back to article Slurp away, NSA: Mass phone data collection IS legal, rules federal judge

A US federal judge has ruled that the NSA is within its rights to harvest millions of innocent Americans' telephone call records under Section 215 of the Patriot Act – and that the dragnet is fine under the Fourth Amendment since the data was collected by a third-party telco, not the government. The decision kicks the debate …


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  1. Combat Wombat

    I am jacks complete lack of surprise

    Just watch it get ruled legal on the top level too.

    1. Crazy Operations Guy

      Re: I am Jack's complete lack of surprise

      Why would you disagree with the man that controls your promotion?

      Who ever thought it was a good idea for the president to be the one to nominate judges for the supreme court?

      1. Irony Deficient Silver badge

        20-20 hindsight

        Crazy Operations Guy, it’s not particularly likely that the president who appoints you to a position in the judiciary will still be in office when an opportunity for promotion arises — the top offices typically open up only after retirement of an officeholder at a relatively advanced age, if not upon an officeholder’s death.

        See Federalist Papers #76 and #77 for Hamilton’s justification of the presidential nomination and senatorial approval for Supreme Court justices. Your preferred alternative method for nominating and approving such justices in a society of the late 18th century might be found in some of the Anti-Federalist Papers, e.g. Federal Farmer’s letter XIII.

    2. g e

      Re: I am jacks complete lack of surprise

      I stopped the Sun exploding last week.

      That's all I can say though, everything else is classified.

  2. Anonymous Coward
    Anonymous Coward

    Judge Pauley is clearly a wanker of the first order.

    1. Anonymous Coward
      Anonymous Coward

      As is everyone who disagrees with you, no doubt.

      1. g e

        Only the Anonymous ones

    2. BillG

      Judge Pauley is clearly a wanker of the first order.

      In his ruling Judge Pauley said that surveillance techniques such as those deployed by the NSA were necessary to stop terrorism, citing three cases where such data had been used to stop bomb attacks on the New York subway system, stock exchange, and other targets.

      It had already been proven that the bomb attacks on the NYC subway system were stopped solely by the hard work of NYC police detectives, and not, as Obama claimed in his speech, by NSA snooping. It was the example that blew Obama's credibility on this.

      Judge Pauley is CLEARLY a wanker of the very first order. And a tool.

    3. Anonymous Coward
      Anonymous Coward

      He is so full of it that it is not even funny. If anything Al Qaeda is _LOW_ tech.

      Granted my personal standards are a bit high here - I have done an MSc in Chemistry including the thesis itself in organic synthesis, I nearly finished a second MSc in mol biol/microbiology too (got publications from both). This was in the days when toxycology was studied from chemical weapons perspective and we had to know how to synthesize them (I still do). I have also done anything and everything (except transmission) in computers and telecoms for more than 25 yearts - security, network design, software - you name it.

      So by these proper professional standards they are a bunch of incompetent cavemen that cannot even produce a proper reliable and reproducible bomb design. They have not produced a single reliable means of activating a bomb remotely via telecoms with the exemption of Madrid where a Bulgarian engineering dropout did it for them in his spare time. Just as a basis for comparison - even the most primitive guerilla groups in South East Asia have been able to do this for ages.

      Biological weapon? Nuclear weapon? Secure communications? His honour is smoking something really kewl and he is not f*** sharing. Alternatively he is believing the media and judging by media, not by evidence which AFAIK is a firing offence in his position.

      1. Ian Michael Gumby


        Sorry dude, you're way off base.

        One of the reasons Al Qaeda is LOW TECH is due to the fact that they know that the US can target them via their use of phones and radios.

    4. Ian Michael Gumby

      @moiety re: "Judge Pauley is clearly a wanker of the first order."

      Actually Judge Pauley is correct and its Judge Leon who's a wanker of the first order for trying to legislate from the bench.

      Here's the crux of the problem...

      The NSA in setting up this sweep, relied on Smith v. Maryland where SCOTUS determined that Smith had no expectation of privacy to the call log information because that information is used by the company to conduct its business. So as long as they collected the data, kept it in a secured repository and didn't attempt to merge this data with other data sets that contained PII, they would be working within the law.

      And that's what they did.

