Bills Introduced by Congress Fail to Fix Unconstitutional NSA Spying

https://www.eff.org/deeplinks/2013/07/bills-fail-fix-unconstitutional-nsa-spying

by Libertatea • 13 years ago

168 52 13 years ago

motters• 13 years ago

Fixing American laws is a step in the right direction, but it doesn't make me as a non-American feel any more confident about using US-based internet services.

eli• 13 years ago

Are there any examples of countries that have the means to spy on other countries but choose not to?

EthanHeilman3• 13 years ago

The US between the years 1929-~1935. The closing of the American Black Chamber to the opening and secret executive permission for the military to break the law and steal communications for "training" purposes.

Jach• 13 years ago

Finland?[1] (I have no idea.)

[1]http://www.youtube.com/watch?v=uimh2EBB1yQ

rayiner5• 13 years ago

It shouldn't. Our laws aren't designed to protect you.

sanderjd• 13 years ago

This is true, but not the full story. Your parent specifically called out his lack confidence in U.S. companies, not in the U.S. government. While I agree that our laws shouldn't necessarily be designed to protect non-citizens, their design preferably shouldn't result in our companies losing access to foreign markets.

yuhong2• 13 years ago

I think a Constitutional Amendment should be considered too.

lukifer• 13 years ago

Would a bill to explicitly define the 4th to include data storage have sufficient force of law? Or would that violate separation of powers and get thrown out by SCOTUS?

At any rate, given the tepid reaction of Congress, I don't see an amendment happening anytime soon. Hell, at this point the ideological tribalism is so bad, I'm not sure they could agree on an amendment outlawing the kicking of puppies.

yuhong2• 13 years ago

I am thinking about defining foreign spying powers of the government.

avar• 13 years ago

Once you change the constitution it can't be thrown out be the SCOTUS by definition. They can interpret constitutional law or declare law unconstitutional, they can't blatantly ignore the constitution (well, in theory...).

In short, the facility to reverse supreme court decisions is a constitutional amendment.

rayiner5• 13 years ago

Would a bill to explicitly define the 4th to include data storage have sufficient force of law?

I don't think it would be a separation of powers problem in and of itself, but by virtue of separation of powers the judiciary wouldn't be bound to follow that interpretation.

s_q_b• 13 years ago

Congress can't change the scope of Constitutional rights, either to expand or narrow them. They could, however, simply outlaw the practice.

This all happened once before, with the Church Commission, and we were able to step back from the brink, using statutory rather than Constitutional fixes. Today, it seems we lack the political will to do so again.

mtgx• 13 years ago

Even the repealing of Citizens United as a Constitutional Amendment is having hard enough traction. With such low trust level in Congress (which means Congress is the most anti-citizens as ever), this is not a proper environment for introducing a Constitutional Amendment, anyway. Can you imagine what this "rogue" Congress would try to introduce in it (that's if they even accept to pass it).

Also, it's not needed. Why the hell can't we get the same type of strict restrictions for e-mail and online chat as for snail mail? Why?!

Those privacy laws for mail were not made based on the medium - paper - they were based on the principle of private communications. So why doesn't that apply to e-mail, too? The government is quick to say that copyright infringement online is just like stealing a car. So why isn't infringing on e-mail privacy just like infringing on snail mail privacy? And why doesn't e-mail get the same laws protecting it? That's what people need to ask their own representatives in Congress.

dantheman2• 13 years ago

That's because citizens united was actually a good ruling. People don't lose rights just by forming groups.

rayiner5• 13 years ago

It's silly to call this Congress a "rogue" Congress because of its low approval ratings. Nationwide, people still strongly approve of their elected representatives. They just hate the ones all the other people chose.

Zigurd• 13 years ago

Math is stronger than courts. If communications and storage are routinely encrypted, governments will have to focus on the truly high-value cases where planting and monitoring a bug is worthwhile.

dllthomas• 13 years ago

Math and courts are strong in slightly different domains, not always overlapping. A two-pronged approach is necessary.

bionerd• 13 years ago

This is great news but will it really force certain agencies and powerful circles to stop what they've been doing all this time in secret? And if not, what could?

snarfy• 13 years ago

If it's unconstitutional, we don't need new laws to fix it. The existing laws (the constitution) need to be enforced. It's a failure of the judiciary, not the legislative branch.

geekam• 13 years ago

It seems like a failure of legislative branch too. But I want to ask you what can be done if the judiciary branch fails or is corrupt?

comrade_ogilvy2• 13 years ago

Congress can very easily act to define the terms of the debate on these legal questions by defining "due process" (and similar factors). The courts are obliged to show reasonable deference to Congress.

