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Rand Paul: NSA Routinely Monitors Americans’ Communications Without Warrants

542 points by remx 10y ago

exabrial 10y ago
My opinion on hn was unpopular when I spoke out against Apple during the San Bernardino affair, because the FBI seemed to have the proper DOJ signoff and I think the motivation was obvious. However this is unacceptable. We are a society of laws, and one of them is due process. Spying likely started during the Bush years, and Obama somehow escaped scrutiny for continuing the program (even with Snowden leaks). Hopefully it finally gets shut down during the Trump administration, even if merely because the media seems far less tolerant of his transgressions.
- mattnewton 10y ago
  Your opinion was probably unpopular because DOJ signoff does not make good encryption with a master key any more technologically possible, and HN is a very pro-encryption crowd as a technical means to privacy. The disagreement for me is not about the warrant process but about why this warrant would be different. I think the warrant should not have been granted and needed to be fought in court. And the great thing about the warrant was, since it notified the defendant and could be eventually made public we could have this debate. I think (hope?) we are all totally on the same page about warrants being necessary. I wouldn't hold your breath about due process coming back under trump, media intolerance hasn't changed a lot. What has is direct legal action on behalf of citizens, from states and agencies like the ACLU. I urge everyone to contribute to the EFF, and the ACLU, and let them, and your state legislature know this is a key issue to you.
  - luxuryballs 10y ago
    I've always felt like the intent of a warrant was to prove to ME that the police were authorized to search my property. I'm thinking back to when people had to physically show up and be allowed entry into your estate. If my feeling on warrants match up with the true intention of the law (as it was originally written) then no-knock warrants are suspect as well as any kind of secret warrant to tap your phone/computer. I think even with warrants we still have an issue, because what's really stopping them from getting a warrant in this day and age?
    - mattnewton 10y ago
      The intent of the warrant is to provide a check on the power of the executive branch, where hopefully the jusdge's incentives are divorced enough from the police's so that they can make a decision that is in the best interests of society and not just the police.
    - pdkl95 10y ago
      The 4th Amendment doesn't just require "a warrant". The English government was using "writs of assistance", a type of general warrant that granted broad powers. As a protection against that type of easily-abused power, the founders created a set of requirements that limit the scope of allowed warrants. ... 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. While a judge might deny some extremely bad requests for a warrant, the point isn't about a judge denying warrants or proving anything to anyone. That kind of legal arguing can happen later in an actual court. Instead, warrants - as allowed under the 4th Amendment - establish the limits of power. The violation of personal rights is allowed, because of specific reason ("probable cause"), in a particular place, limited to specified people or things. These limitations slow down the application of power and (hypothetically) create opportunities to fight back when authority is exceeded. > no-knock warrants I suspect those are constitutional when the are properly targeted to a specific event/person/etc. The tactics used to implement the search isn't limited by the warrant. > secret warrant That's may be a problem, but it may depend on the specifics. > what's really stopping them from getting a warrant Generally nothing, but that's the wrong question. If police are making many requests for specific warrants, that's the warrant system working as intended. However, playing word games to pretend wiretapping everybody isn't "seizing" data until an agent looks at it is exactly the type of general warrant that is banned by the 4th Amendment.
      - fnordfnordfnord 10y ago
        >I suspect those are constitutional when the are properly targeted to a specific event/person/etc. The tactics used to implement the search isn't limited by the warrant. Almost every no knock is executed in such a way that 'proper' targeting is impossible. A warrant cannot magically excuse police from their improper conduct. It took a deaf dumb blind and ignorant bench for that.
- JumpCrisscross 10y ago
  > the FBI seemed to have the proper DOJ signoff [in San Bernardino] Due process means both sides get to argue their cases in front of a court. Apple chose to do that [1]. Presumably, the FBI figured it would lose and so dropped the case [2]. Apple contesting an executive branch order in a court is different from directors and employees at the NSA deciding they can act in defiance of our courts and laws. [1] https://mobile.nytimes.com/2016/02/18/technology/apple-timothy-cook-fbi-san-bernardino.html?referer=https://duckduckgo.com/ https://mobile.nytimes.com/2016/02/18/technology/apple-timot... [2] https://www.theguardian.com/technology/2016/mar/28/apple-fbi-case-dropped-san-bernardino-iphone https://www.theguardian.com/technology/2016/mar/28/apple-fbi...
- uptown 10y ago
  "Hopefully it finally gets shut down during the Trump administration, even if merely because the media seems far less tolerant of his transgressions." I haven't seen any indication that either party is looking to end these practices. It's hard to shut down "big brother" when it's your turn to play big brother. Furthermore, this doesn't exactly seem the the administration that's likely to dial-back intrusion into people's personal lives: "U.S. House bill threatens employees with fines if they refuse to undergo genetic testing" http://www.bizjournals.com/sanfrancisco/news/2017/03/13/genetic-testing-bill-worker-wellness.html http://www.bizjournals.com/sanfrancisco/news/2017/03/13/gene...
- nerdponx 10y ago
  Haven't we been spying on our own citizens since WWII? Or at least since J Edgar Hoover and thr McCarthy era?
  - datatan 10y ago
    McCarthy didn't spy on anyone. He was a Senator not an intel agent. Additionally, McCarthy has been proven right. His estimate was that there were around 20 Soviet agents that had infiltrated the US government at the highest levels. Once the USSR fell and their documents became public it was proven they had well over 200. McCarthy was right but people still tarnish his name out of spite. Hoover was an SOB far worse than McCarthy ever could have been but is still revered by many in the intel services. His name still adorns the FBI HQ building and other than accusations of cross dressing, no ones dug in to truly uncover the evil things that man did.
    - wfo 10y ago
