
U.S. NSA domestic phone spying program illegal: appeals court - dnewms
http://www.reuters.com/article/2015/05/07/us-usa-security-nsa-idUSKBN0NS1IN20150507
======
diafygi
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.

~~~
hackuser
> It appears that the government is starting to lose the ability to always
> dismiss constitutional rights ...

The text you quoted said _dismissing the complaint without reaching appellants
' constitutional arguments_.

> organizations like the ACLU and the EFF need funding

Serious question: Do the ACLU and EFF profile their donors by collecting
information from and reporting it to third parties? It's my understanding that
the practice is widespread in the fund-raising business, and I read many years
ago that the ACLU participated.

EDIT: I want to clarify, because some people are responding regarding web
trackers. Those are a concern, but I'm talking about something else:
Obtaining, from third-party data aggregators, profiles of donors: How much
they make, their mortgage, what they read -- all the data that's collected
about private citizens -- and using it to target their fundraising.

~~~
count
Metadata collection is only bad when it's the Government doing it!

FWIW: I've not received anything but EFF-related spam from EFF to the email
address I used to donate to them back in the day.

Not sure about ACLU.

~~~
nickbauman
Governments can use force on those they track. Corporations can't yet (they're
working on that).

~~~
rayiner
At the same time, the government has little reason to hassle people who aren't
fringe minorities. Private companies have strong incentives to use data
collection against the masses.

~~~
CWuestefeld
I don't buy either side of that statement. Government does hassle the masses,
and I'm not sure what incentives private companies have to use data collection
on the masses. My argument for the latter is probably a little weak, but
certainly in the former, history is clear.

~~~
spacemanmatt
> I'm not sure what incentives private companies have to use data collection
> on the masses.

Have you met FaceBook?

------
a3n
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.

~~~
kordless
> Thank you Snowden. Fuck you NSA.

I'm going to turn that into a sticker and stick it on my laptop.

~~~
sharpasand
please make more then 1, i'll buy from you.

~~~
niels_olson
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.

------
kylelibra
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/clap...](https://www.aclu.org/sites/default/files/field_document/clapper-
ca2-sack-concurrence.pdf)

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
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
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.

------
toyg
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
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.

~~~
hackuser
> We may be glad with what he did but do we want to encourage this type of
> thing?

I think this raises an issue we can't easily dismiss, how to handle whistle-
blowers. On one hand they are essential to democracy, so we don't want to jail
all of them; on the other they can cause great harm, so we don't want to
enable all of them. How do we enable good whistle-blowers and stop the bad
ones?

Let's hear serious proposals. Would a law that puts the consequences on the
leaker's shoulders be sufficient? Prosecuting someone after-the-fact when, due
to the leaker's misjudgment, their leak lost a war and killed hundreds of
thousands wouldn't be enough. Require them to exhaust internal institutional
solutions? Again, that wouldn't protect us from a leaker with bad judgment;
the worse their judgment, the more likley the institution would rightly reject
all the leaker's claims, leading to a leak. Rely on executive clemency?

~~~
minot
If the government thinks individuals have nothing to hide then as an
individual I think the government has nothing to hide.

------
zmanian
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
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-
redu...](https://www.emptywheel.net/2015/05/06/the-goodies-usa-f-redux-gives-
the-intelligence-community/)

The Surveillance State Repeal Act would be an even stronger reform than
straight expiration. [http://www.huffingtonpost.com/2015/03/24/surveillance-
state-...](http://www.huffingtonpost.com/2015/03/24/surveillance-state-repeal-
act_n_6935632.html)

------
jstalin
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-b18...](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/)

~~~
CPLX
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.

------
declan
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.h...](http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.htm)

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?

------
rev_bird
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?

~~~
pcrh
The difference isn't so much whether they conduct surveillance, within or on
the edges of the law, but whether they can use whatever information they find.

If the information that is found cannot subsequently be used to (legally)
further whatever agenda they have, then it is of very much diminished value,
and its collection will receive less support.

Small steps...

~~~
Pyxl101
That's not the only issue. Parallel construction is also a concern - a process
where the government "launders" information received unconstitutionally, such
as lying and claiming it was from a confidential informant; or using the
illegally received information to give them insight into how to pursue
building a "clean" line of evidence that appears to be from scratch but isn't,
such as "coincidentally" stopping a particular vehicle for a traffic
violation, when investigators know the vehicle will be breaking the law from
their dragnet surveillance (e.g., smuggling drugs). In some cases, these
agencies have lied to the courts about how they obtained their evidence.

> But instead of being truthful with criminal defendants, judges, and even
> prosecutors about where the information came from, DEA agents are reportedly
> obscuring the source of these tips. For example, a law enforcement agent
> could receive a tip from SOD—which SOD, in turn, got from the NSA—to look
> for a specific car at a certain place. But instead of relying solely on that
> tip, the agent would be instructed to find his or her own reason to stop and
> search the car. Agents are directed to keep SOD under wraps and not mention
> it in "investigative reports, affidavits, discussions with prosecutors and
> courtroom testimony," according to Reuters.

[https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-
intel...](https://www.eff.org/deeplinks/2013/08/dea-and-nsa-team-intelligence-
laundering)

~~~
pcrh
Sure, but its a small step in the right direction. Outright parallel
construction is evidently illegal, and if is caught would be a major
embarrassment. The other problems are age old and not specific to internet
surveillance.

------
SoftwareMaven
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?

~~~
mikecb
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...](https://www.aclu.org/files/assets/order_granting_governments_motion_to_dismiss_and_denying_aclu_motion_for_preliminary_injunction.pdf)

[2](pdf warning)
[http://repository.law.umich.edu/cgi/viewcontent.cgi?article=...](http://repository.law.umich.edu/cgi/viewcontent.cgi?article=1079&context=mlr)

~~~
a3n
> 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
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.

~~~
a3n
But the 4th does qualify with "unreasonable," and dragnets without "specific"
suspicions are unreasonable and unconstitutional.

~~~
mikecb
Indeed, and there's where we need mosaic the most. As it stands, the
collection of this type of data (Smith) is not even a search, and therefore
the court does not even consider whether or not it was reasonable. It just
stops there. If it were found to be a search, it might still come in, but
perhaps for a different reason. There's a great cartoon, which contains this
awesome flowchart:
[http://lawcomic.net/guide/?p=2256](http://lawcomic.net/guide/?p=2256)

------
craigching

      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.

------
ck2
Pretty sure they are going to keep doing it anyway.

------
guelo
Is Snowden a whistleblower now?

~~~
wheregotla
he's just a "29 year-old hacker"

------
higherpurpose
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
Essentially nothing, until these cases make their way to the Supreme Court.

------
simpsond
Does anyone know how this will be enforced?

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

------
matheweis
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/)

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

~~~
LLWM
He can return anytime, as long as he doesn't mind facing trial for the crimes
he has committed.

~~~
johnchristopher
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
It doesn't matter how he is judged, he will be pardoned.

------
fotoblur
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.

------
MrZongle2
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
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.

------
mckoss
ACLU Response

[https://www.youtube.com/watch?v=_q83Y5nyOSE](https://www.youtube.com/watch?v=_q83Y5nyOSE)

------
ra1n85
That it took this long and came this close is concerning. I can't help but
feel this is just theater.

~~~
AnimalMuppet
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).

------
a3n
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
NSA employees go home at night. They are subject to arrest when they do, if
the courts need to go that far.

~~~
TallGuyShort
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.

------
xnull6guest
Section 709 on email and internet traffic untouched, though.

------
alxndresp
What about all the internet data they are collecting?

