Police reports are public record. They have to be, otherwise journalists could never find out whether the young man bitching he's being unfairly targeted because he's black is actually being targeted because he's black.
The government is not a business. It has different rights then businesses. For example, a business can get away with all kinds of discrimination that a governmental unit could not -- prayer at meetings, mandatory hours on Saturday, etc. The government can't do those things. OTOH the government can arrest you as long as they file the right paperwork (mostly warrants).
Which means that unless there's a specific Constitutional clause, or Congressional statute on data retention in play here the Navy can keep whatever data it wants.
It probably should have some statute restricting the time it keeps info on some of this stuff, but if that law hasn't already been passed then it isn't currently in effect.
I meant to add: in my opinion, it has all been a deliberate attempt by the Bush and Obama administrations to muddle up the Separation of Powers.
That's designed into the system.
The theory is that the Executive will always be nibbling at Congressional authority, and Congress will always be nibbling at the President's authority. Nobody ever gets all the authority, therefore freedom is protected.
If Congress wants to make a huge deal about something it can by either a) refusing to fund the government, or b) impeaching him. If Obama wants to make a huge deal about something he can veto budget bills. Since they don't do that the Courts can't really intervene very much.
One of the better features of the system is that it allows the amount of authority the various players has to change based on the situation. Clearly during the middle of WW2 Congress should have given up a lot of it's power to the Executive because FDR was kinda busy. Equally clearly during the mid-90s Clinton didn't need that kind of authority. If the Courts were wont to intervene in Executive/Legislative disputes then WW2 would probably have died in Committee.
Separation of Powers can't mean separation of authority if the Power-holding-entities are also supposed to check and balance each-other. If the President had clear, 100% control of everything the military did and Congress had clear 100% control of everything the Department of the Interior did then they couldn't check each-other. Obama would be Army-King ant give a shit about Interior, and vice-versa. This leads to an extremely intricate, complicated, procedure up-top for doing everything because everyone has to be involved at some step in the operation. It requires a lot of intricate dancing between the various entities concerned to keep running, and a certain amount of legal bullshittery that can only be described as "hacking."
The National Guard is actually the perfect example. The Feds needed the state militias to all have the same equipment, training, etc. or they wouldn't be able to fight effectively as Army units; and Constitutionally they are supposed to be most of the Army. So in the early 20th the Feds started paying for the damn things on condition that they could use militia units whenever they felt like it. But the courts ruled that was wrong. If Sergeant Bob (Kentucky militia) does not want to help flood victims in Ohio then the President can't make him leave Kentucky.
So now all National Guard units are technically both the militias of their state AND Federal employees. If the Feds need Sergeant Bob of Kentucky to do something Sg. Bob (US Army) gets orders. If Kentucky needs him Sg. Bob (KY Militia) gets orders. Bob has two retirement plans based on State and Federal Active Duty days. Many states actually have a non-Federal component to their militias which is unarmed (states are too cheap to pay for insurance in case somebody gets accidentally shot at training, so they generally can't even bring their own personally-owned firearms to drill days), such as the Ohio Military Reserve or the Texas State Guard.
As for "lending" assets, that's perfectly legal. There's an exception to Posse Comitatus if the local cops ask for help in writing. It is actually intended to stop the US Army from coming in and forcing a state to prosecute crimes the state doesn't want to prosecute, not to allow an individual to escape prosecution by said state just because he's found a state that can't track his ass down without the Army's help. Specifically the law was intended to allow racist white southern states to oppress their black residents without fear of US Army retaliation, and since it can be made to sound like a very sensible limit on Federal power it has remained.
Finally somebody who has actually understood the law.
Now if only somebody else on this thread, anybody else, would pay attention to the "abuses" it was supposed to stop and acknowledge that, in practical terms, this is the law that legitimized the greatest evil the American government has ever perpetrated on it's citizens I'll be very happy.
They share the data with local law enforcement and the FBI. Which makes it a clear violation. The less obvious violation is what they are using the data for... which is to help them prevent a terrorist act. Something they should not be involved in.
So the agency that we use to fight terrorists is never allowed to fight terrorists? You just contr5adicted yourself.
The problem is that, while you have read plenty of interpretation of the Act by gun-nuts, and may even have read the Act itself, you don't understand what it means. It means the Federal military can't use it's troops to enforce local laws without the permission of local authorities. In particular you do not know what a "posse comitatus" is, and you seem to think that the phrase "search, seizure, arrest, or similar activity" applies to databases of publicly available information. A posse comitatus is a bunch of guys who have legal authority to enforce the law. A database has nothing to do with posses. The "search, etc." clause could apply to data gathering, but it only applies to gathering the kind of data you need a Fourth-Amendment-type warrant to get. It doe3s not apply to publicly available records. So the Navy has every right to view these records, which means it has every right to record those records, and it has every right to tell people about those records.
Now let's say your dreams comes true, and the judges who have granted warrants allowing big-data-databases change their minds. Posse comitatus still doesn't apply because the military is allowed to help law enforcement if asked by the right guy (generally a Mayor, Governor, or his designees), and anyone searching the database on behalf of law enforcement would count.
