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NSA surveillance may be legal – but it’s unconstitutional

186 points by Libertatea 13y ago

argumentum 13y ago
As the Constitution is the "supreme law of the land", nothing "unconstitutional" can simultaneously be "legal."
- dsr_ 13y ago
  Until the SJ rules that a law is unconstitutional, it is still a law. When they make a ruling, it stops being a law. I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong.
  - argumentum 13y ago
    No, it's either unconstitutional (and illegal) or it isn't. The Supreme Court has the authority to make that judgement at a point in time, but it's judgement applies retroactively to the law or action thereof in question.
  - bmelton 13y ago
    "An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded hereby. No one Is bound to obey an unconstitutional law and no courts are bound to enforce it." - 16 American Jurisprudence 2d, Sec 177 late 2d, Sec 256 Plus, this has already been found unconstitutional[1], but that decision was kept secret, cause, y'know... CLASSIFIED. [1] - http://www.huffingtonpost.com/2013/06/12/fisc-ruling-surveillance_n_3430402.html http://www.huffingtonpost.com/2013/06/12/fisc-ruling-surveil...
  - mpyne 13y ago
    For the actions of the government the law is the definition of right/wrong, for better or worse (probably better, as otherwise right/wrong is strictly in the eye of the beholder, which is even more dangerous). That's why so many people here defend companies like Google or Facebook for legally manipulating their accounting to pay less taxes. Right/wrong is what the legislators are supposed to worry about when making the law, but once the law is set that's the framework. So arguing about the legality does have a point here, as it indicates what parts of the law must be changed or erased completely to make our conceptions of right/wrong line up with what the law thinks.
  - rayiner 13y ago
    > I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong. I'm disappointed at the number of people who project their value system ("right" and "wrong") on to everyone else then call all the people that disagree with them "Brave New World"-esque Sheeple. I just heard Clinton talking about the NSA situation today on Bloomberg. He said something along the lines of: we should make sure protections are in place, but you can't expect the government to ignore e-mail, etc, when everyone uses it to communicate these days. The reporter seemed entirely happy with the answer. So: whose ideas of "right" and "wrong" are we using?
    - bobwaycott 13y ago
      I'm doubtful that there's actually a conversation happening about right and wrong. The media attention surrounding these issues, and the treatment of the official actors, is centering entirely on the question of "is it legal?". They should, instead, be focusing on the question of "is it constitutional?". It's a very different kind of question. When all that can be said is that laws X, Y, and Z form the basis for action C, we have a fundamental failure at interrogating lawmakers and enforcement officials to ensure they are not complicit in violating the Constitution.
    - AnthonyMouse 13y ago
      >So: whose ideas of "right" and "wrong" are we using? That's the whole problem, isn't it? What the law is now can't be the standard for what the law should be or it can never change. But if we can't use legality to determine morality and morality in general is considered subjective then what are we supposed to do, flip a coin? Obviously the answer is that we collectively have to define "wrong" based on logic, evidence and history. (The alternatives of basing it on "might makes right" or "loudest voice wins" may be popular but, at the risk of creating a cycle, that isn't right.) So we need to have a debate. We need to see the evidence. How many terrorists have been foiled with this surveillance? How many could have been caught some other way and what would that have required? What are the risks to the public of allowing the government to accumulate this information? How does the one weigh against the other? The problem is that we can't have the debate so long as they insist on keeping the evidence a secret. Which is why the secrecy itself is wrong -- it allows for unaccountable government power, which based on logic, evidence and history can lead to Very Bad Things That Must Never Happen Again.
- throwaway10001 13y ago
  You have it wrong. Congress passes law to say, intercept all phone calls and store them. Until a court strikes it down is assumed constitutional and legal. You challenge it and then it becomes illegal and unconstitutional. (The court also changes its mind from time to time so it's not an exact science.)
  - bmelton 13y ago
    The only thing we have wrong is that for many years we have allowed Congress to get away with implementing laws that are clearly unconstitutional.
  - monochromatic 13y ago
    It doesn't become unconstitutional when a court says so. From its inception either it is, or it isn't. The issue simply isn't decided until the court says so.
    - throwaway10001 13y ago
      It doesn't become unconstitutional when a court says so. From its inception either it is, or it isn't. The issue simply isn't decided until the court says so. From a practical point of view there's no difference, we can split hairs if you want.
      - argumentum 13y ago
        There's obviously a difference .. the SC's decision can be applied retroactively to the cases in question.
