The (rather cynically named) PATRIOT and USA Acts are working their way through Congress right now. Both are startlingly broad in application, and grant tremendous, unchecked powers to the Federal Gov’t.
I support their proposed goals, but they are dangerously broad and ill-defined. Sen Fiengold has courageously come forth to offer ammendments to S1510, to protect privacy and define the focus of this act.
From a mail I’ve recieved from CDT:
What can you do? Call your Senator. Do it NOW.
If you don’t know what to say, try this script:
You need to move fast. Calls after 9:00am on friday, 12 Oct will likely be too late.
I’m not convinced liberty is gone yet, but this is one of those threats that needs stomping immediately. If it passes and is signed without the Feingold ammendments, I’ll be contacting the ACLU and other organizations to challenge it in court. It’s, IMO, unconstitutionally broad, and stomps all over the Bill of Rights.
This one ain’t getting by without a fight. Read my sig!
I wish you all success, but you won’t have it. Justice Ginsberg believes our rights […brace yourself…] come from the Constitution. If they come from those scribbles, then they can come from all new scribbles as well. They have decided it’s time. A new era now dawns. They will likely call it “enlightened”.
Every time I try to pin someone down on just what part of the Bill of Rights is being pummelled, I get nowhere.
So I’ll try again.
Tranquilis, specifically, what part of the Bill of Rights is infringed by these provisions?
If you say “the Fourth Amendment,” then I wonder why you have failed, for all these years, to rise up in protest of CURRENT FRICKIN LAW, which permits pen registers on telephones, taps on telephones, government surveillance when allowed by property owners, subpoenas duces tecum of stored records… in short, the pre-Internet law permits these things now. Why are you complacent about the current state of the law, but in a forthing fury over changes to permit law enforcement to treat electronic transmission of data the same way they now may treat phone calls?
I have news for you: it is very unlikely that the proposed law will be found to violate the Constitution.
So please… QUIT SAYIN’ IT!
If you think this is a bad direction for the country to go… fine. But that’s not the same thing as claiming that the proposed laws will “stomp all over” the Bill of Rights. et’s focus the discussion on where it belongs: this either is, or is not, a good idea for the country. Period.
Bricker, the current law is out-of bounds also, but challenges against it are pretty much over. This is new, is broader, and will allow things that current law doesn’t. I wasn’t informed and aware when existing law was enacted, but I am now. Telling me that I can’t play now, because I didn’t play then, isn’t going to wash.
We have a narrow chance to nip this in the bud, and it would be a shame if people didn’t try to do so. A crying shame.
I dunno … I for one do not mind the slight abridgment in personal liberties these new bills may bring about.
I don’t believe that the every day Moe & Joe really has much to fear. I have never accepted the “evil government out to get us” mindset. I believe that cases where these new laws will be used to shaft law-abiding citizens will incredibly few & far between – and I can morally handle a stray case or two or three.
However, I do concede that one day – way, way down the road – I could end up totally wrong about all of this. I would, at that time, be fairly surprised.
First: I’m not a member of the “Evil Government” squad. A quick perusal of my posts will show that.
Second: I am suspicious of the Government. They’ve done plenty of good things, but also many bad things. I belong to the group of people who think that Gov’t is big dog best kept on a short leash.
More to the point, I’m suspicious of the individuals within the Government. Does anyone in here remember Dick Nixon? He didn’t tell his folks to go out and act-up, but they sure as hell did anyway. Does anyone else in here think that broad new powers and looser restrictions will encourage misbehavior? Oops! Under the new rules, should they be passed, it won’t be misbehavior! When there’s that much power available, it’s best kept tightly leashed.
Oh, and I won’t have to call the ACLU, except on how to help. They’re already on the case.
The linked chart clearly points out the concerns. Read what it says, and tell me you’re still unconcerned.
Oh, come on Libertarian! I do not speak for the nation! I am just an average shmoe. I concede that I could be full of bull. The basis of my feelings on this subject is that I am not scared for myself, or people I know and love – or any law-abiding citizens. I can’t see the inherent danger to me & mine in allowing a suspect to be wiretapped wherever they may roam.
If a stranger overhears or reads a compromising e-mail or cell-phone conversation? I may be embarrassed if I ever knew about it, but otherwise, what might happen? Would an FBI agent come around out of the blue and blackmail me with some tape of a phone conversation I had? What are the specific threats to my law-abiding self that exclude a rogue federal agent or any other one-in-a-zillion factor?
I understand where Tranquilis is coming from. He’s arguing the principles of the matter. Rather than the principles, I am more interested in the practical, likely results that may fall out should this bill pass. If you tell me “The government shouldn’t have more power because … because … because … uh, someone will definitely abuse it for sure! Because our Founding Fathers wouldn’t have wanted it that way! Yeah, that’s it!”, I won’t be particularly moved.
But if you tell me “Look, if these laws pass, an FBI agent is likely to come out of the woodwork and tap you to death and mess with you, blackmail you, harass you and shake you down just because it entertains him,” then I’ll listen to you.
