
The most Kafkaesque paragraph from today’s NSA ruling - runn1ng
http://www.washingtonpost.com/blogs/the-switch/wp/2013/12/27/the-most-kafkaesque-paragraph-from-todays-nsa-ruling/
======
rayiner
This is taken wildly out of context. The sentence right after the quoted text
is just wrong. The quote is in response to a statutory argument. Statutory
arguments are evaluated by reference to the text of the statute and Congress's
intent in drafting the statute. The court is not saying that the ACLU has no
claim because Congress did not intend the targets to find out, but rather that
Section 215 doesn't create that claim because it would be inconsistent for
Congress to intend to create such a claim when Congress did not intend for
targets to find out. The court is rejecting one possible basis for the ACLU's
claim, which is that Congress intended to create an avenue recourse in the
statute. Its not a general point applicable to other possible bases for the
ACLU's claim. In particular, the court is not saying that the ACLU cannot
mount a Constitutional challenge for that reason, which is what the article
implies. That would be Kafkaesque, but that's not at all what the opinion
says. The Constitutional basis is separate from the statutory one, and does
not depend on Congress's intent.

It helps to think about this analogously to other kinds of suits. Say you feel
like a school district is discriminating against African Americans. There's a
constitutional dimension to that case, but also a statutory dimension.
Congress has created legislation that people can rely on to address such
discrimination. To defend a suit under such a statute, a state might argue
that a particular suit does not fall within the scope of the statute: that
Congress did not intend for the statute to serve as recourse in this
situation. But that sill leaves the broader Constitutional issue on the table.
Whether Congress intended for a statute to serve as recourse is irrelevant to
the Constitutional argument. There are two separate bases.

~~~
Zigurd
Which are the laws for which Congress must explicitly create an avenue for
recourse?

~~~
rayiner
In general, a suit must be based on either a cause of action at common law
(tort, contract, etc), a state or federal law, or in limited circumstances
directly under the Constitution. Federal statutes must demonstrate some
Congressional intent to create an avenue of recourse. In fact, Congress can
make something illegal, yet not create a cause of action. For example, with
the securities laws, there have been many disputed related to when Congress
intended to create avenues of recourse for private parties and when Congress
only intended the government to be able to enforce violations.

~~~
Zigurd
So which is it: Warrantless search has no recourse unless the law says so, or
is the judge buying in to the idea that section 215 data collection isn't
"search?"

~~~
rayiner
Neither is true. The mistake you're making is treating the ACLU's challenge as
a single abstract thing. Instead, its a set of distinct, self-contained,
claims argued in the alternate. And the court is obliged to address the
distinct arguments on their own merits. Its a more systematic process than "is
this good or bad?"

One claim is that Section 215 creates an avenue for targets to challenge days
collection. The court rejects the idea that Congress intended to create an
avenue in the statute for targets to challenge data collection, when Congress
didn't intend targets to even know. That's the statutory argument. The court
rejected the Constitional argument on a _separate_ basis. They applied Smith
v. Maryland, which approved warrantless collection of phone metadata in
individual cases, and concluded it didn't become unconstitutional just because
the NSA did it to a whole bunch of cases. This is a straightforward
application of the third party doctrine. The fact that Congress didn't want
targets to know had nothing to do with this part. It was rather based on how
the boundaries of the 4th amendment have been interpreted.

~~~
Zigurd
Don't talk down to me. I pointed out two absurdities in this case: That
secrecy is a magic spell that make due process go away and that it isn't a
search if it's only machines looking at data. The judge has apparently gone
for a third absurdity: Pen registers for all! This now supposedly is no
different from from an investigation requesting a pen register on an
individual as part of a specific investigation, never mind the dubiousness of
warrant-less pen register requests in the first place.

~~~
rayiner
I'm not talking down to you, I'm trying to get you to understand the opinion.
The whole point of the legal analytical process is to cabin what would
otherwise be total judicial discretion. It limits the analytical process by
which judges can reach a conclusion. You can't understand opinions without
keeping track of the context which limits the scope of every statement. Its
like lexical scoping of variables in a program. When you take one paragraph
addressing statutory standing and pretend that it says "secrecy is magic that
makes due process go away" its like trying to understand a statement in a
program while ignoring the lexical environment at that program point.

