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The legal theory that the bill of rights only applies to US citizens is dangerous and wrong. It applies to actions of the United States government. It is a lis

• rgbrenner 13y ago
  No, tptacek is right... if you are a foreigner living abroad, the bill of rights does not apply to you: In 1957, the court changed its position, overturning decades of precedent to declare that American citizens are in fact protected against U.S. government misbehavior by the Bill of Rights even outside the country. Unfortunately for the rest of the world, the court limited its ruling to U.S. citizens. Foreigners remained stuck with the old rule that the Bill of Rights doesn't apply abroad.[0] So US citizens are protected whether they are within US borders or abroad. And foreigners are protected if they are within US borders... but once they leave, it no longer applies. [0]. http://articles.latimes.com/2005/dec/16/opinion/oe-raustiala16 http://articles.latimes.com/2005/dec/16/opinion/oe-raustiala...
  • tptacek 13y ago
    It's also pretty hard to argue that prior to 1957, anyone in the USG needed to get a warrant to collect intelligence information from foreign soil.
    • rgbrenner 13y ago
      Right.. Prior to 1957, US citizens did not even have rights outside of the US. From the same article: So when, in 1880, American diplomats in Japan "tried" and convicted one American for killing another in Yokohama Bay, they did not need a jury to convict. When the defendant asserted that his 6th Amendment right to a jury trial had been violated, the Supreme Court declared "the Constitution has no operation in another country."
  • rgbrenner 13y ago
    I found the actual case.. if anyone wants to read more, it was Reid vs Covert: http://en.wikipedia.org/wiki/Reid_v._Covert http://en.wikipedia.org/wiki/Reid_v._Covert http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO.html http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354...
  • alan_cx 13y ago
    Hold on.... If a foreigner is protected while in the US, is accountable to the US if he/she breaks US law from abroad, and accountable if he/she breaks US law while visiting the US in the form of visiting a US web-server, (we foreigners are said to have visited US jurisdiction if we use US based services, there for we can be extradited) why then, if a foreigner's data is on US servers or systems, is his/her data and privacy not also protected under US law, if a foreigner is protected while in the US. If we are said to have visited the US and there for come under US law if we use US services, then surely it must also apply that the data we leave behind is also protected.
    • TazeTSchnitzel 13y ago
      Well, US jurisdiction only applies when it's convenient, and the same goes for rights ;)
      • Andrew_Quentin 13y ago
        I think its rather that no one has tested the above argument. The judgement was in 1953, so it had nothing to say about the internet or data stored in the US.
    • ra 13y ago
      You're right, it's hypocrisy in action. I wonder if a panel of lawmakers were given all of this to make recommendations on, without secrecy, gag orders or political prejudice, if we'd have very different situation today.
      • gundy 13y ago
        US government is bigoted and tyrannical towards non-US citizens. Period.
  • ef4 13y ago
    I'm aware that the court has interpreted it that way. That doesn't make it any less wrong. To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy. - Thomas Jefferson,1820 I will also note that the data in question was within the United States, where all property, whether owned by foreigners or not, is protected from unlawful search and seizure.
    • tptacek 13y ago
      What warrant did Jefferson serve on the Barbary Pirates?
      • markdown 13y ago
        <insert name of fallacy here>
        • mpyne 13y ago
          Fallacy fallacy?
      • dragonwriter 13y ago
        The First Barbary War was a declared war -- declared first by the Pasha of Tripoli against the US and explicitly recognized as a state of war in several acts of Congress subsequently -- so its hardly relevant.
        • mpyne 13y ago
          Well, "recognized as" hardly amounts to a declaration of war. Congress did authorize use of military force though, but technically only against Tripoli, not Algiers or Tunis. So the question remains open in general.
          • dragonwriter 13y ago
            > Well, "recognized as" hardly amounts to a declaration of war. Congress has the power to declare war, but (a) that power doesn't require any particular language, and any authorization of military action, as contained in the various statutes Congress adopted after the Tripoli declared war, can have the effect of a declaration of war (and a declaration of war may be limited or conditional), and (b) Congressional declaration of war is sufficient to create war, but not necessary; an enemy declaring, or initiating without declaring, war is also sufficient to create war. See, among other cases, Bas v. Tingy, 4 U.S. 37 (1800); The Prize Cases, 67 U.S. 635 (1862); The Protector, 79 U.S. 700 (1871).
