N.S.A. Phone Surveillance Is Lawful, Federal Judge Rules(nytimes.com)
nytimes.com
N.S.A. Phone Surveillance Is Lawful, Federal Judge Rules
http://www.nytimes.com/2013/12/28/us/nsa-phone-surveillance-is-lawful-federal-judge-rules.html
23 comments
What does a broken record sound like? Read the first line of the ruling: http://i.imgur.com/y8LZQUM.png
A quote from Benjamin Franklin comes to mind: Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.
Thanks for including the important "essential" and "little temporary" qualifiers that are so often left out.
Even so I don't like this quote. The notion that some people don't deserve safety because of their poor valuation of liberty, is so obviously wrong...
Even so I don't like this quote. The notion that some people don't deserve safety because of their poor valuation of liberty, is so obviously wrong...
Their price of admission is eternal resistance limited to defense.
In what way have my liberties been reduced? On the ground, nothing has changed. Now five organizations have my metadata instead of four.
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.
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.
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.
Huh? For many people your phone company, is their internet company. They already have your address (they have to deliver the cable to it) and your billing information.
The don't even need to do any fancy analytics. They have all your data served up on a platter.
As the poster noted, it's not as if the gov't is having to piece together data from thousands of sources. Almost all the metadata can be put together from a handful of sources.
The don't even need to do any fancy analytics. They have all your data served up on a platter.
As the poster noted, it's not as if the gov't is having to piece together data from thousands of sources. Almost all the metadata can be put together from a handful of sources.
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.
The government's monopoly on legal violence delegated to police and military (which are starting to blur together)
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ubiquitous spying capabilities only bounded by technology limits, finding clearance-passable bodies to wade through mountain ranges of data, keeping the lies plausibly deniable in front of Congress and containing waste of a sprawling bureacracy
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modern, horrible pattern of exceptionalism: disregarding any sense of morality, decency and/or due-process
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USG executive branch's de-facto dominant power position
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I'd agree at least until a single corporation has a market cap > 100% USG FY budget and/or the USG runs out of credit. Both seem essentially inevitable. (beware when private edifices and "defensive" capabilities rival the state's)
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ubiquitous spying capabilities only bounded by technology limits, finding clearance-passable bodies to wade through mountain ranges of data, keeping the lies plausibly deniable in front of Congress and containing waste of a sprawling bureacracy
+
modern, horrible pattern of exceptionalism: disregarding any sense of morality, decency and/or due-process
+
USG executive branch's de-facto dominant power position
=
I'd agree at least until a single corporation has a market cap > 100% USG FY budget and/or the USG runs out of credit. Both seem essentially inevitable. (beware when private edifices and "defensive" capabilities rival the state's)
Which is why the Bill of Rights in the Constitution is so important, because there is no way for the citizenry to force the government to act or not act. The armed forces and law enforcement swear to uphold the Constitution for that reason.
The last bit is the key point. There is zero accountability: it's asking the fox to guard the hen house. Mumbling words soon forgotten that can't be said with a straight face.
In short: it's a real accountability gap by the people that preach ostensible "accountability" and "transparency."
USG needs a 4th branch made of veterans, privacy and industry leaders (people that are both sharp and straight shooters) that have total access to surprise audit, defund and compel changes to any secret program. The only goal is to change behavior to "I probably shouldn't do [horrible thing] because [people more powerful than my CO/president] will find out." Even if it's just a phony whitehouse press release by the Yes Men.
In short: it's a real accountability gap by the people that preach ostensible "accountability" and "transparency."
USG needs a 4th branch made of veterans, privacy and industry leaders (people that are both sharp and straight shooters) that have total access to surprise audit, defund and compel changes to any secret program. The only goal is to change behavior to "I probably shouldn't do [horrible thing] because [people more powerful than my CO/president] will find out." Even if it's just a phony whitehouse press release by the Yes Men.
You mean - as one very easy example - how has parallel construction damaged the justice system?
Ugh no kidding. 9/11 happened on my 16th birthday. I can't believe I'm almost 30 and it is still used to justify so much of our policy.
I don't get how referencing a singular event often is actually an issue.
the Great Depression showed us how important it is to have an insurance on personal bank accounts, to disincentive bank runs. While one might counter that there have been other economic crises and bank runs, there have also been many other terrorist attacks aimed at US interests and allies. We still cite the great depression all the time because it was kind of a big deal.
I don't want to comment on how its being used in this policy decision but acting like 9/11 isn't somehow a big deal is strange.
the Great Depression showed us how important it is to have an insurance on personal bank accounts, to disincentive bank runs. While one might counter that there have been other economic crises and bank runs, there have also been many other terrorist attacks aimed at US interests and allies. We still cite the great depression all the time because it was kind of a big deal.
I don't want to comment on how its being used in this policy decision but acting like 9/11 isn't somehow a big deal is strange.
> 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"?
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"?
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> 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/...
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/...
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.
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.
The US reaction was not smart, but in fairness 9/11 was a big deal because it forced a recalibration of the tail risk from a terrorist attack - a whole bunch of scenarios (dirty bomb, chem or bio attack) that require complex planning and resources are much easier to believe post-911.
That strikes me as more of the same overreaction. 9/11 didn't really demonstrate complex planning and resources. It took a bit of cash, not a lot, and 20 people. The scale was big, but it wasn't exactly complex. The main difficulties of the other attacks you mention are obtaining the materials and getting them into the US, and ability at neither was demonstrated by 9/11.
The mention of a dirty bomb rather reinforces my point, I think. A dirty bomb isn't much more destructive than a regular bomb. Yet, we consider it to be a vastly greater threat. Why? Because we'd vastly overreact to it. Why? Because we consider it to be a huge threat. And so on in circles.
The mention of a dirty bomb rather reinforces my point, I think. A dirty bomb isn't much more destructive than a regular bomb. Yet, we consider it to be a vastly greater threat. Why? Because we'd vastly overreact to it. Why? Because we consider it to be a huge threat. And so on in circles.
Before 9/11 the idea that terrorists could destroy two skyscrapers by simultaneously coordinating multiple hijackings was ridiculous - a B-movie plot or paranoid fantasy. Today, not so much. What ridiculous fantasy will be true in 10 years time?
Again, none of this means that the reactions were smart - but the idea that there needs to be some reaction is not a priori stupid, and to try to characterize it as such weakens your argument (imho).
Again, none of this means that the reactions were smart - but the idea that there needs to be some reaction is not a priori stupid, and to try to characterize it as such weakens your argument (imho).
The basic scenario wasn't really outlandish. The general idea was featured in a bestselling novel about a decade prior, and an actual real-life terrorist hijacking (thwarted) that same year. And of course the concept of destroying valuable stuff by crashing airplanes into it on purpose dates back much farther.
Yes, despite all that it was unexpected. However, I have no sympathy for your "what ridiculous fantasy will be true in 10 years time?" argument. It's a complete non sequitur. There was a failure of imagination before in which terrorists were more capable than we thought, therefore we're doing the same thing now? I would argue that currently the exact opposite is happening. 9/11 seems to be the peak of their capabilities. Now, while we're imagining apocalyptic scenarios in which terrorists destroy entire cities, their actual capabilities seem to be limited to badly-constructed IEDs.
The point is that there was precedent for 9/11, even if people didn't realize it. There is no precedent for the sort of vastly worse attack you posit, nor is there any other reason to think that such a thing could be carried out in a way that makes it vastly worse than previous attacks. (The Aum Shinrikyo nerve gas attack does provide precedent for terrorist attacks involving chemical weapons, but it also demonstrates that such attacks aren't really all that severe. Again, they are worse because we react to them more strongly, and we react to them more strongly because they are worse.)
I'm not saying that all reaction would be stupid, only that it should be proportional. A normal human body does react to a bee sting, but it does so appropriately, by eliminating the poison and handling foreign substances. Likewise, a sane reaction to 9/11 involving tracking down those responsible and bringing them to justice would have been wise. What's stupid is not any reaction, but a massive overreaction, and then justifying the overreaction by pointing to the massive damage done, when that damage was mostly done by the overreaction.
