NSA phone records: unconstitutional, or just a bad idea, or what?
I’ve seen a lot of chatter around the blogosphere about the NSA phone records program that goes like this: “Those who argue that it’s constitutional are in favor of it.” But the two do not necessarily go together.
I don’t usually quote Barack Obama approvingly, but he hit the proverbial nail on the head last Friday when he said of the NSA phone records program:
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.
Well, we absolutely do have some problems here, because an increasing number of people do not trust those government institutions, and they have pretty good reasons for seeing it that way.
But that’s a separate issue from the question of whether NSA was “abiding by the Constitution” when it collected and stored the data if it limited access to it in the ways it says it did. And that’s a separate question from whether it did follow those limits. Which is in turn a separate question from whether, even if it did follow those limits and was abiding by the Constitution, the program is something we want, and how vulnerable to abuse it might be.
Now, you may think the Constitution is a relatively easy read. Absolutely clear, written in plain English for anyone to see and understand. And you may also think that the reason lawyers and judges and SCOTUS justices go on and on and on about it as though it’s so complex is because they have a political agenda, and/or like to twist things and make them seem obscure, and/or can’t see the forest for the trees.
But it’s really not all that simple, and the entire structure of the appeals court system culminating in the Supreme Court isn’t there just to enrich the coffers of lawyers.
Take something as concise as the Fourth Amendment. It reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Short and sweet and oh so important, and written way back in a time when in order to seize stuff you had to physically go into a home and seize actual stuff (or actual people). Of course, there was a back story, too, about how and why the amendment was written and included in the Bill of Rights, and what the words in it meant at that time because of that history. And there’s also a sequel which includes many court decisions about how the amendment could and should be applied in the present day, when all sorts of methods unforeseen by the Founders have come along and given government new and creative ways to search and to seize.
Saying something is constitutional because it does not violate the Fourth Amendment is not the same as saying it’s not a bad practice, or that you like it, or that it shouldn’t be outlawed. Something can be bad, unlikable, and worthy of outlawing and still be completely constitutional, in which case the remedy for it would be to ban it, or to ban those parts of it that make it objectionable. Saying something is constitutional because it does not violate the Fourth Amendment is not the same as saying it’s not easily subject to abuse, overreach, and corruption, and therefore not potentially dangerous.
Which brings us to the fact that the NSA’s accessing phone call records (who, when, where) that are already the property of a phone company—invasive and dangerous though this might feel—is not unconstitutional, at least as the legal system has ruled so far. Of course, if the NSA rules setting up the program read that the agency could dip into content without a warrant as required by the Fourth Amendment, that would be different, and clearly unconstitutional. Or, if the agency was actually doing this even though the rules didn’t allow it, that would mean they were operating illegally. But at this point we’ve seen nothing to prove that either was the case.
Perhaps a test case on the NSA program could ultimately reach the Supreme Court and cause it to rule anew, and SCOTUS might reinterpret the Fourth Amendment in such a way as to declare the program unconstitutional even the way it’s written. Stranger things have happened. But understand what lawyer Andy McCarthy is saying when he writes, with characteristic clarity:
…[H]ow it is “clear” that a phone record, owned and possessed by a telephone service provider (not the customer), qualifies as the person, house, paper, or effect of the customer, such that the government’s acquisition of it violates the Fourth Amendment[?] The federal courts have consistently, emphatically rejected this implausible suggestion, holding that government’s collection of phone records does not even implicate the Fourth Amendment, much less violate it…
[T]he animating idea behind the original Fourth Amendment is protection of personal property. The Constitution was not deemed to be violated absent some form of government trespass…[E]ven this new Fourth Amendment [with its “reasonable expectation of privacy”] that progressives have erected on the remains of the original one has never protected third-party business records. That, in particular, includes “metadata” ”” customer telephone activity (not the content of conversations, but numbers dialed, time and duration of calls, etc.), records of which are maintained by service providers.
To give such third-party business records constitutional status…the judges [would have] to invent a newer, more expansive Fourth Amendment.
Simply put: content is protected, records are not.
[NOTE: Snowden has, of course, made a lot of other allegations about NSA than that they simply kept the phone log records. But so far he’s provided no proof of these claims. He has said, for example, that he was able to access anyone’s email content as long as he had a personal email address for him/her, which would certainly be a very clear violation of the Fourth Amendment. But is he telling the truth? Not according to experts, who say it’s impossible that he could have accomplished what he claims he did.
So the jury, as they say, is still out on that.
And please read this from Ace.]
[NOTE II: Part II of the post I wrote yesterday on distrust and security will be coming very soon, but not today.]
