Civil Liberties Board Completely Destroys Arguments For Bulk Metadata Collection: Program Is Both Illegal And Unconstitutional

from the which-will-now-be-ignored dept

As expected, the Privacy and Civil Liberties Oversight Board (PCLOB) has come out with it’s quite scathing report concerning the federal government’s interpretation of Section 215 of the PATRIOT Act. The full report is quite readable and well worth reading, no matter how familiar you are with the program. If you’re not familiar, it lays out all the details. If you are familiar, it still may fill in a number of useful gaps as well. While the full recommendations and conclusions were not supported unanimously by the board, the majority did agree that not only is the program unconstitutional, but that it involves a gross misinterpretation of the law. The executive summary makes the point pretty clearly:

Section 215 is designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when those records are relevant to the investigation. Yet the operation of the NSA’s bulk telephone records program bears almost no resemblance to that description. While the Board believes that this program has been conducted in good faith to vigorously pursue the government’s counterterrorism mission and appreciates the government’s efforts to bring the program under the oversight of the FISA court, the Board concludes that Section 215 does not provide an adequate legal basis to support the program.

There are four grounds upon which we find that the telephone records program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation as required by the statute without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) — an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything.

In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders.

Finally, we do not agree that the program can be considered statutorily authorized because Congress twice delayed the expiration of Section 215 during the operation of the program without amending the statute. The “reenactment doctrine,” under which Congress is presumed to have adopted settled administrative or judicial interpretations of a statute, does not trump the plain meaning of a law, and cannot save an administrative or judicial interpretation that contradicts the statute itself. Moreover, the circumstances presented here differ in pivotal ways from any in which the reenactment doctrine has ever been applied, and applying the doctrine would undermine the public’s ability to know what the law is and hold their elected representatives accountable for their legislative choices.

Basically, in those four short paragraphs, the PCLOB dismantles nearly all of the arguments that people have put forth to support the bulk collection of metadata, and make it clear that the DOJ, NSA and FISC are clearly twisting the plain language meaning of Section 215 to support what is ultimately an unconstitutional program.

On that front, the report notes clearly the Constitutional issues:

The NSA’s telephone records program also raises concerns under both the First and Fourth Amendments to the United States Constitution. We explore these concerns and explain that while government officials are entitled to rely on existing Supreme Court doctrine in formulating policy, the existing doctrine does not fully answer whether the Section 215 telephone records program is constitutionally sound. In particular, the scope and duration of the program are beyond anything ever before confronted by the courts, and as a result of technological developments, the government possesses capabilities to collect, store, and analyze data not available when existing Supreme Court doctrine was developed. Without seeking to predict the direction of changes in Supreme Court doctrine, the Board urges as a policy matter that the government consider how to preserve underlying constitutional guarantees in the face of modern communications technology and surveillance capabilities.

While the PCLOB repeatedly states it believes that the government acted in good faith, it nonetheless finds the program immensely troubling. The idea that collecting all phone metadata is okay simply is not supported by what the law itself actually says:

Notably, Section 215 requires that records sought be relevant to “an” authorized investigation. Elsewhere, the statute similarly describes the records that can be obtained under its auspices as those sought “for an investigation.” The use of the singular noun in these passages signals an expectation that the records are being sought for use in a specific, identified investigation. This interpretation is reinforced by the requirement that the FISA court make specific findings about the investigation for which the records are sought — that it is supported by a factual predicate, conducted according to guidelines approved by the Attorney General, and not based solely upon activities protected by the First Amendment when conducted of a U.S. person.

[….] The government’s approach, in short, has been to declare that the calling records being sought are relevant to all of the investigations cited in its applications. This approach, at minimum, is in deep tension with the statutory requirement that items obtained through a Section 215 order be sought for “an investigation,” not for the purpose of enhancing the government’s counterterrorism capabilities generally. Declaring that the calling records are relevant to every counterterrorism investigation cited by the government is little different, in practical terms, from simply declaring that they are relevant to counterterrorism in general.

That is particularly so when the number of calling records sought is not limited by reference to the facts of any specific investigation. At its core, the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations. The Board does not believe that this approach comports with a fair reading of the statute.

Moreover, this approach undermines the value of an important statutory limitation on the government’s collection of records under Section 215. The statute provides that records cannot be obtained for a “threat assessment,” meaning those FBI investigatory activities that “do not require a particular factual predicate.”201 By excluding threat assessments from the types of investigations that can justify an order, Congress directed that Section 215 not be used to facilitate the broad and comparatively untethered investigatory probing that is characteristic of such assessments. But by collecting the nation’s calling records en masse, under an expansive theory of their relevance to multiple investigations, the NSA’s program undercuts one of the functions of the “threat assessment” exclusion: ensuring that records are not acquired by the government without some reason to suspect a connection between those records and a specific, predicated terrorism investigation. While the rules governing the program limit the use of telephone records to searches that are prompted by a specific investigation, the relevance requirement in Section 215 restricts the acquisition of records by the government.

The PCLOB clearly sees through the feds’ ridiculous re-interpretation of the word “relevant” as well — calling it “untenable” and “dangerously overbroad.”

The government has argued, and the FISA court has agreed, that essentially the entire nation’s calling records are “relevant” to every counterterrorism investigation cited in the government’s applications to the court. This position is untenable. Moreover, the interpretation of Section 215 adopted by the FISA court is dangerously overbroad, leading to the implication that virtually all information may be relevant to counterterrorism and therefore subject to collection by the government.

Later, the report argues that the government’s interpretation “is circular and deprives the word ‘relevant’ of any interpretive value.”

All records become relevant to an investigation, under this reasoning, because the government has developed an investigative tool that functions by collecting all records to enable later searching. The implication of this reasoning is that if the government develops an effective means of searching through everything in order to find something, then everything becomes relevant to its investigations. The word “relevant” becomes limited only by the government’s technological capacity to ingest information and sift through it efficiently.

The PCLOB also totally debunks the line trotted out by numerous NSA defenders that this program is no different than a grand jury subpoena. Not so, says the board:

To determine what might be the outer limits of a grand jury subpoena, we have examined both the cases cited by the government and others. There has never been a grand jury subpoena as broad as the FISA court’s Section 215 orders. And contrary to the government’s suggestion, the case law does not hold that the breadth of a grand jury subpoena is unlimited, but rather that a subpoena must be designed to address the circumstances of a specific investigation.

One decision, In re Grand Jury Proceedings, merely explains that district courts assessing the relevance of subpoenaed materials should not proceed “document-by-document,” but should instead evaluate whether each “broad category” of requested materials could contain possibly relevant documents. The former approach would “unduly disrupt the grand jury’s broad investigatory powers” and force the government “to justify the relevancy of hundreds or thousands (or more) of individual documents, which it has not yet even seen[.]” Often the government “is not in a position to establish the relevancy with respect to specific documents,” because “it may not know the precise content of the requested documents” and “it may not know precisely what information is or is not relevant at the grand jury investigative stage.” Accepting the “incidental” production of irrelevant documents, when measured by the hundreds or thousands, does not support the legitimacy of the Section 215 calling records program, in which the NSA potentially collects billions of records per day with full knowledge that virtually all of them are irrelevant.

It goes on to point to a number of other cases and how the government’s interpretation of them is simply bogus.

It also points out that screaming “but… but… terrorism!” is no excuse either:

Finally, the heightened importance of counterterrorism investigations, as compared with typical law enforcement matters, does not alter the equation. Items either are relevant to an investigation or they are not — the significance of that investigation is a separate matter. No matter how critical national security investigations are, therefore, some articulable principle must connect the items sought to those investigations, or else the word “relevant” is robbed of meaning. Congress added a relevance requirement to Section 215 in 2006 knowing full well that the statute governs national security investigations. It cannot, therefore, have meant for the importance of such investigations to efface that requirement entirely.

