back to article Snowden was right: US court deems NSA bulk phone-call snooping illegal, possibly unconstitutional, and probably pointless anyway

The United States Court of Appeals for the Ninth Circuit has ruled [PDF] that the National Security Agency's phone-call slurping was indeed naughty, seven years after former contractor Edward Snowden blew the whistle on the tawdry affair. The ruling had nothing to do with Snowden himself. Instead it concerned four Somali …

  1. alain williams Silver badge

    What is the point of the court ruling ?

    The NSA will just continue to do it - just be a bit more careful about being caught.

    1. Smooth Newt Silver badge
      Happy

      Re: What is the point of the court ruling ?

      The NSA will just continue to do it - just be a bit more careful about being caught.

      It really boils down to public perception - if the public feel that the NSA needs reining in then that will happen because politicians need votes. If they don't, or more likely, the NSA and its backers manages to change the subject of the conversation,* then nothing will happen.

      *We've no interest in law-abiding citizens like you, it's all about protecting y'all from the communist Muslim extremist Antifa extinction rebellion paedoterrorists who want to take your assault rifles away and give you free healthcare.

      1. Duncan Macdonald Silver badge
        Black Helicopters

        Re: What is the point of the court ruling ?

        The NSA has probably got enough blackmail evidence to ensure that it continues unfettered by law or decency.

        "Hey Senator XYZ are you going to do as the NSA wants or are we going to release the evidence of you having underage sex ? "

        1. jmch Silver badge

          Re: What is the point of the court ruling ?

          "The NSA has probably got enough blackmail evidence"

          Interesting to note that it's become taken for granted that any politician in a high enough position has something they can be blackmailed about

          1. A.P. Veening Silver badge

            Re: What is the point of the court ruling ?

            Interesting to note that it's become taken for granted that any politician in a high enough position has something they can be blackmailed about

            In America it is a scandal if a politician breaks his marital vows, in France everybody is surprised if a politician doesn't have something on the side. No French politician can be blackmailed with something like that.

          2. Anonymous Coward
            Anonymous Coward

            Re: What is the point of the court ruling ?

            "It could probably be shown by facts and figures that there is no distinctively native American criminal class except Congress".

            - Mark Twain (1897)

      2. osakajin Bronze badge

        Re: What is the point of the court ruling ?

        I'm sure you can squeeze Corona in there too

    2. DS999

      Re: What is the point of the court ruling ?

      The NSA won't do this particular thing under this particular interpretation of the law. They'll have a different thing they do under a different interpretation of the law, that they will stop doing once it comes to light.

      Too many politicians think that violating privacy is OK if it helps catch terrorists (or "violent protestors" or whoever the administration in power has a hard on for) for them to ever lift a finger to stop it. Other than a few privacy minded congressmen who really do want to stop it, the vast majority is unfortunately not going to lift a finger beyond giving them a slap on the wrist to make voters think they stopped them.

      1. Anonymous Coward
        Anonymous Coward

        Re: What is the point of the court ruling ?

        Reminds me of the conclusion of the Justice Department's criminal case against Microsoft for driving Netscape and other companies out of business by abusing its quasi-monopoly status.

        After the presidential election returned George W. Bush to the White House, the DoJ decided to give Microsoft (already convicted of criminal offences) a light slap on the wrist.

        Essentially, it had to promise never again to drive Netscape out of business.

    3. Anonymous Coward
      Anonymous Coward

      Re: What is the point of the court ruling ?

      The NSA is not "breaking the law" because it's not illegal for the NSA to monitor everything. There is a law permitting it but it's secret and it would be breaking the law to tell you anything about it.

      It has been well documented for years that the NSA can (and does) monitor all foreign communications, so it you talk to anyone outside the USA it's completely legal for the conversation to be monitored. But note that if you talk to anyone outside the USA then it's legal for the NSA to monitor anyone who talks to you.

      1. DS999

        Re: What is the point of the court ruling ?

        No there is not and never was a law permitting the NSA to do that. In fact there is and has since the 70s been a law making it illegal for them to intercept domestic communications.

        The reason they started doing it was that Bush's deputy AG made a "finding" that it was legal with a convoluted argument. The courts have said that interpretation of the law is incorrect, and the original law preventing it holds.

        That is, if there hasn't been another secret "finding" with a different convoluted argument. Or if the NSA isn't just plain breaking the law because they know the current administration won't do anything about it.

        1. DCFusor Silver badge

          Re: What is the point of the court ruling ?

          They've been at this quite awhile - it's not the current admin's fault at all, other than them letting it continue. They sure didn't start it.

        2. ThinkingMonkey

          Re: What is the point of the court ruling ?

          "they know the current administration won't do anything about it." Perhaps, but this article is about the NSA's shenanigans from 7 years ago, well before the current administration.

      2. Anonymous Coward
        Anonymous Coward

        Secret Law?

        Secret Courts, yes, but the concept a Secret Law sounds stupid.

        Otherwise you could be prosecuted for a crime that no one had any way of knowing existed.

        1. jonathan keith Silver badge

          Re: Secret Law?

          Welcome to Franz Kafka's future.

