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I have to admit, I didn't realize before this how explicitly the Bill of Rights forbids fishing expeditions. If I were working at the NSA I'd be worried about

by pg 13y ago

I have to admit, I didn't realize before this how explicitly the Bill of Rights forbids fishing expeditions. If I were working at the NSA I'd be worried about that. It may be inconvenient to be restrained by the constitution, but violating it seems the policy equivalent of selling one's soul to the devil. Once you've started down that road, where do you stop?

lupatus 13y ago
First, according to Wikipedia, they can't use the PRISM data against you without a warrant; which means that they are operating all this within the 4th Amendment's restrictions (so why do we need to restore the 4th if it isn't broken...?)[1]. Second, Article IV, Section 4, of the US Constitution states that it is the duty of the Federal Government to protect the states against invasion and domestic violence[2]. Clandestine surveillance programs have long been tools of governments to accomplish such goals; PRISM is just a 21st century version. Furthermore, the US Government has LOTS of tools at it's disposal that _could_ be used to implement a tyrannical state. But, the beauty of the American system is that we have checks and balances in place to prevent these tools from being abused in a tyrannical manner. In conclusion, it seems to me that PRISM is a necessary and justified government function. This makes me wonder who exactly is benefiting from the Obama administration receiving so much bad press because it seems that they really are being unjustly crucified (and this is coming from someone who voted against Obama both times). [1] https://en.wikipedia.org/wiki/PRISM_(surveillance_program) https://en.wikipedia.org/wiki/PRISM_(surveillance_program), paragraph 4. [2] https://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America#Article_IV https://en.wikisource.org/wiki/Constitution_of_the_United_St...
- tlogan 13y ago
  I'm not constitutional scholar but text just says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". In other words, I have right that my things are not subject of unreasonable search (and fishing expedition searching for patterns seems unreasonable - why do they think I might be a terrorist or connected with terrorists?). I don't care whether it will used against me or not but my right is that gov does not do that without warrant.
  - ewoodrich 13y ago
    But what are intangible phone records? Are they "persons, houses, or papers"? Probably not. Maybe they're "effects", but that still would historically suggest physical property. However, the Supreme Court has clarified these issues in a number of decisions, which is why our law is primarily based on judicial precedent, and not literal interpretation. That may or not be a good thing, but it's the way our legal system is in fact designed to work.
    - tlogan 13y ago
      Yes - we did have "weird" interpretation of our constitution. Like putting of Japanese Americans in concentration camps (the Supreme Court called it "military necessity"). But eventually public perception changed and the interpretation of our constitution was corrected. So as first step I want to hear from Supreme Court whether this is constitutional. But NSA says that what they are doing is secret, so ...
    - dllthomas 13y ago
      Bits are "papers" - then the only mechanism for storing information.
    - RockyMcNuts 13y ago
      I think one weird part NSA seems to rely on is... what constitutes a search? Intelligence testimony seems to have implied they thought they could hoover up all this information, and as long as only machines look at it, and when humans do, they have a 51% belief it's a foreign person <wink, wink> and do 'minimization' when it's not <wink, wink>, it's constitutional. https://www.eff.org/deeplinks/2013/06/director-national-intelligences-word-games-explained-how-government-deceived https://www.eff.org/deeplinks/2013/06/director-national-inte... information is considered to be “collected” only after it has been “received for use by an employee of a DoD intelligence component” Of course, they also think they can lie to Congress, after being warned in advance about the question, being given a chance to correct it after the testimony, and say they didn't think about this particular activity, and gave the 'least untruthful answer'. http://www.guardian.co.uk/world/2013/jul/02/james-clapper-senate-erroneous http://www.guardian.co.uk/world/2013/jul/02/james-clapper-se... So I would say we need to have an open debate about exactly what they're doing, and have the Supreme Court, whose job it is, define what those terms mean and what they can do, instead of letting them make it up as they go along, and then lie about it.
- rickhanlonii 13y ago
  First, Wikipedia is not an authoritative source for government programs in which little is known by the public. By the very nature of being information which is classified or higher, in order for details of actual usage to be outlined on Wikipedia, an editor with access to that classified information would need to break federal law and put Wikipedia in a position of question legality. That's not to say that it's not a fact that PRISM data is only used against a person when there is a warrant, but it is to say that we don't know that that is the case. Second, no reasonable person with a decent understanding of this issue is claiming that the NSA isn't legally justifying their actions. Indeed, the NSA is using--as expected--national security in part as a motivating legal justification, and invoking Article IV Section 4. It is agreed: national security is their intelligence directive. Nor are such people claiming that the government hasn't previously used secret surveillance programs, or that the government is necessarily intentionally tyrannical. What we are saying is that legal justification aside, we want the details of this directive in the public conversation so that We the People can decide if we approve of the actions. We the People are the governors of this country, and We the People have the power to change the laws or the Constitution if we decide that the actions are not justifiable, are not reconcilable with liberty, or if the system of checks and balances have failed to check or balance. This is a dangerous situation. If Snowden's claims are correct, not only are we being overbearingly surveilled, but that data is dangerously aggregated. Even if we are to assume complete benevolence and complete competence in our government (even government actors who may be under-paid and under-invested in their duties), then there is still a very real possibility that people who would seek destruction could acquire possession of that data, gaining a catastrophic trove of information about not just the American public--who would probably be protected by the overbearing force of the U.S. Military--but also the public of the rest of the world. In conclusion, it seems to me that we can't know that PRISM or associated programs are necessary and justified government functions, because we know nothing about them. Of the 300,000,000+ people in the United States, 435 are in a position of both knowledge and decision on those policies, and given the importance of this issue that's just not good enough. Especially when it is undisputed that those 435 people can't do their job even minimally effectively.
