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Cloud Privacy The Courts United States Your Rights Online

NSA's Legal Win Introduces a Lot of Online Insecurity 239

Posted by timothy from the or-did-you-think-the-state-was-your-friend? dept.
Nerval's Lobster writes "The decision of a New York judge that the wholesale collection of cell-phone metadata by the National Security Agency is constitutional ties the score between pro- and anti-NSA forces at one victory apiece. The contradictory decisions use similar reasoning and criteria to come to opposite conclusions, leaving both individuals and corporations uncertain of whether their phone calls, online activity or even data stored in the cloud will ultimately be shielded by U.S. laws protecting property, privacy or search and seizure by law-enforcement agencies. On Dec. 27, Judge William H. Pauley threw out a lawsuit filed by the American Civil Liberties Union (ACLU) that sought to stop the NSA PRISM cell-phone metadata-collection program on the grounds it violated Fourth Amendment provisions protecting individual privacy and limits on search and seizure of personal property by the federal government. Pauley threw out the lawsuit largely due to his conclusion that Fourth Amendment protections do not apply to records held by third parties. That eliminates the criteria for most legal challenges, but throws into question the privacy of any data held by phone companies, cloud providers or external hosting companies – all of which could qualify as unprotected third parties."
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NSA's Legal Win Introduces a Lot of Online Insecurity More

NSA's Legal Win Introduces a Lot of Online Insecurity

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  • The insecurity right now (Score:5, Insightful)

    by Anonymous Coward on Saturday December 28, 2013 @02:10PM (#45806859)

    The insecurity is on the side of the NSA.
    They wouldn't go through such hoops if we didn't have the most powerful freedom tool ever, namely the Internet.

    Use it properly and they shall vanish.

    • Re:The insecurity right now (Score:5, Insightful)

      by deconfliction ( 3458895 ) on Saturday December 28, 2013 @02:44PM (#45807085)

      The insecurity is on the side of the NSA.
      They wouldn't go through such hoops if we didn't have the most powerful freedom tool ever, namely the Internet.

      Use it properly and they shall vanish.

      You are right. But the problem is that the ISPs will not allow you to use the internet properly (e.g. hosting your own data on your own server at home, thus giving it the strongest possible U.S. 4th ammendment 'papers' protection.

      http://cloudsession.com/dawg/downloads/misc/kag-draft-2k121024.pdf [cloudsession.com]
      http://arstechnica.com/information-technology/2013/07/google-we-can-ban-servers-on-fiber-without-violating-net-neutrality/ [arstechnica.com]
      https://www.eff.org/deeplinks/2013/08/google-fiber-continues-awful-isp-tradition-banning-servers [eff.org]
      http://crossies.com/pissed.html [crossies.com]
      http://arstechnica.com/information-technology/2013/10/google-fiber-now-explicitly-permits-home-servers/ [arstechnica.com]
      http://www.mcclatchydc.com/2013/08/01/198327/googles-call-for-open-internet.html [mcclatchydc.com]

      • The ISP that I have at home permits me to run servers from my connection. I suggest you either change ISP or put pressure on them to change their policy.

      • Many ISPs will let you host servers. For example if you are a Cablevision Ultra 50 subscriber you are good to go.

  • How about that rented storage? (Score:5, Insightful)

    by Anonymous Coward on Saturday December 28, 2013 @02:11PM (#45806867)

    If the fourth doesn't apply to records held by third parties... what if your records are in a rented storage unit or a bank safety deposit box? If your property is held by a third party (your money in the bank), do constitutional protections against the government just seizing your money also not apply?

    • Re:How about that rented storage? (Score:5, Insightful)

      by sribe ( 304414 ) on Saturday December 28, 2013 @02:19PM (#45806899)

      Uhm, worse, what about people who rent rather than own? If you live in an apartment owned by someone else, do you have any rights???

      • Re:How about that rented storage? (Score:5, Insightful)

        by NicBenjamin ( 2124018 ) on Saturday December 28, 2013 @03:00PM (#45807183)

        Under the fourth amendment ownership of the building is irrelevant. The Fourth protects your person, papers, house, and effects. If you have a legal right to store papers you own in a place then they have the same Constitutional protections regardless of who actually owns the building. If you don't have a legal right to store them there -- maybe you leave the book where you record your illegal bets in some guys house and he finds it -- then the owner can rat your ass out and you get no Fourth Amendment protections. OTOH if the owner chooses not to rat you out the police need a warrant to search his house before they can get the book.

