Historic ruling: NSA Mass Phone Surveillance Likely Unconstitutional
December 16, 2013 4:53 PM Subscribe
A federal judge in Washington, DC ruled today that the mass phone records surveillance revealed by whistleblower Edward Snowden is likely unconstitutional. [previously on Metafilter] Judge Leon wrote: “The question before me is not the same question that the Supreme Court confronted in Smith” and is “a far cry from the issue in this case.” [annotated by Spencer Ackerman, original PDF here.]
Journalist Glenn Greenwald, who broke the story, responds on MSNBC.
Journalist Glenn Greenwald, who broke the story, responds on MSNBC.
Allow me to be the first to say: duh.
posted by Ipsifendus at 4:58 PM on December 16, 2013 [14 favorites]
posted by Ipsifendus at 4:58 PM on December 16, 2013 [14 favorites]
Meanwhile today, 60 Minutes made an unprecedented visit to the NSA, interviewing among others General Keith Alexander, who said "The fact is, we're not collecting everybody's email, we're not collecting everybody's phone things". The report was quickly derided for John Miller's softball questions, history at the Office of the Director of National Intelligence, and future career at the NYPD, and termed by one commenter as "NSA stenography".
posted by anemone of the state at 4:59 PM on December 16, 2013 [8 favorites]
posted by anemone of the state at 4:59 PM on December 16, 2013 [8 favorites]
"Likely"!?
posted by fifthrider at 5:02 PM on December 16, 2013 [2 favorites]
posted by fifthrider at 5:02 PM on December 16, 2013 [2 favorites]
I am looking forward to hearing how they are going to un-ring the bell.
posted by JohnnyGunn at 5:03 PM on December 16, 2013 [3 favorites]
posted by JohnnyGunn at 5:03 PM on December 16, 2013 [3 favorites]
What's the next step? Does this go to the Supreme Court after this?
posted by acb at 5:06 PM on December 16, 2013
posted by acb at 5:06 PM on December 16, 2013
There is no way this court case would be happening with Snowden's leaks.
posted by Nelson at 5:06 PM on December 16, 2013 [7 favorites]
posted by Nelson at 5:06 PM on December 16, 2013 [7 favorites]
What's the next step? Does this go to the Supreme Court after this?
D.C. Circuit
posted by snarfles at 5:10 PM on December 16, 2013
D.C. Circuit
posted by snarfles at 5:10 PM on December 16, 2013
Edward Snowden says judge's ruling vindicates NSA surveillance disclosures
posted by anemone of the state at 5:10 PM on December 16, 2013 [4 favorites]
posted by anemone of the state at 5:10 PM on December 16, 2013 [4 favorites]
I'm betting on a whole heap of NSA pardons come 2016 if this goes anywhere.
posted by dilaudid at 5:16 PM on December 16, 2013 [1 favorite]
posted by dilaudid at 5:16 PM on December 16, 2013 [1 favorite]
I'd like to see the SC expedite ruling on (the inevitable appeals of) this the way they did Obamacare, but I'm not holding my breath. Still, yay.
posted by likeatoaster at 5:17 PM on December 16, 2013 [1 favorite]
posted by likeatoaster at 5:17 PM on December 16, 2013 [1 favorite]
Even if existing law were to prevent the specific form of surveillance that was carried out in secret up until recently, we don't have the privacy laws to prevent telecomm companies and Google and Microsoft and Apple and all from just doing the same things on their own and selling the information to the government, do we? Isn't that the traditional way to get around constitutional constraints on what the government can do - have a private contractor do it?
posted by XMLicious at 5:20 PM on December 16, 2013 [3 favorites]
posted by XMLicious at 5:20 PM on December 16, 2013 [3 favorites]
"Likely"!?
It's a suit for a preliminary injunction, so "likely" is the applicable legal standard at this point in the litigation.
posted by likeatoaster at 5:20 PM on December 16, 2013 [10 favorites]
It's a suit for a preliminary injunction, so "likely" is the applicable legal standard at this point in the litigation.
posted by likeatoaster at 5:20 PM on December 16, 2013 [10 favorites]
I'm going to go out on a limb and say this ruling will turn out not to make any difference whatsoever in what happens.
posted by edheil at 5:21 PM on December 16, 2013 [4 favorites]
posted by edheil at 5:21 PM on December 16, 2013 [4 favorites]
You just know that our lawmakers' response is gonna be "This is problematic. We need to be more specific. Let's just make all these activities expressly permitted. We can't let the terrorists take away our freedoms."
posted by Benny Andajetz at 5:21 PM on December 16, 2013 [15 favorites]
posted by Benny Andajetz at 5:21 PM on December 16, 2013 [15 favorites]
Mod note: Folks I'm sure there will be enough interesting stuff to mull over in this thread without picking fights with people who aren't even here (yet). Seriously make an effort.
posted by jessamyn (staff) at 5:21 PM on December 16, 2013 [7 favorites]
posted by jessamyn (staff) at 5:21 PM on December 16, 2013 [7 favorites]
Edward Snowden says judge's ruling vindicates NSA surveillance disclosuresAll he had to do was give up his career and family and live in exile in Russia, of all places. I hope he does feel vindicated.
A pox on the houses of those who prevented whistle blowing in the past.
posted by Llama-Lime at 5:22 PM on December 16, 2013 [19 favorites]
The report was quickly derided for John Miller's softball questions, history at the Office of the Director of National Intelligence, and future career at the NYPD, and termed by one commenter as "NSA stenography".
CBS Airs NSA Propaganda Informercial Masquerading As 'Hard Hitting' 60 Minutes Journalism By Reporter With Massive Conflict Of Interest
posted by homunculus at 5:22 PM on December 16, 2013 [11 favorites]
CBS Airs NSA Propaganda Informercial Masquerading As 'Hard Hitting' 60 Minutes Journalism By Reporter With Massive Conflict Of Interest
posted by homunculus at 5:22 PM on December 16, 2013 [11 favorites]
Orin Kerr seems unimpressed with the ruling. (Kerr is one of the preeminent scholars in the area. He leans conservative as a political matter, probably, but he's one of the clearest, analytically sharp commenters out there)
posted by jpe at 5:24 PM on December 16, 2013
posted by jpe at 5:24 PM on December 16, 2013
My takeaway from the New Yorker article in the man of twists and turns's previous post is that it largely doesn't matter, as the various US intelligence agencies have regularly, routinely ignored the law as it applies to them, basically since they've existed.
