This is a note, written by a law student. Not a reason to discount the analysis, per se, but worth keeping in mind if you were thinking of skipping the article and taking the conclusion at face value.
The actual analysis starts at 367. The gist of the argument, from a quick read, is that Kyllo (the case that held that the government could not use infrared cameras to look into peoples' homes) established that the government could not use extrasensory searches to get information about what's inside areas protected by the 4th amendment. To the extent that biological vitals and medical information are protected (an uncontroversial point), it follows that using extrasensory technology to obtain that information violates Kyllo.
To expand on your summary, first the author provides one on the last 2 pages. Also a significant part of this is that these administrative searches (at airports) must be to prevent terrorism not for "ordinary" crime. FAST would make no distinction (and it's hard for it to make a distinction between any crime and mal-intentions). Further, searches of medical data must meet a higher standard and warrants are required (at least in the case of DUI blood draws, with a few exceptions).
Specifically, since the numbers are pretty unbelieveable if you haven't seen such arguments before: if the bad guys are as numerous as 1 in 1000, then the number of false positives will be 999*19% > 189 in 1000. That is, if you are identified as a bad guy, then the odds are worse than 1 in 190 (just over 0.5%) that you are one.
Haven't read the post, but a precision on Kyllo: extrasensory searches are fine if we're talking about doing it with commonly available tools. Binoculars are fine, helicopter-mounted infrared cameras aren't. The idea being that people _expect_ the public to have certain things but not others.
Now I imagine that most ways to get vitals would be pretty intrusive and require non-common (as in, not in use by everyday people) hardware, but generally speaking Kyllo only invalidates a certain class of instrument
FAST seems to be some kind of polygraph-type scanner using cameras. It's very likely that it doesn't work but some military contractor will make millions off of it anyway. Any efficacy data will probably be unavailable or classified. Efficacy doesn't matter to the authorities anyway because having people believe that their minds are being read is almost as good as actually reading their minds.
Are you sure things like this can't work? I work in a computational neuroscience lab and we do a lot of modelling and also machine learning. Things like Eulerian Video magnification (EVM) already prove you can do the rudimentary proof of concepts of such "FAST scans" like being able to extract heart rate and blood flow from a simple video. Techniques like EVM can even be used to detect sound from video files simply based off vibration of the objects captured in video. It seems it wouldn't be too outlandish to assume that EVM techniques + some other more classified technologies + unlimited funding of the NSA/Homeland Security/CIA/TSA could be combined to create something like the tech purported in the link. For the record, I don't work in the actual lab that developed EVM, just in a similar field.
OK, so lets assume the cameras work. For the same reasons polygraphs have no basis in science, nor would these. I fucking hate the TSA and am fucking furious every time I have to wait to be sexually molested. I'm also worried that they'll fuck up and I'll miss my flight. I'm nervous because I'm worried. I'm constantly looking around to find out how many TSA agents are just fucking around doing nothing.
Yet, I'm not a terrorist. And you know what? most people aren't terrorists. The false positive rate so high it essentially makes the test meaningless and unable to discern an actual threat.
The rather strong verbal comments aside - I think this is almost certainly correct.
Polygraph tests are notoriously inaccurate - where as for something like terrorist threats the number of real positives you are interested is probably in the x > 1/10^6.
That's totally fantastic - consider that pregnancy tests have a false positive rate in the single digits.
The language is strong, but pretty much encapsulates the impotent anger I feel even __thinking__ about interacting with the TSA. On the rare occasions when I must, my anxiety and fears match very closely to the GP's post's language.
And this is why... I don't go to US. There has been two highly interesting conferences in NY and one in SF (for which another founder offered to give me his tickets for free). But I use a false name on Facebook, which is against my contract with an american company, which is an impersonation, and I don't want to risk it with a TSA agent.
The newer scanners are much less invasive. You can turn your head and see the display, it's very basic. And I've found TSA agents are much more interested in getting you through security, than holding you up in security. I saw many things that were extremely upsetting a few years ago, but barely much of anything even noteworthy lately.
Now this FAST thing anyhow, sounds insane. I will assume it just doesn't work and isn't going to be a Problem. But really, you would want to be able to stop it or put better bounds on it.
But from what I can tell, you can only sue to stop something after it has already harmed you, not just because it could cause future harm. You have to show damages to even be heard. So, how can you show damages until after it's already built and deployed?
