EFF Sues NSA, Justice Department, FBI

New submitter Jawnn writes "The Washington Post reports that the EFF has filed suit against the NSA in Federal Court in San Francisco, on behalf of multiple groups (court filing). Those groups include, 'Rights activists, church leaders and drug and gun rights advocates.' EFF Legal Director Cindy Cohn said, 'The First Amendment protects the freedom to associate and express political views as a group, but the NSA's mass, untargeted collection of Americans' phone records violates that right by giving the government a dramatically detailed picture into our associational ties. Who we call, how often we call them, and how long we speak shows the government what groups we belong to or associate with, which political issues concern us, and our religious affiliation. Exposing this information – especially in a massive, untargeted way over a long period of time – violates the Constitution and the basic First Amendment tests that have been in place for over 50 years.' Apparently, not everyone out there is believing the 'If you have nothing to hide' excuses being offered up from various government quarters."

Comments

good

[Budgreen]

we need even more people doing this. .

Re:good

[TheNastyInThePasty]

This has already been settled in court. If you can't prove that you were harmed by a secret program, you don't have standing to sue. (Regardless of the fact that you can never prove that you were harmed because, you know, it's a secret)

Re:good

[Baloroth]

But it's not a secret, not anymore, so it hasn't been settled. Since we now know the program exists, and have proof that it exists, the case takes on a whole different aspect (namely, whether metadata collection infringes the various rights granted in the various cited amendments.)

Re:good

[Mitreya]

If you can't prove that you were harmed by a secret program, you don't have standing to sue.

Well, if we have evidence that ALL (meta)calls are being monitored, then that seems like anyone should be able to prove they were harmed.

Re:good

[cod3r_]

NSA just going to find dirt on anyone who tries to do it and put us all in jail..

Re:good

[kilfarsnar]

This has already been settled in court. If you can't prove that you were harmed by a secret program, you don't have standing to sue. (Regardless of the fact that you can never prove that you were harmed because, you know, it's a secret)

Precedent has been set, yes. But the ongoing lawsuit Hedges v. Obama may provide a counter precedent. Hedges cannot show he has been harmed by the NDAA of 2012, but he can show that he could be. It will be interesting to see how that plays out. So far he has been successful, but the government is appealing.

http://en.wikipedia.org/wiki/Hedges_v._Obama

Re:good

[Anonymous Coward]

I am incapable of understanding how its having been a secret is not enough to prove that it is illegal. If it wasn't, there would be no reason to keep it secret because no one would oppose it.

The whole idea of "secret courts" is, in and of itself, ludicrous. Keeping "national security" information from the nation's public whose security is at stake ensures that only those who want to and can do harm will get the information.

Re:good

[CrimsonAvenger]

If you can't prove that you were harmed by a secret program, you don't have standing to sue.

Well, if we have evidence that ALL (meta)calls are being monitored, then that seems like anyone should be able to prove they were harmed.

Okay, so legally, how were YOU harmed by this? Be specific, generalities won't get you far in court.

Re:good

[erroneus]

We need not only people doing this, but we need to draw national and international attention to this. If they start pulling this "national security" excuse the way they have been for years and years (decades has it been? yeah... since Bush's first term and before!) the world will be watching. Stock in US companies will decline until the government begins to answer for its crimes. Money is the only way to see any sort of resolution to the problem. And no doubt the first resolutions will be "yes, of course we will stop doing this... the things you know about... but we won't stop doing the things you didn't know about and we will quietly change the things you knew about so they are now different enough that they are no longer the same thing." They won't "stop" and they won't reform. They'll wriggle and dodge. Then they will get exposed again. It won't be over the first time.

The cries of the people will not bring results. It will be the cries of business and speculators/investors/bankers which will be heard. I don't like the way the system currently works, but if it can be somehow used to make some change, it's good. It's not ideal and we should have something better. But things have to change and the sooner, the better. But more than that, we need some constitutional amendments and/or laws which add specific consequences to government players who violate the constitution. That stuff just can't keep going on.

Re:good

[TheNastyInThePasty]

According to the government, it's still a secret program. If something becomes public it does not remove its security designation.

Re:good

[spire3661]

This is a very wrong precedent. ANY US CITIZEN has standing against his government acting this way. TO tell me I have no standing while they blatantly and with malice ignore the the 4th is absolute bullshit. The instant they broke the law, I became an injured party. Ignoring the 4th is breaking the law, no matter how 'legal' you make it.

Re:good

[jcr]

The whole idea of "secret courts" is, in and of itself, ludicrous.

And unconstitutional.

-jcr

Re:good

[spire3661]

I am the government, it acts in OUR NAME. I am harmed when my agent acts contrary to the rules we have set forth for it.

Re:good

[hairyfeet]

Why? The state will simply use the "mother may i" word of the day, national security, and it'll all go poof!

The simple fact of the matter, which so many refuse to accept, is this: you can NOT fix a corrupted system by working WITHIN that system...why? Because its corrupted silly! It would be like saying if you played three card monty enough times with the hustler on the corner you would come out ahead. in reality you can't win because if it looks like you have a shot they will just change the rules on you, just that easy.

So I'd wish them luck but all they are doing is pissing money down a rathole, I have a better chance of winning the powerball than they do of winning against the fed over spying, or did everyone forget the immunity for the telecos that the administration supported and got when it looked like their dirty little secrets would come out? the absolute best case scenario would be another Scooter Libby, the fed puts up a scapegoat and gives them a slap on the wrist and the MSM buries the story, game over. More likely they won't even get that, the judges will cockblock them with some catch-22 like "You can't bring a case unless you can prove you were being spied upon...which you can't prove because we won't give you discovery or force them to give you the evidence that shows it was you being spied upon" and again, game over.

Sadly all we can do is grab as much as we can for ourselves and wait for the whole rotten mess to collapse, which with the jobs being sent overseas, 2 wars, and a fed that is printing money almost as fast as Zimbabwe? I predict it won't last another 20 years. This is why all empires fall, they become too nasty and corrupt until the whole rotten mess can't be sustained and it all falls down.

Re:good

[whoever57]

According to the government, it's still a secret program. If something becomes public it does not remove its security designation.

The government can claim that black is white also, but it doesn't make it true. The government has to convince the court that the plain meaning of the word "secret" doesn't apply. Of course, with the Roberts court, the government has a high probablility of doing just that.

Question: how do you get promoted as a judge? By tending to favor people who sue the government or by tending to favor the very people who make appointments to judicial positions?

Re:good

[CrimsonAvenger]

Okay, now that we have the high-order generalities out of the way, can you provide some specifics?

Re:good

[ColdWetDog]

Tightening the tin foil even harder hurts.

Even worse, the foil rips and I have to get a new one. This gets expensive.

Re:good

[ganjadude]

mental anguish

Re:good

[spire3661]

Mass surveilling the contacts, connections and communications of every U.S citizen is fundamentally opposed to the 4th amendment. This is a serious and immediate threat to the The People and the road to tyranny. Any U.S. citizen should have standing to question and demand the end of these programs.

Re:good

[Bengie]

Right to privacy is no less important than right to life. So, if someone took away your life, what kind of harm would you have taken? Same difference.

Before you counter with "you just compared someone dying to snooping on your phone calls", well, show me the math to prove that one is less important. As far as I can see, they're both innate rights.

Again, prove that they're are not equal, using scientific method. Have fun. Until then, we can continue to assume that they're are both as damaging.

Hint: This is a philosophical issue, so the notion of "damage" is unknown and cannot be applied. Example: Someone kills me. How much harm have they caused me? None, I'm dead. I have no sense of harm. Someone infringes on my right to privacy, how much harm? Probably infinitely more than if they killed me.

I prefer to have neither rights infringed

Re:good

[Jane Q. Public]

"The simple fact of the matter, which so many refuse to accept, is this: you can NOT fix a corrupted system by working WITHIN that system...why? Because its corrupted silly!"

That's an assumption, not a statement of fact. If it were strictly true, then every government, everywhere, would simply slowly decline until the next revolution. I prefer to believe that the damage is not too deeply rooted to fix.

Re:good

[Anonymous Coward]

How about what all this costs the taxpayer? Each and every one American is being harmed by their money being wasted on this and other programs like it. The average American's quality of life can be much higher...

Re:good

[captain_nifty]

"The simple fact of the matter, which so many refuse to accept, is this: you can NOT fix a corrupted system by working WITHIN that system...why? Because its corrupted silly!"

That's an assumption, not a statement of fact. If it were strictly true, then every government, everywhere, would simply slowly decline until the next revolution. I prefer to believe that the damage is not too deeply rooted to fix.

That sounds like an apt summary of history of world governments.

Re:good

[cold fjord]

Since the government didn't call any witnesses or file any documents, essentially offering no real defense, it is easy to get the impression that they are throwing the case, as they have in other cases. Looks like community organizing going on from within the government again.

....also noting that the United States government "did not call any witnesses, submit any documentary evidence or file any declarations" in the case, and that "the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021," putting them at risk.[38]

Based on the merits of the case I doubt they would succeed if the government had really chosen to defend since the plaintiffs only really offer hypotheticals for harm, and the courts generally dislike those. They also seem to be trying to establish a right to directly communicate with terrorist groups. Yet another subtle bit of lawfare.

Re:good

[cold fjord]

The FISA court isn't a secret court. It is a court that handles secrets. The main purpose of the court is to handle warrant requests, which is a one sided process in other courts as well, and done in confidence.

Re:good

[cold fjord]

The whole idea of "secret courts" is, in and of itself, ludicrous. Keeping "national security" information from the nation's public whose security is at stake ensures that only those who want to and can do harm will get the information.

I see. Will you and 10,000,000 other Americans be the ones we trust this week with the nuclear launch codes? Do you and the other 10,000,000 promise to keep them secret and out of the hands of the Chinese?

Next week you and that same 10,000,000 people are in the rotation to keep the secret list of which Russian and Chinese spies the FBI will be tracking, and who the informants are. Do you and the other 10,000,000 promise to keep them secret and out of the hands of the Chinese and Russians?

You aren't really thinking this through in any real way. Either that or you are trolling. I hate to use the word, but really, that is stupid.

Re:good

[sjames]

They drain tax money to fund all of this, so firstly, let's see if they care to pay for it out of their own pockets.

Re:good

[hairyfeet]

That is why it always amazes me that we get these people like the above, who think they can write their congressman and wave their little signs and anybody in power will give a wet fart about what they think when the sad reality is that its just like Jessie Ventura said. He said "Its just like pro wrestling, you have your face and your heel, you have the topics designed to get heat from the crowds, and when the camera is off they are having dinner together with the lobbyist and laughing their asses off about the whole game".

I have always been a VERY firm believer in that old saying "If you want to know the future, look to the past" and over 3000 years of recorded history shows the same pattern, country is formed, country becomes powerful, rich rig the game, country becomes corrupted, government sours, government falls. wash rinse repeat. Just look at how the top 1% now control over 74% of the wealth of the ENTIRE country, that means for every dollar the 99% have to get by on a lousy 26c and that number gets worse every year.

The ONLY reason you don't have the poor rioting and having their own Arab Spring is the bread and circuses provided by the New Deal safety nets but if its one thing we have seen its that the rich are too fucking greedy to have ANY common sense so sooner or later they will end up cutting one program too many in their infinite greed and the whole thing will come tumbling down.

But anybody who thinks their little sign making and voting drives is gonna change shit is just delusional, as the ONLY ones you are allowed to vote for are frankly the ones that don't matter, meanwhile no matter who is POTUS Goldman Sachs controls the fed, the same spooks control the spy programs, the machines doesn't change, just the figureheads shown to the public and even those know that when they are "defeated" they'll have cushy jobs for life as lobbyists, I mean why do you think we haven't had any real investigations since AbScam in the 80s?

