I thank Theodore because he clarified my position perfectly. But, I would add that if the government were more efficient with the information it ALREADY has (and that information was available to various branches of law enforcement), much of which is not controversial, then perhaps there would be less of a need for new types of information to be entered.

Further, if the government did maintain adequate records, then some abuses could be avoided. Consider the TALON program as an example. TALON, a very large database containing records of US citizens who attended protests, among others, was maintained by the Air Force after 9/11. Among the many abuses of the database was the fact that the US Army also accessed and contributed to it. This is a major violation because the US Army is generally not allowed to conduct domestic surveillance or directly deal with US citizens in criminal matters. Yet it cannot be the case that we would ever accept an explanation from the army stating "oops, sorry, we didn't know you were a citizen." The flying blacklists that innocent Americans with the wrong names can't ever seem to get off of is another example. Governmental inefficiency should not be an ostrich-like ignorance defense to the violation of civil liberties. A government that simultaneously can't keep track of the basics, but that also engages in in-depth spying is the most dangerous of combinations.

-- KateVershov - 26 Feb 2009

I'd also argue that the all-or-nothing mantra is guided by prosecutors/law enforcement officers who are much like doctors: a cardiologist knows the heart and so assumes all of your problems can be fixed by fixing the heart; so, too, a prosecutor looks at malware and worms and assumes all of your problems can be fixed by law. As Lessig has beaten to death at this point: conduct on the Internet is informed by much more than law.

-- KateVershov - 26 Feb 2009