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Warrantless wiretaps? Congress votes yes

180 points by zoowar 14y ago

tptacek 14y ago
You'd want to know but could not easily learn from this article that the wiretaps in question here pertain to foreign intelligence surveillance (ie, the government's authorization to spy on foreign entities). You'd probably also want to know that the hotbutton issue actually at play in this authorization is programmatic surveillance, which is what it sounds like: automated collection and analysis of intercepts. The statutory problem with programmatic intercepts is not that they're unlawful, but rather that FISA ss written required individual suspicion for every captured communication, which is logistically intractable for this application. The law as written limits the application of programmatic surveillance authorizations: An acquisition authorized under subsection (a)– (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. None of these points are to suggest that Wyden is wrong to be seeking accountability for FISA warrants or that nobody should be concerned about foreign surveillance or that there aren't real concerns that foreign surveillance is capturing lots of domestic communication.
- uptown 14y ago
  http://www.youtube.com/watch?v=oYNXVgYhPOc http://www.youtube.com/watch?v=oYNXVgYhPOc "in the United States" "in the United States" What about "outside the United States". If all traffic is routed elsewhere, would that still count? I'm no fan of Hank Johnson - but I wish he'd amended his questions to get an on-the-record statement about whether communications are ever routing outside the country to circumvent wiretap laws.
  - tptacek 14y ago
    "may not intentionally target a United States person reasonably believed to be located outside the United States"
    - AnthonyMouse 14y ago
      The trouble is that they're hoovering up every piece of data they can get their hands on. They never "intentionally target" anyone in particular. So all of the qualifiers are meaningless, because they do all the data collection ahead of time and the qualifiers listed only apply to what data they can collect, not what they can use it for (or who they can use it against) once they have it.
      - rhizome 14y ago
        And really, at the end of the day any restrictions only govern what they can use in court.
    - tdoggette 14y ago
      Always tricky to prove intention, especially when so many related details would be secret.
- jellicle 14y ago
  And not one of those limits prohibits the NSA from copying all electronic communications that enter or leave the United States and reading through them all. Actually none of them prohibit the NSA from even reading wholly domestic communications. Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever to verify they are being followed and Congress has vowed to immunize from liability everyone who violates them. Americans: your government is reading your email. There are no qualifications on that statement. Most especially if you are a dissident of any sort. Just as a reminder, FISA was passed because in the early 1970's, a Senatorial investigation showed that the FBI and NSA were illegally wiretapping the fuck out of law-abiding peace groups and civil rights organizations. It is certain that this is occurring today, again.
  - AndrewKemendo 14y ago
    >Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever What kind of specific oversight would you be satisfied with? There are after all FISA Courts explicitly for the oversight purpose: http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...
  - samstave 14y ago
    Just out of curiosity, assume one were to "wiretap" communications of any US government agency, what laws would be used against this? If they can do warrantless wiretaps, what differentiates their actions from anothers? If they have no legal foundation for their actions, why should another's actions be illegal for the same exact thing?
    - jellicle 14y ago
      There are plenty of laws. The problem here is that "law" doesn't mean anything if there's no one to enforce it. Will wiretapping laws be enforced against you? Yes. If you wiretap the government they're going to do a Bradley Manning on you - solitary naked confinement. Will wiretapping laws be enforced against the President, the NSA, the FBI, the CIA, Verizon executives, Level3 executives, and so on? No. There's consensus among the Congress and Judiciary and President on those two things. And that's the problem. The words of the law are meaningless if enforcement depends on who the violator is.
- miami-dade 14y ago
  The moral of the following retail pricing story is that it's profoundly difficult to assess the value of any product in a vacuum. Subjectively evaluating government acts presents the same difficulties as evaluating products; in both cases display makes all the difference in the world. For the story, imagine you're a plastic surgeon in Los Angeles, and you want to buy your wife a fur coat this Christmas. To be expedient, you visit Hunky Dory Coat Factory on Rodeo Drive. A delightful antique display and friendly faces greet you upon entry. Decorative plants, backlit with colorful lights, are beautifully positioned next to a grandiose marble checkout desk. You make your way forward and an unobtrusive attendant smiles kindly in your direction. Dark mahogany wooden floors span the interior, glimmering in the light as you see the coat you came for. As you inch closer, you know it's the one, but you can't help noticing every coat at Hunky Dory costs over $5,000. You pick up your wife's desired coat despite much apprehension. You go straight for the price tag, slowly turn it over, and incredibly, it's only $1000. "What