      McCarthy's name isn't being tarnished out of spite. It's because he started a disgusting witch hunt with blacklists, demagoguery, etc to hunt down anyone who committed thoughtcrime (i.e. communist sympathy) that ruined the lives of many, many innocent people and turned the country down a very dark path. The fact that there were soviet agents in the government is mostly tangential. It was because he went around saying there's a secret list of enemies, and that anyone who is left of center is probably one of them, that he was so horrible. It was because he made disgusting personal attacks and aired the dirty laundry of anyone who crossed him. It was because of his deep hatred for homosexuals and anyone who wasn't right wing. He was one of the more vile characters in US history. J. Edgar Hoover was much worse, I'll concede; Hoover was actually a traitor, the worst in US history, and should have been jailed or executed. But McCarthy deserves every bit of tarnishing he gets, and a whole lot more that he doesn't get because people have forgotten.
    - deleted 10y ago
      [deleted]
    - vacri 10y ago
      Obama didn't spy on anyone, he was a president, not an intel agent. Bush didn't invade Iraq, he was a president, not a soldier.
- UnpossibleJim 10y ago
  Not that I endorse this reality, but we have been, for quite a long time, a society that has one set of laws for certain segments of society and another set for disparate segments of society.
- joering2 10y ago
  > Hopefully it finally gets shut down during the Trump administration Are you insane?? Didn't you hear many of Trump speeches saying that NSA doesn't have enough power??? And that we need to monitor more, especially certain groups but pretty much everyone as well? And that companies like Apple should be forced to decrypt or have tools to decrypt their own technology. Bush made surveillance wanted by public fear because of 911. Obama made it further legal by not doing anything against it and praising NSA as "your friendly neighbor". Trump is here to make it more invasive and to make it stay for good!
- anigbrowl 10y ago
  Spying likely started during the Bush years It got worse during the Bush administration, but government surveillance isn't a new thing. Hopefully it finally gets shut down during the Trump administration Not sure if serious
  - wallace_f 10y ago
    He must be kidding. Trump has said repeatedly "I want surveillance..."
exabrial 10y ago
My opinion on hn was unpopular when I some out against Apple during the San Bernardino affair, because the FBI seemed to have the proper DOJ signoff and I think the motivation was obvious. However this is unacceptable. We are a society of laws, and one of them is due process. Spying likely started during the Bush years, and Obama somehow escaped scrutiny for continuing the program (even with Snowden leaks). Hopefully it finally gets shut down during the Trump administration, even if merely because the media seems far less tolerant of his transgressions.
willvarfar 10y ago
Why aren't politicians and their staff using end-to-end encrypted VOIP?
- mysterypie 10y ago
  The same reason you aren't. The same reason PGP has been around for 25 years and only a miniscule fraction of people ever encrypt their email. I.e., it's because none of this privacy technology is built-in as the default into our communications infrastructure. Therefore, for the average person (and even for privacy-conscious techies), it is inconvenient and difficult, and you have to convince the party you're talking with to also install and configure something that is inconvenient and difficult for them. I'm convinced that the question of why end-to-end crypto isn't the default is a political one; i.e., there is pressure not to do it.
  - willvarfar 10y ago
    Politicians and their staff should not be ignorant; they ought be very acutely aware of the risks and that they are a target, and ought be highly motivated to fix this for themselves by securing their own systems.
  - dmix 10y ago
    Shifting people onto E2E encrypted VOIP as we move off analog phone lines would be far easier than moving peoples existing email to PGP. Much like how it was pretty seemless for WhatsApp to turn it on. Email is a special case because of the various semantics like searching and federated clients.
  - remx 10y ago
    There's a big discussion about PGP here and why so many fail to use it: https://news.ycombinator.com/item?id=13114538 https://news.ycombinator.com/item?id=13114538 Some of the comments are worth reading if not for the sheer size of the discussion. It could take an afternoon or two to fully digest that thread. The comments are in response to this: https://blog.filippo.io/giving-up-on-long-term-pgp/ https://blog.filippo.io/giving-up-on-long-term-pgp/
  - 10y ago
mgamache 10y ago
The problem with the press coverage of this topic is a lack of personalization. What does the government know about me and why is that important? I think most US citizens would be shocked to learn that most of our personal information is accessible without a warrant. (phone records / bank account / email / web history / phone location data / Car location / Purchase history / Facebook etc....). Also, how much the government can interpret from that information.
- joshontheweb 10y ago
  Unfortunately I have found that most people aren't shocked when I explain this to them. Most commonly they just say That their life is boring and they've got nothing to hide. Additionally they think that it may be worth the invasion if we can catch the 'bad guys'. I'm not sure what would need to happen to change this sentiment on a large enough scale to get people motivated into political action.
  - snerbles 10y ago
    We're fighting an uphill battle against fear peddled by various media outlets to attract viewers and clicks. Fear that is useful to the surveillance apparatus.
  - VA3FXP 10y ago
    The fight against apathy is unforgiving, relentless, and it only works in small doses. As long as the masses have their opiate of choice nothing will ever change.
  - jacquesm 10y ago
    > I'm not sure what would need to happen to change this sentiment on a large enough scale to get people motivated into political action. A couple of razzias where they or their loved ones were taken to gas chambers should do the job. But we have such short memories. In just about every Dutch town, usually near the railway station there is a monument documenting just that and it still does not seem to make much of a difference.
1001101 10y ago
It's interesting that the article mentions then Sen. Obama's change of heart re: the FISA Amendments Act - saying he would filibuster it and then voting for it. I wonder what led to his change of heart. I haven't heard that explained.
- andy_ppp 10y ago
  Probably that he was running for president and wanted to appear on the side of the security services? Then when in office it clearly must be a useful tool to start build profiles of everyone and be able to mine their activities.
  - grandalf 10y ago
    Exactly. I think it also underscores Obama's unprincipled, opportunistic nature. This is not a criticism of Obama, I think it applies to all presidents, and likely most elected officials worldwide.
    - ak4g 10y ago
      Pragmatism is a principle.
      - grandalf 10y ago
