The NSA's Surveillance Is Unconstitutional
online.wsj.com
online.wsj.com
Presuming for a moment that all the information collected by NSA is, in fact, public information, it seems to me that the primary problem isn't collection but asymmetric access and hence power differential between the state and those governed. Why should the government have exclusive access to this information while the general public doesn't? If this treasure trove of personal connection graphs, cell phone discussions, location information, is all truly public and not subject to a judge issued targeted warrant, then, why shouldn't this public information be available to any member of the public?
This new information could be a boon for Democracy and completely change how we understand and interact with Government. Why shouldn't technology impact how we organize our society? Politicians and civil servants, who have the consent of the governed, take an oath to uphold the constitution and put the interest of the people above their own. If the general public should be tracked to such precision, at the very least, why shouldn't interactions in the public affairs of our elected and appointed and contracted officials, done on our behalf, be subject to the same level of scrutiny?
I for one plan on making a ton of noise until that happens.
I'm not trying to be a negative nancy, nor saying stop making noise, just that it's been going on for 12+ years (if not longer) and the powers that could stop it can hardly tie their shoes without an argument on how to tie them correctly. Hopefully more people will wise up to the blatant disregard for the law and demand further action.
> I'm not trying to be a negative nancy, nor saying stop making noise, just that it's been going on for 12+ years (if not longer) and the powers that could stop it can hardly tie their shoes without an argument on how to tie them correctly.
The length of time that something has gone on does not change the fact that it is fundamentally wrong. The only difference is that I am now, 12+ years later, more disgruntled than I was back when it started. I feel like some people use the fact that this has been ongoing as some way to say "Oh, this isn't as big a deal as you're making it out to be." No, screw you.
Also, we as a population have to stop with the "it's never going to change, why bother?" mentality and get involved. It's definitely never going to change if we continue to be so apathetic as a group.
This is how I feel every time I hear someone make excuses for things like this. It's less "screw you, I hate you" and more "screw you, wake the hell up".
Otherwise the wag who penned Government Builds Free Cloud-Based Backup for an Ungrateful Nation (https://news.ycombinator.com/item?id=6012941) sort of addresses your other points.
I'm not saying this will really happen. But I don't think it's impossible, and I think many of us would agree that it's warranted.
You mean like our phone calls, text messages, emails, and encrypted communications? Yeah, I'm sure we all intended for those to be "public information".
> If the general public should be tracked to such precision
No concessions will be made. This is so unconstitutional (and just plain wrong) it's sickening.
I'm sure you're a smart/nice/well-meaning person, but I'm sick of people sticking up for the government. All it takes is a little bit of research and thinking about what's going on objectively to see that those running the government do not have our best interest at heart.
Because I don't want anybody to fucking know I'm having an extra-marital affair. How the fuck is that your or anybody else's business?
A simple starting point would be to put GPS trackers on every government owned car.
That's a huge, and wrong, presumption.
I just read oath as oauth. I guess I've been conditioned to expect oauth as a more likely word than oath on Hacker News.
> "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...
They knew that was a lie when they said it. They had tried in the past to get Congress to amend the Communications Act of 1934.
I trust the NSA to do just that.
> the control of the purse the Congress has
They increased the NSA's budget by $4 billion last year.
You're more than welcome to trust an agency with little to no oversight. I'll keep my faith in human nature. It's served me well all these years.
The problem isn't a rogue agency that doesn't have oversight. The problem is the law that allows the NSA to do just that. Take section 215 of the patriot act for example(it allows the government to obtain business records aka the verizon phone provision ); it is written in a way that makes it laughably easy to use for almost any use at all. The FBI doesn't even have to go to the FISA court but can choose any magistrate judge they want. The only restriction is "that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution." Wonderful......
In terms of realpolitik, that only makes sense. Politicians will defend anyone that they think might have the dirt on them. Intelligence apparatuses in all ages exist to control the political class.
Hoover's reign at the FBI is a history of political control via intel.
Which you aren't as of yet denying, since you're only replying to asides on details you didn't address that are either relevant today (enabling legislation that's been passed since then) or relevant for all this period (power of the purse, and of course what the Congress did last year is hardly relevant to what they'll do this year after all these revelations, or in 2015 after the next round of elections, etc.).
Which I think is a very important point: if they are subject to the rule of law, we have a variety of legal means to deal with them, some of which I've outlined.
