
N.S.A. Phone Surveillance Is Lawful, Federal Judge Rules - philfreo
http://www.nytimes.com/2013/12/28/us/nsa-phone-surveillance-is-lawful-federal-judge-rules.html
======
pvnick
What does a broken record sound like? Read the first line of the ruling:
[http://i.imgur.com/y8LZQUM.png](http://i.imgur.com/y8LZQUM.png)

~~~
x0054
A quote from Benjamin Franklin comes to mind: Those who would give up
essential liberty to purchase a little temporary safety deserve neither
liberty nor safety.

~~~
codex
In what way have my liberties been reduced? On the ground, nothing has
changed. Now five organizations have my metadata instead of four.

~~~
praxulus
I think the government is fundamentally different than a private company or
semi-public utility. Their control of law enforcement and military forces are
the most relevant here.

~~~
chris_mahan
Which is why the Bill of Rights in the Constitution is so important, because
there is no way for the citizenry to force the government to act or not act.
The armed forces and law enforcement swear to uphold the Constitution for that
reason.

~~~
ballard
The last bit is the key point. There is zero accountability: it's asking the
fox to guard the hen house. Mumbling words soon forgotten that can't be said
with a straight face.

In short: it's a real accountability gap by the people that preach ostensible
"accountability" and "transparency."

USG needs a 4th branch made of veterans, privacy and industry leaders (people
that are both sharp and straight shooters) that have total access to surprise
audit, defund and compel changes to any secret program. The only goal is to
change behavior to "I probably shouldn't do [horrible thing] because [people
more powerful than my CO/president] will find out." Even if it's just a phony
whitehouse press release by the Yes Men.

------
noarchy
Those of you who want a political answer to this surveillance problem should
pay attention when these things happen. This is your system, in a nutshell.
The legislators, judges, law enforcement officials, etc, are all in on this.
Don't wait for the president or prime minister to change things. That won't
happen. You'll have to take your security into your own hands to the greatest
extent possible. This will including learning to adapt once your government
inevitably outlaws your favourite means of protecting your security and
privacy.

~~~
rtpg
Maybe you should try to be less myopic on these things when paying attention
though. Historically both the judicial and the legislative system have slowly
pushed back on unchecked executive privilege. Before FISA, the executive could
basically spy on any foreigner for any reason without any reason given to the
other branches. Congress pushed back, putting into place the Senate
Intelligence committee.

The problem isn't that all branches are in on it, it's that they aren't. There
isn't communication between the three branches, so when the gory details get
revealed ,be it Hoover's FBI antics, Nixon's abuses, or now, the NSA's
eagerness, other branches fight back.

If you look at laws regarding privacy historically, there's a general tendency
for more, not less. One step back doesn't invalidate a whole system.

~~~
noarchy
We're in a new era of surveillance, where Nixon's abuses look like schoolyard
pranks compared to what governments are doing today. Even the excesses of
Hoover's FBI can't touch what is being done now. Considering how little (read:
next to nothing) was done about those past excesses, it won't shock me to see
nothing at all done about those conducted in the present-day. We've seen
legislatures, presidents, and courts all lining up on the same page, with more
than enough rubber-stamping to go around. Creating oversight bodies means
another set of rubber stamps.

------
tokenadult
As there are more trial court decisions on the NSA programs, it appears that
there will be a split in results of those decisions among various trial
courts. Those decisions can be appealed to the federal circuit appellate
courts, where there may again be a split among the decisions. A circuit
split[1] on an important issue of federal law, especially constitutional law,
is one of the most reliable ways to prompt consideration of an issue by the
United States Supreme Court. That court will have the last word[2] on this
issue.

[1]
[https://en.wikipedia.org/wiki/Circuit_split](https://en.wikipedia.org/wiki/Circuit_split)

[2] "We are not final because we are infallible, but we are infallible only
because we are final." A saying by Justice H. Jackson.

[https://en.wikipedia.org/wiki/Robert_H._Jackson](https://en.wikipedia.org/wiki/Robert_H._Jackson)

~~~
jacobheller
For what it's worth, even if there were no circuit split (i.e., even if the
courts of appeals in both cases agree), the Court does often take cases that
are of great national importance. This would certainly qualify.

