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People are upset because of this new standard of "grab everything, put it in a 'secure' location and mine it in the future for past crimes."

The main concern is that something you did today may become a crime tomorrow, so now entire populations are apparently in the situation of Schrodinger's cat: we are both criminals and not criminals, and only the indistinct future will determine where we end up.

If you want a society where an individual is free to pursue their interests as long as they don't hurt anyone, it makes a lot of sense to have a transparent set of rules that are applied equitably to every citizen, regardless of their demographics or background.

If you want a society where the individual is completely at the whims of mysterious and unknown forces that can destroy their life utterly for no apparent reason at all, well then carve out special exceptions for some while reserving harsh punishments for others. Introduce secret courts, evidence and trials... Institute a "permanent record" of someone's behavior that can be used to manipulate them as desired. Break the well-thought out control systems that help avoid abuses all to make "LEO easier."

I'm assuming every experience you've ever had with law enforcement is positive?

>The main concern is that something you did today may become a crime tomorrow

Ex post facto laws are unconstitutional in the US.

A lot of unconstitutional practices are law in the US

http://www.scn.org/ccapa/pa-vs-const.html

That page is about 95% bullshit. For example: the establishment clause prohibits the government from establishing an official religion or preventing the free exercise of religion. It doesn't prevent the government from simply monitoring religious and political groups that may be associated with illegal activity. That argument is ridiculous on its face: if the 1st amendment guarantees freedom of assembly, and gangs are assemblies of people, and monitoring is the same as restricting the freedom, does that mean the government can't monitor gangs? We know that's not what the 1st amendment means for the simple reason that the U.S.G. has performed internal counter-insurgency from the very beginning, and those practices were overseen by many of the same people that drafted the Constitution.

There are not a "lot of unconstitutional practices" that are law in the U.S. There are a lot of people who read the words in the Bill of Rights extremely broadly and without historical or legal context, and then put up poorly-designed web pages about all the "unconstitutional" things they have discovered.

I don't disagree with your overall point, but "We know that's not what the 1st amendment means for the simple reason that the U.S.G. has performed internal counter-insurgency from the very beginning, and those practices were overseen by many of the same people that drafted the Constitution" is not strong evidence. The Alien and Sedition Acts[0] were passed in 1798 and were signed by (Federalist) John Adams. The next (Democratic-Republican) president, Thomas Jefferson, opposed them enough to pardon people who had been convicted under them, but then proceeded to prosecute several of his critics under the Acts before they expired. So yeah, a surprisingly bad beginning for free speech in the US.

[0] http://en.wikipedia.org/wiki/Alien_and_Sedition_Acts

> Ex post facto laws are unconstitutional in the US.

The Fourth Amendment protects US citizens from unreasonable search and seizure. Clearly that is being violated as the recent ruling on NSA data collection has pointed out.

The NSA data collecting as of right now is in fact not illegal. There are still debates if it should be or not, but as of right now, it is not.

Not according to a US District Judge who granted a preliminary injunction against the phone spying. Please don't parrot the politicians who claim legality. The fourth amendment is clear enough to prohibit this government conduct.

One says yes, one says no, so therefore it is still up in the air. Until there is a definitive ruling on the matter you can't claim it is illegal...it is still a gray area until something like the Supreme Court definitively rules one way or another.

while a gray area it is still legal. It's only illegal when the courts say it is, so de-facto it's legal. That's a pretty basic property of the US democratic system.

You're confusing "innocent until proven guilty" with a constitutional law question. There is no "presumption" that the executive branch is operating lawfully.

Different courts have reached different conclusions on this matter. It will probably end up in the Supreme Court at one point. Until then, various three letter agencies will treat it as if it is legal and act as if they are immune from consequences of abuse (which they are, presently).

> and act as if they are immune from consequences of abuse (which they are, presently).

As are you and I. You can't be retroactively convicted of a crime if it was not against the law at the time.

