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The most Kafkaesque paragraph from today’s NSA ruling

239 points by runn1ng 13y ago

jfaucett 13y ago
If I understand this correctly, it is the simultaneously the most absurd and scary thing I have read in a very long time. So now crimes committed by the government cannot be challenged because the government never intended anyone to find out about it - thats a horrid peace of law.
- Zigurd 13y ago
  > thats a horrid peace of law It isn't law. It's one judge's tortured (Nah. Blackmailed?) logic. He isn't reading the law. He is stuffing caulk into a big crack, and inferring that the flaw should never have been there. The logical consequence of this is that all the cases from targets that can infer they are targets based on the Snowden documents will have to result in courts that simply ignore the crime. That goes way beyond Gonzaga.
  - malandrew 13y ago
    I would love to see someone take the speculation of blackmail further. It's obviously speculation and not fact, but it's reasonable speculation that is entirely possible and no longer in the realm of tin-foil hattery and that's why it matters. We no longer required a tortured conspiracy theory to consider blackmail a likely explanation of why this horrific judgement was made, and that's frightening in and of itself.
  - rossjudson 13y ago
    How do we know this judge hasn't been blackmailed, by the way? The honest protestations of a security agency that genuinely believes the ends justify the means? The public statements of the NSA imply that there's no choice in this matter -- that this kind of surveillance is mandatory. What hasn't happened is an honest debate about whether the public is willing to trade away whatever remains of their privacy for a fractional increase in "security". I think the public ought to at least have the opportunity to make a voting statement on that matter. Secret privacy invasion programs make the debate impossible, until they're not secret. What's happened is that the NSA has made the decision for us.
- rayiner 13y ago
  No you're not reading it correctly. The question is: what is the basis for the challenge? The quote in the article is in response to an argument that there was a statutory basis for the challenge. It says that its inconsistent to find that the statute creates a basis for the challenge in this case. It does not say the conduct cannot be challenged on another basis.
- tomelders 13y ago
  "But marge, I swear I thought you'd never find out" That's a Simpsons quote. That it's relevant in this discussion is cause for dismay.
- fleitz 13y ago
  Read Brandeis decisions, think about how much sense they make and then realize he was usually in the minority.
CurtMonash 13y ago
That's not crazy. When faced with a law, terrible or otherwise, judges have two main choices: 1. Rule that the law should be followed. 2. Rule that the law is unconstitutional. The article provides strong reasons for believing the law is terrible, but that doesn't mean the judge is wrong on any grounds except constitutional ones.
- deleted 13y ago
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  - deleted 13y ago
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- muaddirac 13y ago
  I agree, if I'm reading this correctly. From the article: "Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying." I don't think that's true...I think the judge is saying that the targets of the order have no recourse to challenge the collection of their personal data because there's nothing to challenge (it's legal), regardless of whether or not Congress intended for the targets to know about it. Am I misreading it?
  - marcosdumay 13y ago
    I read it differently. I read: Targets of the order have no recourse to challenge the collection because they don't have legally acceptable evidence that the collection exists. Altough, the fact that the evicende osn't acceptable isn't in your quote.
- pessimizer 13y ago
  3. Rule that the plaintiff lacks standing to sue because the only evidence that the plaintiff has that they have been a target of this law is a result of whistleblowing, and if the evidence of a whistleblower, although both true and confirmed by the defendant, is accepted, this would encourage more whistleblowing, which is the worst possible outcome imaginable. Instead, the only parties who have standing are the ones who had been directly and secretly served with the order (to monitor all of the plaintiff's communications), and those parties only have standing to secretly challenge the order in a secret court. You could rule that, too.
Cakez0r 13y ago
It's not a crime unless you get caught! .... Or apparently if you didn't intend to get caught.
ItendToDisagree 13y ago
A hypothetical: "The principal called. He said that you cheated on your exams." "Yeah, but I never meant for anyone to find out, so why am I in trouble?" Seems legit to me!
- judk 13y ago
  It's more like " The principal says you confessed and agreed to serve detention, because your friend told him you said you'd serve detention if you had to." The specific statute does not provide victims an avenue of relief, so the victims cannot seek relief from the courts under that statute. The real problem is either (a) the law is unconstitutional, or (b) the Cnstitution is not strong (well-written) enough to give justice in cases where the government is concealing its actions.
Aloha 13y ago
I should point out that the person who argued for the petitioner - Doe - in Gonzaga v Doe, was John Roberts - this may not go the obvious way if it reaches the supreme court.
rodrodrod 13y ago
Wait, what? There's no way that's a valid legal argument. That's insane.
smokeyj 13y ago
I wonder what kind of dirt the executive branch has on the judicial branch..
- diminoten 13y ago
  I'm so sick of this claim. The NSA fucked up based on what we know, there's no need to wildly speculate that actual blackmail is occurring too. It's just plain unnecessary.
  - nardi 13y ago
    I think it's absolutely worth considering what power the NSA has that could be abused. Considering what we now know to be true that none of us suspected a few months ago, I think it's more irresponsible to unilaterally shut down speculation of this kind than it is to indulge in it.
    - diminoten 13y ago
      Absolutely. But that's a completely different thing than what happened here, in this specific case.
  - Zigurd 13y ago
    Please tell us in which cases NSA exercised restraint when it could, instead, take every opportunity?
  - tphyahoo 13y ago
    Why not? https://solari.com/blog/control-files https://solari.com/blog/control-files The entire point of gathering information is to use it. Why rule out blackmail?
  - alan_cx 13y ago
    No, its reasonably implied. If the NSA has the information its claimed to have, then its reasonable to suggest that anyone in power has every little thing they ever did wrong in the past in the back of their minds, knowing the NSA might know about it. Recent revelations can only make that feeling stronger. So, while it is unlikely that every judge, politician, whatever, has been literally visited by a NSA goon, it is quite reasonable to suggest that such people rationally decide not to oppose the NSA, and act accordingly. That is the whole reason why industrialised, comprehensive data slurping is a direct threat to any notion of freedom.
rayiner 13y ago
This is taken wildly out of context. The sentence right after the quoted text is just wrong. The quote is in response to a statutory argument. Statutory arguments are evaluated by reference to the text of the statute and Congress's intent in drafting the statute. The court is not saying that the ACLU has no claim because Congress did not intend the targets to find out, but rather that Section 215 doesn't create that claim because it would be inconsistent for Congress to intend to create such a claim when Congress did not intend for targets to find out. The court is rejecting one possible basis for the ACLU's claim, which is that Congress intended to create an avenue recourse in the statute. Its not a general point applicable to other possible bases for the ACLU's claim. In particular, the court is not saying that the ACLU cannot mount a Constitutional challenge for that reason, which is what the article implies. That would be Kafkaesque, but that's not at all what the opinion says. The Constitutional basis is separate from the statutory one, and does not depend on Congress's intent. It helps to think about this analogously to other kinds of suits. Say you feel like a school district is discriminating against African Americans. There's a constitutional dimension to that case, but also a statutory dimension. Congress has created legislation that people can rely on to address such discrimination. To defend a suit under such a statute, a state might argue that a particular suit does not fall within the scope of the statute: that Congress did not intend for the statute to serve as recourse in this situation. But that sill leaves the broader Constitutional issue on the table. Whether Congress intended for a statute to serve as recourse is irrelevant to the Constitutional argument. There are two separate bases.
- Zigurd 13y ago
  Which are the laws for which Congress must explicitly create an avenue for recourse?
  - rayiner 13y ago
    In general, a suit must be based on either a cause of action at common law (tort, contract, etc), a state or federal law, or in limited circumstances directly under the Constitution. Federal statutes must demonstrate some Congressional intent to create an avenue of recourse. In fact, Congress can make something illegal, yet not create a cause of action. For example, with the securities laws, there have been many disputed related to when Congress intended to create avenues of recourse for private parties and when Congress only intended the government to be able to enforce violations.
chasing 13y ago
"Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying." No. Pauley is saying that the targets of the order have no recourse to challenge it. That Congress never intended for them to know about it may be true, but it's otherwise neither here nor there.
- rayiner 13y ago
  Not quite. The court is saying that the statute does not itself create that avenue of recourse.
  - MWil 13y ago
    Except that one of the arguments, if not chiefly, should be that the actual actions (collection, spying, what have you) were unconstitutional - not that any legislative or executive action were passed which Congress has not authorized recourse to. It's as simple as that - fight the behavior directly as it violates privacy rights, regardless of what Congress or the Executive has done. It's true that Congress holds two very powerful jurisdiction stripping abilities but the ability to interpret the Constitution will never be subject to that. Interestingly, the Supreme Court may be stripped of that ability but a State or inferior Federal Court should always be able to hear such a case if there is standing otherwise. (Starting with "Except..." sounds wrong b/c you ^ are correct in regards to statutory recourse, it just shouldn't have been dismissed based on other grounds available which you actually explained pretty well below)
