If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases

How a church, terror suspects, and some lawyers are pushing privacy on the legal front.

Read the whole story

 

[NickBII]

Sphynx[/url]":37wqock2]Did any legal authority ever explain how email, skype etc. was any different to snail-mail and if not, can the government now start opening your mail before it gets to you?

One wonders what would happen if everyone's snail-mail in the US arrived in their respective mailboxes pre-torn open. Pretty sure there'd be a quick resolution to the problem once and for all if that happened.

Hey, perhaps I can class myself as a hacker by opening up all my neighbours mail. I'll tell them i'm checking for any terror plots so that I can report it to the government and call myself a white-hat hacker instead...-.-

With a warrant the government can open snail-mail. It doesn't need a warrant if the mail is not US Mail (ie: if they captured a German mailboat in one of the World Wars or something).

It has access to the metadata. They can (and frequently do) look at the outside of envelopes bound for a specific suspects house. They don't need a warrant. Historically it was called "mail covers," but the modern version "Mail Isolation Control and Tracking" is much more comprehensive. In '01 the post office started using a system that read the addresses on an envelope electronically, so now when law enforcement asks for a mail cover on some dude's address the post office simply hands over all the pictures.

So if you're making a Fourth Amendment argument, don't ever ever use mail as a metaphor. The Courts have ruled that if you write an address on an envelope, any-god-damn-body can read it, so therefore you have no expectation of privacy regarding what is physically written on the outside of the envelope. In theory this is much different from your phone call metadata, because to see that somebody would have to steal your cell phone (or hack the company, or something), and then deal with the security on said cell-phone.

 

[NickBII]

Doctor Nuke[/url]":3al9ytw8]

Nearly two years ago, the Supreme Court decided in a 5-4 decision that even groups that have substantial reasons to believe that their communications are being surveilled by government intelligence agencies—such as journalists, activists, and attorneys with contacts overseas—have no standing to sue the federal government. The reason? They can't prove that they have been actively surveilled. It's a major catch-22 since those who were being watched weren't exactly going to be told about the surveillance.

I feel that this is where a lot of the problems lay.

As a defendant, they are suppose to be allowed to see all the evidence against them if they are being charge and tried based on something acquired through the surveillance methods that are being kept quiet.

So is this what the government is basing its defense on? The fact that this is being kept hush-hush and that people can't prove anything seems to undermine a lot of what our judicial system is based on, or at least suppose to be.

The right to a fair trial does not mean you get a transcript of every conversation the cops had in the entire investigation. The right to challenge evidence does not mean you get to debunk evidence the prosecution does not present.

Let me put it to you this way. Pretend you're a judge. The defendant is accused of being a drug mule:

Prosecutor: Exhibit A is the defendant's car. Note that the front passenger seat is not present. This is because it was replaced with a special case that carried 50 kilos of cocaine. The various parts of the false seat, including the cocaine, are Exhibit B. Exhibit C is the Body Cam of the Border Patrol agent inspecting the vehicle. Note that the defendant is driving, and becomes extremely agitated when the Agent starts inspecting the passenger seat...

Defense: I can't refute any of those statements, but we're pretty sure they never would have targeted my client if they didn't have a record of him calling the LocoKillers Cartel leader, so he would have been able to traffic his cocaine in peace if they hadn't wantonly violated his Constitutional rights.

On what basis can you exclude the search? It happened at a border crossing, so the Feds didn't need a warrant. They could base their searches on literally anything except ethnic background (14th Amendment, not that anyone actually follows that one). "Fair trial" does not mean criminals get away with EVERYTHING just because some i was not dotted in the earliest stage of the investigation, it means that they have a fair chance to prove they didn't do the shit the government said they did (or the shit the government is claiming is illegal is actually Constitutionally protected speech, etc.).

In non-border cases the Feds have a warrant. They generally don't use the NSA data to get the warrant (because they have to disclose it to the defense), but they can do plenty of investigating without getting a warrant. In the cases that have come to light so far the official investigation started with an informant contacting the suspect. That does not require a warrant. Which means the famous poisoned tree died as soon as the informant opened his mouth and said "Hey, do you like Jihad as much as I do?"

 

[nutjob2]

Sphynx[/url]":30u99t5n]Did any legal authority ever explain how email, skype etc. was any different to snail-mail and if not, can the government now start opening your mail before it gets to you?

One wonders what would happen if everyone's snail-mail in the US arrived in their respective mailboxes pre-torn open. Pretty sure there'd be a quick resolution to the problem once and for all if that happened.

Hey, perhaps I can class myself as a hacker by opening up all my neighbours mail. I'll tell them i'm checking for any terror plots so that I can report it to the government and call myself a white-hat hacker instead...-.-

Your analogy is wrong. The govt is not opening your mail or listening to your phone calls, it's merely recording the address details and when it was sent (which the government is actually doing to mail, see link below), and recording the time and phone number you called.

http://www.nytimes.com/2013/07/04/us/mo ... wanted=all

 

[Sphynx]

NickBII[/url]":f3vqaoju]

Sphynx[/url]":f3vqaoju]Did any legal authority ever explain how email, skype etc. was any different to snail-mail and if not, can the government now start opening your mail before it gets to you?

One wonders what would happen if everyone's snail-mail in the US arrived in their respective mailboxes pre-torn open. Pretty sure there'd be a quick resolution to the problem once and for all if that happened.

