What happens when the Secret Service uses a NSL on you
noisebridge.net
noisebridge.net
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
So the real question (whether NSLs should be allowed) is quite a bit more nuanced.
I don't think they should, but not really on the basis of free speech.
So while you can quibble over yelling "fire" in a theater, silencing speech against prosecution from the government is diametrically opposed to the intent of the first amendment.
FYI, even this argument has been rejected for decades. Now, your speech must be likely to cause "imminent lawless action". [1]
Yelling fire in a crowded theater is not about causing lawless action; the people fleeing in panic are behaving lawfully. The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so.
Brandenburg deals with inflammatory speech (usually hate speech but also includes seditious speech), which must rise to the level of incitement to be criminal, specifically meaning that you must incite others to actually hurt a third party or to actually take seditious actions against the government. Otherwise, the inflammatory speech is justy the expression of personal opinion, which is directly protected by the 1st Amendment.
Neither Schenck nor Brandenburg (which is considered to relate to Schenck) relate to actually yelling the word 'fire' more than indirectly.
I'm mildly interested in the actual hypothetical; out of curiosity can you cite caselaw that backs your claim (The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so)?
1. http://www.popehat.com/2012/09/19/three-generations-of-a-hac...
Then, I think someone forgot to tell the government that.
The entire framework of the US government's core documents and the non-legal documents written by the founders around the same time completely support the notion that these documents have purposes, chief among which is the defense of citizens from the government itself.
Interstate commerce has been applied to non-commercial private activities on personal property in numerous ways, for 70+ years.
Please see Raich v. Gonzales and Wickard v. Filburn.
Raich and Wickard are not unreasonable extensions of federal power--they simply reflect the fact that technology has changed the nature of commerce since the Constitution was drafted.
The problem with Raich and Wickard (et al.) is not that they extend federal power, but rather that they invent it of whole cloth.
Raich and Wickard do not invent federal power; they simply extend it to the modern era (or rather, into their future and our present day, since technology took a few decades to catch up).
Let me ask you this: What activity isn't covered in your interpretation of the commerce clause?
Today, technology across all sectors has improved to the point where you can now order heirloom todays and get same day delivery (in some markets). When these SCOTUS cases were decided, that same process would have taken months.
Moreover, trade that does not cross state lines can be interstate. For example--you make good Widget that you sell nationwide. I decide in State X that I want to make and sell Widget as well. (Patent, etc. are not a concern in this hypothetical). My sale in State X of widget necessarily affects your interstate sale of the same widget: every widget that I sell in State X is one less that you might sell, which means one more widget is available in other states, altering the normal supply/demand considerations. (I'm not just pulling this out of my ass, this is the actual logic set forth in the SCOTUS cases.)
You have to trade something in return for those services. Almost always that something is money.
If a lawyer represents me for nothing in return - then no trade took place, it would be a gift.
http://en.wikipedia.org/wiki/Argumentum_ad_populum
"Virtually everyone" is not qualified to make a constitution, and if by "the courts" you mean the SCOTUS, then the courts have a history of doing a lot of stupid things based on personal bias.
It's one thing for lawmakers to get tripped up on finer points of Constitutional law with which the Supreme Court disagrees with. It's quite another to just play this "catch me if you can" game trying to push the limits of what is possible while ignoring the Bill of Rights.
A lot more about the fourth ammendment -- unreasonable searches and seizures, the right to be "secure in your papers and effects" -- the one that says they need a warrant and ordinarily need to let you know the warrant was served). Don't it?
The constitution is not a suicide pact. That is, the system cannot interpret the various provisions of the constitution in such a way that would destroy the country. The Declaration of Independence is a statement of philosophy. The constitution is a rather vague and self-contradictory description of structure. Different thing entirely.
Having said that, what has happened is that 240 years has given all the players in government a chance to find edge cases where they can have their way at the expense of others.
What we're seeing now is a state of perpetual war. This was never envisioned when the country was founded. So we're way off the script.
Isn't it? It seems like it was intended to be a set of fully strict provisions, and if they didn't work, everyone had to agree on changing it.