The depressing thing is that there's so little oversight, and of the few who are tasked with it (Senate Intelligence Committee et al), half of them think this behavior is a-okay.
posted by Brak at 5:30 PM on December 16, 2013 [2 favorites]
The depressing thing is that there's so little oversight, and of the few who are tasked with it (Senate Intelligence Committee et al), half of them think this behavior is a-okay.
posted by Brak at 5:30 PM on December 16, 2013 [2 favorites]
To paraphrase Obama: If we can't trust the federal government to obey the law, we've got some problems.
posted by anemone of the state at 5:33 PM on December 16, 2013
posted by anemone of the state at 5:33 PM on December 16, 2013
Since the only part of the Constitution that matters to most people is the Second Amendment, not sure there will be much furor over this, unfortunately.
posted by fifteen schnitzengruben is my limit at 5:34 PM on December 16, 2013 [3 favorites]
posted by fifteen schnitzengruben is my limit at 5:34 PM on December 16, 2013 [3 favorites]
Hooray! Now only the Chinese and Google will be reading my email! I kid. Slightly
posted by Going To Maine at 5:34 PM on December 16, 2013 [1 favorite]
posted by Going To Maine at 5:34 PM on December 16, 2013 [1 favorite]
Not to worry. The carefully ensconced justices in the higher venues will set all this aright. As you were...
posted by jim in austin at 5:35 PM on December 16, 2013
posted by jim in austin at 5:35 PM on December 16, 2013
You just know that our lawmakers' response is gonna be "This is problematic. We need to be more specific. Let's just make all these activities expressly permitted. We can't let the terrorists take away our freedoms."
Also, extensive and comprehensively timestamped screendumps of the judge's porn browsing sessions/sex chats/other private indiscretions will mysteriously appear online.
posted by acb at 5:35 PM on December 16, 2013
Also, extensive and comprehensively timestamped screendumps of the judge's porn browsing sessions/sex chats/other private indiscretions will mysteriously appear online.
posted by acb at 5:35 PM on December 16, 2013
Does anyone really think the NSA cares what some court says? At most the agency will say "We're sorry. We don't do it again." Then they'll go right out and do it again.
posted by Longtime Listener at 5:36 PM on December 16, 2013 [8 favorites]
posted by Longtime Listener at 5:36 PM on December 16, 2013 [8 favorites]
Does anyone really think the NSA cares what some court says? At most the agency will say "We're sorry. We don't do it again." Then they'll go right out and do it again.
According to the link I cited above, history shows that this is exactly right.
posted by Brak at 5:38 PM on December 16, 2013
According to the link I cited above, history shows that this is exactly right.
posted by Brak at 5:38 PM on December 16, 2013
There is no way this court case would be happening with Snowden's leaks.
I assume you meant to type "without," but if you didn't, what does that mean?
That point is important, though: the NSA is not about to defend this with any more effort than necessary, I would think, because the only reason they did it in the first place is that they thought nobody would ever catch them. They have never claimed that they had any legal defense for this surveillance and information-gathering; however, despite the fact that the Total/Terrorist Information Awareness scheme was defunded about ten years ago, Snowden's revelations have now proven that some aspects of the program were continued in secret. It's plainly an abuse of power, in the sense that the NSA is using its capabilities to do things that are well beyond its mandate, and, as Judge Leon said, very likely unconstitutional. If a ruling indicating that comes down from the Supreme Court, presumably the NSA will be told to stop doing this.
But what then? We only know about this data-gathering scheme because someone broke the rules to inform the public, so if the NSA wanted to, presumably they could make some public statements about how transparency is important for a vital democracy etc. and then do continue doing something functionally identical anyway. By its very nature, the NSA's operations are supposed to be secret, so how would an independent regulatory agency for intelligence even be set up?
This ruling itself is a victory for justice, but it's not clear to me how any real changes would emerge from this whole process. There's an inherent problem in the relationship between what security agencies are now capable of doing, what they are legally entitled to be doing, and whether anyone outside the agency knows about it. The only sensible protection against abuse that I can think of is already in the constitution, so what, if anything, can really be done?
posted by clockzero at 5:39 PM on December 16, 2013 [2 favorites]
I assume you meant to type "without," but if you didn't, what does that mean?
That point is important, though: the NSA is not about to defend this with any more effort than necessary, I would think, because the only reason they did it in the first place is that they thought nobody would ever catch them. They have never claimed that they had any legal defense for this surveillance and information-gathering; however, despite the fact that the Total/Terrorist Information Awareness scheme was defunded about ten years ago, Snowden's revelations have now proven that some aspects of the program were continued in secret. It's plainly an abuse of power, in the sense that the NSA is using its capabilities to do things that are well beyond its mandate, and, as Judge Leon said, very likely unconstitutional. If a ruling indicating that comes down from the Supreme Court, presumably the NSA will be told to stop doing this.
But what then? We only know about this data-gathering scheme because someone broke the rules to inform the public, so if the NSA wanted to, presumably they could make some public statements about how transparency is important for a vital democracy etc. and then do continue doing something functionally identical anyway. By its very nature, the NSA's operations are supposed to be secret, so how would an independent regulatory agency for intelligence even be set up?
This ruling itself is a victory for justice, but it's not clear to me how any real changes would emerge from this whole process. There's an inherent problem in the relationship between what security agencies are now capable of doing, what they are legally entitled to be doing, and whether anyone outside the agency knows about it. The only sensible protection against abuse that I can think of is already in the constitution, so what, if anything, can really be done?
posted by clockzero at 5:39 PM on December 16, 2013 [2 favorites]
Maybe we could get a Truth and Reconciliation committee together for 9/11 war criminals who set up and protected these programs. There's no way we could expect to see Cheney, Obama, Alexander and telecom execs put in front of a judge for violating our rights—they are all too powerful—but if it sets up Snowden with a well-earned pardon and gets all the dirt exposed to sunlight, maybe letting them go would be a worthwhile trade.
posted by Blazecock Pileon at 5:41 PM on December 16, 2013 [2 favorites]
posted by Blazecock Pileon at 5:41 PM on December 16, 2013 [2 favorites]
Benny: that's exactly what happened in 2007 when it became clear that not only was all this spying going on, but corporations were willing participants. So Congress indemnified the corporations.
posted by professor plum with a rope at 5:42 PM on December 16, 2013
posted by professor plum with a rope at 5:42 PM on December 16, 2013
We just need to dismantle the NSA entirely. Nuke it from orbit. It's the only way to be sure.
