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It seems to me that the fundamental issue in the debates about government data collection is the question of the rights to privacy that US citizens can expect. Our notions about privacy change somewhat over time and in the context of different places.

I grew up in a small town in Alabama in the 1950s. Everybody gossiped about everybody else all of the time. The telephone system was the old fashion kind where you cranked the phone to get the operator who would connect your call. If you asked for Mary Smith she'd tell you that she wasn't home. She was over at Myrtle Jones playing bridge and she'd ring over there. Everybody knew that she listened in on calls all the time. Privacy there meant people having enough manners not to say things to your face that they said behind your back. Later I spent 25 years living in San Francisco. In a complex and diverse urban environment privacy had very different meanings.

The technology that made it possible for Miss Pitts to listen in on Mrs. Smith and Mrs. Jones also made it possible for J. Edgar Hoover to snoop on lots of people. Today communications technology changes so rapidly that few people can completely keep up with it. With all the conveniences that it brings us, it also brings threats and compromises to our personal privacy.

I has been said that as soon as two people know something it ceases to be a secret. We made decisions about divulging private information all the time. Sometimes we make choices that we later regret, but we think of it as information over which we should have personal control. When other people become privy to our information without our consent, most of us become uncomfortable about that.

The internet collects more and more information about our personal lives. Not only do we leave a trail about our searches and purchases, but out smartphones track our movements with precise detail. Social Media sites like Facebook attempt to create an atmosphere of cozy intimacy that makes it feel a lot more private than it actually is. There are reasons to worry about what private internet companies are doing with the data trail we leave behind. We generally have checked a box consenting to a privacy policy when we signed up. Does anybody actually read those?

Now we are becoming increasingly more aware of the involvement of government agencies in accessing and collecting this data. We didn't check a consent form for the NSA. Many people seem convinced that they are clear about what constitutional rights they have to privacy. They usually base their views exclusively on the 4th amendment to the US constitution. The matter is really not that simple. This is a useful legal summary from the University of Missouri at Kansas City.

The Right of Privacy  The Issue:  Does the Constitution protect the right of privacy?  If so, what aspects of privacy receive protection?

The U. S. Constitution contains no express right to privacy.  The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information.  In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people."  The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.
The site gives a basic review of case law in the area. If the judicial conservatives who want to limit the constitution's reach to the strict intentions of the original framers had their way, we would be an advanced industrial society trying to live with a legal system suited to the frontier. Case law is the system by which the courts have adapted to application of constitutional law to changing times and circumstances. It is continually changing and subject to judicial interpretation.

There is a body of case law dealing with telephone conversations. Certain rights to privacy in the absence of a court issued warrant have been established. In other areas such as meta data the courts have held that the information is not private. The Patriot Act attempted to apply the legal standards developed around telephones to the internet across the board. There are various reasons why this is probably not a good idea. One of them is that meta data in internet communications works differently than it does in traditional telephone networks.

President Obama's contention is that the programs being carried out by the NSA are both legal and constitutional. Such judicial reviews of them as have been done have been carried out by the secret FISC. Unlike other court decisions, the public has no access to them. It is possible that a majority of SCOTUS might eventually declare the operations to be legally sound. It is not possible to know what they would do with any great certainty. So far they have avoided dealing with the issue. However, that does not mean that the law has to be that way. Congress has the power to change it.

What is needed is a discussion and debate on how we can best live with modern technology. There isn't a clear and simple guarantee to privacy in the constitution. Even if there were it, like other civil rights, has to be balanced against other public concerns. It is a subject that we have allowed to be swept under the rug. The internet isn't going away. In fact its reach into our lives is becoming ever more pervasive with the development of things like smart energy networks.    

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Comment Preferences

  •  unenumerated rights is the new critical terrain (14+ / 0-)

    (since Griswold) including the current issues combining 9th & 10th Amendments

    In addition, the Ninth Amendment states that the "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people."  The meaning of the Ninth Amendment is elusive, but some persons (including Justice Goldberg in his Griswold concurrence) have interpreted the Ninth Amendment as justification for broadly reading the Bill of Rights to protect privacy in ways not specifically provided in the first eight amendments.

    Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013

    by annieli on Sun Aug 11, 2013 at 03:23:28 PM PDT

    •  The article I linked to (14+ / 0-)

      indicates that use of the 9th has had very little traction. The Griswold concurring opinion is one of the few instances of it. As a concurring opinion it didn't establish judicial precedent.

      Greenwald is a follower of the doctrine of natural law. That is a useful perspective for discussions on morality, but it doesn't get very far in most courts.

      •  indeed but in reproductive rights it's pivotal /nt (5+ / 0-)

        Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013

        by annieli on Sun Aug 11, 2013 at 03:31:41 PM PDT

        [ Parent ]

      •  As fun as it is to debate the tired old issue (10+ / 0-)

        of privacy and the Constitution, it's really not relevant here.

        In the case of government surveillance, the 4th Amendment is most sufficient, and utterly unambiguous.

        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.
        It might be important to note, though certainly unnecessary, that recognition of the right against unreasonable searches and seizures was not new to the Founders or the Bill of Rights. It had a long history in English law.

        That history is important too, for it is rooted not in the protection of your right to privacy, but in limits on the power of the state.

        Anyone thinking about the significance of the NSA seizing our private communications would do well to understand Entick v Carrington.

        It began when Lord Halifax sent his goons to search and seize the papers of writer John Entick, who was critical of the Crown. Entick sued and won, establishing in British common law the right that would become our 4th Amendment.

        The 4th Amendment wasn't just about your right to personal privacy. It was about power. Specifically, it was about the inherent threat of tyranny in allowing the state to your thoughts, ideas and communications.

