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Comment by peterkelly | Hacker News Reader

> What illegal activities did the NSA perform here?

See the first link in my comment.

> In case you didn't notice, the Snowden leaks revealed filters that removed US citizens' communications, showing that they were complying with US laws that prevent the US military (of which the NSA is part of) from spying on US citizens.

So what? As one of the 7.1 billion people who are not US citizens, I object to the notion that only the rights of Americans warrant protection. As surprising as this may sound, those of us born in other countries have the same rights too, and deserve the same protections. I regard suggestions to the contrary as insulting.

(for the record, I'm Australian, and I consider my own government's participation in these programs to be reprehensible)

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> As surprising as this may sound, those of us born in other countries have the same rights too, and deserve the same protections.

Citizens of other countries in fact don't have the same rights and protections against the NSA as citizens. It's why the NSA exists.

If the Constitution says something, it applies to everyone everywhere. The Constitution of the United States does not apply to people it applies to the government. It says nothing about "US citizens" or "foreign nationals". It restricts what the government can do.

So if the fourth amendment right to protection against unreasonable searches applies here (which there seems to be some debate about), it would apply to everyone. Not just to US citizens. The government does not have the right to perform searches of personal property without a warrant detailing exactly what will be searched. Again, this restriction applies to the government, it is not a protection afforded to citizens.

http://harvardlawreview.org/wp-content/uploads/pdfs/vol126_t...

My understanding has it that in practice "the people" means roughly "all citizens and residents of the US", not all people anywhere. You can disagree with the courts over what the words mean, but do so deliberately.

That is an excellent article! I actually learned quite a bit from that, thank you.

The main take-away that I had is that the courts generally uphold "the people" to mean "citizens", but there are some strong divisions on that and the case is far from settled. At the very least I agree with Harvard's opinion that this judgement cannot hold true to all instances of the the phrase "the people" without massively undoing hundreds of years of case law.

Based on that I will change my statement here to say "the Constitution restricts the government, but it's unclear in the courts whether it restricts the government's actions against non-citizens, although it probably should according to constitutional law scholars". So if you're a tourist in the US, watch what you say and do, because you may not have any right to freedom of speech or protection from unreasonable search and seizure.

Interestingly, the german preliminary constituion (we don't have a real one) that was written by the WWII allies also is about people but unambigously means all people on earth.

'Article 1 of the Basic Law (in German legal shorthand GG, for Grundgesetz), which establishes this principle that "human dignity is inviolable" and that human rights are directly applicable law, ...'

https://en.m.wikipedia.org/wiki/Basic_Law_for_the_Federal_Re...

To be honest, I've not given the article I linked a careful read.

My understanding is that it's entirely uncontroversial (as a question of "is" rather than "ought") that those who are neither US citizens nor US residents, while also not present in the US, are not afforded the protections in the Constitution given to "the people". It is also entirely uncontroversial that they do apply (in sometimes disputed form) to American citizens in the US (and probably also while abroad), and that they usually apply to long-term US legal residents present in the US. Some other points on those spectra are less certain (especially to me).

America, where corporations are people but foreigners aren't.

But foreigners with corporations are people! https://theintercept.com/2016/09/16/fec-republicans-kill-att...

Cute (and upvoted for humor).

The question is not whether foreigners are people, but whether they are a part of "the people", usually taken to mean "the people of the United States" - which is the context in which "the people" first appears.

Are foreign corporations people? - that is the question.

Yes, they can donate to political campaigns. :)

The Constitution is American law, and American law does not apply extraterritorially except in narrow cases. That's a bedrock principle of Constitutional law. The only thing that binds the US government abroad is the law of the jungle.

That's a bit like saying murder is legal because murderers exist.

http://www.un.org/en/universal-declaration-human-rights/

And yes, I know, human rights and international law are kind of lacking enforcement, so compared to stealing a lollipop or something, of course there is no legal problem with what the NSA is doing. But "it's gotta be okay or it wouldn't happen"? Nah.

