9 ms·

Senators have to go to the press to try to stop the government from doing what clearly breaks the law -- the Constitution, no less -- using up billions of taxpa

by spodek 13y ago

Senators have to go to the press to try to stop the government from doing what clearly breaks the law -- the Constitution, no less -- using up billions of taxpayer funds and undermines American business for no clear benefit. Conventional wisdom says the Cold War was between the doctrines of Capitalism and Communism and that the doctrine of Capitalism won. It doesn't look like that view was right. The doctrine of the KGB and Stasi is winning over both of them.

twoodfin 13y ago
Can you justify your claim that a bulk collection of phone records "clearly" violates the Constitution? I don't think the jurisprudence is so obviously on your side there.
- naterator 13y ago
  http://www.newyorker.com/online/blogs/comment/2013/06/nsa-scandal-god-save-us-from-the-lawyers.html http://www.newyorker.com/online/blogs/comment/2013/06/nsa-sc...
- danenania 13y ago
  I think common fucking sense is pretty well on his side.
  - 001sky 13y ago
    The idea that 'data' vs 'metadata' loophole has been scaled beyond belief to undermine the plain english understanding of 'reasonable' is worthy of new jurisprudence.
    - rayiner 13y ago
      "Data" versus "metadata" doesn't go to the definition of "reasonable." It goes to the definition of "their" in "their persons, houses, papers, and effects..." The basic distinction is your data versus data that's about you. If I own a store, and make a note that 001sky came in to buy a box of cookies at 2:00pm on January 23, 2005, that's my paper. It's not your paper. I can claim 4th amendment protection if the FBI breaks into my store and takes that note, but you can't. That's the legally relevant distinction between data and metadata.
      - 001sky 13y ago
        Thes boundaries are blurred quite easliy with sufficiently advanced technology. That is the point. I can FLIR your house from a public location. Or isps and email providers could store every message (full data) just like the metadata and now 'own' a free copy. Arguably gmail has walked this line in their argument that scanning the metadata to route the message and scanning the content for meaning are equivalent interrogations of bits. But there are strong arguments about piercing of protected speech or inpinging on the veil privacy in the home, using technology to blunt force your way in are limited by jurisprudence already. That is why the surveilance by artifacts of speech and surveilance of actual speech is not such a simple issue.
        rayiner 13y ago
        There are situations in which technology changes things and the law has adapted (e.g. using an infrared camera to look into a house from a public location is a 4th amendment violation), but this is not one of those situations. At least when it comes to call metadata, technology really has nothing to do with it. Whether AT&T records it on magnetic tape or quantum bits, it's still their records, generated by their equipment, kept for their purposes, that you never have access to. These characteristics aren't an artifact of the technology, they're reflective of the fundamental nature of the information in question: it's AT&T's information about you, not your information.
        001sky 13y ago
        At least when it comes to call metadata, technology really has nothing to do with it I'm not sure this is logically possible. The metadata retention by the telco's is an artifact of their business process (minimize fraudulent billing liability)[1]. A similar process did not exist for mail until the government mandated and paid for it. Now, every piece of mail is photgraphed ("to collect the 'metadata' ")and the images are recorded. That notwithstanding, the entire notion of such meta-data is strictly an artifact of technology. There is no analogue in pure verbal speech, in other words. [1] There is no need for them to retain it or to otherwise "posess" it in an-other-than-temporary-like-snapchat-way.
  - twoodfin 13y ago
    That's not an argument. rayiner has this exactly right: it is not a slam dunk violation of the Constitution as currently understood by the folks who make it their living to understand such things, and spodek was wrong to characterize it as such. Outrage doesn't make you right; at this point it's just making hn boring.
    - hindsightbias 13y ago
      > boring boorish. You'd think all these experts would have bothered to read up just a little bit on SCOTUS cases like Smith v Maryland, etc, but I guess it's just easier to grunt Freedom.
    - will_brown 13y ago
      >That's not an argument. rayiner has this exactly right I actually disagree...common sense is in fact an argument...in fact it is a 4th Amendment legal argument. When a Court hears whether a search and seizure was reasonable common sense arguments often prevail. For example, you have reasonable expectations of privacy if you were in an old school public phone booth, but not on your cell phone in public...you have a reasonable expectation of privacy in your trash, that is until it hits the curb then the government can seize it (without a warrant) and use it against you in trial. As interesting as Rayiner's points are, even if he is citing case law/legal precedent it does not make him right. At the end of the day it only matters what 9 people think, and guess what more often than not those 9 people are at odds with one another, and often to the tune of 5-4 - nevertheless what the majority/plurality of those 9 opine becomes the law of the land, still that does not make any of them right either. One of the more interesting 4th Amendment issues is that it only applies to the Government, so the Government can not simply have a private citizen seize evidence without a warrant and use it as evidence, but they can use unlawfully obtained evidence so long as they did not direct the individual who originally obtained it...think how the Government used the photos hacked by Anonymous in the Stubenville Rape case. Ironically I think this could be one of the strongest arguments is that telecoms are actually working on behalf of the Government to obtain evidence they could otherwise not get without a warrant - in fact I would go so far as to say the Government is paying telecom companies to do this on their behalf.
