Thanks for the insights. Still, I think it is too soon to tell what was going on, but what we know so far about Snowden getting access in the first place indicates there certainly are problems with the way NSA protects the data it gathers, if not with the breadth of gathering itself.

What a bitter irony if NSA is properly limiting its own access to constitutionally protected data, while incompetently allowing our enemies to gain access to that very same data!

As I've said before, there's a difference between whether thousands of NSA analysts (1) have essentially unfettered technical capacity (i.e., system access permissions) enabling them to listen to domestic communications without a warrant or (2) have essentially unfettered legal capacity to listen to domestic communications without a warrant.

As to (1), I surmise the answer is "yes."

As to (2), I surmise the answer is "no."

Snowden said the answer to (1) is "yes."

Unfortunately, if the answer to (1) is "yes," a "no" answer to (2) is not reassuring. If thousands of individual NSA analysts and/or technicians (like Snowden) have unfettered technical capacity, it is not sufficiently reassuring that they lack legal authorization.

Various government statements have so far assured us only that the answer to (2) is "no," but those statements have been mushily parseable about whether the answer to (1) is also "no."

Tap rap!

@Reusser: Tallies of the number of "right leaning scholars" do not trump the Constitution. Appeals to authority, right leaning or otherwise, do not qualify as argument. Nor do fuzzy feelings of complacency engendered thereby. (And they do not motivate me to scour your previous posts in search of something approximating an actual argument.) Sleep well!

@Scott Reusser: Hysterical? Or somnambulant? Or both? To the somnambulant, prudence probably seems hysterical. Yet to suggest, without offering argument or evidence, that those with a different opinion are hysterical is hysterical.

As much as I love the man himself Bush's foreign-policy has played out to be a disaster, unleashing an Arab Spring that has thrown the Middle East into dangerous turmoil, because Bush failed to follow The Astonishing Doctrine, which is: Never start a war you don't finish before you leave office, because you can't depend upon your successor to clean up yor messes.

QUESTION (albeit, somewhat rhetorical):

It seems to me nonsense that disclosure to "third parties" (almost) always negates privacy under the 4th Amendment.

The ordinary activities of modern life make it necessary to disclose to "third parties" information that by all reasonable understanding is still private. My bookstore keeps a record of my purchases. My cable company probably has a record of which news channel I watch. My Internet service provider maintains backups of my emails.

Under this "third party" rule, government deputizes third parties (through bribery or coercion) to gather and turn over citizens' private information that government itself could not constitutionally obtain. (I am very concerned about how government and internet/communications companies are slyly structuring their legal relationships with each other and with consumers to permit and encourage mass snooping, e.g., regulatory approvals conditioned on promises to assist in government data-collection.)

I propose that a better rule for disclosures to third parties would be something like this: 

In the absence of reasonable suspicion that the particular information disclosed contains evidence of crime, disclosure to third parties, by itself, does not negate privacy if the disclosure is reasonably appropriate to facilitate the transaction.

What do you think?

QUESTION:

Please comment on the notion that disclosure to "third parties" negates the expectation of privacy. What exactly is a "third party"? It might sound like a silly question, but I want to know: What makes a "third party" a "third party" and not a "second party" or an "agent" or "a representative" or even a "first party"?

Without negating the expectation of privacy, law firms regularly disclose communications to "third party" document management companies they hire to digitize, catalogue, and store their voluminous records. But if I store my personal data on Apple's cloud or transmit it via Verizon, apparently I have no expectation of privacy.

Every four months I get my brain radiologically scanned, and the result is "disclosed" to scores of "third party" medical professionals. Apart from HIPAA, do I have no right of privacy for the highly interesting data about my very own brain?

Why is it that some "third parties" in some contexts are considered  "agents" to whom one can disclose without negating privacy, while other "third parties," such as Verizon, in similar contexts, are not?

QUESTION:

Andrew McCarthy recently claimed that:

[Because] "the animating idea behind the original Fourth Amendment is protection of personal property . . under the Fourth Amendment as originally understood,  . . . it would not be a violation to wiretap a person’s conversations by physically attaching a monitoring device to the phone company’s line on a public street, without any entry into the person’s home or trespass on his property." [emphasis added]

Do you agee with McCarthy's suggestion that the original purpose of 4th Amendment was to protect personal property, especially in light of the people's right "to be secure in their persons." Because a "person" is much more than mere flesh and bone, I believe warrantless wiretapping would be an unconstitutional invasion of the "person" no less than a warrantless search of a home would be an unconstitutional invasion of property.

In that article McCarthy goes off the deep end, asserting that, if 4th Amendment jurisprudence had evolved correctly, "it would not be a violation to wiretap a person’s conversations by physically attaching a monitoring device to the phone company’s line on a public street, without any entry into the person’s home or trespass on his property."

Wow!

Without delving into philosophic arguments about whether one's "person" under the 4th Amendment includes more than mere flesh and bone, it's enough to note that McCarthy's obliviousness to the 1st Amendment implications of his interpretation of the 4th Amendment indicates he makes a fearsome prosecutor, but not a fine legal scholar.

George W. Derrida?

(Who else could have coined a term like "misunderestimated"?)

The answers to your three questions are state secrets.

Dr. Steve, thanks for the interesting discussion. Unfortunately, I must break off now as someone is knocking at my door. (Yikes!)

The indiscriminate and mass seizure of information without warrant in and of itself offends the 4th Amendment's particularity requirement.

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.

It would be sophistry to interpet the 4th Amendment to permit goevernment to seize without a warrant that which government could not constitutionally seize with a warrant.

I guess we'll never know, since the dumbness of NSA is a carefully protected state secret.

Apart from whether it is technologically possible for government to find the terrorist's socks without putting its electronic hands my socks, government convenience and efficiency does not trump 4th Amendment's particularity requirements.

The fact that a terrorist hides somewhere in that big sock drawer otherwise known as New York City does not authorize the government to search every home in New York.

To which you might say, "We know the terrrorists hide in New York, but we just can't single them out. However, we might find them by surreptitiously, permanently, and remotely activating the cameras on every laptop in New York and then running the video through facial recognition software until we get a 51% likely hit. (But until then, we promise, no one will look at the video.)"