http://www.techdirt.com/articles/20131016/06414624894/doj-argues-no-one-has-standing-to-challenge-metadata-collection-even-as-it-says-govt-can-legally-collect-everyones.shtmlThe government's rebuttal leans heavily on procedural arguments, first pointing out that only the federal government itself or the entity receiving the FISC orders can challenge these orders. In addition, the government points out that the law creating the FISA Court does not provide protection to third parties like EPIC.
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Instead, it's [US Gov't] arguing that no citizen or entity other that the entity the records were obtained from has standing to sue or otherwise challenge FISA court orders.
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."
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The government's opposition to a new trial relies heavily on a recently declassified opinion from the Foreign Intelligence Surveillance Court, which concluded that "where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo."
But that same argument should work against the government's claim that no single person or entity (other than the company handing over the data) has standing, especially in this case. Just as certainly as rights do not "spring into existence," standing doesn't suddenly disappear because the collection is untargeted. If the government can use the argument that a collection of millions of records is no more illegal than the collection of a single person's records, then it would seem reasonable that every person who "provides" these collectible records to third parties would have standing to challenge these disclosures.
1. Third party entity (EPIC) sues NSA for bulk records collection
2. DOJ argues that EPIC has no standing, only those who got hoovered have standing, and wants court to dismiss the case.
3. Dude who was convicted on that hoovered evidence sues (since his records got hoovered, he thinks he's got standing).
4. DOJ argues that since Dude was not the target of the bulk records collection, there is no 4th Amendment issues.
Also, more in depth, the doctrines DOJ invokes have both powers and limits. DOJ argues that no limits ought to apply.
But, hey, these folk are getting due process!
