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DOJ: Defendant Has No Standing To Oppose Use of Phone Records

Unknown Lamer posted about a year ago | from the defense-is-futile dept.

The Courts 396

An anonymous reader writes with news of a man caught by the NSA dragnet for donating a small sum of money to an organization that the federal government considered terrorist in nature. The man is having problems mounting an appeal. From the article: "Seven months after his conviction, Basaaly Moalin's defense attorney moved for a new trial, arguing that evidence collected about him under the government's recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. ... The government's response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' Notably, the government is also arguing that no one other than the company that provided the information — including the defendant in this case — has the right to challenge this disclosure in court." This goes far beyond the third party doctrine, effectively prosecuting someone and depriving them of the ability to defend themselves by declaring that they have no standing to refute the evidence used against them.

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Just remember... (5, Insightful)

Forbo (3035827) | about a year ago | (#45127575)

Anything they suck up in their endless surveillance will only ever be used AGAINST you, never for your defense.

POLICE STATE AMERICA (4, Insightful)

Jeremiah Cornelius (137) | about a year ago | (#45127697)

Not just a provocative Slashdot Discussion Title... But the horrible inevitability you live in today.

Re:POLICE STATE AMERICA (1)

tuxgeek (872962) | about a year ago | (#45128233)

Yep, my thoughts exactly!
Welcome to the Divided Police States of America where you are guilty of anything the gestapo can think up against you, until you can prove yourself innocent .. which isn't going to happen.

If you're an American, probably best to find yourself a remote hole to crawl into until the big meteor or comet that's headed our way hits the planet and resets the game back to start.

Re:POLICE STATE AMERICA (2)

noh8rz10 (2716597) | about a year ago | (#45128247)

i don't understand, is this summary about the argument that the prosecutor is making, or is this the ruling by the judge.

Re:Just remember... (-1)

Anonymous Coward | about a year ago | (#45127825)

Damn that President Bush and Republican controlled Congress. Damn all those conservatives running the Department of Justice. Why can't we get a Democrat in charge? She will fix everything.

Re:Just remember... (1)

Anonymous Coward | about a year ago | (#45128353)

No you idiots, I said rope and chains, not hope and change!

Re:Just remember... (-1)

Anonymous Coward | about a year ago | (#45127841)

This is Obummer's "Hope and Change". Retard W. Bush looks looks pretty damn good in comparison.

Re:Just remember... (-1)

Anonymous Coward | about a year ago | (#45127951)

Oh please, Bush was doing the exact same thing. And half the time the excuse for it was "But Clinton!"

If you love liberals so much, why don't you just suck it up and vote for them instead of having to go through the trouble of dressing up cryptoliberals like Bush.

Re:Just remember... (-1)

Anonymous Coward | about a year ago | (#45128055)

Oh please, Bush was doing the exact same thing.

Not to the extreme that Obummer has taken it. I'd love to see where Bush's DoJ said anything remotely close to this.

And half the time the excuse for it was "But Clinton!"

Yeah, and it was just as retarded then as the "But Bush!!" excuses today.

If you love liberals so much, why don't you just suck it up and vote for them instead of having to go through the trouble of dressing up cryptoliberals like Bush.

Because I don't?

Everyone, all together... (0, Offtopic)

Anonymous Coward | about a year ago | (#45127869)

Hillary 2016!

She'll clean the place out.

Re:Everyone, all together... (-1)

Anonymous Coward | about a year ago | (#45128187)

Hillary 2016!

She'll clean the place out.

Offtopic? What's offtopic?

Re:Just remember... (-1)

Anonymous Coward | about a year ago | (#45128325)

Don't forget that they have not got to prove anything. As far as anyone knows, the whole Snowden leak shpeel is bullshit. This idea that they're tracking everything that everyone does on the internet, and have a huge pile of it all somewhere, to me, seems a bit impossible. Now this idea that no one has the right to refute any of it seems to solidify that idea for me.

Of course, this douche did provide money to a known terrorist group, wtf?

Scary (4, Insightful)

bob_super (3391281) | about a year ago | (#45127579)

"when law enforcement can monitor one person's information without a warrant, it can monitor everyone's information, 'regardless of the collection's expanse.' "

-- totalitarian cliche goes here --

Re:Scary (5, Insightful)

gweihir (88907) | about a year ago | (#45127753)

The really scary think is that they can make claims like this in the open without fear of repercussions. Totalitarian bureaucrats all over the world must be so proud to have the US finally in their ranks.

Re:Scary (0)

Anonymous Coward | about a year ago | (#45127795)

""when law enforcement can monitor one person's information without a warrant"

-- totalitarian cliche goes here --"

FTFY.

Re:Scary (5, Insightful)

Anonymous Coward | about a year ago | (#45127839)

This is actually a good development. This is the type of case - supported by our government's pubic declaration that no more privacy actually exists (with or without a warrant) - that will end up in the SCOTUS. We may finally get this crap struck down ... or we'll all get the officially sanctioned OK to rise up against our oppressive government.

Re:Scary (5, Insightful)

Desler (1608317) | about a year ago | (#45127849)

SCOTUS striking this down? You're joking, right?

Re:Scary (1)

Desler (1608317) | about a year ago | (#45128059)

What exactly in my post is "trolling"?

Re:Scary (4, Informative)

hawguy (1600213) | about a year ago | (#45128237)

What exactly in my post is "trolling"?

