http://news.yahoo.com/judge--nsa-spying-...13.htmlNSA Spying

ACLU v. Clapper Challenge to NSA Mass Call-Tracking Program

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The ACLU has filed a lawsuit challenging the constitutionality of the National Security Agency's mass collection of Americans' phone records. The complaint argues that the dragnet, justified by the Patriot Act's Section 215, violates the right of privacy protected by the Fourth Amendment as well as the First Amendment rights of free speech and association. The complaint also charges that the program exceeds the authority that Congress provided through the Patriot Act. The lawsuit seeks to end the mass domestic spying and have all of the collected data deleted. Oral argument on the ACLU's motion for a preliminary injunction and the government's motion to dismiss was held on November 22 in New York, and we are now awaiting the court's decision.
View all of the documents filed in the case>>
More on NSA surveillance, reform legislation, and other ACLU cases>>
On June 5, 2013, The Guardian revealed details of the NSA's domestic spying activities, including a secret order from the Foreign Intelligence Surveillance Court (FISC) to Verizon Business Network Services. The order required the company to turn over on "an ongoing daily basis" phone call details including whom calls are placed to and from, when those calls are made, and how long they last. This information, known as metadata, can reveal intimate details about our private lives. The order is part of an ongoing program that continues today. On June 11, the ACLU and NYCLU, both of which are current or recent Verizon Business customers, filed the lawsuit.
Because the NSA's aggregation of metadata constitutes an invasion of privacy and an unreasonable search, it is unconstitutional under the Fourth Amendment. The call-tracking program also violates the First Amendment, because it vacuums up sensitive information about associational and expressive activity.
The Patriot Act's Section 215 also known as the "business records" provision allows the FBI to obtain secret court orders from the FISC compelling third parties to produce "any tangible thing" that is "relevant" to foreign intelligence or terrorism investigations. In addition to the constitutional claims above, the lawsuit charges that the executive branch's use of Section 215 goes far beyond what the statute permits. Whatever Section 215's "relevance" requirement might allow, it does not permit the government to cast a seven-year dragnet sweeping up every phone call made or received by Americans.
The ACLU is also currently litigating a Freedom of Information Act lawsuit seeking documents on the government's legal interpretation and use of Section 215, and has also filed a motion with the FISC asking it to release its secret opinions authorizing the NSA program.
The ACLU's 2008 lawsuit challenging the constitutionality of the FISA Amendments Act, which authorized the so-called "warrantless wiretapping program," was dismissed 54 by the Supreme Court in February 2013 on the grounds that the plaintiffs could not prove that they had been monitored. The ACLU does not believe the issue of standing to be a problem in ACLU v. Clapper because of the FISC order showing that the NSA is collecting the telephone records of all Verizon Business customers including the ACLU.
https://www.aclu.org/national-security/a...l-tracking

Edward Snowden says judge's ruling vindicates NSA surveillance disclosures

NSA whistleblower welcomes Judge Richard Leon's ruling
'Programs would not withstand constitutional challenge'
Judge: phone surveillance program likely unconstitutional

• Dan Roberts and Spencer Ackerman in Washington
  
• theguardian.com, Monday 16 December 2013 21.20 GMT
  
• Jump to comments (126)
  

Edward Snowden in Moscow. 'The the American public deserves a chance to see these issues determined by open court.' Photograph: Sunshinepress/Getty Images

Edward Snowden, the former security contractor who leaked a trove of National Security Agency documents, welcomed a court ruling on Monday that declared the bulk collection of Americans' telephone records to be a likely violation of the US constitution.
Snowden said the ruling, by a US district judge, justified his disclosures. "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," he said in comments released through Glenn Greenwald, the former Guardian journalist who received the documents from Snowden.
"Today, a secret program authorised by a secret court was, when exposed to the light of day, found to violate Americans' rights. It is the first of many," said Snowden, whose statement was first reported by the New York Times.
Judge Richard Leon declared that the mass collection of so-called metadata probably violates the fourth amendment, relating to unreasonable searches and seizures, and was "almost Orwellian" in its scope.
He also expressed doubt about the central rationale for the program cited by the NSA: that it is necessary for preventing terrorist attacks. "The government does not cite a single case in which analysis of the NSA's bulk metadata collection actually stopped an imminent terrorist attack," wrote Leon, a US district judge in the District of Columbia.
"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."
Leon granted a preliminary injunction sought by plaintiffs Larry Klayman and Charles Strange, concluding that their constitutional challenge was likely to be successful. In what was the only comfort to the NSA in a stinging judgment, he put the ruling on hold, pending an appeal by the government.
Senator Mark Udall, a leading critic of the dragnet collection, welcomed the judgment. "The ruling underscores what I have argued for years: [that] the bulk collection of Americans' phone records conflicts with Americans' privacy rights under the US constitution and has failed to make us safer," said Udall, a Democrat.
Senator Ron Wyden, another NSA critic, also welcomed the ruling. "Judge Leon's ruling hits the nail on the head. It makes clear that bulk phone records collection is intrusive digital surveillance and not simply inoffensive data collection as some have said."
He went on: "Significantly, the judge also noted that he had serious doubts about the efficacy of the program.' The reason that he and many others have these doubts is that the executive branch's claims about this program's effectiveness are now crumbling under public scrutiny. Protecting the country from terrorism is obviously vitally important but the government can do this without collecting the phone records of massive numbers of law-abiding men, women and children."
At the White House, spokesman Jay Carney said he had no comment on the on the case, saying he had not heard of the decision when the press briefing started and referred reporters to the Justice Department for reaction.
"We've seen the opinion and are studying it. We believe the program is constitutional as previous judges have found. We have no further comment at this time," said Justice Department spokesman Andrew Ames.

