

The NSA's Surveillance Is Unconstitutional - jalanco
http://online.wsj.com/article/SB10001424127887323823004578593591276402574.html?mod=rss_opinion_main

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clarkevans
Does anyone realistically think this program will be rolled back?

Presuming for a moment that all the information collected by NSA is, in fact,
public information, it seems to me that the primary problem isn't collection
but asymmetric access and hence power differential between the state and those
governed. Why should the government have exclusive access to this information
while the general public doesn't? If this treasure trove of personal
connection graphs, cell phone discussions, location information, is all truly
public and not subject to a judge issued targeted warrant, then, why shouldn't
this public information be available to any member of the public?

This new information could be a boon for Democracy and completely change how
we understand and interact with Government. Why shouldn't technology impact
how we organize our society? Politicians and civil servants, who have the
consent of the governed, take an oath to uphold the constitution and put the
interest of the people above their own. If the general public should be
tracked to such precision, at the very least, why shouldn't interactions in
the public affairs of our elected and appointed and contracted officials, done
on our behalf, be subject to the same level of scrutiny?

~~~
pvnick
>Does anyone realistically think this program will be rolled back?

I for one plan on making a ton of noise until that happens.

~~~
disposition2
We've been making noise since 2001 before the Patriot Act was passed, then in
2007 when they granted retroactive immunity to the telecoms who where
assisting with the illegal wiretapping, and now again in 2013 when we received
some PPT slides that confirm what we thought in 2001.

I'm not trying to be a negative nancy, nor saying stop making noise, just that
it's been going on for 12+ years (if not longer) and the powers that could
stop it can hardly tie their shoes without an argument on how to tie them
correctly. Hopefully more people will wise up to the blatant disregard for the
law and demand further action.

~~~
gtaylor
Disclaimer: This is not directed at disposition in particular, it's more of a
general observation.

> I'm not trying to be a negative nancy, nor saying stop making noise, just
> that it's been going on for 12+ years (if not longer) and the powers that
> could stop it can hardly tie their shoes without an argument on how to tie
> them correctly.

The length of time that something has gone on does not change the fact that it
is fundamentally wrong. The only difference is that I am now, 12+ years later,
more disgruntled than I was back when it started. I feel like some people use
the fact that this has been ongoing as some way to say "Oh, this isn't as big
a deal as you're making it out to be." No, screw you.

Also, we as a population have to stop with the "it's never going to change,
why bother?" mentality and get involved. It's definitely never going to change
if we continue to be so apathetic as a group.

~~~
willurd
> No, screw you.

This is how I feel every time I hear someone make excuses for things like
this. It's less "screw you, I hate you" and more "screw you, wake the hell
up".

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ferdo
The NSA stated, in 1975, that it's not bound or beholden the US Constitution
or law. I don't expect that their opinion has changed much. I can't recall any
lawless institution that all of the sudden became lawful of its own accord:

> "NSA does not have a statutory charter; its operational responsibilities are
> set forth exclusively in executive directives first issued in the 1950s. One
> of the questions which the Senate asked the Committee to consider was the
> "need for specific legislative authority to govern the operations of...the
> National Security Agency."

> According to NSA's General Counsel, no existing statutes control, limit, or
> define the signals intelligence activities of NSA. Further, the General
> Counsel asserts that the Fourth Amendment does not apply to NSA's
> interception of Americans' international communications for foreign
> intelligence purposes."

>
> [http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...](http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3_10_NSA.pdf)

~~~
hga
Ignoring whatever laws have been passed since then, not to mention the control
of the purse the Congress has, your excerpts don't make your case. E.g. by
saying "the Fourth Amendment does not apply to NSA's interception of
Americans' international communications for foreign intelligence purposes" the
NSA was implicitly also stating that Americans' communications that didn't
meet those criteria were protected by the Fourth.

~~~
ferdo
> Ignoring whatever laws have been passed since then

I trust the NSA to do just that.

> the control of the purse the Congress has

They increased the NSA's budget by $4 billion last year.

You're more than welcome to trust an agency with little to no oversight. I'll
keep my faith in human nature. It's served me well all these years.

~~~
cpleppert
Well the NSA's activities have strong bipartisan support (at least as long as
as the public doesn't have a great idea about what it does). No member of the
intelligence committees has changed their position as a result of these recent
disclosures. Both republicans and democrats have rushed to defend the NSA.

The problem isn't a rogue agency that doesn't have oversight. The problem is
the law that allows the NSA to do just that. Take section 215 of the patriot
act for example(it allows the government to obtain business records aka the
verizon phone provision ); it is written in a way that makes it laughably easy
to use for almost any use at all. The FBI doesn't even have to go to the FISA
court but can choose any magistrate judge they want. The only restriction is
"that such investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment to the
Constitution." Wonderful......

~~~
ferdo
> Both republicans and democrats have rushed to defend the NSA.

In terms of realpolitik, that only makes sense. Politicians will defend anyone
that they think might have the dirt on them. Intelligence apparatuses in all
ages exist to control the political class.

