[nathan_long]

OK: once he got in office, it turned out that watching everyone seemed like a good idea.

But here's the thing: it's unconstitutional. It's illegal.

"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".

Meaning: 1) You can't read my email without a warrant and 2) you need specific suspicions of me to get one.

Any interpretation that says the grocery list in my pocket is covered by the fourth amendment, but every electronic communication I make is NOT covered, is insane. "Houses, papers and effects" was the writer's way of saying "everything I can think of belonging to that person." Email and phone metadata and GPS location weren't imagined, but can you seriously say they would have been excluded?

So: balancing security with privacy is a hard thing. It is. But pooping on the constitution isn't a solution.

You want to surveil everything? Say so openly, explain your case, and try to repeal the fourth amendment. We're America: we decide by voting.

Secretly discarding the highest laws of the land is tyrannical, whatever the justification.

[rayiner]

This has been debunked to death. The issue isn't "houses, papers, and effects" not encompassing e-mail, but the "belonging to that person" aspect. Phone metadata doesn't "belong" to you. It belongs to your phone company. They generated it, they store it--you never even see it. It's also quite questionable how much of say your Facebook data "belongs" to you. Or your GPS location data. It's about you, but much or all of it is generated by some company and stored by that company, and you are often even not aware of it nor do you have access to it. You have little to no recourse if they lose it, destroy it, or misuse it. You can't even make them let you see it.

Indeed, I strongly agree with your use of the word "belong" because I think the use of "houses" and "persons" purposefully puts the 4th amendment on a strong property rights foundation.[1] But viewing the 4th amendment through the lens of property rights (i.e. "everything I can think of belonging to that person") makes most of what the NSA is doing quite legal! Things that are about you do not necessarily belong to you. If I write down every time my neighbor enters and leaves his house, that's mine, not his. Is Facebook tracks what you click on and your cellular company tracks your GPS location or your phone company tracks who you call, that's their data, not yours.

[1] The prevailing Supreme Court view of the 4th amendment is broader than this property rights view, but still embraces third party doctrine which makes much of what the NSA is doing legal. And certain Justices seem partial to the property rights formulation.

[dwaltrip]

Intelligence agencies automatically gathering and storing all data generated by mankind is very different from manual surveillance of an individual's house. I find these types of comparisons rather misleading. The changing nature of technogoly and the increasing tendency for highly personal data to be generated and then vacuumed up by the NSA & friends strongly implies, to me at least, that, in order to protect the sanctity of the individual's personhood as well as democracy itself, this data needs to withheld/protected from powerful institutions. Especially those that can kill you/lock you in jail. Even if the data isn't "owned" by the indiviudal in the traditional sense.

[nathan_long]

1) Even if you are correct about eg, metadata, they are also snooping your internet requests, emails, etc, simply because they pass through infrastructure not belonging to you.

Do you think the Founders would have said "if you send a message via Pony Express, you authorize the government to read it"?

2) "If I write down every time my neighbor enters and leaves his house, that's mine, not his." True, but one person writing down what one other person does is hardly scalable or powerful. Computers recording everything everybody does creates much larger potential for analysis and abuse. We don't know what the Founders would have said about this, but I oppose it on the grounds that the risks for tyranny are enormous.

[argumentum]

This is all true, but what if the government compels Facebook to hand over it's data about you? Clearly that is a violation of the fourth amendment?

[rayiner]

A subpoena requesting documents relevant to an investigation is presumed reasonable under the 4th amendment. Generally, the government can compel you to turn over information relevant to an investigation of someone else. The subpoena power is very broad and also very old (predating the 4th amendment).

If the government hacked into Facebook's servers and took the data, that would be a violation of Facebook's 4th amendment rights, but it still wouldn't be a violation of yours.

[sroerick]

No -- the FISC has ruled that the third party doctrine makes NSA spying legal. The Supreme Court has not ruled on mass metadata collection.

[rayiner]

Since the Supreme Court doesn't give advisory opinions, agencies always have to make educated guesses about whether the Supreme Court would find some course of action legal. E.g. The Supreme Court did not find the healthcare mandate legal until after attempts to implement it were challenged. In this case the NSA can very reasonably expect that the Supreme Court wold find metadata collection legal as a straightforward application of Smith v. Maryland.