NSA Mass Phone Surveillance Possibly Constitutional After All

August 28, 2015 9:17 PM

On December 13, 2013, the US district court for the District of Columbia ruled that the NSA's bulk collection of American citizens' telephone records was "likely" to violate the Fourth Amendment (previously on MeFi). Today, DC's federal court of appeals overturned that ruling. The rationale is that the plaintiffs did not prove "that they were affected by the metadata-gathering program," so they did not have standing to challenge it in court.

Leon [the judge who issued the original decision] reacted quickly to the appeals court ruling. In an order Friday afternoon, he set a hearing for Wednesday on the next steps in the surveillance lawsuit.

Until Congress acted earlier this year [when it passed a law ending the so-called bulk collection of telephone metadata], many lawyers expected the legality of the surveillance program to eventually be resolved by the Supreme Court. However, there now appears to be some chance that lower courts use the new law to punt on the issue of whether earlier iterations of the surveillance efforts were legal and that the justices also manage to avoid dealing with that issue head-on.

In 2013, the Supreme Court cited standing concerns as it tossed out a lawsuit over NSA surveillance. However, that decision came months before NSA contractor Edward Snowden's revelations about the extent of the spy agency's domestic surveillance efforts.

posted by Rangi (24 comments total)

That doesn't make it possibly constitutional. It's still only not not constitutional.
posted by I-Write-Essays at 9:29 PM on August 28, 2015 [13 favorites]

Yeah the fact that the court refused to hear the plaintiffs claims (because only people who could somehow prove they are subject to secret surveillance can sue to challenge said secret surveillance) doesn't imply that the surveillance is constitutional.
posted by zachlipton at 10:02 PM on August 28, 2015 [11 favorites]

AMERICA IS OVER.
posted by TwelveTwo at 11:25 PM on August 28, 2015 [2 favorites]

That doesn't make it possibly constitutional.

Is absolutely correct. The title of this post makes no sense whatsoever. Standing is in accordance with the rule of law - even when it is inconvenient. That's not the problem.

"However, the program has been allowed to continue through November under a stopgap measure while the Obama administration attempts...."

While the Obama administration attempts to keep the policies of the Bush Administration intact for as long as possible. There is your problem. There's no hope for any change until America sees the back of that "hope and change" guy.
posted by three blind mice at 1:11 AM on August 29, 2015 [8 favorites]

I don't think this is a derail (it might be) but other governments have looked at what the NSA has done and thought "I'll have what she's having".
posted by Mezentian at 1:23 AM on August 29, 2015 [1 favorite]

There's no hope for any change until America sees the back of that "hope and change" guy.

Even then. I clearly remember July of 2008, when I realized that Obama was a contender. That's when he flip-flopped on the Unlawful Domestic Surveillance, and came out on AT&T's side. At that moment he was a "Team Player", and it was a case of "Meet the new Boss, same as the old Boss..."

And that's why Sanders can't win. You have to compromise your ethics to win. Sanders is just too good a person.
posted by mikelieman at 2:01 AM on August 29, 2015 [4 favorites]

And "Metadata" was always just a distraction. As everyone has known since the Klein Deposition in EFF v. AT&T became public, when you put an optical splitter on a fiber backbone, you copy ALL THE TRAFFIC. Not just the headers... But when they get to control the discussion by artificially limiting it to "Metadata", we're fucked.
posted by mikelieman at 2:03 AM on August 29, 2015 [6 favorites]

Well when you catch 1 to infinity you inevitable get catch 22 in there.
posted by srboisvert at 7:13 AM on August 29, 2015

Any judge who would rule it constitutional has never actually read the Constitution. Of course, this is just the endgame that started with the red scare, kicked into high gear with the drug wars, so it's a moot point. America: It was a nice idea.
posted by entropicamericana at 7:39 AM on August 29, 2015 [2 favorites]

So if these plaintiffs don't have standing ... exactly who would? It seems like they're setting an impossibly high bar (I mean, duh, of course they are, but isn't that considered a Bad Thing in terms of legal doctrine?).
posted by Kadin2048 at 9:06 AM on August 29, 2015 [1 favorite]

The title really has it backwards: the judges didn't rule that surveillance is constitutional but rather to prevent the case where that ruling could actually be made.