Moderators often confuse "I don't agree with you" with "Trolling".

They either haven't read or don't agree with the Slashdot moderation guide:

http://slashdot.org/moderation.shtml [slashdot.org]

Concentrate more on promoting than on demoting. The real goal here is to find the juicy good stuff and let others read it. Do not promote personal agendas. Do not let your opinions factor in. Try to be impartial about this. Simply disagreeing with a comment is not a valid reason to mark it down. Likewise, agreeing with a comment is not a valid reason to mark it up. The goal here is to share ideas. To sift through the haystack and find needles. And to keep the children who like to spam Slashdot in check.

Re:Scary (2)

Anonymous Coward | about a year ago | (#45128019)

Are you talking about the same Supreme Court that ruled the ACA's provisions forcing everyone to purchase something as constitutional, when it clearly isn't? Or a different Supreme Court?

Re:Scary (4, Informative)

Anonymous Coward | about a year ago | (#45128161)

Or a different Supreme Court?

It's the one that ruled that government has the right to tax people to pay for something it was already paying for. Namely, hospital visits that the patient is unable to pay for. You know, since we won't allow the hospitals to refuse treatment to people who are unable to pay.

I know you're upset at no longer getting a free ride, but please, give it a rest.

Re:Scary (2)

I'm New Around Here (1154723) | about a year ago | (#45128261)

However, the federal government does not have that 'right', nor does it have that 'authority'. It is allowed to do what the Constitution allows it to do. Forcing American citizens to buy products from private companies is not one of the powers listed.

Re:Scary (2, Interesting)

adamstew (909658) | about a year ago | (#45128335)

You're not forced to do anything. It is a tax for not buying health insurance. Your choice is to either buy health insurance or pay more tax.

Not very dissimilar to the tax credit for mortgage insurance. One could argue that the government is forcing people to have a mortgage. Not true. They are encouraging people to take out mortgages by giving people with mortgages a tax break. The choice is to either buy a mortgage or pay more tax.

It really is an argument of semantics, but if you boil that all away, you are paying more tax for not buying something.

Re:Scary (2)

iamhigh (1252742) | about a year ago | (#45128341)

So if it was government run, and it was a tax, the argument that it is unconstitutional goes away, correct?

Re:Scary (0)

Anonymous Coward | about a year ago | (#45128387)

It's the one that ruled that government has the right to tax people to pay for something it was already paying for.

the government doesn't have the right to rule that the government has the right to do whatever it wants regardless of the constitution, contrary to what most people in government think nowadays.

I know you're upset at no longer getting a free ride, but please, give it a rest.

don't have a valid point? AD HOM!

Re:Scary (1)

wjcofkc (964165) | about a year ago | (#45128321)

I fear it's the latter, but I'll give the course of events their chance to play out in our favor.

Beyond a "Nanny State" (0, Redundant)

Anonymous Coward | about a year ago | (#45127583)

welcome to 1984, I mean 2014....

Really? (3, Interesting)

PapayaSF (721268) | about a year ago | (#45127625)

This goes far beyond the third party doctrine, effectively prosecuting someone and depriving them of the ability to defend themselves by declaring that they have no standing to refute the evidence used against them.

IANAL, but this statement seems overheated and inaccurate. Of course the defendant can "defend themselves" and "refute the evidence used against them": they can claim they didn't make those phone calls, for instance. What this case seems to say is that they can't simply have the evidence thrown out. That seems like a critical distinction.

Re:Really? (5, Insightful)

ebno-10db (1459097) | about a year ago | (#45127683)

The argument makes sense to me. AFAIK a defendant has the right to know specifically how the evidence against him was collected, and to be given any potentially exculpatory evidence. If you want to claim "national security", then you can't prosecute.

Poisonous tree (5, Interesting)

gd2shoe (747932) | about a year ago | (#45127803)

We know (now) how the evidence was collected. We also know that most of it was collected without probable cause. The issue isn't the method of collection, but the justification for it. This isn't exculpatory evidence that they're withholding; it's evidence that they're using, but was obtained through improper means.

This is the "fruit of the poisonous tree" argument. It doesn't matter if it's true or not; evidence illegally collected by the government can't be used in court because of the "slippery slope" precedence that it sets.

Re:Poisonous tree (1)

Anonymous Coward | about a year ago | (#45127861)

This is the "fruit of the poisonous tree" argument. It doesn't matter if it's true or not; evidence illegally collected by the government can't be used in court because of the "slippery slope" precedence that it sets.

Slippery slope? I'm afraid our rights are already holding on for dear life!

Re:Poisonous tree (5, Informative)

Jason Levine (196982) | about a year ago | (#45128085)

The issue isn't the method of collection, but the justification for it. This isn't exculpatory evidence that they're withholding; it's evidence that they're using, but was obtained through improper means.

Actually, it's both. From the article:

FBI Deputy Director Sean Joyce recently revealed to Congress that the FBI had also conducted another investigation into Moalin's activities in 2003 and ultimately concluded that there was “no nexus to terrorism.” This evidence was kept from the defense during trial.

So not only didn't they collect evidence wrongfully, but the evidence they collected showed that he was innocent and they hid this from the defense. This isn't just slippery slope, this is greasing the slope and then shoving the American people down it!

