Remember When Supreme Court Rejected Review Of FISA Amendments Act, Because It Was 'Too Speculative' That Plaintiffs Were Being Monitored?

from the can-we-get-a-recount? dept

Mon, Jun 10th 2013 1:43pm — Mike Masnick

It really was just a few months ago that the Supreme Court rejected a lawsuit filed by the ACLU, seeking to find the FISA Amendments Act unconstitutional. This is part of the law that is so key to the NSA's surveillance strategy, part of which was revealed over the past few days. The key problem for the Supreme Court was that the plaintiffs didn't have standing, because it was "too speculative" to suggest that the government had monitored their communications. Specifically, the court said that the injury must be "certainly impending." From the ruling:

Yet respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. .... “The party invoking federal jurisdiction bears the burden of establishing” standing—and, at the summary judgment stage, such a party “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’”.... Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because §1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. .... Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.

The court also points out that since the FISA Court could block such an attempt, the plaintiffs would also need to show that the FISC authorized the surveillance.

...even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance

Right. So, given the now leaked documents showing that the FISA Court ordered the data on all phone calls from Verizon, and the further admission from multiple Senators that this program has been happening continuously since at least 2007, perhaps someone should be filing a lawsuit (if they haven't already), and using the latest leaks as proof of standing...

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Filed Under: faa, fisa amendments act, nsa surveillance, privacy, speculative, supreme court, surveillance

21 Comments

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Josh in CharlotteNC (profile), 10 Jun 2013 @ 12:37pm

One problem. All of the documents and information being widely reported in the press is still classified (under the theory believed by two-year-olds that also covers that when you put your hands over your eyes, you're invisible). So expect every objections that the documents cannot be used.
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Already filed!, 10 Jun 2013 @ 1:58pm

TorrentFreak already broke the story...

http://torrentfreak.com/former-u-s-prosecutor-sues-obama-and-nsa-over-prism-scandal-1306 10/
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Pardon Edward Snowden, 10 Jun 2013 @ 2:03pm

26,102 signatures already, need 100,000 for White House response...
---
https://petitions.whitehouse.gov/petition/pardon-edward-snowden/Dp03vGYD

Pardon Edward Snowden
Edward Snowden is a national hero and should be immediately issued a a full, free, and absolute pardon for any crimes he has committed or may have committed related to blowing the whistle on secret NSA surveillance programs.
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PW (profile), 10 Jun 2013 @ 2:03pm

They did!
The ACLU filed a new lawsuit: http://www.aclu.org/blog/national-security-technology-and-liberty/aclu-seeks-secret-court-opinions-a uthorizing-nsas-mass
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AG Wright (profile), 10 Jun 2013 @ 2:11pm

Pardon might not do any good if he's dead
I expect the "accident" to happen just as soon as the press coverage has died down.
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Lord binky, 10 Jun 2013 @ 2:28pm

Odd how it is 'too speculative' even though the case made it to the Supreme Court, as if that Court is given a troublesome number of trivial cases.
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FM Hilton, 10 Jun 2013 @ 2:29pm

Refile that case: maybe
Because the documents are under the classified heading, the very first thing the government is going to do is claim the "national security is at stake!" and cite the Secrets Act as a defense, even when it doesn't exist (yet).

The SC will promptly give the ACLU a regretful 'bye, it's been nice to see you again."
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Anonymous Coward, 10 Jun 2013 @ 2:38pm

let's face it, the USA justice system, legal system and government are all as fucked up as each other. all any USA company and law enforcement agency wants to do is spy on ordinary citizens. anyone that actually believes all this is being done in the name of preventing terrorism is in cloud cuckoo land. most of it is being done on the orders of the MPAA and RIAA. there isn't anything more important or more worthy of protecting than the latest movie or music release, or so it seems. considering the jail sentences being handed out (87 months inside for selling software), people being accused and sentenced through trumped up and bogus charges just to please those in the entertainment industry, did anyone expect to get fair and proper treatment from this direction? just read the story of two rapists being jailed for 1 year and two years. how does that compare to copyright infringement? thank the courts for their unbiased, unbribed (hmm) wisdom in all cases!!
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Anonymous Coward, 10 Jun 2013 @ 2:48pm

Re:
I wouldn't go so far as to say the RIAA/MPAA are big in this at all - in fact, probably not at all. The collection of "Big Data" & government would is a product of low or little oversight and greedy bastards with old-boy networks in the right places at the right times - coupled with governments that fear the internet because it empowers people and knowledge - so therefore they must control it, all of it.
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A well deserved smackdown, 10 Jun 2013 @ 3:28pm

In this Guardian editorial, Senator Rand Paul gives Obama the smackdown he so richly deserves, perfectly contrasting the Obama of a few years ago with the current Obama:

http://www.guardian.co.uk/commentisfree/2013/jun/07/nsa-verizon-surveillance-constitution? CMP=twt_gu
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horse with no name, 10 Jun 2013 @ 5:25pm

It still comes to the same thing
In the end, it still comes to the same thing. Is a collection of data willingly shared with third parties, plus other publicly available information assembled true "monitoring"? All of this scary stuff skirts around the basic and simple concept that the government was not recording conversations or otherwise privy to actual communications.

