Thread: NSA data collection likely illegal, judge rules

NSA data collection likely illegal, judge rules


By Ellen Nakashima and Ann E. Marimow / The Washington Post

Published Dec 17, 2013 at 12:01AM
WASHINGTON — A federal judge ruled Monday that the National Security Agency’s daily collection of virtually all Americans’ phone records is almost certainly unconstitutional.
U.S. District Judge Richard Leon found that a lawsuit by Larry Klayman, a conservative legal activist, has “demonstrated a substantial likelihood of success” on the basis of Fourth Amendment privacy protections against unreasonable searches.
Leon granted the request for an injunction that blocks the collection of phone data for Klayman and a co-plaintiff and orders the government to destroy any of their records that have been gathered. But the judge stayed action on his ruling pending a government appeal, in recognition of the “significant national security interests at stake in this case and the novelty of the constitutional issues,” Leon wrote in a 68-page opinion.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval,” said Leon, a judge on the U.S. District Court for the District of Columbia.
“Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment.”
The strongly worded decision stands in contrast to the secret deliberations of 15 judges on the nation’s surveillance court, which hears only the government’s side of cases and since 2006 has held in a series of classified rulings that the program is lawful.
Decision under review
A Justice Department spokesman, Andrew Ames, said Monday that the government was reviewing Leon’s decision. “We believe the program is constitutional as previous judges have found,” he said.
The challenge to the NSA’s once-classified collection of phone records is one of a series of cases filed in federal court since the program’s existence was revealed in June by former NSA contractor Edward Snowden.
Snowden praised the ruling in a statement made to journalist Glenn Greenwald, who received NSA documents from Snowden and first reported on the program’s existence.
“I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” said Snowden, who has received temporary asylum in Russia, where he is seeking to avoid U.S. prosecution under the Espionage Act for leaking NSA documents. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
The ruling also comes as Congress is debating whether to end the NSA’s “bulk” collection of phone data or endorse it in statute. The White House, U.S. officials say, supports maintaining the program.
“It will be very difficult for the administration to argue that the NSA’s call-tracking program should continue when a federal judge has found it to be unconstitutional,” said Jameel Jaffer, deputy legal director of the American Civil Liberties Union, which has also sued the government over the program’s constitutionality.
But George Washington University law professor Orin Kerr said, “It gives opponents of the NSA program more fuel to add to the fire, but its legal impact is quite limited because the case now just goes to the court of appeals.”
The government has stressed that the program collects only “metadata,” such as numbers dialed and the times and lengths of calls, but no phone content or subscriber names. Officials say that only numbers linked to suspected terrorists are run against the database.
Leon’s opinion countered that the program is so sweeping — the database easily contains billions of records — that it amounts to a “dragnet” that intrudes on the constitutional expectation of privacy. He dismissed the government’s claim that “special needs” requiring quick access to data that could thwart a terrorist plot make a warrant impracticable. “No court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion,” he said.
The government’s legal justification for the call-tracking program is based on a 1979 case, Smith v. Maryland, which involved the surveillance of one criminal suspect over a two-day period. In that case, the Supreme Court said that Americans have no expectation of privacy in the telephone metadata that companies hold as business records, and that therefore a warrant is not required to obtain such information.
Different question
A succession of judges on the Foreign Intelligence Surveillance Court have adopted the government’s argument based on that ruling.
But Leon said the question the Supreme Court confronted in 1979 is not the same as the one he was faced with. “Indeed, the question in this case can more properly be styled as follows: 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 34 years ago, that a precedent like Smith does not apply?” he wrote. “The answer, unfortunately for the government, is now.”
Kerr said Leon is wrong to suggest that Smith no longer applies. That decision, he said, draws a clear distinction between the collection of data on numbers dialed and on call content. The metadata information the government is gathering today, Kerr said, is the same type of information the court said that law enforcement could collect more than 30 years ago.
“The opinion is more valid now than it was,” Kerr said, adding that “it’s up to the Supreme Court to overturn its decision, not trial judges.”
Leon, who was appointed by President George W. Bush in 2002, said the government has played down the program’s invasiveness.
The “almost-Orwellian technology” that allows the government to collect, store and analyze phone metadata is “unlike anything that could have been conceived in 1979” and, “at best, the stuff of science fiction,” he said.



