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Breaking story, this afternoon...

N.S.A. Phone Surveillance Is Lawful, Federal Judge Rules
By MICHAEL S. SCHMIDT and ADAM LIPTAK
NY Times
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...

The 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."

Judge Pauley specifically noted, "...that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies."


...“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relevant statutes, understates the privacy implications of the government’s surveillance and misapplies a narrow and outdated precedent to read away core constitutional protections,” he said...

(Bold type is diarist's emphasis.)

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 Case
December 27, 2013

ACLU Intends to Appeal Decision Allowing Telephone Tracking

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

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 breaking NY Times' story continues on to mention the recent decision by Judge Leon...
...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.

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...

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..."

#            #            #

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.

From my post here on November 22nd

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..."

...8 Years Later, NSA Still Using Same PR Strategy to Hide Illegal Wiretap Program
Posted on November 21, 2013 by emptywheel (Marcy Wheeler)
Emptywheel.net

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…

(Bold type is diarist’s emphasis.)

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...

...language! LOL!

…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…

(Bold type is diarist's emphasis.)

#            #            #

You may donate to the American Civil Liberties Union by clicking upon THIS LINK.


#            #            #

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Comment Preferences

  •  This idiot judge obviously didn't think about ... (19+ / 0-)

    the fact that third parties also create and hold medical records.

    "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

    by Neuroptimalian on Fri Dec 27, 2013 at 12:15:52 PM PST

  •  In related news: (22+ / 0-)
    Grad student proves NSA can link metadata to your identity with ‘marginal effort’
    A Stanford graduate student has shown just how easily names can be matched with phone records, contradicting some of the legal justification offered by federal authorities for the National Security Agency’s bulk collection of phone data....

    ...“In under an hour, we were able to associate an individual or a business with 60 of the 100 numbers,” Mayer wrote. “When we added in our three initial sources, we were up to 73.”

    With a little more work, the story goes on, the student was able to get 91 of 100 phones number matched to names. And this was just using standard stuff on the internet like google and facebook.

    I imagine the NSA could do the same, but a lot quicker, if they wanted.

    * * * * * *
    On another note, I can no longer hear of anyone doing or saying anything in favor of the NSA without wondering, "Does the NSA have anything on them?"

    That's not my suspicious mind working over-time; that's the history of secret information gathering entities through all time. Including our own FBI & CIA. A person would need really extraordinary evidence to show that the NSA has somehow avoided the routine practices of decades and centuries.


    Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

    by Jim P on Fri Dec 27, 2013 at 12:29:08 PM PST

    •  Regarding your aside... (13+ / 0-)

      Absolutely. There's simply no excuse for being in support of these abusive surveillance-related activities, especially in light of all that we've come to learn about them since last June, thanks to Mr. Snowden.

      Anyone speaking favorably either has something to lose if they don't, or something to gain if they do, as far as I'm concerned.

      Black-and-white thinking?

      Yes.

      For me, nuance, on this issue, is dead.




      Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ J. Garcia

      by DeadHead on Fri Dec 27, 2013 at 01:02:18 PM PST

      [ Parent ]

      •  i miss the days (7+ / 0-)

        when people were at least afforded the courtesy of being accused of partisanship or honest self-delusion, without resorting to implications of financial gain or blackmail.  Simple honest disagreement went out the window a long time ago, of course.

        At least it's on record you have no interest in defending your own position, but I will say between you and the NSA, the only one suggesting I have anything to hide is . . . you.

        Where did you get my e-mails, bro?

        Difficult, difficult, lemon difficult.

        by Loge on Fri Dec 27, 2013 at 01:23:06 PM PST

        [ Parent ]

        •  I have absolutely no idea... (6+ / 0-)

          what you're going on about, or why you directed your comment to me.

          I merely concurred with the above commenter. Perhaps you should see what he thinks about it.




          Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ J. Garcia

          by DeadHead on Fri Dec 27, 2013 at 02:54:37 PM PST

          [ Parent ]

          •  no, you took it one step further (6+ / 0-)

            the above commenter merely presumes any defense of this ruling (as i have made) is the product of blackmail.   You said it's a definite, and that "the issue is dead," which is an odd thing to say on the day a district judge has made the issue very much alive.   If it's just hyperbole, as I suspected, well, you proved it.   If you're not willing to make this claim about a random individual, you're not willing to make it as a class; as such, poor you, you should probably defend your position with logic, even if -- especially if -- it's so damn obvious that it shouldn't be too hard.   The "above commenter" made a claim about his own opinion, which is uninteresting to me; you made a claim about the debate itself.  I'd suggest you're playing dumb, but I'm not sure it'd make a difference.

            Difficult, difficult, lemon difficult.

            by Loge on Fri Dec 27, 2013 at 04:52:45 PM PST

            [ Parent ]

            •  "The Topper". (2+ / 0-)
              Recommended by:
              duhban, fcvaguy

              If Hobby Lobby is against contraception, why does it buy its inventory from China, the country that limits the number of children by law?

              by Inland on Fri Dec 27, 2013 at 05:21:38 PM PST

              [ Parent ]

            •  Um, no. I didn't take it any further... (2+ / 0-)
              Recommended by:
              Ray Pensador, Jim P

              Here's what Jim P said:

              On another note, I can no longer hear of anyone doing or saying anything in favor of the NSA without wondering, "Does the NSA have anything on them?"
              That doesn't sound limited to this ruling to me.

              So yes, all I did was concur when I said this:

              For me, nuance, on this issue, is dead.
              "Issue" being the NSA.

              And I didn't say the "issue" itself was dead, as your misleading paraphrase of my words implies.

              Now, if you please, find someone else to irritate with your inane, word-twisting  "gotcha" attempts.

              Thank you.




              Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ J. Garcia

              by DeadHead on Fri Dec 27, 2013 at 06:35:49 PM PST

              [ Parent ]

              •  Not really, (4+ / 0-)
                Recommended by:
                Inland, Hey338Too, duhban, fcvaguy

                The subject of Jim P's sentence is "I," not the predicate nominative which you incorrectly, nae "misleadingly," bold.  As i explained the first time, he made a claim about Jim P only, you made a claim about others, indirectly including myself.  (Your "as far as im concerned" is an epistemic limitation, perhaps a concession you don't know what you're talking about, but it does not change the fact that the subject of the sentence shifted in your retelling / "concurring."). And if there's no "nuance" on the issue, discussion of it is dead, and the quality of discourse is what I was referring to in each comment that went swoosh through your ears - not the NSA so much but how we discuss it, the actually very interesting questions of how courts should deal with old precedents, changing technology, evolving understandings of privacy, and the legitimacy of unelected judges superseding the judgments of elected representatives on doctrines that require parsing what is or isn't "reasonable."

                My word-play is in service of a larger point, which is that you haven't earned the right to declare contrary arguments "dead," let alone to make conclusions about the people who hold them.  If you find it irritating, feel free to click close tab, or don't overstate your case in the first place.  I find your McCarthyism more obnoxious than my rhetoric could possibly be --  I disagree with you on this issue but I don't question that you hold your views sincerely and in good faith, nor do I question your right to comment consistent with site rules and community guidelines, in reply (or, as my autocorrect just serendipitously put it, ineptly) to whomever writes a comment that inspires you to respond.

                Namaste.

                Difficult, difficult, lemon difficult.

                by Loge on Fri Dec 27, 2013 at 07:28:05 PM PST

                [ Parent ]

                •  Good God (0+ / 0-)

                  For someone so interested in discussing the merits, you sure like to hyper-focus on a relatively inconsequential comment, don't you?

                  I never claimed any right to declare anything dead for anyone else other than myself.

                  Does that make sense to you?

