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Obama’s Remarks on NSA Controversy (wsj.com)
140 points by dshankar 679 days ago | 166 comments



> And the reason that’s not how it works is because we’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

Oh thank god, all branches are providing oversight. So it's just as harmless as all those other programs being overseen by all branches of government.

Like TSA.

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"Separation of powers" is such a bogus concept. We've got three groups of people in different office buildings with almost exactly the same set of incentives, and it's hammered into our heads that this somehow will cause government to police itself. I doubt anyone who didn't repeatedly hear the praises for separation of powers in school throughout their childhood would think that is even a remotely effective plan.

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Separation of powers was designed to prevent a few bad actors from seizing control of the whole system, as frequently happened in ancient republics. It's actually worked well for that purpose. It wasn't intended to defend against incentives affecting everyone who gets into any kind of office. No one foresaw that weakness.

People keep talking about separation of powers because it was once a good solution to a problem that no longer exists.

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And the superior alternative is what?

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Society refusing to tolerate any group of people having a legal monopoly on the use of violence.

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This please.

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The phrase "Democracy is terrible, but it is the best we've got" makes some sense.

But "American Democracy is terrible, but it is the best we've got"? That's a new one to me.

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Transparency and the possibility for the people to review at least high level policy.

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Separation of powers is a good concept. The problem right now is that all three branches of government have been taken over by the right wing; there is little disagreement about these things. Separation of powers tends to work best when there is more than one opinion.

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I'm going to be EXTREMELY CHARITABLE and suggest that your opinion of the branches "being taken over" by the right wing is a statement which only really extends to the scope of their surveillance and antiterror operations, and that you are merely not thinking of certain things that do not affect you as a member of the left wing, like:

* IRS targeting of section-504 nonprofits

* the National Labor Relations Board's apparent failure to comply with rulings suggesting that their recess appointments were irregular and that they do not legally have a quorum

* the Department of Health and Human Services and its campaign to make Catholic institutions pay for birth control and abortions

* irregularities in the bankruptcy process around the auto bailouts

* et cetera.

Given that limitation, I believe it is possible for your argument to be regarded as meaningful. :)

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Are you suggesting that the executive branch has been taken over by the right wing?

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Does that suggestion surprise you? You are talking about an executive branch that is putting tanks, helicopters, and other surplus military equipment in the hands of local law enforcement. For decades, the executive branch has encouraged the use of plea bargains to avoid having cases go to trial. The soldiers who enforce our laws have been deployed against researchers who published the wrong books. Spies have been sent into peaceful anti-war groups. How would you describe the government that undertakes such actions, and then tries to amass even more power?

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Classifying such things as right wing is part of the problem. "Left wing" governments are just as capable of all sorts of statist, authoritarian activity. But saying it is right wing annoys right wing people who are liberal, saying it is left wing annoys left wing folk.

Politics is more than a left right axis.

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The soldiers who enforce our laws have been deployed against researchers who published the wrong books.

What?

Spies have been sent into peaceful anti-war groups.

That's been going on ever since the time of Martin Luther King Jr, and maybe before then.

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What?

Probably in reference to the labs of an author of a well-known pair of oddly titled chemistry books being raided.

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Even with these recent scandals, I find it somewhat difficult to categorize Obama's policies as right wing, but I was just seeking clarification.

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I love how he says several times "we aren't listening to your phone calls". As if that suddenly makes everything better. Fuck me.

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They aren't listening. They are just recording them in case they want to listen later. Ohh, and they are listening... sometimes, like when there's a court order. Heck, I spoke with someone personally who used to work in one of their call screening centers. They sat in front of a computer all day and flagged snippets of calls, emails, and text that met certain requirements(e.g. words that would indicate a planned terrorist activity). It wasn't clear whether this was applied only to foreign or foreign and domestic conversations. Though most conversations were in english with a native accent.

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It gets worse. Moments later, he says:

"if anybody in government wanted to go further than just that top-line data and wanted to, for example, listen to Jackie Calmes’s phone call, they’d have to go back to a federal judge and — and — and indicate why, in fact, they were doing further — further probing."

Great. So they can't listen to your phone call, unless they indicate why they want to listen to your phone call. I'm sure everyone involved in this program was cherry-picked to ensure that no one says "no" to any of these requests. Oh, and I'm sure all the logs (who asked who for permission, what the reasons were, which requests were granted or denied, etc.) are also conveniently "classified," which you should remember is different than "secret."

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So now you're objecting to the very concept of a warrant?

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I'm saying that the concept doesn't make sense when they're being issued by people who have very similar incentives to the people executing the warrant. The Fourth Amendment to the United States Constitution essentially says "the government cannot perform a search unless the government drafts a piece of paper saying that they can do a search."

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Did FISC warrants suddenly start requiring probable cause? Did the court itself suddenly start scrutinizing requests (how would we even know)?

Don't conflate FISC warrants issued for criminal investigations. FISC is barely even a speedbump when it comes to this sort of surveillance.

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The quote isn't talking about FISC warrants. Its talking about regular Article III warrants.

What's deeply ironic about the outrage here is that FISC was created as an extra layer to safeguard privacy. FISC warrants give law enforcement officials permission to initiate an investigation, not to access information that would otherwise require an Article III warrant.

