NSA Phone Snooping Cannot Be Challenged in Court, Feds Say

[think]

Source: Wired.com

By David Kravets
07.19.13 - 1:25 PM

The Obama administration for the first time responded to a Spygate lawsuit, telling a federal judge the wholesale vacuuming up of all phone-call metadata in the United States is in the “public interest,” does not breach the constitutional rights of Americans and cannot be challenged in a court of law.

Thursday’s response marks the first time the administration has officially answered one of at least four lawsuits challenging the constitutionality of a secret U.S. snooping program the Guardian newspaper disclosed last month. The administration’s filing sets the stage for what is to be a lengthy legal odyssey — one likely to outlive the Obama presidency — that will define the privacy rights of Americans for years to come.

The New York federal district court lawsuit, brought by the American Civil Liberties Union, demands a federal judge immediately halt the spy program the civil rights group labeled as “one of the largest surveillance efforts ever launched by a democratic government.”

The Guardian last month posted a leaked copy of a top secret Foreign Intelligence Surveillance Court opinion requiring Verizon Business to provide the National Security Agency the phone numbers of both parties involved in all calls, the International Mobile Subscriber Identity (IMSI) number for mobile callers, calling card numbers used in the call, and the time and duration of the calls...

Read more: http://www.wired.com/threatlevel/2013/07/spygate-snooping-standing/

[wtmusic]

1. Above the law...

is no one.

[Cryptoad]

24. To be chanllenged in court

it must be an illegal act. What law has been violated by the collection of this data.?

[wtmusic]

26. Why the 4th Amendment to the U.S. Constitution, of course.

[Cryptoad]

31. Collecting Data and Searching

data are two different thingys.. there is not a violation of the 4th amend by the collection data.

[wtmusic]

36. If you say so, Ace.

Do you have any judicial precedents to offer or are you just flying off the cuff?

Most decisions depend on a reasonable expectation of privacy which has been interpreted various ways but it could certainly apply here.

http://en.wikipedia.org/wiki/Reasonable_expectation_of_privacy

For example: is the postal service entitled to open and read your mail? Another type of data collection, it's also been expressly prohibited by a judicial decision handed down in 1877.

There's a little more to it than you think.

[Cryptoad]

41. YOur point reinforces

Your point reinforces exactly what i said,,,, No letters can not be read without a court issued warrant.
same applies to this meta phone data. it can not be read without a court issued warrant. Collection of the meta phone data. You seem to confuse the act of searching and reading data with the act of collecting data. Two very different things.

btw,,, smart ass remarks like calling me "ace" add nothing to the conversation except a reflection of your values.

[wtmusic]

65. Not sure where you're getting your information but it's not accurate.

NSA spying flap extends to contents of U.S. phone calls

"The National Security Agency has acknowledged in a new classified briefing that it does not need court authorization to listen to domestic phone calls, a participant in the briefing said.

Rep. Jerrold Nadler, a New York Democrat, disclosed on Thursday that during a secret briefing to members of Congress, he was told that the contents of a phone call could be accessed "simply based on an analyst deciding that."

If the NSA wants "to listen to the phone," an analyst's decision is sufficient, without any other legal authorization required, Nadler said he learned. "I was rather startled," said Nadler, an attorney and congressman who serves on the House Judiciary committee. "

http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-flap-extends-to-contents-of-u.s-phone-calls/

I apologize for "Ace" comment - out of line.

[karynnj]

62. Wrong analog - this would be like the post office saving the return address and the to address

and maybe the weight of the letter.

The equivalent to reading the mail would be recording the call itself - which is not done.

[wtmusic]

66. .

http://www.democraticunderground.com/?com=view_post&forum=1014&pid=543345

[thefool_wa]

40. You are mistaken

By this logic the government should be able to come into your home and take pictures of everything then store them in an archive in case they ever need them to prosecute you for crimes you may one day commit.

If you think this is OK, then you are part of the problem.

[Cryptoad]

42. NO,,,, there is no logic that could

connect collection of phone meta data with a invasion of your house. This data has never belonged to you. It was originally collected by the phone companies. their collection is no more a violation of your rights that the government collecting it.....now on the other hand you could draw that conclusion of yours if the government was searching your meta data and storing it by use of searches without a warrant.

[JDPriestly]

56. There is no decision regarding the massive, invasive collection of data on the scale that the NSA

is now doing it. The case law deals with specific cases that are criminal investigations. This is something new and different.

