2nd Circuit Court of Appeals Rules that NSA Telephone Data Collection Illegal

This blog has repeatedly maintained that the bulk collection of telephone metadata by the National Security Agency is illegal.  Today, the United States Court of Appeals for the Second Circuit confirmed this view by finding that the telephone medadata collection was illegal.  The scope of the now confirmed illegal domestic surveillance of Americans was first revealed by Edward Snowden who is now facing federal charges for in effect alerting the public to the fact that the NSA was breaking the law.  With the new court ruling, Congress will be forced to address the lawlessness of our national security agencies.  The infighting and partisanship should make for great spectator sport.  Here are highlights from Politico:

A court ruling Thursday against the National Security Agency’s phone data collection sparked a war of words between the Senate’s leaders over the future of the program — with little hope of a quick breakthrough.

With lawmakers facing a May 31 deadline to extend or reform parts of the PATRIOT Act, Senate Majority Leader Mitch McConnell and Minority Leader Harry Reid both refused to cede ground.

“According to the CIA, had these authorities been in place more than a decade ago, they would have likely prevented 9/11,” McConnell said on the floor of the chamber. He called soon-to-expire provisions of the PATRIOT Act “ideally suited for the terrorist threat we face in 2015.”

Reid, meantime, called for an immediate vote on the USA Freedom Act, a surveillance reform bill advancing in the House that would end the telephone metadata program.

“Instead of bringing the bipartisan NSA reform bill up for a vote, Sen. McConnell is trying to force the Senate to extend the bulk data collection practices that were ruled illegal today,” he said. “It would be the height of irresponsibility to extend these illegal spying powers when we could pass bipartisan reform into law instead.”

The court decision injected a new element of uncertainty into the already rancorous debate in Congress over whether to extend the PATRIOT Act provisions, including Section 215, used to justify the NSA’s bulk data collection, first revealed by Edward Snowden’s leaks. If Congress doesn’t act by May 31, the provisions will expire.

Reid’s office threw cold water on the idea of a short-term solution, saying he “will use the tools at my disposal to stop any attempt to extend these powers for any length of time without reforming them.”

Privacy zealots from both parties on Thursday applauded the court decision, saying it should grease the skids for lawmakers to approve the USA Freedom Act.

“Today’s federal appeals court ruling confirms what we’ve been saying all along: Bulk collection of data is not authorized under the law and is not accepted by the American people,” said Reps. Bob Goodlatte (R-Va.), John Conyers (D-Mich.), Jim Sensenbrenner (R-Wis.) and Jerry Nadler (D-N.Y.), who are all sponsors of the USA Freedom Act in the House.

National security hawks were quick to question the ruling’s durability, citing the potential for other courts to weigh in and the possibility of an appeal to the Supreme Court.

What the NSA has been doing would have been a dream come true for Adolph Hitler, Josef Stalin and other ruthless dictators.   It speaks volumes as to how much freedom of privacy American citizens have lost.  Currently, America ranks among the worse nations in the world when it comes to domestic surveillance and lack of personal privacy. 

National Security Agency Violated Court-Approved Privacy Rules

As more and more information comes out about the National Security Agency's ("NSA") domestic spying operations, one picture is increasingly clear: NSA is a rogue agency that feels free to violate court orders and existing laws with no one seemingly in over all charge or control.  Abuses and lies about the abuses and violation of legal parameters seem to be the norm.  An article in the Washington Post looks at new evidence that the NSA and it's trampling on Americans' privacy and disregard for the law.  Here are highlights:

The National Security Agency for almost three years searched a massive database of Americans’ phone call records attempting to identify potential terrorists in violation of court-approved privacy rules, and the problem went unfixed because no one at the agency had a full technical understanding of how its system worked, according to new documents and senior government officials.

Moreover, it was Justice Department officials who discovered the problem and reported it to the court that oversees surveillance programs, the documents show, undermining assertions by the NSA that self-reporting is part of its culture.

