Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Can someone please show me the asterisk that says "unless done to protect national security"?
That's a bit of a red herring because virtually everyone (including the courts) agrees there should be some limits to free speech: copyright, trademarks, fraud, consumer protection, libel/slander, obscenity and more that I'm forgetting.
So the real question (whether NSLs should be allowed) is quite a bit more nuanced.
I don't think they should, but not really on the basis of free speech.
While there are limits in the first amendment, its primary purpose is to allow individual citizens to speak out against the tyranny of government.
So while you can quibble over yelling "fire" in a theater, silencing speech against prosecution from the government is diametrically opposed to the intent of the first amendment.
Yelling fire in a crowded theater is not about causing lawless action; the people fleeing in panic are behaving lawfully. The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so.
Brandenburg deals with inflammatory speech (usually hate speech but also includes seditious speech), which must rise to the level of incitement to be criminal, specifically meaning that you must incite others to actually hurt a third party or to actually take seditious actions against the government. Otherwise, the inflammatory speech is justy the expression of personal opinion, which is directly protected by the 1st Amendment.
I was (poorly) raging against the "fire in a crowded theater" metaphor, which gets trotted out too often [1].
I'm mildly interested in the actual hypothetical; out of curiosity can you cite caselaw that backs your claim (The act of yelling "fire" is outlawed because that panic can result in grave bodily harm to others, and is a foreseeable result of doing so)?
The entire framework of the US government's core documents and the non-legal documents written by the founders around the same time completely support the notion that these documents have purposes, chief among which is the defense of citizens from the government itself.
So, ironically, the "fire in a theater" phrase actually indicates the government can simply ignore their own laws any time they feel like it, as they did when the phrase was uttered.
Article I Section VIII enumerates the powers of the federal government, and includes an intellectual property provision, as well as an interstate commerce one.
Interstate commerce is abused by all branches of the federal government, but the point is that laws regarding fraud or copyright don't abate our 1st Amendment rights to free speech.
One of the hallmarks of technology, and especially the internet, is that almost no actions an individual takes can be regarded as truly private anymore. Nowadays, doing anything in some way has an effect on interstate commerce in a way not contemplated by the Founding Fathers.
Raich and Wickard are not unreasonable extensions of federal power--they simply reflect the fact that technology has changed the nature of commerce since the Constitution was drafted.
Except that the power of Congress to "regulate Commerce ... among the several States" does not mean that Congress has the power to regulate an individual's commercial activity. It means that Congress has the power to forbid a state from interfering in commerce taking place across state lines.
The problem with Raich and Wickard (et al.) is not that they extend federal power, but rather that they invent it of whole cloth.
"among the States," not "of the States" or "by the States." This means that Congress has the power to regulate Commerce occuring "amongst" several states. This includes but is not limited to regulating the States' power to regulate commerce within their own borders.
Raich and Wickard do not invent federal power; they simply extend it to the modern era (or rather, into their future and our present day, since technology took a few decades to catch up).
Using that interpretation the Federal government has no meaningful limits on its power, if "regulate Commerce... among the several States" includes every physical thing in the US.
Let me ask you this: What activity isn't covered in your interpretation of the commerce clause?
The exact scope of the Commerce Clause is actually one of the classic questions of US constitutional law. Court interpretations have gone back and forth over the years; currently, things are a bit muddy because members of the Supreme Court have a tendency to expand or restrict the clause to suit their own ideologies (i.e., Scalia believes that a federal ban on marijuana can apply even to marijuana which never crosses a state line, because he doesn't like marijuana; he has a very different and arguably conflicting opinion on gun regulations, though, because he likes guns).
The argument in Wickard is that growing wheat on your farm is interstate commerce because if you grow your own wheat, you won't buy someone else's wheat, which affects the interstate market for wheat. How does that depend on technological progress? Seems like it would apply as long as wheat were sold across state lines at all.
Interstate effect is meaningless if technology cannot support the transfer of goods across the necessary distances. In the 1900s, this technology was mostly physical, related to the transport and storage of goods.