But we definitely don't want that; rather, we actually want an NSA that faithfully serves the interest of the people and our democratically-elected government. We should have the ability to intercept any communication anywhere in the world, while simultaneously needing that ability to be used with the utmost discretion and only in the pursuit of achieving legitimate goals. So if we could determine by fiat how the NSA would work, how would we structure it so that it has the best capabilities which current technology offers, but only uses them in the ways the public can abide by, while also maintaining the secrecy of their operations which is a necessary condition for their proper functioning?
posted by clockzero at 5:45 PM on December 16, 2013 [4 favorites]
But we definitely don't want that; rather, we actually want an NSA that faithfully serves the interest of the people and our democratically-elected government. We should have the ability to intercept any communication anywhere in the world, while simultaneously needing that ability to be used with the utmost discretion and only in the pursuit of achieving legitimate goals. So if we could determine by fiat how the NSA would work, how would we structure it so that it has the best capabilities which current technology offers, but only uses them in the ways the public can abide by, while also maintaining the secrecy of their operations which is a necessary condition for their proper functioning?
posted by clockzero at 5:45 PM on December 16, 2013 [4 favorites]
So if we could determine by fiat how the NSA would work, how would we structure it so that it has the best capabilities which current technology offers, but only uses them in the ways the public can abide by, while also maintaining the secrecy of their operations which is a necessary condition for their proper functioning?
Dismantle the NSA and create a new, completely transparent agency with the sole goal of defensive network security for the Federal Government.
posted by anemone of the state at 5:48 PM on December 16, 2013 [2 favorites]
Dismantle the NSA and create a new, completely transparent agency with the sole goal of defensive network security for the Federal Government.
posted by anemone of the state at 5:48 PM on December 16, 2013 [2 favorites]
But we definitely don't want that; rather, we actually want an NSA that faithfully serves the interest of the people and our democratically-elected government. We should have the ability to intercept any communication anywhere in the world, while simultaneously needing that ability to be used with the utmost discretion and only in the pursuit of achieving legitimate goals. So if we could determine by fiat how the NSA would work, how would we structure it so that it has the best capabilities which current technology offers, but only uses them in the ways the public can abide by, while also maintaining the secrecy of their operations which is a necessary condition for their proper functioning?
The first step: repeal all regulations that can be used to force US-based or US-owned companies to install back doors/secretly compromise their users' security, and make this as transparent as possible. Then both the NSA and its equally undisarmed rival counterparts across the world can hoover up all the encrypted traffic they want. Also, communications companies based in countries with surveillance laws will be at a commercial disadvantage; everybody wins.
posted by acb at 5:50 PM on December 16, 2013
The first step: repeal all regulations that can be used to force US-based or US-owned companies to install back doors/secretly compromise their users' security, and make this as transparent as possible. Then both the NSA and its equally undisarmed rival counterparts across the world can hoover up all the encrypted traffic they want. Also, communications companies based in countries with surveillance laws will be at a commercial disadvantage; everybody wins.
posted by acb at 5:50 PM on December 16, 2013
Look, guys, there are at least some things we need the NSA for. If we dismantle it there will be no one to bring supplies to the base on the dark side of the Moon and Elvis will starve to death.
posted by XMLicious at 5:55 PM on December 16, 2013 [2 favorites]
posted by XMLicious at 5:55 PM on December 16, 2013 [2 favorites]
I can see where we want to protect ourselves from a potential danger. Hence the gathering of information.
We are living in a time where many countries have built nuclear weapons. There are countries that do not have a complete accounting of their weapons. (Pakistan, the former Soviet Union, others). There is a good chance that one may be for sale on the open market. There are fanatics who - given the chance - would gladly hide one in a shipping container and send it to a US port - or simply put it on a yacht and sail it into Boston harbor.
At some point you have to realize that many of these American efforts are actually trying to protect the country from a devastating blow. But now we see they're also being used to line pockets of investors.
The lack of oversight of these programs is devastating to the foundations of which we were born.
Yes, do the things to protect our nation, but for gods sake appoint watchers over the watchmen.
posted by Bighappyfunhouse at 5:56 PM on December 16, 2013
We are living in a time where many countries have built nuclear weapons. There are countries that do not have a complete accounting of their weapons. (Pakistan, the former Soviet Union, others). There is a good chance that one may be for sale on the open market. There are fanatics who - given the chance - would gladly hide one in a shipping container and send it to a US port - or simply put it on a yacht and sail it into Boston harbor.
At some point you have to realize that many of these American efforts are actually trying to protect the country from a devastating blow. But now we see they're also being used to line pockets of investors.
The lack of oversight of these programs is devastating to the foundations of which we were born.
Yes, do the things to protect our nation, but for gods sake appoint watchers over the watchmen.
posted by Bighappyfunhouse at 5:56 PM on December 16, 2013
I assume you meant to type "without"
Yes, sorry. I meant to say "There is no way this court case would be happening without Snowden's leaks." Specifically, previous cases have been thrown out because there was no public evidence NSA was wholesale spying on Americans. Now we know for sure.
I'm reluctantly of the opinion that it's necessary for the US to allow an organization like NSA to spy on everyone in the world, including US citizens. Part of the Snowden revelation isn't just that NSA is collecting so much data, it's that they're doing it competently, usefully. I believe that capability can be in the best interest in the US, and therefore my own.
But that great power needs to be moderated with significant oversight, transparency, and review. The problem with the current state of things is the NSA does not have meaningful oversight. They lie to Congress, they bluster the courts claiming there's nothing to review, their secret review court is a joke. They still pretend they operate under the original executive order which forbids spying on Americans, while spying left and right on Americans. It's broken.
