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Wednesday, June 19. 2013
The last few weeks since Edward Snowden released not only the data he had, but also made his name and face public, have been quite interesting. It has caused many heated discussions in my household, as well as between myself and friends. After all, the US is split regarding whether Snowden did something 'wrong' and put our nation at risk. But I don't think anyone properly understands the case. I'll include myself, because I don't think anyone can fully grasp the various threads of law which surround the story. Primarily, though, it's because this involves classified documents and laws regarding these are arcane and biased toward the support of governmental authority rather than Constitutionally derived freedoms. Regardless, there are some essential facts which even the most simple of us can understand and make good judgements based on.
The most common arguments against my stance, which supports Snowden's actions, are these:
I've posted on Maggie's before about privacy, particularly with regard to the data which corporations use in your daily internet browsing. Managing privacy guidelines is part of my job, so I'm very familiar with the topic. One thing is very clear, and you don't have to be a lawyer to know this: the issue isn't privacy.
The issue is ownership of data. All data, on the phone or on the internet is yours and owned by you. As a result, the private companies which have access to this data must protect it for you, which is why the police and government, in general, need subpoenas and warrants to gain access to the data.
To some people, it's a frightening thing to have companies tracking your behaviors. To others, it's a relief because it makes online life 'easier'. However, one thing I've always pointed out is that no matter how much we wish it were so, we have no right to privacy in the Constitution. So when it comes to the NSA, we have to remember it's not at all about privacy. In fact, there are relatively few laws which exist regarding privacy. Most laws which do exist revolve around ownership (such as your identity) and property (intruding on your space or taking your information and misusing it). I want to be clear, because I'm not a lawyer, I'm not saying there are NO laws regarding privacy. I am only saying stict and standard definitions of privacy are difficult to pin down, which is probably why the Founding Fathers avoided the topic altogether. Something you'd like to keep private in your life may not be something I prefer to keep private in mine. As a result, the Constitution focused on items of property, specifically search and seizure of property, and the requirement of probable cause and suspicion of a crime.
So if you have limited privacy, there's no reason to worry if you have nothing to hide. At least that's a common refrain I've heard lately.
There are a few contentious points wrapped up in this belief. First, just because you have nothing to hide today doesn't mean some political entity won't find a reason to want to make you sweat tomorrow (think IRS scandal). Secondly, just because technology has made data easier for the government to obtain, doesn't mean it's legal for the government to get and use it. Nor should anyone simply shrug and say, "well, that was bound to happen, and geez - they are keeping us safe."
If someone opens your mail, that's a felony - a federal offense which carries up to 10 years in prison and $250,000 in fines. So if someone taps into your email, is that a federal offense? No, it's not covered by the same statute because email is not part of the USPS. Email, much like a standard letter, is property. But because the USPS is not involved, there are different rules which govern its management. Stealing someone else's email is still a crime, and is still very serious. But in this simple distinction, you can see how regulations have shifted due to technology. In a simple differentiation like this, email is seemingly less private, when in fact it's not. Even if it is less private, the level of privacy says nothing about ownership of the property itself.
Assume someone breaks into your house and steals $10,000. That's breaking and entering and theft. But what if you leave $10,000 on your front porch in a brown leather bag and when you turn your back it gets taken? It's still theft, but not breaking and entering. Is the thief less at fault for theft if you leave your money on the porch? Absolutely not. Perhaps you shouldn't be leaving $10,000 on your porch, but just because you made that money easier to steal doesn't mean stealing it is any less a crime than breaking into the house and stealing it.
The point of this is that ease of access to email or phone data doesn't make it any less a search and seizure. Mail is an exchange of property between you and the desired recipient, and when the USPS touches it, the Federal Government has an agreement which says they will protect this property. If the Federal Government feels a crime is taking place in conjunction with your mail exchanges, it requires a warrant to search your property and it needs to subpoena your records in order to read that mail. It must invoke probable cause.
But when that same property is no longer handled by the government, and easier access is available, the government still doesn't have the right to access. Many friends have said to me "well, my data's out there and therefore it's no longer mine". Wrong. In fact, it's still yours and every company which has its hands on your data will admit it is yours and they must take special care to manage it in the fashion which they are contractually bound. This is precisely why the police require a subpoena or a warrant to get the documents needed from phone companies, EZ Pass, or even Google when they are looking into a person's complicity in a crime. Yet, for some reason, there are people who are suddenly not concerned that the government has easy access to all this information and is actually combing it regularly without any sort of probable cause (unless, of course, the metadata seems to indicate there may be some probable cause). There's a chicken and egg problem taking place, if you believe what politicians and bureaucrats are saying regarding their ability to protect us using metadata. They need probable cause to search the data, but in searching the data, they can find the probable cause. I'm surprised a Constitutional lawyer like Obama supports the program because even he knows they are supposed to have the probable cause first.
I happen to believe Snowden and his claim the government doesn't even bother with probable cause. I truly believe they are investigating everything regardless of warrant or subpoena. Why not? When you have access to all this data, you can pretty much do whatever you want. Who is watching the search algorithms? Nobody but politicians and bureaucrats with axes to grind.
Speaking of Snowden, I keep hearing about this oath, or NDA, or whatever it is he 'broke' when he released this data. I handle NDAs fairly regularly and while I can't remember taking an official oath for the government, I'm pretty familiar with the concept of keeping your mouth shut on important topics. There are, at times, things which you really just shouldn't talk about, particularly if people's lives are at stake. But keeping quiet doesn't include keeping quiet about a crime. NDAs do not protect people who are complicit to a crime, if I keep my mouth shut about a company committing fraud simply because I signed an NDA, I'm as guilty as they are. In fact, if you see a crime taking place you're supposed to be a whistleblower, which is why there are laws to protect whistleblowers. And clearly, Snowden saw the Constitution being infringed upon. I don't have to know the details of PRISM to know he's absolutely correct. Your data cannot be dumped into a digital warehouse so the government can review it regularly, and keep reviewing it well into the future.
The fact many companies have been required to dump metadata into this digital 'warehouse' is, clearly, an illegal seizure of data. There is no warrant to seize this information, and the companies are complying to keep political waters relatively calm. In addition, combing even just the metadata represents an unwarranted search, since it includes massive amounts of information from non-terrorists. It's easy to see how Snowden, even if you think he is wrong, recognized the issue of Constitutional infringement of citizens' rights. The problem, of course, is that whistleblowers of classified data do not get the same protections that standard whistleblowers do. So Snowden has very few protections, and he wisely realized the deck is stacked against him.