There’s also an interesting tidbit, noting that Section 215 was designed specifically and solely for the FBI, not the NSA — yet it is used here by the NSA (who then may share the info with lots of other agencies):

Section 215 expressly allows only the FBI to acquire records and other tangible things that are relevant to its foreign intelligence and counterterrorism investigations. Its text makes unmistakably clear the connection between this limitation and the overall design of the statute. Applications to the FISA court must be made by the director of the FBI or a subordinate. The records sought must be relevant to an authorized FBI investigation. Records produced in response to an order are to be “made available to,” “obtained” by, and “received by” the FBI.

[….] Under the bulk telephone records program, however, the FBI does not receive any records in response to the FISA court’s orders. While FBI officials sign every application seeking to renew the program, the calling records produced in response to the court’s orders are never “made available to the Federal Bureau of Investigation” or “received by the Federal Bureau of Investigation,” as called for by the statute.335 Instead, the FISA court’s orders specifically direct telephone companies to “produce to NSA” their calling records — thwarting congressional intentions regarding the role each agency is to play in counterterrorism efforts that involve the collection of information within the United States about Americans.

In compliance with the FISA court’s orders, telephone companies that are subject to this program transmit their calling records to the NSA. The records are not delivered to the FBI and are never passed on to the FBI by the NSA. Instead, the NSA stores the records in its own databases, conducts its own analysis of them, and provides reports to various federal agencies — including but not limited to the FBI — with information about telephone communications that “the NSA concludes have counterterrorism value.”

In fact, the PCLOB notes, the FISC orders on this program actually prohibit the NSA from giving much of the information to the FBI, despite the fact that the law is only designed to be used by the FBI.

There’s another section detailing how the FISA Court more or less ignores ECPA (the Electronic Communications Privacy Act) which the bulk metadata collection program clearly violates. The report notes that the FISC more or less admits this, and then says that Congress couldn’t really have meant to say what the ECPA law says.

The FISA court concluded that its orders authorizing the NSA’s program were consistent with ECPA. In reaching this conclusion, the court first determined that the terms of Section 215 and ECPA were in tension. Both statutes could not both be given “their full, literal effect,” wrote the court, because Section 215 authorizes the production of “any tangible things,” and applying the prohibitions of ECPA would limit the meaning of the word “any.”

Instead, the PCLOB gives a fairly compelling argument for why the FISC is just wrong on this:

As the FISA court acknowledged, the very statute that created Section 215, the Patriot Act, also amended ECPA “in ways that seemingly re-affirmed that communications service providers could divulge records to the government only in specified circumstances” — without including FISA court orders issued under Section 215. The fact that the same statute both created Section 215 and amended ECPA, but without adding an exception to ECPA for Section 215 orders, undermines the notion that ECPA and Section 215 are in conflict, and provides an additional basis for strictly adhering to ECPA’s prohibitions by not inferring unwritten exceptions to those prohibitions. It also demonstrates that another fundamental canon of statutory construction applies here — that the inclusion of some implies the exclusion of others not mentioned. “Where there is an express exception, it comprises the only limitation on the operation of the statute and no other exceptions will be implied.” Congress did not add an exception to ECPA for Section 215 orders, even though it amended ECPA in other ways at the same time that it created Section 215. That omission should be respected.

As for the claim that because Congress re-enacted Section 215, it clearly approves of the bizarre reinterpretation of it by the FISC and the executive branch, the PCLOB rejects this, claiming it, too, is a “novel proposition” reinterpreting the “reenactment doctrine” beyond its intended purpose. And part of that, of course, is the fact that the FISA and NSA/DOJ interpretations were all kept really secret from Congress:

The “reenactment doctrine” does not trump the plain meaning of a law, but rather is one of many interpretive tools that come into play when statutory ambiguity demands an inquiry into congressional intent. Reenactment, in other words, “cannot save” an administrative or judicial interpretation that contradicts the requirements of the statute itself. And for the many reasons explained above, any interpretation of Section 215 that would authorize the NSA’s telephone records program is irreconcilable with the plain words of the statute, its manifest purpose, and its role within FISA as a whole.

