The most Kafkaesque paragraph from today’s NSA ruling | Hacker News Reader

The most Kafkaesque paragraph from today’s NSA ruling

washingtonpost.com

239 pointsrunn1ng61 comments

This is taken wildly out of context. The sentence right after the quoted text is just wrong. The quote is in response to a statutory argument. Statutory arguments are evaluated by reference to the text of the statute and Congress's intent in drafting the statute. The court is not saying that the ACLU has no claim because Congress did not intend the targets to find out, but rather that Section 215 doesn't create that claim because it would be inconsistent for Congress to intend to create such a claim when Congress did not intend for targets to find out. The court is rejecting one possible basis for the ACLU's claim, which is that Congress intended to create an avenue recourse in the statute. Its not a general point applicable to other possible bases for the ACLU's claim. In particular, the court is not saying that the ACLU cannot mount a Constitutional challenge for that reason, which is what the article implies. That would be Kafkaesque, but that's not at all what the opinion says. The Constitutional basis is separate from the statutory one, and does not depend on Congress's intent.

It helps to think about this analogously to other kinds of suits. Say you feel like a school district is discriminating against African Americans. There's a constitutional dimension to that case, but also a statutory dimension. Congress has created legislation that people can rely on to address such discrimination. To defend a suit under such a statute, a state might argue that a particular suit does not fall within the scope of the statute: that Congress did not intend for the statute to serve as recourse in this situation. But that sill leaves the broader Constitutional issue on the table. Whether Congress intended for a statute to serve as recourse is irrelevant to the Constitutional argument. There are two separate bases.

Which are the laws for which Congress must explicitly create an avenue for recourse?

In general, a suit must be based on either a cause of action at common law (tort, contract, etc), a state or federal law, or in limited circumstances directly under the Constitution. Federal statutes must demonstrate some Congressional intent to create an avenue of recourse. In fact, Congress can make something illegal, yet not create a cause of action. For example, with the securities laws, there have been many disputed related to when Congress intended to create avenues of recourse for private parties and when Congress only intended the government to be able to enforce violations.

So which is it: Warrantless search has no recourse unless the law says so, or is the judge buying in to the idea that section 215 data collection isn't "search?"

Neither is true. The mistake you're making is treating the ACLU's challenge as a single abstract thing. Instead, its a set of distinct, self-contained, claims argued in the alternate. And the court is obliged to address the distinct arguments on their own merits. Its a more systematic process than "is this good or bad?"

One claim is that Section 215 creates an avenue for targets to challenge days collection. The court rejects the idea that Congress intended to create an avenue in the statute for targets to challenge data collection, when Congress didn't intend targets to even know. That's the statutory argument. The court rejected the Constitional argument on a separate basis. They applied Smith v. Maryland, which approved warrantless collection of phone metadata in individual cases, and concluded it didn't become unconstitutional just because the NSA did it to a whole bunch of cases. This is a straightforward application of the third party doctrine. The fact that Congress didn't want targets to know had nothing to do with this part. It was rather based on how the boundaries of the 4th amendment have been interpreted.

Don't talk down to me. I pointed out two absurdities in this case: That secrecy is a magic spell that make due process go away and that it isn't a search if it's only machines looking at data. The judge has apparently gone for a third absurdity: Pen registers for all! This now supposedly is no different from from an investigation requesting a pen register on an individual as part of a specific investigation, never mind the dubiousness of warrant-less pen register requests in the first place.

I'm not talking down to you, I'm trying to get you to understand the opinion. The whole point of the legal analytical process is to cabin what would otherwise be total judicial discretion. It limits the analytical process by which judges can reach a conclusion. You can't understand opinions without keeping track of the context which limits the scope of every statement. Its like lexical scoping of variables in a program. When you take one paragraph addressing statutory standing and pretend that it says "secrecy is magic that makes due process go away" its like trying to understand a statement in a program while ignoring the lexical environment at that program point.