        The debate in this case is who actually owns these records. The government is arguing that since these records are not used by you, but are generated by a private company as part of it's business, they aren't actually your records. Just as the government doesn't need a warrant to read who has a tab at the local bar it doesn't need a warrant to read the data on who you called last week.

        Privacy advocates are arguing otherwise. The fact you think your records are yours is extremely important, and the NSA snooping has to stop.

        In legal terms the simple fact is that the only judges who matter are not likely to side with privacy advocates, because two of them are Obama appointees unlikely to argue his attempt to get the program covered by getting the FISA Court to issue warrants was evil Fascism, a third (Roberts) appointed the FISA guys who issued said warrants, and four more are aligned with the guys who thought that we didn't warrants in the first place. Five votes to overturn the NSA will be tricky.

        • That was really explanatory, indeed. One idea that came to my mind: how about medical records? Medical records are used by doctors not by you*, they are kept at hospitals and they are still protected by 4th Amendment. Do you think that this brings sufficient analogy to telephone metadata? Or is it maybe that medical records are protected by some law and not by the constitution?

          * In some cases they may be used by the patient, but that can be said for phone listings and related metadata as well.

          • Re:How about that rented storage? (Score:4, Informative)

            by NicBenjamin ( 2124018 ) on Saturday December 28, 2013 @08:18PM (#45808761)

            I'm not the best person to ask about that, because there's extra regulations involved. Under the Health Insurance Portability and Accountability Act (HIPAA) lots of patient information is protected from disclosure. Disclosing it wrongly can get medical professionals in deep trouble (including putting their licenses in jeopardy), but they are supposed to turn info over "when legally required." More important then the legal niceties, almost no healthcare professional will turn over a patient record without first being informed by his lawyer that, yes, under HIPAA he is supposed to turn over said record. In writing. Two copies. Of actual writing, with an actual signature (ie: not a print-out). One for his home files which he knows nobody will mess with, and one for work, where he may have to use it.

            Keep in mind there's supposed to be a cost/benefit analysis to all governmental data collection. If the benefits outweigh the costs the search is reasonable, and thus allowed. The benefit to the government (and thus the society that created the government) of knowing the numbers every drug dealer is dialing is very high. It helps cops do their jobs and lock up very destructive people, so it's easy to calculate in dollar terms. The cost in privacy rights is impossible to calculate in dollar terms, and therefore $0.00 in most court-rooms. With medical data the cost/benefit is much different. There is no benefit to law enforcement knowing every person on anti-depressants, and the cost to those people if there's a data breach would be high. Careers could be ruined.

            Prior to HIPAA the only example of a Fourth Amendment compliant mass database of medical info I can think of was a listing of everyone with a valid painkiller prescription in New York State. The people on the list benefited because they didn't have to be hassled by the cops, and society as a whole benefited because the cops were able to do their job of stopping prescription drug abuse more effectively. But I have no idea if they still do this since HIPAA.

      • Re: (Score:2)

        by fatphil ( 181876 )
        Even "owning" might not be enough.

        Do you not have housing associations? Where you "own", but you own a share in the association which grants you the right to live in the property that your share corresponds to.

        Likewise, do you not have leasehold ownership, rather than freehold ownership? In the UK, almost everything that's "owned" is leasehold. (You own the building and the right to live there, but not the land its on.)

        Do you also not have enough soft recycled wood pulp to use as toilet paper? Otherwise, w
    • The constitution can only cover so much in modern times. Why does the American public elect a government that allows acts that any normal person would consider invasion of privacy? It seems such a basic right but the sheeple just keep allowing it.

      • Re:How about that rented storage? (Score:5, Insightful)

        by Jane Q. Public ( 1010737 ) on Saturday December 28, 2013 @02:49PM (#45807115)

        "The constitution can only cover so much in modern times."

