Tuesday, December 17, 2013


At first I was an Edward Snowden skeptic. But I learned to separate my feelings about Snowden and (especially) Glenn Greenwald from my feelings about what they've exposed -- NSA surveillance violates constitutional principles so blatantly that I've stopped caring about Snowden's motives or Greenwald's journalistic practices. There's too much here, as has been confirmed by journalists who've written about it and aren't named Greenwald. And I don't believe it's keeping us safe -- it just seems to be the creation of a massive power center, by an agency capitalizing on the establishment's sense that huge, grotesque, aggressive things have to be done in the name of protecting the nation, which must be the right things to do because they're huge, grotesque, and aggressive. In this way, NSA data collection is like war: the people in power pursue this course because the level of aggression and size of the effort are so massive and full of testosterone. In reality, I think the NSA is just creating the world's largest haystack, then claiming that's the best possible way to find needles -- which is crazy. But we love throwing money at war-fighting, so we do it.

Federal district judge Richard Leon has ruled that the program "almost certainly" violates the Fourth Amendment. I don't care if he's a Bush appointee; I don't care that the lawsuit was brought by the usually appalling Larry Klayman. Klayman is on the wrong side, as far as I'm concerned, 90% of the time, but our politics are full of people who are wrong 100% of the time. He's right on this, as he was right when he tried to unearth information about Dick Cheney's energy task force. I don't know when he'll be right again, but I'm glad he filed this suit.

Judge Leon's ruling is likely to be reviewed by the Supreme Court. This is not my area of expertise, but I'm expecting the ruling to be overturned, and I'm not expecting the program to be upheld by a strictly partisan majority -- I see that Marcy Wheeler thinks Stephen Breyer is inclined to go "law and order" in cases like this. I think most if not all of the GOP justices would also vote for the preferences of the establishment -- that's how they'll see it, because the establihment is what they're creatures of.

The key issue here seems to be Judge Leon's determination that a 1979 ruling doesn't apply in this case, because the nature of phones has changed so much since then:
... there is a practical sense, often lacking, of what it means to have someone's phone records in this day and age. That leads Leon to confront, in the opinion's most sweeping section, Smith v. Maryland, the 1979 Supreme Court decision that the N.S.A. has leaned on extraordinarily heavily in justifying its collection of telephone (and other) records.... Smith v. Maryland involved ... telephones that are hardly recognizable as the same things we carry around in our pockets. As Judge Leon writes, "Some undoubtedly will be reading this opinion on their cell phones." Not only is the government able to collect more phone data, more easily, and sort it in new ways, "the nature and quantity of the information contained in people's telephony metadata is much greater, as well."
If higher courts want to overturn this ruling, it would seem ridiculously easy just to reject this reading of the earlier case's relevance: Of course the Smith ruling still applies. Phones are phones. And that will be that.

I hope I'm wrong, but I just don't think there are more than a handful of people with power -- a small number of liberals and libertarians in Congress, a few judges like Leon -- who have any inclination to curtail power this way. So I don't expect this ruling to stand.


Victor said...

It won't stand up in the SCOTUS.

Robert's, and the other "(Not-at-all) Fab Fascist Five" are not likely to rule against government snooping.

There are many things they don't think that government should be involved with - but snoopin', ain't one of 'em!

Philo Vaihinger said...

The Amendment forbids unreasonable searches and seizures, and places conditions on issuance of warrants.

It does not say warrants are required for all searches (as indeed they are not), nor does it expound on the meaning of "unreasonable."

Given that it's only meta-data about what number is calling what number that's at issue and NOT actual calls, and given the dangers to be averted, I'm not sure it's so clearly unreasonable as to be unconstitutional.

Which is not to say I'm fine with hit.

There are lots of things I'm not fine with that are constitutional, all the same.

Kathy said...

Philo, unfortunately the "War on Terra" has had many "unintended" consequences. Hoover, a relatively affluent suburb of Birmingham (yes, that's suburb), got its own Homeland Security Department some years ago, paid for with federal funds. The police department of my own suburb of Vestavia Hills has become more and more militarized, with the black SUVs and AR-15s.

Now just to be clear, Vestavia Hills is an affluent, low-crime area, and it doesn't need this kind of law enforcement. But the money was there, so why not use it? And now that the equipment and personnel are here, why not use them too?

I hope the SC upholds Leon's ruling so at the least a 2013 Congress with 2013 experts on telecommunications can revisit the law. Not that I have a lot of trust in Congress, mind you, but perhaps a galvanized public (or some percentage of it) will help them figure out and do the right thing.

Lex Alexander said...

Hope you're wrong. Fear otherwise.