backtop


Print 55 comment(s) - last by EricMartello.. on Jan 6 at 2:36 AM


  (Source: Quick Meme)
But court lifts previous ban on suing the government over warrantless wiretapping campaigns

If you have a problem with federal warrantless wiretapping campaigns, sue the government, not the telecoms.

That was the key message in the Thursday ruling handed down by the 9th U.S. Circuit Court of Appeals, a federal appeals court that covers high profile cases appealed in nine western states, including California.

I. EFF is Greenlit for Class Action Against the NSA

The decision was still a quasi-victory for the Electronic Frontier Foundation (EFF), who was leading the push against the warrantless wiretaps, at it prevents the most sweeping of protections on the domestic surveillance system, giving U.S. citizens at least one avenue to challenge the campaigns in court.

The EFF was less-than-thrilled that the court upheld the immunity for telecoms who served as the government's accomplices, helping federal agents spy on their customers.   The telecom immunity was granted by the "Protect America Act" of 2007 (Pub.L. 110-55S. 1927).

The EFF was seeking class action status for a lawsuit against AT&T, Inc. (T) and the U.S. National Security Agency (NSA).  The EFF accuses AT&T of conspiring with the NSA to divert its customers voice, SMS, and internet traffic into special secure rooms at its facility across the country, giving the NSA the ability to freely snoop on whatever private communications they pleased.

The operation was called "an unprecedented suspicionless general search" by the EFF, which accused it of being unconstitutional, based on the Fourth Amendment to the U.S. Constitution (part of the Bill of Rights), which states:

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.

II. Lower Court Ruling is Partially Reversed, Telecom Immunity Restored

A lower court had granted the EFF permission to go ahead with a class action lawsuit against AT&T and NSA, prompting the U.S. Department of Justice (DOJ) to appeal to the 9th Circuit.

The 9th Circuit's decision partially reversed the lower court's ruling.  Unlike the lower court, it ruled that the government granting immunity to its business accomplices was Constitutional.  However, it refused the DOJ's request that the federal government also be made immune on "state secrets" grounds, saying lawsuits against the government were the place to challenge the Constitutionality of such programs.

Gavel
[Image Source: Minding the Media]

Judge Margaret McKeown, a member of the three-judge appeals panel, writes (PDF; pg. 21589), "The federal courts remain a forum to consider the constitutionality of the wiretapping scheme and other claims."

The differentiation was an interesting one, in that it dealt a partial victory, partial loss to both the DOJ and EFF.  

It is important to note that the Appeals Court did not deliver an opinion on the legality of the warrantless wiretaps themselves.

III.  Most 2012 Presidential Candidates Support Warrantless Spying

The irony of the Protect America Act was that it modified the Foreign Intelligence Surveillance Act of 1978 ("FISA" Pub.L. (Public Law) 95-511, 92 Stat. (Statute at large) 1783, enacted October 25, 1978, 50 U.S.C. ch.36S. 1566) installing the kind of unregulated surveillance permissions that the FISA was originally designed to block at the time of its post-Watergate passage.

The FISA's original authors recognized the danger of abuse if unregulated wiretaps were granted to federal officials and police.  After, all at least one U.S. President -- Richard Nixon (R) -- used such powers to spy on his political rivals.

Despite the strict FISA President George W. Bush (R) openly defied the law in the post 9-11 (2001) era, resuming warrantless wiretapping. President Bush convinced Congress to retroactively legalize the effort by modifying the FISA.  With Congress's weight behind the unregulated domestic spying effort the President gained the unregulated spying power that had once led to the impeachment of President Nixon.

When new President Barack Obama took office, he promised reform and to cut back on the warrantless spying, but once elected that "hope" turned to "nope" as President Obama proved remarked "Bush-like" and pushed to expand the program and vigorously defend the immunity for cooperative telecoms.

