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Supreme Court Disallows FISA Challenges 306

Posted by Soulskill
from the right-of-the-FBI-to-keep-and-bear-wiretaps-shall-not-be-infringed dept.
New submitter ThatsNotPudding writes "The U.S. Supreme court has rejected pleas to allow any challenges to the FISA wiretapping law unless someone can prove they've been harmed by it. 'The Foreign Intelligence Surveillance Act, or FISA, was originally designed to allow spying on the communications of foreign powers. But after the September 11 attacks, FISA courts were authorized to target a wide array of international communications, including communications between Americans and foreigners. ... In this case, the plaintiffs' groups said their communications were likely being scooped up by the government's expanded spying powers in violation of their constitutional rights. Today's decision, a 5-4 vote along ideological lines by the nation's highest court, definitively ends their case. In an opinion (PDF) by Justice Samuel Alito, the court ruled that these groups don't have the right to sue at all, because they can't prove they were being spied on.'" Further coverage at SCOTUSblog.
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Supreme Court Disallows FISA Challenges

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  • FOIA, anyone? (Score:5, Insightful)

    by YrWrstNtmr (564987) on Tuesday February 26, 2013 @08:24PM (#43020173)
    Attack from a different direction. They'll probably shoot that down too, but play the game. Attack, attack, attack until something works.
    • by Taco Cowboy (5327)

      Attack from a different direction. They'll probably shoot that down too, but play the game. Attack, attack, attack until something works.

      Back in the 1960's and 1970's, that strategy worked.
       
      Now?
       
      With almost all the seats inside the system being occupied by people who are leaning towards the BIG BROTHER I am afraid the regular old-style "attacks" will become less and less effective

      • Possibly, but they're still the most effective tactics I can think of short of, I dunno, voters voting to preserve their rights.
        • Re:FOIA, anyone? (Score:5, Interesting)

          by hairyfeet (841228) <bassbeast1968@NOspaM.gmail.com> on Tuesday February 26, 2013 @10:51PM (#43021087) Journal

          Voting is two wolves and a sheep deciding what is for dinner in case you ain't figured that out yet. the ONLY ones you will be allowed to vote for, be it in a primary or general election, are the pre-bought. hell you might as well have only one checkbox that says "support the system" because that is ALL voting does. Even though I'm in no way a libertarian (I feel their beliefs would end up with a return to feudalism) watch this video [youtube.com] for a better explanation of why voting is just a waste of time.

          Oh and you might want to look up "Jon Stweart Ron Paul" to see how badly the primaries are rigged, he got footage that doesn't even try to hide how badly its rigged. It even shows that at places where Paul might have had a snowball's chance in hell the MSM treated him as "he who shall not be named" with talking heads practically tap dancing around their sentences so they would NOT ever speak his name, with it going so far as one naming the first, second, and FOURTH place finishers without even saying the words third place much less the fact that Paul took it. Its so bad that at the end of the video one of the reporters actually calls the anchor out on it, saying "Here we are talking about Palin and Christie, who aren't even running, and not speaking anything about Paul who is looking good in the polls here" and the anchor looks right at the camera, gets a douchebag smirk and says "If you get footage of Palin or Christie send it in, you can keep the Paul stuff". Hell he might as well have said "fuck the peasants, thinking they get a choice" while he was at it, because that douchebag smirk said it all.

          So all you can do is grab as much as you possibly can and be ready for the collapse which is inevitable now. Over 430% of our GDP is now in the stock market, including the retirement funds of a good portion of your fellow citizens, when the 29 bubble burst it was less than 125% GDP and that took nearly 40 years to climb out of, what do you think will happen when a bubble 3 times as large blows? there is nothing you can do to change it, nothing you can do to stop it, you can wave your little banner in the free speech zone all you want, the die is cast and the collapse simply can't be stopped. We shall see the system get more and more fascist as the collapse nears as they try to "maintain order" but it won't do any good, when the money is worthless and it takes a wheelbarrow full of cash to buy an egg nobody is gonna listen to big bro anymore, the whole thing will come tumbling down. But things will get a LOT worse before that happens, so be ready for it but don't think that walking into a booth with a piece of paper is gonna do shit, that paper isn't worth wiping your behind with anymore.