Without oversight the NSA is dangerous to democracy. So I welcome that we're finally getting some open judicial review. It's going to be a long pain-in-the-ass process for NSA, but I think it makes the country stronger to do its spying with oversight.
posted by Nelson at 5:57 PM on December 16, 2013 [2 favorites]
Yes, sorry. I meant to say "There is no way this court case would be happening without Snowden's leaks." Specifically, previous cases have been thrown out because there was no public evidence NSA was wholesale spying on Americans. Now we know for sure.
I'm reluctantly of the opinion that it's necessary for the US to allow an organization like NSA to spy on everyone in the world, including US citizens. Part of the Snowden revelation isn't just that NSA is collecting so much data, it's that they're doing it competently, usefully. I believe that capability can be in the best interest in the US, and therefore my own.
But that great power needs to be moderated with significant oversight, transparency, and review. The problem with the current state of things is the NSA does not have meaningful oversight. They lie to Congress, they bluster the courts claiming there's nothing to review, their secret review court is a joke. They still pretend they operate under the original executive order which forbids spying on Americans, while spying left and right on Americans. It's broken.
Without oversight the NSA is dangerous to democracy. So I welcome that we're finally getting some open judicial review. It's going to be a long pain-in-the-ass process for NSA, but I think it makes the country stronger to do its spying with oversight.
posted by Nelson at 5:57 PM on December 16, 2013 [2 favorites]
jcreigh: We just need to dismantle the NSA entirely. Nuke it from orbit. It's the only way to be sure.
clockzero: But we definitely don't want that
Speak for yourself.
posted by Noisy Pink Bubbles at 6:02 PM on December 16, 2013 [3 favorites]
We should have the ability to intercept any communication anywhere in the world
Why?
posted by AElfwine Evenstar at 6:13 PM on December 16, 2013 [15 favorites]
Why?
posted by AElfwine Evenstar at 6:13 PM on December 16, 2013 [15 favorites]
"We should have the ability to intercept any communication anywhere in the world."
As I understand it, the capabilities of the NSA rely on intercepting all communication, and they are unable to simply intercept just any communication.
posted by klarck at 6:20 PM on December 16, 2013
As I understand it, the capabilities of the NSA rely on intercepting all communication, and they are unable to simply intercept just any communication.
posted by klarck at 6:20 PM on December 16, 2013
We just need to dismantle the NSA entirely. Nuke it from orbit. It's the only way to be sure.
I don't think that would do much. Someone else would just continue that work in one form or another: FBI, CIA, DIA, DoD, or some other agency. And there's probably half a dozen other countries and maybe even a couple of private entities looking to counter US efforts and also attempt to have their own mass surveillance programs in place.
It's kind of like nuclear weapons. Just like how nobody likes being watched, nobody likes everything being blown to smithereens. Yet, there's still more nuclear weapons than ever, even after 70 years.
posted by FJT at 6:47 PM on December 16, 2013
I don't think that would do much. Someone else would just continue that work in one form or another: FBI, CIA, DIA, DoD, or some other agency. And there's probably half a dozen other countries and maybe even a couple of private entities looking to counter US efforts and also attempt to have their own mass surveillance programs in place.
It's kind of like nuclear weapons. Just like how nobody likes being watched, nobody likes everything being blown to smithereens. Yet, there's still more nuclear weapons than ever, even after 70 years.
posted by FJT at 6:47 PM on December 16, 2013
as mentioned recently, I design large-scale phone systems. currently for one of the world's largest non-profit research institutions. funded mainly by the US Navy and the US DoD.
we get requests all the time about users wanting to be able to record calls and/or conferences. good luck, there.
our immediate categorical response is, basically: "hell, no." ideologically, our group is all about privacy. in a larger, more litigious-and-liability-adjacent scale, we agree with our corporate attorneys, that, also: "hell, no."
we are small. we do chatter with mcmurdo, the ISS, random orbital telescopes, ships at sea, and Mars-based automatons. we have plenty of closets - but not a crazy 641A closet. we pipe plenty of secure traffic - voice, data, and other. but we don't save it. on principle. we mf-in delete it, on principle. (ok maybe on a 7-day logrotate basis)
I fully support Judge Richard Leon's thoughts. I also have the opinion of Larry Klayman, given his past behavior, as an absolute Nut, and cannot agree with anything previous, but the current case is certainly worthy of thought.
posted by dorian at 6:49 PM on December 16, 2013 [6 favorites]
we get requests all the time about users wanting to be able to record calls and/or conferences. good luck, there.
our immediate categorical response is, basically: "hell, no." ideologically, our group is all about privacy. in a larger, more litigious-and-liability-adjacent scale, we agree with our corporate attorneys, that, also: "hell, no."
we are small. we do chatter with mcmurdo, the ISS, random orbital telescopes, ships at sea, and Mars-based automatons. we have plenty of closets - but not a crazy 641A closet. we pipe plenty of secure traffic - voice, data, and other. but we don't save it. on principle. we mf-in delete it, on principle. (ok maybe on a 7-day logrotate basis)
I fully support Judge Richard Leon's thoughts. I also have the opinion of Larry Klayman, given his past behavior, as an absolute Nut, and cannot agree with anything previous, but the current case is certainly worthy of thought.
posted by dorian at 6:49 PM on December 16, 2013 [6 favorites]
We should have the ability to intercept any communication anywhere in the world, while simultaneously needing that ability to be used with the utmost discretion and only in the pursuit of achieving legitimate goals.
The first excludes the second; if you have the capability it will be used. The only way to not use it is not to have it, but that genie is long out of the bottle. Technology has made it too easy to snoop for governments, businesses and others not to do so.
The only way to fight that is to ruthlessly defund state snoopers like the NSA and equally ruthlessly prosecute any private party that breaks privacy and data laws.
posted by MartinWisse at 4:54 AM on December 17, 2013 [1 favorite]
The first excludes the second; if you have the capability it will be used. The only way to not use it is not to have it, but that genie is long out of the bottle. Technology has made it too easy to snoop for governments, businesses and others not to do so.