Bush and Obama
President Obama and his predecessor President Bush agree on many things, including that the federal government should be granted unregulated spying on its citizens.
[Image Source: WhiteHouse.gov]

It appears unlikely that the warrantless monitoring is going anywhere, anytime soon.  Aside from President Obama support, most of the leading Republican candidates appear supportive of the practice, with many voting to support President Bush with the Protect America Act.  Of the major candidates, the only one who has voiced major concerns about the federal spying is Ron Paul (R).

Bachmann and Paul
Minn. Rep and Tea Party chief Michele Bachmann supports unregulated, warrantless federal wiretapping.  Ron Paul is the only major presidential candidate to oppose it.
[Image Source: Bachmann.House.gov (left) and RonPaul.com (right)]

It is unknown exactly how many telecoms participated in the government's plot to spy on citizens.  However all three of America's largest cellular carriers -- AT&T; Sprint Nextel Corp. (S); and Verizon Wireless, the joint venture between Verizon Communications  Inc. (VZ) and Vodafone Group Plc. (LON:VOD)  -- were all listed as defendants in the EFF suit.

They are now free to resume helping President Obama and Congress spy on American citizens without warrant, without having to be legal responsible for their actions.

The EFF is contemplating whether to appeal the decision to restore the immunity provisions to a higher federal court.

Sources: 9th Circuit Court of Appeals, EFF



Comments     Threshold


This article is over a month old, voting and posting comments is disabled

RE: Jason you just can't help yourself.
By Reclaimer77 on 1/2/2012 5:54:48 PM , Rating: -1
I'm having a hard time understanding this logic.

quote:
If for some reason Obama or Bush wanted to wiretap you, they easily could.


They ALWAYS could. Do you honestly believe that getting a warrant to wiretap me was anything but a ridiculous bit of procedure that got the green light every single time? As if any judge ever said "no" to a requested warrant for this? I seriously doubt it. Also, since I wouldn't be notified of the warrant in the first place, how has anything really changed from my point of view?

Or was I supposed to take comfort in the fact that somewhere a Federally appointed judge, getting paid by that same government, was pretending to "objectively" review that Government's request to wiretap some random citizen he doesn't give two flips about? Not only that, but I would never even realize this was happening in the first place. That kept us all warm and fuzzy at night?

quote:
Because there's no publicly available comprehensive records of the current wiretapping program


Was there ever? LOL Jason, what are you saying here? Like that kind of transparency EVER existed in our Government? As if Bush started it all? I can't figure out if you're being ultra-idealists or what.

quote:
Don't be silly and devolve this into a (R) vs. (D) debate.


Seems like the author has already planted those seeds :)

quote:
Both parties supported this nonsense.


I'm not convinced it was nonsense. Amazing what 11 years of hindsight and security will do. But as I recall it, at the time, there was REAL fear after 9-11 that more terrorists were here ready to enact their plans. Communicating, plotting, bla bla. I guess you've forgotten.

The real question is, after it's been made abundantly clear under the Obama administration that that isn't the case; why has Obama extended and expanded these programs?


RE: Jason you just can't help yourself.
By JasonMick (blog) on 1/2/2012 6:11:59 PM , Rating: 5
quote:
Seems like the author has already planted those seeds :)

No, you saw what you wanted to see. I talked about how Bush and Obama pushed warrantless wiretapping and you saw that as "It's Bush's fault." No seeds... both parties are equally culpable here.

quote:
They ALWAYS could. Do you honestly believe that getting a warrant to wiretap me was anything but a ridiculous bit of procedure that got the green light every single time? As if any judge ever said "no" to a requested warrant for this? I seriously doubt it. Also, since I wouldn't be notified of the warrant in the first place, how has anything really changed from my point of view?

Okay, but if the judge says "yes", now there's a court record, and if abuse is found (or if they circumvent the court as in Nixon's case) it is illegal and they can be kicked out of office. That's called due process.

I know it's tough, because due process has been getting trampled on for so long that some are forgetting what it is.

quote:
Was there ever? LOL Jason, what are you saying here? Like that kind of transparency EVER existed in our Government? As if Bush started it all? I can't figure out if you're being ultra-idealists or what.

