5 ms·

Residents of the US are getting caught up in the dragnet, which is not the intent of FISA. And, it's not limited to citizen/non-citizen interactions. Spying on

Residents of the US are getting caught up in the dragnet, which is not the intent of FISA. And, it's not limited to citizen/non-citizen interactions. Spying on non-US citizens is legal, by spying on citizens should require a warrant.

phpisthebest 4y ago
it is fascinating to watch the carves out and weird exceptions the Supreme court has granted over the centuries going against completely the original intent of the constitution Citizenship being a factor on if the government can spy on you or not is one of them. The constitution should apply to government actions all government actions, not just those take inside the confines of the geographic regions known as the US, and not just those taken against US Citizens. The reading of "the people" to mean it only applies to Citizens is very novel IMO...
- jonny_eh 4y ago
  Relevant: https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_the_people_in_the_constitution.pdf https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_...
- mc32 4y ago
  Wouldn’t that mean the US would be at a disadvantage if other countries could spy on is big we could not spy on them (physically or electronically)? If least this gives US citizens some rights with regard to domestic spying.
  - FpUser 4y ago
    They do it too sort of argument. They do a lot of things. Like stoning women for adultery.
  - deleted 4y ago
    [deleted]
  - phpisthebest 4y ago
    Maybe... but that is why we have an amendment process... Sadly for the last ~100 years we have taken the easier path of just ignoring it when the constitution gets in the way
- xxpor 4y ago
  edit: the HLR article covers this exact question much better than what I've posted here. the concept of international telecommunication is novel from the perspective of the constitution, but anyway... The 4th amendment starts: >The right of the people The preamble starts: >We the People of the United States The 17th amendment says: >The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote It's pretty clear "the people" refers to citizens.
  - phpisthebest 4y ago
    >the concept of international telecommunication is novel from the perspective of the constitution But not of International Communication. >>It's pretty clear "the people" refers to citizens. If that is in fact the case, then why are all these rights the extended to all persons inside the Geographic US, Non-citizens are in fact all the time granted many / all the rights guaranteed by the US Constitution simply because of their presence inside the border of the US. Seems to be a conflict there, if by your account rights are only protected from government infringement if you are a US Citizen then we have loads of case law that runs afoul of that position
    - macinjosh 4y ago
      Generally speaking rights are extended to all inside the border of the US because it is impossible to immediately tell who is and is not a citizen. There is no federal citizenship ID or database. So the government finds it easier to simply assume anyone inside the US is a citizen to avoid constitutional/legal issues. Outside of the US the chances of running into problems with a dragnet is much lower so they just do it.
  - amanaplanacanal 4y ago
    I don't see the word citizens mentioned anywhere. As a parallel point, there were no immigration laws at all until a hundred years after the constitution was ratified. Anyone could come to the US.
    - 4y ago
- nyolfen 4y ago
  totally absurd. the constitution is a legal framework, not religious precepts. those outside the US have no duties to the US government when not in its jurisdiction and vice versa. of course the federal govt has been pushing against this itself, eg assange. you do not want to live in a world with a universal state.
  - Joeri 4y ago
    I would very much prefer to live in a world with a single state, provided it is a democracy. The current international system is clearly inferior as a means of providing universal well-being than a world government would be. In fact, i don’t see a way to get universal human rights without a global government. Believing such a thing to be impossible or undesirable comes across to me as giving up on the concept of universal human rights.
    - nyolfen 4y ago
      there will never be a system with "universal well-being" and this kind of thinking is religiously delusional. the world is made up of many zero-sum systems and resources. someone always has to win, and comparative advantage will always lead to defection.