Judges aren't empowered to simply say "NSA is bad, ACLU wins!" In this case
you wouldn't even like that, because the judge is clearly very sympathetic to
the anti-terrorism backdrop of the whole case. You might think that
warrantless pen registers are an "absurdity" but the judge isn't entitled to
draw that conclusion. He is required to accept the premise of Smith v.
Maryland, that collecting pen register data doesn't require a warrant because
its third party information in the hands of the telephone company.

~~~
swalkergibson
Precedent changes (with respect to Smith vs. Maryland). This judge's bias is
evident from the first sentence of his ruling when he invokes the memory of
9/11.

The problem is that to the lay-person, this reads like, "well, you weren't
really supposed to know about it, so you can't do anything about it." Whether
or not the ruling is legally sound is basically irrelevant now. It is a PR
problem and no amount of "trust me, I am a lawyer" is going to convince people
who know how to read that this ruling does not sound like total garbage.

~~~
dragonwriter
> The problem is that to the lay-person, this reads like, "well, you weren't
> really supposed to know about it, so you can't do anything about it."

That's exactly what it says.

> Whether or not the ruling is legally sound is basically irrelevant now.

Its relevant in understanding where the problem lies on the particular issue
of the statutory claim being made by the ACLU (i.e., not with the court here,
but with the Congress that wrote the law specifically to exclude this type of
claim, and even more broadly with the entire principle of sovereign immunity
and the way it stands in direct opposition to the idea of limited government,
since a government that is only as accountable as it chooses to allow itself
to be is not in any meaningful sense limited.)

> It is a PR problem and no amount of "trust me, I am a lawyer" is going to
> convince people who know how to read that this ruling does not sound like
> total garbage.

The ruling sounds like total garbage _because_ it is legally sound and the law
underlying it is garbage.

------
jbaiter
Yesterday in a talk at 30C3, a historian discussed article 10 of the German
'Grundgesetz' (our constitution) whose logic is similar and which reads as
follows:

> (1) The privacy of correspondence, posts and telecommunications shall be
> inviolable.

> (2) Restrictions may be ordered only pursuant to a law. If the restriction
> serves to protect the free democratic basic order or the existence or
> security of the Federation or of a Land, the law may provide that the person
> affected shall not be informed of the restriction and that recourse to the
> courts shall be replaced by a review of the case by agencies and auxiliary
> agencies appointed by the legislature.[1]

The logic sounds alike to me: Victims cannot know that they are being
surveilled, and should they, under some circumstances obtain knowledge of the
fact, take any real legal recourse against it. Fun fact: That article was
imposed by the US.[2]

[1] [http://www.gesetze-im-
internet.de/englisch_gg/englisch_gg.ht...](http://www.gesetze-im-
internet.de/englisch_gg/englisch_gg.html#p0054)

[2]
[http://de.wikipedia.org/wiki/Deutsche_Notstandsgesetze](http://de.wikipedia.org/wiki/Deutsche_Notstandsgesetze)
(sorry, the English article doesn't cite any sources)

------
jfaucett
If I understand this correctly, it is the simultaneously the most absurd and
scary thing I have read in a very long time. So now crimes committed by the
government cannot be challenged because the government never intended anyone
to find out about it - thats a horrid peace of law.

~~~
Zigurd
> thats a horrid peace of law

It isn't law. It's one judge's tortured (Nah. Blackmailed?) logic. He isn't
reading the law. He is stuffing caulk into a big crack, and inferring that the
flaw should never have been there.

The logical consequence of this is that all the cases from targets that can
infer they are targets based on the Snowden documents will have to result in
courts that simply ignore the crime. That goes way beyond Gonzaga.

~~~
malandrew
I would love to see someone take the speculation of blackmail further. It's
obviously speculation and not fact, but it's reasonable speculation that is
entirely possible and no longer in the realm of tin-foil hattery and that's
why it matters. We no longer required a tortured conspiracy theory to consider
blackmail a likely explanation of why this horrific judgement was made, and
that's frightening in and of itself.

------
chasing
"Pauley is essentially saying that the targets of the order have no recourse
to challenge the collection of their personal data because Congress never
intended for targets to ever know that they were subject to this sort of
spying."

No.

Pauley is saying that the targets of the order have no recourse to challenge
it. That Congress never intended for them to know about it may be true, but
it's otherwise neither here nor there.

~~~
rayiner
Not quite. The court is saying that the statute does not itself create that
avenue of recourse.

~~~
MWil
Except that one of the arguments, if not chiefly, should be that the actual
actions (collection, spying, what have you) were unconstitutional - not that
any legislative or executive action were passed which Congress has not
authorized recourse to. It's as simple as that - fight the behavior directly
as it violates privacy rights, regardless of what Congress or the Executive
has done.

