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THE FOURTH AMENDMENT V. THE SURVEILLANCE STATE: A SYNOPSIS AND A SOLUTION

What can the government lawfully learn about us, without our consent or a court warrant? That is the question explored below. The answer, constitutionally, is largely confined to the Fourth Amendment:

"The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, 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."

JUDICIAL INTERPRETATION WITHOUT A COMPASS

The original language is clear, but its judicial interpretation has a stumbling history. It wasn't until 1914 – more than 120 years later – that the Supreme Court affirmed the amendment's plain intent that a warrantless search of a home is unconstitutional, while adding as a deterrent that evidence thus obtained is inadmissible. It was 1961 before Fourth Amendment strictures were applied to state and local government, and 1967 before warrantless telephone wiretaps were outlawed. In 1976, reversing course, the Supreme Court decided that government could examine our bank records without warrant; in 1979, that the government could track our telephone use without warrant. Since then, Fourth Amendment rulings have (more times than not) eroded privacy protections, whether about searches on the street, from the air, using remote devices, in a car, upon arrest, detention, even a traffic violation. Now in the post-9-11 era, given the Patriot Act and a surveillance state that has understandably swelled in response to terrorism, the judiciary continues to stumble along. Why? Because it lacks an overarching constitutional interpretative principle – a legal compass – to guide its Fourth Amendment decisions.

How can we know this? Because the pair of Fourth Amendment principles most often employed as interpretative precedents are either misapplied (in the case of #1 below), or simply wrong (#2):

1. Government needs a warrant to search in a context where the public has a "reasonable expectation of privacy."

2. When communications between parties use a third-party intermediary or facilitator (e.g., a phone company, internet provider, bank), the information the third-party is given to know is not private; therefore the government does not need a warrant to search it. This is commonly referred to as the "third party doctrine."

THE ESSENCE OF PRIVACY, AND THE MEANING OF 'SEARCH'

Before we examine these two legal principles, the notion of privacy (which pervades the discussion) should be clarified. Take, for example, the way we use the word in the expression "private property." When we say "private property" we primarily mean (among other things) a space from which others can be physically excluded. That is the essence of privacy: the ability to exclude others from a physical area like a piece of property, or to exclude others from control over or knowledge of aspects of one's own life. The exclusion of others from aspects of one's life can take many forms. It may mean simply to be left alone, unmolested; or the ability to make decisions for oneself (abortion, suicide); or in the case of searches (our subject here), the ability to keep information about oneself secret from others. That is what we consider our private realm: to restrict others from entering our private space, or making decisions for us and dictating our actions, or even acquiring information about us we wish to keep to ourselves.

Also on the subject of words and concepts essential to this discussion, clarity should be brought to the often tortured legal meaning given to the notion of a 'search.' In common parlance, whenever we search, we are looking for something, or more generally, seeking to acquire information. It doesn't matter how the search is conducted. It may be done in any manner, with any device, at a distance or not. It can be done in a laboratory, using the internet, or with a telescope, by looking in a desk, or over a fence, or digging in the ground. Whenever and however we are looking for something (perhaps we know not what), we are searching for and seeking out information.

Judicial interpretation of the Fourth Amendment has unnecessarily confused the issue by conflating the notion of a search with that of a physical invasion. So in some key legal decisions, the outcome has turned on whether an investigation was done remotely, at a distance, without physically entering or invading a "constitutionally protected area," in which case it has not been considered a search, and thus not subject to Fourth Amendment warrant strictures. Using this ruse, a bug placed in one's living room would be considered a search, but a remote high-tech listening device used at a distance might not be. This is a legal sleight-of-hand, and should be abandoned in favor of the commonly understood meaning of a search: any effort intended to look for something.

1. "A REASONABLE EXPECTATION OF PRIVACY"

In Katz v. United States (1967), a man making calls from a phone booth, involving betting transactions, was taped without warrant by a bug attached to the outside of the booth. The evidence thus acquired was thrown out at the Supreme Court, where it was reasoned that the man, being in a phone booth, had a reasonable expectation of privacy. This was a landmark decision, because he wasn't in his home, just in a space that was obviously designed for a modicum of privacy.

The legal reasoning overshot its target however, because it depended in part on discerning the man's actual expectations of privacy. That can't be the deciding factor, because another person in exactly the same position, behaving in exactly the same way, only with possibly a different set of expectations, shouldn't receive an opposite legal outcome. Besides, who can really divine what one person's expectations actually were at the moment of surveillance? So long as the person took the elementary precautions to ensure privacy (closed the booth door, didn't shout into the mouthpiece or otherwise draw undo public attention to his conversation), the assumption is that privacy was expected.

The kernel of legal reasoning that had staying power wasn't the individual's expectations; rather it was the justices' recognition that society has a reasonable expectation of privacy when entering a phone booth, or performing some other activities. Like a bathroom stall with a door, a phone booth is recognized by society as private by design.

Here we arrive at the crucial question about this legal yardstick: is it society's expectation that some situation or context is in fact private, or that it should be private? In other words, is the legal yardstick – society's reasonable expectation of privacy – factual ("it is private") or normative ("it should be private")?

FACTUAL EXPECTATIONS OF PRIVACY: A FOURTH AMENDMENT TRAPDOOR

Simply put, it can't be factual, because we are rapidly entering a technological age where anything and everything can conceivably be surveilled. Private conversations and physical activity anywhere, including inside homes, can already be remotely and minutely searched and recorded. Our unexpressed thoughts are the only things in our lives that we can factually expect to be truly private, and for all we know the clock may be ticking down on that final frontier as well. Bottom line: any legal principle that hangs on what society can actually, factually, expect to be private, given the rapid advance of surveillance technology, would push the Fourth Amendment through a trapdoor. Privacy rights cannot be inversely proportional to the march of technology, without shriveling to nothing.

NORMATIVE EXPECTATIONS OF PRIVACY: A FOURTH AMENDMENT PRINCIPLE

If the answer to the question above is that society has a set of reasonable expectations of what should be private, and that those expectations should provide the yardstick for adjudicating Fourth Amendment issues, what if we (society) disagree on what should be private? What if there is no general consensus on a particular privacy issue?

If there is no societal consensus on a privacy issue, then on that issue, society has no reasonable expectation of privacy. We do not need an obviously unattainable unanimity, but an overwhelming consensus, in order to determine that society has a reasonable expectation of privacy concerning an activity or context.

There are many examples of privacy consensus across society. We agree that what we do in our homes should be private, if we pull our shades; that our conversations should be private, if conducted out of others' earshot; that our dealings with our doctors, or shrinks, or lawyers, should be confidential; that neighbors should not look at or open our mail; that our computers and electronic devices should not be hacked; that doors on private bathrooms, and public bathroom stalls, should be lockable; and on and on.

Indeed, a working definition of "reasonable" expectations is that society has a consensus; if there is no consensus, the expectation is almost by legal definition not reasonable. Almost, but not quite, because if some of us can convince most of us that something should be considered private, and thereby change people's minds and form a new consensus, a new "reasonable expectation of privacy" is thereby created, and the privacy realm is expanded.

Our society's consensus on privacy issues has inevitably evolved over time. In fact, contrary to some recent punditry, our society has been rapidly expanding – not shrinking – its privacy-realm consensus over the last decades, evolving toward a less invasive, more private society. Routine prying questions from yesteryear, when seeking a job or housing or medical assistance or an education or social benefits, are now piles of illegal relics. Over the same decades we have even had a flock of fairly controversial legal innovations, such as exclusionary rules of evidence, or Miranda rights, or contraceptive and abortion rights, that arguably did not reflect a societal consensus, but that nevertheless expanded the privacy realm for individuals in a variety of directions. Privacy rights, consensus or no, like them or not, have been expanding throughout our history.

A ONE-STANDARD "PRIVACY PRINCIPLE" FOR BOTH THE PUBLIC AND GOVERNMENT

As a society, we have an elaborate (if often unspoken) consensus on reasonable expectations of privacy between ourselves. We do not have a separate set of reasonable expectations of privacy with respect to the government. As we do not consider it appropriate for the neighbor to read our mail, neither do we consider it appropriate for the government. We do not consider it appropriate for either our neighbor or our government to peer in our windows, or over a bathroom stall wall, or hack our computers, or listen in on our phone calls. Unless convinced otherwise, we simply do not operate – nor should we – with two distinct sets of expectations about what we should be able to keep private from the public on the one hand, and from the government on the other. The privacy standards that we maintain between ourselves, as members of society, are exactly the privacy standards that should be maintained between ourselves and our government, absent a court warrant based on evidence of criminal activity. There is no other standard, and should not be, because government, like the public, is a collection or organization of persons. This one-standard privacy principle can be stated in general form:

"Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant."

By using society's consensus on reasonable expectations of privacy, applied as one unified standard for both the public and government, the courts will have a guiding principle that we are all familiar with, and automatically use every day to conduct our lives within society, to decide Fourth Amendment issues. Most important, it would destroy the pernicious "third party doctrine" that is currently used to legally condone an ever-expanding surveillance state.

2. THE THIRD PARTY DOCTRINE: THE MOTHER OF ALL PRIVACY SLIPPERY SLOPES

The third party doctrine – that the information provided by private communicants to a third-party intermediary is not itself private – is not a common sense doctrine, in that it is not intuitively obvious, nor based squarely on our reasonable expectations of privacy, and so must be motivated by looking at its modern impetus in two Supreme Court cases from the 1970s.

PRIVACY OF BANK RECORDS

The first, United States v. Miller (1976), involved the issue of whether the government may lawfully examine one's bank records without a warrant. A 5-4 majority upheld that ability, with the following reasoning:

"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed."

This statement is erroneous in a number of ways. Its first sentence is based on reasoning from a Jimmy Hoffa case, where Hoffa unsuccessfully tried to have testimony from an undercover FBI informant excluded from his trial. Apart from tellingly analogizing the behavior of an FBI mole to one's bank, it states without qualification that any information revealed to a second party ('another,' even a doctor, shrink, or lawyer) can be lawfully revealed to the government, a nightmare scenario clearly to be avoided. The second sentence then slides from a discussion of a second party to that of a third party, which is presumably the position a bank assumes with respect to a depositor.

A bank is actually only a second party to a depositor, holding his or her money for safekeeping. In taking one's money from underneath the mattress into the bank to deposit, there is no third party. The bank becomes a third party if it is used to cash a check, or pay by check, or in our time, to also pay bills online. In other words, a bank can be solely a second party, if all one has is a savings account (or CDs, etc.). So the third party doctrine does not necessarily apply, while the second party justification is based on an FBI mole analogy, where the target is suspected of crime. Yet the Supreme Court ruled that the government may examine our bank records without a warrant, and without suspicion of a crime.

The minority dissent, now 37 years old, made a prescient warning:

"Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently, judicial interpretations of the constitutional protection of individual privacy must keep pace with the perils created by these new devices."

PRIVACY OF COMMUNICATIONS 'METADATA'

The Supreme Court decision most relevant to the current discussion of state surveillance is Smith v. Maryland (1979), which upheld the government's ability to gather information about one's phone calls, other than the words themselves, without warrant. In today's discussion, the words are referred to as the "content" of the call, while everything else (the time and length of the call, the telephone numbers involved and to whom they're registered, the communicants' locations during the call, etc.) is known as the "metadata." Current reasoning is that this Supreme Court ruling provides the best constitutional justification for warrantless surveillance of metadata, not only for telephones (land and cell), but also for all internet communications, or indeed any communications using a third-party intermediary. The reasoning is easily analogized to all non-cash financial activity, including credit and debit card transactions, as well as library borrowings, web browsing, satellite and cable television channel surfing and PPV, and USPS and special delivery mail and packages, all of which require third-party intermediaries.

Here is the kernel of the majority's opinion:

"When petitioner voluntarily conveyed numerical information to the phone company and 'exposed' that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police."

And from a dissenting opinion:

"I think that the numbers dialed from a private telephone - like the conversations that occur during a call - are within the constitutional protection recognized in Katz. It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy." (A pen register was the device of that era used to surveil telephone metadata.)

The dissent correctly points out that collection of telephone metadata violates society's reasonable expectations of privacy, in 1979 as it does 34 years later (witness the recent public outcry). But that is not the elephant in the living room.

Look back at the Supreme Court majority opinions cited, where "...the Fourth Amendment does not prohibit the obtaining of information revealed to a third party..." and the public assuming "... the risk that the company would reveal the information to the police." Where's the elephant?

CONTENT AND METADATA ARE ALL THIRD PARTY INFORMATION

When one makes a phone call, or sends an email, or uses a social networking website to communicate with others, the information shared with the third party intermediary is not merely the metadata. It is the content of the message as well. That is the communicants' entire purpose for using the intermediary, to have it convey the message, which naturally cannot be transmitted without the message's actual content. So that the reasoning used above to justify surveillance of metadata, works equally well for surveilling content. Content is no less "exposed" to the third party's "equipment in the normal course of business" than is the metadata. And in the case of written internet communications, it is no less preserved.

There is no way around the fact that when communicants use a third-party intermediary, as we all do many times daily, all of the information – content and metadata – is communicated to and through the third party. And by the language of the controlling Supreme Court decisions cited above, it is all subject to warrantless search. If the third party doctrine were true, and universally and equally applied, all information held by a third party would be subject to warrantless search. Very little of our lives would remain private.

THE THIRD PARTY DOCTRINE V. THE PRIVACY PRINCIPLE

Whenever one uses a bank, credit card company, telephone or internet provider, library, postal or delivery service, doctor, shrink, lawyer, pharmacist, accountant, even a store or restaurant, one has a reasonable expectation that the third party will respect one's privacy, by not revealing the details of one's communications or transactions with other members of the public. These fiduciary relationships of trust are so universal and implied that we don't think about them. But they're there. Next time you get to the front of the line at the bank, or doctor's office, or pharmacy, or post office, or grocery store, ask the person helping you to tell you some of the juicy details of the last person they served, like why they're seeing the doctor, or what prescriptions they just picked up, or who they just mailed, or their credit card numbers, or even their name. Chances are the next person you'll be speaking to after that performance will be a security guard, and then the police. Our society takes very seriously the almost ubiquitous fiduciary obligations of confidentiality we assume in our relationships, whether personal or professional, business or pleasure.

In other words, the reasonable expectations of privacy we have developed toward one another are the polar opposite of the third party doctrine, which gives government warrantless and secret access to all information about us held by third parties, information that those parties are expected in normal circumstances to jealously protect from public view. This collision course – between the public's reasonable expectations of privacy and a mistaken legal doctrine blessing an ever-expanding surveillance state – can be avoided by employing the privacy principle stated above:

"Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant."


Comments

The judicial encroachment upon privacy pales in comparison to how fast the people allow their representatives to pass laws that eliminate most expectancy of privacy. Cell phone prohibitions & sear belt laws are excellent exampes.

This -Don Bacon's- argument is on solid ground. As creatures of the state, one expects freedom to yield when the black robes pass judgement.

Tootles!


As usual, a very well thought out and expressed piece by Mr Bacon. His analysis of and conclusion for the basic 'rights' to privacy we expect are well laid out, clearly expressed and at the heart of the matter - not to mention thought provoking.

I agree with your conclusion, btw.

When one strips away all the posturing, the blow hards, the talking heads and of course the political BS (not to mention the $Billions$ of dollars spent annually to perpetuate and expand these programs), Don has provided us with the essence of the core point.

Thank you Mr Bacon.


If the NSA can detect networks of terrorists based on Metadata, would not law enforcement be able to detect networks of child molesters using the same data and techniques?

What about networks of drug dealers or sex traffickers?

And there in lies the danger. How could any of us argue against using that Data in order to prevent the exploitation of children without being called something nasty?

And if we can use the surveillance state to protect children, who else can we protect using this database and technology?

Are any of us willing to live with the increased possibility of undetected risk of terrorism, child rape, and human slavery?

I am.


Me too.


The analysis of the state of privacy law provided by Mr. Bacon is as learned and logical as any I have seen or hope to see. I would hope that we would all agree with his conclusions as well.

The decision in Smith v Maryland was wrong -inexplicably upside down. The idea that one willingly waives rights of privacy by communicating through the only means available short of a personal meeting behind closed doors is no more than an excursion into bootstrapping – and bootstrapping, as we all know, is quite impossible.

If I were to quibble with Don at all, it would be with this “What can the government lawfully learn about us, without our consent or a court warrant? That is the question explored below. The answer, constitutionally, is largely confined to the Fourth Amendment” It would, of course be just a quibble as the statement is correct – virtually all discussion of privacy issues engendered by revelations of our government keeping tabs on what we say, when we say it and who we say it to have as a basis the Fourth Amendment. The problem with that, in my mind, is that such discussion should not be so limited. It ignores a First Amendment guarantee.

The First Amendment reads, in relevant part, as follows “Congress shall make no law --- abridging the freedom of speech. To abridge is to curtail. To curtail is to cut short or reduce. I don’t see how it can be argued that knowing that the government and its law enforcement arms are recording what you say and when and to whom you say it throws a damper on your right to say what you please with only a few exceptions. Laws that permit such intrusions abridge the right of free speech. I don’t know how any more could be done to abridge free speech rights. ALL of us in a lifetime of communicating with others say things that a government or law enforcement agency can make hay of if it chooses to do so. I believe that if the right people are irked – that choice is likely to be made.


Oops.

"I don’t see how it can be argued that knowing that the government and its law enforcement arms are recording what you say and when and to whom you say it throws a damper on your right to say what you please with only a few exceptions. Laws that permit such intrusions abridge the right of free speech."

Should read "does not throw a damper ---"

Also - forgot to close quote from the First amendement.

I was being careful too. Imagine if I hurried!


Amazing analysis Don. I totally agree.

However, I think you, and the dissenting opinion, missed one key point, one which exposes the majority opinion as complete BS:

Here is the kernel of the majority's opinion:

"When petitioner voluntarily conveyed numerical information to the phone company and 'exposed' that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information to the police."

The problem with that core excerpt from the majority opinion is that it is simply and nothing more than circular logic. They're saying that because the company might turn over the info to the police, that one don't have an expectation of privacy. Yet the only reason that the company might turn over the information to the police in the first place is because of the incorrect, circular logic spewed fourth by the court. So it is the Court itself which has unconstitutionally and unilaterally demolished privacy expectations. If not for the incorrect (majority) ruling, companies would not be turning over information to the police (without a warrant), and there would be an expectation of privacy.

Little known are requirements imposed on Internet Service Provides to retain some logs for very long times, and in some cases ISPs which didn't create the government-desired logs in the first place have been required to create and retain them for long periods. These are logs which are normally used just for problem diagnosis, and under normal business conditions would be retained for a few days or so. For a decade or two the government has required that these logs be retained for YEARS, just in case the government might want to look at them.

As to the "catching terrorists" desire, I'm going to stand firm on my opinion that the Constitution does not apply to non-citizens, therefore I have no problem with government spying on non-citizens.

As to catching other domestic criminals, tough beans. Where does that slippery slope end? Who decides which crimes rate violating the Fourth Amendment?

I nominate Don Bacon for Supreme Court!


Ditto! Thank you, Don, for an excellent synopsis.

This probably means that you could rise a bit higher on the government's surveillance list, though...


I'm not sure I'm comfortable with the proposed solution. The privacy principle Don states is a great try:

""Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant.""

But "testing" it against several scenarios reveals weaknesses.

Example #1. Suppose I run a company that is able to see all your internet searches, and can record every page you click on. My company can record how long you are on each page, etc. My company can also see all of your e-mails, coming and going. I can legally record them for various purposes. Perhaps I exchange the information I have with other companies to build a rich database of interaction, including social network posts and lists of friends, even address books from your computers and mobile devices. Suppose I can record all of your phone calls--I don't eavesdrop I just store all the calls and use use the data to build interesting models of consumer behavior, using voice recognition to find key words and phrases.

Example #2: I run a company that tracks people's movements without them being aware that they are being tracked. I use their mobile devices to do some of the tracking. I use traffic cameras and the like to add additional value. I even have mobile cameras roaming the streets showing you the front of their houses and I use satellite images to show you their houses from above. I dream of someday having live images for both. I can start following you at work, watch you check out at the Safeway (and examine your receipt, noting unusual purchases like pregnancy tests or condoms, though my records show your wife has had her tubes tied). I can follow you in your car as you drive home, right up to your front door. And as soon as you sit down at the computer I can follow you again.