        I'm not sure if this is what you meant, but I don't see this as a deficiency in the Constitution. The Constitution says that people shall be secure in their "papers, and effects". Courts have for the most part ruled that modern communications are equivalent to "papers and effects". Some exceptions were made later (like the "3rd party" rule this judge used), but those exceptions are pretty clearly obsolete today.

        What is really important is the "expectation of privacy" that people have with their communications. They expect cell phone calls to be private. (And I would argue that they also expect their phone call "metadata" to be private too.) They expect emails to be private (or should).

        Courts are supposed to use the "reasonable man" or "reasonable person" principle: what would a reasonable person do, or expect? Using that standard, I think it is pretty darned clear that the vast majority of people DO have an expectation of privacy. And if most people expect it, it is by definition "reasonable".

        • Interesting point about the "reasonable person". I don't know any of them though. Most people I personally know (aside from my kids, who think like I do) think the meta data collection is OK. They equate it with survey data that is aggregated and anonymous - even though the meta data includes non-anonymous stuff like your phone number. I don't consider them reasonable, but they seem to be in the majority. Generally, if put to a vote, the majority - assuming they aren't apathetic and don't vote - will win an

          • Re:How about that rented storage? (Score:4)

            by Areyoukiddingme ( 1289470 ) on Saturday December 28, 2013 @07:23PM (#45808551)

            MOST people haven't actually thought about it. All you have to do is ask a few questions, and you'll discover that 100% of the people you know have an expectation of privacy regarding their metadata.

            Ask them if it's ok for any random person to query the phone company database and get a list of who they called last week. I guarantee you not a single one of them will think it's ok. Now ask them if it's ok for Abercrombie and Fitch to query the phone company database and get a list of who they called last week. I can't guarantee you won't find a single taker for that, but I bet your positive response rate is tiny. Now pull a dirty trick used by pollsters everywhere, and, having asked those two questions, ask them if it's ok for some random deputy to sheriff to query the phone company database without a warrant and get a list of who they called last week. Want to bet the response is overwhelmingly negative?

            Alternatively, ask if they expect the phone company calling record database to have a password on it. Want to bet every single one of them says yes?

            Really though, all that needs to be done to get people to actually think about the subject for one second is to ask the first question. Get people to acknowledge that they don't want Joe the Plumber looking up their calling record any time he wants and then remind them that that's privacy. You can also ask the same series of questions about email headers

            Somebody should ask that assinine judge that question. On camera.

      • Re:How about that rented storage? (Score:4, Informative)

        by NicBenjamin ( 2124018 ) on Saturday December 28, 2013 @03:13PM (#45807257)

        Clue #1 that you're Sheeple:
        You think the US Constitution has anything to do with protecting freedom.

        The US Constitution was created to allow the middle class of early America to get rich. Many of the activities they wanted to do were pro-freedom. Advancing technology, creating railroads, etc. are good things. But others were the exact opposite. In particular protecting slavery and stealing land from Native Americans were two of the top agenda items for the young United States.

        The goal was to allow enough freedom to this very specific WASP class so that they could get rich without worrying about the government, but not so much freedom that the British, nasty abolitionists, or Natives who liked living East of the Mississippi could arrange effective resistance to their get-rich-quick schemes. In this particular case there's no way in hell that the Founders intended Quakers to have the ability to organize peaceful resistance to slavery among slaves, which is why nobody batted an eye when the Federal Post Office started reading everyone's mail and arresting anyone who dared send anti-slavery info. to the South despite the fact this seems to violate both the First and the Fourth Amendments.

        • Wow, you are a complete moron.

          The US constitution was for one purpose and that was to create a union of 13 different countries (which the colonies became after independence from England and why outside the US state means country) without imposing on them outside the impacts of presenting a unified front for foreign affairs, settling disputes between the states, and providing very basic services like post office and roads, regulating interstate commerce and the such. It is all there outlined in the constitut

          • Wow, you are a complete moron.

            The US constitution was for one purpose and that was to create a union of 13 different countries (which the colonies became after independence from England and why outside the US state means country) without imposing on them outside the impacts of presenting a unified front for foreign affairs, settling disputes between the states, and providing very basic services like post office and roads, regulating interstate commerce and the such. It is all there outlined in the constitution- you can read it and it will back this up. It says nothing about what you try to claim.