        Yes, new technology has broadened the definition of "persons, houses, papers, and effects". But the only people who assert that phone calls and emails, what web pages we download to our computers, and records of who we associate with, should not fall under protection of the 4th are the enemies of freedom or fools.

      •  It's about mandatory "fine print" on all accounts (3+ / 0-)
        Recommended by:
        kharma, GreenMother, J M F

        that provides blanket permission to share &

        it's about dossiers--the compendium of various permissions all consolidated. For example, TRW, employment history, rental history, mortgage history, buying habits, travel abroad--all in one entity's hands to patchwork a profile.

         

        Separation of Church and State AND Corporation

        by Einsteinia on Sun Aug 11, 2013 at 09:55:17 PM PDT

        [ Parent ]

        •  You speak of user agreements (2+ / 0-)
          Recommended by:
          Richard Lyon, Einsteinia

          Which is relevant, but that would not consent to waiving Constitutional rights unless specifically stated given the fact (a) the government is a 3rd party to the agreement and (b) the right are legally inherent except a defined by due process case law and regulations.

          In practice, of course, the far greater disclosure and sharing of personal data is in the commercial domain, so you are right about that.

          400ppm : what about my daughter's future?

          by koNko on Sun Aug 11, 2013 at 11:49:02 PM PDT

          [ Parent ]

          •  Is it possible for a contract to force or coerce (1+ / 0-)
            Recommended by:
            Einsteinia

            an American citizen to waive those rights?

            That seems to make the rights of the citizen up for sale and awfully vulnerable to bad faith practices, which all of the Snowden revelations have uncovered.

            Those tech companies that gave over their encryption keys, or that wrote code with NSA backdoors inside, and then gave us terms that didn't illuminate those issues, they were bad faith players in the contract between user and provider.

            So how is that, even by government standards anything but entrapment to begin with? How is it that such contracts have any legal standing, since the user was not [intentionally] fully informed of the terms upon signing/agreement?

            And I don't believe that any agency or corporation should have the power to deprive a person of their civil rights by contract, especially if it's discovered later, that said agency or corporation is breaking the laws of this land.

            Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

            by GreenMother on Mon Aug 12, 2013 at 06:09:12 AM PDT

            [ Parent ]

  •  I still come away with the idea (15+ / 0-)

    that there is a lot of concern at the government level (Obama is NOT 'the government" - just one employee) of how to wipe out any 'privacy" as well as hamper free sharing of information - free as in "unfettered" (not as in "free of charge, as some want to suggest i mean) - because the unfettered sharing of accurate information is POWER.

    How can that be squelched without ruining the net for online commerce? - that is the question for those sorts. Our capitalist government wants to have it both ways and risks tossing the baby out with the bathwater

    I suppose there may be a time in the very distant future when a government would no longer be oppressive about this stuff, when it would recognize and protect rights to privacy as well as safeguard the unfettered from of Human Information, which is an evolutionary issue.

    I think capitalist concerns truly complicate what should be almost a "no-brainer' of a conversation.

    And yes, I think capitalists milk the fear of 'terrorism" heinously for profit and for over-riding our Constitutional protections to stifle dissent, organization, and to make a buck.

    •  I don't think that a Luddite (18+ / 0-)

      approach to eliminating the technology is a solution. I think that our best historical precedent is the Church committee of the 1970s that gave us FISA to begin with. It came about because of strong political pressure to curb the excesses of government abuse. What it produced was more than just window dressing.

      That of course was in the context of the 60's political climate. Today we live in a much more passive society. Action by the people is the only way to control the government.

      •  Sad to say, I shudder to think what a (2+ / 0-)
        Recommended by:
        truong son traveler, koNko

        Church committee might look like today, given the current residents in Congress...

        To be free and just depends on us. Victor Hugo.

        by dizzydean on Sun Aug 11, 2013 at 09:21:29 PM PDT

        [ Parent ]

      •  The luddite behavior will not be a permanent nor (0+ / 0-)

        all encompassing solution for 99 percent of the people. BUT we can limit our interactions, to make a financial and political statement to the powers that be. And we can limit our use of these devices and technology, to limit their current supply of information.

        Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

        by GreenMother on Mon Aug 12, 2013 at 06:11:54 AM PDT

        [ Parent ]

    •  Well, there's a little kink (7+ / 0-)

      in the Constitutional line drawn here when you throw in "capitalist concerns" as defined and defended by "capitalists." All that the U.S. Constitution requires is that congress "shall make no laws" that by their nature abrogate any of the enumerated and adjudicated rights therein.

      Corporations are not congress, and are not constrained by the Constitution in the making and enforcing of their own laws, bylaws and/or rules. Apart from those few areas of law the SCOTUS has specifically interpreted TO apply to those doing business with the public. i.e., Denny's Restaurants can't discriminate in hiring and compensation/benefits against, say, brown people versus white people, but it can make drug testing, a certain credit score, background checks, polygraphs, etc. conditions of employment.

      Government is as bad as corporations for hyping fear of terrorism for profit, however "profit" is defined in their minds/culture. Sometimes it's money, sometimes it's power.

      •  I will admit I do NOT understand "power". (3+ / 0-)
        Recommended by:
        Joieau, marina, Kevskos

        I am an honest and simple man.

      •  And we need a Bill of Rights to protect us from (3+ / 0-)
        Recommended by:
        Joieau, Kevskos, GreenMother

        corporations.

        •  They already gave us one. (0+ / 0-)

          Caveat emptor

          [Let the buyer beware]

          •  I'm talking about, for example (8+ / 0-)

            all the corporations making people turn over Facebook ID's, drug testing for everything, tracking eveything we do online to send us "targetd ads' as if it is a service to us and so forth.