Re:good

[0111 1110]

That's an assumption, not a statement of fact. If it were strictly true, then every government, everywhere, would simply slowly decline until the next revolution.

Well that nearly always seems to be the case. The law of entropy applied to governments. And even a revolution is no guarantee of stopping the decline. See Egypt. Maybe the USSR was a rare exception since IIRC there was no actual civil war before the change. Even if it is not impossible the odds are not good.

Re:good

[cffrost]

[...] various rights granted in the various cited amendments [...]

Protected under those various amendments; enumerated in those various amendments — but most certainly not granted in those various amendments. This is neither pedanticism nor an attempt to bust your chops, but rather a crucial distinction regarding the origin of those rights, and ultimately, who's really meant to be in charge of this country. If I recall correctly, some of Constitution's framers were opposed to having a "bill of rights" at all due this distinction.

Re:good

[cffrost]

Precedent has been set, yes.

The most depressing aspect to me is how the judicial branch has failed to protect us from repeated attacks by the executive and legislative branches. It only takes one weak-kneed judge and a deferential Supreme Court and the precedent is set. Only one case in 10,000 has to succeed, and eventually all rights are riddled by holes and the excessive deference to precedent.

If rights are at stake, then precedence should count for nothing.

Apparently. someone accidentally hit -1 Overrated instead of +1 Underrated.

Re:good

[Jane Q. Public]

"That is why it always amazes me that we get these people like the above, who think they can write their congressman and wave their little signs and anybody in power will give a wet fart about what they think when the sad reality is that its just like Jessie Ventura said."

That is a mischaracterization of what I wrote. I did not state or even imply that it would be easy. I simply think that it may be fixable without resorting to a full-blown revolution... which carries its own dangers. Very few revolutions have actually resulted in things being BETTER than before. Just ask the French.

Re:good

[cffrost]

I prefer to believe that the damage is not too deeply rooted to fix.

Is that because you believe it's more likely to be the case, or because the alternative is too upsetting a prospect to live with?

Re:good

[hairyfeet]

Revolutions, like any major shift, have to be looked at over the LONG term, not the short.Sure if you ONLY looked at the reign of terror immediately after? You'd say it was a nightmare...yet how many starved under the nobles? how many raped? Murdered? i think if you look at a century or two before the revolution you'd see what came about was a good thing, it just takes time.

But I'm sorry there is NO way short of revolution to bring change here, because the same 1% you'd be against also own the media and are in bed with the government. Look at how the Manning dump had revelations of backdoor dealing, even PMCs selling children for sex slaves to get better deals while the USA gov covered it up, but what did we hear from the MSM? "ZOMFG Assange is an asshole, we should be sending him to teh gitmo ZOMFG!"

So I'm sorry but it simply cannot work with today's technology, it just can't. If Gandhi were here in the USA and tried the non violent revolution you'd have the MSM running "stories" like "Did Gandhi pay an underage girl to have sex with another for his amusement?" and "Is Gandhi secretly covering for drug dealing relatives?" and then frankly it wouldn't matter WHAT he said, because nobody would hear him, they'd be too busy being distracted by the talking heads. No intent to Godwin but Stalin and Hitler couldn't even DREAM of the power of television and the MSM as a propaganda weapon, with it you can get people to sign up for bogus wars, pay attention to bullshit instead of the dirt,hell look at Snowden, sure a few governments are pissed but what is ALL the talking heads blathering on about? What country he'll end up at. NOBODY is saying shit about WHAT he leaked, hell the MSM seems to have a "Oh the NSA is watching everyone? Big deal" and the reason for that is obvious, because the military industrial complex, the MSM, and government are one and the same, all owned by the same circles of uberrich and they certainly aren't gonna turn on each other.

If you want to wave your little banner in the "free speech zone" 5 miles away from the cameras? Go right ahead, nobody is gonna see or hear you. But mark my words you get ANY real traction and then suddenly the nightly news will be filled with the allegations that you are a dopehead pedo. hey they didn't say it was true, only there were allegations,right?

Re:good

[Bob the Super Hamste]

I don't think is is a Roberts court thing as there has been a pretty steady increase in the power of government granted by various courts.

Re:good

[Jane Q. Public]

Neither one. It's because I know what a problem a revolution would be.

Re:good

[someSnarkyBastard]

Citation please?

Re:good

[kermidge]

Or...

We're already in jail. Now we're just negotiating terms with our jailors.

Re:good

[kermidge]

"free speech zone"

My mind gagged when I first heard of the thing. It's not that it was a needed clue; I took it as a clincher nail, is all. That something so basic as protest was now to be sandboxed....

Reading what you wrote earlier, on the natural progression of governments, I mused that a revolution in the traditional sense might not happen or be needed. The specific issue might not matter, but whatever it will be would result in a withdrawal of support, an ignoring of 'the government'; after the national government becomes sidelined, whether or not it thoroughly collapses, the DoD would step up and impose sufficient martial law to preserve interstate commerce - ports, refineries, rails and roads to keep fuel, food, and goods flowing. There's also the matter of what the various states might do. What happens makes a good guessing game. Nice plot for a novel somewhere in there, too, I think.

Re:good

[hairyfeet]

Its the power of propaganda dude, out of sight out of mind. Also for any change to happen you have to have someone lead the charge and they'll have "anonymous accusations" of being a pedo and a junkie which the talking heads will pound into the populace until just like Assange it doesn't matter WHAT the person has to say or the evidence they may have because the MSM would make sure the public never heard of it, only of the "rape" that was so good the victim went and bought him breakfast in bed while he slept the sleep of the well fucked and then woke him up for another "rape" before he had to go in for work.

You really need to watch this video and prepare to be shocked at how many plays from the despot playbook are being done here right now, places where torture is allowed without the rule of law, systematic intimidation of the populace, false flags and the hyping of even minor threats, the same moves that have been used by despots since the time of Lenin are being used here now. as a final note the girl who gave the lecture? She is on the watchlist for daring to talk about what rights you have under the constitution.

Welcome to the USSA comrade, where even talking about the constitution can earn you a file.

Re:good

[Rakarra]

Precedent has been set, yes. But the ongoing lawsuit Hedges v. Obama may provide a counter precedent.

That would be interesting, but the Supreme Court recement the precedent a month ago in Hollingsworth v. Perry that those without standing cannot sue.

Bravo EFF

[Cornwallis]

Again. Go to their site - eff.org - and donate.

Re:Bravo EFF

[SOOPRcow]

But then the government will know who I associate with!

Re:Bravo EFF

[Salgak1]

Like Sprint. . . .they ALREADY know your Friends and Family. . .

Re:Bravo EFF

[the eric conspiracy]

I wonder when Paypal will stop processing donations to the EFF.

Re:Bravo EFF

[stewsters]

Then go here to launder your money:

https://www.humblebundle.com/

And give 100% to the EFF. You get the XKCD book too.

Re:Bravo EFF

[CanHasDIY]

Fuck that, how do I sign on for the class-action?

Re:Bravo EFF

[stanlyb]

So, you have one more reason to donate, which will cause one more reason to donate, and then only the sky is the limit.

Re:Bravo EFF

[Mitreya]

I wonder when Paypal will stop processing donations to the EFF.

Heh, PayPal may stop processing donations (or, rather freeze donations - they'll still take the donations) just because they want the money. It's not like they are regulated.

A more interesting question is when will Mastercard/Visa start blocking EFF? I seem to recall that they did that once against Wikileaks after a few passionate speeches by senators.

Re:Bravo EFF

[Sarten-X]

A more interesting question is when will Mastercard/Visa start blocking EFF? I seem to recall that they did that once against Wikileaks after a few passionate speeches by senators.

Probably never. While WikiLeaks was quite happy to ignore US law in its "protests", the EFF has danced happily within the realm of legality for its muckraking. Sure, they annoy politicians, but they do so while staying within the law. They're a champion of freedom that everybody can publicly support... and if one politician ever attacks them, his opponent will enjoy the boost in public support.

Re:Bravo EFF

[unixisc]

The DHS will finally have RMS in its crosshairs. Alien vs Predator...

Re:Bravo EFF

[interkin3tic]

The EFF just started taking bitcoins again. I hear governments hate bitcoins. At worst, they'd probably assume you were buying guns and drugs from the EFF and dodging taxes while doing it. THEN when you revealed that you weren't, the government would be so embarassed they'd probably leave you alone.

Re:Bravo EFF

[SailorSpork]

Good point.

...aaaaaaand done.

Re:Bravo EFF

[some old guy]

Again. Go to their site - eff.org - and donate.

I just did. They are still taking PayPal, and I don't give a rat's arse what alphabet agency puts me on their little watch list. It was time to put some money where my mouth is.

It's time to take a stand, people.

Re:Bravo EFF

[steelfood]

What makes you think the FBI can't just issue a NSL against these people and get all the "metadata" they need to establish association? Or that they haven't already?

I like getting "thank-you gifts", but I rather donate to the EFF directly than screw a bunch of authors over by getting their books for free. If I want the humble bundle, I'll buy it separately.

Re:Bravo EFF

[cbhacking]

Fine, pay $200 for the Humble Bundle (it's not "free", it's "pay what you want") and donate 90% (or whatever portion you feel is appropriate) to the EFF. It's still a good cause to support (both DRM-free content and the EFF, for that matter).

Re:Bravo EFF

[imuffin]

And exactly what law has Wikileaks broken?

Re:Bravo EFF

[Proteus]

Not only that, but EFF is very clearly a legally-formed US organization under which all of its US activities are run. WikiLeaks was, for payment purposes, a foreign entity.

EFF could very easily sue the pants off a provider that acted to suppress payments based on their 1st Amendment protections. (Incidentally, that the EFF has 1st Amendment protection is the upside of the SCOTUS ruling that corporations are entitled to rights reserved to "people").

Re:Bravo EFF

[sootman]

Thanks for the reminder. Here's another -- multipliers aren't just for video games. See if your company does donation matching -- the EFF is a 501(c)(3) nonprofit.

Re:Bravo EFF

[core_tripper]

You can also pay with Bitcoin.
EFF donate

Re:Bravo EFF

[jma05]

Donate via Humble Bundle then?

Re:Bravo EFF

[sFurbo]

How do you screw somebody over by taking something they willingly give you?

Re:Bravo EFF

[someSnarkyBastard]

Which one is which? /me ducks

Re:Bravo EFF

[Rakarra]

It's not easy to see how or if a foreign organization that does no business in the US can really violate US law, but if they were located in the US, leaking top secret documents is a crime.

Re: Bravo EFF

[imuffin]

Wikileaks didn't leak top secret docs. Bradley Manning did.

Wikileaks just published them. The 1st amendment guarantees the right to do that.

Keep in mind, the NY times, for example, reported a lot of this info, too. No one is accusing them of having committed a crime.

I hear drones flying by now!

[peter303]

Not nice to fool around with spy agencies.

Re:I hear drones flying by now!

[Andy_R]

Govt. drones is if they strike you down, you become more powerful than they can possibly imagine.

Dead too, of course, but imagine the publicity!

Re:I hear drones flying by now!

[Rockoon]

Dead too, of course, but imagine the publicity!

Judging by what passes for "news" these days, and how so trivially the justice department was able to get away with wiretapping reporters...

fourth amendment vs. first amendment

[noh8rz10]

my take on this? it's more of a fourth amendment issue than a first amendment issue. i would push both probably, but I understand why one needs to choose a primary target. i guess an open question is, how would you rank order the amendments in terms of importance?

Re:fourth amendment vs. first amendment

[Talderas]

They are all of equal importance.

However to answer your question, you rank their importance by which one appears to be most violated and easy to attack the culprit with.

Re:fourth amendment vs. first amendment

[kilfarsnar]

my take on this? it's more of a fourth amendment issue than a first amendment issue. i would push both probably, but I understand why one needs to choose a primary target. i guess an open question is, how would you rank order the amendments in terms of importance?