                  Yet here you are, taking as personally-directed a comment of mine that did not mention anyone here, or even this website, whatsoever.

                  Here it is again, for your dwelling pleasure:

                  Regarding your aside...

                  Absolutely. There's simply no excuse for being in support of these abusive surveillance-related activities, especially in light of all that we've come to learn about them since last June, thanks to Mr. Snowden.

                  Anyone speaking favorably either has something to lose if they don't, or something to gain if they do, as far as I'm concerned.

                  Black-and-white thinking?

                  Yes.

                  For me, nuance, on this issue, is dead.

                  by DeadHead on Fri Dec 27, 2013 at 01:02:18 PM PST

                  I guess I can, upon rereading of my comment, see how you would've taken it personally — you have favorable things to say about the NSA, and you don't want to be discredited right out of the gate. Understandable.

                  As for my supposed "McCarthyism," it's a figment of your over-active imagination. I'm not demanding purity or agreement from you or anyone else here, which happens to be the extent of whatever essentially non-existent "influence" I have.

                  And since you took such a liking to my use of the phrase, I'll use it again:

                  As far as I'm concerned, you can blow kisses to the NSA as often and with as much passion as you so desire. I promise not to get in the way of your love affair with the surveillance state.

                  Bye bye.




                  Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ J. Garcia

                  by DeadHead on Sat Dec 28, 2013 at 12:30:09 AM PST

                  [ Parent ]

                  •  my, my. (0+ / 0-)

                    your mellow is really harshed.

                    Does one be silent by yelling about how silent one is?  The very posture of your post, and the accompanying ad hominems add an "and so should you" to the debate is dead argument.  Own up to it, dude.  You suggested anyone who disagrees with you is compromised and the position is illegitimate, so own up to that, too.  Or, make your case for itself and let the reaction to it be the reaction.  If you really were content to express your opinion, you needn't have replied, but no, you have more ambition than that, but where it falls apart is your argument as "sword" is fact, but as "shield" is opinion.  You doth protest too much.

                    I don't have particularly favorable things to say about the NSA, actually,  except "not so obviously unconstitutional as left-for-the-sake-of-left posturing presumes."  If that's going to be some "signifier," so be it.  But I think the best outcome is likely some continuation of (some) metadata collection with tighter oversight. (I think there are sound arguments to treat different types of metadata differently -- try some control-f and you can find discussion of the issues in those sub-discussions to which they are more directly germane.)  It's hard to "love" what I don't particularly care about, though.  If I believed it added up to anything deserving of the name surveillance state, perhaps that'd be different, but that's the issue, isn't it? Quite live, as noted in the first paragraph above, where i also discussed "the merits," albeit, however, to show how you find it easier to dodge those questions in favor of repeating the correctness of your own position with arguments that start out bullying and somehow get more and more hostile.

                    Now, is it the last word you want, or were your really done? Doth protest too much x2.

                    Difficult, difficult, lemon difficult.

                    by Loge on Sat Dec 28, 2013 at 07:00:56 AM PST

                    [ Parent ]

                    •  My "mellow" has harshed? (0+ / 0-)

                      Perhaps that's because you're irritating the fuck out of me.

                      But, I'm glad you liked my ad hominems.

                      You're dishonest word-twisting and demands for me to "own-up" to your mischaracterizations of my original comment deserved them.

                      Go troll someone else.




                      Somebody has to do something, and it's just incredibly pathetic that it has to be us. ~ J. Garcia

                      by DeadHead on Sun Dec 29, 2013 at 04:47:54 AM PST

                      [ Parent ]

                      •  Any "mischaracterization" (0+ / 0-)

                        was a function of trying to take your points (and their implications) somewhat seriously, and I explained why I think your statements mean what they do.  If you got "you're" own argument wrong, not my fault, but at minimum I don't think anything I said qualifies as trolling.  Leading with insults is not a recipe for universal acclaimation, so you'll have to settle for spirited debate, or else actually fucking off versus saying you will. If that's what you say will make you happier, do that.  Your actions say you like telling people off, though, so I won't apologize for helping.  Plus, you need the practice.

