12 ms·

N.S.A. Phone Surveillance Is Lawful, Federal Judge Rules

132 points by philfreo 13y ago

aryastark 13y ago
Who cares what is legal/illegal. That's missing the point. Under the PATRIOT Act raping and torturing infants is legal[1]. When corrupt politicians make corrupt laws, the only thing that should matter is what is morally correct. Or to quote John Oliver of the Daily Show, > I think you're misunderstanding the perceived problem here, Mr. President. No one is saying you broke any laws. We're just saying it's a little bit weird that you didn't have to. [1] probably.
- InclinedPlane 13y ago
  I understand that you're angry and frustrated but don't make arguments like this. Do you think you're convincing anybody with these preposterous statements? Do you think someone who is unconvinced that the PATRIOT Act is bad would read what you are saying and be astonished at the idea that it makes raping and torturing infants legal, then be spurred to change their mind and take action to oppose it? There's no need to make up bullshit about the PATRIOT Act, to exaggerate its effects, or to engage in histrionics. Those things weaken your case in the eyes of the people who you most want to convince. Don't exaggerate, don't use hyperbole, don't lie, don't be immature, make the strongest case possible and back it with facts.
  - aryastark 13y ago
    Thanks for the downvote. Didn't realize I was on reddit. > Don't exaggerate, don't use hyperbole, don't lie, don't be immature, I did none of those things. I used a device called humor. Perhaps you have none. I'm sorry. I did quote the Daily Show, after all. Thanks to you, InclinedPlane, I will never make another PATRIOT Act joke. Thank you for informing me on how to use my Freedom Speech.
    - alan_cx 13y ago
      HN does NOT do humour. Well, unless its embedded in code, then its like fecking hilarious.
  - summerdown2 13y ago
    Astonishingly, I think you are incorrect. Apparently there are serious figures who think the torturing of infants is in fact legal: https://en.wikipedia.org/wiki/John_Yoo#Regarding_torture_of_detainees https://en.wikipedia.org/wiki/John_Yoo#Regarding_torture_of_... > "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress—that is what you wrote in the August 2002 memo", to which Yoo replied "I think it depends on why the President thinks he needs to do that."
adamnemecek 13y ago
> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." Kafka would be proud.
- CrunchyJams 13y ago
  This same justification was used for obtaining personal financial information from bank accounts (see US v. Miller, 1976). My problem with this line of logic is that it can be applied to anything not owned directly by the person under surveillance. For example, let's say you rent an apartment. Can the government force the landlord to install mics and cameras without telling you? It's not your property, so do all of your fourth amendment protections disappear?
  - pavpanchekha 13y ago
    Yes, they can, were it not for other laws explicitly barring them from doing so.
- joering2 13y ago
  Indeed. Its okay to search your wallet since its not your "paper", like Constitution says. Its okay to search "your" house, since bank owns it, or landlord. Its okay to track your car with no warrant because well its using public roads. Too "bad" Monsato did not win a claim to patent our DNA; in that case you could be stripped down to naked and shoved with a huge anal probe and feds won't have a problem finding judge who would rule no Fourth Amendment was violated. God Lord -- what is happening to this country???
tedivm 13y ago
> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." The thing I don't get is why the NSA is considered a third party here. It's not the phone companies keeping the records, it's the NSA, so I honestly do not understand this ruling.
- jaekwon 13y ago
  Sounds like the judge is saying that what third parties can have, the NSA can have.
  - chris_mahan 13y ago
    Sounds like the judge is putting the cloud-storage business to death.
    - jaekwon 13y ago
      Sure. But it was a strange thing to begin with. Why would anybody trust a cloud provider with sensitive information? Another way to look at the NSA -- they are hardening our security.
      - chris_mahan 13y ago
        Agreed. (I didn't say it was a bad thing.)
      - chris_mahan 13y ago
        And Snowden is hardening the NSA!
    - res0nat0r 13y ago
      Companies who've moved to the cloud have already weighed their risk vs. reward of handing their data to a 3rd party, vs. the cost of standing up their own datacenter and servers etc. This NSA business won't change any of that thinking for most IMO. They've already ruled by moving to the cloud the cost savings is greater than the risk of a 3rd party accessing their data.
joelrunyon 13y ago
Lawful ≠ Constitutional. The patriot act made all these "legal" - but aren't we waiting for a supreme court decision that states that the entire collection is "unconstitutional"?
- noarchy 13y ago
  And when that court decides that it is all perfectly constitutional? That is the outcome that I expect, at this point. I think it is better to rely on ourselves to protect our privacy, where possible.
- jrochkind1 13y ago
