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You are here: Home / Politics / Please remain on the line; your call is very important to us

Please remain on the line; your call is very important to us

by Betty Cracker|  May 7, 201510:55 am| 60 Comments

This post is in: Politics, Security Theatre

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Well, this is somewhat interesting: A federal appeals court has ruled that the NSA’s phone data collection program is illegal. The ACLU, which was the plaintiff in the case, celebrates on Twitter:

VICTORY! #NSA call tracking program revealed by #Snowden ruled illegal. We filed suit in 2013 https://t.co/CzRyRbJMpZ pic.twitter.com/Etptl4gb2A

— ACLU National (@ACLU) May 7, 2015

Your move, Congress.

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Reader Interactions

60Comments

  1. 1.

    Jerzy Russian

    May 7, 2015 at 10:59 am

    Will this go on up to the Supreme Court?

  2. 2.

    Punchy

    May 7, 2015 at 11:00 am

    So why can’t the government completely re-classify the whole thing as top secret, continue to monitor calls as before, then claim all lawsuits void under their “state secrets” get-out-of-court-free card? Isn’t this what Bush did successfully for years with regards to monitoring email and other internet communications?

  3. 3.

    kindness

    May 7, 2015 at 11:00 am

    Great news unless this moves to the Supreme Court because you know what those dickheads will do.

  4. 4.

    Amir Khalid

    May 7, 2015 at 11:03 am

    Burnsie says he’ll read the whole thing and then report back.

    @Jerzy Russian:
    These rulings get appealed as a matter of course, don’t they?

  5. 5.

    srv

    May 7, 2015 at 11:07 am

    Yawn.

    Let them eat meta-cake

    – Barack Hussein Obama & his perjurer Clapper

  6. 6.

    Brachiator

    May 7, 2015 at 11:13 am

    Western nations have already decided to expand the security state. Canada:

    Legislation that would dramatically expand the powers of Canada’s spy agency has cleared a key hurdle.

    The House of Commons on Wednesday approved the Anti-Terror Act, which was spurred by last year’s attack on parliament. The act would give the spy agency the ability to operate overseas and make preventative arrests. Dominated by the Conservative party, the Senate is expected to approve the act before June. Prime Minister Stephen Harper has been a staunch supporter of the bill, which criminalises the promotion of terrorism, including via the internet.

    “There is a high probability of jihadist attacks from within,” Canadian Defence Minister Jason Kenney said. “The threat of terrorism has never been greater.”

    The bill also makes it easier for police to arrest and detain individuals without charge.

    And in France:

    The French parliament has approved a controversial law strengthening the intelligence services, with the aim of preventing Islamist attacks.

    The law on intelligence-gathering, adopted by 438 votes to 86, was drafted after three days of attacks in Paris in January, in which 17 people died.

    The Socialist government says the law is needed to take account of changes in communications technology.

    Rolling it back in the US? Good luck with that.

  7. 7.

    balconesfault

    May 7, 2015 at 11:16 am

    Since the Tea Party is based on distrust of government, then all those Tea Party elected Congressmen will take action to reduce the power of government to intrude on our privacy, right?

    Ha. I crack myself up sometimes …

  8. 8.

    Mandalay

    May 7, 2015 at 11:28 am

    @kindness:

    Great news unless this moves to the Supreme Court

    The judges preempted that possibility to some extent:

    In declaring the program illegal, the judges said, “We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.”

    As Betty said, your move Congress. If the government wants to capture metadata then make it legal, and force everyone in Congress to take a very public position on the issue.

  9. 9.

    Big ole hound

    May 7, 2015 at 11:28 am

    Maybe Snowden will get a pass now

  10. 10.

    different-church-lady

    May 7, 2015 at 11:29 am

    Your move, Congress. SCOTUS.

  11. 11.

    burnspbesq

    May 7, 2015 at 11:32 am

    @Big ole hound:

    Maybe Snowden will get a pass now

    Snowden’s putative public service can be taken into account at sentencing. Criminal and hero are not mutually exclusive.

  12. 12.

    Omnes Omnibus

    May 7, 2015 at 11:34 am

    @Mandalay:

    The judges preempted that possibility to some extent:

    How does that remotely preempt an appeal to the Supreme Court?

  13. 13.

    burnspbesq

    May 7, 2015 at 11:34 am

    I’m heading into a meeting and won’t be able to finish reading the opinion until this afternoon, put the parts I have read so far (standing and the Administrative Procedure Act) have real problems. I don’t expect this decision to survive rehearing en banc, much less Supreme Court review.

  14. 14.

    burnspbesq

    May 7, 2015 at 11:38 am

    @Brachiator:

    The whole world loves the wholesale slaughter of civil liberties. They just don’t like it when we slaughter their civil liberties without asking permission.

