As you may recall from the very first of the Snowden leaks, every three months for many years, the Foreign Intelligence Surveillance Court has been authorizing the bulk phone data collection — a list of every phone call you and everyone else in America has ever made, to be kept in a government database — by the NSA. Yesterday, the FISC issued yet another 3 month authorization to do the same.

A federal judge has now opined that this program is illegal. The author of the Patriot Act himself says the program is illegal. The people have made clear that this program is unacceptable and failing to meet any popular definition of “reasonable” (you know, the kind of reasonable the Fourth Amendment requires). But the FISC keeps on giving.

Last Summer, I mailed the FISC hundreds of motions to reverse their order to collect our personal information, on behalf of people who submitted paperwork at MyNSARecords. Each and every one of these motions was ignored. Not even denied with a pleasant letter, but completely ignored.

It’s as if this court is blind, deaf, and dumb. But what should we expect from a secret court that issues secret laws?

Crotchety old man and federal judge William H. Pauley III ruled today, out of his ivory tower at 500 Pearl Street, that NSA phone spying is lawful. As if he were a hired spokeshole for the government, he concluded that “Telephony metadata would have furnished the missing information and might have permitted the N.S.A. to notify the Federal Bureau of Investigation of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States” — in other words, that NSA spying may have prevented 9/11.

Of course, we all know that the spying program would have had no chance at preventing 9/11, since we already knew that these guys were terrorists. It was not due to lack of information that 9/11 was a successful day for the Al Qaeda crew, but rather because we failed to actually do anything with the information we had — perhaps because we already had so much information that it became possible to act upon. You see, when you have four Libraries of Congresses worth of data being ingested every day (back in 2011!), you can’t possibly do anything useful with that data proactively. All you do is flood your investigators with a flow of information that dilutes the useful intelligence gleaned through more narrow (and lawful) means.

The ruling is not surprising to me, because I sat before Judge Pauley in a 2008 civil case, Twelve Inches Around Corp. v. Cisco Systems, Inc. The Plaintiff was one of my startups, and the case was asking for damages after Cisco, who didn’t like my business idea, got my company’s Web site shut down by filing a false trademark infringement notice with my Web host (we ended up settling before trial). During pre-trial hearings, Judge Pauley, quite simply, seemed upset that he should have to waste his time on the case, and displayed a level of interest, patience, and cool-headedness below that of any other federal judge whom I’ve had the pleasure of appearing before. That Judge Pauley failed to grasp the severity of the intrusion on our privacy is entirely expected. He is, quite simply, an asshole.

Luckily, a couple weeks ago a few hundred miles south in a small town called D.C., a judge ruled the exact opposite of Mr. Grumpypants here in New York, increasing the odds that we shall see a resolution of the conflicting opinions by the U.S. Supreme Court.

A bit of good news: a federal judge has ruled that the NSA’s blanket phone spying operation is “likely unconstitutional” and has granted a temporary restraining order against it, which he immediately stayed pending appeal. U.S. District Judge Richard Leon blasted the NSA in his 68 page ruling, noting that he “cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen.”

It’s about time. Let’s see what the D.C. Circuit has to say…

The following thought process is quite common among Americans:

• I know the government can read my e-mails, tap my phone calls, watch my Facebook, etc.
• I’m not doing anything wrong… my life would probably bore an analyst to sleep.
• So why should I care? I’ve got nothing to hide, and it probably keeps us safer!

HuffPo published an article today entitled, “Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit ‘Radicalizers’.” The article details how the NSA will go through the e-mails of its targets to find not merely evidence of criminality, but anything it can use to discredit an opponent. You’re a radical Muslim but read pornography? If your followers knew, maybe they’ll think you’re less holy. You’re a U.S. military officer who doesn’t tow the political line? Maybe revealing your affair will force you to resign.

Back to the thought process described at the beginning, if you think you have “nothing” to hide, perhaps you were thinking “nothing criminal.” That’s likely not true since, because we’ve criminalized virtually everything, the average American commits 3 felonies per day, generally not even knowing. But even if it were true, it doesn’t matter: someone who knows everything about you can destroy you. Perhaps there’s a youthful indiscretion that, if known, would cost you your job. Or perhaps you merely snuck out of work for a few hours without telling your boss. Maybe you don’t want it revealed that you’re gay. Or a supporter of a particular political cause. Or afflicted by a mental disorder.

Maybe you’re 100% “pure” and have no vices. But someone who knows everything about you can set you up. They would know just how to make it seem like something was done the way you would do it, and just what it would take to convince everyone in your life to believe the lie, because they’re spying on them too.

