If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases

How a church, terror suspects, and some lawyers are pushing privacy on the legal front.

Read the whole story

 

[shanoboye]

And it'll be because ordinary Netizens FUNDED these cases by becoming card-carrying members of the Electronic Frontier Foundation and the American Civil Liberties Union. If YOU aren't a card-carrying member of both groups, what are you waiting for?

 

[coachmark2]

Just got my "unplug big brother" shirt yesterday. You can get one with a $65 donation to the EFF. Highly recommended as they look sweet.

Though I'm probably on some list somewhere for having ordered one....

 

[kriston]

coachmark2[/url]":5x79snkd]Though I'm probably on some list somewhere for having ordered one....

No doubt with an additional priority flag now for having suggested that others buy one too.

 

[kupfernigk]

If a legal opinion has to be kept secret, doesn't that imply that it cannot stand the light of day?

 

[BeanBagKing]

Legitimate question. Every state has wiretapping laws, these vary, but in general at least one, if not both parties have to be aware a conversation is being recorded. I, as a third party, can't just go and record the conversation of two random people.

But the government is essentially saying that that conversation is being disclosed to a third party already. Verizon, AT&T, whoever, and therefor they no longer have an expectation to privacy.

So why is it illegal for me to wiretap people then?

 

[deliciouswindow]

coachmark2[/url]":10z5ztlb]Just got my "unplug big brother" shirt yesterday. You can get one with a $65 donation to the EFF. Highly recommended as they look sweet.
Though I'm probably on some list somewhere for having ordered one....

That's 2000 thinking. The "special lists" are just database joins now. Everyone is tracked at maximum resolution all the time.

http://www.ted.com/talks/catherine_crum ... _about_you

 

[mad_magician]

I was going to write a long post about how frustrating the logical knots most judiciaries tie themselves in to justify allowing this to continue unabated.

I decided not to after realizing that it is just like my pre-school age kids.

You - "Don't eat food in the TV room!"
kid eats cookies in TV room
You - "why are you eating in the TV room?"
kid - "Cookies are a snack, not food!"
You - /facepalm

 

[mad_magician]

also interesting, based on a bit of quick Wikipedia reading that smith has a "two prong test"

This decision in Katz was later developed into the now commonly used two-prong test, adopted in Smith v. Maryland (1979),[44] for determining whether the Fourth Amendment is applicable in a given circumstance:[45][46]

a person "has exhibited an actual (subjective) expectation of privacy"; and
society is prepared to recognize that this expectation is (objectively) reasonable.

The second "prong" seems to have been ignored. without digging up the surveys, "society" seems to feel that cell phones, phone calls, call records and e-mail are "Private" and reasonably so.

 

[bluefox9]

I don't think these scumbags (because they exploit people's fear for activities that harm the country in the long run) can withstand a tide of public opinion against them. For that to happen, people's views need to update to reflect reality.

Whatever light that public interest organizations like EFF and ACLU have brought to these issues has helped, but it's not enough. We don't have a mainstream discourse on benefits and harms of surveillance state, even though it's one of the biggest issues of this generation. Moneyed interests that own major news outlets have skimped around the issue and glorified or vilified people instead of talking about the issue of state surveillance itself.

 

[Deleted member 1]

BeanBagKing[/url]":ceei8i9l]Legitimate question. Every state has wiretapping laws, these vary, but in general at least one, if not both parties have to be aware a conversation is being recorded. I, as a third party, can't just go and record the conversation of two random people.

But the government is essentially saying that that conversation is being disclosed to a third party already. Verizon, AT&T, whoever, and therefor they no longer have an expectation to privacy.

So why is it illegal for me to wiretap people then?

I think what you've actually disclosed to the phone company is your number and the number that you dialed, so that they could connect the call. The phone company isn't recording your calls. The issue is that the government can ask for the call records, the metadata of your calls, and get it without a warrant. The government has created a giant dragnet in the process. With a proper warrant, the cops can record your calls but they don't get the contents of your calls by default.

 

[Richard_M]

I would like to think that the Supreme Court would do the right thing in these cases but recent history has shown that counting on the Justices to do so is only opening yourself to heartbreak and disappointment. The two unanimous ruling do give some hope but not enough to be really optimistic about the outcome.

