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The Courts Government Privacy United States

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 @05:20AM (#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    Our entire government seems to think the constitution can be superseded by any other law whatsoever, as if the constitution being the highest law of the land doesn't actually overrule anything that contradicts it.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.
  • disingenious (Score:5, Insightful)

    by Black Parrot (19622) on Wednesday September 03, 2014 @05:28AM (#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.)

  • Re:It's amazing (Score:3, Insightful)

    by kruach aum (1934852) on Wednesday September 03, 2014 @05:55AM (#47815043)

    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 @05:58AM (#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.

  • by TheRealHocusLocus (2319802) on Wednesday September 03, 2014 @06:18AM (#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

  • by SeaFox (739806) on Wednesday September 03, 2014 @06:21AM (#47815119)

    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.

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

    by Seumas (6865) on Wednesday September 03, 2014 @06:39AM (#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:5, Insightful)

    by gstoddart (321705) on Wednesday September 03, 2014 @08:03AM (#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 gstoddart (321705) on Wednesday September 03, 2014 @08:11AM (#47815555) Homepage

    and was passed and signed in alarmingly little time, almost without debate or dissent

    And, worse, anybody who did dissent was accused of sympathizing with terrorists.

    And debate was reduced to "ZOMG, but, teh terrorists ... why do you hate America?", and hasn't really gotten much better since.

    "So this is how liberty dies... with thunderous applause." -- Padme Amidala

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

    by ganjadude (952775) on Wednesday September 03, 2014 @09:09AM (#47815851) Homepage

    So yes, it might be unconstitutional, but that doesn't mean anything, it's just a word.

    There are no words to describe how wrong you are here so im not even gonna waste my breath

    the constitution specifically states that anything not in the document is NOT permissible by the federal government. The constitution does not give the PEOPLE rights, it LIMITS the governments.

    As pointed out there is an amendment process if the federal government feels it needs more power concerning X. Unfortunately the feds have bastardized executive orders and the interstate commerce clause to superceed the constitution. It is wrong simple as that. and more and more americans are waking up to this fact.

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

    by bigpat (158134) on Wednesday September 03, 2014 @09:55AM (#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.

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

    by bigpat (158134) on Wednesday September 03, 2014 @10:09AM (#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.

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

    by brxndxn (461473) on Wednesday September 03, 2014 @10:35AM (#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.

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

    by bigpat (158134) on Wednesday September 03, 2014 @11:02AM (#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 fyngyrz (762201) on Wednesday September 03, 2014 @03:49PM (#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.

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