Decius wrote:

This commentary provides more of the debate. The main commentator seems to echo the modern conservative view that the legislature needs to be the final arbiter of civil liberties. Forgive me for being tactless, I think in the general case this view is stupid. The whole point of civil liberties is to limit the power of the democratic government with regard to the rights of individuals. Thats what the court system does. The legislature cannot be its own check and balance. The question here is whether this matter rises to the level of a civil rights issue. I think it does.

There is a healthy debate in the threads...

I think it is absolutely a question of civil rights. Besides, since when did we expect the legislature to throw whatever provisions it wants into laws and expect the courts to validate their existence? I'm not showing my naivete...I realize that's how it usually works and I'm all for it [hooray Monkey Trial]. However, it's my understanding that that's the reason for two houses of congress. My angle in the debate is that internal checks and balances should be just as relevent to protecting civil liberties as external ones. A failing of the two-party system, perhaps?

My interest in this article surrounds the Miller case and the following statement:

There are basically four kinds of NSLs, each of them delineating an exception to a statute protecting personal information in the hands of a third party. The most commonly used NSL exists in the Electronic Communications Privacy Act and allows access to telephone and electronic communications transactional records. The FBI is granted access to financial records by an NSL established in the Right to Financial Privacy Act, and to credit information by two separate NSLs found in the Fair Credit Reporting Act. All of these authorities in some way derive from the 1976 Supreme Court decision United States v. Miller, which held that there was no constitutionally protected privacy interest in business records entrusted to third parties.

WTF? I think anyone who's received 8 credit card offers in the mail in one day or canceled their Wachovia credit card to avoid being mailed those nasty credit card account checks doesn't feel like they've so much "entrusted" their business records to credit agencies as been hoodwinked into doing so. Do you have a choice, honestly, in whether or not to entrust your records to someone else? What are you supposed to do -- give yourself credit lines and checking accounts? The language of the Miller law is purposely ambiguous to facilitate the NSL's and is, I think, the source of all of this evil. Courts, congress, whatever...bad laws that help create other bad laws are everyone's business.

Goddamn government with their deceptively backwards legislation names. "Financial privacy act...{cough, cough}...that grants access to your financial records with absolutely no method of civil recourse."

-janelane, public policy newborn

RE: The Volokh Conspiracy - More on National Security Letters: