ANOTHER US court smacks down EFF's NSA wiretap sueball – but won't say why A California court has once again upheld the legality of the US National Security Agency's Bush-era mass telephone surveillance program, but has withheld its reasoning on grounds of national security. In a ten-page ruling [PDF] on Tuesday, US District Judge Jeffrey White of the Northern District of California said that the …
A California court has once again upheld the legality of the US National Security Agency's Bush-era mass telephone surveillance program,
Ah, well, I guess the implication here is that it's all right for Obama to do this, then.
Oh, wait, Obama is the one that says he doesn't need warrants...
EFF: Today's ruling in Jewel v. NSA was not a declaration that NSA spying is legal. The judge decided instead that "state secrets" prevented him from ruling whether the program is constitutional.
Reg: A California court has once again upheld the legality of the US National Security Agency's Bush-era mass telephone surveillance program, but has withheld its reasoning on grounds of national security.
Good question. I guess it depends on your point of view. The sum result is that we're screwed. The court can't rule, a trial will get tossed, and the secrets remain secret. The people have lost this round. The bigger question right now is, how many times to the people have to lose before they say "enough" and take back the country? Or will they/we even try? It doesn't look good.
The EFF is splitting hairs to save face. El Reg got it right.
The law takes effect once passed by Congress and is either signed by the President or Congress overrides his veto. It is in effect until such time as it is repealed or overturned by the courts. So a failure to rule upholds the law.
Not making a moral judgement, this is how law is reasoned.
"Trust us".
Seems to be a broken record somewhere there. (Our copy is on repeat here in Australia too and I know it's also a fan-favourite in the UK.)
The amazing part about all this is that, taking them at their word, these surveillance programs are there because anyone could be up to no good and thus they must hoover up everything, just in case. In other words - it is the position of our governments that we're all suspicious and not to be trusted.
And yet apparently, while they 'justify' blanket surveillance by the idea that anyone in the public could be acting against the interests of the country, it's impossible that any of the 'elected' officials or their unelected employees in the various intelligence services might be acting against those same interests.
The reason is that the edifice of government and the attendant security agencies have it in their heads that their interests are, by definition, the country's interests.
One might argue - as they do - that these programs help keep the US safe, but is it really in the best interests of the people if that safety is achieved by disregarding the most important and fundamental legal document and the one on which the entire system is supposedly based?
Should those freedoms really be contingent on whether the government makes 'a compelling argument' in secret?
@JahBless
". . . the same old guys."
You mean politicians?
The primary problem is that running a country is massively complex, even in some fictional isolation. Add in geo-political realities and it gets harder still.
Despite some examples, you just can't run a country if you ask every individual their opinion on everything - it just won't work. By the same measure, governments nearly inevitably run roughshod over the wishes of the people due to the fact that they don't have to ask them.
I mean sure, you can vote someone out, but that relies on the the other person/group having an opposing view, which is absolutely not the case* with these types of situations. It also relies on the opposition actually reversing the laws when they get voted in, and that simply doesn't happen, even if they did oppose them at the time.
What you need is a system that allows governments to get on with the job but has provisions to allow the people to interject (for want of another term) and say: "wait on . . . let's think about this". I don't know exactly how that would work in practice but certainly the advent of widespread connectivity can help lessen the burden. Once something has registered as a concern for enough people - and it shouldn't be HUGE numbers as we must expect that only a fraction of the people who actually want something done will ever actually say something (in any sphere, not just politics) - then a more formal process MUST take place, in which the people are given a say.
Again, how - exactly - this would work is not all that easy to envision, not least of all because simply registering an objection to something - say, the TPP - does not imply what should be done about it.
In the end, the IDEA of a representative democracy is that the elected officials rule on behalf of, but solely by the agreement of, the people. The assignment of 3-4yr 'terms' in which an elected official serves prevents much waste of public money but causes a problem that once elected, a government may largely do whatever the hell it wants before it has to answer to the people. A government can, with full legality, promise to do one thing before an election and do the exact opposite after it is elected.
So, there really needs to be some kind of mechanism to address those two situations: the first, that not all positions are adequately represented by the electable officials and thus one might feel very strongly for or against some policy but have no way to cast a vote reflective of that. And the second, that even if a candidate or party does profess to reflect your views, there is ABSOLUTELY NO ASSURANCE that they will continue to do so if elected, or to oppose the elected party from opposition, if not.
Of course, there will alway be difficult situations where secrecy is genuinely important, but this is can be viewed as similar to when, person-to-person, someone says "trust me" or "close your eyes". In other words, trust must be earned and, once lost, is very difficult to earn back.
Our politicians have lost the trust of the people many times over.
At the best, they actually believe they are functioning in the interests of the people. If so, then (again) at best they are somewhat out of touch with those same people and we are back to them needing input to adequately represent their wishes.
Or, you know, they could just go on as they have for hundreds, of years: buying power with money and favours and utterly failing to be even the slightest bit concerned that they are ignoring the well-being of the people from who they, ostensibly, get their 'mandate'.