Judges aren't empowered to simply say "NSA is bad, ACLU wins!" In this case you wouldn't even like that, because the judge is clearly very sympathetic to the anti-terrorism backdrop of the whole case. You might think that warrantless pen registers are an "absurdity" but the judge isn't entitled to draw that conclusion. He is required to accept the premise of Smith v. Maryland, that collecting pen register data doesn't require a warrant because its third party information in the hands of the telephone company.

Precedent changes (with respect to Smith vs. Maryland). This judge's bias is evident from the first sentence of his ruling when he invokes the memory of 9/11.

The problem is that to the lay-person, this reads like, "well, you weren't really supposed to know about it, so you can't do anything about it." Whether or not the ruling is legally sound is basically irrelevant now. It is a PR problem and no amount of "trust me, I am a lawyer" is going to convince people who know how to read that this ruling does not sound like total garbage.

> The problem is that to the lay-person, this reads like, "well, you weren't really supposed to know about it, so you can't do anything about it."

That's exactly what it says.

> Whether or not the ruling is legally sound is basically irrelevant now.

Its relevant in understanding where the problem lies on the particular issue of the statutory claim being made by the ACLU (i.e., not with the court here, but with the Congress that wrote the law specifically to exclude this type of claim, and even more broadly with the entire principle of sovereign immunity and the way it stands in direct opposition to the idea of limited government, since a government that is only as accountable as it chooses to allow itself to be is not in any meaningful sense limited.)

> It is a PR problem and no amount of "trust me, I am a lawyer" is going to convince people who know how to read that this ruling does not sound like total garbage.

The ruling sounds like total garbage because it is legally sound and the law underlying it is garbage.

Do you not understand how far he stretched pen registers? Don't pretend to explain anything. You are merely excusing.

My wife's take: "Not just a misrepresentation of the opinion, but a misrepresentation of Kafka (which I've read in the original German). Kafka's bureaucracy was absurd. The implication the WaPo author intended was more akin to the self-serving, ostensibly just but not actually, circular laws of Heller's Catch-22."

Yesterday in a talk at 30C3, a historian discussed article 10 of the German 'Grundgesetz' (our constitution) whose logic is similar and which reads as follows:

> (1) The privacy of correspondence, posts and telecommunications shall be inviolable.

> (2) Restrictions may be ordered only pursuant to a law. If the restriction serves to protect the free democratic basic order or the existence or security of the Federation or of a Land, the law may provide that the person affected shall not be informed of the restriction and that recourse to the courts shall be replaced by a review of the case by agencies and auxiliary agencies appointed by the legislature.[1]

The logic sounds alike to me: Victims cannot know that they are being surveilled, and should they, under some circumstances obtain knowledge of the fact, take any real legal recourse against it. Fun fact: That article was imposed by the US.[2]

[1] http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.ht...

[2] http://de.wikipedia.org/wiki/Deutsche_Notstandsgesetze (sorry, the English article doesn't cite any sources)

If I understand this correctly, it is the simultaneously the most absurd and scary thing I have read in a very long time. So now crimes committed by the government cannot be challenged because the government never intended anyone to find out about it - thats a horrid peace of law.

> thats a horrid peace of law

It isn't law. It's one judge's tortured (Nah. Blackmailed?) logic. He isn't reading the law. He is stuffing caulk into a big crack, and inferring that the flaw should never have been there.

The logical consequence of this is that all the cases from targets that can infer they are targets based on the Snowden documents will have to result in courts that simply ignore the crime. That goes way beyond Gonzaga.

I would love to see someone take the speculation of blackmail further. It's obviously speculation and not fact, but it's reasonable speculation that is entirely possible and no longer in the realm of tin-foil hattery and that's why it matters. We no longer required a tortured conspiracy theory to consider blackmail a likely explanation of why this horrific judgement was made, and that's frightening in and of itself.

How do we know this judge hasn't been blackmailed, by the way? The honest protestations of a security agency that genuinely believes the ends justify the means?

