In Secret, Court Vastly Broadens Powers of N.S.A. | Hacker News Reader

In Secret, Court Vastly Broadens Powers of N.S.A.

nytimes.com

329 pointsbcn101 comments

Here's a zinger:

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

A pond of circular reasoning, built on sandy foundations of quid pro quo and legal memos hidden from the sunlight of day it seems.

And of course it is only fitting that access to the information collected is all for sale to the Carlyle Groups of the world and their portfolio companies like BAH.

drivebyacct2: your last few posts are dead. No idea what could have happened; you've been here a while and have twice the karma I do.

I believe that there is an automatic profanity filter.

"Fishing" being the operative word. I'd love to understand the internal reasoning these judges have embraced to allow this to happen (as the court is the last defender of the constitution), but I fear it's little more than unchecked power/stupidity.

What 11 judges nominated by Roberts, 10 of them appointed by Republican presidents, and anyone thinks they'll tell DoD no? Surely you jest. They're not a rubber stamp. They're cheerleaders.

"IM conversations aren't like mailed letters- when they're received, they disappear forever. So it's vitally important that we gather all the information that we can before it disappears, so that we can later use it in intelligence efforts"

That's probably the start of how I'd sell it. Exploit the judges (probable) lack of technical understanding, prioritise the urgency involved. Ta-da!

I'm curious to see how this fits with the coming leak that the NSA is collecting and storing all cell phone call contents (not just metadata) [1].

[1] http://www.huffingtonpost.com/2013/06/29/glenn-greenwald-nsa... - read: "it means they're storing every call and have the capability to listen to them at any time"

What do you mean by "how this fits"?

From the parent comment:

>The judges have concluded that the mere collection of enormous volumes of “metadata” ... does not violate the Fourth Amendment.

Like I said, they're collecting much more than metadata. Therefore, fits with that statement, reality does not.

I'm going to take that article with a pinch of salt until Greenwald shows the evidence. It's entirely possible that a phone tapping technology + the vast new NSA data centre = "the ability to tap a billion calls a day". How many do they actually tap is the operative question here.

The original leaks were compromised by a lack of technical understanding stemming from the presentation slides we all saw, so I'll wait and see what he is basing this claim on first.

It is reasonable to say "why would they build the capacity if they don't intend to use it?" In fact it is reasonable enough given the cost that the onus of "they won't use it to it's fullest" is a claim you have to defend with evidence.

Maybe they are planning 100 years in advance. Point is, evidence please.

This counter "argument" doesn't pass the laugh test. Building capacity for more than a few years in computer equipment just doesn't make sense. You need to provide evidence for your claim that they are reasonable, and not abusing the power. The evidence exists to conclude the expanded spying program. There is literally 0 evidence for your claims that the extent is not abusive. Therefore you instead must provide evidence for your unbelievable claim.

I would have thought that your "laugh test" would help you realise that I wasn't being serious- the fact that started with "maybe" should also have indicated that I wasn't making a strong suggestion.

The point is, if there is evidence then Greenwald should release it, rather than let us infer meaning from his (previously proven to be technically inaccurate) statements.

There is literally 0 evidence for your claims that the extent is not abusive. Therefore you instead must provide evidence for your unbelievable claim.

No. You are asking me to prove a negative, which is not possible. What I am asking for is proof that it is abusive, something easily provable, especially if you have evidence to hand already.

Well, the interesting thing about this justification for storing metadata is that if you accept it, there's absolutely no reason it shouldn't apply to contents too. If you're allowed to store data indefinitely because only access to the data should be controlled, and you trust politicians and intelligence services not to abuse that power, why not do the same with all data? If you have control over access and the data will only be used in approved ways, why not just store everything and decide later what you can access?

Metadata is just as dangerous as content, and frankly I think the only reason content hasn't been stored is that it is a difficult technical challenge, and they don't yet have the capacity. Indeed, we've seen proof that the UK is already doing this for as much data as they can manage, without the permission of any of the US citizens whose data they collect wholesale in transit and send back to the NSA.

