

Why The NSA's Surveillance Program Is Illegal And Unconstitutional - acqq
http://www.techdirt.com/articles/20130628/01171923655/why-nsas-surveillance-program-is-unconstitutional.shtml

======
Arnor
> many in Congress insist that they never meant for the law to cover this
> level of surveillance

Too bad they never considered _reading the patriot act before signing it_...

Also, I think I'll need an XKCD graph to understand just when WP and NYT
stopped being Obama puppets...

~~~
joe_the_user
Yes but in considerations of legality, courts have often held that what is put
into law is the intention of the law makers and not simply a set of words.

Now whether the courts would accept that in this situation or not is an open
question. But one could still at least make the argument that the activity is
illegal.

~~~
AnthonyMouse
>Yes but in considerations of legality, courts have often held that what is
put into law is the intention of the law makers and not simply a set of words.

I would love to see that applied to the Patriot Act: It's well known that the
large majority of Congress didn't read it before passing it, so their intent
was clearly to pass generic anti-terrorism legislation rather than any of the
unknown-to-them specific text of USA PATRIOT. And, of course, without any
specific text you would expect the law to be found unconstitutionally vague.

That should also have the gleeful side effect of setting the precedent that
members of Congress have to read and understand legislation before passing it
or the law in question is unconstitutional.

~~~
joe_the_user
On the other, ironic, hand, then, the court might then somewhat rightful hold
that congress' intention was _" do whatever the heck you want and then lie and
mislead us about it"_. And low and behold...

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xiadz
Is there any constitutional court in the US that can revoke unconstitutional
laws? In my country (which has a totally different legal system, since court
sentences cannot be directly used in future cases) any sentenced person can
appeal to the constitutional court, and if the court finds that the sentence
was based on an unconstitutional law, the invalid law gets revoked, and the
sentenced person becomes a defendant again.

I'm just thinking whether Snowden's lawyers could use this kind of argument.
Of course this is not that simple, since he disclosed a national secret, and I
guess that national secrets regulations are perfectly constitutional.

~~~
joe_the_user
I'm sure a lawyer could say more.

My understanding is that US law does not have any specific constitutional
courts. Indeed, I think one could argue that US law is not necessarily "based
on the constitution" but based on English Common Law since even the
constitution is interpreted in light of this.

[https://en.wikipedia.org/wiki/Common_law](https://en.wikipedia.org/wiki/Common_law)
[https://en.wikipedia.org/wiki/Constitutional_law](https://en.wikipedia.org/wiki/Constitutional_law)

~~~
greyfade
The SCOTUS _is_ the Constitutional Court. The problem is, they only hear cases
where the Appellant can demonstrate standing. It's really hard to demonstrate
standing when the matter at hand is so deeply classified that no proof of
standing can be brought to bear.

~~~
coldcode
Laws which may be illegal being so secret they cannot be challenged is
incompatible with any form of democracy. They are quite compatible with other
forms of government like dictatorships. Maybe that will be the end result.

------
buenavista
This is absurd. It has been public knowledge for years that Facebook and
Google -- just to take two cases -- use user information to learn about them
in order to make money. Install Ghostery and see how many trackers one
encounters on nytimes.com or cnn.com. There is no expectation of privacy in
these activities at all.

Moreover, anyone who knows about how the internet works knows that packets
travel over public and private lines and are routed through public and private
computers. By design these machines read the headers of packets to know where
to direct them. Computation is done on the contents of packets to ensure
checksum validity.

One may strongly dislike the NSA's activities, but this is a specious
argument.

~~~
nitrogen
_There is no expectation of privacy in these activities at all._

Tell that to anyone who doesn't know what a "tracking cookie" is. A normal,
non-technical, rational person will have an expectation of privacy with regard
to their Internet browsing habits.

~~~
buenavista
And a normal, non-technical, rational 5-year-old has an expectation of Santa
Claus.

~~~
hobs
I know that anyone in the know wouldn't know, but how can you know what you
don't know when normally what you know is that you do have an expectation of
privacy when you are by yourself.

------
saraid216
Asking for a lawyer to comment:

Rejecting standing was how the SCOTUS disposed of Proposition 8; how does it
compare to find a way to have standing for this issue? Yeah, I know it's
something of an over-broad question, but I don't know enough to pare it down
better.

~~~
dllthomas
IANAL, but typically if you were the one harmed you would have standing. I'm
not sure if there's anything particular to this area that would change that.
In principle, violation of your privacy should be considered "harm." In
practice, you need a lawyer to comment.

~~~
mpyne
Also NAL, but the problem for these types of scenarios (and yes, I agree it's
a problem) is that you have to prove specific harm. It's not enough that some
jerk in the government might be able to violate your privacy with such-and-
such a program as then the Supreme Court would have to overturn essentially
the entire government.

You'd have to demonstrate you were _actually harmed_ by a program, which is
going to be difficult for someone on the outside of these programs to ever
prove.

~~~
Zigurd
Journalists could go for "chilling effect." The AP has already complained of
it in practical terms.

------
AsymetricCom
I wonder how many people reading this helped build the systems that integrate
with NSA

~~~
droithomme
Many Palantir employees, including high level ones, have made little secret of
their participation on Hacker News, mentioning their company in posts here.

You may recall they were involved in plotting to destroy journalist Glen
Greenwald and his family.

[http://www.salon.com/2011/02/15/palantir/](http://www.salon.com/2011/02/15/palantir/)

Plotting to destroy journalists who out government corruption and illegal
behavior. Can't think of anything more undemocratic, actually the correct
description is that an organization that plots to destroy journalists can not
be described as anything other than a terrorist organization which is at war
with the american people. But these terrorists at Palantir are proud of their
affiliation with this terrorist crime syndicate.

[http://wiki.echelon2.org/wiki/Palantir](http://wiki.echelon2.org/wiki/Palantir)

From posts on HN we see either that fascism and a hatred of freedom and
democracy are extremely common in the tech industry OR there are a lot of
organized sock puppet and persona accounts here. I personally think the latter
is more likely - look at the "top voted" comment from a 1 day old account.
Legit votes pushing it to the top? No way.

~~~
rozap
I know we often try to keep it civil around here, but shame on them.

Actually, let me rephrase, Fuck Palantir. There is a point at which I
disregard the technical hurdles that they overcome, due to the fact that
they're at odds with our constitution. They are far, far past that point.

~~~
droithomme
Yeah, the things they are up to are bad. There's another thread on HN right
now about Palantir's involvement with mobile license plate readers and the
extent to which these are photographing and tracking the movements of tens of
millions of people without warrant or cause and feeding the results into
intelligence fusion centers. The article below notes the case of a security
consultant who filed a request for his own info and found he had been
photographed 112 times by just one of these programs, including one photo that
was a photo of his daughters in the driveway of his own house, apparently
taken by cameras installed on randomly passing police cars which just scan in
everything they see and feed it to computers for analysis.

[http://www.cryptogon.com/?p=35851](http://www.cryptogon.com/?p=35851)

[http://cironline.org/reports/license-plate-readers-let-
polic...](http://cironline.org/reports/license-plate-readers-let-police-
collect-millions-records-drivers-4883)

Anonymous got a lucky break and found out about what was really going on at a
few of these firms. There are a lot more firms and it isn't going to be so
easy for grey hats to break in and release documents in the future. This
doesn't mean that these firms aren't still engaging in widespread programs
that make the Stasi look like a child's birthday game.

