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Originally published in Tikkun Daily |

As a white, Jewish schlump who grew up in Atlanta and now lives in Pittsburgh, I've never been stopped by police based on the blackness of my skin, never been bent over the hood of a sedan and detained based on my dark curls.

While many of my educated, more-sophisticated-than-me black friends have suffered such indignities, I've never been profiled, despite being a minority.

And so when I claim that the NSA's apparent reach into the private lives of Americans is stop-and-frisk on the national level, I do so understanding a key distinction: while the former is being done invisibly, the latter is being done in broad daylight, often with force and harassment.

That said, the NSA's vacuuming up of phone meta data for all Americans, as well PRISM's infiltration into every major internet company's servers, including Google, Facebook and Microsoft, share an important characteristic with stop-and-frisk: the potential violation of Americans' Fourth Amendment rights, which protect against unlawful searches and seizures.

For those who may have forgotten, here is the text of the Fourth Amendment to the Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Police officers have for decades been allowed to stop and detain random citizens who they suspect may be involved in criminal activity. The Supreme Court, in 1968, ruled in Terry v. Ohio that law enforcement may stop and search anyone so long as they have "reasonable suspicion" that something nefarious is underfoot.

The operative word here being reasonable.

However, in stop-and-frisk, "reasonable suspicion" has been stretched beyond recognition into racial profiling. In a pending case before judge Shira Scheindlin, Floyd v. City of New York, there is a strong likelihood that the indiscriminate stop-and-frisk procedures used by the NYPD will be ruled unconstitutional. Why? Simple: the Fourth Amendment protects citizens from being searched unreasonably.

Which brings us to what has been revealed about the NSA's surreptitious collection of every Americans' phone meta-data and, potentially, more more (email and chat logs) via internet servers. Much of the private data that the NSA has been collecting on Americans has been created within the last several years, and there are virtually no legal precedents for whether the collection of such data is lawful or not. (Meaning: for now, it technically is.)

However, the large, constitutional question is going to be this: has the NSA and FBI violated nearly every American's Fourth Amendment rights?

After all, it's been revealed that phone meta-data, for example, can be even more revealing than the content of an actual phone call, as such data can pinpoint a caller's location to the specific floor of the building in which one may be speaking and can be used to monitor one's movement and behavior.

Here's Marc Rotenberg of the Electronic Privacy Information Center:

American laws and American policy view the content of communications as the most private and the most valuable, but that is backwards today...The information associated with communications today is often more significant than the communications itself, and the people who do the data mining know that.

[...]

It is a bit of a fantasy to think that the government can seize so much information without implicating the Fourth Amendment interests of American citizens.

The fantasy the NYPD has been living in – that stop-and-frisk is not a violation of the Fourth Amendment – is about to come to an end.

The question will be whether or not this national, secret stop-and-frisk infrastructure which has been established by the security establishment in this country will suffer a similar fate, eventually.

Either that, or as American citizens, we will continue to have our private, digital data be stopped, frisked and released (or not) without our knowledge.



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Comment Preferences

  •  Tip Jar (35+ / 0-)

    "If the Jew who struggles for justice for Palestine is considered anti-Semitic, & if Palestinians seeking self-determination are so accused...then no oppositional move can take place w/o risking the accusation." - Judith Butler

    by David Harris Gershon on Sun Jun 09, 2013 at 11:37:35 AM PDT

    •  Cheers. (6+ / 0-)

      "If the Jew who struggles for justice for Palestine is considered anti-Semitic, & if Palestinians seeking self-determination are so accused...then no oppositional move can take place w/o risking the accusation." - Judith Butler

      by David Harris Gershon on Sun Jun 09, 2013 at 11:56:24 AM PDT

      [ Parent ]

    •  Unbelievable that anyone would defend this (18+ / 0-)

      The programs are secret, the data mined are secret, what's done with them is secret, and the extent of who's swept up in their dragnet is supposedly secret.  Except it seems to be all of us.  

