11 ms·

DC appeals court lifts injunction against NSA phone records program

167 points by Clanan 11y ago

disposition2 11y ago
Didn't the NSA delay sunsetting the program for a few months (because it was a legal option given to them by the court)? Convenient that this injunction occurred before the sunset date. Once again disappointed to see the court side against the 4th Amendment. Edit: and this is rather unfortunate... 'It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead "what the citizen may know."' Edit 2: nevermind that the entire states secret clause that the courts are so often to back up is based on the government trying to save face and not admit wrong-doing.
- ksherlock 11y ago
  The district court opined that the bulk collection was not authorized by law, so the NSA was acting illegally (but ignored whether it was constitutional or not). The FISA court ignored that and said they still have 180 days to bulk collect, per the so-called 6/2/2015 Freedom Act.
- YoureWrong 11y ago
  > 'It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead "what the citizen may know."' If secrecy is another form of regulation, then any such regulations must be subservient to the fact that a citizen is entitled to due process and to protection against their affects being seized. This means that the government asserting state secret to block the judicial review of a case about them failing to uphold the constitution is a breach of the constitution, and subservient regulations like state secrecy must be set aside to uphold constitutional obligations. Or at least, that's what my lawyer would probably say on appeal.
pdabbadabba 11y ago
Tl;dr: The plaintiffs/petitioners presented only a tenuous case that their records were actually collected, which reduced their perceived likelihood of success on the ultimate merits of the case enough that they were not entitled to a preliminary injunction. Let's unpack that a little bit. This is not a final ruling on the merits of the case, and it does not have anything (directly) to do with the 4th Amendment. Plaintiffs had moved for a preliminary injunction before the district court that would have stopped the program well before the ultimate outcome of the case. For obvious reasons, the standard for evaluating such requests is high. One of several factors used for evaluating such a motion is likelihood of ultimate success of the merits. In order for plaintiffs to ultimately succeed, they have to convince the court that they have actually suffered an injury by having their own call records collected. They need to have been injured in order for the court ultimately to have jurisdiction. At this point, the DC Circuit concluded that they do not have any specific evidence of this (and, in fact, some of the indirect evidence weighs against them). So, the DC Circuit concluded that they were not so likely to ultimately succeed that it should give them the injunction they wanted before the ultimate outcome of the case. This is not a good sign for a plaintiffs' case, but its important to emphasize that this is an early look at it with, necessarily, the benefit of only a small amount of evidence. The case will continue in the district court which will, among other things, try to determine whether the plaintiffs were actually injured. Of course, the predictable outcome of that inquiry is that the NSA will invoke various legal privileges against disclosing the evidence necessary to actually make a determination, ultimately rendering plaintiffs' case impossible to maintain.
- packersville 11y ago
  > In order for plaintiffs to ultimately succeed, they have to convince the court that they have actually suffered an injury by having their own call records collected. Are you able to demonstrate the breaching of the 4th Amendment ? Or there just has to be some sustained injury presented before the courts?
  - pdabbadabba 11y ago
    I'm not a 4th Amendment expert, but I believe the beach of privacy inherent in a substantiated 4th Amendment violation is itself a sufficient injury to support standing.
peterkelly 11y ago
From page 3: > "NSA may access it only after demonstrating to the FISC that a 'reaonable articulable suspicion' that a particular phone number is associated with a foreign terrorist organization'". Shouldn't this say "associated with a foreign terrorist organisation, or the UN"? http://www.theguardian.com/world/2015/aug/17/un-att-nsa-spy-headquarters-privacy http://www.theguardian.com/world/2015/aug/17/un-att-nsa-spy-...
- Roodgorf 11y ago
  I'm sure you could find a few people in the U.S. that would consider the U.N. a foreign terrorist organisation.
  - sliverstorm 11y ago
    I know more than a few U.S. citizens who consider the U.S. Government a foreign terrorist organization. So yes, I believe you.
- mtgx 11y ago
  And I thought the NSA wasn't supposed to lie. When it says "only used to track a terrorist organization" or whatever, they are essentially lying. At the very least they should use words such as "and for other purposes". But this is what we get when Clapper gets to lie and nothing happens to him (or when no one ever gets punished for abuses). The criminality of the system continues and expands - because why wouldn't it?
  - sillygeese 11y ago
    Yes, the system is working very much as intended: http://popehat.com/2013/12/23/burn-the-fucking-system-to-the-ground/ http://popehat.com/2013/12/23/burn-the-fucking-system-to-the... If governments were actually useful to us, they wouldn't have to take our money by force. We'd be happy to pay for their services voluntarily. That tells you everything you need to know about the system's nature.
    - 11y ago
graiz 11y ago
