4 ms·

EFF Urges Supreme Court to Take on Unconstitutional NSA Surveillance

152 points by DiabloD3 9y ago

bitwize 9y ago
How well do you think that will go with Trump loading the Court towards conservatism and national-security-ism?
- rayiner 9y ago
  If Trump continues to nominate Justices in the Scalia mold, it'll be fine. Scalia, despite his social conservative leanings, had a good record on the First Amendmenf, Fourth Amendment, and habeas corpus. For example, he and Justice Stevens dissented in Hamdi v. Rumsfeld, a case in which the liberal justices endorsed a wish-washy view of when US citizens could be detained without due process. (In Scalia's view, only when habeas corpus is suspended, as set forth in the Constitution). He also wrote the majority opinion in Kyllo, where the Supreme Court held that police use of infrared imaging to see through walls was a search requiring a warrant. He joined with Roberts in Riley, which held that police can't search cell phones incident to arrest. The vast majority of Trump's Supreme Court short list this last round consisted of principled originalists, not social conservatives/authoritarians.
  - trendia 9y ago
    It seems that Gorsuch is indeed aligned with Scalia as far as the Fourth Amendment is concerned. Gorsuch has argued that the state must have a valid warrant to perform a search, that the warrant must have been properly executed and obtained, and that police may not use a drug dog to justify a search in the absence of a warrant [0]. [0] http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/ http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/
  - pdkl95 9y ago
    > Kyllo From Justice Stevens dissent in Kyllo v United States[1]: > Despite the Court's attempt to draw a line that is "not only firm but also bright," ... the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use," ... Yet how much use is general public use is not even hinted at by the Court's opinion Eavesdropping on speech in what we used to consider private areas may no longer require a warrant once server-side voice recognition devices (e.g. Amazon's Echo) if someone convinces a judge that type of voice recognition technology "is general public use". [1] http://caselaw.findlaw.com/us-supreme-court/533/27.html http://caselaw.findlaw.com/us-supreme-court/533/27.html
- danjoc 9y ago
  Given he was the target of illegal unmasking, the thin lie that supposedly makes the whole surveillance thing constitutional, Trump and his conservative judges are probably sympathetic.
- klondike_ 9y ago
  The US Supreme Court is generally divided into two camps: originalists (favored by Republicans) and liberals (favored by Democrats). Originalists tend to interpret the constitution by trying to infer what the founding fathers intended. Liberals tend to interpret the constitution more broadly so that it fits better with today's society. Regardless of which view takes the majority in the Supreme Court, it would be hard to argue in favor of Section 702. The 4th amendment is pretty clear cut compared to laws regarding marriage and abortion. Warrantless spying on millions of Americans is illegal, plain and simple.
  - lern_too_spel 9y ago
    Section 702 authorizes surveillance of non-US persons located outside the United States for foreign intelligence purposes, so it is not at all what you think it is ("warrantless spying on millions of Americans"). The courts so far have not challenged the constitutionality of Section 702, only whether the implementations of specific programs comply with its rules.
masonic 9y ago
If only the EFF had bothered to take up such Principled Stances against the prior Administration, which put all this infrastructure in place.
- mcone 9y ago
  What makes you think they didn't? They were critical of the Obama administration too. Example: https://www.eff.org/deeplinks/2017/01/obama-expands-surveillance-powers-his-way-out https://www.eff.org/deeplinks/2017/01/obama-expands-surveill...
  - mikeyouse 9y ago
    They sued repeatedly during his administration too: 2016 - https://www.scmagazine.com/eff-files-amicus-brief-to-persuade-appeals-court-to-hear-wikimedia-v-nsa/article/528815/ https://www.scmagazine.com/eff-files-amicus-brief-to-persuad... 2014 - https://www.eff.org/press/releases/eff-sues-nsa-director-national-intelligence-zero-day-disclosure-process https://www.eff.org/press/releases/eff-sues-nsa-director-nat... 2013 - https://www.eff.org/sites/default/files/filenode/firstunitarianvnsa-final.pdf https://www.eff.org/sites/default/files/filenode/firstunitar... 2012 - https://www.wired.com/2012/08/eff-spy-documents/ https://www.wired.com/2012/08/eff-spy-documents/ 2011 - https://www.wired.com/2011/12/dragnet-surveillance-case/ https://www.wired.com/2011/12/dragnet-surveillance-case/
    - masonic 9y ago
      1) filing an amicus brief is not "suing" 2) A FOIA case isn't exactly criticizing the administration on policy. 3) 4) and 5) the NSA suit originated against the GW Bush Administration. Quoting their own press release: "Specifically the EFF wants the government to make public a secret court ruling that found that the feds had broken a 2008 wiretapping law that was intended to legalize President George W. Bush's warrantless wiretapping program." To be intellectually honest about the public stances they take on issues they claim to support and rights they claim to defend, compare their press releases[1] from during the Obama Administration versus during the Trump administration (or GWB administration) with respect to identical, specific acts by the Obama administration. Note specifically their silence on Internet Privacy (lost under Obama, then reimplemented in a weaker way and delayed) and on Net Neutrality (also lost under Obama and limited to a half-assed after-the-fact regulation change). [1] https://www.eff.org/updates?type=press_release https://www.eff.org/updates?type=press_release
valuearb 9y ago
Winning is also about picking the right case. I'm thinking they picked a good case, given the poor kid was clearly a victim of entrapment.

