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>As I understand it, the warrant process used in domestic criminal law is also not adversarial, implying somewhat that the second part of the topic sentence of

>As I understand it, the warrant process used in domestic criminal law is also not adversarial, implying somewhat that the second part of the topic sentence of this graf might mislead. No. What you're missing here is that he is not speaking about the FISA court's warrant process being non-adversarial. He is saying that the process by which laws and permissions are being extended to the NSA/government is based solely on the representations of the government, without rebuttal. That's what's non-adversarial. It's a huge distinction. Effectively, laws are being created based solely on the statements of the government. The example he gave: In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the "special needs" doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

tptacek 13y ago
The only thing the FISC is empowered to do is to grant warrants and certifications to intelligence services. My point was, domestic criminal warrants work the same way: they're non-adversarial and often secret. I'm having a hard time understanding how we make the jump from "warrant" to "law". The word "law" connotes a huge sweep of authority that the FISC simply doesn't have. As a reminder: the Fourth Amendment doesn't protect foreigners abroad; the Constitution covers people on American soil, and American citizens abroad, and that's it. There's a robust meme on HN that the USG is bound by the Constitution when dealing with (say) Malaysians. It simply isn't. The distinction is important because the FISA process pertains exclusively to foreign intelligence. The FISC has no authority to authorize deliberate surveillance of American citizens.
- jessaustin 13y ago
  I'm having a hard time understanding how we make the jump from "warrant" to "law". The word "law" connotes a huge sweep of authority that the FISC simply doesn't have. I think the point is that, since there are no appeals from the FISC proceedings, a changed interpretation on the part of that court (what Senators Wyden and Udall alleged to have occurred) is effectively a change in the law.
  - tptacek 13y ago
    First, there are appeals from the FISC proceedings; there's a FISCR review court, and like any proceeding of the US Government FISC is subject to the oversight of SCOTUS. Second, what are you thinking when you think about changes to the law? What are the contours of the changes you're imagining are created by FISC precedent? Maybe we don't disagree at all, or maybe we're football fields apart in our understanding of what FISC precedent can actually do.
    - jessaustin 13y ago
      1. In a non-adversarial situation, appeals will only ever go one way, so they'll act as a ratchet, in this case always giving the surveillance apparatus more of what it wants. In practice, the government won't appeal either; they'll just take more bites at the apple. (Yeah, that guy we wanted to surveil last week but you didn't let us? This week we still want to surveil him and we've addressed your previous objections. Sign here please.) So, what FISC says, goes. 2. I suppose I'm speaking of "The Law" in general terms, in that I don't imagine that FISC takes a red pencil to particular sections of the United States Code. However, "code" is a bit of a misnomer, because it's never "compiled". Instead, relevant terms that govern e.g. what circumstances justify a particular finding are interpreted in mostly consistent ways. The law effectively changes when those interpretations change. As a more specific example of this, I think Senators Udall and Wyden have been pretty clear in their accusations, at least recently. If you don't find their complaints compelling, why not?
      - unclebucknasty 13y ago
        "Instead, relevant terms that govern e.g. what circumstances justify a particular finding are interpreted in mostly consistent ways. The law effectively changes when those interpretations change" This is exactly what I (and the article) meant as well. Likewise Udall and Wyden. That is, when the court creates new interpretations of existing laws (and the Constitution itself, as in the example), then it is effectively creating new laws. Of course, these are not laws in the sense that Congress passes them. Instead, these become "precedent" to the extent that future rulings can rely upon them. Now, such interpretation is a "normal" thing that is done out in the open with, for example, The Supreme Court. Of course, there are two (adversarial) parties when this happens. But, when this (secret) court is carving out these new interpretations of Constitutional law based solely on the assertions of the government (i.e. without adversarial debate), then we have a very big problem. So, I would also be interested in hearing why the parent doesn't find Wyden's and Udall's complaints compelling.
- sneak 13y ago
  > There's a robust meme on HN that the USG is bound by the Constitution when dealing with (say) Malaysians. It simply isn't. That's because it well should be. I don't think anyone asserts that it is legally obligated to today, but if we are to maintain a globally competitive internet industry we must start at least making the appearance that we respect the privacy of all those filthy foreigners.

