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"They do not know how they got on the list. They cannot get off the list."

The default description of the Surveillance State is "Orwellian". But in a recent post for the Atlantic, Rebecca Rosen argues that "Kafkaesque" is much closer to the mark. The arbitrary, inscrutable, and inescapable nature of the No Fly List encapsulates this character perfectly.

http://www.theatlantic.com/technology/archive/2013/06/why-sh...

Orwell, Kafka, Huxley, others, all had great insights.

Sadly, John Brunner doesn't get much love. His novels greatly influenced my worldviews.

http://en.wikipedia.org/wiki/The_Shockwave_Rider

http://en.wikipedia.org/wiki/The_Sheep_Look_Up

I've always thought of no-fly lists as completely out of place in a democracy. Either you have enough evidence to charge them with something or you have no business restricting them from doing anything.

Exactly. And if you have enough evidence to charge them with a crime, then you should do so and take the person to court. And if they are found guilty by a jury of their peers, punishment should be assessed. If not, the person is innocent and should not be inconvenienced or harassed further.

No citizen should be victim of unknown charges and/or evidence that impacts their free movement through society.

> No citizen should be victim of unknown charges and/or evidence that impacts their free movement through society.

Why should I need to be a citizen to not have my human rights violated? If it is in the UN Declaration of Human Rights[1] then chances are your country signed it, agreed that would be the minimum standard, that these rights were inalienable and most importantly, that they applied to everyone.

You have to admit it seems a bit silly (at least from my side of the pond) that when it comes to human rights the US seems to ignore the UNDoHR and when it comes to it's international drug policy it enforces the UN Single Drug Convention all over the world with aggression to the point that no country in the world besides Peru can even make cannabis legal in their own nation state without violating international law (which WILL be enforced).

[1] http://www.un.org/en/documents/udhr/

I completely agree with you. Unfortunately--unless I'm wildly mistaken--the very sad thing about American culture/politics is a lack of concern for the UNDoHR and everyone else on the planet.

That being said, I specifically did not say 'US citizen' for a reason. I was being inclusive about a general human right as a citizen anywhere to freely move through a society anywhere. It was a conscious choice on my part, and was meant to be more along the lines of the UNDoHR. So, I meant human citizen, as there are very few stateless persons (yes, there are some, but I'm not really bothering to get into that issue).

> Unfortunately--unless I'm wildly mistaken--the very sad thing about American culture/politics is a lack of concern for the UNDoHR and everyone else on the planet.

It's not that Americans don't care about anyone else on the planet (I doubt they care less than people in Western European countries). It's that Americans aren't willing to bind their sovereign freedom of action. The idea of "human citizen[ship]" is anathama to American thought, because citizenship implies reciprocal rights and obligations, and Americans viscerally hate the idea of being obligated or beholden to anyone else. Hell, a lot of Americans think that the arrow should be pointed in the opposite direction: more state sovereignty (i.e. people within states should be less obligated to rules made by the federal government).

To this American, you are only half right. I fully embrace the same natural rights for all people, regardless of nationality. I think my government is ethically constrained from violating the rights of all individuals, U.S. citizen or not. And yes, I support state sovereignty over the federal government.

Recognition of and respect for human rights need not be bound to sovereign freedom of action, as you put it. Freedom of action does not have to imply freedom to coerce.

I don't think most Americans would think of the situation in terms of "natural rights." They might think of Christian morality, in terms of how we should treat other people, but I don't think the Bible has much to say about search and seizure, or electronic privacy, etc.

And for myself, I don't like to argue in terms of any sort of thing, "natural rights" or "God's law" or whatever, that a doctor couldn't find if he cut me open and poked around. To me, the ability to act is the only thing that exists, and "rights" are just people in a community agreeing to use collective force to enforce whatever they decide to call "rights." The idea that the community as a whole can be bound to limit its ability to act with respect to people outside that compact is to me not a sensible thing.

And I think that while most Americans wouldn't phrase it precisely in that way, their thinking is along similar lines. We're a country that strenuously reserves the right to do whatever the hell we want, bound only by our own collective conscience. We want to do right by people, but we get to be the final arbiters of what's right and what is justified.