I'm going for at least a 15-way tie.

Re:fourth amendment vs. first amendment

[stanlyb]

But First is bigger than Fourth....it is counterintuitive, but nevertheless true.

Re:fourth amendment vs. first amendment

[Sarten-X]

The fourth amendment's applicability is only certain in the minds of privacy advocates. Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches or target someone specifically without a good enough reason to convince a judge. The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

On the other hand, the first amendment is a much easier fight. The leaked information shows fairly well that the snooping (or at least its analysis) was targeted before any crime was committed. That means that the NSA's prejudiced against particular groups, and that's within spitting distance of a first-amendment violation.

After showing that some instances violate the first amendment, it's also an easier fight to argue that any wide-spread persistent snooping program is too easily also a violation. It's a similar tactic to the argument that no separate racially-segregated schools can be equal. Then once the first amendment has been invoked to protect people's metadata as free speech, then the fourth can be brought in to argue that any snooping of metadata must be approved by a warrant beforehand.

That also puts privacy in a much stronger place in the long run. By going after the first amendment protection, it can be argued that any aspect of a person's social life is a protected expression (within the limits usually invoked, like prohibiting murder as a form of protest), so that prohibits the government from seeking something the public knows (like a vehicle's whereabouts).

If successful, it could reconcile the public's love of sharing information with the hatred of the government learning that information.

Re:fourth amendment vs. first amendment

[Richy_T]

I would say the 9th is probably the most important and most overlooked.

Re:fourth amendment vs. first amendment

[gandhi_2]

here's the basic premise in the founding of the enlightenment model US (boiled down):
rights were given to you by your creator, not by your government.
your government didn't give them to so, they can't take them away.

if any right is allowed to be redefined as a privilege, or if it is re-cast as something "given" to you by a government then all rights can be redefined or recast. and if they are redefined, they can be taken away arbitrarilly. so they are all equally important. if you want to keep any of your rights then you must be pro-gun, skateboarding isn't a crime, don't spy on us, free speach even if i don't like it, punk rock anarchist. anything less is just a slow slide into slavery.

god knows we have too many people who only care about the rights they feel like using. conservative and liberal.

Re:fourth amendment vs. first amendment

[Anonymous Coward]

Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches or target someone specifically without a good enough reason to convince a judge. The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

The reason they take that stance is simply so they can violate people's rights with impunity as long as the violations are not deemed to be 'unreasonable.' Not new, but still pathetic nonetheless. The fourth amendment says no such thing, and no intelligent person would say that collecting data on nearly all Americans in an effort to stop the terrorist bogeyman is even close to reasonable; they would say it's a disgusting practice created by a freedom-hating government. The impact is unreasonable.

Re:fourth amendment vs. first amendment

[jcr]

The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect

Nope. It's billions of counts of illegal wiretapping against people who are not suspects. That's why it's a crime.

-jcr

Re:fourth amendment vs. first amendment

[dkleinsc]

And then there's this argument: Rights aren't real if they can be taken away from you arbitrarily for no crime whatsoever.

George Carlin rightfully references Japanese-American internment as proof that rights in America are a fiction.

Re:fourth amendment vs. first amendment

[Hatta]

The fourth amendment's applicability is only certain in the minds of privacy advocates. Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches

That "legal" interpretation is the one that exists only in the minds of certain government lawyers. The 4th amendment is unequivocal. No warrants shall issue without specifically describing the places to be searched or the things to be seized. Generalized surveillance can never comply with this restriction.

The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

That's also blatantly unconstitutional. If you don't have probable cause to believe the person you want is in my house, you don't get to search my house.

The "legal" arguments you are putting forth here are incompatible with the actual text of the Constitution. This needs to stop.

Re:fourth amendment vs. first amendment

[David_Hart]

"The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable."

No, it's more like tracking your car with a GPS everywhere you go.

Going door-to-door doesn't generate any data that is stored for future use and says nothing about who you talk to or associate with.

Going door-to-door would be more like being phoned and recording whether you picked up or not (door answered?) and the phone number dialed (your address).

Re:fourth amendment vs. first amendment

[Bengie]

The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect

Forgot to add "and forcefully entering your house"

Re:fourth amendment vs. first amendment

[vux984]

Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches or target someone specifically without a good enough reason to convince a judge.

So it would be legal to search our homes with tiny insect drones as long as they search all our homes?

It doesn't disrupt our lives, and its not targeting someone specifically.

The argument really shouldn't be "is that legal?", it should be "that's not what we as a society want, so make it illegal and amend the constitution to do it if we have to."

This is -why- the constitution is a "living document"; we're supposed to be able to fix it when a hole like this shows up. We shouldn't have to make difficult reaching arguments about how a surveillance state is a 1st or 4th amendment violation.

Re:fourth amendment vs. first amendment

[Artifakt]

I know IP rights are a huge focus on Slashdot, so I almost hate to drag them in here, (but I'm going to anyway because almost only counts for horseshoes and nukes). When the government started allowing copyright to be awarded for "Life +" years, that was recasting a right as something given by the government. After all, people have a natural, physical right to copy, but they can't exercise that right one second after they die, let alone 70 years. That extra time is a recasting of where the whole right comes from. And if government creates the right to copy out of nothing, it can change it however it wants. It can make copyright run for life plus 3,497 years and 19 days, or it can turn around when it wants and make copyright run for only Four years and all royalties go to the government after that. All the rights holders who think they got a good deal with copyright extension may be unpleasantly shocked one day when the government needs more money.
            I'd also argue that changing copyright from a definite period (like 14 years + one 14 year renewal under specific terms) to 'life' fits what you are talking about as a redefinition, although I'm not as equally sure on just how you mean that. Thats one reason I tend to drag IP law into constitutional discussions, because I think there are multiple ways the law has been used to transfer your natural rights and mine to the government, and the sheer, overwhelming, multiplicity of methods show just what kind of attacks some people are willing to perform on the constitution. If you imagine a law about search and seizure that redefines where the source of all property rights originates, and that simultaniously goes after the idea that travel or association are natural rights of man, and even goes after the normal definitions of what words such as citizen, human, and religious all mean, just to make all property siezable on government demand without even a court order, you get a horrible, abominal law, and yet you also get something that doesn't take any more bends and twists than have been applied to intellectual property.

Re:fourth amendment vs. first amendment

[Hatta]

And Carlin's right. There is no creator that endows us with rights. Rights are fiction, but they are a useful fiction.

Consider what happens if we take the other position and assume that rights only exist as granted by the state. It immediately follows that anything the state does is OK, as long as it is legal. If the government passes a law that calls for execution of every jew, there's nothing wrong with that. The jews were breaking the law by being jewish, they don't have any right to be jewish except as granted by their government.

We know this is wrong. So we pretend that rights exist, since the alternative is too horrible to consider.

Re:fourth amendment vs. first amendment

[RoknrolZombie]

While I agree with you completely, changing the Constitution is only good if the people that are supposed to be following it are actually following it.

It's like the feigned surprise of the other global powers when they discovered that we were listening to them. They were doing the same thing, but had to pretend to be surprised lest their own citizens discover how deeply rooted their own spying programs are. These assholes make a bunch of rules and regulations that look and seem reasonable to normal people, and as long as they continue to pretend that they're following the rules the public doesn't know anything about it. The "rules" are only there to make us happy while we don't know that they're being broken. THAT is what needs to change (and honestly, I doubt it will until the population gets a LOT more educated). It's not that the rules need to exist because they already do...it's that there's no oversight and no recourse for normal people. Any oversight committees immediately get jumped on by the special interests and their oversight becomes undersight really damned quickly.

Re:fourth amendment vs. first amendment

[TheRealMindChild]

Like driving

Re:fourth amendment vs. first amendment

[hawguy]

The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect

Forgot to add "and forcefully entering your house"

Well, not exactly - since they generally don't leave any damage or even any sign that they've been looking at your data, perhaps a better analogy would be "and they have agreements with every home builder and landlord in the country to set up an invisible secret door that agents can use to enter your home any time they want and have a look around. As far as you know, only the NSA has the secret key to the secret door, but since there's so much secrecy around it, no one knows if any of those secret doors have been breached by criminals (and even if someone does know, they can't legally tell you "Oh hey, I saw a thief entering your house through the secret door that you don't know about")"

Re:fourth amendment vs. first amendment

[perceptual.cyclotron]

Though I'm not an American, I think there's a strong case for the not-oft-discussed 9th Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

i.e., the constitution guarantees you certain rights, but just because it isn't listed in there doesn't mean it isn't your right – and I'd imagine most people, given the option, would choose to retain the right to privacy.

Of course it's not at all clear how one is supposed to go about retaining said rights in practice – but is worth remembering that your nation was founded with the explicit caveat that the constitution only places specific guarantees on your rights, and not boundaries.

Re:fourth amendment vs. first amendment

[Fesh]

Ad hominem.

Re:fourth amendment vs. first amendment

[greg1104]

But why chase after a complicated case involving an obscure amendment when there's a simple one available? Americans generally understand that political speech is protected by the 1st amendment. Point out that monitoring makes that impossible, and you're done, in a way that's very easy to explain to people--and therefore rally support around.

Re:fourth amendment vs. first amendment

[Proteus]

It's billions of counts of illegal wiretapping

I'd very much like that to be the law, but it isn't. What the NSA did is probably illegal, certainly ought to be, but it isn't wiretapping. Wiretapping, as legally defined, requires that someone listen to a conversation. That's well-established enough that the NSA went out of their way to "only" capture metadata about the conversation.

What the EFF (and others) are arguing -- I think correctly -- is that even though it's not wiretapping, it's still a violation of our rights. Given the recent history of court rulings on 4th Amendment grounds, they probably feel they have a better shot at making this 1st Amendment argument than hoping for the court to agree that capturing phone call and internet message "envelopes" constitutes a search.

Re:fourth amendment vs. first amendment

[Duncan J Murray]

here's the basic premise in the founding of the enlightenment model US (boiled down):
rights were given to you by your creator, not by your government.

Not true. Every person's right is another person's responsibility.

An anarchy gives no rights to any person (except maybe 'might is right'). Look at the animal world - what rights do animals have? Every right you can think of requires active intervention by a responsible person.

Re:fourth amendment vs. first amendment

[Proteus]

The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect

I wholeheartedly disagree. A dragnet is supported by either probable cause or a warrant, is subject to judicial review, and narrowly targets a specific area to find a specific person or persons.

What the NSA has admitted to with PRISM is more like the police following everyone around wherever they go and noting where they went, when they went there, and who they were with.

Re:fourth amendment vs. first amendment

[Stickerboy]

But why chase after a complicated case involving an obscure amendment when there's a simple one available? Americans generally understand that political speech is protected by the 1st amendment. Point out that monitoring makes that impossible, and you're done, in a way that's very easy to explain to people--and therefore rally support around.

Yes, but it's not entirely clear that "monitoring makes that impossible". For example, as long as the government doesn't interfere with a political rally, can you really show harm to 1st Amendment rights by the mere fact that the government databased everyone who attended? It would seem that a 4th Amendment challenge would be much more clearcut.

To further extend the analogy, I'm in favor of responsible gun control that doesn't infringe on 2nd Amendment rights - including comprehensive databases on gun ownership for criminal tracing and background checks. Unless you really believe the nutball theory that evil UN men in black will use those databases to swoop in and start confiscating guns indiscriminately then it's pretty implausible that holding gun sellers and owners accountable would violate anyone's rights.

Re:fourth amendment vs. first amendment

[Gr8Apes]

But the 9th tackles it in a very simple way: Show me where in the Constitution it is enumerated that the government is allowed to do this. You can't? Then the government is not allowed to engage in this activity.

It goes from attempting to prove that the government is violating something to the government proving that it is allowed to do something. A whole different ball of wax. And a whole lot easier for the people.

