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FISA court rules NSA can resume bulk data collection
- afarrell 11y agoOne thing I don't understand about the updates to the law governing the FISA court: How would there be any challenge to its rulings? Without a challenge, how would it be appealed to SCOTUS? Without a public appeal, how would the legal community be able to debate the merits of different cases as they do with other constitutional law issues? It is like if the FBI was doing the bulk collection but never using the data to prosecute anyone: there isn't any place for the exclusionary rule* to restrain the prosecution. * this is a good intro for the unfamiliar: http://lawcomic.net/guide/?p=1585 http://lawcomic.net/guide/?p=1585
- ikeboy 11y agoFrom the article: >The surveillance court is subject to review by its own appeals panel, the Foreign Intelligence Surveillance Court of Review. Both the Second Circuit and the surveillance review court are in turn subject to the Supreme Court, which resolves conflicts between appeals courts.
- coldcode 11y agoYet no one has standing to request the Supreme Court look into this. Ah the joys of secret courts.
- ikeboy 11y agoIf I'm reading it right, the plaintiff here was appointed an "interested party" in some legal sense, which would give them the right of appeal? Am I misunderstanding that?
- tootie 11y agoThe Second Circuit clearly thought they had standing. SCOTUS can disagree though and punt on un the underlying issue.
- jMyles 11y agoI don't understand how the FISA court, created by Congress outside the bounds of the appointment clause, for the specific task of approving or rejecting surveillance warrants, can so casually set aside the rulings of an actual court. I mean, this is really simple stuff - like Marbury vs. Madison simple. Isn't this precisely what the Church committee (out of which FISA grew) intended to prevent? edit: Clarified first paragraph
- dogma1138 11y agoThe constitution only mandates to establish a single supreme court, all federal courts were established by acts of congress.
- jMyles 11y agoPoorly worded on my part. By "actual" Court, I meant a court whose personnel are appointed pursuant to the appointments clause of the US Constitution. Sure, they're all created by congress, but the District and Circuit courts have clear, long-established, transparent mechanisms for figuring out who is on the court.
- caf 11y agoPerhaps "Article III court"?
- rayiner 11y agoThe judges are listed on the court's website: http://www.fisc.uscourts.gov/current-membership http://www.fisc.uscourts.gov/current-membership. They're regular U.S. District Court judges appointed to the court for a specified term.
- dogma1138 11y agoThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office. Congress has an authority to create courts as they see fit, now FISA might not be perfect it might be a complete disaster, but it's not unique as all modern courts have issues on being completely transparent at all times. For example court orders such as search and seizure, peak and enter, wiretap etc' cant be public for obvious reasons since you can't argue that when you need to tap some one's phone to gather enough evidence to convict them of a crime you can make it public. You could also argue that such warrants violate the whole "innocent until proven guilty" posture by simply issuing a warrant before there's actual evidence of that a crime has been committed, or in fact it allows the state to force people to incriminate them selves in future crimes. Now back to the FISA court the hearings and it's orders on specific efforts against specific targets can't be public, some oversight and process transparency might be possible but you can't make a court like that public. That said the US is pretty much the only country which actually has a court like that, everyone spies, not to the extent that the US does but no one else have those resources, but I haven't heared about any other country in which the intelligence services have not only executive/legislative oversights but also judicial.
- droopyEyelids 11y agoI worry sometimes when I hear people say things like "What is the point, as soon as we overcome something or strike a victory, the other side starts looking for ways to undermine or overcome it" That is true, but it's almost the universal constant in life. The fight for good is never won... it's a continual struggle, a process- not fixed condition to be achieved.
- unclebucknasty 11y agoShould we so easily accept that premise? Sure, we must guard against an erosion of rights. But, it seems that in some cases, we are guarding against subversion of the very tools emplaced to aid us in that objective.
- lugg 11y agoYes, the premise is right, the "some cases" you have now, are subversion, definately, the problem is, they only gained a foothold purely because you failed to guard your rights from erosion in the first place.
