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Comment by rgbrenner | Hacker News Reader

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...

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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.

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...

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."

"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?

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).

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

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