
Federal appeals court says NSA phone metadata collection can continue - AdmiralAsshat
http://arstechnica.com/tech-policy/2015/10/court-says-its-again-legal-for-nsa-to-spy-on-you-because-congress-says-its-ok/
======
rayiner
The article's lede ("[y]ou gotta love this twisted logic") makes no sense. The
court originally halted the program because it was not authorized by statute.
Congress revised the statute to dismantle the program, but provided for a 180
day transition. The ACLU sought an injunction to dismantle the program
immediately. The Court held that the 180 day transition period in the USA
Freedom Act authorized the program during the wind-down. There is absolutely
nothing "twisted" about that logic. It's plainly what Congress intended, and
consistent with the court's earlier decision.

If you want to fault the court, fault it for punting on the Constitutional
question. The court properly declined to answer it last time, because it could
decide the case on the alternate basis that the program was unauthorized by
statute (the doctrine of Constitutional avoidance). But this time the question
was squarely presented. If the NSA program is unconstitutional, Congress
cannot authorize it, even for 180 days.

The court had a valid reason to avoid deciding the constitutional issue: this
was a motion for preliminary injunction, and probably an inappropriate context
for deciding a major Constitutional question. But it's not clear to me that
the court had the _discretion_ to avoid the issue now.

~~~
disposition2
> And as a practical matter, deciding this question a few years from now is
> more likely to result in a favorable outcome than deciding it now.

You believe that waiting until mass surveillance has been going on for a solid
generation to decide is going to return a favorable (illegal, got to stop)
outcome? How much further do we have to kick the can down the road while the
initial powers that were given are expanded even more with each passing year?

I think history has shown the outcome to be the complete opposite...just
looking at the last 15 years has shown us that if you crack open the door (the
PATRIOT ACT) to surveillance, it is only going to get pushed completely open a
little further down the line. And it will soon become so commonplace that
things that wouldn't even be considered at the beginning (CISA) are now
enacted with little blowback...if not praise.

Edit: spelling & grammar

~~~
rayiner
The overall trajectory of Constitutional protections is to get more broadly
interpreted over time. E.g. the first time the Supreme Court considered wire
taps in the 1920s, it decided people could not have a reasonable expectation
of privacy in phone conversations because they were sharing them with the
phone company. It was only in the 1960s that they reversed course and held
that a warrant was required for wiretaps.

~~~
btilly
I would say that the overall trajectory is towards more government power.

As for telephone wiretaps, I think technology is a perfectly adequate
explanation.

Most people in the 1920s were on party lines. It was common to have the
operator who connected you, and multiple neighbors, listening to your call.
There really was no reasonable expectation of privacy in that environment.

In the 1960s the system had been upgraded to the point where most people had a
reasonable expectation of privacy in their calls.

------
rm_-rf_slash
There are times when the Constitution can be overlooked for the sake of public
safety. Abraham Lincoln famously suspended habeas corpus during Civil War
riots, and most historians look favorably upon the decision to maintain order
during the young United States' most turbulent time in history.

The NSA, on the other hand, not only lacks the rationale of clear and immenent
danger for continuing their dragnet program, but it has been shown time and
time again that such programs have a minimal, if any, effect on protecting
American citizens from acts of terrorism. For the sake of public faith in a
democracy with checks and balances, the dragnet should be stopped.

~~~
mkehrt
No, there aren't such times. The suspension of habeas corpus by Lincoln was
Constitutional:

> Article I, Section 9: The Privilege of the Writ of Habeas Corpus shall not
> be suspended, unless when in Cases of Rebellion or Invasion the public
> Safety may require it.

~~~
wtbob
The Southern states were not in a state of rebellion; they had
constitutionally seceded.

~~~
ianremsen
There is no mention of, or stated process for, secession of states in the
Constitution. In _Texas v. White_ :

"Chase, [Chief Justice], ruled in favor of Texas on the ground that the
Confederate state government in Texas had no legal existence on the basis that
the secession of Texas from the United States was illegal. The critical
finding underpinning the ruling that Texas could not secede from the United
States was that, following its admission to the United States in 1845, Texas
had become part of "an indestructible Union, composed of indestructible
states." In practical terms, this meant that Texas has never seceded from the
United States."

