Is There Really a Violation of the Fourth Amendment?

[MineralMan]

I don't know, but here's my thinking on it, which appears to be the thinking of the courts who authorize things like the Verizon records being obtained. First, let's quote the Fourth Amendment yet again:

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.

It all hinges on one part of that Amendment.

The "unreasonable searches and seizures" thing is the way out for the government. It's why we have TSA searches, among other things. That phrase is the one that enables such things. If the search and seizure are "reasonable," then no "unreasonable search and seizure" has been done. The courts issue orders regarding whether the search and seizure is reasonable or not. It's the system we use in the US.

According to statements, the actual contents of the phone calls aren't being recorded and saved. Only the fact of the calls and the phone numbers involved. That information is record keeping that the phone company uses for billing purposes. It contains little information, really, and the FISA has granted permission through court orders like the one that was revealed for the NSA to obtain those records, so they will be able to match phone numbers that communicate with each other. The phone company normally deletes that information at some point, so the records are collected so they'll be available later for investigations They don't actually access the data to do searches of actual phone calls until they are investigating a particular issue, and they get a separate court order for that. That court order contains specifics of what they're looking for.

The contents of the communications are not recorded, according to statements by those collecting the information. I can believe that, since doing that would be very costly and would require large amounts of storage. I don't know this for certain, but it makes logical sense. In fact, the phone company that originates these records doesn't record the content of calls. It would be illegal for them to do so.

Similarly, websites like Facebook and even DU, maintain records of people who use their websites. Those records include things like IP addresses used by members, member email addresses, and similar information. If I recall correctly, they are required to maintain these records for a long period of time. Here's what sometimes happens:

1. Some member posts a threat against the President or some other public official, or posts something indicating that they are planning to commit some sort of crime.
2. Some other user sees this and recognizes the threat, and notifies the authorities about it. Often links to the offending post or statement are included in that report, or even a screen shot. We've seen that happen here, with regard to other web sites.
3. The law enforcement organization contacts the owner of the site and asks for information regarding the member who posted the threat.
4. In most cases, the owner of the site is happy to comply with the request, being concerned about the risk.
5. In some cases, as with a site like, say, Free Republic, the owner refuses to comply with the request because the owner agrees with what was expressed.
6. In that case, the law enforcement agency gets a warrant or court order demanding the information, and authorizing the law enforcement agency to go get the information.
7. The owner of the site is served, and either provides the information, or the law enforcement agency seizes it.

This happens all the time, and often leads to the offending person being found and questioned. The record-keeping is required, and is used when there is a reasonable cause to do so. A court order can be obtained if there is a reasonable cause to request it.

That simple case is not that dissimilar to the Verizon situation. There, the government got a court order to obtain all of the call records (not contents of calls) from Verizon, because there is probable cause to believe that some Verizon users communicate with people in planning terrorist or other activities. The records are obtained and stored by the government, because Verizon normally deletes them sometime after the billing cycle. The data is stored, and accessed when a particular investigation is warranted and a court order is obtained.

When there is probable cause, the government obtains another court order allowing them to investigate particular records and to see what numbers connected with that court order connect with what other numbers. No actual content is available, because it is not stored by Verizon. Each actual investigation requires its own court order.

That is what the government is contending that it does. If so, it doesn't meet the "unreasonable search and seizure" issue, and so is legal and Constitutional. There is probable cause to believe that some Verizon calls may be connected with unlawful behavior, so all records of calls are collected. Then, in specific situations, probable cause is used to get another court order to investigate within those records. That is what the NSA and the government say they are doing.

Is the government lying about that? I cannot say, because I don't know. If they're not lying, though, the 4th Amendment is not being violated, because no "unreasonable search and seizure" has been done. So the courts have ruled in these cases. Court orders are required for each step in the process. That's the system. Checks and balances have been applied, if we're hearing the truth.

Note: This was posted in another thread, but has been reposted, with changes, as an original post.

[stevenleser]

1. That's correct. No 4th amendment violation. Appeals courts have ruled on this again and again and

the SCOTUS refuses to hear these cases indicating they agree with the repeated appeals courts decisions ruling in the same way.

[MineralMan]

2. The courts have ruled.

That is the system. That is how it works. Legislators make laws. The Executive carries them out. The Judicial branch reviews the laws and their application when there is a question about constitutionality.

We have a system. It's all described in the same Constitution that contains the Fourth Amendment. It has checks and balances throughout. That is our system of government.

If we think it is not working properly, we, the people, have options. We are the final checks and balances. We can replace the people in the Executive and Legislative branches in our regular elections. We can take cases to the Judicial branch if we believe the Constitution has been violated.

It's a good system, and one that has worked, if sometimes slowly, for some time.

[reusrename]

3. I don't think about this stuff the same way at all.

First of all, the only folks eavesdropping in the classical sense are those who want to profit somehow, perhaps by trading on insider information or some such. That isn't what this type of spying is really used for.

The meta-data is collected in order to map our social networks.

There have been hundreds of doctoral thesis written on this subject.

Mapping social networks is the new scientific tool that is at play here.

This has MUCH more to do with the first amendment than it does with the fourth, IMHO.

Insurgencies, like OWS can be easily thwarted by government forces using this technology.

Google the keywords: thesis+insurgent+social+networks

The way this technology is currently being used by the government is fairly straightforward and has very little to do with Al Qaeda. If our citizens try to organize for change, real change such as economic and social justice, they are seen as a threat to the status quo, or more succinctly they are seen as insurgents. Just look at how ordinary citizens engaging in ordinary activities were treated by the NYC police in conjunction with the Dept. of Homeland Security.

Now I know that it is more popular around here to decry the public apathy and so forth, gives some folks a sense of superiority or something while allowing them to avoid confronting or examining the real issue here.

This stuff is new, and it is not being used for noble purposes. No crime fighting is being done here with this technology. Instead it is being used to silence the voice of the people.

Just try and keep an open mind and look into it a little bit. You and many others around here are sharp enough to catch on if you give it more than a cursory investigation on your own.

[KittyWampus]

52. another great post the deserves its very own thread. Please post this as an OP. It deserves discussi

discussion. You have actually helped me grasp quite a bit more regarding the recent news.

[msanthrope]

4. No--there is no violation here. The thing that most DUers seem to gloss over

as they post their outrage here and on Facebook, is that 'business records,' i.e. records you make with a third party, are not subject to the same "unreasonable search and seizure" standards that your personal papers are. Nor do you have the same privacy rights outside of your home as you do in your home. And the 4th amendment doesn't apply outside the US.

[MineralMan]

5. There is that, too.

The thing that some who are quoting the 4th Amendment are forgetting is that there is a process by which government obtains things like these records. They go to court and get a warrant or court order, which is the same thing, that permits them to do certain things. Part of the 4th Amendment is about just that. The other part is the phrase I mentioned, which includes the word "unreasonable." The court makes a decision whether a law enforcement agency's request to go get information is "reasonable," or "unreasonable."

The last part has to do with search and seizure of individuals and their property. In that case, specifics must be named in a warrant. In the case of the telephone records, that doesn't apply, since the records are neither the property of or in the possession of any individual. They are the property of the telephone company, and people will find that information in the contract they signed with that company. Those records belong to the company, not the individuals.

All of this is not saying that it's a good thing that the government is doing. I have too little information to make that judgment. It is simply saying that the 4th Amendment has not been violated, and all steps were taken, apparently, to do this data collection in a constitutional way. The court order is the evidence in this particular case. That is the step that makes it legal, whether it's a good thing or not.

[reusrename]

7. There are really two different types of data being seized.

Any and all digitized communications are also being captured and stored. It is not just the phone call records.

[MineralMan]

9. Perhaps. The instant situation involves the Verizon records, though.

One thing at a time, please.

[msanthrope]

10. With the issuance of a court order, the issue is closed, unless someone can point to a specific

injury that they believe has come from a violation of their rights.

[MineralMan]

17. Any affected party can sue in federal court, claiming that the court order

was issued in error and should be rejected. That suit can go clear to the Supreme Court, and has. That court, which is the court of last resort, has already ruled that things like this are constitutional. That's the end of the legal road.

