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View Diary: ACLU sues White House over 'dragnet' data collection (113 comments)

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  •  That their records were swept up (14+ / 0-)

    indiscriminately should suffice as harm. They could probably also get some clients to testify to that.

    Because of the way metadata works, connection building on connection tying individuals or organizations together, anyone who has been in contact, over the phone, with the ACLU could testify to harm.

    "The NSA’s capability at any time could be turned around on the American people, and no American would have any privacy left, such is the capability to monitor everything. [...] There would be no place to hide."--Frank Church

    by Joan McCarter on Tue Jun 11, 2013 at 02:19:34 PM PDT

    [ Parent ]

    •  It is harmful in my book and yours. (3+ / 0-)
      Recommended by:
      Rimjob, Boris49, Anne Elk

      That does not mean that 5 members of SCOTUS will buy it. You are essentially talking about the potential for financial harm rather than proof that it has occurred because of a specific government action. SCOTUS could have taken the Human Rights Watch case if they had wanted to. Standing and political questions are among their favorite fudge factors.  

    •  but they don't allege (4+ / 0-)

      this has made it harder for the ACLU to do its job in any way other than in generalities, and an argument that collection of metadata itself violates the 4th amendment has already been rejected.  There are no adverse consequences, on the face of the complaint. The legal theory is either speculative, or unlikely.  The very secrecy of the program refutes that theory, unless you see the data collection as harm itself, but it's unclear why the Supreme Court would agree.  I don't think it's in the ACLU's interest to invite this court to rule on the issue, either, as that could easily backfire if it ever gets that far.  

      I'm also not sure the district court would necessarily have jurisdiction.  How can it sit in judgment of the FISA court?

      I'd lastly see this as a political question.  If the debate is over the interpretation of "reasonable," in this context, is this the court to rule?  It's troubling from the ACLU's perspective that it spends so much energy in the pleading establishing that the metadata program is at least superficially an application of statute.  Unless it's prepared to argue that there are no circumstances in which the data collected as described is reasonable, I don't have confidence in the suit.

      The point of standing doctrines are to keep courts from ruling based on policy objections unless absolutely necessary to protect rights.  In the great civil rights cases, the standing doctrine wasn't an obstacle.  Roberts limits it too much.  And while it's suggested the ACLU's communications will get flagged because it does represent dissidents and such, that's not the theory of harm, because they know and we know to get up on the ACLU's phones, there'd still be the warrant requirement.  They're not materially different from anybody in the country for purposes of what they allege as the wrongdoing, so any harm isn't particularized.  Often, privacy laws are a prophylactic (see, Griswold v. CT) to protect against arbitrary enforcement.  This isn't that, by the ACLU's own pleading.

      I bet the ACLU doesn't expect the suit to succeed, and that's the point of bringing it.  if that's so, it's what standing is supposed to prevent.

      Difficult, difficult, lemon difficult.

      by Loge on Tue Jun 11, 2013 at 02:41:21 PM PDT

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      •  Support for this statement? (5+ / 0-)
        an argument that collection of metadata itself violates the 4th amendment has already been rejected
        Before you say Smith v. Maryland, realize that the Court only found that there was no 4th Amendment expectation of privacy where:

        1) There was no actual interception of the content of the communications - only the phone number data (note that in regards to this PRISM program, it has been alleged that the NSA is, in fact, acquiring the contents of e-mails and texts.  Therefore, Smith v. Maryland is already distinguishable as to those e-mails and texts); AND

        2) The  information (phone numbers) provided by the telephone user to the telephone company was knowingly and voluntarily submitted.

        First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills.

        ...

        This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.

        I'd posit (as I'm sure that the ACLU's attorneys will argue) that

        a) most Verizon customers DO NOT know that their cell phones are constantly transmitting many of the various types of non-phone call related metadata which Verizon is passing on to the government - and therefore such transmissions are involuntary and distinguishable from the voluntarily dialed phone numbers data in Smith; AND

        b) most Verizon customers don't know that Verizon is storing the contents of their communications such as emails, texts, etc., since, unlike telephone numbers, the contents of those communications have no legitimate business purpose for Verizon to retain and store.  