            THis is gross, but suppose the only way to 'drug test" was a stool sample - how many Americans are going to regularly submit something like that to get or keep a job? Or maybe "DNA" samples, a la Gattaca - suppose we had to regularly give blood samples so they could track our DNA?

            Corporations invade every part of our lives and there appears to be no brakes on it. Full speed ahead.

            That's what I mean.

            They should not be able to do ANY of the stuff they do, no matter that people are now used to it.

            •  Down the road (2+ / 0-)
              Recommended by:
              lotlizard, xxdr zombiexx

              Biometiric data acquisition will be so much simplified with sensors that the potential for abuse really boggles the mind.

              Already, face recognition software has been deployed in public places on a fairly massive scale since it only needs a camera feed.

              Within the next couple of years, fingerprint sensors will become commonplace on smartphones raising the issue of the use and security of this data, and the covert collection of it (when a camera can acquire the data, the function can be embedded in numerous places people touch.

              Other bio sensors developed for medical application will find use to obtain biometrics immediately and can also be deployed covertly.

              This is not paranoid conspiracy theory, it is fact.

              For those of us in the tech sector developing devices, this is becoming a hot area of development and a hot issue of debate when it comes to how tools can be used and abused, and by whom.

              For example, Google Glass raises a lot of questions about privacy, security and data use. When you blog the issue on a general audience blog like Daily Kos, you get lots of people thinking you are a paranoid CT nut or just against technology. When you discuss this on certain tech blogs, you get deep discussions because people grasp the power and danger involved; exciting, but scary.

              It's not just about the "etiquette" of someone filming you while you take a piss, as Google would have you believe.

              It gets down to the rights of others, what users do with the data, how it gets stored and ultimately, how it gets used and abused by intended, authorized or unauthorized parties.

              But don't worry folks because "Do no evil". Everything will be OK.

              400ppm : what about my daughter's future?

              by koNko on Mon Aug 12, 2013 at 12:08:40 AM PDT

              [ Parent ]

              •  That is a really fundamental issue. (0+ / 0-)

                We simply cannot where all this is leading and it is moving rapidly.

              •  Be that as it may, I get tired of worrying about (0+ / 0-)

                constant surveillance by big brother, little brother and corporate brother.

                It's too fucking much. And yes, etiquette is a good place to start. This is the wild west out there. And people feel totally comfortable abusing these powers or allowing the abuse of these powers, until it happens to them.

                Americans need to unwind a bit from their personal beliefs in "moral" superiority and take on a live and let live mentality for starters.

                And they need to demand that be codified, so that the kind of shaming and ostracism that can happen now, are avoided, except in the most extreme cases of obvious law breaking.

                The government needs to just back off entirely. They have way overstepped their boundaries, on behalf of corporations at our expense. The lack of transparency is only the tip of that iceberg. It also shows an abuse of tax dollars, while defunding programs we need like planned parenthood and the space program, and other medical and scientific advancements--such as sustainable energy and agriculture that won't poison us all to death or kill our ecosystems from the ground up.

                Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

                by GreenMother on Mon Aug 12, 2013 at 06:18:57 AM PDT

                [ Parent ]

                •  I think the role of government is important (0+ / 0-)

                  It needs more transparency because it has over stepped the bounds and is operating without consent of the governed; it needs to adapt to globalization in a multitude of respects; and it needs to regulate to protect the rights of people, not to mortgage those rights in the name of security that returns more profits to the MIIC than value to citizens.

                  And people need to adapt to, particularly in their expectations of government.

                  400ppm : what about my daughter's future?

                  by koNko on Mon Aug 12, 2013 at 09:28:33 PM PDT

                  [ Parent ]

        •  We need an amendment that creates a wall of (0+ / 0-)

          separation between corporation and state.

          Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

          by GreenMother on Mon Aug 12, 2013 at 06:13:03 AM PDT

          [ Parent ]

  •  An inportant aspect is secrecy. (16+ / 0-)

    See 'Secrets' by Joan McCarter,
    http://www.dailykos.com/...

    An often overlooked aspect of this mess is we will never know how many 'other ' system admins outside of Snowden  who have access and the ability to tap this data there are, or if they may have already used that ability nefariously to deal in financial markets or other outright fraud against the public.  This needs to be addressed.

    Be the change you want to see in the world. -Gandhi

    by DRo on Sun Aug 11, 2013 at 03:41:03 PM PDT

  •  Yes, I believe the Constitution protects... (2+ / 0-)
    Recommended by:
    KJG52, truong son traveler

    ...the rights to privacy.

    It's a subcategory of the right to life.  

    A right to life is the right to enjoy life without trampling on the rights of others.  If your privacy is violated, your enjoyment of life can be damaged by having embarrassing information opened up and spread, or put you and loved ones in danger.

    Warren/3-D Print of Warren in 2016!

    by dov12348 on Sun Aug 11, 2013 at 03:43:39 PM PDT

    •  Where do you see a right to life (2+ / 0-)
      Recommended by:
      indubitably, duhban

      in the constitution?

      •  The right to life, liberty and property. (3+ / 0-)

        The 5th and 14th amendments.

        Warren/3-D Print of Warren in 2016!

        by dov12348 on Sun Aug 11, 2013 at 04:00:33 PM PDT

        [ Parent ]

      •  btw, there's no right to not have Authorities (0+ / 0-)

        burst into your home every two hours, asleep or awake, and tickle you with feathers; nor to spit on you.

        Your reference to the 9th Amendment would allow a whole range of Rights which would be illuminated by the "do unto others" principle of ordinary moral life.

        The "enumeration of certain rights" in the Bill of Rights "shall not be construed to deny or disparage other rights retained by the people."


        Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

        by Jim P on Sun Aug 11, 2013 at 08:04:58 PM PDT

        [ Parent ]

        •  According to Mr. Obama (2+ / 0-)
          Recommended by:
          lotlizard, Jim P

          The US can be trusted will all the information in the world because it's a good and trustworthy player; it is other countries and non-state actors that cannot be trusted, so the US must have all the data to track them and execute preemptive cyber or drone attacks when justified to protect the world.

          I'm not making this up. Read the White Paper and speech transcripts.

          As a non-US citizen and non-US resident, I officially have no rights and may be considered fair game for any of this.

          As it turns out, it's a brilliant strategy to use against Chinese people since there are so many of us and so few names, so if you identify a bad guy of whatever name, you can then justify attacking millions.

          For example, my surname 高, ranked No. 18, is shared by more than 10 million people. 王, the most common by more than 90 million people. Even by exact name, if you take the most common male (张伟, 290,000 people) or female  王芳, 260,000 people) you can justify, by NSA reasoning, to target pretty much our entire population.

          Fortunately, my given name is not so common, so finally I appreciate the torture my parents subjected me to could save me.

          So American reasoning is very clever on this: in case drones hit the wrong million people, they can say, to paraphrase Stalin, "2 王 don't make a right, but 1,000,000 is just a statistic".

          Unfortunately for the Chinese military, there are just so many "John Doe" in the USA and too dispersed to be of much tactical use.

          400ppm : what about my daughter's future?

          by koNko on Mon Aug 12, 2013 at 12:37:51 AM PDT

          [ Parent ]

    •  Of course any time you as a citizen put... (1+ / 0-)
      Recommended by:
      indubitably

      ...anything on the internet you should lose the right to privacy of that.

      There is ersatz privacy - e.g., social security numbers you give to your bank. But in the end you should know hackers could get to it.

      Warren/3-D Print of Warren in 2016!

      by dov12348 on Sun Aug 11, 2013 at 03:48:48 PM PDT

      [ Parent ]

      •  You kids get off my lawn! n/t (1+ / 0-)
        Recommended by:
        dov12348

        I want to see Snowden get a fair trial, an impartial jury, and the same sentence James Clapper gets for lying to Congress.

        by happymisanthropy on Sun Aug 11, 2013 at 04:36:33 PM PDT

        [ Parent ]

      •  Nope. Just because I'm communicating (2+ / 0-)
        Recommended by:
        Kevskos, GreenMother

        with electricity rather than paper doesn't mean I stop being a human being with say over my intentions.

        I don't see why "electricity" permits anyone to poke their nose into my life. We've been trained to call what business does "tracking" and what government does "surveillance" and "security" but in the real world, someone following you everywhere and noting everything about you would be called a Stalker.

        That's the right name for the activity. The others are just spin and propaganda. Perception management.

        You can get restraining orders against stalkers. But because it's business -- and we get no pay for our contribution to the business, btw --  their lawyers and their dependent politicians have said "It's OK to Stalk someone if you can make money on it."

        The laws could be written differently. There's nothing intrinsic in nature about legalized Stalking.


        Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

        by Jim P on Sun Aug 11, 2013 at 08:11:27 PM PDT

        [ Parent ]

        •  The new infrastructure makes it very difficult (1+ / 0-)
          Recommended by:
          Jim P

          for most people to avoid having to use cell phones, the internet, or VOIP as communication. There are precious few pay phones left out there, or land lines.

          No one said when the internet started, that this would happen as a matter of course. It was a risk with hackers, but there were no warnings from the founders of Apple or the BBS boards saying--whatever you say, can and will be used against you to deny you a job, to make you the subject of public ridicule or otherwise a walking target of hate or retaliation.

          That's like saying, because our transportation infrastructure is all highways and based on fossil fuels, that we all deserve to live in polluted areas, and have to submit to oil companies.

          And by her reasoning, since the Government keeps all it's crap online, doesn't that mean if we hack into it, all's fair in love and war? The government should have to then go back to paper, in order to prevent the obvious from happening.

          Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

          by GreenMother on Mon Aug 12, 2013 at 06:28:08 AM PDT

          [ Parent ]

  •  The Constitution Also Gives Corporations a Private (12+ / 0-)

    freedom to own the mainstream public square of our era and operate it in their interests. That makes it hard for the people to have a rational discussion and debate about anything in which corporations have interests.

    Talk about running an industrial society under a frontier concept.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Sun Aug 11, 2013 at 03:51:38 PM PDT

    •  Wrong on that. The FEC fails to regulate (3+ / 0-)
      Recommended by:
      dizzydean, Kevskos, lotlizard

      it properly. Has since the days of the first radio networks in the days when Coolidge said "the business of America is business."

      The FEC could just as easily, under the Constitution, rule that 1 company can own 1 outlet in 1 market, end of story. Anti-trust laws on the books could have the same effect were they enforced. And Congress could always pass laws.

      The idea that the Constitution is outdated is not true. What's happened is that we live in a time of rare, if not unparalleled, corruption among public officials where a House Leader says "we could defend the Constitution if it were worth it" and not immediately lose her position.


      Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

      by Jim P on Sun Aug 11, 2013 at 08:17:39 PM PDT

      [ Parent ]

      •  Yep. Time was, the FCC, FTC, etc. had some teeth. (0+ / 0-)

        And the Federal Reserve and its policies operated not just to make rich folk richer, but also to hold down inflation while maintaining close-to-full employment.