I think McCarthy, as a former prosecutor, might be a little biased toward granting easier access to records. I’ve worked for a telecommunications company with responsibilities that included providing subscriber records to authorities. The only time they did NOT have to provide a subpoena was in the case of fraud. Specifically, the person illegally accessed our network using a counterfeit device, which was investigated by the Secret Service.
Are we now to believe that this longstanding practice is not valid – that the NSA (or the FBI, DHS or whomever the president declares) has free reign to rummage around all of a telecommunications company’s records? This seems unprecedented.
A lot of us instinctively reject this practice because it treats all subscribers as potential criminals by default, which reverses the presumption of innocence paradigm. I think removing barriers such as subpoenas (i.e. requiring an outside authority’s consent) would inevitably lead to a change in the state’s attitude about the boundaries of their authority. Because they can freely scrutinize our lives with only internal oversight, they’ll find all kinds of new reasons beyond “terrorism” to do so. They’ll stop thinking of us as free citizens who are entitled to the dignity of privacy. Just look at what’s happened with the TSA and their “enhanced pat-downs.” Not only are they blatantly abusing their authority (feeling up a lot of hot women and stealing valuables), but they bully and threaten anyone who dares to complain (or even videotape them).
The best thing I have encountered on Prism is security expert Steve Gibson’s podcast 408 which really clarifies exactly what Prism was probably doing. It is available on twit.tv. He is a security expert and he has put older testimony together with the recent revelations to explain the facts we have. He makes your point about records not being protected and then goes on to explain why the companies like Google who are saying that they have not given the NSA access to their servers are probably telling the truth…and why that doesn’t matter. While based on carefully cited records it is still somewhat speculative, but until disproven sounds like what they are probably doing to read and record a large portion of everything. This definitely should be part of the conversation and I don’t think the MSM has the tech savvy to understand it and probably not the will to get to the bottom of it.
If it’s true that mosques have been excluded from FBI surveillance since 2011, I certainly do not trust the admin’s motives for collecting records.
IIRC, I’ve seen accounts that some congress critters and exec branch people have said that they don’t consider the constitutionality of any given law, but rather leave it up to the SC. This makes O’s statement ridiculous on the surface.
And the accounts certainly mesh with reality.
I’ve long had a problem with stare decisis. I understand the reasoning behind it, but it can lead to disastrous decisions. Like Thomas, I am an original intent believer. (Yes, there are problems with that approach too.) But, had the Founders known about the potential technology, what would they have said about phone records? The implications of the meta-data analysis are staggering.
We’re closer to ‘1984’ than we are to 1776.
JuliB:
As I wrote, if the case comes before SCOTUS they’re free to extend the Fourth to include records of phone calls. But that would be a break with precedent, and until that happens, it’s constitutional.
A different question is whether it’s a good thing, and/or whether it should be allowed.
And as McCarthy points out, if getting phone records without a warrant is unconstitutional, regular law enforcement (not just the war on terror, but much regular police work) will have its hands tied more than most people would probably want.
The question was about constitutionality.
I have a question as to legality.
If Sensenbrenner says they have been exceeding the Patriot Act (and he wrote it) then the program is operating on the informed consent of some senior congresscritters who may feel it’s a good idea with no concern for legality.
And no one else would know.
The essence of Progressivism is “Trust Us” (as George Will pointed out elsewhere today).
I agree. And that essence is inherently anti-Constitutional.
I agree with Ace. The NSA record gathering may be overreach but with the good intention (though possibly bad outcomes) of protecting us. This is not a case like the IRS abusing its power, the Benghazi cover up, or the lies told to Congress by Eric Holder and James Clapper. Those actions that represent malfeasance in office and need to be thoroughly investigated along with corrective actions applied – including firing, criminal prosecution where it applies, and even impeachment. We shouldn’t let the NSA revelations distract us from more important issues.
It all ties in together. Government is NOT a monolithic entity, it is composed of people, fallible, egotistic, sometimes corrupt or corruptible. Many don’t have high standards of duty or honor, and do have a sense that their ideas are the only ones that count. So far, what we have seen of oversight does not lead to confidence that people who want to transgress and use available government powers for private purposes will be held accountable. We have seen the Attorney General of the US admit that he lied to get a warrant – how often does that happen? We have seen that the FISA judges rarely see an application for warrant that they don’t like. We have seen that our elected Representatives tasked with oversight often fall into the tank with snoopers ‘for the greater good” or embarrassingly fail to recognize the increased abilities of technology. The only hope I have is in the double-take done by members of Congress when AG Holder refused to confirm that he had not spied on them…..
