Judge: NSA Phone Program Likely Unconstitutional

schwit1 writes in with the latest on an U.S. District Court ruling over NSA spying. "A federal judge ruled Monday that the National Security Agency's phone surveillance program is likely unconstitutional, Politico reports. U.S. District Court Judge Richard Leon said that the agency's controversial program, first unveiled by former government contractor Edward Snowden earlier this year, appears to violate the Constitution's Fourth Amendment, which states that the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' 'I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,' Leon wrote in the ruling. The federal ruling came down after activist Larry Klayman filed a lawsuit in June over the program. The suit claimed that the NSA's surveillance 'violates the U.S. Constitution and also federal laws, including, but not limited to, the outrageous breach of privacy, freedom of speech, freedom of association, and the due process rights of American citizens.'"

Comments

About time

[Todd Palin]

Now the NSA will appeal. Off to the Supreme Court it goes. About fucking time. It is time to enforce the fourth amendment. I hope there are many more fourth amendment challenges in the pipeline. The bill of rights is the only thing left to save us from government tyranny.

Re:About time

[Anonymous Coward]

Don't worry, even if they thought it wasn't below them to ignore this, the president's administration will make up an excuse to "justify" the agency's practices. Or come up with another dog and pony show of an "oversight" committee made up of people with a complete conflict of interest regarding privacy and constitutionality.

Re:About time

[ackthpt]

The problem with knee-jerk assessments, which most people are operating under (Fourth Amendment, unreasonable search and seizure) is that there are all sorts of vague bits of the constitution and other amendments which leave wiggle room for things which fall under "National Security" and have done for a long time.

There's this comical belief that Congress should have the ability to approve of War Powers, which the constitution clearly states are those powers reserved to the President. Which is a way of saying, what you think it should be and how it is is not always clear cut. There's always the possibility of a Split decision by the Supreme Court, where an opinion of the court states that in the time of war, or potential war, the Executive Branch may be delegated certain abilities. Defining when hostile threats are likely or not, that's not the purview of the court.

It will certainly, no matter how it is ruled, be interesting reading.

Re:About time

[i kan reed]

Yeah, last time this question got to the supreme court, the court's reaction was "you can't prove you're being spied on, go away"

And of course, we were being spied on, and the courts refusal to grant standing is one of many extremely poor choices by the court in the Bush years(they didn't stop with bad decisions when Obama arrived, not saying that).

Re:About time

[the eric conspiracy]

If a President is going to have War Powers, shouldn't there be a war going on?

Last I looked Congress are the ones that get to say when that is.

Re:About time

[Hatta]

Off to the Supreme Court it goes.

To get rejected for lack of standing, or some other legalistic mumbo jumbo.

Re:About time

[Jane Q. Public]

"The problem with knee-jerk assessments, which most people are operating under (Fourth Amendment, unreasonable search and seizure) is that there are all sorts of vague bits of the constitution and other amendments which leave wiggle room for things which fall under "National Security" and have done for a long time.

There's this comical belief that Congress should have the ability to approve of War Powers, which the constitution clearly states are those powers reserved to the President. Which is a way of saying, what you think it should be and how it is is not always clear cut. "

Wow. You have a pretty bizarre view of the Constitution. I suggest you sit down and actually read it sometime. Soon.

Re:About time

[Jane Q. Public]

"To get rejected for lack of standing, or some other legalistic mumbo jumbo."

No. There is no "lack of standing" excuse anymore. We now have proof beyond doubt -- many times over -- that the NSA's activities have chilled speech and caused corporations to go out of business.

Re:About time

[GodInHell]

The constitution says that the Congress shall have the power: "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" which sounds a lot like "war powers" to me. I must have missed the part where the Article I grants the president the power to declare war (hint, it doesn't).

Re:About time

[i kan reed]

I'm pretty sure they can't use the "no standing" argument anymore since Snowden documents showed the NSA was actually doing it.

Re:About time

[Hatta]

No. There is no "lack of standing" excuse anymore.

And who is going to correct SCOTUS if they choose to pretend that there is?

We now have proof beyond doubt -- many times over

We also have a SCOTUS that has been stuffed with authoritarian sycophants.

Re:About time

[Charliemopps]

No president has. They declare "police actions" and bypass the constitution. The federal government basically suspended the constitutional oversights on themselves during the civil war, and never saw the need to abide by it again.

Re:About time

[NatasRevol]

When a black body like the NSA oversteps their bounds, especially to the degree they’ve admitted, much less been reported, then they need to be stopped.

The real problem is this. You can’t do anything about it. You can elect all the new politicians you want. You can chuck out anyone you want in elected positions. The NSA isn’t elected, and isn’t going anywhere. And does know ALL the skeletons of those who are elected. So that they can be manipulated to not looking into the NSA activities.

THAT’S why they need to be stopped.

Re:About time

[Archangel Michael]

The wiggle room I'll give the NSA and other "Security" Agencies is enough to make the noose around their neck comfortable, but not enough to take it off completely. What the NSA has done, is created enough wiggle room to take the noose off their necks, and put it on everyone else's necks.

They say they "only" collect Metadata, well isn't that fine and dandy! I'm in the industry, and given enough metadata, you can reconstruct the data you need, and often better detail than it was before. And in the case of Databases, metadata IS the valuable bits needed to form the surveillance state. Since the data being monitored and collected can easily be tied back to a person / group, you've done nothing except remove the data only one step away from being a breach of the 4th Amendment, and nothing else. The same intrusion happens, and you're not fooling anyone, except those that parse words very carefully. Like Clapper's famous "non-lie".

Re:About time

[Jane Q. Public]

"And who is going to correct SCOTUS if they choose to pretend that there is?"

Everybody.

Look... SCOTUS is a branch of the Federal government, just like the other two. It is not immune from image problems (especially in recent years, when it has demonstrably failed to do its job again and again and again).

They just could not get away with that ruling, because everybody knows that it would be a lie.

And just in case you hadn't read your Constitution lately: SCOTUS judges are not "appointed for life." They are appointed during "good behavior". If they exhibit something that is not "good behavior" (as such a ruling would be), they CAN be removed from office.

Re:About time

[GodfatherofSoul]

Sounds great in theory, but it's political naivety at best to assume that's the way to resolve the situation. Google for what happens when any politician dares to claim we're not currently at war in Iraq or Afghanistan. The American people often stand in the way of the obvious solution.

Re:About time

[Desler]

And who is going to stop them exactly? That's before you get to the fact that the Supreme Court is in no way forced to hear the case even if there is standing.

Re:About time

[asylumx]

one of many extremely poor choices by the court in the Bush years(they didn't stop with bad decisions when Obama arrived, not saying that).

I'm glad some people recognize that this isn't anything new. When the Patriot Act passed, many of us saw this coming but it seems like all the outcry now is just too late. It was obvious that the gov't would data mine the entire population to accomplish their goal, and it was obvious that the data they were collecting and mining would end up getting misused by people all over the chain of command. Lo and behold, that is exactly what is happening.

This does need to go to the supreme court, and hopefully the court will see reason. I'm not sure what I expect to happen, though, since (as you mentioned) both parties have shown that this kind of surveillance is something they support.

Re:About time

[Qzukk]

and caused corporations to go out of business

That opens the door to the SCOTUS's other favorite "get out of hard decisions free" card: they can declare the point moot since their decision won't un-bankrupt the corporations.

Re:About time

[Desler]

Everybody

Look... SCOTUS is a branch of the Federal government, just like the other two. It is not immune from image problems (especially in recent years, when it has demonstrably failed to do its job again and again and again).

How cute and naive. The Supreme Court is immune to "image problems". Unless any of the justices have done something that Congress has decided they should be impeached for then they will face no consequences.

Re:About time

[Anonymous Coward]

> "And who is going to correct SCOTUS if they choose to pretend that there is?"
> Everybody.
> They are appointed during "good behavior". If they exhibit something that is not "good behavior" (as such a ruling would be), they CAN be removed from office.

It's politically unfeasible. The tyranny of the majority crushes your grass-roots movement of posting to /.

Re:About time

[LordLimecat]

IIRC, declaring martial law does require a war or insurrection.

Re:About time

[Jane Q. Public]

"That opens the door to the SCOTUS's other favorite "get out of hard decisions free" card: they can declare the point moot since their decision won't un-bankrupt the corporations."

No, it doesn't, because they don't have any way around the "chilling speech" issue.

Re:About time

[Jane Q. Public]

"How cute and naive. The Supreme Court is immune to "image problems". Unless any of the justices have done something that Congress has decided they should be impeached for then they will face no consequences."

*I* am naive? That's hilarious.

Try this on for size.

As James Madison famously wrote about in his Report of 1800, the Supreme Court is no more "immune" from politics than any other branch of the Federal government. Asserting otherwise is just plain ignorant.

Re:About time

[Hatta]

Everybody.

Oh aren't you adorable. Since when has even a significant percentage of "everybody" cared about adherence to the Constitution? The reality, if you actually talk to people, is that the vast majority of Americans would applaud SCOTUS for helping keep us safe from terrorists.

Look... SCOTUS is a branch of the Federal government, just like the other two. It is not immune from image problems (especially in recent years, when it has demonstrably failed to do its job again and again and again).

Image problems, no. If a SCOTUS justice embarassed the government, say by pulling a Rob Ford, he'd be impeached no problem. But no SCOTUS justice will ever be impeached for rubberstamping policies approved by both other branches of the government, even if they are blatantly unconstitutional.

They just could not get away with that ruling, because everybody knows that it would be a lie.

Both the President and Congress are perfectly happy living with that lie. The American people are too divided by party politics to even notice that they are being conspired against by both parties. SCOTUS would absolutely get away with that ruling.

And just in case you hadn't read your Constitution lately: SCOTUS judges are not "appointed for life." They are appointed during "good behavior". If they exhibit something that is not "good behavior" (as such a ruling would be), they CAN be removed from office.

And who is going to do that? The same Congress that has failed to censure James Clapper for perjury?

Re:About time

[TangoMargarine]

There's this comical belief that Congress should have the ability to approve of War Powers, which the constitution clearly states are those powers reserved to the President.

Throughout history, there tends to be a problem when the president can do whatever the fuck he wants without legislative oversight...

Re:About time

[DarkOx]

There's this comical belief that Congress should have the ability to approve of War Powers, which the constitution clearly states are those powers reserved to the President.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

What Constitution are you reading? The congress pretty clearly has the power to declare or not a war.

Re:About time

[mugnyte]

While I don't (yet) believe the NSA is blackmailing the rest of the government to obey its wishes, I don't think they are "going to be stopped" in any meaningful way. Instead, I think we're going to pick ever-more-hair-splitting rules for technology's use in policing. The reason effect is that they'll just go underground for a bit.

Re:About time

[TangoMargarine]

Supreme Court: "We don't recognize the standing of this 'Everybody' of which you speak. Next!"