The massive danger here, which Snowden pointed out, is that if you store this information, policies can easily change in future to allow access (as they have done already with metadata), and at that point nothing can be done, because the information is already available, just waiting to be used, and going back decades. By allowing collection, you're trusting not just the current politicians, but every conceivable politician and intelligence agency over the next few decades or centuries, and all the foreign intelligence agencies and politicians that the information is shared with. These policies are of course secret, so we'd have no idea if they have changed or what they have started to use.

You also have an exponential growth of classified information which you have to try to keep protected, even as you expand the number of people managing it into the hundreds of thousands to deal with the ever-increasing technical demands of storing and cataloguing it. That's going to lead to leaks to the public and also to foreign agencies, and if the ambition is to store all signals eventually we'd get to a point where no-one has any privacy as it is impossible to keep a store of that size secret and contained.

The only answer I personally find acceptable and practical is to forbid storage of the information in the first place, restrict spying to clearly defined targets with proper judicial oversight of individual cases, and limit the time it is stored.

David Simon, creator of The Wire, has written extensively about this starting with this post: http://davidsimon.com/we-are-shocked-shocked/

It is well worth a read for an extremely well argued, and informed, opinion from the other side.

It's worth noting that this article by David Simon was written on June 7th, purely in reaction to the leaked information about Verizon metadata being collected. As more information about PRISM became available, Simon acknowledge that the leaks did point to something more serious than he had acknowledged in his original post [1].

With that context in mind, I still think it's worth reading Simon's original post that you linked to. He's a very articulate writer who has clearly shown he's no puppet of the establishment through his work on shows like The Wire.

[1]http://davidsimon.com/nsa-and-fisa-commentary-calling-it/

His basic point seems to be that the government should be allowed to do it as long as we don't hear about any specific abuses. There are two problems. The first is the one he points out: when everything is classified and anyone who notifies the public is subject to the treatment given to Manning and Snowden, even finding out about the abuses much less holding those responsible accountable is extraordinarily difficult. The second problem is that the really bad abuses of an accumulation of power like this are so bad that we can't just wait until they happen before we do anything about it.

He also says some questionable stuff. Like this:

>We asked for this. We did so because we measured the reach and possible overreach of law enforcement against the risks of terrorism and made a conscious choice.

Everyone in Congress who read the Patriot Act before voting on it voted against it. So no, we didn't. We had a gut reaction to a tragedy, somebody pulled a defense contractor wish list out of a drawer and they passed it in a moment of sorrow and anger. The country is only now starting to reach the point that we can have a rational conversation about anti-terrorism without the pain of a recent tragedy allowing self-interested warmongers to goad us into an overreaction, and it's time that we seriously reevaluate what we allow the government to do on our behalf.

And I'm reminded of what John Oliver said hosting the Daily Show when all of this came out: "I think you're misunderstanding the perceived problem here, Mr. President. No one is saying you broke any laws. We're just saying it's a little bit weird that you didn't have to."

In fairness, I don't think that's Simon's point. I think his point is, the government should be allowed to do things like they did on 'The Wire' as long as there is due process, i.e. independent oversight, transparent criteria, ability to change the criteria through a democratic process. And yeah, we did ask for it because we knew about AT&T secret rooms and there was no outrage. Until we demand public hearings about exactly what is going on and what constitutes due process we're still asking for it.

I mean, seriously, what percentage of people watched '24' and 'Homeland', and thought, OMG that is so unconstitutional.

Everybody believed that is actually what the intelligence services do, and applauded.

There are also a number of extenuating differences between his Baltimore example and PRISM, the most critical being that the recording of data in Baltimore was limited both in time and scope by the case it was being collected for. Presumably once the investigators either caught the culprit or gave up on doing so, the payphone taps were removed. They also were only allowed to tap phones they thought might be relevant to that particular investigation. The war on terrorism used to justify mass wiretapping, on the other hand, will literally go on forever and relevant data could be anywhere. Terrorism is not an enemy that can plausibly be captured or defeated (like a drug dealer or the Nazis), nor is it localized to a few city blocks or ISPs or websites, therefore there is no limit on how long this data will need to be collected for or what sort of data might be required.

