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So do you think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo? Do you think the Constitution requires one

So do you think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo? Do you think the Constitution requires one?

HistoryInAction 14y ago
I'm not a lawyer :) Sen. Paul argues an absolutist position on the Fourth Amendment, that any sort of search/seizure of information involving US citizens requires a warrant. Do I agree? I'm certainly favorable to the interpretation of the Fourth. However, my larger concern is the lack of oversight, even by the so-called "Gang of Eight" re: Intelligence committees: http://en.wikipedia.org/wiki/Gang_of_Eight http://en.wikipedia.org/wiki/Gang_of_Eight The government, under both the Bush and Obama administrations, has clearly engaged on systematic "overcollection," or going beyond even the allowable actions by the FISA law. It was a large scandal leading to the retroactive approval by congress through these FISA amendments in 2006: http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_co... So I don't think the right question to ask is whether or not probably cause is the correct standard to use since it doesn't appear that government actors follow the assigned standard anyway. The question is of oversight and the reasonably effective ability to challenge such government behavior, as contrasted with the case of Nicholas Merrill and his NSL letter.
- twoodfin 14y ago
  I'm asking about the Fourth Amendment issues because I think they're irrelevant, but most people who discuss this issue seem to think they're paramount. Really, this is a separation-of-powers fight: How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying? The President has no obligation to obey laws that impinge on his Constitutional authority. Or to put it more gently, he's generally free to interpret those laws as broadly or narrowly as necessary to avoid that impingement. So I can't get too worked up about the "systematic overcollection" argument. Unless you make it "systematic, deliberate overcollection of purely domestic communications". I am disturbed that the EFF seems to think it's advantageous to blur the distinction (using terms like "probable cause" and "warrants") and make it seem as if these programs are prima facie targeted at domestic communication and unconstitutional.
  - HistoryInAction 14y ago
    Not only am I not a lawyer, but I'm especially not a constitutional lawyer. It seems that you're right that the general concern is about Americans who communicate with targets abroad, not purely domestic communications. However, I recall discussion in the office about chilling effects re: international communications that would harm US academics' abilities to collaborate abroad, which is the only example I remember at this distance. The original article: http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all&_r=0 http://www.nytimes.com/2005/12/16/politics/16program.html?pa... My interpretation of the EFF is that while intent matters, and the intent of existing programs is to primarily target internationally, without oversight, there's no distinction between international and domestic wiretapping. We have little sense of what wiretapping does go on because it's all overseen by secret FISA courts. Here's the '09 report on domestic overcollection: http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=all http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=a... I think the EFF's point is: what protections does a US citizen have against being caught up in these wiretaps, considering the known flaws of the program and its operators? That's where the Fourth Amendment comes into play and questions over probably cause and warrants.
  - Spooky23 14y ago
    Given the fact that most of these things are done in near-total secrecy, how can you be sure that the "systemic overcollection" concern is what you say it is? And what is a "purely domestic" communication in this context? Is this message board a domestic communication? A telephone call? A telephone call to a foreign national living in the US? I have no idea. How would I prove that it is or isn't? I'm not some sort of paranoid that thinks that the government is out to get me. I do know that for routine criminal matters, the Federal government has incredibly broad and effective police powers, even with court oversight. Pre-9/11, the government was already able to gather lots of actionable information about the threat our nation was about to face (and fumbled the ball). So I'm not convinced that all of this secrecy and lack of accountability is buying me anything as a citizen. Frankly, I'm concerned that by mindlessly gathering vast swaths of data, it will become exponentially more difficult to extract signal from the noise.
