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United States Communications Government Privacy The Courts Your Rights Online

US Appeals Court Says NSA Phone Surveillance Is Not Authorized By Congress 237

New submitter IronOxen writes: A panel of three federal judges for the second circuit overturned an earlier ruling. The court has ruled that the bulk collection of telephone metadata is unlawful, in a landmark decision that clears the way for a full legal challenge against the National Security Agency: "'We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,' concluded their judgement." That's not exactly saying that such bulk collection is unconscionable or per se unconstitutional, but it's a major step toward respecting privacy as a default.
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US Appeals Court Says NSA Phone Surveillance Is Not Authorized By Congress

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  • by gurps_npc ( 621217 ) on Thursday May 07, 2015 @11:06AM (#49638537) Homepage
    It means that they personally are at fault, rather than that Congress overstepped it's authority.
    • by Noah Haders ( 3621429 ) on Thursday May 07, 2015 @11:13AM (#49638623)

      No, not authorized is a lighter ruling. It means tomorrow congress can pass a law explicitly allowing it, and there would be no problem cuz it wasn't ruled unconstitutional.

      • For Congres, it is lighter but the behavior of the NSA is worse. It's the difference between you Comcast creating a rule that lets them illegally overcharge everyone and keeping the money versus a lower level employee overcharging everyone.
        • by ron_ivi ( 607351 )

          for congress ... behavior of the nsa ...

          The whole thing is silly because it's re-directing the focus to a tiny subset of some archaic historical communication system (phone call metadata).

          It's like saying that they shouldn't get to make maps of smoke signal fire pit locations.

          This is all just to distract people from their bulk collection of internet communications; and giving politicians an opportunity to say "see, I'm tough on privacy" without actually accomplishing anything significant.

          • The whole thing is silly because it's re-directing the focus to a tiny subset of some archaic historical communication system (phone call metadata).

            What's silly about it? Much of the law is all about precedent. In this case, precedent says phone calls (and their metadata) are private, barring a judicial warrant. That's not silly at all... it's quite reasonable.

            It's like saying that they shouldn't get to make maps of smoke signal fire pit locations.

            It would only be like saying that if the smoke signals were invisible to everybody but the parties at either end plus the "smoke signal carrier", and the smoke signal conversations were therefore intended to be private.

            This is all just to distract people from their bulk collection of internet communications; and giving politicians an opportunity to say "see, I'm tough on privacy" without actually accomplishing anything significant.

            I disagree, since it's all part of the same conversation.

      • by Brett Buck ( 811747 ) on Thursday May 07, 2015 @11:38AM (#49638903)

        It doesn't mean that - it means that the status of the constitutionality is still open to question. This ruling takes no position on that, just that Congress did not authorize it. Congress could pass a law tomorrow authorizing it, THEN it could be challenged on grounds of constitutionality.

        • by DarkOx ( 621550 )

          IANAL but I look at it this way an activity isn't constitutional or unconstitutional, its legal or illegal; a law, order, process, or procedure could be unconstitutional. What the court said essentially is it does not consider the law Congress passed to authorize the activity.

          We don't know if Congress can authorize such an activity.

          • We don't know if Congress can authorize such an activity.

            I think you and GP are basically saying the same thing there: the court did not rule on the Constitutionality. It did not have to.

            I look at it this way an activity isn't constitutional or unconstitutional, its legal or illegal; a law, order, process, or procedure could be unconstitutional

            An activity can very definitely be unconstitutional. For example: if you're arrested and not read your rights before questioning, your Constitutional rights have been violated. It's not a procedure or policy to do so, nevertheless the officers involved engaged in an unconstitutional act.

      • don't worry, they'll order the NSA to stop right after a new TLA is spun up to take the program.

        • TLA: the Terrible Liars Agency.

          It can supplant the NSA, TSA, DHS, DOJ... hell, we might just make it the whole of the Obama administration.
      • by RavenLrD20k ( 311488 ) on Thursday May 07, 2015 @11:52AM (#49639055) Journal

        No, not authorized is a lighter ruling. It means tomorrow congress can pass a law explicitly allowing it, and there would be no problem cuz it wasn't ruled unconstitutional.