                        Difficult, difficult, lemon difficult.

                        by Loge on Sun Dec 29, 2013 at 07:43:51 AM PST

                        [ Parent ]

            •  Weird. Nothing about the NSA, (2+ / 0-)
              Recommended by:
              caul, DeadHead

              nothing about whether the information, might be, or could not be, used improperly, but attacks on a commenter. For what purpose?

              Do you think the commenter is a more important issue than the NSA's potential for corruption?


              Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

              by Jim P on Fri Dec 27, 2013 at 07:06:54 PM PST

              [ Parent ]

              •  No. (3+ / 0-)
                Recommended by:
                Hey338Too, duhban, fcvaguy

                Do you?  

                Your comment was directed at people outside of the NSA, and I discussed the merits of the ruling elsewhere in the thread.  Your poisoning of the well was the more immediate concern, as to you and to deadhead.  I'll discuss the issue with people who acknowledge there's something to discuss, and not to people who argue in the style of when did you stop beating your wife, which doesn't mean that style shouldn't be called out for what it is - not just disrespectful but fundamentally lazy.

                Difficult, difficult, lemon difficult.

                by Loge on Fri Dec 27, 2013 at 07:34:27 PM PST

                [ Parent ]

                •  You've made many curious projections (1+ / 0-)
                  Recommended by:
                  DeadHead

                  which, I'm afraid are properties of your own psyche.

                  Or is it just the "high horse" tactic combined with the "character attack"?

                  I'll give you 'poisoning the well' as a clever deployment of the phrase, but of course we are not in a court of law, we are in a court of public opinion.

                  From what I've seen and read, people don't trust anything official these days. Sorry if such disloyalty distresses you, but I figure I said what most readers think. As far as I know, that's neither a crime nor a dirty rhetorical trick.

                  When seeing a ruling, whose rationale defies known facts, logic, history, and just plain common-sense justice, it is something many people say to themselves, as I said aloud, in effect "There's something hinky here."

                  Although I'm quite prepared to believe you'd have noticed nothing peculiar, in this, or any other case where public figures break in the NSA's favor.

                  Of course, the history of the FBI, CIA, DEA, ...hell... ALL spy agencies everywhere since at least Elizabeth I shows intelligence is used corruptly. Again, I'm not sure of any extraordinary evidence that human nature or intelligence practices are suddenly different.

                  Even the NY Times Editorial Board notes

                  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.

                  Should the NY Times Editorial Board, and every one else just shut up because others work themselves into being offended by unpleasant considerations?

                  I think not. Rather, I think you'd like to talk about anything other than the widespread corruption the nation suffers. Doesn't make it go away, though.


                  Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

                  by Jim P on Fri Dec 27, 2013 at 10:13:09 PM PST

                  [ Parent ]

                  •  i specifically said downthread (1+ / 0-)
                    Recommended by:
                    fcvaguy

                    that the judge shouldn't have accepted the government's claims as wholly true on a motion to dismiss posture, but it was not necessary to the decision, given SCOTUS precedent and questions about judicial standing.  And I'm also not sure where the reasonable expectation of privacy exists in information that exists in a reverse-lookup.  Further, the rawstory link doesn't support your position, really, and certainly doesn't contradict the government's arguments -- the name isn't discoverable until such point as someone tries to deduce the name, which is to say, the use of the data after the computers do their thing and run their regressions is what could qualify as a search, not the collection and storage.  That's independent of whether there's a recognized privacy expectation in one's name in all cases, given that the very idea of a name is inherently social.  Refusing to examine the logic on your part doesn't make it illogical.

                    I haven't made any projections, beyond those you said you yourself make.  In fact, in my initial comment I spelled out a number of possibilities as to why someone might hold a position in good faith.

