Antonin Scalia

The Real Problem With the NSA's Indiscriminate Spying

Innocent people should not be punished in the pursuit of the guilty.

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Some years ago, when tax simplification was being discussed, a cartoonist came up with the most likely way the IRS would achieve it: a postcard-sized 1040 form consisting of two lines: 1) How much did you make? 2) Send it in.

That's comparable to where Americans are headed when it comes to keeping private information away from the eyes of law enforcement, intelligence agencies and other government bodies. "Are there things you would prefer to keep secret?" the official inquiry will read. "Please provide a full list."

Actually, you already did. At least it's a fair possibility, considering that the National Security Agency has been requiring Verizon and other phone companies to turn over records of pretty much every call, domestic or overseas, going back to 2006.

If you've made a phone call in the past seven years, the NSA almost certainly is aware of it. It knows whom you called, how long you talked and maybe where you were. Seven years—a period of serene, unbroken continuity between George W. Bush, who was correctly seen as an enemy of civil liberties, and Barack Obama, who was mistakenly taken (by me, among others) to be their friend.

Nor does the invasion necessarily end there. George Washington University law professor Orin Kerr noted that if NSA personnel "have an order for phone calls, they could also have it for emails and other electronic records." From all appearances, this may be the most far-reaching surveillance program ever conducted under our anti-terrorism laws.

But there's more. The Washington Post reported, "The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, emails, documents and connection logs that enable analysts to track a person's movements and contacts over time."

Though the program legally may target only foreigners abroad, U.S. citizens may become collateral damage. Unlike the phone records sweep, though, it reveals not only who is communicating but what they say.

Remind me why we have a Constitution? Because of its ban on unreasonable searches and seizures, the government normally can get a warrant to invade someone's home and papers only if it has tangible grounds to think the person did something illegal and only if it specifies what it's looking for. Searches require what lawyers refer to as individualized suspicion.

In dissenting from a recent Supreme Court decision allowing police to take DNA swabs from felony arrestees, Justice Antonin Scalia noted some relevant history. "At the time of the Founding, Americans despised the British use of so-called 'general warrants'—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application." The Fourth Amendment was intended to prevent such warrants.

The logic of Scalia's conclusion applies as well here: "Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."

Even experts who normally side with the government in anti-terrorism measures were taken aback by this voluminous dragnet. Brookings Institution scholar Benjamin Wittes noted that the law is supposed to allow the government to get only "foreign intelligence information" that is "relevant to an authorized investigation."

How, he wondered, is it "possible to regard metadata about all calls to and from a Domino's Pizza in Peoria, Ill., or all calls over a three-month period between two small businesses in Juneau, Alaska, as 'relevant' to an investigation to protect against terrorism"?

The obvious answer is that everything and everyone are relevant to everything, because anything could yield some clue that could conceivably solve some crime. But that view is the same one that justified those general warrants from King George III.

The problem with indiscriminate ransacking of homes and effects is not that it's ineffective in finding wrongdoing. It's that the innocent people should not be punished in the pursuit of the guilty. It's that the need to protect the safety of the public has to be balanced against preserving the privacy of the individual.

Obama thinks you really shouldn't worry about all this. A presidential spokesman offered the soothing assurance that the phone surveillance program "has been a critical tool in protecting the nation from terrorist threats."

That leaves just two nagging questions: Why should we believe you? And what have we lost?

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58 responses to “The Real Problem With the NSA's Indiscriminate Spying

  1. …and Barack Obama, who was mistakenly taken (by me, among others) to be their friend.

    Ah-HA!

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      1. You dummy, now PRISM knows about the Lotus. Good luck avoiding taxes on it, now.

        1. not only that, but what sort of idiot buys a Lotus Elise after only six months of high earnings? Pay down your debt first, then save, then piss a bit up against the wall, muppet

          1. not only that, but what sort of idiot buys a Lotus Elise after only six months of high earnings?

            Somebody who works for the government?

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      2. I’m not a parker. That was a legit comment.

        1. I can’t believe how parker you are being right now.

        2. Bull. You are the parkest.

    2. Well, you have to give the man credit for admitting he was wrong. At least he’s not shouting, “Snowden’s a a dirty traitor!”

  2. “protection of our people from suspicionless law-enforcement searches.”

    If we were so unworthy of suspicion, why would the government have piles of information on us?

  3. Remind me why we have a Constitution?

    What, that old thing? It was written like 100 years ago or something in Anglo-Saxon by slaveholders.

    1. “Remind me why we have a Constitution? Because of its ban on unreasonable searches and seizures?”

      If Obama (or any dem) wants to do it, they must have a good reason, therefore it can never be unreasonable.

  4. It’s that the innocent people should not be punished in the pursuit of the guilty.

    Anyone can be found to be guilty of something if you look hard enough.

    1. that’s why they want records on everyone for everything.

      Even if they don’t want to prosecute you, they can hold it over your head to keep you in line. Selective enforcement, and all that.

