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U.S. NSA domestic phone spying program illegal: appeals court

653 points by dnewms 11y ago

SoftwareMaven 11y ago
Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? Isn't the whole point of a constitutional challenge to address things illegal things authorized by the government?
- delinka 11y ago
  Seems to me the lawyers would attempt to throw noodles at the wall until something sticks. The "authorized by Congress" noodle stuck to the wall of the lower court. A higher court told them they needed to have cleaned their walls first. Whether the lower court should have accepted the "authorized by Congress" argument is another matter, but the reason might be that the judge agreed. Or maybe he didn't feel convinced by the challenger's arguments. Or maybe he was having a bad day. I hope it wasn't the latter. Anyway, this is why the appeals system even exists - seems to be working.
  - nolok 11y ago
    Or, given the case at hand, they had some things on him he didn't want "leaked". Might sound paranoid, but that is one of the core reasons why such systems are so bad, right ?
    - a3n 11y ago
      Exactly right. And the fact that such tin-hat conversations are at all credible (reality or not) today is an indication that someone has fucked up, very badly and very existentially. We just can't take seriously any statement made by spies, whether they're false or true. Even statements that are provably true have a good chance at being in front of a bad motive. They game others as their day job, after all.
- constichallenge 11y ago
  An action by a federal agency can be constitutionally challenged as being outside of the scope or powers granted to that agency by congress. The constitutional challenge thus would be that the agency is operating outside of the checks and balances system the constitution lays out. Congress has in the past and can today authorize agencies to do things like collect data on US citizens for national security purposes or public safety purposes.
  - mikecb 11y ago
    What you describe is a statutory challenge. A constitutional challenge would be that the statute authorizing the conduct went beyond the enumerated powers in the Constitution, or that the conduct went beyond the President's inherent Article II authorities, or that it violated rights protected by the Bill of Rights. That someone is violating checks and balances isn't really a cause of action; you would be more specific in your case.
- mikecb 11y ago
  The constitutional challenge was dismissed because it was found to be constitutional under existing jurisprudence. See discussion in the lower court's memorandum opinion and order starting on the bottom of page 38[1]. Smith v. Maryland, abridged, said that we have no privacy interest in the metadata sent to a third party in order to complete a call. In the words of 4th amendment jurisprudence, we don't have a reasonable expectation of privacy in items we voluntarily disclose to third parties. As such, the collection of this information by the government is not a search for 4th amendment purposes, and therefore falls entirely outside 4th amendment protection. THE ACLU's constitutional argument is a novel one that has not yet become binding precedent on lower courts, call the mosaic theory, though it is gaining ground in some recent Supreme Court decisions. See Orin Kerr's paper on this theory of a search.[2] [1] (pdf warning) https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_denying_aclu_motion_for_preliminary_injunction.pdf https://www.aclu.org/files/assets/order_granting_governments... [2](pdf warning) http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1079&context=mlr http://repository.law.umich.edu/cgi/viewcontent.cgi?article=...
  - a3n 11y ago
    > In the words of 4th amendment jurisprudence, we don't have a reasonable expectation of privacy in items we voluntarily disclose to third parties. I would hope that thinking on this evolves, to the point that we have a reasonable expectation that information we've voluntarily disclosed to a third party stays between us and that third party. Because that is exactly my personal expectation, notwithstanding my other expectation that it will be violated.
    - mikecb 11y ago
      Mosaic theory doesn't go that far, but in the age of widespread statistical inference, it is an important development. Generally speaking, the public is entitled to all evidence. Certain rights, such as the Fifth amendment, protect you from being compelled to testify against yourself, but you have no right to prevent, nor does anyone else have the right to refuse, to testify against or about you, except for a very small and declining set of common law privileges, and even those only apply in certain circumstances.
- ksherlock 11y ago
  That's why it's going back to be reviewed but it's not why it was dismissed in the first place. The government asked for dismissal because 1: The ACLU lacks standing (denied) 2: Sovereign Immunity (upheld but reversed) 3: Bulk collection was authorized by congress (upheld but reversed) 4: bulk collection does not violate 4th or 1st amendments (upheld) tl;dr: Court: Authorized by congress and constitutional. Appeals Court: Not authorized by congress, therefore we can ignore any constitutional aspects of it. https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_denying_aclu_motion_for_preliminary_injunction.pdf https://www.aclu.org/files/assets/order_granting_governments... http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf
- jakewalker 11y ago
