The new US government defense against legal challenges


The Fourth Amendment to the US Constitution is short and to the point.

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.

The phrases I italicized state quite clearly that you can only search a person’s private possessions if you get a warrant from a judge and that warrant must have as its basis a sworn oath that there is probable cause to suspect that there is evidence to be found, and that what is to be searched has to be clearly specified in advance. It is meant to prevent the government from simply invading people’s privacy at random, hoping to find something incriminating. [UPDATE: See the comment by dmclean for a more sophisticated analysis of what is allowed and not allowed by the Fourth Amendment.]

On the face of it, the widespread and indiscriminate scooping up of people’s communications is a clear violation of the Fourth Amendment. But up to now, the US government has successfully defended itself against these charges, not on the merits of their case, but by using the technical argument of standing to get the complaints dismissed. The government invoked national security to refuse to disclose whether it had any such surveillance program at all and claimed that the plaintiffs could not prove that they had been spied upon and suffered any harm and thus lacked standing to sue. This strange argument was accepted by the courts, since no one wants to be accused of jeopardizing national security and blamed when and if any attack should occur.

That government defense has now fallen apart with the revelations by Edward Snowden, and the US government has been forced to acknowledge the existence of the spying program, with the office of the Director of National Intelligence issuing a statement saying that the government has asked for, and received, permission from the FISA court “to collect telephony metadata in bulk“. [My italics-MS]

A new round of legal challenges against the spying program is in the works so what will the government do now? It is shifting the goal posts. The US now plans to defend itself by saying that such collection is justified because it is in the ‘public interest’, “does not breach the constitutional rights of Americans and cannot be challenged in a court of law”. It further goes on to argue that the plaintiffs have standing to sue only if they can prove that the NSA not only collected their personal data but actually analyzed it. Since the analysis part is of course still done in secret, it brings us back to square one.

Congress is not the only venue for challenges to the NSA bulk surveillance. Lawsuits filed in New York and California federal courts by the ACLU and the Electronic Frontier Foundation challenge the legality and constitutionality of the phone records dragnet.

The Justice Department has already argued in New York that the phone records collection cannot be challenged in court unless litigants can prove not merely that their phone data was collected but that it was analyzed by NSA, a standard that would make the program unreviewable since the analysis occurs in secret.

The government argued in the preliminary hearing that it was in the process of deciding what documents to declassify and hence that there was no reason for a speedy trial. The judge rejected the government’s attempts to delay the start and has set a trial date for November 1.

The Snowden revelations may result in the courts being less deferential and more skeptical to claims of national security concerns by the government. At least I hope it does.

Comments

  1. Corvus illustris says

    The US now plans to defend itself by saying that such collection is justified because it is in the ‘public interest’, “does not breach the constitutional rights of Americans and cannot be challenged in a court of law”.

    Uh huh. It appears that the judge in the case described in the post may not think that vociferous assertion constitutes proof.

    BTW, it is instructive to compare what happens when the court and the judge are known to the public vs. the H. M. Court of Star Chamber FISA arrangement. Phrases like “speedy and public trial” were put in the Biil of Rights by persons with a memory of secret courts.

  2. dmcclean says

    In large part your coverage of the wiretapping and related abuses has been spot on, but this one specific claim is incorrect and draws an overly broad conclusion from the text.

    The 4th amendment, italics yours:

    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.

    Your precis:

    The phrases I italicized state quite clearly that you can only search a person’s private possessions if you get a warrant from a judge and that warrant must have as its basis a sworn oath that there is probable cause to suspect that there is evidence to be found, and that what is to be searched has to be clearly specified in advance.

    This is not the case. If you read carefully, the text does not (“clearly” or otherwise) say “that you can only search a person’s private possessions if you get a warrant”. It says that you can only search a person’s private possessions if the search is not “unreasonable” and separately lists a set of conditions under which warrants may be issued.

    Your implicit premise, that only searches with warrants are not unreasonable, does not appear in the text and has been repeatedly held by the Supreme Court not to be implied by it. See, inter alia, Weeks v. United States (232 U.S. 383 in 1914), Carroll v. United States (267 U.S. 132 in 1925), and Warden v. Hayden (387 U.S. 294 in 1967).

    Additionally, seizures (which appear directly in parallel with searches in the text of the amendment, and so would carry the same restriction of always requiring a warrant were your other premise true) have been held to be not “unreasonable” when the item to be seized is in “plain view” and its incriminating nature is “clearly apparent”. See Horton v. California (496 U.S. 128 in 1990).

    There are some other cases too, for example if the person being searched consents to the search that has been held to be not “unreasonable.”

    Your other implicit minor premise, that the issuance of a warrant as described by the amendment makes a search reasonable is more generally correct.

  3. Scr... Archivist says

    This might be easy to flip.

    It further goes on to argue that the plaintiffs have standing to sue only if they can prove that the NSA not only collected their personal data but actually analyzed it. Since the analysis part is of course still done in secret, it brings us back to square one.

    If some person of no previous interest does sue, you can guarantee that the NSA will then actually analyze their personal data. The person then has standing.

  4. unnullifier says

    I saw this on TechDirt and BoingBoing, and I have to say it counters the gov’t doublespeak pretty nicely: “If collecting my data without analyzing it isn’t surveillance, then downloading copyrighted works without opening them isn’t copyright infringement.

  5. Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden says

    @Paul Jarc.

    No. Not precisely.

    It’s rather become a major violation of the 5th amendment.

  6. says

    They’ve also argued that data stored on a hard drive is not “papers” and is not private if it’s transitory. So your emails on google – aren’t “yours” and are fair game.

    It’s bullshit, of course. But that’s how government and police operate.

  7. says

    The US now plans to defend itself by saying that such collection is justified because it… “does not breach the constitutional rights of Americans and cannot be challenged in a court of law”.

    Wow…I can see them trying to use that argument, but I would hope that would not be able to hold up. I mean, isn’t that what, at least in part, a court of law is for? For determining if something “breaches the constitutional rights of Americans”? That statement seems to read more like, “It does not need to be challenged in a court of law because we’ve already decided for the court!” So much for separation of powers!

  8. Mano Singham says

    I knew there had been a radio adaptation of Hitchhiker but not that there was also a TV series. I should try and get hold of it, if it is as any good as the clip you provided. The film version was quite good but not great.

  9. iasasai says

    Actually the first two novels are adaptations of the original radio series. Subsequent radio series are adaptations of the novels that were written as “sequels”. Personally, I’m more of a fan of the radio versions and barely remember the novel versions which are quite different from each other in some instances.

  10. lanir says

    Having to prove your data was analyzed is kind of like having to prove the theif that stole your wallet actually used your money to buy things. Were those your bills he bought a soda with at the convenience store or someone else’s? Do you have serial numbers? Can you prove it?

    Having the thief be the government doesn’t help much. The government, like a corporation, is an empty construct. It’s only as good or bad, as brilliant or dumb as whatever you fill it with. Mostly this turns out alright but when the filling is for sale, you’re kind of screwed.

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