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The NSA doesn’t obey laws. Or, more precisely, we don’t know if they obey laws. Or, when we think a law limits their behavior, it will be challenged, where ‘ch

The NSA doesn’t obey laws. Or, more precisely, we don’t know if they obey laws. Or, when we think a law limits their behavior, it will be challenged, where ‘challenged’ means ignored until it is discovered, then tried in secret. Functionally, laws don’t matter here. Their existence, and their content, are not predictive of the NSA’s behavior.

john_b 12y ago
You are ignoring a few decades of history in which successful court challenges have curtailed some NSA excesses. It's easy to forget that, while the capabilities of the NSA have increased in the past decade, intelligence agencies today have more attention directed at them than in the past, and thus are more sensitive to any public perception that they are acting in an illegal manner.
- declan 12y ago
  >You are ignoring a few decades of history in which successful court challenges have curtailed some NSA excesses Can you list these "successful court challenges" that have taken place in open court in the last generation? Say, 30 years? You're not talking about the Sixth Circuit decision in 2007 tossing out the attempt to challenge NSA warrantless surveillance, I take it? :) Edit: Or the 9th Circuit affirming the dismissal of another case in June 2013. Or the Supreme Court in February 2013 holding plaintiffs did not have standing to sue the NSA. Or EFF's Jewel case, which is ongoing six years later without resolution. Or the Supreme Court in November 2013 rejecting EPIC's mandamus petition in NSA lawsuit. Etc.
  - vezzy-fnord 12y ago
    They're probably referring to the findings presented by the Church Committee. What was interesting was that they were talking about how intelligence agencies had the resources to impose "total tyranny"... back in 1975. I'm not sure what actual effects did it have concerning intelligence reform, though. Evidently nothing major.
    - declan 12y ago
      Yep, but (a) that was 40 years ago, not within the last 30. and (b) that was Congress, not the courts, and (c) as you say, the effects were not as lasting as many observers thought.
  - mikecb 12y ago
    Here's a few: http://www.lawfareblog.com/2012/05/more-on-clapper/ http://www.lawfareblog.com/2012/05/more-on-clapper/
    - declan 12y ago
      That Lawfare post is talking about the same case I mentioned, Clapper. It was posted in 2012, half a year before the Supreme Court held in February 2013 that plaintiffs did not have standing to sue the NSA. If anything, that Lawfare post punctuates how the courts have been ineffective in curtailing NSA even before the Clapper decision, and how Congress has expanded surveillance. Excerpts: "in its first-ever decision in In re Sealed Case, the FISA Court of Review held that such legislation [Patriot Act] did not itself violate the Fourth Amendment..." "Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..." Nice try, though. Still waiting for that list of successful court challenges that reined in the NSA. :)
      - mpyne 12y ago
        > "Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..." If we take it as true that governments in general in the U.S. are not so much as allowed to incidentally pick up communications then it seems like things such as municipal-run ISPs would have to be illegal by definition. Additionally, it's not the job of FISA (or its Review Court) to overturn Supreme Court precedent, and such precedent has long held that foreign-targeted communications can be intercepted unilaterally under conditions laid out by law (even if such comms are part of a larger conversation also involving U.S. persons). We can argue that this kind of result makes no sense in light of the Internet, and that therefore the FISA Court construct is inadequate in that regard (since you can't exactly easily appeal this stuff to the Supreme Court since it won't work its way through the normal court systems). But that doesn't mean the FISA Court of Review decision was incorrect either, or that Congress doesn't have the Constitutional ability to pass stuff such as PAA 2007. The courts and law need to catch up to the Internet, sure, but at the same time that's a very tough nut to crack in general since anything regulating any part of the Internet is going to touch many different competing interests all at once.
vajorie 12y ago
> Functionally, laws don’t matter here. Their existence, and their content, are not predictive of the NSA’s behavior. Rate this comment irrelevant. Not new and definitely not a reason for inaction.
- mwsherman 12y ago
  My point is that it’s a mistake and a distraction to believe this law is “action”.
- WaxProlix 12y ago
  But maybe a reason for different action, no?
mpyne 12y ago
> Or, more precisely, we don’t know if they obey laws. Do you know that any agency in the U.S. obeys laws? Do you verify this everyday, across the entirety of the USG? That was always the striking thing to me about these leaks as compared to the NSA investigated by the Church Committee, is that in this case you see an NSA actually trying to comply with the law. This is why MUSCULAR is only overseas, or why only phone metadata was being collected, and only after legal approval by FISC and the FAA by Congress in 2011, and why all their slides talk about "USPERs" and non-USPERs. If you want change in what NSA is permitted to do then the law is a great place to start. If nothing else it would make it clear to the rank-and-file NSA employee (the same ones Snowden went to bat for on his NBC interview) that there are new, clear boundaries instead of reliance on court orders and Supreme Court precedents.
- mwsherman 12y ago
  This is a good point.
- lostlogin 12y ago
  NSA trying to comply with laws? What? No. Trying to comply with US laws maybe. The rest of us out here that make up the majority of the world have the NSA breaking our laws with impunity. We don't get a say or a vote, we just get to hear the anguished cries of Americans worried that US laws may have been broken.
  - mpyne 12y ago
    > The rest of us out here that make up the majority of the world have the NSA breaking our laws with impunity. When the rest of the world starts upholding things like First and Second Amendment principles even for their own citizens, I will worry more about the U.S. reciprocating by extending Fourth Amendment principles to those who seek to harm the people of the U.S. But that is still a long ways off it seems. Are women in takfiri-controlled areas able to freely protest or even attend schools yet? The ironic thing is that you say you don't even "get a say", but you do. Our President has had to focus attention on foreign intelligence programs to try and appease non-American audiences, precisely because of the fact that non-Americans "get a say", which is something that the Chinese and Russian leadership will never have to worry about. Do you protest SORM to Putin? If you've ever (directly or indirectly) used a .ru site, or a site hosted in Russia, you should.