        > Pragmatism is a principle. Sure, but toward what end? Himself being elected? Surely most politicians are of the opinion that simply by having their butt in the chair in the office, good has been done. This sort of reasoning is considered sociopathic in most other contexts.
        ak4g 10y ago
        Towards any end at all. IRL, there are no points for effort, and certainly no points for purity of intent. The proof is in the pudding. And so, no, I don't see good/effective politicians as having some quality that would otherwise have them be considered sociopaths. I expect a competent elected leader to behave along the lines of what I'd expect from a competent co-worker.
Darthy 10y ago
Of course the other 7.2 billion people in the world are also routinely monitored, but since this is an action on foreign territory, these 7.2 billion people have no recourse against this practice.
- willstrafach 10y ago
  I hear this brought up a lot but do not see how it would be an issue. This is part of the job of an intelligence agency. Something often ignored: The intelligence agencies of other countries are likely to be doing the same thing. It has already been shown that BND and GCHQ engage in similar behavior with regards to upstream and satellite signals interception, but it seems foolish to assume that other countries are not engaging in this type of intelligence collection.
  - rbg246 10y ago
    No i don't think it is the job of an intelligence agency to spy on the rest of the world's citizens and i think its a terrible idea to normalise this behaviour as such or to somehow make it sound ethical. The everyone else is doing it defence does not change the unethical nature of the action.
    - anigbrowl 10y ago
      Yes it is. Otherwise you're putting yourself at a strategic disadvantage. It's an inevitable outcome of the technology being available. We have great weather satellites now partly because knowing the weather and observing agriculture in other countries makes us economically competitive. If a technology exists it's going to be used, within the normal variations of supply and demand. You might prefer to abstain from using a particular technology, but there's also the possibility that it will get used on you. From a governmental perspective, a country has a requirement to be as aware of its political environment as it can for the sake of its citizens' safety.
    - willstrafach 10y ago
      I am curious how you would define "spying" though. - Should NGA not use imaging satellites to keep track of national disasters and environmental issues? - Should NGA not use imaging satellites for nuclear non-proliferation monitoring? - Should DoD not have digital sensors at the egress points of their networks to gather information on attacks by foreign actors? - Should NSA not monitor the communications of foreign adversaries to determine their intentions on the battlefield? - Should NSA not investigate adversarial nations launching attacks and information-gathering operations against DoD infrastructure as well as US private industry? - Should our military intelligence branches not monitor weapons development of adversarial nations (using ELINT measurements, imaging satellites, along with other forms of intelligence gathering to determine their offensive/defensive capabilities) - Should we not use SIGINT sensors and capabilities to detect an incoming attack on the USA or an ally? - I can add a whole lot more to this list if interested. The act of "spying" is far more than just SIGINT collection and processing of internet data. Can you elaborate on what you specifically take issue with? Do you take issue with all intelligence collection as a whole, or specifically SIGINT collection, or more specifically SIGINT collection of internet data or phone records? I am curious and like to keep an open mind about these things, so am being genuine when I ask this.
shiftoutbox 10y ago
I hear Rand Paul is a fake ophthalmologist.
lordnacho 10y ago
I have a question about this whole government intrusion thing. Perhaps a lawyer can explain: Suppose the government gets a warrant to wiretap some guy. He happens to get a call from his lawyer, and the government overhears that he's committed some crime. Now there's an attorney/client privilege preventing you from directly producing the tape (is there?) so you can't just do that. But the fact that you've heard this means as an investigator you'll probably pursue this guy much more aggressively, and perhaps gather other evidence rather than give up. How does that work?
- ealexhudson 10y ago
  If you gather other evidence, it's called "parallel construction" and it's A Thing. It doesn't just apply to wire-taps; all sorts of evidence would be inadmissible, but of course once investigators know something there are often other ways of figuring out a means to get evidence (or, at least, getting to the point you can justify a warrant).
- ascagnel_ 10y ago
  Parallel construction: https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction
- shamwow 10y ago
  TLDR: use illegal methods to find a crime, use that to make up a way to "discover" it legally. Present to a judge, easy conviction.
- matthewbauer 10y ago
  I think the short answer is that they could get away with it if they kept it secret, but if the courts found out about it that alone could be enough to through the entire case. > The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes. [1]: https://www.nytimes.com/2014/02/16/us/eavesdropping-ensnared-american-law-firm.html https://www.nytimes.com/2014/02/16/us/eavesdropping-ensnared...
caycep 10y ago
Dana Priest and William Arkin's project documents a lot of the issues w/ the intelligence bureaucract.... http://projects.washingtonpost.com/top-secret-america/ http://projects.washingtonpost.com/top-secret-america/
strictnein 10y ago
One feels that Paul doesn't quite have a full grasp of the techniques he's describing (and it sounds like he's conflating a lot of stuff that Snowden leaked), but that headline sure gets the clicks, so let's go with it. Especially since it's Greenwald, who uses Paul's jumbled mess of an explanation to burn everything down. Doesn't even make sense what he's proposing: Instead of getting a warrant to record the American, the NSA targets the foreigner? But what if they call someone else overseas? Or call people in the US? Seems like a really suboptimal way of targeting someone. And a low-level employee could unmask the caller? Sure, and that could also lead to that employee getting fired and prosecuted. I can access lots of data at work, but I would be shown the door and possibly sued if I did so.
- rosser 10y ago
  Paraphrasing Donald Rumsfeld, "You spy on your own people within the legal regime you've got, not the one you wish you had."
  - strictnein 10y ago
    You can legally tap phones of Americans in a far less convoluted way than what Rand Paul attempted to describe.
youdontknowtho 10y ago
