5 ms·

Why would the same not apply to the Internet cables the NSA directly taps all over the World?

by dan_bk 12y ago

moskie 12y ago
Present such a case to the Supreme Court and let's find out. :-)
njharman 12y ago
Two reasons 1) Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government). NSA does (claim) to attempt to identify communications of US citizens it intercepts "overseas" and doesn't look at them without cause. 2) NSA breaks the law. Routinely it would appear.
- wooter 12y ago
  #1 is quite simply not true. Almost all US citizens I've spoken to feel strongly that we should respect others rights as we want ours to be respected. http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?ar... Just because its a reason they give, doesn't make it valid - but I guess thats what your #2 was addressing =)
  - declan 12y ago
    No, the previous statement accurately captured the U.S. government's position: "Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government)" Note I'm not making a normative statement here; rather I'm agreeing with the previous statement that this is FedGov's claim about the extent to which the BoR applies to non-US citizens abroad.
    - hga 12y ago
      It's a fairly common interpretation in many areas of law. E.g. while it hasn't reached the Supremes, a bunch of states that have shall issue concealed carry regimes have been forced by the courts to extend these to permanent resident aliens (AKA Green Card holders), who in general are pretty much treated as citizens except they can't vote and of course can be deported.
  - njharman 12y ago
    There is a differences(sometimes vast) between what is "true" and what is "right". As much as it pains me, the US Government does not consult me on matters of ethics. What it does do is still true. Regardless of whether you, I, or anyone else believe it to be wrong. btw "(according to US Government)" should have made it clear that it was a reported fact and not a value judgement by the author, me.
jonstewart 12y ago
Simple: the NSA isn't a law enforcement agency. It's not presenting evidence in court.
- wooter 12y ago
  Hm... not so sure why this fact allows them to trample the Constitution or the Bill of Rights.
  - adventured 12y ago
    It's not about allow, it's about stop. Most politicians in DC have no interest in stopping what the NSA is doing, so it isn't going to get stopped.
- malandrew 12y ago
  A bit off topic, but your comment did lead me to think that there may be a alternative way to curb NSA civil liberties abuses: treat it like an island. Right now, one of the biggest problems with the NSA for civil liberties is that it routinely cooperates with other domestic law enforcement agencies such as the FBI and local law enforcement. With this is mind, we may also want to consider pushing for laws that isolate the NSA from domestic law enforcement by making any communication between the NSA and domestic law enforcement a crime without oversight from the public. A policy like this would not be without precedence, since we use a similar mechanism, the "chinese wall", in the financial world to separate departments of financial institutions that have a conflict of interest. The beauty of a "chinese wall" even though its not 100% effective is that there is absolutely no ambiguity in the mind of the individual when they themselves are doing something illegal/unethical. The citizenry of this country should seriously consider erecting such a large wall between the NSA/CIA and domestic law enforcement that one cannot talk to the other in any form without mediation (at work or outside of work) without it being a felony. A policy like this would go a long way to preventing abuses like parallel construction since it makes an activity at the human level a felony. Policies that aim to police organizational behavior are never as effective as policies that aim to police the activity of rank and file employees, since the enforcement of the former suffers from diffusion of responsibility. Specifically saying "Activity X is illegal and you'll be held responsible regardless of whether or not your superior(s) commanded you to do something" is a great way of curtailing institutional problems. Show me a corrupt institution and I'll show you that it is an institution where none of the crimes are policed at the level of the individual at the bottom. Isolating the NSA is as important for freedom and liberty in the world as passing laws that police its organizational behavior. That being said, we should still push for curbing all the civil liberties abuses currently practiced and putting rules in place preventing future abuses.
rayiner 12y ago
