Encryption

[Jeff250]

I just hastily replied to request from the White House regarding a petition I signed. They were looking for additional comments and I sent them this without thinking or checking my spelling and grammar. I hope it is coherent, haha. I really should have spent more time on this, but who has time these days?

When speaking of what makes a strong nation there are many elements; social policy, management of natural resources, industry and commerce, the list goes on. However, the greatest strength comes from trust in the legal contract between citizens and the government they create. Trust is the binding agent that brings unity and allows the population to be greater than the sum of it's parts. Strong encryption is essential to maintaining that trust in Era of Dig Data. Citizens need the freedom to discuss ideas, all ideas, even those that challenge established traditions, without fear of repercussion. Strong encryption compliments our constitutional right to do these things. I can imagine no scenario where compromising that trust is the best solution.

As an aside: Encryption is necessary for protecting your privacy, but unfortunately it is also insufficient, and using it I think can lull one into a false sense of security, as it only protects your data, not your metadata (that is, who you are talking to, how much, and when). Protecting your metadata is as important as protecting your data, as your metadata reveals all of your associations. Unfortunately, protecting your metadata is much more difficult, but tools such as Tor aim to do this with your Internet metadata.

[sigma]

In my opinion, Tor is another myth about anonymity on the Internet.
In order that the sites could not determine that you are using Tor, you should use a VPN servers, which in turn try to collect and steal as much as possible confidential information about you.

[vision]

As an aside:...

Thanks for that. I'll be sure to mention this when I sign a petition about meta-data. I'm sure I will come across one eventually.

[snoopy]

I don't see any reference to the fifth amendment in these decisions. The reason why the fourteenth amendment is invoked instead of the first is because the suits are against state governments, not the federal government. The first amendment does not restrict state governments directly except through the due process clause of the fourteenth amendment.

If you read the decisions, you'll see that the governments' actions in each case weren't found to be unconstitutional for the reason that you describe. For instance, in Shelton v. Tucker, the court found no problem with the state compelling teachers to be required to answer questions about their qualifications per se. However, they found that "[t]o compel a teacher to disclose his every associational tie is to impair his right of free association, a right closely allied to freedom of speech and a right which, like free speech, lies at the foundation of a free society." Moreover, as further justification, they recite,

By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.

Still... I believe you're inserting the "First Amendment" portion - where the decisions explicitly point to due process of the law... not raw freedom of speech. My qualm remains in the broad brush with which interpreting chilling effects as first amendment violations could be applied. If all it takes to violate the first amendment is for a government agent to cause a chilling effect (without the due process aspect) then why isn't any court a violation of the first amendment? Why isn't a government agent's mere presence a violation of the first amendment? That's where the due process comes in - if the agent is acting to compel the divulsion of information (The NSA strong arming AT&T, the police staking out specifically an NAACP meeting, or the government requiring the information as a condition of employment) then they violate due process - which collaterally harm's one's freedom of speech. In other words, some chilling effects by government agents are violations of due process, and thus one's freedom of speech, but not all of them. I'll go back to a question I posed earlier: if government agents can't collect information without violating the first amendment as a product of their surveillance, how do they ever get to the point where they have anything upon which to get a warrant?

Really, at this point, my argument isn't about what the NSA is or isn't doing - it's with the idea that generalized government-caused chilling effects are a violation of the first amendment. And... back to my original comment about chilling effects: I only slow down upon seeing a cop car when I'm speeding, I only change what I'm talking about when my boss walks in when I know that I'm inappropriately loafing on company time, and I only change what I do on the internet (due to fear of government surveillance) when I know what I'm doing isn't legal... In other words, I only really experience a chilling effect when I know I'm guilty.

[vision]

In other words, I only really experience a chilling effect when I know I'm guilty.

You just killed your point and proved Jeff250's. We don't live in a black and white world where guilty and innocent are always clear. It's why we have a court system in the first place. Some of our current laws are written so vaguely that they can be interpreted several ways. And not only that we are constantly changing, adding, and removing laws. The First Amendment guarantees freedom of speech, but you don't have real freedom if you are afraid that something you might say will wind you up in prison (think McCarthyism).