Hey, perhaps I can class myself as a hacker by opening up all my neighbours mail. I'll tell them i'm checking for any terror plots so that I can report it to the government and call myself a white-hat hacker instead...-.-

With a warrant the government can open snail-mail. It doesn't need a warrant if the mail is not US Mail (ie: if they captured a German mailboat in one of the World Wars or something).

It has access to the metadata. They can (and frequently do) look at the outside of envelopes bound for a specific suspects house. They don't need a warrant. Historically it was called "mail covers," but the modern version "Mail Isolation Control and Tracking" is much more comprehensive. In '01 the post office started using a system that read the addresses on an envelope electronically, so now when law enforcement asks for a mail cover on some dude's address the post office simply hands over all the pictures.

So if you're making a Fourth Amendment argument, don't ever ever use mail as a metaphor. The Courts have ruled that if you write an address on an envelope, any-god-damn-body can read it, so therefore you have no expectation of privacy regarding what is physically written on the outside of the envelope. In theory this is much different from your phone call metadata, because to see that somebody would have to steal your cell phone (or hack the company, or something), and then deal with the security on said cell-phone.

My understanding is that the likes of the NSA are not just looking at metadata but rather, they're actually looking at the contents of the mail as well (PRISM, backdoor-seeded encryption standards etc.). Thus making the metaphor fairly accurate.

 

[superstition2]

"It is possible, however unsettling it may be, that no one has standing to challenge the NSA surveillance program"

Spoken like a true Cardassian.

(If no one can have standing then it's an inhuman, and thus completely irrational, law.)

 

[Romberry]

nutjob2[/url]":du3eypc9]Is ASYL pronounced "Ass Hole"? Because that would be appropriate for the traitor Snowden..

Only if "ass hole" is pronounced "hero."

I have to tell you that seeing someone basically object to knowing that our government lies to us, ignores the constraints of the Constitution and basically what the government is doing in our names in a supposed representative republic strikes me as insane. How can you have a representative republic when those who are supposedly represented are lied to or otherwise kept in the dark about what their government is doing?

Secret government and secret laws are fundamentally incompatible with a democratic republic. Snowden is no traitor. People like you on the other hand do in fact betray the very principles that the nation was founded on. So get a mirror when you wanna start yakking about "traitors."

 

[Power_Struggle]

If the 'metadata' offer no privacy concerns, why not make them public? Force big telecom to release cell phone data in near real time, so that we can see who is calling who from where...

If people would be ok with this, I'll accept the constitutionality of 'metadata' collection.

 

[NickBII]

Sphynx[/url]":1j1pkkq2]

NickBII[/url]":1j1pkkq2]

Sphynx[/url]":1j1pkkq2]Did any legal authority ever explain how email, skype etc. was any different to snail-mail and if not, can the government now start opening your mail before it gets to you?

One wonders what would happen if everyone's snail-mail in the US arrived in their respective mailboxes pre-torn open. Pretty sure there'd be a quick resolution to the problem once and for all if that happened.

Hey, perhaps I can class myself as a hacker by opening up all my neighbours mail. I'll tell them i'm checking for any terror plots so that I can report it to the government and call myself a white-hat hacker instead...-.-

With a warrant the government can open snail-mail. It doesn't need a warrant if the mail is not US Mail (ie: if they captured a German mailboat in one of the World Wars or something).

It has access to the metadata. They can (and frequently do) look at the outside of envelopes bound for a specific suspects house. They don't need a warrant. Historically it was called "mail covers," but the modern version "Mail Isolation Control and Tracking" is much more comprehensive. In '01 the post office started using a system that read the addresses on an envelope electronically, so now when law enforcement asks for a mail cover on some dude's address the post office simply hands over all the pictures.

So if you're making a Fourth Amendment argument, don't ever ever use mail as a metaphor. The Courts have ruled that if you write an address on an envelope, any-god-damn-body can read it, so therefore you have no expectation of privacy regarding what is physically written on the outside of the envelope. In theory this is much different from your phone call metadata, because to see that somebody would have to steal your cell phone (or hack the company, or something), and then deal with the security on said cell-phone.

My understanding is that the likes of the NSA are not just looking at metadata but rather, they're actually looking at the contents of the mail as well (PRISM, backdoor-seeded encryption standards etc.). Thus making the metaphor fairly accurate.

Ahh yes, but the proof of all that is in Snowden documents the government has not confirmed are true. Some of them are credible. Others are Powerpoint presentations. Most were sensationalized to ridiculous extremes in the two months the media were actually paying attention to them, which makes it incredibly fucking difficult to tell precisely where the line between crackpot-paranoid and sane-paranoid begins. Even many of those allegations are technically not unconstitutional -- I don't particularly like that the US can spy on ordinary citizens in other countries, but since my Swedish cousins are not in America they cannot be part of "the people" in the American Constitution, and therefore their email is fair game.

The anti-NSA accusations that actually stand up in Court are almost entirely based on metadata, which means if you want to get more legal action on any aspect of the scandal you probably shouldn't be talking about snail mail. The Feds will simply point out that snail-mail metadata has been fair game since Washington was President, get the rest of your charges thrown out on the basis that you're making that shit up (this is what standing means in this context), and then you lose.

 

[arcite]

Power_Struggle[/url]":1g8ehurj]If the 'metadata' offer no privacy concerns, why not make them public? Force big telecom to release cell phone data in near real time, so that we can see who is calling who from where...

If people would be ok with this, I'll accept the constitutionality of 'metadata' collection.