The only way to fight that is to ruthlessly defund state snoopers like the NSA and equally ruthlessly prosecute any private party that breaks privacy and data laws.
posted by MartinWisse at 4:54 AM on December 17, 2013 [1 favorite]
Wasn't 60 Minutes once the gold standard of TV investigative journalism or was it always crap?
posted by whuppy at 5:00 AM on December 17, 2013 [1 favorite]
posted by whuppy at 5:00 AM on December 17, 2013 [1 favorite]
It wasn't always crap, but it has been crap for a very long time.
posted by Kirth Gerson at 5:49 AM on December 17, 2013 [1 favorite]
posted by Kirth Gerson at 5:49 AM on December 17, 2013 [1 favorite]
If we dismantle it there will be no one to bring supplies to the base on the dark side of the Moon and Elvis will starve to death
He knew what the risks were, I say let him die!
posted by pjern at 6:41 AM on December 17, 2013 [6 favorites]
He knew what the risks were, I say let him die!
posted by pjern at 6:41 AM on December 17, 2013 [6 favorites]
Wasn't 60 Minutes once the gold standard of TV investigative journalism or was it always crap?
It was back during the Don Hewitt days, but I think the rise of 24 hour news channels killed it (and any decent producer skipped to Frontline long ago). I have the burden of being a fan of an NFL team in the AFC conference which means 10+ Sundays a year I get a 3 hour dose of ads for CBS. One they've been running recently calls 60 Minutes "America's #1 news magazine" and every time (probably because I like to drink a beer or six to ease the pain of the CBS commentators) I shout, "Who the F is in second place?" I gave up watching 60 Minutes years ago when it turned into "Let's Fellate Famous Americans Uncritically". They trot out Lesley Stahl, et al to smile bovinely while some general or actor or person randomly thrust into the news cycle self-aggrandizes. The days of Morley Safer or Mike Wallace exposing scummy corporations is long gone.
The last two Sundays have been a barrage of ads for their interviews with Jeff Bezos and Keith Alexander. I had no illusions about how those would go.
posted by yerfatma at 7:37 AM on December 17, 2013 [1 favorite]
It was back during the Don Hewitt days, but I think the rise of 24 hour news channels killed it (and any decent producer skipped to Frontline long ago). I have the burden of being a fan of an NFL team in the AFC conference which means 10+ Sundays a year I get a 3 hour dose of ads for CBS. One they've been running recently calls 60 Minutes "America's #1 news magazine" and every time (probably because I like to drink a beer or six to ease the pain of the CBS commentators) I shout, "Who the F is in second place?" I gave up watching 60 Minutes years ago when it turned into "Let's Fellate Famous Americans Uncritically". They trot out Lesley Stahl, et al to smile bovinely while some general or actor or person randomly thrust into the news cycle self-aggrandizes. The days of Morley Safer or Mike Wallace exposing scummy corporations is long gone.
The last two Sundays have been a barrage of ads for their interviews with Jeff Bezos and Keith Alexander. I had no illusions about how those would go.
posted by yerfatma at 7:37 AM on December 17, 2013 [1 favorite]
One district judge means nothing, in the unlikely event that the NSA has nothing to threaten the Appellate Panel with, Anthony Kennedy is just waiting to side with the 4 executive power rubber stamps. And its not even a given that the "liberal" justices would find anything unconstitutional, Kagan, Soto and Breyer aren't exactly privacy and civil liberty advocates. And even if SCOTUS somehow decided to slightly curtail domestic spying, Congress would spring into action retroactively whitewashing it all and granting the NSA even more power. Nothing moves Congress faster than a threat to the Forever War on [insert broad topic here], except maybe a threat to their 1% owners.
posted by T.D. Strange at 8:11 AM on December 17, 2013 [1 favorite]
posted by T.D. Strange at 8:11 AM on December 17, 2013 [1 favorite]
Scott Lemieux: Four Takeaways from Yesterday's NSA Ruling
posted by tonycpsu at 9:27 AM on December 17, 2013 [1 favorite]
posted by tonycpsu at 9:27 AM on December 17, 2013 [1 favorite]
From anemone of the state's link
Alexander went a step further, comparing Snowden to a murderer. "This is analogous to a hostage taker taking 50 people hostage, shooting 10 and then say, 'if you give me full amnesty I'll let the other 40 go.'"
This statement is untenable.
In any decent society Alexander would be relieved of his position immediately.
posted by adamvasco at 10:11 AM on December 17, 2013 [2 favorites]
Alexander went a step further, comparing Snowden to a murderer. "This is analogous to a hostage taker taking 50 people hostage, shooting 10 and then say, 'if you give me full amnesty I'll let the other 40 go.'"
This statement is untenable.
In any decent society Alexander would be relieved of his position immediately.
posted by adamvasco at 10:11 AM on December 17, 2013 [2 favorites]
Nelson: I'm reluctantly of the opinion that it's necessary for the US to allow an organization like NSA to spy on everyone in the world, including US citizens. Part of the Snowden revelation isn't just that NSA is collecting so much data, it's that they're doing it competently, usefully. I believe that capability can be in the best interest in the US, and therefore my own.
I strenuously disagree that this is in the best interest of the US. Letting the NSA spy on everyone is inherently destructive to democracy. It's too powerful an ability - they can easily use it to escape oversight, and then pursue whatever independent political agenda they have. The NSA could easily become a major political player behind the scenes with zero democratic oversight, as the security/intelligence agencies are in some other countries (Pakistan, for instance). Knowing where all of the skeletons are buried can be pretty easily parlayed into running a country.
posted by Mitrovarr at 10:33 AM on December 17, 2013 [4 favorites]
I strenuously disagree that this is in the best interest of the US. Letting the NSA spy on everyone is inherently destructive to democracy. It's too powerful an ability - they can easily use it to escape oversight, and then pursue whatever independent political agenda they have. The NSA could easily become a major political player behind the scenes with zero democratic oversight, as the security/intelligence agencies are in some other countries (Pakistan, for instance). Knowing where all of the skeletons are buried can be pretty easily parlayed into running a country.
posted by Mitrovarr at 10:33 AM on December 17, 2013 [4 favorites]
Look, guys, there are at least some things we need the NSA for. If we dismantle it there will be no one to bring supplies to the base on the dark side of the Moon and Elvis will starve to death.