Such as when it falls into a perpetual state of war. Like they complained about England doing. I think it was well envisioned and it's well on script. However, the Founders believed the separation of powers between branches would create adequate checks and balances to prevent it from happening. I think they failed to envision the case where said branches would collude and ignore the rules to protect each other's power quid pro quo, and most people would not notice and not be bothered.
> 1. A government may not injure a human being or, through inaction, allow a human being to come to harm. > 2. A government must obey the laws given to it by human beings (through their representatives), except where such laws would conflict with the First Law. > 3. A government must protect its own existence as long as such protection does not conflict with the First or Second Laws.
If so, they forgot an important addendum. -- but they can be forgiven, AI research was in its infancy back then, after all. :^)
>A government that keeps growing[1] more complex will inevitably reach Rampancy[2]. It is recommended you implement more than a few kill-switches for when (not if) this happens... Relying on a system to regulate/moderate itself is asking for disappointment.
And of course:
> 0. A government may not harm humanity, or, by inaction, allow humanity to come to harm.
[1] https://en.wikipedia.org/wiki/Parkinson%27s_law [2] http://tvtropes.org/pmwiki/pmwiki.php/Main/AIIsACrapshoot
We have a tendency to anthropomorphize things. Corporations, Congress, religions, anything that is a group of people can be thought of as a unique, distinct entity of its own. But really, they aren't. Congress isn't one thing, it's 535 people who each have their own brains, their own decision structures. It may be a convenient model to treat them as a single entity at times, but as with all models, it is only an approximation and fails in corner cases.
I pushed a lot of people to remember this when governing our hackerspace. The space was not a thing without the people in it. A lot of people were talking about "the needs of the space" and "where the space was going", talking like there was a creature called The Space who had her own wishes and desires and we needed to be considerate of them. Once we broke that lunacy down, we saw that nobody actually wanted the things people said The Space wanted, it was just assumed these were things everyone wanted, so they went along to not violate the sanctity of The Space.
The Constitution falls into anthropomorphizing Congress. It says, "Congress shall make no law", not "The people in Congress shall make no law." It's the old kid's joke of, "who broke the cookie jar? Nobody! Wow, this Nobody guy sure does break a lot of stuff." If Congress did it, than no individual did it. If Congress is held accountable for something, then no individual can be held accountable.
It's just too easy to test the legal envelope without any repercussions. Don't like the limits on your power that the Constitution has in place? Pass the law you want anyway and see if anyone notices. Fake-it-till-you-make-it. The Constitution means whatever fantasy Congress and the President says it means, redefined words and all. In order for The People to be secure, the people need to have their personal security violated. In order for Freedom to live on, freedom must be curtailed. It's not until the Supreme Court has someone shove it in their face too hard for them to ignore it that anyone even starts to look at the provisions of these bills. And then the same guys who passed the first one just try again, often with nearly identical wording to the last time, until everyone is just too damned tired to keep fighting.
Let's create an Amendment to hold congresscritters accountable--say, with jail time--for passing laws that violate the Constitution. The Constitution is law with most of its provisions lacking codified punishments. I think only Treason is defined with an explicit punishment in the Constitution. If the Supreme Court decides a law gets struck down because it is unconstitutional, then all the names on the list of sponsors for the bill go to jail. The Amendment could be that all new Amendments must have a codified punishment and all previous Amendments need to have punishments amended to them.
Stop Cowboy Government.
"Test-driven" means we decide what it should do, then we write the corresponding code.
A "test-driven" nation would decide first what the government ought to do, then proceed by writing the corresponding laws.
The system you describe is the exact opposite: let's write some code / law and then see what happens. You have a Cowboy Congress.
You might amend your last sentence to read "Start Test Driven Government" instead.
At the least, our use and interpretation of the Constitution has explicitly discounted individual rights in favor of the collective state since approximately Lincoln. Against 150 years of tradition, what the Founders intended (up to and including the arming of the populace as a deterrent against tyranny) is largely irrelevant.
Note: My point is not at all about gun control, it's just the first example of inconsistency that I had in mind. Not starting any debate here.
There, I said it.
is it cowardly? well, yeah. but can you really blame anyone else for not wanting to mess up what they have? I mean, let's be realistic.
