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Comment by jdp23 | Hacker News Reader

Marcy Wheeler has more in a pair of posts on Emptywheel.

- one of the three judges said that the plaintiff didn't have standing because there wasn't explicit evidence that the government was collecting data from Verizon Wireless. [In a followup post, Marcy notes that a recent IG report (obtained by Charlie Savage of the NY Times via a FOIA suit) does explicitly include Verizon Wireless in a list; but this information probably wasn't known in time to include it in arguments in this suit.]

- another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection

- and the third said that the plaintiffs "barely fulfilled the requirements for standing at this threshold stage, Plaintiffs fall short of meeting the higher burden of proof required for a preliminary injunction"

https://www.emptywheel.net/2015/08/28/dc-circuit-reverses-ju...

https://www.emptywheel.net/2015/08/28/government-recently-re...

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> the plaintiff had suffered any harm from the data collection

so you have to prove you've suffered harm from the removal of your rights? They're called rights and the country was founded on protecting them because they're both intrinsically valuable and completely invaluable!

> so you have to prove you've suffered harm from the removal of your rights?

No, you have to be able to establish that you have had your rights violated. The standard that gets referred to as "harm" is more formally "concrete, particularized injury" where "injury" is defined as a violation of a legally-protected interest.

You don't have to prove, e.g., damages from the violation of your rights, but you can't just allege that an action is a violation of people's rights generally, and further that, as a person, you may have been impacted, so therefore you have standing to challenge the action. To have standing to sue, you have to allege with sufficient evidentiary basis that an action actually violated your rights in a concrete way.

So if rights are violated, but the violations are kept secret (eg. secret court gag order, national security, etc)... then you haven't been legally harmed?

Someone may have been harmed, but

Until YOU can prove that YOU have been harmed, YOU don't have standing.

Why doesn't this process lead to an investigation whether data was collected or not about the plaintiff?

In civil lawsuits, investigation to gather facts necessary to meet threshold requirements like standing is the responsibility of the plaintiff before filing suit.

subpoena?

The possibility they may suffer harm is generally not sufficient to confer standing. It has to actually occur.

This is precedent set by the supreme court in http://www.scotusblog.com/case-files/cases/clapper-v-amnesty...

Courts do not decide cases based on speculative future injury.

"To establish Article III standing, an injury must be "concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling." "

Yes, and that's arguably why information from domestic NSA intercepts only gets used when obfuscation through parallel construction is possible.

Under current fourth amendment law, the data collected is likely to be viewed as verizon business records, not as the "papers" or "effects" of the complainant. If that it is the court's analysis then only verizon would have standing to object to the collection of the records, since only verizon would have a possessory interest in them, and only verizon would be harmed by their illegal search or seizure.

This "no standing" argument is really starting to piss me off. Are the judges blind to all the media releases in the past two years, or just pretending to be?

> - another judge said that there wasn't any evidence the plaintiff had suffered any harm from the data collection

Ugh. Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!

> Are the judges blind to all the media releases in the past two years, or just pretending to be?

Judges are supposed to act on the law and the information presented in the cases before them, not on their biases formed from consumption of outside sources like the popular media.

> Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!

Injury of the type necessary to establish standing is a concrete, particularized violation of a legally-protected interest. Actually having one's own documents searched or seized in violation of the Fourth Amendment is such an injury, whether or not it results in additional harms. The problem here is that the court found that the plaintiff had not done enough to demonstrate that their data was seized.

[A crude simplification to make a point]

Judge: "I can't tell the cops to stop secretly spying on everyone because I don't know who they've been spying on"

Plantiff: "Then make them tell us who they've been spying on"

Judge: "I'm sorry you have no standing because you can't prove they've been spying on you, so you can't demand anything"

Yes, I understand this kind of argument is correct in the legal system but it seems to make a mockery of "higher" notions of justice (which I think sometimes the courts take into account and sometimes they don't).

It isn't! In fact, in this very case they are being given the opportunity to obtain evidence from the government to establish standing. Of course, you're right that these efforts may fail, but if they do it will (probably) be because the government invokes the state secrets privilege to refuse to hand over the evidence, not the more kafkaesque problem of being unable to demonstrate standing because you lack standing.

No, actually it is correct in the court system. And therefore the government will make this argument whenever they can. Because if they win on standing, their life becomes easier.