WTF? This is so wrong on so many levels that I can't believe it.
Number one, the Posse Comitatus Act is the reason we had Jim Crow. In 1876 local gun-owners throughout the South want'd to lynch their way to segregation but the Federal goddamn Army refused to let them. Between the passage of this Act, and Eisenhower sending the Federal goddamn Army into Little Rock Schools racist terrorists managed to drive the black population of every southern state down by 10 points. In several it was more like 30. South Carolina and Mississippi, for example, were roughly 60% black prior to Posse Comitatus. The Confederacy as a whole had been 40% black. If it was 40% black today no Conservative candidate would ever win. The whole incident is by far the most evil thing the US has ever done to it's citizens, and you are implying it is actually useful in protecting freedom.
Number two, it has nothing to do with the Feds ability to compile information. It stops the Army from enforcing local laws. But a) that doesn't mean they can't compile info on whose been breaking said laws, and b) it doesn't apply if the Executive authority of the local jurisdiction asks for help. So if an officer of the Mayor, for example a Police Officer, walks up to a Federal soldier and says "please tell me everything you know about the bad things this person has done," the under the Posse Comitatus Act the soldier has every right to comply. This was quite effective in ethnically cleansing the South because a) southerners could typically arrange it so that a Mayor/cop/etc. who would ask the Feds for help was no longer Mayor/cop/etc. (in Arkansas there was actually a coup d'tat against the Governor), and b) it showed all Army officers that stopping racist oppression was a bad career move.
Like I said in the comment above I got a file and it doesn't require the internet to play.
I suspect what's going on is that Flixter and Ultraviolet have a complicated relationship I don't understand, one (or the other) is supposed to be solely streaming, and the other sells files; and a bunch of people misread thew FAQ.
I got a 1.64 GB file, which plays fine even when I turn my WiFi off.
I thought that (by definition) made it a not-streaming video, but hey. Everyone's bitching it's streaming so clearly I don't know what I'm talking about.
I understand your argument perfectly. You think that if the Fourth bans massive, intrusive, law-enforcement databases in government hands then (under several common law principles) it bans the government from using those in private hands.
The problems with your argument are two-fold. First the databases are not explicitly banned. What's explicitly banned is government agents doing the search to find the information that can be put into the database. You can argue this means they are implicitly banned, but government access to the 18th-century equivalent of a massive database (ie: some dude's memory and/or paper records) is explicitly allowed by the "oaths and affirmations" clause. Given that the current Supreme Court's response to unwarranted GPS tracking was to consider whether the Founders would have thought it was legal for an 18th-century cop to hide in a carriage that's pretty important. They're gonna say "If the government can use 'oaths and affirmations,' then it can pay for those 'oaths or affirmations,' and it doesn't matter that the 'oath' comes from a database."
The second problem is that Common Law cannot trump the Constitution, or Statute, or even an Executive Order. Common Law provides a bunch of very basic legal principles that allow the government to function without bothering to recreate every legal idea that's ever existed. But it can't trump the laws that governments do create. Some states, for example, define the crime of "robbery" in their criminal codes. Virginia doesn't. That means in Virginia the common-law definition is used (in legal parlance it is "controlling), whereas in those other states the non-common-law definition is controlling. When common law contradicts a state-level statute common law loses.
So you have to base your argument solely on the Constitution. Common law just is so low-level that state-level statutes can change it, therefore the federal Constitution kicks it's ass. Since Nixon started gutting Judicial activism in the 70s, your argument has to be based on a fairly literal reading of the Constitution. Judges who speculate on 18th-century GPS just are not gonna go for an argument based on a vague principle that isn't explicitly defined, and isn't related directly to the technologies available in 1789..
Are you sure you're not the one twisting the Constitution? Because it seems to me that you have an idea of what a reasonable Constitution should say, and you're subconsciously reading that into our Constitution. This is what our Constitution has to say about law enforcement's right to gather information:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That's not a blanket ban on information-gathering. It explicitly allows the government to gather whatever information it wants, as long as the method used to gather that information is not an "unreasonable search." It's allowed to do unreasonable searches, provided it gets a Judge to sign off on the warrant, and the warrant is limited in scope.
You'll also note that the Amendment cannot be used to protect you from things other people tell the government because those other people are agreeing to be searched when they snitch, which means the government doesn't need a warrant. In fact the Amendment assumes snitching is legal because "oaths or affirmations" from third parties about you are written into the Amendment. Which means you can't ban a business specifically designed to create aforesaid "oaths and affirmations" without breaking the Amendment you're claiming to be defending.
It would be very nice if the Founders had included a privacy Amendment that actually protected privacy. But they didn't. They wrote an Amendment that protects people from searches (but only unreasonable searches) by government agents. They also have a First Amendment allowing you to personally record any information you want, and tell that information to whomever you want for whatever price you want. It's called the First Amendment.
The US Constitution is not common law. Common Law is only binding on the Federal government to the extent that it supplies the definitions of words, phrases, and legal concepts that are actually explicitly in the Constitution. You "can't say "Common Law principle X restricts ordinary people, therefore it restricts the government." That just isn't the case.
