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Government United States Your Rights Online

When Snowden Speaks, Future Lawyers (and Judges) Listen 221

TheRealHocusLocus writes: We are witness to a historic first: an individual charged with espionage and actively sought by the United States government has been (virtually) invited to speak at Harvard Law School, with applause. [Note: all of the following links go to different parts of a long YouTube video.] HLS Professor Lawrence Lessig conducted the hour-long interview last Monday with a list of questions by himself and his students.

Some interesting segments from the interview include: Snowden's assertion that mass domestic intercept is an "unreasonable seizure" under the 4th Amendment; that it also violates "natural rights" that cannot be voted away even by the majority; a claim that broad surveillance detracts from the ability to monitor specific targets such as the Boston Marathon bombers; him calling out Congress for not holding Clapper accountable for misstatements; and his lament that contractors are exempt from whistleblower protection though they do swear an oath to defend the Constitution from enemies both foreign and domestic.

These points have been brought up before. But what may be most interesting to these students is Snowden's suggestion that a defendant under the Espionage Act should be permitted to present an argument before a jury that the act was committed "in the public interest." Could this help ensure a fair trial for whistleblowers whose testimony reveals Constitutional violation?
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When Snowden Speaks, Future Lawyers (and Judges) Listen

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  • Snowden (Score:5, Insightful)

    by Kaenneth ( 82978 ) on Sunday October 26, 2014 @01:24AM (#48232793) Homepage Journal

    Right or Wrong, he's a brave man.

    • Re:Snowden (Score:5, Insightful)

      by rholtzjr ( 928771 ) on Sunday October 26, 2014 @02:23AM (#48232905) Journal

      This man stood up to the oath "protect from foreign and domestic" threats. And they now want to persecute him for espionage?
      Totally disgraceful!!!
      I still think we need to fire all Judicial, Legislative and Executive branch members and start over.
      Or better yet hold them responsible for the lack of over site.

      • Re: Snowden (Score:3, Insightful)

        by Anonymous Coward

        Apparently some people think only gov can decide what is a threat and what is not. With such thinking gov itself will never be a threat. Dangerous, if you ask me.

    • by flyneye ( 84093 )

      Call it Catch 22, but, someday we'll ask " Where are the Snowdens of Yesteryear?"

  • by jcr ( 53032 ) <<jcr> <at> <mac.com>> on Sunday October 26, 2014 @01:26AM (#48232799) Journal

    What the NSA is doing is billions of counts of illegal wiretapping. A This kind of mass data gathering is precisely what the fourth amendment prohibits, and any person involved with this program is violating their oath and committing felonies on a routine basis.

    -jcr

    • by sumdumass ( 711423 ) on Sunday October 26, 2014 @01:37AM (#48232817) Journal

      They wouldn't be committing felonies as that would require a violation of law rather than violations of constitutional restrictions against government. The law, constitutional or not, allows the NSA to do what they are doing else a lowly court could shut it all down by a simple low level prosecutor bringing charges to a grand jury. Once it is in the grand jury's hands, the government cannot order the prosecutor to stop anything and it is almost impossible for the administration to stop as the judicial branch is separate. Congress would have to pass a law barring the judicial branch from taking the case up or proceeding with the case which would only work if a court didn't find constitutional issues with the case before it was passed.

      Do not construe this comment to be in support of the NSA, just reality as it is presented to us today.

      • by Astro Dr Dave ( 787433 ) on Sunday October 26, 2014 @02:16AM (#48232893)
        As I see it, every agency that has a hand in the domestic surveillance programs detailed by Snowden is in violation of Federal law, and yes these are felonies. From Title 18 of the United States Code:

        241. If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
        If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
        They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

        242. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
        • As you see it maybe. But as the government sees it, it doesn't violate the constitution and it is legal which is why even after popular protest, they continue doing it.

          But if you look at those sections of law, you will see that 241 that you actually have to conspire to- conspire actually means intend in this sense because two or more people are attempting to work out how to do whatever the law says is a violation. But if congress which is barred from passing unconstitutional laws passes a law making it lega

          • if congress which is barred from passing unconstitutional laws passes a law making it legal,

            Nothing stops Congress from passing unconstitutional laws.

            then it really isn't conspiring to violate someone's rights

            Sure it is.

