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Posted by: jeffery1 1 year, 5 months ago
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jeffery11 year, 5 months ago
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You're incorrect in saying that
"Technically speaking a state could wiretap but the federal government cannot as the state can take any power unto itself that it wishes to that the Constitution does not specifically prohibit them from doing."
The constitution harmonized citizenship between all states. This means that a state cannot take away your rights because under the constitution you have rights that must be observed by each state. Each state can make up its own rules so long as they do not infringe upon your rights as a citizen of the United States.
Therefore, a state cannot wiretap a person if it does not follow the Fourth Amendment:
"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."
Unless, of course you're a Republican that believes in authoritarianism acting in opposition to a spineless Democratic Congress and a compliant Republican SCOTUS. The American people, ignorant and right-wing, got the government they deserve.
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willottica1 year, 5 months ago
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"Therefore, a state cannot wiretap a person if it does not follow the Fourth Amendment:"
Key word there is "if". The Fourth Amendment is not clear in disallowing wiretaps. Many try to infer security of communications from it, but it guarantees your rights to your person, house, paper, and effects. Telephone calls are not one of those 4 things. They can't go into your house to setup wiretaps (violation of house), nor take your own personal transcripts of phone calls (violation of papers), but there is nothing to say that your conversations over public phone lines or airwaves (or privately-owned) cannot be overheard or recorded.
IF the Fourth is to cover wiretaps in a definitive manner, it needs to be accompanied by an Ammendment (as Mdiar pointed out, the 28th) that expands upon it.
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jeffery11 year, 5 months ago
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The Fourth Amendment is explicit enough to cover technologies that did not exist and do not currently exist. Reread the Fourth amendment and understand that wiretapping is a search and seizure because it is equivalent of what was private conversation and correspondence. A warrant is required.
Of course, interpretation is key, with Republicans arguing that government suspicion is required as "probable cause" and Democrats arguing that they don't want to look weak and so will ignore the concept that underlies the very concept of natural rights.
The ONLY reason that an amendment would be needed to explicitly cover any given technology is that the right-wing world-view is now predominant. This means that the constitution is essentially meaningless and the U.S. as we conceive it no longer exists. Maybe it never did.
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Mdiar1 year, 5 months ago
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No. The authoritarian world view is predominant. Once more, just because it is authoritarian does not make it right wing. A fine example of a right wing philosophy that is not authoritarian is the Libertarian Party of the US. Ron Paul was also extreme right wing. Was he an authoritarian?
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Mdiar1 year, 5 months ago
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I think we are each using slightly different terminology but saying the same thing. There is a social right which I think should be authoritarianism and a social "left" which is libertarianism. At the same time we have a fiscal right, which is the free market, and a fiscal left which is more of a collectivist economy.
Oh well. It happens. Essentially you are speaking of the social right, which I would agree with (except on a few issues, gun control being one of them, where the social left comes off more authoritarian, by and large it fits though). I was speaking of the fiscal right. Whom, though I disagree with, I respect.
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willottica1 year, 5 months ago
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"Reread the Fourth amendment and understand that wiretapping is a search and seizure because it is equivalent of what was private conversation and correspondence."
Reread the Fourth and understand that no such equivalence is implied nor present. Wiretapping is neither search nor seizure. There is nothing physically being taken from the wiretappee, nor are they in any way inconvenienced by the act of wiretapping.
I agree with Mdiar's comment below, that the government does not have the authority to conduct wiretaps nor demand them of telecoms because they have not been granted that power (10th Amendment). However, that same Amendment states that the telecoms DO have the right to record such conversations, and if they want to provide that info to the government, it's in THEIR power.
Also as Mdiar pointed out below, the 10th is one of the most widely-ignored Amendments around. The federal government goes on and on imagining (and using) powers not granted to it by the constitution.
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willottica1 year, 5 months ago
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Many people cite the Fourth as guaranteeing a right to privacy. But I've read and re-read it, and cannot see where it says that.
The following article uses the "right to privacy" argument for Fourth Amendment protection of email, but as most ISPs have privacy policies that explicitly states that content may be monitored, there is NO reasonable assumption of privacy. Unless you specifically order a secure telephone line from the government, I don't see a reasonlable assumption there, either. After all, as part of the evolution of the telephone, there were "party lines" shared by many people, any of whom could listen in.
http://www.theregister.co.uk/2007/11/04/4th-amendment_email_privacy/page3.htmlThe 10th Amendment is what prevents the government from having the power to listen in, and it would also protect us from the government from having the power to compel telecoms to provide phone or email records. (The fourth may also protect the TELECOMS from this) But neither the Fourth nor the Tenth protects you from TELECOMS or ISPs willingly handing over the info.
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Mdiar1 year, 5 months ago
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The positive was most definitely not intended due to the last paragraph and you completely missed the entire point of the conversation.
Firstly, from a literal reading the Fourth Amendment does not grant a right to privacy. A literal reading is an entirely valid interpretation of the Constitution and, going by the literal reading, does not apply to wiretaps. However, if we go by a truly literal reading by everything, the Tenth Amendment is what prevents the federal government from instituting a wiretap program and it is also what grants a state the right to do this, unless the state constitution has a prohibition against this somewhere.
Therefore, from the argument Republicans tend to use regarding the right to privacy not existing within the Constitution, they are still incorrect about the authority of the government due to the Tenth Amendment. Anyway you look at it, the Tenth pretty much makes a wiretapping program illegal for the federal government unless they pass an Amendment stating otherwise. While the Fourth is up for interpretation, the Tenth most certainly is not.
The best way to defeat an argument is to accept the ideas they put forth and then use those same ideas against them. A literal reading of the Constitution is used to justify wiretapping programs. A literal reading can then be used to show how such a program is illegal, just not under grounds of the Fourth.
You are correct about the state's having to respect the Constitution, it is the supreme law of the land.
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