Is the Fourth Amendment Now Illegal?

by on August 9, 2013 at 1:06 pm in Law, Web/Tech | Permalink

In my view the fourth amendment is routinely being violated by the federal government. But is the fourth amendment, in particular the right to be secure in one’s papers, now illegal? Maybe. Violations of the fourth amendment by the federal government encourage the use of encryption but that avenue may now being blocked. Lavabit, the secure email service used by Edward Snowden, has suddenly and mysteriously closed with the creator leaving this message:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on–the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

Other secure email providers have also shut down.

Recently I asked for suggestions to add to the Bill of Rights. One of mine was:

Congress shall pass no law abridging the right of the people to encrypt their documents and effects. (Modern supplement to the fourth amendment.)

I guess that amendment isn’t going to pass. I should not be surprised. In 2003 I said the cyber-libertarians were naive to dream of a new world of privacy and liberty built on the foundations of the internet and public key cryptography. Sadly, I got that one right.

Hat tip: Lynne Kiesling.

Addendum: Here is a longer account of what may be going on with Lavabit. Key graph:

There are already two theories as to what a FISA order against Lavabit may have looked like. First, FISA could have ordered Lavabit to insert spyware or build a back door for the N.S.A., as American and Canadian courts reportedly did to the encrypted e-mail service Hushmail, in 2007. Second, FISA could have ordered Lavabit to permit the N.S.A. to intercept users’ passwords. But the truth may never come out.

Norman Pfyster August 9, 2013 at 1:21 pm

Is the Fourth Amendment illegal? Dude, like many of your comments on patent law, you should really stay away from legal commentary.

Andrew' August 9, 2013 at 1:23 pm

No. Lawyers should be run off tarred and feathered.

Go Kings, Go! August 9, 2013 at 1:26 pm

As a lawyer, I agree both that Alex’s phrasing is nonsense and with Andrew’.

Andrew' August 9, 2013 at 1:49 pm

We might know if the 4th amendment were illegal if the 1st amendment weren’t illegal. One might have some faith in the likes of the ACLU except they appear at best to be a rear guard of the dielectic. It’s pretty clear that as a whole lawyers are now just the tool for making sure the rules only get interpreted in one direction.

Dan Weber August 9, 2013 at 3:20 pm

It’s well-understood by lawyers that the Fourth Amendment protects your personal effects, and that this excludes things that other people know or store about you.

But, yeah, seeing that headline told everyone this was an Alex post.

Andrew' August 9, 2013 at 3:21 pm

“It’s well-understood by lawyers”

’nuff said. They have interpreted the 4th out of existence.

Andrew' August 9, 2013 at 3:22 pm

What exactly do you think the modern interpretation of “papers” might be?

What if we only protected actual printing presses.

Would be pretty damn asinine wouldn’t it?

Dan Weber August 9, 2013 at 3:28 pm

“Houses, papers, and effects” definitely covers your hard drive, if it’s in your house. That’s not the issue.

The Fourth Amendment has never stopped third parties from saying what they know about you or turning over what you have voluntarily given them.

Andrew' August 9, 2013 at 3:33 pm

Why just in my house?

Anything not in my house isn’t mine?

Are you getting the idea yet?

Dan Weber August 9, 2013 at 3:40 pm

If you leave your diary OR your hard drive in the middle of the road, it’s not covered by the Fourth Amendment.

jdd August 9, 2013 at 3:41 pm

does that cover my safe deposit box or are those still my papers?

roystgnr August 9, 2013 at 3:56 pm

Ah, so *that’s* why wiretapping doesn’t require a warrant anymore! The things I say to *myself* may be protected from unwarranted searches, but the things I say to others are just “things that other people know”.

Dan Weber August 9, 2013 at 4:00 pm

Stored communications are different than communications en route.

If you mail me a letter, once I have it, the government does not need a warrant against you before I can turn it over to them voluntarily.

They may well need a warrant to force me to turn it over to them, since it is part of my personal effects.

Andrew' August 9, 2013 at 4:26 pm

They aren’t turning them over voluntarily. It’s duress.

Foobarista August 9, 2013 at 4:34 pm

So, if you use a public backup service, you waive your 4th Amendment rights? How is this different from putting a hard drive in a safety deposit box at a bank?

Andrew' August 9, 2013 at 6:08 pm

Despite the wrong-headed interpretation creep that has destroyed the 4th amendment, the topic at hand is whether the government has now made it impossible to even protect your privacy through encryption, etc.

Jeff August 9, 2013 at 1:34 pm

I have no doubt that Alex’s meaning is perfectly clear to Ladar Levison the owner of Lavabit.

badumpdump August 9, 2013 at 3:27 pm

Alex’s title essentially says, “Is the Prohibition on Unreasonable Searches Now Illegal?

That doesn’t work, he means to say. Are nreasonable Searches Now Legal, or Is the Fourth Amendment Still Good Law, etc. “Illegal” doesn’t work here, even for Ladar.

Andrew' August 9, 2013 at 3:34 pm

Actually it does. Snowden try to enforce the 4th amendment. He had to break the law. It works fine.

It’s also a meme. Alex didn’t make it up.

Adrian Ratnapala August 9, 2013 at 6:08 pm

Alex is claiming that (certain kinds of) attempts to directly protect your 4th amendment rights are illegal. The analogy is a law banning the use of envelopes when sending physical mail.

Yes it is sloppy wording. Is this really a big deal?

Rahul August 10, 2013 at 12:37 am

Sloppy wording is indeed a big deal especially when discussing constitutional law. Many a case has been won or lost based on the exact wording of a critical clause.

dan1111 August 10, 2013 at 2:07 am

Rahul, this is a blog post, not legal proceedings. There is a world of difference between the use of language in the two. I don’t see evidence that anyone has failed to understand what Alex is saying.

