Yet Another Constitutional Scholar Explains Why NSA Surveillance Is Unconstitutional

from the worth-reading dept

We're seeing more and more legal experts weighing in on why the NSA's surveillance program is unconstitutional. The latest, from Randy Barnett, a professor of constitutional law at Georgetown, who has written an entire book on the subject, is a really detailed explanation for how the NSA's surveillance program is unconstitutional on multiple levels.
By banning unreasonable "seizures" of a person's "papers," the Fourth Amendment clearly protects what we today call "informational privacy." Rather than seizing the private papers of individual citizens, the NSA and CFPB programs instead seize the records of the private communications companies with which citizens do business under contractual "terms of service." These contracts do not authorize data-sharing with the government. Indeed, these private companies have insisted that they be compelled by statute and warrant to produce their records so as not to be accused of breaching their contracts and willingly betraying their customers' trust.
Barnett explains some of the history of the 4th Amendment, and how it was initially designed to allow juries of citizens to determine whether or not a search was reasonable, because the Founders of the country did not trust judges to "jealously guard the liberties of the people." However, over time that's consistently shifted, as law enforcement officials were made immune from civil suits and judges increasingly had power over whether or not such searches were reasonable. Further, he notes how hoovering up pretty much all metadata is quite similar to (I'd argue, in many ways much worse than) the "general warrants" issued by the Britsh crown, which colonial America was trying to get away from with things like the 4th Amendment.

However, he says this goes beyond just the 4th Amendment, but implicates the 5th Amendment as well:
Still worse, the way these programs have been approved violates the Fifth Amendment, which stipulates that no one may be deprived of property "without due process of law." Secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.
He goes on to point out that the secrecy of these programs makes it all that much worse, and unconstitutional on a different level as well, where the government is supposed to serve the people, rather than the other way around:
The secrecy of these programs makes it impossible to hold elected officials and appointed bureaucrats accountable. Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants' conduct in office. Yet such judgment and control is impossible without the information that such secret programs conceal. Had it not been for recent leaks, the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.
It seems worth noting that many of these reasons are in addition to reasons that others have presented as well. And, yet, to date, we've seen no one in the government offer a serious rationale for why the programs are constitutional in any way, other than hand-waving at a single 1979 Supreme Court ruling about the "third party doctrine," which requires a real stretch to pretend that allowed the kind of dragnet surveillance happening today.


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  •  
    identicon
    Anonymous Coward, Jul 15th, 2013 @ 12:28pm

    Im confused

    Why all the sudden is everyone jumping on this. Its been going on for better then 12 years at this point (in reality most of the 4th amendment was gone under Reagans drug war) and we have known about it, its not a revelation.

     

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      John Fenderson (profile), Jul 15th, 2013 @ 1:49pm

      Re: Im confused

      Because knowing about it and having it officially admitted to are two different things. Everyone "knew about it" in the sense that there'd long been reports and rumors of this sort of thing going on, but without solid proof most people could (and did) ignore the whole thing as "conspiracy theory".

       

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      Andrew D. Todd, Jul 15th, 2013 @ 2:06pm

      Why the Outrage? (to Anonymous Coward #1)

      Well, it reminds me of the remark of a German politician, circa 1965, that he would not, under a democratic government, the Federal Republic ("ein Recht-Staat"), put up with with things which he had _had_ to put up with under the Nazi regime ("ein Unrecht-Staat").

      I was impressed by something the English historian J.H. Plumb wrote about Watergate, and the JFK assassination conspiracy theorists, etc. He pointed out that it was all driven by the Vietnam War, and a cumulative sense of suppressed outrage. People accepted a "critique," if you will, in which "dirty tricks" were the ultimate reason why their little cupcake had gotten himself killed in the Battle of Ia Drang (*). And that mattered a great deal. The same thing is happening again, with the NSA, The anger is ultimately driven by the dusty soil of Iraq. Of course, the Nixon Administration's characteristic response to criticism was burglary, which is an offense at common law. Again, looking in the memoirs of Jack Anderson, the great Watergate-era investigative journalist, I find that he just realistically assumed that his office might be burgled, and got his young men to make up a roster for guard duty. Very well, someone like Glen Greenwald, Anderson's latter-day equivalent, needs to worry about encryption, but doing so is not really a big deal.

      (*) Ia Drang, if you don't know, is a godforsaken village, of no conceivable importance, in the central part of Vietnam, which was the scene of an indecisive battle, whose main function was to massage the egos of the respective generals. But "twas a famous victory."

      http://en.wikipedia.org/wiki/Battle_of_Ia_Drang

      Wire-tapping has gone crazy with technology, with the NSA trying to tap everyone's phone, instead of the small number of people whose phones would realistically yield intelligence useful either to a government or a political party (but who take cryptographic precautions to prevent this). Again, the basic fact is that real conspirators are men of few words. They usually worry at least as much about defectors and double agents as anything else, and keep real secrets fairly closely controlled, on a need-to-know basis. As we now know, there was a traitor inside WikiLeaks, but fortunately, Julian Assange's policy was to redistribute all information fast, and not to be in the position of keeping more secrets than he strictly had to keep. So the traitor was not able to do much damage.