    - ubernostrum 13y ago
      Well, the problem -- though not necessarily the specific problem here -- is that "the government did something unconstitutional" is not enough to make a lawsuit. The deeper issue is whether someone has "standing" to sue, and federal courts (and especially the Supreme Court) have a history of using that to sweep inconvenient issues under the rug when they don't want to make a decision. For example, a standing-based argument against an NSA surveillance lawsuit might admit that, if someone were able to sue, they would certainly prevail on constitutional grounds, but then dismiss the suit anyway because the person suing can't demonstrate they've been harmed by the government action. If the only way you can find out that the action took place is through an illegal disclosure of classified information, for example, it may be there's no evidence you can legally present in court to show you were harmed (this is a variant of the "you weren't supposed to know you were targeted" argument). And that's without getting into the thicket of sovereign immunity (which is not the state-secrets doctrine, but rather the idea that you can't actually sue the government directly unless the government lets you; instead you have to find some specific government official who you can argue exceeded constitutional authority. Good luck doing that when everything that's happened is classified).
jbaiter 13y ago
Yesterday in a talk at 30C3, a historian discussed article 10 of the German 'Grundgesetz' (our constitution) whose logic is similar and which reads as follows: > (1) The privacy of correspondence, posts and telecommunications shall be inviolable. > (2) Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.[1] The logic sounds alike to me: Victims cannot know that they are being surveilled, and should they, under some circumstances obtain knowledge of the fact, take any real legal recourse against it. Fun fact: That article was imposed by the US.[2] [1] http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0054 http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.ht... [2] http://de.wikipedia.org/wiki/Deutsche_Notstandsgesetze http://de.wikipedia.org/wiki/Deutsche_Notstandsgesetze (sorry, the English article doesn't cite any sources)
zacinbusiness 13y ago
I don't think any of this really matters. If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds. The Us government answers to no one, and that includes the Supreme Court.
- bsamuels 13y ago
  >If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds. not really, the supreme court has no way to enforce its decisions so the other branches can completely ignore its rulings if they wish. see: brown v. board of education, some districts completely ignored the rulings and didn't desegregate until 15 years later.
- ubernostrum 13y ago
  If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds. "John Marshall has made his decision; now let him enforce it!" (this is not a new problem)
jkarni 13y ago
If I understand this correctly, is it really that worrying an argument? One can't use covert telephone recording (i.e., without two-party consent) as evidence in most states, and it's important that the person being recorded didn't intend for the conversation to be recorded and available in the future as evidence. Similarly, one would expect leaks to not hold up as evidence. Much as I also dislike the ruling, the argument here seems quite reasonable to me.
coldcode 13y ago
We should be reminded that neither Kafka nor Orwell should be regarded as designs for law. The more time goes by the more we seem to live in their world.
memracom 13y ago
Imagine that the KGB informs Putin that Edward Snowden is holed up in Moscow airport. What would Putin ask. Probably, "What information does he have that we could use?". What would you as a KGB leader say to Putin. Probably "Well he stole a huge amount of sensitive information from the NSA but he apparently hid it all on the Internet and gave copies to several other people. But he doesn't have it with him." And then what would Putin say? Perhaps "If he has already passed on this information, then could he do anything else other than what he has already done?" I suppose the KGB leader would say "No, other than to hide away so that they can't hold a big show trial hoping to cover up the real story." "Good says Putin. We will give him refugee status if he promises not to do anything else to further harm the USA. After all, it will take time for all the information to filter out to the media. We will hide him so that the media has to focus on the facts. And then Putin adds, "Do you think he discovered anything that we don't know already?" And the KGB leader replies "We have known of this lax security for years. Our team of sleeper agents set up many channels of information for us years ago, so we think this only means that the world will learn what we already know."
- officemonkey 13y ago
  Except the KGB hasn't existed since 1991. It's the Federal Security Service.
squozzer 13y ago
The ruling seems to have put the kibosh on legal redress. Now the question becomes of what to do next. So how does one neutralize something like an NSA? Where are their pressure points?
gamerDude 13y ago
Well, in a way this is a similar kind of right as the people have to not be prosecuted after an un-warranted search. Can we get a warrant to search every portion of the government for illegal activity? We just have to find some sort of suspicion that they might be doing this...