BTW, Tranquilis, after reading the ACLU link, I can agree with sunsetting these ATA laws. That’s a compromise I can make.
Tranquilis, the trouble I have with an OP like this is that one way or another you end up relying on what someone else says. I looked up S1510. Its a bit of a jumble to read. It amends sections of existing laws. That means a meaningful analysis of the bill requires a decent knowledge of existing law. I’d like the ACLU link a great deal more if they would tell me which section is causing which problem. Without such links, it is difficult to tell if the is a problem and where it lies. For example, I quote this section because it at least as an ominous title.
I don’t prosecute federal crimes. Without a great deal of study, I can’t read that and tell you what it does, although it does read rather inocuously.
Robb, I understand, but unfortunately, I’m in a similar boat. So, instead, I read what I can, try to make the best sense of it I can, and research learned opinion. It all, save what the proponents say, adds up to: Bad.
If you’re having a tough time understanding this, then why is Congress acting so hastily? Do they really understand it any better? There’s plenty of time to work this through, while not sitting on our asses. A properly researched and debated law, passed two months from now, or, hell, even six months from now, will be just as, if not more, useful, and far less likely to be destructive.
From the ACLU:
<Itallics mine>
These are what concern me:
Carnivore has already been debunked, having been shown to be an indiscriminate tool, lacking in granularity or selectivity, and relying on the individual integrity of every person that reviews it’s intrecepts.
Trampling on the Constitution.
Article 4.
A little over the top, but not by much.
Due process, unreasonable search.
Article 4.
Article 4, explicitly.
Due process, unreasonable search.
Unreasonable search, violates CIA & NSA charters.
Due process, unreasonable search.
Due process, unreasonable search.
This worries and scares me. Help me, help everyone who cares, put this to a stop. Current law is more than sufficient, we don’t need to do this to ourselves.
A good question. I bet most of us prefer our legislation to be understood before passed.
I’ll try to look for the other act. So far, I just do see blank warrants in the Senate bill.
I’m not saying you can’t play - I’m noting that current law is generally understood to be constitutional – that is, unless a law is relatively new, it’s generally been challenged and upheld. So – the existing law does not “trample the Constitution.”
Does the proposed law depart dramatically enough from the existing law that it’s likely to be found unconstitutional?
Let’s look at what you’ve said:
Acts of Congress enjoy a strong presumption of constitutionality. In short: yes, they do understand it better.
To the contrary, the proposed legislation requires judicial oversight. 18 USC § 2516 (current law) allows law enforcement officials to make “…an application to a Federal judge of competent jurisdiction for, and such judge may grant … an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation.” The proposed new law adds “…electronic communication, or evidence derived therefrom…” to wire and oral communication. (See Sec. 201, Authority to Intercept). Where do you get the idea that judicial oversight is lost? There’s no more judicial oversight on this than there is now on wiretaps: the judge authorizes the tap, and law enforcement decides what use to make of the information gathered.
Indeed. Please state precisely where “blank warrants” are authorized by this new legislation. The only blank warrants are the anticipatory warrants already authorized by current law, in cases where, for example, a delivery will be made, and once made, probable cause will exist. This is CURRENT LAW, not part of the new legislation, and has been found constitutional.
Assuming you mean the Fourth Amendment, not Article IV - your post acknowledges that the proposed law extends “the same inadequate standards” to a new area. These “inadequate standards” have been held to be Constitutional. How can you claim they are inadequate?
I don’t see an allegation that this violates the Constitution, so I will not comment.
I believe I have disposed of your allegation about the lack of judicial oversight above. As to the notice requirement, it’s not true that “innocent targets will never know of surveillance.” The notice provisions are changed to require notice, not immediately, but within ninety days, unless a longer period is authorized by a judge.
This is the first time you’ve identified a substantive change from current law. Under current law, the subject of a search must be immediately served with notice of the search. Under the proposed law, that notice can be delayed - but not eliminated. I fail to see how this change could possibly be held to violate the Constitution, but I’ll admit that (a) it’s a major change, and (b) no court has yet ruled on a similar provision.
Indeed? So do wire-taps, now. If I call a Mafia crime-king on his tapped phone, I, an innocent person, have my call intercepted. This has been found perfectly Constitutional.
Specifically, where does the proposed law do this?
I am beginning to think you haven’t even read the damn proposal! There is a very specific definition offered; foreign intelligence is:
What more did you want?
If you have any case law that defines domestic intelligence agency searches as unreasonable, let’s hear it. The mere fact that one agency, as opposed to another, conducts a search does not render the search unreasonable. It may well violate CIA or NSA charters, but your argument has been that the proposed law “tramples the Constitution.” The CIA and NSA charters are not relevant to that point.
Again, the mere fact that information is “sensitive” has no bearing on whether the search that uncovered it was unreasonable, and therefore violative of the Fourth Amendment. And what, specifically, is the Due Process violation here?
