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Programmers as lawyers, "Hey here's a puzzle for you, create and argument using the rules as written by these words, which blocks an activity by this group." Priceless.
I do know that when ADA first passed there was a huge blowup at one of the agencies because the spacing between rows of servers didn't meet the minimum standard for wheelchair access, and they were being told they had to spread out the servers by an additional 6" and subsequently remove one row of them. I expect they came up with some sort of clever workaround.
This article is far too naive. The NSA is more than willing to operate on an extra-legal basis, as they have been for decades. A ruling on body scanners will not - under any circumstances - squelch NSA domestic spying.
It would require a change top to bottom in the government's entire approach to privacy, from the President to the lowest ranking agents. We have a government that has set itself up from an intelligence position of violating privacy without any regard to the consequences. They're not going to suddenly do a 180 and stop, no matter what one ruling says. It's also a massive cost in time and dollars to change out of their approach now, they will not do it willingly.
As the author of the article, I'm generally accused of being too cynical, so it's a delight to see an accusation from the other side.
I generally agree with you on one point, at least. If you believe the NSA is "more than willing to operate on an extra-legal basis" -- they certainly did during the Bush administration -- then the only way to change thing is have a new president who is willing to look into suspected abuses and file criminal charges against .gov employees who go too far. The problem is that those people would have been given legal immunity by the outgoing administration, so it's only a prospective remedy, not a retrospective one.
While I'm impressed at seeing "sea lawyering" done by civilians for once, I'm going to admit that I fail to see how a program that the public didn't know about and didn't notice (since otherwise we wouldn't say Snowden blew the whistle) could possibly be said to "substantively affect the public".
The Verizon FISA court order would be the evidence. I suppose that the groups filing this petition (and likely to litigate eventually) would claim that Americans can be substantively affected in terms of 4A and privacy harms even in the absence of knowledge.
Not an exact analogy, but if the FBI got a secret court to issue a secret order to secretly search everyone's house in a city looking for people doing Evil Thing X, and nobody knew about it until much later, would that presumptively illegal search be something that "substantively affect[ed] the public?"
I like the thought, but I personally wouldn't call a change in knowledge alone a substantive effect, there would have to be some concrete effect IMHO as well. E.g. if I was able to take those phone records and somehow benefit at the stock market by it that could be said to have substantively affected the public, but it would be hard for me to see "knowing a bunch of specific calls were made" as that by itself.
And if the NSA is doing their job near-properly any actual substantive effect would have occurred to the non-U.S. public, which I can't imagine that the Act in question was envisioned to cover.
The intentional violation of the 4th amendment by the government, has a very radical and substantive affect on the American public, both today and even more particularly in the future. The violation of my privacy has an affect on me, regardless of if I know about it: it illegally increases what the government knows about me, against my will and rights; current behavior / beliefs etc can be used against me in the future by a repressive government. Their knowledge base changes their behavior toward me (one way or another), thus an affect upon me.
Simple black and white example: someone takes a dollar out of your bank account every day, but you fail to notice. Does that make it ok? Obviously not, and your freedom is a lot more valuable than a dollar bill. You might not have noticed, but you've lost something.
Another simple black and white example: a law is passed committing me to slavery, but nobody ever comes around to actually enslave me, and in fact absolutely nothing changes - except in government codified documents, it directly states that I am a slave. Has that affected me? Yes, my understood status and rights as a human being have been completely altered. That is the most substantive affect possible, and the same is true about eliminating my right to be protected against warrantless search & seizure. There is little question that when the government alters what it regards to be my rights, thus how it views and treats me, that has a material affect upon my life now and in the future.
The NSA would say that it "substantively affected the public by protecting them".
In fact, that would be interesting case if the NSA claimed to agree with you. Perhaps that is this case's intention. You see if the NSA claimed that it did not affect the public, then there would not be a tradeoff involved in violating privacy.
And then the NSA would claim that more people die from falling in bathtubs than due to terrorism, so that the beneficial effect of their efforts, while psychologically quite morale-boosting, is not actually a substantive effect.
I guarantee they win your game of screwed-up logic. Just look at the contortions they're able to make to record phone calls without a warrant. ;)
http://tsacomments.net/ and http://www.talesfromthe.net/jon/?p=3462 have more