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District Court Tosses ACLU's Lawsuit Against NSA With Very Regrettable Decision That Props Up Agency Rhetoric

from the the-court-really-shouldn't-be-a-propaganda-arm-for-the-government dept

Fri, Dec 27th 2013 3:22pm — Tim Cushing

The legal battles surrounding the constitutionality of the Section 215 bulk phone records collection are now suddenly at odds with each other. A step forward (Judge Leon's decision earlier this month finding the collection to be "likely unconstitutional") has now been matched by a step backward. Judge Pauley of the Southern District of NY has found the Section 215 program to be legal and has dismissed the ACLU's lawsuit against the government. (The ACLU is planning to appeal).

Pauley refers to the same case (Smith v. Maryland) that Judge Leon referred to in his decision, but comes to very different conclusions. Pauley's ruling is predicated on the very expansive reading of the Third Party Doctrine security, intelligence and law enforcement agencies have relied on for years. Information given voluntarily to third parties is not protected by the Fourth Amendment. This reading has allowed the NSA to collect every phone record generated in the US for the past half-decade uninterrupted and for a majority of the last 12 years.

For many people, the reality of the Third Party Doctrine didn't hit home until the Snowden leaks began. It wasn't so surprising that this sort of data harvesting was happening. Whistleblowers had been warning for years that the government was collecting data and content on a massive, worldwide scale. The real shock was that, for the most part, everything was completely legal.

Judge Pauley's decision reaffirms this status quo. The opening paragraph sets the tone and lets the reader know exactly what conclusion Pauley will arrive at 54 pages later. The opening paragraph could have been ghostwritten by the ODNI.

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

Prior to the September 11th attacks, the National Security Agency intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego,California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier. Without that identifier, NSA concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Intelligence ("FBI") of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States.

The footnote refers to the 9/11 Commission Report whose findings directly contradict this narrative. The problem was not that the information wasn't there. It was that it wasn't shared. It was the fact that the CIA lost al-Mihdhar, but rather than issue an alert or place him on a watch list, it chose to do nothing. Many things went wrong, but not having the intel wasn't the issue.

While Pauley does acknowledge that unchecked surveillance can result in diminished civil liberties, he restricts his arguments to the legality of the program in question. Whether or not the 215 program should continue should be turned over to the "other two coordinate branches" in Pauley's opinion, which makes his dismissal of the ACLU's injunction request partially a punt.

Pauley acknowledges Snowden's contribution to the national discussion on security and privacy (via "unauthorized disclosures") in the early pages of his decision but then proceeds to deliver the government's official depiction of this program as if the leaks, and everything that followed, never happened.

Pauley delivers the following assertions with apparent sincerity, ignoring evidence to the contrary.

Bulk telephony metadata collection under FISA is subject to extensive oversight by all three branches of government. It is monitored by the Department of Justice, the intelligence Community, the FISC, and Congress.

Oversight has been spotty at best, depending on who's controlling the dissemination of relevant information. Rep. Mike Rogers' tenure as the head of the House Intelligence Committee has been marked by deliberate and repeated obfuscation.

Since the initiation of the program, a number of compliance and implementation issues were discovered and self-reported by the Government to the FISC and Congress…[T]he NSA addressed these problems...

Except that FISC judge Reggie Walton found the abuse so pervasive and the NSA's interpretation of its own programs so misleading that he posited the 215 program had never adhered the court-imposed limitations. Further, he noted that proposed remedies were deployed haphazardly with a minimum of followup. This resulted in the program nearly being completely shut down in 2009. But Pauley presents the NSA's self-reporting as evidence of its trustworthiness -- and as more "evidence" that the oversight works.

Pauley buys everything the NSA claims about its program, from metadata not being a useful identifier (obviously untrue -- anyone with an internet connection can find out a great deal about someone or someones with little more than a handful of phone numbers) to a large portion of the database being untouched (which would normally call into question the necessity of having a database this large but is somehow portrayed as an indicator of the agency's restraint).

Pauley also addresses the limitations of the oversight pertaining to the Section 215 program, but again, finds nothing particularly wrong with the way information dissemination was handled.

The following year, when section 215 was again scheduled to sunset, senators were informed of an updated classified document available for their review. See Letter from Sens. Feinstein Chambliss to Colleagues (Feb. 8, 2011) (ECF No. 33-11). Apparently some Senators did review it while other Members of Congress did not. The House Intelligence Committee did not make the document available to members of the House. Dozens of House members elected in 2010 therefore never had an opportunity to review the classified document. While this is problematic, the Executive Branch did what it was required to do under the statutory scheme that Congress put in place to keep Congress informed about foreign intelligence surveillance.

No harm, no foul. The executive branch -- one of three branches charged with oversight -- did what it was supposed to, therefore a second branch's (intentional) failure to provide adequate oversight isn't an issue.

Pauley maintains that the collection is "necessarily broad" because fighting terrorism is a matter of prevention, rather than a matter of investigation. Since the NSA CAN'T know what it's looking for, it needs it all. This has proven to be a problem for the intelligence agency, as its tendency to collect as much as it can has swamped analysts in mountains of data, most of which serves absolutely no purpose. But Pauley ignores this reality while dismissing the ACLU's arguments, stating that the Section 215 collection will always be "relevant" to the NSA's security agenda.

But this is all a sideshow. The real question is whether the Section 215 collection violates the Fourth Amendment. Pauley looks at Smith v. Maryland and decides it does not, quoting Smith's assertion that a person has "no legitimate expectation of privacy in information he voluntarily turns over to third parties." The ACLU argued that the collection of metadata allows for the construction of a "rich mosaic" of information about any citizen and is much more revealing than the government will admit. Pauley dismisses the ACLU's "parade of horribles" by quoting none other than Gen. Alexander.

General Alexander's testimony on this point is clear:

[l]n the open press there's this discussion about pattern [that the Government is] out there doing pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period. We're not authorized to do it. We aren't doing it. There are no automated processes running in the background pulling together data trying to figure out networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.

Pauley also makes the claim other judges have made -- if a single instance isn't a Fourth Amendment violation then the millions of simultaneous collections don't suddenly create a Fourth Amendment issue. Rights do not spring into existence based on scope.

But even as Pauley acknowledges the possibility that the ubiquity of cellphones has created a climate much different than the one the 1979 ruling took place in, he relies on that case's previous assertion to buttress his claim that no rights are being violated by the Section 215 collection. He then goes on to relay the government's arguments that security -- and the War on Terror -- should necessarily trump all constitutional objections.

Here, the balance of the equities and the public interest tilt firmly in favor of the Government's position. "Everyone agrees that the Government's interest in combating terrorism is an urgent objective of the highest order." Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2724 (2010); see also Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation") (internal quotation marks omitted); In re: Directives [REDACTED] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, 551 F.3d 1004, 1012 (FISA Ct. Rev. 2008) ("[T]he relevant government interest-- the interest in national security--is of the highest order of magnitude").

The Constitution vests the President with Executive Power. U.S. Const. Art. ll. That power reaches its zenith when wielded to protect national security. Cf. Youngstown Sheet Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) ("When the President acts pursuant to an express or implied authorization from Congress," his actions are "supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion . . rest[s] heavily upon any who might attack it." (internal quotations omitted))...

But of all the assertions Pauley makes, this one is most incredible (and regrettable):

The effectiveness of bulk telephony metadata collection cannot be seriously disputed. Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering. Such disclosures can only educate America's enemies. Nevertheless, the Government has acknowledged several successes in Congressional testimony and in declarations that are part of the record in this case. In this Court's view, they offer ample justification.

Even those on the direct payroll of intelligence agencies have had trouble pinpointing the program's success in preventing terrorist attacks. For Pauley to claim that the "effectiveness can't be seriously disputed" is laughable. The last several months have seen many question the effectiveness of the Section 215 program and the challenges issued by the NSA's many critics have yet to be definitively answered. Pauley treats the NSA's assertions as gospel.