A strong rebuke of the NSA by the court comes less than a month after the Office of the Director of National Intelligence released a highly critical FISA court opinion that took the agency to task for its operation of a separate surveillance program. Taken together, the documents released by the office over the past month paint a troubling picture of an agency that has sought and won far-reaching surveillance powers to run complex domestic data collection without anyone having full technical understanding of the efforts, and that has repeatedly misrepresented the programs’ scope to its court overseer.

“It has finally come to light that the FISC’s authorizations of this vast collection program have been premised on a flawed depiction of how the NSA uses” the phone data, Walton wrote.

“This misperception by the FISC existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions,” he continued.

Privacy procedures “have been so frequently and systemically violated that it can fairly be said that this critical element of the overall [phone records] regime has never fully functioned effectively,” he said.

Beginning in late January 2009, Justice Department officials began notifying the court of problems, in particular that the NSA had been running an automated “alert list” on selected phone numbers without meeting the court-required standard of “reasonable and articulable suspicion” that those numbers were tied to terrorists.

Justice Department officials notified the court that the NSA had been searching the business records “in a manner directly contrary” to the court’s orders “and directly contrary to the sworn attestations of several Executive Branch officials,” Walton wrote in a Jan. 29, 2009, order.

In November 2009, Walton also expressed concern that the NSA had searched phone numbers long after the numbers had been found to be irrelevant and said he “remained concerned” that the NSA did not meet the required standard for using the numbers, exposing information about Americans who were not the subject of FBI investigations. 

“Now that the agency has been forced to release them, we can see that the real reason for secrecy was to conceal the fact that surveillance under the Patriot Act was far broader, and less focused, than the public and Congress had been led to believe.”

Obama’s Empty NSA Reforms

Americans continue to live in a nation where domestic spying on civilians and breaches of privacy rival those of communist China and Putin's Russia and despite Barack Obama's talk of reform, things on this front are not about to be reigned in.  It is disturbing that the only safe approach in America is to assume that everything one does on the Internet or via electronic communications is being intercepted and read by government agents.  We have no true privacy.  The Nazi regime would be envious of the level of surveillance that watches Americans' every move.  A piece in the Washington Post looks at Obama's meaningless promises of reform. Here are excerpts:

President Obama’s message about the government’s massive electronic surveillance programs came through loud and clear: Get over it.

The president used more soothing words in his pre-vacation news conference Friday, but that was the gist. With perhaps the application of a fig leaf here and a sheen of legalistic mumbo jumbo there, the snooping will continue.  Unless, of course, we demand that it end.

The modest reforms Obama proposed do not begin to address the fundamental question of whether we want the National Security Agency to log all of our phone calls and read at least some of our e-mails, relying on secret judicial orders from a secret court for permission. The president indicated he is willing to discuss how all this is done — but not whether.

Snowden’s disclosures do look increasingly like whistle-blowing, by the way, rather than espionage or treason. If administration officials really welcome the discussion we are now having, shouldn’t they thank Snowden rather than label him an enemy of the state? 

As part of its public relations campaign, the administration released a 22-page white paper outlining its legal rationale for collecting and keeping a detailed log of all our domestic phone calls. The document depends on novel definitions of words whose meaning, I always thought, was fairly clear.

Only an infinitesimal fraction of the billions of phone call records being stored in the NSA’s computers will actually have anything to do with terrorism or espionage. The government argues that it must have the entire haystack to find these few needles. Therefore, every piece of hay — your lunchtime call to your spouse, say, or your evening chat with an old friend — is relevant to an investigation.

Which investigation might that be? On this question, the administration argues there is no need to be specific. “An investigation” is taken to mean, roughly, any investigation designed to prevent terrorist attacks.

[T]he Fourth Amendment, which prohibits searches without suspicion. Without informing us, the judges of the secret intelligence court have construed the amendment to permit the collection of vast, unprecedented amounts of private information about individuals who are not, the government admits, under any suspicion.

