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First US Appeals Court Hears Arguments To Shut Down NSA Database 199

Posted by Soulskill
from the good-luck-with-that dept.
An anonymous reader writes: The second of two lawsuits filed against the U.S. government regarding domestic mass surveillance, ACLU vs. Clapper, was heard on Tuesday by "a three-judge panel on the U.S. Court of Appeals for the 2nd Circuit." The proceeding took an unprecedented two hours (the norm is about 30 minutes), and C-SPAN was allowed to record the whole thing and make the footage available online (video). ACLU's lawyers argued that mass surveillance without warrants violates the 4th Amendment, while lawyers for the federal government argued that provisions within the Patriot Act that legalize mass surveillance without warrants have already been carefully considered and approved by all three branches of government. The judges have yet to issue their ruling.
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First US Appeals Court Hears Arguments To Shut Down NSA Database

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  • It's amazing (Score:5, Insightful)

    by Aboroth (1841308) on Wednesday September 03, 2014 @04:20AM (#47814971)
    Our entire government seems to think the constitution can be superseded by any other law whatsoever, as if the constitution being the highest law of the land doesn't actually overrule anything that contradicts it. It's as if the constitution is completely meaningless.

    Sigh.
    • by cheater512 (783349) <nick@nickstallman.net> on Wednesday September 03, 2014 @04:43AM (#47815023) Homepage

      Wow this guy catches on fast.

      • by fyngyrz (762201) on Wednesday September 03, 2014 @01:04PM (#47818543) Homepage Journal

        I have the video paused right now at a point (34:43) where the middle-seated judge had just asked, when the constitutional argument came up, if Verizon could not access and utilize these records.

        I find the question somewhat bewildering.

        The 4th amendment was written to limit the government's ability to search and seize. If you favor an incorporated view of the 14th amendment, these limitations extend to the states, and from there to the legal establishments within the states, the various county and city and town legal structures.

        In no way was the 4th amendment addressed to private entities; limits of this type are set by contract, and by over-riding legislation which is not constitutionally based, but instead -- supposedly -- based upon the apparent needs of the community. Even if the constitution is taken as a model for such legislation, it is not the authority for it.

        I see absolutely no relevance at all as to what Verizon could, or could not, do with the data. The question at hand is what the government can do with the data.

        It is frustrating to see a sitting member of the bench ask such a wrongheaded question, implying that there is any relevance at all between the issue of constitutional constraints on the government, and business practice.

        The 4th requires probable cause, supported by oath or affirmation, before a warrant may be issued, and that warrant has to specify the place(s) to be searched and the thing(s) being searched for. The clear implication is that the warrant is required or the search is unreasonable, and the prerequisites for that warrant are laid out clearly as I have stated. Here's the 4th itself for reference:

        The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

        • Abridged version:

          The right of the people to be secure [...] against unreasonable searches [...] shall not be violated [...] but upon probable cause

          Regardless of how the government acquires the information, is the government performing unreasonable searches against the people? One might argue that inspecting every persons communications is both and reasonable and cannot possibly qualify for probable cause.

          • *unreasonable. Fatfinger moment..

          • by fyngyrz (762201)

            No. You're completely ignoring what the 4th says. It says "unreasonable" is prohibited, and then it goes on to explicitly define what reasonable means.

            If all it takes is some functionary going "well, I think it's reasonable" then the 4th has absolutely no meaning at all, which is not a sustainable position one can take for the framer's intent.

            • No, it forbids unreasonable searches, and gives conditions on warrants. Your interpretation would prevent a quick search for weapons when the police detained somebody, for example, while most people would consider that reasonable. Normally unreasonable searches can be conducted with a warrant, and there are restrictions on warrants. For example, if police have probable cause to suspect somebody's got stolen computers in their home, they can get a warrant and search the home for stolen computers, while s

        • by fyngyrz (762201) on Wednesday September 03, 2014 @02:49PM (#47819611) Homepage Journal

          I just finished watching the entire proceeding, with a few short rewinds.