  - lupatus 13y ago
    I'm pretty sure that pg _was_ implying that the NSA program was frowned upon by the laws in the Bill of Rights; while it seems that the NSA is in fact complying with all applicable laws (based on what the government has revealed, as quoted in Wikipedia and other media outlets). Regardless of whether Snowden is correct or not, I think that there are government functions that the general public should not be informed of. Having a policy of detailing the exact nature of PRISM could be just as damaging as, say, having a policy of publicly detailing all planned drone strikes. I bet the NSA's job is already harder because of Snowden's leaks. I also think that there is a very real possibility that people who would seek destruction could acquire possession of an aircraft carrier's control systems or the control systems of the missile defense shield. Should the US not pursue those tools because of that possibility, too? The citizenry will have a hard time exercising it's natural rights to participate in debates about national policies in the American Republic if each citizen has to also worry about protecting himself from thieves/bandits/pirates/foreign armies.
- monsterix 13y ago
  > the beauty of the American system is that we have checks and balances in place to prevent these tools from being abused in a tyrannical manner. Are you sure about this assumption? That no brute force, human rights violation, wrong doings have been committed both inside and outside of US? Would you please explain your reasoning more? I hope we understand that the American system has worked even without PRISM for as long as I have known and read about American history. And quite efficiently at that. So why is Dragnet needed so much now? > Furthermore, the US Government has LOTS of tools at it's disposal that _could_ be used to implement a tyrannical state. Let's say such a tyrannical state is inevitably implemented one day. 1. I am curious to understand how you would logically conclude and arrive (I mean agree to agree) at evaluating a _tyrannical_presence_ = true; 2. What checks and balances you indicate are going to be mechanisms at disposal with people to get rid of such a tyranny? From what it seems none of your arguments are true at the moment.
MichaelApproved 13y ago
What's especially frustrating is that there really isn't a penalty for violating these rights. The people have to fight tooth and nail to push the gov't back to the point where they respect privacy rights. At the end of the struggle, if the people win their rights back, we're just back to where we were supposed to be and there's nothing to stop the gov't from trying again. It's a battle of bulges. They cross the line in one place, we push them back. They cross again in another place, we push them back again. Without penalties, there's no end to this.
kevinalexbrown 13y ago
I'm slightly less worried that the NSA wants to optimize their interpretation of the constitution to catch bad guys than I am about how little effort it takes to push that interpretation through. To turn your comment around a little bit in a way that places responsibility on normal citizens or congresspeople instead of the NSA, it's inconvenient to disagree with authority, or deal with a lie, but once you start conceding rights or letting one branch of government lie to another, where do you stop? What's tolerated is encouraged, as most parents would suggest[0]. When this broke, a lot of people said "we already knew!" We did. But when you're explicitly confronted with something, you get to decide whether you're going to tolerate it or not. In fact, you have to - there's no way to not decide whether to tolerate something or not. 0. Incidentally, I wish we would start seeing ourselves as parents of a gov, if for no other reason than to not see ourselves as children.
pvnick 13y ago
Paul, so happy to see you make a supportive comment on this. I agree with what you've said completely. With all of the awareness and momentum building in the privacy sphere I hope there's room opening up for startups that are explicitly anti-data. I say that with a lot of irony considering I worked as a data scientist at a startup for the past several years.
ewoodrich 13y ago
Although, by virtue of its basis in English common law, laws in the US (including the constitution), are not subject to textual interpretation by laypersons, but instead clarified through judicial precedent. There have been numerous exceptions to search and seizure protections in Supreme Court decisions (drunk driving checkpoints, for instance). This case law holds much more practical weight than the specific text which may be morphed over time by the corpus of precedent. This goes both ways (we have a Supreme Court endowed "right to privacy" that is nowhere in the constitution specifically, but results from cumulative analysis of several amendments). The language in the constitution may seem extremely cut and dry, but there are at least ten thousand lines of binding precedent for each word in the bill of rights.
- reedlaw 13y ago
  But from where does the Supreme Court get the authority to be the ultimate arbitrator on the meaning of the constitution? Surely words have meaning outside of SCOTUS interpretations.
  - cdcarter 13y ago
    Marbury v Madison is the case where judicial review was formalized, but Article III offers an implied power. WIkipedia has a fairly solid article on the history of judicial review in the US.
    - otisfunkmeyer 13y ago
      link for lazy-like-me: http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States http://en.wikipedia.org/wiki/Judicial_review_in_the_United_S...
  - jfarmer 13y ago