[Top Gun]

Not only that, but I can guarantee that everyone in here has tapped on the brakes while passing by a cop, even if they were already doing the speed limit, or glanced down nervously at the speedometer for a moment if one was driving by you.

[Jeff250]

Still... I believe you're inserting the "First Amendment" portion - where the decisions explicitly point to due process of the law... not raw freedom of speech.

You're getting unnecessarily hung up on their use of the phrase "due process clause." Question: Why did they cite the Fourteenth Amendment's due process clause and not the Fifth's? Here they are for comparison:

nor be deprived of life, liberty, or property, without due process of law

nor shall any State deprive any person of life, liberty, or property, without due process of law

The only difference is that the Fourteenth Amendment extends the clause to restrict state governments in addition to the federal. Since the amendment was passed, the Supreme Court, under the incorporation doctrine, interprets the Fourteenth Amendment's due process clause as extending the entire Bill of Rights to restricting state governments. In the Shelton v. Tucker opinion, they even say...

By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling.

In their opinion, they make no reference to due process except for in the phrase "due process clause of the Fourteenth Amendment." But they do specifically cite the teachers' "right of free association," "freedom of speech," "freedom of inquiry," and "freedom of thought." If these aren't First Amendment rights, then it is only in an extremely pedantic sense that isn't very important.

My qualm remains in the broad brush with which interpreting chilling effects as first amendment violations could be applied. If all it takes to violate the first amendment is for a government agent to cause a chilling effect (without the due process aspect) then why isn't any court a violation of the first amendment? Why isn't a government agent's mere presence a violation of the first amendment?

It's not clear to me that recognizing chilling effects as First Amendment violations introduces any new major difficulties that didn't already exist to interpreting the First Amendment. For instance, to use your police officer in restaurant example, when I gave criteria such as whether the officer was on or off duty, whether he was specifically targetting a controversial political meeting, etc., you said that the rules were "now getting very qualified," but these are the same questions that would be asked about any possible First Amendment violation. More questions would be whether the officer was acting in the capacity of a law or was acting independently, etc.

I'll go back to a question I posed earlier: if government agents can't collect information without violating the first amendment as a product of their surveillance, how do they ever get to the point where they have anything upon which to get a warrant?

You're horribly misrepresenting my case. I never said that government agents can't collect information without violating the First Amendment. I'm saying that the NSA's mass surveillance violates the First Amendment.

I expect government agents to conduct an investigation the same way it was done 1788 through 2001. And since, e.g., the NSA's mass phone surveillance was found to not prevent a single terrorist attack, presumably they ended up doing their investigations the same way after 2001 too.

Really, at this point, my argument isn't about what the NSA is or isn't doing - it's with the idea that generalized government-caused chilling effects are a violation of the first amendment. And... back to my original comment about chilling effects: I only slow down upon seeing a cop car when I'm speeding, I only change what I'm talking about when my boss walks in when I know that I'm inappropriately loafing on company time, and I only change what I do on the internet (due to fear of government surveillance) when I know what I'm doing isn't legal... In other words, I only really experience a chilling effect when I know I'm guilty.

The chilling effects of NSA surveillance are empirically measurable. For instance, they are quantifiable changes in the way that information is accessed on the Internet, such as via Google search queries or Wikipedia page views. The notion that surveillance only chills illegal behavior is contradicted by empirical evidence.

[snoopy]

It's not clear to me that recognizing chilling effects as First Amendment violations introduces any new major difficulties that didn't already exist to interpreting the First Amendment. For instance, to use your police officer in restaurant example, when I gave criteria such as whether the officer was on or off duty, whether he was specifically targetting a controversial political meeting, etc., you said that the rules were "now getting very qualified," but these are the same questions that would be asked about any possible First Amendment violation. More questions would be whether the officer was acting in the capacity of a law or was acting independently, etc. ... You're horribly misrepresenting my case. I never said that government agents can't collect information without violating the First Amendment. I'm saying that the NSA's mass surveillance violates the First Amendment.