      "Nobody's listening in on our calls," we're told, but people who haven't the first clue what's going on.  Because none of us have the first clue what's going on.  Doesn't matter in the least.  They know what floor of what building we're in, where we're going next, and everything traceable about our behavior.  We haven't even heard about facial recognition technology and how all the surveillance camera pictures are being stored, just in case we're not carrying the electronic bug our cell phones have turned out to be.  And they can listen to whatever key words or phrases trigger further attention, which we're not entitled to know anything about.

      There is no meaningful oversight of these programs, aside from a few reliable rubber stamps like the FISA court and Dianne Feinstein.  There is no disclosure of what's being done, why it is necessary, or what safeguards -- if any -- are truly in place.  All we're told is "Trust us," by people who lie through their teeth with every drawn breath whenever they come close to discussing these issues.  No thanks.

      Enough.  The bedwetting that's gone on since 9/11 has to stop.  As a nation we must find the courage to stand up to this and demand a stop to it, or we will lose that right and will have to learn to live on our knees.  Anybody comfortable with that is the enemy of our democracy, and should expect no courtesy or polite discussion.  They are dangerous.

      We have always been at war with al Qaeda.

      by Dallasdoc on Sun Jun 09, 2013 at 11:58:30 AM PDT

      [ Parent ]

  •  what minority is PRISM targeting? (5+ / 0-)
    Recommended by:
    Drocedus, corvo, doroma, jazzence, futurebird

    "I'm sculpting now. Landscapes mostly." ~ Yogi Bear

    by eXtina on Sun Jun 09, 2013 at 11:55:11 AM PDT

  •  And just when you thought the ... (2+ / 0-)
    Recommended by:
    doroma, futurebird

    ... hyperbole couldn't get any worse. Wow. To top it off, this is before knowing all the facts.

    I would tip you, but the man took away my tips.

    by Tortmaster on Sun Jun 09, 2013 at 11:55:25 AM PDT

  •  I have been stopped... (5+ / 0-)

    and had Identification demanded as well as being ordered to turn out my pockets and "asked" if I had any drugs in my backpack.  I didn't did I?  I was going to let him look in my backpack, wasn't I?  He'd hate to have to detain me while he called in...

    Of course, that was when I was homeless.  Homeless folks get their stuff searched a lot.  When they go into a shelter, walking down the street, if they look at a cop wrong...

    So, the good news is that this is a completely fair and unbiased searching of EVERYONE.  Everybody should be happy because it's not personal or profiling!  

    /snark

    I don't blame Christians. I blame Stupid. Which sadly is a much more popular religion these days.

    by detroitmechworks on Sun Jun 09, 2013 at 12:04:13 PM PDT

    •  These days in Atlanta (0+ / 0-)

      a suitcase or other bag containing everything a homeless person might own that's left behind a bush or other good hiding place is usually "detonated" for the safety of those people working downtown.
      Guys I know have taken to using big clear bags instead of the long sought after rolling suitcases just to keep their stuff safe from the bomb squad.

  •  How should a police officer... (0+ / 0-)

    deal with people when there is a reasonable suspicion they are engaged in illegal conduct? Get a warrant in every instance?

    And are the police, when they deal with people, allowed any means to protect themselves?

    And if they discriminate, then that can be remedied without making it wrong to stop and frisk at all.

    This current situation with data mining raises different issues which should be addressed, and to compare or see it in the context of stop and frisk, which happens between people on the street, seems strained.

    •  The point is that having a certain (7+ / 0-)

      skin trait is not reasonable suspicion.  And skin trait was the sole suspicion NYPD was using.

      He who would trade liberty for security deserves great customer service.

      by Publius2008 on Sun Jun 09, 2013 at 12:10:01 PM PDT

      [ Parent ]

      •  As I said, that is discrimination... (0+ / 0-)

        which can be remedied, but should that mean an officer needs a warrant to have any encounter?

        And if warrantless encounters are allowed, should the officer be permitted to take reasonable steps to protect him or herself and the public?

        In any event, the comparison between data mining and stop and frisk is a weak one in my view, even if each concerns the Fourth Amendment.

