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NSA surveillance court decision

NSA surveillance court decision

Sorry, but I have too many other things on my plate right now to dig into this, even though it’s clearly an important decision which may eventually make its way to the U.S. Supreme Court.

A federal judge in D.C. has found parts of the NSA metadata surveillance program to violate the 4th Amendment.  The judge issued a preliminary injunction, but stayed his decision pending appeal.  While many people are taking the decision as obvious, in fact the Judge had to weave his way around Supreme Court precedent and other court decisions to the contrary.  Celebrations that the decision will hold up are premature.

Here is part of Professor Orin Kerr’s take on it:

In an astonishing opinion, Judge Leon of the DC District Court has held that the NSA’s bulk collection of telephony metadata violates the Fourth Amendment and has enjoined the entire program (stayed pending appeal). In this post, I’ll just describe Judge Leon’s reasoning. In another post later today, I’ll comment on the persuasiveness of its analysis (or lack thereof, in this case — Judge Leon’s opinion has several major flaws, in my view).

According to Judge Leon, the United States Supreme Court’s decision in Smith v. Maryland is no longer good law because “present day circumstances” are so unlike the facts of Smith v. Maryland that the Supreme Court’s legal reasoning “simply does not apply.” That is, Ludge Leon compares the facts of the one case, Smith, with the facts of the NSA program as a programmatic whole, and he finds that the facts of the entire NSA program are so different from the facts of Smith that the Supreme Court’s legal reasoning need not be followed….

Because of these four factors, Judge Leon concludes, he “cannot possibly” follow the Supreme Court’s decision in Smith v. Maryland. Instead, Judge Leon concludes that individuals have a “very significant expectation of privacy” against the aggregated collection and He then turns to the next Fourth Amendment step, reasonableness, and concludes that the NSA’s bulk metadata program is unreasonable because it does not survive a cost/benefit balancing: It is invasive, and yet Judge Leon does not think the NSA telephony metadata program is sufficiently effective to satisfy the Fourth Amendment.

Judge Leon recognizes that his holding conflicts with the reasoning of other district courts, but he expresses confidence that he is correct and that James Madison would be “aghast” at the NSA’s telephony metadata program.

The entire decision is here.


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I’m sure James Madison would be “aghast” at much of what our federal government does today. I’m not sure how that works into a legal argument, though.

And in fact there seems to be NO difference at all in the salient point in Smith v Maryland and NSA “metadata” collection today: you have no reasonable expectation of privacy of the record of telephone numbers you call because you know when you dial the number is being recorded by telephony equipment and may be viewed at any time by many of their employees. And since you know, or should know, that neither do those who call you have any such privacy right, the records of incoming calls aren’t private either.

It seems the Smith opinion is directly on point to me. But IANAL, so there is that.

Those records could be made private, requiring a warrant, by act of Congress. But absent statutory protection, this area is outside the Constitutional shield.

    Sanddog in reply to Estragon. | December 16, 2013 at 5:49 pm

    There is a huge, insurmountable gulf between a phone company that you willing contracted with compiling information for billing purposes and the Fed snatching up every bit of metadata on citizens “just in case” they might need it. The first is logical and lawful, the second is a gross attack on the constitution.

TrooperJohnSmith | December 16, 2013 at 4:51 pm

I’d write something about personal liberty, inalienable rights and government tyranny, but they probably have a “Conservative Blog Surveillance Unit” at NSA with some little rat-faced punk with gelled-up, rooster-comb hair looking in on the miscreants at L.I. After all the landscaping and yard work we’ve done around here, I’d hate to get the place all drone-splattered. I’m also sure the homeowners association would send my heirs a nasty letter about “…attracting hell-fire missiles or other government ordinance onto said property, in clear violation of Deed Restrictions: III.B.(1.)a.”

Yeah, that.

    LOL! Yeah – the feds probably have thick dossiers on all of us … but PB storage is cheap nowadays. Too bad these goobers know NOTHING about the Constitution, liberty, and tyranny.