As I hope you can see from my examples, all of the information collected by the government is their controversial PRISM program is already being (or soon will be) collected by corporations. And directly or indirectly it is all for sale. The government is not doing the actual surveillance in these programs, they are just obtaining the existing information from the corporate surveillance system.

The root problem, once you look at how easy it is to get a court order, after you put aside trying to define "privacy," after you read through and digest the constitutional history, seems to boil down to this:

The Bill of Rights is designed as a check on governmental power. It does not apply to corporations. Indeed, more and more corporations are receiving *protections* under the Bill of Rights, not constraints.

We are already well into the surveillance state, lawful and with your permission. The government is just a couple of years behind.

--Darin


Darin, you are arguing that the government shouldn't be prevented from gathering information that private corporations aren't prevented from gathering. For starters, that's an irrelevant argument. I can refuse to do business with companies whose policies I don't like. In particular, I have a gmail account but I don't have my address book in gmail. I have not told Google what all my own email addresses are. And so on.

Maybe the reason that Congress doesn't clamp down on those companies is specifically because those companies are then used as tools by the government to circumvent restrictions that people would otherwise want. In other words, Congress specifically allows it knowing that it's a back door for the government to acquire information that people would otherwise object to the government obtaining without due process.

Most or all of the companies (with the notable exception of Google) willingly and enthusiastically turn over any information that the government requests. Why? Maybe because if they refuse, the government might prevent them from accumulating that information in the first place.


Darin brings up a couple of great issues. Let's go through each example to see how our reasonable expectations of privacy coincide or collide with certain corporate practices or aspirations.

Example #2 I'll call the Google problem. Imagine Google Earth Gone Wild, where rather than just satellite and street photos of everywhere on the planet, Google develops the capability to have realtime video (with audio) of everything and everyone all the time. In other words, a fully recorded planet. How does that comport with our notions of privacy?

As creepy as it may sound to some, I don't think recording everything possible in public spaces bothers most people that much. Bigger cities use public surveillance cameras widely; London is practically blanketed with them. Besides, curbing public photography/video is a slippery slope. I'll use Darin as an example: he likes to take photos, including of things in public, maybe sometimes even without people's foreknowledge or permission. Nothing wrong with that. Now imagine a Darin Gone Wild, who wanted to take photos and videos of everything he possibly could in public, 24-7, everywhere. That would be pretty weird, but frankly not the sort of thing we'd want to illegalize. When we're out in public we usually don't expect any special privacy.

There are plenty of things Google Gone Wild could try to do that I think should be illegal, as they would not comport with our reasonable expectations of privacy. Suppose Google started using cameras that saw right through our clothing. Not acceptable. Or took shots through windows and walls, of our transactions in stores or activities in private spaces like homes. Again, not acceptable. We don't want the government doing that, and we don't want Google doing it.

Here's a gray-zone Google Gone Wild issue: should Google be able to have a satellite taking constant video of your home and backyard, and post it online in realtime for all to see? If (when) that happens, I believe we as a society will want to make that illegal. It's unnecessarily invasive. Doesn't serve a social purpose I can discern, while depriving us of any possibility of outdoor private space.

Example #1 I'll call the Yahoo/ATT problem, to pick typical internet and phone providers. The details Darin gives for this example are not hypothetical; they are some of the many privacy details these companies have about their users.

Let's look at what has actually happened over the past few years. During the recent Dark Ages/Wild West early years of the internet and cell phones, companies took whatever info they gleaned from our electronic devices and sold or used them in any profitable manner whatever. Open season. As these privacy breaches became public knowledge, people began to take offense and object. Like with other transactions and communications, people in general believe that companies have a fiduciary responsibility not to sell or pass along privy information to others.

So over the last few years internet and phone companies backpedaled, beginning to publish elaborate privacy policies and assurances. Of course they still want to use our privy information and profit however possible, but they realized they struck a nerve during the Open Season period. Now their behavior is moderating. And society is in the process of catching up on the Yahoo/ATT problem. Laws have been rapidly developing to curb runaway abuse of privy electronic information.

The privacy principle does appear to apply to Google Gone Wild, and the Yahoo/ATT problem, but we will always be playing privacy catchup (whack-a-mole) with rapidly advancing technology, especially new forms of communication and commerce.

While the Bill of Rights is about government limits, we also have an enormous body of civil and criminal law protecting our privacy from the public. The government's inability to tamper with our mail is covered by the Fourth Amendment; the public's inability by statutory and common law, often even older than our Constitution. The similarity between the privacy strictures we apply against government on the one hand, and the general public (including corporate) on the other, is what the one-standard privacy principle attempts to encapsulate.


Don Bacon has conflated his conservative philosophy regarding the founding principles of our nation with his opinions on privacy. How the 4th Amendment will be applied in the information age will depend upon the unique needs of the present and not on concepts conceived in 1787 or in line with a narrow political agenda.

It is hyperbole to describe the course of history as “stumbling” whenever the Constitution has been re-interpreted by a new generation in a way that disagrees with someone’s personal beliefs. This attitude pervades the discussion of privacy and other pressing topics today; it only serves to make protecting privacy and resolving conflicting opinions regarding other equally pressing issues more difficult. This attitude also demeans every person in the history of the nation who has been on the losing side when the interpretation of the Constitution has changed. What is suitable in one era may not work in a new era.

Terrorism is a new threat to our liberty. The threat of terrorism has been amplified by information technology. Communication technology in the information age has made planning and caring out terrorism easier and more effective. Protecting us from terrorism and preserving privacy will not be resolved by philosophical convictions carried forward from a bygone era. The resolution will be practical and sized to meet the challenges we face today.

Bacon asserts that metadata, i.e., addresses, and data, i.e., the content of messages, are one in the same. That is wrong. In modern communication systems message packets contain the addresses of the correspondents, information regarding how to reassemble the message, error correcting codes to enable lost data to be reconstructed based upon redundancies in the message, and the message itself. These are not one in the same thing technically or practically; they are very different elements and separable.

Nothing that has been revealed to date regarding NSA activities provides any evidence that the data, the messages contained in the correspondence, have been subject to an unreasonable search and seizure. To view the message contained in these communications requires a court ordered warrant. The warrant must be based upon probable cause. This is not a willy-nilly invasion of anyone’s privacy; it is a tool used to discover and stop terrorism.

Whether or not the current rules are sufficient to protect privacy will preventing terrorism is what this argument could be about. Should the activities of this court be more transparent and available to the public at large? What checks and balances are provided to assure that privacy is being protected and that individuals are not using this process and technology to harm innocent people? These are legitimate questions to be asked about a very pressing and practical problems created by the modern world we live in.

Metadata is being used today by non-government entities to enrich our world. If you search for a product on Amazon’ that product will be displayed somewhere on the Amazon webpages on subsequent visits to Amazon. This depends only upon the addresses you have visited. If you visit a news website you may discover ads for this product displayed in the sidebars on the news webpages. These reoccurring ads are a result of Amazon providing metadata about you to other vendors. Metadata is used to provide you with information about products that you have previously looked at or about topics that you have visited in the past, this can be helpful or annoying, but it is not illegal.

Using metadata is the same secret sauce that Google and other search engines use to speed up information searches and to make popular information easier to find. Regardless of what you believe is happening as metadata about your travels on the Internet are collected the law has not placed very many limits on their use.

None of these technologies examine the content of the messages you send or that are sent from your computer or phone. Of course hackers have violated privacy when they have examined these data breaking the law. The penalties for violating these rule is not well understood so the current discussion may change that too. How to police the Internet has not been a major topic for public discussion in the past: it should be now.

As more uses of metadata are invented and become practical the need for this discussion and some changes to the law are certain. Throwing out the baby with the bathwater as some advocates for letting the past dictate the future is not the only way to solve this problem or to deal with the risks and benefits of new technology.

Admiral Poindexter, after 9/11, publically proposed to collect the records of all phone calls and Internet communications and to store them in an archival database that could be probed later if probable cause could be proven in a court of law. This is both a useful way to tract down terrorists and a dangerous repository of information if unregulated and used by malevolent individuals without respect for the law or the ideals we share as a nation. Clearly safeguards and rules that protect the commons are required as well as a new understanding of privacy in the information age.

When new medical technologies are innovated they must be regulated to prevent their abuse. Every technology that provides values and benefits can also be used for evil purposes. Regulation and policing the use of new technology is function of government. The 2008 economic downturn was the result of innovative technologies in the financial industry that were inadequately regulated largely due to a dogmatic belief in free unregulated markets and opposition to government regulation. Lets not repeat that error again as we evolve rules to use and regulate metadata.

Poindexter lost his position in government because he had publically proposed this scheme. The Bush Administration nonetheless implemented his plan. We have now learned what many expected, that the Obama administration has continued this program. By all reports it has led to more than 50 interventions preventing acts of terrorism. So where does this fit into the arc of history?

Thomas Jefferson believed that the principles behind of our government were stated in the Declaration of Independence. Lincoln inferred the same view in his address at Gettysburg when he referred to the Declaration of Independence and not to the Constitution. The core values of our nation have not changed; they include the conviction that all men are created equal, that we are endowed with a right to life, liberty and the pursuit of happiness.

Jefferson believed that the Constitution defined the process of government. He believed the process would change over time as time changed the needs of the people. He favored a regular periodic re-examination of the Constitution to change it to conform to the needs of the moment. The living, not the dead, he said, should determine how those alive today will live their lives.

Jefferson was wise enough to understand that he would not be able to imagine the telephone or the Internet or the unique opportunity these technologies present for good and for evil. He was wise enough to realize that the world would change.

The meaning of the Constitution has changed many times since 1787. For example, when the Constitution was drafted the consensus view was that a standing Army had no place in our democracy. A standing Army was feared as a threat to individual liberty. The prevalent belief during this period led to the political decision to protect the common cause with a volunteer militia and not a standing Army. To make sure that this volunteer force would always be a credible force the 2nd Amendment was written to guarantee that this militia would always be armed.

Today the 2nd Amendment has been re-interpreted to mean that individuals have a right to arm themselves. This was not the original intent of the authors of the Constitution. Today, however, this interpretation is the law of the land. It has also become the subject of another important debate in our time; a debate that is yet to be resolved.

As Jefferson foresaw the rules and procedures of government have changed over time. These changes have been the result of new challenges or a changing consensus as the nation has continued to redefine itself for each new era. This is not the “stumbling history” of misapplied ideals; it is the pragmatic response to changing times.

Gun laws, who can vote, how taxes can be collected, abortion laws, the right to marry, the right to privacy have all been redefined since 1787. Technology and the evolving consensus regarding what our stated ideals mean in practice have evoked these changes. Change is the sign of a healthy democracy; it has never been a stumbling unprincipled walk through the corridors of history.


It is difficult not to laugh when Thomas Jefferson and "all men are created equal" are used in the same sentence.

This slave owning aristocrat who reserved the "rights of men" to white male landowners bears little resemblance to our concept today of Democracy.............or perhaps he does.


"Over the last few years internet and phone companies backpedaled, beginning to publish elaborate privacy policies and assurances."

Banks, insurance companies and others are required by law to advise their customers of their privacy policies, so they periodically send out a statement of their policies. We all get them. Read them carefully and you will find that, in the end, they all say the same thing using a full page or more to say it: "Your privacy is important to us so we will safeguard your privacy. Toward that end we assure you that we will not reveal your personal information to anyone if it is against the law for us to do so. You may stop us from using or selling your personal information in some cases by merely jumping through a hoop or two.

With one exception, I have never seen a privacy statement that did not take the form I outline here. The one exception is a statement I wrote that that retains for the company only those rights to use personal information that the company must have to conduct its business.

“Don Bacon has conflated his conservative philosophy regarding the founding principles of our nation with his opinions on privacy. How the 4th Amendment will be applied in the information age will depend upon the unique needs of the present and not on concepts conceived in 1787 or in line with a narrow political agenda.”

Jim Larimer, who earlier in this thread made some very good points, has yet again announced his lack of appreciation, respect or concern for our Constitution.

Jim pointed out earlier that the private sector is at least as responsible for intrusions on our privacy as is the government – and that is true. Unfortunately, Jim’s proposed response to the problem seems to be to allow more government intrusion to even things out. That is wrong.

Jim seems to believe that data collected by or on behalf of government will not be misused. I do not understand how anyone could possibly believe that. As I have argued – the data WILL be misused. People not privy to it WILL get their hands on it.

The answer to the problem is not ignoring or changing the Constitution – it is federal legislation.


It is a commonly held opinion among those who study these things that Fourth Amendment jurisprudence is and has been rudderless. Even Justices as widely separated as Scalia and Sotomayor agree on that much. The purpose of my thread is to propose a rudder, a privacy principle, to replace the third party doctrine. If Jim has a better rudder to offer, please produce it.

I do not, as Jim asserts, consider metadata and content to be "one in the same" [sic]. I argue that the third party doctrine, as established through the language of the controlling Supreme Court rulings and taken to its logical conclusion, would allow their equal treatment. A nightmare scenario.

My thread is not about NSA (or the other acronyms') actions, if for no other reason than not actually knowing what the NSA is or isn't doing. It is not about the FISA court, for the same reason. It is about finding a guiding juridical principle for Fourth Amendment interpretation, regardless of what NSA or FISA are doing.

My thread is not about what intelligence-gathering is happening outside the USA or to persons not protected by the USA. It is a constitutional question about what protections persons under US jurisdiction should have with respect to searches and seizures. A timely question deserving of well-researched, reasoned opinion.

My proposal advocates a marked change in our approach to privacy protection, not the rudderless status quo. Jim on the other hand pretends to advocate progressive change, but instead practices a "teachable moment" professorial condescension/aggression. The technique uses obfuscation and animus against new ideas, which not surprisingly gravitates to and defends a comfortable business-as-usual. If I am wrong in my assessment, please prove otherwise by producing here a new idea, a workable Fourth Amendment principle superior to the third party doctrine.


I don't want to sidetrack this discussion, and Mr Bacon is a big boy and can handle his own quite well, but I would like to address at least one comment Mr Larimer made that is false, even though he doesn't seem to want to believe that.

Mr Larimer continues to assert all is well and legal regarding the government's collection and use of data, despite the fact that the facts that have come out don't support that view.

Mr Larimer's comment (in part): "Nothing that has been revealed to date regarding NSA activities provides any evidence that the data, the messages contained in the correspondence, have been subject to an unreasonable search and seizure. To view the message contained in these communications requires a court ordered warrant. The warrant must be based upon probable cause. This is not a willy-nilly invasion of anyone’s privacy; it is a tool used to discover and stop terrorism."

Many have posted links on this matter, but I have made it a little special project to post links on this matter on almost a daily basis. Those links provide information that directly counters Mr Larimer's assertions. Perhaps Mr Larimer hasn't read them.

In the event that is the case, may I refer Mr Larimer to that thread: Web Link

Anyone that scrolls through that thread will find multiple links that contradict this continued assertion of Mr Larimer's argument.

I'm guessing here, but I suspect that Mr Bacon wrote this piece with at least some of the discussion that thread and others have provided, to more clearly address the core issues and cut the noise away. That, however, is only a guess.

The fact that our intel community is not being completely honest with us, however, is a fact, despite Mr Larimer's claims to the contrary.


Barnus makes a good point about corporate privacy policies. Lots of fine print. They can seem perfunctory, minimalist, downright full of holes. The takeaway is that we don't have nearly as much privacy as one might assume.

As an example, let's look at the protections afforded to the most intimate details of our lives, our personal health information (PHI). Kaiser Permanente's privacy policy shows how easy it is for the government to see everything about our medical history. First, we can lose our confidentiality over routine government oversight of medical providers:

"As health care providers and health plans, we are subject to oversight conducted by federal and state agencies. These agencies may conduct audits of our operations and activities and in that process, they may review your PHI."

Second, we can lose the confidentiality of our PHI if the government deems it necessary for national security. No warrant is mentioned as being required in this context:

"We may also disclose your PHI to authorized federal officials as necessary for national security and intelligence activities or for protection of the president and other government officials and dignitaries."

Third, Kaiser can expose our PHI in response to any "administrative order," which means, any order from an agency of government:

"We may use and disclose PHI in responding to a court or administrative order, a subpoena, or a discovery request. We may also use and disclose PHI to the extent permitted by law without your authorization, for example, to defend a lawsuit or arbitration."


Mr. Bacon makes a great case. I would add that, from a normative perspective, privacy is always the default when there is no overall consensus or agreement. The fact that you don't care about my privacy should have no bearing on my expectation of it and my having it. It is mine to relinquish.

With regards to the statements re. the fight against terrorism and privacy, as if this were a legitimate trade-off, there is a huge conflict of interest in a government that a) foments violence in the world and b) has congressional representatives benefiting from the business of that fomentation. The alleged trade-off between privacy and security is no trade-off at all. It's a ruse that further erodes our freedom and security while masquerading as something noble. Mr Fox has to listen to all us chickens to make sure we're safe. Uh-huh, sure...


Many people today react to new technology and innovation with wonder and fear. A better approach to innovation is to consider what good comes with it and how it might be misused. We can look forward starting in the present by creating regulations to optimize benefits and minimize the risks that come with innovation or we can look backwards to history and blame the past for not anticipating the future.

The information age has already improved our lives by making information more accessible, creating new businesses, and even new entertainments, but it comes with some risks as well. A reasonable approach to new technology is to appropriately regulate it.

In 1787 automobiles, airplanes, highways, airports, radios, television, movies and modern medicine did not exist and with few exceptions these future innovations were unimaginable. What seemed unlikely or even impossible then is commonplace today.

All of these innovations have required government regulation to safe guard the commons and to prevent their abuse. Information technology is one more innovative technology that has improved the quality of life and requires regulation.

Bacon fears the potential to abuse electronic medical records and sees this as an invasion of his privacy, but the potential good that these records can do to improve healthcare, reduce costs, and save lives should not discarded because it is also possible to abuse this privilege. What is required is sensible regulation similar to the recent government regulation that prevents insurance companies from denying coverage to individuals with per-existing conditions. If the HIPPA rules are not working, it is always possible to improve them. If people fear that their privacy will be violated if their case of the flu or some other infectious disease is reported to the CDC, then we will all lose something valuable if this fear becomes an information blockade.

George Muteff insists that because there have been admissions of illegal acts by employees of the NSA, a reference he made earlier to a news story, that this is proof that the NSA condones and routinely breaks the law. The individuals in this news story confessed to a crime but that is not the same as the government condoning criminal behavior. It would be silly to believe that the only remedy for a corrupt police officer would be disbanding the police force.


I wonder what Nixon could have done with today's capabilities?

It would be silly to believe that the only remedy for a corrupt police officer would be disbanding the police force.

Ah yes. The baby and bathwater argument. Good one. Just as it would be silly to prevent law abiding people to owning assault weapons with 100 round clips just because of few idiots.

Just as it would be silly to regulate booze because some people drink too much.

Does anybody remember MAINWAY and the uproar caused when Bush the W sought to immunize communications companies from lawsuits arising from their providing piles of data to the government meant to be used in the testing of terrorists identification algorithms?

Operation Mainway: -- Web Link

Retroactive Immunity: -- Web Link

What were Mr Bacon and Mr Larimer saying when Bush the W and the NSA were collecting massive amounts of data from the telecoms back in 2006? Does anybody think that maybe the reason why nobody cares now is that nobody cared then?

None of this is new. None of it should surprise anybody.

Osama is winning.


Earth to Jim: you're trolling. This thread is a criticism of contemporary Fourth Amendment jurisprudence, and a specific proposal for change. If you would like to participate in the subject at hand, I recommend either defending the third party doctrine or proposing an alternative. Until proven otherwise, we shall assume you have nothing germane to contribute.

Of course that hasn't stopped you in the past. However, IMO, this thread is not the place for an all-too-familiar disquisition on Thomas Jefferson et al, or an easy condescension ("Many people today react to new technology and innovation with wonder and fear" etc.) or a tired legion of straw men arguments.

Instead, to get your feet wet with the subject at hand, please explain to us why the government should be able to examine our financial and medical records (to take two examples among many) without suspicion of crime confirmed by a court warrant, and why these otherwise very private arenas of our lives are not currently protected by the Fourth Amendment.


Again, I do not want to take away from the author's topic, but again I feel some adjustments are in order.

It is hard for me to understand how someone as intelligent as Mr Larimer is can consistently mis-read, mis-interpret and just plain fabricate the writings of others, yet he does.

