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The Courts Government Privacy United States

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

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

    by CrimsonAvenger ( 580665 ) on Wednesday September 03, 2014 @06:44AM (#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.

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

    by StormReaver ( 59959 ) on Wednesday September 03, 2014 @07:05AM (#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:It's amazing (Score:2, Interesting)

    by v1 ( 525388 ) on Wednesday September 03, 2014 @07:45AM (#47815441) Homepage Journal

    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:In other news.... (Score:5, Interesting)

    by turp182 ( 1020263 ) on Wednesday September 03, 2014 @09:33AM (#47816027) Journal

    You appear to be correct, there was likely a draft and it was on the books about 6 weeks after 9/11.

    9/11/2001 was the hijackings. The USA PATRIOT Act was introduced on October 23rd, 2001, passed the House on the 24th, passed the Senate on the 25th, and was signed by George W. Bush on the 26th. So about 6 weeks from the event.

    http://en.wikipedia.org/wiki/P... [wikipedia.org]

    The bill was 131 pages, creating or amending some 100 laws/sections.

    Text (and original bill PDF): https://www.govtrack.us/congre... [govtrack.us]

    Someone had to have a draft prepared ahead of 9/11. I would bet it was probably drawn up from the neo-con PNAC report "Rebuilding America's Defenses", which was released in September 2000. The document even referred to "a new Pearl Harbor": Section V of Rebuilding America's Defenses, entitled "Creating Tomorrow's Dominant Force", includes the sentence: "Further, the process of transformation, even if it brings revolutionary change, is likely to be a long one, absent some catastrophic and catalyzing event––like a new Pearl Harbor". PNAC was a pretty scary and very powerful group (Bush appointed about 20 people from the group to positions in his administration).

    http://en.wikipedia.org/wiki/P... [wikipedia.org]

  • by fyngyrz ( 762201 ) on Wednesday September 03, 2014 @02:04PM (#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.

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