DOJ Says Americans Have No 4th Amendment Protections At All When They Communicate With Foreigners
from the expectation-of-privacy? dept
We've already questioned if it's really true that the 4th Amendment doesn't apply to foreigners (the Amendment refers to "people" not "citizens"). But in some new filings by the DOJ, the US government appears to take its "no 4th Amendment protections for foreigners" to absurd new levels. It says, quite clearly, that because foreigners have no 4th Amendment protections it means that any Americans lose their 4th Amendment protections when communicating with foreigners. They're using a very twisted understanding of the (already troubling) third party doctrine to do this. As you may recall, after lying to the Supreme Court, the Justice Department said that it would start informing defendants if warrantless collection of information under Section 702 of the FISA Amendments Act (FAA) was used in the investigation against them.Last October, it finally started alerting some defendants, leading courts to halt proceedings and re-evaluate. As two of those cases have moved forward, the DOJ is trying to defend those cases, and one way it's doing so is to flat out say that Americans have no 4th Amendment protections when talking to foreigners.
The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. . . . For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.This argument is questionable on so many levels. First, it's already relying on the questionable third party doctrine, but it seems to go much further, by then arguing that merely providing information to a foreign person means that it's okay for the US government to snoop on it without a warrant. The DOJ further defends this by saying, effectively, that foreign governments might snoop on it as well, so that makes it okay:
Moreover, any expectation of privacy of defendant in his electronic communications with a non-U.S. person overseas is also diminished by the prospect that his foreign correspondent could be a target for surveillance by foreign governments or private entities.With this, it appears the DOJ is trying to attack the idea of the reasonable expectation of privacy that has been the basis of the 4th Amendment in the US. They're effectively arguing that since foreign governments might look at the info too, you should have no expectation of privacy in any communications with foreigners and thus you've waived all 4th Amendment protections in that content.
That's crazy.
In fact, they flat out admit that they're stripping Americans of any 4th Amendment rights with this claim, noting that communicating with foreigners means you've likely "eliminated" your 4th Amendment protections.
The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.The implications of this argument, if upheld by the court is staggering. It would seem to fly in the face of basic logic and historical 4th Amendment law, all discussing how it's the expectation of privacy that matters. And I'm fairly certain that most of us who regularly communicate with folks outside the US have quite a reasonable expectation of privacy in such communications (though, to be fair, I've been much more actively using encryption when talking to people outside the US lately).
As Jameel Jaffer of the ACLU points out, this eviscerates basic Constitutional protections for many Americans:
The government's argument is not simply that the NSA has broad authority to monitor Americans' international communications. The US government is arguing that the NSA's authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.I'm curious if anyone wants to defend this as a reasonable interpretation of the 4th Amendment, because it seems quite clearly a complete bastardization of what the 4th Amendment says and how courts have interpreted it over the years.
In the government's view, there is no need to ask whether the 2008 law violates Americans' privacy rights, because in this context Americans have no rights to be violated.
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Filed Under: 4th amendment, communications, doj, fisa, fisa amendments act, foreign persons, section 702
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What 4th?
Is it just me that sees a really huge issue with this logic. You know, like them next saying, "You have no expectation of privacy in any communication because your communication could be a target of 'foreign hackers'"
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Re: What 4th?
I am gonna become a private dick, cause then I can surveil anybody, without any downside. Peeping Tom? Ha!. I am on a surveillance gig./s
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and we all thought
When a government turns totally and thoroughly against its citizens, it does not bode well.
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Re: and we all thought
There are numerous ways for a US citizen (native born) to be in contact with foreign nationals without ever leaving the US or contacting anyone overseas. Many foreign nationals are legitimately in the US. Unless you live is some remote backwater you are likely to meet several.
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Re: and we all thought
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Re:
You are guilty before you are even accused!
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Re:
You seem unfamiliar with today's Supreme Court.
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Tranparency
Now it is just a matter of time to see how the American people react to this, to the fact that their rights are being taken away from them.
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Obviously
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Re: Obviously
You are guilty before you are even accused!
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Re: Re: Obviously
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Game, set, match.
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Having said that I further presume that any communication with anyone in any country will also be potentially monitored by those same baleful agencies, so that at least is new. None of this causes feelings of friendship or understanding.
