
Watchdog Report Says N.S.A. Program Is Illegal and Should End - weu
http://www.nytimes.com/2014/01/23/us/politics/watchdog-report-says-nsa-program-is-illegal-and-should-end.html?partner=rss&emc=rss&smid=tw-nytimes
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sigil
_Brand also worried that declaring that counterterrorism officials “have been
operating this program unlawfully for years” could damage morale and make
agencies overly cautious in taking steps to protect the country._

It's great to have another voice speaking up against mass surveillance. Still
-- you're telling me these agencies are in all likelihood committing crimes
against the American people, but we need to be careful not to hurt their
feelings?

~~~
codex
They're not committing crimes against the American people. Not one American
has been found who has been demonstrably harmed by any NSA program. Without
harm, there no criminal act. That said, something can be unlawful without
being criminal.

~~~
gareim
The Palmer raids in the early 1900s arrested more than 10,000 people. Of that,
3,500 of them were held indefinitely. Almost all of them were innocent people.

In the wake of the 9/11 attacks, 1,200 Muslims were arrested. Some were beaten
(this is according to the Justice Department's own Inspector General of the
time). Hundreds were held for months. Absolutely none of them were found to be
with al-Qaeda.

These are just two examples of MANY. You know what's scary? The spying that
the NSA, FBI, and CIA do gets people put on lists. There are lists of people
to arrest in the event of an attack. Hoover of the FBI had something like
70,000 people on a list during the era of Communism fear. The vast majority of
those people were innocent of any crime.

Over the past century, these lists have been kept openly and kept secretly
when different administrations denounced them. But they have been kept (at the
FBI at least. Hoover hid them illegally). Letting the NSA spy on us and
treating us as if we were assumed criminals before innocent is a terrible way
to waste away your fundamental rights.

And the scary thing is we wouldn't even have known that we were being spied on
for sure unless Snowden said something.

These are crimes against the American people. You can't tell me that the FISA
court not rejecting any warrants is a good thing. Out of tens of thousands of
requests, not one gets rejected? That is a failure of the checks and balance
system our founding fathers set up. THAT is definitely a crime against the
American people.

~~~
angersock
And because of how fucked-up the system is, when they come to pick you up, any
number of minor things during that encounter ("Fuck you pig, where's the
warrant?", running, etc.) can escalate into resisting arrest, disturbing the
peace, or assaulting an officer, and then magically you're in the system "for
real" and screwed.

~~~
res0nat0r
Probably shouldn't be telling cops to fuck off then?

~~~
Karunamon
1st amendment says otherwise.

~~~
res0nat0r
You are free to talk shit to anyone you want in a bar; you are also free to
get your ass kicked.

Antagonizing a cop just to be a dick will probably result in those minor
charges he would have ignored if you were nice, getting written up with a
smile on his face. That's 100% your fault in that case.

~~~
Karunamon
The guy in the bar isn't bound by law and ethics to be professional and
respect the constitution. The cop is.

~~~
res0nat0r
Writing you a ticket that he is legally entitled to do because you are being a
dick is totally professional and in line with the constitution.

~~~
Karunamon
What ticket do you suppose I deserve for using the words "Fuck off cop"?

~~~
res0nat0r
Reread what I said above...If you are being a dick because you want to "stick
it to the man", well expect the man to stick it back to you and write you up
for those petty offenses he would have otherwise ignored.

~~~
Karunamon
Problem there is often times people have recieved BS citations for "disturbing
the peace" or other nonsense citations which plainly don't apply (i.e. because
contempt of cop isn't a crime), but still result in court time and hassle for
the accused.

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pstack
The whole "and should end" thing always makes me laugh. Oh, we just determined
that violating the constitutional limitations on government is against the
constitution, so we're going to stop violating the constitution, now.

None of these idiots thought they were doing anything _but_ violating the law
for the past several decades. They just didn't _care_. And they still don't.
And they won't. This big display right now is nothing but that - a display. At
most, they'll throw out some "oh, gosh, we will put in regulations or stop it
all together"... while they continue to do exactly as they please behind the
scenes.

There is no return from this. It is done.

~~~
IgorPartola
I disagree. American history is full of government actions that were later
found unconstitutional and were abandoned and condemned. Think about slavery,
women's voting rights, mistreatment of the Japanese during WWII, McCarthyism,
segregation and the civil rights movement, and now finally marriage equality.
These things unfortunately take longer than a few months to get shut down, but
they do stop.

~~~
pdkl95
> but they do stop

Well..

* The NSA imbroglio resembles McCarthyism in some ways.

* Segregation and civil rights are still significant issues in some parts of the country; the battle has simply moved away from "offical" fights into more indirect fighting using tactics like "school vouchers" and "redlining".

* Muslims and people of Arab descent are mistreated rather badly at times.

* Women's suffrage hasn't been in question for a while now, but there are certainly a lot of attacks against women in recent politics with significant attacks against abortion rights and women's healthcare in general.

* We don't call it slavery, but the prison–industrial complex has a LOT to answer for, and is a growing problem.