I'm all for brief and limited surveillance authorized by warrants tied to a specific case (e.g. his Baltimore example), what I find unacceptable about PRISM is exactly the thing Simon glosses over as irrelevant, its scale: virtually unlimited in both duration and scope.

I also disagree with his premise that the data is too big for innocents to be caught in a dragnet. Has he never seen a heat map or a histogram? There are ways to characterize big data that can lead to false positives in the analysis.

Additionally, an easy abuse of the system would be to look for people doing embarrassing things and link it to those people for later political blackmail or other neutralization. We don't have evidence that this has occurred, but I think it was indicated that the audit trails and other civil liberties protections were not implemented well in these systems.

"A common misconception is that an analyst must review the content of communications between people in order to establish a link between them. In fact, an NSA analyst would regard a person's association and the persistence of that association with other persons as being of greater relevance to a determination of whether the person is a member of a Community of Interest than the actual words used in a series of communcations." - J. Kirk Wiebe, former NSA employee in his sworn Declaration in Jewel v. NSA, September 28, 2012 https://www.eff.org/sites/default/files/filenode/wiebedeclar...

I think people fail to realise that the "metadata" would actually be the "damning evidence" that innocent citizens should fear, not the content of their communications. It's like a nationwide pen register. But no one needs to be identified as a suspect (that deserves to have her call records inspected). Everyone is a suspect, by default. They have all call records for every American. Crazy.

reasons = ['I\'m hungry', 'boss is hungry', 'wife is hungry']

The people at the analyst level making these decisions are suffering under the strain of increasing economic disparity just as much as you and I. And if fishing returns the occasional fish, that will relieve their distress, however temporarily.

Reason? Yeah, that's the power of the bogey man word "terror". So, no matter what, the government have that as a get out of jail free card. What ever the situation, they will always cite "terror" as an excuse for every and any excess.

That jumped out at me as well. I think the most amazing thing is how arbitrary this all is. The court tries to make it appear is if they have 'guiding principles', but it strikes me much more as 'patterns that appear to hold in retrospect while we make this up as we go'.

There can be no "consent of the governed" when "We the People" are unaware of the actions which our elected, as well as non-elected, representatives perpetrate in Our name.

___Edit__

Yes, "unaware," as in "We the People" are perpetually "unaware" of what goes on in secret court proceedings.

Unaware? Mass surveillance has been going on for a long time, and everybody who cared to learn knew the immense scope. This is not a news revelation, it is a media campaign by parties who need something to talk about.

Consent of the governed is the problem. The U.S. Senate is directly elected, and the public paranoia wanted these broad pseudo-security measures.

Speaking of consent of the governed, why is the media saturated by Snowden-as-Bieber celebrity stories, and not election rigging by the IRS? Would you like to learn more?

why is the media saturated by Snowden-as-Bieber celebrity stories, and not election rigging by the IRS?

Let me guess, did your group's 501(c)(4) paperwork get held up by a few weeks?

It was months or years in some cases, and there's also evidence the IRS leaked private donor lists and audited donors.

There's no evidence of 'rigged elections' though.

U.S. political campaigns are conducted largely via tax-free contributions. Banning 1/3 of the advertisements and rallies most certainly is rigging an election.

There has never been any dearth of Tea Party content since it began. The media has been inundated with their point of view since the last presidential election. Money pours into their PACS. Nobody's stopped any TP group from running ads or rallies. Fox News is practically a Tea Party shill.

To suggest that somehow the Tea Party voice has been silenced or that their point of view hasn't been firmly established in American political consciousness is just absurd. They fail to gain traction because of the extremist nature of their views, not because the establishment is "keeping them down."

Winning elections is about getting out the vote, which is mostly a matter of money. PR firms and canvassers do not come cheap. When the IRS takes a third of your money, you lose a lot of votes.

Who could forget the calm, thorough, logical debate about liberty vs. security that took place in the media and congress, when these programs were passed?

^ says the guy who works for ICx Nomadics, a Homeland Security contractor.

http://investing.businessweek.com/research/stocks/private/sn...

Worked. When I was there I had the good fortune to mostly work on useful products, like non-fraudulent bomb detectors. (Mind you, I would cheerfully work on surveillance products.)