    This is the fundamental difference between common law and civil law and is how most legal systems outside of former British colonies work. Common law is a more conservative approach in many ways, because laws are seen not as coming from some abstract, idealized system designed years and years ago, but strongly informed by the history of the law as lived through the people subject to it. For example, take the 4th amendment. We're protected from "unreasonable searches and seizures." If you're pulled over for an arrest, does a police officer have the right to search your car? Your glovebox? Your trunk? How about your cellphone? Is the answer, "No, unless Congress passess a law?" Is it, "No, even if Congress passes a law?" If the latter, how do we know and when? What if judges disagree? That's not even to point out that "unreasonable" not only varies between individuals but across time. John Adams didn't think the Alien and Sedition Acts were unconstitutional, for example, though Thomas Jefferson surely did. And what would be considered "unreasonable" to them might be wholly reasonable to us, or vice versa. Congress or other legislative bodies are free to pass laws that specify intent, BTW. They're just awful at it. Really awful. So awful that the same Congress might pass two laws with obviously contradictory intent. Or pass laws which are deliberately open to multiple interpretations for the sake of getting a bill passed more quickly.
deleted 13y ago
[deleted]
taproot 13y ago
> Once you've started down that road, where do you stop? On the corner of hitler road and stalin street.
rayiner 13y ago
There is a basic impedance mismatch between the 4th and what technologists want the 4th to mean, which is this: even a liberal interpretation of the 4th amendment still characterizes it as a protection of privacy, but what the NSA is doing isn't an invasion of your most intimate private information so much as it's a potentially scary gathering together of information that isn't really all that private but could be harmful by virtue of aggregation. The 4th amendment speaks in terms that are deeply intimate: your "person" and your "house" and your "papers." It's talking about your coat pocket and your desk drawer, places that nobody has access to except for those closest to you. But the row over the NSA's activity is about information that literally hundreds of people (people who you have never even met!) at AT&T, Google, Facebook, etc, have access to. The fear is not people seeing information that was not meant for other eyes to see, because as a matter of fact we voluntarily expose that information to hundreds of other eyes, but rather the government aggregating information that could be abused. I think the impedance mismatch is most clearly illustrated when you try to apply the text of the 4th amendment to something like the NSA getting call detail records from AT&T, or search histories from Google. The 4th amendment very clearly refers to "their... papers." To this English speaker, it strains the definition of "their" (i.e. "your's") to say that some electronic record that AT&T or Google generated that you never even had access to much less actually possessed is nonetheless "your" private paper or effect. It doesn't make any sense at all.
- ericd 13y ago
  Obviously it doesn't make sense to apply the wording directly to call detail records, it was written before the invention of non-paper telecommunications. Their intent given their context is pretty clear. And people don't generally view their call records as something that's expected to be public. Many people would be rather embarrassed if their call records were made public. Same for their search histories, and they wouldn't feel comfortable with the idea that there's a person on the other side of the screen reading their queries if they didn't think it was all completely anonymous. The government is trying to break that wall of anonymity.
  - worldimperator 13y ago
    When ruling against government 'trojan horses' infecting private computers, the German Constitutional Court used a similar idea, thereby extending the German contitution's equivalent of integrity of the home by introducing a new 'Fundamental right to confidentiality and integrity of information systems'. So this is something that can also be interpreted in a modern way. I realize that the court ruling was about private computers, not data on servers, but as you said, it makes a difference if the informations systems you use can be expected to produce 'public' records.
robomartin 13y ago
> Once you've started down that road, where do you stop? Well. You don't. And that's the horrifying reality we are waking up to. The data gathering and political targeting by groups such as NSA and IRS are more than likely the tip of a really ugly iceberg. I think the fundamental lesson here is to remain engaged and, as citizens, make sure that government always sees us as their masters and not their property. Restore balance to the force we must.
rdl 13y ago
Law enforcement has been conducting fishing expeditions since at least the Clinton years -- going after Swiss and Caribbean banking records to find tax evaders is pretty clearly the definition of a fishing expedition. License plate scanners. Checkpoints. All of these are legal by a narrow reading of the law, but fundamentally against the spirit of the Constitution.
osth 13y ago
That's a little scary. I would have figured smart programmers would know these things. Most of the case law that has shaped this area of jurisprudence involves obvious criminals, mainly those who would be prosecuted for illegal drug possession. One could read all those cases, say, while in law school, and think "Why do we need to be so careful to observe the protections of 4th Amendment? Aren't we just protecting drug dealers and other criminals? Aren't we just making the job of the police more difficult?" But one could also conclude that it is the Constitutional principles we are exercising such caution to protect, not the obvious criminals who sometimes might escape prosecution as a result of forcing police to "follow the rules". In the context of modern telephone and internet surveillence (which in the coming decade or two will become one in the same, when AT&T is fully transitioned to TCP/IP), one might reason that there's little need to observe the 4th Amendment as it only protects criminals, would-be criminals or citizens with "something to hide". The net is widening. Instead of the undesirable side effect of having guilty parties (e.g. drug dealers) get away because of the hassle to police of following the rules so as not to collect inadmissible evidence, it seems like we are headed for a different sort of undesired side effect. When all evidence is by default "lawfully" collected (because it's so easy to collect it and people have over time assented to this by failing to object to it): innocent parties are likely to get swept up in what will become a massive dragnet.

