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Default Road to SCOTUS: NSA Wiretapping

Recent splits between district courts is making it likely that the issue of NSA wiretapping will be heading to the Supreme Court sometime soon. I'm currently reading over the decisions and will provide my input in a bit, but I figured I'd throw them up here because they take a little bit of digging to find. Articles precede each to give some background.

Judge: NSA’s collecting of phone records is probably unconstitutional

By Ellen Nakashima and Ann E. Marimow, Published: December 16

A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional.

U.S. District Judge Richard J. Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.

Leon granted the request for an injunction that blocks the collection of phone data for Klayman and a co-plaintiff and orders the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, recognizing in his 68-page opinion the “significant national security interests at stake in this case and the novelty of the constitutional issues.”

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, a judge on the U.S. District Court for the District of Columbia. “Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”

The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful. It marks the first time a federal judge in open court has opined on the collection of lawfulness in a case not involving a criminal defendant.

A Justice Department spokesman, Andrew Ames, said Monday that the government was reviewing Leon’s decision. “We believe the program is constitutional as previous judges have found,” he said.

The challenge to the NSA’s once-classified collection of phone records is one of a series of cases filed in federal court since the program’s existence was revealed in June by former NSA contractor Edward Snowden.

Snowden praised the ruling in a statement made to journalist Glenn Greenwald, who received NSA documents from Snowden and first reported on the program’s existence.

“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” said Snowden, who has received temporary asylum in Russia, where he is seeking to avoid U.S. prosecution under the Espionage Act for leaking NSA documents. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”

The ruling also comes as Congress is debating whether to end the NSA’s “bulk” collection of phone data or endorse it in statute. The White House, U.S. officials say, supports maintaining the program.

“It will be very difficult for the administration to argue that the NSA’s call-tracking program should continue when a federal judge has found it to be unconstitutional,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union, which has also sued the government over the program’s constitutionality.

But George Washington University law professor Orin Kerr said, “It gives opponents of the NSA program more fuel to add to the fire, but its legal impact is quite limited because the case now just goes to the court of appeals.”

The government has stressed that the program collects only “metadata,” such as numbers dialed and the times and lengths of calls, but no phone content or subscriber names. Officials say that only numbers linked to suspected terrorists are run against the database.

Leon’s opinion countered that the program is so sweeping — the database easily contains billions of records — that it amounts to a “dragnet” that intrudes on the constitutional expectation of privacy. He dismissed the government’s claim that “special needs” requiring quick access to data that could thwart a terrorist plot make a warrant impracticable. “No court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” he said.

The government’s legal justification for the call-tracking program is based on a 1979 case, Smith v. Maryland, involving the surveillance of a criminal suspect over a two-day period. In that case, the Supreme Court said that Americans have no expectation of privacy in the telephone metadata that companies hold as business records, and that therefore a warrant is not required to obtain such information. A succession of judges on the Foreign Intelligence Surveillance Court have adopted the government’s argument based on that ruling.

But Leon said the question the Supreme Court confronted in 1979 is not the same as the one he was faced with. “Indeed, the 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 does not apply?” he wrote. “The answer, unfortunately for the government, is now.”

Kerr said Leon is wrong to suggest that Smith no longer applies. That decision, he said, draws a clear distinction between the collection of data on numbers dialed and on call content. The metadata information the government is gathering today, Kerr said, is the same type of information the court said that law enforcement could collect more than 30 years ago. “The opinion is more valid now than it was,” Kerr said, adding that “it’s up to the Supreme Court to overturn its decision, not trial judges.”

Leon, who was nominated by President George W. Bush and appointed to the bench in 2002, said the government has played down the program’s invasiveness.

The “almost-Orwellian technology” that allows the government to collect, store and analyze phone metadata is “unlike anything that could have been conceived in 1979” and, “at best, the stuff of science fiction,” he said.

Klayman, founder of the public interest group Freedom Watch, called Leon’s ruling “courageous.”

“This is a warning to both parties that they'd better start observing the rule of law and protecting the American people or there will be severe consequences,” he said.

Meanwhile, Verizon Communications, named as a defendant, filed a motion Monday asking to be dismissed from the case. The request was based in part on a certification also filed Monday by the Justice Department that the company has immunity against lawsuits since it was compelled by a court order to comply with the government’s request for data. That immunity was authorized under a 2008 law known as the FISA Amendments Act.

