Supreme Court Denies Cert To NSA Case, Allows State Secret Privilege To Roll On Unaltered
from the press-F-to-escape-lawsuit dept
While we’re waiting to see if the Trump-stocked Supreme Court is going to end the internet as we know it, the nation’s top court has been rejecting, without comment, other essential cases that really could have used another set of judicial eyes.
On Wednesday, we covered one of the Supreme Court’s passes — this one involving parody, police, and qualified immunity. The Sixth Circuit granted immunity to Parma, Ohio police officers who raided a local man’s house, seized a bunch of electronics, and arrested him for the supposed crime of “disrupting police service” — all because he had created a parody Parma PD Facebook page that announced local cops were driving around in a van offering abortions and hosting “Pedophile Reform” events.
Most people saw it for what it was: not particularly subtle satire. The officers, however, weren’t laughing, so they decided to violate the page creator’s First Amendment rights. The Appeals Court took two swings at this one, the first one denying immunity because of the obvious First Amendment violations. For some reason during the second review, the judges reversed course and decided there was just enough probable cause to allow the officers to walk away from the suit. The Supreme Court, by denying certification, said basically the same thing: it’s ok for cops to engage in obvious First Amendment violations as long as there’s some law laying around that might very tenuously support an arrest warrant.
The same order list [PDF] contains another rejection by the Supreme Court that’s only going to encourage more dubious government behavior. In the list of things the Supreme Court can’t be bothered to review is the long-running Wikimedia v. NSA lawsuit — one prompted by the Snowden leaks that sought to hold the government accountable for warrantless domestic surveillance. (h/t Jon Brodkin/Ars Technica)
“Certori denied” is all the order says. With those two words, the federal government is allowed to continue chanting “state secrets” any time it wishes to exit a lawsuit over its surveillance activities. Despite Wikimedia offering up one of the NSA’s own documents — one that appeared to show the online, crowd-sourced encyclopedia was one of the agency’s many, many targets — the Fourth Circuit Appeals Court decided the NSA’s national security work was too important to allow further examination, much less a ruling in favor of the surveilled.
That terminates a lawsuit that was imitated nearly eight years ago. The denial makes it far less likely any current or future lawsuits over bulk domestic surveillance will survive judicial review because there is currently no circuit in the country willing to wholly reject the government’s state secrets privilege, even when evidence appears to show the government has engaged in illegal surveillance. What could have been a chance to limit the invocation of government secrecy to dodge litigation has been discarded without comment by this Supreme Court. That means the government wins without having to show its cards, even after the plaintiffs ante’d up on every litigation round.
Given the amount of time and money it takes to challenge the federal government in court, this rejection is going to deter victims of unlawful surveillance from taking their case to court. And that works out just fine for the Executive Branch, which historically hasn’t seen much in the way of checks and balances from an entity explicitly created to do exactly that.
Filed Under: about collection, ed snowden, mass surveillance, nsa, section 702, supreme court, surveillance, upstream, upstream collection
Companies: aclu, wikimedia
Comments on “Supreme Court Denies Cert To NSA Case, Allows State Secret Privilege To Roll On Unaltered”
What makes surveillance illegal? Why should anyone, including the government, be prohibited from assembling publicly available information, even large amounts of it? Did the NSA break into systems without a warrant?
This article seems like an unholy bastard child of Cushing’s obsession with denigrating law enforcement and Bode’s obsession with forcing “privacy” on everyone, even people who couldn’t care less.
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Why don’t you live in a glasshouse? Why do you post anonymously? Why does the 4th amendment exist?
Dishonest jackass.
Re: Re:
But we do live in glass houses. Our phones keep track of where we have gone and send that to various service providers. Stores and websites track what and when we have bought. Video cameras record what’s going on in stores and streets and hallways. License plate traders track cars. The 4th Amendment does not protect what you openly share. It does not prevent what is essentially journalism – the use of publicly available information to determine what had happened. People do not have the right to have their public found held secret. Even before the panopticon, courts had already ruled that searching trash that someone threw away did not require a warrant.