  What are you talking about? The constitution is the "highest law of the land". Have you read the opinion, or even the nytimes article posted here? > Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies. This judge indeed decided it was constitutional, that is in fact what "lawful" means in this case. A different federal judge in a different district decided it was not. Eventually the Supreme Court will probably decide, especially becaues of the disagreement between two different federal districts, the Supreme Court can make the final determination. (This was in the nytimes article too). But federal district court judges can and do make decisions of constitutional law all the time, it's not only the supreme court that can do that, but the supreme court can overrule the lower courts. Saying "Lawful ≠ Constitutional" just reveals you don't understand how the US legal system works. And also didn't bother to read the article before commenting on it. You are incorrect.
  - joelrunyon 13y ago
    Look over the checks & balances in this case[1]. He was ruling that the collection was legal under the patriot act. However, the supreme court has the ability to apply "judicial review" to overturn a law / act / action. A quick perusal of wikipedia should help. http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_balances http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_...
    - 13y ago
pvnick 13y ago
What does a broken record sound like? Read the first line of the ruling: http://i.imgur.com/y8LZQUM.png http://i.imgur.com/y8LZQUM.png
- sanderjd 13y ago
  Ugh no kidding. 9/11 happened on my 16th birthday. I can't believe I'm almost 30 and it is still used to justify so much of our policy.
  - rtpg 13y ago
    I don't get how referencing a singular event often is actually an issue. the Great Depression showed us how important it is to have an insurance on personal bank accounts, to disincentive bank runs. While one might counter that there have been other economic crises and bank runs, there have also been many other terrorist attacks aimed at US interests and allies. We still cite the great depression all the time because it was kind of a big deal. I don't want to comment on how its being used in this policy decision but acting like 9/11 isn't somehow a big deal is strange.
    - smokeyj 13y ago
      > I don't get how referencing a singular event often is actually an issue. Because it's a reactionary and not derived in principle? How exactly do you counter "I know what's best for you based on a single event"?
      - deleted 13y ago
        [deleted]
    - mikeash 13y ago
      The difference is that the depression was a big deal on its own, while 9/11 is a big deal in a circular way: it's important largely because we consider it to be important. The actual damage done by the attack itself was not all that significant in the grand scheme of things. Yes, it was a massive tragedy, but neither the lives lost nor the property destroyed are noticeable on a national scale. Most of the damage by far was the reaction to the attack, not the attack itself. It was the national equivalent of an allergic reaction. Imagine if people were in charge of your immune system and they decided that the immune system must react strongly to bee stings. In defending their policy on bee stings, they bring up the last time you got stung by a bee, when it put you in the hospital. What makes it a problem is that they put you in the hospital themselves, not the bee sting by itself. The bee sting would have hurt, but wouldn't have required medical attention if it weren't for the allergic reaction to it.
thenerdfiles 13y ago
> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." Okay, so then when I download an MP3 it's not theft because I didn't actually deprive the artist of their source files.
- thenerdfiles 13y ago
  They're totally exploiting the fact that the legal system is so huge, no one organization can keep track of all of these conceptual inconsistencies. Where's http://groklaw.net http://groklaw.net when you need it?
  - chris_mahan 13y ago
    Sadly, groklaw.net apparently went down exactly because it was unable to insure the privacy of its communications once it discovered the extant of the NSA data collection. So if we are unable to communicate privately, is there any privacy left?
    - codex 13y ago
      No, Groklaw is a freak show which used a flimsy excuse to shut down for reasons unknown.
  - halviti 13y ago
    I disagree. This is so far over the line into obvious bullshit that anyone with a 6th grade education can smell the government's Schadenfreude. If anything they are exploiting the fact that the public has become docile and likely won't fight back, even when they know without a doubt they are being lied to by the people they pay to protect them.
- jaekwon 13y ago
  Yeah haha! Let's at least make the system consistent. To be fair, then I'd also have to let the NSA keep records from "third parties", since I'm a Kopimist of sorts. Actually, I'm OK with the NSA having my data. I'm not OK with them compelling third parties to HAND OVER data (e.g. PRISM) but I'm fine with them holding information that they gathered through other means as long as those means were acceptable. Tapping fiber optic cables is a gray line here. All good as long as they allow me to evade them by taking privacy into my own hands. I want to be able to use, export, and import any encryption technology that I see fit. Let's play ball.