And the capacity of computers today to organize and filter and see patterns in metadata, to my knowledge, has not been dealt with in the courts. So I don't think you can say that this kind of collection of metadata is constitutional.

The collection of a pen register in the context of a criminal investigation has been deemed constitutional. But this surveillance is totally different.

If you listened to the congressional hearing the other day, Congress is quite aghast over what is going on. If a member of Congress calls a donor, the NSA knows who was called, how long they talked and who the donor and those the donor communicates with also called. That is overly intrusive. That is incompatible with democracy.

[Cryptoad]

58. Two things

Until the courts say it is Unconstitutional , it is only you opinion to which you are indeed entitled to, but it is just an opinion not Law.

You are equating all this meta data being collected with the government knowing what is contained within the collection. The knowledge on what inside the data only happens when a search takes places. Collection and Searching is "apples and oranges".

[JoeyT]

33. Being challenged in court is what determines if it is an illegal act.

So refusing to let it be challenged is awfully fucking convenient for those that want this to remain legal.

[Cryptoad]

35. I think you are reading more into it than there is

they are not saying that you can't go to court with the suit ,,,, rather any challenge can not stand up in court.

[JDPriestly]

57. I think the administration's view is that a court cannot even consider it because it is protected

by the bar to considerations of cases endangering national security.

I think that the executive branch is way overstepping the authority granted to it by the Constitution in this case.

This is an unprecedented violation of one's right to associate, speak, worship and petition the government under the First Amendment.

What point is there in collecting data on a person like me unless the government wants to influence me? It's a total waste.

[Cryptoad]

59. The Meta Data collected is archieved so it can be search by warrant at a later date.

Lets assume the government ten years from now learn that a known terrorist was using a certain phone number in 2013. A warrant could then be attained to search thru the data for 2013 and see who called this number and what people were call by this number of teh terrorist. If the Government does not save this Meta DAta it is lost forever.

[wtmusic]

67. The mere act of collecting information is prohibited under the Wiretap Act.

&quot 1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
...
shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5)."

http://www.law.cornell.edu/uscode/text/18/2511

Note that interception does not require reading or any other kind of interpretation.

[blkmusclmachine]

44. +1.

[limpyhobbler]

53. And yet magically we can't know if it is illegal, because nobody can challenge it in court...

Sweet system dude.

[Cryptoad]

60. Nobody has said you can't petition the courts about the legality of this . nt

[limpyhobbler]

63. Are you joking? Cases have been rejected for lack of standing.

[JDPriestly]

55. It just has to be alleged to be an illegal act. An argument has to be made, and you have to have

a plaintiff that has been damaged. I would say the loss of privacy is damages.

The executive branch does not have the authority to do this on its own. The FISA Court is a sham. Congress needs to pass some legislation putting an end to the excess and putting some meaningful surveillance on the FISA court and its surveillance of the people of the United States.

Democracy is not possible when the executive branch is maintaining the metadata records on all citizens and can subpoena the contents of citizens' communications from the past virtually without limitations.

[Cryptoad]

61. The content of these conversation is not being collected and saved

only the meta data ( who called whom from where when). Congress can indeed change the law. But I think the "public Good" will win the war.

[JDPriestly]

72. If you have the metadata, you can easliy figure out what is being said.

They can call up the records of an individual in short order. It is a criminal enterprise. It is intended to control us and protect the corruption that has replace what we used to call government.

[Android3.14]

2. No public oversight = tyranny

That is all.

[dtom67]

4. yet another story....

that cannot be "Snowdonized" by Apologists.

[avaistheone1]

5. What are we fighting for?

So much for freedom.

[blkmusclmachine]

45. I have seen the enemy.

And he is us.

[Mnemosyne]

6. ...

[FiveGoodMen]

7. In the run-up to the 2008 election...

Obama's biggest detractors called him both a socialist and a fascist.

He's definitely not a socialist.

[Fantastic Anarchist]

15. And I fought those detractors tooth and nail ...

... against either charge.

Sadly, he's definitely no socialist.

[DeSwiss]

8. But I'm sure they meant that they were above the law......

...in a nice way.

- K&R



[center][/center]

[The Stranger]

9. Oh my fucking god.

What in the fuck is going on?

[blkmusclmachine]

46. Greasing the skids for the next GOPee Administration.

1 Party, 2 Faces

[SamKnause]

10. No law of the land

How much longer are the citizens of this country going to pretend that we live in a free society ???

How much longer are excuses going to be made for the past administration and the present administration ???

How much longer are we going to pretend that we have representation ???

