US federal judge rules NSA phone program likely unconstitutional

[dmcheatw]

It's pretty clear that Snowden's leaks make the U.S. less safe and worse off diplomatically. That's not really even debatable.

What's debatable is whether what he did was justified given the way the NSA may be breaking the law and in the overall context of privacy rights.

just to point out, spekaking in generalities, whether the leaks made the U.S. "less safe" depends on time frame as well as who you think the enemy/ies are and how threatening you gauge them to be. Once the government gives someone a nice ass fucking just because it can, you can make an easy argument that terrorists are not what we really need to be worried about. If you want to debate about what's a greater threat to our way of life we can, but really the purpose of this post was just to highlight an important caveat to your first sentence above.

I believe in big (preferably smarter) government, but I'm much more terrified of my own government than terrorists. this "terrorism" thing is a new, and ultimately passing phenomenon. just like the cold war or alcohol prohibition. the fourth amendement, however, is a bedrock of what it means to be a U.S. citizen, and a reflection of the values our federal government and its populace. The fourth amendment is not just the highest law of the land that has been around for 250 years..it's also, in part, the culmination of what began with the magna carta in 1215(?), which for the first time ever a king admitted in writing that he didn't have nominal full, and complete control over all facets of government..

Ignorning the fourth amendment and the greater context of human civilization in order to POSSIBLY be better equipped to deal with a short term threat could be the most dangerous thing such an influential nation as ours could do. I'm pretty sure BDZ understands this argument but it needs to be said regardless.

 

[ONW]

Is it a crime to expose a crime? Would you consider Daniel Ellsberg a criminal for releasing the Pentagon Papers? I have little doubt that most reasonable people who look closely at these programs will find them unconstitutional. Snowden gave up everything, a hot girlfriend, a well paying job, life in paradise (Hawaii) to remain true to his conscience. I think that's incredibly admirable. What he did is to be admired, not demonized.

Come on man, he's living large on the Communist teat, he's a celebrity, he's humping every hot Russian chick possible, and he's going to make more money on the book he writes then he would have in a lifetime!

In all seriousness though, he committed a criminal act. Treason and the means to an end justification I'm still undecided about.

 

[dmcheatw]

I'm looking forward to seeing this play out in court. It really is pretty fascinating from a technical standpoint.

For example, you're looking at Gmail. And you're reading an email from your mistress and she's talking about your burning penis sickness. Then up pops some advertisement for some burning penis sickness cream. And you're like, fuck, that's kinda creepy, but gimme dat cream. You wonder... Hmmm, I don't know how cool it is that Google has my burning penis illness info or my mistress secret when they have so many employees. But fuck it, this cream is money it just saved my dick, so I'm cool with it.

Yeah, you signed up for Google and yeah, you agreed to some terms or whatever. But in those terms I don't see where Google has the right to call your wife and tell her of your activities. And even if it was fun to read about you, there's some tech in there to make the data anonymous and prevent workers from getting their jollies by reading about your exploits.

So the government needs to figure out if someone's going to blow up the white house. Or it happens, and they need to reconstruct how the hell it happened. And they're like, shit, wouldn't it be nice to collect a whole fuckload of info to track the internet age of terrorism. But they collect so much info, and so much of it is encrypted, gibberish, worthless, redundant etc., that on the whole it's pretty much useless. It's kind of like every black box on every airplane combined for every flight in the past 10 years. Did Steve bang a stewardess in the bathroom on flight #285 on June 10th 2007? Who the hell knows. Sure, every company and their mother is going to tell you that you can data mine the hell out of this giant blob of information and find out useful things, but unless you know what you're looking for, at best maybe you can identify trends. And maybe that has some value.

But where it's really valuable is when Mark does something really bad, and suddenly we're green light to investigate Mark, and his data lives somewhere [OP bold removed for clarity] and you can get at it. Maybe he sent an email to 3 more buddies that sounded suspicious. Maybe he told his family what he was up to. Maybe he has a following of psychos.

