Al Gore Says NSA Surveillance Is Unconstitutional And 'Not The American Way'

from the indeed dept

Mon, Jun 17th 2013 2:03pm — Mike Masnick

Add Al Gore's voice to those who are speaking out against the NSA's dragnet surveillance practices. The former Vice President not only said the practice was un-American, but also unconstitutional in violation of the 4th Amendment.

"This in my view violates the constitution. The fourth amendment and the first amendment – and the fourth amendment language is crystal clear," he said. "It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the constitution and then classify as top secret what the actual law is."

Gore added: "This is not right."

I keep seeing people trying to defend the program due to a single Supreme Court ruling -- Smith v. Maryland -- a 1979 case that gave rise to the "third party doctrine," which argued that if you give data to a third party, you no longer have any expectation of privacy in that data. Of course, the situation specific to that case was exceptionally different and took place in a very different world. By any plain meaning of the phrase "expectation of privacy" people certainly do not think that they're giving up their expectation of privacy just because they use an online service.

What's amazing is that the 4th Amendment is not that complicated, and certainly does not put up some giant barrier for law enforcement. All they have to do is show probable cause and get a warrant. All of this freaking out is showing that they know that they can't show probable cause to get all this data. And that should ring lots and lots of alarm bells. Thankfully, some principled politicians are seeing this and understanding the massive problems with a surveillance state.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: al gore, nsa, nsa surveillance, unconstitutional

44 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 17 Jun 2013 @ 2:11pm

A quick question, how is your telco or ISP a third party, you have a direct contract with them?
[ link to this | view in chronology ]
- TaCktiX, 17 Jun 2013 @ 2:18pm
  
  Re:
  The entity is the third party because the government is the second party. While as a second party the government cannot trespass your right to privacy, according to that ruling since you voluntarily handed information to the third party, the government can walk up to them and ask for it, no problem.
  
  Mind, that's based purely on the ruling, I don't agree with such a doctrine at all.
  [ link to this | view in chronology ]
Anonymous Coward, 17 Jun 2013 @ 2:16pm

All this negative energy, look at the bright side if anybody needs to talk to the president they can just leave a draft on their email account, so he can read it.

The US government is the first in the world to give its people the ability to directly contact the White House how great is that?
[ link to this | view in chronology ]
- Anonymous, 17 Jun 2013 @ 3:38pm
  
  Re:
  And the reason for any other government to give its people the ability to directly contact the White House would be...?
  [ link to this | view in chronology ]
  - Anonymous Coward, 17 Jun 2013 @ 3:50pm
    
    Re: Re:
    To complain?
    [ link to this | view in chronology ]
- Anonymous Coward, 17 Jun 2013 @ 10:16pm
  
  Re:
  Actually, citizens (and visitors) can walk into the office of the President of Iceland to have a chat pretty much whenever they like. It's a country with comparatively few citizens and everybody seems to either be related to or know everybody else.
  [ link to this | view in chronology ]
  - Niall (profile), 18 Jun 2013 @ 5:58am
    
    Re: Re:
    I was looking to make a Kentucky/Alabama/Tennessee joke here, but couldn't think of anything that wasn't unfair to the Icelanders.
    [ link to this | view in chronology ]
Anonymous Coward, 17 Jun 2013 @ 2:19pm

Sadly, it is unlikely that most of those objecting are "principled politicians." Rather, they recognize where the winds are blowing and will complain just loudly enough to appear to be on the side of "the people," while failing to bring about actual change.

We need to make sure that we "the people" make it clear to politicians that we aren't satisfied with the mere appearance of change.
[ link to this | view in chronology ]
- The Real Michael, 18 Jun 2013 @ 5:38am
  
  Re:
  Anyone remember how during Obama's campaigning he said that he was against the Patroit Act, would pull us out of war and that there would be transparency in government? How well did that work out?
  [ link to this | view in chronology ]
  - Niall (profile), 18 Jun 2013 @ 5:56am
    
    Re: Re:
    About as well as the idiot that got us into illegal and useless foreign wars, brought in the Patriot Act because his intelligence services couldn't see what was under their noses, and for an encore destroyed the
    
    Obama may be a stinking disappointment. But he is still better than the alternatives. One of whom was probably even less a 'natural born citizen' than Obama.
    [ link to this | view in chronology ]
Lord Binky, 17 Jun 2013 @ 2:22pm

Oh come on....it is NOT that difficult
THE TRUTH

Whether something is legal or illegal does not inherently mean it is morally right or wrong.

