
DC appeals court lifts injunction against NSA phone records program - Clanan
http://apps.washingtonpost.com/g/documents/national/read-the-dc-circuit-court-ruling-against-the-nsa-bulk-collection-program/1719/
======
pdabbadabba
Tl;dr: The plaintiffs/petitioners presented only a tenuous case that their
records were actually collected, which reduced their perceived likelihood of
success on the ultimate merits of the case enough that they were not entitled
to a preliminary injunction.

Let's unpack that a little bit. This is not a final ruling on the merits of
the case, and it does not have anything (directly) to do with the 4th
Amendment. Plaintiffs had moved for a preliminary injunction before the
district court that would have stopped the program well before the ultimate
outcome of the case. For obvious reasons, the standard for evaluating such
requests is high. One of several factors used for evaluating such a motion is
likelihood of ultimate success of the merits.

In order for plaintiffs to ultimately succeed, they have to convince the court
that they have actually suffered an injury by having their own call records
collected. They need to have been injured in order for the court ultimately to
have jurisdiction. At this point, the DC Circuit concluded that they do not
have any specific evidence of this (and, in fact, some of the indirect
evidence weighs against them). So, the DC Circuit concluded that they were not
so likely to ultimately succeed that it should give them the injunction they
wanted before the ultimate outcome of the case.

This is not a good sign for a plaintiffs' case, but its important to emphasize
that this is an early look at it with, necessarily, the benefit of only a
small amount of evidence. The case will continue in the district court which
will, among other things, try to determine whether the plaintiffs were
actually injured.

Of course, the predictable outcome of that inquiry is that the NSA will invoke
various legal privileges against disclosing the evidence necessary to actually
make a determination, ultimately rendering plaintiffs' case impossible to
maintain.

~~~
jdp23
Marcy Wheeler has more in a pair of posts on Emptywheel.

\- one of the three judges said that the plaintiff didn't have standing
because there wasn't explicit evidence that the government was collecting data
from Verizon Wireless. [In a followup post, Marcy notes that a recent IG
report (obtained by Charlie Savage of the NY Times via a FOIA suit) does
explicitly include Verizon Wireless in a list; but this information probably
wasn't known in time to include it in arguments in this suit.]

\- another judge said that there wasn't any evidence the plaintiff had
suffered any harm from the data collection

\- and the third said that the plaintiffs "barely fulfilled the requirements
for standing at this threshold stage, Plaintiffs fall short of meeting the
higher burden of proof required for a preliminary injunction"

[https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-
ju...](https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-judge-leon-
order-overturning-phone-dragnet/)

[https://www.emptywheel.net/2015/08/28/government-recently-
re...](https://www.emptywheel.net/2015/08/28/government-recently-released-
information-proving-larry-klayman-has-standing/)

~~~
rancur
> the plaintiff had suffered any harm from the data collection

so you have to prove you've suffered harm from the removal of your rights?
They're called rights and the country was founded on protecting them because
they're both intrinsically valuable and completely invaluable!

~~~
dragonwriter
> so you have to prove you've suffered harm from the removal of your rights?

No, you have to be able to establish that _you_ have had _your_ rights
violated. The standard that gets referred to as "harm" is more formally
"concrete, particularized injury" where "injury" is defined as a violation of
a legally-protected interest.

You don't have to prove, e.g., _damages_ from the violation of your rights,
but you can't just allege that an action is a violation of people's rights
generally, and further that, as a person, you _may_ have been impacted, so
therefore you have standing to challenge the action. To have standing to sue,
you have to allege with sufficient evidentiary basis that an action actually
violated your rights in a concrete way.

~~~
beambot
So if rights are violated, but the violations are kept secret (eg. secret
court gag order, national security, etc)... then you haven't been legally
harmed?

~~~
NickNameNick
Someone may have been harmed, but

Until YOU can prove that YOU have been harmed, YOU don't have standing.

~~~
ekianjo
Why doesn't this process lead to an investigation whether data was collected
or not about the plaintiff?

~~~
dragonwriter
In civil lawsuits, investigation to gather facts necessary to meet threshold
requirements like standing is the responsibility of the plaintiff before
filing suit.

~~~
rancur
subpoena?

------
disposition2
Didn't the NSA delay sunsetting the program for a few months (because it was a
legal option given to them by the court)? Convenient that this injunction
occurred before the sunset date. Once again disappointed to see the court side
against the 4th Amendment.

Edit: and this is rather unfortunate...