> The newer scanners are much less invasive. You can turn your head and see the display, it's very basic.
But we'll nicely violate your 4th amendment rights, it's OK!
> And I've found TSA agents are much more interested in getting you through security, than holding you up in security.
Which is why the assign 1 person to the first class line. 1 person to the pre check line. and 1 person to the 4 normal lines. and then have 4 people standing around doing absolutely nothing. The TSA (as an org, not as individuals) is concerned with making money for large political contributors and keeping people afraid.
> But really, you would want to be able to stop it or put better bounds on it.
But really, I want to stop everything that's happened because it's all been insane, completely unhelpful, and worth exactly $0 of the billions we've spent on it.
> So, how can you show damages until after it's already built and deployed?
By having enough people who actually care and are politically active enough to be very loud when things like this happen. Senators and Representatives need to know that their constitutes won't stand for it.
Polygraphs are not just ineffective, the practitioners are frauds and quacks. It is widespread public knowledge that polygraphs simply don't work any better than reading tea leaves or entrails. They are perpetrating this fraud on the public and on the law, and ought to be harshly punished for doing so.
Polygraph tests do work, but as a social engineering technique and nothing more. Test takers are manipulated into behaving in certain ways based on the belief that the machine functions as they are told. The key is in the way the administrator interacts with the test taker.
In short, the same techniques don't apply to this TSA tech and so I doubt it works.
Maybe you're fed up, maybe you want to be by yourself...who knows. So you look down and see a tortoise. It's crawling toward you...
You reach down and flip the tortoise over on its back, Leon.
The tortoise lays on its back, its belly baking in the hot sun, beating its legs trying to turn itself over. But it can't. Not with out your help. But you're not helping.
Other posters point out that polygraphs have large error rates and that even the thought that they can 'read you mind' acts as a deterrent. In general, reading one's own mind is somewhat difficult given a stressful situation, let alone reading another's.
Yes, you can do heart rate stuff, but many medications affect that tremendously, you can do temperature stuff via IR video, but that is also super error prone. Just running to grab your flight, a perfectly reasonable thing to do at an airport, would trip every alarm in the building. Your gait would be off, your temperature, heart rate, blood pressure, eye dilation.
The issue is that humans come in an incredible array and variety of conditions. Even if you could take a baseline for every person that would ever want to fly before they got to the airport in a sterile room, the data would be useless by flight #10. This is leaving aside the tremendous human rights issues, engineering, and cost factors.
That said, computers are getting better and better at this every day, so the feasibility is there, it is just that you have to do tracking on an unheard of scale and on a day to day running basis across every single person on the planet. The disease and medical applications are the way to get it 'passed' (whatever governing body that may be), not the TSA.
...and it would be readily defeated with some Xanax, and a bunch of false positives from people afraid of flying, authority figures, or missing their flight. Or any of 1000 other human reasons why people get stressed.
Kind of like that report about how efficient the airport "backscatter" scanners were. All we know about the report is a congressman said that "if released we'd face public outrage". But hey, someone's making a ton of money out of it, so who cares...
He meant he likes the mod posting it because it's transparent, but knows that it's a pain for the mod and feels that having this automatically happen would aid in being transparent because then the mods don't have to do special things.
It seems to me that the law and precedent are used by courts much like the Bible is by preachers. You can justify almost anything you want.
I read the whole paper (sans footnotes) and it makes a lot of sense. Had I not also read the legal memo on extra-judicial assassinations, I'd be a lot more confident that an average person could predict court decisions based on the current body of law and precedent. But I think any decision can be reached, at least in practical effect, considering the power to dismiss cases and exclude evidence.
This is true, but only to a point. In principle, if the reasoning is flawed in some obvious way (say, writing a memo on executive power during wartime without citing Youngstown Steel, the leading case on the subject), other people with requisite training will sooner or later recognize that, and the error will be corrected.
Of course, this requires public scrutiny to work. Hence the problems with secret legal memos and secret court opinions.
Let me begin by stating that I think the TSA, as implemented, is a huge waste of money and time.
That said, I am not sure any searching done by the TSA can violate the 4th amendment - you can always refuse a search if you're ok with being ejected from the airport.
Even Henry VIII had to come up with a plausible legal justification for breaking with the Catholic Church.
