Court Reverses Decision Against NSA Bulk Collection on Standing Issues

Doesn't rule on constitutionality of Patriot Act surveillance


"Man the search engines, full speed ahead!"

In 2013, noted conservative political troublemaker Larry Klayman of Judicial Watch filed suit against the National Security Agency (NSA) arguing that the mass metadata collection of Americans happening under the aegis of Section 215 of the Patriot Act was illegal. He won his case in the district court covering Washington, D.C.

Unfortunately, his victory was stripped away today when the Court of Appeals reversed the decision, on technical standing issues, and sent it back to the trial court. The issue at hand, as has always been a problem with these lawsuits, is proving that any one particular identifiable person has had his or her metadata collected under this program, something the Obama administration has managed to keep from verifying. Without proving that the government has collected your metadata, how can you sue the government to stop it?

That's what happened here. The judges did not rule wither or not the mass metadata collection was legal or constitutional. Rather, as one judge noted, "Plaintiffs lack direct evidence that records involving their calls have been collected."

Regardless, the days are numbered for this particular type of bulk surveillance. Congress allowed Section 215 of the Patriot Act to sunset and replaced it with the USA Freedom Act in June. The Freedom Act doesn't eliminate bulk metadata collection entirely, but requires more restrictive search terms and forbids grabbing all records from a phone or internet service provider. But the Freedom Act gave the NSA six months to keep collecting data under the old system, and despite Section 215 expiring, they've said they're going have their six months of mass surveillance during the transition.

Read more about today's decision, and the decision itself, here.

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  1. Without proving that the government has collected your metadata, how can you sue the government to stop it?

    Bull. They don’t need to find specific individuals in bullshit civil rights cases. Who was the specific victim in the recent HUD ruling the Supreme Court made in which they don’t need to find actual discrimination, but only disproportionate results?

    Everyone is having their meta data collected. Beyond that, internal government documents prove that these assholes are lying and have used this evidence in courts for non-terrorism related cases. If the courts refuse to strike this down, that is dereliction of their responsibilities.

    So one court keeps the documents needed to prove that individuals have been railroaded labeled confidential while another claims lack of standing because the plaintives can’t prove they were a specific victim.

  2. Plaintiff also forgot to fill out his 27b-6 form.

    1. In Canada, health record requests under the Gilliamesque “Freedom of Information and Protection of Privacy” cost a fair bit of money for information available to virtually any health worker involved in treatment. Information about suicidal behaviors, for instance, was shared with US border patrol and Canadians were being turned away. (“It’s not a gun problem, it’s a mental health problem…” I think you can see where this is going.)

      1. As bad as the NSA is, there are a number of less noted programs the American government has put in place under Obama that collected data even more egregiously. The CFPB that gets all your financial information but somehow isn’t beholden to Congress, or the mandatory electronic medical records. And all of that can be shared across government agencies.

        The only thing stopping any bureaucrat from knowing anything he wants about you is that they aren’t yet efficient at sharing information.

  3. This judge is, put simply, complicit. How is anyone to prove standing in court when merely possessing that info if it was available, which it isn’t, would land you in the clink?

    What a load of bullshit.

    1. Well, it’s technically a three judge panel here. So, the three of them are complicit.

      Out of curiosity, I looked them all up. Two Reagan nominees with one, David B. Sentelle, also having voted to overturn the convictions of Oliver North and John Poindexter. In another case, he upheld the suspension of habeas corpus for the terrorists. The third judge here was appointed by George W the Lesser.

  4. This is being done with Americans’ tax dollars in the name of America. Shouldn’t every American citizen have standing?

    1. No. That would open government up to all sorts of frivolous complaints from us plebs.

  5. You can’t sue without the evidence. The evidence is classified. Fytw

    1. ^^^^THIS^^^^

    2. fytw? Feed you to woodchipper?

      1. I like the way you think.

      2. Nice:)

      3. that’s what I thought he meant, but then I lack standing.

  6. It doesn’t really matter. They were going to continue the collection regardless of any court ruling.

    1. The initial judge didn’t order its suspension in the first place despite his ruling. But if the nazgul wanted, they actually could put a stop to this. Put the top members of the NSA’s bureaucracy in jail for contempt and see how fast those programs get shut down. Judges are not powerless. They’ve simply accepted a subordinate role to the legislatures under the guise of deference to democracy.

      1. It’s always a roll of the die with judges. Every now and then they recognize the evils of unrestrained government power and do something to retard it. But far more often, they view their legislative and executive counterparts like they view themselves: philosopher kings. Government officials can be trusted, they reason, because their job is to rule the hoi polloi and guide them to the light.

        1. Well, that’s another thing. Our Founders by and large believed government would keep itself in check across the branches because of competing ambitions. The idea of judicial deference to legislatures is antithetic to what they intended.

            1. I knew it! The Founders had a sad ’cause they weren’t invited to the cocktail parties!

        1. Well, technically, but the buzzword everyone loves is ‘democracy.’ Democracy as the be all end all developed throughout the 19th century and led to the codification of judicial deference.

  7. The issue at hand, as has always been a problem with these lawsuits, is proving that any one particular identifiable person has had his or her metadata collected under this program, something the Obama administration has managed to keep from verifying.

    Standing was meant to keep people from habitually filing lawsuits in which it was clear they were not damaged. It’s a form of judicial efficiency to keep frivolous lawsuits out and make way for meritorious ones.