                    Difficult, difficult, lemon difficult.

                    by Loge on Sat Dec 28, 2013 at 06:26:08 AM PST

                    [ Parent ]

              •  In other words, (3+ / 0-)
                Recommended by:
                Hey338Too, duhban, fcvaguy

                for you, on this day, on this topic, the don't attack other commenters train has sailed.  Try again next time?

                Difficult, difficult, lemon difficult.

                by Loge on Fri Dec 27, 2013 at 07:40:11 PM PST

                [ Parent ]

                •  HaHaHaHaHa! But only YOU'VE attacked anyone. (1+ / 0-)
                  Recommended by:
                  DeadHead

                  I see my earlier suspicion about projection is on solid ground.

                  Goodbye. Like, forever.


                  Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

                  by Jim P on Fri Dec 27, 2013 at 10:15:05 PM PST

                  [ Parent ]

    •  Hey, Jim P, I could find that ... (2+ / 0-)
      Recommended by:
      duhban, fcvaguy

      ... information much quicker. It's called a reverse-telephone-number lookup. All you need is an internet connection and $15.

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting. On biblical prophesy: If you play the bible backwards, it says, "Paul is dead."

      by Tortmaster on Fri Dec 27, 2013 at 09:41:27 PM PST

      [ Parent ]

      •  So the Officials' claim that metadata (0+ / 0-)

        doesn't lead to specific names is just massive bullshit right out of the box. Mixed with the lies told to Congress, etc, we can be high-percentage certain that corruption is embedded in the system. Experience teaches that corruption spreads.

        Thanks for the confirmation.


        Actual Democrats: the surest, quickest, route to More Democrats. And actually addressing our various emergencies.

        by Jim P on Sat Dec 28, 2013 at 09:57:02 AM PST

        [ Parent ]

  •  Well, sure, anything is legal (19+ / 0-)

    as long as you write up some gigantic take away everyone's rights and throw 'patriot' in the title law.  :P

  •  Does anyone find it strange (5+ / 0-)

    that the Judge who said the NSA collection efforts might be unconstitutional was appointed by Bush, but that the Judge who says it is legal was appointed by Clinton?

  •  Slavery was also once legal. There are no (6+ / 0-)

    Constitutional protections. If the persons to whom we delegate legislative powers abuse human rights and that conflicts with our intent, then those legislators have to be removed.
    The Constitution is not self-enforcing. The ultimate enforcers are the people.

    The rule of law appeals to people who want to distance themselves from responsibility for the deprivation they inflict.

    Remember, Iraq was invaded and bombed to smithereens in the name of bringing them the rule of law.

    "In the name of the nation, and of the dollar, and of the rule of law shall you and your children be sacrificed."

    Obamacare at your fingertips: 1-800-318-2596; TTY: 1-855-889-4325

    by hannah on Fri Dec 27, 2013 at 12:41:42 PM PST

  •  Smith v. Maryland: the differing results (8+ / 0-)

    come from the fact that this judge followed USSC precedent, including the precedent where the USSC told lower courts to not guess that the USSC would overturn its own precedent.  Judge Leon declared that the USSC decision in Smith v. Maryland was outdated because smartphones or something.

    If Hobby Lobby is against contraception, why does it buy its inventory from China, the country that limits the number of children by law?

    by Inland on Fri Dec 27, 2013 at 12:57:32 PM PST

    •  Smith v. Maryland probably is outdated, (9+ / 0-)

      but the question is whether it can be distinguished.  I'm not sure it can.  Moreover, I think the intrusion on privacy is greater in the low tech world of a pen register where you have to have an idea about a specific person searched, versus the anonymity in the sheer vastness of the NSA data.  The arguments for intrusion are based on what the NSA might to with the data to find out more about a person, but that's an argument that supports the government's position that the mere gathering and storing numbers, or even running algorithms on them, is not a search until some number is individuated or further analyzed.  

