When Is It Acceptable For The State To Violate Our Rights?

[gags]

From what I understand, the Govt. has apparently secured the cooperation of a number of telecom providers and has been doing "data mining" directly from their switches. Given the huge volume of information that flows electronically, I don't see how obtaining warrants for this type of communication is possible. However, if the information is ever to be used in court, it makes complete sense to require that it is gathered under a warrant.

[DavidOdden]

From what I understand, the Govt. has apparently secured the cooperation of a number of telecom providers and has been doing "data mining" directly from their switches. Given the huge volume of information that flows electronically, I don't see how obtaining warrants for this type of communication is possible. However, if the information is ever to be used in court, it makes complete sense to require that it is gathered under a warrant.

I don't understand how "use in court" makes a difference. If (and only if) it is legal to collect information without a warrant to use in looking for spies and terrorists to prevent them from harming us (say, by sending the police to the Brooklyn bridge), then I don't see why that same information cannot be used in court.

Why is it impossible to obtain warrants for data-mining?

[softwareNerd]

Condoleeza Rice, on the past Sunday shows, claimed that nature of the surveillance was such that the current procedure, which is set up based on suspect individuals was not applicable. Since we've also been told that the special court only turned down one request since 1978, it is reasonable to assume that the "listening" was not something for which one could get a warrant for a specific person.

For instance, suppose the government seized a criminal's (terrorist etc.) computer. In that computer, they found the IP addresses of 20 "compromised" machines. My neighbor, a retired school teacher, is pretty lax about her computer security. Suppose her computer was compromised and running a little proxy. In this context it would be a mechanism to redirect communication toward a specified target, while hiding the identity of the source. (Email is sent to the compromised machine. When received by the target, it appears to come from a machine owned by a retired teacher.) The government could reasonably assume that the computer running the proxy is not owned by a bad guy. There would not be much point for someone hiding their identity to be the one redirecting the traffic. So, the government --without even asking for the identity of the teacher -- might ask her ISP to send them all communication that is going through that proxy. [bTW: There are thousands of computers all over the world that run proxies, unknown to their owners. The biggest user of this illegal network are the guys behind "phishing" scams.]

Laws need to be changed to handle modern technology while still respecting people's rights.

[DavidOdden]

Condoleeza Rice, on the past Sunday shows, claimed that nature of the surveillance was such that the current procedure, which is set up based on suspect individuals was not applicable.

This is where I get confused. I was under the impression that a warrant needs to state the place to be searched, but not the name of the owner of goods to be possibly taken as evidence. That's why I think it should be possible to get a warrant to listen in on Jonesco cell phone transmissions, with no change in the law.

My neighbor, a retired school teacher, is pretty lax about her computer security.

That, on the other hand, is an area of law that needs changing. I can't recall right now where I saw this, but some federal law holds you absolutely responsible if your IP address is found to have been engaged in a cyber-crime.

[softwareNerd]

I can't recall right now where I saw this, but some federal law holds you absolutely responsible if your IP address is found to have been engaged in a cyber-crime.

While I see the point, I'd be worried about how the lines are drawn regarding what a reasonable person should do. Right now, there are many people who do not take some very basic steps to protect their computers from misuse. On the other hand, my concern is: what would be considered "reasonable steps" on the part of a "layman"?

[DavidOdden]

Right now, there are many people who do not take some very basic steps to protect their computers from misuse. On the other hand, my concern is: what would be considered "reasonable steps" on the part of a "layman"?

