Post by pseudonymPost by Jim BeardPost by - Bob -I'm thinking that you left the smiley face out of that. But in case
you didn't, you need to get together with GWB and go read the 4th
Amendment. And, if so, I'd make a wild guess that you need to read
the rest of the Constitution while you're there.
"The right of thew 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, support by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things
to be seized."
Yep. Reads just like I remember it. And nowhere does it say
that even full-take wiretapping would be an "unreasonable
search or seizure," if the wiretap were placed in a location
other than a person's home. If you broadcast your message
via radio, anyone with a receiver that can intercept it is
welcome to it, no violation of Amendment IV whatsoever.
And if you send it over a network not owned or controlled by
you, that offers no assurance of control over where your
message may go between point of origin and destination, and
that is subject to monitoring by potentially many unidentified
parties, I cannot see that you have any claim of privacy at
all. Just as with radio broadcast. Searching that which is
available to public view is not a violation of Amendment IV.
With all due respect, you are completely and utterly wrong. :-) You
simply aren't thinking the matter through. Let me attempt to
explain. If you look closely at the 4th amendment, you will see that
it
specifically guarantees American citizens the right to be secure from
persons = Your body, your mind, what's in your clothing & pockets,
etc. houses = This is the part you focused on exclusively.
papers = Personal records, correspondence, information, etc.
effects = Personal property (cars, safe deposit boxes, purses, etc.)
Perhaps it isn't superficially obvious to you, but this does in fact
establish that internet-based communications are covered by the
#1) Because internet-based communications fall under the definition
of "personal papers." "Papers" are defined as records,
correspondence, and information. Internet-based communications also
consist of records, correspondence, and information. "Personal
papers" is therefore the same as "your personal internet
communications." #2) Because the 4th amendment gives "personal
papers" protection of
their very own, as if they themselves were private containers like
our houses and safe-deposit boxes. This is proven because the
authors of the 4th amendment specifically enumerated "papers"
separately from "persons," "houses," and "effects." If "personal
papers" were only intended to be protected from the 4th amendment
WHEN kept within our "houses" and "effects" (or upon our "persons"),
then the authors would not have seen the need to add "papers" to the
list -- just as they saw no need to enumerate any of the other items
typically found within our personal "houses" and "effects" as being
among those deserving protection.
So it's beyond doubt that our personal internet communications are
protected by the fourth amendment. (And the Supreme Court has agreed
upon this countless times with respect to multiple forms of
electronic data communication, including internet-based electronic
data communication.)
That said, our personal internet communications are not stripped of
their general expectation of privacy, or of their fourth amendment
protection, just because the parties involved in their *transmission*
possess the optional physical *ability* to monitor them. If the mere
*ability* of carriers to eavesdrop on communications automatically
eliminated all *general* expectations of privacy and fourth amendment
protection, then all packages and letters you sent through the postal
system would, by the same logic, be subject to unlimited and
continuous government surveillance just because they happened to be
passing through a shipping system you didn't control or own, and
because that system was staffed by postmen possessing the potential
*ability* to open everyone's mail. That's obviously untrue.
Obviously, your postal mail is private and cannot be opened without
a warrant. The reason is because it is personal.
So let's consider what makes internet communications personal. You
argue that no internet communications are personal because all
internet communications are "broadcasting." This is incorrect. It's
incorrect because you're treating the term "broadcasting" as if
it means "any communications that CAN physically be intercepted." The
actual definition of "broadcasting" is: communications
*intended* by the sender to be received *indiscriminately*, i.e. en
masse. In other words, by calling internet communications
"broadcasts," you
are effectively arguing that postal letters are automatically
stripped of their "personal" status just because, in order to be
delivered, they must pass through the hands of people (postmen) not
involved in their content. This, of course, is also untrue.
What designates something as "personal" is who it is addressed to and
from. If a communication is addressed from one individual to another
individual, or from one group of people to another group of people,
then it is personal to the parties involved.
Therefore, postal letters are considered "personal" by *intent*: by
virtue of the individuals to whom they are addressed to and from.