239 points by runn1ng 13y ago

If I understand this correctly, it is the simultaneously the most absurd and scary thing I have read in a very long time. So now crimes committed by the government cannot be challenged because the government never intended anyone to find out about it - thats a horrid peace of law.

Zigurd 13y ago
> thats a horrid peace of law It isn't law. It's one judge's tortured (Nah. Blackmailed?) logic. He isn't reading the law. He is stuffing caulk into a big crack, and inferring that the flaw should never have been there. The logical consequence of this is that all the cases from targets that can infer they are targets based on the Snowden documents will have to result in courts that simply ignore the crime. That goes way beyond Gonzaga.
- malandrew 13y ago
  I would love to see someone take the speculation of blackmail further. It's obviously speculation and not fact, but it's reasonable speculation that is entirely possible and no longer in the realm of tin-foil hattery and that's why it matters. We no longer required a tortured conspiracy theory to consider blackmail a likely explanation of why this horrific judgement was made, and that's frightening in and of itself.
- rossjudson 13y ago
  How do we know this judge hasn't been blackmailed, by the way? The honest protestations of a security agency that genuinely believes the ends justify the means? The public statements of the NSA imply that there's no choice in this matter -- that this kind of surveillance is mandatory. What hasn't happened is an honest debate about whether the public is willing to trade away whatever remains of their privacy for a fractional increase in "security". I think the public ought to at least have the opportunity to make a voting statement on that matter. Secret privacy invasion programs make the debate impossible, until they're not secret. What's happened is that the NSA has made the decision for us.
rayiner 13y ago
No you're not reading it correctly. The question is: what is the basis for the challenge? The quote in the article is in response to an argument that there was a statutory basis for the challenge. It says that its inconsistent to find that the statute creates a basis for the challenge in this case. It does not say the conduct cannot be challenged on another basis.
tomelders 13y ago
"But marge, I swear I thought you'd never find out" That's a Simpsons quote. That it's relevant in this discussion is cause for dismay.
fleitz 13y ago
Read Brandeis decisions, think about how much sense they make and then realize he was usually in the minority.

CurtMonash 13y ago

That's not crazy. When faced with a law, terrible or otherwise, judges have two main choices: 1. Rule that the law should be followed. 2. Rule that the law is unconstitutional. The article provides strong reasons for believing the law is terrible, but that doesn't mean the judge is wrong on any grounds except constitutional ones.

deleted 13y ago
[deleted]
- deleted 13y ago
  [deleted]
muaddirac 13y ago
I agree, if I'm reading this correctly. From the article: "Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying." I don't think that's true...I think the judge is saying that the targets of the order have no recourse to challenge the collection of their personal data because there's nothing to challenge (it's legal), regardless of whether or not Congress intended for the targets to know about it. Am I misreading it?
- marcosdumay 13y ago
  I read it differently. I read: Targets of the order have no recourse to challenge the collection because they don't have legally acceptable evidence that the collection exists. Altough, the fact that the evicende osn't acceptable isn't in your quote.
pessimizer 13y ago
3. Rule that the plaintiff lacks standing to sue because the only evidence that the plaintiff has that they have been a target of this law is a result of whistleblowing, and if the evidence of a whistleblower, although both true and confirmed by the defendant, is accepted, this would encourage more whistleblowing, which is the worst possible outcome imaginable. Instead, the only parties who have standing are the ones who had been directly and secretly served with the order (to monitor all of the plaintiff's communications), and those parties only have standing to secretly challenge the order in a secret court. You could rule that, too.

Cakez0r 13y ago

It's not a crime unless you get caught! .... Or apparently if you didn't intend to get caught.

ItendToDisagree 13y ago

A hypothetical: "The principal called. He said that you cheated on your exams." "Yeah, but I never meant for anyone to find out, so why am I in trouble?" Seems legit to me!

judk 13y ago
It's more like " The principal says you confessed and agreed to serve detention, because your friend told him you said you'd serve detention if you had to." The specific statute does not provide victims an avenue of relief, so the victims cannot seek relief from the courts under that statute. The real problem is either (a) the law is unconstitutional, or (b) the Cnstitution is not strong (well-written) enough to give justice in cases where the government is concealing its actions.

