Nina Paley Argues Why Copyright Is Brain Damage

Court Dismisses Wikimedia's Lawsuit Over NSA Surveillance

from the not-over-yet dept

Fri, Oct 23rd 2015 6:15pm — Mike Masnick

Back in March, we noted that Wikimedia was suing the NSA over its mass surveillance program under Section 702 of the FISA Amendments Act. This is the part of the law that the NSA uses to justify its "upstream" collection -- which lets the NSA partner with backbone providers like AT&T and tap their fiber lines at entry/exit points from the country and sniff through all the traffic. The problem in many lawsuits concerning NSA surveillance is that it's been difficult for the plaintiff to satisfy the requirements necessary to get "standing." That is, can the plaintiff prove that he/she/it had rights violated by the program. Many earlier attempts failed, because they just presented stories of "well, the NSA is collecting everything, so..." and the courts have said that's not enough, since it needs to be shown that the plaintiff, in particular, was a target.

Wikimedia (and the ACLU, who is helping with the case), believed they had a smoking gun that could grant them standing. The following slide, which was revealed by Ed Snowden:

See that Wikipedia logo? Wikimedia Foundation and the ACLU argued that this presented evidence that the NSA was targeting Wikipedia users, and thus the Wikimedia Foundation had standing.

Unfortunately, so far, it's not working. Earlier today, the court tossed out the lawsuit, saying that Wikimedia did not present enough evidence to prove it has standing. The court, not surprisingly, relies heavily on the Supreme Court's ruling in Clapper v. Amnesty International, in which SCOTUS rejected Amnesty's similar claim by saying the organization failed to prove it had standing, since it couldn't prove its team was caught up in dragnet surveillance. Of course, famously, to get to that ruling, the US government flat out lied to the Supreme Court (something it has since admitted), claiming (incorrectly) that if information collected via such surveillance was used in criminal cases, the defendants would be told about it.

But, no matter, the court says that under the Clapper ruling, Wikimedia does not have standing, and basically argues that this case really is no different than that one. It rejects the idea that, thanks to Snowden, we now know a lot more about the NSA's surveillance program, basically saying that it's still too speculative.

Plaintiffs cannot provide a sufficient factual basis for their allegations because the scope and scale of Upstream surveillance remain classified, leaving plaintiffs to prop their allegation of actual injury on suppositions and speculation about how Upstream surveillance must operate in order to achieve the government's "stated goals." Indeed, plaintiffs cite the government's "stated goals" in nearly every facet of their argument.... It is, of course, a "possibility" that the NSA conducts Upstream surveillance in the manner plaintiffs allege, but this "bare assertion" is unaccompanied by "factual matter" that raises it "above a speculative level," and hence does not establish standing.

The court notes that the "speculative chain" may be "shorter" than in the Clapper case, but "it is a chain of speculation nonetheless."

The court also rejects the claim that since it's been revealed that the NSA does "about" searches in addition to "to" and "from" searches, that reveals much more broad searches. If you don't recall, one of the revelations is the fact that the NSA can run queries not just on something like "emails to or from Osama bin Laden" but also "emails about Osama bin Laden" which obviously would include a much larger set of content to sniff through. The court doesn't think this matters very much:

... plaintiff's contention that "about surveillance" is like the hypothetical government agent reading every piece of mail misses the mark. Unlike the hypothetical government agent reading every word of every communication and retaining the information, "about surveillance" is targeted insofar as it makes use of only those communications that contain information matching the tasked selector.

In short... it's not a problem that the NSA sniffs through everything to find all the emails about Osama bin Laden, because it's not using the data in all the ones it rejects. Besides, the court argues, the argument is still highly speculative.