Re:About time

[msauve]

There's this comical belief that Congress should have the ability to approve of War Powers, which the constitution clearly states are those powers reserved to the President.

Uh, have you actually read the Constitution?

Congress has the power to

"provide for the common Defence ... declare War, ... raise and support Armies, ... provide and maintain a Navy ... To make Rules for the ... Regulation of the land and naval Forces ... To provide for calling forth the Militia to ... suppress Insurrections and repel Invasions ... To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States..."

The President gets to be Commander in Chief.

The enumerated powers are pretty lopsided against your claim.

Re:About time

[NatasRevol]

If they're not going to be meaningfully stopped, then their version of blackmailing is already working.

There isn't any practical difference.

Re:About time

[Anonymous Coward]

If a President is going to have War Powers, shouldn't there be a war going on?

Dude, we've always been at war with Eastasia.

Re:About time

[Bill_the_Engineer]

There's this comical belief that Congress should have the ability to approve of War Powers, which the constitution clearly states are those powers reserved to the President.

Actually the constitution gives congress the ability to declare war. You are actually thinking about the War Powers Resolution of 1973 which allows the president to have 48 hours to notify congress that he committed armed forces to military action and they can't operate more than 60 days without authorization from congress or a declaration of war.

Anyway the War Powers Resolution wasn't used to authorize the NSA to collect phone data. It was explicitly given by Section 215 of the USA Patriot Act of 2001. This surveillance program was enacted by congress and approved by the president. This is not a case of executive power being abused, instead this is an abusive law.

Re:About time

[TangoMargarine]

And yet the only Supreme Court Justice to be impeached was in 1805.

http://en.wikipedia.org/wiki/Samuel_Chase

Oh, and they acquitted him.

Re:About time

[Desler]

*I* am naive? That's hilarious.

You're correct. Your naiveté is quite hilarious.

Try this on for size. [wikipedia.org]

Did you have some actual argument? Why would the president use that when the Supreme0 Court is siding with him?

As James Madison famously wrote about in his Report of 1800, the Supreme Court is no more "immune" from politics than any other branch of the Federal government. Asserting otherwise is just plain ignorant.

Get back to me when they actually do face a consequence. I won't hold my breath?

Re:About time

[Desler]

But...but...but the amorphous "everyone is going to make them pay!!!

Re:About time

[ackthpt]

If a President is going to have War Powers, shouldn't there be a war going on?

Dude, we've always been at war with Eastasia.

I think the general category is "Terrorists" and at least on specific one is "Al-Qeada", although "American Taliban", "Religious Extremists" and various other enemies of the State are used as needed. Should be a Bingo game - you get the park a peanut on a square each time one is mentioned in the news or in a press briefing.

Re:About time

[Jane Q. Public]

WHOOSH

It is the kind of decision I was replying to that is unfeasible.

They simply dare not do that. The public is fed up with them as it is. They really would be putting themselves in a very bad position if they were to make yet another decision that was both unpopular and obviously incorrect.

Re:About time

[fnj]

Look... SCOTUS is a branch of the Federal government, just like the other two.

But it's NOT like the other two, is it. Congress and the President can be overruled by the Supreme Court, but not the other way round. There is absolutely no recourse whatsoever to a Supreme Court decision, no matter how transparently false and arrogant. There is no appeal, period. Supreme Court justices serve FOREVER without accountability. The only way they can ever come to an end is (1) death, (2) voluntary retirement or resignation, or (3) impeachment. I can't even think of a case where incapacitation of a judge was ever tested. The nearest case was probably Justice McKenna serving with severe cognitive disability for ten years after a stroke, and then only retiring after being pressured by Chief Justive Taft.

Look, I'm not ready to present a detailed plan to fix that. I'm not even absolutely sure there is anything wrong with the design as-is. I'm just saying, the Supreme Court has completely unique power.

And just in case you hadn't read your Constitution lately: SCOTUS judges are not "appointed for life." They are appointed during "good behavior". If they exhibit something that is not "good behavior" ... they CAN be removed from office.

Yes, but only through impeachment. That is about as likely as a puff of smoke, organ music, and a voice from heaven appearing and saying "this is wrong". And when I said above that there is no recourse, consider this. Even if the Second Coming happens and a Justice is impeached and removed, that still does NOT vacate any of the rulings made while he was serving.

Re:About time

[Em Adespoton]

The problem with knee-jerk assessments, which most people are operating under (Fourth Amendment, unreasonable search and seizure) is that there are all sorts of vague bits of the constitution and other amendments which leave wiggle room for things which fall under "National Security" and have done for a long time.

There's this comical belief that Congress should have the ability to approve of War Powers, which the constitution clearly states are those powers reserved to the President. Which is a way of saying, what you think it should be and how it is is not always clear cut. There's always the possibility of a Split decision by the Supreme Court, where an opinion of the court states that in the time of war, or potential war, the Executive Branch may be delegated certain abilities. Defining when hostile threats are likely or not, that's not the purview of the court.

It will certainly, no matter how it is ruled, be interesting reading.

All this, whether true or not, only tangentially matters in real life.

You see, this case falls under the purview of "National Security" -- which means that all judges sitting on this case will also be under the umbrella of "National Security" -- which means they will be directly impacted by whatever decision is reached.

This makes it personal, and in the SC's best interests to get it right. Because now that they're involved, they have no privacy from the NSA until they rule otherwise. This also means that it's in their best interests to get it right sooner rather than later, because until they rule on the specific rights the NSA has, the NSA is operating with whatever rights it claims -- with a "legal" claim to spy on the court judges themselves.

This should indeed be an interesting ruling. The actual outcome, as you obliquely point out, probably won't be as interesting as the ruling.

Re:About time

[Hatta]

That's before you get to the fact that the Supreme Court is in no way forced to hear the case even if there is standing.

If they don't hear the case, the lower court ruling stands. The lower court ruling does not favor the NSA, so it cannot stand. Therefore SCOTUS *will* hear the appeal, the only question is on what grounds will they let the NSA win.

Standing is just one possible issue. It's entirely possible that they hear the appeal, but rule in the narrowest possible sense so that their ruling does not apply to any other case.

Re:About time

[Desler]

They simply dare not do that.

Because you say so?

The public is fed up with them as it is.

And yet they don't care.

They really would be putting themselves in a very bad position if they were to make yet another decision that was both unpopular and obviously incorrect.

Again, unless Congress decides to remove them from office so what? SCOTUS have made plenty of unpopular decisions. And yet not a single one had ever been removed.

Re:About time

[Desler]

They probably can't afford another of same.

Because they'll be voted out of office? Removed by Congress? What can they "not afford", exactly?

Re:About time

[Desler]

If they don't hear the case, the lower court ruling stands. The lower court ruling does not favor the NSA, so it cannot stand. Therefore SCOTUS *will* hear the appeal, the only question is on what grounds will they let the NSA win.

Of course they'll hear it if the circuit doesn't overturn it. SCOTUS won't let this decision stand. My point is that SCOTUS is under no obligation to hear an appellate case whether there is standing or not.

Re:About time

[Jane Q. Public]

Amazing how my plain words went right over your heads. How many of you tried to argue about something I didn't even say? So far I count 4.

So just to put things back in context:

GP: "Who will correct them?"

Me: "Everybody."

I did NOT write (as you seem to think, somehow) that everybody would "make them pay" or "try to remove them from office". I wrote "everybody will correct them".

They already have a bad reputation. Whether they are in danger of "being removed" is a completely different matter. If they were to make a decision like that, they'd get a hell of a lot of bad press, and history would certainly take note of it.

My comment about "good behavior" was just a historical note. Many people think they are appointed for life. they are not. It might work out that way in practice (so far, anyway), but there is no law that says so.

Re:About time

[Hatta]

the Supreme Court is no more "immune" from politics than any other branch of the Federal government

All three branches are immune from politics, when it comes to national security issues. There's a reason why blatantly illegal practices have near unanimous support amongst our representatives, and it's not because our government is a functioning democracy.

Re:About time

[Anonymous Coward]

The Patriot Act was passed in both the senate and house of representatives with a veto proof 98 senators and 357 house representatives.

It was reauthorized in 2006 with a veto proof 89 senators and an almost veto proof 280 house of representatives.

Quit blaming the presidents when congress is fully invested in the law.

Re:About time

[quarterbuck]

Well if the supreme court rejects it (ie refuses to hear the case), the lower courts ruling stands.
If the supreme court hears it, but says metadata collection is legal, then it becomes admissible evidence in court. So FBI/DEA/local police etc. can legitimately request it.
I cannot think of a way in which this data is considered OK (ie data is public), but the aggregation of data is private and cannot be seen in any court other than one court. But then I am not a lawyer or a judge.
Supreme court has previously ruled that addresses on envelopes are legal to collect even if the contents of the envelope are private. This was one of administrations justifications for the data collection.

Re:About time

[Desler]

I'm sure they're simply quaking in their boots about the "everybody that will correct them". Except then you rejoin the real world where they don't give a shit.

Re:About time

[Hatta]

Forgive us for assuming that you meant they would be corrected in some meaningful manner. I can sit here all day and "correct" the SCOTUS for making a terrible decision in Wickard v Filburn(1942). It doesn't make a damned bit of difference. Nobody cares what I say, and nobody is going to care what you or any other armchair justice says when the SCOTUS rubberstamps NSA surveillance. The only correction that matters is one that has actual policy implications.

Re:About time

[Jane Q. Public]

"There is absolutely no recourse whatsoever to a Supreme Court decision, no matter how transparently false and arrogant."

Spoken like someone who is truly ignorant of history. Nothing personal meant. That is the same bullshit that I learned in public school. But when I started to actually study history, OUTSIDE of school, I learned many things that opened my eyes.

There *IS* an authority to fall back on, outside Supreme Court decisions. That authority is the States. The States delegated this authority to the Supreme Court. They did not set the court up as the "final" arbiter of Constitutionality. That power is reserved to the States.

James Madison, in his Report of 1800 before the Virginia legislature (in which he explains the Virginia Resolutions of 1798, emphasis mine):

"However true therefore it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact [the States], from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve."

In other words, the States can decide that even the Supreme Court has overstepped its bounds, and nullify laws passed by Congress even if the Supreme Court has not struck them down. Any other idea is a logical falsehood. Many writings by the founders, and the debates prior to ratification of the Constitution, verify this. The States did not give "ultimate" power to the Supreme Court. That, they reserved for themselves.

Re:About time

[Bartles]

And it was reauthorized again in 2011, signed into law in the middle of the night by the current President.

Re:About time

[Jane Q. Public]

"Did you have some actual argument?"

Yes, I had an actual argument, I made it, and I cited a reference.

The point, which apparently went right over your head even though I stated it in plain English, was: The Supreme Court is not "immune" from politics. And I gave you a link which proves that point.

