U.S. appeals 'unconstitutional' ruling on NSA metadata programs

U.S. appeals 'unconstitutional' ruling on NSA metadata programs

Summary: One court said the NSA's data collection programs were a "vital tool" to protect Americans. But another court said such programs was "likely" unconstitutional. Guess which one the U.S. Justice Dept. wants to challenge.

TOPICS: Security
(Image: National Security Agency)

The U.S. courts can't seem to agree on whether the U.S. government's mass surveillance efforts are in breach of the law or not.

One thing's for certain: the White House didn't approve of the recent ruling that saw one federal judge rule that the U.S. National Security Agency's data collection programs were "likely" in breach of Fourth Amendment protections against unreasonable searches and seizures.

First reported by the Reuters news agency, the U.S. Justice Department filed an appeal on Friday in efforts to overturn a ruling that said the government's gathering of U.S. phone records and metadata may have been unconstitutional.

U.S. District Court Judge Richard Leon in December called the bulk collection of data an "indiscriminate and arbitrary invasion" of Americans' privacy.

But to add to the already messy legal quagmire, in a separate case another judge fell in favor of the NSA's data collection program. U.S. District Judge William Pauley said the government's efforts to vacuum up every shred of data it can was a "vital tool" and fell within the confines of U.S. law.   

The chances are at some point the Supreme Court will have to get involved, which could throw up some serious headaches to the U.S. government's mass surveillance efforts if the top U.S. court rules against it.

Topic: Security

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  • They don't know what they are doing

    They spend our money to monitor and watch us. How mad can that be. Instead of investing tens of billions in economic redevelopment they would rather spend money that we do not have on things that waste money than create it. It is the same in the UK where things will never change either where their politicians also cannot even start to comprehend why technical thinking should rule supreme. A classic example of ineptitude and being totally ignorant of technical people and how to build economies can be understood in the article


    Dr David Hill
    World Innovation Foundation
    • are these murders also for protecting? Merkel is also terrorist?

      The USA = murders for power, General Wesley Clark, retired 4-star U.S. Army general: "We’re going to take out 7 countries in 5 years: Iraq, Syria, Lebanon, Libya, Somalia, Sudan & Iran.." (about ten days after 9/11: “We’ve made the decision we’re going to war with Iraq.” This was on or about the 20th of September. I said, “We’re going to war with Iraq? Why?” He said, “I don’t know.” He said, “I guess they don’t know what else to do.” So I said, “Well, did they find some information connecting Saddam to al-Qaeda?” He said, “No, no.” He says, “There’s nothing new that way. They just made the decision to go to war with Iraq.” He said, “I guess it’s like we don’t know what to do about terrorists, but we’ve got a good military and we can take down governments.” And he said, “I guess if the only tool you have is a hammer, every problem has to look like a nail.”)
      Jiří Pavelec
      • Conquest is not murder

        I'm not at all convinced that the Iraq adventure was either wise or justified by the known facts, but it wasn't murder (though there were war crimes committed by servicemen and others, which should have been punished). I certainly won't shed any tears for Saddam Hussein, the government he led, or the demise of the Iraqi Baath Party.

        Any idea why we decided not to invade the other countries you mentioned?
        John L. Ries
        • Don't Do That...

          Don't rationalize irrational behavior. It makes you look irrational.

          Case in point: "I'm not at all convinced that the Iraq adventure was either wise or justified by the known facts"

          This means that what you think, is that the invasion of Iraq was illegal and, above all, UNLAWFUL. That alone is a crime...like a police officer entering private property without a warrant. If that occurs, and that officer kills the man of the house...is it murder? even if that gentleman is a reformed member of society?

          If you think it's ok for that officer to murder the man of the house that he/she entered without a warrant or probable cause... then, well...that makes you as irrational as he/she is...

          If you think it's not ok for that officer to murder the man of the house, then it shows a bit of respect of the Law and general empathy...

          Either way, what you can't possibly say, is "it wasn't murder"...
          • Illegal?

            The invasion was specifically authorized by Congress (rightly or wrongly), which has the authority to declare war. What law were you talking about?