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These rights are for all people...
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Re:
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Re: Re:
The 4th Amendment doesn't say "people." It says "the people." That's important, because the 4th Amendment doesn't exist in isolation; it's an amendment to the Constitution, and the term "The People" is defined at the very beginning of the Constitution as the citizens.
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Re: Re: Re:
Neither does it say individual persons.
The people of the United States have a collective right to be secure against gangs of government bandits roaming the land, assaulting women and children, breaking into houses, stealing property.
In the great case of Entick v Carrington, Lord Camden averred:
Indeed, only the collective action of society can remedy the trespasses of armed gangs. Individuals, standing by themselves, are outnumbered—powerless against the depradations.
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Re: Re: Re: Re:
Armed gangs also known as "law enforcement".
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Not a big deal
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Re: Not a big deal
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Re: Re: Not a big deal
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Re: Not a big deal
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There goes all 4th Amendment rights on the Internet
Heck, consider the physical world - I could have a bug in my house from some Chinese product I bought (that the US government has scared me into thinking is likely, because the US government is already doing this to US products...), so I have no reasonable expectation of privacy anywhere because I could be monitored by a foreign entity.
Just wait until we get brain bugging...
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Re: There goes all 4th Amendment rights on the Internet
That's just the "D" talking man.
Come on over to Nwe Path, we can help you get better.
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Re: There goes all 4th Amendment rights on the Internet
they have cracked the problem of nanobots being rejected by our bodies, by essentially coating them with a bio-goo that lets them get around in the body without being attacked by macrophages, etc...
(heh spel czech, macrophage is a word, get over yourself)
we (and when i say 'we', i mean the 1%) have ALREADY 'established' that if the surveillance by The They(tm) is -you know- 'unobtrusive', then it is okey-dokey...
thus, a nanobot up every butt ! ! !
all perfectly legal-like...
(or, well, you know, like the *appearance* of legality, that's all that matters...)
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Re: Re: There goes all 4th Amendment rights on the Internet
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The nut of the problem with the thrid party doctrine
This is the first time I've heard a government official correctly state what the third party doctrine actually means.
The problem is this -- there's no way this allows for spying or compelling others to fork over your information. The third party doctrine acknowledges (correctly, in my opinion) that the person you communicated with can do anything they like with that communication -- although I would argue that contracts such as nondisclosures can limit this broad statement. But when that person is compelled or spied on, they are not deciding for themselves what is being done with that communication, so the third party doctrine would not apply at all.
In other words, I tell you some piece of information without some nondisclosure agreement. If the government asks you for that information and you voluntarily give it, there's no Constitutional issue. If the government legally forces you to give it (say, through an NSL), the third party doctrine does not apply and this is not Constitutional. Same with spying.
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Re: The nut of the problem with the thrid party doctrine
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Re: Re: The nut of the problem with the thrid party doctrine
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Re: The nut of the problem with the thrid party doctrine
Or is the DOJ being a hypocrite again?
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Re:
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now upgraded to borderline skeptic
As I posted before (in 2 articles), it's time to sue the Government for violating the Constitution. We're running out of peaceful options, & the clock is already in the negatives.
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Re: now upgraded to borderline skeptic
Getting the supreme court to rule these actions unconstitutional, getting congress to fix the actual laws, or (of course) putting someone in the White House that sees this as a problem and just stops it.
There are a lot of peaceful solutions. We don't need to rally the minutemen quite yet.
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Re: now upgraded to borderline skeptic
While I am not in a position to jump onboard now, if it becomes a class action suit, I'll be happy to sign on.
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Re: Re: now upgraded to borderline skeptic
we won't tell you if we are spying on you, and even if you have 'proof' we are spying on you, we can't allow that proof to be divulged, therefore, you (OR ANYONE) don't have standing to sue us for illegally spying on you...
that's some catch, that catch-22...
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Re: Re: Re: now upgraded to borderline skeptic
There is plenty of evidence (I'm not sure how to obtain or organize all of it for this, though) showing the Government under the last 2 Presidents have been trying to kill, ignore or water down Constitutionally Granted Rights, pretty much across the board. As I said, about the only Amendments they haven't dared to try to at least weaken are directly about the formation & function of the Government, things that they CAN'T get away w/ even trying to modify. Gun Control has given them a foot in the door to weaken Rights, so it isn't as obvious to everyday citizens not paying attention that the Government has gone Rogue.