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Or as if that makes it true.

Wasn't there reports that warrantless wiretapping is widespread?

They may not be listening to everybody's "phone calls", but how about activists, dissidents, whistleblowers, etc phone calls? How about people active in grassroots campaigns, from OWS to ecology, etc? How about people that work at EFF? What about journalists that are preparing a government corruption story, etc?

Heck, they had files one mile long for people like ...John Lennon and MLK, back in the sixties/seventies.

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But he is right, somebody isn't listening to it as you say it. Its just being saved in a HUGE database so when they decided you did something wrong that can be used against you.

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It's also a straw man argument. Nobody ever claimed voice recordings were collected, all news sources were very clear about that. He's just distracting from the actual complaint, which is that all of the other data is collected.

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The limiting factor here really is the lack of computational power to listen to everyone's phone calls. As soon as technology gets there, you can bet it'll be on the table.

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Every call passes through numerous computers between the speaking parties. Why do you think the largest best-funded organizations in the world would lack the computational power to "listen"?

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Usually telecom equipment is near the lower bound of the computer power needed to carry calls; there is not much room for advanced signal processing, speech-to-text, etc.

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They are not getting through a single centralized location, and transcoding voice traffic does not require as much performance as voice recognition (the difference is several orders of magnitude). Your average telecom branch exchange station is not anywhere in the ballpark.

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According to the report they don't listen the voice of the calls, only the "metadata" such as the numbers the calls are made from and to, and when.

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Two different issues:

The Verizon FISC order addresses only metadata. The PRISM presentation indicates that among the data captured from the providers involved in PRISM is VOIP data, which, would seem to be call contents.

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The best explanation I've seen for that is that they are just collecting the content in case it is needed later. If, for example, they see you making a lot of long-distance phone calls to numbers known to be ties to Al Qaeda, then they could 'get a warrant' to actually look at the PRISM data they've collected.

In real life terms, it's like posting an NSA agent in every house in America, who promises to keep his eyes closed. Of course, he can hear everything you're saying, but he promises not to tell anyone unless you say something elsewhere that would give them cause to.

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As if that suddenly makes everything better

Well, it does seem like most folks are primarily concerned that they will be listening to your phone calls. So maybe it doesn't make you feel better, but maybe it wasn't targeted at you.

(I know, as if that makes anything better!)

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Or he's just going to plead ignorance and maintain plausible deniability.

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Surveys of the American people show that at least two of his three preconditions are correct. I think we're going to have some problems here.

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Funny how that works. Apparently we can't trust the executive branch, Congress, or federal judges to make sure they're abiding by the Constitution, and we do have some problems here.

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Not to mention he is being very disingenuous because that "oversight" is extremely limited.

Congress passes these laws in a hurry, trying to limit public debate as much as possible. Judges get pressed into signing whatever NSA/FBI wants them to sign (there was no denied FISA "general warrant" denied in 2011 and 2012, and probably none before either), and of course the president can't be trusted with this. He's in charge of it all.

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Excuse me if I have this muddled, but being a Top Secret program, wouldn't those Congressmen be bound to silence on the matter anyway?

Assuming you found one who bucked the trend and wasn't bankrupt of responsibility already, what could he actually do?

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What exactly is harmful about the TSA? Annoying and stupid, sure, but as far as I can tell nothing more sinister than that.

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You don't think that an agency that exists to condition the American people into the belief that a police state is "normal" is harmful?

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They've stolen $300 worth of stuff from my checked baggage and don't provide any means to get it back. There are dozens of similar stories. Not quite sinister, but beyond annoying and stupid.

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How about systematically irradiating 99% of the people that walk through their lines, without any independent study of the risks of such radiation? What happens when a terahertz antenna of unknown power is waved 2 feet in front of a male's genitals? 5 years of x-raying individuals, then taking all machines out of service shortly after the EU bans the machines? We will never know how many cancer cases arise from that program.

Not to mention the cost of running an agency that has not even once caught a terrorist.

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I mean, aside from being a corrupt organization that wastes tax dollars and has done almost nothing to keep us safe, I suppose they are fine.

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"Now, let — let me take the two issues separately. When it comes to telephone calls, nobody is listening to your telephone calls. That’s not what this program’s about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks — if the intelligence community then actually wants to listen to a phone call, they’ve got to go back to a federal judge, just like they would in a criminal investigation. So I want to be very clear. Some of the hype that we’ve been hearing over the last day or so — nobody’s listening to the content of people’s phone calls."

So, this is about CDRs- Call Detail Records. They are the atomic unit of all mobile telecommunications. There's no billing, no provisioning of data or anything without them. These are the most fundamental log files of all your mobile activity. They are in a sense, the primary key needed to enumerate all of your transactions.

https://en.wikipedia.org/wiki/Call_detail_record

An excruciating level of detail on what a CDR can include can be found here:

http://downloads.avaya.com/css/P8/documents/100096784

Our president is using weasel words. Yes, obtaining CDRs isn't the same as obtaining your texts or your voicemail, but once you have them, you have everything you need for obtaining the content through subpoena. So, from here, we jump to this:

http://www.youtube.com/watch?v=iog5IeEjR00

"We certainly have ways in national security investigations to find out exactly what was said in that conversation. Its not necessarily something that the FBI's going to want to present in court, but it may help lead the investigation or the questioning of her."

