I have questions about Obama's vote and the 4th amendment:

[cliffordu]

For those of you who haven't read it, here's the text of the 4th Amendment to the Constitiution of the United States.

"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."

These are the questions:

Does the infrastucture supplied by the phone company meet the criteria set out above?

Does your contract with the phone company guarantee your right to privacy??

What reasonable expectation of privacy do you have on the telephone or the internet when all of your electronic communications are carried out over privately owned phone lines, wireless systems and cable television infrastructure?


*****

In related news, apparently you have to supply your SSN when attempting to purchase an iPhone now......

[mrreowwr_kittty]

1. It's a question I had too but I'm guessing case law about wiretapping

Has created that reasonable expectation. Then again, you don't have any expectation of privacy when boarding a plane, which is also a voluntary activity conducted on a private enterprise.

[cliffordu]

2. Right - This creation of a reasonable expectation is kind of what I am getting at

without really knowing it's history....

I guess I have never had any expectation of privacy on the telephone - when I was in my misspent youth I spent a LOT of time using code words for pot in my conversations.....The level of rancor and hysteria over the FISA thingy has me wondering what I missed in terms of telephone conversations being private.....

[atreides1]

4. Very Good Question

How to have an expectation of privacy on a flying metal tube with 100 other people on board?

Besides, once you step into most areas controlled by the federal government, they tend to be pretty specific that you are subject to search.

[atreides1]

3. Just My Personal Opinion

"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."

If you read it then you noticed the part about the right to be secure in my home.



Does the infrastucture supplied by the phone company meet the criteria set out above?

Not sure what your asking here, but once the phone line enters into my house, then the 4th Amendment should apply.


Does your contract with the phone company guarantee your right to privacy??

Not totally sure, but I know it doesn't give them the right to tap my phone. Does your contract allow the phone company to eavesdrop on your conversations without a warrant.

The lines may be privately owned but I pay those providers for a service, which includes some expectation of privacy, in my opinion!

[cliffordu]

6. I guess I need to go look at the history of the wiretap in this country....

[mrreowwr_kittty]

7. What about a cell phone then?

If you're not in your home, can you reasonably expect privacy? Or does that apply to "persons" or "effects"?

[grantcart]

5. I think that beyond the 4th ammendment that there have been hundreds of

rulings that the courts have made that expand the initial understanding (much like Roe V Wade is based not on a literal point on the constitution but on conclusions that have expanded the initial frame work)

More over I would guess that there have been federal statutes that guarantee privacy and confidentiality of records and that these have been incorporated into the 'fine print' of your telephone contracts.

I assume that the telecom companies were facing suits based on violating this, fed statute and contract provisions, and not for violating the constitution.

Moreover the FISA infrastructure and the expansion of Bush's survelliance went beyond intercepting communication but went to 'business information' simply trolling for patterns on who was calling who. This does not fit a warrant because you are not looking for a person but looking, for example somebody that called Saudia Arabia, Pakistan, and Yemen all on the same day every month. That would generate an intelligence lead that would lead to a warrant.

With the compromise this information can now be obtained but the overall effort now has to pass some type of FISA court scruitiny.

[cliffordu]

8. That's a better explanation than the one I was working from -

I have assumed they listen to everything all the time anyway, so......

but don't tell anyone else....they'll think I'm paranoid.

[Buck Rabbit]

9. It is meaningless to discuss the 4th as it relates to international calls

without discussing the Border Search Exemption which is and has been the established law of the land.

The government can't open and read your domestic mail without warrant and probable cause. But it can open and read mail sent to you across the National border, at random without cause or suspicion. In practice and established case law, the 4th Amendment is exempted when the border is crossed by a person or thing. FISA was created in the 70s to try to give some protection and oversight to international phone calls.

Bush's wire tapping on international calls was illegal not because it violated the 4th Amendment but because he violated the requirements of the FISA statutes. If he tapped any purely domestic calls then that would be a violation of the 4th.

