The Real Scandal: Not That The NSA Broke The Law In Vast Spying, But That It Probably Didn't

from the the-law-is-broken dept

There's a good point being raised by a bunch of people lately in reaction to the details of the NSA surveillance revelations from last week. A number of the program's defenders, including those in Congress and the White House (all the way up to Obama) have defended the program as being legal. And, technically, they may be right. Thanks to a combination of questionable legal rulings and then Congress passing bad and dangerous laws over the past few decades, many of these practices likely are "legal." And thus, the real scandal here may not be that this data collection was happening in the first place, but that it was legal too.
As much as one might be personally appalled by the notion of the NSA collecting everybody's call records, disgust doesn't make something unconstitutional. Rather, the real scandal here is what's legal -- namely, how the surveillance powers enabled by modern technology have been embraced and expanded by Congress and a succession of presidents, and how the Court has failed to develop a robust system for applying the Fourth Amendment meaningfully to the questions of the 21st century.
This is why many of us have been trying to call attention to things like warrantless wiretapping and the FISA Amendments Act and the privacy-destroying immunities of CISPA for years. Because those in power keeping screaming "terrorists!" to get Congress to pass these laws, and then everyone's shocked (shocked!) when the government goes and does what Congress and the courts have specifically allowed.

The article above points to the infamous Smith v. Maryland case, which among other things established the ridiculous third party doctrine, which we've decried for years. This ruling said that by "giving" data (such as phone numbers) to a "third party" (such as a phone company) you had given up any expectation of privacy in that data. That ruling was made in 1979, but is now used to suggest you've given up an expectation of privacy in lots of data you give to online services. That needs to go. But, at the same time, Congress is equally guilty of regularly approving massive expansions of the law that enables all of this kind of surveillance.

The "good news" in all of this (if there is any good news) is that if it's true that everything that was done didn't actually violate the law, then we just need to fix the laws, and that may actually be an easier problem to solve (though, by no means easy) than dealing with what to do if laws were broken.
In a weird twist, the best-case scenario is that the NSA's surveillance programs are legal -- or, at least, that the NSA believes that they are. The administration has certainly expanded its powers to fill every crack available, but it seems not to have broken any bricks, hewing assiduously to the letter of the law (as far as we know). It may be of small comfort, but overly broad laws are an easier problem to solve than that of a government that does whatever it wants, regardless. Let's hope that that is not what we have.
Of course, for that to happen, we'd have to have some faith that Congress will actually do it's job. And that's such a laughable thought that I almost couldn't complete that sentence.


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    Rikuo (profile), Jun 10th, 2013 @ 2:12am

    This brings to mind a line of dialog from early on in Star Wars The Phantom Menace. The Trade Federation guys are talking to their secret boss by hologram about their illegal invasion of Naboo. Their boss's response?
    "Then I will make it legal".
    Given how Darth Sidious is portrayed, it is very likely that in the Star Wars universe, if he had actually wanted to, he would have been able to manipulate the Galactic Senate into making an invasion by armed forces over a silly tax dispute completely legal.

    So Obama...ball's in your court now. Do you want to be remembered as being the President who completely shredded the Constitution? Do you want to be known as a real-life Palpatine?

     

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      RyanNerd (profile), Jun 10th, 2013 @ 4:42am

      Re:

      Since you speak of fictional characters apparently:
      TMNT -> Obama = Shredder

       

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        Rikuo (profile), Jun 10th, 2013 @ 4:43am

        Re: Re:

        Haven't watched those turtles cartoons since I was a kid. What's Shredder like? All I remember is he's the bad guy, a ninja. Is he also a political manipulator like Sidious?

         

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      Bengie, Jun 10th, 2013 @ 5:26am

      Re:

      He already has shredded the Constitution with all of his decisions. He doesn't have enough time in his 8 year limit to event attempt to fix his mistakes.

      In a way, he is worse than Bush. Bush was kind-of testing new waters and everyone said "no". So Obama came along and said "I'm different than Bush, vote for change". What did we get? He extended and made worse many of the things Bush was doing.

       

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        Anonymous Coward, Jun 10th, 2013 @ 5:35am

        Re: Re:

        Still in denial I see.
        You might catch on eventually.

         

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        That Anonymous Coward (profile), Jun 10th, 2013 @ 5:41am

        Re: Re:

        Because he totes did this on his own, and the whole Congressional oversight of this program portion is just made up.

        Or maybe you have a bunch of old scared men sold the idea this would keep people safe, and they keep it going because to stand against it gets public opinion turned on them.

         

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          Anonymous Coward, Jun 10th, 2013 @ 6:49am

          Re: Re: Re:

          I think it runs very deep. The old scared men in congress are convinced that NSA is the absolute only interessant on this subject and giving them what they want will keep the other party from screaming Benghazi!

          Not supporting it is seen as impossible to defend since "public" is worth so little money for each person you convince and cutting spending will cost you money and/or bad press.

          To me it seems USA is setting the standards of paranoia extremely high after 9/11 2001. That is both on Bush for introducing the paranoid 1984 surveillance-standards and on Obama for keeping, broadening and refining them. EU has been dragged pretty forcefully to accept many of the US demands on account of reducing cross-atlantic tension. Maybe we can now, get a bit more of a bilateral negotiation?

           

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            Jay (profile), Jun 10th, 2013 @ 5:12pm

            Re: Re: Re: Re:

            To me it seems USA is setting the standards of paranoia extremely high after 9/11 2001.

            That was the catalyst. This entire issue of overwrought security has been in place since Truman. Nixon helped create the events that have given us a secretive government which looks out for itself instead of the people.

            This is essentially 40 years of people being trained in secrecy, media manipulation, and backroom dealing that makes WWI look quaint.

             

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      John Small, Jun 10th, 2013 @ 12:48pm

      Re:

      Seems to me that GWB was the "real-life Palpatine" in this case, since all this started during his administration.

