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Comment by ef4 | Hacker News Reader

The legal theory that the bill of rights only applies to US citizens is dangerous and wrong.

It applies to actions of the United States government. It is a list of things they may not do.

No, tptacek is right... if you are a foreigner living abroad, the bill of rights does not apply to you:

In 1957, the court changed its position, overturning decades of precedent to declare that American citizens are in fact protected against U.S. government misbehavior by the Bill of Rights even outside the country. Unfortunately for the rest of the world, the court limited its ruling to U.S. citizens. Foreigners remained stuck with the old rule that the Bill of Rights doesn't apply abroad.[0]

So US citizens are protected whether they are within US borders or abroad. And foreigners are protected if they are within US borders... but once they leave, it no longer applies.

[0]. http://articles.latimes.com/2005/dec/16/opinion/oe-raustiala...

It's also pretty hard to argue that prior to 1957, anyone in the USG needed to get a warrant to collect intelligence information from foreign soil.

Right.. Prior to 1957, US citizens did not even have rights outside of the US. From the same article:

So when, in 1880, American diplomats in Japan "tried" and convicted one American for killing another in Yokohama Bay, they did not need a jury to convict. When the defendant asserted that his 6th Amendment right to a jury trial had been violated, the Supreme Court declared "the Constitution has no operation in another country."

I found the actual case.. if anyone wants to read more, it was Reid vs Covert:

http://en.wikipedia.org/wiki/Reid_v._Covert

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354...

Hold on....

If a foreigner is protected while in the US, is accountable to the US if he/she breaks US law from abroad, and accountable if he/she breaks US law while visiting the US in the form of visiting a US web-server, (we foreigners are said to have visited US jurisdiction if we use US based services, there for we can be extradited) why then, if a foreigner's data is on US servers or systems, is his/her data and privacy not also protected under US law, if a foreigner is protected while in the US.

If we are said to have visited the US and there for come under US law if we use US services, then surely it must also apply that the data we leave behind is also protected.

Well, US jurisdiction only applies when it's convenient, and the same goes for rights ;)

I think its rather that no one has tested the above argument. The judgement was in 1953, so it had nothing to say about the internet or data stored in the US.

You're right, it's hypocrisy in action.

I wonder if a panel of lawmakers were given all of this to make recommendations on, without secrecy, gag orders or political prejudice, if we'd have very different situation today.

I'm aware that the court has interpreted it that way. That doesn't make it any less wrong.

    To consider the judges as the ultimate arbiters of all constitutional
    questions is a very dangerous doctrine indeed and one which would 
    place us under the despotism of an oligarchy. - Thomas Jefferson,1820

I will also note that the data in question was within the United States, where all property, whether owned by foreigners or not, is protected from unlawful search and seizure.

What warrant did Jefferson serve on the Barbary Pirates?

Fallacy fallacy?

The First Barbary War was a declared war -- declared first by the Pasha of Tripoli against the US and explicitly recognized as a state of war in several acts of Congress subsequently -- so its hardly relevant.

Well, "recognized as" hardly amounts to a declaration of war. Congress did authorize use of military force though, but technically only against Tripoli, not Algiers or Tunis. So the question remains open in general.

> Well, "recognized as" hardly amounts to a declaration of war.

Congress has the power to declare war, but (a) that power doesn't require any particular language, and any authorization of military action, as contained in the various statutes Congress adopted after the Tripoli declared war, can have the effect of a declaration of war (and a declaration of war may be limited or conditional), and (b) Congressional declaration of war is sufficient to create war, but not necessary; an enemy declaring, or initiating without declaring, war is also sufficient to create war.

See, among other cases, Bas v. Tingy, 4 U.S. 37 (1800); The Prize Cases, 67 U.S. 635 (1862); The Protector, 79 U.S. 700 (1871).

This is misdirection and you know it. By that same token, if we were around at the time, I could also point to the slaves.

The reckless interpretation of the U.S. bill of rights is already precariously close to violating the Geneva Conventions (on many cases, it probably has already been violated. I.E. Guantanamo Bay). The idea that you're somehow exempt from what is commonly regarded as decent and fair treatment of another human being based on a narrow (and arguable) technicality is appalling.

Jefferson would have had each state be its own absolute arbiter of the Constitution, and free to ignore the Constitution if the state felt like doing so.