Finally, the court looks at a few specific arguments for why Wikimedia and some of the other plaintiffs have more direct evidence that situate themselves differently. First, there's lawyer Joshua Dratel, who is somewhat well known for taking some rather high profile cases, such as handling Ross Ulbricht's defense over the Silk Road arrest, or defending the widow of Boston Marathon bomber Tamarlane Tsarnaev. Two other clients were Agron Hasbajrami and Sabirhan Hasanoff -- and in both cases, the government has admitted those two were subject to Section 702 surveillance. From there, the ACLU argues this means that Dratel's communications were almost certainly swept up and looked at by the NSA as well. However, the court doesn't buy it, saying that while it may be true that Dratel's communications were likely swept up, there's still not enough evidence that it was swept up by the 702 upstream program that the lawsuit is about:

Plaintiffs in this case... do not allege facts that plausibly establish that the information gathered from the two instances of Section 702 surveillance was the product of Upstream surveillance. In neither of Dratel's cases did the government indicate whether the information at issue was derived from PRISM or Upstream surveillance, and no factual allegations in the AC plausibly establish that Upstream surveillance--rather than PRISM--was used to collect the information. Moreover, given what is known about the two surveillance programs, it appears substantially more likely that PRISM collection was used in these cases...

The court is probably right here. There are two major surveillance programs under 702. The "Upstream" program that taps the backbone and then PRISM, in which a list of big internet firms agree to hand over certain information pursuant to a FISA court ~~ruling~~ rubber stamp telling them to hand over that information. And it is actually likely that the part of 702 that was used on Dratel's clients was of the PRISM variety. But the "well, you were surveilled under this other program using the same authority..." reason to dump this argument seems pretty weak. Because it still means surveillance of dubious legality under the same legal authority.

Then there's the case of Wikimedia, who argues that given the government's "stated goals," and the vast amount of traffic going to Wikipedia, it's all but certain that Wikipedia has been swept up in the Upstream collection. The court still isn't buying it:

Plaintiffs' argument is unpersuasive, as the statistical analysis on which the argument rests is incomplete and riddled with assumptions. For one thing, plaintiffs insist that Wikimedia's over one trillion annual Internet communications is significant in volume. But plaintiffs provide no context for assessing the significance of this figure. One trillion is plainly a large number, but size is always relative. For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach. Here, the relevant universe for comparison purposes is the total number of annual Internet communications, a figure plaintiffs do not provide--nor even attempt to estimate--in the AC. Without defining the universe of the total number of Internet communications, it is impossible to determine whether Wikimedia's alleged one trillion annual Internet communications is significant or just a drop in the bucket of all annual Internet communications.

Moreover, plaintiffs conclude that there is a greater than 99.9999999999% chance that the NSA has intercepted at least one of their over one-trillion communications on the bases of an arbitrary assumption, namely that there is a 0.00000001% chance the NSA will intercept any particular Internet communication. Plaintiffs provide no basis for the 0.00000001% figure, nor do they explain why the figure is presented as a conservative assumption. Plaintiffs seem to presume a string of zeroes buys legitimacy. It does not. Indeed, a closer look reveals that the number of zeros chosen by plaintiffs leads conveniently to plaintiff's desired result. If three more zeros are added to plaintiffs' figure (0.00000000001%), the odds that at least one of Wikimedia's one trillion annual communications is intercepted drops to approximately 10%. If four more zeros are added (0.000000000001%), the odds that at least one of Wikimedia's communications is intercepted drops to 1%. In short, plaintiffs' assumption appears to be the product of reverse engineer; plaintiffs first defined the conclusion they sought--virtual certainty--and then worked backwards to find a figure that would lead to that conclusion. Mathematical gymnastics of this sort do not constitute "sufficient factual matter" to support a "plausible allegation."

Ouch.

The court also rejects the idea that this kind of ruling means that the Upstream program can never face judicial review, pretending that the fact that the FISA court reviewed it (without any adversarial party) is enough... and (again, incorrectly) that criminal defendants prosecuted with information collected under the program can challenge said collection. And, yes, it's true that the DOJ has now said that it will start informing defendants, but it didn't for years.

The ACLU is, not surprisingly upset by the ruling, and I imagine it will be appealed soon.