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Except judges
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What makes surveillance illegal? That there is no legal basis for it.
How do you know if there is a legal basis for something? Generally, the courts allow two sides to investigate and request evidence from each other, present their respective cases and then the court determines if some actions were legal or not.
In this situation, one side says “state secret” and the court said “ok, nevermind”.
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The 4th Amendment if done without a warrant.
The 702 program in question has NOTHING to do with “publicly available information.” It’s the upstream program in which the NSA was able to tap the internet backbones and collect and/or scan all traffic that was leaving or entering the US, searching on certain parameters, and collecting all sorts of private data. Beyond that, once collected, the collection was open to being searched by the FBI for totally different reasons, again without a warrant.
Your ignorance on the topic is noted, but you should educate yourself.
You comment seems like it’s from a very ignorant fool who doesn’t know what the fuck he’s talking about.
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That’s the 4th Amendment. It protects people and the stuff they have from being searched. It says absolutely nothing about protecting information that someone has made public or actions they have undertaking in public. If someone overhears a conversation in a bar, or sees someone do something in the street, no search warrant is required for that third party to say what they have seen. Private investigators who follow unfaithful spouses to gather evidence of their affairs are free to do that without needing warrants. Police can wander around looking for people selling drugs on the street without needing a warrant for the subsequent arrest.
Privacy nuts want to extend the 4th Amendment to apply to public information, but that just makes them nuts.
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How to recognize you are just another dishonest looser, you post anonymously while talking about “privacy nuts”. Even the SCOTUS have said that people have a reasonable expectation of privacy in public from the government as per the 4th Amendment. That you don’t know that I’ll just chalk up to you being woefully uninformed by choice.
Since you have proven that you rather be a dishonest looser and woefully uninformed I’m not at all surprised you totally missed the salient point that the NSA actually also collects information that isn’t publicly available.
Now, go and rant to some “friends” that actually don’t like you.
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I post anonymously because the site owner sends all of my signed-in posts to moderation, and I don’t feel like waiting hours or days to see whether he will release them. I’m the guy who’s always talking about woke ideology and the immutable sex of the body, the “hateful hijacker” of threads. All the regulars here know who I am.
Obviously, since I can post as not signed in, sending my signed-in posts to moderation does nothing to prevent me from speaking here. The site owner appears to be hoping that by applying this meaningless form of harassment, I will leave out of anger or frustration. But I won’t.
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You really should seek professional help from a psychiatrist because you sure have some mental problems that needs addressing.
Since there’s no mention of “warrantless surveillance” in the Constitution or Bill of Rights, nor any mention of it in the writings of people from anywhere before that time, it can’t possibly be proscribed by those documents, just like abortion isn’t mentioned. The Supreme Court is just waiting for a case where they can do away with automobiles, airplanes, computers, telephones, microwave ovens, and penicillin and mandate that there are only 13 States. Probably deny women the right to vote, too.
Re: Uhhh
That is exactly what a graduate of Dunning-Kruger Law School would say. Plain reading (while ignoring caselaw) isn’t how laws work in the US, friend.
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There’s no mention either of someone kicking you repeatedly in the nuts because you are stupid, so that must be totally legal, right?
No, the Supreme Court in the Parma case did NOT "sa[y] basically the same thing"
Denial of a petition for a writ of certiorari says NOTHING about the decision that the Supreme Court is not going to review.
Despite the amusing amicus brief from the Onion in support of the petition, that got us all yucking, this was a qualified immunity case with a striking fact pattern and unfortunately the Supreme Court chose not to take it
As Traub Manufacturing Company might have said: Often imitated, never duplicated. Wikimedia, Jewel, Wilner, Akwei, ACLU….
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Thanks for sharing. It is very helpful for me and also informative for all those users who will come to read.
Autocorrect Auto-Errors
Hey Tim:
Seems autocorret auto-error has struck in the follwoing sentence:
That terminates a lawsuit that was imitated nearly eight years ago
I think the lawsuit was initiated, not imitated…if only it were repeatedly imitated…lol