Today, technology across all sectors has improved to the point where you can now order heirloom todays and get same day delivery (in some markets). When these SCOTUS cases were decided, that same process would have taken months.
Interstate markets always existed, despite being less convenient and less popular. If you chose to buy from a local vendor, you were implicitly choosing not to buy from an interstate vendor, which means you were having the indirect effect on interstate commerce that Wickard v. Filburn relies on.
Technology has nothing to do with it. Activity that does not involve trade is not commercial. Trade that does not cross state lines is not inter-state. Non-commercial (no selling, no trading) private activity that never leaves your property is not interstate commerce. The sky is still blue even if the Supreme Court says it is yellow.
Commercial activity does not require trade. Otherwise, professional services such as accounting or law would not be commercial activities since no "trade" actually occurs. Commercial activity simply requires an intent to achieve a net economic benefit position (i.e., profit) through an activity.
Moreover, trade that does not cross state lines can be interstate. For example--you make good Widget that you sell nationwide. I decide in State X that I want to make and sell Widget as well. (Patent, etc. are not a concern in this hypothetical). My sale in State X of widget necessarily affects your interstate sale of the same widget: every widget that I sell in State X is one less that you might sell, which means one more widget is available in other states, altering the normal supply/demand considerations. (I'm not just pulling this out of my ass, this is the actual logic set forth in the SCOTUS cases.)
If they agree there should be some limits they should make an amendment to the constitution versus just pretending like the constitution doesn't exist.
"Virtually everyone" is not qualified to make a constitution, and if by "the courts" you mean the SCOTUS, then the courts have a history of doing a lot of stupid things based on personal bias.
It doesn't, which is why the confidentiality clause of NSLs was ruled unconstitutional. That's the case this article is talking about from the first sentence.
If there were any justice in our system, lawmakers who put that confidentiality clause in there could be sued for dereliction of duty and/or negligence. The same goes for Bush for not vetoing it and thus breaking his oath to uphold the Constitution.
It's one thing for lawmakers to get tripped up on finer points of Constitutional law with which the Supreme Court disagrees with. It's quite another to just play this "catch me if you can" game trying to push the limits of what is possible while ignoring the Bill of Rights.
I'm not sure why y'all are so interested in talking about the first ammendment with regard to the OP... what's it got to do with the first ammendment?
A lot more about the fourth ammendment -- unreasonable searches and seizures, the right to be "secure in your papers and effects" -- the one that says they need a warrant and ordinarily need to let you know the warrant was served). Don't it?
I upvoted and completely agree with you, now let me play devil's advocate a bit. :)
The constitution is not a suicide pact. That is, the system cannot interpret the various provisions of the constitution in such a way that would destroy the country. The Declaration of Independence is a statement of philosophy. The constitution is a rather vague and self-contradictory description of structure. Different thing entirely.
Having said that, what has happened is that 240 years has given all the players in government a chance to find edge cases where they can have their way at the expense of others.
What we're seeing now is a state of perpetual war. This was never envisioned when the country was founded. So we're way off the script.
Counter: The Constitution is a suicide pact. The notion that individual rights are more important than Government is a pretty clear thread though out the document, and that one should not conflate the Government of the particular day with The Nation as a whole. I think it's pretty clear with even a cursory reading of such documents as the Declaration of Independence and the Preamble to the Constitution that the standing belief was that Government should be destroyed and rebuilt if it ever stopped serving the people.
Such as when it falls into a perpetual state of war. Like they complained about England doing. I think it was well envisioned and it's well on script. However, the Founders believed the separation of powers between branches would create adequate checks and balances to prevent it from happening. I think they failed to envision the case where said branches would collude and ignore the rules to protect each other's power quid pro quo, and most people would not notice and not be bothered.
Perhaps a government should be thought of as an AI? In that case, the Founders intent could be re-written to the simple:
> 1. A government may not injure a human being or, through inaction, allow a human being to come to harm.
> 2. A government must obey the laws given to it by human beings (through their representatives), except where such laws would conflict with the First Law.
> 3. A government must protect its own existence as long as such protection does not conflict with the First or Second Laws.