------
tedivm
> "Judge Pauley said that protections under the Fourth Amendment do not apply
> to records held by third parties, like phone companies."

The thing I don't get is why the NSA is considered a third party here. It's
not the phone companies keeping the records, it's the NSA, so I honestly do
not understand this ruling.

~~~
daenz
I think he's saying the phone company is the 3rd party, and so searching and
seizing from _them_ is fine, because they're not searching you directly?

I guess a physical analogy would be if you held your belongings in a 3rd party
storage unit, the judge is saying the cops should be allowed to search and
take whatever they want, because they're doing it to you through a 3rd party.

~~~
thenerdfiles
I don't get it... The Fourth Amendment Text reads:

    
    
        The right of the people to be secure in their persons, houses, 
        papers, [and effects], against unreasonable searches and 
        seizures, shall not be violated, and no Warrants shall issue, 
        but upon probable cause, supported by Oath or affirmation, 
        and particularly describing the place to be searched, and the 
        persons or things to be seized.
    

_And effects_. They're washing this term of _all_ its meaning.

That's like arguing that cops can search your apartment _if it 's being
rented_.

~~~
md224
You're aware that the Third Party Doctrine goes back to at least 1979, right?

[http://en.wikipedia.org/wiki/Smith_v._Maryland](http://en.wikipedia.org/wiki/Smith_v._Maryland)

I'm not saying the doctrine isn't in need of an update, but let's not act like
this is some weird new thing the courts just invented.

~~~
gruseom
The attorney general of Maryland who argued that case in 1979 has strongly
protested against its application to mass surveillance.

[http://www.npr.org/2013/12/21/256114227/1979-supreme-
court-r...](http://www.npr.org/2013/12/21/256114227/1979-supreme-court-ruling-
becomes-focus-of-nsa-tactics)

------
adamnemecek
> "Judge Pauley said that protections under the Fourth Amendment do not apply
> to records held by third parties, like phone companies."

Kafka would be proud.

~~~
CrunchyJams
This same justification was used for obtaining personal financial information
from bank accounts (see US v. Miller, 1976).

My problem with this line of logic is that it can be applied to anything not
owned directly by the person under surveillance. For example, let's say you
rent an apartment. Can the government force the landlord to install mics and
cameras without telling you? It's not your property, so do all of your fourth
amendment protections disappear?

~~~
pavpanchekha
Yes, they can, were it not for other laws explicitly barring them from doing
so.

------
fragsworth
This system is totally broken. The federal government receives funding to do
things that the general public despises, in secret, and then, if caught, the
courts decide the legality of it _ex post facto_.

The U.S. federal government makes far too many decisions that are no longer
accountable to the public. This is an extremely dangerous situation to be in,
and if we don't have some serious reform done then I believe we are in for a
very shitty future.

~~~
delinka
s/receives/takes from the general public the/

It's not like we have the option to starve this beast of its financial
support.

------
bushido
Links[0] to the article without a login; if you aren't subscribing to NY
times, and/or don't intend to.

[0]
[https://www.google.com/search?q=N.S.A.Phone+surveillance+is+...](https://www.google.com/search?q=N.S.A.Phone+surveillance+is+lawful%2C+Federal+Judge+Rules&oq=N.S.A.Phone+surveillance+is+lawful%2C+Federal+Judge+Rules&aqs=chrome..69i57.24352j0j4&sourceid=chrome&espv=210&es_sm=93&ie=UTF-8)

[1]
[https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&u...](https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&url=http%3A%2F%2Fwww.nytimes.com%2F2013%2F12%2F28%2Fus%2Fnsa-
phone-surveillance-is-lawful-federal-judge-
rules.html&ei=Ir69UqfCD4bL2wXJ8IHABA&usg=AFQjCNFJCwy7dnqcC0tRh8qyYf_fnrN7HQ&sig2=fakTN9RZ3rKauGyA_ym1pw&bvm=bv.58187178,d.b2I)

------
apayan
_" Technology allowed al Qaeda to operate decentralized and plot international
terrorist attacks remotely," Pauley wrote. "The bulk telephony metadata
collection program represents the government's counter-punch."_

Following this line of reasoning, as technology advances, there is no limit to
what data can be gathered in to stop "terrorism."

This ruling highlights the fact that there can be no political solution to
ending the U.S. surveillance state as long as those in power believe this or
at least find it profitable. The remedy has to be technological. Citizens need
to be encrypting all their communications to make mass surveillance
prohibitively expensive.

