Judge Says NSA Bulk Metadata Collection Likely Unconstitutional, Issues Injunction
from the stayed-for-appeal dept
Well, this is big, big news. Judge Richard Leon, a judge in the DC district court, has ruled that the NSA's bulk metadata collection should be stopped as violating the 4th Amendment, though he's put the ruling on hold, knowing that it will be appealed. This is the first major court ruling concerning the program, and the judge is pretty clear that it's a 4th Amendment violation even though the FISA court approved it. The case is actually two different cases brought by Larry Klayman, the founder of Freedom Watch, over the NSA's activities. Here's the key bit:The Court finds that it does... have the authority to evaluate plaintiffs' constitutional challenges to the NSA's conduct, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court ("FISC"). And after careful consideration of the parties' pleadings and supplemental pleadings, the representations made on the record at the November 18, 2013 hearings regarding these motions, and the applicable law, the Court concludes that plaintiffs have standing to challenge the constitutionality of the Government's bulk collection and querying of phone record metadata, that they have demonstrated a substantial likelihood of success on the merits of their Fourth Amendment claim, and that they will suffer irreparable harm absent preliminary injunctive relief.The ruling is worth reading, going through the legal history and details of the program. While it notes that the plaintiffs and the government (not surprisingly) explain the bulk metadata collection very differently, the court says that even if it accepts the government's explanation, it still likely violates the 4th Amendment. That's important.
Even while accepting the government's description of the system, it appears, thankfully, that Judge Leon is not being confused and suckered by the government's attempt to mislead. For example, in a footnote (21) the judge shows that he completely understands that the NSA is being exceptionally misleading when it implies that within all of that metadata, it's just looking at fewer than 300 individuals.
After stating that fewer than 300 unique identifiers met the RAS standard and were used as "seeds" to query the metadata in 2012, Ms. Shea notes that "[b]ecause the same seed identifier can be queried more than once over time, can generate multiple responsive records, and can be used to obtain contact numbers up to three 'hops' from the seed identifier, the number of metadata records responsive to such queries is substantially larger than 300, but is still a very small percentage of the total volume of metadata records." (emphasis added). The first part of this assertion is a glaring understatement, while the second is virtually meaningless when placed in context. First, as the sample numbers I have used in the text above demonstrate, it is possible to arrive at a query result in the millions within three hops while using even conservative numbers--needless to say, this is "substantially larger than 300." After all, even if the average person in the United States does not call or receive calls from 100 unique phone numbers in one year, what about over a five-year period? And second, it belabors the obvious to note that even a few million phone numbers is "a very small percentage of the total volume of metadata records" if the Government has collected metadata records on hundreds of millions of phone numbers.Judge Leon is also well aware of the newly declassified rulings from FISC judges Walton and Bates detailing regular and drastic non-compliance by the NSA. While Judge Leon does admit to lacking jurisdiction over claims that the program violates the Administrative Procedures Act, it's the constitutional questions that are the big ones, and he does not shy away there. He notes that the FISA law does not include an expressed right of judicial review -- but neither does it bar it. And, since Congress "should not be able to cut off a citizen's right to judicial review of... Government action simply because it intended for conduct to remain secret," he finds that the court has the authority to rule on the constitutional issues.
But it's also easy to imagine the spiderweb-like reach of the three-hop search growing exponentially and capturing even higher numbers of phone numbers. Suppose, for instance, that there is a person living in New York City who has a phone number that meets the RAS standard and is approved as a "seed." And suppose this person, who may or may not actually be associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in my example. But now suppose that one of the numbers he calls is his neighborhood Domino's Pizza shop. The Court won't hazard a guess as to how many different phone numbers might dial a given Domino's Pizza outlet in New York City in a five-year period, but to take a page from the Government's book of understatement, it's "substantially larger" than the 100 in the second hop of my example, and would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop.
On the question of standing (where the government often wins since individuals can't prove they've been spied on), the court sides with the plaintiffs -- noting that there's strong evidence to suggest their info has, in fact, been collected.
