Wednesday, November 13, 2013

Oral arguments next week in 2 cases could torpedo some NSA surveillance/ US News

The first legal cases (outside the secret FISA court and post Snowden) questioning the legality of NSA spying come to the forefront next week.  See the US News piece here.

The first case seeks a broad preliminary injection against "some NSA surveillance programs" and will be heard Monday, Nov 18.  It is a class action brought by Larry Klayman, formerly a Reagan prosecutor and later founder of "Judicial Watch."  He now heads "Freedom Watch".  Oral arguments will be heard by US District Court Judge Richard Leon in DC.

The second, narrower case was brought by the ACLU and seeks an injunction against the collection of phone metadata through Verizon.  Oral arguments will be heard by US District Court Judge William Pauley on November 22 in NYC.

In a November 1 column, Larry Klayman wrote:
Just this week, the Washington Post revealed yet another new outrage of NSA spying on the American people, coming on the heels of revelations that the government has even had the chutzpah to eavesdrop on the cellphone calls of foreign leaders like Germany’s Chancellor Angela Merkel. In an article written by Barton Gellman and Ashkan Soltani in the Post Oct. 30, entitled “NSA Infiltrates Links to Yahoo, Google Data Centers Worldwide, Snowden Documents Say,” they report:
“The National Security Agency has secretly broken into the main communications links that connect Yahoo and Google data centers around the world, according to documents obtained from former NSA contractor Edward Snowden and interviews with knowledgeable officials.
“By tapping those links, the agency has positioned itself to collect at will from hundreds of millions of user accounts, many of them belonging to Americans.
“According to a to a top-secret accounting dated Jan. 9, 2013, the NSA’s acquisitions directorate sends millions of records every day from internal Yahoo and Google networks to data warehouses at the agency’s headquarters at Fort Meade, Md. In the preceding 30 days, the report said, field collectors had processed and sent back 181,280,466 new records – including ‘metadata,’ which would indicate who sent or received emails and when, as well as content such as text, audio and video.
“The NSA’s principal tool to exploit the data links is a project called MUSCULAR. … From undisclosed interception points, the NSA … [is] copying entire data flows across fiber-optic cables that carry information among the data centers of the Silicon Valley giants.
“The infiltration is especially striking because the NSA, under a separate program known as PRISM, has front-door access to Google and Yahoo user accounts through a court approved process…
UPDATE Nov 18:  Without comment, the Supreme Court declined Monday to hear a case challenging the constitutionality of the National Security Agency's vast collection of telephone and electronic data.  The case had been brought by the Electronic Privacy Information Center (EPIC), which had contended that no other court was open to hear a challenge to orders of the FISA Court, so the Supreme Court should consider its case now. Unfortunately, the Supremes did not agree.

The jurisdictional issues of exactly what court, if any, has the right to access all information about NSA spying (which FISA lacks) and the jurisdiction to adjudicate the legality of such spying, should be fascinating... and may determine the survival of democratic traditions in the US.  Judge Leon heard arguments today and will rule later on the jurisdictional issues as he sees them.

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