To turn your comment around a little bit in a way that places responsibility on normal citizens or congresspeople instead of the NSA, it's inconvenient to disagree with authority, or deal with a lie, but once you start conceding rights or letting one branch of government lie to another, where do you stop? What's tolerated is encouraged, as most parents would suggest[0].
When this broke, a lot of people said "we already knew!" We did. But when you're explicitly confronted with something, you get to decide whether you're going to tolerate it or not. In fact, you have to - there's no way to not decide whether to tolerate something or not.
0. Incidentally, I wish we would start seeing ourselves as parents of a gov, if for no other reason than to not see ourselves as children.
This goes both ways (we have a Supreme Court endowed "right to privacy" that is nowhere in the constitution specifically, but results from cumulative analysis of several amendments).
The language in the constitution may seem extremely cut and dry, but there are at least ten thousand lines of binding precedent for each word in the bill of rights.
Truth be told, if the US constitution would be written or updated today, then the 4th amendment (or anything like it) wouldn't be there - you know it, they know it. The constitution is their only legal barrier in doing whatever they want to do.
Also, it isn't true that "unreasonable" is meaningless. A person subject to search without being a suspect in wrongdoing is unreasonable, unless you say that everybody is a suspect and that's also unreasonable.
You can't just pretend the 4th amendment says whatever you want it to say. It's written using much narrower language than the 1st, and it's use of "reasonable" invites judicial balancing and exception-making in its application.
The "Elastic Clause" is a classic example, which ostensibly constrains, but through the introduction of the phrase "Necessary and Proper", vastly expands the power of the federal government. There are numerous examples of similar qualifications throughout.
Common law is a more conservative approach in many ways, because laws are seen not as coming from some abstract, idealized system designed years and years ago, but strongly informed by the history of the law as lived through the people subject to it.
For example, take the 4th amendment. We're protected from "unreasonable searches and seizures." If you're pulled over for an arrest, does a police officer have the right to search your car? Your glovebox? Your trunk? How about your cellphone? Is the answer, "No, unless Congress passess a law?" Is it, "No, even if Congress passes a law?" If the latter, how do we know and when? What if judges disagree?
That's not even to point out that "unreasonable" not only varies between individuals but across time. John Adams didn't think the Alien and Sedition Acts were unconstitutional, for example, though Thomas Jefferson surely did. And what would be considered "unreasonable" to them might be wholly reasonable to us, or vice versa.
Congress or other legislative bodies are free to pass laws that specify intent, BTW. They're just awful at it. Really awful. So awful that the same Congress might pass two laws with obviously contradictory intent. Or pass laws which are deliberately open to multiple interpretations for the sake of getting a bill passed more quickly.
http://en.wikipedia.org/wiki/Judicial_review_in_the_United_S...
I think the impedance mismatch is most clearly illustrated when you try to apply the text of the 4th amendment to something like the NSA getting call detail records from AT&T, or search histories from Google. The 4th amendment very clearly refers to "their... papers." To this English speaker, it strains the definition of "their" (i.e. "your's") to say that some electronic record that AT&T or Google generated that you never even had access to much less actually possessed is nonetheless "your" private paper or effect. It doesn't make any sense at all.
And people don't generally view their call records as something that's expected to be public. Many people would be rather embarrassed if their call records were made public. Same for their search histories, and they wouldn't feel comfortable with the idea that there's a person on the other side of the screen reading their queries if they didn't think it was all completely anonymous. The government is trying to break that wall of anonymity.
Also, the 4th amendment does not use the phrase "not public." It gives four examples that are intensely private: your person, your home, your effects, your papers. How private is data that you share with hundreds of people you don't even know?
You can't ignore the plain words on the page for your version of what you think the "spirit" of the language is. The framers could have drafted the 4th amendment much more broadly even only accounting for information sources that existed back then. They did not sue that, And you have to give effect to this conscious choice. P
I realize that the court ruling was about private computers, not data on servers, but as you said, it makes a difference if the informations systems you use can be expected to produce 'public' records.
What is different when the whole situation is made digital? I'm not saying all digital data held by third party companies is private, of course, but surely some of it should be.
And please don't bring up encryption for the moment, that only sidesteps the issue. There is no real-world unbreakable lock. This is a discussion about search and privacy rights.
