Privacy Oversight Board Gives NSA Surveillance a Pass

An anonymous reader writes There's an independent agency within the U.S. government called the Privacy and Civil Liberties Oversight Board. Their job is to weigh the benefits of government actions — like stopping terrorist threats — against violations of citizens' rights that may result from those actions. As you might expect, the NSA scandal landed squarely in their laps, and they've compiled a report evaluating the surveillance methods. As the cynical among you might also expect, the Oversight Board gave the NSA a pass, saying that while their methods were "close to the line of constitutional reasonableness," they were used for good reason. In the completely non-binding 191-page report (PDF), they said, "With regard to the NSA's acquisition of 'about' communications [metadata], the Board concludes that the practice is largely an inevitable byproduct of the government's efforts to comprehensively acquire communications that are sent to or from its targets. Because of the manner in which the NSA conducts upstream collection, and the limits of its current technology, the NSA cannot completely eliminate 'about' communications from its collection without also eliminating a significant portion of the 'to/from' communications that it seeks."

Comments

Shocking

[Kardos]

"Government declines to voluntarily give up its power, news at 11!"

What exactly was the expected outcome again?

Re:Shocking

[Anonymous Coward]

Obama was supposed to fix the world remember? They gave him the Nobel prize for being black, I mean for promoting peace before he even did anything. This must somehow be Bushes fault. He forced Obama to expand the powers of the NSA.....

Re:Shocking

[Anonymous Coward]

I don't know why this is modded flamebait. It's 100% correct. Until people get seriously pissed at both parties things have no chance of changing. If you're unwilling to vote third party then how the fuck do you expect to rise up if there is a revolution? People need to be angry.

Re:Shocking

[I'm New Around Here]

Well flamebait and truth are not mutually exclusive.

Also, see my sig.

Viva la Revolución!

Re:Shocking

[Jane Q. Public]

What exactly was the expected outcome again?

It's not hard to show that this BS excuse they use could lead to never-ending expansion. That's why we must stop it about 10 years ago.

Re:Shocking

[jeIlomizer]

"We must give up our freedoms for safety!" -The land of the 'free' and the home of the 'brave'.

Huh. Strangely, I don't see anything in the constitution that allows for this. And strangely, that doesn't sound like something free or brave people would say. Hm...

Re:Shocking

[ozmanjusri]

What exactly was the expected outcome again?

audio quid ueteres olim moneatis amici,
"pone seram, cohibe." sed quis custodiet ipsos
custodes? cauta est et ab illis incipit uxor.

Re:Shocking

[Anonymous Coward]

i for one demand a recall, i think the oversight board was over-looking something.

Re:Shocking

[Anonymous Coward]

> They gave him the Nobel prize for being black, I mean for promoting peace before he even did anything.

They gave it to him for not being Bush. That's how unhappy non-americans were with how Bush handled international affairs.
Obama should have turned it down. But that's a hard thing to do. Especially given that turning it down would have made a lot of people feel insulted.

Re:Shocking

[newslash.formatblows]

It's nice to see that a good old Anonymous Coward racist rant can still be modded up to +5.

Re:Shocking

[Anonymous Coward]

Please explain how that was not ad hominem.

Re:Shocking

[Anonymous Coward]

Only bureaucrats can manage to say, more or less, it's wrong, but it's ok because we said so.

Re:Shocking

[rezme]

I think it was an intentional oversight...

Not surprised

[NormalVisual]

"Yeah, they broke the law, but they had good reasons!" Another useless government agency.

Re:Not surprised

[amicusNYCL]

Their job is to weigh the benefits of government actions — like stopping terrorist threats — against violations of citizens' rights that may result from those actions.

Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."

Because of the manner in which the NSA conducts upstream collection, and the limits of its current technology, the NSA cannot completely eliminate 'about' communications from its collection without also eliminating a significant portion of the 'to/from' communications that it seeks.

Well, I guess it has to eliminate a significant portion of the "to/from" communications that it seeks, change the manner in which it conducts upstream collection, and develop better technology, then. Right? Or just stay exactly the same and ignore the unconstitutional part of everything?

There's a quote from Benjamin Franklin around here somewhere...

Re:Not surprised

[hamburger lady]

Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that?

just around when the ink dried on the constitution. you don't think this country has a long, long history of violating rights in the name of security?

Re:Not surprised

[aNonnyMouseCowered]

You should blame Google, Facebook and other Big Data companies for making indiscriminate surveillance somewhat palatable to the masses, who'll be thinking, it's okay for Google and Facebook to spy on us merely for profit, so it should be okay for the government to spy on us to prevent (omg) TERRORISM.

Re:Not surprised

[amicusNYCL]

What I think? I think everyone who has been running this country for the past couple decades has been a cunt and deserves to be thrown out on their ass and locked up. That's what I think.

Or juuuuuuuuust anothaaaaaaaa cuntrie.

Re:Not surprised

[russotto]

I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."

Look up the "special needs" exception, used e.g. in the NYC subway search case. It's basically "... but we really, really want to"

Re:Not surprised

[amiga3D]

I totally agree. Why are we paying salaries to a rubber stamp board? Useless as tits on a boar they are. It's not like anyone ever doubted the outcome of this. Nothing like having a government agency to oversee the government agency that oversees the government agency that oversees government agencies. No wonder the country is in debt. The only government agency to call out the NSA has been a few various courts. Not much of that either. It's cool as long as they're after terrorists but when they start going after political opposition groups or start redifining who a terrorist is.....oh wait!

Re:Not surprised

[Anonymous Coward]

Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."

It has been going on, slowly but surely, bit by bit, for decades. In 1990 the Supreme Court ruled that police sobriety roadblocks obviously violated the Constitution, but that the "safety" they provide overrides that violation.

The excuse Chief Justice Rehnquist gave in his majority opinion was that while being stopped at a checkpoint did count as "seizure" under the Fourth Amendment, it is only a "slight" intrusion which must be weighted against the importance of preventing drunk driving and the effectiveness of the roadblocks and therefore not a true violation of our Constitutional rights.

In his dissenting opinion, Justice Brennan wrote, "The most disturbing aspect of the Court's decision today is that it appears to give no weight to the citizen's interest in freedom from suspicionless investigatory seizures."

[[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=496&invol=444]]

Re:Not surprised

[Anonymous Coward]

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ." The operative and contested term being reasonable.

Re:Not surprised

[rtb61]

Those reasons of course being the information the NSA was able to gather about the board :O.

Re:Not surprised

[Anonymous Coward]

I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."

Of course they never say that. They simply construct exceptions out of thin air to allow unconstitutional things to happen. There are tons of such examples.

Re:Not surprised

[Yakasha]

Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."

Why do you think it is sudden? Congress, with the courts approval, have been infringing on Constitutional rights since the Constitution was written. They make exceptions all the time: when you can speak (no "fire" in a crowded theater); when you can assemble (Sorry "Occupy", move along... move along...); which guns you're allowed to buy (all without infringing on your right to keep & bear!); and when a warrant is required to execute you (Drone, zooooom, boom!).

The ends justify the means in each of those cases, so it does now too, and will again in the future.

Re:Not surprised

[Anonymous Coward]

While the findings do seem odd, this is the same group that found the NSA's Section 215 bulk data collection both illegal and unconstitutional, and raised a big stink about it. So they're definitely not a rubber stamp board -- or at least weren't a few months ago.

Anyway, the EFF is chiming in to point out that they didn't start their review process far enough back, and are ignoring the constitutionality of the bulk collection in the first place. I have a feeling this story isn't over yet.

Re:Not surprised

[JoelKatz]

Equating those we voluntarily choose to associate with to those who we are forced to associate with is about as close as you can come to equating guns with arguments. If you don't like Google or Facebook, you don't have to use them. If you don't like the government, you can't exactly choose the other government.

Re:Not surprised

[NormalVisual]

The operative and contested term being reasonable.

Which essentially is what the Fourth Amendment defines.

Re:Not surprised

[NormalVisual]

The excuse Chief Justice Rehnquist gave in his majority opinion was that while being stopped at a checkpoint did count as "seizure" under the Fourth Amendment, it is only a "slight" intrusion which must be weighted against the importance of preventing drunk driving and the effectiveness of the roadblocks and therefore not a true violation of our Constitutional rights.

"Just the tip, okay baby?" as defined by the Supreme Court.

Re:Not surprised

[jeIlomizer]

All that shows is that we're not the 'land of the free and the home of the brave,' and never have been. Of course, things like slavery made that obvious anyway. Our government is and always was full of freedom-hating scumbags.

Re:Not surprised

[BoberFett]

By "good reason" do you suppose they meant "not stopping any attacks on US soil"? Because from where I sit, that seems to be their primary function.

Re:Not surprised

[jeIlomizer]

Even if it didn't, it's plainly obvious that such surveillance would have been made quite explicitly unconstitutional had it been used against the founders, like what basically happened with other issues.