By the same token downvotes without words go into the same bin. So far you showed you can click a button. That's literally it.

> those of us born in other countries have the same rights too

Not in US law we don't. To my knowledge there is no internationally agreed and enforceable privacy law. Now, as a UK citizen, I'm not exactly jumping with joy for either what the NSA or GCHQ have done but, from the point of view of US courts, spying on me is not something that bothers them hugely.

> To my knowledge there is no internationally agreed and enforceable privacy law.

Article 8?

https://www.liberty-human-rights.org.uk/human-rights/what-ar...

The full name is "Article 8 of the European Convention on Human Rights". Doesn't cover the US or Australia unfortunately.

And an article in U.S. constitution says it's enforceable because U.S. agreed to it.

You're correct in the legal sense, but there is also the moral/philosophical aspect to it. Here's what the US Declaration of Independence had to say on the matter:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

This is the moral/philosophical aspect. (I consider privacy to be one component of liberty, but expect it's not a universally-held view).

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed"

This is the legal aspect.

So it depends on which you look at. In my comment above I was referring to the former. And specifically, my argument was based on that laid out at the very beginning of one of the country's most important founding documents, which I hope would carry some weight with those US citizens who believe in the moral principles on which their country is purportedly based.

The Declaration of Independence has no legal force.

Also, "all men" is referring specifically to white males, since at the time women were not treated equally and, you know, they had slavery back then.

It's important to keep in mind the spirit of these historical documents and how that spirit can be applied today, but it's also important to remember that these are imperfect documents from an imperfect time and that they can't be treated as gospel. Even the founding fathers believed that, which is why they built in mechanisms for updating the Constitution.

> Also, "all men" is referring specifically to white males, since at the time women were not treated equally and, you know, they had slavery back then.

Different people involved with the writing of that document had different ideas, and there were many drafts, and it was a creation of compromise. That it was left as open as it was, when prior revisions had specific clauses critical of the slave trade removed[1], is a testament to how contentious it was. That it was still used as later evidence for the abolition of slavery is to the credit of those that fought for a more inclusive wording. That it didn't include specific reference to women... well yeah, that sucks, but at least you can argue later that "man" was meant in the sense of (or should be interpreted as) "humanity".

1: https://en.wikipedia.org/wiki/All_men_are_created_equal#Slav...

> As one of the 7.1 billion people who are not US citizens, I object to the notion that only the rights of Americans warrant protection.

People who are neither within the US, nor US citizens, have generally less protection from rights guaranteed by the US Constitution, even when the actor involved is the US government. You can object to that all you want, but its unlikely to change. Fundamentally, neither our Constitution nor our government is about you.

> As surprising as this may sound, those of us born in other countries have the same rights too

The big advance of popular government was that people have enforceable personal rights against their government, at least by citizenship and sometimes even by geography without citizenship. But it hasn't reversed the fundamental issue of sovereignty that there is very little in the way of substantially enforceable personal rights against a foreign sovereign, except those which your own sovereign guarantees and is willing to go to war (and capable of winning) to enforce.

And whether this is the way thing should be or not, it is fundamentally incorrectable -- its the essential nature of sovereignty. You could make it irrelevant by establishing a single world sovereignty guaranteeing the rights you believe should exist for all against all governments, but that doesn't seem likely in the near future.

NSA cannot target Americans or American residents for spying. But they are allowed to spy and are in fact tasked with spying on non-Americans.

It is what a U.S. spy agency does. And the spy agency of other countries, western and non-western, are supposed to be doing, e.g. spying on people outside of their countries. (Spying on your own people is akin to living in a totalitarian state.)

What Snowden did was reveal to the world how extensive and deep the NSA's reach was. His initial objection was NSA's ability to spy on Americans, but when he blew the whistle, the entire world found out they too were being spied on.

Misfire! Should he be punished or rewarded? It is a double edged sword.

>So what? As one of the 7.1 billion people who are not US citizens, I object to the notion that only the rights of Americans warrant protection.

