Bills Introduced by Congress Fail to Fix Unconstitutional NSA Spying | Hacker News Reader

Bills Introduced by Congress Fail to Fix Unconstitutional NSA Spying

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168 pointsLibertatea52 comments

Fixing American laws is a step in the right direction, but it doesn't make me as a non-American feel any more confident about using US-based internet services.

It shouldn't. Our laws aren't designed to protect you.

This is true, but not the full story. Your parent specifically called out his lack confidence in U.S. companies, not in the U.S. government. While I agree that our laws shouldn't necessarily be designed to protect non-citizens, their design preferably shouldn't result in our companies losing access to foreign markets.

Are there any examples of countries that have the means to spy on other countries but choose not to?

The US between the years 1929-~1935. The closing of the American Black Chamber to the opening and secret executive permission for the military to break the law and steal communications for "training" purposes.

Which led to the famous Henry Stimson quote that "gentlemen do not read each others' mail".

Luckily for the U.S., they stopped acting like gentlemen in time for the Battle of Midway.

It's the difference between a peace footing and a war footing. The US broke off the lever that switches between the two.

Nuclear physicists broke off the lever. The intelligence community has been holding things together with duct tape ever since, successfully so far.

We should seriously ask whether the NSA is broken before we try fixing it. If a mushroom cloud over Indianapolis is a 10 on the civil liberty infringement scale, many people would rank domestic surveillance as a 0.0001.

Right, because nuclear terrorism is what the NSA is looking for. Nice rhetorical posturing there, big guy.

Well, the threat of a dirty bomb or actual nuclear payload being smuggled into a U.S. city by a terrorist group really is something the NSA is watching for. It's just not the only thing they're watching for.

I wish they'd been watching for fraud on the part of the biggest banks, which has done America a lot more damage than a smuggled bomb. Putting it in Indianapolis is rank pandering to the Tea Party, though. Back in 2003, my dad (also in (rural) Indiana) professed to be in fear of Saddam Hussein. I told him at the time that even if Saddam Hussein actually had any way to affect him, he'd never heard of Indiana.

And yet it's the heartland running on sheer terror to demand safety instead of their liberty.

Indianapolis was the site of a full-dress-rehersal nuclear interdiction field exercise. It is also a literary allusion to a well-known science fiction story in which Indianapolis is sacrificed to an alien nuclear attack.

Saddam Hussein could have trivially smashed the economy of Indiana as part of larger dsruptions of the world economy. The actual error is that by 2003 he was utterly deterred. Gulf War I taught him all about staying on his little patch of sand.

This discussion contains only the political partisanship you projected onto it. You need to learn that clear strategic analysis often contradicts or supports political dogma by coincidence.

Bah. It was in Indianapolis for the reasons I mentioned in my post - pandering and terror. That you now cite it as a reason to worry about Indianapolis is rather circular. As to your citing science fiction, I'd like to remind you that Close Encounters of the Third Kind took place in Indiana as well - should I be watching the skies?

This discussion contains all the political "partisanship" it needs, son. Get over yourself before you presume to tell me what I need to learn.

Also catching a dirty bomb by listening to peoples conversations is nearly impossible. Even a moderate false positive rate (like the conversation we are having now) hides any useful data.

Prospectively you are right. But once you have a single solid lead on the opposition, SIGINT lets you mop them up in short order.

Stimson got over it pretty quickly.

http://blogs.reuters.com/great-debate/2013/06/10/building-am...

Finland?[1] (I have no idea.)

[1]http://www.youtube.com/watch?v=uimh2EBB1yQ

I think a Constitutional Amendment should be considered too.

Would a bill to explicitly define the 4th to include data storage have sufficient force of law? Or would that violate separation of powers and get thrown out by SCOTUS?

At any rate, given the tepid reaction of Congress, I don't see an amendment happening anytime soon. Hell, at this point the ideological tribalism is so bad, I'm not sure they could agree on an amendment outlawing the kicking of puppies.

Once you change the constitution it can't be thrown out be the SCOTUS by definition. They can interpret constitutional law or declare law unconstitutional, they can't blatantly ignore the constitution (well, in theory...).

In short, the facility to reverse supreme court decisions is a constitutional amendment.

lukifer is asking about whether a normal bill (law) would be sufficient, as opposed to yuhong's suggestions of a constitutional amendment.

Congress can't change the scope of Constitutional rights, either to expand or narrow them. They could, however, simply outlaw the practice.

This all happened once before, with the Church Commission, and we were able to step back from the brink, using statutory rather than Constitutional fixes. Today, it seems we lack the political will to do so again.

I am thinking about defining foreign spying powers of the government.

> Would a bill to explicitly define the 4th to include data storage have sufficient force of law?