Our political leaders are not worth defending any more. The whole system is corrupt. Everyone in office needs to be ejected, followed by the comprehensive removal of non-political government leadership. This country has beached itself.

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> Yes, obtaining CDRs isn't the same as obtaining your texts or your voicemail, but once you have them, you have everything you need for obtaining the content through subpoena.

Hint: it's always been possible to get nearly any piece of information with a subpoena or a warrant. The 4th amendment protects against unreasonable searches not searches period. And a subpoena or a warrant is by definition a reasonable search.

There is nothing weasel-y about this language.

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I believe a big issue he is raising is the ability to go back in time and wiretap your phone before the subpoena has been issued.

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Collecting CDR's is not wiretapping.

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Watch the youtube video referenced above. There is some kind of wiretapping going on all the time.

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"nobody's listening to your calls" != "nobody's recording your calls".

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If you eject every person from the government at once then the only ones left behind will be the lobbyists to influence their replacements, and without any tenure or political clout for those new people to resist.

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I'm trying to understand one thing: what is the difference between a telephone number and a name?

This is Penn register information, that is what it's referred to as in public laws.

In aggregate it can be used to draw connections between people, such as people talking to those who are committed to doing us harm. That is what public comments on these programs have said and that is true.

But clearly telephone numbers are identifying information, unless they are hashing them prior to building their graphs, but if that is the case why not say that?

His speech also conflates "federal courts", with "FISA court", which implies review by the independent judicial branch.

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He also glosses over the fact that cell tower location is included in this data. Most of the information that they would overhear in the actual call audio can be deduced from the data they're collecting. Which is kind of the whole point of the program.

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So if I call you from outside 123 Main Street, Anytown on Tuesday at 6:37pm, what are we talking about? Even if one of us is known criminal or terrorist, the fact that conversation took place is merely suspicious rather than probative.

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If a Tea Party leader gets a call from a Koch lobbyist, that information could easily be used to discredit them. Lots of the past abuses of government power would have been just as effective with merely the data the government is collecting about us.

https://en.wikipedia.org/wiki/COINTELPRO

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As innuendo goes, that example is pretty weak sauce.

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keep drinking the kool-aid. seriously, every response up to this has been you defending the ongoing actions of the government. are you a government employee?

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Far from it; in fact, as a non-citizen I have far fewer rights than you do, assuming you're a US citizen. Now try addressing my argument instead of attacking me personally, and try to distinguish between defending the actions of the government and pointing out factual context, such as the fact that it is not in fact illegal or unconstitional for the government to collect records of phone calls, even though it perhaps should be.

As it happens, I'm from Europe, and one thing I do miss about the EU is that citizens of that territory enjoy a explicit and robust constitutional right to privacy that does not exist in the US, not to mention a unilateral right of access to and control over their personal data in both governmental and commercial spheres. I have called on many occasions for an amendment to the US Constitution that would confer such rights on Americans instead of relying on the vague and implicit 'discovery' of a privacy right that did not exist before 1965 and which could be taken away as easily as it was given.

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He's just not jumping to conclusions right away. He asks a valid question and your answer didn't contribute in any way.

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Why is it that politicians think that "not listening to your phone calls" is any different than tracking everything about your phone calls.

It reminds me of little kids fighting, getting in each others face and shouting "I'm not touching you, I'm not touching you!"

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Why is it that politicians think that "not listening to your phone calls" is any different than tracking everything about your phone calls

Because there's a huge material difference, maybe?

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If I stretch my imagination I can see the argument, but I don't buy it (IMHO).

I think the spirit of why the privacy of the content of my conversation is important equally applies to any information about that conversation. If my conversation is privileged, why shouldn't my meta-data be? What's the difference?

If AT&T provided a service that cataloged and tagged my conversation for retrieval based on analysis of the content (and I opted into this) would that meta-data also be available to the government?

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If you're having trouble stretching your imagination, just go back to your teenage years.

Mom: Who was that on the phone?

You: My (girl|boy)friend.

Mom: What exactly did you talk about?

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First, I hear your point.

But, I think there is a "huge material difference" between a parents right to know who their kids are talking to and a governments right to know who I am talking to.

To put it another way: is this a form of blocking the assembly of people? If I meet in private with a group of people does the government have a right to know all of the meta data about the conversation such as who was present, when they arrived and left, etc? In this hypothetical, I'm assuming we are convening on private property and not a public sidewalk. If we met in private does the government have the right to compel the doorman to reveal these details indiscriminately?

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And to that I totally agree, I do not think that governments should automatically have the right to all call metadata and that the status quo is a gross overreach. I was just pointing out that there is a real (legal, common sense, whatever) distinction between knowing that a call was made and listening in to a call.

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"If we met in private does the government have the right to compel the doorman to reveal these details indiscriminately?"

Of course they do.

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The key to the question was "indiscriminately." Does the government have the right to require to doorman to keep tabs on everyone without probable cause.

[edit typo]

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That's an exceptionally salient point if you think about how our nation was formed, and how much of what later proved to be the framework of our nation was the work of a bunch of guys secretly meeting in Philadelphia.

