17 December 2013

Thank Edward Snowden for this Court Ruling

Yesterday, Federal Judge Richard Leon ruled that the NSA's bulk gathering of phone records was probably unconstitutional.

There are a fair number of points that were made.

The first was that the data release by Edward Snowden, and its publication by Glenn Greenwald made the fact that the NSA was collecting everyone's phone records a matter of public record, and hence that the litigants had standing because they knew that their data was being collected.

Basically, he is saying that the ruling in Clapper v. Amnesty international, that people could not challenge secret surveillance, because it was secret, so they had no standing.

As Charlie Pierce notes, this makes for a game changer:
Let us be clear. No matter what you think of Snowden, or Glenn Greenwald, and no matter what you think of what they did, this ruling does not happen if the NSA doesn't let a contractor walk out of the joint with the family jewels on a flash drive. This ruling does not happen if we do not know what we now know, and we don't know any of that unless Snowden gathers the data and leaks it to the Guardian.
His next point illustrates just how 6 degrees of separation works:
“Suppose, for instance, that there is a person living in New York City who has a phone number that meets the RAS standard and is approved as a ‘seed,’ ” Judge Richard Leon writes in a broad opinion finding that the National Security Agency’s “telephony metadata” program is likely unconstitutional. An R.A.S. is a “reasonable, articulable suspicion” that someone might have something to do with terrorism; a seed is a search term, perhaps a telephone number, that the N.S.A. plugs into a database of hundreds of millions of phone records it has collected indiscriminately. “And suppose this person, who may or may not actually be associated with any terrorist organization, calls or receives calls from 100 unique numbers, as in my example. But now suppose that one of the numbers he calls is his neighborhood Domino’s Pizza shop,” Judge Leon continues:
The Court won’t hazard a guess as to how many different phone numbers might dial a given Domino’s Pizza outlet in New York City in a five-year period, but to take a page from the Government’s book of understatement, it’s “substantially larger” than the 100 in the second hop of my example, and would therefore most likely result in exponential growth in the scope of the query and lead to millions of records being captured by the third hop.
It is also interesting to note that  Judge Leon specifically noted that the intelligence drift net did not get any meaningful results:
A warrantless, suspicionless search that abridges a legitimate expectation of privacy might be "reasonable" if it was justified by a compelling security interest that cannot be addressed any other way. In perhaps the strongest passages of Justice Leon's opinion, he persuasively argues that there is no such interest in this case. The government has simply not shown that these intrusive searches are justified as counterterrorism measures. While the government argues that these warrantless searches are necessary for reasons of efficiency, they simply haven't made the case:
...the Government does not cite a single instance in which analysis of the NSA's bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature. In fact, none of the three "recent episodes" cited by the Government that supposedly "illustrate the role that telephony metadata analysis can play in preventing and protecting against terrorist attack" involved any apparent urgency.
I hope that his ruling will stand, but I fear that it won't.


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