          • Yeah, same damn treatment they gave Pigasus, the bastards.

          • by Darby (84953)

            Even though I'm in no way a libertarian (I feel their beliefs would end up with a return to feudalism)

            Exactly.

            Pure Classical Liberalism is pretty much summed up by, We hold these truths to be self-evident that all people are created equal (under the law).

            Left and right are best defined by the ways in which they oppose this ideal.
            The left says, "I agree, but the power of the state must be used to promote this equality."
            *Extreme* leftism has problems such as:

            Everyone is equally poor.
            Some pigs are more equal

            • Re:FOIA, anyone? (Score:5, Interesting)

              by 0111 1110 (518466) on Wednesday February 27, 2013 @04:00AM (#43022331)

              You do realize that the founders of this country were 100% Libertarians themselves and that the All Men are Created Equal thing was one of their Libertarian slogans, right? Based to a great degree on the philosophy of John Locke. If you care about rights, human rights, individual rights, natural rights, whatever you want to call it then you are speaking the language of Libertarians. That's what Libertarians are all about: positing that all humans have certain inalienable rights that a government can neither give nor take away. That just exist as a natural consequence of being human.

              The whole point of Libertarianism is that people should not be treated as if one is superior to the other. Creating a level playing field without aristocrats was the whole point. That's what human rights are all about. The reason why humans are considered to have rights, equal rights, to life, liberty and the pursuit of happiness was because some people realized that no one has the right to tell anyone else what to do, to force them to act against their will. That no man has the right to make another man his slave no matter how righteous he may think his goals are. Whether the noble goal is to "kill all the jews, gypsies and undesirables and create a pure race" or "soak the rich" or "Only corporations are full citizens."

              That all humans must be treated as equals is the whole point of Libertarianism. Not to make everyone equal, but to not favor one man over another. Not ever. If you are under the illusion that Libertarians are close allies with Republicans, either of the new 'compromise is everything' variety or the old fashioned Tea Party ones you couldn't be more wrong. If anything I would say we are more like the old style Democrats, the ones who founded the ACLU in the first place.

              When it comes to class warfare we just don't care. It's irrelevant to our way of thinking. A classless society is every bit as much an ideal for Libertarians as it is for Communists or Socialists and Democrats and Republicans don't really even have goals like that. Talking about philosophy at all isn't really speaking their langauge. Pragmatism is the only language they speak.

            • by hairyfeet (841228)

              The thing that no libertarian has been able to answer for me convinced me it would be nothing but some sort of neo-feudalism which is thus: If I have money, and no law to stop me, WTF is gonna keep me from just hiring my own goon squad and helping myself to your land, your women, or any other damned thing I want?

              This is why libertarians remind me of the religious, they believe that somehow "magic" for want of a better term would keep people from becoming total dickbags. I say just look at history, you have

              • Re:FOIA, anyone? (Score:5, Insightful)

                by Rakarra (112805) on Wednesday February 27, 2013 @08:52AM (#43023239)

                The thing that no libertarian has been able to answer for me convinced me it would be nothing but some sort of neo-feudalism which is thus: If I have money, and no law to stop me, WTF is gonna keep me from just hiring my own goon squad and helping myself to your land, your women, or any other damned thing I want?

                Not a libertarian, but I can answer that easily enough -- your situation is anarchy, not libertarianism. Libertarians believe in a strong police force and legal system to enforce private property rights and punish violence. It's one of the very few things a libertarian thinks government is necessary for.

