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US surveillance court reportedly rejected zero spying requests last year

94 points by obi1kenobi 10y ago

awinter-py 10y ago
right, because the FIS judges who say no get fired. this is survivor bias in action. Congress and law enforcement are behaving as if the core problem facing the legal system is a new one, 'how do you catch criminals on tor'. Pro-privacy activists are saying it's 'how do you engineer the social contract to prevent rebellion' (i.e. the same problem legal systems have always faced). In general, privacy rights and property rights are linked. It's not a coincidence that the brandeis paper which introduced privacy to american jurisprudence was phrased in the vocabulary of real estate & tresspass. It's no coincidence that large institutions that pay for things (home loan banks & health insurers) have an automatic right of tresspass in many cases. It will be interesting to see if erosion of information privacy leads to erosion of property rights. You can argue that increasing police seizures is already a symptom of this. Let's cross our fingers that at the point where property rights are at risk, courts (the non-secret ones) will start doing their job again and reverse the balance.
- nxzero 10y ago
  Any evidence of mass social engineering?
  - deleted 10y ago
    [deleted]
- schoen 10y ago
  > right, because the FIS judges who say no get fired. this is survivor bias in action. Any indication that judges have ever been "fired" from the FISA Court? https://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court#Composition https://en.wikipedia.org/wiki/United_States_Foreign_Intellig...
  - rhino369 10y ago
    Plus they are federal judges. Even if they could be fired (I see no mechanism for that), they are still federal district court judges for life.
  - awinter-py 10y ago
    The judges take turns in one week duty cycles (http://fas.org/irp/news/2013/07/fisc-leahy.pdf http://fas.org/irp/news/2013/07/fisc-leahy.pdf). One can assume DOJ is smart enough to avoid the judge who says no. Page 8 of the PDF is worth a read. The head judge of the FISC is claiming that non-government entities have the opportunity to be heard by the court because they can (1) refuse a court order which (2) triggers a contempt hearing if (3) the DOJ permits it.
    - schoen 10y ago
      > One can assume DOJ is smart enough to avoid the judge who says no. I can imagine that that happens to some extent, but it's quite a bit weaker than what you originally suggested (and maybe there are other factors that prevent or deter the applicants from exercising complete control over who reviews their applications).
      - awinter-py 10y ago
        Hmm, maybe. Given the court's secrecy and the general tendency of judges to defer to law enforcement on what constitutes an emergency, I assume there are cases where the gov't acts first and gets permission afterwards. If that's the case (and I recognize it's an if), and if every request is approved by the weak-willed judges (history suggests yes), then they have complete freedom to choose their judge.
dsacco 10y ago
Could we change the title to de-capitalize "ZERO"? It sounds like the sky is falling as presently written.
- BEEdwards 10y ago
  There is a secret court with secret interpretations of the law and it literally never has any problem with our governments request to spy, even on its own citizens. Not the sky, but the forth amendment is falling, the fifth too for that matter.
- dang 10y ago
  Definitely. Please see https://news.ycombinator.com/item?id=11607224 https://news.ycombinator.com/item?id=11607224.
morsch 10y ago
Also: "The FBI also reportedly sent 48,642 national security letters in 2015."
bediger4000 10y ago
Personally, I think that the FISA court is a travesty, and rejecting zero surveillance requests is just rubber stamping. But how would I refute the "Federal judges warrant rejection rates are very low because the law enforcement doesn't want to present questionable warrants in the first place" argument? It seems to me that a place to start is to ask where the FISA warrants get reviewed - in regular (non-terrorist) cases there's all kinds of warrant review and challenge and argument before a trial, but I'm not sure that kind of review happens with FISA warrants.
- ngdndvvcx 10y ago
  > But how would I refute the "Federal judges warrant rejection rates are very low because the law enforcement doesn't want to present questionable warrants in the first place" argument? Even if every LEO is trying their best to avoid filing questionable warrants, they will end up being mistaken far more than 0 out of 48,642 times. What's the point of having this oversight apparatus if they provide no apparent oversight whatsoever?
  - Godel_unicode 10y ago
    So many things wrong for such a short paragraph: "Reuters writes that the 1,457 requests made last year by the NSA and FBI were all approved" 1,457 < 48,642. > "Even if every LEO..." NSA != LEO. Do you believe their requests were not being made by lawyers with the relevant act open on their other monitor? > "no apparent oversight..." The court's previous rejection rate was .03%. .03% of 1457 is less than 1. IOW, this is the expected outcome even if no greater care was taken to write bullet-proof requests. Also, this: "The memo did reportedly show an marked increase in requests that were modified by the court before approval: 80 applications were changed, as opposed to 19 in 2014"
    - awinter-py 10y ago
      numerical issues aside, consider the paradox of unanimity: http://phys.org/news/2016-01-evidence-bad.html http://phys.org/news/2016-01-evidence-bad.html Regardless of domain, perfect agreement can indicate a problem.
forjirjfjjt 10y ago
American police state. Americans police state. anyone want to argue otherwise? American police state. People need to first accept the obvious truth. America is a corrupt nation of corrupt laws rules by a corrupt elite enforced by corrupt officers.
blisterpeanuts 10y ago
Good to know the FISA court is watching out for us. </sarcasm>
dang 10y ago
We changed the HN title to be that of the article. The submitted title ("US surveillance court rejected ZERO spying requests in 2015") broke the HN guidelines twice: first by rewriting the title to make it more misleading and linkbaity—the site rule calls strictly for making titles less so—and second by using all caps for emphasis. Please don't do that.
- obi1kenobi 10y ago
  OP here -- sorry about that. I'll keep that in mind in the future.
  - dang 10y ago
    Thanks!
- doekidjjd 10y ago
  Statist thug. American is a police state. Censor the truth. You must love to be subservient dog to the State.