93 D Md Opinion 10 23 2015 (PDF)93 D Md Opinion 10 23 2015 (Text)

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Filed Under: fisa amendments act, joshua dratel, prism, section 702, standing, surveillance, upstream, wikipedia
Companies: aclu, wikimedia foundation

38 Comments

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Anonymous Coward, 23 Oct 2015 @ 6:30pm

Facts and common sense mean nothing to crooked judges. These judges have shown how they are bought and paid for trash.
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Anonymous Coward, 23 Oct 2015 @ 6:31pm

Good for the ACLU and Wikimedia. Even if they are not successful, the information and logic is revealing and will lead to success eventually. It's sad that it's come to this.
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That One Guy (profile), 23 Oct 2015 @ 6:37pm

Nice logic that
Plaintiffs cannot provide a sufficient factual basis for their allegations because the scope and scale of Upstream surveillance remain classified,

To be able to file a lawsuit against the collections, you need 'standing' regarding the matter, which requires you to present evidence that you were(not just might or probably were) spied upon directly. That evidence is classified, which means that you can not access and/or use it. Therefore the only evidence that will allow the case to move forward is in the possession of the very agency that you're trying to sue.

According to that logic, it is flat out impossible to have standing to sue the NSA, because the information needed is classified, and therefor not available. And if 'stated goals' isn't enough, then pretty much the only thing someone could hope for is to find some document that specifically names them, and hope the court doesn't strike it as being classified, and therefor not admissible.

The court also rejects the idea that this kind of ruling means that the Upstream program can never face judicial review, pretending that the fact that the FISA court reviewed it (without any adversarial party) is enough...

Yeah, the FISA 'court' isn't. They know what the NSA tells them, only ever hear one side, rubber-stamp everything put before them, and might as well be officially a branch of the NSA instead of pretending to be independent. To call them a 'court' is to do a great disservice to actual courts, and to claim that if they okayed something that should be good enough is ridiculous, considering, with very few exceptions, they never say no to anything put before them.
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cypherspace (profile), 23 Oct 2015 @ 6:45pm

Re:
On a related note, we know that FISA judges have been purchasing Verizon stock. Gotta wonder if other judges are double-dipping too...
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Whoever, 23 Oct 2015 @ 6:57pm

How do judges get promoted?
I expect that too many rulings against the government is unhelpful when promotion to the Federal Appeals court is considered.
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Anonymous Coward, 23 Oct 2015 @ 7:19pm

There is no fixing this problem. Democrats, republicans, independents... it makes no difference which party is in power; war will continue, poverty will spread, and corporations will always own the politicians. Things never change and there is no actual hope that they will. Hell, we can't even reign in the local police! How are we supposed to clean up the government? I fully expect to die homeless...
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Anonymous Coward, 23 Oct 2015 @ 7:42pm

Re:
I fully expect to die homeless...

I don't think you're considered "homeless" in prison.
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Anonymous Coward, 23 Oct 2015 @ 8:06pm

Re:
revolution, civil war, or maybe they will just continue along until they are rounding up undesirables into camps because no one stood up to them in time
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Anonymous Coward, 23 Oct 2015 @ 8:44pm

Re: Re:
In all fairness, Verizon has been a good stock to buy/own for the last several years. High quarterly dividends at a good dividend yield percentage. I doubt government payments for activity related to the FISA court are a substantial part of that as compared to all the other ways they rip off customers and local governments.

In other words, those judges likely would have bought that stock regardless, and their actions probably didn't contribute much to raising the return. So calling it double-dipping is kind of shaky.
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Anonymous Coward, 23 Oct 2015 @ 9:27pm

Holy crap, of course we expected the judges to be tough, but the ACLU's case was so terrifically weak. Are their lawyers incompetent or just lazy? They could make a lot better use of their donations.
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Anonymous Coward, 23 Oct 2015 @ 11:17pm

The absurdity of this case is that the plaintiff is denied discovery of any information on upstream servers relating to their suspicions due to classification and national security.

Yet if the roles were reversed with the plaintiff being the government and the defendant being Wikimedia. You better believe the government would demand all sorts of data from Wikimedia's servers during the discovery stage and they'd be granted a 'Writ' or whatever it's called, no questions asked.

This case is simply a shell game hiding behind over classification and exposing the judicial system as a mockery full of double standards hid behind the guise of classification and national security.