  There is a doctrine called "constitutional avoidance" - if a court can decide a case on grounds without reaching a constitutional question (particularly a close question), it ought to decide the case on the alternative grounds and avoid the constitutional question. So, for example, a court might say: This action was improper because it was not authorized by Congress. That is all we need to decide. Because we made this decision, we don't need to reach the constitutional question. Of course, if Congress had authorized this action (or now does so), and this case is back before us, we will no longer be able to take that path. We may, at that time, decide that the congressionally-authorized action is unconstitutional. But because there is no need to do reach that decision at this time, we decline to do so. Read more here: http://en.wikipedia.org/wiki/Constitutional_avoidance http://en.wikipedia.org/wiki/Constitutional_avoidance
- dragonwriter 11y ago
  > Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? The Constitutional limits on what the executive can do on its own authority are different than the Constitutional limits on what the Congress can authorize the Executive to do. So, its quite possible that "it was authorized by Congress" could be a decisive consideration in a case challenging an executive action as unconstitutional.
a3n 11y ago
Pre-Snowden, I wonder if the ruling would have been different. Back then the judges would only know what was presented to them. The government would have obviously presented in a way that was most favorable to them, and their opposition would not have access to crucial evidence. Now that the cat shit is out of the bag, judges and everyone else have more background to evaluate what's in front of them. The government would still present in a way favorable to them. But a judge would now more fully understand the significance of what's presented to him. We live in the world, and we bring our entire experience to bear when we evaluate. Thank you Snowden. Fuck you NSA.
- zwtaylor 11y ago
  There probably wouldn't have been a ruling at all. The court itself states that Snowden was the principle catalyst for this case to ever go to court in the first place. From the judgement: "Americans first learned about the telephone metadata program that appellants now challenge on June 5, 2013, when the British newspaper The Guardian published a FISC order leaked by former government contractor Edward Snowden".
- kordless 11y ago
  > Thank you Snowden. Fuck you NSA. I'm going to turn that into a sticker and stick it on my laptop.
  - patzerhacker 11y ago
    Bring back the "This Machine Kills Fascists" sticker for laptops as well!
  - sharpasand 11y ago
    please make more then 1, i'll buy from you.
    - niels_olson 11y ago
      Better, make a script that sends that back as a packet to every government IP that attempts a connection with your computer. Eventually, somebody is going to look at a logfile.
higherpurpose 11y ago
What does this mean for: 1) the Patriot Act's renewal/new bills to extend/enhance it 2) the USA Freedom Act Is the USA Freedom Act "compatible" with this decision, or does it allow the NSA to do some things that the Court here has just banned?
- ceejayoz 11y ago
  Essentially nothing, until these cases make their way to the Supreme Court.
- Shivetya 11y ago
  more rules specifically allowing this behavior will have to be written into the bills. the specific ruling did not rest on the 4th Amendment but instead what was written into the Patriot Act which means, amend the Patriot Act and its back to court to try for a Constitutional issue
rev_bird 11y ago
Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?
- kazazes 11y ago
  I have faith in the power of the judiciary, still. While putting illegal surveillance programs to bed may feel like a half century long game of wack-a-mole, precedent still has power in American courts.
- cryoshon 11y ago
  Eh, cheer up. Sure, the intelligence agencies will do their best to lie and hide from Congress, but every time they do so, it is one step closer to the hammer coming down onto them and their funding being slashed.
  - MrZongle2 11y ago
    Sorry to add to the downer chorus, but I think that would require a majority in both houses to exhibit some integrity and a desire to wield Congressional power. I don't see that happening. Obstructionism, pandering, lobbying and abdication of responsibility? Oh, we've got that in spades.
    - ericcumbee 11y ago
      Not to be a double downer, I don't see the current president signing anything that would limit executive power so it would take 2/3rds of both houses to override a veto.
      - gknoy 11y ago
        I concur, with the slight modification: s/current/any/; Not only that, but any bill that successfully passed could, given past history by several presidents, be effectively ignored via executive order.
a3n 11y ago
I'm sure the NSA is laughing at the judge and his decision. "How many divisions does he have? Bwa-ha-ha-ha." https://en.wikiquote.org/wiki/Joseph_Stalin https://en.wikiquote.org/wiki/Joseph_Stalin
- AnimalMuppet 11y ago
  NSA employees go home at night. They are subject to arrest when they do, if the courts need to go that far.
  - a3n 11y ago
    How would you know who they are? I think their govt IDs identify them as DoD employees, not specifically NSA.
  - TallGuyShort 11y ago
    Technically, it's possible. Practically, I think it's extremely unlikely that a law enforcement officers will request, and that a judge will approve warrants to arrest individual members of the security services, and that those members won't just mysteriously get out of jail a few hours later, and that a politician won't figure out a way to BandAid the inconvenience within weeks.
- peterlvilim 11y ago
  That statement ended up proving to be quite ironic: https://en.wikipedia.org/wiki/Pope_John_Paul_II#Role_in_the_fall_of_Communism https://en.wikipedia.org/wiki/Pope_John_Paul_II#Role_in_the_...
kylelibra 11y ago
Here's the actual decision: http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf Concurrence by Judge Sack: https://www.aclu.org/sites/default/files/field_document/clapper-ca2-sack-concurrence.pdf https://www.aclu.org/sites/default/files/field_document/clap... Here's what struck me as the most interesting comment from Sack - "Considering the issue of advocacy in the context of deliberations involving alleged state secrets, and, more broadly, the ʺleakʺ by Edward Snowden that led to this litigation, calls to mind the disclosures by Daniel Ellsberg that gave rise to the legendary ʺPentagon Papersʺ litigation."
