Author Topic: If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases  (Read 1517 times)

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Offline Elaine Davis

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http://arstechnica.com/tech-policy/2015/01/if-the-supreme-court-tackles-the-nsa-in-2015-itll-be-one-of-these-five-cases/


If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases

How a church, terror suspects, and some lawyers are pushing privacy on the legal front.

by Cyrus Farivar - Jan 1 2015, 9:00am CST

Roughly a year and a half since the first Snowden disclosures, there's already been a judicial order to shut down the National Security Agency's bulk metadata collection program.

The lawsuit filed by Larry Klayman, a veteran conservative activist, would essentially put a stop to unchecked NSA surveillance. And at the start of 2015, he remains the only plaintiff whose case has won when fighting for privacy against the newly understood government monitoring. However, it's currently a victory in name only—the judicial order in Klayman was stayed pending the government’s appeal.


Klayman v. Obama is only one of a number of notable national security and surveillance-related civil and criminal cases stemming fully or partially from the Snowden documents. In 2014, a handful of these advanced far enough through the legal system that 2015 is likely to be a big year for privacy policy. One or more could even end up before the Supreme Court.
"I think it's impossible to tell which case will be the one that does it, but I believe that, ultimately, the Supreme Court will have to step in and decide the constitutionality of some of the NSA's practices," Mark Rumold, an attorney with the Electronic Frontier Foundation, told Ars.

Rumold is one of the attorneys in First Unitarian Church, a case that is challenging government surveillance much like Klayman. Along with that pair, headline watchers should set alerts for cases such as American Civil Liberties Union (ACLU) v. Clapper, United States v. Moalin, and United States v. Muhtorov. Not only are there several other related cases that will likely be influenced by these decisions, but those five cases represent the strongest and most direct legal challenges to the current NSA surveillance state.

Ain't no party like a third party!

Before outlining the relevant cases, it's important to note the government's general justification for the legality of bulk metadata collection: the third-party doctrine.

This theory was codified most recently from a 1979 Supreme Court decision in Smith v. Maryland. In the case, the court found that individuals do not have an inherent privacy right to data that has already been disclosed to a third party. So with telecom data for instance, the government has posited that because a call from one person to another forcibly transits Verizon’s network, those two parties have already shared that data with Verizon. Therefore, the government argues, such data can't be private, and it’s OK to collect it.

But legal experts say that recent surveillance and privacy Supreme Court decisions could lead the courts to reconsider. The first Snowden revelation (published in June 2013) was that Verizon (and presumably other telecom firms) are routinely handing over all call records to the NSA. The metadata records include the date, times, and lengths of the calls.

In October 2013, the third-party doctrine was upheld. A Foreign Intelligence Surveillance Act Court (FISA Court) judge ruled that there was no privacy interest in such metadata collected and analyzed by the NSA. In short, if it's OK to collect third-party data on one person, it's OK to collect it on a bunch of people.

[quote( author=(.*) link=(.*) date=[0-9]+)?]Put another way, where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.
In sum, because the Application at issue here concerns only the production of call detail records or "telephony metadata" belonging to a telephone company, and not the contents of communications, Smith v. Maryland compels the conclusion that there is no Fourth Amendment impediment to the collection. Furthermore, for the reasons stated in—and discussed above, this Court finds that the volume of records being acquired does not alter this conclusion. Indeed, there is no legal basis for this Court to find otherwise.
[/quote]




But consider two recent Supreme Court cases: United States v. Jones (2012) and Riley v. California (2014). Both were decided by rare unanimous opinions, and both indicate an awareness that modern tech has changed reasonable privacy. Jones determined that law enforcement does not have the authority to place a GPS tracker on a suspect without a warrant. Meanwhile, the court found in Riley that law enforcement cannot search a person’s phone incident to arrest without a warrant.
"[These cases] are strong signs that the Supreme Court is aware that rules that were created in a period of time when the court analyzed targeted surveillance do not blindly apply where the government is collecting huge quantities of information," Patrick Toomey, an attorney with the American Civil Liberties Union, told Ars.