      • > They wouldn't be committing felonies as that would require a violation of law

        Please review the federal Electronic Communications Privacy Act and your state's wiretapping statutes. Completely unrestricted wiretapping is a federation under numerous statutes.

        • Please reviee the FISA and Patriot act laws which specifically allow violations of those laws which supersede the felonies you suggest.

          Also, both sets of laws you brought up have exceptions for law enforcement engaged in legal activities which those other laws do satisfy.

          • > Please reviee the FISA and Patriot act laws which specifically allow violations of those laws which supersede the felonies you suggest.

            Neither act protects against prosecution for state laws against wiretapping, which can still apply although they're difficult to enforce against a federal agency. And I'm afraid that the NSA, according to Snowden's leaks and according to the Stratfor documents available at Wikileaks, is in egregious violation of both sets of laws.

            • Actually, a federal law will trump any state law. The supremecy clause of the constitution makes it supreme. That is your dificulty in applying them to a federal agency.

              • Thank you for reminding me of "federal preemption". But the federal statutory exceptions for law enforcement in FISA and EPCA enforcement are far from absolute. A prosecutor woou'd have to work around them, to prosecute for acts that are not _specifically_ allowed by the statute. The facts from Edward Snowden's published documents that the NSA is in clear violation of even those statuses would allow prosecution even under FISA and ECPA.

      • They wouldn't be committing felonies as that would require a violation of law rather than violations of constitutional restrictions against government. The law, constitutional or not, allows the NSA to do what they are doing else a lowly court could shut it all down by a simple low level prosecutor bringing charges to a grand jury.

        Which is why no one in Congress can be expected to cast the first stone at the NSA. Whether they are in a position to know of its effectiveness or not, they will shy away in mortal political terror of NSA producing clear evidence that mass surveillance has "kept us safe". Still waiting. Likewise, pure judicial challenges run into stone walls as courts circularly argue over jurisdiction.

        Or in the case of Hepting v. AT&T [wikipedia.org] the Ninth Circuit committed to a sorry-ass monkey fuck decision where the case was

      • by HiThere ( 15173 )

        I don't know. To me each count looks like a separate act of malfeasance.

      • by Uberbah ( 647458 )

        They wouldn't be committing felonies as that would require a violation of law rather than violations of constitutional restrictions against government.

        FISA lays out those felonies: 5 years in prison and a $10,000 fine for each offense. Right off the top that's going to mean prison sentences measured in thousands of years - for each NSA worker - as well as billions in fines.

    • class action lawsuit by every american. it has to happen
  • by Anonymous Coward on Sunday October 26, 2014 @02:24AM (#48232909)

    There's no way companies are paying Alexanders new company a million $ a month to consult. He's not allowed to reveal secret info, and public info is free. So what would the be paying for. There's no way the current NSA CTO is moonlighting for it and nobody in the NSA bats an eyelid. You would never have a part time employee in that position in the NSA, the money would be a conflict of interest.

    What does make sense, is if this company is a conduit from banks and telcos to NSA.

    You can't legally search US bank records, but if his company received those records and resold them, then a conduit like that could conceal the source of the data. So this is what makes a more plausible role for that company that would be worth the millions per year, laundering the source of the data into the NSA.

    A data broker for data that the NSA legally can't obtain from the original source. When they ask the NSA if it obtained US Bank data, it says no (pretending it doesn't know the data it bought from this conduit company came from banks), when they ask them if they obtained telco data they again say no.

    Likewise foreign partners like GCHQ, are spying on Brits via companies like BT & Vodafone and sending the data to the NSA. But suppose instead they simply sold data for some company to process, and that company happened to resell that data to some other company which then lands in the NSAs database.

    Q. Did NSA get any data from Vodafone.
    A. Not to my knowledge.... says the NSA man.

    A million dollars worth of plausible deniability. Now that *does* seem a more plausible role for his new company and its what I suspect is behind it.

  • by ddibble ( 3890617 ) on Sunday October 26, 2014 @02:53AM (#48232975)
    Sting calls it decades ago: https://www.youtube.com/watch?... [youtube.com]
  • The whole purpose of juries is to create the possibility of nullification. However, the government hates this limitation of its preferably unfettered powers and tries to prevent jurors being informed of their right to strike down unjust prosecution.

    http://en.wikipedia.org/wiki/J... [wikipedia.org]
    http://reason.com/blog/2014/10... [reason.com]

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