- ganeumann 11y ago
  Love the analysis of standing. The government said the ACLU did not have standing to sue because they could not demonstrate that their phone records, though collected, had been examined. The catch-22--that they never really would be able to because that's classified--was avoided by quoting the 4th Amendment: "The Fourth Amendment protects against unreasonable searches and seizures" (italics in the original.)
  - CPLX 11y ago
    I noticed that as well. The plaintiffs hadn't stressed that issue, it seems to have been brought up newly by the appellate judges themselves. It's an interesting and important distinction, they essentially said that by transferring the information to a government computer the government has conducted a "seizure". That is excellent news for those of us that are opposed to these kinds of government databases. Though the supremes will have to agree before that becomes doctrine.
- jdp23 11y ago
  Here's a summary of the legal issues by Marty Lederman: http://justsecurity.org/22799/breaking-circuit-rules-section-215-authorize-telephony-bulk-collection-program/ http://justsecurity.org/22799/breaking-circuit-rules-section... And Marcy Wheeler's got some excerpts as well: https://www.emptywheel.net/2015/05/07/2nd-circuit-rules-phone-dragnet-exceeds-section-215/ https://www.emptywheel.net/2015/05/07/2nd-circuit-rules-phon...
diafygi 11y ago
The actual judgment: http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf From the ruling: > Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments. It appears that the government is starting to lose the ability to always dismiss constitutional rights abused on "state secrets" grounds. Which is great! Finally, we can actually start to hear the real legal justifications for these mass surveillance programs and watch them start to crumble when they are put forward in a adversarial court. However, organizations like the ACLU and the EFF need funding to be able to dismantle these illegal programs. I recommend signing up for a monthly recurring donation of $19.84. https://www.aclu.org/donate/ https://www.aclu.org/donate/ Also, this will give significant weight to the Fight 215 coalition (https://fight215.org https://fight215.org), which this ruling is directly related to.
- Istof 11y ago
  How do you explain this from a few days ago: http://motherboard.vice.com/read/one-of-the-biggest-privacy-wins-in-recent-memory-has-been-reversed http://motherboard.vice.com/read/one-of-the-biggest-privacy-... ?
  - schoen 11y ago
    There was no state secrets assertion in that case and the court decided it on constitutional grounds (under which the government won) rather than statutory grounds (like here, under which the government lost). Davis: there's no fourth amendment obstacle to the government getting cellphone location data (of particular people) Clapper: the government's interpretation of part of the Patriot Act's supposedly allowing it to easily get everyone's phone calling records is mistaken I guess the fact that Davis undermines our privacy rights and Clapper protects them might seem incongruous if you expect a nationwide trend of all Federal courts either protecting or failing to protect privacy. But these were two different courts in different parts of the country applying different legal theories to different legal questions, not just something like "is privacy good?" or "is government surveillance out of control/sketchy/terrifying?".
- 11y ago
MrZongle2 11y ago
This is a wonderful bit of news, but I fail to see how it will change anything. The spymasters will cry "terrorism!" and Congress will either be bought or intimidated into submission. Again.
- a3n 11y ago
  They don't even need to be bought or intimidated. Both sides see terrorism and other conflict with glee. Republicans can exploit fear of others and hatred to perpetuate themselves in office. Democrats can exploit fear and hatred of Republicans and the government to perpetuate themselves in office.
ck2 11y ago
Pretty sure they are going to keep doing it anyway.
toyg 11y ago
Now it would be the right time to ask for a presidential pardon for Edward Snowden. Now that candidates are gearing up their campaign platforms, it would be a great vote winner both on the left and on the (libertarian) right. If you live in a "defining primary" state, please go and ask the candidates as soon as they show up.
- wehadfun 11y ago
  We may be glad with what he did but do we want to encourage this type of thing? I think quietly "being nice" to him is fine but a public pardon, a welcome hope party, adoring media coverage may inspire some idiot to be the next Snowden and we probably do not want that.
  - chippy 11y ago
    >do we want to encourage this type of thing? Whistleblowing?
    - msandford 11y ago
      As far as I can tell he did it exactly right. Tried to escalate but not the point of causing trouble and getting fired. Took a bunch of documents and released them not straight out, but to journalists who had an opportunity to redact things that might directly endanger lives (like names of agents, etc). > do we want to encourage this type of thing? So long as the government tries to do things in secret that are illegal, yes, we do want to encourage this type of thing. The alternative is that eventually you have "turn key tyranny" where the apparatus is also used to suppress dissent and the government REALLY takes over.
  - primroot 11y ago
    "We" is too many people.
  - scott_karana 11y ago
    Unlike the arguable Manning, Snowden had a deliberate, slow, controlled release of information. No informants were exposed; et cetera. What is wrong with responsible whistleblowing of unlawful activity? I think it should be encouraged!
zmanian 11y ago
