
What We Don't Know About Spying on Citizens: Scarier Than What We Know - ca98am79
https://www.schneier.com/essay-429.html
======
rayiner
The article is old, but timely, since today is Constitution Day.

Here's what Justice Scalia had to say about the NSA issue last night:
[http://legaltimes.typepad.com/blt/2013/09/scalia-chides-
acti...](http://legaltimes.typepad.com/blt/2013/09/scalia-chides-activist-
colleagues-on-eve-of-constitution-day.html) ("It has gotten to the point,
Scalia said, that the current 'national debate' over the power of the National
Security Agency to track private citizens' phone calls will be decided 'not by
Congress, but by my court, because of the court's arrogation to itself ...
[the power] to determine what privacy rights ought to exist.' The court, he
said, is 'the branch that knows the least' about issues of national
security.").

There is an interesting and relevant blog post about how the NSA spying
creates an internal conflict within conservatism:
[http://www.firstthings.com/blogs/postmodernconservative/2013...](http://www.firstthings.com/blogs/postmodernconservative/2013/06/13/anti-
nsa-conservative-choose-antonin-scalias-originalism-or-rand-pauls-living-
constitutionalism). Basically, it's hard to reconcile originalism, which many
conservatives espouse, with the idea that the 4th amendment should be
reinterpreted to encompass digital privacy.

~~~
snowwrestler
It's to the point now that I almost feel like the only durable and consistent
solution would come from a Constitutional amendment that directly addresses
the concept of privacy. It would at least partially satisfy textualists,
originalists, and strict constructionists, while addressing the concerns of
modern data/privacy activists. It could also potentially address privacy
concerns across both government (e.g. NSA) and private (e.g. Facebook)
spheres.

There's obviously a huge hurdle to overcome to make that happen. How would it
be phrased? Very difficult to work out. And, what would cause sufficient
outcry for the public to push for it?

> As he often does when extolling the text of the Constitution, Scalia
> criticized his colleagues for their "activism" in creating new human rights
> not articulated by the framers.

Argh, comments like this make my blood boil. My reading of history is that the
Constitution was not intended to create _any_ human rights, but rather to
prevent the government from limiting the rights that we all have naturally.
Which would include privacy.

~~~
rayiner
When you find something difficult to phrase, it usually means that you're not
sure yet of the scope and details of what you're trying to say, or there isn't
broad consensus as to what should be said. All of which counsels against
carving those prototype ideas into the Constitution, either through an
amendment or a Supreme Court decision.

> My reading of history is that the Constitution was not intended to create
> any human rights, but rather to prevent the government from limiting the
> rights that we all have naturally. Which would include privacy.

Where the "rights" that the Constitution protects come from and what they are
is a complex question:
[http://en.wikipedia.org/wiki/Substantive_due_process](http://en.wikipedia.org/wiki/Substantive_due_process).
Most modern jurists have abandoned the idea of "natural rights" (which are
ironically, essentially supernatural). Most liberals tend to think of the
Constitution as protecting an evolving set of rights derived from broad social
consensus. Most conservatives tend to think of the Constitution as protecting
those rights the founders would have recognized at the time of the framing,
based on long-standing English tradition dating back to the magna carta.

Scalia had this to say about the "right to privacy" yesterday:
[http://legaltimes.typepad.com/blt/2013/09/scalia-chides-
acti...](http://legaltimes.typepad.com/blt/2013/09/scalia-chides-activist-
colleagues-on-eve-of-constitution-day.html) ("As he often does when extolling
the text of the Constitution, Scalia criticized his colleagues for their
'activism' in creating new human rights not articulated by the framers. He
made much of the fact that the right to privacy can nowhere be found in the
document, yet the Supreme Court has discovered and cultivated it over the
decades."). As Scalia noted in Jones, historically the 4th amendment was
rooted in a "property rights" view, not a "privacy" view. It's easy to see the
4th amendment's protection of "persons, houses, papers, and effects" as simply
expressing that the government may not commit trespass against real property
or chattels without a warrant. Of course, a lot of people also think Olmstead
(which approved phone wiretaps before it was overturned by Katz) was rightly
decided:
[http://en.wikipedia.org/wiki/Olmstead_v._United_States](http://en.wikipedia.org/wiki/Olmstead_v._United_States).

