[HN Gopher] Supreme Court declines to hear Wikimedia's challenge...
___________________________________________________________________
Supreme Court declines to hear Wikimedia's challenge to NSA mass
surveillance
Author : Amorymeltzer
Score : 209 points
Date : 2023-02-21 18:15 UTC (4 hours ago)
(HTM) web link (diff.wikimedia.org)
(TXT) w3m dump (diff.wikimedia.org)
| [deleted]
| kevwil wrote:
| <sarcasm> The government refuses to hear arguments against
| government surveillance of its subjects. Shocking. Next we'll be
| surprised that Congress won't vote for term limits. </sarcasm>
| tptacek wrote:
| If people want congressional term limits, they'll vote in
| representatives that promise to enact them. People don't want
| those term limits. They want to pick who they elect to congress
| for their districts, and they don't care what you think, and
| the Constitution was written to favor them, not you.
|
| I'd prefer term limits too, but I don't think I can high-horse
| it.
|
| Given the prevailing sentiment on HN, we should all be glad
| there's never been a national referendum on NSA surveillance.
| From local politics experience: people are generally pretty
| sanguine about surveillance!
| kryogen1c wrote:
| > I'd prefer term limits too
|
| Fwiw, I used to think this until someone pointed me to a
| study about how short term limits increase reliance on
| outside sources like lobbyists. I don't remember the study so
| I can't link it, but it seems intuitively obvious. Can't
| become a subject matter expert in 4 years, and for
| sufficiently complicated jobs you're barely competent by
| then.
| dctoedt wrote:
| My wife has long said, "we _have_ term limits -- they 're
| called elections."
| fit2rule wrote:
| [dead]
| judge2020 wrote:
| It's not obvious what Wikimedia is against regarding 702; they
| say:
|
| > Upstream surveillance is conducted under Section 702 of the
| Foreign Intelligence Surveillance Act (FISA), which permits the
| government to intercept Americans' international communications
| without a warrant, so long as it is targeting individuals located
| outside the U.S. for foreign intelligence purposes. Section 702
| will expire later this year unless it is reauthorized by
| Congress.
|
| > In the course of this surveillance, both U.S. residents and
| individuals located outside the U.S. are impacted.
|
| So is this "they should not target foreign individuals outside
| the US that are conversing with US individuals[0]", or is this
| "they should not surveil foreign individuals at all"?
|
| 0: (regardless of whether the US individual is outside or inside
| the US)
| deelowe wrote:
| Residents of the US are getting caught up in the dragnet, which
| is not the intent of FISA. And, it's not limited to
| citizen/non-citizen interactions.
|
| Spying on non-US citizens is legal, by spying on citizens
| should require a warrant.
| tptacek wrote:
| It should ideally require a warrant, but note that all sorts
| of surveillance doesn't. There's a misconception that the 4th
| Amendment requires warrants for all searches. It does not: it
| requires reasonableness (which is code for "a judge agrees
| with it"). The warrant clause of the 4th Amendment is a
| response to British law at the time of the founders, and the
| "general warrant", which was a government grant to law
| enforcement to randomly ransack people's houses and personal
| effects, used primarily as a tool of harassment rather than
| investigation.
|
| This is clearer when you read the original proposed language
| of (what was then, I think?) the "sixth amendment":
|
| _The rights of the people to be secure in their persons,
| their houses, their papers, and their other property, from
| all unreasonable searches and seizures, shall not be violated
| by warrants issued without probable cause, supported by oath
| or affirmation, or not particularly describing the places to
| be searched, or the persons or things to be seized._
|
| An obvious counterexample to the notion that all searches are
| constitutionally required to be authorized by specific
| warrants: searches incident to arrest, which have never been
| so encumbered. Another example: customs searches. Sometimes
| you can just roll the tape back how things were done at the
| time of the founders and see that the supposed prohibitions
| in the Constitution couldn't really be the intent.
| Clubber wrote:
| >There's a misconception that the 4th Amendment requires
| warrants for all searches. It does not: it requires
| reasonableness (which is code for "a judge agrees with
| it").
|
| Isn't the documentation of "a judge agrees with it," just a
| warrant signed by a judge?
|
| The exceptions that I can think of are:
| Probable cause of a crime and this only applies to
| person/vehicle in public. It's publicly visible
|
| I believe domiciles have the highest standard of searching,
| meaning it requires a warrant every time.
| tptacek wrote:
| A warrant signed by a magistrate is one of several ways
| that courts assent to searches. Again, at the time of the
| founders, a warrant was a tool of harassment, not a
| privacy protection. Domiciles are also subject to search
| incident to arrest, which do not require warrants.