SS August 10, 2013 at 1:27 am

Are people like the first commenter criticizing the headline pretending to be obtuse/stupid in order to change the focus?

Norman Pfyster August 10, 2013 at 2:19 pm

No, the sentence was gibberish. The first sentence of the post was a perfectly intelligible sentence with which to launch a discussion.

Emanuele August 10, 2013 at 7:00 am

To summing up one side of this discussion:
- If you are not experienced in the legal jargon “you should really stay away from legal commentary”. With “Legal commentary” is intended “speaks about your constitutional rights”.
- A blog discussion should have the same rules and priorities of a court house. “Sloppy wording is indeed a big deal especially when discussing constitutional law. Many a case has been won or lost based on the exact wording of a critical clause.” If I speak in a sloppy way of my constitutional rights, I could have they removed from me.

When discussing about a political issue, attacking the jargon when the meaning is obvious is why people hate lawyers. You are not in a courthouse, out of there comments on the wording are just annoying.

I do not have a problem with lawyers in general. In this discussion for example, Dan Weber goes to the point: the fourth amendment protects this but not that. It does not kills the discussion, rather it fosters it. I can disagree with him and we can discuss about the intent and the wording of the Amendment, if the cloud should be my considered among “persons, houses, papers, and effects”. I think the intent of the amendment is clear, the wording is not because probably Madison was not thinking to the cloud when writing.

Norman Pfyster August 10, 2013 at 2:29 pm

To have a discussion, you have to talk intelligibly. Asking “Is the Fourth Amendment illegal,” is not an intelligible question. Asking whether the Fourth Amendment protects your right to encrypt email is a reasonable basis on which to conduct a conversation.

Alex K. August 9, 2013 at 1:32 pm

This should also be quoted from the Lavabit website:

“This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.”

Meaning, all that US action can hope to achieve is to move email encryption services to Iceland or some such — zero effect on curbing secrecy, negative effect of US businesses.

mavery August 9, 2013 at 1:40 pm

I think this guy’s just overly-optimistic about the way other countries will treat “private” data.

Alex K. August 9, 2013 at 1:50 pm

You’re likely right about unencrypted data — but an email encryption service like Lavabit should be able to find a home in a country less willing to strong-arm such services.

Alexei Sadeski August 9, 2013 at 2:26 pm

Perhaps for a while.

William August 9, 2013 at 3:29 pm

Why you would trust sensitive emails to a central server in the first place is beyond me.

DK August 9, 2013 at 10:02 pm

Anything transmitted over Internet passes some kind of a central server.

William August 10, 2013 at 12:14 am

No, no that is not true.

bob August 12, 2013 at 3:52 pm

It’s only not true if you are picky about your definition of central server, and in a way that does not really make any sense for security purposes.

Even if you control both endpoints, you will go through a network infrastructure that passes your messages along, and which you do not control. You can encrypt the data you send, but that’s no different than, say, storing your secrets in a google drive that you encrypted yourself.

And even if you do said encryption, you’ll either run into the limitations of public key crypto, or will need a safe, off band way of sharing keys.Heck, how do you really now that the public key that a site gave you is really theirs, and wasn’t replaced in transit by a different one set by an attacker?

So, for all intents and purposes, you have to trust a bunch of third parties. You can make the attacks a bit harder, but nothing is truly secure on the internet when the attacker is a US government agency that is actually interested in your data.

Rahul August 10, 2013 at 12:42 am

@Willits:

Good point! What these events have shown is that the only (possibly) workable way is to use end-to-end encryption. Once something sensitive leaves my disk it should already be so strongly encrypted that even a NSA tap right at the buildings cable-box shouldn’t be able to read the data.

Ironically for a lot of communication modes (e.g. email, documents, pictures etc.) this technology is fully within the reach of the common man and at close to zero cost (not zero time spent though) too.

The lessen I draw is that most people (including me) just don’t care enough. The hassle of fully secure communication outweighs the benefits.

dan1111 August 10, 2013 at 2:13 am

Obviously, you could only communicate with others who also are willing to do encryption themselves, act as their own email server, etc. That would be somewhat limiting.

Rahul August 10, 2013 at 2:33 am

No, you don’t need people to “act as their own email server” All you need is a plugin and some initial key-exchanges. Yes, the recipient has to invest some fairly trivial time in decryption. I’m not saying this is something my grandma should do. Nor am I condoning NSA spying.

All I’m saying is, the best way to do it is end-to-end. Else you’ll have this external vulnerability, and CIA-NSA are hardly the guys to trust.

buddyglass August 9, 2013 at 11:22 pm

This bit is important: “trusting their private data to a company”.

I’m pretty sure that by handling my own encryption I could communicate with someone over the internet in such a way that the NSA couldn’t access the plaintext data unless they had access to either my computer or the computer of the person with whom I’m communicating. It would just be a big pain in the ass to do all that stuff “by hand”.

dirk August 9, 2013 at 1:39 pm

We now live in a police state, but hardly anybody cares. Americans only care if the state recognizes gay weddings or not.

Andrew' August 9, 2013 at 1:46 pm

They might care if they weren’t being lied to. At least, we’d have to try that first before concluding.

dirk August 9, 2013 at 2:03 pm

But they don’t even care they are being lied to. They only care about gay weddings.

Andrew' August 9, 2013 at 2:08 pm

To be fair, they don’t really care about gay weddings.

dirk August 9, 2013 at 2:25 pm

Gay weddings are the most important civil rights issue of our time!

Andrew' August 9, 2013 at 2:28 pm

Like I said, lying. Maybe a lot of people have anxiety and cognitive dissonance concerning the actual important issues.

anon August 9, 2013 at 2:30 pm

We now live in a police state

Five years ago many people would have said this was hyperbole. I suspect that today many fewer people would say it is hyperbole.

