back to article Then there were four: Another draft US law on 'foreign' (aka domestic) mass spying emerges

The battle over a controversial US government spying program has intensified – with a fourth piece of legislation tackling the surveillance introduced to Congress on Friday. Somewhat confusingly, the latest proposed law – put forward by Senators Patrick Leahy (D-VT) and Mike Lee (R-UT) to the US Senate – is understood to be …

WTF?

What's the problem here?

Oh, I thought they'd subbed the work to the ISP's already!

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Gimp

Let's be clear. Senators and Con-gresspeople are ignoring the written Constitution.

Which I think I'm right in saying is the highest authority on what is "legal" in the US.

Which suggests it's time to consider wheather the Houses of Congress are still representative of the people or wheather or not wholesale change of the system itself is needed.

When lawmakers disrespect the Constitution isn't that where the Founding Fathers were expecting the people to take to the streets and exercise their rights under the 2nd Amendment?

Because it really does look like "the State" feels it needs these powers to protect itself from its citizens. IOW the people are the enemy.

Which was pretty much the attitude of the Communist Party of the USSR.

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Terminator

Re: Let's be clear. Senators and Con-gresspeople are ignoring the written Constitution.

> Which I think I'm right in saying is the highest authority on what is "legal" in the US.

Unfortunately the US Constitution isn't really that clear-cut on what constitutes unreasonable searches and seizures. Note the word unreasonable. That's a weasel-word. Someone has to decide what unreasonable really means. And that's when the circus starts. Everyone has their own definition of unreasonable, and everyone likes their own definition above all the others. Some definitions are more flexible than others.

To the average US person, it probably means they can't, and shouldn't be, spied on under Section 702. To NSA, FBI or DHS today, it means something entirely different. Prior to the USA PATRIOT Act of 2001 it meant something very different to NSA or FBI.

It doesn't help that the entire debate over privacy under Section 702 is often incoherent.

The erosion of the rights under the 4th Amendment started many decades ago. See Asset Forfeiture Laws where law enforcement can confiscate one's belongings without a warrant, based only on suspicion, and where the presumption of innocence principle is turned upside down. I don't hear much about Asset Forfeiture Laws - people don't seem as concerned about these.

I am very skeptical that meaningful change is coming to the interpretation or application of Section 702. It will probably be some watered-down bipartisan compromise [translation: we should make it look like we did something] that amounts to very little in reality.

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Re: Let's be clear. Senators and Con-gresspeople are ignoring the written Constitution.

Your point on "unreasonable" is why warrants need to be cleared by the court system, as opposed to the FBI, or others, making up the rules as they go along. Within the court system, despite all of its failings, using case law as precedence does establish the boundary for reasonable vs unreasonable. Given that Article III of the Constitution established the Judicial Branch, in the full context of the Constitution, it is clear.

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Re: Let's be clear. Senators and Con-gresspeople are ignoring the written Constitution.

> warrants need to be cleared by the court system

Warrants are being cleared by the court system. Specifically, by the FISA Court.

Some people don't like the way the FISA Court interprets unreasonable. Or they don't like the FISA Court. Or they don't like the way NSA or FBI interpret the Section 702 guidelines.

So, we're back to square one: what's unreasonable to Joe Average isn't necessarily unreasonable to the FISA Court, or to NSA.

See the article at The Guardian that deals specifically with this issue. 4th Amendment concerns have been consistently narrowed down by the SCOTUS, over several decades now.

The notion that in its current interpretation, and application, the 4th Amendment offers clear-cut protections against electronic mass surveillance, is not grounded in reality.

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Re: Let's be clear. Senators and Con-gresspeople are ignoring the written Constitution.

Asset forfeiture laws are primarily a fifth and fourteenth amendment issue. Somewhere between most and nearly all of the assets seized under civil forfeiture were found in the course of searches the owner permitted; those searches, accordingly, did not require a warrant. Their taking, with scarcely a hint of due process, plainly violates the clear language of the fifth and fourteenth amendments. Criminal asset forfeiture following the owner's guilty plea to or trial and conviction for criminal acts is an entirely different matter, in which the seized assets generally were found based on fourth amendment searches and connected by some evidence to the criminal acts. Even that, however, often overdone and abused.

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Re: Let's be clear. Senators and Con-gresspeople are ignoring the written Constitution.

> Asset forfeiture laws are primarily a fifth and fourteenth amendment issue

They may very well be 5th and 14th Amendment issues too, but they are very much a 4th Amendment issue. Also, it is not true that Asset Forfeitures occur only after a search warrant has been executed, or as the result of an admission. Neither a warrant, nor an admission of guilt are required.

This deals specifically with reasonable vs. unreasonable searches and seizures.

This - Yale University School of Law - deals specifically with the constitutionality of Asset Forfeitures under the 4th Amendment.

These are just two examples of very many studies on this topic. Most of them conclude that Asset Forfeitures violate the 4th Amendment. Yet, they are allowed.

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We will not spy on American citizens...

(We'll get some other government to do that from their taps, and then they'll just send it over).

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Why

Whatever the law says, the NSA and FBI will just 'reinterpret' it again.

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About?

When I AltaVista'd (look it up, youngsters) my not-very-common name back around the turn of the millennium, I found 4 others mentioned on the web. A bit later, I was contacted by a young lady looking for the "me" who had been her boyfriend while he was a sailor. I was also called by the irate father of a girl who was out past her curfew with "my" son ( was then childless). Does any mention of any of these folks sharing my name make me fair game as well?

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Anonymous Coward

Re: About?

Yeah, sorry about that, "Dad". I had to give her your address, otherwise she might have followed me home.

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Political theater

Just like the privacy shield. There's nothing that will prevent the three letter organizations to gather data about whatever they want. Writing the law one way or another is not going to change that.

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Pesky 14th amendment says

If you pass a law that protects US citizens from their government, then it will also protect non-citizens. There is no constitutional way to differentiate between the two.

Either you have spies, or you don't. There is no such thing as a tame spy.

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Re: Pesky 14th amendment says

I do not see anything like that in the fourteenth amendment. That one, basically, prohibits states from doing what the national government is is not allowed to do with respect to citizens. The discussion in this case is necessarily rooted in the fourth amendment, which speaks of "the people," which rightly has been taken to include non-citizens within the United States. A number of other amendments also do not distinguish citizens from noncitizens. These include all the other amendments that comprise the Bill of Rights.

The fourth amendment, as another poster noted, does not define "unreasonable searches," which has led to a good deal of litigation over the last two and a quarter centuries and doubtless will continue to do so.

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