      1. Selective enforcement, and all that.

        Rule of law man.

  5. “…and Barack Obama, who was mistakenly taken (by me, among others) to be their friend.”

    I keep asking the Chapman types, and they keep refusing to answer, why in the hell they ever believed that? What in Barack Obama’s words, both spoken and written, ever led you to believe that he favored individual liberty and/or a benign central govt?

    1. It’s simple really, guys like Chapman and Godwin are just that stupid.

    2. What in Barack Obama’s words, both spoken and written, ever led you to believe that he favored individual liberty and/or a benign central govt?

      Well, like 7-Up is the Un-Cola, Obama was supposed to be the Un-Bush…duh!

      1. Q: What does 7-Up have in common with a nun?
        A: Never had it, never will.

        1. You just aren’t trying hard enough.

      1. You know who else leveraged hatred to gain power?

        1. The Sith?

          1. That was sublime.

  6. Remind me why we have a Constitution?

    Who fucking knows Steve, but why get your panties in a knot over it now? I mean, you shilled for the fucking weasel.

  7. “reasonable” .. not to be confused with the Chrome plugin for Reason, is a wonderful weasel word. Article 1 Section 8 is also filled with them, despite the noble intent.

    You’ve given out your information to third parties, therefore there is a reasonably less expectation of privacy since you haven’t kept that info secret. Plus, you’re using the intertubes, which involves “interstate commerce”, which we have the right to regulate. It is therefore, “necessary and proper” in the name national security to intercept such traffic, which have the right to anyways, from the aforementioned reasonable reasons.

    1. That’s good rationale for the government to open and read your snail-mail, too.

      1. No, there are limits (as far as you know). We don’t read your snail-mail. We merely scan both sides of it and long the time sent and the time arrived as well as the address and name of sender and recipient. All to stop the Terrorists of course.

      2. Ummm, don’t give them any ideas.

    2. By that definition, the 4th Amendment means the government can listen to your phone calls, read your email and pretty much do anything up to bugging your house.

    3. Wouldn’t that apply to logging when you leave your home, where you go, how long you stay, what you did, and when you returned? Assuming you are traveling in public and not through a secret private wormhole. I don’t see any logical limits now that they’ve established the ”public’ argument and the ‘third party’ argument.

  8. you have to give the man credit

    Fuck that. It’s Chapman.

  9. Remind me why we have a Constitution?

    What difference, at this point, does it make?

  10. Good for Snowden for leaking this stuff, which by the way had been known by people in the intel and LEO community for a while. The joke always was “the NSA hears everything, no really everything, they are wired into all of the IT and phone companies”. People had been saying that amongst themselves for years. It was always a reliable rumor. But good for him for doing it, but what a fucking millennial rube this guy is. Get this.

    A lot of people in 2008 voted for Obama. I did not vote for him. I voted for a third party,” Snowden said in an interview with the Guardian. “But I believed in Obama’s promises. I was going to disclose it [but waited because of his election]. He continued with the policies of his predecessor.”

    http://washingtonexaminer.com/…..le/2531439

    I am astounded that anyone who worked in the federal IC or LEO community actually thought Obama was going to change anything.

    1. Last I heard there were 1.4 Million people with TS clearances. There’s no way the government can properly vet that many people. Some of them are going to turn into leakers like this. The only good thing about Big Government is that it can’t keep any secrets. But what is the populace going to do with this information? The same thing it has done with all the other information that has come out about government abuses: NOTHING.

      1. The only thing is that they have over classified so much, 99% of those people with TS clearances don’t have access to anything interesting.

    2. He voted third-party, doesn’t look like a rube to me.

  11. and Barack Obama, who was mistakenly taken (by me, among others) to be their friend.

    Once again directly contradicting what Shrieking Idiot told us on Friday.

    1. They never said he was a “light worker” or anything. Nope. No one ever thought for a minute that Obama was going to change these policies. None of his supporters ever thought that. They always knew he was a bad guy who was just going to be Bush III.

      The mendacity of these people is just amazing. But you watch, that will be the story.

  12. ….the need to protect the safety of the public has to be balanced against preserving the privacy of the individual.

    That ‘balance’ has already been struck in the Constitution with the words “Congress shall make no law…” and “…shall not be infringed”. In balancing my desire to hit you repeatedly in the face with a baseball bat and your desire to not be hit in the face with a baseball bat, any compromise that results in you being harmed in any way is an outrageous imbalance.

    1. I am all for public safety. And sure we need a balance. Okay, we know this stuff is intrusive. Now it is up to them to explain their side of the balance. How many terrorists has this program found? How much safer are we because of it? Unless they can make that case, and they haven’t made it yet, then they lose any balancing test.

      1. John, the “balancing test” itself, is antithetical to liberty. As Jerryskids noted, the framers and the ratifiers have already struck the balance.

