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The key point of this is that the database of calls was collected without court oversight. So all the defense the government used with the NSA database being o

The key point of this is that the database of calls was collected without court oversight. So all the defense the government used with the NSA database being overseen by the FISA court doesn't apply, there was no court oversight of this program. It did not target specific individuals and there was no probable cause before the collection of this data. This is a clear violation of the 4th Amendment in my view. >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.

rayiner 12y ago
The calls were cross-border: "The Justice Department secretly kept a database of Americans’ calls to foreign countries for more than a decade." The very first Congress, comprising many of the people who wrote the 4th amendment, passed a law allowing warrantless border searches. Since then, such searches have not been considered "unreasonable" under the theory that states have sovereign authority over what crosses their borders. Might run into problems with the FISA statute, I don't know.
- dsp1234 12y ago
  The very first Congress, comprising many of the people who wrote the 4th amendment, passed a law allowing warrantless border searches. According the text of the actual act[0] passed, the original intent was that a warrantless search was reasonable when there was suspicion of fraud with regards to the contents of goods being imported. Section 23 specifically mentions "on suspicion of fraud" and section 24 mentions "reason to suspect any goods, wares or merchandise subject to duty shall be concealed". It was not a blank allowance to search everyone at the border, particularly it did not allow for the searching of people leaving. Section 23 only mentions "after entry made of any goods, wares or merchandise". Since then, the this act has been expanded in to common law, and then expanded to allow for a general consideration of "reasonableness". Additionally, the act in section 23 specifically allowed for third party review of the search by requiring that the search be done with the oversight of "two or more reputable merchants". So yes, the first congress passed an act which allowed for limited warrantless border searches, but that doesn't tell the whole story since the scope of the authorized searches, and the warrantless border searches we have now are so far apart from each other. Sec. 23. And be it further enacted,Collector, or other officer, suspecting fraud, may open and examine packages. That it shall be lawful for the collector, or other officer of the customs, after entry made of any goods, wares or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof, and if upon such examination they shall be found to agree with the entries, the officer making such seizure shall cause the same to be re-packed, and delivered to the owner or claimant forthwith, and the expense of such examination shall be paid by the collector, and allowed in the settlement of his accounts; but if any of the packages so examined be found to differ in their contents from the entry, and it shall appear that such difference hath been made with intention to defraud the revenue, then all the goods, wares or merchandise contained in such package or packages, shall be forfeited: Provided always, That if the owner or consignee of such goods as shall not be accompanied with the original invoice, should choose to wait the receipt of the invoice, in such case, the collector shall take into his possession all such goods, wares and merchandise, and store the same, at the expense and risk of the owner or consignee, until the invoice shall arrive, or until they agree to have the same valued. Sec. 24. And be it further enacted,Goods subject to duty, and concealed, how to be searched for, seized, and secured. That every collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have full power and authority, to enter any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed; and therein to search for, seize, and secure any such goods, wares or merchandise; and if they shall have cause to suspect a concealment thereof, in any particular dwelling-house, store, building, or other place, they or either of them shall, upon application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the day time only) and there to search for such goods, and if any shall be found, to seize and secure the same for trial; and all such goods, wares and merchandise, on which the duties shall not have been paid or secured, shall be forfeited. [0] - http://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/1st_Congress/1st_Session/Chapter_5 http://en.wikisource.org/wiki/United_States_Statutes_at_Larg... sections 23 and 24