Just because it isn't totally new, doesn't make it a non-issue.

Blaming things on a stupid electorate just sounds like more justification of a totalitarian regime. Could it be possible that people need more information about what is going on in order to make better decisions? Let's err on the side of democracy please.

Half of Americans have an IQ under 100. Give them a sound bite about yellow cake uranium and they will line up to kill them some sandniggers. This is not an insult, just an experimental observation.

I would like to see government run something like grand juries. Randomly conscript a commission of intelligent, well-educated people to study some issue, and let them make policy. A non-democratic government need not be totalitarian.

Until those committees start selecting the committees.

Indeed. The committee selection lotteries should be very public and the guardians conscripted from the whole population.

So the people asked for something to be done without their knowledge? Uhhh.

why is the media saturated by Snowden-as-Bieber celebrity stories, and not election rigging by the IRS?

Why is it not saturated with mugshots of the people dying of starvation and thirst every minute? And why are the stories that matter, when they do get discussed, trolled with that argument? With that tool for tools, all you need is more than one issue that matters, and you can constantly bounce back and forth like a real champ.

Oh hell, this again? No you did not know. We did not know. We suspected. Only now, do any of us, not on the inside know.

Besides, if we accepted your argument, then replacing the word "surveillance" with the word "slavery" and we'd still have slaves.

I dont know if its just me, but public ignorance or consent is not an excuse not to behave well, or do the right thing. Sometimes, often even, the majority are simply wrong.

> In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

This is political kabuki designed to make us think we have a representative government. We don't. We have an oligarchy composed of financial/industrial/military interests (as all oligarchies are) that runs the intelligence agencies of the government it owns.

The fact of the matter is that the NSA has always considered itself exempt from the law and the Constitution:

> "NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency."

> According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes."

> http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...

Excellent reporting by Eric Lichtblau based on "current and former officials familiar with the court’s classified decisions". One key point:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

Funny, I must have missed the part of the Fourth Amendment that carves out an exception for "special needs" or "overriding public danger." Hm, let's see:

"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."

Nope, I still don't see it.

> Nope, I still don't see it.

Your problem is understandable! An ordinary citizen can't be expected to "see it"!

Seeing it takes special qualifications, years and years of experience, especially at the highest levels of government, many deep, secret arguments and considerations, etc. Only such very, very special people can be expected to "see it". In particular, those very, very special people can read the same words in the Fourth Amendment you and I can read but, unlike you and I, know that they, such very, very special people, are understanding the true meaning of those words, true meaning, I'm sorry to say, no insult intended, is just beyond ordinary people such as you and I.

But now aren't you glad that our country, your privacy, and the Fourth Amendment are being so well cared for by such very, very special people, people who can understand things, e.g., the true meaning of the Fourth Amendment, you and I can never "see"?

Uh, oops, where did it put that extra airline barf bag???

What is the point of a constitution if any judge/lawmaker can create loopholes around its most crucial articles in complete secrecy?

What is the point of a judiciary system that uses secrecy so easily while at the same time putting common people behind bars for perjury?

How can people think they are free when they can be subjected to "laws" they never heard about at any time?

To be honest, I'm not a citizen of the USA so I shouldn't care. But all that is increasingly appearing to be the norm around the world and it's becoming extremely worrying.

When a country abuses their own rules, the heads of state must be tried in an international (criminal) court. But no non-lawyer knows how to do it, so it never gets done.

You're right about it being the norm. The only way to stop it is to sue them. it's literally the only thing they understand.

There a lot of competition for seats in the US House and Senate.

So, basically one thing we are waiting for in the US is House and Senate candidates who want to make speeches strongly in favor of restoring the First and Fourth Amendments.

It would be good news if the present members of the House and Senate would come out strongly for the Constitution.

So, why not? Candidate reasons:

(1) Currently the Dems have the White House and the Senate so don't want to appear to claim that the situation is rotten.

(2) Everyone in office is afraid of being accused of being "soft on terrorism". And if a politician gives a speech saying we should restore the full meaning of the First and Fourth Amendments and another loser, wacko, Jihader Boston bomber kills/or injures some people, then the politician's political opponents will scream "soft on terrorism".