It's true that Congress holds two very powerful jurisdiction stripping
abilities but the ability to interpret the Constitution will never be subject
to that. Interestingly, the Supreme Court may be stripped of that ability but
a State or inferior Federal Court should always be able to hear such a case if
there is standing otherwise.

(Starting with "Except..." sounds wrong b/c you ^ are correct in regards to
statutory recourse, it just shouldn't have been dismissed based on other
grounds available which you actually explained pretty well below)

~~~
ubernostrum
Well, the problem -- though not necessarily the specific problem here -- is
that "the government did something unconstitutional" is not enough to make a
lawsuit. The deeper issue is whether someone has "standing" to sue, and
federal courts (and especially the Supreme Court) have a history of using that
to sweep inconvenient issues under the rug when they don't want to make a
decision.

For example, a standing-based argument against an NSA surveillance lawsuit
might admit that, if someone were able to sue, they would certainly prevail on
constitutional grounds, but then dismiss the suit anyway because the person
suing can't demonstrate they've been harmed by the government action. If the
only way you can find out that the action took place is through an illegal
disclosure of classified information, for example, it may be there's no
evidence you can legally present in court to show you were harmed (this is a
variant of the "you weren't supposed to know you were targeted" argument).

And that's without getting into the thicket of sovereign immunity (which is
not the state-secrets doctrine, but rather the idea that you can't actually
sue the government directly unless the government lets you; instead you have
to find some specific government official who you can argue exceeded
constitutional authority. Good luck doing that when everything that's happened
is classified).

~~~
MWil
Standing is not a legal barrier, it's a functional (unilaterally created) one.
It's main purpose being to prevent taxpayer suits and therefore a level of
suits that might be unmaintainable by the justice system (weak). So I may be
mistaken but I don't believe though that the rules of evidence apply so that
standing could be denied on the grounds as you hypothesized them. The question
is whether the matter should even be heard as a "case" so I would think it
would be odd to conduct it as if it were a case when making that
determination.

~~~
rayiner
The standing doctrines are legal barriers and serve important purposes.
Statutory standing ensures that when people sue under a statute, as one of the
ACLU's claims purports to do, that the statute was actually intended to allow
that sort of suit by that sort of plaintiff. Standing also ensures that the
proper parties bring suit rather than people with a tenuous interest in the
case. Finally, standing had an important Constitutional dimension, partly
jurisdictional. Article III courts are only empowered to hear concrete cases
or controversies. This ensures that courts actually resolve individual legal
disputes, rather than infringing on the territory of the elected branched and
getting into political disputes.

------
CurtMonash
That's not crazy. When faced with a law, terrible or otherwise, judges have
two main choices:

1\. Rule that the law should be followed. 2\. Rule that the law is
unconstitutional.

The article provides strong reasons for believing the law is terrible, but
that doesn't mean the judge is wrong on any grounds except constitutional
ones.

~~~
pessimizer
3\. Rule that the plaintiff lacks standing to sue because the only evidence
that the plaintiff has that they have been a target of this law is a result of
whistleblowing, and if the evidence of a whistleblower, although both true and
confirmed by the defendant, is accepted, this would encourage more
whistleblowing, which is the worst possible outcome imaginable. Instead, the
only parties who have standing are the ones who had been directly and secretly
served with the order (to monitor all of the plaintiff's communications), and
those parties only have standing to secretly challenge the order in a secret
court.

You could rule that, too.

~~~
CurtMonash
Well, standing is usually a matter of law. But yes, I was oversimplifying, and
anyhow IANAL.

~~~
pessimizer
My point was that your oversimplification was deceptive. You state that the
judge only has two choices, and it's a matter of record that the actual judge
in question chose neither of them.

>Well, standing is usually a matter of law.

The constitutionality of the concept of standing was not in question.

------
ItendToDisagree
A hypothetical:

"The principal called. He said that you cheated on your exams."

"Yeah, but I never meant for anyone to find out, so why am I in trouble?"

Seems legit to me!

~~~
judk
It's more like " The principal says you confessed and agreed to serve
detention, because your friend told him you said you'd serve detention if you
had to."

The specific statute does not provide victims an avenue of relief, so the
victims cannot seek relief from the courts under that statute.

The real problem is either (a) the law is unconstitutional, or (b) the
Cnstitution is not strong (well-written) enough to give justice in cases where
the government is concealing its actions.

------
Cakez0r
It's not a crime unless you get caught! .... Or apparently if you didn't
intend to get caught.

------
zacinbusiness
I don't think any of this really matters. If the Supreme Court decided
tomorrow that anything the NSA does is unconstitutional then the laws would
either be rewritten immediately or the government would challenge the ruling
and force the justices to change their minds. The Us government answers to no
one, and that includes the Supreme Court.