        Not authorized isn't a lighter ruling, it's a very damning ruling against the NSA, and it's the only ruling that can be made in this case simply for the reason that there was no law on the books where Congress gave authorization for the NSA to operate like this. To put it succinctly: The NSA was ruled to be operating outside the law... which effectively makes them criminals (won't be holding my breath for any actual prosecutions, though).

        Now, if Congress goes back and creates a law that Authorizes the NSA to operate in this manner, then the issue can be brought back to court for Judgement to be made on the constitutionality of the law. Then that verdict will hold a more permanent weight on the future of government surveillance and the kind of laws Congress is able to write around it.

        • by DarkOx ( 621550 )

          To put it succinctly: The NSA was ruled to be operating outside the law... which effectively makes them criminals

          Wait a moment. For the most part that which isn't illegal, is legal. What we prosecute the NSA for exactly? Misappropriation of funds, they used to build an unauthorized massive surveillance apparatus? Acting under the color of law, when they were requesting the records? Conspiracy of some kind?

          I am not really sure there is actually much to charge them with and what there is, although fairly serious, might be hard to prove.

          • Just like any government official, the patriots of the NSA have qualified immunity if they believed what they were doing was legal. The data collection program was re authorized every 90 days by a federal judge in the fisa court. This issue needs a blanket ruling on constitutionality. Like brown v. Board of education.

    • by AHuxley ( 892839 )
      Yes the wording is interesting. It will be not illegal again when the Patriot Act is renewed soon?
      The hop count and scope finally seems to be understood with the "they extend to every record that exists" (page 61).
  • by BrendaEM ( 871664 ) on Thursday May 07, 2015 @11:07AM (#49638553) Homepage

    Amendment IV

    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.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Remember that "Snowden" guy who got this ball rolling, and is now in exile because of it?

      Too bad there isn't anything we can do to help him out....

    • by jythie ( 914043 )
      Great.
      What is "unreasonable"?
      What is a "paper"?
      What is an "effects"?

      Things are only simple when one only considers the answers they want.
      • by H3lldr0p ( 40304 )

        Furthermore, what about all of the decisions that have been handed down since that was written? How do they play into what those three words mean?

        Meaning doesn't exist in a vacuum. There's so much more that goes into the law than just the words.

  • Yeah so? (Score:5, Insightful)

    by Anonymous Coward on Thursday May 07, 2015 @11:09AM (#49638569)

    Just because it's illegal or not authorized doesn't mean that they will stop. They'll simply continue and do their best to keep it hush hush

    • Re:Yeah so? (Score:5, Insightful)

      by random coward ( 527722 ) on Thursday May 07, 2015 @11:44AM (#49638963)

      Just because it's illegal or not authorized doesn't mean that they will stop. They'll simply continue and do their best to keep it hush hush

      This is true. It also severely erodes the rule of law. As more mundane average productive Americans realize that they're following the rules but the government isn't, and get screwed by it, they'll start to realize they should only follow the rules when they would get caught. This is a recipe for an uncivil society leading to a societal collapse.

      Or to paraphrase a saying from communist countries; They pretend to enforce the law and we'll pretend to follow the law.

      • by DarkOx ( 621550 )

        I would argue they have already show the rule of law to be an absolute joke.

        When senior officials at the White House argues "the law does not require us to make a formal determination as to whether a coup took place." so they can ignore restrictions on aid to Egypt you know the law is a joke.

        When the Treasury department rewrite bankruptcy law on the fly and over bond holder objections allows foreign investors to take a large stake in an American auto company because..jerbs.. you know the rule of law is a jo

  • The Real Question (Score:4, Insightful)

    by Sir_Eptishous ( 873977 ) on Thursday May 07, 2015 @11:10AM (#49638581) Homepage

    Senator Rand Paul, a Republican presidential candidate who has made opposition to overbroad surveillance central to his platform, tweeted: “The phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.”

    How fast would his attitude towards surveillance change if were elected president?