| mushbino wrote:
| Securing a warrant for domestic surveillance is incredibly
| trivial.
|
| "Before the terrorist attacks on September 11, 2001, the NSA
| went to the FISA court for warrants to eavesdrop on American
| citizens within the United States. Since the FISA court began
| meeting in 1979, it has approved almost 20,000 government
| requests for these electronic eavesdropping warrants and has
| rejected about five. The NSA does not need a warrant to
| eavesdrop on communications outside the country."
|
| https://www.crf-usa.org/bill-of-rights-in-
| action/bria-22-3-c....
| tptacek wrote:
| It would be more worrisome if the DOJ or NSA was routinely
| losing warrant applications in court; it would imply that
| they were taking flyers, rather than carefully documenting
| their targets and the rationale for surveillance. I'm not
| arguing that FISA warrants aren't abused, or that NSA
| couldn't get a warrant for a ham sandwich; I'm only saying
| that we probably can't learn much from their win count in
| court, since it's directionally what we'd hope it would be
| (I don't know if 20,000 is a lot or a little, and certainly
| we could debate that number).
| phpisthebest wrote:
| it is fascinating to watch the carves out and weird
| exceptions the Supreme court has granted over the centuries
| going against completely the original intent of the
| constitution
|
| Citizenship being a factor on if the government can spy on
| you or not is one of them. The constitution should apply to
| government actions all government actions, not just those
| take inside the confines of the geographic regions known as
| the US, and not just those taken against US Citizens. The
| reading of "the people" to mean it only applies to Citizens
| is very novel IMO...
| jonny_eh wrote:
| Relevant: https://harvardlawreview.org/wp-
| content/uploads/pdfs/vol126_...
| mc32 wrote:
| Wouldn't that mean the US would be at a disadvantage if
| other countries could spy on is big we could not spy on
| them (physically or electronically)? If least this gives US
| citizens some rights with regard to domestic spying.
| FpUser wrote:
| They do it too sort of argument. They do a lot of things.
| Like stoning women for adultery.
| phpisthebest wrote:
| Maybe... but that is why we have an amendment process...
|
| Sadly for the last ~100 years we have taken the easier
| path of just ignoring it when the constitution gets in
| the way
| [deleted]
| xxpor wrote:
| edit: the HLR article covers this exact question much
| better than what I've posted here.
|
| the concept of international telecommunication is novel
| from the perspective of the constitution, but anyway...
|
| The 4th amendment starts:
|
| >The right of the people
|
| The preamble starts:
|
| >We the People of the United States
|
| The 17th amendment says:
|
| >The Senate of the United States shall be composed of two
| Senators from each State, elected by the people thereof,
| for six years; and each Senator shall have one vote
|
| It's pretty clear "the people" refers to citizens.
| bawolff wrote:
| What's so novel about international telecommunication?
| They had international mail back then. Is it really all
| that different?
| nerdponx wrote:
| Also, international telecommunication itself literally
| predates the US Civil War. The USA has existed for longer
| _with_ international telecommunication than without!
| amanaplanacanal wrote:
| I don't see the word citizens mentioned anywhere.
|
| As a parallel point, there were no immigration laws at
| all until a hundred years after the constitution was
| ratified. Anyone could come to the US.
| bmelton wrote:
| The 1790 Naturalization Act came just a few years after
| ratification, and under the purview of its first
| president. The Alien and Sedition Acts were passed in
| 1798.
|
| You're probably referring to the Immigration Act of 1882,
| which was indeed one of earlier laws giving federal
| purview to the ports, and with some enforcement
| provisions, but your statement as written is incomplete.
| amanaplanacanal wrote:
| Oh, good pint!
| ceejayoz wrote:
| > > The Senate of the United States shall be composed of
| two Senators from each State, elected by the people
| thereof, for six years; and each Senator shall have one
| vote
|
| > It's pretty clear "the people" refers to citizens.
|
| No, this doesn't support that assertion. The Constitution
| doesn't forbid non-citizens from voting; fairly recent
| legislation does, and even there, only Federally.
| https://en.wikipedia.org/wiki/Non-
| citizen_suffrage_in_the_Un...
|
| "Since 1997, the Illegal Immigration Reform and Immigrant
| Responsibility Act of 1996 has prohibited non-citizens
| from voting in federal elections, with the threat of
| fines, imprisonment, inadmissibility and deportation...
| At one point or another before 1926 40 states had non-
| citizens voting in elections."