If you entertain the concept that breaking this oath made us less safe, we should consider Benjamin Franklin's oft-quoted commentary. That is:
I would argue that this program has not made us any safer, so Franklin was right. They can roll out as many 'thwarted' terrorist attacks they want, and I'll argue in response "How do you know and how can we be sure all these thwarted attacks are legitimate, and how do you know they couldn't have been thwarted without PRISM?" The Boston Marathon, a terrorist attack tailor made to prove PRISM's worth, was still bombed and lives were lost. Does that mean the program doesn't work, or does it mean the program doesn't go deep enough? Obviously, in either scenario, Snowden is 100% correct and the Constitution will have to be ignored to make it work properly. Then again, if it doesn't work, why are we even doing it?
The best approach to this intrusion on our rights is simple.
Of course, there is this tongue-in-cheek concept:
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The oath puts, and should put, the Constitution first and following orders second. I submit that Snowden has therefore been more faithful to that oath than his superiors, including the Commander in Chief, have been to theirs.
Bulldog: However, one thing I've always pointed out is that no matter how much we wish it were so, we have no right to privacy in the Constitution.
Of course people have a right to privacy. If not, then people have no rights. You can find the right to privacy expressed in the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments to the U.S. Constitution, as well as common law, and has been repeatedly upheld by the courts. Like all rights, though, privacy is not without limitations.
I'm withholding judgment, but I sure am glad you and others are talking about this case. It needs a very full airing, assuming the Feds can find a way to discuss the issues publicly without endangering sources and methods too greatly. If we decide these programs are worth having you'd like to think they are still effective after the debate is over, and if we decide they aren't worth having it won't matter. My prediliction is to say the Feds classify way too damn much and for far too long. I also think that ten years of accellerating public surveillance technology use is too much, just on the surface. Whether we draw the line here, at the PRISM stuff, or go further in rolling things back, is something I have an open mind about.
Get started Congress. Hearings, hearings and more hearings.
You can find it expressed. But it's not stated explicitly - nothing like "the right of privacy shall not be infringed without due process".
The 4th Amendment, for instance; searches and seizures. Privacy is implied. But the Founders weren't concerned about protecting privacy per se outside the context of routine and well established interactions between state power and private individuals.
Why didn't they express the right explicitly? Probably because it never occurred to them to do so. Private society enveloped government, not the other 'way round. They would boggle at the scope of our Government's interest in private matters; much - most? - of it would seem perverse and intolerable.
You can make a good case for the notion that privacy is the animating spirit behind many of the most important protections of the Constitution and the Bill of Rights. That doesn't mean that the right to privacy is "expressed" in the Constitution. It's not. It's expressed in Supreme Court cases, which extend principles the justices find in the Constitution and try to apply them to new circumstances -- sometimes with considerable faithfulness to the text, and sometimes with scarcely any.
The problem is that no one knows what privacy means when you get down to brass tacks. To take perhaps the most famous example, there is little agreement on how much privacy is involved when a woman is carrying another human being inside her body: it's a very private relationship when it comes to the shopkeeper's impertinent curiosity, but it's not very private as between the woman and the baby. Or at least, if it is private, then it can be so only if you conclude that the baby has no privacy rights of its own. You could say the same thing about the relationship between a master and his slave: it's private! Hands off! We fought a war over that.
The Founding Fathers obviously thought carefully about when and how the government should be able to intrude on a citizen. Instead of talking in generalities about privacy, they opted for specific limits on specific kinds of government action that had traditionally caused problems. If we want other kinds of privacy, it would be a good idea to secure them to ourselves by passing new Constitutional amendments rather than continue to wave around a word as to whose meaning we have no practical consensus.
T.K. Tortch: You can find it expressed. But it's not stated explicitly - nothing like "the right of privacy shall not be infringed without due process".
The use of the term "privacy" to refer to freedom from intrusion on the private sphere postdates the drafting of the Constitution. (A "right to privacy" would have been like saying a right to use the privy or a right to keep your privates private.) What you see is that people are to be secure in their homes and papers. We also see it in the common law notion that "a man's home is his castle".
T.K. Tortch: Why didn't they express the right explicitly? Probably because it never occurred to them to do so. Private society enveloped government, not the other 'way round. They would boggle at the scope of our Government's interest in private matters; much - most? - of it would seem perverse and intolerable.
Hardly. The founders were well-aware that governments would break down doors to see what kind of Bible was kept in the home, and imprison and torture without due process. Governments were very interested in what people today would consider private matters.
Actually, as T.K. Tortch pointed out, it's not stated explicitly. I'd go so far as to say it's not even "expressed", but rather implied.
The Supreme Court has laid out 4 guidelines related to privacy which are implied. Even so, these are open to opinion and argument. The strongest support for the implied rights of privacy was 1965's Griswold v Connecticut, in which Justice Douglas referred to certain "natural rights of privacy". To some degree, the 14th Amendment covers certain rights of privacy, but it does not expressly create any general rights.
It's my view the Founding Fathers didn't address privacy because it was both an implied right (back then few people lived on top of each other the way we do now), but also realized the right of privacy is, to a large degree, neatly tied up in property laws and contracts. You don't own my identity, for example, I do. You don't own my data when I post an email or send a letter to my sister. You don't own my phone number or the exchanges I create using that number. And so on.
Do we have a right to privacy? This remains a shadowy concept, and even Justice Douglas discussed that. It's not entirely clear we do, at times, and it is precisely this reason why the government can, and will, press the issue as far as it is possible for it to press the issue...and I would not be surprised at all if, eventually, it attempts to pass legislation which makes investigations which are classified "above the Constitution", and enables the government alone to push privacy of its citizens aside.
We live in an age where people foolishly think the government provides real protection, and real value. I'm not so foolish. Our rights, as Douglas and many other have pointed out, are not given to us by the government, but are derived from nature. The government has NO right to remove or diminish them - but will take every chance to do so in the guise of 'better serving' the population.
Again, both of those are really issues of property and less privacy. Privacy exists as a side notion, an important one, but let's put a different angle on this.
I have a close relative who lives in a very dicey neighborhood (this is a true story). She is far more liberal in her views than I am. She does not truly believe in the concepts of 'ownership' or 'property'. As a result, she neither keeps her doors locked nor worries much about what people see or hear. As she says "I have nothing to hide."