"As the quantity expand, a new constitutional analysis arises. We think the same type of principle applies here. Smith v. Maryland is one suspect’s data over three days as opposed to the information contained in everyone’s call records contained for 10 years or more."

For his part, the EFF's Rumold agreed with this reasoning.

"Riley signals that the Supreme Court recognizes that technological distinctions matter, and we can't blindly apply old precedent to new technology," he added. "Jones, or at least the concurrences in Jones, signal that the scope and duration of surveillance makes a difference for constitutional purposes. Those twin principles put much of the NSA's domestic spying programs on pretty unsound constitutional footing."


Klayman versus Goliath

[quote( author=(.*) link=(.*) date=[0-9]+)?]Case name: Klayman v. Obama
Status: Argued before District of Columbia Circuit Court of Appeals in November 2014, awaiting ruling[/quote]

Klayman filed his federal lawsuit at the District of Columbia District Court on June 6, 2013, the day after the first published disclosures from the Snowden leaks. That initial revelation showed that Verizon routinely handed over all metadata on its customers to the NSA. So as a Verizon customer, Klayman argued that his constitutional rights—not to mention the rights of all other Verizon customers—were violated as the result of this data handover. The government relied on the third-party doctrine in its defense.
Judge Richard Leon, a Republican appointee, agreed with Klayman’s argument. As he wrote in a December 16, 2013 memorandum opinion:

[quote( author=(.*) link=(.*) date=[0-9]+)?]Indeed, the question in this case can more properly be styled as follows: when do present-day circumstances—the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court 34 years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the government, is now.

In sum, the Smith pen register and the ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.[/quote]


Unlike any of the other metadata-related cases thus far, Judge Leon ordered the government to immediately halt the Bulk Telephony Metadata Program and to destroy "any such metadata in its possession that was collected through the bulk collection program." However, he noted, "in light of the significant national security intere
sts at stake in this case and the novelty of the constitutional issues, I will stay my order pending appeal."


In early November 2014, Klayman arrived at that appeal. The case was heard again, this time before the District of Columbia Circuit Court of Appeals. A ruling is expected in the forthcoming months.
Klayman is likely the first domino. There are a few other current cases making similar claims, and one is from June 2013 in fact. Like Klayman, Smith v. Obama argues that the government is violating plaintiff Anna Smith's rights by routinely collecting her metadata. Initially, a lower federal court in Idaho found that Smith "has no expectation of privacy in the telephone numbers that she dials." The case was heard at the 9th Circuit Court of Appeals in Seattle in December, and that appellate court is likely to rule sometime early in 2015.
Rand Paul v. Obama is a more high-profile Klayman-like example. The Kentucky senator filed in February 2014 in the United States District Court for the District of Columbia. But since the suit was filed in the same district as Klayman, it has been stayed pending Klayman’s appellate ruling.
Enlarge / Sen. Rand Paul (R-KY) is one of the plaintiffs in a lawsuit against President Barack Obama, arguing that the government's metadata program is illegal.
Gage Skidmore

Most recently, a Pennsylvania lawyer named Elliott Schuchardt joined the bandwagon and filed a suit in June 2014. In his amended complaint, Schuchardt went further than some of these other cases. Schuchardt v. Obama not only challenges metadata collection under the Section 215 of the PATRIOT Act, but it also contests other surveillance programs authorized by Executive Order 12333 and Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FISA AA). The case is still pending before the United States District Court for the Western District of Pennsylvania.

What do free software zealots and gun owners have in common?
[quote( author=(.*) link=(.*) date=[0-9]+)?]Case name: First Unitarian Church v. National Security Agency
 Status: Pending in Northern District Court of California[/quote]
Unlike Klayman and similar cases, First Unitarian Church v. National Security Agency was filed on behalf of a number of religious and non-profit groups. This collective runs the gamut, representing Muslims, gun owners, marijuana legalization advocates, and even the Free Software Foundation. In total, the suit represents the broadest challenge to the metadata collection program so far.

