Possible Supreme Court cases that could rein in the NSA in 2015

January 3, 2015 4:43 AM

If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases. Detailed, thoughtful piece with lots of links from Ars Technica.
posted by mediareport (23 comments total)

Is that the First Unitarian Church of Kensington in that 3rd case? Because it would be delicious if the law were decided by FUCK v. NSA.
posted by chavenet at 8:16 AM on January 3, 2015 [16 favorites]

I care about this stuff passionately. But I think most Americans don't really give a damn. Even Metafilter is wiped out - people who care can't bear to read any more.

Some of my friends are more politically informed than I am. They've been aware of the surveillance for a very long time. What's disturbing is the reaction of "regular people" - who went seamlessly from, "You're a paranoid nutcase," to "Everyone's always known this, who cares?" from one breath to the next.

I feel that most Americans believe that their leaders are basically well-intentioned individuals who generally put the country's interests ahead of their own, and that this whole surveillance system is part of that benevolent blanket of warmth from our rulers. Given that the prevailing ethos of the United States is that greed and self-interest are the only good and true things, it seems contradictory, but most Americans clearly seem to believe despite all the evidence that their rulers are at a higher moral level than they are.

I think it's going to be extremely hard to break through this shield of "we are the good guys, details are unimportant" - even a smoking gun won't do it. I predict that the best we can hope for from the Supreme Court is that they roll back 10% of the way - but I also think it's quite likely that they will set up rules that simply formalize what we have today and set a precedent that will enable universal surveillance for the rest of the history of the United States of America (may it hopefully be brief if that does happen).

It'd be nice to believe that a later Court decision might roll it back, but it's like a ratchet - the noose only gets tighter. There will always be crime, always be terrorists, and always a new reason to gather more information. The Court has never indicated that it felt that Americans had a right to privacy, and without such a right there really isn't any reason that the government shouldn't spy on you as much as it likes.
posted by lupus_yonderboy at 9:33 AM on January 3, 2015 [21 favorites]

Is that the First Unitarian Church of Kensington in that 3rd case? Because it would be delicious if the law were decided by FUCK v. NSA.

Nope, it's the First Unitarian Church of LA. I actually used to attend the First Unitarian Church of Kensington, though.
posted by Myca at 10:39 AM on January 3, 2015

From the article: "Sensenbrenner filed his own amicus brief in ACLU v. Clapper."

Is there anything different in the Supreme Court's decision-making process when the author of the legislation in question is still alive? Would Sensenbrenner's amicus brief carry any more weight than others because he helped create the Patriot Act, and can illuminate its original intention? I guess my broader question is this: What, if anything, changes about a strict constructionist/originalist judicial approach when there is an option to discover intent straight from the horse's mouth? (Not a lawyer; please excuse terminology errors.)
posted by MonkeyToes at 12:18 PM on January 3, 2015 [2 favorites]

I wish I had as much faith in the Supreme Court as some others do. Regardless of political leanings, the Justices have historically given wide latitude to those agencies who would gladly sacrifice others' liberties for a little bit of national security.
posted by surazal at 12:35 PM on January 3, 2015 [2 favorites]

Most people just don't care, some people have given up and a select few can expect a rough time getting on airplanes for the foreseeable future.
posted by double block and bleed at 12:50 PM on January 3, 2015

MonkeyToes: It depends on the justice, but I know Scalia will avoid reading legislative history and so on for intent in all but a last resort, so i don't think Sensenbrenner's amicus would carry a lot of weight with him.
posted by Navelgazer at 1:09 PM on January 3, 2015

The Court has never indicated that it felt that Americans had a right to privacy, and without such a right there really isn't any reason that the government shouldn't spy on you as much as it likes.