- samolang 13y ago
  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  - a3n 13y ago
    We should write that down somewhere.
  - rayiner 13y ago
    Okay, so tell me how call records generates by ATT that are never even in my possession are nonetheless "my" papers or effects? The text of the amendment does not clearly support your position. Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties.
    - kabdib 13y ago
      By extension, then, wiretaps are just fine, by anybody. All that data, entering and leaving your house, is not in your house, so it's fair game. So is opening mail (if it's in the post office it's not under your control, right?) Your car? It's on the street, so what if we attached GPS devices. Those microphones and cameras in public places are there for your protection. We'll never abuse that, trust us. Oh never never never. ("Hey, this guy voted Replubricatic last election, stick him on the list, too. Hey, he gave money to my opponent!")
      - rayiner 13y ago
        Postal mail is historically treated as a special case because it's a government agency. Cars on the street are still your property, even when you're not in it, just as your house is still your property even when you're on vacation. Wiretaps and documents hosted on the "cloud" are somewhere in-between. The first time the Supreme Court considered the Constitutionality of warrantless wire taps, it found that they were not protected by the 4th amendment. In the 1960's they overturned that precedent, but using reasoning that really only makes sense in an analog context where your voice directly modulates signals on a wire, and there is no intermediate storage. Call records are further removed still. They're not a recording of your voice. They are generated by the telco, for the telco's own purposes. They are never in your possession, and you don't even know their contents. It's a huge stretch to say that they are nonetheless "your" papers. Finally, microphones and cameras in public are clearly Constitutional. Whether they can be abused is irrelevant. The 4th amendment is not a prohibition on anything that can be abused. It's a prohibition designed to protect peoples' physical persons and their property rights from government searches.
onli 13y ago
No. Capitalism clearly won. But Capitalism is not Freedom, not democracy and is not the rule of the law. Capitalism is a way to conduct business by letting people posess the means of production, and the capital to produce as well. It was not only rhetoric that in the fight between USA and UDSSR, there was a fight between freedom and authority. But mainly, it was a fight between different ways to regulate the means of production. Capitalism won, but that does not mean that freedom, democracy and the rule of the law will survive that victory. China shows that you can have a capitalst economy in a (not a real one, but wanting to be) communist country.
- ttflee 13y ago
  > China shows that you can have a capitalst economy in a (not a real one, but wanting to be) communist country. Wanting to be? I'm afraid that China would never want trying again in the current reign. China just has not yet figured out which model of heaven could be used to replace the communist one. It is really a tough job to propose for a egalitarian heaven in an age of quickly increasing rich-poor gap.
  - onli 13y ago
    Hm, ok. While I know that the chinese government still tries to define its system as a communist one, it is quite possible that they are simply searching by now. Given you use of the word heaven you probably know that better than me (if my limited chinese is correct). But there are other examples. Take Stalin, under his reign there was a limited (but successful) effort to produce food using a free economy, which he shot down. Which was tragic given the food was needed. But that leads to far. I mainly meant that the existing systems claiming to be communist aren't, and some were able to use the tools of capitalism without becoming a western country, e.g. without becoming an indirect democracy - thus showing that capitalism is an economic model, not more.
- javert 13y ago
  Nope. Capitalism == free markets == non-coersion. We have a highly mixed economy now, not capitalism. If you consider large government bureaus (public, or "private" via regulation, like, say, Verizon) to define "capitalism" just because there are large amounts of money involved ("capital"), you are defining the term by non-essentials. There were also large amounts of money in the USSR. Capitalism lost because of European intellectual influences in America; the existing defense of the ideas of the founding fathers was insufficient to stem the tide.
ender7 13y ago
It has always been this way. “In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.” -- Abraham Lincoln

by spodek 13y ago

twoodfin 13y ago

Can you justify your claim that a bulk collection of phone records "clearly" violates the Constitution? I don't think the jurisprudence is so obviously on your side there.