        The Dutch kids' chorus Kinderen voor Kinderen wishes all the world's children freedom from hunger, ignorance, and war. ☮ ♥ ☺

        by lotlizard on Mon Aug 12, 2013 at 03:08:17 AM PDT

        [ Parent ]

  •  I'm with kossack Dumbo on this one. (23+ / 0-)

    In today's diary he states:

    [E]ven if it [the NSA's current data collection regime] is totally, solidly, unimpeachably consistent with every article of the constitution, it's still unacceptable and, even if it should be proven constitutional, that merely shows that our constitution is too weak to stand up to the abuse of its spirit we inflict upon it.
    Unlike other modern democracies which rewrite or, at least, review and reaffirm their constitution every x years, we struggle along with a governing document which is essentially dead. The mechanism for updating it presents a nigh on unscalable bar, as evidenced by the fact that it's only been amended 17 times in two and a quarter centuries (after the initial 10 amendments).

    So, in order to maintain the fiction that this governing document is still relevant to the exigencies of the modern age, we interpret and re-interpret and re-re-interpret it in the form of "case law." Case law, at the SCOTUS level, is what nine individuals divine to have been the intentions of the founding fathers hundreds of years ago. This divination is unarguably corrupted by the ideological blinders of the diviners.

    Think about it. Instead of having a supreme court tasked with an impartial reading of the most recently written (or affirmed) constitution, in order to rule on inevitable inconsistencies or matters left not fully addressed, WE have a court that decides (presumably by observing how pubic hairs float in the soda can) how a bunch of guys felt about AR-15s and digital data storage back in the 18th century.

    The privacy protection of our digital data is entrusted to Booz, Allen, Hamilton, et al, and the President would have us believe, "Nothing to see here. Move along." FFS, these are the guys who hired and vetted Eric Snowden!

    by WisePiper on Sun Aug 11, 2013 at 04:35:15 PM PDT

    •  I strongly agree with you. (12+ / 0-)

      When is comes to the second amendment, I honestly don't know what that means in today's context. I think that with privacy writing an up to date amendment that addresses it clearly and directly would be by far the best approach. Getting that past would require a political climate that was demanding it strongly.

      •  I've become convinced that the single (9+ / 0-)

        most important next amendment would be one that amends the amendment process.

        Traditionally, it has been argued that the inherent difficulty in amending the constitution has been vital to maintaining stability and shielding us from the pendulum whims of current popular opinion at any given time.

        While that imperative is, in my view, valid. There's such a thing as TOO high a bar. I feel that the degree of difficulty serves primarily to protect the vested interests of the powers-that-be.

        A carefully revamped amendment process could go a long way toward transforming our constitution into a living document, suited to defining acceptable behavior in an ever changing world.

        The privacy protection of our digital data is entrusted to Booz, Allen, Hamilton, et al, and the President would have us believe, "Nothing to see here. Move along." FFS, these are the guys who hired and vetted Eric Snowden!

        by WisePiper on Sun Aug 11, 2013 at 04:48:14 PM PDT

        [ Parent ]

        •  Lest anyone raise an eyebrow over (6+ / 0-)

          "defining acceptable behavior," I'm referring to the government's behavior, as it fulfills its mandated task of ensuring the security and the general welfare of the populace.

          The privacy protection of our digital data is entrusted to Booz, Allen, Hamilton, et al, and the President would have us believe, "Nothing to see here. Move along." FFS, these are the guys who hired and vetted Eric Snowden!

          by WisePiper on Sun Aug 11, 2013 at 04:59:12 PM PDT

          [ Parent ]

          •  I'm afraid we have reached (5+ / 0-)

            a point where we need to honestly ask ourselves (and those in power) exactly whose "security" and "general welfare" the government exists to ensure.

            Because I'm not getting the feeling lately that it's We the People anymore (if it ever was).

            •  That much is obvious simply by reading the (0+ / 0-)

              Patriot Act. The State Official's Guide to Critical Infrastructure makes it very clear, who is protected, and it isn't the individual citizen. It's the corporations deemed critical infrastructure. Many of which are also big campaign contributers.

              Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

              by GreenMother on Mon Aug 12, 2013 at 06:32:43 AM PDT

              [ Parent ]

          •  Careful with that ax Eugene--making that easier (0+ / 0-)

            could have lots of unintended effects on other issues such as women's rights. I mean look what happened to the voting rights issue?

            Lets make our government do it's freaken job before we mess with all the dials.

            Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

            by GreenMother on Mon Aug 12, 2013 at 06:31:23 AM PDT

            [ Parent ]

        •  I think that one thing that makes Americans (12+ / 0-)

          want to treat the constitution like the tablets handed to Moses is the myth that we are leading the world to democratic nirvana.

          •  While other countries appear committed (6+ / 0-)

            to continuing forward along that path, they can but shake their heads with amusement (and alarm) as we Americans veer off on a tangent and flounder in the weeds.

            The privacy protection of our digital data is entrusted to Booz, Allen, Hamilton, et al, and the President would have us believe, "Nothing to see here. Move along." FFS, these are the guys who hired and vetted Eric Snowden!

            by WisePiper on Sun Aug 11, 2013 at 05:10:17 PM PDT

            [ Parent ]

          •  But with Moses' rules writ on stone tablets, (2+ / 0-)
            Recommended by:
            Richard Lyon, koNko

            we regularly fail to observe the sabbath; we take the Lord's name in vain; we don't honor our parents:  we lie and we lust after our neighbor's spouse.... And that's all before noon on a Sunday.

            So the tablets are both immutable and yet disregarded by contemporary society, even by many of the finest Christians around.

            So except as symbols to be fought about, they've kind of become irrelevant to American society.

            Is that the future (or even the current status) of the rules writ so beautifully on parchment too?  

            I think the problem is that many Americans don't understand that capitalism is not equal to democracy. Or they don't care, as long as they can worship at the altar of Gucci, BMW,  Dolce and Gabbana, Apple, Rolex, etc.

            © grover


            So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

            by grover on Sun Aug 11, 2013 at 07:34:45 PM PDT

            [ Parent ]

            •  That's because religion, especially organized (0+ / 0-)

              religion is inherently political. So claiming adherence for political gain, or at least in order to not be harassed or otherwise punished, is a convenient method of pretending to conform.

