Based On NSA Defender's Arguments Against Public Debate, The 4th Amendment Should Be Classified

from the sources-and-methods! dept

One of the key points that we keep hearing from defenders of the intelligence community concerning the Snowden leaks, is that all these revelations about what the NSA is spying on is providing important info to “our enemies” who can then use that information to evade the watchful eyes of US intelligence. That’s silly for a variety of reasons, with a big one pointed out by Conor Friedersdorf at The Atlantic. Based on that same logic, you could argue that the Fourth Amendment of the Constitution should be classified as top secret for revealing the same kind of information. Cue the sarcasm:

Notice how much the Fourth Amendment tells our enemies. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” it states, “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.”

The Framers are usually considered patriots. Yet they gave traitors and criminals in their midst such powerful knowledge about concealing evidence of skullduggery! Today every terrorist with access to a pocket Constitution is privy to the same text. And thanks to the Supreme Court’s practice of publishing its opinions, al-Qaeda need only have an Internet connection to gain a very nuanced, specific understanding of how the Fourth Amendment is applied in individual cases, how it constrains law enforcement, and how to exploit those limits.

He makes the basic point that you can more or less apply this kind of test to all of the claims by NSA defenders. He points to regular Techdirt favorite, Stewart Baker, who is still apoplectic about the idea that we’re having a public debate about any of this, because:

“You can’t debate our intelligence capabilities and how to control them in the public without disclosing all of the things that you’re discussing to the very people you’re trying to gather intelligence about,” he said. “Your targets are listening to the debates.”

But, uh, yeah, that’s kind of the point of living in a free and open society. Nearly a decade ago, in a totally different arena, Professor Ed Felten talked about how you could debunk calls for stronger intellectual property protections via the Pizzaright Principle, whereby if the identical argument being made for why we need stronger copyright or patent protections could similarly be made for why someone deserves an exclusive right to sell pizza, then the argument is bogus.

It seems that we could do a similar sort of thing for any discussion that tries to cut off public debate and discussion about what the intelligence community is doing as well. If the same argument could equally apply to why we should not have a public 4th Amendment, it should be default evidence that the argument being pushed is completely bogus. We can call it the “Classified 4th Amendment Test.”

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Comments on “Based On NSA Defender's Arguments Against Public Debate, The 4th Amendment Should Be Classified”

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Anonymous Coward says:

Re: Re:

They’ve gone all the way down and fallen off the slippery slope. I have horrible visions of eternal multiple 3-letter agencies stuffed full of tech geniuses (in their own minds) and off-the-leash Generals.

So that SSL you use to buy stuff from Amazon, that’s encryption, encryption = must break (hey it’s a challenge, tech mind says), target of broken encryption = user (techie mind). Target = stuff to shoot or blow up (General mind) = adversary = enemy = go get ’em = go get ’em all.

Moral: never let your Generals slip the leash or let them forget who is boss. Ditto tech elitists.

Ima Fish (profile) says:

Heck, why stop with just the 4th amendment? By publishing our criminal statutes we’re telling terrorists and criminals exactly what facts and circumstances the police and prosecutors are investigating. By publishing court rules, we’re telling terrorists and criminals the inner machinations of our judicial system.

Clearly all laws should be hidden. And our judicial process should be kept entirely secret.

Anonymous Coward says:

"The Framers are usually considered patriots."

They were also incredibly courageous men. If you read their stories (I recommend “Founding Brothers” for one interesting perspective) you’ll find that they weren’t at all sure that this experiment called the United States was going to work. Some of them thought there was a fair chance that they’d end up hanging for treason. But they did it anyway.

Stewart Baker, by contrast, is no patriot. He is a coward, sniveling and whining and afraid of his fellow citizens. John Adams and Thomas Jefferson would take turns bitch-slapping him if they were here today, because they would be appalled that from his comfortable position he is too weak to stand up for the rights that they put their “lives, fortunes and sacred honor” on the line for.

Mason Wheeler (profile) says:

He’s being sarcastic, but he’s actually making a good point if you generalize it. History has shown that in any social interaction where the stakes are high enough for someone to consider it a game to be won, there will be people whose preferred tactic is to “play the rules” rather than to play by the rules.

This is generally considered undesirable, if not outright cheating, by most other players. One effective way of discouraging such behavior is to simply keep the rules secret. For example, this is why Google doesn’t publish the details of its search ranking algorithms: it helps keep sleazy SEO in check.

This is not an inherently bad thing, but obviously it’s not always desirable either. The question to ask is, at what point does the cost outweigh the benefit?

DCL says:

Re: Re:

Playing the rules is not something the Goverement should be allowed to do in secret… unlike the Google example

… the difference is that if an SEO engineer purposely or accidentally breaks one of Google’s secret rules he doesn’t get his life ruined without due process worse case he gets sued, has a trial where he can refute the evidence that isn’t just a page of sold black and has to pay some cash.

That is much much different then being harassed every time you fly because you are on some secret list, or having your every electronic move recorded, or being thrown in jail without charges for an indefinite amount of time.

The point is the Google has to answer to a MUCH LOWER standard and the transparency they are required to have is appropriate. The Government here is hiding the standard by removing all transparency.

Anonymous Coward says:

Bulk snooping is unconstitutional. It’s doesn’t square up with the 4th Amendment, at all. National Security Maximalists’, know there’s no way to tap dance around the 4th Amendment, unless it’s done in compete secrecy with maximum classification that denies standing, to any plaintiff who dares put them on the defendants stand.

FM Hilton says:

Another secret

Let’s not give anyone any ideas..because it would be a very easy step for some people to consider that it’s ok to just dump that ‘damn piece of paper’ for something more readable, like “Dick and Jane”.

It’s just so inconvenient, that Constitution. It attempts to stop all kinds of wrong-doing, and yet alot of people don’t like it, especially the government.

Now, I ask you, what kind of country have we degraded into when our most sacred document becomes the butt of so many political jokes-and they’re not the funny kind.

It’s the ideals of the Founders that give it the power it has. If nobody in Washington can understand what it means, perhaps they should all go back to school, take a class in US History and find out what’s in it.

Oh, that’s right. They don’t teach that course any more. It’s called something else..I guess it must be ‘remedial social communications.”

Because it looks like a whole hell of a lot of people could use a few lessons.

John Fenderson (profile) says:

Re: Another secret

“it would be a very easy step for some people to consider that it’s ok to just dump that ‘damn piece of paper’ for something more readable”

Of course, given that the Constitution is what make the United States a nation, the moment they try to get rid of it is the moment the US ceases to exist. Not saying they’d care, but I imagine a lot of US citizens would, and war would be the inevitable result. (I would say “civil war” but that would be inaccurate. It would be defending against a coup.)

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