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The NSA's Surveillance Is Unconstitutional

203 points by jalanco 13y ago

clarkevans 13y ago
Does anyone realistically think this program will be rolled back? Presuming for a moment that all the information collected by NSA is, in fact, public information, it seems to me that the primary problem isn't collection but asymmetric access and hence power differential between the state and those governed. Why should the government have exclusive access to this information while the general public doesn't? If this treasure trove of personal connection graphs, cell phone discussions, location information, is all truly public and not subject to a judge issued targeted warrant, then, why shouldn't this public information be available to any member of the public? This new information could be a boon for Democracy and completely change how we understand and interact with Government. Why shouldn't technology impact how we organize our society? Politicians and civil servants, who have the consent of the governed, take an oath to uphold the constitution and put the interest of the people above their own. If the general public should be tracked to such precision, at the very least, why shouldn't interactions in the public affairs of our elected and appointed and contracted officials, done on our behalf, be subject to the same level of scrutiny?
- hga 13y ago
  As to rolling them back, there is precedent: http://en.wikipedia.org/wiki/Church_Committee http://en.wikipedia.org/wiki/Church_Committee Otherwise the wag who penned Government Builds Free Cloud-Based Backup for an Ungrateful Nation (https://news.ycombinator.com/item?id=6012941 https://news.ycombinator.com/item?id=6012941) sort of addresses your other points.
  - nodata 13y ago
    s/president/precedent/;
  - area51org 13y ago
    I think there's a fair chance we could actually roll this back, given enough pressure and attention. The question is how to know that the NSA/CIA is really not monitoring us. Answer: citizen groups watching the watchers. That's right: we monitor the NSA and the CIA, and if blocked, immediate court action. I'm not saying this will really happen. But I don't think it's impossible, and I think many of us would agree that it's warranted.
    - jfoutz 13y ago
      Well, they could roll it back, or they could get better at keeping secrets.
      - gtaylor 13y ago
        Until they get caught again, potentially facing an even bigger crapstorm.
      - area51org 13y ago
        Yeah, that's why the citizen oversight. We can't trust the government to police itself, obviously.
    - flyinRyan 13y ago
      We could know by shutting them down and making the concept of secret courts illegal.
- pvnick 13y ago
  >Does anyone realistically think this program will be rolled back? I for one plan on making a ton of noise until that happens.
  - disposition2 13y ago
    We've been making noise since 2001 before the Patriot Act was passed, then in 2007 when they granted retroactive immunity to the telecoms who where assisting with the illegal wiretapping, and now again in 2013 when we received some PPT slides that confirm what we thought in 2001. I'm not trying to be a negative nancy, nor saying stop making noise, just that it's been going on for 12+ years (if not longer) and the powers that could stop it can hardly tie their shoes without an argument on how to tie them correctly. Hopefully more people will wise up to the blatant disregard for the law and demand further action.
    - gtaylor 13y ago
      Disclaimer: This is not directed at disposition in particular, it's more of a general observation. > I'm not trying to be a negative nancy, nor saying stop making noise, just that it's been going on for 12+ years (if not longer) and the powers that could stop it can hardly tie their shoes without an argument on how to tie them correctly. The length of time that something has gone on does not change the fact that it is fundamentally wrong. The only difference is that I am now, 12+ years later, more disgruntled than I was back when it started. I feel like some people use the fact that this has been ongoing as some way to say "Oh, this isn't as big a deal as you're making it out to be." No, screw you. Also, we as a population have to stop with the "it's never going to change, why bother?" mentality and get involved. It's definitely never going to change if we continue to be so apathetic as a group.
      - willurd 13y ago
        > No, screw you. This is how I feel every time I hear someone make excuses for things like this. It's less "screw you, I hate you" and more "screw you, wake the hell up".
    - 13y ago
- smoorman1024 13y ago