              The other is that America is not necessarily a Christian or even an Abrahamic country. There are many faiths here, that cannot and will not abide the First law of Moses, which is to place no other gods before YHWH. And if you have read the Old Testament, you would know that the Ten Commandments are simply a small, basic part of a very large complex set of laws, some of which would be in direct violation of our own laws here and now.

              Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

              by GreenMother on Mon Aug 12, 2013 at 06:35:58 AM PDT

              [ Parent ]

          •  I think that also applies to any reform effort (4+ / 0-)
            Recommended by:
            Richard Lyon, WisePiper, Kevskos, koNko

            as to my mind it would be better to just write a new constitution. One that makes more then 2 parties viable.

            In the time that I have been given, I am what I am
            Shop Kos Katalogue
            Der Weg ist das Ziel

            by duhban on Sun Aug 11, 2013 at 07:56:32 PM PDT

            [ Parent ]

            •  When the short lived Occupy (4+ / 0-)
              Recommended by:
              duhban, WisePiper, Kevskos, koNko

              movement was bubbling there was talk of calling a constitutional convention as a way to bypass the amendment process. That has potential pitfalls of various kinds, but it is interesting to think about.

              Most of the things that have been done to lock up things for the two major parties have been accomplished at the state level such as the winner take all in the electoral vote. Nebraska I believe is an exception.

              •  I just simply think our consitution is dated (0+ / 0-)

                no other government really has functioned as long as ours has (you could argue the UK but even theirs has been so radically changed that not really).

                But I accept that people are generally unwilling to challenge the status quo.

                In the time that I have been given, I am what I am
                Shop Kos Katalogue
                Der Weg ist das Ziel

                by duhban on Sun Aug 11, 2013 at 08:10:24 PM PDT

                [ Parent ]

    •  Yes, I agree with you. (5+ / 0-)

      And I find myself agreeing with Dumbo a lot these days, which I seem to never have in the past.

      What a strange strange world we live in, eh?  

      I know these ideas are radical, and yet completely logical. Many citizens are happy to get rid of the post office as an obsolete  (if nostalgic) institution (just ask them). But other remnants of times gone by we cling to like they are sacrosanct.

      Thanks for your comment.

      (And thanks, Richard, for a thoughtful flame-free diary.)

      © grover


      So if you get hit by a bus tonight, would you be satisfied with how you spent today, your last day on earth? Live like tomorrow is never guaranteed, because it's not. -- Me.

      by grover on Sun Aug 11, 2013 at 05:09:23 PM PDT

      [ Parent ]

      •  It may be, though that the post office will be one (0+ / 0-)

        of the ways we can still communicate with some semblance of privacy.

        Then there is no excuse that someone lifted their electronic skirt by putting it online somewhere [even if only on a "private" email, and therefore invited everyone implicitly to have a peak at the contents.

        Gentlemen, congratulations. You're everything we've come to expect from years of government training (Zed, MIB).

        by GreenMother on Mon Aug 12, 2013 at 06:38:40 AM PDT

        [ Parent ]

    •  I don't precisely agree with you (2+ / 0-)
      Recommended by:
      WisePiper, Kevskos

      but I will reccomend this comment because it makes the argument in the way I had wished it would have been made from the start.

      In the time that I have been given, I am what I am
      Shop Kos Katalogue
      Der Weg ist das Ziel

      by duhban on Sun Aug 11, 2013 at 07:42:21 PM PDT

      [ Parent ]

  •  A few thoughts (10+ / 0-)

    (1) When President Obama says he knows the current acts to be constitutional, he's either being dishonest or doesn't understand the way we test the constitutionality of laws. Since I believe understands how laws are tested, his statement is complete b.s.

    (2) Ultimately, as we have discussed, this is a technology issue. The fact is that the Constitution needs an amendment regarding privacy and a few other issues (e.g., the definition of corporations as individuals should be eliminated). This is the one sure way to address this because once you get into case law, the issue is subject to judicial philosophies,  posturing related to appointments, and many of things that will circumvent the will of the people. We need something like the idea found in Europe and in Brazil that say that privacy rights are basic fundamental rights. We have been trying to fit a circle into a square peg (or however the saying goes). meaning the tech issue is a problem because we don't have laws to appropriately address change. Probable cause is about the best we have, and its not very good.

    (3) The technology is only going to get more intrusive. Take personalize medicine. part of that is information technology revolutions happening in health care delivery. HITECH was meant to address some of that, but it really only addresses private breaches, not government access to records. Nor does it address government action. That technology will grow a lot over the next decade with people's medical records going online.  In fact, just about every critical aspect of their lives, whether they want it on line or not, will be online. There is no avoiding this. Americans need to be made aware of this reality. Right now, i sense that they think they can avoid it or that its not that big deal. Most of their economic lives could change now at a whim.

    •  Re: #1 (3+ / 0-)
      Recommended by:
      Joieau, Kevskos, GreenMother

      I was being Niiiiice. :)

      The rest I completely agree with.

    •  so long as you keep insisting that you (0+ / 0-)

      know the mind of someone else you're going to go no where.

      Either you can prove point 1 or not but frankly if you can not then expect the arguments to continue because I for one grow tired of the smears and slander.

      So you have a choice either put aside what you 'know' and try be nice (as Richard put it) or continue to fight.

      Your decision.

      In the time that I have been given, I am what I am
      Shop Kos Katalogue
      Der Weg ist das Ziel

      by duhban on Sun Aug 11, 2013 at 07:47:47 PM PDT

      [ Parent ]

      •  Your rebuttal is a straw man (3+ / 0-)

        (1) He made a statement that is objectively provable as true or false.