    - NegativeK 13y ago
      Applying binary, a priori rigor to things that are written and interpreted by humans feels like the wrong path to go down.
    - rayiner 13y ago
      > The issue simply isn't decided until the court says so. Right. The NSA can make a good faith argument that they designed the program to stay within the bounds of Constitutionality. Their opinion can't override that of the Supreme Court, but until the Supreme Court rules they are entitled to try and interpret the law and act accordingly.
leoc 13y ago
> As for Section 702 of FISA, the Supreme Court has held that the Fourth Amendment does not protect foreigners from searches conducted abroad. But PRISM, as opposed to "upstream collection", isn't (necessarily) about searching foreigners abroad, or even at the border. It's about searching their stuff held on servers (sometimes) located inside the US and run by US companies as part of a business agreement with those foreigners. (However I have heard it suggested (IANAL) that sufficient legal cleverness can allow this to be characterised as a border search.) > But it has never recognized a foreign intelligence exception to the warrant requirement when foreign-targeted searches result in the collection of vast stores of citizens’ communications. Maybe. However the FISA appeals court certainly appears (IANAL) to have decided that a foreign-intelligence exception exists https://news.ycombinator.com/item?id=5917223 https://news.ycombinator.com/item?id=5917223 . Once again, from the Yahoo! case ruling http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf : 2 . The Foreign Intelligence Exception . The recurrent theme permeating the petitioner's arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment's Warrant Clause. 6 The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement. And again, this is a ruling on a law which allowed intentional targetting of US persons, though outside the United States.
- pyre 13y ago
  | However I have heard it suggested (IANAL) that | sufficient legal cleverness can allow this to be | characterised as a border search. Every airport is considered a 'border.' So even cities that are greater than 100 miles from a land border, or the ocean have a 100 mile circle around their airport where 'border searches' can happen. It doesn't take much legal cleverness to apply this to foreigners accessing US-based resources while sitting at home in a foreign country.
  - leoc 13y ago
    But a PRISM 702 doesn't even apply while you access your cloud data; it's simply an authorisation to go in and take any or all of it (and then monitor your later accesses) regardless of whether you've even been near it recently or not. In any case, even if a PRISM search is a border search (not necessarily a search at the border) it's certainly not a search conducted abroad, at least when the servers with the user data are inside the US.
confluence 13y ago
I do find arguments based on strict legality to be just a tad strange. Just because something is strictly legal doesn't mean that it's right, nor that it's in the spirit that the law originally intended. I mean, it was legal to exterminate Jews in Nazi Germany, send millions to death camps in Soviet Russia and starve 10s of millions to death in Communist China. Strict legality is particularly low bar to pass. What happened to the spirit of the law? What happened to public discussions of the law? What happened to proportional use of the justice system? What happened to basic human rights? Maybe I'm just naive, but when people hide behind the "Well it's legal! A secret court said so!" charade, even when they know that that it doesn't follow the spirit of the laws that they currently operate under, it just pisses me off. It's kind of like when someone cheats a system using a secret loophole that was clearly not intended to be used for that purpose. The person then turns around and says that it's a perfectly legitimate move. They then move forward on the assumption that the mere existence of said loophole gives them carte blanche to just do whatever they hell they want to do. It appears as though the NSA has hacked the legal system.
- genwin 13y ago
  > ... even when they know that that it doesn't follow the spirit of the laws that they currently operate under, it just pisses me off. Same here. A lot of this was going on in the 2000s. I'd ask them, so if it was legal to kick toddlers in the face, you'd be okay with that? They define "sheeple".
- austenallred 13y ago
  Bingo. The entire NSA hearing a few days ago was NSA directors pointing out under which law they perform each action. They could do it, because according to US law it is legal. The much more deep rooted question is "is this good?" Every aspect of law in the United States can be changed and rewritten according to the conscious of the people, though this takes a long time to do. Legality is temporary. Under ideal circumstances we would debate "right vs wrong" and change laws accordingly.
  - alexqgb 13y ago
    There's also a big difference between new law - which can be batshit insane - and settled law, which has both passed constitutional muster and become widely accepted. Trying to reconcile "consent of the governed" with "secret law" goes in the opposite direction.
coldcode 13y ago
I'm sure the NSA has enough interesting information on the supremes to ensure that a constitutional ruling never happens.
FamousWarrior 13y ago
If it's unconstitutional, it is illegal, period.

