NSA

Federal Court Rules Mass Metadata Collection Not Authorized by PATRIOT Act

Ruling sidesteps First and Fourth Amendment concerns.

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Just put it down and step away.

This morning an important—but limited—ruling from the Second Circuit Court of Appeals declared that the National Security Agency's (NSA) mass collection of all Americans' phone metadata was against the law.

The panel ruling in ACLU v. Clapper, written by Judge Gerard Lynch, bypasses the issue of whether the bulk collection was an unconstitutional violation of the Fourth Amendment (though the ruling does discuss these concerns at length). Rather, the court determined that the NSA and federal agencies are incorrect when they claim that section 215 of the PATRIOT Act authorized this sort of massive collection. Section 215 may authorize some very broad gathering of information, but it nevertheless requires that it be relevant to a specific investigation. Some choice paragraphs from the 97-page ruling:

The government takes the position that the metadata collected – a vast amount of which does not contain directly "relevant" information, as the government concedes – are nevertheless "relevant" because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of "relevance" is unprecedented and warranted. …

The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created. …

It permits demands for documents "relevant to an authorized investigation."  The government has not attempted to identify to what particular "authorized investigation" the bulk metadata of virtually all Americans' phone calls are relevant.

Before the ruling got to this point though, the judges had to establish that the plaintiffs in the case, represented by the American Civil Liberties Union, have standing to sue. The federal government had been trying to get the case tossed out, using the secrecy of the program to insist that plaintiffs couldn't prove their metadata had even been collected.

Time to thank Edward Snowden again. The court ruling references him by name as the reason we all know about the phone metadata collection. He is the reason the ACLU succeeded in the argument for standing.

The court also did not accept the argument that metadata, itself, does not provide deeply private information:

A call to a single-purpose telephone number such as a "hotline" might reveal that an individual is: a victim of domestic violence or rape; a veteran; suffering from an addiction of one type or another; contemplating suicide; or reporting a crime. Metadata can reveal civil, political, or religious affiliations; they can also reveal an individual's social status, or whether and when she is involved in intimate relationships.

The court acknowledged that it is bypassing the constitutional arguments. Toward the end it notes that section 215 is set to expire at the end of May, and it appears that the judges' intent is to allow Congress the opportunity to fix the law first before tackling that debate in full (there is a lengthy discussion of the history of the third-party doctrine, which has allowed the government to demand personal data that has been held by communications providers, nevertheless).

The full ruling can be read here (pdf). As Jacob Sullum (and this very court panel) has noted, now is the time Congress to formally end this practice.

UPDATE: The ACLU responds:

"This decision is a resounding victory for the rule of law," said ACLU Staff Attorney Alex Abdo, who argued the case before the three-judge panel in September. "For years, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly rejected the government's theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society."

UPDATE II: Rep Justin Amash (R-Mich.) weighs in, noting that the proposed USA Freedom Act would actually provide the authorizations the court says Section 215 does not:

From day one following the revelation of the NSA's bulk collection program, I have said that the warrantless collection of records on all Americans violates both the Fourth Amendment to the Constitution and the plain reading of Section 215 of the Patriot Act. Today's Second Circuit ruling makes clear that the executive branch's interpretation of the statute—interpreting records "relevant" to a terrorism investigation to mean all records everywhere—is "unprecedented and unwarranted." In light of this ruling, Congress must not proceed with the latest version of the USA Freedom Act. While limiting certain types of bulk collection, the latest USA Freedom Act would authorize bulk collection of Americans' records for the first time, thereby undoing some of the progress resulting from the Second Circuit's decision. Instead, Congress should pass, and the president should sign, the original USA Freedom Act, as introduced in 2013 before amendments, that protects the liberty and privacy of all Americans while providing the intelligence community the authority necessary to deal with those who seek to harm us.

UPDATE III: And here's Sen. Rand Paul (R-Ky.):

This is a monumental decision for all lovers of liberty. I commend the federal courts for upholding our Constitution and protecting our Fourth Amendment rights. While this is a step in the right direction, it is now up to the Supreme Court to strike down the NSA's illegal spying program. It is the duty of elected officials to protect the rights of all Americans, and Congress should immediately repeal the Patriot Act provisions and pass my Fourth Amendment Preservation and Protection Act. I will continue to fight to prevent the Washington Machine from illegally seizing any American's personal communication.