      Add to this that the telephone/internet companies that provide telco / VOIP services also resell and share this data to third parties, you have even less expectations of privacy because they tell you that they are going to do this.

      If your argument is that its the NSA and they shouldn't have this information, please keep in mind that the NSA could have purchased this information, making the entire lawsuit a moot point.

      And here's the irony. The odds are you have a google email address, and an android phone. You're providing this information and much more to google every day. Yet I don't hear you screaming about your loss of privacy and your rights to personal freedom.

      Pauley is applying the law correctly where Leon ignored case law and went on a tangent of what the NSA could have done, but didn't with the data.

      If this goes to SCOTUS, they will uphold what the NSA did do.

      You may not like it. The majority of the commentards may not like it. But its the law.

      Personally, I think if you're going to go after the government, you should go after the likes of Google and others who have been snooping on you for years and force them to remove you and your machines from their databases at any and all times.

      1. Anonymous Coward
        Anonymous Coward

        Re: @moiety re: "Judge Pauley is clearly a wanker of the first order."

        @Ian Michael Gumby. Sorry, but I think you are incorrect - This would seem to come under 'unreasonable search and siezure'; not that the US-ians seem to be paying much attention to the Constitution these days. It should be illegal, but I fully expect the NSA to weasel their way out of it with loopholes.

        "And here's the irony. The odds are you have a google email address, and an android phone. You're providing this information and much more to google every day. Yet I don't hear you screaming about your loss of privacy and your rights to personal freedom."

        I do have a Gmail address, used only to Gchat with clients that will only communicate that way (I'm told there is another way of doing things, though so that'll be going in the new year); and I do have an Android device that is used only for email (my server) and books (offline) and has never had a Google Playstore or any other Google account. In my day-to-day surfing, I use Ixquick and DuckDuckGo and don't use any Google services; and try and prevent them tagging me with the likes of NoScript and Ghostery. Furthermore, a quick browse of my commenting history will find much bitching about loss of privacy. So -counter to your implication- I do try to practise what I preach insofar as it's possible and without it becoming an obsession. Of course, it's ultimately futile because every other bugger uses google services, but I do try to throw a spanner in wherever possible.

        This harvesting of data will almost certainly continue; whether it's shot down in the Supreme court or not; but it is unconstitutional and *should* be illegal. It's data rape and they don't (and never will have) my permission to harvest my shit. I'm not frightened in the slightest of terrorists...there's significantly more chance of me being killed by toddlers, soft furnishings or lightning to name three, and much more chance of being offed by my own shower. Or by the police, come to that.

  3. Eduard Coli

    Wonder what they had on Pauley?

    Jodge Pauley should be pulled from the bench so he can have some time to read the Constitution.

    The survellience is not about security, its about the dirt and how much money a given agency and their pet subcontractor can make on it.

    1. Anonymous Coward
      Anonymous Coward

      Re: Wonder what they had on Pauley?

      Judge Pauley's interpretation of the Ten Commandments, no. 8: Thou shalt not steal, unless a 3rd party contractor does it for you.

  4. Anonymous Coward
    Big Brother

    Yay for the survillance state!!

    Hopefully this will get overturned on appeal, but now we will have appeals going in the DC and New York circuits. Unless those two circuits both decide the same way, this is definitely going to the Supreme Court. If they both decide the same way, one way or the other, then the odds of it going to the supremes drop dramatically.

    Guess I will have to move some of my charity budget to buying an EFF membership.

  5. Paul Crawford Silver badge


    " nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil"

    9/11 attack deaths = 2,977 (+ 19 hijackers)

    US road deaths = 34,080 (for 2012)

    US Gun related deaths = around 32,000 (of those, around 60% are suicides).

    Really, it is OK to do ANYTHING in the name of anti-terrorist actions, but damn all about the real killers?

    1. Gene Cash Silver badge

      Re: Bollocks

      Isn't it amazing that something designed solely to kill things, can't hold a candle to the American driver's ability to wipe life off the planet?

      (Full disclosure: I have a gun myself, and it's purpose is to keep me out of the horrid American "medical" system should I suffer a stroke or blindness or something like that)

      1. dmck

        Re: Bollocks

        Having a gun won't help you if your trigger finger(s) are affected.

