US Supreme Court declines to hear NSA spying complaint:
America's Supreme Court has declined to hear Wikimedia Foundation's challenge of the NSA's "upstream" surveillance program, effectively exempting the agency's data collection from review as a state secret.
In 2015, two years after Edward Snowden's public disclosures about the NSA's network surveillance, Wikimedia Foundation, with eight other organizations and the help of the American Civil Liberties Union, sued the NSA and the US Justice Department alleging the bulk gathering of internet traffic violated Fourth Amendment protection against unreasonable search and seizure.
The NSA program is alleged to involve capturing all data entering and leaving the US via internet backbones. Captured packets get reassembled into transactions that get filtered for the presence of "selectors" (e.g., email addresses) associated with surveillance targets and those transactions then get ingested into a system for review.
The Wikimedia Foundation et al. argued that the NSA's warrantless surveillance program, which the government contends is authorized under Section 702 of the Foreign Intelligence Surveillance Act, is unlawful because it permits surveillance of US persons' international communications without a warrant or the approval of a public court, provided targeted individuals are located outside the US, but the kicker is that they can backtrace calls to associates who may have committed no crime.
Shortly after reports based on Snowden's leaked documents revived interest in network data security, the US Director of National Intelligence published a letter [PDF] that asserts NSA surveillance operates lawfully. "Collection of intelligence information under Section 702 is subject to an extensive oversight regime, incorporating reviews by the Executive, Legislative and Judicial branches," the DNI letter said.
US courts, however, have declined to hear challenges to that claim.
[...] "The Supreme Court's refusal to grant our petition strikes a blow against an individual's right to privacy and freedom of expression — two cornerstones of our society and the building blocks of Wikipedia," said James Buatti, legal director at the Wikimedia Foundation, in a statement. "We will continue to champion everyone's right to free knowledge, and urge Congress to take on the issue of mass surveillance as it evaluates whether to reauthorize Section 702 later this year."
Section 702 will expire at the end of 2023 if not renewed by Congress, a matter currently under fervent discussion.
"Ten years ago, the government defended unconstitutional surveillance by saying it was necessary to 'balance' your right to liberty against their preference for security," said Edward Snowden, now a citizen of Russia, via Twitter. "The courts at the time viewed that skeptically. Under the new [Supreme] Court, lawless spying is no longer questioned."
(Score: 5, Interesting) by weirsbaski on Saturday February 25, @09:32AM (9 children)
I've read examples of this in other cases also- it's like you don't have the rights exactly as laid out in the U.S. constitution- you have the rights that the judges say you have. The constitution is more like a strong suggestion...
(Score: 5, Insightful) by driverless on Saturday February 25, @10:16AM
ITYM:
Particularly when you invoke the magical backdoor password "national security".
(Score: 4, Insightful) by RamiK on Saturday February 25, @12:56PM (3 children)
Pretty much. Basically, the U.S. constitution is what all three branches make of it. And since Section 702 is a state secrets [wikipedia.org] program framework that maintains the checks & balances via "Executive, Legislative and Judicial branches" review panels and has been running under both parties, the supreme can, and does, argue that it's all within the norms of what distinguishes a republic from a democracy: It's sufficient to inform the public's representatives and the branches instead of the public as a whole.
To be fair, the whole thing goes back to the fundamental class struggle issues at the heart of how the US is put together so it's not entirely incorrect for the supreme to leave it up to the legislator.
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(Score: 1, Insightful) by Anonymous Coward on Saturday February 25, @03:09PM
The whole "decline to hear" thing just reeks of Royalty. I hope this comes back and bites the arrogant asses on their asses.
(Score: 2) by RS3 on Saturday February 25, @05:19PM
I agree. Please correct me if I'm wrong, but when the US was founded, there were no political parties?
Not sure which came first, but IMHO political parties encourage division. People, by very nature, tend to cling to a group ("herding"), which prevents us (the people) from having a unified voice. Even when we do have a very large bipartisan majority, the too many struggles dilute and diminish the voice of the people.
The Constitution now guarantees we can be heard in a court of law, but nobody's enforcing it. Clever word trickery allows them to interpret the Constitution and do whatever they feel like, so Congress need to pass a law- Constitutional Amendment, preventing courts from refusing to hear a case.
(Score: 2) by JoeMerchant on Saturday February 25, @09:17PM
"If you choose not to decide, you still have made a choice!"
Non enforcement by the executive branch is another very powerful choice, frequently exercised.
Україна досі не є частиною Росії Слава Україні🌻 https://news.stanford.edu/2023/02/17/will-russia-ukraine-war-end
(Score: 3, Insightful) by RS3 on Saturday February 25, @05:06PM (1 child)
US Constitution? Ha, I laugh in your general direction.
Sadly it's human nature to desire some degree of power and control. Much more sadly it's a very strong force in too many people. They're drunk on power and control to the point that some commit murder, their brains addled by the feeling of power and control, and their morals and ethics out the window because they're convinced they're defending the country (or whatever fantasy they're in).
The problem is We the People have become too passive and trusting that government at all levels will do the right thing.
The US Constitution and original structure sought to keep this in check ("checks and balances"), but over the years various situations have caused the govt., en masse, to "temporarily" subvert those checks and balances. This became especially true when they started and waged the "drug wars", and sickeningly true after "9/11" (2001).
I doubt the Founding Fathers (and mothers) envisioned how powerful the Supreme Court would become.
Refusing to hear a case is in itself an abomination of the Constitution and the whole judicial process: it's a decision against someone before they're allowed to ever argue their case. It's another step away from the greatness the US once was, and moving toward totalitarian / dictatorship, people having no rights.
I strongly support a Constitutional Amendment that would end the practice of courts refusing to hear a case.