The EFF filed this case in July 2013, and it's based on the idea that the NSA has been conducting dragnet spying for years. First Unitarian Church is by no means the first suit to make this allegation. And it's actually similar to another ongoing case (Jewel v. National Security Agency) that was also brought by the EFF.
Carolyn Jewel is a romance novelist who lives in Petaluma, California, north of San Francisco. In the original Jewel complaint (PDF), Jewel and other plaintiffs alleged that the government and AT&T were engaged in an "illegal and unconstitutional program of dragnet communications surveillance conducted by the NSA and other Defendants in concert with major telecommunications companies." The evidence stemmed from materials leaked by former San Francisco AT&T technician Mark Klein in 2006. For years, the case stalled in the court system, but it gained new life after the Snowden disclosures in 2013.

First Unitarian Church, meanwhile, takes the bulk collection of data and questions how it may reveal an individual's associations:

[quote( author=(.*) link=(.*) date=[0-9]+)?]Plaintiffs’ associations and political advocacy efforts, as well as those of their members and staffs, are chilled by the fact that the Associational Tracking Program creates a permanent record of all of Plaintiffs’ telephone communications with their members and constituents, among others.[/quote]

First Unitarian Church demands that the metadata program be declared unconstitutional and be shut down. The plaintiffs’ attempt to hold a court hearing regarding their attempt for summary judgment was denied earlier this month.
In a recent court filing, government lawyers pointed to Smith in their argument against summary judgment.

[quote( author=(.*) link=(.*) date=[0-9]+)?]Indeed, as Plaintiffs acknowledge, it is the issue before the Ninth Circuit in Smith [v. Obama], virtually ensuring that the Ninth Circuit will soon rule on the very same claim, regarding the very same intelligence program, that Plaintiffs assert here. It would simply not be in the interests of judicial economy to hold a hearing on this very issue while it is pending for decision before the Ninth Circuit.[/quote]

Judge Jeffrey White is also the presiding judge in Jewel, and it seems likely this particular case will wait until the 9th Circuit rules in Smith.

Just like stealing your datebook

[quote( author=(.*) link=(.*) date=[0-9]+)?]Case name: ACLU v. Clapper
 Status: Argued before 2nd Circuit Court of Appeals in September 2014, awaiting ruling[/quote]
In September 2014, the 2nd Circuit Court of Appeals finally heard oral arguments in ACLU v. Clapper. The case was originally filed back in June 2013, days after the first Snowden revelations became public. A decision could come as soon as this month—and if so, it would be the first federal appellate court to rule on the validity of the NSA’s metadata program.


ACLU v. Clapper is like the other cases outlined here, but it focuses specifically on the granularity involved in data collection. Clapper argues that the NSA metadata program is "akin to snatching every American’s address book—with annotations detailing whom we spoke to, when we talked, for how long, and from where. It gives the government a comprehensive record of our associations and public movements, revealing a wealth of detail about our familial, political, professional, religious, and intimate associations."
"The issues in these cases are similar," Ruthann Robson, a law professor at the City University of New York, told Ars by e-mail. "The first is a constitutional procedural hurdle of the plaintiffs' (challengers) standing to bring the claims. It is possible, however unsettling it may be, that no one has standing to challenge the NSA surveillance program, and thus the federal courts do not have power to consider the claims. Under the Fourth Amendment, the issues are whether the surveillance is a ‘search’ at all, making the Fourth Amendment applicable. And then, if it is a search, is the search ‘reasonable?’"
Enlarge
Consumerist.com
Nearly a year ago, on December 27, 2013, US District Judge William H. Pauley initially ruled in favor of the government in ACLU v. Clapper. As he wrote:

[quote( author=(.*) link=(.*) date=[0-9]+)?]This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen.

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.

The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America’s enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record of this case.[/quote]

Judge Pauley also noted that 15 different FISC judges have upheld the metadata program on 35 different occasions since May 2006.