If you're that keen to be covered by the United States Constitution, you can always petition for statehood; there's a procedure right there in Article IV, Section 3, Clause 1. Go to it, and good luck!

A careful reading of the U.S. Constitution reveals that the majority of the clauses that establish rights actually forbid the U.S. federal government from performing certain actions, period, rather than forbid it from performing those actions or not, conditional on citizenship.

The 4th Amendment protections against unreasonable searches and seizures apply to everyone, everywhere. The U.S. government must always get a warrant, regardless of borders.

U.S. v. Verdugo-Urquidez (1990) [0] established precedent stating otherwise, but I agree with Brennan's dissent and Stevens' concurrence. The majority opinion basically said it would be too difficult for the U.S. to project its power overseas if it still had to obey its own laws there. I don't find political expedience to be an acceptable argument for voiding anyone's rights.

Of course, outside the territorial jurisdiction of the U.S., those protections are unenforceable in practice regardless, because the target likely cannot access any court that might be able to grant relief. It might be interesting for a foreign national to ask to enter the U.S. for the purpose of petitioning for redress of grievances against the U.S. in a U.S. court.

A foreign state need not petition for statehood. It would be sufficient to establish by treaty a court wherein a foreign person may sue a U.S. government and its agents for violations of U.S. law. That would be a double-edged sword, of course. It might also allow a U.S. entity to sue foreign persons for violations of U.S. laws in that foreign state's jurisdiction. (I'm thinking specifically about intellectual property suits.)

[0] https://en.wikipedia.org/wiki/United_States_v._Verdugo-Urqui...

> The 4th Amendment protections against unreasonable searches and seizures apply to everyone, everywhere.

Even granting that, what is "reasonable" depends on a lot of other factors (both legal -- such as specific grants of power to Congress, and laws passed under such grants -- and factual), and the nature of world of multiple sovereign states and the grant of power to Congress to regulate interactions with them, and laws passed by Congress make surveillance of purely foreign material "reasonable" under circumstances where it would not be domestically.

> It would be sufficient to establish by treaty a court wherein a foreign person may sue a U.S. government and its agents for violations of U.S. law. I don't see how such a treaty can be reconciled with Article III; the treaty power does not extend to contravention of the Constitution.

> It might also allow a U.S. entity to sue foreign persons for violations of U.S. laws in that foreign state's jurisdiction.

US entities can already sue foreign persons for violations of US laws in foreign states territory in US courts to the extent that the US law at issue has extra-territorial application.

Being able to actually enforce such a judgment would either require a treaty or that the defendant or defendant's property enter U.S. territory.

I don't see how Article III would prevent the establishment of a U.S. District Court outside the territory of the U.S. There is no distinction there that makes the U.S. District Court for the Western District of Washington any more or less legal than a theoretical U.S. District Court for Ireland and Great Britain, or U.S. District Court for France.

28 U.S. Code § 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Article III, Section 2, allows an inferior court to hear a civil case brought by a foreign person against the U.S., with the Supreme Court having appellate jurisdiction.

A treaty cannot establish such a court; it can only require that Congress either establish such a court, or be in breach of the treaty.

> I don't see how Article III would prevent the establishment of a U.S. District Court outside the territory of the U.S.

It wouldn't, it would prevent something other than an Article III court from being established by treaty (and anything established by treaty would not be an Article III court.) Congress can establish, and has established Article III courts outside of the US (notably, the U.S. Court for China.) Not, of course, that such a court would be necessary to allow foreigners to sue US officials for violations of Constitutional rights, since offenses cognizable under US law that occur outside of any established judicial district can already be filed in district courts; see, 28 USC Sec. 1391(b)(1) and (b)(3).

(Aside from reducing inconvenience in the US government policing US citizens when granted an extraterritorial privilege to do so, as was the case with the sui generis US Court for China, the main benefit of a foreign-located US Court would be to provide a US -- from a legal perspective -- venue for parties to sue non-US persons local to the area where the court was located where forum non conveniens is less likely to be invoked as a reason for dismissal.)

