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  (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



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RE: Ron Paul?
By JasonMick (blog) on 1/3/2012 12:16:27 PM , Rating: 2
quote:
reasonably believed to be outside the US. The chances of this being used, legally, to spy on intercept communications between two American citizens is pretty slim.

Key words "reasonably believed" .

When no one is keeping publicly available detailed records of your activities, it's pretty easy to justify that you spied on two Americans because you "reasonably believed" that one of them might be a foreigner. It's easier still if one of the individuals encountered some foreign individual at their school/work.

It's a logical fallacy to state that either such abuses have happened or that they haven't happened without definitive evidence either way. I don't claim to have that evidence, my point is that the bill makes it reasonably easy to spy on two Americans even if it is ostensibly designed to aid in the spying on at least one foreigner. That danger arises due to its creation of warrantless federal authority and erosion of due process.

Remember, a dictator could in theory COULD be just as good and noble a leader in terms of looking out for the public good and freedoms, maybe better, than a democratically elected legislature. Human nature, though makes it more likely that sweeping grants of federal authority (as in the case of a dictator or the separate issue of warrantless wiretaps) are more likely to be abused that nobly used.


RE: Ron Paul?
By Reclaimer77 on 1/3/2012 1:01:07 PM , Rating: 2
Jason when was there ever a "publicly available" record of such things? Come on man. And even if you DID attempt to view such records, they would simply say no under the guise of national security .


RE: Ron Paul?
By JasonMick (blog) on 1/3/2012 2:06:32 PM , Rating: 2
quote:
Jason when was there ever a "publicly available" record of such things? Come on man. And even if you DID attempt to view such records, they would simply say no under the guise of national security .

It appears you are acknowledging on some level that warrantless monitoring is dangerous because it can be abused, but you're defending it by saying that it's always been done.

Consider the logic of your argument.

quote:
Thing X is bad in that it tempts illegal abuse. But the government is the one doing thing X and has always done it. Thus we should legalize thing X, because it's all the same.

Do you see the folly of that logic? Basically your looking to take a broken system and institutionalize that broken system rather than fix/improve it. Does that make any sense?


RE: Ron Paul?
By Reclaimer77 on 1/4/2012 10:09:00 AM , Rating: 2
Jason I'm going to shock you here, but I'm actually NOT a deep cover NSA administrator posing on Daily Tech as an average American. I cannot exact policy change. Just throwing that out there.

I'm not "defending" anything. I'm just telling you how it is. Also I'm probably a bit apathetic after a solid decade of Bush bashers spewing their vitriol across every medium I encounter.

quote:
Thing X is bad in that it tempts illegal abuse. But the government is the one doing thing X and has always done it. Thus we should legalize thing X, because it's all the same.


I'm really sad that after hundreds, maybe thousands of words, that's what you come away with after reading my posts.


RE: Ron Paul?
By Just Tom on 1/3/2012 1:25:54 PM , Rating: 2
Reasonable belief is a specific judicial criteria, if the government acted upon information that it coult not convince a judge it had reasonable belief that one of the parties involved was based outside the US that information would be deemed inadmissible.

quote:
It's a logical fallacy to state that either such abuses have happened or that they haven't happened without definitive evidence either way.


True enough, there is no way to prove abuse has not happened. But it is absurd to think that as badly as DC leaks if there was a widespread interception of communications between American citizens that it would not have come to light. It always has in the past. And any widespread use of warrantless interceptions would be unreasonable and therefore illegal. While SCOTUS has never ruled on whether the President has the inherent constitutional power to intercept communications between American citizens and foreign powers several federal district courts decided that such action is constitutional.

I am not counting on human nature to deter warrantless searches. I am counting on the political system to punish those who abuse what can be a legitimate war fighting tool.


RE: Ron Paul?
By Reclaimer77 on 1/3/12, Rating: -1
RE: Ron Paul?
By JasonMick (blog) on 1/3/2012 2:00:28 PM , Rating: 2
quote:
Reasonable belief is a specific judicial criteria, if the government acted upon information that it coult not convince a judge it had reasonable belief that one of the parties involved was based outside the US that information would be deemed inadmissible.

