See: http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightof... ("The U. S. Constitution contains no express right to privacy. The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as the privacy of beliefs (1st Amendment), privacy of the home against demands that it be used to house soldiers (3rd Amendment), privacy of the person and possessions as against unreasonable searches (4th Amendment), and the 5th Amendment's privilege against self-incrimination, which provides protection for the privacy of personal information.") (emphasis added).
The NSA's actions seem pretty precisely tailored to stay on the "right side" of the Constitutional line, avoiding the specific aspects of "privacy" protected by the Constitution.
It could still be regarded as a failure even if it is not a breach (and I hold no position on whether it is or isn't a breach).
Electronic communications were clearly not considered by the authors of the Constitution and the Bill of Rights (understandably) but they were clearly trying trying to impose limits on the power of the state and I think the idea that the government should be allowed to track all of everyone's associations would have been abhorrent but that is the practical effect of the monitoring that has been revealed.
> Electronic communications were clearly not considered by the authors of the Constitution and the Bill of Rights
But they did have communications and publications, yet they didn't put anything in the Constitution suggesting you have a right to privacy with regards to those things. And it's not like bank records, insurance records, etc, didn't exist back then. In the founder's day, the police could have asked a barkeep for his records to see when you came and went. Why is it suddenly so "abhorrent" when the government asks AT&T for the same sort of information (i.e. not your information, but information AT&T keeps about you)?
The issue here is that all of these data sources are third parties.
> the police could have asked a barkeep for his records
Asked. Asked. And he could have said "come back with a warrant".
You continue to ignore the distinctions between:
* A party voluntarily cooperating with law enforcement.
* A party being coerced to cooperate with law enforcement by court order.
* A party being coerced to cooperate with law enforcement because law enforcement officers say so.
You keep insisting the government has a right to access any information someone reveals to a third party without a warrant, even if that third party did not intend to and does not wish to reveal it.
What precedent exists for this? If there is any at all (and this will be the third time I've asked you for it), does any of it pre-date 2001?
> Asked. Asked. And he could have said "come back with a warrant".
But if he said "here they are" or they came back with a warrant or a subpoena, there is nothing you could've done about it.
With regards to the NSA accessing call records, there is a warrant from the FISA court (which itself dates to 1978). In case of PRISM, there is voluntary cooperation by the companies involved. There is no indication that third parties are being coerced to cooperate just "because law enforcement officers say so."
The government accessing the information without the consent of the third party would be a 4th amendment violation, not of your rights, but of the third party's rights. But that's not happening here.
> But if he said "here they are" or they came back with a warrant or a subpoena, there is nothing you could've done about it.
Assuming lack of contract, absolutely correct. I've never disputed that, I don't think anyone else has, either. Have you been attacking a strawman all this time?
> With regards to the NSA accessing call records, there is a warrant from the FISA court
A very broad warrant. A general warrant. Precisely what the founders forbade in the 4th Amendment.
> In case of PRISM, there is voluntary cooperation by the companies involved.
I decline to speculate on what PRISM does or does not include, as the reporting right now is an unclear mess.
> There is no indication that third parties are being coerced to cooperate just "because law enforcement officers say so."
Since FISA obviously can't be trusted to provide meaningful oversight, I think the general warrant issued for the Verizon data qualifies.
> The government accessing the information without the consent of the third party would be a 4th amendment violation, not of your rights, but of the third party's rights.
I still haven't seen you cite any actual precedent explaining this.
> But that's not happening here.
The general warrant is an obvious 4th Amendment violation, whether it's violating Verizon's rights, their customers', or both.
NSLs are clearly "because law enforcement says so", so now I wonder, on what basis do you defend those?
