{"id":1793,"date":"2013-12-18T06:37:55","date_gmt":"2013-12-18T11:37:55","guid":{"rendered":"http:\/\/www.dougsbriefcase.com\/blog\/?p=1793"},"modified":"2013-12-18T08:42:49","modified_gmt":"2013-12-18T13:42:49","slug":"nsa-governments-gradual-silent-encroachments","status":"publish","type":"post","link":"https:\/\/www.dougsbriefcase.com\/blog\/nsa-governments-gradual-silent-encroachments\/","title":{"rendered":"The NSA<\/span> And Government\u2019s Gradual And Silent Encroachments"},"content":{"rendered":"

<\/p>

\"Federal<\/a>

Fed\u00ader\u00adal Dis\u00adtrict Court Judge Richard J. Leon on Mon\u00adday ruled that NSA<\/span> mon\u00adi\u00adtor\u00ading of cell\u00adphone traf\u00adfic is uncon\u00adsti\u00adtu\u00adtion\u00adal. [Cred\u00adit: Minor\u00adi\u00adty Report Blog]<\/p><\/div>On March 5, 1976, Patri\u00adcia McDo\u00adnough was robbed<\/a>.  She report\u00aded the crime to the Bal\u00adti\u00admore police. Soon after, McDo\u00adnough began receiv\u00ading threat\u00aden\u00ading and obscene phone calls from a man pur\u00adport\u00ading to be the rob\u00adber.  At one point, the caller asked her to step onto her porch.  Short\u00adly after she did, she saw a 1975 Monte Car\u00adlo dri\u00adving slow\u00adly past her home.  She recalled see\u00ading that same car near the crime scene. She report\u00aded the tag num\u00adber to the police, enabling them to iden\u00adti\u00adfy the own\u00ader as Michael Lee Smith.\n

The police asked the tele\u00adphone com\u00adpa\u00adny to install a pen reg\u00adis\u00adter \u2014 an elec\u00adtron\u00adic device that records all num\u00adbers called from a par\u00adtic\u00adu\u00adlar tele\u00adphone line \u2013 to mon\u00adi\u00adtor Smith\u2019s home phone.  The device helped police deter\u00admine that Smith had placed the offen\u00adsive calls to McDo\u00adnough, lead\u00ading to his arrest and conviction.<\/p>\n

Smith appealed, argu\u00ading that the pen reg\u00adis\u00adter had vio\u00adlat\u00aded his Fourth Amend\u00adment pro\u00adtec\u00adtion against unrea\u00adson\u00adable search\u00ades and seizures.  The case reached the Supreme Court, which val\u00adi\u00addat\u00aded the government\u2019s use of the pen register.<\/p>\n

The 1979 rul\u00ading in Smith v. Mary\u00adland<\/em><\/a>  forms the basis for the government\u2019s claim that its pro\u00adgram to mon\u00adi\u00adtor every American\u2019s cell\u00adphone activ\u00adi\u00adty is con\u00adsti\u00adtu\u00adtion\u00adal.  Accord\u00ading to the gov\u00adern\u00adment, the same pow\u00ader that Bal\u00adti\u00admore police used to col\u00adlect infor\u00adma\u00adtion from a par\u00adtic\u00adu\u00adlar tele\u00adphone that belonged to a par\u00adtic\u00adu\u00adlar indi\u00advid\u00adual sus\u00adpect\u00aded of hav\u00ading com\u00admit\u00adted a par\u00adtic\u00adu\u00adlar crime allows the gov\u00adern\u00adment to col\u00adlect all man\u00adner of infor\u00adma\u00adtion from every cell\u00adphone belong\u00ading to peo\u00adple sus\u00adpect\u00aded of no crime on the the\u00ado\u00adry that some\u00adone some\u00adwhere must be doing some\u00adthing wrong.<\/p>\n

That line of rea\u00adson\u00ading suf\u00adfered a set\u00adback on Mon\u00adday when Fed\u00ader\u00adal Dis\u00adtrict Court Judge Richard J. Leon<\/a> ruled that plain\u00adtiffs in the case known as Klay\u00adman v. Oba\u00adma<\/em><\/a> had raised a legit\u00adi\u00admate con\u00adsti\u00adtu\u00adtion\u00adal chal\u00adlenge to the NSA<\/span>\u2019s \u201cBulk Tele\u00adpho\u00adny Meta\u00adda\u00adta Pro\u00adgram.\u201d  Smith v. Mary\u00adland<\/em>,<\/span> Leon held, was no defense against legal challenge.<\/p>\n

