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.
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).
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.
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.
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.
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?".
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.
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."
"The Fourth Amendment protects against unreasonable searches and seizures" (italics in the original.)
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.
And Marcy Wheeler's got some excerpts as well: https://www.emptywheel.net/2015/05/07/2nd-circuit-rules-phon...
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.
The Surveillance State Repeal Act would be an even stronger reform than straight expiration. http://www.huffingtonpost.com/2015/03/24/surveillance-state-...
His concurring opinion starts at page 98.
http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18...
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.
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?
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.
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?
The spymasters will cry "terrorism!" and Congress will either be bought or intimidated into submission. Again.
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.
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".
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.
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?
I'm going to turn that into a sticker and stick it on my laptop.
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?
What is wrong with responsible whistleblowing of unlawful activity? I think it should be encouraged!
Whistleblowing?
The pendulum has swung too far away for this to be a credible objection. Yes, I do want to encourage what Snowden did.
I want as many Snowdens as we can muster. (I was once shadowbanned on HN for typing that sentence.)
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.
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...
> 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...
I don't see that happening. Obstructionism, pandering, lobbying and abdication of responsibility? Oh, we've got that in spades.
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
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=...
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.
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.
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.
https://www.aclu.org/files/assets/order_granting_governments...
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.
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.
That someone is violating checks and balances isn't really a cause of action; you would be more specific in your case.
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'.
> 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.
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.
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.
I think this quote applies here: "Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power" - Mussolini
Have you met FaceBook?
The laws he broke being immoral/unconstitutional/for the greater good is to be determined by the judge/jury, not the prosecutor.
A presidential pardon solves Snowdens issue, but does not change the law.
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.
s/current/any/;
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.
To his credit, Snowden did attempt to vet reporters as I recall. ;)
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)
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.
in other news, Indonesia's oppressive regime has been propped up by the USA. https://en.wikipedia.org/wiki/Suharto
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.
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.
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.