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U.S. NSA domestic phone spying program illegal: appeals court (reuters.com)
653 points by dnewms on May 7, 2015 | hide | past | web | favorite | 143 comments

The actual judgment: 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.


Also, this will give significant weight to the Fight 215 coalition (https://fight215.org), which this ruling is directly related to.

the government is starting to lose the ability to always dismiss constitutional rights abused on "state secrets" grounds

I don't think the decision says that. It looks to me like the decision is fairly limited. All it says is that "you're saying that USAPATRIOT lets you capture bulk metadata, but it doesn't; the government's own reading of the legislation is wrong". That doesn't go as far as saying that the gov't cannot hide behind state secrets in other cases.

Further, it's now imperative that section 215 not be renewed. The foundation of this decision is that the mass surveillance can't be considered to have been approved by Congress, because many of them (not to mention all of us) weren't aware of the program. But now that Congress is aware of it, any renewal would imply that they condone the program, and thus that they believe it should be allowed to continue.

Under those conditions, this decision would no longer be applicable, and we'd have to get a SCOTUS decision on the overall constitutionality, which is going to be much more difficult (although I think that in the big picture, that's the right answer).

It's important to stress the usefulness of monthly donations, as opposed to single donations, even large ones. Monthly donations let organizations like the ACLU and the EFF plan for the future based on a reliable source of income, instead of individual donations which can be peaky.

What are the laws governing endowments? Could an organization fund itself indefinitely based on interest on an endowment assembled from millions of small one-time donations, or are there taxes or other rules that would eat away the endowment?

> 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.

EFF uses extensive technical and policy measures to protect member privacy. They also require the similar measures when they partner with other orgs on campaigns.


Ghostery reports Omniture(Adobe Analytics) on the ACLU homepage, and additionally Adobe Test and Target on their donate page. On EFF, Ghostery only reports Piwik Analytics on their home and donate pages. For comparison, the NYTimes homepage shows 35 trackers.

Personally, I don't have a problem with this. I am concerned about overreach in government policy, not nonprofits trying to learn a bit more about their supporters.

This is fairly off topic, but in case you cared, Ghostery's business model is to sell your browsing habits and blocked ads and blocked trackers data back to the people their extension blocks. They claim it's anonymized, and I'd venture to say it probably is, but it's still data about you.

I almost bought their enterprise solution last year, and we didn't talk about individuals' data at all. What they pitched me on is basically an aggregated version what the browser plugin does--tell me what trackers are running where on my sites.

This is surprisingly difficult for enterprises to keep track of. Different divisions might have different websites, or different campaigns running, and be placing things like tracking pixels or tags all over the place without telling anyone.

And embedded content can come with trackers of their own. For example if you embed a Storify feed in your site, you get 4 trackers with it. Surprise!

They'll host a page for the enterprise that lists out all the trackers, and gives visitors opt-out links for each one. Again--a total pain for most companies to try to do themselves.

It's all powered by people running the plugin, but the plugin data not what's for sale. At least, they never pitched me on it, and it's not part of their service description on their website.

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.

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

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.

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.

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

Have you met FaceBook?

Which government, and during what time period?

Of course, collecting metadata -- especially via centralized services like Google Analytics -- means you're creating a very tempting trove of information for both the government and private entities that may make use of it to your users' disadvantage.

How do you explain this from a few days ago: http://motherboard.vice.com/read/one-of-the-biggest-privacy-... ?

There was no state secrets assertion in that case and the court decided it on constitutional grounds (under which the government won) rather than statutory grounds (like here, under which the government lost).

Davis: there's no fourth amendment obstacle to the government getting cellphone location data (of particular people)

Clapper: the government's interpretation of part of the Patriot Act's supposedly allowing it to easily get everyone's phone calling records is mistaken

I guess the fact that Davis undermines our privacy rights and Clapper protects them might seem incongruous if you expect a nationwide trend of all Federal courts either protecting or failing to protect privacy. But these were two different courts in different parts of the country applying different legal theories to different legal questions, not just something like "is privacy good?" or "is government surveillance out of control/sketchy/terrifying?".

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.

This case would have been impossible without Snowden.

Previous attempts to litigate the legality of mass collection of data had failed based on problems with the "standing" of plaintiffs. Specifically, the people who sued could only say that it was implicit that the government had collected data on them, but they had no actual evidence that it had happened -- specifically, to them.

That specificity is necessary to have standing in cases against the government, as a longstanding principle that you can't just use the courts to claim the government is violating the constitution or doing something wrong in a general way, you have to present courts with a specific controversy and specific facts that yielded specific damages and have specific redress.