  >Why shouldn't technology impact how we organize our society? Politicians and civil servants, who have the consent of the governed, take an oath to uphold the constitution and put the interest of the people above their own. I just read oath as oauth. I guess I've been conditioned to expect oauth as a more likely word than oath on Hacker News.
- 7952 13y ago
  Such an approach would also lead to better security. GSM used to be sent un-encrypted, but because anyone could intercept it the security was improved. Compare that to the level of security typical on DSL. A simple starting point would be to put GPS trackers on every government owned car.
- willurd 13y ago
  > Presuming for a moment that all the information collected by NSA is, in fact, public information You mean like our phone calls, text messages, emails, and encrypted communications? Yeah, I'm sure we all intended for those to be "public information". > If the general public should be tracked to such precision No concessions will be made. This is so unconstitutional (and just plain wrong) it's sickening. I'm sure you're a smart/nice/well-meaning person, but I'm sick of people sticking up for the government. All it takes is a little bit of research and thinking about what's going on objectively to see that those running the government do not have our best interest at heart.
- coldtea 13y ago
  >Presuming for a moment that all the information collected by NSA is, in fact, public information That's a huge, and wrong, presumption.
- coldtea 13y ago
  >If this treasure trove of personal connection graphs, cell phone discussions, location information, is all truly public and not subject to a judge issued targeted warrant, then, why shouldn't this public information be available to any member of the public? Because I don't want anybody to fucking know I'm having an extra-marital affair. How the fuck is that your or anybody else's business?
hga 13y ago
Some framing, usual comment section, etc. by him at the Volokh Conspiracy: http://www.volokh.com/2013/07/11/unprecedented-my-wsj-op-ed-on-the-nsa-cfpb-blanket-data-seizures/ http://www.volokh.com/2013/07/11/unprecedented-my-wsj-op-ed-...
jasonzemos 13y ago
> private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. How come Aaron Swartz gets prosecuted for violating a TOS and the government doesn't?
- flyinRyan 13y ago
  Because the government has lots and lots of guns.
ferdo 13y ago
The NSA stated, in 1975, that it's not bound or beholden the US Constitution or law. I don't expect that their opinion has changed much. I can't recall any lawless institution that all of the sudden became lawful of its own accord: > "NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency." > According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes." > http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3_10_NSA.pdf http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...
- hga 13y ago
  Ignoring whatever laws have been passed since then, not to mention the control of the purse the Congress has, your excerpts don't make your case. E.g. by saying "the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes" the NSA was implicitly also stating that Americans' communications that didn't meet those criteria were protected by the Fourth.
  - ferdo 13y ago
    > Ignoring whatever laws have been passed since then I trust the NSA to do just that. > the control of the purse the Congress has They increased the NSA's budget by $4 billion last year. You're more than welcome to trust an agency with little to no oversight. I'll keep my faith in human nature. It's served me well all these years.
    - hga 13y ago
      You're reading far too much into what I said, which was pointing out, at least based on the excerpts you quoted, that you hadn't made the case they were "not bound or beholden the US Constitution or law" back then. Which you aren't as of yet denying, since you're only replying to asides on details you didn't address that are either relevant today (enabling legislation that's been passed since then) or relevant for all this period (power of the purse, and of course what the Congress did last year is hardly relevant to what they'll do this year after all these revelations, or in 2015 after the next round of elections, etc.).
dragontamer 13y ago
This article is trash, the discussions on this issue are trash, and everyone is running around like a headless chicken. A Law Professor, writing an argument about law, without discussing the relevant cases? No discussion of Smith v Maryland? No discussion of FISA 702 or Patriot Act 215? Did he even bother to look up any relevant information with regards to this controversy? Call it unconstitutional if you want, but I want to see an _argument_. Call yourself a law professor or a lawyer, but if you write under the guide of a legal expert, I demand to see a high level discussion on the issue. Instead, I get a rant about libertarian ideals, applying the 5th Amendment to property you clearly do not own. I see vague descriptions of the 4th Amendment, with no regard to context that is going on in the debate in Washington. Any "Law Professor" that writes about this subject... but FAILS to mention Smith v. Maryland is horribly horribly ignorant on the subject. And does not deserve to be writing under the guise of a legal expert. And he has failed to do his due diligence as both a legal expert and reporter.
