Domestic Surveillance / Reasonable search

Current Events Domestic United States Politics
21

Harry Binswanger said

 Good point? Food for thought? Completely wrong? Something else?

 

  1. His first claim is that the NSA surveillance has prevented terrorist attacks. But is this true? Sure, people who are running the surveillance program say so, but is there any independent investigation? No, and HB’s own handpicked example is self-admittedly not an example of the spying preventing an attack, so we have no evidence of this.

 

  1. A totalitarian government will spy on us anyway, therefore it’s okay, we just go ahead and let it spy on us now? How is that anything resembling a valid argument?
22

Well I don’t think information gathering has to rely on force. Not necessarily.

But the information gathering we are discussing in this thread is relying on force. All of it. None of this information was handed over voluntarily.

How this is was on the news all the time and the drug war disaster isn’t is hard to explain.

Your question was “How is this unacceptable?”, not “How is this more unacceptable than the war on drugs?”.

Does this change in your position mean that your original question has been answered to your satisfaction, and you now understand why this is unacceptable?

23

A record of who I call is data, not metadata.

Fair enough, but I’ll just say that even if it’s just data, that won’t change what I said. If it’s just data about some phone number X calling phone number Y, I’d call that meta-data still because it says nothing about content, it only tells the phone numbers. I’ve heard of no evidence that anyone is looking for content and listening to everything you say on the phone. This is not a net - it’s closer to just a police officer walking down the street observing people. I acknowledge the bit about “a camera on every corner”, but a camera is a lot more intrusive than meta-data. The only difference is you use a computer. No one is presumed innocent or guilty even, since there is not anything intrusive in the first place. That is, unless you imagine it like some FBI people sitting around literally listening to your conversations. Data is useless until someone processes it quite thoroughly, and that’s when your privacy may be violated. No one is listening.

If there is no data collection, then the government is literally useless on the Internet. The problem is, while there is a degree of private space, there is also a degree of space that is just as open as a field in the forest. There’s a difference between you as an individual and the pieces of data you send out. As an individual there are particular data points about your life, like birth dates or birth place, and information like the content of your emails, phone calls, etc. Then there is meta-data, like the time a call is placed, or how often a number receives calls. In a massive database, that says nothing at all, yet a database will establish a cyberspace landscape with which to traverse (it’s digital space, not spatial territory though). If there is something really odd going on, perhaps calling to the middle of nowhere in Pakistan 20 times a day, then the data can be investigated further, as with any investigation. My only concern is if warrants are used to do further investigation.

“The government has no business knowing such information.”

Part of my point is that *no one* knows information about you until and if you are investigated. Information is more informative than data, and requires analysis. As far as I’ve heard, there isn’t necessarily any analysis (except presumably when a person is suspicious). Databases *have* data, but it doesn’t follow that the government *knows* anything. Indeed, there is potential and scope for abuse, hence my reasoning to add an ammendment to the Constitution.

I appreciate the text of the 4th Ammendment, DA. I have to think about that more. My discussion here has to do with if collecting meta-data qualifies as an unreasonable search. My position right now is that meta-data is not in any way a search, so I see neither violation of the 4th ammendment, nor any violation of rights.

24

If there is something really odd going on, perhaps calling to the middle of nowhere in Pakistan 20 times a day, then the data can be investigated further, as with any investigation. My only concern is if warrants are used to do further investigation.

I don’t think anyone would have a problem if the government were reasonably selective about what data they gather. I can even see where the government would not want to make their filtering criteria public, but would rather take everything and filter what they want. If they were to do this, within a structure that kept the filterers segregated from others, and which destroyed the other data, that would be fine.

On warrants, I doubt the current system is adequate check, but I’d like to see some statistical summaries (e.g. total numbers of requests, total approved, number of people cover by such requests etc.) be made public.

Somewhat of an aside, but do your previous posts imply that it would be reasonable for a cop to note down the licence numbers of cars passing by him unless he has some reason more specific than that the data might prove useful someday?

25

I appreciate the text of the 4th Ammendment, DA. I have to think about that more. My discussion here has to do with if collecting meta-data qualifies as an unreasonable search. My position right now is that meta-data is not in any way a search, so I see neither violation of the 4th ammendment, nor any violation of rights.

Except that the metadata isn’t floating in thin air, to be collected by passers by. The government is using the threat of physical force to compel private companies to collect it and hand it over.

How is it not unreasonable search to compel Verizon to collect and hand over data on all its users? The 4th Amendment makes it very clear what kind of warrants can be issued: the kind where specific people’s property is searched based on probable cause. Not the kind where everyone must hand over everything without probable cause.

26

 I’ve heard of no evidence that anyone is looking for content and listening to everything you say on the phone. … there is not anything intrusive in the first place. That is, unless you imagine it like some FBI people sitting around literally listening to your conversations. Data is useless until someone processes it quite thoroughly, and that’s when your privacy may be violated. No one is listening…

Part of my point is that *no one* knows information about you until and if you are investigated. Information is more informative than data, and requires analysis. As far as I’ve heard, there isn’t necessarily any analysis (except presumably when a person is suspicious)…

CNET.com

NSA admits listening to U.S. phone calls without warrants

National Security Agency discloses in secret Capitol Hill briefing that thousands of analysts can listen to domestic phone calls. That authorization appears to extend to e-mail and text messages too.