noarchy 13y ago
Those of you who want a political answer to this surveillance problem should pay attention when these things happen. This is your system, in a nutshell. The legislators, judges, law enforcement officials, etc, are all in on this. Don't wait for the president or prime minister to change things. That won't happen. You'll have to take your security into your own hands to the greatest extent possible. This will including learning to adapt once your government inevitably outlaws your favourite means of protecting your security and privacy.
- sanderjd 13y ago
  This actually looks more like the system working to me. There are now two important judges who disagree in their interpretation of the issue. The system failed when this was kept secret such that it could not be ruled on by the legal system (and I don't believe a "secret court" is a part of a "legal system"), but now that it is being ruled on, it's expected and proper that judges may disagree.
  - arca_vorago 13y ago
    Please keep in mind the very actions being described themselves have implications of undermining the entire judicial system, up to and including the SCOTUS. It's easy to say, "Well, yeah it was shitty they hid it from us, but now the courts will all take care of it as they do, and I'm sure SCOTUS won't rule wrongly, no no, they would never do that." but if you ignore the fact that there are allegations that judges are largely appointed based on the ability for the appointee to control via various methods including blackmail and bribery. I'll let you follow the implications from there, but I'm afraid this situation is much more serious than you seem to realize.
- chris_mahan 13y ago
  I've reached the conclusion that in order to receive constitutional protection of "my papers", they need to be "on paper". So, I essentially don't put anything on the internet, or even on my computer, unless I'm comfortable with it being on the internet, permanently (meaning until my great-grandchildren retire, in 120 years). for reference, the Fourth Amendment to the Constitution of the United States: "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." I would like to think that "papers" in the text would also refer to electronic documents, but alas that seems to not be the case. This is one of those cases where the saying "In Theory, Practice and Theory are the same, but in practice they're not." seems to fit.
bushido 13y ago
Links[0] to the article without a login; if you aren't subscribing to NY times, and/or don't intend to. [0] https://www.google.com/search?q=N.S.A.Phone+surveillance+is+lawful%2C+Federal+Judge+Rules&oq=N.S.A.Phone+surveillance+is+lawful%2C+Federal+Judge+Rules&aqs=chrome..69i57.24352j0j4&sourceid=chrome&espv=210&es_sm=93&ie=UTF-8 https://www.google.com/search?q=N.S.A.Phone+surveillance+is+... [1] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&url=http%3A%2F%2Fwww.nytimes.com%2F2013%2F12%2F28%2Fus%2Fnsa-phone-surveillance-is-lawful-federal-judge-rules.html&ei=Ir69UqfCD4bL2wXJ8IHABA&usg=AFQjCNFJCwy7dnqcC0tRh8qyYf_fnrN7HQ&sig2=fakTN9RZ3rKauGyA_ym1pw&bvm=bv.58187178,d.b2I https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&u...
apayan 13y ago
"Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely," Pauley wrote. "The bulk telephony metadata collection program represents the government's counter-punch." Following this line of reasoning, as technology advances, there is no limit to what data can be gathered in to stop "terrorism." This ruling highlights the fact that there can be no political solution to ending the U.S. surveillance state as long as those in power believe this or at least find it profitable. The remedy has to be technological. Citizens need to be encrypting all their communications to make mass surveillance prohibitively expensive.
- dcc1 13y ago
  .... Then the federal government increases taxes on its subjects to spend on decryption of its subjects communications...
- amalag 13y ago
  Even federal judges need terrorists to justify their decisions?
yogsohedthren 13y ago
Do we, as the creators of this data, not retain IP rights over it? Are we unable to use the laws written by the other big cartel against the promiscuous use of it?
uptown 13y ago
If that's how the law works - guess it's time to abandon all cloud-based services. There's seemingly zero protection for anything hosted by a 3rd party.
- thenerdfiles 13y ago
  Even further: it seems like we have to abandon all proprietary formats. What is a record is not something you technically own. Your idea or concept is codified in the record. What's that saying?: Files are a myth.
tokenadult 13y ago
As there are more trial court decisions on the NSA programs, it appears that there will be a split in results of those decisions among various trial courts. Those decisions can be appealed to the federal circuit appellate courts, where there may again be a split among the decisions. A circuit split[1] on an important issue of federal law, especially constitutional law, is one of the most reliable ways to prompt consideration of an issue by the United States Supreme Court. That court will have the last word[2] on this issue. [1] https://en.wikipedia.org/wiki/Circuit_split https://en.wikipedia.org/wiki/Circuit_split [2] "We are not final because we are infallible, but we are infallible only because we are final." A saying by Justice H. Jackson. https://en.wikipedia.org/wiki/Robert_H._Jackson https://en.wikipedia.org/wiki/Robert_H._Jackson
