That's not a line, that's a bunch of stuff you think is over it. Fine, but where's the line?
Supporters of such surveillance have a fairly simple test, and one that's more or less supported by current law and Constitutional jurisprudence: If it's metadata that must be voluntarily exposed to a third party (e.g. a pen register) it's unprotected by the Fourth Amendment. As to actual data, if it crossed national boundaries because one participant can be reasonably determined to be outside the U.S., it can be examined for the same reason your luggage can when you cross the border.
But those aren't mutually exclusive under U.S. law. All these programs now have FISA warrants, so at least one court "ordered" them. I assume you are unhappy with FISA as it stands, but how would you change it? If you're going to require the NSA to name each and every person whose data they might want to collect, you're going to drastically limit their ability to collect information from foreign sources in an era of throwaway email addresses and burner phones.
I would prevent the NSA from being able to wiretap for 7 days without a warrant.
I would prevent the NSA from using Vampire Taps in Fiber Optic networks.
I would allow the disclosure of National Security Letters and I would block indefinite duration gag orders (10 years is fine; infinity is not).
I would hold our intelligence organizations accountable for lying to the public.
I would enact a new wiretapping act to prevent these domestic abuses.
I would only apply these changes to domestic surveillance.
Would I trade security for this liberty? In a heartbeat.
The punchline for all of this is simple: all of the ridiculous intelligence and security apparati we've developed since 9/11 don't make us any safer, and, in fact, inspire the very terrorism we seek to disrupt. The $X0Billion dollars we spend every year could be used for much better purposes, like going to Mars.
Generally: When you say "only apply these changes to domestic surveillance", you mean any program that requires intercepts to happen on U.S. soil, even if one of the participants can be determined to be outside the U.S.?
More specifically:
I would prevent the NSA from being able to wiretap for 7 days without a warrant.
How do you deal with a "hot" investigation, wherein some subject of intense interest calls/emails a previously unidentified subject, who then calls/emails a third party? For the sake of argument, assume they're all from IPs outside the U.S., but using Skype through U.S. servers. (If your definition of "domestic" doesn't fit this, adjust as needed).
It seems to me you have three choices:
- Don't intercept the latter communication. Wait (minutes, hours?) until you get a judge's order on the new subject, while hoping the latter two subjects communicate again, and that no critical intelligence is lost.
- Allow for broad-ranging warrants that either give an agent discretion to follow leads regardless of the actual individual involved, or instead allow for "drag net" style intercepts that are later filtered for relevance per a FISC-approved process (this is essentially what we have now, as I understand it.)
- Allow backdated or 7-day-forgiveness warrants. (Again, what we have now.)
Is there an alternative?
Many of your other points I agree with, or at least agree they're proper grist for an intelligence oversight bill. Separation of powers is a real issue, though: Congress can't tell the executive how to run national security operations any more than it can tell the executive how to run a war. It has the power of the purse, but we don't live in a parliamentary system. If you don't like the way the President uses his Constitutional powers, vote for another guy/gal.
I think it's facetious to imply that the NSA cannot get a warrant anytime it wants. My answer as a hacker would be that the justice system should make an API through which the NSA makes these requests and the judges reply. It would be both fast and logged. Make the logs classified for 25 years; just not infinity.
A "Hot" investigation is one that will likely have a judge standing by, if that becomes the standard by which the NSA must conduct its business. What I am objecting to is the idea of anonymous, unquestionable, omniscient wiretapping. That's quite different from pursuing a case.
To put it explicitly: It is not an equitable social compromise to tap all of the data at a switch versus tapping a known session or known port. The NSA has the capability to tap anything they want, it's just easier to take everything.
What I'm pissed about is not that the NSA is wiretapping people. You should know the NSA is wiretapping people. What I'm pissed off about is that the NSA is so lazy that they dragnet everything instead of tapping the stuff they need. Sifting through everything looking for an indication of crime is very different from tactically selecting specific instances for evaluation.