Key thoughts. It is always important to remember that the Section 215 progam is not a significant authority under which the government conducts surveillance on US citizens. The metadata program is a little used program and the data is not co-mingled with the larger XKeyScore dataset. As a result, the IC does not fight as hard to protection Section 215 authority as it does more significant surveillance authorities. Because the Section 215 authority is expiring, the IC has every opportunity via the Freedom Act to create stronger statutory authorities under the guise of reform. Straight expiration of the abuse 215 authority is the strongest reform message.
- jdp23 11y ago
  Very much agree about the USA Freedom Act being an opportunity for the intelligence community to get more power. Marcy Wheeler had several examples a few days ago: https://www.emptywheel.net/2015/05/06/the-goodies-usa-f-redux-gives-the-intelligence-community/ https://www.emptywheel.net/2015/05/06/the-goodies-usa-f-redu... The Surveillance State Repeal Act would be an even stronger reform than straight expiration. http://www.huffingtonpost.com/2015/03/24/surveillance-state-repeal-act_n_6935632.html http://www.huffingtonpost.com/2015/03/24/surveillance-state-...
simpsond 11y ago
Does anyone know how this will be enforced?
- Dirlewanger 11y ago
  It will most likely be repealed, thus sending it up to the Supreme Court's docket. Very exciting.
guelo 11y ago
Is Snowden a whistleblower now?
- wheregotla 11y ago
  he's just a "29 year-old hacker"
ra1n85 11y ago
That it took this long and came this close is concerning. I can't help but feel this is just theater.
- AnimalMuppet 11y ago
  If it was just theater, it wouldn't have been ruled this way (unless your fear is that it will be overturned on a Supreme Court appeal, or that Congress will specifically authorize this).
jstalin 11y ago
Read the concurring opinion from Judge Sack. He calls into question the entire FISA court's non-adversarial process, comparing it to the proceedings against the New York Times during the Pentagon Papers era: His concurring opinion starts at page 98. http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18b-410f-bc84-dc405525f9cd/1/doc/14-42_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18b-410f-bc84-dc405525f9cd/1/hilite/ http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18...
- CPLX 11y ago
  Agreed, his part is fascinating, and of a completely different tone than the rest and your usual appellate court decisions with their narrowly drawn exactitudes. His reads more like an essay than a legal opinion in places. And yes, he is essentially saying that the FISA court is fundamentally flawed as it does not allow for all relevant parties to have their arguments heard.
craigching 11y ago
Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. Just dripping with hubris! I am just gobsmacked at the audacity of such a claim.
alxndresp 11y ago
What about all the internet data they are collecting?
johnchristopher 11y ago
Question to americans: could that be seen as a sign that someday Snowden may come back to the USA ?
- LLWM 11y ago
  He can return anytime, as long as he doesn't mind facing trial for the crimes he has committed.
  - johnchristopher 11y ago
    Wouldn't his crimes be judged less harshly considering this new turn of events? I remember elected people publicly asking for his death in interviews last year.
    - LLWM 11y ago
      It doesn't matter how he is judged, he will be pardoned.
matheweis 11y ago
While this outcome is encouraging, any other outcome from this case would have been absolutely shocking. Even the actual author of the "Patriot Act" is on the record that section 215 is being interpreted incorrectly: http://venturebeat.com/2013/06/06/nsa-patriot-act/ http://venturebeat.com/2013/06/06/nsa-patriot-act/
declan 11y ago
Today's ruling should be a lesson for future NSA/CIA/DOD/FBI/etc. leakers: get your hands on those original documents. Telling reporters about illegal activity, without those documents, isn't enough. We've known about the NSA's illegal domestic surveillance of Americans' phone records via leaks for almost a decade. USA Today disclosed it in May 2006, and there were congressional hearings, etc. (I wrote about it for CNET at the time as well): http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.htm http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.h... But it wasn't until Edward Snowden leaked the actual secret court orders -- which the executive branch was forced to acknowledge were legitimate -- that the lawsuits could be filed, which resulted in today's ruling that the domestic surveillance is illegal. (The court held that NSA's phone "metadata program exceeds the scope of what Congress has authorized and therefore violates §215.") Three other thoughts: * What's been made public about the Patriot Act 215 metadata program refers only to metadata collection of Americans' phone calls. There's no reason to think that 215 domestic surveillance is limited to phone calls -- phone companies including VZ, AT&T, etc. rolled over for the Feds on phone metadata. Why wouldn't they turn over email metadata as well? (DOJ previously confirmed that 215 "has been used to obtain driver's license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.") http://www.justice.gov/nsd/justice-news-0 http://www.justice.gov/nsd/justice-news-0 * DNI James Clapper lied to Congress about the existence of NSA's 215 phone metadata vacuum. I wonder how things would have turned out differently if he had told the truth? (On the other hand, he never got fired for it and still has his job.) * Now that an appeals court has ruled that NSA illegally used Patriot Act 215 to vacuum up Americans' phone metadata, I guess we don't need to worry about renewing it?
xnull6guest 11y ago
Section 709 on email and internet traffic untouched, though.
mckoss 11y ago
ACLU Response https://www.youtube.com/watch?v=_q83Y5nyOSE https://www.youtube.com/watch?v=_q83Y5nyOSE
fotoblur 11y ago
A few questions this raises for me. If the government does something illegal who is held accountable? Also, where does this leave Snowden? He essentially blew the whistle on a program finally deemed illegal.

