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US Appeals Court Says NSA Phone Surveillance Is Not Authorized By Congress

New submitter IronOxen writes: A panel of three federal judges for the second circuit overturned an earlier ruling. The court has ruled that the bulk collection of telephone metadata is unlawful, in a landmark decision that clears the way for a full legal challenge against the National Security Agency: "'We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,' concluded their judgement." That's not exactly saying that such bulk collection is unconscionable or per se unconstitutional, but it's a major step toward respecting privacy as a default.

30 of 237 comments (clear)

  1. Re:We're so screwed. by Spazmania · · Score: 5, Insightful

    We have indeed tasked loyal people with a job. You misunderstand that job. The job is to keep us as safe as possible within the restrictions on methods that liberty requires.

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  2. Not authorized is worse than unconstional. by gurps_npc · · Score: 5, Insightful

    It means that they personally are at fault, rather than that Congress overstepped it's authority.

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    1. Re:Not authorized is worse than unconstional. by Noah+Haders · · Score: 4, Insightful

      No, not authorized is a lighter ruling. It means tomorrow congress can pass a law explicitly allowing it, and there would be no problem cuz it wasn't ruled unconstitutional.

    2. Re:Not authorized is worse than unconstional. by Brett+Buck · · Score: 5, Insightful

      It doesn't mean that - it means that the status of the constitutionality is still open to question. This ruling takes no position on that, just that Congress did not authorize it. Congress could pass a law tomorrow authorizing it, THEN it could be challenged on grounds of constitutionality.

  3. For those who can read... by BrendaEM · · Score: 5, Insightful

    Amendment IV

    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.

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    1. Re:For those who can read... by Anonymous Coward · · Score: 2, Insightful

      Remember that "Snowden" guy who got this ball rolling, and is now in exile because of it?

      Too bad there isn't anything we can do to help him out....

    2. Re:For those who can read... by JMJimmy · · Score: 5, Insightful

      Which of my "person, house, papers, and effects" is the phone company's information about my phone calls?
      It's information about me, but it belongs to the phone company, and they have it. The government can search through it without any impact to me at all.
      I'm not saying they should be allowed to, but the 4th Amendment is irrelevant here.

      You must interpret the meaning of the time to the technology of today. Communicating over distance when this was written was done by paper handed to a courier. Now that paper is an electronic signal and the courier is an ISP or phone company. Would you consider the government following each and every courier you sent out to see who you were talking to a violation of your privacy in the 1780s? I would

      All that said, if you RTFA or even the summary... "That's not exactly saying that such bulk collection is unconscionable or per se unconstitutional, but it's a major step toward respecting privacy as a default. "

    3. Re:For those who can read... by hierofalcon · · Score: 4, Insightful

      Pretty sure that the individuals involved in writing the constitution and the bill of rights would have felt such data would have been considered private to the individual. I would go so far as to say they would have required the companies that recorded the data for billing purposes to remove it when the bill was paid without dispute instead of hanging on to it at all. To let the government sift through it would have been unthinkable.

      They had a real clear idea of what it took to mount a revolution without the government knowing what was going on. Several of the amendments are there specifically to keep the government from laying a heavy hand on anyone in the future to ensure that what they had shed blood for would not be trampled on again by any future tyrannical powers

      It's pretty clear that 200 years have dimmed the collective consciousness of the people. Poor public schooling hasn't helped.

    4. Re: For those who can read... by Anonymous Coward · · Score: 2, Insightful

      Yea, 200 years ago they should have known to add the terms "e-mail", "cellular phone", "book of faces", and "twitter".

      I certainly consider text messages my "papers". The fact it's not written on a physical tree makes no difference to the spirit of the amendment. And my digital trail is certainly one of my "effects".

      When did the world change where we let the lawyers convinced some of us that if every narrow hair split word isn't in a contract then it doesn't apply?!?! If I say "every day of the week" somehow it's argued that Friday is exempt because I didn't say "including Friday"

      The fourth amendment is clear. The government is not allowed to search or view things a common person would assume we're private. The fact that standing general warrants were one of the primary reasons we had just revolted against England, the writers probably assumed this point would be pretty f'n clear.

  4. Yeah so? by Anonymous Coward · · Score: 5, Insightful

    Just because it's illegal or not authorized doesn't mean that they will stop. They'll simply continue and do their best to keep it hush hush

    1. Re:Yeah so? by random+coward · · Score: 4, Insightful

      Just because it's illegal or not authorized doesn't mean that they will stop. They'll simply continue and do their best to keep it hush hush

      This is true. It also severely erodes the rule of law. As more mundane average productive Americans realize that they're following the rules but the government isn't, and get screwed by it, they'll start to realize they should only follow the rules when they would get caught. This is a recipe for an uncivil society leading to a societal collapse.

      Or to paraphrase a saying from communist countries; They pretend to enforce the law and we'll pretend to follow the law.

  5. The Real Question by Sir_Eptishous · · Score: 4, Insightful

    Senator Rand Paul, a Republican presidential candidate who has made opposition to overbroad surveillance central to his platform, tweeted: “The phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.”

    How fast would his attitude towards surveillance change if were elected president?

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    1. Re:The Real Question by Anonymous Coward · · Score: 5, Insightful

      About as fast as Senator Obama's changed when he was elected president.

    2. Re:The Real Question by cdrudge · · Score: 5, Insightful

      Did you drive to work today? I bet you exceeded the speed limit at some point. Or possibly pushed the limits on that yellowish-red light you ran. Have you ever sang a non-public domain song without paying a royalty (including Happy Birthday)? Jaywalked? Failed to register and/or vaccinate your pet? Not changing your address when you move?