If so, they forgot an important addendum. -- but they can be forgiven, AI research was in its infancy back then, after all. :^)
>A government that keeps growing[1] more complex will inevitably reach Rampancy[2]. It is recommended you implement more than a few kill-switches for when (not if) this happens... Relying on a system to regulate/moderate itself is asking for disappointment.
And of course:
> 0. A government may not harm humanity, or, by inaction, allow humanity to come to harm.
Better to remember that the individuals that make up the whole are still independent individuals and that the whole as an entity only exists in our minds.
We have a tendency to anthropomorphize things. Corporations, Congress, religions, anything that is a group of people can be thought of as a unique, distinct entity of its own. But really, they aren't. Congress isn't one thing, it's 535 people who each have their own brains, their own decision structures. It may be a convenient model to treat them as a single entity at times, but as with all models, it is only an approximation and fails in corner cases.
I pushed a lot of people to remember this when governing our hackerspace. The space was not a thing without the people in it. A lot of people were talking about "the needs of the space" and "where the space was going", talking like there was a creature called The Space who had her own wishes and desires and we needed to be considerate of them. Once we broke that lunacy down, we saw that nobody actually wanted the things people said The Space wanted, it was just assumed these were things everyone wanted, so they went along to not violate the sanctity of The Space.
The Constitution falls into anthropomorphizing Congress. It says, "Congress shall make no law", not "The people in Congress shall make no law." It's the old kid's joke of, "who broke the cookie jar? Nobody! Wow, this Nobody guy sure does break a lot of stuff." If Congress did it, than no individual did it. If Congress is held accountable for something, then no individual can be held accountable.
I'm in the camp of believing it would just get taken over by the same people who are screwing up the political process now. I don't think there is anything to prevent the amendment process from working, other than some weird cultural issues behind people thinking "that's not something you do anymore", like somehow amendments are miracles and since the sacrifice of Jesus there aren't any more miracles in the world (just as an analogy of a thing people believe, not an endorsement of said belief).
It's just too easy to test the legal envelope without any repercussions. Don't like the limits on your power that the Constitution has in place? Pass the law you want anyway and see if anyone notices. Fake-it-till-you-make-it. The Constitution means whatever fantasy Congress and the President says it means, redefined words and all. In order for The People to be secure, the people need to have their personal security violated. In order for Freedom to live on, freedom must be curtailed. It's not until the Supreme Court has someone shove it in their face too hard for them to ignore it that anyone even starts to look at the provisions of these bills. And then the same guys who passed the first one just try again, often with nearly identical wording to the last time, until everyone is just too damned tired to keep fighting.
Let's create an Amendment to hold congresscritters accountable--say, with jail time--for passing laws that violate the Constitution. The Constitution is law with most of its provisions lacking codified punishments. I think only Treason is defined with an explicit punishment in the Constitution. If the Supreme Court decides a law gets struck down because it is unconstitutional, then all the names on the list of sponsors for the bill go to jail. The Amendment could be that all new Amendments must have a codified punishment and all previous Amendments need to have punishments amended to them.
At the least, our use and interpretation of the Constitution has explicitly discounted individual rights in favor of the collective state since approximately Lincoln. Against 150 years of tradition, what the Founders intended (up to and including the arming of the populace as a deterrent against tyranny) is largely irrelevant.
What I find interesting (not judging here) is that people's attitude toward the immutability of the constitution seems to be inconsistent. The same people who invoke the 2 amendment to block any discussion on gun control are willing to "reinterpret" the 1st amendment if it fits their purpose.
Note: My point is not at all about gun control, it's just the first example of inconsistency that I had in mind. Not starting any debate here.
There are plenty of people who strongly support both the First and Second Amendments, not to mention the whole rest of the Bill of Rights and the Fourteenth Amendment.
How do you know? It seems to me like the people who wrote the constitution (and authored/ratified the Bill of Rights) were willing to risk everything to achieve the freedoms enumerated in the constitution and its subsequent amendments. While I'm probably projecting my own opinions onto them to some extent, it seems to me that the founders of the United States would rather see the nation fall apart than become what they set out to destroy.