 

The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls.

Rep. Jerrold Nadler, a New York Democrat, disclosed this week that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed “simply based on an analyst deciding that.”

If the NSA wants “to listen to the phone,” an analyst’s decision is sufficient, without any other legal authorization required, Nadler said he learned. “I was rather startled,” said Nadler, an attorney and congressman who serves on the House Judiciary committee.

Not only does this disclosure shed more light on how the NSA’s formidable eavesdropping apparatus works domestically it also suggests the Justice Department has secretly interpreted federal surveillance law to permit thousands of low-ranking analysts to eavesdrop on phone calls.

Because the same legal standards that apply to phone calls also apply to e-mail messages, text messages, and instant messages, Nadler’s disclosure indicates the NSA analysts could also access the contents of Internet communications without going before a court and seeking approval.

[…]

Sen. Dianne Feinstein (D-Calif.), the head of the Senate Intelligence committee, separately acknowledged this week that the agency’s analysts have the ability to access the “content of a call.”

27

I appreciate the text of the 4th Ammendment, DA. I have to think about that more. My discussion here has to do with if collecting meta-data qualifies as an unreasonable search. My position right now is that meta-data is not in any way a search, so I see neither violation of the 4th ammendment, nor any violation of rights.

Metadata is available in the form of meta-tags, which are keywords used to search for content.  The question to be answered is, what prompts the search?  If the keyword is terrorism, then any communication that uses that word arouses suspicion in those tasked with security.  When suspicion precedes the crime, the legitimate way not to trample on individual rights is to obtain a search warrent.  But again, ought not some link between a specific person and a specific crime be established prior to searching for incriminating evidence?  Are we all to be treated as persons of interest, justified only because crime exists??

 

"The right of the people to be secure in their persons, houses, papers, and effects , against unreasonable searches and seizures… "

 

Is a personal communication equilavent to a persons effects?  Papers certainly refer to hardcopy, but I believe effects also include content, or something like intellectual property.

28

Since “snail mail” is an anachronism, electronic communications, such as email, should be considered to take the same place. This means that email should be part of our personnal effects, privately enjoyed by the sender and recipient. Companies who share our electronic communications with third parties should not receive our business. The problem is that it seems that ALL of these companies have been sharing our email, texts, and even telephone conversations with the government and its contractors.

 

A government that snoops into our business is saying, “Trust me. I wont abuse your trust.” Anyone who has to ask for trust is not worthy of trust. Anyone or anything that wants your private communications is not worthy of trust. The US government, or any government, is not worthy of trust.

 

The collection of data is so vast, the potential for abuse is enormous. The potential has a way of quickly becomming the actual.

 

This is a time for action. Contact your congressman.

29

Saw Bill Moyer’s show on Domestic Surveillance on Sunday, and it’s worth a look…

 

" EDWARD SNOWDEN from The Guardian: Any analyst at any time can target anyone, any selector, anywhere. Where those communications will be picked up depends on the range of the sensor networks and the authorities that analyst is empowered with. Not all analysts have the ability to target everything. But I sitting at my desk certainly had the authorities to wiretap anyone from you or your accountant to a Federal judge to even the president if I had a personal e-mail.

BILL MOYERS : As of now, only Snowden fully understands his motives and the full extent of what he intends to reveal remains unknown. The White House insists snooping is a counter-weapon against terrorism, a necessary if unfortunate intrusion. General Keith Alexander, head of the NSA, told Congress this week that the agency’s surveillance had helped prevent dozens of attacks. A large majority of the public agrees that the spying is necessary, but others see it as an unprecedented infringement on our civil liberties, a massive threat to a free society."

 

– later in the show –

 

"BILL MOYERS : Let me play for you some of the video of what Edward Snowden told Glenn Greenwald of “The Guardian.”

EDWARD SNOWDEN from The Guardian: The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change. People will see in the media all of these disclosures. They’ll know the lengths that the government is going to grant themselves powers unilaterally to create greater control over American society and global society. But they won’t be willing to take the risks necessary to stand up and fight to change things to force their representatives to actually take a stand in their interests.

LAWRENCE LESSIG : Well, I think the thing he most fears is the most likely outcome. I think people have seen lots of crises, lots of scandals which we’ve not found a way to rise up and do anything about. Think about the Wall Street scandals which didn’t produce an uprising. There was the Occupy Wall Street movement which was very important, but it didn’t produce an uprising in ordinary people.

But part of the reason for that is I think ordinary people have lost the sense that there’s a reason to try to engage politically because in the end they know how the cards will be dealt. And the cards will be dealt not according to what makes sense or what people actually believe, but where the power is. And here the power is both the literal power of the most powerful security state in the history of the world and also the power of enormous interests to support and continue that state."

