N.S.A. Phone Surveillance Is Lawful, Federal Judge Rules

> I don't get how referencing a singular event often is actually an issue.

Because it's a reactionary and not derived in principle? How exactly do you counter "I know what's best for you based on a single event"?

The difference is that the depression was a big deal on its own, while 9/11 is a big deal in a circular way: it's important largely because we consider it to be important.

The actual damage done by the attack itself was not all that significant in the grand scheme of things. Yes, it was a massive tragedy, but neither the lives lost nor the property destroyed are noticeable on a national scale.

Most of the damage by far was the reaction to the attack, not the attack itself. It was the national equivalent of an allergic reaction.

Imagine if people were in charge of your immune system and they decided that the immune system must react strongly to bee stings. In defending their policy on bee stings, they bring up the last time you got stung by a bee, when it put you in the hospital. What makes it a problem is that they put you in the hospital themselves, not the bee sting by itself. The bee sting would have hurt, but wouldn't have required medical attention if it weren't for the allergic reaction to it.

> I don't get how referencing a singular event often is actually an issue.

Because it's irrational and doesn't represent the real probability of an event happening again. The argument is therefore that we are shaping policy (with ramifications on economics, privacy and politics) based on poor statistical analysis. I'd recommend reading Kahneman's Thinking, Fast and Slow if you're interested in understanding how irrational our minds are. http://www.amazon.com/Thinking-Fast-Slow-Daniel-Kahneman/dp/...

I'm having trouble parsing your comment... I read your last sentence in one of two ways: 1) it is sarcastic and you are pointing out that we can move past terrible tragedies, in which case, that's the same point I was making, so I don't really understand the first sentence, or 2) you really can't believe we're trade partners with Japan because of Pearl Harbor, in which case we just actually disagree.

I think the government is fundamentally different than a private company or semi-public utility. Their control of law enforcement and military forces are the most relevant here.

You mean - as one very easy example - how has parallel construction damaged the justice system?

The telephone company has little to no incentive to search through your telephone records and look for correlations. Further, the telephone company has no capability to correlate your Internet data to your phone records, to your physical mail, and come up with conclusions about you. The NSA does.

Yours have not been restricted. Freedom isn't always about YOU. Assuming you are white, for a moment, would you have disregarded the struggle for civil rights in the '50s and '60s because Jim Crow laws didn't restrict YOUR freedoms? Would you feel good about that decision today if you had?

There have been hundreds of cases discussed on this web site in which the the limitless security state has had a substantive impact on the lives of innocent people. Going beyond that, it is pretty clear that people change their behavior when they are being watched, and not for the better (https://encrypted.google.com/search?hl=en&q=privacy%20nothin...).

Your liberties HAVE been reduced, you just haven't bumped into one of the new walls yet, or you didn't notice if you have.

How do I know my computer is not compromised? How do I know the files on my cell phone are not compromised?

We've already established the NSA is not acting within the constraints of law. That's what Snowden revealed. One cannot rely on the law (the constitution or any other) to gain safety from government spying.

If someone let's you borrow their desk, you place it in your home. Does that person have the right to enter your home and use that desk whenever that person sees fit?

    Oh, I forgot that I left my [really important item] in 
    that desk I let you borrow, and your backdoor was unlocked. 
    Just thought I'd come in and grab it.

What if the person sends their best friend over to retrieve said important item?

Could this person ask a police officer to retrieve it (say the person is handicapped)?

So we're borrowing these "cloud desks". Does that mean the stuff I've placed in the desk is also up for grabs?

Under your analogy, not only can they retrieve the item from the desk, but they also get to know all sorts of things about how I personally used the desk.

    I'm sorry, but I don't like it when you leave the 
    drawers of my cloud desk open like that. So, I 
    took a picture of it so I can keep track of its use.

Now, would you agree to a borrow of a desk if you are expected to not only maintain its quality of state, but also it is that you are expected to record your every interaction with it?

They're recording it for you — fair enough, but is the loaner permitted to share those photos with other people? When does it end?

So the loaner isn't a government. But extrapolating from this: The Fourth Amendment gives us a clear answer to this question. Sure, it's not private, but that is beside the point. How I use the desk, technically, is not private, but something stops the loaner from telling the entire neighborhood about how I used the desk. That something is unwritten, often described in terms of "the rules of decorum" or simply: it's not worth it.

Thank Goodness Our Founding Fathers Decided to Write Something Down that Explicitly Answers this Question — When does it end? — in an Explicit Context that Can Be Governed.

Heck, by this Decision, our government can share our metadata with FOREIGN ENEMIES at their whimsy based on international agreements that statistically legislate over terror. This Decision just makes us a metastatistic, ultimately collatoral damage of a digital war.