When he sticks to the previous readings of the Third Party Doctrine, he's on safe ground, precedent-wise. There's no need to entertain the NSA's talking points in order to simply agree with previous rulings. The issue here is that these rulings are outdated and the Third Party Doctrine needs a serious reexamination. Pauley's allowance of the government's arguments unchallenged is the real issue here. He may not be able to find where they've violated the Fourth Amendment, but he should at least be willing to attack its tepid propaganda with the same enthusiasm he showed for dismantling the ACLU's arguments. But he didn't and now the agency has another court decision that gives its ridiculous talking points more credence.

Judge Pauley's No Good Very Bad Ruling (PDF)Judge Pauley's No Good Very Bad Ruling (Text)

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Filed Under: 4th amendment, nsa, section 215, smith v. maryland, surveillance, third party doctrine, william pauley
Companies: aclu

94 Comments

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Anonymous Coward, 27 Dec 2013 @ 3:57pm

"al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded..."
Because despite the risk of terrorism and the long experience of hijackings, airlines had rejected the advice to bar access to the cockpit.

But as this is America and we don't acknowledge our stupidity, especially when we had just elected a village idiot to be president so instead we'll trample all over the one thing we hold to be dear, the constitution, and do every expensive, intrusive, pointless thing we can to hand power to unaccountable bodies and eventually end up with a secret agency run state where no one is free but as long as we get cretins shouting USA USA USA no one will notice.

At least, that's how everybody else in the world will view it.
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That Anonymous Coward (profile), 27 Dec 2013 @ 4:16pm

Have we finally gotten to the point where when someone spouts because 9/11 we can tell them to shut the hell up?

9/11 was a horrible thing, and every single freaking thing done in its name has been much more horrible. The fact people keep accepting it as an excuse for unacceptable things is very sad.
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Jason, 27 Dec 2013 @ 4:42pm

I fear the day
I fear the day when after the all the reviews, all the checks and balances, nine people finally meet and cast it in stone that the fourth amendment is no longer something a citizen of the United States is entitled.

On this day we will move so much much closer to fully being an empire governed by the rule of man and much farther from being a republic governed by the rule of law.
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arkiel (profile), 27 Dec 2013 @ 4:45pm

This barely merits coverage. No way is this going to change short of SCOTUS. The third party doctrine is a garbage exception that should be paired with the "spirit" of pen register laws to work in a way that makes sense. Furthermore, metadata is not third party. Only the ISP gets it. We need to recognize a blanket exception to alleged third party doctrine when the communication is predicated on a private contractual relationship. This reasonable expectation garbage leads to absurd results, and introducing a warrant requirement won't stop competent police work, and big data has been a big fat dud in detecting actual crime.
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Anonymous Coward, 27 Dec 2013 @ 4:57pm

Re:
"...metadata is not third party. Only the ISP gets it."

Not sure you meant to say this since an ISP is a third party.
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Anonymous Coward, 27 Dec 2013 @ 5:08pm

"The Constitution vests the President with Executive Power. U.S. Const. Art. ll. That power reaches its zenith when wielded to protect national security."

-William Pauley

We're going to have to agree to disagree, Judge Pauley. I assert that power reaches it's zenith when the President honors his oath of office, and upholds the Constitution of the United States of America.

"Those Who Sacrifice Liberty For Security Deserve Neither."

-Benjamin Franklin

The "spirit" of the Constitution doesn't get much more clean cut than that, Judge. Straight of one of the authors, himself.
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That One Guy (profile), 27 Dec 2013 @ 5:10pm

Uh, come again?
So first he says this...

'The effectiveness of bulk telephony metadata collection cannot be seriously disputed.'

And then immediately after that he says this...

'Offering examples is a dangerous stratagem for the Government because it discloses means and methods of intelligence gathering.'

So the program's success 'cannot be seriously disputed', while at the same time it's perfectly okay for the government to refuse to provide any evidence that it's actually done any good, 'because terrorists'.

How oh so convenient for them, the public, and apparently even the courts are supposed to take the word of a pack of liars at face value when they claim something is needed, as long as they utter the magic words 'because terrorists'.

On the one hand, this case cannot reach the Supreme Court soon enough, yet on the other hand I can't help but worry, as if there was ever a case the NSA/government cannot afford to go against them in recent history it would seem to be this, so you can bet they would break out all their little tricks and 'persuasions' to make sure SCOTUS doesn't rule against them.
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Anonymous, 27 Dec 2013 @ 5:12pm

1. Set up a system in which the government watches over the government.
2. Call it "checks and balances".
3. ????
4. Do anything you want! (Oh, and profit.)
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arkiel (profile), 27 Dec 2013 @ 5:13pm

Re: Re:
Sorry, I meant carrier, not ISP. The metadata your phone sends to the carrier should not fall under the third party exception, because there is no second party. Or rather, the metadata is a first-second party transmission. Stuff like phone number is obviously available to the recipient. Knowledge of your exact location may be disclosed by you, but doesn't show up on the screen when you call someone.
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That One Guy (profile), 27 Dec 2013 @ 5:24pm

Re:
Oh don't just tell them to shut up, as soon as someone tries to use 9/11 to justify yet another thing to encroach upon and destroy public rights and liberties(which is all but guaranteed anytime someone invokes 9/11), call them what they really are: terrorist sympathizer and abettor.

Remember, the entire purpose behind terrorism is to instill a sense of panic and fear in a population, in order to get them to act in a certain manner, so that said...

Anytime someone tries to invoke a sense of fear in the public, in order to pass some new law or legislation, they are doing the work of a terrorist.

Anytime someone tries to use 9/11 to keep people afraid, to justify what is being done 'to protect people', they are doing the work of a terrorist.

Anytime someone tries to claim that 'combating the terrorists' or 'protecting people from terrorists' justifies trampling all over basic constitutional rights, and the rights of the people, they are doing the work of a terrorist.

The time for subtly and 'politeness' on this matter is way past, they deserve to be called exactly what they are: sympathizers and supporters of terrorism.
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Anonymous Coward, 27 Dec 2013 @ 5:31pm

Re:
9/11 happened over twelve years ago. I'm pretty sure everyone who isn't a politician has finished grieving and moved on with their lives by now.

So the only people still saying "because 9/11" are people trying to exploit those deaths to seize power.
Therefore, I'd say that yes, we are at that point.
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Anonymous Coward, 27 Dec 2013 @ 5:31pm

So because it's effectivve it's legal?
By the judges logic, it seems that because that NSA's massive lawbreaking is 'effective' at supposedly stopping terrorists, that means all the ways it tramples on the 4th amendment don't matter, because trampling on it works at preventing something bad and scary.

In that case, the next time someone is murdered within say 25 miles of wherever Judge Pauley is, I'm sure that Judge Paulie will have no problem if the police arrest him, and everyone else who was within a 25 mile radius of the murder. Because you know, murders are terrible things, and the murderer could kill again if they aren't put behind bars. By putting everyone within a 25 mile radius of the crime in jail were guaranteeing we put the murderer behind bars and prevent farther killings!

Sure it takes away Judge Paulie's freedom by holding him and everyone else in a 25 mile radius in jail indefinitely, and it violates his rights to do so. But hey, because that heavy handed approach is extremely effective at stopping a murderer from killing again, that makes it perfectly legal!
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Anonymous Coward, 27 Dec 2013 @ 5:32pm

Re: So because it's effectivve it's legal?
Darn it, I misspelled Effective. That's what I get for not proof reading first.
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Jhana, 27 Dec 2013 @ 5:48pm

Thanks
Thank the judge that let us know that if you come up with a good enough excuse, the constitution is flexable.
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FM Hilton, 27 Dec 2013 @ 6:21pm

The flip side of the coin
Now that this court (misguided and misled as the others have been by the NSA) has ruled, of course the ACLU will appeal-and thus sets up the course for the entire caboodle to be heard in the Supreme Court.