a tremendous deal," you think to yourself. Now take a look at what happens if we repeat the above at Dilapidated Coat Factory. Dilapidated Coats is located in a crummy old warehouse with high ceilings and noisy industrial fans. The coats hang from a dusty rack on the opposite wall with no organization. The floors are unfinished concrete and the walls are chipping paint. As you move closer, you notice that most coats on the rack cost under $50. But to your surprise, you come across the perfect fur coat for your wife. You inspect the price tag, and you're shocked to find it's $1000. You leave disgusted. The point is, when the product's environment changes, the price you expect to pay changes too. Perceived value is driven by environmental factors. Display makes all the difference. It follows that how you perceive isolated US government actions greatly depends on whether you favor the state of America's economic and political affairs. Just like Hunky Dory's extravagant display made a $1,000 coat look like a deal next to $5,000 coats, if you think America is truly incapable of repeating history, you may think all American laws are passed in good faith, or rationalize all government efforts away as positive. Surveillance, being a precursor to force, is at least worthy of extra scrutiny. First and foremost, the U.S. Constitution was expressly designed to limit government power. By this logic, in order for the US Government to make good faith interpretations to the Constitution, legislative measures must err on the side of limiting government power, surveillance measures included. Under no circumstances should any new measure conceivably facilitate tyranny, nor should the measure employ clever word games to enable such a scenario. If you can entertain the notion that the American government has been corrupted by money and outside influence, and that the US Dollar isn't infallible, you may start to consider the possibility of a scenario where surveillance measures like this one are used to restrict freedoms, and increase government power during stressful times in order to perpetuate failed systems. Therefore it matters greatly whether the political and economic environment looks Dilapidated to you. You're free to think it's Hunky Dory. That is your choice. Assuming the US government is acting in its own interest, even if it were OK to monitor international communications for increased security, it doesn't compel the government to codify rules into law with hedge words like "intentionally". To think, the subversion of your Constitutional rights now hinges upon whether surveillance qualifies as "intentional" according to a legal scholar's interpretation. The use of the word "intentional" here shares the same audacity as the NSA's classifying of American communications as "intercepted" vs. "stored". Either way the NSA gets to summon your records on demand, so who cares whether it's technically "intercepted". Just the same, who cares whether surveillance is intentional or not? This bill appears in effect legalizes dragnet surveillance over the American populace. According to William Binney, surveillance is already done dragnet style across the entire US populace, so it's not like they're ever going to "Intentionally" surveil most American citizens anyway. They do it by default, they do it today, but now they get to point at this word "Intentionally", and claim state secrets privileges while strong-arming the populace out of their Constitutional rights. I urge you to watch billionaire investor Dr. Michael J. Burry's commencement address at the 2012 UCLA Department of Economics [1]. [1] https://www.youtube.com/watch?v=1CLhqjOzoyE https://www.youtube.com/watch?v=1CLhqjOzoyE
toki5 14y ago
I'm confused by the title of this article. Do FISA warrants not count as warrants?
- dguido 14y ago
  Ah, exactly! I posted this same question yesterday. https://news.ycombinator.com/item?id=4976441 https://news.ycombinator.com/item?id=4976441
- mtgx 14y ago
  Ron Wyden explained the "general warrants" in FISA: http://www.rawstory.com/rs/2012/12/27/sen-wyden-fisas-general-warrants-are-like-the-writs-of-assistance-the-founding-fathers-despised/ http://www.rawstory.com/rs/2012/12/27/sen-wyden-fisas-genera... It's not like normal warrants. It's warrant that is in effect for a year and allows them to spy on everyone for that whole year. But of course they will get it renewed every year. The idea of a "FISA Court" is a joke. The only reason they even have that extra step is to say they "go through Court". But it's just like not having it at all, because everything they are doing gets approved. If FISA was a proper law, the warrant should be asked from any regular Court.
  - toki5 14y ago
    It's still a warrant, though, reviewed by eleven (?) judges, who are appointed for non-repeating terms. I definitely agree with Wyden's proposal -- that there be more transparency in this process, even if it's heavily redacted. Even he and his colleagues recognized and respected the need for keeping at least some amount of secrecy with cases like these, where they can't be brought to a regular (read: public) court. I found his suggestions to be sane and level-headed, and I think that if it hadn't been left to the last minute they'd have had a much better chance. What I do not find sane is articles like this that declare that there aren't warrants involved, that there isn't probable cause. I think that that's misleading and sensationalist.
    - fleitz 14y ago
      I agree, without secret courts or indefinite detention the stazi wouldn't have been able to eliminate threats to national security. When it comes to national security almost anyone could be a threat, and the police should be able to surveil them with out having to jump through the bureaucratic hoops. You really can't run a modern society on quaint ideals about 'rights' and 'liberties' foisted upon us by 18th century 'activists'.
