
Ninth Circuit rules NSA's bulk collection of Americans' call records was illegal - AndrewBissell
https://www.politico.com/news/2020/09/02/court-rules-nsa-phone-snooping-illegal-407727
======
AnonHP
Whenever I see such news and then look around at what they’ve been doing and
continue to do (revealed sometimes in congressional hearings), it seems to me
that the executive and the legislature are truly toothless in the face of
these three-letter agencies. Nothing they say or put forth as law will be
obeyed. So why even have laws then?

Then you also have top representatives from these agencies lying outright in
public hearings with hardly a consequence. There ought to be criminal
proceedings and punishments for this. A resignation here and there isn’t
enough (one way they’d handle that is by joining the privacy sector and
getting back into the game by proxy).

~~~
tialaramex
They're spooks. This is what they're for. The constraints are _at best_ just
theatre, obviously their adversaries aren't going to obey these rules, and
they know that so if they are to be effective (and if they aren't why would
they exist at all?) they will also disobey these rules.

The purpose of such rules _in practice_ is to help the American public to
sleep at night despite having tacitly authorised a nightmare. You know the
scene in Casablance, even if you've never watched the movie - it has permeated
our culture Captain Renault claims to be _shocked_ to discover that the club
is being used for gambling, undercut by a croupier giving him his winnings.

If you don't want spooks to do what spooks do, don't pass a law saying it
mustn't happen, don't vote for a government that promises they'll exercise
oversight over the spooks to prevent it. Just get rid of the spooks. Congress
could, if the American people wanted - which they do not - abolish these
agencies entirely. They'd just cease to exist and while I'm sure some small
scale abuses would continue you just can't run programmes to snoop these huge
volumes on pocket change, and companies would be less likely to co-operate
with informal requests than with the Department of Justice.

But as much as they enjoy bluster, Americans are afraid, and so the spooks
will certainly continue to be authorised and "outrages" will happen when once
in a while it is revealed that the spooks are doing what spooks do but nothing
actually changes. Eventually it'll get to be so routine the The Onion has a
pre-built news article for it like for the mass shootings.

~~~
sk5t
> But as much as they enjoy bluster, Americans are afraid [...]

Are Americans really afraid? Or is it that Americans feel comfort in having
the meanest dog on the block, even if that dog sometimes nips its master?

~~~
StavrosK
When I expressed horror and outrage at the notion that the TSA can go through
your luggage, an American friend told me "well if it keeps us safe...", so I'd
say "afraid".

~~~
vinay427
First of all, it's not at all clear that this implies fear as I understand the
emotion.

More tangentially, as I usually fly outside the US, it's fair to say that this
is far from just an American reality. For example, the Dublin Airport even
explicitly mentions that hold baggage may also be searched by hand on their
website: > "Both your carry-on luggage and check-in baggage will be checked by
means of detection equipment and may also be subject to a hand search." [1]

I have a hard time believing that airports with any restrictions on what
check-in/hold baggage may contain (virtually all of them, if not all) don't
have any provisions for searching bags, although maybe I'm wrong here.

[1] [https://www.dublinairport.com/at-the-
airport/security](https://www.dublinairport.com/at-the-airport/security)

~~~
StavrosK
Maybe they have provisions, but the only time I've had my luggage searched was
in the US.

------
ncmncm
Now, when can we begin prosecuting the instigators? Presumably, after we have
prosecuted those who ordered and participated in torture. (There is no statute
of limitations on torture, is there?)

~~~
37383265253
Why would you prosecute people who were given permission by the relevant
authorities?

>The call-tracking effort began without court authorization under President
George W. Bush following the Sept. 11, 2001, terrorist attacks.<

So the PotUS gave them the authority.

>A similar program was approved by the secretive FISA Court beginning in 2006
and renewed numerous times, but the 9th Circuit panel said those rulings were
legally flawed.<

So in this instance the IC was still operating under the authority of the FISA
court. Whether the court came to the right conclusions or not is irrelevant to
whether or not the agencies were bound to following those conclusions.