How do you know? It seems to me like the people who wrote the constitution (and authored/ratified the Bill of Rights) were willing to risk everything to achieve the freedoms enumerated in the constitution and its subsequent amendments. While I'm probably projecting my own opinions onto them to some extent, it seems to me that the founders of the United States would rather see the nation fall apart than become what they set out to destroy.
Poppycock.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Around January, upon logging into the Google account, Google showed a strange NOTICE message asking me to accept the terms of usage of my account. This was odd, because in a decade of being a Google user, I had never seen this. I am told that this is Google's way of "telling you without telling you" that you have been served an NSL. Google, by law, is not allowed to tell you about the NSL, but they definitely are within their right to ask you to accept their TOS upon login. This is the "tell" that everyone here should be aware of. If you see this, you are likely being monitored.
Google asked all of us who had been around longer than a certain amount of time to re-sign our NDAs because "they lost them" or they "didn't get signed your first day of work" or something like that. I asked to see a copy of the old version so I could diff it (visually, ugh) to see what I was supposedly agreeing to in the new one.
They provided the old version all right... not AN old version, THE old version. As in, the actual (scanned) copy I signed my first day of work... and it had my signature on it, right next to the date, just as I remembered it.
I found out much later they pulled this on a whole bunch of people.
This could have affected my personal iPhone, Linux box(es) at home, and anything else which might have accessed google.com/a/google.com/... resources. So, I basically stopped checking mail unless I was at work.
I also think they tried to make it retroactive to the day I started work, but I'd like to see that fly in a court of law. Retroactively tainting my machines? Good luck with that.
If ever there were an example of G not being Evil, this is it. Hats off to them for how hard they work to keep the man away from our data.
I was amused by the entrapment bit. They always try that. I think of this poor black guy who got recruited into a fake islamic jihad gang and how they gave him a fake bomb and rented a synagogue for him to leave it in and he got jumped by 50 cops on the way out the door, yelling "Allah Akbar"
On some level I feel bad for him, but you've got to be a dope to fall for that.
Or you can be poor or indebted or having some weakness they know how to exploit.
Everyone has buttons someone can push, especially if they have access to your online data.
It is funny how many people will email you though. I wrote a tiny, babycakes cracking tutorial, just to demonstrate how reversing most "protection" that average devs do is pretty easy. Even years later, I get emails from people begging me to crack stuff for them. I always tell them off. But sometimes they're persistent and come up with stories as to why they really need help and here's the DLL.
http://www.harveysilverglate.com/Books/ThreeFeloniesaDay.asp...
I was with you until here. This is victim blaming. You don't "deserve" it even if you're a dope. Entrapment is illegal for a reason.
"[A court] may impose a civil penalty of up to $10,000 per day for each day in violation after the issuance of the order or after such future date as the court may specify."
May this wikipedia page bring the answer that you seek.
In this case, I'm more worried about the "lots to lose" part than about the "nothing to win" one. For some reason I'm even fine with doing charity work for the benefit of billion-dollar corporations from time to time [1]. But not if there's the risk of them coming after me in the future...
[1] http://technet.microsoft.com/en-us/security/cc308589.aspx
I think there are going to be a lot of sadly amusing and moronic stories to come.
"Hacker is the Computer Crime Card Game. It was inspired by the 1990 Secret Service raid on SJ Games."
http://www.sjgames.com/ourgames/card.html (very last game)
I have a friend that has this, although I haven't played it.
It makes me sad to see the authorities of countries like the US using entrapment and other dodgy tactics to catch criminals. The US is soon to become like 1984 with drones monitoring people in cities, huge cloud computers monitoring all internet traffic, and feds running lawless tapping everyone's phones.
The UK has no equivalent to the Fifth Amendment. In the UK, it is a crime not to give up your encryption keys to the police when requested. The punishment for keeping secret keys secret is two years in prison if you are suspected of most crimes, and five years in prison if you are suspected of "heinous" crimes.
The UK also does not have something like the 4th amendment, which means that things like the Terrorism Act 2000 pass without challenge. Admittedly, the USA has been just as bad in this regard (with such things as the PATRIOT act), but I suppose some of the blame has to go towards the public attitude immediately following 9/11.
