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Old December 27, 2013, 01:31 PM   #1
Aguila Blanca
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Circuit Split?

http://www.politico.com/story/2013/1...ng-101569.html

A New York judge has ruled that the NSA's program of telephony surveillance is not unlawful. This ruling conflicts with a previous ruling from another district that held the program IS unlawful.

What bothers me is multi-fold. Narrowly, this judge seems to be saying that (in effect) it's okay for the cops to search your apartment without a warrant and take copies of anything they want, as long as they don't look at it without getting a warrant. The 4th Amendment doesn't say anything about "looking at" things -- it says the gummint may not search or seize without a warrant.

More broadly, both this judge and the judge who found the program unlawful focused on and specifically addressed the collection of metadata. I suspect the government has gone to great lengths to convince both judges that "all" they are collecting are the metadata. However, my understanding (based entirely on having read articles about Snowdon's revelations) is that the NSA is NOT collecting just the metadata but, in fact, they are collecting the entirety of every call ... and they can then listen to any conversation at any time in the future.

In any event -- is this enough to get to the Supreme Court, or would both cases have to go through appeal and result in a split after the appeal level before we get to the SCOTUS level?
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Old December 27, 2013, 01:41 PM   #2
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Going, Going ... Gone !!!

I like your post and had to get that in, before the Mods, shut it down. ....

Be Safe !!!
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Old December 27, 2013, 02:22 PM   #3
Frank Ettin
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Well we don't have a circuit split yet.

The ruling referenced by the OP was a ruling by a judge in the Federal District Court in New York. The district court is a trial court.

The prior, and conflicting, ruling was also at the district court level by a judge in the Federal District Court in Washington, D. C.

While New York is in the Second Circuit and the District of Columbia is in the D. C. Circuit, since those courts of appeal have not yet ruled on the question, there is as yet no "circuit split."

Quote:
Originally Posted by Aguila Blanca
...is this enough to get to the Supreme Court, or would both cases have to go through appeal and result in a split after the appeal level before we get to the SCOTUS level?
We'll need conflicting rulings from different federal circuit courts of appeal before we can expect to get to SCOTUS.
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Old December 28, 2013, 12:18 AM   #4
Aguila Blanca
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Quote:
Originally Posted by Frank Ettin
We'll need conflicting rulings from different federal circuit courts of appeal before we can expect to get to SCOTUS.
That's what I thought. So to get a circuit split, we need to see both cases appealed, and BOTH to be either upheld or reversed by their respective courts of appeals. If one reverses but the other upholds, there's no split.

If that results in both saying the NSA is not acting lawfully, that's a good thing. If that results in both saying it's legal, that's going to make it difficult to combat the snooping ... unless (I suppose) a third circuit would see fit to enter the fray, and ignore the precedent established by the other two.

What happens if one ruling is appealed and the other is not? If one is appealed, and the ruling is upheld, we than have an appeals court ruling out of one circuit versus a district court ruling out of another circuit. Does that in any way constitute a circuit split?
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Old December 28, 2013, 01:13 AM   #5
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Quote:
What happens if one ruling is appealed and the other is not? If one is appealed, and the ruling is upheld, we than have an appeals court ruling out of one circuit versus a district court ruling out of another circuit. Does that in any way constitute a circuit split?
No, that's not a circuit split. Moreover, a circuit split does not insure the Supreme Court will take a case. That is only a factor and it is less of a factor if only two circuits have differing opinions. The importance of the issue is another factor. While the NSA actions are certainly important legally, the Supreme Court has been slow to enter the fray about these types of issues.

Quote:
Narrowly, this judge seems to be saying that (in effect) it's okay for the cops to search your apartment without a warrant and take copies of anything they want, as long as they don't look at it without getting a warrant.
There's a fundamental difference in gathering information from documents stored in your apartment and collecting the metadata from phone calls. You haven't disclosed or entrusted your information stored in your apartment to someone else. Metadata about your phone calls is routinely generated and kept for a time by phone companies. Arguably, there is a greater expectation of privacy in the documents stored at your apartment because you did not disclose their contents to anyone. Of course, that is a very simplistic comparison and the first district court judge said the collection of the metadata was so pervasive that it breached the right to privacy. Hopefully, we'll find out or perhaps Congress will move to fix the law.
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Old December 28, 2013, 02:05 AM   #6
Aguila Blanca
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Quote:
Originally Posted by KyJim
There's a fundamental difference in gathering information from documents stored in your apartment and collecting the metadata from phone calls. You haven't disclosed or entrusted your information stored in your apartment to someone else. Metadata about your phone calls is routinely generated and kept for a time by phone companies.
The problem is ... and it appears that BOTH judges either missed it or intentionally tip-toed around it ... is that the NSA is NOT collecting just the metadata. They are also collecting the actual phone calls. At least, that's what I got from the early articles detailing Snowdon's revelations. I'm quite certain he said they were able to listen to any conversation at any time they wished ... and that they had on occasion done exactly that, without a warrant, for no other reason other than they felt like it.

If this is correct -- that's a HUGE problem. That is equivalent to breaking into your apartment and making a photocopy or taking a photograph of every document in your personal files, or just making a complete backup of the contents of your computer's hard drive ... "just for future reference, but we won't look at it without a warrant. We promise."
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Old December 28, 2013, 11:27 AM   #7
Glenn E. Meyer
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As you probably know the NRA had joined with the ACLU

http://thehill.com/blogs/hillicon-va...a-gun-database

In discussion, with a NRA buddy, I pointed out that keeping records of phone messages would include 4473 calls. That would be illegal - he thought that was a good point to be used. Not saying I'm the only one with the idea.

But no one has yet pointed out a clear case of catching someone. Always a vague plot. Even with a direct hint about the Boston bombers, the Feds couldn't prevent them.
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Old December 28, 2013, 01:37 PM   #8
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Even a circuit split doesn't guarantee that SCOTUS will grant cert. There is a three way circuit split concerning what gives a person a reasonable expectation in a rental car. The 4th, 5th, 10th, and 11th have ruled one way, the 8th and 9th another, and the 6th another.

This split dates to the early 90's when the 8th and 9th Circuits split with the 4th, 5th, and 10th. Various state appellate courts have also adopted different approaches.

Talk about an issue that has been primed for the granting of cert for awhile now.
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