Is it really a crime to kill someone if you already have their death-certificate which clearly states natural causes, somewhere else, and your alibi is that back then you weren't born yet?
posted by anonymisc at 10:47 AM on December 17, 2013 [1 favorite]
Is it really a crime to kill someone if you already have their death-certificate which clearly states natural causes, somewhere else, and your alibi is that back then you weren't born yet?
posted by anonymisc at 10:47 AM on December 17, 2013 [1 favorite]
The NSA's attitude toward the press is, well, disturbing. There were repeated complaints about the ways in which recent reportage of the NSA was warped or lacking context. To be fair, this kind of griping is a staple of officials across the entire federal government. Some of the NSA folks went further, however. One official accused some media outlets of "intentionally misleading the American people," which is a pretty serious accusation. This official also hoped that the Obama administration would crack down on these reporters, saying, "I have some reforms for the First Amendment."
posted by Blazecock Pileon at 12:33 PM on December 17, 2013
posted by Blazecock Pileon at 12:33 PM on December 17, 2013
I think one of the most significant aspects of this ruling is that it directly rebuts the theory that the NSA metadata collection, even without considering any collection of "content", is analogous to the capture of the "pen register," and thereby permitted under the Smith v. Maryland case, 442 U.S. 735 (1979).
Since the "pen register" is ancient technology at this point, for those who have not taken a constitutional law class: the holding of Smith is essentially that a person has no reasonable expectation of privacy in a listing of the numbers he or she has called, since it is generally known that the phone company keeps records (out of the customer's control) of such things.
As Judge Leon (a Bush appointee) held, beginning at page 44 of the slip opinion:
Finally, the "pen register" distinction is of special interest to the Metafilter community because there is at least one user who has loudly and repeatedly emphasized his belief that the program is legal entirely on the basis of an analogy to the pen register collection. In light of jessamyn's injunction above to avoid "picking fights" on this issue, I will not call out that person by name or say more about the content and manner of his posts, but if you Google for "pen register site:metafilter.com" you will be able to see what I mean. This holding rebuts all of those arguments and while it is, of course, subject to further appeal, at the very least it shows that well-educated, highly qualified minds can differ on this issue and certainly one is not stupid or ignorant for believing the program to be illegal even in the face of Smith.
posted by Joey Buttafoucault at 12:54 PM on December 17, 2013 [15 favorites]
Since the "pen register" is ancient technology at this point, for those who have not taken a constitutional law class: the holding of Smith is essentially that a person has no reasonable expectation of privacy in a listing of the numbers he or she has called, since it is generally known that the phone company keeps records (out of the customer's control) of such things.
As Judge Leon (a Bush appointee) held, beginning at page 44 of the slip opinion:
The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, "whether the installation and use of a pen register constitutes a 'search' within the meaning of the Fourth Amendment," id. at 736 - under the circumstances addressed and contemplated in that case - is a far cry from the issue in this case.(italics in the original, bold emphasis added). A long and detailed justification of this distinction follows; to summarize, it relies on these bases:
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 thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now....
Nor could the Court in 1979 have ever imagined how the citizens of 2013 would interact with their phones. For the many reasons discussed below, I am convinced that the surveillance program now before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.
- First, the pen register in Smith was only in place for a few days, whereas the NSA program has a historical "look back" of 5 years and has no target end date (slip op at 47);
- Second, the pen register is an example of the government obtaining an existing set of information from a third party, whereas the NSA system amounts to the government and private compan(ies) setting up a new "joint intelligence-gathering operation," which citizens might reasonably not expect (slip op at 48+);
- Third, the NSA program of collecting and analyzing the phone data of (up to) everyone in the US is "almost-Orwellian" and would have been "science fiction" in 1979 at the time of Smith - it is just too different in scope to be comparable (slip op at 49+);
- Finally, "and most importantly, not only is the Government's ability to collect, store, and analyze phone data greater now than it was in 1979, but the nature and quantity of the information contained in people's telephony metadata is much greater, as well." Slip op at 50.
Finally, the "pen register" distinction is of special interest to the Metafilter community because there is at least one user who has loudly and repeatedly emphasized his belief that the program is legal entirely on the basis of an analogy to the pen register collection. In light of jessamyn's injunction above to avoid "picking fights" on this issue, I will not call out that person by name or say more about the content and manner of his posts, but if you Google for "pen register site:metafilter.com" you will be able to see what I mean. This holding rebuts all of those arguments and while it is, of course, subject to further appeal, at the very least it shows that well-educated, highly qualified minds can differ on this issue and certainly one is not stupid or ignorant for believing the program to be illegal even in the face of Smith.
posted by Joey Buttafoucault at 12:54 PM on December 17, 2013 [15 favorites]
pjern: "If we dismantle it there will be no one to bring supplies to the base on the dark side of the Moon and Elvis will starve to death
He knew what the risks were, I say let him die!"
After all he's done for us? Not to mention the Martian Free Trade Guilds...
posted by IAmBroom at 1:28 PM on December 17, 2013 [2 favorites]
He knew what the risks were, I say let him die!"
After all he's done for us? Not to mention the Martian Free Trade Guilds...
posted by IAmBroom at 1:28 PM on December 17, 2013 [2 favorites]
Further to adamvasco's extract of anemone of the state's link, the very next comment from Alexander is "I think people have to be held accountable for their actions."
This would be the same Alexander who supervised a massive extra-constitutional surveillance effort, lied about it to Congress in order to avoid being held to account, and has as yet to face sanction for either action. The brass neck is astonishing. There can be no clearer illustration of the reality that the powerful are not subject to the same laws as the rest of us. They are getting to the stage that they can't even be arsed trying to pretend that they are.
posted by Jakey at 2:52 PM on December 17, 2013 [2 favorites]
This would be the same Alexander who supervised a massive extra-constitutional surveillance effort, lied about it to Congress in order to avoid being held to account, and has as yet to face sanction for either action. The brass neck is astonishing. There can be no clearer illustration of the reality that the powerful are not subject to the same laws as the rest of us. They are getting to the stage that they can't even be arsed trying to pretend that they are.
posted by Jakey at 2:52 PM on December 17, 2013 [2 favorites]
fwiw, An NSA Coworker Remembers The Real Edward Snowden: 'A Genius Among Geniuses'
watching the 60m report with 'unprecedented access' inside the NSA; it looked like they were just trying to protect their budget, esp the 'bios plot'...
also btw, Edward Snowden offers to help Brazil over US spying in return for asylum
posted by kliuless at 3:03 PM on December 17, 2013 [1 favorite]
watching the 60m report with 'unprecedented access' inside the NSA; it looked like they were just trying to protect their budget, esp the 'bios plot'...