- Tarrosion 13y ago
  Perhaps the author feels that a short op-ed in a popular newspaper is not the place for highly technical discussions. Whether choosing to write at a surface level is optimal or not, it's a bit of a stretch to accuse a professor from a highly respected university of being "horribly horribly ignorant" on the basis of what's not in a single page article.
  - dragontamer 13y ago
    If he knows the information, but has failed to talk about it, then he has failed as a reporter. As a legal expert and reporter, it is his job to elevate the discussion. If he is not ignorant, then he was lazy, and now he has spread ignorance to his reader base.
    - cshenoy 13y ago
      I feel like the op-ed is aiming to "spread the knowledge" more than it is trying to dig deep into the legal issues surrounding NSA's activities. I recall reading polls after the Snowden leak showing how a fair amount of the US public did not fully understand what was happening. It seems like this is Barnett's initial attempt at speaking out in some official form and creating some dialogue around this issue.
throwawayga 13y ago
The part about the CFPB is the next unknown hammer to drop. Consumers assume the CFPB is on their side. The truth is far murkier. For instance, the CFPB has requested and was granted detailed financial transaction information on at least 10 million Americans. Of course, they are claiming that "personally identifiable" is "extremely limited", but like the phone meta-data issue, it is clear detailed spending habits could be associated with certain individuals. At least they promise to destroy the data after holding it for 10 years... Source: http://blogs.marketwatch.com/capitolreport/2013/07/09/cfpb-criticized-during-data-collection-hearing/ http://blogs.marketwatch.com/capitolreport/2013/07/09/cfpb-c...
ryguytilidie 13y ago
OF COURSE its unconstitutional. However, I don't see the point of even debating it. It's like when people got super excited that citizens were suing the NSA to obtain this data as if there were anything other than a 100% chance they would be denied. There are a few possible outcomes to this debate: -The NSA says, sure, its unconstitutional, but that wont stop us from doing it. -The NSA continues to deny/lie about what they are doing with the program. -The NSA appoints an oversight committee with no actual powers to make sure they "don't continue to do the same thing" -No comment, forever. Any of those options mean that the NSA keeps doing the same thing, tells us to STFU and we realize we have no recourse. I hate to say it, but it seems like this debate will have to end in violence or it won't end at all. :\
- e3pi 13y ago
  > I hate to say it, but it seems like this debate will have to end in violence or it won't end at all. :\ Were you fomenting the v word, yes or no?!
- flyinRyan 13y ago
  There is one other possible alternative: those of us who feel strongly about this issue need to get into politics. If enough of us get in (obviously we'd have to adopt one of the big two parties, and start getting support at local or state levels first) we could shut this stuff down from the inside. Of course, we'd need some protection against people defecting for the money. Maybe everyone has to make treasonous statements in front of a camera that we all carry or something, so if someone sells out we can have them jailed or executed for treason.
Tycho 13y ago
Genuine question: how many decisions are made at the legal/policy level based on something being 'unconstitutional?'
- flyinRyan 13y ago
  None I would say. The legislative makes the laws and assumes the executive won't enforce them if they're bad and/or the judicial will throw them out if they're not constitutional. Of course, plenty of things that are obviously unconstitutional don't come before the court for years if ever so they can't be struck down.
- dragontamer 13y ago
  Genuine question: how many idiots write about "unconstitutionality", without offering analysis? Its that much worse when said idiot is writing under the guide of Lawyer and Law Professor. "Unconstitutional" has a very specific legal meaning. Its a shame that Mr. Barnett didn't feel like explaining himself on this matter. I've got a thread of discussion here on my thoughts: https://news.ycombinator.com/item?id=6032777 https://news.ycombinator.com/item?id=6032777 It is clear to me at least that the program is legal and constitutional.