       

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        Niall (profile), Jun 11th, 2013 @ 2:58am

        Re: Re:

        I'm sorry, you can't even remotely compare Bush to Palpatine - Palpatine was shrewd and planned ahead and intelligent and dangerous - and His Holy Shrubbiness was only the last of those. To do so is to insult Palpatine's intelligence.

        The only thing Bush had going for him was a lack of malevolence - that was happily supplied by Darth Cheney and Darth Rumsfeld, neither of whom showed any ability to plot further than their own immediate enrichment anyway.

        Palpatine was master of the Xanatos gambit. Cheney and Rumsfeld were just nightmare fuel.

         

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      Jesse (profile), Jun 10th, 2013 @ 7:04pm

      Re:

      I'm going to invoke Godwin's Law and say that, similarly, pretty much everything the Nazis did was legal in their eyes.

       

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    Anonymous Coward, Jun 10th, 2013 @ 4:36am

    Greenwald

    Just caught Glenn Greenwald on NBC's Today Show, within the past hour. Was walking through the room when they started a segment on Snowden, so stopped and watched.

    Probably be a video clip somewhere on the 'net pretty quick. Although it doesn't look like Google has indexed anything yet—either on the web or in video search.

     

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    Anonymous Coward, Jun 10th, 2013 @ 4:43am

    United States v Jones

    People (and courts) are still sorting out the implications from the Supreme Court's fractured opinions in United States v Jones.

    Nose-counting justices, some people say they see five coming in on the mosaic.

     

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    RyanNerd (profile), Jun 10th, 2013 @ 4:59am

    Legal or not legal the hypocrisy is sickening

    Not only is it a sickening tragedy that the NSA may have been working within a legal framework, but their blatant hypocrisy also sickens me:

    The current director of the NSA General Keith Alexander...asked if the Utah Data Center would hold the data of American citizens, Alexander said, "No...we don't hold data on U.S. citizens," adding that the NSA staff "take protecting your civil liberties and privacy as the most important thing that they do, and securing this nation."

     

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      John Fenderson (profile), Jun 10th, 2013 @ 9:00am

      Re: Legal or not legal the hypocrisy is sickening

      That's not hypocrisy. That's outright lying.

       

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        art guerrilla (profile), Jun 10th, 2013 @ 5:03pm

        Re: Re: Legal or not legal the hypocrisy is sickening

        Stop right there, citizen!

        You have no right nor legal claim in disputing the indisputable: a Public Official made an Approved Pronouncement, therefore, said Pronouncement is, by definition, True True.

        Your disputatious attitude in contradicting the self-evident truths of Empire are hereby in conflict with the means and ends of Empire, which has been and always will be: the safety of its citizens and the primacy of kapitalist imperialism. (Not necessarily in that order. Or including both.)

        This will go on your permanent record, (ie, posted on Farcebook). Future outbreaks of disputing Empire's True True Truths shall be treated at the newly re-opened Guantanamo Re-Education and Tube Feeding Center.

        Citizen, keep your head down!
        OBEY ! ! !

         

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    Anonymous Coward, Jun 10th, 2013 @ 5:18am

    Anonymous speech in the legislative context

    I think the latest Supreme Court word on anonymous citizen speech in the legislative context is JOHN DOE #1 v REED (2010).

    The situation that the Supreme Court addressed in that case, though, is quite distinguishable from the burden the NSA call records collection places on citizens' communication with their elected representatives.

     

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    Anonymous Coward, Jun 10th, 2013 @ 5:20am

    Legal != ethical

     

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      Magill (profile), Jun 10th, 2013 @ 7:39am

      Re: Legal != Ethical

      People need to remember -- the "Law" is a "technical system." It is neither Moral nor Ethical. Such consideration have no place in "the letter of the law." Judges routinely instruct jurors to ignore "personal opinions" and to only believe what the Judge, and the Lawyers for the Defence or Prosecution tell them is true. It's called "Instructing the Jury."

       

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        Anonymous Anonymous Coward, Jun 10th, 2013 @ 7:53am

        Re: Re: Legal != Ethical

        I do not disagree with anything you say, but the question remains, is it right?

        Jury nullification comes to mind. While I think there are some rules about this, IANAL, it also seems to be a safety valve where immoral or unethical, either laws or prosecutions, may be halted.

        To that end, maybe there should be some 'societal' testing. Morals and ethics in general may be too ill defined for a large group of people to agree upon, so there must be some document that brings a sort of code to the people, and their representatives.

        Oh wait...The Bill of Rights! Too bad it does not appear to have the force of law.

         

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          Anonymous Coward, Jun 10th, 2013 @ 12:52pm

          Re: Re: Re: Legal != Ethical

          The problem with jury nullification is that if you even breathe those words, you will be dismissed from the jury. It's something that people need to be made aware of before they ever get a jury summons.

           

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            art guerrilla (profile), Jun 10th, 2013 @ 5:09pm

            Re: Re: Re: Re: Legal != Ethical

            uh huh...
            the fact of the matter is ,there is virtually *no* jury nullification for a couple reasons:

            1. *most* people are not even aware of the concept

            2. even if they *are*, it is pretty easy to be intimidated by The Process to believe that
            A. you don't have that right, and/or
            B. you better NOT exercise that 'theoretical' right, you anarcho-commie-fascist uppity 99%-er ! ! !

            3. no doubt, the judge will fuck with the juror and/or jury who dare to do such an independent action, and simply wave his magic robes and begone with such inconvenient decisions...

            just sayin'...
            cool in theory, hardly happens in practice...
            hell, they tied that old geezer up (new york?) in court for years over his *attempting* to educate jurors about jury nullification by handing out phamplets, etc...
            The They (tm) *hate* that shit...
            its a real threat...

            art guerrilla
            aka ann archy
            eof

             

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    out_of_the_blue, Jun 10th, 2013 @ 5:20am

    This is why so many keep pointing to GOOGLE.

    "warrantless wiretapping and the FISA Amendments Act and the privacy-destroying immunities of CISPA for years." -- CISPA is precisely to "legalize" what "commercial" Google is doing every day 24/7 against anyone who uses its "services".