Thousands of videos of police misconduct are in part responsible.

http://www.youtube.com/results?search_query=police+misconduct

Andrew' August 9, 2013 at 2:35 pm

Well, we had the misconduct a long time before the videos. As I’ve said I still think we are still 5 years off from enough people becoming aware of what I and others have been describing for a decade. It’s still almost a 10 year process for people to switch from being reflexively pro cop to just believing their own eyes.

Anyway, they learned their lesson. If you had video of the NSA violating your privacy it would be illegal for you to show anyone.

Andrew' August 9, 2013 at 3:12 pm

Those videos just go on and on, don’t they. I’d like to get one of those cowards in a room without their gun, tazer, and government impunity. Then they can try to be tough.

dan1111 August 10, 2013 at 2:27 am

I still believe the “police state” language is hyperbolic. Police misconduct is certainly something to be concerned about, but a police state is a place where people’s lives are controlled in a systematic way. That is not the United States.

As for “believing my own eyes” , I have never seen police abuse their power, in all of my interactions with police they have been professional and helpful, and I have never been afraid of being arrested on false charges, having to give a bribe, etc. I don’t know anyone who has been a victim of police misconduct, either. This is just anecdotal evidence, but in a police state such activity is pervasive and everyone has firsthand experience of it.

Given that there are nearly a million police officers in America, it’s not surprising that there are some who act inappropriately. But there is no evidence that this is anything other than a tiny minority of cases.

White August 10, 2013 at 7:38 am

“I have never seen police abuse their power, in all of my interactions with police they have been professional and helpful… I don’t know anyone who has been a victim of police misconduct, either”

I don’t know about you personally, but this is generally a good proxy for “I’m white and middle class and I don’t know very many blacks and/or poor people.” Also, relatively rare misconduct may be nothing new, but the disturbing trend of overly militarized SWAT police certainly is (see Radley Balko)

The Other Jim August 9, 2013 at 8:49 pm

If the President were Republican, the media would be enraged about the police state, and would be working 24/7 to make sure everyone else was too.

But he’s a Dem. So all is good, and anything goes!

Skip Intro August 9, 2013 at 9:06 pm

You’re absolutely right! That’s why everything the Bush administration did post-9/11 received the utmost scrutiny.

mike August 9, 2013 at 9:16 pm

And the weakest snark of all time award goes to… the envelope please… !

mulp August 10, 2013 at 12:23 am

Oh, so young, so young….

Even in the 60s were didn’t think we lived in a police state even though there was so much more spying on Americans and so much of the budget was black and never admitted to.

You are just upset that you are spied on equally to liberals and enemies like me under the rule of law that requires equal protection of the law, or in the case of government search, you are searched just like me, and the FBI file on you will be the same size as the one on JFK or MLK if they lived today. I assume I’ve got a file because I fit the profile for enemy of the state: Quaker, registered pacifist, liberal, supporter of civil and voting rights,…

But it was worse being black and saying the same things Wayne LaPierre does and carrying guns like Tea Party activists – the police went after them with guns. Black in the 60s means terrorist today.

Mike August 9, 2013 at 1:53 pm

Encrypting your data and your messages is entirely legal, and not particularly difficult. The problem is that encrypting a message may hide the contents, but it does not hide the fact that a message was sent, and it does not hide the identities of the sender and the receiver.

Various services can offer to secretly handle the delivery for you, but if they are served with a warrant, they cannot be expected to maintain their pledge of secrecy for their clients.

Furthermore, the encryption itself is insecure if they computers at either end are vulnerable to intrusion, or if either party to the communication can simply be arrested and compelled to surrender their passwords. Indeed, either party might even be impersonated by law enforcement officials as the communications continue.

None of this is new; everything I have just described has been the default state of affairs since email was invented.

What is new is that it is much, much easier for law enforcement (in particular, the NSA) to actually do these things on a large scale. The vulnerabilities were always there, they have simply become a more realistic threat.

Mike S August 9, 2013 at 2:03 pm

Not a threat. Based on what has been leaked out, it appears to be standard operating procedure.

Todd August 9, 2013 at 2:09 pm

I think this is correct. And it’s more or less the same with snail mail, no? You have a reasonable expectation of privacy as the contents of your mail, but not to the facts that you mailed the package from post office X, to person Y, and that the package weighed Z.

Andrew' August 9, 2013 at 2:17 pm

How do we get from: anything that someone might notice, the government can spend your money to tabulate and store in huge databases to use against you, leak whenever they wish, and gag the people they are forcing to keep it from letting you know?

Answer: lawyers

MD August 9, 2013 at 4:12 pm

That’s like blaming gun manufacturers for gun violence. Lawyers just try to achieve their clients’ goals. Sometimes those clients are governments. If you want to change a government’s goals, get a new government.

Andrew' August 9, 2013 at 4:27 pm

Tryin’.

mulp August 10, 2013 at 12:40 am

Well, you must be voting for the wrong people to represent you in Congress, you know, the We the People part:

The House is controlled by the Party who long ago declared Obama their biggest enemy, and they are saying this about what Obama said about gaining the trust of the people by working with Congress, which is where We the People are represented:

“We need a president who defends our intelligence programs, explains them appropriately to the American people, and uses every legal capability in his arsenal to defeat al Qaeda,” King said.
Brendan Buck, a spokesman for Speaker John Boehner, said the reason for Americans’ concerns could mostly be attributed to the lack of explanation from the administration.
“Transparency is important, but we expect the White House to insist that no reform will compromise the operational integrity of the program. That must be the president’s red line, and he must enforce it,” Buck said. “Our priority should continue to be saving American lives, not saving face.”

