http://thehill.com/blogs/hillicon-valley/technology/323793-snowden-leaks-help-nsa-critics-in-legal-fights
But the leaks by Edward Snowden have eroded the government's key legal defense and could mean that questions over whether the National Security Agency is breaking the law will be decided in open court.
http://rt.com/op-edge/spy-scandals-us-latin-america-176/
Is the FBI's Domestic Spying Out of Control?
Snowden leaks help NSA critics in government surveillance lawsuits
For years, the government has successfully suppressed lawsuits by civil liberties groups challenging the constitutionality of its surveillance programs.
But the leaks by Edward Snowden have eroded the government's key legal defense and could mean that questions over whether the National Security Agency is breaking the law will be decided in open court.
"No matter what you think of the lawfulness of these programs, I think everyone should think their legitimacy or illegitimacy is better debated in public and decided by a court," Alex Abdo, a lawyer for the American Civil Liberties Union (ACLU), said.
The Justice Department has traditionally argued that groups like the ACLU and the Electronic Frontier Foundation (EFF) cannot prove that they have been affected by the surveillance, and they are therefore not in a position to challenge the programs in court—a legal concept known as "standing."
The courts have consistently sided with the government on the issue and, earlier this year, the Supreme Court threw out an ACLU lawsuit over warrantless wiretapping, concluding the group could not show it had standing to sue.
"Simply put, respondents can only speculate as to how the attorney general and the director of national intelligence will exercise their discretion in determining which communications to target," Justice Samuel Alito wrote for the majority.
But the Snowden leaks have changed all of that. In response to a leaked court order, the NSA acknowledged that it is collecting data on all U.S. phone calls. The data collection includes phone numbers, call times and call durations, but not the contents of the conversations.
"For years, the government has shielded its surveillance practices from judicial review through excessive secrecy," Abdo said. "And now that that secrecy has been lifted to some degree, we now know precisely who is being surveilled in some of the dragnet policies of the NSA, and those people can now challenge those policies."
Thomas Moore, an attorney who is working with EFF on its case against the NSA, agreed that the civil liberties groups are now more likely to clear the standing hurdle.
"The Snowden revelations have shown that these gigantic dragnet programs are sweeping up everybody's data," Moore said. "It's not that difficult for us the plaintiffs to say, 'Everybody's data has been swept up. We are part of everybody, and so our data has been swept up.'"
But he cautioned that the groups are not "out of the woods."
The Justice Department filed a motion last month to dismiss the ACLU's lawsuit in New York, arguing that the group still has not shown it has standing.
The government asserted that although it collects data on all phone calls, it only targets a small number of phone numbers for analysis. Because the groups cannot show whether an NSA analyst actually reviewed their phone records, the groups cannot challenge the program, the government argued.
"Plaintiffs’ allegations of the consequences they will suffer as a result of the challenged intelligence-gathering activities depend on speculation that the Government has reviewed, or might in future review, call detail records of their communications, and that persons who would otherwise contact Plaintiffs by telephone may be 'chilled' from doing so by that conjectural prospect," the government wrote, arguing that "such speculation is insufficient" to establish standing.
But the civil liberties advocates argue the government is distorting the legal standard and that they should be able to challenge the bulk collection program, regardless of whether the NSA actually viewed their records.
"The Fourth Amendment has always been triggered when the government actually searches your information, no matter what it does with the information later on," Abdo said. "Under the government's theory, the NSA could record every phone call and copy every email so as long as it kept in a database for later use."
Although the civil liberties groups have a new claim to standing to challenge the bulk collection of phone records, they may still struggle to sue over other more targeted surveillance programs that allow the NSA to listen in on calls and read emails. Because those programs do not affect everyone in the United States, it is more difficult for the groups to prove they have been affected.
"I think it's a much harder question with the other programs," Abdo admitted, adding that the ACLU is reviewing its legal options for taking on the other programs.
Moore argued that the civil liberties groups have the law on their side, but he expressed concern that the courts may be reluctant to strike down a program that government officials insist is critical to protecting national security.
"Courts behave oddly when national security is involved," Moore said.
Spying scandal sends US influence on Latin America into nosedive
Published time: September 21, 2013 10:34
Democratic leaders from Mexico to Argentina are so resentful of American influence that they are now willing to take action. Spies did the trick.
America for the Americans - this is a cornerstone of United States’ foreign policy. That doctrine, introduced 190 years ago by President James Monroe, means this: foreigners keep out of the US’ backyard. For decades it [US foreign policy] also sat well with the elites in Latin America. They even promoted generals to dictators if the men in uniform loved Washington enough. Well, those days are long gone.
Unlike Europeans, who complicitly give a wink and a nudge to the US in the mass surveillance scandal, Latin America is angry. In a drastic move, Brazilian President Dilma Rousseff, a moderate, decided to call off a State visit to Washington. Leftists in the region are now more aggressive and right-wingers have been pressured to speak out. American experts may insist their focus is on Syria, but the backyard is rising in revolt. The National Security Agency (NSA) scandals have made it impossible for regional leaders to keep quiet without looking weak.
Brazil’s snub has the biggest implications. The decision was taken after Ms Rousseff discovered her personal communications were being spied on. Every South American leader called to support her, including Colombia’s Juan Manuel Santos, the only close ally Barack Obama has left in the region. She promised to attack mass surveillance at the United Nations. Boeing is now likely to lose a US$4 billion deal on fighter jets.
Without the Brazilian buffer, leftists are emboldened. Bolivia’s Evo Morales said he will sue Obama in the international courts for human rights violations after Venezuela’s Nicolas Maduro was blocked for a few hours from flying over Puerto Rico. These two and Ecuador’s Rafael Correa are likely to push more for bringing leaker Edward Snowden to South America. After Hugo Chavez passed away they needed a joint agenda to improve their chemistry.
NSA revelations also made Argentina’s Cristina Kirchner reach out to Brazil to improve their cyber defense. Countries in the region are now paying attention to this project in order to develop their own email systems: specifically designed for those who don’t want Google and Yahoo accounts which allow US intelligence in. That is open retaliation, but much more might happen behind closed doors. American presence is still important; but now that China’s star is rising rapidly as Latin America’s trade partner, the pressure is on the US.
US influence is so low at the moment that even Mexico’s conservative President Enrique Peña Nieto was forced to speak out and demand an investigation. Political pressure gave him no alternative but to condemn the NSA for stealing data on his ministerial picks. Chile’s Sebastián Piñera also had to come out fighting. These leaders aren’t surprised with the surveillance itself, but the reach of it was just too bold.
The times are definitely a-changing. America might be on the way to belonging to all Americans, and that includes Latin Americans as well.
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Is the FBI's Domestic Spying Out of Control?
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