Time to #NullifyNSAPrivacy advocates this week have been jumping for joy. Two “big wins” happened in just a matter of days.

1. Judge Leon in the DC District held the NSA spying program to be likely unconstitutional. (read about it and see the whole court opinion here)

2. Barack Obama’s NSA review panel recommended some significant scaling back of the spying program.

At best, unfortunately, this is just a good conversation starter without any liklihood of concrete results. At worst, it’s just smoke and mirrors designed to take your eyes off the ball.

Here’s the deal on each, and why the strategy must continue to be full steam ahead in the states to #NullifyNSA:


Judge Leon’s court opinion does nothing concrete, in practice. Nothing.

He “enjoined” the entire program, but “stayed” his own decision, pending appeal.

In layman’s terms, he put a stop to the program, but then put his own stop on hold. He then kicked the can down the road, handing it off to the next court to decide. In essence, he passed the buck.

Issuing an opinion that NSA mass surveillance is “constitutional” under the 4th Amendment would’ve made Leon a serious constitutional-crook, at best. But he still did the very least he could do – issued his opinion, but took no steps to stop the program, even temporarily, which he could have done.

More importantly, don’t expect the next court, or the Supreme Court, to actually have the opinion that mass NSA surveillance is unconstitutional and will need to stop. The odds of this happening are extremely low.

While it’s easy to disagree constitutionally with much of legal expert Orin Kerr’s understanding on the issue, he provides some great insight as to how the higher courts will view this case, and it doesn’t look good for those who want to see the NSA stopped. Even worse is legal expert, and national security hawk, Ben Wittes, who has some serious insight as to how the Supreme Court will act on this – here.

These are the most important “takeaways” from the recent court case:

A) NSA spying has not been stopped. It continues in full force, and
B) While it’s possible the higher courts will stop it, don’t count on it.


In a surprise move, the NSA review panel – which was filled with government insiders – actually advised Obama to strip the power to do mass surveillance in its current form. But there’s a big problem with that.

He won’t.

After the panel recommendations, he said this:

“It’s important to note that in all the reviews of this program that have been done, in fact, there have not been actual instances where it’s been alleged that the NSA in some ways acted inappropriately in the use of this data.”

Barack Obama believes that the NSA is NEVER acting inappropriately.

He’ll never stop the spying.

In other words, the USA Freedom Act, the bill in congress that many privacy advocates are putting all their time and energy into, is doomed as well.

If it even has a chance of getting past Dianne Feinstein, who is the powerful chair of the Senate Intelligence Committee, Obama supports the NSA doing what it’s doing, so you just can’t expect him to sign a bill to stop it.


And now, to sum it all up.

Bad news first. The courts, the review panel, congress – all efforts to pass bills like the USA Freedom Act – all these efforts are virtually doomed.

GOOD NEWS – There’s clarity in our path.

If you want something to happen, your only resort is the plan to #NullifyNSA and resist on a state and local level.


Take these steps today to help stop NSA spying in your state

1. Get the model 4th Amendment Protection Act for your state (pdf):

2. Contact your STATE representative/assemblyperson AND State Senator. Strongly, but respectfully, encourage them to introduce the act for your state. A phone call is much more powerful than an email. Or do both. Contact info HERE.

3. Join the coalition. Are you part of a grassroots group? Encourage your group’s leadership to sign on in support of the coalition here: http://offnow.org/coalition

4. Get Flyers to help spread the word!
Here: http://offnow.org/product/flyers-4th-amendment-protection-act/

Michael Boldin

The 10th Amendment

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