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62 responses to “Federal Court Rules Mass Metadata Collection Not Authorized by PATRIOT Act

  1. I know the premise of judicial restraint runs deep and that’s why we get these narrowly tailored rulings. But goddammit, just once I’d like a court to stop hiding behind the excuse of “the legislation doesn’t authorize this” but rather get to the root and say, “ummmm…no, nothing in this PRACTICE is remotely permissible under the Constitution.”

    1. You STUPID AMERICANS!! We in government wot acknowledge the constitution!

      In this ruling we threw you a bone to keep up the illusion of an impartial judiciary, which I’m sure will deceive the vast majority of you, while keeping the door wide open for us in government to adjust the law quickly enough to avoid any slowing of the continued rape of your privacy “rights!”

      Our judges serve government just like all other government employees and will do whatever government wants them to do. See here where one of our judges forced the nonconsentual sterilization of a young girl like a dog: http://youareproperty.blogspot…..r-our.html

      After that do you really think we’re worried about your constitution!!!!

      1. Collectively, we have devolved to the point that even if we heard those exact words from any gov’t agency, we’d think
        it only, as some kind of joke.

        They piss on us, and we’d rather believe them when they say; “It’s only raining”.

        I’m afraid we’re toooooo far gone. Cry for our children…

    2. Well said.

    3. I agree. All the court did was find that the secret FISA court wrongly interpreted ONE word in the NSA legislation: “related” to an investigation. That was sufficient to evade any serious discussion of the constitutional issues.
      This was another sad instance of the court bending over backwards in its “deference” to the will of Congress.

  2. This ruling will stop this practice how again?

    The system is broken man.

    1. The courts have no standing army. Everything depends on the executive branch following the rule of law. But do courts really need their own enforcement arm? Does Congress?

      1. Maybe the Secret Service and Capitol Police should answer directly to the Chief Justice….

      2. Exactly.

        How many divisions have this court ?

    2. 225 years of precedence and the public’s embrace of the same? Same thing that stops any other coup.

      1. So, basically your answer is “guns”…

    3. Right. Did anyone actually think it wasn’t against the law?
      The question is….who’s gonna stop them?
      That’s what I thought.

      1. I am Spartacus!

  3. I hear what you’re saying, Catatafish, BUT… Any ruling is better than no ruling. A narrow ruling is much less likely to be overturned than a sweeping ruling. Nothing about a narrow ruling precludes another court from making a more sweeping ruling.

    Ultimately, this will probably have to go to SCOTUS to get that Fourth Amendment ruling.

    1. Agreed. And I actually agree with the practice to a certain extent in the sense that it prevents 50 different rulings throughout the country and, ostensibly, provides for slower, more deliberate consideration. I just can’t help myself from having Con Law flashbacks and thinking, “isn’t this so blatantly unconstitutional that the sum total of the ‘legal analysis’ should: ‘duh’.”

      1. “isn’t this so blatantly unconstitutional that the sum total of the ‘legal analysis’ should: ‘duh’.”

        Like in “campaign finance reform” speech restrictions?

      2. I just can’t help myself from having Con Law flashbacks and thinking, “isn’t this so blatantly unconstitutional that the sum total of the ‘legal analysis’ should: ‘duh’.”

        It’s all constitutionally justifiable under the Interstate Commerce, General Welfare, or the Necessary and Proper clauses, or the Reasonable exception in the 4A

        1. None of you are helping with my stated flashback problem. 😉

    2. The ruling will be moot as soon as Congress changes a few words. SCOTUS will reject any appeal … if there is one!

  4. The government takes the position that the metadata collected ? a vast amount of which does not contain directly “relevant” information, as the government concedes ? are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant.

    The government takes the position that the people incarcerated ? a vast number of whom are not specifically “criminals”, as the government concedes ? are nevertheless “criminals” because they may allow the government, at some unknown time in the future, utilizing its ability to sift through the trove of people it has incarcerated up to that point, to identify people who are criminals.

    1. Oh, of course, the non-italicized sentence is satire. I have no idea what the government’s actual position is.

    2. “what is Minority Report?”
      I’ll take “things that the Gov does to bend you over for $800 Alex.”