            Murder is malicious killing. War is hell (to quote a famous general), and is only justified as a last resort, but it usually isn't malicious. It's clear that war crimes were committed and they should be investigated and punished (I suspect that the Bush Administration scapegoated enlisted personnel, but protected the officers from whom they got their orders). Unfortunately, I don't think that will happen at this late date. We can and have been arguing about whether the Iraq War was just, and our children may well be doing so when we're all dead and gone, but just!=legal and unjust!=illegal.
            John L. Ries
  • It would have been stupid...

    ...to appeal the ruling in favor of the program. If the President wanted to kill it, he could do it by executive order.

    I figure that in cases like this one, appeal should be directly to the Supreme Court, but that's probably not what the law provides.
    John L. Ries
    • I do think...

      ...that in the end, PRISM will be found unconstitutional by the Supreme Court, but until the Justices actually hear the case, "nobody knows nothing".
      John L. Ries
      • Predicted Supreme Court Vote

        6-3. Kennedy will write the majority opinion; Scalia will write the dissent.
        John L. Ries
        • Hmmm

          Maybe this is where Martial Law will kick in... Cuz the Supreme Court don't got no guns....
          • Precedent?

            And if President Obama were to pull an autocoup, ala Ferdinand Marcos, would he have enough support to govern? Would the armed forces (which have leaned Republican for decades) back a liberal Democrat who just tore up the Constitution?

            We can argue about how well the US Constitution has been followed since 1789, but 233 years of continuous elected constitutional government (since the Articles of Confederation took effect in 1781) at the federal level is an impressive record. Increasing disaffection with democracy and constitutional government is a concern and does increase the likelihood of a coup, but I expect that Mr. Obama will be handing over his office to a duly elected successor on January 20, 2017 after said successor's election has been certified by a duly elected Congress following procedures established when George Washington first took office in 1789.
            John L. Ries
  • Dear Mr.Whittaker...

    ... could you please send a copy of your article personally to your esteemed colleague Mr. Hess? He seems to be having problems with proof of NSA spying on everybody including U.S. citizens. Snowden leaks? That's not a proof. President Obama's apologies to Chancellor Merkel? That's not a proof. Boeing losing $4B Brazil contract to Saab? Not a proof. Leading infotech companies suing U.S. government? Not a proof. President's special board findings? That's not a proof either. Show us the proof!

    Well, maybe Supreme Court discussions (which could hardly be initiated on a non-issue) would be proof enough for Mr. Hess?

  • Well at least it's illegal in America

    In NZ our Prime Minister recently passed a law on a one vote majority in parliament that makes it legal for the local spy agency "the GCSB" to spy on its citizens, this was after the whole Kim dot com debacle where the GCSB broke the law by spying on dot com thinking he wasn't an NZ citizen, when in fact he was.

    The Prime Minister's solution was to just change the law and make it legal, so instead of being punished for breaking the law, the GCSB was actually rewarded with more power, now not only is it legal for the GCSB to spy on New Zealanders, but they can also give that information to who ever they choose, whether local or abroad.

    Now the local police force found that the GCSB did illegally spy on dot com, as well as at least 80 other NZ citizens, but the police didn't prosecute the spy agency because they, according to the police "did not have the necessary intent to satisfy the elements of the offence and be considered criminally liable"
    So it appears the NZ police will let you get away with breaking the law as along as you didn't intend to break the law.

    But in the end it probably doesn't really matter if the NSA spies on Americans, because the rest of the five eyes do, and the five eyes shares the information it collects, so the NSA can just get Americans information from the GCHQ.

    So what did we all do to deserve being treated as a criminals?
    • Since it only passed with a one vote majority...

      ...it's probably clearer to you which of your local MPs you would be supporting for re-election.
      John L. Ries
      • it's probably clearer to you which of your local MPs you would be supportin

        Yes it is, there was a conscience vote on the bill, but the PM told his party to toe the line and vote for the bill, and like a good bunch of sheep they followed their leader.
        Their was even a poll on a local current affairs programme in which 89% of people opposed the bill, but it appears the only time when the Government actually listens to the people is come election day.
        • Fortunately...

          ...the maximum parliamentary term in NZ is three years, unlike most British-style parliamentary democracies where the maximum term is five years. I like two year Congresses myself, but NZ is your country, not mine.