Yes, despite all that it was unexpected. However, I have no sympathy for your "what ridiculous fantasy will be true in 10 years time?" argument. It's a complete non sequitur. There was a failure of imagination before in which terrorists were more capable than we thought, therefore we're doing the same thing now? I would argue that currently the exact opposite is happening. 9/11 seems to be the peak of their capabilities. Now, while we're imagining apocalyptic scenarios in which terrorists destroy entire cities, their actual capabilities seem to be limited to badly-constructed IEDs.
The point is that there was precedent for 9/11, even if people didn't realize it. There is no precedent for the sort of vastly worse attack you posit, nor is there any other reason to think that such a thing could be carried out in a way that makes it vastly worse than previous attacks. (The Aum Shinrikyo nerve gas attack does provide precedent for terrorist attacks involving chemical weapons, but it also demonstrates that such attacks aren't really all that severe. Again, they are worse because we react to them more strongly, and we react to them more strongly because they are worse.)
I'm not saying that all reaction would be stupid, only that it should be proportional. A normal human body does react to a bee sting, but it does so appropriately, by eliminating the poison and handling foreign substances. Likewise, a sane reaction to 9/11 involving tracking down those responsible and bringing them to justice would have been wise. What's stupid is not any reaction, but a massive overreaction, and then justifying the overreaction by pointing to the massive damage done, when that damage was mostly done by the overreaction.
Let me say that I think we largely agree, and that I'm deeply sympathetic to your immune system analogy. The US over-reacted, badly, and many, many innocent people were killed because of that. And arguably we are all less safe now, precisely because of that over-reaction.
I have been extremely critical of that reaction in the past, along much of the same lines you state. I haven't changed my mind on that, but I have also come to realise that it's actually really hard to calibrate risk in this situation - in the case of car accidents or lightning strikes, say, we can forecast expected outcomes very accurately, and the variance of those outcomes is relatively low. The threat model for an intelligent opponent is very different - history is a poor guide and the variance of potential outcomes is very high.
I have been extremely critical of that reaction in the past, along much of the same lines you state. I haven't changed my mind on that, but I have also come to realise that it's actually really hard to calibrate risk in this situation - in the case of car accidents or lightning strikes, say, we can forecast expected outcomes very accurately, and the variance of those outcomes is relatively low. The threat model for an intelligent opponent is very different - history is a poor guide and the variance of potential outcomes is very high.
I'm sorry I quite get your analogy, you're saying the problem is that he went to the hospital?
I am not trying to justify the reaction to 9/11, but using it as a reference point seems fine, just like the berlin wall being torn down is not in itself the event that ended the cold war, but is a turning point for things.
But your point about it being self-referentially important seems pretty valid.
I am not trying to justify the reaction to 9/11, but using it as a reference point seems fine, just like the berlin wall being torn down is not in itself the event that ended the cold war, but is a turning point for things.
But your point about it being self-referentially important seems pretty valid.
I'm saying that the immune system overreacted, resulting in an allergic reaction that put the person in the hospital.
Bee stings aren't all that harmful in normal people. But some people's immune systems decide to treat bee stings as if they were extremely dangerous, life-threatening events, and in those people, the reaction itself becomes an extremely dangerous, life-threatening event. If (and this is a huge if, of course) you could simply convince the immune system not to react so strongly to a bee sting, the threat would be gone. But instead, in this analogy, you have the people running the immune system arguing for a stronger reaction to bee stings, citing the terrible consequences of the last one as the reason for it.
Bee stings aren't all that harmful in normal people. But some people's immune systems decide to treat bee stings as if they were extremely dangerous, life-threatening events, and in those people, the reaction itself becomes an extremely dangerous, life-threatening event. If (and this is a huge if, of course) you could simply convince the immune system not to react so strongly to a bee sting, the threat would be gone. But instead, in this analogy, you have the people running the immune system arguing for a stronger reaction to bee stings, citing the terrible consequences of the last one as the reason for it.
This is really a very tidy analogy, I like it! It can even be generalized to other problems, such as crime, where the response to some threat (real or imagined) yields an outsized response that ends up making the problem itself much, much worse. The war on drugs would be the best example here.
My problem with the 9/11 anecdote, is the Judge believes 9/11 could have been prevented if we had known someone's phone number. Although he didn't provide any evidence to suggest that knowing his phone number would have helped, or that we knew he would be involved. What is also interesting is, the claim that because we didn't know his phone number, we assumed he was overseas. I fail to see how knowing that he was in San Diego would have made a difference. Or why they automatically assumed he was overseas. Or even why he was a suspect, and if he WAS a suspect, why do nothing other than throw their hands up in the air and say "well he is overseas, oh well"
One day you'll join the rest of us and stop doing math like that.
Anyway, I still can't believe we're trade partners with Japan. I mean, after all, Pearl Harbor?
Anyway, I still can't believe we're trade partners with Japan. I mean, after all, Pearl Harbor?
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.
It's the first one.
The first sentence is a reference to getting old.
The first sentence is a reference to getting old.
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He who forgets history is doomed to repeat it.
History is full of tyranny using alleged external threats as an excuse for power and money grabs. So, yeah.
Those of you who want a political answer to this surveillance problem should pay attention when these things happen. This is your system, in a nutshell. The legislators, judges, law enforcement officials, etc, are all in on this. Don't wait for the president or prime minister to change things. That won't happen. You'll have to take your security into your own hands to the greatest extent possible. This will including learning to adapt once your government inevitably outlaws your favourite means of protecting your security and privacy.
I've reached the conclusion that in order to receive constitutional protection of "my papers", they need to be "on paper". So, I essentially don't put anything on the internet, or even on my computer, unless I'm comfortable with it being on the internet, permanently (meaning until my great-grandchildren retire, in 120 years).
for reference, the Fourth Amendment to the Constitution of the United States:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
I would like to think that "papers" in the text would also refer to electronic documents, but alas that seems to not be the case.
This is one of those cases where the saying "In Theory, Practice and Theory are the same, but in practice they're not." seems to fit.
for reference, the Fourth Amendment to the Constitution of the United States:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
I would like to think that "papers" in the text would also refer to electronic documents, but alas that seems to not be the case.
This is one of those cases where the saying "In Theory, Practice and Theory are the same, but in practice they're not." seems to fit.
You're setting up and knocking down a strawman. Its not a matter of electronic documents versus paper. A USB key in your desk drawer is protected as much as a stack of paper documents. This was not a controversial issue. Courts have treated electronic documents uniformly with paper ones for a long time with little fanfare.
The relevant issue is where these documents are located, and whether it's reasonable to have a privacy interest in documents transmitted in plain text over the internet. As an analogy: if you leave your physical papers in someone's garage, you cannot invoke the 4th amendment if the police find those documents otherwise lawfully. It's not reasonable for you to claim a privacy interest in documents over which someone else has unrestricted control.
That's the nature of an electronic document "in the cloud." Countless people have access to that document, at the service provider and also at intermediate routing nodes. If you use Google or Facebook, that information is even routinely scanned for advertising purposes. That's the nature of the internet. It's built on routing plain text information between unrelated nodes. Treating this information that is physically not private as "logically private" is a social fiction based on trusting service providers.
That's the question courts are faced with. Not whether electronic documents enjoy 4th amendment protection (they clearly do), 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. There might be good reason to do that. There might also be good reason to stop short of fully endorsing the current status quo, and requiring service providers to make certain privacy guarantees in order for documents on their systems to enjoy 4th amendment protections.
The relevant issue is where these documents are located, and whether it's reasonable to have a privacy interest in documents transmitted in plain text over the internet. As an analogy: if you leave your physical papers in someone's garage, you cannot invoke the 4th amendment if the police find those documents otherwise lawfully. It's not reasonable for you to claim a privacy interest in documents over which someone else has unrestricted control.
That's the nature of an electronic document "in the cloud." Countless people have access to that document, at the service provider and also at intermediate routing nodes. If you use Google or Facebook, that information is even routinely scanned for advertising purposes. That's the nature of the internet. It's built on routing plain text information between unrelated nodes. Treating this information that is physically not private as "logically private" is a social fiction based on trusting service providers.
That's the question courts are faced with. Not whether electronic documents enjoy 4th amendment protection (they clearly do), 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. There might be good reason to do that. There might also be good reason to stop short of fully endorsing the current status quo, and requiring service providers to make certain privacy guarantees in order for documents on their systems to enjoy 4th amendment protections.