While this is a great victory, I fear it may be short-lived. It probably will survive until it gets to the Supreme Court, which I would expect to in some way reverse it and allow the 'government' do what it feels it needs to for reasons of 'National Security'. The Supreme Court was not packed for nothing, after all. Even were the Supreme Court to rule in favor [something I think not likely], when you have a secret program [actually programs through other intelligence agencies, as well], and who's to say (or know) if they ever stopped - as all is classified and secret...they would just say they stopped but not stop ::. The growing and already HUGE surveillance police-state will not so easily be curbed by legal means - they operate outside of the law - sometimes giving lip service to it. Obama and his spokespeople have a bit of a juggling act to do now....but it is all Kabuki theater.....the real 'show' of electronic eavesdropping on everyone, everywhere will sadly go on. Only a completely new form of governance, starting with the USA and UK] and a scrapping of the current one, worldwide, will change this, IMHO. ::bowtie:: The Beast is not dead, not even much wounded....it has been pricked by a pin and will now react both overtly and covertly....and of course with lots of propaganda. Perhaps they'll even roll out yet another Newer New 'Pearl Harbor'.

A judge has reversed the decision (surprise surprise):



http://www.usatoday.com/story/news/natio...e/4219055/

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Judge Defends Government Secrecy & Dismisses ACLU Lawsuit Challenging NSA Surveillance Program

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A federal judge on the United States District Court for the Southern District of New York has ruled in a lawsuit filed by the American Civil Liberties Union that the National Security Agency's bulk data collection of Americans' phone records is "lawful" and not unconstitutional.
The ruling comes just over a week after another federal judge ruled in a similar lawsuit that the surveillance program violates Americans' privacy rights and James Madison, one of America's founding fathers, would be "aghast" if he was alive to see this program.
Judge William H. Pauley, appointed by President Bill Clinton, did find that the ACLU had standing. The ACLU had not had been granted standing in its case against dragnet warrantless NSA surveillance before the Supreme Court and the lawsuit was dismissed. However, Pauley found that Congress had precluded challenges to the provision of the PATRIOT Act known as section 215, which the government has claimed grants the power to indiscriminately collect Americans' phone records from telecommunications companies. He also did not find the constitutional claims argued by the ACLU had any merit.
"Allowing any challenge to a section 215 order by anyone other than a recipient would undermine the government's vital interest in keeping the details of its metadata collection program secret," he wrote in his decision. "It would alsobecause of the scope of the programallow virtually any telephone subscriber to challenge a section 215 order." Congress "intended to preclude statutory causes of action."
Pauley found that "tangible items"which the NSA believes it is permitted to collect under section 215are "relevant" if they "bear on or could reasonably lead to other matter that could bear on the investigation." (It would be difficult to conjure a more broad definition of "relevant," though one knows there are government lawyers in the Justice Department whose job it is to further expand the limits traditionally imposed by the word "relevant.")
As for the constitutional claims, the judge determined, "Without additional legal justificationsubject to rigorous minimization proceduresthe NSA cannot even query the telephone metadata database."
When the NSA makes a query, "it only learns the telephony metadata of the telephone numbers within three hops' of the seed.'" Without resorting to any other techniques the government "does not know who any of the telephone numbers belong to." It does not know who subscribes to telephone numbers A or B.
Furthermore, the government "repudiates any notion that it conducts the type of data mining the ACLU warns about in its parade of horribles." The precedent of Smith v. Maryland, from over three decades ago, still holds.
"The fact that there are more calls placed doesn't undermine the Supreme Court's finding that a person has no subjective expectation of privacy in telephony metadata," Pauley found.
As far as the First Amendment, Pauley wrote that "any alleged chilling effect here arises from the ACLU's speculative fear that the government will review telephony metadata related to the ACLU's telephone calls."
Even if the ACLU could prove it had statutory or constitutional claims with merit, the judge decided this would "cause increased risk to national security and the safety of the American public."
The judge accepted everything the government said about the efficacy and value of the bulk data collection program. It "cannot be seriously disputed," the judge wrote. He cited the cases of Najibullah Zazi, Khalid Oazzani, and David Headley. He also believed the NSA claim that before the 9/11 attacks the NSA could not "connect the dots" to prevent attacks.
But, perhaps, what most stood out was what Pauley wrote about how the ACLU had found out about the government's collection of telephony metadata.
It is the kind of argument that Alan Dershowitz or Jeffrey Toobin will likely be heard championing in the next weeks as they condemn journalist Glenn Greenwald for continuing to stand up for his source.
Essentially, if a journalist finds publishes unauthorized disclosures or leaks in a news story and the lawsuit would fail without that information, the judge is suggesting the lawsuit should probably be dismissed. The secrecy is more important than what was revealed and so too is the criminality of the leaker or whistleblower, the fact that he or she had to violate a law in order to release key information that was in the public interest.
Justin Elliott and Theodoric Meyer clearly demonstrated in an article for ProPublica, which was cited in the decision that found this same program "likely unconstitutional" last week, that claims of thwarted terrorist attacks by the NSA lack evidence:
The truth is that no imminent terrorist attacks have been stopped by the NSA's bulk data collection program. It could potentially stop terrorist attacks and that is what the NSA is fighting to preservea program that has not made a demonstrable contribution to national security yet indiscriminately collects the personal data of Americans.
Pauley also seems to have completely swallowed all of the bogus claims the NSA and its defenders, like Senator Dianne Feinstein and Rep. Mike Rogers, have made to try and tamp down outrage at what Snowden revealed.
As NSA whistleblower Bill Binney told me recently, "The phone number is your identity. Just do a reverse look-up and you get everything you'd want to knowyour address, your name and everything." You get "people associated with you. You get all this information."
The NSA gets the date of the call, the duration and the location where the call was made. "That means they can know your own social network, all your day to day activities and track all your movements where you go. That's considerable knowledge about an individual's life."
What is clear from Pauley's ruling is that it is more concerned with shielding the national security state from challenge than it is in properly examining critical questions that stem from protecting privacy rights.
For example, this paragraph from the decision:
Such cheerleading about how a program is a "counter-punch" is what one would expect from someone who has allowed themselves to become a devout believer in the national security state. It puts government interests in continuing surveillance ahead of the privacy interests of Americans. And it helps give the government even greater immunity from challenges brought by citizens.
http://dissenter.firedoglake.com/2013/12...e-program/