~~~
dcc1
.... Then the federal government increases taxes on its subjects to spend on
decryption of its subjects communications...

------
redwood
Unreal. for some perspective, from:
[https://postalinspectors.uspis.gov/contactUs/faq.aspx](https://postalinspectors.uspis.gov/contactUs/faq.aspx)

"4\. Can Postal Inspectors open mail if they feel it may contain something
illegal? First-Class letters and parcels are protected against search and
seizure under the Fourth Amendment to the Constitution, and, as such, cannot
be opened without a search warrant. If there is probable cause to believe the
contents of a First-Class letter or parcel violate federal law, Postal
Inspectors can obtain a search warrant to open the mailpiece. Other classes of
mail do not contain private correspondence, and therefore may be opened
without a warrant."

So the phone companies are a third party. The postal service is not.

~~~
thenerdfiles
The difference here is: "Can the Postal System provision X-ray systems to scan
all mail and hold a database of its scans up to 18 months to prevent unlawful
activity?"

~~~
berberous
FYI, they photograph the outside of every envelope (to/from addresses).

~~~
thenerdfiles
Yes, but _X-ray_? Sure someone might take a second look at an _envelope
photograph_ and come to the correct conclusion that something illegal is
inside — but it's already been delivered.

It's just getting back to this point of "unreasonable" and what we're
quantifying over (effects, our homes, etc.)

U.S. government is _clearly_ taking either of two paths: wash out all meaning
of "unreasonable", effectively making _the extent to which they search_
infinite in scope, and wash out all meaning of "effects" such that the scope
of what they can _search through_ becomes infinite.

~~~
berberous
I'm not sure what your point is? The issue in this case is the NSA's
collection of so called phone record "metadata", or information about who
called whom. They do not appear to store actual recorded phone calls (at least
that we know of...). That would seem analogous to the post office storing
metadata on letters (to/from/date), but not the contents. It is also analogous
in that some argue that you don't have a reasonable expectation of privacy in
such metadata.

~~~
thenerdfiles
???[0][1]

I really don't mean to be rude, but how are we not on the same page about
this?

"at least that we know of"?

They're not storing [terabytes of metadata]. They're storing [terabytes of
content _and_ metadata]. They're being accused of _domestic widespread spying_
(seizing), _not domestic widespread profiling_ (only search).

Perhaps I'm completely just not following, but is there something I'm missing?

[0]: [http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-
fla...](http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-flap-extends-
to-contents-of-u.s-phone-calls/)

[1]: [http://www.theblaze.com/stories/2013/06/29/greenwald-nsa-
can...](http://www.theblaze.com/stories/2013/06/29/greenwald-nsa-can-store-
one-billion-cell-phone-calls-every-single-day/)

~~~
berberous
Thanks for the links. I honestly have trouble remembering all the revelations
at this point, given how many there have been!

However, those links still seem to imply that the NSA does not store the
content of domestic phone calls. My point simply was that I believe the law is
still crystal clear that the warantless collection and storage of the content
of American's phone calls is unconstitutional, just as it would be illegal to
x-ray the contents of letters. I can't imagine any court disagreeing. The fact
that "metadata" on either may be legal under the third party doctrine or based
on "reasonable expectations of privacy" is much less clear due to prior
precedent, although I certainly agree with you that it should not be.