That specificity was provided by Snowden when he turned over copies of the actual subpoena/requests to Verizon by the NSA. The ACLU was then able to say, we are actual customers of Verizon on the dates in question, and this order is asking for actual information on us, specifically.

Without Snowden this issue would never have reached this point and this decision -- which indeed has ruled illegal the NSA's mass metadata collection of telephony records -- would have never happened.

There probably wouldn't have been a ruling at all. The court itself states that Snowden was the principle catalyst for this case to ever go to court in the first place.

From the judgement:

"Americans first learned about the telephone metadata program that appellants now challenge on June 5, 2013, when the British newspaper The Guardian published a FISC order leaked by former government contractor Edward Snowden".

>Thank you Snowden. Fuck you NSA.

While that's amusing, it's an imperfect summary of the problem. DOJ had the Patriot Act in a drawer before 9/11. The Patriot Act wasn't read in full by any member of the Senate before it was voted on. And Section 215 was grossly reinterpreted, by both Bush and Obama administrations, according to that section's author, Jim Sensenbrenner.

It's said NSA doesn't have a moral compass, it's basically the components of a chess set. It just does what it's told. So really some criticism goes to a lazy, unimaginative, or ignorant Congress for not fully understanding the Patriot Act and how administrations (especially the more suspicious elements within them) would interpret and use Section 215 to give credibility to what they want to do. And more criticism goes to the FBI for telling the NSA to engage in bulk collection and FISA court for permitting it, and by extension the president (both of them) mainly for leaving this program on autopilot and also defending it.

A task for historians, is to what degree each president really actively defended bulk collection and believed in its appropriateness, vs what was politically possible with the expectation a future court would become involved in unwinding something that president really didn't approve of but merely accepted.

> It just does what it's told.

Actually, bureaucracies, especially defense and intelligence bureaucracies, have a culture and an agenda of their own. They wield enough power (both in absolute and complexity terms) to be able to push the political executive far beyond what said executive would have wanted. Do you think Barack Obama ever dreamed of authorizing drone strikes (i.e. assassination of civilians) around the world before becoming a politician?

It's because of the revolving door between government agencies and the corporations that supply their equipment. Crony capitalism where the bids that are accepted are based solely on the connections the contractors have.

I think this quote applies here: "Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power" - Mussolini

I don't understand the question. The history of drones predates Barack Obama becoming a state senator of Illinois though. https://understandingempire.wordpress.com/2-0-a-brief-histor...

The meaning of the question is that Obama hadn't thought he himself would authorize drone strikes until he became president himself. Not that Obama hadn't imagined the existence of drone strikes.

> Thank you Snowden. Fuck you NSA.

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

Bring back the "This Machine Kills Fascists" sticker for laptops as well!

Unfortunately, 'Thank you Snowden. Fuck you NSA' also translates as 'Fuck the owner of this laptop, yours sincerely, TSA'.

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

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.

Here's the actual decision: http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf

Concurrence by Judge Sack: https://www.aclu.org/sites/default/files/field_document/clap...

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."

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.)

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.

Here's a summary of the legal issues by Marty Lederman: http://justsecurity.org/22799/breaking-circuit-rules-section...

And Marcy Wheeler's got some excerpts as well: https://www.emptywheel.net/2015/05/07/2nd-circuit-rules-phon...

It's times like this that really make me miss Groklaw.

Who knows, maybe it's decisions like this that will bring PJ back.

I doubt she will feel secure enough to run the site like it used to be ever again.

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.

Why would it be a good time to ask for a pardon? The only thing the current administration loves more than jailing whistleblowers is drone-striking civilians. Why ask when the answer is obviously going to be 'Fuck No?'

Or even when the answer is going to be yes? Snowden shouldn't need a pardon for what he's done. Any federal prosecutor that would even consider laying charges should be removed from office immediately.

Snowden very blatantly broke laws, if a federal prosecutor doesn't charge him they should be removed from office.

The laws he broke being immoral/unconstitutional/for the greater good is to be determined by the judge/jury, not the prosecutor.

A law being a law doesn't mean it's right.

But in reality that's not the prosecutors call to make. In the US laws are challenged in the court system, or overturned by lawmakers. I would say that the current government in the US is not going to be open to changing these things so that requires charges to be brought and a trial to be convened and then let the process move from there.

A presidential pardon solves Snowdens issue, but does not change the law.

It is very much the prosecutor's call to make. Prosecutors aren't (at least in theory) supposed to charge the accused with as many crimes as possible. It is the job of the prosecutor to ensure that justice is served, whatever that might mean given the facts before them. Sometimes that might mean throwing the book at the accused, but in other cases it might mean dropping the case even when it is clear that the accused really did break the law. Unfortunately prosecutors are rewarded for successful convictions, so it is not surprising that prosecutors act as though their job is to charge the accused with as many crimes as possible.