'It is entirely possible that, even if plaintiffs are granted discovery, the
government may refuse to provide information (if any exists) that would
further plaintiffs’ case. Plaintiffs’ claims may well founder in that event.
But such is the nature of the government’s privileged control over certain
classes of information. Plaintiffs must realize that secrecy is yet another
form of regulation, prescribing not “what the citizen may do” but instead
"what the citizen may know."'

Edit 2: nevermind that the entire states secret clause that the courts are so
often to back up is based on the government trying to save face and not admit
wrong-doing.

~~~
YoureWrong
> 'It is entirely possible that, even if plaintiffs are granted discovery, the
> government may refuse to provide information (if any exists) that would
> further plaintiffs’ case. Plaintiffs’ claims may well founder in that event.
> But such is the nature of the government’s privileged control over certain
> classes of information. Plaintiffs must realize that secrecy is yet another
> form of regulation, prescribing not “what the citizen may do” but instead
> "what the citizen may know."'

If secrecy is another form of regulation, then any such regulations must be
subservient to the fact that a citizen is entitled to due process and to
protection against their affects being seized.

This means that the government asserting state secret to block the judicial
review of a case about them failing to uphold the constitution is a breach of
the constitution, and subservient regulations like state secrecy must be set
aside to uphold constitutional obligations.

Or at least, that's what my lawyer would probably say on appeal.

------
TallGuyShort
This all seems rather academic. Is there any reason to be reasonably sure the
NSA wouldn't just do it regardless of what a judge said?

~~~
cryoshon
This is how we know we've crossed the Rubicon regarding government spying.

We don't expect them to stop spying, even if they're "legally" required to
stop, and spying on us is made "illegal". We have zero faith in their word,
and that was theirs to lose!

~~~
happyscrappy
You cannot win against Mossad etc. The sooner you realize that the sooner you
can get on with your life.

~~~
cryoshon
I completely reject your fatalistic line of thinking on a few grounds:

1\. You can totally win, provided that you show up with thousands of your
friends and a desire to wreck shit. See the corpse of STASI, which the Western
surveillance apparatus has surpassed in every dimension:
[https://en.wikipedia.org/wiki/Stasi#Storming_the_Stasi_headq...](https://en.wikipedia.org/wiki/Stasi#Storming_the_Stasi_headquarters)
(especially read the part about the headquarters being stormed and unconfirmed
reports of lynchings-- sounds a lot like they lost on a permanent basis) The
KGB office in Berlin met a similar fate (it was supposed to be clandestine,
but oops-- intelligence agency installations are seldom hard to find because
they rely on being hidden in plain sight), however most of the files contained
within were destroyed thanks to the quick thinking of an officer there--
Vladimir Putin.

Another example of total victory is the ugly rout of South African
intelligence agencies at the very end of apartheid-- quick, gory, and
intentionally forgotten during the "truth and reconciliation" period. These
agencies had a premium on brutality, and they aren't nearly as well known as
the CIA or Mossad. Interestingly, there were actually several intelligence
agencies of SA at the time-- the military intelligence organization was hit
the hardest, but responded by digging in and doubling down on brutality. The
other (which has had its name changed a number of times but was at the time
known as the National Intelligence Service) was horrified by the military
intel agency being hunted and killed, and changed focus to clandestinely work
on a truce.

2\. You can partially win by forcing them away from your area, provided that
you have access to the political apparatus. There was an article trending on
HN today about how Bolivia had forced out the DEA. Sure, maybe you can argue
the DEA isn't the CIA or Mossad, but the point is clear: these organizations
can't operate with impunity if the (quasi stable) political apparatus decides
to resist them. An alternative set of examples here are
Iraq/Afghanistan/Pakistan/Kurdistan/Syria-- both the CIA and Mossad (and
likely Shin Bet) chalked big losses here (with heavy loss of life of their own
personnel as well as countless indigenous assets) because the population was
hostile to them. Collecting HUMINT requires willing humans, and torturing
people doesn't cause that. It's also extremely hard to blackmail or bribe a
tribesman.

3\. You can buy them out or co-opt them, if you have the right connections.
It's no secret that Putin rose to power via the KGB's influence, but during
the transformative 90s, Russia's economic power was privatized and separated
from the government's apparatus creating a plurality of power loci. Following
this, there began a curious phenomena (replicated by corollaries in the US
around the same time) of the Russian intelligence agencies being caught willy
nilly for industrial espionage. In the midst of economic strife and violent
internal insurgency in the Muslim territories around the same time period, the
intelligence agencies of Russia were largely busy chasing dollars rather than
mujaheddin. Why? Because the newly minted oligarchs were more concerned with
making more cash. This is currently happening in the US. The takeaway point
here is that a change in focus can count as a win.

