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Legal checks on government snooping

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In the U.S., the fourth amendment creates a check on government snooping. It does so by two means. Firstly, it requires a warrant (which means that some judicial authority might be a check on the executive. Next, it specifies broad rules about how the decision ought to be made: probable cause should exist, the person requesting it should be liable if he makes a false representation to get it (so, he must swear or affirm), and it must be specific rather than a "fishing expedition".

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.

In light of the recent revelations about the NSA gathering a very wide net of phone records, and also about their asking for email etc. what checks and balances would you like to see in the law? I'm not interested in any argument that goes: "the government should not spy on anyone unless they're proven criminals". Judge-authorized phone taps and wire-taps can be legitimate when there is reasonable suspicion of crime. So, within that context -- where some snooping is legitimate -- what checks and balances would you suggest, so that the process is difficult to abuse.

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There are already sufficient checks and balances in place.  However, there can be no checks and balances when the government is being transformed from a nation of laws to a nation of men.  Nothing will suffice when individual rights are simply ignored.

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There are already sufficient checks and balances in place.  However, there can be no checks and balances when the government is being transformed from a nation of laws to a nation of men.  Nothing will suffice when individual rights are simply ignored.

I would distinguish between "legal principles" and "checks-and-balances". One can read the fourth amendment along with other clauses in the constitution as being sufficient legal principles. However, anything that involves lots of human being making decisions needs more.

If one looks at private corporations, they have certain structures and systems that add extra costs if everyone in the firm is honest and relatively competent, but which act as checks and controls against crooks or egregious incompetence. Sometimes, a job or a decision is split across two people or two locations. Sometimes certain decisions cannot be made without a second person being informed, or without certain documentation being kept, and so on. Human organizations will always be organizations of people, so one needs more than just a few abstract principles to act as a check on incompetence, misinterpretation, and worse.

The same with the law. In a sense, the legal system will always be "a nation of men". The way to make it more a "nation of laws" is to have systems, staffing and structures that allow for less abuse in applying the abstract principles.

So, for instance, the FISA court is a structure to act as a check on purely executive decisions in one area of snooping. It is not a zero, even if it has allowed every petition that came before it, because it is reasonable to presume that having it means that those petitioning it at least present a scintilla of probable cause when they target specific people. It is not enough, because the proceeding is not adversarial -- which is how most modern law tries to introduce a check into prosecution. Also, there is no broad reporting of gross statistics, which could be another check. Also, from Snowden's revelations it seems as though the court has adopted a ridiculously broad interpretation in some areas  of who can be targeted for so called "meta data".

 

Evidently, the laws need to more narrowly define what snooping is allowed, and also more checks need to be in place to ensure it is not abused. 

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The issue really is the secrecy of the FISA courts -- it allows for no accountability and is the antithesis to an objective trial. If the government is seeking a warrant to gather information on specific people, which certainly can be appropriate, it should be public information to ensure that specific procedures are taking place. But, what is happening now is that this information is closed off from the public and the court hearings are more of a formality than a real hearing, as evidenced by Snowden's comments and supported by the fact that the denial rate is only .03%.

 

The secrecy allows for no public oversight and no possible appeals by the parties affected. The only people present at the court hearings are a few members of the government and the judge. This should all be public information. 

Edited by thenelli01
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The principles are already embodied in the 4th amendment.

 

By trying to break it down into saying "Well, the constitution does not say anything specifically about e-mail." is defaulting on identifying what the broader application of a principle means to a new innovation or situation as it arises.

 

To expand a bit on what A is A said, it is like a transformation from a nation governed by principles (laws) being applied by men with concrete-bound mentalities.

 

The other loophole being exploited is like an inversion of this observation. By applying the idea that in matters of national security some aspects of the constitution can be circumvented seeks to extend the umbrella of that principle to allow the circumvention by just decreeing that new innovations or situations fall within its scope.

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Another thing that's needed, and doesn't seem to exist, is a framework for independent prosecutors investigating and charging bureaucrats, especially high level ones, who abuse the rules. For instance, I have read a recent rumor that the NSA is leaking the names of potential criminals they come across in their anti-terror surveillance to law enforcement agencies, including the DEA and IRS, who then falsify probable cause in the form of anonymous tips instead of mentioning the true source of the tip, to open up investigations. Then there is the IRS targeting of Tea Party groups, the gunrunning scandal to Mexico, and several other situations in which independent investigations seem to be warranted, but aren't taking place.

 

I am hoping that, with the constant stream of these kinds of revelations and/or rumors, Congress will act to institute a full time prosecutorial office independent of the Justice Department, tasked specifically with investigating and prosecuting abuses within the executive branch.

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In this video, Jim Harper seems to take the position that some of the right protections are already in place but they aren't being followed. Specifically, he thinks the FISA courts are misinterpreting the 3rd party precedent.

Edit: Right, Nicky, "parallel construction." If congress were to exercise authority over such flagrant abuses of power, there would be a national debate over the separation of powers and congress's "power grab." It would be a power grab, but only to put right what I see as a long-running imbalance of powers. Congress tends to cede too much power to the executive branch when they authorize new federal agencies.

Edited by FeatherFall
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In this video, Jim Harper seems to take the position that some of the right protections are already in place but they aren't being followed. Specifically, he thinks the FISA courts are misinterpreting the 3rd party precedent.