Above, I commented on Mr Larimer's initial post to this thread. I did so because he was mistaken regarding part of his post. I quoted the particular segment that was wrong and provided him with the location of facts that contradict the comments I quoted, so that he could see what the rest of us have had the opportunity to see and digest so that perhaps he might reconsider his position.

The link I provided above goes to another TA thread that I started and add links to almost daily, as they come out. The thread is littered with links that contradict Mr Larimer's dogmatic, consistent argument that no laws have been violated by the collection of all electronic data by US intel on it's own citizenry within the US.

Here is Larimer's comment again: "Nothing that has been revealed to date regarding NSA activities provides any evidence that the data, the messages contained in the correspondence, have been subject to an unreasonable search and seizure. To view the message contained in these communications requires a court ordered warrant. The warrant must be based upon probable cause. This is not a willy-nilly invasion of anyone’s privacy; it is a tool used to discover and stop terrorism." Mr Larimer is wrong.

In his apparent response to my insertion of facts and sources, Mr Larimer again misrepresents not only what I wrote, but the plethora of facts provided that counter his claims - while at the same time attempting to adjust his continued assertions that no laws have been violated.

Mr Larimer, one is either pregnant or not; there is no such thing as a condition that rests between the two that I'm aware of.

As stated, there are numerous links on the thread I linked above that contradict Mr Larimer's steadfast contention that no laws have been broken, not merely one or two or even three links. Mr Larimer seems to want to believe that there was a single story that may have spoken to a rogue spook that might have bent protocol just a bit. That is not the case, and I believe Mr Larimer knows this. If not, he should.

Further, there are times when I have to just shake my head in amazement at someone that just seems so intent to argue, just for the sake of arguing. This is one of those times.

Please excuse the interruption folks. It just bugs me when someone continually misrepresents and fabricates facts.


George Muteff wants to convict the government in a court of public opinion before the evidence is complete. Some employees or former employees of contractors who serve the government have confessed to crimes. It is a shaky inference to conclude from these revelations that there is a vast government conspiracy to deprive all of us of our rights. There may be a crime here but proof that the highest levels of government have ordered these contractors to listen in on private conversations is still an inference based upon suspicions and not on evidence vetted in a court.

The court of public opinion is often wrong. Before making a judgment call about these claims a more complete investigation and account is needed. This might be something similar to a new Iran-Contra affair or it might be a lot smaller. The tradition in the US is presumably innocent until proven guilty.


Earth to Don Bacon, how did you miss the point that I am defending the idea that metadata is not private?


The constitutional argument for warrantless searching of metadata is the third party doctrine. Unfortunately, the same argument works for warrantless searching of content. Since you presumably want to protect content from warrantless searches, while exposing metadata to same, you need something different from the third party doctrine. Any ideas? Or haven't you thought that far ahead?


The Supreme Court ruled in 1979 that records of phone calls are public data. These records are metadata. That term was less popular and less likely to be encountered in 1979, it is a common term today.

Metadata also refers to connections on the internet and to aspects of a data set that are not unique the datum. For example applying a particular medical treatment when a set of symptoms have been identified.

There are many good uses of metadata, examples include: thwarting terrorism before it occurs, detecting and tracking epidemics, and evaluating the efficacy of medical treatments. Prohibiting every use of metadata would be a mistake.

The Supreme Court in 1979 saw a difference between the record of a phone call and its content. The example given at the time was the difference between the address on a letter, the metadata, and the content of the letter, the data. That distinction still applies.


The -trolltracker- will sum up this -Jim Larimer's- argument.

The government should continue its unconstitutional searches & siezures until somebody in government catches them red-handed. Likelihood not very likely considering the fact of who controls the senate and department of justice. Democrats.

Tootles!


The majority in Smith v. Maryland (1979) based its approval of warrantless searches of phone metadata on the third party doctrine it articulated just three years earlier:

"This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities."

That earlier case blessed warrantless searches of all bank records, both content and metadata. The justification, quoted here, is general ("information") and does not distinguish types of information. That is the same justification for warrantless searches of medical information, content and metadata. There is no reason the same doctrine can't be used to justify warrantless searches of phone content. Phones were in common use for a half century before the Supreme Court ruled against warrantless phone taps.

Smith v. Maryland was a case about pen registers, i.e., metadata, not the content of phone calls. But its language about persons assuming "... the risk that the company would reveal the information to the police..." again does not distinguish types of information which are excluded from the third party doctrine.

If the third party doctrine condones warrantless searches of the content of medical and financial records, it can easily be applied to phone content. Indeed, consistency of legal reasoning would demand it. There is nothing inherently more private or special about the information conveyed in a phone call than one's medical or financial information.

Bottom line: the third party doctrine is the mother of all privacy slippery slopes. Consistently applied, all third party information would be warrantlessly available to government. Why couldn't it even be used to destroy privileged communications, as with doctors, shrinks, lawyers? Stay tuned...


"None of these technologies examine the content of the messages you send or that are sent from your computer or phone."

Really? When Gmail was still relatively new, I distinctly remember getting a very targeted ad and wondering how in the heck Google came up with that ad, until I realized that it had picked a key word out of the BODY of one email sent to me.


The key finding in Smith v Maryland was that one has no expectation of privacy when one makes a phone call because he willingly dials a number. A stretch of the third party doctrine which has become a justification for the government to view - anything - that uses electronic media.

That is obviously absurd. Ask a hundred people if they willingly waive their rights of privacy when they punch in a phone number and one (perhaps Jim) might say yes. The dissent pointed out the absurdity.

How that case could have been decided the way it was is a mystery. The case was obviously wrongly decided.

-


This third party doctrine is indeed a slippery slope.

As an example, there are numerous individuals and organizations that are now suing the government, not for violating the Fourth Amendment, but rather for violating the First Amendment, violating their rights (our rights) to free speech. I had to read it to understand the basis, but after reading about their reasoning, I can completely understand their position. Further, it seems they have a more than fair chance of being heard and of winning.

Part of their premise is that if one knows that their conversations can be monitored and perhaps even used against them at some future date, one would be much more cautious in what they say, thereby curtailing their speech.

For those interested, here's one link that expresses and exposes this tactic: Web Link


Conservatives need absolutes. They don’t like the distinction between the address on a letter and what is inside the envelope. The Supreme Court majority used this distinction in 1979 to justify the ruling that the records of connections between different phone numbers are not protected by the 4th Amendment. The court did not say that phone conversations were also public; the content of the envelope and the conversations between individuals at each end of the phone connections remains private and protected by the 4th Amendment.

This ruling was not sufficiently black and white for the conservative way of thinking; according to conservatives like Don Bacon this ruling puts us on a slippery slope and soon the 4th Amendment will be meaningless. This fear of complexity ignores the reality of life. Almost everything in life is a matter of degree and not either black or white. That is not to say that we should not strive for simplicity, but we should not ignore the reality that not everything is simple.

The current and popular tendency to exaggerate the methods used by our government to thwart terrorism has given conservatives another opportunity to beat on their absolutes drum. Take the conservative resistance to gun laws; it is another example of the conservative unwillingness to accept complexity. Today gun suicides and gun homicides take 80 lives every day on average somewhere in America. The rest of the industrial world has implemented government regulations to control access to guns and have reduced gun deaths.

Here in the US sensible regulation has been resisted because of the slippery slope argument that this might mean that no one could have a gun. Total restriction to access to guns is not even the case in the nation with the most restrictive gun laws, i.e., Japan, but this argument is nonetheless one the key conservative arguments that have prevented our nation from taking steps to end the blood bath we are enduring today.

Bacon’s demands that to participate in this discussion you must offer a solution to a problem that may not exist. So far no convincing case has been put forward that the government is violating 4th Amendment as a matter of policy. Before there can be a solution, there must be a problem. Even if there is some ambiguity in the current regulations regarding privacy, there is no reason to believe that cannot be remedied without opening the door to terrorism.

Just like gun regulation does not mean that every use for guns will be prohibited, neither must we give up privacy to protect ourselves from terrorism. Implementing universal digital medical records as part of the Affordable Care Act and using the metadata these records can provide does not mean we must give up private information to gain the improvements in healthcare that can be created by using these metadata to discover what treatments are effective and which are not.


A civil libertarian concern for an erosion of Fourth Amendment rights is not accurately characterized as politically conservative. In fact, most of the recent outcry on this subject has come from left-of-center sources. My concern however is an attempt to 'conserve' our civil rights; of that I am rightly accused.

The defining political issue we have faced in the last few years, in my opinion, was the war in Iraq. Like Vietnam, a war of choice can define an era, and the political actors who inhabit it. I opposed the invasion of Iraq, before, during and after. We had Saddam bottled up just fine: sanctions, embargoes, no-fly zones, etc.

Jim on the other hand supported the war. Even years later, when the disaster was obvious to all, he last told us here on Talkabout that he wasn't sure what he thought. He still couldn't admit he'd been wrong, that he'd followed the conservative herd. Iraq was the defining conservative cause of this era, and Jim was on the conservative side.

Attempting to tar someone as conservative, when one takes the conservative position on the most important issues, makes no sense. Is it too obvious to point out that in general it is the conservatives in society and on the Supreme Court who support warrantless searches?

Besides, since Jim tells us above he's unconvinced there's any real problem with our privacy rights, then he's spent an awful lot of time here on a subject that is of little concern to him. By definition, a troll.


Saying that the PRSIM program and related activities are ok because "No convincing case has been put forward that the government is violating 4th Amendment" is more than a little disingenuous since we all know that until the recent revelations by a whistle blower the programs were secret. It is hard to challenge a program's constitutionality if you don't know it exists.

Yesterday, to try and remedy that, the Electronic Frontier Foundation, joined by the First Unitarian Church of Los Angeles, the Bill of Rights Defense Committee, Calguns Foundation, Greenpeace, Human Rights Watch, People for the American Way, and TechFreedom, sued the government: Web Link

I'm sure many more lawsuits are being prepared.

One interesting challenge for groups hoping to test the law is that, so far, the programs seem to be beyond the normal judicial review: Web Link

--Darin


Don Bacon is correct; radicals on the left have joined with him and his fellow radical right wing libertarians in taking pot shots at our government before all the facts are in.

Don Bacon is quoting comments I have made in the past on TalkAbout so he should also note that I agree wholeheartedly with Eric Hofer’s observation, stated in his essay on true believers, that there is not much difference between the radical right and radical left. They are all just radical.

Radical beliefs and “my way or the highway” politics are one of the causes of non-functional democracy. Our Congress currently suffers from gridlock caused by radicals, mostly on the right side of the isle.

Compromise is the key to moving forward in a truly civil society and that requires a tolerance for ambiguity and uncertainty; something radicals of both political extremes will not accept.

Darin is correct that the NSA programs should never have been kept secret. The government has lots of secret programs: weapons and defense systems, and intelligence gathering. There is no law against secret programs. Secrecy, however, should be used sparingly.

There has been some confessed law breaking by NSA contractors, but as of yet nothing convincing has been revealed that breaking the law is a government policy.

The Obama administration had much bigger issues to deal with after taking office than immediately fixing all of the problems created by the Bush Administration. Not revealing this program sooner may have been a political decision to not create a firestorm, like the present one, so that the Affordable Care Act could be passed. It still required most of the first term in office to enact this major legislation making healthcare a national priority for all Americans.

Radical idealists are unable to appreciate that practical politics requires setting priorities. Revealing this program was far from the top of Obama’s list of pressing problems to fix. Healthcare was near the top.


Darin:

There you go again – repeating the same old tired lies.

There is no reason to believe that conservatives cannot or do not understand or accept complexity. You just made that up – or more likely – cribbed it from somebody else.

ALL of the data indicates that suicide rates are not affected by gun ownership rates. If they were, so what? Who the hell are you to tell folk if they should stay alive when they want to die?

You argue that the rest of the world has implemented government regulations to control access to guns, implying that the US has not. That is dishonest. Federal law and the laws of every state are replete with laws that limit access to guns.

There is precious little data that can be pointed to indicate that stricter gun laws reduce gun deaths. In the US it is clear that jurisdictions that have the strictest gun laws have the most gun crime and the highest rates of gun deaths.

You do not care about any of that. You ignore facts and statistics. You go on and on and on with tired, disproven, dishonest statements to justify your agenda.


Barnus,

If you've confused me with Jim Larimer you are very confused indeed. :)

--Darin


It is unfortunate that some resort to name calling through the use of labeling to try to win their point.

That behavior does not extend one's argument, but rather takes away from the argument being made and reflects poorly on the one providing that tactic.

On the bright side, and this goes to Don, it seems you graduated from a conservative (Conservatives need absolutes) to Radical idealist (Radical idealists are unable to appreciate ...). You appear to be stepping up in the world, Don. Congratulations.

It continues to amaze me when I see someone that is so willing to blindly believe in government that they are willing to (as I noted above) "...consistently mis-read, mis-interpret and just plain fabricate the writings of others,..."

Wouldn't/shouldn't it bother us mere plebes that James Clapper, Director of National Intelligence, needed three chances over time to answer a very simple and direct question posed to him by a Congressional committee? The question? Here's the exchange:

"Wyden: So what I wanted to see is if you could give me a yes or no answer to the question, does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Clapper: No, sir.

Wyden: It does not?

Clapper: Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly."

His third bite at the apple was in writing to Diane Feinstein: Web Link


Clapper states in the letter to Senator Feinstein that the NSA has been collecting metadata form all phones in the US. That is the revelation that Snowden revealed and it is also not illegal. In the context of this witch hunt anything said is certain to be misrepresented by someone wishing to stoke the flames.


Revealing this program was far from the top of Obama’s list of pressing problems to fix.

It should have been a top priority.

The thing that nobody discusses in this thread is that the majority of Americans are nonchalant about the whole affair.

Two thirds of Americans rate the War on terror as being more important than protecting their privacy.

The opinions of the majority of Americans seem to be more influenced by who was in charge of the NSA than what the NSA was doing: -- Web Link

But in all cases the Majority of Americans are more concerned with the risk of terrorism than the risk of tyranny. And that is the problem.

Not Bush. Not Obama. Not Ashcroft. Not Holder.

It is on us!

Here is what everybody could do to help our politicos screw up some courage. We should create a petition that all can sign, promising to defend any politico of any stripe, that votes to end all of this. Should the inevitable happen and 19 guys figure away to attack us, we should pledge that any politico that dares to blame those who prevented the NSA from collecting data for any subsequent attack, even if doing so would have clearly prevented by the perpetuation of the Bush-Obama security doctrine, should be voted out of office, no matter what.

We need to make it clear to our politicos that we are more than brave enough to live with the enhanced risk of a 9/11, or a Brief Case Nuke, or worse, even it it could be prevented by massive data gathering, enhanced interrogation techniques, or suspensions of Habeas Corpus.

Who is with me?


"In the context of this witch hunt anything said is certain to be misrepresented by someone wishing to stoke the flames." You have such a command of the English language; "witch hunt", huh?

Jim, bottom line here? James Clapper, the Director of National Intelligence, lied to Congress and the American people. There's an old saying that goes something like this: the fish always stinks from the head.

If the Director of spooks is lying to the very folks that fund his playground, wouldn't it stand to reason that others within his jurisdiction might be doing the same?

Now you can believe whatever you like. That is one of your rights (still), and you can pontificate your beliefs all over the place. That, too, is your right.

I would close here with to friendly suggestions for you, though:

1) cut the labeling. all it does is weaken whatever your point is, while at the same time making you appear as an argumentative, arrogant gasbag.

2) be very careful how you use electronic communications. Big Brother is watching

Aside from that, Jim, have a nice night.

Sorry to drift from topic. Couldn't help myself.


I had all intensions of leaving this alone for the night, until I ran across this: "NSA spying under fire: 'You've got a problem'", Web Link

This piece is loaded with juicy stuff. Apparently, members of Congress don't appreciate being lied to - and this is the result.

From the piece (in part): "In a heated confrontation over domestic spying, members of Congress said Wednesday they never intended to allow the National Security Agency to build a database of every phone call in America. And they threatened to curtail the government's surveillance authority."

That is the opening paragraph. Here's the next one: "Top Obama administration officials countered that the once-secret program was legal and necessary to keep America safe. And they left open the possibility that they could build similar databases of people's credit card transactions, hotel records and Internet searches." Wait a sec here; did I just 'hear' an example of Mr Bacon's third party concerns? Could it be?

Here's more: "The House Judiciary Committee hearing also represented perhaps the most public, substantive congressional debate on surveillance powers since the 9/11 terrorist attacks. Previous debates have been largely theoretical and legalistic, with officials in the Bush and Obama administrations keeping the details hidden behind the cloak of classified information."

More from the piece: "The sponsor of that bill [the Patriot Act], Rep. James Sensenbrenner, R-Wis., said Wednesday that Congress meant only to allow seizures directly relevant to national security investigations. No one expected the government to obtain every phone record and store them in a huge database to search later."

More from the piece: "As Deputy Attorney General James Cole explained why that was necessary, Sensenbrenner cut him off and reminded him that his surveillance authority expires in 2015."

And perhaps my favorite part; "And unless you realize you've got a problem," Sensenbrenner said, "that is not going to be renewed."

There is a lot more, but this should be enough to get most to look.

It's not nice to lie to Congress.


One more, and I'm done for the night with this one (I hope). This appears to be a follow-up piece to the one I just posted: "The NSA Admits It Analyzes More People's Data Than Previously Revealed", Web Link

This is how it starts out: "As an aside during testimony on Capitol Hill today, a National Security Agency representative rather casually indicated that the government looks at data from a universe of far, far more people than previously indicated."

It is s quick read and worth the look. We get a brief glimpse of intel jargon and just how casual it is - "it" being gathering intel on all Americans.

I think I see changes coming. Maybe it was members of Congress worried about themselves and their own desire for their right to privacy; maybe it was Clapper lying to them, who knows - but this is not going to go away.

I have to wonder how long it will take for even the most ardent of supporters of government to realize their mistake and change their tune? That, of course, would require an admission of mistake, for starters, so I'm not holding my breath.

"Third party doctrine", huh? Well maybe there's just something to this.


Jim Sensenbrenner, the primary sponsor of the Patriot Act, claims he did not understand what it permits. Coming from someone who also denies the existence of climate change that is not surprising. The Snowden NSA revelations have created the opportunistic handwringing and posturing that characterizes today’s political divide locally and nationally.

A proposal from a coalition of Silicon Valley technology companies and non-profits, for example, the ACLU, have sent a letter outlining needed changes to these programs, see Web Link. The letter requests greater transparency and accountability, but it does not suggest ending surveillance programs to thwart terrorism.

There is a middle ground for those interested in finding it. Everyone says they desire more transparency for these programs. Lets see if Sensenbrenner and other loud voices are as interested in making these changes as they have been in making political headlines.


"If you've confused me with Jim Larimer you are very confused indeed"

Sorry. I have done that in the past. Don't know why.


"They left open the possibility that they could build similar databases of people's credit card transactions, hotel records and Internet searches --- “

That omits license plates.

It is likely that wherever you go your license plate is being photographed. Not just at toll bridges and such but all over. The photos and the information are being stored in searchable data bases.

This gives authorities and, practically, just about anybody the ability to determine where you were and when at times when you were in your automobile. “Where were you on the night of the 17th when Mr. Doe was frightened by an intruder? Keep in mind that lying to a police officer is a crime.”

There may be, of course, very good reasons why you do not want others to know where you were and when.


"Jim Sensenbrenner, the primary sponsor of the Patriot Act, claims he did not understand what it permits. Coming from someone who also denies the existence of climate change that is not surprising. The Snowden NSA revelations have created the opportunistic handwringing and posturing that characterizes today’s political divide locally and nationally."

That, folks, is as close as we will get to an apology - "...claims he did not understand...", then redirect and attack with "Coming from someone who also denies the existence of climate change..." - then tying that into what we already know creating familiarity, with the handwringing, posturing and political divide comment. It's a start, I suppose.

If I'm not mistaken, Barnus has pointed out yet another example that falls under the third party doctrine Mr Bacon has focused on. I had not thought about license plate images, but he's right. That, of course, makes me wonder what else I haven't thought about. I'm sure there is a lot that falls into that category.

This is a fairly tangled web with a multitude of perspectives, depending on who is doing the talking and what they believe they have at stake, but the bottom line here appears to be that this matter is growing in size and scope and striking some raw nerves with the folks that hold the pursestrings. I don't know if, as Don points out, any changes in the third party doctrine will result (at least initially), but it certainly appears that change of some sort is coming.