[msanthrope]

25. Well...not just 'affected' but 'injured.' You must have standing to sue, and

to do that, you must be able to show a cognizable injury, or the imminent threat of said injury.

[MineralMan]

32. That's true.

[reusrename]

6. It seems like an intentionally obtuse response.

If what these whistleblowers are talking about is all true, then of course there are thousands and thousands of violations all the time.

There is just no way to make the claim you are making.

There is no policing or oversight, is there?

Everybody should be able to agree on that at least, right?

[msanthrope]

8. I'm sorry, but what claim do you have a problem with? Be specific. nt

[reusrename]

22. From what I understand...

in addition to the meta-data and phone record, the government is also seizing the actual content all of your digital communications.

One of the serious charges made by the whistleblowers is that this stuff is not being secured properly at all. There is nothing to stop anyone with the proper clearance from snooping into anything. There are no safeguards once the government has their copy of your conversations. They let anyone with the proper security clearance have access to them. Without any type of warrant being necessary. IMHO this would be a violation of the fourth amendment. Peeking at your email for no reason, for example.

As a practical matter, I don't see this as too much of a concern, I'm sort of agnostic on how this capability can be used to enhance our national security. Maybe it can be useful against really stupid terra-ists that discuss their crimes through email or something. (It should be obvious however, that this kind of wide-open capability does leave the door wide open for all manner of criminal conduct, by all manner of people who make their way into obtaining the right security clearance, to go completely unchecked, which is sort of the overall state of our society right now, anyhow.)

To me, the use of the legally obtained meta-data to map social networks is more of a threat to freedom and democracy than listening in on individual conversations.

[msanthrope]

33. Could you cite that--that the government is "seizing

the actual content of all of your digital communications?" Because it sounds a bit incredible, perhaps the source would provide context?




You wrote---

To me, the use of the legally obtained meta-data to map social networks is more of a threat to freedom and democracy than listening in on individual conversations.

Indeed. I suspect many on Facebook are complaining about just that.

[reusrename]

36. There's been plenty of information on this over the years.

There was a federal case dismissed in 2006 after the congress gave retroactive immunity to the telecoms.

http://en.wikipedia.org/wiki/Room_641A
https://www.eff.org/files/filenode/att/presskit/ATT_onepager.pdf

Yottabytes of data are being store in Utah.


http://en.wikipedia.org/wiki/Utah_Data_Center


Glass prisms info on reddit.

http://www.reddit.com/r/technology/comments/1ftwhd/from_2007_the_nsa_had_installed_glass_prisms_on/

[msanthrope]

37. That would be in 2006...do you have anything more current? nt

[reusrename]

38. huh? you mean like today's news?

wtf?


on edit> the reddit link was opened a couple of days ago and folks are still posting to it afaik.

[msanthrope]

40. Ok--redddit is not an actual news source. Do you have anything more current

that indicates that actual content is being stored for everyone?

[reusrename]

42. If you don't want to believe it, I can't force you to.

Obviously, the facts are too much for some folks to assimilate. I'm cool with that.

[msanthrope]

43. I'm just asking for an actual cite from something approaching a news source. nt

[reusrename]

48. I know what you want. You want to be able to deny the truth staring you in the face.

Why do you need my help with that?



from a year ago:

http://www.democracynow.org/2012/4/20/whistleblower_the_nsa_is_lying_us

[msanthrope]

61. William Binney claims a lot of things are possible, but does he have any

proof that this is going on?

[reusrename]

66. There is no proof that the internets really exist at all....

... there's just this series of tubes

[msanthrope]

71. Well, now you're just trying to convince Agent Mike that you aren't a threat. nt

[reusrename]

72. I was never here.

[randome]

20. The 'policing and oversight' occurs with all 3 governing branches.

Maybe the process could be more transparent but there definitely is some oversight.

[hr]
[font color="blue"][center]Stop looking for heroes. BE one.[/center][/font]
[hr]

[reusrename]

23. Well, that's not what the whistleblowers are saying.

Anyone with the proper security clearance can look at anything they want without any oversight.

This seems to be a problem.

[randome]

26. That's what Snowden is claiming.

But he is hiding out somewhere (after stating "I'm not going to hide&quot so I'm not sure how much validity to give his allegations.

