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  (Source: JeffParker/Florida Today)
Pair of opposing federal court decisions push issue towards the Supreme Court of the United States

A pair of decision in neighboring U.S. District federal courts has left the answer of U.S. National Security Agency (NSA) "spying" on Americans anything but clearly answered.

I. The Rulings -- Fact Cards

Here's the basics on the first ruling, in a case brought by a group of private citizens, including libertarian-leaning lawyer Larry Klayman, a member of the Republican party and founder of Judicial Watch:
  • Judge: U.S. District Judge Richard J. Leon

    Judge Leon
    [Image Source: Suffolk University Law School]

     
  • Age: 64
  • Nominated: Sept. 10, 2001 (one day before 9/11 terrorist attacks)
  • Nominating President: George Walker Bush (R)
  • Confirmed: Feb. 14, 2002
  • Court House: U.S. District Court for the U.S. District of Columbia (USDC-DCD)
  • Appeals Court: U.S. Court of Appeals for the D.C. Circuit (USAC-DC Cir.)
  • Scope of the Appeals Circuit: Washington D.C. (only)
  • Date of Injunction Ruling: 12/17
  • Ruling Length: 68 pages
  • Name: CV-13-0881 (RJL)
  • Outcome:
    Bulk "spying" on Americans appears to be illegal due to apparent violation of Fourth Amendment of the U.S. Constitution, pending appeal.
Here's the basics on the second ruling, in a case brought by the American Civil Liberties Union (ACLU) and its affiliates:
  • Judge: U.S. District Judge William H. Pauley III

    Judge Pauley
    [Image Source: GPB.org]

     
  • Age: 61
  • Nominated: May 21, 1998
  • Nominating President: William Jefferson "Bill" Clinton (D)
  • Confirmed: Feb. 14, 2002
  • Court House: U.S. District Court for the Southern District of New York (USDC-SDNY)
  • Appeals Court: U.S. Court of Appeals for the 2nd Circuit (USAC-2nd Cir.)
  • Scope of the Appeals Circuit: Connecticut, New York, and Vermont
  • Date of Injunction Ruling: 12/27
  • Ruling Length: 54 pages
  • Name: CV-13-3994 (WHP)
  • Outcome:
    Bulk "spying" on Americans was deemed legal as the Court almost wholly accepted the NSA's claims that its monitoring was responsible and did not constitute direct violations of privacy rights.  Hence the court claims it to be Constitutional

As you see, these rulings essentially contradict each other.  I'll dig into them below, providing you with the quotes and information you need to analyze each ruling.

II. Methodology -- Notes

I've uploaded the entire decision to Scribd, with some notes.  Note, I found an editable copy (via documents obtained by Steptoe & Johnson LLP).  Why is this important?

For those who actually want to read the ruling (which I encourage), you can freely search this form of the document and copy and paste text from it.  By contrast the version updloaded to the district court website is unfortunately based on images.  Hence it is not only slower to load, but it also can not be searched and the text is uncopyable.

III. Washington D.C. Circuit Ruling

i. Text


Washington Federal Judge: NSA "Spying on Americans" Appears to be Unconstitutional by jasonmick



ii. Fourth Amendment?

The key outcome of the ruling says:

The Court concludes that plaintiffs have standing to challenge the constitutionality of the Government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.  Accordingly, the Court will GRANT, in part, the Motion for Preliminary Injunction in Klayman I (with respect to Larry Klayman and Charles Strange only), and DENY the Motion for Preliminary Injunction in Klayman II. However, in view of the significant national security interests at stake in this case and the novelty of the constitutional issues, I will STAY my order pending appeal.

What does the Fourth Amendment say?

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.


We The People
There's warring feelings on the relevance of the Constiution in the digital age within both parties.
[Image Source: Jason Mick/DailyTech LLC]

The question hear appears to be whether collection of business records that U.S. citizens entrust with private business constitues a "search or seizure", particularly if those records aren't examined directly in most cases.  Further at stake is the questions of whether "wartime permissions" (under the "war on terrror") somehow overule Constitutional protections and whether bulk warrants that cover nearly all Americans are appropriate.

To be clear the Constitution and the founders never exactly covered this scenario, as it would be considered an insanely infeasible possibility in the 1780s for the government to issue a mass warrant covering all citizens of the Republic.  Judge Leon attempts to fill in this blank, discussing the spirit of the Constitution, writing:

The Fourth Amendment typically requires a neutral and detached authority be interposed between the police and the public, and it is offended by general warrants and laws that allow searches to be conducted indiscriminately and without regard to their connection with [a] crime under investigation.

I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on that degree of privacy that the Founders enshrined in the Fourth Amendment.

Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware the abridgement of freedom
of the people by gradual and silent encroachments by those in power, would be aghast.