If they are truly lawless, our options shrink down to the unpalatable choices of avoiding getting stomped on (which neither of us chose, given our participation in this discussion) or by definition extra-legal action. I'm not going to suggest that's what you're saying, but if you truly do believe they're lawless, do you have any ideas for action vs. "worry" and other forms of inaction?
I don't need to. Their actions define them. They're not acting lawfully so therefore they must be lawless.
I have my own methods for keeping a low profile on the net. I wish I felt comfortable sharing them in a public forum, but I don't.
The Five Rules of surviving today's total surveillance information personal property cleptocracy:
1) Don't think.
2) If you think, don't speak.
3) If you think, and speak, don't write.
4) If you think, speak, and write, don't sign.
5) If you think, speak, write and sign, be prepared to escape to Hong Kong.
I might be missing something but just because X applies to Y doesn't mean X doesn't apply to Z.
How come Aaron Swartz gets prosecuted for violating a TOS and the government doesn't?
There are a few possible outcomes to this debate:
-The NSA says, sure, its unconstitutional, but that wont stop us from doing it.
-The NSA continues to deny/lie about what they are doing with the program.
-The NSA appoints an oversight committee with no actual powers to make sure they "don't continue to do the same thing"
-No comment, forever.
Any of those options mean that the NSA keeps doing the same thing, tells us to STFU and we realize we have no recourse. I hate to say it, but it seems like this debate will have to end in violence or it won't end at all. :\
Of course, we'd need some protection against people defecting for the money. Maybe everyone has to make treasonous statements in front of a camera that we all carry or something, so if someone sells out we can have them jailed or executed for treason.
Were you fomenting the v word, yes or no?!
"Unconstitutional" has a very specific legal meaning. Its a shame that Mr. Barnett didn't feel like explaining himself on this matter.
I've got a thread of discussion here on my thoughts: https://news.ycombinator.com/item?id=6032777
It is clear to me at least that the program is legal and constitutional.
A Law Professor, writing an argument about law, without discussing the relevant cases? No discussion of Smith v Maryland? No discussion of FISA 702 or Patriot Act 215? Did he even bother to look up any relevant information with regards to this controversy?
Call it unconstitutional if you want, but I want to see an _argument_. Call yourself a law professor or a lawyer, but if you write under the guide of a legal expert, I demand to see a high level discussion on the issue.
Instead, I get a rant about libertarian ideals, applying the 5th Amendment to property you clearly do not own. I see vague descriptions of the 4th Amendment, with no regard to context that is going on in the debate in Washington.
Any "Law Professor" that writes about this subject... but FAILS to mention Smith v. Maryland is horribly horribly ignorant on the subject. And does not deserve to be writing under the guise of a legal expert. And he has failed to do his due diligence as both a legal expert and reporter.
"...True, judges have long been approving search warrants by relying on ex parte affidavits from law enforcement. With the NSA's surveillance program, the Foreign Intelligence Surveillance Court has apparently secretly approved the blanket seizure of data on every American so this "metadata" can later provide the probable cause for a particular search. Such indiscriminate data seizures are the epitome of "unreasonable," akin to the "general warrants" issued by the Crown to authorize searches of Colonial Americans.
Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property "without due process of law." Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law."
An ex parte judicial proceeding is conducted for the benefit of only one party. Ex parte may also describe contact with a person represented by an attorney, outside the presence of the attorney. The term ex parte is used in a case name to signify that the suit was brought by the person whose name follows the term.
Under the Fifth Amendment to the U.S. Constitution, "No person shall … be deprived of life, liberty, or property, without due process of law." A bedrock feature of due process is fair notice to parties who may be affected by legal proceedings. An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution. However, adequate notice of judicial proceedings to concerned parties may at times work irreparable harm to one or more of those parties. In such a case, the threatened party or parties may receive an ex parte court hearing to request temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing.
Ex parte judicial proceedings are usually reserved for urgent matters where requiring notice would subject one party to irreparable harm. For example, a person suffering abuse at the hands of a spouse or significant other may seek ex parte a Temporary Restraining Order from a court, directing the alleged abuser to stay away from him or her. Ex parte judicial proceedings are also used to stop irreparable injury to property. For example, if two neighbors, Reggie and Veronica, disagree over whose property a tree stands on, and Reggie wants to cut down the tree whereas Veronica wants to save it, Veronica can seek an ex parte hearing before a judge. At the hearing, she will ask the judge for a temporary Restraining Order preventing Reggie from felling the tree. She will have to show the judge that she had no reasonable opportunity to provide Reggie with formal notice of the hearing, and that she might win the case. The court will then balance the potential hardships to Reggie and Veronica, in considering whether to grant Veronica's request.