Still, her level of desired privacy is far less than mine. As a result, you can see how and why privacy is not an easy issue to pin down, but property rights are not. Regardless of how SHE feels about ownership, her jewelry is still hers, and if it's stolen that is still theft. She may not choose to press charges, that's her choice. But she may enjoy the company of the person who stole these jewels, and not worry about them continually visiting her at any hour of the day.
A cursory look at the methods employed leave little to the imagination. I don't see any need to keep any of this classified.
There are no lives at stake here, except those of everyday citizens. But that is precisely the argument the government will use to keep this as quiet and secret as possible. "We're doing it because it's in your best interest."
That, of course, is the WORST reason for secrecy in a case like this.
This needs a full public airing, and Snowden deserves to be granted immunity to speak freely about what he knows. Otherwise, they (whoever 'they' are) will find a way to quiet him, if they haven't already.
Bulldog: Still, her level of desired privacy is far less than mine.
Just as it is her choice with whom she shares her tangible property.
Yes, but that's not the point, is it?
Just because you are OK with less privacy, or less property, doesn't mean I am.
As a result, the rules for both have to be designed as stringently as possible to be able to enforce these things. With property, that is very easy. I own something (like my identity) that you do not, there can be a contract of ownership.
With privacy, try and be as stringent as you can, and you still walk into landmines. I am certain the Founding Fathers recognized this. Ben Franklin was fond of sitting around naked in the evenings, but I doubt Jefferson was. Each realized there were variously levels of tolerance for privacy, but property was something that could be defined relatively easily.
Maybe I wasn't clear. The Founders would boggle at the scope of today's[i/] Government's interest in private matters; not the door-busting Bible-grabbing stuff, which as you say they understood very well; but of the finer grained social matters, like say whether or not you decide to buy health insurance [i]ad infinitum.
Today's administrative state is more concerned about the small stuff of life - did you recycle!!? - than a derigiste power like Louis XIV's France.
I doubt the Founders would be surprised that state power would see fit to meddle in private affairs that way, but they might be surprised to learn that their Constitution was so easily cited as the springboard for such power.
On the other hand, maybe not. Practically speaking those guys in funny pants and wigs knew as much as anybody needs to about the hazards of power and human weakness, and the appetite of power for more of it. Power always thinks everything's possible and everything justifies power's desire.
"There are certain times when we should infringe on your freedoms."~Mayor Bloomberg
Mayor Bloomberg, who I used to like and now can't wait to see ushered from his Ivory Tower, knows more about infringing on your rights and privacies than most.
Sugar, Soda, trans-fats, recycling....the list is endless. But he should infringe on our rights and privacies because he knows better, right?
I think that's what Zach, as usual, is trying to say. Intelligent people must know more, and better, than us hoi polloi.
Bulldog: Just because you are OK with less privacy, or less property, doesn't mean I am.
Bulldog: As a result, the rules for both have to be designed as stringently as possible to be able to enforce these things. With property, that is very easy. I own something (like my identity) that you do not, there can be a contract of ownership.
There are thousands of laws, regulations and precedents for the disposition of property; even then, there are myriad disputes over property.
Yes, defining the edges of privacy can be difficult—so is free speech—, but that doesn't mean the Constitution doesn't speak on privacy.
Bulldog: I think that's what Zach, as usual, is trying to say.
Um, no. Our position is that privacy was utmost in the minds of the writers of the Bill of Rights.
Myriad disputes doesn't mean law exists. Yes, property disputes take place, but the law is what the law is, and disputes can usually be decided fairly and justly.
Now, define privacy law in the same fashion as property? You can't. I know you can't and I'm not lawyer. Why can I say that? Because every day I sit with our lawyers and discuss variations on this theme. Privacy law, particularly on the internet, is still being hashed out. For example, is your IP address private information? Many people think it is. But I can get your IP address quite easily and use it to find out who you are, if I was so inclined. So it's certainly not as private as you might hope. As a result, does taking it and using it to search on data about you represent a breach of privacy law? The answer, unfortunately at this point, is 'it depends'. I could go into various other tangents on this to fully develop what my point is, but I think you might understand, and there's no reason to get detailed.
I'll be completely, crystal, clear with you because you really are quite obtuse at times.
1. There is no right to privacy laid out in the Constitution. If you find it, you are welcome to show it to me. The Fourteenth Amendment is not a fully defined right to privacy, though it is used as the foundation for a "right to privacy" in the Due Process Clause. Some claim this is the Constitutional Right. It's not. It can be used, to some degree, for that end. But show me where it is expressly listed in the Constitution? It is mentioned in an opinion, not the Constitution, and the last time I checked opinions are not law. They represent legal precedent, but precedent isn't necessarily enforceable, and often comes with an opinion which is dissenting and also represents precedent.
2. I clearly wrote, in my post, that I wasn't saying there were NO LAWS regarding privacy. I was merely pointing out how rare they are, and how difficult they are to both create and enforce. More importantly, in the case of the NSA (since you seem to think privacy can be infringed upon legally from time to time), if there are privacy laws, then in this particular case they have clearly been broken. Metadata, no matter how you define it, is still the property of anyone engaging the data or the exchange of data. I know, the Patriot Act and other laws have tried to diminish that pesky issue, but just because a law exists doesn't mean it's unconstitutional. I have consistently said, to people who hate George Bush, that at least he took something which was illegal and passed a law to try and make it legal, thus creating the opportunity for discussion. And, to these same people who also LOVE our holy ruler Obama, I point out he has tended to agree with the much hated Bush on this particular topic. A conundrum, no? Perhaps not to you.
3. I also wrote, and clearly described, that most laws regarding privacy revolve around ownership and property - something you have not disputed or disagreed with.
4. I pointed out the reason why privacy laws, at least when it comes to creating these laws, are few and far between is because there is no strict definition of what privacy is. It's very much a "I know it when I see it" kind of thing. This is why most privacy law is tangled up in rulings, opinions, and various other legal items rather than a Constitutional Right which says "You have a right to Privacy".
Douglas himself pointed out privacy exists in the penumbra of the Constitution. It is in the shadow. Clearly important, but not the thing most focused on, but the law can be used to craft a support for privacy.
Oh - and if you choose to have the last word, I suggest you point out where, anywhere on here, the four points I've listed above were not somehow mentioned or alluded to....I'll issue a full and complete retraction.
1. You, nor I, have no idea what was utmost on their minds. Which is why I believe they focused on property rather than an intangible like privacy. Better to limit the powers of government from infringing something that can be well defined than try to set a scope for private citizens which can often be twisted and malformed by the powers that be.