* - At least in the three main countries The Register has offices in - the UK, US and Australia. (Apologies if Lester's local counts as an office.)
@dan1980: "What you need is a system that allows governments to get on with the job but has provisions to allow the people to interject"
This is exactly the Swiss system. A pretty small number of voters' signatures are enough to get an issue put to a national referendum. Every 3 or 4 months there are a whole bunch of referendums, some local/cantonal, some national/federal. Sort of like US ballot initiatives except at national level. I'm not sure of exact details but i think an initiative needs majority of both population and individual cantons. If an initiative passes, the government is obliged to legislate accordingly* within a given timeframe of a couple of years I think.
Typically any radical proposal will bring out the big guns of advertising with all sorts of scaremongering and straw men to scare people to vote for the 'desired' result, so very often the result (Yes-No) desired by government and/or big business (basically, who can pay most for the adverts) is achieved. However occasionally the people's view vs the government is in a majority.
HOWEVER I have no idea if there are any national security exemptions, and if so, who is allowed to trigger them and how. So, maybe still imperfect but a little less imperfect system.
One last note, this sort of frequent large-scale voting probably could have been paralysing for a big country until recently, but with modern encryption / trusted certificate technology it might be feasible to have these things organised en masse at a fraction of the cost.
*I'm not sure what safeguards there are if government refuses to do so, I guess ideally there should be some
You can't figure it out because you and the rest of your liberal ilk threw out the Constitution a long time ago. Held to it's proper small sphere the federal government wouldn't be a problem. When we started out the feds handled national defense, interstate trade disputes and a few other things. Law enforcement was strictly from States, counties, and cities. If that were still the case, even TPP as passed wouldn't be the problem it is, because 95% of law enforcement activity would not be impacted by it. It's only the total integration, of the federal government into every other level of government that yields the danger.
"... just need to stop voting in the old same guys..."
I agree, but where are the alternatives?
It seems to me that as soon as one lot get elected their civil servants come in with a tray of papers and promptly co-opt the aforementioned electees into the "Establishment" They all seem to go native.
For example, when was the last time that you saw a libertarian Home Secretary? No, they all adopt an authoritarian approach handing out diktats backed by draconian threats and penalties. Who would have thought that the likes of Jack Straw or John Reid were members of the Labour party? You know, the one supposed to be on the side of the workers. A Tory Home Secretary bludgeoning the lower class is to be expected but the same from the "Party of the People"?
One could follow the advice of Russell Brand "Don't vote, it only encourages the bastards." But that does not solve the problem. Perhaps if we could clean out the upper ranks of the Civil Service and disband the "Establishment" we might have a chance, but I'll not be holding my breath as they have all the levers of power in their hands and we are but dust beneath the wheels of their chariots.
"[...] when was the last time that you saw a libertarian Home Secretary?"
Roy Jenkins?
Wikipedia:
"As Home Secretary from 1965–1967, he sought to build what he described as "a civilised society", with measures such as the effective abolition in Britain of capital punishment and theatre censorship, the decriminalisation of homosexuality, relaxing of divorce law, suspension of birching and the legalisation of abortion. "
"Don't vote, it only encourages the bastards."
Surely that is the WORST tactic? If the sensible people don't vote the future will be decided by those who did vote. . . or maybe a communist/BNP coalition (or whatever horrible mutation arises) might work? Hmm, hope only goes so far.
"Don't vote, it only encourages the bastards."
Surely that is the WORST tactic?
Exactly, that's why I said that abstention was a bad idea.
After all, hypothetically if the only person voting was the candidate plus friends then one of the "bastards" would get elected. Time for a "None of the above" choice on the ballot paper in my opinion.
Not anymore. The exact date of its death is in question. Some trace it to Roe v Wade, some to Miranda v Arizonna, others to Brown v Board of Education, still others to Plessy v Ferguson. A few people even trace it back to Marbury v Madison. But which ever case you want to pick, how SCOTUS votes is now more important the actual words of the Constitution itself.
What's the point in it if a bunch of judges, who are appointed by politicians, get to overrule it?
There's nothing like a story about US court cases to bring out the naiveté.
The US Constitution does not possess the power to make and enforce decisions itself. Someone has to interpret it. Various gangs claim they have the One True Interpretation, but all such claims are patently spurious, founded on sophomoric intentionalism and a touchingly simplistic understanding of human language.
Tom, upthread, is waving the flag of Strict Construction or Original Intent or one of the other chest-beating schools of narrow constitutional interpretation. Those aren't majority opinions even among the educated US populace, much less constitutional scholars or legal experts. They're not quite fringe beliefs but they certainly don't represent the shared dream of a downtrodden people under the thumb of a tyrannical SCOTUS.
More importantly, no nation-state government actually functions in accord with the theoretical ideal on which it is based. The world is complicated, and complicated problems do not tend to have simple solutions.
How can people vote if the are kept in the dark not so much about what a government does (because some things need to be kept secret), but about the very reasons for the secrecy. Another important issue is that justice must be meted out in public so that it can be seen to be done, and scrutinized. Secret courts are anathema to democracy.