        (2) The facts show the statement under the circumstances to be false regarding the constitutionality because the question is an open one since the interpretation of the statute has never been tested in the courts (and no FiSA does not count). Nor has it been known until recently to the legislative body that passed the language. There's been no way to test it because, in fact, its been secret.  To argue that it is legal, under the factual circumstances and with an understanding of the checks and balances involved in determining the constitutionality of laws in the U.S., which as  lawyer, like me, he would know is a false statement. The correct answer is that we don't know if its Constitutional. Saying its "legal" means nothing until judicial review. This is civics 101 by the way. The President alone doesn't determine whether laws are legal. In fact, the President believes this because he has said as much with issues like DOMA.

        (3) Therefore, if he believes the statement to be true, he's being ignorant of the judicial review process, and if he doesn't but is saying  it anyway, he's being dishonest about the scrutiny that the policies have received under the judicial review process.

        The only choice that I didn't list is the one where he truly believes its legal, and is basing it on that belief. That gets you back to the same issue Ignorance. Sincere belief that a law is legal doesn't make it so. So, we are once again left with the two choices.

        Neither choice requires I know anything about what's inside his mind, and to claim otherwise, is a straw man.

        •  bullshit (0+ / 0-)

          You are entitled to your opinion on the matter but at the same time I am entitled to my opinions. For example that GG is a glory hand or that Snowden is at best blind and at worst lying.

          Now while I think those important points I am willing to put them aside to have a conversation on other matters.

          If you are not just say so.

          In the time that I have been given, I am what I am
          Shop Kos Katalogue
          Der Weg ist das Ziel

          by duhban on Sun Aug 11, 2013 at 10:34:51 PM PDT

          [ Parent ]

          •  You aren't discussing a matter of opinions (2+ / 0-)

            And I am not interested in talking to you. I wanted others to understand why your previous statement is false as far as how our system works. I imagine they know, but its never hurts to remind them that of the absurdity of where we are that even principles that have been accepted since Marbury v. Madison are now considered "bullshit"

            •  actually yes we are (0+ / 0-)

              you've offered nothing factual about point 1 and in point of reality driven objective fact you don't have anything factual to offer. Case law is against you, court decesions are against you and yet you still are 'rah rah Obama sucks'.

              But please keep going though I think it funny.

              In the time that I have been given, I am what I am
              Shop Kos Katalogue
              Der Weg ist das Ziel

              by duhban on Mon Aug 12, 2013 at 12:39:32 PM PDT

              [ Parent ]

          •  Still a give which keeps on giving... (2+ / 0-)
            Recommended by:
            koNko, DeadHead
            That's so fucking outrageously dumb and gobsmackingly achingly strawmannishly derpy at the same time that I think even Andrew Sullivan circa 2002 might not posted it to try and sneer silence out of people.

            Bravo. D-Man. You make Andy Dick look like Whitey Bulger.

            In lieu of your being pathologically incapable of convincing people to agree to put on that fucking ballcap for a team, right or fucking wrong, with you and your posse of pissants instead of making up their own minds, you think you will be a force of intimidation. I get it. It's your schtick. Well, my. How scary you are. Like rancid mayo is frightful to an aircraft carrier. What with your sneering and searing intellectual wit that wouldn't get you out of the shallow end of the kiddie pool or an old Yahoo message board comment thread.

            Duh? Can I call you Duh, this is why I almost never respond to you or your little comments. It's like trying to have a conversation with a passing fart rising up from a nearby table at Denny's. It's gas. It smells bad for a second, and then fades away until the next fart. Also gas.

            I mean, Jesus H. Christmas Holy Bean on Toast....

             

            bullshit

              You are entitled to your opinion on the matter but at the same time I am entitled to my opinions. For example that GG is a glory hand or that Snowden is at best blind and at worst lying.

            Did that sound smart in your head? Did it?

            I bet it did.

            I bet you think every time you have one of these little gnats of a thought, that somewhere Michael Moore is crying.

            I bet you mouthed the words as you typed that shit, and then hit post with a anti-humble pie-eating grin worthy of Dick Cheney unexpectedly walking into a baby kicking contest.

            All cappers are knee cappers compared to that.

            If you are going to get your holier-than-thou smarter-than-thou Kathleen Parker meets Joe Lieberman at the corner of Harold Ford and Lanny Davis on, at least capitalize the G in 'God' to drive that motherfucker's Very Serious Seriousness home.

            You call that a withering and intimidating broadside?

            So scathing that people's hair will winnow white in terror at the mere thought of raising your seething ire?

            I'm never going to believe that your various and varied liberal frenemies online are the main reason that bad things happen to people and institutions that you like unless you go for the gusto with this kind of thing.

            Your little sneering thine enemies into fearful silence routine doesn't work if you aren't Algonquin Round Table intimidating.

            Look at what you wrote.

             

            bullshit

              You are entitled to your opinion on the matter but at the same time I am entitled to my opinions. For example that GG is a glory hand or that Snowden is at best blind and at worst lying.

            Wowsers. Remind me never to cross you. I hate having to hose roadkill off of my undercarriage.

            If you were six, I wouldn't put that on the fridge next to the yellow and orange crayon blob with 'DOG' written over the top of it so mommy and daddy know that it was supposed to be Fluffy.

            You make 'Two and a Half Men' seem like early Mamet.

            The M. Night Shyamalan hook in your story is that you have a coherent point.

            For future reference... yawn.

            You are about as intellectually intimidating as Chris Farley. Like, now. Dig him up and that is about you on the brought low into silence scale.

            I'm not in one of your little Rox vs. Sux circle jerks of a circle, I don't give a shit about putting Edward Snowden on a stamp or up on a cross, I come to neither praise or damn people you love or love to hate, so play with your own snot as a response to somebody else's comment you smugly mediocre little nugget of nada with a homemade hall monitor's sash.