naterator 13y ago
http://www.newyorker.com/online/blogs/comment/2013/06/nsa-scandal-god-save-us-from-the-lawyers.html http://www.newyorker.com/online/blogs/comment/2013/06/nsa-sc...
danenania 13y ago
I think common fucking sense is pretty well on his side.
- 001sky 13y ago
  The idea that 'data' vs 'metadata' loophole has been scaled beyond belief to undermine the plain english understanding of 'reasonable' is worthy of new jurisprudence.
  - rayiner 13y ago
    "Data" versus "metadata" doesn't go to the definition of "reasonable." It goes to the definition of "their" in "their persons, houses, papers, and effects..." The basic distinction is your data versus data that's about you. If I own a store, and make a note that 001sky came in to buy a box of cookies at 2:00pm on January 23, 2005, that's my paper. It's not your paper. I can claim 4th amendment protection if the FBI breaks into my store and takes that note, but you can't. That's the legally relevant distinction between data and metadata.
    - 001sky 13y ago
      Thes boundaries are blurred quite easliy with sufficiently advanced technology. That is the point. I can FLIR your house from a public location. Or isps and email providers could store every message (full data) just like the metadata and now 'own' a free copy. Arguably gmail has walked this line in their argument that scanning the metadata to route the message and scanning the content for meaning are equivalent interrogations of bits. But there are strong arguments about piercing of protected speech or inpinging on the veil privacy in the home, using technology to blunt force your way in are limited by jurisprudence already. That is why the surveilance by artifacts of speech and surveilance of actual speech is not such a simple issue.
      - rayiner 13y ago
        There are situations in which technology changes things and the law has adapted (e.g. using an infrared camera to look into a house from a public location is a 4th amendment violation), but this is not one of those situations. At least when it comes to call metadata, technology really has nothing to do with it. Whether AT&T records it on magnetic tape or quantum bits, it's still their records, generated by their equipment, kept for their purposes, that you never have access to. These characteristics aren't an artifact of the technology, they're reflective of the fundamental nature of the information in question: it's AT&T's information about you, not your information.
        001sky 13y ago
        At least when it comes to call metadata, technology really has nothing to do with it I'm not sure this is logically possible. The metadata retention by the telco's is an artifact of their business process (minimize fraudulent billing liability)[1]. A similar process did not exist for mail until the government mandated and paid for it. Now, every piece of mail is photgraphed ("to collect the 'metadata' ")and the images are recorded. That notwithstanding, the entire notion of such meta-data is strictly an artifact of technology. There is no analogue in pure verbal speech, in other words. [1] There is no need for them to retain it or to otherwise "posess" it in an-other-than-temporary-like-snapchat-way.
- twoodfin 13y ago
  That's not an argument. rayiner has this exactly right: it is not a slam dunk violation of the Constitution as currently understood by the folks who make it their living to understand such things, and spodek was wrong to characterize it as such. Outrage doesn't make you right; at this point it's just making hn boring.
  - hindsightbias 13y ago
    > boring boorish. You'd think all these experts would have bothered to read up just a little bit on SCOTUS cases like Smith v Maryland, etc, but I guess it's just easier to grunt Freedom.
  - will_brown 13y ago
    >That's not an argument. rayiner has this exactly right I actually disagree...common sense is in fact an argument...in fact it is a 4th Amendment legal argument. When a Court hears whether a search and seizure was reasonable common sense arguments often prevail. For example, you have reasonable expectations of privacy if you were in an old school public phone booth, but not on your cell phone in public...you have a reasonable expectation of privacy in your trash, that is until it hits the curb then the government can seize it (without a warrant) and use it against you in trial. As interesting as Rayiner's points are, even if he is citing case law/legal precedent it does not make him right. At the end of the day it only matters what 9 people think, and guess what more often than not those 9 people are at odds with one another, and often to the tune of 5-4 - nevertheless what the majority/plurality of those 9 opine becomes the law of the land, still that does not make any of them right either. One of the more interesting 4th Amendment issues is that it only applies to the Government, so the Government can not simply have a private citizen seize evidence without a warrant and use it as evidence, but they can use unlawfully obtained evidence so long as they did not direct the individual who originally obtained it...think how the Government used the photos hacked by Anonymous in the Stubenville Rape case. Ironically I think this could be one of the strongest arguments is that telecoms are actually working on behalf of the Government to obtain evidence they could otherwise not get without a warrant - in fact I would go so far as to say the Government is paying telecom companies to do this on their behalf.
samolang 13y ago
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
- a3n 13y ago
  We should write that down somewhere.
- rayiner 13y ago
  Okay, so tell me how call records generates by ATT that are never even in my possession are nonetheless "my" papers or effects? The text of the amendment does not clearly support your position. Indeed, the focus is clearly on personal things (house, person), not things possessed by third parties.
  - kabdib 13y ago
    By extension, then, wiretaps are just fine, by anybody. All that data, entering and leaving your house, is not in your house, so it's fair game. So is opening mail (if it's in the post office it's not under your control, right?) Your car? It's on the street, so what if we attached GPS devices. Those microphones and cameras in public places are there for your protection. We'll never abuse that, trust us. Oh never never never. ("Hey, this guy voted Replubricatic last election, stick him on the list, too. Hey, he gave money to my opponent!")
    - rayiner 13y ago
      Postal mail is historically treated as a special case because it's a government agency. Cars on the street are still your property, even when you're not in it, just as your house is still your property even when you're on vacation. Wiretaps and documents hosted on the "cloud" are somewhere in-between. The first time the Supreme Court considered the Constitutionality of warrantless wire taps, it found that they were not protected by the 4th amendment. In the 1960's they overturned that precedent, but using reasoning that really only makes sense in an analog context where your voice directly modulates signals on a wire, and there is no intermediate storage. Call records are further removed still. They're not a recording of your voice. They are generated by the telco, for the telco's own purposes. They are never in your possession, and you don't even know their contents. It's a huge stretch to say that they are nonetheless "your" papers. Finally, microphones and cameras in public are clearly Constitutional. Whether they can be abused is irrelevant. The 4th amendment is not a prohibition on anything that can be abused. It's a prohibition designed to protect peoples' physical persons and their property rights from government searches.

