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Snowden's Constitution vs Obama's Constitution
from the constitutional-analysis dept
Edward Snowden is not a constitutional lawyer. But his public statement explaining his decision to blow the whistle on what he and Congress both know to be only the "tip of the iceberg" of state snooping secrets expresses a belief in the meaning of the Constitution: in a democracy, the people not his defense contractor employers or the government that hires them - should ultimately determine whether mass surveillance interfering with everyone's privacy is reasonable.
Some have tried to minimize the import of the snooping exposed by Snowden on the grounds that the government is just storing the information it gathers, and has not yet searched it. The Fourth Amendment of the Constitution prohibits "unreasonable searches and seizures." Seizure the taking of private information is what the government has now been forced to admit in its decision to prosecute Snowden for telling the truth about their secret seizures. Whether or not the state ever chooses to "search" the seized information, the universal, non-consensual seizure itself of what used to be called "pen register" data grossly invades individual privacy and vastly empowers government, all in violation of the Constitution if "unreasonable."
The Supreme Court reads the Fourth Amendment's "unreasonable" test to mean not "objectively reasonable," United States v. Leon, 468 U.S. 897, 922 (1984). This would mean "reasonable" as viewed by ordinary citizens - like Snowden. The Fourth Amendment is a unique exception to the Constitution's general choice of representative democracy ("a Republican Form of Government," Art. IV, §4) over direct democracy. The term "reasonable" appears nowhere in the Constitution except in the Fourth Amendment, although it is a concept well-known to law. For example, legal negligence is a breach of what a jury determines a "reasonable man" would do in the same circumstances. A similar standard has been imported into Fourth Amendment determinations. The Supreme Court long ago said that "probable cause for a search exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place." Carroll v. United States, 267 U.S. 132 (1925). So what the public deems reasonable is what the Constitution means by reasonable. Though public opinion is always relevant to interpretations of the Constitution, this is the only context where the Constitution directly assigns to the people the power to determine what the Constitution means.
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A strong case can be made that Snowden is right. Hence there is no need for him, or his supporters, to concede that he has broken any law. According to the Supreme Court, "it remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." California v. Acevedo, 500 U.S. 565 (1991) (quoting Katz v. U.S.)
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https://www.techdirt.com/articles/20130703/00121023700/snowdens-constitution-vs-obamas-constitution.shtml
ProSense
(116,464 posts)I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President if I had a personal email.
Do you stand by that, and if so, could you elaborate?
Answer:
Yes, I stand by it. US Persons do enjoy limited policy protections (and again, it's important to understand that policy protection is no protection - policy is a one-way ratchet that only loosens) and one very weak technical protection - a near-the-front-end filter at our ingestion points. The filter is constantly out of date, is set at what is euphemistically referred to as the "widest allowable aperture," and can be stripped out at any time. Even with the filter, US comms get ingested, and even more so as soon as they leave the border. Your protected communications shouldn't stop being protected communications just because of the IP they're tagged with.
More fundamentally, the "US Persons" protection in general is a distraction from the power and danger of this system. Suspicionless surveillance does not become okay simply because it's only victimizing 95% of the world instead of 100%. Our founders did not write that "We hold these Truths to be self-evident, that all US Persons are created equal."
http://www.guardian.co.uk/world/2013/jun/17/edward-snowden-nsa-files-whistleblower
Snowden doesn't understand the Constitution.
BenzoDia
(1,010 posts)I thought he said the leaks shouldn't be about him.
We should honor his wishes.
The Link
(757 posts)I think he must have slept through some of his classes.
Catherina
(35,568 posts)The Magistrate
(95,247 posts)You do not decide whether an action is reasonable under law just by asking the first fellow you meet if he thinks it is okay or not.