First, as to the collection, the Supreme Court decided Clapper just months before the June 2013 news reports revealed the existence and scope of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention.... In addition, the Government has declassified and authenticated an April 25, 2013 FISC Order signed by Judge Vinson, which confirms that the NSA has indeed collected metadata from Verizon.Judge Leon further mocks the Government's attempts to argue no standing, noting that their own arguments appear to contradict themselves:
Straining mightily to find a reason that plaintiffs nonetheless lack standing to challenge the metadata collection, the Government argues that Judge Vinson's order names only Verizon Business Network Services ("VBNS") as the recipient of the order, whereas plaintiffs claim to be Verizon Wireless subscribers. The Government obviously wants me to infer that the NSA may not have collected records from Verizon Wireless (or perhaps any other non-VBNS entity, such as AT&T and Sprint). Curiously, the Government makes this argument at the same time it is describing in its pleadings a bulk metadata collection program that can function only because it "creates an historical repository that permits retrospective analysis of terrorist-related communications across multiple telecommunications networks, and that can be immediately accessed as new terrorist-associated telephone identifiers come to light."In terms of the actual constitutional analysis, Judge Leon takes on directly the issue of metadata collection in Smith v. Maryland, the key case that the NSA and its defenders repeatedly rely on to insist that there is no 4th Amendment rights in information stored by third parties. Judge Leon notes that issue here is very different.
[....] Put simply, the Government wants it both ways. Virtually all of the Government's briefs and arguments to this Court explain how the Government has acted in good faith to create a comprehensive metadata database that serves as a potentially valuable tool in combating terrorism--in which case the NSA must have collected metadata from Verizon Wireless, the single largest wireless carrier in the United States, as well as AT&T and Sprint, the second and third-largest carriers.... Yet in one footnote, the Government asks me to find that plaintiffs lack standing based on the theoretical possibility that the NSA has collected a universe of metadata so incomplete that the program could not possibly serve its putative function. Candor of this type defies common sense and does not inspire confidence!
The question before me is not the same question that the Supreme Court confronted in Smith. To say the least, "whether the installation and use of a pen register constitutes a 'search' within the meaning of the Fourth Amendment," ... -- under the circumstances addressed and contemplated in that case--is a far cry from the issue in this case.From there, he relies on the US v. Jones case, which we've discussed extensively as well, in which the court found that attaching a GPS device to a car could be a 4th Amendment violation. He notes there that the court similarly looked at the differences in that case as compared to a previous precedent, and notes that the same situation likely applies here, vis-a-vis comparisons to Smith:
Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances--the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies--become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.
For the many reasons discussed below, I am convinced that the surveillance program before me is so different from a simple pen register that Smith is of little value in assessing whether the Bulk Telephony Metadata Program constitutes a Fourth Amendment search. To the contrary, for the following reasons, I believe that bulk telephony metadata collection and analysis almost certainly does violate a reasonable expectation of privacy.He then goes into a detailed and thorough dismantling of Smith and why it clearly doesn't apply to this program -- noting how Smith was a very limited data collection, rather than a "collect it all" process. He even refers to the current program as "Orwellian." Furthermore, he implicates the close relationship between the NSA and the telcos, noting that this is entirely different from Smith, where police made a specific request to the telcos to turn over specific information -- rather than the telcos automatically handing over all info for the NSA to keep.
It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the Government.Finally, he points out that the amount of metadata in question is significantly more detailed and revealing than what was captured in the Smith case:
...the ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people's lives.... Put simply, people in 2013 have an entirely different relationship with phones than they did thirty-four years ago.In this, it appears that Judge Leon was convinced by Ed Felten's declaration which, as we noted, went into great detail about how much metadata could reveal about a person today.
In the end, he says that Smith is simply the wrong case:
In sum, the Smith pen register and ongoing NSA Bulk Telephony Metadata Program have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.... As I said at the outset, the question before me is not whether Smith answers the question of whether people can have a reasonable expectation of privacy in telephony metadata under all circumstances. Rather, the question that I will ultimately have to answer when I reach the merits of this case someday is whether people have a reasonable expectation of privacy that is violated when the Government, without any basis whatsoever to suspect them of any wrongdoing, collects and stores for five years their telephony metadata for purposes of subjecting it to high-tech querying and analysis without any case-by-case judicial approval.Finally, in looking at the government's insistence that the program is necessary, Judge Leon is not convinced. He notes examples of them saying it can help them do their job faster, but none of it is actually stopping an attack. In fact, he notes that for all the talk of doing the job faster, there's not been a single shred of evidence presented that it helped stop an imminent attack, where that kind of speed would matter. In fact, he notes, "none of the three 'recent examples' cited by the Government [for the need for this program] involved any apparent urgency." In short, Judge Leon is calling the government's bluff. Their only reason for needing the program is the speed it provides, but then they present no evidence of any cases where that speed was important.
Thus, the end result is an injunction against the metadata collection, but recognizing the inevitable appeal, that injunction is stayed pending appeal. This is a very good decision, but this is just the beginning.