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.
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.
> If my wife has access to it, then I am not protected. If I live in an apartment, then the landlord has access.
Apartments and safe deposit boxes are actually an excellent example of my point. There are legal and cultural restrictions on how a landlord or bank may access your apartment or safe deposit box. So those are protected by the 4th amendment. There are no such restrictions when it comes to data hosted in the cloud. If your landlord or your bank routinely rifled through your apartment or safe deposit box, as internet companies do with your digital accounts, then they very well might not be protected by the 4th amendment.
> It's about your expectation of privacy. If you expect something to be private
No, it's about "reasonable" expectation of privacy. And it's about whether that expectation is objectively reasonable, not subjectively reasonable. The fact that people have access to your documents is not determinative of whether an expectation of privacy is objectively reasonable, but is a strong factor in the analysis. Your expectation of privacy is a lot more reasonable when you're talking about an apartment, which a landlord may enter without permission only in an emergency, then when you're talking about an online account your service provider routinely rifles through in order to target advertising.
> 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.
Sure, the 4th amendment is a fiction in the sense that all law is a fiction. My point is that the boundaries of the law do not need to be coextensive with the social fiction. Just because many people treat Facebook accounts as "private" does not mean that doing so is objectively reasonable in light of how many people at Facebook have access to those accounts, and in light of Facebook's data mining of those accounts. The appropriate legal standard may well be higher. E.g. expectation of privacy is only objectively reasonable when online accounts are end-to-end encrypted and not routinely data-mined.
Apartments and safe deposit boxes are actually an excellent example of my point. There are legal and cultural restrictions on how a landlord or bank may access your apartment or safe deposit box. So those are protected by the 4th amendment. There are no such restrictions when it comes to data hosted in the cloud. If your landlord or your bank routinely rifled through your apartment or safe deposit box, as internet companies do with your digital accounts, then they very well might not be protected by the 4th amendment.
> It's about your expectation of privacy. If you expect something to be private
No, it's about "reasonable" expectation of privacy. And it's about whether that expectation is objectively reasonable, not subjectively reasonable. The fact that people have access to your documents is not determinative of whether an expectation of privacy is objectively reasonable, but is a strong factor in the analysis. Your expectation of privacy is a lot more reasonable when you're talking about an apartment, which a landlord may enter without permission only in an emergency, then when you're talking about an online account your service provider routinely rifles through in order to target advertising.
> 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.
Sure, the 4th amendment is a fiction in the sense that all law is a fiction. My point is that the boundaries of the law do not need to be coextensive with the social fiction. Just because many people treat Facebook accounts as "private" does not mean that doing so is objectively reasonable in light of how many people at Facebook have access to those accounts, and in light of Facebook's data mining of those accounts. The appropriate legal standard may well be higher. E.g. expectation of privacy is only objectively reasonable when online accounts are end-to-end encrypted and not routinely data-mined.
Uh, but this end-to-end encrypted stuff is exactly what happens: We use https to upload stuff to our amazon servers, and crunch the data, and bring it back to us using https.
Should there not be 4th amendment protection in that case? And if so, and if the NSA accessed such data, how could their access possibly have been legal? The Patriot Act is not allowed to contradict the Constitution, and if it does, the Constitution takes precedence.
Should there not be 4th amendment protection in that case? And if so, and if the NSA accessed such data, how could their access possibly have been legal? The Patriot Act is not allowed to contradict the Constitution, and if it does, the Constitution takes precedence.
Oh, forgot, since it's held by a third-party, of course the government can collect this. I bet they take "unscheduled" snapshots that don't show up in the console. The Amazon workers are told to "just do your job" by their legal department. Right? Prove me this is not happening already.
Also, it matters not if it's encrypted, on the way, because the NSA has the capability to compromise the machines that contain the private keys. (Hackers with keyboards or goons with guns in datacenters).
Also, it matters not if it's encrypted, on the way, because the NSA has the capability to compromise the machines that contain the private keys. (Hackers with keyboards or goons with guns in datacenters).
Its not encrypted in the AWS instance if I understand correctly. And I'm not sure the NSA has in fact compromised AWS in that way.
You not being sure one way or another does not mean they haven't. So you must assume they have. Which is what Europeans and Canadians are doing and keeping their stuff off the US cloud servers.
It's pointless to talk to someone who concludes that the NSA is willing to ignore the law simply by extrapolating from things it has done that demonstrate intent to stay within the law as understood.
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.
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.
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.
> We've already established the NSA is not acting within the constraints of law.
What we've established is that the NSA is acting enough within the constraints of the law that different courts disagree as to the legality of its actions.
What we've established is that the NSA is acting enough within the constraints of the law that different courts disagree as to the legality of its actions.
If I drive the speed limit for 300 miles on the freeway, but I speed on the last 10 miles, and a policeman gives me a ticket during the last 10 miles, can I say: "Officer, I was following the law most of the time, so it's ok?"
Acting within the constraint of the law means always acting within the constraint of the law, not just when it's convenient.
Acting within the constraint of the law means always acting within the constraint of the law, not just when it's convenient.
It's more like driving in a 60 mph zone and multiple officers with radar guns that disagree whether you were driving 59 or 65 mph.
[deleted]
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?
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.
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.
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.
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.
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.
This actually looks more like the system working to me. There are now two important judges who disagree in their interpretation of the issue. The system failed when this was kept secret such that it could not be ruled on by the legal system (and I don't believe a "secret court" is a part of a "legal system"), but now that it is being ruled on, it's expected and proper that judges may disagree.
Please keep in mind the very actions being described themselves have implications of undermining the entire judicial system, up to and including the SCOTUS. It's easy to say, "Well, yeah it was shitty they hid it from us, but now the courts will all take care of it as they do, and I'm sure SCOTUS won't rule wrongly, no no, they would never do that." but if you ignore the fact that there are allegations that judges are largely appointed based on the ability for the appointee to control via various methods including blackmail and bribery.
I'll let you follow the implications from there, but I'm afraid this situation is much more serious than you seem to realize.
I'll let you follow the implications from there, but I'm afraid this situation is much more serious than you seem to realize.
Maybe you should try to be less myopic on these things when paying attention though. Historically both the judicial and the legislative system have slowly pushed back on unchecked executive privilege. Before FISA, the executive could basically spy on any foreigner for any reason without any reason given to the other branches. Congress pushed back, putting into place the Senate Intelligence committee.
The problem isn't that all branches are in on it, it's that they aren't. There isn't communication between the three branches, so when the gory details get revealed ,be it Hoover's FBI antics, Nixon's abuses, or now, the NSA's eagerness, other branches fight back.
If you look at laws regarding privacy historically, there's a general tendency for more, not less. One step back doesn't invalidate a whole system.
The problem isn't that all branches are in on it, it's that they aren't. There isn't communication between the three branches, so when the gory details get revealed ,be it Hoover's FBI antics, Nixon's abuses, or now, the NSA's eagerness, other branches fight back.
If you look at laws regarding privacy historically, there's a general tendency for more, not less. One step back doesn't invalidate a whole system.
We're in a new era of surveillance, where Nixon's abuses look like schoolyard pranks compared to what governments are doing today. Even the excesses of Hoover's FBI can't touch what is being done now. Considering how little (read: next to nothing) was done about those past excesses, it won't shock me to see nothing at all done about those conducted in the present-day. We've seen legislatures, presidents, and courts all lining up on the same page, with more than enough rubber-stamping to go around. Creating oversight bodies means another set of rubber stamps.
Past performance isn't necessarily predictive of future results. Big data is entirely unprecedented in world history.
You're not going to get a political solution without widespread political action. Talk about it, make it an issue that is just as important as anything else at the polls. Make other people understand the importance of the issue as well.
If gay marriage and pot legalization can become real, serious issues that the electorate cares passionately about then so can surveillance and the extension of essential liberty onto the internet.
If gay marriage and pot legalization can become real, serious issues that the electorate cares passionately about then so can surveillance and the extension of essential liberty onto the internet.
Gay marriage and pot legalization haven't done anything to diminish the power of the State. If anything, they've done the opposite, by introducing even more controls into certain areas of our lives. But leaving that aside, I think that governments find our privacy to be a much greater threat to their power than who they decide can get married, or what they decide people can smoke. I think that going after the surveillance state cuts much closer to the heart of their power.