And this is different from current wiretap law, already constituional… how?
Again: you may argue that this is bad… you may not argue that it is unconstitutional. The constitutionality of a given law is not a matter of opinion. You may believe that current law is unconstitutional - but if the Supreme Court has upheld it, or refused to hear cases challenging it - your opinion (and mine) is of no authority.
Please stop screaming about how this tramples the Bill of Rights. You can scream that it tramples what you’d like the Bill of Rights to mean, or what the Foundiung Fathers wanted it to mean – those are all opinions. What it DOES mean, though, is a matter of settled law. Nothing, except possible the notice provisions, in the new law stretches the bounds of search and seizure law neyond its current markers.
At the risk of stating the obvious, like forfeiture laws were recently, these laws (if passed) can someday be reformed or repealed. So if the sky is falling, it can be pushed back up once the exigency abates.
Bricker, good arguments. What do you think about all the exceptions carved into the Fourth Amendment over the last 20 or so years? Consider “public safety,” and “automobile,” given how easy it is to get a judge on the phone. It would seem as though “exigency” is assumed to be the norm and not the exception. Exceptions swallowing rule?
Yes, they do carry a presumption of constitutionality. That doesn’t say anything about legislature’s level of understanding. The DMCA is a great example of poorly thought-out law, and while it’s survived challenges to date, it clearly demonstrates that Congress is quite capable of passing legistlation it doesn’t understand.
Precisely. Are you familiar with the operation of Carnivore? It has no audit trail, all users are logged in as “Admin”, and are anonymous to the system. The suppression remedy for illegal interception of other communications in Title III is not extended to electronic communications, so ‘over-collection’ has no counter-motive. There appears to be no lock-out for text-string searches, nor any measure to enforce the limits of a particuar order. The requirements for obtaining a PR/TT warrant are ridiculously simple: The government must only certify to a judge, without needing proof, that such a warrant would be “relevant” to an ongoing investigation, The judge does not even have the authority to reject the application, making it entirely possible, and quite simple, for a single operator to turn a PR/TT order into a full-blown search. The ISP doesn’t have any method for determine what Carnivoe/DCS1000 is sampling, as everything that passes through the ISP also runs past the box, but the ISP has no access to the collected data. I reiterate: Carnivore/DCS1000 relies on the integrity of it’s operators, and admits no readily available remedy for mis-use, nor even any means for exposing mis-use.
With “nationwide service” of PR/TTs, the Act would authorize the virtual equivalent of a blank warrant: The court issues the order, and the law enforcement agent fills in the places to be searched. The Fourth Amendment requires that warrants must be written “particularly describing the place to be searched”. A judge can’t even monitor the results of these national warrants, as he doesn’t know where they’ve been served.
Well, taken from that angle, you’ve a point. So, let me rephrase: These standards fall below what I believe to be reasonable.
Well, I missed the 90 day provision. Got me. However, without immediate notice, a person has no ability to protect himself or herself against inaccurate or overbroad warrants. Per SCOTUS, notice is a key element of Fourth Amendment protections (Richards v. Wisconsin - 1997), (Wilson v. Arkansas -1995).
New circumstance: Roving wiretaps, PR/TT orders will follow our putative Mafia Kingpin around, allowing access to IP traffic to any and all facilities used by him. As discussed above, that means that all traffic on that system is now monitored. In your phone call example, it means that every phone our Crimelord uses is now tapped, even when he’s not using it, even if it’s a public system. You know, libraries, cybercafes, university systems?
The House and Senate bills would allow use of FISA surveillance authority even if the primary purpose is a criminal investigation if intelligence surveillance remained a “significant” purpose.
*Section 215ACCESS TO RECORDS AND OTHER ITEMS UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT.
Title V of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1861 et seq.) is amended by striking sections 501 through 503 and inserting the following:
SEC. 501. ACCESS TO CERTAIN BUSINESS RECORDS FOR FOREIGN INTELLIGENCE AND INTERNATIONAL TERRORISM INVESTIGATIONS.
``(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director... ...may make an application for an order requiring the production of any tangible things... ...for an investigation to protect
against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.* <emphasis mine>
Right you are. I missed that, and retract that charge.
Right enough. I should have expanded my charges to include domestic espionage by the CIA (contrary to the National Security Act of 1947) and NSA.
Overall, and realizing that I’m not a Constitutional law expert, I think my asertions are pretty reasonable, and have sufficent grounds. The Chair of the Senate Committee on the Judiciary Subcommittee on the Constitution, Federalism & Property Rights has strong concerns, too, and I’m reasonably sure he knows what’s what.
As for my over-all concerns, I have so far only assertions that I’m mis-reading what the bill of Right means. Will you show me where I’m wrong?
As I have previously stated, there are other paths to follow, should this be passed. That doesn’t mean, beagle, that this should be passed in a hasty, and I believe, fundamentally flawed, fashion.Sure, we could try for a repeal, but that’s rather difficult, as I’m sure you know.