> Personally, I think it is disingenuous to suggest that the standard to which we hold our foreign intelligence services should have anything to do with the tax strategy of the service providers whose infrastructure it is that they are violating.
I bring up taxes not to suggest some sort of tit-for-tat, but to make a point about jurisdiction. Income earned by American corporations operating abroad is not taxed by the U.S. because those operations are outside of American territorial jurisdiction. But being outside American territorial jurisdiction also has other implications beyond taxes.
> Even if there were some John Yoo style memorandum finding this legal under some perverted legal construction
I don't know if the construction would have to be all that perverted. The Constitutional balance between Congress and the President is different inside the U.S. versus outside the U.S., by design. While it's clear that American citizens retain their Constitutional rights abroad, it's also clear that the executive branch has far greater leeway and discretion when acting abroad.
What exactly did the NSA do here that's illegal? The most obvious thing might be violation of the Wiretap Act. But that's an act of Congress. Acts of Congress are presumed to only apply domestically, and the courts that have considered the issue have found the Wiretap Act to have purely domestic application. That's entirely consistent with the Constitutional scheme of Congress being a primarily domestic institution. For similar reasons, courts have rejected attempts by environmental groups to sue the U.S. Army under the environmental laws for pollution on foreign military bases.
The next thing might be some sort of trespass to private property. But trespass is state law and that certainly doesn't apply extra-territorially. I don't know, maybe there is an international common law of trespass, but I'm not aware of anything like that.
Finally, Google and Yahoo might have a Bivens claim directly under the Constitution, say for a 4th amendment violation. Off-hand, I can't think of any reason such a claim wouldn't work, and if I were Google and Yahoo I might bring such a claim just to make a point. But a Bivens action isn't criminal, it's a civil suit for damages arising out of a Constitutional violation.
> Would you not be outraged if an equivalent tool was used on US targets by a non-US government?
As a targeted investigation of an individual (which is what this would be used for)? No.
> Anyway, why would you be fine with such tools being used on non-US targets?
Because I literally cannot envision a world where the incentives mean state actors are not going to be doing this. You can legislate it away, or make moralistic announcements, but unless you actually remove the incentive, it will happen. If it's happening, I want my government to have at least the average level of proficiency.
The difference with domestic spying is that based on our laws, ethos, type of government and the fact that the people doing the spying are also citizens means that there are some powerful counter-incentives along with the incentives to spy domestically. That at least gives it a chance to be curtailed in some ways. Foreign spying really doesn't have the same counter-incentives.
> I think that would be news to the rest of the world since it's likely illegal in most of it.
The specific details of the NSA's (or any foreign intelligence service of any nation) intelligence gathering would be news, but the fact the NSA (or any foreign intelligence service of any nation) actually gathers intelligence outside of its home nation, quite often in violation of the laws of the places from which the intelligence is gathered, really isn't news.
I mean, that's the whole point of foreign intelligence services.
>
It's also simply bad business. It puts all US internet companies at a huge starting disadvantage against internet companies in countries which don't force private organizations to silently spy for their national militaries by default.
Sure, assuming that the US is the only country that would be involved in such activity.
> Personally, the "we only spy on non-Americans!" bit bothers me because my wife is permanent resident, not a US citizen. Should I be concerned about the distinction? What privacy is she afforded?
She's treated the same as a US citizen would be. The law covers US persons, which include green card holders.
I'm not saying the whole NSA/PRISM story isn't concerning. Just that the idea of limiting the NSA's(and, presumably, other agencies) surveillance on foreign individuals who are specifically under investigation (whatever that means, the OP wasn't specific) is a non sequitur idea that finds no meaningful support in our constitution.
> My suspicion is that this is a particularly USAian myopia, which does not bode well for the NSA.
I am telling you literally like it is. Whether or not you want the Fourth Amendment to apply outside of the U.S. (keeping in mind that amendment is the only part of U.S. constitutional law restricting electronic surveillance by the U.S. government anywhere in the world), the fact is that legally speaking it doesn't. I'm not telling you how the world should be here, I'm telling you how it actually is.
This is not specific to the U.S. though. Does Germany have constitutional laws forbidding them to collect intelligence from networks in France?
> Virtually every crime is enforced only at a policy level.
No. This is not the case.
Take some of the records (Skype for example) that the NSA had to contact companies with judges signatures to get. This is enforced by a separation of powers.
I'm not sure you addressed the main point, or admitted that in the reports they disclosed that the NSA did have direct full takes of the data (which you had been arguing against).
> It's not suspicion-less - it's done to answer specific questions
This is a false dichotomy. You can try to answer specific questions without suspicion of guilt. This is what is happening. They are answering specific questions, but they don't have suspicion of guilt.