 

[iorcbyux]

Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

 

[Oldmanalex]

I think that all of the old legal assumptions have been done in by Moore's Law. I used to believe, and probably correctly, that if the government were stupid enough to collect all available data on its citizens, that the result would be severe informational constipation, which would be highly protective to most. However, with current storage and processing capacity, it seems quite probable to me that not only is all metadata collected and stored, but that all of the data is collected, and at the least temporarily stored before a preliminary parsing says it can be "safely" dumped. And once a flag is raised, it is all kept. One of the main weaknesses of this approach is that the parsing will be entirely electronic, and based on various key parameters, where any juxtapositions cause a flagging. Given the literal-mindedness of computers, the hurried nature of the searches, and the fear that much information will be coded in some way, probably 99.9% of what the dragnet pulls up will be chaff, but once something is flagged it probably requires a human intervention to unflag it. This assumes that there is a human available to do that, and furthermore that said human is considerably saner than an Angleton. With metadata being collected, I would be very interested to see some governmental metadata. How many US citizens/legal residents have been flagged at some time by this system, and what percentage of said citizens have later been taken off NSA lists on the grounds that they really should not have been on them at all if human intelligence (the real meaning of the word) had been applied to the signal? Lastly, how long does it take to flush the wrong cases on average?

 

[systemsready]

coachmark2[/url]":1u69ipdk]Just got my "unplug big brother" shirt yesterday. You can get one with a $65 donation to the EFF. Highly recommended as they look sweet.

Though I'm probably on some list somewhere for having ordered one....

Oh don't worry, IIRC they already glare more closely at people reading this site, too!

 

[potato44830]

iorcbyux[/url]":3cvvaxyk]Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

but the whole history of the country is the conflict between centralized federal government and local independence. kind of the point of the revolution in the first place - the King shouldnt have control of a nation he has no knowledge of. absentee landlordism tends to go sour.

marijuana laws are a good example. its a legal gray area, where theory says one thing and reality is that most people dont care about the federal law and basically ignore it en masse.

 

[ricopet]

dbright[/url]":3tl9cnfy]

iorcbyux[/url]":3tl9cnfy]Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

marijuana laws are a good example. its a legal gray area, where theory says one thing and reality is that most people dont care about the federal law and basically ignore it en masse.

That's called Gedogen in Dutch - the Netherlands is the country that invented that whole approach to marijuana laws (i.e., the law is on the books but nobody, not even the police, cares).

As for the rights of the states, they are free to regulate anything the federal government doesn't.

 

[potato44830]

Muhtorov's case is quite interesting.

The US government has no problem allying with Islamic terrorist organizations in the past, when it suited them. For example they supported the Pakistani state during the war of separation of East Pakistan and West Pakistan, even as Islamic terrorist groups were conducting mass executions in East Pakistan. That was the 1970s. Kissinger was there - the point was to appease China because China was Pakistan's ally. And China was the Soviet's enemy. So to win the cold war.... get cozy with the Islamic Jihadists.

Then there was the AFghan Soviet war, documented well in George Crile's book Charlie Wilsons War. Pakistan was basically an Islamic terrorist staging ground. The US poured money into it through Peshawar, working alongside the Saudis and others - even Israel was in on the game, according to the book.

Then there are the various modern alliances with Gulf dictators and princes, who are huge funders of Islamic terrorism. ISIL gets money and aid from somewhere, and its probably not their job at Starbucks. And on and on.


Uzbekistan is a dictatorship where slavery is still legal. They call it by other names but when you have people forced by the state, without any criminal convictions, to go pick cotton in the cotton fields, i dont know how you can call it anything else. There are some horrible stories from a UK Diplomat stationed in Uzbekistan, named Craig Murray. Massive abuses, police who routinely rape people, etc. etc. Of course, this dictatorship became our 'ally' since Uzbekistan had a nice leftover soviet air base right next to it's border with Afghanistan that we needed to move troops in and out during the GWOT.

Muhtorov is claiming innocence, but lets ask what happens if he was guilty? If he had simply been a CIA agent, and Obama had targeted the Uzbek state for 'regime change', then Muhtorov could have gotten payed big money and treated as a heroic freedom fighter. Maybe some congressman would pick up his cause, have photos of them shaking his hand in their office to show off to reporters.