Lizzy,
good post.
Lizzy & fiona,
Thank you for focusing on the real problem. It is an old problem and this is why (metaphorically I hope) the tree must be refreshed with blood from time to time. The original concept was to limit the power/purview of government in order to limit the ability of the employees of government to cause harm through acts of corruption or the lust for power. The idea that people grant certain powers to government has been reversed; government is now the grantor. The idea was that those who hold office were our employees; we (those of us who actually earn income) are now their employees. The pyramid has been inverted. Gravity dictates that it will eventually fall over if it is not settled on a stable foundation.
Rather than such a dragnet approach covering all U.S. citizens it seems to me that, if they weren’t slaves to the Left’s multi-culturalism and political correctness, our intelligence services could do a much better job and infringe much less on the privacy of the great mass of average citizens, if they focused on the group who are by far the ones most likely to be involved in threatening and/or attempting/carrying out terrorist acts i.e on Muslims.
This apparently novel approach would, of course, also have the added benefit of bringing to bear the majority of our assets on the relatively small numbers of people who are real threats, rather than diluting them by applying our limited resources and manpower against vast numbers of those very likely innocent. But, I am sure that, to a man, all of the Muslim “leaders” and “spokesmen” from CAIR and other Muslim groups which this administration have invited into the counsels of government–to give our government, intelligence, and military organizations their, no doubt, sage advice–have said that such “Islampophobia” must not be allowed.
However, that aspect aside, cynical ol’ me can’t help wondering if such nonsensical, wholesale scooping up of information, divulging practically all of the entire life of every American, isn’t being undertaken not so much to catch terrorists as it is being done to give what Michael Barone has called Obama’s “gangster government” or its successors ammunition useful to intimidate, coerce, or destroy those it believes to be its enemies among our citizenry. And just think how much more personal information will pour in when medical records are digitized and put into a single government database as part of Obamacare; all for our “convenience,” of course.
P.S.–I see some saying that it’s just “metadata” being scooped up, not content, but consider this example; you get a call from your doctor, within an hour or so you call an oncologist, then shortly after you place a call to your closest relatives. Do we really need to hear these call’s contents to understand that you have likely just been diagnosed with Cancer?
McCarthy is, of course, correct.
But nobody likes a snoop, so that even if McCarthy is correct in pointing to the lack of a constitutional protection from snooping, his tone is wrong (eg, Rand is self-styled libertarian . . . outraged by reports.). Tone can tell you a lot, and McCarthy’s tone makes me wonder if something more personal is involved.
But even more importantly, McCarthy misses the point: He doesn’t provide a remedy for the abuse of the present system. We know Obama has downloaded the whole of the snooping effort into his personal and never ending campaign vehicle, the OFA (Organizing for Action). We don’t trust Obama. We don’t trust the Courts. And we don’t trust Congress. So yeah, we’ve got a big problem, President Obama!
Further, most of us are convinced the snooping has little value in preventing terrorism.
So, now, how do we keep the crime fighting aspect while reducing the blind snooper. Let Senator Rand become better educated and conversant with the available remedy, but his disorganized and blatant misreading of the Constitution doesn’t me he is correct in noting the chilling effect on liberty and freedom, which may be just the precursor to a totalitarian gov’t.
Lizzy – well said.
The NSA’s new slogan: In order to secure your freedoms, we first have to destroy them.
Phone call metadata is not content.
NSA collection of metadata is IMO, Constitutional.
To get the content of phone calls, a warrant must be issued.
Metadata can easily be put to unconstitutional uses. All we have to support the contention that it is NOT being put to unconstitutional uses is the trustworthiness of Barrack Obama.
That’s the heart of the phone record metadata issue.
The ‘PRISM’ and ‘Boundless Informant’ programs do provide CONTENT sent over the internet. That on the face of it is IMO unconstitutional.
They can always get the content by hacking the mails. Palin’s account was easily hacked by Democrat amateurs and she was the Governor of Alaska at the time. All sorts of dirty secrets could be used to suborn, analyze, and blackmail politicians. The Democrat party has entire vaults of these secrets hidden somewhere.
But few people are so clean that not even hacking their private information will let you see the “skeletons”. Those people were recognized rightly as threats to the status quo of DC’s ruling class.
People who don’t do wrong, when put into positions of power, don’t tend to be corruptible or easily convinced to let things “slide by”.
