Judge Rules N.S.A. Phone Surveillance Is Lawful in Case Filed by A.C.L.U.

[onehandle]

Source: New York Times

WASHINGTON — A federal judge in New York on Friday ruled that the National Security Agency’s program that is systematically keeping phone records of all Americans is lawful, creating a conflict among lower courts and increasing the likelihood that the issue will be resolved by the Supreme Court.

In the ruling, Judge William Pauley, of the United States District Court for the Southern District of New York, granted a motion filed by the federal government to dismiss a challenge to the program brought by the American Civil Liberties Union, which had attempted to halt the program.

Judge Pauley said that protections under the Fourth Amendment do not apply to records held by third parties, like phone companies.

“This blunt tool only works because it collects everything,” Judge Pauley said in the ruling. “While robust discussions are underway across the nation, in Congress and at the White House, the question for this court is whether the government’ bulk telephony metadata program is lawful. This court finds it is,” he added.



Read more: http://www.nytimes.com/2013/12/28/us/nsa-phone-surveillance-is-lawful-federal-judge-rules.html

[littlewolf]

1. this is so sad I wonder what they have on the judge. nt

[deurbano]

4. A previous Pauley ruling on DU: "Oh... This Is Rich... Literally... Goldman Sachs Wins Again..."

OP from WillyT: http://www.democraticunderground.com/?com=view_post&forum=1002&pid=1134234

Goldman Executives Win Dismissal Of Robo-Signing Lawsuit
Reuters | Posted: 08/14/2012 2:43 pm Updated: 08/14/2012 4:42 pm

<snip>

Aug 14 (Reuters) - Goldman Sachs Group Inc officials won the dismissal of a shareholder lawsuit accusing them of breaching their fiduciary duties by failing to comply with terms of a federal bailout, letting workers engage in "robo-signing," and causing the bank to package troubled loans into mortgage securities.

U.S. District Judge William Pauley in Manhattan said on Tuesday the plaintiffs failed to show that Goldman executives and directors, including Chief Executive Lloyd Blankfein, acted in bad faith in leaving the federal Troubled Asset Relief Program in June 2009, and freeing the firm from restrictions on executive pay.

Pauley also said the plaintiffs failed to present enough evidence of "red flags" to suggest that directors should have recognized deficiencies in Goldman's mortgage servicing and securitization operations.

<snip>

Link: http://www.huffingtonpost.com/2012/08/14/goldman-lawsuit_n_1776621.html?utm_hp_ref=business


(Sadly, looks like he was a Clinton nominee.)

[reACTIONary]

20. LOL, They have the SCOTUS prescidents "on him"...

...he is simply ruling in accordance with settled law. You know, doing his job the way its supposed to be done.

[jeff47]

23. They "have" a 1979 SCOTUS ruling

That ruling declared phone metadata to not be protected - it belongs to the phone company and not the individual. Thus the individual has no right to privacy regarding the data - it isn't their data.

The recent ruling declaring the collection illegal actually conflicts with this SCOTUS precedent. In that case, the judge ignored this precedent on the grounds that mass collection is different than individual collection (the 1979 case was about collecting data on an individual).

It's interesting that this judge is ruling the opposite - it appears this judge thinks individual collection should be protected, but mass collection should not.

[frylock]

2. this blunt tool works, just don't ask us to provide evidence that it does work

[Thinkingabout]

5. Can you think of a reason why the evidence may not be furnished?

[frylock]

7. i would venture to guess, by the shifting stories of how many attacks the program has prevented..

that the inability to provide evidence that the program has prevented any attacks is because there is no evidence that the program has prevented any attacks.

[Thinkingabout]

13. You may need to think on more simple paths. Inasmuch as this involves national security reasons

to not reveal the information you seek is reason enough to keep the information classified. I do not know how you de-classify information in endeavors which are ongoing.

[frylock]

17. and yet folks on the intel committee state that there is zero evidence of prevented attacks..

0.

[Thinkingabout]

26. Who has stated this, I have seen this ask for and it was not given but not there there is

zero evidence.