If Muhtorov had gone to Syria or any of the other Arab Spring states to participate in revolution, then what would the government's place be? What if he had been in Lybia fighting against Khadaffi? Khadaffi turned from former terrorist who killed civilians on airlines, to "ally in the war on terror" overnight. Complete with fawning interview from David Frost (yes that one, who "bravely" stood up to Nixon, did a puff piece of the brutal dictator Khadaffi), Then, in the Arab Spring, Khadaffi became the Enemy again.

These international cases kind of make a mockery of the justice system. Somehow the 'realpolitik' of Kissinger echoes down through the years, polluting any idea of morality and proportionality that the justice system is theoretically founded on. War criminals and serial killers get to shake hands with the president, some cab driver who is suckered into ordering bomb parts by an undercover FBI agent gets decades in prison. Muhtorov, if guilty, would face punishment vastly out of proportion with what other who have committed similar "material support" have faced in the past. Because he picked the wrong place and wrong time to support terrorists. Shoulda waited 5 years, maybe then President Jeb Bush will be landing on an air base in Central Asia proclaiming "mission accomplished" after our troops have invaded Tashkent.


What does that have to do with NSA surveillance being used on his case? The NSA surveillance is a "force multiplier" in the legal cases brought by the government. Secret evidence, secret courts, secret proceedings, secret witnesses, and on and on. History tells us these things are Bad. They are aspects of tyranny that we were supposed to move away from starting with the Enlightenment and going forward. These 'little guy cases' build up case law where these Bad Things become accepted into the justice system. The cases get little attention in the media, and the judge or jury thinks its not a big deal, because its a small time crook. Where does that end up? The government will have so much power it can silence dissent.

It's already happened in the Drake case - they were using some of these smaller terrorism and national security cases as precedent to use secret evidence in his trial. But what was his case really about ? Not just him leaking info to a journalist - it was that he criticized an inferior technical solution that was very profitable for a select number of well connected government IT contractors, and their revolving door CEOs who move back and forth within the government and industry. This is very real and very dangerous corruption leading to an ineffective and inept government. Criticism of such abuses and inefficiencies is a vital part of democracy. If it becomes impossible to criticise national security failures, or bad decisions made by security agencies, all due to national security law, and with a legal precedent being set in these 'small cases', then national security will actually be harmed, and decreased, not improved.

 

[mad_magician]

iorcbyux[/url]":124nxj85]Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

The problem lies within a liberal (not the political leaning) interpretation of the supremacy clause vs the 10th amendment.

The supremacy clause was in theory designed to avoid the multi-headed monster syndrome of a highly tangled web of state laws. The 10th amendment was designed to limit what laws the federal govt can create.

I am not a legal scholar, but it would appear that the intent was that once a majority of states created similar laws, that the federal govt could standardize across states to simplify compliance. Also treaties (IL can't be at war with the UK, for example, or opt out of NAFTA). With that said, the states do NOT have to enforce laws that are in direct violation of the constitution, regardless, and the federal government can conversely squash any state law in violation to the constitution. (say California banning Islam and MT banning Christianity in violation of the First amendment).

I believe that the above example was the entire purpose of the amendment procedure in the constitution. If enough states wanted to make a law that ran afoul of the constitution, they were forced to get a supermajority of states on board, then it was the law of the land, outliers, get in line.

What seems to have happened in the last 200 years is an inversion, of sorts where states are only supreme when their laws conflict with other states (PA/NJ gun case recently) or they are trying to quash marriage equality or whatever social hotbutton issue of the day is.

 

[Vapur9]

iorcbyux[/url]":2gqihp5y]Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

The 10th Amendment says otherwise. If State law prohibits something that the Federal government does not, State law takes precedence. If the Federal government prohibits something not outlined in the Constitution, the laws of the State should take precedence (which has been a point of contention for a long time). This is why marijuana and gay marriage can be legalized State by State. The Federal government's purpose is to regulate interstate and international commerce, and not to have influence over intrastate laws and commerce; though, they do it all the time. Each State is supposed to be considered as sovereign.

 

[Midnitte]

This theory was codified most recently from a 1979 Supreme Court decision in Smith v. Maryland. In the case, the court found that individuals do not have an inherent privacy right to data that has already been disclosed to a third party. So with telecom data for instance, the government has posited that because a call from one person to another forcibly transits Verizon’s network, those two parties have already shared that data with Verizon. Therefore, the government argues, such data can't be private, and it’s OK to collect it.