by pg 13y ago

lupatus 13y ago

First, according to Wikipedia, they can't use the PRISM data against you without a warrant; which means that they are operating all this within the 4th Amendment's restrictions (so why do we need to restore the 4th if it isn't broken...?)[1]. Second, Article IV, Section 4, of the US Constitution states that it is the duty of the Federal Government to protect the states against invasion and domestic violence[2]. Clandestine surveillance programs have long been tools of governments to accomplish such goals; PRISM is just a 21st century version. Furthermore, the US Government has LOTS of tools at it's disposal that _could_ be used to implement a tyrannical state. But, the beauty of the American system is that we have checks and balances in place to prevent these tools from being abused in a tyrannical manner. In conclusion, it seems to me that PRISM is a necessary and justified government function. This makes me wonder who exactly is benefiting from the Obama administration receiving so much bad press because it seems that they really are being unjustly crucified (and this is coming from someone who voted against Obama both times). [1] https://en.wikipedia.org/wiki/PRISM_(surveillance_program) https://en.wikipedia.org/wiki/PRISM_(surveillance_program), paragraph 4. [2] https://en.wikisource.org/wiki/Constitution_of_the_United_States_of_America#Article_IV https://en.wikisource.org/wiki/Constitution_of_the_United_St...

tlogan 13y ago
I'm not constitutional scholar but text just says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". In other words, I have right that my things are not subject of unreasonable search (and fishing expedition searching for patterns seems unreasonable - why do they think I might be a terrorist or connected with terrorists?). I don't care whether it will used against me or not but my right is that gov does not do that without warrant.
- ewoodrich 13y ago
  But what are intangible phone records? Are they "persons, houses, or papers"? Probably not. Maybe they're "effects", but that still would historically suggest physical property. However, the Supreme Court has clarified these issues in a number of decisions, which is why our law is primarily based on judicial precedent, and not literal interpretation. That may or not be a good thing, but it's the way our legal system is in fact designed to work.
  - tlogan 13y ago
    Yes - we did have "weird" interpretation of our constitution. Like putting of Japanese Americans in concentration camps (the Supreme Court called it "military necessity"). But eventually public perception changed and the interpretation of our constitution was corrected. So as first step I want to hear from Supreme Court whether this is constitutional. But NSA says that what they are doing is secret, so ...
  - dllthomas 13y ago
    Bits are "papers" - then the only mechanism for storing information.
  - RockyMcNuts 13y ago
    I think one weird part NSA seems to rely on is... what constitutes a search? Intelligence testimony seems to have implied they thought they could hoover up all this information, and as long as only machines look at it, and when humans do, they have a 51% belief it's a foreign person <wink, wink> and do 'minimization' when it's not <wink, wink>, it's constitutional. https://www.eff.org/deeplinks/2013/06/director-national-intelligences-word-games-explained-how-government-deceived https://www.eff.org/deeplinks/2013/06/director-national-inte... information is considered to be “collected” only after it has been “received for use by an employee of a DoD intelligence component” Of course, they also think they can lie to Congress, after being warned in advance about the question, being given a chance to correct it after the testimony, and say they didn't think about this particular activity, and gave the 'least untruthful answer'. http://www.guardian.co.uk/world/2013/jul/02/james-clapper-senate-erroneous http://www.guardian.co.uk/world/2013/jul/02/james-clapper-se... So I would say we need to have an open debate about exactly what they're doing, and have the Supreme Court, whose job it is, define what those terms mean and what they can do, instead of letting them make it up as they go along, and then lie about it.
rickhanlonii 13y ago