In other words, he feels the Framers of the U.S. Constitution would feel the NSA data mining was pricely the kind of mass search they had fought a bitter rebellion against their former colonial master to rid themselves of. 

iii. LOVEINT and "Accidents"

This argument is strengthen by scholarly writings.  For example, the Wikipedia entry for the Fourth Amendment states:

During what scholar William Cuddihy called the "colonial epidemic of general searches", the authorities possessed almost unlimited power to search for anything at any time, with very little oversight.

It's hard to argue that the NSA agents possess unlimited power of search (in some sense), with very little oversight.  However, you coulda argue the power is limited by the current policy which requires efforts to search the data set (of all American's phone calls, unencrypted internet traffic) receive multiple approvals (more on this later).  You could also argue there is some oversight via the Senate Select Committee on Intelligence and internal audits within the intelligence agencies.  You could also argue there were similar mechanisms of oversight in the British Empire, hence demonstrating their insufficiency.

NSA Loveint
Eight NSA officials spied on former lovers since 2006.  But none of these so-called "LOVEINT" offenders was prosected for stalking their exes. [Image Source: Fox News]

Likewise you could argue that incidents -- such as twelve incidents of admitted personal spying (8 of which were so-called "LOVEINT" on ex-spouses, ex-girlfriends, etc.) is evidence of sufficient oversight.  Or you could argue that the fact that none of the agents were prosecuted for this apparently clearly illegal activity, and that only 6 out of 12 lost their job, as evidence of insufficient oversight.

Then there's the 3,000+ reports of violations of protocol last year, a number the NSA blames on "typos" and such.  In other words, the NSA attempts to classify violations of the law as either "accidents" (common, by its accounting) or "serious violations" (uncommon, by its accounting).  In the former case the NSA argues its employees should not be accountable for "accidentally breaking the law".

But such rhetoric seems a double standard as most Americans don't receive clemency if they "accidentally" break laws.  And one must wonder whether some serious violations have gone overlooked amid the dozens of weekly violations.  And one must wonder whether such a system can possibly be considered respectful of Fourth Amendment protections.

iv. What About "No Expectation of Privacy?"

The court takes note of the 1979 U.S. Supreme Court ruling Smith v. Maryland, 442 U.S. 735.  Some are arguing that decision authorizes blanket spying.  It's easy to see where this comes from -- both involve phones and privacy.

The 1979 case involves the collection of evidence from a phone number logging (a so-called "pen register) device.  The evidence gathered from the device, which was installed without warrant via a cooperating phone service provider, was used to convict Michael Lee Smith of robbery.  In a narrow 5-to-4 ruling the majority wrote:

Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed.

Obama Big Brother
Judge Leon suggests that in 1979 technology did not allow Big Brother to reach very far, but today it allows near limitless powers of surveillance to the police state.  [Image Source: Fits News]

 
But Judge Leon suggests that comparisons of that case to the current spying debate are tenuous at best, as the circumstances and scope of the surveillance are very different.  He writes:

The almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.

In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. See Smith, 442 U.S. at 737. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction.

By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future." Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring). And these technologies are "cheap in comparison to conventional surveillance techniques and, by design, proceed[] surreptitiously," thereby "evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police ... resources and community hostility." Id.
 
In other words recent Supreme Court decisions in the present context have gone back on the precedent set by Smith already, based on the difference in the scope of technology.

v. The Grand Security Blanket

Perhaps Judge Leon's most stinging rebuke of the NSA program, though, comes from his analysis of its usefulness.

After risking American civil liberties and spending hundreds of billions in taxpayer funding via questionable contractor payouts to special interest donors, some good must have come out of the spying surely?

Not so, says Judge Leon.  He comments:

The Government frets that such an order "could ultimately have a degrading effect on the utility of the program if an injunction in this case precipitated successful requests for such relief by other litigants." Govt.'s Opp'n at 65 (citing Shea Decl ~ 65). For reasons already explained, I am not convinced at this point in the litigation that the NSA's database has ever truly served the purpose of rapidly identifying terrorists in timesensitive investigations, and so I am certainly not convinced that the removal of two
individuals from the database will "degrade" the program in any meaningful sense.
 
That's pretty damning.

But it's perhaps a fairly objective review, given the NSA's sliding claims of exactly what its spying has prevented.  In a recent Senate hearing retiring/resigning NSA Director, General Keith Alexander admit that he was not being forthcoming when telling members of Congress that FISA ordered spying had "help stop" 54 assassination attempts or "terrorist plots".

By his revised numbers, the figure shrank by more than an order of magnitude.  The embattled agency director now told Congress that he believed the spying program "possibly" stopped two efforts, which he stopped short of calling full blown attack plots.  But he was unable to produce any evidence -- on the record -- that these efforts/plots would not have been discovered and stopped without spying on Americans.

terrorists
The NSA has caught 54 ... whoops, "maybe 2" terrorists. [Image Source: Mashable]

So it's clear that the spying program has stopped next to nothing terrorism wise, and "next to" may be about to leave town.