mtgx 14y ago
I recommend reading Greenwald's long article on this. I think he explains better than anyone else the absurdity of the situation and the shamelessness of the senators who voted for FISA and against the amendments to it: http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-feinstein-obama-democrats-eavesdropping http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-fei...
- tptacek 14y ago
  If you want to have your biases confirmed, Greenwald is a very effective mechanism for doing that.
  - angersock 14y ago
    Out of curiosity, what's your honest preference in the situation? Where do you come down?
    - tptacek 14y ago
      I have a hard time believing that transparency and documentation requirements pose a real threat to our national security and, while I believe that there probably is a good-faith concern that new documentation requirements could further slow down a system that is already hugely overtaxed, I generally say "fuck 'em, figure it out". Oversight good. Transparency good. On the other hand, the message board response to FISA appears to be a blanket call for an end to spying period. I'd love to live in a world where nobody needed espionage or intelligence services, but I'm not interested in litigating whether we actually live in that world now. As long as FISA isn't perverted into a tool for bringing drug charges against Americans, I'm not very concerned about the underlying mechanism. I think Rand Paul is just showboating. I wish Leahy's amendment requiring warrants for domestic electronic mail older than 180 days had succeeded.
      - deleted 14y ago
        [deleted]
      - angersock 14y ago
ISL 14y ago
Has FISA-authorized surveillance been found constitutional?
- tptacek 14y ago
  It's never come before SCOTUS directly (a technical question about whether lawyers can speculatively sue for information about specific cases was heard in October and will be decided next year) but has survived in lower courts. I'm obviously not an expert but the odds seem very high that warrantless electronic surveillance of specific foreign targets will be found constitutional; warrantless searches of Americans are constitutional in many circumstances. It's important to remember that "constitutional" is not a synonym for "correct". There's a lot of things we could do that are constitutional but ridiculous. Late edit: Note that while it's hard to find FISA case law, it's not as hard to find case law on the principles animating it. Here's SCOTUS, US v US District Court 1972: Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
- mtgx 14y ago
  No, because it has been very hard to even get a lawsuit against it accepted, either because NSA or the White House tried to dismiss the cases because they don't have standing, because they can't prove NSA is spying on them, or by using the state secrets privilege. EFF has one case against it now: https://www.eff.org/deeplinks/2012/10/eff-government-state-secrets-jewel-nsa https://www.eff.org/deeplinks/2012/10/eff-government-state-s...
notatoad 14y ago
It really scares me that the only issues able to find bipartisan support in congress seem to be the bills that benefit nobody. The republicans and democrats can never agree when there is good to be done, but when they get the chance to fuck over the average citizen they're full of cooperation.
- tptacek 14y ago
  It's hard to support a rational argument that FISA mechanisms benefit "nobody". FISA's supporters in DHS and DOJ and DOD will point lawmakers to a litany of cases where FISA-backed surveillance saved lives. The issue is whether the cost of that surveillance is worth the increased safety.
  - notatoad 14y ago
    FISA isn't even about increased surveillance. If the DHS thinks they need more surveillance to do their job, i trust them on that. FISA is about a lack of oversight and due process on the surveillance. In the litany of cases where FISA-backed surveillance saves lives, that same surveillance could have been performed with proper oversight and regulation, rather than what basically amounts to the whim of an investigator. The absence of regulation in this instance benefits nobody (except those who would abuse it).
    - tptacek 14y ago
      I don't understand how FISA doesn't constitute oversight over foreign surveillance, unless you're of the opinion that spies should be required to get warrants to spy on foreigners. These arguments always seem to point out how FISA is nothing like a criminal court, as if that was a dispositive argument. FISA isn't supposed to be like a criminal court. The purpose of FISA is to ensure that our foreign intelligence services don't spy on our own citizens, and not much else.
  - guelo 14y ago
    > a litany of cases where FISA-backed surveillance saved lives Bullshit.
charonn0 14y ago
Sen. Feinstein, who I've voted for since I was 18, just lost a huge chunk of the respect I had for her.
- tptacek 14y ago
  Huh? Didn't Feinstein speak on the floor of the Senate 4 years ago in favor of the exact bill they just renewed?
  - charonn0 14y ago
    It's either Feinstein or the GOP nominee (third parties need not apply to Congress.) If the GOP were to nominate someone I agreed with more than her, I'd vote for them. They haven't, so I haven't. The lesser of two evils, while still evil, is at least less so.
    - tptacek 14y ago
      I'd vote for her too if I had to, but this wasn't a surprising move on her part.
- latimer 14y ago
  This isn't anything new. Feinstein was a supporter of SOPA/PIPA (Boxer as well)
maeon3 14y ago