  • yaix 13y ago
    Interesting. I guess that's why Guantanamo is on Cuba.
  • grappler 13y ago
    4th amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” I don't understand this notion that you don't really understand something like the 4th amendment without understanding the whole history of case law interpreting said amendment. The amendment is short and simple. It says what it says. It is part of the supreme law of the land (the constitution) and thus supersedes any lesser laws which may conflict with it. Any interpretation of it is just that. If I were to put it in software terms, I'd call interpretations “derived artifacts” and the amendment the “source”. If I start getting weird conflicts and unexpected behavior, as any developer knows, I should “make clean” (clear out all derived artifacts) followed by “make” (rebuild from source).
  • bigiain 13y ago
    "No, tptacek is right... if you are a foreigner living abroad, the bill of rights does not apply to you:" This is becoming abundantly obvious from where I sit, outside the US as a non-US citizen. I wonder just how long it's going to take for non US businesses and governments to realise the consequences of that? I look forward to the startup opportunities in what are currently considered "major player consolidated verticals" for non US based disruption? Who's currently planning an ad network or web analytics service or auction site or microblogging service or social network or online retail conglomerate - all marketed to national government and non-US based businesses as "all data stored outside US jurisdiction, all data SSL/TLS with PFS on the wire to minimise consequences of interception", then lobby governments to advice citizens to switch away from "US monitored services" and for corporations to forbid use of "US monitored service" via corporate networks. It's all but impossible to break into markets dominated by Google/eBay/Amazon/Facebook/Twitter - but what if the Australian government started recommending people use a secure local alternative, and big companies started blocking those services at the firewall?
• tptacek 13y ago
  That's a theory that suggests all spying is unconstitutional.
  • mindcrime 13y ago
    It probably is.
    • contingencies 13y ago
      It's probably also against the UN declaration of human rights.
      • mpyne 13y ago
        Given that spying drastically shortened the war against Japan and appreciably shortened the war against Nazi Germany (both of which are definitely not on the Christmas list of UN human rights proponents), I'd be careful about how emotionally attached one gets to the issue of spying. Like many other things, it is a tool... it can be used for good or for bad, but in the end it's a tool nonetheless.
        • contingencies 13y ago
          "Because <scaremongering amorphous threat>, you should really accept the removal of <fundamental right>" Hah. Yeah, sure.
          • mpyne 13y ago
            Well, how about this one? I would argue that controlling what substances are injected into your own body is pretty fundamental human right. So why do we allow societies to impose a vaccination regimen on people, by even minor coercion?
            • sneak 13y ago
              Oh, I thought you were going heroin, instead you went antivax.
• randallsquared 13y ago
  Some of the bill of rights is that, and some clearly refers to things protecting "the people". I am no constitutional scholar, but this does seem to indicate that those specific rights are rights that are intended to apply to citizens of the US.
  • gohrt 13y ago
    people lawfully present in the US, not just citizens.
    • tptacek 13y ago
      My understanding as well; noncitizens on US soil are protected by the Fourth Amendment; outside of actual border crossings, the USG cannot search them without a warrant or probable cause.