They're exacerbating this institutionalized equivocation exactly so that they can cultivate our consumerist behavior and behavior as content producers for their own financial gain. They're exploiting exactly the fact that the Founding Fathers could not have foreseen the digital age. They're doing this on purpose:

ooops sry i didn't know what an internat wuz im just too old i guess

They're not doing their due diligence to correctly interpret, adapt, and apply these laws. And the Judicial Branch is folding to monied interest indirectly.

Essentially, we agree, though: treat everything on the internet accessible to everyone for the foreseeable future.

You write: "It's not reasonable for you to claim a privacy interest in documents over which someone else has unrestricted control."

If my wife has access to it, then I am not protected. If I live in an apartment, then the landlord has access. If I rent a VPS on the internet, but the files are not connected to the internet (ssh access only, no other port open), the VPS provider has access.

No, it's not about someone else having access. It's about your expectation of privacy. If you expect something to be private (like my https gmail, or my unshared google drive files, or my unshared dropbox files...) then it should be considered the same as a paper diary in a drawer in your nightstand.

If you are led to believe the information will be kept private from government access (except as outlined in the 4th amendment), then you have a right to expect privacy.

I know very well how the internet works. I know there is more that can be done physically than legally, but the privacy expectation is a legal standing, not a physical standing.

The NSA, however, and the Patriot Act (such a horribly-named law) which seems to allow it, have ignored this legal restriction, and have, because of physical access, obtained data for which US citizens had reasonable expectation of privacy from search by the government.

You write " but whether to indulge the fiction that documents which are as a factual matter not private should nonetheless be treated as private for 4th amendment purposes." Ah, but that's exactly what the 4th amendment addresses. While the government can physically obtain such information, they are prohibited to do so by law. So it's not a fiction, it's the law.

It doesn't matter whether you left your documents in your house, or your neighbors if "they police find those documents otherwise lawfully." So I'm not sure what your point is. I do have a reasonable claim of privacy if I leave a box of papers at my friends house. I can't claim that privacy if my friend gives the box to the police. But that doesn't give the police the right to barge into my friends house and take my property (without reasonable suspicion) Lets suppose the cops don't have reasonable suspicion to search my house for that box... If I give the box to a friend, and they don't have reasonable suspicion to search his house, they still don't have it, because I gave him the box. The only thing I don't have control of, is what my friend does with my box. In the Google case, I have a claim to privacy. I expect my mail to be private. It is my expectation, and the police should require the same warrants to get my data from Google than they would have to get it from my house.

Sure.

But it was a strange thing to begin with. Why would anybody trust a cloud provider with sensitive information? Another way to look at the NSA -- they are hardening our security.

Companies who've moved to the cloud have already weighed their risk vs. reward of handing their data to a 3rd party, vs. the cost of standing up their own datacenter and servers etc. This NSA business won't change any of that thinking for most IMO.

They've already ruled by moving to the cloud the cost savings is greater than the risk of a 3rd party accessing their data.

No Supreme Court justices have ruled on this. There have been two federal judges to issue a ruling so far, and if you'll recall the last ruling was the exact opposite. This debate is very much not decided.

Regardless of the 4th amendment, we have separate laws that protect our communications, much in the same way we protect our medical records. The only imaginable argument in favor of these transgressions are that "it's not illegal when the government does it"

Yes, put complete trust in the same judicial system that moves judges off of cases when they don't like the rulings. Especially when those rulings are centered around the exact handwavy unjust fourth amendment violations that justify the program in question here.

http://www.democracynow.org/2013/11/1/court_blocks_nypd_stop...

I don't know if you're seeing what i'm seeing, but there appears to be a war going on over this issue. Why should i trust the very capable people on this side of the fence, and not the very capable people on the other? Because you said so?

Such an Decision actually wholly deprives us of all self-governance what-so-ever since technically we do not own the fax machines and systems of all the companies we interact with.

This is totally disingenuous. It penalizes us for not only being born here but also for aligning ourselves with the American Dream.

Corporations are not people. Corporations do not have effects — we, the People, do. What kind of justice is this?

That's true. But both sides of the political spectrum regularly do these sorts of linguistic end-runs around the Constitution in the name of the ends justifying the mean. The right does it to the fourth amendment, the left does it to the second. So neither side can legitimately call out the other for hypocrisy because nearly everyone is willing to jettison at least part of the Constitution when the stakes get high enough.

Effects in this sense is a synonym for movable goods, that is, physical property. The text of the fourth amendment protects your property. This and other rulings are saying that the records your phone company produces of what calls they've connected are not yours, but the phone company's property. If Verizon gives its own property to someone, government or otherwise, you have no standing to claim any violation of your rights.

