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Dec 18 2013

Fed. Judge: NSA Metadata Collection Unconstitutional

A federal judge has ruled that a lawsuit filed over the NSA’s bulk collection of cell phone metadata violates the Fourth Amendment, but that ruling was stayed immediately to give the government the chance to appeal it to a higher court. But the language in the ruling is very important and spot on.

The government relies largely on a 1979 Supreme Court ruling called Smith v Maryland, which upheld the use of a so-called pen register to gather data on which numbers were being called by a particular phone without a warrant. But Judge Richard Leon dismissed the relevance of that precedent:

[T]he question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now…

“[T]he almost-Orwellian technology that enables the Government to store and analyse the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person’s phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data in perpetuity, was at best, in 1979, the stuff of science fiction.”

Let’s hope this is upheld on appeal.

20 comments

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  1. 1
    colnago80

    And guess who the victorious attorney was. One of the three most incompetent lawyers in America! Hint, it wasn’t Orly Taitz or Matt Staver.

  2. 2
    Marcus Ranum

    “[T]he almost-Orwellian technology that enables the Government to store

    It’s actually ahead of what Orwell imagined.

  3. 3
    daved

    Why hasn’t the government played the “State Secrets” card yet? I thought they did that every time.

  4. 4
    The Other Lance

    I don’t think your first sentence says what you want it to say: “A federal judge has ruled that a lawsuit … violates the Fourth Amendment, …”. Your grammar is a bit off. :-)

  5. 5
    The Other Lance

    daved: Now that the government has admitted the program exists and collect “comprehensive” metadata on U.S. citizens communications, it gives people stands to file suit. The state secrets card prevented plaintiffs from showing grounds to file because they couldn’t prove damage. The government’s own words gives those grounds now.

  6. 6
    tubi

    Re #5

    I suspect we’d still have to show actual damage, beyond just the fact that our data was collected. That’s not damaging enough in its own right (would be the govt’s argument).

  7. 7
    Moggie

    Come on, Ed, don’t be coy! Why didn’t you mention who filed this suit?

  8. 8
    Freedonian

    @ colnago80 #1 & Moggie # 7

    Ed may just be ‘hedging his bet’. Though I do believe the complaint and ruling are technically correct, the issue appears to be overly broad. The Appeals Court may very well find that the complainant does not have ‘standing’. Since I have not read the full opinion, I cannot say with certainty that the complainants will be able to prove that they were the subjects of such surveillance, but that is basically what will be the main focus of the case in the Appeals court.

  9. 9
    democommie

    I disagreed with the some of the judge’s thinking on this and I still do.

    I understand what he’s saying about the governments overreach but cellphone technology and computer technology are not the issue, afaic. The 4th Amendment was written when private conversations were either verbal and face-to-face or written and placed in a sealed container. If cellphone and computer technology allow gummint overreach why didn’t previous iterations of telecom and computer technology do so?

  10. 10
    Mobius

    And, to also point out, the government is not just using the data to determine a pattern of harassing phone calls. It can, according to the government, use the data for any damn purpose it wants.

  11. 11
    unbound

    @daved (#3) – They have been. The big change in this lawsuit is that Snowden released the information. Kind of hard to claim state secrets for information that is already public.

  12. 12
    hoku

    Am I the only one terrified that this case is the one that decides the issue going forward? I really don’t like the thought that our future lies in this moron’s hands.

  13. 13
    DannyFTB

    Even a broken watch is right two times a day! Man up, Ed, and give thanks to *gasp*Larry Klayman*gasp* for defending your 4th amendment rights.

  14. 14
    wscott

    From the linked ThinkProgress article:

    Whatever the wisdom of Smith on the day that it was decided, its conception of what constitutes a “reasonable expectation of privacy” imagined a world where government surveillance was relatively unusual and impossible to execute on a massive scale.

