Welcome to DU! The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards. Join the community: Create a free account Support DU (and get rid of ads!): Become a Star Member Latest Breaking News General Discussion The DU Lounge All Forums Issue Forums Culture Forums Alliance Forums Region Forums Support Forums Help & Search
 

Vattel

(9,289 posts)
Wed Jun 11, 2014, 10:47 PM Jun 2014

There are at least two things that the NSA does that should be ruled unconstitutional:

1) The bulk collection of phone metadata.

2) Examining the content of phone calls and emails of US citizens without a warrant or probable cause when citizens communicate with a non-citizen who is reasonably believed to be on foreign soil and is targeted for surveillance.

On the bright side, a federal judge has granted a preliminary injunction that has stopped the NSA from collecting the phone metadata of two plaintiffs in a lawsuit. In granting the injunction, that judge voiced the view that it is likely that the collection of phone metadata by the NSA is unconstitutional. Moreover, the judge did a great job distinguishing the NSA metadata program from Smith v Maryland.

Personally, I think that #2 is even more clearly unconstitutional. Obviously if the government has a warrant to wiretap a person and I talk to that person on the phone, that does not violate my fourth amendment rights. But the NSA doesn't need a warrant or probable cause to wiretap a non-citizen on foreign soil. So the warrant requirement is essentially negated by the NSA's Prism program.

How would SCOTUS rule on those two items? My guess is that Scalia, Ginsberg, Sotomayor and Kagan would agree with me, but Breyer, Roberts, Kennedy, Alito and Thomas would disagree. Alas, 5-4 against. We need more liberal judges.

18 replies = new reply since forum marked as read
Highlight: NoneDon't highlight anything 5 newestHighlight 5 most recent replies

Thinkingabout

(30,058 posts)
1. Where does the violation of the Constitution by collecting phone call data or examining the
Wed Jun 11, 2014, 10:54 PM
Jun 2014

contents of those records. If you say it is unconstitutional to collect the records then the providers are violating and has been violating the constitution for over 100 years.

Warpy

(111,126 posts)
4. No, there is a huge difference between a provider keeping records for billing purposes
Wed Jun 11, 2014, 11:12 PM
Jun 2014

and having the government keep them for fishing expeditions.

Get it? Private versus government. It's not a huge concept.

It's like bigots shooting their mouths off during sports games. They do that, they're off the air. "Wait!" you say, "What about their right to free speech?" Well, the government hasn't charged them with a crime. The advertisers and the broadcast company decided they didn't want to be identified with some bigot and cut him loose.

Get it? Private versus government. Again.

The problem with the NSA dragnet is that everything is being collected and stored, ready for the next McCarthy to come along and start a witch hunt. And if you don't think it can happen again, guess again. Listen to more of those teabagger ranters. Another McCarthy is already here, just waiting for something to catapult him behind a bank of microphones.

The violation of the constitution comes with the government eavesdropping on private citizens without any cause, probable or improbable.

The Fourth Amendment was passed to keep the government from going on snooping expeditions of any type. The NSA is in violation of it.

Thinkingabout

(30,058 posts)
17. Actually the judge ruled it was unconstutional without a warrant so your private
Thu Jun 12, 2014, 05:02 AM
Jun 2014

Versus government has not been ruled.

 

Aerows

(39,961 posts)
7. Don't be shocked
Wed Jun 11, 2014, 11:18 PM
Jun 2014

There are a handful on here that if the NSA came to their house and demanded a cavity search, they would bend over - or at least, they claim they would because "it's legal" "I have nothing to hide" and "cavity searches are nothing new".

 

Aerows

(39,961 posts)
11. Well, of course
Wed Jun 11, 2014, 11:25 PM
Jun 2014

Defense of the surveillance state was abhorred and soundly criticized before Jan. 20, 2009. I wonder why that is?

woo me with science

(32,139 posts)
2. There is so much unconstitutional these days that it's hard to keep up.
Wed Jun 11, 2014, 10:57 PM
Jun 2014

We are in a very ominous place in American history, with the infrastructure of fascism being built systematically around us by corporatists pretending to be Republicans and Democrats.


 

jberryhill

(62,444 posts)
3. On 2
Wed Jun 11, 2014, 11:08 PM
Jun 2014

Are you saying the person at the US end of the conversation knows that the person at the other end is not in the US?

Have people always assumed that international telephone calls weren't subject to any number of folks listening in?

