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NSA's Legal Win Introduces a Lot of Online Insecurity

Posted by timothy on from the or-did-you-think-the-state-was-your-friend? dept.

Nerval's Lobster writes "The decision of a New York judge that the wholesale collection of cell-phone metadata by the National Security Agency is constitutional ties the score between pro- and anti-NSA forces at one victory apiece. The contradictory decisions use similar reasoning and criteria to come to opposite conclusions, leaving both individuals and corporations uncertain of whether their phone calls, online activity or even data stored in the cloud will ultimately be shielded by U.S. laws protecting property, privacy or search and seizure by law-enforcement agencies. On Dec. 27, Judge William H. Pauley threw out a lawsuit filed by the American Civil Liberties Union (ACLU) that sought to stop the NSA PRISM cell-phone metadata-collection program on the grounds it violated Fourth Amendment provisions protecting individual privacy and limits on search and seizure of personal property by the federal government. Pauley threw out the lawsuit largely due to his conclusion that Fourth Amendment protections do not apply to records held by third parties. That eliminates the criteria for most legal challenges, but throws into question the privacy of any data held by phone companies, cloud providers or external hosting companies – all of which could qualify as unprotected third parties."

16 of 239 comments (clear)

  1. The insecurity right now by Anonymous Coward · · Score: 5, Insightful

    The insecurity is on the side of the NSA.
    They wouldn't go through such hoops if we didn't have the most powerful freedom tool ever, namely the Internet.

    Use it properly and they shall vanish.

    1. Re:The insecurity right now by Anonymous Coward · · Score: 5, Insightful

      Name a single innocent person who has been affected by the NSA.

      Just about everyone in the US, unless you believe that freedom and the constitution don't matter. You also can't disregard future abuses, and as history shows, they're inevitable. You people who believe the people in the government are perfect beings are so disgustingly naive that I'm not sure how you even exist.

    2. Re:The insecurity right now by deconfliction · · Score: 4, Insightful

      The insecurity is on the side of the NSA.
      They wouldn't go through such hoops if we didn't have the most powerful freedom tool ever, namely the Internet.

      Use it properly and they shall vanish.

      You are right. But the problem is that the ISPs will not allow you to use the internet properly (e.g. hosting your own data on your own server at home, thus giving it the strongest possible U.S. 4th ammendment 'papers' protection.

      http://cloudsession.com/dawg/downloads/misc/kag-draft-2k121024.pdf
      http://arstechnica.com/information-technology/2013/07/google-we-can-ban-servers-on-fiber-without-violating-net-neutrality/
      https://www.eff.org/deeplinks/2013/08/google-fiber-continues-awful-isp-tradition-banning-servers
      http://crossies.com/pissed.html
      http://arstechnica.com/information-technology/2013/10/google-fiber-now-explicitly-permits-home-servers/
      http://www.mcclatchydc.com/2013/08/01/198327/googles-call-for-open-internet.html

    3. Re:The insecurity right now by Anonymous Coward · · Score: 5, Insightful

      Freedom is more important than safety. Remember how this is supposed to be "the land of the free and the home of the brave"? No? Then perhaps you're too trusting of the government.

      History also shows that invasions, terrorism, and spying against our country are inevitable.

      Such is life. In order to be free, we have to take some risks. That's what happens when you're free.

      I'll take those risks over your police/surveillance state any day.

      The constitution's meaning isn't determined by what is in your head.

      No, it's determined by the constitution. Try reading it sometime, and while doing so, try to avoid letting government propaganda destroy your ability to interpret it properly.

    4. Re:The insecurity right now by Anonymous Coward · · Score: 5, Insightful

      Oh, look. An NSA shill posting AC on Slashdot. Didn't see that coming!

      Name a single innocent person who has been affected by the NSA.

      Besides everyone that has the constitutional right to not be searched without probably cause and warrant? How about the companies that were being spied on for economic purposes? Were they big winners from that? No? How strange.