Being "bound by the Bill of Rights" does not mean that the government must give effect to the broadest interpretations of Constitutional protections. It only means that it must follow clear dictates when they exist, and offer plausible legal constructions when they don't. What we've learned about the NSA programs indicates that the government internally tries to toe what well-defined lines exist without crossing them. Otherwise, we wouldn't be talking about minimization procedures or the distinction between data and metadata.
This article is a great example of the concept. If a police officer walked by your farm in 1789 and saw smoke from a fire, it would not be protected by the 4th amendment. It's totally reasonable for the government to argue that the same principle allows them to observe infrared emissions from inside a house, and it's totally reasonable for the Supreme Court to conclude otherwise. It only becomes unreasonable if the government ignores the dictate once the rule is clear.
> What we've learned about the NSA programs indicates that the government internally tries to toe what well-defined lines exist without crossing them.
?? Is this before or after Clapper lies under oath to congress? is this before or after the Senate Torture report came out along with the revelation that the NSA tampered with evidence.
I struggle to understand how you rationally form such a conclusion. We only know this occurs because of a whistle blower who his own government now calls a fugitive. You truly believe the government constrains itself and follows the law in "well-defined lines", I really struggle with taking you seriously, the government has greatly warped common sense -- do you recall the torture memos, the strange legal reasoning that calls torture "enhanced interrogation techniques", do you believe the "disposition matrix" lives within well-defined lines? How would you even know sense so much of even the LEGAL reasoning is secret and above purview.
Outrageous dangerous claims you are making and it is disgusting.
We live in a world where the government can drop a nuke on Japan, vaporizing tens of thousands of civilians (including some American POWs), and that's 100% legal. What exactly is "common sense" in such a world, and why does waterboarding or drone strikes run counter to that "common sense"?
The Constitution invests the executive with tremendous power to act in the interest of national security. That was one of the overriding purposes of the document, one written in response to the earlier federal government's failure to put down internal rebellion. That is, like it or not, one of the clearly-defined lines.
How utterly disgusting, you will write that "What exactly is "common sense" in such a world, and why does waterboarding or drone strikes run counter to that "common sense"?"
You are simply a stooge, a lawyer in DC suckling at the government teat, you have the gall to defend torture as nothing but common sense. Sickening, go head and down vote me, you are worthless trash and a fascist.
>We live in a world where the government can drop a nuke on Japan, vaporizing tens of thousands of civilians (including some American POWs), and that's 100% legal.
hahaha, ok maybe you are just insane. How is that legal, are you invoking the Bush doctrine[0] of pre-emptive strikes, although to call that legal is a stretch. Are you suggesting that during a declaration of war it becomes legal? Currently under international law that would not be legal unless agreed upon by the security council.
The Constitution limits the scope and powers of the state and invests the remainder within the body of citizens, it is meant to limit abuse of power by the government. The US government seems little interested in such restraints these days.
Are you going to defend torture as a clear well defined line the government follows, how about one part of government lying to another under oath, is that well defined, how about legal memos that are so secret they cannot be divulged, is that well defined?
> How is that legal, are you invoking the Bush doctrine[0] of pre-emptive strikes, although to call that legal is a stretch.
The nuclear bombing of Japan was not a pre-emptive strike. Pearl Harbor was a thing.
> Are you suggesting that during a declaration of war it becomes legal?
While there are some prohibitions in treaties in force or what is accepted as customary international law on conduct during War (though fewer at the time of the atomic bombing than now!), yes, the consequence of a legal state of war -- whether initiated by declaration or an external attack -- generally is that fighting war by any but such prohibited means is legal. Those making the case that particular conduct is not legal would need to identify the source of the prohibition.
> Currently under international law that would not be legal unless agreed upon by the security council.
Well, the UN Charter postdates the atomic bombing, but even if it didn't it does not prevent the use of force against an aggressor once war has started (though someone had to violate the charter to start the war.) See, particularly, Article 51 of the Charter.
>> How is that legal, are you invoking the Bush doctrine[0] of pre-emptive strikes, although to call that legal is a stretch.
>The nuclear bombing of Japan was not a pre-emptive strike. Pearl Harbor was a thing.
The OP is using the present tense(unless he edits his comments), perhaps he would like to edit what he wrote to suggest that in the past it was considered a legal action to drop a nuclear weapon on a nation the US was at war with, but if the OP continues to use the present tense I can only continue to believe he is INSANE to believe it is CURRENTLY legal to drop nuclear weapons on ally nations.
