[tomp]

> Earlier this year the Brazilian government used the courts to block WhatsApp for 72 hours as it seems they did not like being unable to peer into the private communications of their citizens. This happened again just a couple of weeks ago and it seems what the government cannot control should be blocked or even banned.

It's very hypocritical when an American criticises foreign "corrupt, oppressive" governments for "peering into private communications" by using public legal means against US corporations, whereas the US government has done exactly the same thing (using legal and illegal means) but you just didn't know about it (because most Internet companies are based in the US).

[I'm not sure that the author is an American, but there are undoubtedly many Americans that share this attitude.]

[rmc]

Remember: if you're a non-US citizen outside the US, then the US Constitution protection against search (4th Amendment) doesn't apply to you! We have no 4th Amendment protections!

[jnbiche]

I'm as opposed to mass surveillance as anyone on HN, but I've been surprised by this kind of reaction. Why are non-citizens surprised at this lack of constitutional protection? Are there actually any countries whose constitutional protections apply to non-citizens and/or non-residents? I think that would be pretty cool and progressive if it were the case, but I'm not aware of any.

[furyg3]

I've said it before, but why WOULDN'T a country provide protections and rights to non-citizens (residents or not) that it outlines in it's constitution? After all, the US founding fathers believed it to be "self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights". If it is always wrong for a government to do certain things, then clearly it is wrong for a government to do those things no matter to whom they are done.

Morally it's clear that you should treat others by the standards that you believe to be universal.

A government's ability to guarantee and protect these rights is, of course, limited by its geography. Other people may have different value systems which mean they protect a different set of rights than those defined in the US constitution (although the DoI does declare them to be 'unalienable'). But that's not what people are talking about when they talk about US government spying internationally. The US government violates rights it considers to be universal, and many of the people who's rights are violated are in countries with similarly enshrined values, and also who's countries are not at war with the US.

[MereInterest]

Completely agreed, especially with the US Constitution's philosophy of restricting the government, rather than providing rights for citizens. A government can only guarantee rights for citizens that are under its jurisdiction, but it can always forbid itself to take actions.

[zaroth]

I think you're missing a key tenant of the purpose of government. Of the people, for the people, doesn't mean all humanity, but rather the people who are being governed and both pay into and benefit from the system. Government being a collective outsourcing of the force required to achieve some common good, again, for the people doing the outsourcing.

That's not to say there couldn't be ratified treaties between countries which give up some measure of sovereignty in order to set some better ground rules. We ratify all sorts of treaties like that, Obama ratified (by executive order, which I didn't know was possible) the Paris accord just last week. But I don't know of any treaties the US has signed to limit non-domestic wiretapping.

[justthisonetime]

And I call BS when I see it. A nation state is morally responsible to it's citizens to uphold the law and order and protect it's citizens [from threats internal and external]. This is funded by the tax money collected by the state from it's subjects. Nation state may, willingly provide protections and other services reserved for it's citizens to others. But concept that it must or should is flawed at heart. World today remains a hostile place and the game for supremacy remains as strong as ever.

[GunboatDiplomat]

This is obviously true. It's equally obvious that the neoliberal consensus is opposed to this and seeks to substitute a globalist fantasy.

[martindelemotte]

The French constitution references the Declaration of the Rights of Man and of the Citizen which covers "all men, French, foreign, prisoners and enemies".

[jnbiche]

So do the protections afforded by the French constitution apply to "all men, French, foreign, prisoners and enemies"?

[jacquesm]

Yes, it does. There was a ruling long ago (early 1970's) which led to the formal inclusion of the Universal rights of man in the French constitution. It was only referenced (think of that as a hyperlink) and this reference was expanded to include the text in full.

We covered some of this in our class on 'staatsinrichting' where not only the Dutch but also other important European countries organizations were discussed. This one stands out for me because it seems that at least one European country got this one exactly right.