It's generally not useful to quote flowery language like this, because it's not legally operative. It might justify a particular application of the law, but it isn't the law. It is what lawyers call "dicta." NSA wiretaps differ in two key ways: 1) At least in theory, they are intended to capture foreign communications. People not on U.S. soil who are not U.S. citizens enjoy no protections under our Constitution. 2) This case is based on interpreting the "search incident to arrest" exception to the 4th amendment's warrant requirement. The essence of the exception is that while a warrantless search of someone's person is potentially the most egregious of fourth amendment violations ("person" being specifically enumerated in the text of the 4th amendment), it is nonetheless reasonable in the context of a search incident to arrest,[1] where it might be necessary in order to secure the arrestee, who might have a gun or throw away evidence. An undersea cable is totally different. It is not a search of anybody's "person" but a search of something containing signals that people are transmitting out into the world. There are four specific things enumerated in the 4th amendment: someone's house, person, papers, and effects. It is clear how searching a phone in someone's pocket is a search both of their person and their effects. But signals transmitted out into the world does not fit neatly into any of those four categories. For example if those signals were transmitted via radio versus fiber optic cable, would it be a "search" to listen in on them? Now, the language of the case is relevant in that it suggests the Court may be open to a more expansive reading of the 4th amendment when it comes to digital data. There is no way the conservatives on the court would favor extraterritorial application of the Constitution with regards to undersea wiretaps, but it could bode well for challenges to domestic surveillance. [1] Incidentally, as the opinion notes, the touchstone of the 4th amendment is "reasonableness." This fuzzy word is used explicitly in the Constitution to allow judges to engage in line drawing and balancing the interests of law enforcement with privacy rights.
- ajtulloch 12y ago
  For those interested, the distinction is between the "obiter dicta" (http://en.wikipedia.org/wiki/Obiter_dictum http://en.wikipedia.org/wiki/Obiter_dictum) and the "ratio decidendi" (http://en.wikipedia.org/wiki/Ratio_decidendi http://en.wikipedia.org/wiki/Ratio_decidendi).
- dan_bk 12y ago
davidp 12y ago
For the same reason that French laws don't apply to German activities outside of France.
poibfueuhrhdjd 12y ago
It does, but the Supreme Court can't just issue an advisory opinion on the matter without a case or controversy properly before it.
thucydides 12y ago
I practice law elsewhere, but if I were a lawyer for the NSA, I would be scared after reading this opinion. Some of its reasoning about cell phones is directly applicable to the NSA's reported invasions of Americans' cell phones, indefinite collection of all Americans' call logs, and other matters. Admittedly, the Court tends to defer more to the executive branch in national security contexts than in criminal ones like this, but this opinion is ominous for some of the NSA's surveillance programs. In some places, the opinion's discussion of the inherent intrusiveness of cell phone searches reads very much like Judge Leon's rejection of the NSA's phone metadata collection program from December 2013 (http://online.wsj.com/public/resources/documents/JudgeLeonNSAopinion12162013.pdf http://online.wsj.com/public/resources/documents/JudgeLeonNS...). And it's ominous for the NSA not just because the reasoning is directly applicable to some NSA programs, it's also that all 9 Justices signed on to an opinion that is more than assertive; it is scathing and sarcastic. E.g., Justice Roberts mocks the government for calling a cell phone search 'materially indistinguishable' from a search of a wallet, purse, or address book. That is "like saying a ride on horseback is materially indistinguishable from a flight to the moon" (p. 17). This line alone would make an NSA lawyer blanch: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime... Privacy comes at a cost" (p. 25). NSA lawyers should be seriously concerned that in the criminal context, the Court unanimously announced a broad rule that the government almost always needs a warrant to search even an arrestee's cell phone - and then blithely dismissed the government's arguments about the after-effects of such a rule, saying, "Oh well, privacy comes at a cost."
- danesparza 12y ago
  "if I were a lawyer for the NSA" ... well, I think you're mistaken already. I'm not sure the NSA operates the way you think it does (or the way many people hope it does). Considering that FISA courts (http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...) seem to operate outside the jurisdiction of our normal legal system, and considering the NSA is considered part of the US military with no Congressional oversight allowed (http://en.wikipedia.org/wiki/Nsa#Legal_accountability http://en.wikipedia.org/wiki/Nsa#Legal_accountability) I'm not sure this ruling with have any bearing on the NSA.
baddox 12y ago
Those are illegal as well.
yew 12y ago
Look at the footnote on page 18 of the opinion for a smidgen of context - it doesn't exactly explicitly mention wiretapping, but "the collection or inspection of aggregated digital information . . . under other circumstances" looks close enough. Reproduced here: Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.
wil421 12y ago
Simple answer: you don't have a resonsable expectation of privacy when you send something along the wire. This begs the question is info on the wire the same as sending a letter like generations before us did? A cellphone is just like a briefcase 30 years ago. It has all my letters (email), work papers (files) and other personal info like an address book.

