Government engages in mass surveillance against its citizens and the only one getting in any trouble whatsoever is the whistleblower who made it publicly known. Checks and balances at work.
How anyone can say with a straight face that Snowden should've stayed and challenged the system via the legal channels when even after the whole thing came to light the "system" shows no sign of remorse much less willingness to change?
Remember folks, the police can still search your house in violation of the 4th amendment. The only thing the legal system (EDIT: er, the criminal justice system)
currently does is let your defense attorney keep them from using that evidence against you. Assuming you have an attorney who is being paid enough to go to suppression hearings.
If you don't have charges filed against you, then you don't have an opportunity to challenge the validity* of the FISA court warrant and jurisprudence around how warrants are issued makes it into the public record to be debated by law students, legislators, much less an appeals court or SCOTUS.
(*Most warrant requests in general get issued, but that is not because judges are rubber stamps, rather because prosecutors try to avoid wasting a judge's time. But I'm not sure we have the info to say that about the FISA court. Judges are human and an institution without the perspective imposed by public discourse will only become more and more susceptible to its biases)
I wonder, if an organization had access to the set of all emails sent through a link that crossed the U.S. border, how much information that organization could collect about the children of all federal judges. I also wonder how hard it is to credibly demonstrate that you can persuade the FBI and local law enforcement not to investigate a missing person case. I also wonder if an organization has multiple members are willing to prolong the existence of a disease such as polio in order to fulfill their duty--would they also be willing to threaten to kidnap only a single innocent person in order to protect an asset they believe is critically necessary to keep 300 million people safe?
If hypothetically there was such an organization, each member would be faced with something of a prisoners dilemma: Do I defect and go to the media, or do I stay silent? Given that going to the media means at best that you doubt if you really did the right thing now that you are in Russia and can no longer see your home, friends and family and at worst that you end up in solitary confinement for the rest of your life, I am curious how large such an organization would have to be before the chance of one member defecting rose above 5% a year. I also wonder how many people would need access to credible proof of such a pattern of action.
2) Invoke state secrets or national security when questioned on 1
3) Claim in court that no one has standing
Bonus card, use only once:
4) When a case reaches the supreme court where people notice how you invoked state secrets purely to stymie jurisdictional challenge, lie to the judges [1]
(As you see in this decision, which relies on the tainted supreme court decision, you only need the magic card once anyway to establish precedence)
After you've used the magic card in step 4, the question naturally occurs how to make use of the information collected. Try parallel construction [2] should whoever you were targeting set foot in a court of justice. The point is to ensure people don't make it there; a hellfire will ensure in due course, US citizen or not, that a lot of paperwork is saved.
The existence of parallel construction is huge problem with the idea that the only result of gathering evidence illegally is that that evidence is excluded from legal use.
The police/NSA/whomever can still use that information to inform their investigations to discover other legal evidence that they could otherwise only have found by chance. Not to mention the possibility of just leaking information like this later to discredit or punish a political enemy.
I thought the "fruit of the poisonous tree" doctrine meant that any evidence that is found by examining evidence collected illegally still cannot be presented. The problem with parallel construction is that the police/NSA lie about the origin of their suspicion and avoid the "poisonous tree". (I should mention IANAL so please correct me if my understanding is wrong)
Ruling that wikipedia's traffic is insignificant when it is one of the largest and most trafficed websites ever is so absurd that it's hard to interpret the ruling here as anything other than motivated.
The headline in question is pure clickbait as far as its relevance in the document is concerned. The argument in question was that Wikipedia was so large, and NSA so pervasive, that they had to be snooped on at some point. To which the judge pointed out three things:
1. Sure 1 trillion and .00000001% chance of chance leads to a ridiculously certain chance of interpretation. But if you add three 0's to the latter number, you get a mere 10% chance. Without any explanation of those numbers, this reads like they chose the smallest number that gave a ridiculously high number--in other words, the argument is an attempt at pure statistical bullshittery. (I do like the judges retort in particular: "The "speculative" reasoning foreclosed by Clapper cannot be avoided by dressing "a chain of possibilities" in the clothing of mathematical certainty when the calculation lacks a statistical basis."
2. This is only a footnote, but this also assumes that all communications are equally likely to be intercepted, which a priori reasoning would suggest is not the case.
3. It's actually irrelevant if their numbers are correct, because the numbers and thread of argument relies very heavily on a mere supposition that the NSA is using all of their tools in exactly the ways that they suppose, and this can't be used to show that the injury is "real and immediate" instead of "conjectural or hypothetical."
The most troubling part of the ruling to me is something that no one appears to have talked about in any comment section yet: the judge asserts that in these sorts of standing cases, a false negative (rejecting an actual injury as untrialable) is less damaging than a false positive (accepting as trialable something that didn't happen), and that judges should be inclined to err on the side of false negatives rather than false positives.
It takes sense in context. The court accepted that the NSA has some upstream capability, but says there is no proof that it happens everywhere. Wikileaks says it is so large that it almost definitely gets caught up. The judge didn't accept that argument.
The sum up the holding of the judge, Wikipedia has no evidence to show that the NSA is actually spying on their data transfers beyond mere speculation.
Can we get the headline changed? It is not at all accurate - the size of Wikipedia was a largely insignificant point in the judge's reason, as the article clearly states.
Maybe we should stop with the conspiracy theories about corrupt judges for a second and actually consider the legal situation. The judge's job is to rule based on the law, not to use his own judgment or fight for his idea of social justice.