I think that's a false dichotomy. You're not going to get mainstream technical fixes, or keep them legal and secure, without engaging in a fair amount of politics. There are plenty of misfires and misguided efforts in both the political and technical spheres, but that doesn't mean either sphere should be dismissed in its entirety.
If some people want to spend their time and energy on political pursuits, they're free to do so. I won't try to stop them, but I will be happy to both discourage them and to not join them in such pursuits. This isn't like trying to get the government to allow the plebes to smoke pot, or something similarly-unthreatening to their power. Though I am sure that governments would be happy to legalize your privacy, in exchange for broad regulations on how much they'd like to allow you to have at a given moment (meaning, none whatsoever when it really counts).
As there are more trial court decisions on the NSA programs, it appears that there will be a split in results of those decisions among various trial courts. Those decisions can be appealed to the federal circuit appellate courts, where there may again be a split among the decisions. A circuit split[1] on an important issue of federal law, especially constitutional law, is one of the most reliable ways to prompt consideration of an issue by the United States Supreme Court. That court will have the last word[2] on this issue.
[1] https://en.wikipedia.org/wiki/Circuit_split
[2] "We are not final because we are infallible, but we are infallible only because we are final." A saying by Justice H. Jackson.
https://en.wikipedia.org/wiki/Robert_H._Jackson
[1] https://en.wikipedia.org/wiki/Circuit_split
[2] "We are not final because we are infallible, but we are infallible only because we are final." A saying by Justice H. Jackson.
https://en.wikipedia.org/wiki/Robert_H._Jackson
For what it's worth, even if there were no circuit split (i.e., even if the courts of appeals in both cases agree), the Court does often take cases that are of great national importance. This would certainly qualify.
> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies."
The thing I don't get is why the NSA is considered a third party here. It's not the phone companies keeping the records, it's the NSA, so I honestly do not understand this ruling.
The thing I don't get is why the NSA is considered a third party here. It's not the phone companies keeping the records, it's the NSA, so I honestly do not understand this ruling.
I think he's saying the phone company is the 3rd party, and so searching and seizing from them is fine, because they're not searching you directly?
I guess a physical analogy would be if you held your belongings in a 3rd party storage unit, the judge is saying the cops should be allowed to search and take whatever they want, because they're doing it to you through a 3rd party.
I guess a physical analogy would be if you held your belongings in a 3rd party storage unit, the judge is saying the cops should be allowed to search and take whatever they want, because they're doing it to you through a 3rd party.
I don't think you understand what "3rd party" means.
The storage unit is a 2nd party. You (the first party) have a contract with the storage unit (the second party) to store your things. There is no third party.
Compare that to the phone company, where you (the first party) talk with someone else (the second party) using the phone company (the third party) equipment.
The storage unit is a 2nd party. You (the first party) have a contract with the storage unit (the second party) to store your things. There is no third party.
Compare that to the phone company, where you (the first party) talk with someone else (the second party) using the phone company (the third party) equipment.
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?
Here's the most apt analogy regarding "transfer of some property": The police aren't allowed to search a package without a warrant, but the USPS does photograph all U.S. mail (160 billion pieces), and sometimes provides that information to a police investigation.
After all, what's on the outside (the metadata) is public.
But in general, the owner of your apartment complex cannot give police permission to search your apartment, and the owner of a storage facility cannot give permission to search your items.
(As an example of advices for the latter, read http://www.selfstoragelegal.com/articles/misc/police.asp , which tries to walk the fuzzy line of being nice to the fuzz without bending any consumer protection laws that far.)
After all, what's on the outside (the metadata) is public.
But in general, the owner of your apartment complex cannot give police permission to search your apartment, and the owner of a storage facility cannot give permission to search your items.
(As an example of advices for the latter, read http://www.selfstoragelegal.com/articles/misc/police.asp , which tries to walk the fuzzy line of being nice to the fuzz without bending any consumer protection laws that far.)
So, if I give some papers to a lawyer to hold in his safe for me, I'm actually less secure than if I held them myself?
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.
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.
So what does that make cloud service providers like dropbox? Aren't they directly analogous to me giving a document to someone to put in a safe?
I don't understand the question, sorry. Dropbox isn't a third party, and it isn't your attorney (or a handful of other fields with special legal status).
You should look to see the legal precedent for private courier service, or for storage facilities. Those are more likely to be comparable to dropbox, if only because consumer protection laws may be relevant.
(That is, you can't give it to your friend, to put into a safe, and expect that it has any status different that anything else that your friend had. For example, a warrant may require your friend to open the safe, because your friend might also store personal items along with your items. While for a storage facility, a warrant to search the business's records would not automatically imply searching the entire building.)
You should look to see the legal precedent for private courier service, or for storage facilities. Those are more likely to be comparable to dropbox, if only because consumer protection laws may be relevant.
(That is, you can't give it to your friend, to put into a safe, and expect that it has any status different that anything else that your friend had. For example, a warrant may require your friend to open the safe, because your friend might also store personal items along with your items. While for a storage facility, a warrant to search the business's records would not automatically imply searching the entire building.)
I don't get it... The Fourth Amendment Text reads:
That's like arguing that cops can search your apartment if it's being rented.
The right of the people to be secure in their persons, houses,
papers, [and effects], against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.
That's like arguing that cops can search your apartment if it's being rented.
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.
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.
I still don't get it. There's equivocation with the verb to produce.
I'm going to play Socratic Advocate here. When a music producer produces a record of an artist, who owns it? How do we conceptualize this relationship of artist to market? Do we argue for record companies or for artists? What motivates the moral structure of this debate? Are we sympathizing with record companies or artists? It's a record of the artist's musical activity.
Now, a phone company is a producer of our records. We're its content producers. But if the record company re-uses its artist's work without that artist's permission...?
How do we conceptualize this asymmetry?
I'm going to play Socratic Advocate here. When a music producer produces a record of an artist, who owns it? How do we conceptualize this relationship of artist to market? Do we argue for record companies or for artists? What motivates the moral structure of this debate? Are we sympathizing with record companies or artists? It's a record of the artist's musical activity.
Now, a phone company is a producer of our records. We're its content producers. But if the record company re-uses its artist's work without that artist's permission...?
How do we conceptualize this asymmetry?
If I tell you I murdered someone, should the government have to get a warrant to get that information from you? What if they asked you if I visited your bookstore last week? What if you kept a journal indicating each time I visited your store, or bought a book? What if they asked Amazon for a list of when I visited their site, or bought a book? (Keep in mind Amazon has the right to refuse to give that information without a court order...the question is whether I can protest that subpoena, or only Amazon can).
At some point, there needs to be a line drawn. The 4th amendment has been interpreted to protect "reasonable expectations of privacy" in order to draw that line. If I tell you I murdered someone, or if you tell the police when I visited your store, that's over that side of the line. I have no reasonable expectation of privacy. I freely gave up this information to a third party.
The copyright law has an entirely different history, text, and history of interpretation.
I agree that the third party doctrine is no longer workable in the digital age (people probably have just as much of an expectation of privacy in their DropBox as their C: drive), but I don't think the other viewpoint is entirely unreasonable, especially during the pre-digital age.
At some point, there needs to be a line drawn. The 4th amendment has been interpreted to protect "reasonable expectations of privacy" in order to draw that line. If I tell you I murdered someone, or if you tell the police when I visited your store, that's over that side of the line. I have no reasonable expectation of privacy. I freely gave up this information to a third party.
The copyright law has an entirely different history, text, and history of interpretation.
I agree that the third party doctrine is no longer workable in the digital age (people probably have just as much of an expectation of privacy in their DropBox as their C: drive), but I don't think the other viewpoint is entirely unreasonable, especially during the pre-digital age.
Such institutionalized equivocation can only go on for so long...
[deleted]
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.
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.
In legal philosophy there is the notion of "proximate cause" — this needs to be re-purposed for "effects" such that we define the notion of "proximate effects" w/r/t to content producers.
If a music artist has some legal clout regarding that which is produced, and can seek renumeration through certain provisions, we as content producers of phone companies (and obviously ISPs, because clearly that's the next phase in this legal narrative) should have provisions which scope and define joint ownership of our recorded activities insofar as a "chain of events" is scoped around our assigned IP addresses and telephone numbers.