Do YOU have any actual argument?

Re:About time

[Desler]

And before someone comes along, I know they are not elected. That was my point. These "they'll be corrected!!" threats are silly.

Re:About time

[Em Adespoton]

"That opens the door to the SCOTUS's other favorite "get out of hard decisions free" card: they can declare the point moot since their decision won't un-bankrupt the corporations."

No, it doesn't, because they don't have any way around the "chilling speech" issue.

Sure they do...

"With a name like Snowden, it is obvious that this is a criminal who not only chills things, but steals and hides them too. As we cannot allow such criminal activity of speech chilling to exist in the US, we MUST give the NSA the full powers duly needed to stamp out such abuses of our constitutional rights."

Who's going to call them on it (in a way that will make a difference)?

Re:About time

[Bartles]

The NSA operates at the direction of the President. When they overstep their bounds, it is the President's duty to stop it, and fire those responsible. It is long past the time to actually start blaming the person responsible for the NSA's actions.

Re:About time

[Desler]

In other words, the States can decide that even the Supreme Court has overstepped its bounds, and nullify laws passed by Congress even if the Supreme Court has not struck them down.

That's got to be the funniest post you've made yet. The states will do jack and shit because:

1) It's doubtful any majority of state governments are against this
2) Even if there was such a majority, the Federal government would simply use the threat of cutting off the 10s of billions in funding they give to the states leaving them with huge budget holes.

Re:About time

[Desler]

Great, so why would a president use that against a court that was siding with him?

Re:About time

[Anonymous Coward]

I do. The FBI systematically did so under J. Edgar Hoover. Various Presidents have effectively wielded the power the IRS to do so. Why wouldn't the NSA?

Re:About time

[Desler]

"Corrected" by legal scholars, and later by the history books. And probably by a later Supreme Court.

Oh lord! They're sure to faint from such a horror!!

But don't discount this. The written word has power. Supreme Court justices do not want to be remembered by history as idiots.

Yeah, because that has stopped the court from making bad decisions before right? Riiiiiiight.

Re:About time

[Jane Q. Public]

"And before someone comes along, I know they are not elected. That was my point. These "they'll be corrected!!" threats are silly."

Do you know what the word "corrected" means?

You say something that is incorrect.

I correct you.

What about that do you not understand? It doesn't imply that I want to completely get rid of you. This whole argument is silly.... over something I didn't even say.

Re:About time

[Actually, I do RTFA]

I must have missed the part where the Article I grants the president the power to declare war (hint, it doesn't).

Of course it doesn't. Article I grants powers to Congress. Article II that grants powers to the President.

Re:About time

[Desler]

Oh no! "Being corrected"!!! I sure they will simply die of fright from the mention!

Re:About time

[achbed]

Yeah, last time this question got to the supreme court, the court's reaction was "you can't prove you're being spied on, go away"

The judge in this case recognized this fact, and explicitly answered it. The answer is: See now unclassified NSA and FISC documents.

Since this is now in the open, can the original case be brought back up?

Re:About time

[BlueStrat]

They simply dare not do that. The public is fed up with them as it is. They really would be putting themselves in a very bad position if they were to make yet another decision that was both unpopular and obviously incorrect.

I'll bet an internet that this goes first to the Federal 9th Circuit Court of Appeals that will most likely reverse the decision of Judge Leon, and then the SCOTUS will simply not grant certiorari and not comment on the reason, effectively deciding without deciding by allowing the lower court reversal decision to stand.

Strat

Re:About time

[Anonymous Coward]

It is the "War on Constitution". So far, the government is winning.

Re:About time

[achbed]

"But...but...but the amorphous "everyone is going to make them pay!!!"

That isn't what I wrote. Maybe try working on your reading comprehension? GP: "Who will correct them?" Me: "Everybody" I did not write that everybody was "going to make them pay". I wrote that "everyone" would correct them. People do write about Supreme Court decisions, you know. And some of them have been famously bad. Today's SCOTUS already has a bad reputation, for making bad decisions. They probably can't afford another of same.

Bad decisions by SCOTUS are still in-stone precedent until another case makes it back onto the docket. At which time they can ignore, affirm, or reverse themselves. Once a case is decided (even badly), it usually takes decades for another case to make its way onto the docket. No amount of bad press, riots, or military action with change that (unless you're talking about the complete overthrow of the entire government, along with all laws and case history - good luck with that).

Re:About time

[achbed]

The written word has power. Supreme Court justices do not want to be remembered by history as idiots.

Except that the victors write the history books. So they're not idiots - they're patriots. At least in their heads.

Re:About time

[naasking]

Data mining was just used to capture a large Food Stamp fraud ring in Florida. There really are public benefits to allowing snooping in depth. [...] Income tax cheaters really could be destroyed by data mining. You can bet we have a couple of million people who are tax cheats.

These types of fraud are not caught by data mining their phone and e-mail records, they're caught by analyzing the usage data they already have access to and look for unexpected patterns, just like we check for rigged elections. There are fe wpublic benefits to snopping in depth, and the number of false positives drown out any true positives they may return.

Re:About time

[achbed]

In other words, the States can decide that even the Supreme Court has overstepped its bounds, and nullify laws passed by Congress even if the Supreme Court has not struck them down.

That's got to be the funniest post you've made yet. The states will do jack and shit because:

1) It's doubtful any majority of state governments are against this 2) Even if there was such a majority, the Federal government would simply use the threat of cutting off the 10s of billions in funding they give to the states leaving them with huge budget holes.

State nullification of Federal law is not allowed. There was a little thing called slavery that brought that argument (and the succession argument) to the fore. Didn't turn out so well for anyone, but the question was answered for the next hundred years or so. Or are you suggesting that we should put them back on the table?

Re:About time

[achbed]

The only thing? Not so. 'We' did it in 1776, and 'we' can do it again.

Bwahahahaha... (as if)

No, we can't. We'd be branded terrorists and subject to drone strikes and rendition. The major difference between then and now is that we're living in the same land as the oppressors, with instant deployment capability - back then it took a couple months to get troops and intel back and forth.

Re:About time

[Jane Q. Public]

"State nullification of Federal law is not allowed."

Hahahaha! This is the funniest thing I've read today. And like many other people, you have a false impression of what effect slavery actually had on the issue.

State nullification has been used, successfully, every year of our 200+ year history as a country.

It was used -- successfully -- by the North to nullify the Fugitive Slave laws. In its Declaration of Secession, this was the very first thing South Carolina listed as reasons for seceding. Other states also listed it, but none of the others listed it as the first reason.

It has been used MANY times since, and is in active use today. What do you think State "medical" marijuana laws are? They are EXAMPLES of SUCCESSFUL State nullification of Federal laws.

It has been used to nullify Federal marijuana laws. It has been used to nullify Federal firearms laws. It has been used (by 26 states!) to nullify the Federal "Real ID Act".

To say that it is "not allowed" is just laughable. It is done ALL THE TIME, and there isn't a damned thing the Federal government can do about it.

Re:About time

[MightyMartian]

The issue has long been that the President, as Commander in Chief, can create conditions that make Congress's declatory powers moot.

Re:About time

[Jane Q. Public]

"That's got to be the funniest post you've made yet. The states will do jack and shit because:"

States "nullify" Federal laws all the time. Just recently, Washington and Colorado gave a big "Fuck You" to Federal marijuana laws... and there isn't anything the Feds can do about it.

This State nullification has a long and successful history. So laugh all you like. It doesn't make a damned bit of difference.

Re:About time

[Jane Q. Public]

Nice way to try to pretend it wasn't a "WHOOSH" moment, eh?

It's not my fault you misunderstood what I wrote. It was pretty plain English. The context was pretty clear.

Re:About time

[Jane Q. Public]

"Great, so why would a president use that against a court that was siding with him?"

And that's called "moving the goalposts". The question I was responding to was whether the President could do anything, not whether I think (or he thinks) he should do something. Those are two completely different things.

Re:About time

[Jane Q. Public]

"Except that the victors write the history books. So they're not idiots - they're patriots. At least in their heads."

"The victors write the history books" was a comment about wars. The point there was that the losers aren't around to write the books.

I don't think it really applies to Supreme Court decisions.

Re:About time

[Anonymous Coward]

And it was reauthorized again in 2011, signed into law in the middle of the night by the current President.

Because they were set to expire at midnight and the bill had only been passed that day. I think that was was a huge mistake too, but enough with the bullshit theatrics.

Re:About time

[Immerman]

How is that going to correct anything? Anyone can say the Supreme court was wrong, heck there's usually a sizable group who do so on any given decision. But how would we go about actually correcting (i.e. overturning) the ruling if the Supreme court decided to back the play of Congress and the President? Short of popular uprisings I'm not seeing a lot of options. Do you really think the amorphous long-term threat of a black-ops surveillance state is going to motivate such a thing? Personally I suspect such uprisings will not gather momentum until the velvet glove begins to come off this particular iron fist, at which point the fight will likely be far bloodier.

Re:About time

[Immerman]

No, correcting implies a change, you are have only described stating an opposing position. You've only corrected me if (1) my beliefs and behaviors change based on your statement, or (2) you prevent me from misleading others.

Re:About time

[Anonymous Coward]

[[ Supreme Court justices do not want to be remembered by history as idiots. ]]

That's as may be, but nearly half of them seem to be completely unconcerned about being remembered as venal partisan assholes.

Re:About time

[achbed]

It has been used to nullify Federal marijuana laws. It has been used to nullify Federal firearms laws. It has been used (by 26 states!) to nullify the Federal "Real ID Act".

Actually, the Medical Marijuana laws (and Colorado's new law) are not nullifying Federal law. They are a separate set of laws for handling drug cases that come up for prosecution at the state level (or instructing local law enforcement to ignore those cases entirely). If the FBI picks you up for trafficking in those states, you're not going to state court, but federal court. And in those courts, I guarantee you that nullification will not be allowed as a defense. I would not call that "successful" nullification - I'd call that lack of enforcement by the locals. As for the Fugitive Slave laws, they were a direct response to separate state and federal enforcement of law, and followed a Supreme Court case stating that all enforcement of Federal slave laws must be done by Federal agents (see Prigg v Pennsylvania). They were not nullification in any sense - they were exactly the same as the Medical Marijuana today. The REAL ID act is more interesting - it's a Federal requirement that states implement a program without any true legal reasoning or real enforcement mechanism. This is the closest we've come to an example of actual nullification, as we have conflicting laws with the same jurisdiction. Last I heard, the states were no longer required to implement it, but their citizens would be required to get federal ID (ie, a Passport) if they needed to prove identity to any Federal agency (including the TSA). At the end, they were handing out administrative waivers like candy, so it might be a moot point now. I'm waiting for that one to pop back up on the radar tho - it's an unanswered question as far as I know.

