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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.
Our entire government seems to think the constitution can be superseded by any other law whatsoever, as if the constitution being the highest law of the land doesn't actually overrule anything that contradicts it. It's as if the constitution is completely meaningless.
Sigh.
In other news... The provisions within the Patriot Act were carefully considered before approval and not just a power grab as we suspected.
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
Two of which are irrelevant for deciding constitutionally.
And if a higher court has already agreed that what they are using the Patriot Act to justify is constitutional, they need merely cite the case. Otherwise they're just trying to blow smoke up the judges' asses. Or arguing that Appeals Courts' opinions don't matter.
(I wouldn't think either was a good strategy for an argument in an Appeals Court, but maybe they think Appeals Courts' judges are stupid.)
Sheesh, evil *and* a jerk. -- Jade
The ruling will provide a key insight into the judicial landscape on mass surveillance. So far both the legislative and executive branches have been in a race to suck each other off with massive expansions of surveillance programs: in spite of all the "gridlock" in Washington, their seems to be little argument regarding this particular issue. And the judicial branch has for the most part remained sidelines, refusing to weigh in. But if ever the phrase "silence implies consent" rang true, it's here.
Based on this ruling we should be able to surmise if this whole system of checks and balances kinda sorta works, or is basically a farce. My guess is that they'll come up with some bullshit about such programs being vital for national security and that it's not a constitutional issue, and the farce will be complete.
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 rubber stamps already rubber-stamped it. Know your place, citizen."
~repost~
And over time the men of Dale had become complacent on privacy, liberty and freedom of association, and yet they prospered. No longer content with the wealth of accumulation, they valued innovation and the free exchange of information. To this end they did help to build the greatest communications network that had ever been. Through it all their wealth flowed like a river --- real wealth --- not the dusty treasure hordes of kings locked in windowless rooms.
The fortune and fate of Dale is bound with that of the dwarves, for it is they who had built it. "Long ago in my grandfather Thror's time our family was driven out of the far North, and came back with all their wealth and their tools to this Mountain on the map." They were especially skilled in working gold, copper and silver into thin filaments which they strung far across the land. Where ever dwarves settled dial tone was sure to follow. But their skill was even greater with jewels and crystals, from which they built magical devices of geranium and silicon to carry voices and information in the aether. Altogether those were good days for us, and the poorest of us had money to spend and to lend, and leisure to make beautiful things just for the. fun of it, not to speak of the most marvelous and magical toys [...] and the toy-market of Dale was the wonder of the North."
But of all the wonders of that age the most precious was perhaps the least visible, hidden deep under the Mountain itself. "Discovered by my far ancestor, Thrain the Old, now they mined and they tunneled and they made huger halls and greater workshops." The Mountain they had built is actually many mountains and there is one in your own city. I refer to the telecommunications exchange points of Tier 1 and Tier 2 networks such as MAE-EAST and MAE-WEST, where rivers of voice and data converge into brilliant points of light, then spread out again.
The dwarves had not valued privacy per se, they had just built it for maximum throughput with minimum delay. Their vision was broad and down-to-earth and the data it carried was of practical use for the greatest number. "We use our own devices and just enough magic to make them go. Devices such as the palantir are of no interest to us, the Elves of Valinor can keep their silly patents. The palantir does work for distance communication but it is incredibly expensive and uses a lot of bandwidth. It is also dangerous. If you wish to talk to family and friend, or close a simple deal, why would you wish to link minds, wrestle in thought or lock souls with the other party? The dwarves deliver only voices and runes and stay clear of elvish mind-fuck. Besides, the palantir uses a proprietary network and has no user-servicable parts. Like the Blackberry."
But the dwarves' cleverness though inspired by wisdom was also their folly. While great wealth flowed through their network they were driven to perfect it, and that meant concentrating the flows of many through but a few interconnect points.
"Undoubtedly that was what brought the dragon. Dragons burrow themselves into networks to steal information you know, wherever they can find it; and they guard their plunder as long as they live (which is practically forever, unless they are outed by Congressional hearing), and --- if you would believe them --- they do it for only noble purposes and never enjoy a brass ring of it. Indeed they hardly know a good bit of information from a bad, though they usually have a good notion of the current market value; so despite noble aims of vigilant protection, their omnificent awareness inevitably leads to dull and stupid ends that rend the fabric of society. Insider trading, scheming false flag operations and a 'selective failure' to divulge clear warning of terrorism if it would serve their own ends, a dragon is easily turned to the dark side by its very
<blink>down the rabbit hole</blink>
But if anyone believes this database is gonna actually be shut down, erased, etc, I have some beach-front property to sell you. Best case scenario is is gets ruled illegal and then moved deeper underground, and we can all pretend that it's really not operating anymore.
So all it would take to end this discussion would be a "next 9/11"? How about rigging one up?
Oh, wait...
I have this image of Leonard Cohen standing in the corner of the courtroom singing "Everybody Knows" during the hearing...