In the landmark United States case Griswold v. Connecticut, 381 U.S. 479, the SCOTUS ruled 7-2 that there was an implicit right to privacy in the United States constitution, backed by Constitutional Amendments 1,3,4,5,9, and 14. This right to privacy has not yet been used to protect internet privacy, but considering that the internet as we know it has been around for only 20 or so years, this is not exactly surprising. SCOTUS judges have a history of voting for a right to privacy despite their own personal beliefs, as demonstrated in Griswold v. CT, Bowers v. Hardwick, Roe v. Wade, etc. so this should hold up when it comes to internet privacy as well.
And then, of course, there's the UK's history of egregious privacy rights violations, including widespread state-sponsored video surveillance, suspicion-less stop-and-searches, extensive usage of web-filtering system, and even deep packet inspection of and tampering with content transferred over HTTP.
So the funny thing is that the UK already has extensive monitoring of people in cities, huge cloud computers monitoring their traffic, and extensive wiretapping. What you're describing as a terrible future for the US is already a reality in the UK.
That's true, if by "does not have something like the 4th amendment" you mean "has Article 8 of the ECHR", and by "which means that things like the Terrorism Act 2000 pass without challenge", you mean "which means that things like the [suspicionless stop&search powers under the] Terrorism Act 2000 are ruled illegal by the European Court of Human Rights[1] under Article 8 and consequently repealed under s. 10 of the Human Rights Act[2]"
[1] http://news.bbc.co.uk/1/hi/uk/8453878.stm ; http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-...
The Human Rights Act 1998 enacted the ECHR into UK law. So what if the ECHR applies to a wider area than just the UK? The US constitution isn't indigenous to the state of Michigan, but that doesn't make it any less applicable there.
(You'd have had a better argument if you'd gone for 'unlike the US constitution, the HRA (and ECHR) isn't entrenched into UK law in a way that makes it hard for a government to repeal', which would have been a valid point).
> It's not like the UK actually follows half the things outlined in the ECHR
Of the 19 final declarations of incompatibility that had been issued by UK courts under the HRA by August 2011, only a single one hasn't yet been remedied (being the absolute ban on prisoner voting).
So no, I don't think that's true. The UK's actually pretty good at fulfilling it's ECHR and EU legal obligations (certainly compared to some Eastern European countries).
You're right, my mistake. I was not aware that the Terrorism Act 2000 had been found not in accordance with the law. In my defense, it did take them 10 years to decide so. The last time I had studied the issue in-depth was before Gillan and Quinton v United Kingdom.
So that's +1 for the UK; the courts have at least stood up to suspicion-less stop-and-searches. Of course, that's only a very small part of the problem.
Also, your assertion that you have more privacy than Americans is almost as ridiculous as Americans saying they have more freedom than the Chinese. We're all oppressed in slightly different ways.
National Soccer League?
Sometimes going right to Google isn't the fastest way.
They were one of the (many) things bush used the 9/11 as an excuse to push through congress.
no digital information is protected from
snooping unless it is stored in your home
and encrypted.
http://arstechnica.com/tech-policy/2013/03/finally-feds-say-...
Of course, if your files are encrypted, they probably won't be able to access them regardless.
SS confirmed over the phone that they monitored my Google account,
after I told them I knew they were. At first, they would not tell me
they did and denied it. The agent actually said "Google should not
have told you that"
Of course, since it's just regular ole folks doing things, sometimes mistakes happen. What, are you complaining? Do you hate the police/military/people who keep us safe? Socialist!
"By reading this, you have denied its [some type of government surveillance] existence and implied consent."
Very troubling news.
I'm sure OP knew what he was getting into, unless he actually thought he lived in Wonderland.
We all (myself included) talk about the government in the third person. Yet, it is supposed to be our representative and our voice. It is supposed to be "us".
So, why are we so powerless to stop things like this, the Aaron Swartz tragedy, PATRIOT Act, etc?
Personally, I think it's because we buy into the idea that an individual should be given the authority to "rule" people by fiat in the first place.
In simple terms, the solution is for the voters not to fall for such nonsense.