- dmix 11y agoJust a reminder about FISA's historical performance: > Between 2001 and 2012, the FISA judges approved 20,909 surveillance and property search warrants - an average of 33 a week. During that 12-year period, the judges denied just 10 applications. Prosecutors withdrew another 26 applications. > From 2007 to 2012, FISA judges also approved 532 "business record" warrant applications, the category used in the order that directed Verizon to release metadata on all phone calls inside the United States. No business record warrants were rejected. and, on the judges perception of themselves: > Walton, the senior judge on FISA, declined to be interviewed. In a statement, he said: "The perception that the court is a rubber stamp is absolutely false. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court's authorizations comport with what the applicable statutes authorize." http://www.reuters.com/article/2013/06/21/us-usa-security-fisa-judges-idUSBRE95K06H20130621 http://www.reuters.com/article/2013/06/21/us-usa-security-fi...
- 3pt14159 11y agoAlso the FISA court has been called an "almost parallel supreme court" by the New York Times, and given that it only hears one side of a case, makes this all the more troubling.
- rtpg 11y agopeople have talked about only hearing one side of the case, but that's the same for all warrant proceedings. FISA court isn't about declaring people guilty, it's about declaring whether there's reasonable suspicion.
- SoftwareMaven 11y agoIt's more than just warrants, it's any information about information gathering at all. https://www.eff.org/deeplinks/2014/05/new-eff-aclu-amicus-brief-argues-court-right-order-disclosure-fisa-materials https://www.eff.org/deeplinks/2014/05/new-eff-aclu-amicus-br...
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- shit_parade2 11y agoOh surprise, secret court rules in favor of continuing secret laws to assist in secret data collection. American Justice is a farce, illegitimate, and to be utterly ignored.
- fru2013 11y agoI personally think that creating laws to prevent government surveillance is a pointless endeavor. The NSA has ignored and broken laws in the past, why would we expect them to follow new ones that are passed? The only way to prevent surveillance is with a technical solution (encryption), not a legal solution (more laws).
- jMyles 11y agoI agree, with a caveat: The encryption game is rigged since the NSA and other government actors are able to use public funds to sabotage it. So the legal angle is still important.
- jjoonathan 11y agoAgreed. With the ability to carry out correlation attacks and the proven information content of metadata, encryption can't provide a complete "technological solution."
- icanhackit 11y agoThe only way to prevent surveillance is with a technical solution (encryption), not a legal solution (more laws). I'd say both have their place however focus on protecting the legality of encryption, not on making it illegal to spy. Bolster security by design with law, don't use law to haphazardly stop spooks from doing spooky things.
- rayiner 11y agoIt costs political capital to ignore the law. Dig into the leaks that have come out. Why so much talk about meta data and U.S. persons and minimization? If they were just ignoring the law, they wouldn't bother with any of that. They do it because the law gives them leeway along certain dimensions, and it costs them much less political capital if they can justify their activities as sticking to those rules.
- superuser2 11y agoIf the NSA's domestic spying is illegal, it's only on a technicality. Congress explicitly authorizes it, and the Supreme Court explicitly finds that the 4th amendment doesn't protect 3rd party records. I'm sure it's violated some specific regulations here and there, but on the whole, spying on everything everyone says and does is not illegal. Which is insane. It absolutely should be.
- hyperion2010 11y agoAnyone surprised that a fake court with no accountability says that the organizations it oversees can do what they want?
- shit_parade3 11y agoOh surprise, secret court rules in favor of continuing secret laws to assist in secret data collection. American Justice is a farce, illegitimate, and to be utterly ignored.
- codezero 11y agoThis infuriates me, as I assume it infuriates a lot of people. What the fuck can we do, short term, and long term?
- codezero 11y agoI was seriously hoping that someone had some feedback. Quite telling that there's basically nothing to be done.