Re:fourth amendment vs. first amendment

[sjames]

It may sound like sophistry, but in fact the government didn't take the rights from the Japanese-Americans, they still had them. What it did was fail to respect (violated) those rights. The rights are not the government's to give or take.

Admittedly, from a practical standpoint the two were indistinguishable to the people in the camps. The difference is in morals and ethics. It is unethical and immoral to fail to respect people's rights.

Re:fourth amendment vs. first amendment

[yndrd1984]

Show me where in the Constitution it is enumerated that the government is allowed to do this.

In the interstate commerce clause, right next to where it lets the government ban marijuana, a bit after the penumbra that protects abortion.

Re:fourth amendment vs. first amendment

[jcr]

Wiretapping, as legally defined, requires that someone listen to a conversation.

They routinely record conversations. The crimes have been committed whether they get around to listening to those recordings or not.

-jcr

Re:fourth amendment vs. first amendment

[Anonymous Coward]

A more accurate (and more modern) take is that rights are the product of consensus. They don't exist until we say they exist, and they're intangible until we begin acting to enforce rules protecting them. Thus, you do not have any rights that you can't actually assert.

This is why rights must be defended in order to be of any consequence to those of us in the real world. To most Americans the Constitution is some kind of magical scroll, and the founders were like wizards who inscribed upon it a mystical freedom-granting spell in the form of the Bill of Rights. In reality we need organized action (historically provided by powerful institutions) to give laws teeth, including and most importantly laws designed to protect our rights from persons and organizations that violate them. Without that force behind them, rights really are fiction, because in that case no matter how loudly and how often you say that you have those rights, nobody is going to come to your aid if they're trampled upon. (That's what it's really about in the end. The concept of protected rights in its most basic form is a mutual defense agreement designed to prevent certain kinds of behavior from being interfered with.)

There is no such thing as a natural right, only natural wants which we sometimes agree upon. Those wants are why many of us find the idea of rights attractive. We have many of those wants in common, and once in a blue moon they're important enough to us that we're actually willing to risk our lives and livelihoods in order that they be satisfied. Rights are artificial, they are man-made, and they have to be maintained. (Even if there is a creator which endowed us with those wants so that we would invent the idea of rights, that creator isn't doing shit to protect those rights anyway, so the point stands.)

Re:fourth amendment vs. first amendment

[cold fjord]

That "legal" interpretation is the one that exists only in the minds of certain government lawyers.

Legal interpretations and doctrines don't just exist in people's heads, they exist on paper. That is the accumulated case law and legal precedents from 220+ years of jurisprudence. There are many situations in which it isn't clear how either the law or the Constitution applies until it is tried in court. Different courts across the country often have varying degrees of difference in their interpretations. The entire understanding of a law can change based on a Supreme Court decision. That is before you even get into the question of deciding how competing claims from different parts of the Constitution interact in a particular situation, under a particular body of law.* And make no mistake, there are many different bodies of law, including some that people either pretend don't exists, or wish didn't exist, such as the Law of War and national security law. They are distinct from ordinary criminal law.

You are making bold declarations while standing on sand.

*Example: Article II powers of the president versus the 4ths Amendment involving national security law, rather than criminal law.

Re:fourth amendment vs. first amendment

[Sir Holo]

An attorney pursues all violations (crimes) that apply to a case. This NSA stuff (IANAL) is conceivably both.

First Amendment (...the right to peaceably assemble...): Let's say that you talk on the phone with a weightlifting buddy. You "assemble" with the guy to lift weights. For reasons unknown, the NSA thinks he's a potential terrorist. Oops! Well, now, guess what? By association, under the NSA's tapping procedures, you are also swept into their dragnet of invasive surveillance, and they start examining who you call (leading, arguably, to the additional fourth-amendment violations of an unreasonable search).

The "...unreasonable search..." bit of the fourth will undoubtedly end up in the Supreme Court for final interpretation.

From a logical perspective, why would the NSA be spending all of this effort on collecting and correlating population-wide who-called-who and when information, if they didn't think it would provide them with information. Specifically, information that they couldn't get without otherwise violating known and established-by-prior-case laws?

They're essentially exploiting an area of the law that is vague in relation to the very recent explosion of electronic communication and metadata storage thereof. The constitution doesn't define "unreasonable" in terms of "envelope information" on phone calls, emails, or physical letters.

The NSA has also argued, in press releases or public discussions, that because you share your telephone call metadata with a company, that you have forsaken all rights to privacy of that information. A ludicrous argument.

I have a reasonable, but only tacit, expectation AT&T isn't going to post all of my telephone metadata from the past 10 years in the New York Times tomorrow. This should be codified into law. What legislator, attorney, negotiator, or lobbyist would agree to the idea that all of their communications metadata is public? Hmmn?

Re:fourth amendment vs. first amendment

[smarkham01]

And I'm in favor of responsible First Amendment rights with adequate controls that, while not infringing on your 1st Amendment rights, will permit the proper authorities to determine that you haven't committed sedition, threatened the President, conspired to overthrow the government, etc. You won't mind registering your computer, friendships, reading lists, and such with those likable folks now, would ya?
 

Re:fourth amendment vs. first amendment

[greg1104]

If the US government actually cared about the limits on its scope in the constitution, we would not have the Authorization for Use of Military Force Against Terrorists or the Patriot Act. When the government isn't even paying attention to its own rules on declaring war, the idea that the enumerated powers provide any limit on its scope is rather weak. A government that's let all that happen is not going to suddenly turn introspective on the vast subject of whether its recent decisions are really within its powers.

Unlike the ninth, the courts still act like the first amendment is valid sometimes, which is what makes that a better bet for waging a lawsuit.

Re:fourth amendment vs. first amendment

[greg1104]

You know what else used to be a nutball theory? That the NSA had vast spying capabilities being used to monitor large swaths of the Internet all of the time.

There's plenty of historical examples that show lists of citizens meeting some criteria turning into a list of people to inflict government action upon. We don't even have leave the US to find one. It was the US Census database that was used to round up Japanese citizens for internment to fulfill Executive Order 9066. If I have an unusual political belief--let's use the example from the TFA of advocating marijuana--I have every reason to believe that when the government collects data about my communication, it might one day use that to prosecute me for drug related offenses, and launch investigations of those I deal with too. That sort of chilling effect on political speech is why monitoring makes free political speech impossible. Any student of history knows the bad situations that leads to.

Re:fourth amendment vs. first amendment

[cfsops]

Unless you really believe the nutball theory that evil UN men in black will use those databases to swoop in and start confiscating guns indiscriminately then it's pretty implausible that holding gun sellers and owners accountable would violate anyone's rights.

It was exactly that "nutball" confiscation of guns, perpetrated by James against Protestants, that led to the assertion of the right in the British Bill of Rights and which in turn led to its inclusion in our Second Amendment.

I'm sure I don't know what you mean by holding gun sellers and owners accountable. Hold them accountable for what? Are you suggesting that gun sellers and owners are, by definition, guilty of some crime for which they must be held responsible? If they've done something "wrong" and have been judged guilty, as you seem to suggest, what's the point of a list? Why not just punish them?

Re:fourth amendment vs. first amendment

[0111 1110]

Yup. If the ninth amendment were not ignored by pretty much everyone but Libertarians, it would require the government to amend the constitution every time it wanted to violate human rights in a new way. Ultimately we'd just end up with a lot more amendments though because Republicrats mostly support the status quo. With the possible exception of PRISM of course. I suspect a national referendum to stop PRISM would pass, although maybe not by as much of a landslide as we'd like to believe. There are a lot of 'my government right or wrong' people around.

Re:fourth amendment vs. first amendment

[0111 1110]

Nevertheless it couldn't hurt to have the word "unreasonable" deleted from the 4th amendment. That weasel word essentially kills the whole thing. It's up to some pro-government, pro-establishment judge to define "reasonable".

Re:fourth amendment vs. first amendment

[0111 1110]

Every person's right is another person's responsibility.

This is precisely true, but probably not in the way you mean. The responsibility on the part of the other entity is simply not to interfere. It's based on the idea of the basic equality of all human beings. That no human being has the right to prevent others from essentially living their lives unmolested as long as they aren't harming anyone else. The idea behind Natural Rights is that if we assign such rights it allows people to live together in society in a way that is most fair and most consistent with the principle of equality.

Another way to look at it is that this basic equality of all human beings is more about a lack of rights. That no one has the right to prevent you from living or to prevent you from satisfying your basic needs in order to live. That no one has the right to really prevent you from doing anything at all as long as you haven't already interfered with someone else's life. Once you have crossed that particular line then all bets are off and a just and free society can choose to seek justice in an attempt to right the wrong of your unwarranted interference in someone else's life. Hopefully with a punishment that is proportional to the crime.

This crossing of personal boundaries is also a good way to distinguish between rights and privileges. Whenever what you want to do involves someone else the act is a privilege. One that can be revoked at any time for any reason. When it involves only yourself it is usually a right. For instance having consensual sex with someone else would be a privilege. Having sex with yourself, a right.

Re:fourth amendment vs. first amendment

[cavreader]

One hurdle for those filing the lawsuits will be trying to prove the data collection programs have actually harmed anyone. Most of the arguments today contain words such as if's, possibly, might, or in the future. The government will need to prove that these programs have had any positive effect in regards to the stated purpose of national defense. The easiest resolution would be for the government to end or at least scale back these programs. Of course it would be difficult to tell if the government actually ends the programs.

Re:fourth amendment vs. first amendment

[anagama]

We don't even need an AMF anymore, not since Obama waged war in Libya without authorization from Congress. Next time a Dick Cheney type is in office, remember to send a thank you card to Obama.

Re:fourth amendment vs. first amendment

[dryeo]

4th amendment amends the constitution and trumps article II. Unluckily courts have overridden most of the constitution turning it into a piece of paper so why even refer to it? Basically government can do what it wants as long as they can find a sympathetic court. Want to break the first amendment, declare that speech actually means some types of speech. Want to house soldiers in houses? Declare they meant toy soldiers in the third. And on and on. The American constitution is broken as it is selectively enforced and people like you cheer the selective enforcement on, at least until you find yourself prosecuted for talking.

Re:fourth amendment vs. first amendment

[WGFCrafty]

If terrorist kill people it effects interstate commerce, therefore Commerce Clause!

I joke, but seeing that this (the commerce clause) is an oft abused set of words, it's possible.

Re:fourth amendment vs. first amendment

[grcumb]

Yes, but it's not entirely clear that "monitoring makes that impossible". For example, as long as the government doesn't interfere with a political rally, can you really show harm to 1st Amendment rights by the mere fact that the government databased everyone who attended?

In a word, yes. Here's an excellent legal argument from the Harvard Law Review that details how surveillance influences the exercise of First Amendment rights. From the abstract:

Surveillance is harmful because it can chill the exercise of our civil liberties, especially our intellectual privacy. It ialso gives the watcher power over the watched, creating the the risk of a variety of other harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.

The author goes on to explain in detail how the chilling effect applies, citing sources for his claim that knowing you're being watched influences even how you think. The practice of widespread, untargeted surveillance has an insidious effect on freedom, and should therefore be subject to significant legal constraints.

Re:fourth amendment vs. first amendment

[bfandreas]

Honestly, I would leave the final details of this discussion to constitutional experts. The most important bit is that in an enlightened civilisation secret courts issuing secret orders to enable secret operations of secret organisations is an absolute no-go. The people simply shouldn't wear it.

Especially since this data trawling dragnet is show to be next to useless when it comes to prevention if it is the sole measure. You still need to know what to query for since no human being will analyze all the data as it streams in and there's too much for a stab in the dark. Also we have been strewing random Al-Quaida, cocaine, bomb-threat, terrorism and other terms into all our internet communication since Echelon was rediscovered in the late 90ies. Now, 20 years later it's not a couple of geeks pissing into their keyword searches anymore. Now it is also senior politicians who start to object. No thanks to the giant, gormless, embedded echo chamber that is the US press.