I'd put it a little differently: it's the job of the prosecutor to ensure that public order is upheld. Americans tend to get distracted by the ambiguous notion of "justice" and what is or isn't "just" (even when the two are orthogonal).

Justice is for the courts to decide, not the prosecutor. But whether enforcing a law serves to uphold the public order is up to the prosecutor. And enforcing bullshit laws is just as problematic as being inconsistent in what laws you do enforce.

Did you even read what I wrote?

It's not up to the prosecutor to determine whether or not a law is just or not. That is not his job, that is a job for the judge/jury.

Prosecutors have wide discretion in whether or not to charge people. Perhaps they should exercise that discretion.

Perhaps we should all look forward instead of back, you know the way did with fucking torture.

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.

> 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?

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

The courts need to make it easier to handle these type of things. One of the issues mentioned here was standing which made it hard for the ACLU to bring cases against the Government.

Unlike the arguable Manning, Snowden had a deliberate, slow, controlled release of information. No informants were exposed; et cetera.

What is wrong with responsible whistleblowing of unlawful activity? I think it should be encouraged!

While it has certainly turned out that way, considering the process of dissemination, both Snowden and Manning dumped a pile of documents on a third party. It's that third party that, in the case of Manning's files (WikiLeaks), was hasty and cavalier in its release of information, whereas Greenwald/Poitras/Etc. have been more careful and deliberate in their releases.

To the extent that the individual leakers could have some sort of culpability, it would be for the people with whom they chose to share their information, though I grant that the who is not independent of the how.

I seem to remember that Wikileaks asked some part of the US government for help redacting the Manning leaks to prevent jeopardizing lives and missions, but they refused.

You're right. Greenwald and Poitras deserve a lot of credit for the responsible dissemination.

To his credit, Snowden did attempt to vet reporters as I recall. ;)

Snowden's document leaks, and by extension the journalists with whom he entrusted them to, were not restricted in scope to only disclosing illegal domestic collection activities.

In fact, the majority of disclosures were foreign in nature, and of those, quite a few ran counter not only to American foreign policy and security interests, but Western interests in general.

The articles exposing intelligence activities in Indonesia were but one example.[1]

Indonesia is such a nice, non-repressive country[2], and it's not like they aren't making significant progress on the human rights front[3]. How dare western intelligence spy on them. /s

Other examples include severe damage to foreign relations with China[4], coverage of offensive capabilities such as network infiltration and hardware implantation[5], the CIA using co-traveler inference to shake tails in the field [6], and more.

Today's news is certainly a positive thing, but I think it's fair to say Snowden's whistleblowing is far from responsible, even if it isn't wantonly reckless (i.e. Manning).


[1] http://www.theguardian.com/world/2013/nov/18/australia-tried...

[2] http://www.hrw.org/news/2011/06/08/letter-president-yudhoyon...

[3] https://www.hrw.org/news/2015/03/04/indonesia-begins-roll-ba...

[4] http://www.theguardian.com/world/2013/jun/13/snowden-revelat...

[5] http://www.spiegel.de/international/world/the-nsa-uses-power...

[6] http://www.washingtonpost.com/world/national-security/nsa-tr... (very last paragraph)

The citizens of a representative democracy have the right to know what the government is doing on their behalf, either domestically or abroad. Saying that the Snowden revelations damaged relations with another country is like an adulteress complaining that her snitching boyfriend damaged her relationship with her husband. The crime occurred long before the revelation...

>The citizens of a representative democracy have the right to know what the government is doing on their behalf, either domestically or abroad.

While I agree in a domestic context, that ideal can't really be applied to a foreign context with any specificity, at least in terms of intelligence activities.

The vast majority of intelligence operations rely on secrecy to be effective, and you can't maintain secrecy when you inform your citizenry about it.

I know that sounds bad, but the result would be that the representative democracies of the world wouldn't have effective intelligence agencies, and the other countries would. Not exactly an ideal outcome.

>Saying that the Snowden revelations damaged relations with another country is like an adulteress complaining that her snitching boyfriend damaged her relationship with her husband.

Sure, and if we extend my example using your analogy, the husband is and has been a cheating asshole the entire time. His hobbies include perpetrating various human rights violations on a massive scale.

oh, i didn't know your uncle Bob's spying on me (a "westerner") was in my interest. thank you so much for the enlightment!

in other news, Indonesia's oppressive regime has been propped up by the USA. https://en.wikipedia.org/wiki/Suharto

If an oppressive regime is created or perpetuated by Cold War-era anti-communist policy, that's certainly a bad thing. Especially so if the regime then commits atrocities (e.g. as in Indonesia).