    Exactly this. Collecting cell phone metadata en mass is technically not that different from collecting pin register data. But at some point, technology has made mass collection so easy that it’s fundamentally different. The other technique I see cited as a precedent (don’t know the court case name) is mail covers, where the government can legally copy anything on the outside of the envelope as long as they don’t open it. Again, same principle, but widely different implications in practice.

  15. 15
    hoku

    @13

    I’m just terrified that he tanks the whole thing by handling the appeal.

  16. 16
    Trebuchet

    Right Wing watch, to it’s credit, does acknowledge Klayman’s involvement in the suit. While simultaneously referring to him as “unhinged”.

    Though he is an utterly unhinged, fringe right-wing activist, Larry Klayman has been reveling in all the attention he’s received over the last few days for being the first to win a lawsuit against the NSA over its domestic surveillance program.

    http://www.rightwingwatch.org/content/klayman-will-seek-national-security-clearance-his-lawsuit-against-nsa

  17. 17
    kraut

    http://www.atimes.com/atimes/Global_Economy/GECON-02-231213.html

    “LS: I think you have to guess about this question, but how is NSA intelligence provided to integrated and/or coordinated with the banking operations that are managing government accounts and interventions in the currency, commodity and financial markets, such as the Exchange Stabilization Fund, which is part of the United States Treasury but actually it’s hosted at the Federal Reserve of New York.

    TD: Well, that’s a very tightly coupled arrangement, and the Treasury Department has its own intelligence unit. There is a direct relationship; it’s incredibly deep in the shadows. They obviously don’t talk about it because we’re talking about extraordinarily sensitive information. It’s information that not only translates into enormous power but it translates into enormous leverage in terms of billions and trillions of dollars. I mean we’re not talking just a few million or even hundreds of millions, we’re talking hundreds of billions plus that are routinely affected by decisions that are made and when you have this kind of intelligence it’s going to be used, alright.

    So, but they don’t talk about that, but those arrangements are there. And there are units that share information understand that the funnel point for this [is] within the intelligence apparatus, you know there’s like 17 different intelligence agencies [and] one of them is inside the Treasury Department. Remember, you do have that relationship that extends to the Federal Reserve Bank, which by the way is a private entity, it is not, formally, part of the US government. If you actually look at it, it does not have a government frank when it sends out mail, it has its own, but that’s a much larger story, though, the creation of the Federal Reserve Bank.”

    ” There is this moral rectitude that the surveillance secrecy regime wraps itself in as did the Stasi.

    Remember they were the protectors of the State, that somehow the moral high ground superseded any rights, freedoms or liberties that an individual citizen had, and so when you say the drift, this drift is quite dramatic. This drift is citizens that have rights are now becoming subjects to and of the State in which the State simply regards them as wards of the State, and you get to have privileges that are determined by the State, and you have to continue to prove that as a subject of the State that you are innocent. It’s a complete inverse of our Western system of justice. ”

    “LS: Whose interests are ultimately served by secret intelligence agencies in the West?

    TD: Well, it’s become less and less the citizens and has become more and more a protectorate for the powers that be. ”

    Follow the money (power)

  18. 18
    dingojack

    Apparently there are several lawsuits about to come up over this issue, some civil, others criminal. This is simply the first to be decided (out of many) in the wake of the Snowden disclosures*. It will be appealed in higher courts**, but other rulings will be made and attitudes toward surveillance are changing.
    So as a first step, important; in relation to history, the first (unsuccessful) shot in the revolution (so to speak).
    Dingo
    ——–
    * paging Robert Ludlum, paging Robert Ludlum your novel title is waiting at the courtesy desk
    ** and likely be overturned

  19. 19
    Ichthyic

    I wish Eric Snowden could see me typing this, my personal thanks, to him for destroying his own life so the rest of us could see and have documentation.

    fucking hero, though likely will go into the history books of the US as a traitor.

  20. 20
    Ichthyic

    Dingo, we need to encourage OZ and NZ to leave the “eye five”.

    It’s shameful that our governments have signed onto this wholly intrusive and rights abusing scheme.

    first thing to do is get rid of Key and Abbott!

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