You essentially are arguing that it doesn't matter whether warrantless wiretaps are illegal or legal because of the powerful individuals involved.

That is simply not true.

If it is illegal to circumvent the court (due process) system, then people will have much less fear of coming forward and whistleblowing, than under a system where it's not only legal to tap without warrant but illegal to disclose details about the tapping ("state secrets"). You are stubborn, but surely you can see this, right?

Nixon is the perfect example of how people are more likely to whistleblow when the law is on their side.

When you essentially make a criminal, unconstitutional assault on U.S. citizens' civil liberties the law and make it against the law to "snitch" on federal malfeasance people are far less likely to whistleblow.

quote:
I'm not convinced it was nonsense. Amazing what 11 years of hindsight and security will do. But as I recall it, at the time, there was REAL fear after 9-11 that more terrorists were here ready to enact their plans. Communicating, plotting, bla bla. I guess you've forgotten.

The real question is, after it's been made abundantly clear under the Obama administration that that isn't the case; why has Obama extended and expanded these programs?

"Sell not virtue to purchase wealth, nor Liberty to purchase power."
-Benjamin Franklin
(often paraphrased to "He who would trade liberty for some temporary security, deserves neither liberty nor security.")

QED

Supporting the government violating U.S. citizens' civil liberties in the name of anti-terrorism means that the terrorists have won. Only a truly terrorized society would trade its citizens' freedom for blind hope that "noble" federal politicians will use a blank check of authority to safeguard them.


RE: Jason you just can't help yourself.
By Reclaimer77 on 1/2/12, Rating: 0
RE: Jason you just can't help yourself.
By JasonMick (blog) on 1/2/2012 7:06:01 PM , Rating: 2
quote:
I'm not supporting anything. I'm being a realist. Nice job with the Ben Franklin quote, we haven't seen that one a billion times on this issue. People who usually use that quote are hypocrites, because they're all too willing to support temporary safety in exchange for liberties. Hell mandatory anti-texting laws are a perfect example of that. Or any number of mandates people support. Obamacare anyone? How about social security? Anti-smoking legislation? Oh that's right, smoke "hurts" people, so it nullifies that liberty. I forgot.

But I guess we only trot out old Ben Franklin on the big issues while we ignore the general erosion of our rights. Brother, I have WAY more things to worry about than the 0.00000000000000001% chance a phone-call might be listened in on. Hell the way things are going, I might not even have a job left for me and you're preaching about phantoms that come in the night.

I am personally opposed federal smoking bans/regulation and federal laws on driver distraction. The federal government doesn't need to play nanny.

(On the other hand I do believe in local self-governance, so if townships/counties/states want to pass such laws, then it's up to the people to pass them, and the people to overturn them.)

But it sure sounded like you're supporting warrantless wiretapping, given how ardently you're defending it.

quote:
Legality isn't the issue. The law was changed to make them legal, therefore they are legal. That's not my "argument" at all.

You're just blowing this out of proportion and editorializing. You act like making an international phone call to known terrorists is some huge "civil liberty". Come on man.

And it would be REALLY nice if you could possibly post on ANY topic without finding a way to pull the "Blame Bush" strategy.

Here's another famous quote for you:

The Constitution is not a suicide pact
-Abraham Lincoln

A man who, although idolized by many Americans, absolutely CRUSHED the Constitution and citizens rights. Ironic how over time hindsight can go either way.

Okay you've committed a number of logical fallacies in one fell swoop.

quote:
The Constitution is not a suicide pact
-Abraham Lincoln

A man who, although idolized by many Americans, absolutely CRUSHED the Constitution and citizens rights. Ironic how over time hindsight can go either way.

False clause/non-sequitir.

What does this have to do with preventing unregulated government spying?

I fail to see how Lincoln's quote or his presidential legacy have anything directly to do with the debate at hand.
quote:
You're just blowing this out of proportion and editorializing. You act like making an international phone call to known terrorists is some huge "civil liberty". Come on man.

Begging the question.

