Judge Dismisses Lawsuit Over Warrantless Wiretapping, Appeal Planned

from the to-be-expected,-but... dept

This comes as no surprise, but is still somewhat disturbing. A lawsuit the EFF was involved in over the federal government's warrantless wiretapping program has been dismissed by the court because it "was not a 'particularized injury' but instead a 'generalized grievance.'" This same issue has been raised before. If the government illegally spies on people, how can you prove it? You can't go to court unless you prove that you were harmed by the action, but as long as the government keeps it secret then you can't know. That's why the one case where the gov't accidentally revealed some info is so important. But, still, in this other case, the EFF plans to appeal noting the ridiculousness of the situation:
"The alarming upshot of the court's decision is that so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional," said EFF Senior Staff Attorney Kevin Bankston


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jan 22nd, 2010 @ 12:46pm

    America at "war"

    These illegal activities will probably continue as long as America is at "War", because declaring a state of war allows the government to expand during times of war, along with additional legal headroom to restrict the rights of its citizens to protect the interest of the state and it's sponsor, the military-industrial complex.

    Now if there was no war, my understanding is that Government and its operating budgets would be required to shrink, and rights would be restored to its citizens.

     

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  2.  
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    A Dan (profile), Jan 22nd, 2010 @ 12:58pm

    Re: America at "war"

    There's been no declaration of war, so I'm not sure what your point is.

     

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  3.  
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    Anonymous Coward, Jan 22nd, 2010 @ 1:06pm

    What you don't know can't hurt you.

     

    reply to this | link to this | view in thread ]

  4.  
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    Anonymous Coward, Jan 22nd, 2010 @ 1:12pm

    Re: Re: America at "war"

    ""
    There's been no declaration of war, so I'm not sure what your point is.
    ""

    So it's a boondoggle war...? But as long as it's citizens believe we're in a state of war, and it's continued to be labeled a war in the press, it remains legitimate in the minds of many.

     

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  5.  
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    Anonymous Coward, Jan 22nd, 2010 @ 1:12pm

    I imagine we'll have to wait until the (inevitable) case of some information obtained via a warrantless wiretap being leaked to the detriment of the individual being illegally spied on.

     

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  6.  
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    Nastybutler77 (profile), Jan 22nd, 2010 @ 1:36pm

    Who can take a wiretap...

    and turn it into law? Who can take an FBI illegal search, and say it's not illegal? The Obamaman can.

     

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  7.  
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    :Lobo Santo (profile), Jan 22nd, 2010 @ 1:38pm

    Re: What you don't know...

    Right!! /sarcasm

    Like: I didn't know there was an open manhole there--until I fell in, puncturing one lung on that rebar and breaking both legs.

    Or: I didn't know there was a sniper round coming at my head at some speed resembling the speed of sound.

    Or perhaps: I didn't know holding both wires of my AC outlet would electrocute me...

    *sigh* If only.

     

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  8.  
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    Ryan, Jan 22nd, 2010 @ 1:43pm

    Re: America at "war"

    Now if there was no war, my understanding is that Government and its operating budgets would be required to shrink, and rights would be restored to its citizens.

    Right, because Medicaid, Social Security, bailouts, stimuluses, federal subsidies, etc. and the increasing federal takeover of the economy, health care, transportation, education, labor, et. al. are all the result of terrorism.

     

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  9.  
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    Coyote, Jan 22nd, 2010 @ 1:53pm

    Missing the point...

    The issue here is not whether the warrantless wiretapping is legal (doubtful...) but whether it is grounds for a lawsuit. The legality of the activity iteslf is something that is going to have to be settled by congressional action, not in a court of law. You really can't sue based on the premise that "the government MIGHT have been spying on me and everyone else."

    Prove you were unlawfully a target, and things get interesting. Watch that other case carefully.

    Maybe the courts are just sick of the EFF's whining and dubious grounds. Just now then somehow confabulated a link to the phone records thing. Legally obtained or not, phone records never have and never will be considered wiretapping. There is a legal process that must be followed, but a search warrant was NEVER required to obtain them.

