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View Diary: What If You Pulled Back the Curtain and Found a Real Wizard? (181 comments)

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  •  This is a good post in terms of information, (21+ / 0-)

    but I disagree with the idea that it is ok to have the unopened chest in the first place with repsect to purely domestic calls or emails.   Their may be a different argument about international communications betwen the US and other places.  I'm not sure.

    This opinion dealth with collection of boxes of info re the international communciations.  You explain the opinion well.  

    I think Congress should pass laws prohibitting mass collections of purely domestic communcations -- no treasure chests in the first place.  If there are to be treasure chests of international communications, and I'm not totally convicned, I would want more safeguards, although I don't knwo what they would be.  

    Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

    by TomP on Thu Aug 22, 2013 at 08:24:41 AM PDT

    •  Search #1 = fill the chest (17+ / 0-)

      Search #2 = open the chest

      #1 is still a search all the same, according to the 4th Amendment.

      4th Amendment = no bulk collection, period

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Thu Aug 22, 2013 at 08:32:42 AM PDT

      [ Parent ]

      •  That may be the key issue (7+ / 0-)

        for the court.  But even if it is found constitutional, I think it is bad policy.  

        Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

        by TomP on Thu Aug 22, 2013 at 08:33:35 AM PDT

        [ Parent ]

        •  If it's ok to put all this information in a chest (17+ / 0-)

          and hold it until there is sufficient cause to search the chest, how would this be any different than some agency recording video in your bedroom and promising to not look at it unless you are suspected of say 'statutory rape' or 'child abuse' or some other legitimate crime.  The chest of information is a very bad idea.

          •  Good point. I suppose it may depend on (8+ / 0-)

            what information is in the chest (metadata or content), but still I am not ccomfortable with chests of domestic information.  

            Content to me deserves the greatest protection.   There is a debate to be had re metadata, but there is at least an arguable interest in privacy regarding with whom one communicates.  A lessened interest, however, might give way in a balancing test.

            Chests of content of messages bother me.  I'm uncleear whether there is both, becasue what is the point of metadata unless one can zero in on the content sometime in the future when targets are identified.  

            Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

            by TomP on Thu Aug 22, 2013 at 10:25:26 AM PDT

            [ Parent ]

            •  Chests of meta are concerning to me also... (15+ / 0-)

              Just as an example:

              Say I were to obtain a job where a comprehensive background check were to be performed.  If they dug into the chest 15 years back, they might find that I frequented sites that dealt with Marijuana growing, or saw my emails that I had had an affair, or delved into my driving history and saw I stopped at Muggs Pub every day after work?
              (by-the-way these are just hypothetical examples and my real habits are probably worse ;) )

              I don't feel comfortable with what can happen to this information in the future.  

              •  But the government (6+ / 0-)

                would not have access to see that data unless you became a target based on the quaisi serach warrant procedures.   The government could not access the data for a routine employment consideration.  

                Right now, your internet provider has that data.  A company would not.  The internet providers have incentives to keep such data confidential.    

                I think you might prefer that all metadata and other data be destroyed by the inteent company within a certtain time after used for billing purposes.

                Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

                by TomP on Thu Aug 22, 2013 at 10:49:29 AM PDT

                [ Parent ]

                •  Yes... (10+ / 0-)

                  My internet provider has that information.
                  Additionally:
                  -Facebook has personal and contact information.
                  -Google knows where I browse and what information I search for.  
                  -My phone provider knows where I go and talk to and when.  
                  -My credit card company knows what I purchase and where. -Yahoo knows who I email and all my bill providers.

                  All of these things just in themselves is a lot of privacy I give up a little at a time.

                  -But put it all together (like the NSA can do) and you have my life, for however many years.  Very scary and very powerful to me.  

                •  But they could access the information if you (8+ / 0-)

                  became a journalist, for example, or a Democratic member of Congress, or even a candidate.  Seizure is as unconstitutional as search.  Secure in our persons means secure, not potentially secure depending on future events.

                  Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

                  by StrayCat on Thu Aug 22, 2013 at 03:19:59 PM PDT

                  [ Parent ]

                •  The issue for me is future changes (3+ / 0-)
                  Recommended by:
                  kharma, Tortmaster, 84thProblem

                  Just because thus is the United States does not mean we can't have a coup, or an authoritarian turn in which the government simply doesn't care about the law, or a Constitutional Convention that guts the protections of the 4th Amendment.

                  That data is there, and it seems they plan to keep it forever. When it comes time to "round up the usual suspects" in the event of changed or removed safeguards, the data is there.

                  Time to go after the GLBTQ community and its supporters? The data is there to find almost all of them.

                  Time to go after gun enthusiasts (which I personally am not, by the way)? The data is there.

                  What could be a crime (or political target) in the future -- this data would make it easy to find enough of your targets to interrogate and find the rest.

                  It may be something you did years before, but the NSA, in a sense, searched your house every day for years without you knowing and kept what they found.

                  "When will our consciences grow so tender that we will act to prevent human misery rather than avenge it?"--Eleanor Roosevelt

                  by KJC MD on Fri Aug 23, 2013 at 03:30:14 AM PDT

                  [ Parent ]

                  •  Part of the balancing of ... (0+ / 0-)

                    ... privacy protections that the Court considered in this case, KJC MD, was "retention." The US Person Information that contains content is immediately destroyed unless it involves an American directly contacting a surveillance target or the threat of immediate death.

                    The metadata they seem to be able to keep longer, but it involves the anonymous telephone numbers, when the calls were made, to whom, duration of calls.  

                    Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

                    by Tortmaster on Fri Aug 23, 2013 at 09:48:50 AM PDT

                    [ Parent ]

                    •  You can discover a lot through metadata (0+ / 0-)

                      Especially when you combine it with a reverse look-up directory.

