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(Politico)   2001 NSA memo to President Bush: The 4th Amendment hinders our spying and needs to be rethought. You know, because of all the foreigners protected by the 4th Amendment   (politico.com) divider line 45
    More: Followup, NSA, amendments, NSA memo, Foreign Intelligence Surveillance Court, memoranda, Fourth Amendment to the United States Constitution, signals intelligences, George W. Bush Administration  
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1602 clicks; posted to Politics » on 10 Jun 2013 at 9:54 AM (1 year ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2013-06-10 08:04:46 AM
Is there any real link here, or are we just associating whatever we can to PRISM now for fun?
 
2013-06-10 08:24:53 AM
"Since we can tap everyone's phone calls with computers, hey, why not?"
 
2013-06-10 08:33:30 AM
I didn't think the 4th amendment specified "citizens" subby, but simply the people. IANAL or a constitutional scholar, but doesn't that suggest that it applies to anyone, even dem furriners, under US Jurisdiction?

/someone correct me if I'm wrong; there may be case law showing it is only for citizens that I know nothing about
 
2013-06-10 08:40:41 AM

LasersHurt: Is there any real link here, or are we just associating whatever we can to PRISM now for fun?


NSA to GWB : "The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today," it wrote. "The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment."

GWB 10-26-01: "This new law that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. Investigations are often slowed by limit on the reach of federal search warrants."
 
vpb [TotalFark]
2013-06-10 08:48:02 AM

LasersHurt: Is there any real link here, or are we just associating whatever we can to PRISM now for fun?


There are a lot of activists who see this as an opportunity to push their cause.  Or maybe just reporters wanting to cash in on a big story.
 
vpb [TotalFark]
2013-06-10 09:07:55 AM
One thing that people forget (or simply don't know) is that the 4th amendment doesn't prohibit searches, it only prohibits unreasonable searches.  What is and isn't reasonable is decided by the courts, but until they don't decide until a case comes before them and in cases involving new technology there isn't going to be any case law to provide guidance.

So a memo about the necessity of deciding how to apply the 4th amendment to the internet isn't especially surprising.
 
2013-06-10 09:28:29 AM

mamoru: I didn't think the 4th amendment specified "citizens" subby, but simply the people. IANAL or a constitutional scholar, but doesn't that suggest that it applies to anyone, even dem furriners, under US Jurisdiction?

/someone correct me if I'm wrong; there may be case law showing it is only for citizens that I know nothing about


Actually, for the purposes of monitoring people for foreign intelligence purposes (not for use in, say a criminal trial), in order for a warrant to be needed to monitor that entity they need to be a "United States Person".  There is a very specific definition of a "United States Person", and here it is, straight from federal law on the subject:

(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

(j) "United States", when used in a geographic sense, means all areas under the territorial sovereignty of the United States and the Trust Territory of the Pacific Islands.


Note that only US citizens, or permanent legal resident aliens, or organizations with a substantial number of those two, are subject to the FISA warrant requirement.  So a person in the US on a student or tourist visa isn't covered, nor are 'agents of foreign powers' (ie., employees of foreign governments, spies, etc.).

Remember, this isn't for criminal investigation purposes:  A warrant would be required for the police to tap the phones of a foreign student, for example, but the NSA wouldn't need to apply for a FISA warrant to listen in because that foreign student (or tourist) isn't a "United States Person".  But the data derived from that almost certainly wouldn't end up being used in a criminal trial anyway.  The NSA doesn't like to talk to other government agencies unless it *HAS* to.  Even if it did, it's entirely likely that a court would determine that the information derived from those intercepts couldn't be used in a criminal trial, as it would be in violation of the Fourth Amendment.

Traditionally, this would make sense:  You want the ability to monitor the communications of embassy workers, intelligence agents, etc. who are located physically within the United States without having to get a warrant to do so all time, which risks both leaking the intelligence, and of clogging up the courts.  Indeed, I don't see how you could effectively monitor people like that (agents of foreign powers in the US) with traditional wiretapping warrants.

