-Submitted by David Drumm (Nal), Guest Blogger
Our 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.
““the right to be left alone,” is fundamental to a civilized society.
It’s a little too late for that to apply to Trayvon. Right, DS?
Gnvhv
rafflaw 1, July 13, 2013 at 1:33 pm
Good job Nal. It is amazing how far we have come and how quickly we got here. The idea of communications companies willingly opening their doors to the NSA and the government is maddening. I am getting tired of hearing that old meme that we are just trying to protect you!
…
=============================
It wasn’t that quick.
The military’s NSA gave the civilians an offer they could not refuse.
In 2000 Sixty Minutes exposed the military for spying on “every square inch” of the planet Earth way back then:
(Deja Voodoo).
How long did it take them to be able to do that?
Ten years?
Then they started in 1990.
Twenty years?
Then they started in 1980.
…
Anyway, everyone was praising the “warrior heroes” as they destroyed the constitutional structure of America and changed it to Stalingrad, Bullshitistan.
Oh, and watching the Kardasians.
FYI,
Posting a link to anything on Amazon.com will get a comment sent to moderation every time. WordPress does not like links that have multiple embedded links. Amazon is one of the worst about that, but sometimes links to news pages have the same problem. Generally, you are better off copying the text you want and pasting.
I have been watching the comments that get shunted to the spam filter, looking for a common pattern. One thing (aside from too many embedded links) is formatting. Every time I have submitted a comment in list form, such as with numbering, WordPress thinks it is spam.
Hope this helps.
Good job Nal. It is amazing how far we have come and how quickly we got here. The idea of communications companies willingly opening their doors to the NSA and the government is maddening. I am getting tired of hearing that old meme that we are just trying to protect you!
Darren Smith 1, July 13, 2013 at 12:30 pm
I wonder if there will come a time where the ability to spy on every ordinary American will be so pervasive the gov’t will actually be even more suspicious of those who choose to be “off line”.
=============================
Yep.
And the song will be “The Day They Took Old Fogies Down” …
Gary T 1, July 13, 2013 at 11:03 am
Also, the FISA “court”, should not be considered a court at all in the context of western style jurisprudence.
A legal court is one where opposing sides of any issue are heard, and opposing evidence is presented. The FISA court is more like a grand jury proceeding, where the arbitrators only hear from one side.
…
==================================
Well said.
It is as if the government goes to play pretend court with its imaginary, invisible opponent and says to the court:
Unreal is what it is. They be trippin’ …
I wonder if there will come a time where the ability to spy on every ordinary American will be so pervasive the gov’t will actually be even more suspicious of those who choose to be “off line”.
Nal,
Excellent…. And now Microsoft has allowed the NSA to access its user files and gave them the encryption software…
James Knauer:
when you and I agree on something, I get really scared. 🙂
Govt has it backwards. We must demand Congress mandate VPNs for all citizens that are secure to a person and stop threatening companies into WHAT? Giving away encryption keys?!? This is madness.
The Constitution does not have any stamps on it which read, “null and void when we get to the digital age.”
The Big Lie — the lie that will be the basis for civil rights struggles in the 21st century — is that there is “no more privacy” in the digital age.
Utter and complete B.S. Any elected official who says this must be removed from office. The tech has been here for some time to enforce privacy to a person. Only rank cowardice prevents its implementation.
Those raised in the digital age are not going to keep this going when they get the levers of power. Data purges will be coming.
Also, the FISA “court”, should not be considered a court at all in the context of western style jurisprudence.
A legal court is one where opposing sides of any issue are heard, and opposing evidence is presented. The FISA court is more like a grand jury proceeding, where the arbitrators only hear from one side.
The FISA court theoretically is supposed to weigh the advocacy of the government against the inchoate, theoretical entity of the American national best interests as embodied by the US Constitution and the statutory laws of Congress, who has no advocate present to represent it.
A very strange set of adversarial parties. The government as a party is presumptively already there to represent the U.S.
Add that to the fact that EVERYTHING of substance, pleadings, ‘arguments’, evidence, warrants, and decisions, are all secret and not subject to review – and you wind up with some government agency that purports to be a court in name only, but in no way has any of the fundamentals needed to be considered a judicial court.
The 800 lb. gorilla in the room is that it is THE MILITARY (the NSA is a military outfit, not civilian) that is collecting this data on the civilian population.
The schizophrenic portion of this is that consistently the people, when polled, say that the military is the most competent American institution, when compared with civilian businesses and with civilian government.
Thus, we have a validation of this quote:
nal:
good post.
My question is can you ever have a large benevolent government?
In my personal utopia the government would be protecting us against data collection from the likes of Google and Verizon.
When corporations get into bed with government as intimately as they did and do with this whole NSA domestic spying program, that is one of the fundamental elements of fascism.
Nal, Good post. I recently had a discussion on another thread on this topic. What is almost as infuriating as the collection of information by the govt. is that they always assure us, after they’re found to be gathering info indiscriminately, like the recent NSA debacle, that “You need not worry, we won’t abuse it, and it’s secure.” Too many folks believe that lie, although I know tech saavy younger people, who will be leading this world soon, almost all know that’s bullshit. Government, and non government people are entrusted w/ this wealth of information. And, we’re not just talking a handful, we’re talking thousands. All humans fall victim to the seven deadly sins. No background check, no security clearance, will find people not vulnerable to those seven deadly sins. That means not only are we abused by the collection of information, we all should know it’s use will be abused, and it is NOT secure.
Glad you posted about this subject. I had been gathering information about FISA and NSA.
*****
In Secret, Court Vastly Broadens Powers of N.S.A.
By ERIC LICHTBLAU
Published: July 6, 2013
http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html?_r=2&adxnnl=1&adxnnlx=1373202046-kTkDtkA/26AWJY6clXkm+w&
Excerpt:
WASHINGTON — In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.
The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.
*****
Secret rulings from America’s shadow Supreme Court legalizes spying in one-sided hearings
Cory Doctorow
Jul 7, 2013
http://boingboing.net/2013/07/07/secret-rulings-from-americas.html
America’s 11-judge Foreign Intelligence Surveillance Court (FISC) has made more than a dozen classified rulings that vastly expanded the powers of America’s spy agencies, operating under an obscure legal doctrine called “special needs.” Under this doctrine, established in 1989 in a Supreme Court case over drug testing railway workers, a “minimal intrusion on privacy” is allowed in order to help the state mitigate “overriding public danger.” FISC’s rulings have widened this ruling to allow for wholesale spying in the name of preventing “nuclear proliferation,” as well as terrorism. The NYT calls this a “shadow Supreme Court” but notes that FISC proceedings only hear from the government — no one presents alternatives to the government’s arguments. Much of the expansion of surveillance turns on whether metadata collection is intrusive (I think it is):
The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.
This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”
Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.
The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.
“If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.” – James Madison
How much does the government pay in our tax dollars to Skype and Microsoft? How much does Saint Bill of Microsoft make from this transaction? Just asking but I guess that is classified!
If you look at the Edward Snowden releases, Skype has working closely and cooperatively with the spy bureaus. NSA said they couldn’t have been able to rip their encryption without the help of Skype and now Microsoft. These companies are simple pawns of government. Corporations don’t value the Constitution, privacy, or humanity. They only value profit at all costs and if that means ponying up with government to invade everyone’s privacy, then so be it. Democracy is dead when the corporation and government work closely together, legally or not, and start herding the people and demanding all perform as the government/corporate complex sees fit.