PRISM Does NOT Violate the Fourth Amendment, No Matter What Oliver Stone Says.

The overwrought nature of the concern over the NSA surveillance activities that were supposedly “uncovered” by Edward Snowden is alternately hilarious and frightening, and it is severely misplaced. It is highly cynical and either displays an extreme level of ignorance or, if we’re to look at it a bit cynically, it’s being used to exploit the ignorance of others. It’s actually probably a little bit of both. For example, check out this video from the ACLU featuring Oliver Stone that I stumbled across this morning:

Is PRISM actually a violation of our Fourth Amendment rights? Is the NSA really doing something that puts us or our rights in danger? Now, obviously, given our history, such a thing is not unprecedented, and it is possible. They have spied on us in the past. But based on the information provided by Edward Snowden and other available information, the answer right now is a resounding “no.”

First, let’s start by actually reading the Fourth Amendment, since many of those who wax eloquent about it (like Oliver Stone) seem to have no idea what it says:

The right of the 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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (emphasis added)

Note the adjective in bold. What is “unreasonable.” PRISM doesn’t seize anything. Via warrants (that word is in there, too), they are requesting information from phone and Internet companies and getting it. That information doesn’t actually belong to you. The content of the phone calls and emails are private, but you are accessing the people on the other end using equipment owned by someone else. The only thing you technically own is the phone. At most, the NSA performs something of a search function, but is it unreasonable? Given that it’s the functional equivalent of a video camera scanning the crowd at Times Square on New Years Eve, IF Times Square could hold 300 million people, how “unreasonable” could it possibly be? Is the contents of the call to Aunt Bessie to find out about Uncle Phil private? Absolutely. But is the physical electronic connection between 213-555-1212 and 415-555-8765 really private? That’s pretty difficult to claim.

You probably use Google or Bing on a daily basis. Have you ever considered what a search engine does? Basically, it “crawls” through every single website on the Internet to find those most relevant to the search you made. Even though you only see the results, the search engine saw single website. Even if your site is password-protected, you consider the information private and include some code in your site that tells the Google bots to skip it, Google still has to crawl your site to find that code. Is that an invasion of privacy?

This is the functional equivalent of what the NSA’s computer software does. They only have metadata; that means anonymous information. Okay, I suppose if your email address is ( @ISP), they could figure stuff out. But they won’t see the email address unless you emailed a suspected or known terrorist or other bad guy. They do NOT have names, addresses or content. An NSA analyst gets hold of a phone number connected to a bad guy, runs it through their database, and the only thing that analyst sees are the matches. And even then, the analyst doesn’t get any identifying information without obtaining a warrant,  which they can only get by demonstrating probable cause to a FISA court. Read the Fourth Amendment again; it’s not violative at all, based on anything Snowden has revealed to us. Is it possible they are violating the law? Sure. But there’s no evidence here.

A lot of hay has been made about the FISA court being “secret,” which is kind of funny. Everything that happens in court is secret until you look it up. Also, judges make decisions every day that are sealed for a variety of reasons, that no one ever sees. It’s not like you are entitled to see everything a court does. Therefore, if you’re going to use your lack of knowledge as a guide as to what’s “secret,” you’re already logically challenged going in. Yes, FISA is secret, because publishing the content of every subpoena would mean bad guys could just change tactics and blow people up somewhere else. Is that worth it to you? If terrorists blow up another marathon and kill dozens because hamstring the NSA with a paranoid notion that the ten digits of our phone number or our IP address are somehow sacred, how is that “reasonable”? 

When I make an argument like that, these folks will usually break out the Benjamin Franklin quote:

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.” (emphasis added)

Again, they will miss the adjective, “essential.” Even a relative free spirit like Ben Franklin qualified the word “liberty.” Claiming that your phone number or IP information, when not attached to your name, qualifies as an “essential liberty” is probably stretching a bit. Ever hear of a phone book? And expecting total privacy as you surf the web is the functional equivalent of running down the Interstate naked and demanding privacy. Next time you go to a website, look at the ads, and notice how many of them are for websites you’ve recently visited. Doesn’t that seem strangely coincidental? Everything you do and everywhere you go on the Internet leaves a footprint. Have you ever wondered by you have to log in at those places offering free wifi, even if you don’t have to give them your email? It’s because they’re tracking you. Not for any nefarious reason, but just in case you’re participating in something illegal, they can tell authorities when your computer signed in, and when activity stopped. There is little to no privacy on the Internet; it’s a very public place. If you don’t want to be seen, you have to disguise yourself; it’s not automatic.