    What the courts are doing now is an abuse of this procedural safeguard in an effort to shield the government from its own citizens.

    There is enough evidence, given the widespread media coverage, that it is reasonably likely members of Judicial Watch have had their own data collected by the government – moreover, it would be easy to find someone and sue on their behalf, if need be. There should at least be enough evidence to compel discovery which would pinpoint exactly who has had his or her data collected.

    1. “What the courts are doing now is an abuse of this procedural safeguard in an effort to shield the government from its owners citizens.”

      1. its owners


    2. Wonder if we could pass a law that if a case makes it to the supreme court and they reject it based on standing they are required to identify a specific person in their ruling that would have standing. Think it would do any good?

      1. I’m not even certain what the point of standing is anymore since we have both summary judgment, judgment on the pleadings, Rule 11, etc. which essentially do the same thing.

  8. People don’t care if the government is engaged in the surveillance of their electronic communication. The blanket NSA spying on the American people is here to stay.

    1. Nope. They only care as much as it is or was a partisan issue. The left was up in arms when Bush did it, but then mostly resigned themselves to accepting it when it was clear Obama escalated and expanded. Republicans mostly put up only lukewarm resistance because the hypocrisy was so readily apparent.

      And the judges have shown they will do nothing about any of this.

      Even if people cared, I’m not convinced much would change. But people don’t.

  9. The state will do as it likes; justification will be made, if/when necessary. To believe it can ever be constrained is no different than believing gun control can work.

    1. Not strictly analagous. The one way mirror of the NSA is more like confiscating firearms from gun owners and handing them out at institutions for the criminally insane.

      1. Fair enough, I guess I should have written “no less empty-headed than”.

  10. As long as people accept blanket surveillance and data sharing among private companies, they won’t object to the government sharing in that information. After all, if you permit something done for profit, you’d have to be downright unpatriotic to object to it when it protects us from TERRROORRISTS.

  11. *Francisco sees red*

    This is the definition of tyranny. Government blatantly exceeding its mandate and the watchers looking the other way.

    The only question is…how much will we take? All I can say is it’s a good thing the government is dealing with sheep rather than men like the Founders who, as I recall, got a mite uppity over some stamps.

    1. We may see a change if one of the judges finds that government was spying on him or her.

      1. or some Senator

      2. Well, if the NSA spies on most of these judges or politicians, I’d imagine they’d find enough dirt to get them to do whatever the hell they wanted. And who really is to say that hasn’t happened?

        Our government has done these sorts of things before, but to even suggest it relegates you to the realm of tinfoil hat wearing conspiracy nuts. Because the people who did it then are replaced with new names, I’m to believe they won’t use even greater tools to do the same things.

    2. dealing with sheep

      The most cowardly sheep on the whole planet. Hey, is the new I-phone out yet?

  12. What an infuriating ruling/decision. And what a load of BS. Makes me think back to another thread where shitty judges and certain types of work equipment were discussed…..

    1. Please report to the Southern District of New York for processing.

      /something something interstate commerce something something interstate e-transmissions

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  14. “[The] conservative keeps repeating the litany that the central government should be severely limited by a constitution. Yet, at the same time that he rails against the corruption of the original Constitution and the widening of federal power since 1789, the conservative fails to draw the proper lesson from that degeneration. The idea of a strictly limited constitutional State was a noble experiment that failed, even under the most favorable and propitious circumstances. If it failed then, why should a similar experiment fare any better now?” – Rothbard

    1. I will say this in defense of the Constitution: where would the world have been without it?

    2. Everything would seem to work wonderfully, with one single change: that the people were only willing to pay “taxes” (quotes, because I don’t know what you’d call them in this case, and I don’t necessarily mean taxes in the conventional sense, but rather the more general concept of funding the state — and I’m not sure you’d call it the state, either, as there would likely develop multiple corresponding entities) on a strictly voluntary basis. But of course, just as with the socialist (or any other) new man, this solution depends on people being changed, not the state.

    3. The idea of a strictly limited constitutional State was a noble experiment that failed, even under the most favorable and propitious circumstances. If it failed then, why should a similar experiment fare any better now?” – Rothbard

      The problem is, that the system is without teeth. There needs to be a mechanism to punish violators. And I mean punishment as in something between jail time and drawn and quartered in the public square. And the judge/jurors need to be the people, not government.

      Perhaps something along these lines:

      Since the government favors “democracy” over a republic so much, how bout we turn it against them. If 50% of the state legislatures agree that a politician has acted in violation of the constitution, it is put to a national vote. If 50.00000001% of the people agree, that politician is locked up immediately, all assets seized without possibility of release.

      That might keep their heads down.

  15. ANother self-licking ice cream cone.

    (a) Plaintiff must prove the NSA has their data.

    (b) Plaintiff can’t prove this unless the NSA admits it has their data.

    (c) Even if plaintiff manages to get a discovery order, the NSA says it can’t respond because national security.

    Bottom line: the NSA is insulated from any kind of judicial review unless it consents to it.

  16. This is the type of case where the government should be required to prove they are not doing what they are accused of, and failing that, be found guilty.

  17. That “standing” business again. What unadulterated bullshit. When are the courts going to “straighten out and fly right”, forgetting about the legal dodge that is “standing”.

  18. Why is it that this is sounding more like “1984”?! Screwball legal eagles!

  19. So, I guess the NSA can kill folk if they like, as long as no-one comes up and says who they actually killed.

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