America is going to be destroyed by these ticks in government, these are the hyopthermia pains before the coming realization that we will not recover and be frozen to suffer death by slow freezing, this will take 20 years, but our great nation will fall. As hackers we must prepare to plant the seed for a superior nation when we are overrun by communists, socialists, corruption in every layer of government and business, and bleed from so many ticks and parasites that the collective dies from an unexpected shock to our system. this is our writing on the wall. you have been measured and found wanting.
- angersock 14y ago
  One could dryly observe that it would appear to be the capitalists, lenders, investors, and bankers that've caused this nation the most upset, one could.
  - deleted 14y ago
    [deleted]
  - crusso 14y ago
    The capitalists wouldn't be able to do much to dent the economy, much less the supporting fabric of the nation without their collusion with the government. If you don't realize the government's more than sizable role in the most recent catastrophe, you haven't been paying attention.
    - AndrewKemendo 14y ago
      It's clearly at the request of said capitalists, what with rent seeking behavior, quest for monopoly power and whatnot.
- enraged_camel 14y ago
  Surveillance is neither communist or socialist in nature. It is authoritarian, which has more to do with fascism than anything else.
alisnic 14y ago
This will sound silly, but after watching The Wire, I am tempted to support
- tptacek 14y ago
  FISA warrants would not help McNulty at all; they cannot be used to target people who reside in America.
  - utnick 14y ago
    This is not true, FISA warrants certainly target people who reside in America. That is the whole point of them. If Bob in afghanistan is talking to Sue in pakistan, no warrant is needed. The USA can spy on that all day. They only need to go through the FISA warrant process when the communication is in America. Here is a good write up with details: http://belfercenter.ksg.harvard.edu/publication/19156/electronic_surveillance_and_fisa.html http://belfercenter.ksg.harvard.edu/publication/19156/electr...
    - tptacek 14y ago
      That's a great article, and thanks for it, but what I meant was that none of the criminals in The Wire were FISA-eligible targets; even "The Greek" (who was not Greek) was a lawful US resident.
      - notyettaken 14y ago
        Everyone is FISA-eligible: "which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control" - http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillan..., paraphrasing http://www.law.cornell.edu/uscode/text/50/1801 http://www.law.cornell.edu/uscode/text/50/1801 (b)(2)(C). Certainly it makes sense for the NSA to store all communications by FISA-eligible persons, if they can. With the Bluffdale datacenter, storing connection information becomes feasible. I worry about the interpretation of the FISA law where potentially anyone is FISA-eligible. Do you have reason to believe that the NSA would reject that interpretation? More fundamentally, is it acceptable for lawmakers to pass FISA in its current form if it allows that interpretation? If so, what would make the law unacceptable?
guelo 14y ago
For those in here defending no oversight of FISA, note that the 2008 FISA revision included retroactive immunity for telecoms that had already been caught illegally monitoring Americans. Since then the program has been operating in complete secrecy, though there have been hints by Senators privy to classified information that alarming levels of spying on ordinary Americans is taking place. There have also been periodic leaks and whistle blowers hinting at massive data gathering operations. I think there is a big likelihood that ALL of our private electronic communications are being illegally monitored. The complete opposition to congressional oversight is another big hint that illegal activity is going on.
- tptacek 14y ago
  No, it immunized telcos for assistance in surveillance under the color of the 2008 FISA Amendments act.
  - JensenDied 14y ago
    Retroactively for what was illegal before the act was passed.
urza 14y ago
Jacob Appelbaum 29C3 Keynote: Not My Department http://youtu.be/QNsePZj_Yks http://youtu.be/QNsePZj_Yks
- safeaim 14y ago
  I sure hope this video gets more views, as this is one of the most important privacy talks this year.
linuxhansl 14y ago
Sigh. Some things will never change. Surveillance will only increase, slowly. And like frogs in water that is slowly warmed we'll just all go along with it, until we're nicely cooked. * There is no terrorist lurking under every rock and behind every corner. * 9-11 will repeat itself, because the context is changed now. Passengers can no longer assume that they will get away alive by complying, so they will fight back. * These things do not have to be carried out in secrecy. * These measures are ineffective anyway. Anybody who is able to pull of planting an impactful bomb somewhere in the US can most definitely also figure out how to securely communicate or how to hide a communication. Edit: Formatting
eschulte 14y ago
Here is a more complete (but still short) article on the same topic [1], and here are the records of the votes for the passage of this bill, and the rejection of the three proposed ammendments (search for "00236" in the table) [2]. The second link is useful if you want to see how your representative voted. [1] http://www.nytimes.com/2012/12/29/us/politics/senate-votes-to-extend-electronic-surveillance-authority-under-fisa.html http://www.nytimes.com/2012/12/29/us/politics/senate-votes-t... [2] http://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_112_2.htm http://www.senate.gov/legislative/LIS/roll_call_lists/vote_m...