    You CANNOT limit your argument to just gov't, can't dodge the actuality of Google by saying it doesn't "actually violate the law", that it can just do whatever the heck it wants in way of violating everyone's privacy, nor say the technology is "inevitable" so just quit fighting it. All of it feeds the same beast.


    Take a loopy tour of Techdirt.com! You always end up same place!
    http://techdirt.com/
    Where Mike's "no evidence of real harm" means he wants to let secretive mega-corporations continue to grow.
    01:19:58[b-362-4]

     

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      Anonymous Coward, Jun 10th, 2013 @ 5:30am

      Re: This is why so many keep pointing to GOOGLE.

      Apparently you have such a hardon for Google, you ignore others that may be worse, why is that?

       

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      Anonymous Coward, Jun 10th, 2013 @ 5:49am

      Re: This is why so many keep pointing to GOOGLE.

      God fucking dammit you thick skulled simpleton.

      You can stop Google from collecting data on you by using other services.

      You CANNOT stop the government from doing this because they own you.

      That is the difference and that is why, whatever Google may or may not be doing, the NSA is worse.

       

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        Anonymous Coward, Jun 10th, 2013 @ 8:05pm

        Re: Re: This is why so many keep pointing to GOOGLE.

        You can stop Google from collecting data on you by using other services.

        Really? Which ones are telling the NSA to pound salt?

         

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          Niall (profile), Jun 11th, 2013 @ 3:00am

          Re: Re: Re: This is why so many keep pointing to GOOGLE.

          He's obsessed with Google, forgetting the others are just as bad. We're just pointing out that people have a choice in which service they use.

           

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      Anonymous Coward, Jun 10th, 2013 @ 6:02am

      Re: This is why so many keep pointing to GOOGLE.

      Google use software analysis of data to decide what adverts to try and show you.
      The government uses software to decide whether to send armed men through your front door.
      Which one is most likely to kill you?

       

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      Rapnel (profile), Jun 10th, 2013 @ 8:46am

      Re: This is why so many keep pointing to GOOGLE.

      .. so much wrong, so little time.

       

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      Anonymous Coward, Jun 10th, 2013 @ 10:33am

      Re: This is why so many keep pointing to GOOGLE.

      I know, right? Just the other day I was reading about a guy who was linked to Microsoft sympathizers view hangouts logs. So a Google rendition squad burst out of one of their ubiquitous street view vans to disappear him. He was held without charges in their clandestine mountain view complex where they tortured him for months before finally releasing him in an eastern bloc country without a passport after his google+ account was deleted.

       

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      Anonymous Coward, Jun 10th, 2013 @ 12:55pm

      Re: This is why so many keep pointing to GOOGLE.

      "Apparently you have such a hardon for Google, you ignore others that may be worse, why is that?"

      "God fucking damnit you thick skulled simpleton."

      exactly!

       

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      Anonymous Coward, Jun 10th, 2013 @ 2:37pm

      Re: This is why so many keep pointing to GOOGLE.

      Now show me on this doll where Google touched you.

       

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    Anonymous Coward, Jun 10th, 2013 @ 5:23am

    just because something is 'legal', doesn't make it 'right'. as for the bit about Congress, they haven't got the balls, let alone the brains to do what needs to be done. before there can be any attempt, there needs to be a law brought in immediately that forces all those in Congress or similar high governmental positions, that have been elected by the people, to represent the people to reveal where any and all funding comes from that is used in backing or lobbying or even job offers. until politics itself is made a lot more open and honest, other drastically needed changes wont come in

     

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    Anonymous Coward, Jun 10th, 2013 @ 5:33am

    American Exceptionalism, isn't is a wonder to behold.

    If you see something, say something - unless it is about us, in that case STFU.

     

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    zerostar83 (profile), Jun 10th, 2013 @ 5:40am

    I told you so

    If only my high school past could travel to today and say "I told you this would happen with the Patriot Act"

     

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    Anonymous Coward, Jun 10th, 2013 @ 5:48am

    pls tell me again how using violence to overthrow this government is not the answer.

     

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      Josh in CharlotteNC (profile), Jun 10th, 2013 @ 6:48am

      Re:

      The government has all the tanks, missiles, fighter jets, etc. Even if you're well-armed in the eyes of 2nd amendment advocates, your local national guard unit or medium sized police force has you well outmanned and outgunned. Fighting force on force isn't an achieveable option.

       

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        Jason, Jun 10th, 2013 @ 9:56am

        Re: Re: Force

        That is exactly the argument to show that it is possible. The national guard, army reserves and police have all the weaponry I need. All I need to do is sit with them in a bar once a week and turn them to our side. Then, when the time comes we use the weaponry we payed for against the government who stole the money from us in the first place.

         

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        Anonymous Coward, Jun 11th, 2013 @ 5:14am

        Re: Re:

        How exactly does the government outman the populace?

         

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      John Fenderson (profile), Jun 10th, 2013 @ 9:03am

      Re:

      There's a lot of answers to this. I'll give two practical ones:

      1) You'd lose
      2) If you won, you'd probably end up with an even worse, more oppressive, and more violent government than what we have right now.

       

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        Anonymous Coward, Jun 10th, 2013 @ 1:01pm

        Re: Re:

        ...so bring on the tyranny and be happy for it...

         

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          John Fenderson (profile), Jun 10th, 2013 @ 4:14pm

          Re: Re: Re:

          There are many ways to unseat tyranny without engaging in warfare. To say that violent revolution is not likely to yield desirable results is not to say that nothing can or should be done.

           

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    Woadan (profile), Jun 10th, 2013 @ 5:54am

    We were told, when the network was being infiltrated, that if we had nothing to hide, we shouldn't worry.

    If the government has nothing to hide, why was it hiding? What is it worried about?

    I'd like to live in a country where the government isn't afraid of its people.

     

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      Anonymous Coward, Jun 10th, 2013 @ 1:03pm

      Re:

      I'd like to live in a country where the people do not need to fear the government.