Re:Not surprised

[dnavid]

Their job is to weigh the benefits of government actions — like stopping terrorist threats — against violations of citizens' rights that may result from those actions.

Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."

Ignoring the phrasing, courts have been deciding that since almost while the ink was drying on the Constitution. The problem is that the US Constitution is often ambiguous in its statements, and conflicting (or rather overlapping) in its declarations. For example, the Fourth Amendment states that the right of the people to be secure against *unreasonable* searches shall not be violated, leaving the courts to decide what "unreasonable" means as there is no unambiguous definition of unreasonable in the Constitution. The Supreme Court also ruled that the First Amendment right which prevents Congress from making laws that prohibit the free exercise of religion is not unlimited, even though the text itself contains no exceptions, because to allow otherwise would allow anyone to break any law simply by claiming a religious exception. Courts have also ruled that the right to free speech (or rather the right to be free from governmental restraint on speech) can be balanced against other competing factors, including those that arise from the "necessary and proper" clause of Article 1: Congress can pass laws that abridge speech when it is necessary and proper to their function, such as criminalizing libel, or attempts to incite panic or criminal behavior (the canonical shouting "fire").

It isn't so much that these things are unconstitutional but ok, but rather that no language in the Constitution is interpreted to be absolute and superceding all other statements in the Constitution: courts are required to balance all the rights and responsibilities articulated in the Constitution where their language conflicts. Put simply, there is no Constitutional right to not be monitored that is absolute, that has ever been generally recognized at any time, not even by its framers. Its up to courts to decide when the government can infringe on those rights to exercise their own responsibilities under the Constitution.

If you're looking for an actual case, see Reynolds v United States. On a more related case issue, see Schenck v US where (the) Oliver Wendell Holmes wrote that freedom of speech and the press did not automatically protect speech explicitly intended to incite people to draft dodge at a time of war (its the case people often quote with regard to "shouting fire in a theater"). His decision also noted that speech that might be acceptable at some times may be unacceptable under specific circumstances, implying that Constitutional rights can be balanced against government interest in different ways under sufficiently different circumstances.

Alternatively, see Strict Scrutiny which is one of the standards by which the courts have attempted to balance individual Constitutional rights against Constitutional government interests and responsibilities.

Re:Not surprised

[Anonymous Coward]

A number of the "Founders" voted for the passage of the Alien and Sedition Acts.

Re:Not surprised

[jeIlomizer]

Yes, they were anti-freedom in a number of ways too. What of it?

Re:Not surprised

[jeIlomizer]

Except when you start taking into account the spirit of the constitution. Then this NSA nonsense is screwed. Any judge who says otherwise is complicit in the crimes against the American people, and many of them have been exactly that. There are no excuses, including 'ambiguity.'

Courts have also ruled that the right to free speech (or rather the right to be free from governmental restraint on speech) can be balanced against other competing factors, including those that arise from the "necessary and proper" clause of Article 1: Congress can pass laws that abridge speech when it is necessary and proper to their function, such as criminalizing libel, or attempts to incite panic or criminal behavior (the canonical shouting "fire").

Then they're freedom-hating scumbags, to put it simply.

Re:Not surprised

[penix1]

In his dissenting opinion, Justice Brennan wrote, "The most disturbing aspect of the Court's decision today is that it appears to give no weight to the citizen's interest in freedom from suspicionless investigatory seizures."

The same can be said of random drug tests.

Re:Not surprised

[BlueStrat]

Why do you think it is sudden? Congress, with the courts approval, have been infringing on Constitutional rights since the Constitution was written. They make exceptions all the time: when you can speak (no "fire" in a crowded theater); when you can assemble (Sorry "Occupy", move along... move along...); which guns you're allowed to buy (all without infringing on your right to keep & bear!); and when a warrant is required to execute you (Drone, zooooom, boom!).

The ends justify the means in each of those cases, so it does now too, and will again in the future.

All that shows is that we're not the 'land of the free and the home of the brave,' and never have been. Of course, things like slavery made that obvious anyway. Our government is and always was full of freedom-hating scumbags.

Nothing is ever perfect. The US Constitution sets the standard, or the bar against which the government must constantly be measured against and corrected when government strays/errs.

Through the history of the US, it has been both closer to that ideal and farther away, and in different areas and in different ways to different people at different times. Since government size has expanded so greatly since the 1920s, likewise so has its' power and control over ever more aspects of our lives and control of ever more US business, health, resource, & economic infrastructure. That expands the severity and scope of such bad government behavior.

We are in yet another moment in US history where we must decide how far we allow government power to reach, how many of our choices it can eliminate/control, and how much monitoring & control over our speech and communications it can be allowed to achieve.

Remember; If the capability exists, it will be misused regardless of any laws or oversight put in place. It's human nature, and especially human political nature.

Strat

Re:Not surprised

[shutdown -p now]

It's interesting that you bring up Schenck, since in this context it is in fact a stark example of the abuse of constitutional rights in this country - it was a court decision that, using sophistry, managed to argue for a prohibition of the exact kind of speech (political) that the First Amendment was originally designed to protect. It's a good thing that Brandeburg wiped that abomination out.

Re:Not surprised

[Anonymous Coward]

Their job is to weigh the benefits of government actions — like stopping terrorist threats — against violations of citizens' rights that may result from those actions.

Wait, what? All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said "well, it's unconstitutional, sure, but it's OK because..."

Next time think twice before passing an Ermächtigungsgesetz, I mean PATRIOT act. Once you invite fascism in, it's pretty hard to get rid off again.

Re:Not surprised

[Neil Boekend]

Your freedom to swing your fist wildly about ends at my face.

While I do not approve of the intrusive spying the NSA does there is a good reason to use laws to limit the constitution. You may have the right to bear arms and wear masks, that doesn't mean you should be allowed to walk into a bank with a few friends, all with masks on and AK-47's in your hands.
The world is made of area's of gray. Navigating those grey area's requires a lot of judgement calls. On a government scale you must cross that with incompetence and malice, for both will be present in your workforce. That means the way of the judgement calls is highly flawed.

Re:Not surprised

[jeIlomizer]

Your freedom to swing your fist wildly about ends at my face.

People's freedom to not have their constitutional rights violated is in no way equivalent to them punching your face. Try to keep it relevant, yes?

While I do not approve of the intrusive spying the NSA does there is a good reason to use laws to limit the constitution.

The constitution in the US is the highest law of the land. You cannot use normal laws to limit the constitution. In order to change the constitution, you must amend the constitution, which is a far more difficult process.

that doesn't mean you should be allowed to walk into a bank with a few friends, all with masks on and AK-47's in your hands.

Simply put, if the constitution does not give the government the power to stop people from doing that, then it does not have any legitimate authority to do so.

Re:Not surprised

[NormalVisual]

Their primary function does not and should not supersede U.S. law.

Re:Not surprised

[Sobrique]

There's always always a balance. The police have powers to investigate the innocent. They're innocent because they're - legally - innocent until _proven_ guilty. Which means - by definition - the police are always targeting 'the innocent'. There's a bunch of rules to limit this, including not least a system of warrants - to do certain things to people, you need to be able to convince a judge that they're sufficiently dirty to be worth further investigation. But they're still - in the literal sense - still innocent at that point, because you haven't proven their crime in a court of law.

It's not a perfect system by any means, but it mostly works - _generally_ the bad people get caught and punished, and the good people are protected. But sometimes there are abuses, and part of the point of any system of justices is that it has to accept the inevitable - that sometimes you'll get it wrong.

But it's generally accepted to be one of the least bad options.

Re:Not surprised

[Sobrique]

Well, you can. You get to vote. Or move to another country. Or declare independence. I understand that's worked out well occasionally.

Re:Not surprised

[Jason Levine]

The government even has a system where, for cases where time is of the essence and the threat is high, they can take the action first and get a retroactive warrant later from a court that will essentially rubber stamp anything. However, the government's law enforcement divisions are complaining that even this is too much work. They sound like my pre-teen when he's told to do his homework: "It's too hard! I don't want to do it! I'll do it later! I don't have to do it!!!"

Re:Not surprised

[Jason Levine]

Your freedom to swing your fist wildly about ends at my face.

People's freedom to not have their constitutional rights violated is in no way equivalent to them punching your face. Try to keep it relevant, yes?

I believe he was referring to the previous poster's comment about the government restricting freedom of speech by saying you couldn't yell "fire" in a theater. The point being that all of our rights have limits. Freedom of speech doesn't mean that I can say untrue things about you in a newspaper. That would be libel and would be against the law. You wouldn't be able to get out of a libel lawsuit by claiming "Freedom of Speech." Likewise, you couldn't declare "everyone should track down So-And-So and kill him" and then say "Free Speech!" to get out of it.

