Breaking story, this afternoon...
N.S.A. Phone Surveillance Is Lawful, Federal Judge RulesThe story continues on to inform readers, "Judge William H. Pauley III, of the United States District Court for the Southern District of New York, granted a motion filed by the federal government to dismiss a challenge to the program brought by the American Civil Liberties Union, which had tried to halt the program."
By MICHAEL S. SCHMIDT and ADAM LIPTAK
December 27, 2013 1:32PM ET
WASHINGTON — A federal judge in New York on Friday ruled that the National Security Agency’s program that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court...
Judge Pauley specifically noted, "...that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies."
(Bold type is diarist's emphasis.)
...“This blunt tool only works because it collects everything,” Judge Pauley said in the ruling. “While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds it is,” he added.
A spokesman for the Justice Department said, “We are pleased the court found the N.S.A.'s bulk telephony metadata collection program to be lawful.” He declined to comment further.
Jameel Jaffer, the A.C.L.U. deputy legal director, said the group intended to appeal. “We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” he said...
Related court documents, courtesy of the A.C.L.U., may be found HERE: "ACLU v. Clapper - Order Granting Government's Motion to Dismiss and Denying ACLU Motion for Preliminary Injunction."
Here's the A.C.L.U.'s statement:
Judge Grants Motion to Dismiss in NSA Surveillance CaseThe breaking NY Times' story continues on to mention the recent decision by Judge Leon...
December 27, 2013
ACLU Intends to Appeal Decision Allowing Telephone Tracking
FOR IMMEDIATE RELEASE
NEW YORK – A federal court issued an opinion and order in ACLU v. Clapper, the ACLU’s challenge to the constitutionality of the NSA’s mass call-tracking program, ruling that the government’s bulk collection of phone records is lawful under Section 215 of the Patriot Act and under the Fourth Amendment. The court denied the plaintiffs’ motion for a preliminary injunction and granted the government’s motion to dismiss the case. Judge Pauley’s ruling conflicts with last week’s ruling by a federal judge in Washington, D.C., that the mass call-tracking program violates the Fourth Amendment. The ACLU plans to appeal the ruling to the Second Circuit Court of Appeals.
The plaintiffs filed the lawsuit on June 11, 2013, less than a week after the mass call-tracking program was revealed by The Guardian newspaper based on documents obtained from NSA whistleblower Edward Snowden.
“We are extremely disappointed with this decision, which misinterprets the relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” said Jameel Jaffer, ACLU deputy legal director. “As another federal judge and the president’s own review group concluded last week, the National Security Agency’s bulk collection of telephony data constitutes a serious invasion of Americans’ privacy. We intend to appeal and look forward to making our case in the Second Circuit.”
...The ruling comes nearly two weeks after Judge Richard J. Leon of Federal District Court for the District of Columbia said the program most likely violated the Fourth Amendment. As part of that ruling, Judge Leon ordered the government to stop collecting data on two plaintiffs who brought the case against the government.The story reminds us that "...While Judge Leon ordered the government to stop collecting data on the two plaintiffs, he stayed the ruling, giving the government time to appeal the decision..."
In his ruling, Judge Leon said that the program “infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” which prohibits unreasonable searches and seizures...
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Up above, I've highlighted the following sentence by Judge Pauley, “This blunt tool only works because it collects everything." That's due to the greater reality that it's been widely discerned and otherwise directly reported by numerous, highly credible parties (including multiple NSA employees), both in recent weeks/months, and over the past 12 years, that the Telcos, the NSA and other members of the international "Five Eyes" program, enable and/or otherwise directly taps into telco/carrier servers and lines to capture the live call content of millions of Americans on a daily basis, even now.
In other words: "Everything" means "everything," and "metadata" means "everything," too.
Marcy Wheeler has been providing brilliant and downright historically significant commentary on the NSA story since long before the public ever heard the name, Edward Snowden. This week, as I've noted in comments in this community, she's to the point where she's outdoing herself, and proving beyond any doubt the she is, indeed, the person whom Newsweek refers to as: "The Woman Who Knows The NSA's Secrets..."(Bold type is diarist’s emphasis.)
...8 Years Later, NSA Still Using Same PR Strategy to Hide Illegal Wiretap Program
Posted on November 21, 2013 by emptywheel (Marcy Wheeler)
Between these two posts (one, two), I’ve shown that the Executive Branch never stopped illegally wiretapping Americans, even after the worst part of it got “shut down” after the March 2004 hospital confrontation. Instead, they got FISC to approve collection with certain rules, then violated the rules consistently. When that scheme was exposed with the transition between the Bush and Obama Administrations, the Executive adopted two new strategies to hide the illegal wiretapping. First, simply not counting how many Americans they were illegally wiretapping, thus avoiding explicit violation of 50 USC 1809(a)(2). And, starting just as the Executive was confessing to its illegal wiretapping, moving — and expanding it — overseas. Given that they’re collecting content, that is a violation in spirit, at least, of Section 704 of FISA Amendments Act, which requires a warrant for wiretapping an American overseas (the government probably says this doesn’t apply because GCHQ does much of the wiretapping).
One big discovery the Snowden leaks have shown us, then, is that the government has never really stopped Bush’s illegal wiretapping program.
