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In 2015, promising surveillance cases ran into legal brick walls

48 points by pavornyoh 11y ago

DannyBee 11y ago
1. Lawyers and justice systems generally lag societal opinion, not lead it. 2. s/societal opinion/technology/ as well. 3. As a result of the above, the most effective and expedient way to get policy changes is almost never going to be through court, no matter how right one may be. In this case, the numbers are not really heavily on their side, and they have trouble doing anything but challenging it in court (see http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy/ http://www.pewresearch.org/fact-tank/2015/05/29/what-america... vs http://www.nbcnews.com/storyline/nsa-snooping/survey-americans-divided-government-surveillance-n372276 http://www.nbcnews.com/storyline/nsa-snooping/survey-america... vs ... ). 3. While I love them, the EFF has often been wrong over the years about how far they will get with various lawsuits. They are an advocacy organization, and so one should take their predictions with a grain of salt. (This is the part where the article says "Experts felt a shift was equally imminent. .... "I think it's impossible to tell which case will be the one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide the constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic Frontier Foundation, told Ars last year.") The vast majority of non-advocacy experts i'm aware of did not think most of these lawsuits would get as far as the EFF did, simply because the odds are highly against them. In short, none of this is either surprising, nor is it likely to change anytime soon.
- JoshTriplett 11y ago
  > 1. Lawyers and justice systems generally lag societal opinion, not lead it. > 2. s/societal opinion/technology/ as well. 2 is usually a feature: if lawyers, justice systems, and regulators in general could keep up with technology well enough to attempt to regulate it before it grew far enough, we'd be even more screwed than we already are. One of the few things helping us is that technology is hard to suppress, and by the time regulators notice it, it's at least sometimes big enough and popular enough to fight back. It's too easy to silently crush a technology nobody knows about or cares about.
  - DannyBee 11y ago
    This is a pretty cynical view. Mainly because these regulators/etc are not driven by themselves, they are driven by your fellow countrymen ;-)
zachrose 11y ago
I'm curious how a case can be ruled moot just because a policy has been changed. It would seem to me that the lawsuits are seeking damages for privacy violations that have already occured.
- erikpukinskis 11y ago
  Also, it means the NSA can simply shut down a program whenever evidence of it is leaked, only to spin it back up under another name and then claim the program is no longer operational, delaying regulation perpetually.
  - gscott 11y ago
    Apparently they are now operating these programs from overseas somehow trying to avoid u.s jurisdiction. I presume by setting up a friendly country (5 eyes) for the same data then using their data. Ted Cruz mentioned in a recent Republican debate now 100% of telephone meta data is collected and the Senate Foreign Affairs chair went crazy saying he was going to prosecute him for giving that information out. Things are worse not better.

48 points by pavornyoh 11y ago

1. Lawyers and justice systems generally lag societal opinion, not lead it. 2. s/societal opinion/technology/ as well. 3. As a result of the above, the most effective and expedient way to get policy changes is almost never going to be through court, no matter how right one may be. In this case, the numbers are not really heavily on their side, and they have trouble doing anything but challenging it in court (see http://www.pewresearch.org/fact-tank/2015/05/29/what-americans-think-about-nsa-surveillance-national-security-and-privacy/ http://www.pewresearch.org/fact-tank/2015/05/29/what-america... vs http://www.nbcnews.com/storyline/nsa-snooping/survey-americans-divided-government-surveillance-n372276 http://www.nbcnews.com/storyline/nsa-snooping/survey-america... vs ... ). 3. While I love them, the EFF has often been wrong over the years about how far they will get with various lawsuits. They are an advocacy organization, and so one should take their predictions with a grain of salt. (This is the part where the article says "Experts felt a shift was equally imminent. .... "I think it's impossible to tell which case will be the one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide the constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic Frontier Foundation, told Ars last year.") The vast majority of non-advocacy experts i'm aware of did not think most of these lawsuits would get as far as the EFF did, simply because the odds are highly against them. In short, none of this is either surprising, nor is it likely to change anytime soon.

JoshTriplett 11y ago
> 1. Lawyers and justice systems generally lag societal opinion, not lead it. > 2. s/societal opinion/technology/ as well. 2 is usually a feature: if lawyers, justice systems, and regulators in general could keep up with technology well enough to attempt to regulate it before it grew far enough, we'd be even more screwed than we already are. One of the few things helping us is that technology is hard to suppress, and by the time regulators notice it, it's at least sometimes big enough and popular enough to fight back. It's too easy to silently crush a technology nobody knows about or cares about.
- DannyBee 11y ago
  This is a pretty cynical view. Mainly because these regulators/etc are not driven by themselves, they are driven by your fellow countrymen ;-)

zachrose 11y ago

I'm curious how a case can be ruled moot just because a policy has been changed. It would seem to me that the lawsuits are seeking damages for privacy violations that have already occured.

erikpukinskis 11y ago
Also, it means the NSA can simply shut down a program whenever evidence of it is leaked, only to spin it back up under another name and then claim the program is no longer operational, delaying regulation perpetually.
- gscott 11y ago
  Apparently they are now operating these programs from overseas somehow trying to avoid u.s jurisdiction. I presume by setting up a friendly country (5 eyes) for the same data then using their data. Ted Cruz mentioned in a recent Republican debate now 100% of telephone meta data is collected and the Senate Foreign Affairs chair went crazy saying he was going to prosecute him for giving that information out. Things are worse not better.