Judge Says Supreme Court Should Overturn Awful Surveillance Precedent, But Until It Does, He Has To Reject Case Against NSA

from the a-small-step dept

We've written plenty about the case Smith v. Maryland, which established the dangerous Supreme Court precedent that there is no 4th Amendment expectation of privacy to be found in any data or information you give to a third party. Judge Richard Leon, back in December, ruled that the NSA surveillance efforts were so different from the situation in Smith (involving police getting dialing information on a single person from the phone company) that it wasn't an applicable precedent in the case in front of him, brought by Larry Klayman. That case is now being appealed.

In a new case, Smith v. Obama (assuming no relation to the "Smith" in the Maryland case), Judge Lynn Winmill, in the Idaho district court, has said that Judge Leon's ruling should be the model for a Supreme Court ruling overturning Smith v. Maryland. However, since no such ruling has taken place, he has to reject the claim in this case:
Judge Leon's decision should serve as a template for a Supreme Court opinion. And it might yet. Justice Sotomayor is inclined to reconsider Smith, finding it “ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” See U.S. v. Jones, 132 U.S. 945, 957 (2012) (Sotomayor, J., concurring). The Fourth Amendment, in her view, should not “treat secrecy as a prerequisite for privacy.”

But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court. This authority constrains the Court from joining Klayman. Accordingly, the Court will grant the defendants’ motion to dismiss and deny Smith's motion for injunctive relief.
There's a bit more to the case overall, as it focuses on "location" data, and it's not entirely clear if the NSA is really collecting location data. However, as Judge Winmill notes, the Supreme Court's rulings in Jones suggest that the Supreme Court may be finally recognizing how outdated Smith v. Maryland is -- and it's good to see other judges recognizing this as well, even if they're constrained by existing precedent elsewhere.

Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    silverscarcat (profile), Jun 4th, 2014 @ 6:34am

    If that case gets over turned...

    And I'm talking about Smith v Maryland here...

    I can *FINALLY* shove it into the face of all the people who claim that the 3rd Party Doctrine is legit.

    Because it's not. It should have NEVER been legit in the first place.

     

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  2.  
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    seedeevee (profile), Jun 4th, 2014 @ 7:55am

    "even if they're constrained by existing precedent elsewhere"

    No judge is "constrained" by any existing precedent.

    They may make a decision that will be overturned, but it is not like someone will come in and arrest them for their judicial opinions.

    The "existing precedent" is, as Chief Asshole Roberts shows, just a cheap way to blow smoke up our asses.

     

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  3.  
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    Digger, Jun 4th, 2014 @ 7:55am

    USSC guilty of Treason

    When will the US Armed forces sack the supreme court, take the traitorous bastards into custody and shoot them?

    That's what they deserve to have happen for their treasonous activities.

     

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  4.  
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    Michael Donnelly (profile), Jun 4th, 2014 @ 8:49am

    Re:

    The district court judge is constrained. If she rules in violation of that clear precedent, the appeal will be fought over the wrong issue: whether it was proper for her to ignore case law as dictated by SCOTUS.

    The order must be appealed up the chain to SCOTUS so they can rule on the merits of the case and overturn Smith. Them's the rules.

    If it does get to Roberts and he is the Chief Asshole like you say (and I at least partially agree), then we can say that part of the system is broken.

     

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  5.  
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    PRMan, Jun 4th, 2014 @ 8:57am

    Re: USSC guilty of Treason

    Right after Obama declares himself dictator?

    I'm not sure that situation would play out like you think.

     

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  6.  
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    Michael, Jun 4th, 2014 @ 9:00am

    Re: USSC guilty of Treason

    Certainly not before the supreme court tells them that they have to stop spying on US citizens.

     

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  7.  
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    John Fenderson (profile), Jun 4th, 2014 @ 9:13am

    Re: USSC guilty of Treason

    "When will the US Armed forces sack the supreme court, take the traitorous bastards into custody and shoot them?"

    Technically, that would be the day the United States ceased to exist (because of the military coup that you're advocating) and very probably the first day of our next civil war.

     

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  8.  
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    Anonymous Coward, Jun 4th, 2014 @ 9:18am

    Let's be perfectly clear here, Mike.

    Judge Winmill completely rejects your argument that Smith v. Maryland and its progeny are not binding precedent for the Fourth Amendment analysis of the NSA surveillance. She also rejects Judge Leon's opinion in Klayman v. Obama that you hold so near and dear.