That actually shows in the PR response the government has adopted, which has consisted of an affirmative and a negative approach. The affirmative approach emphasizes the programs — PATRIOT Act Section 215 and Section 702 of FAA — that paralleled the illegal wiretap program (I’m not conceding either is constitutional, but only the upstream collection under 702 has been deemed an explicit violation of the law). This has allowed the government to release a blizzard of documents — Transparency!™ — that reveals some shocking disclosures, without revealing the bigger illegal programs. But note how, when the revelations touched on the Internet dragnet (which should be no more revelatory than the phone dragnet), ODNI tried to obscure basic details by hiding dates (even if they left those dates in one URL).
Meanwhile, the I Con has invested energy in trying to undermine every story that touches on the larger illegal wiretapping programs. When WSJ reported that the NSA has access to 75% of the Internet traffic in the US, I Con released a misleading rebuttal. When, in the wake of a NYT report that NSA and GCHQ were using vastly expanded contact chaining (which we now know was initiated just as the illegal domestic program was being revealed) to produce dossiers on people, even inattentive members of Congress started asking about upstream collection and EO 12333 violations, top officials first distorted the questions then refused to answer them. When various outlets in Europe revealed how much spying NSA and GCHQ were doing on Europeans, the I Con unleashed their secret weapon, the “conjunction,” which succeeded in getting most National Security journalists to forget about GCHQ’s known, voracious collection…
While I’ve covered this story for almost two years, Marcy’s been relentlessly on it (and in extremely greater detail, I might add) far longer than that, and as recently as yesterday: “Coincidental Timing in NSA’s Telecom Switch Collection.”
The inconvenient truth is that the government’s rampant, domestic wiretapping of the public, at-large, has been virtually common knowledge--despite our government's lies and outright misdirection regarding same--for at least a decade…
NSA/gov't surveillance double-speak; it's a new...(Bold type is diarist's emphasis.)
…there are many ways in which the government captures our data...
Upstream collection, which is discussed (only in part, in this story, since the telco collection activity is all but ignored) in the story, local law enforcement (which implemented 1.3 million wiretaps, pen registers and track & trace requests in 2011, which we only know due to a slew of ACLU FOIA requests of local law enforcement entities; assumption is it's significantly increased since); and, via the Five Eyes' program[s], which include massive circumvention of their respective partners' national laws, wherein they collect their partners' data, accordingly.
The NSA has somewhere between 1,000 and 2,000 (depending upon what reports one reads) employees at GCHQ (in Great Britain, alone), and they ain't playin' tiddlywinks. They also maintain direct access to the NSA's PRISM platform there.
This has been going on for at least a decade...
...How Britain and the US Keep Watch on the World
By Phillip Knightley
Independent (via Global Policy Forum)
February 27, 2004
From the National Security Agency’s imposing headquarters at Fort Meade, Maryland, ringed by a double-chain fence topped by barbed wire with strands of electrified wire between them, America “bugs” the world. Nothing politically or militarily significant, whether mentioned in a telephone call, in a conversation in the office of the secretary general of the United Nations, Kofi Annan, or in a company fax or e-mail, escapes its attention.
Its computers – measured in acres occupied by them rather than simple figures – “vacuum the entire electromagnetic spectrum”, homing in on “key words” which may suggest something of interest to NSA customers is being conveyed. The NSA costs at least $3.5bn (£1.9bn) a year to run. It employs at least 20,000 officers (not counting the 100,000 servicemen and civilians around the world over whom it has control). Its shredders process 40 tons of paper a day.
Its junior partner is Britain’s Government Communications Headquarters (GCHQ) at Cheltenham, Gloucestershire, the eavesdropping organisation for which Katharine Gun worked. Like NSA, GCHQ is a highly secret operation. Until 1983, when one of its officers, Geoffrey Prime, was charged with spying for the Russians, the Government had refused to reveal what GCHQ’s real role was, no doubt because its operations in peacetime were without a legal basis. Its security is maintained by massive and deliberately intimidating security. Newspapers have been discouraged from mentioning it; a book by a former GCHQ officer, Jock Kane, was seized by Special Branch police officers and a still photograph of its headquarters was banned by the Independent Broadcasting Authority, leaving a blank screen during a World in Action programme. As with NSA, the size of GCHQ’s staff at Cheltenham, about 6,500, gives no real indication of its strength. It has monitoring stations in Cyprus, West Germany, and Australia and smaller ones elsewhere. Much of its overseas work is done by service personnel. Its budget is thought to be more than £300m a year. A large part of this is funded by the United States in return for the right to run NSA listening stations in Britain – Chicksands, Bedfordshire; Edzell, Scotland; Mentworth Hill, Harrogate; Brawdy, Wales – and on British territory around the world.
The collaboration between the two agencies offers many advantages to both. Not only does it make monitoring the globe easier, it solves tricky legal problems and is the basis of the Prime Minister’s statement yesterday that all Britain’s bugging is lawful. The two agencies simply swap each other’s dirty work. GCHQ eavesdrops on calls made by American citizens and the NSA monitors calls made by British citizens, thus allowing each government plausibly to deny it has tapped its own citizens’ calls, as they do. The NSA station at Menwith Hill intercepts all international telephone calls made from Britain and GCHQ has a list of American citizens whose phone conversations interest the NSA…
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You may donate to the American Civil Liberties Union by clicking upon THIS LINK.
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