You could definitely argue this collection of essentially anonymous data - outside of the normal spy stuff of tapping foreign leader's phones or whatever - is legal as long as you use technology to protect the data prior to legal justification. I know this is the goal for some of these programs, and it's a big part of why I take issue with Snowden's attempt to paint a 1984 picture here. But in general it's just really interesting to see how outraged people are when all that's really changed is the context for your information being available to an entity, or the idea that the entity is a company instead of a government.

Anyway, should be a fun argument to make.

google has to ask and you give permission for this sort of thing to happen. you can stop it at any time by adjusting your control panel security settings, your google chrome security settings, stop using google products, or use a proxy (among other options) and go anon.. and google can't lock you up in cuba forever, either.

NSA doesn't give us a choice or offer any transparency or alternatives and the consequences are death or jail. so really apples to oranges. good post though...introduced some new ways of thinking for me.

 

[Deacon923]

Because the government is bound by the Constitution? I'm not a Constitutional scholar, but at first thought, it doesn't seem that it would matter HOW the data was obtained. It's simply not legal for the government to obtain it without probable cause.

Actually RJ is on to something. The rationale that the courts have used to allow this kind of warrantless data gathering is that once you willingly give the data to a third party ( ie google or your ISP) you no longer have a constitutionally protected expectation of privacy. They distinguish it from the US mail because the 4th amendment uses the word papers (i am simplifying).

A lot of people believe this distinction is specious and does not respect the intent of the founders or the spirit of the 4th amendment. Its a case of using too much literalism and a failure to adapt the constitution to modern communications technology.

Sent from my DROID RAZR using Tapatalk

 

[RacerDeac]

Actually RJ is on to something. The rationale that the courts have used to allow this kind of warrantless data gathering is that once you willingly give the data to a third party ( ie google or your ISP) you no longer have a constitutionally protected expectation of privacy. They distinguish it from the US mail because the 4th amendment uses the word papers (i am simplifying).

Yeah, but in that case, the courts have justified it period...doesn't matter whether it's taken by tapping Google's servers or purchased from Google. Ultimately, the question is whether the rationale you mention holds up. If it does hold up (as it has in the secret courts without any oversight), it matters little whether the NSA buys the data or just takes the data through their own methods. If the rationale doesn't hold up (this Federal judge doesn't seem to think it will), buying the data or taking the data should both be considered disallowed. The government is either allowed to have the data or not.

I think RJ's question is different from the issue you bring up regarding privacy.

Here's an interesting question for DC, Kitchin or other lawyers. Theoretically users of Google, Yahoo, etc., (and possibly the phone companies) have given their permission to sell browsing data and other information about you. If this is so, why would the government be different than any other entity who buys this data?

If the TOS/contract with the providers allows them to share or sell your information, why isn't the government just another customer as each customer has alredy given their approval to do so?

He's asking why, if the courts say the NSA can't collect this data, they can't simply buy it like any other company would buy data from ISP's or Google for marketing purposes. If the courts establish the right to privacy of this information, the implication RJ is making is that buying the data is somehow a legal loophole around being able to collect it.

 

[Deacon923]

Exactly.

Sent from my DROID RAZR using Tapatalk

 

[DCDeac]

I have to back up BSF on this. The collection is important because it enables use. Google (or a rogue Google employee) could use your personal information to embarrass you, blackmail you, maybe steal from you. If they did, you would have all kinds of rights to sue the shit out of Google and recover a billion dollars. Your rights against Google's treachery would be protected by the courts and the government.

The government's ability to use personal information against a citizen goes far beyond anything Google could ever begin to do. And even more critically, if the government does misuse the information, you are quite likely powerless to stop them. The government can wreck your life, put you in jail, send agents to raid your house, get your fired from your job - the list goes on.