There's a whole body of Supreme Court jurisprudence about the scope and interpretation of the Constitution. I'll limit myself to saying that its component parts don't exist in isolation from each other, and that a variety of tensions exist between different parts of the Constitution that can be construed as being somewhat contradictory.
I'm not advocating this position, but the best answer to your question would be something like, "The tradition of legal history and interpretation that holds that 'the Constitution is not a suicide pact' and so that anything implying the termination of the United States as a government that can secure those rights generally gets leeway" (though of course the government routinely exaggerates the extent of all these supposed threats).
Aside from political chest thumping, no one has cared about the constitution or what it says for quite some time (well, parts of the judicial system care somewhat, when they're consulted and bother to respond). Laws and rules are for subjects. The mega rich and powerful need not concern themselves with it and as far as I can tell it's almost certainly been that way since the founding of the US.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Around January, upon logging into the Google account, Google showed a strange NOTICE message asking me to accept the terms of usage of my account. This was odd, because in a decade of being a Google user, I had never seen this. I am told that this is Google's way of "telling you without telling you" that you have been served an NSL. Google, by law, is not allowed to tell you about the NSL, but they definitely are within their right to ask you to accept their TOS upon login. This is the "tell" that everyone here should be aware of. If you see this, you are likely being monitored.
Google is weird about that kind of stuff, inside and out.
Google asked all of us who had been around longer than a certain amount of time to re-sign our NDAs because "they lost them" or they "didn't get signed your first day of work" or something like that. I asked to see a copy of the old version so I could diff it (visually, ugh) to see what I was supposedly agreeing to in the new one.
They provided the old version all right... not AN old version, THE old version. As in, the actual (scanned) copy I signed my first day of work... and it had my signature on it, right next to the date, just as I remembered it.
I found out much later they pulled this on a whole bunch of people.
I think part of it was something like "if you access corp from a device, you have just tainted it and we can dig around on it at any time, including when you quit", which I mechanically translated to "never read my mail, Buzz, or anything else from home unless I'm on the company laptop or the Nexus One which they gave me and is fundamentally tainted anyway".
This could have affected my personal iPhone, Linux box(es) at home, and anything else which might have accessed google.com/a/google.com/... resources. So, I basically stopped checking mail unless I was at work.
I also think they tried to make it retroactive to the day I started work, but I'd like to see that fly in a court of law. Retroactively tainting my machines? Good luck with that.
Ha, I just had to re-accept TOS for an AppEngine site I have. I noticed the TOS haven't changed since December 2012 and I've logged in numerous times since then. I hope they enjoy perusing my 200 rows of a database and weep with me over my failure of a website.
A national security letter (NSL) is a demand letter, which differs from a subpoena. It can be used by US government agencies, mainly the FBI, when investigating matters related to national security.
Compliance with the gag order of NSL was originally voluntary. It became compulsory in the mid 1980s as I recall.
"[A court] may impose a civil penalty of up to $10,000 per day for each day in violation after the issuance of the order or after such future date as the court may specify."
SS confirmed over the phone that they monitored my Google account,
after I told them I knew they were. At first, they would not tell me
they did and denied it. The agent actually said "Google should not
have told you that"
Getting followed by a federal agency is no fun, but it's funny how they manage to muck things up once in awhile. Kind of like how the FBI, when tracking Aaron Swartz, tried in vain to locate him in Chicago: http://www.aaronsw.com/weblog/fbifile
Of course, since it's just regular ole folks doing things, sometimes mistakes happen. What, are you complaining? Do you hate the police/military/people who keep us safe? Socialist!
I was amused by the entrapment bit. They always try that. I think of this poor black guy who got recruited into a fake islamic jihad gang and how they gave him a fake bomb and rented a synagogue for him to leave it in and he got jumped by 50 cops on the way out the door, yelling "Allah Akbar"
On some level I feel bad for him, but you've got to be a dope to fall for that.
If someone emails you on an identifiable account, asking you to commit a felony, you should always say no, regardless of financial state. If you're going to do illegal stuff for a living, you should, at a minimum, have another identity.