If I was in a position to spearhead this, I might see if Popehat could help out, but I'm not. I know there has to be someone better equipped to do this than me.
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Time for a divorce.
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I'll give it a try, but I'm not a lawyer and I'm not sure I agree with the DoJ's statement either.
It seems like they are saying something like, "overseas is outside the Constitution's jurisdiction."
The 4th Amendment starts "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated", so I guess the DoJ is arguing that foreign communications are so far removed from person, house, papers, and effects, that it is not covered.
It's one thing to keep personal notes and expect them to not be searched without a warrant, but it's another to log onto a computer you presumably own and send a message over wires you don't own, managed by a company you don't own, using electricity you don't own, to a mail server you don't own, run by another company you don't own, etc, etc. Does voltage in a wire in Asia count as your property? No. Should you reasonably expect that the voltage in a wire in Asia will be private? No.
Does voltage in a wire in the USA count as your property? No (at least, not once it leaves your house). Should you reasonably expect it the voltage of a wire in the USA to be private? No (at least, not once it leaves your house).
But, since we humans attribute meaning to those voltages, and as they can be interpreted to mean a message that a human intended to be private, the govt cuts us some slack if it stays in the USA.
> They're effectively arguing that since foreign governments might look at the info too, you should have no expectation of privacy in any communications with foreigners
They aren't arguing this, they're just using it as an example. Imagine a scenario where a US person confesses to murdering some high profile dignitary to a friend in the UK. GCHQ intercepts this traffic, sees that it regards the murder, and notifies the US govt. Should the govt act on this knowledge, or would acting be in breach of the 4th Amendment?
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Re:
What if, for instance, you are using a cloud storage service? If the server is in another country the NSA can check it out? What if it is in a country in which you can reasonably expect privacy?
Given we are talking about the US government - which has a very cozy relationship with internet providers, is it ok for them to read any data that happens to travel over a wire or server outside of the US even if the destination is in the US? I can see Verizon being "asked" to route traffic offshore so they can have a look.
I could ALMOST see an argument with specific communications with a foreign national, but it opens up too much. What if you email a US citizen that is in Canada at the moment? When is the communication fair game - if you send an email to a foreign national and it gets bounced back can they open that one?
The eitire thing is WAY too full of what-if's.
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Re: Re:
I suppose, for the sake of consistency, yes they can read your mail at the border and yes they can check the overseas cloud storage. Fortunately, encryption exists. So, both mail and cloud storage will remain private even if read by a third party while in transit.
Second, the "route offshore then back to US" loophole doesn't work because to use that loophole, you need to know that the target is located in the US, and that makes the target off limits according to the law.
For you last point, I don't know the answer. I don't know what protections the USA guarantees USA citizens who travel abroad, if any.
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Re: Re:
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Re:
A search or seizure which takes place outside the territorial jurisdiction of the United States is outside of the warrant requirement.
First, consider a prototypical warrant: It's an order from the court commanding the state's officers to go out and break into someone's house, steal their stuff, and bring that shit back to the court.
Now it may not be obvious, but ordinarily, breaking into someone's house, stealing their shit, and taking it someplace is wrongful. But, when the court commands officers to do that, the court kinda promises that the those officers probably won't be held to answer for a felony. The court gets to say that in its locality.
As a corollary, if the officers go out and break into houses, and steal stuff in some other court's locality, then it's that other court that gets to say whether the officers are committing a serious crime.
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Re:
Does the 4th amendment apply to an ink on paper note sent through the US postal service? Yes, of course. What about an ink on paper note sent through UPS or Fedex? Again, of course it does. Why would it not apply to a collection of bits that represent a note sent through a wire? The government doesn't 'cut us some slack' - the government is absolutely prohibited from snooping on those things without a warrant that describes what is to be searched.
Additionally, the 4th doesn't specify that my right to be secure is dependent on only communicating with other US citizens while in the US.
As to scenarios I can imagine - do you think that US courts should be accepting into evidence used to convict someone something that was gathered by a foreign intelligence service? Does it matter if they are our allies, or would something from Russia or China be good too?