    - midoridensha 4y ago
      I agree with you in principle, but today I think it's completely impossible: too many people really prefer living in authoritarian systems. Even in democratic systems, we've seen many times that people will happily vote for fascists and authoritarians who want to remove their democracy.
  - phpisthebest 4y ago
    I am not sure how my comments relates to yours unless you have completely inverted both my comment and the purpose of the US Constitution. no where in my comment did I state or imply anyone US Citizen or not has any duties to the US government. The US Constution does not impose any duties on any person at all, citizen or not The entire purpose and scope of the US Constitution is the establishment of the US Federal government as a Republic composed of US States. There in limiting the power of this government to a specific list of powers and reserving all other power for the States and the people. As a US Citizen, the US Constitution is not aimed at me, it is aimed at the federal government, many people misunderstand this relationship.
tptacek 4y ago
It should ideally require a warrant, but note that all sorts of surveillance doesn't. There's a misconception that the 4th Amendment requires warrants for all searches. It does not: it requires reasonableness (which is code for "a judge agrees with it"). The warrant clause of the 4th Amendment is a response to British law at the time of the founders, and the "general warrant", which was a government grant to law enforcement to randomly ransack people's houses and personal effects, used primarily as a tool of harassment rather than investigation. This is clearer when you read the original proposed language of (what was then, I think?) the "sixth amendment": The rights of the people to be secure in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. An obvious counterexample to the notion that all searches are constitutionally required to be authorized by specific warrants: searches incident to arrest, which have never been so encumbered. Another example: customs searches. Sometimes you can just roll the tape back how things were done at the time of the founders and see that the supposed prohibitions in the Constitution couldn't really be the intent.
- Clubber 4y ago
  >There's a misconception that the 4th Amendment requires warrants for all searches. It does not: it requires reasonableness (which is code for "a judge agrees with it"). Isn't the documentation of "a judge agrees with it," just a warrant signed by a judge? The exceptions that I can think of are: Probable cause of a crime and this only applies to person/vehicle in public. It's publicly visible I believe domiciles have the highest standard of searching, meaning it requires a warrant every time.
  - tptacek 4y ago
    A warrant signed by a magistrate is one of several ways that courts assent to searches. Again, at the time of the founders, a warrant was a tool of harassment, not a privacy protection. Domiciles are also subject to search incident to arrest, which do not require warrants.
  - 4y ago
mushbino 4y ago
Securing a warrant for domestic surveillance is incredibly trivial. "Before the terrorist attacks on September 11, 2001, the NSA went to the FISA court for warrants to eavesdrop on American citizens within the United States. Since the FISA court began meeting in 1979, it has approved almost 20,000 government requests for these electronic eavesdropping warrants and has rejected about five. The NSA does not need a warrant to eavesdrop on communications outside the country." https://www.crf-usa.org/bill-of-rights-in-action/bria-22-3-c-the-national-security-agency-warrantless-wiretaps#:~:text=The%20NSA's%20Warrantless%20Wiretap%20Program&text=Before%20the%20terrorist%20attacks%20on,citizens%20within%20the%20United%20States https://www.crf-usa.org/bill-of-rights-in-action/bria-22-3-c....
- tptacek 4y ago
  It would be more worrisome if the DOJ or NSA was routinely losing warrant applications in court; it would imply that they were taking flyers, rather than carefully documenting their targets and the rationale for surveillance. I'm not arguing that FISA warrants aren't abused, or that NSA couldn't get a warrant for a ham sandwich; I'm only saying that we probably can't learn much from their win count in court, since it's directionally what we'd hope it would be (I don't know if 20,000 is a lot or a little, and certainly we could debate that number).