The airplane analogy is quite instructive. Just as I am not legally allowed to fly a plane, the government is not legally allowed to create certain massive databases*. But since other people are allowed to do these things (ie: fly a plane or create a massive, intrusive database), both me and the government can pay them to do it.
As I've said before, this is actually the biggest security hole we've found in 200 years of Constitutional Law. It's trivial for a bad actor in government to get someone outside of government, and thus not restricted by any of the Constitutional bans on governmental oppression, to do the dirty work. He won't be as efficient as the Gestapo or KGB, and he needs some help from all three branches; but that doesn't mean he can't actually do his dirty work.
And the problem is in the basic architecture of the document. It can't be fixed without an Amendment or a bunch of Judges who are convinced the country will be much better off if they BS this one.
*The Census Bureau and the IRS are examples of perfectly legal extremely massive databases.
You miss my point. It's the exact same argument that the NSA put forth a week ago that FISA shot down at that time. If a lawsuit was determinative this week, then it should have been last week as well. The argument of why didn't change, yet FISA flip-flopped when it happened in practice.
The difference is that instead of government lawyers making the point, it was their fellow judges. When a lawyer tells you you really should do what his clients always wanted because that'll hurt said clients you're not supposed to believe him.
When a Judge says the same thing you're legally required to believe him.
Which principle of common law are you referring to? Most principles of common law don't actually apply to the government. Sovereign immunity is a bitch. Even for non-governments, just because it's illegal for you to do something doesn't mean it's illegal for you to pay someone else to do that thing. If you don't have a pilot's license you can still pay someone with such a license to fly you places.
The Founders solution to the Patriot Act problem would probably have been periodic Constitutional conventions. Unlike us, they had lived under four very different Constitutional regimes (the Brits, the Continental Congress of the Revolution, the Articles of Confederation, and the Constitution); so they'd probably be very surprised that we decided to have a permanent Army but still hadn't amended the Constitution to allow ourselves a permanent army. Or that we'd decided Judicial Review was great but still hadn't written it into the Constitution.
The FISA Court sided with you in ordering the data destroyed. But that really screws up the lawsuit against the NSA because if the data's destroyed it's trivial for the NSA to lie about how useful it was. You can't really prove that cell phone metadata wasn't a key factor in the capture of Criminal X if the metadata has all been deleted.
So the district court ordered the NSA to keep the data, and the FISA Court said that's okay as long as they don't look at it.
By this standard Snowden is also guilty of treason. He didn't protect US Democracy at all when he revealed the NSA and Aussies were spying on Australia. But he did certainly make it harder for the Indonesians to ally with us.
Of course that's ridiculous, which is why historically you have to be either actually shooting at the US, or supplying info to people actually shooting at the US, to count; and nobody involved in the NSA leaks has been doing that.
Re-read the Constitution. It's only about democracy in the wet dreams of particularly stupid high school civics teachers.
It specifically allows slavery, even tho it's too cowardly to use the word. It even gives slave-holding states extra votes in Congress. There is no right to vote. The Constitution was adopted partly because the preceding Articles of Confederation hadn't created a strong enough government to ethnically cleanse Ohio of Indians properly.
I'll admit that it turned into a fairly democratic, and pro-freedom document; and that the Founders were really good at pretending they only wanted to protect freedom. But we were not a Democracy in any meaningful sense of the term prior to the Abolition of Slavery, and we not really a very good Democracy until LBJ broke segregation. Since the legal definition of treason precede both events it cannot possibly be related to the US being a democracy.
Of course by definition 3, Snowden is treasonous, because he betrayed his agreement to not snitch on the NSA.
There's a very good reason that anybody who accuses him of being a traitor gets introduced to the legal definition that actually matters in the US: the one in the Constitution.
... to prove we're not abusing it. Yeah, that's the ticket.
(No, this seems like a possibly reasonable decision, for normal courtish type reasons)
The legal reasoning is actually the opposite of what you're thinking.
The anti-NSA-lawyers are in a really tough spot. They have to prove the database is a net harm to America, which means they have to be able to prove that it does more harm then good. If they don;t have access to the data, and some NSA guy claims that OJ Simpson would have been able to flee to Botswana if only that one call to a travel agent hadn't been in the database, they are totally fucked.
That's statutory law, which applies to us normal people. It only applies to the government when the government wants it to. In Constitutional law (which does apply to the government) the Fourth Amendment bans unreasonable searches by government agents. The First Amendment allows private citizens to say pretty much anything they want. Thus if I'm a private citizen and I legally obtain a bunch of data on my neighbors, I have a First Amendment right to sell that data. Since the data is (legally speaking) my property, the government can buy it. If a "search" is happening I'm the one being searched, and I consented to the search when I cashed their check.
This is the disadvantage of having a 225-year-old Constitution that is almost never amended, and is virtually impossible to update because everyone worships. Constitutional protections that would have been perfectly adequate in 1789 are obsolete because work-arounds have been discovered, and it takes 38 states to deal with the work-around. And it's very difficult to find an issue where 13 states won't torpedo the whole shebang because Cali/Texas/etc. already signed on and those people are crazy.