            I guess you're a complete moron, too, because you just agreed with me.

            I wasn't saying the Constitution didn't do that stuff. I was saying that the point of the Constitution is not to protect freedom. Most of the things you mention reduce freedom by small but measurable amounts by forcing state governments to obey the Feds, despite the fact that states are closer to their people the Feds are.

            And you'll note that all the things you mention helped America's WASP Middle Class conquer Indian territory (with an A

          • Re: (Score:2)

            by fatphil ( 181876 )
            > outside the US state means country

            Just outside the US, to the south, you'll find the United Mexican States.

            Time for a classic:
            The United Nations initiated a poll with the request, "Please tell us your honest opinion about the lack of food in the rest of the world." The poll was a total failure. The Russians did not understand "Please". The Italians did not know the word "honest". The Chinese did not know what an "opinion" was. The Europeans did not know "lack", while the Africans did not know "food". F
        • thats quite a revisionist history indeed. the founders were smart enough to understand that slavery was unsustainable. Thats why the 3/5th rule was created. NOT as people today like to claim that we dont value black people as a full person but because it took power AWAY from the slave owners. The native american issue is a little more difficult to pin down, and I agree that there is more merit in that argument that we wanted to take the land from the natives (disclosure, I am part cherokee) in most cases ho

          • Re:How about that rented storage? (Score:4, Interesting)

            by NicBenjamin ( 2124018 ) on Saturday December 28, 2013 @08:06PM (#45808713)

            I will admit that the language is a wee bit strong, but I really fucking hate it when assholes who've done 10 whole minutes of research on the internet refer to almost everyone else as Sheeple.

            It's not as revisionist as you think. The Constitution is clearly intended to head off the slavery debate. Technically it was legal almost everywhere, but the Northern states were starting to abolish it and Southerners were worried a strong Federal government would impose freedom on their unwilling states. So they said flat-out exactly what was to be done about slavery, and everybody went along with that consensus for a few decades.

            As for the Indians, keep in mind that under the Articles of Confederation we hadn't been able to take control of the Northwest territories. We had no Army and the states were so busy arguing over who would get the land when we finally divided it up that nobody was able to make an Army. In 1789 we passed the Constitution. In 1790 we sent the first expedition into the Territory, and it was crushed. The same thing happened a year later. Then in 1792 Mad Anthony Wayne took command. As a result of the war the Indian population of Ohio was virtually eliminated.

            BTW, on the prices we paid for Indian land, most Indian tribes did not have governments in the sense that we have a government. They didn't have an elaborate legal system, with elected Sheriffs, and County Jails, to enforce the will of some central body. It was not uncommon for the US to declare some random, easily bribeable dude "Chief," give him a lifetime supply of beer (plus just enough axes and other equipment to make him important in the community) and then send in the Army to shoot anyone who insisted on not being cheated.

    • What I want to know is, why the phone company is considered a third party at all? As I understand it a legal third party is a party uninvolved in the transaction. If I give you $10 and Bob happens to walk by, Bob is a third party. However, if I give $10 to Bob to give to you he is now an intermediary, not a third party. By the same reasoning the phone company is an intermediary in our telephone conversations.

    • The US Federal Government already believes bank safety deposit boxes are fair game, no warrant needed: http://www.examiner.com/article/memo-dhs-can-confiscate-bank-accounts-without-warrant [examiner.com]

  • Can't rely on the law then (Score:5, Informative)

    by gnasher719 ( 869701 ) on Saturday December 28, 2013 @02:27PM (#45806953)
    Obviously, if you don't want the NSA to read your data, make sure they can't read them. Make sure your data is not stored outside your control by someone who could at least in theory read it (like Lavabit). Make sure the data is not stored in the USA at all if you can avoid it.

    • Obviously, if you don't want the NSA to read your data, make sure they can't read them. Make sure your data is not stored outside your control by someone who could at least in theory read it (like Lavabit). Make sure the data is not stored in the USA at all if you can avoid it.

      Unfortunately there are large hypocritical corporations as well as governments colluding to prevent people from being more in control of their data by hosting it on residential servers.

      http://arstechnica.com/information-technology/2013/07/google-we-can-ban-servers-on-fiber-without-violating-net-neutrality/ [arstechnica.com]

    • Outside the USA won't help much.