Re:About time

[roccomaglio]

Did the presidents veto it? No. Then they are to blame too.

Re:About time

[noh8rz10]

yeah but if the pres attacked someone unilaterally then we would certainly be in a state of war. would you impeach and depose a sitting president during wartime? I didn't think so.

Re:About time

[Jane Q. Public]

"Actually, the Medical Marijuana laws (and Colorado's new law) are not nullifying Federal law. They are a separate set of laws for handling drug cases that come up for prosecution at the state level (or instructing local law enforcement to ignore those cases entirely)."

That's what nullification *IS*. It is State refusal to obey, or cooperate with, Federal law.

"If the FBI picks you up for trafficking in those states, you're not going to state court, but federal court. And in those courts, I guarantee you that nullification will not be allowed as a defense."

You aren't getting it. Nullification is not a "defense" in court. That isn't the way it works.

"State nullification" refers to States refusing to comply with, cooperate with, or obey Federal laws that they believe to be unconstitutional. As in the example I gave earlier: Washington and Colorado legalizing marijuana for "recreational" use. This is very, very much against Federal law. The States are doing it anyway. That is a textbook example of "nullification".

YOU are referring to some kind of "official" vote of the states to formally somehow "nullify" Federal law. But that's not the way it has ever been done.

The main point here, however, is that while it might not be the "formal" process you envision, it IS done. Frequently. And successfully. And has been done that way (as I mentioned before) repeatedly and successfully for 200+ years.

Re: About time

[Anonymous Coward]

Guess you missed the veto proof majority vote part. But that won't stop the "any opportunity to blame Obama" thing.

Re:About time

[AndrewBuck]

And you know this how? I voted for Obama the first time because he was an obviously better choice than McCain/Palin (at least in my opinon anyway) but I did not vote for him in the second term because I saw how he failed to live up to what he promised and therefore he didn't get my vote.

In case you are wondering in 2012 I voted for the candidate who was arrested during the campaign. I will leave it as an excercise to the reader to work out who this was.

-AndrewBuck

Re: About time

[chihowa]

While's it's true that a "veto-proof" majority will be able to pass a law, it doesn't mean that the president is barred from attempting to veto it (even though the veto will likely be overridden). The president vetoing a bill that will pass anyway is a form of protest. The president signing a bill is a declaration that he accepts and agrees with the bill. Any other interpretation is just politics.

Re: About time

[AndrewBuck]

Even if they had a veto proof majority the president can still veto the bill as a symbolic act that they do not support it. I am too lazy to look up the history of the veto to find out how often this has occurred but I am sure there have been instances of it, and in a properly functioning system of checks and balances it should actually be a fairly common thing. Look at how often the house and the senate disagree about various issues even though (gerrymandering aside) it is the same pool of voters electing both bodies.

If the president vetoes and it goes back through the houses and becomes law anyway, this is still a different situation than if the president just signs it with no opposition (or with a bullshit signing statement with no actual legal weight behind it).

-AndrewBuck

Re:About time

[HornWumpus]

My hope is that in Snowden's insurance file is the NSA file on all sitting congresspeople, federal judges, members of the last 10 executive branches and the Fortune 500.

Re: About time

[icebike]

Guess you missed the veto proof majority vote part. But that won't stop the "any opportunity to blame Obama" thing.

Seriously, a presidential veto on a subject like this would only be overridden if it were a pre-arranged "sweetheart deal".
Had Bush or Obama had the balls to stand up and say NO, I won't sign it, their party loyalists would follow suit.

Veto proof majority is only veto proof up to the point of calling for the vote to over ride it. From then on, all bets are off.

The truth of the matter is that the administration(s) pulled out all the stops to force approval of these ridiculous laws, twisting arms, making promises, and spinning boogie-man under the bed stories. If the administration suddenly changes course, the flock would follow in lock step.

It was never veto proof. That's total fiction.

Re: About time

[icebike]

It would not be overridden.

If obama vetoed it, the democrats would fall in line. The same would have happened with the republicans if Bush over-rode the re-authorization.

They would not override this. Neither party would. Not 10 years after 9/11.

Re:About time

[RespekMyAthorati]

What kind of war?
War on Terror?
War on Drugs?

Re:About time

[LordLimecat]

One declared by congress.

Re:About time

[citizenr]

Appeal? They will phone this judge and inform him about some interesting stuff they happen to have on file. A week from now this judge will be making public apologies to the NSA.

Re:About time

[DarkFencer]

All three branches are immune from politics, when it comes to national security issues. There's a reason why blatantly illegal practices have near unanimous support amongst our representatives, and it's not because our government is a functioning democracy.

I wouldn't say near unanimous by any means. There are lots on the edges of the right and left who were against this. The Amash amendment, which would have drastically reined in the data the NSA collected (not as much as necessary, but a good start). It failed in the US House by only 217-205. Of those voting for the amendment, it was 111 Democrats, 95 Republicans.

That it failed was disappointing but it shows that we're not that far from having a majority for bills like this. We just need to get more of the establishment folks on both sides out of office.

Re:About time

[TheGratefulNet]

armed thugs throw you into jail on trumped up charges. you 'correct' them by showing them they have no evidence.

but you are still rotting in jail.

a lot of good so-called 'correction' does when its just words and hot air.

Re:About time

[TheGratefulNet]

'corrections' that come a few generations from now are TOO LATE.

this is what people are yelling at you for. there won't be any change in the short-term and by the time your 'correction' has real affect, some of us may be too old to even care anymore.

Re:About time

[TheGratefulNet]

if the Corporations (blessed be) made a stink, there would be a chance the scotus would make a change in policy. but there is no real complaining (in reality) by the Real People (s-corps and c-corps) and the little people don't matter anymore. we have been told many times 'we have no dog in this fight' (no standing).

we can all see where the hearts are in the supreme court. few of us have any real hope of them doing the right thing anymore.

Re:About time

[TheGratefulNet]

In other words, the States can decide that even the Supreme Court has overstepped its bounds, and nullify laws passed by Congress even if the Supreme Court has not struck them down.

oh yeah? tell that to the states that have allowed medical pot and yet the fed has continually come in and shut down state-legal dispensaries in every single state that dared to have them.

the fed government still wont' bend on this issue even when the voters in many states have told the gov that enough is enough and we want this to be legalized.

states rights don't seem to matter when its inconvenient (or contradictory) to what the fed gov wants.

the fed gov wants the nsa to spy on us. therefore, the states can go fuck themselves.

Re:About time

[CuteSteveJobs]

Before it was terrorists, it was smugglers. http://libertyfirstfl.org/?p=253

Re:About time

[TheGratefulNet]

yet, physical letters have very small and narrow 'meta data' elements.

otoh, electronic comms (of all forms) has countless bits of meta data and is much more privacy-eroding if you collect and collate them than simple to/from addresses.

you don't know the time of day the letter was mailed. you don't know who handled it, who wrote it, how much internal data there is, or even if the letter was forwarded, who the chain was. all you can see is one 'to:' and one 'from:'.

to say that we take our cues on e-privacy from physical LETTERS is absurd beyond belief. it would be laughable if it were not so pathetic, that they use this argument to justify e-snooping.

Re:About time

[Bite The Pillow]

You replied to " blame congress also" with "blame the president also".

And at least 3 people thought it was important enough to waste mod points on.

I'm going to cry for you all when I get home, and hope you learn about context. It helps.

Re:About time

[shadowofwind]

I don't think that blackmailing of any sort is the reason they're not going to be stopped.

It won't stop because most people don't care very much, or it represents a kind of abuse of power which they favor. Same reason the drone war won't stop any time soon either.

Re:About time

[Bite The Pillow]

Law is slow. Due process is slow.

I'm not worried about this being thrown out - it will be.

I'm worried that a law will be passed the next year that takes 15-20 years to be thrown out.

Unless you want to revolt against an army of drones, the only option is choosing carefully for whom you vote, to prevent bad law.

Re:About time

[Bite The Pillow]

There is a huge difference this time. The NSA is on record both lying and clarifying. Standing will not be an issue unless the briefs are incompetently written.

Re: About time

[fizzer06]

War on poverty.

Re:About time

[Uberbah]

Oh aren't you adorable. Since when has even a significant percentage of "everybody" cared about adherence to the Constitution? The reality, if you actually talk to people, is that the vast majority of Americans would applaud SCOTUS for helping keep us safe from terrorists.

Oh, is that why calls were 100 to 1 against giving telecoms immunity for their illegal spying, from both the left and the right. So put away the FUD already.

Re:About time

[Uberbah]

I must have missed the part where the Article I grants the president the power to declare war (hint, it doesn't).

And they have. Time and time again. cf. The Gulf of Tonkin Resolution, the War Powers Act, and the AUMF.

Only if the nation is under attack or about to be attacked. Authoritarians usually leave that part out, though. AUMF and Tonkin are red herrings since Congress gave their approval to the start of those wars.

Re:About time

[Uberbah]

IIRC, declaring martial law does require a war or insurrection.

Not just a war, but an invasion and/or insurrection. And the power to suspend habeas corpus is a power of Congress, not the President. So while the Civil War obviously qualified as an insurrection, Lincoln's suspension of HC was unconstitutional, since he did not go through Congress to do it.

Re:About time

[Phreakiture]

I will leave it as an excercise to the reader to work out who this was.

Quit the bullshit. This isn't school and you aren't our professor. It was Jill Stein of the Green party.

Re:About time

[ai4px]

The constitution says that the Congress shall have the power: "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" which sounds a lot like "war powers" to me. I must have missed the part where the Article I grants the president the power to declare war (hint, it doesn't).

The problem with the president going to war without congress having declared it is that Congress has two lines of recourse... 1)Impeach, 2)defund the military. Thanks to political ideologues, impeaching the current president would be impossible, and 2)defunding the military is political suicide when it is sold to the public as not supporting the troops.



You may recall from the vietnam era that congress enacted the war power act that gave the president the authority to dispatch the military w/o congress declaring war, but he had to answer to them within 60-90 days. BHO has all but snubbed his nose at this and said it is unconstitutional. Funny how he seems to pick and chose what is and is not constitutional.

Re:About time

[ai4px]

We'll have martial law before the 2016 election. All it will take is a small tweak to the SNAP welfare system and there'll be riots. Once we have riots in multiple cities, the natural progression will be martial law. Good thing the DHS has been "giving" away MRAPs to a bunch of cities... just in time too.

Re:About time

[ai4px]

The NSA operates at the direction of the President. When they overstep their bounds, it is the President's duty to stop it, and fire those responsible. It is long past the time to actually start blaming the person responsible for the NSA's actions.

.....unless that president happens to be named JFK and then the agency stops him.

Re:About time

[NatasRevol]

The NSA operates at the direction of the President

In theory.

Not so much in practice.