All we need now for a real kicker is any other cases to be ruled on with two or more opposing views and it's not only going to land on the Court's doorstep, it will be howling for milk and cookies.

It's not over until the fat lady sings, and while there are no fat ladies on the SC, I'm sure they have someone there who can carry a tune.

It's going to be very interesting to see how it plays out.
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Hephaestus (profile), 27 Dec 2013 @ 6:32pm

Re:
It is strange, since snowdens revelations, on occasion I wonder, if this number I have dialed, or that email I sent could come back to haunt me if taken out of context. It seems I worry more about my own government now, than I ever have about terrorist.

If terrorism is about creating fear and worry, then the US government has become what it so wishes to defeat.
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That One Guy (profile), 27 Dec 2013 @ 6:52pm

Small correction:
'...then the US government has become what it claims it so wishes to defeat.

Keeping the populous afraid allows them to get away with all sorts of things they'd otherwise never be able to manage, and having an unofficial 'war' or two gives them even more powers, the last thing the USG and other powerful interests involved want is to 'win', as that would take away a number of the toys and privileges they currently enjoy.
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Anonymous Coward, 27 Dec 2013 @ 7:14pm

Groundwork for another Petraeus Scandal ?
Based on this ruling, what is to prevent the Third Party Doctrine from coming back to bite those who are in power now, in the style of the Petraeus Scandal?

What is to prevent Clapper or Obama from having the same fate as Petraeus?

If "Information given voluntarily to third parties is not protected by the Fourth Amendment," then why is Snowden in trouble?
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Hephaestus (profile), 27 Dec 2013 @ 7:54pm

Re: Small correction:
You are right about that. Follow the money... defense contractors, business buddies, etc
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the end, 27 Dec 2013 @ 9:08pm

you are all gone now
Obama and all of congress must be killed now, the corruption is too much. there can be no free country with these clowns acting illegally. You must all get together and kill all of the congress together with the president and then start again with a new congress and president afraid of what would happen if they ever again stop doing the will of the people. They must be held accountable for this terrorist state they are creating. kill them all now, kill them. kill them i say. do it now. kill all these lying beggars now.
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Just Sayin', 27 Dec 2013 @ 11:21pm

Good decision
Actually, this decision is sound based on the precedents that exist. As this judge points out, there is no sudden 4th amendment issue because of scale. If a single case has no 4th amendment issue, than a billion of them still won't have any.

The third party doctrine is a sound concept, and one that should not be forgotten in all of this. You may not LIKE the results, but the results do appear to be legal, if perhaps less enjoyable.

Apparently, a few people here hate when due processes runs against them!
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McGreed (profile), 28 Dec 2013 @ 1:14am

no privacy
"no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Wohoo, wait a minute, so that means that doctors, tele companies and so on can just give out information to anyone? He gave that information voluntarily. Or maybe, that paid off judge should get off the chair and start ruling according to the full facts instead of the biased vallet.
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ian waring, 28 Dec 2013 @ 2:22am

There is some technical BS in the judges comments
FWIW, every phone call at the time of 9/11 was tagged with the public caller ID (what gets shown on client devices) and the private caller ID (passed between telcos and a definitive, uneditable phone number, including the International Dialing Code). A requirement for law enforcement to trace any call of interest to source.

The BT calls database (used to model pricing plans - held in one year views) in the UK had that in place in 2000.
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ian waring, 28 Dec 2013 @ 2:26am

Re: There is some technical BS in the judges comments
Metadata included public caller ID of source, private caller ID, destination caller ID and call duration.
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Anonymous Coward, 28 Dec 2013 @ 2:54am

how can a judge have the stupidity to say that the law suit is unlawful because Congress didn't intend for anyone to find out that the NSA was spying on them? i didn't intend my wife finding out i was screwing her sister, but she did and sued me for divorce! i can see the judges face if i tried to use that in my defence!
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Peter Wakefield Sault, 28 Dec 2013 @ 3:49am

Al Kaboom = US Government
The US Government carried out 9/11 in conjunction with gangsters such as the Mafia, Mishpucka and Israel specifically for the purpose of justifying the tapping of the world's phones afterwards.

The actual purpose of the phone taps is industrial espionage.
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Peter Wakefield Sault, 28 Dec 2013 @ 3:53am

Re: Re: There is some technical BS in the judges comments
Telephone numbers are NOT "metadata". They are our secondary NAMES, which is primary data, not "metadata". Metadata would be, for example, the number of digits in a telephone number but NOT the telephone number itself.

This is just one more example of the US Government's lies.
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Anonymous Coward, 28 Dec 2013 @ 3:53am

Re: I fear the day
a citizen of the United States

Perhaps you should do a reframe.

Why accept being a citizen? A citizen is "a legally recognized subject of a state".

Being a subject is what you were under a king.

Why not be the sovereign? Or how about acting like one?
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Peter Wakefield Sault, 28 Dec 2013 @ 4:00am

Re: Re:
9/11 was not a source of grief to me but of shock and horror. I will forget it only when the true culprits, including Presidents George H.W.Bush and George W.Bush and Prime Minister Ariel Sharon have been convicted for their crimes.
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Anonymous Coward, 28 Dec 2013 @ 4:24am

Re: Re: I fear the day
"a legally recognized subject of a state".

That is of course the state's definition of a citizen. The citizen's definition of the state, on the other hand, could be "gang of robber barons who make up laws to suit themselves.".
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Lurker Keith, 28 Dec 2013 @ 5:54am

Pretenda-esk?
Reading that judge's arguments for the NSA was almost as difficult as reading something Prenda writes.

Twisting facts to suit their bias; ignoring facts known to EVERYONE; taking quotes out of context, & claiming it means the opposite of what it does; misquoting Law.

They must have all taken the same "Logic" course.

*facepalm*
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hmmmm, 28 Dec 2013 @ 6:26am

Re: Re:
maybe you should worry more about what you are doing when you do it, then you will have less reason to be concerned.

A little self control is an incredoble thing. Realizing that entering into contact with a person who might be of interest to authorities is always an issue. Eating lunch with them is the same as calling them, third party disclosure means you cant hide your actions.
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Shel10 (profile), 28 Dec 2013 @ 7:34am

NY Court & 3rd Party Data
If meta data from telephone call records is considered 3rd party information, then Google (and all others) search records are most likely considered in the same category. What's stopping the NSA from requesting this type of data?

Stating that Section 215 has a lot of watch dogs is ridiculous. The NSA comes under the Executive Branch of Government, as does the Justice Department, Treasury (IRS), and all of the other departments. The only real protection we have is the courts and our elected representatives. But, we allow the executive branch agencies to control the information provided to our representatives and justices.

We have learned a lot about our enemy operates since 9-11. Surely we can develop protections against those type of attacks without a wholesale usurpation of our basic rights as American Citizens!
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Koby (profile), 28 Dec 2013 @ 9:20am

Occam's Razor
I read most of the order, and it is a series of complex excuse-making. It attempts to confuse the simple language of the 4th amendment with pages and pages of legal interpretations. But I'm going to side with the Occam's Razor principle and point out that no matter how many incorrect judicial rulings the courts have produced, the NSA programs still violate the 4th amendment. The NSA has no probable cause to search and seize the telephone records of ordinary American citizens.
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pixelpusher220 (profile), 28 Dec 2013 @ 10:01am

Re:
No. The real story is that apparently Rudy Giuliani has kidnapped this judge and is impersonating them.