The public statements of the NSA imply that there's no choice in this matter -- that this kind of surveillance is mandatory.

What hasn't happened is an honest debate about whether the public is willing to trade away whatever remains of their privacy for a fractional increase in "security". I think the public ought to at least have the opportunity to make a voting statement on that matter.

Secret privacy invasion programs make the debate impossible, until they're not secret.

What's happened is that the NSA has made the decision for us.

No you're not reading it correctly. The question is: what is the basis for the challenge? The quote in the article is in response to an argument that there was a statutory basis for the challenge. It says that its inconsistent to find that the statute creates a basis for the challenge in this case. It does not say the conduct cannot be challenged on another basis.

"But marge, I swear I thought you'd never find out"

That's a Simpsons quote. That it's relevant in this discussion is cause for dismay.

Read Brandeis decisions, think about how much sense they make and then realize he was usually in the minority.

"Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying."

No.

Pauley is saying that the targets of the order have no recourse to challenge it. That Congress never intended for them to know about it may be true, but it's otherwise neither here nor there.

Not quite. The court is saying that the statute does not itself create that avenue of recourse.

Except that one of the arguments, if not chiefly, should be that the actual actions (collection, spying, what have you) were unconstitutional - not that any legislative or executive action were passed which Congress has not authorized recourse to. It's as simple as that - fight the behavior directly as it violates privacy rights, regardless of what Congress or the Executive has done.

It's true that Congress holds two very powerful jurisdiction stripping abilities but the ability to interpret the Constitution will never be subject to that. Interestingly, the Supreme Court may be stripped of that ability but a State or inferior Federal Court should always be able to hear such a case if there is standing otherwise.

(Starting with "Except..." sounds wrong b/c you ^ are correct in regards to statutory recourse, it just shouldn't have been dismissed based on other grounds available which you actually explained pretty well below)

Well, the problem -- though not necessarily the specific problem here -- is that "the government did something unconstitutional" is not enough to make a lawsuit. The deeper issue is whether someone has "standing" to sue, and federal courts (and especially the Supreme Court) have a history of using that to sweep inconvenient issues under the rug when they don't want to make a decision.

For example, a standing-based argument against an NSA surveillance lawsuit might admit that, if someone were able to sue, they would certainly prevail on constitutional grounds, but then dismiss the suit anyway because the person suing can't demonstrate they've been harmed by the government action. If the only way you can find out that the action took place is through an illegal disclosure of classified information, for example, it may be there's no evidence you can legally present in court to show you were harmed (this is a variant of the "you weren't supposed to know you were targeted" argument).

And that's without getting into the thicket of sovereign immunity (which is not the state-secrets doctrine, but rather the idea that you can't actually sue the government directly unless the government lets you; instead you have to find some specific government official who you can argue exceeded constitutional authority. Good luck doing that when everything that's happened is classified).

Standing is not a legal barrier, it's a functional (unilaterally created) one. It's main purpose being to prevent taxpayer suits and therefore a level of suits that might be unmaintainable by the justice system (weak). So I may be mistaken but I don't believe though that the rules of evidence apply so that standing could be denied on the grounds as you hypothesized them. The question is whether the matter should even be heard as a "case" so I would think it would be odd to conduct it as if it were a case when making that determination.

The standing doctrines are legal barriers and serve important purposes. Statutory standing ensures that when people sue under a statute, as one of the ACLU's claims purports to do, that the statute was actually intended to allow that sort of suit by that sort of plaintiff. Standing also ensures that the proper parties bring suit rather than people with a tenuous interest in the case. Finally, standing had an important Constitutional dimension, partly jurisdictional. Article III courts are only empowered to hear concrete cases or controversies. This ensures that courts actually resolve individual legal disputes, rather than infringing on the territory of the elected branched and getting into political disputes.

This has nothing to do with jurisdiction stripping or the primary constitutional argument. Its about the secondary statutory argument.