[martindelemotte]

It's interesting to note that since the revolution the French legislators have had an universalist view of things. The goal was to spread the enlightenment ideas to the world (who said the French weren't pretentious).

Of course in practice things haven't always followed the theory. For example in French colonies, although indigenous people were supposed to enjoy the same protections than the French colonists, it didn't happen that way. The excuse was that they needed to be put "up to speed" first.

[martindelemotte]

I'm not a constitutional lawyer but a subset of the protections seem to apply. The French constitution does an "include" of the Declaration of the Rights of Man and of the Citizen. A constitutional court decision of 1971 has confirmed its applicability.

[dunkelheit]

As a non-US citizen I don't expect much protection from US constitution. Historically, it had peacefully coexisted with many kinds of discrimination. But I'd rather US government didn't record my communications, constitutional or not. It is not a constitutional matter, it is a human rights matter.

Of course, enforcing it is problematic because the USA is the most powerful country in the world and other governments are not keen on protecting their citizens' rights in this regard. On the contrary, they seem acutely envious of US surveillance powers and are trying to get some of them themselves.

[jnbiche]

> But I'd rather US government didn't record my communications, constitutional or not. It is not a constitutional matter, it is a human rights matter.

For the record, I agree 100%.

[GunboatDiplomat]

The US has an obligation to spy to the maximum extent possible on foreign citizens and entities. Just as every foreign government has the same obligation to spy on the US.

[MereInterest]

Do we? I would say that the obligation of the US government is to follow the goals set in the Constitution as much as possible, until such time as the Constitution is amended or replaced. As much as spying does "provide for the common defence", it is defensible. When the spying alienates allies, it is too much. When the spying forces foreign-held companies to pull out, can it really be said to "promote the general Welfare"?

Why would there be such an obligation for unlimited spying?

[GunboatDiplomat]

Yes, the US government has an obligation to maximize national prosperity and national security.

Spying is the cheapest and most effective way to provide for these goals.

[kuschku]

> Are there actually any countries whose constitutional protections apply to non-citizens and/or non-residents? I think that would be pretty cool and progressive if it were the case, but I'm not aware of any.

Yes, Germany.

Almost all of German constitution applies to any "Person", not even just any human.

And the government has the constitutional requirement to help ensure those rights are granted to people globally.

[cderwin]

FYI most of the U.S. constitution only uses the word "person" as well, but legally persons outside the U.S. who are not citizens have no standing.

[Tomte]

In Germany there is a distinction between citizens and non-citizens.

The most important basic rights are enjoyed by everyone.

Only citizens enjoy some basic rights (freedom of assembly, for example).

But there is a "catchall" basic right (Article 2, paragraph I) that can be used by non-citizens to claim those rights, as well.

The difference is that this catchall basic right is weaker when weighing it against conflicting basic rights (practical concordance) and it has imminent limitations (statutes can override it – although that must be useful and proportional).

[rmc]

Germany had a history of the government claiming "those people there aren't 'people' hence the rights don't apply to them". I suspect the courts might take that into consideration if the government tries that line again.

[jnbiche]

That's impressive. I guess that's the difference between a modern, progressive constitution written over 2 centuries ago versus one written 50 years ago.

Semantic point, do you differentiate between a "human" and "person"? This may be a translation issue, but to me there's no practical difference between the two.

[seren]

I am ignorant of the German constitution, but legally there are more "persons" than humans.

The most famous example is the concept of corporate personhood.

See also : https://en.wikipedia.org/wiki/Personhood

[jnbiche]

You're absolutely correct. I was thinking of what is called natural personhood. But I'm curious specifically how the German constitution differentiates the two.

[Sylos]

To me, "human" is a member of the human race, "person" is any creature with consciousness, feelings, personality. So, if an ape/dolphin/alien/robot/whatever is intelligent enough, they are a person to me.

This is my opinion, though a lot of it was shaped by the German education system, so it's definitely possible that when this question becomes actually relevant in a decade or two that a judge might rule this the official interpretation.