A schema can follow http://schema.org/Person. Block any transaction between third-parties and government that involves these properties. Metadata becomes what is left over — raw information about what is essential to describe the service itself.
We are content producers just like music artists are content producers. Phone companies are just like record labels.
If a music artist has some legal clout regarding that which is produced, and can seek renumeration through certain provisions, we as content producers of phone companies (and obviously ISPs, because clearly that's the next phase in this legal narrative) should have provisions which scope and define joint ownership of our recorded activities insofar as a "chain of events" is scoped around our assigned IP addresses and telephone numbers.
A schema can follow http://schema.org/Person. Block any transaction between third-parties and government that involves these properties. Metadata becomes what is left over — raw information about what is essential to describe the service itself.
We are content producers just like music artists are content producers. Phone companies are just like record labels.
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.
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.
The attorney general of Maryland who argued that case in 1979 has strongly protested against its application to mass surveillance.
http://www.npr.org/2013/12/21/256114227/1979-supreme-court-r...
http://www.npr.org/2013/12/21/256114227/1979-supreme-court-r...
Well, yeah. But what are we going to do about it since it's clear past due to update such laws. Now we're in the thick of an infrastructure that has just busted any practical sense of minimal right to self-governance.
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.
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.
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.
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?
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?
Law is not some unicorn that you can make whatever color you like. It is flawed like all creations made by man, and only what we make it.
This is the most important distinction here.
According to this, tax returns and medical records are no longer private, since you don't control them.
According to this, tax returns and medical records are no longer private, since you don't control them.
Yes, and they are not, which is precisely why we have separate laws that explicitly assure us of the privacy of these documents.
As for sibling comments that exclaim that this doctrine contradicts the meaning of the Fourth Amendment, consider that very intelligent people (Supreme Court Justices) who are explicitly trained in interpreting laws and especially the Constitution, and who are selected partly for this precise talent, have thought otherwise. In light of this circumstance, it may at least be reasonable that it is you who are not properly interpreting the meaning of the fourth Amendment.
As for sibling comments that exclaim that this doctrine contradicts the meaning of the Fourth Amendment, consider that very intelligent people (Supreme Court Justices) who are explicitly trained in interpreting laws and especially the Constitution, and who are selected partly for this precise talent, have thought otherwise. In light of this circumstance, it may at least be reasonable that it is you who are not properly interpreting the meaning of the fourth Amendment.
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?
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?
I'm not telling you your position is wrong; I'm telling you to doubt your position.
I myself share, I think, your opinion: this sort of collection ought not to be allowed. However, I am also aware that I have reasons to doubt my position.
I myself share, I think, your opinion: this sort of collection ought not to be allowed. However, I am also aware that I have reasons to doubt my position.
Oh. Ok. Yes, it's worth going to the trouble of reading into exactly why this is the ruling. I am in fact playing armchair judge. I wish i didn't have to, but i've lost faith in my judicial branch on these matters.
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"
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"
> Regardless of the 4th amendment, we have separate laws that protect our communications, much in the same way we protect our medical records.
The ACLU raised some of those separate laws in this case, but those claims were dismissed for procedural reasons, including that Congress had only waived soveriegn immunity with regard to Section 215 orders to allow the recipients of the orders to challenge them, not the subjects of the orders.
There's no need to defend the transgression when no one with the interest in challenging them is permitted to challenge them.
The big problem here is that the entire idea of sovereign immunity -- the embodiment of the idea that the King is above the law, adapted to circumstances where there is no King -- is directly contrary to the concept of government bound by the rule of law.
The ACLU raised some of those separate laws in this case, but those claims were dismissed for procedural reasons, including that Congress had only waived soveriegn immunity with regard to Section 215 orders to allow the recipients of the orders to challenge them, not the subjects of the orders.
There's no need to defend the transgression when no one with the interest in challenging them is permitted to challenge them.
The big problem here is that the entire idea of sovereign immunity -- the embodiment of the idea that the King is above the law, adapted to circumstances where there is no King -- is directly contrary to the concept of government bound by the rule of law.
The parent is referencing the third party doctrine, which the Supreme Court has ruled on. For example, see http://en.wikipedia.org/wiki/Smith_v._Maryland
Of course, there is growing chorus of voices that believe the 3rd party doctrine needs to change, including comments by Justice Sotomayor in the recent US v. Jones case, which I've quoted elsewhere in this thread and are worth reading to get a sense of how some members of the current Supreme Court may vote if and when the Court decides to hear these NSA cases.
Of course, there is growing chorus of voices that believe the 3rd party doctrine needs to change, including comments by Justice Sotomayor in the recent US v. Jones case, which I've quoted elsewhere in this thread and are worth reading to get a sense of how some members of the current Supreme Court may vote if and when the Court decides to hear these NSA cases.
You are correct, both in interpreting me and in providing valuable context to the discussion.
My only point was that people who I would a priori believe to be intelligent, reasonable, and competent have found the 3rd-party doctrine valid. They may not have been "right", in whatever sense I mean that, but they are not a priori wrong, which many of our ancestor comments seem to be assuming.
My only point was that people who I would a priori believe to be intelligent, reasonable, and competent have found the 3rd-party doctrine valid. They may not have been "right", in whatever sense I mean that, but they are not a priori wrong, which many of our ancestor comments seem to be assuming.
This.
I assume all of those records were already being obtained but here is the legal cover they need to do it officially.
The only records that are safe are those encrypted and on your person. Just don't write down the key. Information in your head is still (mostly) protected.
I assume all of those records were already being obtained but here is the legal cover they need to do it officially.
The only records that are safe are those encrypted and on your person. Just don't write down the key. Information in your head is still (mostly) protected.
I feel like this is a huge decision.
Correct me if I'm wrong, but isn't this essentially ruling that everything that you own and store in the 'cloud' doesn't belong to you in the sense that it is not subject to the same protections as other property you own?
I can see this having huge negative consequences for all US 'cloud' business.
Correct me if I'm wrong, but isn't this essentially ruling that everything that you own and store in the 'cloud' doesn't belong to you in the sense that it is not subject to the same protections as other property you own?
I can see this having huge negative consequences for all US 'cloud' business.
Not really: the stipulations in the agreement you make with the cloud provider explicitly cover data rights. Rights to subpoena data is completely different.
You are right about the implications, but this is old news. This is what is known as the "third-party doctrine" and it goes back decades. It is not an entirely unreasonable doctrine, based on the history and text of the 4th amendment. More importantly, Judge Pauley is obligated to follow Supreme Court precedent on this issue. Our system of law is based heavily on "stare decisis", or the idea that we should follow precedent and not keep re-interpreting the law or changing the settled expectations of society.
That said, at least some members of the Supreme Court have expressed concern about how much the 3rd party doctrine guts our privacy rights in the modern age. In a recent case (Jones), the Supreme Court held that attaching a GPS receiver to a car violated the defendant's rights because there was a warrantless intrusion when the device was physically placed on his car. For now, they side-stepped the issue of what would happen if, for example, the police collected all of your movements from a 3rd party like OnStar, which uses your car's built-in GPS. Judge Sotomayer, in a concurring opinion, discussed how the 3rd party doctrine may have to be changed:
"More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”). Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion."
That said, at least some members of the Supreme Court have expressed concern about how much the 3rd party doctrine guts our privacy rights in the modern age. In a recent case (Jones), the Supreme Court held that attaching a GPS receiver to a car violated the defendant's rights because there was a warrantless intrusion when the device was physically placed on his car. For now, they side-stepped the issue of what would happen if, for example, the police collected all of your movements from a 3rd party like OnStar, which uses your car's built-in GPS. Judge Sotomayer, in a concurring opinion, discussed how the 3rd party doctrine may have to be changed:
"More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”). Resolution of these difficult questions in this case is unnecessary, however, because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision. I therefore join the majority’s opinion."
Thank you for educating me with that extremely relevant quote!
Even further: We don't possess the copyright to the algoritms of non-plaintext. So effectively we don't own anything we codify in a proprietary format...
Which is why Richard Stallman was right all along.
I'm with the other poster who intimates that something extremely egregiously bad just happened out of this.
It's just not about the government's structuring anymore. A term in the Fourth Amendment just got emptied of all semantic value ("effects").