- jacobheller 13y ago
  For what it's worth, even if there were no circuit split (i.e., even if the courts of appeals in both cases agree), the Court does often take cases that are of great national importance. This would certainly qualify.
fragsworth 13y ago
This system is totally broken. The federal government receives funding to do things that the general public despises, in secret, and then, if caught, the courts decide the legality of it ex post facto. The U.S. federal government makes far too many decisions that are no longer accountable to the public. This is an extremely dangerous situation to be in, and if we don't have some serious reform done then I believe we are in for a very shitty future.
- delinka 13y ago
  s/receives/takes from the general public the/ It's not like we have the option to starve this beast of its financial support.
jacobheller 13y ago
For the lazy, here's the full text of the opinion on Casetext: https://casetext.com/case/aclu-v-clapper/ https://casetext.com/case/aclu-v-clapper/
deleted 13y ago
[deleted]
atmosx 13y ago
I am curious about what % of Americans consider this a real issue vs those who just don't care. Of course HN is a tech community, understands the repercussions and it's very sensitive on the matter. I am asking because we're possibly facing a huge (maybe the biggest) gap between voters and government here.
err4nt 13y ago
Reminds me of this quote from our favorite space saga: http://www.youtube.com/watch?v=nz20lu2AM2k http://www.youtube.com/watch?v=nz20lu2AM2k
redwood 13y ago
Unreal. for some perspective, from: https://postalinspectors.uspis.gov/contactUs/faq.aspx https://postalinspectors.uspis.gov/contactUs/faq.aspx "4. Can Postal Inspectors open mail if they feel it may contain something illegal? First-Class letters and parcels are protected against search and seizure under the Fourth Amendment to the Constitution, and, as such, cannot be opened without a search warrant. If there is probable cause to believe the contents of a First-Class letter or parcel violate federal law, Postal Inspectors can obtain a search warrant to open the mailpiece. Other classes of mail do not contain private correspondence, and therefore may be opened without a warrant." So the phone companies are a third party. The postal service is not.
- talmand 13y ago
  Is a warrant required to read the addresses on the outside of the envelope on First Class mail?
- thenerdfiles 13y ago
  The difference here is: "Can the Postal System provision X-ray systems to scan all mail and hold a database of its scans up to 18 months to prevent unlawful activity?"
  - berberous 13y ago
    FYI, they photograph the outside of every envelope (to/from addresses).
    - thenerdfiles 13y ago
      Yes, but X-ray? Sure someone might take a second look at an envelope photograph and come to the correct conclusion that something illegal is inside — but it's already been delivered. It's just getting back to this point of "unreasonable" and what we're quantifying over (effects, our homes, etc.) U.S. government is clearly taking either of two paths: wash out all meaning of "unreasonable", effectively making the extent to which they search infinite in scope, and wash out all meaning of "effects" such that the scope of what they can search through becomes infinite.
irishmoss 13y ago
I can't imagine how the Justice Sotomayor could have been any more clear in this issue: I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. [citations omitted] Resolution of these difficult questions in this case is unnecessary, however, because the Government's physical intrusion on Jones' Jeep supplies a narrower basis for decision. http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf When Ginsburg, Breyer, and Kagan feel surveillance is so obviously unconstitutional as to provide an even narrower basis than actual trespassing, and Sotomayor writes a separate opinion for the sole purpose of conveying she'd be the 4th vote, I find it hard to imagine how any judge could uphold this surveillance in good faith.
nilved 13y ago
Why does anybody care what the judge thinks? Use Tor and crypto and tell them to fuck themselves.
coldcode 13y ago
Hopefully SCOTUS will say something else, but I'm not holding my breath. Eventually the content of the phone calls will also be found to be not private as we are using a 3rd party to communicate, so in the end all electronic communication will thus be available for recording and interpretation legally by the government. What kind of world that will be is unknown, but it won't be one anyone wants to live in.
ballard 13y ago
Sure, Your Honor, and what about JSOC assassinating American citizens. Why even bother with warrants or legal process the rest of the time? Throw it all away. Just let the executive branch do whatever the fuck they like (contrary to the intention of separations of powers) with their own mercenary army that's beyond the law. The only problem then is why should anyone respect the law if said executive branch doesn't?
Kinnard 13y ago
Done.