Let me put it to you another way: The Constitution and a software program are similar in that they are sets of instructions created for a specific entity (in the Constitution's case, the government; in the program's case, a given computer) to follow. They are also similar in that bad guys will try to abuse the instructions. In the government's case, potential oppressors need to get around the letter of various protections, in the programs case black-hat hackers want to get it to do something it's not intended to do.
The Constitution is more then two centuries old. It got 10 Amendments in 1791. Which means that since 1792 it's got 17 Amendments in 222 years. That's one every 13 years.
You would not be surprised that a computer program that old, which is patched less then once a decade, had some pretty glaring security flaws that needed to be fixed. Are you really surprised the Constitution is equally in need of an update?
Right now my best plan would be to create some new, privacy-protecting entity to hold most of this data. Then the Federal Data Storage Service only talks to the CIA/FBI etc. when there's a specific warrant. The NSA gets totally cut out because they are a Signals Intelligence service, which means that they are only supposed to be involved in collecting data, not using it. This would protect privacy, while still allowing the government to get it's hand on the digital records of people it needs to spy on.
The FDSS idea would be a lot more effective at protecting privacy then any of the ideas I've seen so far from anyone else. Federal Agencies are pretty good at following various legal standards protecting people's privacy if those legal standards are actually written into the statute authorizing them. The IRS/Social Security/Census Bureau/VA/etc. all have records several thousand times more sensitive then any NSA metadata, and yet the NSA hasn't been able to incorporate them into it's databases. It's not perfect, but it's a lot more likely to work then alternatives like simply banning the government from collecting this info itself.
This is because privates contractors could do the job. Private contractors typically have a right to record any data they find on you (if they didn't paparazzi would be incredibly easy to ban), and it's virtually impossible to ban the government from buying info that sold to the public. Which means if a private contractor has a drone that flies around your neighborhood taking pictures of license plates, and then sells the data on any given plate to anyone for $25, the government now has the ability to know precisely when you leave for work for $25, and they don't need to bother with any of that silly warrant nonsense.
Yeah the data available to a contractor is different then the data available to the NSA, but if you make it really difficult for the government to get NSA-style data on everyone then you have by definition made it very difficult for them to get NSA-style data on any specific subset of "everyone" including criminals, and law enforcement at all levels has a very strong interest in throwing those contractors enough $25 queries that they'll be able to get something on drug dealers.
If that's the case you're making you don't argue that "OMG! The Stasi! had fingerprints!" you argue "OMG! The Stasi had everyone's fingerprints!" Fingerprints are clearly a useful law enforcement tool, just as having a suspected criminals entire Facebook/google history is a useful law enforcement tool.
There're basically two ways to fix the NSA problem:
1) Get Congress to skoosh all mass-data collection initiatives by defunding them.
2) Get our allies to bitch until they stop.
1 is a long shot. We can get some effective action in Congress (ie: grill these guys in front of committees), but nothing effective. If we could grow the coalition, that would help a lot. Stories like this don't help much.
2 is not gonna actually happen. They'll issue press releases, have self-righteous press conferences, and go through the motions of bitching; but they ain't actually gonna rock the boat in NATO as long as Putin exists. They prefer to be surveilled by the least-secret-secret agency to paying for toys that can stop the Russian Army.
If he never tried to go through Congress he didn't try to go through channels.
So which congresscritter do you work for? That's the only explanation that I can imagine for such an absurd comment.
Are you denying the entire point of having a $multi-billion Congress is to check Executive over-reach, or are you claiming they suck at their jobs?
I will agree they suck at their jobs, particularly the stopping-fighting-about-stupid-shit-so-the-fucking-bills-can-get-paid bit of their jobs. OTOH, it would have been really nice if one of the fights of the past few years was actually something they could win.
Unfortunately this comment is mostly accurate. But it's not entirely accurate.
Wyden knew this shit because they told him, but he was not actually allowed to tell anyone else about it. Which meant that the NSA could ignore and/or lie about the programs when he tried to hold them accountable in committee hearings, which in turn meant that none of the Tea Party-types in the House who could help him defund PRISM ever found out about it.
If Wyden had a single email from Snowden saying "this program exists, and it sucks," then when Wyden asks those questions and gets stonewalled he is allowed to go on TV saying he knows he was stonewalled because he's got an email from an NSA contractor. Which means Amash can work with him on solving the problem.
If he never tried to go through Congress he didn't try to go through channels. Their major job is to be a Check on the executive preventing overreach, whereas anyone he could actually talk to in the office's major job is to further Executive branch overreach. That is the entire point of having an elaborate system of checks and balances. Everybody (in both the Executive and the Legislative) is always supposed to be trying to oppress us, but they are supposed to be failing miserably because the other policy-making branch thwarts them.
I don't necessarily blame Snowden for not knowing this. Americans tend to know what checks and balances are in theory, and have a decent ability to explain why the theory works, but if you try to get them to think of any of the implications of the theory (ie: if I'm in the Executive, and I think the boss is breaking the Constitution, I get Congress to check that shit) they have absolutely no clue. OTOH, the fact that he didn;t know this means his Crusade is doomed and everything will be swept under the rug.