  5. I’m gonna clean up Shackford’s UPDATE, written in the real world:

    UPDATE: The ACLU responds:

    “This decision is a resounding short-term victory for the rule of law,” said ACLU Staff Attorney Alex Abdo, who argued the case before the three-judge panel in September. “For years decades if not centuries, the government secretly spied on millions of innocent Americans based on a shockingly broad interpretation of its authority. The court rightly temporarily rejected the government’s theory that it may stockpile information on all of us in case that information proves useful in the future. Mass surveillance does not make us any safer, and it is fundamentally incompatible with the privacy necessary in a free society, however we will continue to walk in lockstep with the SPLC to ensure abortion protesters are not allowed to stand in public spaces that are close to abortion providers and we will continue to ignore the Second Amendment.”

    1. Oh shove off with that last bit, really. You’re acting like a divisive spook.

      Is the SPLC a bunch of disingenuous twats? Can the ACLU work with twats when they share a common goal? Can people work together to achieve things they agree on without a perfect harmony of ideals? Is it wise to assume any person or organization will or should hold your exact conception of morality? How does any of this take away from the ACLU’s small victory over the state’s mass surveillance?

      I have more questions I could ask and then coyly answer with the next question; don’t make me go full Napolitano…

      1. Then they should change their name to the American Fourth Amendment Union. Because they do a great job there but an absolute shit job everywhere else.

      2. Don’t EVER go full Judge N.a.p.
        We should all cherish him and answer his rhetorical questions.

      3. Sloopy has been here long enough to have proven his commitment to the cause. If he is a plant he’s certainly doing a good job of it. You, on the other hand are an anonymous n00b.

        And for the record I think that some here (incl Sloop) are overly critical of the ACLU given the good things they’ve done for the constitution. And it must be noted that those beefs with the ACLU are almost always over abortion and related issues. You take allies where you can find them even if those allies aren’t in perfect lockstep with you.

        1. My 1:10 was directed at bunghole.

          1. I wasn’t calling him a spook, just bringing to his attention that off topic axe-grinding and divisiveness, despite news that might bring people together, is a spook m.o.

            I share your sentiments and I understand why Sloopy commented like he did; I was just trying to rib him into future comment examination with the spook comparison. I agreed with everything Sloop had said until he went south into boldface land. The diversion at the end was just, well, sloopy thinking, natch. 😛

            Anyway, I was compelled to sign up when I read his comment. Lately I’ve been so annoyed by people I mostly agree with discrediting themselves, right after they make good points, by going into axe-grind or conspiracy land. I realize that what i’m saying now is axe-grindy; the irony is not lost on me. That’s why, I hope, the tone of my comments come across as light hearted and jocular.

            Granted, I’m new to the reason comments section so I don’t know the leeway the community gives, or Sloopy from Adam for that matter. So please accept a preemptive apology for possible misinterpretation.

            1. Now you’re comparing me to Adam Lanza? You motherfucker.

              Seriously though, I guess I’m pissed at the ACLU for grabbing the mantle of “civil liberties protector writ large” when they are very good in some areas (4A), bad in some areas (1A for the last two decades) and downright hostile in others (2A). And the reason I am is that a lot of uneducated people out there, and they are a large majority, think what defines “civil libertarian” is what the ACLU stand for. And their omission of large sections of what the 1A is meant to protect and their complete abandonment of the 2A mean I have to mock them roundly.

              Having said that, I’m glad my comment got you to sign up and comment. Stick around…and be sure to ditch the light-hearted and jocular commenting style. This place is a FUCKING JUNGLE.

            2. Welcome to the jungle. Don’t forget to sign up for orientation with Warty, and story time with Sugar Free.

              1. Don’t listen to Tonio! Sugar Free’s blog will haunt your fucking dreams.

            3. “Granted, I’m new to the reason comments section so I don’t know the leeway the community gives”

              Leeway ?

              You are new here.

  6. …but it nevertheless requires that it be relevant to a specific investigation.

    Uh, how about the specific investigation into a little case known as GLOBAL TERRORISM? (And also drug dealing.)

    1. Good observation(s).

      But what is “to insure domestic Tranquility”, chopped liver?

    2. There is no specific investigation into “Global Terrorism”. There are many disjointed investigation into regional terrorism.

      You’re statement supports the idea that someone may do something sometime so I’m going to investigate everyone util I find them. Very Mcarthy-istic.

      The law requires that to qualify as a specific investigation you have to name who you are investigating and what acts you are investigating them for.

      1. You need to put these in your sarcasmometer.

        ::hands batteries to Will::

  7. When you have to go beyond the PATRIOT ACT to carry out your surveillance schemes…you MAY be venturing into legally dubious territory.

