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In brief, the law allows the government to get secret FISA court orders—orders that do not require probable cause like regular warrants—for any emails or phone

In brief, the law allows the government to get secret FISA court orders—orders that do not require probable cause like regular warrants—for any emails or phone calls going to and from overseas. Is it somehow shocking that a probable cause standard doesn't apply to national security intercepts of cross-border communication? Customs doesn't need a warrant to search your bags at the border, either. The key point of FISA is not to legalize spying on communications among foreign nationals or between foreign nationals and Americans. Such spying has been considered part of the Executive's national security authority for decades. The key point of FISA is to ensure that intercepts between Americans that are subject to Fourth Amendment protections are avoided by design and deleted when discovered. Congress couldn't obligate the Executive to get an "Army Court" order before ordering a division to take a city. There's a little more sense to the obligation here, since they're just as responsible as any other branch of the government for protecting Americans' Constitutional rights. But these orders aren't meant to act as warrants: They're oversight tools.

HistoryInAction 14y ago
More specifically, they're oversight tools set up in 2006, following the awareness of the Bush Administration's use of warrentless wiretaps. The FISA revisions were to extend the flexibility of judges who were already allowed to retroactively provide legal permission up to 48 hours after the initial wiretapping began and approved over 95% of the wiretaps requested. The Bush Administration simply refused to go through even that rubberstamp process. I was an intern in the House office where the initial compromise that became this bill was proposed, even if it was later named for a much more senior Congressman. The FISA deal was a small retraction following a huge jump forward in intrusive government powers, so I'm proud to be supporting EFF's efforts to push privacy forward as much as possible, in light of the PATRIOT Act's overreach and similar during the past decade.
- twoodfin 14y ago
  So do you think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo? Do you think the Constitution requires one?
  - HistoryInAction 14y ago
    I'm not a lawyer :) Sen. Paul argues an absolutist position on the Fourth Amendment, that any sort of search/seizure of information involving US citizens requires a warrant. Do I agree? I'm certainly favorable to the interpretation of the Fourth. However, my larger concern is the lack of oversight, even by the so-called "Gang of Eight" re: Intelligence committees: http://en.wikipedia.org/wiki/Gang_of_Eight http://en.wikipedia.org/wiki/Gang_of_Eight The government, under both the Bush and Obama administrations, has clearly engaged on systematic "overcollection," or going beyond even the allowable actions by the FISA law. It was a large scandal leading to the retroactive approval by congress through these FISA amendments in 2006: http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_co... So I don't think the right question to ask is whether or not probably cause is the correct standard to use since it doesn't appear that government actors follow the assigned standard anyway. The question is of oversight and the reasonably effective ability to challenge such government behavior, as contrasted with the case of Nicholas Merrill and his NSL letter.
    - twoodfin 14y ago