Re:About time

[NoImNotNineVolt]

Jill Stein is fucking awesome. She got my vote too. And the votes of many of my friends.

Another opportunity to remind people to stop throwing away their votes. Stop supporting the establishment, vote third party.

Re:About time

[Bartles]

Yeah, the NSA is constantly disobeying presidential directives. Look at all the effort the administration has expended trying to get them to stop.

Re:About time

[Anonymous Coward]

"How cute and naive. The Supreme Court is immune to "image problems". Unless any of the justices have done something that Congress has decided they should be impeached for then they will face no consequences."

*I* am naive? That's hilarious.

  Try this on for size.

You did *read* that article, right?

Not only did the bill flop in Congress, but when it did, it pretty much killed all the support Roosevelt had for further expansions of his power. That bill is known in American history as *the* classic example of a powerful branch of government over-reaching and being reigned in.

You're probably thinking of "Switch in time that saved Nine" interpretation, which says the Court backed down in order to prevent the Judicial Reform bill from passing...but that is a disputed interpretation.

As James Madison famously wrote about in his Report of 1800, the Supreme Court is no more "immune" from politics than any other branch of the Federal government.

A lot has happened since 1800, including the Marbury case that was basically the making of the Court.

Re:About time

[NatasRevol]

Possibly because of blackmail?

They've already assassinated one president.

Re:About time

[Bartles]

I see. In actuality Barack Obama would really, really, like the NSA to stop spying on us. But he fears for his reputation if he were to actually act and do something about it. Perfectly understandable, all is forgiven, carry on.

Re:About time

[NatasRevol]

Wow, that was a miss by you.

No, he fears for his life.

Re:About time

[micahraleigh]

I can't believe you are equating the Patriot Act with what the NSA is doing today.

Re:About time

[Bartles]

Yeah, and you can see a missile hit the plane before it struck the building.

Re:About time

[Bartles]

It's funny, they sure seemed to care when we had a Republican President in office.

Re:About time

[Bartles]

I get the feeling that there are a lot more people that say they voted for Jill Stein, than there were that actually voted for Jill Stein.

Re: About time

[sjames]

I didn't miss the almost (meaning not actually veto proof) for the 2006 re-authorization.

Re:About time

[fatphil]

Humans are an inferior order and altogether unfit to associate with corporations. They had no rights that coporations were bound to respect.

Re:About time

[RespekMyAthorati]

Nothing applies to Supreme Court decisions, except the decisions themselves.
And these senior citizens will be long dead before anything is done about their bad decisions.

Re:About time

[RespekMyAthorati]

Of course, that's why the Southern states went along with the civil rights decisions of the sixties without the slightest protest.
Because if they hadn't liked these decisions, they could have just "nullified" them.
ROFL!

Re:About time

[RespekMyAthorati]

Except that nullification, as you describe it, has nothing to do with the NSA.
The NSA is a federal institution, and the states have no jurisdiction. Unless you seriously believe that Maryland residents are going to burn it to the ground.

Give it up, Jane. You're making a fool of yourself.

Re:About time

[Jane Q. Public]

"The NSA is a federal institution, and the states have no jurisdiction. Unless you seriously believe that Maryland residents are going to burn it to the ground."

You don't get it, do you?

The NSA can't do anything without the State's cooperation. If Utah shut off the water, that big new data center would shut down.

The whole point here, is that the Feds can't force the States to do things they don't want to do, NOR can they enforce much of anything that is even purely "federal jurisdiction" without assistance from a State. They just don't have the manpower, OR the budget. It's been tried. It doesn't work.

I repeat: the Feds think Marijuana is "strictly Federal jurisdiction", too. The States disagree. Who lost? The Feds.

Re:About time

[shadowofwind]

That's true, sort of like how Republican's pretend to care about limiting spending, but it keeps going up whenever they control both houses and the Presidency. I think having a Republican president and a Democratic congress would help some with the surveillance stuff for that reason: the Democrats pretending to care about executive over-reach would slow it a little. But despite the talk people like Feinstein and Pelosi would still be behind it when it mattered. They're cowards and they're too deeply connected to the money through stock and other interests. Plus a lot of the programs they support are secret, so nobody can call them on it.

Re:About time

[Pseudonym]

The Patriot Act was passed in both the senate and house of representatives with a veto proof 98 senators and 357 house representatives.

...and is implemented using secret legal interpretations, using secret programmes, with the degree of compliance of the law also being secret. By "secret", I of course mean "withheld from Congress".

Congress has lot to answer for, don't get me wrong. But they were as much in the dark about all this as you were. And unlike you, they didn't even have reason to suspect what was going on.

Re:About time

[GodInHell]

If the poor were going to riot over losing their access to government programs, we would have been drenched in blood decades ago. If your fantasy race-war doesn't occur will you reconsider your position? (Do you even believe that or is it some kind of quasi-trolling live action role-play?) I trust we can call you a vote for the Democratic party in 2016 - since you feel the Supplemental Nutritional Assistance Program (i.e. foodstamps) is so key to the stability of the nation?

Re:About time

[GodInHell]

The war in Korea used the same gimmick as was used in Vietnam.

No it didn't. Korea was authorized (or not, you're welcome to your opinion on this untried argument) under the U.N. Treaty after a declaration by the U.N. Security Counsel authorizing intervention in Korea. Vietnam was authorized by the Gulf of Tonkin resolution (See Wikipedia) which was an act of congress authorizing the President to use military force. Check out this helpful article by the Atlantic for more information on the history of U.S. wars and interventions:

Re:About time

[GodInHell]

BHO has all but snubbed his nose at this and said it is unconstitutional.

citation needed.

NSA Press Release

[mythosaz]

"That's nice."

-NSA Press Secretary

Re:NSA Press Release

[gVibe]

My sentiments exactly...Does anyone really think that the NSA cares whether something they are doing is constitutional or not. Technically, the very existence of an organization such as the NSA would be unconstitutional by its very design.

Yea but nothing happened

[schneidafunk]

FTA: He said was staying his ruling pending appeal "in light of the significant national security interests at stake in this case and the novelty of the constitutional issues."

Re:Yea but nothing happened

[robinsonne]

Nothing was going to happen anyways since this guy's verdict is restricted to only his court's jurisdiction. Unless the SCOTUS wants to weigh in and give the (correct) answer, and have the attorney general prosecute the law breakers, if everyone doesn't get automatically pardoned anyway, nothing will happen regardless.

Re:Yea but nothing happened

[schneidafunk]

He's a federal judge. If he did not stay the ruling, the NSA would be forced to stop. Granted there is obviously going to be an appeal, but during the appeal process the NSA would have to follow the original ruling.

Re:Yea but nothing happened

[Desler]

So what? His judgement still only applies to his jurisdiction. Since he's a district court judge it is quite a limited one.

Re:Yea but nothing happened

[schneidafunk]

His verdict applies tothe entire country. His 'limited jurisdiction' only applies to the types of cases he can take, not to a specific region.

"In general, federal courts may decide cases that involve the United States government, the United States Constitution or federal laws, or controversies between states or between the United States and foreign governments. A case that raises such a "federal question" may be filed in federal court."

http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/Jurisdiction.aspx

Re:Yea but nothing happened

[starcraftsicko]

Also, If he hadn't stayd his ruling, the NSA would have rushed to the appeals court and gotten an emergency stay. And it would have been granted too. By staying his own ruling, he is just doing the reasonable thing. Whatever the collective opinion of slashdot, this is a ruling that would require a substantial change on (relatively) longstanding POLICY. The appeals court WILL want to look at this. They will write opinions. They may send it back to him on a technicality, but it will go back to the appeals court again either way. It WILL be appealed to the supreme court.

Staying his ruling gives his opinion a better chance of standing on appeal. He appears reasonable, decisions by unreasonable people are easy to overturn, & the reverse is true as well. And I'm sure even appeals judges remember if they have to miss an important event to rule on an emergency stay made necessary by an unreasonable judge.

Failing to stay the ruling would have been a dick move and would not have made any diference. Unfortunately.

Follow up Headline

[TheGeneration]

"NSA decides it doesn't care what the constitution says and keeps on doing what it wants."

Re:Follow up Headline

[i kan reed]

I'm pretty sure you could start arresting people at that point, though.

Re:Follow up Headline

[Man On Pink Corner]

"You could, but frankly, we'd rather talk about the 16.76 GB of underage duck-rape porn that you downloaded between August 6, 2004 and September 30 of the same year. Why don't you have a seat over there?"

Re:Follow up Headline

[i kan reed]

They told me they were hatched!

Re:Follow up Headline

[arisvega]

"Why don't you have a seat over there?"

"No, thanks."

Re:Follow up Headline

[Curate]

They were just eggs. But you ate them anyway.

Re:Follow up Headline

[fnj]

And who would be doing the arresting?

Re:Follow up Headline

[cheekyjohnson]

Most of those comments disgust me. Well, it is Youtube...

Re:Follow up Headline

[TheGeneration]

Might I recommend the book "Stasiland" about the East German secret police, spying on it's own citizens, which due to their spying were able to prevent any politician from countering them because of the black mail material they had on every person (including the politicians and their families.)

But 60 Minutes said it was fine!!

[TWiTfan]

And also that Edward Snowden was a cheater!

Re:But 60 Minutes said it was fine!!

[ackthpt]

And also that Edward Snowden was a cheater!

"National Security" forgives a lot of sins.

Re:But 60 Minutes said it was fine!!

[Anonymous Coward]

You are a paranoid conspiracy theorist.
US intelligence agencies don't have industrial espionage programs.

Re:But 60 Minutes said it was fine!!

[Zontar The Mindless]

US intelligence agencies don't have industrial espionage programs.

Sez who?

Re:But 60 Minutes said it was fine!!

[WillAffleckUW]

This is so funny - we've had them since at least the 80s.

The fact that you think we don't have industrial espionage programs is amusing.

Re:But 60 Minutes said it was fine!!

[Em Adespoton]

Yeah, the part that I thought was particularly distasteful was spying on Airbus and giving all the secrets to Boeng.

I think that was to do with this: http://en.wikipedia.org/wiki/Airbus_affair

Re:But 60 Minutes said it was fine!!

[Zontar The Mindless]

Hi. Either you completely misunderstood my comment, or you replied to the wrong one.

P.S. "Sez who?" is what we used to say back in the Dark Ages, before Jimmy gifted us with [citation needed].

It's Bush's fault!

[Bodhammer]

Oh wait, he appointed Leon... Now I don't know who to hate, maybe it will just have to be the whole government!

Re:It's Bush's fault!

[pregister]

Hop on! The bandwagon is great this time of year.

Re:It's Bush's fault!

[Desler]

Ah, yes, the retarded partisan that has to defend his own side at all costs. And people wonder why this country is going down the shitter.

from TFA..