|
| The Constitution _very specifically_ uses "citizen" in
| some spots, and "person" in others.
| phpisthebest wrote:
| >the concept of international telecommunication is novel
| from the perspective of the constitution
|
| But not of International Communication.
|
| >>It's pretty clear "the people" refers to citizens.
|
| If that is in fact the case, then why are all these
| rights the extended to all persons inside the Geographic
| US, Non-citizens are in fact all the time granted many /
| all the rights guaranteed by the US Constitution simply
| because of their presence inside the border of the US.
|
| Seems to be a conflict there, if by your account rights
| are only protected from government infringement if you
| are a US Citizen then we have loads of case law that runs
| afoul of that position
| macinjosh wrote:
| Generally speaking rights are extended to all inside the
| border of the US because it is impossible to immediately
| tell who is and is not a citizen. There is no federal
| citizenship ID or database. So the government finds it
| easier to simply assume anyone inside the US is a citizen
| to avoid constitutional/legal issues. Outside of the US
| the chances of running into problems with a dragnet is
| much lower so they just do it.
| nyolfen wrote:
| totally absurd. the constitution is a legal framework, not
| religious precepts. those outside the US have no duties to
| the US government when not in its jurisdiction and vice
| versa. of course the federal govt has been pushing against
| this itself, eg assange. you do not want to live in a world
| with a universal state.
| Joeri wrote:
| I would very much prefer to live in a world with a single
| state, provided it is a democracy. The current
| international system is clearly inferior as a means of
| providing universal well-being than a world government
| would be. In fact, i don't see a way to get universal
| human rights without a global government. Believing such
| a thing to be impossible or undesirable comes across to
| me as giving up on the concept of universal human rights.
| nyolfen wrote:
| there will never be a system with "universal well-being"
| and this kind of thinking is religiously delusional. the
| world is made up of many zero-sum systems and resources.
| someone always has to win, and comparative advantage will
| always lead to defection.
| powera wrote:
| Of all the people to be concerned about mass surveillance, I'm
| not sure why "an encyclopedia anyone can edit" would be the group
| to have standing here.
| bawolff wrote:
| You could read their legal briefs to find out, but i think the
| argument is basically by the pigeon hole principle, the NSA
| could not possibly not have been spying on them because
| Wikipedia is so large it is impossible to not spy on them when
| doing mass internet surveilence.
| sublinear wrote:
| > permits the government to intercept Americans'
| international communications without a warrant, so long as it
| is targeting individuals located outside the U.S. for foreign
| intelligence purposes. Section 702 will expire later this
| year unless it is reauthorized by Congress.
|
| It's also important to point out what's actually being
| challenged. Either section 702 needs to be made a lot more
| complicated, or they just continue business as usual. Not
| surprising which path they want to take.
| zapataband1 wrote:
| i'm guessing they don't want their users surveilled
| __MatrixMan__ wrote:
| If I ran a platform like theirs I'd also do everything I can
| to prevent misbehaving governments from targeting my users
| based on which pages they've viewed.
| jesboat wrote:
| From TFA:
|
| > This government surveillance has had a measurable chilling
| effect on Wikipedia users, with research documenting a drop in
| traffic to Wikipedia articles on sensitive topics, following
| public revelations about the NSA's mass surveillance in 2013.
| convolvatron wrote:
| _anyone_ should have standing here
| ClarityJones wrote:
| Part of the purpose of standing it to prevent "friendly
| lawsuits." If _anyone_ can challenge a law simply because
| they claim to be opposed to the law, then people who support
| the law could establish favorable precedent by mounting a
| flawed challenge that's designed to fail.
|
| Standing does not _fully_ prevent this. Sometimes a person
| may want to plead guilty to conduct that is not a crime, or
| intentionally lose and serve a few years in prison if the
| state has agreed to not prosecute them on charges that would
| land them several decades.
|
| However, it's a somewhat useful ~"you have to have some skin
| in the game if you're going to participate in making the
| rules."
| convolvatron wrote:
| if the NSA is illegally surveilling the entire US
| population, how is it that you say that they have no skin
| in the game.
| [deleted]
| selectodude wrote:
| You have to show measurable harm beyond "I don't like
| it", basically.
| sebzim4500 wrote:
| If courts don't think that being spied upon gives you
| standing for a lawsuit, doesn't that completely defeat
| the point of the fourth amendment?
| powera wrote:
| This is ridiculous. I'm getting downvoted for this, despite the
| various comments demonstrating that they aren't sure why WMF is
| involved either.