~~~
ubernostrum
_If the Supreme Court decided tomorrow that anything the NSA does is
unconstitutional then the laws would either be rewritten immediately or the
government would challenge the ruling and force the justices to change their
minds._

"John Marshall has made his decision; now let him enforce it!"

(this is not a new problem)

------
smokeyj
I wonder what kind of dirt the executive branch has on the judicial branch..

~~~
diminoten
I'm so sick of this claim. The NSA fucked up based on what we know, there's no
need to wildly speculate that actual blackmail is occurring too.

It's just plain unnecessary.

~~~
alan_cx
No, its reasonably implied.

If the NSA has the information its claimed to have, then its reasonable to
suggest that anyone in power has every little thing they ever did wrong in the
past in the back of their minds, knowing the NSA _might_ know about it. Recent
revelations can only make that feeling stronger. So, while it is unlikely that
every judge, politician, whatever, has been literally visited by a NSA goon,
it is quite reasonable to suggest that such people rationally decide not to
oppose the NSA, and act accordingly.

That is the whole reason why industrialised, comprehensive data slurping is a
direct threat to any notion of freedom.

~~~
diminoten
You can't get this for free, given how big of a deal it is.

You have to prove it's happening or stop saying it all-together. It's just
that big of a deal.

~~~
na85
It's happening. You think they developed scruples after LOVEINT or whatever it
was they called it? Have people forgotten Hoover in your country?

It is guaranteed. There's no way it's not happening. Maybe not everyone, but
many people in the US Gov't have dirty laundry. And some of that laundry has
been discovered. And some of what's been discovered has been used for
blackmail.

I've never been more confident of any opinion I've ever held.

~~~
diminoten
If you've ever wondered what religious people feel like in relation to God's
existence, you now understand.

------
Aloha
I should point out that the person who argued for the petitioner - Doe - in
Gonzaga v Doe, was John Roberts - this may not go the obvious way if it
reaches the supreme court.

------
memracom
Imagine that the KGB informs Putin that Edward Snowden is holed up in Moscow
airport. What would Putin ask.

Probably, "What information does he have that we could use?".

What would you as a KGB leader say to Putin. Probably "Well he stole a huge
amount of sensitive information from the NSA but he apparently hid it all on
the Internet and gave copies to several other people. But he doesn't have it
with him."

And then what would Putin say? Perhaps "If he has already passed on this
information, then could he do anything else other than what he has already
done?"

I suppose the KGB leader would say "No, other than to hide away so that they
can't hold a big show trial hoping to cover up the real story."

"Good says Putin. We will give him refugee status if he promises not to do
anything else to further harm the USA. After all, it will take time for all
the information to filter out to the media. We will hide him so that the media
has to focus on the facts.

And then Putin adds, "Do you think he discovered anything that we don't know
already?"

And the KGB leader replies "We have known of this lax security for years. Our
team of sleeper agents set up many channels of information for us years ago,
so we think this only means that the world will learn what we already know."

~~~
officemonkey
Except the KGB hasn't existed since 1991. It's the Federal Security Service.

------
rodrodrod
Wait, what? There's no way that's a valid legal argument. That's insane.

------
coldcode
We should be reminded that neither Kafka nor Orwell should be regarded as
designs for law. The more time goes by the more we seem to live in their
world.

------
gamerDude
Well, in a way this is a similar kind of right as the people have to not be
prosecuted after an un-warranted search.

Can we get a warrant to search every portion of the government for illegal
activity? We just have to find some sort of suspicion that they might be doing
this...

------
squozzer
The ruling seems to have put the kibosh on legal redress. Now the question
becomes of what to do next. So how does one neutralize something like an NSA?
Where are their pressure points?

------
jkarni
If I understand this correctly, is it really that worrying an argument? One
can't use covert telephone recording (i.e., without two-party consent) as
evidence in most states, and it's important that the person being recorded
didn't intend for the conversation to be recorded and available in the future
as evidence. Similarly, one would _expect_ leaks to not hold up as evidence.

Much as I also dislike the ruling, the argument here seems quite reasonable to
me.