Some subsequent external analysis disagrees with Judge Pauley's assertions. One congressional civil liberties watchdog found in January 2014 that the Section 215 metadata program "has contributed only minimal value in combating terrorism beyond what the government already achieves through these and other alternative means," adding that "cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government’s efforts, while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations."

The Privacy and Civil Liberties Oversight Board (PCLOB) agreed with this outside analysis, concluding that there is "no instance in which the [metadata] program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack."
The September 2014 appeals hearing before the 2nd Circuit ran nearly two hours, an unusually long argument—normally the court gives just 10 or 15 minutes to each side for oral argument in an appeal case. C-SPAN was allowed to record and broadcast the full proceeding, another unusual step in an appeals court that's nearly always closed to cameras.

But like the other cases outlined here, Clapper is entirely focused on the NSA’s metadata collection program, which is authorized under Section 215 of the PATRIOT Act. Presently, Section 215 is set to expire on June 1, 2015 unless it is specifically re-authorized by Congress. As recently as February 2014, James Sensenbrenner (R-WI), author of the PATRIOT Act, said the House would let it expire absent intelligence and judicial revisions to rein in the abuses.
Earlier in 2013, Sensenbrenner filed his own amicus brief in ACLU v. Clapper.

[quote( author=(.*) link=(.*) date=[0-9]+)?]The vast majority of the records collected will have no relation to the investigation of terrorism at all. This collection of millions of unrelated records is built-in to the mass call collection program. Defendants’ theory of "relevance" is simply beyond any reasonable understanding of the word. And it certainly is not what amicus intended the word to mean.

Defendants do not explain why Congress would have enacted such meaningless provisions. The bulk data collection program is unbounded in its scope. The NSA is gathering on a daily basis the details of every call that every American makes, as well as every call made by foreigners to or from the United States. How can every call that every American makes or receives be relevant to a specific investigation?[/quote]


An $8,500 mistake

[quote( author=(.*) link=(.*) date=[0-9]+)?]Case name: United States v. Moalin
 Status: Convicted in Southern District Court of California, appeal pending in 9th Circuit Court of Appeals[/quote]

In 2015, the 9th Circuit Court of Appeals will likely hear oral arguments in the only criminal case where the government is known to have used metadata collection to prosecute a terrorism-related case.


United States v. Basaaly Saeed Moalin involves a Somali taxi driver who was convicted in federal court in San Diego on February 2013 on five counts. The counts include conspiracy to provide material support ($8,500) to the Somali terrorist group Al Shabaab, and Moalin was sentenced in November 2013 to 18 years in prison.
At congressional hearings in June 2013, FBI Deputy Director Sean Joyce testified that under Section 215, the NSA discovered Moalin conversing with a known terrorist overseas.
The case was domestic, but the FBI took over at that point. They began intercepting 1,800 phone calls over hundreds of hours from December 2007 to December 2008. The agency got access to hundreds of e-mails from Moalin’s Hotmail account, and this access was granted after the government applied for a court order at the FISC.
Moalin was arrested in December 2010. His lawyer, Joshua Dratel, did not learn of the NSA’s involvement until well after his client’s conviction. Dratel challenged the validity of the spying in court, requesting that the court compel the government to produce the FBI’s wiretap application to the FISC. The government responded with a heavily redacted 60-page brief, essentially arguing that as the case involved national security issues, such information could not be revealed.
Enlarge
Hodja

Moalin is currently under appeal on the grounds that the NSA unconstitutionally abused its authority to target Moalin. Nearly all of 2014 has been taken up with delays in the case, even Moalin’s opening brief has yet to be filed. Court records show that it is due April 6, 2015.
"The Snowden disclosures have had a material impact on the case, as in an effort to counteract them (and justify the Section 215 metadata collection program), the government revealed in Congress for the first time (nearly six months after trial) that the investigation was instigated by Section 215 collection," Dratel told Ars by e-mail.