But they’d never do that to you personally, because why would they target you? Ahh, they probably wouldn’t do it to you now. But maybe in 5 years, there’s a popular political movement that you feel you can’t support. Or your favorite hobby has been branded a criminal act. Or maybe you just pissed off an NSA analyst by taking the last Xbox 360 at Walmart on Black Friday.

Your privacy is important, even if you’re doing absolutely nothing wrong. A society in which the government can pick any one of us to crush is a scenario much more dangerous than a middle eastern terrorist.

Six months ago we learned that the NSA keeps a record of pretty much every phone call made within, to, or from the United States. Because terrorists, of course. Which terrorists have been brought down by this mass collection of data? Can’t tell you… classified!

Nowadays, most of us have come to understand that “classified” means “embarrassing” more often than it means “secret that would aid our enemies.” The government, simply, has lost its credibility after having been shown to have abused our trust over and over. But for those who still give the government the benefit of the doubt, three men with access to the classified rationale behind the phone spying have gone on the record that “no evidence that the bulk collection of Americans’ phone records has provided any intelligence of value that could not have been gathered through less intrusive means.” These three men are U.S. Senators Udall, Wyden, Heinrich, all of whom are on the Senate’s Intelligence committee.

The Senators’ statement comes in the form of an amicus brief filed in First Unitarian Church v. NSA, which is the EFF’s challenge to NSA spying. This brief devastates any argument the government has, or planned to, put forward that the phone spying is necessary to fight terrorists. I have no idea how the U.S. attorneys arguing the other side can possibly defend their client at this point. Make some popcorn, the DoJ is about to have to get creative.

The NSA hasn’t had a lot of big fans since the June revelations that show it decided that U.S. terrorism laws designed to allow wiretaps of terrorists actually allowed it to wiretap the entire country (not to mention most of the rest of the world). But there has been one consistent fan girl: Sen. Dianne Feinstein (D-CA), Chariman of the Senate Intelligence Committee.

Dianne seemed to be perhaps the only one in Congress who was actually up-to-date on the NSA’s mass spying and has defended it from the start. She has maintained that it is both constitutional and necessary for the government to record the source, destination, and duration of every phone call made within the U.S., proclaiming:

The call-records program is not surveillance. It does not collect the content of any communication, nor do the records include names or locations. The NSA only collects the type of information found on a telephone bill: phone numbers of calls placed and received, the time of the calls and duration. The Supreme Court has held this “metadata” is not protected under the Fourth Amendment.

Each and every defense of the NSA’s programs she has used has since crumbled. In August, for example, she stated that the NSA has “never… intentionally abused its authority,” when a few days later it came out that NSA analysts would routinely spy on love interests.

But apparently, last week’s revelations are indefensible, even for Dianne “<3s NSA" Feinstein. Upon the disclosure from the Snowden archives that the government was wiretapping the leaders of our closest allies, Dianne admits (or should I say, "claims") that she had not been filled in with all the details of the NSA's work, and commented, “let me state unequivocally: I am totally opposed.”

With that, it seems the NSA is fresh out of friends. It finally also shows that the NSA has always been fresh out of oversight: when the Senate Intelligence Committee and (allegedly) the President don’t even know what a federal agency is up to, who the hell does?

Breaking this morning is a story that the DEA uses the databases of other law enforcement agencies, including the NSA’s vast phone and Web databases, to identify potential criminals. Then, when they find someone, they’ll look for a way to search the person without giving away that they used those databases, which they’ve coined “parallel construction.”

Parallel construction is a euphemism made up by the government for conducting an unlawful search and then unlawfully concealing that fact from both the courts and defense attorneys, in violation of the Fourth, Fifth, and Sixth Amendments to the U.S. Constitution, various federal statutes (perjury being the most significant), and the rules of every court. When an illegal search is conducted, it cannot be “made right” by using the bad info and figuring out another way to nab the guy. It’s called using the “fruit of the poisonous tree” and it has been dismissed by every court for about 80 years.

The government will always start its illegal searches with those repulsed by society — terrorists, child pornographers, drug cartel members — and slowly work its way back to “garden variety” criminals. The courts will say, “well, we made it legal for the terrorists, why not for the guy who failed to use his turn signal?” If we don’t stand up for everyone’s rights — even the rights of the most despicable — the rights will be gone for all, and we’ll have deserved it for so easily giving them away. Or instead, we can demand now that the government catch everyone — even terrorists — using investigations that follow the law, followed by a trial that affords them full due process, and only then followed by a jail cell that they justly deserve.