Give it a few years, we're already moving toward that. Most people already forfeit their metadata freely to use free social media services. As storage and processing capacity continue to increase exponentially, as does the amount of meta-data collection and processing, it opens up many new doors to perceive the world. I'd contend that those who have high anxiety about privacy are simply looking at the subject with an outdated 20th century perspective.

 

[deliciouswindow]

arcite[/url]":3oimehd7]

Power_Struggle[/url]":3oimehd7]If the 'metadata' offer no privacy concerns, why not make them public? Force big telecom to release cell phone data in near real time, so that we can see who is calling who from where...

If people would be ok with this, I'll accept the constitutionality of 'metadata' collection.

Give it a few years, we're already moving toward that. Most people already forfeit their metadata freely to use free social media services. As storage and processing capacity continue to increase exponentially, as does the amount of meta-data collection and processing, it opens up many new doors to perceive the world. I'd contend that those who have high anxiety about privacy are simply looking at the subject with an outdated 20th century perspective.

OR the people who aren't anxious about privacy are simply looking at the world though an outdated 20th century perspective, and it's going to take a while for people a adjust from centuries of local village gossip, to global mass-surveillance which has been a technical reality for only a blink of an eye.

Anyway, your opinion is bullshit and needs to be ground into the dust wherever and whenever it pops up.
Here is a TED talk explaining why that is the case:
http://www.ted.com/talks/glenn_greenwal ... cy_matters

 

[Some Idiot]

NickBII[/url]":28mvn5qp]

Doctor Nuke[/url]":28mvn5qp]

Nearly two years ago, the Supreme Court decided in a 5-4 decision that even groups that have substantial reasons to believe that their communications are being surveilled by government intelligence agencies—such as journalists, activists, and attorneys with contacts overseas—have no standing to sue the federal government. The reason? They can't prove that they have been actively surveilled. It's a major catch-22 since those who were being watched weren't exactly going to be told about the surveillance.

I feel that this is where a lot of the problems lay.

As a defendant, they are suppose to be allowed to see all the evidence against them if they are being charge and tried based on something acquired through the surveillance methods that are being kept quiet.

So is this what the government is basing its defense on? The fact that this is being kept hush-hush and that people can't prove anything seems to undermine a lot of what our judicial system is based on, or at least suppose to be.

The right to a fair trial does not mean you get a transcript of every conversation the cops had in the entire investigation. The right to challenge evidence does not mean you get to debunk evidence the prosecution does not present.

Let me put it to you this way. Pretend you're a judge. The defendant is accused of being a drug mule:

Prosecutor: Exhibit A is the defendant's car. Note that the front passenger seat is not present. This is because it was replaced with a special case that carried 50 kilos of cocaine. The various parts of the false seat, including the cocaine, are Exhibit B. Exhibit C is the Body Cam of the Border Patrol agent inspecting the vehicle. Note that the defendant is driving, and becomes extremely agitated when the Agent starts inspecting the passenger seat...

Defense: I can't refute any of those statements, but we're pretty sure they never would have targeted my client if they didn't have a record of him calling the LocoKillers Cartel leader, so he would have been able to traffic his cocaine in peace if they hadn't wantonly violated his Constitutional rights.

On what basis can you exclude the search? It happened at a border crossing, so the Feds didn't need a warrant. They could base their searches on literally anything except ethnic background (14th Amendment, not that anyone actually follows that one). "Fair trial" does not mean criminals get away with EVERYTHING just because some i was not dotted in the earliest stage of the investigation, it means that they have a fair chance to prove they didn't do the shit the government said they did (or the shit the government is claiming is illegal is actually Constitutionally protected speech, etc.).

In non-border cases the Feds have a warrant. They generally don't use the NSA data to get the warrant (because they have to disclose it to the defense), but they can do plenty of investigating without getting a warrant. In the cases that have come to light so far the official investigation started with an informant contacting the suspect. That does not require a warrant. Which means the famous poisoned tree died as soon as the informant opened his mouth and said "Hey, do you like Jihad as much as I do?"

You have been paying attention to those cases where information shared by the NSA with other agencies has been , knowingly and with malicious intent, been used in Parallel Construction of evidence, right? As in, the chain of evidence has been tampered with in a number of moderately high-profile cases.

Are you arguing that such a thing is perfectly permissible in a trial because the methods are secret, as we're increasingly seeing from the DoJ? Because that implies that not only did the DoJ know that the evidence was tainted, it is actvely colluding in criminal activities against its own populace. This is, by any stretch, not a good thing.

 

[Zak]

mexaly[/url]":2kof50r0]When the axe comes down, there will be a lot of angry, unemployed spooks.

Oh, no worries, I'm sure there are plenty of other places in the government where nerdy assholes can get jobs. Besides, NSA will never really go away. They'll just rename it and make it more secretive so it'll take at least another 10 years before the new incarnation is uncovered.

 

[Zak]

So with telecom data for instance, the government has posited that because a call from one person to another forcibly transits Verizon’s network, those two parties have already shared that data with Verizon. Therefore, the government argues, such data can't be private, and it’s OK to collect it.

This never made any sense to me. The third party should be required by law to protect the data and keep the data secure and not share it it with others. In a perfect world, I guess.

 

[infernallexicon]

The thing I can't fathom is how metadata applies to the third-party doctrine. This metadata is often not possessed by the actual users, nor is the information ever actually provided to the third parties. Unlike providing the name or address to a third party--information that is actually given to them--metadata is something collected by the carrier. Thus, is the carrier not the first party of this information?

