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NSA's Legal Win Introduces a Lot of Online Insecurity
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."
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.
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?
Obviously, if you don't want the NSA to read your data, make sure they can't read them. Make sure your data is not stored outside your control by someone who could at least in theory read it (like Lavabit). Make sure the data is not stored in the USA at all if you can avoid it.
Due to the scale of NSA data collection, it is safe to assume that the NSA has data about every single US judge.
The data NSA has may render the judges unable to render impartial judgement.
A bi-partisan political review of all NSA data about every US judge should be conducted to verify that the judges are in the position to do their jobs.
By now the entire US legal system might be corrupted by the virtually unlimited NSA data collection.
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.
It's just wrong, that's all. Wrong because our emails are *clearly* the "papers" mentioned in the Constitution. If there's a law that makes 3rd party possession of same somehow the equivalent of "it suddenly not being yours" then it's THAT law that has to go. This is how it is in most of Europe BTW. YOU control your phone records, not Verizon.
I could almost live with TIA if I thought that it would only be accessed via a court order, but that's not what we have. What we have is secret FISA orders, executed in secret, using secret criteria in accord with secret interpretations of secret executive orders.
I sympathize with this judge's concerns, I do, but the real world consequences of what they're doing are more likely to be worse than the real world consequences of stopping them from doing it, even if we have another 9-11 every year.
Our democracy will not survive if the government can data mine all our "anonymous" data until programs it wrote decide that we fit a "profile" and THAT itself constitutes "reasonable suspicion". This can be used to stifle all dissent, and will be used for exactly that, starting, obviously, with people who speak out against the legitimacy of this process in the first place. A guy like Howard Zinn would just be destroyed by this.. we wouldn't have legitimate dissent in this nation.
Here's something that should help people think clearly on this topic. The NSA line operators and management REFUSED to permit the NSA to apply the same level of monitoring to THEM as they apply to us. They didn't want Congress to second guess them or know what they were doing.
(Binney) ".. also explained that NSA never developed and implemented technology in order to have the capabilities to track activities by employees on the agencyâ(TM)s systems because of two groups of people: the analysts and management.
The analysts âoerealized that what that would be doing is monitoring everything they did and assessing what they were doing. They objected. They didnâ(TM)t want to be monitored.â
Management resisted because it meant one would be âoeable to assess returns on all the programs around the world.â It would be possible to âoelay out all the programs in the world and map [them] against the spending and the return on investment.â
It meant the agency would be âoeexposed to Congress for auditing,â Binney added.â Management did not want that."
From:
http://dissenter.firedoglake.com/2013/12/27/interview-with-nsa-whistleblower-bill-binney-afraid-were-spreading-secret-government-around-world/
But this is the ONE thing that MUST be implemented. If an NSA operator cuts a fart, I want Congress to be able to know what he had for lunch. Unwatched watchers cannot be permitted to exist. Period.
At the heart of what's going on here is the people at the NSA are looking into their own hearts and deciding that they're all right and the American public has nothing to fear from them or their intentions. Bully for them, I'm sure it's true, but they won't always be there.
It's not about them or their intentions. It's about the institution, the process, *the machine* and how we're building that machine.
You can't say to yourself, as an NSA employee, by way of assuaging your own secret apprehensions, "Well, if push ever does come to shove, if it came right down to it, an unconstitutional, openly fascist-level of abuse would just never happen because WE'D never permit it". At least, you can't tell yourself that and also bash guys like Snowden and Binney because THOSE guys , whom you hate so much they make you grind your teeth , they're exactly the hypothetical WE you posit in the above safeguard. It doesn't look any different that THIS .. THIS THIS that is before your ey
"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.
I call BS. Nowhere in the article did the judge even mention the Constitution. From the information provided in the article, the judge is obviously either paid off or incompetent. He states that
In the 54-page opinion issued in New York, Pauley said the sweeping program "represents the government's counter-punch" to eliminate al-Qaeda's terror network by connecting fragmented and fleeting communications.
which has nothing to do with legally acquiring evidence or the Constitution, and
"There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks," he wrote.
which once again was irrelevant to the question before the court. Just because the government has NOT YET been caught using the data illegally has nothing to do with it being illegally acquired.
The judge also quotes extensive justifications from the Patriot Act, which last I checked, is NOT part of the Constitution.
The question is whether Smith v. Maryland -- which was about one order to put a pen register on one phone based on suspicion (but no warrant nor probable cause) -- is distinguishable from this case where every phone record from every phone in the country with no particularized suspicion at all. Pauley explicitly ruled "no", the other court ruled that it was distinguishable.
If the NSA metadata collection is not distinguishable from Smith v. Maryland, then the slippery slope argument is not a fallacy.
Nobody believes that since the Republican-majority Supreme Court handed the election over to the Republican candidate in Bush vs. Gore.
So that's what really did it for you? That's when you started doubting the system, when the Supreme Court upheld the legal principle that you can't keep changing the rules of an election after the voting until the other guy wins?
Scalia on Bush v Gore: ‘Get Over It’
Starting in the 1970s, I worked as a paralegal in some law firms on a different cases, including a few important pro bono stuff. [Long legal experience omitted] There was a big debate at the time about whether the law was just enforcing the privilege of the rich, or whether it actually promoted justice. At one point, they had me convinced that there was some justice in the system, after we won some abortion cases and forced some cities and states to provide housing for the homeless, as they were required to do in their constitutions (which they had ignored). The civil rights laws finally helped negroes fight for right to vote in the South without getting killed https://en.wikipedia.org/wiki/Mississippi_civil_rights_workers'_murders as often, and finally gave broad protection to black people and women as well.
So the optimists had me convinced. The law could sometimes, imperfectly, provide justice. American corporate capitalism seemed to be doing pretty good too -- good pay, secure jobs.
Then came Ronald Reagan. The gentleman's agreement up to then in Congress was that each president would choose a distinguished legal scholar and jurist who was impartial and respected by all sides. Reagan openly announced that he would be appointing justices that would give conservatives the results they wanted. https://en.wikipedia.org/wiki/Ronald_Reagan_Supreme_Court_candidates He deliberately chose young justices (rather than the customary older, experienced justices) to end the normal rotation in the Court. I followed this on the Wall Street Journal editorial page, and they were open about what they were trying to do -- which was pack the court. And yes, Scalia was one of the nastiest bullies of all, just making decisions based on his own opinion and coming up with excuses to ignore the law. Since then it's gotten worse.
There were many opinions of the Supreme Court that I didn't like, but I never expected to see something like Bush vs. Gore. The law in Florida was that votes were to be counted according to the intent of the voter. In order to believe that the voters intended to vote for Bush, you'd have to believe that 3,400 Jewish voters intentionally voted for Pat Bucanan, a prominent critic of Israel, instead of Gore and Lieberman. Even Bucanan didn't believe that. The 5 Republican justices ignored Florida law, and the facts, to hand the election to Bush. Since then they've been voting the Republican party line, which has moved far to the right.
So I had to admit that the Marxist cynics were right. The law enforces the privileges of the powerful. No money, no justice.