JimC wrote:Seth wrote:JimC wrote:Seth wrote:Blind groper wrote:Based on what Seth has just said, that the NSA might own Tor, it is more vital than ever that whistle blowers be active and let everyone know what is going on.
If you don't trade in kiddie porn or espionage, why would you care?
I would have thought that you in particular would object strongly to a big brother government poking its nose into your affairs, whether they are legal or not...

I'm just asking what you think. I know what I think.
Well, I dislike it on principle, even though I'm not (as it happens) an international drug dealer, kiddie porn manufacturer or terrorist...
And as for your thoughts, I sense a certain amount of conflict on this issue between your libertarian principles and a "go USA" attitude...
It's purely pragmatic. I would prefer to live in a world where monitoring of electronic communications was not necessary, but I recognize that this is not the world we live in, and pragmatically such intelligence gathering can be both necessary and beneficial under the circumstances, and that it's going to happen whether I like it or not. I also recognize that in order to separate the wheat from the chaff, one has to thresh all the grain and that refusing to thresh the grain because some of the grain may be damaged in the process means that the entire crop rots in the field. Therefore, the best I can do is to argue for limiting the ways in which such information can be legally used against citizens of this country. As I have said, one of the ways that I would limit the potential harm of government intelligence gathering and surveillance efforts is to amend the US Constitution to state specifically that any information gathered under the mantle of national security may only be used against a citizen of the United States to pursue criminal prosecution only for legitimate cases of domestic or foreign terrorist activities with national security implications directly involving that citizen, and for no other criminal or civil purpose whatsoever. Further, releasing or revealing any information gathered for the purposes of national security outside of the national security system would be a felony with a mandatory 25 year federal prison sentence for anyone involved in, or with knowledge of the release of such information.
The Constitution guarantees our right to be free of
unreasonable search and seizure, not
any search and seizure. But the nature of the threat and the medium of communications technologically requires the scanning (searching) of digital communications for keywords related to the legitimate national security concerns, which means that in order to find the messages that have national security implications some examination of all messages passing through the system for those keywords, but not necessarily the retention of any of the information in messages that do not contain such keywords.
The postal paradigm is useful in examining the reasonableness of such message scanning. It has always been lawful for the Post Office to keep track of where letters and parcels in the system are sent from, sent to, and by and to whom. That's public information that appears on the outside of the package by necessity, and therefore "searching" the address is not unreasonable because there is no expectation of privacy in that information.
To delve more deeply into a particular letter or parcel on the other hand requires a warrant issued pursuant to probable cause issued by a judge, at which point a Postal Inspector can intercept, open, examine and copy (or seize) the contents lawfully if it's contraband or evidence in a crime.
The same has been true of telephonic communications since its invention, and the location of both parties, as well as the time, date and duration of the call are also not privileged under the 4th Amendment because it must be revealed to a third party in order to make the connection. Intercepting the contents of the conversation still requires a warrant.
Where things begin to go grey is when the location information that's inherent in a cell-phone call is collected by law enforcement without a warrant and without any particularized suspicion of the individual making the call under the rubric of being non-privileged merely because the automated systems must make such a determination of location in order to connect the call. The challenge posed to the courts goes beyond what was contemplated by the Founders of course, because they never imagined that such particularized and ubiquitous tracking was even possible. But they did proved guidance in writing the 4th Amendment broadly and I believe that it clearly does cover this sort of intrusion by the government on personal privacy where it says that a person has a right to be free of unreasonable search and seizure in his
person, houses, papers and effects absent particularized suspicion of wrongdoing and/or probable cause supported by a duly-issued warrant. While most people focus on "papers and effects" when they think about police searches, such as whether your cell phone messages and other data are the functional equivalent of "papers and effects," the issue of surveillance of the individual falls under the "person" requirement. Placing someone under physical surveillance, which includes gathering information on the person's location and his activities, is, I believe, precisely what the Founders were concerned with when they said a person has a right to be free from unreasonable search of his person. Following someone around or recording their location is a "search" in every sense of the word. Thus, it is my belief that even in public places, absent probable cause that the person is, is about to be, or has been involved in a crime, law enforcement has no lawful authority to initiate a "search" that is intended to determine the location of the individual, whether it is limited to determining a single location or keeping track of every location the individual visits.
This right conflicts with the right of police to observe what's going on around them and to themselves travel freely about the public domain in the performance of their duties that may happen to include following someone who has raised a reasonable suspicion in the officer's mind to a limited extent, this being the duty and purpose of the police.
If a person's activities has brought them to the attention of the police and given rise to a reasonable suspicion of criminality, then the officer is certainly empowered to follow that person about in the public domain as much as any other person is authorized to do, which is pretty broad in scope and limited only when the surveillance turns into stalking or harassment as defined in the law. Short of this, any person can follow any other person about in public as a matter of right.
But IMHO the police actually have less authority to tail people than an average citizen does precisely because of the 4th Amendment, which to me imposes a strict requirement on the agents of government scrutiny that they have
prior or contemporary knowledge or suspicion of a crime before they can legitimately "search" an individual's "person" by keeping track of his location.
So, IMO the police must have at least a reasonable, articulable suspicion that the individual they are following or tracking is, has been, or is about to be involved in a crime before initiating any such tracking that involves a particularized interest in the person's movements.
To me, this clearly prohibits the police acquiring or using tracking information on individuals who are not under suspicion, which should prohibit the gathering of cell-phone location information from non-suspects, either on an individual or group basis
or information about a legitimate suspect's location at any time before a search warrant for tracking the individual has been issued by a judge based on a finding of probable cause.
This seems to comport with the recent SC ruling that placing a GPS tracker on a suspect's car requires a warrant.
"Seth is Grandmaster Zen Troll who trains his victims to troll themselves every time they think of him" Robert_S
"All that is required for the triumph of evil is that good men do nothing." Edmund Burke
"Those who support denying anyone the right to keep and bear arms for personal defense are fully complicit in every crime that might have been prevented had the victim been effectively armed." Seth
© 2013/2014/2015/2016 Seth, all rights reserved. No reuse, republication, duplication, or derivative work is authorized.