[trunnell]

Hmm, I think that confuses the point.

The NSA programs are either constitutional or not. Wyden was essentially asking, Is this program constitutional? Does it collect data on US persons without a warrant?

Clapper swore an oath to the Constitution, so he should always be able to answer that question truthfully. "Yes, this program is constitutional. No, it doesn't collect data on US persons."

The fact that he couldn't say that is the issue.

Secrecy is not some magic sauce that makes a program constitutional. Secrecy doesn't free a program from legal scrutiny.

[dragonwriter]

> The NSA programs are either constitutional or not.

The idea that constitutionality, or any other question of legal interpretation, is a matter of objective fact which has a clear, crisp, true or false answer is, while a comforting illusion, not at all even remotely true.

[blueprint]

Whether or not warrants were obtained for their activities, is, however, an objectively verifiable boolean fact.

[mpyne]

Sure, but that doesn't help you either, as there are many other precedents besides NSA programs for situations where the government can compel a search without a warrant. This is permitted by that pesky little word "unreasonable" in the Fourth Amendment.

[mpyne]

As dragonwriter points out, simply "collecting data" is not necessarily unconstitutional, so your two equivalent questions are not congruent.

[trunnell]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. -Fourth Amendment, US Constitution

It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment.

Attempts to justify it that we've heard about so far, like the assertion that it's not a seizure until the data is "looked at" is clearly a post-hoc rationalization which, put nicely, strains credibility.

[mpyne]

> It's pretty hard to square the alleged seizure of all privately transmitted data with the Fourth Amendment.

"Seizure" would imply the government taking custody of something away from the owner, which is not what's going on during a bitcopy.

Search is closer, but you missed noticing one of the most important words: " ...against unreasonable searches and seizures".

In other words if the search can be construed "reasonable" for any reason (which is very much a "judgment call") then it is automatically Constitutional (even if it's not automatically legal, which can be a separate consideration).

Additionally the NSA is not seizing all privately transmitted data (which is in any event physically impossible). Either they have to be selective about what metadata is retained long-term, or they have to buffer everything but only for a short term in which case they are acting very much like a "common carrier" with an exceptionally bad problem of bufferbloat.

But either way, there's another problem: The data being "searched" isn't your data, it's someone else's data (at a different ISP or host) that happens to be bit-for-bit identical to the data you transmitted, which means any 4th Amendment claim would be theirs to make, not yours. So I would be careful about how strictly you try to read into the Fourth Amendment, as only the "judicial activist" interpretations of it would possibly exclude electronic surveillance of the type now done by NSA.

[trunnell]

So if it's perfectly constitutional and legal, why did Wyden feel the need to ask the question? And why did Clapper respond the way he did?

[mpyne]

You're arguing that it's obviously unconstitutional, but the logical inverse of that is not that it is obviously constitutional.

There is a very wide gulf between those two positions, a gulf where the constitutionality of those programs is up for reasoned debate (e.g., with Sen. Wyden's question).

But Clapper would have responded the way he did since disclosing "methods & means" of electronic surveillance is also illegal, and given the direct nature of the questions by Sen. Wyden could hardly have been properly evaded by the standard "can't confirm or deny" excuse the government always gives. In other words Sen. Wyden employed the same logic as the "warrant canary" you guys all find so fascinating :)