The 4th amendment prohibition against general warrants was enacted specifically to prevent the authorities from going on fishing expeditions to collect information - data - that they could use against people previously unsuspected of any crime. The 4th amendment was intended to prevent the data collection from ever happening in the first place. In my opinion, there is no way to interpret the 4th amendment to allow the government to hoover up vast amounts of evidence and hold on to it "just in case".

There is a reason that the Germans have very strong digital privacy laws. They - at least the Eastern Germans - know exactly what it is like to live in a country run by secret police who are constantly putting together a dossier on every citizen just in case they need it one day.

I'm definitely not saying collection isn't important. But part of what I'm getting at is that "use" and "collection" are being confused in my opinion. For example, Snowden claims the government is exercising "tyranny in the form of social control and manipulation" - but all the evidence is simply collection.

Couple more things. First, Google HAS abused the data they have, they have tracked people illegally, and those people have NOT won billions of dollars. Instead Google has had to pay fines. Same with Microsoft. Same with Apple. The number of times one of these companies has abused your private data absolutely dwarfs the number of times the government has done so. Not for lack of effort, but due to capability. On the government side, these are relatively young programs with little real-world success.

Second, you have more power to defend yourself against the government in many cases than you do Google, because when you sign up for Google or Facebook or whatever, you sign away almost all of your rights as you click yes without reading the 128 "accept all conditions" dialogue. TOS's dictate that misuse, vaguely stated, forfeits all your rights. It states no content is yours once entered or altered by these resources. It says they may review content without legal requirement or basis. It states "opting out" is a feature, not a right. Those control panels mentioned below have no actual technical benefit to you, it's just a non-enforceable request you make that can be legally ignored. If the government uses records collected via these programs without due process or probable cause, you have NOT signed away all of your rights and you can argue such information inadmissible should the shit really hit the fan.

Here's a real world situation. We detected a criminal in the US and got a temporary IP address. He'd been using a computer there on Comcast and we tracked his IP - but not to an address. The process to extract retained data from Comcast, totally legally, took 4 days. By then he was gone, cops went to the house and found shell casings and evidence of drug packaging. Current retrieval times to locally held data would have been in the minutes instead of days.

So technically, it's extremely frustrating to know this data is out there and is legally available, but because it isn't collated, collected in a standard way, protected via a set of established rules, etc - you end up wasting massive amounts of time bouncing between different systems and authorities to obtain it. What if you knew, for a fact, that information about the Boston bomber could have been collected in time to prevent that attack because he was a suspect prior to the bombing. And that all this data collection already happens - it's just all over the place.

To me it's about access and use, not collection. This isn't the 50's with humans actively reading and listening during collection. New rules need to be in place. And to be honest, being the country the pretty much owns the internet, to me, should entitle us to some benefits that prevent harm against our country.

But there are TONS of improvements in use that could be done. Encryption is where it's at. It should be more open. It should be reviewed by public entities. There are lots of things that have been done wrong.

 

[RJKarl]

google has to ask and you give permission for this sort of thing to happen. you can stop it at any time by adjusting your control panel security settings, your google chrome security settings, stop using google products, or use a proxy (among other options) and go anon.. and google can't lock you up in cuba forever, either.

NSA doesn't give us a choice or offer any transparency or alternatives and the consequences are death or jail. so really apples to oranges. good post though...introduced some new ways of thinking for me.

As I've said many times, we need better laws and oversight. However, show me where an innocent person in America has actually had either of these outcomes occur from the NSA data collection - "the consequences are death or jail."

 

[bigdoublezero]

Ignorning the fourth amendment and the greater context of human civilization in order to POSSIBLY be better equipped to deal with a short term threat could be the most dangerous thing such an influential nation as ours could do. I'm pretty sure BDZ understands this argument but it needs to be said regardless.

The damage is not about terrorism. It's about global politics.