Congress chooses not to, and that is implicit acceptance by the majority and minority leadership in both houses of Congress.

rayiner5• 13 years ago

You can't take it for granted that it is, in fact, unconstitutional, just because the EFF says so. The EFF has its interpretation of the 4th amendment, just like the ACLU. They take very expansive views of what those amendment means. Taking narrower views is not a "failure of the judiciary." It's disagreement over a document that can legitimately be interpreted in different ways.

comrade_ogilvy2• 13 years ago

Furthermore, what holds the Executive in check is the combined vigilance of Congress and the Judiciary.

The Judiciary must show reasonable deference to Congress when it comes to defining such things as "due process". If Congress chooses to create a due process in which it seems very easy for the Executive to get its way (e.g. the FISA court), on what legal basis is a sitting judge supposed to stand in the way? Unless it is completely obvious by existing legal precedent, a federal judge might rightly suppose it is the job of the Appellate and SCOTUS to define any new yardsticks.

FISA courts, PRISM, NSA, drone assassinations,... Congress holds in their hands the power to define the terms of the debate. That they choose not to is simply because the minority and majority leadership in both houses of Congress more greatly fear having to explain their own position to the American people, than they fear any particular arguable abuse by this president.

ihsw• 13 years ago

The problem is with qualifying violations. Current interpretations of 'spying' specify that violations don't occur until a human being queries the database, so technically 4th Amendment violations aren't occurring by the data being automatically stored and indexed by the NSA's vast data collection efforts.

There will also be fights about how 'public' data is, and there will be arguments about how anything shared on Facebook falls under the definition of 'public data.'

bobwaycott• 13 years ago

Enforcing the laws is the job of the Executive, not the Judicial, branch. The judiciary can only weigh in when a litigant with proper standing brings a case before the courts.

frou_dh• 13 years ago

No dice. They've taken the cellophane off of that gargantuan data centre, so it's too late to return it for a refund.

dragontamer3• 13 years ago

The crux of this article is that these Senators don't know how to fix the problem. That is far from correct.

Why? Senators Wyden and Udall are part of the Senate Intelligence Committee. They have full access to the secret discussions going on, and the practical implementation of them.

They are fully briefed on these issues, and hold clearances, as well as hold the power to investigate Top Secret America. Instead of assuming ignorance on Wyden and Udall's part... perhaps the EFF should be analyzing their proposals.

Vivtek6• 13 years ago

Instead of assuming ignorance, we should simply assume intent. But I think ignorance probably is sufficiently explanatory - access to snake oil sales pitches doesn't ensure informed decisions.

dragontamer3• 13 years ago

Wyden and Udall have been consistently against these programs damn near a decade, and have been trying to reform section 215 of the Patriot act the whole time. Wyden and Udall have not had to "change" their opinion before or after this controversy, they've been consistently against it the whole time.

Their reforms are the same that they've been pitching for many years, its just that no one has been listening. If you notice, they are the ones who are forcing the NSA to correct their public statements.

http://www.wyden.senate.gov/news/blog/post/wyden-and-udall-t...

They don't just listen to the NSA, they also correct the mistakes the NSA makes in public.

jlgaddis• 13 years ago

That is far from correct.

What about the three other bills that were introduced by Congress? The bill by Udall and Wyden is just one of four.

Daniel_Newby4• 13 years ago

This whole dispute is obsolete. Pretty soon the 3D printers will be cranking out isotope separators. Afterwards everyone will be part of a total surveillance society, by process of natural selection. We should consider this a practice run for learning how to build a transparent society that works.

drdaeman• 13 years ago

Decreeing that governments should not try to infiltrate their citizen's (and not only their) privacy is like decreeing that terrorists should not possess explosives. The point is, if they'd find a possibility to do that, they still will do whatever's in their interests.

IMHO, the only reasonable option is to embrace the inevitable and explicitly allow any wiretapping (on any level, for anyone just because they can - not only for TLAs and law enforcement; with a several year of grace period, so the everyone could prepare themselves) and force the world to secure their communications and not rely on promises that nobody would peek at them.

teeja• 13 years ago

We don't need to change the constitution. We need to insist that the 4th amendment be honored immediately. We are not at war.

There must be a full, open Congressional investigation (like Church) which pries open the so-called secret interpretation of the law (an idea which is utterly anti-American). We must subsequently have an informed discussion about how to do what needs doing to for real (not fear-driven) protection of citizens, while reversing the invasion of privacy clearly forbidden by the 4th, restoring explicit warrants backed by clear and unambiguous evidence.

This is a time to form a hard, hard line. If we do not at this time, then we should expect further dismantling of the Constitutional rights that millions of Americans have fought and lost their limbs for. I do not usually talk like this, but this is an extraordinary and dangerous time in our nation's history, one ripe for further abuse. Our Congresspeople need to recognize that their jobs are unquestionably on the line if they don't fix this situation.

Vivtek6• 13 years ago

I thought we agreed we're at war until people stop using terrorism. That's what the President told me, anyway.

Bills Introduced by Congress Fail to Fix Unconstitutional NSA Spying

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