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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Our entire government seems to think the constitution can be superseded by any other law whatsoever, as if the constitution being the highest law of the land doesn't actually overrule anything that contradicts it.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.
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
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.
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.