Federal appeals court says NSA phone metadata collection can continue | Hacker News Reader

Federal appeals court says NSA phone metadata collection can continue

arstechnica.com

180 pointsAdmiralAsshat31 comments

The article's lede ("[y]ou gotta love this twisted logic") makes no sense. The court originally halted the program because it was not authorized by statute. Congress revised the statute to dismantle the program, but provided for a 180 day transition. The ACLU sought an injunction to dismantle the program immediately. The Court held that the 180 day transition period in the USA Freedom Act authorized the program during the wind-down. There is absolutely nothing "twisted" about that logic. It's plainly what Congress intended, and consistent with the court's earlier decision.

If you want to fault the court, fault it for punting on the Constitutional question. The court properly declined to answer it last time, because it could decide the case on the alternate basis that the program was unauthorized by statute (the doctrine of Constitutional avoidance). But this time the question was squarely presented. If the NSA program is unconstitutional, Congress cannot authorize it, even for 180 days.

The court had a valid reason to avoid deciding the constitutional issue: this was a motion for preliminary injunction, and probably an inappropriate context for deciding a major Constitutional question. But it's not clear to me that the court had the discretion to avoid the issue now.

> And as a practical matter, deciding this question a few years from now is more likely to result in a favorable outcome than deciding it now.

You believe that waiting until mass surveillance has been going on for a solid generation to decide is going to return a favorable (illegal, got to stop) outcome? How much further do we have to kick the can down the road while the initial powers that were given are expanded even more with each passing year?

I think history has shown the outcome to be the complete opposite...just looking at the last 15 years has shown us that if you crack open the door (the PATRIOT ACT) to surveillance, it is only going to get pushed completely open a little further down the line. And it will soon become so commonplace that things that wouldn't even be considered at the beginning (CISA) are now enacted with little blowback...if not praise.

Edit: spelling & grammar

The overall trajectory of Constitutional protections is to get more broadly interpreted over time. E.g. the first time the Supreme Court considered wire taps in the 1920s, it decided people could not have a reasonable expectation of privacy in phone conversations because they were sharing them with the phone company. It was only in the 1960s that they reversed course and held that a warrant was required for wiretaps.

Touche. Although, the 2nd is probably the exception to that rule. Which, a bit off topic but I was surprised to not see the NRA railing against CISA for the possibility of gun buyers being put on a 'list' (should a company related to the purchase get hacked and hand over information to the government)

Just a counter-point, Supreme Court has dealt with wiretapping / lawful intercept long before that and the 4th has seen more than its due share of erossion since the invention of the telegraph where we started with the belief that those communications were inviolable. (anti-third party doctrine!)

Discussed a couple weeks ago, there's a beautiful opinion from 1879 which I wish was still in vogue today: https://news.ycombinator.com/item?id=10418845

> The overall trajectory of Constitutional protections is to get more broadly interpreted over time

I'm not sure that that's the case, and at least on the issue of the executive powers of the federal government, it's pretty straightforward to argue that the federal powers specifically have increased over time.

For just one example, marijuana prohibition in 1937 was implemented as an 'impossible tax'[0] specifically because it was believed that Congress didn't have the authority to authorize prohibition of possession of a plant within the states[1][2]. The first prosecution was for failing to pay the tax, not "technically" for possession.

Nowadays, the argument that Congress lacks this power seems quaint!

I'd be willing to say that the overall trajectory of Constitutional protections is a mixed bag, but I'm really not convinced that overall the trend is towards increased Constitutional protections, particularly when it comes to protection from the executive arm of the federal government.

[0] for those who don't know: possession was legal only if you had a stamp that demonstrated you'd paid tax on it. The stamps were impossible to get, therefore the product was impossible to possess legally: https://en.wikipedia.org/wiki/Marihuana_Tax_Act_of_1937#Oper...

[1] The 18th amendment appears to contradict this reasoning, but it actually serves as an example of this. First, the Marihuana[sic] Tax Act was different from a constitutional amendment (which required the approval of the states). Secondly, even alcohol prohibition was implemented in a similarly back-door way (banning "manufacture, sale, or transportation", but not explicitly possession).

[2] (Yes, Congress is the legislative branch rather than the executive, but the question was whether the executive branch can actually obtain these powers at all)

I would say that the overall trajectory is towards more government power.