The distinction between the due process clause of the fourteenth amendment and the first amendment is still important to me. I wouldn't disagree with you if you had stated that the NSA's mass surveillance has serious due process implications. (I'll leave it to the lawyers to decide if it's indeed a violation, but it seems damning.) I think that what you say above is exactly why. To me, the first amendment is clearly about the writing of laws which restrict speech... while the due process (the fifth amendment as applied to the federal government, the fourteenth as applied to state governments.) is about what I'll term collateral restrictions due to, among other things, chilling effects. We're picking at semantics here - but I believe a first amendment violation must be a government action by which a particular form of speech is made a violation of the law and thus something that is, in itself, punishable by law. I don't see any way in which specifically the NSA's chilling effect somehow makes speech which otherwise would have been legal into a prosecutable offence. As for me misrepresenting your case: I'm anticipating a slippery slope down which your line of logic takes me... and since I see the first amendment as a much more cut-and-dry thing than due process, I express my fear that your line of argument would create a world where any and all government chilling effects are violations of the first amendment. I believe your original statement was to the effect of: "The NSA's surveillance was a first amendment violation because it caused a chilling effect on speech." So based on that sentence, why can't I insert some other chilling government action in place of "The NSA's surveillance?" Bottom line: I think you're over-stating your claim.

I also (at least earlier) questioned our cultural norms for expectation of privacy - but I recognize that's not particularly a legal commentary so much as commentary on our cultural expectations.

The chilling effects of NSA surveillance are empirically measurable. For instance, they are quantifiable changes in the way that information is accessed on the Internet, such as via Google search queries or Wikipedia page views. The notion that surveillance only chills illegal behavior is contradicted by empirical evidence.

My point is that I believe those empirically measurable chilling effects are a product of people's fear. In the case of the terrorist, rationally so. In the case of the innocent, (at some level) irrationally so. It illustrates the way that we are socially aware when we have a perceived audience - but it doesn't necessarily lead me to any conclusions about whether that's a good/bad/indifferent thing in and of itself. My case would be that people should live with nothing to hide. If people's activity behind closed doors (from a moral, ethical, and legal standpoint) matched their public activity, I'd generally count that as a good thing - though I'm not advocating taking action to make it so, but because I believe that people with secrets are worse off for them. In the case of internet usage, it goes back to my expectation of privacy comment: I don't think it's appropriate to expect privacy in your internet activities if you're not explicitly using encryption.

(Note: I think SSL has its own ironies with regard to privacy - because ultimately you're having to trust someone other than yourself to be an honest agent.)

[vision]

(Note: I think SSL has its own ironies with regard to privacy - because ultimately you're having to trust someone other than yourself to be an honest agent.)

Are you confusing the technology that makes an SSL or the bogus Certificate Authorities?

[Jeff250]

The distinction between the due process clause of the fourteenth amendment and the first amendment is still important to me. I wouldn't disagree with you if you had stated that the NSA's mass surveillance has serious due process implications. (I'll leave it to the lawyers to decide if it's indeed a violation, but it seems damning.) I think that what you say above is exactly why. To me, the first amendment is clearly about the writing of laws which restrict speech... while the due process (the fifth amendment as applied to the federal government, the fourteenth as applied to state governments.) is about what I'll term collateral restrictions due to, among other things, chilling effects. We're picking at semantics here - but I believe a first amendment violation must be a government action by which a particular form of speech is made a violation of the law and thus something that is, in itself, punishable by law.

The First Amendment prohibits even the abridgement of free speech by government action and regardless of whether the speech itself is punishable by law.

Lamont v. Postmaster General

We rest on the narrow ground that the addressee, in order to receive his mail, must request in writing that it be delivered. This amounts, in our judgment, to an unconstitutional abridgment of the addressee's First Amendment rights. The addressee carries an affirmative obligation which we do not think the Government may impose on him. This requirement is almost certain to have a deterrent effect, especially as respects those who have sensitive positions. Their livelihood may be dependent on a security clearance. Public officials like schoolteachers who have no tenure might think they would invite disaster if they read what the Federal Government says contains the seeds of treason. Apart from them, any addressee is likely to feel some inhibition in sending for literature which federal officials have condemned as "communist political propaganda."

Dombrowski v. Pfister

The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.

Appellants' allegations and offers of proof outline the chilling effect on free expression of prosecutions initiated and threatened in this case... These events, together with repeated announcements by appellees that the appellant organization is a subversive or Communist front organization, whose members must register or be prosecuted under the Louisiana statutes, have appellants allege, frightened off potential members and contributors.