First, Wikipedia is not an authoritative source for government programs in which little is known by the public. By the very nature of being information which is classified or higher, in order for details of actual usage to be outlined on Wikipedia, an editor with access to that classified information would need to break federal law and put Wikipedia in a position of question legality. That's not to say that it's not a fact that PRISM data is only used against a person when there is a warrant, but it is to say that we don't know that that is the case. Second, no reasonable person with a decent understanding of this issue is claiming that the NSA isn't legally justifying their actions. Indeed, the NSA is using--as expected--national security in part as a motivating legal justification, and invoking Article IV Section 4. It is agreed: national security is their intelligence directive. Nor are such people claiming that the government hasn't previously used secret surveillance programs, or that the government is necessarily intentionally tyrannical. What we are saying is that legal justification aside, we want the details of this directive in the public conversation so that We the People can decide if we approve of the actions. We the People are the governors of this country, and We the People have the power to change the laws or the Constitution if we decide that the actions are not justifiable, are not reconcilable with liberty, or if the system of checks and balances have failed to check or balance. This is a dangerous situation. If Snowden's claims are correct, not only are we being overbearingly surveilled, but that data is dangerously aggregated. Even if we are to assume complete benevolence and complete competence in our government (even government actors who may be under-paid and under-invested in their duties), then there is still a very real possibility that people who would seek destruction could acquire possession of that data, gaining a catastrophic trove of information about not just the American public--who would probably be protected by the overbearing force of the U.S. Military--but also the public of the rest of the world. In conclusion, it seems to me that we can't know that PRISM or associated programs are necessary and justified government functions, because we know nothing about them. Of the 300,000,000+ people in the United States, 435 are in a position of both knowledge and decision on those policies, and given the importance of this issue that's just not good enough. Especially when it is undisputed that those 435 people can't do their job even minimally effectively.
- lupatus 13y ago
  I'm pretty sure that pg _was_ implying that the NSA program was frowned upon by the laws in the Bill of Rights; while it seems that the NSA is in fact complying with all applicable laws (based on what the government has revealed, as quoted in Wikipedia and other media outlets). Regardless of whether Snowden is correct or not, I think that there are government functions that the general public should not be informed of. Having a policy of detailing the exact nature of PRISM could be just as damaging as, say, having a policy of publicly detailing all planned drone strikes. I bet the NSA's job is already harder because of Snowden's leaks. I also think that there is a very real possibility that people who would seek destruction could acquire possession of an aircraft carrier's control systems or the control systems of the missile defense shield. Should the US not pursue those tools because of that possibility, too? The citizenry will have a hard time exercising it's natural rights to participate in debates about national policies in the American Republic if each citizen has to also worry about protecting himself from thieves/bandits/pirates/foreign armies.
monsterix 13y ago
> the beauty of the American system is that we have checks and balances in place to prevent these tools from being abused in a tyrannical manner. Are you sure about this assumption? That no brute force, human rights violation, wrong doings have been committed both inside and outside of US? Would you please explain your reasoning more? I hope we understand that the American system has worked even without PRISM for as long as I have known and read about American history. And quite efficiently at that. So why is Dragnet needed so much now? > Furthermore, the US Government has LOTS of tools at it's disposal that _could_ be used to implement a tyrannical state. Let's say such a tyrannical state is inevitably implemented one day. 1. I am curious to understand how you would logically conclude and arrive (I mean agree to agree) at evaluating a _tyrannical_presence_ = true; 2. What checks and balances you indicate are going to be mechanisms at disposal with people to get rid of such a tyranny? From what it seems none of your arguments are true at the moment.