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Re: Re:
As for your second point about the 4th, I agree.
As for the scenario, I think the USA would treat the foreign info as a tip and launch their own investigation to vet the info. They wouldn't just blindly accept the tip as fact.
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Constitution has no boundaries for US Citizens
For US Citizens there are NO boundaries for it's protections against domestic spying, etc.
If that were true, all our government would have to do is wait for a troublesome person to travel abroad and then snatch them, put them on trial on foreign soil and be done with constitutional rights.
Since that CANNOT happen, because everyone knows that our rights as citizens do not evaporate because we've crossed certain landmarks, that applies to our communications as well.
Sorry CIA, NSA, FBI, TSA, your actions are treasonous and you all are Traitors to our Country.
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Re:
This is a completely false comparison. In the above situation, GCHQ immorally, but likely legally, 'intercepts' private communications in the UK, sees this talk of murder, and notifies the US government. If the US government acts on it, it would be doing so as the result of being notified by GCHQ. Only how it acts as a result could be a breach of the 4th amendment.
Now on the other hand, if the NSA 'intercepts' the same private communications in the US, that absolutely is a violation of the 4th amendment, regardless of whether a non-US person is involved. The key difference is where the communication takes place, and what they're trying to pass off is the idea that if any non-US person or place is involved, that that somehow negates the fact that the US and US citizens are also involved.
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threats to American national security?
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Re: threats to American national security?
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Re: threats to American national security?
At worst, China and AQ can kill a few million of US. The other guys want to enslave US all.
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Expectations
sure
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ifs & buts
in this twisted logic, DoJ can interpret any digital contact with what is considered foreign entity within US boundaries i.e. UN buildings, foreign embassies etc. or even a digital packet routed beyond US jurisdiction into international zone can be considered a fair game. That is, since all satellite signals can cross beyond US boundaries, all communications through satellites can be intercepted as having made foreign contacts...
what fantasy novel are they reading in these departments?
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ads
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Let me get this right...
So if I am talking to myself, I have an expectation of privacy, but if I am talking to a potted plant, I don't?
I don't have an expectation of privacy if a cat is sitting in the room while I am talking to a friend? Because there are listeners which are clearly not American citizens?
If Groucho Marx lived today, he'd be leading the Department of Justice since apparently the greatest qualification is keeping a straight face.
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Re: Let me get this right...
If the potted plant talks back, I hope someone is taking notice of you.
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Re: Let me get this right...
Yes, you do, because a potted plant is not a "non-U.S. person located outside the United States" (quote is from the US argument above).
" expectation of privacy if a cat is sitting in the room while I am talking to a friend?"
Same argument. If your friend is a "non-U.S. person located outside the United States" then you don't have a justified expectation of privacy, otherwise you do.
"listeners which are clearly not American citizens?"
If your friend is *outside the US and is not a US person* then the US says no expectation of privacy otherwise yes. And note, a US person is NOT the same as a US citizen. A US person is officially defined as a US citizen or a permanent resident (an alien lawfully admitted to residence within the US, like me). So talking to a foreign citizen who a permanent resident IS protected.
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Re: Re: Let me get this right...
1) The US government is not the US.
2) The only way the US government can legally take away the 4th amendment is with another amendment, though those who stand to benefit will try to tell you otherwise at every turn.
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Please someone start a website that lists the people responsible for this crap.
As of now this information comes from so many different places, it is hard to keep track of who did what and when.
Maybe a wiki page with name - date of offence against the citizens - offence description.
I will be happy to donate your choice of blindfolds, rope, or a wall.
We may not agree with everything our gov does, but this piecemeal removal of our constitution is just getting to be too much.
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Curious About Edge Case
1) Do we have legal expectation of privacy for this call?
and
2) How will they argue to twist logic to remove that right?
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Re: Curious About Edge Case
1) Do we have legal expectation of privacy for this call?
In that case, I believe you do. From my understanding (and I could be wrong), the NSA does interpret "US persons" to be both anyone inside the US (even non-citizens) and any US citizen abroad.
