I hate playing devil's advocate on this topic, but here goes.

There are _real_ terrorists out there, and also agents of other states. These folks need observation for a free country to be able to do the various things it has to do. (Or, if they don't, it remains to be shown how such a setup would effectively work).

I am completely against maintaining files on your own citizens which can then be "mined" to find illegalities or improprieties later on. However -- that doesn't mean that some folks shouldn't be watched. Heck, in a country with 250M people, the odds are that there are a heckuva lot of borderline crazy people who should be monitored. I seriously hope the local constable has a good idea of the top people in his area that he should keep an eye on.

I think we make a mistake when we focus on the NSA exclusively and talk as if all data collection is wrong. We need a principle that allows for nuanced collection -- not one-size-fits-all slogans.

So sure, I hope the other agencies are collecting info on folks in my country, and I hope they share that information with my own country's security services -- under the right circumstances and with the right protections in place. What I don't want to see happen is the creation of a data pool where crimes can be "discovered" that normally wouldn't matter.

(Really hated writing that, but somebody had to do it)

I don't know anyone who is claiming that having a police force is bad, or that all investigations should be illegal. That's a strawman. Unless you can point us to people saying that?

The debate has always been about (a) the effective destruction of the warrant system and (b) the pathological levels of lying that have accompanied it.

Luckily, there exists a design for a system that allows for nuanced collection, as you put it: warrants authorised by skeptical judges who filter out fishing expeditions, combined with punishments for law enforcement workers who try and game the system. It's actually just the old system we thought we had and was fairly uncontroversial.

However the intelligence agencies are not in the business of doing such work. If the old system was rigorously enforced then we'd be left only with the question of foreign spying. Arguably that should just be scrapped in the modern world: the most valuable commercial secrets are all in the 5 Eyes countries to start with anyway, spying on allies makes them less likely to be allies in future, and if you subtract out the foreign wars started by the west you're left with things that seem to produce little real world impact (watching North Korea for instance: what are we gonna do about it, exactly?).

> We need a principle that allows for nuanced collection

In fact, that's exactly what the Fourth Amendment demands. If the government has probable cause to suspect someone of wrongdoing, they can a search warrant particularized to that one person. Authority to spy on everybody's communications is exactly the type of 'general warrant' that the Fourth Amendment was intended to prohibit.

I don't think that the issue is that people are opposed to a police force to gather and use using data effectively to protect it's own citizens. It's when they use a foreign agency to make and end-run around their own laws that is at issue. There are some fundamental differences between domestic and foreign surveillance.

Domestic intelligence has to comply with the country's own laws, ultimately created and supervised by a democracy (ideally). If the populace wants to error on the side of less safe and less surveillance, that's their decision.

Foreign intelligence is pretty much by definition 'criminal' in nature. As a theoretical example... a CIA agent using fake identities in foreign countries tapping phone lines is a criminal in the place where he is acting. Even when intercepting German <-> German communications on his own soil where it is technically 'legal' goes against the spirit of due process in Germany and may be illegal there. Should they be prosecuted? Can they? The answer is interesting but certainly tough to answer. Ideally friendly governments would understand this problem and try to protect their own citizens from spying by other 'friendly' governments through treaties... don't spy on my citizens and I won't spy on yours.

Unfortunately they do the exact opposite and transfer 'foreign intelligence' gathered by one country on a foreign citizen to the 'domestic intelligence' services where that citizen lives. This is a dance around the due process rules. You can't just contract out your law breaking to some foreign government or company.

You know they interpret this to be nuanced collection, don't you? They capture all the data and then when there is a lead, they inspect it and they consider it collection at that time. The bulk capturing of the data is to make nuanced collection available, otherwise the data might no longer exist.

The myth is that it has anything to do with terrorists, the definition they are using (and its hyper political, the president won't just say something is terrorism) pretty much excludes Americans. Now if they expanded it to include the Sandy Hook shooter, the Batman shooter, Fort Hood, etc... Then at the very least you could make a case that they are collecting the right data when they capture American data.

> These folks need observation for a free country to be able to do the various things it has to do.

Do you have any evidence for that?