          I'm appalled even at the suggestion that because the government thinks it "needs" to do something, it can. This theory permeates several of the points made; it is invalid from the ground up. If the government believes it needs something that is constitutionally prohibited, its remedy is found in the pursuit of the processes laid out in article five of the constitution -- not in outright ignoring the hard limits set upon it by the bill of rights or other sections of the constitution.

          Likewise, the "is it reasonable" sophistry was very upsetting to encounter again. It's an outright stupid tack to take. The 4th does indeed include the word unreasonable, but it then proceeds to describe what is reasonable: probable cause, supported by oath or affirmation, may cause a warrant to be issued though that warrant must be specific as to place(s) and item(s) to be searched for. Those conditions all being met, the search is then both reasonable and authorized. The fact is, if all it takes is someone saying "well, I think it's reasonable that we search fyngyrz premises (or whatever)" and this over-rides the very specific instruction that a warrant is required, then the entire 4th amendment is without any meaning at all other than perhaps, optionally, advisory.

          On the subject of who can search what...

          If I hire a house-helper to whom I assign the roles of answering the phone, keeping the larder up to date, cleaning and laundering, this person clearly has my permission to search. They will search under furniture, appliances and cushions for debris; they will search cabinets and the refrigerated devices for out of date or missing foodstuffs, they will open my drawers and organize and store my clothing. They will, in large part, know who has called me on my home phone, and who I may have called out to.

          Fine. I can give such permission. But this, in and of itself, in no way serves to authorize the government to search my premises -- for anything. The 4th limits the government with regard to my person, houses, papers and effects. It does not (obviously) limit me, or someone I hire a service from and extend such permission to, from searching. The 4th is clearly not limiting action in the public sphere. It is limiting action in the government sphere.

          Relating this to Verizon and its peers: By contracting to make phone calls through their capabilities, in no way have I extended the government access to my communications, in any part or parcel. What I have done is arrange for a service by Verizon/peers without extending the government any permissions at all, and the government, absent my explicit permission pretty much identical to that as given to my house-helper, is restrained, intentionally so by the 4th amendment from searching for anything, anywhere, in regard to my communications. Which, in case anyone is wondering, is also the rationale that underlies title communications law with regard to the content of my calls, and also forms the basis for the prohibition of any person monitoring cellular radio links.

          Every time the government succeeds in arguments from need instead of authorization, we become subject to the whim of individuals, rather than to a constitutionally limited government. It should frighten the living daylights out of anyone who understands the issues when the rationale is "but we NEED to", as was seen multiple times in the government side of this proceeding; and the more so when the judges don't laugh in the face of the person presenting that argument.

          Remember: If the idea is that the constitution is merely advisory, then there is no functional difference between the US government and that of any tin pot dictatorship. Someone says "I wanna", and it happens. That's most definitely not how our country was intended to operate; otherwise the framers were completely wasting their time.

          Sigh.

          • by BranMan (29917)

            Very. Well. Said Sir.

          • Likewise, the "is it reasonable" sophistry was very upsetting to encounter again. It's an outright stupid tack to take. The 4th does indeed include the word unreasonable, but it then proceeds to describe what is reasonable: probable cause, supported by oath or affirmation, may cause a warrant to be issued though that warrant must be specific as to place(s) and item(s) to be searched for. Those conditions all being met, the search is then both reasonable and authorized. The fact is, if all it takes is someone saying "well, I think it's reasonable that we search fyngyrz premises (or whatever)" and this over-rides the very specific instruction that a warrant is required, then the entire 4th amendment is without any meaning at all other than perhaps, optionally, advisory.

            Just FYI, the standing judicial interpretation of the 4th has not been like that for a very long time indeed. In particular, it has long been held reasonable that some circumstances call for a reasonable search or seizure even without a warrant, so long as there's probable cause. And even the probable cause can be waived so long as there's a "minimal intrusion on privacy" and there is an "important government interest" - see the decision in United States v. Martinez-Fuerte, from 35 years ago.