Re:fourth amendment vs. first amendment

[Gr8Apes]

Probably because no one has tried this tact in a while. Perhaps we should start including it more, and make the most out of what is arguably the most important amendment to the Constitution, Commerce clause be damned.

Re:fourth amendment vs. first amendment

[MachineShedFred]

A door-to-door dragnet still requires the police to gain your permission to search your home, or a proper warrant granted on sufficient probable cause.

They can knock, but you are under no obligation to allow them in or answer any questions.

Re:fourth amendment vs. first amendment

[Jawnn]

The fourth amendment's applicability is only certain in the minds of privacy advocates. Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches or target someone specifically without a good enough reason to convince a judge. The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

Says who? May I not be the judge of whether or not some unwarranted (so stipulated in the forgoing) invasion of my privacy is reasonable or not? Furthermore, the comparison of the NSA's wholesale warehousing of private data with a neighborhood canvas is patently absurd.

Re:fourth amendment vs. first amendment

[chihowa]

This might be a good opportunity to push for an amendment to the constitution that clarifies and limits the scope of the commerce clause, the "necessary and proper" clause, and anything else that is too nebulous to limit the powers of the federal government. Fixing the commerce clause alone would stop a huge swath of the most egregious overstep we've seen.

Re:fourth amendment vs. first amendment

[Hatta]

That is the accumulated case law and legal precedents from 220+ years of jurisprudence

220 years of lies doesn't amount to truth.

There are many situations in which it isn't clear how either the law or the Constitution applies until it is tried in court

Yes, there are. This is not one of them. The 4th amendment is quite clear. It was written in plain English, and ratified by a people who spoke plain English. The meaning of the 4th amendment, both in letter and in spirit is unambiguous. 220 years of perversion by a corrupt judiciary does not change that fact.

And make no mistake, there are many different bodies of law, including some that people either pretend don't exists, or wish didn't exist, such as the Law of War and national security law. They are distinct from ordinary criminal law.

And ALL of them are superseded by the Constitution, the highest law of the land. Any of those laws that conflict with the 4th amendment are invalid. Anyone who enforces a law in conflict with the 4th amendment is a criminal.

Re:fourth amendment vs. first amendment

[X0563511]

At which point shit will start hitting fans. They don't want to go up that particular creek...

Re:fourth amendment vs. first amendment

[Proteus]

There is no proof I'm aware of that the NSA captures all data; they have the capability to capture data, but there's no evidence they routinely do so. Capturing all data from nodes would be a Herculean undertaking, and it doesn't even make sense for them to do so.

Capturing metadata gives them the bulk of what they need for surveillance, possibly falls into a legal loophole (they certainly think it does, anyhow), and requires far fewer resources to acquire, store, and process.

Re:fourth amendment vs. first amendment

[Proteus]

No, they don't. The NSA doesn't do this directly, they use their legal authority to require that providers do it for them. Providers often have short-term logs of the relevant metadata for security, troubleshooting, and the like; they simply ensure that NSA gets copies as the logs are created (remember: the NSA requires that they do this).

In a phone system, for example, the switching systems that route phone calls log the switching activity. That's metadata. Cell towers log location data (as course as cell handoffs or as fine as GPS coordinates, depending on a host of factors) for service management and troubleshooting purposes. ISPs log requests, including source IPs. And so on. That's all metadata.

The storage requirements for that volume of data are so high that providers typically only retain such data for extremely short periods of time; hours or days at most. That makes them hard to subpoena; so the NSA's PRISM program allows them to simply get real-time copies of those logs, and they handle the data-retention for their purposes.

Re:fourth amendment vs. first amendment

[someSnarkyBastard]

Two words: Commerce Clause. Your argument is now invalid.

Re:fourth amendment vs. first amendment

[someSnarkyBastard]

While I agree with you that there is most likely no "Creator" I take umbrage at the logical jump you make to saying that we therefore have no inherent rights. Rights don't have to be granted by anyone - man, God, or dog - they are an integral part of being human.

Additionally, Utilitarianism is not without its own pitfalls. Evil acts such as murder or even genocide can be conducted in clear conscience so long as "the greatest good" is achieved "for the greatest number" aka "You have to break a few eggs to make an omelet".

So, to conclude, I would rather stick with the silly Deists who say that I have "certain unalienable Rights" by the simple virtue of being human rather than being a potential means to an end

Re: fourth amendment vs. first amendment

[Mabhatter]

But YOU cannot PROVE you have been damaged. NOBODY can prove damages because the NSA does not use the collected data in actual criminal cases. The NSA operated primarily on MILITARY cases involving spies and terrorism... Cases where the solution is simply shooting the enemy while they committ the crime.

The POTENTIAL IS VAST to misuse their spying... But RIGHT NOW there is zero evidence in the public eye that a court can rule on.

It doesn't matter if Snowden was on the system spying on everyone... Nothing he has proves a chain of evidence... Leading to a corrupt JUDICIAL proceeding. A court can only JUDGE if material is applicable to CRIMINAL COURT PROCEEDINGS or not. The legal precedent from WW1 and WW2 clearly ALLOWS the government to monitor for enemy communications and absorb data like a sponge. CONGRESS has clearly provided funding for hardware to do that... Two out of three branches are colluding and you're stuck.

The key item is CRIMINAL COURT PROCEEDINGS. That is ALL USA courts get to rule on. And the EFF will never find the illegally gathered NSA data actually USED in a criminal chain of evidence. So there's never going to be a case. The US system is PURELY adversarial at he federal level.. Without an IDENTIFIABLE WRONGDOING to SOMEONE the EFF has no grounds for a case. Not to mention lack of a VALID government official target of the suit that does not have implicit permission from Executive Branch to perform collection.

Re:fourth amendment vs. first amendment

[MrResistor]

The problem with the fourth amendment argument is that the internet is effectively a public place. The NSA doesn't need a warrant to packet sniff the internet for the same reason a cop doesn't need a warrant to listen in on your conversation while you're waiting in line at Starbucks.

It would certainly be nice if the fourth applied here, but it's not an argument that that's likely to ever prevail in court.

Re:fourth amendment vs. first amendment

[pruedz]

The fourth amendment's applicability is only certain in the minds of privacy advocates. Legally, the fourth amendment is generally held to mean that the government can't disrupt your life with its searches or target someone specifically without a good enough reason to convince a judge. The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

No, it's not. It's more like the police break into your house at night while you're asleep, check all your drawers and wardrobe, listen to all messages in your answer machine, mess with all your family photos, browse all dirty mags hidden under the bed of your son, scan all your daughter panties, maybe taking something from your fridge, then leaving no trace behind. No impact or disruption in your life at all. But utterly amoral. It's not a question if is Legal or Not Legal. Legality is irrelevant. It's a question about if it's can be done or not. People make Laws, Laws don't make People. People change Laws.

Re:fourth amendment vs. first amendment

[Gr8Apes]

Oops - its not commerce but speech. Tracking every person's contacts etc are not commerce in any way, form, or fashion, and has many precedents against it. Is that enough to dispute your assertion?

Re:fourth amendment vs. first amendment

[kermidge]

"the courts still act like the first amendment is valid sometimes"

Ouch.

That's one of the simpler, truer, and sadder comments I've read in a while. Jesus wept, but we're screwed so badly when it's come to this. I hope (however irrational that hope may be) that the lawsuit has a good outcome for us.

Re:fourth amendment vs. first amendment

[Rakarra]

I suspect a national referendum to stop PRISM would pass, although maybe not by as much of a landslide as we'd like to believe. There are a lot of 'my government right or wrong' people around.

I think you're right, but not for the reason you give. I believe it's much less "my government, right or wrong" and a lot more "why would I care? I'm not doing anything illegal, so I don't have anything to hide. If it catches terrorists, it's worth it."

Re:fourth amendment vs. first amendment

[Rakarra]

And then there's this argument: Rights aren't real if they can be taken away from you arbitrarily for no crime whatsoever.

Rights aren't real, period. Anyone can do anything to anyone else. We have laws that punish and sometimes try to prevent, and a society that decides what those laws should be. That's about it.

Re:fourth amendment vs. first amendment

[Man Eating Duck]

What the EFF (and others) are arguing -- I think correctly -- is that even though it's not wiretapping, it's still a violation of our rights. Given the recent history of court rulings on 4th Amendment grounds, they probably feel they have a better shot at making this 1st Amendment argument than hoping for the court to agree that capturing phone call and internet message "envelopes" constitutes a search.

The main problem is, I think, that the American population is perfectly fine with this. You have political parties that are staunchly against this kind of abuse, and which would probably abolish them if given the power, but you don't vote for them. The mere fact that you have the term "third party" which covers *all parties but two* and for which a vote is largely considered wasted, should be a red flag that something is very wrong with your democracy.

Re:fourth amendment vs. first amendment

[Man Eating Duck]

The argument really shouldn't be "is that legal?", it should be "that's not what we as a society want, so make it illegal and amend the constitution to do it if we have to."

This is -why- the constitution is a "living document"; we're supposed to be able to fix it when a hole like this shows up. We shouldn't have to make difficult reaching arguments about how a surveillance state is a 1st or 4th amendment violation.

What is really confounding to me is that you need this hole to be covered up, because otherwise the government will act against the people's wishes whenever given the loophole to do so. So, the government is an adversary of the people, and this is how it's supposed to work? When the people in charge do something which is clearly against what people want, they should naturally lose power due to a lack of votes. How did you get into this fix?

If you have nothing to hide

[intermodal]

then it's still none of their damn business. Consittutionally speaking.

Re:If you have nothing to hide

[Anonymous Coward]

It's more than that. It is their legitimate business to look for people of some types (criminals, terrorists, spies, etc.), but what the innocent have to fear from broad sweeps is a very real problem even if everybody has good intentions: false positives. They aren't just hypothetical. They really happen. On top of that, how do you know your friends aren't themselves a problem, or that they've never ever been involved with anything questionable, or that they aren't connected to someone who is?

So, even if you have "nothing to hide" there are things to fear from these activities. I really don't want my door broken down by a SWAT team or worse because someone goofed up a fingerprint (what happened to Brandon Mayfield) or a fricking IP address.

Re:If you have nothing to hide

[intermodal]

Amen. I have no desire to be Mr. Buttle either.

Re:If you have nothing to hide

[jma05]

There is an entire book exploring this
Nothing to Hide: The False Tradeoff between Privacy and Security - by Daniel J. Solove
"Daniel J. Solove is the John Marshall Harlan Research Professor of Law at the George Washington University Law School and an internationally-known expert in privacy law."
http://www.amazon.com/Nothing-Hide-Tradeoff-between-Security/dp/0300172338

Arm yourself with arguments to refute enthusiastic or apathetic proponents of the surveillance state.

Sue the government?

[fustakrakich]

Only if it gives permission.

Lots of luck.

Lawsuits and protests are proving to be ineffective as governments around the world grab more and more power. The time to hit the next level is rapidly approaching. The enemy has yet to reveal its true face.

Re:Sue the government?

[intermodal]

We've seen its face before. It's just been a long time since we saw it up close and personal.

Re:Sue the government?

[CoonAss56]

Just like we did in New Orleans and St Bernard Parish against the Corps of Engineers. We won in the lower court then the Court of Appeals overturned it because of government immunity. Lotsa luck with the suing stuff, but you are going to be defeated.

Yee Ha!

[mlwmohawk]

Lets see how far we can get. We all need to donate. This is a test of our very democracy. I fear its long gone.

Re:Yee Ha!

[crakbone]

The U.S. is a Republic. Think your Democracy test is going to fail.

Re:Yee Ha!

[Anonymous Coward]

The EFF has been doing this for years.
It's just gaining traction because, for some fuck unknown reason, it's in the media spotlight now.

