Forbes" NSA's Collection Of Metadata Is Screamingly Illegal

[Luminous Animal]

http://www.forbes.com/sites/jennifergranick/2014/01/24/told-ya-so-nsas-collection-of-metadata-is-screamingly-illegal/

We told you so. This week’s report from the independent Privacy and Civil Liberties Oversight Board, or PCLOB, confirms what we said back in June of last year in our New York Times Op Ed “The Criminal NSA”. The NSA’s telephone record metadata program, in which it collects the calling records of almost everyone inside the United States, is illegal. Amend that: it’s screamingly illegal. Flat out. Not even a close call. The program is also a serious threat to civil liberties, but first things first – the NSA’s massive program of telephone spying is illegal.

And it’s not illegal just because it violates the Constitution – although it does (the Fourth Amendment, specifically). The illegality of the NSA’s telephone metadata program is much clearer and even more disturbing than that. The program is illegal because no law authorizes bulk collection of phone record data. To the contrary, several laws forbid it. Understanding that the program is illegal doesn’t require fancy lawyer arguments about the frustratingly terse and vague provisions of the U.S. Constitution. It requires only that you read section 215 of the Patriot Act, which is the statute identified by the NSA as providing congressional authorization for its programs. We read it. It is surprisingly clear. And it does not authorize the NSA to do what it’s doing.

[struggle4progress]

1. In the US system, the courts determine whether a law is constitutional or not and whether a law

authorizes an action or not

In this case, the prior Administratiion sought this interpretation of 215; the judges of FISC, appointed by the Chief Justice of SCOTUS, have agreed to the interpretation; and Congress funds the activity -- so all three branches of government have endorsed and continue to endorse the interpretation

It's a screwy court IMO, because it is secret and because it does not currently involve the adverse process associated with traditional adjudication in the US, so there is considerable difficulty finding a plaintiff to appeal any judgement of FISC

We could simply abolish the FISC but that would seem to leave the law as it was in the time of Nixon, when the courts were inclined to give the President wide latitude with regard to supposed national security affairs. We could ask the current Executive to drop the current interpretation of 215, but that presents enormous political diffioculties -- and it leaves the door wide open for a future Executive to seize hold of the interpretation again and carry it further. We could try to place a different group of judges on the FISC, but that presumes either a different Chief Justice appointing them or a change in the process of appointment -- and the latter is complicated by the fact that all three branches of government buy into the current arrangement. We can ask Congress to defund the 215 activities -- but the reality is that quite substantial commercial interests may exist for the continuance of the program

So the problem faces us: what is actually doable in the near future, that might begin to institute useful changes?

[Luminous Animal]

2. Indeed! Like slavery! Totally legal despite what those pesky citizens said!

What is doable? We either defend it, like you do. Or we fight against it, like I do.

[struggle4progress]

3. You might benefit from a reading comprehension course

[Luminous Animal]

5. You might benefit from a liberal comprehension course and

notice who was on the right side of history and who was not.

I'll be proud to tell my grandchildren and my great grandchildren where I stood on every every civil and social justice issue since age 11.

You are a statist. You should proudly declare so rather than argue through obfuscation

[sabrina 1]

14. Yes, that was the Bush/Cheney argument so they stacked the courts

with as many right wing judges as they could and appointed a puppet AG, much like most dictatorships do actually, to make sure they could 'safely' violate the Constitution and then call it 'legal'. I will never forget their pretzel-like, contorted 'legal' arguments in favor of torture eg.

But that was back when Democrats claimed they supported the Rule of Law and most particularly our CIVIL RIGHTS.

I cannot believe that there is anyone, Democrat, Republican, Independent whatever who claims to live in a Democracy, who in any way tries to justify these gross violations of our rights.

[Vattel]

24. well, we could elect a president that gives a shit.

[Demeter]

4. But don't let that get in your way, Executive Branch

Don't bother putting down your comic books, Judicial branch

Don't show up for work, Congress

[Luminous Animal]

6. +1

[riderinthestorm]

7. K&R nt

[ellennelle]

8. consider the source

careful, folks; nothing in this world is black and white, including this issue.

don't get me wrong, straight up; i've been against this outlandish data gathering since the USAPATRIOT act, and since the TIA - remember that one? total information awareness? same program, different name. republicans, most especially Wepublicans, have always been masters of that trick.

consider: this piece is from forbes, hardly the bastion of liberal, progressive thought.

we must pay attention to the big picture here; please note that the RNC (just this week in their platform building) has decided to take on the NSA scandal full throttle; in other words, they're hijacking the cause. snowden be they hero, now.

really, think about this; of all the issues out there for them to do a 180 on - immigration, abortion, gay rights, healthcare rights, living wage, ...need i go on?? - this is the only one that will not freak out either their base or their corporate puppet masters.

no question; all this stuff has got to be dialed back, big time. but do you really think it's wise to just destroy the whole thing in one swell foop? given how delicate the entire enterprise of intelligence is, doncha think an approach more resembling jenga or pick-up sticks than total annihilation would be prudent?

and again, warning: consider the source here. these folks are up to no good, and they do NOT make policy decisions for the good of the country; it's all about the campaign game and winning back the reins of power to them.