"the U.S. Court of Appeals for the 2nd Circuit."
So is itt the first court or the second court?
... then they will learn that they can collect massive amounts of data, but they have to keep their mouths shut and control who has access.
It little behooves the best of us to comment on the rest of us.
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.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
who modded you up??
have you seen my sig? there are many others like it but none that are the same
Once it is clear again that it is illegal and unconstitutional for the government to order people to hand over all their records without a warrant, then companies will again have the right to refuse records requests and privacy agreements become valid contracts again. That at least allows people to again choose companies with better privacy policies which have contractual weight to privacy violations. Right now the government just jots down a few sentences on a piece of paper, hands it to the company and the company is required to give them whatever the government wants without a warrant and the company can't tell you about it, and you can't sue them for violating any privacy provisions of their contract with you even when you find out about it later. Sure some companies will roll over... based on past behavior you can probably expect Verizon and Comcast to just continue the practice under an agreement instead of an order. But there could be some VOIP phone providers that don't play ball with the NSA and will have privacy agreements that say so. Same with other businesses, there will again be some freedom to pick and choose companies based on privacy concerns.
overly broad? its a single sentence! I dont understand why SO many people have trouble understanding single sentence amendments in america.
have you seen my sig? there are many others like it but none that are the same
The Constitution can not violate itself either. Any law made in the United States, including constitutional amendments, must measure up to constitutional scrutiny. The constitution guarantees the right of persons to be secure in the homes and effects unless a search warrant is duly procured that is specific as to the person to be searched and what is being searched for and is based upon probable cause. The interpretation by the FISC of Section 215 violates this. The searches have not been "particular," the word used by the Constitution, they have been dragnets both in terms of the persons searched and things seized. When you send an order to Verizon demanding ALL their customer data that is that is hardly particular. Nor would it meet the standards of probable cause. Probable cause can't not be applied to a massive group of millions by saying "one of them may have done something." Probable cause is a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true. The vast majority of the people involved in these sorts of searches do not fall under that. There is no circumstantial support to the need to gather their information. Constitutional amendments must also be constitutional, as must all laws passed by Congress, executive orders signed by the President. Even state and city laws must adhere to the laws passed above them all the way up to the Constitution. It is not just a piece of paper with words on it. It is the core beliefs underpinning the creation of all our other laws. It is a codified standard that has the backing of the force of law via the Supreme Court. Laws that are found to not measure up to the standard are overturned. The argument the government is making is that "well, the law was passed by Congress, and it hasn't been challenged yet, therefore it is constitutional and can't be challenged." It is a ridiculous argument.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
There was a big debate at the time whether it should read "The powers not expressly delegated...", they removed the word "expressly" so the Federal government could pass laws without needing an amendment to the Constitution every time. Whether a law violates States' or people's rights is a separate issue.
I think the ponies performed much better than the dogs.
im not sure if you meant to reply to me or PP, because we seem to agree here
have you seen my sig? there are many others like it but none that are the same
I have the video paused right now at a point (34:43) where the middle-seated judge had just asked, when the constitutional argument came up, if Verizon could not access and utilize these records.
I find the question somewhat bewildering.
The 4th amendment was written to limit the government's ability to search and seize. If you favor an incorporated view of the 14th amendment, these limitations extend to the states, and from there to the legal establishments within the states, the various county and city and town legal structures.
In no way was the 4th amendment addressed to private entities; limits of this type are set by contract, and by over-riding legislation which is not constitutionally based, but instead -- supposedly -- based upon the apparent needs of the community. Even if the constitution is taken as a model for such legislation, it is not the authority for it.
I see absolutely no relevance at all as to what Verizon could, or could not, do with the data. The question at hand is what the government can do with the data.
It is frustrating to see a sitting member of the bench ask such a wrongheaded question, implying that there is any relevance at all between the issue of constitutional constraints on the government, and business practice.
The 4th requires probable cause, supported by oath or affirmation, before a warrant may be issued, and that warrant has to specify the place(s) to be searched and the thing(s) being searched for. The clear implication is that the warrant is required or the search is unreasonable, and the prerequisites for that warrant are laid out clearly as I have stated. Here's the 4th itself for reference:
I've fallen off your lawn, and I can't get up.
No.
Constitutional ammendments do not need to measure up to the existing constitution. Their process of approval does, but the ammendment itself is intentionally intended to NOT agree with the current constitution (as currently understood).
I think we've pushed this "anyone can grow up to be president" thing too far.
im not sure I follow what you are getting at. The amendment is pretty clear, If X is not in the constitution, then it needs to be amended to the constitution to give the rights for the federal government to do X
this has nothing at all to do with what is currently in the constitution, but everything that is not. It in no way says that the constitution cant be amended to allow for the federal government to do X, there is even a proper way to do so (constitutional convention)
have you seen my sig? there are many others like it but none that are the same
Abridged version:
The right of the people to be secure [...] against unreasonable searches [...] shall not be violated [...] but upon probable cause
Regardless of how the government acquires the information, is the government performing unreasonable searches against the people? One might argue that inspecting every persons communications is both and reasonable and cannot possibly qualify for probable cause.