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Filed Under: 4th amendment, bulk metadata, larry klayman, metadata, nsa, patriot act, richard leon, section 215, smith v. maryland, standing, surveillance
Reader Comments
The First Word
“conditioned to accept abuse
the footnote on page 55 has a great thought:It says that if we lack an expectation of privacy of our cell phone data, it's probably due to conditioning caused by living in totalitarian conditions.
I'd like to see that point applied to the current email rules.
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Finally!
BTW, Mike, you left the italics tag on.
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Halleulajah! A First Win!
It's beginning to unravel for the NSA. Their past is creeping up with them and will haunt them for the rest of this case, because if a judge can see through their veils, everyone else should too.
Thank goodness he was brave enough to stand up to them, when nobody else would-including the FISA court.
After all, it only takes 1 person to change history.
It will be interesting to see how the government presents their appeal. It will be limited in scope, I bet, because they're already in choppy water with this judge. Bet he won't put up with their antics of "national security is at risk!" or even better: "the terrorists will win if we don't do this!"
We should all get popcorn. It's going to be a bumpy flight.
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Re: Halleulajah! A First Win!
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Re: Re: Halleulajah! A First Win!
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Finally
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Don't count your injunctions just yet, kids. This may be more theater.
Google's ability to target you for advertising is EXACTLY what NSA needs to target you as political dissident, NOT coincidentally.
08:06:08[j-37-8]
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Re: Don't count your injunctions just yet, kids. This may be more theater.
auto_click(REPORT);
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Re: Re: Don't count your injunctions just yet, kids. This may be more theater.
Stinkin pirate freetard.
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Odds this ruling is upheld by the higher courts?
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Re: Odds this ruling is upheld by the higher courts?
It's not crazy to think the Supreme Court will get this right... but it's certainly no slam dunk.
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Re: Re: Odds this ruling is upheld by the higher courts?
It's not crazy to think the Supreme Court will get this right... but it's certainly no slam dunk.
I don't really see how the logic of Jones, which was about GPS location data, fits in with telephony metadata, which does not include location data. I think this judge will be overturned by the Court of Appeals. I don't agree that Smith is distinguishable--there is simply no reasonable expectation of privacy in the telephony metadata you turn over to your phone company.
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Re: Re: Re: Odds this ruling is upheld by the higher courts?
Um, there absolutely is a reasonable expectation of privacy for phone metadata. If I called up your phone company and asked for your phone metadata they wouldn't give it to me. Why not? Because who you call, and when you called them, and for how long is private information. This should be common sense. If you call a phone sex line would you assume that your mother should be able to know? My guess is "unlikely."
We assume that phone calls( including the fact that the call exists), email, texts, etc. are private. Heck, you know the main reason Facebook beat out Myspace? It certainly wasn't ease of use or features...it was the privacy settings. Myspace was pretty much open to everyone, and anyone could see all your info. Facebook had overly-restrictive settings that prevented you from finding someone even had a page if they didn't want you to. This was the biggest difference; in virtually every other way Myspace was superior.
Try going to someone's Facebook page and giving them a call. You probably can't. Why? Because their phone number is hidden to all but their close friends. Again, why? Reasonable expectation of privacy.
The U.S. has a strong belief if privacy, at least in the eyes of the general public. We close the door to our rooms, we have closed stalls in the bathroom, we talk to close friends about certain things that we wouldn't talk to our boss about. It's not just the people with "something to hide" that desire privacy; it's everyone.
Just because it's privacy "on a computer" doesn't suddenly make it something new (and...patentable?). We absolutely have a reasonable expectation of privacy on our computer systems whether they're hooked into a company or not just as you have a reasonable expectation that a bank isn't going to give all your money away just becaues you gave it to them.
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Re: Re: Re: Re: Odds this ruling is upheld by the higher courts?
I think the simple fact remains. When I make a phone call, I am necessarily telling the phone company what number I'm dialing so that they can connect the call for me. Once I tell a third party something, there is always the chance that they are going to turn and tell someone else. It's simply not reasonable to (1) tell somebody else something, and (2) then think that they will not tell anybody else what you said. If you and I are best friends, and you tell me of some crime you committed, I can turn around and tell the police what you said. Even though, subjectively, you had every reason to think that I wouldn't tell anyone, objectively, your belief was not reasonable. It's not objectively reasonable to give information to your phone company and then expect that they won't turn it over to law enforcement. I know you disagree, but there's like three decades of precedent backing this up--Judge Leon's opinion notwithstanding.