203 points by jalanco 13y ago

Does anyone realistically think this program will be rolled back? Presuming for a moment that all the information collected by NSA is, in fact, public information, it seems to me that the primary problem isn't collection but asymmetric access and hence power differential between the state and those governed. Why should the government have exclusive access to this information while the general public doesn't? If this treasure trove of personal connection graphs, cell phone discussions, location information, is all truly public and not subject to a judge issued targeted warrant, then, why shouldn't this public information be available to any member of the public? This new information could be a boon for Democracy and completely change how we understand and interact with Government. Why shouldn't technology impact how we organize our society? Politicians and civil servants, who have the consent of the governed, take an oath to uphold the constitution and put the interest of the people above their own. If the general public should be tracked to such precision, at the very least, why shouldn't interactions in the public affairs of our elected and appointed and contracted officials, done on our behalf, be subject to the same level of scrutiny?

hga 13y ago
As to rolling them back, there is precedent: http://en.wikipedia.org/wiki/Church_Committee http://en.wikipedia.org/wiki/Church_Committee Otherwise the wag who penned Government Builds Free Cloud-Based Backup for an Ungrateful Nation (https://news.ycombinator.com/item?id=6012941 https://news.ycombinator.com/item?id=6012941) sort of addresses your other points.
- nodata 13y ago
  s/president/precedent/;
- area51org 13y ago
  I think there's a fair chance we could actually roll this back, given enough pressure and attention. The question is how to know that the NSA/CIA is really not monitoring us. Answer: citizen groups watching the watchers. That's right: we monitor the NSA and the CIA, and if blocked, immediate court action. I'm not saying this will really happen. But I don't think it's impossible, and I think many of us would agree that it's warranted.
  - jfoutz 13y ago
    Well, they could roll it back, or they could get better at keeping secrets.
    - gtaylor 13y ago
      Until they get caught again, potentially facing an even bigger crapstorm.
    - area51org 13y ago
      Yeah, that's why the citizen oversight. We can't trust the government to police itself, obviously.
  - flyinRyan 13y ago
    We could know by shutting them down and making the concept of secret courts illegal.
pvnick 13y ago
>Does anyone realistically think this program will be rolled back? I for one plan on making a ton of noise until that happens.
- disposition2 13y ago
  We've been making noise since 2001 before the Patriot Act was passed, then in 2007 when they granted retroactive immunity to the telecoms who where assisting with the illegal wiretapping, and now again in 2013 when we received some PPT slides that confirm what we thought in 2001. I'm not trying to be a negative nancy, nor saying stop making noise, just that it's been going on for 12+ years (if not longer) and the powers that could stop it can hardly tie their shoes without an argument on how to tie them correctly. Hopefully more people will wise up to the blatant disregard for the law and demand further action.
  - gtaylor 13y ago
    Disclaimer: This is not directed at disposition in particular, it's more of a general observation. > I'm not trying to be a negative nancy, nor saying stop making noise, just that it's been going on for 12+ years (if not longer) and the powers that could stop it can hardly tie their shoes without an argument on how to tie them correctly. The length of time that something has gone on does not change the fact that it is fundamentally wrong. The only difference is that I am now, 12+ years later, more disgruntled than I was back when it started. I feel like some people use the fact that this has been ongoing as some way to say "Oh, this isn't as big a deal as you're making it out to be." No, screw you. Also, we as a population have to stop with the "it's never going to change, why bother?" mentality and get involved. It's definitely never going to change if we continue to be so apathetic as a group.
    - willurd 13y ago
      > No, screw you. This is how I feel every time I hear someone make excuses for things like this. It's less "screw you, I hate you" and more "screw you, wake the hell up".
  - 13y ago
smoorman1024 13y ago
>Why shouldn't technology impact how we organize our society? Politicians and civil servants, who have the consent of the governed, take an oath to uphold the constitution and put the interest of the people above their own. I just read oath as oauth. I guess I've been conditioned to expect oauth as a more likely word than oath on Hacker News.
7952 13y ago
Such an approach would also lead to better security. GSM used to be sent un-encrypted, but because anyone could intercept it the security was improved. Compare that to the level of security typical on DSL. A simple starting point would be to put GPS trackers on every government owned car.
willurd 13y ago
> Presuming for a moment that all the information collected by NSA is, in fact, public information You mean like our phone calls, text messages, emails, and encrypted communications? Yeah, I'm sure we all intended for those to be "public information". > If the general public should be tracked to such precision No concessions will be made. This is so unconstitutional (and just plain wrong) it's sickening. I'm sure you're a smart/nice/well-meaning person, but I'm sick of people sticking up for the government. All it takes is a little bit of research and thinking about what's going on objectively to see that those running the government do not have our best interest at heart.
coldtea 13y ago
>Presuming for a moment that all the information collected by NSA is, in fact, public information That's a huge, and wrong, presumption.
coldtea 13y ago
>If this treasure trove of personal connection graphs, cell phone discussions, location information, is all truly public and not subject to a judge issued targeted warrant, then, why shouldn't this public information be available to any member of the public? Because I don't want anybody to fucking know I'm having an extra-marital affair. How the fuck is that your or anybody else's business?