It is funny how many people will email you though. I wrote a tiny, babycakes cracking tutorial, just to demonstrate how reversing most "protection" that average devs do is pretty easy. Even years later, I get emails from people begging me to crack stuff for them. I always tell them off. But sometimes they're persistent and come up with stories as to why they really need help and here's the DLL.
Even the most intelligent and informed citizen (including lawyers and judges, for that matter) cannot predict with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.
I'm not an american, but I'm a spare-time security researcher, hoping to make a career out of this in the future. The last few cases reported here on HN give me the impression that if you stumble upon a vulnerability (which, by the looks of it, seems similar to the one involved in the AT&T case), it's best to keep it to yourself. You have nothing to win by reporting it, and possibly a lot to lose if you do.
I think a good solution would be a generally accepted security flaw reward contract. If most corporations with an online presence adopted some uniform agreement, we'd have a standardized method of report and reward.
It would be nice if they did so, but I don't think companies should be obligated to pay for bug reports from researchers that have no association whatsoever with them. Those that pay seem to get more reports, both in numbers and in quality, at least that's what Google says. Also, I think that a consumer should have the right to speak up when personal data is at risk, but that's a whole other story.
In this case, I'm more worried about the "lots to lose" part than about the "nothing to win" one. For some reason I'm even fine with doing charity work for the benefit of billion-dollar corporations from time to time [1]. But not if there's the risk of them coming after me in the future...
That guy actually accessed, downloaded, and leaked the confidential information--which is using the vulnerability, as opposed to simply doing theoretical research, which is what I was asking.
I'm glad I live in the UK/Europe where privacy (certainly of physical post and my local network, plus the various services I use around Europe). Shame my Gmail is firmly under the US authorities.
It makes me sad to see the authorities of countries like the US using entrapment and other dodgy tactics to catch criminals. The US is soon to become like 1984 with drones monitoring people in cities, huge cloud computers monitoring all internet traffic, and feds running lawless tapping everyone's phones.
Claiming the UK has better individual privacy than the US is blatantly false. There are a lot of things I like about the UK, but privacy is not one of them. Some examples:
The UK has no equivalent to the Fifth Amendment. In the UK, it is a crime not to give up your encryption keys to the police when requested. The punishment for keeping secret keys secret is two years in prison if you are suspected of most crimes, and five years in prison if you are suspected of "heinous" crimes.
The UK also does not have something like the 4th amendment, which means that things like the Terrorism Act 2000 pass without challenge. Admittedly, the USA has been just as bad in this regard (with such things as the PATRIOT act), but I suppose some of the blame has to go towards the public attitude immediately following 9/11.
In the landmark United States case Griswold v. Connecticut, 381 U.S. 479, the SCOTUS ruled 7-2 that there was an implicit right to privacy in the United States constitution, backed by Constitutional Amendments 1,3,4,5,9, and 14. This right to privacy has not yet been used to protect internet privacy, but considering that the internet as we know it has been around for only 20 or so years, this is not exactly surprising. SCOTUS judges have a history of voting for a right to privacy despite their own personal beliefs, as demonstrated in Griswold v. CT, Bowers v. Hardwick, Roe v. Wade, etc. so this should hold up when it comes to internet privacy as well.
And then, of course, there's the UK's history of egregious privacy rights violations, including widespread state-sponsored video surveillance, suspicion-less stop-and-searches, extensive usage of web-filtering system, and even deep packet inspection of and tampering with content transferred over HTTP.
So the funny thing is that the UK already has extensive monitoring of people in cities, huge cloud computers monitoring their traffic, and extensive wiretapping. What you're describing as a terrible future for the US is already a reality in the UK.
> The UK also does not have something like the 4th amendment, which means that things like the Terrorism Act 2000 pass without challenge.
That's true, if by "does not have something like the 4th amendment" you mean "has Article 8 of the ECHR", and by "which means that things like the Terrorism Act 2000 pass without challenge", you mean "which means that things like the [suspicionless stop&search powers under the] Terrorism Act 2000 are ruled illegal by the European Court of Human Rights[1] under Article 8 and consequently repealed under s. 10 of the Human Rights Act[2]"
> Neither of those things are indigenous to the UK's government.