        Better using a fork, pointing at your eye and then just falling on it. Four pronged attack.

    2. b0llchit Silver badge

      Re: Bollocks

      US population ~317*10^6

      Life expectancy ~78.4 years

      Deaths per year: > 4,040,000

      Most of these death are from old age. Therefore, by definition of severity, old age must be outlawed and banned for each and every person. It is an intolerable situation that we can accept so many death each and every year. A catastrophe happening each and every year, simply unbearable. It MUST be illegal and unconstitutional to allow so many people to die!

      1. Tom 7 Silver badge

        Re: Bollocks

        Increase in lives wasted hanging around in airports due to increased paranoia due to <3000 lives killed in 11/9 >3000 per annum.

        You are over 1000% more likely to die from being in an airport being checked out than dying in the terrorist attacks they are trying to prevent.

      2. Michael Wojcik Silver badge

        Re: Bollocks

        Therefore, by definition of severity, old age must be outlawed and banned for each and every person.

        Agreed! Also, we need more grandiose robots extracting protein from the sea.

    3. Charles Manning

      These numbers can be spun both ways...

      Sure, to you or me it is bollocks to hype up terrorism so much....

      ... but others can spin this the other way too:

      We've been able to keep terrorist deaths so low through being hyper-vigilant. We need to keep this up or the terrorists will get ahead. We make no excuses for saving so many American Lives.

      1. Eddy Ito

        Re: These numbers can be spun both ways...

        "In his ruling Judge Pauley said that surveillance techniques such as those deployed by the NSA were necessary to stop terrorism"

        It seems perfectly clear to me. We need this rock to keep tigers away, nothing else will do.

      2. Anonymous Coward
        Anonymous Coward

        Re: These numbers can be spun both ways...

        "We've been able to keep terrorist deaths so low through being hyper-vigilant".

        I always wear my tinfoil hat to ward off leprosy-spreading giant carnivorous squid. It's been ages since we had any of those in our neighbourhood, so obviously my technique works.

        Incidentally, this may well have been the thinking that led to so many primitive religions that involved human sacrifice and the like. It's reassuring to see that human thought processes haven't really changed since the Stone Age.

        1. Lapun Mankimasta

          Re: These numbers can be spun both ways...

          Personally I swear by this: I put condoms on crocodiles in Kakadu National Park, Northern Territory, and it keeps me safe from shark attacks in Death Valley.

          The Mullah Nasruddin used to throw breadcrumbs around his house in Kurdistan. He swore it kept the tigers away.

          It should therefore come as no surprise that tracking your ex's email via taxpayer-funded NSA snooping keeps other Americans safe from terrorists. I mean, it's fricking obvious, ain't it?

    4. John Smith 19 Gold badge

      @Paul Crawford

      You might like to add the 33 mass shootings in 30 years that the US likes to have when some of its more disturbed citizens decide to test out their "toys."

  6. Trevor_Pott Gold badge

    Legal != Moral

    Legal != Ethical

    Legal = People with guns force you to comply.

    1. M Gale

      = or ==?

      Or is it more of a ===?

      But that's just quibbling over syntax. Otherwise, yes.

      1. Vic
        Black Helicopters

        > Or is it more of a ===?

        I have a nasty feeilng it's more of a := ...


  7. TaabuTheCat

    He's right about one thing...

    " nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil"

    As 9/11 proved. We have fewer civil liberties now than ever before, and each additional attack, suspicion of an attack, the mere *thought* of an attack, and we lose even more.

    Hint to judge: It's not the terrorists taking away those liberties.

    1. Eguro
      Thumb Up

      Re: He's right about one thing...

      I read the article and came here to post this!

      You had already taken the words out of my mouth, before they had even started to form!

      Good show

  8. Pen-y-gors Silver badge

    Where do they find these judges?

    Escapees from the local funny farm?

    1. Lapun Mankimasta

      Re: Where do they find these judges?

      That is classified information. You are not supposed to know that. Report to the Factory ASAP, for a re-education course.

    2. Michael Wojcik Silver badge

      Re: Where do they find these judges?

      Duke U, followed by a brief stint in the DA's office, followed by a couple decades of private practice and representing state legislators (which is a good way to network and get noticed for a judicial position). Nominated to the district bench by Bill Clinton.

