Thank you for repeating the 4th Amendment to me. What program broke it? Because the courts have held quite consistently that information shared with a third-party is no longer private. Even the "reasonable expectation of privacy" phone booth case is quite different from "Hi Facebook, here's private message for you to send to my friend, oh and all of your advertiser networks and data mining algorithms"
Congress has normally patched that up as new technologies have been introduced by making privacy a legislative requirement (but still not a Constitutional right). But they haven't done that for the Internet yet.
ECPA is the closest thing, but it specifically exempts FISA surveillance (though it does still require a court order if I'm reading 18 USC 119 correctly). While I do agree that Internet usage should probably be considered as de facto reasonable expectation of privacy on the wires I'm not sure that the law is at that point yet.
"Reasonable expectation of privacy" itself was essentially invented by the Supreme Court, so it's not as if there's no precedent for adding restrictions on government surveillance, but I'm not seeing the shortcut around the Constitution here except for 641A types of activities (assuming those are not being done under FISA auspices).
Information shared to a third party that the first party could no longer deem under its control, that is what is no longer considered secret.
This means that yes, the government has perfectly readable access to everything I post on Twitter. That's fine. This does not mean that they have access to the contents of my Livejournal posts that are not shared. While it is a factual assertion that I have shared them to a third party, another, better interpretation is that I have shared them to a contracted vendor with whom I expect privacy, even where I know that they may not be able to access it.
There is case law on physical proxies. If I am the renter of a storage locker or facility that has a lock on it (password), then I have a reasonable expectation of privacy there, even though the storage facility is clearly a third party. Because I have a contract with them, and in that contract, I do not grant wide-open access to my belongings, the storage locker is an extension of my papers and effects.
I get that you and we all have different interpretations of what we would expect privacy to mean. But the government only has the one that it has to go by, the law, and the law was made much more expansive by the USA PATRIOT act and only brought back in a little bit by the 2008 Amendments. I could have sworn that the Supreme Court has had a chance to strike down part of the USA PATRIOT Act by this time and hasn't.
I like your analogy on physical proxies, but I didn't need convincing that information given to a third-party on the Internet deserves a "reasonable expectation of privacy" (up to the limits of the privacy policy itself, though...). I just don't think the law agrees at this point, which is why I'm pushing back against people with the idea that everything the NSA has ever done is illegal.
The law needs fixed, once and for all. I think most of us agree at least in theory that there is a need to handle counter-terrorism and domestic law enforcement so we also need to decide what "features" (if any) are built-in for that.
And then we need to decide how far those laws extend to cover those from outside the U.S.
"But the government only has the one that it has to go by, the law"
Technically, the 'one thing' to go on is the Constitution. Any law that violates the Constitution, plainly read, is not a law at all. No citizen is obliged to abide it, no court is obliged to uphold it, and no agency is obliged to enforce it.
Obviously the world exists in far less black and white terms, but at least portions of "the law" that they are following have been deemed unconstitutional by the courts, which should cast a long shadow of suspicion on the rest of the provisions.
This is why we ought be thankful that Snowden spoke up. Too many people derive their morals from what is or isn't legal, and too many people would accept unconstitutional infringements to the constitution that makes them feel safer. To paraphrase Neil deGrasse Tyson, "I don't fault people for being willfully ignorant, as long as they know they're making a tradeoff for mental comfort - I don't want to be them, but I understand it whenever I can't fall asleep because I'm worrying about the state of things" -- what polls on this issue have shown is that far too many people just want to be governed kindly, which is either an indication of a dumb, complacent society that has lost its fierce American spirit, or is an indictment on all people unilaterally.
"A republic, if you can keep it," implied that there would be work involved. What we've shown over the past few decades is that, as a citizenry, we aren't willing to put that work in.
I'm not going to limit my view to an incomplete set of documents written by no-credibility liars and rubber stamped by secret courts. When multiple independent sources, people who actually worked there, come out and say "no it's far far more than even that, they're on a mission to collect everything", I tend to believe them.
So you tell me...
What was the "program" authorizing Room 641A?
How many other "fiber taps" are there? (as alluded to in the PRISM doc)
What data is being collected?
Or rather, what data is not being collected?
The fact that we don't know the answers to these questions because they are being deliberately withheld from us means that we are not "secure against unreasonable searches".
641A? Probably ECPA in conjuction with FISA. Likewise for fiber taps. The real "innovation" there is how much domestic data is allowed to be captured by accident and then minimized later. Might meet with the letter of the law, but definitely not the spirit!
> The fact that we don't know the answers to these questions because they are being deliberately withheld from us means that we are not "secure against unreasonable searches".
Well, the lack of an answer to this isn't what is violating the 4th Amendment. If they answered "we record everything" you'd have your answer but would presumably still feel that your rights are being violated.
Congress has normally patched that up as new technologies have been introduced by making privacy a legislative requirement (but still not a Constitutional right). But they haven't done that for the Internet yet.
ECPA is the closest thing, but it specifically exempts FISA surveillance (though it does still require a court order if I'm reading 18 USC 119 correctly). While I do agree that Internet usage should probably be considered as de facto reasonable expectation of privacy on the wires I'm not sure that the law is at that point yet.
"Reasonable expectation of privacy" itself was essentially invented by the Supreme Court, so it's not as if there's no precedent for adding restrictions on government surveillance, but I'm not seeing the shortcut around the Constitution here except for 641A types of activities (assuming those are not being done under FISA auspices).