      Which is more intrusive -- a car following you the whole time while you drive or a series of traffic cameras that cover each part of your route?  Or is there no difference?

      For all i know, the program is a big waste of time.  I'm just fed up with the self-righteousness on the extremes, and the bootstrapping that makes political conclusions (Obama is x) out of treating contested arguments as uncontestable (not limited to NSA stuff).  Under existing law, it's defensible, and so far, the recommendations of the board to look into it seem measured and reasonable, more so than argument by adjective/font.

      Difficult, difficult, lemon difficult.

      by Loge on Fri Dec 27, 2013 at 01:14:44 PM PST

      [ Parent ]

      •  I agree on this point: (7+ / 0-)
        Moreover, I think the intrusion on privacy is greater in the low tech world of a pen register where you have to have an idea about a specific person searched, versus the anonymity in the sheer vastness of the NSA data.
        The sheer vastness of the metadata program has less intrusion than the pen register directed at the specific phone.  So it's more likely constitutional.  

        It is, however, more likely to scare people into thinking that Skynet is coming, which is a question for the legislature to sort out.  To argue that a program is a diffuse and possible threat to everyone and anyone is precisely the sort of thing that legislatures can deal with.

        If Hobby Lobby is against contraception, why does it buy its inventory from China, the country that limits the number of children by law?

        by Inland on Fri Dec 27, 2013 at 01:28:36 PM PST

        [ Parent ]

        •  well, i think the Court should (6+ / 0-)

          find a way to distinguish among metadata -- phone records need not be treated the same as Internet searches or records of websites read.  To the extent the suit is about phone call records, it's Smith v. Maryland, case closed.  As more facts emerge about collection cookies and so forth, that can be a separate suit for another day.  

          But yes, criminal procedure laws protect against arbitrary, which is to say selective, intrusion.  This isn't that -- but it could be, if abused.  That makes it indeed a political question, then.  I'm not sure it was appropriate for Judge Pauley to say it's vital to national security at the motion to dismiss stage, though, and I wish I believed the legislature we have, not the one we want, can deal with this.  I've always regarded arguments about comparative competence of the branches to be empirical, transient, and contingent.  Obama has until someone less competent than him comes into office to fix the program and give it more rigorous oversight, but until then, I'm not worried.  (Why else even have elections, if institutional competence is a function of Constitutional design and operates on autopilot?  If I'm going to be accused of bias and hypocrisy, I might as well embrace the bias in a way the hypocrisy doesn't actually arise.  I'm only 80% serious in this argument, though.)  

          Further, even a party that doesn't agree not all administrations are created unequal doesn't by that fact derive arguments for Article III standing -- if we're about upholding the Constitution, what about the parts that say Courts can't issue advisory opinions?  I'm not sure the ACLU has a good argument that their interest is particularized versus political.

          At the same time, I have little patience with people who treat the entire idea of a national security justification as prima facie a subject for mockery.  It means the arguments fail as criticism of the court's decision, because that's a line of argument unavailable to it, given its obligations to the public writ large.  That doesn't mean always side for national security, it means at least read the briefs.

          Difficult, difficult, lemon difficult.

          by Loge on Fri Dec 27, 2013 at 01:46:46 PM PST

          [ Parent ]

          •  Privacy (0+ / 0-)

            Google spies on us 10 times more than the Federal Government does, imo. Google knows our browsing history, what we do on certain websites, who we're talking to, what we like and dislike, etc etc etc. So does Facebook and every social media company. What we do on the internet isn't private. Perhaps some day it will be. The issue here however, is should the Government be doing what Google is doing? The answer is probably not.

            •  and no judicial oversight . . . (1+ / 0-)
              Recommended by:
              fcvaguy

              it's sort of annoying in a way.  I have to search for information about a particular industry for work, and when I log on at home, i get web ads for those products and advertising for rival law firms seeking to represent me in suits against makes of those products.  If prospective employers or mortgage lenders believed i had a genuine personal interest in these products, well, they wouldn't like it.  