Aloha 13y ago

I should point out that the person who argued for the petitioner - Doe - in Gonzaga v Doe, was John Roberts - this may not go the obvious way if it reaches the supreme court.

rodrodrod 13y ago

Wait, what? There's no way that's a valid legal argument. That's insane.

smokeyj 13y ago

I wonder what kind of dirt the executive branch has on the judicial branch..

diminoten 13y ago
I'm so sick of this claim. The NSA fucked up based on what we know, there's no need to wildly speculate that actual blackmail is occurring too. It's just plain unnecessary.
- nardi 13y ago
  I think it's absolutely worth considering what power the NSA has that could be abused. Considering what we now know to be true that none of us suspected a few months ago, I think it's more irresponsible to unilaterally shut down speculation of this kind than it is to indulge in it.
  - diminoten 13y ago
    Absolutely. But that's a completely different thing than what happened here, in this specific case.
- Zigurd 13y ago
  Please tell us in which cases NSA exercised restraint when it could, instead, take every opportunity?
- tphyahoo 13y ago
  Why not? https://solari.com/blog/control-files https://solari.com/blog/control-files The entire point of gathering information is to use it. Why rule out blackmail?
- alan_cx 13y ago
  No, its reasonably implied. If the NSA has the information its claimed to have, then its reasonable to suggest that anyone in power has every little thing they ever did wrong in the past in the back of their minds, knowing the NSA might know about it. Recent revelations can only make that feeling stronger. So, while it is unlikely that every judge, politician, whatever, has been literally visited by a NSA goon, it is quite reasonable to suggest that such people rationally decide not to oppose the NSA, and act accordingly. That is the whole reason why industrialised, comprehensive data slurping is a direct threat to any notion of freedom.

rayiner 13y ago

This is taken wildly out of context. The sentence right after the quoted text is just wrong. The quote is in response to a statutory argument. Statutory arguments are evaluated by reference to the text of the statute and Congress's intent in drafting the statute. The court is not saying that the ACLU has no claim because Congress did not intend the targets to find out, but rather that Section 215 doesn't create that claim because it would be inconsistent for Congress to intend to create such a claim when Congress did not intend for targets to find out. The court is rejecting one possible basis for the ACLU's claim, which is that Congress intended to create an avenue recourse in the statute. Its not a general point applicable to other possible bases for the ACLU's claim. In particular, the court is not saying that the ACLU cannot mount a Constitutional challenge for that reason, which is what the article implies. That would be Kafkaesque, but that's not at all what the opinion says. The Constitutional basis is separate from the statutory one, and does not depend on Congress's intent. It helps to think about this analogously to other kinds of suits. Say you feel like a school district is discriminating against African Americans. There's a constitutional dimension to that case, but also a statutory dimension. Congress has created legislation that people can rely on to address such discrimination. To defend a suit under such a statute, a state might argue that a particular suit does not fall within the scope of the statute: that Congress did not intend for the statute to serve as recourse in this situation. But that sill leaves the broader Constitutional issue on the table. Whether Congress intended for a statute to serve as recourse is irrelevant to the Constitutional argument. There are two separate bases.

Zigurd 13y ago
Which are the laws for which Congress must explicitly create an avenue for recourse?
- rayiner 13y ago
  In general, a suit must be based on either a cause of action at common law (tort, contract, etc), a state or federal law, or in limited circumstances directly under the Constitution. Federal statutes must demonstrate some Congressional intent to create an avenue of recourse. In fact, Congress can make something illegal, yet not create a cause of action. For example, with the securities laws, there have been many disputed related to when Congress intended to create avenues of recourse for private parties and when Congress only intended the government to be able to enforce violations.

chasing 13y ago

"Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying." No. Pauley is saying that the targets of the order have no recourse to challenge it. That Congress never intended for them to know about it may be true, but it's otherwise neither here nor there.