[hr]
[font color="blue"][center]Stop looking for heroes. BE one.[/center][/font]
[hr]

[reusrename]

39. Do you have any source for any official denial of this claim?

I don't think anyone has officially called this claim into question.

Have they? I honestly don't know.

[randome]

44. Not so far as I know.

They're probably trying to find out how Snowden got documents to Greenwald in the first place.

Obviously things are not fool-proof at NSA. On the other hand, since Greenwald says he was talking with Snowden back in February -before Snowden started working there at his current position- it's starting to sound more like Snowden was a kind of very determined spy.

[hr]
[font color="blue"][center]Stop looking for heroes. BE one.[/center][/font]
[hr]

[reusrename]

51. It costs me nothing to give him the benefit of the doubt.

Whether he is a hero or a traitor will not really have much impact at all on my perception of reality.

[backwoodsbob]

58. but you gloss over the other part

probable cause.

Do they have probable cause against every Verizon customer in the country?

[msanthrope]

67. You don't need probable cause for pen register data. nt

[zipplewrath]

11. Outdated

The real problem here is that the 4th is outdated in its language. This conflict is over the same problem as the 2nd amendment folks have. You have language written in the context of a 18th century world trying to be applied to a 21s century reality. Note, that the BoR doesn't even mention privacy, while apparently trying to protect it. So you have a conflict between those that want a more narrow definition of privacy, and everything else is open to scrutiny by the government, and those who want privacy to expand with the technological realities of an every expanding universe of communications, records, and information in general.

So the 21st century question is really this. Does a collapse of privacy come from a tyrannical government, or does it CAUSE a tyrannical government.

Power tends to corrupt we are told, so it would seem that as the potential power of a government expands, so must the restrictions to constrain and contain it.

And everything that happened to Richard Jewell was "legal". But should it have been? Remeber, there is no power that has been granted to the government which has not been abused.

[MineralMan]

13. You are correct, of course, but that is the document. It is what it is.

We have legislatures and courts to keep the rules up to date. Whether they do a good job of that is subject to individual interpretation.

HOWEVER, the Constitution, in its main body, establishes the very system that is in use today. So, if that system operates, and the checks and balances described therein are followed, then what happens is constitutional. Only if the Supreme Court says it isn't does it become unconstitutional.

It can be argued that the system no longer works, but that is the system under which the federal government operates. The system includes ways to decide on issues that are not covered in detail in the original document.

[zipplewrath]

18. And they are all government

All those bodies are suppose to be subject to our approval. As such, an arguement is to be made that relying upon a 4th amendment to protect us is foolish. It is A tool for us to use, but we have others. And one of them is objecting to those in power who use that power in inappropriate means. Even those that we currently trust.

We tempt those in power to use power in inappropriate ways when we do not pay attention, or are otherwise lazy in our oversight of them. And I was taught that the temptor was as guilty as the tempted.

[markiv]

16. it's not outdated

it doesnt take an einstein to figure out that 'secure in their papers' that protected someone's letters in an 18th century drawer, would also apply to someone's phone calls, or emails in their inbox

and phones have been around since the 1890s

why, all of a sudden, 120 years later, is this so confusing, after 120 years of relative clarity?

[zipplewrath]

21. How about Meta data?

Your papers are secure. How about whether you bought paper? How much Paper? From whom? How about how many letters you mailed? How many stamps you bought?

[markiv]

24. It's been possible to log phone calls since 1890

could be done manually at the switchboard - that is exactly the same as your 'metadata'

and computer reports of (at least long distance calls) have been availble since at least the 1960s, 50 years, in true 'metadata' form

name one example where the governemt did this

[Recursion]

28. Often, since 1890. SCOTUS has said they don't even need a warrant to

Edit: "constantly" makes it sound like they were doing it all the time to everyone, which was not my claim

[markiv]

30. cite it, please nt

[Recursion]

31. Smith v. Maryland

"petitioner voluntarily conveyed numerical information to the telephone company."

http://en.wikipedia.org/wiki/Smith_v._Maryland

[veveto]

75. One petitioner for 3 days vs. every American for years

different.