Yesterday morning, I was fuming about an intermittently crummy wireless connection and how slow sending email was, and in fixing it I discovered that our neighbor had bought a new wireless router. My previous router couldn't even use a WEP key correctly (hard to imagine...), and in an informal survey in class, 6 of 6 undergrads responding (of 10 present) did not know how to secure a wireless network. I know the secret to accessing all of the supposedly hidden online answer keys for a number of textbooks (I'm not telling more than that) because the info professionals there don't have a really good grip on security issues. The key element, as I see it, is what level of knowledge the average person should have about the details, and therefore how that should constrain their actions. If we take loaded guns or motor vehicles as a baseline, everybody should know that a loaded gun is potentially dangerous, same with a car hurtling down the highway. That means there are certain things should should not do with guns or cars: but it's not reasonable to include "drive them" or "possess them" in the list of dangerous actions. Right now, it's hard to list many cautions that "everybody should know" regarding computers. Logging on to a password-protected server and then walking away leaving yourself connected would be one of those things: everyone should know that the someone could come along right after you and use your account to do mischief. I still don't think that it should be a legal requirement that computer users understand cookies, or than they figure out a way to disable MSN Messenger, even if it's a good idea to do so. Properties of guns and cars have been fairly stable over years, so it is reasonable for the population at large to know certain cautions that are required when using them. Computer security is not stable: my T40 Thinkpad couldn't handle WPA until I got a new driver (and router which had a clue about WPA). I'd bet that the majority of people here -- who are on the upper edge of bright -- don't know what WPA is, except something about public paintings and bridges during The Depression.

[softwareNerd]

On the heels of the NSA story, comes a news-story that says the government has checked mosques all over the US for radiation levels. I must say I'm pretty impressed with the government. If I were a muslim I would be asking the government to do more of the same. Instead, here is what the article says:

Ibrahim Hooper, spokesman for the Washington-based Council on American-Islamic Relations, said the news "comes as a complete shock to us and everyone in the Muslim community". He added: "This creates the appearance that Muslims are targeted simply for being Muslims. I don't think this is the message the government wants to send at this time."

Edited December 25, 2005 by softwareNerd

[gags]

Why is it impossible to obtain warrants for data-mining?

I don't know that it's impossible, just that there seem to be problems with timing and flexibility given the technology. For instance, I read somewhere that if a suspect changes cell phones, a new warrant needs to be obtained.

Here's what Jamie Gorelick of the Clinton Admin said about the issue when she testified before Congress:

"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."

Reporting the day after Gorelick's testimony, the Washington Post's headline — on page A-19 — read, "Administration Backing No-Warrant Spy Searches." The story began, "The Clinton administration, in a little-noticed facet of the debate on intelligence reforms, is seeking congressional authorization for U.S. spies to continue conducting clandestine searches at foreign embassies in Washington and other cities without a federal court order. The administration's quiet lobbying effort is aimed at modifying draft legislation that would require U.S. counterintelligence officials to get a court order before secretly snooping inside the homes or workplaces of suspected foreign agents or foreign powers."

In her testimony, Gorelick made clear that the president believed he had the power to order warrantless searches for the purpose of gathering intelligence, even if there was no reason to believe that the search might uncover evidence of a crime. "Intelligence is often long range, its exact targets are more difficult to identify, and its focus is less precise," Gorelick said. "Information gathering for policy making and prevention, rather than prosecution, are its primary focus."

Here's a link to the Byron York article where the above info originally appeared:

http://www.nationalreview.com/york/york200512200946.asp

This article (also by York) does a decent job explaining the Bush rationale for not obtaining warrants:

http://www.nationalreview.com/york/york200512191334.asp

Edited December 25, 2005 by gags

[dark_unicorn]

As far as I can tell this spy program is aimed at people whom are calling into the United States. So the question I have to ask is "Do non-Americans enjoy the same U.S. Constitutional Rights as Americans"? The second question that I have to ask is "Do terrorists have a right to privacy."?

I am in agreement with the majority of posters here that it is never ethical for the government to violate individual rights. There is nothing practical about engaging in a morally compromised position on such an important issue. However, terrorists such as the Islamo-fascists don't really qualify as individuals when you analyze the ideology they have accepted. Furthermore, I would argue that the level of irrationalism that they have accepted pretty much cancels out all traces of their humanity.

[DavidOdden]

So the question I have to ask is "Do non-Americans enjoy the same U.S. Constitutional Rights as Americans"?

Of course they have the same rights: rights are not created by the Constitution. Rights are those conditions that are necessary to man's survival. The Constitution recognises certain of these rights, and (ostensively) guarantees that those rights will be protected for those subject to the Constitution and its laws. It is never proper for a government to abridge rights of anyone; but it is also never proper to force a society to commit mass suicide in order to protect the rights of an individual. The question of citizenship only becomes relevant in determining whether the government has an obligation to protect the rights of a non-citizen. I propose that it does: it is no more proper to allow a person to be beaten or murdered because they are non-citizens than it would be to allow a citizen to be beaten or murdered.

