Supreme Court declines to hear Wikimedia's challenge to NSA mass surveillance
diff.wikimedia.org
diff.wikimedia.org
Research: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769645
I'd prefer term limits too, but I don't think I can high-horse it.
Given the prevailing sentiment on HN, we should all be glad there's never been a national referendum on NSA surveillance. From local politics experience: people are generally pretty sanguine about surveillance!
Fwiw, I used to think this until someone pointed me to a study about how short term limits increase reliance on outside sources like lobbyists. I don't remember the study so I can't link it, but it seems intuitively obvious. Can't become a subject matter expert in 4 years, and for sufficiently complicated jobs you're barely competent by then.
It’s certainly possible to design term limits that avoid various pitfalls.
This is a circular argument. The concern about infinite term career politicians is non-accountability and entrenched institutional corruption. Saying "well the institution has its own inertia and will still function" doesn't solve the original problem.
> After all, presidents get 4-8 years. Does this mean they’re so unable to do the job they outsource
I mean... yes? Presidents have a huge sprawling infrastructure that supports them. If there's anything the back-to-back presidencies of Trump and biden has taught us, it's that the organization surrounding the office of President largely run things anyway (Trump because he was dangerously unhinged and biden because he's grossly mentally deficient).
In fact, if it wasn't for the wildly unconstitutional expansion of power in executive orders in the past two decades, Presidents would have even less impact than they do already.
> It’s certainly possible to design term limits that avoid various pitfalls.
I think term limits are an attempt to treat a symptoms, rather than a problem. Career politicians are dangerous because of legal outside influence. I think campaign finance is the right place to strike. Money, via ads and other means, shouldn't be able to influence elections.
I don't follow. The fact that you have a variety of politicians, some at the beginning and some at the end of their 12 year term, means you have a substantial non-0 amount of politicians that have sufficient experience to not be reliant on lobbyists (the main argument from that paper). The existence of term limits means that career politicians have to make very different career choices and legislative choices with respect to the law making they are trying to get done in that fixed window. It's not sufficient by itself without other reforms [1] but it's probably a necessary condition in terms of maintaining the health of our democracy.
> I mean... yes? Presidents have a huge sprawling infrastructure that supports them. If there's anything the back-to-back presidencies of Trump and biden has taught us, it's that the organization surrounding the office of President largely run things anyway (Trump because he was dangerously unhinged and biden because he's grossly mentally deficient).
And Bush 1 & 2, Obama & Clinton? Do you think a Representative's office doesn't run a lot of the day to day for them? Do you think a CEO doesn't have a lot of the same infrastructure? What exactly would you expect a President or any leader to do on their own? When has that ever been true? Not really sure what point you're trying to make.
> I think term limits are an attempt to treat a symptoms, rather than a problem. Career politicians are dangerous because of legal outside influence. I think campaign finance is the right place to strike. Money, via ads and other means, shouldn't be able to influence elections.
Term limits don't require a consistiutional amendment whereas your preferred place to strike requires either meaningfully changing the power balance of SCOTUS (which is fairly difficult) or a constitutional amendment to get around Citizen's united.
[1] Limiting when you can declare for office to within ~3-6 months before an election and having a black out period before electioneering are common steps many other sane democracies choose. It's not foolproof because you can have unofficial electioneering but it's a start. Limiting the representation so that you can only vote on certain things (police chiefs, AGs, school boards, judges, direct-to-citizen ballots like California & NY etc) are also things saner democracies avoid politicizing (+ an informed citizenry only has so much bandwidth - that's why we outsource representation). And also limiting election season so that it happens once every four years (i.e. you get city + state + federal representative every 4 years instead of elections every single year which results in very low turnout on the vast majority of elections and is extremely undemocratic). I'm aware a lot of these may be difficult to pass in the US and there can be real reasons that these exact proposals aren't the ones we'd want (and maybe constitutional concerns). But if we're already talking about changing the US constitution, these are probably easier reforms that would have more appeal. The fact that House members start campaigning for the next election at the conclusion of their current one and Senators start ~2 years after election means the vast majority of elected representatives are not actually focusing their time on what they've been elected to do.