I personally think the entirety of the Supreme Court's privacy jurisprudence
is hand-waving, from Katz to Griswold to Roe to Lawrence. There's just no
privacy in the Constitution, nor is there anything in the historical record to
indicate that the framers had a well-developed concept of privacy as distinct
from property rights.

~~~
barrkel
When information had to be exchanged from enclave to walled enclave via
physical tokens, privacy rights were a subset of property rights.

There is a real question about interpretation of historical documents in the
light of today. Do you interpret them based on their effects at the time they
were written, or their literal meaning by modern definitions?

I don't like the question at all, because it presumes a sacredness that should
not be applied to mere documents written by people. But there are different
problems with making a constitution a more mutable document subject to
political fashions.

Could there be a trailing update mechanism, whereby e.g. amendments are
proposed, voted upon, then voted upon again 10 years later, and so on, and
only applied if 3 or 5 votes succeed?

That would be more legitimate than supreme court rulings, and remove the
sacredness that warps people's thinking.

~~~
rayiner
It's not a matter of sacredness, but rather "problems with making a
constitution a more mutable document subject to political fashions."

People argue endlessly about Constitutionality not because they view the
document as sacred, but because just about the only thing our society agrees
on is that the Constitution is one of the few legitimate restrictions on
majoritarian democracy. As a result, we fight about exactly what those
restrictions are.

------
leokun
> June 6, 2013

Given all the revelations since this was published it makes sense to add the
date. In terms of the NSA disclosures timeline, two months is a long time and
could be misleading if a reader isn't paying attention to the date.

------
cantrevealname
The HackerNews crowd notwithstanding, it is depressing to report that the
average person today is still utterly unaware of the Snowden revelations.

Please tell your barber, sister-in-law, coffee buddy, or next-door neighbor
about it. Tell them _why_ it's important.

EDIT: To the comments below that say that the average person knows but doesn't
care: I think you've been speaking with significantly better informed people
than the average. Really, my experience has been that the average person has
never heard the name Snowden, let alone knows about the revelations. (I might
even try an informal poll of people I meet up with, and report back.) That
they might not care once they hear the story is a sad, but separate issue.

~~~
rayiner
I have discussed the issue with my wife, my mom, and my dad. They all
understand the issue, understand the potential implications (especially my
parents, who as immigrants from a muslim country are a little anxious about
profiling), but none of them have a problem with what is happening.

I think the average person does know about the Snowden revelations. I think
the average person just doesn't care.

~~~
dylangs1030
I second this. I've discussed it in entirety with my parents, my girlfriend,
her parents, and her siblings. They get it as well. They also don't care.

In fact, they're pretty much shocked at all the surprise and nerdrage on the
internet right now. They responded almost universally the same way -- "We
assumed this is how it's always been. This is a new thing?"

------
wslh
I think what's scary beyond the privacy issues is that the government can be
involved in massive social engineering. If we add this to another top
submission today: "US military scientists solve the fundamental problem of
viral marketing" we have an excellent combo for manipulation 3.0.

------
rosser
Discussion on original submission from The Atlantic:
[https://news.ycombinator.com/item?id=5837253](https://news.ycombinator.com/item?id=5837253)

------
at-fates-hands
The real question is this:

If all of this collection stops another 9/11 style attack where thousands of
lives are saved, will it be worth it?

~~~
nullc
How many lives are lost by the increased range that people drive because the
TSA is obnoxious, or because of ever so slightly reduced preference for
telecommuting because of surveillance state concerns?

9/11 was horrible but it was also noise compared to boring sources of death
that we struggle with every day, and whos risks may be increased by our
overreactions to 9/11.

~~~
panarky
Yes, there are increased traffic deaths caused by heightened airport security.

Approximately 500 additional people die each year because of this.

    
    
      The inconvenience of extra passenger screening and added
      costs at airports after 9/11 cause many short-haul passengers
      to drive to their destination instead, and, since airline
      travel is far safer than car travel, this has led to an increase
      of 500 U.S. traffic fatalities per year. Using DHS-mandated
      value of statistical life at $6.5 million, this equates to a loss
      of $3.2 billion per year, or $32 billion over the period 2002 to 2011
    

[https://www.schneier.com/blog/archives/2013/09/excess_automo...](https://www.schneier.com/blog/archives/2013/09/excess_automobi.html)

~~~
dragonwriter
> Approximately 500 additional people die each year because of this.

IOW, the TSA has _created_ approximately two 9-11s since its inception.

------
bayesianhorse
One of my big questions is: Does the NSA engage in industrial espionage? And
if so, does it transmit data from foreign companies to US companies?

It has been rumored that this is standard operating procedure in China, where
each hotel employs some intelligence officers to invade business traveler's
devices...

------
vaadu
3+ months. Do we really need to rehash old news?