We have our freedoms but they aren't carte blanche, they have limits. Typically, the limits of your freedoms ("the right to swing your fist") are when they impede someone else's freedoms ('ends at my face").

Of course, the government is taking these reasonable restrictions and is building upon them until they become unreasonable. (e.g. "Free Speech Zones" to keep protests far from the people they are protesting against.) This doesn't mean that all restrictions are unreasonable, just that we've got to rein in the government's overreach until the restrictions are reasonable again.

Re:Not surprised

[Anonymous Coward]

If I am swinging my fist wildly in my own yard and you come in and get punched that's ENTIRELY on you.

Re:Not surprised

[jeIlomizer]

In the US, the government can only do what the constitution says it can do. Therefore, if it doesn't say a certain right has limits, then it doesn't. If it doesn't give the government a certain power, and the courts say it does, and everyone ignores this blatant violation of the constitution, that *still* doesn't mean the government has the authority to do so. We see the government ignore the constitution all the time, but that doesn't make it right.

This doesn't mean that all restrictions are unreasonable, just that we've got to rein in the government's overreach until the restrictions are reasonable again.

All unconstitutional restrictions are unreasonable.

Re:Not surprised

[Anonymous Coward]

The whole 'you can't yell fire in a crowded theater' is a false meme.

http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater

Re:Not surprised

[phorm]

Actually, if people knew the *true* amount of data many of those companies have they'd likely be appalled, but it's really not that visible. Personally I'm happy for google to know what I'm searching for using their engine, and similarly willing to made a trade-off on facebook status updates etc.
What's not cool - and less obvious - is all the "like" buttons and analytics scripts, apps, etc that are feeding them with people's every little action that brushes upon the online.

Re:Not surprised

[Jason Levine]

If all rights are absolute, how do you balance it when two people's rights conflict? Person A has a right to freedom of speech. So they put a soap box on the sidewalk in front of my house and start shouting religious diatribes 24/7 at my family for not following the "right" religion. Any time I try to leave my house, they block my driveway and shout at me until I go back inside - or until I convert to their religion. There's nothing in the Constitution that says they can't do this so should they be free to do this? What about my right to practice my own religion (or no religion) without being harassed? If I call the police on this person, am I (or the police) violating his freedom of speech by making him stop shouting at us 24/7?

To give another example, I have freedom of speech. Suppose I publish an editorial stating, as fact, that someone committed some serious crimes - crimes that would lead to their being fired from their current job (e.g. claiming a teacher was "touching" her students). Now suppose I had no proof of these allegations. Perhaps I made them up to get at the teacher for giving my kid a bad grade or maybe the teacher cut me off on the road one day. Whatever the reason, I publish these false allegations and the teacher is fired and her life is ruined. Since I have absolute, unrestricted freedom of speech, I can't be sued for libel, right?

Making everyone's freedoms unrestrained would just lead to chaos. There have to be some boundaries where the freedoms intersect. It's just a matter of where do you draw the line.

Re:Not surprised

[jeIlomizer]

There's nothing in the Constitution that says they can't do this so should they be free to do this?

Yes. That's how the constitution works.

What about my right to practice my own religion (or no religion) without being harassed?

I wasn't aware that such a right even existed (except if you mean harassed by the *government*), but that would all depend on what the constitution says at the time. It could be amended if you don't like it.

Making everyone's freedoms unrestrained would just lead to chaos.

So amend the constitution, fool.

Re:Not surprised

[JoelKatz]

Yeah, those things are a lot like choosing not to use Google or Facebook.

Re:Not surprised

[david_thornley]

No, that's precisely what the Fourth Amendment doesn't do.

Re:Not surprised

[david_thornley]

Note that "'fire' in a crowded theater" was originally a description in a ruling against political speech, which is much more frightening.

Re:Not surprised

[amicusNYCL]

I remember when Patriot passed, I was very suspicious of it. It all got rammed through the system a little too easily considering the power it granted to the government. Everyone was so gung-ho at the time though. That also reminds me of when we decided to bail out all the big banks. I was the only person at the dinner table saying that they should be allowed to fail and that other, more responsible, banks would buy up the pieces and life in the free market would go on. Everyone was giving me reasons why that wouldn't work, and then years later they were trying to tell me why the banks should have been allowed to fail.

It seems that people forget about their convictions really easily in the face of extraordinary circumstances. The fact is that those circumstances are the most important time to keep your convictions. Patriot should have never been passed. The promise to repeal it was the entire reason I voted for Obama the first time. Bastard really got me, didn't he?

Re:Not surprised

[Reziac]

An example of how determining guilt is being misused:

Idaho Court Criminalizes Sleeping It Off
http://www.thenewspaper.com/ne...

Re:Not surprised

[Reziac]

"You should not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harm it would cause if improperly administered."
-- Lyndon Johnson, 36th President of the United States

In other words, don't assume YOUR side will always be enforcing those laws you want enacted.

Re:Not surprised

[dnavid]

It's interesting that you bring up Schenck, since in this context it is in fact a stark example of the abuse of constitutional rights in this country - it was a court decision that, using sophistry, managed to argue for a prohibition of the exact kind of speech (political) that the First Amendment was originally designed to protect. It's a good thing that Brandeburg wiped that abomination out.

Brandenburg v Ohio didn't really reverse Schenck in my opinion, it revised the test in a way that actually seems to be more of a case of backing off expansion of Shenck (i.e. Whitney v California) than eliminating it. Holmes in later decisions implied that the wording of the Schenck test to "clear and present danger" intended to be a stricter test than other courts (and even the Supreme Court) applied, and I think would have agreed with the later imminent lawless action test proscribed in Brandenburg.

Having said that, Brandenburg is another example of a case where the Supreme Court was asked to balance state interests with individual Constitutional rights, and even though Brandenburg held that the Constitutional First Amendment rights superceded government interest in this case, its still a case where such balancing takes place. Even Hugo Black (a more strident First Amendment supporter can't be found) believed that falsely yelling Fire in a theater knowing it would cause panic and injury could override First Amendment rights, and he was a First Amendment literalist (meaning: he felt the text meant that Congress was barred from writing any law which restrained speech, period).

Even though Brandenburg supercedes Schenck, I was thinking about the oldest cases where I could find such judicial reasoning for illustrative purposes as to the notion this isn't a recent phenomenon.

Re:Not surprised

[dnavid]

Except when you start taking into account the spirit of the constitution. Then this NSA nonsense is screwed. Any judge who says otherwise is complicit in the crimes against the American people, and many of them have been exactly that. There are no excuses, including 'ambiguity.'

That was not the question posed. The question posed and replied to was "All of a sudden we've decided that violating rights is OK if it makes us more secure? When did we decide that? I don't remember any court decisions that said 'well, it's unconstitutional, sure, but it's OK because...'" The "when" is "since forever."

Courts have also ruled that the right to free speech (or rather the right to be free from governmental restraint on speech) can be balanced against other competing factors, including those that arise from the "necessary and proper" clause of Article 1: Congress can pass laws that abridge speech when it is necessary and proper to their function, such as criminalizing libel, or attempts to incite panic or criminal behavior (the canonical shouting "fire").

Then they're freedom-hating scumbags, to put it simply.

Those freedom-hating scumbags include most of the contributors to the text of the Constitution and the Bill of Rights, and pretty much every judge that has ever served on a federal court. Even Justice Hugo Black, who believed the First Amendment should be interpreted literally to mean Congress could pass *no* law that abridged speech, regardless of government interest, conceded an exception for speech directly intended to incite actions that would likely cause direct harm, i.e. the canonical shouting Fire in a theater, which is an extreme case of balancing government interest in protecting its citizens against the expression rights of its citizens (contextual note for those unfamiliar: the reason why shouting "Fire" in a theater is the historical example is because until the modern era theaters were illuminated by gaslight and contained non-fire proof curtaining for sound baffling. Even a small fire could quickly incinerate an entire theater and kill everyone in it, and such occurrences were surprisingly commonplace in the past: shouting "fire" in a theater in the nineteenth century would likely cause significant death and injury from the predictable panic that would ensue).

(Incidentally, as a textual literalist, Black also believed there was no right to privacy in the Constitution, because the text doesn't explicitly state one).

If your world view is "there's everyone who thinks like me, and scumbags who hate freedom" I'm not sure there exists a prescription to eliminate that particular kind of myopia.

Re:Not surprised

[Anonymous Coward]

Orr had argued that the legislature gives a non-criminal penalty for refusing to take a breathalyzer test, so it would make no sense to turn refusal to take a field sobriety test into a more severe criminal offense. The three-judge panel concluded there was no case law supporting this position and upheld Orr's conviction.

In this case, if the facts as described are correct, the three judge panel violated their oaths to uphold the Bill of Rights: the ruling is illegal and actions taken pursuant to that ruling are illegal (and possibly criminal).