How our legislators handle this will be interesting. I wish I could foresee the future enough to know how this turns out; but I can't, so I'll have to hurry up and wait just like everyone else. Will they adjust the third party doctrine? Will they take a different approach, like pulling the pursestrings as Mr Sensenbrenner intimates? Will the White House finally come clean and do the right thing the right way?

We'll see.


Jim Larimer: "Jim Sensenbrenner, the primary sponsor of the Patriot Act, claims he did not understand what it permits."

Is that true? Let's see:

Jim Sensenbrenner: "I authored the Patriot Act, and this is an abuse of that law...The Patriot Act was never intended to allow the daily spying the Obama administration is conducting...The president should immediately direct his administration to stop abusing the US constitution."


Bacon opposes using metadata to stop terrorism or to improve healthcare, but supports Sensenbrenner's "I didn't know the gun was loaded" excuse for not understanding his own legislation.


Jim, you cannot keep pretending that the level of abuse under Bush in any way approaches that under Obama. Night and day.


I support accurately reporting people's statements. If Sensenbrenner is so awful, reporting his statements truthfully is a good way to show that.

For the record, I oppose Section 215 of the Patriot Act, permitting warrantless searches of Americans in the name of national security, as unconstitutional. Jim supports Section 215.

Here are a couple of other examples from just the last day of Jim's problems with veracity. He writes:

"Clapper states in the letter to Senator Feinstein that the NSA has been collecting metadata form all phones in the US. That is the revelation that Snowden revealed and it is also not illegal. In the context of this witch hunt anything said is certain to be misrepresented by someone wishing to stoke the flames."

Clapper lied to Congress. He then described his statement to a reporter as the "least untruthful" he could provide. He also claimed not to understand the question, which had been sent to him in advance. The administration is supporting him, and he still has his job. The public's criticism of an administration official for lying to Congress has not been misrepresentative (no need) or a witchhunt. It is appropriate and necessary.

Jim describes a letter written from ISP providers et al asking for the ability to disclose statistics related to revealing personal data at government behest:

"A proposal from a coalition of Silicon Valley technology companies and non-profits, for example, the ACLU, have sent a letter outlining needed changes to these programs, see Web Link. The letter requests greater transparency and accountability, but it does not suggest ending surveillance programs to thwart terrorism."

This description is misrepresentative. The ACLU opposes PRISM and Section 215 of the Patriot Act as unconstitutional. It cosigned the letter because publishing statistics about the programs would be a first step toward the public finding out what is secretly going on. Of course the ACLU and co-signers do "not suggest ending surveillance programs to thwart terrorism." They want to bring those surveillance programs within the bounds of the Constitution. That's why the letter advocates "...creating mechanisms to ensure that government is transparent, accountable, and respectful of civil liberties and human rights."


Both the Clapper letter to Senator Feinstein and the open letter from the coalition of Silicon Valley companies are available on the web. If you want to know what those letters say you should read them. The Clapper letter repeats the fact that metadata is being used by the NSA to track terrorists and coalition letter requests transparency and does not request that the government stop using metadata to track terrorists or anything else.


I am having a very difficult time figuring out whether this thread, or better stated the topic of this thread, is about the Fourth Amendment as it may apply to all the new revelations initiated by Snowden, or Jim Larimer.

Which is it?


Interestingly, the ISPers describe themselves at the beginning of the letter as "...companies who are entrusted with the privacy and security of their users' data...." They frankly acknowledge the fiduciary relationship of trust they have with their customers' "reasonable expectations of privacy." Those reasonable expectations are the antithesis of the third party doctrine (which is used to justify Section 215), and the backbone of the privacy principle:

"Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant."


Bacon is not referring to the letter sent to President Obama and other high ranking elected and appointed officials in our government by a coalition of Silicon Valley companies and non-profit organizations today, July 18, 2013. That letter can be read on the New York Times website at this URL: Web Link.

The statement, "Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant." is Bacon quoting himself.

What has been lost on this blog, thanks to all of the chest thumbing and professed indignity of the many critics of the government who use this blog to express their views is that no one disagrees with this statement.

The presumption all along has been that the NSA must have a warrant before they can use the metadata to track calls from telephones or messages on the Internet that include a known terrorist suspect’s phone or internet address. The only real issue is how transparent is this process and how rigorous is the requirement of proof demanded by the FISA court before issuing a warrant to explore the metadata.

It is government 101 that every regulatory agency and policing operation of government must be carefully monitored and held accountable. The potential damage to our nation and representative democracy created by corruption in government is not a new risk. Preventing corruption requires vigilance and transparency in government.

The letter from the Silicon Valley coalition was authored by a broad group of technology companies that include: AOL, Apple, Dropbox, Facebook, Google, LinkedIn, Microsoft, Yahoo, and others: and non-profits that include: the ACLU, Americans for Tax Reform, The Constitution Project, Electronic Frontier Foundation, Human Rights Watch, National Association of Criminal Defense Lawyers, National Coalition Against Censorship, Reporters Committee for Freedom of The Press, Reporters Without Borders, Wikimedia Foundation, and others; and by several investment firms. The complete list can be found by reading the letter at the URL listed above. The letter asks the government to be more accountable and transparent in carrying out this program. It does not request the government to stop using metadata.

There appears to a vast consensus of agreement on that point that more transparency is required. Ignoring that consensus and continuing to stoke the flames of discord by exaggerating how the NSA program works is a tactic to achieve a purely political gain.


"Bacon is not referring to the letter sent to President Obama and other high ranking elected and appointed officials in our government by a coalition of Silicon Valley companies and non-profit organizations today, July 18, 2013. That letter can be read on the New York Times website at this URL: Web Link."

Actually, I am. The quote ("...companies who are entrusted with the privacy and security of their users' data....") is from its second sentence.

"The statement, "Whatever the public cannot lawfully learn about someone without his or her permission, the government should not be able to learn without a court warrant." is Bacon quoting himself."

Exactly. I am returning the reader to the central thesis of this thread, a privacy principle. The third party doctrine has no future; it destroys privacy, will never survive sustained scrutiny, and in its stead we will need a new legal yardstick.

"The presumption all along has been that the NSA must have a warrant before they can use the metadata to track calls from telephones or messages on the Internet that include a known terrorist suspect’s phone or internet address."

This statement is deeply confused, and reveals a lack of understanding of the central problem. If a "known terrorist suspect" is the subject, the warrant will obviously permit searches of both content and metadata of communications. The vast metadata-only search is the problem at hand: when general warrants are issued for vast populations, such as millions of Verizon subscribers, who are not terrorist or criminal suspects.


The metadata the government has been requesting and archiving is data that would be discarded if the government did not ask for it. Surely Don Bacon understands that if you delete a file or over write it, it cannot be retrieved. The innovation made possible in the digital age is that the data can be archived, but that today is an enormously expensive task because storage is not cheap. Only the government whose purpose is our collective safety can afford the expense of this archive; companies such as AT&T, Verizon, etc. cannot.

A search warrant for something that no longer exists is pointless, it will not deter, detect, or stop terrorism. Probing an archive once probable cause has been established is a useful tool to stop terrorism. Additionally, culling medical record data bases and extracting metadata from these records can be used to measure the success and efficacy of medical treatments. Bacon would prevent that too.

Bacon's way of thinking will throw out all of the good uses of metadata because there are some bad ones too. Perhaps he knows of some innovations that totally without risks, but I doubt it is a very long or significant list. Why would we discard something useful simply because it is possible to misuse it? That is the central issue here.

Claiming that anyone who disagrees with his ideas is "deeply confused" shows either lack of insight into the technology or that he does not have any good points promoting his position.


Jim Larimer: "but that today is an enormously expensive task because storage is not cheap"

Do you have a citation for that or is it just something made fact by repetion?


This -Finley Lewis- points out another of this -Jim Larimer's- statements that he wants everyone to believe is so factual. Then he goes on to say that because it is so expensive, the taxpayer should foot the bill to have the government exercise un- constitutional power to spy on said taxpayer. Need the -trolltracker- say it?

Typical Democrat.

Tootles!


The innovation made possible in the digital age is that the data can be archived, but that today is an enormously expensive task because storage is not cheap.

You don't get it. The data is already archived by the Banks, Telcoms, Search Providers, Librarians, Social Networks, Porn Purveyors, Health Care Providers, Arms Dealers, and Local Law Enforcement agencies. The space that the Meta Data would require is a fraction of a fraction of the raw data it is derived from.

The meta data is used to detect patterns. When they see one, they can then go after the raw data which it was derived from. If they decide to look at you, they would know pretty much everything in as much time as it takes to concoct a SQL statement that will return a nicely sorted dataset.

If a "known terrorist suspect" is the subject, the warrant will obviously permit searches of both content and metadata of communications.

The Government is trying to come up with algorithms to detect behavior based on patterns. They want to be able to scan databases in hopes of plucking terror needles out of data haystacks.

Back in the Bush Administration, the NSA our some such acronym compelled a bunch of Telcoms to provide huge amounts of data from purely domestic conversations. They even passed a law to give the Telcoms retroactive immunity from lawsuits that arose from the apparent violation of the law by the Telcoms: -- Web Link

The reason this data was required is that they wanted to test their algorithms. In order to do that, one would look not only for terrorists. There aren't that many of them. So they might look for philandering behavior. The would devise an algorithm, plug in some numbers, and get a dataset. Then the would test the result set and investigate some of the leads. Then see if they had found themselves some cheaters.

They could test the algorithm, against Coke dealers, Bookies, Call Girls, Call Boys, whatever. Each time they would send out field investigations to confirm the results. Eventually the idea is to figure out what types of data points are useful and how to attach a relative value to each of them.

Now, ask yourselves. How is that the FBI has stumbled upon so many low grade plots to blow things up in the last decade? They bust conspiracies all the time. They contact the bad guys, give them a fake bomb and a cell phone, and then send them to hell after the fools push the detonate code.

The list is somewhat bogus but: -- Web Link

Predictive Real Time Total Information Awareness!?

Don't believe they could use your data to predict what you might do? If so, have you not marvelled at how good Google is at returning what you want after only a few keystrokes?


“The presumption all along has been that the NSA must have a warrant before they can use the metadata to track calls from telephones or messages on the Internet that include a known terrorist suspect’s phone or internet address.”

“Presumption is the right word, although the presumption is that warrants will be obtained, without opposition, from a secret court. In fact, if NSA has the information they can do anything they want with it – legal or illegal – and will - with the possibility of a whistle blower being the only hindrance.


Intolerance for corruption in government requires transparency, vigilance and a willingness to speak out when foul play is observed. The laws regarding wiretaps and other forms of interception are complex. There is a long history of the law with the Olmstead vs the United States Supreme Court ruling of 1928 being one of the milestone cases, see Web Link.

The law requires that a notice of surveillance be provided whenever a warrant to examine metadata or to wiretap a phone line is issued, but these laws are no well known and they are complex.

Very few will argue that making this entire process more transparent is a bad idea. Arguing that these methods should not be used to fight crime or terrorism based upon fear and paranoia about government in general is an example of idealism gone amuck.

Here is the URL to a discussion of how these laws are practiced in California for anyone who wants more information, see Web Link. Most people lack the motivation to become informed about the intricate details of these laws because they will never experience their use. For those who feel compelled to learn the details, they are not hidden from view.


This has been a productive exploration of the bankruptcy of the third party doctrine as an interpretative yardstick for the Fourth Amendment. The doctrine already allows warrantless searches of content (medical, financial info), and provides justification for the Patriot Act's Section 215, allowing full warrantless searches (content and metadata) of any personal data in the name of national security. Phone- and web-based communications content are unprotected by the third party doctrine; thus the need for a new privacy principle, based on society's reasonable expectations of privacy.

Along the way not surprisingly a familiar government shill has entered the discussion to defend the status quo. However, Jim has been unable to defend the third party doctrine, and explain how it protects any content from warrantless search. He hasn't provided a superior legal yardstick because he doesn't think we need one. And in the process, Jim has offered up some inane arguments.

Jim would have us believe that the NSA data-sweep was kept secret, and not revealed by the current administration, because Obama was too busy, being focused on reforming health care. Frankly, that's absurd. Telling us about the NSA program doesn't take very long: Snowden proved that. Administration officials (including Obama) didn't tell us about the program, because they wanted it kept secret. Not because they were too busy.

Jim would have us believe that NSA is providing a financial service to society and the ISPers, by forever saving data that companies would have no reason or ability to afford to store. And that by saving everything possible about everyone, government will have an almost infinite storehouse of information in case it chooses to prosecute someone. A haunting prospect.

Our shill has served up much more than absurd and Orwellian arguments. Jim has on the one hand told us to move on, that there is nothing to see here. No problem with our privacy rights that he can discern.

On the other hand, he has resorted to his familiar bag of tricks: namecalling ("conservative," "radical idealist," etc.), condescension (our ignorant "wonder and fear" at emerging technologies), obfuscation (pseudo-scientific rambling), silence on awkward subjects (what about the 'progressive' Jim on Iraq?), frequent quixotic slayings of non-existent 'straw man' arguments, and naturally, a sermon on what the Founders and Framers would say and do if they were Jim Larimer.

No amount of blather will hide the fact that our privacy rights are in jeopardy, and will continue to erode without a new Fourth Amendment yardstick to replace the pernicious and unworkably elastic third party doctrine.


On the other hand, he has resorted to his familiar bag of tricks: namecalling....

Hmmmm. Name calling:

...a familiar government shill...

No amount of blather...

...absurd and Orwellian arguments.


You forgot "inane."

My descriptors are accurate, in my opinion. Jim blathers, without question. The arguments I criticized are indeed absurd, and embrace an Orwellian vision of society. Jim has been a consistent shill for government policies, pretending to invite discussion while misrepresenting others' arguments, etc., on this and a number of other topics. It is factual to describe and name Jim's consistent role on this discussion forum.

On the other hand, condemning me as "conservative," when I am well to the left of Jim on major issues, like this one, or Iraq, is namecalling, a substitute for argument. Labeling privacy advocates "radical idealists" does not further an argument; it avoids an argument.


This -don bacon's- analysis of why Section 215 and NSA's un-constitutional searches & siezures is unbreachable if a person were to honestly adhere to the principles of limited govrenment found in our government guide, the US Constitution.

As a so-called constitutional scholar, President Obama cannot claim ignorance. Perhaps he was too busy enjoying vacations on the taxpayers dime to notice this aggregious breach of trust.

And for those of you that think this wanton invasive breach of privacy is unacceptable, wait until the Secretary of Health & Human Services starts exercising the power granted her by the legalese of ObamaCare. You ain't seen nothin' yet.

Democrats & RINO's are to be the death of this once great republic.

Tootlles!


What ever happened to JD the Federalist?


The -trolltracker- heard through the grapevines some time ago that he is experiencing some issues of health. Let us thank the god's of Talkabout that this -don bacon- is carrying the banner of constitutional government in his abscence.

Tootles!


"Very few will argue that making this entire process more transparent is a bad idea. Arguing that these methods should not be used to fight crime or terrorism based upon fear and paranoia about government in general is an example of idealism gone amuck."

That is unrealistic. The problem is not that there is a chance that personal information will be misused. It is the certainty that it will be misused.


Right now, on Comcast channel 36, is a movie titled "Eagle Eye". It was released in 2008 and stars Shia LaBeouf and Michelle Monaghan as two strangers that are pawns in a plot against America - a plot initiated and carried out by a super computer that collects all electronic communications (as stated in the movie - emails, IM, phones, cameras, satellites, etc - sound familiar?).

This super computer, named Aria, collects and demonstrates an incredible collection of data and uses that data to kill Shia's brother and kidnap Michelle's son to motivate the two to do its business.

I remember when the movie came out and I remember thinking then that it is possible. I don't recall thinking or believing that government surveillance had reached the point of using it on its own within our borders, however, which is the core of this movie.

And this is but one example of what can or is happening right here in this country by our own government against its own citizenry.

One can't help but wonder what the nest 5-10 years will provide in terms of technological advances and the uses thereof, particularly within the borders of our country in reference to American citizens. I feel it safe to say that the tech advances are here and coming. I also feel safe in saying that the temptation of this data is and will be just too tempting for our government not to use.

Question then becomes: what can we do to protect ourselves against invasion by our own government in our own lives and homes? Mr Bacon provides us a look at one way.

As an aside, but relevant; here are a few links that have popped up in the last few days regarding drones

1) FAA Asks: Please Don't Shoot Down the Drones, Web Link

2) FAA kindly asks that town's citizens don't shoot down federal drones, Web Link

3) FAA: Shooting Down Drones Could Lead to Prosecution, Web Link

Seems the government doesn't appreciate drones built at our expense being advocated for termination by some nervous about the invasion of their bedrooms, homes, lives and more.

It almost sounds futuristic - but it is not, it is here now and being used now. We may soon see hummingbirds that aren't hummingbirds at all, but rather cleverly disguised drones at our windows of our homes. Maybe spiders might not really be spiders. Perhaps bees nests might really be swarms of drones scoping our every move.

Orwellian? maybe, but real? Most assuredly.

Would you shoot down a drone that was peeking into your home?


George,

I think Granny will be praying to the Sun God..........

They already have flying insects, I believe they came about because of all the Wars. Insect Armies.............

Foreign VPN's will offer us protection from our own Government.

Questions is, can we all keep up with all this latest technology?


The service the NSA is performing is public safety. The metadata that the medical records portion of the Affordable Care Act, also known as Obamacare, will generate will be used to promote public safety by speeding up the detection of epidemics and evaluating medical treatments for safety and efficacy.

People on this blog and elsewhere who fear the US government or believe that it is more dangerous than terrorists, disease, and the use of ineffective medications, live in a delusional paranoid universe. Sadly they appear to be the loudest voice of the political right today.


^^^ People on this blog and elsewhere who fear the US government or believe that it is more dangerous than terrorists, disease, and the use of ineffective medications, live in a delusional paranoid universe. ^^^

So he sayeth as he stompeth his feet and poundeth his fists on the floor.


Mr. Larimer,

Do you really believe that our Government is efficient and effective?

Obamacare application is 10 pages long. Believing that our Government can effectively/efficiently handle all this information is ludicrous.

I believe in Obamacare, especially the fact that young adults remain on their parents insurance until 26. Many young adults can't afford these medications unless provided under insurance (some have problems remaining employed) and tend to go off their meds.

We can go into George's futuristic arena and ask how long before China is marketing Mini Drones at Costco. What, we will have to pass a whole bunch of laws/Government Dept. in order to protect us. Terrorist are dangerous, but do we have to build more Industrial Complexes instead of processing, cross referencing the information without spying on us?


"The service the NSA is performing is public safety"

Jim, the problem is that our Federal Government generates enmity through bad decisions, such as The Iraq and Afghanistan Wars, as well as supporting bad guys like Reza Pahlavi, Hamid Karzi, and even the Bin Laden family. We poke at the hornets nests in the middle east in the name of "spreading democracy" (cough), then have to go to extraordinary measures to protect ourselves from the hornets.

That is the least conservative approach we could take to spreading Democracy. Fiscally, it's ruination - irresponsible. Politically it's ham-fisted - stupid. Unless of course you're in the arms business or oil business like Haliburton. Then it's peachy.

The best way to spread democracy is to be the best example of a well-run society that prides itself on personal liberty and walks the walk.

The choice between safety and being spied-on is a fake choice. The government is not in the business of public safety if it's inflaming tensions and killing people abroad.

This sort of paternal notion that I'm being spied on for my own good is a lie perpetuated by those who profit from the military-industrial complex. The one Eisenhower warned us about.


Plenty of action across the country on judicial and legislative fronts, re warrantless searches. Here's a link to a recent New Jersey Supreme Court decision, among other developments:

Web Link


And what phrase continues to rear its head? "...an individual’s reasonable expectation of privacy."

It will be interesting to see how this plays out. By "this", I mean a state's rights to evaluate and legislate vs the feds rights of the same order. No doubt the Supremes will see a few of these cases come before them for their consideration. It would be my hope that on the ones they accept, and they will accept multiple cases on this, that they strongly consider the vast growth in technology and understand potential future growth in their decisions.

Btw, it figures that Jerry vetoed the legislation addressing privacy concerns here in CA. He has been, if nothing else, consistent in his inability to grasp direct reality. We know he inhaled; judging from his tenure as governor, it appears safe to say that he never exhaled. Hopefully, someone with a more active grouping of brain tissue, backbone and common sense will replace Jerry at the next opportunity.