              Google of course reads e-mails, or rather, mines keywords from the content, and is much more intrusive in that regard.  

              Where it gets dicey -- and I have some experience in this -- is the use of big data in political campaigns.  Voting behavior is correlated with consumer behavior, but it ends up in the hands of people who get people into the political branches, and I'm not sure legislators want to give up the goose that lays the golden egg, the tools that make their fundraising e-mails mildly less inefficient and points their canvassers in the right direction (if they actually listen).  It's this experience, though, that showed me it's not just noise, but the power to collect and store data is matched by the greater power to aggregate and synthesize it.

              Difficult, difficult, lemon difficult.

              by Loge on Sat Dec 28, 2013 at 07:21:25 AM PST

              [ Parent ]

      •  I like your car/route example (1+ / 0-)
        Recommended by:
        Loge

        It all comes down to how absolute our 4th Amendment rights are. Do we have a right to privacy while driving down the road? or walking on the sidewalk? If we had surveillance cameras in NYC like they do in London (basically on every street corner, pointing in every direction), would some see that as a violation of Privacy?

        I think perspective on this issue has to do with age/generation. I think older people have always assumed there is no privacy on the internet and no privacy on the phone wires. Younger people make an assumption of privacy. I do believe however, over the long term, the debate is going to take us in the direction of more privacy when it comes to electronic communication.

        •  there's nothing absolute (1+ / 0-)
          Recommended by:
          fcvaguy

          the constitution protects against unreasonable searches and seizures, not against searches and seizures.  

          I don't like these cameras, as I've gotten tickets I genuinely believe an actual police officer wouldn't consider it worthwhile to stop me to give.  They are constitutional, though.

          I kind of think younger people are more likely to think there's no privacy, or at least, are less likely to act to keep information private.  

          I also think that as more business is transacted online, there'll be less privacy -- it raises a conceptual question.  When I'm online, do we look at the fact that I'm in my apartment by myself, or do we think of it as I'm out in a semi-public "space," with an infrastructure provided in many ways by the government and engaged in hundreds to thousands of subtle interactions with third parties (ad ware, etc.) the whole time, in the way one interacts with passersby at a mall?  As online behavior more closely approximates interpersonal interactions, it's less private, as the argument the NSA does nothing google and facebook don't already do, not to mention the phone companies who create the metadata by administering data networks, shows.

          The other argument is that what's a "reasonable expectation" of privacy derives less from the degree of privacy itself, but the value of the interest the privacy is supposed to serve in each instance -- space for self-development, protection against unequal application of the law, intrusion on property rights, what?  Here, i think the generational issue does cut in favor of broader privacy rights, because I think people just older than me (mid 30s) see privacy as a means to an end, and younger people who are more immersed in "Internet culture" see it as an end.  

          Difficult, difficult, lemon difficult.

          by Loge on Sat Dec 28, 2013 at 07:13:34 AM PST

          [ Parent ]

          •  London cameras (0+ / 0-)

            do more than give red light tickets. They are indeed for Total Information Awareness when it comes to street activity. They watch everything on the streets/sidwalks. Its exactly how they caught the subway bomber a few years ago. I don't think that type of system would ever pass muster in the US. Personally, I'm not opposed to them. Its had a notable effect on street crime in London.

            My perspective on the internet: its not private nor do I expect it to be. I agree with your analogy. When you're on the internet, you're on the public square. That said, I do indeed to do my banking on the internet only because my credit union guarantees my transactions are safe and that they will take personal responsibility for any hacking of my account etc that wasn't my fault.

            And frankly, I don't see a conversation on a blog as any different than a phone call between two people. They are functionally the same. The difference is that in a phone call, there is a presumption of privacy. Whereas on a blog, there isn't. Although, I think some people actually believe that what they are posting here is/should be private.