    - 14y ago
- rayiner 14y ago
  The phrase "absolutist position on the Fourth Amendment" is oxymoronic. The 4th amendment does not say: "you can't search Americans without a warrant and probable cause." It says "searches can't be unreasonable and also warrants require probable cause." Interpretation of the 4th amendment has to give due weight to the wiggle word "unreasonable" as well as the historical understanding of what kind of searches required a warrant and what kind of searches do not.
  - HistoryInAction 14y ago
    I use "absolutist position" in the sense that Justice Black used it when applying it to the First Amendment. Yes, in that case, it's an absolute position: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;" So you're right that Sen. Paul is more taking a narrow view towards "unreasonable" rather than being absolutist. However, when it comes to digital information, we have little historical precedent to rely on. Right now, the law governing digital storage, the Electronic Communications Privacy Act of 1986, says that all email stored over 60 days is considered abandoned and can be requested from the storage depot (Gmail, often) without a warrant and without notifying the nominal owner (me).
    - rayiner 14y ago
      The historical precedent is easily adapted to digital information. Historically, international communications were not protected. The government can inspect any package you send outside the U.S. and any package you receive from outside the U.S. So why should the same not apply to electronic communications? Historically, information you gave to third parties was not protected. The government doesn't need a warrant to get Kinkos to give them the documents I printed there. Why should the government need a warrant, then, to get Google to give them the documents I have on my Google Docs account?
      - HistoryInAction 14y ago
        Interesting. I was more thinking along the lines of how copyright is increasingly digital and increasingly out of touch with the 1791 state of copyright, as per the Derek Khanna article. Definitely not something I know much about, though. Thanks.
shawn-butler 14y ago
Citizens at the border have a lowered expectation of privacy. This is well-known and understood principle of national sovereignty (protecting a border is one of the core principles of being a soverign entity). So the 4th amendment doesn't apply to border searches as a routine search is not an unreasonable one to (re)gain entry. Making an international call to a business associate from Chicago to Cairo seems pretty obvious that I have as reasonable expectation to privacy as I do calling my business associate in New York. So, the answer is yes the Constitution does require a standard. The specific standard of probable cause is up to the judiciary to determine not found in the Constitution. I suppose if I was calling a known terrorist organization or conducting business in a war zone I would know that I have a much lowered expectation of privacy, for example. FISA was simply a way to avoid the national security implications and backdoor the judiciary oversight by setting up a "fake" judiciary. Apparently we can't even trust public elected officals in Congress or on the bench to keep the public's interest in mind as they would divulge national secrets to the national enquirer at first opportunity or whatever. Not like we can trust the checks and balances on the legislative branch to function as intended </sarcasm>. The concept of secret police and oversight by secret courts would be repugnant to the founders and should be to any citizen. Regarding the obtaining of communications between foreign nationals of which no citizen is a party, I have less to say. Espionage and counterterrorism is a dirty and necessary game played by every nation but conducting as wide a sweep as what is implied here in my opinion is bad policy because the cost to diplomacy and normal trade relations between nations is much too high. It invites and even necessitates a response that is chilling.
bandushrew 14y ago
I do. "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 says nothing about being american, or a citizen, or the distance between the people involved. It just says something that should be common sense - people have a right to be protected against unnecessary search and seizure.
EvilLook 14y ago
Yes, I think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo, especially when the people on each end of that call are American citizens.