Why would the same not apply to the Internet cables the NSA directly taps all over the World?

by dan_bk 12y ago

Why would the same not apply to the Internet cables the NSA directly taps all over the World?

moskie 12y ago

Present such a case to the Supreme Court and let's find out. :-)

njharman 12y ago

Two reasons 1) Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government). NSA does (claim) to attempt to identify communications of US citizens it intercepts "overseas" and doesn't look at them without cause. 2) NSA breaks the law. Routinely it would appear.

wooter 12y ago
#1 is quite simply not true. Almost all US citizens I've spoken to feel strongly that we should respect others rights as we want ours to be respected. http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1302&context=facpub http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?ar... Just because its a reason they give, doesn't make it valid - but I guess thats what your #2 was addressing =)
- declan 12y ago
  No, the previous statement accurately captured the U.S. government's position: "Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government)" Note I'm not making a normative statement here; rather I'm agreeing with the previous statement that this is FedGov's claim about the extent to which the BoR applies to non-US citizens abroad.
  - hga 12y ago
    It's a fairly common interpretation in many areas of law. E.g. while it hasn't reached the Supremes, a bunch of states that have shall issue concealed carry regimes have been forced by the courts to extend these to permanent resident aliens (AKA Green Card holders), who in general are pretty much treated as citizens except they can't vote and of course can be deported.
- njharman 12y ago
  There is a differences(sometimes vast) between what is "true" and what is "right". As much as it pains me, the US Government does not consult me on matters of ethics. What it does do is still true. Regardless of whether you, I, or anyone else believe it to be wrong. btw "(according to US Government)" should have made it clear that it was a reported fact and not a value judgement by the author, me.

jonstewart 12y ago

Simple: the NSA isn't a law enforcement agency. It's not presenting evidence in court.

wooter 12y ago
Hm... not so sure why this fact allows them to trample the Constitution or the Bill of Rights.
- adventured 12y ago
  It's not about allow, it's about stop. Most politicians in DC have no interest in stopping what the NSA is doing, so it isn't going to get stopped.
malandrew 12y ago
A bit off topic, but your comment did lead me to think that there may be a alternative way to curb NSA civil liberties abuses: treat it like an island. Right now, one of the biggest problems with the NSA for civil liberties is that it routinely cooperates with other domestic law enforcement agencies such as the FBI and local law enforcement. With this is mind, we may also want to consider pushing for laws that isolate the NSA from domestic law enforcement by making any communication between the NSA and domestic law enforcement a crime without oversight from the public. A policy like this would not be without precedence, since we use a similar mechanism, the "chinese wall", in the financial world to separate departments of financial institutions that have a conflict of interest. The beauty of a "chinese wall" even though its not 100% effective is that there is absolutely no ambiguity in the mind of the individual when they themselves are doing something illegal/unethical. The citizenry of this country should seriously consider erecting such a large wall between the NSA/CIA and domestic law enforcement that one cannot talk to the other in any form without mediation (at work or outside of work) without it being a felony. A policy like this would go a long way to preventing abuses like parallel construction since it makes an activity at the human level a felony. Policies that aim to police organizational behavior are never as effective as policies that aim to police the activity of rank and file employees, since the enforcement of the former suffers from diffusion of responsibility. Specifically saying "Activity X is illegal and you'll be held responsible regardless of whether or not your superior(s) commanded you to do something" is a great way of curtailing institutional problems. Show me a corrupt institution and I'll show you that it is an institution where none of the crimes are policed at the level of the individual at the bottom. Isolating the NSA is as important for freedom and liberty in the world as passing laws that police its organizational behavior. That being said, we should still push for curbing all the civil liberties abuses currently practiced and putting rules in place preventing future abuses.

