7 ms·

Tl;dr: The plaintiffs/petitioners presented only a tenuous case that their records were actually collected, which reduced their perceived likelihood of success

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.
jdp23 11y ago
Marcy Wheeler has more in a pair of posts on Emptywheel. - one of the three judges said that the plaintiff didn't have standing because there wasn't explicit evidence that the government was collecting data from Verizon Wireless. [In a followup post, Marcy notes that a recent IG report (obtained by Charlie Savage of the NY Times via a FOIA suit) does explicitly include Verizon Wireless in a list; but this information probably wasn't known in time to include it in arguments in this suit.] - another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection - and the third said that the plaintiffs "barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction" https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-judge-leon-order-overturning-phone-dragnet/ https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-ju... https://www.emptywheel.net/2015/08/28/government-recently-released-information-proving-larry-klayman-has-standing/ https://www.emptywheel.net/2015/08/28/government-recently-re...
- mtgx 11y ago
  This "no standing" argument is really starting to piss me off. Are the judges blind to all the media releases in the past two years, or just pretending to be? > - another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection Ugh. Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!
  - Lawtonfogle 11y ago
    Does the 1st Amendment say 'except for obscenity'? Does the 2nd say 'except for criminals'? We've long ago tossed out the Constitution and have since just been playing pretend.
    - schoen 11y ago
      The Supreme Court's interpretation of the first amendment has gotten much more protective of speech over the last couple of centuries.
sillygeese 11y ago
> 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. So let's see.. Because a person can't prove to the government that the government is violating its own rules, the government decides that the person doesn't actually have a case, even though everyone knows the government is spying on everyone, and thus violating its own rules. Rright. So even if the government decided the case against itself, i.e. forbade itself from spying on everyone, why would anyone think they'd actually curtail their spying activities? If a wolf had been eating sheep left and right, and suddenly declared he'll stop doing that because eating sheep is Ba-a-a-ad, would the sheep have reason to believe he'd actually stop? Eating sheep is in the wolf's nature, and he's never had a problem with it before, so why would he stop? It would serve the wolf's interests to distract/placate the sheep though, so that they'd be easier to eat!
- tedunangst 11y ago
  Try, if you can, to imagine that the government is not a single monolithic entity. Or you could just go through your comment and replace every instance of "government" with "people" for all the sense that would make.
  - jessaustin 11y ago
    There really is a difference between NSA staff and the average American. For that matter, there is also a difference between a federal judge and the average American. This "well next time be sure to vote for a good candidate!" horseshit is tiresome. [EDIT:] Apparently this is not clear to everyone, but there is a logical difference between the proposition that two sets differ in some salient respect (e.g. that only those in the NSA may "illegally" spy on other Americans, with impunity), and the proposition that they differ in every respect. A careful reading of the previous paragraph will reveal that I have claimed the former.
    - tedunangst 11y ago

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.

jdp23 11y ago

Marcy Wheeler has more in a pair of posts on Emptywheel. - one of the three judges said that the plaintiff didn't have standing because there wasn't explicit evidence that the government was collecting data from Verizon Wireless. [In a followup post, Marcy notes that a recent IG report (obtained by Charlie Savage of the NY Times via a FOIA suit) does explicitly include Verizon Wireless in a list; but this information probably wasn't known in time to include it in arguments in this suit.] - another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection - and the third said that the plaintiffs "barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction" https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-judge-leon-order-overturning-phone-dragnet/ https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-ju... https://www.emptywheel.net/2015/08/28/government-recently-released-information-proving-larry-klayman-has-standing/ https://www.emptywheel.net/2015/08/28/government-recently-re...

mtgx 11y ago
This "no standing" argument is really starting to piss me off. Are the judges blind to all the media releases in the past two years, or just pretending to be? > - another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection Ugh. Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!
- Lawtonfogle 11y ago
  Does the 1st Amendment say 'except for obscenity'? Does the 2nd say 'except for criminals'? We've long ago tossed out the Constitution and have since just been playing pretend.
  - schoen 11y ago
    The Supreme Court's interpretation of the first amendment has gotten much more protective of speech over the last couple of centuries.

sillygeese 11y ago

> 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. So let's see.. Because a person can't prove to the government that the government is violating its own rules, the government decides that the person doesn't actually have a case, even though everyone knows the government is spying on everyone, and thus violating its own rules. Rright. So even if the government decided the case against itself, i.e. forbade itself from spying on everyone, why would anyone think they'd actually curtail their spying activities? If a wolf had been eating sheep left and right, and suddenly declared he'll stop doing that because eating sheep is Ba-a-a-ad, would the sheep have reason to believe he'd actually stop? Eating sheep is in the wolf's nature, and he's never had a problem with it before, so why would he stop? It would serve the wolf's interests to distract/placate the sheep though, so that they'd be easier to eat!

tedunangst 11y ago
Try, if you can, to imagine that the government is not a single monolithic entity. Or you could just go through your comment and replace every instance of "government" with "people" for all the sense that would make.
- jessaustin 11y ago
  There really is a difference between NSA staff and the average American. For that matter, there is also a difference between a federal judge and the average American. This "well next time be sure to vote for a good candidate!" horseshit is tiresome. [EDIT:] Apparently this is not clear to everyone, but there is a logical difference between the proposition that two sets differ in some salient respect (e.g. that only those in the NSA may "illegally" spy on other Americans, with impunity), and the proposition that they differ in every respect. A careful reading of the previous paragraph will reveal that I have claimed the former.
  - tedunangst 11y ago