  - rayiner 12y ago
    That's an interesting bit of history, but it misses the point. Those border searches might have had other protections in place, but they didn't require warrants. And the 4th amendment doesn't say that otherwise illegal warrant less searches are okay because you have oversight. Thus, Congress didn't think border searches fell within the warrant requirement of the 4th amendment.
    - deleted 12y ago
      [deleted]
- nl 12y ago
  Not sure why this is downvoted. You might not like it, but it is pretty well established legal doctrine that cross border search doesn't require a warrent.
  - 0x5f3759df-i 12y ago
    I'm not sure you can claim that the movement of a physical object across a border is the same thing as a phone call. This becomes especially dangerous, once you start applying it to the internet, the average user has no way of knowing where a website they request is coming from and typing the same domain name will get a page from different locations depending on the circumstances. Am I really crossing a border by requesting a website from Europe? Should I need a passport to do so?
    - Terr_ 12y ago
      Also, what happens if/when the NSA is forces your theoretically-only-domestic packets to take a small detour out of the country? Or equally likely, they have an agreement with a foreign power that they each spy on one-another's citizens and share findings.
    - intopieces 12y ago
      >I'm not sure you can claim that the movement of a physical object across a border is the same thing as a phone call. It seems like this discussion is getting lost in the distinction between what we all believe is right/just, and what the law covers/claims/allows, which we know are distinct. Again, outside of the realm of our approval, it certainly is likely the government would claim that the movement of the a physical object across a border is the same thing as a phone call. The stretching of these kinds of laws to near-breaking is the court's Raison d'être. Remember, the right of business owners to deny service to black people was struck down using the interstate commerce clause[0] - something the founders certainly didn't have in mind whenever they wrote it. [0]Heart of Atlanta Motel, Inc. v. United States (1964) http://www.law.cornell.edu/supremecourt/text/379/241 http://www.law.cornell.edu/supremecourt/text/379/241
- deleted 12y ago
  [deleted]
- Zigurd 12y ago
  You are seriously saying that trans-border data flows are so analogous to the operation of custom houses that the 4th it completely meaningless just because someone is carrying my data across borders? Funny how tariffs on imports were never applied to data. That analogy proved to be invalid. And yet, tariffs are what border searches were meant to enforce.
  - rayiner 12y ago
    There's no analogy. Borders are fundamental--states exist in part to create the difference between "inside" and "outside" the border. And historically the understanding has been that states have authority over anything that crosses the border into or from foreign territory. The tariff issue is irrelevant. Congress chose not to apply tariffs to international data flows. They did it for pragmatic reasons, not because they couldn't.
    - Zigurd 12y ago
      > They did it for pragmatic reasons, not because they couldn't. I didn't climb onto the 10 foot roof with a 6 foot ladder because it wouldn't work, not because I couldn't. Like that?
kyrra 12y ago
I think the other key part is that it was only tracking calls to/from specific countries (in the case of this article, it's Iran, but other countries are on the list). I'm not saying this makes it better, but it is not all domestic calls as could be inferred from the title.
- themartorana 12y ago
  It's not, but just for the conjecture of it, let's assume that list contains Canada, since we have to protect our borders. And Mexico. And of course the UK, because they speak English and it's much easier for drug dealers to collude with other English speakers. And so on... So don't think Iran is the only country on the list, they just trumpet that to dig up thoughts of terrorism oh my. I'm jaded. I'm pretty sure pre-Snowden I was salty, but now I assume the worst of the government and assume they're always lying. Always.