      Very few countries have the Constitutional protections we have, and no country that's managed to survive actually does everything privacy advocates want. If you tell everyone they're being investigated so they can do something about the investigation you are (by definition) telling 100% of the criminals you could have caught exactly when they should start destroying evidence. Some of them have official rules saying you should be notified afterwards, but I've seen no evidence

  • The way to deal with exposure is not to use insecure communications for information which must be kept secure.

    There will be much thrashing as users attempt to get secure outcomes because people are hard-headed.

    Water is wet and the Sun rises in the East.

  • All NSA-related judgements should be suspended (Score:5, Interesting)

    by Anonymous Coward on Saturday December 28, 2013 @02:37PM (#45807027)

    Due to the scale of NSA data collection, it is safe to assume that the NSA has data about every single US judge.

    The data NSA has may render the judges unable to render impartial judgement.

    A bi-partisan political review of all NSA data about every US judge should be conducted to verify that the judges are in the position to do their jobs.

    By now the entire US legal system might be corrupted by the virtually unlimited NSA data collection.

    • And the internet has just jumped the shark.

    • So you don't like the courts decision so they must be being blackmailed by the NSA? This kind of reasoning has made the truth inconsequential in todays society. Anything that validates your particular viewpoint automatically becomes true and every thing else is a conspiracy and patently untrue.

      • Re: (Score:2, Insightful)

        by Anonymous Coward

        Except that surveillance and monitoring of the judges are FACTS. While your "conspiracy theories" are not.

        Such facts do indeed have consequences of the legality and morality of such judges' decisions, REGARDLESS wether such records have been used or not.

        • So you are now saying that you have proof that the NSA is actively spying on judges in order to collect information so they can pressure the judge to make a particular ruling?

  • Impartiality (Score:3)

    by Dereck1701 ( 1922824 ) on Saturday December 28, 2013 @02:41PM (#45807061)

    Aren't judges supposed to be impartial adjudicators? This judges statements read like an NSA PR release touting all of the "wonders" of the NSA program without providing any evidence or noting any of the drawbacks.

    • Re:Impartiality (Score:4, Interesting)

      by nbauman ( 624611 ) on Saturday December 28, 2013 @03:13PM (#45807259) Homepage Journal

      Nobody believes that since the Republican-majority Supreme Court handed the election over to the Republican candidate in Bush vs. Gore.

      I don't even think the idealistic lawyers believe that. They've had too much experience with the courts.

      It's like the Greek philosopher Thrasymacus said: law is the interest of the strong.

      • Nobody believes that since the Republican-majority Supreme Court handed the election over to the Republican candidate in Bush vs. Gore.

        So that's what really did it for you? That's when you started doubting the system, when the Supreme Court upheld the legal principle that you can't keep changing the rules of an election after the voting until the other guy wins?

        Scalia on Bush v Gore: ‘Get Over It’ [outsidethebeltway.com]

        • Re:Impartiality (Score:5, Interesting)

          by nbauman ( 624611 ) on Saturday December 28, 2013 @07:45PM (#45808629) Homepage Journal

          Nobody believes that since the Republican-majority Supreme Court handed the election over to the Republican candidate in Bush vs. Gore.

          So that's what really did it for you? That's when you started doubting the system, when the Supreme Court upheld the legal principle that you can't keep changing the rules of an election after the voting until the other guy wins?

          Scalia on Bush v Gore: ‘Get Over It’ [outsidethebeltway.com]

          Starting in the 1970s, I worked as a paralegal in some law firms on a different cases, including a few important pro bono stuff. [Long legal experience omitted] There was a big debate at the time about whether the law was just enforcing the privilege of the rich, or whether it actually promoted justice. At one point, they had me convinced that there was some justice in the system, after we won some abortion cases and forced some cities and states to provide housing for the homeless, as they were required to do in their constitutions (which they had ignored). The civil rights laws finally helped negroes fight for right to vote in the South without getting killed https://en.wikipedia.org/wiki/Mississippi_civil_rights_workers'_murders [wikipedia.org] as often, and finally gave broad protection to black people and women as well.