The New Jersey case hinged on using cell phone signals to find the thief. In this case it was a two step process. First a stolen cell phone was tracked to a person who said they had purchased it from the thief. The cell phone signal of the suspected thief was used to find him. When the police found the thief he was in possession of more property that he had just stolen. This case does not fit a standard situation, but then rarely does any real world instance of these laws and procedures.

Can Don Bacon explain why his interpretation of the 4th Amendment protects cell phone thieves but not car thieves? Or is he in favor of protecting both types of thieves whose privacy is violated in order to catch them?

For example, if a car is reported stolen and the police see it going down the street and stop it thus discovering the car thief in the driver’s seat should the case against him be thrown out because the police have violated his privacy?

Suppose instead of finding the car by accident, the car is equipped with On Star and On Star is broadcasting its location. If the police ask the On Star system to share the location information with them and use it to find the car and arrest the thief have they violated his 4th Amendment rights again?

Suppose On Star calls the police and tells them where to look for the car without being solicited for the information, now is it OK to find and arrest the thief without violating his 4th Amendment rights?

Do the police need a court ordered warrant to do any of these scenarios? What if the car was just reported stolen and there isn’t time to go to court?

If it is OK to use any of these technologies to retrieve stolen cars and find car thieves to arrest them, why is it not OK to do this for terrorists?

The slippery slope that Don Bacon and others on this blog seem to want to prevent appears to be slippery on all sides. This libertarian position that is now being promoted by so many people here and elsewhere looks like it might make enforcing laws very difficult if not impossible. Is that the goal?

The political right does not like taxes and they now are claiming that any tax means socialism. Can we now infer that anyone who votes for a tax is a socialist? According to the political right anything short of a volunteer Army that serves for free means we must all be Communists because we need a tax to pay the soldiers.

The political right also does not like any form of regulation. John Boehner said this weekend that we should judge Congress by how many laws they overturn and not by how many they pass. If we get rid of all the laws, will we still need any police? Does the political right believe that paying for police means we are Communists?

Maybe you don’t think this is all pretty silly, but I do. Ignoring the real threats we live with today because of an ideal that has become so convoluted that what it means requires the Supreme Court ruling seems pretty nuts to me.


All the police had to do was get a warrant to track the alleged thief's phone, just like they had gotten one to track the original stolen phone. They had probable cause (testimony of the person found with the stolen phone), judges are used to being approached at all hours for a warrant, and there weren't exigent circumstances. Police instead took a shortcut by going straight to T-Mobile. Just get a warrant and no worries.


Question for Jim. If that Meta Data could be used to break up human trafficking and child porn networks, would you support that? What about gambling syndicates or music rip offs?

What about Divorce Cases? Should an Attorney be able to subpoena those records like they do now regarding toll booth records?

Question for Don. I can't seem to find anything that you wrote about this kind of activity during the administration prior to Obama. It is always fun to see if people are consistent not that there is anything wrong with one's thinking evolving. Were you as against Warrantless Wiretaps then as you are now?


Bacon says the police should have obtained a warrant before making the New Jersey arrest, but what he has objected to is much broader than this case in New Jersey. He has not addressed the many other situations that occur in the real world and for which his 4th Amendment claims present real barriers for actions that catch criminals.

For example, Bacon has not said what the police should do if a car is stolen and has an on board tracking system. Do the police need a warrant to use the tracking data? If the owner calls up and asks the police to use the tracking data to recover the stolen car, do they still need a court ordered warrant so that they do not violate the privacy of the thief?

The NSA program that Bacon strongly objects to as a violation of everyone’s 4th Amendment rights divides the use of the metadata into two parts: capturing the data and storing it, and probing it. The Patriot Act requires court ordered warrants for both actions. No one is arguing that these actions should be taking place in a secret or that warrants are not required. So what is it that Bacon objects to?

Bacon could explain his position or just continue to repeat his claim that we are on the slippery slope to an Orwellian future.

The other possibility is that if too many restrictions are placed on the use of metadata the slippery slope we will find ourselves sliding on will be taking us to a world filled with terrorism and crime that cannot be prevented because terrorists and criminals are using metadata to make themselves immune to capture and prosecution.

Which world are we heading for Mr. Bacon?


"Or is he in favor of protecting both types of thieves whose privacy is violated in order to catch them?" Now Jim, you're just being cheeky.

"For example, if a car is reported stolen and the police see it going down the street and stop it thus discovering the car thief in the driver’s seat should the case against him be thrown out because the police have violated his privacy?" Probable cause comes to mind, which in this case has absolutely nothing to do with wiretaps. The vehicle is reported stolen. Law enforcement sees it driving down the street. They do their job; simple.

Jim, you are simply being argumentative. I'd add that just because one doesn't see something as you do does not make them "libertarians, socialists, communists, politically right wing conservatives or anything else, other than just another person with a view ... that doesn't coincide with yours.

JCU, as stated prior, Don's a big boy and can handle his own, but in response to your question to him I'd offer that it wasn't until Snowden became a household name that this topic and the ones just like it began in earnest; and rightfully so.

Now back to Jim and his thoughts for a minute. It might be helpful, Jim, if you would at least recognize the possibilities and potential for that which you so vehemently defend. More information comes out daily that contradicts your staunch support on this matter, but you seem to either ignore it or just blow it off.

I don't see anyone here or anywhere else advocation the termination of US intel. I doubt anyone would question the need and the advantages that might be gained with good intel. Further, it is no secret that our government, as well as all other governments of consequence (think G-20+) have and use surveillance to protect themselves and find out what others are up to. Russia, Cuba, China, France, England, Italy, Greece and many more have been caught with their fingers in the cookie jar (France and China seem to get the most press).

The issue, IMHO, is not that we have and use all sorts of intel, but rather that we use it against US citizens in the US; and, that our leaders tell us it's OK, trust them. Not a snowball's chance in Hell, Jim. The temptation for graft is just too high and we have already seen multiple cases of violation.

You may be comfortable in your faith in government, but government is made up of individuals' and when we put faces to the people that make up our intel bureaucracy, we see that they are no different than us - they are human, with an eye for gaining an edge. It is natural, Jim. Even their Director just flat lied to Congress and us...three times on one question (that we know of). If the leader of this $80 Billion a year playground is willing to lie to Congress, what might that say about those that serve under him?

C'mon Jim - get real.

Here are a few more links to chew on. These links discuss, among other things, a term we just learned called "hops". In all three links, we see discussion of the NSA conducting "3 hops". Quoting from the second link below: ""Hops" refers to a technical term indicating connections between people. A three-hop query means that the NSA can look at data not only from a suspected terrorist, but from everyone that suspect communicated with, and then from everyone those people communicated with, and then from everyone all of those people communicated with." And you don't see a violation?

1) "The NSA Admits It Analyzes More People's Data Than Previously Revealed", Web Link

2) "NSA warned to rein in surveillance as agency reveals even greater scope", Web Link

3) "PBC News & Comment: NSA Spooks Give 3-Hop Spin on Capitol Hill", Web Link

This must stop. It needs to be reigned in and I suspect the pencil will be sharpened on this matter, PDQ. I don't know what the 'proper balance' will end up being, but I do know we are a long way from it now.


George you should direct your question to Don Bacon, he is the person who reported the New Jersey Supreme Court ruling as related to this issue. I agree with him, it is related.

When government employees break the law, they should be prosecuted and put in jail. That is not a reason to create laws that prevent the government from stopping terrorism. The phone companies and the Internet providers do not keep archives of metadata so if the government does not request this data and archive it, it is lost.


Jim, did you even look at the links provided? I hate to make assumptions, but one can't help but assume you didn't. Either you didn't, or as I noted above, you just blew them off.

Do you condone the 2 hop and 3 hop process that has been described and is being used? Do you feel OK with our government working with that protocol, using it to spy on US citizens within the US?

Since you like examples, perhaps an example would help. Let's say you have a problem with your vehicle. Let's also say that you have an auto repair place that you have used for years that you are very comfortable with, so you take your vehicle there for repair. You call to let them know you're coming. You take your vehicle in to drop it off. You are told to call back in a couple of hours for an assessment, so you do. The shop owner tells you what the problem is and says he can have it fixed in a couple more hours and says he'll call you when it's ready - and he does. You go get the vehicle, pay for the service and go home.

Now let's add some 'color' to get a better image. Let's say the owner of the shop, the guy you trust and have dealt with for years, is Lebanese born and raised. He's been in the US for 25 years and has become an American citizen. Let's also say that he has 3 brothers here, along with his parents. He is married to another Lebanese and they have 3 kids here. Let's also say that he owns 2 houses in SMC. You really like this guy and his family and he treats you right.

So far, so good, right. No conflict, no worries.

Now let's say something of magnitude happens, maybe like a 9/11 (God forbid) and because of this person's ethnicity and background, he is looked at by our intel. With the data collected and the NSA's use of 2 and 3 hops, you now become tangled in a web of espionage (as far as the NSA is concerned) and now you and your family are listed as possible terrorists and you receive visits from the FBI. You explain all you can, but they continue to dog you.

How do you feel about that Jim? You ok with that? Are you OK, as an American born and raised, being suspect in the eyes of national security just because you did what you've always done - take your vehicle to a guy that does good work at a fair price who you like?

To your point; "When government employees break the law, they should be prosecuted and put in jail." Is lying to Congress a crime? Should Clapper be indicted, arrested and thrown in jail. If not, where is the line Jim? Does it start with his assistant? Maybe the assistant's assistant?

Jim, you just aren't being realistic (IMHO). I have provided link after link describing in some detail the abuses that have become public, yet you ignore them. Why?


JCU, as stated prior, Don's a big boy and can handle his own, but in response to your question to him I'd offer that it wasn't until Snowden became a household name that this topic and the ones just like it began in earnest; and rightfully so.

In the mid 2000's, these were all big stories George. Warrantless wiretaps were actually justified using the exact same language as Larimer uses to defend the current program. The exact same language George.

The point that nobody here seems to interested in is that most Americans agree with Jim Larimer. Like the Bush Administration, Larimer presents the hot pursuit argument. Which like when Bush used it, was bogus as there were provisions regarding hot pursuit in the FISA rules.

Has not anybody noticed that Cheney and many former Bush Administration have accused Obama of implementing every facet of the Bush Doctrine of War on Terror?


The phone companies and the Internet providers do not keep archives of metadata so if the government does not request this data and archive it, it is lost.

Wrong. They keep archives for a long as they want. In many cases for years. One can reconstruct the Meta Data from the Archives. Think about what you are saying first. Maybe Google once in awhile too.


Yes, I remember, but that was nothing like this in terms of sheer data and the proof that Snowden has provided to date regarding identifying the types and amounts (volume). That is not to make your point insignificant, because it isn't, but the fuss over this during the Bush admin was nothing like where we are now and what we actually know now.

Apples to oranges; they're both fruit, just different types.


George, instead of making up stories in support of Don Bacon's vision of a future world with Big Brother looking over everyone's shoulder why don't you ask Bacon why he believes the New Jersey Supreme Court decision that said that the New Jersey police needed to stop and get a warrant before arresting a thief whose cell phone metadata led to his arrest? The NSA surveillance requires court ordered warrants.

You seem to believe that catching criminals who steal cell phones and stopping terrorism are completely unrelated. If metadata is off limits when pursuing terrorists according to Bacon's 4th Amendment claims, then doesn't this apply equally to catching ordinary thieves? If it boils down to warrants and no warrants, then how does this impact the NSA surveillance effort which does requires warrants?


Nary a mention of President Obama, but much ado about accountability and a bottomless well of consternation from all these Democrats. An environment in which tyrants thrive and republics die. There is no need to probe any deeper as to why, than the thinking of this -Jim Larimer & Grannyeg- whose voting habits the tyrants can bank on year in and year out.

These Democrats (electors & electees alike) will never admit that the problem is their political philosophy. Spending other peoples' money with impunity and scorning the principles of limited government are by far their most glaring defects.

The senators from ancient Rome have nothing on them. Party hardy.

Tootles!


The issue in the NJ case, as in the recent Supreme Court ruling it's based on, is whether police need a warrant to GPS someone. Good thing the answer is yes (for now), because otherwise we'll have a society where government can GPS anyone and everyone whenever they want, without a court warrant based on probable cause. Not the America we want to bequeath to our children. Warrantless GPSing is a bridge too far. Get a warrant, it's not hard.

John (I would dispense with the elaborate online monikers), in my work I was waist-deep in all manner of technical privacy and Fourth Amendment issues dating back to the '80s. George is correct that I address the issue now in general terms because our jurisprudence is at a crossroads, with two contradictory interpretative paths to choose from: a reasonable expectation of privacy, or the third party doctrine. Right now American courts are awkwardly straddling the two opposing principles, hence the rudderless results. Bottom line: our society is presented with a golden opportunity to ditch the third party doctrine.


Don Bacon has still not explained how including the address on the envelope as protected information according to his expanded interpretation of the 4th Amendment will not harm efforts to track down terrorists.

Does this also mean that the mailman will be given the same privilege an attorney has with his or her client when someone asks the mailman about where a letter is going?

Is not saving phone call pen lists worth the price that 5 acts of terror every year is likely to exact on our society? That is the number of terrorist attacks that have been prevented per year since this program was begun during the Bush Administration.


"George, instead of making up stories in support of Don Bacon's vision of a future world with Big Brother looking over everyone's shoulder, ..." Making up stories? Well, that story is a very true story that happened to the guy I've taken my vehicles to for many years. I would consider him a friend. We've been to each others' homes, he knows my family and I know his, I get a fruitcake from him every Christmas and in return I give him a very hard time about the fruitcake and give him the one he gave me the prior Christmas and so on.

Imagine my surprise when shortly after 9/11 we shared a few conversations about the FBI visiting him, his wife, his family and some associates that he had. I now wonder; did they "hop" over to me and my electronic records? Was my family under surveillance? Was I at risk of ending up at some fed facility, courtesy of Uncle Sam, with no rights and a secret trial? Were my emails viewed? my phone conversations monitored? Dod they track my comings and goings using the very device mentioned above...my cell phone?

That, Jim, was no made up story. That happened to him and I can't help but wonder if my life and the lives of my family were monitored, surveilled, at risk.

Btw Jim, you did not answer my questions from that post, nor did you acknowledge whether you read any of the links I posted.

Way to spin it, Jim.


>>Is not saving phone call pen lists worth the price that 5 acts of terror every year is likely to exact on our society? That is the number of terrorist attacks that have been prevented per year since this program was begun during the Bush Administration.<<

Five terrorist acts prevented per year. An interesting figure. Of course, its really all about the balance between giving up our freedoms and our security. Fair enough.

Jim, could you list those terrorist acts that were prevented? Could you characterize each by the magnitude of the threat and its likelihood of success, absent these controversial surveillance programs?

If we are going to make a determination about how much security to buy with our reduced freedoms then this information--at a minimum--would seem to be crucial to making an informed decision.

--Darin


Addendum.

Tyrants always rely on the courts to justify oppression in the name of safety & security, hence the fervor to nominate judges like Sotomayer who despise the limits placed on government by the Constitution.

Tootles!


Darin asks how many terrorist attacks have been thwarted because of US programs to discover and stop them. The press has reported that over 50 discovered acts of terror were prevented. Here is one report of this activity; there are many others, see Web Link.

Terrorism is a threat to people across the globe. Clearly US government actions cannot fix every problem in the world today or stop every act of terror. Here in the US terrorism means random acts of violence in public places to large-scale attacks such as 9/11. Not all acts of terror are caused by foreign agents set on disrupting civil life in America. There have been deadly terror attacks from homegrown extremists and lunatics in schools, theaters and in public places including a large-scale bombings of a public building that took over 100 lives.

I would not presume to know how to place a dollar value on anyone’s life or on the programs to defeat terrorism. In addition to the cost in human life, injury and permanent disability there are political costs. We have a military that is larger than the next 11 nations combined; surely we can spend some of our resources fighting terrorism that does not require going to war or invading another nation.

The assertion that is constantly being made on this blog is that using telephone pen lists to thwart terrorism violates the 4th Amendment and everyone’s right to privacy. The stated government policy is to require a court ordered warrant to use these lists. How is this different than the wiretap laws that have been used for decades to stop crime? Is there a threat to your privacy if a phone that is suspected of being used for criminal activities has called your phone for some none criminal purpose? If you are driving your car on a highway and observing the speed limit and your car’s speed is measured by a police radar system, has your privacy been imperiled?

The NSA programs are no longer a thinly guarded secret. Making their operation more transparent and accountable in the public record, just as wiretap laws are today, is a good direction for change. Ending these programs because of an unrealistic view of the meaning of privacy, however, is as wrong as it is silly.


Jim, again and still you avoid the questions provided you. Following your lead, I provided an example for you and asked your opinion in the form of multiple questions. You have not answered any of them, but instead act like they aren't there. Sup with that, Jim? I asked questions prior to that which you also have ignored.

Are the questions provided in too much conflict with your stated position? Are you able to bend or rethink your position, Jim, based on real life occurrences? Are you just not willing to approach any scenario that opposes your train of thought?

Yet one more, in a long list of dogmatic positioning, Jim states (in part), "The assertion that is constantly being made on this blog is that using telephone pen lists to thwart terrorism violates the 4th Amendment and everyone’s right to privacy." Is that really the question, Jim? or is it that that's the question you see and that you're basing all your thoughts to?

Jim, one of the main reasons more than a few jump your frame is that you just don't listen. You are not willing to 'hear' the thoughts and concerns of others that conflict with your views. You provide no give and take. Being stubborn and hard headed is not a cornerstone to fruitful dialog, Jim. Further, restating your position repeatedly and lastly doesn't make it right.

Might want to try full engagement, Jim. That would mean paying attention to other views as they are stated and not as you'd prefer to see them stated. It also means that if you are going to pose questions for others, be prepared to answer a few provided to you.

Your way or the highway does not qualify as legitimate discussion or dialog. Challenge yourself Jim. Go ahead, give it a try. Even if you make a mistake or two along the way, it's OK; happens to everyone.


Would you like me to restate all the questions asked of you, Jim? Would that be helpful for you? Would you even bother to look at them and provide honest answers?

You don't have to scroll up far to find them, but if it makes your life easier, I'll restate them (just the most recent ones) so they're all in one location for you.

Ignoring them or spinning them to your liking does not advance your position, Jim. Answering them might.


The question that Bacon asked at the beginning of this blog is, “What can the government lawfully learn about us, without our consent or a court warrant?” He concludes with, “In other words, the reasonable expectations of privacy we have developed toward one another are the polar opposite of the third party doctrine, which gives government warrantless and secret access to all information about us held by third parties, . . .”

The problem with this conclusion is that the evidence that the government is doing warrantless searches is missing. The NSA program requires warrants before searches can be conducted – there are no warrantless searches taking place enabled by government policy.

What is different and unique in this program is how modern technology is being used. It is now possible to archive large metadata files that contain information that requires a warrant from the court to view it. The law requires a warrant to obtain the metadata and a second warrant to look at a small portion of it unique to the conditions stated in the warrant.

Bacon’s objection boils down to a fear of storing the metadata, but the claim that it has been systematically used for warrantless searches as a matter of government policy is an overstatement of the facts.

Most of this blog has been about attempts to blur this distinction. Examples of illegal activities by government contractors or anecdotal evidence of warrantless or unjustified interviews by the FBI are not convincing arguments when the assertion is that we headed for Orwellian future is justified by these claims.

The world that Orwell described in his novel 1984 is an extreme world where privacy does not exist. Claims that our government’s policies have put us on a “slippery slope” to that world, when those claims are exaggerations of the truth is the second issue on this blog.

Blogs that make extraordinary claims without proof have become one of the realities of the information age. Evidence free assertions of corruption and stupidity at every level of government, whether it is replacing a bridge or stopping terrorism, keeps bloggers blogging. It is why very few people read or participate in these shouting matches. The bottom-line is that hyperbole and distortion of the facts will shed very little light on the choices we must make collectively through the democratic process.


Oh Jim, Jim, Jim; there you go again. If nothing else, you are consistent.

"The problem with this conclusion is that the evidence that the government is doing warrantless searches is missing." No it's not, you just prefer to consistently ignore it.