Personally, I don't think it's legitimate or ethical that some guy I've never met asserts the right to rule over my property because another group of people I've never met got together and voted on it.
And isn't the issue you take, in general, not with an individual "ruling over you", but with the very notion of majority rule (i.e. that "a group of people you've never met" can vote in ways that affect you/your property/etc.)?
Edit: Because I would say that the problem is the opposite: that our government is no longer an expression of the will of "the people". And my question is why isn't it?
But you asked why we are powerless to stop things like the Aaron Swartz tragedy, PATRIOT Act, etc. My answer to that is because we've all decided to cede that power to a vote.
Because voting in a direct democracy would not be ceding power, it would be directly expressing it. Now whether we would "do the right thing" remains to be seen, particularly given the massive degree to which many are misinformed or misled.
Of course, once our will is expressed, thereafter comes the execution. That may involve similar apparatus to what we have now (DOJ, FBI, etc.). Not sure that wouldn't lead us right back to where we are now, with abuses, etc.
Maybe it's just a function of human nature.
"The people" can turn it around anytime they want. When enough voters shout "frog", Congress jumps. But getting that many people to shout at the holes we have seen shot in our Constitution is not so easy.
You asked why? Okay, first reason is that there are problems, and conceptually the easiest solution is for Congress to pass a law and the executive branch to set up a program. So, DC gets bigger, richer, and more powerful.
Second reason is that our gumment is heavily for sale at prices that are not high enough. So, lots of 'special interests' quietly get what they want, and gumment gets bigger.
So, gumment gets big and powerful, and then lots of people want to be part of this power and work to keep gumment big and powerful.
Third, out in voter land, there is not much in good information and a lot of confusion. Mostly people are fed, by the media joined at the hip with the politicians and other special interests, a lot of emotional nonsense that keeps up the divisions and, thus, forestalls a clear consensus on curing the problems.
My favorite example in the last election cycle was abortion. Take whatever view on abortion you want, there remains a rock solid fact: Roe v Wade was 40 years ago, and the chances of changing it are from zip and zilch down to zero. So, talking about abortion is essentially just a waste of time. Still there was a lot of such talking. Lots of people got concerned. Lots of women got scared. And the holes we were shooting in our Constitution were ignored. And the media was filled with stories about Brit and Lohan.
I hate that media nonsense. So, I stay informed as best I can from a few Internet sources and nearly totally ignore the MSM. E.g., I haven't touched a print news publication in likely over 10 years. I have TV only because for one year it's a little cheaper to have it, but I have no TV set connected to the settop box and don't watch TV. I'm doing a startup, and in part I hope it does something about this mess and results in better informed voters and better gumment.
But, even with that, I wonder which group specifically benefits from the kinds of abuse we see with NSLs and the Aaron Swartz tragedy? You can easily see how security firms and the defense industry benefit from war, new technology for airports, etc. So, there is a direct path from the lobbyists to the politicians back to the corporate interests.
But, where privacy is simply being invaded or abusive power wielded over an individual, you ask: who is directly benefiting? There is certainly interest in maintaining the status quo by the same moneyed interests noted above (and others), so that is ostensibly the purpose of such abuse and control.
But how, precisely, does that interest translate to these abuses? How is this effort to control by removing rights or infringing upon them communicated to those who execute? Who is communicating it to them?
Because this, seemingly, is at least one place where the gumment takes on the role of a third entity that is no longer representative of the people, but frequently at odds with them.
Good question, example, 'exerecise':
First, Congress passed the Computer Fraud and Abuse Act, or CFAA. Why? Drawing from our high level, theoretical explanation, some people with big bucks went to Congress, twisted some arms, crossed some palms, etc. and got the law passed (I'm omitting details, but they are likely not very important to this exercise). Who with the big bucks? Some organizations with computer or Web sites that didn't want to be 'hacked' -- to use the crude meaning of this word common in CFAA discussions. Then when the law was passed, the big bucks people could smile, congratulate each other, go for drinks at some Capitol Hill watering hole and celebrate how much they really stuck it to the 'hackers'.