They just globally refactored the entire legal system.
It's just not about the government's structuring anymore. A term in the Fourth Amendment just got emptied of all semantic value ("effects").
They just globally refactored the entire legal system.
This ruling is incorrect. Protections under the fourth amendment must apply. Companies must be able to guarantee your data is safe, or you end up with thermostats and laptops in your home that can watch you without your ever knowing. You must know when you are being searched.
Of course 3-hop data imports FROM the phone company databases into NSA databases will still also exist, and have not been limited.
Private storage has been acting as an abused workaround for constitutional law this entire time. That is actually the exact problem with these programs. The "corporate store" is a fake third party, the third party being designed specifically to store the data once pulled from real third parties.
Of course 3-hop data imports FROM the phone company databases into NSA databases will still also exist, and have not been limited.
Private storage has been acting as an abused workaround for constitutional law this entire time. That is actually the exact problem with these programs. The "corporate store" is a fake third party, the third party being designed specifically to store the data once pulled from real third parties.
Sounds like the judge is saying that what third parties can have, the NSA can have.
Sounds like the judge is putting the cloud-storage business to death.
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.
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.
And Snowden is hardening the NSA!
Agreed. (I didn't say it was a bad thing.)
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.
They've already ruled by moving to the cloud the cost savings is greater than the risk of a 3rd party accessing their data.
The cloud providers told their customers that this information was secure from government interference, and that the government had to obtain search warrants in order to even inspect the data. This turned out not to be true, as Snowden demonstrated. This changes the level of risk, and apparently at least some companies are rethinking their cloud commitments. Also, as Target's 40 million customer credit card breaches demonstrate, there is a real cost of not providing your own (good) security and keeping data safe. And that cost may get higher. See http://finance.yahoo.com/news/senator-calls-accountability-t...
The government does need to subpoena AWS etc if they want access to my s3 bucket, or ec2 instances. The NSA siphoning off unencrypted data in transit via backbone providers en masse is entirely different.
The NSA is part of the government. So, some parts of the government need to subpoena, others don't. There's something wrong there.
Huh? The two issues are entirely different.
You wrote: "The government does need to subpoena AWS etc if they want access to my s3 bucket, or ec2 instances"
Do they? Evidently, the NSA, a US government agency, feels that portions of the Patriot Act and related laws (including secret interpretations of such laws) do grant it legal right to collect information that is on any server of any company in the world (including servers physically located in the United States), in order to fight terrorism and other threats to national security, without the need for a subpoena or a warrant. Furthermore, if the NSA if legally allowed to do so, are not the CIA, the Department of Defense, other Homeland Security Agencies and any other information-collecting agencies, whether or not such collection is overt or covert, and whether or not the subject of such collection is aware of such collection or not, also able to make the same argument that such activities would be legal under the same legal justification used by the NSA?
If if this is so, then the statement you made: "The government does need to subpoena AWS etc if they want access to my s3 bucket, or ec2 instances" must be incorrect, or untruthful.
If it is untruthful, then the negation must be truthful, which means the government does not need to subpoena AWS etc if they want access to your s3 bucket or ec2 instance.
The judge in this case essentially confirmed the case of Smith V. Maryland (1979) < http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&in... > (see page 2 of the article we are commenting on) that one does not have expectation of privacy for information provided to a third party. You logged in to amazon systems, and you conveyed information (data) from your system to their system. I see this as no different than providing a phone number to a telephone carrier in order for them to connect the call. You are putting software, data, instructing them to serve it to other parties, as in the case of s3 buckets, or instructing them to run virtual machines to perform computational operations on their computers, as in the case of ec2 instances.
While, as the article mentioned, there are now people in the justice system who may think the 1979 case no longer reflects the realities of electronic communications, it is still the law and will remain so until the lawyers decide it isn't.
To quote from the article:
[begin quote] In one of the concurrences, Justice Sonia Sotomayor wrote that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." [end quote]
So, while the Fourth Amendment is clear about "papers and effects", it is not so clear on data provided to third parties (no matter the purpose, no matter the level of protection of the data the company promised--company promises cannot supercede state or federal law) isn't wide open for government access, in light of what the article states, and in light of the judge's decision in this case.
It seems to me that while sentiments and opinions may lean toward granting more privacy protections to data stored online, the law today isn't there yet.
Do they? Evidently, the NSA, a US government agency, feels that portions of the Patriot Act and related laws (including secret interpretations of such laws) do grant it legal right to collect information that is on any server of any company in the world (including servers physically located in the United States), in order to fight terrorism and other threats to national security, without the need for a subpoena or a warrant. Furthermore, if the NSA if legally allowed to do so, are not the CIA, the Department of Defense, other Homeland Security Agencies and any other information-collecting agencies, whether or not such collection is overt or covert, and whether or not the subject of such collection is aware of such collection or not, also able to make the same argument that such activities would be legal under the same legal justification used by the NSA?
If if this is so, then the statement you made: "The government does need to subpoena AWS etc if they want access to my s3 bucket, or ec2 instances" must be incorrect, or untruthful.
If it is untruthful, then the negation must be truthful, which means the government does not need to subpoena AWS etc if they want access to your s3 bucket or ec2 instance.
The judge in this case essentially confirmed the case of Smith V. Maryland (1979) < http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&in... > (see page 2 of the article we are commenting on) that one does not have expectation of privacy for information provided to a third party. You logged in to amazon systems, and you conveyed information (data) from your system to their system. I see this as no different than providing a phone number to a telephone carrier in order for them to connect the call. You are putting software, data, instructing them to serve it to other parties, as in the case of s3 buckets, or instructing them to run virtual machines to perform computational operations on their computers, as in the case of ec2 instances.
While, as the article mentioned, there are now people in the justice system who may think the 1979 case no longer reflects the realities of electronic communications, it is still the law and will remain so until the lawyers decide it isn't.
To quote from the article:
[begin quote] In one of the concurrences, Justice Sonia Sotomayor wrote that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." [end quote]
So, while the Fourth Amendment is clear about "papers and effects", it is not so clear on data provided to third parties (no matter the purpose, no matter the level of protection of the data the company promised--company promises cannot supercede state or federal law) isn't wide open for government access, in light of what the article states, and in light of the judge's decision in this case.
It seems to me that while sentiments and opinions may lean toward granting more privacy protections to data stored online, the law today isn't there yet.
They do need a subpoena to access your data on AWS, they do not when they are just sniffing it off the wire en masse as it passes thru a third party system. Kind of like you not having privacy when you mail a postcard and expecting that no one should read it.
Also the NSA wouldn't be subpoenaing data from amazon anyway it would be someone like the FBI in this case.
Also the NSA wouldn't be subpoenaing data from amazon anyway it would be someone like the FBI in this case.
> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies."
Kafka would be proud.
Kafka would be proud.
This same justification was used for obtaining personal financial information from bank accounts (see US v. Miller, 1976).
My problem with this line of logic is that it can be applied to anything not owned directly by the person under surveillance. For example, let's say you rent an apartment. Can the government force the landlord to install mics and cameras without telling you? It's not your property, so do all of your fourth amendment protections disappear?
My problem with this line of logic is that it can be applied to anything not owned directly by the person under surveillance. For example, let's say you rent an apartment. Can the government force the landlord to install mics and cameras without telling you? It's not your property, so do all of your fourth amendment protections disappear?
Yes, they can, were it not for other laws explicitly barring them from doing so.
Indeed. Its okay to search your wallet since its not your "paper", like Constitution says. Its okay to search "your" house, since bank owns it, or landlord. Its okay to track your car with no warrant because well its using public roads. Too "bad" Monsato did not win a claim to patent our DNA; in that case you could be stripped down to naked and shoved with a huge anal probe and feds won't have a problem finding judge who would rule no Fourth Amendment was violated.
God Lord -- what is happening to this country???
God Lord -- what is happening to this country???
This system is totally broken. The federal government receives funding to do things that the general public despises, in secret, and then, if caught, the courts decide the legality of it ex post facto.
The U.S. federal government makes far too many decisions that are no longer accountable to the public. This is an extremely dangerous situation to be in, and if we don't have some serious reform done then I believe we are in for a very shitty future.