phpisthebest 4y ago

it is fascinating to watch the carves out and weird exceptions the Supreme court has granted over the centuries going against completely the original intent of the constitution Citizenship being a factor on if the government can spy on you or not is one of them. The constitution should apply to government actions all government actions, not just those take inside the confines of the geographic regions known as the US, and not just those taken against US Citizens. The reading of "the people" to mean it only applies to Citizens is very novel IMO...

jonny_eh 4y ago
Relevant: https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_the_people_in_the_constitution.pdf https://harvardlawreview.org/wp-content/uploads/pdfs/vol126_...
mc32 4y ago
Wouldn’t that mean the US would be at a disadvantage if other countries could spy on is big we could not spy on them (physically or electronically)? If least this gives US citizens some rights with regard to domestic spying.
- FpUser 4y ago
  They do it too sort of argument. They do a lot of things. Like stoning women for adultery.
- deleted 4y ago
  [deleted]
- phpisthebest 4y ago
  Maybe... but that is why we have an amendment process... Sadly for the last ~100 years we have taken the easier path of just ignoring it when the constitution gets in the way
xxpor 4y ago
edit: the HLR article covers this exact question much better than what I've posted here. the concept of international telecommunication is novel from the perspective of the constitution, but anyway... The 4th amendment starts: >The right of the people The preamble starts: >We the People of the United States The 17th amendment says: >The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote It's pretty clear "the people" refers to citizens.
- phpisthebest 4y ago
  >the concept of international telecommunication is novel from the perspective of the constitution But not of International Communication. >>It's pretty clear "the people" refers to citizens. If that is in fact the case, then why are all these rights the extended to all persons inside the Geographic US, Non-citizens are in fact all the time granted many / all the rights guaranteed by the US Constitution simply because of their presence inside the border of the US. Seems to be a conflict there, if by your account rights are only protected from government infringement if you are a US Citizen then we have loads of case law that runs afoul of that position
  - macinjosh 4y ago
    Generally speaking rights are extended to all inside the border of the US because it is impossible to immediately tell who is and is not a citizen. There is no federal citizenship ID or database. So the government finds it easier to simply assume anyone inside the US is a citizen to avoid constitutional/legal issues. Outside of the US the chances of running into problems with a dragnet is much lower so they just do it.
- amanaplanacanal 4y ago
  I don't see the word citizens mentioned anywhere. As a parallel point, there were no immigration laws at all until a hundred years after the constitution was ratified. Anyone could come to the US.
  - 4y ago
nyolfen 4y ago
totally absurd. the constitution is a legal framework, not religious precepts. those outside the US have no duties to the US government when not in its jurisdiction and vice versa. of course the federal govt has been pushing against this itself, eg assange. you do not want to live in a world with a universal state.
- Joeri 4y ago
  I would very much prefer to live in a world with a single state, provided it is a democracy. The current international system is clearly inferior as a means of providing universal well-being than a world government would be. In fact, i don’t see a way to get universal human rights without a global government. Believing such a thing to be impossible or undesirable comes across to me as giving up on the concept of universal human rights.
  - nyolfen 4y ago
    there will never be a system with "universal well-being" and this kind of thinking is religiously delusional. the world is made up of many zero-sum systems and resources. someone always has to win, and comparative advantage will always lead to defection.
  - midoridensha 4y ago
    I agree with you in principle, but today I think it's completely impossible: too many people really prefer living in authoritarian systems. Even in democratic systems, we've seen many times that people will happily vote for fascists and authoritarians who want to remove their democracy.
- phpisthebest 4y ago
  I am not sure how my comments relates to yours unless you have completely inverted both my comment and the purpose of the US Constitution. no where in my comment did I state or imply anyone US Citizen or not has any duties to the US government. The US Constution does not impose any duties on any person at all, citizen or not The entire purpose and scope of the US Constitution is the establishment of the US Federal government as a Republic composed of US States. There in limiting the power of this government to a specific list of powers and reserving all other power for the States and the people. As a US Citizen, the US Constitution is not aimed at me, it is aimed at the federal government, many people misunderstand this relationship.

tptacek 4y ago

It should ideally require a warrant, but note that all sorts of surveillance doesn't. There's a misconception that the 4th Amendment requires warrants for all searches. It does not: it requires reasonableness (which is code for "a judge agrees with it"). The warrant clause of the 4th Amendment is a response to British law at the time of the founders, and the "general warrant", which was a government grant to law enforcement to randomly ransack people's houses and personal effects, used primarily as a tool of harassment rather than investigation. This is clearer when you read the original proposed language of (what was then, I think?) the "sixth amendment": The rights of the people to be secure in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. An obvious counterexample to the notion that all searches are constitutionally required to be authorized by specific warrants: searches incident to arrest, which have never been so encumbered. Another example: customs searches. Sometimes you can just roll the tape back how things were done at the time of the founders and see that the supposed prohibitions in the Constitution couldn't really be the intent.

Clubber 4y ago
>There's a misconception that the 4th Amendment requires warrants for all searches. It does not: it requires reasonableness (which is code for "a judge agrees with it"). Isn't the documentation of "a judge agrees with it," just a warrant signed by a judge? The exceptions that I can think of are: Probable cause of a crime and this only applies to person/vehicle in public. It's publicly visible I believe domiciles have the highest standard of searching, meaning it requires a warrant every time.
- tptacek 4y ago
  A warrant signed by a magistrate is one of several ways that courts assent to searches. Again, at the time of the founders, a warrant was a tool of harassment, not a privacy protection. Domiciles are also subject to search incident to arrest, which do not require warrants.
- 4y ago

mushbino 4y ago

Securing a warrant for domestic surveillance is incredibly trivial. "Before the terrorist attacks on September 11, 2001, the NSA went to the FISA court for warrants to eavesdrop on American citizens within the United States. Since the FISA court began meeting in 1979, it has approved almost 20,000 government requests for these electronic eavesdropping warrants and has rejected about five. The NSA does not need a warrant to eavesdrop on communications outside the country." https://www.crf-usa.org/bill-of-rights-in-action/bria-22-3-c-the-national-security-agency-warrantless-wiretaps#:~:text=The%20NSA's%20Warrantless%20Wiretap%20Program&text=Before%20the%20terrorist%20attacks%20on,citizens%20within%20the%20United%20States https://www.crf-usa.org/bill-of-rights-in-action/bria-22-3-c....

tptacek 4y ago
It would be more worrisome if the DOJ or NSA was routinely losing warrant applications in court; it would imply that they were taking flyers, rather than carefully documenting their targets and the rationale for surveillance. I'm not arguing that FISA warrants aren't abused, or that NSA couldn't get a warrant for a ham sandwich; I'm only saying that we probably can't learn much from their win count in court, since it's directionally what we'd hope it would be (I don't know if 20,000 is a lot or a little, and certainly we could debate that number).