      • deleted 13y ago
        [deleted]
      • po 13y ago
        AFAIK "outside fo actual border crossings" also extends 100 miles into the US (including the coastlines). This covers the vast majority of people in the US. I've heard stories of people being searched and harassed by police because they happened to have a foreign visitor with them: http://www.law.cornell.edu/uscode/text/8/1357#a_3 http://www.law.cornell.edu/uscode/text/8/1357#a_3 http://www.wired.com/threatlevel/2008/10/aclu-assails-10/ http://www.wired.com/threatlevel/2008/10/aclu-assails-10/
      • jholman 13y ago
        I would love to see evidence that non-citizens on US soil, as a class, are protected by the Fourth Amendment. It only took ten seconds on google to note that the NSA apparently doesn't agree with you. http://www.nsa.gov/sigint/faqs.shtml#sigint4 http://www.nsa.gov/sigint/faqs.shtml#sigint4 Federal law and executive order define a U.S. Person as: a citizen of the United States; an alien lawfully admitted for permanent residence; an unincorporated association with a substantial number of members who are citizens of the U.S. or are aliens lawfully admitted for permanent residence; or a corporation that is incorporated in the U.S. I doubt that "permanent residence" includes H1-b workers, or other work visas, and I very strongly doubt that it includes people on business or pleasure trips. The NSA's language seems to derive very closely from FISA (the law itself, title 50 chapter 36), http://uscode.house.gov/download/pls/50C36.txt http://uscode.house.gov/download/pls/50C36.txt ..which in 1801 (i) has similar language, though it clarifies that the definition of "lawfully admitted for permanent residence" should be taken from "section 1101(a)(20) of title 8" According to http://www.law.cornell.edu/uscode/text/8/1101 http://www.law.cornell.edu/uscode/text/8/1101 , here is that section: (20) The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed. I don't feel enlightened. The EFF, in a surprising turn, claims that any legal resident is a US Person... normally I expect the EFF to (a) do their research correctly, and then (b) point out the worst-case scenario. This appears to be neither. https://ssd.eff.org/foreign/fisa https://ssd.eff.org/foreign/fisa IANAL (though sometimes I play one on HN), TINLA.
• ChuckMcM 13y ago
  If you have the time, I really really recommend listening to the "Civil Liberties and the Bill of Rights" [1] which is available from The Great Courses (and the Sunnyvale library, possibly a library near you as well) It is an excellent introduction into how the systems works (or doesn't work) and how it evolves the interpretation of the Constitution as it applies to citizens and noncitizens alike. [1] http://www.thegreatcourses.com/tgc/courses/course_detail.aspx?cid=8530 http://www.thegreatcourses.com/tgc/courses/course_detail.asp...
• charonn0 13y ago
  While I would prefer your stance to be correct, the Supreme Court has held that the Constitution applies only to persons within the USA. For example, Downes v. Bidwell found that "the Constitution does not apply to foreign countries [...]" [1] and that it doesn't apply to US Citizens if they are outside of the US, "[the] Constitution can have no operation in another country." [2] [1]: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=182&invol=244 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vo... [2]: https://supreme.justia.com/cases/federal/us/140/453/case.html https://supreme.justia.com/cases/federal/us/140/453/case.htm...
  • dylangs1030 13y ago
    While what you say was true, this legal precedent was later overturned by Reid v. Covert in 1957: http://en.wikipedia.org/wiki/Reid_v._Covert http://en.wikipedia.org/wiki/Reid_v._Covert
    • kposehn 13y ago
      Thank you for providing that link!
    • charonn0 13y ago
      Ah, good point. IANAL, can you tell? ;)
      • dylangs1030 13y ago
        It's perfectly alright, what you cited was dated to 1901, but the United States did have a longstanding tradition beyond that (up until 1957) of not upholding constitutional rights for citizens abroad. So, it's very reasonable to think this is still the case due to the abundance of cases which reinforced that precedent. That's why Reid v. Covert was such a landmark case, it completely overturned the precedent. IANAL either, however :)
    • charonn0 13y ago
      Justice Black, who wrote the Reid opinion[1], did so in terms which are very much applicable to the current situation: The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and, if allowed to flourish, would destroy the benefit of a written Constitution and undermine the basis of our Government. That sentence basically sums up my entire viewpoint on warrantless government dragnets. [1]: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354_0001_ZO.html http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354...
• sliverstorm 13y ago
  I can easily see it in a very literal interpretation of the documents though. For example, all of the amendments refer to "the people". "The people's right shall not be infringed..." Who is "the people"? Well, the Constitution starts out like so: We the people of the United States
• aetch 13y ago
  If you want to see how it is currently in effect, look no further than Guantanamo Bay. Non-citizens also under the label of terrorists (hint: not human) do not receive right from the US
• anigbrowl 13y ago
  That's what you may have thought it meant, or what you think it should mean, but it's not what it does mean. If you are so sure it's wrong, then it's up to you to make the argument for why, instead of just handwaving it away because you don't like it.
• fnordfnordfnord 13y ago
  It's morally wrong, but that's the way our gov't plays it.