4\. You can change their political mandate with reforms. The US has done this
once already with the CIA, and will likely do this many more times. There are
too many examples of this to list.

~~~
TallGuyShort
So essentially, without obscene amounts of money and political power, I have
to be willing to commit treason and violently attack a government building?
Okay. So basically not something I'm going to achieve any time soon.

------
peterkelly
From page 3:

> _" NSA may access it only after demonstrating to the FISC that a 'reaonable
> articulable suspicion' that a particular phone number is associated with a
> foreign terrorist organization'"._

Shouldn't this say "associated with a foreign terrorist organisation, _or the
UN_ "?

[http://www.theguardian.com/world/2015/aug/17/un-att-nsa-
spy-...](http://www.theguardian.com/world/2015/aug/17/un-att-nsa-spy-
headquarters-privacy)

~~~
Roodgorf
I'm sure you could find a few people in the U.S. that would consider the U.N.
a foreign terrorist organisation.

~~~
sliverstorm
I know more than a few U.S. citizens who consider the U.S. Government a
foreign terrorist organization.

So yes, I believe you.

------
Floegipoky
Has anyone tried to use probability to cut through this cloud of bullshit that
the government keeps spewing about the plaintiffs not being able to prove that
their records were collected? If you put 100,000 names on that lawsuit,
there's no way they can say that none of them got caught in the dragnet.

------
graiz
Does a plaintiff need to suffer injury if their constitutional rights were
violated? Wouldn't this be closer to a class action since there's broad injury
and violation?

~~~
pdabbadabba
> Does a plaintiff need to suffer injury if their constitutional rights were
> violated?

Yes, they do. Even in a class action the class plaintiffs need to be able to
show that they were injured. This stems from longstanding judicial
interpretation of the "case or controversy" clause of Article III of the U.S.
Constitution.

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

~~~
jsprogrammer
The US constitution allows for the people to petition the government for a
redress of grievances. No monetary injury required.

~~~
pdabbadabba
Article III specifically defines the powers of the judiciary, and these powers
do not include hearing petitions.

It's an interesting question what substance the Petition Clause has.
Unfortunately, it looks these days like it doesn't have much, since the First
Amendment has never been interpreted to give petitions any binding legal
effect. But I think it _is_ clearly correct that the judicial branch, at
least, does not have the power to adjudicate them under Article III.

Edit: By the way, an 'injury' does not necessarily have to be a _monetary_
injury to support standing, though the law about what sorts of injuries count
is exceedingly difficult and, perhaps, incoherent at the margins. One
interesting wrinkle is that courts assume a fairly concrete definition of
"injury", but also permit Congress to expand the applicable conception of
injury (within some limits) in particular situations by statute. _Lujan v.
Defenders of Wildlife_ is a good entry point to this area of law,
[https://www.law.cornell.edu/supremecourt/text/504/555](https://www.law.cornell.edu/supremecourt/text/504/555)
(I do not think that the opinion itself is very good, but its discussion of
other cases is helpful.)

Edit: Removed an imprecise first sentence.

~~~
jsprogrammer
Sorry, but I will have to destroy you here.

First, the word 'lawsuit' does not occur in Article III (nor anywhere else in
the US Constitution). You making a distinction between the word lawsuit and
petition here is nonsense.

Second, Article III, Section 2, Sentence 1:

>The judicial power shall extend to all cases, in Law and Equity, arising
under this Constitution

A petition for redress of grievance is _exactly_ a case in Equity and is
specifically allowed under Amendment I.

~~~
pdabbadabba
It's not that there isn't an argument to be made that a petition is a case. As
a matter of language, of course, it could be. This depends on the precise
definitions of "case" and "petition."

But you are way too late to the party when it comes to deciding the legal
meaning of these words. The prevailing judicial understanding, for more than
100 years, of the "Case and Controversy" clause has been that Article III
courts can only hear lawsuits involving more-or-less concrete injuries.

And as tptacek has pointed out, this is probably for the best. Imagine the
chaos if the courts were constitutionally required to hear every grievance
brought by a member of the public, even if it did not affect his or her
interests in any concrete way. Then also imagine the quality of the legal
reasoning that would result from such a farcical system, where there was no
guarantee that a plaintiff actually had any interest in its outcome.