        •  It is also unreasonable search (6+ / 0-)

          ... based on completely unreasonable grounds, manifesting unwarranted exercise of government power, and defended on inadequate rationales by the high government officials ordering it.   Does that help clarify matters?  Or does a complete disregard for the Fourth Amendment not seem clear enough?

          We have always been at war with al Qaeda.

          by Dallasdoc on Sun Jun 09, 2013 at 12:18:56 PM PDT

          [ Parent ]

          •  Excuse me? (0+ / 0-)

            What is "it" in your subject? Stop and frisk or data mining?

            I said that the data mining is a separate issue. Why do you assume I am supporting it? Talk about a knee-jerk reaction.

            What exceptions are permissible under the Fourth Amendment, since you purport to know it so clearly?

            Can an officer stop and frisk? Is stop and frisk and data mining the same?

            •  Both (3+ / 0-)
              Recommended by:
              corvo, Alumbrados, JohnnyBoston

              I am citing some of the parallels btween the two.

              The exceptions permissible under the Fourth Amendment appear to have swallowed it up completely, if the NSA revelations are even remotely true.  And stop-and-frisk of every young minority male in New York City is not a "reasonable" search under any conceivable interpretation, except the abased rulings conservative courts prefer.  

              Targeted stop-and-frisk, or targeted data mining based on reasonable grounds are permissible under the Fourth Amendment.  But hoovering up all data, storing them in vast warehouses clearly overbuilt for catching terrorists, and doing everything in secret with no meaningful public oversight is not something the Fourth Amendment should ever be stretched to cover.  Justifying it is basically arguing, "You don't have anything to worry about if you haven't done anything wrong."  That is un-American.

              We have always been at war with al Qaeda.

              by Dallasdoc on Sun Jun 09, 2013 at 12:30:40 PM PDT

              [ Parent ]

              •  And not just stop-and-frisk. (3+ / 0-)
                Recommended by:
                nchristine, Dallasdoc, Alumbrados

                We can now extract DNA samples and keep them forever.

                Dogs from the street can have all the desirable qualities that one could want from pet dogs. Most adopted stray dogs are usually humble and exceptionally faithful to their owners as if they are grateful for this kindness. -- H.M. Bhumibol Adulyadej

                by corvo on Sun Jun 09, 2013 at 12:37:46 PM PDT

                [ Parent ]

              •  I do not think I said anything... (0+ / 0-)

                to the contrary, although I do not believe the parallels exist to the same extent, for the reasons I mentioned.

                One is blanket and indiscriminate, the other is individual and discriminate. Do you disagree?

                Of course, if "every" minority in NYC was subjected to stop and frisk, that would be an abuse. But you can see that some are saying that an officer should not have this power with regard to anyone, absent a warrant, and I believe it is unreasonable and impracticable.

                As to data mining, the facts should be revealed and a more protective policy adopted.

                •  If police are abusing their power (0+ / 0-)

                  ... then those abuses should be curtailed.  If some people are suggesting no stopping without a warrant, that is an over-reaction, but not worse than the over-reaction that is the current stop-and-frisk policy in NYC. Where the proper balance is between two extremes, and how to achieve it, is another debate entirely, and one which is long overdue in Bloomberg's New York.

                  Sounds like we agree on data mining, although the president and most people in charge of these programs evidently do not.  If only the Fourth Amendment had advocates with half the passion of the Second.

                  We have always been at war with al Qaeda.

                  by Dallasdoc on Sun Jun 09, 2013 at 12:49:07 PM PDT

                  [ Parent ]

                  •  I took this post to compare stop and frisk... (0+ / 0-)

                    to the data mining, and I did not agree that it fits, for the reasons mentioned.

                    If NYC discriminates, fix it. I thought the post implies that a warrant is always necessary to stop and frisk, and that was also why I commented.

                    •  I think the post pretty clearly argues (0+ / 0-)

                      ... that both are obvious violations of the Fourth Amendment, and makes the case that that amendment needs much more aggressive defense.