Ron Paul arguably holds the same views now (with his various attempts to make state actions immune from federal judicial review).

For both of them, history furnishes examples of why -- even if we hold that the Supreme Court and federal judicial review was a bad idea -- this is also a bad idea.

http://en.wikipedia.org/wiki/Tu_quoque

In context, your quote does not make sense. Without judicial review, which Jefferson was criticizing, there would be -nothing- to stop bad laws from being implemented. Abortion would still be illegal, for example.

Marbury v. Madison created a remarkable legal instrument: the Court can strike down a law, but it cannot write a new one (deplorable Costa Rican abortion jurisprudence notwithstanding). It is a check on government power that errs on the side of liberty.

However, relying on the Court to strike down every bad law is like relying on the compiler to catch logic errors. A sufficiently intelligent compiler can perform some remarkable analysis of code, but that is not the function of a compiler. We continue to elect bad Congressmen who pass bad laws signed by a bad President, and then we have the gall to blame the Supreme Court. It's ridiculous.

If you want to make a difference in politics, you have to actually get involved in politics, at the party and primary level, because that is just how shit gets done. It is critical to elect good candidates, not just to throw out bad ones.

Interesting. I guess that's why Guantanamo is on Cuba.

4th amendment: “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.”

I don't understand this notion that you don't really understand something like the 4th amendment without understanding the whole history of case law interpreting said amendment.

The amendment is short and simple. It says what it says. It is part of the supreme law of the land (the constitution) and thus supersedes any lesser laws which may conflict with it. Any interpretation of it is just that.

If I were to put it in software terms, I'd call interpretations “derived artifacts” and the amendment the “source”. If I start getting weird conflicts and unexpected behavior, as any developer knows, I should “make clean” (clear out all derived artifacts) followed by “make” (rebuild from source).

"No, tptacek is right... if you are a foreigner living abroad, the bill of rights does not apply to you:"

This is becoming abundantly obvious from where I sit, outside the US as a non-US citizen.

I wonder just how long it's going to take for non US businesses and governments to realise the consequences of that?

I look forward to the startup opportunities in what are currently considered "major player consolidated verticals" for non US based disruption?

Who's currently planning an ad network or web analytics service or auction site or microblogging service or social network or online retail conglomerate - all marketed to national government and non-US based businesses as "all data stored outside US jurisdiction, all data SSL/TLS with PFS on the wire to minimise consequences of interception", then lobby governments to advice citizens to switch away from "US monitored services" and for corporations to forbid use of "US monitored service" via corporate networks.

It's all but impossible to break into markets dominated by Google/eBay/Amazon/Facebook/Twitter - but what if the Australian government started recommending people use a secure local alternative, and big companies started blocking those services at the firewall?

While I would prefer your stance to be correct, the Supreme Court has held that the Constitution applies only to persons within the USA. For example, Downes v. Bidwell found that "the Constitution does not apply to foreign countries [...]" [1] and that it doesn't apply to US Citizens if they are outside of the US, "[the] Constitution can have no operation in another country." [2]

[1]: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vo...

[2]: https://supreme.justia.com/cases/federal/us/140/453/case.htm...

While what you say was true, this legal precedent was later overturned by Reid v. Covert in 1957:

http://en.wikipedia.org/wiki/Reid_v._Covert

Thank you for providing that link!

Ah, good point. IANAL, can you tell? ;)

It's perfectly alright, what you cited was dated to 1901, but the United States did have a longstanding tradition beyond that (up until 1957) of not upholding constitutional rights for citizens abroad. So, it's very reasonable to think this is still the case due to the abundance of cases which reinforced that precedent.

That's why Reid v. Covert was such a landmark case, it completely overturned the precedent. IANAL either, however :)

Justice Black, who wrote the Reid opinion[1], did so in terms which are very much applicable to the current situation:

    The concept that the Bill of Rights and other constitutional protections against 
    arbitrary government are inoperative when they become inconvenient or when 
    expediency dictates otherwise is a very dangerous doctrine and, if allowed to 
    flourish, would destroy the benefit of a written Constitution and undermine the 
    basis of our Government.

That sentence basically sums up my entire viewpoint on warrantless government dragnets.

[1]: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0354...

What about people in the USA that are not citizens of the USA?