As for me misrepresenting your case: I'm anticipating a slippery slope down which your line of logic takes me... and since I see the first amendment as a much more cut-and-dry thing than due process, I express my fear that your line of argument would create a world where any and all government chilling effects are violations of the first amendment. I believe your original statement was to the effect of: "The NSA's surveillance was a first amendment violation because it caused a chilling effect on speech." So based on that sentence, why can't I insert some other chilling government action in place of "The NSA's surveillance?" Bottom line: I think you're over-stating your claim.

Please stop intentionally mispresenting my argument. If someone said that "mass surveillance violates the Fourth Amendment because it violates someone's right to privacy," that shouldn't be taken to mean that *anything* that violates someone's privacy is a Fourth Amendment violation. For instance, a legal search of someone's house violates their privacy but is not a Fourth Amendment violation. That sentence should be taken to mean that one of the possible requirements of a Fourth Amendment violation has been satisfied. Now, specific to my claim in your quote, I've already told you I see no reason for why the criteria for chilling effects are different than any other kind of First Amendment violation, so I'm not going to defend your straw man because of something I said that I've already told you you are misinterpreting.

My point is that I believe those empirically measurable chilling effects are a product of people's fear. In the case of the terrorist, rationally so. In the case of the innocent, (at some level) irrationally so.

Innocent people who are self-censoring under surveillance aren't necessarily doing so because they are afraid of being successfully convicted of terrorism. When you are under government surveillance, there are other consequences in between that innocent people rationally fear. At a bare minimum, in a surveillance system, it is rational to expect that talking about sensitive topics will subject you to additional surveillance.

It illustrates the way that we are socially aware when we have a perceived audience - but it doesn't necessarily lead me to any conclusions about whether that's a good/bad/indifferent thing in and of itself. My case would be that people should live with nothing to hide. If people's activity behind closed doors (from a moral, ethical, and legal standpoint) matched their public activity, I'd generally count that as a good thing - though I'm not advocating taking action to make it so, but because I believe that people with secrets are worse off for them.

I think it's unfortunate that you don't value privacy, but I don't know if there's much I can do to convince you to value it if you don't already.

In the case of internet usage, it goes back to my expectation of privacy comment: I don't think it's appropriate to expect privacy in your internet activities if you're not explicitly using encryption.

Other than by government surveillance, why should I expect anyone but my recipient, my ISP and my recipient's ISP (including any intermediates) to be able to read my traffic?

[Spidey]

See that’s the whole problem, we sign contracts that literally give away our rights to privacy. UPS has the right to inspect packages because they may contain something dangerous…so why do we grant an ISP the right to inspect packets, and keep copies of them?

If there is some justification for spam and malware, then fine, but I fail to see any reason to keep copies, and give them all kinds of usage rights.

And no…an ISP does not have these rights based on some kind of generic need produced by the technology or such…we literally give them these rights.

[Sergeant Thorne]

It's easy to blame snowden for this sort of thing. He works as a good scapegoat.

Well said.

[snoopy]

Jeff: Note that both of your newly linked cases strike down laws - which is one of my points - laws violate the first amendment, not activities.

Please stop intentionally mispresenting my argument. If someone said that "mass surveillance violates the Fourth Amendment because it violates someone's right to privacy," that shouldn't be taken to mean that *anything* that violates someone's privacy is a Fourth Amendment violation. For instance, a legal search of someone's house violates their privacy but is not a Fourth Amendment violation. That sentence should be taken to mean that one of the possible requirements of a Fourth Amendment violation has been satisfied. Now, specific to my claim in your quote, I've already told you I see no reason for why the criteria for chilling effects are different than any other kind of First Amendment violation, so I'm not going to defend your straw man because of something I said that I've already told you you are misinterpreting.

But... the fourth amendment doesn't guarantee people privacy... it guarantees against unreasonable searches and seizures. If someone said "federal mass surveillance violates the Fourth Amendment because it is an unreasonable search" I certainly would interpret it to mean that all unreasonable searches violate the fourth amendment. Similarly, if the fourth amendment really did guarantee someone's "right to privacy" I'd interpret your original sentence to be inclusive.

Humor me... restate your case for federal mass surveillance meeting all of the requirements of a first amendment violation - because I must be missing something.

