[lambda]

Do you really think that tailored custom devices for spying on particular people of interests exceeds their constitutional grounds?

Would you object to the NSA or CIA planting bugs that record audio or video on targets of interest outside of the United States? Does that exceed their constitutional grounds? How about if they supplied these to law enforcement agencies which had valid search warrants?

I have plenty of concerns about the constitutionality of certain NSA programs (such as collecting metadata on everyone, regardless of prior suspicion or search warrant), and some of the techniques they use (tapping all of Google's fiber traffic between data centers, putting backdoors in international standards), and I find these revelations technically fascinating, but I don't find any fundamental constitutional issue with them using clever, advanced technology for spying on valid targets.

[a3n]

> Do you really think that tailored custom devices for spying on particular people of interests exceeds their constitutional grounds?

Do you really think that an agency that practices unconstitutional mass surveillance (or unconstitutional anything) would never use these recently revealed capabilities unconstitutionally?

[lambda]

No, but I don't think that the fact that they have such capabilities is, itself, evidence that they have used it unconstitutionally.

I think that it's important to distinguish between behavior that is bad (unconstitutional, illegal, or immoral) and behavior which is acceptable. Saying "It's really quite hard to stop admiring the technical lengths the NSA has gone to to exceed their constitutional bounds" implies that the USB cables equipped with radios are themselves unconstitutional, or must be used in ways that are unconstitutional, and that's not the case.

It's important when having these kinds of discussions to keep in mind the legitimate, legal, constitutional work the NSA does as well. Not everything they do is illegal or unconstitutional, and spreading the outrage from the bad work to the good helps no one at all.

Outrage at Dual EC DRBG is absolutely well founded. Outrage at mass metadata collection is absolutely well founded (though there is a bit more of a debate to be had there, because metadata is something that a third party must necessarily have in order to route your calls/packages/packets/emails properly, and so doesn't exactly fall under your personal effects that are fully protected by the fourth amendment; I believe that mass metadata collection is still immoral, but the constitutional argument is harder to make). Outrage at secret courts with no oversight, and national security letters that forbid even revealing details about exactly what and how much information the government has access is absolutely well founded.

But getting outraged because spies create spy gadgets is, well, kind of silly. Get outraged when they plant these gadgets on innocent targets, on political targets, on allies, on economic targets, sure. But there should be no reason to get outraged at their mere existence.

[codex]

As far as I know, none of the NSA's practices have been ruled unconstitutional. At best, the courts have sent mixed signals, and the collection of metadata was explicitly decreed constitutional by a precious Supreme Court ruling.

[intslack]

Not exactly, you have to stretch pen register authority pretty far to extend it to the NSA's bulk programmatic uses.

http://www.lawfareblog.com/2013/11/problems-with-the-fiscs-n...