Almost Everything About The Bulk Collection Of Phone Data Is Illegal

Legal Issues

from the a-simple-explanation dept

Tue, Jan 28th 2014 1:11pm — Mike Masnick

We already wrote about the Privacy and Civil Liberties Oversight Board (PCLOB) and its scathing report as to how the program to collect phone records on pretty much every phone call in the US was both illegal and unconstitutional. However, if you don't want to get too down in the weeds over why it's illegal, the absolutely best summary I've seen comes from Julian Sanchez and fits into a tweet:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on "FBI", "records," "relevant" & "investigation."
— Julian Sanchez (@normative) January 23, 2014

In case you can't read that, it says:

215 allows FBI to get records relevant to an investigation. PCLOB: NSA program fails on "FBI", "records," "relevant" & "investigation."

Believe it or not, he's not even being that glib here. Section 215 is pretty clear on all of those things. It's just for the FBI, and allows them to get records relevant to a specific investigation. Yet, the program is run by the NSA, which collects the data, instead of the FBI. It is not collecting "records" as intended by the law, and most of those records are irrelevant, and none of this is tied to any particular investigation. I'm reminded of the joke that the Holy Roman Empire wasn't actually holy, Roman or an empire.

When the law includes four basic conditions, and basically all four of them are not met, the program is beyond illegal. It's just a farce. It's kind of amazing that President Obama and other NSA defenders are still arguing that the program is perfectly fine.

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Filed Under: bulk metadata collection, business records, fbi, julian sanchez, nsa, pclob, section 215, surveillance

28 Comments

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silverscarcat (profile), 28 Jan 2014 @ 8:30am

Wanna know what's REALLY interesting?
No where in the entire Constitution or the Bill of Rights does it say that these rights are limited to the citizens of the United States of America.

While we can't force the constitution or the Bill of Rights onto others, shouldn't we force our government to follow the 4th Amendment as it's written and apply it to everyone?

After all, the Bill of Rights doesn't say what the government can do, it says what the government can NOT do.
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Anonymous Coward, 28 Jan 2014 @ 1:29pm

This whole farce has been cooked up to watch the American public. Mainly because they fear the public and they know what they are doing is wrong, both in spirit as well as for the legality itself. How often have you heard the NSA supporter claim it was legal? I have several times if not more called attention to the idea that bad laws are made all the time that are overturned in court as being unconstitutional.

This is why the insane hunt to find ways to prevent challenges in court from those affected. Standing and the claim of National Security are the two most often heard. But when it gets entered into a court docket, each time it stands the chance of of the court finding the programs illegal through the unconstitutional rulings. This is precisely what they fear as they already know they have exceeded the limits of what they should be able to do and schemed to do so.

Heads should roll over this. Real traitors of the nation should be exposed instead of this combination witch hunt and three ring circus over Snowden who is plainly a whistle blower and without which we would not yet be aware of just how badly the government has went into the security state mode.

No one in government service took an oath to keep you safe. They took an oath to uphold the Constitution and it appears the domestic enemies are one and the same as government figures.
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Shmerl, 28 Jan 2014 @ 1:33pm

For some reason all these newest reports while mentioning PRISM, never mention bulk Internet data collection by Narus (which was revealed in 2006).
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jackn, 28 Jan 2014 @ 1:38pm

Re: Wanna know what's REALLY interesting?
Actually, it explicitly refers to ALL men. I don't think the word citizen appeared for 100 years.
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Namel3ss (profile), 28 Jan 2014 @ 1:40pm

We officially live in Bizarro World now.
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Anonymous Coward, 28 Jan 2014 @ 1:47pm

Re: Wanna know what's REALLY interesting?
"No where in the entire Constitution or the Bill of Rights"

Uh... The Bill of Rights is actually the first 10 Amendments to the Constitution and is therefore by definition PART of the Constitution this is kind of redundant, don't you think?

I know I'm being picky and if you had just said "No where in the entire Constitution..." or even flipped it around so you said something like "No where in the Bill of Rights or even the entire Constitution..." then your sentence would have made more sense at least to me. ;)
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Adam, 28 Jan 2014 @ 1:52pm

Unfortunately, Obama believes that the ends might justify the means and that is apparently good enough for him.
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silverscarcat (profile), 28 Jan 2014 @ 1:58pm

Re: Re: Wanna know what's REALLY interesting?
You make a good point. ;)
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Richard (profile), 28 Jan 2014 @ 2:07pm

Telling the emperor (or his AG) about his wardrobe is not usually rewarded outside of fairy tales. If Se�or Sanchez ever crosses a U.S. border outbound, I wish him luck getting back in.
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Trevor, 28 Jan 2014 @ 2:11pm

I'm sure there is a secret court holding that says "Oh, what they really meant was THIS..."