[frylock]

29. Udall, Wyden Call On National Security Agency Director to Clarify Comments..

Udall, Wyden Call On National Security Agency Director to Clarify Comments on Effectiveness of Phone Data Collection Program

"We have not yet seen any evidence showing that the NSA's dragnet collection of Americans' phone records has produced any uniquely valuable intelligence. Gen. Alexander's testimony yesterday suggested that the NSA’s bulk phone records collection program helped thwart 'dozens' of terrorist attacks, but all of the plots that he mentioned appear to have been identified using other collection methods. The public deserves a clear explanation," Udall and Wyden said. "We look forward to reviewing the analysis that the general has promised to provide showing how the intelligence community arrived at these numbers. In our view, a key measure of the effectiveness of the bulk collection program will be whether it provided any intelligence that couldn’t be obtained through other methods."

Udall and Wyden questioned assertions last week that the NSA's bulk collection of Americans' phone records "has actually provided any uniquely valuable intelligence" beyond what is available through other, less intrusive surveillance programs: "As far as we can see, all of the useful information that it has provided appears to have also been available through other collection methods that do not violate the privacy of law-abiding Americans in the way that the Patriot Act collection does. We hope that President Obama will probe the basis for these assertions, as we have."

Haven't yet seen evidence NSAs dragnet collection on Americans has thwarted "dozens of attacks" as Alexander suggests http://t.co/xl0Y5hwtJr

— Ron Wyden (@RonWyden) June 13, 2013

http://www.wyden.senate.gov/news/press-releases/udall-wyden-call-on-national-security-agency-director-to-clarify-comments-on-effectiveness-of-phone-data-collection-program

[Thinkingabout]

30. Let me remind you, this information is collected by providers, it is passed to NSA through

blanket warrants from FISC. Do you hear of the provider employees running around giving everyone one the data? If you do that employee is subject to charges of espionage, etc. Rogue employees do not have the option to take matters into their own hands,

[frylock]

31. and this has fuckall to do with the claims of Wyden and Udall?

you know, about the lack of ANY evidence to back up the assertion that NSA snooping has prevented 54, dozens, or even ONE attack.

[Thinkingabout]

61. When has national security been required to reveal classified information to the general

Public? There are reasons why this information is classified. What law is in place to force them to release this information. I doubt most raising hell to know would be able to handle the truth. This is becoming more of a CT every day someone ask for classified, it is becoming more and more a CT.

[frylock]

65. uhhh.. the classified intel has been revealed to wyden and udall..

perhaps you've heard of them? Members of the senate intelligence committee? Both saying PUBLICLY that there is ZERO evidence that the NSA programs have prevented any attacks. Any of that ringing a bell at all?

[jeff47]

40. Uhhhhh.....

The metadata is the phone company's data. That's the basis of the 1979 SCOTUS decision on the subject.

Provider employees can run around giving the data to anyone they want. It's their data. They can do whatever they want with it. In fact, they sell the data to third parties.

The only requirement from the FISC is they must hand over a copy to the NSA.

[questionseverything]

67. video at link

http://www.democraticunderground.com/1017165855

explains why the smith decision does not apply

[jeff47]

68. Lovely wishful thinking. (nt)

[jsr]

3. This is the same guy who ruled for Goldman Sachs

http://www.huffingtonpost.com/2012/08/14/goldman-lawsuit_n_1776621.html

Goldman Sachs Group Inc officials won the dismissal of a shareholder lawsuit accusing them of breaching their fiduciary duties by failing to comply with terms of a federal bailout, letting workers engage in "robo-signing," and causing the bank to package troubled loans into mortgage securities.

U.S. District Judge William Pauley in Manhattan said on Tuesday the plaintiffs failed to show that Goldman executives and directors, including Chief Executive Lloyd Blankfein, acted in bad faith in leaving the federal Troubled Asset Relief Program in June 2009, and freeing the firm from restrictions on executive pay.

Pauley also said the plaintiffs failed to present enough evidence of "red flags" to suggest that directors should have recognized deficiencies in Goldman's mortgage servicing and securitization operations.

[billhicks76]

9. That's One Corrupt Judge

Someone should out his mistress.

[24601]

6. Appointed to the federal bench by Bill Clinton. But keep the ruling in perspective, he didn't say

President Obama must order this collection. He didn't say it's a good idea. He didn't say that it's the most effective program.