          So the optimists had me convinced. The law could sometimes, imperfectly, provide justice. American corporate capitalism seemed to be doing pretty good too -- good pay, secure jobs.

          Then came Ronald Reagan. The gentleman's agreement up to then in Congress was that each president would choose a distinguished legal scholar and jurist who was impartial and respected by all sides. Reagan openly announced that he would be appointing justices that would give conservatives the results they wanted. https://en.wikipedia.org/wiki/Ronald_Reagan_Supreme_Court_candidates [wikipedia.org] He deliberately chose young justices (rather than the customary older, experienced justices) to end the normal rotation in the Court. I followed this on the Wall Street Journal editorial page, and they were open about what they were trying to do -- which was pack the court. And yes, Scalia was one of the nastiest bullies of all, just making decisions based on his own opinion and coming up with excuses to ignore the law. Since then it's gotten worse.

          There were many opinions of the Supreme Court that I didn't like, but I never expected to see something like Bush vs. Gore. The law in Florida was that votes were to be counted according to the intent of the voter. In order to believe that the voters intended to vote for Bush, you'd have to believe that 3,400 Jewish voters intentionally voted for Pat Bucanan, a prominent critic of Israel, instead of Gore and Lieberman. Even Bucanan didn't believe that. The 5 Republican justices ignored Florida law, and the facts, to hand the election to Bush. Since then they've been voting the Republican party line, which has moved far to the right.

          So I had to admit that the Marxist cynics were right. The law enforces the privileges of the powerful. No money, no justice.

  • In Soviet Russia ... (Score:5, Insightful)

    by nbauman ( 624611 ) on Saturday December 28, 2013 @02:43PM (#45807079) Homepage Journal

    During the cold war, we heard stories about how the Communist governments monitor their citizens.

    Now our government is monitoring us in ways that the East Germans would envy.

    Here's something useful you can do:

    -- Find out how your Congressman and Senators voted on these policies.

    -- Add it to their Wikipedia page.

    -- Don't vote for them if they don't support the Fourth Amendment.

    • If you paid attention during the Cold War you know that the problem was active oppression engaged in by the communist governments, not just the listening. Vote the wrong way - go to jail. Tell a joke about the party leader - go to jail for 10 years. Want to leave the country - go to jail.

      Write your Congressman and Senators, don't just update their Wiki page.

      • Re: (Score:2)

        by nbauman ( 624611 )

        Write your Congressman and Senators, don't just update their Wiki page.

        That's an interesting political science model: Politicians read thoughtful opinions by their constituents, and change their policies based on reasoned facts and arguments.

        I had a friend who used to write thoughtful, articulate letters to her elected officials. I thought it was charming, in a naive way.

        In my observation, politicians are more likely to get elected based on campaign contributions from special interest groups. In addition to money, there are special interest groups that can actually drive voter

        • If your Senator is Chuck Schumer then you have my condolences.

          Most politicians do pay at least some attention to the public's sentiment on various issues. When they get volumes of communications about a subject they are likely to take that into account, including which way the communications lean. There are no guarantees that will change anything. Some questions are a matter of party discipline and a particular vote is demanded. In other cases they are free to vote their conscience, and in those cases t

  • The ruling does nothing novel (Score:3)

    by Jay Maynard ( 54798 ) on Saturday December 28, 2013 @02:55PM (#45807155) Homepage

    The article summary is misleading. The Supreme Court ruled, in Smith v. Maryland, 442 U.S. 735 (1979), that you don't have a reasonable expectation of privacy in records you don't control. It's not Judge Pauley's conclusion, it's binding precedent that the court that rucked against the NSA handwaved away with not good explanation.

    • Re:The ruling does nothing novel (Score:5, Interesting)

      by russotto ( 537200 ) on Saturday December 28, 2013 @03:46PM (#45807425) Journal

      The Supreme Court ruled, in Smith v. Maryland, 442 U.S. 735 (1979), that you don't have a reasonable expectation of privacy in records you don't control. It's not Judge Pauley's conclusion, it's binding precedent that the court that rucked against the NSA handwaved away with not good explanation.