Hoover's reign at the FBI is a history of political control via intel.

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jasonzemos
> private communications companies with which citizens do business under
> contractual "terms of service." These contracts do not authorize data-
> sharing with the government.

How come Aaron Swartz gets prosecuted for violating a TOS and the government
doesn't?

~~~
flyinRyan
Because the government has lots and lots of guns.

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ryguytilidie
OF COURSE its unconstitutional. However, I don't see the point of even
debating it. It's like when people got super excited that citizens were suing
the NSA to obtain this data as if there were anything other than a 100% chance
they would be denied.

There are a few possible outcomes to this debate:

-The NSA says, sure, its unconstitutional, but that wont stop us from doing it.

-The NSA continues to deny/lie about what they are doing with the program.

-The NSA appoints an oversight committee with no actual powers to make sure they "don't continue to do the same thing"

-No comment, forever.

Any of those options mean that the NSA keeps doing the same thing, tells us to
STFU and we realize we have no recourse. I hate to say it, but it seems like
this debate will have to end in violence or it won't end at all. :\

~~~
flyinRyan
There is one other possible alternative: those of us who feel strongly about
this issue need to get into politics. If enough of us get in (obviously we'd
have to adopt one of the big two parties, and start getting support at local
or state levels first) we could shut this stuff down from the inside.

Of course, we'd need some protection against people defecting for the money.
Maybe everyone has to make treasonous statements in front of a camera that we
all carry or something, so if someone sells out we can have them jailed or
executed for treason.

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throwawayga
The part about the CFPB is the next unknown hammer to drop. Consumers assume
the CFPB is on their side. The truth is far murkier. For instance, the CFPB
has requested and was granted detailed financial transaction information on at
least 10 million Americans. Of course, they are claiming that "personally
identifiable" is "extremely limited", but like the phone meta-data issue, it
is clear detailed spending habits could be associated with certain
individuals. At least they promise to destroy the data after holding it for 10
years... Source:
[http://blogs.marketwatch.com/capitolreport/2013/07/09/cfpb-c...](http://blogs.marketwatch.com/capitolreport/2013/07/09/cfpb-
criticized-during-data-collection-hearing/)

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hga
Some framing, usual comment section, etc. by him at the _Volokh Conspiracy_ :
[http://www.volokh.com/2013/07/11/unprecedented-my-wsj-op-
ed-...](http://www.volokh.com/2013/07/11/unprecedented-my-wsj-op-ed-on-the-
nsa-cfpb-blanket-data-seizures/)

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Tycho
Genuine question: how many decisions are made at the legal/policy level based
on something being 'unconstitutional?'

~~~
flyinRyan
None I would say. The legislative makes the laws and assumes the executive
won't enforce them if they're bad and/or the judicial will throw them out if
they're not constitutional. Of course, plenty of things that are obviously
unconstitutional don't come before the court for years if ever so they can't
be struck down.

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dragontamer
This article is trash, the discussions on this issue are trash, and everyone
is running around like a headless chicken.

A Law Professor, writing an argument about law, without discussing the
relevant cases? No discussion of Smith v Maryland? No discussion of FISA 702
or Patriot Act 215? Did he even bother to look up any relevant information
with regards to this controversy?

Call it unconstitutional if you want, but I want to see an _argument_. Call
yourself a law professor or a lawyer, but if you write under the guide of a
legal expert, I demand to see a high level discussion on the issue.

Instead, I get a rant about libertarian ideals, applying the 5th Amendment to
property you clearly do not own. I see vague descriptions of the 4th
Amendment, with no regard to context that is going on in the debate in
Washington.

Any "Law Professor" that writes about this subject... but FAILS to mention
Smith v. Maryland is horribly horribly ignorant on the subject. And does not
deserve to be writing under the guise of a legal expert. And he has failed to
do his due diligence as both a legal expert and reporter.

~~~
hga
Is _Smith v. Maryland_ really all that relevant?

Isn't there a big difference between collecting data from " _a_ " pen
register, and putting pen registers on every single phone in the nation? (And
claiming that's not "collection", collection is only invoked if and when they
decided to look at stored data?)

~~~
dragontamer
Smith v. Maryland is relevant because it is being discussed by the Senate
Intelligence Committee and debate in Washington. Its part of the discussion,
its part of the debate. Period.

The author of this piece has failed to communicate part of the discussion from
within Washington to the rest of his readership.

~~~
nitrogen
Let's bring Rihanna and Bieber into the discussion as well. Surely there's
some way we can make them relevant to the discussion of NSA spying, then we
can complain about law professors not including them in their articles either.

If "It[']s part of the discussion, it[']s part of the debate. Period." were a
general rule of debates, then it would be ridiculously easy to sideline a
debate by introducing random irrelevant facts to the discussion.

~~~
dragontamer
Precisely why I'm annoyed at the author.

Please tell me why Mr. Barnett's rant about 5th Amendment rights in Colonial
America is relevant to the conversation... but Smith v Maryland isn't.

Yeah, that's not a typo. Barnett begins to rant about the _Fifth_.