Also, PRISM is not secret. The details of the surveillance are secret, but its existence is most certainly not. And the NSA has very strict parameters wherein they can work. They are forbidden to target anyone within the United States. If you don’t believe me, then read the FISA law that many of us advocated for from 2006-2008, after we found out Bush was conducting such a program without oversight. We demanded the oversight, remember?

Section 702 sets out the NSA restrictions:

[The N.S.A.] (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States;
 (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and
 (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.

Put simply, this fantasy of the NSA using our phone numbers and IP activity to round us all up into camps is absurd. The NSA is staffed with civil servants who went through a security screen that 90% of those people imagining black ops couldn’t pass. Note the invocation of the Fourth Amendment in the law. See that? In order to get past a FISA court, the NSA has to comply with all of the above restrictions. And while many folks seem to view the fact that FISA hasn’t rejected any subpoenas as a negative, you should see it as a positive; it means the NSA is following the rules, and not trying to bend them. And there is absolutely no point in FISA allowing the NSA to violate the law, since such a thing would eventually fail in the courts. It’s not possible to convict anyone based on illegally obtained evidence. I suppose they could “disappear” you, but unless you have evidence of that happening, save it.

PRISM is also overseen by Congress. The NSA briefs Congress on the results of their surveillance on a regular basis. And the Congresspersons who are briefed run the gamut, ideologically; they are not all right wing hawks.

Finally, if you want to understand the details of how PRISM is conducted, don’t go to a film director who thinks everyone killed JFK. Instead, go to a journalist who has studied this stuff and written about it extensively, and who was instrumental in demonstrating the problems with the Bush surveillance plan, Kurt Eichenwald. Read the brilliant piece he posted at Vanity Fair last month, and you’ll find out that the paranoid fantasies of some of these doomsayers are just completely off the wall.

It’s a fact that people want to kill Americans. It’s also a fact that the Constitution charges the government with the duty of protecting us. There are lines they shouldn’t cross when it comes to privacy. But nothing in any of Snowden’s disclosures indicates that they have crossed any kind of line. In fact, it’s the opposite.

Is it “whistleblowing” to advise everyone that the government is following the law?


PRISM Does NOT Violate the Fourth Amendment, No Matter What Oliver Stone Says. — 13 Comments

  1. Milt,

    Do us a favor. Can you provide a link to these “debates”? Maybe you got something on record that we could read?

    You say that “TWO YEARS, we advocated for and got, a very strict set of rules to protect our privacy. That you’re unaware of it doesn’t mean it didn’t happen.

    Well, given what we got NOW, Uncle Miltie, I’d say your “advocacy” has proven inadequate to disincline the scandal we have now.

    Snowden Is A Hero.

    • You don’t even know what we have now.

      As for the debates, go look it up. I’ll start you off with this: but you’ll have to do your own research for the rest. I’m not a babysitter.

      We have no scandal. If you think the NSA has too much latitude, them advocate to Congress for stricter guidelines. But the NSA is not acting illegally, and they have significant oversight. There is no scandal. I hope you realize the irony of calling Snowden a hero, as he’s awaiting on a decision on asylum in Russia.

      • Milt,

        Thanks for the link.

        You still need to calm down (as you are asking the rest of us to do on the NSA matter). Frankly, it appears the NSA is in fact acting illegally as all Americans are now subject to its purview instead of actual and identifiable threats to Americans. But, in referencing the claim that the NSA is not breaking the law, John Oliver from The Daily Show brilliantly summed it up: “I think you’re misunderstanding the perceived problem, Mr. President. No one is saying you broke any laws. We’re just saying it’s a little bit weird that you didn’t have to.” If that’s true, it is weird – and scary.

        Would that be thanks to your “advocacy”, Milt?!

        However, the ACLU is claiming that laws are being broken and is citing its claims in a suit brought against specific agents of the Federal government. In paragraph 36 of the suit, this is written: “The Mass Call Tracking exceeds the authority granted by 50 U.S.C. Sect 1861, and thereby violates 5 USC Sect 706.” Paragraphs 37 and 38 claim violations of the First and Fourth Amendments, respectively.

