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>Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical sear

>Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US. The Supreme Court has held that the Fourth Amendment generally requires law enforcement agencies to obtain a warrant before searching cell phone data, but there is an exception for “exigent circumstances,” which is supposed to apply only to extreme situations in which lives are in danger. It seems like a clear cut abuse of power. These aren't exigent circumstances, they're protests, and besides that it's not a federal problem. It seems like the 4th amendment doesn't have any power any more.

2bitencryption 6y ago
I feel like programmers/engineers/technical-minded people have an easier time being terrified at this kind of "exception" for "exigent circumtances". Because that type of person is well aware that an "exception to a rule" really just means the rule is formally worthless, since it provides no guarantee whatsoever. or maybe I'm just projecting how I think.
- roughly 6y ago
  You'd think this would generalize, but ask anyone who does security or has more than 10 minutes of social science education about programmers' general ability to ignore side effects and unintentional consequences...
- gruez 6y ago
  > Because that type of person is well aware that an "exception to a rule" really just means the rule is formally worthless, since it provides no guarantee whatsoever. If you think about it, rules themselves provide no guarantee whatsoever. They're only as strong as the institutions (aka. people) enforcing them. Some text in a book somewhere provides zero guarantee that some cop isn't going to assault you for talking back at him, or some general isn't going to turn the country into a dictatorship.
  - swiley 6y ago
    Learning about foreign governments (like British parliament) makes this a lot more obvious IMO. It seems like at a certain level formal rules start to become a lot less important than tradition.
    - wiml 6y ago
      I've heard it put more pithily, but, the practice of following the rules, obeying the laws, is itself no more than a tradition.
- jrumbut 6y ago
  Yeah, I often thing that way too, and I think this mindset in programming (and also financial engineering) of taking any little gap and maximally exploiting it is very hard to deal with legislatively. It's hard enough to make a web form secure, trying to do the same with emergency response legislation, when the nature of emergencies is that they often take unforeseeable forms, is an intractable problem. I've been beating this drum quite a bit lately and I understand this feels impossible from where we are, it feels impossible to me too, but the problem we really have to solve is figuring out a way to trust and be trustworthy when given certain responsibilities. Not just for emergency powers, for everything. We don't have the technology to eliminate the need for trust, not even close. We have to work on constraining the threat model a little bit.
deleted 6y ago
[deleted]
- strombofulous 6y ago
  All major nations have many (including the US)
bladegash 6y ago
This journalist has absolutely no idea what they are talking about. Executive Order 12333 grants authority to the FBI (among others, with few exceptions), specifically as it relates to foreign intelligence and counterintelligence (EO 12333 1.7(g)(1)). I'm not even sure where they are getting the "unconsented physical searches" and "physical surveillance" line from. EO 12333 specifically states, "Elements of the Intelligence Community are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director." It then goes on to infer the FBI is the only one who can conduct unconsented physical searches and physical surveillance on United States persons, except in specific circumstances. In other words...EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations into the previously mentioned activities; and they are the only ones able to do so except in specific circumstances. Lastly, the protests in Portland would not be considered as part of literally any of the FBI's authorities in EO 12333, it would be from their authorities related to conduct of criminal investigations, which would require a warrant or consent to a search. I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing.
- animationwill 6y ago
  >> This journalist has absolutely no idea what they are talking about. >> I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing. I'm starting to suspect that half of articles today are purposeful misinformation that fits a narrative, while the other half is lazy reporting and might even rely on the misinformation as a source, just perpetuating it. I've never read NYbooks.com before, but is a book reviewer really going to give me accurate insight into legal interpretation? Nope...
- boomboomsubban 6y ago
  >I'm not even sure where they are getting the "unconsented physical searches" and "physical surveillance" line from >EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations You don't understand why they're saying they can do exactly what you say they can do. The only hiccup you've introduced is that you don't think the Portland protests would count as foreign intelligence or counterintelligence, but they would only need a very weak link to some foreign agent to allow wide scale surveillance. Hell, a Canadian protester would fulfill the criteria.
lawnchair_larry 6y ago
No, they’re not protests. Not after dark.
jb775 6y ago
Insert "Fiery but Mostly Peaceful Protest" CNN screenshot here
raxxorrax 6y ago
National security is used around the world to undermine basic laws and constitutions. This trend has to stop. Best start would be yesterday. Sensible constitutions have protection of privacy for a reason. Now we have old and slow people in power that sell it for a bit of profit.
- GordonS 6y ago
  Yes, this is one of the areas where western democracies have gone completely off the rails. But how can it stop? It doesn't seem to matter how moderate and liberal the head of government appears to be, they condone this awful behaviour with the magical incantation: "national security". Governments and the media are adept at spreading FUD by controlling negative messaging around terrorism, organised crime, communinism, the Chinese, the Russians, or whoever the boogeyman de jour is. A huge segment of the populace is is so scared they convinced that they can trust the government and the security services. I just don't see how this can end.
stjohnswarts 6y ago
I completely agree agree with you on the 4th, it has become persona non grata to both parties. Republicans and Democrats are beginning to see the Bill of Rights as more "suggestions" than the actual foundation of our system of laws. I don't even think they consider it a "living Constitution" anymore and just consider it fodder for election speeches. Do not blame only Republicans for this, the Dems own it as well. Obama kept up mass surveillance and the unPatriotic Act as well as did Bush. They're all complicit. Sure Dems have a better record on progressive social issues, and some Constitutional "features" but so do Republicans with gun rights and religious rights. However both are ignore fundamental aspects of it that don't fit their narrative.