 

[Meailda]

NickBII[/url]":39ss6seo]

Sphynx[/url]":39ss6seo]

NickBII[/url]":39ss6seo]

Sphynx[/url]":39ss6seo]Did any legal authority ever explain how email, skype etc. was any different to snail-mail and if not, can the government now start opening your mail before it gets to you?

One wonders what would happen if everyone's snail-mail in the US arrived in their respective mailboxes pre-torn open. Pretty sure there'd be a quick resolution to the problem once and for all if that happened.

Hey, perhaps I can class myself as a hacker by opening up all my neighbours mail. I'll tell them i'm checking for any terror plots so that I can report it to the government and call myself a white-hat hacker instead...-.-

With a warrant the government can open snail-mail. It doesn't need a warrant if the mail is not US Mail (ie: if they captured a German mailboat in one of the World Wars or something).

It has access to the metadata. They can (and frequently do) look at the outside of envelopes bound for a specific suspects house. They don't need a warrant. Historically it was called "mail covers," but the modern version "Mail Isolation Control and Tracking" is much more comprehensive. In '01 the post office started using a system that read the addresses on an envelope electronically, so now when law enforcement asks for a mail cover on some dude's address the post office simply hands over all the pictures.

So if you're making a Fourth Amendment argument, don't ever ever use mail as a metaphor. The Courts have ruled that if you write an address on an envelope, any-god-damn-body can read it, so therefore you have no expectation of privacy regarding what is physically written on the outside of the envelope. In theory this is much different from your phone call metadata, because to see that somebody would have to steal your cell phone (or hack the company, or something), and then deal with the security on said cell-phone.

My understanding is that the likes of the NSA are not just looking at metadata but rather, they're actually looking at the contents of the mail as well (PRISM, backdoor-seeded encryption standards etc.). Thus making the metaphor fairly accurate.

Ahh yes, but the proof of all that is in Snowden documents the government has not confirmed are true. Some of them are credible. Others are Powerpoint presentations. Most were sensationalized to ridiculous extremes in the two months the media were actually paying attention to them, which makes it incredibly fucking difficult to tell precisely where the line between crackpot-paranoid and sane-paranoid begins. Even many of those allegations are technically not unconstitutional -- I don't particularly like that the US can spy on ordinary citizens in other countries, but since my Swedish cousins are not in America they cannot be part of "the people" in the American Constitution, and therefore their email is fair game.

The anti-NSA accusations that actually stand up in Court are almost entirely based on metadata, which means if you want to get more legal action on any aspect of the scandal you probably shouldn't be talking about snail mail. The Feds will simply point out that snail-mail metadata has been fair game since Washington was President, get the rest of your charges thrown out on the basis that you're making that shit up (this is what standing means in this context), and then you lose.

Look up XKEYSCORE. They are sucking up most of the internet in real time. That is not just metadata that is all content as well. Even the encrypted stuff which they are storing until they can break it. There are some suggestions in the leaks that most of the encrypted communications are broken immediately. So riddle me this. Do we have expectation of privacy in data that we encrypted expecting only the legitimate recipient to be a able to read it?
This phone metadata stuff while important is just a side show. The real story is section 702 and EO 12333. These authorities are being stretched and broken regularly to justify illegality.
It is my hope that inroads for restoring the 1st, 4th, and 5th amendments come from these cases, but the really offensive stuff is yet to hit a court room (Unless you count where Yahoo was told that they do not have any standing to object to NSLs that they were receiving.)

 

[ColdWetDog]

sprockkets[/url]":127mzw7j]

The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of this authority.

Ah, the ol' "Commander in Chief" bull shit argument, made infamous by Bush, and further abused by Obama.

Your view of history is a bit narrow. Try Abraham Lincoln, Woodrow Wilson, Roosevelt, Johnson and in fact, everyone but Carter and Ford.

 

[Meailda]

Zak[/url]":6ljq0q4x]

So with telecom data for instance, the government has posited that because a call from one person to another forcibly transits Verizon’s network, those two parties have already shared that data with Verizon. Therefore, the government argues, such data can't be private, and it’s OK to collect it.

This never made any sense to me. The third party should be required by law to protect the data and keep the data secure and not share it it with others. In a perfect world, I guess.

Unfortunately data privacy laws are a non-starter here because there is too much money to be made off of data.

 

[jimbo49]

everything will definitely been blamed on Snowden. the UK has already started. it is blaming the leaks on the fact that can no longer find big drug lords and dont know what they're doing or where they are. they have ignored totally the fact that half the time they couldn't find their ass if they was holding it in both hands!! it's just an excuse to lay the blame at someone else door and Snowden fills the bill admirably!

 

[Bob.Brown]

I wish Ars would stop calling it "metadata." Metadata is a description of data. Here is "metadata:"

1-8 Date
11-18 Time
20-22 Extension
25-26 Trunk number
30-49 Call type
51-65 Calling number
71-79 Call duration

What the NSA is collecting is call detail data.. Government BSpeak says "metadata," but Ars should call it what it is. Here is a call detail record:

12/23/14 8:43AM 111 01 < DIL incoming >1-470-555-1212 00:03'08"

See the difference?

 

[Doctor Nuke]

NickBII[/url]":25iqz85n]

Doctor Nuke[/url]":25iqz85n]

Nearly two years ago, the Supreme Court decided in a 5-4 decision that even groups that have substantial reasons to believe that their communications are being surveilled by government intelligence agencies—such as journalists, activists, and attorneys with contacts overseas—have no standing to sue the federal government. The reason? They can't prove that they have been actively surveilled. It's a major catch-22 since those who were being watched weren't exactly going to be told about the surveillance.