|
| My recollection from reading about this way back in 2016 was
| that it was about communication between WMF employees, not user
| data. And to have standing, they should be demonstrating harm,
| not just saying "the technical ability to spy on our
| communications exists".
| ff317 wrote:
| It was and is about user traffic, not employees. WMF was at
| least implied to be one of the specific targets, because NSA
| had the Wikipedia logo on some slides about this program
| which were leaked by Snowden. Also, there was research
| showing the "chilling effect" - controversial articles saw
| less traffic in the wake of said leaks.
| mschuster91 wrote:
| Even data about who is _reading_ what is insanely valuable to
| three-letter dataminers. Someone who searches for known drug
| precursor chemicals? Potential next Walter White, put him on
| automated surveillance to check if he buys stuff. Someone
| searching for known explosives precursor chemicals? Potential
| next Islamist or far-right terrorist, flag them.
|
| The list goes on and on, and these scenarios are no longer
| science fiction - once you have the data, it's easy to create
| such automations. Wikipedia even provides helpful
| classification with its category system.
| deelowe wrote:
| Parallel construction is the thing that worries me the most.
| One agency picks up on interesting search traffic, another
| one has a lead from an interview, another has location data
| from cellphone logs. Then, someone sits down and constructs a
| case knowing that these details will come to light in a trial
| and incriminate the suspect. All the while, there were no
| warrants, no charges, nothing, until all the pieces of the
| case had already been pulled together. This is not how the
| system was designed to work.
| colpabar wrote:
| > The American Civil Liberties Union, the Knight First
| Amendment Institute at Columbia University, and the law firm
| Cooley LLP represented the Wikimedia Foundation in the
| litigation.
| ss108 wrote:
| Their counsel is irrelevant to the question of standing.
| ProAm wrote:
| I think it does provide a little bit of color to the
| reasoning. The ACLU is very direct in what they stand for.
| ss108 wrote:
| Standing here would be about whether Wikimedia or their
| members is aggrieved or injured, etc. The poster to whom
| you replied is wondering how the org would meet the legal
| requirements.
| ProAm wrote:
| Ahh I misunderstood your comment. That does makes sense.
| nohuck13 wrote:
| "This government surveillance has had a measurable chilling
| effect on Wikipedia users, with research documenting a drop in
| traffic to Wikipedia articles on sensitive topics, following
| public revelations about the NSA's mass surveillance in 2013."
|
| Research:
| https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769645
| bobsoap wrote:
| ...which, ironically, may constitute a net win, or even a
| desired effect, in the eyes of the proponents of government
| surveillance.
| noodles_nomore wrote:
| Compliance is the constitutive purpose of surveillance.
| dotancohen wrote:
| That is not ironic. It is likely intentional.
| LatteLazy wrote:
| Scotus has refused to hear cases on Mass Surveillance for a long
| time. It tells you the quality of the court, as this is likely
| the largest single issue of our time, touching everything from
| freedom to democracy to criminal law to the role of the judiciary
| and congress themselves...
| concordDance wrote:
| How is it bigger issue than AI or climate change or dysgenics?
| [deleted]
| LatteLazy wrote:
| If the court were likely to hear a single case on whether all
| of AI or all of Climate Change were legal, and rule in a way
| that forces a change in government action, then those would
| be bigger cases.
|
| But I don't think the court is about to make climate change
| illegal (sadly) so...
| tablespoon wrote:
| > It tells you the quality of the court, as this is likely the
| largest single issue of our time, touching everything from
| freedom to democracy to criminal law to the role of the
| judiciary and congress themselves...
|
| It doesn't really. This is one of those policy areas that the
| "tech subculture" tends to fixate on, but that doesn't in any
| way mean it's actually "the largest single issue of our time."
| It's pretty helpful to be mindful of your own biases and those
| of your subculture when making claims like that. What issues
| does the "tech subculture" not really pay attention to that
| could actually be far more significant?
| LatteLazy wrote:
| With the greatest of respect, that's like saying Roe vs Wade
| was a niche gynaecology case or Miranda rights are just a
| question of procedural formalities. I am all for getting out
| of my tech bubble, but mass surveillance is way way beyond
| just the tech sector.
|
| The existence of warrantless wiretapping brings into question
| whether the courts even have the right to overrule government
| actions (a power SCOTUS gave itself back in the early days of
| the republic). They also circumvent key parts of 100 year old
| criminal law like the exclusionary rule. And that's just the
| legalise parts. Not to mention freedom, privacy, democracy
| etc.