All internet communications are likewise addressed to and from
individuals. Because of this, they are personal. And because
internet communications are also not "broadcasting," they are
therefore subject to a general expectation of privacy and fourth
amendment protection. The only time personal
records/correspondence/information become
public *despite* the sender's intent for them to remain personal
(private) is when the sender chooses a means of communicating or
storing them which *directly* causes them to be exposed to persons
who are neither physically participating in their contents nor
physically involved in their delivery or storage. This is where
your analogy to radio (broadcasting) *should* have been made. The
public airwaves are only considered public (i.e. exempt from
expectations of privacy and fourth amendment protection) because
radio signals propagate omnidirectionally and indiscriminately. They
*directly* enter the receiving equipment of all people not
directly involved in their authorship, intended readership, or
delivery. The operative analogy here is shouting. Radio
broadcasting is like yelling so loud that everyone in your
neighborhood can overhear you, whether they be private residents (no
expectation of privacy) or government officials prowling for
criminal activity (no fourth amendment protection). Unlike radio
broadcasts, postage letters and internet communications
are not delivered in ways which route their contents
"omnidirectionally and indiscriminately to everyone." They are, in
fact, as a matter of efficiency, routed in ways which involve the
fewest number of hops (the fewest number of delivery people)
necessary to effect their delivery. They furthermore qualify as
personal (*not* broadcast) by virtue of being individually
addressed. Finally, again, a personal communication isn't stripped
of its personal status (and therefore its forth amendment
protection) just because those involved in its delivery have the
*ability* to spy. End result? Internet communications are protected
by the forth
amendment and have a general expectation of privacy. :-)
As an aside: when I say "GENERAL expectation of privacy", I'm
referring to the fact that the fourth amendment doesn't prohibit
interception by private persons or companies. Non-governmental
interception is naturally left to extra-constitutional laws to
address -- such as statute laws. And in the majority of cases,
statute law does address private interception. For example, your
telephone company is only allowed to intercept your conversations
when in the process of maintaining its physical equipment (i.e. a
technician evaluating the quality of your line), or when carrying
out business on your behalf (i.e. operator-assisted line break-ins
or conference calling). It is illegal for your telephone company to
otherwise listen to your calls -- yes, calls you make right over
*their* equipment -- for any other purposes, whether those purposes
be marketing, information-gathering, or just "for the f%*k of it."
The fact that no law (yet!) exists prohibiting ISP monitoring for
non-business/maintenance reasons doesn't however eliminate your
*general* expectation of privacy, or your fourth amendment
protection. Your internet communications remain protected by the
fourth amendment by virtue of the fact that they are personally
addressed and not broadcast. And while you may have to tolerate
your ISP watching you (given the lack of laws forbidding them from
doing so), you *still* legally have a *general* expectation of
privacy -- from persons *not* directly involved in the delivery of
your internet traffic. For instance, even though your ISP can read
your e-mail, *I* can't legally crack your POP3 password and read
your e-mail myself. Anyway, that's (more than) the jist of it.
You may also wish to look into the other particulars of the fourth
amendment's meaning. For example, "reasonable" searches and seizures
are those conducted with a warrant, or *without* a warrant *if*
there is reasonable cause to believe that life or limb is in
*immediate* danger. "Reasonable cause to believe that life or limb
is in *immediate* danger" is how the government attempts to justify
warrantless searching. It claims that because lives may be
endangered at any time by terrorism, there's always an "immediate"
danger that makes warrantless searching "reasonable." But this is
sophistry (corrupt logic) because, legally, warrantless searching
done for fear of immediate danger to life or limb can only persist
for the short period of time between when that danger is initially
reasonably suspected and when a judge can be summoned to either
grant or deny a warrant authorizing continued surveillance beyond
the point of his reviewing the situation itself. And *that* is why
the government uses corrupt logic to justify warrantless searching.
It knows that no judge will consider the possibility of terrorism so
"everlastingly immediate" that it justifies *warranted* mass
surveillance. So, the government simply avoids going before a judge
(who would tell the government to end their mass-surveillance) by
claiming that the fourth amendment doesn't *require* them to go
before a judge in the first place. Hogwash. Buffalo chips.
Post by Jim BeardIn point of fact, to 1925 and beyond, wiretapping not done
within someone's home was legal,
That doesn't make sense. Can you name any wires in a 1925 home that
would've been desirable to tap from *within* the home YET
undesirable or pointless to tap from *outside* the home? Makes no
sense. See, in truth, the only wires within a home that would've
been desirable to tap would have been wires which continued
*outside* the home -- those whose content was identical inside and
outside. This is why the Supreme Court reversed its earlier
erroneous ruling affirming that warrantless wiretapping outside the
home was constitutional. They concluded that, because those wires
carried "personal papers" (personal correspondence and information),
*where* the wires existed was irrelevant to the greater fact that
personal correspondence and information were themselves protected by
the fourth amendment.
Post by Jim Beardand so attested by Supreme
Court judgment. A later Supreme Court did change its mind,
thereby usurping power expressly delegated to the Congress
(creation of new law -- this was not simply a matter of
"interpretation"), but to argue that the original amendment
outlawed wiretapping is fatuous.