[Groovenstein]

DO, I think some clarification is in order because [cliche] it's just not that simple [/cliche]. Do you intend to refer only to what I will loosely call "substantive" rights, e.g. property, abortion/bodily integrity? Or do you also intend to refer to more "procedural" rights, e.g. due process, review by an Art. III court to the extent a citizen is entitled to it (which is not as often as you might think)?

[gags]

Context is an important part of the rights equation. In the middle of a war, our soldiers can't be expected to respect the rights of enemy combatants and/or civillians.

[dark_unicorn]

I would like to state for the record that what I was specifically getting at is the rights of terrorists to enjoy procedural rights granted under the constitution, which is different than the universal rights of "Life, Liberty and Property". I support the rights of all human beings to self-determine their own lives and their own property. If a person wishes to poison their soul by converting to Islam, it has no effect on me, however that does not give him the right to practice his twisted beliefs at the expense of my "Life, Liberty, or Property"However, I am not in favor of granting procedural rights to non-Americans suspected of terrorism. A good example would be the debachel of the "Saddam Trial". That man is not entitled to the right of presumed innocence any more than the people at the Nuremborg trials, because his guilt is so obvious it could almost be considered axiomatic (exaggeration).

Edited February 8, 2006 by dark_unicorn

[DavidOdden]

DO, I think some clarification is in order because [cliche] it's just not that simple [/cliche]. Do you intend to refer only to what I will loosely call "substantive" rights, e.g. property, abortion/bodily integrity? Or do you also intend to refer to more "procedural" rights, e.g. due process, review by an Art. III court to the extent a citizen is entitled to it (which is not as often as you might think)?

By rights I'm referring to "substantive rights", namely those conditions which are necessary for man's survival, as you say the right to your property, body, life...Due process and other so-called procedural rights are concrete limits on what the government allows itself to do, and it limits itself because to do otherwise would, somewhat by presumption, improperly expand what a government can do. The "right to trial by jury", for example, is a spurious "right" though it may be a good restriction on government power. Analogously, the "right to privacy" is a spurious right, but as far as government conduct against citizens goes, it's usually a good idea. On the scal from good (property rights) to evil (the right to an education), I would slot most procedural rights in the middle, except that the right to justice (see Rand's definition of justice -- objective treatment) is a right of exactly the same nature as the right to your life.

[Groovenstein]

. . . I would slot most procedural rights in the middle, except that the right to justice (see Rand's definition of justice -- objective treatment) is a right of exactly the same nature as the right to your life.

But aren't most, if not all, procedural rights actually specific implementations of a "right to justice"? Maybe we need to clarify what a "procedural" right is. Equal protection? Review by a court? Review by a federal court? Review by a federal constitutional, i.e. Article III, court? A statute of limitations defense?

[Groovenstein]

By the way, a case of interest on this point is U.S. v. U.S. District Court (U.S. 1972). I know basically nothing about this case, so don't ask me any questions. The case might not even be good law anymore, I don't know. But it has to do with wiretapping, so there's something on point in there. Plus, it has a funny name.

More specifically, the case "involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval."

[DavidOdden]

But aren't most, if not all, procedural rights actually specific implementations of a "right to justice"?

At least ideally. But that means that they are one step removed from rights themselves. Let's put it this way. There is no generic "right to not be overheard on the cell phone", but there are property rights. As a citizen, I would not be violating your rights by tapping in to your cell phone conversation, assuming that I didn't plant a bug in your phone. I might violate the property rights of your service provider by trespassing on their property and planting a listening device on one of their machines, and they could them come after me legally for violating their property rights. (Whether you have a property interest in the matter depends on your service contract, i.e. to what extent is the contract a "you takes your chances" agreement). Similarly, I do not have the right to justice when it comes to private dealings, i.e. my rights have not been violated when SmithCo hires Jones rather than me, even though I am the objectively best candidate. By contrast, you have the right to your property and I cannot rightly steal your property, nor can the government.