But compare a safety deposit box to the kind of digital communications the NSA is collecting. The bank cannot open your safety deposit box. You have the key. Hundreds of strangers might work at the bank (just as hundreds of strangers might live in your apartment building), but none of them can access the contents of your box (obviously you have no privacy interest in the box itself, e.g. anything on the outside). It would be illegal for anyone at the bank to access that box. Generally the bank doesn't know whats in your box. You put it in there directly, you don't hand it to a bank employee to store. Certainly, they don't rummage through the box as a basic part of the service they provide to you. Compare that to an email in a gmail account or a Facebook profile or even a phone call made over a cell network. Your information is exposed, unprotected, to potentially hundreds of employees at those companies. And they rummage through that data as a matter of course, whether to target advertising or to do traffic shaping, etc. You have no property interest in that data. You can't sue the company for losing it, you can't sue the company for accessing it, etc.
I can certainly conceive of a digital equivalent of a safety deposit box. It would involve a provider hosting encrypted data that they themselves cannot decrypt or access in unencrypted form. But the services cooperating with PRISM are nothing like that.
Imagine if the bank had the lock to your lock box, and bank employees had access to the contents of your lock box, and bank employees regularly rifled through the contents of your lock box. Also, the bank had no obligations as to your lock box. You couldn't sue the bank if they lost the box, or if someone stole the contents, etc. To me, all that would make the box seem a lot less "private."
The 4th amendment doesn't extend to say the stuff you store in your friend's garage. Google, Facebook, etc, accounts resemble that a lot more than they resemble bank safe deposit boxes.
Also, it is not like a friend's garage; they aren't hosting people's email as a favor. It is more like a rent-a-storage-room place with a peculiar method of paying the rent; there is a business relationship/transaction going on. We trade algorithmic-advertising access to our emails in exchange for them providing hosting.
Let's look at Dropbox for a moment. If the system is working correctly the employees never have access to the contents of your files. The data flows past the employees in a TLS tunnel that only lets the destination server decrypt it. Employees are kept from accessing the contents via a mechanism similar in effectiveness to locks. Should this data be protected? I think it should.
Now let's move on to Email. Most of the time, with modern server configurations, it works in a very similar way. The messages are encrypted in transit, stored in plain text, and employees are kept out. Ignoring that obsolete rule about email 'abandonment' after a certain number of days, I see no reason email shouldn't need a warrant.
It comes down in part to how the data is stored in the first place. Why do you say that my email is 'unprotected'? Are there not locks on it, barriers keeping away employees in the typical case? What makes it less secure than a box with a lock that can be broken with a hammer?
At the end of the struggle, if the people win their rights back, we're just back to where we were supposed to be and there's nothing to stop the gov't from trying again.
It's a battle of bulges. They cross the line in one place, we push them back. They cross again in another place, we push them back again. Without penalties, there's no end to this.
Second, Article IV, Section 4, of the US Constitution states that it is the duty of the Federal Government to protect the states against invasion and domestic violence[2]. Clandestine surveillance programs have long been tools of governments to accomplish such goals; PRISM is just a 21st century version.
Furthermore, the US Government has LOTS of tools at it's disposal that _could_ be used to implement a tyrannical state. But, the beauty of the American system is that we have checks and balances in place to prevent these tools from being abused in a tyrannical manner.
In conclusion, it seems to me that PRISM is a necessary and justified government function. This makes me wonder who exactly is benefiting from the Obama administration receiving so much bad press because it seems that they really are being unjustly crucified (and this is coming from someone who voted against Obama both times).
[1] https://en.wikipedia.org/wiki/PRISM_(surveillance_program), paragraph 4.
[2] https://en.wikisource.org/wiki/Constitution_of_the_United_St...
That's not to say that it's not a fact that PRISM data is only used against a person when there is a warrant, but it is to say that we don't know that that is the case.
Second, no reasonable person with a decent understanding of this issue is claiming that the NSA isn't legally justifying their actions. Indeed, the NSA is using--as expected--national security in part as a motivating legal justification, and invoking Article IV Section 4. It is agreed: national security is their intelligence directive.
Nor are such people claiming that the government hasn't previously used secret surveillance programs, or that the government is necessarily intentionally tyrannical.
What we are saying is that legal justification aside, we want the details of this directive in the public conversation so that We the People can decide if we approve of the actions. We the People are the governors of this country, and We the People have the power to change the laws or the Constitution if we decide that the actions are not justifiable, are not reconcilable with liberty, or if the system of checks and balances have failed to check or balance.
This is a dangerous situation. If Snowden's claims are correct, not only are we being overbearingly surveilled, but that data is dangerously aggregated. Even if we are to assume complete benevolence and complete competence in our government (even government actors who may be under-paid and under-invested in their duties), then there is still a very real possibility that people who would seek destruction could acquire possession of that data, gaining a catastrophic trove of information about not just the American public--who would probably be protected by the overbearing force of the U.S. Military--but also the public of the rest of the world.
