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FISA court rules NSA can resume bulk data collection

nytimes.com

31–40 of 157 posts

Re: FISA court rules NSA can resume bulk data collection

#31
post #14

Earlier quoted context omitted.

The constitution only mandates to establish a single supreme court, all federal courts were established by acts of congress.

Poorly 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.

The judges are listed on the court's website: http://www.fisc.uscourts.gov/current-membership. They're regular U.S. District Court judges appointed to the court for a specified term.

Re: FISA court rules NSA can resume bulk data collection

#32
post #14

Earlier quoted context omitted.

The constitution only mandates to establish a single supreme court, all federal courts were established by acts of congress.

Poorly 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.

The 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.

Re: FISA court rules NSA can resume bulk data collection

#33
The 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).

Re: FISA court rules NSA can resume bulk data collection

#34
post #9

Just 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…

Those numbers don't mean much without the ability to compare them to the acceptance rate of warrants in other criminal courts.

I haven't found a single statistic on that seems that no one actually is keeping or publishing it, but every article I've read seems to point that denying warrants is very rare in all jurisdictions.

e.g.: http://tucson.com/news/local/crime/rejection-of-search-warra...

I mean in California police officers can request a warrant and have it signed digitally, and they even got a fucking app for that.

When you automate a system to a point when a police officer can get a warrant on his Ipad i some how don't think that many of them are denied.

Re: FISA court rules NSA can resume bulk data collection

#35
post #13

I 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).

It 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.

Re: FISA court rules NSA can resume bulk data collection

#36
post #13

I 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).

If 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.

Re: FISA court rules NSA can resume bulk data collection

#37

I 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.

Should 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.

Yes, 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.

Re: FISA court rules NSA can resume bulk data collection

#40
post #26

Earlier quoted context omitted.

Also 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.

people 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.

It'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-br...

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