In his ruling, Leon rejected the government’s argument that Klayman and a co-plaintiff — the father of an NSA cryptologist killed in Afghanistan in 2011 — lacked standing to bring the suit because they were customers of Verizon subsidiary Verizon Wireless, which has not been publicly revealed as taking part in the program.

“The government,” he said, says it has created a “comprehensive” database — “in which case, the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States.” Yet, at the same time, he wrote, the government asserts that the plaintiffs lack standing “based on the theoretical possibility” that the NSA has not collected Verizon’s records. “Candor of this type defies common sense and does not exactly inspire confidence!” he wrote.

To draw an analogy, he wrote, omitting Verizon Wireless, AT&T or Sprint “would be like omitting John, Paul and George” and building a “Ringo-only database.”

Case: Klayman v. Obama. Decided: 12/16/13

US judge rules NSA phone tapping legal: District Judge William Pauley says National Security Agency programme is Washington's "counter-punch" to al-Qaeda.
Last updated: 27 Dec 2013 18:43

A New York judge has ruled that the National Security Agency's collection of millions of Americans' telephone calls is lawful, rejecting a challenge by the American Civil Liberties Union to the controversial counter-terrorism programme.

US District Judge William Pauley ruled on Friday that the NSA programme "represents the government's counter-punch" to eliminate al-Qaeda, and said the programme's constitutionality "is ultimately a question of reasonableness".

In a 54-page decision, Pauley said there was no evidence that the government had used the data acquired by the NSA for any reason other than to investigate and disrupt "terrorism".

He added that the NSA programme could have helped investigators gather information to prevent the 9/11 attacks on the Twin Towers in New York City in 2001.

"The government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world,'' Pauley wrote.

Tapping defended

The judge denied the ACLU's motion for a preliminary injunction, and granted a government motion to dismiss the case.

The federal case came after whistleblower Edward Snowden revealed the NSA was picking up millions of telephone and internet records that are routed through US networks each day. The secret programme, critics say, violates privacy rights.

In October, media reports accused the NSA of also collecting tens of millions of European phone records, and spying on political leaders, such as German Chancellor Angela Merkel.

US President Barack Obama has defended the surveillance programme, but indicated a willingness to consider constraints.

The ACLU and the White House had no immediate comment on Friday's ruling.

"We are pleased with the decision," said Justice Department spokesman Peter Carr.

Republican Congressman Peter King, chairman of the House Homeland Security Subcommittee on Counterintelligence and Terrorism, said in a statement that Pauley's decision "preserves a vital weapon for the United States in our war against international terrorism".

Case: ACLU v. Clapper. Decided: 12/27/13
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I haven't looked hard into the details of how the NSA collects the data, so feel free to inform me or correct me if I am wrong. (I took a short look at this site: http://www.propublica.org/article/ns...collection-faq)

This program was revealed through a leaked secret court order instructing Verizon to turn over all such information on a daily basis. Other phone companies, including AT&T and Sprint, also reportedly give their records to the NSA on a continual basis.
So what is actually at issue in the case moving forward? Is it whether or not they can issue such secret court orders demanding so much information of people not suspected of criminal activity? Or is it that they aren't allowed to acquire that information by any means (this seems unlikely). For example, if the court order method was deemed unconstitutional, couldn't Congress just legislate conditional subsidies for communications corporations that provide them with the desired metadata? Then all these companies would have to do is maybe alter their terms of service agreements to state that they will provide metadata to the NSA or whatever, the people will (almost surely) comply, and alas the NSA still gets all the data through an indirect agreement of those whose information will be collected.

I'm just unsure of what is precisely at stake here, and of what significance a finding of the NSA's data collection as being unconstitutional would have on actual policy moving forward.
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I'll try to get back to you by Sunday. I read up on this after I made this thread and forgot to post.

Pretty sure each court couched it as Katz and Smith questions of reasonable expectations of privacy under the 4th Amendment. From what I read, I think SCOTUS will uphold the practice of obtaining the data in the case (i.e. persons do not have a reasonable expectation of privacy in the metadata obtained). I remember the one case finding against the government being kind of sensationalist but at least still driving home the point that it's practically Smith (i.e. pen registers) on steroids.

Also, I think it was understandably ruled in definitely one and possibly both cases that individuals lacked standing to sue the government for the creation or procedures of those courts. Again, I'm hazy on it, but I'll get back to you on it.

Last edited by muRda; 01-24-2014 at 07:53 PM.


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