                • Re: (Score:3, Interesting)

                  by Anonymous Coward

                  Penn Jillette made the same point to me when we were going back and forth on Twitter (always a productive medium). But it's a clumsy paradigm -- there are lots of ways to oppress and subjugate people that a police force and a legal system can't protect against. Protecting my body against foreign invaders or a guy with a knife isn't much good if I'm dying from pollution in the water or being thrown out of my house by a bank that doesn't actually own my property. And "private property rights"? Do we redistri

                • Re: (Score:3, Interesting)

                  by fustakrakich (1673220)

                  So, as the saying goes, a libertarian is merely an anarchist who wants the police/army to protect them from their slaves?

          • The immense efforts that go into manipulating eligibility and registration, understaffing polling places in poor areas, and historically even outright violence prove that the powers that be are afraid of voters.

      • With almost all the seats inside the system being occupied by people who are leaning towards the BIG BROTHER I am afraid the regular old-style "attacks" will become less and less effective

        It mostly works for 'them'. Repeated variations of CISPA, etc. Until something sticks.
        All we can do is but try.
      • it's corporate oligarchy and the interests of the 1%. The Koch brothers have been implicated in tons of shady dealings, but you don't see anyone tapping their lines, do you?
        • Re: (Score:2, Insightful)

          by Anonymous Coward

          Absurd.

          The insignificant fleas that ride on the back of the state are just that: tiny. To understand reality, one must understand its rules, the relevant one to this discussion being the axiom of identity. Blaming those with no armies, no courts, no bombs, no police, no jails, and no permission from the ruled is a sort of blindness that can only be the result of a lifetime of propaganda and cultural pressure. This is big brother in its full glory. Not in plain view and direct, but so infused with society th

          • Most college freshmen spend their first winter break catching up with friends and family, and trying to get laid at various Christmas/New Year's parties.

            Instead, you spent yours reading Atlas Shrugged. What a waste.

    • by Dishevel (1105119)

      how about this.
      Fuck you SCOTUS.
      Fuck you Politicians.
      Fuck you Republicans.
      Fuck you Democrats.
      Fuck you Mr President.
      Fuck you Congress Critters.
      and
      FUCK YOU public employee unions. (Union vs Private companies is fair.)

    • by Mitreya (579078)

      Attack from a different direction. They'll probably shoot that down too, but play the game. Attack, attack, attack until something works.

      While this is a good idea, remember the exciting time we live in. The current administration is blocking challenges to FOIA the drone-related legal memos, because officially, they can neither admit nor deny that the drone program exists (secrecy didn't stop Obama from bragging about the program's success though). And the courts side with the government instead of laughing at them!

      Soon, all FOIA/court challenges will be answered by "We can neither admit nor deny that we are the Government. Admitting that w

  • Or, it's what everybody know's and nobody can prove.
    • by PPH (736903)

      The context of that quote and the character [wikiquote.org] that spoke it says quite a bit about the ethics of our courts.

  • by Karmashock (2415832) on Tuesday February 26, 2013 @08:30PM (#43020215)

    Rather then trying to sue the government they should have raised a constitutional objection to the law itself citing that it violated our right to due process as regards searches and seizure.

    Had they done that, the courts likely would have sided with them.

    It's important to remember that the courts are VERY concerned with protocol. Everything has to be worded and argued in a specific way or it will be dismissed like a syntax error into a compiler. Wrong wording or angle and they'll just say "wrong next case".

    Make it a forth amendment challenge however and you've got a different story.

    • by amRadioHed (463061) on Tuesday February 26, 2013 @08:37PM (#43020265)

      You can't just sue over the constitutionality of a law, you still need to have standing which based on the result of this case the majority believes they lack.

      • by jamstar7 (694492) on Tuesday February 26, 2013 @09:22PM (#43020585)
        Problem is, the FISA courts are supposed to be all about national security. No way they'd come out and tell you that you're under investigation until you get blackbagged off to sunny Camp X-Ray. That'd defeat the purpose of the investigation, and whoever leaked that info would be violating several federal laws.

        Big Brother has a long memory. And if you come to its attention, they might not find anything on you now, but that doesn't mean they won't find something to qualify you for a never ending vacation at Gitmo sometime in the future. Recently, the government came out with the revelation that the largest threat to national security is (wait for it!!!)...

        Veterans.