In conclusion, it seems to me that we can't know that PRISM or associated programs are necessary and justified government functions, because we know nothing about them. Of the 300,000,000+ people in the United States, 435 are in a position of both knowledge and decision on those policies, and given the importance of this issue that's just not good enough.
Especially when it is undisputed that those 435 people can't do their job even minimally effectively.
Regardless of whether Snowden is correct or not, I think that there are government functions that the general public should not be informed of. Having a policy of detailing the exact nature of PRISM could be just as damaging as, say, having a policy of publicly detailing all planned drone strikes. I bet the NSA's job is already harder because of Snowden's leaks.
I also think that there is a very real possibility that people who would seek destruction could acquire possession of an aircraft carrier's control systems or the control systems of the missile defense shield. Should the US not pursue those tools because of that possibility, too?
The citizenry will have a hard time exercising it's natural rights to participate in debates about national policies in the American Republic if each citizen has to also worry about protecting himself from thieves/bandits/pirates/foreign armies.
There is no functioning missile defense shield, that program was a huge costly boondoggle.
There is next to no chance that terrorists would be able to take over an aircraft carrier or any other significant military target for any significant length of time. They're full of armed soldiers. Can you imagine what would happen if real, actually well funded militaries and spy agencies could do that? You should try not to live in fear of extremely unlikely dangers.
You're pretty conveniently leaving out several important words, and also ignoring the ", and" between the first and second clauses of the amendment.
1) You left out the word "unreasonable" from "search." The 4th amendment doesn't protect against "search of those effects" it protects against "unreasonable" searches thereof.
2) You left out the word "their". The 4th amendment doesn't protect against searches of effects. It protects against searches of your effects. You might reasonably say that a Word document on your hard drive is your effect. It's a little harder to say that a Word document on Google's hard drives is nonetheless your effect. I think it strains the definition of the word "your" to say that Google's records about what you search for, or AT&T's records about who you call are your effects, rather than AT&T's effects, when you didn't generate those records and indeed when those records were never even in your possession.
3) Searches don't necessarily require probable cause. The ", and" separates the two parts of the sentence. Searches must be reasonable, and also for any search that requires a warrant, the warrant must be supported by probable cause.
Lawyers can try to wiggle through the subjective parts in the constitution's language, but the intent seems very clear, given the context. The founders did not want the government violating its citizens privacy except when there was a clear reason to, and then only in limited cases, or in trivial cases of privacy invasion that aren't worth considering. Any violation of that is a violation of the spirit of the amendment, if not strictly the letter of it. The language is very forceful on this, and it's clearly meant to be very inclusive on what is considered protected.
The founders didn't have anything in their world that paralleled telephone conversations or server records, except perhaps letters, which they would consider to be effects. They also didn't have anything to parallel our ability to pull out insights from masses of low-signal data.
When people talk on the phone, they have a reasonable expectation that that call is between them and the other person on the call, with AT&T acting as a dumb pipe between them, doing only as much as necessary to make that service work and count the time and rate for billing purposes. There is also the reasonable expectation that AT&T will do with that data what is necessary to bill you for it, but there is no reasonable expectation that they or the govt. will do deep analysis on it to figure out your social connections, who you like best, your travel patterns, who you might be planning something with, etc.
In talking about intent you're projecting onto the framers a broad conception of "privacy" that they did not have. You can't just ignore the text. If you're arguing something is encompassed by the spirit of the law, there must be some evidence of it in the text. It's not there. The text and the discussion at the time is consistent with a more narrow principle: the sanctity of one's home and person, not some broad overarching principle of privacy that attaches to information even when it's shared with potentially hundreds of third parties (how many engineers at Google have access to your email accounts?)
The framers didn't have phones, but they did have all sorts of stored records. Banking records, ledgers, commercial transaction records, shipping records, etc. You can't just ignore the fact that all these things existed, yet the founders made no mention of protecting information that was routinely and by its nature disclosed to other people.
Those data are seized. Either they are 'mine' or they are 'Google's' but they certainly are not 'public'. In any of both cases, it is unreasonable to seizure them (even if what you get is just a copy) arbitrarily.