The Right To Privacy by Samuel Warren and Louis D. Brandeis

Apparently the concept was catalyzed by reporters snooping on rich people. What could make a difference now is stories about people like Petraeus getting busted by snooping or embarrassed by snooping. Preferably somebody prominent with a purportedly faultless reputation like Taylor Swift.
posted by bukvich at 1:20 PM on January 3, 2015

Considering i) multiple spectacular felonies have been committed in open view by the NSA, CIA etc and ii) both parties have elected and career officials who will not enforce the prosecution of these lawbreakers or enact any meaningful reform........ what can we expect from strongly-worded opinions from the Supreme Court?
posted by lalochezia at 1:22 PM on January 3, 2015

Well, we could always just elect a president that vows to put an end to these practices.
Oh wait, we already did that. Nevermind.
posted by el io at 1:24 PM on January 3, 2015 [5 favorites]

lalachezia, we can expect the executive to claim the Court has no authority to stop the illegal surveillance because they are executing it under the President's power as commander-in-chief. Incidentally, the same (idiotic) legal theory states that Congress also lacks the power to stop the President from doing whatever the fuck he wants as long as he or she considers us to be at war.

One hopes the Court will someday call bullshit on that given that Congress is the only branch with the power to declare war, but I'm personally not holding my breath on that one.
posted by wierdo at 1:47 PM on January 3, 2015

The President's arguments are the statutory and constitutional ones we'd expect. Not much (or nothing, as far as I can tell) in the way of inherent executive /commander in chief power.
posted by jpe at 1:56 PM on January 3, 2015

The President's legal arguments are state secrets. Not even the NSA was initially given access to the legal justification for their orders. The public still doesn't have access to the secret legal justifications.

I would hope that even the most ardent supporters of ubiquitous surveillance would agree that legal justifications should not be state secrets.
posted by el io at 2:34 PM on January 3, 2015 [1 favorite]

The briefs for the cases wending their ways through the circuit courts are publicly available.
posted by jpe at 3:49 PM on January 3, 2015

jpe: From the linked article:

The PSP's legal justification has been provided by a still highly classified document that President George W. Bush signed on October 4, 2001, entitled "Authorization for specified electronic surveillance activities during a limited period to detect and prevent acts of terrorism within the United States." In fact, the entire legal analysis of EO 12333 was redacted. While the authorization has never been published, the Office of the Director of National Intelligence (ODNI) unexpectedly acknowledged it as part of a declassification review in December 2013. According to that NSA Inspector General draft leaked in 2013, the NSA wasn’t even allowed to see the legal authorization for at least two years.

That's not how democracy should work. When even the secret spy organization isn't allowed to read the secret legal justification for spying on the public, things are seriously fucked.
posted by el io at 4:02 PM on January 3, 2015 [5 favorites]

Inside the NSA's War on Internet Security: US and British intelligence agencies undertake every effort imaginable to crack all types of encrypted Internet communication. The cloud, it seems, is full of holes. The good news: New Snowden documents show that some forms of encryption still cause problems for the NSA.
posted by homunculus at 4:21 PM on January 3, 2015 [1 favorite]

We'd have zero chance of any court cases going forward without Snowden because the courts just ignore the problem if the NSA's victims cannot actually show the NSA is spying on them.

I highly recommend Jacob Appelbaum and Laura Poitras' talk Reconstructing narratives from 31c3, which discusses both that Inside the NSA's War on Internet Security linked by homunculus and A Dubious History of Targeted Killings in Afghanistan.
posted by jeffburdges at 7:20 PM on January 3, 2015

Most people just don't care, some people have given up and a select few can expect a rough time getting on airplanes for the foreseeable future.

I can't tell whether you're joking or not, but some people will certainly read that as not meant seriously. I'm therefore going to disclose something about myself that I don't discuss a lot.

Beginning sometime before September 2013 my real name was placed on a travel list of some sort -- it's hard to say more specifically which list because airlines are not allowed to tell me and nobody will officially confirm anything, even that I am on a list (though several sympathetic parties have, reluctantly, confirmed that to me privately.) But in any case, each and every time I fly on a commercial airline now I can no longer check in in advance (i.e. I can't print boarding passes via a website or a kiosk in the airport) and must present myself to an agent at the ticketing counter where a strange little ritual takes place.

What happens when I get to the ticketing agent is that he or she looks up my reservation, utters a soft exclamation such as "oh!" or "hmmm", and then disappears into the back room with my photo ID without explaining why. They can be gone anywhere from 10 to 40 minutes (you DO NOT want to be in line behind me and being mindful of this if it's an airport with few lines open I generally let people go ahead of me, which slows my check-in process down even further) and although they are not allowed to tell me what they're doing, from what I've been able to observe I believe they are required to make a telephone call somewhere to receive clearance to let me on the plane.

