3 ms·

> U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures.

by dmfdmf 13y ago

> U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks. This is good but the second sentence is worrying. Either we have the constitutional right or the government can suspend it when convenient. The implication here is that if the NSA can demonstrate that collecting metadata is effective in fighting terrorists then abrogating the fourth amendment is okay. The NSA has to abide by the constitution just like everyone else regardless of any supposed advantages it might gain by abrogating the highest law of the land.

joering2 13y ago
+1 as you are correct! Just everyone hold on before popping Champagne as this is all scripted. Noone will bulldoze the Utah facility just yet; while Rick said its unconstitutional he really based it on the fact that Gov did not prove it was necessary. This plus opening the door to appeal is actually just helping the Gov and leading them by hand on what they have to do to win it all the way in. You don't need to have a crystal ball to see it couple months from now.
dalke 13y ago
> This is good but the second sentence is worrying. Either we have the constitutional right or the government can suspend it when convenient. You read a lot into a single sentence from a news report of a 68 page court opinion. There's the later sentence "The judge went on to conclude that the searches involved in the NSA metadata program were likely not permissible under the Fourth Amendment in part because there was little evidence the program has actually prevented terrorism." This implies that the opinion may state other reasons for why it's unconstitutional. I have been unable to download that judgement. The URL provided by the news article times out.
- joering2 13y ago
  If you reverse this statement upside down, you come with a conclusion that "searches involved in the NSA metadata program would likely be permissible under the Fourth Amendment in part because they proved enough that the program has actually prevented terrorism." I think its wrong on its principle. Constitution does not say it could be suspended, in parts or entirely, to fight terrorism regardless if you can prove your approach works or not.
  - dalke 13y ago
    I still haven't been able to download the judgement, so I don't know the full argument. The judge cannot decide that pen taps are unconstitutional. As the referenced article points out, the 1979 Supreme Court ruling in Smith v. Maryland "found no search warrant was needed by police to install a device which recorded the numbers dialed on a particular phone line." Only the Supreme Court, or a new amendment, can overturn a Supreme Court decision. Therefore, the judge can only decide that the NSA's actions are completely legal, or must give some logic as to judge where that boundary lies then decide if the NSA has overstepped those bounds. You say "Constitution does not say it could be suspended, in parts or entirely, to fight terrorism". The question is in how to interpret "unreasonable" given that the Supreme Court has already said that a single pen tap is reasonable. The judge is quoted as saying “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.” In my interpretation of POLITICO's summary, the judge's decision is that the 1979 Supreme Court decision, which is the legal justification of the NSA's wholesale pen tap system, cannot be used in that manner.
    - dalke 13y ago
      There's a copy at http://legaltimes.typepad.com/files/obamansa.pdf http://legaltimes.typepad.com/files/obamansa.pdf . The opinion says i) the NSA program constitutes a search under the 4th, and cannot be compared to Smith v. Maryland, along with four different reasons for why they are not comparable, and ii) there's significant likelihood that the search is unreasonable. The judge points out that while "reasonable" is in general individual in character, the Supreme Court does allow a few exceptions. For example, parolees may be searched to see if they are following the terms of their probation even if there is no individual suspicion. The opinion then looks to see if the government's claims fit that "patchwork" of exceptions. The judge writes "Given the limited record before me at this point in the litigation - most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics - I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism." Don't apply your contrapositive logic to that statement. It still doesn't mean that the NSA program, had it been effective, would be constitutional. The opinion points to the government statement that the government could use other means with fewer 4th Amendment problems in order to get the plaintiff's telephone metadata. Had the NSA data gathering been effective, the judge could still have decided that the "plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government's interest in collecting and analyzing telephony metadata and therefore the NSA's bulk collection program is indeed an unreasonable search under the Fourth Amendment."
- dmfdmf 13y ago
  The meaning is clear from the context as written. I did not respond to the legal ruling but to the article's quote of what the judge actually said. You make some valid and important points here and below, but they are more germane to the procedures of the courts. I am aware of how the courts operate on and respect precedent law and that it is a process with defined protocols of what can and cannot be ruled on. Perhaps now that the implications of the pen tap is more clear it will be revisited in light of what we know now and the nature of the internet which was just inchoate in the telephone industry when the original ruling was made. Edit: To be a bit clearer on my last paragraph. I said the second sentence was "worrying" because it can be viewed as the judge signaling the government to give him proof of success fighting terrorists so he can approve it or it could indicate that he is now questioning the prudence of the pen tap rulings given what we know now. I hope it is the latter but we will have to wait and see.