The OP never responded to what he so clearly believes are "clearly-defined lines." and he will not respond to direct challenges of 1: clapper lying under oath, 2: US engaging in torture and refusing to prosecute. We can even give a historical example, was imprisoning US citizens of Japanese decent and confiscating their property within a "well defined line" no, it was simply a government run amok with fear and hatred trying to defend itself.
The Constitution is a domestic instrument. It does not limit what the United States can do abroad, and the founders were clear that it wasn't meant to do any such thing. Indeed, the concern during the drafting was not about how to limit the government's powers abroad, but how to ensure that it could still act as a sovereign entity abroad despite being limited domestically.
The Constitution is the basis of all US government authority, it is not merely a "domestic instrument".
> It does not limit what the United States can do abroad,
Several provisions of the Constitution directly and explicitly concern what the United States can do abroad, and which institutions of the United States government are entitled to do those things, so that seems an implausible interpretation.
> and the founders were clear that it wasn't meant to do any such thing.
The founders were quite of different minds on many points, and you can often find founders on multiple sides of any issue (including matters of Constitutional interpretation.) Where's the evidence that the founders, collectively, were "clear" on this point?
> As for "international law"--there is no such thing.
The Constitutions grant of power to Congress to "To define and punish [...] offenses against the law of nations;" certainly seems to suggest that they thought that the "law of nations" was not a phrase that referred to something nonexistent.
> The U.N. is not a sovereign entity
No, its a product of treaty, ratified by the US Senate under the provisions laid out for such in the Constitution.
"It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality. Neither the Constitution nor the laws passed in pursuance of it have any force in foreign territory unless in respect of our own citizens." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).
The U.S. cannot engage in war because the Constitution says so. It can engage in war because it's a sovereign country, and waging war is a characteristic capacity of sovereign countries. Admittedly, the U.S. has entered into certain treaties limiting itself in the conduct of war.[1] But in that case, the U.S. is bound not because of "international law" but because those treaties translate international law into domestic law. And it is bound only to the extent it has agreed to be by those treaties.
> "The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the federal government as necessary concomitants of nationality"
And the Constitution only mentions these to prevent member-states from partaking in these actions of their own accord. A 1936 ruling is a generation after the Civil War, so there is a predominate interpretation of who was actually a sovereign at the time, right?
I'm not arguing with you, I just find the topic interesting to say (basically) "we can do this because we're a country" when that hasn't always been the end-all-be-all of it.
> And the Constitution only mentions these to prevent member-states from partaking in these actions of their own accord.
No, the Constitution mentions them to assign what agents of the government have the power to do them, and the conditions on the exercise and the interrelations between those powers and other powers.
Note that, pieces of the powers related to war, peace, and foreign relations are assigned to different entities in the Constitution (some to the Congress, some to the President, and some to the Judiciary.)
Your war argument boils down to "who gives authorization and to whom".
International law is both a fairly novel and fluid concept, and as with product guarantees, grants of legitimacy or otherwise vary greatly in there effects. Much of the UN's power lies in the Secretary General's authority to give a stern talking to of those chuffing the General Assembly, subject to approval by the Security Council or veto by any of the Permanent Members.
There are numerous countries which have acted either in opposition to UN measures, or which have succeeded in blocking actions to sanction them within the UN.
There are also other international legal arbiters though their authority is not universally recognized, e.g., the International Court, or more complex arrangements under various international criminal law constructions.
All are routinely flouted.
A country could allow for itself no military or violent action -- I imagine that the hypothetical Constitution of the Jainist State might do just that. In which case the country would, by its own laws, have no legal right to offensive or defensive action causing harm.
I'm finding dragonwriter's arguments far more persuasive here.
Why do cats have the capacity to kill mice? Because they're cats. Nobody gives them the right to kill mice. It's silly to even ask the question. They may choose to do it or not. But having the capacity to do so is characteristic of their very existence.
That's basically the premise of Curtiss-Wright. It rejects the idea that the federal government requires an affirmative grant of power to exercise sovereign powers abroad, because those powers "would have vested in the federal government as necessary concomitants of nationality." The Constitution might impose a certain allocation internally about how that power is exercised, but it doesn't really purport to limit the scope of those powers in any significant way.