[iconicgnom]

12. In fact Bush ordered and implemented the mass harvesting of ALL internet communications.

In fact whistleblowers have explained how Bush admin tapped into the main trunk lines of major communication networks, so ALL communications ARE accessed. Anyone who thinks such mass access in any way precludes the possible, and actual, focus on whatever individuals and groups desired, for whatever reason, is foolish. In these circumstances the spy agencies or their proxies need only ask for a retroactive FISA or whatever warrant in those cases where they've actually acquired info for a court case (and the particulars will support the warrant, of course). But info is gathered regardless, and may be used in other venues for other reasons and for other advantages, in which case disclosure isn't required, so a warrant isn't required.

Such a system can be used, undetected, for e.g. financial and political advantages as well as for "fighting terrorists" - and no doubt 99% of its use would be (and is) for other purposes.

[cliffordu]

14. I thoght that the mass interception of all electronic communication had been

achieved some time ago with the Echelon Project. No?

[iconicgnom]

17. Look, this is what "telecom immunity" is about. Not the "echelon project"

[cliffordu]

22. The telecoms wouldn't need immunity if they hadn't been spying on

the citizens here in the the US, Right??


Maybe they should be asked about all this in court. Criminal court, not civil.

[iconicgnom]

23. maybe, just maybe, they shouldn't have been granted retroactive immunity from prosecution.

But that wouldn't make Bush happy - or, it appears, you.

[cliffordu]

24. Retroactive immunity from CIVIL court, not criminal.

And the only thing that would make me happy is if you really understood what the fuck you're talking about.

And none of it makes me happy, but the general hysteria around it here on DU is pretty specious and juvenile compared to the lack of care over the rape of the 4th by the drug laws, Echelon and COINTELPRO.


You don't seem to be too worried about all that as you cannot slime Obama over it.

Odd that your final line would liken me to Bush. Perfect.

[iconicgnom]

25. Senate Approves Bill to Broaden Wiretap Powers

WASHINGTON — The Senate gave final approval on Wednesday to a major expansion of the government’s surveillance powers, handing President Bush one more victory in a series of hard-fought clashes with Democrats over national security issues.

The measure, approved by a vote of 69 to 28, is the biggest revamping of federal surveillance law in 30 years. It includes a divisive element that Mr. Bush had deemed essential: legal immunity for the phone companies that cooperated in the National Security Agency wiretapping program he approved after the Sept. 11 attacks.

...
ERIC LICHTBLAU
http://www.nytimes.com/2008/07/10/washington/10fisa.html?_r=1&partner=rssnyt&emc=rss&oref=slogin

1. The distinction civil/criminal such that some now say that *maybe* there could be criminal prosecutions, even now, is recognized to be a huge stretch even by those who have sincerely reached for it, and not very likely at all, but provides a glimmer of hope amid the widespread despair over the passage of this bill. That isn't something to be chirpy about.

2. the drug laws, Echelon and COINTELPRO, aren't the current issue - they aren't about the bill that was just passed - and your assertion that those who are dismayed about the passage of this bill aren't concerned about the other is totally twisted rhetoric.

3. your description that people who're dismayed by passage of this bill are caught up in a specious and juvenile general hysteria is ad hominem garbage, not worthy of the people you would presume to put down.

4. Dismay over passage of this bill isn't "sliming Obama". It is a critique of his position. Those who can't make this distinction are politically powerless.

5. Bush is ecstatic about the passage of this bill. The bill gives Cheney and him more than they dreamed possible, and it caps a string of similar victories. Those who defend it are, indeed, similar to Bush - or at any rate similar to his entourage.

[cliffordu]

26. Well....

1. spin spin spin spin. My point still stands, sparky. Just because you cannot tell the difference between criminal culpability and civil liability doesn't mean shit.

2. The drug laws, COINTELPRO and Echelon have been the slippery slope (read abyss) we've slid down for the last 35 years. You cannot ignore the history here. It is BECAUSE this history is ignored that we don't have tens of thousands on the barricades, blood in the streets. IT is specifically the crimes I listed that makes it just fine with everyone that Bush did what he did to begin with. The immunity is just icing on the shit cake.

3. Your chronic sniveling is irritating. If you wanted to prevent this why weren't you protesting in front of Congress, why no barricade heroics? I forgot, it's easier to harangue people on a fucking message board rather than actually DO something. Many of the complainers are Keyboard Rangers who wouldn't discomfort themselves to save the republic. Wait- aren't you the indidvidual who was denegrading people on who actuall WERE on the barricades for not wearing suits??