    I think the general public is losing interest in what the EFF has to say as well. Been an hour and less than a dozen tinfoil hat wearking kooks have commented so far.

     

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  10.  
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    Dark Helmet (profile), Jan 22nd, 2010 @ 2:03pm

    Re: America at "war"

    Nah, war is too tough, because it actually has to at least LOOK like you're doing something.

    But a technical "state of emergency"? Much, much easier.

    Most people don't realize it, but state of emergency powers for the President are significant.

    They also tend not to know that America has been in a "State of Emergency" since 1933....

     

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  11.  
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    Anonymous Coward, Jan 22nd, 2010 @ 2:05pm

    Re: Re: America at "war"

    ""
    Right, because Medicaid, Social Security, bailouts, stimuluses, federal subsidies, etc. and the increasing federal takeover of the economy, health care, transportation, education, labor, et. al. are all the result of terrorism.
    ""

    The common thread is actually socializing risk that is normally adopted by the businesses that would provide the named services. As a result of the lingering stigma of 9-11, business has come to expect profit without accepting risk or responsibility, which is in turn has no other place to go than to be subsidized by the state and it's citizens. It's possible that completion of a new WTC would help to remove part of this business mentality and requirement to run every decision up the ladder. However, even this can't get out the door due to politicization, red tape, inability to make a decision, and perhaps by what ground zero continues to indirectly symbolize.

     

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  12.  
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    Chargone (profile), Jan 22nd, 2010 @ 2:26pm

    Re: Re: America at "war"

    ... that sounds about as generally unhelpful and exploitable as our 'urgency' thingy for parliament.

    it's Supposed to be so they can deal with things like natural disasters or wars in a timely manner.

    in practice it's used to pass highly unpopular (and often poorly thought out) laws in a the weeks immediately before Christmas without going through the proper process, or even informing the public some times.

    on the up side, urgency cannot be perpetual. the MPs have to sleep Sometime, and urgency requires parliament to stay in session until all issues are dealt with (even if that is by deciding that that particular issue is insufficiently urgent).

    or at least, that's how i understand it.

    buts seriously, 1933? really? that's just weird... and i say that living in a country that still uses English common law. (includes such fun effects as: legally speaking, if you park your car on someone else's property without permission, then leave? it's a cow unless other laws apply due to other factors. *laughs* )

     

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  13.  
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    Anonymous Coward, Jan 22nd, 2010 @ 2:29pm

    Re: Re: America at "war"

    ""
    Most people don't realize it, but state of emergency powers for the President are significant.
    ""

    Correct, and this was one of the reasons that I liked Candidate Obama. During his campaign, he appeared to have more of a hands-off management style, delegating responsibilities to a local level. This was a 180-degree shift from President Cheney whose paranoid delusions needed everything to be run by his desk, and also controlling the narrative via daily talking points pushed out to friendly propaganda outfits such as Fox News. This may even explain Palin's recent gig at Fox. But somehow, I imagine Congress, as well as certain parts of the administration still believe this needs to occur, and decisions need to be run by the executive office for approval instead of allowing the various departments to make the best judgment calls on the areas of their expertise, and providing briefs. This requires more headroom, which could be resolved by limiting lobbying influence in Washington.

     

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  14.  
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    Dark Helmet (profile), Jan 22nd, 2010 @ 2:37pm

    Re: Re: Re: America at "war"

    I get what you're saying, but I don't even let my mind get that far. So I'll repeate:

    The United States has been in a CONSTANT technical state of emergency since 1933, giving the President powers otherwise reserved to Congress.

    As soon as any President takes office and doesn't immediately declare the state of emergency over (which it should be, as defined by the Farm Bill of 1933), then he's fully corrupt and there is no longer any reason for me to listen to anything else he/she has to say. It amounts to treason in my opinion, and I see no reason why at any time during his administration an emergency existed significant enough to grant him the power to issue Executive Orders.