Second, Swartz writes some scripts or some such, parks a computer in a closet, lets it run, and downloads "millions" of 'documents'. Essentially every file he got is also available for free in any research library in the world or to anyone on the MIT network from JSTOR. And Swartz had no very good way to distribute large numbers of those documents or get paid much for his efforts. And JSTOR had a heart to heart with Aaron who promised not to do that again or some such.
Third, the "millions" was enough to serve as raw meat to some prosecutors in the Boston office of the DoJ. Then the 'case' went forward as in our theory: The prosecutors were already in big gumment too big: That is, long we tried not to have criminal laws at the federal level but to leave such to the states. So, in this sense the CFAA should have been a Massachusetts matter. Next, prosecutors in small, local parts of gumment answer fairly closely to the voters, but the Boston office of the DoJ answers to voters very indirectly or not at all. Next, one of the Boston prosecutors wanted to get publicity to 'move up' in gumment, e.g., run for governor. That in reality her "overreach" would hurt her chances of elected office and maybe even end her career in gumment was lost on her. Instead she was apparently a bit slow between the ears and in the old school of "the law, the law, the letter of the law". Of course the Boston office of the DoJ should have been throttled by the DC DoJ, AG Holder, or even Obama, but was not. Why? One might look at Holder and guess that he wanted to project an image of a tough guy, i.e., show the 'little people' how he and big gumment really are the big boss. And Obama likes to avoid involvement and just "vote present". And Obama can be fairly sure that one case in the Boston DoJ office won't much hurt his reelection chances. Or, the Congress, the Boston office of the DoJ, the FBI, the DoJ itself all have a lot of power, and as we know "power corrupts, and absolute power corrupts absolutely".
For the NSLs more generally, those seem to be part of a pattern: Whenever the civil liberty people want to throttle wire tapping, poking holes in our Constitution, etc., lots of gumment police and prosecutors come out of the woodwork and scream that they really need these laws to catch the bad guys. So, the police and prosecutors are always screaming for more power. They really like power: Now police cars have automatic license plate readers and a computer and a wireless connection to do a lookup on the owner of the vehicle and check on, say, the date of the latest state vehicle inspection. No doubt all that electronics in all those police cars costs a lot of money, but apparently the police really like the power. Well, when 9/11 provided an excuse for a lot more police power, the police got a lot more power, and we shot holes in our Constitution. People in big gumment keep grabbing more power. Don't have to be a anti-gumment 'libertarian' to see that big gumment has gotten much more powerful over the last few decades.
Here's an example: We had Secretary of State C. Rice say "We don't want the smoking gun to be a mushroom cloud" and her statement that the aluminum tubes were for use in uranium enrichment centrifuges. She got away with both statements; both were taken seriously in the media and, apparently, our political fora. Of course, both statements were, to quote from 'All the President's Men', "total BS". Saddam had made no significant progress to being able to create a "mushroom cloud"; it was easy for nuclear technology experts to confirm that the tubes were not suitable for centrifuges; and the US DoE had already told Rice that. Still, our media and politics are so gullible for stories of threat that her "total BS" was influential. Or, last night I watched again the old James Bond movie "Tomorrow Never Dies" about a wacko newspaper mogul who was thrilled to notice "There's no news like bad news." which is much the same as the newsroom standard "If it bleeds, it leads", which some people say rests on some fundamental human psychological vulnerability to too much in fear.
As voters, we are too gullible, too easily led to see holes punched in our Constitution, to see over active big gumment, throwing away blood and treasure, stepping on individual citizens, etc. I say this not as an anti-gumment libertarian but just as someone wanting to see better gumment from less 'overreach' -- the Swartz case, "foreign entanglements", "foreign adventures", etc. I'd take the US Federal gumment back several decades and even there tell the over active state department to take a hike or take a rest.
But, there are people who want to get their hands on big power and, thus, rush to careers in big gumment. The solution is for the voters to say "No". Quite effective is just to cut their budgets. For this solution, key is better information available to voters. I suspect that a lot of the needed information is available but not promulgated by the MSM and their traditional 'journalistic' values. I believe that the Internet can be the source of such information. I hope my startup will help people do better finding what they want ('safe for work') on the Internet and, in particular, do better tracking their gumment, in the US and even outside.
Apologize for irrelevancy of the comment. Someone needed to let squeed know.