http://www.bendbulletin.com/home/157...l-judge-rules#

United States Senator Mike Lee



On several occasions in recent months, including in hearings before the Judiciary Committee, I have noted that the NSA’s metadata program raises serious constitutional issues that are not resolved by Smith v. Maryland, a Supreme Court case that was decided almost a quarter-century ago. Today’s decision highlights the constitutional concerns I have been raising, as well as other troubling aspects of the program. I continue to harbor strong concerns regarding the government’s indiscriminate collection of personal data on all Americans. This case will undoubtedly be appealed, and it will take time for it to make its way through the courts. Meanwhile, I will continue to push to improve oversight of the federal government’s surveillance activities that implicate core constitutional concerns.
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Brasscheck TV


Some sanity from a federal judge.

NSA domestic spying is illegal.

Not that it will change anything but at least someone called "bullshit" on ti.

http://www.politico.com/story/2013/1...ge-101203.html

NSA Director Plays Offense: Let Us Spy, We Aren’t Reading Your Messages

21 hours ago | Politics, US | Posted by Samuel Eaton

• December 16, 2013

Article submitted by guest contributor Ezra Van Auken.

Looking to ease the Americans’ tensions and primarily concerned with federal spying, National Security Agency (NSA) director Keith Alexander took on lawmakers this past Wednesday, hoping to bring understanding to the saga of mass surveillance. Rather than opening discussion to possible NSA reform, more innovative surveillance, or anything of the sort, NSA’s Alexander told a Senate committee that there’s no better way at this time.

The NSA director compared his agency’s unfavorable spying to holding a hornet’s nest, and said that while officials are being stung, there isn’t an alternative solution. Alexander explained that prior to the September 11th attacks, NSA officials had no ability to track communications between foreign and domestic bystanders. While professing that current NSA programs “connect the dots”, Alexander said there’s a balance between privacy and spying.
Civil liberties proponents including groups like the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF), which have been putting up a fight since Snowden’s leaks, would beg to differ. Both advocacy groups have aimed at the federal government, filing lawsuits against the NSA and White House. Of course, Snowden’s leaks have only solidified claims by privacy groups, giving ample reason to take action.
Reapplying his position to the Senate Judiciary Committee, Alexander noted, “And [he] think[s] these programs have been effective.” Once again, however, media and advocacy group objections have shown a much different story than “effective”. Most significant was the claim by Alexander, earlier in the year, that NSA officials had foiled 54 terror-related incidents. The claim by Alexander and the President was quickly refuted.
Declassified charts from July provide insight on what exactly the NSA story is behind the alleged 54 thwarted plots. Off the bat, the declassified material reads, the NSA “has contributed to the [US government’s] understanding of terrorism activities and, in many cases, has enabled the disruption of potential terrorist events at home and abroad.” And whether or not Alexander and Obama forgot the NSA’s numbers, it certainly wasn’t 54.
Rather, the number is 42, and only the NSA identified four of the foiled plots. Elliot and Meyer of ProPublica explained that “The NSA itself has been inconsistent on how many plots it has helped prevent and what role the surveillance programs played.” Throwing more fudge onto the NSA’s success, director Alexander decided once again to make bold claims behind cameras – this time in front of CBS’s 60 Minutes with John Miller.
For any viewer who watched the CBS program, conflicted interests were glowing. Miller, the reporter assigned to interviewing Alexander, actually spent years inside the National Intelligence for Analytic Transformation and Technology as associate deputy director, and prior to that, held position in the Federal Bureau of Investigation (FBI). Ironically, the entire interview sounded like a shock to Miller, who threw Alexander softballs.
Despite the Snowden storm of NSA information, Alexander and Miller spent Sunday night’s CBS segment talking as if information never existed. He asked the NSA director whether or not it’s true that “There is a perception out there that the NSA is widely collecting the content of the phone calls of Americans.” Alexander, shrugging the obvious, replied, “No, that’s not true,” and added that NSA officials can only target Americans with probable cause.
Alexander said the agency itself has only 60 authorizations on specific persons, allowing officials to scan their phones, e-mails and other devices. However, recent reports show the NSA tracks over five billion phone users. Using up 27 terabytes of computer-server space, the agency is constantly pumping data, a Snowden report showed.