Most of these posts are way tl;dr for me to get into, especially because I don't care that much about the issue, but my point remains. Less safe. Diplomatically damaged. This is pretty well documented by smart and relatively disinterested publications. RJ's right in that it would have been better if the leaks hadn't been so ham-handed, but I doubt that would have been possible for "mega genius" Snowden.

Again, this comes down to whether folks think it's worth the affront to personal privacy, and that's a legit debate. Not sure where I stand. But I'm almost 100% certain that, like the drone issue, it's not going to matter in the long run. The genie's not going back in the bottle. So hopefully this new awareness of the NSA's capabilities at least leads to some greater transparency toward the relationship between tech companies and the government and some better awareness by the public and elected officials as we move forward in the information age.

 

[RacerDeac]

However, show me where an innocent person in America has actually had either of these outcomes occur from the NSA data collection - "the consequences are death or jail."

LOL. I'm not sure you understand the concept of civil rights. Once someone IS locked up or killed, it's a bit late to start protecting them from that potential outcome.

 

[Deacon923]

I'm definitely not saying collection isn't important. But part of what I'm getting at is that "use" and "collection" are being confused in my opinion. For example, Snowden claims the government is exercising "tyranny in the form of social control and manipulation" - but all the evidence is simply collection.

Couple more things. First, Google HAS abused the data they have, they have tracked people illegally, and those people have NOT won billions of dollars. Instead Google has had to pay fines. Same with Microsoft. Same with Apple. The number of times one of these companies has abused your private data absolutely dwarfs the number of times the government has done so. Not for lack of effort, but due to capability. On the government side, these are relatively young programs with little real-world success.

Second, you have more power to defend yourself against the government in many cases than you do Google, because when you sign up for Google or Facebook or whatever, you sign away almost all of your rights as you click yes without reading the 128 "accept all conditions" dialogue. TOS's dictate that misuse, vaguely stated, forfeits all your rights. It states no content is yours once entered or altered by these resources. It says they may review content without legal requirement or basis. It states "opting out" is a feature, not a right. Those control panels mentioned below have no actual technical benefit to you, it's just a non-enforceable request you make that can be legally ignored. If the government uses records collected via these programs without due process or probable cause, you have NOT signed away all of your rights and you can argue such information inadmissible should the shit really hit the fan.

Here's a real world situation. We detected a criminal in the US and got a temporary IP address. He'd been using a computer there on Comcast and we tracked his IP - but not to an address. The process to extract retained data from Comcast, totally legally, took 4 days. By then he was gone, cops went to the house and found shell casings and evidence of drug packaging. Current retrieval times to locally held data would have been in the minutes instead of days.

So technically, it's extremely frustrating to know this data is out there and is legally available, but because it isn't collated, collected in a standard way, protected via a set of established rules, etc - you end up wasting massive amounts of time bouncing between different systems and authorities to obtain it. What if you knew, for a fact, that information about the Boston bomber could have been collected in time to prevent that attack because he was a suspect prior to the bombing. And that all this data collection already happens - it's just all over the place.

To me it's about access and use, not collection. This isn't the 50's with humans actively reading and listening during collection. New rules need to be in place. And to be honest, being the country the pretty much owns the internet, to me, should entitle us to some benefits that prevent harm against our country.

But there are TONS of improvements in use that could be done. Encryption is where it's at. It should be more open. It should be reviewed by public entities. There are lots of things that have been done wrong.

I think you are confusing how private companies and government use and abuse data. Google's TOS do not allow Google to misuse data to commit criminal acts - fraud, identity theft, stalking, etc. It is not possible to contractually waive liability for criminal acts. If Google (or a rogue Googler) uses data in a way that is not permitted by the TOS, they are liable. Perhaps more importantly, when these cases become known, software companies lose credibility in the marketplace and so they have an incentive not to misuse data, or even use it permissibly but in unpopular ways.

Government actors, especially shadowy secret organizations with little accountability like the NSA, have no such incentives. If courts refuse to protect our rights to privacy, we have no power to object to what they do with our data.