[zipplewrath]

46. Show how it is prevented from doing so?

Especially a government that isn't trying to build a legal case against you, but is in fact just trying to decide if they should consider you a terrorist. What stops a government from tracking your metadata? For as long as there has been commerce, the government has tracked metadata. Heck, it is how they handle taxes. The question is what can they do with that data? We have firewalls between the IRS, the census department, and Justice. It can't be used in court, but the other limitations have never been established. Even more so, metadata that they don't collect, but is collected by a private source. There's never been any limitation, other than legal counsel, on what the government can subpeona, only how and why they can.

Don't kid yourself, the 4th has been falling apart since the Aliens and Sedition acts and it has only begun to accelerate in the 21st century.

[msanthrope]

34. No--you are conflating personal papers with business records. nt

[markiv]

12. No, it's a DELETION on the 4th amendment

if you can justify logging every call from every citizen, you can justify anything

[MineralMan]

14. I can't justify anything. I'm not part of the system at all.

All I can do is describe the process, and the process is defined in the body of the Constitution.

[WinkyDink]

15. So a total blanket surveillance is "reasonable"?

[MineralMan]

19. I am commenting only on the Verizon situation and

similar cases where records are kept of the fact that calls are made and what connections are involved. As I pointed out, anything beyond that requires specific warrants or court orders. Since the federal court system has already ruled that gathering the call data is constitutional if the FISA court issues an order, such data collection is de jure legal. Individual warrants seeking to actually explore that data are issued, too. I don't know if those have been challenged in court, but I imagine they have.

Due process.

[WinkyDink]

45. Somehow I think the other shoe of the other major carriers will drop. And hey: Bush43 was de jure

President.

Bronx cheer to de jure---sometimes.

[Aerows]

27. Yes n/t

[reformist2]

29. Yes, there "really" is a violation. The extent of the violation is so vast it boggles the mind.

I think people are in serious denial about this.

[MineralMan]

35. You know, according to the Constitution itself,

there is only one body that can say whether or not there is a violation, and that is the SCOTUS. What I think, and what you think, I'm afraid, is irrelevant.

The Constitution defines itself and in that definition it defines a judicial body that makes all such decisions. It's a bit of circular logic, but the Constitution is a circular document. It includes the ways it can be tested.

[reusrename]

41. I'd just as soon not ask this Roberts' court this particular question.

We need a new court. We can start by impeaching Scalia.

[Orrex]

50. I'm not sure that Scalia's opinion on this is a foregone conclusion

Granted, he's a vile toad who should be thrown off the bench and disbarred--at the very least--but he's no fan of government intrusions into citizens' privacy. He railed against the recent decision re: DNA swabbing, for instance.

[reusrename]

53. Still, Scalia first, then Thomas!

kay?

[Orrex]

56. Only if we can remove Alito after that!

[MineralMan]

59. Impeaching Scalia, eh?

And just how do you suppose that's going to happen? You are aware that such an impeachment starts in the House of Representatives, right? The Republican-controlled House? We need to work our asses off to elect a Democratic majority. That's what we need.

GOTV 2014 and Beyond

[reusrename]

68. I think the midterms should focus on this issue.

We have a justice who claims he is above the law.

This is exactly what elections to the House should fought over.

It should be a national debate.

[MineralMan]

69. Every Congressional seat is a local election. Every candidate

has to address many issues, some of them local. This is just one issue that will influence people's votes.

Work in your own district to get Democratic voters to the polls. That is how elections are won. You can vote only in your district, and your influence decreases the farther away from your district you are trying.

[reusrename]

73. You are correct about elections. But we have to also consider human nature.

One third of a nation believes that God has abandoned America because we elected a black man as president and they will do everything in their power to oppose him.

Another third believes that he is our salvation, the only thing keeping us from complete and total ruin.

The remaining third are the folks who are going to decide our future, and they have been terrified, and for good reason. They do not share the hard political views of either side. They are good and patriotic people. Over the past few election cycles, they have been taught that we who support the current leadership have no message or direction. We are weak, disorganized, and dangerous and we don't offer any real alternative to the present status quo, which no one is very happy with. Since these folks in the mushy middle are scared, they see unity and strength when opposition forces crush a movement like OWS. They observe the unity and strength of right-wing obstructionists and they are drawn to them, because they think they are are stronger, safer.