180 points by zoowar 14y ago

You'd want to know but could not easily learn from this article that the wiretaps in question here pertain to foreign intelligence surveillance (ie, the government's authorization to spy on foreign entities). You'd probably also want to know that the hotbutton issue actually at play in this authorization is programmatic surveillance, which is what it sounds like: automated collection and analysis of intercepts. The statutory problem with programmatic intercepts is not that they're unlawful, but rather that FISA ss written required individual suspicion for every captured communication, which is logistically intractable for this application. The law as written limits the application of programmatic surveillance authorizations: An acquisition authorized under subsection (a)– (1) may not intentionally target any person known at the time of acquisition to be located in the United States; (2) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States; (3) may not intentionally target a United States person reasonably believed to be located outside the United States; (4) may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States; and (5) shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States. None of these points are to suggest that Wyden is wrong to be seeking accountability for FISA warrants or that nobody should be concerned about foreign surveillance or that there aren't real concerns that foreign surveillance is capturing lots of domestic communication.

uptown 14y ago
http://www.youtube.com/watch?v=oYNXVgYhPOc http://www.youtube.com/watch?v=oYNXVgYhPOc "in the United States" "in the United States" What about "outside the United States". If all traffic is routed elsewhere, would that still count? I'm no fan of Hank Johnson - but I wish he'd amended his questions to get an on-the-record statement about whether communications are ever routing outside the country to circumvent wiretap laws.
- tptacek 14y ago
  "may not intentionally target a United States person reasonably believed to be located outside the United States"
  - AnthonyMouse 14y ago
    The trouble is that they're hoovering up every piece of data they can get their hands on. They never "intentionally target" anyone in particular. So all of the qualifiers are meaningless, because they do all the data collection ahead of time and the qualifiers listed only apply to what data they can collect, not what they can use it for (or who they can use it against) once they have it.
    - rhizome 14y ago
      And really, at the end of the day any restrictions only govern what they can use in court.
  - tdoggette 14y ago
    Always tricky to prove intention, especially when so many related details would be secret.
jellicle 14y ago
And not one of those limits prohibits the NSA from copying all electronic communications that enter or leave the United States and reading through them all. Actually none of them prohibit the NSA from even reading wholly domestic communications. Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever to verify they are being followed and Congress has vowed to immunize from liability everyone who violates them. Americans: your government is reading your email. There are no qualifications on that statement. Most especially if you are a dissident of any sort. Just as a reminder, FISA was passed because in the early 1970's, a Senatorial investigation showed that the FBI and NSA were illegally wiretapping the fuck out of law-abiding peace groups and civil rights organizations. It is certain that this is occurring today, again.
- AndrewKemendo 14y ago
  >Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever What kind of specific oversight would you be satisfied with? There are after all FISA Courts explicitly for the oversight purpose: http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...
- samstave 14y ago
  Just out of curiosity, assume one were to "wiretap" communications of any US government agency, what laws would be used against this? If they can do warrantless wiretaps, what differentiates their actions from anothers? If they have no legal foundation for their actions, why should another's actions be illegal for the same exact thing?
  - jellicle 14y ago
    There are plenty of laws. The problem here is that "law" doesn't mean anything if there's no one to enforce it. Will wiretapping laws be enforced against you? Yes. If you wiretap the government they're going to do a Bradley Manning on you - solitary naked confinement. Will wiretapping laws be enforced against the President, the NSA, the FBI, the CIA, Verizon executives, Level3 executives, and so on? No. There's consensus among the Congress and Judiciary and President on those two things. And that's the problem. The words of the law are meaningless if enforcement depends on who the violator is.
miami-dade 14y ago
The moral of the following retail pricing story is that it's profoundly difficult to assess the value of any product in a vacuum. Subjectively evaluating government acts presents the same difficulties as evaluating products; in both cases display makes all the difference in the world. For the story, imagine you're a plastic surgeon in Los Angeles, and you want to buy your wife a fur coat this Christmas. To be expedient, you visit Hunky Dory Coat Factory on Rodeo Drive. A delightful antique display and friendly faces greet you upon entry. Decorative plants, backlit with colorful lights, are beautifully positioned next to a grandiose marble checkout desk. You make your way forward and an unobtrusive attendant smiles kindly in your direction. Dark mahogany wooden floors span the interior, glimmering in the light as you see the coat you came for. As you inch closer, you know it's the one, but you can't help noticing every coat at Hunky Dory costs over $5,000. You pick up your wife's desired coat despite much apprehension. You go straight for the price tag, slowly turn it over, and incredibly, it's only $1000. "What a tremendous deal," you think to yourself. Now take a look at what happens if we repeat the above at Dilapidated Coat Factory. Dilapidated Coats is located in a crummy old warehouse with high ceilings and noisy industrial fans. The coats hang from a dusty rack on the opposite wall with no organization. The floors are unfinished concrete and the walls are chipping paint. As you move closer, you notice that most coats on the rack cost under $50. But to your surprise, you come across the perfect fur coat for your wife. You inspect the price tag, and you're shocked to find it's $1000. You leave disgusted. The point is, when the product's environment changes, the price you expect to pay changes too. Perceived value is driven by environmental factors. Display makes all the difference. It follows that how you perceive isolated US government actions greatly depends on whether you favor the state of America's economic and political affairs. Just like Hunky Dory's extravagant display made a $1,000 coat look like a deal next to $5,000 coats, if you think America is truly incapable of repeating history, you may think all American laws are passed in good faith, or rationalize all government efforts away as positive. Surveillance, being a precursor to force, is at least worthy of extra scrutiny. First and foremost, the U.S. Constitution was expressly designed to limit government power. By this logic, in order for the US Government to make good faith interpretations to the Constitution, legislative measures must err on the side of limiting government power, surveillance measures included. Under no circumstances should any new measure conceivably facilitate tyranny, nor should the measure employ clever word games to enable such a scenario. If you can entertain the notion that the American government has been corrupted by money and outside influence, and that the US Dollar isn't infallible, you may start to consider the possibility of a scenario where surveillance measures like this one are used to restrict freedoms, and increase government power during stressful times in order to perpetuate failed systems. Therefore it matters greatly whether the political and economic environment looks Dilapidated to you. You're free to think it's Hunky Dory. That is your choice. Assuming the US government is acting in its own interest, even if it were OK to monitor international communications for increased security, it doesn't compel the government to codify rules into law with hedge words like "intentionally". To think, the subversion of your Constitutional rights now hinges upon whether surveillance qualifies as "intentional" according to a legal scholar's interpretation. The use of the word "intentional" here shares the same audacity as the NSA's classifying of American communications as "intercepted" vs. "stored". Either way the NSA gets to summon your records on demand, so who cares whether it's technically "intercepted". Just the same, who cares whether surveillance is intentional or not? This bill appears in effect legalizes dragnet surveillance over the American populace. According to William Binney, surveillance is already done dragnet style across the entire US populace, so it's not like they're ever going to "Intentionally" surveil most American citizens anyway. They do it by default, they do it today, but now they get to point at this word "Intentionally", and claim state secrets privileges while strong-arming the populace out of their Constitutional rights. I urge you to watch billionaire investor Dr. Michael J. Burry's commencement address at the 2012 UCLA Department of Economics [1]. [1] https://www.youtube.com/watch?v=1CLhqjOzoyE https://www.youtube.com/watch?v=1CLhqjOzoyE