        It is unreasonable to balance “public safety” or “national security” against individual liberty, free enterprise or the principles set forth in the Declaration of Independence.

        The founding fathers warned us that there would never be a dearth of powermongers demanding more power in order to deal with both endogenous and exogenous threats. Sure, many of them, John Adams in particular, became those powermongers.

        1. No it is not. You have to have some kind of law and police. Any government by its nature is going to intrude on people’s rights. So you have to figure out how to limit that, unless you just want to have anarchy and no government, which won’t happen.

          1. “Anarchism is not a romantic fable but the hard headed realization, based on five thousand years of experience, that we cannot entrust the management of our lives to kings, priests, politicians, generals and county commissioners.”

            Edward Abbey.

    2. That being said, we all know that the government has convinced us that the words “Congress shall make no law..” and “…shall not be infringed” really mean “Congress shall make no unreasonable law…” and “…shall not unreasonably be infringed”. The debate over the PATRIOT Act and everything subsequent to that isn’t going to be decided by whether or not it infringes on your Constitutional rights but by whether or not it is a ‘reasonable’ infringement.

      And here’s the thing: it’s not just that the debate is going to be settled on the question of reasonable infringement – the debate already has been settled. It’s just that the debate was conducted behind closed doors in private meetings, with secret memos and classified documents by a handful of select government officials.

      As with the ACLU FOIA request for the ruling on the one known case where the FISA court said the intelligence services overstepped their bounds, it is the government’s contention that the public has no right to participate in the debate. The government has already determined that this is a reasonable infringement of your Constitutional rights and that settles that.

      1. Whether or not you agree that what the government is doing is good or bad or legal or illegal or likely to be effective or ineffective, arguing that the public has no right to know, no right to question, no right to debate, no right to attempt to change what the government is doing is mind-bogglingly unAmerican.

        “I may not agree with what you say so I’ll defend to the death the government’s right to make you shut the fuck up” is hardly a decent rallying cry.

  13. I thought revolution/rebellion/succession were all crazy fantasy up until now. I wonder if if this administration is trying to force one of these options now. I mean targeting tea baggers is one thing, but attacking the press and spying on joe six pack just won’t fly.

    1. but attacking the press and spying on joe six pack just won’t fly.

      Are you sure about that? Joe Six Pack’s quality of life is still better now than at any other time in history. Joe doesn’t really give a shit about surveillance so long as he still has his six pack.

      The press might actually care about being attacked, but they will weight that attach against their access to power (which is how they make a living). I don’t expect to see fireworks there either.

      1. There is no guarantee of action but I think they are breaking a rule of expansion of power. You can trample on little people on the margins all you want and then allow mission creep into the majority. Nobody cares if you violate the rights of dangerous inner city minorities or torture terrorist, but when you go after the normals people get pissed. Will there be anymore than pissing and moaning? Maybe not now but if the response from the government is to double down on authoritarianism it might not be pretty.

  14. Seven years — a period of serene, unbroken continuity between George W. Bush, who was correctly seen as an enemy of civil liberties, and Barack Obama, who was mistakenly taken (by me, among others) to be their friend.

    First off, BOOOOOOSSSSSSSHHHHHHH!!!!111!!!!1!!

    Now that that’s out of the way, why anyone believed Obama would be friendly towards civil liberties is beyond me. Sure, he made some soothing noises in that general direction, but anyone who researched him should have known better. All I saw when I looked into his past was a mostly blank slate whose entire raison d’etre seemed to be to seek higher and higher political office and the accumulation of power. No one who fits that description could ever be described as a “friend of civil liberties.” Anyone who believed otherwise is a fool.

    Remind me why we have a Constitution?

    Barack has to wipe his ass with something.

    1. The only thing I agreed with Senator Obama about was when he said, “That fucking woman has no business being president.”

  15. Chapman, 5 years later, is done making the “libertarian case for Obama” or at least until the next logically fallacious bandwagon comes to town for Steve Chapman to hitch a ride on. People like Chapman are an unfortunate consequence of groupthink, they don’t need any reasoning to support their opinions. Chapman though, is particularly pathetic since he gets paid to offer reasonable opinions. Fucking-A Reason Magazine, fire this clown.

    1. Steve Chapman is a columnist and editorial writer for the Chicago Tribune.

      He doesn’t work for reason. Although they could stop re-publishing his columns.

      1. A newspaper? KOCHTOPUS!!

  16. “A presidential spokesman offered the soothing assurance that the phone surveillance program “has been a critical tool in protecting the nation from terrorist threats.””

    By now it should certainly have occurred to everyone that even the president and his handlers are simply parroting what the NSA PR directors are instructing them to say.

    I am pretty certain that whomever is elected president next will be subject to the same treatment, whether it be Rand Paul or anyone else.

    I also fear what may happen to them if they actually tried to stop NSA from these activities. How about you?

  17. George W. Obama and Barack Hussein Bush are one in the very same.

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