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The Courts Communications Government Privacy United States

Federal Court Overturns Ruling That NSA Metadata Collection Was Illegal 151

New submitter captnjohnny1618 writes: NPR is reporting that an appeals court has overturned the decision that found the NSA's bulk data collection to be illegal. "Judges for the District of Columbia court of appeals found that the man who brought the case, conservative lawyer Larry Klayman, could not prove that his particular cellphone records had been swept up in NSA dragnets." The article clarifies that due to the recent passage of new laws governing how metadata is collected, this is of less significance than it would have otherwise been: "If you remember, after a fierce battle, both houses of Congress voted in favor of a law that lets phone companies keep that database, but still allows the government to query it for specific data. The three-judge panel of the United States Court of Appeals for the District of Columbia still decided to take on the case, because that new program doesn't begin until 180 days after the date that law was enacted (June 2, 2015.)" On top of that, the injunction from the earlier ruling never actually went into effect. Still, it seems like an important ruling to me: a government agency was willfully and directly violating the rights of the Americans (and international citizens as well) and now it's just going to get shrugged off?
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Federal Court Overturns Ruling That NSA Metadata Collection Was Illegal

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    • Well, it's not 'just' shrugged off -- this is the great US legal system. If a Federal appeals court judge should shrug, it is because s/he shrugs with the shoulders of giants.

  • by Anonymous Coward

    You can't prove that the illegal activity affect you, so it's not illegal?

    What the actual fuck?

    • Re: (Score:3, Informative)

      Apparently only the 'victim' has standing to make a case, not a mere witness.

      • by ClickOnThis ( 137803 ) on Friday August 28, 2015 @12:37PM (#50410909) Journal

        Apparently only the 'victim' has standing to make a case, not a mere witness.

        I think it has always been that way. [wikipedia.org]

        • Weird isn't it? If I witness a crime and fail to report it, I can get in trouble. But this? WTF? I mean, if a witness has no standing, then his testimony should be worthless.

          • by Curunir_wolf ( 588405 ) on Friday August 28, 2015 @12:47PM (#50410987) Homepage Journal

            Weird isn't it? If I witness a crime and fail to report it, I can get in trouble. But this? WTF? I mean, if a witness has no standing, then his testimony should be worthless.

            As a victim of the State, you must prove harm to have standing for redress court. However, the State has no obligation to prove ANY harm to ANYONE to have standing to prosecute YOU.

            Seems fair.

            • It's the mafia defense. If nobody talks, everybody walks.

            • The US government has Sovereign immunity [wikipedia.org]. In some cases the government allows itself to get sued [wikipedia.org], as an act of kindness from congress to people who were hurt by the government. There are other complications, but that's the basic principle.
              • That has nothing to do with it. Sovereign immunity is almost never invoked, because it is unnecessary with the system rigged the way it is. And besides, as long as you can show standing, suits involving Constitutional violations cannot be subject to sovereign immunity - it's part of the Ninth Amendment. Note that this particular suit names several federal agencies, executive officials (ALWAYS subject to torts for Constitutional rights violations), as well as the telecommunications and ISPs involved in th

          • by tsotha ( 720379 )

            Civil and Criminal courts are two very different arenas. "Standing" in criminal court really isn't a thing.

            Standing rules prevent random people from tying up the courts suing over things that don't affect them. They're really a necessary part of the system that most people don't think about. Non-newsworthy lawsuits are rejected all the time for lack of standing.

            Of course, lawsuits that really should be going forward (like this one or the appeal by CA voters over Prop 8) are sometimes rejected on stan

        • by QRDeNameland ( 873957 ) on Friday August 28, 2015 @12:48PM (#50411001)
          The problem is that since it is a secret gov't program, no one can actually prove they have standing. In other words, it is legally unassailable by design.
        • Re: (Score:2, Informative)

          by Anonymous Coward

          Apparently only the 'victim' has standing to make a case, not a mere witness.