        The ACLU might well be proven wrong. But I think we and the rest of the world really do have something to be worried about and we will be paying attention. Your insults against us for not quite yet buying in entirely notwithstanding.

        • I give up. You’re clueless. For one thing, John Oliver is a COMEDIAN. Second, the ACLU is the group behind the Oliver Stone video. I addressed this.

          But last, and most importantly, I support MY opinions with FACTS, and you support yours with other opinions. That’s essentially how right wingers think.

          Now, before you go off on that, I am not calling you a right winger. I’m just saying that it’s the same frame of mind. As long as you can cite someone else’s opinion as being the same as yours, you think you’ve made your case. You haven’t. You can’t. The ACLU injunction will probably be tossed, by the way. And in no stretch of anyone’s imagination is compiling metadata the same as “snatching every American’s address book.”

          As for you paying attention, I doubt it. I see no signs of it so far.

  2. Below is a commentary to Mr. Eichenwald’s writing, to which said “journalist” did not see fit to respond even as he found the time to reply/insult those who dared to disagree with him. I am not a techie, and I find the techie stuff head-ache making. And irrelevent. “Musicalmissionary” gets to the point, and gets it right.

    Jun 19, 2013

    @kurteichenwald @musicalmissionary Nice try, but defending our government’s over-classification of information only demonstrates how bogus your self-assigned “civil libertarian” label is. I agree SOME things can/should be kept secret (like names of CIA agents), but a surveillance program that logs every citizen’s phone call metadata, including location, is not one of them. That is precisely the type of taxpayer funded government program that needs to have INFORMED consent from The People. This program doesn’t even have informed consent from our representatives. Senator Merkley recently said:

    “Because of the highly classified nature of opinions issued by the Foreign Intelligence Surveillance Court (FISC), Members of Congress cannot publicly discuss, let alone debate, the way that the executive and judicial branches are interpreting the law. And without disclosing and debating the interpretation of the law, it is a fruitless exercise to debate whether and how to change laws which we are periodically asked to reauthorize.”

    Informed consent requires consent from ALL stakeholders. In this case, that includes The People!! No matter how you spin it, the current level of secrecy, no wait, the pre-Snowden level of secrecy, surrounding the extent of NSA surveillance on Americans, is absolutely positively unquestionably unacceptable… no matter how many years you’ve “reported” on it.

    And spare me the “who is he to decide what’s right and wrong” BS. What he revealed to Hong Kong was no more obscene than the indiscriminate surveillance of our government, which I confidently propose is in clear violation of the Fourth Amendment. Before you spew some self-serving antiquated purported knowledge of constitutional law, please see my other post below. In an era where our elected representatives are beholden to monied special interests rather than the public interest, we certainly can’t count on them to distinguish right from wrong. We need principled whistleblowers, especially smart ones who, contrary to misinformationists like yourself, do not put people’s lives in danger, but rather leak information smartly to inform The People of their government’s transgressions.

    Nobody disputes the government has a role to play in national security. The valid debate is over what balance to strike between liberty and security. The hardcore libertarians will argue that no amount of liberty is worth sacrificing for [the illusion of] security. Moderates like me argue that some amount of liberty is worth sacrificing, for example surveillance subject to rigorous judicial oversight (i.e., search warrants), in return for some extra security. And please don’t insult our intelligence by claiming the FISC is anything but a rubber stamp (approving 100% of 5,000+ requests from 2010-2012 with only 39 “modifications). Claiming there’s nothing new to see or talk about here, or that we are all just twisting facts to fit our preconceived ideas, is blatant hypocrisy. In fact, nothing could better describe your own resistance to acknowledge you blew the story by ignoring the extremely relevant FACT of the highly secret nature of the way the government and FISC have been using the law you claim is plain as day. YOU are the one trying (miserably) to twist facts to fit YOUR preconceived idea that you presumably embraced during your seven years of “reporting” on the NSA.

    I think you fell in love with your “reporting” a little too much.”