An alternative is to get a warrant on the 'known terrorists' (which in practice is used very rarely for 'terrorist' and very often for other interests) and see directly who they have been contacting without having to see that I called my my babysitter and you called your attorney in the meantime. I mean, if that's all they were doing and that's all they needed, this would be a solution. (It's not all they are doing.)
> I'm personally comfortable with the information collected being used for exactly that purpose, and nothing else
You may want to look into what else is being done with the records. Phone and otherwise.
> I'm taking issue with cherry picking quotes to make your point.
But you didn't. I suggest rereading your comment.
> This isn't law enforcement, it's foreign intelligence.
It's foreign intelligence that is collecting vast swaths of information on American people. This information can be used to investigate Americans without going through normal investigative channels. It is law enforcement, though you can mince words. If you prefer we can call it foreign intelligence so long as we remind ourselves that it is principally different than how foreign intelligence is supposed to work in the United States.
> There's nothing in the PCLOB report that says that. The report makes it pretty clear that the whole three hop process pertains to phone records.
Perhaps I've confused PCLOB revealed information with the technical information revealed in Snowden documents then? I fear we'll need to drag out technical documents to resolve this specific dispute. But even if you don't take the other networks into account three hops is still huge, especially with a large number of targets. It is gross overcollection without selectors.
> It's inaccurate because he states that the NSA can hand attorney-client communications over to federal prosecutors, when the document he's citing says the exact opposite.
Perhaps he should have said attorneys? Were it destined for prosecutors, the intelligence will make its way to prosecutors later (when and if there is a trial).
> How could it be parallel construction if the person is already indicted?
Because parallel construction can be done to collect evidence and because the gathered intelligence can be used in the indictment of other targets - and here the source of the intelligence used to do this remains undisclosed. And because communications (as written below) contain records from before an indictment, which will contain lots of information useful to get an indictment and lots of useful information to a prosecution after an indictment.
Also we should note that the NSA only marks attorney-client communications a no-go after there has been an indictment: attorney-client communications are a confidential and privileged communication whether you are on trial, expect to be indicted, or are talking to your attorney about what you should do to avoid legal trouble because of what your peers are engaged in.
> if the purpose was to feed intelligence to US law enforcement by circumventing client-attorney privilege, why would they put in those additional restrictions?
If we grant that 'the purpose was to...' then the answer is: to comply with - or to appear to comply with - the law of the land in the most minimal way.
But we should be careful. The question of whether something is used for a purpose is a separate one than what it was designed for. If there is opportunity and there is motive there will be cases.
> What in the world makes you think that you would be aware of any success whatsoever of intelligence gathering in the Middle East? What makes you think that the situation couldn't have gotten much worse that it did?
To the extent that the expanded sigint is used for actual defense, it's trivial to expect more data to have helped (at least marginally) with the national defense aims of the agency. This is not controversial and somewhat trivial to point out.
The issue is that the NSA's behavior violated the 4th amendment rights of millions of people. You suggest that the ends justify the means. I respect that opinion and may even agree with it, but that doesn't matter.
What matters is that the law was broken in the creation of the domestic surveillance program and nobody is currently serving time in prison for breaking it.
The bill of rights exists because of very hard earned lessons about the appropriate relationship between the people and the government. We let a handful of officials ignore the 4th amendment and steal billions of dollars in taxpayer dollars to build the infrastructure to do so.
This is not just a major violation of rights but a major financial crime. The program should be cancelled, the officials responsible jailed, and the equipment auctioned off so that the proceeds can be returned to taxpayers.
Many of our rights as citizens give criminals and innocent people various protections against law enforcement. This is not a design flaw.
> It makes sense that US Intelligence is spying on foreign entities -- that's their job.
By your own standards the NSA by isn't doing their job, as they have been shown to be spying on US entities.[1]
> Foreign entities are not protected by the US constitution and are not covered by the Fourth Amendment and have no right to privacy from the NSA, CIA, etc.
The strongest justification, IMHO, for limiting spying to clear, identifiable enemies of the state that represent real threats - as opposed to blanket, dragnet surveillance of everyone, everywhere - does not come from the Constitution. The strongest argument comes from the basic principle that hypocrisy is bad, and we shouldn't engage in it on a personal or social or governmental level. By surveilling everybody, we lose the moral high ground on which to stand when criticizing the various dictatorships, tyrannies, and theocracies around the world that engage in massive surveillance in order to maintain their power. In short as the world's supreme military power, we owe it to the rest of humanity to do the right thing, act like adults and set a good example. Right now the NSA and the rest of the intelligence community makes our government look like a pack of lying hypocrites.
> Are you saying the NSA is spying even on traffic that never goes near the USA? That would be one of the biggest claims so far.