When do present-day cir\u00adcum\u00adstances \u2013 the evo\u00adlu\u00adtions in the government\u2019s sur\u00adveil\u00adlance capa\u00adbil\u00adi\u00adties, cit\u00adi\u00adzens\u2019 phone habits and the rela\u00adtion\u00adship between the NSA<\/span> and tele\u00adcom com\u00adpa\u00adnies \u2013 become so thor\u00adough\u00adly unlike those con\u00adsid\u00adered by the Supreme Court thir\u00adty-four years ago that a prece\u00addent like Smith<\/em> sim\u00adply does not apply?  The answer, unfor\u00adtu\u00adnate\u00adly for the gov\u00adern\u00adment, is now [p. 45].<\/p><\/blockquote>\n

Leon is a bit of an icon\u00ado\u00adclast, who has issued high-pro\u00adfile rul\u00adings<\/a> in the past.  Ear\u00adli\u00ader this year, he struck down a rule on deb\u00adit card swipe fees <\/a>pro\u00admul\u00adgat\u00aded by the all-pow\u00ader\u00adful Fed\u00ader\u00adal Reserve.  His is not the last word on that case or on this one.  He essen\u00adtial\u00adly acknowl\u00adedged that, issu\u00ading an order that the NSA<\/span> shut the pro\u00adgram down and destroy its exist\u00ading files, but also pre\u00advent\u00ading enforce\u00adment of his order until an appeals court reviews it [p. 67].<\/p>\n

The case was among those brought as the result of doc\u00adu\u00adments leaked by for\u00admer gov\u00adern\u00adment con\u00adtrac\u00adtor Edward Snow\u00adden, which made the secret NSA<\/span> pro\u00adgram pub\u00adlic. Plain\u00adtiffs Lar\u00adry Klay\u00adman, founder of a con\u00adser\u00adv\u00ada\u00adtive group called Judi\u00adcial Watch, and Charles Strange, the father of an Amer\u00adi\u00adcan killed in Afghanistan, filed their law\u00adsuit last June, alleg\u00ading that the gov\u00adern\u00adment was con\u00adduct\u00ading \u201ca secret and ille\u00adgal scheme to inter\u00adcept and ana\u00adlyze vast quan\u00adti\u00adties of domes\u00adtic tele\u00adphon\u00adic com\u00admu\u00adni\u00adca\u00adtions\u201d (p. 8) that uncon\u00adsti\u00adtu\u00adtion\u00adal\u00adly cap\u00adtured their phone records.<\/p>\n

The gov\u00adern\u00adment coun\u00adtered that the pro\u00adgram was legit\u00adi\u00admate, autho\u00adrized by statute and con\u00adduct\u00aded con\u00adsis\u00adtent with war\u00adrants issued by the secret For\u00adeign Intel\u00adli\u00adgence Sur\u00adveil\u00adlance Court (FISC<\/span>).  Judge Leon held that the pro\u00adgram could nev\u00ader\u00adthe\u00adless be chal\u00adlenged on Fourth Amend\u00adment<\/a> grounds.  That amend\u00adment, which asserts \u201cright of the peo\u00adple to be secure in their per\u00adsons, hous\u00ades, papers, and effects, against unrea\u00adson\u00adable search\u00ades and seizures,\u201d cre\u00adates a \u201crea\u00adson\u00adable expec\u00adta\u00adtion of pri\u00adva\u00adcy\u201d [p. 44] for Klay\u00adman and Strange, Leon wrote.<\/p>\n

The gov\u00adern\u00adment argued that the NSA<\/span> pro\u00adgram did not vio\u00adlate this expec\u00adta\u00adtion, any\u00admore than it had vio\u00adlat\u00aded Smith\u2019s pri\u00adva\u00adcy when it used a pen reg\u00adis\u00adter to deter\u00admine that he was harass\u00ading the woman he\u2019d robbed.  Judge Leon disagreed.<\/p>\n

The Court in Smith<\/em> was not con\u00adfront\u00aded with the NSA<\/span>\u2019s Bulk Tele\u00adpho\u00adny Meta\u00adda\u00adta pro\u00adgram.  Nor could the Court in 1979 have ever imag\u00adined how the cit\u00adi\u00adzens of 2013 would inter\u00adact with their phones \u2026 I am con\u00advinced that the sur\u00adveil\u00adlance pro\u00adgram now before me is so dif\u00adfer\u00adent from a sim\u00adple pen reg\u00adis\u00adter that Smith<\/em> is of lit\u00adtle val\u00adue in assess\u00ading whether the  [the pro\u00adgram] con\u00adsti\u00adtutes a Fourth amend\u00adment search [pp. 46\u201347].<\/p><\/blockquote>\n