    I might quibble on a little with the writer’s statement that the issuance of a warrant results in a loss of a litte liberty in exchange for security. I disagree: getting a warrant PROTECTS our liberty and privacy and security. The point is that watching ME is not implicated in watching suspected terrorists and gangsters and child molesters. But besides watching those types, we also need to watch our goverment, too. But that requires that the public be informed as to its acts (and no, I don’t need to know the name of an undercover cop who investigates gun runners) in order that we may debate said acts, especially since those could place us all, the innocent with the guilty, at risk. That all of the information disclosed by Snowden was SECRET is the real scandal that only slightly dwarfs the other disturbing one that our goverment is — yes, IS — spying on us. And our European allies and the Brazilians[?!] I don’t recall consenting to any of that, and neither do our representatives.

    By the way, I also live here and the Swede is right. As a Black American I can tell you how damn scary the US is. I have been racially profiled multiple times (I even wrote an article about it for a local Long Island newspaper) and given the outcome of the Martin-Zimmerman trial, it may be stated that the Swede does know what he is talking about.

    • The public knows about this surveillance. I was present when we debated this shit for TWO YEARS, from 2006-2008. I suspect you were, too. The existence is not a secret. The only thing secret in what Snowden uncovered were classified details. That you didn’t know about it doesn’t make it secret. You also claim to know nothing about tech, yet you have no problem speaking authoritatively about that. Metadata has no identifying information. NSA analysts won’t even your phone number unless you called a number believed to have belonged to a terrorist, and even if you did, they need probable cause and another warrant to do so. They have no idea who’s black, white, brown, purple or green, because they have no identifying information, so invoking the Zimmerman trial is just clueless. Next, you’ll compare Zimmerman to Obama on drones.


      The FISA court is a court. It’s not a cabal of black ops paranoids. They look at classified evidence and issue warrants. Warrants are required under the Fourth Amendment.

      Our European allies don’t own the data; their phone companies and ISPs do, and they must have had a warrant; they wouldn’t have just given the data to the NSA.

      You talk about the “balance” between liberty and security. There’s a database. It has phone numbers, times and dates, and metadata from emails. There is no identifying information there, and the only data anyone at the NSA even sees comes when a call matches the known terrorist’s known phone number or email. Put simply, how can anyone be spying on you, if they don’t even know who or where you are, and they can’t find out your name, nationality, religion or anything else without a warrant? How can it be more balanced than that? NSA analysts only have a plain phone number.

      And you’d better get over your headaches about the tech stuff, because knowing about that is crucial to understanding this issue.

      One last thing; the FISA law forbids – FORBIDS – the NSA from targeting anyone in the United States. That means they’d have to pass it on to a domestic law enforcement agency, who would have to get a warrant themselves. Look at that; three to four layers of protection for your right to privacy. Compare that to driving your car, where someone could conceivably look at your license plate number and discover all kinds of things about you. Or the Internet, which is tracking your every move, even as we speak. There is actually more government protection from the NSA than from Microsoft, Google or the RIAA/MPAA creeps.

      And Sweden is not right. Not even a little. And Snowden is a coward, not a hero.

      • First, Milt, you need to calm down. You write at the top of your lungs and it is not necessary. You also need to show a little compassion to those who are not tech savvy, as it is not the job of Americans to know the ins and outs of tech stuff in order to be secure in their persons and effects from government intrusion. When this nation was founded, most Americans at that time couldn’t figure out a printing press without some intense training. But none would claim that this understanding was a requirement to be able discuss one’s First Amendment rights under Federal law, or be subject to its protections.

        You say Europeans don’t own the metadata – I wouldn’t know, and you’re probably right. But they do own their privacy from our government, and the breach of that privacy by our government is not something they are grateful for. Accessing their, our, and the Brazilians’ metadata… I still cannot see where the wall between that and our privacy is located. So they won’t read my crappy scripts, so I should feel better? Who needs content, when metadata – according to reports on NPR (yeah, I know..) – is far more revealing to a secret spy agency than their discovering my inability to write a third act in a fourth rate screenplay meant only for my associate’s eyes? I’m sorry, but I cannot rest easy yet.

        You say we “debated” this — who is this “we” to which you refer? When did this “debate” happen? I followed, as any average American who tries to be reasonably informed can, the debates that gave us the Patriot Act. I don’t recall any mention of the government telling us that we just surrendered to them the metadata of our e-mails and phone calls and the movie I am editing on my iMac and sharing with my cohorts on Vimeo, and that the government is grateful for our co-operation. Maybe I missed that — as I am sure you will tell me I did.