        2. Neil Barnes Silver badge
          Black Helicopters

          Re: Secret Law?

          But ignorance of the law is always stated to be no excuse... got you coming and going.

          1. Anonymous Coward
            Anonymous Coward

            Re: Secret Law?

            I hope you didn't think that law has anything to do with justice or fairness. Because it hasn't.

      3. Anonymous Coward
        Anonymous Coward

        Re: What is the point of the court ruling ?

        "There is a law permitting it but it's secret and it would be breaking the law to tell you anything about it".

        (1) How do you know that?

        (2) Aren't you a scofflaw?

    4. JCitizen Bronze badge
      FAIL

      Re: What is the point of the court ruling ?

      I've said it before, and will over and over again, that the law was stupid as well as unconstitutional; and was totally not needed in the first place.

      We had all the information needed to stop the 911 attacks, but we simply didn't share information between agencies, so investigators could put two and two, together. The only law needed was to relax (but not completely, as abuse in the 1970's proved), data sharing rules between investigatory agencies. That was ALL they needed, not this ridiculous tripe! More time has been wasted following this stupid tactic, that could have been better served through regular old fashion gum shoe work!!! [and possibly a whistle blower law to protect lower agents when reporting information that could prevent attacks] The latter which would have also prevented the 911 attacks.

  2. Pascal Monett Silver badge

    Great, so NSA slurping back in Snowden's day was illegal

    Wonderful to know, nice to see justice being done, etc.

    Now, what about the slurping the NSA is doing today ?

    Because you don't think this ruling is going to stop it, now do you ?

    1. Yet Another Anonymous coward Silver badge

      Re: Great, so NSA slurping back in Snowden's day was illegal

      Question is can you extradite and prosecute somebody for revealing an illegal operation, while not dealing with those doing the illegal stuff - and still be a legitimate government ?

      1. Qumefox

        Re: Great, so NSA slurping back in Snowden's day was illegal

        All governments have always been a "Do as I say, not as I do" arrangement. This will never change.

      2. Rattus
        Alert

        Re: Great, so NSA slurping back in Snowden's day was illegal

        yes, obviously

      3. Anonymous Coward
        Anonymous Coward

        Re: Great, so NSA slurping back in Snowden's day was illegal

        Obviously, since that is what has been happening for several years now in the case of Julian Assange.

        Never mind the Constitution and other pieces of paper. The actual rules are:

        1. We can do anything we like, to anyone, anywhere, any time.

        2. If you try to stop us, or reveal what we have done, you are a vicious criminal and will be severely punished.

        Clear?

  3. macjules Silver badge

    Come home Ed, all is forgiven.

    Can Ed Snowden come home now, on the basis that the disclosures he made are now valid whistleblowing? Or must he remain in Vlad's house for the foreseeable future?

    1. DoctorNine

      Re: Come home Ed, all is forgiven.

      Oh, you know the answer to that. He must remain steadfastly in the BAD column, regardless of constitutional law, the courts, human decency, and whatnot. It's a matter of them what wears the pants not liking that he exposed their tawdry state of affairs to the public in the first place. They may have been chastised, but that hasn't altered their capacity for vendetta, nor the hubris that they exhibit in persecuting folks who rightfully are concerned about it.

      No, I fear it is still not safe for poor Edward to return to his homeland.

    2. DS999

      Re: Come home Ed, all is forgiven.

      Actually not all the disclosures he made count as valid whistleblowing even if this court decision stands. He released plenty of information about overseas operations which everyone acknowledges were 100% legal under US law.

      Even if he came home he couldn't be sure that a future administration wouldn't try to prosecute him, so I'm not sure he'd be smart to return even if he's told "all is forgiven".

      1. Anonymous Coward
        Anonymous Coward

        Re: Come home Ed, all is forgiven.

        "The problem isn't that what they're doing is illegal, it's that it is legal," I heard Snowden say in a recent interview.

        In a sense, that's what was happening before, if the CIA or NSA found part of what they were doing might be illegal, they'll visit the president for a short chat, propose a bill to Congress, or argue in the closed & secret FISA court.

        Now, will this new ruling change anything? ...probably not.

      2. onemark03 Bronze badge

        Re: Come home Ed, all is forgiven.

        For Snowden to come back to the US now would be - literally - suicidal. Uncle Sam has a long memory and is particularly vindictive.

        Snowden will probably have to stay where is he is or move to another country. (Germany has offered him asylum.)

        1. onemark03 Bronze badge

          Come home Ed, all is forgiven.

          PS:

          Now that Biden has been elected, maybe he'll pardon Snowden or at the very least, not object if Germany now offers him asylum.

          But for Snowden to return to the US would still literally be suicide.

    3. Tom 38 Silver badge

      Re: Come home Ed, all is forgiven.

      Two wrongs don't make a right, but Trump might pardon Snowden to smear Biden - "look at all the illegal things Obama and Biden did". I think its unlikely though, I don't think Snowden is well loved by Trump's target demographic.

  4. A random security guy Bronze badge

    Offshoring bulk surveillance

    Nothing prevents the Brits and the US wiretapping the other's messages on their territory. With visitors looking at the screens.