The Human Rights Act 1998 enacted the ECHR into UK law. So what if the ECHR applies to a wider area than just the UK? The US constitution isn't indigenous to the state of Michigan, but that doesn't make it any less applicable there.
(You'd have had a better argument if you'd gone for 'unlike the US constitution, the HRA (and ECHR) isn't entrenched into UK law in a way that makes it hard for a government to repeal', which would have been a valid point).
> It's not like the UK actually follows half the things outlined in the ECHR
Of the 19 final declarations of incompatibility that had been issued by UK courts under the HRA by August 2011, only a single one hasn't yet been remedied (being the absolute ban on prisoner voting).
So no, I don't think that's true. The UK's actually pretty good at fulfilling it's ECHR and EU legal obligations (certainly compared to some Eastern European countries).
>Of the 19 final declarations of incompatibility that had been issued by UK courts under the HRA by August 2011, only a single one hasn't yet been remedied (being the absolute ban on prisoner voting).
You're right, my mistake. I was not aware that the Terrorism Act 2000 had been found not in accordance with the law. In my defense, it did take them 10 years to decide so. The last time I had studied the issue in-depth was before Gillan and Quinton v United Kingdom.
So that's +1 for the UK; the courts have at least stood up to suspicion-less stop-and-searches. Of course, that's only a very small part of the problem.
Isn't it the Netherlands the most frequent user of subpoenas for electronic information.
Also, your assertion that you have more privacy than Americans is almost as ridiculous as Americans saying they have more freedom than the Chinese. We're all oppressed in slightly different ways.
Please keep the politics off HN. NSLs were around before 9/11. And there's nothing to suggest that any other US President would have a different response. (I agree with your underlying sentiment, but it isn't constructive.)
If I understand things correctly, what changes is that only a subpoena is all that is required after 18 months, where before that a search warrant is needed. But there have been some efforts to change this:
I dont have any evidence it was from opening this site. But three hours after I opened it, my fb account was comprimised. Login was from an ip in montana I believe. Cant figure out why I'd be targeted or who was doing that. Changed my privacy settings anyways to use two-factor
Auth. Also happy that fb knew to block access after the rogue login.
The big question is if our government is supposed to be "of, by, and for the people", then how did it manage to become this separate entity--with a life and agenda of its own--that has now turned against "the people"?
We all (myself included) talk about the government in the third person. Yet, it is supposed to be our representative and our voice. It is supposed to be "us".
So, why are we so powerless to stop things like this, the Aaron Swartz tragedy, PATRIOT Act, etc?
One reason: Another terrorist attack like 9/11 is 'immediate', that is, right in front of people, something to be afraid of right now. Shooting holes in our Constitution is a danger more abstract, more distant, less immediate, although in total more serious. So, with the usual short sightedness of people and politics, we throw away some of our liberty in hopes of some short term security. And, we are gullible, get manipulated, get sold nonsense by the MSM, etc.
In simple terms, the solution is for the voters not to fall for such nonsense.
In the US, yes. Most people believe that the authority to rule over others based on a vote is legitimate, ethical, and desirable.
Personally, I don't think it's legitimate or ethical that some guy I've never met asserts the right to rule over my property because another group of people I've never met got together and voted on it.
Not sure we're talking about the same thing. In the case you mention, isn't the problem you have with the people who voted?
And isn't the issue you take, in general, not with an individual "ruling over you", but with the very notion of majority rule (i.e. that "a group of people you've never met" can vote in ways that affect you/your property/etc.)?
Edit: Because I would say that the problem is the opposite: that our government is no longer an expression of the will of "the people". And my question is why isn't it?
My point was that the electoral process is what is meant by "will of the people." In that regard, the government IS acting in accordance with the will of people.
But you asked why we are powerless to stop things like the Aaron Swartz tragedy, PATRIOT Act, etc. My answer to that is because we've all decided to cede that power to a vote.
Ok, now I think what you're talking about boils down to representative democracy vs direct democracy. I do think that's where the breakdown occurs, especially given the money in our representative democracy and our two-party system.