                      "When will our consciences grow so tender that we will act to prevent human misery rather than avenge it?"--Eleanor Roosevelt

                      by KJC MD on Sat Aug 24, 2013 at 04:24:25 AM PDT

                      [ Parent ]

              •  You're HIRED! (3+ / 0-)
                Recommended by:
                Tortmaster, caul, kharma

                "Jersey_Boy" was taken.

                by New Jersey Boy on Thu Aug 22, 2013 at 08:20:23 PM PDT

                [ Parent ]

          •  I agree with TomP, ... (5+ / 0-)
            Recommended by:
            kharma, guyeda, congenitalefty, TomP, duhban

            ... that's a very good point, kharma. The difference has to be anonymous metadata versus content. That would be an excellent bill to write and pass through Congress.

            By the way, it's been years since I've had my mind blown quite as spectacularly as reading your comment this morning in the other diary, kharma. I'm talking awesome, kinda creepy, do a double-take, freaked-out karma, baby!  ; )  

            Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

            by Tortmaster on Thu Aug 22, 2013 at 10:43:17 AM PDT

            [ Parent ]

            •  There is no such thing as anonymous meta (8+ / 0-)

              data.  The meta data is about certain data.  That data is our internet traffic, notes, e-mails and banking data.

              Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

              by StrayCat on Thu Aug 22, 2013 at 03:22:01 PM PDT

              [ Parent ]

              •  I love the diarist's calming assertion (5+ / 0-)

                that the phone numbers one calls are "anonymous," as if the NSA has never heard of a reverse directory.

                Let the 28th Amendment be one to amend the amendment process itself. Then, perhaps, we can transform our Constitution into a living document. (Who CARES what the Founders thought of digital data gathering?)

                by WisePiper on Thu Aug 22, 2013 at 08:31:10 PM PDT

                [ Parent ]

                •  There are rules that ... (3+ / 0-)
                  Recommended by:
                  Larsstephens, WisePiper, kharma

                  ... prohibit doing that without getting a warrant. Those rules are even mentioned in the opinion. If an analyst wants to lose his or her job, go to jail and pay hefty fines, it can obviously happen, but it is not allowed. Moreover, there are audits to make sure that it doesn't happen. (I don't recall that being in the opinion, but I have posted regulations for similar programs that have that safeguard.)

                  Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

                  by Tortmaster on Thu Aug 22, 2013 at 08:58:40 PM PDT

                  [ Parent ]

                  •  I think one of the key issues is, and has (6+ / 0-)

                    been, the near certainty that at least a few of the hundreds of thousands of analysts and at least a few of the thousands of system admins, most privately employed under NSA contract, are both corruptible enough and capable enough to find and sell data that could be effectively used for blackmail and coercion of public officials. History is stark testament to the fact that someone will try anything for the right price, and, distressingly often, will get away with it (for at least as long as is necessary to do irreversible damage).

                    Let the 28th Amendment be one to amend the amendment process itself. Then, perhaps, we can transform our Constitution into a living document. (Who CARES what the Founders thought of digital data gathering?)

                    by WisePiper on Thu Aug 22, 2013 at 09:44:43 PM PDT

                    [ Parent ]

                  •  there are rules against torture (7+ / 0-)

                    I seem to recall something called Abu Ghraib

                    If the US Govt is willing to let the Army work
                    with the IC to rape or torture children,
                    do you think they are willing to let some desk jockey
                    snoop around at will or into the emails of
                    some PITA ournalist?

                    Rules are meaningless unless enforced.

                    Can you show me how many people are fired for
                    breaching the rules?

      •  Well, I believe you are wrong, ... (11+ / 0-)

        ... Simplify, as the Supreme Court in Smith v. Maryland, 442 U.S. 735 (1979) held that the Government could obtain bulk anonymous data under the Constitution. That's because you have no "reasonable expectation of privacy" in that information. Moreover, the Constitution does not apply to foreign communications between foreign persons, and that pertains to about 95% of the communications intercepted by the NSA.  

        Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

        by Tortmaster on Thu Aug 22, 2013 at 08:51:22 AM PDT

        [ Parent ]

        •  I disagree with its applicability (12+ / 0-)

          It's 5-3 decision from before the Internet. I also flatly disagree with the "no reasonable expectation of privacy" determination. Just because what a person does is shared with a service provider, that doesn't mean that person expects anyone and everyone to be able to find out about it.

          Even the NSA and the telecoms aren't so confident about it. Why else would Verizon have gotten an FBI-requested and NSA-implemented "warrant" from FISC for "business records," instead of just handing them over willy-nilly?

          How do you know it's 95% foreign? Even the NSA doesn't know how much is foreign. They use a >50% chance standard or an "assume foreign until proven otherwise" standard, depending on the circumstances. And even if collection is 5% domestic, that's not zero.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Thu Aug 22, 2013 at 09:10:44 AM PDT

          [ Parent ]

          •  It is an interesting legal issue. (6+ / 0-)

            Bulk "annonymous" data may be the key.   I doubt this supreme court would rule the NSA practice unconstitutional, but I hope a case reaches them.    

            Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

            by TomP on Thu Aug 22, 2013 at 09:13:57 AM PDT

            [ Parent ]

          •  Same rules, apply, Simplify. (11+ / 0-)

            The pen register in Smith v. Maryland only dealt with anonymous information like date of call, telephone number called, duration of call, you know, the stuff on your phone bill. That's the same information we're talking about nowadays--especially after this hearing in 2011--except it may also include anonymous IP addresses instead of phone numbers.

            The court made it pretty clear that no content was acceptable, even if that meant the Governemnt had to ignore a chest full of data that the Court acknowledged contained useful foreign intelligence.