4. Not worthy of response, really, but howling about it at this late date seems to have an undercurrent of an agenda other than dismay at the passage of a bill, egregious as that bill might be.

5. I am not defending anything and you know it.

It's a little late to be crying over the mule running away if your barn doors are rotten, and the barn in this country has been rotten for a long time. Sorry you just woke the fuck up.

[iconicgnom]

27. Your statements have no content. Lots of rage and loaded words, tho'.

[cliffordu]

28. At least I'm wearing a suit, though, right?

[Buck Rabbit]

16. FISA courts have no authority to issue warrants for purely domestic spying.

It is beyond their statutory authority. Domestic wiretapping is covered by the 4th Amendment and the border exclusion is not applicable. If there was no FISA court, it is almost a certainty that no warrant or probable cause or oversight would be required of Customs (Homeland Security) for interception any cross border communication, but domestic spying would still be illegal.

If the whistle blowers are correct than rerouting of domestic communication could be addressed directly by a new statue. I am not sure that it would be necessary though as I doubt there is any court (FISA or Federal at any level) that would actually buy the argument that a call with both endpoints within the United States was not purely domestic regardless of how it was routed.

If there was such a court that would buy the routing argument than that loophole must be specifically closed by statute because it would exist whether there were FISA courts or not.

[iconicgnom]

18. Sorry, but with telecom immunity there won't be prosecutions, and won't be disclosure of ANYTHING.

But I'm glad that you and a few others are content with the world that Bush built for you.

[Buck Rabbit]

20. And what a leap you made because the question that was asked

and my comments were not about immunity.

Personally, I have not reached a firm opinion about the end result of the immunity clause of the latest FISA. I have read contrary opinion as well as having read the bill. I obviously don't know the classified information that Senator Fiengold knows and neither do you.

I do have extreme doubts that civil suits against the telecoms would have ever gotten anywhere as the Bush Administration would simply refuse to comply, and if mcCain is elected he will refuse too. I believe the truth about the scope and details can only come to light with a change of parties controlling the Department of Justice and Homeland Security. Though I am not certain they will come out even then. It also appears there are major holes in the immunity, particularly because the statutory defense is invalid if, as the Qwest guy claims, the actions were before 9/11. Again though even if immunity is ruled inapplicable I cant imagine the current administration and the next if it is mccain not being able to stonewall cooperating with a civil suit on national security grounds and executive privilege.

The other point is that Bush has admitted to violating the FISA statues. No need for discovery there, he flat out admits it.

In the meantime, I would strongly support a move for a bill specifying that the endpoints of communication not their routing is the sole determinate of what constitutes domestic communication. Whether this has been done in the past or not, whether it is necessary or not as I don't believe any court would buy the routing argument, it would be a cakewalk piece of legislation that not even a Blue Dog could effectively argue against.

[iconicgnom]

21. The bill that was passed, which is a bad one, INCLUDES immunity.

[cliffordu]

13. Better! Thanks for that explanation - I usually do my own research but I have been

buried for this last few weeks and haven't had the time to get up to speed.

Excellent!

[LynneSin]

10. BTW, SSN was provided for credit checks

If you don't want to give a credit check then buy a 'pay-as-you-go' cell phone.

And honestly, if Obama was not up for re-election OR if we had the votes to win that one you would have seen Obama vote with us. There's a slipperly slope of the interpretation of what happened yesterday that could be used against Obama with the "Oooh the Terrorists are coming" mentality.

These wiretaps happened after soon after 9/11 when the country was still in grips of fear of terrorism and bush had an approval rating that was on the plus side. As stupid as this sound, voting against it could have been perceived as Obama being soft on terrorist because he's not willing to do what is needed to stop terrorism because the average voter out there doesn't have a clue what the big deal is with FISA.

[cliffordu]

11. I agree completely - The candidate formerly known as Gramps still polls higher

when it comes to the ter'rists and any fingerhold, either real or imagined can mushroom into loads of votes -

I agree that Obama needed to vote the way he did. It removes another tooth in the increasingly gummy republican attack machine.