It's a mistake to empower and legitimize the right. Rand Paul is an extremist on issues of life and limb. Just because he's "good" on this issue doesn't change that. In fact, it makes it more likely that he will be afforded the position of a moderate because he went against his party on this issue, when he is just as extreme as anyone in his party on any others. It is something that Democrats will need to understand at some point. You have to deny them victories, even on issues that you support. It sucks but the right has outsized influence over the country because of party discipline like I've just described.
- sand500 10y ago
  >Democrats will need to understand at some point. You have to deny them victories, even on issues that you support. Putting party warfare comjng first before the actual issue is the reason why politics is such a shitshow.
  - youdontknowtho 10y ago
    Then how are the republicans so ducking successful? Like it or not our system is controlled by two parties. One of them is opposed to science and democracy. The other is an imperfect group of competing interests. If you want things to change you have to deal with the framework we have. Not choosing is a choice for the side that aims to empower the already powerful. But you look great on that high horse, cowboy. Your cool disinterest and disdain for the world as is must make your apathy relatively painless. Getty up!
- guelo 10y ago
  This is not a Democrat/Republican issue. Obama and Bush both expanded these programs with their party's blessing. There are pockets of civil liberty defenders in both parties.
  - Bartweiss 10y ago
    It should have become pretty clear that this wasn't partisan when an outgoing Obama helped ramp up surveillance in full knowledge of who was next. Seeing people treat this as a D/R fight when Udall and Feinstein are viciously opposed to one another is bizarre to me.
grandalf 10y ago
While this article offers the clearest presentation of the issue I've seen to date, I think the key point (which the article points out halfway in) is that the truth of Trump's claim that he was wiretapped does not depend on the presence or absence of a FISA warrant. The system is designed to be used without warrant, so those harping on the detail of whether or not a warrant existed that had Trump in scope are not focused on the core issue. It would be nice if all surveillance could be traced back to FISA warrants, but Snowden's revelations make it clear this is absolutely not the case.
- unityByFreedom 10y ago
  > It would be nice if all surveillance could be traced back to FISA warrants, but Snowden's revelations make it clear this is absolutely not the case You mean, since the NSA collects data on millions of Americans? If that's the type of monitoring you mean, Trump's complaint holds no more water than an average Joe claiming "Obama ordered a wiretap on me". More like, "Obama continued policy begun by previous administrations to enable spying to protect national security.". It's the primary function of the NSA.
  - grandalf 10y ago
    > If that's the type of monitoring you mean Not at all. I mean that any number of people inside the intelligence organizations could have opted to "wiretap" Trump and there would have been no audit trail and no warrant. > holds no more water than an average Joe claiming "Obama ordered a wiretap on me" For what it's worth though, I do think the lowly "average Joe" you mention does deserve to be quite irate about his fourth amendment rights being thrown away.
    - willstrafach 10y ago
      > Not at all. I mean that any number of people inside the intelligence organizations could have opted to "wiretap" Trump This is not true. The system will not allow you to just query a US Person, and will automatically flag such requests for review if you try to do so. Even if an analyst conducted "reverse targeting" (Querying a foreign person who the US Person was communicating with), the US Person's information within the intercept(s) is automatically minimized and specific approval would be needed to de-anonymize it, including solid proof that the US Person was actually acting as a foreign adversary, such as a spy. I have no ability to argue that there is not a conspiracy involving multiple people in NSA approving these and OGC turning a blind eye to it and the senate intel committee ignoring it and so on, that is not impossible I suppose, but the reality is very far from simply having the ability to go ahead and wiretap Trump with ease. > and there would have been no audit trail and no warrant. There is absolutely an audit trail, including non-repudation for the analyst who performed the query (They must use their smartcard or "PKI"). This is good, because if you do believe that something awry is going on, you can push for a very specific cause: Put together an independent committee of representatives, have them go through the security clearance process (for those who have not already done so) to be read-in on any necessary SCI compartments to review the data, and conduct a thorough investigation regarding the audit trails of any query regarding Trump and/or associates. I personally find this to be far-fetched, but it is at least a tangible action which you and anyone who shares the belief can push for.
emehrkay 10y ago
Where exactly does Paul stand on issues of privacy like this? You'd think we is against it, but he is also okay with ISPs selling your browsing history. https://arstechnica.com/tech-policy/2017/03/gop-senators-new-bill-would-let-isps-sell-your-web-browsing-data/ https://arstechnica.com/tech-policy/2017/03/gop-senators-new...
- mi100hael 10y ago
  Whether or not you agree, there is a legitimate & legal distinction between a private corporation and a publicly-funded government organization.
  - newjersey 10y ago
    So in my mind there are two parts to publicly funded projects. One is whether the spending of funds is worth it and another is whether the people have a choice. We think that by definition that when private companies have programs, they're not spending public money but I'd argue (somewhat controversial I agree) that any tax break is public money. Also the second part of whether participation is mandatory. I'd say if an ISP has a de facto Monopoly in a market, then we could say participation is mandatory. I hope this part is less controversial.
  - emehrkay 10y ago
    Line gets fuzzy when ISPs, in most part, are government-backed monopolies (I'm "lucky" because both Verion and Comcast covers my area)
    - datatan 10y ago
      He is against them being government backed monopolies. According to him, and I agree, we should be able to switch ISP's at will. If we do not want an ISP selling our data we should have the freedom to move to one that doesn't.
      - zachsnow 10y ago
linkregister 10y ago
The author of this article did a poor job of refuting Susan Hennessey's statement that reverse targeting is unlawful and not practiced. Taking an excerpt of a Hayden speech and then highlighting his statement that "communications with one end in the U.S." are the most interesting doesn't really prove this. The author would have a stronger argument by sticking to the facts. Searches of U.S. persons without a warrant are directly at odds with the language in the 4th amendment of the Constitution, full stop.
wallace_f 10y ago
The world would be a much worse place without people like Greenwald.