  - xnull1guest 12y ago
    > So don't think Iran is the only country on the list, they just trumpet that to dig up thoughts of terrorism oh my. For some reason Americans still overwhelmingly and falsely believe that Iran had something to do with 9/11.
    - tomohawk 12y ago
      I've not ever heard that. But there is plenty of involvement in other incidents: https://en.wikipedia.org/wiki/Iran_and_state-sponsored_terrorism https://en.wikipedia.org/wiki/Iran_and_state-sponsored_terro...
      - xnull1guest 12y ago
        Oh certainly. State sponsorship of terrorism is regular practice. https://en.wikipedia.org/wiki/United_States_and_state-sponsored_terrorism https://en.wikipedia.org/wiki/United_States_and_state-sponso...
moe 12y ago
So all the defense the government used with the NSA database being overseen by the FISA court doesn't apply, there was no court oversight of this program. To be fair, calling FISA a "court" is a bit of an overstatement[1]. It's very unlikely that FISA oversight would have stopped or changed this in any way. Nonetheless it might be interesting to learn why they skipped the fig leaf altogether in this case. [1] http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court#Criticism http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...
- rhino369 12y ago
  It's comprised of legitimate federal judges. I'm not sure how much more you want.
  - moe 12y ago
    Read the link in my comment, it goes into great detail about what FISA leaves to be desired. An NSA analyst sums it up as: "Kangaroo court[1] with a rubber stamp". [1] http://en.wikipedia.org/wiki/Kangaroo_court http://en.wikipedia.org/wiki/Kangaroo_court
  - rdtsc 12y ago
    Presumably if said judges worked in a coffee shop making and serving coffee, that coffee shop would not all of the sudden become a federal court?
  - higherpurpose 12y ago
    Federal judges that never question NSA and automatically approve "3 month general warrants for mass collection". Where's the "oversight" in that? That's why it was put there, no? To have oversight over NSA. How can you have any oversight when you just tell NSA to "collect everything".
  - CamperBob2 12y ago
    "Legitimate" federal judges appointed by one judge (to rule them all, presumably.)
rhino369 12y ago
But it isn't a violation of the 4th amendment according the Supreme Court. Smith v. Maryland, 442 U.S. 735 (1979). The number you dial isn't private because you are showing it to the phone company.
- skywhopper 12y ago
  This is what the court said back then, but the court and the public were naive, and the future implications of such a rule were not yet clear. But even without hindsight, I think the court's logic was flawed. The phone company does not publish a list of who called whom for all the world to read. We would be justifiably outraged if they did. That's the test we should use in determining if information shared with a company is "private". Just like I expect the phone company to keep my payment information private, I also ought to be able to expect my call history is private.
- 0x5f3759df-i 12y ago
  U.S. District Judge Richard J. Leon has already rejected that Maryland applies to the NSA bulk collection. Ultimately it will come down the supreme court but I would not be surprised to see them limit the scope of Maryland. >The government’s legal justification for the call-tracking program is based on a 1979 case, Smith v. Maryland, involving the surveillance of a criminal suspect over a two-day period. In that case, the Supreme Court said that Americans have no expectation of privacy in the telephone metadata that companies hold as business records, and that therefore a warrant is not required to obtain such information. A succession of judges on the Foreign Intelligence Surveillance Court have adopted the government’s argument based on that ruling. >But Leon said the question the Supreme Court confronted in 1979 is not the same as the one he was faced with. “Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago, that a precedent like Smith does not apply?” he wrote. “The answer, unfortunately for the government, is now.” http://www.washingtonpost.com/national/judge-nsas-collecting-of-phone-records-is-likely-unconstitutional/2013/12/16/6e098eda-6688-11e3-a0b9-249bbb34602c_story.html http://www.washingtonpost.com/national/judge-nsas-collecting...
gcb0 12y ago
they were targeting foreigners outside of the usa. which by chance happened to be taking to an American, much to the spies surprise. -- their lawyers.

