Judge rules for NSA in warrantless search case | Hacker News Reader

Judge rules for NSA in warrantless search case

reuters.com

121 pointssinak27 comments

Here is the actual ruling itself:

https://ia801403.us.archive.org/22/items/gov.uscourts.cand.2...

Excerpt:

> Disclosure of this classified information would risk informing adversaries of the specific nature and operational details of the Upstream collection process and the scope of the NSA’s participation in the program. Notwithstanding the unauthorized public disclosures made in the recent past and the Government’s subsequent releases of previously classified information about certain NSA intelligence gathering activities since 2013, the Court notes that substantial details about the challenged program remain classified. The question of whether Plaintiffs have standing and the substantive issue of whether there are Fourth Amendment violations cannot be litigated without impinging on that heightened security classification. Because a fair and full adjudication of the Government Defendants’ defenses would require harmful disclosures of national security information that is protected by the state secrets privilege, the Court must exclude such evidence from the case.

So the court isn't ruling on whether NSA surveillance is constitutional. They're saying NSA surveillance is too secret for them to be able to rule on, because state secrets privilege.

Right. You can't establish that you were harmed, but the easily obtainable evidence you should be able to present in discovery is classified. I know it exists, you know it exists, but State Secrets, so no.

The problem of course being the national security exception has been abused since its inception, and since its inception we've only seen an expansion on its use as well as an expansion on the rights abused with its use.

I understand the need for actual national security and not divulging details about certain actions but when half the time the exception is used to save face the court should consider stepping into the realm of reality rather than just trusting that the government isn't just trying to once again save face / hide the abuse of rights.

Absolutely comical. White argued the plaintiffs didn't have enough information about the program to sue. Ahhhh, the ol' you don't know enough about our highly and intentionally secret program to make a case against it...

I thought the constitution was suppose to trump other laws. Is this state secrets law a new amendment I missed?

Only the Supreme Court can effectively decide such a thing. While tragic in some ways, at the level of this judge he is to small potatoes to deal with a major constitutional issue. Of course I doubt the Supremes want to touch this either.

The next thing you know, we'll have a Secret Court. Oh, wait.

Actually the next thing is people like us getting rounded up ..

Firstly, https://eff.org/donate

Secondly, from the judgment[1]:

    Based on the public record, the Court finds that the Plaintiffs have failed
    to establish a sufficient factual basis to find they have standing to sue
    under the Fourth Amendment regarding the possible interception of their
    Internet communications.

Another day, another ruling that we can't prove we are spied on. Whenever you can get the authority to rule on the actual program's legality, it's ruled illegal[2].

Thirdly, from the judgment:

    Further, having reviewed the Government Defendants’ classified submissions,
    the Court finds that the Claim must be dismissed because even if Plaintiffs
    could establish standing, a potential Fourth Amendment Claim would have to
    be dismissed on the basis that any possible defenses would require
    disclosure of state secret information.

This is the surprising part. How in the hell can a federal law trump the Constitution? This part of the ruling sets the precedent that the Executive can violate the Constitutional rights of anyone, including other branches of government (including the Judiciary itself!), and get away with it if the program is a state secret, even if you have evidence of the violation. This is very clear and firm loss of power of the Judiciary and Legislative branches.

Why is the Judiciary rolling over like this? The rule of law is being systematically shut down all around them, and they are just sitting there making themselves obsolete. The reason we have three branches of government that are adversarial is so that when one starts to grab for power, the others shut it down. Unchallengable Constitutional violations is exactly the kind of power grab that the Judiciary is supposed to shut down.

Fourthly: https://eff.org/donate

EDIT: Okay, after having read the full judgment, the very strange thing about it is that the can't-sue-even-if-have-standing claim is almost entirely without references. The standing section has tons of references to prior case law. But the state secrets section has very few citations and and is quite a bit of "grave damage to national security" talk without citation.

---

[1]: https://ia801403.us.archive.org/22/items/gov.uscourts.cand.2...

[2]: http://www.nytimes.com/2015/02/07/world/europe/electronic-su...

For whatever my opinion is worth (guess what I'm not: an attorney), that final bit of absurdity was added on purpose so that the Supreme Court pretty much has to take this case.

It's a thing you see sometimes. A lower court can't really make the ruling it wants to make for a variety of reasons. But what it can do is poison the ruling in a way that forces an appellate court to make a decision.

Deliberately teeing up for the appellate court? From the judge's perspective, ruling against the government at this stage in the case is very dangerous - but making a ruling like this gets it off his plate and up the food chain (where it would go anyway). And in this way it gets up there quicker.

The judge may also have seen enough information to think that the NSA might have sufficient minimization procedures in place to make the outcome of a suit uncertain, but the details of minimization procedures would allow terrorists to tailor their behavior to avoid some of the surveillance.

What do you do if you're a judge in that situation?

If I were a judge, I hopefully would realize that this was about more than the specific implications of the present program. This is question of who can make claims to who. If the Executive can say to the Judiciary, "This will hurt people." I (as a judge) should have the power to say, "I don't trust you, so let's hear arguments from another point of view."

Trust is something a balanced and representative government should not rely on. The ruling in this case is an acquiescence of power from the Judiciary to the Executive.

I decided to stop donating to EFF and instead donate to the ACLU when the EFF decided its time was better spent on re-litigating apartheid[1].

[1] https://www.eff.org/deeplinks/2015/02/eff-files-amicus-brief...

> re-litigating apartheid

In case you missed it, the legal practices in the US depend on previous court cases.

> U.S. corporations should not enjoy immunity for their purposeful assistance, technological or otherwise, in gross human rights violations (https://www.eff.org/deeplinks/2015/02/eff-files-amicus-brief...)

A positive ruling on this case, which presents to the courts not only a racist and violent but also a clearly stigmatized political system, would affect greatly how courts would behave towards companies collaborating with similar governments in the present time.

Furthermore, are you kidding me? IBM should be absolved of responsibility for aiding and abating severe human rights violations? Stop giving money to ACLU too, then. https://www.aclu.org/blog/racial-justice-human-rights/mandel...

>In case you missed it, the legal practices in the US depend on previous court cases.

You could dial back the snark a little here.

>Furthermore, are you kidding me? IBM should be absolved of responsibility for aiding and abating severe human rights violations?

I never said that. What I am saying is that there are other groups that would be better suited to take up this cause. Technologically minded people tend to be crappy socially and ethically.

Agree with you here. Currently companies are selling technology with massive power for oppression to whoever has the cash. Creating a framework to hold them accountable is a win for freedom.

An amicus brief isn't a big deal...

We need a brave insider leak some private data obtained using one of NSA programs of _every single federal judge_. Something simple, like one full recording of a phone call/private email per judge/judges spouse.

Snowden showed that every analyst can just log in and get at this shit with no checks, no warrants, no supervision. Somehow people in power still think they are above the rest.

Maybe they are doing that now, just blackmailing the judges with it

Big surprise. The government rules in favor of the government. Separation of powers is a myth.

The government isn't a unified entity. It's worth watching what arms of the government and governmental elites cooperate with the totalitarian surveillance regime and what arms defect.

Are you kidding? Yes it's a unified entity. I will chop off a leg if a government 'arm' defects. Go back to sleep America, everything is under control.

So what arms are defecting?

I wonder how many secret meetings the judge had with the NSA to come up with this expected ruling.

This is just one of the biggest dangers of having an agency that spies on everyone with impunity. Limitless blackmail capability could make almost anyone conform to their will.

I think the NSA down voted me. And I totally agree with your statement.

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