I believe Bush did his best to make the NSA wiretapping systems directly useful in safeguarding America (no successful terrorist attacks and a lot of successful captures of cells, which even I back then were surprised at, given the FBI’s notorious history of…). But like all systems of government, when the previous guy leaves, the new guy takes charge. Those who didn’t know what was going behind the scenes, are easily led to believe that the change in leadership is meaningless. Meet the new manager, same as the old one.
Rarely is the case that would be so. Even evil and government has its flavors.
Leaders are ephemeral and mortal, while bureaucracies don’t die that easily.
Snowden said in the video, which wasn’t filtered as much as listening to Greenwald would be, said that he didn’t want to wait for leaders to do things any more since Obama obviously betrayed his expectations. Yet most Americans don’t think like that. They are still waiting for a leader, a savior, to tell them what to do.
Thinking for themselves, a prerequisite to liberty, isn’t quite up there yet.
A couple of thoughts, but no conclusions:
Is it possible that the US metadata helps provide dots that allow the NSA to determine a “normal” range of behaviour, which helps find dangerous outliers?
Snowden has provided foreign countries with propaganda material they will milk forever. And the people abroad will have little ability to question what they hear. Even in Germany, there will be an election in which Merkel will be attacked for any cooperation with the US. The attackers will include the neo-commie Left party, the Greens, the Social Democrats, and some within the coalition Free Democrats. Does anyone really believe that the genius Snowden really had insight into the foreign policy effects of his acts? I’d send the jerk to Camp 14 if only we could get little Kim to grant him asylum.
Ron Paul, according to Newsmax, is now saying that the gov’t will kill Snowden. Is this jerk missing being in the limelight?
Is Rand Paul just using this to ensure that he keeps daddy’s base? The more I hear this guy the more skeptical I become.
http://news.investors.com/ibd-editorials/061213-659753-all-intrusive-obama-terror-dragnet-excludes-mosques.htm
Are we still using petro dollars?
We need to amend the Constitution to address telephony in the digital age.
Metadata is exactly what a tyrant wants most.
If Stalin or Hitler had this capability they could’ve scaled back their blood work.
With it, it’s short work to disrupt the opposition, you won’t even need confessions.
It’s plain on the evidence that this Chicago on the Potomac regime stole the election and crawling through the meta data was a game changer for Buraq.
For some crazy reason, the pundits speak and reason as if they’ve got all the facts in hand.
AS IF.
The ONLY thing that we know all about is Barry’s character — and what a ruthless bully he is.
He is NOT a self-limiting personality. He has a lot more in common with the absolute worst tyrants of history — starting with his self-conception that history was waiting for him to arrive to really fix things — like getting the oceans to recede.(!)
Folks, when it comes to obeying the law: Stalin and Hitler obeyed the law! They just happened to be the players who wrote and rewrote the law to suit. Hitler even took the legal trouble to re-define Jews as non-people. That was a new one. It also showed that being a stickler for the law didn’t stop him from genocide.
Most readers might assume that the Weimar Republic died when the Nazis took over. It didn’t. It was extinguished May 8, 1945. The Nazi era functioned under the laws of the Weimar Republic.(!) Hitler just kept stacking on the laws and the police to suit — and had the courts redefine this or that to obviate nasty restrictions on his executive authority.
The Wan has — astonishingly — mimicked this template without a general outcry.
He IS ruling the nation without Congress.
Laws he doesn’t like he refuses to enforce.
Laws that don’t exist become mandates under his pen — and that of his minions.
He’s got to be impeached and convicted — before there’s no turning back. He’s corrupting the vote, the vote counting, and any opposition to what is now, essentially, one-man rule.
What’s paralyzing the nation is the Senate. Like the Roman senate thousands of years ago, they’re dithering while their entire political purpose is being eroded away.
His other template is Hugo Chavez. Look to see Barry scheme a way to never leave office.
And like Hugo, figure on Barry to leave the nation’s finances a horrific mess.
America is the World’s ‘financial turtle’ — the last turtle — and when Barry destroys the US Dollar — he will unleash damage so epic that the 20th Century will be regarded as merely a warm up to the the global tragedy.
Neo – I’m not disagreeing with you about the possible constitutionality of it, but rather commenting on O’s “o make sure that we’re abiding by the Constitution, due process and rule of law ” when it’s been stated that OVERALL – none of them really care. In other words, if it’s bad, let the SC handle it.
Not in a million years do I think that the Exec Branch is worrying whether what they do is constitutional, and it goes beyond this latest scandal. And except for a few Congresscritters do I think any of those people give a rat’s ass.
And after the convoluted and twisted reasoning coming out of the majority SC opinion on Obamacare, in which Roberts probably still has some sore muscles, my faith in the SC is damaged as well.
