and so does distribution using the mail, using the telephone system, and many other specific channels of communication. your internet isn't special and hasn't been specially targeted. have a look at the wire fraud convictions and prosecutions--to this day they dwarf internet fraud prosecutions, & nobody claims they are harming communications or "communication freedom." it's actually an effort to make the laws specific tailored to specific actions. how terrible.
We can figure out very much of what was meant by reading the writings of the framers and signers. This is the part lots of people like to ignore so they can pretend it says something it doesn't.
I don't disagree for a second that this is an important part of jurisprudence. It just isn't the whole story.
One of the main reasons for this is that the framers and signers themselves did not agree about the meaning of the document--despite working together on The Federalist Papers, for example, Hamilton and Madison very quickly diverged in their understandings of many parts of the document. The states diverged even more. This, too, is abundantly clear in the record. There is no way to read "objectively" without interpreting.
The "we" I mentioned w/r/t second amendment meant everyone, including government. You do seem to be arguing that the second amendment gives individuals the right to bear nuclear arms. There is lots of reason in the history of constitutional interpretation to suggest that this is false, and its potential for huge destruction is beyond obvious. There is almost nobody who argues that this is the right interpretation of the second amendment. Are you really arguing that until and unless an amendment prohibiting the bearing of nuclear arms is passed, we just have to let people have nuclear weapons, even if the price is global thermonuclear war?
until the advent of "originalism" (the bankrupt and self-contradictory philosophy as far as I'm concerned, that declares we can figure out objectively what the Constitution meant in 1776 and should only make it mean what it meant then) the "living constitution" was the dominant form of Constitutional interpretation in the US, and continues to be the dominant form in other countries that have Constitutions.
the reason is simple: both the meanings of words and the facts of the world change faster than we can possibly keep the document updated. When the US Constitution was written, the word "men" in "All men are created equal" literally meant white men who owned property. Today, we hear that phrase very differently. We even tend to think it means "women." When we get to important across-the-board rights like due process, I know of nobody, not even Scalia, who insists that it applies only to "men." Yet that is what the text says, if we take it in its most literal sense.
The second amendment refers to "arms," but we today have "arms" of a variety the framers could never have imagined. We could amend the constitution every time a new weapon is developed, or we could recognize that law adapts and changes over time. Even the NRA does not argue that the 2nd amendment gives citizens the right to bear nuclear weapons, but there has never been a specific amendment to legislate about that.
I'm not making this up. It is widely-established theory of law. It is NOT widely established that single executive branch members get to take this power unto themselves. It requires the entire populace and its governmental representatives. It is not in any way an "anything goes" rule. It requires careful attention to previous cases, previous interpretations, legal histories, and much more. And it is done in public, not behind the closed doors of NSA.
yet another of those rare instances where I agree (mostly) with Mr Masnick.
I don't disagree with Hayden's description of the Constitution as a living document--I think it is. What I disagree with profoundly is his view that he gets to decide when and how it changes and adapts. To the contrary, it is absolutely clear that such adaptations must be made by the three branches of government, and must be able to be checked all the way up to the Supreme Court, which the NSA's insulation from all but the FISA court has guaranteed is impossible.
That is a violation of principles so fundamental that I am literally at a loss to see how Hayden can even have said these things in public.
actually it's completely valid, and the Tor people make that absolutely clear.
it is designed to block *anyone* from accessing the information. ergo, any crime conducted over that network will be unprosecutable.
your argument is: because my (very inflated btw--not the one in US or worldwide human rights law) conception of privacy will be damaged by breaking strong encryption, law enforcement has to end.
you *are* saying that.
you can say it, but saying it in the name of law or human rights is facile nonsense, because your overt logic is that we have to give up the rule of law entirely to satisfy your notion of privacy--a notion that is only itself guaranteed by the rule of law you have just thrown out the window.
your logic entails: since the printing press had no effect on anything, then the internet will have no effect on anything, so we might as well stop using it.