>The metadata program was officially shut down in 2015 after Congress passed
the USA FREEDOM Act, which provided a new mechanism where phone providers
retained their data instead of turning it over to the government. The revamped
system appears to have been abandoned by the NSA in 2018 or 2019.<

So the programs being discussed have already been terminated. What more would
you have done? Are we going to prosecute judges for making rulings we disagree
with?

>The American Civil Liberties Union hailed the decision as "a victory for our
privacy rights," though the left-leaning group said it was "disappointed that,
having found the surveillance of Mr. Moalin unlawful, the court declined to
order suppression of the illegally obtained evidence in his case."<

As an aside, it's wildly funny to me that the ACLU won't defend free speech
anymore but they'll defend terrorists and their supporters.

~~~
darkarmani
> As an aside, it's wildly funny to me that the ACLU won't defend free speech
> anymore but they'll defend terrorists and their supporters.

When has the ACLU stopped defending free speech? They defend convicted
terrorists or alleged terrorists?

~~~
koolba
The ACLU’s moral compass needle has been wobbling for a while now, and it
broke off completely after Trump was elected. They realized that they collect
significantly more donations by framing themselves as champion of leftist
ideals rather than the original purpose of defending actual civil liberties.

~~~
freen
I find your lack of evidence unsurprising.

~~~
koolba
[https://fortune.com/2018/07/05/aclu-membership-
growth/](https://fortune.com/2018/07/05/aclu-membership-growth/)

[https://reason.com/2019/04/12/the-aclu-defends-the-rights-
of...](https://reason.com/2019/04/12/the-aclu-defends-the-rights-of-gun-
owner/)

[https://www.heritage.org/the-constitution/commentary/the-
acl...](https://www.heritage.org/the-constitution/commentary/the-aclu-loses-
its-way)

~~~
morsch
1: ACLU gained membership after Trump was elected. So?

2: ACLU is not a strong proponent of individual gun ownership, according to
the article this has been true for at least 30 years.

3: Article makes far reaching claim in headline but mostly focuses about a
single issue, the changes to title IX. Clearly the author disagrees with the
ACLU, but the article doesn't give any context on the issue. It's hard to tell
if it really is an uncharacteristic position for them to take. I think the
heritage foundation has hated the ACLU for a very long time, so that's
consistent.

------
dang
We've changed the URL from [https://www.aclu.org/legal-document/united-states-
v-moalin-n...](https://www.aclu.org/legal-document/united-states-v-moalin-
ninth-circuit-opinion) to an article that gives more background. The link to
the decision is an excellent thing to post, but usually it's best as a
supplement to a general article (if one can be found) that establishes
context.

~~~
enjoyyourlife
The article is form [https://www.politico.com/news/2020/09/02/court-rules-nsa-
pho...](https://www.politico.com/news/2020/09/02/court-rules-nsa-phone-
snooping-illegal-407727)

~~~
dang
Ok, we'll change to that from [https://news.yahoo.com/court-rules-nsa-phone-
snooping-181157...](https://news.yahoo.com/court-rules-nsa-phone-
snooping-181157311.html), which links to that. Thanks!

------
Ansil849
This question is meant in good faith, not to be facetious but out of a genuine
lack of understanding: now what?

If this action was ruled illegal, then someone in the chain of command ordered
this illegal action - in other words did something illegal. Is the individual
who ordered the illegal action going to be disciplined? Is anyone?

~~~
Drunk_Engineer
The statute of limitations has expired for prosecuting the person responsible.

[https://sensenbrenner.house.gov/2018/3/james-clapper-not-
cha...](https://sensenbrenner.house.gov/2018/3/james-clapper-not-charged-with-
lying-to-congress)

~~~
Voliokis
Why is there a statute of limitations for government officials? This shouldn't
be a thing when you're entrusted with the responsibilities that you are
concerning an entire country and its citizens.