If you need it stated in two simpler sentences:

Wrong actions can be legal.
Right actions can be illegal.
[ link to this | view in chronology ]
Anonymous Coward, 17 Jun 2013 @ 2:23pm

Why after 7 years all those people come out saying they are shocked, they knew it was happening, suddenly that knowledge is Al Gone?
[ link to this | view in chronology ]
Anonymous Coward, 17 Jun 2013 @ 2:29pm

NEW Pew Research Poll
New Pew Research / USA Today poll released today.

�Poll: Snowden should be prosecuted for NSA leaks�, by Susan Page, USA Today, June 17, 2013

� There is an almost even split on the most fundamental question. By 48%-47%, Americans divide over whether they approve or disapprove of the programs as part of the effort to fight terrorism. By another narrow margin, 49%-44%, they say the release of classified information serves rather than harms the public interest.�

�Public Split over Impact of NSA Leak, But Most Want Snowden Prosecuted�, Pew Research Center for People and the Press, June 17, 2013

The analysis in this report is based on telephone interviews conducted June 12-16, 2013 among a national sample of 1,512 adults, 18 years of age or older, living in all 50 U.S. states and the District of Columbia�
[ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

out_of_the_blue, 17 Jun 2013 @ 2:31pm

You mean "third party" like... wait for it... GOOGLE?
As I've mentioned here before -- drowned in the yapping of fanboy ankle-biters -- Google and other corporations provide a way around the 4th amendment.

But my only point here is that, as always, Mike avoids implicating Google.
[ link to this | view in chronology ]
- Chuck Norris' Enemy (deceased) (profile), 17 Jun 2013 @ 2:52pm
  
  Re: You mean "third party" like... wait for it... GOOGLE?
  While true...Google didn't grow as a business with the evil intent to destroy the people's right to privacy. The government, on the other hand, has bent the law to take advantage of what successful companies have garnered, consumer trust. Now the laws will be further (and secretly) bent to make sure those corporations that "play nice" won't get the Feds sniffing around their accounting practices and other activities.
  [ link to this | view in chronology ]
- Anonymous Coward, 17 Jun 2013 @ 3:42pm
  
  Re: You mean "third party" like... wait for it... GOOGLE?
  Mr Gates? Is that you? Bing will never replace Google, Mr Gates. Get over it.
  [ link to this | view in chronology ]
  - Loki, 18 Jun 2013 @ 11:03am
    
    Re: Re: You mean "third party" like... wait for it... GOOGLE?
    Actually, I think it'd be much more likely to be Ballmer than Gates.
    [ link to this | view in chronology ]
- Rapnel (profile), 17 Jun 2013 @ 6:19pm
  
  Re: You mean "third party" like... wait for it... GOOGLE?
  For Christ's sake you fucking cunt. It's not about being a fan boy, tosser. It's about a belief in the fundamental design that this country was created under. It wasn't to make .01% of the population filthy fucking rich because.. free market. It was about the right to inherit the liberties that life bestows upon us.
  
  Greed has created terrorism. And the very policies that churned wealth for the few pillaged the few in other lands and we have reaped what was brought forth from that seed.
  
  And now with have the very real and concrete beginnings of a state that cares oh so much about the precious homeland and yet domestic policy tilts with all of it's might towards corporate sustenance and channeled profit to further the very policies of wealth to the top above all else and wars that fatten the industries of war, pillaging 99% of the gains, indeed, securing their very own... freedom.
  
  And you, fucking cunt that you are - Fuck Google. Google is not the fucking problem.
  
  American foreign policy has been corrupt for years, decades. American domestic policy is poised for terror, indeed, terror realized.
  [ link to this | view in chronology ]
- Anonymous Coward, 17 Jun 2013 @ 8:36pm
  
  Re: You mean "third party" like... wait for it... GOOGLE?
  Hi Cathy, try using Bing if you hate Google so much.
  
  Also , you are a dumbfuck who should stay on your own site.
  
  Or better yet, why don't you open up the comments so that we can polute your comments like you do to Mikes.
  
  What, too chicken shit to have dissenting opinions on your site.
  [ link to this | view in chronology ]
  - Pragmatic, 18 Jun 2013 @ 5:36am
    
    Re: Re: You mean "third party" like... wait for it... GOOGLE?
    Uh,Bing copied Google's algorithms so it's pretty much Google Lite.
    
