> "No one objects to balancing security against liberty. No one objects to seeking warrants for targeted monitoring based on probable cause. We've always done this.
What we've always done is get warrants for searches. No warrants were required to monitor someone (say, to have a cop follow them around). That is still the case. The FISA warrants allow monitoring. An Article III warrant is still necessary for a real search. What's changes now is that people openly broadcast, in clear text, the kind of information that previously would've required a search pursuant to a warrant to find out.
I understand why Rand Paul, as a libertarian, has to pretend that we're deviating from historical practice, though. It's much easier to redefine the status quo them claim you just want to go back to it than to admit that we face an unprecedented situation (protecting the privacy of a populace that seems happy to broadcast their private information all over the internet) which might require novel solutions.
I think the central question here is whether a democracy can endure a constant state of war where every part of our lives is catalogued and cross-indexed by the government.
The rest of it is just a legal discussion around property rights and Rand Paul's strategy, both of which are not really germane. It doesn't work. It's not that it's illegal, it's not that Rand Paul has to take this position to glorify himself or whatever, it's simply that it doesn't work.
You can get away with "novel solutions" that won't work long-term for a while, but not indefinitely. Setting up this permanent monitoring infrastructure amounts to a cataclysm for our grandchildren. Quis custodiet ipsos custodes?
I think as long as Americans maintain a "zero tolerance" posture towards terrorism, this kind of security will always be justifiable, because the goal is zero events, versus accepting that some percentage "will happen."
Nuclear terrorism is example #1 of why "by any means necessary" is considered appropriate for surveillance. Since it's hard to argue this will "never" happen, well, it justifies a lot. Whether that is right or wrong, I still don't know.
> I think the central question here is whether a democracy can endure a constant state of war where every part of our lives is catalogued and cross-indexed by the government.
With regards to the latter point, I think it's both inevitable and not likely to be the downfall of democracy. There is no future scenario in which the government does not have the kind of insight into our lives that Google, Facebook, etc, have. Not necessarily because the government will ignore any laws and collect that data anyway, but because people desensitized to privacy issues by a computer at Google scanning their e-mail just aren't going to care about a computer at the NSA doing the same.
That's largely irrelevant to my point. The average person doesn't think google is going to use their information against them, which is why they allow google to engage in such invasive tracking (also, they don't realize how much google tracks). At the same time, the average person doesn't share HN's reflexive distrust of the government. Desensitized to privacy issues by google, etc's, tracking, it doesn't cause them any consternation that the government has access to that information too. They don't perceive either entity as a threat.
People don't "broadcast" their information. They send it using point-to-point protocols to companies or people. The government is using special, secret authority to compel intermediaries or stewards of the information to turn it over en masse.
If the government was just browsing Facebook or doing Google searches, nobody would complain. But they are using government powers to get the information, which means that it is a search.
Precisely. Can rayiner obtain my call metadata? They cannot. I did not broadcast this information, the NSA obtained it by using state powers to secure a secret, unrestricted (in the most literal sense) warrant.
> Can rayiner obtain my call metadata? They cannot.
That's what we suppose, anyway.
Of course, we don't know whether or not rayiner has acquaintances who work for your carrier who have access to it, or perhaps law enforcement who have access to a portal that the carrier voluntarily provides.
And we don't know if the carrier has freely entered into any private agreements to sell call data to others... which they might be free to do even in the face of aggressive bans on law enforcement or national security organizations ever even breathing at carriers.
The 4th amendment protects your personal information, not just information that isn't public. That's a big difference. I might not be able to obtain your call metadata, but hundreds of people at Verizon have access to it. Indeed, its not even you data. They generated it.
Do you ever think the framers contemplated you being able to invoke the 4th to protect other people's letters about you?
A thought experiment: the Founding Fathers specified that individuals' "papers" must be safe from casual government search. They did not say that by handing a sealed letter to a postman, I'm implicitly making it public. If someone had invented a machine to see through envelopes and read letters, they would not have approved of its warrant-less use.
Why should email or phone calls be different? Technically, the communication leaves my control. Technically, there are ways to snoop on it. But the law concerns itself not with what is possible, but what is permissible. A machine that could see through envelopes wouldn't make letters a "broadcast" medium; only the intention of the sender to make something public could do that.
Snooping on phone calls and emails without a warrant specifying which people's communications should be investigated and why is an obvious Fourth Amendment violation.
Something not being private doesn't mean its has to be public. It just means it has to be disclosed beyond your sphere of personal privacy.
Actually, the 4th doesn't protect sealed letters you hand to just anyone, only USPS carriers. And not what's written on the outside (metadata). Also, in this hypothetical you didn't write the "paper" in question. A CDR isn't your data. Its verizon's data about you.
So take away the special status of the USPS, and add in the fact that its verizon's tracking data for you, and its more like the government hitting up your local steamboat company for a list of all the shipments you sent through them. And I think that would not have required a warrant in 1810.
I think you have a good point when it comes to metadata. But I'm not at all convinced that's all they're monitoring.
Snowden is quoted as saying:
>> “I, sitting at my desk, had the authority to wiretap anyone, from you or your accountant to a federal judge to even the president if I had a personal e-mail,” he added.
You have this mistaken idea that google is a "steward" of your information. They're just someone who has your information (I.e. Your level of trust of them has no basis in any actual obligations they have with respect to your information--see facebooks ever shifting privacy policies for proof that they have no particular obligations).
Its not a "search" of you to get information google keeps about you using government powers. It just isn't. The framers did not contemplate that people would freely hand over private information to third parties who have no legal obligations to protect it.
"You have this mistaken idea that google is a "steward" of your information."
They are -- you can question whether they are a good steward or not, but that is irrelevant as far as I can tell. The government didn't give them the option of keeping their users' information private.
"Its not a "search" of you to get information google keeps about you using government powers."
You assert that, but I don't see why. Clearly they were trying to find something in all of that data -- if trying to find something is not a search, what is?
"The framers did not contemplate that people would freely hand over private information to third parties who have no legal obligations to protect it."
It doesn't matter whether they have a legal obligation to protect it or not. They weren't given an option to protect it. If I write you a letter about a new political party platform, you have no legal obligation to keep that a secret. But do you think it's reasonable for the government to come in and demand all of the letters you've ever received, and then browse through them to see if someone might be starting a radical political movement?
What we've always done is get warrants for searches. No warrants were required to monitor someone (say, to have a cop follow them around). That is still the case. The FISA warrants allow monitoring. An Article III warrant is still necessary for a real search. What's changes now is that people openly broadcast, in clear text, the kind of information that previously would've required a search pursuant to a warrant to find out.
I understand why Rand Paul, as a libertarian, has to pretend that we're deviating from historical practice, though. It's much easier to redefine the status quo them claim you just want to go back to it than to admit that we face an unprecedented situation (protecting the privacy of a populace that seems happy to broadcast their private information all over the internet) which might require novel solutions.