Re:Poisonous tree (1)

gd2shoe (747932) | about a year ago | (#45128295)

Hmm. Ok.

Just to be contrary, I wonder if the NSA was sharing data with the FBI in 2003. We know they weren't prior to 9/11, and they have been trying hard to keep this program secret. (when did this program start, I wonder?) It's possible there was no evidence to be had in 2003, or that most FBI agents were cut out of the loop.

Re:Really? (5, Insightful)

PapayaSF (721268) | about a year ago | (#45127883)

A little more background, courtesy of the Daily Mail. [dailymail.co.uk] The Slashdot summary is a bit vague, referring to "donating a small sum of money to an organization that the federal government considered terrorist in nature." Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money." You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi. So to say "an organization that the federal government considered terrorist in nature" is to omit some rather important background. By any rational definition, al Shabaab is certainly a terror group.

Re:Really? (0)

Anonymous Coward | about a year ago | (#45128125)

here here, blind adversaries of free speech make the case for speech much weaker, just disaiste, and go smoke more weed from that bitch u think is hot lol

Is this important? (5, Insightful)

Okian Warrior (537106) | about a year ago | (#45128153)

Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money."

Is this important?

He's claiming not that the evidence is wrong, he's claiming that it was collected illegally.

It's often been said that the defense of freedom is the defense of scoundrels (H. L. Mencken [quotationspage.com] ). We believe that a kiddie porn merchant has the right to a fair trial, the KKK has the right to assemble, and Rosa Parks [wikipedia.org] has the right to sit in the front of the bus.

Should we base the legitimacy of rights and freedoms on the character of the accused party?

Re:Really? (5, Insightful)

ebno-10db (1459097) | about a year ago | (#45128167)

You may recall al Shabaab as the group behind the recent slaughter at the Westgate Mall in Nairobi.

As terrible as that was, I wish I could say that qualified as a major slaughter in Africa. Are you aware of what's happened in, for example, the Congo in recent years? The Second Congo War was the bloodiest war since WWII, and most Americans have never even heard of it. I don't know if the US should have gotten involved to stop it, but it didn't. Now we're sanctimonious about a mall shooting? That's called a political agenda, not a concern for human life.

Once again: Really? (2, Informative)

Ungrounded Lightning (62228) | about a year ago | (#45128215)

Apparently Mr. Moalin once missed a telephone call from "Aden Hashi Ayrow, the senior al Shabaab leader," which makes it likely that a little more was going on than merely the donation of "a small sum of money.

Really?

Was it really A.H.A. who called?

Was he really calling the defendant? Or did he misdial the number?

And I could go on for pages.

What the government is claiming is that the defendant has NO RIGHT TO ASK for the information necessary to CHECK whether that is what happened, NO RIGHT TO CHECK whether the information was collected legally, and NO RIGHT TO GET IT THROWN OUT if it wasn't.

Says the government: We get to use this against you and you can't challenge it.

Seems to me that anyone being prosecuted with such information NECESSARILY has standing to challenge it. Nobody else could POSSIBLY have more standing.

To claim that the defendant doesn't have standing is to claim that NOBODY has standing. It's to claim that the government can make up ANYTHING IT WANTS, enter it into evidence, and NOBODY can check it.

The government needs to put up or shut up.

= = = =

There used to be a solid division between the intelligence services and law enforcement. That let the intelligence services collect information for fighting wars under looser rules which, though they might not be constitutional, at least didn't vaporize the constitutional rights of defendants in criminal trials.

Then the congress passed laws for, first the "drug war", then the "war on terror", that tore down this boundary. So now we have the end game, where the NSA and the federal prosecutors light their cigars with burning copies of the Fourth Amendment.

Re:Once again: Really? (1, Informative)

PapayaSF (721268) | about a year ago | (#45128291)

Was it really A.H.A. who called? Was he really calling the defendant? Or did he misdial the number?

From the FBI press release: [fbi.gov]

At trial, the jury listened to dozens of the defendants’ intercepted telephone conversations, including many conversations between defendant Moalin and Aden Hashi Ayrow, one of al Shabaab’s most prominent leaders who was subsequently killed in a missile strike on May 1, 2008. In those calls, Ayrow implored Moalin to send money to al Shabaab, telling Moalin that it was “time to finance the Jihad.” Ayrow told Moalin, “You are running late with the stuff. Send some and something will happen.” In the calls played for the jury, Ayrow repeatedly asked Moalin to reach out to defendant Mohamud—the imam—to obtain funds for al Shabaab.

The United States also presented a recorded telephone conversation in which defendant Moalin gave the terrorists in Somalia permission to use his house in Mogadishu, Somalia, telling Ayrow that “after you bury your stuff deep in the ground, you would, then, plant the trees on top.” Prosecutors argued at trial that Moalin was offering a place to hide weapons.

When Moalin cautioned, however, that the house could be easily identified from afar, Ayrow replied, “No one would know. How could anyone know, if the house is used only during the nights?”

Re:Really? (2)

AHuxley (892839) | about a year ago | (#45128087)

The way many countries will be looking to get around out dated notions of "evidence", "collected", "embarrassing" or "potentially exculpatory evidence" is to have a short list of cleared legal defence teams.
In your name they will view evidence (at their limited clearance levels) with the gov and judge in a secure area. Your lawyer will get back to you and give you the gist of your case in 'public' terms.
You are now fully aware of any exculpatory evidence in a public court room setting and all your rights have been fully protected.