onli 13y ago

No. Capitalism clearly won. But Capitalism is not Freedom, not democracy and is not the rule of the law. Capitalism is a way to conduct business by letting people posess the means of production, and the capital to produce as well. It was not only rhetoric that in the fight between USA and UDSSR, there was a fight between freedom and authority. But mainly, it was a fight between different ways to regulate the means of production. Capitalism won, but that does not mean that freedom, democracy and the rule of the law will survive that victory. China shows that you can have a capitalst economy in a (not a real one, but wanting to be) communist country.

ttflee 13y ago
> China shows that you can have a capitalst economy in a (not a real one, but wanting to be) communist country. Wanting to be? I'm afraid that China would never want trying again in the current reign. China just has not yet figured out which model of heaven could be used to replace the communist one. It is really a tough job to propose for a egalitarian heaven in an age of quickly increasing rich-poor gap.
- onli 13y ago
  Hm, ok. While I know that the chinese government still tries to define its system as a communist one, it is quite possible that they are simply searching by now. Given you use of the word heaven you probably know that better than me (if my limited chinese is correct). But there are other examples. Take Stalin, under his reign there was a limited (but successful) effort to produce food using a free economy, which he shot down. Which was tragic given the food was needed. But that leads to far. I mainly meant that the existing systems claiming to be communist aren't, and some were able to use the tools of capitalism without becoming a western country, e.g. without becoming an indirect democracy - thus showing that capitalism is an economic model, not more.
javert 13y ago
Nope. Capitalism == free markets == non-coersion. We have a highly mixed economy now, not capitalism. If you consider large government bureaus (public, or "private" via regulation, like, say, Verizon) to define "capitalism" just because there are large amounts of money involved ("capital"), you are defining the term by non-essentials. There were also large amounts of money in the USSR. Capitalism lost because of European intellectual influences in America; the existing defense of the ideas of the founding fathers was insufficient to stem the tide.

ender7 13y ago

It has always been this way. “In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions.” -- Abraham Lincoln