You assume that they're using wiretaps responsibly because they say they are, not because you have any evidence of it (because you don't have evidence of it, because they're warrantless).

quote:
Legality isn't the issue. The law was changed to make them legal, therefore they are legal. That's not my "argument" at all.

Irrelevant conclusion.

The debate here is over legality. That's why there's this pending lawsuit. The EFF contends the wiretaps are illegal; the DOJ/NSA contend they are not. Don't try to disguise the issue at hand.

If wiretaps are illegal we'd be having an entirely different discussion.
quote:
And it would be REALLY nice if you could possibly post on ANY topic without finding a way to pull the "Blame Bush" strategy.

Straw man.

Again, I've told you like three or four times in this thread, that I've never said Bush is the one to blame for this. I think I've made this abundantly clear. It dumbfounds me that you continue to misrepresent my opinion despite my persistent attempts to correct your mistake.


RE: Jason you just can't help yourself.
By Amedean on 1/2/12, Rating: -1
RE: Jason you just can't help yourself.
By Cheesew1z69 on 1/2/2012 8:15:25 PM , Rating: 1
Don't read his articles, it's not that hard.


RE: Jason you just can't help yourself.
By Amedean on 1/2/2012 8:55:49 PM , Rating: 2
Your right in many ways, I did read a bit but stopped after I had enough. I just wanted to give him a chance and not judge him too quickly. My instincts did prove correct.

I just want to escape this political bigotry, and if you read Jasons articles, they are truly filled with it. I wish I could read more about technology and less about political opinions here at Daily Tech.


RE: Jason you just can't help yourself.
By JasonMick (blog) on 1/2/2012 11:53:45 PM , Rating: 2
quote:
Your right in many ways, I did read a bit but stopped after I had enough. I just wanted to give him a chance and not judge him too quickly. My instincts did prove correct.

I just want to escape this political bigotry, and if you read Jasons articles, they are truly filled with it. I wish I could read more about technology and less about political opinions here at Daily Tech.

Humorous how you think I'm an evil conservative and Reclaimer77 thinks I'm an evil bleeding heart liberal.

Clearly neither of you has a clue. I'm just a free thinker.

Yes, I add analysis to my articles, based on logical reasoning. If that is a threat to you, go back to your biased party news network of choice.

In this case the scenario is clear cut, in my analysis -- the system created is one in which the government can spy on citizens without any accountability or recorded oversight. Such a system is inherently exploitable and given human nature, will almost certainly lead to abuses of power.

Both parties support this sweeping expansion of federal power, so both parties are culpable.

This is all pretty clear cut and factual analysis.

I'm sorry if the facts don't jive well with your chosen viewpoint or hurt your feelings.


RE: Jason you just can't help yourself.
By Amedean on 1/3/12, Rating: -1
RE: Jason you just can't help yourself.
By Amedean on 1/3/12, Rating: -1
By monstergroup on 1/3/2012 3:13:39 AM , Rating: 2
That's not what he said, Jason said you and Reclaimer77 have no idea who Jason is. He never claimed to have you both figured out or 'know it all' as you put it.


RE: Jason you just can't help yourself.
By Reclaimer77 on 1/2/12, Rating: -1
RE: Jason you just can't help yourself.
By JasonMick (blog) on 1/2/2012 11:49:39 PM , Rating: 2
quote:
What? That quote is just as relevant to this discussion as the one you regurgitated up. That's all I'm saying about that.

Err... this was a discussion about wiretapping, which is a clear violation of the right to due process and protection against unreasonable search (and seizures). So a clear cut quote about freedoms, seems more appropriate than an ambiguous quote about the Constitution followed by some sort of discussion on the merits of Lincoln, which again really has very little to do with the matter at hand, no matter how much you may wish it to.

quote:
LMAO says the guy who dragged Nixon's legacy into the mix. Get a clue. Nixon didn't do what he did because of a Congressional approved "wiretap" program. In fact what Nixon did, and this issue, are so far apart that it's really a strain for you to attempt a parallel. Bugging a hotel room and tapping international phone calls are two ENTIRELY different things with different consequences.