just as a point of order, going against the MPAA is not the kind of law breaking they are concerned about. large scale drug trafficking and human trafficking, which kills tens of thousands a year each year worldwide, are more in the ballpark.
it is *definitely* not the case that strong encryption advocates and developers want to make law enforcement impossible.
why, just look at what the Tor developers say in response to Operation Onymous: they are full of praise for the innovative methods used to track down clearly illegal activity and make clear that Tor is not meant to be used to by pass such efforts:
and in the real world, actually they pretty much come out and say exactly what this article is mocking: they believe law itself is "illegal," and so are justified in developing tools to bypass it entirely.
plenty of places on this site where it's clear you oppose the very forms of compensation and minimal "rights holding" that make even this ghost of its former self work (a little). remember, "the grand unified theory of free," you're not supposed to make money from content at all, etc. but thanks for making me laugh!
as usual, some real love for the Constitution here at the site dedicated to ending government and the .. uh, Constitution.
While you and all your commentators want to rail on and on about "unwarranted surveillance," we still have NO--and I mean not a single ONE--example of "warrantless surveillance" leading to the prosecution of an American. Of course, any defendant with a good lawyer, and any moderately honest judge, would not let such a proceeding move forward, you can promote your radical right-wing Alex Jones views and get the script kiddies all scared.
Your analogy is wrong, plain and simple. Comey nowhere even IMPLIES--not even close--that citizens have no right to privacy and must expose themselves to constant review by law enforcement--ie, must not have "walls" to their houses. His sane, clear, message is that Apple and Google are creating mechanisms that put citizens beyond the reach of 100% legal, NECESSARY, WARRANTED law enforcement.
So what Comey is saying is, "the law says you can keep your walls and your house locked, but if the Court issues a warrant, we are going to come in." You are saying, "a warrant doesn't entitle you to search my premises." Well, yes it does, even in the Constitution, even in the Bill of Rights, and if you deny that, you absolutely are saying as Comey says, that you are "above the law."
when you say "it can't happen here," you mean that the US has always been a Nazi police state and we've always been living under it, and just not realized it? Masnick is (very inaccurately) describing the law that has been in place in the US from the beginning--and as usual, leaving out what he even relies on--the discretion and judgement of JUDGES to decide whether evidence collection complies with the 4th Amendment--to make his case that we should have no law enforcement when it comes to Google.
It's bullshit. This isn't Nazi Germany, it's no cause for outrage, yes some aspects of the law may need adjustment, as they always have and always will, but this goes way, way over the top.
please keep this up. your expertise on law enforcement and warranted searches is remarkable.
other than ending the US government (which is specifically and exactly what you are asking, with your bizarre view that warrants only allow for targeted retrieval of specific items, which is 100% completely wrong) what is your solution to this problem? You are reading the Fourth Amendment to prohibit law enforcement all together, whether you realize it or not.
EVERYTHING--EVERYTHING--you have written applies to a search warrant for the physical premises. Everything is fair game; no time periods, specific items (though what they are looking for can be specified), etc. Evidence of other crimes is ROUTINELY discovered and ROUTINELY used against the defendant. If looked at from a Murray Rothbard angle that might look like it is "coercive," but I don't know of anyone until Mike Masnick who treats it with outrage and contempt. Including courts of law and even defense attorneys.
Your statement "The Fourth Amendment prohibits unreasonable searches and seizures. It does not go on to say '...unless you get a warrant.' The warrant process is supposed to limit unreasonable searches and seizures by forcing law enforcement to detail," is absolutely, positively, clearly wrong in every way. Think of this: police routinely get warrants for suspicion of selling one drug, and find another. and guns. and stolen items. Guess what? They prosecute ALL of it, and--MOST IMPORTANTLY--judges do NOT throw the evidence out because it violates 4A. Warrantless searching is what is "unreasonable." The warrant makes it "reasonable." I note you cite no case law or statue to back up this hilarious and arch reinterpretation of 200+ years of US (and also common) law, because you can't.