  15. 15.

    WereBear

    May 7, 2015 at 11:39 am

    Ya know, if Muslim Extremists didn’t exist, Republicans would have to invent them.

  16. 16.

    Carolinus

    May 7, 2015 at 11:42 am

    @Mandalay:

    As Betty said, your move Congress. If the government wants to capture metadata then make it legal, and force everyone in Congress to take a very public position on the issue.

    They’re clearly going to. The latest House GOP version of the USA Freedom Act (a version of the same bill the Dems and the President supported in the lame duck session w/ somewhat weaker & less robust reforms) will become law. It explicitly addresses patriot act section 215 collection. I imagine this ruling just eased its passage, since Congress will want to preempt the courts.

  17. 17.

    Mandalay

    May 7, 2015 at 11:47 am

    @Carolinus:

    I imagine this ruling just eased its passage, since Congress will want to preempt the courts.

    Exactly so.

  18. 18.

    Carolinus

    May 7, 2015 at 11:51 am

    BTW, contra that ACLU tweet, Snowden didn’t reveal the phone records metadata program. USA Today did:

    http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm

    [5/10/2006] The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

    …

    The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said.

  19. 19.

    Brachiator

    May 7, 2015 at 11:52 am

    @burnspbesq:

    The whole world loves the wholesale slaughter of civil liberties. They just don’t like it when we slaughter their civil liberties without asking permission.

    Fair point. However, even though I think it wrongheaded and paranoid, I think there is a consensus among Western intelligence services that expanded spying is essential. And these agencies co-operate with each other and share info. I don’t think that permission or even faux outrage at the US is a real concern.

  20. 20.

    kindness

    May 7, 2015 at 11:54 am

    @Mandalay: Meh. Just because a Federal Appeals Court rules something illegal does not mean the Supreme Court has to obey that ruling or logic. In fact as Chief Justice Roberts has repeatedly shown us they are the Honey Badgers of the Legal world. They don’t give a shit. President means squat to this new Dredd Scott crew.

  21. 21.

    Omnes Omnibus

    May 7, 2015 at 12:02 pm

    @kindness: A lower court opinion does not does not constitute precedent at the Supreme Court. That being said, there is no reason that Congressional action will preempt either request for rehearing en banc and/or and appeal to the Supreme Court.

  22. 22.

    different-church-lady

    May 7, 2015 at 12:06 pm

    @burnspbesq: Yeah, but VICTORY! in large red letters. So.

  23. 23.

    jonas

    May 7, 2015 at 12:09 pm

    I think Atrios’s take on this is just about right.

  24. 24.

    joel hanes

    May 7, 2015 at 12:12 pm

    Not just “a federal appeals court”, but the Second Circuit, which I believe usually leans conservative.

    If this came from the Ninth, I’d bet on reversal at SCOTUS.

  25. 25.

    Mandalay

    May 7, 2015 at 12:13 pm

    @kindness:

    Just because a Federal Appeals Court rules something illegal does not mean the Supreme Court has to obey that ruling or logic.

    Maybe so, but the larger point is that the decision has put pressure on Congress to explicitly authorize the collection of phone metadata (or not).

  26. 26.

    ruemara

    May 7, 2015 at 12:20 pm

    This story reminds me of the attempted discussion I had with a workmate on the new PayPal IP clause. It just sounds like bad law meeting bad interpretation of the law.

  27. 27.

    AxelFoley

    May 7, 2015 at 12:24 pm

    @srv:

    Why is this asshole allowed to troll here?

  28. 28.

    AxelFoley

    May 7, 2015 at 12:25 pm

    @burnspbesq:

    Snowden’s putative public service can be taken into account at sentencing. Criminal and hero are not mutually exclusive.

    Can’t wait to see him in an orange jumpsuit.

  29. 29.

    different-church-lady

    May 7, 2015 at 12:27 pm

    @AxelFoley:

    Can’t wait to see him in an orange jumpsuit.

    Personally I’d let him off the hook if, in return, his champions would shut the fuck up.

  30. 30.

    Cacti

    May 7, 2015 at 12:28 pm

    @Jerzy Russian:

    Will this go on up to the Supreme Court?

    Almost certainly.

    Unless at least 6 of 9 SCOTUS members are content to let the Second Circuit have the last word on this issue.

  31. 31.

    Randy P

    May 7, 2015 at 12:30 pm

    @srv: Can you clarify a legal question? When this program was revealed in 2006, was it illegal then? Or does your comment indicate that it’s only illegal if the President’s name starts with O?

  32. 32.