For good reasons, you could only pursue a lawsuit against someone if you have real evidence of wrongdoing - not intuition or "common sense" or anything else. How would you feel if the RIAA could launch lawsuits against any teenager with a fast internet connection, based on a statistical argument and 'common sense' that most teens steal music?
You are right of course that having one's complaint not based on statistical likelihood but on actual evidence of a tort committed is an important principle. I was hoping someone with more knowledge of that area of law would jump in to start the substantive discussion of the issue as presented to the court.
My line of questioning above is based not on any actual evidence that anyone is actually being intimidated in that manner, but on speculation. It is still troubling if someone with more insight into game theory or organization theory cannot jump in with a reason why this sort of perversion of Justice wouldn't be possible. But that doesn't actually constitute any evidence whatsoever that it happened.
"For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach."
Not so small actually. The mass of a grain of sand (which I was able to look up on Wikipedia, of course) is about 10^-9 kg, so a trillion grains of sand is about a ton of sand.
I am reminded of John McCarthy's famous quote: he who refuses to do arithmetic is doomed to talk nonsense.
Where do you get 1 cubic meter? Anyone talking about grains in such a small area without referencing volumetric differences between grains, is making up measurements. There are multiple order differences between sand types.
I sort-of agree with the judge, that "1 trillion" alone doesn't mean much. They should have put it in context: Wikipedia accounts of X% of overall Internet traffic, or that Wikipedia is ranked in the top-10 of all sites on the Internet, or that Wikipedia serves X% of all users on the Internet.
I'm not entirely sure that info (% of traffic) is possible for wikipedia to obtain accurately.
There are however 3.3 billion people in the world estimated to have internet. Assuming that 90% of internet traffic is autonomous, each person who has internet visits wikipedia on average roughly 30 times a year. In reality, it's estimated that closer to 60% of the traffic is autonomous; which means an average of 121 visits per year per person with internet.
Now we can't claim with 100% certainty the exact numbers (although I'm sure some statisticians could find a reasonable range with 99.95 certainty), but it's still pretty difficult to say that 1 trillion doesn't mean much.
Another Republican-appointed federal judge. Remember at voting time, there are three branches of government, and then ask yourself this: Do I want this person to be responsible for appointing or approving judges to the federal bench?
My favorite part: "plaintiffs conclude that there is a greater than 9.9999999999% chance that the NSA has intercepted at least on of their over 1 trillion communications on the basis of an arbitrary assumption, namely that there is a 0.00000001% chance that the NSA will intercept any particular internet communication. Plaintiffs provide no basis for the 0.00000001% figure, nor do they explain why the figure is presented as a conservative assumption."
I suppose they didn't technically, but the NSA (in 2011) stated they ~9% of 250 mil internet communications were from upstream (note, 22.5 million). For the .00000001% number to be true given any number less than 225 quadrillion connections through US nodes(yes, 225000 times wikipedia's traffic at #7 alexa ranking) to be made annually. Traffic such as netflix and torrenting (apart from initial metadata) would be disregarded as meaningless data in any meaningful system and as such would be redundant in this count. Even including that data, we can see that HTTP is at least ~10% of downstream data (from sandvine broadband) and can reasonably say 10000 trillion (10 quadrillion) total http connections(basing this on wikipedia's 1 trillion connections and adding some wiggle room, but I'm fairly certain it can be proven that it's [much] less than this) then we only reach 100 quadrillion total net traffic; less than half of what we would need for this number to be untrue.
Of course they still can't prove that the NSA isn't just ignoring wikipedia traffic somehow, so the case would still get thrown out.
I realise that judges use the evidence put before them but aren't they supposed to rely on common knowledge as well. If a plaintiff said "we laced their food with arsenic" would the judge say, "well the defence haven't shown me that arsenic is a powerful poison so you can go free"? Surely the judge is expected to research common knowledge like whether a website is popular or not?
If I go to a search engine and search "website popularity" I get alexa.com as first hit, that leads me to http://www.alexa.com/siteinfo/wikipedia.org which says #7 in the world.
If the judge isn't allowed to do the basic research then presumably they're supposed to just ask in court "on a point of fact: is a trillion hits a significant number?".
Another analogy, would the government have to prove that a bird was really on the endangered species list when bringing a case against an egg-snatcher rather than rely on the judge being able to research common knowledge.
Whilst I understand the reasons - USA government don't want NSA exposed to court cases - the reasoning is moronic and makes [or possibly demonstrates that] the USA courts look completely corrupt.
Is there a process to follow this up in which this judge can be struck off?
Well, this was an opinion in U.S. District court, which is the first level. You can appeal dismissals to Appeals court. From there, it's on to the Supreme Court who can choose if they want to hear the case.
In Thank You for Smoking, the protagonist jokes that the thing that makes America great is "our endless appeals system" occasionally, I feel convinced that this really is true.
Nope. In the U.S., the constitution stipulates that federal judges, "both of the supreme and inferior courts, shall hold their offices during good behaviour"
So, for example, if all of a judges rulings were turned over on appeal based on ignorance of common facts nothing would happen unless Congress chose to impeach them? Or are judicial rulings based on ignorance of common knowledge not considered problematic in law.
"Problematic" is too vague a term here. Do you mean "impeachable offense", or "something a group of people think is a problem"?
If literally all or even > 50% of a district court judge's rulings were reversed on appeal, would they face sanction? I've never heard of this happening so I don't really know. But I have never heard of there being a process for it. I am curious what process folks think there should be?
How anyone can say with a straight face that Snowden should've stayed and challenged the system via the legal channels when even after the whole thing came to light the "system" shows no sign of remorse much less willingness to change?