Comment by furyg3 | Hacker News Reader

Comment by furyg3 | Hacker News Reader

US Persons are protected from surveillance without a warrant. This is a right guaranteed to them by the Constitution. The burden of establishing if someone is a US Person should fall on the government agency performing surveillance.

If they cannot establish if a US Person is party to the conversation, they should assume one is and remove the potential of violating this constitutionally guaranteed right. This could be due to a failure of the service provider (Google, Verizon) to collect this information (they don't), or the fact that the communications are anonymous or encrypted, etc. Proving a negative can be tough, but that burden is the government's to bear.

Of course there is also a moral component… I'm pretty shocked that as patriotic as we are about the sacred rights of the constitution, we somehow feel that it is morally ok to not afford these protections when dealing with foreigners. The Declaration of Independence says:

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

With the rights to be enshrined more specifically later in the Constitution. How can anyone passionately agree with these words and not believe that the just treatment afforded to US citizens should somehow not be afforded to non-citizens, or citizens who choose to use a particular software program?

The Constitution doesn't guarantee warrants for all searches, let alone all "surveillance". It says two things:

* All searches & seizures will be reasonable and

* All warrants will be particular and based on probable cause.

Read an introduction to criminal law to verify that these are independent protections. The latter was intended as an antidote to the British "General Warrant", a transferable warrant that gave officials the right to toss any house in the empire.

Warrantless searches of various kinds have been been a constant throughout the history of the US. Electronic surveillance of US citizens began in the mid-1800s, when the US tapped telegraph lines prior to (and during) the civil war.

Lawyers on HN and elsewhere have been pretty unequivocal in stating that the 4th amendment protects possessions, not communications.

But if copyright infringement is theft, doesn't that make communications into possessions?

Phone calls are protected by the 4th Amendment but emails are not. (Under current interpretations of the 4th Amendment.)

Well, even phone calls are weird.

The Supreme Court said that people have a reasonable expectation of privacy while using the phone, and that therefore the 4th Amendment applied. Part of the reason people had that expectation was that Congress had introduced much stronger regulation of telephone circuits in 1934 so it wasn't like just anybody was allowed to tap into utility lines.

However the only protection is the expectation of privacy, which Congress can take away by saying "you should not expect communications to be private in these situations". And that's exactly what they did in 1968 in response to those Supreme Court decisions.

One important provision of that law were that the President was allowed to take "such measures as he deems necessary:"

to protect the nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information against foreign intelligence activities.

EMails have less expectation of privacy, though Congress did try with ECPA (which was passed when POP was the way to obtain email, not IMAP). But even ECPA gives broad exceptions for FISA surveillance.

Part of the reason people had that expectation was that Congress had introduced much stronger regulation of telephone circuits in 1934 so it wasn't like just anybody was allowed to tap into utility lines.

I wonder how well we would take it if we discovered that in addition to the NSA, Gmail was also sending all communications directly to Joe Blow in Podunk, Indiana, for his personal edification and entertainment? After all, it's not like we had any expectation of privacy for our email. What laws would this violate?

Well, is Joe Blow a Google employee? It might not break any laws at all in that case.

If he's not a Google employee it would probably violate ECPA, but ECPA explicitly allows foreign intelligence surveillance to occur (even over the Internet), so that wouldn't help against government surveillance being done in accordance with FISA.

No, Joe Blow is just some random dude. He did Sergey a solid once, and in return he gets access to all of Gmail. ECPA is a dead letter, and was specifically about government not private actions anyway.

My point, which admittedly I'm still not making clearly, is that it's weird to consider phone calls to be some sort of judicial fluke that was far outside accepted 4th Amendment jurisprudence. Americans didn't want the government listening in on their phone calls. Since we clearly couldn't elect a government that would abstain from that noxious practice, it was a good thing the third branch stepped in for a time to stop it. Maybe sometime in the future we'll be that fortunate again.

If one is uncomfortable with the Joe Blow example, consider how much worse it is for the government to be reading all of Gmail than it would be for Joe Blow to be doing that.

Reply on news.ycombinator.com