[Anonymous Coward]

"But in his a 68-page, heavily footnoted opinion, Leon concluded that the government didn't cite a single instance in which the program 'actually stopped an imminent terrorist attack.'"'

Who wants to bet there'd be a false flag coming soon, that the gov't miraculously stops via this very program? Hrmmmm...

Re:from TFA..

[Bite The Pillow]

Even if it happened tomorrow, the suit is about what happened before the opinion, and the lack of instances before the opinion.
It would be irrelevant, and far too obvious. Plus, a single instance would be argued as dumb luck, given the number of discovered and foiled attempts in that time.
Did anyone really think about this before moderating up?

Here is a reaction by Snowden upon this ruling

[vikingpower]

In a New York Times article, Snowden reacts, stating:

"“I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”"

Re:Here is a reaction by Snowden upon this ruling

[MightyMartian]

Chin up, Mr. Snowden. The government of the US may believe you're a traitor, but the time will come when you're seen as one of the heroes and guardians of liberty.

Re:Here is a reaction by Snowden upon this ruling

[Sique]

[Citation needed]

Or: you are a liar.

Re:Here is a reaction by Snowden upon this ruling

[houghi]

I hope that when he gets back to the USofA it will be not by a pardon or by giving him amnesty, but because he is welcomed as a hero.

Re:Here is a reaction by Snowden upon this ruling

[fnj]

Just what are these alleged "secrets" you claim he gave them?

Re:Here is a reaction by Snowden upon this ruling

[VortexCortex]

Victoria's.

Re:Here is a reaction by Snowden upon this ruling

[cold fjord]

Not that I will necessarily agree with the AC, but you wouldn't deny that the Russians, Chinese, Iranians, Cubans, al Qaida, and others, have access to the same Top Secret American, British, Australian, and Canadian documents leaked by Snowden that have found their way either into print or onto the web, would you? So that means that they assuredly have at least some of those Top Secret documents. That is before we get to the question of the already many and growing number of businesses (many newspapers, web sites, etc.) that have those documents, and the question of have been able to provide adequate security to prevent them from falling into the hand of nation states with sophisticated intelligence agencies that don't have to follow the niceties of American or British law such as Russian or Chinese agents operating overseas. Maybe you've heard, but Russian agents have assassinated people in the UK before. A little breaking and entering or other more subtle intelligence gathering would be inconsequential to them. And that is probably all it would take for them to get the complete trove of documents. That is assuming that they would even have to do that, that they don't have moles in those papers now. I'm pretty sure that newspapers and TV stations don't conduct 10-20 year background checks of their employees similar to those for Top Secret clearances (even if they are sometimes "imperfectly" done as they were in Snowden's case).

Experts Doubt Snowden Could Keep His Leaked Documents Safe From Spies

There is reason to doubt Edward Snowden’s claim that Russian or Chinese spies have not seen the NSA files he leaked.
.
In an interview with the New York Times published yesterday, document-leaking NSA contractor Edward Snowden made a bold claim in response to allegations that other nations may have got hold of his classified haul:

“There’s a zero percent chance the Russians or Chinese have received any documents.”

Many security and surveillance experts publicly questioned that claim. Google security engineer Justin Schuh tweeted that the remark showed “Snowden is divorced from reality,”

Now we can also add to that the fact that the UK government assesses the secrets that Snowden stole to have fallen into the hands of foreign intelligence agencies. I seem to recall that NSA, or at least some of its leaders, have a similar assessment.

Snowden leaks 'worst ever loss to British intelligence'

Sir David, the former head of the UK's communications surveillance centre GCHQ, told the Times: "You have to distinguish between the original whistleblowing intent to get a debate going, which is a responsible thing to do, and the stealing of 58,000 top-secret British security documents and who knows how many American documents, which is seriously, seriously damaging.

"The assumption the experts are working on is that all that information or almost all of it will now be in the hands of Moscow and Beijing.

"It's the most catastrophic loss to British intelligence ever, much worse than Burgess and Maclean."

You can also see the Russian response.

Snowden Inspires Russia to Boost Internet Spying

Less than three months after granting asylum to National Security Agency leaker Edward Snowden, Russia is preparing to implement the kind of electronic surveillance that Snowden uncovered in the U.S.

And you must admit that Snowden is in contact with FSB officials. (The FSB was formerly the KGB.)

It's Now Clear That

Re:Here is a reaction by Snowden upon this ruling

[Uberbah]

Well, that's all I have for now.

Oh, I'm sure you can come back with more baseless FUD, propaganda, and tautologies, just as soon as you get the next set of talking points.

Re:Here is a reaction by Snowden upon this ruling

[cold fjord]

That's funny, I don't see you making an argument or presenting any facts. I take it you're all out for the moment? Then why post? You don't seem to be doing anything useful.

Re:Career suicide

[Anonymous Coward]

Life tenure

http://en.wikipedia.org/wiki/United_States_federal_judge#Tenure_and_salary

You've got it wrong.

[Anonymous Coward]

About fucking time. It is time to enforce the fourth amendment.

It isn't that the 4th Amendment isn't being enforced, but rather that there are conflicting ideas about how the 4th Amendment applies. I'm sure you think you know, but is yet to be seen how the courts will decide. It isn't 1789 anymore, and the 4th Amendment has been applied to a lot of situations and there is a lot of legal history (precedent) as to how it applies. It is entirely possible, maybe even likely that they will win at the trial court and lose on appeal. Only time will tell.

The fact that there are now courts in two different jurisdictions in conflict could make review by the Supreme Court more likely if the result doesn't change on appeal. It is way too early to pop champagne yet, there is still a long road ahead before this is truly decided.

Re:You've got it wrong.

[Todd Palin]

Here is the text of the fourth amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It is totally obvious that "papers, and effects" would include digital documents such as phone calls, texts, and any computer file. The category was written broadly enough two hundred years ago to include today's digital "papers, and effects".

There really isn't much grey area here.

Like they give a shit.

[csumpi]

They do what they want. Need court order? No problem, they just set up a secret court, that spits out authorizations, in secret, when they want it, they can even back date it.

Oh, this shit is all illegal? No worries, nobody will go to jail. They'll just say it was to catch them pedophiles.

January 2, 2014 News Bulliten

[Anonymous Coward]

U.S. District Court Judge Richard Leon has been discovered with child pornography, cocaine, Al Qaeda literature, plans to bomb Congress and Justin Beiber albums.

When asked he said the albums were for his grand-daughter. Everything else was a plant by the Government.

Fox News reported that this Liberal Activist Judge is the norm for Democratic Presidential nominations and his guilt is obvious.

Sean Hannity states, "This is where Obama has pushed us."

Rush says, "What! What do you expect from a Democrat!"

Stewart makes some jokes...

Colbert makes some jokes...

Mahr makes some jokes...

The Internet talks out of their collective asses ....

And we make one more step towards World wide totalitarianism.

It's gonna happen. Just when I get hope of the future more shit happens that shows the dystopian future of scifi authors is coming true.

Re:January 2, 2014 News Bulliten

[achbed]

U.S. District Court Judge Richard Leon was killed in a fiery car wreck early this morning. After the flames we extinguished, the car was discovered to have a special hidden compartment that contained child pornography, cocaine, Al Qaeda literature, plans to bomb Congress and Justin Beiber albums.

When asked, his wife said "no comment".

Fox News reported that this Liberal Activist Judge is the norm for Democratic Presidential nominations and his guilt is obvious.

Sean Hannity states, "This is where Obama has pushed us."

Rush says, "What! What do you expect from a Democrat!"

Stewart makes some jokes...

Colbert makes some jokes...

Mahr makes some jokes...

The Internet talks out of their collective asses ....

And we make one more step towards World wide totalitarianism.

It's gonna happen. Just when I get hope of the future more shit happens that shows the dystopian future of scifi authors is coming true.

FTFY

Judge says Snowden guiltless patriot

[WOOFYGOOFY]

What's the difference? There is no difference. Someone revealed that crimes were being committed by the government. At great personal and professional cost. That person is a hero. This is as stupid simple as morality gets.

Hope?

[the eric conspiracy]

Maybe there is hope for the Yangs and the E Pleb Neesta yet.

Just metadata could catch the Founding Fathers

[Impy the Impiuos Imp]

See, if they had just done it with proper warrants, even if just thru the secret FISA court, it would be fine. Now they're gonna get their ass rammed by constiutional challenge..

And deservedly so.

Re:Just metadata could catch the Founding Fathers

[WillAffleckUW]

Have to agree.

I have no problem with the government using a specific court order on a small group of people.

I do have a problem with the government quartering troops in my cell phone, however.

hmmmm.

[jafac]

I reckon it's about time for another "crisis" to remind us all why we need to keep the NSA apprised of all of our private activity. For our own safety, of course.

Re:hmmmm.

[TubeSteak]

Judge Leon also emphasized that he was unpersuaded by the governmentâ(TM)s claims that the program served the public interest, pointedly noting that it failed to cite âoea single instance in which analysis of the N.S.A.'s bulk metadata collection actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive.â

Says the Judge appointed in 2002 by President George W. Bush
The NSA has had years to document even 1 "crisis" and it hasn't seemed to materialize yet.

Now just hold on there

[Lucas123]

So you're telling me a secret program authorized by a secret court to ubiquitously collect private information about U.S. citizens was, when exposed to the light of day, found to violate Americans’ constitutional rights?

The hell you say.

A clean judge?

[Anonymous Coward]

I guess that judge didn't have any skeletons in his digital closet against which the NSA could apply "leverage."

Arbitrary?

[bogidu]

You mean like DUI checkpoints?

Re:Arbitrary?

[DaveAtFraud]

You mean like DUI checkpoints?

Driving is not a constitutionally protected right. Most states issue drivers licenses as granting the driver the privilege of being allowed to drive on public (i.e., government built and owned) roads. If you don't like the terms, you are free to not accept them but then you also may not use the state's roads.

DUI checkpoints have only been ruled unconstitutional when it was shown that cars being stopped were driven by members of identifiable ethnic groups. The stop itself was not unconstitutional but the uneven application of who got stopped violated "equal protection under the law."

Cheers,
Dave

Re:Arbitrary?

[WillAffleckUW]

You mean like DUI checkpoints?

DUI checkpoints are illegal in my state (Washington State).

Freedom - it's what's for breakfast, lunch, and dinner.

Re:Arbitrary?

[Anonymous Coward]

"If you don't like the terms, you are free to not accept them but then you also may not use the state's roads."

Drink the Kool-Aid much? The "state's roads" are part of the commons. They belong to everyone. The illusion that the state has to somehow grant me the privilege of being on public property is an outrageous fabrication. (Hint: Where is the public land where it's not a "privilege" to be there, in your estimation? Oh right, there isn't any...)

Re:Arbitrary?