132 points by philfreo 13y ago

Who cares what is legal/illegal. That's missing the point. Under the PATRIOT Act raping and torturing infants is legal[1]. When corrupt politicians make corrupt laws, the only thing that should matter is what is morally correct. Or to quote John Oliver of the Daily Show, > I think you're misunderstanding the perceived problem here, Mr. President. No one is saying you broke any laws. We're just saying it's a little bit weird that you didn't have to. [1] probably.

InclinedPlane 13y ago
I understand that you're angry and frustrated but don't make arguments like this. Do you think you're convincing anybody with these preposterous statements? Do you think someone who is unconvinced that the PATRIOT Act is bad would read what you are saying and be astonished at the idea that it makes raping and torturing infants legal, then be spurred to change their mind and take action to oppose it? There's no need to make up bullshit about the PATRIOT Act, to exaggerate its effects, or to engage in histrionics. Those things weaken your case in the eyes of the people who you most want to convince. Don't exaggerate, don't use hyperbole, don't lie, don't be immature, make the strongest case possible and back it with facts.
- aryastark 13y ago
  Thanks for the downvote. Didn't realize I was on reddit. > Don't exaggerate, don't use hyperbole, don't lie, don't be immature, I did none of those things. I used a device called humor. Perhaps you have none. I'm sorry. I did quote the Daily Show, after all. Thanks to you, InclinedPlane, I will never make another PATRIOT Act joke. Thank you for informing me on how to use my Freedom Speech.
  - alan_cx 13y ago
    HN does NOT do humour. Well, unless its embedded in code, then its like fecking hilarious.
- summerdown2 13y ago
  Astonishingly, I think you are incorrect. Apparently there are serious figures who think the torturing of infants is in fact legal: https://en.wikipedia.org/wiki/John_Yoo#Regarding_torture_of_detainees https://en.wikipedia.org/wiki/John_Yoo#Regarding_torture_of_... > "If the President deems that he's got to torture somebody, including by crushing the testicles of the person's child, there is no law that can stop him?", to which Yoo replied "No treaty." Cassel followed up with "Also no law by Congress—that is what you wrote in the August 2002 memo", to which Yoo replied "I think it depends on why the President thinks he needs to do that."

adamnemecek 13y ago

> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." Kafka would be proud.

CrunchyJams 13y ago
This same justification was used for obtaining personal financial information from bank accounts (see US v. Miller, 1976). My problem with this line of logic is that it can be applied to anything not owned directly by the person under surveillance. For example, let's say you rent an apartment. Can the government force the landlord to install mics and cameras without telling you? It's not your property, so do all of your fourth amendment protections disappear?
- pavpanchekha 13y ago
  Yes, they can, were it not for other laws explicitly barring them from doing so.
joering2 13y ago
Indeed. Its okay to search your wallet since its not your "paper", like Constitution says. Its okay to search "your" house, since bank owns it, or landlord. Its okay to track your car with no warrant because well its using public roads. Too "bad" Monsato did not win a claim to patent our DNA; in that case you could be stripped down to naked and shoved with a huge anal probe and feds won't have a problem finding judge who would rule no Fourth Amendment was violated. God Lord -- what is happening to this country???

tedivm 13y ago

> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." The thing I don't get is why the NSA is considered a third party here. It's not the phone companies keeping the records, it's the NSA, so I honestly do not understand this ruling.

jaekwon 13y ago
Sounds like the judge is saying that what third parties can have, the NSA can have.
- chris_mahan 13y ago
  Sounds like the judge is putting the cloud-storage business to death.
  - jaekwon 13y ago
    Sure. But it was a strange thing to begin with. Why would anybody trust a cloud provider with sensitive information? Another way to look at the NSA -- they are hardening our security.
    - chris_mahan 13y ago
      Agreed. (I didn't say it was a bad thing.)
    - chris_mahan 13y ago
      And Snowden is hardening the NSA!
  - res0nat0r 13y ago
    Companies who've moved to the cloud have already weighed their risk vs. reward of handing their data to a 3rd party, vs. the cost of standing up their own datacenter and servers etc. This NSA business won't change any of that thinking for most IMO. They've already ruled by moving to the cloud the cost savings is greater than the risk of a 3rd party accessing their data.

joelrunyon 13y ago

Lawful ≠ Constitutional. The patriot act made all these "legal" - but aren't we waiting for a supreme court decision that states that the entire collection is "unconstitutional"?

