December 16, 2013

"I cannot imagine a more ‘indiscriminate’ and ‘arbitrary’ invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen..."

"... for purposes of querying and analyzing it without prior judicial approval... Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment."

Wrote Federal District Judge Richard J. Leon, a Bush appointee, in a case brought by Larry Klayman, a conservative activist, who is seeking to represent a class of all Americans.
Similar legal challenges to the N.S.A. program, including by the American Civil Liberties Union and the advocacy group Electronic Frontier Foundation, are at earlier stages in the courts. Last month, the Supreme Court declined to hear an unusual challenge to the program by the Electronic Privacy Information Center, which had sought to bypass lower courts.
ADDED: Orin Kerr has some sharp analysis:
Judge Leon’s first and most fundamental move is to distinguish Smith v. Maryland, the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone. I found Judge Leon’s argument on this point not only unpersuasive, but quite plainly so. I realize that a district court judge can’t just announce that he thinks a Supreme Court decision was wrongly decided. But there are plausible ways to write an opinion distinguishing Smith and implausible ways to do so, and Judge Leon’s opinion struck me as a surprisingly weak effort.
Read the rest at the link.

21 comments:

Chef Mojo said...

The fix is in. This won't amount to anything.

The Ruling Class will take care of itself.

YoungHegelian said...

Because of the nature of IP (Internet Protocol) phone network traffic, it hard to imagine how surveillance can be done at all without starting with a giant "bucket" of meta-data to search through. It's not like the old days of phone tapping, where you could intercept a point A to point B conversation. One really doesn't know what one's looking for until you find it. At that point, almost all the other data in the bucket is garbage.

We as a nation may have to choose between the national security loss of not snooping at all or the privacy loss of massive snooping.

betamax3000 said...

Re: "the 1979 case ruling that the Fourth Amendment does not protect numbers dialed from a telephone."

867-5309. NSA and the Lawyers of Tommy Tutone Will Be All Over You.

betamax3000 said...

Jihadi: I Need Your Number. I've Got to Make You Mine, Etc Etc.

john said...

I choose to believe this is a big smackdown of the Fisa court. A big stingy walloping hand across the faces of those otherwise faceless judges.

RecChief said...

how will we know if they stop?

john said...

It's not 867-5309.

It's 867-530ni-yine.

Smilin' Jack said...

This is an amusing tempest in a teapot. The IRS already has more of your personal data than the NSA could ever dream of getting.

Left Bank of the Charles said...

The way this works is that whatever the CIA and NSA can't legally do to U.S. Citizens, they allow Britain or Canada to do. Likewise, we spy for them on their citizens.

It's an interesting civil liberties deal. Your private communication are monitored by a friendly government, not your own. Perhaps there is even some protection in that arrangement.

So if the U.S. Government loses on appeal, Britain and Canada will just have to step up their snooping. One can wonder, also, if this judge's decision is a chess move designed to entice Edward Snowden in from the cold.

St. George said...

Professor, were you trying to tell us something yesterday with the story about the Tea Party?

It really is amazing up with which the American people will put.

Why Engla, er, America Slept.

jim murray said...

The impositions to our privacy by the federal government since 9/11 have been insidious. NSA, TSA, Homeland Security should all be abolished. They have been ineffective.

Matthew Sablan said...

"We as a nation may have to choose between the national security loss of not snooping at all or the privacy loss of massive snooping."

-- I think the better question is when is it OK to start snooping through people's private garbage... though that isn't even a good equivalence.

tim in vermont said...

What worries me is the partisan political uses to which this data may be put. It is obvious that the current administration, like his model, Nixon, sees every administrative decision, no matter how trivial or important, in a partisan light. There is nothing to protect us from becoming a one party state, then a completely corporatist economy, then, who knows, but it won't be American as we know it anymore.

Joe said...

In some ways, Orin Kerr represents what is wrong with the legal profession. Like far to many other lawyers, especially law professors, he seems to believe that a good legal opinion must be clever--heaven forbid a judge simply state plainly that an obviously unconstitutional law is just that.

From a law professor standpoint, the advantage of long winded clever arguments is that they [the professors} have something to deconstruct; they have an excuse to lecture everyone else on their own cleverness and they can mentally masturbate in public.

If there is any one thing I've learned in my career it's that writing plainly pisses off those who want to twist your words to their benefit. It especially pisses off people who are much dumber than they portray themselves to be.

Robert Cook said...

"We as a nation may have to choose between the national security loss of not snooping at all or the privacy loss of massive snooping."

I choose the former. There's no evidence mass snooping has ever fortified our national security.

Robert Cook said...

"This is an amusing tempest in a teapot. The IRS already has more of your personal data than the NSA could ever dream of getting."

Hardly.

madAsHell said...

At some point, the data will prove anything they want it to prove.

RecChief said...

tim in vermont said...
What worries me is the partisan political uses to which this data may be put.

Ya think? With this administration?

Also, remember, what incensed John Adams was a disrespect for the Law by the British. Tea Party indeed.

khesanh0802 said...

I have been supportive, in the past, of the NSA gathering intelligence regarding foreign sources. As the discussion continues about what the NSA is actually doing, I am becoming increasingly uncomfortable with the broad scale gathering of data no matter what the rationale.

I must, once again, agree with Robert Cook. I too would "choose … the national security loss of not snooping at all". I do not trust this, or any other administration, to behave themselves.

Kirk Parker said...

YoungHegelian,

And just what specific characteristics of IP Phone traffic would those me? (Hint: none that I'm aware of.)

Kirk Parker said...

RecChief,

"How will we know if they stop?"

They won't.

There; now you know.