2. If it was utmost on their minds, they would have addressed it clearly and succintly. Yet they did not.
3. You clearly said that there were situations when privacy should be infringed upon. Yet several founding fathers would take issue with that concept, since I pointed out Franklin's point of view. And he probably had one of the more lenient viewpoints regarding the issue of privacy, given his proclivities.
So your statements don't match your proclaimed point of view.
Bulldog: Yes, property disputes take place, but the law is what the law is, and disputes can usually be decided fairly and justly.
Property law is not as clear-cut as you seem to think. There are disputes not just over facts, but over law. For instance, the Supreme Court just had a major ruling on patent law. The reason why there are so many laws is because there are so many wrinkles, and every law brings with it new exceptions and new questions.
Bulldog: But show me where it is expressly listed in the Constitution?
They didn't mention emails either. As we already mentioned, the use of the term "privacy" to refer to freedom from intrusion in the private sphere only originated after the U.S. Constitution was drafted.
Bulldog: There is no right to privacy laid out in the Constitution. If you find it, you are welcome to show it to me.
We already did; the 1st, 3rd, 4th, 5th, 9th, and 14th Amendments to the U.S. Constitution, as well as common law, and has been repeatedly upheld by the courts. Like all rights, though, privacy is not without limitations.
Bulldog: Which is why I believe they focused on property rather than an intangible like privacy.
The 1st, 4th, and 5th amendments are not primarily about property, but are meant to protect the people from government intrusion, especially in the private sphere. For instance, the government can't break your door down to see what kind of bible you have.
Bulldog: You clearly said that there were situations when privacy should be infringed upon.
All liberties have limitations. For instance, freedom of speech does not license yelling fire in a crowded theatre.
Bulldog: You clearly said that there were situations when privacy should be infringed upon.
Your position, if we are reading you correctly, is that privacy, other than the specifics mentioned in the Bill of Rights, is a legislative prerogative. Our position is that there is a fundamental right to privacy, inherent and Constitutional, that cannot be infringed.
Not one thing you wrote here is something I didn't mention or allude to. Anywhere. So if you were hoping for a retraction, I can't comply.
Again, none of the amendments state that a right to privacy exists. Please find it, write it out, and make sure you show where privacy is written down in the Constitution.
As I pointed out in my post, and I was very clear there and in my reply to you - I wasn't saying no privacy laws exist. Did I? Please show me where I said this, because it will help me understand why you disagree with what I wrote. I'm not sure if you're missing something, but you must be if you haven't fathomed this yet.
I'm also aware that the Ninth Amendment makes it clear that just because a right isn't enumerated in the Constitution doesn't mean it doesn't exist. However, that still isn't a right to privacy which is expressly delineated in the Constitution. It just means it could exist as a right, and as you point out (and I did, too) opinions will support this concept. But that doesn't make it a Constitutional right. As I wrote, and as Douglas wrote, it's in the shadows of the Constitution.
By stating that privacy is not in the Constitution doesn't mean I don't believe it doesn't exist. It just means that using privacy as a basis for fighting surveillance won't get you very far. You have to remember that the Founding Fathers were not unanimous in adding the Bill of Rights - the two schools of thought were that the Constitution alone covered all this, while others felt if the rights weren't enumerated, they weren't protected. Both schools of thought have much to support their point of view, which is precisely why the Ninth Amendment was added, to fully protect citizens from infringement by the government.
But despite what you say, not one single word of the Amendments listed says anything about privacy. Only opinions have supported it as a potential right which the Constitution could be used to protect. Yet, again, most of these protections reside around ownership. Do I get privacy in my vehicle or my house? Sure, as long as I'm not using it to hurt anyone. But as soon as I'm suspected of a crime, probable cause comes into play and my privacy can be overruled. But in each case the issue of searching my house or my car is based on ownership.
As for property law, usually it's fairly clear cut, and usually disputes are not about the law itself. I've been involved in too many cases to dispute this with you. You can nit-pick all you want. Regarding the issues I've discussed, it's very clear cut, though politicians are fond of creating a fog whenever they can to increase their power. I think it's wonderful that you love all the laws which have been created to support this absurd point of yours. I happen to believe they are hamstringing our nation's capabilities. I will simply add this:
Cicero: "more laws mean less justice".
I won't disagree there are limitations to all laws. But those limitations are simply where individuals infringe upon others' rights. As you mentioned, you can't yell fire in a crowded theatre. This is an opinion frequently used to describe that concept. But that is only because my right to free speech has thereby infringed upon the right of people in the theatre to remain healthy and safe. If I'm using my individual right to injure others, then it's not an individual right any longer.
I will now ask how your POV applies to the NSA and metadata. I'm assuming, since you've avoided the topic, you're more concerned about getting into details that are tangential rather than a real valuable discussion about the right of the government to pick through my garbage. Because my data, which is part of the metadata, isn't being used in any dangerous fashion by me. Yet it's being viewed to 'help the government keep me safe'. Without a warrant. The NSA is wrong, regardless of whatever limitations you feel exist.
There is a fundamental right to privacy. I never said there wasn't. I simply said it's not enumerated in the Constitution.
As I pointed out in another reply, the Ninth Amendment offers up protections for rights not enumerated. That still doesn't mean privacy exists as a Constitutional right.
Opinions, and some limited legislation,have supported a right to privacy. And again, I did say this, which you seem to keep missing. I'm not sure how clear I have to be in writing this, because you don't seem to understand English at times. I'd like to see where I wrote it was a legislative perogative? Can you find that for me?
I did write that privacy, in this particular instance, is a terrible way to approach the NSA because most privacy law is built upon opinion. As a result, you're left with the concept of fighting the NSA based on "you've infringed on my privacy", when it's possible (though I'd say insanely stupid) to make a case that metadata is not private. The idea being that the NSA can search metadata to find its probable cause is putting the cart before the horse. If I'm reading you're comments properly, you're saying this is one of the infringements which is perfectly acceptable, since rights can be infringed upon (you have not made it clear when and why this is something which is acceptable, though I have when I pointed out that individual rights which infringe on the rights of others are not rights at all). So I have been led to believe you find the NSA's behavior perfectly within the bounds of the Constitution, with regard to privacy.
On the other hand, if you make the case in terms of property, you can make a much stronger case than one purely based on privacy. Metadata, regardless of how private it is, is still my data and your data. Having it searched without a warrant is unconstitutional. It's rather simple, really.
I know the government's lawyers and some sheep among the population will find this hard to accept. The lawyers will use the kind of nit-picky nonsense you've employed to show how it's not my property because 'it's out there already' and the sheep will agree because they want to remain safe and feel the government is a bunch of smiley-faced unicorns living in Happyland.
