So which is it: Warrantless search has no recourse unless the law says so, or is the judge buying in to the idea that section 215 data collection isn't "search?"
Neither is true. The mistake you're making is treating the ACLU's challenge as a single abstract thing. Instead, its a set of distinct, self-contained, claims argued in the alternate. And the court is obliged to address the distinct arguments on their own merits. Its a more systematic process than "is this good or bad?"
One claim is that Section 215 creates an avenue for targets to challenge days collection. The court rejects the idea that Congress intended to create an avenue in the statute for targets to challenge data collection, when Congress didn't intend targets to even know. That's the statutory argument. The court rejected the Constitional argument on a separate basis. They applied Smith v. Maryland, which approved warrantless collection of phone metadata in individual cases, and concluded it didn't become unconstitutional just because the NSA did it to a whole bunch of cases. This is a straightforward application of the third party doctrine. The fact that Congress didn't want targets to know had nothing to do with this part. It was rather based on how the boundaries of the 4th amendment have been interpreted.
Don't talk down to me. I pointed out two absurdities in this case: That secrecy is a magic spell that make due process go away and that it isn't a search if it's only machines looking at data. The judge has apparently gone for a third absurdity: Pen registers for all! This now supposedly is no different from from an investigation requesting a pen register on an individual as part of a specific investigation, never mind the dubiousness of warrant-less pen register requests in the first place.
I'm not talking down to you, I'm trying to get you to understand the opinion. The whole point of the legal analytical process is to cabin what would otherwise be total judicial discretion. It limits the analytical process by which judges can reach a conclusion. You can't understand opinions without keeping track of the context which limits the scope of every statement. Its like lexical scoping of variables in a program. When you take one paragraph addressing statutory standing and pretend that it says "secrecy is magic that makes due process go away" its like trying to understand a statement in a program while ignoring the lexical environment at that program point.
Judges aren't empowered to simply say "NSA is bad, ACLU wins!" In this case you wouldn't even like that, because the judge is clearly very sympathetic to the anti-terrorism backdrop of the whole case. You might think that warrantless pen registers are an "absurdity" but the judge isn't entitled to draw that conclusion. He is required to accept the premise of Smith v. Maryland, that collecting pen register data doesn't require a warrant because its third party information in the hands of the telephone company.
Precedent changes (with respect to Smith vs. Maryland). This judge's bias is evident from the first sentence of his ruling when he invokes the memory of 9/11.
The problem is that to the lay-person, this reads like, "well, you weren't really supposed to know about it, so you can't do anything about it." Whether or not the ruling is legally sound is basically irrelevant now. It is a PR problem and no amount of "trust me, I am a lawyer" is going to convince people who know how to read that this ruling does not sound like total garbage.
> The problem is that to the lay-person, this reads like, "well, you weren't really supposed to know about it, so you can't do anything about it."
That's exactly what it says.
> Whether or not the ruling is legally sound is basically irrelevant now.
Its relevant in understanding where the problem lies on the particular issue of the statutory claim being made by the ACLU (i.e., not with the court here, but with the Congress that wrote the law specifically to exclude this type of claim, and even more broadly with the entire principle of sovereign immunity and the way it stands in direct opposition to the idea of limited government, since a government that is only as accountable as it chooses to allow itself to be is not in any meaningful sense limited.)
> It is a PR problem and no amount of "trust me, I am a lawyer" is going to convince people who know how to read that this ruling does not sound like total garbage.
The ruling sounds like total garbage because it is legally sound and the law underlying it is garbage.