> I don't think most Americans would think of the situation in terms of "natural rights."

The folks who architected this nation most certainly did, and since they're the ones who devised the sovereignty of the states and embodied the individualism and self-reliance and runs undercurrent to your claim that Americans "hate the idea of being obligated or beholden to anyone else" I think it's perfectly fair to characterize the debate in those terms. And they did in fact see these as universal rights: "We hold these truths to be self-evident, that all men are created equal..."

Anyways, specifically I take issue with your claim that "the idea of "human citizen[ship]" is anathama to American thought, because citizenship implies reciprocal rights and obligations." Obligations, yes, but it does not follow that the extension of our recognized rights to all people is in any way contradictory to our ideals, your personal views on collective rights notwithstanding.

You have to be careful mixing and matching bits and pieces of philosophy from different groups of people in different time periods. The framers did talk about natural rights, but you need look no further than their interactions with the American Indians to understand that when they talked about "natural rights" they were more referring to rights inherent to Englishmen than rights common to all humans. To put it glibly, do you think the framers would have objected to using drones against the American Indian threat?

> but it does not follow that the extension of our recognized rights to all people is in any way contradictory to our ideals

No matter what theory of the nature of rights you subscribe to, as a practical matter "rights" are limits on collective action. To say that, say, a non-American in Yemen has "rights" is to say that there are things that the American people, acting through Congress, cannot do. That is what is inconsistent with Americans' perceptions of the world. Not because we think people in Yemen are a lesser sort of human, but because Americans don't accept the idea that there is some higher power that can decide what America can and cannot do.

You are wildly mistaken.

Don't believe everything you see in the news or from opinion polls.

There are no signatories to the Universal Declaration of Human Rights, since it is not a legally binding document. There is however the list of countries that voted for it, and the US is among those countries.

I wonder if this is still a country that would vote for such a document. We plainly have no respect for the ideas that it represents.

Do you wonder if the people would vote for it or the government? Because I see those as two different things.

Well, the government did vote for it, we know that much from history. I think the people would vote for it, I am optimistic and think that most people have their hearts in the right places.

Would the government vote for it again, if voting for it was anything other than a meaningless gesture? I suspect not. Not if it actually had teeth.

It's worth noting that there's a big difference between appreciating and agreeing with the ideals in the UNDoHR and being willing to vote in an election or poll that explicitly or implicitly legitimizes the UN's authority to govern.

My problem with things like the UDHR is that it is worded in a way as that the document provides these freedoms to human beings. This implies that simply changing the document can possibly take these rights away. That's the idea behind the language of the US Constitution (the Bill of Rights at least), it seems to provide rights to the people but instead restricts the government from infringing on the natural rights of the people.

For instance, the first article of the UDHR states that all human beings are born free and equal in dignity and rights. What it should say is something more along the lines that no form of government may make a law that prevents any human from being born free and equal in dignity and rights.

Something like that.

Granted, it's possible to strike the article from the document regardless of which way it is worded but I personally like documents such as this to have language that government is restricted from infringing my rights as opposed to government telling me what rights I have.

I'm not sure this principle works in reality. It seems to entail that somebody who fails their driving exam must still be allowed to drive and that somebody with no training should be able to advertise himself as a surgeon.

(Just in case anybody didn't follow the above: Failing an exam or lacking training are not crimes you can be charged with, so under the principle "Either you have enough evidence to charge them with something or you have no business restricting them from doing anything," we have no business restricting anyone from doing anything on those bases.)

Most constitutions include a right to speedy trial. One would think that that is because the framers had experience with secret courts, detention for political reasons &c. This institutional memory has been lost.

I am not sure what this has to do with what I said. Did you mean to respond to somebody else?

> It seems to entail that somebody who fails their driving exam must still be allowed to drive and that somebody with no training should be able to advertise himself as a surgeon.

Yes, it absolutely does. Life as a free person is dangerous, and being free necessarily means not being protected from potential harm caused by others. It means people are held responsible after the fact, but not restrained prior.