Slashdot Mirror
Police reports are public record. They have to be, otherwise journalists could never find out whether the young man bitching he's being unfairly targeted because he's black is actually being targeted because he's black.
The government is not a business. It has different rights then businesses. For example, a business can get away with all kinds of discrimination that a governmental unit could not -- prayer at meetings, mandatory hours on Saturday, etc. The government can't do those things. OTOH the government can arrest you as long as they file the right paperwork (mostly warrants).
Which means that unless there's a specific Constitutional clause, or Congressional statute on data retention in play here the Navy can keep whatever data it wants.
It probably should have some statute restricting the time it keeps info on some of this stuff, but if that law hasn't already been passed then it isn't currently in effect.
I meant to add: in my opinion, it has all been a deliberate attempt by the Bush and Obama administrations to muddle up the Separation of Powers.
That's designed into the system.
The theory is that the Executive will always be nibbling at Congressional authority, and Congress will always be nibbling at the President's authority. Nobody ever gets all the authority, therefore freedom is protected.
If Congress wants to make a huge deal about something it can by either a) refusing to fund the government, or b) impeaching him. If Obama wants to make a huge deal about something he can veto budget bills. Since they don't do that the Courts can't really intervene very much.
One of the better features of the system is that it allows the amount of authority the various players has to change based on the situation. Clearly during the middle of WW2 Congress should have given up a lot of it's power to the Executive because FDR was kinda busy. Equally clearly during the mid-90s Clinton didn't need that kind of authority. If the Courts were wont to intervene in Executive/Legislative disputes then WW2 would probably have died in Committee.
Separation of Powers can't mean separation of authority if the Power-holding-entities are also supposed to check and balance each-other. If the President had clear, 100% control of everything the military did and Congress had clear 100% control of everything the Department of the Interior did then they couldn't check each-other. Obama would be Army-King ant give a shit about Interior, and vice-versa. This leads to an extremely intricate, complicated, procedure up-top for doing everything because everyone has to be involved at some step in the operation. It requires a lot of intricate dancing between the various entities concerned to keep running, and a certain amount of legal bullshittery that can only be described as "hacking."
The National Guard is actually the perfect example. The Feds needed the state militias to all have the same equipment, training, etc. or they wouldn't be able to fight effectively as Army units; and Constitutionally they are supposed to be most of the Army. So in the early 20th the Feds started paying for the damn things on condition that they could use militia units whenever they felt like it. But the courts ruled that was wrong. If Sergeant Bob (Kentucky militia) does not want to help flood victims in Ohio then the President can't make him leave Kentucky.
So now all National Guard units are technically both the militias of their state AND Federal employees. If the Feds need Sergeant Bob of Kentucky to do something Sg. Bob (US Army) gets orders. If Kentucky needs him Sg. Bob (KY Militia) gets orders. Bob has two retirement plans based on State and Federal Active Duty days. Many states actually have a non-Federal component to their militias which is unarmed (states are too cheap to pay for insurance in case somebody gets accidentally shot at training, so they generally can't even bring their own personally-owned firearms to drill days), such as the Ohio Military Reserve or the Texas State Guard.
As for "lending" assets, that's perfectly legal. There's an exception to Posse Comitatus if the local cops ask for help in writing. It is actually intended to stop the US Army from coming in and forcing a state to prosecute crimes the state doesn't want to prosecute, not to allow an individual to escape prosecution by said state just because he's found a state that can't track his ass down without the Army's help. Specifically the law was intended to allow racist white southern states to oppress their black residents without fear of US Army retaliation, and since it can be made to sound like a very sensible limit on Federal power it has remained.
Finally somebody who has actually understood the law.
Now if only somebody else on this thread, anybody else, would pay attention to the "abuses" it was supposed to stop and acknowledge that, in practical terms, this is the law that legitimized the greatest evil the American government has ever perpetrated on it's citizens I'll be very happy.
They share the data with local law enforcement and the FBI. Which makes it a clear violation. The less obvious violation is what they are using the data for... which is to help them prevent a terrorist act. Something they should not be involved in.
So the agency that we use to fight terrorists is never allowed to fight terrorists? You just contr5adicted yourself.
The problem is that, while you have read plenty of interpretation of the Act by gun-nuts, and may even have read the Act itself, you don't understand what it means. It means the Federal military can't use it's troops to enforce local laws without the permission of local authorities.
In particular you do not know what a "posse comitatus" is, and you seem to think that the phrase "search, seizure, arrest, or similar activity" applies to databases of publicly available information. A posse comitatus is a bunch of guys who have legal authority to enforce the law. A database has nothing to do with posses. The "search, etc." clause could apply to data gathering, but it only applies to gathering the kind of data you need a Fourth-Amendment-type warrant to get. It doe3s not apply to publicly available records. So the Navy has every right to view these records, which means it has every right to record those records, and it has every right to tell people about those records.
Now let's say your dreams comes true, and the judges who have granted warrants allowing big-data-databases change their minds. Posse comitatus still doesn't apply because the military is allowed to help law enforcement if asked by the right guy (generally a Mayor, Governor, or his designees), and anyone searching the database on behalf of law enforcement would count.