By FBI, they meant Federal [insert agency here]...
By records, they meant recordED...
By Investigation, they meant Past, Present, and Future Investigations not yet realized...
By Relevant, they meant LOLOL.
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BentFranklin (profile), 28 Jan 2014 @ 2:32pm

Re: Re: Re: Wanna know what's REALLY interesting?
You accept constructive criticism well!
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PRMan, 28 Jan 2014 @ 2:42pm

Re:
By relevant, they mean that someday it MIGHT be relevant, so we should keep it.
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Anonymous Coward, 28 Jan 2014 @ 2:51pm

Re:
Yeah it's not so secret but unwritten rule that says the law means... well... whatever we want it to mean... today... because... well... we are the government damn it and we have all this money we got from these rich corporate people that allows to buy a more military resources and technology than anyone else anywhere and so who is going to argue with that? The only rule we have to follow is that we have to keep those rich corporate people happy so that the continue to give us all this money so as long as we follow that one, we can do whatever we damned well please. Got that? Now shut up and go watch a reality TV show or something. We've got stuff to do that is none of your damned business.
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Mason Wheeler (profile), 28 Jan 2014 @ 3:11pm

Re: Wanna know what's REALLY interesting?
The 4th amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Whose right? The right of the people. What people? Remember that this is an amendment to the Constitution, which begins thus:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Therefore, by simple substitution of equivalent terms,
The right of the People of the United States who are establishing this Constitution (and our Posterity) to be secure in their persons...

Just saying.
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Anonymous Coward, 28 Jan 2014 @ 3:46pm

Re: Re: Wanna know what's REALLY interesting?
Consider also though that the Declaration of Independence stated that the founding fathers believed that all people (not just citizens) were inherently entitled to certain inalienable rights and once independence was attained the Constitution was an attempt by the citizens to codify and secure those rights. "We the people of the United States" in the preamble specifies who is writing the Constitution and why. The Declaration of Independence more aptly declared who they believe was entitled to those writes.
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Quiet Lurcker, 28 Jan 2014 @ 4:37pm

Re:

Heads should roll over this. Real traitors of the nation should be exposed instead of this combination witch hunt and three ring circus over Snowden who is plainly a whistle blower and without which we would not yet be aware of just how badly the government has went into the security state mode.

No one in government service took an oath to keep you safe. They took an oath to uphold the Constitution and it appears the domestic enemies are one and the same as government figures.

You know, they are meeting tonight. Too bad we can't surround the chamber and arrest them all as they come out from the speech.

Or better yet, arrest the president, vice president, and speaker while they're on the dais (rostrum?) and march them out of the chamber in handcuffs, then arrest the rest of them as they leave the senate floor.
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Androgynous Cowherd, 28 Jan 2014 @ 6:35pm

Not that funny.
I'm reminded of the joke that the Holy Roman Empire wasn't actually holy, Roman or an empire.

I'm reminded of something a lot less funny, specifically that the Democratic People's Republic of Korea is only one of the four things in its name.
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sloppyslim, 28 Jan 2014 @ 6:54pm

215 allows FBI to get records relevant to an investigation.
actually , that might be the one part that the government is actually complying with .

its the DTIC thats tasked by the NSA to collect the data from the switches . from there , the government shares it with just about everybody and their brother down to the local donut shop cop . ise.gov and dhs fusion centers
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btrussell (profile), 29 Jan 2014 @ 1:58am

Re: Re: Re: Wanna know what's REALLY interesting?
"The Declaration of Independence more aptly declared who they believe was entitled to those writes."

We know exactly who is entitled to those writes. Copyright holders and no one else!
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Just Sayin', 29 Jan 2014 @ 2:27am

reading fail
let's try this again, with the actual content of section 215:

The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

So the twitter quote is not correct, because it over simplifies to attempt to limit what the law specifically allows. The word "relevant" does not appear in the law.