                      The motivations for Fourth Amendment abuses deserve mention, but it's the abuses themselves that are being compared here.

                      We have always been at war with al Qaeda.

                      by Dallasdoc on Sun Jun 09, 2013 at 01:16:11 PM PDT

                      [ Parent ]

              •  Don't forget sobriety road blocks. n/t (1+ / 0-)
                Recommended by:
                Dallasdoc

                Regulated capital serves the people, unregulated capital serves itself.

                by Alumbrados on Sun Jun 09, 2013 at 12:51:47 PM PDT

                [ Parent ]

        •  No, there is no reasonable suspicion for either (3+ / 0-)
          Recommended by:
          corvo, happymisanthropy, Dallasdoc

          and no govt. intrusion should take place.  The analogy is apt.

          He who would trade liberty for security deserves great customer service.

          by Publius2008 on Sun Jun 09, 2013 at 12:23:12 PM PDT

          [ Parent ]

          •  So a cop can only engage after the crime... (0+ / 0-)

            has occurred unless he first obtains a warrant?

            Are cops allowed to talk to people, or is that also an unreasonable search and seizure?

            •  Look who's making bad analogies now. (3+ / 0-)
              Recommended by:
              corvo, Alumbrados, Dallasdoc

              Searching privacy protected records without consent is the same as "talking to a person?"

              While a cop may talk to a citizen, absent reasonable suspicion of a crime, a citizen has no obligation to either sit and listen or respond-provide info of any kind.

              He who would trade liberty for security deserves great customer service.

              by Publius2008 on Sun Jun 09, 2013 at 12:34:54 PM PDT

              [ Parent ]

              •  I asked specifically about stop and frisk... (0+ / 0-)

                so please do not misrepresent with some silly put down remark.

                The whole point is that data mining and stop and frisk are different, and you just acknowledged the same.

                •  No reasonable suspicion, no search. (0+ / 0-)

                  Does that clarify it for you?

                  He who would trade liberty for security deserves great customer service.

                  by Publius2008 on Sun Jun 09, 2013 at 12:48:43 PM PDT

                  [ Parent ]

                  •  That was all you had to say... (0+ / 0-)

                    when I asked, rather than offer the put down.

                    I asked the question because the post said:

                    The fantasy the NYPD has been living in – that stop-and-frisk is not a violation of the Fourth Amendment – is about to come to an end.
                    This implies that ANY stop and frisk is impermissible.

                    This is why I believe the analogy falls flat and why I asked what means should replace stop and frisk.

  •  Well, if what they are saying is true (3+ / 0-)
    Recommended by:
    Hubbard Squash, corvo, Alumbrados

    and content is being stored, it's a little worse than stop and frisk.  But I think the analogy is good.

    He who would trade liberty for security deserves great customer service.

    by Publius2008 on Sun Jun 09, 2013 at 12:07:27 PM PDT

  •  Gathering all this information is incredibly easy (1+ / 0-)
    Recommended by:
    FG

    and very cheap to do.  The question is what to do with the data once you've got it.  How do you make sense of all that 'stuff'.  It's all basically a hit and miss operation on some one's ability to write an sql query against the various databases held by the feds.  They can randomly go against a credit card number, a telephone number, a state, a city, a country and hope to hit something.

    What all this data is good for is when they do have a target (political, economic, criminal, or anything else) is that they can get the information very fast without having to go to each individual company with accompanying warrants issued to each company.  They already have the data, so they only need one search warrant to go after a specific key data point that ties all the databases together.  How else do you think that the feds had so much information on the Boston bombers in less than 12 hours??  They ran to the court for a warrant, then wrote several queries against the databases to the specific data points.  The biggest issue they had was knowing what the names are for each column of the various databases.

