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FISA court judge: No company has ever challenged Patriot Act sharing

125 points by rosser 13y ago

feifan 13y ago
Goes without saying that the system is broken. But I'd imagine it's easier/cheaper to just hand over the data than challenge the request and get lawyers involved…
- bediger4000 13y ago
  Can a receipient of a FISA court order even get their own lawyers involved? Given the kind of hair splitting, finely honed definitions and word games going on in Congressional testimony, I wouldn't put it past FISA judges/spokesmodels/whatever to claim that nobody ever challenged an order when there's actually no procedure to perform such a challenge, and no attempts to challenge have even been recognized.
  - DannyBee 13y ago
    1. Yes, it's specifically allowed by statute to talk to your lawyer about it 2. The FISC judge is correct in his statement. For that type of order, their is a procedure, it's documented in both the statute and the rules, and has a documented appeals procedure that leads to the supreme court. He's not a spokesmodel, he's a federal judge. While some small percentage are certainly political appointees, this one, and others, are more deserving of respect than you are giving them.
    - rosser 13y ago
      Your comment — particularly your final graf — reads to me like a big ol', "Don't hate the player, hate the game." And while, for some games, I think that's a completely legitimate attitude, I really have a lot of trouble swallowing it in this context. As a Federal judge, he has tremendous power to effect change in the matters that come before his bench, and yet FISC is, to all appearances, a rubber stamp with a security clearance. To the extent that's actually the case, I don't think hating the player is unwarranted, as it's exactly that kind of player who has made — and continues to make, with every unquestioned encroachment — the game the bowl of suck that it is.
      - DannyBee 13y ago
        It's not really "don't hate the player, hate the game" at all. It's "don't be an asshole to a guy you've never met and have no idea about, and assume bad faith on his part". FISC is not a rubber stamp, as explained in that very article. As a federal judge, he is bound by the rules of the FISC court, and the legal statutes that enacted it and set the standards they must follow. He just went out of his way to say, in public: "Just FYI, you guys are more than welcome to challenge this. I believe you have the authority to do so, and here is the statute I believe grants you that authority". Instead of saying "hey, great look, even the main judge thinks we have a right to challenge this", y'all are jumping on him like he's lying through his teeth. He has no right to challenge these orders himself. He can modify them, but only within the bounds of the law. As I said, his job is not to make law, but to be bound by the statutes that rule his court. Have you ever stopped for a second to think that maybe this is his way of trying to explain to people how to get this stuff shut down? You know, instead of assuming he's just trying to lie to save face. I like to give people the benefit of the doubt. Maybe he is lying to save face. Maybe he doesn't really give a shit. Most federal judges I know are better than that. I may not always agree with their ideologies or rulings, but just about every one i've ever met tries to do the right thing. Whatever you may believe, they certainly aren't mouthpieces for any administration. Hell, even his wikipedia page will tell you that.
        rosser 13y ago
        First, where in what I said do you infer an accusation of lying? I never said, nor even thought such a thing. To the contrary, I'm actually rather thrilled to see someone that deeply involved in this nastiness stand up and say what he's just said. That doesn't excuse his participation to date one whit, however. He's as culpable as anyone else who actively and willingly participates in the surveillance state for the fact that we have a surveillance state, he's directly and personally responsible for whatever abuses of the law have passed across his bench, and I'm willing to bet everything I have that such abuses have crossed his bench, and been approved by him. Second, how exactly does one not characterize a situation in which, "In short, it appears that the government only submits applications that it knows will get approved—after having first gotten them modified to meet that approval," as more or less a rubber stamp?
joe_the_user 13y ago
A friend of might received rather extreme abuse while working in a classified position. The only potential means he had to deal with it was finding a competent labor lawyer who also had clearance. Naturally, the easier course of action was to write off the experience. Secrecy and unquestionable authority breed contemptuous disregard for your fellow humans. Yeah, "Nobody ever challenged this", most likely because of the high barriers to challenge, etc. Basically, not only is FISA broken but a society that tolerates a "classified" area of work and information is doomed to have that secret area metastasize and suck the life out of it.
- yuhong 13y ago
  I wrote these on PRISM and Google: https://news.ycombinator.com/item?id=6054532 https://news.ycombinator.com/item?id=6054532 https://news.ycombinator.com/item?id=6078124 https://news.ycombinator.com/item?id=6078124
  - josh2600 13y ago
    I think you're being downvoted for linking to your comments without explaining why they're relevant. I would assume, though, given their scale, that someone at one of these companies has the necessary clearance to contest. I think FISA is being intentionally facetious, or rather technically. I find it impossible to believe no one has attempted, but find it plausible that the government has yet to give anyone standing to sue. Finally, given the sovereign clause, I don't see why the government has to accept a lawsuit against them.
coldcode 13y ago
Even if they did how would we ever find out about it?
- anigbrowl 13y ago
  Declassification, the same way we find out about a lot of things, albeit some time later.
  - bediger4000 13y ago
    Yes, and we all know that everything is prompty declassified after it passes its freshness date. Eventual declassification is a pretty poor substitute for speedy justice.
D9u 13y ago
Sadly, in today's upper levels of government, the term "conflict of interest" has been shunted aside for varying reasons. Also, secret court proceedings are not what one would expect from a nation which constantly cites "moral high ground" as justification for violating its mandate. Imagine if the Watergate scandal had been squelched by citing "state secrets."
rpgmaker 13y ago
Am I the only one getting "Resource not found" on the arstechnica site?
- nwh 13y ago
  I'm not seeing any errors with it, but here's a mirror anyway — http://archive.is/Tm6oG http://archive.is/Tm6oG
Mordor 13y ago
TIL secret courts breed lazy judges
chris_wot 13y ago
The only thing flawed about the argument that no corporation has ever challenged a FISA order is that it requires a corporation to challenge a FISA order. Since when were corporations meant to be the representatives of justice? Since when have they been upholders of citizens rights?
talmand 13y ago
Of course they didn't challenge it, they had no motivation to do so. The whole thing was secret, handing over data was no big deal because no one was to know they did it in the first place. If it wasn't for various whistle-blowers over the years they would probably still be handing over data without comment. To me, the judge's statement just reinforces the notion that everyone involved had little or no concerns over anyone's rights that were caught up in this huge net. But now that it's becoming common knowledge that people's data get handed over, I wouldn't be surprised if challenges start happening. Especially when overseas contracts start drying up because no one in their right mind would store their data with a US firm.
ctdonath 13y ago
"Chilling effect" is a very real & recognized legal principle. When The Government™ shows up at your door with near-infinite persuasive & prosecutorial resources, with nods towards teams of heavily armed men and bureaucrats with crates of red tape, telling you in no uncertain terms YOU WILL DO X, and reminding you frequently that this very meeting itself constitutes a National Secret™, with clear and implied statements that while you may have legal alternatives the slightest contact with anything construed as illegal (starting with the reply "no") will bring all this power crashing down on your corporate & private life, one does tend to comply - regardless of likely after-the-fact "well you could have done this" conversations. So it goes with many Constitutional rights. You can fight for your rights, but "fight" isn't some lofty abstract term, it's "cause serious damage to another while they do the same to you, until one of you is persuaded by harm & further threat thereof to give up."
deleted 13y ago
[deleted]