There is more subtlety in this case. The NSA has interpreted the law in a specific way which justifies their activities. If the Supreme Court later determines that interpretation is invalid, they most definitely can be convicted of a crime. If the Supreme Court instead determines that their interpretation of the law was valid, but that the law itself was unconstitutional, then ex post facto protection would apply.

>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

>No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

>Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

Not sure what this is trying to prove, but it has been ruled long ago that metadata (the phonecall records your carrier generates on your behalf while you voluntarily use their service), which the NSA is collecting have never belonged to you and are legally available to be collected by a 3rd party.

That ruling applied to a very different situation than anything under discussion here. For one thing, the metadata was collected for only one subject, not 250 million at once.

The misinterpreted quotes from the Constitution above are trying to state that metadata that ATT generates about your call history somehow belongs to you and is not available to be collected by a 3rd party. This is incorrect.

> The Fourth Amendment protects US citizens from unreasonable search and seizure. Clearly that is being violated as the recent ruling on NSA data collection has pointed out.

In other words, clearly, The Fourth Amendment does NOT protect anyone from NSA's violations.

> unconstitutional in the US

So is warrant-less wiretapping, but that didn't stop NSA.

The point is that FBI cases go to court. You're not going to be prosecuted in a US court for something that was legal when you did it and illegal when it was found out.

My point once you start tolerating unconstitutional laws you undermine the whole purpose of the constitution. It must be the supreme law, or it's just another easily bypassed piece of legislation.

The thing is the enforcement mechanism against unreasonable search is the state loses at court. If the state never brings a case they have more freedom. This is also the reason why the police need not advise you of your rights before interrogating you if they don't plan to charge you. If the feds bring unrelated cases based on these seizures I'm sure the admissibility of the evidence will be the main thing being argued in court.

It's just as likely that the questionably sourced information will be used to guide a parallel construction case.

Great, so you've read a blog and you learned a word. Good for you. There's still no civil opportunity to challenge government behavior in a vacuum. Article III Section 2 requires a "case or controversy."

You're trying to have it both ways. Maybe we shouldn't worry about parallel construction because it's harmless and would never send any of us to prison, and maybe we shouldn't worry about it because there's nothing we can do to stop a determined governmental bad actor, but you can't claim both, clearly contradictory, propositions in the same thread.

So is torture. And we've got laws against laundering money for criminal enterprises.

If anything, the last 15 years has shown me that 'anything' is possible.

So is hauling Bradley Manning to a cell without due process and torturing him for years?

Whether you personally agree with the ethics of it, a person gives up several of their constitutional rights when they join the military.

A person has no constitutional rights, he has natural ones. In other words, a piece of paper does not grant anyone any rights, not even the right to extort people (ie. to tax them).

Call them whatever kind of rights you want, but when Manning and everyone else (myself included) signed up for the Army, we waived them.

What kind of things you can voluntarily, bindingly agree to is another matter. I just wanted to point out that the constitution has nothing to do with our rights as human beings, and can't remove or grant any. It's wrong to think about rights as something the government gives you - actually the government only violates them.

A total absence of government would be just as destructive to your natural rights as a government with too much power over its citizens. The government didn't grant you the rights, but in some situations its very capable of preserving them.

There are two main problems with the United States, the first is that too many of us are ready and willing to trade personal freedom for economic and physical safety. The second is that we allowed money to control politics.

This is completely untrue and speaks to a complete misunderstanding of what rights are to begin with.

People don't actually have natural rights, if you're using the common definition of "natural".

The only thing that's natural are the laws of nature, otherwise known as physics, and there is no law of physics that prevents me from torturing someone.

> The only thing that's natural are the laws of nature, otherwise known as physics, and there is no law of physics that prevents me from torturing someone.

Good thing I didn't imagine the idea of rights would physically prevent you from torturing someone. Basically, rights are an idea meant to help us in drawing boundaries between what's acceptable behaviour and what's not. But it's got nothing to do with the government, and everything to do with reason, logic, consistency and common sense. A government or a piece of paper can't grant any rights or take any away, and in fact, governments only violate our rights.