As to the second part of your post regarding law enforcement tactics, I absolutely do not agree that the government needs to build a database of every citizen's digital life on the off chance one will turn out to be a bomber. You know, the old Ben Franklin quote about those who would give up liberty to get security will end up with neither? That. My chances of getting killed or injured by a terrorist are orders of magnitude lower than my chances of getting struck by lightning or hit by a meteor. I am not willing to give up my privacy rights to gain "protection" from such threats. Giving up our liberty to gain protection from such a tiny, tiny risk means the terrorists have won.

 

[RJKarl]

The damage is not about terrorism. It's about global politics.

Most of these posts are way tl;dr for me to get into, especially because I don't care that much about the issue, but my point remains. Less safe. Diplomatically damaged. This is pretty well documented by smart and relatively disinterested publications. RJ's right in that it would have been better if the leaks hadn't been so ham-handed, but I doubt that would have been possible for "mega genius" Snowden.

Again, this comes down to whether folks think it's worth the affront to personal privacy, and that's a legit debate. Not sure where I stand. But I'm almost 100% certain that, like the drone issue, it's not going to matter in the long run. The genie's not going back in the bottle. So hopefully this new awareness of the NSA's capabilities at least leads to some greater transparency toward the relationship between tech companies and the government and some better awareness by the public and elected officials as we move forward in the information age.

The idea here is until we can control the dissemination of information from gatherers like Google, Yahoo, phone companies, etc., we'll never be able to put a limit on it for the government. If this info is available for sale, the government will always be a purchaser.

We also need a non-partisan FISA court that also has a citizen's advocate. The current FISA Court is a rubber stamp. It should be at least as hard to get a FISA warrant as it is to get a warrant in W-S to wiretap Joe Blow.

On the other side, we have to bring wiretapping into the internet/mobile age. A single warrant should cover all devices for a person.

 

[DeacMan]

The issue about collection is not necessarily what is done with all that data today, but how it might be used in the future. The fact they stockpile all this information - most of which individuals themselves will not keep - could lead to all sorts of bad outcomes, manipulations and uses.

 

[bigdoublezero]

The issue about collection is not necessarily what is done with all that data today, but how it might be used in the future. The fact they stockpile all this information - most of which individuals themselves will not keep - could lead to all sorts of bad outcomes, manipulations and uses.

If you're freaked out about data collection, I have sad news for you.

 

[DeacMan]

No, you have no news. We all get the "facts".

 

[bigdoublezero]

What? That was rhetorical. Data collection is not going anywhere. It's going to permeate all facets of society, the economy, and -- yes -- the government, forever.

The silver lining with the Snowden stuff is that we can have a more intelligent outlook and debate about this stuff earlier in its development. Just sucks that it had to be via a massive dump of information that by and large damaged the U.S.

 

[RacerDeac]

The idea here is until we can control the dissemination of information from gatherers like Google, Yahoo, phone companies, etc., we'll never be able to put a limit on it for the government. If this info is available for sale, the government will always be a purchaser.

What about the 4th Amendment makes it legal for the gov't to purchase this data if it can't collect it on it's own?

 

[BobStackFan4Life]

Edward Snowden is a great American and a true patriot. My colleagues and I at the ACLU are proud to be his legal advisors. We are committed to assisting him on legal issues he may confront.

Thank goodness for patriots like him, who are willing to endure personal sacrifice to defend truths that we hold self-evident, but which too many Americans take for granted.

https://www.aclu.org/blog/national-security/edward-snowden-patriot

 

[bigdoublezero]

I'm a supporter of the ACLU in general, but I'm not sure that citing its opinion of Snowden is going to move the needle on the debate.

 

[BobStackFan4Life]

I'm a supporter of the ACLU in general, but I'm not sure that citing its opinion of Snowden is going to move the needle on the debate.

It won't. But it's good to see.