So then since it can't be "private" yet we all expect it to be private, it should be expected to encrypt all of it, yes?

 

[Sobad]

kriston[/url]":3maowegl]

coachmark2[/url]":3maowegl]Though I'm probably on some list somewhere for having ordered one....

No doubt with an additional priority flag now for having suggested that others buy one too.

Amusing enough, the EFF website is blocked on our government network, just tried going there to look at the shirt...

 

[mexaly]

When the axe comes down, there will be a lot of angry, unemployed spooks.

 

[mexaly]

Sobad[/url]":3pr647ix]

kriston[/url]":3pr647ix]

coachmark2[/url]":3pr647ix]Though I'm probably on some list somewhere for having ordered one....

No doubt with an additional priority flag now for having suggested that others buy one too.

Amusing enough, the EFF website is blocked on our government network, just tried going there to look at the shirt...

Did you check to see where the block is?

 

[Lurkmaster423]

coachmark2[/url]":210nai9h]Just got my "unplug big brother" shirt yesterday. You can get one with a $65 donation to the EFF. Highly recommended as they look sweet.

Though I'm probably on some list somewhere for having ordered one....

Am I on a list for upvoting you?

Oh no...

 

[Sobad]

mexaly[/url]":2m329xwf]

Sobad[/url]":2m329xwf]

kriston[/url]":2m329xwf]

coachmark2[/url]":2m329xwf]Though I'm probably on some list somewhere for having ordered one....

No doubt with an additional priority flag now for having suggested that others buy one too.

Amusing enough, the EFF website is blocked on our government network, just tried going there to look at the shirt...

Did you check to see where the block is?

Within our network. It's not DNS driven either, looks like genuine web filtering.

 

[Some Idiot]

kupfernigk[/url]":2186i9ir]If a legal opinion has to be kept secret, doesn't that imply that it cannot stand the light of day?

Yup. Legal opinions should never be kept secret, especially when they directly impact on the public at large.

 

[Chemical Tribe]

The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President's exercise of this authority.

Ah, the ol' "Commander in Chief" bull shit argument, made infamous by Bush, and further abused by Obama.

 

[Pro Crastinator]

How was Klayman able to file a lawsuit the day after the Snowden leaks? Does it mean he had prior knowledge of the leaks?

Also why is Obama in the filing name almost like some sort of campaign flag?

Something is not quite right.

UPDATE - still hoping someone can tell me how Klayman was able to file the lawsuit one day after the leak. I guess prior knowledge then. Hope the movie or book clears it up.

 

[Pro Crastinator]

Great in depth article

 

[NickBII]

dbright[/url]":kpbx11gm]

iorcbyux[/url]":kpbx11gm]Any state law that contradicts either federal law or the federal constitution is void because federal law takes precedence over state law. States can't regulate the federal government - the feds regulate the states.

but the whole history of the country is the conflict between centralized federal government and local independence. kind of the point of the revolution in the first place - the King shouldnt have control of a nation he has no knowledge of. absentee landlordism tends to go sour.

One of the reasons I am very skeptical of groups that argue for decentralized power is that historically you can count on one hand the times the decentralized side was actually less evil then the Feds. The Confederacy, Jim Crow, etc. This is because it takes forever for the Feds to decide to do something, so the centralized Federal evil is likely to be beaten to the beating by decentralized State Evil.

marijuana laws are a good example. its a legal gray area, where theory says one thing and reality is that most people dont care about the federal law and basically ignore it en masse.

Under the US System the Feds have a lot of official powers, and in their purview (ie: the military, foreign policy) they are damn-near Supreme. But out of their purview they're quite weak, especially when the Supreme Court has five Justices who are skeptical of their powers on principle.

For example, they could technically arrest everyone who buys Marijuana in Colorado, and use the business records of those shops to track down weed tourists from all over the country. But if they tried they'd face the following huge-ass problems:

1) They don't have the money in the DEA budget for it. They don't have the prison-space. To do it they'd have to increase the DEA budget which would require one of three things to happen -- deficit spending (GOP says no), cuts to other programs (Dems say no), or tax hikes (GOP says no). There're very good reasons most drug war prisoners are held by states, rather then the Feds.