542 points by remx 10y ago

My opinion on hn was unpopular when I spoke out against Apple during the San Bernardino affair, because the FBI seemed to have the proper DOJ signoff and I think the motivation was obvious. However this is unacceptable. We are a society of laws, and one of them is due process. Spying likely started during the Bush years, and Obama somehow escaped scrutiny for continuing the program (even with Snowden leaks). Hopefully it finally gets shut down during the Trump administration, even if merely because the media seems far less tolerant of his transgressions.

mattnewton 10y ago
Your opinion was probably unpopular because DOJ signoff does not make good encryption with a master key any more technologically possible, and HN is a very pro-encryption crowd as a technical means to privacy. The disagreement for me is not about the warrant process but about why this warrant would be different. I think the warrant should not have been granted and needed to be fought in court. And the great thing about the warrant was, since it notified the defendant and could be eventually made public we could have this debate. I think (hope?) we are all totally on the same page about warrants being necessary. I wouldn't hold your breath about due process coming back under trump, media intolerance hasn't changed a lot. What has is direct legal action on behalf of citizens, from states and agencies like the ACLU. I urge everyone to contribute to the EFF, and the ACLU, and let them, and your state legislature know this is a key issue to you.
- luxuryballs 10y ago
  I've always felt like the intent of a warrant was to prove to ME that the police were authorized to search my property. I'm thinking back to when people had to physically show up and be allowed entry into your estate. If my feeling on warrants match up with the true intention of the law (as it was originally written) then no-knock warrants are suspect as well as any kind of secret warrant to tap your phone/computer. I think even with warrants we still have an issue, because what's really stopping them from getting a warrant in this day and age?
  - mattnewton 10y ago
    The intent of the warrant is to provide a check on the power of the executive branch, where hopefully the jusdge's incentives are divorced enough from the police's so that they can make a decision that is in the best interests of society and not just the police.
  - pdkl95 10y ago
    The 4th Amendment doesn't just require "a warrant". The English government was using "writs of assistance", a type of general warrant that granted broad powers. As a protection against that type of easily-abused power, the founders created a set of requirements that limit the scope of allowed warrants. ... 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. While a judge might deny some extremely bad requests for a warrant, the point isn't about a judge denying warrants or proving anything to anyone. That kind of legal arguing can happen later in an actual court. Instead, warrants - as allowed under the 4th Amendment - establish the limits of power. The violation of personal rights is allowed, because of specific reason ("probable cause"), in a particular place, limited to specified people or things. These limitations slow down the application of power and (hypothetically) create opportunities to fight back when authority is exceeded. > no-knock warrants I suspect those are constitutional when the are properly targeted to a specific event/person/etc. The tactics used to implement the search isn't limited by the warrant. > secret warrant That's may be a problem, but it may depend on the specifics. > what's really stopping them from getting a warrant Generally nothing, but that's the wrong question. If police are making many requests for specific warrants, that's the warrant system working as intended. However, playing word games to pretend wiretapping everybody isn't "seizing" data until an agent looks at it is exactly the type of general warrant that is banned by the 4th Amendment.
    - fnordfnordfnord 10y ago
      >I suspect those are constitutional when the are properly targeted to a specific event/person/etc. The tactics used to implement the search isn't limited by the warrant. Almost every no knock is executed in such a way that 'proper' targeting is impossible. A warrant cannot magically excuse police from their improper conduct. It took a deaf dumb blind and ignorant bench for that.
JumpCrisscross 10y ago
> the FBI seemed to have the proper DOJ signoff [in San Bernardino] Due process means both sides get to argue their cases in front of a court. Apple chose to do that [1]. Presumably, the FBI figured it would lose and so dropped the case [2]. Apple contesting an executive branch order in a court is different from directors and employees at the NSA deciding they can act in defiance of our courts and laws. [1] https://mobile.nytimes.com/2016/02/18/technology/apple-timothy-cook-fbi-san-bernardino.html?referer=https://duckduckgo.com/ https://mobile.nytimes.com/2016/02/18/technology/apple-timot... [2] https://www.theguardian.com/technology/2016/mar/28/apple-fbi-case-dropped-san-bernardino-iphone https://www.theguardian.com/technology/2016/mar/28/apple-fbi...
uptown 10y ago
"Hopefully it finally gets shut down during the Trump administration, even if merely because the media seems far less tolerant of his transgressions." I haven't seen any indication that either party is looking to end these practices. It's hard to shut down "big brother" when it's your turn to play big brother. Furthermore, this doesn't exactly seem the the administration that's likely to dial-back intrusion into people's personal lives: "U.S. House bill threatens employees with fines if they refuse to undergo genetic testing" http://www.bizjournals.com/sanfrancisco/news/2017/03/13/genetic-testing-bill-worker-wellness.html http://www.bizjournals.com/sanfrancisco/news/2017/03/13/gene...
nerdponx 10y ago
Haven't we been spying on our own citizens since WWII? Or at least since J Edgar Hoover and thr McCarthy era?
- datatan 10y ago
  McCarthy didn't spy on anyone. He was a Senator not an intel agent. Additionally, McCarthy has been proven right. His estimate was that there were around 20 Soviet agents that had infiltrated the US government at the highest levels. Once the USSR fell and their documents became public it was proven they had well over 200. McCarthy was right but people still tarnish his name out of spite. Hoover was an SOB far worse than McCarthy ever could have been but is still revered by many in the intel services. His name still adorns the FBI HQ building and other than accusations of cross dressing, no ones dug in to truly uncover the evil things that man did.
  - wfo 10y ago
    McCarthy's name isn't being tarnished out of spite. It's because he started a disgusting witch hunt with blacklists, demagoguery, etc to hunt down anyone who committed thoughtcrime (i.e. communist sympathy) that ruined the lives of many, many innocent people and turned the country down a very dark path. The fact that there were soviet agents in the government is mostly tangential. It was because he went around saying there's a secret list of enemies, and that anyone who is left of center is probably one of them, that he was so horrible. It was because he made disgusting personal attacks and aired the dirty laundry of anyone who crossed him. It was because of his deep hatred for homosexuals and anyone who wasn't right wing. He was one of the more vile characters in US history. J. Edgar Hoover was much worse, I'll concede; Hoover was actually a traitor, the worst in US history, and should have been jailed or executed. But McCarthy deserves every bit of tarnishing he gets, and a whole lot more that he doesn't get because people have forgotten.
  - deleted 10y ago
    [deleted]
  - vacri 10y ago
    Obama didn't spy on anyone, he was a president, not an intel agent. Bush didn't invade Iraq, he was a president, not a soldier.
UnpossibleJim 10y ago
Not that I endorse this reality, but we have been, for quite a long time, a society that has one set of laws for certain segments of society and another set for disparate segments of society.
joering2 10y ago
> Hopefully it finally gets shut down during the Trump administration Are you insane?? Didn't you hear many of Trump speeches saying that NSA doesn't have enough power??? And that we need to monitor more, especially certain groups but pretty much everyone as well? And that companies like Apple should be forced to decrypt or have tools to decrypt their own technology. Bush made surveillance wanted by public fear because of 911. Obama made it further legal by not doing anything against it and praising NSA as "your friendly neighbor". Trump is here to make it more invasive and to make it stay for good!
anigbrowl 10y ago
Spying likely started during the Bush years It got worse during the Bush administration, but government surveillance isn't a new thing. Hopefully it finally gets shut down during the Trump administration Not sure if serious
- wallace_f 10y ago
  He must be kidding. Trump has said repeatedly "I want surveillance..."

