The Economist: Democracy in America: "American Politics"

Government surveillance. Views from the other side. One of the problems in tackling a subject as immense as data, as my San Francisco based colleague and I did this week, in just two articles is that inevitably one is left with vast amounts of "over-matter". Readers can probably discern that both I and this paper have fairly strong views about the subject, but that does not mean those are the only views out there. At the moment, in America law enforcement agents who want access to a subscriber's mobile phone or email information need to obtain a 27039(d) order. By the way, I'm speaking in this post about more or less ordinary police/investigative work, not national security or FISA related investigations: That is, to steal an esteemed colleague's phrase, an entirely different kettle of piranhas. That order must contain "specific and articulable facts showing that there are reasonable to believe that the records or other information sought are relevant and material to an ongoing criminal investigation." The problem, say privacy advocates, is that in many jurisdictions, once a police officer shows those facts, the judge is obligated to give the order. There is far less scope for judicial review here than in the traditional warranting process, where a judge can grant or not grant a warrant. There is no requirement, as with a wiretap, to show probable cause, or to show that "normal investigative procedures have been tried and have failed", although I would note that in 1969, there were 302 state and federal wiretaps approved in America. Last year there were 2,732, which suggests either an astronomical increase in the failure rate of normal investigative procedures, or that the necessity requirement is more honored in the breach than in the observance, and even that order is not always honored in the breach than in the observance.