District Court Judge Worried About NSA Running Out The Clock On Phone Records... While Appeals Court Happy To Let Clock Run

from the different-approaches dept

Thu, Sep 3rd 2015 4:03pm — Mike Masnick

On Wednesday, there were separate hearings in two of the most watched cases around the NSA bulk phone records collections. First up, was a hearing before district judge Richard Leon, who was the first judge to find the NSA's bulk collection of phone records under Section 215 of the PATRIOT Act unconstitutional. As you may have heard, last week, the DC circuit appeals court struck down that ruling, focusing solely on the question of standing, saying that the plaintiff, Larry Klayman, had failed to prove that he had standing, since he used Verizon Wireless, and the documents released by Ed Snowden only showed that Verizon Business Services turned over phone records.

Of course, in a bit of a twist, while it was true at the time of the original lawsuit that there was not public information confirming Verizon Wireless participated in the program (even though many suspected it), since then the government has released documents proving that Verizon Wireless was part of the collection program. Back in court, Judge Leon made it clear he still believes that the program itself is unconstitutional (and that the appeals court did not rule on that issue, but just the standing issue). He's also well aware that under the USA Freedom Act, the bulk collection under the PATRIOT Act is about to end, so he spent the time in court suggesting strongly to Klayman that he needs to act quickly if the case is to have any meaning at all -- while also telling the DOJ he won't let them just run out the clock. The DOJ is clearly relying on the ending of this particular kind of collection under the USA Freedom Act to suggest the court has nothing to rule on, but Judge Leon isn't buying it:

Justice Department lawyer Rodney Patton noted that the wind-down of the NSA program follows Congress's passage in June of the USA Freedom Act, which ends the phone metadata collection program but also extended for about six months the legal authority under which the g was set up.

"The political branches came to a compromise," Patton said. "This court should consider what the political branches decided to do.....and not consider the extraordinary remedy of [a new] injunction."

After Patton spoke, Leon leaned in and pointed for emphasis as he warned against foot-dragging by the government. "I am not going to allow, if I can help it, any misimpression or impression that the government is trying to run out the clock here," the judge said. "I'm not going to tolerate that."

There are some procedural issues in the way, however, starting with the fact that the appeals court has not officially released the appeal to send the case back to the district court, so Judge Leon hinted very strongly, while claiming he wasn't instructing Klayman what to do, that Klayman needs to get the appeals court to officially give the case back. But he's also clear that he still believes the program is unconstitutional:

"This court believes there are millions and millions of Americans whose constitutional rights have been and are being violated, but the window...for action is very small....It's time to move."

Meanwhile, over in the 2nd Circuit appeals court -- the one appeals court to rule that this same program was unconstitutional, the ACLU has been working hard to demand that the program be shut down now even during the so-called "transition" period from the PATRIOT Act to the USA Freedom Act. The ACLU is arguing that if the program is unconstitutional, then it needs to be stopped, now, not during some "transition." Unfortunately, it appears that the court is more skeptical on that one, and willing to let the government "run out the clock." From the Guardian:

“The harm we’re suffering has no expiration date,” Abdo argued, contending that the continued surveillance, which expires on 28 November under the new surveillance regime Congress passed in June, has a chilling effect on the civil liberties group’s work.

But three judges on the second circuit court of appeals signaled a reluctance to intercede in the NSA’s ongoing surveillance, which is ostensibly designed to smooth a pathway toward letting the NSA and other federal agencies obtain vast amounts of US call records from telecoms pursuant to a judicial order.

“One would think you’re on the losing end of a civil rights catastrophe, but you’ve made tremendous progress on your point of view,” said Judge Robert D Sack, who referenced a famous Vietnam-era quote to ask if the injunction would be a moot point after November: “Why don’t you declare victory and withdraw?”

Judge Sack also compared the situation to ordering a plane to land mid-flight, rather than complete its descent. Given all that, it seems unlikely that the court will order the mass surveillance be stopped prior to the official end date set by the USA Freedom Act. And, all this means is that it's likely the government will end up with basically no punishment for having unconstitutionally spied on Americans for years.

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Filed Under: 2nd circuit, doj, nsa, patriot act, richard leon, section 215, surveillance, usa freedom act

12 Comments

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Anonymous Anonymous Coward, 3 Sep 2015 @ 4:31pm

It's not a victory

“Why don’t you declare victory and withdraw?”