Where the fuck was the investigative journalism when all these dark data centers and closed room telco data taps were being built? You know, the ones that have been reported here on Slashdot for a damn near decade?

This is only in the spotlight now because it's politically convenient for some one, for some reason. Don't be manipulated. Keep your eyes open. Look for the strings on the puppets and follow them to the source.

Re:Yee Ha!

[Tokolosh]

Democracy =| Freedom

Re:Yee Ha!

[Wookact]

It is a democratic republic. It may also be called a representative democracy.

Re:Yee Ha!

[spacepimp]

Done and Done. I should have donated sooner.

Re:Yee Ha!

[Zynder]

Which all sounds like a bunch of smoke and mirrors bullshit to me. Kind of like that anarchosyndicalist commune bit in Monty Python. AC's point still stands.

Re:Yee Ha!

[someSnarkyBastard]

No, we are a hybrid bicameral system that includes elements of a Republic and a Representative Democracy.

The impact of metadata surveillance

[gentryx]

Today, most US media seem to be obsessed with pointing fingers at Snowden. What few people realize is how this total surveillance of NSA and GCHQ tilt the balance of powers. Using graph theory, it is possible to compute (just from knowing who's talking to whom) who the agitators are in any given movement. If the Brits would have had the same technology back in 1770, there would have been no American Revolution. They'd simply have pinpointed and jailed the members of the Committees of Correspondence, leaving the revolution headless. A malevolent government could use this technology to suppress its own people. This is too much power.

Re:The impact of metadata surveillance

[mlwmohawk]

Would government controlled media behave any differently? That being said, if it looks like a duck, and quacks like a duck, we have to at least consider that we have a small bird of the family anatidae on our hands.

We are too focused on direct forms of control, the old communist and fascist couldn't even DREAM of what we have today, and it is all done with a fabric of self sustaining bribery.

Re:The impact of metadata surveillance

[Anonymous Coward]

If the Brits would have had the same technology back in 1770, there would have been no American Revolution.

Wow. A pro-NSA posting on /. that is not instantly modded as Troll?

Re:The impact of metadata surveillance

[Impy the Impiuos Imp]

This. The real problem is misuse, not use for finding terrorists. As long as there is one secret room in one of these multiying billion-dollar data centers, it's all for naught.

Let us listen in on the Republicans, or Democrats, and see their strategy. Then we can preemptively counter it with trial balloons, dirty tricks, astroturfing, and so on. This crap is bad enough without the power to make any of the opponents' plans stillborn or DOA.

Let's check up on candidate X. No alarms go off. See his calls, and calls of those he calls -- ooh, he's talking to someone rich, or a PAC. How can we discredit them?

Of course, Snowden claimed he could listen directly to their phone with no alarms going off, but even without, it's a dangerous power.

"They can't do that" is toothless if it's just a manual requirement for forms and permission, instead of uncorruptible logging and alarms going off in 50 managers' offices.

Re:The impact of metadata surveillance

[Hatta]

The real problem is misuse, not use for finding terrorists.

Even if this program were 100% targeted towards terrorism, it would still violate the 4th amendment. That's a real problem. If the government needs increased surveillance powers to keep the people safe, it must amend its constitution. Anything else is a crime.

Re:The impact of metadata surveillance

[Rockoon]

You need to look no further than the Zimmerman case to figure out how this might effect you.

Zimmerman gets acquitted in a jury trial, so then the U.S. Attorney General Eric Holder openly announces that he will see if he can find a federal charge to pin on Zimmerman.

They have chosen a target and are now fishing for a law within the vast sea of laws that we have enacted that the target has violated. I'm not saying that this is a new thing but once we throw the constraints of the 4th amendment out the window, every such fishing expedition will be successful. Then its simply a matter of being the one in the position to choose targets.

Re:The impact of metadata surveillance

[cbhacking]

If you think that's pre-NSA, you (to borrow a term from history) need your head examined. The entire point of that post was that the government can't be trusted with such power, because it leads to tyranny. You, not the GP, are more worthy of Troll moderation (sadly, I already posted in this thread).

Re:The impact of metadata surveillance

[cold fjord]

it would still violate the 4th amendment.

If you make it to the Supreme Court and convince 4 other justices to vote with you, it might after the next case. It doesn't today.

Re:The impact of metadata surveillance

[Sir Holo]

The American Revolutionary fighters against Great Britain were called "insurgents," "terrorists," "guerrila fighters," etc., or at least the equivalent terms-of-the-day.

These cowardly proto-Americans didn't fight by the rules! No standing in long, red-coated phalanx-like lines to be easily shot with low-accuracy guns. Oh no! They fought in loose groups, hiding in the forests, taking pot-shots, sniping, and basically ignoring the gentlemanly rules of killing one another. How dare they!

Do you recall who won?

Re:The impact of metadata surveillance

[Zynder]

Given the fickleness of humans and our ability to be whipped up into a frenzy over practically nothing, do you believe for one second that Congress couldn't get something codified into an amendment? Hell they managed to ban alchohol at one time and a whole lot of the general populace loves some alcohol. So even if they did get the amendment passed which fulfilled the criteria you stated above, then you and people like you, would simply start screaming that it was rigged or someone got paid off or whatever because the verdict doesn't line up with the outcome you believe is the correct one. Don't misunderstand me here though, I don't approve of this anymore than you do. However I agree with one of the other highly modded posters here, hairyfeet, that you cannot fix a corrupt system by working within that system. If you are stuck in that system as we are, then don't fix it- BREAK IT. Overload it until it won't work anymore (cause it does work, just not how we want it to). Once it collapses, then you can rebuild it. Being on slashdot, you've probably fixed a computer or 2 in your day. Most computer viruses can be repaired without completely erasing the storage medium. There comes a time however when the OS gets so fucked up that formatting the thing and reinstalling is the most productive course of action. Also the correct fix for a lot of computer issues is simply rebooting it. I posit that our gov needs rebooting and if that doesn't clear the problem up, we format it. I am not however a revolutionary. I'm not advocating we start the format today. Eventually though it will get so screwed up we won't have a choice. This is reality based in history and to be honest I hope I am history before all this fecal matter hits the rotating blades.

Re:The impact of metadata surveillance

[Hatta]

The fact that the Supreme Court is thoroughly corrupt does not change the Constitution. It only makes our government illegitimate.

Re:The impact of metadata surveillance

[chihowa]

In other words, no law is unconstitutional unless the government declares that it is unconstitutional? How convenient.

Actually, it was established in case law dating to 1886 (Norton v. Shelby County) that an unconstitutional act is void “ab initio” i.e. the moment it is signed into “law.”
As stated in that case: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection, it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”

I'm sure the Jews in Germany though...

[Anonymous Coward]

Thought they had nothing to hide too...

You may have nothing to hide now but how do you know that after the next election the government wont start targeting the group you are affiliated with. Don't think it can happen... During the last election the IRS targeted conservative non profit organizations...

Maybe next time the government will target liberal organizations... Remember McCarthy?

Re:I'm sure the Jews in Germany though...

[Guy Harris]

left-handed dentists without tonsils (thank you, Berkeley Breathed).

Blind, left-handed dentists without tonsils.

Re:I'm sure the Jews in Germany though...

[tizan]

The IRS targetting of tea party was finally found to be bogus there was no explicit tilt in targetting as of last and it was the media only reporting what initially appeared to be ...but forgot to follow on when no simplistic story line was found.

A good and free press is necessary in a democracy ...not just a free press....otherwise they are free to report only on the royal baby or juicy event and forget to tell you what really is happening with people in power

Re:I'm sure the Jews in Germany though...

[phantomfive]

I'm sure the Jews in Germany though...they had nothing to hide too

Trying to relate everything to Nazi Germany is the sign of an ignorant mind. Can't you think of an example that is more appropriate?

In this case it's not even right, Jews in Germany definitely knew they had things to hide, and some had been trying to hide their Jewishness for hundreds of years before WW2.

Re:I'm sure the Jews in Germany though...

[pixelpusher220]

During the last election the IRS targeted conservative non profit organizations

well to be fair, a registered republican conservative thought up the idea...

Re:I'm sure the Jews in Germany though...

[sttlmark]

It's called Godwin's Law. It sucks, but it's inevitable in discussions like this. I gave up fighting it years ago.

Re:I'm sure the Jews in Germany though...

[cold fjord]

That is wrong. It has been confirmed that the IRS was heavily weighting their actions against the Tea Party and other conservative groups.

The IRS Scandal, Day 64

Re:I'm sure the Jews in Germany though...

[Sir Holo]

...During the last election the IRS targeted conservative non profit organizations...

Minor correction. It was later shown that they also targeted liberal organizations. It was not necessarily political, but really due to laziness. They used (political) keywords to find organizations that they thought might be more likely to engage in political speech (thus not non-profit), rather than education (non-profit), etc. activities.

The rest of your point is entirely appropriate. The "I've got nothing to hide" belief is indeed ignorant. Governments change. Leaders change. The "enemies of the State" change. You never know, you could one day find yourself in that group, by no fault of your own. (Frankly, we seem to already have a witch-hunt mechanism in place. Just call the NSA/FBI and say your neighbor is casually discussing bomb-making.)

Government is inefficient. This is by design. You do not want a leader, who unfortunately turns bad, to have access to an efficient system to profile and quickly put-away anyone s/he considers an enemy of the regime. It can happen. Remember, Hitler was democratically elected...

Re:I'm sure the Jews in Germany though...

[mellyra]

In this case it's not even right, Jews in Germany definitely knew they had things to hide, and some had been trying to hide their Jewishness for hundreds of years before WW2.

As far as we know today that isn't quite true. Jews in Germany were generally integrated extremely well, they felt "German", they had fought for the Reich in WW1, ... They didn't try to hide or run, even long after aggressive rhetoric had already turned into actions. The idea that their own country might try to exterminate them was literally unthinkable to many of them. Rumors about extermination camps were discarded as wild exaggerations and the general mood was to just stay low, try to get along with the nazis as best possible and wait it out.

There is a huge debate among historians whether this attitude (instead of a "fight back or run" attitude) enabled the Holocaust, whether a crime on that scale would even have been possible if the victims had not walked like cattle to the slaughterhouse, deluded by their feelings of patriotism, and if Jewish organizations did commit a grave mistake by not taking reports from concentration camps more seriously and publicizing them instead of trying to get along well with the German authorities and trying not to give any cause for offense.

Re:I'm sure the Jews in Germany though...

[phantomfive]

German Jews for centuries had gone through periods of oppression alternated by acceptance. You see people changing their names from Bartholdy to Mendelssohn, for example.

Now of course, they could have resisted more, and maybe that would have accomplished something, but that's far from thinking "I have nothing to hide." Even non-Jewish Germans were careful about what they said in public.

Re:I'm sure the Jews in Germany though...

[shutdown -p now]

People of Japanese ancestry that were interred in US during WW2, for example?

Re:I'm sure the Jews in Germany though...

[phantomfive]

That doesn't really relate to the topic.......

Re:I'm sure the Jews in Germany though...

[shutdown -p now]

Doesn't it? The reason why US could enforce the interment law so thoroughly is because it had lists of people with Japanese ancestry from the census, which included ethnicity as one of the questions.

Re:I'm sure the Jews in Germany though...

[phantomfive]

Read the thread, it's talking about people (specifically, Jews) who thought they had nothing to hide. There's no reason to think the Japanese believed they had nothing to hide.

Re:I'm sure the Jews in Germany though...

[shutdown -p now]

At the point in time Japanese Americans were asked about their ethnicity in the census, I'm pretty sure that most of them believed that this particular piece of information about themselves was "nothing to hide". After all, who could possibly care, in a free country?..

With respect to German Jews, quite a few of them had similar attitudes during the existence of Weimar Republic. Though they had certainly more reasons to be wary based on relatively recent experience.

Re:I'm sure the Jews in Germany though...