186 points by Libertatea 13y ago

argumentum 13y ago

As the Constitution is the "supreme law of the land", nothing "unconstitutional" can simultaneously be "legal."

dsr_ 13y ago
Until the SJ rules that a law is unconstitutional, it is still a law. When they make a ruling, it stops being a law. I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong.
- argumentum 13y ago
  No, it's either unconstitutional (and illegal) or it isn't. The Supreme Court has the authority to make that judgement at a point in time, but it's judgement applies retroactively to the law or action thereof in question.
- bmelton 13y ago
  "An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the lend, it is superseded hereby. No one Is bound to obey an unconstitutional law and no courts are bound to enforce it." - 16 American Jurisprudence 2d, Sec 177 late 2d, Sec 256 Plus, this has already been found unconstitutional[1], but that decision was kept secret, cause, y'know... CLASSIFIED. [1] - http://www.huffingtonpost.com/2013/06/12/fisc-ruling-surveillance_n_3430402.html http://www.huffingtonpost.com/2013/06/12/fisc-ruling-surveil...
- mpyne 13y ago
  For the actions of the government the law is the definition of right/wrong, for better or worse (probably better, as otherwise right/wrong is strictly in the eye of the beholder, which is even more dangerous). That's why so many people here defend companies like Google or Facebook for legally manipulating their accounting to pay less taxes. Right/wrong is what the legislators are supposed to worry about when making the law, but once the law is set that's the framework. So arguing about the legality does have a point here, as it indicates what parts of the law must be changed or erased completely to make our conceptions of right/wrong line up with what the law thinks.
- rayiner 13y ago
  > I'm disappointed in the number of people who care more about legal vs illegal than about right vs wrong. Laws can be constitutionally proper and yet wrong. I'm disappointed at the number of people who project their value system ("right" and "wrong") on to everyone else then call all the people that disagree with them "Brave New World"-esque Sheeple. I just heard Clinton talking about the NSA situation today on Bloomberg. He said something along the lines of: we should make sure protections are in place, but you can't expect the government to ignore e-mail, etc, when everyone uses it to communicate these days. The reporter seemed entirely happy with the answer. So: whose ideas of "right" and "wrong" are we using?
  - bobwaycott 13y ago
    I'm doubtful that there's actually a conversation happening about right and wrong. The media attention surrounding these issues, and the treatment of the official actors, is centering entirely on the question of "is it legal?". They should, instead, be focusing on the question of "is it constitutional?". It's a very different kind of question. When all that can be said is that laws X, Y, and Z form the basis for action C, we have a fundamental failure at interrogating lawmakers and enforcement officials to ensure they are not complicit in violating the Constitution.
  - AnthonyMouse 13y ago
    >So: whose ideas of "right" and "wrong" are we using? That's the whole problem, isn't it? What the law is now can't be the standard for what the law should be or it can never change. But if we can't use legality to determine morality and morality in general is considered subjective then what are we supposed to do, flip a coin? Obviously the answer is that we collectively have to define "wrong" based on logic, evidence and history. (The alternatives of basing it on "might makes right" or "loudest voice wins" may be popular but, at the risk of creating a cycle, that isn't right.) So we need to have a debate. We need to see the evidence. How many terrorists have been foiled with this surveillance? How many could have been caught some other way and what would that have required? What are the risks to the public of allowing the government to accumulate this information? How does the one weigh against the other? The problem is that we can't have the debate so long as they insist on keeping the evidence a secret. Which is why the secrecy itself is wrong -- it allows for unaccountable government power, which based on logic, evidence and history can lead to Very Bad Things That Must Never Happen Again.
throwaway10001 13y ago
You have it wrong. Congress passes law to say, intercept all phone calls and store them. Until a court strikes it down is assumed constitutional and legal. You challenge it and then it becomes illegal and unconstitutional. (The court also changes its mind from time to time so it's not an exact science.)
- bmelton 13y ago
  The only thing we have wrong is that for many years we have allowed Congress to get away with implementing laws that are clearly unconstitutional.
- monochromatic 13y ago
  It doesn't become unconstitutional when a court says so. From its inception either it is, or it isn't. The issue simply isn't decided until the court says so.
  - throwaway10001 13y ago
    It doesn't become unconstitutional when a court says so. From its inception either it is, or it isn't. The issue simply isn't decided until the court says so. From a practical point of view there's no difference, we can split hairs if you want.
    - argumentum 13y ago
      There's obviously a difference .. the SC's decision can be applied retroactively to the cases in question.
  - NegativeK 13y ago
    Applying binary, a priori rigor to things that are written and interpreted by humans feels like the wrong path to go down.
  - rayiner 13y ago
    > The issue simply isn't decided until the court says so. Right. The NSA can make a good faith argument that they designed the program to stay within the bounds of Constitutionality. Their opinion can't override that of the Supreme Court, but until the Supreme Court rules they are entitled to try and interpret the law and act accordingly.