But I think that's all a bit foolish. I like to remind people that Nazi Germany wasn't Nazi Germany until it became Nazi Germany. It became Nazi Germany when the sheep stopped pushing back and speaking up.
Individuals who shelter under Constitution and it's Bill of Rights have entered into compact with body politic relinguish right to privacy for the benefits which arise from civil community.
likewise, women relinguish right to privately murder their own children, l when they agree to live in the liberty of God' divine law.
But you said it has limitations. So it can be infringed. But you haven't laid out the framework for what limitations exist for privacy.
This is the natural problem with it. Tell me what limitations exist.
Eddie relinquished any right to privacy whatever he thought that was when he took oath to secrecy.
Boy needs to be put in a box till he can learn to read English.
Bulldog: Again, none of the amendments state that a right to privacy exists.
They didn't use the word "privacy", because the word didn't have the same meaning at the time. They expressed it in terms relevant to their own times.
Bulldog: By stating that privacy is not in the Constitution doesn't mean I don't believe it doesn't exist.
Bulldog: Yet, again, most of these protections reside around ownership.
Most of the Bill of Rights has to do with protections of the individual from government power.
Bulldog: As for property law, usually it's fairly clear cut, and usually disputes are not about the law itself.
There are constant disputes about law.
Bulldog: I will now ask how your POV applies to the NSA and metadata. I'm assuming, since you've avoided the topic, you're more concerned about getting into details that are tangential rather than a real valuable discussion about the right of the government to pick through my garbage.
The government is overreaching, and there needs to be more transparency. Court oversight is weak, and accountability is essential.
Bulldog: There is a fundamental right to privacy. I never said there wasn't. I simply said it's not enumerated in the Constitution... I'd like to see where I wrote it was a legislative perogative?
If it's not constitutionally protected, then its a legislative prerogative.
Bulldog: Metadata, regardless of how private it is, is still my data and your data.
No, it belongs to the carriers.
No, it doesn't. They are acting as an agent on your behalf. But the contents are not theirs, they are yours. The only thing which is theirs is the information regarding the process of exchange.
Send an email and its contents belong to Gmail? No. The contents remain yours. The exchange, between you and your wife, remains one which is owned by the two involved. The process of the exchange, the manner of transmission and information surrounding that, is Gmail acting as an agent on your behalf. While that data is 'theirs', it remains an issue of ownership. The government has no right to demand the information.
It's enough to say that you're wrong on some of your points, and I agree partially on others (yes, some of the Constitutional rights are about protection of the individual, but the process of protection is based on ownership. Yes, it protects me from the Government because my place of residence is my property via rent or ownership, and it is not the government's space).
Just because it's not Constitutionally protected does not make it a legislative prerogative. The protections which exist arise from Opinion. That's not strictly a Constitutional protection, which is precisely why arguments about privacy such as the one you and I are having exist. This isn't about arcane bits of law or fundamental understandings which change over time.
The new technologies haven't altered what privacy is, which is exactly why I used the USPS comparison to the email. The privacy issue is unchanged despite easier transmission and easier access. However, your belief of a Constitutional Right, and the point of view of many other in the legal field, is at odds on privacy regardless of the method of transmission.
On one point, we do agree completely. It is overreach. Oversight and transparency are needed. I'd go further and simply say it should be shuttered. Offering the opportunity to overreach, as we have witnessed, will only lead to overreach.
Government and politicians are, by their very nature, entities which will not ask permission and are unlikely to ask for forgiveness.
I'll revise: the government has no right to demand that information UNLESS it has probable cause and has gotten a warrant.
No point in goin' round with the angel, Bulldog.
His we we knows what the founders meant by privacy though he ain't lettin' on what their privates looked like.
p.s. Eddie also relinquished nebuloues claim to privacy when he swore to uphold US Constitution.
Meself remembers when first Leag swore to uphold US Constitution all thought of privacy quickly disappeared.
Dumbass colored folks began yelling demands into what i thought was me privacy.
Like "god damnit why ain't yall on that bus yet" and later "hey girl, why's'it yall don't know how to turn left?"
Hypothetically and in no particular order:
1) If you wanted to damage the intelligence-gathering capabilities of the US, how could you better start than with a Snowden?
2) If you wanted the fastest internet possible 10 or 12 years ago, where did you need to live? (Hint: it was in Md / NoVa or, for the geographically-challenged, near Ft Meade.)
3) Who watches the watchers? They are the ones to blame. Not the NSA.
I don't think Snowden damaged intelligence-gathering at all. So far, the NSA hasn't provided a single instance in which PRISM did what it was supposed to do, and Boston proved that PRISM provides little, if no, real safety. Given that PRISM isn't doing what "they" say it does, there's no damage.
You're absolutely right about that. I used to work for a very large firm in NoVa in the early 2000's, and the speed differentials were very noticeable when I came to NYC.
I agree the issue of watching the watchers is critical. But I do blame the NSA, too. As I have pointed out to many people, those in the NSA took an oath to uphold the Constitution. I'm concerned that too many people are focusing on Snowden's oath or NDA (which he broke), and forgetting that if (and I'd say since) he's right, then thousands of bureaucrats and politicians are technically liable for breaking any oaths they took.
As a result, the complicity of remaining silent in the NSA, regardless of who was watching, was the equivalent of undermining the Constitution.
I'm scratching my head at his aversion to the concept of property as the basis of privacy. In EVERY single case I'm involved with on privacy, the first thing we're asked is "who owns the data?"
If ownership or property were not the central point of this issue, why ask that question?
It's not uncommon for people in my industry to assume, simply because they touch data, or process it, they own the data. But every time issues of privacy are raised, it usually comes down to an easy question - who owns it?
In some cases, it's the people utilizing the service. In other cases, if identities have been stripped and the data aggregated, it's owned by the firms doing the aggregating. If either of these forms of data are shipped through pipes by particular firms, the firms owning the pipes don't own the data, but they own the data surrounding the data (which is not unlike the metadata the NSA says it uses). In this particular case, it's clear the metadata could be understood to be clear of any invasions of privacy simply because so much personal data is stripped. But the property and ownership question remain intact, as I have said all along.
Unfortunately for the NSA, Snowden released enough information for us to know metadata isn't all they look at, nor do they focus on the data which adheres to the rules they supposedly set down to limit intrusions on private property.
It's also worth noting that in many cases in which privacy has been ruled as being protected by the Constitution, dissenting voices exist which argue against it - making this a singly contentious issue.