            As for Verizon requesting a "warrant," that's standard business practice, i.e. "CYA." I have subpoenaed lots of telephone records in my time, and, by the way, those subpoeanas came right off my desk with a copied seal from the Circuit Clerk, perfectly legal mind you, and when the phone company demands it, which is what happens usually nowadays, I get the Court to order it. Moreover, I think the Government has a procedure to obtain that data, and it included a "warrant-like" process.  

            Finally, the 95% I cited related to foreign data, mostly of course, but also people in the US who have communicated with known foreign targets. In the opinion, the Judge cited about 5% of the bulk information was involved in the program at issue in this case. That was the stuff that may have had US content in it. That's what the Judge in this opinion is talking about when using terms like "minimization" and "targeting." The technology is supposed to weed out the US Person info. If it doesn't do a good enough job, the Government can't open the chest. So, since this opinion was written, that 5% is out of the way and no longer an issue, and only the US information that manages to sneak through the approved minimization and targeting processes is left.

            Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

            by Tortmaster on Thu Aug 22, 2013 at 09:31:16 AM PDT

            [ Parent ]

            •  The real privacy concern to me is content. (6+ / 0-)

              I understand there may be a privacy concern re metadata, but it is less than content, and, if the metadata is essentially annonymous until an actual search (based on some analogy of a search warrant or probable cause) that is even less of a concern.

              Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

              by TomP on Thu Aug 22, 2013 at 10:21:25 AM PDT

              [ Parent ]

              •  Domestic content needs a warrant requested by the (1+ / 0-)
                Recommended by:
                Tortmaster

                FBI. These are individual warrants. Nationwide the police get hundreds of thousands of these warrants every year, including the FBI. But the FBI terrorism warrant request number in the hundreds. NSA can get content for purely overseas content not involving Americans.

                Further, affiant sayeth not. 53959

                by Gary Norton on Fri Aug 23, 2013 at 07:28:47 AM PDT

                [ Parent ]

                •  Hey Gary Norton! (2+ / 0-)
                  Recommended by:
                  Gary Norton, Kevskos

                  In a similar vein, there were a spate of diaries in the last month or so dealing with the eleventy-billion-trillion requests for records made by all law enforcement to telephone and wireless companies each year, apparently to drum up the total surveillance state meme.

                  The thing is, those requests for telephone records occur for many litigation purposes, both criminal and civil. For example, whenever there's a 911 hangup, the police have an emergency exception to get the address of the cellphone user from the wireless company. How many times per day do the police need to respond to 911 hangups around the country? In New York City alone? Moreover, whenever there is a cellphone at the scene of any alleged major felony crime, and when is there not nowadays, then both the prosecution and defense will subpoena those records. I've subpoenaed so many I can't count!  

                  Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

                  by Tortmaster on Fri Aug 23, 2013 at 09:59:18 AM PDT

                  [ Parent ]

                  •  Yup. It is difficult to (1+ / 0-)
                    Recommended by:
                    Tortmaster

                    engage some people because there is little interest in their understanding the programs and how they fit in context. The NSA isn't even doing stuff that the police and private litigants do very day. The common response is that everyone is lying.

                    Also, folks watch TV shows where the authorities use techniques, many of which aren't really available today, and don't give them a second thought.

                    Further, affiant sayeth not. 53959

                    by Gary Norton on Fri Aug 23, 2013 at 10:10:12 AM PDT

                    [ Parent ]

            •  You are incorrect, if only for the fact that (4+ / 0-)
              Recommended by:
              StrayCat, WisePiper, Tortmaster, kharma

              metadata often includes content.  

              For example, the URL you access is metadata.

              Go and type a search into google.com.

              Now, go look at the address bar.

            •  how do we analyze (2+ / 0-)
              Recommended by:
              kharma, Tortmaster

              what is kept secret.?

              •  I think the first question is ... (0+ / 0-)

                ... what do we agree we should keep secret? I think foreign intelligence programs, for the most part, have got to remain secret. The second and third questions, then, it seems, are who should know and why? The protections of the three branches of Government providing oversight seems like the best ballgame in town to me. As I've written a number of times before, I voted for legislators and a President to handle the secret stuff and didn't vote for some low-level Department of Defense employee who may think, for any number of reasons that he's right and everyone else is wrong, to make those policy decisions. I would appreciate it, though, if that low-level employee used the whistleblower procedures in place if needed!

                 

                Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

                by Tortmaster on Fri Aug 23, 2013 at 10:09:06 AM PDT

                [ Parent ]

                •  when whistleblowing gets you indicted (3+ / 0-)
                  Recommended by:
                  Tortmaster, Kevskos, Simplify

                  ask Tom Drake, Tom Tamm and when
                  people who come to you pursuant to
                  5 USC 7211 or 10 USC 1034 or
                  the anti-gag rule in the defense appropriations act.

                  Seriously, when Nancy Roark gets her house searched,
                  because she's a senate staffer, can you really think that
                  we have a working oversight process to the
                  congress?

        •  And (6+ / 0-)
          Recommended by:
          Simplify, Tortmaster, kharma, JayBat, StrayCat, caul

          courts and judges are never wrong?  SC said slavery was fine at one point.

          "In short, I was a racketeer for Capitalism" Marine Corp Brigadier General Smedley D. Butler

          by Kevskos on Thu Aug 22, 2013 at 11:16:10 AM PDT

          [ Parent ]

        •  Yes, they decided that under a fundamental (4+ / 0-)
          Recommended by:
          Simplify, WisePiper, Tortmaster, kharma

          misreading of Katz v. U.S.  The thrust and intent of Katz was that people had a right to security against warrantless search and seizure when using a public telephone in a booth.  This decision has been turned on its head by the authoritarians.  When I put a (then) quarter into a public telephone, I am hiring that phone and its system as a personal effect, just as I would if using the telephone in my home.
             It is scary and sad that the Courts are using shibboleths and dogma to decide cases instead of analysis.  Jesus, what happened to looking at the facts of a case when deciding its meaning and scope?

          Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

          by StrayCat on Thu Aug 22, 2013 at 03:27:42 PM PDT

          [ Parent ]

        •  If NSA is taking custody of all internet and (4+ / 0-)
          Recommended by:
          WisePiper, Tortmaster, kharma, Kevskos

          phone traffic at ATT datacenters, then the data and information are not anonymous.

        •  Privacy (3+ / 0-)
          Recommended by:
          kharma, Tortmaster, Kevskos
          no "reasonable expectation of privacy"
          Really? No reasonable expectation of privacy when you make a phone call or send an email or surf the internet?
             I think that would be a very big surprise to 99% of Americans.

          None are so hopelessly enslaved, as those who falsely believe they are free. The truth has been kept from the depth of their minds by masters who rule them with lies. -Johann von Goethe

          by gjohnsit on Thu Aug 22, 2013 at 09:15:07 PM PDT

          [ Parent ]

          •  As to "content," there is a huge ... (0+ / 0-)

            ... expectation of privacy, and rightly so. But people get telephone bills. They must realize that they, the person they called and the telephone company all know the metadata about when the call was made, to whom, the duration and the telephone number. There's no reasonable expectation of privacy to that kind of information.

            Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

            by Tortmaster on Fri Aug 23, 2013 at 10:13:00 AM PDT

            [ Parent ]

            •  If you are comparing (4+ / 0-)
              Recommended by:
              Tortmaster, 84thProblem, Kevskos, Simplify

              the telephone company and a federal government spy agency and saying they are equal, then you are missing a very important point.

              None are so hopelessly enslaved, as those who falsely believe they are free. The truth has been kept from the depth of their minds by masters who rule them with lies. -Johann von Goethe

              by gjohnsit on Fri Aug 23, 2013 at 12:00:16 PM PDT

              [ Parent ]

              •  No, gjohnsit, I am ... (1+ / 0-)
                Recommended by:
                Mnemosyne

                ... using the average telephone bill as a concept to illustrate what might be in a typical NSA metadata search. The telephone bill is also used in my post above to show that there is no "reasonable expectation of privacy" in that data. At least three people or entities are aware of that information so, by definition, it isn't private for constitutional purposes.

                Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

                by Tortmaster on Fri Aug 23, 2013 at 01:03:36 PM PDT

                [ Parent ]

                •  Yes, you are (2+ / 0-)
                  Recommended by:
                  Kevskos, Simplify

                  if you can't see the difference between Ma Bell collecting phone billing information and the NSA collecting your metadata, then please tell when was the last time you have heard about Ma Bell throwing someone in jail.

                   Let me add another example to consider: would you have a problem with your employer and health insurance company also accessing those phone records?

                   You seem to be trying to tell me that everyone should have access to your telephone records because "there is no reasonable expectation of privacy", and that all the entities are equal, and I just don't think that anyone is ever going to agree with you - except for the current administration.

                  None are so hopelessly enslaved, as those who falsely believe they are free. The truth has been kept from the depth of their minds by masters who rule them with lies. -Johann von Goethe

                  by gjohnsit on Fri Aug 23, 2013 at 01:22:02 PM PDT

                  [ Parent ]

      •  As I understand it there are court opinions that (7+ / 0-)

        collection of metadata is not the same as a search. Those opinions may be contrary to the original spirit of the Bill of Rights but changing them would probably involve passing legislation.



        Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

        by Wee Mama on Thu Aug 22, 2013 at 09:16:34 AM PDT

        [ Parent ]

      •  I'd classify #1 as Seizure (9+ / 0-)

        rather than Search, given that it is untargeted mass collection of communications with some expectation of privacy protection under the 4th (emails especially). Analogous to the government seizing hardcopy of all the non-junk mail from every post office in the nation and putting it in labeled file folders in endless rows of filing cabinets in a vault under Ft. Knox, just in case it ever wants to go rifling through it someday.

        Not that it matters for analysis of whether or not #1 violates the 4th, since seizure is in there along with search per what requires probable cause and specific warrant. About the most obvious violation of both the spirit and letter of the law under the 4th Amendment I've ever encountered.

        •  Good point (7+ / 0-)

          So hopped up on "searches" that I kept reading right past that "and seizures" bit...

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Thu Aug 22, 2013 at 09:25:57 AM PDT

          [ Parent ]

        •  The hang up with calling ... (12+ / 0-)

          ... it a "seizure," Joieau, is that the Government is gaining the information from the internet and telephone companies, not you. (I'm talking about bulk metadata here, and not the content, which this Court basically said couldn't even be accidentally touched in anything approaching measurable quantities.) Additionally, the information is known to at least three parties, the communicator, the receiver of the communication and the telephone/internet carrier. For that reason, I don't think there's a "reasonable expectation of privacy."

          Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

          by Tortmaster on Thu Aug 22, 2013 at 09:47:19 AM PDT

          [ Parent ]

          •  You don't really believe (4+ / 0-)
            Recommended by:
            JVolvo, Simplify, Tortmaster, kharma

            that AT&T, Verizon, et al. actually record all our phone calls as part of the "metadata" they DO record for business and billing purposes, do you? I mean, I can see this with email because it's all part of the package and storage on the provider's server. But if our service providers were already recording all our calls and storing them for any length of time, the NSA wouldn't need those big data facilities. It could just get today's warrants from the FISA court and go electronically tiptoe'ing through the phone company's data storage facility.

            There used to be a whole body of state and federal laws governing telephone communications and the expectation of privacy. You couldn't just go snap a line-tap on somebody's phone line to listen in, it was a crime. If law enforcement, national security authorities or such wanted a tap, they'd have to present a legal warrant to the phone company and tap "administratively" through the company switch and router facilities.