    • by Anonymous Coward on Thursday May 07, 2015 @11:19AM (#49638703)

      About as fast as Senator Obama's changed when he was elected president.

      • Bingo!
      • About as fast as Senator Obama's changed when he was elected president.

        Nailed it.

        • by DarkOx ( 621550 )

          Why do assume that because Obama is a two faced freckles asshole that Rand is?

          Rand has essentially spent his entire life watching his fathers political career be pretty severely constrained by rigid adherence to principles. Keep in mind, Slashdot aside, the NSA generally does better in opinion polls than Snowden. Paul is seeking to win a national election.

          Obama was running for office and said those things when the popular view was Iraq and all the stuff we were doing to fight terror were abusive acts by o

    • by cdrudge ( 68377 ) on Thursday May 07, 2015 @11:30AM (#49638809) Homepage

      Did you drive to work today? I bet you exceeded the speed limit at some point. Or possibly pushed the limits on that yellowish-red light you ran. Have you ever sang a non-public domain song without paying a royalty (including Happy Birthday)? Jaywalked? Failed to register and/or vaccinate your pet? Not changing your address when you move?

      Guess what. You're no longer law abiding. He doesn't have to change his attitude since he qualified his statement. If he said "the phone records of citizens are none of the NSA's business" then we can talk about his attitude if he were to be elected.

    • by jythie ( 914043 )
      Pretty fast.

      People tend to overestimate how powerful POTUS actually is. The bulk of the political power lies in various institutions, even within the executive branch, and the relationship between them and POTUS is much more like peers engaged in diplomacy than a leader giving commands.
    • Depends on what kind of blackmail the NSA has on him. If its as much as they had on Obama; damn fast. If he's had a squeaky clean life; then probably take a near death experience like Reagan's.
    • Senator Rand Paul, a Republican presidential candidate who has made opposition to overbroad surveillance central to his platform, tweeted: “The phone records of law abiding citizens are none of the NSA’s business! Pleased with the ruling this morning.”

      How fast would his attitude towards surveillance change if were elected president?

      Are you suggesting that it's best to elect someone who loves overly broad surveillance and despises the 4th amendment?

  • Snowden? (Score:5, Interesting)

    by Anonymous Coward on Thursday May 07, 2015 @11:21AM (#49638723)

    maybe now we can pardon Snowden?

    • Re:Snowden? (Score:5, Insightful)

      by NormHome ( 99305 ) on Thursday May 07, 2015 @11:32AM (#49638841)

      It would be nice, but don't count on it. The political machine is very angry at him and wants him made an example of.

    • maybe now we can pardon Snowden?

      That in itself would be illegal too
      https://www.reddit.com/r/Bitcoin/comments/31443f/donating_to_snowden_is_now_illegal_and_the_us

  • by MrKaos ( 858439 ) on Thursday May 07, 2015 @11:40AM (#49638925) Journal

    God bless America.*

    *Even though I firmly believe the separation of church and state is vital and I would in no way impose religion on anyone.

  • More likely a massive multi-branch "limited hangout" op.

  • Doesn't even work (Score:3, Insightful)

    by WillAffleckUW ( 858324 ) on Thursday May 07, 2015 @03:08PM (#49641359) Homepage Journal

    Seriously, the worst part is that it's doesn't achieve it's stated objectives.

    Intel gathered in Saudi Arabia, Yemen, Pakistan, Afghanistan and some other rogue states like Bahrain, yields actionable intel.

    Intel gathered in the US has somewhere around 99 percent false leads that hide the 1 percent we would have found if we only used the above intel instead, and then used specific warrant leads.

    That to me is the take home from this Illegal and Unconstitutional NSA data collection program.

  • ...except if you're not American, in which case you're still spied on, and no one is challenging that.

  • So who is going to jail over this?

    Somebody is at least losing their job, right?

  • Another rub on the Patriot Act, or rather the Patriot Act extension, is that it was not signed by the President. The extension bill was the first bill ever signed into law by the "autopen".

    Article I, Section 7 - Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who

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