[kuschku]

> but to me there's no practical difference between the two.

Well, just in case Lt.Cmdr. Data ever comes to Germany ;)

[pjc50]

ECHR applies to European governments as regards anyone who is a human, including nonresident nonnationals. This was used to make claims for rights violations against Iraqi nationals during the occupation by coalition forces.

Why does it apply this way? Think of the history of the Third Reich violating the rights of noncitizen nonnationals.

[lhopki01]

In the UK the Human Rights Act applies to all Humans (the current government is trying to change this but it still applies) The notion of human rights applying to only citizens is very strange to me.

[pjmlp]

I am surprise that even citizens think that they are safe from mass surveillance regardless of what the country's constitution states.

Secret services obey no law other than their own internal regulations, regardless of what people might see on TV series.

[rmc]

> Are there actually any countries whose constitutional protections apply to non-citizens and/or non-residents?

Charter of Fundamental Rights of the European Union protects you too! If you're non-US & non-Canadian, and use Facebook, then your data is under the control of Facebook Ireland Ltd, in Ireland. And the CFREU will protect you!

[GunboatDiplomat]

Duh? That's trivially true. Similarly, as a non-EU citizen outside the EU, the freedom to travel within the EU does not apply to me. Or, as a non-Canadian outside Canada, I cannot receive medical coverage from their national health care plan.

[naasking]

> Duh? That's trivially true. Similarly, as a non-EU citizen outside the EU, the freedom to travel within the EU does not apply to me.

1. That's not a valid analogy. The EU has no control over how people travel in other countries and any restrictions they may face. The US government does have control about how it treats people outside US borders. They're not remotely analogous.

2. The US constitution could easily be interpreted as a way that the US government should treat human beings, which means the 4th amendment describes how they should approach search and seizure of any person's property, wherever the US government has influence. Given the internet, influence now extends to computers across borders.

[GunboatDiplomat]

>2. The US constitution could easily be interpreted as a way that the US government should treat human beings, which means the 4th amendment describes how they should approach search and seizure of any person's property, wherever the US government has influence. Given the internet, influence now extends to computers across borders.

If you were willing to ignore English grammar and definitions, and several centuries of precedent, and many many other things, you could interpret it that way. But it would be ridiculous to do so. The Constitution is "We the people" laying down a basic framework for governing ourselves. It lays out how the government we create will act towards us. It specifically puts foreign affairs (how the government will act towards not-US people) under the jurisdiction of the President and does not extend rights to them.

This is well trodden ground. Your interpretation is facetious.

[naasking]

> If you were willing to ignore English grammar and definitions, and several centuries of precedent, and many many other things, you could interpret it that way.

Wow, talk about being uncharitable. I'll just ignore your insult that I'm an ignoramus talking out of my ass and just address the content: the Supreme Court has ruled only twice on the interpretation of "the people", but there is still considerable debate over its true meaning [1].

The declaration of independence also makes a broad statement that all men are created equal with unalienable rights. It's not at all a stretch that the bill of rights is an enumeration of how a government should preserve some subset of those rights. This is precisely how constitutional protections have been interpreted in other countries, for instance.

> The Constitution is "We the people" laying down a basic framework for governing ourselves.

It's actually "the People" in the constitution and the declaration of independence when referring to the governed, and only "the people" in the bill of rights. Capitalization matters, particularly if we're talking about intent.

Further, the constitution lays the basic framework for establishing a government, and "governing yourselves" is only ONE purpose. Or did you forget about "provide for the common defense" aspect of government? It's in the opening paragraph of your constitution.

> This is well trodden ground. Your interpretation is facetious.

No, this is objectively not well-trodden ground, and you're kind of acting like a dick. I recommend not doing that.

[1] http://harvardlawreview.org/wp-content/uploads/pdfs/vol126_t...