toki5 14y ago

I'm confused by the title of this article. Do FISA warrants not count as warrants?

dguido 14y ago
Ah, exactly! I posted this same question yesterday. https://news.ycombinator.com/item?id=4976441 https://news.ycombinator.com/item?id=4976441
mtgx 14y ago
Ron Wyden explained the "general warrants" in FISA: http://www.rawstory.com/rs/2012/12/27/sen-wyden-fisas-general-warrants-are-like-the-writs-of-assistance-the-founding-fathers-despised/ http://www.rawstory.com/rs/2012/12/27/sen-wyden-fisas-genera... It's not like normal warrants. It's warrant that is in effect for a year and allows them to spy on everyone for that whole year. But of course they will get it renewed every year. The idea of a "FISA Court" is a joke. The only reason they even have that extra step is to say they "go through Court". But it's just like not having it at all, because everything they are doing gets approved. If FISA was a proper law, the warrant should be asked from any regular Court.
- toki5 14y ago
  It's still a warrant, though, reviewed by eleven (?) judges, who are appointed for non-repeating terms. I definitely agree with Wyden's proposal -- that there be more transparency in this process, even if it's heavily redacted. Even he and his colleagues recognized and respected the need for keeping at least some amount of secrecy with cases like these, where they can't be brought to a regular (read: public) court. I found his suggestions to be sane and level-headed, and I think that if it hadn't been left to the last minute they'd have had a much better chance. What I do not find sane is articles like this that declare that there aren't warrants involved, that there isn't probable cause. I think that that's misleading and sensationalist.
  - fleitz 14y ago
    I agree, without secret courts or indefinite detention the stazi wouldn't have been able to eliminate threats to national security. When it comes to national security almost anyone could be a threat, and the police should be able to surveil them with out having to jump through the bureaucratic hoops. You really can't run a modern society on quaint ideals about 'rights' and 'liberties' foisted upon us by 18th century 'activists'.