He said only that it's legal. It's the what the administration may do, not what the administration should do, and that aspect would not be in the judiciary lanes of the road.

[billhicks76]

8. BLACKMAIL!!!

I have a thousand bucks betting he is a victim of NSA "leverage"...they spy on judges too and were probably going to out his mistress just like they did in the old days....remember the DC Madam that supposedly hung herself after going on national radio saying she would never do that and if found dead assume murder? Well she said she had judges in her little black book as well as Dick Cheney and other Senators like David Vitter. They want us to behave properly but they act like felons. Our country has become a sick joke and it's ironic these guys exploit religion to further their own ends because if Hell is real they are surely going there. More 911 scare tactics for mass consumption. Sickening. Where are the sock-puppet profiles now?

[jeff47]

25. Sure, it's not like there's an on-point 1979 SCOTUS ruling or anything.

Oh wait.....

(In 1979, the SCOTUS ruled phone metadata belongs to the phone company, and thus the individual has no right to privacy regarding phone metadata. This was in a case where the government collected metadata one individual, and used the metadata to help convict that individual. Since then, your phone company has been selling your metadata to third parties. The disclosure of those sales is buried in the fine print on your contract or bills.)

[JDPriestly]

33. There is no on point ruling. Congress could make this illegal quite easily.

And that is what Congress should do.

The problem isn't just the COLLECTION of the metadata. It is the analysis and use of the metadata to group people, to study social networks, etc. That is what is politically dangerous and negates the idea of democracy and freedom.

It also gives too much knowledge and therefore power to the executive branch of the government over the individuals serving in the other two branches.

The underlying theory and strength of our government is the independence and equality of our three branches of government -- the separation of powers. It is like the tripod upon which our government is balanced. Gradually, the tripod has been tipped so that the executive branch is stronger than the others. If we do not shorten the leg of the executive branch, our tripod will fall over. This NSA program weakens the balance in our government even more than the constant wars.

When the government uses this sweeping collection of our metatdata it virtually equates all of us with terrorists. By all of us I mean not just you and me but also scientists, teachers, ministers, lawyers, business executives, inventors, children, teenagers, legislators, judges, all of us. We are all treated as potential terrorists by the executive branch of the government. That is the very definition of a police state.

[jeff47]

34. Those aren't contradictory statements.

Congress could make this illegal quite easily regardless of SCOTUS precedent.

The problem isn't just the COLLECTION of the metadata. It is the analysis and use of the metadata to group people, to study social networks, etc. That is what is politically dangerous and negates the idea of democracy and freedom.

And the problem with that argument is no one has provided evidence that such analysis is taking place.

The phone companies discard the data over time. From 3 months to years to never, depending on the company. As far as we currently know, the NSA is storing the data to prevent it from being discarded. No one has provided evidence of a large-scale analysis of the metadata of US persons.

If your response is "Well duh! Of course they're looking at our data!" I'd like to remind you there's a few billion people who are not US persons, and the NSA is very interested in what they do. Because that's the NSA's job.

[JDPriestly]

35. If they aren't analyzing the data,

why are they building such a huge facility in Utah and why aren't they more open about what they are doing with our data and why do they have close to 35,000 employees? What is going on? Why don't they explain that to an open court?

The government is hiding this information from us. If it is harmless and OK and legitimate, why do they label it as "secret"?

[jeff47]

37. Because there's 7 billion people who aren't Americans.

I find the insistence that the NSA must be spying on Americans to be a very interesting form of American exceptionalism.

why are they building such a huge facility in Utah

Because there's about 7 billion people who aren't US persons. That's a lot of data.

why aren't they more open about what they are doing with our data

Well, so far the only program involving "our data" is the metadata program. Every other program that has been leaked by Snowden includes a "targeting" element, where they discard the data from US persons.

As for why they didn't reveal the metadata program earlier, presumably they hoped "bad guys" not knowing about it would prevent them from trying to obfuscate.

Secrecy is not in and of itself an indication of an illegal act.

why do they have close to 35,000 employees?

Well, one half of the NSA is tasked with protecting US government networks from attack and developing new computing technologies. The other 17,500 are tasked with spying on other countries electronically. Basically, if the spying is not using people (CIA) or satellites (NRO), then it's the NSA.