Does the FISA court decide on more than specific searches. Even if the person is un-named, does it get to decide on procedure like the "3-hop" rule mentioned in the video?

Any idea if a regular judge, issuing a warrant can allow something similar? For instance, a judge could issue a warrant to tap Gotti's phone. Can he also allow the tapping of 3-hops around Gotti? What about if the police say have very good information that Gotti now lives in a particular sub-division, but they have no idea which of (say) 100 homes is his. Could a regular judge issue a warrant to tap all 100 homes?

The video also makes me think that perhaps there ought to be a specifically declared right to privacy, specifically data-privacy. In the age of cloud-based services, and with rumours that the government can ask for encryption keys, perhaps a more specific constitutional restraint is needed. Of course, something like that is pie-in-the-sky; but, perhaps it is something an ideal constitution should include.

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"Three can keep a secret, if two of them are dead." ~ Benjamin Franklin

 

Privacy is the consequence of a right to property, but not an independent right; meaning corrospondence, e.g., papers and data, exist as property being transferred from one to another, but whatever privacy exists depends on the medium of transfer, not on the intentions of the individuals sending or receiving corrospondence.  If I compose private information in the form of a letter and place that in a sealed envelope, I might rightfully object to some 3rd party opening the envelope in order to see its contents.  However, whatever is printed on the exterior of the envelope carries no expectation of privacy, in that it represents a public announcement of my intention to transfer a concealed letter to the individual it is addressed to.  If the envelope were transparent, there'd be no expectation of privacy which compelled those who handle the transfer of property to look away from the contents.

 

With regard to metadata, wiretaps, etc., the medium of corrospondence determines whether a 3rd party is in fact a hacker, a snoop or otherwise violates a right to property.  That I own a telephone or computer as private property doesn't prohibit others from viewing my corrospondence any more than my ownership of a vehicle prohibits others from observing the smog it produces; whatever privacy I require, requires hand delivery; or some medium equivalent to a locked container keyed only to myself and those I chose to duplicate keys for.  Essentially, I believe the 4th Amendment was unnecessarily redundant in suggesting a right to privacy, which was previously presumed to be protected as a right to property; the question of unreasonablness with regard to search and seizure always has, and always will depend on the integrity of those tasked to secure our population from one another, and from threats from abroad.

 

Which is a long winded way of saying I believe the rules matter less than the integrity of the players.

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With regard to metadata, wiretaps, etc., the medium of corrospondence determines whether a 3rd party is in fact a hacker, a snoop or otherwise violates a right to property.  

Even beyond the right to property or privacy, I think the government should be particularly restricted in what public data they may gather about citizens. So, the government should be forbidden from gathering even publicly-available information about citizens, or information they can get from third-parties, unless is serves a very specific (non fishing-expiation) purpose.

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Even beyond the right to property or privacy, I think the government should be particularly restricted in what public data they may gather about citizens. So, the government should be forbidden from gathering even publicly-available information about citizens, or information they can get from third-parties, unless is serves a very specific (non fishing-expiation) purpose.

There is probably a distinction to be made between moritoring the flow of data and archiving it.  A policeman walking the beat isn't expected to look away from communications between individuals, but he'd need a legitimate reason to record them.  It's really quite remarkable how a well trained, experienced officer can detect nuances of behavior real-time that indicate criminality, and that ability is essential to crime prevention.

 

Real-time detection of data that is readily available seems to fall within the scope of legitimate policework, provided that unsuspicious momentary data isn't stored for future reference.  Perhaps a better solution to the legal, would be for communication providers to allow users the ability to permanently delete communications after transmission, meaning there'd be no record to collect.

Edited by Devil's Advocate
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  • 2 weeks later...

The WSJ reports that there've been a few cases of NSA staff spying on their love interest. It isn't surprising: I can imagine the temptation, and the number of cases appears to be low. However, two questions arise:

  • Even if a single individual has the ability to decide to spy on someone, is every such incident audited? When an NSA employee pulls up some information, does he have to log some type of reason for future reference. Is there any audit-process where a second person looks at the logs and does at least a top-level sanity check the way an auditor might do for a company's financial record. 
  • Also, the article says that these people were punished with administrative action or firing. I think anything short of firing is wrong. At a minimum, such a person ought to be fired and also have their government security clearance revoked. These jobs should not be open to people who have demonstrated that they will be tempted to do something illegal with their power. In addition, why are they not charged criminally? If I hack in to someone's email and am caught, I could be prosecuted: the penalty for someone in a position of trust ought to be higher.
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 In addition, why are they not charged criminally?

I suppose it would've been possible to charge someone without disclosing what they did wrong, or even where they worked when they did it, but just the existence of that trial would've sparked some curiosity. They probably figured "Why go through all that trouble? We can just sweep it under the rug, no one will ever know.".

 

And we wouldn't have, if it wasn't for Edward Snowden. Another example of what makes him a whistle-blower instead of a traitor.

Edited by Nicky
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Tie privacy into property rights and then actually protect that.

If municipalities can confiscate their citizens land, just like any dirty cop can get his weed for free, there is no possible way to protect your privacy from the feds.

Might it all simply be rooted in our cultures distain for property?

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