noarchy 13y ago
And when that court decides that it is all perfectly constitutional? That is the outcome that I expect, at this point. I think it is better to rely on ourselves to protect our privacy, where possible.
jrochkind1 13y ago
What are you talking about? The constitution is the "highest law of the land". Have you read the opinion, or even the nytimes article posted here? > Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies. This judge indeed decided it was constitutional, that is in fact what "lawful" means in this case. A different federal judge in a different district decided it was not. Eventually the Supreme Court will probably decide, especially becaues of the disagreement between two different federal districts, the Supreme Court can make the final determination. (This was in the nytimes article too). But federal district court judges can and do make decisions of constitutional law all the time, it's not only the supreme court that can do that, but the supreme court can overrule the lower courts. Saying "Lawful ≠ Constitutional" just reveals you don't understand how the US legal system works. And also didn't bother to read the article before commenting on it. You are incorrect.
- joelrunyon 13y ago
  Look over the checks & balances in this case[1]. He was ruling that the collection was legal under the patriot act. However, the supreme court has the ability to apply "judicial review" to overturn a law / act / action. A quick perusal of wikipedia should help. http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_balances http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_...
  - 13y ago

pvnick 13y ago

What does a broken record sound like? Read the first line of the ruling: http://i.imgur.com/y8LZQUM.png http://i.imgur.com/y8LZQUM.png

sanderjd 13y ago
Ugh no kidding. 9/11 happened on my 16th birthday. I can't believe I'm almost 30 and it is still used to justify so much of our policy.
- rtpg 13y ago
  I don't get how referencing a singular event often is actually an issue. the Great Depression showed us how important it is to have an insurance on personal bank accounts, to disincentive bank runs. While one might counter that there have been other economic crises and bank runs, there have also been many other terrorist attacks aimed at US interests and allies. We still cite the great depression all the time because it was kind of a big deal. I don't want to comment on how its being used in this policy decision but acting like 9/11 isn't somehow a big deal is strange.
  - smokeyj 13y ago
    > I don't get how referencing a singular event often is actually an issue. Because it's a reactionary and not derived in principle? How exactly do you counter "I know what's best for you based on a single event"?
    - deleted 13y ago
      [deleted]
  - mikeash 13y ago
    The difference is that the depression was a big deal on its own, while 9/11 is a big deal in a circular way: it's important largely because we consider it to be important. The actual damage done by the attack itself was not all that significant in the grand scheme of things. Yes, it was a massive tragedy, but neither the lives lost nor the property destroyed are noticeable on a national scale. Most of the damage by far was the reaction to the attack, not the attack itself. It was the national equivalent of an allergic reaction. Imagine if people were in charge of your immune system and they decided that the immune system must react strongly to bee stings. In defending their policy on bee stings, they bring up the last time you got stung by a bee, when it put you in the hospital. What makes it a problem is that they put you in the hospital themselves, not the bee sting by itself. The bee sting would have hurt, but wouldn't have required medical attention if it weren't for the allergic reaction to it.

thenerdfiles 13y ago

> "Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies." Okay, so then when I download an MP3 it's not theft because I didn't actually deprive the artist of their source files.

thenerdfiles 13y ago
They're totally exploiting the fact that the legal system is so huge, no one organization can keep track of all of these conceptual inconsistencies. Where's http://groklaw.net http://groklaw.net when you need it?
- chris_mahan 13y ago
  Sadly, groklaw.net apparently went down exactly because it was unable to insure the privacy of its communications once it discovered the extant of the NSA data collection. So if we are unable to communicate privately, is there any privacy left?
  - codex 13y ago
    No, Groklaw is a freak show which used a flimsy excuse to shut down for reasons unknown.
- halviti 13y ago
  I disagree. This is so far over the line into obvious bullshit that anyone with a 6th grade education can smell the government's Schadenfreude. If anything they are exploiting the fact that the public has become docile and likely won't fight back, even when they know without a doubt they are being lied to by the people they pay to protect them.
jaekwon 13y ago
Yeah haha! Let's at least make the system consistent. To be fair, then I'd also have to let the NSA keep records from "third parties", since I'm a Kopimist of sorts. Actually, I'm OK with the NSA having my data. I'm not OK with them compelling third parties to HAND OVER data (e.g. PRISM) but I'm fine with them holding information that they gathered through other means as long as those means were acceptable. Tapping fiber optic cables is a gray line here. All good as long as they allow me to evade them by taking privacy into my own hands. I want to be able to use, export, and import any encryption technology that I see fit. Let's play ball.