        Today’s “Democracy Now!” (which will feature your fave, Mr. Greenwald) headlines this bit: “The National Security Agency has admitted its collection of phone and internet data exceeds what it has previously disclosed. Testifying before Congress, NSA Deputy Director John Inglis revealed analysts can perform what is called a ‘a second or third hop query’ that moves from suspected terrorists to the people they communicate with, and then to others those people are in contact with, and beyond.” I don’t recall signing on to that, either, and I don’t recall any discussion or debate that this is now the law of the land. You say FISA forbids this. The NSA just admitted to the opposite, or they would have mentioned the FISC warrants having been issued to permit this activity of an exponential expansion of the scope of data gathering.

        As for the corporate creeps that track my every key stroke, I ain’t so pleased with that either. I hope there is some way in the works — privacy activists, I am reading your works on your info sites so I am trying to stay informed — to put some kind of enforceable check on their privacy violation beyond always issuing lawsuits. But there is one important difference. MicroGoogle cannot yet send goons to my house at 2:34 am and take me to Gitmo due to an errant keystroke. The government can. All it has to do is ask for MicroGoogle for a log of those keystrokes. They needn’t read its “content” – just see the pattern strokes demonstrate. Where is the threshold to demonstrate my criminality? I will never be the wiser as no one is obligated to tell me. Oh, I will get a “national security letter’ – and so will my boss, my fellow activists, my landlord… And as for someone finding things about me by looking up my drivers’ plate numbers, I agree that such a person by this mean can indeed learn a lot. But that person is going to have legal barriers placed in his path should he act on what he learns. Those barriers are knowable and enforceable — and unlike the laws and ex-parte arguments referenced in a FISA court briefing — available to public knowledge. Even if, like most of us, you don’t follow their sausage-like manufacture in our legislatures.

        It is the secrecy that rankles first; the un-constitutional acts come in a close second.

        Lastly, Snowden IS only a hero. And he has just been cited as a candidate for the Nobel Peace Prize (which he won’t get) by some SWEDISH academics because they believe in the rightness of his actions. As well, they claimed in a statement that they want their country to make up for the error of giving that prize to President Obama. They also need to make up for giving it to Kissinger.

        • I also wanted to add this.

          This government has all the money in the world to “protect” us, but cannot find a dime to educate us, provide universal healthcare under a single payer system, fix our bridges and tunnels, expropriate the ill-gotten gain of the Wall Street Banksters (after jailing them and not just fining them for mere nickles and dimes) and re-distribute it to families losing their homes. We can’t find the money to invest in a green economy, but we gots all kinds o’ cash for the scooping of “all of it” around the world.

          But in the very face of that I am supposed to believe that this global metadata trolling is all for MY benefit?


        • I’m calm. I’m also tired of people who have either not read the article or don’t understand it making points that I have already addressed. You also need to write shorter comments. It’s not your blog, and you’re tiresome as hell.

          Again, you don’t know what you’re talking about. You admit that straight out. So, you commenting on this would be like me giving a review of one of the Twilight books. I’ve never read one.

          By the way, the Nobel Committee doesn’t “cite” candidates. In fact, nominees are kept secret for 50 years; they only release the names of winners. What you have is one Swedish academic CLAIMING that he nominated Snowden. IOW, another case where you simply cherry pick what you want to believe, and pass it off as fact.

          One last thing. I’ve told you when we debated this, both in the article you either didn’t read or didn’t understand. Stop asking me when we debated this, as if I never mentioned it. TWO YEARS, we advocated for, and got, a very strict set of rules to protect our privacy. That you’re unaware of it doesn’t mean it didn’t happen.

  3. No, he is actually 100% right. The fact that you American people can not see this scares me a lot
    I used to like a lot about your country but the police state you are starting to become is crazy. Stop it before it is too late!

    • We live here. I have been active politically for 41 years. You telling me how scary the US is would be like me telling you what it’s like to live in Sweden. Snowden is NOT right, and you don’t know what you’re talking about.

  4. Oliver Stone mentally never left the Nixon administrator or ‘Nam. Everything is a big cover-up or conspiracy by the big bad government. So no surprise he’s jumped on the Snowden bandwagon.

    • It did depress me that he did so under the ACLU’s auspices, but you hit the nail on the head…