When snooping goes beyond metadata

[quote( author=(.*) link=(.*) date=[0-9]+)?]Case name: United States v. Muhtorov
 Status:
Pending in District Court of Colorado[/quote]
Different types of digital surveillance are authorized under various laws, but one particularly thorny one is Section 702 of the FISA Amendment Act. This authorizes PRISM and "upstream" collection programs like XKeyscore, which can capture digital content (not just metadata) primarily where one party is a non-US person outside the US. Executive Order 12333 is believed to generally cover instances where both parties are non-US persons and are both overseas—although EO 12333 can "incidentally" cover wholly domestic communication as well.
There are a number of pending cases impacted by challenges to this more invasive surveillance. While many court watchers have noted that any Section 215-related cases will likely be made irrelevant by Congressional action, cases that challenge Section 702 surveillance are equally, if not more, important.

"Even if one of the circuit courts invalidates the metadata program either under statutory or constitutional grounds, such a decision is likely to be mooted by Congress," Steve Vladeck, a law professor at American University, told Ars. "But there seems little interest in Congress to look at reforms to Section 702, which is why the litigation arising under that provision could be much more significant going forward."

Linkback: http://www.wikileaks-forum.com/nsa/332/if-the-supreme-court-tackles-the-nsa-in-2015-itll-be-one-of-these-five-cases/32805/
GOD FORBID THE LIGHTS GO OUT and a zillion brains have to be retrained to function in manual reality.

Does anyone else get the idea that the tweets on the WL account are starting to sound a little like someone is bathing in a bird bath, eating bird food & possibly smoking bird * in his own sphere??

Offline Junho yang

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Mad, thief, devilish murderer and poison gad terror US government are alone try to do something... funny...
All of US governments lost trust. International people shouldn't believe US organizations.


US government is kind of an international betrayer.
US government is watching the foreign collaborators who work with US companies or something. And steal foreigner's intellectual property rights. And then spray various murderous poison gases around the foreign victim. spread dirty and fake rumors.


Don't believe US government's reform show.
And don't believe South-Korea government.
These two government already knew US government's making fake patents and committing poison gas terrors. But the two government didn't let international peoples know the truths. South-Korea government didn't warn international peoples of danger about US government's international crimes.

Furthermore, US government have committed various gas terrors against me. And US government filed a complaint with prosecutors because US government hate my Emails. And dirty and mad US government made me a prisoner. US government didn't come into South-Korea court.
The policemen, the prosecutors and the judges are my enemy. These guys don't care about South-Korean or international peoples' safety.


US government is the dirtiest gang in the world. Worse than NAZI or North-Korea.

Dear international peoples,
Don't confused. Open your eyes.
US government didn't keep the international law which US government swore.
And US government studied how to kill foreigners with murderous poison gases or others directly or indirectly.
US government stole even my toy-puzzle patent. US government will steal even your small property or your family's.
And US government will send your data to the gangsters who live near you because US government want the gangsters commit dirty crimes instead of US government. 

Don't believe US government's worthless and meaningless fake reform. They are just terrible impostors in the end.
The truth is:
US government was the dirty power behind NAZI.
Now, US government is the real NAZI and attack individuals and companies for US interest.
The Myth of the Good War: The USA in World War II
http://www.jacquespauwels.net/the-myth-of-the-good-war-the-usa-in-world-war-ii/

Offline Junho yang

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US government are one of dirty Antichrist and souls of Satan and Evil.
US spy's loads sprayed poison gas and sexual desire gas in a church.
US spy's loads snooped every section of the church and found out me there. And then sprayed the gases.
So, I gave up going to every Church.

US government is the most dirty disgusting group in the world. You will go to hell when you die.
   
The truth is:
US government was the dirty power behind NAZI.
Now, US government is the real NAZI and attack individuals and companies for US interest.
The Myth of the Good War: The USA in World War II
http://www.jacquespauwels.net/the-myth-of-the-good-war-the-usa-in-world-war-ii/


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