noarchy 13y ago

Those of you who want a political answer to this surveillance problem should pay attention when these things happen. This is your system, in a nutshell. The legislators, judges, law enforcement officials, etc, are all in on this. Don't wait for the president or prime minister to change things. That won't happen. You'll have to take your security into your own hands to the greatest extent possible. This will including learning to adapt once your government inevitably outlaws your favourite means of protecting your security and privacy.

sanderjd 13y ago
This actually looks more like the system working to me. There are now two important judges who disagree in their interpretation of the issue. The system failed when this was kept secret such that it could not be ruled on by the legal system (and I don't believe a "secret court" is a part of a "legal system"), but now that it is being ruled on, it's expected and proper that judges may disagree.
- arca_vorago 13y ago
  Please keep in mind the very actions being described themselves have implications of undermining the entire judicial system, up to and including the SCOTUS. It's easy to say, "Well, yeah it was shitty they hid it from us, but now the courts will all take care of it as they do, and I'm sure SCOTUS won't rule wrongly, no no, they would never do that." but if you ignore the fact that there are allegations that judges are largely appointed based on the ability for the appointee to control via various methods including blackmail and bribery. I'll let you follow the implications from there, but I'm afraid this situation is much more serious than you seem to realize.
chris_mahan 13y ago
I've reached the conclusion that in order to receive constitutional protection of "my papers", they need to be "on paper". So, I essentially don't put anything on the internet, or even on my computer, unless I'm comfortable with it being on the internet, permanently (meaning until my great-grandchildren retire, in 120 years). for reference, the Fourth Amendment to the Constitution of the United States: "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." I would like to think that "papers" in the text would also refer to electronic documents, but alas that seems to not be the case. This is one of those cases where the saying "In Theory, Practice and Theory are the same, but in practice they're not." seems to fit.

bushido 13y ago

Links[0] to the article without a login; if you aren't subscribing to NY times, and/or don't intend to. [0] https://www.google.com/search?q=N.S.A.Phone+surveillance+is+lawful%2C+Federal+Judge+Rules&oq=N.S.A.Phone+surveillance+is+lawful%2C+Federal+Judge+Rules&aqs=chrome..69i57.24352j0j4&sourceid=chrome&espv=210&es_sm=93&ie=UTF-8 https://www.google.com/search?q=N.S.A.Phone+surveillance+is+... [1] https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&url=http%3A%2F%2Fwww.nytimes.com%2F2013%2F12%2F28%2Fus%2Fnsa-phone-surveillance-is-lawful-federal-judge-rules.html&ei=Ir69UqfCD4bL2wXJ8IHABA&usg=AFQjCNFJCwy7dnqcC0tRh8qyYf_fnrN7HQ&sig2=fakTN9RZ3rKauGyA_ym1pw&bvm=bv.58187178,d.b2I https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&u...

apayan 13y ago

"Technology allowed al Qaeda to operate decentralized and plot international terrorist attacks remotely," Pauley wrote. "The bulk telephony metadata collection program represents the government's counter-punch." Following this line of reasoning, as technology advances, there is no limit to what data can be gathered in to stop "terrorism." This ruling highlights the fact that there can be no political solution to ending the U.S. surveillance state as long as those in power believe this or at least find it profitable. The remedy has to be technological. Citizens need to be encrypting all their communications to make mass surveillance prohibitively expensive.

dcc1 13y ago
.... Then the federal government increases taxes on its subjects to spend on decryption of its subjects communications...
amalag 13y ago
Even federal judges need terrorists to justify their decisions?

yogsohedthren 13y ago

Do we, as the creators of this data, not retain IP rights over it? Are we unable to use the laws written by the other big cartel against the promiscuous use of it?

uptown 13y ago

If that's how the law works - guess it's time to abandon all cloud-based services. There's seemingly zero protection for anything hosted by a 3rd party.

thenerdfiles 13y ago
Even further: it seems like we have to abandon all proprietary formats. What is a record is not something you technically own. Your idea or concept is codified in the record. What's that saying?: Files are a myth.

tokenadult 13y ago

As there are more trial court decisions on the NSA programs, it appears that there will be a split in results of those decisions among various trial courts. Those decisions can be appealed to the federal circuit appellate courts, where there may again be a split among the decisions. A circuit split[1] on an important issue of federal law, especially constitutional law, is one of the most reliable ways to prompt consideration of an issue by the United States Supreme Court. That court will have the last word[2] on this issue. [1] https://en.wikipedia.org/wiki/Circuit_split https://en.wikipedia.org/wiki/Circuit_split [2] "We are not final because we are infallible, but we are infallible only because we are final." A saying by Justice H. Jackson. https://en.wikipedia.org/wiki/Robert_H._Jackson https://en.wikipedia.org/wiki/Robert_H._Jackson

jacobheller 13y ago
For what it's worth, even if there were no circuit split (i.e., even if the courts of appeals in both cases agree), the Court does often take cases that are of great national importance. This would certainly qualify.