The problem is that now, it's much harder to determine that a particular pre-paid cell phone, or a particular gmail account, is actually used by a "United States Person".  When FISA was written, anonymous phones and e-mail just didn't exist.
 
2013-06-10 09:45:47 AM
What date in 2001?

That actually matters, in this case.
 
2013-06-10 09:53:40 AM
The 4th also doesn't say "unless they are foreigners, in which case there is no limitation on the government"
 
2013-06-10 09:56:17 AM
Stop waving the Constitution in my face! It's just a goddamn piece of paper!
 
2013-06-10 10:07:27 AM
You know, because of all the foreigners protected by the 4th Amendment

Foreigners only, eh?

static.guim.co.uk

see where the USA is shaded orange?
 
2013-06-10 10:10:19 AM
See?

We warned you guys about stuff like this, but you were too busy buying yellow ribbon magnets for your cars and Lee Greenwood tickets.
 
2013-06-10 10:13:22 AM

Aarontology: The 4th also doesn't say "unless they are foreigners, in which case there is no limitation on the government"


This.  Rights are universal but the NSA has a work around with Canada for this anyways.  You do me and I do you approach.
 
2013-06-10 10:15:04 AM

mamoru: I didn't think the 4th amendment specified "citizens" subby, but simply the people. IANAL or a constitutional scholar, but doesn't that suggest that it applies to anyone, even dem furriners, under US Jurisdiction?

/someone correct me if I'm wrong; there may be case law showing it is only for citizens that I know nothing about


You're not wrong.  If the Constitution only applied to citizens you could grab a tourist and send them through a woodchipper legally.  Inalienable human rights and all that.
 
2013-06-10 10:18:03 AM
Given the obstructionism in congress, Obama is quietly revealing "scandals" so the "outraged" Republicans will believe it's their idea to correct this.
 
2013-06-10 10:30:28 AM
Fourth amendment - totally outdated because there was no internet back then

Second amendment - completely applicable in today's world since we might get invaded by the British
 
2013-06-10 10:32:55 AM

Notabunny: LasersHurt: Is there any real link here, or are we just associating whatever we can to PRISM now for fun?

NSA to GWB : "The Fourth Amendment is as applicable to eSIGINT as it is to the SIGINT of yesterday and today," it wrote. "The Information Age will however cause us to rethink and reapply the procedures, policies and authorities born in an earlier electronic surveillance environment."

GWB 10-26-01: "This new law that I sign today will allow surveillance of all communications used by terrorists, including e-mails, the Internet, and cell phones. As of today, we'll be able to better meet the technological challenges posed by this proliferation of communications technology. Investigations are often slowed by limit on the reach of federal search warrants."


Damn you, Obama!
 
2013-06-10 10:34:49 AM

SlothB77: You know, because of all the foreigners protected by the 4th Amendment

Foreigners only, eh?

[static.guim.co.uk image 850x394]

see where the USA is shaded orange?


Because...you know...ALL enemies, foreign AND domestic.

/slippery slopes are slippery
 
2013-06-10 10:42:59 AM

LasersHurt: Is there any real link here, or are we just associating whatever we can to PRISM now for fun?


I think there's a lot of confusion over what exactly "PRISM" is. The media appears to believe it's a program that collects data from all social media sources on whoever the government wants. That may have been the initial idea, but that's not what I've read what PRISM is now. The government tried to develop a program that could compile information from different media sources (Twitter, Facebook, Google, etc) so an army of analysts wouldn't have to do it for a particular person. That ended up being named PRISM. IIRC it hasn't been totally successful since all the media companies store their data in different ways and formats, but that's it.
 
2013-06-10 10:43:54 AM

Bendal: LasersHurt: Is there any real link here, or are we just associating whatever we can to PRISM now for fun?