That said, I fail to see how such history should have any bearing on whether or not Indonesia is a valid signals intelligence target today. If anything, it provides compelling justification to continue such programs.

In my opinion, countries that have terrible human rights records generally lose their right to complain about privacy when spied on by countries with significantly better records.

Not sure what you mean by your last sentence; the US has a pretty abysmal human rights record, as well.

Relative to most other western democracies, the human rights record of the US is obviously profoundly deficient in certain areas. When compared to Indonesia however, in terms of how citizens are treated, I'd argue it's actually quite good.

>do we want to encourage this type of thing?


As far as I can tell he did it exactly right. Tried to escalate but not the point of causing trouble and getting fired. Took a bunch of documents and released them not straight out, but to journalists who had an opportunity to redact things that might directly endanger lives (like names of agents, etc).

> do we want to encourage this type of thing?

So long as the government tries to do things in secret that are illegal, yes, we do want to encourage this type of thing. The alternative is that eventually you have "turn key tyranny" where the apparatus is also used to suppress dissent and the government REALLY takes over.

You don't want your government's crimes to be exposed?

"This type of thing" can be analyzed on a case-by-case basis. If, emboldened by a Snowden partdon, future whistleblowers take it too far, the president can decide whether or not they are eligible for pardon when the time comes.

The pendulum has swung too far away for this to be a credible objection. Yes, I do want to encourage what Snowden did.

This president, and the last one, have decided that any whistleblowing deserves vicious prosecution. They even think that some journalists deserve that treatment too.

George Washington (among many others) kinda set the standard by leading a group of men who murdered those rightfully in charge. I never hear any condemn him for what he did, yet far less extreme actions taken today result in condemnation for going too far. Odd, no?


I want as many Snowdens as we can muster. (I was once shadowbanned on HN for typing that sentence.)

1. I did not criticize what Snowden did. He was very careful and responsible.

2. All I was trying to say is that turning Snowden into a public mainstream hero could inspire some idiot that "wants to be a hero too" to do something dumb.


Blame the New York Times instead of Snowden for that failure if you want, but I wouldn't call sending that information to the New York Times in the first place 'very careful'.

"We" is too many people.

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.

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...

The Surveillance State Repeal Act would be an even stronger reform than straight expiration. http://www.huffingtonpost.com/2015/03/24/surveillance-state-...

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.


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.

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...

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

* 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?

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?

I have faith in the power of the judiciary, still. While putting illegal surveillance programs to bed may feel like a half century long game of wack-a-mole, precedent still has power in American courts.

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...

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.


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.

Good for each of us now, but what of the people that were convicted on evidence found through parallel construction in the past that might not even be aware of it or able to prove it? What exactly can the courts do to help those people?

It shouldn't make you really feel anything since it is only a three judge panel on an appeals court. Until it reaches the Supreme Court, it is all up in the air.

Eh, cheer up. Sure, the intelligence agencies will do their best to lie and hide from Congress, but every time they do so, it is one step closer to the hammer coming down onto them and their funding being slashed.

Sorry to add to the downer chorus, but I think that would require a majority in both houses to exhibit some integrity and a desire to wield Congressional power.

I don't see that happening. Obstructionism, pandering, lobbying and abdication of responsibility? Oh, we've got that in spades.

Not to be a double downer, I don't see the current president signing anything that would limit executive power so it would take 2/3rds of both houses to override a veto.

I concur, with the slight modification:

Not only that, but any bill that successfully passed could, given past history by several presidents, be effectively ignored via executive order.

That one's easy to get around. Congress does budgets. If Congress has backbone (but not 2/3 majority backbone), they can pass a budget that de-funds NSA to whatever degree desired. The president can veto it. But then there's no budget, so there's still no money for the NSA...

The easy part is that would take only 1/2 of one chamber. the hard part is forcing a government shutdown is risky business, and maintaining the resolve of the caucus becomes more difficult the longer one drags on.

And whoever's opposed to it can easily spin the action as a reckless disregard for America's security. (Nevermind I think the NSA could disappear tomorrow in a puff of logic and nobody would be the worse..)

I wouldn't be so optimistic. A bit of fearmongering here and there. Some idiots from the middle east (or wherever) spreading fear and terror... et viola: New justification for more funds.

I'm sure you heard that ISIS has suddenly appeared in the US coincidentally just a few days before the reauthorization of the worst parts of the "Patriot" act came due.