MichaelApproved 13y ago

What's especially frustrating is that there really isn't a penalty for violating these rights. The people have to fight tooth and nail to push the gov't back to the point where they respect privacy rights. At the end of the struggle, if the people win their rights back, we're just back to where we were supposed to be and there's nothing to stop the gov't from trying again. It's a battle of bulges. They cross the line in one place, we push them back. They cross again in another place, we push them back again. Without penalties, there's no end to this.

kevinalexbrown 13y ago

I'm slightly less worried that the NSA wants to optimize their interpretation of the constitution to catch bad guys than I am about how little effort it takes to push that interpretation through. To turn your comment around a little bit in a way that places responsibility on normal citizens or congresspeople instead of the NSA, it's inconvenient to disagree with authority, or deal with a lie, but once you start conceding rights or letting one branch of government lie to another, where do you stop? What's tolerated is encouraged, as most parents would suggest[0]. When this broke, a lot of people said "we already knew!" We did. But when you're explicitly confronted with something, you get to decide whether you're going to tolerate it or not. In fact, you have to - there's no way to not decide whether to tolerate something or not. 0. Incidentally, I wish we would start seeing ourselves as parents of a gov, if for no other reason than to not see ourselves as children.

pvnick 13y ago

Paul, so happy to see you make a supportive comment on this. I agree with what you've said completely. With all of the awareness and momentum building in the privacy sphere I hope there's room opening up for startups that are explicitly anti-data. I say that with a lot of irony considering I worked as a data scientist at a startup for the past several years.

ewoodrich 13y ago

Although, by virtue of its basis in English common law, laws in the US (including the constitution), are not subject to textual interpretation by laypersons, but instead clarified through judicial precedent. There have been numerous exceptions to search and seizure protections in Supreme Court decisions (drunk driving checkpoints, for instance). This case law holds much more practical weight than the specific text which may be morphed over time by the corpus of precedent. This goes both ways (we have a Supreme Court endowed "right to privacy" that is nowhere in the constitution specifically, but results from cumulative analysis of several amendments). The language in the constitution may seem extremely cut and dry, but there are at least ten thousand lines of binding precedent for each word in the bill of rights.

reedlaw 13y ago
But from where does the Supreme Court get the authority to be the ultimate arbitrator on the meaning of the constitution? Surely words have meaning outside of SCOTUS interpretations.
- cdcarter 13y ago
  Marbury v Madison is the case where judicial review was formalized, but Article III offers an implied power. WIkipedia has a fairly solid article on the history of judicial review in the US.
  - otisfunkmeyer 13y ago
    link for lazy-like-me: http://en.wikipedia.org/wiki/Judicial_review_in_the_United_States http://en.wikipedia.org/wiki/Judicial_review_in_the_United_S...
- jfarmer 13y ago
  This is the fundamental difference between common law and civil law and is how most legal systems outside of former British colonies work. Common law is a more conservative approach in many ways, because laws are seen not as coming from some abstract, idealized system designed years and years ago, but strongly informed by the history of the law as lived through the people subject to it. For example, take the 4th amendment. We're protected from "unreasonable searches and seizures." If you're pulled over for an arrest, does a police officer have the right to search your car? Your glovebox? Your trunk? How about your cellphone? Is the answer, "No, unless Congress passess a law?" Is it, "No, even if Congress passes a law?" If the latter, how do we know and when? What if judges disagree? That's not even to point out that "unreasonable" not only varies between individuals but across time. John Adams didn't think the Alien and Sedition Acts were unconstitutional, for example, though Thomas Jefferson surely did. And what would be considered "unreasonable" to them might be wholly reasonable to us, or vice versa. Congress or other legislative bodies are free to pass laws that specify intent, BTW. They're just awful at it. Really awful. So awful that the same Congress might pass two laws with obviously contradictory intent. Or pass laws which are deliberately open to multiple interpretations for the sake of getting a bill passed more quickly.

