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Comment by sandworm101 | Hacker News Reader

>> unauthorized official eavesdropping

It's authorized by law.

>> solely for the purpose of monitoring activities protected by the First Amendment

They don't look into such things randomly. They have some notion, say a report from someone, and examine the speech. A typical example might be some kid reporting "terrorist speech" in a public forum. So some officer somewhere takes a look, finds nothing illegal, and that's the end of things. That is an "investigation" of 1st-amendment speech because the officer is reading and investigating legal speech, but the purpose of the investigation was non-protected terror speech, or child porn, or threats, or any number of categories of illegal speech. It's not proper to turn around and call those investigations illlegal simply because they didn't find anything. That would only encourage officers to find things, to make mountains out of molehills, to justify their investigation.

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You might want to skim the decision (try searching for the word "authorize") in the case: http://caselaw.findlaw.com/us-supreme-court/407/297.html

This is semantics, but they're important. The investigation you mentioned isn't someone being investigated just for their protected speech, it's someone being investigated on suspicion of a specific crime. I do believe there are frameworks in which such investigations can be legal (but whether the NSLs themselves are sufficient or warrants are necessary is another matter) but I do not believe it follows that you can be investigated solely for [any] protected speech, which is what I interpreted your comment to mean. Could the speech create the suspicion in many contexts? Sure, I don't see why not. But it must actually do so, and it's the suspicion that provides the framework for the potentially legal search, not the speech.

The real law enforcement activity I think this prohibits would be pure fishing expeditions against those engaged in lawful first amendment activities. If the head of the FBI decides he doesn't like a given newspaper because of what they've said, and he can't even name a crime he suspects they've committed, I do not believe he has the legal authority to authorize an investigation into the newspaper to see if he can find something that they're guilty of. I believe it violates first and fourth amendment protections under Keith. What precisely the bar is to prove or justify any such suspicion (or even if there's any oversight) is a separate question.

>>I do not believe it follows that you can be investigated solely for [any] protected speech, which is what I interpreted your comment to mean.

Then you did miss my point. Often cops/feds have to investigate whether something is or isn't protected speech. When those investigations find nothing (normal) they then appear to have been an investigation into protected speech, but that wasn't clear at the time. We cannot make such investigations illegal simply because they come to nothing.

I didn't say the investigation is/should be illegal if they come to nothing. I said the are/should be illegal if they happen without suspicion that a specific crime has been committed.

The state should not be able to target someone for investigation solely because they disagree with their speech and "think they might be guilty of something." They need to state/establish what that something is. That's my read of Keith.

Material support of designated terrorist organizations is a crime under the law, and investigating someone for that is wholly different from investigating someone solely because they disagree with their protected first amendment activities. Consider again my newspaper example. With terrorism cases, they can point to the laws about supporting terrorism and say that's what the person is suspected of. They likewise need to have a law they can point to that they need to believe is broken before they target the newspaper for investigation because of their speech. How they have to do said pointing (warrants, NSLs, etc.) is a separate question, but in the absence of such suspicion I do believe the search is illegal.

> It's not proper to turn around and call those investigations improper simply because they didn't find anything.

And why not? "Some kid reporting" should not be enough to trigger even the most cursory look - especially when, as you conveniently leave out of your scenario, that cursory look involves issuing an NSL or otherwise obtaining non-public information by exerting the government's considerable power and influence. I see no reason why that should be allowed, nor that it is properly allowed under our legal framework. "Some kid reporting" is not probable cause.

I'm highly skeptical of your approach to this problem.

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