            Were those laws ever stricken from the books just because cell phone technology is different from land lines, and easier to tap electronically? If so, I sure don't recall hearing about how and when we lost our rightful expectation of privacy for telephonic communications.

            Oh... there were also laws pertaining to mail and telegraph communications. We have lost much more than some people would like to think about. I'm old enough to miss rights of privacy that young people never knew existed, I guess.

          •  It doesn't matter who "owns" the (2+ / 0-)
            Recommended by:
            Tortmaster, kharma

            the metadata.  We have a contractual right to have that data protected.  The phone company's having breached their contractual duties does not somehow create this "reasonable expectation of privacy" monster. n If the reasonable expectation shibboleth is the law, then the fourth amendment is dissolved in any post pony express world.

            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

            by StrayCat on Thu Aug 22, 2013 at 03:54:51 PM PDT

            [ Parent ]

        •  How is this not also a seizure, and equally (2+ / 0-)
          Recommended by:
          Tortmaster, kharma

          unconstitutional?

          Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

          by StrayCat on Thu Aug 22, 2013 at 03:51:21 PM PDT

          [ Parent ]

      •  Isn't search #1 what the SCOTUS OK'd? (6+ / 0-)
        Are calls passing through wires inside or outside your home? Back in 1979, the U.S. Supreme Court clarified this issue and ruled that information about telephone calls — such as numbers dialed, or the length of phone calls — was distinct from the content of phone calls, and thus was not protected by the Fourth Amendment.
        http://www.nbcnews.com/...

        “Texas is a so-called red state, but you’ve got 10 million Democrats here in Texas. And …, there are a whole lot of people here in Texas who need us, and who need us to fight for them.” President Obama

        by Catte Nappe on Thu Aug 22, 2013 at 12:36:19 PM PDT

        [ Parent ]

    •  I think we have to have ... (10+ / 0-)

      ... chests of purely international communications, TomP, as we do live in a potentially violent world. It is when the international communications become comingled with domestic communications, ah, that's where we have issues. But, then, we also have courts to decide those issues. Technology will probably solve the riddle of Multi-Communications Transactions (that contain foreign communications, but might also have a small component of U.S. Person information comingled), and, who knows, technology might have already solved the problem.

      What I thought was most impressive about the opinion is that the whole system seems to be devised, not with gathering foreign intelligence in mind, but in protecting the rights of Americans. Even the terms used by the Court and the Government were privacy-related, including "minimization," "retention policy" and "targeting" as examples. (And what they meant by targeting was that the Government had to not miss the bullseye of foreign information and mistakenly strike U.S. Person Information.)    

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Thu Aug 22, 2013 at 08:44:23 AM PDT

      [ Parent ]

      •  Yes, this likely will happen if not already. (6+ / 0-)
        Technology will probably solve the riddle of Multi-Communications Transactions (that contain foreign communications, but might also have a small component of U.S. Person information comingled), and, who knows, technology might have already solved the problem.
        I would also like to see an adversarial aspect to the FISA court regarding domestic to international communications or practices.   That could be done by providing security clearances to a government agency with a mission to protect privacy interests.  

        If it were only the chests of such communications, I could probably live with it.   Chests of purely domestic communications seem a step too far, although as you point out, it may well be constitututional.  

        The Fourth Amendment has never been interpreted as some folks here seem to view it.  

        Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

        by TomP on Thu Aug 22, 2013 at 09:11:53 AM PDT

        [ Parent ]

        •  Part of the accommodations made by the (3+ / 0-)
          Recommended by:
          Tortmaster, kharma, TomP

          NSA in response to the ruling is to severely restricts access to chests that are likely to even contain purely domestic communications.  Prior to transfer to the NSA, an analyst needs to evaluate the contents of a chest likely to contain such communications to ensure that no purely domestic communications are contained within.  Upon finding a single instance of such a communication, the chest is to be destroyed.  Or at least that's how I interpreted it.  It's a bit too long to quote but you can find the info on p. 4 of the minimization procedures.

        •  Hmm, on reading further it may all (4+ / 0-)
          Recommended by:
          Tortmaster, kharma, TomP, StrayCat

          get transfered to the NSA first and then segregated into two pools:  one where access is restricted because it may contain purely domestic communications and a more general pool that the broader analyst community can access.  The chests in the restricted pool are evaluated prior to transfer into the general pool.

      •  Well, since it's a felony to have domestic (5+ / 0-)

        communications in the chest - is it not incumbent upon the government to ensure they don't put the wrong stuff in the wrong chest BEFORE they're allowed to act?

        Fiat justitia ruat caelum "Let justice be done though the heavens fall."

        by bobdevo on Thu Aug 22, 2013 at 12:30:51 PM PDT

        [ Parent ]

        •  And why have the domestic lockbox at (3+ / 0-)
          Recommended by:
          bobdevo, Tortmaster, kharma

          all?

          Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

          by StrayCat on Thu Aug 22, 2013 at 03:56:53 PM PDT

          [ Parent ]

          •  When they knew beforehand it was illegal.... (3+ / 0-)
            Recommended by:
            StrayCat, Tortmaster, kharma

            and since they have access to virtually unlimited amounts of OUR TAX DOLLARS - how about they follow the fucking rules THEY MADE.

            Fiat justitia ruat caelum "Let justice be done though the heavens fall."

            by bobdevo on Thu Aug 22, 2013 at 05:04:55 PM PDT

            [ Parent ]

          •  StrayCat, it wasn't a "domestic ... (2+ / 0-)
            Recommended by:
            kharma, WB Reeves

            ... lock box." It was supposed to be an international lock box, but the NSA realized that some "US Person Information" had been comingled because of the way it was obtained. This particular procedure in obtaining information grabbed what the Court called Multi-Communications Transactions (MCTs), and bundled up in a few of the MCTs was stray American data. Because of this stray US Person Information, which could include actual content, the Judge said that that lock box must stay closed, even though it did have foreign intelligence in it.

            Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

            by Tortmaster on Thu Aug 22, 2013 at 10:10:17 PM PDT

            [ Parent ]

    •  Here's the questions that I have, Tom. (20+ / 0-)

      And they aren't rhetorical, they are hard questions I can't answer.

      What about the terrorists cells operating in the US? I know many think there really is no terrorist threat here, or at least not one worth the forfeit of collecting meta data from here. But if there was another 9/11 here tomorrow, all talk of NSA reform would be over for a long time to come. Such an attack would again, likely strengthen the NSA.

      Secondly, most major companies in this country have more than meta data on us. We handed over our privacies to them without blinking. They literally follow us around on our computers with ads. They know enough about what I buy and read to target me in numerous ways.

      Now I realize that this isn't the Government. But what happens if the Koch brothers or the like, buys google? So we have a situation here where we want to deny the government any domestic meta data, while multi million dollar companies can have all they want? And in some cases, and/or potentially, companies owned by people who are trying to buy our elections?

      Seems to me, as many have noted, our technologies have outpaced the ability for our constitutional compass to keep up with them. And I think there's many hard questions to be asked of ourselves on this issue. To me it is just not as binary as it is to most here.  

      "A typical vice of American politics is the avoidance of saying anything real on real issues." Theodore Roosevelt.

      by StellaRay on Thu Aug 22, 2013 at 09:15:11 AM PDT

      [ Parent ]

      •  Those are real questions. (11+ / 0-)

        i do think there is a difference, however, between government collections to which the 4th Amendment applies, and for which there is at least a policy argument based on privacy even if it is constitutional, and provate companies.  There could be civil liability if such data was used outside the purposes of the company.    

        The security/privacy debate also is a real one.  I agree that another attack would have the affect of shutting down much of the debate.

        I agree that the issues are not as simple as some see them.  

        Separating out real debate and discussion, as has been in this thread and diary, from theoutrage and flame wars is useful.  

        in the real world, you can't hide rate those who disagree with you and you can't convince people after calling them names.

        Join us on the Black Kos front porch to review news and views written from a black pov—everyone is welcome.

        by TomP on Thu Aug 22, 2013 at 10:17:31 AM PDT

        [ Parent ]

        •  Absolutely (13+ / 0-)

          there's a difference between government collections and private companies, for the reasons you state. My question is are we comfortable with the 1% in this country having all the meta data? Is there an issue of balance between the two here?

          And yes, agree this thread has been refreshing. If you haven't read it yet, I highly recommend Akadjian's current rec list diary, one of the most excellent diaries I've read here, and so pertinent to everything that's been going on here for months.

          "A typical vice of American politics is the avoidance of saying anything real on real issues." Theodore Roosevelt.

          by StellaRay on Thu Aug 22, 2013 at 11:14:22 AM PDT

          [ Parent ]

          •  Agree wholeheartedly. He should be a front pager (7+ / 0-)
          •  No, we should not be comfortable at all. (3+ / 0-)
            Recommended by:
            StellaRay, Tortmaster, kharma

            The misuse of our information is endemic.  However, it will require Congress to provide for contractual and legal protection for us.  It could be done if most Congress persons weren't bought and paid for by the likes of Verizon and ComCast.

            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

            by StrayCat on Thu Aug 22, 2013 at 04:01:40 PM PDT

            [ Parent ]

            •  Exactly. (5+ / 0-)

              And that's my point too. While I think the NSA issues are deeply concerning, I also see that the collection of data is so omnipresent in our society that is overwhelming to me.

              Seems to me that what this country always supports is the profit motive, hence the lack of concern or anger as to the degree that companies track us. Because it is ASSUMED, it's just about selling product.

              But like I said, in these days of Citizens United when you increasingly have those who make a lot of profit using that money to influence politics, and perhaps that data too, then that's a concern.

              And to the extent that you see a balance between government and private business, how should the government compete?

              Which is NOT to say that it's OK for the government to abuse civil liberties, which are more strongly protected for us in the area of the 4th amendment where the government is concerned, than they are regarding our lives as consumers. It's just that those two things are more co-mingled than ever.

              "A typical vice of American politics is the avoidance of saying anything real on real issues." Theodore Roosevelt.

              by StellaRay on Thu Aug 22, 2013 at 04:48:10 PM PDT

              [ Parent ]

      •  "most major companies in this country... (3+ / 0-)
        Recommended by:
        StrayCat, Tortmaster, kharma

        have more than meta data on us."

        1.  They don't get that meta data+ by criminally surveilling us without a warrant, and

        2.  The criminal sanctions written into FISA apply only to those acting under color of government  authority.

        If a corporation WERE to surveill us without a warrant, it would be illegal, but it would not be a crime under FISA unless they were acting on government orders.

        Fiat justitia ruat caelum "Let justice be done though the heavens fall."

        by bobdevo on Thu Aug 22, 2013 at 12:35:34 PM PDT

        [ Parent ]

        •  Understood. (9+ / 0-)

          However, the word "surveilling" is not just about the government and legalese. I have never given any company the right to track my information on the net, except and only by buying something from them. We have all agreed to this without ever really agreeing to it, or at least the extent of it the way things have turned out.

          In a pissing match between companies and government as to who knows more about our private lives, it will be the companies that win. Handily. So my question remains---are we concerned about this lack of balance in a country where the 1% use their money to effect elections in every way they can?
          Should the government refrain from all meta data, while our private companies continue to perfect their "surveillance?"