[Jeff250]

Jeff: Note that both of your newly linked cases strike down laws - which is one of my points - laws violate the first amendment, not activities.

Police departments, for instance, are regularly and successfully sued for First Amendment violations because all state actors are required to afford Constitutional rights.

But... the fourth amendment doesn't guarantee people privacy... it guarantees against unreasonable searches and seizures. If someone said "federal mass surveillance violates the Fourth Amendment because it is an unreasonable search" I certainly would interpret it to mean that all unreasonable searches violate the fourth amendment. Similarly, if the fourth amendment really did guarantee someone's "right to privacy" I'd interpret your original sentence to be inclusive.

Let's simplify this and with something you'll find less controversial. If I said that I ate a large breakfast because I was really hungry, that doesn't mean that every time I'm really hungry I eat a large breakfast. The sentence simply cannot be construed as exhaustively identifying every possible case for which I will and will not eat a large breakfast. It just identifies the most relevant reason in this case.

Humor me... restate your case for federal mass surveillance meeting all of the requirements of a first amendment violation - because I must be missing something.

Specifically, which requirements would you still like me to address?

[snoopy]

Specifically, which requirements would you still like me to address?

Express your argument as a cohesive whole - why is this surveillance a first amendment violation? Specifically, give me a statement for which any object would be a first amendment violation if it were accurately described by your statement - [object] is a first amendment violation because [exhaustive conditions], where the exhaustive conditions apply to our immediate object which is federal mass surveillance. I know you (maybe) feel you've already provided this, but I'm having trouble piecing it together.

(By the way, you don't need to link to wikipedia articles about the terms that you're using... if I don't understand what the terms are, I'm capable of going and looking them up myself.)

[Jeff250]

Express your argument as a cohesive whole - why is this surveillance a first amendment violation? Specifically, give me a statement for which any object would be a first amendment violation if it were accurately described by your statement - [object] is a first amendment violation because [exhaustive conditions], where the exhaustive conditions apply to our immediate object which is federal mass surveillance.

Ha, if I (or anyone) could do this, then we wouldn't really need a Supreme Court, right?

[snoopy]

Express your argument as a cohesive whole - why is this surveillance a first amendment violation? Specifically, give me a statement for which any object would be a first amendment violation if it were accurately described by your statement - [object] is a first amendment violation because [exhaustive conditions], where the exhaustive conditions apply to our immediate object which is federal mass surveillance.

Ha, if I (or anyone) could do this, then we wouldn't really need a Supreme Court, right?

....Then you have no justification for claiming that there's a connection between the two. (Also, a correction - I don't think you need exhaustive conditions - you only need sufficient conditions.)

I think the Supreme Court's job would be to judge whether or not your argument is correct or not... not to make your argument for you.

Either way, I'm asking for something clear because every time I try to characterize your argument, you claim that I misrepresent it; yet you also assert that you've made your case. Since I can't seem to correctly pin down your argument, and since you don't want to cede that I have a point, we (I) need some clarity on exactly what your justification for your point is. As we currently stand it appears that you claim not to be wrong, but neither do we (may I? If someone is following the argument and wants to enlighten me, have at it) have enough upon which to establish any judgement on whether you're right. It's starting to seem to me like your goal is to avoid being wrong, as opposed to demonstrating why we should think that you're right.

[Jeff250]

I still won't enumerate the conditions for which anything could be a First Amendment violation because I don't have to in order to show that one thing is (and it would be impossible anyways). However, you should hopefully find it sufficient for me to summarize my argument for why NSA mass surveillance violates the First Amendment: The NSA are state actors. State actors are required to afford First Amendment rights. Performing a Google search for and reading Wikipedia pages on sensitive and controversial topics are constitutionally protected speech. NSA mass surveillance deters this sensitive and controversial speech. Under the chilling effects doctrine, when people are reasonably deterred from protected speech through the indirect result of government action, then this is itself a First Amendment violation. None of the commonly held exceptions apply here such as overriding state interest because the same information could be acquired through less broad techniques and because what we know about the surveillance programs shows that they are completely ineffective anyways. Therefore, NSA mass surveillance violates the First Amendment.

