Schneier on Security
A blog covering security and security technology.
« Prosecuting Snowden |
| How the FISA Court Undermines Trust »
July 23, 2013
Marc Rotenberg on the NSA Supreme Court Suit
Marc Rotenberg of EPIC explains why he is suing the NSA in the Supreme Court.
And USA Today has a back and forth on the topic.
Posted on July 23, 2013 at 6:21 AM
• 14 Comments
To receive these entries once a month by e-mail, sign up for the Crypto-Gram Newsletter.
Leading to anything other than publicity for himself ?
I think I might sue the vatican because God made my toast fall butter side down.
I've often wondered... what power does the Supreme Court have to enforce its rulings? Suppose the Court ruled against the government in some way, and the government bluntly said "go #$% yourself." What happens then?
It seems ugly, but I guess that's the point where the various armed forces and police forces have to choose sides. But those groups are all normally accustomed to taking orders from the government, not from the courts. The courts have no force of their own, so they'll have an uphill battle to gather support.
Still, the government needs legitimacy, and in this country that legitimacy is still closely tied to respect for the institutions. That restraint has been fading (witness the suspension of the ObamaCare mandates with minimal fuss), but directly and explicitly flouting a SCOTUS ruling would, I think, be harder to explain.
Of course, more probable is that the government "cancels" the programs, moves their functions to new secret acronyms, and we repeat the spectacle after about ten years.
How likely is the SCOTUS to reverse its precedent from 1979? (Maryland v Smith) Thirty-plus year old precedents aren't often reconsidered (see: Roe v Wade).
I don't know if every one has read the article Bruce points to with "forth" above by Steven G. Bradbury who headed the "Office of Legal Counsel" to the US Justice Dept under George W. Bush's administration... But the last paragraph and the following sentance should chill many peoples thoughts,
And on issues such as the telephone metadata order, where approval of an order may involve important questions of law and the order's existence is known, outside advocacy groups could ask to submit briefs opposing renewal of the order.
I personaly see no "balance" good or otherwise where "the order's existence" is very very unlikely to be "known" as the FISC FBI/NSA try as hard as possible to keep the knowledge of such "orders" unknown on threat of imprisonment and other judicial sanctions. Thus how the heck can "outside advocacy groups" ask let alone formaly submit briefs to FISC especialy when they cannot even see let alone examin the FISC decisions that form their "case law"...
On more than one occasion, the Ohio Supreme Court has ruled that the taxation method used to fund public schools violates the Ohio Constitution. The other two branches of state government have completely ignored the rulings in total silence. Nothing has changed. Pointedly, the Ohio Supreme Court hasn't said anything either.
In the nineteenth-century Supreme Court ruling against the state of Georgia, there was -- sad to say -- no one to advocate for the Native Americans, so Andrew Jackson got away with ignoring the Supreme Court.
Contrast that to the 1974 Roe vs. Wade decision, a prime example of "legislating from the bench" as some characterize it. In that case there was and still is a strong group of advocates supporting the ruling and making sure it was obeyed. Consequently, no state can get away with ignoring the Supreme Court and eliminating the right to abortion. The pro-choice advocates won't let it happen.
Likewise, should the Supreme Court outlaw the government's domestic spying programs, there are enough anti-NSA advocates with enough clout to make sure such a ruling would not simply be ignored. With a Supreme Court ruling on their side, there would be a lot more people willing to advocate for whistleblowers like Snowden. They might not be able to shut down the NSA's illegal activities, but they could certainly keep them in the limelight. Eventually the public would get riled up enough for some real change to happen.
Bradbury is entitled to his opinion, but does not back up any of his statements with facts. I read it as yet another deliberate attempt at fooling the general public.
If there's a desire for opposing briefs from third parties on important issues, the law already allows them, when consistent with national security.
The USG/DoJ now seems to draw the "national security"-card in nearly every case brought against them, making this statement pretty much ridiculous.
It's important to remember that FISA judges are regular federal judges with life tenure, fully independent of the executive branch.
Only in theory. More than one legal scholar has argued that they are subject to capture and bias because the court meets in secret, hears only the arguments of the government prior to deciding a case and its rulings cannot be appealed or even reviewed by the public. Group polarisation is also almost a certainty since all of the judges are appointed by the same person, nearly all currently serving judges are of the same political party (GOP), hear no opposing testimony and feel no pressure from colleagues or the public to moderate their rulings.
The FISA judges serve the rule of law and the public interest, not the bidding of the government, and they never "rewrite" the law.
Says who ? Based on facts, figures and what Snowden has revealed, everything is indicating the exact opposite of this claim.
My guess is the Supreme Court refuses to even hear the case. Traditionally, the Court only hears cases from people who have "standing", which means that the plaintiff has personally been harmed by the unconstitutional act. In practice, the only time someone might be able to sue on 4th amendment grounds is if the government tried to use unconstitutionally obtained evidence in a trial. You might try a civil suit, but even then you have show clear economic damages.
It is long established law that individuals can never have standing to sue the security apparatus over classified surveillance because any evidence that the individuals might have suffered any harm from the surveillance is classified.
It is more recently established law that classified surveillance programs are exempt from review by courts or oversight by Congress because their highly classified nature requires them to be outside the normal constitutional system of law. For reasons of national security, they are subject only to a parallel system of classified law, created and overseen by the FISA Court. The rigorous impartial review of each surveillance request by the unbiased judges of the FISA Court provides an appropriate level of assurance against any potential abuse or mission creep by the Executive Branch.
According to the law -- section 215 of the Patriot Act -- the government is only allowed to obtain such information if it is "relevant" to an "authorized investigation" and if its use is for very narrow purposes. How could it possibly be that all of the customers of Verizon could be subject to an authorized investigation of the U.S. government?
To us that seems impossible. And that is also the view of some of those who wrote the law and who served on the court that applies the law.
The author then follows, unsurprisingly, by quoting the dismay of some of the authors of these laws.
Yet, there they are, the President, senators, representatives, many in law enforcement, and other government leaders standing behind all of this, arguing it is legal and ethical.
Which tells you they have no understanding of right and wrong.
Zero moral authority.
@Anon: Traditionally, the Court only hears cases from people who have "standing", which means that the plaintiff has personally been harmed by the unconstitutional act.
Spying is, ipso facto, harm.
Rotenberg can and will make the case that he personally, and every U.S. citizen, has indeed been harmed by illegal government spying, and thus he has standing to sue.
Schneier.com is a personal website. Opinions expressed are not necessarily those of Co3 Systems, Inc.