2bitencryption 6y ago

I feel like programmers/engineers/technical-minded people have an easier time being terrified at this kind of "exception" for "exigent circumtances". Because that type of person is well aware that an "exception to a rule" really just means the rule is formally worthless, since it provides no guarantee whatsoever. or maybe I'm just projecting how I think.

roughly 6y ago
You'd think this would generalize, but ask anyone who does security or has more than 10 minutes of social science education about programmers' general ability to ignore side effects and unintentional consequences...
gruez 6y ago
> Because that type of person is well aware that an "exception to a rule" really just means the rule is formally worthless, since it provides no guarantee whatsoever. If you think about it, rules themselves provide no guarantee whatsoever. They're only as strong as the institutions (aka. people) enforcing them. Some text in a book somewhere provides zero guarantee that some cop isn't going to assault you for talking back at him, or some general isn't going to turn the country into a dictatorship.
- swiley 6y ago
  Learning about foreign governments (like British parliament) makes this a lot more obvious IMO. It seems like at a certain level formal rules start to become a lot less important than tradition.
  - wiml 6y ago
    I've heard it put more pithily, but, the practice of following the rules, obeying the laws, is itself no more than a tradition.
jrumbut 6y ago
Yeah, I often thing that way too, and I think this mindset in programming (and also financial engineering) of taking any little gap and maximally exploiting it is very hard to deal with legislatively. It's hard enough to make a web form secure, trying to do the same with emergency response legislation, when the nature of emergencies is that they often take unforeseeable forms, is an intractable problem. I've been beating this drum quite a bit lately and I understand this feels impossible from where we are, it feels impossible to me too, but the problem we really have to solve is figuring out a way to trust and be trustworthy when given certain responsibilities. Not just for emergency powers, for everything. We don't have the technology to eliminate the need for trust, not even close. We have to work on constraining the threat model a little bit.

deleted 6y ago

[deleted]

strombofulous 6y ago
All major nations have many (including the US)

bladegash 6y ago

This journalist has absolutely no idea what they are talking about. Executive Order 12333 grants authority to the FBI (among others, with few exceptions), specifically as it relates to foreign intelligence and counterintelligence (EO 12333 1.7(g)(1)). I'm not even sure where they are getting the "unconsented physical searches" and "physical surveillance" line from. EO 12333 specifically states, "Elements of the Intelligence Community are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director." It then goes on to infer the FBI is the only one who can conduct unconsented physical searches and physical surveillance on United States persons, except in specific circumstances. In other words...EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations into the previously mentioned activities; and they are the only ones able to do so except in specific circumstances. Lastly, the protests in Portland would not be considered as part of literally any of the FBI's authorities in EO 12333, it would be from their authorities related to conduct of criminal investigations, which would require a warrant or consent to a search. I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing.

animationwill 6y ago
>> This journalist has absolutely no idea what they are talking about. >> I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing. I'm starting to suspect that half of articles today are purposeful misinformation that fits a narrative, while the other half is lazy reporting and might even rely on the misinformation as a source, just perpetuating it. I've never read NYbooks.com before, but is a book reviewer really going to give me accurate insight into legal interpretation? Nope...
boomboomsubban 6y ago
>I'm not even sure where they are getting the "unconsented physical searches" and "physical surveillance" line from >EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations You don't understand why they're saying they can do exactly what you say they can do. The only hiccup you've introduced is that you don't think the Portland protests would count as foreign intelligence or counterintelligence, but they would only need a very weak link to some foreign agent to allow wide scale surveillance. Hell, a Canadian protester would fulfill the criteria.

lawnchair_larry 6y ago

No, they’re not protests. Not after dark.

jb775 6y ago

Insert "Fiery but Mostly Peaceful Protest" CNN screenshot here

raxxorrax 6y ago

National security is used around the world to undermine basic laws and constitutions. This trend has to stop. Best start would be yesterday. Sensible constitutions have protection of privacy for a reason. Now we have old and slow people in power that sell it for a bit of profit.

GordonS 6y ago
Yes, this is one of the areas where western democracies have gone completely off the rails. But how can it stop? It doesn't seem to matter how moderate and liberal the head of government appears to be, they condone this awful behaviour with the magical incantation: "national security". Governments and the media are adept at spreading FUD by controlling negative messaging around terrorism, organised crime, communinism, the Chinese, the Russians, or whoever the boogeyman de jour is. A huge segment of the populace is is so scared they convinced that they can trust the government and the security services. I just don't see how this can end.

stjohnswarts 6y ago

I completely agree agree with you on the 4th, it has become persona non grata to both parties. Republicans and Democrats are beginning to see the Bill of Rights as more "suggestions" than the actual foundation of our system of laws. I don't even think they consider it a "living Constitution" anymore and just consider it fodder for election speeches. Do not blame only Republicans for this, the Dems own it as well. Obama kept up mass surveillance and the unPatriotic Act as well as did Bush. They're all complicit. Sure Dems have a better record on progressive social issues, and some Constitutional "features" but so do Republicans with gun rights and religious rights. However both are ignore fundamental aspects of it that don't fit their narrative.