@Michael
The unfortunate reality is that some things really do need to be kept secret and, in a country of several hundred million, with a free (yes, yes) press, telling the 'people' means telling everyone. Everywhere.
This is the paradox which shields such actions - secrecy is important in an age of free press and world-wide information transfer but transparency is essential to real democracy.
Personally, I think we have more to gain from transparency that we have to lose but while we are restricted for accessing any relevant information, we can't say for sure. Worse, we can't even decide if keeping this information from us is actually in our best interest or not.
You, me, and indeed everyone reading this might want nothing but the best for their country and humanity as a whole but it is impossible to restrict public disclose to only those people.
Again, I think we. as societies, have more to gain from a policy of transparency than one of lies but it's not the simplest question, especially when you don't have the necessary information to make the decision yourself.
"The unfortunate reality is that some things really do need to be kept secret"
I'm no expert on information security, but one of the things I DO know is that security through obscurity is bad practice. Of course the actual keys are kept private but the infrastructure is publically known.
Now apply the same principle to the state... they should be able to keep the HOW of technical details of what they do, but the WHAT is collected and what is done with it should be publics, auditable and accountable. Current US reality is that for example CIA have tortured and killed people, are known to have done it, are known to have destroyed the evidence, are known to have hacked the senate investigative commitee investigating them... and yet in the end all there is to show is a heavily redacted report.No convictions, no arrests, no firings, nada. The CIA (and NSA etc etc) are completely unaccountable,not just to the people but even to the president (executive), congress (legislative) and courts (judiciary) branches of state. And each of the 3 branches seem to be unwilling or unable to bring their watchdogs to heel.
... this judge would deserve to win it several years in a row.
' ...the government's arguments in favor of the legality of the program were "persuasive, and must remain classified." '
The 'government's arguments' in this case are probably a brown envelope containing a thumbdrive with pictures, videos and sound recordings of what Judge Jeffrey White did in his last visit to Las Vegas, sprinkled also with his preferences in Internet porn. Persuasive arguments indeed.
From my point of view, nowadays the USA is about as democratic as Venezuela or Iran, i.e. only in a very superficial way.
In fairness to the judge, they're job isn't to do what they perceive to be right but rather to stick to the letter of the law as best as possible (with sentencing being the only real thing they can influence). Despite talk about "activist" judges, making or changing the law is something entirely outside the domain of the Justice Department, it's Congress that deals with that. He may well disagree entirely that it's right or just but feels that the law as it is prevents any other rulings. Keeping the judge's reasoning sealed is, again, something outside of his control if the government has appealed to laws about keeping documents secret
I believe that a local judge has to stick to federal law. If plaintiffs believe a law is unconstitutional, plaintiff has to take the case to the supreme court who might or might not accept the case.
I'm not sure local judges have the authority to judge on the constitutionality or otherwise of a law
Ought to, yes. Does is a whole other issue. Even when they do, there's a lot of leeway in the system. That's one of the ways you get rulings from different judges that conflict so that an appellate court has to decide which of the conflicting decisions is correct. The other way of course is the judge ignores his responsibility and rules as he pleases. You see a lot of that in Cali and Mass.
Regardless of what the judge does, plaintiff has to start at the lowest level and work his way up the system.
Speaking of secrets ...
The 2016 Presidential election promises to be 'Murka's first Billion-dollar race. Odds are that our ruling elite will soon realize that this is an unsustainable escalation. Negotiations will commence in 2018 behind closed doors, accords and agreements will be reached, and a "favored candidate" will emerge as a clear and obvious choice for a dazzled electorate in 2020. The 'losing side' will quietly carve up the spoils behind the scenes in equitable consort with the 'winning side.'
The Constitution? It's best safely ignored. That's no secret. Only hopeless idealists and radical malcontents cling to its pitifully outdated guidance.
It's nice that you feel that way, but let's take a look what it actually says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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 key phrase in here is "...no Warrants shall issue, but upon probable cause, supported by Oath or affirmation..." Now we've grown accustomed to a certain process in common law where we get to see the warrants and the claims made in the warrant. But that doesn't actually prevent Congress from making explicit laws regarding how some warrants are issued for a particular set of codified offenses. Which is what Congress did with the various laws usually lumped under Patriot Act. They've specified what constitutes probable cause, someone is affirming the accusation, and a court consisting of Presidential appointees who are approved by Congress is overseeing it. The only difference between it and another court is that because it deals with national security, Congress has deemed it appropriate to keep the proceedings secret. From a purely legal standpoint where you can't assume guilt, it therefore conforms to the law. From a practical standpoint it can be corrupt as all hell. That doesn't change the legality of it.
I wish I could downvote you more than once. By not too much extrapolation, the next thing we'll hear from you with that argument is that all conversation with family, friends, acquaintances must be recorded and turned over to the appropriate office in the name of security, etc.
For that matter, posting as A/C should not be allowed either. Bad troll... go to your room.
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