125 points by rosser 13y ago

Goes without saying that the system is broken. But I'd imagine it's easier/cheaper to just hand over the data than challenge the request and get lawyers involved…

bediger4000 13y ago
Can a receipient of a FISA court order even get their own lawyers involved? Given the kind of hair splitting, finely honed definitions and word games going on in Congressional testimony, I wouldn't put it past FISA judges/spokesmodels/whatever to claim that nobody ever challenged an order when there's actually no procedure to perform such a challenge, and no attempts to challenge have even been recognized.
- DannyBee 13y ago
  1. Yes, it's specifically allowed by statute to talk to your lawyer about it 2. The FISC judge is correct in his statement. For that type of order, their is a procedure, it's documented in both the statute and the rules, and has a documented appeals procedure that leads to the supreme court. He's not a spokesmodel, he's a federal judge. While some small percentage are certainly political appointees, this one, and others, are more deserving of respect than you are giving them.
  - rosser 13y ago
    Your comment — particularly your final graf — reads to me like a big ol', "Don't hate the player, hate the game." And while, for some games, I think that's a completely legitimate attitude, I really have a lot of trouble swallowing it in this context. As a Federal judge, he has tremendous power to effect change in the matters that come before his bench, and yet FISC is, to all appearances, a rubber stamp with a security clearance. To the extent that's actually the case, I don't think hating the player is unwarranted, as it's exactly that kind of player who has made — and continues to make, with every unquestioned encroachment — the game the bowl of suck that it is.
    - DannyBee 13y ago
      It's not really "don't hate the player, hate the game" at all. It's "don't be an asshole to a guy you've never met and have no idea about, and assume bad faith on his part". FISC is not a rubber stamp, as explained in that very article. As a federal judge, he is bound by the rules of the FISC court, and the legal statutes that enacted it and set the standards they must follow. He just went out of his way to say, in public: "Just FYI, you guys are more than welcome to challenge this. I believe you have the authority to do so, and here is the statute I believe grants you that authority". Instead of saying "hey, great look, even the main judge thinks we have a right to challenge this", y'all are jumping on him like he's lying through his teeth. He has no right to challenge these orders himself. He can modify them, but only within the bounds of the law. As I said, his job is not to make law, but to be bound by the statutes that rule his court. Have you ever stopped for a second to think that maybe this is his way of trying to explain to people how to get this stuff shut down? You know, instead of assuming he's just trying to lie to save face. I like to give people the benefit of the doubt. Maybe he is lying to save face. Maybe he doesn't really give a shit. Most federal judges I know are better than that. I may not always agree with their ideologies or rulings, but just about every one i've ever met tries to do the right thing. Whatever you may believe, they certainly aren't mouthpieces for any administration. Hell, even his wikipedia page will tell you that.
      - rosser 13y ago
        First, where in what I said do you infer an accusation of lying? I never said, nor even thought such a thing. To the contrary, I'm actually rather thrilled to see someone that deeply involved in this nastiness stand up and say what he's just said. That doesn't excuse his participation to date one whit, however. He's as culpable as anyone else who actively and willingly participates in the surveillance state for the fact that we have a surveillance state, he's directly and personally responsible for whatever abuses of the law have passed across his bench, and I'm willing to bet everything I have that such abuses have crossed his bench, and been approved by him. Second, how exactly does one not characterize a situation in which, "In short, it appears that the government only submits applications that it knows will get approved—after having first gotten them modified to meet that approval," as more or less a rubber stamp?