Even if Section 215 were sufficiently ambiguous to justify an inquiry into congressional intent, the circumstances presented here are unlike any in which the reenactment doctrine has ever been applied — and the differences are pivotal. First, there was no judicial interpretation of Section 215 of which Congress could have been aware in 2010 or 2011: at that time the FISA court had never issued any opinion explaining the legal rationale for the NSA’s program under Section 215, but had merely signed orders authorizing the program. Second, even if the FISA court’s orders, combined with the government’s applications to the court, are viewed as an “interpretation” of Section 215, members of Congress may have been prohibited from reading those orders and those applications (except for members of the intelligence and judiciary committees) by operation of committee rules. Thus, to apply the reenactment doctrine here, Senators and Congressmen must be presumed to have adopted an “interpretation” that they had no ability to read for themselves. Third, even if being apprised of the NSA’s program were equivalent to being made aware of a judicial interpretation of a statute, applying the reenactment doctrine is improper where members of Congress must try to comprehend a secret legal interpretation without the aid of their staffs or outside experts and advocates. That scenario robs lawmakers of a meaningful opportunity to gauge the legitimacy and implications of the legal interpretation in question. Fourth, Congress did not reenact Section 215 at all in 2010 and 2011, but merely delayed its expiration. To our knowledge, no court has applied the reenactment doctrine under a combination of circumstances remotely like this.

Oh, and then there’s this:

Finally, even if Section 215 were ambiguous about whether it authorizes the NSA’s bulk collection of telephone records, and even if the reenactment doctrine could be extended to the novel circumstances presented here, doing so would undermine the ability of the American public to know what the law is, and to hold their elected representatives accountable for their legislative choices. Applying the reenactment doctrine to legitimize the government’s interpretation of Section 215, therefore, is both unsupported by legal precedent and unacceptable as a matter of democratic accountability.

In other words, no, you can’t have secret laws and secret interpretations.

Moving on to the constitutional questions, the PCLOB takes a look at the 4th Amendment and the third party doctrine. Unlike many knee jerk NSA defenders, the PCLOB notes that there are significant problems with applying the infamous Smith v. Maryland ruling to the bulk metadata collection program:

[Smith v. Maryland] does not provide a good fit for the telephone records program, particularly in light of rapid technological changes and in light of the nationwide, ongoing nature of the program. The NSA’s Section 215 program gathers significantly more information about each telephone call and about far more people than did the pen register surveillance approved in Smith (essentially everyone in the country who uses a phone) and it has collected that data now for nearly eight years without interruption.441 In contrast, the pen register approved in Smith v. Maryland compiled only a list of the numbers dialed from Michael Lee Smith’s telephone. It did not show whether any of his attempted calls were actually completed — thus it did not reveal whether he engaged in any telephone conversations at all. Naturally, therefore, the device also did not indicate the duration of any conversations. Furthermore, the pen register provided no information about incoming telephone calls placed to Smith’s home, only the outbound calls dialed from his telephone.

The pen register was in operation for no more than two days. And finally, the device recorded only the dialing information of one person: Smith himself. The police had no computerized ability to aggregate Smith’s dialing records with those of other individuals and gain additional insight from that analysis.

In contrast, for each of the millions of telephone numbers covered by the NSA’s Section 215 program, the agency obtains a record of all incoming and outgoing calls, the duration of those calls, and the precise time of day when they occurred. When the agency targets a telephone number for analysis, the same information for every telephone number with which the original number has had contact, and every telephone number in contact with any of those numbers. And, subject to regular program renewal by the FISA court, it collects these records every day, without interruption, and retains them for a five year time period. Sweeping up this vast swath of information, the government has explained, allows the NSA to use “sophisticated analytic tools” to “discover connections between individuals” and reveal “chains of communication” — a broader power than simply learning the telephone numbers dialed by a single targeted individual.

To illustrate the greater scope of the NSA’s program, the pen register discussed in Smith might have shown that, during the time that Michael Lee Smith’s telephone was monitored, he dialed another number three times in a single day. That information could have simply evinced three failed attempts to reach the other number. The NSA’s collection program, however, would show not only whether each attempted call connected but also the precise duration and time of each call. It also would reveal whether and when the other telephone number called Smith and the length and time of any such calls. Because the NSA collects records continuously and stores them for five years, it would be in a position to see how frequently those two numbers contacted each other during the preceding five years and the pattern of their contact. And because the agency would have full access to the calling records of the other telephone number as well, it could examine the activity of that other number and see, for instance, whether it ever communicated with any of the same numbers as Smith over a five-year period, or what numbers it communicated with around the time of its calls with Smith. The agency could then do the same thing for every other number that Smith had communicated with in the past five years, employing what it calls contact-chaining analysis. It could then go further and analyze the complete calling records of every number that was called by any of the numbers that ever communicated with Smith — going three “hops” from the original number.