You can't prove we're doing it because it's classified. You'll never achieve standing. And if you can prove it, you'll go to prison for leaking classified information. Pfffff
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Peter (profile), 23 Oct 2015 @ 11:17pm

Isn't it strange how the judges bend over backwards to 'understand' technology in the way the more powerful party needs it?

When talking copyright, they don't mind arguing that a browser cache (in the computer's RAM) and the the browser cache (on the hard disk) constitute illegal two copies in addition to the real copy in iTunes that was licensed. You lose - breach of copyright.

When talking NSA, storing ALL data on an NSA-server - no problem. Machine-analysing all of these data - no problem. Plaintiff's logo on an internal presentation - no problem. Unless you can prove a human analyst actually reads the document - no standing.
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Whatever (profile), 24 Oct 2015 @ 2:12am

Re:
Yes, it's impressive that the judge took the time to understand Wikipedia's argument and understood that they were clearly talking about a "hit by lightning while buying a winning lottery ticket" chance of them having standing. It takes a pretty good understanding of what is involved here. Yes, Wikipedia and the ACLU are powerful plaintiffs, but even then, the judge told them to pound sand.

What Wikipedia really needs to get standing is a case or example where confidential information from Wikipedia actually gets used. Until then, they have no standing, and the judge has made that perfectly clear. Just presenting an exercise in probability doesn't meet up to the legal standard to get standing.
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art guerrilla (profile), 24 Oct 2015 @ 3:04am

Re: Nice logic that
1. @ that one guy: enjoyed and mostly agreed with many of your comments recently, you almost always make good sense with good comments, thank you...

2. i have been unable to overcome the cognitive disconnect between believing the propaganda i have been force-fed my whole life of how 'merika is the bestest and greatest and most fairest and freeest and most law-abiding country in the universe EVAH ! ! !
...*AND*, that we have sekret laws with sekret courts with sekret interepretions and sekret jails filled with sekret prisoners with sekret sentences ...

(never mind sekret 'executive signing orders', never mind MURDERING (mostly) brown people the world over BASED ON OUR SAY SO, never mind ignoring our own laws and international laws, and never mind a two-tiered (in)justice system, etc, AD INFINITUM...)

it would *seem* to me -being a rational being- that there is one way to find out if they have any standing: INVESTIGATE just WHAT these spooks ARE ACTUALLY sucking up (what part of 'collect it all' does the judge not get ?) to find out if they have 'standing'...

of course, that is begging the question when you ask the foxes guarding the henhouse if they have been nicking any chickens, aint' it ? ? ?

and right-that-there is the nub: we are DEPENDENT upon the scumbags in gummint to tell us if they have been doing scumbag things: WE HAVE ZERO INDEPENDENT, UNBIASED, HONEST OVERSIGHT...
less than zero...
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Anonymous Coward, 24 Oct 2015 @ 4:00am

"In short, plaintiffs' assumption appears to be the product of reverse engineer; plaintiffs first defined the conclusion they sought--virtual certainty--and then worked backwards to find a figure that would lead to that conclusion."

This looks more like parallel construction than reverse engineering to me.
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MadAsASnake (profile), 24 Oct 2015 @ 6:10am

Basic set theory should be enough. They collect all communications. Wikipedia communicate information. Therefore Wikipedia information must have been collected.
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Anonymous Anonymous Coward, 24 Oct 2015 @ 7:28am

Maybe they are missing the target?
If the courts are going to continue to play the chicken and egg game, why not go after the ‘classified’ classification? We already know about the collection. We know who is doing it. We know several of the how they are doing it. We know who they are doing it to. What’s left to be classified? Create an argument that known stuff no longer needs classification and the government playing ostrich does not help their case. If they argue back that if they tell us they will have to kill us, well they are already doing that, but what law makes THAT constitutional?

I agree there are some legitimate uses in which standing should be arguable, but it should not be so difficult to attain standing in a case where everybody is affected, and it is so openly known that everybody is affected except for the government's rule that government employees may not cast their eyes on ‘classified’ information published in newspapers.
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Pixelation, 24 Oct 2015 @ 8:49am

Seems like you would need a release of information from the Backboners. I'm sure there is some sort of gag order, so it would need to be someone like a Snowden...
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Anonymous Coward, 24 Oct 2015 @ 10:39am

Re:
He doesn't have to be crooked. He just has to be more afraid of the inevitable dirt the NSA has on him than he is of his moral integrity.
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Anonymous Coward, 24 Oct 2015 @ 12:02pm

Re: whereas one trillion grains of sand are but a small patch of beach.
Yeah. Like Normandy.

I'm particularly impressed by this bit too:

'Mathematical gymnastics of this sort do not constitute "sufficient factual matter" to support a "plausible allegation."'

That is pretty much a bloviating version of: "LA LA LA, I can't hear you! LA LA LA!"

There is a difference between not having the evidence, and the judge being insufficiently literate to understand it. Perhaps the EFF should post their evidence online?
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Anonymous Coward, 24 Oct 2015 @ 12:55pm

Re: Re:
What Wikipedia really needs to get standing is a case or example where confidential information from Wikipedia actually gets used.

Which is something the government goes to great lengths to hide via "parallel construction".

Until then, they have no standing, and the judge has made that perfectly clear. Just presenting an exercise in probability doesn't meet up to the legal standard to get standing.

Which is obviously what the government is counting on. It's like the court is saying "just because they shoot at you and miss doesn't mean they're trying to hurt you. Come back when you have some actual bullet wounds. Then you'll have standing. Maybe."
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Anonymous Coward, 24 Oct 2015 @ 1:09pm

Re: Re: Re:
"Until then, I'm going to let them keep shooting at you."
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Anonymous Coward, 24 Oct 2015 @ 1:50pm

Imho
First of all, please correct me if I'm wrong.
So as I understand it the court said there is no evidence because the things they need to create evidence is secret and if there was evidence at all the FISA court would know about it and FISA court made it illegal and therefore it would not exist.
But at the same time the FISA court only has information given to them by the NSA. They are as I understand it told what is going on by the people who do those things. Now if a court would only accept evidence given to them by the bank robber they are prosecuting wouldn't that make the whole process kind of pointless? Of course the person will them that they bought a gun but only for protection and yes they did have a look at the bank security but they wanted their money to be safe. Those things are legal and therefore the bank robber did nothing wrong.
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AC, 24 Oct 2015 @ 2:19pm

so, what is next?
When the judiciary is a corrupt arm of the corrupt executive branch, cheered on by the utterly corrupt legislature, and people have no legal recourse in seeking redress of grievances, what is the predictable, inevitable, outcome?
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TDR, 24 Oct 2015 @ 3:40pm

Sue the judge?
I wonder if they can sue the judge for corruption and insufficient understanding of how the process really works in all its corrupt eays
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Anonymous Coward, 24 Oct 2015 @ 5:37pm

A few words in defense of the NSA
An act of surveillance is only as relevant as the event it subsequently manipulates. By comparison, the events that result from targeted advertising and commercial surveillance are (cumulatively speaking) probably worse that anything the NSA does. The modern grassy knole takes place in conference rooms in modern telecoms and marketing firms.

It really doesn't matter what the NSA watches as long as the surveillance itself remains illegal. If you want to work at the NSA, that's the risk you take.

In terms of the corrosive effect on the rule of law: it is the formalization of surveillance, not the actual surveillance itself that is the problem. People create the tyranny, not equipment or data.

Personally I think the judge made the NSA MORE exposed not less. The commercial perpetrators are still operating openly and the NSA is still getting most of the blame. Perhaps they should stop doing that.

The NSA is always going to be a risky job. They should abandon the idea that this stuff is ever going to be formalized. Take a few lumps, expose the commercial interests that are using this technology to abuse the Constitution, and advance the cause of liberty.

Like the song goes: "We went down to the demonstration, to get our fair share of abuse". We all have to take our lumps for democracy to work. There is a price to be paid here. Sooner is cheaper.
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That One Guy (profile), 24 Oct 2015 @ 6:20pm

Re: Re: Re:
Which is obviously what the government is counting on. It's like the court is saying "just because they shoot at you and miss doesn't mean they're trying to hurt you. Come back when you have some actual bullet wounds. Then you'll have standing. Maybe."