also btw, Edward Snowden offers to help Brazil over US spying in return for asylum
posted by kliuless at 3:03 PM on December 17, 2013 [1 favorite]
Tone Deaf NSA Officials Tell Reporter It's Time To Reform The First Amendment
Ed Snowden Sends Open Letter To Brazil... Which The Press Blatantly Misrepresents
posted by jeffburdges at 4:25 PM on December 17, 2013 [2 favorites]
Ed Snowden Sends Open Letter To Brazil... Which The Press Blatantly Misrepresents
posted by jeffburdges at 4:25 PM on December 17, 2013 [2 favorites]
Brazil not considering Snowden asylum because Snowden wasn't asking for it in the first place
posted by anemone of the state at 5:32 PM on December 17, 2013 [1 favorite]
posted by anemone of the state at 5:32 PM on December 17, 2013 [1 favorite]
If Brazil offered Snowden asylum, that'd piss the US off royally, possibly to the point of authorising 1960s-style regime-change operations against the dangerous leftists who made the offer. It wouldn't be de jure an act of war against the US in international law, but in practice would amount to such.
Though this point is moot; in practice, Snowden's chances of making it across NATO airspace and the hostile, heavily monitored Atlantic are less than a snowball's hope in hell by several orders of magnitude. And diplomatic protection won't help him any more than it helped the Venezuelan ambassador returning from Russia.
posted by acb at 5:51 PM on December 17, 2013
Though this point is moot; in practice, Snowden's chances of making it across NATO airspace and the hostile, heavily monitored Atlantic are less than a snowball's hope in hell by several orders of magnitude. And diplomatic protection won't help him any more than it helped the Venezuelan ambassador returning from Russia.
posted by acb at 5:51 PM on December 17, 2013
The NSA will make an example out of that judge to remind the other judges what happens when they step out of line.
posted by double block and bleed at 6:37 PM on December 17, 2013
posted by double block and bleed at 6:37 PM on December 17, 2013
It wouldn't be de jure an act of war against the US in international law, but in practice would amount to such.
Amazing that this is even a suggestible thought, given that Brazil is the victim.
posted by Blazecock Pileon at 9:23 PM on December 17, 2013 [3 favorites]
Amazing that this is even a suggestible thought, given that Brazil is the victim.
posted by Blazecock Pileon at 9:23 PM on December 17, 2013 [3 favorites]
Amazing that this is even a suggestible thought, given that Brazil is the victim.
Hegemons tend to act this way.
posted by AElfwine Evenstar at 9:45 PM on December 17, 2013 [1 favorite]
Hegemons tend to act this way.
posted by AElfwine Evenstar at 9:45 PM on December 17, 2013 [1 favorite]
Crossposted from the other open NSA thread:
Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply
Automation and the Fourth Amendment
posted by AElfwine Evenstar at 11:14 PM on December 17, 2013 [1 favorite]
Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply
Automation and the Fourth Amendment
posted by AElfwine Evenstar at 11:14 PM on December 17, 2013 [1 favorite]
The Real Purpose of Oakland's Surveillance Center: City leaders have argued that Oakland needs a massive surveillance system to combat violent crime, but internal documents reveal that city staffers are also focused on tracking political protesters.
posted by homunculus at 9:56 AM on December 18, 2013 [3 favorites]
posted by homunculus at 9:56 AM on December 18, 2013 [3 favorites]
internal documents reveal that city staffers are also focused on tracking political protesters.
Damnit. I trusted thoseguys assholes at their word. That surveillance system rang all my alarm bells, but they passionately argued there was a pressing need affecting real lives, and the violence was shocking, and I thought maybe I was being unfairly strident about potential for abuse and too focused on principle.
But no. From the start their slimy focus was intent on finding new ways to violate constitutional rights. Even as the already-struggling city finances were bleeding into compensation payouts stemming from its previous orgies of abuses.
This is why we can't have nice things.
posted by anonymisc at 10:37 AM on December 18, 2013
Damnit. I trusted those
But no. From the start their slimy focus was intent on finding new ways to violate constitutional rights. Even as the already-struggling city finances were bleeding into compensation payouts stemming from its previous orgies of abuses.
This is why we can't have nice things.
posted by anonymisc at 10:37 AM on December 18, 2013
You Are a Rogue Device
A New Apparatus Capable of Spying on You Has Been Installed Throughout Downtown Seattle. Very Few Citizens Know What It Is, and Officials Don’t Want to Talk About It.
posted by Blazecock Pileon at 11:04 AM on December 18, 2013 [2 favorites]
A New Apparatus Capable of Spying on You Has Been Installed Throughout Downtown Seattle. Very Few Citizens Know What It Is, and Officials Don’t Want to Talk About It.
posted by Blazecock Pileon at 11:04 AM on December 18, 2013 [2 favorites]
The Purpose(s) of the Dragnet, Revisited
posted by homunculus at 11:09 AM on December 18, 2013 [1 favorite]
posted by homunculus at 11:09 AM on December 18, 2013 [1 favorite]
I wish the Nobel committee would award Snowden some sort of grand prix, because he needs to become a highly visible and respected world citizen, so much so that he may live. This administration has to start recognizing heroes, not just people who make money, making money for people, with discord and weapons sales.
posted by Oyéah at 12:44 PM on December 18, 2013 [4 favorites]
posted by Oyéah at 12:44 PM on December 18, 2013 [4 favorites]
Report Suggests NSA Engaged In Financial Manipulation, Changing Money In Bank Accounts
White House's Intelligence Review Task Force Suggestions [Surprisingly] More Than Just Cosmetic
Review Panel Urges Wide-Ranging NSA Spying Overhaul
posted by jeffburdges at 8:19 AM on December 19, 2013 [2 favorites]
White House's Intelligence Review Task Force Suggestions [Surprisingly] More Than Just Cosmetic
Review Panel Urges Wide-Ranging NSA Spying Overhaul
posted by jeffburdges at 8:19 AM on December 19, 2013 [2 favorites]
Yes, do the things to protect our nation, but for gods sake appoint watchers over the watchmen.
Qui custodies ipsos custodiet or whatever, my Latin is nonexistent.