        Think about it a moment. Who else has the training and experience in toppling a government by force of arms? Who else, especially the older veterans, would tend to view the current government situation with alarm?
        • by flaming error (1041742) on Tuesday February 26, 2013 @11:13PM (#43021181) Journal

          Toppling a nominally civilized government by force of arms is stupid. Who should we shoot? Our local congressman? Our neighborhood cop?

          A smarter way is for us to unite in disobedience to clearly unconsitutional laws, and drum up media sympathy.

          The last time we threw out a government (our independence from Britain), was a bloody drawn-out affair in which our people were fighting Britain and each other, neither the loyalists nor insurrectionists had an objectively clear moral high ground, and were it not for some fortuitous flukes of happenstance, England's victory was assured.

          India's independence was a bloody drawn-out affair in which one side was the clear aggressor, the people didn't kill each other, and England's ouster was inevitable - just a matter of time.

          Gandhi's way is foolproof against any government that wants to be seen as civilized. The way of the gun is a crapshoot, where we kill our brothers while the government runs the casino.

          • by Shavano (2541114)
            The way you do it is you elect a Congress that is willing to enforce the law, and you get them to impeach the judges who won't enforce the law.
            • The way you do it is you elect a Congress that is willing to enforce the law, and you get them to impeach the judges who won't enforce the law.

              OK. So it's the civil disobedience thing, then.

          • And what if the government doesn't care about being seen as civilized?

        • by hairyfeet (841228) <bassbeast1968@NOspaM.gmail.com> on Wednesday February 27, 2013 @12:22AM (#43021497) Journal

          As much as I think Ayn Rand was a total hypocrite and a whackjob this is the ONE thing she got right, there are so many laws on the books now that frankly we are ALL criminals and at any time, for any slight, they can throw you in prison for as many years as they like simply because the laws are such a minefield now that just by breathing you are probably violating a dozen statutes.

          I mean for the love of God we have no less than 2 people in prison even as we speak for thoughtcrimes folks, how much more proof do you need that Orwell got the time a little off but otherwise was right on the money? You have the guy who wrote the "pro pedo" book, he wasn't charged with actually DOING anything, just putting his thoughts on the subject in book form, and the second was a guy that was told by his therapist to write his fantasies about sleeping with underage girls down so they could discuss them in therapy. Again he didn't actually DO anything, he just put his thoughts on paper.

          This is why I have always tried to support the ACLU and speak up, just as my grandfather taught me when he spoke up in support of the right of the Illinois Nazis to march even though Nazis dropped a wall on him and his squad at the end of WWII and he spent 2 years in a full body cast, its because you HAVE to support those with the unpopular cases because THOSE are how they get these bad laws rammed down our throats. Pedos, terrorists, racists, they use these as bogeymen precisely because they know how few will speak up for fear of looking like they support their views. Here is a perfect example, a law they ran through after the tragedy of 9/11 under the guise of "We must make sure it never happens again!" but government NEVER gets smaller or weaker, only bigger and more powerful, so now we are seeing these laws used as a blank check to spy on anybody that looks at them funny.

          But its NOT the weapons training that makes the fascists fear the vet, its the fact that those who have suffered for their freedoms are the ones who covet it most dearly. As I said if anybody had a reason to hate Nazis it was my grandfather, the stories of what he went through, of having the PAK 88 used upon them, of seeing bodies blown to bits, yet he was the first to step up and tell all those around him "They deserve the right to speak, no matter what we feel about their speech they have the right to be heard" and THAT is what scares the fascist, the fact that the vets won't kowtow and will stand up and point out their lies.

    • by amorsen (7485) <benny+slashdot@amorsen.dk> on Tuesday February 26, 2013 @08:46PM (#43020325)

      Oh, if only they had read your comment before sending their lawyers to the Supreme Court. It is unfortunate that they picked lawyers who didn't know anything about proper protocol. Victory would have been assured if they had picked a couple of Slashdotters at random instead.