    Executive Orders are extra-constitutional and only became en vogue after the Farm Bill. Since WWII, the number of EOs has exploded, and Bush Jr. issued more EOs than any other President in the history of the country. They are used strictly to circumvent Congress.

    http://en.wikipedia.org/wiki/Executive_order_(United_States)

     

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  15.  
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    jjmsan (profile), Jan 22nd, 2010 @ 2:45pm

    Re: Missing the point...

    "Obama Quietly Issues Ruling Saying It's Legal For The FBI To Break The Law On Accessing Phone Records." What part of this article leads you to believe that the government was not illegally spying on its citizens?

     

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  16.  
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    Nastybutler77 (profile), Jan 22nd, 2010 @ 2:45pm

    Re: Missing the point...

    I believe it is YOU who is missing the point. How are you supposed to prove you've been spied on? That's like saying, "Prove that you're not a Communist."

     

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  17.  
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    Martin, Jan 22nd, 2010 @ 2:52pm

    Re: Re: America at "war"

    I believe the general declaration of "War on Terror" sort of covers it. Since this was done in 2002 in an official capacity we have been at war.

     

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  18.  
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    Anonymous Coward, Jan 22nd, 2010 @ 3:01pm

    Re: Who can take a wiretap...

    and Bush and the republicans are NO better either. They're both bad, we need to eliminate both democrats AND republicans.

     

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  19.  
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    Anonymous Coward, Jan 22nd, 2010 @ 3:10pm

    Re: Missing the point...

    Except...the point is that it's impossible to "prove you were unlawfully a target" in the first place (unless the government screws up).

     

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  20.  
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    Anony1, Jan 22nd, 2010 @ 3:19pm

    believe the general declaration of "War on Terror"..

    Exactly. War on terror, not war on citizens. We keep hearing how this is a war on terror, yet citizens are the ones being targeted. Hmmm..almost as if...totally BS excuses for spying are being used...funny that huh?

    It's the same BS heard in Congress the other day. In explaining why the Christmas day bomber wasn't on a no-fly list, the excuse used by the DNI (Director of National Intelligence) was that people had been afraid to do so, out of political correctness. That the reason was that people didn't want patdowns of Grandma anymore. Here's the thing.
    He's right, and he's wrong. People don't want patdowns of Grandma. What they want are patdowns of guys who buy tickets in cash, one way, and have been reported as potential terrorists to the State Department and the CIA!!!
    So at the same time he's trying to give excuses, he's trying to justify pat downs for Grandmas at the airport.
    You see what he did there?! It's about harrassment of citizens, to get us to "stay in line". It's repugnant, anti-American, and all to common. By all means however, keep electing people like President Obama, and keep buying the BS.....

     

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  21.  
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    Anony1, Jan 22nd, 2010 @ 3:32pm

    Had to find Dennis Blar, DNI's testimony:

    "Blair also said criteria for adding people to the government's "no fly" list was too legalistic and rigid. And he said that in recent years there has been pressure to shrink rather than expand the list because of a cascade of complaints from people getting "hassled" by authorities. "Why are you searching grandmothers?" was a too-common refrain, he said."



    See the total BS response there? Grandams getting searched at the airport has NOTHING to do with the standards for the no-fly list. NOT A DAMN THING. It has to do with the list being inaccurate, not the standards for placement on the list. The implied inverse in his statement is that a less rigid standard is needed, AND (here's the kicker) that such lower standards mean that non-terrorists might be mistakenly get extra-screening. In other words "so sorry we're incompetent, but that requires innocent people to get extra scrutiny". Instead of "we'll fix the system". This from the man who is the DIRECTOR of NATIONAL intelligence!!!
    Still confident in government people? LOL...

     

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  22.  
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    nasch (profile), Jan 22nd, 2010 @ 4:14pm

    Re: Re: What you don't know...

    Or: I didn't know there was a sniper round coming at my head at some speed resembling the speed of sound.