| nceqs3 wrote:
| >The existence of warrantless wiretapping
|
| If only FISA required warrants, ohh wait!
| janalsncm wrote:
| > What issues does the "tech subculture" not really pay
| attention to that could actually be far more significant?
|
| Here's one. They heard a case Moore v Harper that tests
| independent state legislature theory. Should state
| legislatures be allowed complete control over electors?
| Depending on how they rule, you'll either never hear about it
| again or it will own the news cycle for a month.
| m463 wrote:
| There are a lot of checks and balances that break down over
| time.
|
| (I think of money/lobbying/laws/regulatory
| capture/copyright/etc)
|
| That said it's amazing that our government was basically
| architected in the 1700's.
|
| I wonder what the next iteration of government will look like?
| LatteLazy wrote:
| I don't think the US will get one. Historically the only
| reforms the US has really seen were when it faced disaster
| (the great depression, WW1 and 2 and the cold war). The price
| of external hegemony is internal paralysis I suspect...
|
| I actually think SCOTUS is one of the better or at least more
| reformable parts. We've had terrible courts (deciding ex
| slaves cannot be citizens or sue in court for instance). And
| good ones.
|
| Right now, were in a reactionary phase after the 60s and 70s
| produced a great cultural advance. Once that dies out we
| might see more progress. Until then we wait and hope...
| ActorNightly wrote:
| Nah.
|
| The vast majority of people just virtue signal about privacy.
| They don't actually care (and when I say care, I mean feel
| strongly enough about it to change their actions to
| specifically avoid surveillance).
|
| Supreme Court is def stacked, but in this case, its likely they
| don't wanna waste their time with something that will 100% have
| no actionable outcome.
| LatteLazy wrote:
| I agree most people don't care. Whether that's because they
| don't know or wouldn't care anyway I am not sure.
|
| That's sort of irrelevant though, if you don't mind me
| saying: the entire purpose of scotus is to take cases that
| the mainstream don't care about but which have significant
| implications either for individuals, small groups or society
| as a whole.
|
| That's why it was the supreme court that created gay and
| interracial marriage. Neither minority could get fair
| treatment via the ballot box.
|
| If the majority cared, in theory at least, they need only
| vote to get what they want. The Senate, the House and POTUS
| all serve them (to greater or lesser or degrees).
|
| SCOTUS is for the little guy. That's why it's members are NOT
| elected or otherwise subject to public opinion.
| possiblerobot wrote:
| Is closing the door when you poop virtue signaling? Or are
| people really more interested in _being seen_ closing the
| door?
|
| I think when given a set of options they understand, many
| people will choose more privacy from companies and the
| government because that's what they want. I think that's
| especially true when they understand the actual scope and
| scale of the surveillance.
| sholladay wrote:
| Privacy done correctly - especially to a degree that can
| meaningfully defend against the techniques used for mass
| surveillance - is technically complicated. The general public
| feels helpless on the matter. That is why you hear people
| argue in favor of privacy without taking much action.
| Improved education will make them feel empowered to act. But
| we also have to improve the software.
|
| Many people switched to Signal recently when they heard about
| it for the first time. The only ones I know who stopped using
| it did so because of UX flaws. Why is there no mainstream
| browser with an "Enable Tor" button? Probably because it's
| the browser makers that are virtue signaling, not the public.
| The browser makers all rely on tracking you to make their
| business model sustainable. Give the people a true,
| reasonable choice for privacy and they will likely take it.
| drsnow wrote:
| >Why is there no mainstream browser with an "Enable Tor"
| button?
|
| Because using anything other than the Tor Browser Bundle is
| a good way to differentiate your usage from that of the
| vast majority of Tor users and render yourself more easily
| identifiable than otherwise.
| sc68cal wrote:
| > they don't wanna waste their time with something that will
| 100% have no actionable outcome.
|
| It is _their job_ to consider these issues. They have their
| entire lives dedicated to this task.
| the_optimist wrote:
| Denied Wikedia Foundation on basis of "state secrets," upholding
| a lower court ruling: https://www.reuters.com/legal/us-supreme-
| court-snubs-wikiped...
|
| Seems like these justices simply want to wave this away as too
| complicated, a valuable secret. Well, if it weren't secret it
| would be illegal.
| Xeoncross wrote:
| More details:
| https://wikimediafoundation.org/news/2023/02/21/u-s-supreme-...
|
| Actual legal documents:
| https://knightcolumbia.org/cases/wikimedia-v-nsa
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(page generated 2023-02-21 23:02 UTC)