    • by guspasho (941623)

      Courts won't take on such "advisory" cases. You need to prove that your rights have been violated in order to have standing to bring such a case. You can't just bring a case to a court and get a law struck down without such injury. I think it's a pretty terrible principle, especially since courts almost always defer to the government when it comes to the secrecy of evidence, and therefore its inadmissibility, making it impossible to prove any sort of injury in a court.

      • by jamstar7 (694492) on Tuesday February 26, 2013 @09:24PM (#43020595)
        But to prove your rights were violated by a FISA investigation is impossible under the grounds of national security. Catch 22 writ large enough for anyone to see.
        • Sounds about right. You can't sue without evidence. But we can't tell you whether or not there is any evidence because it would violate security even if we told you there wasn't any. But here, have this sheet of paper that's 100% covered in black swatches.
      • The Constitution is pretty clear that "unreasonable searches" cannot be performed "without probable cause". We can deduce the government is intercepting every electronic communication through various leaks [wikipedia.org] and investigations [businessinsider.com]. I think any average American would agree that these searches are unreasonable and lack probable cause. Certainly there would have been no American independence if King George had this technology.

        As for personal harm, the mere knowledge that the government is monitoring everyone's comm

    • by Chuckstar (799005)

      The court ruled that they have no standing. No standing means it doesn't matter what your argument is, the court will not listen.

    • Had they done that, the courts likely would have sided with them.

      Keep telling yourself that if it makes it easier for you to sleep at night.

      • Keep telling yourself that if it makes it easier for you to sleep at night.

        But the Supreme Court will protect us from the Federal Government because it's ... oh, wait.

    • by WorBlux (1751716)
      Dude, the case or controversy clause is black letter law, there is really nothing more fundamental to the legal process. It's not a matter of semantics, it's not a matter a failing to bring up an argument. It's a matter of failing to present sufficient factual basis to establish some loss, harm, or injury suffered by the plantiff. And keep in mind that a judge is required to accept all pleaded facts as true when considering a motion to dismiss for lack of standing. (The standard or proof here is beyond all
    • by Shavano (2541114)

      Rather then trying to sue the government they should have raised a constitutional objection to the law itself citing that it violated our right to due process as regards searches and seizure.

      Had they done that, the courts likely would have sided with them.

      It's important to remember that the courts are VERY concerned with protocol. Everything has to be worded and argued in a specific way or it will be dismissed like a syntax error into a compiler. Wrong wording or angle and they'll just say "wrong next case".

      Make it a forth amendment challenge however and you've got a different story.

      No, they would have rejected it on the exact same basis: "Prove to us that your rights, in particular, were violated."

  • Recap (Score:5, Funny)

    by MetalliQaZ (539913) on Tuesday February 26, 2013 @08:32PM (#43020239)

    Gov: We spy on Americans in secret.
    Me: Stop spying on me
    Gov: You can't prove that we did
    Me: *middle finger*

    Does that about cover it?

  • by Anonymous Coward

    I guess if you found yourself in Gitmo you could prove you were harmed.

    If you could ever get in front of a judge.

    Oh well.

    • by Mitreya (579078)

      I guess if you found yourself in Gitmo you could prove you were harmed.

      Even if you find yourself in Gitmo (which proves harm), would you also have to prove that you were illegally spied on by a secret court?

      Are FISA proceedings are made public after you are arrested? Or is all evidence you could possible have would by definition be illegal (and perhaps completely inadmissible, even if you have it).

  • by AK Marc (707885) on Tuesday February 26, 2013 @08:38PM (#43020281)
    If you must be harmed by it to complain, then the only test cases would come from terrorists, thus the "people" would either have to root for draconian government or terrorists. That will let the judges officially allow it against those with standing to sue, not enough will be annoyed to end the tyranny of the government. Note, it allows for people to sue, they just must have proof they were harmed, and only someone arrested after government spying will have a case. Any other attempts (FOIA and such) will be met with "national security" defense, which is still iron clad.
    • by hairyfeet (841228)

      Which is why they target these laws towards those that nobody will support, its the classic "first they came" play and it works damned near every time.