As for telephone wiretaps, I think technology is a perfectly adequate explanation.

Most people in the 1920s were on party lines. It was common to have the operator who connected you, and multiple neighbors, listening to your call. There really was no reasonable expectation of privacy in that environment.

In the 1960s the system had been upgraded to the point where most people had a reasonable expectation of privacy in their calls.

The PSTN also migrated from human operator-switched connections to machine-routed connections at some point. In the earliest days of telephony, the phone company operator had to listen to at least the first part of your call, so that you could tell her to whom you wanted to be connected. They didn't always stop listening after plugging the appropriate cables into their switchboards.

After machine switching took over, the expectation of a third party listening in on your call disappeared.

So it might not have entirely been a broadening in the interpretation of privacy protections, but a change in the reasonable expectations of the public.

By that measure, you could theoretically make wiretaps legal again by illegally tapping calls for so long that the public expects that you're always doing it. Think of it like an adverse possession of your privacy.

Thank you for this clarification.

As much as I hate the decision, I can understand their reasoning for a preliminary injunction.

If they find that the program is Constitutional, then there would have been damage from dismantling the program. If they find that it is not, little incremental damage is done over what has happened already in the last several years.

My guess is that they expect this to be appealed no matter what they decide, and so are covering their bases.

Exactly. Had the court deemed it unconstitutional, it would be a different story, but that's not what they said. Also, the Freedome Act was signe about 5 months ago, so this only authorizes continued collection for about 4 more weeks.

There are times when the Constitution can be overlooked for the sake of public safety. Abraham Lincoln famously suspended habeas corpus during Civil War riots, and most historians look favorably upon the decision to maintain order during the young United States' most turbulent time in history.

The NSA, on the other hand, not only lacks the rationale of clear and immenent danger for continuing their dragnet program, but it has been shown time and time again that such programs have a minimal, if any, effect on protecting American citizens from acts of terrorism. For the sake of public faith in a democracy with checks and balances, the dragnet should be stopped.

No, there aren't such times. The suspension of habeas corpus by Lincoln was Constitutional:

> Article I, Section 9: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

The fact that that clause is in Article 1 suggests that Congress should be the one to suspend habaes corpus. But Lincoln did it unilaterally. But that is a debatable opinion.

The Southern states were not in a state of rebellion; they had constitutionally seceded.

There is no mention of, or stated process for, secession of states in the Constitution. In Texas v. White:

"Chase, [Chief Justice], ruled in favor of Texas on the ground that the Confederate state government in Texas had no legal existence on the basis that the secession of Texas from the United States was illegal. The critical finding underpinning the ruling that Texas could not secede from the United States was that, following its admission to the United States in 1845, Texas had become part of "an indestructible Union, composed of indestructible states." In practical terms, this meant that Texas has never seceded from the United States."

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

https://en.wikipedia.org/wiki/Texas_v._White

> There is no mention of, or stated process for, secession of states in the Constitution.

You're exactly right! And the Tenth Amendment states quite clearly, 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'

Since the Constitution gives the United States no power over secession, and does not prohibit it, then it's clearly reserved to the respective States, or to the people thereof.

Secession is 100% legal; Texas v. White is no more compelling a precedent than Dred Scott v. Sandford. There's simply no other unbiased way to read the Constitution.

Did Lincoln really overlook the Constitution when suspending habeas corpus?

"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

The circumstances in which Lincoln suspended it seem to fit pretty well within those exceptions.

The 4th Amendment enumerates no exceptions, of course.

"U.S. Supreme Court Chief Justice Roger Taney, sitting as a federal circuit court judge, ruled that the authority to suspend habeas corpus lay exclusively with Congress. Saying that Taney's orders were unconstitutional, President Abraham Lincoln defied them, as did the army under Lincoln's orders, and John Merryman remained inaccessible to the judiciary while Congress remained in recess."

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

Sure, but that doesn't make it so, unless you're one of those folks who holds that Constitutionality is based on the courts' opinion by definition. There may be room for debate, but that doesn't mean the Constitution was just bypassed in this case.

> Sure, but that doesn't make it so, unless you're one of those folks who holds that Constitutionality is based on the courts' opinion by definition.

That's been how it works in practice ever since Marbury v. Madison.