I would argue the exact opposite: in order for a free country to exist, the amount of spying done by the country on its citizens and even outsiders must be pretty small at most. Each unit of "watching" applied to the public reduces "freedom" by the exact same amount. It isn't clear whether there's any increase in security at all. The watching may be 100% destructive, with no benefits whatsoever.

It was never the case that all collection was wrong.

However it is still wrong to just collect all the data you can on everyone, even if everyone now doesn't include your own citizens.

>> So sure, I hope the other agencies are collecting info on folks in my country, and I hope they share that information with my own country's security services -- under the right circumstances and with the right protections in place.

This is no different from having your own guys do it. Possibly it's worse.

I think, perhaps, the way out of this is a universal moratorium on the commercial collection and retention of data, along with safeguards for data mining by government agencies for criminal (not intelligence) purposes.

We must remember that as far as I can tell, governments have always wanted to collect whatever they could about anybody -- citizen or not. I do not agree with this, but the tendency is not limited to one government or another. What's new in the equation is the vast numbers of commercial applications/services that also want to track your every move online in order to keep you as a customer. It's this collection/retention of data that governments are now tapping into. If nobody had kept anything past 2 or 3 days, there wouldn't be much to mine.

The distinction you are looking for does not exist. The primary justification for what the NSA is doing is crime: namely terrorism. The entire purpose of the NSA is to find criminals, which is a problem, because the definition of criminal can be anything the people in power want it to be.

For instance in the UK they're busy trying to crack down on "extremism". The Prime Minister has given a speech about extremism where he actually said words to the effect of "For too long we have been a passively tolerant society where if you follow the law, we leave you alone". GCHQ is absolutely being mandated to find extremists. It's merely the next chunk of the slippery slope that started the moment the law changed to try and fight terrorists.

>The primary justification for what the NSA is doing is crime: namely terrorism. The entire purpose of the NSA is to find criminals

Is it? My understanding is that NSA was founded for intelligence and counter-intelligence purposes. Cold war. SIGINT. And that is what it still does, although the capabilities of international terrorist/criminal organisations have become comparable to the capabilities of many nation states.

CIA is also an intelligence agency, but human intelligence (HUMINT), not signals intelligence. FBI, on the other hand, has a primary justification of fighting crime. DEA is quite similar but focuses on drug crime, and ATF on alcohol, tobacco and firearms. CSI conducts mass campaigns against people with some intelligence in all countries, with sub-offices in CSI (NY) and CSI (Miami).

(I'm not American, but have learned this much about the American three-letter things, mostly from popular fiction.)

It could be interpreted that the NSA exists to catch criminals. Spying on the US government is a crime in the eyes of the US government, no matter where you conduct said spying. Counter-intelligence is an effort to catch those that spy on the US government, despite the fact that is likely illegal in the country of the person being spied upon. Although, what they do in terms of counter-intelligence doesn't always turn into criminal proceedings.

I think that the role of counter-intelligence is most of the time not really catch anyone, but to 1) get information from an adversary, and 2) develop methods which allow to protect own information against adversaries.

Hence, my last sentence.

But I've always understood a part of counter-intelligence is to counter the intelligence gathering of an adversary, or I suppose ally as well depending on circumstances. Which is what you are saying with your second point. Therefore, there is someone to catch doing it, just in a broad definition of the term.

Spying on the U.S. is not a crime, and doesn't need to be. Between sovereign entities there is no rule of law, and sovereign entities have an inherent right to do whatever they need to protect their interests. It's a very different situation from the domestic criminal justice system.

As I said earlier, spying on the US government is a crime in the eyes of the US government. I think many a caught spy that was convicted for espionage would disagree with your statement that it is not a crime.

Yeah I'm having trouble with that argument too. How do you reconcile "countries interact in the lawless state of nature" with high-profile espionage prosecutions of non-citizens?

And there's the rub: I don't think most free citizens consider the murdering of thousands of people to be a crime. An attack, an act of war? Sure. But some weird version of a spree killing? Not so much. Especially when we're seeing large NGOs with missions to destroy/incapacitate existing nation-states.

So to argue that "it's all the same" really does a disservice to the analysis here. It's not. In the past, we had clear lines of civilization: pirates and others who operated without being part of a nation-state were executed on the spot. Now, however, we want to treat anybody we meet as being all the same. That's a nice sentiment, but it ends up classifying ISIL as some weird kind of criminal organization, and it is most certainly not that kind of thing at all.