He cit\u00aded numer\u00adous dif\u00adfer\u00adences, includ\u00ading the fact that the pen reg\u00adis\u00adter was used on Smith\u2019s phone for only a few days, while the NSA<\/span>\u2019s pro\u00adgram \u201cwill go on for as long as Amer\u00adi\u00adca is com\u00adbat\u00ading ter\u00adror\u00adism, which real\u00adis\u00adti\u00adcal\u00adly could be for\u00adev\u00ader!\u201d [p. 46]  He also not\u00aded the vast\u00adly dif\u00adfer\u00adent rela\u00adtion\u00adships that the Bal\u00adti\u00admore police and the NSA<\/span> have with phone companies.<\/p>\n

The rela\u00adtion\u00adship between the police and the phone com\u00adpa\u00adny in Smith<\/em> is noth\u00ading<\/strong> com\u00adpared to the rela\u00adtion\u00adship that has appar\u00adent\u00adly evolved over the last sev\u00aden years between the gov\u00adern\u00adment and tele\u00adcom com\u00adpa\u00adnies \u2026  In Smith<\/em>,<\/span> the Court con\u00adsid\u00adered a one-time, tar\u00adget\u00aded request for data regard\u00ading an indi\u00advid\u00adual sus\u00adpect in a crim\u00adi\u00adnal inves\u00adti\u00adga\u00adtion, which in no way resem\u00adbles the dai\u00adly, all-encom\u00adpass\u00ading, indis\u00adcrim\u00adi\u00adnate dump of phone meta\u00adda\u00adta that the NSA<\/span> now receives \u2026 It\u2019s one thing to say that peo\u00adple expect phone com\u00adpa\u00adnies to occa\u00adsion\u00adal\u00adly pro\u00advide infor\u00adma\u00adtion to law enforce\u00adment; it is quite anoth\u00ader to sug\u00adgest that our cit\u00adi\u00adzens expect all phone com\u00adpa\u00adnies to oper\u00adate what is effec\u00adtive\u00adly a joint intel\u00adli\u00adgence-gath\u00ader\u00ading oper\u00ada\u00adtion with the gov\u00adern\u00adment [p. 48, empha\u00adsis<\/strong> in original].<\/p><\/blockquote>\n

These records not only are more volu\u00admi\u00adnous and last\u00ading than those reviewed in Smith<\/em>,<\/span> they also dis\u00adclose a good deal more per\u00adson\u00adal information.<\/p>\n

Records that once would have revealed a few scat\u00adtered tiles of infor\u00adma\u00adtion about a per\u00adson now reveal an entire mosa\u00adic \u2013 a vibrant and con\u00adstant\u00adly updat\u00ading pic\u00adture of the person\u2019s life [p. 54].<\/p><\/blockquote>\n

And they are unprece\u00addent\u00aded in scope.<\/p>\n

No court has ever rec\u00adog\u00adnized a spe\u00adcial need suf\u00adfi\u00adcient to jus\u00adti\u00adfy con\u00adtin\u00adu\u00adous, dai\u00adly search\u00ades of vir\u00adtu\u00adal\u00adly every Amer\u00adi\u00adcan cit\u00adi\u00adzen with\u00adout any par\u00adtic\u00adu\u00adlar\u00adized sus\u00adpi\u00adcion [p. 58].<\/p><\/blockquote>\n

The pre\u00adsumed \u201cspe\u00adcial need\u201d assert\u00aded by the gov\u00adern\u00adment is to quick\u00adly acquire infor\u00adma\u00adtion so as to fore\u00adstall a poten\u00adtial attack.  The gov\u00adern\u00adment, Judge Leon said, had not sub\u00adstan\u00adti\u00adat\u00aded that need.<\/p>\n

The gov\u00adern\u00adment does not cite a sin\u00adgle instance in which analy\u00adsis of the NSA<\/span>\u2019s bulk meta\u00adda\u00adta col\u00adlec\u00adtion actu\u00adal\u00adly stopped an immi\u00adnent attack, or oth\u00ader\u00adwise aid\u00aded the gov\u00adern\u00adment in achiev\u00ading any objec\u00adtive that was time-sen\u00adsi\u00adtive in nature [p. 61].<\/p><\/blockquote>\n