[GunboatDiplomat]

I'm not being a dick, you're being uncharitable.

>The declaration of independence also makes a broad statement that all men are created equal with unalienable rights.

So? The Declaration of Independence is not part of the laws of the United States. Its statements have no bearing on them.

> This is precisely how constitutional protections have been interpreted in other countries, for instance.

Luckily, we're not talking about other countries.

> Or did you forget about "provide for the common defense" aspect of government?

That aspect would argue more that the rights enumerated in the Bill of Rights are applicable by the US government only to US citizens, residents, or visitors, and not to all people everywhere. The Insular Cases support this view.

>No, this is objectively not well-trodden ground, and you're kind of acting like a dick. I recommend not doing that.

Yes, it is well trodden ground. That you refuse to acknowledge it does not make a difference.

[rmc]

Other countries' constitutions cover non-citizens.

[aianus]

There is no national health care plan in Canada. Each province has its own independent healthcare system.

[GunboatDiplomat]

Whatever, the same principle applies.

[Draiken]

Honestly I see this whole WhatsApp debacle as a big old scape goat.

They're putting a big corporation on the spot so they can extort money from it, make people talk about this and ultimately it's just a means to keep spying on every single brazilian citizen.

People say WhatsApp is evil for not cooperating now and pretend the government is a pure entity only seeking good.

Meanwhile they forget we probably just had a silent coup for the presidency, the whole government is corrupt and so is the justice system that is enforcing these rules. I see talks about how evil the americans are for not helping the poor brazilian government, pretending like before WhatsApp existed crime in Brazil was almost non-existent. It's honestly sad.

The best part is that this only generates animosities between citizens, who attack each other because they support "red" or "blue" allowing the corrupt to keep doing whatever they want.

The whole world has shown exemplary individuals that despite living in their corrupt environments stand up and take a stand for us all. Despite that we're stuck pointing fingers at each other with blind faith in our own corrupt governments.

Honestly you can even be right that the brazilian government is "legally" spying on us. That doesn't make it right.

And to say we the author "doesn't know about american government spying" seems extremely naive to me. We probably know more about how corrupt the US government is than any other government on the planet and I doubt he's not aware of that.

[JadeNB]

> It's very hypocritical when an American criticises foreign "corrupt, oppressive" governments for "peering into private communications" by using public legal means against US corporations, whereas the US government has done exactly the same thing (using legal and illegal means) but you just didn't know about it (because most Internet companies are based in the US).

Surely this is only hypocritical if the American supports his or her government's doing these things. (I am an American, and I don't support these actions, whether taken by my country or any other.) Surely you don't want to take the position that those ruled by a morally corrupt regime by that fact lose their right to protest corruption?

[geon]

It is not hypocricy unless they endorse the american governments actions.

[martinko]

Remind me, was that before or after they enabled end-to-end encryption?

[kbart]

Since WhatsApp is virtually a blackbox, their word for end-to-end encryption means nothing. Few 'bugs' in implementation and you have a nice backdoor.

[martinko]

True, but it would at least give them plausible deniability that they couldn't hand over plaintext messages, even if they wanted to.

[etatoby]

That's probably the entire purpose behind WhatsApp "encryption": to have their cake and eat it too.

[cderwin]

> Few 'bugs' in implementation and you have a nice backdoor.

This holds regardless of whether WhatsApp is a blackbox or not. Now, that doesn't make the claim of end-to-end encryption verifiable, but if you take Facebook's word for it, the bug bounty should be about as good a stalwart as there is against implementation bugs.

[dnzm]

> Few 'bugs' in implementation and you have a nice backdoor.

Just one would be enough, methinks.

[tim333]

It's kind of complicated. There were Brazilian bans in 2015 and 2016. Whatsapp has had encryption since 2012 but it was a bit half arsed. It now seems good. I guess the courts could still order the metadata of who's been calling who though. It's a bit unclear what exactly the courts did order.