        •  yeah, that's pretty much it (1+ / 0-)
          Recommended by:
          johnny wurster

          although this suit doesn't challenge Prism, and there's a warrant process to query the data as far as I can tell.  There'll no doubt be a lawsuit, but it'd look somewhat different.  Even though the leak joined the two, they are not the same program.  

          What "most Verizon customers" think is irrelevant to the suit, and the ACLU can't credibly plead ignorance of the terms of service.

          I'm not sure about the way you distinguish Smith -- all that information is on the phone bill - maybe location data could be at issue, but i'm not sure it's a distinction that makes much of a difference for the 4th amendment in this application, given the indifference the program has to anything individual.   That also suggests ripeness problem -- why isn't the right remedy exclusion at trial?

          Difficult, difficult, lemon difficult.

          by Loge on Tue Jun 11, 2013 at 03:41:08 PM PDT

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          •  The ACLU suit (0+ / 0-)

            I do not know the details of the ACLU suit, but based on the information in the diary, the ACLU is suing as a Verizon customer over the "search" of all phone records in violation of the Fourth Amendment. The scope seems limited to that. I know of no evidence that the phone records are part of the PRISM program though, it would seem to follow that, ultimately, they are.
            At least the ACLU has standing and we should see some discovery.

            +++ The law is a weapon used to bludgeon us peasants into submission. It is not to be applied to the monied elite.

            by cybersaur on Tue Jun 11, 2013 at 04:55:41 PM PDT

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            •  Well, I'm not sure that suffices to standing (0+ / 0-)

              and I'm not sure about discovery - there'd likely to be a motion for a stay pending a motion to dismiss, and discovery would still likely be under a protective order.  Congressional hearings are more likely to yield info.

              Difficult, difficult, lemon difficult.

              by Loge on Tue Jun 11, 2013 at 07:10:54 PM PDT

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        •  #2 bugs me. (0+ / 0-)

          Few people would consider me a stupid person, but I fail to see how we simply stop at this point; so we 'all know' the various phone companies have to take our request to call a certain phone number, then use their equipment to connect this call.  For this reason we have 'no expectation of privacy'.

          After that of course it's all magic!  We're no longer using the company's equipment so we may now expect complete privacy in our conversations.

          Oh, wait.  We're using the EXACT SAME HARDWARE.  Why do we think we have an expectation of privacy when it's been decided we had none before?

          -7.38, -5.38 (that's a surprise)

          Why must we struggle to protect the accomplishments of Democrats of the past from Democrats of the present? -- cal2010

          by 84thProblem on Tue Jun 11, 2013 at 07:24:14 PM PDT

          [ Parent ]

        •  Well, that's certainly disurbing: (0+ / 0-)
          All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.
          How does that differ materially from the manner in which one checks out a book from a library?
      •  It harms the ACLU as an attorney of record in (2+ / 0-)
        Recommended by:
        aliasalias, Chi

        its cases because it violates the attorney-client privilege.  As a potential client, I wouldn't be able to trust that the ACLU will protect our communications.

        The elevation of appearance over substance, of celebrity over character, of short term gains over lasting achievement displays a poverty of ambition. It distracts you from what's truly important. - Barack Obama

        by helfenburg on Tue Jun 11, 2013 at 03:56:15 PM PDT

        [ Parent ]

        •  All this is, is a priv log. (0+ / 0-)

          The fact of speaking to an atty isn't protected, and anyway, that's not in the lawsuit except very vaguely.  That's also no different from you speaking to your local fishmonger, in terms of data collection.

          Difficult, difficult, lemon difficult.

          by Loge on Tue Jun 11, 2013 at 07:04:12 PM PDT

          [ Parent ]

          •  I believe that the ACLU on occasion is an attorney (0+ / 0-)

            of record.  It represents a client, so the privilege would apply.

            But you don't have to be a lawyer to have a right of privacy.  It used to be a right that we all had pursuant to being citizens.