All of this led Judge Leon to con\u00adclude that the pro\u00adgram vio\u00adlates the Constitution\u2019s Fourth Amend\u00adment protections.<\/p>\n

The pro\u00adgram infringes on \u201cthat degree of pri\u00adva\u00adcy\u201d that the Founders enshrined in the Fourth Amend\u00adment.  Indeed, I have lit\u00adtle doubt that the author of our Con\u00adsti\u00adtu\u00adtion, James Madi\u00adson, who cau\u00adtioned us to beware \u201cthe abridge\u00adment of free\u00addom of the peo\u00adple by grad\u00adual and silent encroach\u00adments by those in pow\u00ader,\u201d would be aghast  [p. 64].<\/p><\/blockquote>\n

All of this, of course, is the opin\u00adion of a sin\u00adgle judge.  His rul\u00ading is sub\u00adject to appeal.  Not all judges share his unstat\u00aded assump\u00adtion that the words of the Con\u00adsti\u00adtu\u00adtion are to be tak\u00aden seri\u00adous\u00adly and not con\u00adtort\u00aded to suit society\u2019s shift\u00ading tastes.  Oth\u00ader jurists may be less skep\u00adti\u00adcal of the government\u2019s claims that they need our phone records to keep us safe.  Nor will they nec\u00ades\u00adsar\u00adi\u00adly share Leon\u2019s Madis\u00adon\u00adian sen\u00adsi\u00adbil\u00adi\u00adties or his alarm at gov\u00adern\u00admen\u00adt\u2019s \u201cgrad\u00adual and silent encroachments.\u201d<\/p>\n

The relent\u00adless growth of gov\u00adern\u00adment pow\u00ader rests on the assump\u00adtion that it is a benef\u00adi\u00adcent force.  Gov\u00adern\u00adment argues that we prof\u00adit when it slips its con\u00adsti\u00adtu\u00adtion\u00adal leash.  It can be trust\u00aded with pow\u00ader because it wields it to cre\u00adate a bet\u00adter soci\u00adety.  It can be trust\u00aded with our mon\u00adey because it can do nobler things with it than we would.  It can be trust\u00aded to micro\u00adman\u00adage mar\u00adkets because it allo\u00adcates goods and ser\u00advices more fair\u00adly and effi\u00adcient\u00adly than mar\u00adkets do. It can be trust\u00aded when it cur\u00adtails our lib\u00ader\u00adties because it makes us safer and more secure.<\/p>\n

The Con\u00adsti\u00adtu\u00adtion does not embody this wist\u00adful view of gov\u00adern\u00adment.  The Framers set out to curb its ambi\u00adtions and scope, to restrain its impuls\u00ades \u2014 both malev\u00ado\u00adlent and benign \u2014 and to pre\u00adserve lib\u00ader\u00adty by erect\u00ading a wall to lim\u00adit and con\u00adtain its power.<\/p>\n

The con\u00adtem\u00adpo\u00adrary vision of an activist gov\u00adern\u00adment that is free to pur\u00adsue its every good inten\u00adtion ran into the wall of the Con\u00adsti\u00adtu\u00adtion this week.  Let\u2019s hope this isn\u2019t just a momen\u00adtary setback.<\/p>\n","protected":false},"excerpt":{"rendered":"

On March 5, 1976, Patri\u00adcia McDo\u00adnough was robbed.  She report\u00aded the crime to the Bal\u00adti\u00admore police. Soon after, McDo\u00adnough began receiv\u00ading threat\u00aden\u00ading and obscene phone calls from a man pur\u00adport\u00ading to be the rob\u00adber.  At one point, the caller asked \u2026 Con\u00adtin\u00adue read\u00ading \u2192<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":1797,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","wp_typography_post_enhancements_disabled":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"nfd_image_url":"","nfd_onboarding_generated":"","footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[343,158,268,344,157],"tags":[760,758,84,325,275,269,761,753,755,757,1191,759,756,754,442],"class_list":["post-1793","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-government-power","category-national-security","category-nsa","category-supreme-court","category-terrorism","tag-bulk-telephony-metadata","tag-charles-strange","tag-federal-reserve","tag-fisa","tag-fisc","tag-fourth-amendment","tag-james-madison","tag-judge-richard-j-leon","tag-klayman-v-obama","tag-larry-klayman","tag-nsa","tag-patriot-act","tag-pen-register","tag-smith-v-maryland","tag-swipe-fees"],"aioseo_notices":[],"aioseo_head":"\n\t\t\n\t\n\t\n\t\n\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t\n\t\t