The U.S. federal government makes far too many decisions that are no longer accountable to the public. This is an extremely dangerous situation to be in, and if we don't have some serious reform done then I believe we are in for a very shitty future.
s/receives/takes from the general public the/
It's not like we have the option to starve this beast of its financial support.
It's not like we have the option to starve this beast of its financial support.
Links[0] to the article without a login; if you aren't subscribing to NY times, and/or don't intend to.
[0] https://www.google.com/search?q=N.S.A.Phone+surveillance+is+...
[1] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&u...
[0] https://www.google.com/search?q=N.S.A.Phone+surveillance+is+...
[1] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&u...
"Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely," Pauley wrote. "The bulk telephony metadata collection program represents the government's counter-punch."
Following this line of reasoning, as technology advances, there is no limit to what data can be gathered in to stop "terrorism."
This ruling highlights the fact that there can be no political solution to ending the U.S. surveillance state as long as those in power believe this or at least find it profitable. The remedy has to be technological. Citizens need to be encrypting all their communications to make mass surveillance prohibitively expensive.
Following this line of reasoning, as technology advances, there is no limit to what data can be gathered in to stop "terrorism."
This ruling highlights the fact that there can be no political solution to ending the U.S. surveillance state as long as those in power believe this or at least find it profitable. The remedy has to be technological. Citizens need to be encrypting all their communications to make mass surveillance prohibitively expensive.
Unreal. for some perspective, from: https://postalinspectors.uspis.gov/contactUs/faq.aspx
"4. Can Postal Inspectors open mail if they feel it may contain something illegal? First-Class letters and parcels are protected against search and seizure under the Fourth Amendment to the Constitution, and, as such, cannot be opened without a search warrant. If there is probable cause to believe the contents of a First-Class letter or parcel violate federal law, Postal Inspectors can obtain a search warrant to open the mailpiece. Other classes of mail do not contain private correspondence, and therefore may be opened without a warrant."
So the phone companies are a third party. The postal service is not.
"4. Can Postal Inspectors open mail if they feel it may contain something illegal? First-Class letters and parcels are protected against search and seizure under the Fourth Amendment to the Constitution, and, as such, cannot be opened without a search warrant. If there is probable cause to believe the contents of a First-Class letter or parcel violate federal law, Postal Inspectors can obtain a search warrant to open the mailpiece. Other classes of mail do not contain private correspondence, and therefore may be opened without a warrant."
So the phone companies are a third party. The postal service is not.
Is a warrant required to read the addresses on the outside of the envelope on First Class mail?
The difference here is: "Can the Postal System provision X-ray systems to scan all mail and hold a database of its scans up to 18 months to prevent unlawful activity?"
FYI, they photograph the outside of every envelope (to/from addresses).
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.
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'm not sure what your point is? The issue in this case is the NSA's collection of so called phone record "metadata", or information about who called whom. They do not appear to store actual recorded phone calls (at least that we know of...). That would seem analogous to the post office storing metadata on letters (to/from/date), but not the contents. It is also analogous in that some argue that you don't have a reasonable expectation of privacy in such metadata.
I have to agree with the other poster.
There are many indications that they are storing content
???[0][1]
I really don't mean to be rude, but how are we not on the same page about this?
"at least that we know of"?
They're not storing [terabytes of metadata]. They're storing [terabytes of content and metadata]. They're being accused of domestic widespread spying (seizing), not domestic widespread profiling (only search).
Perhaps I'm completely just not following, but is there something I'm missing?
[0]: http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-fla...
[1]: http://www.theblaze.com/stories/2013/06/29/greenwald-nsa-can...
I really don't mean to be rude, but how are we not on the same page about this?
"at least that we know of"?
They're not storing [terabytes of metadata]. They're storing [terabytes of content and metadata]. They're being accused of domestic widespread spying (seizing), not domestic widespread profiling (only search).
Perhaps I'm completely just not following, but is there something I'm missing?
[0]: http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-fla...
[1]: http://www.theblaze.com/stories/2013/06/29/greenwald-nsa-can...
Thanks for the links. I honestly have trouble remembering all the revelations at this point, given how many there have been!
However, those links still seem to imply that the NSA does not store the content of domestic phone calls. My point simply was that I believe the law is still crystal clear that the warantless collection and storage of the content of American's phone calls is unconstitutional, just as it would be illegal to x-ray the contents of letters. I can't imagine any court disagreeing. The fact that "metadata" on either may be legal under the third party doctrine or based on "reasonable expectations of privacy" is much less clear due to prior precedent, although I certainly agree with you that it should not be.
(Of course we also now know that the NSA has not been forthright about what they actually do, or what protections are in place to ensure that they can distinguish between domestic and international content. Indeed, it appears that with Internet content there is woefully deficient controls to ensure that domestic content is not stored. There is also another way they constantly chip away at privacy: arguing that there is not a 4th amendment issue until the content is searched, not merely indiscriminately stored.)
However, those links still seem to imply that the NSA does not store the content of domestic phone calls. My point simply was that I believe the law is still crystal clear that the warantless collection and storage of the content of American's phone calls is unconstitutional, just as it would be illegal to x-ray the contents of letters. I can't imagine any court disagreeing. The fact that "metadata" on either may be legal under the third party doctrine or based on "reasonable expectations of privacy" is much less clear due to prior precedent, although I certainly agree with you that it should not be.
(Of course we also now know that the NSA has not been forthright about what they actually do, or what protections are in place to ensure that they can distinguish between domestic and international content. Indeed, it appears that with Internet content there is woefully deficient controls to ensure that domestic content is not stored. There is also another way they constantly chip away at privacy: arguing that there is not a 4th amendment issue until the content is searched, not merely indiscriminately stored.)
Lawful ≠ Constitutional.
The patriot act made all these "legal" - but aren't we waiting for a supreme court decision that states that the entire collection is "unconstitutional"?
The patriot act made all these "legal" - but aren't we waiting for a supreme court decision that states that the entire collection is "unconstitutional"?
What are you talking about? The constitution is the "highest law of the land".
Have you read the opinion, or even the nytimes article posted here?
> Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies.
This judge indeed decided it was constitutional, that is in fact what "lawful" means in this case. A different federal judge in a different district decided it was not. Eventually the Supreme Court will probably decide, especially becaues of the disagreement between two different federal districts, the Supreme Court can make the final determination. (This was in the nytimes article too). But federal district court judges can and do make decisions of constitutional law all the time, it's not only the supreme court that can do that, but the supreme court can overrule the lower courts.
Saying "Lawful ≠ Constitutional" just reveals you don't understand how the US legal system works. And also didn't bother to read the article before commenting on it. You are incorrect.
Have you read the opinion, or even the nytimes article posted here?
> Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies.
This judge indeed decided it was constitutional, that is in fact what "lawful" means in this case. A different federal judge in a different district decided it was not. Eventually the Supreme Court will probably decide, especially becaues of the disagreement between two different federal districts, the Supreme Court can make the final determination. (This was in the nytimes article too). But federal district court judges can and do make decisions of constitutional law all the time, it's not only the supreme court that can do that, but the supreme court can overrule the lower courts.
Saying "Lawful ≠ Constitutional" just reveals you don't understand how the US legal system works. And also didn't bother to read the article before commenting on it. You are incorrect.
Look over the checks & balances in this case[1]. He was ruling that the collection was legal under the patriot act. However, the supreme court has the ability to apply "judicial review" to overturn a law / act / action.
A quick perusal of wikipedia should help.
http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_...
A quick perusal of wikipedia should help.
http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_...
> 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.
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.
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.
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.
> Lawful ≠ Constitutional.
¬Constitutional ⇒ ¬Lawful
The Constitution is the highest law, and that which is not Constitutional is, ipso facto, not lawful.
> The patriot act made all these "legal" - but aren't we waiting for a supreme court decision that states that the entire collection is "unconstitutional"?
The Supreme Court doesn't have unique competency in Constitutional cases, it just has final appellate authority. Every decision by a federal court that something is legal includes, either implicitly or explicitly, a decision that it is Constitutional.
In this case, the Constitutional judgement is explicit, not implicit.
¬Constitutional ⇒ ¬Lawful
The Constitution is the highest law, and that which is not Constitutional is, ipso facto, not lawful.
> The patriot act made all these "legal" - but aren't we waiting for a supreme court decision that states that the entire collection is "unconstitutional"?