Acting according to reasonable expectations regarding the law is a right retained by the people under the 9th Amendment: failure to recognize this is not merely an accidental or minor technical violation of the judge's oaths to uphold the law, but unethical practice of law.

After all, if one can not act according to reasonable expectations regarding the law, that fact by itself automatically increases the demand for the services of legal professionals to "protect" one from one's own legal system. It is the equivalent of organized crime tactics of scaring people to get "protection" money.

Unfortunately, considerable evidence suggests expecting the average legal professional in the USA to understand ethics is like expecting a 19th century slave owner to understand morality.

Re:Not surprised

[jeIlomizer]

Those freedom-hating scumbags include most of the contributors to the text of the Constitution and the Bill of Rights

You do realize, of course, that there was slavery in those days? The founders had some good ideas, but I don't look to them as some sort of freedom gods.

I do not care. List off as many judges as you want, and I'll say they're just ignoring what the constitution says.

(Incidentally, as a textual literalist, Black also believed there was no right to privacy in the Constitution, because the text doesn't explicitly state one).

Privacy exists because of the limitations we place on the government. It exists in practice, and the constitution need not explicitly state it exists. Remember, the constitution only allows the government to do what it says it can. It doesn't work like, "It doesn't say people have a right to X, so they don't." It works like, "It doesn't say the government can do X, so they can't." The latter is what gives us privacy in practice.

If your world view is "there's everyone who thinks like me, and scumbags who hate freedom" I'm not sure there exists a prescription to eliminate that particular kind of myopia.

I'm not sure of that either. The problem is, people only pretend to want to live in 'the land of the free.'

Re:Not surprised

[jeIlomizer]

(a more strident First Amendment supporter can't be found)

You are wrong.

Re:Not surprised

[Reziac]

Repeating the AC's excellent post to make it more visible:
========
Quote:
Orr had argued that the legislature gives a non-criminal penalty for refusing to take a breathalyzer test, so it would make no sense to turn refusal to take a field sobriety test into a more severe criminal offense. The three-judge panel concluded there was no case law supporting this position and upheld Orr's conviction.

AC:
In this case, if the facts as described are correct, the three judge panel violated their oaths to uphold the Bill of Rights: the ruling is illegal and actions taken pursuant to that ruling are illegal (and possibly criminal).

Acting according to reasonable expectations regarding the law is a right retained by the people under the 9th Amendment: failure to recognize this is not merely an accidental or minor technical violation of the judge's oaths to uphold the law, but unethical practice of law.

After all, if one can not act according to reasonable expectations regarding the law, that fact by itself automatically increases the demand for the services of legal professionals to "protect" one from one's own legal system. It is the equivalent of organized crime tactics of scaring people to get "protection" money.

Unfortunately, considerable evidence suggests expecting the average legal professional in the USA to understand ethics is like expecting a 19th century slave owner to understand morality.
=========

Re:Not surprised

[Yakasha]

"You should not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harm it would cause if improperly administered." -- Lyndon Johnson, 36th President of the United States

In other words, don't assume YOUR side will always be enforcing those laws you want enacted.

And takes us back to the age-old disagreement of which is more important: the benefits, or stopping the wrongs it can bring.

Imho, liberty requires you "do no harm", first.

Re:Not surprised

[dnavid]

(a more strident First Amendment supporter can't be found)

You are wrong.

I said strident, not insane.

Re:Not surprised

[jeIlomizer]

It's not insane to consider free speech a fundamental right, and to say that judges can't just modify the constitution with invisible ink.

Re:Not surprised

[dnavid]

It's not insane to consider free speech a fundamental right, and to say that judges can't just modify the constitution with invisible ink.

No, its not. Let me know when someone says that.

Re:Not surprised

[jeIlomizer]

Oh, good. That means we're in full agreement, then.

Disgusted but not really surprised

[bazmail]

This is absolutely abhorrent. The surveillance is illegal, the NSA even admits they spy on American citizens.

The US government is not "of the people", nor is it "for the people". The intelligence services exist purely to maintain and protect dynastic power for the privileged few.

Re:Disgusted but not really surprised

[K. S. Kyosuke]

Obviously, what the world needs is a suite of server-less, p2p communication protocols that would cover our basic communication needs without any centralized points of failure (like NSLable mail server operators) and with all communication encrypted.

Re:Disgusted but not really surprised

[iggymanz]

right after we convict and behead the traitors, sure

let's handle the primary needs first before getting around to secure comm

Re:Disgusted but not really surprised

[PopeRatzo]

I'll take my chances with the traitors, thanks anyway.

Re:Disgusted but not really surprised

[currently_awake]

Persecuting the guilty is not mutually exclusive from securing our comms to block the next group. Securing our communications also blocks the corporations from spying on us, something that mere laws and public resentment won't stop.

Re:Disgusted but not really surprised

[dcollins117]

Obviously, what the world needs is a suite of server-less, p2p communication protocols that would cover our basic communication needs without any centralized points of failure (like NSLable mail server operators) and with all communication encrypted.

We have one, it's called Freenet. The technology exists, but people aren't using it.

Re:Disgusted but not really surprised

[K. S. Kyosuke]

I may have been insufficiently explicit in what I had in mind. It's not just the technological foundation, there has to be some practical, user-oriented functionality. For example, collaborative editing and content management is increasingly important today, is there some collaborative document processing system that works on top of the Freenet protocols? So that people could do something new, useful and time-saving in addition to doing it in a secure way?

Re:Disgusted but not really surprised

[iggymanz]

last time corporate fascism went *really* crazy they rounded up homos, heebs, and hunkies. what's the ethnic slur for your group? maybe you'll win the lottery and they'll be a target this time around...

Re:Disgusted but not really surprised

[shutdown -p now]

Last time the corporate fascism went really crazy, the meaning of the word "corporate" and "corporation" (at least, in the context of their political platform) was very different from the one that you're imply in your post.

Re:Disgusted but not really surprised

[iggymanz]

no, they really did have the strong ties to corporations even while making speeches to imply solidarity with the working man

Re:Disgusted but not really surprised

[Anonymous Coward]

I don't think we necessarily need to focus on doing new things, but on doing the things we do everyday in a transparently secure manner. The user should never have to know it exists until something goes wrong.

Re:Disgusted but not really surprised

[Anonymous Coward]

What makes me laugh is this defunct group which is another arm of government (what a shock) claims that because of terrorism it is perfectly legit to break any and all laws, and the constitution. How many reports have there been over the fact that the information they gather has done nothing to stop this supposed terrorism! And yet one group after another, of course all third arms of government keep coming out to support this type of surveillance! The whole terrorism debacle was nothing more then another attempt to monitor and control citizens of this country.

My comments shouldn't be taken literally, but I would be interested in finding out how many domestic attacks, bombings, mass shootings, ect, were planned or researched using the internet to commit such acts? And I've said this before terrorists are extremely cunning, their fully aware of monitoring or spying so its more then likely they knew about the NSA and other spying agencies long before Snowden came along, and it wouldn't be that hard to figure out when your being attacked by drones, one would come to a conclusion that your being track because your accessing or using some type of electronic device.

Re:Disgusted but not really surprised

[shutdown -p now]

They did, but the "corporatism" in fascism was not about that at all. Corporations in fascist parlance is more like state-run and state-regulated trade guilds and unions.

http://en.wikipedia.org/wiki/C...

Re:Disgusted but not really surprised

[PopeRatzo]

Oh, excuse me. I was reading too fast. My reply was predicated on the notion that the "traitors" in the original post referred to terrorists or something. For some reason (maybe the six beers I had shotgunned) I read "traitors" as "terrorists", and thought he was saying that we should dismantle the surveillance state only after we'd caught all the terrorists.

Of course we should behead the people responsible for the NSA overreach, and any unrepentant corporate fascists, after a brief and respectful trial. I'm still not completely comfortable with the "put their heads on pikes as a reminder to any public servant or CEO who would ever consider such surveillance again" but only because it doesn't sound very hygienic.

Re:Disgusted but not really surprised

[K. S. Kyosuke]

That is true, but practice shows that users are not going to switch en masse merely because something is more secure. People didn't switch to Gmail because it consistently used HTTPS (let's put NSA aside for a while ;-)), they did it because of the useful functionality.

translating "limits of its current technology"

[RandomUsername99]

really means "limits of its current supply of fucks to give."

Bullshit.

[Anonymous Coward]

Their job is to weigh the benefits of government actions — like stopping terrorist threats — against violations of citizens' rights that may result from those actions

There is absolutely no valid reason to violate citizens' rights. At all. Ever. There is no way to justify it. These people should be out on their asses, but as we all know, corrupt assholes are in high demand for government positions.

Re:Bullshit.