I think the problem here is the idea of allowing those that execute pirates on the spot to also be the group that identifies the pirates. Just because someone has the P brand on the back of their hand doesn't mean they started out as a pirate.

Besides, one country's buccaneer is another country's privateer. I don't think those lines were as clear as you seem to think.

Terrorism is not crime. It's war. It is a grave threat to the criminal justice system to try and conflate the role of the military and the role of the police by treating (foreign) terrorists as criminals and not combatants.

Counterargument: war is a conflict between sovereign states. Terrorism is violence utilized by political pressure groups, not sovereign states. Terrorists are no more at "war" with the US than the Al Capone gang was, or Zetas gang in Mexico.

The Taliban was a sovereign state that, for a basket of reasons, actively supported terrorist attacks on the US. The invasion of Afghanistan was a war.

Al Qaeda is not a sovereign state; they're a criminal organization.

What makes it difficult to prosecute Al Qaeda using US criminal procedure is the fact that they're mostly non-citizens, mostly operating out of the US, mostly in countries that are not especially cooperative with the FBI.

In fact, I think my counterargument says that the "grave problem" is the opposite of the one you pose. It's not that prosecuting Al Qaeda criminally risks corrupting the criminal justice system. It's that prosecuting them as a sovereign who we're at war with has demonstrably corrupted the military.

Historically, we have dealt with belligerent non-sovereigns (e.g. pirates) via the military. How do you think treating Al Qaeda as a military threat has corrupted the military? My great worry is that if terrorism is treated as a crime, then the protections available to all accused criminals will be watered down to accommodate the needs of prosecuting terrorists. That's what, e.g., has happened in the drug war. There are a lot of bad doctrines (e.g. no-knock warrants) that were motivated by the drug war (specifically the ease of concealing or destroying evidence of drugs).

By blurring the line between law enforcement and military actions we've made it much to easy to deploy military force (most notably airstrikes) as a means to expediently solve problems. Where does that slippery slope end? When do we start carpet bombing drug cartels? We've already been invited to do that.

War doesn't have to between sovereign states. War against non-state actors is accepted as valid.

The US constitution even has provisions for it: Congress can call forth the militia to suppress insurrection.

I think, with all due respect, that that's a load of bollocks. Commercial data collection is abhorrent for a variety of reasons, but large-scale, secret government collection of data is a threat to democracy regardless of safeguards.

When I said all collection was not wrong I meant targeted collection, with a warrant and some oversight.

Anyone having access to a database containing the information for large proportions of the population is being handed more power than humans should have over each other, more than enough to blackmail a few key politicians and keep things looking rosy for themselves.

No, nobody had to do it.

"We" don't need anything. In this matter, you do not speak for me. And that is all that truly needs to be said.

Having expressed your opinion that surveillance is permissible based solely on one's mental state differing from the modal pattern, you have implicitly permitted the state to use medical diagnosis as a weapon against dissent, and thereby discouraged any such borderline cases from admitting their weaknesses to seek treatment voluntarily.

Congratulations. You have increased the number of crazies out there, many of whom are now taking steps to conceal their condition, which necessarily includes avoiding doctors and therapists that keep records.

Furthermore, you resort to such weasel words as "right circumstances" and "right protections". The right circumstances are fabricated for the sake of appearances. The right protections are bypassed for the sake of expediency. Surely, you are not so naive as to not realize this would occur?

The local constable can keep an eye on those people who have outstanding warrants, those who are on parole or probation, and those under investigation pursuant to actual complaints and accusations, rather than statistical profiles. Everyone else should be left alone.

If this practice makes it more difficult to intervene in certain types of crime, that is an irreparable structural weakness in all free societies. You cannot close that gap without making your society much less free, and I might add that the attempt does not appear to be making the formerly free societies any less dangerous.

You are proposing a secret police. That's an insult in the face of history.

What justification is there for nuanced collection? Relevant people said (something along the lines of) nothing was only known via NSA, either it wasn't known or the other agencies found out.

The problem is that most terror organisations have been sponsored or are still secretly supported by the US government or its allies with approval from the US.