~~~
vorpalhex
The ability to defend yourself of a charge disappears over time. Evidence
"rots" as weird as that sounds.

~~~
kelnos
Sure, but we've decided that for some crimes (like murder) there is no statute
of limitations, and we have a greater interest in prosecuting those crimes
than in ensuring it's reasonable for a defendant to defend themself many years
later.

I think the same should be true of our civil servants who wield so much power
over the populace.

------
badrabbit
You know what I don't get? There is no penalty for violating the highest law
of the land (the constitution). How is it anymore than a suggestion or a
guidline if government officials are not punished for violating it? And that
is exactly how lae enforcement and intelligence community treat it.

The US constitution needs lots of updates but this maybe the most important
item -- manadatory prison terms for anyone acting on behalf of government who
is found violating the bill of rights or any restriction set by articles of
the constitution.

~~~
ardy42
> You know what I don't get? There is no penalty for violating the highest law
> of the land (the constitution). How is it anymore than a suggestion or a
> guidline if government officials are not punished for violating it? And that
> is exactly how lae enforcement and intelligence community treat it.

It's because it can't reasonably work like that. At a certain point, defining
punishments is moot, because there's no higher authority to appeal to for
enforcement. If the Constitution says "Congress shall make no law..." and
Congress still makes a law, what are you going to do, throw Congress in jail?
That's nonsense. The Constitution, for the most part, just states norms and
procedures that the the country and government have decided to follow
voluntarily, not because some authority will punish it if it doesn't.

> The US constitution needs lots of updates but this maybe the most important
> item -- manadatory prison terms for anyone acting on behalf of government
> who is found violating the bill of rights or any restriction set by articles
> of the constitution.

That might actually be unconstitutional ex-post-facto punishment. Many
violations of the Constitution or Bill of Rights aren't clear until some court
case interprets some action as not being in compliance. Would you have every
county clerk that ever denied a same-sex marriage license or defined
procedures to do so go to jail after _Obergefell v. Hodges_?

~~~
heimatau
> If the Constitution says "Congress shall make no law..." and Congress still
> makes a law, what are you going to do, throw Congress in jail? That's
> nonsense.

Actually, it's nonsense to think anything to the contrary. Either our founding
document matters as the backbone of our Laws or it doesn't. Your outlandish
logic nullifies any power that the government may have over it's people. It
nullifies the social contract.

> The Constitution, for the most part, just states norms and procedures that
> the the country and government have decided to follow voluntarily, not
> because some authority will punish it if it doesn't.

It's not a document of 'norms' and 'procedures'. It's a structure of how our
Republic is built. Either we have a structure or we undermine it. That's
really it, full stop. Amendments are apart of that structure to build or take
away for what that structure is to be. Not 'ought to be' not 'suggested' not
'maybe if you'd like to follow', it's a mutually agreed upon __Law __.

[edited: minor edits for added clarity]

~~~
xxpor
>Either our founding document matters as the backbone of our Laws or it
doesn't.

Nitpick, the constitution isn't a founding document. There was that whole
Articles of Confederation thing.

Congress isn't the final authority of if laws are constitutional or not. The
courts are. Congress and the Supreme Court commonly disagree on the
constitutionality of laws. What you're proposing is essentially a oligarchy
lead by the Supreme Court.

>Your outlandish logic nullifies any power that the government may have over
it's people. It nullifies the social contract.

There is no social contract based on the constitution. It's just that enough
people agree that it has value, so it does. That's not a social contract. No
regular people voted on the Constitution. You don't have the ability to reject
it if you don't agree with it.

~~~
ColanR
> No regular people voted on the Constitution.

Nitpick. The people who were sent as representatives from each state to help
write and ratify the constitution were chosen by the people of that state. So
technically, through representative democracy, the regular people did agree to
the constitution because their representatives agreed on it.

~~~
xxpor
Not the same thing IMO. Ignoring the issue of who was allowed to vote in the
1780s, there's a reason why the House was voted on by the people and the
Senate the state legislatures. They recognized then the two groups have
different interests.

~~~
salawat
State Senators were still voted on by the People, and part of the vote of
confidence for taking part in the State Senate was a recognition of their
capability to choose who represented the State at the National level based on
understanding of the State's business.

To be honest, I kind of wonder whether it was better to let the State
Legislature decide. Wasn't alive then though and haven't done the research.