It's also worth noting that many people believe (as Zach stipulates) the word "privacy" didn't exist as we know it back then. That's also somewhat questionable. It's been said that "security" used to mean privacy. Of course, this would lead us to wonder why "security" was a word crucial to the Second Amendment. If the Fourth Amendment's use of "secure" means privacy, that's a truly odd use of the language, even back in the day.
It's also said that "liberty" was another word for privacy. Again, even a simple review of the language of the time would leave one scratching one's head over that concept. It's often said that the Fifth and Fourteenth Amendment's use of Liberty, and even the Declaration of Independence's use of the word, are meant to be multi-dimensional in such a way as to include privacy. Very hard to believe, of course, because there is no Rosetta Stone to make this clear, nor is there any way to crawl inside Madison or Jefferson's head and determine what they were thinking when those words were written. But among many, this is a matter of faith.
I don't buy it. It may be that the term "privacy" was different then, possibly meaning biological functions and private parts, but there's no clear indication this was at all the case. I'm more inclined to believe the term was not used regularly because the way we view it is so very different from the way they viewed it. There's no doubt the word has evolved, just as so many words have. But if the issue of privacy was critical or essential to the Founders, they'd have enumerated it somehow and in unambiguous terms.
I do agree with Zach that the Constitution is meant to protect us from the government, and that's a critical point upon which the entire post and all my comments are resting. I do agree that, in each case he mentioned, the Amendments can be construed to imply privacy, too. But they do not make it clear, and many Supreme Court Justices agree with this.
Where I would diverge with the Justices who believe it doesn't exist is in the Ninth Amendment, where rights not enumerated can be covered by the Constitution. And I agree with Zach that privacy could be, and opinions both support and oppose this, covered by the Constitution.
But to presume it was central to the Constitution's development, or that ownership and property don't play a role at all, let alone a central role, is to ignore all the obvious points and commentary which bear this out. After all, what good is privacy when everything is publicly owned and operated? The concept is meaningless. If the "public good" is the driving force, privacy has to be subjugated, regulated, and diminished as much as possible. The key to privacy is stipulating the primacy of property rights and contract law. From that, you can derive rights of privacy, as Justice Douglas did.
In the case of the NSA, the issue of privacy will be difficult to utilize to prove the NSA broke the Constitution.
Bulldog: But the contents are not theirs, they are yours.
That's right. You own the data, but they own the metadata.
Bulldog: Just because it's not Constitutionally protected does not make it a legislative prerogative.
Are you saying that Congress can't enact legislation to protect privacy, or even to restrict privacy as you claim there is no constitutional protection?
Bulldog: I'm scratching my head at his aversion to the concept of property as the basis of privacy.
We don't have an aversion, and the concept has some validity in some cases. But it's pretty basic that a private conversation between a couple within the walls of their home is protected under the U.S. Constitution, even if the conversation has no tangible market value.
I think I've read most all the testimony, and I know very little about the scope and extant of what they are doing. Most of what Snowden claimed could be parts of multiple programs, and the NSA is saying that's the case in fact, and each program has an unknown purpose and capability. The truth is none of the FISC rulings allowing this stuff are known. None of the technology is known. None of the product is known, or which agencies are involved or are using it. So, we know essentially nothing.
We need hearings.
They own portions of the metadata. It depends on what portions you're intending to look at. Either way, the metadata suffers from a problem of 'privacy', as I pointed out in another post, and that is precisely why ownership is essentially the key here.
In reality, what the NSA has been looking at is MORE than metadata, which is why I didn't limit my discussion to just the metadata. There are portions of the overall data which remain yours, portions which are yours but are owned by another firm because they are aggregated and the firm acts as an agent on your behalf, and portions which are not yours at all, but are still owned by potentially other companies. At no point is the data the property of the US government, and at every point it requires warrants or subpoenas to gain access.
I'm not saying Congress can't enact legislation to protect privacy at all. But can you tell me one other way, without legislative input, that you can derive a concept of a 'right' without a right being legislated or fully enumerated? Because there is one.
Again, you mention "within the walls of their home". I fail to see how property isn't playing a role here. You seem to think the marketplace has to play a role? If they own the home, or rent it, this is the defining point of why the conversation is private.
Case in point, a private conversation between myself and another co-worker, at lunch, is overheard and they hear me issuing a commentary about another co-worker which violates ethics and guidelines regarding 'protected citizens'. Is my conversation private, or can the company remove me from my job and not face potential legal action from me? It's a private conversation, but there is a critical piece which differentiates this conversation from the one you described.
Regardless of whether these are separate programs, with different capabilities, we know exactly what they are doing. These could be 20 different programs, with 20 different capabilities, but someone or something is, or may be, pulling the data together. This is what caught Snowden's attention.
More importantly, he realized something critical. It is that the data itself is being collected without a warrant or probable cause. There is no justification for this. It is not the NSA's to collect.
I do agree there need to be hearings and increased transparency. But simply saying "I don't know enough to make a judgement" is the path which allows the government to continue to obfuscate, lie, and confuse the citizens. It's better if we're not worried about this, and it's better if we reserve judgement, because in the end, when the government 'proves' they are making us 'safer' (as they've failed to properly prove so far), enough people will shrug and say "I have nothing to hide."
Today. As I point out in the post, tomorrow is a different story, as the IRS scandal indicates.
Ahhh, folks, the real problem is not with the NSA. It's with the secret FISA court, which failed to recognize the right to privacy that the SCOTUS says exists in the penumbras and emanations of the Constitution (in offering its blessing to the murder of unborn babies via abortion) and which repeatedly gave unfettered free rein to every spying scheme devised by the NSA. How in the world can a secret court whose proceedings are hidden from public view be reconciled with democratic principles? It can't. The FISA court should be abolished.
Good discussion, Bulldog.
But in my opinion the ideals of oath's and loyalty are given short shrift in this discussion. NDA's are neither, again, in my opinion.
First, did Snowden attempt and exhaust every option he had to work within the system to keep his concerns an internal matter so as to not violate his oath's and loyalties.
Second, did Snowden, given the presumption that he did try to work within the system and given his purported access, send an email to the President, General Alexander, and various others detailing his concerns.
Third, why all the drama. Couldn't Snowden have written personal letters to all members of Congress, having exhausted all other avenues of redress, while still holding to his oath's
I realize I'm focusing on the man and not the deeds, necessarily, but I'm not sure one can keep the two separate.
I'm suspect of the whole damn thing.