If that's what you think, you are welcome to your opinion, but I don't believe you'll find a lot of popular support for the idea that unlicensed drivers and fake surgeons are things we should embrace.

I don't see freedom requiring to embrace such things. Freedom doesn't mean you can do anything you feel like doing, that's anarchy. Freedom means you can do whatever you like that does not infringe upon the rights of the person next to you. You can't make other people slaves to your freedom.

The difference I would say about your examples is that the actions of those people will potentially infringe directly upon the rights of others so there is probable cause for prior restraint. But even in those cases you can point out that the person wishes to perform a singular direct action without adequate training on another person that will most likely result in the harming of that person. You are at least accusing that person of wanting to do something that will likely be bad, with evidence to back it up, since performing surgery without training is a bad idea. I'm sure you can find examples of why it's a bad idea.

I would see that as quite different than preventing a person from boarding an aircraft with absolutely no evidence or, in some cases, even an accusation of any wrongdoing.

Why does a person on a public road infringe on rights but not a person on a plane in public airspace? In both cases, the idea seems to be "You can't use this public conduit if we believe you'd be an unreasonable danger to the other people around." Neither requires a trial.

Because they are two very different things.

When driving a car you are the operator and need to show you can do so safely without harming others on the public road. You are not required to have a license to be a passenger in a car on a public road.

When flying in an aircraft you are a passenger and therefore no license is required. But be assured that guy up front flying the airplane has his pilot's license that shows they are capable of doing so safely.

When you are restricted from driving on a public road due to lack of a license that is society actively accusing you of being a danger to everyone else. The issue you are trying to compare this to are people being on a no-fly list that don't know why they are on this list and no one will tell them.

That's the main difference, the accusation. If the police were confiscating driver's licenses from people and forcing them to walk instead of driving without explanation, then that would be the same thing.

Now, if you have a history of attempting to bring down airplanes while in flight while you were on board, then they could rightfully restrict you from entering any other planes. At least in that case there's the accusation.

But I don't understand your thought of being restricted without trial as a strange concept. It's done all the time. Try to enter a restricted government building or a military base without permission and see how far you get. Even better, enter a stranger's house and see what happens. There are numerous restrictions in a free society that in essence helps maintain that freedom. Assuming that these restrictions are placed equally on everyone then that person next to you is restricted from doing things to you that you won't like just as much as you are restricted from doing them to him.

Of course, these restrictions can get oppressive and abusive if allowed to get out of hand.

It may not be illegal to fail a driving exam, but it is illegal to drive without a license. You acquire said license by passing the exam.

Which means that we are restricting them from driving without having charged them with anything. Which is what we're talking about here.

It is a restriction from operating a particular piece of machinery on (essentially) public land, isnt it? You can still travel by the same mechanism as long as you are not the one operating it.

That seems fairly different from restricting travel by air.

Freedom does not mean you are allowed to do or refrain everything you want because you have to respect the freedom of everybody else. Therefore your freedom ends when it limits the freedom of somebody else. It is not hard to argue that you are (probably) limiting the freedom of other people to walk safely across streets when you are driving without license or after having a few drinks. Freedom and prohibitions are not mutual exclusive.

No, we're not. We're just saying that if they get caught driving without a license, they'll likely be prosecuted for that offense. They're perfectly free to try not getting caught. People on the no-fly list will be physically restrained from boarding a plane.

Actually you can drive a vehicle all you want without a license as long as you don't do it on a public road. The license doesn't allow you to drive a vehicle; it allows you to use public roads that have certain rules, for safety mostly, associated with them. Your license proves that you understand said rules and will obey them while on the public road. A lack of a license shows you cannot be bothered to follow the rules and are a danger to everyone else on the road. Therefore, you must be removed from the road for the safety of the others. Preventing an unlicensed driver from using a public road is more about the other people on the road than the single driver. Your freedom doesn't allow you to be a danger to others.

For instance, in many US states you are not required to have a license to operate farm equipment on a public road. There's likely many reasons for this but the rules of the road in those areas do not restrict you in those cases.

If I had a large enough tract of land that a shortcut going through the middle was beneficial to people around the property I can put up a sign at the entrance that states if you wish to use my road on my land then you follow my rules. It's the same principle.