hga 13y ago

Some framing, usual comment section, etc. by him at the Volokh Conspiracy: http://www.volokh.com/2013/07/11/unprecedented-my-wsj-op-ed-on-the-nsa-cfpb-blanket-data-seizures/ http://www.volokh.com/2013/07/11/unprecedented-my-wsj-op-ed-...

jasonzemos 13y ago

> private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. How come Aaron Swartz gets prosecuted for violating a TOS and the government doesn't?

flyinRyan 13y ago
Because the government has lots and lots of guns.

ferdo 13y ago

The NSA stated, in 1975, that it's not bound or beholden the US Constitution or law. I don't expect that their opinion has changed much. I can't recall any lawless institution that all of the sudden became lawful of its own accord: > "NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency." > According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes." > http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3_10_NSA.pdf http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...

hga 13y ago
Ignoring whatever laws have been passed since then, not to mention the control of the purse the Congress has, your excerpts don't make your case. E.g. by saying "the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes" the NSA was implicitly also stating that Americans' communications that didn't meet those criteria were protected by the Fourth.
- ferdo 13y ago
  > Ignoring whatever laws have been passed since then I trust the NSA to do just that. > the control of the purse the Congress has They increased the NSA's budget by $4 billion last year. You're more than welcome to trust an agency with little to no oversight. I'll keep my faith in human nature. It's served me well all these years.
  - hga 13y ago
    You're reading far too much into what I said, which was pointing out, at least based on the excerpts you quoted, that you hadn't made the case they were "not bound or beholden the US Constitution or law" back then. Which you aren't as of yet denying, since you're only replying to asides on details you didn't address that are either relevant today (enabling legislation that's been passed since then) or relevant for all this period (power of the purse, and of course what the Congress did last year is hardly relevant to what they'll do this year after all these revelations, or in 2015 after the next round of elections, etc.).

dragontamer 13y ago

This article is trash, the discussions on this issue are trash, and everyone is running around like a headless chicken. A Law Professor, writing an argument about law, without discussing the relevant cases? No discussion of Smith v Maryland? No discussion of FISA 702 or Patriot Act 215? Did he even bother to look up any relevant information with regards to this controversy? Call it unconstitutional if you want, but I want to see an _argument_. Call yourself a law professor or a lawyer, but if you write under the guide of a legal expert, I demand to see a high level discussion on the issue. Instead, I get a rant about libertarian ideals, applying the 5th Amendment to property you clearly do not own. I see vague descriptions of the 4th Amendment, with no regard to context that is going on in the debate in Washington. Any "Law Professor" that writes about this subject... but FAILS to mention Smith v. Maryland is horribly horribly ignorant on the subject. And does not deserve to be writing under the guise of a legal expert. And he has failed to do his due diligence as both a legal expert and reporter.