       

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        John Fenderson (profile), Jun 10th, 2013 @ 4:15pm

        Re: Re:

        Further, I'd like to live in a country where the government needs to fear the people.

         

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          Anonymous Coward, Jun 10th, 2013 @ 9:21pm

          Re: Re: Re:

          "Further, I'd like to live in a country where the government needs to fear the people."

          If the government fears the people, the people fear the people as well.

          The Government IS 'the people' and are the 'WE' of "We the people"

          Plus YOU DO live in a country where the Government fears the people, which is exactly why you have this level of oversight and monitoring for 'the people'.

           

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            Anonymous Coward, Jun 11th, 2013 @ 5:19am

            Re: Re: Re: Re:

            I'd like to live in a country where the government doesn't need to fear the people but rather acts out of a genuine affection for the people it governs instead of fear.

             

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          Niall (profile), Jun 11th, 2013 @ 3:04am

          Re: Re: Re:

          I think that it is better to do things from mutual respect, not fear. So a government that respects its people is more likely to be respected by its people. All the government should 'fear' is losing their cushy jobs - just like anyone ought to fear if life was actually about consequences of actions.

          Which reminds me, all those conservatives who have hard-ons for 'suffer the consequences of your actions/choices' - how come that never seems to involve them and their rich buddies who can destroy economies and lives, and only to the poor and minorities and foreign countries?

           

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    Anonymous Coward, Jun 10th, 2013 @ 5:55am

    Not only legal but constitutional

    Also, absolutely necessary, and something the AMERICAN PEOPLE DEMANDED, off the US Government after 9/11, you have put your Government in an impossible position, they are dammed if they do it, and dammed if they don't do it.

    before 9/11 Bin Layden purchased a Nera satellite phone (from America) and made and received several called from people he was working with in the US.

    But at that time, the NSA, CIA and FBI were not sharing both sides of the conversation.

    That resulted in NOT stopping the attacks, or at least making it easier for them to conduct their business.

    If they do nothing the opposition uses that to say there are a weak Government, if they try to do something the opposition says they are violating rights.

    What they have indicated they DO at present meets the requirements on your constitution, and is no more or less than what Wikileaks has done against the same Government.

    You as a population DEMANDED the security services do their job, now that they are, you cry about it.

    It was obvious it was legal, it was checked against the constitution before it was approved, and is checked by a court to ensure it remains constitutional, it is also legal.

    So it is legal, constitutional and demanded by the US population. So get over it, your Government has, your Government is also probably looking at things like Wikileaks and saying "we'll they did it to us" what do they expect !!!!

     

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      Anonymous Coward, Jun 10th, 2013 @ 6:19am

      Re: Not only legal but constitutional

      Also, absolutely necessary, and something the AMERICAN PEOPLE DEMANDED

      This surveillance is the result of a hysterical overreaction led by the press and politicians, demanding that the security services do the impossible. The security services in turn used this reaction to get what the wanted in the way of surveillance of the American people.
      Is relevance to stopping terrorists is almost nil, the competent ones know how to keep their communications below the radars. Its relevance to dealing with mass protests by the American people is high, it allows identification of protest leaders and organizers.

       

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        Anonymous Coward, Jun 10th, 2013 @ 9:14pm

        Re: Re: Not only legal but constitutional

        This surveillance is the result of a hysterical overreaction led by the press and politicians

        actually it is the result of a bunch of terrorists flying planes into American Icons.

        I don't think it was the press or politicians flying those planes!!! Do you ?

         

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          Niall (profile), Jun 11th, 2013 @ 3:08am

          Re: Re: Re: Not only legal but constitutional

          Doesn't matter what the terrorists did - you have a choice how you react. Look at the US hysterical over-reaction versus say how Norway responded to Breivik, who makes your home-grown killers look like pussies.

          You always have a choice, and it should never involve a loss of liberty and respect for people - or you have a Middle Eastern-style tyranny and the terrorists have one. And they have won so much here.

           

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        Anonymous Coward, Jun 10th, 2013 @ 9:18pm

        Re: Re: Not only legal but constitutional

        Is relevance to stopping terrorists is almost nil,

        no, the relevance to stopping terrorists is almost absolute !!!

        What do you think it's relevant too ?

         

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      Anonymous Anonymous Coward, Jun 10th, 2013 @ 7:43am

      Re: Not only legal but constitutional

      I do not believe this is constitutional.

      The fact that 'they' checked it out is most certainly self serving.

      The courts agreeing, or not taking cases (which is tantamount to the same thing, at least until the take a particular case) have made several mistakes recently. I will leave Citizens United as an example, I am certain there are others that don't come to mind just now.

      What? You say I cannot disagree with the Supreme Court? Sorry to disappoint you, but opinions are still legal, NSA or not. Also, nine black robed morons in a hurry can make mistakes.

      The court should take the constitution at its word and stop all the weaseling around about supposed intent of the framers, gerrymandered to fit whatever their personal agenda is, conservative vs liberal.

       

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        Anonymous Coward, Jun 10th, 2013 @ 9:01pm

        Re: Re: Not only legal but constitutional

        I do not believe this is constitutional.

        The fact that 'they' checked it out is most certainly self serving.

        And the fact that YOU checked it out is also most certainly self serving.

        The court should take the constitution at its word and stop all the weaseling around about supposed intent of the framers, gerrymandered to fit whatever their personal agenda is, conservative vs liberal

        They DID do exactly that, from the Constitution they established, a Government, Federation of states, ratification of state and federal laws, and the establishment of Courts.

        So it is perfectly Constitutional to use the ratified laws, and established courts for the purposes set out in the constitution.

        The constitution made those laws possible. So the laws and Courts and the court's ruling on those laws is what the constitution made possible.

        Just because YOU don't like it, does not mean it's wrong, illegal or unconstitutional. It just means you don't like it.

        Nowhere in the Constitution does it say YOU have to be happy with all aspects of the constitution or the countries legal framework, or process.