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Re: Re: Curious About Edge Case
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Re: Re: Re: Curious About Edge Case
I seem to recall this is where they are supposed to have a reasonable confidence (51% or more) that you are not a US person. It was in the Snowden stuff somewhere. So if they know you are a US person or strongly suspect it (and yes they are supposed to try to ascertain and not guess), then they're supposed to abide by your 4th amendment protections.
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Re: Re: Re: Re: Curious About Edge Case
The government is taking the position, well we gonna violate all your rights, but then take no action if it isn't needed, and since you don't actually know that we already violated your rights, you have no standing to find out if we actually violated your or anybody else's rights. See, no harm no foul.
Wrong!
That is not right.
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Re: Re: Re: Re: Curious About Edge Case
In what world is 51% confidence "reasonable confidence"? That's barely better than flipping a coin.
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Re: Re: Re: Re: Re: Curious About Edge Case
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Re: Re: Re: Re: Re: Curious About Edge Case
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Re: Re: Curious About Edge Case
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Re: Re: Re: Curious About Edge Case
Look, I'm a reasonable person. If there's a specific reason for the NSA or other government agency to be targeting someone (foreign or not) and getting their communication, and I happen to communicate with that person, then of course they're going to read what I said/wrote. That's perfectly fine - assuming they had a specific reason to be obtaining the target's communication. If they've got that specific reason, then there is no reason they couldn't get a specific warrant for that target's communication.
Other than sheer laziness, I don't see why a warrant requirement, and competent oversight by a non-rubberstamping FISA court is so difficult.
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Re: Re: Curious About Edge Case
All reasonable people now expect that the US Government snoops everywhere and collects everything - they'll blackbag your office, keylog your computer, backdoor your router, and hoover 70% of all internet traffic - and before you know it, it will be published to the whole world by the next Manning or Snowden.
Why wait for the spooks to leak your secrets? Do all your business in public, post it yourself on Facebook, and cut out the middleman.
The expectation of privacy was a naivete of the 18th century, according to our distinguished Juris Doctors of the new millennium. Just let it go already, you're holding back progress.
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Re: Curious About Edge Case
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FAIL
The US Constitution only Applies to CITIZENS!!!!
"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to OURselves and OUR posterity, do ordain and establish this Constitution for the United States of America."
The Constitution protects American Citizens from the American Government regardless of location.
The government CAN monitor other noncitizens communications, but they cannot monitor a Citizen without warrant to comply with the 4th. This is the law according to the Constitution so long as at least 1 member of the persons being monitored is a Citizen. There is no exception given that just because a foreigner is involved that a person loses their rights! If a foreigner is chatting with a Citizen then a warrant is required. The Language is PLAIN and CLEAR yet the water is so easy to muddy with so much stupid walking around!
Everyone seems to be massively ignorant about these things!
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Appears that you are the ignorant one
They cannot record / read any of what we say, period.
You sir are aiding and abetting treason.
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Re: Appears that you are the ignorant one
You clearly fell off the top of the stupid tree and aggressively face planted every branch on the way down.
There would be only one way for them to lawfully monitor 1/2 of the conversion without breach of the 4th. And would be if an agent is standing next to the person on the non-Citizen side of the call.
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Re: FAIL
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Re: Re: FAIL
"The PROTECTIONS in the US Constitution only protects CITIZENS!!!!"
Sorry if didn't get the wording syntactically correct. Maybe you want to run me over with the spelling Nazi bus too? I think people figured out what I was saying.
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Re: Re: Re: FAIL
The fact that you've capitalised the first letter of constitution looks odd, but may be a thing in the U.S. so I won't mention it.
The Nazis were very nasty people, but I'm not sure their insistence on correct spelling or grammar is generally noted as one of their defining characteristics, whether it was something they did or not.
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Re: Re: Re: Re: FAIL
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Re: FAIL
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Re: Re: FAIL
But if a person is here unlawfully, as in were previously asked to leave and never come back, and especially if they are committing crimes, then it should be clear that they have NO rights, and whatever happens, happens.
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Re: FAIL
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Re: Re: FAIL
"that they are endowed by their Creator with certain unalienable Rights"
Since there is allegedly no such Creator - there can be no such Rights. Until it can be proven beyond a shadow of a doubt that the world we live in has been created - versus shear astronomical happenstance, the Constitution is wholly void and without substance. How unfortunate that it seems we are all irrelevant.