You continue to ignore all the data provided here and in other locations. I suppose the head in the sand approach works with some, like maybe Hatch students, but it doesn't cut it here.

Link after link after link provides data contradictory to your views; you just choose to ignore them. Further, you continue to talk philosophy, authors and dead people using that as a means of distraction - to avoid the evidence that is as plain as the nose on your face.

"Blogs that make extraordinary claims without proof have become one of the realities of the information age." That is particularly true when some, or in this case one chooses to ignore the facts and bypass uncomfortable questions that are the issue.

Jim, you are hopeless.


Here's a hypothetical thought construct to help sort through the issue of warrantless GPSing, and see whether it fits into one's reasonable expectations of privacy.

Imagine that car manufacturers were required by law to install GPS units on all new cars, so that the government could monitor and store all the GPS info, creating a permanent record of everywhere the car had ever been. Also imagine that, say, smog inspectors were required to do the same on all cars already on the road, so soon enough all cars were GPSed by the government all the time. For the sake of this hypothetical, imagine that the GPS unit could not be disabled without disabling the car itself.

I think it's safe to say that most people would find a scenario like that outside their privacy comfort zone, i.e., a violation of any reasonable expectation of privacy.

Now imagine an enhanced scenario, where the whole car-GPS unit thing was done secretly, and the law requiring the GPS monitoring was also secret, so the public couldn't know that their and everyone else's car was being GPSed 24-7.

Unfortunately that enhanced scenario is a much closer parallel to the recently revealed NSA programs, and I think clearly a violation of most people's reasonable expectations of privacy.

The moral of the story is that GPS monitoring by government, whether of cell phones, cars, whatever, should clearly require a warrant based on probable cause.


“The best way to spread democracy is to be the best example of a well-run society that prides itself on personal liberty and walks the walk.” - - - - - Yes. Yes. Yes.

Jim, you were making a reasonable argument until you said the following: “The political right does not like taxes and they now are claiming that any tax means socialism,” and “The political right also does not like any form of regulation.” At which point you proved once again that you think nothing of throwing reason to the winds.

“Bacon could explain his position or just continue to repeat his claim that we are on the slippery slope to an Orwellian future.” - - - - - Don explained his position as well as or better than anyone has for a long time HereAbout.

“Do you condone the 2 hop and 3 hop process that has been described and is being used?” - - - - - George, Your hypothetical is a beautiful description of the problem.

I wonder if Jim believes that a warrant should EVER be required in ANY situation wherein the authorities MIGHT be able to obtain information that MIGHT be useful in thwarting crime.

“The press has reported that over 50 discovered acts of terror were prevented. Here is one report of this activity; there are many others, see ---“ - - - - - Jim, I read the article you linked including a good number (but not all) of the examples listed. I saw nothing that indicated that warrantless searches or the use of data collected at random regarding American citizens was involved.

Stopping all terrorism is, of course, impossible. If attempts to do that require us to waive our liberty, our freedom from tyranny, and the protections of our Constitution – what is the point? We might just as well join them.

“There are no warrantless searches taking place enabled by government policy.” - - - - - Oh good grief!


Jim,

You said that five acts of terror were prevented every year since the Bush Administration due to the newly revealed surveillance programs. I asked for a list. You linked to a list of *all* terrorist acts.

We're not debating the balance between *all* law enforcement programs and *all* terrorists acts. We talking about the value of these programs, the net contribution of these secret programs.

From the Heritage Foundation's list (ahem) can you point to those where PRISM and related programs were key to preventing an attack?

--Darin

PS A number of the "foiled plots" on the list are of the "find an extremist, rev him up, give him a bomb, tell him to press the button, and arrest him" variety. Different topic but be wary.


Here's one from today: "Obama, lawmakers square off over NSA authority", Web Link

Had to post this one, if for no other reason than as a picture perfect example of irony.

From the piece (in part): "We oppose the current effort in the House to hastily dismantle one of our Intelligence Community's counterterrorism tools," White House press secretary Jay Carney said in a late-night statement. "This blunt approach is not the product of an informed, open or deliberative process." Say what?

Just priceless. Maybe Mastercard can start a new ad campaign from this.


We see above that at least one poster here believes the public concern about our rights, the Fourth Amendment and all else that goes with this Snowden revelation(s) is minimal, or probably better stated, that the majority of Americans polled are not overly concerned: "The point that nobody here seems to interested in is that most Americans agree with Jim Larimer." Bring Me The Head Of The Baptist, a resident of Another Coastside community, on July 22, 2013 at 7:22 pm

I remember questioning that statement, but then thinking that it depends on the survey and the questions provided in that survey. I also recall thinking that the momentum from the Snowden revelations was growing and that if that statement were true, it was hanging on by a thread and would change.

Well, turns out it has changed: "Polls show Americans still bugged by NSA surveillance revelations", Web Link , and I for one am glad to see it. I am not at all surprised. The question going forward is: what can we do about it?

This third party doctrine that Don describes looks like it may be in for an adjustment or two. We'll see.


Today, an amendment to a Defense bill meant to defund the NSA's collection of data about Americans phone conversations.

The amendment, in a super bi-partisan vote, was defeated. Wing nuts at both ends of the political spectrum tried their best but the powers that be in both parties voted to stay the course.

Even Michelle Bachmann and The Heritage Foundation stood shoulder to shoulder with the Obama/Bush spy regime.

Bachmann also argued that defunding the program will hurt America’s counter-terrorism efforts: “If we take this program and remove from the United States the distinct advantage that we have versus any other country,” Bachmann said, according to the National Review, ”it will be those who are seeking to achieve the goals of Islamic jihad who will benefit by putting the United States at risk, and it will be the United States which will be at risk.” --- Michelle Bachmann

So as we all can see. Those with the power want the NSA to protect them. It doesn't matter to those with the real power in America who administers the program. What counts is maintaining their safety and privilege. Those kinds of people are afraid of you.


I am so glad that the closest she got to the WH was the cheap seats.

It would be prudent of Congress not to jump on the first horse that comes along, but rather get all the data they can and discuss it, with the goal of making changes (domestically) that will better protect our rights and still benefit US intel. They can do it, IF they really want to.

I didn't see the language in the bill. It may have been perfect, but the odds don't favor it. I just don't want to see them make the same mistake again - being hasty and not thinking things through.

There will be changes, but I'm OK with waiting a little longer for the right changes.

Maybe Don can forward his thoughts (this piece) to the Big Fella for consideration.


The Amash amendment had 94 republlcans and 111 democrats voting in favor of adoption. Party leadership (Boehner/Pelosi) on both sides of the aisle voted against adoption - 134 republicans & 83 democrats.

Analysis.

The RINO's control the purse strings of the party machine, who also control the committee selection and chairmanship process. Whereby, the strong arming associated with such, also gives cover to big government democrats like Pelosi so she can be seen as patriotic. And obversely, giving cover to probably more than half of the 111 democrats to buck their party machine. Party politicking i.e.- treating elections like a horse race is the source of the misfeasance before us.

Democrats and their progressive political philosophy are unhealthy for a thriving young republic, but these RINO's will be the death of it.

Keep your eye on those 94 republicans and about 30 or so of those 111 democrats - they may be the last hope for this republic as founded, where individual freedom is paramount.

Tootles!


Analysis.

All of this starts with The Patriot Act. The voting majority bought the lie that Osama was the biggest threat to our life and liberty.

Very few of our Representatives read the Patriot Act. Few Americans cared when the Telcoms were given Retroactive Immunity per their cooperation with our Security Apparatus. Few said jack about warrantless wiretaps. Most supported Enhanced Interrogation, Extraordinary Rendition, Gitmo, and suspension of Habeas Corpus at the whim of a President.

The Majority of Americans were and are OK with all of it. And if somebody points out that we are abusing the principals of our Republic so as to enhance the perception of our security, they were accused by such as Liberman, Bachmann, and Pelosi of playing into the hands of The Terrorists.

Obama is in charge so he deserves the blame for continuing these policies but he won't pay any political price for it. Neither will any of the Party Bigwigs who support these kind of policies.

All they have to do is look at the support they have received for all that I listed above.

It is on us. We need to make it clear to our leaders that we prefer to live with the risk of a 9/11 vs risking losing everything that Osama supposedly hated about us. We need to make it clear that we are more afraid of our Government than we are of a briefcase nuke, or anthrax, or worse.

As now as it was then:

Give Me Liberty or Give Me Death


I didn't have time until now to read the last few days worth of

postings in this complicated topic. Caught up now but I will keep my comments relatively brief, considering how much there was to comment on.

There was a reference to a 2008 movie about a computer taking over. Apparently people didn't see or forgot about the much older movie "Colossus: The Forbin Project". It disabled its own "off" switch...

Warning: Troll bait:

Jim wrote "The political right also does not like any form of regulation." Wrong as usual, Jim. They like to regulate what everyone can do in their own bedrooms, and regulate what women can do with their own bodies. They want to impose their religion on others. And those are just what comes to mind at this moment.

As to warrantless vehicle locating via technology, that's been going on for a long time and not at all in secret. Ever heard of Lojack? No time to get a warrant! The whole point of Lojack is that you discover that your car has been stolen, you immediately call the local police and tell them your Lojack info, they immediately activate it, and generally recover the car intact in 15 minutes. I'm not going to research it but I suspect that nobody has ever challenged the legality of Lojack.

Come to think of it, there are Lojack programs for laptops and I think even cell phones.

What makes all this Lojack tech acceptable and legal when most parallel uses are not? Simple: it's implicitly authorized by the owner of the stolen property, otherwise they wouldn't have it installed in the first place. There's a huge difference between warrantless recovery of my stolen property and warrantless tracking of me.

Jim must have been a fun Pin the Tail on the Donkey player. He can't tell left from right. At least he admitted it.


Apparently, this -watchdog- conveniently forgets about the real life FBI computer commissioned by President Clinton and the Democrat majority in Congress - Carnivore. They did not even bother with an off/on switch (neither hardware or software); when challenged in the press, they just change its name.

Of course researching this is too much effort for this lazy -watchdog- who is asleep on the job.

Tootles!


I guess they need this to keep a list of phone numbers.

Web Link


This really is amazing, when one stops to think about it.

The piece Barnus links is titled, "The NSA's New Spy Facilities are 7 Times Bigger Than the Pentagon". It starts out with: "He works at one of the three-letter intelligence agencies and oversees construction of a $1.2 billion surveillance data center in Utah that is 15 times the size of MetLife Stadium, home to the New York Giants and Jets."

And here is the following paragraph: "In May, crews broke ground on a $792 million computing center at the agency’s headquarters near Baltimore that will complement the Utah site. Together the Utah center and Maryland’s 28-acre computer farm span 228 acres—more than seven times the size of the Pentagon."

The size and scope is mind boggling. One has to wonder several things while reading this piece and others we've seen posted just like it. The fed is pumping $87 Billion a month into the economy buying US debt (bonds, bills and mortgages). I's the QE Infinity, as it's called. While that is transpiring, we see the Defense Budget exploding, providing us with this and other government facilities whose stated purpose is to protect America (at everyone's expense, apparently).

For as long as I can remember, and I remember Eisenhower as President, we have been consistently told by Presidential candidates that government is too big and needs to be pared down. When one of those candidates wins, however, it has and continues to be 'game on'.

One can't help but wonder what kind of economy we'd have without government spending. Just look at the numbers Uncle Sam provides in jobs.

So, it appears one could surmise that it was government spending that, coupled with the lack of regulation, that got us in trouble in 2008, and government spending that has thwarted an economic collapse after.

Where would we be without those trillions of dollars that government spends annually? I ask for several reasons, but I would have to believe that that is one of the considerations of those that hold the government pursestrings (Congress); and yet we haven't had a Budget in how long?

On a side note, should I ever go blind, or lose my hearing or in any other way become 'handicapped' (can I say that? is that the term used in today's discussions?), I know right where to go to get a (sweet) job.


Defense spending, at the level of the US, is like a drug addiction. It always requires more to follow and always ends with bad results.

For the $4.5T will have spent on Iraq and Afghanistan combined, we could have put solar panels on nearly every home in the US, consequently driven down the cost of solar technology and saved billions in utility costs, pollution and health-related consequences of both war and fossil fuels.

Spending is okay when it's strategic. Spending billions on spying and war points to a corrupt and declining culture.


You can't say defense spending "always ends with bad results." It's a must. As the saying goes, "Every country has an army. Their own or someone else's."

Countries also need to spy to stay safe. The question is what kind of spying gives the best and worst return on our money.


Does anybody except maybe for Professor Larimer think they are storing only metadata at those facilities?

Predictive Real Time Total Information Awareness is what they are trying to achieve. Why else would they need supercomputers?

I said it before. I am going to repeat it again.

It is on us. We need to make it clear to our leaders that we prefer to live with an elevated risk of a 9/11 vs risking losing everything that Osama supposedly hated about us. We need to make it clear that we are more afraid of our Government than we are of a briefcase nuke, or anthrax, or worse.

Yet nobody does. How many of you would stand behind a President that told us that she prefered to maintain our privacy vs doing everything possible to prevent a weapon of mass destruction being used against us?

George? Honeybadger? trolltracker? Barnus? Bacon?

Are any of you willing to state that you would back anybody who tears up the Patriot Act in spite of the fact that doing so would enhance the risk of another 9/11 or worse? The reason this is important is that inevitably, another Oklahoma City type operation is going to succeed. When it does, people like Pelosi and Liberman and Bachmann and Cruz and Giuliani, and Cain, and Biden, and Obama are going to use it against any political opponent that advocates we stop all this data gathering and analysis.

Anybody care to step up and declare their support for any political that try to do a "Jamie Gorelick" on?


The question is what kind of spying gives the best and worst return on our money.

That is a good one but hardly the most important.

The question is, how much Liberty are we willing to cede to our Security Apparatus in exchange for an enhanced perception of safety?


It reminds me of people who are ultra clean and sterilize and disinfect everything. Then they wonder why their child has no immunity to germs. You have to clean up the gross, obvious stuff but you don't have to go overboard.

Go after the obvious and don't sweat the small stuff. Find out who's buying things to make bombs. Track people who go back and forth to and communicate with countries who would just as soon see us all dead.


Well John, you ask a lot of questions and couple them with a lot of comments. I am not in a position to speak for others, but I can speak for myself.

I am not interested in abolishing US intel. Even if they only 'get it right' one in ten times, and that one time prevents substantial terrorism here in our country, it is worth it to me. You say (and you're right, you've said it multiple times): "We need to make it clear to our leaders that we prefer to live with an elevated risk of a 9/11 vs risking losing everything that Osama supposedly hated about us. We need to make it clear that we are more afraid of our Government than we are of a briefcase nuke, or anthrax, or worse." I have not commented to this comment to this point because I am not comfortable with it.

I do not want another 9/11. Once was too much. I would like to think that I am not so naive as to believe that we will not experience any terrorism within our shores, though. We will. In fact, I am surprised that we have not already had more. Actions like suicide bombers, where all the ingredients are right here, I expected after 9/11. Fortunately, we just haven't seen that here, yet; and that is probably a credit to our intel, at least to a large measure.

I think I like the question Don has framed as opposed to any of the questions you have framed. I also think Don's question has hit at the heart of what is troubling me and his remedy is the right approach, again IMHO.

To think, let alone believe that we are immune to domestic terrorism is terribly misguided (IMHO) and naive. Reasonable measures to prevent terrorist activities in our country are welcome (by me, anyway) and necessary, if for no other reason that to maintain our version of society. If I wanted conflict, terrorism, loss of family through terrorist activities, I'd move to Lebanon or another 'active' part of the world. I live here for numerous reasons; the rights to freedom being one of them.


The word that continues to pop up in my mind is "Balance". There is a balance. We just have to figure out what it is, where it is, and get it.

It seems fair to say that we don't have it right now.


If NSA needs something to do to justify the hundreds, thousands? on their payrolls, why don't they investigate the shenanigans going on in the banking industry and Wall Street? Include the real estate industry too. Now that would be a real service to the American people.


The fact that nothing like a 9/11 has not occurred seems to indicate that:

a) The threat of such is not nearly what we were told.

b) The NSA is well on its way to Predictive Real Time Total Information Awareness.

The fact that folks want balance is great but does that mean you are will to trade some perceived security in exchange for stopping the erosion of our liberties?

We as a Nation, way overreacted to 9/11. We are destroying the very qualities of our Nation that we are told the Terrorists hate and want to destroy.

Our leaders created the Patriot Act and DHS so that they could have something to point to a say, "See, I am tough on the terrorists!" Hardly any, (Ron Paul being a huge exception), read the damn thing. We are dealing with the precedents set by the previous administration. The next Administration will be dealing with and expanding upon the ones being set by the current Administration.


JS - list all of the good things that have come from our defense spending (which is greater than the next top 10 spenders COMBINED) since 1945 that actually relate to defense, not spin-off technological benefits like Kevlar.


> list all of the good things that have come from our defense spending

OK, I'll bite. How about the fact that we're still a sovereign country.

But if you're talking about the amount we spend or waste that's another issue.


How many of you would stand behind a President that told us that she prefered to maintain our privacy vs doing everything possible to prevent a weapon of mass destruction being used against us?

Me! Me! I would. The problem is that there is no end to "everything possible." Obviously we should take reasonable measures to protect against terrorism - but what is reasonable? Is it reasonable to maintain personnel and facilities to spy on Americans that dwarf the armed forces? The kind of surveilance of Americans that we are paying for is simply unnecessary. For the most part there is no legitimate use for the data being stored, but there is the potential for great abuse - which means, of course, that there will be abuse. That it might occasionally result in a criminal being caught does not begin to equate with the loss of privacy and liberty and damage to Constitutional rights that it entails.

-


Here's an interesting read: "Chief Justice John Roberts: The hidden hand behind the surveillance state", Web Link

It seems that since Snowden made his claims more attention and focus is being provided to FISA (Foreign Intelligence Surveillance Act) and FISC (Foreign Intelligence Surveillance Court), the "secret court" that hears the government requests.

From the piece (in part):"..the secret court that decides how far the government can go before its snooping violates the Constitution — may have something of a puppet master: Chief Justice John Roberts of the Supreme Court."

"Roberts, Savage says, "has been quietly reshaping the secret court" by packing it with Republican-appointed judges, many of whom are former executive branch officials. Critics say Roberts' selections are more likely than other jurists to defer to the government when it says its domestic spying and data-mining are necessary to protect national security."

"Savage and other reporters have noted that Roberts has assigned all 11 of the court's judges, 10 of whom were originally appointed by Republican presidents. The numbers make the government's extremely high success rate at the court appear fishy — and it doesn't help that the secret court only hears one side, the government."

I am cautiously optimistic that some change will now take place on this matter. We have seen and heard much on this since Snowden's release of data, with front page news across the country on a daily basis. We have seen Congress lied to during Committee investigations by this nation's Director of National Intelligence James Clapper ( Web Link ), "Clapper: I gave 'erroneous' answer because I forgot about Patriot Act". We have seen the absolute explosion of government spending on ginormous structures that serve only one purpose, to collect and store all electronic data on everyone possible, including all Americans within America 24/7/365, and secretly use that data at will whenever desired (even years into the future) - and lest we forget that it takes people to fill those positions from within those structures and from the outside as well.

Congress, who holds the pursestrings for these ambitious government programs has threatened to zip up that purse, thereby defunding intel and no doubt each member of Congress has to be concerned about their own privacy.

When we read stories like this one, and cross reference them against folks with opinions like that of Larimer, it is very difficult for any reasonable individual to follow Larimer's 'logic' and "trust" those that we elected and more importantly those that are appointed by those we elect, and those tens of thousands that are hired by those appointed by those elected.

Yes, this is a mess, a mess of grand proportions, but I am hopeful the right changes will come. Change, just for the sake of change (as we just saw with the attempted shutdown of intel funds), is not a good idea. Change, for the sake of complying with the Constitution, however, may be just what the privacy doctor ordered.

Time will tell. Let's hope Congress gets this one right.

As an aside, this piece also raises another significant point; one that I am hopeful that Mr Bacon might chime in on - with the US Supreme Court Chief Justice picking all eleven of the FISC judges, one has to 'wonder' how any type of appeal to the Supreme Court of a FISC decision might be heard and handled?


10 of the 11 Judges that Roberts chose were made Judges by Republican Presidents.

Let's hope Congress gets this one right.

Get it right? Not likely when even Cruz and Bachmann are down with the Obama/Bush doctrine.