That's not crazy. When faced with a law, terrible or otherwise, judges have two main choices:

1. Rule that the law should be followed. 2. Rule that the law is unconstitutional.

The article provides strong reasons for believing the law is terrible, but that doesn't mean the judge is wrong on any grounds except constitutional ones.

I agree, if I'm reading this correctly.

From the article: "Pauley is essentially saying that the targets of the order have no recourse to challenge the collection of their personal data because Congress never intended for targets to ever know that they were subject to this sort of spying."

I don't think that's true...I think the judge is saying that the targets of the order have no recourse to challenge the collection of their personal data because there's nothing to challenge (it's legal), regardless of whether or not Congress intended for the targets to know about it.

Am I misreading it?

I read it differently. I read:

Targets of the order have no recourse to challenge the collection because they don't have legally acceptable evidence that the collection exists.

Altough, the fact that the evicende osn't acceptable isn't in your quote.

3. Rule that the plaintiff lacks standing to sue because the only evidence that the plaintiff has that they have been a target of this law is a result of whistleblowing, and if the evidence of a whistleblower, although both true and confirmed by the defendant, is accepted, this would encourage more whistleblowing, which is the worst possible outcome imaginable. Instead, the only parties who have standing are the ones who had been directly and secretly served with the order (to monitor all of the plaintiff's communications), and those parties only have standing to secretly challenge the order in a secret court.

You could rule that, too.

Well, standing is usually a matter of law. But yes, I was oversimplifying, and anyhow IANAL.

My point was that your oversimplification was deceptive. You state that the judge only has two choices, and it's a matter of record that the actual judge in question chose neither of them.

>Well, standing is usually a matter of law.

The constitutionality of the concept of standing was not in question.

4. That a law can have an exception. For example, a friend has no front license plate on his sports car. But because a previous magistrate ruled that it was fine, all future fix-it tickets are automatically thrown out on grounds of precedent. (IANAL.)

Traffic magistrates don't usually have the power to establish precedent.

So I just asked: the first time it was an actual judge.

A hypothetical:

"The principal called. He said that you cheated on your exams."

"Yeah, but I never meant for anyone to find out, so why am I in trouble?"

Seems legit to me!

It's more like " The principal says you confessed and agreed to serve detention, because your friend told him you said you'd serve detention if you had to."

The specific statute does not provide victims an avenue of relief, so the victims cannot seek relief from the courts under that statute.

The real problem is either (a) the law is unconstitutional, or (b) the Cnstitution is not strong (well-written) enough to give justice in cases where the government is concealing its actions.

It's not a crime unless you get caught! .... Or apparently if you didn't intend to get caught.

I don't think any of this really matters. If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds. The Us government answers to no one, and that includes the Supreme Court.

>If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds.

not really, the supreme court has no way to enforce its decisions so the other branches can completely ignore its rulings if they wish.

see: brown v. board of education, some districts completely ignored the rulings and didn't desegregate until 15 years later.

If the Supreme Court decided tomorrow that anything the NSA does is unconstitutional then the laws would either be rewritten immediately or the government would challenge the ruling and force the justices to change their minds.

"John Marshall has made his decision; now let him enforce it!"

(this is not a new problem)

I wonder what kind of dirt the executive branch has on the judicial branch..

I'm so sick of this claim. The NSA fucked up based on what we know, there's no need to wildly speculate that actual blackmail is occurring too.

It's just plain unnecessary.

I think it's absolutely worth considering what power the NSA has that could be abused. Considering what we now know to be true that none of us suspected a few months ago, I think it's more irresponsible to unilaterally shut down speculation of this kind than it is to indulge in it.

Absolutely.

But that's a completely different thing than what happened here, in this specific case.

Please tell us in which cases NSA exercised restraint when it could, instead, take every opportunity?

No, its reasonably implied.