rayiner 12y ago

The calls were cross-border: "The Justice Department secretly kept a database of Americans’ calls to foreign countries for more than a decade." The very first Congress, comprising many of the people who wrote the 4th amendment, passed a law allowing warrantless border searches. Since then, such searches have not been considered "unreasonable" under the theory that states have sovereign authority over what crosses their borders. Might run into problems with the FISA statute, I don't know.

dsp1234 12y ago
The very first Congress, comprising many of the people who wrote the 4th amendment, passed a law allowing warrantless border searches. According the text of the actual act[0] passed, the original intent was that a warrantless search was reasonable when there was suspicion of fraud with regards to the contents of goods being imported. Section 23 specifically mentions "on suspicion of fraud" and section 24 mentions "reason to suspect any goods, wares or merchandise subject to duty shall be concealed". It was not a blank allowance to search everyone at the border, particularly it did not allow for the searching of people leaving. Section 23 only mentions "after entry made of any goods, wares or merchandise". Since then, the this act has been expanded in to common law, and then expanded to allow for a general consideration of "reasonableness". Additionally, the act in section 23 specifically allowed for third party review of the search by requiring that the search be done with the oversight of "two or more reputable merchants". So yes, the first congress passed an act which allowed for limited warrantless border searches, but that doesn't tell the whole story since the scope of the authorized searches, and the warrantless border searches we have now are so far apart from each other. Sec. 23. And be it further enacted,Collector, or other officer, suspecting fraud, may open and examine packages. That it shall be lawful for the collector, or other officer of the customs, after entry made of any goods, wares or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof, and if upon such examination they shall be found to agree with the entries, the officer making such seizure shall cause the same to be re-packed, and delivered to the owner or claimant forthwith, and the expense of such examination shall be paid by the collector, and allowed in the settlement of his accounts; but if any of the packages so examined be found to differ in their contents from the entry, and it shall appear that such difference hath been made with intention to defraud the revenue, then all the goods, wares or merchandise contained in such package or packages, shall be forfeited: Provided always, That if the owner or consignee of such goods as shall not be accompanied with the original invoice, should choose to wait the receipt of the invoice, in such case, the collector shall take into his possession all such goods, wares and merchandise, and store the same, at the expense and risk of the owner or consignee, until the invoice shall arrive, or until they agree to have the same valued. Sec. 24. And be it further enacted,Goods subject to duty, and concealed, how to be searched for, seized, and secured. That every collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have full power and authority, to enter any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed; and therein to search for, seize, and secure any such goods, wares or merchandise; and if they shall have cause to suspect a concealment thereof, in any particular dwelling-house, store, building, or other place, they or either of them shall, upon application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the day time only) and there to search for such goods, and if any shall be found, to seize and secure the same for trial; and all such goods, wares and merchandise, on which the duties shall not have been paid or secured, shall be forfeited. [0] - http://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/1st_Congress/1st_Session/Chapter_5 http://en.wikisource.org/wiki/United_States_Statutes_at_Larg... sections 23 and 24
- rayiner 12y ago
  That's an interesting bit of history, but it misses the point. Those border searches might have had other protections in place, but they didn't require warrants. And the 4th amendment doesn't say that otherwise illegal warrant less searches are okay because you have oversight. Thus, Congress didn't think border searches fell within the warrant requirement of the 4th amendment.
  - deleted 12y ago
    [deleted]
nl 12y ago
Not sure why this is downvoted. You might not like it, but it is pretty well established legal doctrine that cross border search doesn't require a warrent.
- 0x5f3759df-i 12y ago
  I'm not sure you can claim that the movement of a physical object across a border is the same thing as a phone call. This becomes especially dangerous, once you start applying it to the internet, the average user has no way of knowing where a website they request is coming from and typing the same domain name will get a page from different locations depending on the circumstances. Am I really crossing a border by requesting a website from Europe? Should I need a passport to do so?
  - Terr_ 12y ago
    Also, what happens if/when the NSA is forces your theoretically-only-domestic packets to take a small detour out of the country? Or equally likely, they have an agreement with a foreign power that they each spy on one-another's citizens and share findings.
  - intopieces 12y ago
    >I'm not sure you can claim that the movement of a physical object across a border is the same thing as a phone call. It seems like this discussion is getting lost in the distinction between what we all believe is right/just, and what the law covers/claims/allows, which we know are distinct. Again, outside of the realm of our approval, it certainly is likely the government would claim that the movement of the a physical object across a border is the same thing as a phone call. The stretching of these kinds of laws to near-breaking is the court's Raison d'être. Remember, the right of business owners to deny service to black people was struck down using the interstate commerce clause[0] - something the founders certainly didn't have in mind whenever they wrote it. [0]Heart of Atlanta Motel, Inc. v. United States (1964) http://www.law.cornell.edu/supremecourt/text/379/241 http://www.law.cornell.edu/supremecourt/text/379/241
deleted 12y ago
[deleted]
Zigurd 12y ago
You are seriously saying that trans-border data flows are so analogous to the operation of custom houses that the 4th it completely meaningless just because someone is carrying my data across borders? Funny how tariffs on imports were never applied to data. That analogy proved to be invalid. And yet, tariffs are what border searches were meant to enforce.
- rayiner 12y ago
  There's no analogy. Borders are fundamental--states exist in part to create the difference between "inside" and "outside" the border. And historically the understanding has been that states have authority over anything that crosses the border into or from foreign territory. The tariff issue is irrelevant. Congress chose not to apply tariffs to international data flows. They did it for pragmatic reasons, not because they couldn't.
  - Zigurd 12y ago
    > They did it for pragmatic reasons, not because they couldn't. I didn't climb onto the 10 foot roof with a 6 foot ladder because it wouldn't work, not because I couldn't. Like that?

kyrra 12y ago

I think the other key part is that it was only tracking calls to/from specific countries (in the case of this article, it's Iran, but other countries are on the list). I'm not saying this makes it better, but it is not all domestic calls as could be inferred from the title.