    Here's an important part of the opinion you didn't quote: "Because Jones does not apply, the weight of authority favors the NSA. The Supreme Court's decision in Smith, supplemented by the Circuit's decisions in Reed, Forrester, and Golden Valley, and the two District Court decisions on point, Clapper and Moalin, support a finding that there is no Fourth Amendment violation here."

    Note too how she doesn't just look at Smith, as you always do. You have to look at the body of law that has developed since Smith, like those cases from the Ninth Circuit that apply Smith to different circumstances.

    That's great if you want to focus on the dicta at the end where she tells us her irrelevant personal opinion, but let's not lose sight of the fact that she absolutely rejects your read of the Fourth Amendment precedent. She in no uncertain terms says that Smith applies, Klayman is wrong, and the NSA surveillance does not violate the Fourth Amendment. So it's yet one more court completely rejecting your views.

     

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  9.  
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    Anonymous Coward, Jun 4th, 2014 @ 9:19am

    Let's be perfectly clear here, Mike.

    Judge Winmill completely rejects your argument that Smith v. Maryland and its progeny are not binding precedent for the Fourth Amendment analysis of the NSA surveillance. She also rejects Judge Leon's opinion in Klayman v. Obama that you hold so near and dear.

    Here's an important part of the opinion you didn't quote: "Because Jones does not apply, the weight of authority favors the NSA. The Supreme Court's decision in Smith, supplemented by the Circuit's decisions in Reed, Forrester, and Golden Valley, and the two District Court decisions on point, Clapper and Moalin, support a finding that there is no Fourth Amendment violation here."

    Note too how she doesn't just look at Smith, as you always do. You have to look at the body of law that has developed since Smith, like those cases from the Ninth Circuit that apply Smith to different circumstances.

    That's great if you want to focus on the dicta at the end where she tells us her irrelevant personal opinion, but let's not lose sight of the fact that she absolutely rejects your read of the Fourth Amendment precedent. She in no uncertain terms says that Smith applies, Klayman is wrong, and the NSA surveillance does not violate the Fourth Amendment. So it's yet one more court completely rejecting your views.

     

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  10.  
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    Groaker (profile), Jun 4th, 2014 @ 9:32am

    What ever happened to fiduciary duty?

     

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  11.  
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    Anonymous Coward, Jun 4th, 2014 @ 9:49am

    Re:

    I've read the decision about 3 or 4 times and nowhere can I find that she says Klayman is wrong. Would you mind elaborating on this point? I don't necessarily disagree with the rest of what you are saying, I just don't read that particular bit myself in the text.

    Thanks.

     

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  12.  
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    Mike Masnick (profile), Jun 4th, 2014 @ 9:53am

    Re:

    Judge Winmill completely rejects your argument that Smith v. Maryland and its progeny are not binding precedent for the Fourth Amendment analysis of the NSA surveillance. She also rejects Judge Leon's opinion in Klayman v. Obama that you hold so near and dear.

    That's not actually true. Judge Winmill notes that, given the situation, the court is bound by those precedents, even if it feels those precedents are incorrect.

    Note too how she doesn't just look at Smith, as you always do. You have to look at the body of law that has developed since Smith, like those cases from the Ninth Circuit that apply Smith to different circumstances.

    Right, but all of those are based on Smith. If the court is pointing out that Smith is incorrect, all of those other precedents would also be up for grabs.

     

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  13.  
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    rapnel, Jun 4th, 2014 @ 9:57am

    Re:

    It's clear that you know how this works but I believe the point is that even though the compass might be pointing to true north right now there is a magnetic shift occurring and true north may just settle into a different position.

    Smith v Maryland is untenable as the corner stone of surveillance. It has become the primary foothold, save state's secrets doctrines, of that which is in clear conflict with the text of the constitution to which all case law must eventually defer.

    The fact that a handful of cases can prevent even fleeting consideration of new facts, new findings and new realities, to me, indicates a cracked barrel. Structure fault.

     

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  14.  
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    Anonymous Coward, Jun 4th, 2014 @ 10:16am

    That's not actually true. Judge Winmill notes that, given the situation, the court is bound by those precedents, even if it feels those precedents are incorrect.