Hmm I wonder why I "dragged Nixon's legacy into the mix"? Maybe because the article is about domestic surveillance, not the legacy of Lincoln.

Was Lincoln famous for spying on his rivals?

Nixon's legacy its absolutely appropriate to mention as it shows the abuse of power that can result at a federal level. Fortunately at the time that abuse was illegal so he was impeached.

Today, we're progressively headed down a road where the federal government is legally entitled to commit similar abuses with zero accountability. You have to be willfully ignorant not to see that.

quote:
No. But inversely you're assuming that there's no probable cause in play here. And we're all just being "spied" on because..ummm, just because they can. Again, invalid argument on your part. Where's you "evidence"?

Okay, so now you toss out another strawman argument . I never once attempted to quantify how much we're being spied on. We know some citizens were spied upon by the fact that there's a lawsuit. But again, don't try to put words in my mouth.

I made it perfectly clear that the issue here is not abuse (which we will never know if it happened or not) but about the removal of accountability, which ALLOWS for unchecked abuse.

quote:
You always say that, and yet you keep bringing the man up. Jason, it's now 2012. Are you a history teacher, political advocate, or a writer for a TECH website?

Err, he was President for eight years, and his term ended a bit over three years ago. So yes, he is still relevant in terms of recent history. Heck, I recall mentioning Clinton in at least one article since I started at DT, and that reference was at least 7+ years old.

Again if you argument is that in mentioning Bush I'm automatically attacking him, I think that's a pretty weak argument.

Humorously one of my above detractors was attacking me for being "too right-wing" and said I should work for Fox News. I find both your confusion at exactly what my opinions are quite amusing.

I think free thinking is really a challenge to woeful one-party thinkers.

The second you start to think rationally about an issue rather than just buying whatever junk your party of choice (D or R) tells you, instantly all the one-party thinkers -- like yourself or the guy above who was attacked me for being "too conservative" -- are baffled by it.

quote:
Well that's nice, and I agree, but that doesn't change my point. YOU might feel one way, but I'm simply demonstrating how many liberties one is willing to give away for whatever reason. Some of those that are, in my opinion, FAR more crucial than this one.
Sure a lot of people are hypocrites on many issues. I probably am on some too.

But my point is that warrantless federal wiretapping is dangerous because it grants the federal government sweeping new unregulated powers. It's just as naive to assume such powers would only be used for good as it is cynical to assume that they would be used for evil. Either assumption is likely wrong.

Human nature and history would suggest both will occur. In other words, sure there will be legitimate uses, but there will also be abuses.

The problem becomes that those who use the power properly gain no advantage, while those who abuse it gain the advantage.

Human history has shown that when people find an exploitable system, they slowly but surely progress to exploiting it to an extreme... just look @ the mess the federal and state welfare systems are in right now, with people with legitimate debilitating conditions (like extreme mental illness) having difficulty collecting checks, while others like mothers who keep having kids and refuse to work collecting large paydays.


RE: Jason you just can't help yourself.
By Reclaimer77 on 1/3/2012 10:30:15 AM , Rating: 1
Okay let's sum this up. You're telling me that because in the past a "record" was kept of a federal wiretap, granted by a federally bought and paid for green light warrant judge, and that I would never be aware of any of this taking place anyway; that my "rights" were being upheld and there was some kind of due process? Jason, how many times do Government "records" get conveniently lost or locked away under years of red tape? I'm rolling my eyes at your child-like view of our Government.

quote:
But my point is that warrantless federal wiretapping is dangerous because it grants the federal government sweeping new unregulated powers.


I'm amazed at the ignorance or naive nature of your arguments. As if we can pretend that there are ANY remaining checks and balances in Government power, and this is a unique issue. When's the last time they DIDN'T have "sweeping unregulated" powers Jason? All the "regulators" are part of the same group of people.

quote:
But my point is that warrantless federal wiretapping is dangerous because it grants the federal government sweeping new unregulated powers.


sigh *holds face in hands* Jason Jason, Jason.