In Smith, the police attached a single account with a pen register to see if he called one number. Even with this decision the police aren’t allowed to tail someone around town, dig up everything they can looking for a crime to arrest them for. right now the government is seizing everything about everyone and putting it into long term storage. Everything from what you read, to the thing you buy, who you call, to what dirty videos you may see online. This is not a joke, they likely have your password to your user account here. All someone at the NSA would have to do is query their database. this level of data collection is tantamount to the total removal of privacy and a violation of the 4th. A sword of domacles they hang over everyone’s head.

    Estragon in reply to imfine. | December 16, 2013 at 5:43 pm

    The legal point remains: you have no constitutional expectation of privacy for information you share with others (outside privileged communications).

    I didn’t say it was a good thing for NSA to collect the metadata on everyone, just that it does not fall under the 4th Amendment – and thus far, this judge is the only legal authority of which I am aware holding it does.

    Congress could limit what is done by statute, of course, if the people demand it. But just because we desire privacy in various areas does not make those areas automatically constitutionally protected.

      Sanddog in reply to Estragon. | December 16, 2013 at 5:52 pm

      Willingly sharing information with a cell phone provider is in no way like the government seizing your digital information with zero due process. Remember, the constitution wasn’t written to protect us from Verizon Wireless, it was written to protect us from The United States Government.

        platypus in reply to Sanddog. | December 17, 2013 at 10:04 am

        Just to be cranky, what happens when Verizon is a virtual arm of government? I ask only because the big three credit record agencies routinely provide full access to their records to child support agencies (and have done so for at least two decades of which I am aware). As a certified cranky person, I have a duty to wait for a case where incorrect info caused a government agency to wrongfully seize monies from somebody’s bank account (based solely on the existence of a child support order). And before anybody grumbles about deadbeat dads, let me state that most child support orders that are violated are for onerous amounts beyond the ability of the payer to cough up.

      imfine in reply to Estragon. | December 16, 2013 at 6:47 pm

      Which is completely wrong. the 4th prevents unreasonable searches and seizures of you and your documents and communications without probable cause and a judge to sign off on it. Your privacy is protected, privileged or not without a warrant issued upon probable cause. The government cannot get around this by bribing someone else to disclose. The prohibition is get the search itself. You need probable cause to even start.

      if I communicate via a message to a provider privately even if that message is simply to connect a message, that is a private message as well the message I intend to have routed. I have a reasonable expectation that my relationship with my provider is private. Saying it is not is a perversion of the principle of what is non-private. A non-private disclosure is akin to a public disclosure, I walk on to the street and pronounce something, or maybe a some words on my shirt, or a uniform. A private communication even if it involves 3 parties is still private. As limited as Smith was, it was a dumb decision.

PersonFromPorlock | December 16, 2013 at 6:24 pm

Maybe the thing to do is to start a fund to buy the same tracking information about the members of the Senate from their service providers, and make it available on the Internet. I can’t see what objection they could raise.

Subotai Bahadur | December 16, 2013 at 8:36 pm

Given that U.S. District Court Judge Richard Leon in fact has ruled against the NSA, the DOJ, and specifically the White House political operation…. what is his probable life expectancy? Especially noting that due to the filibuster being cancelled by the Democrats for judicial appointments; that Obama could name Jane Fonda to the bench as a replacement, and get her confirmed without hearings.

Subotai Bahadur

According to the source, Snowden didn’t dupe coworkers into handing over their passwords, as one report has claimed. Nor did Snowden fabricate SSH keys to gain unauthorized access, he or she says.

Instead, there’s little mystery as to how Snowden gained his access: It was given to him.

The judge’s life expectancy is not the issue. He will be fine. He, and his ruling, will ALSO just be ignored by the administration, just has the court was ignored in the NLRB matter. If it makes it to Justice Roberts and the Supremes, bet on Roberts fearing being ignored and ruling in favor of the administration, like he did with Obamacare citing a giant semantic fallacy as the basis.