I feel that this is where a lot of the problems lay.

As a defendant, they are suppose to be allowed to see all the evidence against them if they are being charge and tried based on something acquired through the surveillance methods that are being kept quiet.

So is this what the government is basing its defense on? The fact that this is being kept hush-hush and that people can't prove anything seems to undermine a lot of what our judicial system is based on, or at least suppose to be.

The right to a fair trial does not mean you get a transcript of every conversation the cops had in the entire investigation. The right to challenge evidence does not mean you get to debunk evidence the prosecution does not present.

Let me put it to you this way. Pretend you're a judge. The defendant is accused of being a drug mule:

Prosecutor: Exhibit A is the defendant's car. Note that the front passenger seat is not present. This is because it was replaced with a special case that carried 50 kilos of cocaine. The various parts of the false seat, including the cocaine, are Exhibit B. Exhibit C is the Body Cam of the Border Patrol agent inspecting the vehicle. Note that the defendant is driving, and becomes extremely agitated when the Agent starts inspecting the passenger seat...

Defense: I can't refute any of those statements, but we're pretty sure they never would have targeted my client if they didn't have a record of him calling the LocoKillers Cartel leader, so he would have been able to traffic his cocaine in peace if they hadn't wantonly violated his Constitutional rights.

On what basis can you exclude the search? It happened at a border crossing, so the Feds didn't need a warrant. They could base their searches on literally anything except ethnic background (14th Amendment, not that anyone actually follows that one). "Fair trial" does not mean criminals get away with EVERYTHING just because some i was not dotted in the earliest stage of the investigation, it means that they have a fair chance to prove they didn't do the shit the government said they did (or the shit the government is claiming is illegal is actually Constitutionally protected speech, etc.).

In non-border cases the Feds have a warrant. They generally don't use the NSA data to get the warrant (because they have to disclose it to the defense), but they can do plenty of investigating without getting a warrant. In the cases that have come to light so far the official investigation started with an informant contacting the suspect. That does not require a warrant. Which means the famous poisoned tree died as soon as the informant opened his mouth and said "Hey, do you like Jihad as much as I do?"

There is a difference between crossing the border, where it is known and it is outright stated on signs for many miles that you may or may not have your vehicle inspected, that is a given, so you get what you get. There are rules and laws already in place. In the case of all the metadata collection, it's not about debunking evidence, it is about how it is obtained, held, and used with regards to telephone data. The idea that metadata is being collected with no checks and no balances in place bothers me. The phone metadata is just a tip of the iceberg of a bigger problem. Once this whole thing is resolved, that will open the door up to fixing the rest of the problems that exist.

The way all of this has played out is that nobody has a way, right, or method to challenge anything that is done with how the NSA works because nobody has standings, nor is there a clear path or method to define how one obtains standings. The way the rules are written currently, the government has a blank canvas in which to do whatever they want. And that is something that I am not okay with.

 

[Hypopraxia]

Vapur9[/url]":yzom7gd1]

iorcbyux[/url]":yzom7gd1]Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

The 10th Amendment says otherwise. If State law prohibits something that the Federal government does not, State law takes precedence. If the Federal government prohibits something not outlined in the Constitution, the laws of the State should take precedence (which has been a point of contention for a long time). This is why marijuana and gay marriage can be legalized State by State. The Federal government's purpose is to regulate interstate and international commerce, and not to have influence over intrastate laws and commerce; though, they do it all the time. Each State is supposed to be considered as sovereign.

You are completely wrong. We had a civil war about this, and the people who had your interpretation of the supremacy clause lost. States are not sovereign governmental bodies as they are subject to the Federal Government. See: The 10th Amendment.

 

[Deleted member 1]

Bob.Brown[/url]":w6ddkwd7]I wish Ars would stop calling it "metadata." Metadata is a description of data. Here is "metadata:"

1-8 Date
11-18 Time
20-22 Extension
25-26 Trunk number
30-49 Call type
51-65 Calling number
71-79 Call duration

What the NSA is collecting is call detail data.. Government BSpeak says "metadata," but Ars should call it what it is. Here is a call detail record:

12/23/14 8:43AM 111 01 < DIL incoming >1-470-555-1212 00:03'08"

See the difference?

Its all semantics I guess. If you consider the call itself to be the actual data, then the call detail record is information about the call or the metadata of the call. Your example shows the schema for a call detail record, a different kind of metadata. Metadata

 

[Kanchou]

Zak[/url]":ka9qw93o]This never made any sense to me. The third party should be required by law to protect the data and keep the data secure and not share it it with others. In a perfect world, I guess.

It make sense because of the 1st Amendment. People have the every rights to share the information they acquired in legal manners outside a few narrowly defined exception to the default like clergy, attorneys, doctors, etc. The attempts to invert this long tradition to make every interaction confidential absent consents are relatively new and will unlikely to be accepted in U.S.

The current privacy/confidentially laws had already been proven to be abused/counter-productive enough as they currently stand.
http://www.nytimes.com/2014/06/16/us/va ... .html?_r=0

One way the V.A. has silenced whistle-blowers, their lawyers maintain, is by threatening to hold them in violation of patient privacy laws if they discuss medical cases.

https://www.cta.org/Professional-Develo ... tacks.aspx

Special education teachers are supposed to receive information about a student’s violent past, ...
This also affects general education teachers who have special education students in their classes or deal with them in other capacities. Since they not considered the “teacher of record,” confidentiality may be used to keep them from being informed that a student has an IEP (Individualized Education Program) or a history of acting out.