If the NSA has the information its claimed to have, then its reasonable to suggest that anyone in power has every little thing they ever did wrong in the past in the back of their minds, knowing the NSA might know about it. Recent revelations can only make that feeling stronger. So, while it is unlikely that every judge, politician, whatever, has been literally visited by a NSA goon, it is quite reasonable to suggest that such people rationally decide not to oppose the NSA, and act accordingly.

That is the whole reason why industrialised, comprehensive data slurping is a direct threat to any notion of freedom.

You can't get this for free, given how big of a deal it is.

You have to prove it's happening or stop saying it all-together. It's just that big of a deal.

It's happening. You think they developed scruples after LOVEINT or whatever it was they called it? Have people forgotten Hoover in your country?

It is guaranteed. There's no way it's not happening. Maybe not everyone, but many people in the US Gov't have dirty laundry. And some of that laundry has been discovered. And some of what's been discovered has been used for blackmail.

I've never been more confident of any opinion I've ever held.

If you've ever wondered what religious people feel like in relation to God's existence, you now understand.

The NSA fucked up based on what we know, there's no need to wildly speculate that actual blackmail is occurring too.

Blackmail is one of the more benign outcomes of the surveillance apparatus that's been put in place. Are you perchance familiar with the career of one J. Edgar Hoover?

Well, even if there was blackmail, there is no reason to assume it involved entire branches of your governement.

What do you think the NSA collects every kind of dirt from everybody in the US for?

You don't need any dirt. There are enough people that think honest people don't need to fear surveillance, and even more people thinking there's nothing wrong with losing a little privacy and a little dignity if somebody says it is because of terrorists and person saying it wears some kind of uniform. That's why TSA agents are universally tolerated. That's why nobody in Congress with powers to look into everything NSA is doing was actually interested in raising any objections about what is going on before Snowden. People value freedom much less than one'd hope, especially when they're properly scared by somebody in uniform.

I should point out that the person who argued for the petitioner - Doe - in Gonzaga v Doe, was John Roberts - this may not go the obvious way if it reaches the supreme court.

Imagine that the KGB informs Putin that Edward Snowden is holed up in Moscow airport. What would Putin ask.

Probably, "What information does he have that we could use?".

What would you as a KGB leader say to Putin. Probably "Well he stole a huge amount of sensitive information from the NSA but he apparently hid it all on the Internet and gave copies to several other people. But he doesn't have it with him."

And then what would Putin say? Perhaps "If he has already passed on this information, then could he do anything else other than what he has already done?"

I suppose the KGB leader would say "No, other than to hide away so that they can't hold a big show trial hoping to cover up the real story."

"Good says Putin. We will give him refugee status if he promises not to do anything else to further harm the USA. After all, it will take time for all the information to filter out to the media. We will hide him so that the media has to focus on the facts.

And then Putin adds, "Do you think he discovered anything that we don't know already?"

And the KGB leader replies "We have known of this lax security for years. Our team of sleeper agents set up many channels of information for us years ago, so we think this only means that the world will learn what we already know."

Except the KGB hasn't existed since 1991. It's the Federal Security Service.

Wait, what? There's no way that's a valid legal argument. That's insane.

We should be reminded that neither Kafka nor Orwell should be regarded as designs for law. The more time goes by the more we seem to live in their world.

Well, in a way this is a similar kind of right as the people have to not be prosecuted after an un-warranted search.

Can we get a warrant to search every portion of the government for illegal activity? We just have to find some sort of suspicion that they might be doing this...

The ruling seems to have put the kibosh on legal redress. Now the question becomes of what to do next. So how does one neutralize something like an NSA? Where are their pressure points?

If I understand this correctly, is it really that worrying an argument? One can't use covert telephone recording (i.e., without two-party consent) as evidence in most states, and it's important that the person being recorded didn't intend for the conversation to be recorded and available in the future as evidence. Similarly, one would expect leaks to not hold up as evidence.

Much as I also dislike the ruling, the argument here seems quite reasonable to me.

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