NSA meta-data collection unconstitutional, court rules

U.S. District Court Judge Richard Leon has found that an NSA program collecting telephone ‘meta-data’ is unconstitutional.

Although the ruling is stayed pending inevitable appeal, the impact on the debate on the US dirty war of drone strikes, imprisonment without trial and mass surveillance is likely to be profound.

For years, we have been assured that the NSA surveillance programs are ‘unquestionably legal’. Which of course was technically true in the sense that nobody was able to challenge the programs in court because the NSA denied they existed.

Judge Leon’s ruling strips away the cloak of legality from the NSA operations, for a time at least. It will be many months before an appeals court hears the case, and many more months before there is a ruling. The Senate will have to hold hearings on replacement directors of the NSA and national intelligence first.

eavesdropping spying privacy

Eavesdropping via Shutterstock

It is likely that the 2016 presidential primaries will be in full swing before an appeals court ruling is handed down. The NSA programs are unpopular with the base of both parties. Even Republicans hate police state powers when there is a Democrat in the White House. It is hard to see any candidate winning the nomination after leaping to the defense of the wiretap programs. However much they might want to exercise those powers if elected, they will have to oppose them first.

Morale at the NSA has collapsed. Job applications are down by a third, and retention has suffered too. Having worked for the NSA is no longer quite the capstone to a resume that it was before the Snowden leaks. As Jim Bidzos, the founder of RSA Laboratories and now CEO of VeriSign Inc. once said to me, “There is no such thing as an ex-NSA employee.”

The Snowden leaks are a triple whammy for the NSA. First, the targets of the programs are deploying countermeasures. Second, other governments are rapidly expanding programs against US targets to match perceived NSA capabilities. Third, the agency needs to figure out how they were  rolled by a 29 year old system administrator using basic techniques that a competent agency would have detected.

Until the Snowden leaks, my chief cyber-warfare fear was that the US generals, the Russian generals and the Chinese generals would find a way to start a cyber arms race. Not content with spending 600 billion dollars a year to fight on sea, land and air, the military would bleed another 200 billion a year from the country to fight in cyberspace as well. That is going to be a much harder sell for the militarists now, post Snowden’s leaks.

NSA Headquarters at Fort Meade, Maryland

NSA Headquarters at Fort Meade, Maryland

The dirty little secret of cyber security is that it costs much less to defend than attack, and that robust strong defenses are entirely practical. The reason that current computer systems are vulnerable to attack is that they are badly engineered and strong cryptography is too hard to use.

Most of my customers spend tens of millions of dollars on ‘quick fix’ security products like firewalls and anti-virus systems, but they still run Windows XP despite knowing that it is insecure and long past its original planned life. In the federal government the situation is even worse, many government systems still run Windows NT 4.0.

Running up-to-date applications on an up-to-date operating system provides protection against the vast majority of malware and penetration attacks, but does not provide protection against network interception. The only way to protect against such attacks is to use strong cryptography.

One of the consequences of the Snowden leaks is a renewed interest in putting strong cryptography in the hands of ordinary Internet users, and raising the bar for security in Internet and Application Service Providers. The IETF and World Wide Web Consortium, two bodies that set standards for the Internet and the Web, are working on proposals to achieve this goal. This is the work I am currently spending most of my time on.

But one cloud that has hovered over these efforts has been the possibility that the government would attempt to disrupt these attempts with the same bullying legal tactics that were used to discourage distribution of PGP in the early 1990s. When I first met PGP creator Phil Zimmerman, he was under a federal indictment for an alleged breach of the arms export control act by distributing PGP outside the US.

The NSA and FBI lost that fight, at least as far as the public record is concerned. The US government has even supported projects to bring strong cryptography to the masses. But in the months since Snowden, I have been hearing once again that offering products with strong cryptography that do not provide a backdoor for ‘Lawful Intercept’ is illegal. One very well known open source guru even accused me of ‘treason’.

For the next few years at least, Judge Leon’s ruling is going to give a lot of cover for those of us who believe that providing people with strong cryptography is legal and necessary, and that it is the activities of the NSA and the government that are unconstitutional and therefore illegal.

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  • goulo

    Do I understand you correctly that a well-known open source guru says that there SHOULD be software backdoors for ‘lawful intercept’, and that it’s treason to want cryptography to actually be truly secure?

    Can you name the person or give a link? I’m not doubting you, but I’m just surprised, since most open source people I’ve seen talk about this seem pretty unanimously against such backdoors.

  • Bill_Perdue

    Wrong.

  • Nathanael

    And execution for the traitors like Alexander and Clapper and Hayden who committed treason by violating the Constitution.

