NSA

Obama Administration Defends 'Almost-Orwellian' NSA in Federal Court

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In his December 2013 opinion in Klayman v. Obama, Judge Richard Leon of the U.S. District Court for the District of Columbia ruled that the "almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States" not only sounds like the stuff of dystopian science fiction, it "almost certainly does violate a reasonable expectation of privacy" under the Fourth Amendment. It was the first major legal defeat for the NSA.

Credit: White House / Flickr.com

That ruling is now on appeal before the U.S. Court of Appeals for the District of Columbia Circuit. On Monday the Obama administration filed its opening brief in the case. Unsurprisingly, that brief took issue with Judge Leon on every point. "In light of the imperative national-security interests the program serves and the numerous privacy protections that the Foreign Intelligence Surveillance Court has required the government to observe," the government maintained, "the program is reasonable under the Fourth Amendment."

The outcome of this dispute is likely to turn on the D.C. Circuit's interpretation of a 1979 Supreme Court decision known as Smith v. Maryland. In that case, the Supreme Court upheld the warrantless installation of a pen register on phone company property by Baltimore police for the purposes of tracking the phone calls made by a criminal suspect. According to the Court's ruling in Smith, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

The Obama administration believes that precedent offers more than sufficient justification for the NSA's Bulk Telephony Metadata Program. "Under Smith," the government argued in its brief, "no caller has a reasonable expectation of privacy in the telephone numbers he dials."

Moreover, the government added, this challenge to the NSA owes more to political paranoia than it does to any legitimate constitutional concerns. "Plaintiffs' asserted injuries are entirely attributable to their subjective, speculative fear that the government may, in some unspecified way, use any information the government possesses about them against them," the brief declared. But "such amorphous fears are not a basis for challenging a government intelligence-gathering program."

Judge Leon's 2013 decision, by contrast, argued that the NSA's controversial actions simply dwarf anything the courts have previously seen from law enforcement. "When do present-day circumstances—the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies—become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the government," Judge Leon declared, "is now."

The D.C. Circuit is expected to hear oral argument in Klayman v. Obama later this year.

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56 responses to “Obama Administration Defends 'Almost-Orwellian' NSA in Federal Court

  1. The late Justice Potter Stewart in his dissent.

    I think that the numbers dialed from a private telephone? like the conversations that occur during a call?are within the constitutional protection recognized in Katz.[1] It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy.[2] The information captured by such surveillance emanates from private conduct within a person’s home or office?locations that without question are entitled to Fourth and Fourteenth Amendment protection. Further, that information is an integral part of the telephonic communication that under Katz 748*748 is entitled to constitutional protection, whether or not it is captured by a trespass into such an area.

    The numbers dialed from a private telephone?although certainly more prosaic than the conversation itself?are not without “content.” Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.

    Smith needs to be overturned.

    1. So say we all!

    2. What we need is a new phone company that enters into a contract with you not to reveal the numbers you dial not the content of your calls. In that case you do have a reasonable expectation of privacy, in fact you would have specifically contracted for it. Now, we only need to find a sufficiently motivated, socially libertarian tech billionaire to provide the service – a service I am sure many would be willing to pay for.

  2. a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.

    no caller has a reasonable expectation of privacy in the telephone numbers he dials.

    Why don’t you just tell us when we DO have a reasonable expectation of privacy. Hand written notes, hand delivered to their recipients? Things whispered in our basements lined with a Faraday cage? Our own thoughts when we’re wearing our tinfoiliest hats?

    1. Exactly. If you say that privacy never extends to anything communicated to a third party, then privacy means the thoughts in our heads and nothing else. IT is absolutely absurd.

      The problem is what happens when that third party voluntarily gives the information to the cops? Then it is a tougher argument. How can my right to privacy against government intrusion prevent you from voluntarily choosing to reveal something I told you?

      1. As I understand by giving someone that information your giving them permission to do with it what they want, you open up a whole can of worms by going after people who reveal something that you told them, unless they violated a privacy clause in a contract that was agreed upon at the time of the exchange.

        1. Or the person has a professional duty of confidentiality like a therapist, priest or attorney.

          I think that phone companies are a bit of a special case. Just because they are serving as a medium for me to talk to you doesn’t in my opinion mean I am turning the information over to them in the same way I do when I give it to you. Technically, I am turning over the contents of my conversation over to them when I talk to you on the phone. The phone company’s equipment has to convert my voice to electrons and transmit them to your phone. I am giving them the information so they can transport it to you. How is my dialing your number any different?

