ACLU Sues to Stop Bulk Phone-Data Collection, Even if it’s Only Temporary
The nation’s secretive surveillance court should not have reinstated the National Security Agency’s bulk collection of Americans’ phone call data even temporarily, because an appellate court ruled that the program was illegal in May, the American Civil Liberties Union argued in a lawsuit filed on Tuesday. The suit asks the appellate court to overrule the secret court and enjoin the program immediately.
The Second Circuit Court of Appeals ruled on May 7 that the NSA program that vacuumed up domestic metadata relating to all American phone calls — who was calling who, when and for how long — was illegal, and that Congress did not intend Section 215 of the Patriot Act to authorize the government to instate such a wide dragnet. Information about every single American’s phone call behavior is not “relevant to an authorized investigation,” the court concluded.
Congress let the spying program lapse by failing to renew it before its June 1 expiration date. Then, when reform legislation passed the following day, Congress called for the massive spying program to end — but with a grace period.
The Foreign Intelligence Surveillance Court then ruled that the bulk surveillance, first revealed by NSA whistleblower Edward Snowden two years ago, could be resumed for five months.
But in a motion filed on Tuesday afternoon, the ACLU and its New York branch argue that the NSA is twisting the court’s words, and that bulk collection must be ended immediately because it has been, and continues to be, illegal.
“The government says it will wind down this unconstitutional program eventually, but the Constitution doesn’t have a grace period,” said ACLU Staff Attorney Alex Abdo in a statement. “Bulk collection is unconstitutional and must end.”
Abdo argued the case before the Second Circuit, where a three-judge panel ruled the program illegal — but noted that Congress was going to reassess the law soon. It did not issue an injunction.
The USA Freedom Act, passed on June 2, requires the NSA to get a specific warrant in order to obtain call records or metadata from communications providers — starting on Nov. 29.
Anticipating questions about the Second Circuit decision, the surveillance court judge explained in his ruling that only a higher court could tell him what to do: “Second Circuit rulings are not binding on the FISC, and this court respectfully disagrees with that Court’s analysis, especially in view of the intervening enactment of the USA Freedom Act,” wrote Judge Michael Mosman in the court order.
The ACLU took issue with that. “This dragnet surveillance program should never have been launched, and it should certainly be terminated now,” Jameel Jaffer, deputy legal director of the ACLU, said in a statement. “Not even the government contends anymore that the program has been effective, and the Second Circuit has already concluded that the program is illegal. It’s a needless and unlawful intrusion into the privacy rights of millions of innocent Americans.”
(This post is from our blog: Unofficial Sources.)
Photo of protesters in January 2014 by Win McNamee/Getty Images
There is way too much money in the surveillance state to get a proper leash from our bought and paid for careerist Congress and our Courts are not much better.
With the clowns we currently have controlling our government I would not expect much improvement. The spooks of the NSA & CIA have a largely free hand even to the point of publicly lying to Congress under oath, ignoring US laws and treaties for torture and know they will never be prosecuted. Just like the banksters they know the rules are for the little people.
A Wind down? A Wind down? Are you fucking kidding me?
If some group was stealing cars to give to the poor, and told to stop because it was illegal, how could some jack ass govt official pronounce that “they’ll stop soon, they have a wind down period “?
The United States is no longer a nation of laws, just a nation of govt whims.
https://www.emptywheel.net/2015/05/15/how-the-second-circuit-fisc-and-the-telecoms-might-respond-to-mcconnells-gambit/
https://www.emptywheel.net/2015/07/14/beware-fiscr-fast-track/
As one of those relishing the collision between our public US circuit courts and the FISC (Foreign Intelligence Surveillance Court) I had been wondering what type jurisdictional and procedural rules would govern disputes between the our Open Circuit Courts and our Closed Secret Court . I found the following (submitted by a contributor to Marcy Wheelers blog back in May in advance of USFA) helpful in this regard.
scribe on May 15, 2015 at 2:32 pm
On the appellate jurisdiction and procedure front, a couple things. The Second Circuit has issued its opinion, true. But it has not yet issued its mandate. The Mandate is the order incorporating the opinion and telling the lower court what to do. It is through the mandate that the Circuit (appellate) court closes its file and relinquishes jurisdiction to the lower court (in the event of a remand or a reverse-and-remand), or just plain closes the file on the case (in the event of an affirmance or reversal). Until the Circuit issues its mandate, the case is still open and in the hands of the Circuit Court.