    Omnes Omnibus

    May 7, 2015 at 12:35 pm

    @burnspbesq:

    the parts I have read so far (standing and the Administrative Procedure Act) have real problems.

    I have to disagree with you on this. Perhaps my sympathy with the end result is clouding my reading but I think the court is on reasonably firm ground here.

  33. 33.

    liberal

    May 7, 2015 at 12:37 pm

    @burnspbesq:

    I don’t expect this decision to survive rehearing en banc, much less Supreme Court review.

    Why should we take seriously anything from someone who is so ill-informed he thinks TPP needs 2/3 of the Senate to pass?

  34. 34.

    Bobby Thomson

    May 7, 2015 at 12:40 pm

    @jonas: the ACLU has its ruling. Now let it enforce it.

  35. 35.

    burnspbesq

    May 7, 2015 at 12:42 pm

    @AxelFoley:

    Can’t wait to see him in an orange jumpsuit

    I’m surprised he doesn’t don an orange jumpsuit every time he appears in a video, just to fuck with us.

  36. 36.

    Cacti

    May 7, 2015 at 12:43 pm

    @Omnes Omnibus:

    I have to disagree with you on this. Perhaps my sympathy with the end result is clouding my reading but I think the court is on reasonably firm ground here.

    I imagine I’ll get around to reading some of the scholarly commentary on the court’s conclusion at some point, but all of us with a legal background know that unless Congress passes new law that moots the issue, SCOTUS is going to have their say.

    I don’t pretend to know how the big 9 will split on this one.

  37. 37.

    burnspbesq

    May 7, 2015 at 12:43 pm

    @liberal:

    WADR, what is an agreement among 12 countries, if it’s not a treaty?

  38. 38.

    Omnes Omnibus

    May 7, 2015 at 12:47 pm

    @Cacti: Even if Congress passes a law okaying the explicit collection of metadata, the Court will still have its say. This opinion doesn’t address the Constitutional issues; those will eventually be heard.

  39. 39.

    Bobby Thomson

    May 7, 2015 at 12:47 pm

    @Carolinus: the court also got that wrong. Pages 13-14.

  40. 40.

    Omnes Omnibus

    May 7, 2015 at 12:49 pm

    @Bobby Thomson: Nice catch.

  41. 41.

    burnspbesq

    May 7, 2015 at 12:55 pm

    @Omnes Omnibus:

    Much of the history of the Roberts Court’s standing jurisprudence consists of the Second Circuit reaching and the Supreme Court slapping its hand. Doesn’t mean the Supremes are right or the Second Circuit is wrong as a matter of what you or I might say is objectively the right answer, but it is what it is.

    The APA issue is one that we tax lawyers are dealing with in real time right now. In the wake of the Supreme Court in Mayo saying that Chevron is the right way to think about the validity of tax regulations, and the emasculation of the Anti-Injunction Act in NFIB v. Sebilius, the historical understanding that you couldn’t do pre-enforcement challenges to the validity of tax regulations (which would be a convenient escape hatch if the Supremes decide they want to duck the issue in King v. Burwell) is up for grabs. But there is about 50 years of case law that stands for the proposition that if Congress gave you an effective post-hoc way to challenge the validity of regulations, you don’t get to make a pre-enforcement challenge. In the case of metadata collection, the argument would run, if you are indicted for something as a result of information obtained through the unlawful collection of metadata, a motion to suppress is your remedy, and if you’re never indicted, you’re not damaged, so go away anyway. I’m not in love with the argument, but I think it will appeal to a majority of the Supreme Court.

  42. 42.

    liberal

    May 7, 2015 at 1:00 pm

    @burnspbesq:
    Read it and weep, Mr. Ignorant.

  43. 43.

    burnspbesq

    May 7, 2015 at 1:04 pm

    There is one aspect of the ruling that I find puzzling.

    The Second Circuit spends god-knows-how-many pages explaining why the Government’s interpretation of Section 215 is wrong, and at the end they sustain the District Court’s denial of a preliminary injunction. Now, unless something has changed recently, one of the things you have to show to get a preliminary injunction is probable success on the merits, and didn’t the court just spend god-knows-how-many pages explaining why plaintiffs are likely to succeed?

  44. 44.

    Bobby Thomson

    May 7, 2015 at 1:05 pm

    @Omnes Omnibus: you don’t think it’s an issue that the standing analysis relies on a privacy interest that the court never addresses except in dicta? The merits analysis is all about what “relevance” means, with the government arguing that all phone metadata are relevant. That’s a bridge too far for anyone but Alito, but I could see them reversing on standing.