Because voting in a direct democracy would not be ceding power, it would be directly expressing it. Now whether we would "do the right thing" remains to be seen, particularly given the massive degree to which many are misinformed or misled.
Of course, once our will is expressed, thereafter comes the execution. That may involve similar apparatus to what we have now (DOJ, FBI, etc.). Not sure that wouldn't lead us right back to where we are now, with abuses, etc.
"The big question is if our government is supposed to be 'of, by, and for the people', then how did it manage to become this separate entity--with a life and agenda of its own--that has now turned against 'the people'?
"The people" can turn it around anytime they want. When enough voters shout "frog", Congress jumps. But getting that many people to shout at the holes we have seen shot in our Constitution is not so easy.
You asked why? Okay, first reason is that there are problems, and conceptually the easiest solution is for Congress to pass a law and the executive branch to set up a program. So, DC gets bigger, richer, and more powerful.
Second reason is that our gumment is heavily for sale at prices that are not high enough. So, lots of 'special interests' quietly get what they want, and gumment gets bigger.
So, gumment gets big and powerful, and then lots of people want to be part of this power and work to keep gumment big and powerful.
Third, out in voter land, there is not much in good information and a lot of confusion. Mostly people are fed, by the media joined at the hip with the politicians and other special interests, a lot of emotional nonsense that keeps up the divisions and, thus, forestalls a clear consensus on curing the problems.
My favorite example in the last election cycle was abortion. Take whatever view on abortion you want, there remains a rock solid fact: Roe v Wade was 40 years ago, and the chances of changing it are from zip and zilch down to zero. So, talking about abortion is essentially just a waste of time. Still there was a lot of such talking. Lots of people got concerned. Lots of women got scared. And the holes we were shooting in our Constitution were ignored. And the media was filled with stories about Brit and Lohan.
I hate that media nonsense. So, I stay informed as best I can from a few Internet sources and nearly totally ignore the MSM. E.g., I haven't touched a print news publication in likely over 10 years. I have TV only because for one year it's a little cheaper to have it, but I have no TV set connected to the settop box and don't watch TV. I'm doing a startup, and in part I hope it does something about this mess and results in better informed voters and better gumment.
I think you nailed a lot of the problems: money plus a two-party system equals disasterous. Likewise, the degree to which many are misinformed and manipulated.
But, even with that, I wonder which group specifically benefits from the kinds of abuse we see with NSLs and the Aaron Swartz tragedy? You can easily see how security firms and the defense industry benefit from war, new technology for airports, etc. So, there is a direct path from the lobbyists to the politicians back to the corporate interests.
But, where privacy is simply being invaded or abusive power wielded over an individual, you ask: who is directly benefiting? There is certainly interest in maintaining the status quo by the same moneyed interests noted above (and others), so that is ostensibly the purpose of such abuse and control.
But how, precisely, does that interest translate to these abuses? How is this effort to control by removing rights or infringing upon them communicated to those who execute? Who is communicating it to them?
Because this, seemingly, is at least one place where the gumment takes on the role of a third entity that is no longer representative of the people, but frequently at odds with them.
"But, even with that, I wonder which group specifically benefits from the kinds of abuse we see with NSLs and the Aaron Swartz tragedy?"
Good question, example, 'exerecise':
First, Congress passed the Computer Fraud and Abuse Act, or CFAA. Why? Drawing from our high level, theoretical explanation, some people with big bucks went to Congress, twisted some arms, crossed some palms, etc. and got the law passed (I'm omitting details, but they are likely not very important to this exercise). Who with the big bucks? Some organizations with computer or Web sites that didn't want to be 'hacked' -- to use the crude meaning of this word common in CFAA discussions. Then when the law was passed, the big bucks people could smile, congratulate each other, go for drinks at some Capitol Hill watering hole and celebrate how much they really stuck it to the 'hackers'.