            Next time I'll be unkind.

            I am a Loco-Foco. I am from the Elizabeth Warren wing of the Democratic Party.

            Paraphrased from LeftHandedMan on Sun Jul 14, 2013 at 10:13:13 PM PDT

            'If you want to be a hero, well just follow me.' - J. Lennon

            by Clive all hat no horse Rodeo on Mon Aug 12, 2013 at 12:25:36 AM PDT

            [ Parent ]

      •  To provide clarification (1+ / 0-)

        Neither choice, together, means I need to know what's in his mind

        In fact, that's why I provided the two choices. Either are possible. I don't pretend to ultimately know, but I do think that a guy who is a lawyer and one who taught Constitutional Law would be aware that his lawyer's interpretation of the law is not the same thing as an act being legal. hence why I leave that way,b ut ultimately it doesn't matter because either way is not good for the country that he's making such absurd statements about legality in the first place.

  •  awesome diary, recced and (3+ / 0-)
    Recommended by:
    Richard Lyon, raptavio, dizzydean

    if I could I'd rec it again.

    This is exactly the discussion we need to have. I hope this is the start of a trend.

    In the time that I have been given, I am what I am
    Shop Kos Katalogue
    Der Weg ist das Ziel

    by duhban on Sun Aug 11, 2013 at 07:40:21 PM PDT

  •  Technology is beside the point. The Founders' day (2+ / 0-)
    Recommended by:
    Kevskos, GreenMother

    you had paper and speaking, and that's it, if you wanted to communicate something or work out something.

    The reason "papers and effects" and the Press were protected was because educated Americans knew the history of England the previous centuries. How the government could just grab your communications (paper and words spoken to others), use it as evidence to declare you a traitor, and then kill you in gruesome ways.

    Which. as you might imagine, put a crimp on free speech, and thus a self-monitoring and self-improving nation.

    The fact that we've got electricity now doesn't change the concern of the Founders one whit.

    In this day, where citizens are routinely called "consumers" even in the Halls of Congress, we've been bamboozled by lawyerisms and hair-splitting to overlook the entire purpose of the Bill of Rights.

    That purpose: limiting the reach of government into our lives, has never gone away, nor can it go away as long as mortals with power can go insane.

    =======
    A separate point: if you left your home and someone watched you leave, followed you to your conveyance, followed you in the stores you went into and where you met someone (also with someone following them),

    and then, even when you were alone they'd want to know what things you like, what entertainment gets your attention, what your buying habits are,

    well, you'd call that someone "a stalker." And whether it's business or government, I don't think we should be stalked. If a business wants to use my personal habits as a way to make money, then sign a contract with me and pay me every time you use me to make money for yourself.

    The Stalking, all of it, has to end.


    Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

    by Jim P on Sun Aug 11, 2013 at 07:57:29 PM PDT

  •  Well done, Mr. Lyon. (4+ / 0-)
    Recommended by:
    dizzydean, duhban, koNko, Richard Lyon

    I've been trying to say this for some time.

    We've blithely given up enormous measures of our privacy on the Internet for years now -- Facebook, Google, and third-party tracking cookie vendors have been harvesting our data efficiently for a while. All our call data has been collected by the big cell phone providers too. This information has typically been used for marketing purposes, but without legal protections, we have no expectation of privacy.

    The only real solution is legislative. I would suggest EU models would be a good starting point, where there are greater personal protections for this type of data.

    It can be fun to be outraged at our government for how it uses the data we've already given away, and some of that outrage might well be justified, but ultimately it's not going to solve anything without new legal protections in place.

    "Much of movement conservatism is a con and the base is the marks." -- Chris Hayes

    by raptavio on Sun Aug 11, 2013 at 08:58:38 PM PDT

  •  Thanks for this...see this article from JURIST (1+ / 0-)
    Recommended by:
    koNko

    on the options.  I'd love to have a serious conversation among all viewpoints on DK about the legislation already proposed and what ought to be proposed to maybe get us more in line with the EU.

    To be free and just depends on us. Victor Hugo.

    by dizzydean on Sun Aug 11, 2013 at 09:16:44 PM PDT

  •  Essay in The Economist: America against democracy (0+ / 0-)
    Yet I remember when [President] Obama announced this:
    My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.
    That would have been some real democracy-promotion, right here in the homeland. What happened? Is it naive to think Mr Obama really believed this stuff? I'll admit, with some embarrassment, that I'd thought he did believe it. But this "commitment" has been so thoroughly forsaken one is forced to consider whether it was ever sincere. It has been so thoroughly forsaken one wonders whether to laugh or cry. What kind of message are we sending about the viability these democratic ideals—about openness, transparency, public participation, public collaboration? How hollow must American exhortations to democracy sound to foreign ears? Mr Snowden may be responsible for having exposed this hypocrisy, for having betrayed the thug omertà at the heart of America's domestic democracy-suppression programme, but the hypocrisy is America's. I'd very much like to know what led Mr Obama to change his mind, to conclude that America is not after all safe for democracy, though I know he's not about to tell us. The matter is settled. It has been decided, and not by us. We can't handle the truth.
    http://www.economist.com/...

    The Dutch kids' chorus Kinderen voor Kinderen wishes all the world's children freedom from hunger, ignorance, and war. ☮ ♥ ☺

    by lotlizard on Mon Aug 12, 2013 at 03:54:12 AM PDT

  •  The 1% wants everything (0+ / 0-)

    and we are letting them. While we fiddle, the place burns.

    I didn't abandon the fight, I abandoned the Party that abandoned the fight...

    by Jazzenterprises on Mon Aug 12, 2013 at 06:07:10 AM PDT

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