One of the truly fascinating pieces about this is that we do have two other periods of time when we had military actions on domestic soil: during the early days of the republic through the War of 1812, and during the Civil War. All of you experts might enjoy reading through the history of military actions and intelligence operations during those two critical times in our history--because you may be shocked to find out that the very founding figures you often cite were MUCH less concerned about the Bill of Rights some of them WROTE being violated by much more directly invasive techniques and actions, covered by far less oversight and minimization, than we have today.
War sucks. I don't even agree that we should be at war right now. But you can't object to the techniques used by the military on the grounds that they don't conform to civilian law. They can't, they never have, they shouldn't, and to object to them is to say that the country of which you are a citizen should not have a military, which is a pretty freaking bad idea.
i am hesitant to weigh in with all the Constitutional lawyers here, but Baker is, of course, actually right, and doesn't go far enough, in fact.
First, all of you Constitutional lawyers seem to be forgetting three facts that would actually come up were a case based on this to go before the courts: a) the NSA is military, not civilian law enforcment, and the 4th amendment does not even directly apply to it--read that again, it's true, and you can be it will come up when/if something like this ever gets to SCOTUS; furtehr, it is pursuing, under Congressional/Presidential order--that is, order, meaning it must follow, an enemy who has struck inside the US using US citizens. That creates a highly unusual situation, but not a crisis. A crucial detail: military actions don't require warrants. b) Gellman's story actually documents the enormous amount of minimization NSA does to prevent citizens from being analyzed c) The distinction between collection and analysis you gloss over time and time again is completely vital, because no, it is not that terrible to privacy if NSA is holding on its servers but not looking at the same goddamn information that Google and Facebook and Twitter are retaining on their servers AND LOOKING AT IT.
Anonymous Coward writes:
Storing data on people without acquiring a warrant listing the particular person, place, and things to be searched and seized, is illegal.
Please cite for me which law or even amendment in the Bill of Rights is being violated when the military does this. You might want to check through Supreme Court jurisprudence while you're at it--essentially the entire Bill of Rights does not apply to duly-constituted military bodies and their actions. Ever heard of the Army or Navy getting a warrant to go after somebody, including US citizens who go over to the enemy side? Guess why they don't have to. Just guess.
now this is the Techdirt I know and love--notably to the right of the farthest-right Supreme Court the US has ever had.
the best thing here is portraying Aereo as a little guy, an upstart. yep, they are that right now. but had they been ruled legal, they'd have grown exponentially, then been bought out by, oh, to pick a company out of a hat, Google, the company Techdirt considers synonymous with freedom. And then they'd really be little guys--the biggest little guys you can name.
Aereo was and would have been as disruptive to corporate culture as Google is. Just one pot of investor money fighting another.
no, i have to admit I really also love the typical Techdirt "I'm doing the same thing so now I'm breakin the law" and "this means cloud computing is dead" stuff. Where else can I turn for analyses so obviously contrary to fact that they make my head spin as good as psychedelics once did? You know, like back when we had 1000s of comments here saying everyone was going to be put in jail because the Feds use the CFAA to go after everyone who violates website TOSs and is not alleged to have committed an actual crime along the way, despite not having a single instance of that ever happening, let alone passing the laugh test with a real live judge? The fantasy world of Techdirt is a special fantasy world indeed.
1) no, following an unconstitutional law is 100% legal under the ordinary definitions of these terms. It matters a great deal, in court, which it is and Judge Leon's opinion itself makes this very clear. It's not sophistry: everything about what eventually happens in this case will depend on it. I agree with you that the Patriot Act is unconstitutional, though "on its face" is suggesting there is a fact of the matter about that, and there isn't, or otherwise Congress would not have approved it and all judges would agree (and we already know they don't).