        For example, your "Right the bare arms" was set out at a time when the US Army was 625 people strong !! At a time when the US was clearly not capable of defending itself.

        That is not quite the situation today in 2013, yes you strongly support (mostly) that constitutional right.

        People are free to agree with or disagree with laws and constitution, you have liberty to do that. But that does not make the laws or the constitution a "Popular vote" type of thing.

        You are bound by them just as much as everyone else, just as much as the Government the Constitution enabled.

        Bb>In McCulloch v. Maryland (1819), the Supreme Court read the Necessary and Proper Clause to permit the federal government to take action that would "enable [it] to perform the high duties assigned to it [by the Constitution] in the manner most beneficial to the people,"[25] even if that action is not itself within the enumerated powers.

         

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          Lurker Keith, Jun 11th, 2013 @ 12:55am

          Re: Re: Re: Not only legal but constitutional

          & the 4th (unreasonable searches and seizures), 5th (due process), 6th (fair and speedy public trial by jury) & 9th (other rights of the people not in the Constitution) Amendments were added, in the beginning, to prevent the Government from doing stuff like this, so how is it Constitutional?

          These mass data collections clearly violate the 4th & 5th Amendments, the treatment of whistleblowers violates the 6th. & the 9th was included to cover anything the other 10 left out. & all the secrecy violates all 4 of these Amendments in various ways.

          I'm also fairly sure they've over stepped their bounds, which violates the 10th Amendment.

           

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      John Fenderson (profile), Jun 10th, 2013 @ 9:09am

      Re: Not only legal but constitutional

      You as a population DEMANDED the security services do their job, now that they are, you cry about it.


      Wrong, wrong, wrong. Yes, we demanded they do their jobs. We did not demand that they do so by attacking the underpinnings of our society. Also, the methods being employed were deliberately concealed form the American people -- so you can't argue that there was some kind of consent.

      It was obvious it was legal, it was checked against the constitution before it was approved, and is checked by a court to ensure it remains constitutional, it is also legal.


      While I think it is legal, due to the terrible changes in the laws made post 9/11, what evidence do we have that it was checked against the Constitution or checked by a real court (the FISC doesn't even come close to counting as a real court)?

       

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      Anonymous Coward, Jun 10th, 2013 @ 10:39am

      Re: Not only legal but constitutional

      No one demanded this but our 'leaders' who demanded that they be allowed to do it because it was 'something' and 'something must be done. Plenty of people pointed out the dangers of this line of thinking at the time but fear was allowed to rule the day by our 'leaders' who knew they could twist it to their advantage.

       

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        Niall (profile), Jun 11th, 2013 @ 3:12am

        Re: Re: Not only legal but constitutional

        It was also very noticeable that anyone who disagreed at the time with the over-reaches at home, and the mass scattergun invasions abroad were guilty of being 'unpatriotic', 'unAmerican', or just sympathising with terrorists. Given how the invasions worked out, are you really so surprised that the government handled the home front this way?

        Frankly, it just makes me glad you guys mostly sat out WW2, and weren't in danger of being bombed directly - you'd have probably sterilised the whole of Europe and the entire Pacific Rim in your profligate over-reaction!

         

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    Anonymous Coward, Jun 10th, 2013 @ 5:55am

    Legal except that...

    The laws that make it legal violate the Constitution and are therefore themselves illegal. They stand only because every time they are challenged, the Executive, declares National Security or Sovereign Immunity or SCOTUS either twists the Constitution to allow them to stand or punts the issue to avoid dealing with it.

     

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      Anonymous Coward, Jun 10th, 2013 @ 7:57am

      Re: Legal except that...

      Didn't Obama actually say the program was "lawful" as opposed to "legal"?

       

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      Anonymous, Jun 10th, 2013 @ 5:19pm

      Re: Legal except that...

      And it was the CONstitution that gave us the government and supreme court in the first place, eventually making this possible. As I've said before, the fix was in from the beginning.

       

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        Niall (profile), Jun 11th, 2013 @ 3:15am

        Re: Re: Legal except that...

        You have separation of powers for a reason - doesn't make it perfect, but it helps. It does fall apart if all the 'old men' get scared together.

        Your Constitution is quite good, as far as it goes (which isn't far enough). It's just it gets ignored too readily in some instances, and too worshipped in others (how come the only 'sacred' amendment is the 2nd?).

         

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          Anonymous Coward, Jun 11th, 2013 @ 5:39am

          Re: Re: Re: Legal except that...

          The 2nd amendment isn't the only 'sacred' one. The 1st is even more important. Without the 1st amendment the 2nd is relatively pointless.

           

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    Dan (profile), Jun 10th, 2013 @ 6:02am

    I doubt most care

    I told my mom the extent of the PRISM program. Her response was, "Good. As long as there are no more bombs." I'm beginning to think that the vast majority doesn't care about surveillance. Disheartening...

    'If I'm not doing anything wrong...blah, blah, blah'

     

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      Magill (profile), Jun 10th, 2013 @ 7:43am

      Re: I doubt most care

      This is a generational thing.

      Your mom says "good" because she doesn't use the Internet. She only calls her relatives on the telephone, and maybe her hairdresser.

       

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        horse with no name, Jun 10th, 2013 @ 5:12pm

        Re: Re: I doubt most care

        Yes because once you join the echo chamber generation, you spend all your life being outraged by things without being able to stand back and think of it in more simple terms.

        Mom's right, you should think about it.

         

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          Anonymous Coward, Jun 11th, 2013 @ 6:38am

          Re: Re: Re: I doubt most care

          It's okay horse, I know you're mad.

          You have one viewpoint, which no one agrees with because everyone here sees the shit between the lines. This shit is the same shit you choose not to see because you're content to live in a shitty society and never change things for the betterment of everyone around you.

           

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    Anonymous Coward, Jun 10th, 2013 @ 6:09am

    Secret laws, secret courts, secret oversight measures. It's patriotic citizen! Obviously the founding fathers would have approved! They loved that Star Chamber shit.