      Bill, of course, was no friend of civil liberties either. But then it's been a while since we had a president who was.

  9. Destroy All Monsters Silver badge

    What the FUCK am I reading from the berobed one?

    "Like the 911 Commission observed: the choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil," he wrote"

    Barring the fact that anyone citing the 911 Omission Commission, handpicked by the powers in charge to STFU and get with the program is suspect, we may paraphrase:

    "Fascists want more fascism and are eager to hang on to any moralpanictrain to reach their goals so we need more fascism to not let any moralpanictrain leave the station, which will undercut fascists."


    the choice between liberty and security is a false one

    Yep, apparently it is not false in the sense of "decreasing liberty will not increase security" but false because "we need less liberty to have more security". It is thus decided. You can now use Benjamin Franklin as a generator drive.

    I'm pretty sure that disgusting cockroach John "it's not torture if we do it" Yoo cannot be far behind with punditry and opinionating, leaving a trail of slime.

  10. Anonymous Coward
    Anonymous Coward

    I particularly liked this bit of reasoning.

    "Every day, people voluntarily surrender personal and seemingly-private information to trans-national corporations, which exploit that data for profit.

    "Few think twice about it, even though it is far more intrusive than bulk telephony metadata collection.

    So because some people choose to put their private lives on the internet, everyone can be spied on.

    That's some legal systems you Yanks have, a system which can basically say "FUCK ALL OF YOU WHO DON'T VOLUNTARILY SURRENDER YOUR PERSONAL INFORMATION TO TRANS-NATIONAL CORPORATIONS"

    What is the American Constitution worth then? As a Brit, it's not looking ike it's worth the paper it's written on, when your own Judges can rule its contents meaningless.

    1. Anonymous Coward

      @ obnoxiousGit

      I keep posting in NSA-related discussions here that there is a big difference between voluntarily providing data to a company whose services you can stop using at will, and on the other hand being forced to fund through government tax powers the mandatory intake of your data for surveillance and data mining.

      I guess that important distinction is still lost on society at large. :/

      1. Eguro

        Re: @ obnoxiousGit


        Did I miss something?

        Wasn't Marketing Hack agreeing with Mr. Obnoxious?

        I only ask because of the weird asymmetry in up/down votes...

    2. ecofeco Silver badge

      The Constitution was never really very strong to begin with and was finally euthanized by the War on Drugs and buried by Reagan's "free market deregulation.".

    3. Ian Michael Gumby

      @obnoxious git

      Here's the irony.

      You want to use the internet, you are tracked. Not by governments but by mega corps who act as if they are beyond the privacy laws set up by nations. But that's not the really ironic part.

      While everyone is be-itching about the NSA snarfing this data by mandating that they have a right to it... they could just as easily bought the data very cheaply from the very companies which are snarfing it with your permission.

      And if they bought the data. There isn't a damn thing you could say or do about it. These cases would be moot.

      Now that's the fscking irony.

      1. Anonymous Coward
        Anonymous Coward

        Re: @Ian Michael Gumby

        You seem to haver missed the scope of all of this.

        Unless of course you're suggesting Google, Microsoft, Yahoo! and the others are in cahoots with Verizon, and AT&T, and are analysing the entire scope of a individuals communications, internet based, PSTN and cell network based, and using that to decide who they'll lock up in a secure facility on the Northern Coast of Cuba, or who they'll target with drone launched hellfire missiles.

        Would you like to compare those private companies operations with military search and destroy missions again?

  11. Anonymous Coward
    Anonymous Coward

    Boo Hoo

    The sheeple should be glad the NSA has their back but they are too illiterate to even understand the programs.

    1. Franklin

      Re: Boo Hoo

      "The sheeple should be glad the NSA has their back"

      And their front, and up their skirts, too, I reckon.

      This "sheeple" is literate enough to understand that the risk of terrorism is far less than the risk of being hit by a drunk driver, but we don't use that as an excuse to let the police track every sale and use of alcohol that goes on in the country, nor to eavesdrop on every dinner table throughout the land.