A court order from an ex parte hearing is swiftly followed by a full hearing between the interested parties to the dispute. State and federal legislatures maintain laws allowing ex parte proceedings because such hearings balance the right to notice against the right to use the legal system to avert imminent and irreparable harm. Far from violating the Constitution, the ex parte proceeding is a lasting illustration of the elasticity of due process.
Isn't there a big difference between collecting data from "a" pen register, and putting pen registers on every single phone in the nation? (And claiming that's not "collection", collection is only invoked if and when they decided to look at stored data?)
The author of this piece has failed to communicate part of the discussion from within Washington to the rest of his readership.
If "It[']s part of the discussion, it[']s part of the debate. Period." were a general rule of debates, then it would be ridiculously easy to sideline a debate by introducing random irrelevant facts to the discussion.
Please tell me why Mr. Barnett's rant about 5th Amendment rights in Colonial America is relevant to the conversation... but Smith v Maryland isn't.
Yeah, that's not a typo. Barnett begins to rant about the Fifth.
This article is more than trash, it is totally misleading in almost every way. Any discussion of the fourth amendment in the context of Patriot Act 215 will invariably bring up a discussion of the third party doctrine which states that: "information loses Fourth Amendment protection when it is knowingly revealed to a third party[1]." The author seems to go out of his way to avoid discussion of any of the extensive legal precedents that have interpreted the fourth amendment. Just hyperbolic rhetoric and comparisons to the colonial government. It isn't helpful at all.
1:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1138128
1. The date that you sent the letter
2. The address you're sending the letter to
3. The return address (ie: where you've sent the letter from).
Its a known fact that the Post Office records this information, and that the Police is free to analyze this information without a warrant. How do you think the Police go about those Anthrax attacks through the mail system?
Neither the Police nor the Post Office are allowed to OPEN an envelope, because that hasn't been revealed to a 3rd party. But that goes back to this whole _metadata_ collection question. There is no expectation of privacy on the three elements above... you've written it on the _outside_ of an envelope. So you expect other people to know about it.
If this is a "Police State", then we've been living in it for damn near a hundred years. Analysis of mail records is police standard procedure.
Similarly, the Smith v Maryland case argues that Telephone records have no expectation of privacy. After all, its all information that goes onto a caller-id, its all public information.
On the other hand... the actual conversation, the Feds aren't allowed to look at. That requires a warrant.
After all, its all information that goes onto a caller-id, its all public information.
A typical person will not expect the information shown on their caller ID screen to be public information. There's a really, really huge difference between information entrusted to a limited set of third parties to handle to the minimum extent necessary to carry out a service, and information made public. The government's reasoning and position on this needs to change.
Legally, it doesn't matter. Its warrantless. The Police don't need suspicion to analyze mail records! They don't prove anything to a judge, they just get what they want. The Post Office keeps track of your mail records anyway, so the Police can easily "retroactively" swim through that metadata whenever they please (again, without a warrant). No seriously, how do you think they got that Ricin letters guy so quickly?
There's a really, really huge difference between information entrusted to a limited set of third parties to handle to the minimum extent necessary to carry out a service, and information made public.
And thus, my anger why "Professor" Barnett isn't focusing on the relevant section of law. Section 215 of the Patriot Act, the (warrantless) collection of 3rd party "business records or any tangible things".
The law is _very_ clear where the NSA derives THESE powers from. Washington debate has been very clear to anyone who has paid attention. There is no need for "secret interpretations" of law, its clear as freaking day. This controversy should be focusing on the legal aspects of the controversy, you know... the parts that we can FIX instead of sitting around like dumbasses who can't figure out how to read.
I have an expectation for "legal experts" to tell this sort of information to the public. The solution is quite straightforward and simple. If you don't like what the NSA is doing, reform section 215 of the Patriot Act.
My anger is at "Professor" Barnett for not discussing anything relevant to this debate. As stated before, this debate is incomplete without discussing:
* Smith v Maryland (Warrantless collection of metadata is constitutional)
* 215 of the Patriot Act (Establishes legality of 3rd party collection of business records)
* 702 FISA Act (Leaked information was from FISA court, although the above two points are the important bits)
You want to know where the powers come from? Its there. Too bad you can't trust the "legal expert" in the newspapers to tell you this information :-(
http://www.volokh.com/2013/06/07/why-does-a-terry-standard-a...