It was to be expected. The first judge's ruling, while sane and 'legal', is an offlyer - as he is not been properly propagandized by the system. The second judge even cites the official version of 9-11 as part of his rationale for the NSA spying to be OK.....not gonna get into the total lack of logic and jurisprudence in that horrible, but predictable, decision. I believe it still can be appealed and will likely go back and forth...but the Supreme Court is a nightmare court...so it will be difficult to win there. America never was much of a Land of Justice...but it did occasionally have some. Now, it is very very rare, indeed. It is part and parcel of the End of Empire and the total control of the insanity and corruption of all aspects of life. Very sad. It will take the People somehow awakening the Sheeple to do something...the wheels of governance, which they 'rely upon' while they go about their McLives are rusted shut and even running backwards now.:: One step forward, two back.... onward::noblesteed::...there are windmills to tilt at!

So Obama is not going to do any signing statements like Bush did to correct this?

Possible grounds for a challenge?

Quote:

Ruling In Favor Of NSA's Program Relied On Claims In 9/11 Report That Aren't Actually In That Report

from the judicial-misconduct dept

The more people look at the ruling last week by Judge William Pauley saying that the NSA's bulk metadata collection is legal, the more perplexed they become. We noted multiple problems with the ruling last week, but at almost every turn is evidence that Judge Pauley not only came into the court with his decision already set, but that he took the government's claims at face value, even when they were flat-out factually incorrect -- and which could have been easily checked. We already noted that Pauley's argument that 9/11 could have been prevented with such a metadata collection had been widely debunked, but it's worse than that. Pauley's ruling cites the 9/11 Commission report for this particular argument. There's a big problem with that. The 9/11 Commission report doesn't even mention the story that Judge Pauley claims is in the report.

As we've discussed in the past, the NSA and its defenders keep pointing to the story of Khalid al-Mihdhar, a terrorist who was in San Diego and made a call to a known Al Qaeda safe house in Yemen. Except, as was widely reported, the intelligence community had collected all the necessary info and was even intercepting calls between the US and the safe house. The problems was that the CIA "lost" al-Mihdhar, didn't tell the FBI that he was in the US (even though it knew he'd received a Visa) and no one put him on a watch list. None of that would have changed with the metadata collection.