But, that’s not all. The report (like many others) slams the Supreme Court’s reasoning in Smith, quotes “the leading academic treatise” and even third party doctrine supporter Orin Kerr, highlighting how almost no serious scholar thinks the Supreme Court’s reasoning in Smith v. Maryland makes much sense. It quotes numerous other Supreme Court justices and other courts who find the majority ruling in Smith to be profoundly nonsense, and a dangerous attack on the 4th Amendment. And then points out why all of those critics were right:

The implications of this all-or-nothing approach to privacy have grown since the 1970s, as Americans increasingly must share personal information with companies in order to avail themselves of services and products that have become typical features of modern living. Another major criticism of the third-party doctrine, which has gained increased salience in light of these developments, challenges the notion that a customer of such companies, simply by “revealing his affairs to another,” truly chooses to risk “that the information will be conveyed by that person to the Government.” This criticism rejects the idea that conducting business that is essential to contemporary life represents a voluntary decision to lay bare the details of one’s habits to governmental scrutiny.

“For all practical purposes,” Justice Brennan observed in his Miller dissent, “the disclosure by individuals or business firms of their financial affairs to a bank is not entirely volitional, since it is impossible to participate in the economic life of contemporary society without maintaining a bank account.”

Moving on to the First Amendment, the PCLOB also notes serious questions about whether or not the bulk metadata collection violates the prohibition on Congress not to pass laws that infringe on free speech and free association. Citing the NAACP v. Alabama case that clearly stated that having a government reveal groups and associations would violate the First Amendment, the PCLOB takes issue with the collection of so much metadata, that clearly reveals who people associate with:

Although the NSA’s telephone records program does not include an overt disclosure requirement of the type evaluated in such cases as NAACP v. Alabama, its operation similarly results in the compulsory disclosure of information about individuals’ associations to the government. Like the government’s collection of membership lists, its bulk collection of telephone records makes that information available for government analysis and can create a chilling effect on those whose records are being collected.

[….] By indefinitely collecting information about all Americans’ telephone calls, the NSA’s telephone records program clearly implicates the First Amendment freedoms of speech and association. The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes. Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.

There’s much more in the report worth reading, but those are many of the highlights. Honestly, much of it could be turned into the legal briefs that could eventually be used in court against the program.

Next up, the PCLOB will be releasing a report looking at Section 702 of the FISA Amendments Act and programs like PRISM that fit under it. I imagine that will be equally interesting.

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Comments on “Civil Liberties Board Completely Destroys Arguments For Bulk Metadata Collection: Program Is Both Illegal And Unconstitutional”

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out_of_the_blue says:

Now all we need is to de-legitimize corporate spying.

That “Google is voluntary” CRAP dolts try to put over.

Copyright holders wanting to be paid is NOT tyranny, no matter how much you want pornz for free.
On the other hand, Google tracking you continually to affect at least your buying and no way to stop its assaults has intrinsic tyranny: tracking, control, helpless to resist.


Kionae (user link) says:

Re: Re:

“The Privacy and Civil Liberties Oversight Board (PCLOB) is an independent agency within the executive branch of the United States government, established by Congress in 2004 to advise the President and other senior executive branch officials to ensure that concerns with respect to privacy and civil liberties are appropriately considered in the development and implementation of all laws, regulations, and executive branch policies related to terrorism.”

Courtesy of Wikipedia. 🙂

That One Guy (profile) says:


They did not pull any punches there, that report hands out more burns than a state-wide forest fire, and it’s no wonder Obama was so desperate to get his ‘suggestions’ out before this report was made public, it completely demolishes the NSA and WH’s arguments in defense of their actions(or in the case of the WH inaction).