    • Re: (Score:3, Insightful)

      by kruach aum (1934852)

      Imagine having to come up with an immutable law that will still have to be applicable after another two hundred years of scientific and technological progress and you too may understand why constitutions need to be amended from time to time.

      Which is of course not to say that the argument from the government's lawyers isn't absurd and indicative of injustice.

      • Re:It's amazing (Score:5, Insightful)

        by Feces's Edge (3801473) on Wednesday September 03, 2014 @04:58AM (#47815055)

        Imagine having to come up with an immutable law that will still have to be applicable after another two hundred years of scientific and technological progress and you too may understand why constitutions need to be amended from time to time.

        But they're not trying to amend it at all; they're just ignoring it. And if they did try to amend it, everyone should oppose them simply because mass surveillance is wrong.

        • Re:It's amazing (Score:5, Insightful)

          by brxndxn (461473) on Wednesday September 03, 2014 @09:35AM (#47816465)

          This.. Amending the Constitution means they are abiding by it and admitting it is authoritative. Without amending it, it means they are attempting to subvert it.

          The fact that the federal, state, and local governments are going out of their way to create all sorts of circumstances where the Bill of Rights are ignored shows that there is a widespread attempt at completely removing the Constitutional framework. Peoples' rights are only violated when those rights are needed most.

      • > Imagine having to come up with an immutable law that will still have to be applicable after another two hundred years

        A law stating principles can do that and more.
        Matthew 22:36-40

        • And she doted upon their paramours, whose flesh is as the flesh of asses, and whose issue is like the issue of horses.
          Ezekiel 23:20

      • Re:It's amazing (Score:4, Interesting)

        by CrimsonAvenger (580665) on Wednesday September 03, 2014 @05:44AM (#47815211)

        and you too may understand why constitutions need to be amended from time to time.

        Luckily, our Constitution has a provision for amending it. Article V, in fact.

        When the government decides to go through that process, what they're doing will become Constitutional.

        Alas, just passing a law doesn't meet the requirements of Article V.

        • Alas, just passing a law doesn't meet the requirements of Article V.

          Actually, passing a law does and can, and that can happen with no objection from The People, because The People are the ones who made the law.

          For instance, some federally subsidized housing prohibits firearms on the premises as a condition of occupancy. Some prisoners in federal jails are not allowed to vote.

          • The Constitution does not guarantee a right to vote. It is unconstitutional to say someone cannot vote because of their sex, age (as long as it's over eighteen), or failure to pay a tax. Aside from that, the states are free to regulate voting as long as they continue to be democratic.

            Also, there are no national elections, since the elections for President and Vice-President are actually for electors, so there's no problem with having the states decide voting rights. If a state wants to issue an absent

      • by spacepimp (664856) on Wednesday September 03, 2014 @06:15AM (#47815317) Homepage

        In no way is secret ruling, by a secret court, about secret interpretations of temporary Acts an amendment to the Constitution.

      • by DarkOx (621550)

        Yes and fortuitously the Constitution defines a process by which it may be amended. Mind you that process was intentionally designed to require many parties with diverse interests to agree, so as to ensure the need is real and it isn't abused.

    • Re:It's amazing (Score:5, Insightful)

      by Seumas (6865) on Wednesday September 03, 2014 @05:39AM (#47815187)

      Which is why any discussion or legislation of it is pointless.

      All of these agencies have been doing what they want, with complete disregard for the Constitution. As a result, they have paid . . . absolutely no price. How would enacting legislation that says "no, really, you totally have to be bound by the Constitution like fucking everyone else" change anything? They've always disregarded it, so why would they change? If anything were to happen, it would simply be to drive them to further clandestine levels to cover up the shit they're doing.

      Besides, it's all over anyway, come the next 9/11. All America needs is a second significant terrorist attack on its soil and the population will fold like a deck chair. Once was scary. We caved into a lot as it was. One more time, it'll be a pattern and we'll always just be waiting for the next attack to come. To avoid that, we'll let you install video cameras in our home and inject us with transponders, for all we care.

