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Yahoo Email Scan Shows US Spy Push To Recast Constitutional Privacy (reuters.com)

Posted by BeauHD on from the red-flag dept.

An anonymous reader quotes a report from Reuters: Yahoo Inc's secret scanning of customer emails at the behest of a U.S. spy agency is part of a growing push by officials to loosen constitutional protections Americans have against arbitrary governmental searches, according to legal documents and people briefed on closed court hearings. The order on Yahoo from the secret Foreign Intelligence Surveillance Court (FISC) last year resulted from the government's drive to change decades of interpretation of the U.S. Constitution's Fourth Amendment right of people to be secure against "unreasonable searches and seizures," intelligence officials and others familiar with the strategy told Reuters. The unifying idea, they said, is to move the focus of U.S. courts away from what makes something a distinct search and toward what is "reasonable" overall. The basis of the argument for change is that people are making much more digital data available about themselves to businesses, and that data can contain clues that would lead to authorities disrupting attacks in the United States or on U.S. interests abroad. While it might technically count as a search if an automated program trawls through all the data, the thinking goes, there is no unreasonable harm unless a human being looks at the result of that search and orders more intrusive measures or an arrest, which even then could be reasonable. Civil liberties groups and some other legal experts said the attempt to expand the ability of law enforcement agencies and intelligence services to sift through vast amounts of online data, in some cases without a court order, was in conflict with the Fourth Amendment because many innocent messages are included in the initial sweep. But the general counsel of the Office of the Director of National Intelligence (ODNI), Robert Litt, said in an interview with Reuters on Tuesday that the legal interpretation needed to be adjusted because of technological changes.

3 of 65 comments (clear)

  1. Strict scrutiny by Anonymous Coward · · Score: 2, Interesting

    Courts need to apply strict scrutiny to mass surveillance. That means questioning whether the measures are sufficient to significantly reduce terrorism, but that the measures are also the least restrictive way to do so. Because this involves the Bill of Rights, strict scrutiny needs to be applied. If mass surveillance was truly necessary and effective at preventing terrorism, I'd support it. However, it's not, nor does that reasoning apply to the prevention of most other crimes that are typically cited as justification for this. Just because law enforcement and spies say they want certain powers doesn't mean that those requests should be granted. My hope is that we'll eventually realize that treating everyone like a terrorist is as ridiculous as treating everyone like a Communist agent.

    1. Re:Strict scrutiny by ASDFnz · · Score: 5, Interesting

      I get where you are going but the US has been into mass surveillance for so damn long with the approval of the American public it has only been a matter of time before those techniques are focused back on their own populous (I say that knowing full well that they probably already have).

      I don't think there is any turning back now, it is like only finding out about the slippery slope when you are already at the bottom unfortunately. I don't think the "it is alright to spy on everyone else, just not us" permission that was given to the US government by the US people was intended to turn out like this but there you have it.

  2. Too late to vote, but SCOTUS could fix things by raymorris · · Score: 4, Interesting

    > the US has been into mass surveillance for so damn long with the approval of the American public ... I don't think there is any turning back now

    I don't see public opinion forcing major changes, except possibly as part of a larger party platform, if for example the Libertarian party came to power of the next 20 years.

    However, the Constitution already bars unreasonable searches, and the Supreme Court can strike down the Foreign Intelligence Surveillance Act, without any massive political movement or cooperation from any government agency. In fact, the Southern District has already struck down the section of the Patriot Act which allows National Security Letters. The court ruled that the NSA mass phone records program was unconstitutional. That's already happened, and more decisions along those lines may be coming.