped at the chance.
Over the next several years, my views,
and thus the content on my blog, have
changed, sometimes slightly, other times
dramatically. But never in my wildest
dreams did I ever think my blog would get
me into trouble. Our country's high school
students, however, may not be so lucky.
In Libertyville, Ill., the local school
board recently voted unanimously in favor
of a measure that would require students
involved in extra-curricular activities to
sign a contract stating that any "illegal or
inappropriate behavior" posted on blogs
and websites can be grounds for disciplin-
ary action by the school.
Although administrators will not ran-
domly look at student websites, they will
look in if a "concerned" student, parent
or other individual informs them of ques-
tionable material. As questionable as this
policy is itself, it is not the only example
of a school overstepping its bounds and
punishing students for exercising their
First Amendment rights off of school
grounds and during their own time.
In 1988, the Supreme Court ruled in

Hazelwood School District v. Kuhlmeier
that public high school newspapers do
not have a right to free press if the news-
paper receives funding from the school it
serves. With the advent of blogs, students
who have become victims to censoring
administrators have found blogs them-
selves to be a useful alternative.
After the student newspaper of Peb-
blebrook High School in Cobb Coun-
ty, Ga. was shut down due to "budget
cuts" in May 2005, concerned students,
alleging censorship, started their own
blog in protest.
In a letter to the superintendent of the
district, Joseph Redden, the staffers stat-
ed: "The paper has been well received
by the students and staff, but our most
recent edition was not received favor-
ably by the Pebblebrook administration.
Their negative reaction was in response
to the fact that the front page article pro-
filed two students who were facing the
upcoming difficulties of being mothers
and students simultaneously."
The editorial benefit gainedby student
bloggers notwithstanding, the opportu-
nity for them to criticize school officials
has some high school administrators
banning student blogging on school
computers altogether.
But the most heinous censorship of stu-
dent bloggers occurred once again in Illi-
nois. A student, disgruntled atdisciplinary
policies of his high school, posted criti-
cisms on his Xanga site: "I feel threatened
by you, I can't even have a public webpage
without you bullying me and telling me
what has to be removed. Where is this
freedom of speech that this government is

sworn to uphold? ... None of us ever put
in our Xangas that we were going to kill
or bring harm to any one. We voiced our
opinions. You are the real threat here. You
are depriving us of our right to learn," the
student wrote on May 2.
He was suspended for 10 days, and
now faces expulsion.
The lesson that these students are
learning, unfortunately, should make any
civics or government teacher cringe. Dis-
sent is not to be tolerated. Conform, do as
you are told and do not cause a ruckus.
The Columbine massacre was to student
rights what Sept. 11 was to American civil
liberties. In the name of safety and securi-
ty, we are being robbed of the fundamental
freedoms and conventions that democratic,
liberal societies are supposed to enjoy. We
shouldn't be surprised. School administra-
tors are simply following the examples set
forth by President Bush. Ask Joe Wilson
and Valerie Plame what happens when you
dissent to Bush's grand plans.
Our children are supposed to be the
inheritors of democracy, not totalitari-
anism. What starts out as the censoring
of morally explicit material on a blog by
high school administrators can quickly
escalate into the squashing of dissent of
those same destructive policies.
To all the student bloggers out there,
I say keep fighting the good fight. Now
you understand what the First Amend-
ment is all about: It is not about creat-
ing an army of robots who all agree. It is
about the single voice of dissent.
Goldberg can be reached at
jaredgo@umich.edu.

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