    It's completely true. Judge Winmill applies Smith and its progeny to find that the NSA surveillance does not violate the Fourth Amendment. That's the holding of the case. Her personal opinion that Smith should be revisited is irrelevant dicta. It doesn't matter whether she thinks those precedents were wrongly decided. She applied those precedents and rejected your reading of them. Own up to it. Applying precedent, she thinks it's not unconstitutional. That's the opposite of what you have said.

    Right, but all of those are based on Smith. If the court is pointing out that Smith is incorrect, all of those other precedents would also be up for grabs.

    You missed the point. Yes, those precedents rely on Smith, but they also expand the holding of Smith to other contexts. You always point at Smith and say how the NSA surveillance is different than the particular surveillance in Smith. But Smith isn't the only case that matters. There's later Supreme Court, appellate court, and trial court opinions that have built upon Smith--and you conveniently never discuss that. The point remains that Judge Winmill actually applied Smith and its progeny and actually held that under those precedents the NSA surveillance does not violate the Fourth Amendment. That Judge Winmill thinks a different result should follow should the Supreme Court change its view is irrelevant. The thing is, the Fourth Amendment turns on what the law actually is, not what we wish it would be, and that's why Judge Winmill upheld the constitutionality of the NSA surveillance.

     

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  15.  
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    Anonymous Coward, Jun 4th, 2014 @ 10:27am

    I've read the decision about 3 or 4 times and nowhere can I find that she says Klayman is wrong. Would you mind elaborating on this point? I don't necessarily disagree with the rest of what you are saying, I just don't read that particular bit myself in the text.

    Thanks.


    Mike quoted it in the article above: "Judge Leon’s decision should serve as a template for a Supreme Court opinion. And it might yet. . . . But Smith was not overruled, and it continues – along with the Circuit decisions discussed above – to bind this Court."

    Judge Leon had held that Smith did not apply. Judge Winmill disagrees and holds that Smith does apply. She's saying that the Supreme Court could use Judge Leon's opinion as a template for an opinion overruling its own opinion Smith. But since the Court hasn't done that, Judge Leon is wrong and Smith still controls.

     

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  16.  
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    Mike Masnick (profile), Jun 4th, 2014 @ 10:36am

    Re:

    Judge Leon had held that Smith did not apply. Judge Winmill disagrees and holds that Smith does apply. She's saying that the Supreme Court could use Judge Leon's opinion as a template for an opinion overruling its own opinion Smith. But since the Court hasn't done that, Judge Leon is wrong and Smith still controls.

    That's not accurate. Winmill is pointing out two things: (1) the Leon ruling is over a slightly different matter and (2) the Leon ruling is, of course, not precedential on a totally different district court. Nowhere does it say the ruling is *wrong*. Just that it has no precedent here.

    If you read the whole ruling you'll see that since the cases are not actually about the same program, the Leon ruling is less relevant as well.

     

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  17.  
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    Anonymous Coward, Jun 4th, 2014 @ 10:57am

    That's not accurate. Winmill is pointing out two things: (1) the Leon ruling is over a slightly different matter and (2) the Leon ruling is, of course, not precedential on a totally different district court. Nowhere does it say the ruling is *wrong*. Just that it has no precedent here.

    I'm not sure what you mean by a "different matter." Both cases are over NSA surveillance of telephony metadata. And of course Klayman is not binding precedent. That's not why Judge Winmill doesn't follow it. She doesn't follow it because she's duty-bound to follow Smith and its progeny in the Ninth Circuit, which she says applies to the NSA surveillance. Those Ninth Circuit cases would not have been binding on Judge Leon, so there is that difference. But her ultimate holding is that Smith applies, which is the opposite of what Judge Leon held (and what you believe should be the law). Therefore, she disagrees with Judge Leon. If you think the cases involved different programs, please explain. Thanks.

     

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

  18.  
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    David, Jun 4th, 2014 @ 11:38am

    Re: If that case gets over turned...

    Oh, the third party doctrine certainly is valid: you have no reasonable expectation of privacy unless you vote for a third party.

     

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  19.  
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    Quiet Lurcker, Jun 4th, 2014 @ 11:52am

    Re: USSC guilty of Treason

    I'm not concerned about Armed Forces going after SCOTUS. I'd rather they concentrated on the president, the cabinet, the house of representatives, and the senate. Those are the people what need arrested/tried/(hopefully) convicted of treason.

     

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


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