          1. To be as insufferable as Nicole:
            The phone company does not turn your voice into electrons, your equipment does. be it your computer or your traditional handset. Even when it was a cord board and E&M it was still your equipment…EXECPTION: back in the day it was VERY common to actually lease your equipment, in that case yes, it was THEM.

            Principle of the matter is those electrons are mine (granted they are actually different electrons after propagation, generated by the phone company, but I own license over them and do not grant duplication beyond the means to achieve my communication).

            I suppose if we delve further into the quanta then the energy wave emanating through the air molecules is also mine but I have responsibility to keep it to a minimum necessary to facilitate my communication. My recipients responsibility should be implied as the same.

            Just sayin’

            1. The phone company most certainly is turning my voice into electrons. I am paying them to provide the equipment to do that. I don’t see nay conceptual difference between my dialing a number and my speaking into the phone. Both involve me giving information to an electronic device for the purpose of communicating with someone.

              1. Neither of which is occurring on a device they own or control. That was my stupid point. Unless you still live in the 60s and rent your phone from Western Electric of course.

                The ultimate answer from a consumer angle is to encrypt on their devices. Not the easiest thing to accomplish.

      2. There is a similar example in email services, in that an increasing number of our clients require that we do not enter their email addresses on any lists on threat of losing their business.

    2. That’s easy. A handwritten diary that never leaves your windowless basement. For now.

      1. “It was in plain sight – under three feet of concrete below a locked basement.”

      2. At first glance I thought that you had said “widowless.” I wasn’t sure what to make of that until I reread it.

    3. It’s quite simple–only communications conducted within the Cones of Silence are protected in fact and by law.

      1. In the Get Smart Cone of Silence or the Count Hasimir Fenring speaking to Baron Harkon Cone of Silence?

        1. Get Smart. In Dune it was the cone of silence. Also, I believed the one in Dune worked.

    4. Stop it, you hooligans! And stop asking why! National security! National security!

  3. “Plaintiffs’ asserted injuries are entirely attributable to their subjective, speculative fear that the government may, in some unspecified way, use any information the government possesses about them against them,” the brief declared. But “such amorphous fears are not a basis for challenging a government intelligence-gathering program.”

    That is a beauty there. We can spy on you and break the law and there is nothing you can do about it unless we use the information against you in some way. So according to the Obama DOJ, privacy only exists for the guilty. Innocent people have no right to privacy and no standing to object to the government violating their privacy.

    1. Everyone responsible for this at the top and mid-level bureaucrats should be jailed on principle. But since both parties have people responsible for the surveillance state neither will do anything.

      1. I agree. And Obama should be impeached for supporting it. Obama could revise EO 1222 tomorrow and end this program but chooses not to.

      2. Jailed? Hardly. Hanged from lamp posts with their own living intestines.

    2. You know, someone who makes a product that results in injury to a consumer is subject to strict liability in litigation. I suggest that a somewhat similar standard be imported into review of the constitutionality of government actions–no need to prove actual harm except in assessing dollar damages, automatic standing for anyone who can even hypothetically be harmed, and a presumption that officials performing unconstitutional acts did so knowingly. In the latter instance, that means they get to find new jobs unless they can prove their innocence. And no, that’s not a due process violation, because working for the government is a privilege not a right.

      1. The docrtine of standing needs to be tweaked. I understand the need for cases to be real cases or controversies and not sham suits. I wouldn’t get rid of it entirely. But I would alter it with regard to government. I would say any taxpayer has standing to sue the government to either enjoin the government from doing something illegal or compel the government to do something required by law and is entitled to attorney’s fees if they win. I would however, make them pay the government’s attorney’s fees if they lose. I don’t want the government bogged down by assholes who just want to sue. But I do want people to be able to use the courts as redress when the government they pay for isn’t abiding by the law.

        1. Yes, I’m all for standing in the greater world of litigation, but it’s totally self-serving and bizarre for the government to say that it can do illegal things without a citizen–any citizen–having standing. I’m not sure standing even has a place in the sense of opposing unconstitutional laws, though I suppose they could retain it for some purposes, like awarding damages in cases where that’s a possibility.