[Anonymous Coward]

The NSA surveillance amounts to a general warrant, which is illegal. Police could also enforce the laws far more effectively if they could search people and their effects without any sort of suspicion or warrant, but the benefits offered by such a scheme are widely recognized to in no way justify the intrusion on people's privacy and liberty. So, no, I don't think it's valid to weigh the 4th amendment against some nightmare scenario where my life and the lives of others can only be preserved by forfeiting our rights.

Re:Bullshit.

[Yakasha]

Another example is a person's right to free speech does not include libel and slander. When two or more rights conflict, lawmakers and the courts must sort out who's rights win. So from a purist's point of view, there are valid reasons to "violate" certain rights, since use or protection of one right may violate another.

The problem with that argument is that your right to speak is specifically protected by the Constitution, without caveats. Your right to not be slandered is not. The Constitution grants Congress various powers. None of which include violating the Constitution in any way, shape or form.

So from a true purist's point of view, there is never a valid reason to violate certain rights, because nobody has that right.

Does your right to "life, liberty, and the pursuit of happiness" have more or less weight than your rights under the 4th amendment et.al.?

That is up to me to decide, not the Federal Government, because nobody ever gave them the right to decide.

It is not a black-and-white problem as is often portrayed on Slashdot, such as you have done above.

I think it is. But I know I'm in the tiny minority that believes if you want an exception to the Constitution, you're supposed to pass an amendment.

Re:Bullshit.

[dunkindave]

The problem with that argument is that your right to speak is specifically protected by the Constitution, without caveats. Your right to not be slandered is not. The Constitution grants Congress various powers. None of which include violating the Constitution in any way, shape or form.

So from a true purist's point of view, there is never a valid reason to violate certain rights, because nobody has that right.

So if a person gives aid and comfort to the enemy (Article Three, Section 3) by revealing state secrets, let's say in print in a paper, during a war as declared by Congress (Article One, Section 8), which right wins: the constitutional definition of treason, or the right to free speech contained in the First Amendment? Remember, you said "your right to speak is specifically protected by the Constitution, without caveats".

In my previous post I was trying to point out that there are exceptions to rights since rights can be in conflict, including the right to free speech. Your concern however demonstrates a fear the founding fathers had in creating the Bill of Rights, namely that a person could construe the listed rights as a definitive list, or as a list of rights that are more important than those not listed, such as the pursuit of happiness including life without being slandered. The "right to privacy" suffers from this since privacy isn't mentioned anywhere in the constitution. I am not a constitutional scholar so I am sure there are many such examples of conflicts in rights, but I can only list those I can readily see.

As I said, I do not have access to all the information the Board did, but based on what I know I disagree with the Board's conclusion, as I believe you do. It's just that I can see that the world is in color, not just black and white.

Re:Bullshit.

[jeIlomizer]

So if a person gives aid and comfort to the enemy (Article Three, Section 3) by revealing state secrets, let's say in print in a paper, during a war as declared by Congress (Article One, Section 8), which right wins: the constitutional definition of treason, or the right to free speech contained in the First Amendment?

The first amendment is an amendment to the constitution, and it comes after article three, section 3. Remember how constitutional amendments are supposed to work...? Apparently, no one does.

Re:Bullshit.

[jeIlomizer]

Other may feel differently given a significant threat from foreign groups hellbent on harming the US, which is also a valid belief.

Nope. That's not a valid belief. We're supposed to be 'the land of the free and the home of the brave'; free and brave people would never sacrifice their fundamental liberties for such things. Anyone who says otherwise should move to North Korea.

Re:Bullshit.

[dunkindave]

So if a person gives aid and comfort to the enemy (Article Three, Section 3) by revealing state secrets, let's say in print in a paper, during a war as declared by Congress (Article One, Section 8), which right wins: the constitutional definition of treason, or the right to free speech contained in the First Amendment?

The first amendment is an amendment to the constitution, and it comes after article three, section 3. Remember how constitutional amendments are supposed to work...? Apparently, no one does.

I do not believe that the Constitution is interpreted as what comes first overrides everything that comes later. Also, I was specifically giving a counter example to the claim "your right to speak is specifically protected by the Constitution, without caveats". The clause about Treason in the Constitution sounded like a caveat to his interpretation that the right to speak was absolute; was I wrong that it is a caveat, or can a person never commit treason through speech, including through print?

Re:Bullshit.

[dunkindave]

Anyone who says otherwise should move to North Korea.

Really? Tell me, is it therefore OK if they have an opinion that differs from yours to believe YOU should move to a hostile country? Or does this philosophy only work in your favor?

Re:Bullshit.

[jeIlomizer]

I do not believe that the Constitution is interpreted as what comes first overrides everything that comes later.

What? That's not what I said at all. Look, the amendment that created prohibition was later overridden by the one that canceled it out. That's kind of the point of an amendment to the constitution; it amends the constitution, thereby changing it. Since the first amendment came later, it overrides everything that came before it in the relevant areas.

Re:Bullshit.

[jeIlomizer]

It only works in my favor, because I'm pro-freedom. Since we're supposed to be "the land of the free and the home of the brave," there is no room for debate as to what kind of country this is supposed to be. If they want their police state, then they can move to one. It's quicker and more rational that way, you know?

Re: Bullshit.

[Anonymous Coward]

... that is precisely the reason they are AMENDMENTS. The Articles of the Constitution define the structure, duties, and legal authority of the 3 branches of the federal government and the framework for the states. The amendments explicitly state the limitations of those powers as applied to citizens and the states.

Re: Bullshit.

[shutdown -p now]

They are amendments because they amend the text of the Constitution. That is all. There's no magical effect associated with the word "amendment" otherwise. They override the previous meaning if their text says that they do.

An amendment that would say "Articles of Amendment 1 through 27 to the Constitution of the United States are hereby repealed" is perfectly valid, for example (provided that you can pass it, that is...).

Re:Bullshit.

[dunkindave]

I do not believe that the Constitution is interpreted as what comes first overrides everything that comes later.

What? That's not what I said at all.

Then I misunderstood. You said "The first amendment is an amendment to the constitution, and it comes after article three, section 3" with the implication being the order mattered. I interpreted your statement as a rational for why the first amendment did NOT nullify the constitutional definition of treason (treason was defined first). Did you instead mean you feel the First Amendment comes later so makes meaningless the definition of treason in Article Three, Section 3 as it relates to something a person says or prints? I think the courts have never seen it that way, nor the founding fathers who passed both within a few years of each other.

Look, the amendment that created prohibition was later overridden by the one that canceled it out. That's kind of the point of an amendment to the constitution; it amends the constitution, thereby changing it. Since the first amendment came later, it overrides everything that came before it in the relevant areas.

Of course, the first line of the 21st Amendment which abolished prohibition is "The Eighteenth Article of Amendment to the Constitution of the United States is hereby repealed". Kind of makes clear that it intended to remove enforcement of the earlier amendment. If an amendment and an earlier section of the Constitution were to conflict in a manner that was not intended by the framers, I believe you would see a court challenge to establish which conflicting law would prevail. It is this need to evaluate and decide such conflicts that I brought up in my original post, including many of those rights that are implied but not explicitly spelled out, such as the right to privacy. Or do you think it should be constitutionally protected to walk down main street with sarin gas grenades strapped to my chest (2nd Amendment) shouting that I will go to the local school and throw them at kids (1st Amendment)? If the 1sth Amendment is absolute then verbal threats, like threatening to kill someone, can never be illegal. Where is the line? Of course, saying there is a line means there are caveats to the amendments.

Re:Bullshit.

[jeIlomizer]

Of course, the first line of the 21st Amendment which abolished prohibition is "The Eighteenth Article of Amendment to the Constitution of the United States is hereby repealed". Kind of makes clear that it intended to remove enforcement of the earlier amendment.

That's utterly irrelevant. If an amendment says, "Congress shall make no law that does X" or anything similar, then that is also quite clear. It doesn't need to be explicitly said that it overrides a previous part of the constitution.

Or do you think it should be constitutionally protected to walk down main street with sarin gas grenades strapped to my chest (2nd Amendment) shouting that I will go to the local school and throw them at kids (1st Amendment)?

Yep, I do. Until you people amend the constitution, all you're doing is ignoring it for your own convenience.

Re:Bullshit.

[dunkindave]

It only works in my favor, because I'm pro-freedom.

That statement speaks for reems.

Since we're supposed to be "the land of the free and the home of the brave," there is no room for debate as to what kind of country this is supposed to be.

You do realize that there is no firm consensus of what "free" and "brave" mean in that statement, so it seems there is room for debate, though I am sure you will state your interpretation and say it is the correct one. Some people have a different view of the meaning and how we achieve them, and you feel people with a different view from you "who says otherwise should move to North Korea". Nice argument style.

Re:Bullshit.

[jeIlomizer]

I think the courts have never seen it that way, nor the founding fathers who passed both within a few years of each other.