      Our destination is sadly inevitable. It's only a question of how quickly we arrive there.

      • Re:It's amazing (Score:4, Insightful)

        by bigpat (158134) on Wednesday September 03, 2014 @09:09AM (#47816245)

        it would simply be to drive them to further clandestine levels to cover up the shit they're doing.

        Actually, that is the point. Making them afraid to violate the constitution is victory. Having a law doesn't mean that everyone will actually follow the law, that is naive. Respect for the rule of law means shame for those violating it. The fact that we have Generals, Congressmen and Presidents standing up and saying that the government should have the power to seize any records they want without warrant is itself remarkably dire for Freedom and Liberty.

        When Nixon's dirty tricks brigade stole business records from the Democratic Party offices he had shame enough to cover it up and Congress was about to impeach him. Today the president and thousands of people in the Executive branch and contractors have the power to seize all those types of records and more at the touch of a button, but they aren't cowering in dark places but rather when we find out about it they are waving the flag and calling it Apple Pie Patriotism to take what isn't theirs. Shame is exactly what they need.

        • Shame is exactly what they need.

          Doesn't work on sociopaths. That's the behavior we reward every election cycle, so naturally, the trait becomes dominant. It can't be helped.

          • by HiThere (15173)

            Nixon was a sociopath, and it worked on him. What you should have said was "Doesn't work on *all* sociopaths.".

      • To avoid that, we'll let you install video cameras in our home and inject us with transponders

        On the up side, at least we won't have to deal with those awful ankle bracelet transponders. It's good to see modern technology used wisely in the enslavement and control of future citizens. Why I remember way, back when in the 80's when governments had to compile huge warehouses full of paper documents in order to keep current dossiers on all it's people. You kids and your technology.. heh..

    • Re:It's amazing (Score:5, Interesting)

      by StormReaver (59959) on Wednesday September 03, 2014 @06:05AM (#47815291)

      It's as if the constitution is completely meaningless.

      You beat me to the point. The parts of the so-called "Patriot" Act that authorize warrantless surveillance in violation of the 4th amendment are invalid and illegal. It doesn't matter what parts of our government say otherwise; any law that violates the Constitution is not valid law.

      That being said, our governments's actions are backed by a large body of people armed with the most powerful weapons in the world. Unless we're willing to fight and die for the Constitution (which 99.999% of us aren't willing to do), we are truly screwed. That is because the only other option we have is to drop party politics and actually vote in our best interests (which 99.999% of us are too stupid to do) to restore a government which actually exists within its own legal limits.

    • Re: (Score:2, Interesting)

      by v1 (525388)

      Our entire government seems to think the constitution can be superseded by any other law whatsoever

      That's just what I was thinking. It seesm they're arguing "Now that we have the patriot act on the books and it allows this, the constitution doesn't count.'"

      Wait, what?

      • Re:It's amazing (Score:5, Insightful)

        by gstoddart (321705) on Wednesday September 03, 2014 @07:03AM (#47815521) Homepage

        Well, they're saying that since it's "only" metadata, it's not the same as getting all the data, and since the metadata is already used for billing, it can't be secret, right?

        The second half of the equation seems to be "since we passed this law, it must be legal because we said so".

        I figure if eventually a court doesn't say "sorry guys, but you really can't do that just because you say so", then America has pretty much jumped the shark and the Constitution no longer applies.

        And then things will get really interesting.

        I'm sure no lawyer, but it's always been incomprehensible how this could NOT violate the 4th amendment, because it amounts to general warrants and collecting everything just in case you need it.

        And when law enforcement started doing parallel reconstruction, you could see how all of their claims of "don't worry, citizen, we will only use this for terrorism" were completely false.

        9/11 triggered (or simply sped up) a decline into a totalitarian state where the law is whatever the government says it is, and the Constitution is meaningless.