If the British had known the names, arrival times, etc. of those meetings, even without knowing the content, it is very likely that our nation would never have been born.

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> But, I think there is a "huge material difference" between a parents right to know who their kids are talking to and a governments right to know who I am talking to.

No, there isn't. Children are not a parent's private property.

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Or even better:

Mom: I see here from looking at the phone bill that you were talking for your (girl|boy)friend.

You: ...

Mom: What exactly did you talk about?

You: I'm not telling!

The metadata isn't your information, it's the phone company's. The conversation is yours.

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But, why is the conversation technically yours? What is materially different about the metadata (originated by the callers) and the voice data from the point of view of the phone company? It is all data flowing over their network, which is created by the private parties who use their service.

I honestly don't get this exception that's made for metadata where the phone company is concerned.

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> But, why is the conversation technically yours?

Because the metadata is information that the phone company has to know in order to provide you the service and to bill you for it, and therefore cannot be information in which the parties to the conversation have an expectation of privacy.

The content of the conversation, OTOH, is not information that the company needs to have to provide and bill for the service, and therefore can still be information in which the participants have a legal expectation of privacy.

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Because the metadata is information that the phone company has to know in order to provide you the service and to bill you for it, and therefore cannot be information in which the parties to the conversation have an expectation of privacy.

This doesn't follow. If you are suing/being sued, your lawyer needs to know everything about your case to mount a proper offense/defense, but you still have an expectation of privacy. Similarly, your doctor needs to know everything about your medical history in order to treat you, yet you have an expectation of privacy there as well.

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> This doesn't follow.

You are mistakenly inferring the wrong general principles from special cases that are well-known because they are exceptions to, rather than illustrations of, the generally-applicable rules.

> If you are suing/being sued, your lawyer needs to know everything about your case to mount a proper offense/defense, but you still have an expectation of privacy.

That expectation of privacy is created by the (well established at the time of the Constitution) common law lawyer/client privilege, it is not a generally applicable privilege that applies to commercial relationships and creates an expectation of privacy within those relationships. So, yes, there is an expectation of privacy here which has significance under the fourth amendment, but it is not one which extends to other business relationships like those between a telephone customer and their carrier.

> Similarly, your doctor needs to know everything about your medical history in order to treat you, yet you have an expectation of privacy there as well.

Again, doctor/patient privilege is a special case (which is why we talk about "doctor/patient confidentiality" and "lawyer/client confidentiality" and not a general privilege attached to commercial exchanges.)

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You are mistakenly inferring the wrong general principles from special cases that are well-known because they are exceptions to, rather than illustrations of, the generally-applicable rules.

The existence of these special cases demonstrates that a loss of the expectation privacy does not inherently occur when one entrusts another entity with some detail of their lives.

That expectation of privacy is created by the (well established at the time of the Constitution) common law lawyer/client privilege, it is not a generally applicable privilege that applies to commercial relationships and creates an expectation of privacy within those relationships. So, yes, there is an expectation of privacy here which has significance under the fourth amendment, but it is not one which extends to other business relationships like those between a telephone customer and their carrier.

The extent to which commercial relationships pervade our lives is, in my opinion, just cause to expand the boundaries of a reasonable expectation of privacy. The lack of transparency in how companies handle customer data, what data is retained, etc., especially for non-technical users, is further reason to codify clear rights to privacy instead of relying upon impenetrable common law precedent.

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And it is such a tenuous argument. So, if I have some unlimited flat-fee plan, wherein the number of calls, who I am calling, etc. (i.e. the metadata) doesn't matter, then this information wouldn't be necessary for billing. In that case do I suddenly have an expectation of privacy?

I would really like for someone to provide a good answer to this question.

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> And it is such a tenuous argument. So, if I have some unlimited flat-fee plan, wherein the number of calls, who I am calling, etc. (i.e. the metadata) doesn't matter

It is provided to the phone company for the purpose of them acting on it to provide service, and with the knowledge that they will routinely track it, whether or not it is related to billing.

> I would really like for someone to provide a good answer to this question.

That is the actual basis of the legal distinction, whether or not you think it is a "good answer". See Smith v. Maryland, 442 U.S. 735 (1979).

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There is a "huge material difference" between touching your sibling and merely hovering your finger a millimeter over them.

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Who I am calling is the vast majority of what I want to be private, what I say to them is often obvious given who I am speaking to.

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For a lot of calls, sure. You can guess that calls between me and my mechanic are probably about my car.

Calls between me and my wife when I'm out of town? You could guess what we're talking about, but I don't want you to listen in.

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Yet the fact that you do or do not call your wife when you're out of town speaks volumes about the strength and nature of your relationship, information which could be used against you if in the wrong hands.

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Because it is, in fact, significantly different; and the differences were articulated several decades ago by the Supreme Court. The two cases you should examine are Katz v. United States and Smith v. Maryland.

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The modern version of that is "it's just the metadata."

I don't think legislation is the solution to this though. The spying is done because it //can// be done. By using a web application administered by somebody else you have implicitly given them your access logs.

The right solution is more along the lines of bringing the power home[1], or friendly neighborhood colocation locations. If the Internet has 1M servers, they can monitor transmission at the large ones. If the Internet had 1B servers on it, they wouldn't be able to handle.

[1] Talk by Eben Moglen about the Feedombox: http://youtu.be/gORNmfpD0ak?t=1m23s

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They are still in a dumb phone world, where people use their phones to call other people.

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Because the metadata about your phone calls is AT&T's information about you not your information?

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Standard government nonsense -- "There is oversight, this is for your safety, trust us, we respect your privacy, whoa look at the time I have to meet someone important bye!"

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Let's talk a little about trusting the government to abide by the Constitution. The Constitution establishes the treaties we enter into as the law of the land. The Geneva Conventions are treaties that make torture illegal. The government has tortured people pretty recently.

We're pretty far beyond "trust, but verify" territory here.

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I question your minor premise, just for starters. I also think you're committing a fallacy of composition, since the government is not a monolithic entity.

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Oh, this retort again. "HN/Reddit/the Government isn't just one person with one opinion you know!" And then someone replies yadda yadda scotsman yadda yadda and then we all kill ourselves.

Make an argument!

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Here is an interesting quote from his remarks that I think could actually be a worthwhile argument that gives some indication that there is serious concern to ensure that the systems are not abused.

> And by the way, with respect to my concerns about privacy issues, I will leave this office at some point, sometime in the last — next 3 1/2 years, and after that, I will be a private citizen. And I suspect that, you know, on — on a list of people who might be targeted, you know, so that somebody could read their emails or — or listen to their phone calls, I’d probably be pretty high on that list. So it’s not as if I don’t have a personal interest in making sure my privacy is protected.

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The thing is, you don't know about the abuse until its too late. Plus he's retired at the time, he'll do some 'consulting' and maybe speak for a lot of money but he'll have his security detail and he's done.

Kind of the ultimate abuse would be some future presidential candidate's records being gone through and perhaps in his youth he had some questionable friends or something. Our politics and politicians are not nearly civil enough to have these kinds of tools and information available. It's basically just a hope and a wish that the NSA folks with access take their jobs seriously and take the nation's security seriously and that they are otherwise trustworthy about it. Not long after 9/11, anthrax, anthrax that originated in a top secret US defense lab was sent to politicians in DC... In Fort Hood Texas, a member of the US military, a guy they vetted and indoctrinated, went through their background checks and they accepted shot up a bunch of people.. These were trusted people with trusted access.

The knives are already out, should we shut this stuff down, as soon as there is another terrorist anything the other side will use it for political gain. How do you undo it?

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I would interpret that as Obama casting himself in the position of an average citizen to garner a feeling of connection and trust.

I'm taking a wild guess, but I doubt that presidents get bumped down to "average dude" status by intelligence agencies after they leave office.

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I doubt that presidents get bumped down to "average dude" status by intelligence agencies after they leave office.

Isn't that exactly his point? After he leaves office, he will be very high on "List of people to snoop"?

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Former President Obama would also have far more power than John Q. Citizen to make his metadata "disappear" if need be. I don't particularly buy this argument.

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He will be escorted by the Secret Service, so he's not going to have a lot of privacy from the federal government either way.

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How would you identify and disrupt terrorist cells in America that were talking with known terrorists overseas?

I'm not trying to defend the government, but genuinely ask, 'How would you do it?'

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There comes a point where you just admit that you can't. Bad people do bad things and sometimes you can't stop them.

Burning the whole village to save it, cure worse than the disease, cutting noses to spite faces, and all that.

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But sometimes you can, and the government is constitutionally mandated to defend the US and its people. You can't just cherry-pick the bits you like out of the Constitution while ignoring large chunks of it that you're not as comfortable with; for good or ill, it does invest the government with quite wide-ranging powers. congress is empowered to license mercenaries and assassins, for example, though its power to issue letters of marque and reprisal.

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How exactly is capturing CDR's "burning the village"?

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Violating your core principles to fix a problem is pretty much the definition of "cure being worse than the disease".

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What "core principle" extends to the government not collecting information you happily share with big corporations?

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The Fourth Amendment, prohibiting unreasonable search and seizure by the government. Search and seize with probable cause, sure, go nuts. But "seize it all and let big data sort it out" is a pretty fundamental abdication of the oath our officials took to uphold the Constitution, no matter what the excuse for it is.

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The 4th amendment is not a prohibition on collection of information about someone. It's a prohibition of violating the sanctity of your home and person to collect that information: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

The beauty of the modern world is that the government does not have to violate the sanctity of your home or person to get tons of information about you. You freely give it away: to Google, AT&T, Facebook, etc. Nothing about the 4th amendment prohibits them from going and asking these entities for information they have about you or that you have shared with them.

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I get the legal argument. I'm saying that from a "spirit of the law" perspective, the intent of the 4th is to protect citizens from having their government search through their personal effects without probable cause.

This is much like if the NSA had an agent whose job it was to go through bank strongboxes - all of them - examining the contents and looking for things that are illegal. It is the bank's security that is violated, not your own, but it's still your "papers and effects" that are not secure against unreasonable searches.

I completely understand the judicial argument that has been made amounting to "Welp, it's on Google's servers, you don't have any right to control it anymore", but as far as the spirit of the Constitution goes, that's complete bunk, and I think that any reasonable, average person would agree with that sentiment. My data, stored on Google's servers, is mine, and is entrusted to them for safekeeping.

The government has managed to finagle its way into an interpretation of the Fourth that utterly defangs it. The purpose is "Hey, you can't go through peoples' stuff without judicial oversight", and that is clearly being violated as a matter of routine.

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I think you're mistaken about the "spirit" of the 4th amendment. First, the spirit of the Constitution must be read consistently with that of English common law, which means that pretty much any information is accessible with a warrant or subpoena pursuant to court order. To the extent that the NSA is collecting information pursuant to court orders (e.g. CDR's) that's a very relevant point. The "spirit" of the law is that courts can authorize getting at pretty much any information.

Second, you're wrong about the "spirit" of the 4th amendment being about the government not searching through your stuff. It's about not violating the sanctity of your home or person to do so. That's a very key distinction. Even in 1802, the government could, pursuant to a court order or even just consent, search through "your stuff" that you had left for safekeeping at a friend's house.

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I have no issue with information being accessible under the right legal framework. Court orders, warrants, sure, go nuts. But the whole idea behind that framework is "you have to actually have a valid reason for getting this data", as opposed to "you can look at whatever you want and make up your mind about why you want it after the fact".

I think where this is sticking for me is the whole "consent" issue. I have a very difficult time believing that all the accused companies have voluntarily consented - without coercion - to NSA taps. If that's the case, then welp, all bets are off. I don't think that's the case, though - if it has happened, it is almost certainly under some sort of coercion, at which point it's very difficult to argue that this data is being given with free consent, and we're back to it effectively being seized via "consent" given under duress (which any court would strike down as not being consent at all!)

Regarding the language itself, the 4th says you have the right to be secure in your papers (personal data!) and effects (personal property) against search and seizure, not just the sanctity of your home and person. I would like to know how that is reconciled with modern legal interpretations - that seems like a big gaping hole to be filled.

Maybe I'm just naive and want to believe that things are better than they are. Maybe Google et al have just rolled over and happily handed over data. I really have a hard time believing that's the case. In either case, though, we have allegations of our government conducting wide-scale spying on its own citizens, by means of the seizure of those citizens' supposedly-private communications. Given a country that is supposed to uphold the values of liberty and individual freedom, that is extraordinarily distressing.

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> I think where this is sticking for me is the whole "consent" issue. I have a very difficult time believing that all the accused companies have voluntarily consented - without coercion - to NSA taps.

Duress is not coextensive with coercion. Consent can be valid even if it involves leverage (e.g. no government contracts for you unless you consent).

> Regarding the language itself, the 4th says you have the right to be secure in your papers (personal data!) and effects (personal property) against search and seizure, not just the sanctity of your home and person.

4th amendment interpretation does make the logical analog between "papers" and "files" or "data." But information that you've given over to others (e.g. files stored in your Drop Box) or information that was not even generated by you (e.g. server logs, call data records) is not your "personal data" whether it's ink on papyrus or bits.

What's tripping you up is the illusion of "network transparency." You might think of your gdrive as the same as your hard drive, but of course it's not. The difference between the two is nothing less than keeping information about your finances in your desk (where the 4th amendment protects it), and keeping that information in your accountant's office (where the 4th amendment does not protect it).

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> The 4th amendment is not a prohibition on collection of information about someone. It's a prohibition of violating the sanctity of your home and person to collect that information.

There's actually considerable current debate (and it will no doubt accelerate with the recent revelations) over the extent to which the "persons, houses, papers, and effects" part of the Fourth Amendment extends beyond ones physical body and tangible property, but its eminently clear that it does because the 4th Amendment is the basis of the general requirement of warrants for wiretaps, even when the wiretaps do not involve a "physical penetration of a constitutionally protected area". [1]

[1] Katz v. United States, 389 U.S. 347 (1967)

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In the age of nuclear weapons doing nothing is not acceptable.

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That doesn't mean doing ANYTHING becomes acceptable. There are lines that shouldn't be crossed. We can debate what those lines should be, but you're suggesting there are no lines.

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Why not? Isn't it at least possible that even the successful detonation of a nuclear weapon would be preferable, from a societal net-quality-of-life perspective, than preventing said detonation, if the tactics necessary for preventing it were sufficiently extreme?

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Potentially we can though. Why is our first reaction to hamstring our intelligence agencies and deny them information other entities doubtless already have? Why not instead work out how to provide them the information in a way that both protects our rights and enables them to do what we pay them to do?

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> Why is our first reaction to hamstring our intelligence agencies and deny them information other entities doubtless already have?

Because history, that's why. FISA -- in its original form, not the "War on Terror"-era "FISA Amendments Act" -- was a limitation on government surveillance power which criminalized all sorts of surveillance except in very narrow circumstances, that was adopted not because of theoretical concerns but because of widespread, notorious, abuse of the national security intelligence-gathering capabilities of the US government for political purposes by the executive branch of the United States government, particularly during the Nixon Administration.

These limitations were weakened through the FISA Amendments Act on the excuse that the limitations were "hamstringing" our intelligence agencies and jeopardizing our national security (after it became publicly clear that, in fact, the limitations were being widely ignored, and the current administration wanted legal cover for actions that it was already undertaking despite the law), and, hey, look what we see -- massive, unfocussed, broad-spectrum surveillance of exactly the type we were assured wouldn't happen if we loosened the reins a bit so that the executive branch had the tools it supposedly needed to focus on direct threats from terrorists without overly burdensome constraints.

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If you start by thinking you need to stop crimes before they happen, it opens the way up for much broader abuses.

When the government does want to be preventative, usually they just set up a fake terrorist who tries to recruit people into their fake plan, and then arrest those people when they agree. Of course, it's debatable whether they would have done anything at all without the fake terrorist, but it gets results!

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That's a pretty inaccurate mischaracterization of how those operations work. Typically the FBI doesn't arrest someone until they have planted or attempted to detonate the fake bomb.

Of course, it's debatable whether they would have done anything at all without the fake terrorist

Not often. If you read the transcripts of the recordings made in such cases (which are often attached to the indictment as evidence, or sometimes available in audio form), the sad fact is that some people run towards the honeypot at full speed. It's entrapment to encourage a reluctant or uncommitted person, but there are quite a few people who are eager to engage in such behavior.

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They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

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Through regular old-fashioned police work, as was done in decades past.

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>And the reason that’s not how it works is because we’ve got congressional oversight and judicial oversight. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

The people shouldn't have to "trust" anything and surely not blindly. As is the case here. The people should KNOW about everything that is being done, and judge for themselves.

If the people have to ..."trust" their government ("Don't worry, we know what's best and we'll do it, we wont bother you with details, just trust us"), then we already have a huge problem here.

The government should represent the will of the people, transparently, openly, and under constant oversight of the citizenry -- not just of judges and congress. Trust should only come into play in very small doses into this.

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It's not really my _will_ that every single intelligence gathering operation be disclosed to the public. There's a lot of value in terrorists not knowing exactly what communication mediums to avoid at any moment. I think it's a good point that hundreds of directly elected people, representing the entire country, have known about this since it's inception. You can't just put every single government action to a vote, for several reasons.

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>It's not really my _will_ that every single intelligence gathering operation be disclosed to the public. There's a lot of value in terrorists not knowing exactly what communication mediums to avoid at any moment.

Really? As if skilled terrorists chat their plans over the phone like casual people. They might get some young idiots, but nobody else. And those things are black swan events.

Furthermore, if every single government action was "disclosed to the public", there wouldn't even be more terrorists. People that get to be domestic terrorists would have less reasons to mistrust that open government. And the country wouldn't be made to invade, mess with other sovereign countries and get their people to seek revenge -- at least not without consensus.

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You can't just put every single government action to a vote, for several reasons.

True, but we also know the moral/ethics of those elected (and how their campaigns are funded).

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I agree, but is there any reason why any actions taken 15 years ago shouldn't be matters of public record? It seems like secrecy on that time frame serves only to protect illegitimate actions.

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Here I disagree.

We are a republic. The proper mechanism here is to hold our representatives accountable. To me it seems absurd to say that "everybody should KNOW" about every intelligence program.

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Accountable for what? A couple of days ago nobody even had a reason to complain.

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And what the hell does "accountable" even mean? So long as they "merely" act unethically, not illegally, there really isn't any way that we can realistically hold them accountable other than to say "In a few years we are going to try to fire you... if we remember too."

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That was remarkably well spoken and reasonable.

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In the words of Jamie Kilstein:

"Honestly democrats, does Obama have to fuck your girlfriend for you to get mad?"

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If voters in the US are just supposed to "trust" Congress and the executive, why even bother having elections?

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Seriously?

To elect somebody you trust.

This is a republic.

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OK, so you've elected representatives that you trust. Now what?

A major purpose of having new elections every 4 years (as opposed to life tenure) is to allow the people to periodically re-evaluate their trust decisions. What do you propose as the basis for that trust? Blind faith?

What's being suggested here is that elected representatives ought to be trusted by the public without access to the information necessary to verify that their trust has not been misplaced.

It's not like we're talking about specific information that was leaked. The mere fact that there exists such a broad surveillance program---authorized by Congress, the White House, and the FISC---was classified "top secret" and not scheduled to be declassified until decades later. The legally-enforced lack of accountability to the people for such a massive program undermines the legitimacy of a government that supposedly governs by the consent of the people.

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Personally I reserve trust for people, but for governments (and other organizations) I have standards and expectations.

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>Now, with respect to the Internet and emails, this does not apply to U.S. citizens, and it does not apply to people living in the United States.

For EU and rest of the world: Every message (email/IM,anything..) trough gmail, hotmail, AOL or facebook is stored by US Gov. and used as they see fit.

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Your comment may be tongue in cheek however the concept of universal jurisdiction is a serious one that many have contemplated over the past century or so.

Why do you assume the 4th Amendment applies for foreign people? Is it because their data simply transits through the US (eg: to Facebook's servers)? Or is it because you expect the US Government to use that data to impose its laws and regulations selectively at its convenience (combating piracy)?

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> Why do you assume the 4th Amendment applies for foreign people?

Because its a limitation on the power of the federal government that has no restrictions as to nationality of targets written in to it.

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Now, with respect to the Internet and emails, this does not apply to U.S. citizens, and it does not apply to people living in the United States.

As for those living outside the US...

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I thought these programs were essentially constitutional when President Bush was in office, and I think they're essentially constitutional now (perhaps moreso with the added oversight of the FISA Amendments Act of 2008). But it's funny how much more interested President Obama is in making the distinction between purely domestic and foreign intercepts now that it's "his" program. I hope the brouhaha of the last few days has taught him some humility if nothing else.

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>> As for those living outside the US...

You should assume the US is recording all your calls. As well as China, England, Russia, Iran, France, and anyone else. The cyber world is spy v. spy. Large govt entities are collecting data on whoever/whatever they can. They are. Doesn't matter how benevolent you think they might be (or, even are). The big deal in the US is that it is spying on it's own citizens, which is a big big no no as far as the constitution and the mandate of the NSA are concerned.

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So we're expected to trust someone that has been lying to us for 5 years?

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What the fuck is the "we are not reading emails of any US citizen" bullshit. I am not a US citizen, so you are reading my emails? That is even more fucked up. For one second forget about US citizens and think about all the other people in the world. I don't care what US government does to it's people, it's your government after all. But what I do care is what it does to data of others (including myself), because it has no right to any of that data. So someone get the questions answered.

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"They are not looking at people’s names, and they’re not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks — if the intelligence community then actually wants to listen to a phone call, they’ve got to go back to a federal judge, just like they would in a criminal investigation."

So if you're not collecting names, whose name goes on the warrant once suspicious is aroused?

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they are getting the data from different sources to not look too suspicious

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Not sure why Obama thinks he would be high on the list of people this program would abuse. Why would the people running the program punish someone that supported the program? The innocent people that have to fear from this program are the people currently opposing the surveillance state. If you are in a position of power either in private industry or the government and are not co-operating with NSLs or other surveillance requests then you are high on the list.

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It also mentions that the spying doesn't involve reading emails of US residents? So that means people outside US jurisdiction are being targeted?

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[deleted]

You're confusing things. Both the NSA and the CIA can constitutionally intercept communications that cross U.S. borders. It's debatable how much oversight Congress can impose on those intercepts without encroaching on executive authority, but the basic principle of cross-border monitoring has been accepted for decades.

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I deleted my post before I saw your reply. It just said "The CIA doesn't spy on American Citizens, that's what the NSA is for." My point being, why on earth would anybody be surprised that the CIA is spying on foreigners. That's the whole point of the CIA.

I deleted my original comment because this is a bottom of the page thread that I think takes away from the larger debate. But since there's a reply now, I'll add it back in.

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My problem with his remarks was that he was addressing the wrong issue. He was defending the need to access this data without a warrant. He then repeatedly stated that he welcomed the discussion.

But how can a national discussion take place about a secret program??

He never addressed this issue of why the program needs to be secret in the first place.

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I do not get why people are not using PGP more. It takes 10 minutes to setup your email client and put public certificate on web. It is just question of time until government starts using this data for "other dangerous stuff" such as tax evasion and not paying parking tickets.

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A lot of people get excited and set it up, then realize there's no one else they know who is willing to use it, rendering it pointless.

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People have not yet accepted the fact that in a digital age, there will always be somebody snooping your information. They still believe with enough laws, it can be stopped.

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Obama: "And I think it’s interesting that there are some folks on the left, but also some folks on the right who are now worried about it who weren’t very worried about it when it was a Republican president. I think that’s good that we’re having this discussion."

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"...represent only small encroachments of people’s privacy."

This is pretty much how it starts. First the people accept small encroachments, then they're asked to accept slightly larger encroachments.

Eventually there is no privacy left.

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<quote>Obama: number one, to keep the American people safe; and number two, to uphold the Constitution.</quote>

isn't that wrong order or priorities exactly what the constitution should protect us from?

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It opens with "all of your duly elected officials have been aware of this program for years and have consistently voted to maintain it."

Yes, that makes it so much better.

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It's hard to believe anything the government says about this because a month ago they would have denied anything was being done at all.

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http://youtu.be/cGKEkI8IV2o?t=7m43s

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Thank you for posting this dshankar.

Is this an impromptu speech? Why is he mumbling so much?

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It isn't a speech - its a reply to a question.

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Well, I would call it a prepared response to an inevitable question, at an unrelated event that was already scheduled.

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"Do you welcome the leak, sir? Do you welcome the leak if you welcome the debate?"

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don't trust the executive branch?: √

don't trust Congress?: √

don't trust what is called "due process and rule of law"?: √

I wonder what problems he thinks people will cause? Petitions are ignored. Protests are relegated to "Free speech zones". People are taking on more debt than ever to live the "American Dream". Sounds like they have everything in control to me…

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we've got a problem... stop funding the NSA, TSA, etc...

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The logical fallacies in his speech are remarkable.

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what is the reason for this being classified? so that people don't stop using Verizon?

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with great powers comes great responsibilities.... and I thought he could handle it...

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We already have an established process with established safeguards designed to strike an appropriate balance between public safety and personal liberty.

This isn't it.

This is so far from it as to make a mockery of the principles that lay at the very foundations of our nation.

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obama - bush = 0

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