Why don't they explain that to an open court?

On what grounds would they be required to do so?

The government is hiding this information from us. If it is harmless and OK and legitimate, why do they label it as "secret"?

Because if you announce to the world how, exactly, you are spying on other countries, those other countries take action to stop that spying.

Keep in mind the NSA is not unique here. Every first- and second-world country has their own version of the NSA. For example, France got caught spying on us in the 1990s - the French government collected business secrets from Boeing and other companies, and handed them over to French companies. Then there's the breaches of Google and other Internet companies a couple years ago that was blamed on China.

There's a ton of spying and counter-spying going on all over the world. That's what they're doing. We random US persons are not all that interesting.

[JDPriestly]

47. If they want to search my data, they need to serve ME with a warrant.

Otherwise they don't need to store that data up so that someone in the future can use it for some horrible purpose or so that they can categorize and sort my information.

I favor protecting the privacy of Americans. It is our constitutional right to privacy. Maybe the Obama administration is not abusing their access to all that information, but who can protect us from some future group or individual who obtains access to it?

It is stupid and in my view unconstitutional to collect all that information.

And it is absurd to think, after the several whistleblowers who have come forward and advised us otherwise, that the government is not accessing and sorting and compiling databases of our information and pulling files on certain among us. It is absolutely naive to trust any government to that extent. It's a personal choice, but I do not want the government doing that.

I would prefer that the money be spent on encrypting our data so that NO GOVERNMENT can get that kind of access to it.

There is no good reason to collect that much information.

[jeff47]

58. It isn't your data.

It is data about you, but the data belongs to the phone company. That's what the 1979 SCOTUS ruling declared. And your phone company has already been selling it to third parties. Your privacy surrounding that data disappeared 34 years ago.

It is stupid and in my view unconstitutional to collect all that information.

And if you were the SCOTUS, that would be relevant. You aren't.

If you want to add protections to that data, you need to be lobbying Congress. Not complaining about the NSA.

And it is absurd to think, after the several whistleblowers who have come forward and advised us otherwise, that the government is not accessing and sorting and compiling databases of our information and pulling files on certain among us.

Then why have none of those whistleblowers provided any evidence of such activities? There are exactly zero leaked documents containing such activities.

I would prefer that the money be spent on encrypting our data so that NO GOVERNMENT can get that kind of access to it.

Well, you could ask the phone company to do so. After all it is their data, not yours.

If you want to change that, you need to lobby Congress, not complain about the NSA.

[reACTIONary]

52. +10 (nt)

[ConservativeDemocrat]

38. To keep a history of that data so it CAN be analyzed - **UNDER COURT ORDER**

This is blatantly obvious.

Again, the use case is: "The CIA knows this phone number was used by a militant, and either A) It is known that the militant is not a U.S. citizen, or B) the FISA courts have granted a legal warrant to search these records. Now - who made calls to that phone in the last 12 months?"

Not only utterly legal, entirely unobjectionable.

- C.D. Proud Member of the Reality Based Community

[reACTIONary]

53. +10 (nt)

[reACTIONary]

51. Yes!!! And when the government does ANYTHING to enforce the law...

... it is treating us as if we are all CRIMINALS !!1!!1 When a cop patrols the neighborhood, it virtually equates all of us with murderers, thieves, even rapists! Not just you and me, but also.... well you get the point.

Taking measures to protect the public from criminals is NOT treating the public as criminals. Taking measure to protect the public from terrorists is NOT treating the public as terrorists.

[billhicks76]

46. So If...

...the phone companies wanted to sell the texts and GPS locations of judges to criminals they put away then that would be ok? I think there are bigger issues here. And I believe this data is being used in the commission of crimes against citizens.

[reACTIONary]

54. No, it wouldn't be OK, because...

Phone companies can't sell texts and GPS locations because the telecommunication laws specifically prohibit them from doing so. Needless to say, those same laws don't prohibit them from Furthermore, this isn't relevant, it isn't a fourth amendment issue. If a magazine wants to sell its subscriber list so advertisers can send you junk mail, it is perfectly free to do so. It isn't illegal, and it isn't a constitutional issue.