      Guess what. You're no longer law abiding. He doesn't have to change his attitude since he qualified his statement. If he said "the phone records of citizens are none of the NSA's business" then we can talk about his attitude if he were to be elected.

  6. Re:We're so screwed. by Noah+Haders · · Score: 4, Insightful

    When that next truck bomb detonates at a sporting event or mall, or when that next muslim fan goes on an indiscriminate killing spree through a church, know in your heart that you have allowed that to happen.

    I'll enjoy my freedom, thankyouverymuch, even if it does come with an 0.001% chance of dying by terrorist.

  7. Re:We're so screwed. by Anonymous Coward · · Score: 5, Insightful

    The terrorists did less damage to our way of life than this kind of government spying on its own citizens.

  8. Re:We're so screwed. by koan · · Score: 3, Insightful

    know in your heart that you have allowed that to happen.

    Show me some data showing this surveillance has worked and I might agree with you.

    Other wise, if you give an ape a gun sooner or later someone gets shot.
    https://www.youtube.com/watch?...

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    "If any question why we died, Tell them because our fathers lied."
  9. Hardly by Anonymous Coward · · Score: 4, Insightful

    The reason there are people who want to use asymmetric warfare (terrorism) is because they are outmatched. We, the USA, were the ones who threw the first punch with our occupation of Muslim countries. We can rationalize it all we want that we are fighting for "freedom", helping the oppressed or whatever the delusional shit we tell ourselves for our ridiculous foreign policy. It's all lies. We are occupying other countries and their people do NOT like it. what is so hard to understand?!

    If we were TRULY fighting for those things, then we must invade Saudi Arabia, Israel, N.Korea, China, Somalia, etc ......

    And if we were fighting for freedom, then why did we oust Saddam from Kuwait and reinstate a monarchy? That makes no sense.

    The US' foreign policies are hypocritical and the rest of thee World knows it and sees it. Unfortunately, we Americans have been brainwashed by our propaganda - corporate for profit propaganda - because it's what we want to hear. When the fact is we're two faced bullies.

    1. Re:Hardly by Archangel+Michael · · Score: 1, Insightful

      We, the USA, were the ones who threw the first punch with our occupation of Muslim countries.

      When the WTC was bombed the first time (By Radical Muslims), which Muslim Country did we occupy?

      I won't hold my breath waiting.

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  10. Re:Snowden? by NormAtHome · · Score: 4, Insightful

    It would be nice, but don't count on it. The political machine is very angry at him and wants him made an example of.

  11. Re:We're so screwed. by naasking · · Score: 5, Insightful

    You've tasked these loyal people with a job to do in order to keep the USA and its citizens safe, and then removed the tools they need to do the job effectively.

    Except there's no proof that these tools are actually effective, and there are plenty of arguments made by experts that they cannot possibly be effective (too many false positives ties up scarce investigative resources). So I reject your whole premise.

  12. Re:We're so screwed. by maz2331 · · Score: 5, Insightful

    It didn't stop the Boston bombing, and the government knew the perpetrators, and the same with the attempted attack the other day in Texas. Too much data is just as bad, or worse, than not enough. Hindsight is always 20/20, and in almost every attack we find that the intel was there to stop it, but wasn't acted upon. So, we're just as screwed with it as without it.

  13. Re:We're so screwed. by Anonymous Coward · · Score: 5, Insightful

    Lets see how well did the spy on everyone program work when two "nice" muslim guys from Phoenix, one of which was already being watched for terrorist ties, drove to Dallas and attempted to shoot up the event that offended them. If our government can't stop terrorists they know are terrorists through all the domestic spying why do some think they are safer by having the government spy on them?

  14. Re:We're so screwed. by JMJimmy · · Score: 3, Insightful

    The terrorists did less damage to our way of life than this kind of government spying on its own citizens.

    Yup. Terrorism between 1970-2007: 1 in 3,500,00 chance of being killed by a terrorist. In 2007 alone you had a 1 in 22,000 chance of being murdered in the US.

  15. Re:We're so screwed. by Anonymous Coward · · Score: 2, Insightful

    Someone mod this up.

    First time I've seen anyone asking the obvious question: if the guy was being watched by the FBI for the last N years, how did he ever get close enough to the event to start shooting it up? Could have turned out a lot worse.

    How many of our taxpayer dollars were wasted watching this guy to no useful end? How many are spent on even more useless activities?

  16. Re:We're so screwed. by halivar · · Score: 5, Insightful

    I disagree. They are not tasked with keeping us safe; they are tasked with safeguarding our liberties.

  17. Re:We're so screwed. by zugmeister · · Score: 5, Insightful

    .... keeping in mind that what liberty requires in regard to restrictions may be different than what the mob believes.

    I would argue that infringing on the privacy of the people to keep them (questionably) safe(r) is just exchanging one loss of liberty for another.
    How about we disregard what EVERYONE thinks and go by what the law says. How's that 4th amendment go again?

  18. Re:We're so screwed. by Anonymous Coward · · Score: 2, Insightful

    You're missing the point... The mass surveillance makes it harder to keep track of actual threats and if the FBI did not spend all their time training fake terrorist to create fake victories they could start looking at real terrorist.

  19. Re:We're so screwed. by zlives · · Score: 3, Insightful

    yes but how does the war machine make money off of that?

  20. Doesn't even work by WillAffleckUW · · Score: 3, Insightful

    Seriously, the worst part is that it's doesn't achieve it's stated objectives.

    Intel gathered in Saudi Arabia, Yemen, Pakistan, Afghanistan and some other rogue states like Bahrain, yields actionable intel.

    Intel gathered in the US has somewhere around 99 percent false leads that hide the 1 percent we would have found if we only used the above intel instead, and then used specific warrant leads.

    That to me is the take home from this Illegal and Unconstitutional NSA data collection program.

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