You may wish that courts had the power to hear petitions for the redress of
grievances when it is your grievance you wish to see redressed. But you should
also consider the wider universe of grievances and whether you would really
want to see them all ventilated in a court of law.

Edit: There are very many cases that state this clearly but here is is a
somewhat random selection:

"The party who invokes the [judicial] power must be able to show, not only
that the statute is invalid, but that he has sustained or is immediately in
danger of sustaining some direct injury as the result of its enforcement, and
not merely that he suffers in some indefinite way in common with people
generally." \- COM. OF MASSACHUSETTS v. MELLON,
[http://caselaw.findlaw.com/us-supreme-
court/262/447.html#488](http://caselaw.findlaw.com/us-supreme-
court/262/447.html#488)

"Over the years, our cases have established that the irreducible
constitutional minimum of standing contains three elements: first, the
plaintiff must have suffered an "injury in fact" \-- an invasion of a legally-
protected interest which is (a) concrete and particularized and (b) "actual or
imminent, not ‘conjectural' or ‘hypothetical.'" Second, there must be a causal
connection between the injury and the conduct complained of -- the injury has
to be fairly trace[able] to the challenged action of the defendant, and not
the result of the independent action of some third party not before the
court." LUJAN v. DEVENDERS OF WILDLIFE,
[https://www.law.cornell.edu/supremecourt/text/504/555](https://www.law.cornell.edu/supremecourt/text/504/555)
(very many citations omitted)

"Although the law of standing has been greatly changed in the last 10 years,
we have steadfastly adhered to the requirement that, at least in the absence
of a statute expressly conferring standing, federal plaintiffs must allege
some threatened or actual injury resulting from the putatively illegal action
before a federal court may assume jurisdiction." LINDA R. S. v. RICHARD D.,
[http://caselaw.findlaw.com/us-supreme-
court/410/614.html#t4](http://caselaw.findlaw.com/us-supreme-
court/410/614.html#t4)

~~~
dragonwriter
> The prevailing judicial understanding, for more than 100 years, of the "Case
> and Controversy" clause has been that Article III courts can only hear
> lawsuits involving more-or-less concrete injuries.

Its important to understand the reasoning here: to wit, that if there isn't a
concrete, particularized, redressable injury -- where "injury" is understood
to be a violation of a legally-protected interest -- then there is no "Case"
to resolve.

The contentious part of this is primarily the "particularized" part, since
that requirement means that violations of the Constitutional limits of
government power do not give rise to a cause of action based solely on the
general citizens interest in constraining the government to its bounds, as
even though this may be a concrete violation of a legally-protected interest,
it is not _particularized_.

This certainly serves some economy-of-justice purposes, but it also makes it
particularly hard to address systemic violations of the Constitution where an
integral part of the charged abuse of power is the governments active
concealment of the details of its actions and their particularized impacts.

------
AdmiralAsshat
So under what circumstances, according to the court, can a citizen actually
claim injury from such a program?

~~~
pdabbadabba
One can only make an educated guess, but I think there are a few possibly easy
cases:

1\. Documents are leaked that specifically identify one or people whose
records were illegally collected. Those people probably could sue, I would
think.

2\. Documents are leaked (or evidence otherwise emerges) that the NSA
collected data on virtually all of a particular company's calls. Subscribers
to that service would probably have a good case for standing.

Bear in mind, though, that we're only at the preliminary injunction stage. The
review at this stage will typically take a pessimistic view of plaintiffs'
ability to prevail on issues like this if there is substantial uncertainty.

It's possible they could lose on the injunction, but ultimately win on the
merits.

~~~
disposition2
Couldn't the government just say whatever documents presented were obtained
illegally or are 'state secrets'?

~~~
dragonwriter
> Couldn't the government just say whatever documents presented were obtained
> illegally or are 'state secrets'?

State secrets probably -- that privilege is extremely easily abused. Obtained
illegally, less so, since illegally obtained evidence isn't generally excluded
except when offered by the government in a criminal case; in other cases, the
remedy for illegally obtained evidence is just to prosecute for the act of
illegally obtaining it.

------
DannyBee
For those of you who want to argue about standing here, your argument is with
the supreme court, not the lower courts :)

[http://www.scotusblog.com/case-files/cases/clapper-v-
amnesty...](http://www.scotusblog.com/case-files/cases/clapper-v-amnesty-
international-usa/)