> A treaty cannot establish such a court

But, upthread, you suggested that a court for the purpose you had in mind would be established by treaty, which I took issue with precisely because a treaty cannot establish such a court.

That's splitting hairs, in my opinion. There is a distinction possible between "established by treaty" and "established by an Act of Congress pursuant to a treaty", but I didn't think it was necessary to make it upthread.

My main point was that foreign states need not become one of the United States to be protected by certain rights clauses in the U.S. Constitution. The key question is how to make the agents of the U.S. obey U.S. laws when outside of U.S. territorial jurisdiction, and there are many possible answers that do not involve extending U.S. territorial jurisdiction beyond its current bounds.

If there are no district courts outside U.S. territory, suing the U.S. as a foreign person may become prohibitively expensive in relation to the magnitude of the offense. The suit could further be impeded by using immigration laws against the plaintiff, possibly impeding discovery or appearances. Retaining a local attorney would be de facto required rather than optional, and hourly rates might combine with currency exchange rates and national economies to ensure that the price tag is simply too high.

> My main point was that foreign states need not become one of the United States to be protected by certain rights clauses in the U.S. Constitution.

But the courts argument is irrelevant to that. To the extent that the US Constitutional rights (or other rights under US law) extend to foreign nationals in foreign territory, the existence of a US court on their soil is irrelevant to such protection, it has no effect either way. So the whole court thing was a non sequitur.

> If there are no district courts outside U.S. territory, suing the U.S. as a foreign person may become prohibitively expensive in relation to the magnitude of the offense.

That might be a practical concern, but it is irrelevant to the actual legal concern, which is that it is well-established law that many protections of the US Constitution do not, in fact, apply to foreign persons outside of the US in the same way as they apply either to US citizens or to persons within the US (some don't apply at all, and even for those that do, the differences in factual circumstance between US and foreign jurisdiction and the fact that the US government has express granted powers in governing relations with foreign nations changes how they apply), and that, in fact, to be protected by those rights in the same way as would be the case for those within the US, the states they were in would, contrary to your argument, need to become part of the United States.

>The majority opinion basically said it would be too difficult for the U.S. to project its power overseas if it still had to obey its own laws there. I don't find political expedience to be an acceptable argument for voiding anyone's rights.

Are any other nations obligated to follow this principle as well, or just the United States?

>A foreign state need not petition for statehood. It would be sufficient to establish by treaty a court wherein a foreign person may sue a U.S. government and its agents for violations of U.S. law.

Why on Earth would we sign such a treaty?

Philosophy and politics do not always intersect in convenient places. The only law that all nations must currently obey is "might makes right". In taking the position that the U.S. may break its own laws whenever following them would be too inconvenient, the Supreme Court implicitly says that the rule of law is more of a guideline, really.

They apparently have not plumbed the deeper meanings of "wherever you go, there you are".

Why, indeed? The foreign state might desire it so that U.S. agents could not act with such impunity against its subjects, but what would be in it for the U.S.? Like any other treaty, that would be a point for negotiation.

Reprehensible isn't the same as illegal. The 4th amendment does not apply to foreign citizens on foreign soil. NSA spying on Australians may be undesirable for various reasons, but it is legal.

So are countries sovereign or not? Are you saying that the US should be subject to the constitutions and laws of other nations, and vice versa?

> As one of the 7.1 billion people who are not US citizens, I object to the notion that only the rights of Americans warrant protection.

As I see it, that is exactly as it should be. Just as you are not subject to American law, except when you are in America or the provisions of a treaty, you should also not be protected by it, except when you are in America, etc. etc.

> As surprising as this may sound, those of us born in other countries have the same rights too, and deserve the same protections.

Those protections that you may have derive from your own government and your own set of laws and the treaties made within that framework. You want to be protected by the laws of the United States of America, then be a citizen, with all the duties and responsibilities thereof.

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