Foreign signals intelligence is the whole point of the NSA [1]. The only reason their spying on domestic traffic is controversial is that, unlike purely foreign traffic, there is a history of abuse of surveillance for domestic political purpose which has produced both laws imposing limits on and public expectations of restraint with regard to domestic surveillance.
So, no, the NSA spying on purely foreign traffic with no domestic nexus wouldn't be "one of the biggest claims so far", it would be exactly what the NSA exists to do and a non-issue.
It would be news if the NSA wasn't spying on purely foreign traffic, not if it was.
[1] From http://www.nsa.gov/ : "The NSA/CSS core missions are to protect U.S. national security systems and to produce foreign signals intelligence information."
>I think if we're going to do extensive foreign SIGINT --- and, sorry, we just are going to do that --- we should at least firewall it off from domestic law enforcement
A personal question, sorry: legality and constitutionality aside, are you comfortable with ample surveillance of other countries? If so, why? From your posts on HN since the PRISM leaks, you've stressed NSA's mandate to spy on other countries. NSA exists and has this function, yes, but why is it acceptable for the US to spy on all foreigners?
> I can't stop the local government from looking at my data if it wants to. I can stop the US government from looking at it.
I doubt that.
US government intelligence gathering within the US is being reported on right now and controversial because their are strong expectations and at least some legal restrictions that suggest that such surveillance is exceptional.
But if you think keeping your data overseas means that the foreign intelligence gathering apparatus of the US government isn't going to get at it, then you may have failed to think things through clearly.
Not under the US Constitution which is what governs the NSA. That has been one of the main features of government throughout history. They put their own people's rights above the rights of foreigners. EDIT: And doing the opposite will generally be viewed as treason.
I am honestly not aware of anything that was revealed that would violate any international treaty the US agreed to, but will definitely listen if you have examples. I also have a hard time believing that any other country with the capability to do the type of international spying the US does wouldn't do the exact same thing (or isn't already).
> I wonder how it is that the NSA hasn't already enabled that
On paper, at least, the NSA technically isn't allowed to act on US soil or against US persons. The FBI would be the most likely vector for such a political police action, imho.
> And we all know how well that worked out. What's your point? The NSA is currently not doing it's job.
AFAICT the NSA analysts have been operating under the assumption that they are following the law as written and interpreted by the Courts (Supreme and FISC), and handling incidental abuses that they discover via the same types of procedures (albeit more strict) used in other branches of government.
The fact that the lawyers and courts happen to disagree on your personal interpretation of the law and Constitution doesn't mean they weren't trying to follow it.
And however bad their actions are, there's no telling how bad it will get when you introduce profit motive.
> I believe NSA foreign collection generally happens for reasons that most people in the US support - tracking terrorist networks and counterproliferation.
> I would have a problem with evidence that the NSA was [...] monitoring foreign commercial communications to tip off domestic industry
> There are still some legal restraints on US agencies and military conducting signals intelligence within the United States.
That is likely a fantasy. The NSA is a military organization. And the US is always at war. So there's no expectation that the NSA will respect US law. At best, it will pretend to do so.
> So wouldn't it actually be safer for a US resident to select a provider based in the US?
It is true that there's no mandatory logging requirement for VPN services in the US. And PIA has prevailed so far on that basis. However, there are also National Security Letters, which might require logging without public notice.[0]
I bring up taxes not to suggest some sort of tit-for-tat, but to make a point about jurisdiction. Income earned by American corporations operating abroad is not taxed by the U.S. because those operations are outside of American territorial jurisdiction. But being outside American territorial jurisdiction also has other implications beyond taxes.
> Even if there were some John Yoo style memorandum finding this legal under some perverted legal construction
I don't know if the construction would have to be all that perverted. The Constitutional balance between Congress and the President is different inside the U.S. versus outside the U.S., by design. While it's clear that American citizens retain their Constitutional rights abroad, it's also clear that the executive branch has far greater leeway and discretion when acting abroad.
What exactly did the NSA do here that's illegal? The most obvious thing might be violation of the Wiretap Act. But that's an act of Congress. Acts of Congress are presumed to only apply domestically, and the courts that have considered the issue have found the Wiretap Act to have purely domestic application. That's entirely consistent with the Constitutional scheme of Congress being a primarily domestic institution. For similar reasons, courts have rejected attempts by environmental groups to sue the U.S. Army under the environmental laws for pollution on foreign military bases.
The next thing might be some sort of trespass to private property. But trespass is state law and that certainly doesn't apply extra-territorially. I don't know, maybe there is an international common law of trespass, but I'm not aware of anything like that.
Finally, Google and Yahoo might have a Bivens claim directly under the Constitution, say for a 4th amendment violation. Off-hand, I can't think of any reason such a claim wouldn't work, and if I were Google and Yahoo I might bring such a claim just to make a point. But a Bivens action isn't criminal, it's a civil suit for damages arising out of a Constitutional violation.
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