        • by IMightB (533307)

          It's only metadata was the original line.... It's since come out that it's NOT just "metadata". Besides, it's not like the Constitution says "BTW metadata is OK lol"

    • Our entire government seems to think the constitution can be superseded by any other law whatsoever, as if the constitution being the highest law of the land doesn't actually overrule anything that contradicts it. It's as if the constitution is completely meaningless. Sigh.

      Stop throwing the constitution in our faces, it's just a goddamned piece of paper.

      • by ganjadude (952775)
        we will stop throwing it in your face when you fucking understand that it is the law of the land and NOTHING superceeds it, no matter how much you totalitarians want it to
        • Our entire government seems to think the constitution can be superseded by any other law whatsoever, as if the constitution being the highest law of the land doesn't actually overrule anything that contradicts it. It's as if the constitution is completely meaningless. Sigh.

          Stop throwing the constitution in our faces, it's just a goddamned piece of paper.

          we will stop throwing it in your face when you fucking understand that it is the law of the land and NOTHING superceeds it, no matter how much you total

    • Re:It's amazing (Score:4, Informative)

      by ganjadude (952775) on Wednesday September 03, 2014 @08:06AM (#47815843) Homepage
      I watched the entire hearing last night, and Its hard to tell which side the judge panel was on, however they did seem to be more interested in the ACLU side over the governments. Obviously we have to wait and see but these judges did NOT seem dumb in the slightest
    • Re:It's amazing (Score:5, Insightful)

      by bigpat (158134) on Wednesday September 03, 2014 @08:55AM (#47816157)

      Our entire government seems to think the constitution can be superseded by any other law whatsoever, as if the constitution being the highest law of the land doesn't actually overrule anything that contradicts it. It's as if the constitution is completely meaningless.

      What fewer people seem to realize is that the Constitution is there to keep us safer than we would be otherwise with a government which could use force against the people without restraint. A lawless society isn't a society where there aren't laws, it is a society where there is no respect for the rule of law.

      The mass confiscation of business records in the United States is a once in a generation threat to Liberty.

  • disingenious (Score:5, Insightful)

    by Black Parrot (19622) on Wednesday September 03, 2014 @04:28AM (#47814983)

    lawyers for the federal government argued that provisions within the Patriot Act that legalize mass surveillance without warrants have already been carefully considered and approved by all three branches of government

    Two of which are irrelevant for deciding constitutionally.

    And if a higher court has already agreed that what they are using the Patriot Act to justify is constitutional, they need merely cite the case. Otherwise they're just trying to blow smoke up the judges' asses. Or arguing that Appeals Courts' opinions don't matter.

    (I wouldn't think either was a good strategy for an argument in an Appeals Court, but maybe they think Appeals Courts' judges are stupid.)

    • lawyers for the federal government argued that provisions within the Patriot Act that legalize mass surveillance without warrants have already been carefully considered and approved by all three branches of government

      Two of which are irrelevant for deciding constitutionally.

      And if a higher court has already agreed that what they are using the Patriot Act to justify is constitutional, they need merely cite the case. Otherwise they're just trying to blow smoke up the judges' asses. Or arguing that Appeals Courts' opinions don't matter.

      (I wouldn't think either was a good strategy for an argument in an Appeals Court, but maybe they think Appeals Courts' judges are stupid.)

      It would surprise me if they ruled against the government in this matter. This turd is going to get handed on all the way up to the supreme court. Major players and two presidents from both the Republican and Democratic party have stood behind this mass surveillance, one by setting up the operation and the other by doing nothing to dismantle it but rather making the same liberal use of the mass surveillance data as his predecessor. Ruling against the government in this matter is a career ending move for any

      • Ruling against the government in this matter is a career ending move for anybody involved in the decision unless they are have reached the peak of the promotion ladder and are unfireable like the supreme court judges are.

        The judges in this matter are in fact appointed for life.