          1. It never has made any sense to me why any citizen doesn’t have standing to challenge the illegal actions of the government. It says right in the Constitution “we the people” formed the government. We are effectively stock holders. To say you or I have no standing to sue to stop the government from engaging in illegal acts unless we are directly harmed is like saying shareholders can’t sue to stop a corporation from doing something illegal unless they are somehow the direct victims of the fraud in some way beyond potentially losing their stock value. Having to pay taxes to a government that violates the law is just as harmful as seeing a company you own stock in do something self destructive.

        2. I would say any taxpayer has standing to sue the government

          Generalized grievance = no standing.

          government to either enjoin the government from doing something illegal or compel the government to do something required by law

          Doesn’t work. See: Sierra Club v. Morton. You can’t sue the government to compel it to enforce the law.

          I don’t want the government bogged down by assholes who just want to sue.

          See: Imbler v. Pachtman. The courts don’t care if you are just an asshole with a grudge or a legitimately wronged party. If you threaten to logjam the machine of government, the temple of justice is closed to you.

          But I do want people to be able to use the courts as redress when the government they pay for isn’t abiding by the law.

          How many times do you have to be told that the law is for peasants like you, not for TOP MEN, appointed by God to rule over you?

          1. It totally works. You just have to change the law. Congress controls what cases the Article III Courts can hear. If Congress passed a law saying Article III courts must hear lawsuits by any taxpayer asking to enjoin or compel the government into compliance with the law, the Courts would have to hear it.

            Judges like to pretend that standing is in the Constitution, but it is not. It is a judicially created doctrine and Congress has the power to change it if they wish.

          2. And I am familiar with those cases and the doctrine of standing. I just want Congress to overturn them.

            1. If Congress passed a law saying Article III courts must hear lawsuits by any taxpayer asking to enjoin or compel the government into compliance with the law, the Courts would have to hear it.

              Feel free to hold your breath waiting for this.

              Judges like to pretend that standing is in the Constitution, but it is not. It is a judicially created doctrine and Congress has the power to change it if they wish.

              It is in the Constitution, in that the Supreme Court can make rules for itself and inferior courts unless Congress tells them otherwise, which Congress has not seen fit to do. Standing is just a docket-control device to make sure the poor dears aren’t overworked and have plenty of time for their speaking engagements and vacations.

              And I am familiar with those cases and the doctrine of standing.

              You will see the Chief Justice hop up on the bench, hike up his robe and lay an egg before you ever see anyone in D.C. mount a significant challenge to the idea of standing.

              1. That doesn’t make it right AC. And that doesn’t mean Congress doesn’t ultimately have the power to tell the courts what they are supposed to hear.

          3. T: It minds not me that you dress like a mad parrot and talk like a plate of
            beans negotiating their way out of a cow’s digestive system. It is no
            skin off my rosy nose that there are bits of lemon peel floating down the
            Thames that would make better Regents than you.

            G: Well, bravo!

            T: The fact is, you *are* Regent…

            G: Yes, I am…

            T: …appointed by God, and I shall stick by you forever, though infirmity
            lay me waste and ill health curse my every waking moment.

          4. Yes, what John and I are talking about is what should be, not what the courts say. I’m well aware that they’ve dodged most attempts to rein in the government by invoking one bullshit reason or another, often based on standing arguments.

            If the government acts unconstitutionally, as far as stopping it goes, every single one of us should have standing. If that makes caseloads a headache for the courts, tough shit–stop letting the government violate the Constitution on a minute-by-minute basis.

  4. I knew I liked Judge Leon for a reason. Not just because of the harem of sexy law school students he seems to keep in rotation.

  5. The liberal Justices (Stewart, Brennan, Marshall) dissented from the majority decision in Smith v. Maryland. If this new case goes all the way to the Supremes, it will be very interesting to see how the liberal wing rules now that their Man is in power.

    1. If this new case goes all the way to the Supremes, it will be very interesting to see how the liberal wing rules now that their Man is in power.

      You say “interesting”, I say “predictably disappointing”.

    2. Its another example of the difference between liberal and progressive.

    3. While those justices had their share of bad decisions and poorly reasoned opinions, they also were cut from a different cloth entirely than the current bunch.

