What Aren’t They Collecting?

-Submitted by David Drumm (Nal), Guest Blogger

HooverOur thoughts, but they’re working on that. The right to privacy, or from Justice Brandeis’s overly broad understanding: “the right to be left alone,” is fundamental to a civilized society. We each choose the amount of information about ourselves we want to disseminate to other members of our society. Each of us has different levels of comfort about when and which information is disseminated and to whom. Some information that we would share with our best friends, we would not want divulged to a complete stranger.  In most situations, the information most of us would share with a complete stranger would max out with our first name. Yet, without our knowledge or consent, because we live in a technological society, our personal information is being vacuumed up by  strangers who exercise the power of the state.

Georgetown law professor Randy Barnett notes that:

By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call “informational privacy.”

Back in the Founder’s time, paper was state-of-the-art for containing information so “papers” contained a person’s information. Today, in addition to paper, we have digital media to contain our information. Without probable cause, the blanket seizure of data on every American is unconstitutional.

Judge Richard A. Posner contends that this data collection is not a grave threat to civil liberties. He writes:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy.

However, the civil liberty that is threatened is the right to be secure from unreasonable seizures. The vast amounts of personal data can definitely be seized by machines. That’s the genius of the Fourth Amendment, it kicks in at the seizure level, before privacy is even a consideration. No seizure, no loss of privacy.

Recently the FISA court has been using the legal principle of “special needs” to exempt terrorism cases from the Fourth Amendment’s requirement for a warrant. The special needs doctrine was enlarged in the Supreme Court’s 7-2 decision in the case of Skinner v. Railway Labor Executives’ Association (1989). In that case, the Federal Railroad Administration was given authority to conduct drug tests of railroad personnel because it had “‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable cause requirements.”

In his dissent, J. Marshall wrote:

the damage done to the Fourth Amendment is not so easily cabined. The majority’s acceptance of dragnet blood and urine testing ensures that the first, and worst, casualty of the war on drugs will be the precious liberties of our citizens.

A slippery slope is never more evident as when you’re at the bottom looking back.

No communications system is exempt from collection. Even the vaunted Skype with its hard to intercept peer-to-peer transmission and encryption is no longer secure. To the dismay of many, Microsoft paid $8.5 billion for a company which posted a yearly profit of $264 million and had a long-term debt of $686 million. In a recent security check, researchers created four web sites solely for the purposes of the check. The four links were sent over Skype. Two were no clicked on, but the other two were accessed by a computer with an IP address belonging to Microsoft.

H/T: Daniel J. Solove (pdf), Glenn Greenwald, Conor Friedersdorf, Eric Lichtblau, John Wesley Hall, J.D. Tuccille, Dan Goodin.

40 thoughts on “What Aren’t They Collecting?”

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  2. Yes, MK…the FBI tried to entrap me in one of these email scams because of some articles and my book i was writing… MidEast ChessBoard…critical of their having prior knowledge of 9.11…but they dropped the charges because i did nothing wrong…and would not investigate the canadian group involved…even though i gave them these canadian emails…..and they would not release information on this group after i filed several FOIA –
    Privacy Act …suits…FBI corruption…

  3. “A slippery slope is never more evident as when you’re at the bottom looking back.” That’s one of the best lines I’ve ever seen. Brilliant.

  4. recently watched a dateline show about the nigerian email scams, a reporter interviewing an FBI agent pointed out that the FBI has access to these emails and why weren’t they doing anything about these scams, FBI agent responded that they were focused on terrorism.

    Meaning, even though they have access to information that people are breaking the law and who is breaking the law, they are being very selective as to who or what type of crimes will be investigated.

    As someone previously mentioned in these comments, like banksters, etc., etc.

    I read somewhere that over 1 million people are working for NSA as contractors. What’s to stop someone from using this information to scam others, to use info for investments, etc., etc.

  5. Mr. Turley, in the Katz v. UNited States case… http://www.oyez.org/cases/1960-1969/1967/1967_35 … the Supreme Court ruled that Katz was entitled to 4th amendment protection for conversations over a pay telephone…give us a short constitutional law course that ties the present NSA, Drone, surveillance controversy in with this case, the
    the JOnes v. United States case, the omnibus act, and patriot act

  6. lotta, Your earlier post about Zimmerman and why he should be acquitted, eaten by the carnivorous wordpress, was obviously prophetic. Mr. Turley’s analysis the other day was spot on.