653 points by dnewms 11y ago

Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? Isn't the whole point of a constitutional challenge to address things illegal things authorized by the government?

delinka 11y ago
Seems to me the lawyers would attempt to throw noodles at the wall until something sticks. The "authorized by Congress" noodle stuck to the wall of the lower court. A higher court told them they needed to have cleaned their walls first. Whether the lower court should have accepted the "authorized by Congress" argument is another matter, but the reason might be that the judge agreed. Or maybe he didn't feel convinced by the challenger's arguments. Or maybe he was having a bad day. I hope it wasn't the latter. Anyway, this is why the appeals system even exists - seems to be working.
- nolok 11y ago
  Or, given the case at hand, they had some things on him he didn't want "leaked". Might sound paranoid, but that is one of the core reasons why such systems are so bad, right ?
  - a3n 11y ago
    Exactly right. And the fact that such tin-hat conversations are at all credible (reality or not) today is an indication that someone has fucked up, very badly and very existentially. We just can't take seriously any statement made by spies, whether they're false or true. Even statements that are provably true have a good chance at being in front of a bad motive. They game others as their day job, after all.
constichallenge 11y ago
An action by a federal agency can be constitutionally challenged as being outside of the scope or powers granted to that agency by congress. The constitutional challenge thus would be that the agency is operating outside of the checks and balances system the constitution lays out. Congress has in the past and can today authorize agencies to do things like collect data on US citizens for national security purposes or public safety purposes.
- mikecb 11y ago
  What you describe is a statutory challenge. A constitutional challenge would be that the statute authorizing the conduct went beyond the enumerated powers in the Constitution, or that the conduct went beyond the President's inherent Article II authorities, or that it violated rights protected by the Bill of Rights. That someone is violating checks and balances isn't really a cause of action; you would be more specific in your case.
mikecb 11y ago
The constitutional challenge was dismissed because it was found to be constitutional under existing jurisprudence. See discussion in the lower court's memorandum opinion and order starting on the bottom of page 38[1]. Smith v. Maryland, abridged, said that we have no privacy interest in the metadata sent to a third party in order to complete a call. In the words of 4th amendment jurisprudence, we don't have a reasonable expectation of privacy in items we voluntarily disclose to third parties. As such, the collection of this information by the government is not a search for 4th amendment purposes, and therefore falls entirely outside 4th amendment protection. THE ACLU's constitutional argument is a novel one that has not yet become binding precedent on lower courts, call the mosaic theory, though it is gaining ground in some recent Supreme Court decisions. See Orin Kerr's paper on this theory of a search.[2] [1] (pdf warning) https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_denying_aclu_motion_for_preliminary_injunction.pdf https://www.aclu.org/files/assets/order_granting_governments... [2](pdf warning) http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1079&context=mlr http://repository.law.umich.edu/cgi/viewcontent.cgi?article=...
- a3n 11y ago
  > In the words of 4th amendment jurisprudence, we don't have a reasonable expectation of privacy in items we voluntarily disclose to third parties. I would hope that thinking on this evolves, to the point that we have a reasonable expectation that information we've voluntarily disclosed to a third party stays between us and that third party. Because that is exactly my personal expectation, notwithstanding my other expectation that it will be violated.
  - mikecb 11y ago
    Mosaic theory doesn't go that far, but in the age of widespread statistical inference, it is an important development. Generally speaking, the public is entitled to all evidence. Certain rights, such as the Fifth amendment, protect you from being compelled to testify against yourself, but you have no right to prevent, nor does anyone else have the right to refuse, to testify against or about you, except for a very small and declining set of common law privileges, and even those only apply in certain circumstances.
ksherlock 11y ago
That's why it's going back to be reviewed but it's not why it was dismissed in the first place. The government asked for dismissal because 1: The ACLU lacks standing (denied) 2: Sovereign Immunity (upheld but reversed) 3: Bulk collection was authorized by congress (upheld but reversed) 4: bulk collection does not violate 4th or 1st amendments (upheld) tl;dr: Court: Authorized by congress and constitutional. Appeals Court: Not authorized by congress, therefore we can ignore any constitutional aspects of it. https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_denying_aclu_motion_for_preliminary_injunction.pdf https://www.aclu.org/files/assets/order_granting_governments... http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf
jakewalker 11y ago
There is a doctrine called "constitutional avoidance" - if a court can decide a case on grounds without reaching a constitutional question (particularly a close question), it ought to decide the case on the alternative grounds and avoid the constitutional question. So, for example, a court might say: This action was improper because it was not authorized by Congress. That is all we need to decide. Because we made this decision, we don't need to reach the constitutional question. Of course, if Congress had authorized this action (or now does so), and this case is back before us, we will no longer be able to take that path. We may, at that time, decide that the congressionally-authorized action is unconstitutional. But because there is no need to do reach that decision at this time, we decline to do so. Read more here: http://en.wikipedia.org/wiki/Constitutional_avoidance http://en.wikipedia.org/wiki/Constitutional_avoidance
dragonwriter 11y ago
> Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? The Constitutional limits on what the executive can do on its own authority are different than the Constitutional limits on what the Congress can authorize the Executive to do. So, its quite possible that "it was authorized by Congress" could be a decisive consideration in a case challenging an executive action as unconstitutional.