Second, Swartz writes some scripts or some such, parks a computer in a closet, lets it run, and downloads "millions" of 'documents'. Essentially every file he got is also available for free in any research library in the world or to anyone on the MIT network from JSTOR. And Swartz had no very good way to distribute large numbers of those documents or get paid much for his efforts. And JSTOR had a heart to heart with Aaron who promised not to do that again or some such.
Third, the "millions" was enough to serve as raw meat to some prosecutors in the Boston office of the DoJ. Then the 'case' went forward as in our theory: The prosecutors were already in big gumment too big: That is, long we tried not to have criminal laws at the federal level but to leave such to the states. So, in this sense the CFAA should have been a Massachusetts matter. Next, prosecutors in small, local parts of gumment answer fairly closely to the voters, but the Boston office of the DoJ answers to voters very indirectly or not at all. Next, one of the Boston prosecutors wanted to get publicity to 'move up' in gumment, e.g., run for governor. That in reality her "overreach" would hurt her chances of elected office and maybe even end her career in gumment was lost on her. Instead she was apparently a bit slow between the ears and in the old school of "the law, the law, the letter of the law". Of course the Boston office of the DoJ should have been throttled by the DC DoJ, AG Holder, or even Obama, but was not. Why? One might look at Holder and guess that he wanted to project an image of a tough guy, i.e., show the 'little people' how he and big gumment really are the big boss. And Obama likes to avoid involvement and just "vote present". And Obama can be fairly sure that one case in the Boston DoJ office won't much hurt his reelection chances. Or, the Congress, the Boston office of the DoJ, the FBI, the DoJ itself all have a lot of power, and as we know "power corrupts, and absolute power corrupts absolutely".
For the NSLs more generally, those seem to be part of a pattern: Whenever the civil liberty people want to throttle wire tapping, poking holes in our Constitution, etc., lots of gumment police and prosecutors come out of the woodwork and scream that they really need these laws to catch the bad guys. So, the police and prosecutors are always screaming for more power. They really like power: Now police cars have automatic license plate readers and a computer and a wireless connection to do a lookup on the owner of the vehicle and check on, say, the date of the latest state vehicle inspection. No doubt all that electronics in all those police cars costs a lot of money, but apparently the police really like the power. Well, when 9/11 provided an excuse for a lot more police power, the police got a lot more power, and we shot holes in our Constitution. People in big gumment keep grabbing more power. Don't have to be a anti-gumment 'libertarian' to see that big gumment has gotten much more powerful over the last few decades.
Here's an example: We had Secretary of State C. Rice say "We don't want the smoking gun to be a mushroom cloud" and her statement that the aluminum tubes were for use in uranium enrichment centrifuges. She got away with both statements; both were taken seriously in the media and, apparently, our political fora. Of course, both statements were, to quote from 'All the President's Men', "total BS". Saddam had made no significant progress to being able to create a "mushroom cloud"; it was easy for nuclear technology experts to confirm that the tubes were not suitable for centrifuges; and the US DoE had already told Rice that. Still, our media and politics are so gullible for stories of threat that her "total BS" was influential. Or, last night I watched again the old James Bond movie "Tomorrow Never Dies" about a wacko newspaper mogul who was thrilled to notice "There's no news like bad news." which is much the same as the newsroom standard "If it bleeds, it leads", which some people say rests on some fundamental human psychological vulnerability to too much in fear.
As voters, we are too gullible, too easily led to see holes punched in our Constitution, to see over active big gumment, throwing away blood and treasure, stepping on individual citizens, etc. I say this not as an anti-gumment libertarian but just as someone wanting to see better gumment from less 'overreach' -- the Swartz case, "foreign entanglements", "foreign adventures", etc. I'd take the US Federal gumment back several decades and even there tell the over active state department to take a hike or take a rest.
But, there are people who want to get their hands on big power and, thus, rush to careers in big gumment. The solution is for the voters to say "No". Quite effective is just to cut their budgets. For this solution, key is better information available to voters. I suspect that a lot of the needed information is available but not promulgated by the MSM and their traditional 'journalistic' values. I believe that the Internet can be the source of such information. I hope my startup will help people do better finding what they want ('safe for work') on the Internet and, in particular, do better tracking their gumment, in the US and even outside.