Put a cat in a context in which it's subject to the authority of another entity and that specific cat might well find that it is expected to behave in a specific way toward mice -- either to kill them or not. And that the cat might be rewarded and/or sanctioned based on that activity. I'm not arguing that this is a legal context, but that rights and obligations exist within a power and control context, which might or might not exist.
Regards C-W, your quoted passage states specifically "unless in respect of our own citizens". Which is to say that U.S. law, under C-W, can specifically govern the actions of the US and/or its citizens.
The recent record also seems clouded. There have been individuals whose extradition to the US has been sought (or secured) for actions occurring principally or totally outside the U.S. The case of Manuel Noriega comes to mind:
"In April 1992 a trial was held in Miami, Florida, at the United States District Court for the Southern District of Florida in which Noriega was tried and convicted on eight counts of drug trafficking, racketeering, and money laundering."
There's also Executive Order 12333 2.11:
"No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination."
Further, your use of C-W doesn't support your previous statement: "[The Constitution] does not limit what the United States can do abroad". It simply states that there do exist powers which, even if not explicitly listed in the Constitution, would exist. Not that the Constitution could not specify, define, and/or limit such powers.
Which in fact it does -- the United States cannot engage willy-nilly in international agreements with other nations, or engage in acts of war. Both of these require specific actions of affirmation vested in the Legislature: Declaration of War by the full Congress, treaty approval by the Senate.
Which is why I find myself reluctantly siding with the vehement nature of gun rights advocates in spite of really desiring a world where guns would not be necessary to possibly keep the "government" (which is increasingly fewer and fewer people with more and more oppressive laws) at bay.
On a side note, I find it ironic that those who would most need guns to both protect themselves from the kind of government that "gun nuts" fear and under possible circumstances of social collapse to protect themselves from "gun nuts", are also the least likely to know how to properly operate with them or want to keep guns for self protection. There is really very little that would allow me to believe our society is even remotely civilized or responsible enough to not necessitate an armed population.
Just take this story for example. Is anyone in the government saying no, you know what, the precursors of mind-reading are too far and not in line with the spirit of the very first and most basic principle of this country. No, you don't and wont hear that, just like you haven't heard that about all the other abuses and violations that have preceded this. Hell, we have the very thing that the "crazies" used to warn about, just even better, self-maintained dossiers on every single person in the country in the form of aggregated social profiles and internet tracking and monitoring.
I don't understand the idea that gun rights are important because it helps to check oppressive government.
Aren't oppressive gun regulations the sort of thing that guns would let you fight against? It's always presented as, "this must be legal, or else we will lose our ability to fight for freedom." If guns don't let you preserve gun rights, how will they let you preserve any other rights?
the idea is simple, you give up one your likely to give up on others. One area that people vastly under estimate government and people in politics is their ability to sway people. Both spends tens of millions if not more of dollars in studying people; marketing studies.
They simply start representing the class they need to strip rights or property from in increasingly negative terms, using indirect comparisons and eventually direct. For the children, you like children don't you? Down to "denier" or Nazi. We are here to protect you from people who think wrong, you don't think wrong do you?
The easiest thing is to convince people using fear and jealousy. Politicians are adept at playing groups off each other thereby being able to look like they are the savior above the fray.
So yeah, gun rights are important because they are a right the people were given on day one. What people tend to forget is that government is granted rights by the people and not the other way around
The US military can't control a country (Iraq) with 4.5% the land area and 11% the population; I find it unlikely the US military would do better in the event of a serious civil war within the US -- and that's assuming no portion of the US army defects against the government.
The only real solution would be to bomb civilian areas under the guise of stopping militia fighters, which, as we've recently seen in history, makes you popular with the locals.
The problem is that those guns don't only work when their owners are are supporting a free rebellion. They can also be used to usher in a tyrannical government. Hell, since the US is a democracy, its probably more likely to usher in a tyranny than defeat one.
The Southern states used their guns to kill hundreds of thousands of Americans to hold up slavery.
The actual analysis starts at 367. The gist of the argument, from a quick read, is that Kyllo (the case that held that the government could not use infrared cameras to look into peoples' homes) established that the government could not use extrasensory searches to get information about what's inside areas protected by the 4th amendment. To the extent that biological vitals and medical information are protected (an uncontroversial point), it follows that using extrasensory technology to obtain that information violates Kyllo.