a3n 11y ago

Pre-Snowden, I wonder if the ruling would have been different. Back then the judges would only know what was presented to them. The government would have obviously presented in a way that was most favorable to them, and their opposition would not have access to crucial evidence. Now that the cat shit is out of the bag, judges and everyone else have more background to evaluate what's in front of them. The government would still present in a way favorable to them. But a judge would now more fully understand the significance of what's presented to him. We live in the world, and we bring our entire experience to bear when we evaluate. Thank you Snowden. Fuck you NSA.

zwtaylor 11y ago
There probably wouldn't have been a ruling at all. The court itself states that Snowden was the principle catalyst for this case to ever go to court in the first place. From the judgement: "Americans first learned about the telephone metadata program that appellants now challenge on June 5, 2013, when the British newspaper The Guardian published a FISC order leaked by former government contractor Edward Snowden".
kordless 11y ago
> Thank you Snowden. Fuck you NSA. I'm going to turn that into a sticker and stick it on my laptop.
- patzerhacker 11y ago
  Bring back the "This Machine Kills Fascists" sticker for laptops as well!
- sharpasand 11y ago
  please make more then 1, i'll buy from you.
  - niels_olson 11y ago
    Better, make a script that sends that back as a packet to every government IP that attempts a connection with your computer. Eventually, somebody is going to look at a logfile.

higherpurpose 11y ago

What does this mean for: 1) the Patriot Act's renewal/new bills to extend/enhance it 2) the USA Freedom Act Is the USA Freedom Act "compatible" with this decision, or does it allow the NSA to do some things that the Court here has just banned?

ceejayoz 11y ago
Essentially nothing, until these cases make their way to the Supreme Court.
Shivetya 11y ago
more rules specifically allowing this behavior will have to be written into the bills. the specific ruling did not rest on the 4th Amendment but instead what was written into the Patriot Act which means, amend the Patriot Act and its back to court to try for a Constitutional issue

rev_bird 11y ago

Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?

kazazes 11y ago
I have faith in the power of the judiciary, still. While putting illegal surveillance programs to bed may feel like a half century long game of wack-a-mole, precedent still has power in American courts.
cryoshon 11y ago
Eh, cheer up. Sure, the intelligence agencies will do their best to lie and hide from Congress, but every time they do so, it is one step closer to the hammer coming down onto them and their funding being slashed.
- MrZongle2 11y ago
  Sorry to add to the downer chorus, but I think that would require a majority in both houses to exhibit some integrity and a desire to wield Congressional power. I don't see that happening. Obstructionism, pandering, lobbying and abdication of responsibility? Oh, we've got that in spades.
  - ericcumbee 11y ago
    Not to be a double downer, I don't see the current president signing anything that would limit executive power so it would take 2/3rds of both houses to override a veto.
    - gknoy 11y ago
      I concur, with the slight modification: s/current/any/; Not only that, but any bill that successfully passed could, given past history by several presidents, be effectively ignored via executive order.

a3n 11y ago

I'm sure the NSA is laughing at the judge and his decision. "How many divisions does he have? Bwa-ha-ha-ha." https://en.wikiquote.org/wiki/Joseph_Stalin https://en.wikiquote.org/wiki/Joseph_Stalin

AnimalMuppet 11y ago
NSA employees go home at night. They are subject to arrest when they do, if the courts need to go that far.
- a3n 11y ago
  How would you know who they are? I think their govt IDs identify them as DoD employees, not specifically NSA.
- TallGuyShort 11y ago
  Technically, it's possible. Practically, I think it's extremely unlikely that a law enforcement officers will request, and that a judge will approve warrants to arrest individual members of the security services, and that those members won't just mysteriously get out of jail a few hours later, and that a politician won't figure out a way to BandAid the inconvenience within weeks.
peterlvilim 11y ago
That statement ended up proving to be quite ironic: https://en.wikipedia.org/wiki/Pope_John_Paul_II#Role_in_the_fall_of_Communism https://en.wikipedia.org/wiki/Pope_John_Paul_II#Role_in_the_...

kylelibra 11y ago

Here's the actual decision: http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf Concurrence by Judge Sack: https://www.aclu.org/sites/default/files/field_document/clapper-ca2-sack-concurrence.pdf https://www.aclu.org/sites/default/files/field_document/clap... Here's what struck me as the most interesting comment from Sack - "Considering the issue of advocacy in the context of deliberations involving alleged state secrets, and, more broadly, the ʺleakʺ by Edward Snowden that led to this litigation, calls to mind the disclosures by Daniel Ellsberg that gave rise to the legendary ʺPentagon Papersʺ litigation."