          "A typical vice of American politics is the avoidance of saying anything real on real issues." Theodore Roosevelt.

          by StellaRay on Thu Aug 22, 2013 at 01:19:12 PM PDT

          [ Parent ]

          •  But, read your contract with your ISP, your (6+ / 0-)

            sellers and your credit card issuers.  They make the rules, and there is no bargaining about the terms of the contract.  Until Congress enacts some consumer protection, they can use your data for whatever of their own purposes they set out in the contract.  A real problem is the aggregation if the privately held metadata by credit reporting companies, the "partners" if the providers, all for sale to the corporate arm of the government.  The NSA.

            Patriotism may be the last refuge of scoundrels, but religion is assuredly the first.

            by StrayCat on Thu Aug 22, 2013 at 04:05:53 PM PDT

            [ Parent ]

            •  Yes. (2+ / 0-)
              Recommended by:
              StrayCat, Tortmaster

              I understand that big companies have tons of fine print on their sites, that almost no one reads and they know that, and that protects them from any legal action because you agreed when you checked the box you had to, to buy say, a book. And yes, if you want to buy that book or anything on their site, you're going to have to agree with their rules.

              AND the fact is most Americans pay absolutely no attention to any of this. On line shopping is more popular than ever, and only has one way to go. Up.

              Yes, it is a real problem when the corporations are the same as the government, in the sense that they chose to rubber stamp government requests, and partake in the money power exchange. This is actually the real definition of fascism, a term so misunderstood.

              But then too, it is a problem when corporations go beyond being a rubber stamp, and seek to influence votes with their data. Seek to undermine the existing government, which of course, some of them are doing now. This is really what the  wrongness of Citizens United is all about.  

              "A typical vice of American politics is the avoidance of saying anything real on real issues." Theodore Roosevelt.

              by StellaRay on Thu Aug 22, 2013 at 05:12:06 PM PDT

              [ Parent ]

              •  I think they are "adhesion ... (2+ / 0-)
                Recommended by:
                kharma, StellaRay

                ... contracts," StellaRay, and I would love to see the Consumer Financial Protection Bureau look into them, as I doubt that lawmakers will be, um, motivated enough to do anything about them, especially as long as we have a Republican House.

                And I see where you are going with the possibility of private companies (or maybe groups like ALEC) attempting to benefit from potentially illegal internet snooping. Laws'll have to keep up.

                 

                Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

                by Tortmaster on Thu Aug 22, 2013 at 10:17:37 PM PDT

                [ Parent ]

          •  I really don't CARE what the corporations know.... (3+ / 0-)
            Recommended by:
            Tortmaster, kharma, Justanothernyer

            they don't have the power to label me an enemy combatant, strip me of my rights of habeas, and ship my ass to Gitmo.

            And I don't support corps with my tax dollars.  My dealings with corporations are at arm's length, my government is made up of my PUBLIC SERVANTS  and I expect them to behave appropriately.

            Fiat justitia ruat caelum "Let justice be done though the heavens fall."

            by bobdevo on Thu Aug 22, 2013 at 05:03:32 PM PDT

            [ Parent ]

            •  Well... (3+ / 0-)
              Recommended by:
              duhban, ballerina X, Tortmaster

              first of all, you most certainly DO support corporations with your tax dollars, often when you have no choice, or are unaware you are doing so. Much in that later category. LOL, this country is set up to support private profit, and I assure you your tax dollars are going there.  I could offer you many examples of this, but I'll choose one.

              In my state, repeatedly, taxes have been added to certain products and places to help pay for this or that sports arena for a team that is owned by a corporation. In this case, unless you plan on not going to any city restaurants within the parameters of making a profit on a bigger and better sports team, and buying no products that have been targeted for this tax, then you ARE supporting a corporation with your taxes.

              Your dealings with corporations are never at the "arm's length" you think they are. In fact, I would suggest that corporations are influencing things much more than the government.

              So while it is true that corporations can't do the things you listed above, they CAN and DO influence others to.

              Finally, they are not YOUR public servants, they are everyone's public servants. Even those we disagree with. and there's the rub.

              "A typical vice of American politics is the avoidance of saying anything real on real issues." Theodore Roosevelt.

              by StellaRay on Thu Aug 22, 2013 at 05:27:37 PM PDT

              [ Parent ]

              •  " they are not YOUR public servants" (2+ / 0-)
                Recommended by:
                Tortmaster, kharma

                They are OUR public servants; and they have a mandate to serve OUR needs, not the needs of 1%.  OUR taxes pay their salaries, they answer to us.  It's not like there's any real debate about the basic necessities of the people who live here.  There's a relatively objective standard for them to live up to - and they're really NOT doing the job.

                Fiat justitia ruat caelum "Let justice be done though the heavens fall."

                by bobdevo on Thu Aug 22, 2013 at 06:24:21 PM PDT

                [ Parent ]

                •  Even under that 1%, (2+ / 0-)
                  Recommended by:
                  Tortmaster, WB Reeves

                  there is much disagreement about what "our needs" are. And I'm just not going to argue anything so obvious with you.

                  And then this:

                  it's not like there's any real debate about the basic necessities of the people who live here.
                  Not any real debate?! SIGH. All I can think is where have you been? There's a TON OF DEBATE about "the basic necessities" a democracy owes its citizens. Your idea that there's a "relatively objective standard for us to live up to" is not something I've experienced in this world, most of the time.

                  I find I often have to fight for what I believe in, in my political, marital, family, friend and business relationships. And that involves a lot more than just saying what I believe in, over and over again. It involves listening to others in my life, and finding common ground where we can.  

                  Look, we don't have to agree here and I don't think we're going to. We've both had our says, so maybe it's time to move on, at least for me.

                  Although, in no way do I mean to suggest that I should have the last word. I give that to you, and promise I will read it.