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Re: Re: Re: Re: Odds this ruling is upheld by the higher courts?
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Re: Re: Re: Re: Re: Odds this ruling is upheld by the higher courts?
Facecrook's "privacy settings" &mdash whatever they are — are fine within the context of Facecrook itself...
People who care about their privacy ("settings" or otherwise) don't (get) use(d by) Farcebook; we put its domains* in our HOSTS files and then wash our hands.
*facecrook.con
*farcebook.con
*fb-track-you-in-your-sleep.com
*fb-creepy-ex-stalker.com
*fuckerberg-suck .me
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Just sayin'.
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Go Judge Leon
He must have taken the court transcripts back to his office and done a line by line comparison to actually trap all of the instances of spook lawyer double-speak. The small number of 300 but with 3-hop expansion, need for speed but no need for speed, no standing - because...
My only thought is that I hope he is extra squeaky clean because they are going to be hauling out the big FUD mud now to try to make him look dirty and be removed from the case (or from life if he is too good).
Judge if you see or hear a drone over head, run for very good cover in a very big crowd.
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Re: Go Judge Leon
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Re: Go Judge Leon
You think having innocent by-standers around will protect him or anyone else?
Psst!
Want to buy a picture of an xbox for $500?
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When do present-day circumstances--the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies--become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.
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Re:
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Re: Re:
Once the Supreme Court has spoken, that might be another story, but it's far from certain he'd agree even then - and we might not be as interested in him, specifically, by that point.
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Learn some law, Blue
In any federal case there are certain steps that follow after a ruling from a federal bench.
1. Order is granted, and implementation is immediate. No appeal is likely or the appeal was the last one possible from either party.
2. Order is stayed due to the fact that the other party will have an appeal to the order and injunction within 60 days.
Guess what? The government lost the round, so they get the appeal rights. They will appeal, and then the court will rule on that one-and then they will either deny it or move to have it reconsidered or kicked upstairs to the Supreme Court.
It takes time to do this kind of stuff, and it's of course long and tedious, not to mention very expensive.
But should the government lose this next appeal, the case will undoubtedly be sent to the Supreme Court. Guaranteed.
Then we'll see some very heavy ammunition, with lots of 'amici' briefs on file in support for the plaintiffs.
It's certain to become one of the first cases the Supreme Court will hear next fall.
It's going to be about 2 more years before we get a definitive answer to the question of whether or not the NSA is illegally collecting metadata, and it will be the final one, which will probably be end of the program.
Or so I hope.
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Re: Learn some law, Blue
It's really sad it's taken so long to challenge the constitutionality of said programs. I'd like to hope it's a slightly faster process than this, but I'm not familiar with the timetables here, so you probably know better than I do.
"...and it will be the final one, which will probably be end of the program."
And start of a brand new one.... It's sad to think about, but the NSA will likely keep the data, their jobs, funding, and everything else and get nothing more than a court order to stop. All this for abusing the rights of their own citizens for years and years while lying about it and hiding it from them. God bless America..... SIGH.
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Re: Re: Learn some law, Blue
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Re: Re: Re: Learn some law, Blue
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Re: Learn some law, Blue
This is a whack-a-mole game. The only way to stop the NSA is to remove their funding. Particularly the funding for the data processing and storage facilities that only make sense in the context of unconstitutionally broad violations of human rights.
Courts declaring particular programs of the NSA unconstitutional will achieve nothing. As long as they are not disbanded, they will continue with their crimes under "different programs" unabated.
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A last hope
Decisions like this make me hope our freedoms can be reestablished.
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As if it matters
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Re: As if it matters
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automated analysis
He had a new thought that hadn't occurred to me. To do even 1-hop analysis of a foreign number, every phone number in the database must be analyzed to see if it interacted with the foreign number (see page 40) .
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Re: automated analysis
(page 41)
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Re: automated analysis
How can a computer know if something matched or not if it never bothers to compare stuff?
The entire "we only search X number of records" the NSA & its defenders spout off never made sense to me from the start. It was clearly a lie they hoped no programmer w/ political influence would ever see.
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Re: Re: automated analysis
Dude. How about a simple binary search? Does a simple binary search look at every record? Just a simple binary search that anyone should be able to code up in a few minutes in your sleep, hungover and still drunk, in your sleep.
Didja ever hear of indexes? So what do you think about a binary search tree? You think that's a better structure when the data can be held entirely in core? How about a B-tree then?
If you think sorted indexes are far out, then I've got a concept that'll really blow your mind… here, try some hash.