The Supreme Court doesn't have unique competency in Constitutional cases, it just has final appellate authority. Every decision by a federal court that something is legal includes, either implicitly or explicitly, a decision that it is Constitutional.
In this case, the Constitutional judgement is explicit, not implicit.
And when that court decides that it is all perfectly constitutional? That is the outcome that I expect, at this point. I think it is better to rely on ourselves to protect our privacy, where possible.
I can't imagine how the Justice Sotomayor could have been any more clear in this issue:
When Ginsburg, Breyer, and Kagan feel surveillance is so obviously unconstitutional as to provide an even narrower basis than actual trespassing, and Sotomayor writes a separate opinion for the sole purpose of conveying she'd be the 4th vote, I find it hard to imagine how any judge could uphold this surveillance in good faith.
I would not assume that all information voluntarily disclosed
to some member of the public for a limited purpose is,
for that reason alone, disentitled to Fourth Amendment protection.
[citations omitted]
Resolution of these difficult questions in this case is unnecessary,
however, because the Government's physical intrusion on Jones' Jeep
supplies a narrower basis for decision.
When Ginsburg, Breyer, and Kagan feel surveillance is so obviously unconstitutional as to provide an even narrower basis than actual trespassing, and Sotomayor writes a separate opinion for the sole purpose of conveying she'd be the 4th vote, I find it hard to imagine how any judge could uphold this surveillance in good faith.
For the lazy, here's the full text of the opinion on Casetext: https://casetext.com/case/aclu-v-clapper/
Who cares what is legal/illegal. That's missing the point. Under the PATRIOT Act raping and torturing infants is legal[1]. When corrupt politicians make corrupt laws, the only thing that should matter is what is morally correct. Or to quote John Oliver of the Daily Show,
> I think you're misunderstanding the perceived problem here, Mr. President. No one is saying you broke any laws. We're just saying it's a little bit weird that you didn't have to.
[1] probably.
> I think you're misunderstanding the perceived problem here, Mr. President. No one is saying you broke any laws. We're just saying it's a little bit weird that you didn't have to.
[1] probably.
I understand that you're angry and frustrated but don't make arguments like this. Do you think you're convincing anybody with these preposterous statements? Do you think someone who is unconvinced that the PATRIOT Act is bad would read what you are saying and be astonished at the idea that it makes raping and torturing infants legal, then be spurred to change their mind and take action to oppose it?
There's no need to make up bullshit about the PATRIOT Act, to exaggerate its effects, or to engage in histrionics. Those things weaken your case in the eyes of the people who you most want to convince. Don't exaggerate, don't use hyperbole, don't lie, don't be immature, make the strongest case possible and back it with facts.
There's no need to make up bullshit about the PATRIOT Act, to exaggerate its effects, or to engage in histrionics. Those things weaken your case in the eyes of the people who you most want to convince. Don't exaggerate, don't use hyperbole, don't lie, don't be immature, make the strongest case possible and back it with facts.
Astonishingly, I think you are incorrect. Apparently there are serious figures who think the torturing of infants is in fact legal:
https://en.wikipedia.org/wiki/John_Yoo#Regarding_torture_of_...
> "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress—that is what you wrote in the August 2002 memo", to which Yoo replied "I think it depends on why the President thinks he needs to do that."
https://en.wikipedia.org/wiki/John_Yoo#Regarding_torture_of_...
> "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress—that is what you wrote in the August 2002 memo", to which Yoo replied "I think it depends on why the President thinks he needs to do that."
Thanks for the downvote. Didn't realize I was on reddit.
> Don't exaggerate, don't use hyperbole, don't lie, don't be immature,
I did none of those things. I used a device called humor. Perhaps you have none. I'm sorry. I did quote the Daily Show, after all.
Thanks to you, InclinedPlane, I will never make another PATRIOT Act joke. Thank you for informing me on how to use my Freedom Speech.
> Don't exaggerate, don't use hyperbole, don't lie, don't be immature,
I did none of those things. I used a device called humor. Perhaps you have none. I'm sorry. I did quote the Daily Show, after all.
Thanks to you, InclinedPlane, I will never make another PATRIOT Act joke. Thank you for informing me on how to use my Freedom Speech.
HN does NOT do humour.
Well, unless its embedded in code, then its like fecking hilarious.
Well, unless its embedded in code, then its like fecking hilarious.
Sure, Your Honor, and what about JSOC assassinating American citizens. Why even bother with warrants or legal process the rest of the time? Throw it all away. Just let the executive branch do whatever the fuck they like (contrary to the intention of separations of powers) with their own mercenary army that's beyond the law. The only problem then is why should anyone respect the law if said executive branch doesn't?
Hopefully SCOTUS will say something else, but I'm not holding my breath. Eventually the content of the phone calls will also be found to be not private as we are using a 3rd party to communicate, so in the end all electronic communication will thus be available for recording and interpretation legally by the government. What kind of world that will be is unknown, but it won't be one anyone wants to live in.
[deleted]
I am curious about what % of Americans consider this a real issue vs those who just don't care.
Of course HN is a tech community, understands the repercussions and it's very sensitive on the matter.
I am asking because we're possibly facing a huge (maybe the biggest) gap between voters and government here.
Of course HN is a tech community, understands the repercussions and it's very sensitive on the matter.
I am asking because we're possibly facing a huge (maybe the biggest) gap between voters and government here.
If that's how the law works - guess it's time to abandon all cloud-based services. There's seemingly zero protection for anything hosted by a 3rd party.
Even further: it seems like we have to abandon all proprietary formats. What is a record is not something you technically own. Your idea or concept is codified in the record.
What's that saying?: Files are a myth.
What's that saying?: Files are a myth.
Reminds me of this quote from our favorite space saga:
http://www.youtube.com/watch?v=nz20lu2AM2k
http://www.youtube.com/watch?v=nz20lu2AM2k
Why does anybody care what the judge thinks? Use Tor and crypto and tell them to fuck themselves.
Do we, as the creators of this data, not retain IP rights over it? Are we unable to use the laws written by the other big cartel against the promiscuous use of it?
Done.
> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies."
Okay, so then when I download an MP3 it's not theft because I didn't actually deprive the artist of their source files.
Okay, so then when I download an MP3 it's not theft because I didn't actually deprive the artist of their source files.
Yeah haha! Let's at least make the system consistent.
To be fair, then I'd also have to let the NSA keep records from "third parties", since I'm a Kopimist of sorts.
Actually, I'm OK with the NSA having my data. I'm not OK with them compelling third parties to HAND OVER data (e.g. PRISM) but I'm fine with them holding information that they gathered through other means as long as those means were acceptable. Tapping fiber optic cables is a gray line here.
All good as long as they allow me to evade them by taking privacy into my own hands. I want to be able to use, export, and import any encryption technology that I see fit.
Let's play ball.
To be fair, then I'd also have to let the NSA keep records from "third parties", since I'm a Kopimist of sorts.
Actually, I'm OK with the NSA having my data. I'm not OK with them compelling third parties to HAND OVER data (e.g. PRISM) but I'm fine with them holding information that they gathered through other means as long as those means were acceptable. Tapping fiber optic cables is a gray line here.
All good as long as they allow me to evade them by taking privacy into my own hands. I want to be able to use, export, and import any encryption technology that I see fit.
Let's play ball.
They're totally exploiting the fact that the legal system is so huge, no one organization can keep track of all of these conceptual inconsistencies.
Where's http://groklaw.net when you need it?
Where's http://groklaw.net when you need it?
I disagree. This is so far over the line into obvious bullshit that anyone with a 6th grade education can smell the government's Schadenfreude.
If anything they are exploiting the fact that the public has become docile and likely won't fight back, even when they know without a doubt they are being lied to by the people they pay to protect them.
If anything they are exploiting the fact that the public has become docile and likely won't fight back, even when they know without a doubt they are being lied to by the people they pay to protect them.
Sadly, groklaw.net apparently went down exactly because it was unable to insure the privacy of its communications once it discovered the extant of the NSA data collection.
So if we are unable to communicate privately, is there any privacy left?
So if we are unable to communicate privately, is there any privacy left?
No, Groklaw is a freak show which used a flimsy excuse to shut down for reasons unknown.