~~~
heimatau
> State Senators were still voted on by the People...I kind of wonder whether
> it was better to let the State Legislature decide.

It seems you don't understand the difference between how the people directly
elected US Senators since 1913 versus a State Republic that was voted on.

These are two very different things. I say very because one is more Democratic
and the other is more Republic. A Republic is an indirect mechanism whereas
Democratic is a direct mechanism.

------
fareesh
In operation crossfire hurricane, the FBI doctored an email and used its
contents as part of an effort to get a FISA warrant to spy on a member of the
incoming administration. This gave them access to listen to conversations of
anyone 2 levels of connection away from the target.

They also withheld exculpatory evidence at the time of requesting the warrant,
and relied on a fictional document paid for by the opposing political party.

This was used as a basis to conduct a 2 year long investigation into collusion
between the campaign and the Russian government, which resulted in the
conviction of Michael Cohen for tax evasion and perjury, and Paul Manafort for
tax fraud, bank fraud and conspiracy all of which predated the campaign and
had nothing to do with it.

Not only are these agencies spying based on fabricated evidence, they are
using the spying to kick off independent investigations, each of which unveil
various unrelated crimes, which they then prosecute.

The whole system is rotten to its core.

~~~
bosswipe
You present a very one-side of view of that story that has been extremely
muddied by a constant stream of conspiracy theories and misinformation from
everyone including the president. Even though I agree with Trump on some
things and dislike Biden the lying, conspiracy theories and general disrespect
for our democracy is completely disqualifying in my book.

~~~
fareesh
The conspiracy theory is that the agency conspired to do this for political
reasons. Even if you discount that entirely it does not take away from the
fact that this is possible and happened, and that in itself ought to be cause
for concern.

------
LatteLazy
This puts scotus in a difficult position. They've generally refused to hear
national security cases. Now they'll have to...

~~~
fortran77
They don't have to. They can let the lower court's decision stand.

~~~
eganist
The lower court's decision standing enables litigation against the federal
government and the NSA specifically.

~~~
vinay427
Are you implying that you think SCOTUS would consequently feel forced to
overturn the ruling? If so, I don't follow. Wouldn't these subsequent legal
proceedings have their own minutiae that lead courts to make varying
decisions?

------
burtonator
The US congress gave _retroactive_ immunity to AT&T for this so you can't sue
them for actively working with the US government to violate the constitution.

------
vvpan
Pardon Snowden.

~~~
Zenbit_UX
Hard to even pretend he did something wrong after this ruling. The government
was proven to be acting illegally and likely also unconstitutionally, he had a
moral imperative to alert the public.

~~~
dx87
Well, we can't forget that he also took a bunch of information that had
nothing to do with this ruling.

~~~
iratewizard
He learned from his employer to cast a wide net.

~~~
hosteur
And he published none of it. He gave it to a few trusted journalists exactly
to have them sort out what was not deemed in the public interest.

------
btbuildem
So, do they have to delete all the databases now? Or just keep the illegally
collected data all the same?

~~~
lern_too_spel
It was deleted in 2016. [https://www.reuters.com/article/us-usa-nsa-
termination/nsa-t...](https://www.reuters.com/article/us-usa-nsa-
termination/nsa-to-shut-down-bulk-phone-surveillance-program-by-sunday-
idUSKBN0TG27120151127)

------
arminiusreturns
For those talking about this subject, I would like to remind you that it is
the surveillance network that is the equivalent of an automated Epstein system
of blackmail. Not only should we reign in the surveillance state, but we need
to remember that to do that we have to stop being so naive and need to
understand that the blackmail system is at play in the legislative. This isn't
just overfocus on re-election, or k-street normal corruption or any of the
normal accusations against congress we have to fight, this is state sponsered
blackmail and worse. To try to fix other issues without adressing the
blackmail one is not going to be a systemic fix. It's a root causal issue.

So, a question of chicken and egg. What do you try to fix first, congress, or
the laws/system? I think congress is the only practical avenue.