Maybe their all just slimy eels that can't be trusted.
https://www.senate.gov/senators/longest_serving_senators.htm
And then they'll pull WWE and designate on or two manchinns or sinemas to oppose it so they can say that they tried but failed. And they will blame voters for not voting harder.
Or do nothing and hope people will forget about it.
while "conspiracy" isn't precisely correct, the system has been architected, bit by bit, to get between the zeitgeist of public opinion and policy. I've had to explain this to so many folks that as of this posting, I'm saving the list in a note for quicker reference.
- gerrymandering: even if your opinion is part of the majority opinion, that may not matter because you might live in a place that's strategically districted to silence you[1]
- first-past-the-post [2]: this system of voting creates an environment hostile to all but two courses of action. Consequently, issues that are highly nuanced or divided along more than one line are conveniently wrapped up in...
- the two party system: if my choices are eat the turd sandwich or drink the giant bag of douche, you haven't given me a choice. All the more shame that my choices are defined by:
- the DNC / the RNC: neither of which is held accountable to the kind of transparency that "actual voting" is (never mind that, because of the issues previously mentioned, they do run the "actual voting"). And by bifurcating the voting bloc on either side of a strategic line, they make life a lot easier for..
- lobbyists: I can't stress enough how bad it is that these motherfuckers write things that make it into actual law [3]. This is the man behind the curtain, the curtain being..
- representatives: see previous as to why this nomenclature is a joke. Not that it would make a ton of difference if it weren't, because even if they did represent your interests (pro tip: they don't), they'd only rarely be able to act on it, because of:
- the Senate: do you live in Wyoming? Vermont? no? well those folks get to decide to kill bills from the rest of us. Even if they decide not to, and everything else works fine, guess what -
- the supreme court: may be staffed by a majority that was voted in generations ago and they're a) not leaving and b) desperately out of touch, so all the work you may it may not have accomplished by overcoming ALL THE STUFF ABOVE is moot!
.. and I've left out tons from this brief overview. The money / campaign finance cycle, the relationship of all this to the media, voter suppression, and so on and so on and so on. Another way to look at this, rather than a systemic analysis, is to look at the outcome, which has been done [4]. Generally, what is seen is that the more money you have, the more congruent your opinion and enacted policy will be. Notably, it's what doesn't get passed that the wealthy seem to have the most control over. This would make sense, because things are obviously working well for them now so why rock the boat.
1 https://www.brennancenter.org/our-work/research-reports/gerr...
2 https://youtu.be/s7tWHJfhiyo
3 https://publicintegrity.org/politics/state-politics/copy-pas...
4 https://faculty.wcas.northwestern.edu/~jnd260/cab/CAB2012%20...
The people in Wyoming and Vermont aren't too happy about Chicagoans deciding things for them, either.
The point about the Senate is that it's asymmetric representation. The Senate kills bills, and it can be done with a much smaller portion of the voting bloc than is representative.
This presupposes both that the system is representative of the will of the people and that people act rationally in their own self-interest, both of which are provably false. For example, 88% of Americans think Marijuana should be legal federally, both medical and recreational marijuana. Overwhelming majorities have held this view for years. Did they vote in representatives that promised to enact them? And this is on an issue where 88% of Americans agree. Rarely will you get such widespread agreement by Americans on any issue.
This isn't to say that people actually want term limits, that's an entirely separate debate, only that the fact that term limits haven't been implemented is no barometer for that.
https://www.pewresearch.org/fact-tank/2022/11/22/americans-o...
"think about the children".
> Upstream surveillance is conducted under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits the government to intercept Americans’ international communications without a warrant, so long as it is targeting individuals located outside the U.S. for foreign intelligence purposes. Section 702 will expire later this year unless it is reauthorized by Congress.