To address entropicamericana's point, I would strongly doubt that they don't know this is unconstitutional: the whole point to the national security and standing games has been to prevent scrutiny, which is not something you need to fear if you actually have the necessary authority.
posted by adamsc at 9:22 AM on August 29, 2015 [2 favorites]

If any lawsuit which could potentially find the NSA's surveillance unconstitutional is going to be thrown out on grounds of standing—this one was, the Supreme Court did so with a similar case in 2013, and there's no obvious alternative plaintiff who would have standing—then isn't it de facto constitutional? Yes, the courts would never say "it does not violate the 4th Amendment because of <reasons>", but they'll keep on avoiding a clear statement that it does violate the Constitution on technicalities.
posted by Rangi at 9:28 AM on August 29, 2015

LA LA LA CONSTITUTION I CANT HEAR YOU
posted by benzenedream at 10:06 AM on August 29, 2015 [2 favorites]

People think of the Internet as this free place. Well, the design of the infrastructure and protocols started in the US Department of Defense. Basically it (and all networks) are an intelligence and counter-intelligence wet dream for governments. It is the technology itself, nothing more. Why does the dog lick itself? Because it can. Yes, every one and zero they can get their hands on, they will (probably all of them in some form or another).

You have a constitutional right for the dog not to lick itself. Good luck with that.
posted by thebestusernameever at 10:14 AM on August 29, 2015

As a legal layperson, I think I get the standing concept, but I'm still confused why it's a showstopper. Is the government stonewalling on discovery? Surely there is someone in the country who could have the necessary clearance granted to see if the plaintiff was indeed an affected party without releasing all the data for unrestricted use. There must be lawyers with TS-level background checks out there.

Having information be classified doesn't prevent all inquiry from all people forever.
posted by ctmf at 10:19 AM on August 29, 2015 [1 favorite]

The discussion should be encryption, not the courts. The courts are set up under Cold War national security directives. Think of them as HR, except you are going up against the CEO. The courts in this sense are just employees serving the interests of extra-constitutional Cold War security apparatus that is their boss.

I get grossed out by the futility of the concept of actually believing that there is any uncertainty in these court verdicts. I mean it is just a protest, that is all. This is not a meaningful contest, and I hate looking at the fake box score on these rulings.

No, I'm not cynical. I just don't care about the relatively meaningless NPR style bifurcated discussion of NSA surveilance court rulings. No, you don't get discovery in dealing with national security! Geez! Haven't you ever seen those damn black marker pages? It's all back marker, and that is not going to change via the courts.

Invest in strong encryption. Keep protesting for what you believe, but i personally think that the discussion of legalities is meaningless. That national security thing is pretty entrenched isn't it? Dug in like a tick. Still the same Cold War (now perma war) for national security agencies.
posted by thebestusernameever at 10:45 AM on August 29, 2015 [1 favorite]

The government holds all the cards, and if you find a chink in their armor they get to call a time out while they heat up their soldering iron to patch it up.
posted by rhizome at 3:06 PM on August 29, 2015

>The rationale is that the plaintiffs did not prove "that they were affected by the metadata-gathering program...

So "no harm[that you can prove], no foul."

Riiiiight.
posted by Catblack at 3:15 PM on August 29, 2015

thebestusernameever, you forgot to mention the Illuminati, and the fluoride.

I mean, all of that is true... but you still sound delusionally paranoic.

Which is the new white.
posted by IAmBroom at 8:54 PM on August 29, 2015

I don't know, IAmBroom. thebestusernameever doesn't seem to be positing any grand conspiracy. Rather pointing out an inherent systematic flaw.
posted by zoinks at 11:15 PM on August 29, 2015

I proudly use fluoride toothpaste.
posted by thebestusernameever at 9:51 AM on August 30, 2015 [1 favorite]

IAmBroom, I guess I'm on sweep up duty here this thread. Personally, I find that surveilance technology is inherently paranoic in design and purpose. I'm fine being dismissed as delusional in this context. I tip my tinfoil hat to you.
posted by thebestusernameever at 10:18 AM on August 30, 2015 [2 favorites]

"Yeah the fact that the court refused to hear the plaintiffs claims (because only people who could somehow prove they are subject to secret surveillance can sue to challenge said secret surveillance) doesn't imply that the surveillance is constitutional."

Kafka v. U.S.
posted by klangklangston at 11:00 AM on August 30, 2015

Standing matters. If you think this is "just" about standing think again. Standing is very often how the merits are decided. It's not neutral.
posted by ClaudiaCenter at 9:42 PM on August 30, 2015