    You know these men aren’t working for the US — nobody violates as many laws and lies to Congress as many times as they did and lies to the courts as many times as they did if they’re *loyal*. The only question is who the traitors like Alexander, Clapper, and Hayden are working for. Possibly themselves, possibly China or Russia, more likely a major corporation.

  • Nathanael

    Judges should stop staying these rulings pending appeal. The government has proven bad faith and should be enjoined immediately. The government criminals know perfectly well that the spying is completely unconstitutional and illegal, and are relying on *delay* in order to keep it going.

    Presumably the NSA’s plan is to delay long enough that they can find blackmail information on the Supreme Court judges sufficent to get the Supreme Court to rule it “legal”. After all, we already know that the NSA is tapping the phone lines of the Supreme Court judges.

  • Nathanael

    Frankly, good for him. Credit where credit is due. The NSA’s unconstitutional spying-on-everybody is insanely dangerous. On top of that, the NSA has no security on its own stuff, as Snowden proved. This database could be used by *anyone* — the Russian mob, the Chinese government, Blackwater/Xe/Academi, *anyone*.

    The NSA is doing the sort of deranged stuff which can unify people who normally don’t agree on anything, even moderately crazy people, to try to STOP THE MADNESS.

  • silas1898

    He also helped bring us the Paula Jones lawsuit.

  • bkmn

    I would again like to remind all of who the primary plaintiff is:

    Larry Klayman of Freedom Works.

    If that name sounds familiar it is because he is also an oversized homophobe who has fought tooth and nail against equal rights.

    So before everyone is cheering about this one, remember who brought the case.

  • http://www.americablog.com/ Naja pallida

    It was also mentioned that it could take the government something like six months to get around to appealing.

  • perljammer

    I agree with most of what you said, except, “The FISA court is not relevant as this is not a foreign interception.”

    I direct your attention to RULES OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURT, Rule 6(b): “If the emergency deployment of electronic surveillance has been previously authorized by the Attorney General pursuant to section 105(e), and a subsequent order approving the surveillance is not obtained, the judge shall cause to be served on any United States person named in the application, and on such other United States persons subject to electronic surveillance as the judge may determine in his discretion it is in the interest of justice to serve, notice of —
    (1) the fact of the application;
    (2) the period of the surveillance; and
    (3) the fact that, during the period, information was or was not obtained.”

    Translation: If the Attorney General starts to spy on US citizens but afterwards doesn’t get the FISA court’s retroactive permission to do so, then the FISA court will tell those US citizens that they’re being spied upon.

    tl;dr: Contrary to popular perception, the FISA court does indeed oversee domestic surveillance.

  • perljammer

    My admittedly imperfect understanding is that Judge Leon did not rule the program as a whole unconstitutional; he ruled that the NSA has to stop collecting metadata on the specific plaintiffs in the case (but then stayed that ruling pending appeal), and he said that the collection program as a whole was “likely unconstitutional”. This is not the same as ruling the program unconstitutional. Hopefully, though, it will lead to that.

    Please, correct me if I’ve misinterpreted what is being reported.

  • perljammer

    I’d imagine he’s mostly referring to the 9th Circuit Court of Appeals.

  • http://adgitadiaries.com/ karmanot

    Myrddin, the ‘California hippie judge’ comment is not appreciated. FYI. We are burdened with one of the most callous right wing fanatic judges imaginable—Judge Janis Rogers Brown.

  • http://adgitadiaries.com/ karmanot

    And the media is completely complicit. It reminds me of that scene in Star Wars when it was remarked that democracy did not end with a whimper, but with thunderous applause. It was absolutely breathtaking to watch General Alexander lie through his teeth on the 60 Minutes propaganda hit. 60 minutes, once the highest standard in investigative journalism is little more than roadkill these days.

  • Bill_Perdue

    Snowden “I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge…”

    Snowden is correct. And, like Chelsea Manning and a host of other whistle blowers he’s a hero. The American people owe him a debt of gratitude for challenging Obama’s police state.

    “In revealing the colossal scale of the U.S. government’s eavesdropping on Americans and other people around the world, he has performed a great public service that more than outweighs any breach of trust he may have committed.” http://www.newyorker.com/online/blogs/johncassidy/2013/06/why-edward-snowden-is-a-hero.html

    Amnesty for Snowden and a full pardon for Manning.

  • http://adgitadiaries.com/ karmanot

    Well done Myrddin!

  • http://www.americablog.com/ Naja pallida

    So we have a secret court, where lies are told to liars, who then rule, secretly, that the lies are okay and legal… but the People are not allowed to know about it? Is there a word beyond ludicrous? If not, we need to invent one, so we can have something to describe this entire situation. The entire intelligence apparatus has been corrupted to the core. There’s nothing of redeemable value left.

  • MyrddinWilt

    The FISA court is not relevant as this is not a foreign interception. That court has a very limited scope and the existence of the FISA court does not preclude cases being brought in regular federal courts.

