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https://www.aclu.org/technology-and-liberty/nsa-spying-americans-illegal https://www.aclu.org/technology-and-liberty/nsa-spying-ameri... We can start with the

https://www.aclu.org/technology-and-liberty/nsa-spying-americans-illegal https://www.aclu.org/technology-and-liberty/nsa-spying-ameri... We can start with the 4th amendment and move on from there.

rayiner 12y ago
Its quite debatable whether the 4th amendment prohibits the NSA programs we know about.[1] And I can't think of any support for the position that it prohibits requiring back doors that are used with a warrant, or only used when the user is foreign. [1] I won't rehash it here, but the 4th amendment has two big loopholes: 3rd party doctrine, and non-applicability to foreigners on foreign soil. The NSA programs seem calculated to fit into those loopholes.
- sitkack 12y ago
  They want you to think those loopholes are valid. I would argue that they are not. 4th definitely prohibits many NSA programs.
  - rayiner 12y ago
    The areas not covered by the 4th amendment are set forth in reasonable judicial interpretations of the text of the amendment, and the NSA is entitled to rely on those interpretations. 1) The understanding that the 4th amendment doesn't apply to anything crossing the border (like data in undersea cables) dates back to the First Congress, which enacted customs laws that allowed warrantless searches at the border. This interpretation is well-supported by the history of the amendment, which arose not in opposition to border searches generally, but in opposition to customers inspectors searching peoples' houses for contraband. 2) The idea that the 4th amendment follows around pieces of information in the hands of third parties is contrary to two basic understandings of law. A) consent (e.g. Google consenting to disclose records in its possession), is always an acceptable alternative to a warrant; B) subpoenas can compel people to produce documents in their possession. At the end of the day, you have to grapple with one basic, undeniable fact: the 4th amendment does not say people have a right to "privacy" the same way the 1st amendment says people have a right to "free speech." It talks about quite specific conduct, and the things that privacy advocates want the 4th amendment to protect (e.g. call metadata that is not only not in the possession of the individual asserting the 4th amendment right, but not even accessible to the individual!) doesn't fit cleanly into the text of the amendment.
    - nathan_long 12y ago
      I can't speak for anyone else, but I think those "reasonable judicial interpretations" represent a gutting of the 4th amendment. The writers specified "persons, houses, papers, and effects" as protected - in other words, everything they could think of in their day. For every one of those things, they said that the government needed probable cause and a warrant. Today, our persons nearly always carry trackable devices. Our houses are where we search the web and video chat with loved ones. Our papers and effects are files, which we back up over the cloud. Most conversations we have are digital. It is impossible to function in modern society without giving lots of data to third parties as a side effect. All of this is tracked, recorded, stored and analyzed without cause or warrants. If it's claimed that the 4th amendment covers the grocery list in my pocket, but none of the my truly sensitive data, then I say it's a fat lot of good. With interpretations like those, why bother having laws at all?
      - rayiner 12y ago
        > I can't speak for anyone else, but I think those "reasonable judicial interpretations" represent a gutting of the 4th amendment. In 1789: a) The government could have subpoenaed your banking records without a warrant. 1789 wasn't prehistory--the founders were lawyers and businessmen, and would have had an understanding of sensitive commercial, accounting, and legal records being held by third parties. b) The First Congress passed a law enabling warrantless customs searches at the border. The founders perceived the government's right to control what crossed the border outweighed anyone's privacy interests. > With interpretations like those, why bother having laws at all? To the contrary. Textual interpretations of law protect you. They're predictable and hard to argue with. It's results-oriented interpretations that are dangerous, because there's no guarantee that the decision maker and you are going to have the same understanding of which results are important.
        nathan_long 12y ago
        Thank you for making an interesting point with concrete examples. This was very informative.

https://www.aclu.org/technology-and-liberty/nsa-spying-americans-illegal https://www.aclu.org/technology-and-liberty/nsa-spying-ameri... We can start with the 4th amendment and move on from there.

rayiner 12y ago

Its quite debatable whether the 4th amendment prohibits the NSA programs we know about.[1] And I can't think of any support for the position that it prohibits requiring back doors that are used with a warrant, or only used when the user is foreign. [1] I won't rehash it here, but the 4th amendment has two big loopholes: 3rd party doctrine, and non-applicability to foreigners on foreign soil. The NSA programs seem calculated to fit into those loopholes.

sitkack 12y ago
They want you to think those loopholes are valid. I would argue that they are not. 4th definitely prohibits many NSA programs.
- rayiner 12y ago
  The areas not covered by the 4th amendment are set forth in reasonable judicial interpretations of the text of the amendment, and the NSA is entitled to rely on those interpretations. 1) The understanding that the 4th amendment doesn't apply to anything crossing the border (like data in undersea cables) dates back to the First Congress, which enacted customs laws that allowed warrantless searches at the border. This interpretation is well-supported by the history of the amendment, which arose not in opposition to border searches generally, but in opposition to customers inspectors searching peoples' houses for contraband. 2) The idea that the 4th amendment follows around pieces of information in the hands of third parties is contrary to two basic understandings of law. A) consent (e.g. Google consenting to disclose records in its possession), is always an acceptable alternative to a warrant; B) subpoenas can compel people to produce documents in their possession. At the end of the day, you have to grapple with one basic, undeniable fact: the 4th amendment does not say people have a right to "privacy" the same way the 1st amendment says people have a right to "free speech." It talks about quite specific conduct, and the things that privacy advocates want the 4th amendment to protect (e.g. call metadata that is not only not in the possession of the individual asserting the 4th amendment right, but not even accessible to the individual!) doesn't fit cleanly into the text of the amendment.
  - nathan_long 12y ago
    I can't speak for anyone else, but I think those "reasonable judicial interpretations" represent a gutting of the 4th amendment. The writers specified "persons, houses, papers, and effects" as protected - in other words, everything they could think of in their day. For every one of those things, they said that the government needed probable cause and a warrant. Today, our persons nearly always carry trackable devices. Our houses are where we search the web and video chat with loved ones. Our papers and effects are files, which we back up over the cloud. Most conversations we have are digital. It is impossible to function in modern society without giving lots of data to third parties as a side effect. All of this is tracked, recorded, stored and analyzed without cause or warrants. If it's claimed that the 4th amendment covers the grocery list in my pocket, but none of the my truly sensitive data, then I say it's a fat lot of good. With interpretations like those, why bother having laws at all?
    - rayiner 12y ago
      > I can't speak for anyone else, but I think those "reasonable judicial interpretations" represent a gutting of the 4th amendment. In 1789: a) The government could have subpoenaed your banking records without a warrant. 1789 wasn't prehistory--the founders were lawyers and businessmen, and would have had an understanding of sensitive commercial, accounting, and legal records being held by third parties. b) The First Congress passed a law enabling warrantless customs searches at the border. The founders perceived the government's right to control what crossed the border outweighed anyone's privacy interests. > With interpretations like those, why bother having laws at all? To the contrary. Textual interpretations of law protect you. They're predictable and hard to argue with. It's results-oriented interpretations that are dangerous, because there's no guarantee that the decision maker and you are going to have the same understanding of which results are important.
      - nathan_long 12y ago
        Thank you for making an interesting point with concrete examples. This was very informative.