Read more: http://www.politico.com/story/2013/08/obama-nsa-reaction-95399.html

Of course, a prominent member of that party is Karl Rove who put it this way:

“Conservatives saw the savagery of 9/11 in the attacks and prepared for war; liberals saw the savagery of the 9/11 attacks and wanted to prepare indictments and offer therapy and understanding for our attackers.”

No courts, rule of law, judges, juries, lawyers in war: just the authority of the gun and bomb.

Those weak liberals who insist on rule of laws passed by Congress and overseen by courts will never keep you safe.

Alan Coffey August 9, 2013 at 3:01 pm

They are collecting it all in Utah. They can crack the encryption at their leisure. The act of encryption might just be a clue for them to look. In fact, the reason they are collecting it all in Utah is that they failed to create a supercomputer that could do real-time decryption of 128 bit encryption a few years ago at Oak Ridge National Lab. Had that project worked, they might not have gotten to the point of collecting all of the internet in Utah (since they could have looked into whatever they wanted in real time)_.

Dan Weber August 9, 2013 at 3:22 pm

something something perfect forward security something

albatross August 9, 2013 at 3:41 pm

Alan:

I don’t think you quite understand what you’re talking about. People have built brute-force key cracking hardware for various ciphers for demonstration purposes, they’ve specced out larger keysearch machines, and the crypto community has a pretty good handle on how difficult it would be to build a machine to brute-force 128-bit keys. It’s nowhere near practical. Nobody is going to be brute-forcing 128 bit keys with existing technology and even NSA’s astronomical black budget.

Now, it’s always possible that NSA or some other secret agency (pretty much every country has a sigint agency) has broken a particular cipher, like AES or RSA. However, both those algorithms are quite well understood, having been analyzed extensively in the public crypto literature. (AES came out of a competition done out in the open, and was designed by a couple of very highly regarded Belgian cryptographers in the academic crypto community.) It’s also far more likely that many crypto protocols and implementations have flaws that let someone read your conversations. This is a good reason to use good crypto, and to prefer well-researched protocols and implementations done by people who know what they’re doing.

On the other hand, what we know from all these disclosures is that NSA is recording and scanning and acting on a *really vast* quantity of electronic communications. The prudent assumption at this point is that anything you send out over the internet is being recorded and scanned, and may ultimately lead to some human looking at it or marking you out as a person of interest. If you encrypt those communications, you make automatic scanning harder. You require someone to spend more time, more resources, to record the ciphertext rather than scanning it and classifying it. The more people encrypt their traffic, the worse the economics of this massive spying gets. If every email were encrypted with a random 40 bit key (40 bit keys are a joke, a few minutes’ work on a computer to break), it would become massively, unworkably more expensive to scan and process everyone’s emails.

Massive domestic spying isn’t happening because Obama (or Bush, or Alexander) are evil people. It’s not really even happening because of 9/11 and the war on terror, though that has surely helped with getting funding and legal approval. It’s happening because of economics–it’s possible to record and process everyone’s email, to make a database of every communication between every person and run algorithms to extract information from the social networks, to select a subset of information to store in some compressed form for later perusal by spies. Since it’s possible, and doing so would make some powerful peoples’ jobs easier, we started doing it. Since people at the top really didn’t want a terrorist attack happening on their watch, they approved it.

Encrypting everything, end to end where possible, is the only way we have right now to make the economics not work. Go get https everywhere. Go get GPG and exchange public keys with your friends. Go download the TOR browser bundle. None of this is magical spy repellent. There are and will be flaws in these and other programs, as there have been published attacks on TOR onion services and various SSL and TLS ciphersuites. But there is a massive difference between having the bad guys (or even the well-intentioned guys who don’t know where to quit, which is a better description) see everything in the clear, and having them see everything encrypted, even with crypto that’s imperfect in various ways.

Andrew' August 9, 2013 at 4:06 pm

“yes, we can”

So THAT’S what that meant!

mulp August 10, 2013 at 1:03 am

It is being done because real conservatives will not let the law get in the way of keeping you safe.

And when liberals get involved, they decide to compromise with conservatives, who win elections by promising to not let the law get in the way of keeping you safe, by making domestic spying legally reasonable by making it law and applying it equally to everyone because the Constitution gives you protection equal under the law to that of any terrorist.

The tension is you get pissed at the ACLU when it says “they” can only be searched if “you” are searched, and then you get pissed when the ACLU says “they” must be considered innocent until proved guilty beyond a reasonable doubt, just like “you” are innocent until proved guilty.

Conservatives are pissed now that Obama is saying Congress should debate it without taking all the heat for it all – what does he think this is? A democracy? A republic?

dan1111 August 10, 2013 at 4:34 am

@mulp, poor liberals, being sucked into this activity by evil conservatives! They are the real victims here.

It doesn’t matter that the head of government who has direct authority over this activity is a liberal; it is still the conservatives’ fault that it is going on! And you wonder why conservatives might be angry that Obama is not taking the heat for it.

albatross August 10, 2013 at 1:31 pm

Perhaps you should put on your team jerseys and start cheering for your favorite football teams? This would be exactly as informative and interesting as turning a discussion about news and laws and policies into a discussion of whose team is better.

Rahul August 10, 2013 at 12:46 am

+1

Agree! End to end encryption is the only way to defeat government spying. Ironically, it’s not that hard to do even.

buddyglass August 9, 2013 at 11:33 pm

“The problem is that encrypting a message may hide the contents, but it does not hide the fact that a message was sent, and it does not hide the identities of the sender and the receiver.”

Steganography can help hide the fact that a message was sent. Ubiquitous free Wi-Fi makes it easier to avoid the association of IP addresses with actual identities.

Otherwise I agree with pretty much everything you said.

prior probability August 9, 2013 at 2:03 pm

Alex is right … What the NSA spy ring, civil forfeiture laws, airport screenings show us is that the US Constitution has become a worthless piece of paper

Andrew' August 9, 2013 at 2:12 pm

It is in fact “illegal” in the sense that not only can we not rely on the government to fulfill the obligation, that’s not even a question. They are in fact penalizing anyone who would do their job, gag ordering them from talking, and are prosecuting any whistleblowers.

