Strike One for the NSA

[hardblue.livejournal.com]

WASHINGTON — A federal district judge ruled on Monday that the National Security Agency program that is systematically keeping records of all Americans’ phone calls most likely violates the Constitution, describing its technology as “almost Orwellian” and suggesting that James Madison would be “aghast” to learn that the government was encroaching on liberty in such a way.

-- NYT

This may only prove to be a legal speed bump, but it's at interesting note.

Comments

[trog.livejournal.com]

I'm sure Farchivist will explain to us how the NSA is not violating the constitution.

[hardblue.livejournal.com]

Well, it is the 21st century. I imagine there is precious little
that would fail to shock the venerable James Madison.

[madscience.livejournal.com]

Or why the Constitution is obsolete.

[oslo.livejournal.com]

In the meantime, perhaps you could explain to us how it is?

[pacotelic.livejournal.com]

Illegal search and seizure without suspicion or warrant, for a couple of things.

[the-rukh.livejournal.com]

Who's property are they seizing?

[telemann.livejournal.com]

Your privacy.

[the-rukh.livejournal.com]

Well privacy isn't property. However, right to privacy is a better argument than search and seizure. Its the same argument thats been made for tapping phone lines. How much privacy can people expect of something they send out to a company to broadcast across the wires to everywhere? That's the debate to be had. Do you own your data packets? Etc.

[telemann.livejournal.com]

So say for whatever reasons, police suspected you of criminal activity and put a GPS tracking device on your car for a period of time, do you think that's an invasion of privacy?

[enders-shadow.livejournal.com]

Courts have ruled on that already, but you probably knew that and were asking a question you knew the answer to....

[telemann.livejournal.com]

Not really, chap. I was asking *them*

[enders-shadow.livejournal.com]

So did you not know that courts ruled on it?
Or do you think Rukh has a better legal understanding than the judge(s) who made the ruling(s) regarding such actual events?

Or did you merely want to get Rukhs personal answer to compare it to the learned judges who have already ruled on such matters?

[telemann.livejournal.com]

[enders-shadow.livejournal.com]

Do you have a stockpile of gifs, or do you go looking for one when you decide to stop using your words?

[telemann.livejournal.com]

I Amazon Prime them!

[yes-justice.livejournal.com]

You got to admit that one was pretty cute.

[the-rukh.livejournal.com]

I'm undecided. I know how the ruling went, but would I want the police to sneak a gps tracker on my car? Probably not.

[telemann.livejournal.com]

If you get a chance, read the ruling, it provides a lot of important context, and it's extremely readable. He provided a lot of case law for the decision he reached. And court ruled recently (as Ender's alluded to) 9-0 that police can NOT use a GPS device on a car to track you, because it's a violation of privacy. Those types of majorities are almost unheard of.

[oslo.livejournal.com]

Oh, handwavey lawyering, then.

We have a right to be free from "unreasonable searches." What are those? To be specific, what has to be true of an act for it to be a "search" within the meaning of the Fourth Amendment? And what makes such acts "reasonable" or not?

Similarly, we have a right to be free from "unreasonable seizures." What counts as a "seizure," and how does the NSA program fall within the scope of a "seizure," much less an "unreasonable" one?

The reason why this issue isn't more cut-and-dry is that, constitutionally speaking and in light of what the Supreme Court has said the actual terms used by the Fourth Amendment actually mean, what the NSA program is doing isn't constitutionally distinct from a police officer tracking the movements of people through a public plaza downtown in a major city. No one's being "searched," no one's reasonable expectations of privacy are being violated, nothing's being "seized."

Now, maybe none of that thinking ought to apply to the data-sweeping the NSA is doing. Maybe we have to say that modern technology is so powerful that the old way of thinking about the Fourth Amendment needs to be expanded beyond simplistic formulations of "reasonable expectations of privacy" - to what extent, who knows. But there's more to do here than to simply call what the NSA is doing a "search" and a "seizure" and leave it at that, because it's not at all clear that they are conducting what counts as a "search" or a "seizure" for Fourth Amendment purposes.

[madscience.livejournal.com]

So what you're saying is, the Federalists snuck weasel words into the Constitution so they could interpret it however they and their ideological descendants wanted.

I think we need a new Constitution that unambiguously locks the government down hard.

[oslo.livejournal.com]

So what you're saying is, the Federalists snuck weasel words into the Constitution so they could interpret it however they and their ideological descendants wanted.

*shrug* I guess that's one way of putting it.

I think we need a new Constitution that unambiguously locks the government down hard.

So let's try some drafting. Do you agree the NSA shouldn't do what it's doing? How would you go about preventing it, constitutionally?

[madscience.livejournal.com]

"So let's try some drafting."

Been thinking about it for years. Maybe it's about time to start writing.

[oslo.livejournal.com]

That's what I'm inviting you to do. I'm asking you how you would go about writing the provisions that you think would be needed.

[pacotelic.livejournal.com]

As a shorthand, how much did you love the NSA when Bush was the president?

[oslo.livejournal.com]

It's not a shorthand. It's a non sequitur in the form of a begged question that functions here as a tu quoque. So - good job, I guess?

Since I was a law student for at least part of the Bush era, I think I can say that I would have asked the same kinds of questions back then. It's not about defending a policy, an agency, or a president. It's about understanding how the law works.

[pacotelic.livejournal.com]

Do you think that the powers of the NSA are appropriate response and measure for the risk of terrorism?

How much of a risk do you think terrorism is?

[oslo.livejournal.com]

Do you think that the powers of the NSA are appropriate response and measure for the risk of terrorism?

No, I don't.

Do you want to return to the question of the NSA program's constitutionality, or should I surmise that you've lost interest?

[enders-shadow.livejournal.com]

Edward Snowden is a KGB plant, has got to be, the funniest thing that crazypants man has said.

[farchivist.livejournal.com]

Man?

[enders-shadow.livejournal.com]

I assume women are smarter than that.

[farchivist.livejournal.com]

I don't really need to. The article itself explained: "Though long and detailed, Judge Leon’s ruling is not a final judgment on the program, but rather a preliminary injunction to stop the collection of data about the plaintiffs while they pursued their case." You can read it yourself (http://www.nytimes.com/interactive/2013/12/17/us/politics/17nsa-ruling.html) The constitutionality has not yet been decided.

[fizzyland.livejournal.com]

Given the lack of accountability/oversight, I doubt that privacy violations will stop - didn't it take a whistleblower for this to even become known?

[hardblue.livejournal.com]

Yes, I don't think this even going to succeed as law.
National security gets a lot of leeway.

[telemann.livejournal.com]

It's a fantastic ruling. I couldn't be happier.

[hardblue.livejournal.com]

The ruling sounds very pretty,
but how forceful it will be
remains to be seen.

[telemann.livejournal.com]

Yeah, that's true for a lot of lower court rulings, this is still exceptional for a lot of reasons, and I'm happy about those.