  • by korbulon (2792438) on Wednesday September 03, 2014 @04:56AM (#47815049)

    The ruling will provide a key insight into the judicial landscape on mass surveillance. So far both the legislative and executive branches have been in a race to suck each other off with massive expansions of surveillance programs: in spite of all the "gridlock" in Washington, their seems to be little argument regarding this particular issue. And the judicial branch has for the most part remained sidelines, refusing to weigh in. But if ever the phrase "silence implies consent" rang true, it's here.

    Based on this ruling we should be able to surmise if this whole system of checks and balances kinda sorta works, or is basically a farce. My guess is that they'll come up with some bullshit about such programs being vital for national security and that it's not a constitutional issue, and the farce will be complete.

  • Translation (Score:2, Funny)

    by Anonymous Coward

    provisions within the Patriot Act that legalize mass surveillance without warrants have already been carefully considered and approved by all three branches of government

    "The rubber stamps already rubber-stamped it. Know your place, citizen."

  • by TheRealHocusLocus (2319802) on Wednesday September 03, 2014 @05:18AM (#47815105)

    ~repost~ [slashdot.org]

    And over time the men of Dale had become complacent on privacy, liberty and freedom of association, and yet they prospered. No longer content with the wealth of accumulation, they valued innovation and the free exchange of information. To this end they did help to build the greatest communications network that had ever been. Through it all their wealth flowed like a river --- real wealth --- not the dusty treasure hordes of kings locked in windowless rooms.

    The fortune and fate of Dale is bound with that of the dwarves, for it is they who had built it. "Long ago in my grandfather Thror's time our family was driven out of the far North, and came back with all their wealth and their tools to this Mountain on the map." They were especially skilled in working gold, copper and silver into thin filaments which they strung far across the land. Where ever dwarves settled dial tone was sure to follow. But their skill was even greater with jewels and crystals, from which they built magical devices of geranium and silicon to carry voices and information in the aether. Altogether those were good days for us, and the poorest of us had money to spend and to lend, and leisure to make beautiful things just for the. fun of it, not to speak of the most marvelous and magical toys [...] and the toy-market of Dale was the wonder of the North."

    But of all the wonders of that age the most precious was perhaps the least visible, hidden deep under the Mountain itself. "Discovered by my far ancestor, Thrain the Old, now they mined and they tunneled and they made huger halls and greater workshops." The Mountain they had built is actually many mountains and there is one in your own city. I refer to the telecommunications exchange points of Tier 1 and Tier 2 networks such as MAE-EAST and MAE-WEST, where rivers of voice and data converge into brilliant points of light, then spread out again.

    The dwarves had not valued privacy per se, they had just built it for maximum throughput with minimum delay. Their vision was broad and down-to-earth and the data it carried was of practical use for the greatest number. "We use our own devices and just enough magic to make them go. Devices such as the palantir are of no interest to us, the Elves of Valinor can keep their silly patents. The palantir does work for distance communication but it is incredibly expensive and uses a lot of bandwidth. It is also dangerous. If you wish to talk to family and friend, or close a simple deal, why would you wish to link minds, wrestle in thought or lock souls with the other party? The dwarves deliver only voices and runes and stay clear of elvish mind-fuck. Besides, the palantir uses a proprietary network and has no user-servicable parts. Like the Blackberry."

    But the dwarves' cleverness though inspired by wisdom was also their folly. While great wealth flowed through their network they were driven to perfect it, and that meant concentrating the flows of many through but a few interconnect points.

    "Undoubtedly that was what brought the dragon. Dragons burrow themselves into networks to steal information you know, wherever they can find it; and they guard their plunder as long as they live (which is practically forever, unless they are outed by Congressional hearing), and --- if you would believe them --- they do it for only noble purposes and never enjoy a brass ring of it. Indeed they hardly know a good bit of information from a bad, though they usually have a good notion of the current market value; so despite noble aims of vigilant protection, their omnificent awareness inevitably leads to dull and stupid ends that rend the fabric of society. Insider trading, scheming false flag operations and a 'selective failure' to divulge clear warning of terrorism if it would serve their own ends, a dragon is easily turned to the dark side by its very

    • geranium

      They used FLOWERS???