    Totally OT, but in case you're interested, some rifle rounds exit the barrel (muzzle velocity) at speeds close to mach 3. The speed of sound is 1125 ft/s, and a few rifles fire at around 4000, many around 3000, and lots above 2000.

     

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  23.  
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    Anonymous Coward, Jan 22nd, 2010 @ 5:29pm

    Re: Re: America at "war"

    What are you - one of those anarchy dudes ?

     

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  24.  
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    Friction, Jan 22nd, 2010 @ 5:33pm

    Re: Re: Re: What you don't know...

    Yes, but being ballistic they do not maintain that velocity. By the time it reaches the target, velocity may have decreased by over 50%

     

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  25.  
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    Anonymous Coward, Jan 22nd, 2010 @ 6:36pm

    Re: Re: Re: America at "war"

    Remember Remember the 5th of november ....

     

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  26.  
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    Allen (profile), Jan 22nd, 2010 @ 7:25pm

    This story and Obama Quietly Issues Ruling Saying It's Legal For The FBI To Break The Law On Accessing Phone Records and once again I'm wondering how so many US citizens can claim to be leaders of the free world with a straight face.

    I don't expect any better from the Chinese. Is it too much to ask better from the US?

     

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  27.  
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    The Anti-Mike (profile), Jan 22nd, 2010 @ 7:31pm

    I have to say that the lawyer's comments are both amusing and a little bit of sour grapes.

    "The alarming upshot of the court's decision is that so long as the government spies on all Americans, the courts have no power to review or halt such mass surveillance even when it is flatly illegal and unconstitutional," said EFF Senior Staff Attorney Kevin Bankston

    I would have to say that Mr Bankston should probably do a little better groundwork and actually find an individual case to argue. The courts ruled correctly (there is no specific case to argue in front of them). He needs to find a case to argue and then argue it. What was presented here appears to be mostly something that would be put forth as part of a supreme court argument, not a specific case.

    The EFF does some really good work, but this is one of those examples where it is just flailing around without a foothold.

     

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  28.  
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    Anonymous Coward, Jan 22nd, 2010 @ 8:28pm

    Re:

    Except of course that you can't "find a case" when all the illegal spying is secret.

     

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  29.  
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    The Anti-Mike (profile), Jan 22nd, 2010 @ 11:08pm

    Re: Re:

    as a result, how do they know it is happening?

    If you can't show something, how would you take it to court?

     

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  30.  
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    Anonymous Coward, Jan 23rd, 2010 @ 1:09am

    Re:

    You nailed it, Anony1

     

    reply to this | link to this | view in thread ]

  31.  
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    Al, Jan 24th, 2010 @ 11:07pm

    Re: Re: Re: Re: What you don't know...

    True, so maybe you will hear the gunshot .5 seconds after the slug exits your head!

     

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  32.  
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    Maddy, Jan 25th, 2010 @ 8:43pm

    Re: Re: America at "war"

    That isn't saying much. The last "declaration of war" by Congress was WWII. So, Vietnam, the Gulf War... weren't actually "wars". Huh.

     

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  33.  
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    Maddy, Jan 25th, 2010 @ 8:52pm

    Re: Re: Re: America at "war"

    Maybe he's just a person who would like to see the government revert back to its proper role of protecting individual liberties, a la Declaration of Independence. And, by the way, when "any Form of Government becomes destructive of these ends [securing the unalienable rights], it is the Right of the People to alter or to abolish it". So, anarchy, no. Reapplying popular sovereignty and Lockeian ideals to our government? Yes. I don't know about you, but I didn't enter into this social contract so that I could be indiscriminately wiretapped without any reasonable suspicion. What happened to America's huge push for free speech? And privacy?

     

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  34.  
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    Anonymous Coward, Feb 17th, 2010 @ 8:30pm

    Re: America at "war"

    THIS IS WHY AMERICA HAS STAYED IN SOME SORT OF WAR SINCE ESTABLISHED AFTER THE REVOLUTIONARY WAR IN 1776.

     

    reply to this | link to this | view in thread ]


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