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Errr, reading the actual decision, i don't see a lot of support for the EFF's claims. It seems pretty cherry picked. In fact it clearly states they can only re

Errr, reading the actual decision, i don't see a lot of support for the EFF's claims. It seems pretty cherry picked. In fact it clearly states they can only retain stuff long term if the DOJ notifies them explicitly that they have a continuing litigation/preservation hold necessity (which is usually not the DOJ doing it,but say, a civil lawsuit that carries with it preservation obligations). It also makes further clear that in all cases, the only people with access to most of any retained data is system administrators, not investigators, and that it can't be used for investigative purposes. It does say general querying is allowed, but only people explicit 702 access rights are the ones who must be making such queries, or making such decisions. In all cases all records of who accessesd what with what query terms and their access level are explicitly logged, etc. It also explicitly states that information acquired under section 702 will not be introduced as evidence against a person in a criminal proceeding, without 1. Explicit approval of the attorney general 2. in criminal cases related to national security crimes In any case, this is not new, this viewpoint is something going back to FISC precedent from 2002. So it's not like this just happened. Additionally, the statute is pretty clear here. It says: " (h) “Minimization procedures”, with respect to electronic surveillance, means— ... (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and" So again, nothing new here, this has been law for quite a while. In short, i may hate a lot of things about FISA/FISC/etc, but i think the EFF is stretching to say this is a new problem, or to blame the court for it.

tacos 11y ago
Why is this being downvoted without any attempt at refutation? When I dug in I came to similar conclusions.
- guelo 11y ago
  "Please resist commenting about being downvoted. It never does any good, and it makes boring reading." https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
  - deleted 11y ago
    [deleted]
  - tacos 11y ago
    I'm familiar with policy. With my comment I started the interesting discussion you are now reading. The original comment (not mine) was buried and greyed out at the time I pointed out the improper downvoting. I felt it deserved to be read and responded to.
chishaku 11y ago
From the article: "____Once it has communications in its custody, those limitations no longer apply____ and the government can troll through it for whatever law enforcement purpose it wants without having to worry about getting a pesky warrant." (emphasis mine) You're not addressing this which I think is the point. The relevant section from the ruling's conclusion: "The government shall promptly submit in writing a report concerning each instance after December 4, 2015, in which FBI personnel receive and review Section 702-acquired information that the FBI identifies as concerning a United States person in response to a query that is not designed to find and extract foreign intelligence information. The report should include a detailed description of the information at issue and the manner in which it has been or will be used for analytical, investigative, or evidentiary purposes. It shall also identify the query terms used to elicit the information and provide the FBI's basis for concluding that the query is consistent with the applicable minimization procedures." In other words, the FBI can query for data related to US persons without a warrant and justify it later with a report to the FISC.
- DannyBee 11y ago
  ""____Once it has communications in its custody, those limitations no longer apply____ and the government can troll through it for whatever law enforcement purpose it wants without having to worry about getting a pesky warrant." (emphasis mine)" Except, I did: This is, as i pointed out, exactly what the statute allows and has been allowed since 2002! Again, see In Re: Sealed Case, 310 F.3d 717 (F.I.S.C. 2002) which makes very clear this is the case: "The minimization procedures allow, however, the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes. See 50 U.S.C. § 1801(h) (3). " This isn't new by a longshot, and it's been okay'd by other courts other than this one, because that's what the statute says. In fact, In Re Sealed case came about, because the FISA court tried to stop what the EFF is complaining about, and the government appealed. That is, their decision was "you can't use this for ordinary crimes". The government appealed, the reviewing court said fisa must allow them to use it for what they want, as per the statute. So yeah, blaming the FISA court is silly, since they tried to stop this once already. And calling this new or news is 14 years too late.
zaroth 11y ago
I think they are blaming the court for finding the statute you quoted is constitutional, when they believe it clearly should not be. Warrantless mass surveillance is bad enough for the special purpose of national security. It's obvious they would never be allowed to perform the same exact wiretaps directly for use in non-national security cases. So why is the obvious loophole a get-out-of-Constitution free card? Information aquired under 702 may not be introduced.... Exactly, we call this parallel construction. Those limits on retention you mention, which don't apply to evidence of a crime which has been, is being, or could possibly be committed (aka "about")... are those the same limits FISA just recently blasted NSA for not following and hiding from the court that they weren't following? [1] They are not saying this is a new problem. This is a very old problem and also a very big problem. And for finding this constitutional, the only one to blame is the court. [1] - http://www.politico.com/blogs/under-the-radar/2016/04/government-surveillance-fbi-nsa-violations-222162 http://www.politico.com/blogs/under-the-radar/2016/04/govern...
- rayiner 11y ago
  > It's obvious they would never be allowed to perform the same exact wiretaps directly for use in non-national security cases. There is no "national security" exception to the 4th amendment. At least in theory, these are communications that wouldn't require a warrant but for FISA, because they involve communications with foreign non-citizens.
  - zaroth 11y ago
    It's hard to keep up -- my understanding is "meta-data" is mass collected for Americans talking to Americans, and does this mean it can, and we will see that data being bulk mined for "crimes" just by entering someone's name? Or are you saying that this part isn't overseen by FISA?
- DannyBee 11y ago
  " think they are blaming the court for finding the statute you quoted is constitutional," But they did that many years ago, yet eff acts as if this is new.
guelo 11y ago
You are not refuting EFF's claim that the FBI can use the NSA's "terrorism" data for common criminal cases. All you are saying is that there are procedures that the FBI has to go through and that it's not a new thing.
- DannyBee 11y ago
  I'm not refuting it because it's not new. The FISC court decided that back in 2002. See In Re Sealed case: 310 F.3d 717: http://law.justia.com/cases/federal/appellate-courts/F3/310/717/495663/ http://law.justia.com/cases/federal/appellate-courts/F3/310/... " The "wall" emerges from the court's implicit interpretation of FISA. The court apparently believes it can approve applications for electronic surveillance only if the government's objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. " ... The minimization procedures allow, however, the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes. See 50 U.S.C. § 1801(h) (3). Therefore, if through interceptions or searches, evidence of "a serious crime totally unrelated to intelligence matters" is incidentally acquired, the evidence is "not ... required to be destroyed." H. REP. at 62 (emphasis added)." (note the house report cite: This is in fact, what congress intended) Again, this came about because the FISA court tried to put a stop to these shenanigans back in 2002 and then the reviewing court reversed them. So now they let it go, as they are required to.