Paul Rand can join Wyman in the grandstand, self-justifying line over there. Rand has a goal of getting elected in 2016, so ANYTHING negative involving the Democrats will be blown sky high in an attempt to curry favor with the voters.
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Anonymous Coward, 10 Jun 2013 @ 8:39pm

Re: It still comes to the same thing
Why do you think that only the recording of conversations is intrusive?
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Pragmatic, 11 Jun 2013 @ 5:39am

Re: Re:
Actually it's a boondoggle for the security companies that collect and store all this data. Most of it is useless, they're just creating a mountain of haystacks to hide needles in. More work for less gain in the name of "security."
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pixelpusher220 (profile), 11 Jun 2013 @ 7:39am

Re:
Indeed, the 'national security' card would seem like the first response from the Gov on these documents.

The government sent the evidence to people being surveilled before and they still weren't allowed to use it.

Sad day for the US all around.
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pixelpusher220 (profile), 11 Jun 2013 @ 7:41am

Re:
While really really dumb, the Court original ruling on lack of standing was the right ruling based on the law.

I don't necessarily understand 'standing' or agree on it's requirement for large issues like this, but that's our legal system as it stands these days.
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RyanNerd (profile), 11 Jun 2013 @ 8:05am

Re:
Mystery Men
INVISIBLE BOY
"All my life I've been ignored by people, and finally, after years of being overlooked, I found I have the power to disappear."
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horse with no name, 11 Jun 2013 @ 8:29am

Re: Re: It still comes to the same thing
I think that data shared with a third party doesn't come with a lot of privacy protection. Smart people can collect that data and use it as they see fit, the individual pieces of data are all pretty much legal and it's all good.

Recording of the actual conversion and using that might pose a bigger problem, and even then... there are times where it is legally acceptable to do.

Basically, it's tempest in a teapot here. The actions appear both to be legal and to be even less than the scope of the law allows. But as with anything political, it's all about positioning and play. Ask Rand Paul, he's working the Wyden playbook on this one.
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pixelpusher220 (profile), 11 Jun 2013 @ 8:40am

Re: It still comes to the same thing
No, this isn't publicly available information. This is your PHONE RECORDS, which until PRISM, etc, needed a valid court order to be disclosed.

Now the 'court order' being used is 'give us all records on everyone'. If that doesn't violate the 4th amendment against unreasonable search, nothing does anymore.

Giving your data to a 3rd party is entirely different than the gov't collecting your data for posterity (whether directly or from said 3rd parties).
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John Fenderson (profile), 11 Jun 2013 @ 10:09am

Re: It still comes to the same thing
Is a collection of data willingly shared with third parties, plus other publicly available information assembled true "monitoring"?

Yes.

All of this scary stuff skirts around the basic and simple concept that the government was not recording conversations or otherwise privy to actual communications.

Even if it's true (and we have no reason to believe it is) that conversations and communication contents aren't being recorded, that doesn't mean this isn't an incredibly problematic thing. That something could be worse doesn't mean it's not a terrible thing.
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John Fenderson (profile), 11 Jun 2013 @ 10:10am

Re: Re: Re: It still comes to the same thing
You keep bring up that that the spying is legal as if that means it's OK. In my opinion, that it's legal makes it even worse.
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UOPXTA, 12 Jun 2013 @ 6:35pm

It still comes to the same thing
It seems to me that in light of the Clapper decision the ACLU faces an uphill battle relative to its suit. Although the decision was close, the court rejected a challenge to the constitutionality of government wiretaps and monitoring of citizens� telephone calls. Justice Alito noted in his opinion that groups like the ACLU who challenge FISA have no standing to bring suit because their claim of harm due to having their communications monitored by the government was �too speculative.� If the ACLU can actually demonstrate evidence of the "chilling effect" it refers to in its complaint, then perhaps the Court will consider its arguments. However, when it comes to issues of foreign diplomacy and national security, the Court has been very deferential\ to the Executive branch.
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