rayiner 13y ago
Not quite. The court is saying that the statute does not itself create that avenue of recourse.
- MWil 13y ago
  Except that one of the arguments, if not chiefly, should be that the actual actions (collection, spying, what have you) were unconstitutional - not that any legislative or executive action were passed which Congress has not authorized recourse to. It's as simple as that - fight the behavior directly as it violates privacy rights, regardless of what Congress or the Executive has done. It's true that Congress holds two very powerful jurisdiction stripping abilities but the ability to interpret the Constitution will never be subject to that. Interestingly, the Supreme Court may be stripped of that ability but a State or inferior Federal Court should always be able to hear such a case if there is standing otherwise. (Starting with "Except..." sounds wrong b/c you ^ are correct in regards to statutory recourse, it just shouldn't have been dismissed based on other grounds available which you actually explained pretty well below)
  - ubernostrum 13y ago
    Well, the problem -- though not necessarily the specific problem here -- is that "the government did something unconstitutional" is not enough to make a lawsuit. The deeper issue is whether someone has "standing" to sue, and federal courts (and especially the Supreme Court) have a history of using that to sweep inconvenient issues under the rug when they don't want to make a decision. For example, a standing-based argument against an NSA surveillance lawsuit might admit that, if someone were able to sue, they would certainly prevail on constitutional grounds, but then dismiss the suit anyway because the person suing can't demonstrate they've been harmed by the government action. If the only way you can find out that the action took place is through an illegal disclosure of classified information, for example, it may be there's no evidence you can legally present in court to show you were harmed (this is a variant of the "you weren't supposed to know you were targeted" argument). And that's without getting into the thicket of sovereign immunity (which is not the state-secrets doctrine, but rather the idea that you can't actually sue the government directly unless the government lets you; instead you have to find some specific government official who you can argue exceeded constitutional authority. Good luck doing that when everything that's happened is classified).

jbaiter 13y ago

Yesterday in a talk at 30C3, a historian discussed article 10 of the German 'Grundgesetz' (our constitution) whose logic is similar and which reads as follows: > (1) The privacy of correspondence, posts and telecommunications shall be inviolable. > (2) Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.[1] The logic sounds alike to me: Victims cannot know that they are being surveilled, and should they, under some circumstances obtain knowledge of the fact, take any real legal recourse against it. Fun fact: That article was imposed by the US.[2] [1] http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.html#p0054 http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.ht... [2] http://de.wikipedia.org/wiki/Deutsche_Notstandsgesetze http://de.wikipedia.org/wiki/Deutsche_Notstandsgesetze (sorry, the English article doesn't cite any sources)

zacinbusiness 13y ago

I don't think any of this really matters. If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds. The Us government answers to no one, and that includes the Supreme Court.

bsamuels 13y ago
>If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds. not really, the supreme court has no way to enforce its decisions so the other branches can completely ignore its rulings if they wish. see: brown v. board of education, some districts completely ignored the rulings and didn't desegregate until 15 years later.
ubernostrum 13y ago
If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds. "John Marshall has made his decision; now let him enforce it!" (this is not a new problem)

jkarni 13y ago

If I understand this correctly, is it really that worrying an argument? One can't use covert telephone recording (i.e., without two-party consent) as evidence in most states, and it's important that the person being recorded didn't intend for the conversation to be recorded and available in the future as evidence. Similarly, one would expect leaks to not hold up as evidence. Much as I also dislike the ruling, the argument here seems quite reasonable to me.

coldcode 13y ago

We should be reminded that neither Kafka nor Orwell should be regarded as designs for law. The more time goes by the more we seem to live in their world.

memracom 13y ago

Imagine that the KGB informs Putin that Edward Snowden is holed up in Moscow airport. What would Putin ask. Probably, "What information does he have that we could use?". What would you as a KGB leader say to Putin. Probably "Well he stole a huge amount of sensitive information from the NSA but he apparently hid it all on the Internet and gave copies to several other people. But he doesn't have it with him." And then what would Putin say? Perhaps "If he has already passed on this information, then could he do anything else other than what he has already done?" I suppose the KGB leader would say "No, other than to hide away so that they can't hold a big show trial hoping to cover up the real story." "Good says Putin. We will give him refugee status if he promises not to do anything else to further harm the USA. After all, it will take time for all the information to filter out to the media. We will hide him so that the media has to focus on the facts. And then Putin adds, "Do you think he discovered anything that we don't know already?" And the KGB leader replies "We have known of this lax security for years. Our team of sleeper agents set up many channels of information for us years ago, so we think this only means that the world will learn what we already know."

officemonkey 13y ago
Except the KGB hasn't existed since 1991. It's the Federal Security Service.

squozzer 13y ago

The ruling seems to have put the kibosh on legal redress. Now the question becomes of what to do next. So how does one neutralize something like an NSA? Where are their pressure points?

gamerDude 13y ago

Well, in a way this is a similar kind of right as the people have to not be prosecuted after an un-warranted search. Can we get a warrant to search every portion of the government for illegal activity? We just have to find some sort of suspicion that they might be doing this...