[Vattel]

9. Legal surveillance will give us plenty of security.

It's not just Forbes. The PCLOB judged that the program is illegal (3 Dems on this board out-voted 2 Repubs on the issue). Obama nominated the members of this board and they were confirmed.

[ellennelle]

12. you both make and miss my point

note my stated caveat; i was against the USAPATRIOT act and the TIA. even worked to get the former rejected by city council. i remain steadfastly against these overthetop intrusions on citizens' privacy.

we all know NSA has gone waaaay beyond the pale; that's not what's at issue in my comment.

the point i was trying to make, and you may have missed, is that for anyone on the right to be taking up this banner now has nothing whatsoever to do with principle, and everything to do with calculated risk.

hence my warning to consider the source; they'll be beating this drum, so rich with ironies, from now thru both the '14 and '16 campaigns.

[El_Johns]

13. Yes, but handed to them by Ds on a silver platter. If the party would stand for its principles it

couldn't happen.

[Vattel]

23. I didn't miss that point. I agree with you there. I was responding to the rest of what you said.

You seemed to deny that the issue of bulk collection of metadata was "black and white," and you appeared to suggest that eliminating that program might be dangerous. I guess I was trying to suggest that you shouldn't be so worried about eliminating the bulk collection of phone metadata. But maybe I misunderstood you.

[sabrina 1]

16. I personally don't care WHO is opposing the violation of our Constitutional Rights. Are you saying

that rather than simply oppose violations of Civil Rights we should first look to see who is doing it? There were actually Conservatives who opposed slavery eg, should we have 'been careful' about our own opposition because of that?


Second time I've seen this appeal to 'look at the source' this week on this forum.

We need only one source, the RULE OF LAW and if the RNC or Forbes or anyone else finally gets on board with those of us who have always opposed, great. There is power in numbers. We were told that we 'couldn't do anything because the Republicans wouldn't let us'. Well, great news, now they are ready to join us. USE THEM to get rid of these egregious Bush policies we have been trying to get rid since they started.

[Luminous Animal]

20. I did consider the source. Jennifer Granick

Director of Civil Liberties, Stanford Center for Internet and Society

[sabrina 1]

27. The RNC could not hijack issues if the Dems had done what they promised to do five years ago.

I don't much care who hijacks this particular issue so long as they succeed in restoring our Constitutional Rights. Dems have had plenty of time to do so, instead they enhanced these illegal policies brought to us by one of the most criminal administrations in our history. What were they doing? Waiting for permission from the Republicans? Well now they have it, so let's get this done. It's way past time after 12 years of 'hijacking of our rights, speaking of hijacking.

[Marr]

34. Consider the argument.

If the best defense you've got is a logical fallacy, that's a problem.

http://en.wikipedia.org/wiki/Genetic_fallacy

[PowerToThePeople]

10. rec. us is no longer a bastion of freedom. n/t

[SidDithers]

11. This is not from Forbes...

it's from a blog sitting on the Forbes "sites" server.

http://www.cracked.com/blog/5-easy-ways-to-spot-b.s.-news-story-internet/

Oh, and do you still recognize Forbes as the highbrow magazine for investor types? Because guess what: Their website now hosts hundreds of unedited blogs from random, often unpaid writers off the street. Seriously, you can write for them if you want. So now any time you see a Forbes.com story and the URL has "sites/(some dude's name here)" in the middle, you're not reading a news story from professional Forbes reporters/editors, you're reading a blog post from some random person. That's why you can see a "Forbes" article claiming that a majority of scientists doubt global warming -- in reality, it's a press release written by a shill for the Heartland Institute, an oil-industry-funded group that ran billboards comparing environmentalists to serial killers.

Remember, there's a lot of money to be made from bullshit -- that traffic pays the same as any, and they're getting very good at tricking us into doing their promotional work for them.