Tarrosion 13y ago
Perhaps the author feels that a short op-ed in a popular newspaper is not the place for highly technical discussions. Whether choosing to write at a surface level is optimal or not, it's a bit of a stretch to accuse a professor from a highly respected university of being "horribly horribly ignorant" on the basis of what's not in a single page article.
- dragontamer 13y ago
  If he knows the information, but has failed to talk about it, then he has failed as a reporter. As a legal expert and reporter, it is his job to elevate the discussion. If he is not ignorant, then he was lazy, and now he has spread ignorance to his reader base.
  - cshenoy 13y ago
    I feel like the op-ed is aiming to "spread the knowledge" more than it is trying to dig deep into the legal issues surrounding NSA's activities. I recall reading polls after the Snowden leak showing how a fair amount of the US public did not fully understand what was happening. It seems like this is Barnett's initial attempt at speaking out in some official form and creating some dialogue around this issue.

throwawayga 13y ago

The part about the CFPB is the next unknown hammer to drop. Consumers assume the CFPB is on their side. The truth is far murkier. For instance, the CFPB has requested and was granted detailed financial transaction information on at least 10 million Americans. Of course, they are claiming that "personally identifiable" is "extremely limited", but like the phone meta-data issue, it is clear detailed spending habits could be associated with certain individuals. At least they promise to destroy the data after holding it for 10 years... Source: http://blogs.marketwatch.com/capitolreport/2013/07/09/cfpb-criticized-during-data-collection-hearing/ http://blogs.marketwatch.com/capitolreport/2013/07/09/cfpb-c...

ryguytilidie 13y ago

OF COURSE its unconstitutional. However, I don't see the point of even debating it. It's like when people got super excited that citizens were suing the NSA to obtain this data as if there were anything other than a 100% chance they would be denied. There are a few possible outcomes to this debate: -The NSA says, sure, its unconstitutional, but that wont stop us from doing it. -The NSA continues to deny/lie about what they are doing with the program. -The NSA appoints an oversight committee with no actual powers to make sure they "don't continue to do the same thing" -No comment, forever. Any of those options mean that the NSA keeps doing the same thing, tells us to STFU and we realize we have no recourse. I hate to say it, but it seems like this debate will have to end in violence or it won't end at all. :\

e3pi 13y ago
> I hate to say it, but it seems like this debate will have to end in violence or it won't end at all. :\ Were you fomenting the v word, yes or no?!
flyinRyan 13y ago
There is one other possible alternative: those of us who feel strongly about this issue need to get into politics. If enough of us get in (obviously we'd have to adopt one of the big two parties, and start getting support at local or state levels first) we could shut this stuff down from the inside. Of course, we'd need some protection against people defecting for the money. Maybe everyone has to make treasonous statements in front of a camera that we all carry or something, so if someone sells out we can have them jailed or executed for treason.

Tycho 13y ago

Genuine question: how many decisions are made at the legal/policy level based on something being 'unconstitutional?'

flyinRyan 13y ago
None I would say. The legislative makes the laws and assumes the executive won't enforce them if they're bad and/or the judicial will throw them out if they're not constitutional. Of course, plenty of things that are obviously unconstitutional don't come before the court for years if ever so they can't be struck down.
dragontamer 13y ago
Genuine question: how many idiots write about "unconstitutionality", without offering analysis? Its that much worse when said idiot is writing under the guide of Lawyer and Law Professor. "Unconstitutional" has a very specific legal meaning. Its a shame that Mr. Barnett didn't feel like explaining himself on this matter. I've got a thread of discussion here on my thoughts: https://news.ycombinator.com/item?id=6032777 https://news.ycombinator.com/item?id=6032777 It is clear to me at least that the program is legal and constitutional.