Then that just means they were violating the constitution from the beginning, not that such a thing is okay. Remember when the US had slavery from the very beginning, and that was seen as okay by many people? Well, that doesn't make it okay just because they were there from the start.

Re:Bullshit.

[jeIlomizer]

You do realize that there is no firm consensus of what "free" and "brave" mean in that statement

Ah, so it means giving up our freedoms for safety, then. Yes, that's what free and brave mean.

Some people have a different view of the meaning and how we achieve them, and you feel people with a different view from you "who says otherwise should move to North Korea". Nice argument style.

You're defending people who want to discard our fundamental freedoms and give the government all kinds of unchecked power for 'safety.' You cannot defend them. There are no excuses.

Re:Bullshit.

[Yakasha]

So if a person gives aid and comfort to the enemy (Article Three, Section 3) by revealing state secrets, let's say in print in a paper, during a war as declared by Congress (Article One, Section 8), which right wins: the constitutional definition of treason, or the right to free speech contained in the First Amendment? Remember, you said "your right to speak is specifically protected by the Constitution, without caveats".

Now you're talking about two conflicting Constitutional questions. Totally different issue because the Constitution tells exactly how to resolve that dispute: the courts.

It's just that I can see that the world is in color, not just black and white.

It is not about the world or how I or you think it should be or is. It is about acknowledging that we will always disagree about what color the world is; and agreeing to some guidelines that both of us think is acceptable enough to make the world as awesome as possible. It is about what the Constitution says, or doesn't say; why it says it; and what happens if you ignore it. That document is the end-all-be-all of our entire system of government. It is supposed to sit there for those moments when there is doubt as to whether or not something the government is doing is acceptable by the people. It is supposed to answer whatever burning question you have as to whether or not the government has the right to do something. That is truly what the Constitution is: a definition of the government's rights, not ours; we KNOW our rights for they are inherent and inalienable. We collectively decided that we will "give up" some, specific, rights in the interest of obtaining all the benefits a central government has to offer. To make it absolutely clear which rights we were willing to give up, and what the government could do with them, the Constitution was written. It can only do its job if we always agree on what it says. Not what it should say, but what it actually says.

When somebody decides "Section {whatever} doesn't apply in situation X because I don't think it should" (and that is what any argument boils down to if you're not citing some other part of the Constitution), they change the Constitution. The moment somebody justifies violating the Constitution with a reason other than some other part of the Constitution, that justification has just been implicitly included in the document. As those other reasons are not codified in the Constitution, they are included arbitrarily and open to any interpretation the powers de jour feel like. And as the entire decision to include or exclude is without rules or bounds, that means the government's powers are likewise without rules or bounds.

By saying there are exceptions to the rules as specified in the Constitution, you are saying there is no limit to the government's power for any right, at any time, can be justified as being too important; or too minor; or not intended by the framers; or not applicable to the times; to deny to the government. That is why we're here today, in this situation. Because at some point in the past, somebody decided that Section XYZ didn't apply. So now anybody and their mother is using that same logic to say the 4th Amendment doesn't apply. The debate going on today is "when can the government violate citizen's rights?", but that question was already answered over 250 years ago with a detailed list!

If the President or Congress feels there is a situation where the 4th Amendment doesn't apply, they can damn well put it to a vote and have the Constitution changed legitimately; for that process is detailed clearly and has been used successfully many times. There is never a need, justification, or right for the government to violate the Constitution.

Never.

Re:Bullshit.

[Yakasha]

230... what a great time for a typo.

Re:Bullshit.

[dunkindave]

You do realize that there is no firm consensus of what "free" and "brave" mean in that statement

Ah, so it means giving up our freedoms for safety, then. Yes, that's what free and brave mean.

I think your English didn't match what you were trying to say, but either way I did not say that, I just was responding to your defense of saying the there was no room for debate by your quoting a line from the National Anthem.

Some people have a different view of the meaning and how we achieve them, and you feel people with a different view from you "who says otherwise should move to North Korea". Nice argument style.

You're defending people who want to discard our fundamental freedoms and give the government all kinds of unchecked power for 'safety.' You cannot defend them. There are no excuses.

Again, I did not say that, rather my intention is to look at the issue, not a polarized and inflammatory restatement of it. I am not trying to defend "people who want to discard our fundamental freedoms and give the government all kinds of unchecked power". I find them a blight to our society. I just wanted to explain that rights have limits, such as threatening to kill your spouse/neighbor/teacher/President isn't protected speech under the First Amendment, or at least very few people would think so. To claim speech is absolutely protected is to say there can be no crime of assault (remember, the courts have held actions are also a form of speech), nor is there any crime of fraud (those false statements would be protected speech), not even perjury (again, protected), plus many more such examples. Is that what you believe?

Instead of continuing this since I believe your viewpoint is clear, I will just say that a famous quote by Mark Twain about arguing is coming to mind...

Re:Bullshit.

[jeIlomizer]

I think your English didn't match what you were trying to say, but either way I did not say that, I just was responding to your defense of saying the there was no room for debate by your quoting a line from the National Anthem.

Most of these 'people' supporting government violations of our rights also pretend to want to live in a free country, making them hypocrites. That is the point.

I just wanted to explain that rights have limits, such as threatening to kill your spouse/neighbor/teacher/President isn't protected speech under the First Amendment

The government only has as much (legitimate) power as the constitution grants it. The first amendment lists no exceptions, so the problem isn't with the first amendment, but with judges who modify the constitution with invisible ink when it is convenient to do so. Furthermore, the constitution certainly does not grant the government the power to spy on everyone's communications, safety or no.

Don't like the constitution? Move to amend it. The end.

Is that what you believe?

Until the constitution is amended, yes.

Re:Bullshit.

[dunkindave]

So if a person gives aid and comfort to the enemy (Article Three, Section 3) by revealing state secrets, let's say in print in a paper, during a war as declared by Congress (Article One, Section 8), which right wins: the constitutional definition of treason, or the right to free speech contained in the First Amendment? Remember, you said "your right to speak is specifically protected by the Constitution, without caveats".

Now you're talking about two conflicting Constitutional questions. Totally different issue because the Constitution tells exactly how to resolve that dispute: the courts.

That is what I have been saying.

It's just that I can see that the world is in color, not just black and white.

It is not about the world or how I or you think it should be or is. It is about acknowledging that we will always disagree about what color the world is; and agreeing to some guidelines that both of us think is acceptable enough to make the world as awesome as possible. It is about what the Constitution says, or doesn't say; why it says it; and what happens if you ignore it. That document is the end-all-be-all of our entire system of government. It is supposed to sit there for those moments when there is doubt as to whether or not something the government is doing is acceptable by the people. It is supposed to answer whatever burning question you have as to whether or not the government has the right to do something. That is truly what the Constitution is: a definition of the government's rights, not ours; we KNOW our rights for they are inherent and inalienable. We collectively decided that we will "give up" some, specific, rights in the interest of obtaining all the benefits a central government has to offer. To make it absolutely clear which rights we were willing to give up, and what the government could do with them, the Constitution was written. It can only do its job if we always agree on what it says. Not what it should say, but what it actually says.

Agreed.

When somebody decides "Section {whatever} doesn't apply in situation X because I don't think it should" (and that is what any argument boils down to if you're not citing some other part of the Constitution), they change the Constitution. The moment somebody justifies violating the Constitution with a reason other than some other part of the Constitution, that justification has just been implicitly included in the document. As those other reasons are not codified in the Constitution, they are included arbitrarily and open to any interpretation the powers de jour feel like. And as the entire decision to include or exclude is without rules or bounds, that means the government's powers are likewise without rules or bounds.

Also agree, but then the problem of language is always there. Two people can read the same sentence in the Constitution and think it means two different things. To quote Bill Clinton "It depends on what the meaning of the words 'is' is."

By saying there are exceptions to the rules as specified in the Constitution, you are saying there is no limit to the government's power for any right, at any time, can be justified as being too important; or too minor; or not intended by the framers; or not applicable to the times; to deny to the government. That is why we're here today, in this situation. Because at some point in the past, somebody decided that Section XYZ didn't apply. So now anybody and their mother is using that same logic to say the 4th Amendment doesn't apply. The debate going on today is "when can the government violate citizen's rights?", but that question was already answered over 250 years ago with a detailed list!

I mostly agree, but now we get to the crux of the problem. My statements have been about how rights have exceptions because at times they will conf

Re:Bullshit.

[Yakasha]

Now you're talking about two conflicting Constitutional questions. Totally different issue because the Constitution tells exactly how to resolve that dispute: the courts.

That is what I have been saying.

You said slander. Different issue.

Also agree, but then the problem of language is always there. Two people can read the same sentence in the Constitution and think it means two different things. To quote Bill Clinton "It depends on what the meaning of the words 'is' is."