ganeumann 11y ago
Love the analysis of standing. The government said the ACLU did not have standing to sue because they could not demonstrate that their phone records, though collected, had been examined. The catch-22--that they never really would be able to because that's classified--was avoided by quoting the 4th Amendment: "The Fourth Amendment protects against unreasonable searches and seizures" (italics in the original.)
- CPLX 11y ago
  I noticed that as well. The plaintiffs hadn't stressed that issue, it seems to have been brought up newly by the appellate judges themselves. It's an interesting and important distinction, they essentially said that by transferring the information to a government computer the government has conducted a "seizure". That is excellent news for those of us that are opposed to these kinds of government databases. Though the supremes will have to agree before that becomes doctrine.
jdp23 11y ago
Here's a summary of the legal issues by Marty Lederman: http://justsecurity.org/22799/breaking-circuit-rules-section-215-authorize-telephony-bulk-collection-program/ http://justsecurity.org/22799/breaking-circuit-rules-section... And Marcy Wheeler's got some excerpts as well: https://www.emptywheel.net/2015/05/07/2nd-circuit-rules-phone-dragnet-exceeds-section-215/ https://www.emptywheel.net/2015/05/07/2nd-circuit-rules-phon...

diafygi 11y ago

The actual judgment: http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf From the ruling: > Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments. It appears that the government is starting to lose the ability to always dismiss constitutional rights abused on "state secrets" grounds. Which is great! Finally, we can actually start to hear the real legal justifications for these mass surveillance programs and watch them start to crumble when they are put forward in a adversarial court. However, organizations like the ACLU and the EFF need funding to be able to dismantle these illegal programs. I recommend signing up for a monthly recurring donation of $19.84. https://www.aclu.org/donate/ https://www.aclu.org/donate/ Also, this will give significant weight to the Fight 215 coalition (https://fight215.org https://fight215.org), which this ruling is directly related to.

Istof 11y ago
How do you explain this from a few days ago: http://motherboard.vice.com/read/one-of-the-biggest-privacy-wins-in-recent-memory-has-been-reversed http://motherboard.vice.com/read/one-of-the-biggest-privacy-... ?
- schoen 11y ago
  There was no state secrets assertion in that case and the court decided it on constitutional grounds (under which the government won) rather than statutory grounds (like here, under which the government lost). Davis: there's no fourth amendment obstacle to the government getting cellphone location data (of particular people) Clapper: the government's interpretation of part of the Patriot Act's supposedly allowing it to easily get everyone's phone calling records is mistaken I guess the fact that Davis undermines our privacy rights and Clapper protects them might seem incongruous if you expect a nationwide trend of all Federal courts either protecting or failing to protect privacy. But these were two different courts in different parts of the country applying different legal theories to different legal questions, not just something like "is privacy good?" or "is government surveillance out of control/sketchy/terrifying?".
11y ago

MrZongle2 11y ago

This is a wonderful bit of news, but I fail to see how it will change anything. The spymasters will cry "terrorism!" and Congress will either be bought or intimidated into submission. Again.

a3n 11y ago
They don't even need to be bought or intimidated. Both sides see terrorism and other conflict with glee. Republicans can exploit fear of others and hatred to perpetuate themselves in office. Democrats can exploit fear and hatred of Republicans and the government to perpetuate themselves in office.

ck2 11y ago

Pretty sure they are going to keep doing it anyway.

toyg 11y ago

Now it would be the right time to ask for a presidential pardon for Edward Snowden. Now that candidates are gearing up their campaign platforms, it would be a great vote winner both on the left and on the (libertarian) right. If you live in a "defining primary" state, please go and ask the candidates as soon as they show up.

wehadfun 11y ago
We may be glad with what he did but do we want to encourage this type of thing? I think quietly "being nice" to him is fine but a public pardon, a welcome hope party, adoring media coverage may inspire some idiot to be the next Snowden and we probably do not want that.
- chippy 11y ago
  >do we want to encourage this type of thing? Whistleblowing?
  - msandford 11y ago
    As far as I can tell he did it exactly right. Tried to escalate but not the point of causing trouble and getting fired. Took a bunch of documents and released them not straight out, but to journalists who had an opportunity to redact things that might directly endanger lives (like names of agents, etc). > do we want to encourage this type of thing? So long as the government tries to do things in secret that are illegal, yes, we do want to encourage this type of thing. The alternative is that eventually you have "turn key tyranny" where the apparatus is also used to suppress dissent and the government REALLY takes over.
- primroot 11y ago
  "We" is too many people.
- scott_karana 11y ago
  Unlike the arguable Manning, Snowden had a deliberate, slow, controlled release of information. No informants were exposed; et cetera. What is wrong with responsible whistleblowing of unlawful activity? I think it should be encouraged!

zmanian 11y ago

Key thoughts. It is always important to remember that the Section 215 progam is not a significant authority under which the government conducts surveillance on US citizens. The metadata program is a little used program and the data is not co-mingled with the larger XKeyScore dataset. As a result, the IC does not fight as hard to protection Section 215 authority as it does more significant surveillance authorities. Because the Section 215 authority is expiring, the IC has every opportunity via the Freedom Act to create stronger statutory authorities under the guise of reform. Straight expiration of the abuse 215 authority is the strongest reform message.