------
leeoniya
> But she said even if Moalin and his co-defendants had clear notice of that,
> it wouldn't have helped their defense.

parallel construction is a hell of a thing

------
ineedasername
Unfortunately, this is:

1) Only a 3 judge panel, so their will be an appeal for the full court to here
the case.

2) Not yet over even if the full panel agrees, because then it will be
appealed to the Supreme Court.

So it could still be years before the issue is finally

~~~
dav43
The fact this has taken so long to process - and by all means not complete yet
- doesn’t paint a pretty picture of the system as a whole.

------
jacquesm
Looking forward to a full pardon for Snowden.

------
mLuby
Our society hasn't figured out how to punish organizations, whether
businesses, NGOs, religious groups, or government agencies. Past a certain
level, fines don't cut it—you need existential threats.

We need "prison" more often for misbehaving entities; that is, a prohibition
on operating for the duration of the sentence.

"But what about all the people who will be unemployed?" Exactly, that's part
of the incentive not to mess up.

"You can't shut down the NSA for a year, what about the commies and the
terrorists?" Yes that would be bad, so make sure it won't happen. #Incentives

 _Nothing_ is too big to fail.

~~~
Thorentis
Shutting down the NSA isn't the answer. We do need those orgs to keep
operating for good reasons. Otherwise somebody who dislikes those orgs or has
a grudge can shut the whole thing down by breaking the law (imagine a foreign
agent playing the "long-con" and doing this).

The answer, as others have already said, is imprisonment of commanding
officiers, supervisors, senators in charge of oversight committees, etc. Hold
the people that make decisions accountable. Don't hold the entry-level
engineers who had a family to feed accountable. Hold the people calling the
shots accountable. 10 years in prison is a pretty good incentive for those in
charge to make sure what they and their employees are doing is legal.

~~~
mLuby
The org must be accountable for its actions (or inactions). It's the org's
responsibility to make sure its agents don't mess up when acting under its
authority. Hire employees who are trustworthy and competent, fire those who
aren't, and provide training and oversight to ensure compliance. That's a
reasonable minimum bar.

Separately, if a person breaks a law, they should be punished for that.

And remember, judgements incorporate circumstances and intentions when
determining punishments. So a small non-profit that was trying its best but
was still hacked by a nation-state would probably get a lighter punishment,
just as accidental manslaughter usually receives a lighter sentence than pre-
meditated murder.

~~~
Thorentis
An org is made up of people. You can't punish an org without punishing people.
So you have to decide who to punish. Do you punish the entire population by
removing an org that is there to protect them? Or do you punish the
individuals inside and outside of the org that are responsible for making
those bad decisions?

~~~
mLuby
You have it backwards: the entire population is punishing the org for failing
to protect them.

And yes, that hurts the population a little bit, just as imprisoning
individuals hurts civic society and the economy.

To mangle a great line: we are entitled to rise and sleep under the blanket of
the very freedom the NSA provides _AND_ question the manner in which they
provide it.

~~~
Thorentis
You cannot punish an org without punishing people. An org is not something
with feelings and isn't sentient. The people within it are. To punish the org,
you need to punish the people that make the decisions inside it. Shutting down
the entire organisation doesn't hold anybody personally accountable. They'll
just go and get jobs elsewhere. It is a silly concept.

------
theflyy
But its affect our privacy too.

[https://www.theflyy.com/blog/how-appbrowzer-hit-1-lac-
downlo...](https://www.theflyy.com/blog/how-appbrowzer-hit-1-lac-downloads-
in-24-hours/)

------
ab_testing
Isn't the 9th circuit the court where most of the liberal judges sit. This
decision can as well go to the Supreme Court and get overturned.

~~~
topspin
The 9th is being flipped or has already flipped[1], depending on whom you ask.
Trump has made 10 appointment to the 9th.

[1] Trump has flipped the 9th Circuit
[https://www.latimes.com/california/story/2020-02-22/trump-
co...](https://www.latimes.com/california/story/2020-02-22/trump-conservative-
judges-9th-circuit)

------
JoshTko
What are we spying for? Rouge states trying to disrupt our elections? Rising
boldness of home grown militias?

------
tehjoker
Lol, they only make rulings like this after the act was already committed and
the NSA already stopped using phone metadata so nothing material changes. Even
the people imprisoned over the phone data, we are assured that it was so minor
and insignificant nothing important about their case should change.

Make no mistake, this is just a way for the intelligence services to pretend
as though there's some kind of legality and court oversight to what they are
doing.

------
brokenmachine
So we can presume that all the bosses who authorized this illegal activity
will go to jail?

Lol jk.

------
m0zg
Can we put James Clapper in prison now, pls? Or is he still untouchable?