     

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      Lurker Keith, Jun 10th, 2013 @ 8:12am

      28th Amendment to the Constitution of the US

      Perhaps we need to add a new Amendment to the Constitution, banning the Government from using the word Secret (& synonyms like Classified) in regards to anything w/in our borders or involving a US Citizen (w/ a note specifying that revoking their Citizenship after-the-fact isn't allowed).

      Obviously, this would have to be applied retroactively.

      We'd also have to have in the Amendment that it must be read literally, to prevent the inevitable illegal secret interpretation that gets around the illegality of secret interpretations.

       

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    horse with no name, Jun 10th, 2013 @ 6:10am

    Questionable?

    I think you have to realize that when you say "questionable legal rulings" what you really mean is "rulings I don't agree with".

    Also, you have to remember that piracy, Aereo, and a whole bunch of others things are based on questionable court rulings. Betamax case? If the judges could see what is there now they likely would have ruled differently.

    So before you try to excuse it as "bad rulings" just remember that every ruling looks bad to someone, and it's likely more your point of view that is the issue and not the ruling.

     

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      Anonymous Coward, Jun 10th, 2013 @ 10:47am

      Re: Questionable?

      No, they mean questionable. Has in, the legal logic that was used to arrive at this ruling doesn't make sense. Has in, the legal logic used in many cases leads to circular catch 22s where no one has standing to ever challenge the legality of something because the case is short circuited before they even arrive at that decision. It's questionable regardless of if you like the outcome or not.

       

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        horse with no name, Jun 10th, 2013 @ 7:53pm

        Re: Re: Questionable?

        The issue isn't that at all. The rulings in and of themselves, standing alone, make sense. They split the hairs of the legal system, and while we may not like all of the rulings, most of them taking by themselves are valid and reasonable.

        You may or may not like the Roe v Wade decision, but you have to accept that the decision isn't questionable in itself. You may not like the results one way or the other, but the decision itself is not questionable.

        Now, where it gets complicated (and tends to confuse and upset people) is when a number of rulings are put together to justify actions which some might find more objectionable. It would appear that almost all (if not in fact all) of what the NSA is going appears to be within the boundaries of the law and court decisions made out there. It doesn't make those individual decisions questionable.

        The whole deal is hilarious. Now the leaker dude as "gone missing" from Hong Kong. Let the conspiracy theorists start slinging tin foil balls at each other over that one!

         

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          Lurker Keith, Jun 10th, 2013 @ 8:36pm

          Re: Re: Re: Questionable?

          The fact that the FIS Court & DoJ say the other is responsible for releasing that ruling of Unconstitutionality is questionable. There is no two ways about that. Either the FISC has oversight or the DoJ is running this on its own. Which is it?

          We have a Checks & Balances system for a reason, however broken it may be. If one Branch ends up w/ unchecked power, well, this happens.

          It is exactly for stuff like this that the Government should be banned from having secrets, at the very least w/in our borders.

           

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        Anonymous Coward, Jun 10th, 2013 @ 8:21pm

        Re: Re: Questionable?

        All Court rulings are legally questionable, that is why they are in a Court, but once the ruling is make the 'question' is answered.

        BTW: it's "AS IN" not "HAS IN".

        Once the court makes a ruling the question has been asked and answered. Therefore by definition it is no longer questionable, (unless you seek an appeal).

        If you seek an appeal, you are not questioning the question you are questioning the answer.

        I was questionable, then it went to Court, the question was answered making it no longer questionable.

         

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      Anonymous Coward, Jun 10th, 2013 @ 2:23pm

      Re: Questionable?

      you're a one trick pony

       

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    Anonymous Coward, Jun 10th, 2013 @ 7:51am

    This reminds me of a politician in South America that stated the following.

    "For my friends everything, for my enemies the law"

     

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    special-interesting (profile), Jun 10th, 2013 @ 9:09am

    The US Constitution clearly states several freedoms that are core American cultural values. They are undeniably written in several paragraphs including the introduction right on down to the Bill of Rights and several other amendments.

    The clearly envisioned document has been eroded over time. Sure. The US Constitution speaks of many great cultural ideals such as Freedom of Speech, Press, Religion, Petition and Assembly. So what? Big deal!

    There are a lot of details in the US Constitution. Not the least of them are Liberty and Due Process.

    What is not written in the US Constitution is how we interpret and implement it. As the White House, NSA and various parroting agencies clearly point out. Its all how you look at it.

    Womens Suffrage, Civil Rights, Slavery and more. (don't forget the several monopolies that were broken up along the way) So much death, pain and cultural destruction.

    Do you feel at liberty to do what you want (of course excepting physically hurting or stealing from anyone)? If you were accused of anything do you feel that Due Process will be followed?

    Have the people you voted for did/do the things you believed they should do in performance of their elected duties? Maybe. Maybe not. Maybe even they worked against the democratic grater whole for some special interest written law?

    Have any of us made contributions to political parties who did not actually carry out that official unofficial contract to fulfill our dreams of a republic democracy? Did they do what you expected? Maybe. Maybe not. Maybe even they were working in their own best interests?

    Who's fault is it? They were our lawmakers, we put them there.

    Ours! We did it. We... Went to sleep on watch duty. (a serious crime in times of war)

    We Fucked Up.

    Wanna make up for it? Vote. And. Make campaign contributions.

    Put your vote where it counts. Don't vote for some lame arsed candidate just because party A or B always seem to be at the top of the ballot and loudly squawking in the news. Parties 1 and 2 are currently in control and will always find a way to quash competitors. Its normal party business to corral the masses by dominating all the news time slots and swipe top billing at the ballot box..

    Make financial contributions to the elected members of government you think are doing a good job. Even, and especially, if its a Senator or House member from another state. (or even country, keeping in mind the, EU) Include a note saying how you think he/she is 10 time the person their own state candidates/politicians are.


    Paying attention is a guaranteed way to make a difference. Luck has nothing to do with it. Put your money and votes where your mouth is.