    One of the main claims made by Snowden is that the FISA courts have been routinely lied to. So proceedings in the FISA court probably don’t count for very much in any case.

  • MyrddinWilt

    He is a George W. Bush appointee. Which I forgot to mention in the article. This isn’t some California hippie judge making the decision.

    I think there has been a huge change in perception and the NSA has lost a lot of support. Even DiFi has made critical comments.

    At the start of the story I got slapped down in another forum for calling for Alexander and Clapper to be fired for being responsible for the security breach. One of the reasons I was not blogging about Snowden here is that I am not going to make that kind of call anonymously. A few weeks later Alexander himself had asked the president to be allowed to resign over the security breach (but was refused). People who slapped me down earlier started repeating my argument.

    There is currently a major struggle going on over who is going to replace Alexander and it is not clear what the struggle is really about yet. The administration immediately squashed the idea of handing the NSA over to civilian command but that is definitely what many of the NSA employees think should happen.

  • MyrddinWilt

    Nice piece, I had not heard of the jacket part. But the info on how he got the information suggests that he didn’t need to be quite so much of a genius as they are saying. The new explanation of how he got the data isn’t really any better than the last. And next week there will be a new one.

    The insider threat is always the hardest to deal with. But the NSA is meant to be a security agency. Its behavior was beyond incompetent. They should never have made half the slides in the first place.

    They have known that too many insiders have too much access to vast quantities of data for decades. They have no shortage of technology that could have controlled that access. They didn’t deploy any of it.

    Instead they sat round showing Powerpoint slides to each other to polish each other’s egos.

  • MyrddinWilt

    Absolutely, but the big difference there is that the courts allowed the administration to run out the clock on the criminal torture charges and Congress passed a law taking Guantanamo out of the jurisdiction of the civil courts.

    So while it would be nice to think that Judge Leon has changed the game on those issues, I don’t think we will see any effect there for quite a while.

  • http://www.rebeccamorn.com/mind BeccaM

    Unfortunately, although the push-back from people like Judge Leon is welcome, we’re well into an era of “defined reality” and “no consequences” in our system of governance — begun under Shrub and continued under Obama.

    America doesn’t torture, illegally transfer prisoners to places and regimes where they are tortured, or violate the Geneva Conventions — except we did.

    Our Constitution, its Amendments, and our guarantees of liberty and civil rights are absolute — except they’re not. The treatment of Jose Padilla and Chelsey Manning should be ample evidence of that.

    Our government doesn’t spy on everyone — except now we know it does.

    All because the magic words “terrorism” and “national security” trump every single guarantee of liberty, every limit on power and authority that was supposed to have been built into our government through its founding documents, body of laws, and centuries of precedent and jurisprudence.

  • http://www.americablog.com/ Naja pallida

    Does it matter? Until the FISA court itself is declared unconstitutional and abolished, the NSA, and the DoD in general, is just going to continue doing whatever it wants. And throw out “national security” any time anyone dares question them.

  • GaiusPublius

    I’m interested in the Judge Leon connection. I’m preparing pieces in which two whistleblowers have claimed that the NSA has been listening in on judicial candidates and sitting judges, incl. SCOTUS for more than a decade.

    Is Judge Leon that clean? If so, how did he get the case?

    GP

  • Whitewitch

    Excellent article Myrddin…the links were great reads as well. Thanks!

    P.S. ROFLMA at the Window NT 4.0 – ID Ten T error and fail by government.

  • Reasor

    Government employees who say shit like that waive their right to anonymity when quoted.

  • nicho

    Imprisoning people without charges, executing them without a trial, and torture all used to be unconstitutional too. My guess is that, upon receiving this ruling, they will fart in our general direction and keep on with what they’re doing.

  • Whitewitch

    Oh those are scary, fighting words…”I have some reforms for the First Amendment”….hope that comes back to bite them.

  • backtonature

    As far as your 3rd whammy, it appears that the NSA already knows the answer–it gave Snowden the access, at least according to an NSA coworker. http://www.forbes.com/sites/andygreenberg/2013/12/16/an-nsa-coworker-remembers-the-real-edward-snowden-a-genius-among-geniuses/?partner=yahootix

  • Monoceros Forth

    Incidentally, there was a Digbysblog item yesterday ( http://digbysblog.blogspot.com/2013/12/reforming-first-amendment.html ) about the NSA’s feelings about what’s been happening. Their faces are long indeed and they feel like they’re being persecuted by enemies telling lies about them:

    One official accused some media outlets of “intentionally misleading the American people,” which is a pretty serious accusation. This official also hoped that the Obama administration would crack down on these reporters, saying, “I have some reforms for the First Amendment.”

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