          I think it has always been that way. [wikipedia.org]

          No, not always [wikipedia.org]

      • by 0123456 ( 636235 )

        Apparently only the 'victim' has standing to make a case, not a mere witness.

        So I guess it's open season for murder, then.

    • by HiThere ( 15173 )

      This is their standard way to avoid prosecution for illegal activity.

      It's like the King of Id's golden rule "He who has the gold make the rules." only in both cases power should be substituted for gold.

  • No proof, no proof (Score:5, Interesting)

    by phorm ( 591458 ) on Friday August 28, 2015 @12:21PM (#50410739) Journal

    1. Can't prove that you were affected because you can't get the records.
    2. Can't get the records because they're either "classified" or they just don't answer FOIA requests
    3. Can't get them declassified or revealed because you need to go to court
    4. Can't go to court because you don't have evidence you were affected.
    5. GOTO 1

    • by TheCarp ( 96830 ) <sjc AT carpanet DOT net> on Friday August 28, 2015 @12:58PM (#50411079) Homepage

      Should be an interesting test of the Supreme court. As I understand the Roe V Wade decision had some pretty similar arguments. A lot of it came down to an issue of standing and it was determined that, while by normal standings rules, a person denied an abortion would not have standing to bring a case until injured, but if a pregnancy was life threatening, that would be an effective denial of right to sue.

      This seems very little different to me....it is effectively a denial of right to redress of grievance if a person must prove standing in order to grieve while simultaneously needing to grieve in order to prove standing.

      Not much different, seems to me they have to rule on the side of standings. I don't see why the government itself should be considered as an entity which cannot be compelled to self incriminate, it is not a person; and it is the entity which all such rights are intended to protect against the abuses of.

      I would say a guilty government has a DUTY to self incriminate.

      • by ahodgson ( 74077 )

        The current court has proven there are no linguistic hurdles they won't leap to validate the administration's statist overreaches.

        • by TheCarp ( 96830 )

          Which is of course why I called it a test of the court and not a question for them. I have little faith they will pass.

      • The underlying problem is the Government doesn't want to follow the law, and have the means to avoid doing so.
      • by Agripa ( 139780 )

        Should be an interesting test of the Supreme court. As I understand the Roe V Wade decision had some pretty similar arguments. A lot of it came down to an issue of standing and it was determined that, while by normal standings rules, a person denied an abortion would not have standing to bring a case until injured, but if a pregnancy was life threatening, that would be an effective denial of right to sue.

        The term is "capable of repetition, yet evading review".

        https://en.wikipedia.org/wiki/... [wikipedia.org]

    • So... the government can do any unconstitutional thing it wants as long as no individual has standing to contest it.

      • Re: (Score:3, Insightful)

        by sexconker ( 1179573 )

        The government doing anything unconstitutional automatically grants every citizen the right to sue.
        In fact, every citizen has the right to sue the government for anything, unconstitutional or not.
        Hell, every citizen has the right to sue the government for nothing.

        Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

        A lawsuit is nothing more than a legal petition for a redress of grievances.

        The court will determine the validity and extent of such grievances in a trial.
        The court absolutely cannot reject a case by presupposing the facts of the matter (are the gr

        • Yes, but that doesn't appear to be how they are operating. The court didn't take his grievance and make a determination about the legality of the governments actions. They only looked at the available proof of harm to the individual. I understand that approach is generally sensible, but it doesn't leave us the best options when we want to prove that a broad set of actions is unconstitutional without linking it's harm to a specific victim. I have to wonder how it would work out if we had a class action where

          • by phorm ( 591458 )

            I'm just waiting for the day of
            "well yes, we used billions of tax dollars to build ourselves a palace walled with gold featuring life-size cola and chocolate fountains. But you can't prove that they were *YOUR* specific tax dollars so you have no right to sue!"

      • and if they do, the individual disappears.

        Or in Snowden's case, makes himself disappear.

        If this does not prove police state, what does?