Our government is so corrupt, and has caused so much destruction the world over, they will go to any lengths to keep their evil deeds hidden.

Our government now views 99% of its citizens as potential terrorists.

The 1%, the true terrorists of the globe, have the protection of the MIC brass, the Pentagon, all branches of government and the media.

[Rosa Luxemburg]

23. Congress can change the law

will they? Most of our congressmen/women like this.

[blkmusclmachine]

47. DC: By, and for, the 1% ONLY.

[City Lights]

11. How quaint!

[Fantastic Anarchist]

12. If we can't challenge things in court, then what can we do?

"Those who make peaceful revolution impossible will make violent revolution inevitable." ~ John F. Kennedy

[blkmusclmachine]

48. The President pals around with a number of high-profile NAR/Christian Dominionists.

Maybe we should ask them.

[truth2power]

13. In the public interest, huh? That's great, Mr. President, because

Snowden said what he leaked is in the public interest, too. So there ya' go! I guess you'll stop pursuing him, won't you??

Like an abusive spouse, he's doing this for our own good. Awww...isn't that special?

Well, some, here, will continue to minimize his actions and try to put the best face on it. But from where I'm standing, that's called co-dependency.

There's one thing I DO know for sure. I'm getting sick and damn tired of getting beaten up!!

[tazkcmo]

14. Just remember

Last edited Fri Jul 19, 2013, 05:06 PM - Edit history (1)

1. If you disagree with anything Obama does then you are for the Repukes.

2. It would've been worse under RMoney (which I believe) so it's o.k. (which I don't believe).

3. You're not smart enough to understand Obama's strategy or the issue.

4. It's x dimensional chess.




Edited for grammar

[Solly Mack]

16. Alrighty then.

[Douglas Carpenter]

17. if it cannot be challenged in court - that proves it is completely legal, right?

[Pholus]

19. Expecting that to be the main argument in 3, 2, 1.... nt

[blkmusclmachine]

49. 11-Dimensional Bull$hit,

But, who's getting played???

[Octafish]

74. Exactly. Plus the BFEE* Walk Free.

* Shorthand for warmongers, banksters, corrupt secret goverment types one hop or less from the Bush Family Evil Empire.

[Comrade Grumpy]

18. Cannot be challenged in court--what does that leave?

[think]

20. Excellent question /nt

[99th_Monkey]

21. We Be "Above The Law", so Nyaaa, Nyaaa ... you can no longer seek "justice" in US courts anymore. nt

[Chef Eric]

22. They're paying attention to us!

That means they love us, right?

[PD Turk]

25. ...

[1monster]

27. They can say any thing they want. That doesn't make it so. The Executive Branch

does not decide what can be heard by the Judicial Branch. The Judicial Branch does that.

[Thinkingabout]

28. Read it and weep.

[think]

38. I do...

[Hosnon]

52. Actually, I don't think even one person responding did.

The article is misleading but it does explain the actual legal argument, and it is not as tyrannical as the headline makes it out to be.

[dipsydoodle]

29. You've sure got some strange concepts of legal systems over there.

.

[HumansAndResources]

50. Our "Rights" only exist when they don't threaten the rich ...

It has been this way since the beginning of "our" (sic) nation.
When there is a threat, the rights are taken away - even free speech. Then, after the rich have re-solidified their hold - psychologically and institutionally - the 'right' is restored by a subsequent court ruling.

Of course, with the proper psychological setting, the need to restrict "our rights" can be minimized.
Note that when a 'war' is needed, something often gets blown-up and Americans are killed - then "our" (sic) government lies about it. This is followed by "our" (sic) president saying something on the order of, "Golly, gee-whiz shucks. I really didn't want us to go to war, but..."
See:
"Remember the USS Maine" - not attacked by the Spanish, after all.
"Remember the Lusitania" - was full of illegal war-materials, after all.
"Gulf of Tonkin" - there wasn't an attack on the US Navy in international waters after all (to spite the 'mischief' used to try to incite a response, per the recorded phone calls with LBJ).

The scary thing is that some people are just now beginning to realize we have a Criminal Government. While it's never too late to realize the truth, the more terrifying fact is how many Americans still wave the flag and still don't get it - they will talk about "giving up civil rights to preserve our freedom" without a second thought - absent even a scintilla of critical criticism of such oxymoronic double-think.

The lesson the rich have learned is, "Propaganda Works."