Also, many a young teenager legally learned to drive a vehicle, cars or motorcycles, on private land even though it would be illegal for them to do so on a public road.

1. The exam is qualifying you to operate heavy machinery in public.

2. You can re-take the exam if you fail it the first time.

3. You can operate a bicycle or be a passenger on any bus or train without a driver's license.

Your argument is not applicable. Riding a plane does not involve operating a giant machine on a public road around other giant machines and pedestrians.

"Either you have enough evidence to charge them with something or you have no business restricting them from doing anything," we have no business restricting anyone from doing anything on those bases.)

I imagine what the OP meant was that you have no business restricting them from doing anything otherwise lawful if they have not been charged with a crime (for example travelling or calling someone etc). Otherwise the statement is nonsensical and means they don't accept civil society and the rule of law (your interpretation).

This is a founding principle of many legal systems - that laws and restrictions have to be clearly explained and open to challenge, and judgements have to be public - and yet it has been violated in the West for some time by no-fly lists and watch-lists which have no way of being challenged, no explanation as to why people end up on them, and often no way to get off.

Great point and agreed, with one correction. Democracy does not offer any guarantees of freedom, and fortunately we have a constitution which was intended to set limits on encroachment of individual rights.

To quote Marvin Simkin, "Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote."

The same argument could be made for felon's rights, by the way. Either a person is too dangerous to be free or you have no business taking away his rights.

The only reason you have a constitution is because the "wolves" (the majority) voluntarily and democratically accepts it. A constitution doesn't guarantee anything, it merely expresses the democratic consensus, and it can and is overridden when the majority really wants to.

> The only reason you have a constitution is because the "wolves" (the majority) voluntarily and democratically accepts it.

No, this is not the case. The power of the majority over the minority is limited by the constitution - the Bill of Rights proscribes the oppression of the minority at the hands of the voting majority. The constitution itself is protected from the majority (the government) by the credible threat of a well-armed populace who are willing to fight to protect it.

The constitution is a simple majority away from being nullified at all times. Simply elect a president and congress who will do the bidding of the majority, regardless of the constitution, and the judicial branch gets steamrolled.

That's what's terrifying about the surveillance. While it could be genuinely benign right now, it only takes one bad election to put the equipment in the hands of very bad people who could do amazingly bad things with it.

the majority (the government)

Oh. That's certainly not what I understood from the quote. How is the government the majority? And then, what's the oppressed minority? The other members of congress?

I always understood that quote to mean the majority, as in, the majority of the population. Otherwise it's mixing majorities and minorities of different things, which makes no sense.

> That's certainly not what I understood from the quote. How is the government the majority?

In the U.S. the law making branch of the government is comprised of representatives elected by the people. These representatives necessarily draft laws to suit the majority who elected them. Ergo, the legislative branch wields power at the behest of the majority, analogous to the wolves in the quote. Governance by mob rule, i.e. pure democracy, entails no inherent constraints on what the government (comprised of law makers elected by the majority) could do to or take from the rest of the populace. We are, instead, a constitutional republic, which constrains the majority-elected government to a narrow set of powers enumerated in the constitution.

The quote was written in 1992 in reference to two lawsuits in the state of California, itself a constitutional republic. One resulted in the quashing of a state law which was supported by the majority but nonetheless violated the state and federal constitutions. The other resulted in the removal of a cross from a popular public landmark. Much outcry was made at the time that the will of the majority was being thwarted.

I'll leave here the entirety of Simkin's posting that contained the quote:

The ACLU's cross lawsuit and the Libertarians' tax lawsuit share an interesting theme. We have been treated to the spectacle of politicians pleading for permission to continue breaking the law. In the case of the jail tax, it is particularly ironic that the lawbreakers say they need the illegal money so they can lock up the lawbreakers. Ask not for whom the lock clicks.

Democracy is not freedom. Democracy is two wolves and a lamb voting on what to eat for lunch. Freedom comes from the recognition of certain rights which may not be taken, not even by a 99% vote. Those rights are spelled out in the Bill of Rights and in our California Constitution. Voters and politicians alike would do well to take a look at the rights we each hold, which must never be chipped away by the whim of the majority.

