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First US Appeals Court Hears Arguments To Shut Down NSA Database
An anonymous reader writes: The second of two lawsuits filed against the U.S. government regarding domestic mass surveillance, ACLU vs. Clapper, was heard on Tuesday by "a three-judge panel on the U.S. Court of Appeals for the 2nd Circuit." The proceeding took an unprecedented two hours (the norm is about 30 minutes), and C-SPAN was allowed to record the whole thing and make the footage available online (video). ACLU's lawyers argued that mass surveillance without warrants violates the 4th Amendment, while lawyers for the federal government argued that provisions within the Patriot Act that legalize mass surveillance without warrants have already been carefully considered and approved by all three branches of government. The judges have yet to issue their ruling.
with the judges participating.
It was an interesting 2 hours of argument.
There appear to be two main, independent issues.
1) Is the current interpretation of the law what Congress intended?
G: They reupped it twice after being told to go read the secret report telling how it was being used.
P: Not that many folks actually knew what was happening. If they did not explicitly say yes, then the default is no.
J: If we rule against this use, then the Congress can then explicitly say if this is what they meant.
This will require a public vote with the issues widely known to the public.
The judges doing this immediately should be tempered with the needs of keeping out the bad guys.
2) Is the bulk collection a reasonable search under the 4th amendment?
G: Yes, it follows from Smith which is the 3rd party pen register precedent with no expectation of privacy.
P: No, this is an extreme extension of Smith. We expect our privacy and we want it back. (My words)
J: If this is a reasonable collection, there doesn't appear to be any end to what can be collected under this 3rd party logic.
The govt said that if nothing is done, the act is up for another reup in 2015.
Everybody agreed that there were other means possible with the phone companies holding the data.
This might not be as expedient but sounded like it would probably work.
It would lower the concern of no audit trail for a rouge, internal govt search of the data set.
It will be interesting to see how the judges rule.
It seems to me that if there is another way, it is unnecessary to put this much secret power in one place.
Which would make it an unreasonable search.
My sense was that the govt representative was resigned to this possible outcome.
It would be interesting to see if others watching the tape get the same sense.
If this is how things work out, it seems a use of the old negotiating technique of
ask for something really nuts so you can get something less nuts.