As far as I can see, the only specific right that pertains to the government is the right to justice, which is a limitation on the state's use of force in protection of rights. The essence of that is that the state may only use force to protect rights, and must do so in an objective manner, with reference to the fact that rights have been violated, and that certain things must be done to restore rights and prevent further rights violations. Whether the govenment may properly listen in on phone conversations depends on the necessity of them doing so, and there is no fundamental right to not be wiretapped. That is in contrast to a real fundamental right, such as the right to property or life.

Maybe we need to clarify what a "procedural" right is. Equal protection? Review by a court? Review by a federal court? Review by a federal constitutional, i.e. Article III, court? A statute of limitations defense?

As I understand "equal protection" and filtering out the modern "as defined under Title...." versions, equal protection is the right to justice, the right to that which you have earned and not that which you do not deserve. The right to be judged objectively with reference to fact -- did he do it, and is it wrong -- should be what a trial is about. As for reviews (do you mean appeals?) that's an interesting problem, but in a society governed by objective law I think it is less of an issue. The fact is that a judge can go off the deep end and get all socialist on us, in which case there needs to be someone with the power to correct those errors. The "right to an appeal" then would mean that anyone may point to such a reversible error, and that when recognized as such, the error would be overturned. This doesn't translate into an open-ended "right" to avoid justice my filing appeal after appeal.

I love it when the US sues itself.

[markb]

I think that it is really the typical story of government. Before if you had a dictatorship you would be able to do this without a warrant,even though we have democracy we still need to remember that the government needs to protect itself through means like that. Of course they havn't put cameras in other people's homes but have they? Would they tell you if they have? The fact is your insecure until your on Mars and living as a sole person- that will keep you from such things.

[Lemuel]

I receive daily emails from the Federation of America Scientists. From their blog, dated March 17th 2006:

http://www.fas.org/blog/secrecy/

Bill to Authorize Warrantless Surveillance Introduced

Senate Republicans led by Sen. Mike DeWine yesterday introduced a bill (pdf) that would authorize warrantless intelligence surveillance for up to 45 days, after which it could be renewed upon review by the Attorney General.

The bill would require notification to Congress of various aspects of the program.

But significantly, it would impose no external constraints on domestic surveillance by the executive branch.

The bill (pdf) would also impose penalties of up to $1 million and/or 15 years in prison for unauthorized disclosure of classified information relating to such surveillance activity.

Stung by criticism that this approach could be used to punish reporters who write about illegal government surveillance, the Senators declared that the proposed penalty, an amendment to 18 U.S.C. 798, "does not apply to journalists."

Thus, while the current 18 U.S.C. 798(a) apparently prohibits unauthorized disclosures of certain specific types of classified information by "any person", the new proposed section 798( would only apply to "any covered person," which means someone who has authorized possession of the classified information, but not a reporter or other recipient of the information.

See "DeWine, Graham, Hagel and Snowe Introduce the Terrorist Surveillance Act of 2006," news release, March 16.

On March 13, Sen. Russ Feingold introduced a resolution to censure President Bush for what he described as a violation of the Foreign Intelligence Surveillance Act.

[Hal]

From what I understand, the Govt. has apparently secured the cooperation of a number of telecom providers and has been doing "data mining" directly from their switches. Given the huge volume of information that flows electronically, I don't see how obtaining warrants for this type of communication is possible. However, if the information is ever to be used in court, it makes complete sense to require that it is gathered under a warrant.

Here's an update on this:

http://www.wired.com/news/technology/1,70619-0.html

Klein said he came forward because he does not believe that the Bush administration is being truthful about the extent of its extrajudicial monitoring of Americans' communications.

"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA’s spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA," Klein's wrote. "And unlike the controversy over targeted wiretaps of individuals’ phone calls, this potential spying appears to be applied wholesale to all sorts of internet communications of countless citizens."

Regardless of whether you believe in a right to privacy, I dont understand how any American could fail to find this terrifying. I think when you combine this with the known governmental attempts to disrupt law-obeying political groups (eg COINTELPRO), it wouldnt be stretching the facts to describe modern America as a police state.

Edited April 13, 2006 by Hal