[Breeze54]

15. It might help if you know the history of FISA and The Church Committee

The Church Committee and FISA

http://www.pbs.org/moyers/journal/10262007/profile2.html

October 26, 2007

On January 27, 1975, the Senate, in the wake of the Watergate scandal and alarmed by recent allegations of intelligence service misdeeds, voted to establish an 11-member investigating body along the lines of the recently concluded Watergate Committee.

The resulting body was chaired by Senator Frank Church (D-Idaho). Additional members of the Church Committee, or more formally the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities included its Vice-Chairman, John Tower (R-TX), Walter Mondale (D-MN) and prominent conservative, Barry Goldwater (R-AZ). Over nine months, the committee interviewed over 800 officials, held 250 executive and 21 public hearings, probing widespread intelligence abuses by the CIA, FBI and NSA.

The resulting legislative changes were momentous no matter who is looking at them — Bill Moyers' guest Fritz Schwarz was lead counsel for the Committee and Charles Fried is a critic: "The Church Committee was one of the unfortunate prices that we have to pay for Nixon and we're still paying."

>Read the Church reports here: http://www.aarclibrary.org/publib/church/reports/contents.htm

The Origins of FISA

As chief counsel of the Church Committee, Frederick Schwarz tells Bill Moyers that the most fundamental lessons learned from the Committee include that "when you start small, you go big...When you start in a way that seems legitimate, it inevitably goes too far."

In reaction to the Church Committee reports pushing for oversight, Congress passed the Foreign Intelligence Surveillance Act (FISA) of 1978, which established a secret FISA court responsible for issuing warrants for domestic wiretapping activity. The FISA court consists of seven judges appointed by the Chief Justice and who serve for seven years.

In December 2005, the NEW YORK TIMES reported that President Bush had authorized the NSA to eavesdrop on American phone calls and emails without obtaining a warrant from the FISA court. That revelation was met with consternation, and investigations, by many in and outside of the political realm.

In August 2007, a temporary amendment to FISA passed called the Protect America Act, which as President Bush explains, modernizes FISA by "accounting for changes in technology and restoring the statute to its original focus on appropriate protections for the rights of persons in the United States - and not foreign targets located in foreign lands." But the battle's not over yet — civil libertarians on both the left and right accused the Democratic Congress of giving in easily on wiretapping and several Members of Congress have vowed to readdress the issue.

>More on the FISA Amendments

Project Shamrock

One important program brought to light by the Committee was Project Shamrock — domestic surveilliance that was subsequently prohibited by FISA. Shamrock was a NSA surveillance program stretching from 1947 to the mid-70's that involved the copying of telegrams sent by American citizens to international organizations. L. Britt Snider, former CIA Inspector General and council on the Church Committee, describes the project he was tasked to investigate:

Every day, a courier went up to New York on the train and returned to Fort Meade with large reels of magnetic tape, which were copies of the international telegrams sent from New York the preceding day using the facilities of three telegraph companies. The tapes would then be electronically processed for items of foreign intelligence interest, typically telegrams sent by foreign establishments in the United States or telegrams that appeared to be encrypted.

Shamrock actually predated the NSA, which was created by President Truman in 1952, and began as a continuation of censorship efforts conducted by the the Army Security Agency during WWII. As Fritz Schwarz explains to Bill Moyers, the program began with benign intentions, yet, "if you have secrecy and lack of oversight, you're going to get abuse." By the time the hearings began, many estimate the NSA was analyzing 150,000 messages a month.

When Snider submitted his report to chief counsel Schwarz, he initially recommended leaving out the names of the three telegram companies since they could be subject to litigation and that "the companies had cooperated purely out of patriotic motives." Schwarz decided to leave the names in the report, even after repeated pressing by the Ford Administration that such disclosure would damage national security.

More.....

FISA was actually set up to keep the telephone/telegraph companies in check and inside the law.
aka No domestic spying without a warrant!!

[JuniperLea]

19. It sure was a slippery slope!

Bottom line:

"if you have secrecy and lack of oversight, you're going to get abuse."