exabrial 10y ago

My opinion on hn was unpopular when I some out against Apple during the San Bernardino affair, because the FBI seemed to have the proper DOJ signoff and I think the motivation was obvious. However this is unacceptable. We are a society of laws, and one of them is due process. Spying likely started during the Bush years, and Obama somehow escaped scrutiny for continuing the program (even with Snowden leaks). Hopefully it finally gets shut down during the Trump administration, even if merely because the media seems far less tolerant of his transgressions.

willvarfar 10y ago

Why aren't politicians and their staff using end-to-end encrypted VOIP?

mysterypie 10y ago
The same reason you aren't. The same reason PGP has been around for 25 years and only a miniscule fraction of people ever encrypt their email. I.e., it's because none of this privacy technology is built-in as the default into our communications infrastructure. Therefore, for the average person (and even for privacy-conscious techies), it is inconvenient and difficult, and you have to convince the party you're talking with to also install and configure something that is inconvenient and difficult for them. I'm convinced that the question of why end-to-end crypto isn't the default is a political one; i.e., there is pressure not to do it.
- willvarfar 10y ago
  Politicians and their staff should not be ignorant; they ought be very acutely aware of the risks and that they are a target, and ought be highly motivated to fix this for themselves by securing their own systems.
- dmix 10y ago
  Shifting people onto E2E encrypted VOIP as we move off analog phone lines would be far easier than moving peoples existing email to PGP. Much like how it was pretty seemless for WhatsApp to turn it on. Email is a special case because of the various semantics like searching and federated clients.
- remx 10y ago
  There's a big discussion about PGP here and why so many fail to use it: https://news.ycombinator.com/item?id=13114538 https://news.ycombinator.com/item?id=13114538 Some of the comments are worth reading if not for the sheer size of the discussion. It could take an afternoon or two to fully digest that thread. The comments are in response to this: https://blog.filippo.io/giving-up-on-long-term-pgp/ https://blog.filippo.io/giving-up-on-long-term-pgp/
- 10y ago

mgamache 10y ago

The problem with the press coverage of this topic is a lack of personalization. What does the government know about me and why is that important? I think most US citizens would be shocked to learn that most of our personal information is accessible without a warrant. (phone records / bank account / email / web history / phone location data / Car location / Purchase history / Facebook etc....). Also, how much the government can interpret from that information.

joshontheweb 10y ago
Unfortunately I have found that most people aren't shocked when I explain this to them. Most commonly they just say That their life is boring and they've got nothing to hide. Additionally they think that it may be worth the invasion if we can catch the 'bad guys'. I'm not sure what would need to happen to change this sentiment on a large enough scale to get people motivated into political action.
- snerbles 10y ago
  We're fighting an uphill battle against fear peddled by various media outlets to attract viewers and clicks. Fear that is useful to the surveillance apparatus.
- VA3FXP 10y ago
  The fight against apathy is unforgiving, relentless, and it only works in small doses. As long as the masses have their opiate of choice nothing will ever change.
- jacquesm 10y ago
  > I'm not sure what would need to happen to change this sentiment on a large enough scale to get people motivated into political action. A couple of razzias where they or their loved ones were taken to gas chambers should do the job. But we have such short memories. In just about every Dutch town, usually near the railway station there is a monument documenting just that and it still does not seem to make much of a difference.

1001101 10y ago

It's interesting that the article mentions then Sen. Obama's change of heart re: the FISA Amendments Act - saying he would filibuster it and then voting for it. I wonder what led to his change of heart. I haven't heard that explained.

andy_ppp 10y ago
Probably that he was running for president and wanted to appear on the side of the security services? Then when in office it clearly must be a useful tool to start build profiles of everyone and be able to mine their activities.
- grandalf 10y ago
  Exactly. I think it also underscores Obama's unprincipled, opportunistic nature. This is not a criticism of Obama, I think it applies to all presidents, and likely most elected officials worldwide.
  - ak4g 10y ago
    Pragmatism is a principle.
    - grandalf 10y ago
      > Pragmatism is a principle. Sure, but toward what end? Himself being elected? Surely most politicians are of the opinion that simply by having their butt in the chair in the office, good has been done. This sort of reasoning is considered sociopathic in most other contexts.
      - ak4g 10y ago
        Towards any end at all. IRL, there are no points for effort, and certainly no points for purity of intent. The proof is in the pudding. And so, no, I don't see good/effective politicians as having some quality that would otherwise have them be considered sociopaths. I expect a competent elected leader to behave along the lines of what I'd expect from a competent co-worker.