Does a plaintiff need to suffer injury if their constitutional rights were violated? Wouldn't this be closer to a class action since there's broad injury and violation?
- pdabbadabba 11y ago
  > Does a plaintiff need to suffer injury if their constitutional rights were violated? Yes, they do. Even in a class action the class plaintiffs need to be able to show that they were injured. This stems from longstanding judicial interpretation of the "case or controversy" clause of Article III of the U.S. Constitution. https://en.wikipedia.org/wiki/Case_or_Controversy_Clause https://en.wikipedia.org/wiki/Case_or_Controversy_Clause
  - jsprogrammer 11y ago
    The US constitution allows for the people to petition the government for a redress of grievances. No monetary injury required.
    - pdabbadabba 11y ago
      Article III specifically defines the powers of the judiciary, and these powers do not include hearing petitions. It's an interesting question what substance the Petition Clause has. Unfortunately, it looks these days like it doesn't have much, since the First Amendment has never been interpreted to give petitions any binding legal effect. But I think it is clearly correct that the judicial branch, at least, does not have the power to adjudicate them under Article III. Edit: By the way, an 'injury' does not necessarily have to be a monetary injury to support standing, though the law about what sorts of injuries count is exceedingly difficult and, perhaps, incoherent at the margins. One interesting wrinkle is that courts assume a fairly concrete definition of "injury", but also permit Congress to expand the applicable conception of injury (within some limits) in particular situations by statute. Lujan v. Defenders of Wildlife is a good entry point to this area of law, https://www.law.cornell.edu/supremecourt/text/504/555 https://www.law.cornell.edu/supremecourt/text/504/555 (I do not think that the opinion itself is very good, but its discussion of other cases is helpful.) Edit: Removed an imprecise first sentence.
AdmiralAsshat 11y ago
So under what circumstances, according to the court, can a citizen actually claim injury from such a program?
- pdabbadabba 11y ago
  One can only make an educated guess, but I think there are a few possibly easy cases: 1. Documents are leaked that specifically identify one or people whose records were illegally collected. Those people probably could sue, I would think. 2. Documents are leaked (or evidence otherwise emerges) that the NSA collected data on virtually all of a particular company's calls. Subscribers to that service would probably have a good case for standing. Bear in mind, though, that we're only at the preliminary injunction stage. The review at this stage will typically take a pessimistic view of plaintiffs' ability to prevail on issues like this if there is substantial uncertainty. It's possible they could lose on the injunction, but ultimately win on the merits.
  - nitrogen 11y ago
    Wasn't one of the first Snowden documents basically #2 for Verizon?
    - pdabbadabba 11y ago
      I honestly don't know. What document do you have in mind?
      - nitrogen 11y ago
        The one that requested call metadata from all Verizon (business?) customers.
  - disposition2 11y ago
    Couldn't the government just say whatever documents presented were obtained illegally or are 'state secrets'?
Allower 11y ago
Someone needs to doxx these fuckers
- kinghajj 11y ago
  Someone needs to get a death prediction market implemented. That should sway politicians' incentives pretty quickly.
TallGuyShort 11y ago
This all seems rather academic. Is there any reason to be reasonably sure the NSA wouldn't just do it regardless of what a judge said?
- naringas 11y ago
  > Is there any reason to be reasonably sure the NSA wouldn't just do it regardless of what a judge said? Why would they have to disobey the judge if they can make the court say what they need?
  - TallGuyShort 11y ago
    Yeah I can see why it's a nice-to-have for them. I'm just saying they're pretty clearly above the law for all intents and purposes. I wouldn't consider the opposite result here a real win for freedom.
    - DanielBMarkham 11y ago
      The best result, given the situation they're in right now, is to accept defeat. Put up a bit of a struggle, have some media drama, have some politicians make speeches, get a couple of laws passed, heck, maybe even come out with a begrudging mea culpa. Then make sure the legal opinion isn't actually binding in the way the general public thinks it is, that the law has plenty of non-obvious loopholes, and continue on as if nothing has happened. In their mind, they don't have a legality problem; they have a security leak problem. I honestly believe they'll keep it all legal -- but good luck in figuring out exactly what "legal" means.
- DanielBMarkham 11y ago
  None whatsoever.
- cryoshon 11y ago
  This is how we know we've crossed the Rubicon regarding government spying. We don't expect them to stop spying, even if they're "legally" required to stop, and spying on us is made "illegal". We have zero faith in their word, and that was theirs to lose!
DannyBee 11y ago
For those of you who want to argue about standing here, your argument is with the supreme court, not the lower courts :) http://www.scotusblog.com/case-files/cases/clapper-v-amnesty-international-usa/ http://www.scotusblog.com/case-files/cases/clapper-v-amnesty...
Floegipoky 11y ago
Has anyone tried to use probability to cut through this cloud of bullshit that the government keeps spewing about the plaintiffs not being able to prove that their records were collected? If you put 100,000 names on that lawsuit, there's no way they can say that none of them got caught in the dragnet.
deleted 11y ago
[deleted]

