Comment by rayiner | Hacker News Reader

Comment by rayiner | Hacker News Reader

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Legislative fixes aren't going to buy you a lot, though they'll buy you something. The fundamental problem is structural: there are a lot of things the NSA is totally allowed to do, especially when it acts as an agency of the executive outside of the U.S. Technologists tend to ignore national and jurisdictional borders because networks cross those borders, but the powers of the NSA are defined in terms of those borders. Not just statutorily, but as an agency of the executive, Constitutionally.

For example, Mike Hearn says: "Bypassing that system is illegal for a good reason." Illegal under whose law? Obvious things like the Wiretap Act simply don't apply outside the U.S. And this is by design: Congress and the courts are primarily domestic institutions. The executive, by design, has primacy when it comes to activities outside the U.S. Maybe this design made a lot more sense back in the day before the advent of trans-national corporations, but it's the design we have, and we're talking Constitutional-amendment level fixes to change that design.

Internally, you might see fixes without a Constitutional amendment. E.g. the Supreme Court might at some point weaken the third party doctrine, which is what makes a lot of the NSA's data collection not a violation of the 4th amendment. But they won't touch the activities of the NSA internationally.

U.S. law follows U.S. citizens around the world. For example if a U.S. citizen rob a bank in the U.S. and then flees to the UK, when the UK police catch him, he will be extradited and prosecuted in a U.S. court. He's not stuck into a UK jail without a trial.

That's the minimum issue here--Google ships the data of U.S. citizens around the world, and the NSA knows it. They are trying to play a cute game by pretending to assume that if the GCHQ collects the data in the UK, the NSA can safely treat it as foreign data. We need to call them on it.

U.S. law does follow U.S. citizens around the world, but only in certain circumstances does it apply to conduct abroad. For example, there is a law against U.S. citizens engaging in underage sex tourism abroad. But such laws are the exception. If you, e.g., murder someone in England, the U.S. can't hold you accountable under American law.

Your example is a bad one, because in your example the law is broken by conduct in the U.S. In this case, the splicing of the leased lines happened outside of the U.S.

The conduct in this case is not the fiber tapping, but the possession and use of U.S. citizen data by the NSA. It does not matter how they gather it, their restrictions are the same--they must limit and justify it.

The Google+ comment objects to the fiber tapping. It doesn't say anything about the use of U.S. citizen data, and the NSA asserts it has safeguards in place to filter out such data from foreign taps.

It depends. Extradition is complicated and often has conditions, like requiring that the act was illegal both countries. Some countries will not extradite a citizen of the theirs (dual nationality comes into play here), and countries in Europe will not extradite to the usa if the death penalty is an option.

Constitution, huh?

You may have noticed it getting thrown out the window already, what with American citizens in danger of being declared "enemy combatants" and locked away indefinitely without trial, or just droned to death on the spot and all.

Then there's Mr. Snowden, enjoying his Constitutionally protected right to freedom of speech.. in Moscow.

Legal access to a document can't compel the owner of the document to hand over encryption keys. And if the existence of the document can be denied, you can't even prove it exists. This level of protection is within the reach of existing tools. Services like Google can make those tools accessible to the masses.

The law has to observe physics. You can get a court order to "compel" someone to float off the ground, but that doesn't mean it's going to happen.

Sure, there are certain things that can be achieved by technological means. My point is that when it comes to certain areas of NSA activity, you're dealing with more than just simple legislative fixes. The specific example mentioned by Mike Hearn, the NSA tapping into international leased lines, is really illustrative. Our whole government is structured around the assumption that the executive branch is supreme when it comes to activities outside the U.S. To make it illegal,[1] for the NSA to tap into foreign leased lines would require more than just legislation, it would require Congress to decide to regulate the NSA's activity abroad in the first place. And in doing so Congress would run up against separation of powers issues, because in our system, it's not really Congress's place to dictate to the President how he carries out foreign security activities.

[1] I think as it is it might be a 4th amendment violation, but it's not contrary to any statute that I'm aware of, at least not any American statute.

And in doing so Congress would run up against separation of powers issues, because in our system, it's not really Congress's place to dictate to the President how he carries out foreign security activities.

I agree with you completely, but when the political will is there, Congress can dive head first into separation of powers fights. Look at the War Powers Resolution. It's almost certainly unconstitutional in a strict sense, or at least extra-constitutional. But the Supreme Court will likely never touch it, and Presidents take its requirements seriously.

One potential avenue for limiting foreign intelligence gathering short of an amendment would be ratifying a treaty to that effect. But that seems as unlikely as any other route, since, as has been pointed out a few times, most Americans care not a lick about foreign SIGINT, and to the extent they do would like it to be as effective as possible.

Those are both excellent points. A treaty would be a good idea, but first we need a President willing to negotiate such a treaty.

That depends on the meaning of "how."

Congress can very well pass laws that dictate foreign policy: You shall/shall not bug the Germans.

Though it's dubious, Congress can also say "You shall not spend money on fiber taps. You shall have money for satellites."

The bottom line is that the Congress can get into NSA's pants as much as they want to.

Congress can very well pass laws that dictate foreign policy: You shall/shall not bug the Germans.

They can pass them, but they'd almost certainly be as unconstitutional as a law from 1944 that mandated the invasion of Calais rather than Normandy.

It is beyond even that. Even if you get legislation making illegal for the NSA to spy outside the US you also have to pass a law saying they can't receive data from the GHCQ who were the ones who tapped Google and Yahoo in Europe and then shared the data with the US.

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