Ok, then I hadn't misunderstood.

The constitution only "protected" the minority - by limiting government action - because the majority shares a democratic consensus that those rules should be followed, even if they go against some particular law they support. Otherwise, they could have simply forced the issue, even in violation of the constitution. Besides, the constitutions themselves have ways for the majority to amend them.

The constitution is just a mechanism for the citizens to have a better defined set of shared democratic beliefs. It doesn't have magical protection powers.

The quote was indeed referring to the government acting as the agent of the majority, if that's the misunderstanding you are referring to.

Yes, of course the Constitution is simply a piece of paper. It has no special powers. You can find plenty of people, perhaps even a majority, who are in favor of incremental abuses of the government such as this latest NSA scandal. You would find very few who would support wholesale dissolution of the constitution. The government could try absent consent of the people, but would face certain rebellion.

The Constitution can of course be amended, but requires more than a simple majority - a super-majority of the federal legislature to pass and ratification by 3/4 of the states. This of course does not happen often.

But fundamentally, of course the Constitution and the government exist at the behest of the people. It does not have magical protection powers. It does, however, have the protection of an armed populace willing to fight to defend it, even though some of those same people support laws that infringe on other's rights.

And what about their "we can search everything you have within a 100-mile radius of the border" policy? That's a huge civil liberties abuse too and one that must be dealt with.

That is not now and never has been the policy. The "100 mile Constitution free zone" is one of the most outrageously misleading fabrications on the internet. See: http://blog.constitutioncenter.org/2013/02/does-a-constituti....

You can't leave out the crucial bit that it's all about border searches, for people who have recently crossed the border. All the policy means is that border searches don't literally have to occur at the border (they might be on a major cross-border thoroughfare somewhat inland).

The 4th amendment has never meant that the government or customs needs a warrant to search people at the border.

I'd like to know, why doesn't the 4th amendment mean that? It seems pretty clear, and there's no such exclusion listed.

The 4th amendment says: "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."

It doesn't read: "all searches require a warrant except those specifically listed." The text plainly allows searches that are not "unreasonable."

As a matter of historical practice, borders searches, for customs purposes and otherwise, are considered reasonable. Warrant-less border searches were authorized by the First Congress in 1789.

Thanks. I have to wonder just how you can say that a search which would be unreasonable if performed at e.g. a county border becomes reasonable at a country border.

Because counties are administrative units, while countries are sovereign entities. One of the fundamental characteristics of a sovereign is the establishment and policing of a border. What it means to be a "country" is, among other things, some people getting together to use force to keep other people out. This was the framers' understanding of the world, a world of sovereign entities with borders and a right to police them. Within this framework of understanding, you can't say you don't reasonably expect not to be subject to a search when crossing a border. One of the basic purposes of the Constitution was to invest the federal government with primacy with respect to the national border: preserving it (collective defense), regulating the shipment of goods through it, taxing the shipment of goods through it (customs), etc.

Indeed, one of the primary ways the federal government was to be funded was through taxes on imports, which implies the existence of a customs function at the border. Do you think the framers envisioned a customs system that couldn't enforce its tariffs without getting a court order to search incoming ships? They obviously didn't envision that, because one of the first things Congress did was to set up the framework for warrant-less customs searches.

OK, I think that makes sense. I would generally object to an appeal to tradition like this, but it seems to me that the use of the word "reasonable" is basically an explicit call out to tradition, so I guess that's just how it's written.

Do you know what, if any, limits are placed on border searches? Is literally anything "reasonable" there, or are the limits just different?

The common law process is by its nature an appeal to tradition. If there is a governing principle in our society, it's "this is okay because we've always done it this way." Yes, in a way it's ridiculous because we end up arguing about what people thought about border searches in 1789, but that's the nature of our society. We don't come to a consensus to solve problems, because we never agree on anything. Instead, we litigate them and grudgingly accept the outcomes. That's why court cases feature so prominently in our culture (Brown v. Board, Roe v. Wade, etc). Non-Americans, understandably, usually find it utterly bizarre.