That is not a problem. Like I said, that is what SCOTUS is for. And once scotus makes a ruling, if the people don't like it, they can amend the Constitution to make it more palatable. If the government ignores the constitution, what is the people's remedy? There is none. The Constitution is the only remedy for all disputes with the government.

I mostly agree, but now we get to the crux of the problem. My statements have been about how rights have exceptions because at times they will conflict with other rights, and only one can be honored.

This is also where you're getting distracted from the actual issue. The point is, the people's rights never conflict for they are not involved in this or any other dispute with the government. This isn't a question of "who's rights are more important". This is a question of "Can the Federal government ignore the 4th Amendment (or any other section of the Constitution) because national security (or any other non-constitution based reason) is more important?". The Constitution very specifically states what rights the Government has. If the Feds ignore the 4th, they're ignoring the entire document.

The basic argument regarding the NSA's actions is to what degree do actions to protect your right to live in this country and have it continue to exist (i.e. right to life, liberty and the pursuit of happiness) balance against other rights such as those contained in the fourth amendment.

Where does the Constitution give the Government the power, the right, or the authority to guarantee or pursue life, liberty and happiness? It doesn't. That is the goal of the document (as implied by the declaration of independence), not the how. The how is in the list of powers given to the feds. ALL other powers reside with the States or the People. The wording you're using still suggests that you believe the Constitution is defining our rights. But as I've said, it is there to define the government's rights. So if the Constitution doesn't say the feds have the power, then they don't. It is an open & shut case as long as you abide by the Constitution. The 4th Amendment MUST be upheld.

I believe it is not an all one way or the other, and I think there is a valid argument regarding the need for balance. I also think the NSA and the President have gone beyond their powers and acted unconstitutionally. And before someone says it, no, this is not a contradiction of thought or cognitive dissonance.

Its not a contradiction, it is just short-sighted. If you argue for "balance" in ways that allow the government to violate the Constitution, you nave no argument to stop them from doing it.

I agree that there is never a need or justification to deliberately violate the Constitution, but when Congress or the courts balances one right against another, is that a violation, since if so, it is a no-win situation. One of the rights must be violated since they conflict and cannot both be honored.

I already covered this.

Justice

[Anonymous Coward]

Executive branch investigates executive branch actions and finds no wrongdoing.

Re:Justice

[RabidTimmy]

That's why it's called Justice, because it's Just Us.

Re:Justice

[Anonymous Coward]

Executive branch investigates executive branch actions and finds no wrongdoing.

If true, then it follows: Company investigates company criminal activity, finds no wrong doing. And then ... erh ... I just had an epiphany. I can do anything I want if I can get away with it.

In violation of many Data Treaties

[WillAffleckUW]

Not only is it in violation of the US Constitution, but also the Canadian Constitution, and the EU-US Data Treaty that the Senate affirmed, making it more Law than Laws of Congress.

But, hey, keep up this stuff and don't be surprised when the Guillotines start working non-stop.

Re:In violation of many Data Treaties

[DoofusOfDeath]

Exactly whom will you behead, when probably 30%+ of Americans consider the NSA's actions appropriate?

Our country is deeply and closely divided on tons of issues right now. I shudder to think how many of us would sign off on killing everyone in the opposing group.

Re:In violation of many Data Treaties

[currently_awake]

The Canadian government has a loophole, the notwithstanding clause, to allow them to violate your constitutional rights. Sortof like passing the DM treachery notes during a game, and viewed the same way by the general public.

Re:In violation of many Data Treaties

[Anonymous Coward]

No shudder needed. It wouldn't be a fight.

Half the combatants are wielding guns, shouting "LIFE, LIBERTY, HAPPINESS AND GUNS YOU FACIST HIPPY PIGS!"
Half the combatants are wielding anti-gun signs, shouting "THINK OF THE CHILDREN YOU REDNECK COWBOYS!"

Re:In violation of many Data Treaties

[WillAffleckUW]

The Canadian government has a loophole, the notwithstanding clause, to allow them to violate your constitutional rights. Sortof like passing the DM treachery notes during a game, and viewed the same way by the general public.

Not according to the Canadian Supreme Court recent rulings.

Re:In violation of many Data Treaties

[BoberFett]

I wouldn't mind it if both opposing groups simply vanished. The sane people stopped listening to either group of idiots long ago.

Re:In violation of many Data Treaties

[Anonymous Coward]

Well start with the 30% then and see what happens to the rest.Though I think a lot of the 30% would change their mind once things start moving.

Re:In violation of many Data Treaties

[Neil Boekend]

That would help against CO2 pollution [/tongue_in_cheek]

Re:In violation of many Data Treaties

[Anonymous Coward]

Exactly whom will you behead, when probably 30%+ of Americans consider the NSA's actions appropriate?

I think you have your "target audience" right there.

Re:In violation of many Data Treaties

[Bob the Super Hamste]

Only 30% I think you are forgetting the apathetic as well not just the cheerleaders of these actions. If it were only 30% with the rest being against it there would probably be blood in the streets.

Re:In violation of many Data Treaties

[alexo]

The Canadian government has a loophole, the notwithstanding clause, to allow them to violate your constitutional rights.

Yes, they do.

However, seven of the ten provinces and two of the three territories have never used the power of override; nor has the federal parliament.
And while there have been a small number of abortive attempts to use it, all of them have either failed to materialize, were revoked, or proven to be unnecessary (as the respective laws were in line with the charter).

On the other hand, the USofA government lacks such a loophole yet continually violates the constitutional rights of the populace, with full complicity of the judiciary.

Which one do you prefer?

unavoidable?

[wherrera]

"The NSA cannot completely eliminate 'about' communications from its collection without also eliminating a significant portion of the 'to/from' communications that it seeks."

Almost all the US population and much of the rest of the world's people seen as.. just bycatch?

Another generation with contempt for government

[Anonymous Coward]

Yeah, this will end well.

ØØÙSÙ

[Anonymous Coward]

Ù

Next Step

[Anonymous Coward]

When they take away any ability for us to feel we are getting redress for our grievances, there is only 1 option left for the citizens.

When we give corporations the same ability

[Anonymous Coward]

When we give corporations the same ability to regulate themselves, I'm sure they do just fine too. /s

I'm shocked!

[fozzy1015]

Just like I was when Chris Christie's own lawyers wrote up with a report exonerating him of Bridgegate.

Re:I'm shocked!

[Anonymous Coward]

Jackass.
Once again the Obama administration has trampled on the rights of ALL US citizens and declared itself as being perfectly acceptable and the first thing you do is blame a Republican. Its almost as the worse he gets the more you idiots blame the GOP and encourage him to do worse.

If the rest of you wonder why the president acts the way he does its because idiots like this kiss his ass every time he does something horrible.

Re: I'm shocked!

[Anonymous Coward]

Are you slow, or did you not read the post to which you responded?

Re:I'm shocked!

[DoofusOfDeath]

I think you're talking about the ~535 traitors who comprise Congress, but refuse to impeach an out-of-control President.

Re:I'm shocked!

[phantomfive]

For what exactly would they impeach him? For following a law that congress itself passed?

Re:I'm shocked!

[Anonymous Coward]

get with the program man,
washington is a social club...
when was the last time you were invited to a presidential ball ?

VIVA LOST WAGES!

Re:I'm shocked!

[Anonymous Coward]

Which law was that? Did Congress pass a law for "Fast and Furious", "IRS Scandal", "Benghazi Coverup", "Spying on the Press", Bergdahl, Executing an American citizen without due process, etc

Or are you talking about Obamacare? The law that Congress passed that he is modifying after it has been signed into law?

Either way, he is breaking the law.

An obvious problem

[Anonymous Coward]

It isn't "the government's efforts to comprehensively acquire communications that are sent to or from its targets" that is the problem. It is their definition of targets and their collection of metadata and communications from anybody and everybody.

We can relax now

[nytes]

Hey, everyone, the government says that what it's doing is OK. At least we got that settled and we can all stop worrying about it.

while their methods were "close to the line of constitutional reasonableness," they were used for good reason

Hey, I think I heard of a road that you can pave with those good intentions.

Nothing to see here folks

[shuz]

Please move along.

Hey, it's OK...

[Kazoo the Clown]

As long as you have a "good reason" to violate the Constitution, hey, it's OK. Now that's a legal standard I can get behind. "Hey officer, I had a good reason to run that stop sign, I was late for work."

Remind me why we should bother to obey laws again? Lead by example...

Re:Hey, it's OK...

[Kazoo the Clown]

Oh, that's right, the excuse has to have "terrorism" in it somewhere... "Hey officer, I had a good reason to run that stop sign, I thought the guy behind me might be a terrorist."

Re:Hey, it's OK...

[Anonymous Coward]

You shouldn't. The US government has been operating so far out of bounds for so long that any legitimacy that the constitution granted it is gone. They rule by might and fear now.

Can it be both?