If you are enforcing 4th amendment protections, you are likely in violation of our new fiat state.

Ray Cathode August 9, 2013 at 2:20 pm

Hardly anyone cares about their own constitutional rights until they suffer intensely from their lack. Even fewer care about the constitutional rights of others.

anon August 9, 2013 at 2:23 pm

One need not have an actual conspiracy to achieve the practical effects of a conspiracy. More regimes have been brought, piecemeal, to their knees by what was once called “Irish Democracy,” the silent, dogged resistance, withdrawal, and truculence of millions of ordinary people, than by revolutionary vanguards or rioting mobs.

James C. Scott, in Two Cheers for Anarchism

http://books.google.com/books?id=hVlcak8fbEgC

Alexei Sadeski August 9, 2013 at 2:27 pm

Alex,

Evidence collected by the NSA is still almost always inadmissible in court.

Andrew' August 9, 2013 at 2:31 pm

Doesn’t that potentially make it even scarier?

Mogden August 9, 2013 at 2:38 pm

Who cares about courts? Just disappear the perp.

Alex Tabarrok August 9, 2013 at 2:45 pm
Dan Weber August 9, 2013 at 3:24 pm

Tech Crunch, the National Enquirer of the tech world.

Privacy people need to get their shit together and form a lobby, and part of getting their shit together is realizing that not every single scary story is true. “But it could be true!” is the hallmark of the outrage artist.

Andrew' August 9, 2013 at 3:36 pm

Just like PRISM wasn’t true?

Just like they are still denying it?

How ’bout rather than it being my job to start a lobby, how ’bout we start with the President stops lying?

Dan Weber August 9, 2013 at 3:41 pm

how ’bout we start with the President stops lying?

If posting that over and over again is getting you the results you want — and maybe it is, if what you want is a sense of outrage rather than any change — than by all means don’t let me dissuade you. Everyone needs a hobby.

Democracy isn’t something you leave on auto-pilot and then take a nap.

Andrew' August 9, 2013 at 3:52 pm

Do you admit he’s lying?

Actually, just being right is fun for me, even if others never even come to grips with it.

roystgnr August 9, 2013 at 4:03 pm

http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805

Reuters, the non-National-Enquirer original source for the story.

If my link gets mangled by the commenting software, you could alternatively get there by actually reading past a paragraph and a half of Alex’s link, like you should have done in the first place.

albatross August 9, 2013 at 4:50 pm

Reuters story on the same program

Remind me again, is Reuters also the National Enquirer of the tech world?

mike August 9, 2013 at 9:20 pm

Listen, bud. Like many commenters here I voted for Obama. So you better shut up about the guy I voted for, okay? I don’t understand all this national security/privacy mumbo jumbo except that it was bad under Bush (who I FUCKING HATE, that IDIOT) and now under Obama it’s COMPLICATED, you idiot. So just shut up, you dumb stupid idiot.

Alexei Sadeski August 9, 2013 at 4:47 pm

None of the NSA evidence was used in court, according to that article.

The DEA used the NSA data to direct investigations. And even this is illegal, hence the cover up and refusal of at least one prosecutor to pursue charges once the source of the investigation was discovered.

albatross August 9, 2013 at 4:59 pm

Yeah, this program is *great*. The authorities do not use eavesdropped data to prosecute you. Instead, they use eavesdropped data to determine when and where to send a policeman, who then finds some pretext to search you (“he looked suspicious and my drug dog barked after I held a treat up over his nose”) and finds whatever you were carrying that might have been illegal.

My prediction is that it will come out that this has been used much more widely than is now known. This pool of information is so valuable to so many people, for good and bad reasons, that now that we know it’s been being shared out with DOJ and DEA, it seems almost inevitable that it will also be being shared with a bunch of other people. IRS? SEC? ICE?

This is not likely to end well for us.

Ernie August 9, 2013 at 2:48 pm

I don’t get from this that the goverment forced the shutdown of Lavabit because it provided a way for users to utilize encrypted communication.

I could be wrong, but my interepretation is: Lavabit was being used to commit “crimes against the American people.” This is why the creator shut it down. The creator became aware of the fact that Lavabit was being used in this way through actions of the US government. He his forbidden to speak about these actions and believes that is wrong.

Cliff August 9, 2013 at 4:54 pm

No, the crimes against the American people are committed by the U.S. government using Lavabit to get their personal information.

Robert H. August 9, 2013 at 2:51 pm

I’ve personally worked on trials where we got improperly collected evidence thrown out for fourth amendment reasons. It is still useful and it is clearly not illegal to invoke it.

Ok, now we can go back to discussing this issue in a non-stupid way.

Andrew` August 9, 2013 at 3:06 pm

All you are proving is inconsistent enforcement and that you get hung up very easily.

I.e. you are probably a lawyer ;O

Robert H. August 9, 2013 at 3:32 pm

I do get hung up. I don’t like obvious hyperbole because I think it weakens the argument being made and seves as a distraction to listeners. If Alex had said “are there significant problems under the fourth amendment with the government shutting down this company?” then this comments section would contain a different and better set of arguments. The post would also have gotten less attention. I consider it a bad trade off, so I am going to point out the obvious: as phrased Alex’s question is stupid, he knows that, and he should feel bad for phrasing it that way.

But you are right, there is a real issue here and elsewhere in 4th amendment law.

Also, do you ever get a rise out of lawyers by telling them lawyers suck? Of course we suck. Who does not know that?