Darthy 10y ago

Of course the other 7.2 billion people in the world are also routinely monitored, but since this is an action on foreign territory, these 7.2 billion people have no recourse against this practice.

willstrafach 10y ago
I hear this brought up a lot but do not see how it would be an issue. This is part of the job of an intelligence agency. Something often ignored: The intelligence agencies of other countries are likely to be doing the same thing. It has already been shown that BND and GCHQ engage in similar behavior with regards to upstream and satellite signals interception, but it seems foolish to assume that other countries are not engaging in this type of intelligence collection.
- rbg246 10y ago
  No i don't think it is the job of an intelligence agency to spy on the rest of the world's citizens and i think its a terrible idea to normalise this behaviour as such or to somehow make it sound ethical. The everyone else is doing it defence does not change the unethical nature of the action.
  - anigbrowl 10y ago
    Yes it is. Otherwise you're putting yourself at a strategic disadvantage. It's an inevitable outcome of the technology being available. We have great weather satellites now partly because knowing the weather and observing agriculture in other countries makes us economically competitive. If a technology exists it's going to be used, within the normal variations of supply and demand. You might prefer to abstain from using a particular technology, but there's also the possibility that it will get used on you. From a governmental perspective, a country has a requirement to be as aware of its political environment as it can for the sake of its citizens' safety.
  - willstrafach 10y ago
    I am curious how you would define "spying" though. - Should NGA not use imaging satellites to keep track of national disasters and environmental issues? - Should NGA not use imaging satellites for nuclear non-proliferation monitoring? - Should DoD not have digital sensors at the egress points of their networks to gather information on attacks by foreign actors? - Should NSA not monitor the communications of foreign adversaries to determine their intentions on the battlefield? - Should NSA not investigate adversarial nations launching attacks and information-gathering operations against DoD infrastructure as well as US private industry? - Should our military intelligence branches not monitor weapons development of adversarial nations (using ELINT measurements, imaging satellites, along with other forms of intelligence gathering to determine their offensive/defensive capabilities) - Should we not use SIGINT sensors and capabilities to detect an incoming attack on the USA or an ally? - I can add a whole lot more to this list if interested. The act of "spying" is far more than just SIGINT collection and processing of internet data. Can you elaborate on what you specifically take issue with? Do you take issue with all intelligence collection as a whole, or specifically SIGINT collection, or more specifically SIGINT collection of internet data or phone records? I am curious and like to keep an open mind about these things, so am being genuine when I ask this.

shiftoutbox 10y ago

I hear Rand Paul is a fake ophthalmologist.

lordnacho 10y ago

I have a question about this whole government intrusion thing. Perhaps a lawyer can explain: Suppose the government gets a warrant to wiretap some guy. He happens to get a call from his lawyer, and the government overhears that he's committed some crime. Now there's an attorney/client privilege preventing you from directly producing the tape (is there?) so you can't just do that. But the fact that you've heard this means as an investigator you'll probably pursue this guy much more aggressively, and perhaps gather other evidence rather than give up. How does that work?

ealexhudson 10y ago
If you gather other evidence, it's called "parallel construction" and it's A Thing. It doesn't just apply to wire-taps; all sorts of evidence would be inadmissible, but of course once investigators know something there are often other ways of figuring out a means to get evidence (or, at least, getting to the point you can justify a warrant).
ascagnel_ 10y ago
Parallel construction: https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction
shamwow 10y ago
TLDR: use illegal methods to find a crime, use that to make up a way to "discover" it legally. Present to a judge, easy conviction.
matthewbauer 10y ago
I think the short answer is that they could get away with it if they kept it secret, but if the courts found out about it that alone could be enough to through the entire case. > The N.S.A.’s protections for attorney-client conversations are narrowly crafted, said Stephen Gillers, an expert on legal ethics at New York University’s School of Law. The agency is barred from sharing with prosecutors intercepted attorney-client communications involving someone under indictment in the United States, according to previously disclosed N.S.A. rules. But the agency may still use or share the information for intelligence purposes. [1]: https://www.nytimes.com/2014/02/16/us/eavesdropping-ensnared-american-law-firm.html https://www.nytimes.com/2014/02/16/us/eavesdropping-ensnared...

caycep 10y ago

Dana Priest and William Arkin's project documents a lot of the issues w/ the intelligence bureaucract.... http://projects.washingtonpost.com/top-secret-america/ http://projects.washingtonpost.com/top-secret-america/

strictnein 10y ago

One feels that Paul doesn't quite have a full grasp of the techniques he's describing (and it sounds like he's conflating a lot of stuff that Snowden leaked), but that headline sure gets the clicks, so let's go with it. Especially since it's Greenwald, who uses Paul's jumbled mess of an explanation to burn everything down. Doesn't even make sense what he's proposing: Instead of getting a warrant to record the American, the NSA targets the foreigner? But what if they call someone else overseas? Or call people in the US? Seems like a really suboptimal way of targeting someone. And a low-level employee could unmask the caller? Sure, and that could also lead to that employee getting fired and prosecuted. I can access lots of data at work, but I would be shown the door and possibly sued if I did so.

rosser 10y ago
Paraphrasing Donald Rumsfeld, "You spy on your own people within the legal regime you've got, not the one you wish you had."
- strictnein 10y ago
  You can legally tap phones of Americans in a far less convoluted way than what Rand Paul attempted to describe.