See Edward Bernays and the reform of the legacies of Rockefeller and Carnegie via "humanitarian" (sic) foundations. See the shifting of the debate from class-war to race and gender - played up by the "left" and "right" media outlets. Divide and conquer is alive and well.

[Katashi_itto]

30. Shit. This is who I campaigned and voted for?

[brett_jv]

32. This displeases me ...

However, the headline (as is so typical in media these days), is a bit sensationalistic. Kinda makes it sound like the whole subject is now decided, and not in the public's favor.

What the Executive Branch (not 'The Feds', which is much more broad) are arguing to a federal judge is that the people currently suing (i.e. ACLU) lack 'standing', not that the program cannot be challenged, period. Standing comes from being somehow 'harmed', which, they argue, the ACLU employees couldn't possibly 'know about', because the program is secret, ergo, they have no standing to sue.

Of course, this is a totally bullshit 'circular' argument (I believe tautology is the correct term) ... I really hope the Judge laughs them out of the friggin' courtroom.

I've been defending the Administration somewhat in this thing, on the grounds that the courts have yet to decide on the legality of this particular form of data collection. But if they're not even going ALLOW it be DISCUSSED by a court of law ... then THAT ... really pisses me off.

Esp. when the Obama admin has recently been giving lip-service to the idea that this program needs to be reviewed to confirm that it complies with the 4th, and that it may be scaled back as a result. Clearly, they can't be trusted to do their OWN review ... we need the Federal Courts to be involved here.

Bad Obama!

[daleo]

73. Another term for this type of thing, is catch-22

http://en.wikipedia.org/wiki/Catch-22

[JoeyT]

34. I welcome this conversation,

but you peasants better not think you can do anything about it.

[blackspade]

37. Disgusting that this invasive spying on Americans is going on under a Democratic administration.

[PSPS]

39. Not unexpected from this gang but, gee, thanks a pantload, Obummer.

[blkmusclmachine]

43. Police State

Who are you really, Mr. President ??

[Hosnon]

51. Sensationalist b.s. article sweeping the internet.

The government made no such claim. It argued that these plaintiffs do not have "standing" to sue.

They did not argue that no one has standing. They did not argue that the law cannot be challenged.

[brett_jv]

68. Look 5 posts up ...

Great Minds

[JDPriestly]

54. What gives an administration, the executive branch, the authority to decide what is constitutional

and what is not? Certainly not our Constitution. If Obama wants to snoop on the troops, the military, he is commander in chief, maybe he could argue he has that authority. But neither he nor the executive has the authority to decide what is and is not constitutional, what deprives us of our rights and what does not. And we will probably have to ask courts to review this many times before we get justice. That's the way our system works.

Please show me where, in the Constitution, the executive branch is given absolute authority to decide what is a breach of the Constitution and what is not.

Please show me where, in the Constitution, the executive branch is given absolute authority to determine what is needed to insure our safety and security as a people, as a nation.

[brett_jv]

69. They're not given that authority ...

However, as myself and others pointed out, the Administration lawyers are really just making an argument to a judge that the current plaintiffs lack standing to sue. This kind of thing happens all the time. The Executive Branch are NOT the final arbiters.

The article (esp. the headline) makes it sound ... worse than it really is.

[TheKentuckian]

76. Under their rationale for why there is a lack of standing, what is the difference in real world

application?

It is at least as bad as it being made to sound, maybe worse. Are you really trying to defend the Orwellian logic that is being employed against the American people? You really support the burden of proof being put on the powerless.

Let's cut out the bullshit, they are saying that no one can possibly have standing because who could prove they have been a target? Further, if someone comes forward with proof they are going to be gagged under national security and in any plausible outcome they are going to be charged with espionage, theft of state property, breaking clearance, and anything else they can throw at them.

Describe who would possibly have standing and how they could prove it. Who gives a damn about some technocratic distinction that makes no tangible difference?

Is this what you call a defense? I guess that is all you have to work with but you could just quit defending the indefensible and help bring the pressure to make these folks accountable to the people but that won't line pockets or increase power for the powerful, will it?

[avaistheone1]

64. Bush administration attacked other countries, Obama administration attacks this country

[NoodleyAppendage]

70. This is NO LONGER a democracy. Imagine if the same was said by a President Palin. n/t

J

[bobthedrummer]

71. No one is above the law kick. n/t

[Trillo]

75. I guess that taking these from everyone could get a bit expensive,

given that it appears respective copyrights have been violated en masse. 300 million folks times reasonable monetary penalties = a big damn number.

[quadrature]

77. the (telephone routing) data belongs to the phone company .nt