[bogidu]

I don't think I mentioned anything about the current legality of DUI checkpoints, merely that they are an arbitrary investigative tool used by the police. They impede my right to travel to search me for violations. Regardless of whether or not the constitutionality of tactic has been upheld, sure seems to run a grey line with me.

Re:Arbitrary?

[TapeCutter]

A drunk at the wheel is just as deadly as a Jihadist in a cockpit, however there is no question that DUI checkpoints do save lives. My Aussie home state of Victoria was one of the first in the world to introduce them in the 1980's, combined with ubiquitous speed/red light cameras the effect on the yearly road toll since booze busses started randomly testing drivers has been dramatic, from ~600 in the 80's down to ~250 today, while at the same time there are over twice as many cars on Victorian roads. The success of the 'TAC' program (re: youtube for 20yr long ad campaign) has changed social attitudes firmly against DUI, like myself most people here are in favour of getting drunks off the road in exchange for the minor inconvenience of being randomly tested every now and then.

Public roads are basically public transport infrastructure for private vehicles. Driving on public roads is not an individualist pursuit, nor do you have any "inalienable right" to do so without the express permission of a license. The license is proof to everyone else sharing the road that your knowledge of the rules has been tested. You either cooperate with others by following those simple rules. If not you are removed from the driving population via arrest, or they wash your remains into the gutter with a fire hose..

Re:Arbitrary?

[Hatta]

Driving is not a constitutionally protected right.

Sophistry. Freedom of movement is a constitutionally protected right. Saying that freedom of movement doesn't apply when you use a car is like saying that freedom of speech doesn't apply when you use a computer.

If you don't like the terms, you are free to not accept them but then you also may not use the state's roads.

Forcing someone to abandon their 4th amendment rights to use a car makes about as much sense as forcing someone to abandon their 4th amendment rights in order to use the mail. After all, isn't mail a privilege too?

Re:Arbitrary?

[perpenso]

Driving is not a constitutionally protected right.

Sophistry. Freedom of movement is a constitutionally protected right.

Freedom of movement does not mean that you get to **operate** the machine. Someone else can operate it for you or you can take a cab, bus, train, boat, etc. Your movement is not restricted, only your ability to operate the machine.

Re:Arbitrary?

[DaveAtFraud]

"If you don't like the terms, you are free to not accept them but then you also may not use the state's roads."

Drink the Kool-Aid much? The "state's roads" are part of the commons. They belong to everyone. The illusion that the state has to somehow grant me the privilege of being on public property is an outrageous fabrication. (Hint: Where is the public land where it's not a "privilege" to be there, in your estimation? Oh right, there isn't any...)

So, why don't you go out in the street and dg up "your" part? Ditto for "public lands" like BLM land, National Forrests, National Parks, National Monuments, the cpital, the White House, etc. Just walk right into the White House and say you want to stay in "your" part. Better yet, try it with a nuclear sub or an aircraft carrier.

The answer is that it is commonly accepted that government, on whatever level, "owns" and thus controls these properties. You can protest all you want that you are just taking "your" piece of whatever public property but the cop and the judge and your jailor won't care. I don't agree with governemnt controling the roads, buildings, etc. but I won't try any of the above.

So, go take a big hit of your hard core, libertarian Kool-Aid and then knock yourself out seizing back your property from the government. I'll quietly work at convincing people that the government shouldn't be in the business of running all of these properties. If you're lucky, you'll at least have the satisfaction of serving your time in a privately run prison.

Cheers,
Dave

Re:Arbitrary?

[the eric conspiracy]

They are not restricting your right to be on the roads. They are restricting your right to operate dangerous machinery on the roads as a matter of public safety.

There are many well known limits to rights arising from similar issues. It's really idiotic to think an absolute right to exercise one of these rights exists.

One common example is that Freedom of Religion does not permit you to engage in ritual human sacrifice.

Re:Arbitrary?

[http]

Driving down a particular road at a particular time does not constitute probable cause.

Go home and get some sleep. Come back when you''re ready to play.

Re:Arbitrary?

[cheekyjohnson]

Driving is not a constitutionally protected right.

Disgusting. The fact that driving is technically not a constitutionally protected right (though the constitution isn't a blacklist of things the government can't do, you know) doesn't mean they can harass you to check your innocence. That is unconstitutional.

If you don't like the terms, you are free to not accept them but then you also may not use the state's roads.

Just like if you don't want to get molested by the TSA, you shouldn't go to airports. Just like if you don't want to be stripped of all your rights, you shouldn't live in a certain city. After all, you can simply choose not to do those things. This logic can be applied to any activity that supposedly isn't a constitutionally protected right. I do not believe the government has the authority to have you sign away your rights in order to do something perfectly legal.

Your reasoning leads to tyranny, and provably so. I'll have none of it.

Re:Arbitrary?

[cheekyjohnson]

however there is no question that DUI checkpoints do save lives.

In the land of the free and the home of the brave, this is irrelevant. Even if the TSA saved lives, I would still be 100% opposed to them.

Driving on public roads is not an individualist pursuit, nor do you have any "inalienable right" to do so without the express permission of a license.

Nor does the government have any constitutional power to search you without probable cause. Stopping people to check their innocence is not at all something I'd expect from a country that's supposed to be the land of the free and the home of the brave.

The license is proof to everyone else sharing the road that your knowledge of the rules has been tested.

If they were merely going after people they knew or had good reason to believe were breaking the law, I'd have little problem with it. What I have a problem with is harassing innocent people to check their innocence. The two things are very, very different.

Re:Arbitrary?

[cheekyjohnson]

Or forcing someone to abandon their 4th amendment rights to get on an airplane, or live near the border. This reasoning leads to all sorts of lovely, lovely tyranny.

Re:Arbitrary?

[NoImNotNineVolt]

One common example is that Freedom of Religion does not permit you to engage in ritual human sacrifice.

Indeed, even Rastafarians are not permitted to smoke pot. Freedom of Religion my ass.

The flaw with the business dealings argument.

[Egdiroh]

All of the times when cases like this have gone the other way, the precedent cited was one about business dealings, which being voluntary, void your sole oversight over the details of those dealings.

The problem with that argument as it pertains to cell phones, is that the government maintains a monopoly on the airwaves which it licenses out to cell providers. It would be like the government licensing out all roads to be toll roads and then getting to track your movements because they were part of a business dealing.

Re:The flaw with the business dealings argument.

[Em Adespoton]

The problem with that argument as it pertains to cell phones, is that the government maintains a monopoly on the airwaves which it licenses out to cell providers. It would be like the government licensing out all roads to be toll roads and then getting to track your movements because they were part of a business dealing.

I do wish you hadn't pointed this out...

So much for "free" roads.

Applies to call content only ?

[perpenso]

I expect that the Court will only prohibit warrantless access to the phone call's content, the conversation. The the two phone numbers, a timestamp and a duration will probably still be accessible without a warrant.

Re:Applies to call content only ?

[ewieling]

You are talking about a pen register.

"Smith v. Maryland, 442 U.S. 735 (1979), was a case in which the Supreme Court of the United States held that the installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required." --Wikipedia

This is what I think the NSA is referring to when they talk about "meta-data" with regards to cell phone tracking.

Re:Applies to call content only ?

[achbed]

You are talking about a pen register. "Smith v. Maryland, 442 U.S. 735 (1979), was a case in which the Supreme Court of the United States held that the installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required." --Wikipedia This is what I think the NSA is referring to when they talk about "meta-data" with regards to cell phone tracking.

The judge attacked the application of that case directly. Smith v Maryland dealt with a few days of calls from one number, with no past history. Not the explicit collection of the entire country's phone records from all providers, and maintaining a daily-updated database of at least 5 years worth of history with instant query capability across the entire time span. Smith was a very limited operation, the NSA's data collectino is by its very construction immense in scope with no justification except "BOO TERROR".

"Court" refers to US Supreme Court

[perpenso]

To be clear, "the Court" is referring to the US Supreme Court. I believe they have authorized "metadata" in the past, addresses on envelopes.

Re:"Court" refers to US Supreme Court

[perpenso]

Metadata on cell phones includes a lot more than that.

Agreed. However I expect that they will only be allowed to collect/retain/analyze the two numbers, start time and duration without a warrant. Metadata is not an all or nothing thing.

What is the Limit

[mugnyte]

If not this phase of technology used for National Security, there will be some other. In any case, what level of technology use by the government is safe or allowed? I suspect this issue/case is just one of a myriad of ongoing decisions to balance the use of technology for crime/safety while letting everyone (at least) feel like their privacy is respected.

[it doesn't take much to envision a stability to just-appearing technology so that they become applicable in many potentially intrusive ways...drones hovering above public places using instant facial recognition to identify any person-of-interest, without need to publish why interest arose...infra-red cameras on streetlights to track who is in each home and when...ubiquitous vehicle-tracking, engine-disabling technology to capture any suspect in a vehicle...100% person-presence tracking]

The technology is going to be everywhere, and it's understanding by the general populace is shrinking. The technocrats will provide the tools for the aristocrats and both will try to balance between appeasement and revolution by the rest of society. Choosing to avoid technology now will only handicap you. Some as-yet-unknown sci-fi authors will be heralded as prophets.

Re:What is the Limit

[the eric conspiracy]

The internets are pretty new. It is an unhappy event to be reminded as to how venial people in position of power in government can be.

Hopefully there will be some careful thought by people in office channeling The Founders that will restore balance.

If not well maybe a new political party has to be established.

Re:Career suicide

[Desler]

Which doesn't mean what you think it does. Congress can remove justices. It's their Constitutional authority. Did you not bother to read either the second or third sentences of that section?

Re:I say

[mugnyte]

Because not knowing that everything you do is traced is safer than knowing? He broke the law because the US government is lying to its citizens. Is the government completely immune to breaking the law? Should Watergate have only been about two rogue reporters?

Of course they do.

[mosb1000]

US intelligence agencies don't have industrial espionage programs.

Of course they do, industrial espionage is within their original scope of operations so they've been doing it all along.

Re:Of course they do.

[cbiltcliffe]

The page mentions industrial espionage conducted by the NSA back as far as the Cold War; that section specifically, no, it doesn't.
I'd guess it was a "post the URL after I've already clicked some links" error, which is somewhat easy to do on Wikipedia.

Re:Career suicide

[ganjadude]

thats why I keep all my porn on 5.25 disks, no one can get my data off those!!!

Full Text

[SrLnclt]

Read the judge's full ruling.

Re:Full Text

[achbed]

Read the judge's full ruling.

Where the hell do you think you are? Wikipedia? No references here!

Re:Full Text

[Beezlebub33]

Amusing that it is posted on the Guardian.

Re:Career suicide

[fnj]

Question: can you name the last time Congress impeached and removed a Supreme Court Justice? I'll make it easy for you. You'll have to go back to 1805, when there were still Congressmen with principles and balls.

