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NSA verses Verizon

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In an effort to test the waters, a large unnamed phone service provider tried to challenge the National Security Agency (NSA) and not pass along the coveted “metadata” the federal intelligence agencies claim is essential to fight the “war on terror.”

Watch Kimberly’s One America News TV segment here

It didn’t go well for the phone company, on March 20th they were ordered by the court, under double secret Foreign Intelligence Surveillance Court (FISC) Judge Rosemary Collyer to continue breaking the privacy agreements companies make with their customers. The declassified opinion came from a secret “appellate” court most American’s don’t even know it exists.

A previous decision by Judge Richard Leon issued a memorandum opinion in December, 2013 gave the giant telecom company hope. The federal judge in Washington, D.C. declared the NSA’s mass phone surveillance was likely unconstitutional. The ruling is the first successful case against the Obama administration’s controversial spying program and the judge ordered the plaintiff’s data should be purged from its system.

The Klayman v. Obama case undermines the government’s claim that its bulk phone surveillance program is illegal. Judge Leon found the “Bulk telephone metadata collection and analysis almost certainly does violate a reasonable expectation of privacy, which, in turn, likely results in a violation of the Fourth Amendment.”

The Judge also emphasized that “the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.”

Shortly after the winning decision, plaintiff Larry Klayman explained to CNN that the decision was a victory for Americans; “Let’s talk about the NSA, let’s not talk about Larry Klayman. This victory is for the American people. It wasn’t for me. And you, as somebody from the left … should appreciate that you don’t have a police state in this country that’s going to be able to intimidate Americans to chill their free speech rights. The NSA has data on all of us.”

However it wasn’t meant to be.

The latest 31-page ruling, FISC Judge Rosemary Collyer rejected Judge Leon's reasoning, saying it’s “unpersuasive.” She cited a 1979 Supreme Court case Smith v. Maryland, and said people have no Fourth Amendment rights over the metadata they share with telecom providers.

“The aggregate scope of the collection and overall size of NSA’s database are immaterial in assessing whether any person's reasonable expectation of privacy has been violated,” she wrote.

In the Verizon case, the FISA judge ruled that Verizon could not bring a Fourth Amendment claim asserting unreasonable search and seizure against its customers because the Fourth Amendment is an individual claim and cannot be asserted by a proxy. However, in the interests of justice, efficiency, and economy, a court would often consider converting the claim on behalf of millions of prospective claimants to a class action or order it re-filed as such. Because of the secret nature of the FISA court, it is impossible to determine if such a vehicle is possible as it would be in Article III courts, but highly unlikely because of the secrecy aspects.

Therefore, the FISA judge ruled Verizon had no standing to raise unreasonable search and seizure on behalf of its customers under the Fourth Amendment.

Even more intriguing is the reasoning the court applied in rejecting Judge Leon's opposite finding on a similar issue by holding that customers do not have a reasonable right of privacy when they relate confidential information to another party, in this case, their telephone metadata to Verizon.

The reasoning flies in the face of reason because Verizon has provided a Privacy Statement to customers saying it will not misuse the metadata of its customers. Generally a disclosure of confidential data would constitute a breach of contract allowing the non-breaching party to recover damages against the breaching party, but since the breaching party was compelled by the FISA court to disclose there is no remedy for the unauthorized disclosure. But Judge Collyer cites long-standing law that confidential information disclosed to the government is admissible evidence because the government did not breach the confidentiality agreement, rather the disclosing party breached the contract and would be subject to damages to the non-breaching party. While that is true, Judge Collyer fails to acknowledge that Verizon did not willfully disclosed the information in breach of the confidentiality agreement, it did so under coercion from the National Security Agency.

Therefore, Judge Collyer's argument fails because Verizon would not have disclosed its customers' confidential information but for the fact it was subjected to incarceration and fines for failure to comply with the NSL!

In ALL cases, tainted evidence is inadmissible unless it can be clearly shown that the information could have been obtained through untainted process.

One cannot argue the customers have no expectation of privacy from willful or inadvertent disclosure by its confident when that confidant’s conduct is coerced by secret action threatening incarceration and fines. Furthermore, if there was no duty to protect the information in accordance with the privacy policies of the company and acknowledged by the customer then customers would never have recourse for the unauthorized disclosure of confidential information.

Lastly, when case name was adopted, telephone companies did not issue privacy policies as they do now. So whereas prior customers may not have had an expectation of privacy in their telephone metadata, modern subscribers do. No longer do calls route through party line operators where there was no opportunity for privacy. Today, all calls are handled by electronic circuits that neither eavesdrop on calls nor track the connections-- they merely seek the fastest route for the call, connect, and move to the next call. There is no human interaction in the telephone metadata except for the NSA. Secrecy and anonymity are guarantied but for the intrusions of the all-knowing government of George Orwell.

Electronic Frontier Foundation reacts

In a highly politicized environment, the secret courts have unified unlikely allies in the name of constitutionality. A sampling of the 22 groups represented by Electronic Frontier Foundation (EFF) include, Calguns Foundation, Green Peace, Human Rights Watch and First Unitarian Church of Los Angeles. EFF is a pioneer in the new metadata world. Headquartered in San Francisco, the mainly millennial work force monitors, researches and files lawsuits supporting “freedom online.”

EFF attorney Andrew Crocker shared his mixed reaction to Judge Collyer's opinion. “The opinion doesn't cover much new ground in terms of the law, but it is noteworthy that this is the first challenge by a telecom provider.” Crocker said that this particular decision shows the importance of the case EFF and others are building and they hope their case will reach a different outcome.

“At the heart of First Unitarian Church of Los Angeles v. NSA is the bulk telephone records collection program that was confirmed by the publication of an order from the Foreign Intelligence Surveillance Court (FISC) in June of 2013. The Director of National Intelligence (DNI) further confirmed that this formerly secret document was authentic, and part of a broader program to collect all major telecommunications customers’ call history,” according to EFF. “The order demands wholesale collection of every call made, the location of the phone, the time of the call, the duration of the call, and other “identifying information” for every phone and call for all customers of Verizon for a period of three months. Government officials further confirmed that this was just one of series of orders issued on a rolling basis since at least 2006. First Unitarian v. NSA argues that this spying violates the First Amendment, which protects the freedom to associate and express political views as a group.”

The law the president seems to be referring to is the Posse Comitatus Act, the longstanding federal statute that restricts the government’s ability to use the U.S. military as a police force. The Posse Comitatus Act is the United States federal law (18 U.S.C. § 1385, original at 20 Stat. 152) that was passed on June 18, 1878, after the end of Reconstruction and was updated in 1981. Its intent (in concert with the Insurrection Act of 1807) was to limit the powers of Federal government in using federal military personnel to enforce the state laws.

The Act, as modified in 1981, refers to the Armed Forces of the United States. It does not apply to the National Guard under state authority from acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor. The United States Coast Guard, which operates under the Department of Homeland Security, is also not covered by the Posse Comitatus Act, primarily because the Coast Guard has both a maritime law enforcement mission and a federal regulatory agency mission.

Senator Feinstein and CIA Brennan not so secret brouhaha:

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