Noun verb 9/11.
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pixelpusher220 (profile), 28 Dec 2013 @ 10:03am

Re:
I have dreams of opening my own ISP & Phone company which doesn't actually log data. Imagine the possibilities :)

Or has the gov't required that ISP/telco's DO log stuff at this point?

In which case, it shouldn't be 3rd party anymore, no?
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Anonymous Coward, 28 Dec 2013 @ 10:16am

Your Freedom and Liberty
will be taken away under the guise of fighting a foreign enemy.

If you do not already know whom said it, then you deserve no freedom.
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Mike Brown (profile), 28 Dec 2013 @ 11:52am

Re: no privacy
Yeah, I don't get it either. I would assume my calling history is between me (party #1) and my phone carrier (party #2). If my carrier is party #3, who is #2? The people I call? What if I dial a wrong number? That person has not agreed to participate in a conversation, so that can't be right.

Regarding medical records--they are between me (#1) and my doctor (#2), right? I guess if my doctor is paid through my HMO, then the HMO is a third party, so I have no reasonable expectation of privacy if the snoops contact them.
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OldGeezer (profile), 28 Dec 2013 @ 1:18pm

Re: Al Kaboom = US Government
Our government has done some bad things but if you really think 9/11 was carried out by them you are ready for the tin foil hat brigade! Bet you believe we didn't land on the moon and there are alien spaceships at area 51.
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OldGeezer (profile), 28 Dec 2013 @ 1:22pm

Re: NY Court & 3rd Party Data
Do you really think they are NOT already monitoring search engines?
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pixelpusher220 (profile), 28 Dec 2013 @ 3:52pm

Re: Re: Re:
carrier and ISP are equal entities (and in a lot of cases, the exact same company!)

Third party means anybody but you or the government. So even if you're communicating directly with another person, while it's on the wire or frequency, it's 3rd party data. (Yes I know not the content - though that's likely to be made public me thinks - just the meta data about your communications)
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Anonymous, 28 Dec 2013 @ 4:48pm

Re: Re: Al Kaboom = US Government
Why do you apparently believe that 9/11 was NOT carried out by the government?

And according to Bob Lazar, the alien craft are at S4, not Area 51.
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That One Guy (profile), 28 Dec 2013 @ 4:58pm

Re: NY Court & 3rd Party Data
We have learned a lot about our enemy operates since 9-11.

Yeah, they tend to dress in expensive suits, have vested financial and political interests in perpetual fighting, spout empty rhetoric about how the mythical 'perfect safety' will be attainable with just one more law, one more program, and are deathly allergic to scrutiny and actual oversight.

Terrorist can kill you, but so can a whole number of other things, the government and powerful interests can take away your rights and freedom, all the while claiming it's 'for your own good'.

Don't know about you, but I know which I consider a bigger enemy out of the two.
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Anonymous Coward, 28 Dec 2013 @ 7:14pm

Why is Judge Pauley's decision "backward" and Judge Leon's "forward"? Certainly it cannot be that one came to one outcome looked upon here with disfavor and the other to another outcome looked upon here with favor. The courts were not trying to please any particularly constituency, but to consider the copious amount of evidence, briefs (many amicus in each), and oral arguments and then apply precedent as laid out by the Supreme Court, their respective Circuit Courts of Appeal, and their Federal District.

The insinuation that one judge "gets it" and the other does " not get it" is unwarranted.

Doubtless each decision will be appealed to the cognizant Circuit Court of Appeal, i.e., the Second Circuit for Judge Pauley and the D.C Circuit for Judge Leon. If each decision is upheld, or if each decision is reversed, then a trip to the SCOTUS is quite likely in view of a circuit split. Prediction? Judge Leon's decision has a much tougher row to hoe.
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OldGeezer (profile), 28 Dec 2013 @ 7:54pm

Re: Re: Re: Al Kaboom = US Government
So the government set explosives in the towers and recruited 19 Islamic hijackers willing to die to help the US come up with an excuse to start a war. Yeah, that's the ticket! As far as conspiracy theories go, that is about the nuttiest. Even without 9/11 Bush would have pushed his weapons of mass destruction bullshit and we would have still gone to war.

The only conspiracy I have ever really believed was the JFK assassination. It was a mob hit because they helped him get elected and he appointed Bobby attorney general and he went after the mob bosses.

A few programs I saw about the moon conspiracy almost had me going until I did some research and saw several other documentaries that debunked it. We were so afraid the Russians would get there first and set up missile bases that I could almost see some reasoning to for a conspiracy. Did they fake it? I don't think so.
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That One Guy (profile), 28 Dec 2013 @ 9:45pm

Re:
Why is Judge Pauley's decision "backward" and Judge Leon's "forward"?

Offhand I'd say because the judges looked at the technology involved, and the laws/rulings related to them, in particular the 'third party doctrine' as laid out in Smith v. Maryland in very different fashions.

Judge Leon looked at it, saw that the circumstances and technology at the time of the ruling were significantly different than what is currently in place, and basically said that things were so different, that the ruling did not apply, and judged the case on it's own merits, of which the government's side came out rather poorly.

Judge Pauley on the other hand didn't seem to see any difference in technology at all, or at least nothing important enough to note, and so applied the precedent set by Smith v. Maryland pretty much completely, utterly ignoring the massive differences between when the two cases were brought to court, and the changes that have occurred in that time.

You've also got the problem that Pauley seems to have accepted the government's version of things wholesale, even when dealing with things that are demonstrably false(9/11 didn't happen because the government 'didn't have the right tools', it happened because they screwed up using the tools they already had, and even the government's report regarding the event points this out), to the extent the ruling may as well have been ghost-written by one of the NSA's lawyers under the judge's name.
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Mike Masnick (profile), 28 Dec 2013 @ 10:09pm

Re:
Why is Judge Pauley's decision "backward" and Judge Leon's "forward"

I believe that Tim provides multiple reasons with details and backup support in this very post which you appear not to have read. Maybe you should try reading the details before asking questions like this one
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Anonymous Coward, 28 Dec 2013 @ 10:41pm

Re: Re:
I believe that if you examine each opinion each of the judges "get it" with respect to how much technology has helped advance telecommunications. What used to be laborious not very many years ago can now be done in the blink of an eye. The metadata of today is the metadata of yesteryear, but on steroids given the speed of current day data processing.

However, the fact Smith is akin to a car barreling along at 1 MPH and today that car can barrel along at 200 MPH is a fact (specifically one of scope/scale), but not the underlying legal issue, and it is legal issues that underlie the law federal district courts are bound to apply.

As metadata is being created in ever increasing amounts at ever increasing speeds, our representatives in Congress will have to address the question of whether or not the notion of "privacy" has changed within society and is in need of a tune-up. If it is felt that the historical understanding of privacy has to yield to some degree to reflect current views of privacy, then certainly Congress can place limitations via legislation circumscribing what is OK and what is NOT. I find it quite interesting that many of those calling for privacy in the context of NSA metadata collection seem to have an entirely different view of privacy in the context of social media, and especially since the information secured by the NSA pales in comparison to what so many persons are not the slightest reluctant to"feed" to sites like Facebook.

The difficulty I see with Judge Leon's opinion is that he is allowing faster data collection capability to influence his judgment on Smith as binding precedent. As a general rule this is an unwise course to follow because it requires a trial court record that is comprehensive, almost overwhelming, etc. I am not at this moment convinced that Judge Leon has presented a compelling case for ignoring the Smith case. Judge Pauley is on safe ground by deferring to the legal rule provided in Smith by the Supreme Court. Hence my comment about why I believe Judge Pauley has a tough row to hoe. This does not mean that he his decision will go down in flames, but only my belief his decision is lacking in several key respects, not the least of which is why collecting data faster than yesteryear somehow casts Smith aside as binding precedent.

