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Maybe you have a point. Maybe it is possible to install enough internal and external controls for these surveillance programs to bring them back from the outer

Maybe you have a point. Maybe it is possible to install enough internal and external controls for these surveillance programs to bring them back from the outer edges of ethical and moral propriety. Maybe. There's still, however, the problem of the Fourth Amendment. To my High-School-Civics understanding of the US Government, these programs are patently unconstitutional. If these programs are indeed essential to our security, if they are to become a permanent fixture of our civil society, then let the Constitution be amended to allow them. Otherwise, no amount of oversight by any (or all) of the branches of the government will be sufficient to legitimize any such programs.

s_q_b 13y ago
There's two issues at play here that are legally distinct: 1. Surveillance of United States Person (USPER) communication. 2. Surveillance of non-USPER communications. With regard to (2), the Fourth Amendment does not apply to foreign nationals. That's not very reassuring for those outside the United States, but it is a well established principle of Constitutional law. With regard to (1), the FISA court has carved out an exception to the Fourth Amendment, relying upon Skillman and its progeny. Now, that's a very shaky justification, and probably wouldn't hold up before SCOTUS. So, at present they are within the bounds of the Fourth Amendment, under the FISA court's interpretation of the law. However, that foundation is not very solid. I agree that we need a data-mining amendment to the Constitution if we're going to continue with these behaviors.
- charonn0 13y ago
  With regard to (1), the FISA court has carved out an exception to the Fourth Amendment Power is not given to the courts to make new law. The legal contortions required to twist the intent and letter of the Fourth Amendment so that it agrees with NSA, without making new law would be obscene. relying upon Skillman and its progeny Google wasn't helpful in locating a case/decision referred to as "Skillman". Can you elaborate?
  - s_q_b 13y ago
    "Power is not given to the courts to make new law. The legal contortions required to twist the intent and letter of the Fourth Amendment so that it agrees with NSA, without making new law would be obscene." Unfortunately that's exactly what happened. When the government went to the FISA court and asked for approval to conduct broad monitoring, the FISA court ruled that such monitoring, so long as it was limited to metadata and used for certain purposes, was exempt from the Fourth Amendment under the "special needs" doctrine. The case they relied upon was Skinner v. Railway Labor Executives Association, not Skillman as previously stated, which involved drug testing of Federal railway workers. There the court ruled that, given the overriding interest of protecting public safety, limited encroachments upon personal freedoms were not violative of the Fourth Amendment's prohibition on "unreasonable" searches. Basically, the FISA court is writing its own Fourth Amendment jurisprudence in secret, which can't be effectively challenged by surveillance targets as they lack standing in the courts to sue. Here's a nice summary from the NYT: http://http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html http://http://www.nytimes.com/2013/07/07/us/in-secret-court-...

s_q_b 13y ago

There's two issues at play here that are legally distinct: 1. Surveillance of United States Person (USPER) communication. 2. Surveillance of non-USPER communications. With regard to (2), the Fourth Amendment does not apply to foreign nationals. That's not very reassuring for those outside the United States, but it is a well established principle of Constitutional law. With regard to (1), the FISA court has carved out an exception to the Fourth Amendment, relying upon Skillman and its progeny. Now, that's a very shaky justification, and probably wouldn't hold up before SCOTUS. So, at present they are within the bounds of the Fourth Amendment, under the FISA court's interpretation of the law. However, that foundation is not very solid. I agree that we need a data-mining amendment to the Constitution if we're going to continue with these behaviors.

charonn0 13y ago
With regard to (1), the FISA court has carved out an exception to the Fourth Amendment Power is not given to the courts to make new law. The legal contortions required to twist the intent and letter of the Fourth Amendment so that it agrees with NSA, without making new law would be obscene. relying upon Skillman and its progeny Google wasn't helpful in locating a case/decision referred to as "Skillman". Can you elaborate?
- s_q_b 13y ago
  "Power is not given to the courts to make new law. The legal contortions required to twist the intent and letter of the Fourth Amendment so that it agrees with NSA, without making new law would be obscene." Unfortunately that's exactly what happened. When the government went to the FISA court and asked for approval to conduct broad monitoring, the FISA court ruled that such monitoring, so long as it was limited to metadata and used for certain purposes, was exempt from the Fourth Amendment under the "special needs" doctrine. The case they relied upon was Skinner v. Railway Labor Executives Association, not Skillman as previously stated, which involved drug testing of Federal railway workers. There the court ruled that, given the overriding interest of protecting public safety, limited encroachments upon personal freedoms were not violative of the Fourth Amendment's prohibition on "unreasonable" searches. Basically, the FISA court is writing its own Fourth Amendment jurisprudence in secret, which can't be effectively challenged by surveillance targets as they lack standing in the courts to sue. Here's a nice summary from the NYT: http://http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html http://http://www.nytimes.com/2013/07/07/us/in-secret-court-...