Re:Career suicide

[WillAffleckUW]

I use 8 inch CP/M disks like my IBM masters told me too - and I like it!

have to remember to insert them upside down, mind you.

Listen to history

[Impy the Impiuos Imp]

From TFCD: "Indeed, I have little doubt that the author of our Constiution, James Madison, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast."

The next time someone, seeking to expand the government's power, uses the meme "those founding fathers' ideas don't apply to our modern times", keep the above in mind. Their theories predict all this assholery with stunning accuracy. And that is due to studying history as hundreds of governments play out over thousands of years. Even the belief pure democracy won't fall prey to this is 100% contraindicated based on long-term history.

Re:Listen to history

[the eric conspiracy]

Their theories predict all this assholery with stunning accuracy.

This is why that time is called the Enlightenment.

Another one is sorely needed.

Re:Listen to history

[Impy the Impiuos Imp]

By the way, some of these historical democracies that failed -- pre-WWII Germany and various in ancient Greece, why did they fail? Granting "temporary" emergency powers for existential crises.

Learn
God
Damn
You
All,
Learn!

Wow, a fouding father quote from a judge

[1000101]

FTA:

"Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware 'the abridgement of freedom of the people by gradual and silent encroachments by those in power,' would be aghast."

Finally. A judge actually considering the intent of the founding fathers. This is too rare these days.

Re:Wow, a fouding father quote from a judge

[achbed]

And a Beatles reference. I'm going to start calling random collections of junk facts a "Ringo database".

The other problem...

[Anonymous Coward]

Even if every politician saw things the way you and I do, and the NSA were completely defunded tomorrow, we would still have a huge problem. The NSA is made up of smart, highly-connected people who, as we now know, have very little concern for law or justice. The NSA needs to be dismantled as slowly and carefully as it was built, or it'll just turn into a mafia like the KGB did.

don't forget about the NSAs other spy stuff...

[strstr]

http://www.oregonstatehospital.net/d/russelltice-nsarnmebl.html

Spy satellites and remote sensing technology abound, if no one checks this out then nobody will discover their back up systems that are actually much more invasive, and work better any way.

Re:don't forget about the NSAs other spy stuff...

[strstr]

Think of the autoplay video as like providing background commentary, like a TV off in the other room... I might disable it, or make it only autoplay once like another file on my website eventually, though.

Quit apologizing for the goddamn president !

[Taco Cowboy]

Quit blaming the presidents when congress is fully invested in the law

Just because someone handed you a gun do you really have to use that gun ?

Just because the congress handed the president a law does that mean the president MUST use it ?

And furthermore - the Patriot Act itself is NOT a violation of the Constitution - it's the ACTION of the NSA, the one which INVADED THE PRIVACY OF THE AMERICAN CITIZENS - which has constituted BLATANT VIOLATION OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA !!!

The congress was full of shit, yes, but that asshole living in the white house is also full of shit !

Re:Quit apologizing for the goddamn president !

[icebike]

The congress was full of shit, yes, but that asshole(s) living in the white house is also full of shit !

So are the Assholes wearing black robes, and acting all pious and infallible.

We need a constitutional amendment that instructs the judiciary that their first and foremost task is to enforce the constitution, and the death penalty for violating that obligation doesn't seem unwarranted if you ask me. After all, even ONE judge agreeing to serve on a SECRET COURT empowers a whole bunch of others to do likewise, to the (potentially fatal) detriment of the country.

Its long past time to roll back any laws that allow such shenanigans, and perhaps impose some laws against re-introducing legislation to reestablish such measures. Laws with teeth. If the country can't survive without 24/7 surveillance by government, then its not worth saving.

Re:Quit apologizing for the goddamn president !

[oreiasecaman]

Homer: What he said is true because its in all caps. Are you gonna argue with caps?
Marge: Why does that make it right?
Homer: He took the time to press the shift key, Marge. I think he knows what he's talking about.

https://gs1.wac.edgecastcdn.net/8019B6/data.tumblr.com/tumblr_m95lh53cA31r5j6uso1_r1_1280.jpg

I thought this was fixed ...

[PPH]

... by the 1996 Telecom Act. Telephone metadata was changed from being the property of the caller* to that of the telecom. And that has subsequently been tested in courts, with decisions reaffirming the ownership of metadata by Ma Bell and her vile progeny.

*With a statement in phone service tariffs of the need to access this data solely for billing purposes.

Re:I thought this was fixed ...

[Areyoukiddingme]

Ma Bell is only one acquisition away from being fully reconstituted. You may not have to include the "vile progeny" part much longer.

I'm sure that'll stop them

[mark-t]

Since when does something being unconstitutional stop such agencies from doing whatever the heck they want in the 21st century?

Re:I'm sure that'll stop them

[the eric conspiracy]

Enforcement of Supreme Court decisions is a problem far older than the 21st century. Generally it only works because of respect for the institutions of the Constitution.

For example, the Supreme Court ruled against the removal of the Cherokee from their native lands in 1831. President Andrew Jackson disagreed. He proceeded with the removal of the Cherokee, and the Supreme Court was powerless to enforce its decision.

Bravo, but what's with this "likely" nonsense?

[dottrap]

What's with this "likely" adjective crap? Did the judge actual use that adjective or did the media add that word? (I did RTFA.) The article quotes are forceful.

So what's with this with "likely" BS? Nobody ever says breaking into somebody's home without permission and stealing stuff is "likely illegal". What's with the double standard?

NSA responds

[symbolset]

You thought that was bad? We shouldn't have admitted that? Totally didn't see that coming. Ok, making a list now... was there anything else you wanted to not know about?

Cat got your tongue?

[rmdingler]

It is 'likely unconstitutional' to the same degree that burning at the stake is "likely unpleasant".

Re:Cat got your tongue?

[the eric conspiracy]

That would be my position.

Re:I say

[cbiltcliffe]

Errr.x What?.x?

NSA version of Likely

[hackus]

Falling 10,000ft is likely to kill you.

Putting a gun to your head and pulling the trigger with a live cartridge in the firing stock is likely to kill you.

Detonating a Nuclear bomb while you straddle it is likely to kill you.

Seriously, right out of Dr. Strangelove: http://www.youtube.com/watch?v=bzD-zGIJkbY

-Hack

Show of hands

[tpstigers]

Spying is bad.

Now lets see a show of hands of everybody who has never, EVER, looked at another person's browser history.

Re:Show of hands

[TheGratefulNet]

that's one set of people.

now, a show of hands how many have looked at 10 others' history? how about 100? 1000? a few million? more than a few million?

and if you have looked at that many, do you have the storage and cpu to cross correlate and analyse all that data?

show of hands. how many is that? and how many letters in their agency name?

Re:Show of hands

[cheekyjohnson]

Do you have a point?

Equality

[flyingfsck]

The NSA and CIA always spied on all non-Americans, so all it amounts to now, is equal treatment for everybody.

Re:carp diem

[flyingfsck]

Yup, it is mainly a backup service and they get to charge you for it too, both in your taxes and in your phone bills.

unfortunately

[Anonymous Coward]

the plaintiff in this case is not the crackpot we want fighting this with the potential to create precedence in favor of current government activities.

In next week's news

[Iamthecheese]

December 24, 2013 U.S. District Court Judge Richard Leon was found dead yesterday in a severe car accident. The 54 year old highly regarded judge was under a lot of stress and drinking was reportedly involved. Mourning on this Christmas Eve are his late wife and child.

Writing expresses thought. Video dulls the mind.

[fyngyrz]

I think of an autoplay video as direct evidence that someone is an incompetent writer, and I leave immediately. If you can cannot express your thoughts in a quotable, orderly context, you are very likely not worth my time.

Video is information pablum. When you're talking to the intelligent, the written word is the way to go. Only use video when nothing but a moving image can serve (tip: rarely, if ever, is this the case); only use still images when words will not serve. Yes, an image is worth a thousand words: The problem is, they're not your words, they are the viewer's words.

I cannot emphasize enough how writing encourages discourse and thought, while video rarely does anything of the sort.

Reasonable re the 4th

[fyngyrz]

So the Constitution states that it is not the use of collected personal information, but "unreasonable" collection and searches for information that is disallowed. The issue then swings on what could be considered reasonable.

The precise definition of what is reasonable is right there in the 4th amendment: It is probable cause, supported by oath or affirmation, formally blessed as acceptable by the issuance of a warrant which describes the places to be searched, things to be seized. Once the government meets that standard of reasonableness, they may then commence to search.

It does not seem to me that collecting all telephone metadata from everyone is a narrow enough criteria to be considered reasonable.

You don't get to say what is reasonable; the 4th already does that. Is the target here a person's papers? Their home? Their property (effects)? The actual person themselves? If so, then if the standard of reasonableness explicitly laid out in the 4th is met, the government may search; otherwise, not.

The question here turns entirely on who has the ownership of that data, and what the obligations are with regard to it. Does the metadata on my calls meet the definition of being part of my papers? I think it's pretty obvious that it does, but that's just one person's opinion. If that data contains my private information, then the 4th applies. If, however, the data is not in any way "my" data/papers, then the question moves on as to the government's rights with regard to coercing data from the clutches of corporations.

Before anyone leaps to the conclusion that having done business, for instance, with the phone company or an Internet provider somehow magically makes that data public, let me point out that a letter between you and I, or you and your bank, is very definitely part of your papers. If you think the phone company being a party to your data makes your papers public, please explain why that obtains, but the letter you wrote to you bank is still in the domain of your private papers.

You're defending the indefensible.

[Uberbah]

It isn't that the 4th Amendment isn't being enforced, but rather that there are conflicting ideas about how the 4th Amendment applies.

Bullshit. The Bush Administration claimed that water boarding wasn't torture. Do you need to see a court case to see that they were lying, or can you do that by yourself since you have a semi-functioning cerebral cortex? How about if tomorrow the military demands you let them bunk some soliders at your place. Would you need to see a court ruling that "homes" includes "apartments, condos and timeshares", or could you figure that one out for yourself?

The Fourth Amendment leaves zero wiggle room as both the person and place have to be named in warrants.

It is entirely possible, maybe even likely that they will win at the trial court and lose on appeal. Only time will tell.

Again, bullshit. The 4th Amendment is crystal clear on this:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Re:I say

[Uberbah]

What if someone overheard the conversation you had at a restaurant last week?

What if you tried coming up with a relevant analogy? The person overhearing you

1) Isn't recording your conversation
2) Even if he is, it's not going in a massive cross-referenced database
3) And isn't tapping your phones and email in addition to eavesdropping
4) Doesn't have the power to arrest you or sic a trigger-happy SWAT team on your ass

Re:Sorry but you are dead wrong

[v1]

The US Constitution does not give the US President any authority to declare war. That is specifically a reserved power for the Congress.

that didn't do much to stop the vietnam war or the gulf war.