Comment by s_q_b | Hacker News Reader

Comment by s_q_b | Hacker News Reader

I understand this is an unpopular opinion on HN, but I'm not willing to give up the advantages surveillance gives us. There are people out there that very much want to cause regular citizens harm. Make all the comparisons you want between bathtub falls and terrorism, but the fact is that terror attacks cause market panic, meaning the damage they do is on the order of billions of dollars.

On a personal note, I knew people at the Boston marathon finish line, as I'm sure many of you did as well. My parents had friends in the World Trade Center. If we could stop that in the future, that is worth a small sacrifice in personal liberty. Again, this a personal opinion, one that many do not share.

To me, the key is creating adequate oversight to control this leviathan. We need a real court, with proper appointment procedures and adversarial process. We need restoration of legislative oversight. Most importantly, we need strong encryption on the systems that can only be unlocked with a court order.

In fact, this was the original design of Total Information Awareness. The privacy tech got gutted somewhere in development, but there's no reason we can't bring it back.

Maybe you have a point. Maybe it is possible to install enough internal and external controls for these surveillance programs to bring them back from the outer edges of ethical and moral propriety. Maybe.

There's still, however, the problem of the Fourth Amendment. To my High-School-Civics understanding of the US Government, these programs are patently unconstitutional.

If these programs are indeed essential to our security, if they are to become a permanent fixture of our civil society, then let the Constitution be amended to allow them. Otherwise, no amount of oversight by any (or all) of the branches of the government will be sufficient to legitimize any such programs.

There's two issues at play here that are legally distinct:

1. Surveillance of United States Person (USPER) communication. 2. Surveillance of non-USPER communications.

With regard to (2), the Fourth Amendment does not apply to foreign nationals. That's not very reassuring for those outside the United States, but it is a well established principle of Constitutional law.

With regard to (1), the FISA court has carved out an exception to the Fourth Amendment, relying upon Skillman and its progeny. Now, that's a very shaky justification, and probably wouldn't hold up before SCOTUS.

So, at present they are within the bounds of the Fourth Amendment, under the FISA court's interpretation of the law. However, that foundation is not very solid. I agree that we need a data-mining amendment to the Constitution if we're going to continue with these behaviors.

With regard to (1), the FISA court has carved out an exception to the Fourth Amendment

Power is not given to the courts to make new law. The legal contortions required to twist the intent and letter of the Fourth Amendment so that it agrees with NSA, without making new law would be obscene.

relying upon Skillman and its progeny

Google wasn't helpful in locating a case/decision referred to as "Skillman". Can you elaborate?

"Power is not given to the courts to make new law. The legal contortions required to twist the intent and letter of the Fourth Amendment so that it agrees with NSA, without making new law would be obscene."

Unfortunately that's exactly what happened. When the government went to the FISA court and asked for approval to conduct broad monitoring, the FISA court ruled that such monitoring, so long as it was limited to metadata and used for certain purposes, was exempt from the Fourth Amendment under the "special needs" doctrine.

The case they relied upon was Skinner v. Railway Labor Executives Association, not Skillman as previously stated, which involved drug testing of Federal railway workers. There the court ruled that, given the overriding interest of protecting public safety, limited encroachments upon personal freedoms were not violative of the Fourth Amendment's prohibition on "unreasonable" searches.

Basically, the FISA court is writing its own Fourth Amendment jurisprudence in secret, which can't be effectively challenged by surveillance targets as they lack standing in the courts to sue.

Here's a nice summary from the NYT: http://http://www.nytimes.com/2013/07/07/us/in-secret-court-...

How do you feel about the concept that these types of programs in part may be what drives terrorists to do what they do?

Not very good. It's a thorny problem, but honestly I doubt many mujahideen are motivated by blanket surveillance.

That's not to say that the government didn't just mint a few hundred new highly skilled blackhat "hactivists" by deploying this technology.

A dragnet of the civilian population kept in perpetuity and allowing a dossier of everyone to be conjured up with a query is obviously not primarily for stopping terrorism. Who would fall for that really? (The target seems more aligned to tax enquiries for a start...)

9/11 was enabled by box cutters - the message was that this was super low tech and you often can't stop the most awful terrorism if people are really determined and feel they have nothing to lose. The good news for you is that news events are by definition rare and there's actually so little terrorism (in the west at least) - that's because there's not nearly as much motivation to commit these acts as many seem to believe, not because of robocops peering into your drawers.

To me, the key is dismantling the Leviathan and not allowing it to happen again.

My desires oppose your desires. Which of us gets to live in the world we desire to bring into being?

I hope the answer is that it is my world because I don't want to live in yours, thanks all the same.

Well, he doesn't want to live in your world either. So what do you do? :)

That was kind of my point :)

Tis a conundrum.

If only there was some way for us to compromise.

We vote, organize, protest. :) A few years ago I would have been right there with you, but since learning more about national security I have come to the conclusion that it really is a unique sphere where idealistic conceptions aren't always practical.

> There are people out there that very much want to cause regular citizens harm

And what happens if the government becomes the one that wants to cause regular citizens harm? How do you protest a government that knows everything, monitors everything?

Well that's the rub. Remember, we already live in the surveillance state. As it stands now, you're reliant upon the goodwill of the current government. If we put robust safeguards in place, we could ensure our rights more concretely.

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