In the grand scheme of things it hasn't been a huge hardship to plan on showing up at the airport an hour early to go through whatever this little farce is supposed to accomplish, though I still have missed my flight on several occasions while waiting for clearance. I am acutely aware that on the scale of "arbitrary government persecution" this is one of the very lowest levels. But at the same time, because of where I live I'm very dependent on air travel (the only other alternatives apart from not traveling at all are a 6 hour ferry ride followed by 1000 miles of driving through Canada* or a very expensive once-weekly 36 hour ferry trip to the lower 48.)

I work remotely for a very understanding international non-profit that has dealt well in the past with having other staff who had problems traveling to or from the USA, and so this hasn't significantly affected my career. But even so I believe that colleagues have been given assignments I would have liked to have received and I think my travel issues were a factor in the final decision who to send. And it certainly could affect my future employment prospects.

Do I believe that I'm on this list because of something I wrote in support of Snowden? Not really, but it's something I have considered. I did write very critically about the NSA in the wake of the Snowden revelations, in online forums, and social media, and to my representative and Senators. It seems unlikely that anyone would have decided to single me out for retaliation, but then I *am* apparently on a list and I wasn't prior to Snowden, and I live a pretty quiet and peaceful life with no valid reason I can think of why my travel should be restricted.

The most likely explanation is that my name is similar to someone else's but the truly diabolical thing about the whole process is that it's forbidden for me to know why I'm on a list or even to get confirmation that I'm on a list at all, although that is obviously deducible by observation. After the second or third time I'd had an identical hassle at check-in, I made an effort to find out what is going on, only to learn that the process is designed to be as opaque and deniable as possible. I live in a small population state and have (for a few more weeks, anyway -- fare thee well Senator Begich) a Senator who was responsive to constituent problems -- the Senator's office assigned a staffer to try to get to the bottom of what was happening to me but even a U.S. Senator's staff could not even get confirmation that an individual was on the list, let alone an explanation about how or why I ended up there.

I'll likely never know why or how I wound up on a list, even a comparatively minor one. But you'd better believe that it crosses my mind before I post some things that I could be placed on a more restrictive list for reasons that are never explained to me and that that could have real repercussions for my professional life and my ability to see my family members. This chilling intent was surely intended by the people who designed this program and it's wrong and profoundly in conflict with what are supposed to be American principles of justice. So.. I'm not sure whether your comment was meant as a joke, but I can assure you it isn't a joke to me.

(*) regarding traveling through Canada -- since this started I haven't left the USA, and I have no idea whether I can expect extra scrutiny when re-entering the country, though I think it's likely, so there's a good chance that avoiding air travel by traveling through Canada would simply expose me to a different, and possibly much worse, type of interference.
posted by Nerd of the North at 1:32 PM on January 4, 2015 [9 favorites]

It was more along the lines of gallows humor. It was my possibly overly-cutesy way of pointing out that there are a million ways for the government to hassle people.
posted by double block and bleed at 5:14 PM on January 4, 2015

Yes, sorry didn't mean to make it sound as if I was taking offense at what you wrote or that it isn't a fitting subject for humor, just pointing out that behind the macabre jokes about the arbitrary and unaccountable security state there truly is a reality that interferes with many people's lives (mine in a very minor way; some people's in a truly catastrophic fashion.)

I shouldn't have said that it isn't a joke to me, because it is very much a continuing subject for me to mock. It's just that it's not only a joke.
posted by Nerd of the North at 6:20 PM on January 4, 2015

Lies and revelations: Why mass surveillance is not about catching the “bad guys”
posted by jeffburdges at 9:12 PM on January 9, 2015

Washington DC's Public Library Will Teach People How to Avoid the NSA
posted by homunculus at 4:31 PM on January 14, 2015 [1 favorite]

UK Legislators Hoping To Rush Through New 'Snooper's Charter' In The Wake Of The Charlie Hebdo Attacks
posted by jeffburdges at 3:38 AM on January 26, 2015