[Rakarra]

Trying to relate everything to Nazi Germany is the sign of an ignorant mind.

Why? He didn't call anyone a Nazi, so Godwin's Rule doesn't apply. Nazi Germany is one of the most defining events of the 20th century, it's certainly going to apply to a number of discussions about rights, societal responsibilities, government overreach, and any time someone fears they could be persecuted by the government.

In this case it's not even right, Jews in Germany definitely knew they had things to hide, and some had been trying to hide their Jewishness for hundreds of years before WW2.

That's for damned sure, Jewish history sucks.

Re:I'm sure the Jews in Germany though...

[phantomfive]

Nazi Germany is one of the most defining events of the 20th century,

That's exactly the reason for Godwin's law, that everyone, even the most ignorant, know about the Nazis. In most cases, if you can't think of an alternate example to make you're point, then you're probably not educated enough to make your point, and you're probably among the most ignorant.

Re:Well...

[stanlyb]

Well, what's wrong with actually having anything to hide? No, really, you make it sound as it is a bad thing, but please, show me where in the constitution it is written that if you have something to hide, the minimum sentence is 4 years, for example...

Pointless

[Russ1642]

The EFF suing the NSA is like me challenging Mike Tyson to a fistfight.

Re:Pointless

[Anonymous Coward]

The strength is in numbers, how about 10 of you against mike tyson, i highly doubt he can overcome that. The more people that come together the easier and faster this shit can get undone

Re:Pointless

[Russ1642]

Mike could take ten of me quite easily. That's actually my point. How many toddlers could you take on? Five, ten, fifty? I'll bet you could take on an unlimited number of toddlers. The EFF could throw every cent and every lawyer it has at this and it won't make a dent.

Re:Pointless

[badboy_tw2002]

Of course you can't withstand an unlimited number of angry toddlers. Eventually after the first few 10's of thousand waves you'll get tired. After 7 days of waking toddler slaughter you'll have a momentary lapse where you slip and fall in some sort of viscera allowing them to topple you and overwhelm you with 3-400 toddlers simultaneously. Even after the initial shock of so many toddler bites, you'll regain your footing but now have to deal with the onslaught of fatigue plus the new strains of bacteria that you've suddenly come into contact with through their extremely dirty mouths.

This of course assumes the exercise allows for some sort of disposal mechanism for toddler bodies. One assumes that you can't simply stack the corpses into a wall surrounding a secure area and take a nap there, and/or that you're not allowed to eat them for energy.

So no, you can't beat an unlimited amount of toddlers, and yes, I'll take that bet.

Re:Pointless

[PolygamousRanchKid]

I'd win by challenging Mike Tyson to a fistfight . . . and then shooting him in the head. (Nothing personal, Mike). The government isn't playing fair . . . why should we?

This is why Snowden did what he did . . . he would have lost in a fistfight with the government in the courts, to get them to reveal the illegal stuff that they are doing. Instead, by going to the press, he was able to stick a Tabasco weed right up their ass.

Right now, the government is saying that they can only guarantee our safety and security from terrorist through massive surveillance an intrusions on our rights and privacy. I'd like to see some folks get elected who will have the courage to say, "Maybe there is another way . . . "

Re:Pointless

[AnalogDiehard]

The EFF suing the NSA is like me challenging Mike Tyson to a fistfight.

With Tyson biting your ear claiming the "state secret" clause

Re:Pointless

[michael021689]

Right, there is no point in questioning and no point in fighting. If we little peasants make too much noise our lord will come out of the castle and put us to the sword. And I don't know about these other guys, but my life isn't too bad, working the fields without anything else in my life.

Re:Pointless

[cosm]

That was...eerily informative...thanks?

Re:Pointless

[Zynder]

You watched World War Z didn't you?

Re:Pointless

[felrom]

The EFF needs to learn the lessons of the NRA.

The NRA's operating budget, and the amount of money it spends on lobbying and campaigns barely puts it in the top 50 in DC, but the power it wields is wildly disproportionate. When you can jam up the entire capital switchboard, mobilize tens of thousands of people at a day's notice, and you have 5,000,000 members willing to separate with their money and cast votes over a single issue, then you ARE the power on the issue.

A 5 million member EFF would be as much of a beast in DC when fighting for first, fourth and fifth amendments as the NRA is when fighting for the second amendment.

Re:Ubiquitous Franklin quote

[Anonymous Coward]

Oh FFS with this already.

Here read this at least:

http://www.lawfareblog.com/2011/07/what-ben-franklin-really-said/

Then try to do some research and read some college history texts.

Why First Instead of Fourth?

[organgtool]

I imagine the court will say that the government is not stopping anyone from exercising their rights to free speech simply because they are recording their conversations and building graphs of associations. It would seem more effective to claim these rights under the Fourth Amendment since this deals more with privacy than the First Amendment. In any event, this will likely end the way it did the last time the EFF tried to sue the federal government - the court will seek documents from the security agencies, the security agencies will claim that they can not reveal that information for reasons of "national security", and the court will say that the EFF doesn't have a case since they don't have any evidence due to the fact that the defendant refuses to provide the documents the court requested. This is how fascism begins in a democracy.

Re:Why First Instead of Fourth?

[betterprimate]

They already tried to use the Fourth Amendment. Problem is you basically have to make the government admit to how they violated the fourth amendment:

"The EFF is demanding that the Justice Department immediately process the records previously requested under FOIA and are asking for the feds to compensate them for any attorney fees incurred in their lawsuit against the government.

'As Congress gears up to reconsider the FAA, the American public needs to know how the law has been misused," EFF Senior Counsel David Sobel says. 'The DOJ should follow the law and release this information to the American public.'" http://rt.com/usa/blanketing-spy-program-information-983/

More...

http://arstechnica.com/tech-policy/2012/08/court-ruling-that-nsa-spying-violated-4th-amendment-remains-secret/
http://ncjolt.org/eff-seeks-answers-from-secret-court-in-ruling-on-nsa-spying-violations/
https://www.eff.org/document/complaint-19

Re:Why First Instead of Fourth?

[Bob9113]

I imagine the court will say that the government is not stopping anyone from exercising their rights to free speech simply because they are recording their conversations and building graphs of associations.

The first also covers freedom of association, which is infringed by the government building graphs of all associations, just as it would infringe free speech if they bugged everyone's living room. More on Freedom of Association here: http://en.wikipedia.org/wiki/Freedom_of_association

Re:Why First Instead of Fourth?

[grantspassalan]

Seeking a solution to such government misbehavior in the courts is like bailing out a leaking boat without plugging the leak first. All these so-called "laws" which are blatantly unconstitutional were passed by politicians on both sides of the aisle who failed to represent the people. The patriot act and other unconstitutional laws are what gives these agencies the go-ahead to do whatever they like. These self-serving bought and paid for politicians don't represent the people that elected them, but the elite moneyed class. The quickest way to change the situation by far, rather than the courts, is for ALL incumbent politicians to be voted out and exchanged for some new ones who would at least for a while listen to the will of the people who elected them. Only they could nullify the past unconstitutional legislation and dismantle much of the bureaucracy enabled by such legislation. After that the Constitution would have to be amended to impose strict two term limits on every political elected office. Unfortunately, you are correct that the courts are not really the branch of government that can fundamentally correct these abuses of power. Unfortunately also, a snowball in hell has a better chance than this kind of political reform.

Re:Why First Instead of Fourth?

[glwtta]

Why First Instead of Fourth?

It's the only one that still gets a rise out of (most) people. Most of the other ones have pretty much been hand-waved away, because National Security.

Re:Why First Instead of Fourth?

[Lonewolf666]

The court may yet surprise you.

A few years back, in Germany we had a program for collecting communication metadata that was not quite as intrusive as PRISM but it came close. Telecoms were legally required to store those data for six months and hand them over to various government authorities on request. For those who are interested in EU and German politics, it was called "Vorratsdatenspeicherung" and initiated by an EU directive.

Some civil rights activists sued in the Bundesverfassungsgericht (highest German court, hears only constitutional cases). The court found that the intimidation factor of being watched is sufficient to suppress the exercising of rights to free speech. The decision of the court was that the law that mandated the "Vorratsdatenspeicherung" is unconstitutional and invalid.

Re:Why First Instead of Fourth?

[someSnarkyBastard]

Because they can look at those graphs and decide that you are now a Person of Interest due to said associations. It's like Seven Degrees of Kevin Bacon but with SWAT teams and Spooks. You talk to someone who talks to someone who talks to someone who makes an anti-govt comment and now you are guilty by association. For all we know you could be part of a terrorist cell with that person! Clearly, We the Government must now spy on you to ensure that you and your dirty anti-American friend of a friend don't foment some plot against the interests of the United States.

Re:Why First Instead of Fourth?

[kermidge]

1. Asked and answered several times upthread.
2. Please do consider the phrase "chilling effect" as has been done in the courts for at least over the course of the past hundred years or so, indeed, all the way back to the several conventions preceding the writing of the constitution.
3. What? Are ye daft?

Re:Ubiquitous Franklin quote

[lister king of smeg]

A republic if you can keep it.

List of plaintiffs

[gnujoshua]

The plaintiffs include:

• First Unitarian Church of Los Angeles
• Bill of Rights Defense Committee
• Calguns Foundation
• California Association of Federal Firearms Licensees
• Council on Islamic Relations
• Franklin Armory
• Free Press
• Free Software Foundation
• Greenpeace
• Human Rights Watch
• Media Alliance
• National Organization for the Reform of Marijuana Laws
• Open Technology Institute
• People for the American Way, Public Knowledge
• Students for Sensible Drug Policy
• TechFreedom
• Unitarian Universalist Service Committee.

Easy to Abuse

[PineHall]

My big concern is how easy it is to abuse this information in big ways.

"Mr President, we have information from an anonymous source (wink, wink) that you opponent is talking to Joe Smith. Now we know (wink, wink) that Joe has some connections to some shady characters. Your official reelection campaign does not need to worry about this. I am going to pass on this information to some of your supporters and they will break the news with some attack ads."

That temptation is use this information to gain an advantage is great. The argument that it will only be used to fight terrorism assumes that those with access will always work for the good of all and ignore any personal advantage they could gain. We all are by nature selfish and will usually act to our advantage. That bunch of good old boys that will not always do the right thing, especially since they operate in secrecy with minimal checks. It is too easy to abuse this information.

Donate, donate, donate

[Intrepid imaginaut]

Put your hands in your pockets ladies and gents, girls and boys, support the cause with your monies. Let's bring these dogs to heel.

Just like where I've left my car keys

[bytesex]

The NSA already knows the outcome of this trial.

Re:Ubiquitous Franklin quote

[CanHasDIY]

I prefer this angle:

Liberty is guaranteed by the Constitution; safety and security are not.

Re:Well...

[CanHasDIY]

Ace Ventura said it best:

"That's none of your damn business, and I'll thank you to stay out of my personal affairs."

Re:Ubiquitous Franklin quote

[Antipater]

OK, I read it. So he was talking about surrendering liberty to a wealthy family, rather than to a government entity. It's still a relevant quote.

The next NSA leak

[alispguru]

... needs to be the metadata of phone records for Congresscritters, and their staff. They're already required to log physical visits by lobbyists - seeing who calls whom during breaks in legislative sessions would be even more interesting.

Maybe that would convince them that easy global access to traffic analysis is too dangerous for routine government access.

Already tried, complete fail

[pongo000]

In dismissing the case, the court agreed with the precedent set in two other cases, which basically said that Americans donâ(TM)t even have the right to sue their government over its surveillance program, unless they can prove that their communications were intercepted. Of course, thatâ(TM)s essentially impossible since the program is classified and you canâ(TM)t use classified documents in court, even if you somehow got your hands on them.

http://www.salon.com/2013/06/10/why_you_cant_sue_the_government_for_spying_on_you/

Re:Already tried, complete fail

[Anonymous Coward]

And that case, Jewel -v- NSA, was just resurrected after the court accepted that Snowden's leaks, that they are essentially spying on everyone, are enough evidence to show that anyone and everyone has locus.