  • by Anonymous Coward

    Is the problem merely him not being able to prove he has standing? Could be simply get them to admit he does with a FOIA or other action? The NSA would have a conflict of interest giving material to prove that they did or didn't do it. Is there a third party that can sort this out in their place? NIST? Hell, give it to NASA to give them some more money. They need it, and their sysadmins might be bored.

  • by sycodon ( 149926 ) on Friday August 28, 2015 @12:21PM (#50410747)

    ...that Obama can stop this with a simple phone call. And he can make sure it doesn't happen again with a stroke of his E.O. Pen.

    • Whether he could stop this or not is not as clear as that. If an appointee requires Senate approval, the President cannot actually fire them. Now we move on to the concept of the E.O. more broadly. An E.O. is difficult to enforce as penalties have not been established. This creates a problem in enforcement when one cannot merely cut off funding.

      What the President can do is declassify just about anything. But the circular logic applied in this case itself shocks the conscience and thus should be removed from

      • by tnk1 ( 899206 )

        The President can fire any cabinet member at will even those requiring Senate approval. The Senate only comes into play when you try and hire a new cabinet member.

        There was a law about firing without Senate approval called the Tenure of Office act, but that was repealed in 1887.

        So yes, if he decided to fire an executive branch officer who disobeyed his directives, he totally could.

        • Not agency heads outside of the cabinet. For instance, the Director of the FBI is subject to a term of service. In other words, not any officer. This is to insulate such personnel from political pressure. I am sure there is a list, but I honestly don't have that list.
    • Whistleblower says NSA was wiretapping Obama since before he was a senator [youtu.be], so they pretty much have everything on him, or at least enough to let them do whatever the fsck they want.

    • ...that Obama can stop this with a simple phone call.

      Yep, her sure can. The fact that he hasn't in six+ years speaks volumes.

      And he can make sure it doesn't happen again with a stroke of his E.O. Pen.

      Umm, no. Actually he can't.

      Yes, he can make an Executive Order making this go away, if he chooses.

      Alas, the next President (or even Obama himself, afterwards) can make an Executive Order allowing this to restart. One President's Executive Orders are not binding on later Presidents if they choose to use t

  • by DoofusOfDeath ( 636671 ) on Friday August 28, 2015 @12:23PM (#50410773)

    " could not prove that his particular cellphone records had been swept up in NSA dragnets."

    U.S. federal judges, you are fucking cowards with your bullshit deference to executive-branch "privilege". You let the administration use bullshit tactics to pervert justice, and you use that as an excuse to not protect citizens' fundamental, Constitutionally enumerated rights. You demand that citizens prove that which cannot be proven without committing a crime, but let the administration just bleat "executive privilege" or "state secrets" or "it's for the kids", and consider that doing your job.

    Assholes.

    • by Foobar of Borg ( 690622 ) on Friday August 28, 2015 @12:36PM (#50410897)

      " could not prove that his particular cellphone records had been swept up in NSA dragnets."

      U.S. federal judges, you are fucking cowards with your bullshit deference to executive-branch "privilege". You let the administration use bullshit tactics to pervert justice, and you use that as an excuse to not protect citizens' fundamental, Constitutionally enumerated rights. You demand that citizens prove that which cannot be proven without committing a crime, but let the administration just bleat "executive privilege" or "state secrets" or "it's for the kids", and consider that doing your job.

      Assholes.

      They are not cowards. They are vile, complicit scumbags who want things to be this way.

    • So we've exhausted the soap box, the ballot box, and the jury box. Only one box is left.
  • by aaron4801 ( 3007881 ) on Friday August 28, 2015 @12:27PM (#50410809)
    Isn't the DC Court of Appeals sort of the equivalent of a State Supreme Court, with no jurisdiction outside DC? It get s a little confusing since it's still a federal court due to the nature of the District of Columbia, but I don't think this has any bearing on the 2nd Circuit ruling from a few months ago.
    It's unlikely it ever ends up before SCOTUS since it was swept under the rug legislatively, but let's not misunderstand this as a sweeping judicial approval of the program.
    • by tnk1 ( 899206 )

      You are right about the DC Court of Appeals, but the ruling in question is a ruling of the United States Court of Appeals for the District of Columbia Circuit, which is a US Federal Circuit Court of Appeal.