  6. “Plaintiffs’ asserted injuries are entirely attributable to their subjective, speculative fear that the government may, in some unspecified way, use any information the government possesses about them against them,” the brief declared. But “such amorphous fears are not a basis for challenging a government intelligence-gathering program.”

    That is some fucking scary shit right there. They are basically arguing that people shouldn’t be wary of government power until that power is actively being used against them. At which point, of course, it is already too late.

    Yet they’ll readily use “subjective, speculative fear” of basically anything connected to profit as an excuse to ban and regulate it to death.

    1. That is some fucking scary shit right there. They are basically arguing that people shouldn’t be wary of government power until that power is actively being used against them. At which point, of course, it is already too late.

      That’s exactly what they area saying.

    2. Yes. Only the guilty have privacy rights. If you are innocent and they never find any information to use against you, you have no standing to complain.

      1. Exactly: “secure in their persons, houses, papers, and effects”.

        1. Apparently to the Obama DOJ that means “secure against the government using anything they find against you in court”, if you are lucky.,

  7. “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    Once again I ask, does the third party have a right to privacy of that data, and aren’t they then subject to the warrant?

    1. Yeah, but you can always turn over information “voluntarily”.

      If there’s no expectation of privacy in the list of who you called, etc., then I expect that the judges will publish their call logs. From their office and their personal phones.

      Why not? Its not private, after all.

      This also runs against recent rulings that you don’t have to give up your phone password. There’s nothing (or, perhaps, very little) on your phone that isn’t on some other server somewhere. So none of its private, and you have no basis for requiring a warrant to search it.

      1. If there is no right to privacy for this information, then the government could require judges or any public employee publish every phone number they dial at home or at work as a condition to accepting the position. It would be perfectly legal to install a tap and trace on every judge’s cell phone and home phone and periodically publish all of the numbers dialed. If SCOTUS somehow lets this stand, it would be so great if they passed such a law an applied it to the Supremes.

  8. “Plaintiffs’ asserted injuries are entirely attributable to their subjective, speculative fear that the government may, in some unspecified way, use any information the government possesses about them against them,” the brief declared. But “such amorphous fears are not a basis for challenging a government intelligence-gathering program.”

    Let’s see ….

    “The government’s asserted injuries are entirely attributable to its subjective, speculative fear that critics of the government may, in some unspecified way, use any information they possess about the government against it. But such amorphous fears are not a basis for implementing a government intelligence-gathering program.”

    Nah. That’s entirely different. *Especially* since “Of the People”.

  9. Ask the Smith question the other way, what if the phone company started broadcasting the conversations? Since you communicated via their device (truly *their* equipment at that point – they OWNED it, you just rented it) you certainly had no expectation of privacy, so why could they not do what they wanted with the info, even without a warrant. I do not see the difference. There *is* an expectation of privacy of things said between two people, regardless of the medium. Polite people do not eavesdrop if the medium is just a few feet of air, and wise people lower their voices, but a phone is private almost by definition.

    Smith is wrong, and should be overturned.

    1. Government is not polite people.

    2. Polite people do not eavesdrop

      Angela? Angela *Merkel*?!

    3. Exactly. Paying the phone company to provide a medium for you and I to communicate is not the same as turning over the information we communicate to them. If it were, then we would have no expectation of privacy for the contents of our phone calls.

    4. Maybe a ballsy phone company should just make the list of every number that government officials dial public, to goad them into banning such a practice and creating a legal expectation of privacy regarding that information.

  10. What they’re not going to be able to do, in this networked age, is put a limiting principle on the third party doctrine.

    Right now, they are pretending that there is a difference between the meta-data of your phone calls and the content of your phone calls. But under the third party doctrine, there is none. Its all data that is, however temporarily, in the hands of a third party.

    What they’re also saying is that you lose any privacy in data that is ever handled by a third party. It really doesn’t make any difference if that data is still in the hands of the third party; the privacy interest is gone and they can get it from you without a warrant.

    There are no “administrative”/legal fixes for this. The only solution would be a technical one, most likely in the form of end-to-end encryption, and that only protects contents, not metadata.

  11. You just haven’t grasped the nuances of dialectical obozoism. Surveillance is privacy.

    1. That’s a common mistake. It’s actually “diuretical immaterialism.”

      1. Piss on it and find out.

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