Saturday, December 21, 2013

138.1 - NSA spying probably unconstitutional

NSA spying probably unconstitutional

Okay, we have some good news. And it is really good news. Unhappily, it may prove to be temporary good news, but even if it turns out that way it's still good news because it shows a move in the right direction.

On Monday, December 16, US District Court Judge Richard Leon ruled that the National Security Agency's controversial spying program that collects data on tens of millions of Americans' telephone records is probably unconstitutional.

The ruling came in a lawsuit filed by a conservative activist - and frankly, flake - named Larry Klayman charging that the program violates the Fourth Amendment to the Constitution. Leon, responding to a move by the government to have the case dismissed, said this:
The court concludes that plaintiffs have standing to challenge the constitutionality of the government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim (of unlawful search and seizure), and that they will suffer irreparable harm absent ... relief.

What's more, Leon slammed the very idea that the massive spying even works.
Given the limited record before me at this point in the litigation - most notably the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics - I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.
The government, Leon wrote, "does not cite a single instance" of the spying stopping an imminent attack. The government has repeatedly claimed in public that NSA spying has helped stop literally dozens of attacks, but presented the judge with no evidence to back that up, not even in a closed hearing.

Leon issued a preliminary injunction against the program but suspended the order to allow an appeal by the Justice Department, an appeal which he said he fully expected to do come and which, he acknowledged, could take six months.

The case is one of several that are coming up in the next months.

In another, during a hearing last week in a Manhattan courtroom, US District Judge William Pauley III was described by observers as "receptive" to the idea that Americans enjoy some level of privacy in their phone records.

The government's defense of the constitutionality of the phone spying program has always rested on Smith v. Maryland, a Supreme Court decision from 1979 that found that Americans have no expectation of privacy in who they are calling, because they knowingly give that information to phone companies and therefore police don't need a warrant to get that information. That decision has always struck me as utterly bizarre; it's saying that because you have to tell the phone company who you're calling in order for the call to be made that therefore the government can know, too, and the decision has been expanded to cover things like banking records - because the bank knows what transactions you've made, what deposits and withdrawals you have made that therefore the government can know, too - but it is, unfortunately, the law. James Madison, I believe, would be aghast.

Anyway, that's the argument. However, in that case, in the Smith case, all the police could find out is what number the person called.

During the hearing, Pauley asked "Doesn't the information collected here reveal far more?" And indeed the metadata the NSA collects can reveal far more than just a phone number, enough so that at least two members of the Supreme Court have expressed the opinion that the Smith ruling may be outdated. In his opinion, Leon also addressed that issue, calling current technology "almost-Orwellian" and "a far cry" from that found in, or envisioned in, 1979.

The suit before Pauley was filed by the American Civil Liberties Union, the ACLU, and its New York affiliate just days after the program was revealed in news reports drawn from documents leaked by Edward Snowden. An earlier ACLU suit about government spying was dismissed in 2012 because, the Supreme Court ruled, the fact that the program was secret meant that the plaintiffs couldn't prove they had been targets of spying and so had no legal standing to challenge it - which is another interesting bit of twisted thinking; it's saying that because the program is secret you can't know if you personally have been affected by it so you can't challenge it, which effectively puts all secret government programs beyond legal challenge, but the point here is that this program is now public and confirmed by the White House, so the standing issue shouldn't apply.

Judge Pauley did not issue a ruling, but said the hearing left him with a lot to think about. Meanwhile, Stuart Delery, the head of the Justice Department's Civil Division, said Judge Pauley should wait for the Supreme Court to rule on bulk data collection rather than try to resolve the matter on his own - just let it sit, let it wait until the Supreme Court gets around to the issue ... sometime. Which sounds very much like a man afraid he may well lose.

Whatever Judge Pauley rules, however that case ultimately turns out at the District Court level, it will be appealed, as of course Judge Leon's will be. And no matter what happens at the Appeals level, there is a good chance that both of these cases will wind up at the Supreme Court. So none of this good news is definitive and it may not last: We could still fall victim to the courts' historical, traditional, reluctance to challenge executive authority on so-called "national security" matters. In a number of ways, the Fourth Amendment is on life support as it is.

Still, what this does mean is that there is an increasing push, an increasing sense, that we have gone too far in surrendering our privacy and our rights for the chimera of supposed security, far enough, in fact, that Rep. James Sensenbrenner, the the man who was the primary author of the Patriot Act, the bill the NSA and White House claim legally justifies their spying, says he is shocked by their interpretation of the law and what the NSA is doing is illegal and unconstitutional. And that change in attitude is a very good thing.

And it's an especially, an exceptionally good thing, because a few weeks ago another revelation from what we might call "the Snowden papers" was that shortly before the leaks began, in February 2012, the NSA proposed a four-year mission strategy to enable the agency to acquire data from “anyone, anytime, anywhere” and eventually acquire all digital information available in the world.

The document talks about breaking all encryption, including by investing in the industrial base in order to control and direct technological development on a path suitable for the spooks and by using spies in companies abroad to decode their decryption tools.

The document also claims that existing US laws are not adequate to the spies' desires and set an objective of “aggressively pursu[ing] legal authorities and a policy framework mapped more fully to the information age.” Put more simply, the NSA wants more power, they think there are too many restrictions, that they're not free enough, the agency wants more power to spy anywhere, anytime, any way it wants and thinks that having to do dumb things like get a dumb warrant from some dumb court is just dumb and that dumb old Constitution is just dumb, so there.

I find it interesting and significant that we haven't heard too much of late from the NSA-sycophants like Diane Feinstein. It would be nice if their silence was due to embarrassment or better yet shame, but I think they're well past shame. But at least it means kissing up to the spooks doesn't look like a political winner now. And that is a good thing. Thank you, Edward Snowden.

By the way, as a footnote to that, you may recall I called Larry Klayman, the guy who brought the suit before Judge Leon, a flake. He is. He once sued his own mother, is closely affiliated with the birther movement, and thinks Obama is a Muslim. He's the guy who a little while back wanted Obama "to get up, to put the Quran down, to get up off his knees, and to figuratively come out with his hands up."

But there is an old and very wise saying: If it's the truth, what does it matter who says it?


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