    -footnote-

    If you are lucky your social group is not being persecuted and prosecuted by other larger groups in current power. In the last 40 years a litany of groups have been persecuted starting with the hippies in the 70s and ending with the downloaders in 2010s.

    The various insidious laws used ranged from growing plants to appreciating media. (Stated quite well.) All of them are some form of lifestyle violation based on some moral/religious/intolerant viewpoint, of some other social group, that happens to be in power.

    What was the current outrage..? the copyright industry beating up on the Blind using their own support groups? What law will be written that overwrites a culture of caring and support for the visually impaired?

    What are the real issues you want? Want freedom to grow medicinal spices in your backyard? Want the Internet to be like old broadcast TV where every thing you could download/receive within your local bandwidth/band-volume was free? Want to sing a song called Happy Birthday at your family/public party (of 200) legally? (cover charge ok but charging for profit might not be?)

    Let's get going... It looks like a long road and it looks like rain.

    -

    Reactionary,

    Don't believe any of them. Corp parrots nor gov wordsmithing.

    All the circus show so far seems like lion taming and dolphin jumping. But the show does not seem to be fixed nor have definite scope. There is more to this story than what is known as shown by the indecisive and nervous shoo shooing of the current political crop. If the PRISM thing is easily admitable then what is behind the curtain #1, #2 and etc?

    Obviously the technical details are hidden atm. Keep digging. Its just a guess but if the Private Key's are included in NSL demands then whatever traffic is an open book. Building their own mirror from that flow is less easy but doable.


    “Nobody cares you watch lesbian granny porn and pay for the privilege.” Wrong. Almost completely and entirely wrong. You might not and good for you. But lifestyle violations (see above) are the common form of class warfare. Very common.


    “Give Full Access to the Public.” That would be problematic. There are levels of “expectation of privacy” and just using the Internet dose seem to qualify. Bank records, IRS returns, etc. Definitely opened up to congressional review. (remember to vote for someone you trust and not someone who just says they are the most skilled)

     

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      Anonymous, Jun 10th, 2013 @ 5:29pm

      Re:

      You were good up until the "Vote. And. Make campaign contributions". *shakes head*
      "Put your vote where it counts". Would that be the trash can or paper shredder?

       

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    EroticReader, Jun 10th, 2013 @ 11:10am

    FYI

    Unless the so called laws were passed exclusively as amendments to the constitution of the United States, The Fourth Amendment should take precedence over the laws passed. Therefore, the laws should be declared Unconstitutional as they violate this tenet of the constitution.

     

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      RyanNerd (profile), Jun 10th, 2013 @ 11:52am

      Re: FYI

      The trouble with this is that it is the Supreme Court that interprets the constitution. Unfortunately for the citizens it is filled with pinheads that don't care about citizen privacy issues.

       

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    Anonymous Coward, Jun 10th, 2013 @ 1:47pm

    This is the exact response the UK government have taken to the situation. They are simply making statements that any actions made by GHCQ were "within the framework of the law".

    David Cameron even made a statement to this effect on TV (as if he even knows how GHCQ operates and what they're doing).

    The BBC has downplayed the story in the exact same way. After the Guardian articles were published, discussion on the matter is already going quiet here in the UK. We're simply falling back to sleep.

    I'm supporting the Open Right's Group, which is like the UK's version of the EFF. http://www.openrightsgroup.org/ I suggest anyone in the UK who is concerned with what our gov is doing to support these guys. We could do with some organised, large scale criticism of this immoral system.

     

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    Anonymous Coward, Jun 10th, 2013 @ 3:47pm

    Oh Mikey,

    We all know that you think they actually broke the law, and not just that you think the law is broken. Sheesh. Of course you think the law is broken, just like you think so many countless other things are broken. You also think they broke the law. You're just waiting for someone to say something plausible to that effect so you can adopt it as your own reasoning.

    Just like the broken record that you are.

     

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    Anonymous Coward, Jun 10th, 2013 @ 5:29pm

    [meta] A suggestion regarding these "floating posts".

    How about using cookies to "defloat" them for people that have seen them? As indicated in one of three ways:

    * Click the "expand" thingy on it, and it won't be floating the next time you load a page.

    * Clicking through to the article from its headline, ditto.

    * Add a small "x" at the right hand side of the blue bar above the post, which simply defloats it and reloads the page (immediately sorting it back where it would otherwise go).

    The third item is so that you can still distinguish, in your server logs, viewers interested in the article from viewers not interested. Without it, people will click through to "floating" articles sometimes just to get them to stop floating and making it harder for them to tell where the new articles end and the ones they've read begin. The log statistics will then conflate these with actually interested readers, giving an artificial bump to "floating" articles that won't be easy to separate from the bump from featuring it and the effects of its actual topic. With the "x" option, though, people who read the headline and are disinterested will be able to defloat the article with less mess and fuss and will probably prefer that method.

    Your goal of ensuring people that haven't seen the article yet see at least its headline would remain intact, as none of these methods of defloating the article would do so prior to a user noticing it. Meanwhile, they'd be less annoying to anyone who has already either read them or seen their headlines and elected not to read them.

    (If you also have the goal of making them annoy people into reading them that wouldn't do so if they could easily defloat them without doing so, then I don't support that goal.)

     

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      Lurker Keith, Jun 10th, 2013 @ 8:43pm

      Re: [meta] A suggestion regarding these "floating posts".

      How do you deal w/ the people who either don't allow cookies, have the cookies self-delete when the browser closes, or manually deletes them, if the browser doesn't catch them all?

      I am in categories 2 & 3.

      I don't know how many times I've seen cookies & other Temporary Internet Files pile up & lag even fast computers.

      I also don't like other sites/ corporations/ government entities snooping through those cookies files.

       

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        Anonymous Coward, Jun 11th, 2013 @ 3:37am

        Re: Re: [meta] A suggestion regarding these "floating posts".

        The articles just won't defloat for them. Not having sites remember things about you is a price you pay if you delete/avoid cookies.