                  "A typical vice of American politics is the avoidance of saying anything real on real issues." Theodore Roosevelt.

                  by StellaRay on Thu Aug 22, 2013 at 07:05:03 PM PDT

                  [ Parent ]

    •  I stand with you in every word your write. (3+ / 0-)
      Recommended by:
      TomP, StrayCat, Tortmaster

      Experts who include former Security officials from the various alphabet agencies have explained that the collection has not merely been of transmission data but some factor  that also allows the data that is collected to be re-constituted.

      Then the actor Shia leBouef is totally justified when he told Jay Leno that the consultant on a film in Hollywood was able to re-play a  phone call the actor made several years earlier.

      One excellent place to find out about the security issues is bilingfrogspost.com

      Offer your heart some Joy every day of your life, and spread it along to others.

      by Truedelphi on Thu Aug 22, 2013 at 01:15:35 PM PDT

      [ Parent ]

    •  and you may very well be right (3+ / 0-)
      Recommended by:
      TomP, guyeda, Tortmaster

      that the unopened chest should not exist but that's simply your opinion and a grey area in our current law.  I'm not even sure what my opinion is.  I want a balance between protection from actual enemies and personal privacy but the latter I and every other American have given up in droves for ease of information.  

      Each time I analyze what I truly want it ends up boiling down to having a powerful and intelligent country but finding ways to keep that power in the hands of extremely responsible and compassionate individuals.  In other words, I want progressive liberals running the place.  And to complicate matters, the country is so askew in the Overton window, I can accept that to get to that center/left position we seek, we have to go through the middle and it could take decades.  

    •  What happens when that info is needed? (2+ / 0-)
      Recommended by:
      Tortmaster, guyeda

      Here is the problem, that I see with not collecting phone  metadata.  
      Let's say you don't have massive collections of domestic calls, after all, there are millions of calls A DAY, so you can't go through them in a meaningful way unless you are looking for a specific number or small set of numbers.  So rather than maintain a collection of phone metadata, when NSA (or FBI or CIA etc) recovers a number from a terrorist or similar bad guy, and then want to see who else has that person been calling, they get a warrant and then go to the phone companies with warrant in hand and get the info they want.  

      And that's fine, no chest, govt using warrants, everything's ok,

      Except by the time, the event (raid or way worse attack) happens and the phone number is retrieved and the warrant is granted, what if that info isn't there any more ?
      As I mentioned, there are millions of calls A DAY and there are big resources used to just store this data. Phone companies don't need it for much past the month or so that the calls are billed for. The companies certainly don't want to spend money on big servers for data they don't need, always adding more in case one day the NSA comes by and asking for one specific number.  Some save it for a year and some for three months. They aren't required to save it at all.
      So without a collection, the government is faced with not getting that information at all even if a judge gives them a warrant saying it's perfectly legal to get.  They could get half or none.  If you find a solution to the preservation of metadata, then you can get rid of the chest.  Until then, there going to be a chest.  For another analogy,No one actually wants the haystack, except that, that's where the needle is.

    •  the advisory opinion thing (1+ / 0-)
      Recommended by:
      Tortmaster

      good catch, so when di dthe courts ever start issuing these?

      •  I like to think, patbahn, that ... (0+ / 0-)

        ... the true "litigants" in this type of proceeding are Privacy vs. Foreign Intelligence, that the issue is ripe for adjudication, and that there is certainly a controversy between the two. This looks more like a really, really, really-to-the-power-of-10 involved arrest or search warrant ex parte hearing, though, so I would guess it doesn't have to meet the "case or controversy" requirement of the Constitution.

        The fact that they do what looks like Advisory Opinions is very pleasing to me. In the regular case, a court is trying to determine if "what happened" was legal or constitutional. In these matters, the Government apparently can't do a thing until it is found to be legal and constitutional. Nice safeguard. Moreover, I didn't mention it in the diary or the comments so far, but it appears that these programs have regular (maybe annual?) re-certifications, in which the Government has to re-certify that the programs are still legal and constitutional.  

        Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

        by Tortmaster on Fri Aug 23, 2013 at 10:22:21 AM PDT

        [ Parent ]

        •  why not (1+ / 0-)
          Recommended by:
          Tortmaster

          just let these FISA warrants be like an ex-parte warrant
          hearing,  but the warrant gets to be attached
          to any criminal case which derived information
          from a FISA warrant (Just like a regular wiretap order)
          or the warrants become discoverable in various
          privacy/FOIA lawsuits.

          what troubles me is the FISA opinions are now
          advisory, and they are classified by ODNI.
          By what right does the ODNI silence the court?

          •  We could go ... (0+ / 0-)

            ... back to the old way of doing things, but that has some major complications involved as well, patbahn. Off the top of my head, there is the fact that more people are then "in the loop," and they might spill the beans about national secrets. Also, in the old system, prosecutors would go to the federal judge most likely to sign the warrant, and that could become more of a rubber-stamp. I don't like how the FISC judges are appointed now, and think they should be appointed evenly by the Minority and Majority Senate Leaders, but the old system could be an even bigger concern. Finally, there is the complexity involved. How long would it take to get your average Federal Judge up to speed on these systems, the detailed safeguards, etc.? I don't know the answer to that question.

            As for the opinions being advisory, I think that's good news. I want the Court looking at the Government's actions before they happen. The other way is to have the Government do it's business and then have the Court decide if it was legal after the fact. As for the opinions being classified, I can see where some need to be redacted heavily, but maybe not entirely classified "Top Secret." The reason for redaction is to avoid spilling the beans to the enemy. If they know the complete parameters of the U.S. search capabilities, they'll shortly find a way to defeat them.

            Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

            by Tortmaster on Fri Aug 23, 2013 at 01:13:46 PM PDT

            [ Parent ]

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