5 ms·

> the FISA court is that it's not about surveillance for the purpose of normal criminal prosecutions It is used for domestic criminal purposes, as long as the

by pdkl95 8y ago

> the FISA court is that it's not about surveillance for the purpose of normal criminal prosecutions It is used for domestic criminal purposes, as long as the court only sees a parallel construction[1] that conceals that the evidence is the fruit of the poisonous tree. [1] https://en.wikipedia.org/wiki/Parallel_construction https://en.wikipedia.org/wiki/Parallel_construction

GVIrish 8y ago
Yes, that is a very important loophole to bring up here. On one hand, parallel construction can be used in order to not compromise sensitive sources and methods. If you found out about a spy ring because you compromised a spy's phone, you might not want that revealed, so a different path to the evidence is constructed to conceal that method. But it of course can be used in a nefarious manner to launder evidence gained on someone illegally. So maybe in the course of a nat'l security investigation the feds stumble conversations of a drug trafficker, then use parallel construction to create a paper trail that would make it seem like the knowledge about the drug trafficker was obtained through normal channels. That is absolutely an area that requires more rigorous controls and oversight, although I don't know how often FISA warrants have been exploited in that matter. Could be mostly federal law enforcement eavesdropping with stingrays.
- michaelmrose 8y ago
  Parallel construction doesn't have nefarious uses it is inherently nefarious. It is an end run around the law they are supposed to be upholding. In actual practice you shouldn't perform broad illegal surveillance of your populace and if you do you shouldn't be able to use it in court without revealing your sources. This fundamentally violates the rights of the accused.
  - TheCoelacanth 8y ago
    Parallel construction is a euphemism for perjury committed by law enforcement.
    - michaelmrose 8y ago
      This should be prosecuted as such instead of concealed.
jjoonathan 8y ago
Data Laundering
WillPostForFood 8y ago
You can't get a FISA warrant for a purely domestic criminal case, though you can use data discovered in a domestic criminal case. There used to better protections, requiring the gathering foreign intelligence must be the primary purpose of the warrant, but it was changed in 2008 to, "(v) a significant purpose of the acquisition is to obtain foreign intelligence information;". I know people are going to call fallacy, but FISA was a classic slippery slope.
- roenxi 8y ago
  I'm going off the wiki page for thee commerce clause [1] here. The Supreme court interpreted "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." as including "apply[ing] national quotas to wheat grown on one's own land, for one's own consumption". This isn't a new observation unique to todays conversation (I'm sure it has been bought up from the establishment of a secret court) but you can't claim what you are claiming unless you happen to be a FISA court judge. We don't know what this court is doing. We don't decide what these words mean. The dictionary doesn't decide what these words mean. The judge decides what the words mean. [1] https://en.wikipedia.org/wiki/Commerce_Clause#Dormant_Commerce_Clause_jurisprudence https://en.wikipedia.org/wiki/Commerce_Clause#Dormant_Commer...
  - WillPostForFood 8y ago
    I can say what I'm saying because that's explicitly what the law says, and it has been litigated and adjudicated. Maybe I should have been more precise and have said you can't legally get a FISA warrant for a purely domestic criminal case. The only way it comes into play for a purely domestic case is if the FBI/DOJ lies to the judge, or the judge is corrupt. And I'm sure that's happened, and it is in part a consequence of the secrecy that shrouds the court.
    - roenxi 8y ago
      > that's explicitly what the law says The very large number of lawyers and justices are employed to argue extensively about the meaning and interpretation of the law. You are interpreting the law here. You cannot know if your interpretation aligns with FISC, because the proceedings are not public. By the way, while looking up names for this comment I came up with https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Court#Secret_law https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveilla... . So it looks like the FISC court is doing exactly this by getting creative with what a "special-need" is.

by pdkl95 8y ago

GVIrish 8y ago

Yes, that is a very important loophole to bring up here. On one hand, parallel construction can be used in order to not compromise sensitive sources and methods. If you found out about a spy ring because you compromised a spy's phone, you might not want that revealed, so a different path to the evidence is constructed to conceal that method. But it of course can be used in a nefarious manner to launder evidence gained on someone illegally. So maybe in the course of a nat'l security investigation the feds stumble conversations of a drug trafficker, then use parallel construction to create a paper trail that would make it seem like the knowledge about the drug trafficker was obtained through normal channels. That is absolutely an area that requires more rigorous controls and oversight, although I don't know how often FISA warrants have been exploited in that matter. Could be mostly federal law enforcement eavesdropping with stingrays.

michaelmrose 8y ago
Parallel construction doesn't have nefarious uses it is inherently nefarious. It is an end run around the law they are supposed to be upholding. In actual practice you shouldn't perform broad illegal surveillance of your populace and if you do you shouldn't be able to use it in court without revealing your sources. This fundamentally violates the rights of the accused.
- TheCoelacanth 8y ago
  Parallel construction is a euphemism for perjury committed by law enforcement.
  - michaelmrose 8y ago
    This should be prosecuted as such instead of concealed.

jjoonathan 8y ago

Data Laundering

WillPostForFood 8y ago

You can't get a FISA warrant for a purely domestic criminal case, though you can use data discovered in a domestic criminal case. There used to better protections, requiring the gathering foreign intelligence must be the primary purpose of the warrant, but it was changed in 2008 to, "(v) a significant purpose of the acquisition is to obtain foreign intelligence information;". I know people are going to call fallacy, but FISA was a classic slippery slope.

roenxi 8y ago
I'm going off the wiki page for thee commerce clause [1] here. The Supreme court interpreted "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." as including "apply[ing] national quotas to wheat grown on one's own land, for one's own consumption". This isn't a new observation unique to todays conversation (I'm sure it has been bought up from the establishment of a secret court) but you can't claim what you are claiming unless you happen to be a FISA court judge. We don't know what this court is doing. We don't decide what these words mean. The dictionary doesn't decide what these words mean. The judge decides what the words mean. [1] https://en.wikipedia.org/wiki/Commerce_Clause#Dormant_Commerce_Clause_jurisprudence https://en.wikipedia.org/wiki/Commerce_Clause#Dormant_Commer...
- WillPostForFood 8y ago
  I can say what I'm saying because that's explicitly what the law says, and it has been litigated and adjudicated. Maybe I should have been more precise and have said you can't legally get a FISA warrant for a purely domestic criminal case. The only way it comes into play for a purely domestic case is if the FBI/DOJ lies to the judge, or the judge is corrupt. And I'm sure that's happened, and it is in part a consequence of the secrecy that shrouds the court.
  - roenxi 8y ago
    > that's explicitly what the law says The very large number of lawyers and justices are employed to argue extensively about the meaning and interpretation of the law. You are interpreting the law here. You cannot know if your interpretation aligns with FISC, because the proceedings are not public. By the way, while looking up names for this comment I came up with https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Court#Secret_law https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveilla... . So it looks like the FISC court is doing exactly this by getting creative with what a "special-need" is.