    Use Duck Duck Go.
    [ link to this | view in chronology ]
Anonymous Coward, 17 Jun 2013 @ 2:37pm

Is Democratic Criticism on N.S.A. Hurting Obama�s Approval Rating?
With Al Gore calling the surveillances �unconstitutional� and �not the American� way, Nate Silver poses an interesting question:

�Is Democratic Criticism on N.S.A. Hurting Obama�s Approval Rating?, by Nate Silver, New York Times: FiveThirtyEight�, June 17, 2013

A series of recent polls show President Obama�s approval rating at about 46 percent on average. This is somewhat lower than it was in late May, when it averaged 48 percent or 49 percent.

Has the shift been caused by the dominant news story of the last two weeks � the disclosures about the National Security Agency�s domestic surveillance programs? That�s tough to say�
[ link to this | view in chronology ]
- Anonymous Coward, 17 Jun 2013 @ 6:22pm
  
  Re: Is Democratic Criticism on N.S.A. Hurting Obama�s Approval Rating?
  I believe he thinks arming the Syrian rebels will detract from all the NSA attention. Unfortunately he's probably right.
  [ link to this | view in chronology ]
  - Anonymous, 18 Jun 2013 @ 4:07am
    
    Re: Re: Is Democratic Criticism on N.S.A. Hurting Obama�s Approval Rating?
    Take guns away from the American people, give guns to the Syrians.
    I can see a Fast And Furious sequel in the works.
    [ link to this | view in chronology ]
    - Niall (profile), 18 Jun 2013 @ 6:00am
      
      Re: Re: Re: Is Democratic Criticism on N.S.A. Hurting Obama�s Approval Rating?
      Because Syria borders the US?
      
      Typical American attempt at geography!
      [ link to this | view in chronology ]
  - Niall (profile), 18 Jun 2013 @ 6:03am
    
    Re: Re: Is Democratic Criticism on N.S.A. Hurting Obama�s Approval Rating?
    Only because the chickenhawks are only for war if it's one of their own starting it, and preferably it involves getting oil or beating commies. The moment a Democrat wants to up the ante for humanitarian purposes, no dice!
    [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 17 Jun 2013 @ 3:05pm

I keep seeing people trying to defend the program due to a single Supreme Court ruling -- Smith v. Maryland -- a 1979 case that gave rise to the "third party doctrine," which argued that if you give data to a third party, you no longer have any expectation of privacy in that data. Of course, the situation specific to that case was exceptionally different and took place in a very different world. By any plain meaning of the phrase "expectation of privacy" people certainly do not think that they're giving up their expectation of privacy just because they use an online service.

You "keep seeing" it because it's directly on point and controls the analysis. It's why Orin Kerr says stuff like this: "I�m not aware of anything in FISA that requires that standard. Nor is there anything in the Fourth Amendment that would seem to require it, as the call records are unprotected under Smith v. Maryland." Source: http://www.volokh.com/2013/06/07/why-does-a-terry-standard-apply-to-querying-the-nsa-call-records-da tabase/ You'll continue to "keep seeing" it because it's the actual law.

I'm having trouble understanding how you think you have a Fourth Amendment-protected expectation of privacy over your use of an online service. You know that when you type in a domain name into your browser that third-parties are going to have to look at that information. I get that such information could/should/is/might be protected by statute or contract, but I'm having trouble seeing your constitutional argument. The same exact reasoning in Smith v. Maryland, namely, that you can't have a reasonable expectation of privacy in the numbers you willingly hand over to your phone company, applies in the modern context of your ISP.

How is it special and different because it's on a computer, Mike? Saying it "took place in a very different world" is just fluff. What's so different about handing a phone number to my phone company and handing an IP address to my ISP?
[ link to this | view in chronology ]
- John Fenderson (profile), 17 Jun 2013 @ 3:13pm
  
  Re:
  I think the point is that the "third party doctrine" is ill-conceived bullshit. Much like the "reasonable expectation of privacy" standard is. What started as something that had a core of reasonableness to it has been twisted and expanded into something that is resulting in the government being able to do things that are expressly and plainly forbidden by the constitution.
  