So do you think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo? Do you think the Constitution requires one?

HistoryInAction 14y ago

I'm not a lawyer :) Sen. Paul argues an absolutist position on the Fourth Amendment, that any sort of search/seizure of information involving US citizens requires a warrant. Do I agree? I'm certainly favorable to the interpretation of the Fourth. However, my larger concern is the lack of oversight, even by the so-called "Gang of Eight" re: Intelligence committees: http://en.wikipedia.org/wiki/Gang_of_Eight http://en.wikipedia.org/wiki/Gang_of_Eight The government, under both the Bush and Obama administrations, has clearly engaged on systematic "overcollection," or going beyond even the allowable actions by the FISA law. It was a large scandal leading to the retroactive approval by congress through these FISA amendments in 2006: http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_co... So I don't think the right question to ask is whether or not probably cause is the correct standard to use since it doesn't appear that government actors follow the assigned standard anyway. The question is of oversight and the reasonably effective ability to challenge such government behavior, as contrasted with the case of Nicholas Merrill and his NSL letter.

twoodfin 14y ago
I'm asking about the Fourth Amendment issues because I think they're irrelevant, but most people who discuss this issue seem to think they're paramount. Really, this is a separation-of-powers fight: How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying? The President has no obligation to obey laws that impinge on his Constitutional authority. Or to put it more gently, he's generally free to interpret those laws as broadly or narrowly as necessary to avoid that impingement. So I can't get too worked up about the "systematic overcollection" argument. Unless you make it "systematic, deliberate overcollection of purely domestic communications". I am disturbed that the EFF seems to think it's advantageous to blur the distinction (using terms like "probable cause" and "warrants") and make it seem as if these programs are prima facie targeted at domestic communication and unconstitutional.
- HistoryInAction 14y ago
  Not only am I not a lawyer, but I'm especially not a constitutional lawyer. It seems that you're right that the general concern is about Americans who communicate with targets abroad, not purely domestic communications. However, I recall discussion in the office about chilling effects re: international communications that would harm US academics' abilities to collaborate abroad, which is the only example I remember at this distance. The original article: http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all&_r=0 http://www.nytimes.com/2005/12/16/politics/16program.html?pa... My interpretation of the EFF is that while intent matters, and the intent of existing programs is to primarily target internationally, without oversight, there's no distinction between international and domestic wiretapping. We have little sense of what wiretapping does go on because it's all overseen by secret FISA courts. Here's the '09 report on domestic overcollection: http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=all http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=a... I think the EFF's point is: what protections does a US citizen have against being caught up in these wiretaps, considering the known flaws of the program and its operators? That's where the Fourth Amendment comes into play and questions over probably cause and warrants.
- Spooky23 14y ago
  Given the fact that most of these things are done in near-total secrecy, how can you be sure that the "systemic overcollection" concern is what you say it is? And what is a "purely domestic" communication in this context? Is this message board a domestic communication? A telephone call? A telephone call to a foreign national living in the US? I have no idea. How would I prove that it is or isn't? I'm not some sort of paranoid that thinks that the government is out to get me. I do know that for routine criminal matters, the Federal government has incredibly broad and effective police powers, even with court oversight. Pre-9/11, the government was already able to gather lots of actionable information about the threat our nation was about to face (and fumbled the ball). So I'm not convinced that all of this secrecy and lack of accountability is buying me anything as a citizen. Frankly, I'm concerned that by mindlessly gathering vast swaths of data, it will become exponentially more difficult to extract signal from the noise.
  - 14y ago
rayiner 14y ago
The phrase "absolutist position on the Fourth Amendment" is oxymoronic. The 4th amendment does not say: "you can't search Americans without a warrant and probable cause." It says "searches can't be unreasonable and also warrants require probable cause." Interpretation of the 4th amendment has to give due weight to the wiggle word "unreasonable" as well as the historical understanding of what kind of searches required a warrant and what kind of searches do not.
- HistoryInAction 14y ago
  I use "absolutist position" in the sense that Justice Black used it when applying it to the First Amendment. Yes, in that case, it's an absolute position: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;" So you're right that Sen. Paul is more taking a narrow view towards "unreasonable" rather than being absolutist. However, when it comes to digital information, we have little historical precedent to rely on. Right now, the law governing digital storage, the Electronic Communications Privacy Act of 1986, says that all email stored over 60 days is considered abandoned and can be requested from the storage depot (Gmail, often) without a warrant and without notifying the nominal owner (me).
  - rayiner 14y ago
    The historical precedent is easily adapted to digital information. Historically, international communications were not protected. The government can inspect any package you send outside the U.S. and any package you receive from outside the U.S. So why should the same not apply to electronic communications? Historically, information you gave to third parties was not protected. The government doesn't need a warrant to get Kinkos to give them the documents I printed there. Why should the government need a warrant, then, to get Google to give them the documents I have on my Google Docs account?
    - HistoryInAction 14y ago
      Interesting. I was more thinking along the lines of how copyright is increasingly digital and increasingly out of touch with the 1791 state of copyright, as per the Derek Khanna article. Definitely not something I know much about, though. Thanks.

shawn-butler 14y ago

Citizens at the border have a lowered expectation of privacy. This is well-known and understood principle of national sovereignty (protecting a border is one of the core principles of being a soverign entity). So the 4th amendment doesn't apply to border searches as a routine search is not an unreasonable one to (re)gain entry. Making an international call to a business associate from Chicago to Cairo seems pretty obvious that I have as reasonable expectation to privacy as I do calling my business associate in New York. So, the answer is yes the Constitution does require a standard. The specific standard of probable cause is up to the judiciary to determine not found in the Constitution. I suppose if I was calling a known terrorist organization or conducting business in a war zone I would know that I have a much lowered expectation of privacy, for example. FISA was simply a way to avoid the national security implications and backdoor the judiciary oversight by setting up a "fake" judiciary. Apparently we can't even trust public elected officals in Congress or on the bench to keep the public's interest in mind as they would divulge national secrets to the national enquirer at first opportunity or whatever. Not like we can trust the checks and balances on the legislative branch to function as intended </sarcasm>. The concept of secret police and oversight by secret courts would be repugnant to the founders and should be to any citizen. Regarding the obtaining of communications between foreign nationals of which no citizen is a party, I have less to say. Espionage and counterterrorism is a dirty and necessary game played by every nation but conducting as wide a sweep as what is implied here in my opinion is bad policy because the cost to diplomacy and normal trade relations between nations is much too high. It invites and even necessitates a response that is chilling.

bandushrew 14y ago

I do. "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 says nothing about being american, or a citizen, or the distance between the people involved. It just says something that should be common sense - people have a right to be protected against unnecessary search and seizure.

EvilLook 14y ago

Yes, I think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo, especially when the people on each end of that call are American citizens.