> In the course of this surveillance, both U.S. residents and individuals located outside the U.S. are impacted.
So is this "they should not target foreign individuals outside the US that are conversing with US individuals[0]", or is this "they should not surveil foreign individuals at all"?
0: (regardless of whether the US individual is outside or inside the US)
Spying on non-US citizens is legal, by spying on citizens should require a warrant.
Citizenship being a factor on if the government can spy on you or not is one of them. The constitution should apply to government actions all government actions, not just those take inside the confines of the geographic regions known as the US, and not just those taken against US Citizens. The reading of "the people" to mean it only applies to Citizens is very novel IMO...
Sadly for the last ~100 years we have taken the easier path of just ignoring it when the constitution gets in the way
the concept of international telecommunication is novel from the perspective of the constitution, but anyway...
The 4th amendment starts:
>The right of the people
The preamble starts:
>We the People of the United States
The 17th amendment says:
>The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote
It's pretty clear "the people" refers to citizens.
But not of International Communication.
>>It's pretty clear "the people" refers to citizens.
If that is in fact the case, then why are all these rights the extended to all persons inside the Geographic US, Non-citizens are in fact all the time granted many / all the rights guaranteed by the US Constitution simply because of their presence inside the border of the US.
Seems to be a conflict there, if by your account rights are only protected from government infringement if you are a US Citizen then we have loads of case law that runs afoul of that position
As a parallel point, there were no immigration laws at all until a hundred years after the constitution was ratified. Anyone could come to the US.
You're probably referring to the Immigration Act of 1882, which was indeed one of earlier laws giving federal purview to the ports, and with some enforcement provisions, but your statement as written is incomplete.
> It's pretty clear "the people" refers to citizens.
No, this doesn't support that assertion. The Constitution doesn't forbid non-citizens from voting; fairly recent legislation does, and even there, only Federally. https://en.wikipedia.org/wiki/Non-citizen_suffrage_in_the_Un...
"Since 1997, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 has prohibited non-citizens from voting in federal elections, with the threat of fines, imprisonment, inadmissibility and deportation... At one point or another before 1926 40 states had non-citizens voting in elections."
The Constitution very specifically uses "citizen" in some spots, and "person" in others.
no where in my comment did I state or imply anyone US Citizen or not has any duties to the US government. The US Constution does not impose any duties on any person at all, citizen or not
The entire purpose and scope of the US Constitution is the establishment of the US Federal government as a Republic composed of US States. There in limiting the power of this government to a specific list of powers and reserving all other power for the States and the people.
As a US Citizen, the US Constitution is not aimed at me, it is aimed at the federal government, many people misunderstand this relationship.
This is clearer when you read the original proposed language of (what was then, I think?) the "sixth amendment":
The rights of the people to be secure in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.
An obvious counterexample to the notion that all searches are constitutionally required to be authorized by specific warrants: searches incident to arrest, which have never been so encumbered. Another example: customs searches. Sometimes you can just roll the tape back how things were done at the time of the founders and see that the supposed prohibitions in the Constitution couldn't really be the intent.
Isn't the documentation of "a judge agrees with it," just a warrant signed by a judge?
The exceptions that I can think of are:
Probable cause of a crime and this only applies to person/vehicle in public.
It's publicly visible
Nope.
You want to go through the US border. Everyone gets searched for customs/contraband. These are reasonable searches, no warrant is required.
You want to get on an airplane. Everyone gets TSA screening, including a search. These are reasonable searches, no warrant is required.
You want to get a security clearance. You agree to the requirement of random searches of your house for evidence that you shouldn't have such a trusted position. Since you've agreed in advance, no warrant is required.
You can go complain to a judge about these, and people have. Judges have consistently ruled that since the search is reasonable, the 4th amendment is no bar to those searches.
But no, the criterion really is reasonableness, and not consent. If you're arrested, your person WILL be searched. They WILL NOT need a warrant. And nobody will care whether or not you consented to this. Because it is reasonable to search a prisoner for weapons, lockpicks, and other ways that the prisoner might try to contest imprisonment.