Re:Really? (1)

AHuxley (892839) | about a year ago | (#45127941)

So you will be facing the full force of a domestic surveillance state. All your calls get logged and put in a nice 'locked box'. A computer and bureaucrat decides your 'free speech' or 'freedom to assemble' or 'grievances' or 'joke' reaches a where court investigation becomes allowable.
Your funds are frozen, you are transported around the USA a few times away from your family, friends and your legal team.
You face court. You have a lawyer of sorts and your going to demand to see what evidence? Expecting you will be read into the inner working of the "locked box" in public court?
See how the gov first found you, worked on an on going wider profile, watched your home and finally arrested you?
All the other lawyers, press and law reform types will be all over your case. Your funds will be limited, your legal clearance to examine any evidence limited. The courts almost always convict. The fact you made it to court means the gov felt your important - "substantial support", "belligerent act" "associated forces" will make it to the tame press before your lawyer can even mention "inaccurate".

Re:Really? (4, Interesting)

PapayaSF (721268) | about a year ago | (#45128141)

Look, I'm not cheerleading for the NSA, or defending their dragnet surveillance, which I consider a "general warrant" and thus a violation of the 4th Amendment. I'm just saying that in this case, it looks like they got someone who did a bit more than donate a little money to a questionable organization. When the head of a major terrorist organization calls somebody in San Diego on the phone, that's a pretty big red flag. Noticing that a foreign terrorist leader is calling someone in the USA is exactly what the NSA is supposed to be doing. Did the government do something underhanded to convict Mr. Moalin? It's unclear. It's very possible that this is another Al Capone situation: they couldn't get Capone for the major crimes they knew he had committed, so they got him for tax evasion. (Capone's official story was that he made his money in the second-hand furniture business.) In the Moalin case, it does look like they convicted someone who deserved it.

Re:Really? (2, Interesting)

ebno-10db (1459097) | about a year ago | (#45128197)

It's very possible that this is another Al Capone situation: they couldn't get Capone for the major crimes they knew he had committed, so they got him for tax evasion.

And they did it without violating the 4th Amendment. Perhaps in those days school kids actually paid attention when they learned about the Constitution.

Re:Really? (3, Insightful)

Jason Levine (196982) | about a year ago | (#45128037)

One of the big corner stones of the criminal justice system is that both parties have equal access to the evidence and witnesses. If you were charged with murder, the prosecution couldn't have a surprise witness appear, give testimony, and then leave without your lawyer having the ability to cross-examine. If the prosecution has a potential witness, they need to disclose this to the defendant's lawyers ahead of time so that the defense can prepare.

What the government is essentially saying with this is "we can present 'a witness' (the phone records) but won't allow the opposing side to 'cross-examine' said evidence to cast any doubt that it isn't true." So the jury will be left with the government's side ("these phone records show he's guilty") and the defense's side (shrugs). Who do you think they'd go with?

Even worse, the article states that the government looked into the defendant's actions again and concluded he had no link to terrorism. This was done before his trial and was kept from the defense. Going back to the murder analogy, this would be like the police finding a gun with prints on the scene, realizing the prints were NOT the defendant's, and then hiding said gun so that the defense couldn't use it to acquit. Actions like this undermine our criminal justice system.

Re: Really? (0)

Anonymous Coward | about a year ago | (#45128297)

Where did you get the impression the defense doesn't have access to the evidence???

Re:Really? (3, Interesting)

the eric conspiracy (20178) | about a year ago | (#45128319)

> What the government is essentially saying with this is "we can present 'a witness' (the phone records) but won't allow the opposing side to 'cross-examine' said evidence to cast any doubt that it isn't true."

Not true at all. The defense certainly can challenge the accuracy of the evidence. What they don't have is standing to challenge the government supoena of the evidence. Basically once you disclose the evidence to a third party you lose any right to claim privacy on something unless there is some kind of privilege, such as doctor patient in force.

It's actually horrifying that Slashdot is getting so wrought up over this. It's old law, i.e. United States v. Miller (1976).

Now some people have proposed that this be updated for more modern times. Something that's worth discussing. But the idea this is new is poppycock.

Re:Really? (1)

Joiseybill (788712) | about a year ago | (#45128327)

The evidence in this particular case was specifically the metadata collected by the phone company; metadata involving terror suspects outside the US. That metadata led the NSA to tip the FBI - " the investigation you dropped in 2008.. well it appears your subject is now connected with a 'hot' number in Somalia (strongly implicated in terror activities). " That led to the FBI re-opening their investigation with this added lead, and through normal channels they escalated to wiretaps and physical searches. The metadata was part of discovery, and pretty much looks like a phonebill that would have been mailed to the subject anyhow. ( last pages of the referenced PDF filing.) This ruling ( appears to me, IANAL).. is already supported by several prior cases that say 1) your records of doing business with a 3rd party are not protected; you know the 3rd party needs the info to bill you, and you consented to them maintaining those records. 2) if we ask ( or subpeona) the 3rd party for business records of theirs, customers of that 3rd party don't own the records.. the 3rd party biz is the record owner. 3) I read the court document twice, and I don't see any reference to " you can't defend yourself" or " if we can collect data on anybody.. this meanz u!".. of course, that may have been redacted. I do see phrases close to that referenced in the second article, where an EFF staff attorney is making his case using hyperbole for the press. .. don't get me wrong. I support most of what EFF stands for, and I don't appreciate the erosion of our rights. However, I do believe that raising legitimate arguments to my elected officials, or to proxy lobbying groups if we must.. is the way to address these things. FUD doesn't work in the long run, because it is too easily dismissed. If someone could take some of the grant/SBA loan money designed to provide rural phone service/ last mile high-bandwidth internet, and introduce a model with privacy built-in, that's a product I'd be willing to switch to, and let my marketplace dollars do the talking.