In your average abuse case, the guilty government party wouldn't be looking to use their collected intelligence (e.g. info on a political rival) in court, so admissibility criteria is immaterial.

As far as the surveillance itself, they don't need a judge's permission in most cases hence the "warrantless" part, so they're free to define whatever they think is reasonable.
quote:
But it is absurd to think that as badly as DC leaks if there was a widespread interception of communications between American citizens that it would not have come to light. It always has in the past. And any widespread use of warrantless interceptions would be unreasonable and therefore illegal.

Again I think you need to look more carefully at the risk here. I think logic tells us that we can expect mass monitoring to be highly unlikely as it would come at a great expense and be -- as you mentioned -- very obvious.

As I see it, there's two types of abuse that are plausible as they would be on a smaller scale and harder to detect/leak:

1. One possibility is that political officials and/or law enforcement officials could use the law for personal vendettas (e.g. someone fired your wife? wiretap them and get their dirt...)

2. A more disturbing possibility, though, is that limited selective monitoring could be used to consolidate power to a single party or coalition (e.g. what Nixon was trying to do by bugging his political rivals). Such a monitoring scheme could be carefully limited to keep it out of the public eye. And by the time the abuser completed their power grab, it would be too late -- the process of free government would already have been subverted.

At that point it would be too late as the opposition would be removed and the ruling party would be free to institute a police state, extending monitoring to the greater public at large.

Of course this would be just one tool necessary to pull off such a power grab, but it is among the most powerful tools to put in the hands of a would-be totalitarian.

That same process transformed numerous governments into totalitarian regimes in the 1900s. It always began with a more limited crackdown on political rivals, then expanded to a more general police state, once the opposition had been removed. Like the U.S. at present, many of those states were caught up in a nationalist fervor, which the power-grabbers perverted to consolidate power.
quote:
While SCOTUS has never ruled on whether the President has the inherent constitutional power to intercept communications between American citizens and foreign powers several federal district courts decided that such action is constitutional.

I think its more an example of courts willfully ignoring the Constitution than a case of them honestly thinking this is Constitutional.

Courts can of course defy the Constitution by claiming seemingly obviously unconstitutional things to be constitutional and historically often have. For example courts upheld bans on women voting, slavery, and internment of Japanese Americans. All of these things were inherently unconstitutional in that they denied fundamental freedoms.


RE: Ron Paul?
By Just Tom on 1/3/2012 8:40:17 PM , Rating: 2
All your abuse scenarios are indeed disturbing, I'll freely admit that. However, they are also illegal under the law as currently written. So you are postulating a scenario where some part of the executive has already gone rogue. Having already postulated such a scenario, a rogue executive, what exactly would stop whomever from conducting illegal wiretaps even if the law was changed? In your scenarios the executive has already demonstrated the will to break the law.

quote:
1. One possibility is that political officials and/or law enforcement officials could use the law for personal vendettas (e.g. someone fired your wife? wiretap them and get their dirt...)


This is an argument for harsh punishment of those who misuse warrantless wiretapping for personal reasons. I am not sure about federal law but most states have pretty significant criminal penalties for misuse of investigative powers. I would not be suprised if the feds had something similar. If not they should.

quote:
2. A more disturbing possibility, though, is that limited selective monitoring could be used to consolidate power to a single party or coalition (e.g. what Nixon was trying to do by bugging his political rivals). Such a monitoring scheme could be carefully limited to keep it out of the public eye. And by the time the abuser completed their power grab, it would be too late -- the process of free government would already have been subverted.