      So yes, this is a Circuit court opinion which will be resolved by the Supreme Court on appeal. And they are more likely (although not certain) to hear the appeal if there is a Circuit split involved.

      Sweeping may not be the word for it, but it is a very influential decision.

  • by mpoulton ( 689851 ) on Friday August 28, 2015 @12:30PM (#50410829)
    The appellate court explicitly did NOT "overturn" the district court's substantive finding that the program is unconstitutional. This ruling is procedural, and unrelated to the merits of the legal arguments about constitutionality of the NSA program. The court instead found that this particular plaintiff does not have standing to challenge the program in court. It's a very problematic ruling, raises a lot of issues, and in my opinion should be reversed - but it certainly does not overturn the lower court's finding that the program is unconstitutional as a matter of law.
    • It's a very problematic ruling, raises a lot of issues, and in my opinion should be reversed...

      I am interested in why it is problematic, and what issues it raises. In the interest of saving this article's comments from the hordes of "oh my god we're gonna die the NSA will be able to name our children due to this ruling!" can you elaborate? Thanks.

    • by Anonymous Coward

      "The appellate court explicitly did NOT "overturn" the district court's substantive finding that the program is unconstitutional. This ruling is procedural, and unrelated to the merits of the legal arguments about constitutionality of the NSA program."

      +1 for that part of your comment.

      "The court instead found that this particular plaintiff does not have standing to challenge the program in court."

      -1 for that part of your comment. They didn't rule that he didn't have standing (well, 1 of the 3 judges did, but

      • "The appellate court explicitly did NOT "overturn" the district court's substantive finding that the program is unconstitutional. This ruling is procedural, and unrelated to the merits of the legal arguments about constitutionality of the NSA program."

        +1 for that part of your comment.

        "The court instead found that this particular plaintiff does not have standing to challenge the program in court."

        -1 for that part of your comment. They didn't rule that he didn't have standing (well, 1 of the 3 judges did, but the majority did not), or that the trial can't proceed. They simply said that there's not enough evidence of standing shown in the pre-trial phase for an preliminary injunction (which they say requires a higher bar than the standing requirement needed to proceed with the trial). The trial can proceed, where more evidence can be obtained and presented.

        BTW - the latest empytwheel.net post highlights some brand new evidence showing that the plaintiff has standing.

        You're right. I oversimplified it. They found that, based on the record as it stands currently, there is not adequate evidence to show standing - but there might be later after more discovery. The case is not dismissed, the preliminary injunction is just denied.

        • So you are saying the only way to "Fix" this is for a courageous band of oddball hackers, led by a charismatic young man (who has a fashion model girlfriend) to hack into the computers of the NSA (lead by their genetically engineered clone of Hitler) and expose them to the world (involving a spectacular car chase).
    • What happened to the legal standard that new laws cannot be applied ex post facto?

      • What happened to the legal standard that new laws cannot be applied ex post facto?

        I don't understand how that relates to this situation. A prohibited ex post facto law is one which criminalizes or imposes a penalty for an act which occurred before the law was enacted. For example, a new law which raises your taxes for last year and makes you pay the difference now. Or a law which makes it a crime to have previously consumed alcohol before the law was passed. This does not seem related to the case at hand.

  • by QuietLagoon ( 813062 ) on Friday August 28, 2015 @12:30PM (#50410835)
    So long as we don't know about it, it is legal. Because if we don't know about it, then we cannot prove our data was gathered.

    .
    Sounds like good, self-serving logic for the NSA.