I don't think it would be a separation of powers problem in and of itself, but by virtue of separation of powers the judiciary wouldn't be bound to follow that interpretation.

Even the repealing of Citizens United as a Constitutional Amendment is having hard enough traction. With such low trust level in Congress (which means Congress is the most anti-citizens as ever), this is not a proper environment for introducing a Constitutional Amendment, anyway. Can you imagine what this "rogue" Congress would try to introduce in it (that's if they even accept to pass it).

Also, it's not needed. Why the hell can't we get the same type of strict restrictions for e-mail and online chat as for snail mail? Why?!

Those privacy laws for mail were not made based on the medium - paper - they were based on the principle of private communications. So why doesn't that apply to e-mail, too? The government is quick to say that copyright infringement online is just like stealing a car. So why isn't infringing on e-mail privacy just like infringing on snail mail privacy? And why doesn't e-mail get the same laws protecting it? That's what people need to ask their own representatives in Congress.

That's because citizens united was actually a good ruling. People don't lose rights just by forming groups.

Citizens united may have been a good ruling, but absent further reform in political campaigning, we'll continue to see bad results.

  >People don't lose rights just by forming groups.

In principle maybe, but, if only it were true. Try telling that to the many people arrested for political protesting, especially those arrested merely for being in proximity of a protest.

Then there is always the group of people who "choose" to travel by air.

I'm slightly confused by your response. It seem you agree with me that people shouldn't lose rights by being in a group. You cite 2 examples:

   In principle maybe, but, if only it were true. Try telling that to the many people arrested for political protesting, especially those arrested merely for being in proximity of a protest.
   Then there is always the group of people who "choose" to travel by air.

So we're in agreement about people and their rights. I guess the only part I don't get is the "In principle maybe, but, if only it were true. Try telling that to the many people arrested for political protesting, especially those arrested merely for being in proximity of a protest. Then there is always the group of people who "choose" to travel by air." Are you advocating for limiting the rights of groups to speak/assemble/spend & raise money? Or are you pointing out that the current system isn't great? I'll agree the latter - in my opinion the problem is that there is a concentration of power and massive budget - when there's that few people controlling that much money then the incentives will be to try and direct as much of the money towards your special interest as possible. Restricting groups is treating the symptom, not the cause.

It's silly to call this Congress a "rogue" Congress because of its low approval ratings. Nationwide, people still strongly approve of their elected representatives. They just hate the ones all the other people chose.

I wonder when the last Congress was that didn't have low approval ratings, in fact.

The 9/11 Congress: http://sas-origin.onstreammedia.com/origin/gallupinc/GallupS.... The one that passed the PATRIOT ACT and the AUMF.

Math is stronger than courts. If communications and storage are routinely encrypted, governments will have to focus on the truly high-value cases where planting and monitoring a bug is worthwhile.

Math and courts are strong in slightly different domains, not always overlapping. A two-pronged approach is necessary.

If it's unconstitutional, we don't need new laws to fix it. The existing laws (the constitution) need to be enforced. It's a failure of the judiciary, not the legislative branch.

You can't take it for granted that it is, in fact, unconstitutional, just because the EFF says so. The EFF has its interpretation of the 4th amendment, just like the ACLU. They take very expansive views of what those amendment means. Taking narrower views is not a "failure of the judiciary." It's disagreement over a document that can legitimately be interpreted in different ways.

Furthermore, what holds the Executive in check is the combined vigilance of Congress and the Judiciary.

The Judiciary must show reasonable deference to Congress when it comes to defining such things as "due process". If Congress chooses to create a due process in which it seems very easy for the Executive to get its way (e.g. the FISA court), on what legal basis is a sitting judge supposed to stand in the way? Unless it is completely obvious by existing legal precedent, a federal judge might rightly suppose it is the job of the Appellate and SCOTUS to define any new yardsticks.

FISA courts, PRISM, NSA, drone assassinations,... Congress holds in their hands the power to define the terms of the debate. That they choose not to is simply because the minority and majority leadership in both houses of Congress more greatly fear having to explain their own position to the American people, than they fear any particular arguable abuse by this president.

The problem is with qualifying violations. Current interpretations of 'spying' specify that violations don't occur until a human being queries the database, so technically 4th Amendment violations aren't occurring by the data being automatically stored and indexed by the NSA's vast data collection efforts.

There will also be fights about how 'public' data is, and there will be arguments about how anything shared on Facebook falls under the definition of 'public data.'

It seems like a failure of legislative branch too. But I want to ask you what can be done if the judiciary branch fails or is corrupt?

Congress can very easily act to define the terms of the debate on these legal questions by defining "due process" (and similar factors). The courts are obliged to show reasonable deference to Congress.

Congress chooses not to, and that is implicit acceptance by the majority and minority leadership in both houses of Congress.