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Re: Re: Re: FAIL
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Re: FAIL
Who was it who decided that only Ayran heterosexual people had rights? Some Austrian born painter if I Remember rightly.
As soon as you start limiting who has rights you are on the slippery road to concentration camps, along with the killing of those who do not have rights on any whim at all; like GITMO and drone strikes. While a warrant does not apply directly to foreigners, NSA should still show good reason to whoever has oversight of their activities before spying on a person, company or organization.
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Re: Re: FAIL
How does Citizen mean Aryan heterosexual, are you processing the English language or one made up on the spot? Citizen is anyone that is either naturally born here, or naturalized (legally becoming citizen), or born from a parent that is currently a citizen. This can include anyone, its not race/gender/religious/politically/whatever specific.
Gitmo has nothing to do with the Constitution until a Citizen is imprisoned there inside of it. It does however seem to be in breach of some Geneva Conventions so those do apply as we signed the treaty. Additionally its our national reputation that is at stake operating it the way we do.
This not a slippery slope, the idea that everyone including non-citizens are protected by the Constitution is the slippery slope!
Go and read the Preamble, we secure this for ourselves and no one else!
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Re: Re: Re: FAIL
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This is a big win for voyeurs!
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Re: This is a big win for voyeurs!
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Connect the dots
2. DOJ claims the 4th Amendment does not apply to non-US citizens.
3. DOJ claims that US citizens' expectation of privacy under the 4th Amendment is waived when communicating with non-US citizens, who have no expectation of privacy or 4th Amendment protection, all under the third party doctrine.
4. (Future) DOJ claims the lack of 4th Amendment protection applies to foreign corporations as well, based on Citizens United idea that corporations are people in some instances. DOJ stretches this to include searches not protected by 4th Amendment.
5. (Future) DOJ claims that since you transmit your data to a foreign company over the internet through servers based outside the US, you are "disclosing" that information to a "third party" not protected by the 4th Amendment. Therefore, there is no expectation of privacy in information handled by foreign corporations.
6. (Future) DOJ claims that since domestic companies (also considered people in 4th Amendment context - Applies to 1st as well as 4th) communicate with foreign companies, which have no 4th Amendment protections, are thus not able to claim 4th Amendment protection for searches of THEIR databases, which include US citizens' data. (You Google "Vacation in Spain." Google provides links to websites hosted in Spain. Therefore, Google transmitted your data to Spain. Thus, NO 4th Amendment protection.)
Looks like a slippery slope, but they seem to be heading in a direction very similar to this...
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Re: Connect the dots
Oh and since the document also seems to preclude nonamericans from being considered as persons so that means there are no persons in the rest of the world
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They read all communication in and out, right?
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Just Ice
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Re: JEEZ! WHY CAN'T WE BE A COMMUNIST COUNTRY ALREADY?!!!!!
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Re: Re: JEEZ! WHY CAN'T WE BE A COMMUNIST COUNTRY ALREADY?!!!!!
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Re: Re: Re: JEEZ! WHY CAN'T WE BE A COMMUNIST COUNTRY ALREADY?!!!!!
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Re: Re: Re: Re: JEEZ! WHY CAN'T WE BE A COMMUNIST COUNTRY ALREADY?!!!!!
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Maybe reasonable
If you take it as fact that non-citizens have no 4th Amendment rights, then saying something to a non-citizen is essentially equivalent to putting it in plain sight.
Let's say your neighbor is murdered. They find him chopped up into little pieces. It's horrible. They naturally knock on your door to see if you heard anything. If you answer the door holding an axe, covered in blood from head to toe, you have put out in the open that you are very likely the crazy person who murdered the neighbor. If you answer the door in a clean shirt and politely answer their questions, they will have to find some evidence and get a warrant to go find the bloody axe you shoved in the coat closet.
So telling something to a person who has no 4th Amendment protection is basically the same thing. You have taken something that you could have kept "hidden" where a warrant is needed to access it, and put it out in the open where anyone can discover it.
Since this is a pretty horrible result, I think we ought to go back and look at the assumptions that got us here. But given those assumptions as fact, I don't think this is an unreasonable conclusion.