Re:Really? (0)

Anonymous Coward | about a year ago | (#45128347)

No, what they're saying is that.... it's the same thing as if there are 5,000 witnesses that say "He did it!" You cannot defend yourself against that. That dude that broke the leg of that ice-skater, he had no way to defend himself. It's the same as that.

If you want revenge on someone ... (2, Interesting)

Alain Williams (2972) | about a year ago | (#45127631)

get a job at the NSA, cook up something incriminating and toss it over the wall to the CIA/.... The guy who you want to stiff will never see what you made up and so will be banged up without a chance to defend himself. Can't be bothered to get a job there, a package of greenbacks in a brown envelope to a NSA employee with health problems or going through a divorce will do the job.

Exaggerated, improbable ? Maybe, but not impossible.

Re:If you want revenge on someone ... (1)

Bomarc (306716) | about a year ago | (#45127781)

Don't need to go that far. Just get a phone in their name. Go to the local library, sign in w/ their name, and look up some web sites that might be questionable - call them with the phone in their name. When you get tired of it, make sure the phone is "lost" at their house (or car).

Re:If you want revenge on someone ... (0)

Anonymous Coward | about a year ago | (#45127901)

If you have read the "news" over the decades that I have (1960s to 2010s), you would know that this already happens. Even the latest news reports tell us that NSA employees use the Federal Government's resources to spy on their sweethearts and spouses--which is proof enough of the ability to "place" information where they want to. Law Enforcement Officers have been "planting" evidence as long as there have been LEOs.

Should burn down the houses of the company CEOs (-1)

Anonymous Coward | about a year ago | (#45127665)

for willingly giving up our data without a fight. Refuse. Take it to court.  Unamerican pigs should be executed for selling us all out.

Fine Print (1)

Meditato (1613545) | about a year ago | (#45127671)

The provider almost certainly has a clause in their ToS/Contract specifying that they may turn over records for law enforcement purposes. I am going to guess that legally speaking, Basaaly Moalin does not have a leg to stand on.

The state security apparatus views third-party services as a way to circumvent pesky legal red tape like warrants. We need more companies that actually fight gag orders and warrantless data requests.

Re:Fine Print (1)

ebno-10db (1459097) | about a year ago | (#45127723)

The provider almost certainly has a clause in their ToS/Contract specifying that they may turn over records for law enforcement purposes.

So what? ToS don't trump the Constitution, and "may turn over records for law enforcement purposes" can mean records that are subpoenaed.

We need more companies that actually fight gag orders and warrantless data requests.

That would be nice, but I don't think we should rely on the XYZ Communications Corp. to enforce the Constitution. That's the job of the courts, and it'll be interesting to see how this appeal goes.

Re:Fine Print (0)

Anonymous Coward | about a year ago | (#45128079)

ToS don't trump the Constitution, and "may turn over records for law enforcement purposes" can mean records that are subpoenaed.

Corporations and other non-governmental third parties can willingly give the government any information they want and the Constitution has no bearing. Not that it makes them right, but your argument is extremely shoddy.

Re:Fine Print (2)

ebno-10db (1459097) | about a year ago | (#45128293)

Corporations and other non-governmental third parties can willingly give the government any information they want and the Constitution has no bearing.

Because SCOTUS conveniently decided there was no reasonable expectation of privacy in phone records, where only 10 years before they'd ruled that there was. SCOTUS has spent much of the last forty years discovering clever loopholes in the Bill of Rights. There is no particular logic, consistency or common sense to these decisions, but who cares? Nobody can overrule SCOTUS.

Re:Fine Print (2)

Meditato (1613545) | about a year ago | (#45128111)

So what? ToS don't trump the Constitution, and "may turn over records for law enforcement purposes" can mean records that are subpoenaed.

You are confusing private contracts with government charters- the two don't necessarily relate. A private entity can give your data to whoever they want so long as you agree to it by accepting the ToS (provided they include the permission in the fine print). It's not wiretapping. You're giving the private entity free reign, and the private entity is giving the government free reign. Yes, it's legal. Yes, it's constitutional (according to current judicial precedent). The Constitution does not ban your ISP from tattling on you to the government as long as you agree to allow them by accepting their ToS. The Constitution only pertains to scenarios where the government wants to search someone or their possessions directly. If you give your possessions over to someone, and you sign a contract with them saying they can give it to the government, then it's not illegal for the government to take it.

I'm obviously not defending this, but this is just the current legal reality. Current common law precedent and overly-permissive DoJ civil law interpretation have conspired to allow this sort of loophole.

Re:Fine Print (1)

ebno-10db (1459097) | about a year ago | (#45128377)

You are confusing private contracts with government charters

No, I'm not.

The Constitution does not ban your ISP from tattling on you to the government as long as you agree to allow them by accepting their ToS.