Proceedings before the court are not adversarial; only the government side is presented. Obama acknowledged that this “may tilt it too far in favor of security, may not pay enough attention to liberty.”

I’ll believe Congress is serious when it clarifies the Patriot Act and other laws to spell out that the Constitution still applies. The NSA’s capability to obliterate privacy is rampaging ahead. The law desperately needs to catch up.

I continue to find this all pervasive spying on citizens frightening.  It has all the earmarks of Nazi Germany and other totalitarian regimes.  There is currently no one who reins in out of control spying. And there are no limits on the government's ability to label one a suspect or subversive.

Spying on Americans: NSA Asked Verizon for All Call Data

Click image to enlarge

Some have scoffed at the reality that in the United States personal privacy is a thing of the past.  While we face ridiculous lengths to access financial and healthcare records, the government is spying on our every move.  The map above is from a January, 2008 post shows that spying on citizens in America ranks up there with levels in China and Russia - that's right, this is from BEFORE Barack Obama was elected for those in the GOP base - and things have not improved over the intervening years as evidenced by a new story in the Washington Post about the NSA - National Security Administration - accessing all of Verizon's call records.  That's right, all of them, not just those of suspected would be terrorists.  Think you are having a private phone conversation?  Think again.   Here are highlights from the Post story (NOTE: it was a British paper that first broke the story):

The National Security Agency appears to be collecting the telephone records of tens of millions of American customers of Verizon, one of the nation’s largest phone companies, under a top-secret court order issued in April.

The order appears to require a Verizon subsidiary to provide the NSA with daily information on all telephone calls by its customers within the United States and from foreign locations into the United States.

The order, which was signed by a judge from the secret court that oversees domestic surveillance, was first reported on the Web site of the Guardian newspaper. The Web site reproduced a copy of the order, which two former U.S. officials told The Washington Post appears to be authentic.

If the document is genuine, it could represent the broadest surveillance order known to have been issued. It also would confirm long-standing suspicions of civil liberties advocates about the sweeping nature of U.S. surveillance through commercial carriers under laws passed after the Sept. 11, 2001, terrorist attacks.

An expert in this aspect of the law said Wednesday night that the order appears to be a routine renewal of a similar order first issued by the same court in 2006. The expert, who spoke on the condition of anonymity to discuss sensitive issues, said that the order is reissued routinely every 90 days and that it is not related to any particular investigation by the FBI or any other agency.

The order falls under Section 215 of the Patriot Act, which authorizes the government to make broad demands on telephone carriers for information about calls. In this case, the order requires Verizon to provide “ongoing, daily” information about “all call detail records . . . created by Verizon for communications between the United States and abroad; or wholly within the United States, including local telephone calls.”

The White House, the Justice Department and the FBI, which apparently sought the order, declined to comment. Spokesmen for Verizon and the court also declined to comment.

But civil liberties groups were quick to criticize the sweeping nature of the order.  “This is a truly stunning revelation,” said Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice. “This suggests that the government has been compiling a comprehensive record of Americans’ associations and possibly even their whereabouts.”

The Center for Constitutional Rights, which has sued the government over its surveillance prac­tices, said in a statement Wednesday night that the order “requires no level of suspicion and applies to all Verizon subscribers anywhere in the U.S. It also contains a gag order prohibiting Verizon from disclosing information about the order to anyone other than their counsel.”

The order also seems to confirm fears expressed by Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.). In a letter to Attorney General Eric H. Holder Jr. last year, they said, “We believe most Americans would be stunned to learn the details of . . . these secret court opinions. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows.”

Government officials have defended the broad surveillance powers, saying that the information has been vital in uncovering and disrupting terrorist plots. They also say that the surveillance has operated under the provisions of the Patriot Act and other laws.

There's more, but the bottom line is that America is increasingly a police state and the trend began under Bush/Cheney and the then GOP controlled Congress.  This may shock the conspiracy crowd in the GOP, but it was their guys who put this system into motion.  I find it frightening.