tptacek 13y ago

The only thing the FISC is empowered to do is to grant warrants and certifications to intelligence services. My point was, domestic criminal warrants work the same way: they're non-adversarial and often secret. I'm having a hard time understanding how we make the jump from "warrant" to "law". The word "law" connotes a huge sweep of authority that the FISC simply doesn't have. As a reminder: the Fourth Amendment doesn't protect foreigners abroad; the Constitution covers people on American soil, and American citizens abroad, and that's it. There's a robust meme on HN that the USG is bound by the Constitution when dealing with (say) Malaysians. It simply isn't. The distinction is important because the FISA process pertains exclusively to foreign intelligence. The FISC has no authority to authorize deliberate surveillance of American citizens.

jessaustin 13y ago
I'm having a hard time understanding how we make the jump from "warrant" to "law". The word "law" connotes a huge sweep of authority that the FISC simply doesn't have. I think the point is that, since there are no appeals from the FISC proceedings, a changed interpretation on the part of that court (what Senators Wyden and Udall alleged to have occurred) is effectively a change in the law.
- tptacek 13y ago
  First, there are appeals from the FISC proceedings; there's a FISCR review court, and like any proceeding of the US Government FISC is subject to the oversight of SCOTUS. Second, what are you thinking when you think about changes to the law? What are the contours of the changes you're imagining are created by FISC precedent? Maybe we don't disagree at all, or maybe we're football fields apart in our understanding of what FISC precedent can actually do.
  - jessaustin 13y ago
    1. In a non-adversarial situation, appeals will only ever go one way, so they'll act as a ratchet, in this case always giving the surveillance apparatus more of what it wants. In practice, the government won't appeal either; they'll just take more bites at the apple. (Yeah, that guy we wanted to surveil last week but you didn't let us? This week we still want to surveil him and we've addressed your previous objections. Sign here please.) So, what FISC says, goes. 2. I suppose I'm speaking of "The Law" in general terms, in that I don't imagine that FISC takes a red pencil to particular sections of the United States Code. However, "code" is a bit of a misnomer, because it's never "compiled". Instead, relevant terms that govern e.g. what circumstances justify a particular finding are interpreted in mostly consistent ways. The law effectively changes when those interpretations change. As a more specific example of this, I think Senators Udall and Wyden have been pretty clear in their accusations, at least recently. If you don't find their complaints compelling, why not?
    - unclebucknasty 13y ago
      "Instead, relevant terms that govern e.g. what circumstances justify a particular finding are interpreted in mostly consistent ways. The law effectively changes when those interpretations change" This is exactly what I (and the article) meant as well. Likewise Udall and Wyden. That is, when the court creates new interpretations of existing laws (and the Constitution itself, as in the example), then it is effectively creating new laws. Of course, these are not laws in the sense that Congress passes them. Instead, these become "precedent" to the extent that future rulings can rely upon them. Now, such interpretation is a "normal" thing that is done out in the open with, for example, The Supreme Court. Of course, there are two (adversarial) parties when this happens. But, when this (secret) court is carving out these new interpretations of Constitutional law based solely on the assertions of the government (i.e. without adversarial debate), then we have a very big problem. So, I would also be interested in hearing why the parent doesn't find Wyden's and Udall's complaints compelling.
sneak 13y ago
> There's a robust meme on HN that the USG is bound by the Constitution when dealing with (say) Malaysians. It simply isn't. That's because it well should be. I don't think anyone asserts that it is legally obligated to today, but if we are to maintain a globally competitive internet industry we must start at least making the appearance that we respect the privacy of all those filthy foreigners.