Andrew' August 9, 2013 at 3:44 pm

Actually, the point I’m trying to make is I think I know why lawyers suck. To get hung up on lawyers sucking is to miss the point. The point is that we have an adversarial system that rewards those who can best twist the meaning of words and finagle loopholes. I have a sneaking suspicion that it is further tilted towards the government…I know, almost inconceivable. By definition, the earnest lose. Thus, the answer has to be less law. Less paragraphs re-interpreting the prior re-interpretations of the amendment.

Anyway, ask Snowden, the guys encrypting e-mails, or the compliance departments of internet and cell phone providers if helping people be secure in their papers is or isn’t illegal?

Robert H. August 9, 2013 at 4:07 pm

A deadly trap on a filing cabinet would help you be secure in your papers, but for centuries deadly traps have been illegal. It does not follow that “the fourth amendment is illegal.” No one would interpret the fourth amendment to say “you have a completely un constrained power to do anything that makes your private papers safer” and no one interprets rights in general in such a way that “this right is violated” means the same thing as “this right is illegal.”

And the problem with simple laws that don’t require experts is that the universe itself is not simple. So simple rules, when applied to a complex universe, rarely align with our sense of justice or with efficient governance. The result is that too broad of rules are made that either 1. Reach mechanical but often unjust results, or 2. Try to reach just results by creating enormous discretion on the part of legal actors. Of course, there are obvious problems with complex laws too. It’s a difficult balancing act along several dimensions (simple vs subtle and mechanical vs capable of discretion), and here and thete we probably haven’t gotten it right in both directions along both dimensions, depending on the area of the law you are looking at. So yeah, the system could work better and lawyers often prosper by its disfunction, but the solution is not a simple one.

Andrew` August 9, 2013 at 4:14 pm

You can look at where we are (The 4th is almost gone and really is arguably illegal since the only people protecting it are being prosecuted) and realize that we have had successive interpretation creep.

Carl Milstead described it as the difference between lawyers and engineers. Lawyers take the newest interpretation as the baseline whereas engineers take note of tradeoffs and try to fix them in the future.

Robert H. August 9, 2013 at 4:40 pm

The fourth amendment is stronger than it has been for most of US history, in that A. It applies against the states now, B. A strong exclusionary rule exists, and C. The exclusionary rule applies to the states. That was not all true until 1961. Bad decisions have been made since then and I think the fourth amendment is often violated, but the primary people who work to use and expand it, criminal defense attorneys, continue to get to fight that fight.
Again, I have helped use the fourth amendment, as applied against the states, to get people out of jail. Invoking and fighting for the right in court is not illegal in any meaningful sense (though too difficult at times). Some private innovations that could help secure papers are illegall (sometimes unconstitutionally illegal), but that has always been true. Anyone who looks at all this and says “the fourth amendment is illegal” is doing it for shock value and to get attention, not because they are trying to accurately communicate or change minds. Or takes “a right is abused” to mean “a right is illegal,” in which case they all are.

NeedleFactory August 9, 2013 at 8:36 pm

Robert H said “Some private innovations that could help secure papers are illegall (sometimes unconstitutionally illegal), but that has always been true.”

I would like to learn more about that.

Rahul August 10, 2013 at 12:49 am

@Andrew:

I’d probably love to hear from a lawyer on this. Might as well hear about the legal reality than some armchair version of what the Fourth Amendment Law should be in someone’s fantasy.

Mori Kopel August 9, 2013 at 2:56 pm

I suggest this for a new privacy amendment: “Regarding the fourth amendment: We really mean it.”

albatross August 9, 2013 at 3:48 pm

Maybe we could put that at the end of the whole constitution? Make them actually declare wars in congress, really don’t let them pass laws violating the freedom of speech even when it’s really icky speech, the whole bit?

Andrew' August 9, 2013 at 4:16 pm

Point of order, we can discuss separately whether the amendment is being flaunted and then later discuss how to make it harder to flaunt.

We don’t have to accept or reject both concepts together.

Floccina August 9, 2013 at 3:01 pm

Didn’t the 13th amendment nullify the fourth?

William August 9, 2013 at 3:04 pm

“Violations of the fourth amendment by the federal government encourage the use of encryption but that avenue may now be blocked”

How exactly is encryption undermined here? I think the shutdown of these encrypted email services show a further shift toward decentralization (tor, i2p, freenet), not an undermining of encryption per se. Now if the government proposed that SSL be backdoored or something, then you would have a point.

Andrew' August 9, 2013 at 3:08 pm

Alex, I for one don’t get a brain hang on a single word of a blog title ;)

William August 9, 2013 at 3:19 pm

“In 2003 I said the cyber-libertarians were naive to dream of a new world of privacy and liberty built on the foundations of the internet and public key cryptography”

The cyber-libertarian vision is too ambitious for the reasons you cited in your 2003 post, but perhaps it would be better to say that there will be two worlds: one where the government/corps know all, and another based on anonymity.

Example: I want to send a funny cat video to my friend. I don’t particularly care if the government or Google know about my interest in funny cat videos, so I will use gmail. I am living in the mainstream, public world.

Now say I am a dissident or criminal and I want to send information to my comrades. I will use tormail and PGP end-to-end encryption that will both protect my privacy and anonymity. If I needed to make a payment, I would use a cybercurrency. This is much more inconvenient, and I would never use this method under normal circumstances. Now I am living in the cyber-libertarian world.

And maybe the existence of both of these two worlds is what is socially optimal.

albatross August 9, 2013 at 3:46 pm

Seems more like that’s a world where normal people have no privacy, but bad people and paranoids and crypto people have privacy. That may be better than nobody having any privacy, but it’s not a good outcome. A good outcome is that my phone calls to my mother (who will never, ever be downloading a crypto app) are encrypted end to end by default, that people who have never heard of the discrete log problem and don’t know TLS from ESL still can’t have their web browsing eavesdropped on.

anon August 9, 2013 at 4:28 pm

Educate your mother on the importance of digital privacy. People like her need to start expressing outrage before politicians care about this issue.