I'm just wondering what the general assumption has been. Maybe I'm paranoid, but I thought international calls had been fair game for a long time.

 

jberryhill

(62,444 posts)
12. I spend about two months of the year outside the US
Wed Jun 11, 2014, 11:29 PM
Jun 2014

I don't know why you say that. In the last year I've been to Singapore, China, Argentina, the Czech Republic, Switzerland, France, the Cayman Islands, and I'll be in London next week.

What does that have to do with anything?

You do know the original reason for the National Radio Quiet Zone, right?

When GTE started building big satellite uplinks, the NSA would put big ears right next to them.

I've never assumed international telephone calls were by any means secure, and I don't know why the fact that I travel internationally a lot would change that assumption.

 

Vattel

(9,289 posts)
13. The police, FBI, etc. have never had the right to wiretap a US citizen
Thu Jun 12, 2014, 12:08 AM
Jun 2014

making an international call without a warrant. What is tricky about the case at hand is that the target of the NSA surveillance is the foreign person, and the content of the US person's communication is "incidental." There are rules requiring the collection of the US person's phone and email content being minimized and not disseminated and such, but the bottom line is that the NSA is listening to the US person's phone call or reading her email without any individualized warrant or probable cause. Indeed in some of these cases there may be no evidence of a crime at all, or even evidence of an intention to commit a crime.

 

jberryhill

(62,444 posts)
16. I never thought that law enforcement was
Thu Jun 12, 2014, 12:35 AM
Jun 2014

But it's been known for decades that the NSA has been listening to international calls for decades, and suspected long before then. Bamford's book was, what, 1980 or thereabouts?

The point was that it was not used for US law enforcement.

 

OnyxCollie

(9,958 posts)
6. Rule of four.
Wed Jun 11, 2014, 11:16 PM
Jun 2014

Four (or more) Justices weren't willing to review a previous domestic spying case. (It takes four Justices to agree to hear a case before it can be reviewed.)

Supreme Court Lets Stand Telecom Immunity In Wiretap Case
http://www.democraticunderground.com/?com=view_post&forum=1014&pid=260709
Source: Associated Press

WASHINGTON (AP) -- The Supreme Court is leaving in place a federal law that gives telecommunications companies legal immunity for helping the government with its email and telephone eavesdropping program.

The justices said Tuesday they will not review a court ruling that upheld the 2008 law against challenges brought by privacy and civil liberties advocates on behalf of the companies' customers. The companies include AT&T, Inc., Sprint Nextel Corp. and Verizon Communications Inc.

Lawsuits filed by the American Civil Liberties Union and Electronic Frontier Foundation accused the companies of violating the law and customers' privacy through collaboration with the National Security Agency on intelligence gathering.

Read more: http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_WARRANTLESS_WIRETAPPING?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2012-10-09-09-58-20

 

Aerows

(39,961 posts)
10. And then the NSA "lost" the data requested for the case made by the ACLU
Wed Jun 11, 2014, 11:24 PM
Jun 2014

claiming they can't stop a data purge because their systems are too complex.

I know, they can't gather data, can't stop it from being deleted, can't stop it from doing anything, but remember, they are keeping us safe.

They are the dumbest organization at plausible statements to defend themselves I've ever seen. It's like a police officer bashing a person in a wheelchair repeatedly while said person has their hands up, it's caught on tape, and the police officer defends it by saying "I wasn't there." They don't even go with "I don't recall".

 

Vattel

(9,289 posts)
14. I can see why they wouldn't want to review the telecom immunity case,
Thu Jun 12, 2014, 12:11 AM
Jun 2014

but I suspect that they will review the bulk collection of metadata at some point. I hope so anyways.

 

OnyxCollie

(9,958 posts)
15. My guess as to the Court's view on bulk collection of metadata
Thu Jun 12, 2014, 12:23 AM
Jun 2014

is to say that the signals intelligence is part of the executive branch's constitutional ability to wage war, and they'll punt.

 

Vattel

(9,289 posts)
18. Based on other decisions, I think Thomas holds that view.
Thu Jun 12, 2014, 07:56 AM
Jun 2014

But he is a Yoo follower. Scalia and Ginsburg and Sotomeyer would definitely reject that position. NSA wants to collect metadata even when we are not at war; so it shouldn't be that simple.

Latest Discussions»General Discussion»There are at least two th...