On the contrary. The Supreme Court does in deed possess the rightful
ability to create "law." That "law" is called Common Law. Common
Law is not an "all powerful" form of law, however. It is merely the
sum of the Supreme Court's past rulings (precedents). And because
the Supreme Court is limited in its powers to (a) interpreting
(clarifying) the meanings (and constitutionality) of Statute Laws
(laws passed by Congress), and (b) affirming or denying the
constitutionality of things that have not yet been *addressed* by
any known Statute Law, Common Law is itself therefore no more
powerful than just those two things. The Supreme Court (Common Law)
cannot simply pick and choose things
to make legal or illegal (as Congress can with Statutory Law). That's
what the "unelected-leaders-are-making-laws-from-the-bench"
ignoramuses claim. But they are wrong. Common Law is nothing more
than a list of (a) [portions of] Statutory Laws which have been
found unconstitutional, (b) things unaddressed by Statute Law that
have been found to be unconstitutional, and (c) things that have
been found to be legal ONLY because no Statute Law existed to
prohibit them AND because the constitution itself did not prohibit
them. (C) is what normally gets the "unelected leaders" crowd in an
uproar. They're ignorant of the simple fact that congress can
respond to (c) by passing prohibitive Statute Law -- as long as it
doesn't defy the constitution. Common Law is a fundamental part of
the basis of our system of checks
and balances. The ability of the Supreme Court to create Common Law
is designed to protect, not oppress, us. And it protects us in two
fundamental ways. The first, I described above: the Supreme Court
can end government activity that violates the constitution even if
there is no Statute Law addressing that activity to strike down. (If
the Supreme Court could not create Common Law, the government
would have a "back door" to oppressing people by simply *not*
passing Statute Laws *denying* itself oppressive powers, and which
the court could overturn.) The second way Common Law protects us is
against mob rule in times of
disaster. And it relies upon the fact that Supreme Court justices
are appointed for life. Let's say you are muslim, and that
tomorrow, a group of muslims destroy more New York City skyscrapers.
Let's furthermore assume that the American public goes nuts as a
result, and demands that all muslims everywhere be rounded up and
thrown into concentration camps without trials. Well, in this
example, "all muslims" includes you, Jim. And let's say that your
Congressional representatives, because of "mob" pressure (they must
satisfy the public in order to be re-elected), and because of their
own anger, decide to authorize these round-ups and concentration
camps. (And don't suggest Congress would never bend to the mob, or
to its own anger. They did with the Japanese camps.) At this
point, if the courts cannot make Common Law, you are officially
fucked. You will rot in your concentration camp until the public
has calmed down enough that Congress isn't afraid that releasing all
those prisoners will cost them the next election. (That may take
years!) On the other hand, if the Supreme Court *is* allowed to
make Common Law, then your stay in those concentration camps will be
brief, if you're even rounded up at all. All that will be required
is one level-headed person or civil rights group challenged those
camps in court, and the court overthrow the Statute Law authorizing
them citing its unconstitutionality. And out you'd go. Why? Because
judges appointed for life are the only ones who don't face
termination of their careers if they do the right thing, even if the
right thing is temporarily unpopular. Back to the point. The Supreme
Court did exactly what it was
designed to do regarding the 1925 wiretapping case you reference. It
ordered a stop to a practice that it realized was in violation of
the constitution.
It's rather frustrating how few people understand our system of
checks and balances. It is, in fact, quite fair and just. Very
much like 'rock, scissor, paper.' Statute Law (Congress) can be
overriden by Common Law (the Courts). Common Law can also be made
on its own, as described. Yet in turn, Common Law (the Court) is
overriden by the Constitution. This is why higher courts (better
experts on the Constitution) can overrule lower courts, and why the
highest court (the Supreme Court) can overrule itself if it feels
that its past decisions violated the Constitution. (In overturning
its previous warrantless wiretapping decision, the Supreme Court was
merely (and finally!) recognizing the Constitution's authority over
it. Its *first* decision, where it ruled warrantless wiretapping
legal *despite* the constitution, *was* an example of the court
making arbitrary law -- "Statute Law" style.) Finally, and yet
again in turn, the Constitution can be overriden by the Congress (by
amending it). Rock, scissor, paper. If any one branch of the
government goes mad, another can balance it out. P.S. #1 - Although I
proved my point regarding the difference between
private internet traffic and broadcasting, I can also further
emphasize it by pointing out that the internet itself is also
technically wired to distinguish the two. If your UNIX sig is any
indication, you're aware of broadcast IP addresses. All other
traffic is therefore technically peer-to-peer -- personal.
P.S. #2 - Even when a message IS communicated through a medium that
is indiscriminate and omnidirectional in its propagation
(broadcasting), it is still possible to legally declare it private
anyway, and therefore give it fourth amendment protection. One
example of this is when a medium considered overwhelmingly private
(like the telephone network) relies, in minority part, upon a medium
that is considered public (like the public airwaves). Telephone
the public airwaves. Yet that "leg" of the telephone network, while
it might otherwise be considered public, is nonetheless granted 4th
amendment protection as well as a legal expectation of privacy
because of the fact that it "really" represents a private
communications system only forced in part to use a "public" one for
technical reasons. Same with analog cellular telephones. Despite
the fact that they used "cleartext" analog FM radio for transmission
purposes -- a medium so pedestrian that virtually anyone could
intercept their transmissions, they were *still* considered part of
a greater, private network, and were afforded full privacy and 4th
amendment protection. The reason I mention this is because it's
relevant to the internet as well. Think the radio ("broadcast")
links between people's laptops and wi-fi hubs, or between people's
3G (internet-enabled) cellular phones and their local cell towers.
someone.
official permission by the judge..
I am a firm believe in privacy but the technicalities is killing us..