I, too, think it is a vital distinction. Sadly, I think the government is relying on ambiguous language in the Patriot Act (and subsequent reauthorization amendments) to bypass typical warrant restrictions.
If I were on the legal team interpreting the laws and their intent as it surrounds intelligence gathering, I'd see one widely open door--the Patriot act allowed for the searching of email and telephone communication records, and National Security Letters allow law enforcement to use these letters to investigate US citizens, even when they are not suspected of committing a crime, and absolve them of the requirement to obtain a warrant before searching "records".
Given that much of the debate is centering on conceptions of records, collecting, intercepting, databases, metadata, etc., I would guess there's a significant probability that the NSA et al. interpret the Patriot Act in such a way that the widespread collection of records is well within the dictates of the law and does not run afoul of the any legal requirements.
Where databases owned by private companies are concerned, I expect those fall under established warrant procedures that require law enforcement to stipulate the need to search and seize such records from the companies when a proper warrant is issued declaring the specific items to be seized and from where. So, I would guess that a legal challenge against government access to databases kept by major companies would be a rather Sisyphean battle, given warrant case law and precedents. Of course, with warrants, the suspected party is, I believe, able to be notified/aware of the warranted search & seizure. With NSLs, however, the Patriot Act lifted that, creating instead a much more attractive (to law enforcement & intelligence agencies, at least) vehicle that carries an automatic gag order.
The real issue is government access to those records en masse and without standing warrants specifically detailing the targets of collection. And here is where we start wading into creative interpretation of (possibly intentional) ambiguously worded legislation granting expansive powers to search records without a warrant, records which can now include telephone and email correspondence, as well as other records which have been commonplace in the last several decades of warrant issues.
If I were on the legal team interpreting the laws and their intent as it surrounds intelligence gathering, I'd see one widely open door--the Patriot act allowed for the searching of email and telephone communication records, and National Security Letters allow law enforcement to use these letters to investigate US citizens, even when they are not suspected of committing a crime, and absolve them of the requirement to obtain a warrant before searching "records".
Given that much of the debate is centering on conceptions of records, collecting, intercepting, databases, metadata, etc., I would guess there's a significant probability that the NSA et al. interpret the Patriot Act in such a way that the widespread collection of records is well within the dictates of the law and does not run afoul of the any legal requirements.
Where databases owned by private companies are concerned, I expect those fall under established warrant procedures that require law enforcement to stipulate the need to search and seize such records from the companies when a proper warrant is issued declaring the specific items to be seized and from where. So, I would guess that a legal challenge against government access to databases kept by major companies would be a rather Sisyphean battle, given warrant case law and precedents. Of course, with warrants, the suspected party is, I believe, able to be notified/aware of the warranted search & seizure. With NSLs, however, the Patriot Act lifted that, creating instead a much more attractive (to law enforcement & intelligence agencies, at least) vehicle that carries an automatic gag order.
The real issue is government access to those records en masse and without standing warrants specifically detailing the targets of collection. And here is where we start wading into creative interpretation of (possibly intentional) ambiguously worded legislation granting expansive powers to search records without a warrant, records which can now include telephone and email correspondence, as well as other records which have been commonplace in the last several decades of warrant issues.