The 2nd Circuit Court of Appeals has vindicated Jim Sensenbrenner’s interpretation of the Patriot Act. Specifically Section 215 and essentially the collecting of information demonstrably and directly related to any possible terrorism case or suspect. In other words, the wholesale gathering of meta-data on American’s telephony footprints was shot down. However, the 2nd Circuti Court of Appeals did not rule on the constitutionality of such mega-data gathering by intelligence agencies. Nor, needless to say, did it rule on the constitutionality of the Patriot Act itself.

It must be kept in mind, that that is precisely what the ACLU eventually wants. A SCOTUS ruling that shoots down the Patriot Act and lets people get on with their lives, whether those lives happen to involve planning a dirty bomb explosion in America, for example. Or planning a family vacation with their kids. This decision by the 2nd Circuit, is something less than that, thank God. And let us not forget the ALA – American Library Association – and it’s panic in 2005 over the fact that intelligence agencies might have unfettered access to the records of what books and articles people read in libraries across the land. The Manhattan Institute’s Heather MacDonald denounced this type of thing as “Patriot Act fear mongering.” And she seems to have a point. But the debate over the limits to wiretapping and other forms of eavesdropping is an important one, and one that points to the Supreme Court. There is no doubt the matter of phone surveillance, and other surveillance, will be the meat and bones of new rulings.

Our right to privacy should not be unconditional. Because what any of us do tends to affect others. In some ways, privacy advocates agree with this, because they speak of the consequences to someone’s reputation as a result of an alleged breach of their privacy. But information nets need to be cast wide enough to contain threats before they happen. Did wiretapping go too far? Certainly yes. Let us hope the the Supreme Court, however, when they rule on any eventual appeal of this decision, will write a balanced decision that allows intelligence agencies to collect the information they need, but perhaps not all the information they want.

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