If I were a LIV, I would be very shocked by this recent leak in view of the IRS scandal. Since I’m not a LIV, while I am dismayed, I am not surprised.
I think TPTB ought to focus on the real enemy – islamic fanatics, and realize that freedom loving conservatives are not the enemy. I suppose the confluence of these scandals are pushing me into sheer disgust.
“Snowden has provided foreign countries with propaganda material they will milk forever.”
Propaganda is always a two-edged sword. Much of the criticism America receives is because people both domestic and foreign expect better from America. Disappointment fuels criticism as much as ideological opposition. The world isn’t surprised that the American government is spying upon its citizens, that is, for the great majority of the world, the norm. Nor is the world surprised that an American would ‘revolt’ (whatever his personal motivation*) and expose the spying.
* [I’m] “neither a traitor nor hero. I’m an American.” “People who think I made a mistake in picking Hong Kong as a location misunderstand my intentions,” the newspaper quoted him as saying. “I am not here to hide from justice; I am here to reveal criminality.” Edward Snowden
blert-What’s paralyzing the nation is the Senate, agreed. But the same Senate will NEVER convict a House-impeached Obama.
Impeachment is no answer.
“Does anyone really believe that the genius Snowden really had insight into the foreign policy effects of his acts? I’d send the jerk to Camp 14 if only we could get little Kim to grant him asylum.”
Since people can’t get rid of Obama, they want to get rid of Snowden?
I’ll give Snowden the same time period benefit of doubt people told me to give to Obama. Which I, along with others, actually did. Albeit for different reasons. 1-2 years is the period of benefit of the doubt.
Those who didn’t start thinking Obama was evil until like… maybe now, have no reason, other than their own powerlessness, to start making snap judgments about Snowden.
After all, it’s not like all the information they were given on Nixon was from open sources. They didn’t know who it came from or what the motivations it was. Yet people repeat that stuff like it’s Holy Writ.
A couple of thoughts.
To JJ, the mis-named Progressives always act with good intentions. Just ask them. Whether it is limiting the size of soft drinks, or spying on our emails. To hell with their good intentions. What is good to them is often not good to the target of the action; and frequently not good to bystanders who realize that they may become the next target.
Regarding updating the 4th amendment; why? Search without probable cause is an illegal search. I think we went through this discussion with automobiles. There is no open ended right to search an automobile. I suggest to those who think that phone and email communication is somehow different, substitute Snail mail. Do you believe that the government has the right to read the mail you send through the USPS–or even to maintain a data base of who you correspond with? I didn’t think so.
We let smoke and mirrors obscure fundamental truths. Just because technology becomes available that does not provide a license to use it willy nilly.
Don Carlos,
Never say never. Almost impossible, yes.
The only thing that would bring the Senate to impeach Obama would be if they were forced to conclude, that beyond any doubt whatsoever, the very survival of the democrat party was at stake.
In such a case, they would throw Obama under the bus as quickly as he has done others. Just as there is no honor among thieves, there is no loyalty among ideologues because their only loyalty is to themselves and to their ideology.
Ymarsakar,
I certainly never trusted Obama. That has nothing to do with my take on Snowden. I do think that both are narcissists, and that blocks both from seeing the world as it is.
You know, I don’t trust Obama much, if at all, as far as politics is concerned, and the IRS revelations certainly stink to high heaven, but when it comes to matters of domestic security I do, if for no other reason that than he’s a father with two daughters he loves and would do anything to protect. In this, he’s in the same boat as all the rest of us.
I also keep thinking about Israel in this discussion. Israelis are highly political — things get mighty hot at times in the Knesset. But they all know that security is the first and foremost thing for them. And I’m pretty sure they are wiretapped, etc., six ways to Sunday, but they live with it and have to trust their elected leaders to do it right. It’s called dealing with reality. Doesn’t mean their democracy is a sham. Like us, they’ve put oversight mechanisms in place. That’s how democracies operate — constant tweaking, not by putting unalterable systems in place for the ages.
Expat, that’s an interesting analysis of Snowden’s psychological profile. But were your sources before 2012 or after? Because I would guess most people’s sources about Snowden came from other people after 2012, that were mostly contaminated one way or another. Meaning, too interconnected to be independently verified.
Neo,
I have a lot of questions.
So what the courts have ruled is that a person’s activities, associations, and so on are public record and information that is recorded about those activities, associations, purchases, habits, favorite foods, and a thousand other things the person does are not something an individual has a right to keep private from the government? But for example conversations a person has with another person is protected?
