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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

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.
- tptacek 14y ago
  If the concern is that the executive is hiding facts from the legislative or judicial branches: those branches can appoint special prosecutors, independent counsels, or whatever it is you want to call them. There's obviously no foolproof mechanism by which anyone can absolutely ensure that the President or his team or the DoD will divulge information, but there are facilities the branches can use to hold each other accountable.
  - m0nastic 14y ago
    I participated in one such example of this oversight (most fun test I ever did). We were hired by a Special Master that Congress appointed to conduct a pen test against a branch of the DoI without their knowledge[1] [1] As part of this class action: http://en.wikipedia.org/wiki/Cobell_vs._Salazar http://en.wikipedia.org/wiki/Cobell_vs._Salazar
guelo 14y ago
I see you're one of those John Yoo types that think the president can do anything he wants, including torture children, without any oversight because we are in a never-ending undeclared war supposedly authorized by congress in 2002's AUMF to attack Iraq. Not only is that interpretation illogical and authoritarian, it is also immoral and is leading to the loss of faith and the unraveling of American Democracy. I believe that attitude is doing more damage to America than a terrorist ever could.
- tptacek 14y ago
  This is such a terrible comment that I flagged it. There is no way to go from what 'twoodfin wrote to "I see you're one of those types that think the president can torture children"; you had to make several assumptive leaps, all hinging on identity politics, in order to make that inflammatory and thoroughly stupid claim. If you actually read what 'twoodfin wrote without immediately flipping the breaker in your head labeled "David Addington", you'll find you can't even discern his take on executive branch powers. What he's saying is on its face so true as to be banal: Congress cannot in fact pass laws that alter the balance of powers erected in the Constitution. I don't know how much damage Yoo and Addington's misconceptions about the limits of executive power did to the country. Like you, my guess is "nonzero". But I have a pretty clear read on how damaging comments like yours are to the discourse on this site: immense. Stop it.
  - guelo 14y ago
    Congress has the power to declare war. The constitution says nothing about spying, congress can ban it if it wants to. People such as twoodfin and yourself that claim that the president is unrestrained in these types of issues from any congressional oversight are basing their arguments on the convoluted "unitary executive" Bush-era legal doctrine that claims that once congress authorizes war the president can do anything he wants without any oversight, and they say congress authorized the current war in 2002's AUMF in Iraq. FYI, you're supposed to flag comments for being spam or offtopic, not because you disagree with them, from the site FAQ: "If you think something is spam or offtopic, flag it by going to its page and clicking on the "flag" link. (Not all users will see this; there is a karma threshold.) If you flag something, please don't also comment that you did."

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.

tptacek 14y ago
If the concern is that the executive is hiding facts from the legislative or judicial branches: those branches can appoint special prosecutors, independent counsels, or whatever it is you want to call them. There's obviously no foolproof mechanism by which anyone can absolutely ensure that the President or his team or the DoD will divulge information, but there are facilities the branches can use to hold each other accountable.
- m0nastic 14y ago
  I participated in one such example of this oversight (most fun test I ever did). We were hired by a Special Master that Congress appointed to conduct a pen test against a branch of the DoI without their knowledge[1] [1] As part of this class action: http://en.wikipedia.org/wiki/Cobell_vs._Salazar http://en.wikipedia.org/wiki/Cobell_vs._Salazar

guelo 14y ago

I see you're one of those John Yoo types that think the president can do anything he wants, including torture children, without any oversight because we are in a never-ending undeclared war supposedly authorized by congress in 2002's AUMF to attack Iraq. Not only is that interpretation illogical and authoritarian, it is also immoral and is leading to the loss of faith and the unraveling of American Democracy. I believe that attitude is doing more damage to America than a terrorist ever could.

tptacek 14y ago
This is such a terrible comment that I flagged it. There is no way to go from what 'twoodfin wrote to "I see you're one of those types that think the president can torture children"; you had to make several assumptive leaps, all hinging on identity politics, in order to make that inflammatory and thoroughly stupid claim. If you actually read what 'twoodfin wrote without immediately flipping the breaker in your head labeled "David Addington", you'll find you can't even discern his take on executive branch powers. What he's saying is on its face so true as to be banal: Congress cannot in fact pass laws that alter the balance of powers erected in the Constitution. I don't know how much damage Yoo and Addington's misconceptions about the limits of executive power did to the country. Like you, my guess is "nonzero". But I have a pretty clear read on how damaging comments like yours are to the discourse on this site: immense. Stop it.
- guelo 14y ago
  Congress has the power to declare war. The constitution says nothing about spying, congress can ban it if it wants to. People such as twoodfin and yourself that claim that the president is unrestrained in these types of issues from any congressional oversight are basing their arguments on the convoluted "unitary executive" Bush-era legal doctrine that claims that once congress authorizes war the president can do anything he wants without any oversight, and they say congress authorized the current war in 2002's AUMF in Iraq. FYI, you're supposed to flag comments for being spam or offtopic, not because you disagree with them, from the site FAQ: "If you think something is spam or offtopic, flag it by going to its page and clicking on the "flag" link. (Not all users will see this; there is a karma threshold.) If you flag something, please don't also comment that you did."