mtgx 14y ago

I recommend reading Greenwald's long article on this. I think he explains better than anyone else the absurdity of the situation and the shamelessness of the senators who voted for FISA and against the amendments to it: http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-feinstein-obama-democrats-eavesdropping http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-fei...

tptacek 14y ago
If you want to have your biases confirmed, Greenwald is a very effective mechanism for doing that.
- angersock 14y ago
  Out of curiosity, what's your honest preference in the situation? Where do you come down?
  - tptacek 14y ago
    I have a hard time believing that transparency and documentation requirements pose a real threat to our national security and, while I believe that there probably is a good-faith concern that new documentation requirements could further slow down a system that is already hugely overtaxed, I generally say "fuck 'em, figure it out". Oversight good. Transparency good. On the other hand, the message board response to FISA appears to be a blanket call for an end to spying period. I'd love to live in a world where nobody needed espionage or intelligence services, but I'm not interested in litigating whether we actually live in that world now. As long as FISA isn't perverted into a tool for bringing drug charges against Americans, I'm not very concerned about the underlying mechanism. I think Rand Paul is just showboating. I wish Leahy's amendment requiring warrants for domestic electronic mail older than 180 days had succeeded.
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    - angersock 14y ago

ISL 14y ago

Has FISA-authorized surveillance been found constitutional?

tptacek 14y ago
It's never come before SCOTUS directly (a technical question about whether lawyers can speculatively sue for information about specific cases was heard in October and will be decided next year) but has survived in lower courts. I'm obviously not an expert but the odds seem very high that warrantless electronic surveillance of specific foreign targets will be found constitutional; warrantless searches of Americans are constitutional in many circumstances. It's important to remember that "constitutional" is not a synonym for "correct". There's a lot of things we could do that are constitutional but ridiculous. Late edit: Note that while it's hard to find FISA case law, it's not as hard to find case law on the principles animating it. Here's SCOTUS, US v US District Court 1972: Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.
mtgx 14y ago
No, because it has been very hard to even get a lawsuit against it accepted, either because NSA or the White House tried to dismiss the cases because they don't have standing, because they can't prove NSA is spying on them, or by using the state secrets privilege. EFF has one case against it now: https://www.eff.org/deeplinks/2012/10/eff-government-state-secrets-jewel-nsa https://www.eff.org/deeplinks/2012/10/eff-government-state-s...

notatoad 14y ago

It really scares me that the only issues able to find bipartisan support in congress seem to be the bills that benefit nobody. The republicans and democrats can never agree when there is good to be done, but when they get the chance to fuck over the average citizen they're full of cooperation.

tptacek 14y ago
It's hard to support a rational argument that FISA mechanisms benefit "nobody". FISA's supporters in DHS and DOJ and DOD will point lawmakers to a litany of cases where FISA-backed surveillance saved lives. The issue is whether the cost of that surveillance is worth the increased safety.
- notatoad 14y ago
  FISA isn't even about increased surveillance. If the DHS thinks they need more surveillance to do their job, i trust them on that. FISA is about a lack of oversight and due process on the surveillance. In the litany of cases where FISA-backed surveillance saves lives, that same surveillance could have been performed with proper oversight and regulation, rather than what basically amounts to the whim of an investigator. The absence of regulation in this instance benefits nobody (except those who would abuse it).
  - tptacek 14y ago
    I don't understand how FISA doesn't constitute oversight over foreign surveillance, unless you're of the opinion that spies should be required to get warrants to spy on foreigners. These arguments always seem to point out how FISA is nothing like a criminal court, as if that was a dispositive argument. FISA isn't supposed to be like a criminal court. The purpose of FISA is to ensure that our foreign intelligence services don't spy on our own citizens, and not much else.
- guelo 14y ago
  > a litany of cases where FISA-backed surveillance saved lives Bullshit.

charonn0 14y ago

Sen. Feinstein, who I've voted for since I was 18, just lost a huge chunk of the respect I had for her.

tptacek 14y ago
Huh? Didn't Feinstein speak on the floor of the Senate 4 years ago in favor of the exact bill they just renewed?
- charonn0 14y ago
  It's either Feinstein or the GOP nominee (third parties need not apply to Congress.) If the GOP were to nominate someone I agreed with more than her, I'd vote for them. They haven't, so I haven't. The lesser of two evils, while still evil, is at least less so.
  - tptacek 14y ago
    I'd vote for her too if I had to, but this wasn't a surprising move on her part.
latimer 14y ago
This isn't anything new. Feinstein was a supporter of SOPA/PIPA (Boxer as well)

maeon3 14y ago

America is going to be destroyed by these ticks in government, these are the hyopthermia pains before the coming realization that we will not recover and be frozen to suffer death by slow freezing, this will take 20 years, but our great nation will fall. As hackers we must prepare to plant the seed for a superior nation when we are overrun by communists, socialists, corruption in every layer of government and business, and bleed from so many ticks and parasites that the collective dies from an unexpected shock to our system. this is our writing on the wall. you have been measured and found wanting.