It's a nice attempt to re-write the law, but the law is there in plain enough english.
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Richard (profile), 29 Jan 2014 @ 3:04am

Cold dark matter.
I'm reminded of the joke that the Holy Roman Empire wasn't actually holy, Roman or an empire.

Same is true of Cold dark matter.
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Richard (profile), 29 Jan 2014 @ 3:04am

Re: Not that funny.
and only approx half of that one.
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silverscarcat (profile), 29 Jan 2014 @ 9:46am

Re: Re: Wanna know what's REALLY interesting?
The Constitution, in an of itself, before the Amendments, mentions mostly who can serve as President, the House and the Senate with restrictions and requirements for all three branches of government, as well as treaties, commerce, tax, and others.

But, I can see your point that the whole "People of the United States" thing is implied.

However, my point is, that a literal reading of the Bill of Rights does not include only citizens of America, but everyone and one could make an argument that the spying the NSA does is, without a warrant, 100% unconstitutional, and therefore illegal.
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silverscarcat (profile), 29 Jan 2014 @ 9:48am

Re: Re: Re: Re: Wanna know what's REALLY interesting?
Being both a writer and a critic, one learns how to take it. You don't last long as a writer if you're afraid of people criticizing your works. ;)
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GEMont (profile), 29 Jan 2014 @ 4:08pm

When laws are written by criminals....
"It's kind of amazing that President Obama and other NSA defenders are still arguing that the program is perfectly fine."

Hardly amazing at all.

Criminals by their nature, have very little respect for the law unless the law benefits them. Since Bush1, American law has been undergoing a huge rewrite, specifically to allow criminals the freedom they desire to pillage the nation, without fear of incrimination.

That the criminals occupying the White House and their cheerleading squads consider breaking the law to be "perfectly fine", is quite expected.

The criminals in office; because they profit thereby, and the cheerleaders; because they expect to some day be among the crooks in office, or at least benefit financially somehow from the process.

The benefits derived from all of that blackmail material they are collecting are so lucrative that the criminals in office have given only minor consideration to the unlikely repercussions of breaking the law, and in fact assume that their positions of power give them immunity to such repercussions anyway.

Where there is no chance of culpability, there is no reason to not break the law.

Criminals do not expect to be caught anyway.
It is simply not a part of their nature.
It is in fact the thought of getting caught that prevents most citizens from participating in criminal activities.
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Lee (profile), 29 Jan 2014 @ 8:37pm

biggest terrorist threat to the USA
I am reminded of the quote by Upton Sinclair, "It is difficult to get a man to understand something, when his salary depends on his not understanding it.� I think this is particularly apt for the employees of the NSA.

Prophetically, Osama bin Laden's primary aim in attacking the World Trade Center was actually to make us so frightened that we would sabotage our own freedoms and values, for the sake of safety. And with the NSA's crazy and unethical tactics, bin Ladens' destructive vision has largely come to fruition. The NSA is creepingly turning Osama bin Laden's insane dream into a reality.

More and more I feel a growing sense of horror and dismay at the members of this agency, who seem not to understand the crimes which they are committing, because their careers depend on their not understanding them..
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GEMont (profile), 7 Feb 2014 @ 1:18pm

Re: biggest terrorist threat to the USA
Prophetically, Osama Bin Laden was a CIA asset and had nothing at all to do with 9/11, save becoming the patsy.

I am amazed at how effective the Fed's cover-up program has been at convincing the American Public that this false flag operation was carried out by a bunch of sheep herders from a cave in Afghanistan.

I really shouldn't be surprised though, since We the People have also fallen for every other false flag operation the Fed has managed since Pearl Harbor.

I suppose it is simply that this one I got to witness in the making.
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The Wanderer (profile), 15 Feb 2014 @ 8:46am

Re: reading fail
What you quoted was 50 USC 1861 (a) (1), which is only the first paragraph of that subsection of the statute.

The word "relevant" appears in 50 USC 1861 (b) (2) (A):
http://www.law.cornell.edu/uscode/text/50/1861
Each application under this section shall include a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation
(Cutting off there not to obscure anything, but because there's no reasonable stopping point without including the entire subsection, which means I need to cut off somewhere.)

If you want to argue that this does not require that the things sought actually be relevant, only that there are reasonable grounds to believe such, you might be able to support that - although based on Sensenbrenner's comments, it seems very likely that the law was not intended to allow such an interpretation. Claiming that the word does not appear in the law, however, is simply ignoring the facts.
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