The actual judgment: <a href="http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf" rel="nofollow">http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf</a><p>From the ruling:<p>> <i>Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments.</i><p>It appears that the government is starting to lose the ability to always dismiss constitutional rights abused on "state secrets" grounds. Which is great! Finally, we can actually start to hear the real legal justifications for these mass surveillance programs and watch them start to crumble when they are put forward in a adversarial court. However, organizations like the ACLU and the EFF need funding to be able to dismantle these illegal programs. I recommend signing up for a monthly recurring donation of $19.84.<p><a href="https://www.aclu.org/donate/" rel="nofollow">https://www.aclu.org/donate/</a><p>Also, this will give significant weight to the Fight 215 coalition (<a href="https://fight215.org" rel="nofollow">https://fight215.org</a>), which this ruling is directly related to.
Pre-Snowden, I wonder if the ruling would have been different. Back then the judges would only know what was presented to them. The government would have obviously presented in a way that was most favorable to them, and their opposition would not have access to crucial evidence.<p>Now that the cat shit is out of the bag, judges and everyone else have more background to evaluate what's in front of them. The government would still present in a way favorable to them. But a judge would now more fully understand the significance of what's presented to him. We live in the world, and we bring our entire experience to bear when we evaluate.<p>Thank you Snowden. Fuck you NSA.
Here's the actual decision: <a href="http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf" rel="nofollow">http://pdfserver.amlaw.com/nlj/NSA_ca2_20150507.pdf</a><p>Concurrence by Judge Sack: <a href="https://www.aclu.org/sites/default/files/field_document/clapper-ca2-sack-concurrence.pdf" rel="nofollow">https://www.aclu.org/sites/default/files/field_document/clap...</a><p>Here's what struck me as the most interesting comment from Sack - "Considering the issue of advocacy in the context of deliberations involving alleged state secrets, and, more broadly, the ʺleakʺ by Edward Snowden that led to this litigation, calls to mind the disclosures by Daniel Ellsberg that gave rise to the legendary ʺPentagon Papersʺ litigation."
Now it would be the right time to ask for a presidential pardon for Edward Snowden. Now that candidates are gearing up their campaign platforms, it would be a great vote winner both on the left and on the (libertarian) right. If you live in a "defining primary" state, please go and ask the candidates as soon as they show up.
Key thoughts.<p>It is always important to remember that the Section 215 progam is not a significant authority under which the government conducts surveillance on US citizens. The metadata program is a little used program and the data is not co-mingled with the larger XKeyScore dataset. As a result, the IC does not fight as hard to protection Section 215 authority as it does more significant surveillance authorities.<p>Because the Section 215 authority is expiring, the IC has every opportunity via the Freedom Act to create stronger statutory authorities under the guise of reform. Straight expiration of the abuse 215 authority is the strongest reform message.
Read the concurring opinion from Judge Sack. He calls into question the entire FISA court's non-adversarial process, comparing it to the proceedings against the New York Times during the Pentagon Papers era:<p>His concurring opinion starts at page 98.<p><a href="http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18b-410f-bc84-dc405525f9cd/1/doc/14-42_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18b-410f-bc84-dc405525f9cd/1/hilite/" rel="nofollow">http://www.ca2.uscourts.gov/decisions/isysquery/cb3868fe-b18...</a>
Today's ruling should be a lesson for future NSA/CIA/DOD/FBI/etc. leakers: get your hands on those original documents. Telling reporters about illegal activity, without those documents, isn't enough.<p>We've known about the NSA's illegal domestic surveillance of Americans' phone records via leaks for almost a decade. USA Today disclosed it in May 2006, and there were congressional hearings, etc. (I wrote about it for CNET at the time as well): <a href="http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.htm" rel="nofollow">http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.h...</a><p>But it wasn't until Edward Snowden leaked the actual secret court orders -- which the executive branch was forced to acknowledge were legitimate -- that the lawsuits could be filed, which resulted in today's ruling that the domestic surveillance is illegal. (The court held that NSA's phone "metadata program exceeds the scope of what Congress has authorized and therefore violates §215.")<p>Three other thoughts:<p>* What's been made public about the Patriot Act 215 metadata program refers only to metadata collection of Americans' phone calls. There's no reason to think that 215 domestic surveillance is limited to phone calls -- phone companies including VZ, AT&T, etc. rolled over for the Feds on phone metadata. Why wouldn't they turn over <i>email</i> metadata as well? (DOJ previously confirmed that 215 "has been used to obtain driver's license records, hotel records, car rental records, apartment leasing records, credit card records, and the like.") <a href="http://www.justice.gov/nsd/justice-news-0" rel="nofollow">http://www.justice.gov/nsd/justice-news-0</a><p>* DNI James Clapper lied to Congress about the existence of NSA's 215 phone metadata vacuum. I wonder how things would have turned out differently if he had told the truth? (On the other hand, he never got fired for it and still has his job.)<p>* Now that an appeals court has ruled that NSA illegally used Patriot Act 215 to vacuum up Americans' phone metadata, I guess we don't need to worry about renewing it?
Is it weird that anti-surveillance court rulings don't really make me feel better? If they'd not only lie to Congress, but ACTUALLY SPY ON Congress, what is a judge going to do to stop them?
Can somebody explain how a constitutional challenge could be dismissed under the pretext of "it was authorized by Congress"? Isn't the whole point of a constitutional challenge to address things illegal things authorized by the government?
<p><pre><code> Thus, the government takes the position that the metadata
collected – a vast amount of which does not contain
directly “relevant” information, as the government
concedes – are nevertheless “relevant” because they may
allow the NSA, at some unknown time in the future,
utilizing its ability to sift through the trove of
irrelevant data it has collected up to that point,
to identify information that is relevant.
</code></pre>
Just dripping with hubris! I am just gobsmacked at the audacity of such a claim.
What does this mean for:<p>1) the Patriot Act's renewal/new bills to extend/enhance it<p>2) the USA Freedom Act<p>Is the USA Freedom Act "compatible" with this decision, or does it allow the NSA to do some things that the Court here has just banned?
While this outcome is encouraging, any other outcome from this case would have been absolutely shocking. Even the actual author of the "Patriot Act" is on the record that section 215 is being interpreted incorrectly: <a href="http://venturebeat.com/2013/06/06/nsa-patriot-act/" rel="nofollow">http://venturebeat.com/2013/06/06/nsa-patriot-act/</a>
A few questions this raises for me. If the government does something illegal who is held accountable? Also, where does this leave Snowden? He essentially blew the whistle on a program finally deemed illegal.
This is a wonderful bit of news, but I fail to see how it will change anything.<p>The spymasters will cry "terrorism!" and Congress will either be bought or intimidated into submission. Again.
I'm sure the NSA is laughing at the judge and his decision. "How many divisions does he have? Bwa-ha-ha-ha." <a href="https://en.wikiquote.org/wiki/Joseph_Stalin" rel="nofollow">https://en.wikiquote.org/wiki/Joseph_Stalin</a>