[billhicks76]

56. Am I wrong?

I thought there were no laws prohibiting telecoms from doing anything anymore...the argument made above is that they own the data which I disagree with...but they do have immunity and cannot be prosecuted right?

[reACTIONary]

59. There are various laws and regulations prohibiting and restricting...

...what telecoms may and may not do with the business records and other information they collect about their customers and their activities.

Here is some summary information: https://www.cdt.org/privacy/guide/protect/laws.php

This is done under the government's power to regulate commerce, and does not, strictly speaking, fall under the fourth amendment. It isn't constitutional / fundamental law, it is positive law enacted by congress like any other law regulating consumer affairs.

This goes back to the Communications Act of 1934. The act of 1934 was amended by the Cable Communications Policy Act of 1984, The Electronic Communications Privacy Act (1986), Telecommunications Act (1996) Customer Proprietary Network Information (CPNI).

The Electronic Communications Privacy Act (1986) (ECPA) specifically responded to the Supreme Court's ruling in Smith v. Maryland (June 1979) that telephone toll records are not private and restricts law enforcement access to transactional information pertaining to users of electronic communication services.

The Communications Assistance for Law Enforcement Act (CALEA) and Patriot Act of 2001 narrowed but did not eliminate the CCPA privacy provisions.

Section 551 and Section 222 cover the current privacy provisions, according to the Justice Dept.

[reACTIONary]

62. BTW, Welcome to DU !!! (nt)

[jeff47]

60. It would be legal.

"OK" requires a moral judgement. It would be legal for the phone companies to sell the data to anyone who wishes to buy it.

If those buyers disclosed that they were going to use it for murder or similar, then they may run into legal trouble. If the buyers keep their mouth shut, the phone company is in the clear, legally.

Morality and the law are only loosely connected.

And I believe this data is being used in the commission of crimes against citizens.

Then why has no one managed to leak evidence of any such crimes?

Snowden's got a massive trove of documents. Did he forget to pick up the one showing such a crime?

[reACTIONary]

50. +10 (nt)

[davidlynch]

10. Lawful? Fuck Off! The fix was apparently in. As if Al Qaeda doesn't encrypt already n/t.

[jeff47]

24. I'm very interested to see how you encrypt the phone number you are dialing. (nt)

[Jefferson23]

11. Off to the SCOTUS.

K&R

[grasswire]

12. "this blunt tool only works because it collects everything"...

...XQQQme your honor. This blunt tool does NOT work, according to the evidence.

[Thinkingabout]

14. What evidence?

[grasswire]

16. Right. It's "lack of evidence"

I was referring to their testimony which shows no success.

[Thinkingabout]

28. Just because they do not give you evidence does not mean it does not exist, it simply means

the evidence was not supplied.

[jeff47]

19. "Works" as in "is legal".

Not that it has solved any crimes.

As in collecting all data means it's legal. Targeted collection may require a warrant.

Though that distinction doesn't make much sense, given the 1979 SCOTUS ruling on phone metadata. In that case, it was warrantless collection on an individual that was ruled legal, because the data belonged to the phone company and not the individual.

[iandhr]

15. One court has said it is "likely illegal"

This court has said it's legal.

Given the conflicting rulings there is a 100% chance this will wind up in front of the Supreme Court.

[eggplant]

18. Private citizens (cpmpanies) acting at the behest of the police

are de facto agents of the police. Getting someone to do your dirty work doesn't make it ok.

[jeff47]

21. Except they are not collecting the data for the government

They are collecting the data for their own private purposes (such as billing). Remove the government from the situation, and the data would still be collected.

(And sold to third parties, btw. That metadata has never been private.)

[reACTIONary]

55. Sold to third parties and subpoenaed in court - e.g. divorce proceedings. (nt)

[snot]

22. As I read it,

what we need is some kind of law protecting information that is shared with or generated by a service provider for the purpose of obtaining that provider's services.

When you make a phone call, you're not sharing the info because you want the world to know, or because you want the phone co. to be able to sell your data or give it to the gov.

The phone, the internet, water, and other essential utilities and services should be owned by the people; or if not, they should be subject to regulations that treat them as if they were.