  Whether or not it's technically legal is irrelevant.
  [ link to this | view in chronology ]
  - Anonymous Coward, 17 Jun 2013 @ 3:31pm
    
    Re: Re:
    Whether or not it's technically legal is precisely the point if people are going to make the claim that it violates the Fourth Amendment.
    [ link to this | view in chronology ]
    - John Fenderson (profile), 18 Jun 2013 @ 9:30am
      
      Re: Re: Re:
      Whether or not it's technically legal is precisely the point if people are going to make the claim that it violates the Fourth Amendment.
      
      I disagree. There are a number of things that are technically legal but that clearly and obviously go against the meaning and intent of the constitution.
      [ link to this | view in chronology ]
  - Anonymous Coward, 17 Jun 2013 @ 3:43pm
    
    Re: Re:
    Whether it's technically legal is exactly the point if we're talking about whether it's constitutional or not.
    
    Found this case doing a bit of research making the point that IP addresses are just like phone numbers for Fourth Amendment analysis:
    Like the defendant in Smith, Petitioners relied on Internet technology to access Twitter, indicating an intention to relinquish control of whatever information would be necessary to complete their communication. They knew that their communications with Twitter would be transmitted out of private spaces and onto the Internet for routing to Twitter. Petitioners nonetheless insist that the Internet is so unlike other communication technologies that there can be no analogy between phone numbers and IP addressing information. The Court disagrees. Both phone numbers and IP addresses must be revealed to intermediaries as a practical necessity of completing communications over their respective networks. See Christie, 624 F.3d at 574 (�Similarly, no reasonable expectation of privacy exists in an IP address, because that information is also conveyed to and, indeed, from third parties, including ISPs.�) (citing United States v. Forrester, 512 F.3d 500, 510 (9th Cir.2008) (�IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers.�)). Both are automatically revealed to the other party and any intermediaries carrying the communication. Both can be associated with particular persons by correlation with other sources of data. Accordingly, the Court finds the analogy between phone numbers and IP addresses persuasive.
    In re Application of the U.S. for an Order Pursuant to 18 U.S.C. 2703(d), 830 F. Supp. 2d 114, 135 (E.D. Va. 2011) (emphasis added).
    [ link to this | view in chronology ]
  - This comment has been flagged by the community. Click here to show it
    
    Masnick = Coward, 17 Jun 2013 @ 6:11pm
    
    Re: Re:
    Whether it's technically legal is exactly the point if we're talking about whether it's constitutional or not.
    
    Found this case doing a bit of research making the point that IP addresses are just like phone numbers for Fourth Amendment analysis:
    Like the defendant in Smith, Petitioners relied on Internet technology to access Twitter, indicating an intention to relinquish control of whatever information would be necessary to complete their communication. They knew that their communications with Twitter would be transmitted out of private spaces and onto the Internet for routing to Twitter. Petitioners nonetheless insist that the Internet is so unlike other communication technologies that there can be no analogy between phone numbers and IP addressing information. The Court disagrees. Both phone numbers and IP addresses must be revealed to intermediaries as a practical necessity of completing communications over their respective networks. See Christie, 624 F.3d at 574 (�Similarly, no reasonable expectation of privacy exists in an IP address, because that information is also conveyed to and, indeed, from third parties, including ISPs.�) (citing United States v. Forrester, 512 F.3d 500, 510 (9th Cir.2008) (�IP addresses are not merely passively conveyed through third party equipment, but rather are voluntarily turned over in order to direct the third party's servers.�)). Both are automatically revealed to the other party and any intermediaries carrying the communication. Both can be associated with particular persons by correlation with other sources of data. Accordingly, the Court finds the analogy between phone numbers and IP addresses persuasive.
    In re Application of the U.S. for an Order Pursuant to 18 U.S.C. 2703(d), 830 F. Supp. 2d 114, 135 (E.D. Va. 2011) (emphasis added).
    [ link to this | view in chronology ]
    - Rapnel (profile), 17 Jun 2013 @ 6:43pm
      
      Re: Re: Re:
      Yeah, because I have a different phone number at least twice a month and it's never the same twice and people could never duplicate and imitate my phone number.
      
      When "law" is successfully twisted into something you desire to further your view law begins to, in real time, eat away at its very premise. Law too guide men, not rule them. And here, in this country, when law has been twisted and mangled in order to DIRECTLY sap the strength of liberty and further empower those that wield power then that course of law has run to an end. The text of the Constitution is simple and we've manipulated ourselves onto the doorsteps of hell.
      