THEY HAVE ALWAYS HAD SWEEPING AND UNREGULATED POWERS. Jesus are you really this naive?! Ever heard of someone named J. Edgar Hoover? Or hundreds of other examples I could recite! How about throwing 112,000 Japanese American citizens in "internment camps"? Is that in the Constitution or Bill of Rights as well?

Maybe I'm just too cynical to care anymore. But it seems like you're trying to fill the Grand Canyon with a pile of dirt and a teaspoon here. Hello? It makes for lots of page hits with the sensational and biased tone, sure, but you're missing the target.

So good job on being a "free thinker" and patting yourself on the back for it. It's changing the world as we speak!


RE: Jason you just can't help yourself.
By JasonMick (blog) on 1/3/2012 12:07:30 PM , Rating: 2
quote:
Ever heard of someone named J. Edgar Hoover? Or hundreds of other examples I could recite! How about throwing 112,000 Japanese American citizens in "internment camps"? Is that in the Constitution or Bill of Rights as well?

I'm not going to waste much more time debating with you, because you appear to have your mind set, but consider, if you will, the interesting point raised by your bit of history you tossed out.

What enabled J. Edgar Hoover's well-documented abuses? A sweeping expansion of federal authority in the name of the "war on communism". What allowed the Japanese internment? FDR's sweeping federal power grab, which was conveniently enabled to reach a pinnacle by WWII. What's creating the current issue here? A sweeping federal power grab in the name of a new war -- the "war on terror".

It's pretty obvious the commonality.

If anything your history you threw out is illustrative of just why sweeping expansions of federal power under the auspice of a "war" are dangerous to America's idealogy and values.

Warrantless wiretaps in the name of the "war on terror" are a perfect example of such a sweeping and dangerous granting of unregulated federal powers. That is why we should be vary wary of them.

American history (and human nature) suggest a high probability of abuse.
quote:
THEY HAVE ALWAYS HAD SWEEPING AND UNREGULATED POWERS. Jesus are you really this naive?!

Of course. But the argument that the gov't is crappy, so why does the matter if it gets crappier is a pretty weak one, in my mind. Every move should be assessed on its merits, regardless of how "unregulated"/"irresponsible" the federal government's existing infrastructure is.

You bring up a valid point that a lot of other reforms are needed to truly move America towards a more perfect union.

But fighting undocumented spying on American citizens is certainly a valid cause in the context of this much broader need for reform.


RE: Jason you just can't help yourself.
By Reclaimer77 on 1/3/2012 1:11:22 PM , Rating: 4
quote:
I'm not going to waste much more time debating with you


Oh it's been a waste now? That's nice. Well I'm going to do myself a favor and try not to waste my time reading your tabloid articles.

quote:
You bring up a valid point that a lot of other reforms are needed to truly move America towards a more perfect union.


No the time for that is sadly past. Those in power will allow no true "reform". The only thing left for us is to forcibly dismantle the current Government. IE; a civil war with hopefully the right side winning this time.

quote:
But fighting undocumented spying on American citizens is certainly a valid cause in the context of this much broader need for reform.


Who's fighting it? Those that pretend to care are only doing it for political gain, like Obama. Nothing is ever really going to change.


RE: Jason you just can't help yourself.
By Fritzr on 1/3/2012 6:04:11 PM , Rating: 2
Just out of curiosity I will ask a silly question.

You claim that there is no need to fight this new power granted to Bush and currently used by Obama.

You claim the government is hopelessly corrupt so there is no sense in trying to reverse the trend.

Then you conclude by saying the people should revolt and eliminate the corruption.

Are you sure that is the right thing to do...that is; sccept and roll over while not accepting and cleaning house?

This sort of thinking used to be termed "Schizophrenic" since it requires you to hold two incompatible views at the same time.


By Reclaimer77 on 1/3/2012 7:07:33 PM , Rating: 2
That was silly because you took everything out of context.


"Folks that want porn can buy an Android phone." -- Steve Jobs














botimage
Copyright 2014 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki