NSA's Legal Win Introduces a Lot of Online Insecurity 239
Nerval's Lobster writes "The decision of a New York judge that the wholesale collection of cell-phone metadata by the National Security Agency is constitutional ties the score between pro- and anti-NSA forces at one victory apiece. The contradictory decisions use similar reasoning and criteria to come to opposite conclusions, leaving both individuals and corporations uncertain of whether their phone calls, online activity or even data stored in the cloud will ultimately be shielded by U.S. laws protecting property, privacy or search and seizure by law-enforcement agencies. On Dec. 27, Judge William H. Pauley threw out a lawsuit filed by the American Civil Liberties Union (ACLU) that sought to stop the NSA PRISM cell-phone metadata-collection program on the grounds it violated Fourth Amendment provisions protecting individual privacy and limits on search and seizure of personal property by the federal government. Pauley threw out the lawsuit largely due to his conclusion that Fourth Amendment protections do not apply to records held by third parties. That eliminates the criteria for most legal challenges, but throws into question the privacy of any data held by phone companies, cloud providers or external hosting companies – all of which could qualify as unprotected third parties."
All NSA-related judgements should be suspended (Score:5, Interesting)
Due to the scale of NSA data collection, it is safe to assume that the NSA has data about every single US judge.
The data NSA has may render the judges unable to render impartial judgement.
A bi-partisan political review of all NSA data about every US judge should be conducted to verify that the judges are in the position to do their jobs.
By now the entire US legal system might be corrupted by the virtually unlimited NSA data collection.
What uncertainty? (Score:0, Interesting)
leaving both individuals and corporations uncertain of whether their phone calls, online activity or even data stored in the cloud will ultimately be shielded by U.S. laws protecting property, privacy or search and seizure by law-enforcement agencies.
What uncertainty? If you have data on company X's servers, and law enforcement shows up with a warrant to search company X's stuff, they are getting those servers. There's nothing uncertain about this, it's the way it has always been. I mean we even discuss it here on /. every damn time a data center gets raided anywhere in the world.
Not to mention the fact that company X has the right to do pretty much whatever they want with that data, including hand it all over to law enforcement or selling it for market research. You can disagree with it, but that's reality, only narrow classes of information are legally protected (in US... where some of your data probably is, on the "Internet has no borders", so cry me a virtual river).
I really can't wait for this NSA crap to blow over so we can talk again about things like who owns data in the cloud, what laws keep it from being analyzed or sold, what jurisdiction, etc. instead of all this faux surprise "but teh gubmint..." bull crap.
I don't get how we can talk about all the ingredients to this soup, HERE on /. even, and be _remotely_ surprised when we take the lid off. I'm OK talking about change, and stronger privacy protections, but in the old context of "because we don't have any" not this hopeless reactionary NSA hate where as long as "they" don't get your data we don't care.
Seriously, it's sort of... you know you don't have a fence on your lawn, you should know that animals shit on it regularly, but when someone tells you that guy you don't like, Jim down the street let his dog shit on it, it's time for fisticuffs.
The neighbor you abruptly stopped discussing privacy fences with last week is just scratching his head wondering if he should even tell you about all the cats or that stray dog dropping a deuce on your petunias, judging by your rage induced hyper focus, he's guessing it wouldn't matter.
It's a valid opinion (Score:5, Interesting)
It's just wrong, that's all. Wrong because our emails are *clearly* the "papers" mentioned in the Constitution. If there's a law that makes 3rd party possession of same somehow the equivalent of "it suddenly not being yours" then it's THAT law that has to go. This is how it is in most of Europe BTW. YOU control your phone records, not Verizon.
I could almost live with TIA if I thought that it would only be accessed via a court order, but that's not what we have. What we have is secret FISA orders, executed in secret, using secret criteria in accord with secret interpretations of secret executive orders.
I sympathize with this judge's concerns, I do, but the real world consequences of what they're doing are more likely to be worse than the real world consequences of stopping them from doing it, even if we have another 9-11 every year.
Our democracy will not survive if the government can data mine all our "anonymous" data until programs it wrote decide that we fit a "profile" and THAT itself constitutes "reasonable suspicion". This can be used to stifle all dissent, and will be used for exactly that, starting, obviously, with people who speak out against the legitimacy of this process in the first place. A guy like Howard Zinn would just be destroyed by this.. we wouldn't have legitimate dissent in this nation.
Here's something that should help people think clearly on this topic. The NSA line operators and management REFUSED to permit the NSA to apply the same level of monitoring to THEM as they apply to us. They didn't want Congress to second guess them or know what they were doing.
(Binney) ".. also explained that NSA never developed and implemented technology in order to have the capabilities to track activities by employees on the agencyâ(TM)s systems because of two groups of people: the analysts and management.
The analysts âoerealized that what that would be doing is monitoring everything they did and assessing what they were doing. They objected. They didnâ(TM)t want to be monitored.â
Management resisted because it meant one would be âoeable to assess returns on all the programs around the world.â It would be possible to âoelay out all the programs in the world and map [them] against the spending and the return on investment.â
It meant the agency would be âoeexposed to Congress for auditing,â Binney added.â Management did not want that."
From:
http://dissenter.firedoglake.com/2013/12/27/interview-with-nsa-whistleblower-bill-binney-afraid-were-spreading-secret-government-around-world/ [firedoglake.com]
But this is the ONE thing that MUST be implemented. If an NSA operator cuts a fart, I want Congress to be able to know what he had for lunch. Unwatched watchers cannot be permitted to exist. Period.
At the heart of what's going on here is the people at the NSA are looking into their own hearts and deciding that they're all right and the American public has nothing to fear from them or their intentions. Bully for them, I'm sure it's true, but they won't always be there.
It's not about them or their intentions. It's about the institution, the process, *the machine* and how we're building that machine.
You can't say to yourself, as an NSA employee, by way of assuaging your own secret apprehensions, "Well, if push ever does come to shove, if it came right down to it, an unconstitutional, openly fascist-level of abuse would just never happen because WE'D never permit it". At least, you can't tell yourself that and also bash guys like Snowden and Binney because THOSE guys , whom you hate so much they make you grind your teeth , they're exactly the hypothetical WE you posit in the above safeguard. It doesn't look any different that THIS .. THIS THIS that is before your ey
I say BS (Score:5, Interesting)
"The decision of a New York judge that the wholesale collection of cell-phone metadata by the National Security Agency is constitutional ties the score between pro- and anti-NSA forces at one victory apiece.
I call BS. Nowhere in the article did the judge even mention the Constitution. From the information provided in the article, the judge is obviously either paid off or incompetent. He states that
In the 54-page opinion issued in New York, Pauley said the sweeping program "represents the government's counter-punch" to eliminate al-Qaeda's terror network by connecting fragmented and fleeting communications.
which has nothing to do with legally acquiring evidence or the Constitution, and
"There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks," he wrote.
which once again was irrelevant to the question before the court. Just because the government has NOT YET been caught using the data illegally has nothing to do with it being illegally acquired.
The judge also quotes extensive justifications from the Patriot Act, which last I checked, is NOT part of the Constitution.
Re:Impartiality (Score:4, Interesting)
Nobody believes that since the Republican-majority Supreme Court handed the election over to the Republican candidate in Bush vs. Gore.
I don't even think the idealistic lawyers believe that. They've had too much experience with the courts.
It's like the Greek philosopher Thrasymacus said: law is the interest of the strong.
Re:The ruling does nothing novel (Score:5, Interesting)
The question is whether Smith v. Maryland -- which was about one order to put a pen register on one phone based on suspicion (but no warrant nor probable cause) -- is distinguishable from this case where every phone record from every phone in the country with no particularized suspicion at all. Pauley explicitly ruled "no", the other court ruled that it was distinguishable.
If the NSA metadata collection is not distinguishable from Smith v. Maryland, then the slippery slope argument is not a fallacy.
Re:The insecurity right now (Score:3, Interesting)
the problem is that the ISPs will not allow you to use the internet properly (e.g. hosting your own data on your own server at home
That's a pile of bullshit. ISP's don't give a shit about private servers on home service connections, and most don't even care if they're public as long as it's not a "business grade" server.
And even if they do, that's for residential "buffet style" internet access, every ISP in the country will happily sell you a business account where you can run servers 24/7.
And what are the price differentials the residential user sees if they purchase that "business grade" service? What if the only feature of the business grade service they were interested in was not having their home server's traffic discriminated against? (i.e. not needing more 9s of uptime or any other part of the 'business grade' service). The answer is an absolutely ridiculous premium in price, often by a factor of well over 100%. This is a convenient way for the established internet giants to prevent home hosted servers from competing with the services they provide with their servers connected to their endpoints of 'the internet'.
