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

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  •  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 ]

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