Just last year we were "entertained" by Joel Tannenbaum's counsel trying to convince appellate courts that a long ago SCOTUS decision (Williams) concerning statutory damages should/must be cast aside in favor of a more enlightened view as exemplified by what has been termed the "Gore" case. Modernity notwithstanding, Gore went down in flames as the appellate courts determined and applied Williams (a SCOTUS case decided in 1919)as controlling precedent.

BTW, Judge Pauley had virtually the same information before him as did Judge Leon. If fact, it has been reported by those in attendance when the case was argued by a slew of lawyers about November 22nd, and that during the argument Judge Pauley ran both parties through the "wringer". Reports of the proceeding before Judge Pauley noted that he challenged the US Attorneys' with surprising vigor. Based upon what I have read, I believe it to be highly unlikely the DOJ bluffed its way through the case.

pale in comparison
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Anonymous Coward, 28 Dec 2013 @ 10:49pm

Re: Re:
I read both decisions, but as a lawyer and not a lay person like most of those here who write articles and those who comment on such articles. Reasonable minds may differ within the legal ranks concerning what is not and what is controlling precedent. Quite understandably lay review rarely reflects the legal analysis necessary to understand why decisions come down the way they do.
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CK20XX (profile), 29 Dec 2013 @ 12:23am

Re: Re: Re:
I read both decisions, but as a lawyer and not a lay person

That may have been your fatal flaw right there. I dunno much about law, but a lot of laymen are livid over what the NSA's been up to, and it's pretty obvious that anyone who agrees with that organization is on the wrong side of history. If you can only see this case as a lawyer and not a common person, you're essentially seeing things in a vacuum, cut off from the greater world. You need to be able to translate back and forth between legalese and layman's terms if you want to be understood and effective, especially since laymen are the biggest influence on law in the end.
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Anonymous Coward, 29 Dec 2013 @ 4:46am

"Information given voluntarily to third parties is not protected by the Fourth Amendment."

Then the ability to USE products and services should NOT be dependant on providing PERSONAL information that is NOT covered by the fourth amendment.

You are forcing people to EITHER respect their rights or give them up in order to partake in inventions of the current generation, and no doubt beyond, unless this gets nipped in the butt

If you want whats fair, you either respect the fourth in its entirety and god damn dismantle mass storage of information nsa, or you pass a "policy" that any "third parties" limiting the use of their product and services in exchange for PERSONAL information, information that would NOT be protected by the fourth, would risk "consequence", although i much prefer we get to a point where pubkic opinion replaces this role.........and im pretty sure PERSONAL targeted advertisement would be one of those "services" that would need looking into, just for instance
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Anonymous Coward, 29 Dec 2013 @ 4:54am

Re: I fear the day
Money and power dictate the world, the more you have of it, the more you can dictate.

Thats not an endorcement
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Anonymous Coward, 29 Dec 2013 @ 5:15am

Re: Re: Re: Re:
I did not express anything about my views concerning what the NSA has been collecting. My comment was solely to note that the role of our courts (as somewhat naively taught in Civics classes) is to interpret and then apply the law. Facts help inform what existing law should be applied, but even what many are convinced are egregious facts only very rarely infuriate a judge to the point he/she drops all pretense of judicial impartiality and sides with the one against whom the other "done wrong". Why? Because such a decision is almost a certain reversal, meaning that the judge, who surely has a heavy workload, will have to add the case back to the queue and start again.

The above in mind, this is why I noted that Congress will certainly take up the scope of the NSA's collection activities and engage is spirited, public debate with spirited public input to ascertain what should public policy comprise and how, if at all, it should be amended to mitigate what many here see as excesses.

My one hope is that federal court judges will resist defining public policy judicially since their appointments to the bench do not grant them that power, and instead leave what is to be done to your lay people, which under our republican form of government is vested in the Congress.
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Anonymous Coward, 29 Dec 2013 @ 9:40am

With all the NSA in the news, you're gonna love the latest from Der Spiegel.

http://www.spiegel.de/international/world/catalog-reveals-nsa-has-back-doors-for-numerous-devices-a- 940994.html
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Anonymous Coward, 29 Dec 2013 @ 10:15am

Re: Pretenda-esk?
Yes but, we typically expect that kind of windbag rhetoric from those lobbyists and con-men. That's their job, to twist facts around and claim that they were always right all along.

This is a JUDGE, this is someone who is supposed to be a pillar of law and order in our society. Immediately claiming to everyone that the ACLU and the reading of the law doesn't matter because turr-hists and 9/11. Also because of this one time this nice NSA man told him that everything is OK. So he shouldn't have to consider the LAW of the matter, just what he feels is right.

Good to see your personal opinion isn't clouding your judgement, Judge Pauley. Maybe someday you can introduce me to the circus clown who gave you your shiny robe and your big inflatable hammer.
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Jerrymiah, 29 Dec 2013 @ 12:14pm

I guess that's just another judge being paid by the NSA and the US military complex.
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Anonymous Coward, 29 Dec 2013 @ 1:42pm

This judge says we have no expectation of privacy when we voluntarily hand over our information to 3rd parties. It's not exactly "voluntary" when the US Gov mandates telcoms store "all" data for 5 years.

It's a classic catch 22. The US Gov, and Judge Pauley, both know there's no "voluntary" handing over of data, because that handing over of data is "mandatory".
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Mike Masnick (profile), 29 Dec 2013 @ 10:50pm

Re: Re: Re:
I read both decisions, but as a lawyer and not a lay person like most of those here who write articles and those who comment on such articles. Reasonable minds may differ within the legal ranks concerning what is not and what is controlling precedent. Quite understandably lay review rarely reflects the legal analysis necessary to understand why decisions come down the way they do.

Oh can the pedantic bullshit. We've been covering this stuff for years. Tim laid out the LEGAL reasons why this ruling is bullshit, and you have yet to comment on any of them. Because you can't. You come here and do the same shit every time. You shit all over our comments pretending that you're some super wise oracle because you're a lawyer.

If you have some point to make, make it, or shut the fuck up already.
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Anonymous Coward, 29 Dec 2013 @ 11:30pm

Re: Re: Re: Re:
JUST CENSORE HIM MASNICK !!!!
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Anonymous Coward, 30 Dec 2013 @ 1:46am

Re: Re: Re: There is some technical BS in the judges comments
Exactly. The NSA does search its records very specifically, using specific terms including names and phone numbers to find other names and phone numbers. It listens in on phone calls. Although part of its operations might include the analysis of metadata, the other part of its operations where it listens in to important business deals and then gives that information to third parties that are instructed to cover up the source of the information...
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btrussell (profile), 30 Dec 2013 @ 4:11am

Re: So because it's effectivve it's legal?
It will be in his best interest. We can guarantee his safety behind bars.
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Anonymous Coward, 30 Dec 2013 @ 6:29am

Re: Re: Re: Re:
Yes, you have been covering this "stuff for years", and been remarkably consistent in the clear majority of cases at demonstrating a woefully inadequate mastery of how to accurately state what the law comprises and the "why" behind a legal opinion. What you believe it should be, or grandiose and unsubstantiated statements of fact, rule the day...and in the process rile up your readership. What you believe to be a "bad" ruling by the Supreme Court or any of the lower federal courts is inevitably followed by an article (screed if you will) that the judges associated with these rulings are "clueless", "biased", "bought", "technology iliterates", etc. (you get my drift).

Using the article above in particular, the article is so cherry picked of factual observation by its author, ones that suit his purpose, with those that do not fit his narrative tossed away, that the tree from which he was cherry picking almost doubtless is completely denuded and dead.

If you truly fancy yourself an insightful student of the law, then actually learning it at one of the many fine law schools in the Bay Area would be a useful endeavor. Perhaps then you would understand why what you try to pass off here as insightful "legal analysis" isn't.