tacos 11y ago

Why is this being downvoted without any attempt at refutation? When I dug in I came to similar conclusions.

guelo 11y ago
"Please resist commenting about being downvoted. It never does any good, and it makes boring reading." https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
- deleted 11y ago
  [deleted]
- tacos 11y ago
  I'm familiar with policy. With my comment I started the interesting discussion you are now reading. The original comment (not mine) was buried and greyed out at the time I pointed out the improper downvoting. I felt it deserved to be read and responded to.

chishaku 11y ago

From the article: "____Once it has communications in its custody, those limitations no longer apply____ and the government can troll through it for whatever law enforcement purpose it wants without having to worry about getting a pesky warrant." (emphasis mine) You're not addressing this which I think is the point. The relevant section from the ruling's conclusion: "The government shall promptly submit in writing a report concerning each instance after December 4, 2015, in which FBI personnel receive and review Section 702-acquired information that the FBI identifies as concerning a United States person in response to a query that is not designed to find and extract foreign intelligence information. The report should include a detailed description of the information at issue and the manner in which it has been or will be used for analytical, investigative, or evidentiary purposes. It shall also identify the query terms used to elicit the information and provide the FBI's basis for concluding that the query is consistent with the applicable minimization procedures." In other words, the FBI can query for data related to US persons without a warrant and justify it later with a report to the FISC.

DannyBee 11y ago
""____Once it has communications in its custody, those limitations no longer apply____ and the government can troll through it for whatever law enforcement purpose it wants without having to worry about getting a pesky warrant." (emphasis mine)" Except, I did: This is, as i pointed out, exactly what the statute allows and has been allowed since 2002! Again, see In Re: Sealed Case, 310 F.3d 717 (F.I.S.C. 2002) which makes very clear this is the case: "The minimization procedures allow, however, the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes. See 50 U.S.C. § 1801(h) (3). " This isn't new by a longshot, and it's been okay'd by other courts other than this one, because that's what the statute says. In fact, In Re Sealed case came about, because the FISA court tried to stop what the EFF is complaining about, and the government appealed. That is, their decision was "you can't use this for ordinary crimes". The government appealed, the reviewing court said fisa must allow them to use it for what they want, as per the statute. So yeah, blaming the FISA court is silly, since they tried to stop this once already. And calling this new or news is 14 years too late.

zaroth 11y ago

I think they are blaming the court for finding the statute you quoted is constitutional, when they believe it clearly should not be. Warrantless mass surveillance is bad enough for the special purpose of national security. It's obvious they would never be allowed to perform the same exact wiretaps directly for use in non-national security cases. So why is the obvious loophole a get-out-of-Constitution free card? Information aquired under 702 may not be introduced.... Exactly, we call this parallel construction. Those limits on retention you mention, which don't apply to evidence of a crime which has been, is being, or could possibly be committed (aka "about")... are those the same limits FISA just recently blasted NSA for not following and hiding from the court that they weren't following? [1] They are not saying this is a new problem. This is a very old problem and also a very big problem. And for finding this constitutional, the only one to blame is the court. [1] - http://www.politico.com/blogs/under-the-radar/2016/04/government-surveillance-fbi-nsa-violations-222162 http://www.politico.com/blogs/under-the-radar/2016/04/govern...

rayiner 11y ago
> It's obvious they would never be allowed to perform the same exact wiretaps directly for use in non-national security cases. There is no "national security" exception to the 4th amendment. At least in theory, these are communications that wouldn't require a warrant but for FISA, because they involve communications with foreign non-citizens.
- zaroth 11y ago
  It's hard to keep up -- my understanding is "meta-data" is mass collected for Americans talking to Americans, and does this mean it can, and we will see that data being bulk mined for "crimes" just by entering someone's name? Or are you saying that this part isn't overseen by FISA?
DannyBee 11y ago
" think they are blaming the court for finding the statute you quoted is constitutional," But they did that many years ago, yet eff acts as if this is new.

guelo 11y ago

You are not refuting EFF's claim that the FBI can use the NSA's "terrorism" data for common criminal cases. All you are saying is that there are procedures that the FBI has to go through and that it's not a new thing.

DannyBee 11y ago
I'm not refuting it because it's not new. The FISC court decided that back in 2002. See In Re Sealed case: 310 F.3d 717: http://law.justia.com/cases/federal/appellate-courts/F3/310/717/495663/ http://law.justia.com/cases/federal/appellate-courts/F3/310/... " The "wall" emerges from the court's implicit interpretation of FISA. The court apparently believes it can approve applications for electronic surveillance only if the government's objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. " ... The minimization procedures allow, however, the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes. See 50 U.S.C. § 1801(h) (3). Therefore, if through interceptions or searches, evidence of "a serious crime totally unrelated to intelligence matters" is incidentally acquired, the evidence is "not ... required to be destroyed." H. REP. at 62 (emphasis added)." (note the house report cite: This is in fact, what congress intended) Again, this came about because the FISA court tried to put a stop to these shenanigans back in 2002 and then the reviewing court reversed them. So now they let it go, as they are required to.