leoc 13y ago

> As for Section 702 of FISA, the Supreme Court has held that the Fourth Amendment does not protect foreigners from searches conducted abroad. But PRISM, as opposed to "upstream collection", isn't (necessarily) about searching foreigners abroad, or even at the border. It's about searching their stuff held on servers (sometimes) located inside the US and run by US companies as part of a business agreement with those foreigners. (However I have heard it suggested (IANAL) that sufficient legal cleverness can allow this to be characterised as a border search.) > But it has never recognized a foreign intelligence exception to the warrant requirement when foreign-targeted searches result in the collection of vast stores of citizens’ communications. Maybe. However the FISA appeals court certainly appears (IANAL) to have decided that a foreign-intelligence exception exists https://news.ycombinator.com/item?id=5917223 https://news.ycombinator.com/item?id=5917223 . Once again, from the Yahoo! case ruling http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf : 2 . The Foreign Intelligence Exception . The recurrent theme permeating the petitioner's arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment's Warrant Clause. 6 The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement. And again, this is a ruling on a law which allowed intentional targetting of US persons, though outside the United States.

pyre 13y ago
| However I have heard it suggested (IANAL) that | sufficient legal cleverness can allow this to be | characterised as a border search. Every airport is considered a 'border.' So even cities that are greater than 100 miles from a land border, or the ocean have a 100 mile circle around their airport where 'border searches' can happen. It doesn't take much legal cleverness to apply this to foreigners accessing US-based resources while sitting at home in a foreign country.
- leoc 13y ago
  But a PRISM 702 doesn't even apply while you access your cloud data; it's simply an authorisation to go in and take any or all of it (and then monitor your later accesses) regardless of whether you've even been near it recently or not. In any case, even if a PRISM search is a border search (not necessarily a search at the border) it's certainly not a search conducted abroad, at least when the servers with the user data are inside the US.

confluence 13y ago

I do find arguments based on strict legality to be just a tad strange. Just because something is strictly legal doesn't mean that it's right, nor that it's in the spirit that the law originally intended. I mean, it was legal to exterminate Jews in Nazi Germany, send millions to death camps in Soviet Russia and starve 10s of millions to death in Communist China. Strict legality is particularly low bar to pass. What happened to the spirit of the law? What happened to public discussions of the law? What happened to proportional use of the justice system? What happened to basic human rights? Maybe I'm just naive, but when people hide behind the "Well it's legal! A secret court said so!" charade, even when they know that that it doesn't follow the spirit of the laws that they currently operate under, it just pisses me off. It's kind of like when someone cheats a system using a secret loophole that was clearly not intended to be used for that purpose. The person then turns around and says that it's a perfectly legitimate move. They then move forward on the assumption that the mere existence of said loophole gives them carte blanche to just do whatever they hell they want to do. It appears as though the NSA has hacked the legal system.

genwin 13y ago
> ... even when they know that that it doesn't follow the spirit of the laws that they currently operate under, it just pisses me off. Same here. A lot of this was going on in the 2000s. I'd ask them, so if it was legal to kick toddlers in the face, you'd be okay with that? They define "sheeple".
austenallred 13y ago
Bingo. The entire NSA hearing a few days ago was NSA directors pointing out under which law they perform each action. They could do it, because according to US law it is legal. The much more deep rooted question is "is this good?" Every aspect of law in the United States can be changed and rewritten according to the conscious of the people, though this takes a long time to do. Legality is temporary. Under ideal circumstances we would debate "right vs wrong" and change laws accordingly.
- alexqgb 13y ago
  There's also a big difference between new law - which can be batshit insane - and settled law, which has both passed constitutional muster and become widely accepted. Trying to reconcile "consent of the governed" with "secret law" goes in the opposite direction.

coldcode 13y ago

I'm sure the NSA has enough interesting information on the supremes to ensure that a constitutional ruling never happens.

FamousWarrior 13y ago

If it's unconstitutional, it is illegal, period.