"It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment."[2]
Again, no one is saying that the government isn't claiming legal authority. But what you--we--need to understand and accept is that no matter what actions the government takes, they will always claim legal authority. If they were to take unconstitutional or otherwise illegal actions against U.S. citizens--even with benevolent intent (e.g. protection and safety)--they must claim the legal authority to do so. The problem at hand is that neither the actions taken nor the legal justification of those actions are known to the general public and thus we have absolutely no avenue to check the government and ensure that their claims of legal authority are accurate.
It's important to now note that by definition there is no enemy of any nation which presents a greater threat to the sovereignty of that nation than a corruption of that sovereignty itself--be it political corruption, abuse, or tyranny. Therefore, it is an a priori requirement to national security for the public to know that the actions and justifications of the government are legal--and that the public views their legality as justified.
And this can and should be done without releasing specific details which would result in an unreasonable threat to national security. We're not talking about releasing the source code here; we're talking about proving to the public that they approve of the both the actions and the justification of those actions. It may be inconvenient to be restrained by the constitution, but violation of it--even if only in spirit--is tyranny as the founders defined it.
Finally, as an aside to your point about aircraft carriers and missile defense shields, those examples are neither questionably unconstitutional nor are they equivalent. If a aircraft carrier or a missile defense shield become compromised, there will be destruction; but manageable, well-defined, destruction. We can measure and contain that sort of destruction. It's impossible to imagine or measure the amount of destruction caused by the release of in-depth intelligence data of many, most, or all citizens of the world.
In other words, I have right that my things are not subject of unreasonable search (and fishing expedition searching for patterns seems unreasonable - why do they think I might be a terrorist or connected with terrorists?). I don't care whether it will used against me or not but my right is that gov does not do that without warrant.
However, the Supreme Court has clarified these issues in a number of decisions, which is why our law is primarily based on judicial precedent, and not literal interpretation.
That may or not be a good thing, but it's the way our legal system is in fact designed to work.
So as first step I want to hear from Supreme Court whether this is constitutional. But NSA says that what they are doing is secret, so ...
https://www.eff.org/deeplinks/2013/06/director-national-inte...
information is considered to be “collected” only after it has been
“received for use by an employee of a DoD intelligence component”
http://www.guardian.co.uk/world/2013/jul/02/james-clapper-se...
So I would say we need to have an open debate about exactly what they're doing, and have the Supreme Court, whose job it is, define what those terms mean and what they can do, instead of letting them make it up as they go along, and then lie about it.
Are you sure about this assumption? That no brute force, human rights violation, wrong doings have been committed both inside and outside of US?
Would you please explain your reasoning more? I hope we understand that the American system has worked even without PRISM for as long as I have known and read about American history. And quite efficiently at that. So why is Dragnet needed so much now?
> Furthermore, the US Government has LOTS of tools at it's disposal that _could_ be used to implement a tyrannical state.
Let's say such a tyrannical state is inevitably implemented one day.
1. I am curious to understand how you would logically conclude and arrive (I mean agree to agree) at evaluating a _tyrannical_presence_ = true;
2. What checks and balances you indicate are going to be mechanisms at disposal with people to get rid of such a tyranny?
From what it seems none of your arguments are true at the moment.
Most of the case law that has shaped this area of jurisprudence involves obvious criminals, mainly those who would be prosecuted for illegal drug possession. One could read all those cases, say, while in law school, and think "Why do we need to be so careful to observe the protections of 4th Amendment? Aren't we just protecting drug dealers and other criminals? Aren't we just making the job of the police more difficult?" But one could also conclude that it is the Constitutional principles we are exercising such caution to protect, not the obvious criminals who sometimes might escape prosecution as a result of forcing police to "follow the rules".
In the context of modern telephone and internet surveillence (which in the coming decade or two will become one in the same, when AT&T is fully transitioned to TCP/IP), one might reason that there's little need to observe the 4th Amendment as it only protects criminals, would-be criminals or citizens with "something to hide". The net is widening.
Instead of the undesirable side effect of having guilty parties (e.g. drug dealers) get away because of the hassle to police of following the rules so as not to collect inadmissible evidence, it seems like we are headed for a different sort of undesired side effect. When all evidence is by default "lawfully" collected (because it's so easy to collect it and people have over time assented to this by failing to object to it): innocent parties are likely to get swept up in what will become a massive dragnet.
Well. You don't. And that's the horrifying reality we are waking up to. The data gathering and political targeting by groups such as NSA and IRS are more than likely the tip of a really ugly iceberg.
I think the fundamental lesson here is to remain engaged and, as citizens, make sure that government always sees us as their masters and not their property.
Restore balance to the force we must.
On the corner of hitler road and stalin street.