I’m trying to wrap my head around the idea that a phone or email record and all the information that can be obtained from it (besides content) is somehow the property of the government by default. The records themselves are information, as everyone has pointed out. But the way it’s obtained is the issue. If we concede all records are the property of the company who provide the service, and the customer has no legal ownership of the records, why do McCarthy and the courts hold the legal opinion the records belong to the goverment too, or can be seized for the asking, without the usual processes for a warrant? It seems that because the records aren’t content or generated by the customer, the property — record, is less protected as property that requires the usual warrant process — there’s no need to show probable cause because it’s harmless. So what’s being implied is the type of property being seized is negotiable when it comes to legality?
Can the customer pay the service provider to destroy his records? In effect, pay for that service? And if he did, would the goverment have the legal right to prevent such a service?
What is the legal basis which the courts apply that grant the government blanket approval to seize property, (as McCarthy calls it), and not need a specific warrant for each record, as they would if the technology did not facillitate the wholesale storage?
I’m asking because I don’t understand, not to be snarky or imply anything else.
Jeez, you’ve given me a lot not to think about, Ann.
I’m just gonna recall my most favorite post ever: You got me a cat!
“when it comes to matters of domestic security I do, if for no other reason that than he’s a father with two daughters he loves and would do anything to protect. In this, he’s in the same boat as all the rest of us.”
At first glance that seems like a valid and substantive point. As well as a narcissist can, I expect Obama does love his family.
That’s at odds however with his consistent, pervasive downplaying of the threat from Islam. From Maj. Hassan to the Boston bombings and with his eviscerating of any reference whatsoever to Islamic terrorism throughout the government agencies charged with protecting the American public…he doesn’t act like a man concerned with fighting terrorism. Quite frankly, I think his ideology causes him to discount any possible danger to his daughters, or anyone else’s.
“Like us, they’ve put oversight mechanisms in place. That’s how democracies operate –”
Normally yes. But that presupposes a degree of loyalty to the democracy from those charged with oversight. Anyone asserting that the current democratic party leadership (and many RINO’s) puts loyalty to country ahead of ideology and/or personal self-interest is in denial of the massive amount of evidence that loyalty to country at best, rates a distant second .
Ymarsakar,
It’s true that the descriptions of Snowden come from recent accounts, but they certainly fit the pattern of a young person who thinks he knows everything. He is simply a different version of Bill Ayers, the OWS gang, and PETA activists. Has he ever read anything about China? I doubt it.
blert Says:
June 13th, 2013 at 4:45 pm
Great comment.
An awful lot of people are whistling past the graveyard, but Obama already ranks among the worst monsters of history. He’s just getting warmed up.
He is wrecking the capitalist economy, and forcing more and more people to become dependent on the government.
He is poisoning race relations to a degree that hasn’t been seen since the early 1960s.
He is splitting America into competing interest groups, and destroying trust between groups. Trust is an essential component of a civilized society.
He is gutting the military, and instilling politically correct ideology in place of unit cohesion. Our forces in Afghanistan are being ground down by restrictive rules of engagement. He has made it clear that he does not seek victory. Meanwhile he committed forces to Libya, and it looks like he will get us involved in Syria as well. This has almost no support among the American people. His foreign policy is bringing the Muslim Brotherhood to power across the Middle East. It may yet bring us to a face-to-face confrontation with Russia.
His goal is nothing less than the utter destruction of the United States of America. He is well on the way, but we haven’t yet seen the endgame. I don’t know exactly how it will play out, but we are closer than we think.
Do you really believe content is protected?
After the revelations about the IRS?
And all the other examples where government does whatever it wants to gain power (over us – which is the only power it really has)?
C’mon. Let’s be real.
Mike:
I’m not sure who you’re addressing when you write, “Do you really believe content is protected?” But in case it’s me, here’s my answer.
That’s not the question this post addresses. In it, I’m making a distinction between the idea that a law is unconstitutional versus all the other reasons it might be a very bad idea and something that should be stopped, and yet at the same time constitutional.
As I believe I wrote in the post, the accessing of content would be illegal under this law, and it the law allowed accessing of content without a warrant it would be unconstitutional. But it does not allow it.
You are asking a separate question: do I believe the government accesses content without a warrant anyway, even though the law forbids it? It certainly might be doing that now or in the future, and if that’s done without a warrant, it’s a violation.
People were very angry after 9/11 when they realized the government didn’t connect the dots and figure out what was going on in time to have prevented it. The Patriot Act was an effort to make data collection on terrorists more coordinated and effective, but many people were alarmed at the intrusions on our civil liberties they felt it represents, because of the potential for abuse. And it’s particularly difficult to trust the Obama administration to not abuse those powers to invade people’s privacy, because of its track record on so many other matters.
southpaw:
I don’t have an answer to all your questions.