IV. Southern District of New York Circuit Ruling

i. Text

New York Federal Judge: NSA "Spying on Americans" Appears to be Constitutional by jasonmick



ii. Could NSA Spying Have Prevented 9/11? At Least One Judge Thinks So

Judge Pauley weaves a fascinating tale, as told to him by intelligence agency lawyers in testimony.  He writes:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency ("NSA") intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier.

Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau oflnvestigation ("FBI") of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.

The Government learned from its mistake and adapted to confront a new enemy: a terror network capable of orchestrating attacks across the world.  It launched a number of counter-measures, including a bulk telephony metadata collection program-a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.

This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people's associations with one another.

The natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government's bulk telephony metadata collection program. Edward Snowden's unauthorized disclosure of Foreign Intelligence Surveillance Court ("FISC") orders has provoked a public debate and this litigation. While robust discussions are underway across the nation, in Congress, and at the White House, the question for this Court is whether the Government's bulk telephony metadata program is lawful. This Court finds it is. But the question of whether that program should be conducted is for the other two coordinate branches
of Government to decide.

The American Civil Liberties Union, the American Civil Liberties Union
Foundation, the New York Civil Liberties Union, and the New York Civil Liberties Foundation (collectively, "the ACLU" or Plaintiffs) bring this action challenging the legality ofthe NSA's telephony metadata collection program. James R. Clapper, the Director of National Intelligence; Keith B. Alexander, the Director ofNSA and Chief of the Central Security Service; Charles T. Hagel, the Secretary of Defense; Eric H. Holder, the Attorney General of the United States; and James B. Corney, the Director of the FBI (collectively, "Defendants" or the "Government") are Executive Branch Department and Agency heads involved with the bulk telephony metadata collection program.

The ACLU moves for a preliminary injunction and the Government moves to dismiss the complaint. For the reasons that follow, this Court grants the Government's motion to dismiss and denies the ACLU's motion for a preliminary injunction.

From the start the ruling by Judge Pauley clearly stretches the bounds of plausability a bit, by making the highly questionable suggestion that massing spying on Americans could have prevented the 9/11 Attacks. 

One big reason that is hard to believe is the Boston Marathon bombings of April 15, 2013.  Here you had a near identical scenario -- terrorism suspects that were on the radar thanks to Russian intelligence, yet their phone records went largely overlooked even as agents were off merrily cyber-stalking their exes.

Boston Bombing
As they say "the proof is in the pudding": the NSA spying failed to stop the Boston Bombing, for all its civil liberty sacrifices. [Image Source: Hastac]

As Judge Leon previously stated it is unclear exactly what attacks have been stopped by the program.  Thus Judge Pauley appears to be operating on the same premise that Congress long operated on -- assuming that the NSA program must have results, even though there's no way of knowing as those results are secret.  But given the NSA's retraction of 52 out of 54 claims of "stopped terrorist attacks", it's substantially less excusable for Judge Pauley to operate on such blind faith, as the evidence is in the public domain.

Perhaps he had some sort of privileged evidence that Congress and the public weren't entitled to.  But if he does, he failed to clarify it in the court case.

iii. Program Collects Everything... or Wait, it Doesn't... Maybe the Judge is Confused

Aside from the logical leap from "might have" to "would provide", the ruling also repeatedly seems to contradict itself, first saying that collecting "everything" is the only way the program can work, then claiming later that the program does not collect everything.

For example, Judge Pauley states:

"Telephony metadata" includes, as to each call, the telephone numbers that placed and received the call, the date, time, and duration of the call, other session-identifying information (for example, International Mobile Subscriber Identity number, International Mobile station Equipment Identity number, et cetera), trunk identifier, and any telephone calling card number. See Decl. of Teresa H. Shea, Director of the Signals Intelligence Directorate, NSA, dated Oct. 1, 2013, ~ 15 (ECF No. 63); Secondary Order at 2.

It does not include the content of any call, the name, address, or financial information of parties to the call, or any cell site location information. See Shea Decl. ~ 15; Secondary Order at 2. In response to the unauthorized disclosure of the Secondary Order, the Government acknowledged that since May 2006, it has collected this infonnation for substantially every telephone call in the United States, including calls between the United States arid a foreign country and calls entirely within the United States. See Shea Decl. ~ 13; White Paper at 3.

So which is it?  Is it collects "everything"?  Or is it collects less than everything so as to "not include the ... name, address..." etc.?  Surely it cannot be both.

This is one example of where the wording in the ruling stumbles in its own attempt to characterize and justify the NSA's behavior.

Sources: U.S. District Court for the U.S. District of Columbia , U.S. District Court for the Southern District of New York





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