We live in such comfortable times indeed, when a person can actually believe that, absent government, he would have any rights at all.

We all grow up getting brainwashed to fear freedom, and that right there, is the fear talking.

You have no idea what you're talking about.

Oh I do. You have no idea that your stance on this matter is rooted in brainwashing.

I wasn't aware of any Constitutional rights that I as a US citizen should feel like I should actually have. I just know that I can't complain about it or upset the people in power, or else I'll be killed, put in without cause or trial jail, or have my property confiscated.

What about the behavior of the NSA and their guardians in Congress and the courts makes you think they give a flying fuck?

I understand people who have an issue with the "grab everything" mentality. But, from a technology point of view, how else do you do it?

Imagine your the FBI IT guy. How long do you think it would take YOU to walk into an unknown datacenter, locate the specific computer / IP address referenced in the warrant, connect to that computer and copy just the minimum amount of data necessary to prosecute said bad guy (just his e-mail .mbox file? or is this a windows shop..grab the pst? What about backups? What about his contact list? All this just for e-mail!)

Often times he probably doesn't even know the specifics of the case. Maybe just let the local DataCenter guy copy the data off for you right? Well hopefully hes honest and not involved in the crime.

The fact of the matter is, it is 100x easier to walk in, grab the servers of interest and walk out. If the FBI IT guy is smart and prepared he just brings tools to remove the hard drives from the server, copy them and put them back. BUT, if theres child porn, contraband, etc. the FBI is NOT giving that computer back any time soon. Doesn't matter who owns it.

So because of an overly-broad warrant, or lack of training, or vague suspicions or even the mere chance that your data happened to be stored on the same box as Criminal A, we should just allow the FBI to violate the Constitution?

Reductio ad absurdum with your argument and we should just let the FBI run all internet infrastructure, because it is expedient for the FBI, it makes life easier on the FBI, and they can inspect your data to their heart's content. It is a much preferable situation to the one where an FBI agent has to do something complicated.

Nowhere do I see you advocating for the innocent whose rights are infringed upon.

The Constitution specifically states "unreasonable search and seizures". I did not say it should be easy for the FBI to collect. I specifically was referring to "reasonable". Again, if you were tasked with collecting this data, how do you do it reasonably? Sometimes the most reasonable thing is to simply copy the hard drives the data is living on.

The reasonable here does not mean what's techincally easiest or reasonable for the government, but what a reasonable violation of the suspects' or innocent people's privacy is, in light of the suspected crimes.

Grabbing the servers is easy, but arguably because so much unrelated data could be on a shared server these days, it's unreasonable to just grab everything. Many other people are affected, and unrelated data is collected and evaluated later for purposes unrelated to the original collection purpose. This circumvents a reasonable expectation of privacy, and strongly shifts the balance of power from the regular citizens to the agency hording the data. Especially in light of the plea-bargaining justice system in the USA, where the data can be and is used to threaten and coerce, this is worrying.

EDIT: missing word

Right, technical details aren't the real issue. Ultimately, the govt has to earn back the trust it has destroyed, or face rebellion. That's how trust works.

> The main concern

What you have said above is correct, however it is not the "main" concern. There are numerous concerns. That is one key one. Since I have not seen others post other key concerns, I will also contribute an additional concern:

Sensitive data left lying around are/is very tempting to use for illegal economic and blackmail gains. The FBI in particular has a pattern of getting indicted for re-selling sensitive data, even before massive amounts of "seize now, convict later" was taking place.

> The FBI in particular has a pattern of getting indicted for re-selling sensitive data

Source?

NYPFCB.

?

it makes a lot of sense to have a transparent set of rules that are applied equitably to every citizen, regardless of their demographics or background.

It sounds like your response is based on broad ideological convictions that have little to do with the commenter's argument. He or she is arguing that the NSA is not equivalent to the FBI because the FBI, in this case, did follow established procedures to obtain a conviction.

If you want a society where the individual is completely at the whims of mysterious and unknown forces that can destroy their life utterly for no apparent reason at all, well then carve out special exceptions for some while reserving harsh punishments for others.