Sid

[sabrina 1]

26. Not to worry, we DUers are pretty good at getting to the important stuff no matter

what website it appears on, thanks for your concern though.

Here's one of the most important points we need to know because every Democrat worthy of the 'd' after their names already knew this but now it is indisputable no matter which website it appears on and I hope that will be every single one that is read by even a dozen people. We will be helping with that I'm sure:

Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation.

The Board also recommends against the enactment of legislation that would merely codify the existing program or any other program that collects bulk data on such a massive scale regarding individuals with no suspected ties to terrorism or criminal activity. Moreover, the Board’s constitutional analysis should provide a message of caution, and as a policy matter, given the significant privacy and civil liberties interests at stake, if Congress seeks to provide legal authority for any new program, it should seek the least intrusive alternative and should not legislate to the outer bounds of its authority.

So obvious, unless we lost the Constitution somewhere, you wonder why they even have to say it. I'm hoping for a class action suit or many of them, from the People of the US against the NSA, the Private Security Corps who participated in this criminal activity, the Telecoms and websites etc that collaborated, and of course the US Government for gross violations of our rights.

Oh, so you don't have to go wondering where this came from, h/t to ProSense below for the link.

[Electric Monk]

31. Therefore the NSA's collection of metadata is perfectly A-OK?

[spanone]

15. i'll be curious to see what kind of legs the nsa story has when a republican is president.

i don't condone the nsa for one second, but i bet the tune will either change or just go away completely.

[sabrina 1]

17. That's why we have to move fast and get these horrific Bush policies rescinded NOW

while they are on board. We KNOW how it will be when they are in power. Sadly it seems that depending on who is in power, they tend to switch positions. So the PEOPLE have to 'make hay while the sun shines' and USE them now while they are claiming to be on board with those of us who have always opposed these Constitutional Violations of our Rights.

I'm not getting your point at all. The issue is our Civil Rights, not who or who is not using them for political purposes.

Dems need to jump at this chance NOW since for years they've told us 'we can't do anything because the Repubs won't let us'. Well finally, here is their chance to get things done once and for all.

[spanone]

18. 100% agreed

[ProSense]

19. Here's a link to the report:

<...>

There are four grounds upon which we find that the telephone records program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation as required by the statute without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) — an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything.

<...>

The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.

Without the current Section 215 program, the government would still be able to seek telephone calling records directly from communications providers through other existing legal authorities. The Board does not recommend that the government impose data retention requirements on providers in order to facilitate any system of seeking records directly from private databases.

Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation.

The Board also recommends against the enactment of legislation that would merely codify the existing program or any other program that collects bulk data on such a massive scale regarding individuals with no suspected ties to terrorism or criminal activity. Moreover, the Board’s constitutional analysis should provide a message of caution, and as a policy matter, given the significant privacy and civil liberties interests at stake, if Congress seeks to provide legal authority for any new program, it should seek the least intrusive alternative and should not legislate to the outer bounds of its authority.

<...>

However, to date the official disclosures relate almost exclusively to specific programs that had already been the subject of leaks, and we must be careful in citing these disclosures as object lessons for what additional transparency might be appropriate in the future. Any harm to national security was already done with Snowden’s illegal disclosures. Additional material has been officially disclosed to correct misperceptions caused by fragmentary leaks, but in part such disclosures were considered appropriate because it was judged that the marginal additional harm to national security would be minimal.

http://www.pclob.gov/SiteAssets/Pages/default/PCLOB-Report-on-the-Telephone-Records-Program.pdf

[sabrina 1]

22. Pretty strong language from them. They are in agreement with Bernie Sanders and Ron Wyden

and every Civil Liberties organization in the Country. Not only do they want this to stop, as Bernie also said, they want the data already collected, destroyed:

Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation.

The Board also recommends against the enactment of legislation that would merely codify the existing program or any other program that collects bulk data on such a massive scale regarding individuals with no suspected ties to terrorism or criminal activity. Moreover, the Board’s constitutional analysis should provide a message of caution, and as a policy matter, given the significant privacy and civil liberties interests at stake, if Congress seeks to provide legal authority for any new program, it should seek the least intrusive alternative and should not legislate to the outer bounds of its authority.

Thank YOU for the clarity we have needed to hear from our elected officials but have so far heard from only a few. Thanks Bernie, Snowden, Drake, Udall and all those who have stood up against these horrendous, runaway, criminal violations of our Civil Rights.

[WillyT]

21. Damn LA... Did A Search And Thought Nobody Had Posted This...

& Rec !!!