Now, run along and try to be a good boy who sticks professional matters with which you are well versed. Hint: the law and legal analysis are not such matters.
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Anonymous Coward, 30 Dec 2013 @ 6:51am

Re: Re: Re: Re:
Try a methodology such as IRAC (or any one of its many variants) to analyze cases. In law school it used to be known as "briefing cases", and serves the useful purpose of honing down material facts, identifying the specific legal issue(s)involved, previously articulated precedence that addresses the legal issue(s) before the court, etc.
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Anonymous Coward, 30 Dec 2013 @ 7:58am

Re: Good decision
Except, that it isn't the scale that makes it different. The scale only makes the harm worse. What makes it different is that in Smith, the collection was targeted where there was already a suspicion even if that suspicion wasn't used to acquire a warrant prior to collecting the information. Here, the collection is occurring indiscriminately without any suspicion of any crime. That makes it distinctly different.
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Anonymous Coward, 30 Dec 2013 @ 8:12am

Re: Re: Re: Re:
Third party isn't anybody but you and the government, it's anybody other than you and those you intend to communicate with privately.
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Just Sayin', 30 Dec 2013 @ 8:14am

Re: Occam's Razor
The problem you face is that this information isn't subject to the 4th amendment (already ruled on and passed SCOTUS), so arguing that they have no right under the 4th amendment is meaningless.

For me, your phone call is on par with driving your car to a given destination and entering a given address. There is no expectation of privacy, nor 4th amendment protection against this information being noted.

On an equal footing, it would be illegal to open a package or letter without a warrant, but in handing the sealed package over to a third party to deliver, you give up SOME confidentiality. The information on the outside of that package (ie, who you are sending it to, address, phone number, etc) is no longer protected once you hand it to a third party.

Using a phone always includes a third party, like it or not. You have to share information with them. It's no different than you taking a taxi from point A to point b, and the police then stopping the cabbie after you get our and asking where he picked you up and dropped you off. There is no expectation of privacy in that information.

Remember too: discrete does not mean "without exposure".
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Anonymous Coward, 30 Dec 2013 @ 8:31am

Re: Re: Re: Re:
Note: The Preamble of the Constitution begins with "We the PEOPLE" not "We the Lawyers." The people ultimately decide what is and is not reasonable under the Constitution. So the views of the "layman" are important. I see you are still practicing your professional elitism, AJ.
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John Fenderson (profile), 30 Dec 2013 @ 8:32am

Re: Re: Re:
maybe you should worry more about what you are doing when you do it, then you will have less reason to be concerned.

So if you don't have something to hide, you don't have anything to worry about? History demonstrates that you are incorrect.
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John Fenderson (profile), 30 Dec 2013 @ 8:34am

Re: Re:
There are laws mandating a minimal level of recordkeeping and law enforcement access when it comes to telephones, but not the internet.
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John Fenderson (profile), 30 Dec 2013 @ 8:37am

Re: Good decision
The third party doctrine is a sound concept, and one that should not be forgotten in all of this.

I disagree completely. The way third party doctrine would work in a sane world is that such data may legally be shared voluntarily by the third party, barring any contractual conditions otherwise, but the government should not be able to compel such disclosure without a warrant.

The third party doctrine as interpreted right now is deeply flawed, clearly unconstitutional, and destructive to liberty.
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Anonymous Coward, 30 Dec 2013 @ 8:37am

Re: Re: Re: Re: Re:
Pot, meet kettle. Cherry picking case references that support your position while disregarding the ones that don't is an accurate description of... well... EVERY LEGAL ARGUMENT MADE BY A LAWYER EVER.
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Anonymous Coward, 30 Dec 2013 @ 8:39am

Re: Re: Re: Re: Re:
Oops. Replied to wrong comment.
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John Fenderson (profile), 30 Dec 2013 @ 8:40am

Re: Re: Re: There is some technical BS in the judges comments
The bigger problem, in my opinion, is calling it "metadata". This implies that somehow it is less intrusive than regular data, or that snooping on it is somehow qualitatively different than listening in on phone calls or reading emails. It is not.

We need to stop parroting the word "metadata" and simply call it what it is: "data".
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Anonymous Coward, 30 Dec 2013 @ 8:46am

Re: Re: Re: Re: Re:
Ok then if SCOTUS doesn't have that power then the Third Party Doctrine doesn't actually exist as part of the law since it is only used because of a previous SCOTUS decision. Since it doesn't exist we must go back to the plain reading of the Fourth Amendment which the NSA has clearly violated.
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Anonymous Coward, 30 Dec 2013 @ 9:01am

Re: Re: Good decision
I think you may have hit on an interesting argument that could be made here. The Third Party Doctrine covers information that is VOLUNTARILY given to a 3rd party. However, when using modern communications, the user does not have a choice in whether they give this data or not to the carrier which would by contrary to the very definition of the word.
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Mike Masnick (profile), 30 Dec 2013 @ 10:28am

Re: Re: Re: Re: Re:
Now, run along and try to be a good boy who sticks professional matters with which you are well versed. Hint: the law and legal analysis are not such matters.

Funny, but multiple law professors from those very same law schools which you suggest I attend have told me the exact opposite: that Techdirt remains a fantastic source of insight into the law, and that we often have *better* analysis than those actually trained in the law.

Where do you teach? Oh, no where. Where's your legal treatise? Oh you never wrote one. Somehow I'll take the word of those legal experts, rather than a guy who likes to troll our comments anonymously pretending to be an expert, but whose only expertise appears to be in pedantically talking down to people who understand stuff better than he does.

Maybe, just maybe, you're a pedantic asshole here not because our analysis is off, but because you don't like the fact that we've called out you and your friends for their bullshit so many times.
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Peter Wakefield Sault, 30 Dec 2013 @ 10:29am

Re: Re: Al Kaboom = US Government
if you really think 9/11 was carried out by them [White House/Pentagon] you are ready for the tin foil hat brigade!

I take it you have no evidence whatsoever to support your particular belief set, whatever it might be. Hence your need to fall back on a pretty pathetic ad hominem insult that serves only to wipe out whatever credibility you might have gained.

Furthermore, protecting the real 9/11 perpetrators, as you appear to be doing, makes you an accessory after the fact in the mass murder that took place that day.
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John Fenderson (profile), 30 Dec 2013 @ 10:32am

Re: Re: Re: Al Kaboom = US Government
Actually, the evidence is pretty overwhelming that the US did not perpetrate 9/11. In all the years since, nobody has been able to make a strong case otherwise.

Now, if you want to argue that elements in the government knew that the attack was going to happen and allowed it, either intentionally or otherwise, a case can be made. Definitively proving it, however, would be tough to do (unless we get 9/11's version of Snowden).
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Peter Wakefield Sault, 30 Dec 2013 @ 10:36am

Re: Re: Re: Re: Al Kaboom = US Government
So now you play the straw man fallacy. Nobody here, least of all me, connected Bush 43's war crimes with 9/11.

You just can't play straight, making you a chronic cheat.
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Peter Wakefield Sault, 30 Dec 2013 @ 10:42am

Re: Re: Re: Re: Al Kaboom = US Government
the evidence is pretty overwhelming that the US did not perpetrate 9/11

The US has an alibi? So what is it, exactly? Oh that's right! Bush 43 was in Florida "reading" a story about a baby Baphomet to schoolchildren. Arnold Rothstein* would be proud of him! Anything else?

* Arnold Rothstein, the USA's very first mobster, taught Al Capone to dress smartly and go to the opera while his hoodlums were shooting up the streets.
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Jim B., 30 Dec 2013 @ 11:40am

Judge Under NSL and FISC Order
This reads "to precisely" in tandem with the talking points of the Whitehouse and the NSA ruling elite. I question if this is a Judge issuing a ruling under the direction of some other entity. Certainly this Judge, if this is true, if it is every found out, will end his career in disgrace. I'm sorry, but it is just too much to be anything else.

