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View Diary: NYT's Orwellian Lead: AG Holder Officially Signs Off On "Total Information Awareness" For All (278 comments)

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  •  Wait, what? You don't think there are some major (3+ / 0-)
    Recommended by:
    StrayCat, 3goldens, pgm 01

    4th amendment issues here?  The gathering of private info by a government agency to be "mined" as they see fit would seem to be a a gross violation of the 4th amendment.  

    Don't throw a bomb like that and say stay tuned.  Make your basic case here.  

    •  OK here are the basics (4+ / 0-)

      1. For the overwhelming length of US history, electronic communications were not protected by the 4th Am. -- first because there were no electronic communications; then after the telegraph and telephone, because the SCOTUS decided explicitly that the 4th Am did not apply to wiretaps.

      2. The SCOTUS first began to say that the 4th Am applied to electronic communications in the late 1960s (US v Katz).  But all it said was that warrantless wiretaps could not be introduced into evidence ("exclusionary rule").  This had the unexpected effect of giving a greenlight to J. Edgar and Nixon to wiretap crazily as long as they weren't trying to gather evidence for a trial.  This was the low point of electronic privacy: Watergate, persecution of MLK, etc.

      3. Because SCOTUS said the ONLY protection we have is that warrantless wiretaps can't be introduced into evidence, Congress stepped in with a few statutes making it a felony for NSA and law enforcement to tap without a warrant.  These statutes have loopholes big enough to drive a truck through -- or drive an NSA intercept super computer through.  SCOTUS has never said that broad data mining of private communication violates the 4th Am; in fact they've never said that wiretaps not used for evidence violate the 4th Am.

      In fact, when you look at when an "intercept" becomes a "wiretap" you'd be shocked.  The NSA can intercept with computers, sort, save, and even route to an "analyst" for reading and analysis and it's still not a "wiretap."  It becomes a wiretap only when NSA provides a transcript to an operational agency.

      4.  As a result, the programs described by Bramford are completely legal and constitutional -- even if we don't like them.

      5. What Bush did went far beyond data mining, scanning and saving communications.  This is what most people don't understand.  Bush was wiretapping individual members of the political class to intimidate, extort and threaten people -- eg well documented cases of Colin Powell, Jane Harman, Elliot Spitzer.  The reason for the disconnect between the Obama administration and critics is they seem proud that they ended this Orwellian control of the political class while reverting to Clinton era data mining and surveillance.

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