angersock 14y ago
One could dryly observe that it would appear to be the capitalists, lenders, investors, and bankers that've caused this nation the most upset, one could.
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- crusso 14y ago
  The capitalists wouldn't be able to do much to dent the economy, much less the supporting fabric of the nation without their collusion with the government. If you don't realize the government's more than sizable role in the most recent catastrophe, you haven't been paying attention.
  - AndrewKemendo 14y ago
    It's clearly at the request of said capitalists, what with rent seeking behavior, quest for monopoly power and whatnot.
enraged_camel 14y ago
Surveillance is neither communist or socialist in nature. It is authoritarian, which has more to do with fascism than anything else.

alisnic 14y ago

This will sound silly, but after watching The Wire, I am tempted to support

tptacek 14y ago
FISA warrants would not help McNulty at all; they cannot be used to target people who reside in America.
- utnick 14y ago
  This is not true, FISA warrants certainly target people who reside in America. That is the whole point of them. If Bob in afghanistan is talking to Sue in pakistan, no warrant is needed. The USA can spy on that all day. They only need to go through the FISA warrant process when the communication is in America. Here is a good write up with details: http://belfercenter.ksg.harvard.edu/publication/19156/electronic_surveillance_and_fisa.html http://belfercenter.ksg.harvard.edu/publication/19156/electr...
  - tptacek 14y ago
    That's a great article, and thanks for it, but what I meant was that none of the criminals in The Wire were FISA-eligible targets; even "The Greek" (who was not Greek) was a lawful US resident.
    - notyettaken 14y ago
      Everyone is FISA-eligible: "which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control" - http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillan..., paraphrasing http://www.law.cornell.edu/uscode/text/50/1801 http://www.law.cornell.edu/uscode/text/50/1801 (b)(2)(C). Certainly it makes sense for the NSA to store all communications by FISA-eligible persons, if they can. With the Bluffdale datacenter, storing connection information becomes feasible. I worry about the interpretation of the FISA law where potentially anyone is FISA-eligible. Do you have reason to believe that the NSA would reject that interpretation? More fundamentally, is it acceptable for lawmakers to pass FISA in its current form if it allows that interpretation? If so, what would make the law unacceptable?

guelo 14y ago

For those in here defending no oversight of FISA, note that the 2008 FISA revision included retroactive immunity for telecoms that had already been caught illegally monitoring Americans. Since then the program has been operating in complete secrecy, though there have been hints by Senators privy to classified information that alarming levels of spying on ordinary Americans is taking place. There have also been periodic leaks and whistle blowers hinting at massive data gathering operations. I think there is a big likelihood that ALL of our private electronic communications are being illegally monitored. The complete opposition to congressional oversight is another big hint that illegal activity is going on.

tptacek 14y ago
No, it immunized telcos for assistance in surveillance under the color of the 2008 FISA Amendments act.
- JensenDied 14y ago
  Retroactively for what was illegal before the act was passed.

urza 14y ago

Jacob Appelbaum 29C3 Keynote: Not My Department http://youtu.be/QNsePZj_Yks http://youtu.be/QNsePZj_Yks

safeaim 14y ago
I sure hope this video gets more views, as this is one of the most important privacy talks this year.

linuxhansl 14y ago

Sigh. Some things will never change. Surveillance will only increase, slowly. And like frogs in water that is slowly warmed we'll just all go along with it, until we're nicely cooked. * There is no terrorist lurking under every rock and behind every corner. * 9-11 will repeat itself, because the context is changed now. Passengers can no longer assume that they will get away alive by complying, so they will fight back. * These things do not have to be carried out in secrecy. * These measures are ineffective anyway. Anybody who is able to pull of planting an impactful bomb somewhere in the US can most definitely also figure out how to securely communicate or how to hide a communication. Edit: Formatting

eschulte 14y ago

Here is a more complete (but still short) article on the same topic [1], and here are the records of the votes for the passage of this bill, and the rejection of the three proposed ammendments (search for "00236" in the table) [2]. The second link is useful if you want to see how your representative voted. [1] http://www.nytimes.com/2012/12/29/us/politics/senate-votes-to-extend-electronic-surveillance-authority-under-fisa.html http://www.nytimes.com/2012/12/29/us/politics/senate-votes-t... [2] http://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_112_2.htm http://www.senate.gov/legislative/LIS/roll_call_lists/vote_m...