BTW, the fourth amendment contains the mother of all exceptions: "unreasonable searches and seizures"

I've stopped thinking about this in terms of mass surveillance, and re-arranged my perception, to align with a different world view. Namely:

  If we weren't surprised to learn that exploration 
  throughout history was all about conquest, power 
  projection, fortification and exploitation, and we 
  wouldn't be surprised to learn that in the future, 
  deep space exploration proved to hold similar outcomes,
  then why should we be surprised to learn that virtual
  spaces of imagined information across inert transmission
  mediums should experience these sorts of things.

  This is to say, the militarization of hypothetical realms,
  just like the oceans, and just like outer space, was 
  probably always inevitable.

So, with that in mind, that there are people arming themselves to the teeth and enforcing doctrines and demarcations, and patrolling every last iota of territory available to them, is a fact no less ugly than, say, aerial bombardment, but when mortal humans find themselves gifted with potent advantages over their peers, these things happen.

Now comes the time when new virtual territories will likely be carved out. Programming languages that don't use reserved keywords of English origins. Mathematical models for address spaces incompatible with TCP/IP of any version. Other, alternative internets that refuse to be compatible with The Internet as we know it.

The Internet being an American invention, has been dominated by America, and is very obviously patrolled broadly and deeply by American paramilitary entities, in much the same way that American nuclear powered vessels patrol the earth's oceans.

Given the capacity for computation that one can assume must exist, at this point, the only thing that would surprise me, would be if those that had conceived of an internet in general, hadn't actually hypothesized and accounted for this sort of fault and fracture in their models of social behavior and technological progress at the outset of all this, back in the early 1970's.

Part of me wonders if a Snowden-like figure wasn't part of the equation to begin with. Columbus, after all, didn't sail into the Atlantic expecting to fall off the edge of the world.

Interesting comment.

I was with you right up until the last paragraph. What do you mean by that?

For those who would argue, "It's just metadata, what's the problem?", remember that we're killing people with drones based on nothing but metadata.

Metadata, especially when collected and searched in bulk, is important.

It's crazy how schizophrenic the world is.

While the USA is stamping approval on it's abuses the EU is urging protection for Snowden.

Next whistleblower is doomed, the military will probably shoot down whatever airliner they take to escape and cover it up.

And given this, next whistleblower might give up before they even try saying "what's the point".

France has already made these data vacuums legal, similar in other EU nations.

http://thinkprogress.org/world/2015/07/26/3684525/french-pat...

Great, another loss for us right when we're poised for an even bigger loss via CISA.

I still think we can win, but it's going to take another Snowden from the blackmail agencies to do so.

It's clear from Snowden's stuff that NSA culture is highly military and hackish, in the LulzSec sense. Cases like this are just part of the shadow dance.

As if they would ever actually stop, based on the opinion of some civilian court.

So, laws have to be followed, but not by the very powerful...

From the comments:

"You usually do a good job covering this topic but this article is not up to your usual standard. You portray the court's opinion as tautological - "And now the courts essentially maintain that the original surveillance is legal because Congress says it's legal" - but this is a misleading and unfair caricature. The background of this case is that this 2nd Circuit panel said that bulk collection of metadata was illegal because Congress never authorized such a tactic under the Patriot Act. Note that the court said it was illegal because it was not statutorily authorized. It did not conclude the program violated a constitutional clause, right or principle. You conflate these two very different things when you write in your article:

Quote:

So how could something so seemingly unconstitutional continue? Congress said it could, that's how.

Statutorily unauthorized is not the same thing as unconstitutional - the panel never said in their original ruling that the bulk metadata collection was unconstitutional, only that it was unauthorized by the law the government cited for its legality.

Now, in this latest ruling, the 2nd Circuit panel is saying with the recent passage of the Freedom Act, Congress has provided the authorization that was missing under the Patriot Act for the bulk metadata collection. So yes, in a sense, the previously illegal bulk collection program is now legal because Congress says it's legal but that's not twisted logic - that's how laws work. Acts are legal or illegal because the legislative body says so. Previously, the court said the metadata program wasn't authorized by the law - now, the new revised law provides that authorization. There's nothing twisted about that legal reasoning.

To be clear, I oppose the metadata collection or the indiscriminate NSA surveillance. But I do not think this article fairly summarize the reasoning in the court's opinion."

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