167 points by Clanan 11y ago

Didn't the NSA delay sunsetting the program for a few months (because it was a legal option given to them by the court)? Convenient that this injunction occurred before the sunset date. Once again disappointed to see the court side against the 4th Amendment. Edit: and this is rather unfortunate... 'It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead "what the citizen may know."' Edit 2: nevermind that the entire states secret clause that the courts are so often to back up is based on the government trying to save face and not admit wrong-doing.

ksherlock 11y ago
The district court opined that the bulk collection was not authorized by law, so the NSA was acting illegally (but ignored whether it was constitutional or not). The FISA court ignored that and said they still have 180 days to bulk collect, per the so-called 6/2/2015 Freedom Act.
YoureWrong 11y ago
> 'It is entirely possible that, even if plaintiffs are granted discovery, the government may refuse to provide information (if any exists) that would further plaintiffs’ case. Plaintiffs’ claims may well founder in that event. But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not “what the citizen may do” but instead "what the citizen may know."' If secrecy is another form of regulation, then any such regulations must be subservient to the fact that a citizen is entitled to due process and to protection against their affects being seized. This means that the government asserting state secret to block the judicial review of a case about them failing to uphold the constitution is a breach of the constitution, and subservient regulations like state secrecy must be set aside to uphold constitutional obligations. Or at least, that's what my lawyer would probably say on appeal.