(3) While some people are quite concerned about the NSA and Congress with the Patriot Act, etc. trashing the Constitution, likely and apparently so far not enough people are raising hell.

(4) Somehow the political dynamics in the US are strongly toward: Once the US takes some step for national security, reversing that step is very difficult.

A big example was Viet Nam: There the US went on and on and on spending more and more and more and right along, really, doing less well, for a very long time.

How long? In the late 1940s, the US supported the return of the French. When the French lost in, whenever, 1954, the US tried to prop up a 'US friendly' Saigon. By Kennedy's term starting in 1961, as Saigon started to lose, Kennedy said some of the right things:

https://www.mtholyoke.edu/acad/intrel/kentv.htm

"I don't think that unless a greater effort is made by the Government to win popular support that the war can be won out there. In the final analysis, it is their war. They are the ones who have to win it or lose it. We can help them, we can give them equipment, we can send our men out there as advisers, but they have to win it -- the people of Viet-Nam -- against the Communists. We are prepared to continue to assist them, but I don't think that the war can be won unless the people support the effort, and, in my opinion, in the last 2 months the Government has gotten out of touch with the people."

During his campaign, LBJ also said some of the right things:

http://www.pbs.org/wgbh/amex/honor/timeline/

"We are not about to send American boys nine or ten thousand miles away from home to do what Asian boys ought to be doing for themselves."

Then, once in office, LBJ wanted to win a "coon skin cap" and added and added.

Then Nixon wanted only to 'win' -- I know, "Peace with honor".

From about 1961 on, a growing fraction of the US voters were very much against the war and wanted, really, just, to, in a single word, leave. In two words, leave immediately. McGovern ran on that, and lost badly.

The US demonstrations got bigger and stronger. The 1968 Dem convention in Chicago was a small war in the streets. There were many marches on DC. "Hay, hay, LBJ how many kids have you killed today?".

Still the White House and Congress wanted to "stay the course". As we were actually losing and people were hanging off the last helicopters out of Saigon, President Ford still wanted to send more money.

Gotta tell you, next to no one in Congress or the White House wanted out of Viet Nam. How'd we get out? The requests for much more in blood and treasure did fail in Congress. Then the North Vietnamese basically took South Viet Nam and Saigon and drove us out.

Then, for the "war against terror", the other side has no hope of driving out the US like the North Vietnamese did.

Viet Nam was the big example we were never to repeat, but we did. It didn't take much: A few wacko Jihaders hijacked four airplanes, and the US went all wacko: We ruined our airline system, trashed the Constitution with the Patriot Act, etc., occupied Iraq and Afghanistan, and stayed for well over 10 years.

Gulf War I was an exception: There we remembered Viet Nam and the fairly simple and obvious lessons and applied them. So, we asked what's the goal; can we achieve it; how do we achieve it; how do we get out?

Goal: Drive Saddam out of Kuwait. How to achieve it: Have the Saudis give the US space for some airfields. For a few weeks, run one heck of an air campaign against the Iraqi forces. During that time, build up some ground forces. Then, release the ground forces into the Iraqi desert west of Kuwait for a big left hook, cut off Iraqi access to Kuwait, and kill off the caught Iraqis, all in just 100 hours. Invite the Iraqi military leaders to a tent, make them an offer they can't refuse, have them sign, and then mostly just leave. It worked as planned.

With that success, for Gulf War II it was back to Viet Nam style many years of badly conceived mud wrestling. Similarly in Afghanistan.

Net, again, once the US decides to pursue some such a national security effort, we go for years and years pursuing nonsense goals, being silly and ineffective, and just will not see, say, and act on the obvious -- leave.

More generally, the US wants to police the world. When the world doesn't look nice enough to justify the police effort, the response is more time, blood, and treasure for more policing believing that less police work would yield a disaster.