Correction: SCOTUS does not ban it - the Constitution is another matter. Let us not forget that SCOTUS is the same institution that, amongst many other abominations, held for almost 100 years that "separate but equal" was Constitutional.

BTW, ToS has no bearing in such a matter. That's a matter of civil law. If their ToS doesn't allow that, it doesn't prevent the government from using it as evidence. It means you can sue your ISP from a prison cell.

What do you people expect? (0)

Lumpy (12016) | about a year ago | (#45127687)

It's the new world order, get used to it.

Or start removing your data stream. Operate with cash only when you can, Dont publish everything you do, etc...

Besides, why do all of you even care? you only have something to hide if you are a terrorist. You are not a terrorist are you? No? then you have no problem for us to search your house citizen....

Only you can control your information leakage.

Re:What do you people expect? (0)

Anonymous Coward | about a year ago | (#45127767)

Only you can control your information leakage.

Not true... the problem here is that the NSA can also control your information leakage, as well as the accuracy of the information, with no oversight.

Re:What do you people expect? (0)

Anonymous Coward | about a year ago | (#45127991)

Only you can control your information leakage.

Yes, and only sheer ignorance can blind a man this bad to realize a decade from now when the skies are filled with drones that your argument here is about as worthless as YouTube on dial-up.

Sure, we want to be protected from terrorists, but off-grid living in a fucking cave in fear of our own goddamn government sure as hell wasn't the solution any of us were expecting.

Wait, what? (1)

fuzzyfuzzyfungus (1223518) | about a year ago | (#45127691)

So, if I understand this argument correctly, the only evidence that I would have standing to challenge would be evidence provided directly by me? Isn't virtually all evidence '3rd party' in that it's collected by somebody else, often from something that the suspect doesn't themselves own?

Abuse of our legal system, plain and simple (2, Informative)

Tetetrasaurus (1859006) | about a year ago | (#45127715)

This guy knew straight-up he was funding terrorist activities, and is trying to use a technicality to get out of it. This is an abuse of our legal system, but, that just goes to show what a good legal system we have. As insulting as it is that we have to entertain this "appeal", we are entertaining it, entirely seriously, which goes to show who we are as a nation and our commitment to the rule of law and justice.

Read up on the case, it's enlightening: http://www.fbi.gov/sandiego/press-releases/2013/san-diego-jury-convicts-four-somali-immigrants-of-providing-support-to-foreign-terrorists [fbi.gov]

Re:Abuse of our legal system, plain and simple (2, Interesting)

kesuki (321456) | about a year ago | (#45127865)

there are a lot of people who send money overseas to poor relatives. i realize in this case it's a real guy trying to fund terrorists but how is that any different from sending money to a relative who happens to be islamic and might someday take up arms against american interests over seas? where does the slippery slope begin and where is the point of no return?
there are people who can't get jobs because the big companies won't hire qualified americans and insist on h1b visas to fill jobs, it makes me sick just thinking of how corporations can do no wrong in republican eyes.

troll alert - non sequiter comment (0)

Anonymous Coward | about a year ago | (#45127967)

a conclusion or statement that does not logically follow from the previous argument or statement.

questionable abuse of customer information becomes rant on big companies - h1b and then - republicans

as if democrats have had nothing to do with the gaming of economic freedoms for their own self aggrandizing interests

How many of the top ten richest senators are democrats?
How many of the top ten richest representatives are democrats?

To paraphrase George Carlin - it is a club - and you and I are NOT in it!

Re:troll alert - non sequiter comment (1)

Tetetrasaurus (1859006) | about a year ago | (#45128203)

Yes, you have my complete internet posting history, understand some of my distant past rhetorical techniques and are repeating them back to me, and you know who I am but I don't know who you are. That's the power of the internet, and I accept it, and do not live in paranoia of it. Rather, I am glad there are different people/groups/entities who make it their business, for whatever reason, to do such things. It's a form of checks and balances. The key though is to understand that it's a two-way street. You may know who I am, but others know who you are, and (so far) sanction your actions. We're all a lot more connected and vulnerable than we allow ourselves to accept.

For what it's worth, I hope you have a good day, and if you want to contact me I'd be up for it, if that was on your mind. But, if you want to "stay hidden," from me, at least, then, well, okay, I guess. Take it easy. Aren't you lonely though? This hiding behind anonymity thing while demonstrating knowledge of another, with with you, I sense, is just another form of "getting over" which is really about exerting a sense of control over others, and enjoying making other people suffer, which is ultimately unfulfilling and isolating, and is a kind of addiction. I don't engage in this though, so I might be the kind of person you'd want to know. At any rate, it'd be interesting. Hope to hear from you.

So close, but yet so far away. It's cruel for those like us.

Re:Abuse of our legal system, plain and simple (0)

Anonymous Coward | about a year ago | (#45127949)

[fbi.gov]

Well, I'm sure *that's* an unbiased source.

Re:Abuse of our legal system, plain and simple (2)

AlphaWoIf_HK (3042365) | about a year ago | (#45127997)

which goes to show who we are as a nation and our commitment to the rule of law and justice.

The fact that we have people getting molested at airports, shoved off into free speech zones, and spied on by the NSA should tell you who we are as a nation; liars. We are not 'the land of the free and the home of the brave'; that is mere propaganda, just like the DOJ's name.