      I'm asking about the Fourth Amendment issues because I think they're irrelevant, but most people who discuss this issue seem to think they're paramount. Really, this is a separation-of-powers fight: How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying? The President has no obligation to obey laws that impinge on his Constitutional authority. Or to put it more gently, he's generally free to interpret those laws as broadly or narrowly as necessary to avoid that impingement. So I can't get too worked up about the "systematic overcollection" argument. Unless you make it "systematic, deliberate overcollection of purely domestic communications". I am disturbed that the EFF seems to think it's advantageous to blur the distinction (using terms like "probable cause" and "warrants") and make it seem as if these programs are prima facie targeted at domestic communication and unconstitutional.
      - HistoryInAction 14y ago
        Not only am I not a lawyer, but I'm especially not a constitutional lawyer. It seems that you're right that the general concern is about Americans who communicate with targets abroad, not purely domestic communications. However, I recall discussion in the office about chilling effects re: international communications that would harm US academics' abilities to collaborate abroad, which is the only example I remember at this distance. The original article: http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all&_r=0 http://www.nytimes.com/2005/12/16/politics/16program.html?pa... My interpretation of the EFF is that while intent matters, and the intent of existing programs is to primarily target internationally, without oversight, there's no distinction between international and domestic wiretapping. We have little sense of what wiretapping does go on because it's all overseen by secret FISA courts. Here's the '09 report on domestic overcollection: http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=all http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=a... I think the EFF's point is: what protections does a US citizen have against being caught up in these wiretaps, considering the known flaws of the program and its operators? That's where the Fourth Amendment comes into play and questions over probably cause and warrants.
jellicle 14y ago
> Is it somehow shocking that a probable cause standard doesn't apply to national security intercepts of cross-border communication? USPS regulations prohibit reading of letter-mail crossing the border unless a warrant has been obtained. So the answer is yes, it's shocking. Your email has fewer privacy protections than the same email printed out and mailed. > The key point of FISA is not to legalize spying on communications among foreign nationals or between foreign nationals and Americans. You may have entirely missed the debate a few years ago about amnesty for telecoms who participated in spying on Americans, directly against the law, but, well, that's on you. In fact FISA at its last renewal was expressly and completely about legalizing spying on domestic communications between Americans. Which it did.
- tptacek 14y ago
  Customs can search all incoming and outgoing USPS mail. The statute says so explicitly, and mentions the USPS directly. I think you might be thinking of state borders.
  - jellicle 14y ago
    CBP enforces laws about what physical things can cross the border. CBP doesn't spy on the content of first-class letters, and cannot, without a warrant.
    - justinschuh 14y ago
      I'm sorry, but you have no idea what you're talking about: 107 H.R. 3009 http://www.govtrack.us/congress/bills/107/hr3009/text http://www.govtrack.us/congress/bills/107/hr3009/text : SEC. 344. BORDER SEARCH AUTHORITY FOR CERTAIN CONTRABAND IN OUTBOUND MAIL. (a) IN GENERAL- The Tariff Act of 1930 is amended by inserting after section 582 the following: SEC. 583. EXAMINATION OF OUTBOUND MAIL. (a) EXAMINATION- (1) IN GENERAL- For purposes of ensuring compliance with the Customs laws of the United States and other laws enforced by the Customs Service, including the provisions of law described in paragraph (2), a Customs officer may, subject to the provisions of this section, stop and search at the border, without a search warrant, mail of domestic origin transmitted for export by the United States Postal Service and foreign mail transiting the United States that is being imported or exported by the United States Postal Service.