Normal protections apply (except possibly "near" the border, someone else will have to link to the outraged web sites)

If you have the time, I really really recommend listening to the "Civil Liberties and the Bill of Rights" [1] which is available from The Great Courses (and the Sunnyvale library, possibly a library near you as well) It is an excellent introduction into how the systems works (or doesn't work) and how it evolves the interpretation of the Constitution as it applies to citizens and noncitizens alike.

[1] http://www.thegreatcourses.com/tgc/courses/course_detail.asp...

That's what you may have thought it meant, or what you think it should mean, but it's not what it does mean. If you are so sure it's wrong, then it's up to you to make the argument for why, instead of just handwaving it away because you don't like it.

That's a theory that suggests all spying is unconstitutional.

It probably is.

It's probably also against the UN declaration of human rights.

Given that spying drastically shortened the war against Japan and appreciably shortened the war against Nazi Germany (both of which are definitely not on the Christmas list of UN human rights proponents), I'd be careful about how emotionally attached one gets to the issue of spying. Like many other things, it is a tool... it can be used for good or for bad, but in the end it's a tool nonetheless.

"Because <scaremongering amorphous threat>, you should really accept the removal of <fundamental right>"

Hah. Yeah, sure.

Well, how about this one? I would argue that controlling what substances are injected into your own body is pretty fundamental human right.

So why do we allow societies to impose a vaccination regimen on people, by even minor coercion?

Oh, I thought you were going heroin, instead you went antivax.

Figured it was worth a shot. I would actually imagine there's a lot of people who actually are antivax for the reason I mention, but you never know 'til you try, right? ;)

Spying on an enemy government is way different from spying on civilians.

Sure. Just like making a relevant point is way different to supporting the broken end of a dead tangent (NSA/GCHQ/etc. don't just spy on governments, they spy on anyone they feel like, and everyone by default, and this is very much confirmed now)... without presenting any evidence.

Some of the bill of rights is that, and some clearly refers to things protecting "the people". I am no constitutional scholar, but this does seem to indicate that those specific rights are rights that are intended to apply to citizens of the US.

people lawfully present in the US, not just citizens.

My understanding as well; noncitizens on US soil are protected by the Fourth Amendment; outside of actual border crossings, the USG cannot search them without a warrant or probable cause.

AFAIK "outside fo actual border crossings" also extends 100 miles into the US (including the coastlines). This covers the vast majority of people in the US. I've heard stories of people being searched and harassed by police because they happened to have a foreign visitor with them:

http://www.law.cornell.edu/uscode/text/8/1357#a_3

http://www.wired.com/threatlevel/2008/10/aclu-assails-10/

I would love to see evidence that non-citizens on US soil, as a class, are protected by the Fourth Amendment.

It only took ten seconds on google to note that the NSA apparently doesn't agree with you.

http://www.nsa.gov/sigint/faqs.shtml#sigint4

    Federal law and executive order define a U.S. Person as:
        a citizen of the United States;
        an alien lawfully admitted for permanent residence;
        an unincorporated association with a substantial number
              of members who are citizens of the U.S. or are
              aliens lawfully admitted for permanent residence; or
        a corporation that is incorporated in the U.S.

I doubt that "permanent residence" includes H1-b workers, or other work visas, and I very strongly doubt that it includes people on business or pleasure trips.

The NSA's language seems to derive very closely from FISA (the law itself, title 50 chapter 36),

http://uscode.house.gov/download/pls/50C36.txt

..which in 1801 (i) has similar language, though it clarifies that the definition of "lawfully admitted for permanent residence" should be taken from "section 1101(a)(20) of title 8"

According to http://www.law.cornell.edu/uscode/text/8/1101 , here is that section:

(20) The term “lawfully admitted for permanent residence” means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

I don't feel enlightened.

The EFF, in a surprising turn, claims that any legal resident is a US Person... normally I expect the EFF to (a) do their research correctly, and then (b) point out the worst-case scenario. This appears to be neither. https://ssd.eff.org/foreign/fisa

IANAL (though sometimes I play one on HN), TINLA.

If you want to see how it is currently in effect, look no further than Guantanamo Bay. Non-citizens also under the label of terrorists (hint: not human) do not receive right from the US

I can easily see it in a very literal interpretation of the documents though. For example, all of the amendments refer to "the people". "The people's right shall not be infringed..."

Who is "the people"? Well, the Constitution starts out like so:

We the people of the United States

It's morally wrong, but that's the way our gov't plays it.

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