Deep down, they are really scared. We can win them to our cause by showing a little unity.

That's all it takes is a little unity. For those who are in the middle, it is always seen as strength. These folks don't necessarily see independent thinking as strength, which is the way many of us view things.

In order to achieve any kind of unity, our cause must be just and noble or else it just won't float with Democrats. What could be more just or noble than cleaning up the justice system, starting at the very top?

[MineralMan]

74. Well, you do whatever you think best.

I'll be out knocking on doors again in 2014, just as I've always done.

Hi! Are you a registered voter?

No.
I can help you register to vote. It will take just a few minutes. Then you can make your vote count on Election day.

Yes.
Are you planning to vote in the upcoming election? It's very important that everyone turn out. Are you a registered Democrat?

Yes.
Then it's even more important. Did you know that the Republicans are trying to...?

No.
Did you know that so-and-so, the Republican state senator voted to...?

And so it goes. I have candidate literature, answers to every conceivable question, and factual information to share. It works.

[rrneck]

57. It's not irrelevant.

Our opinions are less direct. It's conversations like this that change cultures - and make supreme court decisions moot.

[MineralMan]

60. That would be nice, wouldn't it.

Look at the polls on this subject. First step is to educate people and reverse those poll results. Then, we have to change control of Congress. That won't happen on DU.

GOTV 2014 and Beyond!

[rrneck]

62. I'm sure it will change.

Meaningful change takes time, but it's the only change that matters. My only fear is that we will run out of time to get it done given the exigent circumstances that surround us.

[MineralMan]

64. I'm not sure at all it will change. I'm sure that I'll be working

to try and make that happen, though.

[morningfog]

47. It is a search of your telecommunication usage without probable cause.

The warrant to acquire all the data of all users everyday is not founded in probable cause. The argument can be made that it is a violation of the 4th.

[markiv]

49. a terrorist could be hiding in any bedroom in the USA too nt

[Recursion]

55. SCOTUS has said tracking numbers dialed is not a Constitutional violation. But Congress limited it

The ECPA, PATRIOT act, and FISA all control under what circumstances the government can watch whom you are dialing and emailing, but this data is still much less protected than what you are saying.

[rrneck]

54. Relationships are transient.

Why would any agency or organization want to keep a record of your electronic contacts with people permanently? If they don't have the content of the communications all they can prove is that two people made some sort of contact, and conspiracy is hard enough to prove without knowing what people talked about. And if the information isn't acted upon immediately, it becomes useless to thwart an immanent threat. But that kind of information would be especially helpful in asking questions like, "Are you now or have you ever been...?". Now, maybe they aren't keeping the information permanently, but don't bet on it.

So, is a Facebook or Twitter account an "assembly"? They are associations of people created through electronic contacts. Such associations have been instrumental in group responses to coercive power by governments. The only thing better than knowing who knows who when it comes to governmental repression is having people restrict their associations to avoid that repression. And of course, this would work just as well for corporate interests too. While the ability of government and corporate interests to exploit third party data have been able to outrun the language of the fourth amendment I suspect violations of the freedom of assembly clause in the First Amendment may be of more concern.

[Orrex]

63. IMO the big question is why your thread got more replies than mine.

I suspect a conspiracy and coverup.

[MineralMan]

65. I don't know. It could be a conspiracy, I suppose,

or it could just be thread titles. Sometimes, I write something in a thread, and then think it would make a good OP on its own.

[ljm2002]

70. Your example about a threat to the President...

...is not like PRISM. Because the threat is a specific one, the message can be pointed to and then information specific to that message is requested. That is a reasonable, expected use of "probable cause" to get more information.

You certainly could say that some Verizon user, somewhere, is probably communicating with a terrorist. You could say the same about any other telecom. Which is exactly what the government seems to be saying: someone with access to a phone is using that phone for nefarious purposes. Therefore we must analyze all phone traffic. We have already identified some of the nefarious players and will use that information to ferret out their contacts.

Oh, and trust us: we won't use it for anything else. No, seriously. Just. Trust. Us.