152 points by DiabloD3 9y ago

bitwize 9y ago

How well do you think that will go with Trump loading the Court towards conservatism and national-security-ism?

rayiner 9y ago
If Trump continues to nominate Justices in the Scalia mold, it'll be fine. Scalia, despite his social conservative leanings, had a good record on the First Amendmenf, Fourth Amendment, and habeas corpus. For example, he and Justice Stevens dissented in Hamdi v. Rumsfeld, a case in which the liberal justices endorsed a wish-washy view of when US citizens could be detained without due process. (In Scalia's view, only when habeas corpus is suspended, as set forth in the Constitution). He also wrote the majority opinion in Kyllo, where the Supreme Court held that police use of infrared imaging to see through walls was a search requiring a warrant. He joined with Roberts in Riley, which held that police can't search cell phones incident to arrest. The vast majority of Trump's Supreme Court short list this last round consisted of principled originalists, not social conservatives/authoritarians.
- trendia 9y ago
  It seems that Gorsuch is indeed aligned with Scalia as far as the Fourth Amendment is concerned. Gorsuch has argued that the state must have a valid warrant to perform a search, that the warrant must have been properly executed and obtained, and that police may not use a drug dog to justify a search in the absence of a warrant [0]. [0] http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/ http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/
- pdkl95 9y ago
  > Kyllo From Justice Stevens dissent in Kyllo v United States[1]: > Despite the Court's attempt to draw a line that is "not only firm but also bright," ... the contours of its new rule are uncertain because its protection apparently dissipates as soon as the relevant technology is "in general public use," ... Yet how much use is general public use is not even hinted at by the Court's opinion Eavesdropping on speech in what we used to consider private areas may no longer require a warrant once server-side voice recognition devices (e.g. Amazon's Echo) if someone convinces a judge that type of voice recognition technology "is general public use". [1] http://caselaw.findlaw.com/us-supreme-court/533/27.html http://caselaw.findlaw.com/us-supreme-court/533/27.html
danjoc 9y ago
Given he was the target of illegal unmasking, the thin lie that supposedly makes the whole surveillance thing constitutional, Trump and his conservative judges are probably sympathetic.
klondike_ 9y ago
The US Supreme Court is generally divided into two camps: originalists (favored by Republicans) and liberals (favored by Democrats). Originalists tend to interpret the constitution by trying to infer what the founding fathers intended. Liberals tend to interpret the constitution more broadly so that it fits better with today's society. Regardless of which view takes the majority in the Supreme Court, it would be hard to argue in favor of Section 702. The 4th amendment is pretty clear cut compared to laws regarding marriage and abortion. Warrantless spying on millions of Americans is illegal, plain and simple.
- lern_too_spel 9y ago
  Section 702 authorizes surveillance of non-US persons located outside the United States for foreign intelligence purposes, so it is not at all what you think it is ("warrantless spying on millions of Americans"). The courts so far have not challenged the constitutionality of Section 702, only whether the implementations of specific programs comply with its rules.

masonic 9y ago

If only the EFF had bothered to take up such Principled Stances against the prior Administration, which put all this infrastructure in place.

mcone 9y ago
What makes you think they didn't? They were critical of the Obama administration too. Example: https://www.eff.org/deeplinks/2017/01/obama-expands-surveillance-powers-his-way-out https://www.eff.org/deeplinks/2017/01/obama-expands-surveill...
- mikeyouse 9y ago
  They sued repeatedly during his administration too: 2016 - https://www.scmagazine.com/eff-files-amicus-brief-to-persuade-appeals-court-to-hear-wikimedia-v-nsa/article/528815/ https://www.scmagazine.com/eff-files-amicus-brief-to-persuad... 2014 - https://www.eff.org/press/releases/eff-sues-nsa-director-national-intelligence-zero-day-disclosure-process https://www.eff.org/press/releases/eff-sues-nsa-director-nat... 2013 - https://www.eff.org/sites/default/files/filenode/firstunitarianvnsa-final.pdf https://www.eff.org/sites/default/files/filenode/firstunitar... 2012 - https://www.wired.com/2012/08/eff-spy-documents/ https://www.wired.com/2012/08/eff-spy-documents/ 2011 - https://www.wired.com/2011/12/dragnet-surveillance-case/ https://www.wired.com/2011/12/dragnet-surveillance-case/
  - masonic 9y ago
    1) filing an amicus brief is not "suing" 2) A FOIA case isn't exactly criticizing the administration on policy. 3) 4) and 5) the NSA suit originated against the GW Bush Administration. Quoting their own press release: "Specifically the EFF wants the government to make public a secret court ruling that found that the feds had broken a 2008 wiretapping law that was intended to legalize President George W. Bush's warrantless wiretapping program." To be intellectually honest about the public stances they take on issues they claim to support and rights they claim to defend, compare their press releases[1] from during the Obama Administration versus during the Trump administration (or GWB administration) with respect to identical, specific acts by the Obama administration. Note specifically their silence on Internet Privacy (lost under Obama, then reimplemented in a weaker way and delayed) and on Net Neutrality (also lost under Obama and limited to a half-assed after-the-fact regulation change). [1] https://www.eff.org/updates?type=press_release https://www.eff.org/updates?type=press_release

valuearb 9y ago

Winning is also about picking the right case. I'm thinking they picked a good case, given the poor kid was clearly a victim of entrapment.