I just finished watching the entire proceeding, with a few short rewinds.
I'm appalled even at the suggestion that because the government thinks it "needs" to do something, it can. This theory permeates several of the points made; it is invalid from the ground up. If the government believes it needs something that is constitutionally prohibited, its remedy is found in the pursuit of the processes laid out in article five of the constitution -- not in outright ignoring the hard limits set upon it by the bill of rights or other sections of the constitution.
Likewise, the "is it reasonable" sophistry was very upsetting to encounter again. It's an outright stupid tack to take. The 4th does indeed include the word unreasonable, but it then proceeds to describe what is reasonable: probable cause, supported by oath or affirmation, may cause a warrant to be issued though that warrant must be specific as to place(s) and item(s) to be searched for. Those conditions all being met, the search is then both reasonable and authorized. The fact is, if all it takes is someone saying "well, I think it's reasonable that we search fyngyrz premises (or whatever)" and this over-rides the very specific instruction that a warrant is required, then the entire 4th amendment is without any meaning at all other than perhaps, optionally, advisory.
On the subject of who can search what...
If I hire a house-helper to whom I assign the roles of answering the phone, keeping the larder up to date, cleaning and laundering, this person clearly has my permission to search. They will search under furniture, appliances and cushions for debris; they will search cabinets and the refrigerated devices for out of date or missing foodstuffs, they will open my drawers and organize and store my clothing. They will, in large part, know who has called me on my home phone, and who I may have called out to.
Fine. I can give such permission. But this, in and of itself, in no way serves to authorize the government to search my premises -- for anything. The 4th limits the government with regard to my person, houses, papers and effects. It does not (obviously) limit me, or someone I hire a service from and extend such permission to, from searching. The 4th is clearly not limiting action in the public sphere. It is limiting action in the government sphere.
Relating this to Verizon and its peers: By contracting to make phone calls through their capabilities, in no way have I extended the government access to my communications, in any part or parcel. What I have done is arrange for a service by Verizon/peers without extending the government any permissions at all, and the government, absent my explicit permission pretty much identical to that as given to my house-helper, is restrained, intentionally so by the 4th amendment from searching for anything, anywhere, in regard to my communications. Which, in case anyone is wondering, is also the rationale that underlies title communications law with regard to the content of my calls, and also forms the basis for the prohibition of any person monitoring cellular radio links.
Every time the government succeeds in arguments from need instead of authorization, we become subject to the whim of individuals, rather than to a constitutionally limited government. It should frighten the living daylights out of anyone who understands the issues when the rationale is "but we NEED to", as was seen multiple times in the government side of this proceeding; and the more so when the judges don't laugh in the face of the person presenting that argument.
Remember: If the idea is that the constitution is merely advisory, then there is no functional difference between the US government and that of any tin pot dictatorship. Someone says "I wanna", and it happens. That's most definitely not how our country was intended to operate; otherwise the framers were completely wasting their time.
Sigh.
I've fallen off your lawn, and I can't get up.
Informally, I agree with you that it is treason. It does not, however, meet the legal test for such. So your conclusion(?) is invalid.
I think we've pushed this "anyone can grow up to be president" thing too far.
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
I may be wrong here, but I believe that kelemvor4's comment was in reference to a purported quote of George W. Bush, wherein Bush was snappily replying to GOP leaders who suggested that what Bush proposed doing was unconstitutional. It seems that the quote might be apocryphal.
Cheers,
"What in the name of Fats Waller is that?"
"A four-foot prune."
Aaahhh.... I didn't read the amendments. I only read the original.
How in the hell do the Feds do ANYTHING then? You'd have no interstate highways, no... anything. Sheesh.
I prefer to think of amendments as expounding on and clarifying further the Constitution's mission, as seen in the Preamble. In order to: ...
We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
Last but not least is securing the blessings of liberty. Liberty, aka freedom is by very definition non-restrictive. When it comes to "We the people", that is citizens of the United States, everything which is not forbidden is allowed. When it comes to "government", the opposite is true - Expressio unius est exclusio alterius - The express mention of one thing excludes all others.
Like a city whose walls are broken down is a man who lacks self-control.
well the highway is an actual legit use of the interstate commerce clause. that is a legit function
have you seen my sig? there are many others like it but none that are the same
Most interesting are the first five min...
It is not a debate....
Positions in writing... have already been submitted.
Second Circuit Court of Appeals in New York City sits where
in the chain.
Email is not covered... but there are parallel email issues.
Grand jury issues too. Bulk collection...
Back in a couple of hours.
Truth is stranger than fiction, but it is because Fiction is obliged to stick to possibilities; Truth isn't. Mark Twain.