Now for the circus to really swing into action, as the NSA cheerleaders in the houses, WH, and press do everything they can to hide and/or suppress any mention of this report.

art guerrilla (profile) says:

Re: Re: Re: Impressive

NO, its not ‘fun’, its fucking tragic…

at this knife-edge of his story, we are poised to either throw off the shackles of incipient fascism, or we are doomed to 1984-on-steriods…

…and while my comment was posited in the form of black humor, the bleakness of its blackness is that it strikes too close to the truth…

and the truth is: we can NOT trust ‘our’ (sic) leadership to tell us the truth under virtually any circumstances…

so, sure, there may very well have been some formal briefing, etc… so what ? that still doesn’t obviate the factoid that they COULD and -GIVEN the few EXPOSED examples- probably DID do some extracurricular spooking to get the behind-the-scenes activities…

you still are not getting the systemic implications of all this shit: we have established both rationally and empirically that the hoovering up of EVERYTHING has NOTHING to do with fighting terrorism, etc; so what does that leave ?

it leaves a HUGE SYSTEM which is an abomination against the constitution, but serves the information, surveillance, korporate spying, and blackmail purposes of the power elites… PERIOD.

that hasn’t just been going on since nine one one, it has ALWAYS been thus: the powerful, rich, connected use that power to subjugate the majority and steal their labor, land, and bread…

smedley butler tried to tell us, even one of the ultimate insiders -eisenhower- tried to tell us; not to mention all the ‘krazies’ and k-k-k-konspiracy nuts who turned out some of them were not so nutty after all…

(and as someone who railed about ECHELON/TEMPEST/etc for DECADES, i can tell you it feels damn good to FINALLY give the well-deserved mid-finger to the non-thinkers and status-quo pearl-clutchers who vilified like-minded accurate speculators… raspberries to you nimrods!)

now that dog-ordained royalty, and booga-booga religious bullying won’t work, they have to go full authoritarian to keep the rabble in line… and now? The They ™ have the technology to make it stick…

do you get it ? ? ?
they have EARNED the RIGHTFUL mistrust all amerikans should feel about Empire…

they have ALL abrogated their constitutional duties and betrayed their charge to bring about the greatest good for the greatest number…

they serve only one master: mammon…
we are squealing sheeple to be placated with bread and circuses…

when will the sheeple stop chewing their soma-cud and bare their fangs at Empire ? ? ?

Empire is destroying our society, our planet, and our small-dee democracy, but we are too busy struggling to survive and sucking the glass teat, that we’re letting fascism not just creep in on little cat feet, but it is stomping and trampling in on hobnail boots, and yet we look away…

if someone shoots a little white girl wearing a guy fawkes mask, will that set this thing off ? ? ?

Anonymous Coward says:

Re: Impressive

It pulls punches. The legal analysis I’d scathing sure but they stipulate that there was a good faith basis for the governments action and that it is reasonable to argue ‘because terrorism’ by agreeing that there is a ‘heightened importance of counter terrorism.’ Following their report to the letter would stop the programs but not hold anyone accountable.

AricTheRed says:

Say it aint so!

You mean the government having the ability (the same one willing to assisnate citizens while they are on foreign soil with no judicial review?) to know every person I call over a five year period (or more if they, gasp! are lying) and bitch about them to might have a chilling effect on free speech and association?

No way, shut the front door!

Tim R says:

Freedom wonks...

So much for the argument that anti-surveillance folks are civil liberties hippies or outcast virgins living in mom & dad’s basement.

I’m surprised it took this report to bring up the “FBI only” angle of 215. I would have thought this argument had been screamed ad nauseum from the rooftops by now.

(I said I wanted pizza rolls, mom, not this hot pocket crap)

John Fenderson (profile) says:

Re: Re: Freedom wonks...

“civil” == relating to ordinary citizens and their concerns. “liberty” == the state or condition of people who are able to act and speak freely.

So by their opposition to the very term, the hard right (not just, or all, Republicans) confess that they are opposed to freedom for ordinary people. It doesn’t get much more anti-American than that.