Worse actually. The judge flat out dismissed the government's own claimed goal, so it's more like the judge telling them "Yes they might have shot at you, and yes they might have winged you, but that's still not evidence enough that they were targeting you. Come back when they've given you a fatal wound, and I'll consider allowing the lawsuit."
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Anonymous Coward, 24 Oct 2015 @ 6:24pm

Re: A few words in defense of the NSA
By comparison, the events that result from targeted advertising and commercial surveillance are (cumulatively speaking) probably worse that anything the NSA does.

The NSA is part of an organization that uses the NSA to help identify people to assassinate.
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Anonymous Coward, 26 Oct 2015 @ 6:31am

Re:
LOL. Ya'll are proven wrong, yet again, with this "oh woe is me, everybody is 'spying' on me" nonsense and you STILL do the whole tinfoil hat garbage and you wonder why we all laugh at you.

Never change, Techdirt.
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Anonymous Coward, 26 Oct 2015 @ 6:39am

Re:
Isn't it strange how even when presented with facts and reality, the anti-NSA idiots STILL push ridiculous conspiracy theories and wear their tinfoil hats snuggly?
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Wendy Cockcroft, 26 Oct 2015 @ 7:02am

Re: Re:
You may find that the "camps" are prisons and that prison work pays well, so good luck with that.

Oh, and if you dare complain about these neoreactionary policies, the old familiar cry will ring out across the land:

"You must be a liberal socialist!"

As long as Americans continue to buy into that partisan B.S., don't expect change to come any time soon.
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David, 26 Oct 2015 @ 7:08am

Re:
The only solution is Encrypt Everything. You can now no longer assume your over-the-wire communications are not being watched every single transaction. It make not completely protect your privacy against unconstitutional surveillance, but it will help.

How much longer until companies and other places just flat out block port 80?
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David, 26 Oct 2015 @ 7:10am

Re: Imho
I'm still struggling with how the FISA court is constitutional at all.
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icarusthecow (profile), 26 Oct 2015 @ 7:17am

I don't like it, but the case is weak.
Forgone conclusion of an assertion that "everybody" is being spied on, and a slide that talks about the importance of http with logos of some major websites...
Sad to say, but in a court of law that's a pretty weak set of evidence to show standing. (everybody agrees with us and look their presentation has our logo!) Granted I believe that Wikimedia does have standing, just that they fail to prove it here.
On the other hand, the judge ruling that such circumstantial evidence can be proof would lower the bar in plenty of other cases to allow standing on more vexatious lawsuits.
While it's disappointing to see the NSA continue to avoid any accountability by hiding any evidence of their abuses by exploiting national security exemptions to transparency, I can't exactly disagree with the courts deciding to not throw out the burden of proof requirement to show standing, as it would set a bad precedent.

Hopefully, they'll be able to find better more concrete evidence to present that will finally prove what we all know.
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John Fenderson (profile), 26 Oct 2015 @ 7:56am

Re: Re:
"You can now no longer assume your over-the-wire communications are not being watched every single transaction."

Not strong enough.

You can assume that every byte you send online is being watched by somebody (and usually many somebodies) that you don't intend.

Because that's the truth.
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John Fenderson (profile), 26 Oct 2015 @ 7:59am

Re: Re:
"What Wikipedia really needs to get standing is a case or example where confidential information from Wikipedia actually gets used."

So in other words there is no possible way to address this problem through the legal system. That seems like a very dangerous thing if your interest the legitimacy of government.
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Anon, 26 Oct 2015 @ 4:53pm

Re:
Add the judge to the lawsuit, on the grounds of corruption. Judges who write these sorts of transparently bogus opinions belong in prison. Impeachment would be sufficient, but Congress is broken.

When we win back Congress we will have to mass-impeach judges.
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Anonymous Coward, 30 Oct 2015 @ 4:19am

Re: Re: Re:
Youtube has 6 hours of video uploaded every 5 seconds.

205 000 posts to facebook every 5 seconds.

17 million e-mails sent every 5 seconds
https://www.youtube.com/watch?v=82NQNeSFJcg

Every byte being watched by somebody? Impossible. Collected and stored? No doubt.
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