    •  Gov't shouldn't gather the data in the first place (4+ / 0-)
      Recommended by:
      corvo, Alumbrados, Dallasdoc, JohnnyBoston

      4th Amendment means no dragnets.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Sun Jun 09, 2013 at 12:28:27 PM PDT

      [ Parent ]

      •  I'm not saying that they should be collecting it. (0+ / 0-)

        I'm just pointing out how easy it is to collect it and then having a clue, or not, as to what to do with it once they have it.  It is incredibly easy to go searching through all the data, if you have a clue what you're looking for.  I think the point of having all this data is to be able to specifically target an individual for political/economic/social purposes first, to search a specific individual when they show up on a radar, and then to randomly search for 'something' that is of 'interest' that day to whom ever is supervising that day.

        •  Sure; it's also easy to steal a candy bar (0+ / 0-)

          It's amazing the things one can do once one has discarded morality and law.

          Hence, the power of mob bosses. And our government.

          Government and laws are the agreement we all make to secure everyone's freedom.

          by Simplify on Sun Jun 09, 2013 at 01:31:14 PM PDT

          [ Parent ]

          •  I don't get where you think I'm happy about (0+ / 0-)

            the confirmation that our gov't is spying on us, something that has been at least suspected to have been going on for more than a decade now, or even agree with the gov't 'reasoning' for doing so.

            I'm actually glad that it has been confirmed and people are outraged at the behavior of the gov't.  I don't care which 'side' is doing the spying, or 'stop and search' crap, it's not something that should be legal in any sense of the word, never mind getting into the moral and ethical considerations.  I know what I have access to at the places I work.  I know I can make some powerful companies unhappy, not that what I know is illegal activity, just really sloppy controls (and I've saved off copies of the emails).  I've searched some company databases for the hell of it.  I know how to do it and what it would take to find out what I want to know about a given subject within a company.  With that knowledge, I have no trust in the gov't to not abuse the power they have.

            •  I think we're in agreement on everything (0+ / 0-)

              Sorry, I didn't mean my comments to imply anything about you personally—I should've been clearer.

              Government and laws are the agreement we all make to secure everyone's freedom.

              by Simplify on Sun Jun 09, 2013 at 02:36:41 PM PDT

              [ Parent ]

  •  Trust is gone (5+ / 0-)

    We only know about the security intrusions because of leaks.
    What else don't we know about?
    The secrets of our government increase as the privacy of the citizens erode.

    If cats could blog, they wouldn't

    by crystal eyes on Sun Jun 09, 2013 at 12:21:01 PM PDT

  •  Stop and Cavity Search (0+ / 0-)

    Stop and Background scatter X-ray Search..

    The real bad guys as well as the good guys are off the internet. Bin Laden as well as Arab Spring countries was and presumably still are using Sneakernet .

    I want 1 less Tiny Coffin, Why Don't You? Support The President's Gun Violence Plan.

    by JML9999 on Sun Jun 09, 2013 at 12:55:14 PM PDT

  •  Once upon a time, (0+ / 0-)

    a nice family found that they had inherited a large house in a bad neighborhood. Upon taking possession of their property, they quickly found that being surrounded by crooks and thieves made it difficult for them to be as open as friendly as they were in their old neighborhood. The eldest son was stabbed on his way home from school. The mother's car was vandalized on the street in front of the house. They were burglarized twice and shots were fired at the house one night. So the family did what they had to do. They put up a high fence around the house, bought a guard dog and a handgun. They were wary when they went out and never went out at night.

    The moral of the story is that the family became more like their neighbors. The neighbors didn't become more like them. Today we live in a world where many of our neighbors are unpleasant. They break in and steal from us. They do harm to our citizens or try to. Accordingly, we are becoming more like our neighbors. I am not saying this with any sense of approval, mind you, but it's worth remembering that the ability now of people and governments all over the world to reach across our borders is generating a predictable response that makes the 4th Amendment seem almost quaint.

    Voting is the means by which the public is distracted from the realities of power and its exercise.

    by Anne Elk on Sun Jun 09, 2013 at 01:04:31 PM PDT

    •  I'm sorry; who are the "crooks and thieves" (0+ / 0-)

      supposed to be in this analogy?

      (And not for nothing, but I'm pretty sure the British Empire was a bigger threat to early America than the terrorists are to current America.)