~~~
IgorPartola
I am not saying that things are peachy. I agree with all of your examples.
What I am saying is that less than a hundred years ago women could not vote
and the official stance on that was that it's constitutional. Less than fifty
years ago it was perfectly legal to pay women less than men just because they
are women. It is now illegal.

The point is that things like what the NSA is doing are clearly illegal in my
mind and I think 20 years from now our kids will look back and say "how did
you let this happen?" but it will be made illegal. Will the spy agencies and
over-reaching corporate entities continue trying to find a way to circumvent
the new laws and the interpretations of the old laws? Absolutely. However, we
will have made progress.

I guess this brings up the grand question: will we ever reach enlightenment
enough to stop spying and oppressing our own citizens, denizens, visitors, and
allies? I think it'll take a few centuries but yes. Eventually I think we will
get there through lots of lessons learned the hard way.

------
rhizome
I'd say it was cowardly and poor leadership for Obama to get this report and
still half-step his speech, if not anti-democratic. There's something he won't
tell us.

~~~
nwh
Somewhere there's a bunch of people thinking "at least that's all that's been
leaked".

~~~
meowface
That's kind of chilling to think about.

~~~
angersock
The system works!

------
zmanian
After 6 months of anti-mass surveillance activism,I'd like to share an insight
with the community.

The problem with the NSA is not just one or more illegal program but their
operating culture and philosophy. The NSA has gone into the business of
preemptively acquiring capabilities(subverted systems,large scale databases,
zero days, malware, etc) and then marketing those capabilities to other
institutions from law enforcement to foreign governments. The NSA leverages
the classification system, deception and parallel construction to evade
judicial and legislative review on how those capabilities are used.

This approach to covert actions means that there is no part of society that
the NSA will not attack to stockpile a capability for some unspecified future
use.

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grecy
It should be: Watchdog Report Says N.S.A. Program Is Illegal and those
involved must be imprisoned.

Anything less is unacceptable.

------
Zelphyr
I would submit that MANY of the laws our Federal government passes are
unconstitutional (10th Amendment). Yet they go and do it anyway and we go and
vote in another worthless fuck who got there by pandering to us and promising
more unconstitutional laws.

WE ARE TO BLAME! They may be the bullet that felled the murder victim but we
pulled the trigger.

~~~
rayiner
The text of the 10th amendment is this: "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people."

I submit that nothing can be unconstitutional for violation of the 10th
amendment that isn't unconstitutional for some other reason. There is no law
that can be justified as an exercise of one of the enumerated powers that
nonetheless fails for contravention of the 10th amendment, because any law
that can be justified on the basis of an enumerated power + the necessary and
proper clause is one that is "delegated to the United States by the
Constitution" and thus, literally, not within the scope of the 10th amendment.

Take the healthcare mandate. You can't argue that the 10th amendment makes the
healthcare mandate unconstitutional, because it was found to be a valid
exercise of the taxing power, which _is_ a power delegated to the United
States by the Constitution.

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hooande
The NSA has committed no crimes. As an organization, they've acted within the
bounds of the law and done exactly what they were supposed to do. This
watchdog report is saying that the law is not in the interest of the people
and it should be changed. But until that happens, the NSA is in the right to
continue with business as usual.

Our constitution prohibits ex post facto law. This means that someone can't be
charged with violating a law that was not in effect at the time of the
person's action. ie, if the the speed limit is lowered to 50mph on Tuesday,
you can't be ticketed for having driven 55mph on Monday. This should apply to
the NSA in the same way that it applies to citizens. We may not like the law,
but we can't call them criminals, dictators or all around bad guys for playing
by the rules as they were written at the time.

It's also important to note that the NSA currently has the support of the
people and the people's representatives. If 80% of the country hated the law
that allows blanket collection of business records then it would have been
changed long ago. The issue is 50/50 at best among the people and much more
lopsided in favor among members of congress. Changing the law will be
difficult at this point, as it's supposed to be. The whole point of a
democratic bureaucracy is that they are stable and slow to change. We can't
routinely re-write laws that are disliked by 40% or even 50% of the people and
lawmakers. In general, it's bad for business. It's difficult to plan for the
future when a relatively small group of citizens can throw out the rules in a
short time period.

