Wikimedia v. NSA: Wikimedia Foundation files suit against NSA

As usual, rayiner has answered these questions better than I can. Here is my take anyway:

1) The short version is that there is a difference between collecting information and looking at it. The NSA doesn't look at or act upon any metadata it collects without first obtaining a warrant from a judge. It just sits there on a server until government lawyers can convince a judge that evidence shows that the data is relevant to a time sensitive security matter. You may not personally believe the government when they say that, or trust that they will always get a warrant to look at information that's already in their possession. But, that's the process. As of right now, the judicial system takes them at their word. That's why the 4th amendment isn't being violated. They still need a warrant.

2) Evidence collected via parallel construction is not withheld from the defendant, just the method of obtaining it. If the DEA says "We have a tape of the accused discussing drug trafficking", that defense will be notified of that tape's existence during discovery and will be able to hear it and prepare for it before trial. It's just that the DEA won't have to say exactly how they got the tape, as not to reveal the full extent of surveillance programs. This may or may not be an unfair advantage for the prosecution, depending on the details of the case. That's why we have judges, who are in fact specialists at deciding what's fair or not fair to present as evidence during a trial.

3) The Executive, Legislative and Judicial branches of government have all weighed in on these programs and approved them in some form. That's the bottom line. You may disagree vehemently with their judgement, but this is how the American system of government works. If all three branches of the government agree that something is legal, then it's legal. Everyone is allowed to interpret the language of the constitution in their own way, but that has nothing to do with the rule of law. If you have a different interpretation than the government, vote as many of them out of office as you can and encourage others to do so as well.

I don't agree with you, but I fully support your use of the democratic process to change public policy to suit your beliefs.

Thanks for the reply! Just so I understand, the third party doctrine and pen register precedents are what these programs rely on? If so, why haven't they been defended on such grounds?

The EFF, ACLU, and now Wikipedia have a whole bunch of lawyers who strongly disagree with your assessment, but they have been unable to argue these points in an adversarial court because the Executive has resisted even addressing the question. If the Executive's opinions are backed in strong legal precedent, it would save everyone a whole lot of time if they just got to those points.

Marbury v Madison says that the Supreme Court has the final authority to interpret the Constitution. Whatever they say about the Fourth and Sixth Amendments is the law of the land. I might change my mind based on the actual arguments used and the logic in the written decisions, rather than the ruling itself. It seems like you would be open to change as well, which is indeed a good sign.

rayiner is the one to go to for citations and case law. If you think that something in particular that I've said is factually incorrect, then I will gladly stand corrected. After going through your citations, there seems to be a lot of differing opinion and blame shifting regarding who said what and when. I'm not surprised that politicians and judges would say "The NSA never told me about X or Y" if the programs appear to be unpopular. If the Legislative branch is really unhappy with the NSA, they can propose a budget that cuts their funding. The Executive can threaten to veto a budget unless NSA funding is reduced. The Supreme Court can take up any number of cases, including Wikimedia's, at any time.

I'm glad that we were able to exchange ideas, but the decision is ultimately up to the political process. We'll see how it turns out.

Why sympathize with them? Because you would undoubtedly appreciate me second-guessing decisions you made in complex, nuanced situations to which I was not a party, just as much as they likely appreciate the way you've reduced their dilemma to a ridiculously over-simplified, cut-and-dry model of reality that is no more fair than it is accurate. That's why. Don't excoriate these people based on your assumptions.

Do we currently have the ideal balance between the need to protect our citizens and national interests, and the need to protect the rights of our citizens that our Constitution guarantees? Hell no, we obviously don't have it. Is that something most NSA employees have control over? No. You may be the one who is deluded if you think someone can just raise their hand at the NSA and say, what?, "I think we should re-think how we're doing business, because we might be infringing on the rights of everyday Americans." It's a bureaucracy. To address these issues, we need to be suggesting solutions instead of perpetually yelling at each other like opposing fans at a football game.

I don't want to live in a panopticon anymore than you do. My point is that we don't live in a perfect world, and that none of us are perfect (I hold myself up as a prime example). We need to recognize the difficult situation we've put the people who serve our country through the intelligence community; we've asked them to protect us from our enemies, but we expect them to accomplish their mission without encroaching on our privacy or violating our rights. And WE SHOULD expect them to do both; that's the nature of the job. I'm just pointing out that we should recognize and acknowledge the position this puts them in and stop demonizing them. It's counter-productive at best.

I do not accept that all of the communications of every American must be surveilled and stored in order to accomplish the mission. We need to find the right balance between security and citizens' rights. But that's not something that can be accomplished by software engineers at the NSA, nor even by the head of the NSA. We need to elect political leaders who we trust to work towards finding that balance. And we need to recognize that not only will it be an uphill battle, but a long one: we will always struggle to find the right balance between privacy and security. It's been going on since the Declaration of Independence, and I'd bet my money it'll still be going on at the quinticentennial.

Seems like a hard battle for sure.