      I would suggest everyone watch this video [youtube.com] by a woman that is now on the watchlist. Yes folks that little white Jewish girl is now on the list and treated...well like an Arab whenever she tries to get on a plane, her crime? talking about what rights we have under the constitution. In this video she shows what she calls "the playbook" that every country that h

  • by Anonymous Coward

    International Treaties have a force of law higher than FISA, and are subject to US Senate confirmation as a result.

    Use that, all you need are EU citizens who reside in the US who have had their data slurped up, contrary to EU law, which is forbidden by the EU-US Data Treaty.

    • > International Treaties have a force of law higher than FISA

      No they don't. They have *zero* legal weight without enabling legislation (passed by the House & Senate, then signed by the President or veto-overridden).

  • Fortunately we weren't expecting much from those clowns, anyway...
  • On one hand, everyone being spied on means everyone has standing (but since it's a secret program noone can prove it).
    On the other hand, allowing discovery to prove standing allows for fishing expeditions of the type that IP holders would love to use to catch every act of copyright infringement (which judges are now getting wise to).

    • by Chuckstar (799005)

      It's worse than that. If everyone were being spied on, then everyone would have standing. Only lots of people are being spied on. But no one can prove which people are actually being spied on. So lots of people being spied on, but no one has legal standing to try to stop it.

  • by hugg (22953) on Tuesday February 26, 2013 @09:15PM (#43020537)

    Hopefully the President will still get the chance to appoint more progressives to the Supreme Court to protect us from his policies.

  • Great coverage & background in the included link.
    Glenn Greenwald should be required reading in High School these days.

    http://www.guardian.co.uk/commentisfree/2013/feb/26/supreme-court-eavesdropping-law-doj-argument [guardian.co.uk]

  • by jcr (53032)

    The court is part of the government. Do not expect them to uphold our rights.

    -jcr

  • The Supreme Court that says you can't sue if you can't prove you've been spied on and and FISA says you can't find out.

  • Dear USSC:

    Anything that abridges our fundamental and constitutionally guaranteed freedoms automatically injures us all. Aside from the danger of disproving the various fictional rights we generally assume we have - It polarizes the whackjobs, it makes the sheep less complacent, it makes us hate the government instead of merely having a healthy distrust of it. Hell, you've all thoroughly proven yourself completely incompetent over the past few years, why not make yourselves outright enemies of the people
  • instead of idealists.
    Totally nuts.

  • by hottoh (540941) on Tuesday February 26, 2013 @10:19PM (#43020937)
    What our fine Judge Alito said is it is ok to trespass, just don't get caught. Ok, it is a bit more complicated than that.

    Example. A neighbor sneaks in to Judge Alito's unlocked home. Judge cannot prosecute the neighbor's trespass, because Judge Alito cannot prove the neighbor had trespassed because it is legal to trespass secretly. Even though the neighbor has records to each and every trespassing, the records seem to be off limits as well.

    That is effed up.
    • by Mitreya (579078)

      What our fine Judge Alito said is it is ok to trespass, just don't get caught. Ok, it is a bit more complicated than that.

      I swear -- the only time those SCOTUS judges understand anything is when IT APPLIES TO THEM. During the "is it illegal to attach a GPS to your car without a warrant", they basically killed it after they were told that a supreme court judge could also be subject to a GPS device being attached to their car (without a warrant)

      I guess they don't think FISA would ever approve a warrant against them in secret...

  • by Freddybear (1805256) on Tuesday February 26, 2013 @10:22PM (#43020951)

    Look on the bright side, with all the leakers and whistleblowers in the government and the lousy internet security of most govt offices, anybody who is actually being spied on probably won't have to wait too long before the evidence lands in his lap.
    Three cheers for incompetent bureaucrats!

  • the USA is utterly doomed.

    It is in its death spiral.

  • Those who aren't being wiretapped, tortured or disappeared by the US imperium have absolutely nothing to worry about.

What this country needs is a good five dollar plasma weapon.

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