I think there's a lot of confusion over what exactly "PRISM" is. The media appears to believe it's a program that collects data from all social media sources on whoever the government wants. That may have been the initial idea, but that's not what I've read what PRISM is now. The government tried to develop a program that could compile information from different media sources (Twitter, Facebook, Google, etc) so an army of analysts wouldn't have to do it for a particular person. That ended up being named PRISM. IIRC it hasn't been totally successful since all the media companies store their data in different ways and formats, but that's it.


They declassified the info on PRISM. It requires asking for the info from the companies, and only targets foreign communications.
 
2013-06-10 10:49:36 AM
that there is some sort of outrage or people acting like they hadn't known all this is appalling. where were these "OMG NOT MY EMAIL" folks for the last 12 years. and yes long before that too.

in the last few years there have been repeated articles about cyber bullying and repeated use of "if it's on the internet ..." and yet people didn't connect that to any government use of the data? that picture the cops used of some "gangsta" to take him to trial and no one thought the government wasn't watching? WTF  people.
 
2013-06-10 10:50:39 AM

Curious: in the last few years there have been repeated articles about cyber bullying and repeated use of "if it's on the internet ..." and yet people didn't connect that to any government use of the data? that picture the cops used of some "gangsta" to take him to trial and no one thought the government wasn't watching? WTF people.


Facebook stalking potential suspects really isn't the same thing.
 
2013-06-10 10:56:37 AM

BitwiseShift: Given the obstructionism in congress, Obama is quietly revealing "scandals" so the "outraged" Republicans will believe it's their idea to correct this.


I think you got it!
 
2013-06-10 11:06:31 AM

icallhimgamblor: Fourth amendment - totally outdated because there was no internet back then

Second amendment - completely applicable in today's world since we might get invaded by the British, see above statement.

 
2013-06-10 11:16:34 AM

mamoru: I didn't think the 4th amendment specified "citizens" subby, but simply the people. IANAL or a constitutional scholar, but doesn't that suggest that it applies to anyone, even dem furriners, under US Jurisdiction?

/someone correct me if I'm wrong; there may be case law showing it is only for citizens that I know nothing about


The work around was always about calls made to or from other countries.
And if they get FISA warrants .... YAWNNNNNNNNNNNNN

At least their might be a SCOTUS challenge in the next 1-10 years, to finally sort this out.
 
2013-06-10 11:17:46 AM

vpb: One thing that people forget (or simply don't know) is that the 4th amendment doesn't prohibit searches, it only prohibits unreasonable searches.  What is and isn't reasonable is decided by the courts, but until they don't decide until a case comes before them and in cases involving new technology there isn't going to be any case law to provide guidance.

So a memo about the necessity of deciding how to apply the 4th amendment to the internet isn't especially surprising.


this
 
2013-06-10 11:34:29 AM

dittybopper: The problem is that now, it's much harder to determine that a particular pre-paid cell phone, or a particular gmail account, is actually used by a "United States Person".  When FISA was written, anonymous phones and e-mail just didn't exist.


We both know the following:
1. The "guilty until proven innocent" aspect of this approach is unconstitutional.
2.a. FISA as originally written covered these "new technologies" perfectly well.
   b. FISA as originally implemented covered these "new technologies" perfectly well.
3. This ridiculous, overreaching law is used in non-foreign intelligence contexts to get around "pesky" requirements of Amendment IV.
 
2013-06-10 11:47:04 AM

Callous: mamoru: I didn't think the 4th amendment specified "citizens" subby, but simply the people. IANAL or a constitutional scholar, but doesn't that suggest that it applies to anyone, even dem furriners, under US Jurisdiction?

/someone correct me if I'm wrong; there may be case law showing it is only for citizens that I know nothing about

You're not wrong.  If the Constitution only applied to citizens you could grab a tourist and send them through a woodchipper legally.  Inalienable human rights and all that.


Well color me shocked.  I assumed that people who hadn't yet taken their citizenship oath had no protection against quartering soldiers in their homes or being forced into slavery!