94 points by obi1kenobi 10y ago

right, because the FIS judges who say no get fired. this is survivor bias in action. Congress and law enforcement are behaving as if the core problem facing the legal system is a new one, 'how do you catch criminals on tor'. Pro-privacy activists are saying it's 'how do you engineer the social contract to prevent rebellion' (i.e. the same problem legal systems have always faced). In general, privacy rights and property rights are linked. It's not a coincidence that the brandeis paper which introduced privacy to american jurisprudence was phrased in the vocabulary of real estate & tresspass. It's no coincidence that large institutions that pay for things (home loan banks & health insurers) have an automatic right of tresspass in many cases. It will be interesting to see if erosion of information privacy leads to erosion of property rights. You can argue that increasing police seizures is already a symptom of this. Let's cross our fingers that at the point where property rights are at risk, courts (the non-secret ones) will start doing their job again and reverse the balance.

nxzero 10y ago
Any evidence of mass social engineering?
- deleted 10y ago
  [deleted]
schoen 10y ago
> right, because the FIS judges who say no get fired. this is survivor bias in action. Any indication that judges have ever been "fired" from the FISA Court? https://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court#Composition https://en.wikipedia.org/wiki/United_States_Foreign_Intellig...
- rhino369 10y ago
  Plus they are federal judges. Even if they could be fired (I see no mechanism for that), they are still federal district court judges for life.
- awinter-py 10y ago
  The judges take turns in one week duty cycles (http://fas.org/irp/news/2013/07/fisc-leahy.pdf http://fas.org/irp/news/2013/07/fisc-leahy.pdf). One can assume DOJ is smart enough to avoid the judge who says no. Page 8 of the PDF is worth a read. The head judge of the FISC is claiming that non-government entities have the opportunity to be heard by the court because they can (1) refuse a court order which (2) triggers a contempt hearing if (3) the DOJ permits it.
  - schoen 10y ago
    > One can assume DOJ is smart enough to avoid the judge who says no. I can imagine that that happens to some extent, but it's quite a bit weaker than what you originally suggested (and maybe there are other factors that prevent or deter the applicants from exercising complete control over who reviews their applications).
    - awinter-py 10y ago
      Hmm, maybe. Given the court's secrecy and the general tendency of judges to defer to law enforcement on what constitutes an emergency, I assume there are cases where the gov't acts first and gets permission afterwards. If that's the case (and I recognize it's an if), and if every request is approved by the weak-willed judges (history suggests yes), then they have complete freedom to choose their judge.

dsacco 10y ago

Could we change the title to de-capitalize "ZERO"? It sounds like the sky is falling as presently written.

BEEdwards 10y ago
There is a secret court with secret interpretations of the law and it literally never has any problem with our governments request to spy, even on its own citizens. Not the sky, but the forth amendment is falling, the fifth too for that matter.
dang 10y ago
Definitely. Please see https://news.ycombinator.com/item?id=11607224 https://news.ycombinator.com/item?id=11607224.

morsch 10y ago

Also: "The FBI also reportedly sent 48,642 national security letters in 2015."

bediger4000 10y ago

Personally, I think that the FISA court is a travesty, and rejecting zero surveillance requests is just rubber stamping. But how would I refute the "Federal judges warrant rejection rates are very low because the law enforcement doesn't want to present questionable warrants in the first place" argument? It seems to me that a place to start is to ask where the FISA warrants get reviewed - in regular (non-terrorist) cases there's all kinds of warrant review and challenge and argument before a trial, but I'm not sure that kind of review happens with FISA warrants.

ngdndvvcx 10y ago
> But how would I refute the "Federal judges warrant rejection rates are very low because the law enforcement doesn't want to present questionable warrants in the first place" argument? Even if every LEO is trying their best to avoid filing questionable warrants, they will end up being mistaken far more than 0 out of 48,642 times. What's the point of having this oversight apparatus if they provide no apparent oversight whatsoever?
- Godel_unicode 10y ago
  So many things wrong for such a short paragraph: "Reuters writes that the 1,457 requests made last year by the NSA and FBI were all approved" 1,457 < 48,642. > "Even if every LEO..." NSA != LEO. Do you believe their requests were not being made by lawyers with the relevant act open on their other monitor? > "no apparent oversight..." The court's previous rejection rate was .03%. .03% of 1457 is less than 1. IOW, this is the expected outcome even if no greater care was taken to write bullet-proof requests. Also, this: "The memo did reportedly show an marked increase in requests that were modified by the court before approval: 80 applications were changed, as opposed to 19 in 2014"
  - awinter-py 10y ago
    numerical issues aside, consider the paradox of unanimity: http://phys.org/news/2016-01-evidence-bad.html http://phys.org/news/2016-01-evidence-bad.html Regardless of domain, perfect agreement can indicate a problem.

forjirjfjjt 10y ago

American police state. Americans police state. anyone want to argue otherwise? American police state. People need to first accept the obvious truth. America is a corrupt nation of corrupt laws rules by a corrupt elite enforced by corrupt officers.

blisterpeanuts 10y ago

Good to know the FISA court is watching out for us. </sarcasm>

dang 10y ago

We changed the HN title to be that of the article. The submitted title ("US surveillance court rejected ZERO spying requests in 2015") broke the HN guidelines twice: first by rewriting the title to make it more misleading and linkbaity—the site rule calls strictly for making titles less so—and second by using all caps for emphasis. Please don't do that.

obi1kenobi 10y ago
OP here -- sorry about that. I'll keep that in mind in the future.
- dang 10y ago
  Thanks!
doekidjjd 10y ago
Statist thug. American is a police state. Censor the truth. You must love to be subservient dog to the State.