Those are good questions, but you're also forgetting to ask about the politicians and bureaucrats who have broken THEIR oaths already, willingly, knowingly, and therefore care little for what a Snowden might present to them.
My guess is Snowden recognized, justifiably, that he had VERY LITTLE in the way of protection being a whistleblower on a classified project. These people would ruin his life, and the story would die before he'd have a chance to get it out there.
I understand what you're trying to suggest, and it sounds logical, but it also assumes the people in power will be sympathetic to what you have to say. I HIGHLY DOUBT this would be the case.
Snowden realized most of the people he would have the capability of opening up to were already 'in' on the big lie. His only option was to go public in a big way in order to draw attention.
Given today's releases by The Guardian, it's clear Snowden was very smart about what he was doing. My guesses that personal data was being reviewed without warrant or probable cause is correct. And Eric Holder is now clearly one of the people who broke his oath of office.
I'd agree, to an extent. But then this was issued from today's articles, orders signed by Holder:
"Once armed with these general orders, the NSA is empowered to compel telephone and internet companies to turn over to it the communications of any individual identified by the NSA. The Fisa court plays no role in the selection of those individuals, nor does it monitor who is selected by the NSA."
posted the URL for this below in another commentary.
You're essentially saying, now, that we have descended into anarchy. That this discussion of the Constitution and Amendments, to include our entire governmental structure, oath's and loyalties included, are worthless. I won't debate that assumption, but I will lament its loss. And Snowden, and his like, are and will be a part of that. Long live Snowden. I guess.
I don't know that oaths being broken have anything to do with anarchy.
Frankly, to some degree I'm a fan of anarchy. Not the crazy, free-for-all, anything goes anarchy. But anarchy in the sense of no longer having a government tell us what to do, how to do it, how we must think, and individuals having a level of mutual respect? I could deal with that.
I've actually believed that, if you take the concepts laid out in the Bible as being viable (and I do), that God never meant us to have governments. He seems to have been ok with just and true men acting as arbiters of moral code. He only gave Israel a king...well, because they wanted one despite his warnings.
My feeling regarding oaths and loyalties is that they still have a place, but the current power brokers use them as a tool to keep those out of power in their place.
Agree, anarchy would never accept such constructs as oaths, or loyalties other than self.
You are veering off here, I think. No matter the size, any group will always have a leader, perhaps it is the degree of enforcement that bothers you, and myself as well.
As to Biblical constructs, well, Diogenes still wanders, searching for just and true men. His a well worn path.
Yes, this is a totally different discussion. However, not every group has leaders. And sometimes groups self-select 'leaders' to suit particular situations, rather than a single leader for every and all situations.
Example - a trip to Vegas with me and 8 of my best friends. Half the group knew each other, the other half were unfamiliar with the others. Best 5 days ever. Why? Nobody was pushy, nobody was 'leading', nobody telling anyone else what to do.
We all just pretty much did what we wanted and if you heard someone doing something cool, you joined that guy or group. The only 'rule' was that we had breakfast and dinner together. It wasn't hard and fast, but we stuck to it pretty loyally because it allowed us to set schedules and know what the others were doing.
No cellphones then, either. So it was hard to decide "I hate this, I'll join the other group." You had to commit and if it didn't work, well you manned up.
Yes, Diogenes is still searching. But most people are not just because they assume others are not since society encourages it. How often have you heard someone rationalize away bad behavior with "well, he's rich and you're not...so he's doing something right"?
Given that simple statement, the value of honesty and truthfulness has taken a beating in our modern society. Doesn't mean it can't make a comeback, just that it's rare today.
It's late, I suspect for the both of us. Meaning that we could well carry this conversation on to daybreak, I venture. I'm too old for that, the workday looms.
Thank you for your thoughts, and your honesty in expressing same. The Nation needs much more of such.
Bulldog: They own portions of the metadata.
And yet search engines sell metadata every day, without consent of the users. But it goes to show that property law is not cut-and-dry, but subject to all sorts of gray zones—contrary to your previous claim. Even written contracts are subject to interpretation which will vary between various jurisdictions and courts.
Bulldog: I fail to see how property isn't playing a role here.
There is a great deal of U.S. case law on privacy, and includes concepts such as the expectation of privacy, which is not something with a clear analogue in property law.
You seem to have a theory of privacy as an outgrowth of property rights, but don't confuse the analogy with the thing itself. The 1st Amendment is not a property rights amendment. People have freedom of conscience, and their thoughts are not the business of government (absent due process).
Good topic Bulldog. Thank you for lending your valued perspective.
I have treasured friends (teachers, mentors) who are a targeted minority living in Ch *na. It is not possible to describe to an American what it's like, how it's impossible to have a phone or email conversation with out verbal gymnastics and the persistent doubt that you may have said something that will have life altering consequences just in the most ordinary of conversation such as how is one's health or even in this post where I won't get any more specific than what I've just said.
We have crossed the line into Tyranny here. Quietly, complacently and with out much fanfare or protest. I am very concerned about what will come next if we do not change our path.
Clearly you hit a nerve. I look forward to browsing the comments.
As usual, you didn't answer my questions, I suspect because you know you're wrong-ish, and admitting this is difficult for a person like you.
As for "selling meta-data", I know TONS about this, and you're flat out wrong to think there is a gray area in this. There are those who wish there was, and some who take advantage of the fact that people are not paying attention. But there's not a bit of gray area. The consent is there, particularly on Google or Facebook's part. It's annoying that this is, in fact, true, but it is indeed. I won't speak for those companies, because I don't work for them. But I know for mine, we tend to not sell metadata. We do occasionally, but we recognize our role as agents of users, and the importance of keeping data protected. So consent is primary in everything we do.
I will admit there are some less than honest brokers in this same field, because they take advantage of the burgeoning field of digital PRIVACY, where the laws ARE INDEED GRAY. But in terms of ownership, nope, you are all wet.
Since you didn't answer my other questions, it's clear you're not interested in honest open discussion, but only a discussion on your terms.
I'll add these little tidbits for you to chew on.
First, in no way have I said property LIMITS privacy. In fact, if you do indeed have the capability of reading English, I said the original formation of the Constitution was basically designing protections around different forms of property. Even freedom of religion, a personal matter which seems devoid of property issues, is actually related to ownership of one's own mind and belief sets. Nobody else own's your mind, so nobody can tell you what you could, or should, believe.