Re:Abuse of our legal system, plain and simple (5, Insightful)

ebno-10db (1459097) | about a year ago | (#45128095)

This guy knew straight-up he was funding terrorist activities

I don't give a damn. I could care less if he's as guilty as sin. The Constitution is more important than catching some two-bit financial contributor to an organization the US government has labelled terrorist. You want the terrorists to win? Just keep wiping your ass with the Constitution. Then the terrorists win by getting us to abandon what's been the organic law of this country for over two centuries, and which every school child in this country is taught the importance of (apparently many people didn't pay attention in class).

As insulting as it is that we have to entertain this "appeal"

We won't know if it's being seriously entertained until he's granted a new trial, and the court takes his case seriously.

And what's insulting about it? I'll posit that he's guilty. It's still a defense attorney's obligation to try to get his client off. It wouldn't be the first time that evidence was tossed out because of a Constitutional violation. It's more important to defend the Constitution than it is to not let one or two criminals off.

Read up on the case, it's enlightening

What better source to get unbiased information than the FBI. Even believing everything the FBI says, this case is penny ante. Why not give them the same strict punishment that HSBC got for knowingly laundering billions of dollars over a period of years for terrorist organizations? I'd worry a lot more about that than a contribution that most people could put on their credit card.

Re:Abuse of our legal system, plain and simple (1)

Tetetrasaurus (1859006) | about a year ago | (#45128277)

I agree, laundering money for terrorist organizations like the case you cite should land all knowingly involved in a deeper jail than even a true believer, simply because you are doing it for purely selfish reasons to make money, and are indifferent to the very real deadly consequences of your actions. But I think it's naive to think that in such a huge case that there wasn't something else going on, that many of the right people knew about it for a long time and then used it for good purpose. Why scare away the moths if they're all burning themselves to death on your flame?

Re:Abuse of our legal system, plain and simple (1)

0111 1110 (518466) | about a year ago | (#45128395)

This guy knew straight-up he was funding terrorist activities, and is trying to use a technicality to get out of it. This is an abuse of our legal system, but, that just goes to show what a good legal system we have.

It is not an abuse of our legal system and it does not demonstrate that we have a good legal system. Our legal system is shit. There are very good reasons for the various fruit of the poisoned tree rules of evidence gathering. In a good legal system only legally gathered evidence is admissible. It may very well be true that the guy was funding terrorists, but in our legal system the state must prove its case with evidence that was obtained legally. Evidence that was obtained through illegal dragnet surveillance should not be admissible.

Speech (2, Interesting)

Anonymous Coward | about a year ago | (#45127721)

If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?

Re:Speech (4, Insightful)

ebno-10db (1459097) | about a year ago | (#45127737)

If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?

Touché.

Re:Speech (0)

ebno-10db (1459097) | about a year ago | (#45127757)

Forgot to add, it's a shame that lawyers and judges specialize in rationalizing inconsistency. There's a reason the phrase "legal reasoning" is used ironically.

Re:Speech (-1)

Anonymous Coward | about a year ago | (#45127977)

It's what happens when courtrooms become less about finding of fact than about finding whose lawyer has the bigger dick.

Re:Speech (0)

Mitreya (579078) | about a year ago | (#45128165)

If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?

Who's marking it down as a troll?

There is no "-1 Disagree" mod. If you have a counter-argument, post it instead of down-modding.

Re:Speech (0)

Anonymous Coward | about a year ago | (#45128229)

Welcome to the new Slashdot. The moderation system is here to enforce "groupthink".

Re:Speech (1)

PapayaSF (721268) | about a year ago | (#45128213)

If money is speech as is precedent in the U.S, why is his donation to a terrorist group not protected under the first amendment?

Because some forms of speech, even in the form of money, are illegal. I can't buy heroin. I can't claim I own a stolen car, sell it to you, and then use free speech as a defense after the police tow it away, give it back to the rightful owner, and arrest me. I can't solicit someone to murder you and use free speech as a defense.

They begin to show their true colors... (3, Interesting)

gweihir (88907) | about a year ago | (#45127727)

Obviously they _want_ a police and surveillance state where everybody is a perpetrator and everybody needs to be constantly afraid and keep their mouth shut. The steps to come are extreme behavioral regulations, an one-party system, removal of most personal freedoms, death camps for anybody undesirable etc. Just look a bit at history (Germany, USSR under Stalin,...), or at what North Korea is doing to see where the US will be in 20 years or so if this is not stopped _now_.

Re:They begin to show their true colors... (1)

roc97007 (608802) | about a year ago | (#45127763)

an one-party system

I think we've already got this one.

Re:They begin to show their true colors... (4, Insightful)

AHuxley (892839) | about a year ago | (#45128021)

One generation sees "something" and all the rights get weakened to the point of been useless. Color of law, giving more weight to the domestic surveillance findings, a NSL, our allies use the same methods, they where going to protest without the city paperwork and telling the police first.
Now the legal rights after arrest are been hurriedly closed off.
No basic rights to protest, no basic rights during the investigation and interrogation, no legal secrecy standing before the court, no public trial with fully presented evidence, make a fuss and other medical options become available.

So... (1)

ameyer17 (935373) | about a year ago | (#45127747)

When do they become the DoI... the Department of Injustice?