[TheDarkener]

"the NSA cannot completely eliminate 'about' communications from its collection without also eliminating a significant portion of the 'to/from' communications that it seeks."

....Isn't that like saying, "I can't stop being an abusive husband, because if I'm forced to stop beating my kids, I'd also have to stop beating my wife!"

Wow

[JoelKatz]

"Because of the manner in which the NSA conducts upstream collection, and the limits of its current technology, the NSA cannot completely eliminate 'about' communications from its collection without also eliminating a significant portion of the 'to/from' communications that it seeks."

It sounds like this board completely fails to understand how oversight of surveillance is supposed to work. To government can *always* defend a dragnet on the grounds that it takes a dragnet to get the information they want. The purpose of oversight is to ensure they *don't* use dragnets, even where it's the only way to get what they want. The prohibition against general warrants is needed precisely because they can be so effective. The role of surveillance oversight is to prevent oppression, not inefficiency.

maybe some day, we will all

[Anonymous Coward]

rise up.

"Privacy Board"

[Dereck1701]

A "Privacy and Civil Liberties" board stacked with members/former members of the DHS, counter terrorism, Justice Department & FTC. Agencies well known for their efforts to EXPAND government authority not limit it. And anyone thinks for a second that their "report" would have ended any other way?

Realistic

[jdavidb]

You don't have to be "cynical" to expect the government to act in the government's own best interest. The idea that one piece of government will keep another piece in check rather than colluding together to expand power is an unrealistic pipe dream. Honestly we've had over two hundred years of real world experimental evidence demonstrating that checks and balances DON'T WORK. They never did, and never will. The only realistic check on government power is secession.

Re:Realistic

[fustakrakich]

The only realistic check on government power is secession.

I'll have to assume you haven't studied American history.

Nobody votes for true statesmen

[Anonymous Coward]

Americans hate honest politicians. We say we want them, and we lament all the dishonest ones, but whenever an honest one runs, he is voted down immediately.

Honest politicians say things Americans don't want to hear. They alienate most of their potential voter base by standing up for what is right. For example:

"In a free country, people should be free to marry regardless of gender identity." This is a right-as-rain truth that will alienate most of the conservative voters. Then a statement like "In a free country, people should be free to own firearms for personal defense", equally right-as-rain and true, and sufficient to alienate most of the liberal voters.

Those are two examples that popped into my head. But the list is enormous. The reason all politicians are liars is because only liars say what voters want to hear.

Re:Nobody votes for true statesmen

[Anonymous Coward]

"A statesman is a dead politician. This country needs more statesmen." - Opus

Meanwhile...

[bmo]

On the other side of the pond...

"Furthermore, all of GCHQ's work is carried out in accordance with a strict legal and policy framework which ensures that our activities are authorised, necessary and proportionate, and that there is rigorous oversight, including from the Secretary of State, the Interception and Intelligence Services Commissioners and the Parliamentary Intelligence and Security Committee. All our operational processes rigorously support this position."

Bollocks.
To both.

--
BMO

Circular reasoning

[Atmchicago]

"Because of the manner in which the NSA conducts upstream collection"

That's the whole point! You can't say that troublesome methodology is OK because it's the methodology they chose... Circular reasoning at its best.

Way to Miss the Point

[organgtool]

Because of the manner in which the NSA conducts upstream collection, and the limits of its current technology, the NSA cannot completely eliminate 'about' communications from its collection without also eliminating a significant portion of the 'to/from' communications that it seeks.

I wonder if that would work for me. "Your honor, I had to rob all of those banks because I could not afford the Lambos and prostitutes that I seek."

Of course the government would have to eliminate such a program that gathers what it seeks... because what it seeks is unconstitutional!!! How the fuck did they write a 191-page report and completely miss that point?! I'm sure there would be a ton of people ready to cite Hanlon's Razor, but nobody is that dumb. If you still don't buy into that, then let me introduce Organgtool's Razor: In a world where everyone buys into Hanlon's Razor, all it takes for evil to triumph is for it to wear a veil of stupidity.

Send the Board Feedback

[terbeaux]

Tell them what you thing about the report:

Email: info@pclob.gov
Fax: 202.296.4395

Release Date

[TED Vinson]

The PCLOB's report is released on 7-02.

Someone has a sense of humor or...

(don_tinfoil_hat) ...is trying to send a secret message. (doff_tinfoil_hat)

Bla bla bla...

[fustakrakich]

The reelection rate will still remain above 90%. 98% of the voters will still vote republican or democrat, still believing they are in opposition to each other.. If this is what people want, who am I to argue? It's talking to the hand. I'm not cynical. I just don't give a damn.

Re:Bla bla bla...

[Anonymous Coward]

I just don't give a damn.
 
And there in lies the heart of the problem.

Privacy oversight?

[HalAtWork]

They definitely did overlook privacy on this one.

obvious sham.

[JustNiz]

>> saying that while their methods were "close to the line of constitutional reasonableness," they were used for good reason.

This is an obvious sham. Someone's justfication of their actions should have absolutely no effect on judging whether they actually broke the law or not.

independent?

[umghhh]

How independent is this 'independent' US government agency?

As a non-American...

[Captain_Chaos]

As a non-American, on whom it is apparently OK to spy as much as you want, may I just say: fuck you. Fuck you very much.

Re:As a non-American...

[Anonymous Coward]

I can just agree to that! And Im really pissed off that our BND is working together with these fucking guys from the NSA and that we dont offer Snowden asylum in Europe.

Re: 191 page report

[TaoPhoenix]

The report is a bit more clever than that, and *parts* of it are actually good. It's certainly more info than I ever knew before, and than they would have ever released before.

The way these "Devils in Details" landmined reports work is that 95% of it is legit, and builds a legit case towards ... what you think it should. Then at the very capstone when it comes time to produce the conclusion, they flip a key paragraph as the landmine. In a perfect world, let's say we ever magically elect a both incredibly powerful party majority and an incredibly honest one, they can take this report, reverse the landmine paragraphs, and end up with the correct result.

Try looking near pages 98-99.

This is the paragraph that echoes this entire thread:
"On the other side of the coin, the acquisition of private communications intrudes on Fourth Amendment interests. Even though U.S. persons and persons located in the United States are subject to having their telephone conversations collected only when they communicate with a targeted foreigner located abroad, the program nevertheless gains access to numerous personal conversations of U.S. persons that were carried on under an expectation of privacy. Email communications to and from U.S. persons, which the FISA court has said are akin to âoepapersâ protected under the Fourth Amendment,426 are also subject to collection in a variety of circumstances."

At this point everyone is clamoring for the followup to be "Unconstitutional so get rid of it." As they say, "always put one concession to your opponent's position in an argument", so here I say, "it is not possible under any form of intelligence work to have *zero* US-US information showing up, such as because any email to that sketchy girlfriend with a CC to your US buddy on it, drags him along along for the ride." Of course that's a minimal data point, but this thread has been about the issue of Non-Zero data collection.

*However*, then they threw their landmine in.

Over on page 99:

"The government has acknowledged that the Fourth Amendment rights of U.S. persons are affected when their communications are acquired under Section 702 incidentally or otherwise, and it has echoed the FISA courtâ(TM)s observation that the implementation of adequate minimization procedures is part of what makes the collection reasonable. (See footnote 433)"

So before everyone jumps on the word "reasonable", *that's* their landmine. You get Schrodinger's Cat scenarios with that email because as soon as they even see whose names are on it, one to Osama Bin Laden's hot neice's Iranian cousin staying in the Netherlands, and one to your radical US buddy, they *already have* metadata! So they decide to open it, whereupon it contains some nice NSFW Rule34/Rule35 pictures, and a PS memo on the bottom of it with a piece of info that actually qualifies as intelligence. Great. Now you have an email that pisses off at least four countries. What do you do with that?! (After you finish grinning lewdly and more to the pictures!)

So the *actual* word to mess with is "Adequate". After you finish laughing at my scenario, is that an *adequate* acquisition of US citizen data? I don't know. So saying "Aha! A right was violated, abolish the entire agency!!" is not the answer. The only one I can think of is a percentage one of some kind, such as "less than X% of US communications were collected, as verified by an auditor that you actually believe." Then we can all start over deciding what that percentage is.

Not the only criterion...

[Entropius]

Just because something's constitutional it's not necessarily a good idea, and in a government like ours the decision whether to do it or not ought to lie in the hands of the citizens.

No.

[Anonymous Coward]

The constitution doesn't state that it is null/void in special circumstances or can be circumvented due to a 'good cause'.

Sad - the sheeple will still accept it.

Next guy also to get a prize

[Frankie70]

With Obama's current approval ratings at around 40, there is a good chance the next guy is also going get some price at entry for not being Obama.

Re: 191 page report

[jeIlomizer]

So saying "Aha! A right was violated, abolish the entire agency!!" is not the answer.

At this point, it definitely is.