"Before the terrorist attacks on September 11, 2001, the NSA went to the FISA court for warrants to eavesdrop on American citizens within the United States. Since the FISA court began meeting in 1979, it has approved almost 20,000 government requests for these electronic eavesdropping warrants and has rejected about five. The NSA does not need a warrant to eavesdrop on communications outside the country."
https://www.crf-usa.org/bill-of-rights-in-action/bria-22-3-c....
It doesn't really. This is one of those policy areas that the "tech subculture" tends to fixate on, but that doesn't in any way mean it's actually "the largest single issue of our time." It's pretty helpful to be mindful of your own biases and those of your subculture when making claims like that. What issues does the "tech subculture" not really pay attention to that could actually be far more significant?
The existence of warrantless wiretapping brings into question whether the courts even have the right to overrule government actions (a power SCOTUS gave itself back in the early days of the republic). They also circumvent key parts of 100 year old criminal law like the exclusionary rule. And that's just the legalise parts. Not to mention freedom, privacy, democracy etc.
If only FISA required warrants, ohh wait!
Or if FISA actually granted warrants for mass surveillance. Which they legally can't.
And when the government did it anyway and lied to the court about it and it was reveiled at least one judge resigned in protest, but government kept doing it anyway.
I mean seriously, FISA is a shitty system and even that wasn't shitty enough for what the US wants to do to its own people.
If you want FISA, then you actually agree that we need to shut down 99% of the NSA and bring the executive branch to heel...
Here’s one. They heard a case Moore v Harper that tests independent state legislature theory. Should state legislatures be allowed complete control over electors? Depending on how they rule, you’ll either never hear about it again or it will own the news cycle for a month.
If it wasn't significant, it wouldn't be practiced by security agencies that long withdrew themselves from control.
This is a complete new form of information gathering. That people aren't really good to classify abstract dangers is certainly a problem.
People that know the technical aspects are able to classify the problem and inform others that are less tech savy. The normal user doesn't know how you can correlate data and extrapolate information. Nevertheless it is very much possible to an extend never before seen in any society.
What do you believe to be more significant? Ressource consumption, politics, ecologic problems? All these issues are very intertwined with any other political topic.
But I don't think the court is about to make climate change illegal (sadly) so...
The vast majority of people just virtue signal about privacy. They don't actually care (and when I say care, I mean feel strongly enough about it to change their actions to specifically avoid surveillance).
Supreme Court is def stacked, but in this case, its likely they don't wanna waste their time with something that will 100% have no actionable outcome.
I think when given a set of options they understand, many people will choose more privacy from companies and the government because that’s what they want. I think that’s especially true when they understand the actual scope and scale of the surveillance.
Many people switched to Signal recently when they heard about it for the first time. The only ones I know who stopped using it did so because of UX flaws. Why is there no mainstream browser with an "Enable Tor" button? Probably because it's the browser makers that are virtue signaling, not the public. The browser makers all rely on tracking you to make their business model sustainable. Give the people a true, reasonable choice for privacy and they will likely take it.
Because using anything other than the Tor Browser Bundle is a good way to differentiate your usage from that of the vast majority of Tor users and render yourself more easily identifiable than otherwise.
For many people, this could simply be the beginning of the funnel, a gentle introduction to Tor, which could be accompanied by a message instructing them how to download and use the Tor Browser Bundle. I doubt that will happen any time soon because of the existing business models, but it would be a major step if it did.
> Why is there no mainstream browser with an "Enable Tor" button?
That's sort of irrelevant though, if you don't mind me saying: the entire purpose of scotus is to take cases that the mainstream don't care about but which have significant implications either for individuals, small groups or society as a whole.
That's why it was the supreme court that created gay and interracial marriage. Neither minority could get fair treatment via the ballot box.
If the majority cared, in theory at least, they need only vote to get what they want. The Senate, the House and POTUS all serve them (to greater or lesser or degrees).