youdontknowtho 10y ago

It's a mistake to empower and legitimize the right. Rand Paul is an extremist on issues of life and limb. Just because he's "good" on this issue doesn't change that. In fact, it makes it more likely that he will be afforded the position of a moderate because he went against his party on this issue, when he is just as extreme as anyone in his party on any others. It is something that Democrats will need to understand at some point. You have to deny them victories, even on issues that you support. It sucks but the right has outsized influence over the country because of party discipline like I've just described.

sand500 10y ago
>Democrats will need to understand at some point. You have to deny them victories, even on issues that you support. Putting party warfare comjng first before the actual issue is the reason why politics is such a shitshow.
- youdontknowtho 10y ago
  Then how are the republicans so ducking successful? Like it or not our system is controlled by two parties. One of them is opposed to science and democracy. The other is an imperfect group of competing interests. If you want things to change you have to deal with the framework we have. Not choosing is a choice for the side that aims to empower the already powerful. But you look great on that high horse, cowboy. Your cool disinterest and disdain for the world as is must make your apathy relatively painless. Getty up!
guelo 10y ago
This is not a Democrat/Republican issue. Obama and Bush both expanded these programs with their party's blessing. There are pockets of civil liberty defenders in both parties.
- Bartweiss 10y ago
  It should have become pretty clear that this wasn't partisan when an outgoing Obama helped ramp up surveillance in full knowledge of who was next. Seeing people treat this as a D/R fight when Udall and Feinstein are viciously opposed to one another is bizarre to me.

grandalf 10y ago

While this article offers the clearest presentation of the issue I've seen to date, I think the key point (which the article points out halfway in) is that the truth of Trump's claim that he was wiretapped does not depend on the presence or absence of a FISA warrant. The system is designed to be used without warrant, so those harping on the detail of whether or not a warrant existed that had Trump in scope are not focused on the core issue. It would be nice if all surveillance could be traced back to FISA warrants, but Snowden's revelations make it clear this is absolutely not the case.

unityByFreedom 10y ago
> It would be nice if all surveillance could be traced back to FISA warrants, but Snowden's revelations make it clear this is absolutely not the case You mean, since the NSA collects data on millions of Americans? If that's the type of monitoring you mean, Trump's complaint holds no more water than an average Joe claiming "Obama ordered a wiretap on me". More like, "Obama continued policy begun by previous administrations to enable spying to protect national security.". It's the primary function of the NSA.
- grandalf 10y ago
  > If that's the type of monitoring you mean Not at all. I mean that any number of people inside the intelligence organizations could have opted to "wiretap" Trump and there would have been no audit trail and no warrant. > holds no more water than an average Joe claiming "Obama ordered a wiretap on me" For what it's worth though, I do think the lowly "average Joe" you mention does deserve to be quite irate about his fourth amendment rights being thrown away.
  - willstrafach 10y ago
    > Not at all. I mean that any number of people inside the intelligence organizations could have opted to "wiretap" Trump This is not true. The system will not allow you to just query a US Person, and will automatically flag such requests for review if you try to do so. Even if an analyst conducted "reverse targeting" (Querying a foreign person who the US Person was communicating with), the US Person's information within the intercept(s) is automatically minimized and specific approval would be needed to de-anonymize it, including solid proof that the US Person was actually acting as a foreign adversary, such as a spy. I have no ability to argue that there is not a conspiracy involving multiple people in NSA approving these and OGC turning a blind eye to it and the senate intel committee ignoring it and so on, that is not impossible I suppose, but the reality is very far from simply having the ability to go ahead and wiretap Trump with ease. > and there would have been no audit trail and no warrant. There is absolutely an audit trail, including non-repudation for the analyst who performed the query (They must use their smartcard or "PKI"). This is good, because if you do believe that something awry is going on, you can push for a very specific cause: Put together an independent committee of representatives, have them go through the security clearance process (for those who have not already done so) to be read-in on any necessary SCI compartments to review the data, and conduct a thorough investigation regarding the audit trails of any query regarding Trump and/or associates. I personally find this to be far-fetched, but it is at least a tangible action which you and anyone who shares the belief can push for.

emehrkay 10y ago

Where exactly does Paul stand on issues of privacy like this? You'd think we is against it, but he is also okay with ISPs selling your browsing history. https://arstechnica.com/tech-policy/2017/03/gop-senators-new-bill-would-let-isps-sell-your-web-browsing-data/ https://arstechnica.com/tech-policy/2017/03/gop-senators-new...

mi100hael 10y ago
Whether or not you agree, there is a legitimate & legal distinction between a private corporation and a publicly-funded government organization.
- newjersey 10y ago
  So in my mind there are two parts to publicly funded projects. One is whether the spending of funds is worth it and another is whether the people have a choice. We think that by definition that when private companies have programs, they're not spending public money but I'd argue (somewhat controversial I agree) that any tax break is public money. Also the second part of whether participation is mandatory. I'd say if an ISP has a de facto Monopoly in a market, then we could say participation is mandatory. I hope this part is less controversial.
- emehrkay 10y ago
  Line gets fuzzy when ISPs, in most part, are government-backed monopolies (I'm "lucky" because both Verion and Comcast covers my area)
  - datatan 10y ago
    He is against them being government backed monopolies. According to him, and I agree, we should be able to switch ISP's at will. If we do not want an ISP selling our data we should have the freedom to move to one that doesn't.
    - zachsnow 10y ago

linkregister 10y ago

The author of this article did a poor job of refuting Susan Hennessey's statement that reverse targeting is unlawful and not practiced. Taking an excerpt of a Hayden speech and then highlighting his statement that "communications with one end in the U.S." are the most interesting doesn't really prove this. The author would have a stronger argument by sticking to the facts. Searches of U.S. persons without a warrant are directly at odds with the language in the 4th amendment of the Constitution, full stop.

wallace_f 10y ago

The world would be a much worse place without people like Greenwald.