deleted 13y ago

[deleted]

taproot 13y ago

> Once you've started down that road, where do you stop? On the corner of hitler road and stalin street.

rayiner 13y ago

There is a basic impedance mismatch between the 4th and what technologists want the 4th to mean, which is this: even a liberal interpretation of the 4th amendment still characterizes it as a protection of privacy, but what the NSA is doing isn't an invasion of your most intimate private information so much as it's a potentially scary gathering together of information that isn't really all that private but could be harmful by virtue of aggregation. The 4th amendment speaks in terms that are deeply intimate: your "person" and your "house" and your "papers." It's talking about your coat pocket and your desk drawer, places that nobody has access to except for those closest to you. But the row over the NSA's activity is about information that literally hundreds of people (people who you have never even met!) at AT&T, Google, Facebook, etc, have access to. The fear is not people seeing information that was not meant for other eyes to see, because as a matter of fact we voluntarily expose that information to hundreds of other eyes, but rather the government aggregating information that could be abused. I think the impedance mismatch is most clearly illustrated when you try to apply the text of the 4th amendment to something like the NSA getting call detail records from AT&T, or search histories from Google. The 4th amendment very clearly refers to "their... papers." To this English speaker, it strains the definition of "their" (i.e. "your's") to say that some electronic record that AT&T or Google generated that you never even had access to much less actually possessed is nonetheless "your" private paper or effect. It doesn't make any sense at all.

ericd 13y ago
Obviously it doesn't make sense to apply the wording directly to call detail records, it was written before the invention of non-paper telecommunications. Their intent given their context is pretty clear. And people don't generally view their call records as something that's expected to be public. Many people would be rather embarrassed if their call records were made public. Same for their search histories, and they wouldn't feel comfortable with the idea that there's a person on the other side of the screen reading their queries if they didn't think it was all completely anonymous. The government is trying to break that wall of anonymity.
- worldimperator 13y ago
  When ruling against government 'trojan horses' infecting private computers, the German Constitutional Court used a similar idea, thereby extending the German contitution's equivalent of integrity of the home by introducing a new 'Fundamental right to confidentiality and integrity of information systems'. So this is something that can also be interpreted in a modern way. I realize that the court ruling was about private computers, not data on servers, but as you said, it makes a difference if the informations systems you use can be expected to produce 'public' records.

robomartin 13y ago

> Once you've started down that road, where do you stop? Well. You don't. And that's the horrifying reality we are waking up to. The data gathering and political targeting by groups such as NSA and IRS are more than likely the tip of a really ugly iceberg. I think the fundamental lesson here is to remain engaged and, as citizens, make sure that government always sees us as their masters and not their property. Restore balance to the force we must.

rdl 13y ago

Law enforcement has been conducting fishing expeditions since at least the Clinton years -- going after Swiss and Caribbean banking records to find tax evaders is pretty clearly the definition of a fishing expedition. License plate scanners. Checkpoints. All of these are legal by a narrow reading of the law, but fundamentally against the spirit of the Constitution.

osth 13y ago

That's a little scary. I would have figured smart programmers would know these things. Most of the case law that has shaped this area of jurisprudence involves obvious criminals, mainly those who would be prosecuted for illegal drug possession. One could read all those cases, say, while in law school, and think "Why do we need to be so careful to observe the protections of 4th Amendment? Aren't we just protecting drug dealers and other criminals? Aren't we just making the job of the police more difficult?" But one could also conclude that it is the Constitutional principles we are exercising such caution to protect, not the obvious criminals who sometimes might escape prosecution as a result of forcing police to "follow the rules". In the context of modern telephone and internet surveillence (which in the coming decade or two will become one in the same, when AT&T is fully transitioned to TCP/IP), one might reason that there's little need to observe the 4th Amendment as it only protects criminals, would-be criminals or citizens with "something to hide". The net is widening. Instead of the undesirable side effect of having guilty parties (e.g. drug dealers) get away because of the hassle to police of following the rules so as not to collect inadmissible evidence, it seems like we are headed for a different sort of undesired side effect. When all evidence is by default "lawfully" collected (because it's so easy to collect it and people have over time assented to this by failing to object to it): innocent parties are likely to get swept up in what will become a massive dragnet.