In fact this is what the government won on for https://en.wikipedia.org/wiki/Clapper_v._Amnesty_Internation....

That said, if you meet the standing bar, you still have an uphill battle through the inevitable invocation of the state secrets privilege to avoid giving you access to the facts that would be required to actually have a chance to win the court case...

..invokes the state secrets privilege to refuse to hand over the evidence, not the more kafkaesque problem of being unable to demonstrate standing because you lack standing

Your claim that the either approach is less "kafkaesque" or less Orwellian seems without merit and deplorable.

I understand the legal theory. But given routine violations of the intent of the Constitutional protection from things like civil forfeiture, it seems to me to be merely one piece of a Kafkaesque system that is designed to provide the illusion of rights without any reality to them.

For those who don't know what civil forfeiture is, the government both can and regularly does seize people's property through the polite fiction of suing the property. The person who owned the property then gets to find out that since they are not a party of the lawsuit, they don't have legal standing to complain that THEIR stuff was taken.

(This practice is quite profitable for law enforcement agencies. There are significant civil rights concerns about the unequal way in which they implement the practice against different people...)

> Where does it say in the 4th amendment that it's okay to seize and search all the documents without a warrant, as long as there's "no harm"?!

That is not what they're saying. It is understood that, if it can be shown the plaintiffs' documents were "[unreasonably] seized or searched", there would be an injury. What has not been shown (at least not clearly enough for a preliminary injunction) is that these plaintiffs' documents were searched/seized.

Showing likely irreparable harm is a requirement for any preliminary injunction. A preliminary injunction is an extraordinary remedy issued before a case is heard and decided, in order to prevent ongoing harm during the course of the case. When there is no likelihood of irreparable harm, courts are not supposed to issue a preliminary injunction before hearing the case. In that situation, the court can afford to wait for the full case to be heard, with a proper evidential record, etc., before making any decisions.

Does the 1st Amendment say 'except for obscenity'?

Does the 2nd say 'except for criminals'?

We've long ago tossed out the Constitution and have since just been playing pretend.

Does the 4th amendment say anything about bits flowing through a wire? That doesn't fit into the literal definition of either "paper" or "effect." The Constitution also doesn't even contain the word "privacy." The whole concept was pulled out of someone's "penumbra."

If we're playing the literal interpetation game, then the 4th amendment says nothing more than that the government needs a warrant to do what would for a private person amount to trespass to land or chattels. None of this mosaic theory malarkey.

One of the objections to even adding the Bill of Rights was that it would be taken to limit rights to only those listed. The Bill of Rights and later amendments do not encompass all rights, thus things like privacy do not need to explicitly be listed to count as a right.

My point was of the exact opposite. That the rights it clearly does list are still ignored and have holes punched in them until they look like Swiss cheese (just look at all the different sorts of gun bans in different areas).

> The Bill of Rights and later amendments do not encompass all rights, thus things like privacy do not need to explicitly be listed to count as a right.

Who decides what rights exist?

https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_...

The 9th Amendment was infamously vestigial for most of US history. There were until the New Deal very few SCOTUS cases that even mentioned it, let alone turned on it. In the few cases in which appellants hoped to rely on a notion of "unenumerated yet extant rights", SCOTUS rejected the interpretation.

History also doesn't do much to support an argument that the 9th hides a right to "privacy". The original drafts of the 9th Amendment weren't about unenumerated rights, but about state and local rights versus the power of the federal government. The language was bickered over, but apparently much of the jurisprudence of the 9th that happened anywhere close to the time of the founders was about devolution of state and local power.

See for instance Hugo Black's dissent in Griswold:

    [The Ninth] Amendment was passed, not to
    broaden the powers of this Court or any
    other department of the [Federal
    Government], but as every student of
    history knows, to assure the people that
    the Constitution . ..was intended to
    limit the Federal Government to the
    powers granted expressly or by necessary
    implication. If any broad, unlimited
    power to hold laws unconstitutional
    because they offend what this Court
    conceives to be the "[collective]
    conscience of our people" is vested in
    this Court by the Ninth Amendment
    . . . , it was not given by the Framers,
    but rather has been bestowed on th[is]
    Court by th[is] Court.7

John Locke obviously! ;-)

The Supreme Court's interpretation of the first amendment has gotten much more protective of speech over the last couple of centuries.

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