rayiner 12y ago

It's generally not useful to quote flowery language like this, because it's not legally operative. It might justify a particular application of the law, but it isn't the law. It is what lawyers call "dicta." NSA wiretaps differ in two key ways: 1) At least in theory, they are intended to capture foreign communications. People not on U.S. soil who are not U.S. citizens enjoy no protections under our Constitution. 2) This case is based on interpreting the "search incident to arrest" exception to the 4th amendment's warrant requirement. The essence of the exception is that while a warrantless search of someone's person is potentially the most egregious of fourth amendment violations ("person" being specifically enumerated in the text of the 4th amendment), it is nonetheless reasonable in the context of a search incident to arrest,[1] where it might be necessary in order to secure the arrestee, who might have a gun or throw away evidence. An undersea cable is totally different. It is not a search of anybody's "person" but a search of something containing signals that people are transmitting out into the world. There are four specific things enumerated in the 4th amendment: someone's house, person, papers, and effects. It is clear how searching a phone in someone's pocket is a search both of their person and their effects. But signals transmitted out into the world does not fit neatly into any of those four categories. For example if those signals were transmitted via radio versus fiber optic cable, would it be a "search" to listen in on them? Now, the language of the case is relevant in that it suggests the Court may be open to a more expansive reading of the 4th amendment when it comes to digital data. There is no way the conservatives on the court would favor extraterritorial application of the Constitution with regards to undersea wiretaps, but it could bode well for challenges to domestic surveillance. [1] Incidentally, as the opinion notes, the touchstone of the 4th amendment is "reasonableness." This fuzzy word is used explicitly in the Constitution to allow judges to engage in line drawing and balancing the interests of law enforcement with privacy rights.

ajtulloch 12y ago
For those interested, the distinction is between the "obiter dicta" (http://en.wikipedia.org/wiki/Obiter_dictum http://en.wikipedia.org/wiki/Obiter_dictum) and the "ratio decidendi" (http://en.wikipedia.org/wiki/Ratio_decidendi http://en.wikipedia.org/wiki/Ratio_decidendi).
dan_bk 12y ago

davidp 12y ago

For the same reason that French laws don't apply to German activities outside of France.

poibfueuhrhdjd 12y ago

It does, but the Supreme Court can't just issue an advisory opinion on the matter without a case or controversy properly before it.

thucydides 12y ago

I practice law elsewhere, but if I were a lawyer for the NSA, I would be scared after reading this opinion. Some of its reasoning about cell phones is directly applicable to the NSA's reported invasions of Americans' cell phones, indefinite collection of all Americans' call logs, and other matters. Admittedly, the Court tends to defer more to the executive branch in national security contexts than in criminal ones like this, but this opinion is ominous for some of the NSA's surveillance programs. In some places, the opinion's discussion of the inherent intrusiveness of cell phone searches reads very much like Judge Leon's rejection of the NSA's phone metadata collection program from December 2013 (http://online.wsj.com/public/resources/documents/JudgeLeonNSAopinion12162013.pdf http://online.wsj.com/public/resources/documents/JudgeLeonNS...). And it's ominous for the NSA not just because the reasoning is directly applicable to some NSA programs, it's also that all 9 Justices signed on to an opinion that is more than assertive; it is scathing and sarcastic. E.g., Justice Roberts mocks the government for calling a cell phone search 'materially indistinguishable' from a search of a wallet, purse, or address book. That is "like saying a ride on horseback is materially indistinguishable from a flight to the moon" (p. 17). This line alone would make an NSA lawyer blanch: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime... Privacy comes at a cost" (p. 25). NSA lawyers should be seriously concerned that in the criminal context, the Court unanimously announced a broad rule that the government almost always needs a warrant to search even an arrestee's cell phone - and then blithely dismissed the government's arguments about the after-effects of such a rule, saying, "Oh well, privacy comes at a cost."

danesparza 12y ago
"if I were a lawyer for the NSA" ... well, I think you're mistaken already. I'm not sure the NSA operates the way you think it does (or the way many people hope it does). Considering that FISA courts (http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...) seem to operate outside the jurisdiction of our normal legal system, and considering the NSA is considered part of the US military with no Congressional oversight allowed (http://en.wikipedia.org/wiki/Nsa#Legal_accountability http://en.wikipedia.org/wiki/Nsa#Legal_accountability) I'm not sure this ruling with have any bearing on the NSA.

baddox 12y ago

Those are illegal as well.

yew 12y ago

Look at the footnote on page 18 of the opinion for a smidgen of context - it doesn't exactly explicitly mention wiretapping, but "the collection or inspection of aggregated digital information . . . under other circumstances" looks close enough. Reproduced here: Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.

wil421 12y ago

Simple answer: you don't have a resonsable expectation of privacy when you send something along the wire. This begs the question is info on the wire the same as sending a letter like generations before us did? A cellphone is just like a briefcase 30 years ago. It has all my letters (email), work papers (files) and other personal info like an address book.