Alas, we ignore the lesson of Viet Nam: We couldn't have lost any worse than we did, both militarily (at the level at which we fought the war) or politically. Politically? We never could find anyone who could run the South from Saigon. So, with that big loss, what's happened? Did the world collapse? Did dominoes fall from SE Asia, east, all the way across the Pacific and land in Malibu? Did Thailand, Burma, Indonesia, Australia, Singapore, the Philippines, Taiwan, Guam, etc. fall? Did Peking and/or Moscow dominate SE Asia? Heck no. Instead now Viet Nam is doing well making, e.g., Brother laser printers. The US should be totally thrilled with Viet Nam. Likely and apparently the US could have had that outcome in 1947, 1954, ....

Bluntly, the US military and State Department, etc. just do not know how to do nation building. E.g., in Saigon we didn't know how to pick an effective leader. Apparently the situation is the same in Kabul. One reason is domestic US politics: So, if the nation building doesn't try to make the place look like Peoria, or some TV sitcom (Green Acres), then US politics gets all fired up. E.g., the US goes into a very traditional Muslim country and, for domestic US feminist politics, tries to educate the girls and have sexual equality, all of which is in wild conflict with social mores going back a few hundred years. We want them to have a constitution, a parliament, free elections, modern laws, a judicial system, roads, bridges, schools, hospitals, etc. Meanwhile the US loses out to some indigenous leaders who promise no such things. They have a way of doing things over there. That's not the US way, and we don't like it. But, we are total fools if we believe we can change their ways to being like our ways and more foolish if we believe that they will like our efforts at doing so.

Instead, if we are to work in such a country, then we need to accept, understand, and work with their ways of doing things. And, yes, that might mean that don't send the girls to school. And it might mean that structures of power and leadership selected by means not close to free elections.

Whatever, the US needs to make its policing efforts fast and effective and then leave.

Politicians need to speak something closer to the truth to the US voters and not promise to pursue foreign adventures to create shining cities on hilltops.

Until the US starts to look at reality and become effective, the US will continue to waste time, treasure, blood, the US Constitution, domestic tranquility, etc. In simple terms, on foreign adventures, the US needs to give it a rest, f'get about it, back off, cool down, relax, and then, something like it did after Viet Nam, rethink.

For defending the US, do that both more effectively and mostly closer to home and without nation building.

I'm not soft on terror or US foreign enemies: For Afghanistan, I would have leveled large areas of the place, all from the air, until the Taliban desperately called for peace at any price. But I wouldn't set foot in the place. Similarly for Saddam -- make him an offer he couldn't refuse, with B-2 bombers circling overhead just for practice, but again not set foot in the place. I wouldn't give them schools; I wouldn't give them so much as a short pencil. Then I'd leave.

The need is to defend the US. There's no need to trash the US Constitution.

Millions of US voters need to tell the politicians in clear terms to stop the brain-dead nonsense of wasting US time, treasure, blood, domestic tranquility, the domestic economy, and the US Constitution, wise up, and become effective.

The fourth amendment also doesn't have an exclusionary rule in its text

IE no part of it says if the police conduct an illegal search, they can't use that evidence against you.

Yet most people seem to get up in arms when Scalia/Thomas/whoever says that line of cases should be overruled, and that it's up to congress to pass laws to deal with police conduct

The rule existed in traditional English Common law from long before the U.S. declared Independence.

Being that the Fourth Amendment itself was a reaction against General Warrants and Writs of Assistance, it's hard to imagine the founders would have wanted even less protection here than English law already provided

http://en.wikipedia.org/wiki/Exclusionary_rule#History_of_th...

This is a great policy and common law argument. But, much like the parent comment, can you point where in the text of the 4th amendment (or the constitution) where it says anything about an exclusionary rule?

Because if we are going to argue policy and common law, than we also have restrictions that don't appear in the text, but appeared in common law, as well.

The Ninth amendment states that the Bill of Rights is not intended to be exhaustive enumeration of liberty.

There is no danger in erring on the side of too much liberty. Parent errs on side of denying of liberty already clearly enumerated.

Sure. I think we are mostly in violent agreement. I'm actually not trying to argue that it's not a violation of the fourth amendment (i strongly believe it is). I'm arguing that the literal text of the fourth amendment alone is not, by itself, a great explanation of what it really means in today's world. The reply I original made was to the argument that because 'overriding public danger' doesn't appear in the literal text of the 4th amendment, there can be no such exception.