pdabbadabba 11y ago

Tl;dr: The plaintiffs/petitioners presented only a tenuous case that their records were actually collected, which reduced their perceived likelihood of success on the ultimate merits of the case enough that they were not entitled to a preliminary injunction. Let's unpack that a little bit. This is not a final ruling on the merits of the case, and it does not have anything (directly) to do with the 4th Amendment. Plaintiffs had moved for a preliminary injunction before the district court that would have stopped the program well before the ultimate outcome of the case. For obvious reasons, the standard for evaluating such requests is high. One of several factors used for evaluating such a motion is likelihood of ultimate success of the merits. In order for plaintiffs to ultimately succeed, they have to convince the court that they have actually suffered an injury by having their own call records collected. They need to have been injured in order for the court ultimately to have jurisdiction. At this point, the DC Circuit concluded that they do not have any specific evidence of this (and, in fact, some of the indirect evidence weighs against them). So, the DC Circuit concluded that they were not so likely to ultimately succeed that it should give them the injunction they wanted before the ultimate outcome of the case. This is not a good sign for a plaintiffs' case, but its important to emphasize that this is an early look at it with, necessarily, the benefit of only a small amount of evidence. The case will continue in the district court which will, among other things, try to determine whether the plaintiffs were actually injured. Of course, the predictable outcome of that inquiry is that the NSA will invoke various legal privileges against disclosing the evidence necessary to actually make a determination, ultimately rendering plaintiffs' case impossible to maintain.

packersville 11y ago
> In order for plaintiffs to ultimately succeed, they have to convince the court that they have actually suffered an injury by having their own call records collected. Are you able to demonstrate the breaching of the 4th Amendment ? Or there just has to be some sustained injury presented before the courts?
- pdabbadabba 11y ago
  I'm not a 4th Amendment expert, but I believe the beach of privacy inherent in a substantiated 4th Amendment violation is itself a sufficient injury to support standing.

peterkelly 11y ago

From page 3: > "NSA may access it only after demonstrating to the FISC that a 'reaonable articulable suspicion' that a particular phone number is associated with a foreign terrorist organization'". Shouldn't this say "associated with a foreign terrorist organisation, or the UN"? http://www.theguardian.com/world/2015/aug/17/un-att-nsa-spy-headquarters-privacy http://www.theguardian.com/world/2015/aug/17/un-att-nsa-spy-...

Roodgorf 11y ago
I'm sure you could find a few people in the U.S. that would consider the U.N. a foreign terrorist organisation.
- sliverstorm 11y ago
  I know more than a few U.S. citizens who consider the U.S. Government a foreign terrorist organization. So yes, I believe you.
mtgx 11y ago
And I thought the NSA wasn't supposed to lie. When it says "only used to track a terrorist organization" or whatever, they are essentially lying. At the very least they should use words such as "and for other purposes". But this is what we get when Clapper gets to lie and nothing happens to him (or when no one ever gets punished for abuses). The criminality of the system continues and expands - because why wouldn't it?
- sillygeese 11y ago
  Yes, the system is working very much as intended: http://popehat.com/2013/12/23/burn-the-fucking-system-to-the-ground/ http://popehat.com/2013/12/23/burn-the-fucking-system-to-the... If governments were actually useful to us, they wouldn't have to take our money by force. We'd be happy to pay for their services voluntarily. That tells you everything you need to know about the system's nature.
  - 11y ago

graiz 11y ago

Does a plaintiff need to suffer injury if their constitutional rights were violated? Wouldn't this be closer to a class action since there's broad injury and violation?

pdabbadabba 11y ago
> Does a plaintiff need to suffer injury if their constitutional rights were violated? Yes, they do. Even in a class action the class plaintiffs need to be able to show that they were injured. This stems from longstanding judicial interpretation of the "case or controversy" clause of Article III of the U.S. Constitution. https://en.wikipedia.org/wiki/Case_or_Controversy_Clause https://en.wikipedia.org/wiki/Case_or_Controversy_Clause
- jsprogrammer 11y ago
  The US constitution allows for the people to petition the government for a redress of grievances. No monetary injury required.
  - pdabbadabba 11y ago
    Article III specifically defines the powers of the judiciary, and these powers do not include hearing petitions. It's an interesting question what substance the Petition Clause has. Unfortunately, it looks these days like it doesn't have much, since the First Amendment has never been interpreted to give petitions any binding legal effect. But I think it is clearly correct that the judicial branch, at least, does not have the power to adjudicate them under Article III. Edit: By the way, an 'injury' does not necessarily have to be a monetary injury to support standing, though the law about what sorts of injuries count is exceedingly difficult and, perhaps, incoherent at the margins. One interesting wrinkle is that courts assume a fairly concrete definition of "injury", but also permit Congress to expand the applicable conception of injury (within some limits) in particular situations by statute. Lujan v. Defenders of Wildlife is a good entry point to this area of law, https://www.law.cornell.edu/supremecourt/text/504/555 https://www.law.cornell.edu/supremecourt/text/504/555 (I do not think that the opinion itself is very good, but its discussion of other cases is helpful.) Edit: Removed an imprecise first sentence.

