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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[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

[Anonymous Coward]

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

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

[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

[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

[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

[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

[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

[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.

NSA Press Release

[mythosaz]

"That's nice."

-NSA Press Secretary

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

[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

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

[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?"

But 60 Minutes said it was fine!!

[TWiTfan]

And also that Edward Snowden was a cheater!

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...

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.

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.

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.

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.

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.

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.

"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.

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: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: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?

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...)

Full Text

[SrLnclt]

Read the judge's full ruling.

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: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".

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.

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 !

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: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.

Cat got your tongue?

[rmdingler]

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

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.

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.