The problem is, the system was indeed built that way. There are watchers--judges--who simply became rubber-stamping approval machines, and on the rare occasions they haven't, the NSA has simply ignored them.
What to do? Well, the toothpaste is already way out of the tube so there's no dismantling. Step one, I think, is to completely reform the entire judicial system in the USA. The very idea of elected (or partisan-appointed) judges is an affront to the notion of justice. Judges need freedom in the same way that academics need tenure. Create a nonpartisan, independent commission to nominate people to the bench, and give those people the freedom to make the right decisions.
Perhaps one approach would be to allow the NSA to hoover up everything they can find, but all that information gets stored in databases they cannot access. I mean completely physically separated from anything the NSA can get to. Then when they want to find something out, they should have to do the same thing cops everywhere have to do: show probable cause as to why they need to see X information. A truly independent judge can then evaluate, as other judges do routinely with arrest and search warrants.
Not exactly a system which would remove all abuse, but it would be a start.
Seriously I'm nearly 35 and I am still boggled by the notion of elected and/or partisan-appointed judges, at any level of the judiciary.
posted by feckless fecal fear mongering at 9:19 AM on December 19, 2013 [1 favorite]
Qui custodies ipsos custodiet or whatever, my Latin is nonexistent.
The problem is, the system was indeed built that way. There are watchers--judges--who simply became rubber-stamping approval machines, and on the rare occasions they haven't, the NSA has simply ignored them.
What to do? Well, the toothpaste is already way out of the tube so there's no dismantling. Step one, I think, is to completely reform the entire judicial system in the USA. The very idea of elected (or partisan-appointed) judges is an affront to the notion of justice. Judges need freedom in the same way that academics need tenure. Create a nonpartisan, independent commission to nominate people to the bench, and give those people the freedom to make the right decisions.
Perhaps one approach would be to allow the NSA to hoover up everything they can find, but all that information gets stored in databases they cannot access. I mean completely physically separated from anything the NSA can get to. Then when they want to find something out, they should have to do the same thing cops everywhere have to do: show probable cause as to why they need to see X information. A truly independent judge can then evaluate, as other judges do routinely with arrest and search warrants.
Not exactly a system which would remove all abuse, but it would be a start.
Seriously I'm nearly 35 and I am still boggled by the notion of elected and/or partisan-appointed judges, at any level of the judiciary.
posted by feckless fecal fear mongering at 9:19 AM on December 19, 2013 [1 favorite]
Saab wins Brazil jet deal after NSA spying sours Boeing bid Yey!
posted by jeffburdges at 12:52 PM on December 19, 2013 [2 favorites]
posted by jeffburdges at 12:52 PM on December 19, 2013 [2 favorites]
Saab wins Brazil jet deal after NSA spying sours Boeing bid Yey!
Ironically, Sweden was one of the NSA's partners in tapping undersea cables to Europe. (Sweden, you'll remember, was also secretly a NATO member whilst claiming neutrality, and generally is very good at being Washington's Good Cop.)
Mind you, the other alternative is Russia, and their planes have a less than stellar safety record, so what can one do?
posted by acb at 3:14 PM on December 19, 2013 [1 favorite]
Ironically, Sweden was one of the NSA's partners in tapping undersea cables to Europe. (Sweden, you'll remember, was also secretly a NATO member whilst claiming neutrality, and generally is very good at being Washington's Good Cop.)
Mind you, the other alternative is Russia, and their planes have a less than stellar safety record, so what can one do?
posted by acb at 3:14 PM on December 19, 2013 [1 favorite]
Aa open letter to the people of Brazil by Edward Snowden
posted by jeffburdges at 4:48 AM on December 20, 2013
posted by jeffburdges at 4:48 AM on December 20, 2013
GCHQ and NSA targeted charities, Germans, Israeli PM and EU chief: Unicef and Médecins du Monde were on surveillance list. Targets went well beyond potential criminals and terrorists
posted by homunculus at 10:57 AM on December 21, 2013 [1 favorite]
posted by homunculus at 10:57 AM on December 21, 2013 [1 favorite]
In other news: You'll Never Guess Where This FBI Agent Left a Secret Interrogation Manual
posted by homunculus at 10:18 AM on December 22, 2013 [2 favorites]
posted by homunculus at 10:18 AM on December 22, 2013 [2 favorites]
White House Tries to Prevent Judge From Ruling on Surveillance Efforts (NYT)
posted by AElfwine Evenstar at 11:40 AM on December 22, 2013 [2 favorites]
posted by AElfwine Evenstar at 11:40 AM on December 22, 2013 [2 favorites]
Congress Gives NSA-Controlled US Cyber Command More Resources
posted by jeffburdges at 8:55 AM on December 24, 2013
posted by jeffburdges at 8:55 AM on December 24, 2013
U.S. judge says NSA phone surveillance is lawful
posted by Going To Maine at 1:13 PM on December 27, 2013 [1 favorite]
posted by Going To Maine at 1:13 PM on December 27, 2013 [1 favorite]
A second report, from The Verge: Federal judge rules NSA metadata collection is lawful, dismissing ACLU case
posted by Going To Maine at 1:28 PM on December 27, 2013 [1 favorite]
posted by Going To Maine at 1:28 PM on December 27, 2013 [1 favorite]
Court Decision Exempts Secret Memo From FOIA, Sets Stage For Future Secret Laws To Go Unchallenged
posted by jeffburdges at 6:42 AM on January 8, 2014 [1 favorite]
posted by jeffburdges at 6:42 AM on January 8, 2014 [1 favorite]
"The more I listen to American intelligence officials, the more I edge toward Snowden" - Tom Ricks
posted by jeffburdges at 12:00 PM on January 13, 2014 [1 favorite]
posted by jeffburdges at 12:00 PM on January 13, 2014 [1 favorite]
Germany: The Americans Lied to Us - We Can't Trust Them In Spying Treaties
posted by IAmBroom at 9:28 AM on January 14, 2014 [1 favorite]
posted by IAmBroom at 9:28 AM on January 14, 2014 [1 favorite]
FISA Judges Oppose Intelligence Reform Proposals Aimed At Court
posted by jeffburdges at 3:26 AM on January 16, 2014
posted by jeffburdges at 3:26 AM on January 16, 2014
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posted by uosuaq at 4:58 PM on December 16, 2013 [1 favorite]