      "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

      by TealTerror on Sun Jun 09, 2013 at 01:35:42 PM PDT

      [ Parent ]

      •  Example: China (0+ / 0-)

        Another example: the mafia. You want me to go on?

        Voting is the means by which the public is distracted from the realities of power and its exercise.

        by Anne Elk on Sun Jun 09, 2013 at 01:56:32 PM PDT

        [ Parent ]

        •  I would, yes. (0+ / 0-)

          Powerful foreign countries and organized crime have existed for millennia, so I don't see why they now justify ditching privacy.

          "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

          by TealTerror on Sun Jun 09, 2013 at 02:30:54 PM PDT

          [ Parent ]

      •  And you're "pretty sure", are you? (0+ / 0-)

        Well, that reassures me heaps! The fact is that you don't really know. You just want to believe that's the case. I'm not saying I do either, but be careful about being "pretty sure" when you aren't in a position to be so.

        Voting is the means by which the public is distracted from the realities of power and its exercise.

        by Anne Elk on Sun Jun 09, 2013 at 02:06:17 PM PDT

        [ Parent ]

        •  It's a figure of speech. (0+ / 0-)

          The terrorists are nowhere near dangerous enough to be worth throwing away our basic liberties for. My certainty in that is higher than my certainty in most things I believe.

          "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

          by TealTerror on Sun Jun 09, 2013 at 02:31:39 PM PDT

          [ Parent ]

          •  There are threats beyond just terrorists (0+ / 0-)

            There are forces in the world that could shut off your power and water, make the banking system inoperable. These are threats that do not necessarily involve terrorists. You can tell me about your civil liberties when you are sitting in the dark with no water. Like it or not, we live in an increasingly uncertain world. What is it, do you think, that President Obama learned as President that convinced him to go down the path he has? What is it that has made members of Congressional committees sign off on this surveillance technology? Maybe the know something we don't.

            Voting is the means by which the public is distracted from the realities of power and its exercise.

            by Anne Elk on Sun Jun 09, 2013 at 02:46:04 PM PDT

            [ Parent ]

            •  "Maybe the know something we don't." (0+ / 0-)

              Perhaps. But trusting that those in power know what's best for me and are only looking out for my best interest, and so not questioning their actions, is the antithesis of being a democratic citizen.

              If there are such threats that justify this massive invasion of privacy, I want to know what they are. Absent that, I will never accept that they're necessary.

              Like it or not, we live in an increasingly uncertain world.
              No, we don't. This is a slogan with no relation to reality. We live in the most powerful nation that has ever existed. The average American has a far better life, and is far safer, than any average person who's ever existed. If our civil liberties really are being encroached more than they ever have been, "security" is not the reason.

              "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

              by TealTerror on Sun Jun 09, 2013 at 02:53:52 PM PDT

              [ Parent ]

  •  We need another Frank Church right now (0+ / 0-)

    to re-negotiate a new societal understanding between us, the people, and the national security establishment, particularly including the NSA.

    I wonder if Udall and Wyden are up for this?

  •  Wonder if OWS particpants ID'ed using these dbs. (1+ / 0-)
    Recommended by:
    nchristine

    The meta-data would be enough to identify everybody at the protests.  Don't need the contents of calls to round up names and locations.  

  •  Neither the Constitution, nor the amendments, (0+ / 0-)

    Guarantee anything. They are addressed to the AGENTS of government, outlining their obligations and duties. An afterthought, the initial ten amendments are anomalous in that they prohibit certain (presumably favored) actions, unless there is a good reason (national security?) to overlook the prohibitions or argue around them. The Cons argue that the security of the nation is a top priority and individual rights have to take a back seat. Then too, our agents of government have developed a liking for protection, as opposed to the more demanding "provide for the general welfare."  Securing the citizenry in their cages is easier than managing the environment and insuring that resources are available for subsequent generations.

    We organize governments to deliver services and prevent abuse.

    by hannah on Sun Jun 09, 2013 at 02:46:35 PM PDT

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