However, as Pro Publica notes, not only does Judge Pauley ignore all of this, he claims the 9/11 Commission report talks about the NSA being unable to "capture al-Mihdhar's telephone number identifier" -- but that's not true:

In fact, the 9/11 Commission report does not detail the NSA's intercepts of calls between al-Mihdhar and Yemen. As the executive director of the commission told us over the summer, "We could not, because the information was so highly classified publicly detail the nature of or limits on NSA monitoring of telephone or email communications."

So when you have a judge using this as a key part of his ruling, and it appears that he simply did not read the report he's citing, but rather accepted the government's misrepresentation of the report, it should call into question what Judge Pauley was doing with this case. Others are noticing this same thing. The NY Times has an editorial, noting that Pauley's reasoning is "perplexing" in that it assumes that the government never breaks the law:

Judge Pauley's opinion is perplexing in its near-total acceptance of the claim by the government that it almost always acts in accordance with the law and quickly self-corrects when it does not. For example, Judge Pauley said the N.S.A.'s director, Gen. Keith Alexander, was being "crystal clear" when he responded to charges that the agency was mining data from phone calls by saying: "We're not authorized to do it. We aren't doing it."

That shows an alarming lack of skepticism, particularly in light of the testimony of James Clapper Jr., the director of national intelligence, who falsely told the Senate Intelligence Committee in March that the N.S.A. was not collecting any type of data at all on hundreds of millions of Americans.

It is also incorrect to say, as Judge Pauley does, that there is "no evidence" that the government has used the phone data for anything other than terrorism investigations. An inspector general's report in September revealed at least a dozen instances in which government employees used the databases for personal purposes.

Over at the New Yorker, Amy Davidson, goes even deeper in exploring the differences between Judge Pauley's ruling and Judge Leon's ruling (which found the NSA's metadata collection unconstitutional), and has pointed out multiple other "perplexing" elements in Pauley's ruling -- including the idea that the more completely the NSA spies on Americans, the more legal the program would be under his bizarre legal interpretation.

And yet if Pauley's opinion offers a single instruction for the N.S.A, it is this: go big. The more people whose data was swept up, the less this judge apparently thinks he has to say about it. Reading his fifty-four-page opinion, one wonders whether, if the intelligence community could only find a way to violate every single American's rights, and tell a story about how that protected them, he would look around and find that no one had been hurt. "This blunt tool only works because it collects everything," he writes.

And yet, "collect everything" is exactly what the 4th Amendment was designed to not allow. It was put in place to end the concept of general warrants for the collection of everything. It's this very concept of "collect everything" that is why Judge Leon noted that the "third party doctrine" as established in Smith v. Maryland makes no sense to apply to this bulk metadata collection.

Furthermore, Davidson also notes how Pauley uncritically accepts the feds' blatantly misleading spin that even with all the metadata collection only a very small number of people are spied upon. Judge Leon actually breaks it down and does the math, while Pauley doesn't bother:

The contrast can be seen in the two judges' responses to the way the government queries its database of phone recordsthose of almost every American. It starts with a "seed"maybe a phone number of someone it suspects (and only suspects) is connected to a foreign terrorist group. It then makes three "hops": looks at all the numbers that the seed number has called or been called by, each number that those have been connected to, and each that those have been connected to. Leon does some calculations and sees that the number of phone numbers gets big very quickly (if you call a hundred friends, and they each call a hundred friends…). They also get attenuated: he cites the example of a suspect calling a pizza place, and the way every other pizza orderer is then inveigled. (I wrote about this "Domino's hypothetical" when Judge Leon's ruling was issued.) But just as interesting was Leon's response to the government's note that it has done this with three hundred seeds, yielding a number of American phone records "substantially larger than 300, but is still a very small percentage of the total volume of metadata records."

The first part of this assertion is a glaring understatement, while the second part is virtually meaningless when placed in context…. It belabors the obvious to note that even a few million phone numbers is "a very small percentage of the total volume of metadata records" if the Government has collected metadata records on hundreds of millions of phone numbers.

Pauley, looking at the same statement, repeats it primly and uncritically twice: "only a very small percentage of metadata records…' " He is just relieved that terrorists, or those connected to them even by "filaments," might be found. (Last week, a Presidential review panel found that the program was not, in fact, all that useful.)

So there are huge problems with Pauley's decision. Not only does he quote a report that doesn't say what he claims it says, he further supports his argument by accepting a claim that another judge quickly showed to be clearly false just by doing some simple math. So far, we've got Judge Pauley failing to actually read or do math but simply accepting the government's claims of what the report and the math say, when anyone who's actually looked at either know the government is not being honest.

You would think that a judge would actually review the source material, rather than accept one party's misrepresentations. Unfortunately, Judge Pauley appears to have failed in his job to do the most basic checking of what he was told. And, because of that, we now have a horrible ruling on the books.

http://www.techdirt.com/articles/2013123...does.shtml