Like the case with Bradley Manning where the judge was offered a promotion during the trial, this too could be the case with Judge Pauley. The ruling is far too much in parallel with that of the talking points of the NSA and Whitehouse. I suspect offers of similar promotions also exist.
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Anonymous Coward, 30 Dec 2013 @ 12:02pm

Re: Re: Re: Re: Re: Al Kaboom = US Government
Occum's Razor is not on your side. However that doesn't absolve them of their responsibility for 9/11. Decades of manipulations of the affairs of foreign nations for their own personal benefit at the expense of the people of those nations with little to no regard for their sovereignty created the circumstances that culminated in 9/11. Furthermore, their response to the even was to use it as an excuse to ratchet up and extend those exploits further not only against foreign nations but against their own population as well. For this they need to be held accountable.
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Peter Wakefield Sault, 30 Dec 2013 @ 12:38pm

Re: Re: Re: Re: Re: Re: Al Kaboom = US Government
"Occum's Razor is not on your side."

What is that supposed to mean?

Read my article. Fault it if you can. Tell me who else could fire a cruise missile at the Pentagon except the Pentagon.

http://www.odeion.org/cruisemissile

(By the way, don't bother accusing me of failing to discover the fate of "Flight 77". My article is not about "Flight 77", which is probably a fairytale in any case. There is no evidence whatsoever that such a flight ever took off.)
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Anonymous Coward, 30 Dec 2013 @ 12:56pm

Re: Re: Re: Re: Re: Re: Re: Al Kaboom = US Government
http://en.wikipedia.org/wiki/Occum%27s_Razor

Occum's Razor in a scientific principle that basically states that the most simplest, most logical explanation for an occurrence is most likely the correct one. The "Inside Job" conspiracy theory for 911 is obviously not the simplest, most logical explanation given all the evidence at hand.
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John Fenderson (profile), 30 Dec 2013 @ 2:58pm

Re: Re: Re: Re: Re: Re: Re: Al Kaboom = US Government
Fault it if you can.

Don't have to. All of those arguments have been debated & called into doubt extensively all over the internet, by people who are actually experts in the relevant fields.

The answer is: there was no cruise missile.
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Anonymous Coward, 30 Dec 2013 @ 7:45pm

Re: Re: Re: Re: Re: Re:
Hell, give me 20 law professors to whom I can pose a legal matter and I will get 20 different answers. Just because you claim to have some that claim this site as insightful by no means translates into impeccable legal analysis. Among many that come to mind, what you articulated as the proper legal standard that should apply to statutory damages under copyright law. Seems you were much too quick to jump on the Gore bandwagon without analysis of the actual legal issue decided so many years ago by the Supreme Court, that which was articulated in Williams. Who knows? Perhaps some day in the future Gore may get traction, but clearly Current day promotion of Gore is failing to get any traction.

Have I ever taught? Not in an academic setting, but countless times in private settings (e.g., yearly meetings of professional associations) discussing important matters of law. Written a treatise? Nope, but then only a very, very few take the time to do so. You seem inclined to try with all your might to draw a causal relation between these rather silly questions and one having a thorough grounding in various matters of law. Hate to break the news, but top notch lawyers who prevail on a regular basis are neither professors nor treatise writers. They are students of law, and apply what they learn in compelling manners.

I learned many years ago that if one does not have strong arguments that rest upon a firm factual foundation, then resort to mockery and insults can be expected. It is only when such a foundation I believe is lacking, and yet unsubstantiated declarative statements of law and fact are being made with virtually absolute certainty, that I am inclined to comment. Claims to a patent obvious? Maybe, but just because one waives their arms and says so without any intellectually honest analysis of the relevant facts and law. Courts do not buy it, and neither do I.

There is a saying I created a number of years ago that I use when describing the futility of arguments with persons having tenuous grasps of subjects. "It is impossible to discuss a matter with a person who is absolutely convinced they really know what they are talking about, but in reality is clueless of the fact he/she does is woefully ignorant of the subject matter."

How sad that so many articles here that touch upon the law are written with the firm conviction that the law is much like an engineering problem. Given accurate data and accurate equations and an answer can be determined with great precision. Unfortunately, this is not the case with law. On the same data set and with well established precedent, it is not at all possible to predict with firm 100% conviction the outcome of a contested matter. It seems that noting this and other peculiarities of our legal system that weigh heavily on subjects presented here are not well received when the possibility of alternate outcomes is noted.
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Mike Masnick (profile), 31 Dec 2013 @ 12:02am

Re: Re: Re: Re: Re: Re: Re:
Hell, give me 20 law professors to whom I can pose a legal matter and I will get 20 different answers

We agree. Which is why you -- yet again -- appear to be missing the point. You asserted the exact opposite. That there is some "truth" in law that we fail to grasp. You are wrong. We comment on the law. You disagree with our commentary because you're a biased, not very intelligent, lawyer, who profited off a broken system and is unable and unwilling to recognize problems with the law.

My reason for bringing up what various lawyers -- including professors and practitioners -- have pointed out about this site is to point out how incredible demeaning, stupid and pedantic your assertion was that we need to go to law school to comment on the law.

You are, as per usual, full of shit. And we called you on it. But, again, rather than admit your truly full of shit nature, you choose to continue to make pedantic asides, pretending that you have somehow gleaned knowledge that no one else could possibly have, but the great and mighty Mr. S.

Seems you were much too quick to jump on the Gore bandwagon without analysis of the actual legal issue decided so many years ago by the Supreme Court, that which was articulated in Williams.

And yet in this very same paragraph you note that 20 lawyers will give you 20 different answers. You believed that one set of precedents made sense, we argued why we disagreed.

Have I ever taught? Not in an academic setting, but countless times in private settings (e.g., yearly meetings of professional associations) discussing important matters of law.

Wow. In your last comment, you implied that only through going to law school could one learn these issues. Yet, here you argue that it is possible to teach the law in private settings. Yet you completely, stupidly and ignorantly (as is your standard MO) assume that no one here has learned the law through similar means, from lawyers much more accomplished, skilled and respected than you ever were.

Hate to break the news, but top notch lawyers who prevail on a regular basis are neither professors nor treatise writers. They are students of law, and apply what they learn in compelling manners.

You're incredible. First, we can't understand the law without learning from professors. Then, those professors are morons who don't understand the law.

This is why I call you out for being full of shit. Because you are.

I learned many years ago that if one does not have strong arguments that rest upon a firm factual foundation, then resort to mockery and insults can be expected.

Holy shit. Considering that you come here EVERY FUCKING DAY and insult and mock us, turn your stupid saying around and look in the fucking mirror.

It is only when such a foundation I believe is lacking, and yet unsubstantiated declarative statements of law and fact are being made with virtually absolute certainty, that I am inclined to comment.

Bullshit. You comment all the time on stuff you have NO CLUE about. Did you go to school to learn that famous authors with massive followings couldn't possibly have fans? No? Then why did you make that assertion in our comments? Did we make some claim about a famous author that only you, the great and mighty lawyer could "clarify" in letting us know that one of the most popular authors of the 1980s had no fans?

There is a saying I created a number of years ago that I use when describing the futility of arguments with persons having tenuous grasps of subjects. "It is impossible to discuss a matter with a person who is absolutely convinced they really know what they are talking about, but in reality is clueless of the fact he/she does is woefully ignorant of the subject matter."

Again, that applies so much to yourself as to be somewhat unbelievable.

Given accurate data and accurate equations and an answer can be determined with great precision. Unfortunately, this is not the case with law. On the same data set and with well established precedent, it is not at all possible to predict with firm 100% conviction the outcome of a contested matter.