WTF? This is so wrong on so many levels that I can't believe it.
Number one, the Posse Comitatus Act is the reason we had Jim Crow. In 1876 local gun-owners throughout the South want'd to lynch their way to segregation but the Federal goddamn Army refused to let them. Between the passage of this Act, and Eisenhower sending the Federal goddamn Army into Little Rock Schools racist terrorists managed to drive the black population of every southern state down by 10 points. In several it was more like 30. South Carolina and Mississippi, for example, were roughly 60% black prior to Posse Comitatus. The Confederacy as a whole had been 40% black. If it was 40% black today no Conservative candidate would ever win. The whole incident is by far the most evil thing the US has ever done to it's citizens, and you are implying it is actually useful in protecting freedom.
Number two, it has nothing to do with the Feds ability to compile information. It stops the Army from enforcing local laws. But a) that doesn't mean they can't compile info on whose been breaking said laws, and b) it doesn't apply if the Executive authority of the local jurisdiction asks for help. So if an officer of the Mayor, for example a Police Officer, walks up to a Federal soldier and says "please tell me everything you know about the bad things this person has done," the under the Posse Comitatus Act the soldier has every right to comply. This was quite effective in ethnically cleansing the South because a) southerners could typically arrange it so that a Mayor/cop/etc. who would ask the Feds for help was no longer Mayor/cop/etc. (in Arkansas there was actually a coup d'tat against the Governor), and b) it showed all Army officers that stopping racist oppression was a bad career move.
Like I said in the comment above I got a file and it doesn't require the internet to play.
I suspect what's going on is that Flixter and Ultraviolet have a complicated relationship I don't understand, one (or the other) is supposed to be solely streaming, and the other sells files; and a bunch of people misread thew FAQ.
I'm a backer.
I got a 1.64 GB file, which plays fine even when I turn my WiFi off.
I thought that (by definition) made it a not-streaming video, but hey. Everyone's bitching it's streaming so clearly I don't know what I'm talking about.
I understand your argument perfectly. You think that if the Fourth bans massive, intrusive, law-enforcement databases in government hands then (under several common law principles) it bans the government from using those in private hands.
The problems with your argument are two-fold. First the databases are not explicitly banned. What's explicitly banned is government agents doing the search to find the information that can be put into the database. You can argue this means they are implicitly banned, but government access to the 18th-century equivalent of a massive database (ie: some dude's memory and/or paper records) is explicitly allowed by the "oaths and affirmations" clause. Given that the current Supreme Court's response to unwarranted GPS tracking was to consider whether the Founders would have thought it was legal for an 18th-century cop to hide in a carriage that's pretty important. They're gonna say "If the government can use 'oaths and affirmations,' then it can pay for those 'oaths or affirmations,' and it doesn't matter that the 'oath' comes from a database."
The second problem is that Common Law cannot trump the Constitution, or Statute, or even an Executive Order. Common Law provides a bunch of very basic legal principles that allow the government to function without bothering to recreate every legal idea that's ever existed. But it can't trump the laws that governments do create. Some states, for example, define the crime of "robbery" in their criminal codes. Virginia doesn't. That means in Virginia the common-law definition is used (in legal parlance it is "controlling), whereas in those other states the non-common-law definition is controlling. When common law contradicts a state-level statute common law loses.
So you have to base your argument solely on the Constitution. Common law just is so low-level that state-level statutes can change it, therefore the federal Constitution kicks it's ass. Since Nixon started gutting Judicial activism in the 70s, your argument has to be based on a fairly literal reading of the Constitution. Judges who speculate on 18th-century GPS just are not gonna go for an argument based on a vague principle that isn't explicitly defined, and isn't related directly to the technologies available in 1789..
Are you sure you're not the one twisting the Constitution? Because it seems to me that you have an idea of what a reasonable Constitution should say, and you're subconsciously reading that into our Constitution. This is what our Constitution has to say about law enforcement's right to gather information:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That's not a blanket ban on information-gathering. It explicitly allows the government to gather whatever information it wants, as long as the method used to gather that information is not an "unreasonable search." It's allowed to do unreasonable searches, provided it gets a Judge to sign off on the warrant, and the warrant is limited in scope.
You'll also note that the Amendment cannot be used to protect you from things other people tell the government because those other people are agreeing to be searched when they snitch, which means the government doesn't need a warrant. In fact the Amendment assumes snitching is legal because "oaths or affirmations" from third parties about you are written into the Amendment. Which means you can't ban a business specifically designed to create aforesaid "oaths and affirmations" without breaking the Amendment you're claiming to be defending.
It would be very nice if the Founders had included a privacy Amendment that actually protected privacy. But they didn't. They wrote an Amendment that protects people from searches (but only unreasonable searches) by government agents. They also have a First Amendment allowing you to personally record any information you want, and tell that information to whomever you want for whatever price you want. It's called the First Amendment.
The US Constitution is not common law. Common Law is only binding on the Federal government to the extent that it supplies the definitions of words, phrases, and legal concepts that are actually explicitly in the Constitution. You "can't say "Common Law principle X restricts ordinary people, therefore it restricts the government." That just isn't the case.