      Now we come to the bug in the Ecuadorian ambassador's office. Ecuador is not a very important country, and it is a long way from any British territory, and I doubt that its embassy has any real secrets vis a vis the British government. Ecuador basically needs a consulate in London, to deal with the interests of people who go to school in England, and suchlike, and the additional functions of an embassy are mostly decorative. I imagine their security was chronically lax. Probably, almost anyone could get in to see the ambassador, without any kind of credentials, because the ambassador was sitting there being very bored.

      Uncontrolled NSA surveillance is practically related to an idea which has been running around in business, "data mining," which at its most crudely ridiculous is the idea that if you can discover whether I drink Coke or Pepsi, you somehow have access to my innermost motivations. In short, it's neo-Rumplestiltskin-ism, but it justifies a lot of expensive computer installations.What it works out to in practice is that little Jenny, age seven, is on the phone to her best friend Brenda, age six, talking about the usual subjects, and they are being listened to by ten secret agents, who are all pathetically convinced that the conversation must be a code for affairs of state.

       

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      Spacial, Jul 16th, 2013 @ 9:06am

      Re: Im confused

      How is the fact that it is 'known' for years an excuse to dismiss the importance of dealing with these serious matters? To me, it's more an indication that actions on these fascist programs are way overdue.

       

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    identicon
    Anonymous Coward, Jul 15th, 2013 @ 12:31pm

    And, yet, to date, we've seen no one in the government offer a serious rationale for why the programs are constitutional in any way, other than hand-waving at a single 1979 Supreme Court ruling about the "third party doctrine," which requires a real stretch to pretend that allowed the kind of dragnet surveillance happening today.

    I love how you link to that article as if therein you actually made a good argument for why anyone relying on Smith v. Maryland is "pretending." You didn't. In fact, I addressed your silly, regurgitated arguments in the comments, and I debunked them on the merits. Of course, you didn't bother attempting to stand behind your arguments because you do what you always do--run away. Now here you are, citing your own silly articles as precedent. It's silly argument built on silly argument, and you don't have the goods to actually defend any of it. Kudos, Mike "Censor Like the Chinese" Masnick.

     

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      Anonymous Coward, Jul 15th, 2013 @ 1:25pm

      Re:

      Funny how this one got trapped in the censor filter. I changed a couple things and reposted it. It went through the second time.

      Which words are you censoring now, Mikey?

      Keep it real, bro. Just like the Chinese. Silence those dissidents!! Block that criticism!! Engage censorship filters!! Block all who challenge the man behind the curtain!!

      And, whatever you do, run from substantive discussions on the merits!!

       

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    identicon
    Anonymous Coward, Jul 15th, 2013 @ 12:33pm

    And, yet, to date, we've seen no one in the government offer a serious rationale for why the programs are constitutional in any way, other than hand-waving at a single 1979 Supreme Court ruling about the "third party doctrine," which requires a real stretch to pretend that allowed the kind of dragnet surveillance happening today.

    I love how you link to that article as if therein you actually made a good argument for why anyone relying on Smith v. Maryland is "pretending." You didn't. In fact, I addressed your silly, regurgitated arguments in the comments, and I debunked them on the merits. Of course, you didn't bother attempting to stand behind your arguments because you do what you always do--you move on to the next silly argument rather than defend the ones you've already spouted. Now here you are, citing your own silly articles as precedent. It's silly argument built on silly argument, and you don't have the goods to actually defend any of it.

     

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      Anonymous Coward, Jul 15th, 2013 @ 12:49pm

      Re:

      It's silly argument built on silly argument, and you don't have the goods to actually defend any of it.

      Written by an esteemed, and well respected constitutional scholar.

      Who the fuck are you?

       

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      RD, Jul 15th, 2013 @ 1:51pm

      Response to: Anonymous Coward on Jul 15th, 2013 @ 12:33pm

      Dear Mike,

      Pleade Ban/censor/whatever this annoying douchenozzle. You have our support.

      Sincerely,

      Your Readership

       

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        identicon
        Anonymous Coward, Jul 15th, 2013 @ 3:37pm

        Re: Response to: Anonymous Coward on Jul 15th, 2013 @ 12:33pm

        Don't worry, RD. Mike is desperately trying to censor me because he just can't stand it when someone criticizes him. He's trying as hard as he can to keep me from reminding all of you dolts that Mike just doesn't have the goods to actually defend the nonsense he publishes. He's a total fucking fake and he knows it. I scare the shit out of him.

