Presumed Guilty

In the justice system of the US the individual is presumed innocent until proven guilty.  There is a system of law built on that assumption and its framework requiring requests to seek personal information on individuals under criminal investigation is encoded into the US Constitution in the Bill of Rights:

Amendment IV

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.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment IV sets up the Judicial Branch as the one to authorize Warrants as the Executive Branch is the one doing the work of enforcing the law and cannot be said to be disinterested in a case, thus requiring a third party to adjudicate the request.  The Legislative can't do that as it only makes the law, and the Executive is the enforcer of it, so by default it is the Judicial Branch that does that work.  What you do in your life, what things you get and how you get them are thusly protected from government scrutiny because you are presumed innocent of any crime to start with.

Amendment V puts in place the requirement of due process of law, which means that the steps of collecting evidence, going to a Judge for a Warrant, and then proceeding through a trial is required and guilt ascertained before any penalty may be put in place by government on an individual.  Amendment IV creates the process of required collection only after suspicion of criminal conduct is raised, and then evidence gathering after that via the Warrant process.  That is the due process of law and it is sustained by Amendment V.

Amendment VI sets up the requirement that all information collected by law enforcement on an individual in a criminal proceeding be handed over to that individual and those representing his defense in court.  Also the defendant can call witnesses including those who have done the collecting and analyzing of data as that is part and parcel of the evidence itself.  With that the due process of law is given a final safeguard to allow a defendant to see exculpatory data, examine the process used to gather the data and see if any of their fundamental rights were violated in its collection.  That isn't just to keep law enforcement in line, but to allow the innocent a chance to demonstrate that the prosecution was not thoroughly done and that they have the wrong person involved.

Got it?

Suspicion of criminality.

Collection of data.

Required intercession of a Judge for Warrants to examine personal property and how it is acquired.

Charges put against an individual in open court.

Handing over all collected evidence and allowing the process of discovery to be a two-way street so that the investigators can be put under scrutiny as well.

Counsel to assist in aiding the defense of the accused.

Trial by Jury.

A process made to safeguard your rights and liberty.

Now fast forward to PRISM, NSA and its massive data collection storehouse in Utah.  A place that is set up to gather as much information as possible, and it does not respect borders and collects everything.  Yes the NSA is collecting data on you, too, and if you are lucky it will just sit on a disc in an array in UT... until some bureaucrat gets a Warrant to investigate you.

Notice what has just happened?

By pre-collecting data you are now Presumed Guilty of a crime.  This is the tool of an authoritarian if not totalitarian State seeking to have its own way with individuals by having necessary records to accuse individuals of activities that are unlawful.  Are you violating the law?

Take a look at the list of federal regulations.  Since the start of the Regulatory State, back in the early part of the 20th century, agencies/departments with Congressionally authorized power to make and enforce regulations have blossomed to go into every corner of daily activity.  From the car you drive to the food you eat to the medications you take to the bed you sleep on: all of that is gist for the regulatory mill of fines, penalties and investigation.  On any given day you are in violation of dozens of federal regulations just by using common sense to live your life, and with the extension of federal power into banking, commerce, investments and a plethora of other areas, your chance of being a criminal jumps by leaps and bounds.  It is worth checking out Glenn Reynolds' latest paper on this topic to see how bad it is: Ham Sandwich Nation: Due Process When Everything is a Crime.

If you are presumed guilty that means that your personal expectation of privacy is out the window... say, as a side light, those supporting this set-up cannot be for Roe v. Wade as it supports a personal right to privacy under a framework of law that requires collection of evidence to start at suspicion of wrong-doing, not beforehand.  By trying to pin privacy to 'emanations' and 'penumbras' and not to Amendment IX and X, the SCOTUS has set up the overturning of privacy rights as a Judicial feature that can be undone with a single gavel.  Isn't that sweet?  If you are pro-information collection State you are against Roe v. Wade.  Ah, what a tangled web they weave, no?

Back to the presumption of innocence being overturned by pre-collection of data.  The system described in the Bill of Rights is a hard one and puts the onus of hard work on the State, not the individual.  The State must figure out if you have committed a crime, it must show evidence that points to this, it must do the gumshoe work of collecting data de novo (which is to say afresh, although past convictions will stick to you like glue), process the evidence and then actually go to a public court to bring charges.  This is not an unburdened system and it is the burdening that protects your individual rights.  Want a Police State?  Make it easy to get data on people!