The airplane analogy is quite instructive. Just as I am not legally allowed to fly a plane, the government is not legally allowed to create certain massive databases*. But since other people are allowed to do these things (ie: fly a plane or create a massive, intrusive database), both me and the government can pay them to do it.
As I've said before, this is actually the biggest security hole we've found in 200 years of Constitutional Law. It's trivial for a bad actor in government to get someone outside of government, and thus not restricted by any of the Constitutional bans on governmental oppression, to do the dirty work. He won't be as efficient as the Gestapo or KGB, and he needs some help from all three branches; but that doesn't mean he can't actually do his dirty work.
And the problem is in the basic architecture of the document. It can't be fixed without an Amendment or a bunch of Judges who are convinced the country will be much better off if they BS this one.
*The Census Bureau and the IRS are examples of perfectly legal extremely massive databases.
You miss my point. It's the exact same argument that the NSA put forth a week ago that FISA shot down at that time. If a lawsuit was determinative this week, then it should have been last week as well. The argument of why didn't change, yet FISA flip-flopped when it happened in practice.
The difference is that instead of government lawyers making the point, it was their fellow judges. When a lawyer tells you you really should do what his clients always wanted because that'll hurt said clients you're not supposed to believe him.
When a Judge says the same thing you're legally required to believe him.
Which principle of common law are you referring to? Most principles of common law don't actually apply to the government. Sovereign immunity is a bitch. Even for non-governments, just because it's illegal for you to do something doesn't mean it's illegal for you to pay someone else to do that thing. If you don't have a pilot's license you can still pay someone with such a license to fly you places.
The Founders solution to the Patriot Act problem would probably have been periodic Constitutional conventions. Unlike us, they had lived under four very different Constitutional regimes (the Brits, the Continental Congress of the Revolution, the Articles of Confederation, and the Constitution); so they'd probably be very surprised that we decided to have a permanent Army but still hadn't amended the Constitution to allow ourselves a permanent army. Or that we'd decided Judicial Review was great but still hadn't written it into the Constitution.
Read the summary.
The FISA Court sided with you in ordering the data destroyed. But that really screws up the lawsuit against the NSA because if the data's destroyed it's trivial for the NSA to lie about how useful it was. You can't really prove that cell phone metadata wasn't a key factor in the capture of Criminal X if the metadata has all been deleted.
So the district court ordered the NSA to keep the data, and the FISA Court said that's okay as long as they don't look at it.
By this standard Snowden is also guilty of treason. He didn't protect US Democracy at all when he revealed the NSA and Aussies were spying on Australia. But he did certainly make it harder for the Indonesians to ally with us.
Of course that's ridiculous, which is why historically you have to be either actually shooting at the US, or supplying info to people actually shooting at the US, to count; and nobody involved in the NSA leaks has been doing that.
Re-read the Constitution. It's only about democracy in the wet dreams of particularly stupid high school civics teachers.
It specifically allows slavery, even tho it's too cowardly to use the word. It even gives slave-holding states extra votes in Congress. There is no right to vote. The Constitution was adopted partly because the preceding Articles of Confederation hadn't created a strong enough government to ethnically cleanse Ohio of Indians properly.
I'll admit that it turned into a fairly democratic, and pro-freedom document; and that the Founders were really good at pretending they only wanted to protect freedom. But we were not a Democracy in any meaningful sense of the term prior to the Abolition of Slavery, and we not really a very good Democracy until LBJ broke segregation. Since the legal definition of treason precede both events it cannot possibly be related to the US being a democracy.
Of course by definition 3, Snowden is treasonous, because he betrayed his agreement to not snitch on the NSA.
There's a very good reason that anybody who accuses him of being a traitor gets introduced to the legal definition that actually matters in the US: the one in the Constitution.
... to prove we're not abusing it. Yeah, that's the ticket.
(No, this seems like a possibly reasonable decision, for normal courtish type reasons)
The legal reasoning is actually the opposite of what you're thinking.
The anti-NSA-lawyers are in a really tough spot. They have to prove the database is a net harm to America, which means they have to be able to prove that it does more harm then good. If they don;t have access to the data, and some NSA guy claims that OJ Simpson would have been able to flee to Botswana if only that one call to a travel agent hadn't been in the database, they are totally fucked.
That's statutory law, which applies to us normal people. It only applies to the government when the government wants it to. In Constitutional law (which does apply to the government) the Fourth Amendment bans unreasonable searches by government agents. The First Amendment allows private citizens to say pretty much anything they want. Thus if I'm a private citizen and I legally obtain a bunch of data on my neighbors, I have a First Amendment right to sell that data. Since the data is (legally speaking) my property, the government can buy it. If a "search" is happening I'm the one being searched, and I consented to the search when I cashed their check.
This is the disadvantage of having a 225-year-old Constitution that is almost never amended, and is virtually impossible to update because everyone worships. Constitutional protections that would have been perfectly adequate in 1789 are obsolete because work-arounds have been discovered, and it takes 38 states to deal with the work-around. And it's very difficult to find an issue where 13 states won't torpedo the whole shebang because Cali/Texas/etc. already signed on and those people are crazy.