As we've both gone through, the 4th amendment can't be viewed in a vacuum, or else it would be nonsensical.

So saying "i don't see where the literal text of the 4th amendment says that" doesn't seem to me a complete and total argument.

For example, it literally says nothing about anything but papers, persons, houses, and effects. None of this explicitly covers phone calls, or even e-mail. You have to argue by analogy or inclusion in today's equivalent of papers or effects

It also only prevents unreasonable searches and seizures, and there is an argument to be made that "special needs" or "overriding public danger" make the searches not unreasonable. I don't personally buy it, but ...

As you mention, there is also historical context on all sides to consider.

That is in fact, exactly my point. Saying "it ain't in the text" is even far past what textualism adherents do, and i'd venture to guess, would not make for a very useful statute construction philosophy.

Can you explain what you think the drafters were thinking about when they added a prohibition against unreasonable searches and seizures? If the police can use evidence gained from unreasonable searches and seizures, why would anyone care about prohibiting them? If the government (say government based overseas to which your colnies owe allegiance) can "take your stuff" and convert it for their own ends (or perhaps destroy it), what good will a prohibition on "unreasonable searches and seizures" do you? After they've got your stuff and can use it however they wish (or destroy it), it's too late. The damage is done. The fact the search and seizure was unreasonable does you little good.

Is it the searches and seizures themselves that were undesired by the drafters? Or does it have something to do with what's taken and what happens to it afterwards?

I don't know what Supreme Court you've been watching, but it's not the modern US Supreme Court, which has made in unmistakably clear that the only time they'll apply it is when there is no colorable argument that the cops didn't know they were engaged in a fourth amendment violation. There is no effective exclusionary rule in the US anymore, it might as well not even exist.

Breaking rules has consequences. The 4th Amendment is a rule that says the government cannot conduct illegal searches. It should follow, then, that the consequences of a 4th Amendment violation include the inadmissibility of any evidence the violating search was used to gather. Otherwise it's not a rule.

Is this an interpretation of the word "unreasonable"? You're only protected against unreasonable searches and seizures, but if they deem collecting this data to be 'reasonable' then it wouldn't apply, if I'm reading it right. That said, I don't know much about the constitution (I'm from England, pip pip).

> Is this an interpretation of the word "unreasonable"?

Probably, but it's not a reasonable one :-)

Here are just a few reasons why:

http://www.salon.com/2013/06/17/were_all_terrorist_suspects_... http://www.salon.com/2013/04/02/what_do_drug_sniffing_dogs_h...

It's obscene. Skinner (the railway case) and its brethren are concerned with either employees in certain sensitive jobs, and school children participating voluntary activities. Some of them go too far, in my opinion, but none can be read as justification for this kind of blanket operation covering the entire populace.

But this isn't news. It's apparently been public knowledge since 2009, when the redacted Yahoo! ruling was released http://www.nytimes.com/2013/06/14/technology/secret-court-ru... . That ruling (even the redacted version which was relased) clearly lays out and upholds the concept of the "special needs"-based foreign-intelligence exception to the US' Fourth Amendment:

2 . The Foreign Intelligence Exception . The recurrent theme permeating the petitioner's arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment's Warrant Clause. 6 The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement.

This ruling isn't secret, it's just been hiding in plain sight. Even after the NYT reported the Yahoo! connection to the verdict in an article which directly linked the ruling PDF, it was still apparently impossible to get people to read the ruling and see what it says about the Fourth Amendment for themselves. https://news.ycombinator.com/item?id=5923606

Secret courts, secret laws, secret prisons - what's your conclusion? Mine is: this is a secret dictatorship.

Well, if not quite yet, then with, say, another president like Nixon ....

Sorry 'bout that, but my conclusion was that, yes, he was a "crook".

Judging from the tapes he spent more time trying to destroy his political enemies than actually governing.

Yup.

We are open about our secrecy.

