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Appeals court judge shoots down DOJ's defense of NSA phone program

Grant Gross | May 8, 2015
A U.S. appeals court judge shredded the government's defense of an extensive National Security Agency program targeting the phone records of the nation's residents.

On the DOJ asserting that the Patriot Act's language, allowing the NSA to collect information "relevant" to an antiterrorism investigation, intended to define "relevant" broadly:

"The government takes the position that the metadata collected -- a vast amount of which does not contain directly 'relevant' information, as the government concedes  -- are nevertheless 'relevant' because they may allow the NSA, at some unknown time in the future, [to use] its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of 'relevance' is unprecedented and unwarranted."

On the DOJ arguing the program gives the government similar investigatory powers to fight terrorism as a grand jury has to fight other crime:

"The metadata concerning every telephone call made or received in the United States ... are demanded, for an indefinite period extending into the future. The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects  -- they extend to every record that exists, and indeed to records that do not yet exist.

"Put another way, the government effectively argues that there is only one enormous 'antiterrorism' investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort."

On whether the program violates the Constitution's Fourth Amendment:

"Appellants' argument invokes one of the most difficult issues in Fourth Amendment jurisprudence: the extent to which modern technology alters our traditional expectations of privacy. On the one hand, the very notion of an individual's expectation of privacy ... may seem quaint in a world in which technology makes it possible for individuals and businesses (to say nothing of the government) to observe acts of individuals once regarded as protected from public view. On the other hand, rules that permit the government to obtain records and other information that consumers have shared with businesses without a warrant seem much more threatening as the extent of such information grows."

 

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