[https://en.wikipedia.org/wiki/Secession_in_the_United_States...](https://en.wikipedia.org/wiki/Secession_in_the_United_States#Supreme_Court_rulings)

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

~~~
wtbob
> There is no mention of, or stated process for, secession of states in the
> Constitution.

You're exactly right! And the Tenth Amendment states quite clearly, 'The
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the
people.'

Since the Constitution gives the United States no power over secession, and
does not prohibit it, then it's clearly reserved to the respective States, or
to the people thereof.

Secession is 100% legal; Texas v. White is no more compelling a precedent than
Dred Scott v. Sandford. There's simply no other unbiased way to read the
Constitution.

------
negativity
I've stopped thinking about this in terms of mass surveillance, and re-
arranged my perception, to align with a different world view. Namely:

    
    
      If we weren't surprised to learn that exploration 
      throughout history was all about conquest, power 
      projection, fortification and exploitation, and we 
      wouldn't be surprised to learn that in the future, 
      deep space exploration proved to hold similar outcomes,
      then why should we be surprised to learn that virtual
      spaces of imagined information across inert transmission
      mediums should experience these sorts of things.
    
      This is to say, the militarization of hypothetical realms,
      just like the oceans, and just like outer space, was 
      probably always inevitable.
    

So, with that in mind, that there are people arming themselves to the teeth
and enforcing doctrines and demarcations, and patrolling every last iota of
territory available to them, is a fact no less ugly than, say, aerial
bombardment, but when mortal humans find themselves gifted with potent
advantages over their peers, these things happen.

Now comes the time when new virtual territories will likely be carved out.
Programming languages that don't use reserved keywords of English origins.
Mathematical models for address spaces incompatible with TCP/IP of any
version. Other, alternative internets that refuse to be compatible with The
Internet as we know it.

The Internet being an American invention, has been dominated by America, and
is very obviously patrolled broadly and deeply by American paramilitary
entities, in much the same way that American nuclear powered vessels patrol
the earth's oceans.

Given the capacity for computation that one can assume must exist, at this
point, the only thing that would surprise me, would be if those that had
conceived of an internet in general, hadn't actually hypothesized and
accounted for this sort of fault and fracture in their models of social
behavior and technological progress at the outset of all this, back in the
early 1970's.

Part of me wonders if a Snowden-like figure wasn't part of the equation to
begin with. Columbus, after all, didn't sail into the Atlantic expecting to
fall off the edge of the world.

~~~
Spakman
Interesting comment.

I was with you right up until the last paragraph. What do you mean by that?

------
CamperBob2
For those who would argue, "It's just _meta_ data, what's the problem?",
remember that we're killing people with drones based on nothing but metadata.

Metadata, especially when collected and searched in bulk, is important.

------
ck2
It's crazy how schizophrenic the world is.

While the USA is stamping approval on it's abuses the EU is urging protection
for Snowden.

Next whistleblower is doomed, the military will probably shoot down whatever
airliner they take to escape and cover it up.

And given this, next whistleblower might give up before they even try saying
"what's the point".

~~~
happyscrappy
France has already made these data vacuums legal, similar in other EU nations.

[http://thinkprogress.org/world/2015/07/26/3684525/french-
pat...](http://thinkprogress.org/world/2015/07/26/3684525/french-patriot-act-
upheld/)

------
cryoshon
Great, another loss for us right when we're poised for an even bigger loss via
CISA.

I still think we can win, but it's going to take another Snowden from the
blackmail agencies to do so.

------
mirimir
It's clear from Snowden's stuff that NSA culture is highly military and
hackish, in the LulzSec sense. Cases like this are just part of the shadow
dance.

------
kafkaesq
As if they would ever actually stop, based on the opinion of some civilian
court.

------
awqrre
So, laws have to be followed, but not by the very powerful...

------
happyscrappy
From the comments:

"You usually do a good job covering this topic but this article is not up to
your usual standard. You portray the court's opinion as tautological - "And
now the courts essentially maintain that the original surveillance is legal
because Congress says it's legal" \- but this is a misleading and unfair
caricature. The background of this case is that this 2nd Circuit panel said
that bulk collection of metadata was illegal because Congress never authorized
such a tactic under the Patriot Act. Note that the court said it was illegal
because it was not statutorily authorized. It did not conclude the program
violated a constitutional clause, right or principle. You conflate these two
very different things when you write in your article:

Quote:

So how could something so seemingly unconstitutional continue? Congress said
it could, that's how.

Statutorily unauthorized is not the same thing as unconstitutional - the panel
never said in their original ruling that the bulk metadata collection was
unconstitutional, only that it was unauthorized by the law the government
cited for its legality.

Now, in this latest ruling, the 2nd Circuit panel is saying with the recent
passage of the Freedom Act, Congress has provided the authorization that was
missing under the Patriot Act for the bulk metadata collection. So yes, in a
sense, the previously illegal bulk collection program is now legal because
Congress says it's legal but that's not twisted logic - that's how laws work.
Acts are legal or illegal because the legislative body says so. Previously,
the court said the metadata program wasn't authorized by the law - now, the
new revised law provides that authorization. There's nothing twisted about
that legal reasoning.

To be clear, I oppose the metadata collection or the indiscriminate NSA
surveillance. But I do not think this article fairly summarize the reasoning
in the court's opinion."