    The weird thing is that they have had no success using wiretaps to thwart attacks. And bulk surveillance can't be used as evidence after the fact. It may be useful for creating profiles of suspected terrorists.

    For all of us who have been receiving scam calls in a foreign language, we are now all suspected of consorting with hackers from that country. /sarcasm.

    1. Anonymous Coward
      Anonymous Coward

      Re: Offshoring bulk surveillance

      It's actually a lot easier to outwit, cheat, lie to and spy on your own citizens than potential enemies (or even organised criminals).

    2. DevOpsTimothyC

      Re: Offshoring bulk surveillance

      Actually there are laws on both sides that essentially say "If it's illegal for you to do you're not allowed to ask anyone else to AND It's illegal accept their information if it would have been illegal for you to gather that information.

  5. HildyJ Silver badge
    Big Brother

    On the same day

    https://www.theregister.com/2020/09/03/multilateral_mutual_assistance_and_cooperation_framework_for_competition_authorities/

    The NSA and Five Eyes aren't about to give up their access to everything and the "Mutual Assistance and Cooperation" framework assures that they won't have to.

  6. theOtherJT

    So they'll be doing something about that in...

    ...in... in... nope. Nope. Not going to hold my breath.

  7. james7byrne

    Big Tech has this all covered - no need for the NSA

    The NSA just gets data from the the Big Tech giants. No need to slurp up data anymore. Google, Facebook, and Amazon already know everything about you and all the person you know. I find the amount of info Big Tech has to be just as scary as the NSA, yet we all just keep posting on Facebook.

    1. Version 1.0 Silver badge

      Re: Big Tech has this all covered - no need for the NSA

      Big Tech is just a little player in game, it's only concern is $$$$

    2. Anonymous Coward
      Anonymous Coward

      Don't use them

      Qwant.com as a search engine

      maps.Here.com for maps,

      Email? Proper email provider, never free webmail.

      For throwaway email addresses, Yandex.com use to be usable. But given Trump's 'special' relationship, you might want to find another throwaway provider.

      There's simply no reason to give them more data than you really have to. But their surveillance webs are largely unavoidable.

      1. sev.monster
        Boffin

        Re: Don't use them

        [Self-hosted and] public Searx instances.

        Downloaded, offline OSM maps.

        [Shared] self-hosted or trusted local/small company email.

        Don't give anyone data or make it so difficult to find as to be unusable (t. Searx searches not really being traceable by Big Tech).

        If you do self-host, make sure to throw in other people's data to scramble things up.

        Always use S/MIME where possible.

  8. Keven E
    Pint

    I'll remember this one...

    ... the next time I really want to call someone a liar, but feel *obliged to obfuscate.

    "...created a contrary impression, that impression is inconsistent with the contents..."

  9. Anonymous Coward
    Anonymous Coward

    There are other ways to deal with illegal intercepts......

    ......in the mean time, ordinary folk have taken Edward Snowden's message to heart, and have started using private ciphers to keep their LEGITIMATE communications completely private. So.....the Cisco backdoors just yield stuff like this for the average NSA/GCHQ snooper. Is it sinister? Is it a birthday greeting? Maybe it's just random base64. Who knows!!!

    *

    07yY1O=C0=n61Rhz1QR=1QOE0Fe805rt0JE60NVs

    1ABr1Asd0v$I1VkV0WuY0JpF0e9u1bJe0I961gcA

    0UcW0e2R097F0Atw1Qmr0EgR0yWw1SFE0pDy0aVp

    08F510$E1a8W04O60Lau17v=0TzE04VJ1VdK1e8A

    08L70KdQ09T40nml1Kvp0nVu1XAE08uf1g9R0rA7

    0lwl036O1jnS02=x0Adk14Bs0hLf0F170hDC1Gdp

    00yD1HYR0clw1XSD1Dnv162G060H0B4X1ThZ08qp

    04UP0F0F0PGU0qd00NaP0tOH0AfD1kp=1Wgr0fVJ

    0Ceu067B0dx01Zq51NQg14Fm1gRy1cuT15Fk0HVb

    04Sk1UHf1FRk1SuD1hT50hvQ1auX0bVp19yy0w52

    1Cba04Cs08lQ1UM10uCz0j1X0l2B1Crk1IAo0$b3

    016i0rnr1PQn1lvm

    *

    1. Smooth Newt Silver badge
      Joke

      Re: There are other ways to deal with illegal intercepts......

      Is it sinister? Is it a birthday greeting? Maybe it's just random base64. Who knows!!!

      That rather depends on what algorithm and key the NSA chooses to use.

      You can't hide your plot from us. We have determined that your "random" data is actually encoded using the XOR encryption algorithm and the (lengthy) key is [...]. Using this key we immediately see that your supposed "birthday greeting" is actually a plot to take over the world explained using a photo of some lego.

  10. Claverhouse Silver badge
    Holmes

    Doesn't Really Matter If The Data Is Useless

    Data-Gatherers Want All Data.

  11. JCitizen Bronze badge
    Megaphone

    Hopefully...

    I hope this gives Snowden a leg up during any trial he might undergo. I'm not really a fan, but I support his cause if not his personal intentions.

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