In order for this comment to be relevant, you'll have to establish how it relates to the details of this case.

Has that ever actually happened? Person did X, X later became illegal, and Person was prosecuted for doing X because of a digital footprint left behind while doing X?

If they are using it with warrants only then I agree there is nothing wrong as long as they can't keep the data permanently. There needs to be a reasonable point at which the data is destroyed. My other expectation is that the data is not available through a network and is in an evidence room that requires two people to access.

My primary concern is the now known strategy of parallel construction. The FBI could be trolling the emails for crimes then using that illegal evidence to find ways to get a warrant to allow the previously illegal evidence into the case.

If this was Fed Ex distribution center that had been seized it would have been treated very differently. They would collected the mail pertinent to the case and rest would have gone away. If they were to confiscate the whole building holding all of the mail for a later time in case they needed it there would be a huge back lash. But because it was email and we haven't set ground rules most people don't bat an eye, even if it's their mail that's been taken.

As a parent it's really difficult not to be supportive anywhere child porn is involved. It's an issue that is so emotional for me that my first instinct is that I would give up everyone's privacy in the hopes of putting a dent in the abuse of children. Even if it only saved one child, emotionally, it would be worth it to me. Logically I realize that once these systems are in place there is no stopping them, and they will be used for everyone else's emotional/political hot button. I only bring this up because having the reaction I do allows me to understand what other people are feeling when the issue is around terrorists/hackers/fraud/whatever.

The govt does scan copy massive amounts of paper mail, also.

My understanding is that they collect scan copies of massive amounts of mail meta-data. Specifically the stuff on the envelope, but not the contents within. The contents within are highly protected and would require a warrant. The problem with e-mail is that it's really difficult to analyze the metadata without also capturing the e-mail content.

The issue I have with this is that there's no such thing as "by the book" Federal investigations anymore. Snowden showed us that US intelligence agencies are using illicit, warrantless means of obtaining information and then providing that information to law enforcement agencies. Those agencies then go to judges and request warrants, and they can prove that the warrant is justified because they already have the damning evidence that they're legally supposed to require the warrant to get. Which renders them meaningless on a federal level.

How do we know that this is what has really happened? On the surface this seems to be possibly a case of parallel construction, in which FBI found the emails on TorMail first and then asked for a warrant for the GMail mailbox to get enough evidence to get a warrant for the TorMail one. Is there a reason why this is impossible or improbable?

I was ready to be super upset when I started reading, especially about indicting someone on an unrelated case from the data - but then I read that they got a warrant and did everything the right way and I was completely surprised that we have competent law enforcement that does things the right way.

That shouldn't have been a surprise, that should have been expected.

> I was completely surprised that we have competent law enforcement that does things the right way

Probably because the stories that make sites like HN are all the 'outrage stories' where things have gone off the rails.

How is getting a warrant which includes all users of an email service, AND those who corresponded with them "limited"?

They didn't get a warrant for all the users whose data they seized.

You don't have to be upset to think that this is interesting! Indeed, it's a very different face of "data changes law enforcement" than the NSA story. Whereas NSA has a specific mandate, FBI can use anything seized for a broad variety of uses. This may always have been true, but the scope of the seizures has increased now that they can include entire server copies, which host many different services. It's a dramatic increase in prosecutorial power (which may or may not be a good thing, I'm not making a case either way).

It's also not clear to me (maybe it is to others) where the limit on seizures is. In the extreme case, AWS is used for all kinds of criminal activities. Can FBI seize copies of AWS, and then with warrant go back and get evidence for other investigations? I doubt they would try, but somewhere between this extreme and the child porn server extreme is some sort of inflection point, both practically and legally.

Step 1: Plant illegal material on a shared server that also contains a site the FBI wants access to but doesn't have a warrant for.

Step 2: Seize entire server.

The FBI is not the NSA. FBI cases have to hold up in the light of open court.

https://en.wikipedia.org/wiki/COINTELPRO

Not necessarily.