HistoryInAction 14y ago

More specifically, they're oversight tools set up in 2006, following the awareness of the Bush Administration's use of warrentless wiretaps. The FISA revisions were to extend the flexibility of judges who were already allowed to retroactively provide legal permission up to 48 hours after the initial wiretapping began and approved over 95% of the wiretaps requested. The Bush Administration simply refused to go through even that rubberstamp process. I was an intern in the House office where the initial compromise that became this bill was proposed, even if it was later named for a much more senior Congressman. The FISA deal was a small retraction following a huge jump forward in intrusive government powers, so I'm proud to be supporting EFF's efforts to push privacy forward as much as possible, in light of the PATRIOT Act's overreach and similar during the past decade.

twoodfin 14y ago
So do you think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo? Do you think the Constitution requires one?
- HistoryInAction 14y ago
  I'm not a lawyer :) Sen. Paul argues an absolutist position on the Fourth Amendment, that any sort of search/seizure of information involving US citizens requires a warrant. Do I agree? I'm certainly favorable to the interpretation of the Fourth. However, my larger concern is the lack of oversight, even by the so-called "Gang of Eight" re: Intelligence committees: http://en.wikipedia.org/wiki/Gang_of_Eight http://en.wikipedia.org/wiki/Gang_of_Eight The government, under both the Bush and Obama administrations, has clearly engaged on systematic "overcollection," or going beyond even the allowable actions by the FISA law. It was a large scandal leading to the retroactive approval by congress through these FISA amendments in 2006: http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_co... So I don't think the right question to ask is whether or not probably cause is the correct standard to use since it doesn't appear that government actors follow the assigned standard anyway. The question is of oversight and the reasonably effective ability to challenge such government behavior, as contrasted with the case of Nicholas Merrill and his NSL letter.
  - twoodfin 14y ago
    I'm asking about the Fourth Amendment issues because I think they're irrelevant, but most people who discuss this issue seem to think they're paramount. Really, this is a separation-of-powers fight: How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying? The President has no obligation to obey laws that impinge on his Constitutional authority. Or to put it more gently, he's generally free to interpret those laws as broadly or narrowly as necessary to avoid that impingement. So I can't get too worked up about the "systematic overcollection" argument. Unless you make it "systematic, deliberate overcollection of purely domestic communications". I am disturbed that the EFF seems to think it's advantageous to blur the distinction (using terms like "probable cause" and "warrants") and make it seem as if these programs are prima facie targeted at domestic communication and unconstitutional.
    - HistoryInAction 14y ago
      Not only am I not a lawyer, but I'm especially not a constitutional lawyer. It seems that you're right that the general concern is about Americans who communicate with targets abroad, not purely domestic communications. However, I recall discussion in the office about chilling effects re: international communications that would harm US academics' abilities to collaborate abroad, which is the only example I remember at this distance. The original article: http://www.nytimes.com/2005/12/16/politics/16program.html?pagewanted=all&_r=0 http://www.nytimes.com/2005/12/16/politics/16program.html?pa... My interpretation of the EFF is that while intent matters, and the intent of existing programs is to primarily target internationally, without oversight, there's no distinction between international and domestic wiretapping. We have little sense of what wiretapping does go on because it's all overseen by secret FISA courts. Here's the '09 report on domestic overcollection: http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=all http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=a... I think the EFF's point is: what protections does a US citizen have against being caught up in these wiretaps, considering the known flaws of the program and its operators? That's where the Fourth Amendment comes into play and questions over probably cause and warrants.

jellicle 14y ago

> Is it somehow shocking that a probable cause standard doesn't apply to national security intercepts of cross-border communication? USPS regulations prohibit reading of letter-mail crossing the border unless a warrant has been obtained. So the answer is yes, it's shocking. Your email has fewer privacy protections than the same email printed out and mailed. > The key point of FISA is not to legalize spying on communications among foreign nationals or between foreign nationals and Americans. You may have entirely missed the debate a few years ago about amnesty for telecoms who participated in spying on Americans, directly against the law, but, well, that's on you. In fact FISA at its last renewal was expressly and completely about legalizing spying on domestic communications between Americans. Which it did.

tptacek 14y ago
Customs can search all incoming and outgoing USPS mail. The statute says so explicitly, and mentions the USPS directly. I think you might be thinking of state borders.
- jellicle 14y ago
  CBP enforces laws about what physical things can cross the border. CBP doesn't spy on the content of first-class letters, and cannot, without a warrant.
  - justinschuh 14y ago
    I'm sorry, but you have no idea what you're talking about: 107 H.R. 3009 http://www.govtrack.us/congress/bills/107/hr3009/text http://www.govtrack.us/congress/bills/107/hr3009/text : SEC. 344. BORDER SEARCH AUTHORITY FOR CERTAIN CONTRABAND IN OUTBOUND MAIL. (a) IN GENERAL- The Tariff Act of 1930 is amended by inserting after section 582 the following: SEC. 583. EXAMINATION OF OUTBOUND MAIL. (a) EXAMINATION- (1) IN GENERAL- For purposes of ensuring compliance with the Customs laws of the United States and other laws enforced by the Customs Service, including the provisions of law described in paragraph (2), a Customs officer may, subject to the provisions of this section, stop and search at the border, without a search warrant, mail of domestic origin transmitted for export by the United States Postal Service and foreign mail transiting the United States that is being imported or exported by the United States Postal Service.