      The question is whether Smith v. Maryland -- which was about one order to put a pen register on one phone based on suspicion (but no warrant nor probable cause) -- is distinguishable from this case where every phone record from every phone in the country with no particularized suspicion at all. Pauley explicitly ruled "no", the other court ruled that it was distinguishable.

      If the NSA metadata collection is not distinguishable from Smith v. Maryland, then the slippery slope argument is not a fallacy.

      • The other ruling, by Judge Richard Leon, distinguished this case from Smith v. Maryland on the basis that the NSA's metadata collection was different in nature because of its volume. However, as Power Line's Paul Mirengoff noted, [powerlineblog.com]

        But these changes provide no sound basis for distinguishing Smith. That case rests on the view that, because of the nature of metadata, its collection by the government without a warrant isn’t constitutionally problematic. This true no matter the quantity of metadata the gover

        • Re: (Score:2)

          by fatphil ( 181876 )
          We are told (QI?) that US public phone booths do not have doors because a door would create a reasonable expectation of privacy. The implication is that if since that decision was made, you make a phone call from such a booth, all information about it is fair game to whomever. So your use of telecoms facilities has never been particularly private. (Personally, from that superficial summary above I think even Smith v. Maryland has gone too far. Why was there no warrant? Would that have required too much poli

  • leaving both individuals and corporations uncertain of whether their phone calls, online activity or even data stored in the cloud will ultimately be shielded by U.S. laws protecting property, privacy or search and seizure by law-enforcement agencies.

    If after all that has happened someone is still uncertain about this, then i'm quite certain that something is wrong with his/her cognitive abilities.

  • The technical is more important than the legal... (Score:3)

    by dtjohnson ( 102237 ) on Saturday December 28, 2013 @02:58PM (#45807171)
    Pitting the two legal 'sides' against each other in a figurative battle and commenting on the results (as TFA does) is missing the point completely. We live in a time when the technical capabilities and resources for surveillance have become so much more powerful than those of privacy than, in effect, window blinds and draperies no longer exist and we are all unintentionally parading around in front of uncovered windows without any clothing. To put it another way, governments will monitor all communications for no other reason than that they can. Even if the NSA is stopped, you can be sure than every other country in the world either has its own program underway or is in the process of rapidly doing so. You should assume that someone somewhere is logging your calls, surveying your internet traffic, gathering your voicemail data, recording your online banking profile and purchases, and so forth...because they can. This situation will not change until the technology available to defend yourself from digital intrusion catches up with the technology already available to the offense...and that might be a while yet.

    • Re: (Score:2)

      by MacDork ( 560499 )

      Pitting the two legal 'sides' against each other in a figurative battle and commenting on the results (as TFA does) is missing the point completely.

      Boy howdy. This judge ruled it's legal under sec 215 of the patriot act. The other judge ruled section 215 is unconstitutional. Both judges can be right.

      Imagine if the legislature passed a constitutional amendment instead of a law in 2001. They had the votes to do it. BTW, I agree with your conclusion. If the NSA isn't submitting broken encryption standards and bad commits, then someone else will. Even if they stop, this is the wake up call.

      If you aren't working on NSA proof apps/protocols now, you're wasti

  • It's a valid opinion (Score:5, Interesting)

    by WOOFYGOOFY ( 1334993 ) on Saturday December 28, 2013 @03:02PM (#45807199)

    It's just wrong, that's all. Wrong because our emails are *clearly* the "papers" mentioned in the Constitution. If there's a law that makes 3rd party possession of same somehow the equivalent of "it suddenly not being yours" then it's THAT law that has to go. This is how it is in most of Europe BTW. YOU control your phone records, not Verizon.

    I could almost live with TIA if I thought that it would only be accessed via a court order, but that's not what we have. What we have is secret FISA orders, executed in secret, using secret criteria in accord with secret interpretations of secret executive orders.

    I sympathize with this judge's concerns, I do, but the real world consequences of what they're doing are more likely to be worse than the real world consequences of stopping them from doing it, even if we have another 9-11 every year.

    Our democracy will not survive if the government can data mine all our "anonymous" data until programs it wrote decide that we fit a "profile" and THAT itself constitutes "reasonable suspicion". This can be used to stifle all dissent, and will be used for exactly that, starting, obviously, with people who speak out against the legitimacy of this process in the first place. A guy like Howard Zinn would just be destroyed by this.. we wouldn't have legitimate dissent in this nation.