      1. Anonymous Coward

        Re: Boo Hoo

        Ah yes, the "Sheeple" who are unreasonably concerned that the NSA is documenting who they are talking to and how long they are talking to them... And that the NSA and the Director of National Intelligence openly lie to the sheeple about doing this... And that the courts who authorize these programs and their authorizations are secret... And that this court has complained it doesn't have the resources to verify that the safeguards that are being handed down by the court are being reliably followed... And that the Justice Department has classified it's opinions on what these secret and half-enforced legal opinions allow the U.S. government to actually do... And that the oversight committees in Congress have demonstrated that they don't know about programs and operations that are in place... And that the rest of Congress is even more out of the loop... And that the President at the top of the chain of command for the NSA doesn't know what's going on.... And that the Prez throws back the inadequate judicial and congressional oversight described above as an example that everything is OK... And that the President empaneled a committee to look at all of the above and make suggestions, but so far it seems that the President is not going to accept the more far-reaching suggestions the panel came up with... And that the President had openly campaigned on reducing this kind of secrecy, before he got elected at least...

        Yeah, I don't understand what could possibly be bothering the sheeple about all this. You'd almost think that sheeple feel that there have been repeated breakdowns in representative democracy or something...

        1. John Brown (no body) Silver badge

          Re: Boo Hoo

          "You'd almost think that sheeple feel that there have been repeated breakdowns in representative democracy or something..."

          No taxation without representation, to coin a phrase.

          Maybe we could start by having a lawyer party. I know where there's a harbour...

    2. Michael Wojcik Silver badge

      Re: Boo Hoo

      Obvious troll is successful.

  12. Anonymous Coward
    Anonymous Coward

    I would be interested to see what the US Supreme Court makes of it.

    1. amanfromMars 1 Silver badge

      No Win Zero Sum Games are No Great Games to Play ..... and a Great Game MasterPlay

      I would be interested to see what the US Supreme Court makes of it..... Anonymous Coward Posted Friday 27th December 2013 22:54 GMT

      That decision, with the powers then tamed and/or unleashed upon America because of it, will either reboot and remake America or destroy it, from both without and within.

      1. Anonymous Coward
        Anonymous Coward

        Re: No Win Zero Sum Games are No Great Games to Play ..... and a Great Game MasterPlay

        Responding to one of the more lucid comments on the subject.

        This was never going to be easy. On the one hand, we have a heavily entrenched bureaucracy with almost unlimited powers and budget, on the other a cowed, submissive or indifferent citizenry. Hard to see what could go wrong. Maybe Benjamin Franklin was on to something after all.

        Given past American History and the current composition of the Supreme Court, I suspect the Supreme Justices will weigh in for the status quo with a slight majority by pleading legality. The war on terror has justified numerous excesses, all legally enshrined or interpreted within the scope of the Patriot Act. Similar justifications were used to deprive Japanese Americans of their liberty during WWII. Although comparing underwear bombers with the combined might of the Third Reich and the Japanese is a bit of a stretch, this is how lawyers, legislators and their friends can get bad policy and legislation passed. Now we are all living with it, for better or worse.

        Until the US has lost its war footing the Patriot Act will be used and abused again and again to justify all sorts of crap. I expect we will be unbuckling our belts and pulling off our shoes at airports for a long time to come. The real question here, is when will it stop? How many more civil liberties and little freedoms will need to disappear before the pendulum can swing back?

        And it is indeed very important to emphasize the difference between willingly disclosing one's private information (within limits) to companes like Google and having little or no say at all in what happens with our private information after it is sucked into the gaping maw of some faceless bureaucracy. I sincerely hope the EFF have good lawyers.

        Of course, we can always hope common sense will prevail and the parties that argue this case will successfully drive through the constitutional issues. Chilling effect and all that.....

        An alternative theory is that civil liberties and individual privacy will just die a slow and agonizing death.

        Or as the poet once put it:

        "This is the way the world ends, not with a bang but a whimper"

  13. Anonymous Coward
    Big Brother

    Three cases cited where attacks were stopped

    I don't suppose there's any way we'll ever get any real details on this to prove that assertion, but we (and the Judge) just have to trust the NSA when they tell us this?

    And we should trust them when General Alexander lied through his teeth TO CONGRESS on at least two occasions (that we know about) this year? Because they have no incentive to lie to keep this program, and the funding that supports it, in place....


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