  8. Google pay 97$ per hour my last pay check was $8500 working 1o hours a week online. My younger brother friend has been averaging 12k for months now and he works about 22 hours a week. I cant believe how easy it was once I tried it out.
    This is wha- I do…… ?????? http://www.netjob80.com

  9. “USA Freedom Act”

    Teh.

  10. My mom makes $70 every hour on the computer . She has been fired from work for 9 months but last month her pay was $18079 just working on the computer for a few hours.
    See here. ?? ????????? http://www.jobsfish.com

    1. That is what your mom tells you…I, and many others on here, are “clients” of your mom. She is very good at her job and only occasionally makes mistakes(example: adolphowisner was a mistake). The reason she keeps you fed with balogna sandwiches every day is that she takes cocks like a champ.
      Tell her I said thanks.

  11. “This decision is a resounding victory for the rule of law.”

    I would love to believe that…

    However, neither Obama nor Bush ever let the illegality of something stop them from doing whatever they wanted to do.

    A victory for the rule of law would involve someone being prosecuted for breaking the law. And Obama isn’t about to prosecute himself.

    At this very moment, all the same people are still collecting all the same data–they just lost one of their fig leafs to hide behind.

    It would have been worse if the ruling had gone the other way, but I wouldn’t call this a victory for the rule of law.

    1. This is absolutely a victory it’s just a limited one.

    2. Yeah, its not a victory of the rule of law until the government actually obeys the law. This is, at best, a premature ejaculation by the ACLU.

  12. Rep Justin Amash (R-Mich.) weighs in, noting that the proposed USA Freedom Act would actually provide the authorizations the court says Section 215 does not:

    This is the bill that Bailey chastised Rand for not supporting right?

  13. “This decision is a resounding victory for the rule of law,”
    .
    This is a monumental decision for all lovers of liberty.
    .
    the proposed USA Freedom Act would actually provide the authorizations the court says Section 215 does not
    .
    Somehow the resounding victory for the lovers of liberty smells just like a shitweasel. As Ken said, the same people are still collecting the same data in the same way so what difference, at this point, does it make?
    .
    Clapper, et al, made it very clear from the first all of this that what they were doing was God’s Work and questions about its legality or Constitutionality were just exasperatingly trivial distractions if not downright un-American godless terrorist-enabling heresies. They had absolutely no intention of backing down a single inch on what they were doing – and they still have no doubts whatsoever that they are by God going to protect us from ourselves even if they have to kill us to do it. These people are at war with America, the American people, the Constitution, the rule of law, and everything decent people find decent as far as I’m concerned. It’s long past time we fought back.

    1. I love how a bill that violates the 4th amendment and totally limits individual freedom is call The Freedom Act. Big Brother would be proud.

  14. The NSA: “LOL!”

  15. I hope this lends some street cred to Rand Paul’s campaign. He has probably been the most vocal politician about this issue for some time now.

  16. Bo is right!

    Why do all you white men have to name rape planets!!!

  17. Has the court done anything to enforce this ruling?
    1. Ordered the NSA to halt the collection of data?
    2. Ordered the NSA to destroy the data already collected?
    3. Prohibited the transfer of the data to any other entity.

  18. But an appeals court recently okayed LAPD’s mass automated license plate data collection and storage. We’ve got license plate readers on traffic signal poles.

  19. But, they didn’t rule that the PATRIOT ACT is authorized by the US Constitution.

  20. I heard that congress will be trying to include language that will permit this so it can pass SCOTUS muster. Yea, aren’t we glad now that small gov’t republicans took control of the congress.

  21. I don’t need the court to tell me the patriot act is un Constitutional and totalitarian.

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  23. Amazing, isn’t it, that there seems to be some example of government antics that isn’t made holy writ by The Patriot Act.

  24. Nathaniel . although Stephanie `s rep0rt is super… I just bought a top of the range Mercedes sincee geting a check for $4416 this last four weeks and would you believe, ten/k last-month . no-doubt about it, this really is the best-job I’ve ever done . I actually started seven months/ago and almost straight away started making a nice over $79.. p/h….. ?????? http://www.Jobs-Cash.com

  25. Nathaniel . although Stephanie `s rep0rt is super… I just bought a top of the range Mercedes sincee geting a check for $4416 this last four weeks and would you believe, ten/k last-month . no-doubt about it, this really is the best-job I’ve ever done . I actually started seven months/ago and almost straight away started making a nice over $79.. p/h….. ?????? http://www.Jobs-Cash.com

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