The time-space between opinion and mandate is usually about 2 weeks. This gives the parties time to digest the opinion and decide what to do next (like, e.g., ask for a stay so they can seek to go to the Supreme Court, or, e.g., move for reconsideration) and for the parties (and anyone else) to tell the Circuit Court about typos and such, so corrections can be made.
So, the Second Circuit case is not “final” at this point. And, since it is not “final”, it’s open to revision.
This can cut a couple ways. The ACLU could move the court to reconsider the way it punted on the Constitutional issues, particularly if the results out of Congress are contrary to what the CLU might like. Similarly, the government could seek to have the Court revise the opinion to accommodate new developments out of Congress. But it would be a mistake to consider the Second Circuit’s opinion as some Rock of Gibraltar be-all and end-all. It ain’t over ’til it’s over, and it
ain’t over yet.
On to the concept of “judicial notice”, in this context it’s the idea that the FISA Court would “take notice” of what the Second Circuit says. First, understand the distinction between “binding” and “instructive” opinions and decisions of courts. A “binding” opinion is one in which a [higher] court decides an issue and compels other [lower] courts to obey it. An “instructive” opinion is one where a court decides an issue and that decision can be cited to, used by or relied upon by other courts to guide or “instruct” the other courts on how this issue has been decided elsewhere. The idea is to promote uniformity in the law across jurisdictions.
Decisions of an appellate (Circuit) court on appeals are binding on all trial and lower courts within the territorial jurisdiction of that Circuit. So, all US District Courts (and magistrates) in the Second Circuit (i.e., NY, Conn. and Vt.) are bound to obey the Second Circuit’s decision, when they are presented with the same issue that the Circuit decided. Go across the river, though, and enter the Third Circuit (NJ, Pa., Virgin Islands, Delaware) and the Second Circuit’s decision is merely “instructive” – not only to the District Courts of NJ, Pa., etc., but also to the Third Circuit Court. If in a later case the Third Circuit were to consider the exact same issue the Second Circuit has already decided, they would not be bound by that earlier decision. The Third Circuit could follow – partly or wholly – or reject the decision (in whole or in part, and for any reason) of the Second Circuit. This is the genesis of the so-called “circuit splits”, which are the most likely way to get the Supreme Court to take a case – only the Supreme Court’s decisions can bind circuit courts in the way a circuit binds the district courts in its circuit.
As to the FISA court, it (and the FISCR) should be considered as just another Circuit. They don’t have to follow the decisions of another Circuit’s courts – trial or appellate. (It’s not quite as clear as that, but the reasons why are pretty arcane and not worth going into.) But, they can allow themselves to be “instructed” by them.
That leads into the concept of “judicial notice”. That’s a rule in which courts “take notice” of certain facts: that water is wet, that rain falls and does not rise, and the like. Facts which are the subject of judicial notice are facts which are not reasonably susceptible of dispute. The proceedings and adjudications of other courts are that kind of facts. There are some circumstances in which the court being asked to take notice is required to do so, and some in which it may, but does not have to. Decisions which are “instructive” – like the Second Circuit’s decision here would be to the FISA court – they can, but don’t have to, take notice.
Judicial notice, in this context, brings up the concept of “comity”. That means, in so many words, courts getting along with each other by recognizing the others’ decisions and promoting uniformity of the law across jurisdictions.
Will the FISA court be bound by the Second Circuit? No. Will it respect and follow it? Probably.
I hope this helps.
So now there’s at least 2 groups of people who are above the law in America: wall street and nsa
The legal issue will be that for the recent temporary approval,
Congress was fully aware of how the term “relevant” would be applied. Therefore,
a good part of that prong of the second circuit ruling falls away making it difficult for the Second Cir. to enjoin the program.
Without a ruling on the constitutionality of the program, there is probably
no quick action the court can take and the Second Cir. will be in no rush to
issue a ruling.
Do you know of any cross-compilation between bulk collection of data and correlation using the Census? Or does anybody there?
But how else will they get all the brain signatures and voice samples? They didn’t get that job finished and still need to collect it from some people. And the social network contacts and their positions, and mind cloning. All the things that really hurt you. All your finances, assets and all your secrets. Your levels of happiness and sadness, anger and disgust. Your medical history – how might you die “naturally”? They need all of that. Matrix society coming.
Illegal is illegal.
Unconstitutional is unconstitutional.
Wake Up!
Yes ACLU!! Keep fighting the good fight!! I salute you.
Just a logistical question. By the time this suit receives attention, won’t it be close to the unwinding deadline in November?