But the basic court rulings on the issue rest on the Fourth Amendment, as stated in the post, but also on whether a person has a reasonable “expectation of privacy” about certain records. Since phone logs are already not private (i.e. they are held by the phone company) they are considered to have much less of an expectation of privacy. See this 1979 case:
That’s the sort of reasoning involved.
Many other answers can be found here, a veritable font of information. A lot of it hinges on the difference between a subpoena and a warrant (the government can’t just take the information without either, but a subpoena has to meet a much lower standard than the warrant). Here are some relevant quotes:
You might want to read the whole thing if you’re interested. It’s very technical, but it might help you understand better the reasoning involved.
What a person does and when he does it is clearly property of that person and therefore protected by the Bill of Rights from seizure. Just because the government says it isn’t–and the Supreme Court is part of the government–doesn’t mean it isn’t. The founding fathers were trying to protect us from government’s natural inclination to stomp on civil liberties. The Supreme Court ruling for a narrow interpretation of the Bill of Rights is no different than Congress passing a law limiting those Rights. The Kelo case should have been a wake up call to all of us who think for someone reason that the Supreme Court is going to protect our individual rights and is not a mere extent ion of the government that our forefathers warned us about.
I want to add a comment about the “expectation of privacy” standard mentioned above that was promulgated by the Supreme Court. It is a canard intended to eventually strip us of any 4th Amendment protection. Eventually, the Court will hold that no one has a reasonable expectation of privacy in anything because the government has the ability to spy on anything and therefore the government is entitled to seize anything. The Amendment is clear. The government shouldn’t be seizing, collecting, compiling anyone’s information except by warrant procured upon a showing of probable cause.
“I suggest to those who think that phone and email communication is somehow different, substitute Snail mail. Do you believe that the government has the right to read the mail you send through the USPS—or even to maintain a data base of who you correspond with? I didn’t think so.”
Oldflyer, I made this same analogy several threads back and some considered this a bad analogy and decided that it was fine for the government to snoop as long as their goon squads did not read the actual content of your snail mail and only entered the addresses into a database. Like you, I know that government that will collect addresses without a specific warrant will also scan the contents without a specific warrant showing probable cause. Its simply the nature of the beast.
“The natural progress of things is for liberty to yield and government to gain ground.” (TJ) This is the natural state of human affairs. It is precisely why government must be kept within the chains of the Constitution. Otherwise, tyranny arises and it gets messy, bloody, and deadly.
“All we have to support the contention that it is NOT being put to unconstitutional uses is the trustworthiness of Barrack Obama.”
I have a bridge in Chicago….. 😉
“.. if for no other reason that than he’s a father with two daughters he loves and would do anything to protect. In this, he’s in the same boat as all the rest of us.”
Does this answer fit for why his daughters attend a private, well armed and guarded school instead of a public school? Same boat, gimme a break.
“Since phone logs are already not private (i.e. they are held by the phone company) they are considered to have much less of an expectation of privacy.”
Snail mail records are held by the USPS and thus have much less of an expectation of privacy?
A phone log is to “papers and” per the 4th as an AR15 is to “arms” per the 2nd.
The tides and times of technology do no abrogate the fourth
.
I posted early on this thread about Steve Gibson’s podcast about the Prism program trying to point to the elephant in the cloud chamber around data versus metadata. No one appears to have followed the link so I will spell it out. The NSA has almost certainly been tapping the optical fiber cables just upstream of major Internet firms like Google, Yahoo, and Microsoft since at least 2006. They split the light on the optical fiber taking a copy of everything and the rest of the signal goes thorough to its intended destination. Splitting light = Prism. They keep a copy of everything. And here is where it is relevant to this discussion – they take it off the PUBLIC Internet. Is it like a cop overhearing a criminal plot in a bar or is it like a cop steaming a letter open without a warrant? Most tech savvy people know that their expectation of privacy is on uncertain ground here. As a matter of principle I feel my email should have the same protection as my snail mail. As a matter of technical knowledge I know email is like a post card that can be read by every postal employee so inclined along the way.
Thx Neo. Interesting and sort of twisted but that’s an opinion.
Somewhere in a cave in Afghanistan, a terrorist is writing a paper letter to a David Jones in England, who reads it, and then writes to a John Smith at a P.O. Box in Iowa.
Don’t you wonder if real terrorists wouldn’t be clever enough to communicate in ways that aren’t easily detected?