/then again, if the Constitution only applies to Americans, then being exempt from federal income tax and being allowed to have alcohol during the prohibition years would've been pretty sweet for non-citizens.
 
2013-06-10 11:56:41 AM

skullkrusher: Facebook stalking potential suspects really isn't the same thing.


specifically no. in general i'd say it was. if the NSA sweeps up your stuff from FB and then uses a computer to scan it for keywords it's just more efficient than having a person do it. and therefore can do more data. i have no real idea how good facial recognition software is but even if it produces false positives if the NSA is looking at FB and running it on "suspects" then they can make assumptions about groupings. even easier if Ahmed was tagged in his photo of his shinny new bomb vest.

the defense by LEO that once you upload it you have no expectation of privacy isn't much different than what is being claimed by the NSA. we can quibble about when and even if who needs what warrants but to say that we are safe in the security of our electronic lives is misguided at best.
 
2013-06-10 11:59:53 AM

Curious: skullkrusher: Facebook stalking potential suspects really isn't the same thing.

specifically no. in general i'd say it was. if the NSA sweeps up your stuff from FB and then uses a computer to scan it for keywords it's just more efficient than having a person do it. and therefore can do more data. i have no real idea how good facial recognition software is but even if it produces false positives if the NSA is looking at FB and running it on "suspects" then they can make assumptions about groupings. even easier if Ahmed was tagged in his photo of his shinny new bomb vest.

the defense by LEO that once you upload it you have no expectation of privacy isn't much different than what is being claimed by the NSA. we can quibble about when and even if who needs what warrants but to say that we are safe in the security of our electronic lives is misguided at best.


When you post something on your public profile on FB, you have no expectation of privacy. You are handing that information over. It is quite a bit different than who you call when. The former is at the very least a tacit acceptance that that information is going to be made public since that's the point. Logically it isn't any different than posting pictures of all the hookers you carved up on your front lawn.
 
2013-06-10 12:06:10 PM
Sometimes you have to entirely dismantle the spirit and soul of a country in order to save it.
 
2013-06-10 12:23:55 PM

Phil Moskowitz: Sometimes you have to entirely dismantle the spirit and soul of a country in order to save it.

 
2013-06-10 12:31:01 PM

THX 1138: Well color me shocked. I assumed that people who hadn't yet taken their citizenship oath had no protection against quartering soldiers in their homes or being forced into slavery!

/then again, if the Constitution only applies to Americans, then being exempt from federal income tax and being allowed to have alcohol during the prohibition years would've been pretty sweet for non-citizens.


The text makes the applicability universal: "The right of the people..."

I suppose you might infer that the specific "THE people" only refers to those that have a stake in government (cf. "of/by/for THE PEOPLE") - meaning citizens - but that, IMO, seems like a bit of a stretch. After all, the concept of foreign visitors was not unheard of to the Founders.
 
2013-06-10 12:38:24 PM

skullkrusher: It is quite a bit different than who you call when.


yeah maybe. all the cop shows have them catching the bad guy by where the bad guy pinged a cell tower. this info is maintained by the service providers and available by subpoena. now some providers have fought turning over masses of data but it's there and we all know that in some circumstances its obtainable.  now we are finding out the bar actually is pretty low.

look i don't like it and have written my congress people, the president (both current and former), supported EFF and others in this fight. i just can't understand the current outrage. THIS ISN'T NEWS FOLKS. every time the FISA or the patriot act have been renewed it's been all over the national news. i fail to see the "secret" part here.

what really tickles me is watching the talking heads at fox go ape shiat about this. they shilled for bush and the warrant less crap, supported amnesty for the telcos and now --- OMG OBAMA IS READING MY EMAIL.

again i don't like where we are. haven't liked it since freedom fries. but it's happened and we will be hard pressed to get it stopped. there isn't a single person in congress who wants to be labeled soft on terror. and there isn't a single election where a stand against this crap won't be labeled like that. is it fair? right? hell no but it is what happens. you saw it in the last dozen years or so.

i'll continue to speak out against it but i'll not lose any more sleep when it happens.
 