Anonymous Coward says:

“the PCLOB repeatedly states it believes that the government acted in good faith” Really? So James Clapper lying to a senate committee while under oath, and in front of cameras about this very program is what they call “good faith”?

These people knew it was illegal, they need to be held accountable, as federal “don’t bend over for the soap” jail time.

These people are now trying to get away with their crimes by saying “our bad, sorry” but they stole from all of us, our basic human right to privacy. Examples need to be made, or else they will try to do it again.

Anonymous Coward says:

Re: "These people knew it was illegal, they need to be held accountable, as federal "don't bend over for the soap" jail time."

In a recent news item Netflix indicated,

“Orange is the New Black Season 2, a reality show, shooting just wrapped up.”

They felt that the new plot line of NSA apologists, and generals (former generals that is) doing hard time in the federal penn would “…really connect with our audience, as we all now know we were the target of illegal/unconstitutional government surveillance!”

Anonymous Coward says:

Re: Re:

I think they were speaking to the intentions of the intelligence community in general prior to being called on the violations. I as well believe that the intelligence community honestly albeit erroneously believe they have always been acting in the best interest of the nation and it’s security even if they believe that they have to violate the Constitution to act in that best interest. Clapper’s lies are merely an attempt to try to cover for their actions despite the fact that he knew they were violating the law. He still believes that he was acting in the nation’s best interest even as flawed as that may seem.

Anonymous Coward says:

Re: Re: Re:

To be clearer about my meaning, I don’t think that these officials (eg. Clapper and Alexander) intend to harm other Americans. I think they actually believe that they are acting in the best interest of the public and from that perspective you could say that they are acting in “good faith.” I think this is what PCLOB means by this. However, I do agree with you that they willfully violated the Constitution, twisted the law to attempt to justify it and lied to try to cover it up and for this they need to be held accountable.

Anonymous Coward says:

Re: Re: Wow, way to come through when called on...

Well that remains to be seen. All they are really authorized to do is investigate and issue reports like this. The question is who will listen and rely on the determinations that they have made. A couple positive things could happen…

1. SCOTUS could take one of the cases to settle the split and then rely on their determinations to determine the programs officially unconstitutional and even possibly overturn Smith.

2. Congress can rely on their determinations and remove section 215 (as well as 702 when that report comes out) just like Sensenbrenner threatened to do or even pass further legislation to explicitly prohibit these sorts of programs.

Anonymous Coward says:

It’s now time for Senators Wyden and Udall to start crowing in public media about this report and make some noise. It verifies and backs them up exactly what they’ve been forced to beat around the bush about without really coming out and saying it.

Make enough noise, it’ll hit the internet strong whether it makes it past lamescream media or not.

Anonymous Coward says:

Re: Re:

Actually this report seems to have so many different angles to attack the programs that NSA would be hard-pressed to reverse all the points raised at once. It is more likely that the report will get delaying silent treatment followed by a massive ad hom on the authors (minus 2!), fear-peddling about them being terrorists, traitors etc. and/or a massive counter-campaign starting to erode the worst points first and slowly making reasons for why the rest is “naive”, “unsolicited by evidence” or something to that extent.

Anonymous Coward says:

agree entirely! the problem is that the FBI, DoJ, NSA, CIA, DHS, and all the other ‘security agencies and the government will completely ignore this whole report!
you can bet a dollar that tomorrow will bring forth those who are up to their necks in this shit with no suction pipe, condemning the report and stating time after time how it must be allowed to continue and fuck the public to boot!
the disturbing thing i find is the way those of the FISC have been doing nothing as far as what they have been trusted to do. that started off with the pathetic report last week, i believe, that if they were given any more to do, they would be unable to do it properly! what a fucking insult! they have met once a month, stamped a paper and gone back to their fishing! if that constitutes work, i want a job like that!

Anonymous Coward says:

I’d be very interested in learning if there is ANY US organization, agency, committee or authourity, that has the power to do ANYTHING about ANY abuses of constitution and/or breaches of law by ANY federally mandated agency.

It is at least 100% clear that We The People have absolutely no power to do so, save via a general country wide strike – something that is utterly impossible among the divided peoples of America.

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