Hey NSA: Even If AT&T Was Collecting The Info For You, The Fourth Amendment Still Applies
from the can't-outsource-constitutional-responsibility dept
We've already written a few articles about the confirmation that AT&T is going above and beyond what's required by the law to be a "valued partner" of the NSA in helping with its surveillance campaign. While it's long been known that AT&T was giving fairly direct access to its backbone (thank you Mark Klein!), the latest released documents provide much more detail -- including that AT&T often does the initial "sifting" before forwarding content it finds to the NSA. To some NSA apologists, this is proof that the NSA isn't so bad, because it doesn't have full unencumbered access to everything, but rather is relying on AT&T to do the searching and then handing over what it finds. Of course, as the documents showed, it's only in some cases that AT&T searches first, in others it appears that the NSA does, in fact, have full access.But, still, as Cindy Cohn at the EFF is noting, if the NSA thinks that having AT&T sift first and then voluntarily hand stuff over somehow absolves it of violating the 4th Amendment with these collections, well, then the NSA is wrong.
Given that the EFF is already challenging this collection in the Jewel v. NSA case, it seems like the latest leak may be somewhat helpful.First some law: the Fourth Amendment applies whenever a "private party acts as an ‘instrument or agent’ of the government." This rule is clear. In the Ninth Circuit, where our Jewel v. NSA case against mass spying is pending, it has been held to apply when an employee opens someone's package being shipped in order to obtain a DEA reward (US v. Walther), when a hotel employee conducts a search while the police watch (US v. Reed), and when an airline conducts a search under a program designed by the FAA (United States v. Davis), among others.
The concept behind this rule is straightforward: the government cannot simply outsource its seizures and searches to a private party and thereby avoid protecting our constitutional rights. It seems that the NSA may have been trying to do just that. But it won't work.
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Filed Under: 4th amendment, 702, backbone, mark klein, mass surveillance, nsa, surveillance, tapping, upstream
Companies: at&t
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Hey NSA: stop raping innocent people.
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Hey NSA: Even If NSA Was Collecting The Info For You, The Fourth Amendment Still Applies
Hey NSA: Even If AT&T Was Collecting The Info For You, The Fourth Amendment Still Applies
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Re: Hey NSA: Even If NSA Was Collecting The Info For You, The Fourth Amendment Still Applies
"Of course, as the documents showed, it's only in some cases that AT&T searches first, in others it appears that AT&T does, in fact, have full access"
Shouldn't that be "NSA does, in fact, have..."
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Re: Re: Hey NSA: Even If NSA Was Collecting The Info For You, The Fourth Amendment Still Applies
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I have a feeling that would be extremely difficult to argue in court.
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Did you read the original report?
The reports suggest AT&T was *by far* the closest cooperator with the NSA. Verizon was a part of a much smaller program, and it's likely a few others were as well. But none were anywhere near as close as AT&T.
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Government sucks but when government wields the power of secrecy it sucks real bad. You can depend on it.
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Which, incidentally, is why Congress needs to approve umpty-gajillion dollars more funding to the NSA so they can catch up with their targets.
See how that works?
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4th Amendment
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We wish. There's plenty of amoral corporations out there who're happy to buy services from other amoral corporations. They don't need all those millions of Joe Blows out there who spend an inordinate amount of time and effort complaining about things like data caps.
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And going down the slippery-slope route, a computer technician finding terrorist-oriented material might be the next logical extension of that 4th-amendment-free zone.
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Totalitarian Surveillance Maniac Traitors
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It's too bad outsourcing search and seizures doesn't apply to automatic license plate reader companies, who turn around and sell database access to law enforcement.
In the future, I imagine all cars will broadcast an identification signal similar to aircraft transponders. At which point we'll always be on the government's radar.
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Whatever NSA wants, NSA gets, and little man, NSA wants you!
"Anonymous Coward, Aug 18th, 2015 @ 2:21pm" had it right on the money.
Matters not one iota what happens - whether the NSA gets its wrists slapped by the courts or not - the only thing that will change is the amount of tax payer's dollars being used to prevent further exposure and the ongoing, unstoppable, inevitable escalation of the process of spying on and weakening the most feared of all gangs - We The People - using more tax payer's dollars.
After all, in war, one must know what the enemy is up to all the times, to whatever extent is possible, regardless of the expense to tax payers.
And We The People are We The Enemy.
And in war, defeating the Enemy takes precedent over ALL domestic law.
What is truly unique about this war is that the We The Enemy is paying for the Munitions and Strategies that its own Government and Military is using against it and that We The Enemy is oblivious to the expense and the damage incurred by the war, because We The Enemy is completely unaware that it is under attack.
And at the rate this is escalating, We The Enemy will be defeated and conquered by its own government and military, to protect the corporations, without a single shot being fired in response.
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