  7. LK,

    Did you ever watch “Max Headroom”? Their tagline was “20 minutes into the future”. “Person of Interest” beats them by 10 minutes. The only thing between that show and reality is Finch’s semi-sentient AI (that is slowly breaking its shackles to develop a persistent memory) to do the information processing.

  8. (I could use an edit tool) LOL
    Oh well, you get what you get. And now, a rant.

    America, Home of the …

    SECRET appointments made by the Chief Justice of the USA to the
    SECRET Court called the FISA Court (FISC), which rules on
    SECRET Laws concerning how to hold
    SECRET interpretations about Pentagon
    SECRET policies concerning how the NSA issue
    SECRET orders(NSA letters) to the FISC to make
    SECRET decisions concerning the
    SECRET authorization to gather information via
    SECRET spying techniques used in the process of the
    SECRET gathering of personal data on Americans

    … Free and Open Society?

  9. Interview with Whistleblower Russ Tice
    Published on Jul 9, 2013
    Abby Martin talks to Russell Tice, former intelligence analyst and original NSA whistleblower, about how the recent NSA scandal is only scratches the surface of a massive surveillance apparatus, citing specific targets the he saw spying orders for including former senators Hilary Clinton and Barack Obama

  10. Thanks Nick.

    I lost another posting on the “Reasonable Doubt: Why Zimmerman Should Be Acquitted” thread, could it be dug out and put up by some kindly moderator please?

  11. Who cares about all this constitutional stuff?

    Where’s Snowden and what is our country doing to track him down?

    That’s the real story; right?

  12. The big lie: We are just collecting metadata. (I increasingly feel the need to use all caps- I think that is a sing of some mental disorder)

    That is a lie.That is a lie.That is a lie.That is a lie.That is a lie.That is a lie.

    It is all being collected. The latest revelation by Snowden through Greenwald detailing the Microsoft assistance should blow that out of the water but the information has been around for a while. (I’m re-posting this from yesterday:)

    The latest revelation from Snowden’s cache of information shows the intimate level of cooperation between the government and Microsoft:

    “The documents show that:
    • Microsoft helped the NSA to circumvent its encryption to address concerns that the agency would be unable to intercept web chats on the new Outlook.com portal;
    • The agency already had pre-encryption stage access to email on Outlook.com, including Hotmail;
    • The company worked with the FBI this year to allow the NSA easier access via Prism to its cloud storage service SkyDrive, which now has more than 250 million users worldwide;
    • Microsoft also worked with the FBI’s Data Intercept Unit to “understand” potential issues with a feature in Outlook.com that allows users to create email aliases;
    • In July last year, nine months after Microsoft bought Skype, the NSA boasted that a new capability had tripled the amount of Skype video calls being collected through Prism;
    • Material collected through Prism is routinely shared with the FBI and CIA, with one NSA document describing the program as a “team sport”.” continues


    One of the things in the article which is not included in the bullet points is that Microsoft worked with NSA to resolve an issue that linked the images with the type- apparently their was a problem with that. If you made a call the image wasn’t captured. Millions of phone calls with face to face images that are now collected. A burner won’t save you.

    “One document boasts that Prism monitoring of Skype video production has roughly tripled since a new capability was added on 14 July 2012. “The audio portions of these sessions have been processed correctly all along, but without the accompanying video. Now, analysts will have the complete ‘picture’,” it says.”

    In our discussions regarding facial recognition software the question arose ‘where are they going t get the pictures to establish a large database of faces to compare other pictures to?’ There you have it. And if you are aware that ‘metadata only’ is rank BS, you can bet that every image put up on Facebook etc. is collected as well.

    Hmmmm, if they’re collecting calls and mail real time and can zero in certain calls/mail based on a flagging system, can they screw with those calls? Just wondering

    Yea, yea, it’s only a TV show but it’s an adequate rendition of the security state’s wet dream IMO, and we just keep moving in that direction.

  13. Elaine,

    Another post on this topic is warranted. 🙂

    Don’t let my post stop you from posting.

  14. Yes. OS, that IS an extremely important insight. and it’s so relevant to the main issue – as expressed in the first paragraph of the article.

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