themartorana 12y ago
It's not, but just for the conjecture of it, let's assume that list contains Canada, since we have to protect our borders. And Mexico. And of course the UK, because they speak English and it's much easier for drug dealers to collude with other English speakers. And so on... So don't think Iran is the only country on the list, they just trumpet that to dig up thoughts of terrorism oh my. I'm jaded. I'm pretty sure pre-Snowden I was salty, but now I assume the worst of the government and assume they're always lying. Always.
- xnull1guest 12y ago
  > So don't think Iran is the only country on the list, they just trumpet that to dig up thoughts of terrorism oh my. For some reason Americans still overwhelmingly and falsely believe that Iran had something to do with 9/11.
  - tomohawk 12y ago
    I've not ever heard that. But there is plenty of involvement in other incidents: https://en.wikipedia.org/wiki/Iran_and_state-sponsored_terrorism https://en.wikipedia.org/wiki/Iran_and_state-sponsored_terro...
    - xnull1guest 12y ago
      Oh certainly. State sponsorship of terrorism is regular practice. https://en.wikipedia.org/wiki/United_States_and_state-sponsored_terrorism https://en.wikipedia.org/wiki/United_States_and_state-sponso...

moe 12y ago

So all the defense the government used with the NSA database being overseen by the FISA court doesn't apply, there was no court oversight of this program. To be fair, calling FISA a "court" is a bit of an overstatement[1]. It's very unlikely that FISA oversight would have stopped or changed this in any way. Nonetheless it might be interesting to learn why they skipped the fig leaf altogether in this case. [1] http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court#Criticism http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...

rhino369 12y ago
It's comprised of legitimate federal judges. I'm not sure how much more you want.
- moe 12y ago
  Read the link in my comment, it goes into great detail about what FISA leaves to be desired. An NSA analyst sums it up as: "Kangaroo court[1] with a rubber stamp". [1] http://en.wikipedia.org/wiki/Kangaroo_court http://en.wikipedia.org/wiki/Kangaroo_court
- rdtsc 12y ago
  Presumably if said judges worked in a coffee shop making and serving coffee, that coffee shop would not all of the sudden become a federal court?
- higherpurpose 12y ago
  Federal judges that never question NSA and automatically approve "3 month general warrants for mass collection". Where's the "oversight" in that? That's why it was put there, no? To have oversight over NSA. How can you have any oversight when you just tell NSA to "collect everything".
- CamperBob2 12y ago
  "Legitimate" federal judges appointed by one judge (to rule them all, presumably.)

rhino369 12y ago

But it isn't a violation of the 4th amendment according the Supreme Court. Smith v. Maryland, 442 U.S. 735 (1979). The number you dial isn't private because you are showing it to the phone company.

skywhopper 12y ago
This is what the court said back then, but the court and the public were naive, and the future implications of such a rule were not yet clear. But even without hindsight, I think the court's logic was flawed. The phone company does not publish a list of who called whom for all the world to read. We would be justifiably outraged if they did. That's the test we should use in determining if information shared with a company is "private". Just like I expect the phone company to keep my payment information private, I also ought to be able to expect my call history is private.
0x5f3759df-i 12y ago
U.S. District Judge Richard J. Leon has already rejected that Maryland applies to the NSA bulk collection. Ultimately it will come down the supreme court but I would not be surprised to see them limit the scope of Maryland. >The government’s legal justification for the call-tracking program is based on a 1979 case, Smith v. Maryland, involving the surveillance of a criminal suspect over a two-day period. In that case, the Supreme Court said that Americans have no expectation of privacy in the telephone metadata that companies hold as business records, and that therefore a warrant is not required to obtain such information. A succession of judges on the Foreign Intelligence Surveillance Court have adopted the government’s argument based on that ruling. >But Leon said the question the Supreme Court confronted in 1979 is not the same as the one he was faced with. “Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago, that a precedent like Smith does not apply?” he wrote. “The answer, unfortunately for the government, is now.” http://www.washingtonpost.com/national/judge-nsas-collecting-of-phone-records-is-likely-unconstitutional/2013/12/16/6e098eda-6688-11e3-a0b9-249bbb34602c_story.html http://www.washingtonpost.com/national/judge-nsas-collecting...

gcb0 12y ago

they were targeting foreigners outside of the usa. which by chance happened to be taking to an American, much to the spies surprise. -- their lawyers.