    Here's something that should help people think clearly on this topic. The NSA line operators and management REFUSED to permit the NSA to apply the same level of monitoring to THEM as they apply to us. They didn't want Congress to second guess them or know what they were doing.

    (Binney) ".. also explained that NSA never developed and implemented technology in order to have the capabilities to track activities by employees on the agencyâ(TM)s systems because of two groups of people: the analysts and management.

    The analysts âoerealized that what that would be doing is monitoring everything they did and assessing what they were doing. They objected. They didnâ(TM)t want to be monitored.â

    Management resisted because it meant one would be âoeable to assess returns on all the programs around the world.â It would be possible to âoelay out all the programs in the world and map [them] against the spending and the return on investment.â

    It meant the agency would be âoeexposed to Congress for auditing,â Binney added.â Management did not want that."

    From:

    http://dissenter.firedoglake.com/2013/12/27/interview-with-nsa-whistleblower-bill-binney-afraid-were-spreading-secret-government-around-world/ [firedoglake.com]

    But this is the ONE thing that MUST be implemented. If an NSA operator cuts a fart, I want Congress to be able to know what he had for lunch. Unwatched watchers cannot be permitted to exist. Period.

    At the heart of what's going on here is the people at the NSA are looking into their own hearts and deciding that they're all right and the American public has nothing to fear from them or their intentions. Bully for them, I'm sure it's true, but they won't always be there.

    It's not about them or their intentions. It's about the institution, the process, *the machine* and how we're building that machine.

    You can't say to yourself, as an NSA employee, by way of assuaging your own secret apprehensions, "Well, if push ever does come to shove, if it came right down to it, an unconstitutional, openly fascist-level of abuse would just never happen because WE'D never permit it". At least, you can't tell yourself that and also bash guys like Snowden and Binney because THOSE guys , whom you hate so much they make you grind your teeth , they're exactly the hypothetical WE you posit in the above safeguard. It doesn't look any different that THIS .. THIS THIS that is before your ey

  • I say BS (Score:5, Interesting)

    by Anonymous Coward on Saturday December 28, 2013 @03:05PM (#45807211)

    "The decision of a New York judge that the wholesale collection of cell-phone metadata by the National Security Agency is constitutional ties the score between pro- and anti-NSA forces at one victory apiece.

    I call BS. Nowhere in the article did the judge even mention the Constitution. From the information provided in the article, the judge is obviously either paid off or incompetent. He states that

    In the 54-page opinion issued in New York, Pauley said the sweeping program "represents the government's counter-punch" to eliminate al-Qaeda's terror network by connecting fragmented and fleeting communications.

    which has nothing to do with legally acquiring evidence or the Constitution, and

    "There is no evidence that the Government has used any of the bulk telephony metadata it collected for any purpose other than investigating and disrupting terrorist attacks," he wrote.

    which once again was irrelevant to the question before the court. Just because the government has NOT YET been caught using the data illegally has nothing to do with it being illegally acquired.

    The judge also quotes extensive justifications from the Patriot Act, which last I checked, is NOT part of the Constitution.

  • Does this mean I can get all of the metadata for calls made to and from the Whitehouse?

    Remember: No expectation of privacy -- which means that secrecy is a complete no-go..

  • the founder recognized the rights and DUTY of the people to put off Tyranny.
    Its not law, its more powerful than law, its the foundation and spirit of all legitimate law.

    With this that judge is up for being fired.... someone just need to do so...... Tell him he is fired.

    • Judges can be removed by Congress, that's it. Private citizens don't "fire" judges, or even try, unless they want to go to jail for threatening an officer of the court. If you don't like the way things turned out then write your Congressmen. That is the way things work.

  • The status of the law isn't all that different than it was 30 days ago. The only "win," defined as a finding that the NSA's activities may not be legal, is a preliminary injunction for two people, and the case has yet to be decided. That isn't a win yet. It is also unlikely that complainants in the suit winning the injunction will ultimately prevail upon appeal. You can read some informed legal commentary from an actual law professor here:

    Another Problem With Judge Leon’s NSA Opinion: Absolute vs. [volokh.com]

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