Re:So... (1)

dbc (135354) | about a year ago | (#45127811)

If one has been paying attention, one would have to conclude that this is the most corrupt DOJ in the nation's history. Yet the press doesn't call them on it, or investigate any of the many curious leads.

Re:So... (0)

Anonymous Coward | about a year ago | (#45128135)

The press who once adored Obama to the point that they refused to make any bad press about the man is now so afraid to do it that they won't. How the tables turn...

Point of order. He isn't refuting the evidence (5, Insightful)

DaveV1.0 (203135) | about a year ago | (#45127801)

He is not claiming the evidence is wrong, which is a refutation. He is claiming the evidence was collected illegally, which would allow the court to exclude the evidence. The government is claiming that he doesn't have standing to claim the collection was illegal, only the company the data was collected from can do so because the data doesn't belong to him but rather to the company.

Re:Point of order. He isn't refuting the evidence (0)

Anonymous Coward | about a year ago | (#45127995)

To summarize.. A terror supporter is trying to get off on a technicality.

Re:Point of order. He isn't refuting the evidence (1)

AlphaWoIf_HK (3042365) | about a year ago | (#45128049)

And the government is as slimy as ever. Who he is or why he's trying to do it are completely irrelevant; how they obtained the evidence is, however, very relevant.

Re:Point of order. He isn't refuting the evidence (2)

Desler (1608317) | about a year ago | (#45128099)

No, he's holding the government to the rules of law. The rules of law apply no matter who the person is.

Re:Point of order. He isn't refuting the evidence (1)

roninmagus (721889) | about a year ago | (#45128223)

Hah! Ahahaha! LOL.

Re:Point of order. He isn't refuting the evidence (1)

DaveV1.0 (203135) | about a year ago | (#45128309)

Sort of. The problem is that the collection hasn't been ruled illegal in any cases directly challenging it. The government could still turn around and say that the collection of his data was incidental to the actual target of the investigation and that investigation was legal. I have a feeling that this may be just an opening move by both parties.

four boxes (1)

pla (258480) | about a year ago | (#45127885)

Wow. Time to start stocking up on the fourth box [wikipedia.org] .

These dumb fucks in charge really plan to see this through to the end. Not cool.

Thank god for Obama been bomb-a! (0)

Anonymous Coward | about a year ago | (#45127917)

Surely he won't let such an injustice actually occur. Surely he will ensure his government is transparent like he has promised. Surely Obama isn't a big fat liar, a traitor to the American people, and the worst terrorist of them all. Surely!

Hope and Change! (0)

Anonymous Coward | about a year ago | (#45127969)

The most transparent administration evah!!!!!
 
I hope you fucks are enjoying this.

What organization did he support? (0)

Anonymous Coward | about a year ago | (#45128053)

It is really hard to tell who is a terrorist now a days. I there some kind of list that changes every few weeks or so we can know if we are participating in terrorism or just being part of the normal democratic process and supporting our party. Or is it the kind of thing where the government lets you know you are a terrorist when you are put in jail, and the secret evidence is read off against you?

Just because you are inncoent doesn't mean they can't lock you up and throw away the key. After all with more and more laws being created everyday, it is pretty much a garantee that everyone is guilty of something. And for this you will receive free room and board for life along with everyone else in the Incarcerated States of America.

Summary is wrong. (1)

Shavano (2541114) | about a year ago | (#45128131)

You are guaranteed the right to challenge the ACCURACY and the prosecution's INTERPRETATION of the evidence used against you. You can't challenge the government's ability to get that evidence from a third party. If you could, no one would ever be convicted of anything.

America (1)

Swampash (1131503) | about a year ago | (#45128149)

Comin' again to save the motherfuckin' day yeah!

What do you expect? (0)

Anonymous Coward | about a year ago | (#45128217)

As long as the Department of Justice is headed by a crook of the moral turpitude of Eric Holder, it will bend the law any which way it likes. Remember that Eric Holder was forced to investigate himself after repeated perjury before congress in the Fast and Furious affair, and let himself off with a smile.

He would be the one responsible for leading the prosecution of Clapper and other NSA scum before congress and committees and stop their gamesmanship with law and order. But obviously, with dirty hands like that he is not going to do anything to his cronies.

As long as Holder remains in his position as Attorney General, corruption will run rampaging and unchecked in the current government.

it's not what they know ... (1)

farble1670 (803356) | about a year ago | (#45128227)

it's not what is known about you, it's if and how it's used against you. if we aren't now, we will soon be in an age where it's *impossible* to retain your privacy. if you are still trying to retain your privacy, you've probably already lost. if you haven't lost, you're living an increasingly non-technological lifestyle.

i don't care what the gov't and corporations know about me. i do care if they can use that info to deny me home loans, insurance, health care, etc.

as for Mr. Moalin, i'd be outraged if he was hauled in and questioned simply because he was muslim. i'd be disgusted if he was arrested because he sent money to relatives back home. i'm not so worried about him being arrested for giving money and to, and interacting with known terrorists / murders.

The freedom country (1)

brodock (1568447) | about a year ago | (#45128235)

Enjoy your freedom. OH WAIT

Quit calling them the "Department of Justice". (1)

jcr (53032) | about a year ago | (#45128361)

If we actually had a department of justice, the entire NSA would already be behind bars and awaiting trial. What Holder is running is an obedience enforcement persecution agency.

-jcr

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