john_b 12y ago

You are ignoring a few decades of history in which successful court challenges have curtailed some NSA excesses. It's easy to forget that, while the capabilities of the NSA have increased in the past decade, intelligence agencies today have more attention directed at them than in the past, and thus are more sensitive to any public perception that they are acting in an illegal manner.

declan 12y ago
>You are ignoring a few decades of history in which successful court challenges have curtailed some NSA excesses Can you list these "successful court challenges" that have taken place in open court in the last generation? Say, 30 years? You're not talking about the Sixth Circuit decision in 2007 tossing out the attempt to challenge NSA warrantless surveillance, I take it? :) Edit: Or the 9th Circuit affirming the dismissal of another case in June 2013. Or the Supreme Court in February 2013 holding plaintiffs did not have standing to sue the NSA. Or EFF's Jewel case, which is ongoing six years later without resolution. Or the Supreme Court in November 2013 rejecting EPIC's mandamus petition in NSA lawsuit. Etc.
- vezzy-fnord 12y ago
  They're probably referring to the findings presented by the Church Committee. What was interesting was that they were talking about how intelligence agencies had the resources to impose "total tyranny"... back in 1975. I'm not sure what actual effects did it have concerning intelligence reform, though. Evidently nothing major.
  - declan 12y ago
    Yep, but (a) that was 40 years ago, not within the last 30. and (b) that was Congress, not the courts, and (c) as you say, the effects were not as lasting as many observers thought.
- mikecb 12y ago
  Here's a few: http://www.lawfareblog.com/2012/05/more-on-clapper/ http://www.lawfareblog.com/2012/05/more-on-clapper/
  - declan 12y ago
    That Lawfare post is talking about the same case I mentioned, Clapper. It was posted in 2012, half a year before the Supreme Court held in February 2013 that plaintiffs did not have standing to sue the NSA. If anything, that Lawfare post punctuates how the courts have been ineffective in curtailing NSA even before the Clapper decision, and how Congress has expanded surveillance. Excerpts: "in its first-ever decision in In re Sealed Case, the FISA Court of Review held that such legislation [Patriot Act] did not itself violate the Fourth Amendment..." "Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..." Nice try, though. Still waiting for that list of successful court challenges that reined in the NSA. :)
    - mpyne 12y ago
      > "Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..." If we take it as true that governments in general in the U.S. are not so much as allowed to incidentally pick up communications then it seems like things such as municipal-run ISPs would have to be illegal by definition. Additionally, it's not the job of FISA (or its Review Court) to overturn Supreme Court precedent, and such precedent has long held that foreign-targeted communications can be intercepted unilaterally under conditions laid out by law (even if such comms are part of a larger conversation also involving U.S. persons). We can argue that this kind of result makes no sense in light of the Internet, and that therefore the FISA Court construct is inadequate in that regard (since you can't exactly easily appeal this stuff to the Supreme Court since it won't work its way through the normal court systems). But that doesn't mean the FISA Court of Review decision was incorrect either, or that Congress doesn't have the Constitutional ability to pass stuff such as PAA 2007. The courts and law need to catch up to the Internet, sure, but at the same time that's a very tough nut to crack in general since anything regulating any part of the Internet is going to touch many different competing interests all at once.

vajorie 12y ago

> Functionally, laws don’t matter here. Their existence, and their content, are not predictive of the NSA’s behavior. Rate this comment irrelevant. Not new and definitely not a reason for inaction.

mwsherman 12y ago
My point is that it’s a mistake and a distraction to believe this law is “action”.
WaxProlix 12y ago
But maybe a reason for different action, no?

mpyne 12y ago

> Or, more precisely, we don’t know if they obey laws. Do you know that any agency in the U.S. obeys laws? Do you verify this everyday, across the entirety of the USG? That was always the striking thing to me about these leaks as compared to the NSA investigated by the Church Committee, is that in this case you see an NSA actually trying to comply with the law. This is why MUSCULAR is only overseas, or why only phone metadata was being collected, and only after legal approval by FISC and the FAA by Congress in 2011, and why all their slides talk about "USPERs" and non-USPERs. If you want change in what NSA is permitted to do then the law is a great place to start. If nothing else it would make it clear to the rank-and-file NSA employee (the same ones Snowden went to bat for on his NBC interview) that there are new, clear boundaries instead of reliance on court orders and Supreme Court precedents.

mwsherman 12y ago
This is a good point.
lostlogin 12y ago
NSA trying to comply with laws? What? No. Trying to comply with US laws maybe. The rest of us out here that make up the majority of the world have the NSA breaking our laws with impunity. We don't get a say or a vote, we just get to hear the anguished cries of Americans worried that US laws may have been broken.
- mpyne 12y ago
  > The rest of us out here that make up the majority of the world have the NSA breaking our laws with impunity. When the rest of the world starts upholding things like First and Second Amendment principles even for their own citizens, I will worry more about the U.S. reciprocating by extending Fourth Amendment principles to those who seek to harm the people of the U.S. But that is still a long ways off it seems. Are women in takfiri-controlled areas able to freely protest or even attend schools yet? The ironic thing is that you say you don't even "get a say", but you do. Our President has had to focus attention on foreign intelligence programs to try and appease non-American audiences, precisely because of the fact that non-Americans "get a say", which is something that the Chinese and Russian leadership will never have to worry about. Do you protest SORM to Putin? If you've ever (directly or indirectly) used a .ru site, or a site hosted in Russia, you should.