Re: border searches, I'm not well-versed so I'll just point you to the wikipedia page: http://en.wikipedia.org/wiki/Border_search_exception. Long story short, it still has to be reasonable, it's just that the bar is lowered because you should expect to get searched at a border.

Because when the US was established, and still today, customs duties were levied on some imports - this was how the government used to finance itself. People who wanted to evade the customs duty (and then sell the goods to undercut their competitors who had paid it) would attempt to smuggle things across the border. This behavior is prevalent enough that random searches at national borders have been the norm for centuries, along with searches for other things like contraband (drugs, child porn, endangered animals), the occasional spy or fugitive from justice elsewhere, and so on.

You're right about what the 4th amendment really says, and it's so spectacularly inane that I would never believe that educated adults could be fooled if I hadn't seen it personally. It really does just say "the government cannot search you unless the government deems the search reasonable or the government writes a piece of paper saying that it can conduct a search." And people sincerely think that is in any way a protection of rights.

If you view the government as a single entity, then the whole concept is irrelevant since it can amend, or even simply ignore the constitution as whole.

As far as I understand it, the idea is that due to the separation of powers, the people who judge whether a particular search is reasonable are not the same who create and implement them, so yes, there is in theory some protection of rights.

You can't leave out the crucial bit that it's all about border searches, for people who have recently crossed the border.

Are you suggesting that if I haven't recently crossed a border, I'm somehow immune to these searches, or have a right to refuse them?

http://www.texasobserver.org/border-patrol-takes-no-for-an-a...

http://www.flexyourrights.org/faqs/my-rights-at-checkpoints/

Thanks for these. From the first article, according to a CBP spokesman:

“Although motorists are not legally required to answer the questions ‘are you a U.S. citizen and where are you headed,’ they will not be allowed to proceed until the inspecting agent is satisfied that the occupants of vehicles traveling through the checkpoint are legally present in the U.S.”

That suggests to me that CBP, at least, sees these stops as rather custodial.

That second article is definitely less than honest on some of its other points - for example, it turns out that drug dogs in the US alert when their handler wants them to rather than on finding drugs, so if the police have a drug dog with them they can effectively search the car of anyone they take a dislike to. I'm curious as to whether it's omitting important details about the DHS checkpoints too.

> You can't leave out the crucial bit that it's all about border searches, for people who have recently crossed the border.

Sadly, this is entirely false. The Border Patrol routinely sets up suspicion-less searches on Interstate 5 in California, 60 miles from the US border with Mexico. The vast majority of those stopped and searched are U.S. citizens who have not crossed the border recently.

This is one of the most outrageously false and misleading posts I have encountered on here.

http://www.aopa.org/News-and-Video/All-News/2013/May/23/Fres...

Further, Iowa City is a long way from the border. 400 miles, perhaps.

Because nobody's mentioned it yet, this has already been dealt with. There's a legal precedent:

Ameida-Sanchez v. US

    But the search of the petitioner's automobile by a roving patrol, on a
    California road that lies at all points at least 20 miles north of the
    Mexican border,[5] was of a wholly different sort. In the absence of
    probable cause or consent, that search violated the petitioner's
    Fourth Amendment right to be free of "unreasonable searches and
    seizures."

"There are probably around 100 people in the entire country that shouldn't fly" <- this is the problem

if there are people who are guilty of something, they should be prosecuted and jailed. There are procedures for that. There is no "actually you did not do anything, but you're high risk for flying" approach in any law-respecting country. Either you're guilty or you're not.

They are also ignoring the side effects. What happens in any place where incompetence/corruption run rampant?

People find ways around.

The more people they add to the no-fly list for no reason, the more people will be willing to travel with fake documents. Or create business around the block (those people can probably fly airwave). Soon, there will be so much work arounds that the one or two terrorist per century that would have been deterred by that measure will just have plenty of options to bypass it as well.

1) Smear some chemical trace on a competitor's clothing or luggage, and/or submit an "anonymous tip".

2) Profit!

Seriously, though -- think about it. Secret system -- who knows how it's being gamed.

Can a person still fly charter if they are on the no-fly list?