What such 'business grade' service is really about, is about the ISPs getting to 'take a cut' of any profitable innovative home-hosted server based business. And it's a 'cut' that is entirely unjustified based on any actual expense the ISP incurs (the home hosted server is still regulated by the same bandwidth policies as any youtube-addict uploading gigabytes of lol-cat videos). Basically the issue is entirely about the concept of how "net neutrality" was supposed to level the playing field for all server operators connected to the internet, by forbidding arbitrary traffic discrimination, that was tantamount to network operators demanding an extra tax on profitable/valued internet traffic.
Re:Impartiality (Score:5, Interesting)
Nobody believes that since the Republican-majority Supreme Court handed the election over to the Republican candidate in Bush vs. Gore.
So that's what really did it for you? That's when you started doubting the system, when the Supreme Court upheld the legal principle that you can't keep changing the rules of an election after the voting until the other guy wins?
Scalia on Bush v Gore: ‘Get Over It’ [outsidethebeltway.com]
Starting in the 1970s, I worked as a paralegal in some law firms on a different cases, including a few important pro bono stuff. [Long legal experience omitted] There was a big debate at the time about whether the law was just enforcing the privilege of the rich, or whether it actually promoted justice. At one point, they had me convinced that there was some justice in the system, after we won some abortion cases and forced some cities and states to provide housing for the homeless, as they were required to do in their constitutions (which they had ignored). The civil rights laws finally helped negroes fight for right to vote in the South without getting killed https://en.wikipedia.org/wiki/Mississippi_civil_rights_workers'_murders [wikipedia.org] as often, and finally gave broad protection to black people and women as well.
So the optimists had me convinced. The law could sometimes, imperfectly, provide justice. American corporate capitalism seemed to be doing pretty good too -- good pay, secure jobs.
Then came Ronald Reagan. The gentleman's agreement up to then in Congress was that each president would choose a distinguished legal scholar and jurist who was impartial and respected by all sides. Reagan openly announced that he would be appointing justices that would give conservatives the results they wanted. https://en.wikipedia.org/wiki/Ronald_Reagan_Supreme_Court_candidates [wikipedia.org] He deliberately chose young justices (rather than the customary older, experienced justices) to end the normal rotation in the Court. I followed this on the Wall Street Journal editorial page, and they were open about what they were trying to do -- which was pack the court. And yes, Scalia was one of the nastiest bullies of all, just making decisions based on his own opinion and coming up with excuses to ignore the law. Since then it's gotten worse.
There were many opinions of the Supreme Court that I didn't like, but I never expected to see something like Bush vs. Gore. The law in Florida was that votes were to be counted according to the intent of the voter. In order to believe that the voters intended to vote for Bush, you'd have to believe that 3,400 Jewish voters intentionally voted for Pat Bucanan, a prominent critic of Israel, instead of Gore and Lieberman. Even Bucanan didn't believe that. The 5 Republican justices ignored Florida law, and the facts, to hand the election to Bush. Since then they've been voting the Republican party line, which has moved far to the right.
So I had to admit that the Marxist cynics were right. The law enforces the privileges of the powerful. No money, no justice.
Re:How about that rented storage? (Score:4, Interesting)
I will admit that the language is a wee bit strong, but I really fucking hate it when assholes who've done 10 whole minutes of research on the internet refer to almost everyone else as Sheeple.
It's not as revisionist as you think. The Constitution is clearly intended to head off the slavery debate. Technically it was legal almost everywhere, but the Northern states were starting to abolish it and Southerners were worried a strong Federal government would impose freedom on their unwilling states. So they said flat-out exactly what was to be done about slavery, and everybody went along with that consensus for a few decades.
As for the Indians, keep in mind that under the Articles of Confederation we hadn't been able to take control of the Northwest territories. We had no Army and the states were so busy arguing over who would get the land when we finally divided it up that nobody was able to make an Army. In 1789 we passed the Constitution. In 1790 we sent the first expedition into the Territory, and it was crushed. The same thing happened a year later. Then in 1792 Mad Anthony Wayne took command. As a result of the war the Indian population of Ohio was virtually eliminated.
BTW, on the prices we paid for Indian land, most Indian tribes did not have governments in the sense that we have a government. They didn't have an elaborate legal system, with elected Sheriffs, and County Jails, to enforce the will of some central body. It was not uncommon for the US to declare some random, easily bribeable dude "Chief," give him a lifetime supply of beer (plus just enough axes and other equipment to make him important in the community) and then send in the Army to shoot anyone who insisted on not being cheated.