[okaawhatever]

25. The Supreme Court ruled in 1979 that bulk metadata collection was legal. Smith v. Maryland. Here's

an excellent article about Smith v. Maryland and subsequent rulings. Also remember, the one judge that ruled the practice illegal Richard Leon, is a GWB appointee who was also chief minority counsel for the October Surprise investigation and participated in the Iran-Contra investigation. That particular case was brought by the uber right wing nutjob Larry Klayman. In the two cases, Klayman names Obama individually. What Klayman's motives are are unknown, but he's not big on anyone's individual rights or civil rights so one should be skeptical of anything he does. For those unfamiliar with Klayman's activities google him. He started Judicial Watch and now has Freedom Watch. He's a rabid tea party guy and was the attorney who sued Clinton so many times. He also created stories like TrooperGate which later proved untrue. Has it occurred to anyone that Klayman might be trying to get a scotus case before this right wing court and affirm the govt's right to do what GWBush was doing the entire time he was in office? Leon had a few moments of pro-civil rights rulings especially with Gitmo, but he's not by any stretch a civil rights advocate. He seems to be more of a "go-to" guy for the Republican party. Kind of the way Roberts was before his scotus nomination.

An article about the Leon ruling, Smith v Maryland and subsequent rulings:

http://www.nytimes.com/2013/12/28/us/nsa-phone-surveillance-is-lawful-federal-judge-rules.html?pagewanted=all&_r=0

A good article that cautions on Leon's ruling and why:

http://www.truthdig.com/report/item/judge_richard_leons_anti-nsa_ruling_may_not_be_all_you_think_it_is_20131219

[sabrina 1]

28. The SC once ruled that segregation was legal too. Now it's way past time to restore the rule of law

This isn't about politicians anymore, or political parties and the polls show now that fewer and fewer Americans are associating themselves with either party. This is about OUR CONSTITUTIONAL RIGHTS, period. We elected Democrats to put a stop to all these Republican policies. Now they have a chance to call the bluff of the RNC and put together real legislation to end these abuses, right now which is already too late.

[okaawhatever]

30. Well considering we can't get the Republicans to pass a budget or extend unemployment

benefits I doubt they'll be on board for a change in national security legislation. I realize they have supposedly changed their tne in the last day or so, but I doubt it's genuine.

Also, do you really think this scotus will change anything regarding national security or civil rights? C'mon these are the folks who ruled that racism is over and the voting rights act is no longer needed. Not to mention that many of them were appointed by GWB who did much worse than Obama in the area of civil rights. I don't think it's a stretch to say that GWB wasn't a fan of the first or fourth amendment.

If any of these cases make it through scotus with the current make-up of the court I think all of us Americans will be screwed for a long time to come. I don't trust the current court or any Republican who is pushing to get a case before it.

[sabrina 1]

32. You know what I think? I think we are all tired of defeatism. I think that when the people want

something badly enough they tend to get it. We have what we have right now because too many people made the argument you just made and just went along for the ride.

But that was then, now the people are finally waking up. Republicans are hearing from their constituents also on these issues and a majority of Americans, crossing party lines, do not want the Government spying on them. And no they can't use 'terror' and '9/11' anymore. These elected officials may be just talking but I know many Republicans who USED To believe all that 'terror' stuff but now they are even more angry than those of us who never did, because they feel betrayed, lied to and are sick of it.

In recent polls, and maybe these creeps are watching the polls, only 29% of Americans now identify as Republicans. Dems not much better.

So, on several issues which they USED to be able to keep the people divided over, now a majority agrees on, Spying on the American people being one of them.

I don't care about the SC or Congress who do what they do because the people allow it to happen. I care about the PEOPLE and the power they have when they are united on an issue.

And just so you know, many, many Republicans within the Bush admin even, became very concerned about what they were up to. Drake, Comey, Binney just a few examples. Most were afraid to speak out, those few did, but times have changed and more people realize how they were used, their fears generated by the perps to get their support. No one is more angry than those who trusted and were betrayed.

You go right ahead and keep using that old excuse 'no, we can't because they won't let us'. I thought our motto was 'yes, we can whether they want us to or not'. It wasn't 'yes, we can IF they let us'!

Nothing more certain for failure, than preemptive failure, defeatism. That isn't an option.

[neverforget]

35. Bulk? Smith v Maryland was about about the police going to a telephone company

and getting information on a single person (a robber). The difference in scale is far different than a massive government surveillance program.

[LeftyMom]

36. And the data available from a landline in 1975 is a tiny fraction of that from a modern smartphone.

[AzDar]

29. K & R

[countryjake]

33. Kickety