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Hmm, I think that confuses the point. The NSA programs are either constitutional or not. Wyden was essentially asking, Is this program constitutional? Does i

Hmm, I think that confuses the point. The NSA programs are either constitutional or not. Wyden was essentially asking, Is this program constitutional? Does it collect data on US persons without a warrant? Clapper swore an oath to the Constitution, so he should always be able to answer that question truthfully. "Yes, this program is constitutional. No, it doesn't collect data on US persons." The fact that he couldn't say that is the issue. Secrecy is not some magic sauce that makes a program constitutional. Secrecy doesn't free a program from legal scrutiny.

dragonwriter 13y ago
> The NSA programs are either constitutional or not. The idea that constitutionality, or any other question of legal interpretation, is a matter of objective fact which has a clear, crisp, true or false answer is, while a comforting illusion, not at all even remotely true.
- blueprint 13y ago
  Whether or not warrants were obtained for their activities, is, however, an objectively verifiable boolean fact.
  - mpyne 13y ago
    Sure, but that doesn't help you either, as there are many other precedents besides NSA programs for situations where the government can compel a search without a warrant. This is permitted by that pesky little word "unreasonable" in the Fourth Amendment.
mpyne 13y ago
As dragonwriter points out, simply "collecting data" is not necessarily unconstitutional, so your two equivalent questions are not congruent.
- trunnell 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. -Fourth Amendment, US Constitution It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment. Attempts to justify it that we've heard about so far, like the assertion that it's not a seizure until the data is "looked at" is clearly a post-hoc rationalization which, put nicely, strains credibility.
  - mpyne 13y ago
    > It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment. "Seizure" would imply the government taking custody of something away from the owner, which is not what's going on during a bitcopy. Search is closer, but you missed noticing one of the most important words: " ...against unreasonable searches and seizures". In other words if the search can be construed "reasonable" for any reason (which is very much a "judgment call") then it is automatically Constitutional (even if it's not automatically legal, which can be a separate consideration). Additionally the NSA is not seizing all privately transmitted data (which is in any event physically impossible). Either they have to be selective about what metadata is retained long-term, or they have to buffer everything but only for a short term in which case they are acting very much like a "common carrier" with an exceptionally bad problem of bufferbloat. But either way, there's another problem: The data being "searched" isn't your data, it's someone else's data (at a different ISP or host) that happens to be bit-for-bit identical to the data you transmitted, which means any 4th Amendment claim would be theirs to make, not yours. So I would be careful about how strictly you try to read into the Fourth Amendment, as only the "judicial activist" interpretations of it would possibly exclude electronic surveillance of the type now done by NSA.
    - trunnell 13y ago
      So if it's perfectly constitutional and legal, why did Wyden feel the need to ask the question? And why did Clapper respond the way he did?

dragonwriter 13y ago

> The NSA programs are either constitutional or not. The idea that constitutionality, or any other question of legal interpretation, is a matter of objective fact which has a clear, crisp, true or false answer is, while a comforting illusion, not at all even remotely true.

blueprint 13y ago
Whether or not warrants were obtained for their activities, is, however, an objectively verifiable boolean fact.
- mpyne 13y ago
  Sure, but that doesn't help you either, as there are many other precedents besides NSA programs for situations where the government can compel a search without a warrant. This is permitted by that pesky little word "unreasonable" in the Fourth Amendment.

mpyne 13y ago

As dragonwriter points out, simply "collecting data" is not necessarily unconstitutional, so your two equivalent questions are not congruent.

trunnell 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. -Fourth Amendment, US Constitution It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment. Attempts to justify it that we've heard about so far, like the assertion that it's not a seizure until the data is "looked at" is clearly a post-hoc rationalization which, put nicely, strains credibility.
- mpyne 13y ago
  > It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment. "Seizure" would imply the government taking custody of something away from the owner, which is not what's going on during a bitcopy. Search is closer, but you missed noticing one of the most important words: " ...against unreasonable searches and seizures". In other words if the search can be construed "reasonable" for any reason (which is very much a "judgment call") then it is automatically Constitutional (even if it's not automatically legal, which can be a separate consideration). Additionally the NSA is not seizing all privately transmitted data (which is in any event physically impossible). Either they have to be selective about what metadata is retained long-term, or they have to buffer everything but only for a short term in which case they are acting very much like a "common carrier" with an exceptionally bad problem of bufferbloat. But either way, there's another problem: The data being "searched" isn't your data, it's someone else's data (at a different ISP or host) that happens to be bit-for-bit identical to the data you transmitted, which means any 4th Amendment claim would be theirs to make, not yours. So I would be careful about how strictly you try to read into the Fourth Amendment, as only the "judicial activist" interpretations of it would possibly exclude electronic surveillance of the type now done by NSA.
  - trunnell 13y ago
    So if it's perfectly constitutional and legal, why did Wyden feel the need to ask the question? And why did Clapper respond the way he did?