 

Here’s a link to the transcript of Bill Moyer’s show on Domestic Surveillance:

http://billmoyers.com/wp-content/themes/billmoyers/transcript-print.php?post=33429

30

EDWARD SNOWDEN from The Guardian: The greatest fear that I have regarding the outcome for America of these disclosures is that nothing will change. People will see in the media all of these disclosures. They’ll know the lengths that the government is going to grant themselves powers unilaterally to create greater control over American society and global society. But they won’t be willing to take the risks necessary to stand up and fight to change things to force their representatives to actually take a stand in their interests.

So true. Even if Snowden is faking this concern, the concern itself is warranted and on target.

Citizens will take their cue from intellectuals here. How the media paints this is going to decide how the public reacts. The media, in turn, mostly thinks that objectivity is presenting “both sides”. Since the establishment has closed ranks, with key Democrats and Republicans supporting the surveillance, I think it is a pretty good guess that nothing will change. The public seems to be against the program: I saw a poll where almost 50% said Snowden did the right thing.

Even some scholars from Cato published an op-ed in the Chicago Tribune in support of the program (and Binswanger’s brief supportive remark is already posted here). So, the intellectual support for the program seems pretty widespread.

Julian Sanchez, from Cato, published an excellent article in rebuttal to the Tribune op-ed by his Cato colleagues.

 

Good to see someone defending against government encroachment on rights (question begged here), but they seem to be a minority.

31

Julian Sanchez, from Cato, published an excellent article in rebuttal to the Tribune op-ed by his Cato colleagues.

Yes, this is worth reading, and I’m copying out a part that addresses my particular concern…

–

"On, then, to the constitutional question. Pilon and Epstein write: ‘The text of the Fourth Amendment grasps that essential trade-off [between security and liberty] by allowing searches, but not ‘unreasonable’ ones.’

 

This is true as far as it goes, but it’s important here to understand how this phrase was understood at the time of the Founding. There is no free-floating ‘reasonableness’ standard found in the common law of search and seizure in the Founding Era.  Rather, the phrase ‘unreasonable searches’ enters the American lexicon through the provision of the Massachusetts Constitution that served as a template for the Fourth Amendment.

 

That was penned by John Adams, who scholars believe was invoking the language of his great mentor James Otis, who had famously insisted that any statute authorizing general, non-particularized searches was ‘against common right and reason’ and therefore ‘void.’ In other words, ‘unreasonableness’ was not meant to invite the kind of ‘balancing test’ so beloved by the modern Supreme Court—though as technology presents novel problems, some amount of that is, perhaps, inevitable. Rather, ‘unreasonableness’ was specifically associated with the absence of particularity—of the kind exhibited by, for instance, an authority to indiscriminately collect all Americans’ phone records."

–

Very good article - thanks for posting it.

32

This is very concerning. I always suspected this, and now it is confirmed. The following is from a Q & A with Snowden today on the Guardian. http://www.guardian.co.uk/world/2013/jun/17/edward-snowden-nsa-files-whistleblower

      

1) Define in as much detail as you can what “direct access” means.

2) Can analysts listen to content of domestic calls without a warrant?

 

Snowden: 2) NSA likes to use “domestic” as a weasel word here for a number of reasons. The reality is that due to the FISA Amendments Act and its section 702 authorities, Americans’ communications are collected and viewed on a daily basis on the certification of an analyst rather than a warrant. They excuse this as “incidental” collection, but at the end of the day, someone at NSA still has the content of your communications. Even in the event of “warranted” intercept, it’s important to understand the intelligence community doesn’t always deal with what you would consider a “real” warrant like a Police department would have to, the “warrant” is more of a templated form they fill out and send to a reliable judge with a rubber stamp

 

When you say “someone at NSA still has the content of your communications” - what do you mean? Do you mean they have a record of it, or the actual content?

 

Snowden: Both. If I target for example an email address, for example under FAA 702, and that email address sent something to you, Joe America, the analyst gets it. All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time - and can be extended further with waivers rather than warrants.

33

As it relates to the excerpt I highlighted in post #31, here is the referred to template for the 4th Amendment of the US Constitution (taken from the Constitution of the Commonwealth of Massachusetts):

 

“Article XIV.  Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.”

https://malegislature.gov/laws/constitution

34

Data collection is actually very analogous to simple observation; reading this sentence right now is an act of data collection.  So the question of governmental eavesdropping is exactly that- do you have a right to privacy?

 

I think that, in a proper Capitalistic society, this wouldn’t be an issue; the government would only be allowed to pay attention to suspicious activity which, in such a society, I would be perfectly fine with.

Within such a society, suspicious activity would be like spontaneously deciding to dig a grave in your backyard. . . Hence the non-issue.

 

But since we don’t live in that society, I agree wholeheartedly with Nicky.

 

Let’s not pretend that we’re being watched over by our guardian angel, here; we’re being watched by an underhanded punk with a Napoleon complex.

35

Should warrants be public information? I am perplexed by this whole idea of a secret court. In warrants for wiretapping “terrorists”, wouldn’t that be considered defense related and properly a defense secret? What about warrants for wiretapping regular citizens, would this be public information, at least after the wire tapping is completed? If it is kept secret, how will anyone ensure objectivity?