"It is transparent, that’s why we set up the FISA court." - Barack Obama

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings." -- John F. Kennedy

Imagine you work at the NSA. Your boss comes through the door and says, "Hey, we just got approval to store the communications of everyone everywhere. We need the be able to cite credible suspicion before we can look at Americans' communications, though. What can you do for me?"

"Wait, we can intercept and store all the communications?"

"Yep, all of them."

"Because they might include ones that present a threat?"

"Yeah, that's it."

"OK. Well, what if we could narrow it down? What if we implemented a system to only scrutinize communications we thought were likely to be threats. That would be better, right?"

"Where are you going with this?"

"Well, we're already collecting everything, right? What if we went just a teensy bit further? What if we just added a step where we did semantic analysis of everything we collect? That way, we'd narrow down the stuff we were actually, you know, looking at to stuff we were already pretty sure was important."

"That's a GREAT idea!"

"Wait, I'm not finished. We could narrow it down even more if we maintained a graph of communications between everyone we know about. We want to affect the minimum number of people possible, right?"

"Well, we're worried about lone wolves too..."

"That's fine. We can get business records through the PATRIOT Act. We can make this a really fine-grained test. We can look for suspicious purchase patterns, medical conditions, attempts to avoid detection, you name it. What could possibly go wrong?"

The FISA courts need to be dissolved, and replaced with something that is visible to the public.

Why don't they get it over with and declare martial law? They clearly have decided they can do WTF-ever they want, by declaration.

They might already have done so - in secret!

In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.

The court’s use of that language has allowed intelligence officials to get wider access to data and communication...

That is really, really scary when you include the fact that the term "weapon of mass destruction" has been so watered down as to now include even a freakin potato gun.

http://www.pri.org/stories/politics-society/government/expan...

I do certification of high risk industrial installations for a living, and this story reminded me of one I heard about the Japanese Fukushima disaster.

One of the guys who does certification over there did some digging and found out that they had 3 sets of operating procedures for the plant: the independently reviewed and certified ones which would provide a high level of safe operation; the ones they didn't show anyone which was how they supposedly operated the plant day to day (cutting corners); and then the way they actually operated the plant, which was even less safe.

When I read stories about the FISA, they sound shocking, but they also sound a lot like Fukushima's 'second level' operating procedures. Bad, and an obvious sideshow, but not even close to what's really going on behind closed doors at the NSA.

"...the first Galactic Empire, for Peace and Security!"

"So this is how liberty dies, with thunderous applause!"

> the court is creating a significant body of law without hearing from anyone outside the government

Legal precedents created by non-adversarial proceedings in a secret court are nothing less than terrifying.

Somehow I don't think the FISA court is fixing the problems it was created to fix. It seems to have been co-opted.

Hopefully, in something less than a decade, one of our legislators can find time in his busy money-raising schedule to discover how that happened. And then start a task-force to make meaningful recommendations.

In our country all laws have to be published in the "Staatsblad" (State-released paper/documents containing new businesses, laws, ...) So unless a law to allow secret laws was made we shouldn't have secret laws.

So that got me thinking, try outlawing secret laws ?

A government that demands secret courts can not call itself democratic. It is the antithesis.

The motivation here is security through obscurity, right?

Partly it's security theater.

I don't think it's arguable that collecting every piece of data on every citizen could be a benefit to national security. It's just the associated cost to privacy that makes it utterly horrendous.

Maybe Stalin, Hitler, Himmler, J. E. Hoover, the Stasi, etc. would all agree that having all the data would help them build a surveillance state they would like.

Still, no matter who does/doesn't not like having all that data collected, for the Federal Government to be able to demand that data strikes me as a gross violation of the Fourth Amendment.

Legal cases are being brought; maybe a case will make it to the SCOTUS; and maybe the SCOTUS will strike down as unconstitutional the laws that enabled such data collection.

I can't find anywhere in the Constitution how nice would be to have a Stasi surveillance state and have to conclude that the US founding fathers did not desire such a thing.

Anytime a clear majority of active voters want to have this situation turned around, around it will come, quickly.

No. Motivation is simple as before - thirst for power.

Unfortunately they do not need scrutiny from the public, these judges (supposedly) are experts in constitutional law and the public (according to law) does not have any say in it.

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