Possible, but extremely risky. What was the end result of Nixon's deeds? Jimmy Carter and a massive Democrat majority in both houses of Congress. And once again you are postulating someone already willing to violate the law; making all warrantless searches illegal would not change that fact. He or she would be willing to break the law to tighten his or her grip on power, I doubt adding one more felony to the list would limit that possibility.

quote:
That same process transformed numerous governments into totalitarian regimes in the 1900s. It always began with a more limited crackdown on political rivals, then expanded to a more general police state, once the opposition had been removed. Like the U.S. at present, many of those states were caught up in a nationalist fervor, which the power-grabbers perverted to consolidate power.


Please, give me one example of a viable law term democracy that has flipped into a police state. There are numerous examples of societies that do not have the pre-requisites for Democracy - a generally educated populace, a tradition of civil discourse, a free and vigilant press, political parties that represent diverse views - going from nominally democratic to totalitarian I struggle to think of a single instance where - absent outside events - a viable long term democracy has gone totalitarian. If you have any examples I'd love to see them.


RE: Ron Paul?
By JediJeb on 1/4/2012 1:31:11 PM , Rating: 2
quote:
That same process transformed numerous governments into totalitarian regimes in the 1900s. It always began with a more limited crackdown on political rivals, then expanded to a more general police state, once the opposition had been removed. Like the U.S. at present, many of those states were caught up in a nationalist fervor, which the power-grabbers perverted to consolidate power.


Sounds like the subplot to a movie that began a long time ago in a galaxy far far away.


RE: Ron Paul?
By Fritzr on 1/3/2012 5:41:19 PM , Rating: 2
Have you heard of Hexagon?

Just recently it was in the news an old spy satellite construction and deployment program. The largest employer in town. What did this employer do? Sorry, no can tell ... trade secrets involved. Then the security classification is lowered ... now it is Hey bartender, you know what I did for a living?...I built spy satellites!

There is a reason behind the name normally applied to NSA for most of it's existence. You see if you heard the initials and tried to ask about it, the answer was always "No Such Agency"

Aside from Congressmen assigned to Intelligence committees WITH above Top Secret security clearances, in Congress the NSA was "There is No Such Agency sir".

After it's existence was declassified some employees are now permitted to say they work at the NSA offices in the Washington area.

You will likely be surprised to learn that Top Secret agencies and installations do not invite reporters in. They much prefer that their existence be unknown. Being unknown makes it easier to do their jobs. As as been revealed countless times, being unknown and unwatched makes it much easier to do their job as no one is insisting they confine their methods to what is allowed by law.

Reasonable belief is a very easy standard to meet. Senator, this report, which is classified above your clearance level, sorry, contains clear evidence of our targets contact with Al Qaeda. Based on this evidence we felt it necessary for the safety of the country to record every take out order called into Joe's Diner in Pawtuxent. We made sure to limit the surveillance to just the target and feel that for this reason we are not violating the portion of our charter that says we may conduct no operations of any kind for any reason on US soil.

No Senator I am not permitted to allow you to examine this folder ... (sotto voce to Aide) Get these cafeteria menus back to the office quickly...


RE: Ron Paul?
By Just Tom on 1/3/2012 8:49:38 PM , Rating: 2
Hexagon was a program of foreign intelligence gathering known to members of both parties. If you are arguing that a similar program for domestic intelligence is also known to members of both parties then frankly, we're screwed.

The problem with illegally discovered intelligence is what exactly do you do with it? Reasonable belief is not as easy as you paint, and in criminal court without it the information does not exist. You could release it to the press and an attempt to ruin reputations but it is often difficult to do so without jeopardizing the methods used to gather that intelligence.

In your world it does not matter if warrantless wiretaps are allowed because they are going to happen anyway. So are arguments over this law is moot.


RE: Ron Paul?
By lagomorpha on 1/3/2012 3:04:44 PM , Rating: 2
quote:
Remember, a dictator could in theory COULD be just as good and noble a leader in terms of looking out for the public good and freedoms, maybe better, than a democratically elected legislature.


See Egypt. Mubarak may have been a corrupt, torturing dictator but at least he kept the Islamists from controlling the government. There is nothing inherently good about democracy if you don't have a population educated and mature enough to make good use of it.


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