That lack of information led to severe injuries for Julie Davis, a general education teacher and member of the Vacaville Teachers Association (VTA)

 

[UncleNine]

People (in government agencies, businesses, charitable organizations, the Senate, etc) tend to do what they can get away with--what they think they can keep "out of the paper." Whether they truly believe they are morally right or not doesn't matter. Some more than others, but we're all wired this way. People at the NSA "group-thunk" their way beyond the line. But, understandably so. The CIA, DIA, Army, White House, IBM, Comcast, et. al. have all done it. Doesn't make it right, but means we have to be a "nation of laws, not of men." The checks in law, regulation, oversight, and more all have to be there. Secret organizations, who require secrecy in order to fulfill their mission, need this oversight even more. Or they will truly go off the reservation, as NSA has done. They either must be stopped, or necessary enabling legislation and oversight must be tightened. Huh?

 

[Carewolf]

Bob.Brown[/url]":18nad9rb]I wish Ars would stop calling it "metadata." Metadata is a description of data. Here is "metadata:"

1-8 Date
11-18 Time
20-22 Extension
25-26 Trunk number
30-49 Call type
51-65 Calling number
71-79 Call duration

What the NSA is collecting is call detail data.. Government BSpeak says "metadata," but Ars should call it what it is. Here is a call detail record:

12/23/14 8:43AM 111 01 < DIL incoming >1-470-555-1212 00:03'08"

See the difference?

That data of a call is the meat of a call, that is the voice data. The data that is about the call itself and not its content, is metadata. Call details ARE metadata.

 

[ChickenHawk]

nutjob2[/url]":1nz3fawg][ Is ASYL pronounced "Ass Hole"? Because that would be appropriate for the traitor Snowden.

Whom did he betray?

It is not reason to report a crime in process to the authority responsible for monitoring the offender. The body that authorises and polices the US state is supposed to be the people of the USA.

 

[Vapur9]

Hypopraxia[/url]":1y2uauh5]

Vapur9[/url]":1y2uauh5]

iorcbyux[/url]":1y2uauh5]Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

The 10th Amendment says otherwise. If State law prohibits something that the Federal government does not, State law takes precedence. If the Federal government prohibits something not outlined in the Constitution, the laws of the State should take precedence (which has been a point of contention for a long time). This is why marijuana and gay marriage can be legalized State by State. The Federal government's purpose is to regulate interstate and international commerce, and not to have influence over intrastate laws and commerce; though, they do it all the time. Each State is supposed to be considered as sovereign.

You are completely wrong. We had a civil war about this, and the people who had your interpretation of the supremacy clause lost. States are not sovereign governmental bodies as they are subject to the Federal Government. See: The 10th Amendment.

Lincoln was a wartime dictator that didn't believe in the free-association of the States. After the war during the Reconstruction period, they disallowed certain people from the opposition party from running for office. If we accept what this new America has become, then the vision of what the Founding Fathers created is lost. Congress had no authority to reconvene, but that power was too tempting to lose.

We have an Amendment process to outline in the Constitution about what the States must follow, per the requirements of the 10th Amendment. Prohibition followed this method because it was the right way to go about it. Laws that bypass it, such as Controlled Substances Act, are imposed on the States without following the spirit or the letter of the law. There are many examples of such abuses but we just accept them, mainly due to flawed judgments from the Judicial Branch on their legitimacy. Thankfully, those opinions are not written in stone and can change.

 

[MickeB]

mad_magician[/url]":1jhzy7gy]also interesting, based on a bit of quick Wikipedia reading that smith has a "two prong test"

This decision in Katz was later developed into the now commonly used two-prong test, adopted in Smith v. Maryland (1979),[44] for determining whether the Fourth Amendment is applicable in a given circumstance:[45][46]

a person "has exhibited an actual (subjective) expectation of privacy"; and
society is prepared to recognize that this expectation is (objectively) reasonable.

The second "prong" seems to have been ignored. without digging up the surveys, "society" seems to feel that cell phones, phone calls, call records and e-mail are "Private" and reasonably so.

But how is that second condition to be interpreted? When I read that, I get the impression that the second clause rather restricts the applicability of the first clause: not only would a person have needed to "exhibited an actual (subjective) expectation of privacy" for the 4th to kick in, you would *in addition* need for the society to agree that this expectation was reasonable.

 

[feistypenguin]

MickeB[/url]":2dq7y3m9]

mad_magician[/url]":2dq7y3m9]also interesting, based on a bit of quick Wikipedia reading that smith has a "two prong test"

This decision in Katz was later developed into the now commonly used two-prong test, adopted in Smith v. Maryland (1979),[44] for determining whether the Fourth Amendment is applicable in a given circumstance:[45][46]

a person "has exhibited an actual (subjective) expectation of privacy"; and
society is prepared to recognize that this expectation is (objectively) reasonable.

The second "prong" seems to have been ignored. without digging up the surveys, "society" seems to feel that cell phones, phone calls, call records and e-mail are "Private" and reasonably so.

But how is that second condition to be interpreted? When I read that, I get the impression that the second clause rather restricts the applicability of the first clause: not only would a person have needed to "exhibited an actual (subjective) expectation of privacy" for the 4th to kick in, you would *in addition* need for the society to agree that this expectation was reasonable.

This dovetails with the use of SSL or other means of encryption in online communications: In my mind, if I am using an SSL or VPN connection to access a website, that should meet both criteria- I have exhibited an expectation of privacy by encrypting my communications, and I think anyone who knows what SSL is, would agree that it's reasonable to want to encrypt your credit card info before sending it out over the internet.

Of course, if you were able to assert this defense, we may see the government may flip back to its playbook from 1992.

 

[graylshaped]

dbright[/url]":3twlob6t]Muhtorov's case is quite interesting.

The US government has no problem allying with Islamic terrorist organizations in the past, when it suited them. For example they supported the Pakistani state during the war of separation of East Pakistan and West Pakistan, even as Islamic terrorist groups were conducting mass executions in East Pakistan. That was the 1970s. Kissinger was there - the point was to appease China because China was Pakistan's ally. And China was the Soviet's enemy. So to win the cold war.... get cozy with the Islamic Jihadists.

Then there was the AFghan Soviet war, documented well in George Crile's book Charlie Wilsons War. Pakistan was basically an Islamic terrorist staging ground. The US poured money into it through Peshawar, working alongside the Saudis and others - even Israel was in on the game, according to the book.

Then there are the various modern alliances with Gulf dictators and princes, who are huge funders of Islamic terrorism. ISIL gets money and aid from somewhere, and its probably not their job at Starbucks. And on and on.


Uzbekistan is a dictatorship where slavery is still legal. They call it by other names but when you have people forced by the state, without any criminal convictions, to go pick cotton in the cotton fields, i dont know how you can call it anything else. There are some horrible stories from a UK Diplomat stationed in Uzbekistan, named Craig Murray. Massive abuses, police who routinely rape people, etc. etc. Of course, this dictatorship became our 'ally' since Uzbekistan had a nice leftover soviet air base right next to it's border with Afghanistan that we needed to move troops in and out during the GWOT.

Muhtorov is claiming innocence, but lets ask what happens if he was guilty? If he had simply been a CIA agent, and Obama had targeted the Uzbek state for 'regime change', then Muhtorov could have gotten payed big money and treated as a heroic freedom fighter. Maybe some congressman would pick up his cause, have photos of them shaking his hand in their office to show off to reporters.

If Muhtorov had gone to Syria or any of the other Arab Spring states to participate in revolution, then what would the government's place be? What if he had been in Lybia fighting against Khadaffi? Khadaffi turned from former terrorist who killed civilians on airlines, to "ally in the war on terror" overnight. Complete with fawning interview from David Frost (yes that one, who "bravely" stood up to Nixon, did a puff piece of the brutal dictator Khadaffi), Then, in the Arab Spring, Khadaffi became the Enemy again.

These international cases kind of make a mockery of the justice system. Somehow the 'realpolitik' of Kissinger echoes down through the years, polluting any idea of morality and proportionality that the justice system is theoretically founded on. War criminals and serial killers get to shake hands with the president, some cab driver who is suckered into ordering bomb parts by an undercover FBI agent gets decades in prison. Muhtorov, if guilty, would face punishment vastly out of proportion with what other who have committed similar "material support" have faced in the past. Because he picked the wrong place and wrong time to support terrorists. Shoulda waited 5 years, maybe then President Jeb Bush will be landing on an air base in Central Asia proclaiming "mission accomplished" after our troops have invaded Tashkent.


What does that have to do with NSA surveillance being used on his case? The NSA surveillance is a "force multiplier" in the legal cases brought by the government. Secret evidence, secret courts, secret proceedings, secret witnesses, and on and on. History tells us these things are Bad. They are aspects of tyranny that we were supposed to move away from starting with the Enlightenment and going forward. These 'little guy cases' build up case law where these Bad Things become accepted into the justice system. The cases get little attention in the media, and the judge or jury thinks its not a big deal, because its a small time crook. Where does that end up? The government will have so much power it can silence dissent.

It's already happened in the Drake case - they were using some of these smaller terrorism and national security cases as precedent to use secret evidence in his trial. But what was his case really about ? Not just him leaking info to a journalist - it was that he criticized an inferior technical solution that was very profitable for a select number of well connected government IT contractors, and their revolving door CEOs who move back and forth within the government and industry. This is very real and very dangerous corruption leading to an ineffective and inept government. Criticism of such abuses and inefficiencies is a vital part of democracy. If it becomes impossible to criticise national security failures, or bad decisions made by security agencies, all due to national security law, and with a legal precedent being set in these 'small cases', then national security will actually be harmed, and decreased, not improved.

tl;dr: "politics makes strange bedfellows."

 

[Korios]

BeanBagKing[/url]":1ljvhsca]Legitimate question. Every state has wiretapping laws, these vary, but in general at least one, if not both parties have to be aware a conversation is being recorded. I, as a third party, can't just go and record the conversation of two random people.

But the government is essentially saying that that conversation is being disclosed to a third party already. Verizon, AT&T, whoever, and therefor they no longer have an expectation to privacy.

So why is it illegal for me to wiretap people then?

The US government is apparently above the law, but you and I are not.

 

[graylshaped]

infernallexicon[/url]":g9y0x0yw]The thing I can't fathom is how metadata applies to the third-party doctrine. This metadata is often not possessed by the actual users, nor is the information ever actually provided to the third parties. Unlike providing the name or address to a third party--information that is actually given to them--metadata is something collected by the carrier. Thus, is the carrier not the first party of this information?

Dunno about your carrier, but I get a big fat PDF every month listing when, where, to or from what number, and how long we spoke on every number on my account. And a listing of all texts to and from...

 

[Gnack]

ColdWetDog[/url]":1euvs1ec]

sprockkets[/url]":1euvs1ec]

The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of this authority.

Ah, the ol' "Commander in Chief" bull shit argument, made infamous by Bush, and further abused by Obama.

Your view of history is a bit narrow. Try Abraham Lincoln, Woodrow Wilson, Roosevelt, Johnson and in fact, everyone but Carter and Ford.

Even Carter used executive (commander in chief) authority to launch a military operation clearly within the borders of a foreign nation (the failed Iran hostage rescue)

Your overall point is very well taken. For those thinking Bush started this sort of thing... I give you JFK.

 

[graylshaped]

ChickenHawk[/url]":2bi1ln55]

nutjob2[/url]":2bi1ln55][ Is ASYL pronounced "Ass Hole"? Because that would be appropriate for the traitor Snowden.

Whom did he betray?

It is not reason to report a crime in process to the authority responsible for monitoring the offender. The body that authorises and polices the US state is supposed to be the people of the USA.

Edward Snowden sparked a valuable debate about the limits we should place on our government's monitoring of its own law-abiding citizens, but I, for one, have a very hard time getting past the fact he also willingly provided information on US intelligence-gathering capabilities to foreign entities inimical to US interests.

 

[ChickenHawk]

graylshaped[/url]":16ehu26a]

ChickenHawk[/url]":16ehu26a]

nutjob2[/url]":16ehu26a][ Is ASYL pronounced "Ass Hole"? Because that would be appropriate for the traitor Snowden.

Whom did he betray?

It is not reason to report a crime in process to the authority responsible for monitoring the offender. The body that authorises and polices the US state is supposed to be the people of the USA.

Edward Snowden sparked a valuable debate about the limits we should place on our government's monitoring of its own law-abiding citizens, but I, for one, have a very hard time getting past the fact he also willingly provided information on US intelligence-gathering capabilities to foreign entities inimical to US interests.

There was no other way than to go public and with evidence. Lets face it, the rest of the public would have dismissed it as conspiracy theories and fiction - and thats exactly the tale the NSA would have told (indeed, they still do try to spin it that way, even though each time they do evidence appears showing they do exactly what they said they don't do).

As for "Foriegn entities imicial to US interests", well if you define Glenn Greenwald/The Free Press as "Inimical to US interests" and US interest as the Government's interests (and not the US's actual interests) then I guess you are right, but it does require much torturing of the language to get there.

 

[swr]

He's accused of providing material support and resources to the Islamic Jihad Union (IJU), and the US believes the IJU is an Islamic terrorist group.

Here we have an important lesson: If you're going to set up an organization that might be doing things the US government might not approve of, don't include the word "union" in the name. They do keyword searches for that stuff.

 

[DNick]

anarchyiscoming[/url]":1obs6034]What does it matter what the supreme court does? The NSA operates above any laws and outside any regulations. It will be a nice dog and pony show to watch. But in the end nothing will change and Americans will go back to watching their reality tv and living with massive amounts of debt lying, to themselves about one day living the American dream.

I agree totally. Two things would give me hope in this case, though. We might eventually get a president who cares about the American citizens, and that president might force prosecution of officials who violated a specific law. And, if it's illegal, that makes it much more difficult to use the illegally obtained evidence against people. I know they work around that with fake probable cause and invisible informants, but it seems like sooner or later, they'll try to use information that couldn't have come from anywhere else, and at that point, the cat will be out of the bag.

 

[graylshaped]

ChickenHawk[/url]":30vmvsrp]

graylshaped[/url]":30vmvsrp]

ChickenHawk[/url]":30vmvsrp]

nutjob2[/url]":30vmvsrp][ Is ASYL pronounced "Ass Hole"? Because that would be appropriate for the traitor Snowden.

Whom did he betray?

It is not reason to report a crime in process to the authority responsible for monitoring the offender. The body that authorises and polices the US state is supposed to be the people of the USA.

Edward Snowden sparked a valuable debate about the limits we should place on our government's monitoring of its own law-abiding citizens, but I, for one, have a very hard time getting past the fact he also willingly provided information on US intelligence-gathering capabilities to foreign entities inimical to US interests.

There was no other way than to go public and with evidence. Lets face it, the rest of the public would have dismissed it as conspiracy theories and fiction - and thats exactly the tale the NSA would have told (indeed, they still do try to spin it that way, even though each time they do evidence appears showing they do exactly what they said they don't do).

As for "Foriegn entities imicial to US interests", well if you define Glenn Greenwald/The Free Press as "Inimical to US interests" and US interest as the Government's interests (and not the US's actual interests) then I guess you are right, but it does require much torturing of the language to get there.

I hear you. You're cool with what he did. I'm not.

 

[kindakrazy]

DNick[/url]":36lssoa1]

anarchyiscoming[/url]":36lssoa1]What does it matter what the supreme court does? The NSA operates above any laws and outside any regulations. It will be a nice dog and pony show to watch. But in the end nothing will change and Americans will go back to watching their reality tv and living with massive amounts of debt lying, to themselves about one day living the American dream.

I agree totally. Two things would give me hope in this case, though. We might eventually get a president who cares about the American citizens, and that president might force prosecution of officials who violated a specific law. And, if it's illegal, that makes it much more difficult to use the illegally obtained evidence against people. I know they work around that with fake probable cause and invisible informants, but it seems like sooner or later, they'll try to use information that couldn't have come from anywhere else, and at that point, the cat will be out of the bag.

How do you plan to sneak the Presidential candidate past the party in power? He would have to lie for 20 years straight to get to be president, then completely flip. And then both the Senate and Congress would be against him. Probably would be fairly likely to get impeached over something...