If the NSA had some kind of effect on the life of the average citizen this law
would be rescinded immediately. If that doesn't end up happening, it's going
to take a lot more than personal interpretations of the constitution to get
the federal government to give up capability and assets it spent a lot of time
and money building. This law may change and the country may be better without
it. If anything it will be a long time until the majority of people make up
their minds or even form an opinion on this issue. Until then the NSA is going
to what all of us do: pursue their goals while acting within the boundaries of
the law.

~~~
mercurial
> The NSA has committed no crimes. As an organization, they've acted within
> the bounds of the law and done exactly what they were supposed to do. This
> watchdog report is saying that the law is not in the interest of the people
> and it should be changed. But until that happens, the NSA is in the right to
> continue with business as usual.

From the article, quoting the report:

 _The program “lacks a viable legal foundation under Section 215, implicates
constitutional concerns under the First and Fourth Amendments, raises serious
threats to privacy and civil liberties as a policy matter, and has shown only
limited value,” the report said. “As a result, the board recommends that the
government end the program.”_

Now, you could mention that two out of the five representatives disagree with
the idea that the program is illegal. That would be fair enough. Saying that
the report finds nothing wrong law-wise with the program isn't.

> This means that someone can't be charged with violating a law that was not
> in effect at the time of the person's action. ie, if the the speed limit is
> lowered to 50mph on Tuesday, you can't be ticketed for having driven 55mph
> on Monday.

No doubt. But if you were to be caught red-handed doing warrantless wiretaps,
on the other hand, retroactive immunity would automatically follow.

> In general, it's bad for business. It's difficult to plan for the future
> when a relatively small group of citizens can change how things work in a
> short time period.

I don't know what ordinary US citizens think about having their privacy
violated and have the head of the NSA lie about their activities. You may well
be right about them not caring, it's certainly the case here in Europe. But
saying that changing the law would "harm business" is grotesque. I'm pretty
sure you'll be hard-pressed to find any support for the activities of the NSA
in the US IT sector, short of security/defense suppliers, who bloody well know
which side of the bread is buttered. The rest is scared of losing non-US
customers and of the EU implementing stringent laws about transferring data
outside of the EU borders.

~~~
dragonwriter
> Now, you could mention that two out of the five representatives disagree
> with the idea that the program is illegal. That would be fair enough.

Not based on the article, which said they rejected the majority's conclusion
that the program was illegal _because they believed that legality should have
been left to the courts_ and not addressed by the board, which does not mean
that they disagreed with the board's assessment on legality. (I'd argue that
it _suggests_ , but does not mean, that they did not like the fact that the
board _reached_ the conclusion, but even then could not actually argue against
it.)

~~~
mercurial
It suggests strongly that Ms. Brand disagreed:

 _Ms. Brand wrote that while the legal question was “difficult,” the
government’s legal theory was “at least a reasonable reading, made in good
faith by numerous officials in two administrations of different parties.”_

But alright, you win this one.

------
jonnybgood
According to the article, three out of five members of the board held the
opinion the program was illegal. That's a little bit different than what the
title of the article suggests.

~~~
ItendToDisagree
The other two insisted that no one should look into the legality.

------
higherpurpose
I really want all of this to go through the Supreme Court before Congress
decides either way on it, because I worry they will pass some laws that make
this only slightly less awful, but at the same time make all current lawsuits
irrelevant.

If there's one lawsuit say regarding the Patriot Act, and the Patriot Act get
repealed and then replaced with something else in the meantime, does the
lawsuit still continue, for example?

But even if it does, and let's say it says it's completely unconstitutional
and whatnot, that still wouldn't apple to the "new law" that is slightly less
awful, would it? It would require a new lawsuit against those specific
provisions, right?

So this is what I'm worried about, and why I'd prefer all this goes through
the Supreme Court _before_ Congress starts passing new surveillance laws,
because then they'd have a much lower chance of passing something that's
already been declared unconstitutional in a new law.

------
IgorPartola
I guess I don't see how what the NSA is doing would not be unconstitutional
and illegal. I don't care about the mechanics of how it's actually done but
wiretapping requires probably cause and a warrant. Fishing expeditions are not
legal. The fact that it's not listened to directly by a human but instead
stored for later processing has nothing to do with the fact that it's
wiretapping. Creating a secret court that is a rubber stamp of approval for
broad warrants does not make it legal.

I actually wonder what would happen if the government was to prosecute someone
where the only evidence they had was obtained via this illegal wiretap. Would
the evidence gathered this way actually hold up. I know the point of this is
not the due process but to detect terrorist plots, but the legal hypothetical
is interesting.

~~~
dllthomas
When they have evidence collected from these sources, they basically pretend
it's from other sources. See "parallel construction."

------
kordless
I'm OK if they want to look at my data. I just want to know who and when they
look at it and how much they are going to pay me for it. 1,000 Bitcoin gets
you everything I have data-wise.

~~~
euank
I think this deal is poorly thought out since, coincidentally, all of your
bitcoin wallets are in fact data. I'll happily pay whatever sum of BTC into a
wallet in exchange for that wallet + some more data. Nothing but gain.

~~~
kordless
Well, there's that.

------
zmanian
Full text of the report [http://www.scribd.com/doc/201740642/Final-
Report-1-23-14](http://www.scribd.com/doc/201740642/Final-Report-1-23-14)

------
jmharvey
The NSA didn't break the law. _People_ at the NSA broke the law. They need to
be held to account.

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midas007
I'd like a return to sanity, civility and proportionate responses.

------
martindale
Who do we send to jail?