joe_the_user 13y ago

A friend of might received rather extreme abuse while working in a classified position. The only potential means he had to deal with it was finding a competent labor lawyer who also had clearance. Naturally, the easier course of action was to write off the experience. Secrecy and unquestionable authority breed contemptuous disregard for your fellow humans. Yeah, "Nobody ever challenged this", most likely because of the high barriers to challenge, etc. Basically, not only is FISA broken but a society that tolerates a "classified" area of work and information is doomed to have that secret area metastasize and suck the life out of it.

yuhong 13y ago
I wrote these on PRISM and Google: https://news.ycombinator.com/item?id=6054532 https://news.ycombinator.com/item?id=6054532 https://news.ycombinator.com/item?id=6078124 https://news.ycombinator.com/item?id=6078124
- josh2600 13y ago
  I think you're being downvoted for linking to your comments without explaining why they're relevant. I would assume, though, given their scale, that someone at one of these companies has the necessary clearance to contest. I think FISA is being intentionally facetious, or rather technically. I find it impossible to believe no one has attempted, but find it plausible that the government has yet to give anyone standing to sue. Finally, given the sovereign clause, I don't see why the government has to accept a lawsuit against them.

coldcode 13y ago

Even if they did how would we ever find out about it?

anigbrowl 13y ago
Declassification, the same way we find out about a lot of things, albeit some time later.
- bediger4000 13y ago
  Yes, and we all know that everything is prompty declassified after it passes its freshness date. Eventual declassification is a pretty poor substitute for speedy justice.

D9u 13y ago

Sadly, in today's upper levels of government, the term "conflict of interest" has been shunted aside for varying reasons. Also, secret court proceedings are not what one would expect from a nation which constantly cites "moral high ground" as justification for violating its mandate. Imagine if the Watergate scandal had been squelched by citing "state secrets."

rpgmaker 13y ago

Am I the only one getting "Resource not found" on the arstechnica site?

nwh 13y ago
I'm not seeing any errors with it, but here's a mirror anyway — http://archive.is/Tm6oG http://archive.is/Tm6oG

Mordor 13y ago

TIL secret courts breed lazy judges

chris_wot 13y ago

The only thing flawed about the argument that no corporation has ever challenged a FISA order is that it requires a corporation to challenge a FISA order. Since when were corporations meant to be the representatives of justice? Since when have they been upholders of citizens rights?

talmand 13y ago

Of course they didn't challenge it, they had no motivation to do so. The whole thing was secret, handing over data was no big deal because no one was to know they did it in the first place. If it wasn't for various whistle-blowers over the years they would probably still be handing over data without comment. To me, the judge's statement just reinforces the notion that everyone involved had little or no concerns over anyone's rights that were caught up in this huge net. But now that it's becoming common knowledge that people's data get handed over, I wouldn't be surprised if challenges start happening. Especially when overseas contracts start drying up because no one in their right mind would store their data with a US firm.

ctdonath 13y ago

"Chilling effect" is a very real & recognized legal principle. When The Government™ shows up at your door with near-infinite persuasive & prosecutorial resources, with nods towards teams of heavily armed men and bureaucrats with crates of red tape, telling you in no uncertain terms YOU WILL DO X, and reminding you frequently that this very meeting itself constitutes a National Secret™, with clear and implied statements that while you may have legal alternatives the slightest contact with anything construed as illegal (starting with the reply "no") will bring all this power crashing down on your corporate & private life, one does tend to comply - regardless of likely after-the-fact "well you could have done this" conversations. So it goes with many Constitutional rights. You can fight for your rights, but "fight" isn't some lofty abstract term, it's "cause serious damage to another while they do the same to you, until one of you is persuaded by harm & further threat thereof to give up."

deleted 13y ago

[deleted]