          Your mission, should you choose to accept it, is to do everything you can to make sure votes against civil liberties constitute political suicide.
          John L. Ries
          • Good Advice. And your posted comments are a gift to ZDNet readers.

            Just some speculation, a few observations and question for you, John. Have you ever wondered how India's Mahatma Ghandi was able to force the British Empire into changing their colonial policies?

            Despite the best efforts of the British Ruling Class at the time (and the majority of their citizens as well) to adhere to the status quo, IMO the combined force of mere "words" spoken by Ghandi and by his many supporters (both domestic and abroad) plus a policy of non-violence (while exploiting the negative effects of any violent actions initiated by the British against Ghandi and his followers) eventually overcame the considerable advantages that the British Ruling class enjoyed ... and history was changed.

            However (and there is always a "however"), the key to change was that the British people were inherently "civilized" - for lack of a better term.

            Civilizations that respect the principals of liberty and justice (like the British) will eventually "do the right thing" if "the right thing" is pointed out to them long enough.

            Of course, the will to confront attacks against basic human rights takes courage above all else and what you proposed to guzz46 and his fellow New Zealanders will demand much from them. Yet I know they are up to the task.

            Likewise, in our country, in our generation, we might be facing a potential situation as grave as any our nation has had to internally face and confront since the Civil Rights Movements of the '60s. (and that assessment is conservative)
          • Unlike the British, however, I'm not convinced the NSA could be

            characterized as being "civilized". I believe even Ghandi would have problems convincing them to change their policy of working with secret courts or even spying on Members of Congress as a routine course of action. However, I believe in the inherent civility of the majority of American citizens to "do the right thing".

            Of course, as you stated previously, all it would take is an Executive Order to change NSA policies and that particular "buck" stops at President Obama's desk.
        • One further thought

          The problem I've always had with parliamentary government is that power tends to become concentrated in the hands of the executive, while Parliament itself becomes a combination electoral college, debating society, and rubber stamp. It strikes me that a number of trends have exacerbated this tendency:

          1. Unicameral parliaments (which is what NZ has).

          2. Weak heads of state who are legally required to follow the advice of the government (fortunately, the Governor General of NZ still has the authority to say "no", though this appears to be seldom exercised).

          3. Party leaders who are neither elected by, nor responsible to their caucuses (making individual candidates little more than surrogates for the party leaders)..

          4. List system proportional representation which makes MPs solely responsible to their parties and not individually accountable to their constituents.

          I am admittedly an American from the land of checks and balances, but I humbly suggest that that is exactly what the typical parliamentary democracy needs more of. Accordingly I suggest that New Zealanders give serious thought to reviving the old Legislative Council, either making it an elected body, like the Australian Senate, or an appointive one that is sufficiently independent of the Government that it can say "no" when it needs to (or at least force a referendum), which the old one was not.

          If the Council is to be elective, then the composition and manner of election should be sufficiently different from the House that passage by one will not guarantee passage by the other. For example, there could be two Councillors from each county, elected by majority vote for two terms of the House, so that one Councillor is elected from each county at every general election by majority vote (this would definitely give the parties a reason to seriously contest rural areas, which probably don't get enough attention). If a veto by a rural dominated Council is seen as unacceptably undemocratic, then a law could be made that if a bill is passed by one house, but is rejected by the other, or if the houses fail to reach agreement within a certain period of time, the Governor General (presumably acting on the advice of the Government) would have the authority to submit the bill as most recently passed by the house of origin to a referendum and it would become law if it passes.

          An example of an appointed council not unlike the old one, but which would be much more independent, would be a 35 member Council appointed by the Governor General: 21 appointed on the proposal of the Prime Minister, and 14 appointed on the proposal of the Leader of the Opposition for seven year terms with five Councillors appointed each year (three Government nominees and two Opposition nominees). To prevent the Council from becoming a holding tank for losing House candidates, there could be a rule that a Councillor would be ineligible for election to the House until his current term expires (even if he resigns).

          Either way, it would become much more difficult to simply ram legislation through on a party line vote, which I think would be a good thing.
          John L. Ries
    • And...

      This is why I never want to live in a Democracy...
      • Do you prefer a theocracy ?

        Or a dictatorship?

        Either one can kill you for what you say.

        Democracy isn't always pretty... but it beats all the others.