by dmfdmf 13y ago

joering2 13y ago

+1 as you are correct! Just everyone hold on before popping Champagne as this is all scripted. Noone will bulldoze the Utah facility just yet; while Rick said its unconstitutional he really based it on the fact that Gov did not prove it was necessary. This plus opening the door to appeal is actually just helping the Gov and leading them by hand on what they have to do to win it all the way in. You don't need to have a crystal ball to see it couple months from now.

dalke 13y ago

> This is good but the second sentence is worrying. Either we have the constitutional right or the government can suspend it when convenient. You read a lot into a single sentence from a news report of a 68 page court opinion. There's the later sentence "The judge went on to conclude that the searches involved in the NSA metadata program were likely not permissible under the Fourth Amendment in part because there was little evidence the program has actually prevented terrorism." This implies that the opinion may state other reasons for why it's unconstitutional. I have been unable to download that judgement. The URL provided by the news article times out.

joering2 13y ago
If you reverse this statement upside down, you come with a conclusion that "searches involved in the NSA metadata program would likely be permissible under the Fourth Amendment in part because they proved enough that the program has actually prevented terrorism." I think its wrong on its principle. Constitution does not say it could be suspended, in parts or entirely, to fight terrorism regardless if you can prove your approach works or not.
- dalke 13y ago
  I still haven't been able to download the judgement, so I don't know the full argument. The judge cannot decide that pen taps are unconstitutional. As the referenced article points out, the 1979 Supreme Court ruling in Smith v. Maryland "found no search warrant was needed by police to install a device which recorded the numbers dialed on a particular phone line." Only the Supreme Court, or a new amendment, can overturn a Supreme Court decision. Therefore, the judge can only decide that the NSA's actions are completely legal, or must give some logic as to judge where that boundary lies then decide if the NSA has overstepped those bounds. You say "Constitution does not say it could be suspended, in parts or entirely, to fight terrorism". The question is in how to interpret "unreasonable" given that the Supreme Court has already said that a single pen tap is reasonable. The judge is quoted as saying “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.” In my interpretation of POLITICO's summary, the judge's decision is that the 1979 Supreme Court decision, which is the legal justification of the NSA's wholesale pen tap system, cannot be used in that manner.
  - dalke 13y ago
    There's a copy at http://legaltimes.typepad.com/files/obamansa.pdf http://legaltimes.typepad.com/files/obamansa.pdf . The opinion says i) the NSA program constitutes a search under the 4th, and cannot be compared to Smith v. Maryland, along with four different reasons for why they are not comparable, and ii) there's significant likelihood that the search is unreasonable. The judge points out that while "reasonable" is in general individual in character, the Supreme Court does allow a few exceptions. For example, parolees may be searched to see if they are following the terms of their probation even if there is no individual suspicion. The opinion then looks to see if the government's claims fit that "patchwork" of exceptions. The judge writes "Given the limited record before me at this point in the litigation - most notably, the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics - I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism." Don't apply your contrapositive logic to that statement. It still doesn't mean that the NSA program, had it been effective, would be constitutional. The opinion points to the government statement that the government could use other means with fewer 4th Amendment problems in order to get the plaintiff's telephone metadata. Had the NSA data gathering been effective, the judge could still have decided that the "plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government's interest in collecting and analyzing telephony metadata and therefore the NSA's bulk collection program is indeed an unreasonable search under the Fourth Amendment."
dmfdmf 13y ago
The meaning is clear from the context as written. I did not respond to the legal ruling but to the article's quote of what the judge actually said. You make some valid and important points here and below, but they are more germane to the procedures of the courts. I am aware of how the courts operate on and respect precedent law and that it is a process with defined protocols of what can and cannot be ruled on. Perhaps now that the implications of the pen tap is more clear it will be revisited in light of what we know now and the nature of the internet which was just inchoate in the telephone industry when the original ruling was made. Edit: To be a bit clearer on my last paragraph. I said the second sentence was "worrying" because it can be viewed as the judge signaling the government to give him proof of success fighting terrorists so he can approve it or it could indicate that he is now questioning the prudence of the pen tap rulings given what we know now. I hope it is the latter but we will have to wait and see.