Enforcing the laws is the job of the Executive, not the Judicial, branch. The judiciary can only weigh in when a litigant with proper standing brings a case before the courts.

We don't need to change the constitution. We need to insist that the 4th amendment be honored immediately. We are not at war.

There must be a full, open Congressional investigation (like Church) which pries open the so-called secret interpretation of the law (an idea which is utterly anti-American). We must subsequently have an informed discussion about how to do what needs doing to for real (not fear-driven) protection of citizens, while reversing the invasion of privacy clearly forbidden by the 4th, restoring explicit warrants backed by clear and unambiguous evidence.

This is a time to form a hard, hard line. If we do not at this time, then we should expect further dismantling of the Constitutional rights that millions of Americans have fought and lost their limbs for. I do not usually talk like this, but this is an extraordinary and dangerous time in our nation's history, one ripe for further abuse. Our Congresspeople need to recognize that their jobs are unquestionably on the line if they don't fix this situation.

I thought we agreed we're at war until people stop using terrorism. That's what the President told me, anyway.

Decreeing that governments should not try to infiltrate their citizen's (and not only their) privacy is like decreeing that terrorists should not possess explosives. The point is, if they'd find a possibility to do that, they still will do whatever's in their interests.

IMHO, the only reasonable option is to embrace the inevitable and explicitly allow any wiretapping (on any level, for anyone just because they can - not only for TLAs and law enforcement; with a several year of grace period, so the everyone could prepare themselves) and force the world to secure their communications and not rely on promises that nobody would peek at them.

This is great news but will it really force certain agencies and powerful circles to stop what they've been doing all this time in secret? And if not, what could?

No dice. They've taken the cellophane off of that gargantuan data centre, so it's too late to return it for a refund.

The crux of this article is that these Senators don't know how to fix the problem. That is far from correct.

Why? Senators Wyden and Udall are part of the Senate Intelligence Committee. They have full access to the secret discussions going on, and the practical implementation of them.

They are fully briefed on these issues, and hold clearances, as well as hold the power to investigate Top Secret America. Instead of assuming ignorance on Wyden and Udall's part... perhaps the EFF should be analyzing their proposals.

Instead of assuming ignorance, we should simply assume intent. But I think ignorance probably is sufficiently explanatory - access to snake oil sales pitches doesn't ensure informed decisions.

Wyden and Udall have been consistently against these programs damn near a decade, and have been trying to reform section 215 of the Patriot act the whole time. Wyden and Udall have not had to "change" their opinion before or after this controversy, they've been consistently against it the whole time.

Their reforms are the same that they've been pitching for many years, its just that no one has been listening. If you notice, they are the ones who are forcing the NSA to correct their public statements.

http://www.wyden.senate.gov/news/blog/post/wyden-and-udall-t...

They don't just listen to the NSA, they also correct the mistakes the NSA makes in public.

Yeah, I see that. But have they really drawn public attention to it? No. They've gone with the flow because they somehow agree that if the American public knows the law that governs them, we will all be killed in our beds by terrorists.

I have very little respect for people with the access and clout that Wyden and Udall have who fail to actually take any action outside their little box despite their probable understanding that this whole thing is undermining American democracy.

And that's why I don't feel bad about ascribing intent. Sure, they want to introduce mild reform without breaking any rules or expectations - but they want to keep their perky little jobs as opposed to taking an actual stand.

Why haven't they proposed any legislation addressing the fact that our policymakers are sworn to secrecy so they can't get a second opinion about the line they're being fed? Why haven't they brought any of this to the public for debate? Because they actually think that - except for a few tweaks - it is a good thing for America to be run by secret bodies using secret policies and judged only by secret courts. They have acclimated to a two-tier system of justice, one for people with pull and another for you and me.

http://www.wyden.senate.gov/news/press-releases/amendment-re...

Keep an eye on the date of these articles.

Lets be frank here: Wyden has been _ignored_. He's been writing and trying to get the word out publicly for a very long time. The only shame is on you for not knowing Politics, and not supporting Wyden's cause sooner.

It is not too late however to support Wyden or his proposals, if thats what you want. But your bastardized claims of Wyden only demonstrate how ignorant you are of American Politics.

But whatever, you can just go ahead and ignore me. Or perhaps you can listen up to what politicians in Washington say for once.

But if you decide to ignore politicians, and pass judgement upon them anyway, well... that just makes you an ignorant dumbass. So go on and assume everyone is against you on all matters, I'm sure that will play well for your sanity.

> That is far from correct.

What about the three other bills that were introduced by Congress? The bill by Udall and Wyden is just one of four.

This whole dispute is obsolete. Pretty soon the 3D printers will be cranking out isotope separators. Afterwards everyone will be part of a total surveillance society, by process of natural selection. We should consider this a practice run for learning how to build a transparent society that works.

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