The phone co., the water co., etc., are being paid for the service they provide, and they should be required to provide the service as long as you're providing the payment. It's a windfall to them (or anyone they deal with) that, in the process of providing that service, they also acquire valuable info about you; and they should have no right to do anything with that info except provide it back to you upon request.

I.m.h.o., the courts took a big wrong turn way back when in deciding how to deal with telephony and the like.

[mitty14u2]

36. The question has to be worded differently

telephony meta data program is lawful. This court finds it is,” he added.

he ruled on the 1979 law, the question needs to be updated and worded differently to keep up with spying by NSA.

[Thinkingabout]

27. How do you think the people owns the phone companies, etc?

[MarcoS]

32. Uh

Thanks to Ed Snowden and other American patriots, blatant constitutional violations by the NSA are established fact. Just so we're clear, this judge is claiming the same people who PAY THE SALARIES OF THESE NSA CLOWNS do not have the legal right to complain when OUR EMPLOYEES trample all over OUR Constitution.

Our courts are supposed to be the final safeguard of our rights, when they refuse to do their job the only eventuality is what happened in Germany during the 1930's. The same four magic but imaginary words added by our courts to our Fourth Amendment ("except for special circumstances&quot can (and imo will) be added to our other rights, thereby gutting our Bill of Rights. It's been 12+ years since 911 but they keep pushing for more power.

[jeff47]

39. If only there wasn't a 1979 SCOTUS precedent on this topic...

1979: SCOTUS ruled phone metadata belongs to the phone companies. Thus individuals do not have a right to privacy regarding that data.

Don't like it? You need a new law from Congress making phone metadata yours and not the phone company's.

Btw, the phone companies have been selling that metadata for a while now. It wasn't remotely close to being private before 9/11.

[ConservativeDemocrat]

41. You are not the Supreme Court...

So your pronouncements about what you believe are "blatant constitutional violations" is of no import.

- C.D. Proud Member of the Reality Based Community

[MarcoS]

48. It's our Senate's pronouncement not mine,

in the NSA's case. Even reliably braindead Pentagon shills like Feinstein were yelling at the NSA. Did DU not cover the story?

[ConservativeDemocrat]

63. They *FUND* the NSA

And further, they weren't calling it "Unconstitutional". Not to mention that it is the Supreme Court that decides these things. The GOP has been screaming that the ACA is Unconstitutional as well, with just as much (or little) legal justification.

- C.D. Proud Member of the Reality Based Community

p.s. For your edification, a "shill" is someone who pretends to be a member of an audience, but in reality is in on the act (especially when it has to do with claims of magic or psychic powers). Your use of "shill" to describe a Democratic Senator with whom you disagree is, therefore, completely silly. All you do by calling her a "shill" is betray your own ignorance.

[OilemFirchen]

43. Every one of our Constitutional rights is limited.

If you prefer "except for special circumstances", that's an appropriate, albeit limited, reading of several hundred years of court precedent.

[MarcoS]

49. 911 powers were supposed to be temporary

and I'm not claiming the American people don't have the right to voluntarily give up any or all of their rights, if doing so makes them feel more secure. But good grief, we've spent the last 12 years irradiating millions of Americans at our airports and borders, countless millions of lost productivity hours etc, meanwhile two of the three core founding members of al Qaeda (Ayman al-Zawahiri and Mullah Omar) and 911 attackers remain free as birds in Pakistan, with our government refusing to prosecute them. Or in other words we're now allowing our federal government to demand we prove our innocence to them, while they refuse to prosecute the guilty.

If anyone is even interested in saving our federal government at this point, please read the book "Terrorizing Ourselves" by CATO. What a scam.

[blkmusclmachine]

42. "Just another brick in the wall..."

[treestar]

44. It does not apply to third parties

Every company you do any business with has information on you.

[Tx4obama]

45. Kick n/t

[DCBob]

57. Looks like SCOTUS will get the case..

and I suspect they will rule it lawful as well.

[brentspeak]

64. Whole lot of personal opinion in this ruling

Not much constitutional justification, though.

How'd this guy pass law school?

[lovuian]

66. I have a question for the lawyers out there

What if this judge's phone records were in the NSA possession

doesn't that make him have to recuse himself
in fact what if all the federal judges phone records are in NSA possession

How can one judge if they are involved with the crime?