      How about the big tech companies (such as anyone in cloud computing or cryptography) that took a major hit as a result of the leaks? You think they are happy that they are losing money now that people know how insecure these systems really are? How about Google/Yahoo/Microsoft/etc. that are suffering the same backlash on top of needing to invest a lot more resources to fix holes that the NSA was exploiting? What about RSA?

      How about Lavabit and Silent Circle? These are just two examples of businesses that were dismantled because of legal pressure. They are completely legal businesses.

      How about anyone that isn't actually doing anything wrong, but our government decides to harass/blackmail/defame anyways? We know that the NSA will find your porn and be more than happy to tell everyone about it. Blackmail is NOT OK!

      We also know that the NSA has been writing and distributing malware. How about TorMail or any other (legitimate) service provided by Freedom Hosting? We know that the FBI confiscated the servers, but the NSA helped with installing malware on any connection and siphoning data regardless of whether or not the user was attempting to access a legal service or not. Hell, we even know that the NSA took part in hacking consumer Tor nodes to initiate a MITM attack in the hope that they might be able to track someone unrelated.

      I think I've made my point. I could keep going, if I had to. There is a hell of a lot of people being wronged by this program, but lets turn your own game on you.

      Name a single innocent person who has been affected by the NSA.

      It's your turn. Name a single person or incident that has been stopped, hindered, or investigated in relation to terrorism from the NSA's programs. Trick question, we already know that there isn't any These programs have nothing to do with terrorism, so get your head out of your ass and stop pretending that it's OK for the government to infringe on our rights for their own personal gain.

    5. Re:The insecurity right now by Anonymous Coward · · Score: 3, Insightful

      That's paradoxical. How could something that's blatantly unconstitutional only be constitutional whenever the Supreme Court feels like getting around to it? We do such things because it's the 'best' way we knew of, not because the Supreme Court is automatically right or everything is automatically constitutional. The Supreme Court has even overruled itself in the past. In reality, when people say that something is unconstitutional, they're saying that it violates the constitution. You can try as much hairsplitting and appealing to authority as you like, but you're not going to convince me that what's happening is anywhere near constitutional. Give it up.

      I would think people living in a country that opposes blind trust of authority figures would understand that much.

    6. Re:The insecurity right now by lister+king+of+smeg · · Score: 4, Insightful

      History namely the Boston bombing also show that the government surveillance is utterly useless when applied to terrorism even when it is given plenty of warning by other nations. So if said surveillance is ineffectual against terrorism why is it still need.

      what is it useful for? creating a police state.

      those who would give up essential liberty to purchase a little temporary safety deserve neither

      No where in the constitution does it say that it is governments job to keep me safe, it is my job to keep me safe, it is the governments job to ensure my freedoms and liberties are preserved not to infringe upon freedoms themselves.

      --
      ---Saying gnome 3 is better than windows 8 not so much a compliment as it is damning with light praise.
    7. Re:The insecurity right now by Gr8Apes · · Score: 5, Insightful

      A constitution by its very definition expresses what the government can do and what the people cannot do. Any legislation that is passed either gives the government powers or restricts the people from doing something. The government is only allowed to do what the laws say it can do. The people can do anything they want that is not explicitly against the law. To protect the people from 1 or 2 branches of the government from getting out of control the Judicial Branch was given absolute authority over all laws.

      The Constitution was designed to explicitly state what the federal government could do. It left everything else to the states and the people, with the exceptions that there were certain things that even the states could not overrule, namely, those enumerated in the Bill of Rights. Within those constraints, the government should have no additional powers without an amendment. Collecting all data is an expansion.

      --
      The cesspool just got a check and balance.
    8. Re:The insecurity right now by Creepy · · Score: 4, Insightful

      let's not forget that the NSA's charter explicitly prohibits them from spying on Americans, which they've admittedly done with this program (including American to American communications, which are not exempted by the Patriot act).

