"many dubious actions have been 'legal' but not necessarily right or just."
This.
It annoys me to no end when politicians insist that what the GCHQ is doing is legal, which just makes it worse - because it means it's not just a single agency overstepping its bounds and spying on us all, instead it's the entire system which is warped.
> It annoys me to no end when politicians insist that what the GCHQ is doing is legal, which just makes it worse - because it means it's not just a single agency overstepping its bounds and spying on us all, instead it's the entire system which is warped.
If the GCHQ is acting in accordance with the law, even if the law is bad, then there is accountability to the public through the Parliament, and presumably the public, if they think the law is bad, can change the behavior by changing the Parliament.
If the GCHQ is doing bad things independently and disregarding the law as adopted by Parliament, then not only are the bad things being done as in the above case, but there is a fundamental breakdown in democratic governance.
Since the problems in the latter are a superset of the problems in the former, I'd say its hard to say that the former is worse.
...if they think the law is bad, can change the behavior by changing the Parliament.
If the people voted for one law allowing surveillance, then yes, your point is perfectly made. But these behaviors cropped up extra-legislatively through tortured interpretations of existing law, which implies there is a much bigger problem with western liberal governments circa 2014.
I'm not a historian, but this tendency to do a creeping, secret expansion of power based on secret legal interpretations of existing law feels very new, and very insidious, and I believe is actually the greater problem than the surveillance itself, and it's not clear at all that Parliament could pass a law fixing that problem.
My view is that if it were illegal then as soon as it became public knowledge then effort would have been made to stop it. I.e. It's a breakdown of the enforcing of the law but not a breakdown of the democratic process. Instead we've had a couple of years where the only thing any politician ever says is "well it's legal..." which is a breakdown of the democratic process (since the law in a democracy is meant to reflect the will of the people saying that something the people are protesting shouldn't be legal is ok because it's legal is clearly a non argument!)
It does represent the will of the people. The people aren't voting for change and didn't do so when any of the "draconian" laws were passed, despite it being public knowledge. So this is perfectly what democracy is - popular opinion, not special interests determining the laws. If you're sure your fellow citizens are mostly wrong, then you
should reconsider whether you fit in among them. Maybe other countries have people who value privacy greater. For UK citizens this is easy, just go to a European country.
So you're saying the UK government held a vote asking "Do you want to be surveilled?" and a majority of citizens answered in the affirmative? I can't remember anything like that happening here in the US.
I'm not sure I agree it's _worse_. An agency acting extra-judicially with no consequences is a much deeper violation of the concept of democratic government than shitty legislation is. Shitty legislation is theoretically transparent and accountable to the electorate (you can read the penal code and your representative's voting record)[1] in a way that gov't organizations that break the law are not.
[1] Yes I'm aware that the size and complexity of the penal code makes exercising this transparency much, much, much more difficult, but that's a separate (and very important) issue entirely. Same goes for the warping of legislative accountability towards campaign donors.
Maybe legality is a bit of a red herring anyway. A spy agency has to do things that would be normally illegal, and needs to maintains secrecy that would make proper investigation by the police impossible. In the absence of facts the public tend to judge things on how "tasteful" they find an action rather than something more concrete. A lot of people simply don;t have a problem with spys watching web cam footage or monitoring SMS. It takes a certain understanding to realise how wrong the spying is.
As a particular John Oliver once said, and I paraphrase, "Mr. President, we're not saying you broke the law by collecting people's phone records, we're just saying it's a bit weird you didn't have to."
I'm not sure why an article that cites two US Court of Appeals judges with opposing views on the issue provides any indication of what the Supreme Court might do. Especially since the view for which the article is titled, which presumably is why you linked to it, is actually the judges view of what lawmakers should empower the NSA to do, not what is legal for the NSA to do under existing law. I'd certainly agree with the "don't hold your breath" sentiment for other reasons, but the article is a complete non-sequitur on the point.
I read that story yesterday, and I somewhat brushed it off as one judge's view. Thankfully that guy doesn't not sit on the Supreme Court, which is where all of this is headed.
I'm actually heartened by the unanimous decision this past summer where the SC ruled against the carte blanche searching of cell phones when the cops make an arrest. The Chief Justice wrote the opinion and came down hard on the government. He actually wrote "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime...Privacy comes at a cost."
Ironically, I think that decision is actually quite technologically ignorant. The Court equates data in the cloud with local data while ignoring the massive legally relevant technical distinctions between the two kinds of storage.
Could you expand on how this non-distinction could lead to bad things for citizens?
Before a warrant, this non-distinction protects you, because this would be taken as a search of your personal effects.
If there's a search warrant, then the government has the powers to search your effects independent of where they are, so nothing's really changed and it aligns with the spirit of the law (instead of trying to hide behind technicalities).
The law is rooted in "[objectively] reasonable expectation of privacy." Someone who is technically ignorant can't see past the layer abstraction presented by the software: a file on cloud storage appears in the photo viewer alongside files on the local flash memory. But the technical reality is that cloud data is exposed to potentially hundreds of people at the ISP and service provider. Not only that, but potentially data-mined on top of that. Only if you're technologically ignorant of this fact could you reasonably expect that the data is really private.
Look at it this way. If your pot growing operation is visible from your neighbors window (just one person!) we say you can't reasonably expect privacy. Dillon v. Sup. Ct. How can we say data visible to your hundred closest sysadmin friends at CloudCo is private?
This.
It annoys me to no end when politicians insist that what the GCHQ is doing is legal, which just makes it worse - because it means it's not just a single agency overstepping its bounds and spying on us all, instead it's the entire system which is warped.