2013-06-10 12:48:06 PM

Curious: yeah maybe. all the cop shows have them catching the bad guy by where the bad guy pinged a cell tower. this info is maintained by the service providers and available by subpoena. now some providers have fought turning over masses of data but it's there and we all know that in some circumstances its obtainable. now we are finding out the bar actually is pretty low.


that's pretty much the crux of the matter. Good guys have a suspect they need to locate or disprove an alibi. They get a judge to grant them access to cell tower info. That's a shiatload different than dragging a huge net behind the boat, inspecting the catch and throwing back whatever doesn't strike you as suspicious. Except I don't think they actually throw the fish back. The fish stay in the boat
 
2013-06-10 01:00:56 PM
You know good men, like Russ Feingold, tried to warn us. Many of us believed at the time that these things were necessary. We were wrong. I know I have been saying for years this is bad. But folks let's keep worrying about law abiding gun owners and gays getting married. That is what matters not our privacy y and our freedom.
 
2013-06-10 01:05:36 PM

skullkrusher: The fish stay in the boat


if by fish you mean data and by boat you mean Utah, yeah. :)
 
2013-06-10 01:11:25 PM
As a liberal who hates this country and our troops, I have opposed the Bush-era policies since I have been able to vote.
 
2013-06-10 01:13:02 PM
but but Bush
 
2013-06-10 01:30:47 PM

badaboom: but but Bush


Y'know, there are a lot of people out there who's message is actually a lot less "It's ok because Bush did it" and a lot more "We farking tried to tell you that once that genie is out of the bottle, you'll never get it back in."

But don't let that stop you from putting the most simplistic words possible into people's mouths.
 
2013-06-10 01:37:29 PM
At this point it doesn't matter who started it. It only matters who continues it or doesn't stop it. Obama is in his second term. It is time for him to start taking responsibility for the actions that are going on under his leadership.

Just as if you applauded it under GWB you can't decry it now, the reverse is also true.
 
2013-06-10 02:27:21 PM
I'm sure someone has already swatted your nose about this, subby, but the rights set forth in the Constitutions, unless explicitly states otherwise (suffrage for example) apply to everyone residing in the United States, regardless, even if you're here illegally. SCOTUS made that ruling in 1886 back when the ethnic scapegoat du jour was Chinese
 
2013-06-10 03:05:01 PM

Jake Havechek: See?

We warned you guys about stuff like this, but you were too busy buying yellow ribbon magnets for your cars and Lee Greenwood tickets.


Yup. And just like crazy people with access to firearms, they need to come up with a solution. Because the rest of us are pretty much done with their BS.
 
2013-06-10 03:43:47 PM

Snapper Carr: I'm sure someone has already swatted your nose about this, subby, but the rights set forth in the Constitutions, unless explicitly states otherwise (suffrage for example) apply to everyone residing in the United States, regardless, even if you're here illegally. SCOTUS made that ruling in 1886 back when the ethnic scapegoat du jour was Chinese


That's true, and you can't use FISA intercepts against someone in a court of law except in very narrow circumstances.

But to follow your statement to its nonsensical limit, a foreign spy on US soil could operate a radio transmitter, sending secrets back to a foreign country, and under the Fourth Amendment we couldn't listen to them?  After all, they are in the US.  So we couldn't monitor them for intelligence purposes?  And we can't monitor the transmissions of foreign embassies in the US because of the Fourth Amendment?

It's a tricky thing.  There is a reason why the FISA statute exists, and it's a valid reason, even if it's being currently abused.  Fix the abuse of it, but don't throw the whole thing out.  That would be bad.
 
2013-06-10 04:18:42 PM
Yet another Obama scandal that libby libs are trying to blame on Bush
 
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