(Of course we also now know that the NSA has not been forthright about what
they actually do, or what protections are in place to ensure that they can
distinguish between domestic and international content. Indeed, it appears
that with Internet content there is woefully deficient controls to ensure that
domestic content is not stored. There is also another way they constantly chip
away at privacy: arguing that there is not a 4th amendment issue until the
content is searched, not merely indiscriminately stored.)

------
joelrunyon
Lawful ≠ Constitutional.

The patriot act made all these "legal" \- but aren't we waiting for a supreme
court decision that states that the entire collection is "unconstitutional"?

~~~
jrochkind1
What are you talking about? The constitution is the "highest law of the land".

Have you read the opinion, or even the nytimes article posted here?

> Judge Pauley said that protections under the Fourth Amendment do not apply
> to records held by third parties, like phone companies.

This judge indeed decided it was constitutional, that is in fact what "lawful"
means in this case. A different federal judge in a different district decided
it was not. Eventually the Supreme Court will probably decide, especially
becaues of the disagreement between two different federal districts, the
Supreme Court can make the final determination. (This was in the nytimes
article too). But federal district court judges can and do make decisions of
constitutional law all the time, it's not only the supreme court that can do
that, but the supreme court can overrule the lower courts.

Saying "Lawful ≠ Constitutional" just reveals you don't understand how the US
legal system works. And also didn't bother to read the article before
commenting on it. You are incorrect.

~~~
joelrunyon
Look over the checks & balances in this case[1]. He was ruling that the
collection was legal under the patriot act. However, the supreme court has the
ability to apply "judicial review" to overturn a law / act / action.

A quick perusal of wikipedia should help.

[http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_...](http://en.wikipedia.org/wiki/Checks_and_balances#Checks_and_balances)

~~~
dragonwriter
> He was ruling that the collection was legal under the patriot act.

No, he was ruling that it was Constitutional under the Fourth Amendment. There
were also claims under statutory rules, but they were dismissed on procedural
grounds (specifically, that they were subject to soveriegn immunity and the
claims, regardless of the merits, did not fit within the scope of
Congressional waivers of that immunity.)

> However, the supreme court has the ability to apply "judicial review" to
> overturn a law / act / action.

Judicial review is not a unique power of the Supreme Court -- every federal
court reviews actions against the federal Constitution (which is, after all,
the highest federal law) routinely, and exercises the power of judicial
review. The Supreme Court's only special role with regard to judicial review
is the same as its special role on every other issue -- its the _last_ answer
in the judicial system, as there is no higher court to appeal to.

------
irishmoss
I can't imagine how the Justice Sotomayor could have been any more clear in
this issue:

    
    
      I would not assume that all information voluntarily disclosed
      to some member of the public for a limited purpose is, 
      for that reason alone, disentitled to Fourth Amendment protection. 
      [citations omitted] 
      Resolution of these difficult questions in this case is unnecessary, 
      however, because the Government's physical intrusion on Jones' Jeep 
      supplies a narrower basis for decision.
    

[http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf](http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf)

When Ginsburg, Breyer, and Kagan feel surveillance is so obviously
unconstitutional as to provide an even narrower basis than _actual
trespassing_ , and Sotomayor writes a separate opinion for the sole purpose of
conveying she'd be the 4th vote, I find it hard to imagine how any judge could
uphold this surveillance in good faith.

------
jacobheller
For the lazy, here's the full text of the opinion on Casetext:
[https://casetext.com/case/aclu-v-clapper/](https://casetext.com/case/aclu-v-
clapper/)

------
aryastark
Who cares what is legal/illegal. That's missing the point. Under the PATRIOT
Act raping and torturing infants is legal[1]. When corrupt politicians make
corrupt laws, the only thing that should matter is what is morally correct. Or
to quote John Oliver of the Daily Show,

> I think you're misunderstanding the perceived problem here, Mr. President.
> No one is saying you broke any laws. We're just saying it's a little bit
> weird that you didn't have to.

[1] probably.