Rahul August 10, 2013 at 2:37 am

The two worlds need not stay distinct though. If tech-history had evolved a wee bit differently, who knows, PGP may have been the default way to do things.

My point is, the hassle overheads of encrypted communication aren’t prohibitive. It’s just legacy choices (including the openness of the internet) that made “non-encrypted” be the default.

Cyrus August 9, 2013 at 3:34 pm

The search part of the fourth amendment has always been unenforceable: the only thing that happens when the state conducts an unreasonable search is suppression of evidence, and suppression only matters if the state is looking for trial evidence. When the state is looking for intelligence outside the context of buidling a case for trial, the fourth amendment only applies to the extent that the elected government is willing to enforce it.

Andrew' August 9, 2013 at 3:55 pm

That is itself a mis-interpretation (by lawyers). Nowhere in the amendment does it say “we can go fishing as long as we promise to only use that to snoop for other admissible evidence.” The point being, let’s go back to the amendment rather than the poison pill adulterations- if the amendment is useless, it’s not because of the text of the amendment.

Bill August 9, 2013 at 3:39 pm

Funny post.

Shows that Alex believes that a court issued subpoena for documents in the hands of another could violate the 4th amendment.

Learn something new, and false, here every day.

Andrew' August 9, 2013 at 3:46 pm

Court?
Subpoena?
Documents in the hands of another?
FISA isn’t a really court. You are assuming everything is requested and collected properly (I assume otherwise). And what in the plain language of the amendment would not protect my papers in the hands of another?

Andrew' August 9, 2013 at 3:48 pm

For one, let’s say that my information is really Google’s information. Google tried keep it. Government won’t let them. Now, Google won’t put up much of a fight, but it’s still a violation.

Dan Weber August 9, 2013 at 3:53 pm

Oh well Bill, at least you tried.

Andrew' August 9, 2013 at 3:57 pm

Make.
An.
Argument.

For example: “No Andrew, they actually did specify what they were broad net fishing for.”

Except that would be wrong. Thus, they are not following the amendment even in their secret court rubber stamping. Thus Bill is WRONG.

Dan Weber August 9, 2013 at 4:05 pm

“FISA == SEKRIT COURTS!” is also not an argument.

Oops. I should say “is not. an. argument.”

You have muddled half-a-dozen different topics here altogether. One cannot engage with bullshit.

If you are upset with the current state of the law (and you should be — but sometimes you say you are, other times you say you are just having fun, when you don’t want to take the time to seriously engage someone who has an issue), then you really need to understand the individual components of it and the actual legal arguments. You do not understand the law.

Bringing FISA courts suddenly into the discussion just demonstrates that.

Andrew' August 9, 2013 at 4:09 pm

Yes it is.

Because the Subpoenas Bill is relying on to be proper cannot be proper under secrecy that was intended for national security but in practice serves only to provide impunity and lack of accountability. I’m sorry if I’m using shorthand.

Or that they’ve rubber stamped virtually all the “requests.” Or that the requests cannot possibly contain specific warrants.

Andrew' August 9, 2013 at 4:19 pm

Turns out, Obama agrees with me, when embarrassed- even though he has to lie in the mean time to save face.

http://www.huffingtonpost.com/2013/08/09/obama-surveillance-reform_n_3733090.html

John August 9, 2013 at 5:01 pm

No, it shows that Alex thinks that the 3rd party doctrine in Katz v. United States was wrongly decided. An eminently defensible position.

Andrew` August 13, 2013 at 4:24 am

I offered to go step by step through each interpretation creep.

Ken August 9, 2013 at 4:18 pm

The reason federal bureaucracies now completely ignore the fourth amendment is because politicians see no need for it. Politicians see no need for it because Americans reelect politicians, overwhelmingly, who don’t care about it.

Jessiiiiiiii August 9, 2013 at 4:30 pm

Not only did governemnt violates Fourth Amendment, but they also reward to the ones who stays quiet about their plan with tax payer’s money. If Lavabit’s owner decided to
shut his company with no benefit, he will definately struggle to not suspend his hard work. However, it seems like governnemt have paid him quite generous bonus by
making him shutting down the operation and providing them with Edward Snowden’s letter and information. Government don’t care spending large bucks to keep their dirty
secrets shut by spending tax payers’ hard-earned money.

Andrew` August 9, 2013 at 5:22 pm

For those who only believe it when explained by lawyers.

http://www.thedailybeast.com/articles/2013/07/24/the-secret-fisa-court-must-go.html

dead serious August 9, 2013 at 5:32 pm

Time to dump your Bitcoins,

mishka August 9, 2013 at 5:42 pm

————————————————–
Dan Weber August 9, 2013 at 4:00 pm
Stored communications are different than communications en route.
If you mail me a letter, once I have it, the government does not need a warrant against you before I can turn it over to them voluntarily.
———————————————–
I have never in my life addressed an email to specifically Google or NSA.

Doug M August 9, 2013 at 7:39 pm

Interesting that the Supreme Court has determined that citizens do have a right to privacy. And this right to privacy suggests a right to contraception and to abortion.

But, when it comes to actual privacy… no, not protected.

(I am pro-abortion, but the legal reasoning in Roe v. Wade is tortured)

Doug M August 9, 2013 at 7:46 pm

While on the subject of the 4th amendment, it should totally apply to cars.

CBBB August 9, 2013 at 7:48 pm

You know, I always came to read MR for the feel-good, optimistic outlook on things – all will work out in the end if you work hard, and study hard, those sorts of nice fairy tails but now I see reality has penetrated finally even here. For all you commentators here who still kling to the belief that all is right in the world, when even Marginal Revolution starts taking a dim view of things, you have to realize things are truly is dire straits.