      My understanding is this program has been invaluable to the FBI for getting warrantless information on suspected drug offenders or dealers (where they typically have to request a warrant), but I've heard nothing about it stopping terrorism in any way.

  2. How about that rented storage? by Anonymous Coward · · Score: 5, Insightful

    If the fourth doesn't apply to records held by third parties... what if your records are in a rented storage unit or a bank safety deposit box? If your property is held by a third party (your money in the bank), do constitutional protections against the government just seizing your money also not apply?

    1. Re:How about that rented storage? by sribe · · Score: 5, Insightful

      Uhm, worse, what about people who rent rather than own? If you live in an apartment owned by someone else, do you have any rights???

    2. Re:How about that rented storage? by Jane+Q.+Public · · Score: 4, Insightful

      "The constitution can only cover so much in modern times."

      I'm not sure if this is what you meant, but I don't see this as a deficiency in the Constitution. The Constitution says that people shall be secure in their "papers, and effects". Courts have for the most part ruled that modern communications are equivalent to "papers and effects". Some exceptions were made later (like the "3rd party" rule this judge used), but those exceptions are pretty clearly obsolete today.

      What is really important is the "expectation of privacy" that people have with their communications. They expect cell phone calls to be private. (And I would argue that they also expect their phone call "metadata" to be private too.) They expect emails to be private (or should).

      Courts are supposed to use the "reasonable man" or "reasonable person" principle: what would a reasonable person do, or expect? Using that standard, I think it is pretty darned clear that the vast majority of people DO have an expectation of privacy. And if most people expect it, it is by definition "reasonable".

    3. Re:How about that rented storage? by NicBenjamin · · Score: 5, Insightful

      Under the fourth amendment ownership of the building is irrelevant. The Fourth protects your person, papers, house, and effects. If you have a legal right to store papers you own in a place then they have the same Constitutional protections regardless of who actually owns the building. If you don't have a legal right to store them there -- maybe you leave the book where you record your illegal bets in some guys house and he finds it -- then the owner can rat your ass out and you get no Fourth Amendment protections. OTOH if the owner chooses not to rat you out the police need a warrant to search his house before they can get the book.

      The debate in this case is who actually owns these records. The government is arguing that since these records are not used by you, but are generated by a private company as part of it's business, they aren't actually your records. Just as the government doesn't need a warrant to read who has a tab at the local bar it doesn't need a warrant to read the data on who you called last week.

      Privacy advocates are arguing otherwise. The fact you think your records are yours is extremely important, and the NSA snooping has to stop.

      In legal terms the simple fact is that the only judges who matter are not likely to side with privacy advocates, because two of them are Obama appointees unlikely to argue his attempt to get the program covered by getting the FISA Court to issue warrants was evil Fascism, a third (Roberts) appointed the FISA guys who issued said warrants, and four more are aligned with the guys who thought that we didn't warrants in the first place. Five votes to overturn the NSA will be tricky.

  3. In Soviet Russia ... by nbauman · · Score: 4, Insightful

    During the cold war, we heard stories about how the Communist governments monitor their citizens.

    Now our government is monitoring us in ways that the East Germans would envy.

    Here's something useful you can do:

    -- Find out how your Congressman and Senators voted on these policies.

    -- Add it to their Wikipedia page.

    -- Don't vote for them if they don't support the Fourth Amendment.

  4. Re:Can't rely on the law then by cold+fjord · · Score: 3, Insightful

    Even a casual observer can figure out that SCOTUS has been ignoring the Constitution.

    Well then, it's a good thing we have "casual observers" to tell us what is and isn't constitutional. Lawyers and judges are clearly overrated. Any opinion is as good as any other.

    --
    much of left-wing thought is a kind of playing with fire by people who don't even know that fire is hot - George Orwell
  5. Re: by Anonymous Coward · · Score: 3, Insightful

    i suppose being the girl/boyfriend of a terrorist does make you a valid target.

    Being the girl/boyfriend of a NSA Employee does not make you a valid target.