AdmiralAsshat 11y ago

So under what circumstances, according to the court, can a citizen actually claim injury from such a program?

pdabbadabba 11y ago
One can only make an educated guess, but I think there are a few possibly easy cases: 1. Documents are leaked that specifically identify one or people whose records were illegally collected. Those people probably could sue, I would think. 2. Documents are leaked (or evidence otherwise emerges) that the NSA collected data on virtually all of a particular company's calls. Subscribers to that service would probably have a good case for standing. Bear in mind, though, that we're only at the preliminary injunction stage. The review at this stage will typically take a pessimistic view of plaintiffs' ability to prevail on issues like this if there is substantial uncertainty. It's possible they could lose on the injunction, but ultimately win on the merits.
- nitrogen 11y ago
  Wasn't one of the first Snowden documents basically #2 for Verizon?
  - pdabbadabba 11y ago
    I honestly don't know. What document do you have in mind?
    - nitrogen 11y ago
      The one that requested call metadata from all Verizon (business?) customers.
- disposition2 11y ago
  Couldn't the government just say whatever documents presented were obtained illegally or are 'state secrets'?

Allower 11y ago

Someone needs to doxx these fuckers

kinghajj 11y ago
Someone needs to get a death prediction market implemented. That should sway politicians' incentives pretty quickly.

TallGuyShort 11y ago

This all seems rather academic. Is there any reason to be reasonably sure the NSA wouldn't just do it regardless of what a judge said?

naringas 11y ago
> Is there any reason to be reasonably sure the NSA wouldn't just do it regardless of what a judge said? Why would they have to disobey the judge if they can make the court say what they need?
- TallGuyShort 11y ago
  Yeah I can see why it's a nice-to-have for them. I'm just saying they're pretty clearly above the law for all intents and purposes. I wouldn't consider the opposite result here a real win for freedom.
  - DanielBMarkham 11y ago
    The best result, given the situation they're in right now, is to accept defeat. Put up a bit of a struggle, have some media drama, have some politicians make speeches, get a couple of laws passed, heck, maybe even come out with a begrudging mea culpa. Then make sure the legal opinion isn't actually binding in the way the general public thinks it is, that the law has plenty of non-obvious loopholes, and continue on as if nothing has happened. In their mind, they don't have a legality problem; they have a security leak problem. I honestly believe they'll keep it all legal -- but good luck in figuring out exactly what "legal" means.
DanielBMarkham 11y ago
None whatsoever.
cryoshon 11y ago
This is how we know we've crossed the Rubicon regarding government spying. We don't expect them to stop spying, even if they're "legally" required to stop, and spying on us is made "illegal". We have zero faith in their word, and that was theirs to lose!

DannyBee 11y ago

For those of you who want to argue about standing here, your argument is with the supreme court, not the lower courts :) http://www.scotusblog.com/case-files/cases/clapper-v-amnesty-international-usa/ http://www.scotusblog.com/case-files/cases/clapper-v-amnesty...

Floegipoky 11y ago

Has anyone tried to use probability to cut through this cloud of bullshit that the government keeps spewing about the plaintiffs not being able to prove that their records were collected? If you put 100,000 names on that lawsuit, there's no way they can say that none of them got caught in the dragnet.

deleted 11y ago

[deleted]