Again, I believe in the capabilities of the US Intelligence agencies and I believe they are smart enough to not require a dragnet to do their work. It's not really Voldemort evil, they want to protect us. The problem is laziness; the banality of evil.
I was reluctant to answer directly for the OP, and have probably already posted enough on this topic, but thought your question about domestic spying disingenuous - there are plenty of examples of things people might be upset by, and no need to ask for proof of US domestic surveillance - we probably know very little of what goes on ('the tip of the iceberg'-L. Sanchez), and what we do now know is shockingly extensive.
Personally as a foreigner my opinion is probably unimportant to you, but I don't think the NSA should be attempting blanket surveillance at all, foreign or domestic, whether data crosses borders or not - there should be public courts deciding on each request on an individual or organisation, with search warrants granted where it is deemed in the public interest, connected directly to an ongoing investigation - decisions could be kept secret for n days. What I would allow are tapping of all devices/contacts for a single person over an investigation. This would dramatically limit the effectiveness of the NSA by design. The most effective spying or police agency is one with a camera in every room and a tap on every phone - that's not a world I want to live in, and I see no problem with limiting their effectiveness, just as we ban certain arms from warfare because they are indiscriminate and awful in their effects.
I also think the analogy with pen registers that you are drawing is not appropriate given the advances in technology meaning data can be mined and kept for lifetimes, collated, and cross referenced globally in an instant. That's an entirely different world of surveillance, and one we are just coming to know. It makes old distinctions obsolete, and demands new rules for a world without frontiers - borders are now permeable, whether we like it or not, and they don't have as much meaning as they used to.
Your argument about data crossing borders is a great example of this. So many Americans use services overseas and vice versa that drawing some distinction between foreign and domestic traffic in this world is meaningless - if you say things that cross the border are fair game, you're giving the NSA power to perform dragnet sweeps of virtually the entire world, as virtually everyone's data will cross borders as some point in its existence. Imagine an American company with London offices - suddenly all their correspondence is now acceptable for surveillance without a warrant.
Mining global internet traffic and telephone metadata is extremely dangerous and potentially wide-reaching in its effects. It could easily be used to reveal any journalists' sources (no more free press), politicians' past affiliations private or public, people's donations, health details, reading preferences, purchases etc. Worse than that data collected in 2001 could be used in 2021 by a hostile NSA director against annoying journalists/rivals/judges to destroy their career for some sexual peccadillo irrelevant to their professional work. To have that much data collated on someone over a long period of time is very dangerous - for the person concerned, and for the organisation which does so. I simply don't trust any one organisation with that sort of power.
So I'd draw the line a bit closer to personal privacy and public transparency than the OP I think, but that's ok, it's great to have this conversation at last, and we have Edward Snowden to thank for having a little more knowledge with which to do so.
I'm not ready to thank Edward Snowden for anything yet. While I agree with almost all of your points, my reasons for advocating domestic surveillance have more to do with expediency than morality.
I agree that surveillance of any kind is wrong, but I can't see a world without foreign surveillance of some kind. That's not to say that one can't exist, but I don't see how it would come to fruition.
Therefore, I agree with the spirit of your argument but disagree with its practicality.
Fair enough and thanks for outlining your views in this and your other post - it's very interesting to hear them, and I'm sure many Americans will be feeling ambivalent about Snowden and what he has done.
I accept it might sound idealistic but it seems impossible to me to draw distinctions (particularly of rights) with borders any more, given that data flows so extensively across them, and the American distinction between citizens and others with no rights starts to sound particularly callous if the country's institutions arrogate the right to decide on global issues.
Supporters of such surveillance have a fairly simple test, and one that's more or less supported by current law and Constitutional jurisprudence: If it's metadata that must be voluntarily exposed to a third party (e.g. a pen register) it's unprotected by the Fourth Amendment. As to actual data, if it crossed national boundaries because one participant can be reasonably determined to be outside the U.S., it can be examined for the same reason your luggage can when you cross the border.