As a matter of fact, I'll go so far as to say that the primary focus in database systems design is avoiding looking at the whole database for each query. Certainly the primary goal in query planning is looking at as little of the data as possible.
Really, dude.
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Re: Re: Re: automated analysis
One can argue if that constitute entire database search. If you argue that search is only done at the time an analyst type in a query, for one record and receive the immediate result (0 hop), you're most likely right, algorithms are devised to minimize entire database search. But then again there are threshold number of seeds and hops that can make the search look at the entire database.
However, if one is to consider the entire lifetime of a database, then it can be said that the entire database is queried. A search is nothing more than comparing a myriad number of items against a sample item to get a match. Wouldn't the initial construction of the data structure of a database satisfy that definition?
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conditioned to accept abuse
It says that if we lack an expectation of privacy of our cell phone data, it's probably due to conditioning caused by living in totalitarian conditions.
I'd like to see that point applied to the current email rules.
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Re: conditioned to accept abuse
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government contractors & corporate sovereignty
The judge probably just made their list.
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Public: 1
But that one really counts! This judge has my thanks and deep respect. Way to stand up and write a perfect response to bullshit. I think that based on the validity of the man, the actual research(yeah I am surprised), and the words used this is a most important victory.
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Standing
"the Supreme Court decided Clapper just months before the June 2013 news reports revealed the existence and scope of certain NSA surveillance activities. Thus, whereas the plaintiffs in Clapper could only speculate as to whether they would be surveilled at all, plaintiffs in this case can point to strong evidence that, as Verizon customers, their telephony metadata has been collected for the last seven years (and stored for the last five) and will continue to be collected barring judicial or legislative intervention"
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Resetting the Game Board
"When do present-day circumstances--the evolutions in the Government's surveillance capabilities, citizens' phone habits, and the relationship between the NSA and telecom companies--become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now."
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Judges and opinions
Unfortunately, there is a very large black line drawn about judges publicly commenting on cases they've ruled on, active and inactive: they don't do it, ever.
You'll never see him discussing the ruling or the case outside of the courtroom-to do so would be to invite all kinds of trouble-including the dismissal of all claims and the lawsuit. We don't want that..so we'll just have to be happy he's writing opinions and issuing rulings.
Which he is very good at, from what I can tell. 58 pages of federal smackdown is wondrous to behold, and he does it with aplomb.
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Regarding the elephant in the room...
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Re: Regarding the elephant in the room...
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Re: Regarding the elephant in the room...
Our Constitution is the core of our legal system. It set up the Government. The Government shouldn't be able to get out of this.
This was the entire reason the Fourth Amendment was created in the first place (our Founders must have known a Psychic).
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Re:
Perhaps one needs to send the vermin exterminators to the Oval Office first before letting a good man enter and get infected.
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The outcome on appeal is anything but certain, with binding precedent appearing to favor the NSA. The court's location in DC raises numerous issues that will put plaintiff's counsel to the test as he/she attempts to convince the DC Court of Appeals that the decision below is correct.
The NSA's expected appeal is certainly not a slam dunk for reversal, but then again the same can be said of the plaintiffs with respect to the decision below being upheld.
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Re:
That is the insidious nature of the bulk data collection.
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Re:
That's not an interesting dichotomy. That's a strawman presented by someone who appears to understand nothing. A single IP address is a single datapoint on a single situation, which is specifically designated to a node, not an end point and could reference numerous people. A collection of ALL metadata on phone records is something entirely different.
I would think someone of your claimed brilliance and experience would know the difference. The fact that you do not understand such elementary concepts reminds me, yet again, that for all your superiority and talking down to us peons, you really aren't very knowledgeable about these things.
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That many data points which are meaningless individually can be grouped to becomes incredibly revealing as a whole isn't a difficult concept. The courts even get it -- they accept the governments "mosaic" theory for why individually innocuous things can be redacted for national security reasons. It's the exact same principle.
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What I want to see
If it gets that far-because it's going to be first in the DC Court of Appeals, which is rather notorious for being viewed as biased towards the government.
I surely hope and pray that the other cases come forward faster and get rulings, so as to perhaps in the end all being combined into one massive bomb set to go off in the Supreme Court.
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CNN makes it about Larry Klayman
I'm no fan of Klayman's and he attacked both Lemon and Toobin, but Lemon, a supposed "professional" should have been able to stay on topic (the fact the GOVT IS SPYING ON US and the ruling facing Obama's Admin), unless going after Klayman was the topic...
http://www.youtube.com/watch?v=xa8BWK9dhbU
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