         

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    Bill, Jun 10th, 2013 @ 9:02pm

    It's our fault we're in this mess and we should have put a stop to this kind of abuse a long time ago. Giving up freedoms and rights all in the name of stopping the terrorist and protecting the children "I wonder if they protect terrorist children?"is fucked up.

    If we keep going down the path we're on it will only be a matter of time until we have no rights left and to even mention freedom will lead to punishment.
    They're doing it slowly, but it's happening one bill at a time.

    At some point in the future there will be civil. That is sad because we actually have the freedom to do something about it and the power to stop it, right now.

     

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    JJ Joseph, Jun 10th, 2013 @ 9:21pm

    Security

    The NSA is acting the exactly the same as the airport TSA. Everyone gets inspected, regardless of their degree of threat. Congress has asked for it to be done this way. This happens because we people are too chicken-shit to start identifying who it is that we're worried about. We're worried about Muslims wreaking terror on us and our neighbors, but we're too sissy to name the problem. The result is EVERYONE gets body-searched, and EVERYONE gets their messages spied upon. When we succeed in killing off the TSA airport security and the NSA message security, our defenses will be down, and the Muslims will have won the battle.

     

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    special-interesting (profile), Jun 10th, 2013 @ 11:21pm

    Lets use (a simplified version of) set and group theory to help categorize and localize our fears/problems/concerns. Hopefully without incurring the deep emotions each parties stances often invoke. (this is more than tongue in cheek so bear with me) A "Just the facts, ma'am" (Dragnet) type of analysis.



    If you vote, voted or will vote for party A or B... yes a paper shredder might be a good description of how that vote was wasted.

    Parties B and A (interchangeable and almost indistinguishable) both pound their chest prominently when boasting on how they love the US Constitution but most of their actions seem to say they hate it and it gets in the way of party domination.

    We have so many, many examples of how parties A and B have screwed up in so many, many ways its a true wonder of modern sales and marketing technique that they still hold on to political power. Destroying the world with actual and economic war has not been enough and now the US Constitution seems ready to fall.



    Parties A and B really have much in common. One most striking is that Both B and A parties HATE party C and D. (more interchangeable variables) So much so that the combined attacks on C and D are total and ruthless almost always successfully portraying them as kooks and weirdos.

    The only thing that B and A hate more than C and D is marital infidelity. Yes a religious viewpoint is more important than graft, corruption, war, drone strikes, banks crashing/bail-outing, home loan scandals, economy crashing... (etc) Such misplaced priorities seem to place parties A and B out of reality.

    The truth, in the matter, is that party A and B candidates are equally weird and kooky. A ≈ B. They are only better able to hide such nuttiness behind party lines and outright party union-like defense tactics.

    --

    Parties B and A have kept power by the age old game of fear. With all skill of a dozen Stephen Kings on steroids the parties A and B use existing government departments to tap into the deep depths of the American public psych to locate each social groups fears...

    Then play them out on the news until we scream for mercy and cry to our congressional representatives to vote for whatever act/bill/law appeases such fear. With each law passed there is a small but distinct portion of Liberty lost.

    What is your fear. Terrorists? Porn? Porn trolls? A different religious group? Kids playing cops and robbers holding toy guns? Whatever it takes. Its hard to understand and recognize irrational fear. When you find it it helps to identify who tried to use it upon you.

    “,the only thing we have to fear is...fear itself--,” (Said, Franklin D. Roosevelt th 32nd president (of), party A or B?)

    --

    If you meant that their might be voting fraud this might also be valid. It is a fact that the great majority of voting judges are of parties A and B. Party C and D might suffer.

    At least Voter fraud might be rooted out with a more publicly funded party C and D (or E and F.)

    These are legitimate concerns and not fears. Lets deal with them by insisting on a paper ballot and party C and D judges being present.

    --

    There is the great myth that all we need is party A and B. Such a view, however unreasonable, is greatly encouraged by party B and A if only to stamp out competition from C and D. Somehow the public is psyched that they can play party B against party A for whatever they want/need.

    Under either party's reign has copyright ever been retracted? Has a whistle blower ever not been persecuted or at least fired? Except during the short times when the public has forced monopolies to break up have they ever not helped/enabled them to grow and become lethal in size? (yes; big enough that life, liberty and heath are wasted)

    --

    Currently its vogue/popular voter policy to 'just vote 'um out' of office. However if one just Replaces one B candidate with another B candidate (regardless of what 'reform' platform they spout) then what is really changed?

    Its normal that party A and Party B candidates always vote in congress +90% along party lines. So an individual candidate from A is mostly homogeneous in respect to congressional voting habits. Stated simply; There is no difference between one candidate from party A than another.

    Even more accurately; A1= A2 ≈ B1=B2.

    So its a futile halfhearted gesture to try and punish party A candidate A1 by just switching to A2. The same goes for party B. If on really wanted to punish parties B and A then they must find a viable candidate from C or D (etc).

    Only when party C begins to gain market/voter share will A and B begin to change...




    -best Dragnet voice-

    Of course the actual identities of A, B, C, D, etc are withheld to, hopefully fully, incriminate the guilty parties involved.


    -best Steve McGarrett voice- (Hawaii Five-O's)

    “Book 'um, Danno!”




    Note; This is a very simplified version of set and group theory mostly verbally implemented. This is a great analysis and worthy of fully being explored in full set notation but how many of you remember that from high school?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Chris, Jun 10th, 2013 @ 11:40pm

    Amazing Article

    Thanks for writing this.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jun 11th, 2013 @ 2:57am

    National poll

    I guess you don't want to hear that when the US PEOPLE were asked about this the MAJORITY believe it was 1) LEGAL and
    2) Ethical and appropriate.

    so not it's the majority of your population, the courts, the Government, and the Constitution, oh, and not only this present Government, but Governments going back to Truman, and the second world war. At that time, it was also a bipartisan agreement between the incumbent government and the opposition.

    Guess, that puts you in the fringes, the outrage you feel is yours to deal with.. deal with it.

     

    reply to this | link to this | view in chronology ]


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