Appeals Court Says NSA Can Keep Trampling 4th Amendment With Phone Surveillance Program For Now

from the keep-going-guys dept

Wed, Nov 11th 2015 3:22pm — Mike Masnick

This is hardly a surprise, but the DC Appeals Court has issued a stay on Judge Richard Leon's ruling from earlier this week that the NSA's bulk phone record collection program was unconstitutional. This is the same appeals court that overturned Leon's earlier ruling finding the program unconstitutional. This time, as we noted, Judge Leon refused to grant the government a stay, noting that the DC Circuit had taken its sweet time in actually issuing a ruling on the appeal -- and the program is set to end in a couple weeks anyway. Also, Leon didn't order the entire program shut down, but just that the NSA stop keeping the records of the plaintiffs who were customers of Verizon Business Network Services (J.J. Little and J.J. Little & Associates).

Of course, the DOJ ran to the appeals court, claiming (among other things) that their system couldn't stop collecting the metadata of those individual entities without shutting down the whole program and putting us all at risk of TEH TERRRORISTS!!!!!. Of course, in the alternative, it argued that J.J. Little still shouldn't have standing because there's no proof that Verizon Business Network Services (VBNS) is still a part of the bulk collection program. As Marcy Wheeler pointed out, these arguments are nonsensical. First, the system clearly has the capability to remove certain indicators, as the government has previously admitted it had to leave out things like pizza parlors that mucked up the connection data. Second, it's bizarre to argue that taking this one number out would let the terrorists win... while at the same time arguing that maybe the entire VBNS no longer participates in the program.

Either way, the appeals court wasted no time issuing a stay with basically no explanation other than "to give the court sufficient opportunity to consider the merits of the motion for a stay." Of course it says it's not a motion on the merits -- and it's not -- but given that the program is dead in a couple weeks anyway, it doesn't much matter one way or the other. Still, both sides have been asked to file additional arguments over the next few days.

Stay Order (PDF)Stay Order (Text)

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Filed Under: 215, 4th amendment, dc circuit, jj little, larry klayman, nsa, richard leon, surveillance

17 Comments

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Anonymous Anonymous Coward, 11 Nov 2015 @ 3:47pm

CYA
One bunch of Fed's covering up for another bunch of Fed's and the Constitution be damned. This is what we get when we let secret laws and secret courts with secret decisions continue without retribution.

Now the how and what of that retribution is definitely in question, and overdue.
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Kenpachi, 11 Nov 2015 @ 3:51pm

Well that was conveniently fast...
This is the Appeals Court clear attempt to have a pissing contest with Judge Leon.

Before, it took them two whole years to reach a decision, and now it took them two days...

Please someone remind me again what was all those pesky entries in the Bill of Rights about some amendments or something?
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- Anonymous Coward, 11 Nov 2015 @ 7:54pm
  
  Re: Well that was conveniently fast...
  They didn't make a decision. They merely decided to put in a stay while they decided. Most likely they'll declare it moot in a few days anyway.
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  - Anonymous Coward, 11 Nov 2015 @ 8:15pm
    
    Re: Re: Well that was conveniently fast...
    They didn't make a decision. They merely decided…
    
    May I quote you on that?
    “They didn't make a decision. They merely decided.”
    That just sums things up so very perfectly. I wish I had written that. I mean, I could use a line like that in a work of fiction.
    
    Bitter, slashing fiction.
    
    “They didn't make a decision. They merely decided.”
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    - Anonymous Coward, 11 Nov 2015 @ 9:06pm
      
      Re: Re: Re: Well that was conveniently fast...
      According to the court, "The purpose of this administrative stay is to give the court sufficient opportunity to consider the merits of the motion for a stay". So, yeah, I think it does sum it up pretty well, and I have no objection to anyone using that line.
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    - Anonymous Coward, 11 Nov 2015 @ 10:10pm
      
      Re: Re: Re: Well that was conveniently fast...
      You win the prize for disingenuous, sophomoric semantic criticism. Brilliant display of douchebaggery.
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      - Anonymous Coward, 12 Nov 2015 @ 6:33am
        
        Re: Re: Re: Re: Well that was conveniently fast...
        Or, it pointed out silly semantic bullshit apologist behavior.
        We spew - you decide.
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Ehud Gavron (profile), 11 Nov 2015 @ 4:05pm

Government by the people...
It is not longer government by the people or for the people.
If it ever was.

Washington is filled with corrupt self-dealing swindlers who line their pockets with taxpayer funds either directly or indirectly (from lobbyists who then get taxpayer-funded programs handed their way).

Each year they get more brazen, more blatent in their thuggery and their evisceration of our rights, and in their theft.

It's only a matter of time before the sheeple who bleat "Baahhh (D)" or "Bahhh (R)" wake up to the fact that whatever letter you claim as your "party", the real party is in DC and you're not invited.

E
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- Anonymous Coward, 12 Nov 2015 @ 6:34am
  
  Re: Government by the people...
  It's only a matter of time before the greedy shits destroy their golden goose.
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Jeremy2020 (profile), 12 Nov 2015 @ 10:11am

uhh...does anyone actually believe that it's going to be dead in 2 weeks? They'll just rename it and be like, oh, it has a new name. You shut down spying program, PRISMATIC SUPERSTAR, you didn't say anything about PRISMATIC SUPERSTAR2.
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- John Fenderson (profile), 12 Nov 2015 @ 2:38pm
  
  Re:
  Yep. Just like how all of this used to be called Total Information Awareness until public outcry made them stop doing it. Of course, "stop doing that" means it was broken into pieces and renamed, not that it stopped.
  
  This sort of thing is a big part of why eternal vigilance is necessary.
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wallymae, 12 Nov 2015 @ 8:36pm

oh?
Why even write this as news? We already know the outcomes of gov rulings. None of them can be judged by the ones that own you.
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That One Guy (profile), 12 Nov 2015 @ 11:38pm

Stalling tactics
Seems to me the appeals court is being pretty blatant in their intentions here. They stall as long as possible, then once the program in question 'shuts down', they rule that since it's no longer active, the case is now moot, and dismiss it on those grounds.

And just like that, it doesn't matter what possible legal gains might have been achieved, the entire exercise is rendered pointless, leaving no pesky precedent for when(not 'if') the next program that does the exact same thing is discovered and makes it to the court, forcing the public to start over from the very beginning. Again.
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rematik, 8 Sep 2016 @ 11:43pm

just life
And just like that, it doesn't matter what possible legal gains might have been achieved, the entire exercise is rendered pointless, leaving no pesky precedent for when(not 'if') the next program that does the exact same thing is discovered and makes it to the court, forcing the public to start over from the very beginning. Again.
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