Alex Fan August 9, 2013 at 9:29 pm

Lawyer here. Alex is right. “The right of the people…to be secure….in their papers and effects” is effectively abrogated when the government essentially forbids encryption.

Bill August 9, 2013 at 11:17 pm

AlexFan,

Sorry. You can encrypt, and the government can subpoena documents in your possession or in the possession of others with a court order, including an order for the decryption key. You should read the Fourth Amendment. Here is a wiki for you to read under the category: search or unreasonable search: http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

Andrew' August 10, 2013 at 2:10 am

Again, Bill. There are no specific requests for what is being warranted.

Lawyers are at least supposed to be able to read.

Even under the tortured misinterpretations that have gutted the 4th, what is happening now is a further abridgment.

This WILL GO to the SupCo and be struck down. Wanna bet?

Bill August 10, 2013 at 8:35 am

Andrew, A subpoena which has “no specific requests for what is being warranted” is vague, uneforceable and overbroad, and thus dismissable within the law. I really don’t understand what you are saying and suggest that you read something about subpoenae or search warrants.

Andrew` August 13, 2013 at 4:21 am

And what about the part where they are ploughing ahead? What about secret unaccountable rubber stamping for the government? What about official parallel construction?

Bill, you are becoming the weirdest person to try to talk to by Far.far.

Mike Hess August 10, 2013 at 3:28 pm

You’re omitting the critical clause in that sentence “against unreasonable searches and seizures”. The 4th provides no protection or implied security against reasonable searches. You can encrypt whatever you want, but the government can force you to decrypt something in the course of any reasonable search.

What makes a search reasonable? A warrant, although there are exceptions.

Andrew` August 13, 2013 at 4:23 am

Proper warrants.

Hint: they ain’t

Duh

Garrett August 9, 2013 at 11:51 pm

The Fourth Amendment isn’t illegal, it’s just not upheld. Police can seize your assets (civil forfeiture) for any reason and even if you are never convicted of a crime. Your house can be raided at any time as well by heavily armed SWAT teams. If you have dogs, they will be shot by police (seriously).

But as long as you don’t try to shake things up, you should be okay.

Andrew' August 10, 2013 at 2:08 am

The Congressmen and Senators who have been trying to inform the American people about the abridgment of the 4th were barred from doing so.

Thus, it IS ILLEGAL,

Garrett August 11, 2013 at 1:52 am

Andrew, if you have nothing to hide, then you have nothing to fear.

Unless you have surfed the web recently (accessed computer servers without authorization), in which case you’ve committed a felony. Or done just about anything else online or offline.

We have an absurd number of laws and an increasingly militarized police (across fed/state/local levels). Crime has gone down and police ranks have increased, moving the focus to more trivial crimes that increasingly snare people unaccustomed to dealing with the legal system. We should get used to this “new normal” as I don’t see it changing.

Marie August 10, 2013 at 10:32 am

Interesting, and I think much of this discussion has to do with what people think reality is.

Talked to tech support a few weeks ago about a service issue. I told him such and such service had been cut off. He told me the records indicated that it had not been. I said, that’s interesting, but it was cut off. He insisted it was not cut off, because his records indicated it had not been cut off. He seemed to genuinely be unable to recognize the difference between objective reality and his computer screen — if the Mac says it is, it is.

Reading the above, I’m seeing a lot of “if the legal trail says it is, it is”. Seems to me it’s a philosophical disagreement from folks who think the right is one based in legal precedent and interpretation and folks who think the right is, well, you know, unalienable and endowed.

Which doesn’t mean my personal interpretation rules — no sola scriptura there. But there’s a difference between saying the right exists independently of interpretation (with interpretation designed to “see” the right more clearly) and saying the right exists as a function of the interpretations.

Joe Smith August 10, 2013 at 2:08 pm

The point of failure in these secure systems is the central server. It should be possible to create a secure (encrypted) email system based on peer to peer principles. With no one in charge, there would be no place to go serve the court order.

Garrett August 11, 2013 at 12:34 am

@Joe
Agreed. Such technology exists, such as PGP, and private keys (used for decryption in asymmetric cryptosystems) can be kept locally, not in the cloud. But adoption isn’t mainstream for consumers, who find such manual key exchange confusing. Further, the model has trended toward cloud-based (Gmail), wherein everything is in the cloud. Security and convenience need not always be antithetical, but in this case, they seem starkly in opposition. Given consumer and business realities, the solution must be political, wherein the electorate demand privacy and transparency.

Joe Smith August 11, 2013 at 1:54 pm

People are concerned about the possibility of abuse. Unless there is evidence of real abuse by government agencies it is unlikely that the political desire for privacy will win out over the political desire for security. Given that the DEA’s “Special Operative Division” is actively falsifying the history of investigations, real abuses may never come to light. http://www.theguardian.com/world/2013/aug/06/justice-department-surveillance-dea

Garrett August 11, 2013 at 9:38 pm

Joe, if you’re arguing that we should be cynical about the sincerity of recent calls for reform and their likely outcome, then I agree with you.

John August 11, 2013 at 3:24 pm

“In my view the fourth amendment is routinely being violated by the federal government.”

I don’t think your opinion is necessarily unfounded, though I personally disagree. However, I’d honestly love to hear your reasoning rather than just a fiat statement. What is and is not protected under the Fourth Amendment changes depending on your locality and circumstances (stop and frisk, the height of fences, what kind of wifi security you’re using, whether you’re in a moving car). It is a dangerous over-simplification to claim that telephony metadata (among other incidents) is “automatically” covered under the Fourth Amendment just because it sounds “obvious.” Apologies if such a justification is elsewhere on the blog and I’ve missed it.

I recognize your original post was about a different aspect of this story, just sayin’.

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