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

[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

[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

[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

[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

[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

[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

[roccomaglio]

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

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

[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.

NSA Press Release

[mythosaz]

"That's nice."

-NSA Press Secretary

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?"

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.”"

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: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: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

Full Text

[SrLnclt]

Read the judge's full ruling.