Woe be onto you if you live within 100 miles of a US border: https://www.aclu.org/other/constitution-100-mile-border-zone [aclu.org]
(Score: 0) by Anonymous Coward on Saturday February 25, @05:47PM
The legal system needs to clean up its own house. I hope their ears burn when they hear the "greatest" legal minds in the country spout easily disproven nonsense, and worse when they overturn detailed, sophisticated, evidence-based reasoning with shit like "egregiously wrong". As in, the Roe-Wade decision was "egregiously wrong". The fuck it was. Argue your case so that We The People can trust your decision-making. This ain't about YOU, you fuck. YOUR royal prerogative. No, the Constitution is about US and protecting US from authoritarian rule in positions of power, i.e. you. That's YOU in this discussion - the one under suspicion.
(Score: 2) by aafcac on Saturday February 25, @09:28PM (1 child)
Ever since the Madison v. marbury decision that's a power of the court. The problem is that we've collectively decided to go along with it no matter how nuts the decisions are. Qualified immunity and a complete refusal to enforce the constitution in places like gitmo and near the borders because the justices are too nutless to handle the consequences of it.
(Score: 0) by Anonymous Coward on Tuesday February 28, @07:57PM
> too nutless
Or biased. I refer you to the Federalist Society, Yale, Harvard and any number of self-stroking institutions that have become corrupted by power.
(Score: 2, Insightful) by Runaway1956 on Saturday February 25, @12:26PM (2 children)
We're the NSA, and anything we do is lawful, because we own the lawmakers, and we own the judges, and we own enforcement! Our surveillance pulls in everyone! What, you thought a congressman wouldn't have anything embarrassing in his life? We own them! Supreme Court justices? Yep, we owned each of them before they became justices. No one escapes the Eye of Sauron!
Abortion is the number one killed of children in the United States.
(Score: 0) by Anonymous Coward on Saturday February 25, @03:07PM
Fear not citizen, oppressive bureaucracies could not happen here. In fact they never happen anywhere. Enjoy inflation? Here, have some more. And Top Gun 2 to entertain you. The authorities have it all under control. Congratulations for being free.
(Score: 2) by RamiK on Saturday February 25, @10:49PM
If it only was just the one eye: https://www.justsecurity.org/85068/the-year-of-section-702-reform-part-i-backdoor-searches [justsecurity.org]
https://scheerpost.com/2023/02/03/revealed-sweden-destroyed-a-substantial-part-of-its-documents-on-julian-assange/ [scheerpost.com]
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(Score: 2) by Spook brat on Monday February 27, @07:01PM (2 children)
I once had an NSA spook try to explain to me that, according to the Agency, intelligence isn't "collected" until an analyst requests it from the database via a targeted search.
They were somewhat taken back when I called BS on that, and explained that when the US Army does intelligence work, it is considered "collected" as soon as it is uploaded into a database and available for search by an analyst. My arguments regarding chilling effect on 1st amendment freedom of expression caused by speculative mass collection also fell on deaf ears.
Since the courts and congressional oversight seem to be supporting them in their inventive definition, that's going to be how they operate for the foreseeable future. I'm disappointed.
Travel the galaxy! Meet fascinating life forms... And kill them [schlockmercenary.com]
(Score: 3, Touché) by janrinok on Tuesday February 28, @06:40AM (1 child)
Intelligence isn't collected. Information is collected. Until it is analysed it isn't intelligence.
Knowing that an event has happened is information (e.g. troop movement, political decision, discovery of an economic game-changer). Until you have considered it and can answer questions such as why?, how?, or so what?, for example, it remains simply a fact. That is what the NSA spook was trying to explain. The analysis job is done by analysts, not by the collectors - although the NSA and other organisations may have both but their roles are different.
(Score: 2) by Spook brat on Tuesday February 28, @02:06PM
Nit correctly picked, well done. I tossed you a mod point for that. Let me clarify:
As a collector, my organization recognized that "collection" legally occurred once the information I had obtained was recorded in a tangible form - typically a report written, and entered into the analyst's database.[1]
My spooky friend's assertion was that, in their organization, they did not consider "collection" to have legally occurred despite the information having been scooped up and made available for analysis already. The crux of the argument was that because the mass surveillance is not targeted at a specific person (at the time of recording), that 4th amendment considerations don't attach until a filter is applied that does target a specific individual or named group. That's the legal hill they're dying on, and it appears that the FISA court judges and SCOTUS are backing them up.
This argument makes no sense to me, at all. If I wanted to bug someone's computer and cell phone with software that sends me a copy of every email they send, I would need to get a warrant before beginning the operation because it's an obvious intrusion into their privacy. When the NSA does it to the entire Internet backbone, that intrusiveness somehow isn't multiplied by 300 Million.
The courts seem to have this as a common precedent. Another practical example is surveillance of a vehicle: if I were to propose an operation where I hire a bunch of college kids to sit on street corners and tell me when a specific car passes them, it would require a warrant - it intrudes on the subject's privacy. When the city places fixed cameras at each intersection and attaches them to Automated License Plate Reader (ALPR) software, judges somehow don't conclude that the same intrusion is occurring to every traveler that enters the city.
I don't get why.
[1] From a strict 4th Amendment standpoint, if I as an agent had used intrusive (i.e. privacy-invading) investigation techniques without proper judicial oversight, then the information gained would be deemed inadmissible in court, even if I just kept it in my head. From a practical standpoint, until it's recorded so that others on my team (including the wider Intelligence community) can benefit from it, it is worthless to the point of not existing. Job's not done until you write the report.
Travel the galaxy! Meet fascinating life forms... And kill them [schlockmercenary.com]