Me! Me! I would.

Explain how you backed up Clinton and Jamie Gorelick.


The -trooltracker- cannot answer this -JCU's- question of tearing up the Patriot Act because he throws in the straw man that assumes the premise that without this law in place, it destroys all capabilities of our intelligence agencies.

Another review of the Amash amendment is in order.

Tootles!


The -trooltracker- cannot answer this -JCU's- question of tearing up the Patriot Act because he throws in the straw man that assumes the premise that without this law in place, it destroys all capabilities of our intelligence agencies.

Nice try tootles but I have railed against the Patriot Act from the start. Ron Paul is my hero on that one. I am of the opinion that folks who say stupid things like this:

We need to deal in facts, and the facts are real, and the facts are these: The only people who have benefitted from the revelation of classified information by someone who worked for this government, who intentionally and unauthorized declassified some of the most sensitive national security information that we have, the only result is that those who are engaged in Islamic jihad will have been benefitted. And those that we seek to protect have not. -- Bachmann

:are stupid.

The law cited that both Republican and Democrats use to defend what the NSA is up to is contained in the Patriot Act. In that same act, the Government was authorized to gather your Library records and your librarian was made to be a criminal if she told you that your records had been requested.

Would you support removing the foundation used to build upon such notions as the Government keeping tabs on what you checkout at the Library and gathering all of the Meta Data on your phone calls?

Or are you supportive of the Patriot Act but don't trust the current administration to implement it wisely?


This -JCU's- unhealthy obsession with Ms. Bachman and willy-nilly endorsements of Ron Paul does not eliminate his straw man.

His final question above also assumes 2 false choices. The -trolltracker- will assume (rather confidently) that he does not understand Section 215 of the Patriot Act, nor the language of the Amash amendment.

Slow down a wee bit and re-read everything that this -don bacon- has written. Then you can experience (with confidence) the truth of the -trolltracker-.

Tootles!


"Explain how you backed up Clinton and Jamie Gorelick." Who; me?

"Or are you supportive of the Patriot Act but don't trust the current administration to implement it wisely?"

It is foolish to believe that a law will be implimented wisely if the law is very broad or allows for more than one interpretation. Whenever you are dealing with a large number of enforcers endowed with great discretion, most of whom are anonymous - the law will be abused.

I have no problem with the provisions of the Patriot Act that allow for eavsdropping on calls from without the country. I have no problem with warranted eavesdropping on Americans believed, for good cause, to be in league with terrorists. I cannot abide keeping track of and storing information on Americans who have never given anyone any reason to suspect their loyalty or lack of criminality.


The Patriot Act is the law that Administration, The Congress, and the Courts cite that they say makes all of this cool.

trolltracker may not like that and he may not like the fact that Republicans supported it more than Democrats. He might not like that Justice Roberts appointed all 11 Judges who interpret the law. He might not like the fact that 10 of those 11 judges were appointed by Republican Presidents. He might not like that Tea Party Icons like Cruz, Bachmann, and the Heritage Foundation all support the what the NSA has been up to.

Who cares? trolltracker is a one trick pony who refuses to admit that his guys are just as much a threat to baseball, hotdogs, apple pie, and Chevrolet as are my guys and their guys and those guys. And dang it. Bachmann is HOT and represents my home district in Land O' Lakes. I'll dang well be infatuated with anybody I want and their ain't dang thing Obama or trolltracker can do about it.

Amusing when shills of any persuasion struggle to defend what their guys are doing when their guys are doing the same thing as the guys that those same fundamentalist partisans have been bitching about.

Americans need to get it. It ain't Democrats and it ain't Republicans. It is US. We allow it.

People like trolltracker and Larimer are a what make it possible for such as Obama and Bush to get away with this kind of stuff. Both know that they can count on such as trolltracker and Larimer to run interference for them.

His final question above also assumes 2 false choices.

The exact same line of logic used by supporters of Obama/Bush doctrine in its defense.


"Explain how you backed up Clinton and Jamie Gorelick." Who; me?

Yeah you, if you can.


Perhaps if this -JCU- re-read the entirety of the -trolltrackers'- posts he would realize that the last paragragh of this -Barnus'- latest posting sums up the position of the -trolltracker- very nicely.

And the Bush Doctrine is something else entirely.

Tootles!


Here's a good article reporting a former FISA judge's criticism of the way the court is run:

Web Link


From the article linked by Bacon:

Robertson quit the FISA court in 2005, days after the New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush's administration. Robertson had previously refused to explain his decision. But during a break in the hearing Tuesday he confirmed for the first time to the AP that he had "resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps."

Tootles made this profound, "I know you are but what am I" assertion:

And the Bush Doctrine is something else entirely.

Chief Justice Roberts was made a Chief Justice in the fall of 2005. Since then he has stacked the court with Conservative Judges 10 of whom were made judges by Republican Presidents.

Sounds to me like those that approved the Bush/Cheney Doctrine are well entrenched.

Heck, even Dick Cheney claims that the Obama Doctrine is the same as the Bush Doctrine.

I sure wish guys like Larimer and Bacon would tell us what their positions were on this stuff back in say, 2005. Larimer is a smart and logical man. I figure his principles apply equally to both Bush and Obama. Bacon is a smart and logical man. I figure his principles apply equally to both Obama and Bush.

Try as I might though, I can't find Larimer making a passionate argument in favor of anything the Bush Administration did per the War On Terror. Neither can I find anything that Bacon said that can be interpreted as a criticism of anything done prior to 2009 in the name of the War on Terror.

I can find tons of Bush detractors who have nothing to say about the Obama Doctrine. I can find lots of Obama Detractors who accused folks of less than patriotic motives when they criticized the Bush Doctrine.

And unfortunately, I can find 300 million Americans like Tootles who find comfort in pretending that the problem is either Democrats or Republicans but certainly not theirs.


John will note that during the Bush era, I was so moved by the all-sided assault on our Constitution that I decided we could use a much more ironclad, bulletproof, less twistable 21st century version of our Constitution. I even posted different iterations of my "Re-Constitution" here on Talkabout. It might be interesting, for the purposes of this thread, to see whether my treatment of privacy, and searches and seizures, holds up under the current revelations. Here is one relevant passage:

"9. Right of privacy, to be secure upon private property from searches and seizures unless with written warrant, issued by the court of jurisdiction to law enforcement authorities after presentation under oath of substantial evidence of probable wrongdoing, and which defines the limits of the search and persons or things to be seized. In public, persons and personal property are subject to non-warranted search and seizure only under exigent circumstances and upon evidence of probable wrongdoing, or as a security precaution before entering a public space. Absent a compelling interest, government shall not constrain persons' conduct of their private lives."

By the way John, for the record, I oppose both political parties. I consider them competing gangs, like crips and bloods, neither one supportable.


I do remember that Don. Did not remember that it was you though.

Thanks for responding. Maybe Larimer will have what it takes to prove me wrong about him.

So Don, are you as distressed as I am that so many Americans refuse to see that their guys are in solidarity with the other guys when it comes to enhancing our perception of security? What do you think of my contention that neither Republicans or Democrats need to worry too much about what their supporters think of the their support for the Bush/Obama doctrine?

Who is responsible, us or them?


Can't let this one slide - "The NSA’s Data Quality Problem", Web Link

Now, one would think that particularly in such an extreme high profile situation, they'd be pixel perfect; one would have to believe.

I ask you; if they screwed this matter up as badly as is being reported, in such a high profile situation, with other nations involved no less, what makes anyone truly believe that they would be any more detail oriented in front of the FISA court?

As noted above, we are all human and 'mistakes' are made, although not many get the attention this one is and should be getting.

And this is on top of Clapper lying to Congress, claiming he forget about the Patriot Act when he falsely answered a direct question about surveilling Americans in America - forgot - despite the fact that he got the questions in advance to prepare for.


Amusing how silent the Googlers become when the -trolltracker- speaks.

The Bush Doctrine (term used by New York Times incessantly to pigeon-hole GW's foreign policy) drove all you progressives/commies insane. Nation building & pre-emptive strikes would be the proper context as per the progressive/commie philosophy pushed by NYT and regurgitated by PBS for years.

If this -JCU- wants to be contextually correct.

Tootles!


Addendum.

If this -JCU- were paying closer attention to the schtick of the -trolltracker-, he would see why the -trolltracker- is ruthless to the point of being "mean".

The answer to -JCU's- question of responsibility may be found contextually in every post (generally) of the -trolltracker-. Political philosophy is the heart of the matter and the root of our troubles with the corruption and abuse of governmental power that we have before us - NSA.

As humans, we all suffer from the Seven Deadly Sins, therefore, as a people united under government, we need the limits placed on governmental power (federalism most generally) that are found in the Constitution & Bill of Rights. Put simply, honoring the principles of limited government is vital for the rule of law.

The -trolltracker- very rarely finds respect for this document (Constitution) coming from people who vote for Democrats & RINO's, hence the enthusiasm of the - trolltracker-.

The foresight of our Founding Fathers is awe-inspiring. Most especially for the fact that they left us a prudent method to alter the document that is the basis of the rule of law. Congressional, executive, and judicial decrees by fiat is not the way to honor the sanctity of the individual.

Something to put in the pipes of the flower children other than mary jane.

Tootles!


It is flattering to have groupies who prefer to talk about me than the topic.

But again I have to ask, how can anybody be so self delusional as to think they know which side to blame when the Leadership of all Parties, the Courts, the Congress, and both post 9/11 administrations have signed on to and indeed defended the policies everybody here except Larimer find abhorrent.

This poor groupie refuses to acknowledge that a Reagan Republican, appointed by Bush the W has stacked the FISA Courts with Republican Appointed Judges, who have signed off on 99.9% of Everything that has occurred at the NSA since 2003.

This poor true believer is so in love with his shtick that he really believes if not for Democrats and RINOs, that the Supreme Court Chief Justice Appointed By Bush, who has appointed all 11 Judges on the FISA Court, would have had a different attitude.

This poor illeist whose accuses me of having an unhealthy thing for Bachmann, (who by the way is even hotter than Palin), doesn't see his own obsession with me.

If any of this doesn't comport with your views, it is because you have not paid close attention to my schtick. Go real my profound words again. Then say something about a topic other than me.


Yet another story on NSA capabilities and abuses: "Glenn Greenwald: Low-Level NSA Analysts Have 'Powerful and Invasive' Search Tool", Web Link

From this piece (in part): "The NSA has trillions of telephone calls and emails in their databases that they've collected over the last several years," Greenwald told ABC News' George Stephanopoulos. "And what these programs are, are very simple screens, like the ones that supermarket clerks or shipping and receiving clerks use, where all an analyst has to do is enter an email address or an IP address, and it does two things. It searches that database and lets them listen to the calls or read the emails of everything that the NSA has stored, or look at the browsing histories or Google search terms that you've entered, and it also alerts them to any further activity that people connected to that email address or that IP address do in the future."

This is truly scary stuff. To dismiss or discount it is a mistake (IMHO).

"There are legal constraints for how you can spy on Americans," Greenwald said. "You can't target them without going to the FISA court. But these systems allow analysts to listen to whatever emails they want, whatever telephone calls, browsing histories, Microsoft Word documents."

"And it's all done with no need to go to a court, with no need to even get supervisor approval on the part of the analyst," he added.

And for the other side of the coin, we have this from Senator Saxby Chambliss; "It wouldn't just surprise me, it would shock me," Sen. Saxby Chambliss, R-Georgia, said on "This Week" Sunday.

"I was back out at NSA just last week, spent a couple hours out there with high and low level NSA officials," Chambliss said. "And what I have been assured of is that there is no capability at NSA for anyone without a court order to listen to any telephone conversation or to monitor any e-mail." OK Senator; gee, if you really believe that then it must be so...

Chambliss said that any monitoring of emails is purely "accidental."

From the piece; Greenwald is set to testify before a Congressional committee on Wednesday, along with NSA officials. He said the existence of these analyst search programs are in line with the claims of Edward Snowden, who first leaked details of the NSA's surveillance programs to Greenwald."

NSA officials are going to be testifying before the Senate on Wednesday, and I defy them to deny that these programs work exactly as I just said," Greenwald said.

Get the popcorn ready folks. We're in for quite a show on Wednesday - and well into the near-term future I suspect. This appears to just keep snowballing by the day.


As long as Republican Politicos can count on theirs and as long as Democratic Politicos can count on theirs, our politicos will continue do what they are doing.

They are doing the bidding of their corporate donors. Corporations have partnered with Government because it is profitable.

The Military-Security-Media-Corporate complex is raking it in and it matters not whether Republican Turds or Democratic Douchebags are in charge.

We bitch about theirs but never hold ours to account for doing exactly what theirs are doing.


This -JCU- misses the point again. People like him who vote for people like Obama are where the responsibility lays (RINO's included). Buying into Obama's schtick the first time could be forgiven (if we were to ignore the principles of limited government), but voting for him a second time is an afront to all sensibilities. Then the lot of you caterwaul about the lack of respect for the principles of limited government from these big government types like Obama.

Philosophy like character matters.

Tootles!


Yeah you, if you can.

I'm so confused. I honestly don't know what you are talking about. When and how did I back up President Clinton or Jamie Gorelick?


George notes something very questionable about the FISA court, that the Chief Justice is the sole appointer, apparently without any executive branch vetting or congressional confirmation process. That appears to put way too much power in one person's hands. And since the Chief Justice is so young, he will have that power (to solely determine who sits on the FISA court) for possibly decades to come. I don't see the checks and balances in that setup.

Now how appointees will actually behave on the FISA court, based on party affiliation, may be as difficult to predict as last week's Amash amendment vote, which really shook up the party line snow globe. Both parties showed seismic cracks on the amendment, and if seven people had changed their votes, the amendment would have passed. Twelve members of Congress declined to vote at all. Pelosi worked hard to rally votes against the amendment, yet has been taking friendly fire and retreating ever since. So as this issue shakes out, it does not appear it will do so along traditional party lines.


When and how did I back up President Clinton or Jamie Gorelick?

That is my point Barnus. When Gorelick chose to protect Americans by enforcing the laws meant to constrain the CIA's spying on Americans, Conservative Media and Republican Politicos savaged Gorelick and blamed Clinton for 9/11.

And it was very effective. So effective that ANY political who dared to question the Patriot Act, Gitmo, Operation Iraqi Liberation. or Bush the W's prosecution of the War on Terror, was labeled soft on Osama. Thus we got the Patriot Act, Gitmo, Operation Iraqi Liberation. and the War on Terror.

The precedents and legal justifications for everything Obama is doing were set long ago.

Ron Paul, as I have been saying since the 9-12-01, is the only politico who has consistently had the guts to oppose all of it.


It was heartening to see that the Manning kid got off on the most serious charge of aiding and abetting the enemy. That would have gotten him life in prison. He was guilty of passing along classified info to Wikileaks and will get jail time for that.

Maybe the military is realizing that they have the most to lose when the politicos, safe in their Washington enclaves, come up with these hare brained schemes where other people have to put their lives on the line for what? See Iraq and still in Afghanistan five years after Obama elected.


Just when we thought things were drying up a bit (aside from Snowden's acceptance by Russia, of course), I ran across this: "Google Pressure Cookers and Backpacks, Get a Visit from the Feds", Web Link Now I have to wonder out loud - where's Mr Larimer now? How would he defend this one?

Here's how it starts out: "Michele Catalano was looking for information online about pressure cookers. Her husband, in the same time frame, was Googling backpacks. Wednesday morning, six men from a joint terrorism task force showed up at their house to see if they were terrorists. Which begs the question: How'd the government know what they were Googling?"

Well c'mon, I'd say we have a pretty good idea how the government knew, wouldn't you?

It continues with: "Catalano (who is a professional writer) describes the tension of that visit.

[T]hey were peppering my husband with questions. Where is he from? Where are his parents from? They asked about me, where was I, where do I work, where do my parents live. Do you have any bombs, they asked. Do you own a pressure cooker? My husband said no, but we have a rice cooker. Can you make a bomb with that? My husband said no, my wife uses it to make quinoa. What the hell is quinoa, they asked. ...

Have you ever looked up how to make a pressure cooker bomb? My husband, ever the oppositional kind, asked them if they themselves weren’t curious as to how a pressure cooker bomb works, if they ever looked it up. Two of them admitted they did.

One more quote from Catalano: "They mentioned that they do this about 100 times a week. And that 99 of those visits turn out to be nothing. I don’t know what happens on the other 1% of visits and I’m not sure I want to know what my neighbors are up to."

One hundred times a week (100)!

And this is how the piece concludes: "One hundred times a week, groups of six armed men drive to houses in three black SUVs, conducting consented-if-casual searches of the property perhaps in part because of things people looked up online."

"But the NSA doesn't collect data on Americans, so this certainly won't happen to you."

Whew, I sure feel better now.

What's that you say, Mr Larimer? What was that? Oh, that maybe there is some validity to Mr Bacon's view; and maybe the line of law is crossed every once in a while - like 100 times a week!!!


Predictive Real Time Total Information Awareness


I found this in my Inbox this morning:

From: James

Subject: (and this was bolded) You are spreading rumor

Then the date and time and it was addressed to me - Web Link

There was an additional comment: "A picture taken immediately after the Boston marathon bombing and an unveiled claim of NSA skullduggery together rarely add up to the truth or the complete story."

Well, a couple of things come to mind right out of the gate (at least my mind):

I'll try to be gentle here, but looking at the subject line pissed me off. It pissed me off because first of all, it is not true. Add to that that it is typical Larimer; accuse rather than assess. I'm going to have to go take a shower now to get this ... nasty stuff off me.

On top of that, I have to wonder why it is that Mr Larimer sent this to me as opposed to posting it here, where it belongs.

The link will take you to a piece the author I linked yesterday (above) posted today.

For now, it might be best to just put it up (3rd hand now) and see what others might think. I have some thoughts on it, but I don't want to influence what others may think or feel about it.

I just find this type of "communication" odd. Why didn't Larimer post it himself? What was he thinking or attempting? Did he think that it was some sort of test, to see if I'd post it? Was he checking my moral fiber? Probably more important or compelling, to me anyway, was his opening salvo - attacking and accusational (I think I just made this word up/full disclosure and all).

By me posting a published piece, I am "spreading rumor?

Again I have to marvel at a guy that is very bright, very well educated, yet lacks basic social skills, as is evidenced by his 'blinders on' reading comprehension abilities. "Spreading rumors" ... as if.

Maybe (hopefully) next time Mr Larimer will do us all a favor and post to the piece instead of backdooring (apparently another new word) his innuendos and accusations. Maybe Mr Larimer doesn't get the concept of a blog, one that he was participating in, but stopped participating in directly.

Hard to figure.


George Muteff repeats a claim made by Michele Catalano that the NSA had come to her house to interview her husband as a suspected terrorist. The implication of this widely circulated claim is that this constitutes proof that NSA is snooping on innocent citizens.

It is soon revealed that it was not the NSA who questioned her husband and the cause that brought the local police to interview him was a fellow worker at a employment from which her husband had recently been fired.

The original claim is false; it is just a rumor and another example of how information on the Internet is often unvetted by even the least rigorous standard of responsible journalism. It is a false claim to stoke the flames of discord among the true believers who require no evidence to believe what they take as bedrock fact.

Distortion and rumors are a poor substitute for evidence and reason. The digital information age has made a great deal of information available, but vetting that information for evidence that it can be trusted is often missing. Separating fact from fiction is a sport that too many bloggers are entirely incapable of playing.

Whether it is man’s role in climate change, claims about the NSA, or claims about what motivates locally elected officials, ignorance, the disregard for evidence, and the lack of respect for scientific knowledge or any kind of expertise or knowledge has turned blogs like this one into an uncivil play ground for idiots.


It's pretty pathetic that an American whistle blower trying to alert the American people as to what is going on, on themselves, paid for by their own taxes...that that person has to rely on Russia for protection from incarceration from his own government. Our own Senator Feinstein, on the Senate Foreign Intelligence Committee is asleep with the rest of them.


Alright, since nobody has commented so far, I'll give it a go.

The piece I posted yesterday is here: "Google Pressure Cookers and Backpacks, Get a Visit from the Feds", Web Link

The piece Jim sent me, which I posted today (after receipt), is here: "The NSA Wasn't Spying on Couple Who Searched Internet for a Backpack and Pressure Cooker, But a Former Coworker Was", Web Link

I'm reposting the links to present a side-by-side look (as best I can).

