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Just because it's illegal doesn't mean it has to stop. The reality was it was pretty difficult to call it legal with a straight face even before this ruling on

Just because it's illegal doesn't mean it has to stop. The reality was it was pretty difficult to call it legal with a straight face even before this ruling on 4th amendment grounds (even if congress calls it legal, the constitution supercedes it). For an authoritarian, the law is whatever they say it is.

rayiner 11y ago
This wasn't a 4th amendment ruling. It was based on the language of the applicable statute. Also, it was also very easy to call the program legal prior to the ruling. From the perspective of the agency, they've got a Supreme Court case (Smith v. Maryland) that states that people don't have a privacy interest in phone call metadata. Monitoring the phone metadata of many people versus one person is just a matter of scale, and scale is not really a factor for the 4th amendment. I can't think of anything where the Supreme Court has said that something is legal under the 4th amendment for one person, but not for millions of people.
- deciplex 11y ago
  He didn't say it was a fourth amendment ruling. The initial statement is a little ambiguous, but the subsequent parenthetical makes his intent clear.
- mikecb 11y ago
  They've made other scale distinctions though, for example Terry, with limits on length and scope of the stop in relation to the lower suspicion level, and others, so its not a ridiculous proposition.
krylon 11y ago
I tend to agree. From what we've seen so far, one has to assume the NSA does not really care about the legal status of its activities. As we say in Germany: Legal - illegal - Scheißegal. They may rename the program, shuffle it to so other branch of their organisation, but I don't think they are going to stop. (Another problem, of course, is that they would have a very hard time proving they stopped, even if they did. If they just said, "yeah, we're sorry, won't happen again", who would believe them?)
- deciplex 11y ago
  > Another problem, of course, is that they would have a very hard time proving they stopped, even if they did. If they just said, "yeah, we're sorry, won't happen again", who would believe them? This is a good argument for abolishing the NSA. As an institution it has completely lost credibility with any reasonable member of the electorate - it is hopelessly naive to believe what they say. Perhaps it can be redeemed with a sustained program of vigorous oversight (over-vigorous, really), but failing that it needs to be abolished and replaced by a new organization with a different charter and most of the influential members of the NSA absent from the levers of power. Of course, neither of these things are likely to happen with the electorate in the state it's currently in.
- rayiner 11y ago
  > From what we've seen so far, one has to assume the NSA does not really care about the legal status of its activities. To the contrary, what we have seen so far is that the NSA has structured its activities around well-defined legal principles: No privacy interest in things crossing the border -> tapping cross-border fiber cables but not purely domestic ones. No privacy interest in information held by third parties -> sending third-party subpoenas instead of directly tapping companies' networks. No privacy interest in phone metadata -> collecting phone metadata. Inapplicability of the 4th amendment to foreign nationals not on U.S. soil -> filtering out purely domestic communications.
  - throwawayaway 11y ago
    > No privacy interest in information held by third parties -> sending third-party subpoenas instead of directly tapping companies' networks really? https://plus.google.com/+MikeHearn/posts/LW1DXJ2BK8k https://plus.google.com/+MikeHearn/posts/LW1DXJ2BK8k
    - rayiner 11y ago
      If you follow the links in the article: > We do not know exactly how the NSA and GCHQ intercept the data, other than it happens on British territory.

rayiner 11y ago

This wasn't a 4th amendment ruling. It was based on the language of the applicable statute. Also, it was also very easy to call the program legal prior to the ruling. From the perspective of the agency, they've got a Supreme Court case (Smith v. Maryland) that states that people don't have a privacy interest in phone call metadata. Monitoring the phone metadata of many people versus one person is just a matter of scale, and scale is not really a factor for the 4th amendment. I can't think of anything where the Supreme Court has said that something is legal under the 4th amendment for one person, but not for millions of people.

deciplex 11y ago
He didn't say it was a fourth amendment ruling. The initial statement is a little ambiguous, but the subsequent parenthetical makes his intent clear.
mikecb 11y ago
They've made other scale distinctions though, for example Terry, with limits on length and scope of the stop in relation to the lower suspicion level, and others, so its not a ridiculous proposition.

krylon 11y ago

I tend to agree. From what we've seen so far, one has to assume the NSA does not really care about the legal status of its activities. As we say in Germany: Legal - illegal - Scheißegal. They may rename the program, shuffle it to so other branch of their organisation, but I don't think they are going to stop. (Another problem, of course, is that they would have a very hard time proving they stopped, even if they did. If they just said, "yeah, we're sorry, won't happen again", who would believe them?)

deciplex 11y ago
> Another problem, of course, is that they would have a very hard time proving they stopped, even if they did. If they just said, "yeah, we're sorry, won't happen again", who would believe them? This is a good argument for abolishing the NSA. As an institution it has completely lost credibility with any reasonable member of the electorate - it is hopelessly naive to believe what they say. Perhaps it can be redeemed with a sustained program of vigorous oversight (over-vigorous, really), but failing that it needs to be abolished and replaced by a new organization with a different charter and most of the influential members of the NSA absent from the levers of power. Of course, neither of these things are likely to happen with the electorate in the state it's currently in.
rayiner 11y ago
> From what we've seen so far, one has to assume the NSA does not really care about the legal status of its activities. To the contrary, what we have seen so far is that the NSA has structured its activities around well-defined legal principles: No privacy interest in things crossing the border -> tapping cross-border fiber cables but not purely domestic ones. No privacy interest in information held by third parties -> sending third-party subpoenas instead of directly tapping companies' networks. No privacy interest in phone metadata -> collecting phone metadata. Inapplicability of the 4th amendment to foreign nationals not on U.S. soil -> filtering out purely domestic communications.
- throwawayaway 11y ago
  > No privacy interest in information held by third parties -> sending third-party subpoenas instead of directly tapping companies' networks really? https://plus.google.com/+MikeHearn/posts/LW1DXJ2BK8k https://plus.google.com/+MikeHearn/posts/LW1DXJ2BK8k
  - rayiner 11y ago
    If you follow the links in the article: > We do not know exactly how the NSA and GCHQ intercept the data, other than it happens on British territory.