  •  This is why... (6+ / 0-)
    Recommended by:
    bobswern, blueoasis, poligirl, taonow, caul, fcvaguy

    ...the best way to combat the creeping totalitarianism is at the source.  Bring some daylight to bear on the collection of our data.  That would reduce the amount of data hoarding.  If less data are collected, then in turn, there is less for NSA and other snoops to look at.  Remember, NSA doesn't actually run the phone lines or internet.  They rely on private companies to collect the data, which they can then compel the companies to hand over.

    As we have seen, trying to contain NSA is futile.  It is also pointless as long as our data are being warehoused anywhere.  Think of NSA as a cockroach: they only show up if you leave food lying around, and the thing they hate most is sunlight.

    http://petitions.moveon.org/...

    The Wanderer, from somewhere over the Pacific...

    by Wanderer1961 on Fri Dec 27, 2013 at 01:03:24 PM PST

  •  It doesn't work (10+ / 0-)

    and there was no evidence it ever has.  Indeed, dismissing the complaints shows the judge was unwilling to see evidence one way or the other.  The Judge cites Judge Jackson repeatedly, but doesn't actually engage both part of the test: that while some infringement may be allowed to protect the county, some infringements violate the very rights we prize and aren't allowed.  Is anything the NSA does legal, since it purports to protect the country?  That, in effect, is what this opinion says.

    BTW, I agree with the tweet that says that any judicial opinion that begins with "On 9-11 . . . " is bound to be bad.

    "So listen, oh, Don't wait." Vampire Weekend.

    by Publius2008 on Fri Dec 27, 2013 at 01:06:30 PM PST

  •  Anything the govt does is legal because 9-11 and (5+ / 0-)

    9-11 and 9-11.
    I hope this part of the legacy he cares so effing much about turns into a millstone for Obama in future history (if there is any). He earned it.

  •  End the war man. Stop the war. Now is the time (8+ / 0-)

    for all good humans to come to the aid of other good humans.  

    "It is easier to pass through the eye of a needle then it is to be an honest politician."

    by BigAlinWashSt on Fri Dec 27, 2013 at 02:35:54 PM PST

  •  The judge is lying about the War OF Terror. (6+ / 0-)

    Therefore his entire judgment is a lie.

    "It is easier to pass through the eye of a needle then it is to be an honest politician."

    by BigAlinWashSt on Fri Dec 27, 2013 at 02:48:27 PM PST

  •  From Firedoglake: (8+ / 0-)

    http://dissenter.firedoglake.com/...

    The FBI, Drug Enforcement Agency, and law enforcement, along with the NSA, are collecting information on Americans and then using that information to arrest people. “Parallel construction” is then used to “fabricate evidence” that is substituted with evidence that is subsequently collected legally and through mechanisms that have traditionally been an accepted part of criminal investigations.

    In former senior NSA employee and whistleblower William Binney’s view, this is the “real problem.” It is occurring without a warrant and they can bring this information into court. He calls it the “planned program perjury policy right out of the Department of Justice.”

    But the judge who said the data collection was lawful was appointed by one of the "more and better Democrats," so it's all good.

    "There will be midterm elections in under a year. Do you know what might be savvy? To run on a Medicare For All platform..." -- Dan Fejes

    by Cassiodorus on Fri Dec 27, 2013 at 02:57:21 PM PST

    •  Dissent via Occupy Wall Street, and other... (8+ / 0-)

      ...forms of dissent, are considered criminal acts by our government, in FAR TOO MANY instances when that's CLEARLY not the case.

      The morphing of domestic surveillance, delivered up on a silver platter by the NSA, provides a most nefarious set of tools which it has now turned inward throughout America to "fight" THIS "crime."

      It's textbook/classic state-sponsored oppression, writ large...

      "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

      by bobswern on Fri Dec 27, 2013 at 03:22:25 PM PST

      [ Parent ]

  •  So much for "Change we can believe in." (7+ / 0-)

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