jdp23 11y ago
Very much agree about the USA Freedom Act being an opportunity for the intelligence community to get more power. Marcy Wheeler had several examples a few days ago: https://www.emptywheel.net/2015/05/06/the-goodies-usa-f-redux-gives-the-intelligence-community/ https://www.emptywheel.net/2015/05/06/the-goodies-usa-f-redu... The Surveillance State Repeal Act would be an even stronger reform than straight expiration. http://www.huffingtonpost.com/2015/03/24/surveillance-state-repeal-act_n_6935632.html http://www.huffingtonpost.com/2015/03/24/surveillance-state-...

simpsond 11y ago

Does anyone know how this will be enforced?

Dirlewanger 11y ago
It will most likely be repealed, thus sending it up to the Supreme Court's docket. Very exciting.

guelo 11y ago

Is Snowden a whistleblower now?

wheregotla 11y ago
he's just a "29 year-old hacker"

ra1n85 11y ago

That it took this long and came this close is concerning. I can't help but feel this is just theater.

AnimalMuppet 11y ago
If it was just theater, it wouldn't have been ruled this way (unless your fear is that it will be overturned on a Supreme Court appeal, or that Congress will specifically authorize this).

jstalin 11y ago

Read the concurring opinion from Judge Sack. He calls into question the entire FISA court's non-adversarial process, comparing it to the proceedings against the New York Times during the Pentagon Papers era: His concurring opinion starts at page 98. http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18b-410f-bc84-dc405525f9cd/1/doc/14-42_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18b-410f-bc84-dc405525f9cd/1/hilite/ http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18...

CPLX 11y ago
Agreed, his part is fascinating, and of a completely different tone than the rest and your usual appellate court decisions with their narrowly drawn exactitudes. His reads more like an essay than a legal opinion in places. And yes, he is essentially saying that the FISA court is fundamentally flawed as it does not allow for all relevant parties to have their arguments heard.

craigching 11y ago

Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. Just dripping with hubris! I am just gobsmacked at the audacity of such a claim.

alxndresp 11y ago

What about all the internet data they are collecting?

johnchristopher 11y ago

Question to americans: could that be seen as a sign that someday Snowden may come back to the USA ?

LLWM 11y ago
He can return anytime, as long as he doesn't mind facing trial for the crimes he has committed.
- johnchristopher 11y ago
  Wouldn't his crimes be judged less harshly considering this new turn of events? I remember elected people publicly asking for his death in interviews last year.
  - LLWM 11y ago
    It doesn't matter how he is judged, he will be pardoned.

matheweis 11y ago

While this outcome is encouraging, any other outcome from this case would have been absolutely shocking. Even the actual author of the "Patriot Act" is on the record that section 215 is being interpreted incorrectly: http://venturebeat.com/2013/06/06/nsa-patriot-act/ http://venturebeat.com/2013/06/06/nsa-patriot-act/

declan 11y ago

Today's ruling should be a lesson for future NSA/CIA/DOD/FBI/etc. leakers: get your hands on those original documents. Telling reporters about illegal activity, without those documents, isn't enough. We've known about the NSA's illegal domestic surveillance of Americans' phone records via leaks for almost a decade. USA Today disclosed it in May 2006, and there were congressional hearings, etc. (I wrote about it for CNET at the time as well): http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.htm http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.h... But it wasn't until Edward Snowden leaked the actual secret court orders -- which the executive branch was forced to acknowledge were legitimate -- that the lawsuits could be filed, which resulted in today's ruling that the domestic surveillance is illegal. (The court held that NSA's phone "metadata program exceeds the scope of what Congress has authorized and therefore violates §215.") Three other thoughts: * What's been made public about the Patriot Act 215 metadata program refers only to metadata collection of Americans' phone calls. There's no reason to think that 215 domestic surveillance is limited to phone calls -- phone companies including VZ, AT&T, etc. rolled over for the Feds on phone metadata. Why wouldn't they turn over email metadata as well? (DOJ previously confirmed that 215 "has been used to obtain driver's license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.") http://www.justice.gov/nsd/justice-news-0 http://www.justice.gov/nsd/justice-news-0 * DNI James Clapper lied to Congress about the existence of NSA's 215 phone metadata vacuum. I wonder how things would have turned out differently if he had told the truth? (On the other hand, he never got fired for it and still has his job.) * Now that an appeals court has ruled that NSA illegally used Patriot Act 215 to vacuum up Americans' phone metadata, I guess we don't need to worry about renewing it?

xnull6guest 11y ago

Section 709 on email and internet traffic untouched, though.

mckoss 11y ago

ACLU Response https://www.youtube.com/watch?v=_q83Y5nyOSE https://www.youtube.com/watch?v=_q83Y5nyOSE

fotoblur 11y ago

A few questions this raises for me. If the government does something illegal who is held accountable? Also, where does this leave Snowden? He essentially blew the whistle on a program finally deemed illegal.