[vision]

That about sums it up as succinctly as I can imagine. The fact that upwards of 86% of Internet users employed some sort of extra privacy feature for their browsing habits is proof enough for me that the public wants on-line privacy and the chilling effect is real. (Hint: It's not because of porn, that's been on-line for decades.)

[snoopy]

We're just going to have to agree to disagree at this point.

The NSA are state actors.

agree

State actors are required to afford First Amendment rights.

Disagree - State law and the enforcement thereof are required to afford first amendment rights. State actors are required to afford fifth & fourteenth amendment rights.

Performing a Google search for and reading Wikipedia pages on sensitive and controversial topics are constitutionally protected speech.

agree

NSA mass surveillance deters this sensitive and controversial speech.

agree

Under the chilling effects doctrine, when people are reasonably deterred from protected speech through the indirect result of government action, then this is itself a First Amendment violation.

Disagree. There are many forms of protected speech which are, in fact, deterred by effect of government action which are not first amendment violations. My easiest example: self-incrimination in the presence of a law enforcement officer. Self-incrimination is a form of protected speech, a law enforcement officer is a government actor, and a chilling effect most certainly results when a person chooses not to self-incriminate in the officer's presence.

None of the commonly held exceptions apply here such as overriding state interest

In fact, I don't think "overriding state interest" should be a valid exemption - really the only exemption I'm okay with is protection of people and property from immediate harm.

because the same information could be acquired through less broad techniques and because what we know about the surveillance programs shows that they are completely ineffective anyways.

Irrelevant. Violation of the constitution isn't a function of an action's effectiveness.

Therefore, NSA mass surveillance violates the First Amendment.

I think you need more to establish sufficiency than chilling effects due to government action... I think you need chilling effects due to government law. (or the [mis]enforcement thereof.) I also think the "due process" is more of a moving target, and can be violated as a result of chilling effects due to government action.

[Lothar]

As an aside: Encryption is necessary for protecting your privacy, but unfortunately it is also insufficient, and using it I think can lull one into a false sense of security, as it only protects your data, not your metadata

As a followup to this aside, if you haven't seen http://kieranhealy.org/blog/archives/20 ... ul-revere/ , it makes the point quite well.

And it's not just politics where this sort of metadata could be used to harm someone. I've seen studies (I don't presently have the links) showing that it's fairly easy to "out" homosexuals, or people who question the religion they grew up in, through similar metadata. An NSA with a personal vendetta could potentially be very dangerous to certain people.

[Jeff250]

As a followup to this aside, if you haven't seen http://kieranhealy.org/blog/archives/20 ... ul-revere/ , it makes the point quite well.

Haha, amazingly demonstrated!

We're just going to have to agree to disagree at this point.

It depends in what sense you're disagreeing. If you're disagreeing with me in how you think the Constitution ought to be interpreted, then OK, you can have your own set of opinions on that. But if you're disagreeing with me about how the courts have historically interpreted the Constitution, then no, you don't get to have your set of opinions on that.

Disagree - State law and the enforcement thereof are required to afford first amendment rights. State actors are required to afford fifth & fourteenth amendment rights.

This is confusing--isn't enforcement of the law exactly what NSA surveillance is purportedly for, and thus would fall under your umbrella anyways? In any case, the state action requirement doesn't only apply to law enforcement. Schools, for instance, are also the repeated target of successful First Amendment lawsuits. There's no complex rubric of which rights are afforded by which state actors--they're all afforded by all state actors.

Disagree. There are many forms of protected speech which are, in fact, deterred by effect of government action which are not first amendment violations. My easiest example: self-incrimination in the presence of a law enforcement officer. Self-incrimination is a form of protected speech, a law enforcement officer is a government actor, and a chilling effect most certainly results when a person chooses not to self-incriminate in the officer's presence.

And this is answered by my next sentence that you left out of the quote:

"None of the commonly held exceptions apply here such as overriding state interest because the same information could be acquired through less broad techniques and because what we know about the surveillance programs shows that they are completely ineffective anyways."

In other words, the courts have recognized different exceptions (but none of them apply to NSA mass surveillance).

Irrelevant. Violation of the constitution isn't a function of an action's effectiveness.

It is relevant to the "overriding state interest" exception to which I was referring. How compelling can the state's interest be if their actions here are ultimately ineffective?