      Our effects consist of our communications. Communications enabled via a third party does not, as it's been painted to be, remotely imply that said third party owns that communication and, even further, any fourth party must not be made privy to those communications without just cause. The party of the first part and the party of the second part should never be made to surrender what is theirs in order to further the standing of parties three through nine-thousand.
      
      No law is held mine should that law take what is rightly mine - as I live and breath.
      [ link to this | view in chronology ]
Atkray (profile), 17 Jun 2013 @ 3:15pm

Obama is in trouble
I'm no ploy-sci major but being in agreement with Dick Cheney and in disagreement with Al Gore on a single issue can't possibly be good for Obama.
[ link to this | view in chronology ]
Anonymous Coward, 17 Jun 2013 @ 3:23pm

And who should know better than the guy who invented the internet?
[ link to this | view in chronology ]
- Niall (profile), 18 Jun 2013 @ 6:05am
  
  Re:
  What? I haven't heard anything from Sir Tim!
  [ link to this | view in chronology ]
Anonymous, 17 Jun 2013 @ 3:31pm

Wouldn't Smith vs. Maryland actually work AGAINST the NSA? The NSA handed data over to a third party, therefore they have no expectation of privacy in that data. So with Smith vs. Maryland in mind, what did Snowden do that was so wrong?
[ link to this | view in chronology ]
PRMan, 17 Jun 2013 @ 4:02pm

Never thought I would see the day...
Never thought I would see the day where I agreed with Al Gore...
[ link to this | view in chronology ]
- Niall (profile), 18 Jun 2013 @ 6:06am
  
  Re: Never thought I would see the day...
  *pat*pat* there there...
  
  I know, it sucks anytime I find myself agreeing with any of the Republicans.
  [ link to this | view in chronology ]
- Loki, 18 Jun 2013 @ 11:22am
  
  Re: Never thought I would see the day...
  I don't think of it as agreeing with Al Gore, as much as Gore actually agreeing with some of us who have been saying this for years.
  
  My problem with what he said, is that he didn't seem to have a problem with it when it when his boss started the program, nor have I seen any sign of him criticizing Bush for doing so.
  
  I think if he's truly sincere in what he's saying, he'd admit his own culpability for helping create this mess, and admit he was wrong.
  [ link to this | view in chronology ]
LVDave (profile), 17 Jun 2013 @ 6:03pm

Never in a million years...
did I think I'd EVER be agreeing with ANYthing Algore spouted out of his loony liberal mouth, but in this case, he's absolutely right...
[ link to this | view in chronology ]
Anonymous Coward, 17 Jun 2013 @ 6:23pm

I'm sick of this NSA bullshit I'm super cereal.
[ link to this | view in chronology ]
anonymous howard, 18 Jun 2013 @ 1:57am

if gore says it...
then clearly it's not the case, based on his track record. The NSA has nothing to fear now.
[ link to this | view in chronology ]
RyanNerd (profile), 18 Jun 2013 @ 6:42am

What really concerns me is that
I actually agree with something that Al Gore said?!!??
[ link to this | view in chronology ]
Anonymous Coward, 18 Jun 2013 @ 10:53am

What's amazing is that the 4th Amendment is not that complicated, and certainly does not put up some giant barrier for law enforcement. All they have to do is show probable cause and get a warrant

It does seem like many of the NSA boosters out there are difficult to talk to because they don't understand the privacy problems raised by these programs, even though these problems seem obvious to us. By the same token, Mike, I don't think you fully grasp the problems of interpreting the 4th Amendment, or the difficulties of applying a warrant requirement in all the circumstances you believe it should be imposed.

The 4th Amendment "is not that complicated"? "All" law enforcement has to do is show probable cause and get a warrant? I would suggest that the 4th Amendment can indeed be complicated, or at least, figuring out where it requires a warrant is complicated. But even assuming you're right, and the 4th Amendment requires police to get a warrant based on probable cause in order to obtain any sorts of records from telephone or internet providers, do you actually know whether this is difficult standard to meet? Or how much time it takes? I suspect that you may have an inaccurate picture in your mind of what the probable cause requirement is and what it takes to meet it in practice. For example, you say "probable cause." But "probable cause" of what? Probable cause to believe something is true or false? What's the rest of the standard? If you don't know what it is, you're not alone (that's part of the difficulty of applying these "not that complicated" standards). But what do you think it should be?
[ link to this | view in chronology ]