Secondly, I've pointed out that privacy grows out of property. Sure, it doesn't HAVE to be related to property completely, but in a sense there is always a bit of property related to it. My words are....MY words. Not yours. If I use those words in a private conversation in a public setting, we'd hope they'd remain private and be protected (this, unfortunately is not true all the time, anymore...again that gray area of privacy law).
Finally, in a world in which there is no property, and all goods, services, and activities are public, what value is there to privacy? This is the critical point. Please give me SEVERAL examples of a world without property in which privacy is meaningful. I think the Soviet Union did a pretty good job of showing just how misguided this concept really is.
That privacy ain't mentioned nor writ in US Constitution does not affirm to me that Founders didn't have the word in vocabulary.
Me thinks they valued privacy privately but in US Constitution and Bill of Rights they relinquished privacy to establish community and enumerate God given Rights to sanctity of persons and property.
Snowden relinquished his privacy by both his oaths.
Meself, am no more informed after his treasonous blabber about anything but now his privacy is tangibly within me grip, also.
Boy needs to be put in a box and tried by law he has spurned.
Bulldog: But can you tell me one other way, without legislative input, that you can derive a concept of a 'right' without a right being legislated or fully enumerated?
The right to liberty is inherent. We thought we had already addressed that question.
Bulldog: As for "selling meta-data", I know TONS about this, and you're flat out wrong to think there is a gray area in this.
This website has Sitemeter, which collects stats on the visitors to this website (22% use Firefox) in order to sell its ads and services.
Bulldog: But I know for mine, we tend to not sell metadata. We do occasionally, but we recognize our role as agents of users, and the importance of keeping data protected.
So sometimes you do sell metadata.
Bulldog: First, in no way have I said property LIMITS privacy. In fact, if you do indeed have the capability of reading English, I said the original formation of the Constitution was basically designing protections around different forms of property.
The Bill of Rights is not primarily about property.
Bulldog: Even freedom of religion, a personal matter which seems devoid of property issues, is actually related to ownership of one's own mind and belief sets. Nobody else own's your mind, so nobody can tell you what you could, or should, believe.
It's analogous to property, but not the same, as even a cursory look at case law would reveal.
Bulldog: Please give me SEVERAL examples of a world without property in which privacy is meaningful.
That's a different question. We would agree that the right to property is essential to freedom.
You still didn't answer the questions. Again, you're shifting this discussion. It's typical of your behavior.
I never said the Bill of Rights was solely about property. YOU said I wrote this, or you feel I implied it. I did not.
You admit that property is essential to freedom. Therefore, property is interlinked and essential to privacy. Hence, it is NOT a different question. That's what you wish it would be.
Since I don't run this website, I will not tell you why they use Sitemeter. I'm merely a contributor. You can write to BD about that. We don't sell any goods or services related to Sitemeter on Maggie's, as far as I'm aware. Not that I'd have a problem with it, assuming the data itself is carefully reviewed and purchasers adhere to any pre-ordained policies related to the use of data and its ownership.
You say "sometimes you sell metadata" as if I do it here on this site, or as if it's opposed to anything I have written here. If you read my commentary, you'll understand more completely that there are ownership rights inherent in the metadata which we (not on Maggie's, in my day job) are careful with. We have a data policy, we do not sell the data regularly, and we vet the purchasers, and have them agree to our data policy so we can avoid any issues related to the ownership of that data. As I have pointed out, the PRIVACY of the metadata is a gray area, because the data which is sought can be considered 'private' or possibly not. It's very much an "it depends" answer. We tend to treat privacy VERY strictly, and if there is a piece of data which is in that gray area, we treat it as if it should be accorded the strictest definitions of private data.
With the issue of ownership, it's always evident who owns which portions, which is exactly why we have very clear rules on this when we sell it.
In any case, my point is about the US Government's access to the data. All the data it has acquired, it has done so via coercion and force and without warrant.
Bulldog: I never said the Bill of Rights was solely about property.
No, you said "the Constitution was basically designing protections around different forms of property." You had suggested that privacy could be analyzed as a property right. We pointed out that there are aspects of privacy not entailed in property law. We also pointed out the uncontroversial fact that property law is not always clear cut.
Bulldog: You admit that property is essential to freedom.
If, by "admit", you mean wholeheartedly endorse, then yes.
Bulldog: Therefore, property is interlinked and essential to privacy.
Yes, they are interlinked.
Bulldog: Hence, it is NOT a different question. That's what you wish it would be.
While the right to property is necessary, it is not sufficient. There are additional rights associated with privacy beyond those of property.
Bulldog: I will not tell you why they use Sitemeter.
We're not concerned about Sitemeter. As we said, we don't own the metadata. You had suggested otherwise.
Privacy can be analyzed as a property right. I never suggested there weren't other aspects of privacy. YOU suggested that I was saying that. I never disagreed with that premise, but you kept writing that my words implied the Constitution was ONLY about property when I never wrote any such thing. Your focus is on something very different than what I am discussing.
Did the Constitution design protections around different forms of property? Yes. Did it do much more than that, too? Yes. Was it about a much larger idea regarding Rights and Liberty generally? Yes. But without property rights any of that is utterly without meaning.
Within the current construct of the law, it's clear that the government is using the problems inherent in privacy law to its advantage with the Snowden case. Obama himself said the NSA program did not violate privacy laws. I'm inclined to believe him on this point. But it doesn't mean that laws regarding ownership of the data were not violated, or even that the Constitution itself wasn't violated without the necessary warrants to search the data, let alone seize it.
You may think that's a privacy issue, but it's not and in this case it's clear the government doesn't give a damn about privacy regardless of what YOU think the Constitution says or means on that topic. Or maybe the government does care and is just willingly ignoring all privacy laws. But given the nature of the data being reviewed, I find that hard to believe. It's possible to review data like this without violating privacy but it's impossible to do it without a warrant.
Which is precisely why ownership of the data is a stronger point of pursuit. It's already been reported that individual calls and emails were confiscated and searched as part of the program, but in such a way that 'privacy was not violated'. I'm willing to believe that (though recent reports indicate this was unlikely). My office havs plenty of data which we see daily that doesn't violate privacy, but if we sold it would violate ownership rights. As a result, we know what's off limits. Any of the data which would violate privacy laws also have very clear ownership rights associated with them, too.
Without property, privacy is meaningless. You have 'wholeheartedly endorsed' this concept. That's been my primary point all along. You have brought up tangents which are not crucial in this case - but which the government does seem to want to keep people focused on. I'm guessing you're willing to go along with them on that.
Any additional rights associated with privacy may have meaning to you, or in the law generally, but aren't essential to the point I've been making.