2. This is just plain wrong. 215 specifically forces the NSA to approach the FISA court for authorization. Granting that authorization provides the NSA with the legal authority to do what is authorized. Whether or not they are or should be held to a "higher standard of conduct" on a moral level, that court approval provides "on its face" evidence of legality, not illegality: it is literally what the law demands. Further, Judge Leon entertained and rejected the claim that 215 had been violated. That doesn't mean someone else won't make the claim successfully, but I find it much weaker than the Constitutional claim and highly unlikely to produce anything like the same wide-ranging reforms or elimination of program.
This is all going to court. This story is about court. Getting legal language correct *in court* is not sophistry. It is a requirement.
While I completely agree with John Fenderson's point, that makes it all the more important to be precise. Greenwald is not always precise about this, and he is a lawyer, which makes it worse.
Accusing the US Government of doing something illegal is a very serious charge. If it is, you should be able to specifically state which law has been allegedly violated.
I understand that in common discussions people sometimes use "illegal" and "unconstitutional" as synonyms, but they are different in very important ways. The Constitution is not law, it is something much more fundamental.
Furthermore, this piece is specifically about what a judge said, and one of the two judges quoted here specifically rejected the claim that the programs were illegal, while accepting the claim that they are unconstitutional.
I want the attack on the NSA programs to be credible so that we get them reformed or eliminated in the proper way. I don't think making very serious allegations that don't have facts to back them up, and mis-stating what judges say helps that at all.
Among other things, the penalties for doing something "illegal" are typically very different from those for doing something "unconstitutional." If NSA is in violation of Section 215, those specific actions might be declared illegal, while allowing NSA to go about its business. On the other hand, if Section 215 is declared unconstitutional, the whole program may be shut down. That is a highly preferable outcome in my opinion.
Just as a point of order, but it's an important one, I think.
In your title, you put "illegal" in quotation marks, as if it appears in the judge's ruling. But it doesn't appear in the quotations you provide, and my memory is that it doesn't appear in Judge Leon's ruling--in fact, that he refuses to hear the question of legality.
The word both judges use is "constitutional." As you say yourself, now referring to Judge Walton's decision, "Without the FISA court's intervention and the agency's ability to abide by the court's rulings, the NSA's collection would be illegal."
The fact that the FISA court does appear to have authorized these collection programs under 215 makes them ipso facto *legal*.
If the NSA has lied to the FISA court about the programs, it may well have violated 215 or other laws, though that's not clear and would depend on specific 215 provisions. It may have violated laws about providing true evidence to the Court. But those aren't the charges described here.
I am splitting these hairs because it's an important issue: most of the time, what are declared "unconstitutional" are *laws*. (not always; sometimes particular practices get declared unconstitutional, but mostly it is laws).
My general impression is that, especially given the FISA court approvals, much of what the NSA and other intelligence agencies do is *legal* under the Patriot Act and other US laws. There are exceptions, but Greenwald et al use the word "illegal" quite indiscriminately. The Patriot Act is bad law, but following it is legal, not illegal.
That doesn't mean the Patriot Act is Constitutional. I don't think it is. But until ruled on by the Supreme Court, under US law, that remains a matter of opinion. Further, were the Patriot Act to be ruled unconstitutional, that would still not make NSA actions retroactively illegal, except in a very extended sense.
Most of the time, it is *legal* actions that get declared unconstitutional. Once they are, the govt can't do them anymore, but that does not give anyone the right to retroactively charge those who were following bad law with doing something illegal. They weren't they were following bad law.
Most of the time, illegal != unconstitutional, and if we are talking about actual law, the two are close to mutually exclusive.
I wonder if LinkedIn (who is already involved in a lawsuit over the NSA stuff) and Slashdot have any legal basis to go after the government for effectively attacking their servers?
I wonder if this reflects your general knowledge of law. You can't sue the Federal Government (for causes other than those specifically mentioned in the Federal Tort Claims Act, which is reserved for negligence by government employees) under a thousand-year-old doctrine called "Sovereign Immunity." Which every law student learns about in year one.
You particularly can't sue law enforcement for damages created by law enforcement activities. Go ahead, check Lexis/Nexis--you won't find a case.
Those who take legal claims made on this site seriously should keep this in mind next time around...