February 29, 2020

Judge Urges U.S. to Consider Releasing N.S.A. Data on Calls

Judge F. Dennis Saylor IV issued the opinion in a response to a motion filed by the American Civil Liberties Union, saying such a move would add to “an informed debate” about privacy and might even improve the reputation of the Foreign Intelligence Surveillance Court on which he sits.

The ruling was the latest development to show the seismic impact of the disclosures by Edward J. Snowden, the former N.S.A. contractor, on the secrecy that has surrounded both the agency and the court. It came a day after the director of national intelligence, James R. Clapper Jr., said in a speech that Mr. Snowden’s leak of secret documents had set off a “needed” debate.

Judge Saylor of Boston, one of the 11 federal judges who take turns sitting on the court operated under the Foreign Intelligence Surveillance Act, said in his ruling that the publication in June of a court order leaked by Mr. Snowden regarding the phone logs had prompted the government to release a series of related documents and “engendered considerable public interest and debate.”

Among the documents voluntarily made public by the Obama administration since then are two FISA court rulings from 2009 and 2011 that were highly critical of the N.S.A., which the judges said had not only violated the agency’s own rules and the law, but had repeatedly misled them.

Those disclosures ran counter to a longstanding assertion by the court’s critics that it acts as a rubber stamp for the N.S.A. and the F.B.I., since statistics show that it has rarely turned down a request for a government eavesdropping warrant.

Judge Saylor seemed to applaud the fuller picture of the court’s actions from the disclosures to date, saying of the possibility of the release of more declassified rulings that “publication would also assure citizens of the integrity of this court’s proceedings.”

The court was responding to the A.C.L.U.’s request for public release of rulings related to the N.S.A.’s collection of the so-called metadata of virtually all phone calls in the United States — phone numbers, time and duration of calls, but not their content. The collection takes place under a provision of the Patriot Act that allows the government to gather “business records” if they are relevant to a terrorism or foreign intelligence investigation.

Though the intelligence court has continued to approve orders to the telephone companies to turn over the call logs, members of Congress — including Representative Jim Sensenbrenner of Wisconsin, a Republican and an author of the Patriot Act, and Senator Patrick J. Leahy of Vermont, the Democratic chairman of the Judiciary Committee — have said the N.S.A.’s collection goes too far.

Alex Abdo, a staff lawyer with the A.C.L.U.’s national security project, said the ruling showed that the court “has recognized the importance of transparency to the ongoing public debate about the N.S.A.’s spying.” Mr. Abdo added, “For too long, the N.S.A.’s sweeping surveillance of Americans has been shrouded in unjustified secrecy.”

Before Mr. Snowden began his release of documents in June, intelligence officials insisted that any public discussion of N.S.A. programs or the secret court rulings governing them would pose a danger to national security. But the strong public and Congressional response to many of the disclosures has forced the spy agency to shift its stance, and President Obama has directed it to make public as much as possible about its operations and rules.

In response, Mr. Clapper’s office has created a new Web page to make public documents, statements by officials and other explanatory material.

On Thursday, in a talk to intelligence contractors, Mr. Clapper said he thought Mr. Snowden’s leaks had started a valuable discussion. “It’s clear that some of the conversations this has generated, some of the debate, actually needed to happen,” he said, according to The Los Angeles Times. “If there’s a good side to this, maybe that’s it.”

But he denounced Mr. Snowden’s leaks, saying they had damaged national security. “Unfortunately, there is more to come,” he said, referring to the fact that news reports have covered only a small fraction of the tens of thousands of documents Mr. Snowden took.

Article source: http://www.nytimes.com/2013/09/14/us/judge-urges-us-to-consider-releasing-nsa-data-on-calls.html?partner=rss&emc=rss

Supreme Court Hears Arguments on Telemarketer Abuse Cases

The justices had spent most of the previous hour trying to puzzle out the meaning of a part of 1991 federal law that addresses telemarketing abuses, and they had reached consensus on only one point.

“Both sides agree it’s odd, and all nine justices agree it’s odd,” Justice Elena Kagan said. “I mean, I think we can say that this statute is odd. And the question is, where do we go from there?”

The law, the Telephone Consumer Protection Act, prohibits many uses of automatic dialing equipment, recorded messages, unsolicited faxes and similar practices, and it allows those who receive such communications to sue for at least $500 per violation. The amount may be tripled if the caller is found to have knowingly broken the law.

The plaintiff in Monday’s case, Marcus D. Mims, sued after receiving automated debt-collection calls on his cellphone.

The question in his case, Mims v. Arrow Financial Services, No. 10-1195, was the proper place for recipients of unlawful communications to file their suits. The law says that affected people “may, if otherwise permitted by the laws or rules of a state” sue “in an appropriate court of that state.”

But may they also sue in federal court? The law is silent on that point, though the general rule is that federal courts have jurisdiction to hear claims arising from federal laws.

Justice Kagan said the general rule should apply unless Congress made it quite clear that the general rule should not. “If it’s odd and we can’t figure it out,” she said, “the default position seems to be federal courts have jurisdiction over federal questions.”

Justice Antonin Scalia said there were institutional reasons for that presumption.

“We are jealous of our jurisdiction,” he said of federal judges, adding: “That’s what gets our hackles up, when you are telling us we have been ousted of jurisdiction.”

But Justice Stephen G. Breyer said he could think of a good reason to limit suits under the law to state courts. “Congress seemed to want to have ordinary people to be able to go into small claims court in a state and bring an action for $500 because they were pestered by these salesmen on the phone in violation of the act,” he said.

If defendants were allowed to move such suits to federal court, Justice Breyer continued, a simple case could easily turn into a complicated and expensive one.

Scott L. Nelson, a lawyer for Mr. Mims, said that situation was unlikely.

Justice Anthony M. Kennedy was not persuaded. “That’s exactly what’s going to happen,” he said.

Justice Sonia Sotomayor, on the other hand, said it would have been illogical for Congress to allow consumers to sue only in state court. Most states had laws against the practices addressed by the federal law by the time it was enacted, and the federal law applies only if it is permitted by state law.

“What is the logic of your position?” Justice Sotomayor asked Gregory G. Garre, who represented the defendant. “Why even bother passing a federal law if it was going to give states the option to protect against this kind of conduct alone?”

Mr. Garre said the law also contemplated possible lawsuits from state attorneys general. Those lawsuits from state officials, the law says, in further testament to its oddness, may only be brought in federal court.

Article source: http://feeds.nytimes.com/click.phdo?i=f2648d432f6309f0bb75b72d50698e31