fragsworth 13y ago

This system is totally broken. The federal government receives funding to do things that the general public despises, in secret, and then, if caught, the courts decide the legality of it ex post facto. The U.S. federal government makes far too many decisions that are no longer accountable to the public. This is an extremely dangerous situation to be in, and if we don't have some serious reform done then I believe we are in for a very shitty future.

delinka 13y ago
s/receives/takes from the general public the/ It's not like we have the option to starve this beast of its financial support.

jacobheller 13y ago

For the lazy, here's the full text of the opinion on Casetext: https://casetext.com/case/aclu-v-clapper/ https://casetext.com/case/aclu-v-clapper/

deleted 13y ago

[deleted]

atmosx 13y ago

I am curious about what % of Americans consider this a real issue vs those who just don't care. Of course HN is a tech community, understands the repercussions and it's very sensitive on the matter. I am asking because we're possibly facing a huge (maybe the biggest) gap between voters and government here.

err4nt 13y ago

Reminds me of this quote from our favorite space saga: http://www.youtube.com/watch?v=nz20lu2AM2k http://www.youtube.com/watch?v=nz20lu2AM2k

redwood 13y ago

Unreal. for some perspective, from: https://postalinspectors.uspis.gov/contactUs/faq.aspx https://postalinspectors.uspis.gov/contactUs/faq.aspx "4. Can Postal Inspectors open mail if they feel it may contain something illegal? First-Class letters and parcels are protected against search and seizure under the Fourth Amendment to the Constitution, and, as such, cannot be opened without a search warrant. If there is probable cause to believe the contents of a First-Class letter or parcel violate federal law, Postal Inspectors can obtain a search warrant to open the mailpiece. Other classes of mail do not contain private correspondence, and therefore may be opened without a warrant." So the phone companies are a third party. The postal service is not.

talmand 13y ago
Is a warrant required to read the addresses on the outside of the envelope on First Class mail?
thenerdfiles 13y ago
The difference here is: "Can the Postal System provision X-ray systems to scan all mail and hold a database of its scans up to 18 months to prevent unlawful activity?"
- berberous 13y ago
  FYI, they photograph the outside of every envelope (to/from addresses).
  - thenerdfiles 13y ago
    Yes, but X-ray? Sure someone might take a second look at an envelope photograph and come to the correct conclusion that something illegal is inside — but it's already been delivered. It's just getting back to this point of "unreasonable" and what we're quantifying over (effects, our homes, etc.) U.S. government is clearly taking either of two paths: wash out all meaning of "unreasonable", effectively making the extent to which they search infinite in scope, and wash out all meaning of "effects" such that the scope of what they can search through becomes infinite.

irishmoss 13y ago

I can't imagine how the Justice Sotomayor could have been any more clear in this issue: I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. [citations omitted] Resolution of these difficult questions in this case is unnecessary, however, because the Government's physical intrusion on Jones' Jeep supplies a narrower basis for decision. http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf When Ginsburg, Breyer, and Kagan feel surveillance is so obviously unconstitutional as to provide an even narrower basis than actual trespassing, and Sotomayor writes a separate opinion for the sole purpose of conveying she'd be the 4th vote, I find it hard to imagine how any judge could uphold this surveillance in good faith.

nilved 13y ago

Why does anybody care what the judge thinks? Use Tor and crypto and tell them to fuck themselves.

coldcode 13y ago

Hopefully SCOTUS will say something else, but I'm not holding my breath. Eventually the content of the phone calls will also be found to be not private as we are using a 3rd party to communicate, so in the end all electronic communication will thus be available for recording and interpretation legally by the government. What kind of world that will be is unknown, but it won't be one anyone wants to live in.

ballard 13y ago

Sure, Your Honor, and what about JSOC assassinating American citizens. Why even bother with warrants or legal process the rest of the time? Throw it all away. Just let the executive branch do whatever the fuck they like (contrary to the intention of separations of powers) with their own mercenary army that's beyond the law. The only problem then is why should anyone respect the law if said executive branch doesn't?

Kinnard 13y ago

Done.