      Or did you mean germanium?

      • They used FLOWERS???
        Or did you mean germanium?

        OOPS yeah thanks. Only Elvish tech uses certain flowers and essential oils because the scents stir their shared cultural memory, traverse the elf blood brain barrier easily and allow them to perceive history as one glorious song. Selective cultivation over eons has allowed elves to tailor flower DNA to store their herd memory in complex organic molecules. Either that or the tales were written into flowers all along and the elves adopted that story as their own, who can say.

        Other hominids lack these specif

        • Either that or the tales were written into flowers all along and the elves adopted that story as their own, who can say.

          At least we don't have to worry about oracular slugs....

  • But if anyone believes this database is gonna actually be shut down, erased, etc, I have some beach-front property to sell you. Best case scenario is is gets ruled illegal and then moved deeper underground, and we can all pretend that it's really not operating anymore.

    • Next steps... (Score:4, Insightful)

      by bigpat (158134) on Wednesday September 03, 2014 @10:02AM (#47816749)
      Once it is clear again that it is illegal and unconstitutional for the government to order people to hand over all their records without a warrant, then companies will again have the right to refuse records requests and privacy agreements become valid contracts again. That at least allows people to again choose companies with better privacy policies which have contractual weight to privacy violations. Right now the government just jots down a few sentences on a piece of paper, hands it to the company and the company is required to give them whatever the government wants without a warrant and the company can't tell you about it, and you can't sue them for violating any privacy provisions of their contract with you even when you find out about it later. Sure some companies will roll over... based on past behavior you can probably expect Verizon and Comcast to just continue the practice under an agreement instead of an order. But there could be some VOIP phone providers that don't play ball with the NSA and will have privacy agreements that say so. Same with other businesses, there will again be some freedom to pick and choose companies based on privacy concerns.
  • by fullback (968784)

    I have this image of Leonard Cohen standing in the corner of the courtroom singing "Everybody Knows" during the hearing...

  • "the U.S. Court of Appeals for the 2nd Circuit."

    So is itt the first court or the second court?

  • ... then they will learn that they can collect massive amounts of data, but they have to keep their mouths shut and control who has access.

  • by Anonymous Coward on Wednesday September 03, 2014 @09:26AM (#47816365)

    with the judges participating.
    It was an interesting 2 hours of argument.

    There appear to be two main, independent issues.

    1) Is the current interpretation of the law what Congress intended?
              G: They reupped it twice after being told to go read the secret report telling how it was being used.
              P: Not that many folks actually knew what was happening. If they did not explicitly say yes, then the default is no.
              J: If we rule against this use, then the Congress can then explicitly say if this is what they meant.
                                This will require a public vote with the issues widely known to the public.
                                The judges doing this immediately should be tempered with the needs of keeping out the bad guys.

    2) Is the bulk collection a reasonable search under the 4th amendment?
              G: Yes, it follows from Smith which is the 3rd party pen register precedent with no expectation of privacy.
              P: No, this is an extreme extension of Smith. We expect our privacy and we want it back. (My words)
              J: If this is a reasonable collection, there doesn't appear to be any end to what can be collected under this 3rd party logic.

    The govt said that if nothing is done, the act is up for another reup in 2015.

    Everybody agreed that there were other means possible with the phone companies holding the data.
    This might not be as expedient but sounded like it would probably work.
    It would lower the concern of no audit trail for a rouge, internal govt search of the data set.

    It will be interesting to see how the judges rule.
    It seems to me that if there is another way, it is unnecessary to put this much secret power in one place.
    Which would make it an unreasonable search.

    My sense was that the govt representative was resigned to this possible outcome.
    It would be interesting to see if others watching the tape get the same sense.

    If this is how things work out, it seems a use of the old negotiating technique of
    ask for something really nuts so you can get something less nuts.

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