It's funny because the head of ISIS came from Saddam's intelligence services. I wonder if they have a man or two in NSA...

When there's enough to prosecute, refer the case to DOJ for charging people with criminal violations. NSA officials in the past have been mirandized (https://firstlook.org/theintercept/2014/10/02/the-nsa-and-me...) in expectation of criminal charges. But until the state secrets veil gets well pierced, it's unlikely that a prosecution can gather and show enough evidence to convict.

It's okay. A good portion of the justice system is in cahoots with investigators' tactics because it puts people they believe are guilty behind bars.

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?

There is a doctrine called "constitutional avoidance" - if a court can decide a case on grounds without reaching a constitutional question (particularly a close question), it ought to decide the case on the alternative grounds and avoid the constitutional question.

So, for example, a court might say: This action was improper because it was not authorized by Congress. That is all we need to decide. Because we made this decision, we don't need to reach the constitutional question. Of course, if Congress had authorized this action (or now does so), and this case is back before us, we will no longer be able to take that path. We may, at that time, decide that the congressionally-authorized action is unconstitutional. But because there is no need to do reach that decision at this time, we decline to do so.

Read more here: http://en.wikipedia.org/wiki/Constitutional_avoidance

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...

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

> 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.

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.

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

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

That is a matter of law, not thinking. We have specific laws in cases where you can expect that information you disclose to others should be kept secret. Attorney-client privilege, HIPAA, etc. That alone should tip you off that types of communication without such restrictions are not protected.

Law is an evolving matter of thinking and interpretation, not a set of instructions.

A great recipe for tyranny.

Seems to me the lawyers would attempt to throw noodles at the wall until something sticks. The "authorized by Congress" noodle stuck to the wall of the lower court. A higher court told them they needed to have cleaned their walls first.

Whether the lower court should have accepted the "authorized by Congress" argument is another matter, but the reason might be that the judge agreed. Or maybe he didn't feel convinced by the challenger's arguments. Or maybe he was having a bad day. I hope it wasn't the latter. Anyway, this is why the appeals system even exists - seems to be working.

Or, given the case at hand, they had some things on him he didn't want "leaked". Might sound paranoid, but that is one of the core reasons why such systems are so bad, right ?

Exactly right. And the fact that such tin-hat conversations are at all credible (reality or not) today is an indication that someone has fucked up, very badly and very existentially.

We just can't take seriously any statement made by spies, whether they're false or true. Even statements that are provably true have a good chance at being in front of a bad motive. They game others as their day job, after all.

That's why it's going back to be reviewed but it's not why it was dismissed in the first place.

The government asked for dismissal because

1: The ACLU lacks standing (denied) 2: Sovereign Immunity (upheld but reversed) 3: Bulk collection was authorized by congress (upheld but reversed) 4: bulk collection does not violate 4th or 1st amendments (upheld)

tl;dr: Court: Authorized by congress and constitutional. Appeals Court: Not authorized by congress, therefore we can ignore any constitutional aspects of it.



> Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"?

The Constitutional limits on what the executive can do on its own authority are different than the Constitutional limits on what the Congress can authorize the Executive to do. So, its quite possible that "it was authorized by Congress" could be a decisive consideration in a case challenging an executive action as unconstitutional.

An action by a federal agency can be constitutionally challenged as being outside of the scope or powers granted to that agency by congress. The constitutional challenge thus would be that the agency is operating outside of the checks and balances system the constitution lays out.

Congress has in the past and can today authorize agencies to do things like collect data on US citizens for national security purposes or public safety purposes.

What you describe is a statutory challenge. A constitutional challenge would be that the statute authorizing the conduct went beyond the enumerated powers in the Constitution, or that the conduct went beyond the President's inherent Article II authorities, or that it violated rights protected by the Bill of Rights.

That someone is violating checks and balances isn't really a cause of action; you would be more specific in your case.

  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.

Pretty sure they are going to keep doing it anyway.

Is Snowden a whistleblower now?

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

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?

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

more rules specifically allowing this behavior will have to be written into the bills. the specific ruling did not rest on the 4th Amendment but instead what was written into the Patriot Act which means, amend the Patriot Act and its back to court to try for a Constitutional issue

Does anyone know how this will be enforced?

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

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/

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

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

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.

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

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.

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.

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.

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

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).

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

That statement ended up proving to be quite ironic: https://en.wikipedia.org/wiki/Pope_John_Paul_II#Role_in_the_...

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

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.

How would you know who they are? I think their govt IDs identify them as DoD employees, not specifically NSA.

Section 709 on email and internet traffic untouched, though.

What about all the internet data they are collecting?

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