SCOTUS is for the little guy. That's why it's members are NOT elected or otherwise subject to public opinion.
It is _their job_ to consider these issues. They have their entire lives dedicated to this task.
(I think of money/lobbying/laws/regulatory capture/copyright/etc)
That said it's amazing that our government was basically architected in the 1700's.
I wonder what the next iteration of government will look like?
I actually think SCOTUS is one of the better or at least more reformable parts. We've had terrible courts (deciding ex slaves cannot be citizens or sue in court for instance). And good ones.
Right now, were in a reactionary phase after the 60s and 70s produced a great cultural advance. Once that dies out we might see more progress. Until then we wait and hope...
Seems like these justices simply want to wave this away as too complicated, a valuable secret. Well, if it weren’t secret it would be illegal.
How can we claim to respect the rule of law when "state secrets" are a get-out-of-jail-free card for flagrantly violating the law?
Actual legal documents: https://knightcolumbia.org/cases/wikimedia-v-nsa
And by the way, I find the second complaint quite weak. Can I sue the NSA because I can't properly sleep at night due to my anxiety of being under constant surveillance? Of course I can sue, it's a free country. But should I expect the Supreme Court to hear my case? Most likely not.
Standing does not _fully_ prevent this. Sometimes a person may want to plead guilty to conduct that is not a crime, or intentionally lose and serve a few years in prison if the state has agreed to not prosecute them on charges that would land them several decades.
However, it's a somewhat useful ~"you have to have some skin in the game if you're going to participate in making the rules."
Ultimately the NSA won on the state secrets doctrine. However, as it relates to standing the gist is that Wikimedia only proved that the NSA had the capacity to copy their communications, but the NSA showed they had the technical capacity to perform the operations without copying Wikimedia's communications. I.e. Even though the NSA tapped the backbones, they could filter out what they did and didn't review / copy independently from Wikimedia's communications...
Is that true, IDK. I haven't reviewed the evidence.
Quote:
Both parties have focused their discussion of Wikimedia's standing on the three prongs necessary to establish the Wikimedia Allegation,[32] which were enumerated in the Fourth Circuit's remand order in this case. See Wikimedia Found., 857 F.3d at 210-11. The three prongs are: (A) Wikimedia's communications almost certainly traverse every international Internet backbone 601*601 link connecting the United States with the rest of the world; (B) the NSA conducts Upstream surveillance at one or more points along the Internet backbone; and (C) the NSA, for technical reasons, must be copying and reviewing all the text-based communications that travel across a given Internet backbone link upon which it conducts Upstream surveillance. Together, these three prongs would establish that the NSA has copied and collected some of Wikimedia's communications in the course of the NSA's Upstream surveillance program, thereby providing Wikimedia standing to sue here.
The sufficiency of the evidence with respect to each of these prongs is discussed in detail below. The summary judgment record contains specific facts which show no genuine dispute as to the veracity of the first two prongs of the Wikimedia Allegation. With respect to the third prong, however, the summary judgment factual record contains specific facts that establish, without a genuine dispute of material fact, that the NSA, in the course of Upstream surveillance, does not need to be copying any of Wikimedia's communications as a technological necessity. Thus, the summary judgment record does not contain the facts necessary for Wikimedia to establish standing at summary judgment via the Wikimedia Allegation.
The list goes on and on, and these scenarios are no longer science fiction - once you have the data, it's easy to create such automations. Wikipedia even provides helpful classification with its category system.
It's also important to point out what's actually being challenged. Either section 702 needs to be made a lot more complicated, or they just continue business as usual. Not surprising which path they want to take.
> This government surveillance has had a measurable chilling effect on Wikipedia users, with research documenting a drop in traffic to Wikipedia articles on sensitive topics, following public revelations about the NSA’s mass surveillance in 2013.
My recollection from reading about this way back in 2016 was that it was about communication between WMF employees, not user data. And to have standing, they should be demonstrating harm, not just saying "the technical ability to spy on our communications exists".