         

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        identicon
        Anonymous Coward, Jul 15th, 2013 @ 3:38pm

        Re: Response to: Anonymous Coward on Jul 15th, 2013 @ 12:33pm

        Don't worry, RD. Mike is desperately trying to censor me because he just can't stand it when someone criticizes him. He's trying as hard as he can to keep me from reminding all of you dolts that Mike just doesn't have the goods to actually defend the nonsense he publishes.

         

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    Tman, Jul 15th, 2013 @ 12:43pm

    Didn't see that "debunking". Post it again, let's see if you make more sense. I didn't see a single reference to "Smith v. Maryland", you brought it up.

     

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    Anonymous Coward, Jul 15th, 2013 @ 1:04pm

    Proud... to be an Americaaan!... Where they let me think I'm freeee...

     

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    Anonymous Coward, Jul 15th, 2013 @ 1:13pm

    This is why they want Ed Snowden silenced by fair means or foul, they can't defend themselves against his revelations.

     

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    Gwiz (profile), Jul 15th, 2013 @ 1:17pm

    Typo

    ...issued by the Britsh crown,...

     

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    FM Hilton, Jul 15th, 2013 @ 1:44pm

    If wishes were horses

    We can read and talk about all the constitutional scholarship written about how this program is illegal and goes against the Constitution until our faces turn blue.

    IT IS NOT GOING TO STOP THE PROGRAM.

    Now, we can either talk about it, or do something about it.

    I rather doubt anyone in this country has the balls to do anything about it, because let's face it:

    The NSA has your files in their computers. You want to see what happens when they decide to use them?

    The Stasi could tell you what happens next.

    It isn't pretty.

     

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      John Fenderson (profile), Jul 15th, 2013 @ 1:52pm

      Re: If wishes were horses

      Now, we can either talk about it, or do something about it.


      What course of action do you suggest?

       

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        Uriel-238 (profile), Jul 16th, 2013 @ 4:34pm

        Where hearts were entertaining Juuuuuune...

        Now, we can either talk about it, or do something about it.

        What course of action do you suggest?

        Bad sportsmanship?

         

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      Anonymous Coward, Jul 15th, 2013 @ 2:28pm

      Re: If wishes were horses

      If you want action on the issue, then go to your local citizens rights organisation and sign up, start a group on facebook, twitter reddit etc. Use said network to arrange demonstrations, happenings, press releases etc. Talking about it online is just a way to hide your face. If you want the politicians to listen, you have to be willing to show yourself!

       

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    wolfy, Jul 15th, 2013 @ 1:54pm

    I was saying a while back, the Stazi would be green with envy.

     

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    Anonymous Coward, Jul 15th, 2013 @ 2:00pm

    The Problem....

    In order to be considered "Constitutional Expert" you don't need to be able to understand the Constitution but be adept at abusing logic to justify the unjustifiable.

     

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      Anonymous Coward, Jul 16th, 2013 @ 5:18am

      Re: The Problem....

      You attack the messenger? Do you agree or disagree with the analysis?

       

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      Anonymous Coward, Jul 16th, 2013 @ 6:03am

      Re: The Problem....

      Barnett is a constitutional expert, but I believe his expertise is not in the Fourth Amendment. He writes about originalism, enumerated powers such as the Commerce Clause, constitutional structure, separation of powers, Fourteenth Amendment, etc. This article Mike is citing is not really giving us any legal analysis to work with.

       

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    Anonymous Coward, Jul 15th, 2013 @ 4:00pm

    "the Fifth Amendment, which stipulates that no one may be deprived of property 'without due process of law'". Tell that to the Missouri State Highway Patrol, especially the pigs in Troop G, who will steal a person's property and deny him due process of law.

     

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    FM Hilton, Jul 15th, 2013 @ 5:30pm

    What to do in the face of fear?

    So I posed the question what to do about the problem.

    Yes, there are no answers-I don't have any, because I've already gone the 'legit' route-by writing (!)both my Senators repeatedly about this issue (long before the news came out-back when the Patriot Act was the news), and got the same parroted information:

    "We're protecting your rights as a citizen, don't you worry!"

    For action to be actually taken, it would take courage and daring on the part of Congress and White House.

    Both are sadly and totally lacking in those attributes.

    Next time, people-vote for smarter in Congress, not more popular.

     

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      Uriel-238 (profile), Jul 16th, 2013 @ 4:46pm

      The face of fear?

      Next time, people-vote for smarter in Congress, not more popular.

      Same as the old boss.

      Representatives now come in two flavors: complacent or ineffectual. Neither will implement the change that needs to happen.

       

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    Uriel-238 (profile), Jul 16th, 2013 @ 4:43pm

    Two centuries is pathetic for an empire.

    I think Mr. FM Hilton is correct. So long as the people are satisfied that it's not affecting their lives personally, the constitutional legality isn't going to matter. Look at arguments re: censorship and gun control, both of which get into semantics.

    Only when enough people personally know someone who's been disappeared or arrested on national security grounds will any of this matter, and by then I expect peaceful change will be impossible.

    Then again, peaceful revolution is pretty impossible now.

     

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