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Re: Maybe reasonable
You're absolutely right that we have to go back and have another look at the assumptions that got us here. The US Bill of Rights should apply to what the government can do concerning all people, not just US-Citizens.
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Re: Re: Maybe reasonable
Unfortunately that's exactly what we do.
Didn't Mike mention a week or three back that the Constitution is pretty careful to use "citizen" most of the time, but sometimes uses "people"? As in, some parts are deliberately meant to apply just to citizens, and some to all people? This is a reasonable distinction to make, as certainly citizens should have some rights not granted to all people.
But if that's the case, and the 4th Amendment says "people", then it's pretty clear it's meant to apply to everyone.
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Re: Maybe reasonable
But this is certainly wrong.
Suppose a Canadian tourist is visiting New York City and staying in a hotel. A group of armed men breaks into the tourist's hotel room, assaulting the tourist, briefly holding him captive, while they tear through his suitcases, looking for cash and credit cards. The armed men take away the cash, credit cards, and the tourist's camera.
If the armed men are the servants of the state, then that trespass with force and arms needs a damned good reason.
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Re: Re: Maybe reasonable
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Re: Maybe reasonable
This is where the argument hinges, as I see it. They are saying that if a non-US person or location is involved, then they have the legal right to take the private information from the US person directly, rather than taking it from the 'plain sight'. I might be able to agree with taking it from the 'plain sight', but using that lack of reason to take it from the US person is still a violation of the 4th amendment. Further, you're analogy is false (primarily) because of the assumption of criminal activity, which is not necessary with regard to what the D.O.J. is saying.
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Mike Masnick Using encryption???
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Re: Mike Masnick Using encryption???
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Communication with Foreigners
So by the DOJs own logic they prosecuted Ms. Manning under false pretenses and have no reason to deny any FOIA requests for document concerning communications with foreign entities.
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My expectation of privacy has always been zero (perhaps due to knowing too much). The NSA's primary duty, since its inception in the Cold War era, has been to monitor all domestic communications to the outside world -- particularly long-distance telephone calls. Like just about everything else during the Cold War, one of the (implied) justifications was that since the Soviet Union was (presumably) doing it, then the US needed to also, just to 'level the playing field'. (Since the Soviets were planning nuclear extermination of the United States [or so everyone was told] then eavesdropping was therefore a small price to pay in the fight to prevent our planned extinction.)
Of course the existence of mass-wiretaps completely trashes the 4th Amendment, but because it's been the US government's standard operating policy continuously since World War II, it seems a well-established precedent.
But since the Internet has made it difficult to accurately differentiate between domestic and foreign origins, the NSA therefore needs to record everything just to maintain its historic mandate.
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Re:
No wonder we are going down hill fast. This is the most fundamental problem with corrupt human beings. The constant re-wording of the meaning of things to justify anything.
It really, really just seems that the only way to make a human understand is to mass slaughter their own people. The history of the world proves that slavery is possible because most of us are cowards. The US was different, enough of us decided that we would be cowards no longer and make a nation that would refuse the oppression of government in any form... 200 years later... oppression is back in every sense of the word, yet we still piddle with the meanings of things as though these have not already been long settled in courts many decades ago.
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Re: Re:
Just consider the 2nd Amendment. For most of this country's history, "the right of the people to keep and bear arms" meant exactly what it said, not one iota less. But now that gun control has been a fact of life for the last 80 years, practically no one today thinks the 2nd Amendment should be interpreted literally, as in the private ownership of military-grade weaponry (though to be fair, many American colonists in 1776 had better weaponry -privately owned- than the British army issued its soldiers in which to fight them).
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next step...
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Re: next step...
So the REAL next is that we just make a law that says, stepping outside of your home relieves you have any 1st, 2nd, & 4th amendment rights... because making a new law can just trump any amendment. This is FACT TOO! 2nd amendment has long been trashed with this despite the Signers of the Damn Declaration of Indefuckingpendence making it CRYSTAL CLEAR just what the 2nd means!
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Re: Re: next step...
Technically, no. As the highest law of the land, the U.S. Constitution (or any part thereof) can only be undone with a Constitutional amendment. See this for more.
In practice, yes, they shit all over dignity, decency, the Constitution, morality, ethics, etc. while simultaneously spitting in everyone's collective face. Just don't let them convince you that it's legal.