Nor have we claimed otherwise. You seem to have built up a strawman in your head that you wish to rip down. Go for it. It continues to show that you are full of shit.

We reguarly note that judges can decide cases in all different ways. That does not mean we cannot assess what we think would be the proper application of the law -- the same thing you do. The difference? Unlike you, we don't claim to be part of the almighty club among who only a special council of elder wisened folks could possibly understand, while all the other peons should keep their mouths shut.
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Anonymous Coward, 31 Dec 2013 @ 1:35am

Re: Re: Re: Re: Re: Re: Re: Re: Al Kaboom = US Government
Link to these "arguments" so they may be consumed by others. Don't say "look it up yourself" either. If YOU are the one claiming the evidence exists, then YOU provide the links YOU say exist.

Otherwise, your retort consists of: "Some people said no, therefore no". That is about the farthest thing from substantive that could possibly exist.

In the end, it doesn't matter if there was no cruise missile - there was no plane either.
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Maheen Ali, 31 Dec 2013 @ 2:21am

Intresting Post
I found very interesting post on stumblupon
Thanks for sharing
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Anonymous Coward, 31 Dec 2013 @ 6:50am

Re: Re: Re: Re: Re: Re: Re: Re:
Yes, the same cadre of lawyers/academics mention you from time to time, in many instances because you publish articles that agree with the views they hold and promote. Their views are treated in most instances with the utmost of deference for reasons that seem to me to represent conformational bias.

At the very same time there are many who do not agree with these views for reasons they express with great exactitude. Yet, when mentioned here it is not at all uncommon for them to be treated with mockery and disdain.

Having read many articles here the "you agree with me - good" and "you disagree with me - bad" bias could not be more palpable. It appears as if (not saying this is an immutable rule, but only an appearance) the only opinions that reflect what is right, noble, insightful, etc. are those that tow what I term the "party line".

I happen to subscribe to the position that polar opposite views, those that may reflect what you believe and those that do not, contain useful information that is educational in nature and should not be dismissed out of hand in a dismissive screed merely because they do not serve your narrative. There are always two sides to every matter and each should be given thoughtful consideration because each almost certainly has some measure of merit.

Using as an example your most recent article concerning the Author's Guild announcement of its intent to appeal the district court ruling in favor of Google, you lay into the guild as engaging in a futile exercise that is a complete waste of money. Maybe the district court will be upheld on appeal, with the appeals court agreeing with each and every word of the decision below, but then again it may not. Why? Because there are many aspects of the court below's fair use pronouncements that are ones of first impression, unique interpretations of the statutory mandates, cut against the grain of the exclusive rights conferred to authors, etc. My point? This case is far from final and by no means is a slam dunk for either of the parties. Yet, you have already pre-determined the outcome as exemplified by the title of your article. And if your title is proven wrong, what then? A mea culpa article with an objective analysis of why the case was reversed, or another "the court just doesn't get it" article?

My point? One sided articles as regularly appear here do nothing to educate your readers, and, if fact, may lead them down a path that results in them forming opinion on the basis of significantly incomplete information.
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Gwiz (profile), 31 Dec 2013 @ 8:56am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
My point? One sided articles as regularly appear here do nothing to educate your readers, and, if fact, may lead them down a path that results in them forming opinion on the basis of significantly incomplete information.

Putting aside that Techdirt is an "opinion" blog, your underestimation of the intelligence of the readership here is a bit arrogant.

Techdirt attracts readers who are highly educated and very intelligent. To imply that Techdirt readers blindly follow whatever Mike writes without investigating other sources and viewpoints is downright insulting.
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FM Hilton, 31 Dec 2013 @ 9:36am

Talking to the Peons, er, 'laypeople'
I'd suggest this supposed lawyer shut the fuck up. Mostly because he has no clue and no idea who the readers are on this board.

We might look stupid, and geeky, but some of us have done far more reading of court decisions than he ever thought of.

Some of us have actually learned how to read a brief, a response, a order and a summary judgement-not to mention to have logged into PACER every single day for over 3 years following a case. That's not being a lawyer, but a 'layperson' who happens to have done it.

I don't know what kind of law you practice but I'd suggest you stop trying to impersonate a lawyer.

Because I know personally better lawyers than you who would not call everyone stupid just because they did law school.

Some of the best lawyers in the world happen to be behind bars, and the ordinary ones don't tell them they're stupid, either.
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Mike Masnick (profile), 31 Dec 2013 @ 10:04am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Yes, the same cadre of lawyers/academics mention you from time to time, in many instances because you publish articles that agree with the views they hold and promote. Their views are treated in most instances with the utmost of deference for reasons that seem to me to represent conformational bias.

What amazes me is how everything you accuse us of, you do in spades.

How frequently, for example, do you point to statements by Orin Kerr or Stewart Baker as if they are the final word on things?

Yes, we have an opinion. So do you. Our opinion differs from yours. You, however, are the only one with the gall to suggest that only you have the knowledge to have the "correct" opinion.

Having read many articles here the "you agree with me - good" and "you disagree with me - bad" bias could not be more palpable.

Again, this is significantly more true of YOU, not us. You disagree with us, so you continually claim that our analysis is "bad" or "ignorant". Because you disagree with us. Yet, when incredibly ridiculous claims are made -- such as by Judge Pauley in this case -- you treat them as gospel because they agree with your view.

We, however, don't hide the fact that we have an opinion and are write our opinion. You, on the other hand pretend that you're some brilliant oracle from on high, who because you once had a job you thought made you powerful, that you have some deep wisdom into things we peons cannot understand.

You are condescending and pedantic especially when you are making claims that are simply wrong.

I happen to subscribe to the position that polar opposite views, those that may reflect what you believe and those that do not, contain useful information that is educational in nature and should not be dismissed out of hand in a dismissive screed merely because they do not serve your narrative.

Oh bullshit. You don't believe that at all. Because every time we explain why you're full of shit you continue with your insults and attacks on us, rather than admitting that our opinion contains useful information that is educational. You are so full of shit, especially because you don't even realize that *everything* you accuse us of, you do to the nth degree.

Using as an example your most recent article concerning the Author's Guild announcement of its intent to appeal the district court ruling in favor of Google, you lay into the guild as engaging in a futile exercise that is a complete waste of money. Maybe the district court will be upheld on appeal, with the appeals court agreeing with each and every word of the decision below, but then again it may not. Why? Because there are many aspects of the court below's fair use pronouncements that are ones of first impression, unique interpretations of the statutory mandates, cut against the grain of the exclusive rights conferred to authors, etc. My point? This case is far from final and by no means is a slam dunk for either of the parties.

And, once again, as you ALWAYS do, you miss the point, jump to conclusions based on your own ridiculous bias. Yes, it's true that an appeals court may overturn the ruling. But that wasn't the point of the post. The point was that *no matter what the outcome* the AG loses, because if they succeed in killing Google's book scanning project, tons of authors who have found that it helps them sell more books will lose out.

That was the point. Clearly stated in the article. But you didn't get that because you come from the same bias as always: "copyright maximalism is good, and if Mike is arguing against it, then I will shit all over it." Yet, once again, you make a totally bogus statement, influenced by your biases, and then pretend that you're the objective one? Seriously?

My point? One sided articles as regularly appear here do nothing to educate your readers, and, if fact, may lead them down a path that results in them forming opinion on the basis of significantly incomplete information.

My point? You're full of shit. We post OUR OPINION on things, just as you do. The difference? We are clear that it is our opinion on things, whereas you pretend that you know all and only you can have a reasonable opinion on things.

Once again: you are full of shit.
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John Fenderson (profile), 31 Dec 2013 @ 10:42am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Al Kaboom = US Government
So did they truck in those plane parts that are clearly visible in many of the pictures of the crash site?
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