2) It would royally piss off the people of Washington State (not a swing state), and Colorado (which is). The next President would almost certainly be from the other party, and be elected on a platform of "Fuck the guy who arrested those poor people."

3) It would annoy people from other states who oppose Marijuana legalization, but still believe decentralization is a good thing. Which means that the Congress that authorized the budget increase also gets to lose.

 

[jonah]

"Authorization for specified electronic surveillance activities during a limited period to detect and prevent acts of terrorism within the United States."

A limited period? I guess if you define "limited" as "as long as we damn well feel like, but some amount of time less than infinity years"...

 

[Sphynx]

Did any legal authority ever explain how email, skype etc. was any different to snail-mail and if not, can the government now start opening your mail before it gets to you?

One wonders what would happen if everyone's snail-mail in the US arrived in their respective mailboxes pre-torn open. Pretty sure there'd be a quick resolution to the problem once and for all if that happened.

Hey, perhaps I can class myself as a hacker by opening up all my neighbours mail. I'll tell them i'm checking for any terror plots so that I can report it to the government and call myself a white-hat hacker instead...-.-

 

[sketchy9]

bothered[/url]":lo3859b0]

BeanBagKing[/url]":lo3859b0]Legitimate question. Every state has wiretapping laws, these vary, but in general at least one, if not both parties have to be aware a conversation is being recorded. I, as a third party, can't just go and record the conversation of two random people.

But the government is essentially saying that that conversation is being disclosed to a third party already. Verizon, AT&T, whoever, and therefor they no longer have an expectation to privacy.

So why is it illegal for me to wiretap people then?

I think what you've actually disclosed to the phone company is your number and the number that you dialed, so that they could connect the call. The phone company isn't recording your calls. The issue is that the government can ask for the call records, the metadata of your calls, and get it without a warrant. The government has created a giant dragnet in the process. With a proper warrant, the cops can record your calls but they don't get the contents of your calls by default.

That we know of.

 

[anarchyiscoming]

What does it matter what the supreme court does? The NSA operates above any laws and outside any regulations. It will be a nice dog and pony show to watch. But in the end nothing will change and Americans will go back to watching their reality tv and living with massive amounts of debt lying, to themselves about one day living the American dream.

 

[Sasparilla]

Some Idiot[/url]":3lmojm0t]

kupfernigk[/url]":3lmojm0t]If a legal opinion has to be kept secret, doesn't that imply that it cannot stand the light of day?

Yup. Legal opinions should never be kept secret, especially when they directly impact on the public at large.

Course that misses the point that the Senate, House and President just pushed through and signed the funding bill for the intelligence agencies in mid December that made this all legal - and few publications (including Ars for example) said a thing.

All this dancing for stuff that has been overtaken by recently signed legislation makes me wonder if it'll have any purpose (other than distraction) - since the new law would need to be challenged directly.

 

[psd]

shanoboye[/url]":3ngznb19]And it'll be because ordinary Netizens FUNDED these cases by becoming card-carrying members of the Electronic Frontier Foundation and the American Civil Liberties Union. If YOU aren't a card-carrying member of both groups, what are you waiting for?

A case that is based on actual harm or injury to someone as a result of data base queries on call meta-data?

 

[Doctor Nuke]

Nearly two years ago, the Supreme Court decided in a 5-4 decision that even groups that have substantial reasons to believe that their communications are being surveilled by government intelligence agencies—such as journalists, activists, and attorneys with contacts overseas—have no standing to sue the federal government. The reason? They can't prove that they have been actively surveilled. It's a major catch-22 since those who were being watched weren't exactly going to be told about the surveillance.

I feel that this is where a lot of the problems lay.

As a defendant, they are suppose to be allowed to see all the evidence against them if they are being charge and tried based on something acquired through the surveillance methods that are being kept quiet.

So is this what the government is basing its defense on? The fact that this is being kept hush-hush and that people can't prove anything seems to undermine a lot of what our judicial system is based on, or at least suppose to be.

 

[kindakrazy]

I believe the real basis for the government's justification of doing this is: "We wants to."

And even if the court rules against the government, which I personally believe to be unlikely [95-5], the government will pervert the implementation of the ruling, like specifically code the phone number of the person suing about being surveilled, so that any metadata for that specific phone number won't be gathered into their database, but everyone else's still will be.