Here is a bit from an article at The Week:

Armed with what amounts to a rubber stamp court order, however, the NSA can collect and store trillions of bytes of electromagnetic detritus shaken off by American citizens. In the government’s eyes, the data is simply moving from one place to another. It does not become, in the government’s eyes, relevant or protected in any way unless and until it is subject to analysis. Analysis requires that second order.

The court in question, BTW, is a FISA court, not a public court and it is a panel of Judges, not one with a sole jurisdiction involved.  Their proceedings remain secret and are never published so you can't find out what the NSA has been doing.  This is where the rubber hits the road and do note that over collection and pre-collection is a feature, not a bug of this system.  Government has already collected your data, so all it requires is a bit of judge shopping by DoJ to get that information released, like AG Holder did with the multiple investigations into journalists from AP, FOX and CBS.  Get a judge willing to let you do the dirty deed (and at the federal level you can have a large choice of jurisdictions as a prosecutor and even judges within a jurisdiction) and then just hit up the NSA for its pre-gathered evidence.

From a Politico story on this we get this:

And Rep. Aaron Schock (R-Ill.) told POLITICO that the classified intelligence briefing sessions he’s attended haven’t disclosed details on the two data-gathering programs as were unveiled this week.

Schock, in Congress since 2009, said he had “no idea” about the phone data gathering, or any briefings for House members to discuss it, until news reports this week.

Like other members who said they learned of the data-gathering efforts when they were revealed in the Guardian and the Washington Post, Schock said the administration classified briefings he’s attended have revealed very little information.

“I can assure you the phone number tracking of non-criminal, non-terrorist suspects was not discussed,” he said. “Most members have stopped going to their classified briefings because they rarely tell us anything we don’t already know in the news. It really has become a charade.”

Well if you see everyone as potentially violating federal laws and regulations, then the idea of 'non-criminal suspects' flies out the window as there are none.  The prejudice in the system of pre-collection goes to full fruit at this point and the burden of demonstrating innocence now falls to those being investigated.  And as it isn't just DoJ that has policing powers, as DHS, EPA, and multiple other agencies/departments have shown, the NSA now gets to serve as a central point of common information and maybe even the coordinator between agencies for sharing information as it has this lovely pre-collection warehouse to store all of that lovely agency/department data for use by others.  Isn't that grand? 

And since terrorists use narcotics trafficking, white slavery, trafficking in illegal gems or semi-precious stones, etc. to do their deeds, and that has an environmental impact, particularly in parks along the porous borders, the pre-justification for collecting that data into a single storehouse is now evident.  Instead of separate and defined jurisdictions and powers, the technology creates a single system with the complete set of governmental powers to wield against an individual based on any infraction of any regulation that no human can be expected to know and requires an automated system to just catalog it.

Who knows if you are violating any of those laws, rules and regulations covering a vast array of separate domains?  You certainly can't say if you are or not because you don't know them all and you can't know them all.

The very first thing authoritarian to totalitarian systems do is put in place a system of justice whereby you are presumed guilty.  Add in layers of unknowable law, secret courts without well defined jurisdiction, judge shopping across known jurisdictions and within known jurisdictions and all you need is one magic 'go ahead and get them', turn the key to the NSA storehouse, and within hours you can be getting summons for taking that tag off your mattress, using marine gas to fill up your car, using a detergent additive with too much phosphate... and if you don't give in or even know how to respond, well, it only starts with fines.  Soon jail time starts to get put in as you are a serial abuser of the system, donchyaknow?

And do note that with Obamacare your medical records, what you take and who you've seen are also part of that.  Be hell to get stuck in an audit with the IRS asking you about the cost of your recent colonoscopy and wanting pictures, now, wouldn't it?  Just ask Tea Partiers and patriotic groups about that sort of scrutiny with just the current IRS.  Oh, they have police powers, too, as part of Treasury.  Isn't that swell?

Your safeguard against such a condition?

The presumption of innocence.

The goal of any tyrannical or despotic State?

Presumption of Guilt.

It is shown not in what they say, but in what they do.

And the pre-collection and storage of data demonstrates that they operate on a Presumption of Guilt, not one of Innocence.