It's not a victory if the government gets to continue to violate the Constitution (after such a declaration the snooping should come to a roaring screeching and immediate halt, even pending appeal) in this format, and others which still need to be discussed (prosecuted).

The whole bullshit lack of standing garbage is the government hiding behind rhetoric to cover up its misdeeds.
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Anonymous Coward, 3 Sep 2015 @ 4:31pm

Breaking the veil
It is worth noting, that the carrier has engineered internal software, and hired people SPECIFICALLY to attend to these requests. There is a distinguishable point, between being a witness, and being an agent of state.

I would argue that if you write software without being requested to do so in order to facilitate the requests of the state, you are exceeding the states request, and actively participating in law enforcement, not simply responding to subpoena.

By actively participating and becoming a state agent, the carrier would have made itself liable for violating the consumers civil rights directly, and no longer enjoy the protection of the court. Which would make the carrier liable, both criminally, and civilly.

Just a thought.
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Anonymous Coward, 3 Sep 2015 @ 6:42pm

Hey Mike, Serious question: Where's the harm? You often point to right holders and question where evidence of harm is for infringement. Can you acknowledge that you can't show harm with this surveillance?
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Anonymous Coward, 3 Sep 2015 @ 6:52pm

I swear I think kindergartner's get more punishment than politicians or the political elite. Did Clapper get a time-out for lying to Congress, Petraeus for disclosing top secret information to his lover, Bradbury for the use of waterboarding. There has been so many illegal activities, it seems like Iran might be nice place for a vacation.
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David, 3 Sep 2015 @ 7:38pm

What's this "run out the clock" bit?
The clock on a remedy for unconstitutional collection does not run out when the collection stops but rather when all the collected records have been destroyed. There is definite room for an unjunction even after the collection has run out.
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Anonymous Anonymous Coward, 3 Sep 2015 @ 8:03pm

Re:
The harm is to the fourth ammendment rights of every paerson, including you. Once a right is taken away, how are you going to get it back?

Oh, and save us from that 'if you have nothing to hide crap'.
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Anonymous Coward, 4 Sep 2015 @ 6:43am

Re: Re:
The harm is to the fourth ammendment rights of every paerson, including you. Once a right is taken away, how are you going to get it back?

You could say the same thing about a copyright owner who has a right infringed. But you're still not telling me the harm. That's my point. You can't. Neither can Mike. He thinks copyright owners should show the harm, but then he doesn't show the harm here.
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Anonymous Coward, 4 Sep 2015 @ 7:24am

Re: Re: Re:
copyright =/= your fourth amendment rights

"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."

The harm is that our government decided we don't have this right. But that would make this right a privilege. Privileges can be taken away, but our rights are inalienable and bestowed upon us by the creator.

I'm not sure how much more explicit one could get. The government is clearly searching through all of our phones (which contain a ridiculous breadth of information about our personal lives) using authority other than a warrant: "supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"
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Anonymous Coward, 4 Sep 2015 @ 8:34am

Re: Re: Re: Re:
I disagree that it violates the 4th Amendment because, under the third-party doctrine, it's not even a search in the first place.

Regardless, even assuming it does violate the 4th Amendment, what, precisely, is the harm? You can't measure it, yet you say it exists.

That's my point. Mike can't measure it either, yet he clearly thinks it's a significant harm.
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Cdaragorn (profile), 4 Sep 2015 @ 9:21am

Someone doesn't seem to understand what unconstitutional means...
Judge Sack also compared the situation to ordering a plane to land mid-flight, rather than complete its descent

If that plane is violating your airspace and continuing to ignore you, you don't let it land. You SHOOT IT DOWN!
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Anonymous Coward, 4 Sep 2015 @ 11:15am

Re: Re: Re: Re: Re:
How do you measure harm?

Harmometers?

What unit of measurement does one use to judge more or less harm?

The hamonzs?
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Anonymous Coward, 4 Sep 2015 @ 11:23am

Re: Re: Re: Re: Re:
You've just contended that violating the rights of nearly every single American citizen is harmless, and then asked someone to prove that it causes harm.

Do you ever step back and evaluate your own choices?
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