~~~
InclinedPlane
I understand that you're angry and frustrated but don't make arguments like
this. Do you think you're convincing anybody with these preposterous
statements? Do you think someone who is unconvinced that the PATRIOT Act is
bad would read what you are saying and be astonished at the idea that it makes
raping and torturing infants legal, then be spurred to change their mind and
take action to oppose it?

There's no need to make up bullshit about the PATRIOT Act, to exaggerate its
effects, or to engage in histrionics. Those things weaken your case in the
eyes of the people who you most want to convince. Don't exaggerate, don't use
hyperbole, don't lie, don't be immature, make the strongest case possible and
back it with facts.

~~~
aryastark
Thanks for the downvote. Didn't realize I was on reddit.

> Don't exaggerate, don't use hyperbole, don't lie, don't be immature,

I did none of those things. I used a device called humor. Perhaps you have
none. I'm sorry. I did quote the Daily Show, after all.

Thanks to you, InclinedPlane, I will never make another PATRIOT Act joke.
Thank you for informing me on how to use my Freedom Speech.

~~~
alan_cx
HN does NOT do humour.

Well, unless its embedded in code, then its like fecking hilarious.

------
ballard
Sure, Your Honor, and what about JSOC assassinating American citizens. Why
even bother with warrants or legal process the rest of the time? Throw it all
away. Just let the executive branch do whatever the fuck they like (contrary
to the intention of separations of powers) with their own mercenary army
that's beyond the law. The only problem then is why should anyone respect the
law if said executive branch doesn't?

------
coldcode
Hopefully SCOTUS will say something else, but I'm not holding my breath.
Eventually the content of the phone calls will also be found to be not private
as we are using a 3rd party to communicate, so in the end all electronic
communication will thus be available for recording and interpretation legally
by the government. What kind of world that will be is unknown, but it won't be
one anyone wants to live in.

------
atmosx
I am curious about what % of Americans consider this a _real issue_ vs those
who _just don 't care_.

Of course HN is a tech community, understands the repercussions and it's very
sensitive on the matter.

I am asking because we're possibly facing a huge (maybe the biggest) gap
between voters and government here.

------
uptown
If that's how the law works - guess it's time to abandon all cloud-based
services. There's seemingly zero protection for anything hosted by a 3rd
party.

~~~
thenerdfiles
Even further: it seems like we have to abandon all proprietary formats. What
is a record is not something you technically own. Your _idea_ or _concept_ is
codified in the record.

What's that saying?: _Files are a myth_.

------
err4nt
Reminds me of this quote from our favorite space saga:

[http://www.youtube.com/watch?v=nz20lu2AM2k](http://www.youtube.com/watch?v=nz20lu2AM2k)

------
nilved
Why does anybody care what the judge thinks? Use Tor and crypto and tell them
to fuck themselves.

------
yogsohedthren
Do we, as the creators of this data, not retain IP rights over it? Are we
unable to use the laws written by the other big cartel against the promiscuous
use of it?

------
Kinnard
Done.

------
thenerdfiles
> "Judge Pauley said that protections under the Fourth Amendment do not apply
> to records held by third parties, like phone companies."

Okay, so then when I download an MP3 it's not theft because I didn't actually
deprive the artist of their source files.

~~~
thenerdfiles
They're totally exploiting the fact that the legal system is so huge, no one
organization can keep track of all of these conceptual inconsistencies.

Where's [http://groklaw.net](http://groklaw.net) when you need it?

~~~
chris_mahan
Sadly, groklaw.net apparently went down exactly because it was unable to
insure the privacy of its communications once it discovered the extant of the
NSA data collection.

So if we are unable to communicate privately, is there any privacy left?

~~~
codex
No, Groklaw is a freak show which used a flimsy excuse to shut down for
reasons unknown.