Settled? I don't think so!

[mendax]

This has already been settled in court. If you can't prove that you were harmed by a secret program, you don't have standing to sue. (Regardless of the fact that you can never prove that you were harmed because, you know, it's a secret)

Technically true but there is ample Supreme Court precedent from the civil rights days that says, more or less, the fact that the government knows who you associate with harms you. I refer to you NAACP v.Alabama, 357 U.S. 449 (1958) which made it clear that people had the right to associate anonymously which was echoed a few years later in NAACP v. Alabama ex. rel. Flowers, 377 U.S. 288 (1964). I believe you will agree that the NSA collecting this information the way it does makes anonymous telephonic association for legal purposes impossible.

Re:Ubiquitous Franklin quote

[Thud457]

I like dirty French whores!

-- Ben Franklin

A daily dragnet is not reasonable

[sjbe]

The fourth amendment's applicability is only certain in the minds of privacy advocates.

The fourth amendment's applicability hinges on the word "unreasonable" in the first sentence. The question is whether the NSA's activities constitute a reasonable search. This can be debated but I have heard no argument yet that convinces me that the NSA has not crossed the line into conducting an unreasonable search. And since they have managed to keep everything a secret I can't even prove I have standing in a court of law to sue for a violation of my rights.

The NSA's sniffing is legally comparable to a police dragnet checking door-to-door for a suspect - it infringes privacy, but the impact on any particular person's life isn't unreasonable.

When the police are looking for a suspect they are looking for a specific person and they do not continue to infringe upon your person or property indefinitely and in secret. The NSA's program would be like the police showing up daily and rooting through your mailbox and phone bills looking for information that might incriminate you without any warrant or even probable cause.

Re:Happy Tuesday from The Golden Girls!

[CRCulver]

You must be new here.

Correct but hard to prove

[sjbe]

The instant they broke the law, I became an injured party. Ignoring the 4th is breaking the law, no matter how 'legal' you make it.

While I agree with you, that argument is not sufficient. The government's defense is quite simple. They will ask you to show what specific (to you), quantifiable and irreparable harm you suffered. For better or worse that is not easy to do when all the evidence of harm to you is classified.

Re:Correct but hard to prove

[Wookact]

My answer? It is secret. Government is allowed to keep them, so am I.

Re:Correct but hard to prove

[meta-monkey]

I have suffered mental anguish from the constant fear that, due to governmemt spying, saying things like "I have suffered mental anguish from government spying" will be used against me in legal or financial dealings.

Re:Correct but hard to prove

[0111 1110]

Irreparable? Let's say the government seizes my right leg, amputating it a few inches above the knee because they suspect it may contain a bomb or maybe heroin, but it turns out that they cannot find any sign of contraband. If they offer me a wooden leg to replace my old one does that mean I would not have standing because the damage was "repaired"? What if the leg is a highly sophisticated bionic one and is stronger and more capable than my old one? Most forms of physical harm heal eventually. Some notable exceptions being brain damage or removal of body parts that don't grow back. Irreparable is a very high standard indeed.

Re:Correct but hard to prove

[sjbe]

My answer? It is secret. Government is allowed to keep them, so am I.

Good luck with that. Judges have always been so understanding of snide remarks.

Sometimes Taking a Long Walk(about 5K) is Useful

[LifesABeach]

For me, I just get this feeling that the fear mongers are truly clueless. That Machiavelli, and Sun Tzu are just shaking their heads. I don't necessarily agree with everyone, but I've found it beneficial to listen to others grievances; then adapt accordingly.

I will say this, "I find it hard to trust human preditors."

Re:Settled? I don't think so!

[Jane Q. Public]

" I believe you will agree that the NSA collecting this information the way it does makes anonymous telephonic association for legal purposes impossible."

AND... the Supreme Court itself has ruled that you have a Constitutional right to privacy, even though it is not explicitly stated in the Constitution, because without privacy and anonymity the other freedoms are impossible.

They stated in so many words that without the ability to express yourself privately and anonymously, a workable democracy cannot exist. For just one example, it would be impossible to express a political opinion without fear of reprisal.

Combine that with what you have pointed out, and any individual who has been targeted by these programs, ever, has a solid claim to damage.

It saddens me a great deal that our Government has been trying to turn the U.S. into another Soviet Union. It didn't work there... it won't work here.

Too big a bite.

[westlake]

"The Washington Post reports that the EFF has filed suit against the NSA in Federal Court in San Francisco, on behalf of multiple groups (court filing). Those groups include, 'Rights activists, church leaders and drug and gun rights advocates.'

There are reasons why the federal courts do not like class action lawsuits.

It all goes back to the old notion of "cases and controversies. "

That there should be a clearly defined plaintiff with a clearly defined grievance and an advocate that represents his interests and his interests alone.

Remedies can be tailored to the individual and are likely to achieve some substantial, measurable, result.

The class action that emerges naturally from the bottom-up as the common elements in many cases are exposed in court has earned some credibility. The lobbyist ---the self-starter ---who claims to represent everyone who walks on two feet or four does not.

They can't do it for free

[cbhacking]

If you support things like this, take the time to send a donation to the EFF over this! They are largely funded by concerned citizens such a ourselves. There are many ways to send such donations - obviously through their website, but also while doing things like buying Humble Bundle games or attending DEF CON in a few weeks - and this is an excellent time to show your support.

You, personally, can help fight these abuses. That's what donating to the people filing lawsuits like this does: it helps promote our position in this fight.

Federal programs and federal lawyers are paid for with taxes. Legally speaking, you don't get to decide what those taxes go toward. However, you can choose to pay a bit more to help groups like the EFF fight against such misuse of your funds!

Re:They can't do it for free

[Zynder]

I would love to donate to thier cause but then I'd be put on a list for increased surveillance because I sided with someone the gov doesn't like. Sounds like tin foil hattery but then so did PRISM until it came to light....

Re:They can't do it for free

[Zynder]

No need to reply to my original post. I saw your retort several posts after I made that one.

Re:They can't do it for free

[cffrost]

I would love to donate to [their] cause but then I'd be put on a list for increased surveillance because I sided with someone the gov doesn't like. Sounds like tin foil hattery but then so did PRISM until it came to light...

As far as I understand the programs that we know about, the default surveillance level is so extensive that any triggered increase would necessitate physical tracking (e.g., FBI GPS, etc.) and/or manual analysis (e.g., a human listening to your calls, reading you email, etc.) — things that (presently) aren't feasible to perform against the large number for people that are supporting the.

Further, I believe that from the government's perspective, donating to ACLU, EFF, et al. is certainly considered more benign than participating in a protest or joining a class-action lawsuit against them. There are ways to transfer donations anonymously, if you're so inclined (which, for the record, I am). If you have a friend or family member who doesn't wear a foil* hat, I bet one of them would be willing to send a donation on your behalf in exchange for a small fee or out of the goodness of their heart.

* Aluminum foil; I call bullshit on all claims of tin foil hat ownership.

Re:They can't do it for free

[shutdown -p now]

While you're at it, send some to ACLU, as well - they have been pestering the govt with disclosure requests about this crap for a long time now.

Re:Ubiquitous Franklin quote

[cold fjord]

On the other hand, defense of the nation is a Constitutional responsibility of the Federal government. Lose enough security and your liberty will follow.

Re:Well...

[cold fjord]

Well, what's wrong with actually having anything to hide?

As a general matter maybe nothing, at least as far as simple privacy goes. The problem comes in when what is being hidden results in something like this or that . Those show the rights of American citizens being violated. Sadly, few people on Slashdot seem to think there is anything wrong with that, but some are at least willing to bid them to die well.

Another lost piece of wisdom from the Revolution:

We must all hang together, or assuredly we shall all hang separately. -- Benjamin Franklin

Is it time? We The People v US Government

[turp182]

I'm not sure that specific organizations being involved is the best approach, especially considering the post by mendax above (how on earth can I link to that specific post???) which specifically mentioned that knowing who you associate with can harm one (metadata) via two Supreme Court cases from the civil rights period.

Given what Snowden has exposed (hero and patriot in my opinion), is it time for We The People v. The United States?

Want metadata, get a warrant. 4th, 1st, 9th (rights not enumerated, but the 4th is the key), and 10th amendments (a state should be able to prevent such monitoring) apply. The Constitution doesn't mention secret courts, with citizens unable to defend against secret actions and data collection.

And the court history that mendax pointed out (Thank you) only further the need to pursue the issue.

Secret spying on citizens, including associations, would seem to be in clear violation of the Constitution. The Oath is a short passage, but its sanctity is critical, and tarnished, if not ignored.

I don't expect much from my government. At a minimum I expect the government to respect and adhere to the Constitution and their Oaths. It appears they have not respected either.

This saddens me.

Re:Is it time? We The People v US Government

[turp182]

Replying to myself, regarding the end:

It appears they have not respected either. And the level of adherence to the Constitution or their Oaths is secret.

Re:Is it time? We The People v US Government

[Zynder]

Linking the specific post is as easy as clicking the number in the parenthesis after the time/date stamp in the title bar and then copying that pages address into your link. The post you just made is #44304295 so to get it you would a href ="http://yro.slashdot.org/comments.pl?sid=3981101&cid=44304295" which results in This.

Re:Happy Tuesday from The Golden Girls!

[Rod Beauvex]

woosh

Re:Settled? I don't think so!

[0111 1110]

If what you wanted was to make as many people as possible as miserable as possible, to maximize the per capita poverty, and to have arbitrary control over nearly every aspect of their lives then the Soviet Union was very successful. For the leaders. To Stalin I'm sure it seemed to work quite well. It's all a matter of perspective.

Re:Settled? I don't think so!

[Jane Q. Public]

"For the leaders. To Stalin I'm sure it seemed to work quite well. It's all a matter of perspective."

I think "working" for one person or a few people, but nobody else, pretty much still means that it didn't work.

Didn't even finish reading TFS...

[int19]

...before "FUCK! FINALLY!" were out of my mouth. Good luck to my American friends.

MOD UP

[Zynder]

Wow. This is truly a bipartisan effort. The enemy of my enemy is my friend. You're the only person here who listed this. My mod points expired yesterday. Someone else throw this guy a point!

Re:Sometimes Taking a Long Walk(about 5K) is Usefu

[Zynder]

While that whole statement seems fitting to your username, I am finding it hard to see what you're saying. Care to clarify in a less philosophical manner?

Indeed!

[Zynder]

Finally, the great TLA war.

We could even call it the GTW just to make talking about it easier!

Re:OOOOOOOOO FAP FAP FAP

[cffrost]

What the fuck does that statement even mean? How does jacking off have anything in common with telling authorities to stop [oppressing] us? You're the moron.

Support for authoritarian regime + B&D fetish?

James Madison was a genius.

[MachineShedFred]

The 9th and 10th amendments were specifically inserted to limit the Government's ability to constrain rights, and the Government's enumeration of powers. Madison actually had a list of 40+ rights he wanted in there, and this was his way to see that those and many others were protected for all time.

Unfortunately, everyone seems to forget these amendments exist.

Re:Ubiquitous Franklin quote

[CanHasDIY]

On the other hand, defense of the nation is a Constitutional responsibility of the Federal government. Lose enough security and your liberty will follow.

Yea, mind showing me precisely where in the Constitution the federal government is given the specific power to have a secret judiciary and perform covert surveillance on the American people, in flagrant violation of the 4th Amendment?

I won't hold my breath - don't have time for passing out while waiting.

Re:Sometimes Taking a Long Walk(about 5K) is Usefu

[LifesABeach]

It appears that more have been hurt by being told the simple truth of data gathering, then by being actually hurt, by data gathering.