            The elevation of appearance over substance, of celebrity over character, of short term gains over lasting achievement displays a poverty of ambition. It distracts you from what's truly important. - Barack Obama

            by helfenburg on Wed Jun 12, 2013 at 03:50:52 AM PDT

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            •  All of tht is true, (0+ / 0-)

              and the ACLU still loses this lawsuit in my view. If this were proof of the contents of the communications, it'd be different, because the privacy violation would be more apparent.

              Difficult, difficult, lemon difficult.

              by Loge on Wed Jun 12, 2013 at 06:17:36 AM PDT

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              •  Well, it's all being done in secret so we don't (0+ / 0-)

                really know that they aren't looking at the content of communications.  In fact, Snowden has said that he did.  

                The elevation of appearance over substance, of celebrity over character, of short term gains over lasting achievement displays a poverty of ambition. It distracts you from what's truly important. - Barack Obama

                by helfenburg on Wed Jun 12, 2013 at 07:14:15 AM PDT

                [ Parent ]

                •  snowden was a bit unclear about that (0+ / 0-)

                  i didn't see him adequately distinguishing technical capacity from policy.  whenever he turns up, he should be asked about the specific basis for his knowledge.  Obviously, how the NSA is run is a critical question, but a narrower one.  it's not for Snowden to decide himself, but a function of political leadership and oversight.  

                  but the court can't really rule on anything that's not the lawsuit that's before them.  a lawsuit saying the policy is unconstitutional is different from saying a program lacks adequate controls, and would still not really solve the standing problem -- it still looks like a political objection more than a particularized legal one.

                  Difficult, difficult, lemon difficult.

                  by Loge on Wed Jun 12, 2013 at 08:53:34 AM PDT

                  [ Parent ]

                  •  The problem is with a system such as the one we (0+ / 0-)

                    apparently have is that employees such as Snowden do seem to have the power to decide themselves.  Technologically, I would suspect that they can access the content of our e-mail and phone calls.  Now we learn that hundreds of thousands of people employed by private security contractors have top security clearance.  I'd say there's a significant risk that all this can easily spiral out of control and our privacy can be violated, even if no one intended it.

                    The elevation of appearance over substance, of celebrity over character, of short term gains over lasting achievement displays a poverty of ambition. It distracts you from what's truly important. - Barack Obama

                    by helfenburg on Wed Jun 12, 2013 at 10:01:29 AM PDT

                    [ Parent ]

                    •  it's a fair point, (0+ / 0-)

                      but not this lawsuit.  i'm still not into relying entirely on disgruntled ex employees for gospel facts without some corroboration.  I'm sure a hacker could do the same thing, outside the NSA.

                      The contractor point is a good one - who's he accountable to? (to whom is he accountable?)

                      Difficult, difficult, lemon difficult.

                      by Loge on Wed Jun 12, 2013 at 10:30:53 AM PDT

                      [ Parent ]

                      •  Problem is, will we ever know the facts? (0+ / 0-)

                        The NSA will be able to declassify what it wants communicated publicly and deep-six what it wants to hide.  I wonder if Snowden is ever brought to trial whether it will be a public one.  I suspect we'll see a lot of the Issa move - making parts of the interview transcripts public and keeping the rest secret - that's how the govt. can play it when you allow them to operate in secret.  You may be right about the technicalities of the ACLU lawsuit  -- not my area of expertise, but there are larger considerations at issue here as well.  Larger issues of how we want our government to function.  

                        The elevation of appearance over substance, of celebrity over character, of short term gains over lasting achievement displays a poverty of ambition. It distracts you from what's truly important. - Barack Obama

                        by helfenburg on Thu Jun 13, 2013 at 03:28:41 AM PDT

                        [ Parent ]

    •  How does it harm? (0+ / 0-)

      Voting is the means by which the public is distracted from the realities of power and its exercise.

      by Anne Elk on Tue Jun 11, 2013 at 03:05:29 PM PDT

      [ Parent ]

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