You'll note the piece I posted and commented to yesterday is an actual news piece written by Philip Bump and published by the Atlantic Wire, a division of the Atlantic Monthly Group. Looks pretty official to me.

You may also note that the piece Mr Larimer sent me, which I posted today, is a ("Hit and Run") blog, written by Mike Riggs and published by reason.com, a division of Reason Foundation.

Now I'm not intimate with either, although I have seen pieces by the Atlantic Wire many times, including posted here on TA. I've never seen this reason.com before. Further, I'd offer that the two pieces have two distinctly different authors. I have seen no retraction from the Atlantic Wire.

So, which piece is accurate? Are either of them accurate? In the scope of this piece and this topic, does it matter? I can't answer the first two of those questions, but I can answer the third one; no, it doesn't matter. There is link after link after link throughout this thread and at least one other here on TA that describe in detail how we have been taken, surveilled, lied to by our own government officials. The matter is so big and so serious that just a few days ago Congress came within 7 votes of disbanding our intel community as we know it.

So, when Jim backdoors me with a "gotcha" link on a point, accusing me of "spreading rumors" for posting a legitimate article to this thread and commenting on it, I take exception.

Jim is correct when he states that just because something is on the internet doesn't mean it's true &/or correct. I believe most are aware of that, but I'd tend to believe a news piece from a respected source than a bolg.

In this case, the only thing that the Atlantic Wire piece brought that was "news" comes from this comment: "One more quote from Catalano: "They mentioned that they do this about 100 times a week. And that 99 of those visits turn out to be nothing. I don’t know what happens on the other 1% of visits and I’m not sure I want to know what my neighbors are up to.""

Now maybe Jim's blog is correct and maybe it isn't - and maybe the Atlantic Wire piece is correct and maybe it isn't; but to not recognize and admit that our government has gone waay over the line at the expense of our rights for years is just plain foolish or completely ignorant...or a combination of the two.

Perhaps when one gets spanked so hard so often one just jumps at any opportunity to get a "gotcha", even though it doesn't counter story after story linked above.

From Clapper lying to Congress (and us) to the previously unknown collection of all electronic communications of Americans in America, to one man, The Chief Justice of our US Supreme Court (appointed by Bush) picking all the FISC judges (all of which are republican appointees)) to the fact that we have a secret court and that only one side of all cases is heard, to Congressional hearings to Congress coming within a razor's edge of all but eliminating our intel community (which I don't agree with, btw) - none of it is enough for zealot believers.


The -trolltracker- here to put to rest the myth that this -George- wants to establish as fact. More truth from the -trolltracker-.

He wants everyone to believe that the Amash amendment "came within 7 votes of disbanding our intel community as we know it".

The truth.

The Amash amendment would have required the executive branch to specifically name the US citizen and the suspected illegal/terrorist activities that would warrant surveillance. The major premise of this -don bacon's- bulletproof argument.

Perhaps this -George- should read it (Amash amendment) himself before believing everything he reads in yahoo/google newsbites. More proof that Democrats don't want to give up on their big government philosophy despite the consequences to the rule of law.

Tootles!


Just as an fyi, here's the Amash-Conyers Amendment vote breakdown. Sorry if this was linked-to previously.

Web Link

I'm not always a fan of Larry Klayman, but agree with his assessment that most of our representatives are "Whores" (Web Link).

Mostly, I'm anxious to see how the local TA chorus, Honeybooboo and the Dogmatics, can make this a partisan issue while Pelosi, Issa, Bachman and Boehner were all in bed together on the side of continued, seemingly unfettered, domestic spying.


This -Coasters- should probably read the -trolltrackers'- post above on July 24 before he gets ahead of himself with his snarky and condenscending intellectualism. But then again, he wants everyone to believe that he is not a Democrat because he changed his voter registration.

Behavior like the Soviets of old, when it starts to become obvious that the true colors of an organization are showing, change its name.

The -trolltracker- has been walking the planet Earth a long time to be fooled by such nonsense.

Tootles!


correction to stated comment by me (above): "The matter is so big and so serious that just a few days ago Congress came within 7 votes of disbanding our intel community as we know it."

The vote was 205 (aye) - 217 (nay). That is a 12 point margin as opposed to the 7 point margin I stated.

So it should read: "The matter is so big and so serious that just a few days ago Congress came within 12 votes of disbanding our intel community as we know it."

For those that have an issue with the rest of the comment, please note the sentence end "...as we know it." I probably should have added the word 'now' for those so picky.

Here is the bill language for those interested: Web Link

Bottom line here, as I see it, is Congress is pissed and seems to want change and limitations on just what intel can and can't do. I am hopeful that much thought is given to the matter and that in the end, the appropriate language for the appropriate results is offered.

Again, I might suggest that the way Don attacks the issue is the best example of what I've seen so far to address the core issue(s). We'll see how it plays out.


Finally those same three words that Don has highlighted and focused on were uttered this morning on one of the many Sunday AM news/talk shows: Third Party Doctrine.

It was Rep Justin Amash (R-MI) that uttered those three mystical elusive words in a point/counterpoint with Michael Hayden, a former NSA and CIA leader.

The discussion was about whether Snowden is a whistleblower or traitor. I suppose you can figure out which guest fell on which side of that debate; but during the course of that debate, Amash clearly discussed the Third Party Doctrine and the need to make adjustments to protect us, the American people, and our privacy.

It's a start. At least no one can now say they don't know what the Third Party Doctrine is, or that they weren't aware of it.

Now, if Amash can laser the focus on those three little words, apply some common sense and get support in Congress, we may actually see some change - hopefully the correct change that will better balance our real needs for intel versus a much more reasonable protection of our rights.

It can be done: Don has demonstrated that fact above.


It's worrisome that Susan Rice, Obama's Benghazi shill liar, is head of the NSA now. Can we believe anything that comes out of her mouth? How much of these scare tactics now can be attributed to the military being forced to cut back some billions from their budget? Lindsay Graham on the talk shows says that "see all the trouble in Iraq now with them blowing up each other, we should still be there". Let them send their own children to participate in that senseless carnage.


"Lindsay Graham on the talk shows says that "see all the trouble in Iraq now with them blowing up each other, we should still be there". Let them send their own children to participate in that senseless carnage."

An age old plaint that has always and still does fall on deaf ears.

This says it as well as it can be said:

Web Link


I'm sure you are all following this story as it continues to develop. Reuters is reporting that NSA is feeding tips to domestic law enforcement agencies (possibly using some of the data we re talking about) but since it is clearly illegal for them to do so the domestic law enforcement agency then invents a story about how they came up with the data.

Web Link

If true this is a big deal.

--Darin


Interesting article today on a federal appeal's court use of the third party doctrine to justify warrantless cellphone tracking:

Web Link

the fat lady ain't even warming up yet on this one...


Darin brings us evidence of exactly what he describes as "a big deal". It is a very big deal.

Over the last several days I have seen other pieces published that match Darin's link. Here are a couple of them: "The NSA is giving your phone records to the DEA. And the DEA is covering it up." Web Link "NSA data was supposed to make the DEA’s job easier. Instead it makes prosecutors’ jobs harder." Web Link

This is disturbing on multiple levels. One issue would be; if the NSA is sharing our info that they collected on us with another government agency to do with what they will, then how can they reasonably expect us to believe that they aren't using it the same way for themselves? Another issue is the manner in which the DEA goes about getting, using, then lying about the events to make their case stick. If the DEA is doing that, I have no doubt that the NSA knows about it, and by not altering their supply, they are providing at least tacit approval. That being the case, then that is one more indication that they have no problems bending the law.

It makes me wonder who else the NSA is sharing their surveillance and intel of us in our country with.

And Clapper didn't understand the question...

Nice link Don. I hope you're right about the fat lady because I have no doubt that this is much worse than we know. It has got to stop.

I am anxious to see the continued debates and discussions on this and am very interested in how this all washes out.

Oh, what a tangled web we weave.


Reason.org is a libertarian organization, see Web Link. Don Bacon's arguments on this topic have been based upon this kind of right wing thinking.

Taken to an extreme which doesn't seem too far fetched given many of the comments on this blog, it would soon be illegal to look at people walking down the street because merely seeing them might violate their right to privacy. It was photos and videos taken during the Boston Marathon that helped discover the terrorists. All of those photos and videos fit the libertarian model of the third party doctrine.

Every new technology has risks and benefits and the information age is not an exception. A sensible response to change is sound regulation that preserves the good and shields us from the bad. The libertarian response is to disband government or regulate to the point of eliminating the technology. Neither solution works or makes any sense, but that is the response of those who fear change.


Jim, it was you, just five days ago, who sent George a link to a reason.com article to support an argument. Please, let's make some sense. You use a source, then discredit someone else for linking to the same website?

Jim writes: "Taken to an extreme which doesn't seem too far fetched given many of the comments on this blog, it would soon be illegal to look at people walking down the street because merely seeing them might violate their right to privacy."

Please read what I wrote above. Here it is again:

"As creepy as it may sound to some, I don't think recording everything possible in public spaces bothers most people that much. Bigger cities use public surveillance cameras widely; London is practically blanketed with them. Besides, curbing public photography/video is a slippery slope."

Jim writes: ...blogs like this one ... an uncivil play ground for idiots."

First, for the record, this is not a blog. It is an online discussion forum hosted by a newspaper. And it deserves respect. It's one of the very few that allows contributors to post threads on anything without pre-approval. Very progressive.

Second, calling Talkabout uncivil, and then describing its participants as idiots, is self-contradictory. You accuse the forum of being uncivil, then two words later refer to a group of people, some of whom you know personally, as idiots? I've learned a lot from the contributors here. They're not a bunch of idiots. And if they were it would be uncivil to describe them as such. Your disparagement is also hypocritical, as you have been one of Talkabout's least civil participants. In your heart, you know that.

Third, it must be asked, if this "blog" is such an "uncivil playground for idiots," why do you bother with us? Having written your Talkabout epitaph, why can't you now grace us with your absence? Because you know participants in this forum have shown a great deal of intelligence and tenacity, regularly besting you in argument. You can't convince, but you can't stay away. I believe you should give your betters the respect they've earned.


Here's another piece, a little more in depth, on what Darin brought to our attention: "Exclusive: IRS manual detailed DEA's use of hidden intel evidence", Web Link

It appears that inter-agency cooperation using our collected electronic data goes back further than previously thought, and is a well accepted practice. When reading this stuff, I have to stop and remind myself that our President isn't named Putin, then look around for evidence that I'm correct.

Here's the lead paragraph: "WASHINGTON (Reuters) - Details of a U.S. Drug Enforcement Administration program that feeds tips to federal agents and then instructs them to alter the investigative trail were published in a manual used by agents of the Internal Revenue Service for two years." The IRS? The IRS actually had this in their 'manual'?

3rd paragraph: "A 350-word entry in the Internal Revenue Manual instructed agents of the U.S. tax agency to omit any reference to tips supplied by the DEA's Special Operations Division, especially from affidavits, court proceedings or investigative files. The entry was published and posted online in 2005 and 2006, and was removed in early 2007. The IRS is among two dozen arms of the government working with the Special Operations Division, including the Federal Bureau of Investigation, the National Security Agency and the Central Intelligence Agency." So IRS agents are instructed to knowingly violate the Constitution to 'protect' members of other government agencies and their personnel? And this has been happening since when? - 2005-2006, that we now know about? "...two dozen arms of the government..."?

Holy Communism, Batman. You sure we're in the good old USA? We're in it deep.

More from the piece: "Monday's Reuters report cited internal government documents that show that law enforcement agents have been trained to conceal how such investigations truly begin - to "recreate" the investigative trail to effectively cover up the original source of the information."

"Defense attorneys and some former judges and prosecutors say that systematically hiding potential evidence from defendants violates the U.S. Constitution. According to documents and interviews, agents use a procedure they call "parallel construction" to recreate the investigative trail, stating in affidavits or in court, for example, that an investigation began with a traffic infraction rather than an SOD tip."

Does any government agency give a damn about our Constitution? Have any of them even heard about that document? Sure doesn't appear that way to me.


Our President had a press conference yesterday on this matter. Here is one of the stories on it from the US edition of the WSJ online: "Obama Proposes Surveillance-Policy Overhaul", Web Link

I watched his presentation and Q&A. My assessment? A very clear picture of denial, and although he says he understands, he doesn't. Further, some of the claims coming from his mouth (repeatedly) were false - blatantly false - at least according to all the confirmed data we've seen to date...a fair amount contained right here on this thread.

After watching his press conference, I went and took a shower. Most of it came off, but I think more scrubbing is in order.

And he wants us to trust him? Good Luck with that, Mr President.


That is what has become of our leaders. They feel no need to be truthful with us and don't care if we know it. President Obama is the current head guy in that regard. However, he is far from the first and far from the only one. We don't have to tolerate that. but we do. We could change it with our votes, but we won't.


On August 7 Jim Larimer wrote "Taken to an extreme which doesn't seem too far fetched given many of the comments on this blog, it would soon be illegal to look at people walking down the street because merely seeing them might violate their right to privacy. It was photos and videos taken during the Boston Marathon that helped discover the terrorists. All of those photos and videos fit the libertarian model of the third party doctrine."

Do you have a reference that Libertarians object to public photography? I don't know but I doubt that it's true.

It's well-settled law that taking photos in public is almost always legal and not an invasion of privacy. The only time it's not is if you do something invasive like using a telephoto lens to shoot a photo of someone inside their house, which doesn't count as public. Anything in public view from public spaces is generally legal to photograph / video record, although interestingly enough, not to audio record which is for some reason considered illegal wiretapping. And I suspect that virtually nobody has a problem with such public photography. But the argument here has precious little to do with that concept, rather the gathering and illegal sharing of non-public information. The fact that it was given to a third-party company that one is doing business with does not make it public information, regardless of the government's self-serving argument to the contrary.

By the way, arguing here about how the DEA illegally gets info from NSA and illegally uses it is like not liking the Titanic's deck color. It isn't the problem, the DEA's existance is the problem. There is only one appropriate solution to the DEA's abuses: disband the DEA and repeal our silly drug laws which date back only to the early 20th century. That would solve a long list of public problems, discussion of which rates starting a new TA thread. (For the record, I've never used drugs and never will so none of this affects me personally; I just don't like some people enforcing their version of morality on others, which is what anti-drug laws (among others) are really all about.)


"It's well-settled law that taking photos in public is almost always legal and not an invasion of privacy."

Everything you said is correct - but it isn't the whole story.

While it is not illegal to photograph people in public - it is illegal to use recognizable images of folk for commercial purposes. That would act to their detriment and it isn't permitted - there are remedies.

Using those images by government to the detriment of the spied upon is analogous.

I believe it is illegal under the First and Fourth ammendments to the Constitution, but that doesn't seem to mean anything anymore. Authorities (especially federal authorities - but it is spreading) feel no need to comply with the Constitution or the duly enacted laws. Correcting the problems with the third party doctrine will accomplish nothing if the law in general means nothing - and we are getting there.

-


Barnus, I agree with all points in your followup to my post.


>>it is illegal to use recognizable images of folk for commercial purposes.<<

If you are talking about people in crowds, on the street etc I do not believe you are legally required to get a model release. People walking in public places etc have no "expectation of privacy." And that's really the crux of the issue. When you are talking on your phone from your bedroom, or texting from your office, do you have a reasonable expectation that your call or text is private?

Google and the US government seem to think not!

--Darin


Then there is the question of how to characterize Mr. Snowden. Lots of choices: traitor, defector, whistleblower, hero, patriot. Here's a full-throated opinion piece this morning from politico.com that argues for the latter label:

Web Link


"If you are talking about people in crowds, on the street etc I do not believe you are legally required to get a model release."

That is probably correct.

The general rule is that photographing people in public places is legal and not actionable. There are exceptions. It is also the general rule that commercial use of recognizeable images of people is actionable. What is "Commercial Use" is sometimes arguable.

As for crowds - Technology may force us to update the rules. A face in a crowd - even a huge crowd may now be very recognizable. Take a look at this and be amazed as I was.

-

“Hiding in a crowd? No more. Wait till this loads and zoom in.

This picture was taken with a camera 70,000 x 30,000 pixels (2100 MegaPixels). It can identify a face in a multitude.

The cameras are not sold to the public and are being installed in strategic locations. (This one is in Canada)

Place the cursor in the multitude of people and left double click a

couple times. It will continue to show the people much closer, when you

double left click again or click more if needed. Amazing!!

There were thousands of persons and yet one can spot and recognize any face.

Imagine what this means... both police and Army have it.”

Web Link


>>both police and Army have it<<

Actually, you can have it, too. I do stitched images all the time. You can buy an automated head (probably what they used here) for a few hundred bucks. Does a great job. This particular image at your link is made up of 216 separate images stitched together later in a computer. Sort of magical but very affordable. Any camera will work, even point and shoots.

--Darin


News wonks are congratulating Obama for cancelling his one on one meeting with Putin at the upcoming multi nation summit. What better time to discuss this Snowden thing. It's a cold war type useless tactic.

Makes Obama look small.


I realize that this thread is a little long in the tooth, but I thought I'd add one more person's view on this matter, as his background is interesting and his opinions on this well laid out.

The gentleman's name is Jonathan Hafetz, and he is an Associate Professor of Law at Seton Hall Law School. Here's one bio: Web Link

Apparently, Mr Hafetz blogs regularly on the Huffington Post, and here is one example: Web Link

And here is a piece he wrote on this matter: "How NSA surveillance endangers the Fourth Amendment", Web Link

Just for the heck of it, I thought I'd also link up today's Huffington Post, if for no other reason than to remind us that the fish stinks from the head: Web Link , the good old Washington two-step, a dance that takes a broad swath on the dance floor.


Hafetz"s article nicely addresses the Fourth Amendment, but, to my mind, the threat to First Amendment rights is of equal or greater concern.

Hafetz notes: - - - “The impact of NSA surveillance is deep and far-reaching. Vacuuming up Americans’ communications undermines basic principles of privacy. It also chills the communications and discourse essential to a democratic society and fundamentally alters the citizenry’s relation with its government. - - - The NSA’s widespread, suspicionless surveillance of Americans’ private communications will not only impact the work of journalists, lawyers, and others who frequently communicate with people abroad. It will also affect the conduct of ordinary citizens, now fearful of visiting a controversial website or discussing a particular topic via email.”

It isn’t just about spying on us – it is about silencing us.


Here is Larry Ellison's recent comments on NSA activities: Web Link. This is unlikely to please the libertarian and conservatives on this blog.


Larry Ellison sells databases and data mining software. Oracle databases are among the best when it comes to huge data sets. The Government needs guys like Larry Ellison to sell them database tech.

Larry Ellison: Google is ABSOLUTELY EVIL, but NSA is ESSENTIAL -- Web Link

Ellison has made billions off of contracting with the government: -- Web Link

Larry is good at making money. Other than that, Larry is about a useful as anybody here when it comes to evaluating the NSA.

Larimer, don't be such a tool. Asking us to listen to Ellison's advice on protecting our privacy is like asking a Fox how to secure the coop.


I apologize in advance, but I just can't help myself.

@ Jim Larimer; this is for your (and like minded folks) consideration: "NSA: Listening to everyone - except oversight", Web Link

There are many lines I'd like to pull as points, but I think the closing sentence says it all: "Those who are capable of tyranny," he said, "are capable of perjury to sustain it."

This piece is a worthwhile read.


As most are aware, the spying on Americans by Americans (NSA, CIA, DEA & more) gets broader in specificity and breadth every time more information from Snowden is released.

Here's yet another piece describing the culture of our intel agencies:

"NSA repeatedly ignored court surveillance rules, documents show", Web Link

There are stories coming out on almost a daily basis just like this one, and I would suspect that they will continue as they have for some time to come; each more damning than the next.

It is very difficult for me to understand how any true American, anyone that has even a fundamental understanding of our Constitution and our rights contained within it, can argue ... actually blindly argue in support of what our government has been and is doing in violation of our guaranteed protections.

I suppose there are still some that can find a way to believe what comes out of Clapper's mouth. From this piece: “The documents released today are a testament to the government’s strong commitment to detecting, correcting, and reporting mistakes that occur in implementing technologically complex intelligence collection activities, and to continually improving its oversight and compliance processes,” said James Clapper, the director of national intelligence, in a statement Tuesday.

There, now Jim has a basis for his next salvo of government is always right and we just don't understand.


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