Bringing up a FISA court judge’s claim that even with the FISA courts, NSA officials have avoided using the court’s powers to receive confirmation requests, Miller asked for reasoning. Director Alexander’s blunt and obnoxious answer was that “There was nobody willfully or knowingly trying to break the law.” While Alexander concluded that nothing was willful or knowing, Miller decided not to challenge the response.
Giving in to the NSA director, Miller felt satisfied with the loose answer that held no proof of either happening. It’s as if Miller decided not to challenge Alexander because Alexander is the NSA director and therefore must know facts from conjecture. On the other hand, Miller was in the same intelligence gathering process as Alexander, and challenging the very practice with which you once partook in is certainly not protocol.
With Alexander packing on the interviews and Senate hearings, it seems the NSA wants to shape up more of the picture than they have in recent months.

Read more: http://benswann.com/nsa-director-pla...#ixzz2nki3cBK7
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Do We Need Wiretapping Laws? A Shockingly Familiar Debate From 1954


Published on Dec 16, 2013
A debate on the validity of arguments for government wiretapping of private phones calls of private citizens from 1954.

TV discussion program with host -- "Washington Spotlight"
This movie is part of the collection: Prelinger Archives
Producer: American Film Forum




http://libertycrier.com/need-wiretap...89aa-284711521


And the band plays on!!!!

White House sticks with double duty for NSA director

With US surveillance policy under review, the White House decides to keep one military official in charge of both the NSA and Cyber Command.

by Carrie Mihalcik
December 13, 2013 12:59 PM PST

• 
  

NSA chief Gen. Keith Alexander speaks at a Senate committee hearing on US surveillance on December 11, 2013.
(Credit: Alex Wong/Getty Images)
It looks like NSA Director Gen. Keith Alexander, and his successor, will hold on to the additional role as head of US cyberoperations.
The Obama administration said Friday that a single military official will continue to head up both the US National Security Agency and US Cyber Command.
Related stories

• Snowden: Dear Brazil, the NSA is watching you
• Judge: NSA phone snooping likely unconstitutional
• NSA divided over possible amnesty deal for Snowden

"Following a thorough interagency review, the administration has decided that keeping the positions of NSA Director and Cyber Command Commander together as one, dual-hatted position is the most effective approach to accomplishing both agencies' missions," National Security Council spokeswoman Caitlin Hayden said in an e-mailed statement. "Given General Alexander's retirement this spring, it was the natural time to review the existing arrangement."
Military officials were reportedly considering splitting the role and went so far as to draft a list of possible civilian candidates to lead the NSA. Alexander, who is expected to resign in the spring, has been head of the NSA since 2005 and took on the role of head of Cyber Command in 2010.
The administration said the dual role allows for "rapid response" to cybersecurity threats, and it added that splitting the position would mean instituting elaborate procedures to ensure coordination and avoid duplicate capabilities between the two agencies.
The White House's decision, which is part of a wider review of US surveillance policy, comes just days before a presidential task force was expected to submit recommendations that "constitute a sweeping overhaul of the NSA," reported The Wall Street Journal earlier Friday, citing "people familiar with the plans."
While the top spot at the NSA has managed to stay intact under increased scrutiny, The Hill reported Friday that NSA Deputy Director Chris Inglis, the top civilian at the agency, stepped down this week. NSA Executive Director Fran Fleisch will now serve as acting deputy director.
Inglis had previously said he would be stepping down, and an NSA spokeswoman told The Hill the plan had been "set for some time."
The plan was "first announced internally at NSA this past summer, for Mr. Inglis to retire at year's end and Gen. Alexander in the spring of 2014," NSA spokeswoman Vanee Vines said, according to The Hill. "In each case, their time in office represented a significant extension of service beyond their original tours."
Update, 3:06 p.m. PT: Added comment and information from National Security Council spokeswoman Caitlin Hayden.
Update, 2:04 p.m. PT: Added information on NSA Deputy Director Chris Inglis stepping down.

Originally posted at Politics and Law

http://news.cnet.com/8301-1009_3-576...tag=CAD2e9d5b9