A web analogy: the records of who called whom (i.e. "phone metadata") are just like web server access logs. You would like the court to say that the web server access logs you produce are the property of all the individual people that visit your website. The judge is saying those logs, produced and held by your server, are your property alone.

You're aware that the Third Party Doctrine goes back to at least 1979, right?

http://en.wikipedia.org/wiki/Smith_v._Maryland

I'm not saying the doctrine isn't in need of an update, but let's not act like this is some weird new thing the courts just invented.

I think this ruling, and others it foreshadows, points to a need to amend the Constitution to ensure protections for personal property held by third parties on behalf of private citizens. At the time the 4th amendment was created, it was reasonable to assume that anything a person wanted to keep private would be safely secured by them in their own home. Times have changed. Now I keep my private financial "papers" in a system administered by a third party bank, my private medical "papers" in a system administered by a third party insurance company, and a lot of my other private effects in databases administered by third parties google, dropbox, etc.

Luckily the Framers foresaw that future changes would necessitate changes to our fundamental law so there is a process for the People to make such issues much less open to broad interpretation by the judicial branch.

There's a different argument here. Some buildings keep a visitor log. That will say when I arrived, perhaps who I'm visiting, and likely when I left. I do not own that data, and it is not part of my papers.

Nor is this information part of the papers of the person I'm visiting. It's part of the business records of the building owner.

There's no promise that this information is private. Indeed, in some buildings it's often semi-public information, in that successive visitors can likely see the log when signing in or out, and it's left on the main desk all day.

The argument is that this information isn't under 4th amendment protection because it not not part of your private or personal information.

The recent court opinion by Judge Leon against the NSA points out - rightly, in my opinion - that when there is a lot of information about who you communicate with, then that in turn reveals information about you and your thoughts. You should read the opinion.

The lawyer is a second party, not a third party. In the telephone call situation, you are calling someone else, using the phone company's (the third party's) equipment.

In any case, there may be attorney–client privilege, but it only applies if the lawyer is acting primarily as an attorney for you. If you are using the lawyer just to store documents that you don't want to keep yourself, then there's no privilege.

Thanks, I didn't realize I made that mistake. Maybe a better analogy would be a broker who is facilitating the transfer of some property, and the cops unreasonably searching/seizing the property while it's in the broker's possession?

Which is why Richard Stallman was right all along.

Thank you for educating me with that extremely relevant quote!

Yes, but X-ray? Sure someone might take a second look at an envelope photograph and come to the correct conclusion that something illegal is inside — but it's already been delivered.

It's just getting back to this point of "unreasonable" and what we're quantifying over (effects, our homes, etc.)

U.S. government is clearly taking either of two paths: wash out all meaning of "unreasonable", effectively making the extent to which they search infinite in scope, and wash out all meaning of "effects" such that the scope of what they can search through becomes infinite.

I think you've helped me identify the crux of the problem: "The Supreme Court" is not doing its job of protecting the Constitutional rights of persons in the US with the vigor necessary to counter (check) the Legislative and Executive branches.

> He was ruling that the collection was legal under the patriot act.

No, he was ruling that it was Constitutional under the Fourth Amendment. There were also claims under statutory rules, but they were dismissed on procedural grounds (specifically, that they were subject to soveriegn immunity and the claims, regardless of the merits, did not fit within the scope of Congressional waivers of that immunity.)

> However, the supreme court has the ability to apply "judicial review" to overturn a law / act / action.

Judicial review is not a unique power of the Supreme Court -- every federal court reviews actions against the federal Constitution (which is, after all, the highest federal law) routinely, and exercises the power of judicial review. The Supreme Court's only special role with regard to judicial review is the same as its special role on every other issue -- its the last answer in the judicial system, as there is no higher court to appeal to.

> However, the supreme court has the ability to apply "judicial review" to overturn a law / act / action.

So does any federal district court. The federal district court's decision (either way) can still be appealed to the supreme court though. In fact, this is pretty much the only way a case deciding constitutional law can get to the supreme court, first a federal district court has to decide if a law is constitutional or not, then it can be appealed to the supreme court.

In this case, one federal district court has decided that NSA actions are constitutional; another has decided they are unconstitutional. (The exact same actions? I'm not entirely sure). It will be appealed to the supreme court, who will probably accept the case, and decide one way or the other.

Seriously, you are mistaken about how the legal system works in the US.

HN does NOT do humour.

Well, unless its embedded in code, then its like fecking hilarious.

No, Groklaw is a freak show which used a flimsy excuse to shut down for reasons unknown.