  45. 45.

    burnspbesq

    May 7, 2015 at 1:05 pm

    @liberal:

    Proves nothing. That a thing can be done does not mean that it is being done. Show me a bill, and then shove it up your ass.

  46. 46.

    Bobby Thomson

    May 7, 2015 at 1:11 pm

    @burnspbesq: it’s very weird. Their rationale is that the patriot act will expire in June so why rock the boat, but here’s some stuff for Congress to consider. It’s basically a naked advisory opinion.

  47. 47.

    Omnes Omnibus

    May 7, 2015 at 1:11 pm

    @Bobby Thomson: I guess, for me, the standing issue comes down to this: if not this plaintiff, then who? But again, I may well be giving the opinion an overly friendly reading.

  48. 48.

    liberal

    May 7, 2015 at 1:26 pm

    @burnspbesq:
    LOL. Spoken like the true blithering idiot that you are.

    None of these trade agreements are passed with the 2/3 Senate requirement, which you’d know if you looked at the linked CRS publication.

    As for a bill, right now they’re debating fast track, as far as I can tell, so I would assume that that means there’s no bill introduced for the “treaty” yet. But what difference does it make? You’re clearly wrong.

    Why anyone takes a blowhard like you seriously on anything is beyond me.

  49. 49.

    liberal

    May 7, 2015 at 1:30 pm

    @burnspbesq:
    Moreover, why would Congress be debating fast track authority if ultimately it was considered via the 2/3 Senate requirement, given that fast track is a procedure for the context where the “treaty” is passed by a majority of both houses?

  50. 50.

    J R in WV

    May 7, 2015 at 1:31 pm

    @WereBear:

    Some people would say that is exactly what it happening.

  51. 51.

    Omnes Omnibus

    May 7, 2015 at 1:41 pm

    @Bobby Thomson: @Omnes Omnibus: If the argument being made is that the collection of metadata by the government is improper, I would submit that anyone whose metadata was collected by the government would necessarily have standing.*

    *Simplified to a thumbnail sketch, of course.

  52. 52.

    J.D. Rhoades

    May 7, 2015 at 1:45 pm

    @kindness:

    They already have. Smith vs. Maryland legalized the warrant-less collection of what’s now called “metadata” in 1979.

  53. 53.

    Omnes Omnibus

    May 7, 2015 at 1:51 pm

    @J.D. Rhoades: As noted in this opinion, there have been technological changes since 1979. I think Smith v. Maryland is distinguishable – if not ripe to be overturned (n.b. if we had a better Supreme Court. …and a pony).

  54. 54.

    Mandalay

    May 7, 2015 at 1:54 pm

    Here’s an analysis of the opinion. No doubt the Rumpoles here will put him straight.

  55. 55.

    Tree With Water

    May 7, 2015 at 1:56 pm

    Victory? Says who, one lousy judge? Those people break laws with impunity, and when they’re busted pass bipartisan legislation absolving themselves of their crimes.

    According to Digby, one CIA honcho is now publicly contending that Snowden bears a fair share of responsibility for the rise of Isil. They no longer even try to hide their contempt for democracy or the Republic.

  56. 56.

    Cacti

    May 7, 2015 at 2:30 pm

    @Bobby Thomson:

    it’s very weird. Their rationale is that the patriot act will expire in June so why rock the boat, but here’s some stuff for Congress to consider. It’s basically a naked advisory opinion.

    Having had a chance to peruse it now, and Orin Kerr’s post-ruling analysis, I’d say that’s a fairly accurate thumbnail sketch.

    Ruling limited to statutory interpretation, found it illegal as interpreted by the FISC court, over whom they have no jurisdiction. Declined to enjoin the law even after their ruling on the merits, because sunset provision.

    And this case was heard back in early September. So they’ve been sitting on this ruling for about 8-months now. Methinks they were waiting for the sunset date to give them an escape hatch.

  57. 57.

    Omnes Omnibus

    May 7, 2015 at 2:37 pm

    @Cacti: Yeah, having now read through it a second time at a more leisurely pace, it is pretty much a symbolic decision that really doesn’t do much of anything.

    ETA: OTOH, it does go down as a win in the ACLU’s books, so that’s nice.

  58. 58.

    Fair Economist

    May 7, 2015 at 2:41 pm

    Charles Pierce’s delightfully titled piece on the subject:

    In which we discover that the NSA has lost its appeal

  59. 59.

    LT

    May 7, 2015 at 6:28 pm

    The NSA dweebs in threads like this are a weird and sad entertainment.

  60. 60.

    LT

    May 7, 2015 at 6:30 pm

    @Tree With Water: God that’s lazy.

    Victory? Says who, one lousy judge?

    No, three. Two of them Obama-appointed. The other: Clinton.

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