- rtpg 11y agoThe reasoning here is pretty sound: - In any case the USA FREEDOM Act explicitly rules out bulk collection by the NSA in 6 months ( it's done by the phone companies afterwards, not sure if that's really any better) - The Second Circuit ruled that Section 215 of the Patriot Act was not intended to allow for mass surveillance. But they did not issue an injunction, saying that further action is dependent on the USA FREEDOM Act - Congress passed the act _with this 6 month period_ and otherwise similar language, basically saying "We know this is interpreted as mass surveillance, and we are not contradicting that" The second circuit ruling was not based off of constitutional interpretation, but off of the interpretation of the law. By passing the Freedom act with that 6 month period, Congress has made clear that the "mass surveillance" interpretation is acceptable to them (again, for that 6 month period).
- joshuak 11y agoAnd yet how does the FISA court have jurisdiction in the matter at all? My understanding was that the FISA court existed solely for the purpose of evaluating the validity of warrants that if applied for in a general court would prove a natural security risk.
- rtpg 11y agoIANAL, but I think this is to say whether the FISC will accept any warrants of a "bulk collection" style for this 6-month period. If their opinion went the other way, they could rescind previous bulk collection warrants, which means the NSA would have to stop their activity.
- rayiner 11y agoThe FISA court does not handle criminal warrants. It was created to add a layer of judicial oversight for foreign power surveillance activities that previously did not require warrants.
- drjesusphd 11y agoOf course they did. They're the NSA's personal court as far as I can tell.
- drjesusphd 11y agoI'm really curious what skeletons the FISA judges have in their closets. Aren't you? So what makes you think the NSA isn't?
- titzer 11y agoIt's really scary to think of the potential for abuse and corruption that such a treasure trove represents. Why should we trust them with the ability to essentially blackmail everyone?
- suprgeek 11y agoA non-adversarial system, with the Judge being a part of the Govt. Does anyone ever believe that this is anything other than the thinnest of fig leaves to cover the almost limitless power of the NSA to peep into people's private business?
- davesque 11y agoSo, would someone please hack the NSA's collection of bulk metadata and use it to reveal embarrassing information about politicians and NSA employees who support this program? Why hasn't this happened yet?
- harry8 11y agoWhy do you think it hasn't? People who drop endless resources into that kind of thing would use it for blackmail. Are you sure people aren't being blackmailed? How sure?
- titzer 11y agoThe solution is to use strong encryption all the time. When it becomes the standard mode of operation for the majority of people, protocols, and applications, it will no longer be suspicious (and therefore probable cause) for a warrant. Let them subpoena the encryption keys in court or burn CPU time trying to crack things they find important. Encryption will help resist indexing and slow down data mining, bringing back some of the privacy and freedom we used to have.
- themeekforgotpw 11y agoCaveat here that the crypto needs to actually be good, and key management and negotiation needs to be good, and key sizes and algo parameters need to be good, and that hardware needs to be good, and that key escrow systems ("Secure" Enclave, "Trusted" Platform Module) need to be good, you can not use computing services - everything must be done locally (the third party doctrine means that copies of this data must be kept to be made available), and the software stack must be kept secure and the hardware must be trusted.
- rebootthesystem 11y agoHelp elect Rand Paul and all of this is likely to stop. Any other candidate, regardless of party affiliation, is a vote for maintaining the current state of affairs. Not sure he'd be able to accomplish everything he talks about due to political realities. That said, the massive message sent by having him and his ideas pushed to the top of the stack would shake-up the political class. It's about letting them know, in very clear terms, what we want and what we are unhappy with.
- Trektillian 11y agoyou think they need a warrent? a few things occured to me recently: aluminum and mercury in vaxx are electrical/radio conductors coil spring matresses are actually 12x12 arrays of coils, googling coil array its for "parallel mri via rf" - university of colorado... its actually a large array of receiver antennas [google golay coils] people rub sodium aluminum on their armpits as a cheap anti-perspirent. what do you call electric/radio conductors on both sides of the heart? a pacemaker. dont believe me? check for yourself, apparently mercury was known toxic since 500BC [dartmouth.edu] and they still wont remove it from vaxx (they claim they use organic compound mercury now and its "different" and "non toxic" ;d thanks christian scientists!