~~~
throw51319
What did he do?

~~~
m0zg
Ordered this bulk collection, then lied under oath that it wasn't happening.
Would get away with it, too, if it wasn't for Snowden.

~~~
throw51319
Does bulk/metadata analysis even count though? It's not like somebody is
personally going through your data. It's just a system that can infer the few
records that are of interest.

I'd rather have that, and allow us to stay protected against terrorists or
spies from China/Russia... than play by some arbitrary rules and then get
destroyed one day.

~~~
m0zg
> stay protected against terrorists or spies from China/Russia

That's not what it's being used for. It's a flagrant violation of the 4th
amendment. Whatever remains of it today, anyway. You don't get to do what
amounts to a search without a court order with US citizens.

------
Ice_cream_suit
When the President is protecting war criminals, anything goes....

------
tmnvix
Are the records still accessible by the NSA?

------
jxramos
It wasn't illegal, it was prelegal ;-)

------
mikewarot
Prediction: In the next few days, the NSA/FBI use their trove of data to track
down all of Antifa, and make arrests. It lets the Democrats off the hook, lets
Trump say "law and order", lets the NSA keep it's toys, and the risk of civil
war drops a bit, increasing National Security.

They could even frame Iran or North Korea in the process. Bonus points for the
Military Industrial Complex.

------
jimbob45
The real lesson of the Nazis should have been that secret police forces
inevitably lead to corruption, even when they’re made with the best
intentions. The #1 best method of preventing the Holocaust would have been
better government oversight and transparency.

I’m fine with record collection if it works. The secret courts enabling these
secret agencies only help hide bad actors and must be abolished.

------
variadico
surprised-pikachu.jpg

------
george120
The National Security Agency program that swept up details on billions of
Americans' phone calls was illegal and possibly unconstitutional, a federal
appeals court ruled Wednesday.

However, the unanimous three-judge panel of the 9th Circuit Court of Appeals
said the role the so-called telephone metadata program played in a criminal
terror-fundraising case against four Somali immigrants was so minor that it
did not undermine their convictions.
[https://www.bloggerzune.com/2020/06/10-Most-Important-SEO-
St...](https://www.bloggerzune.com/2020/06/10-Most-Important-SEO-
Strategies.html?m=1)

------
nowandlater
“Amendment I

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.”

... and to petition the government for a redress of grievances.

This document matters. It’s a fucking miracle it even exists — still.

~~~
ghayes
This ruling is much more likely to be related to the 4th Amendment search and
seizure clause or the 14th Amendment Due Process clause.

------
ed25519FUUU
Now do illegal unmaskings of US citizens[1]!

Question for everyone: in October 2016 the head of the NSA did an audit on
unaskings. What percentage do you think were illegal?

> _One paragraph in the report states that ??% of the Section 704 and 705(b)
> FISA searches made during this time were non-compliant with applicable laws
> and therefore criminal._

Take a guess before you click this [2] link and find out.

I challenge you to even find a mainstream news article about this. It's
extremely hard, by design. Let's put aside politics and hold the intelligence
agencies accountable.

1\. [https://justthenews.com/accountability/russia-and-ukraine-
sc...](https://justthenews.com/accountability/russia-and-ukraine-
scandals/line-between-lawful-unmasking-and-political-spying-and) 2\.
[https://www.usapoliticstoday.org/fisa-court-
ruling-85-obamas...](https://www.usapoliticstoday.org/fisa-court-
ruling-85-obamas-fbi/)

~~~
ciarannolan
> Let's put aside politics and hold the intelligence agencies accountable.

Lol.