And also why we’ve not been treated to a litany of bragging by Obama everytime a plot was thwarted? Although it’s not their style, they wouldnt have to divulge how they caught them. The MSM wouldnt ask, and the tendency of this administration has been to make sure the public knows about every heroic deed the Mastermind has performed.
Southpaw…
They do exactly that — hand carried snail mail and video.
In the specific case of casa bin Laden — no land lines entered the goated prison whatsoever.
The idea that phone company records are not subject the guarantees of the 4th amendment is just absurd. If I’m reading things correctly, all of the cases presented as showing/stating that the 4th does *not* apply just show that the phone company customer isn’t provided any protection. The records in question belong to the phone company and, absent *voluntary* disclosure by the phone company or a warrant, should not be viewable by the government.
bob r:
They are “viewable” only by subpoena, which supposedly acknowledges the fact that they are not completely public. A subpoena allows something to be accessed with less probable cause than required with a warrant. Content requires a warrant. But it’s not as though phone logs are regarded as completely public and accessible by anyone.
The problem with the NSA phone log access is that, with the Patriot Act and FISA, the FISA court signed off on the subpoena for all the phone log records. And it has apparently been doing this sort of automatically, for years. It’s not that the records are considered completely public; they are considered more public than phone or email content, though, and therefore authorities have a lesser standard to meet to get the logs released to them for storage.
I also have not gotten clarification yet on another question: are the phone laws supposedly “viewable” by the government? It’s my impression that the government is only supposed to store them, and then later on if a person comes under suspicion of terrorism they must go for a warrant to “view” them or access content. I’m not 100% sure that’s the way the law reads, but I think it is. If so, the next question is whether government abides by those rules or not, and how easy it would be to circumvent them.
Neo…
The general public was never told — and even many historians are still unaware — but the US Government tapped into phone conversations prior to Pearl Harbor.
Because of their provenance, these juicy intercepts were never admissible under law. Instead, the authorities used them entirely to go after enemy alien spies and seditious first generation Americans.
These intercepts are part of the untold pieces to the Japanese internment policy. The American recording technology of the day was lousy, magnetic tape was a German invention; but enough was recorded to demonstrate seditious intent on the part of countless Japanese-Americans.
They even had fellows pledging to join the war production team — to sabotage same — with specific references to aircraft production.(!)
The net effect of the Japanese internment policy was to put 500 miles between any Japanese American and our critical factories.
==========
What get’s my goat is the injection of software backdoors all over the digital landscape — as if these won’t swing open for criminals, too.
And, of course, the NSA is sure to be hacked — as Ames and Hanson show.
@Neo: “As I believe I wrote in the post, the accessing of content would be illegal under this law, and it the law allowed accessing of content without a warrant it would be unconstitutional. But it does not allow it.”
I am saying that there is no “law”. There is no “Constitution”…anymore.
Obama and Liberals are Laws unto Themselves. They do what they want, whenever they want to. The naivete is in thinking that we are in any sense a law-abiding and Constitutionally governed people at this point. We are not. Chief Justice (ha ha) John Roberts tore up the whole idea of our Republic last summer in his Obamacare so-called opinion where he essentially said that “Words mean whatever we elites want them to mean and laws are whatever I/We say they are so shut up all you people and behave.”
He took our Constitution away from us and confirmed that it is truly an ancient document…so many marks on an old piece of paper.
He is just Obama and all Dems but in a different branch of the politburo, and I don’t care what his former resume says he is.
Content? Legality? Constitution? See Sharyl Atkinson for the current relevance of those terms. And she has clout and standing! The rest of us? Serfs. Bees in the beehive. That’s all.
As far as they are concerned that is.
Now, if WE want our Constitution back, we will have to reverse the tyranny ion the usual way or it won’t get done.
We will never do that as long as we will not name the thing.
Mike:
I get the impression you are misunderstanding what I’ve written here and the points I’ve tried to make.
I am explaining the difference between something being constitutional, being illegal, and being a bad idea. This has nothing to do with whether those things that you mention (the Constitution, the law) are currently being respected, enforced, or abused.
Of course there is a Constitution, and there are laws. Whether either the Constitution or the law is being followed or respected or interpreted properly these days are separate issues from what the Constitution actually says about something, and how it has traditionally (for many years prior to Obama) been interpreted by the courts. In this post, I’ve attempted to explain all these distinctions.
I agree with you that Obama has gone around the law in many circumstances, and the fear is that he and his people will also flaunt the law (the one restricting access to storing logs rather than accessing content, for example). He will also try to change the law’s interpretation by the courts by appointing the most liberal judges possible (but in that latter case, what he would be doing would be lawful).