    • Given the fairly statist makeup of the supreme court I expect if this gets to them to have a similar ruling logic be damned. I still haven't' figured out logic behind the ACA ruling that first had to find that the penalty/tax was a penalty not a tax, and then in the same ruling, a mere few minutes later, find that it was instead a tax. That sort of incoherent ruling in my book means it is a bad ruling. I do understand the Roberts was the one who ruled differently on each part but he also wrote the majority
  • ... the industries effected and the public at large assumed nothing less would happen. The Feds generally have an attitude that if they CAN do a thing technically that they can do it legally.

  • by TheCarp ( 96830 ) <sjc AT carpanet DOT net> on Friday August 28, 2015 @12:52PM (#50411027) Homepage

    When a technicality of law provides an otherwise guilty individual to walk, that really is justice. Because the very principles of justice are about keeping state power in check.

    When the technicalities of law are used to prevent citizens from challenging state power, that is an absolute perversion of the spirit of the principle. That is NOT justice.

    • by tnk1 ( 899206 )

      No, that isn't justice, it is a bias against the possibility of injustice being worked on the innocent when due process and proper procedure is not employed or there is insufficient evidence.

      Justice for the guilty still remains due, we simply hold that it is better for a guilty man to walk free than an innocent man go to jail. Justice has been denied, but we accept the need for that against the possibility of ensuring perfect retaliation for all injust acts, which would allow a much lower standard of evide

      • by TheCarp ( 96830 )

        Well then I guess by your definition of justice, it is something I would never really care too much about, an insignificant and petty thing.

  • a government agency was willfully and directly violating the rights of the Americans (and international citizens as well) and now it's just going to get shrugged off?

    Apparently this person doesn't understand the process of appeals, and why it is important.

  • Legal Standing (Score:5, Interesting)

    by DarkOx ( 621550 ) on Friday August 28, 2015 @12:58PM (#50411073) Journal

    Another standing based evasion of the 4th amendment. As long has you have to prove a negative you have personally been the victim of a clandestine program or any government program for that matter the Constitution might as well be toilette paper.

    All they have to do is classify the records and its essentially game over.

    What we need to do is push for legislation that lowers the bar for legal standing in cases against the government. It should be very low. Once the program is proven to exist it should be open to challenge on the complain it violates any other laws or violates anyone's Constitutional rights. The fact that its supposed to be a government by the people and for the people, means that we the people should have automatic standing anytime the government is violated laws or the Constitution we the people enacted. The grounds should be a failure to lawfully govern, the harm being undermining societies faith in law.

    This is the only way we are going make any headway.

    • by tnk1 ( 899206 )

      There is always the consideration that lowering the bar tends to increase the caseload and thus, hinder the functioning of the courts, which can cause its own problems.

      There may well be a case for changing how standing is determined for certain specific cases like this, but this needs to be work done with a scalpel or you could hopelessly bog down the Federal court system.

    • by AHuxley ( 892839 )
      Yes the "All they have to do is classify the records and its essentially game over" is the method. Every legal output is then 'cleaned' with parallel construction.
      To get past the 4th amendment everyone doing the collect it all domestic surveillance is always told its just for foreigners.
      The key seems to be the:
      'But such is the nature of the government’s privileged control over certain classes of information. Plaintiffs must realize that secrecy is yet another form of regulation, prescribing not
    • by chihowa ( 366380 )

      This approach could go a long way to protecting some pretty heinous hypothetical government abuses. People could be disappeared and, as long as they didn't have family that could claim damages, the government could claim that nobody has standing to challenge the practice. This is a very dangerous line of reasoning.

  • by Lumpy ( 12016 ) on Friday August 28, 2015 @01:06PM (#50411153) Homepage

    Only the fools think there is "freedom" here in the USA.

    • Only the fools think there is "freedom" here in the USA.

      Theres heaps of freedom in the USA if you have the money to pay for it! Thats the market at work!

  • Sure it's illegal for the NSA to use it to force the judge to rule that way, but that has never stopped them in the past.

    Subvert, destroy, confuse. Supposed to be the enemy, but used against the USA more than our real enemies.

  • international citizens

    International citizens have rights in US courts?

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