Let me put it to you another way:
The Constitution and a software program are similar in that they are sets of instructions created for a specific entity (in the Constitution's case, the government; in the program's case, a given computer) to follow. They are also similar in that bad guys will try to abuse the instructions. In the government's case, potential oppressors need to get around the letter of various protections, in the programs case black-hat hackers want to get it to do something it's not intended to do.
The Constitution is more then two centuries old. It got 10 Amendments in 1791. Which means that since 1792 it's got 17 Amendments in 222 years. That's one every 13 years.
You would not be surprised that a computer program that old, which is patched less then once a decade, had some pretty glaring security flaws that needed to be fixed. Are you really surprised the Constitution is equally in need of an update?
Right now my best plan would be to create some new, privacy-protecting entity to hold most of this data. Then the Federal Data Storage Service only talks to the CIA/FBI etc. when there's a specific warrant. The NSA gets totally cut out because they are a Signals Intelligence service, which means that they are only supposed to be involved in collecting data, not using it. This would protect privacy, while still allowing the government to get it's hand on the digital records of people it needs to spy on.
The FDSS idea would be a lot more effective at protecting privacy then any of the ideas I've seen so far from anyone else. Federal Agencies are pretty good at following various legal standards protecting people's privacy if those legal standards are actually written into the statute authorizing them. The IRS/Social Security/Census Bureau/VA/etc. all have records several thousand times more sensitive then any NSA metadata, and yet the NSA hasn't been able to incorporate them into it's databases. It's not perfect, but it's a lot more likely to work then alternatives like simply banning the government from collecting this info itself.
This is because privates contractors could do the job. Private contractors typically have a right to record any data they find on you (if they didn't paparazzi would be incredibly easy to ban), and it's virtually impossible to ban the government from buying info that sold to the public. Which means if a private contractor has a drone that flies around your neighborhood taking pictures of license plates, and then sells the data on any given plate to anyone for $25, the government now has the ability to know precisely when you leave for work for $25, and they don't need to bother with any of that silly warrant nonsense.
Yeah the data available to a contractor is different then the data available to the NSA, but if you make it really difficult for the government to get NSA-style data on everyone then you have by definition made it very difficult for them to get NSA-style data on any specific subset of "everyone" including criminals, and law enforcement at all levels has a very strong interest in throwing those contractors enough $25 queries that they'll be able to get something on drug dealers.
If that's the case you're making you don't argue that "OMG! The Stasi! had fingerprints!" you argue "OMG! The Stasi had everyone's fingerprints!" Fingerprints are clearly a useful law enforcement tool, just as having a suspected criminals entire Facebook/google history is a useful law enforcement tool.
There're basically two ways to fix the NSA problem:
1) Get Congress to skoosh all mass-data collection initiatives by defunding them.
2) Get our allies to bitch until they stop.
1 is a long shot. We can get some effective action in Congress (ie: grill these guys in front of committees), but nothing effective. If we could grow the coalition, that would help a lot. Stories like this don't help much.
2 is not gonna actually happen. They'll issue press releases, have self-righteous press conferences, and go through the motions of bitching; but they ain't actually gonna rock the boat in NATO as long as Putin exists. They prefer to be surveilled by the least-secret-secret agency to paying for toys that can stop the Russian Army.
If he never tried to go through Congress he didn't try to go through channels.
So which congresscritter do you work for? That's the only explanation that I can imagine for such an absurd comment.
Are you denying the entire point of having a $multi-billion Congress is to check Executive over-reach, or are you claiming they suck at their jobs?
I will agree they suck at their jobs, particularly the stopping-fighting-about-stupid-shit-so-the-fucking-bills-can-get-paid bit of their jobs. OTOH, it would have been really nice if one of the fights of the past few years was actually something they could win.
Unfortunately this comment is mostly accurate. But it's not entirely accurate.
Wyden knew this shit because they told him, but he was not actually allowed to tell anyone else about it. Which meant that the NSA could ignore and/or lie about the programs when he tried to hold them accountable in committee hearings, which in turn meant that none of the Tea Party-types in the House who could help him defund PRISM ever found out about it.
If Wyden had a single email from Snowden saying "this program exists, and it sucks," then when Wyden asks those questions and gets stonewalled he is allowed to go on TV saying he knows he was stonewalled because he's got an email from an NSA contractor. Which means Amash can work with him on solving the problem.
If he never tried to go through Congress he didn't try to go through channels. Their major job is to be a Check on the executive preventing overreach, whereas anyone he could actually talk to in the office's major job is to further Executive branch overreach. That is the entire point of having an elaborate system of checks and balances. Everybody (in both the Executive and the Legislative) is always supposed to be trying to oppress us, but they are supposed to be failing miserably because the other policy-making branch thwarts them.
I don't necessarily blame Snowden for not knowing this. Americans tend to know what checks and balances are in theory, and have a decent ability to explain why the theory works, but if you try to get them to think of any of the implications of the theory (ie: if I'm in the Executive, and I think the boss is breaking the Constitution, I get Congress to check that shit) they have absolutely no clue. OTOH, the fact that he didn;t know this means his Crusade is doomed and everything will be swept under the rug.