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Re: next step...
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Collect It All
By the government's reasoning, even citizen-to-citizen domestic communications would be searchable because there is always the risk that any recipient "will give information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information."
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Re: Collect It All
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Wide ranging indeed
Before the internet really got going, and communications were limited to mail and telephone, you had to specifically, and intentionally, contact someone in another country, and you knew that they weren't in the same country as you. Now though? The only way to tell really is if the one you're talking to tells you.
Combine the uncertainty with the NSA's '51% probability that they're foreign is good enough for us' idea, and if this is argument is accepted, there won't be any limits at all for what data they can gather, because everyone might be communicating with someone in a foreign country.
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Um
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Vote!
It's called an election, and as long as _we_ keep voting for the same type of people over an over, we will get the same result.
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Re: Vote!
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Re: Vote!
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Re: Vote!
No, we tried an Election, & that backfired because Politicians are allowed to lie to the Public & the Government pretends it can keep what they think the Law means a Secret.
Until lies, secrets & money are removed from Government, there's no guarantee an Election gets us out of this.
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Re: Re: Vote!
So, even if we were to manage to get someone else elected to the White House, there's still no guarantee the Electoral College would put him or her in. I pointed out, not too long ago, that one scenario I could see for starting a Civil War was a landslide Popular Vote victory by a Third Party Candidate, but a Democrat or Republican still end up placed in the White House by the Electoral College.
The only way an Election would be guaranteed to fix the current situation is if there was major upheaval in the House & Senate & tons of new people, intent on erecting barriers to Constitutional Violations, were elected in, which is, currently, probably the least likely scenario to play out.
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Does this means that i can get drunk on your streets and get away with it because my laws allow it?
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Aha, let the sheeple know!
http://www.pbs.org/newshour/rundown/glenn-greenwalds-book-made-film/
Oh, oh...I can see the fight now. Who will be playing Edward and who will be playing Glenn?
On the other hand, publicity that is directed at the general public should be a good thing. Hopefully, Sony (yeah I know) will allow the director to delve into the nitty gritty. Then the public will actually know what is going on.
Big Media sure won't tell them.
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Bill of Rights
It sets specific limits on what the US Federal Government can do. No where does is say that that these limits on the Federal Govt only apply if other governments have the same or similar limits.
This is like a 13 year old getting caught sneaking in late and pointing at the 17 year old sibling and saying, "Well they get to stay out as long as they want so why cant I?"
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https://en.wikipedia.org/wiki/Bill_of_rights
Second section in the article. We can only dream of rights and constitutional protections.
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Terminal logic fail
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Re: Terminal logic fail
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Third party doctrine in a nutshell:
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Oh also since I am now communicating in this forum/site.. You are all stuffed.. Stuffed I tells ya!
Muwahahahahaha.. ;)
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Abstracting the argument.
1. We might be spying on you without a warrant.
2. Now that you know we might be spying on you, you have no expectation of privacy.
3. Since you have no expectation of privacy, we can spy on you without a warrant.
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Re: Abstracting the argument.
In the end, all of the constitution boils down to one thing: you don't deserve what you are not willing to fight for. It was that way for the founders of the republic, and it is the same way for those who have sold it away.
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Constitutional toilet paper
Cannot help but wonder if the old three-step dance applies to this situation as well. If so, and NSA can indeed spy on anyone within 3 steps of separation from the original callers involved in a overseas call, then this means that according to the internal policies of the NSA, Americans have no rights to be violated, period.
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DOJ wrong again!
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giggles
Please pick one side of an argument and stick with it.
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Defending the Indefensible
Sure!
Let's start with what 'reasonable expectation of privacy' means.
In an age when we *know* the NSA is sucking down vast gulps across the internet backbone and phone data, obviously, people who send unencrypted communications have no reasonable expectation of privacy.
This is circular logic, of course. They're spying on us, so there's no reason to expect privacy, so they get to spy on us.
So the legality of spying hinges on the fact that we found out.
So. NSA spying was illegal until Snowden blew his whistle. But now it's okay!
Really, they ought to give Snowden a medal.
I'm glad we got that sorted out.
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Did I get that right??
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