FISA court rules NSA can resume bulk data collection • Hacker News Board

Re: FISA court rules NSA can resume bulk data collection

#41

Post by joshuak » Wed, Jul 01, 2015, 2:43 AM UTC

rtpg wrote: post #26

3pt14159 wrote: post #18

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.

Well in that case they've never had it with regard to 'all' business records of ANY kind. By definition there is no 'reasonable suspicion' in that context.

In fact there is no suspicion at all, and that lack of suspicion is the crux of the whole argument is it not?

Re: FISA court rules NSA can resume bulk data collection

#42

Post by AndrewKemendo » Wed, Jul 01, 2015, 2:46 AM UTC

dmix wrote: 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…

I can tell you from first hand experience that getting a warrant TO the FISA court from a sponsoring agency is a massive bureaucratic battle in and of itself.

Reason being, the agency powers that be don't want to send something up that will be disapproved because it takes significant time and effort of general counsel and leadership of these agencies to process, implement and track to maintain compliance - even if the warrant is reasonably broad.

So these numbers really don't mean anything in terms of just "blanket surveillance." The bar for even getting something to the court, in my experience, is incredibly high and you typically need very high ranking people to sign off on it. Which means your evidence, reason for doing and ensuring that it is within the boundaries of EO 12333 and a million other regulations, has to be pretty airtight.

Re: FISA court rules NSA can resume bulk data collection

#43

Post by joshuak » Wed, Jul 01, 2015, 2:48 AM UTC

rtpg wrote: post #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 FREE…

And 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.

Re: FISA court rules NSA can resume bulk data collection

#44

Post by SoftwareMaven » Wed, Jul 01, 2015, 2:48 AM UTC

superuser2 wrote: post #36

fru2013 wrote: 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.

The 3rd Party Doctrine made sense when you were physically handing something to somebody else or whispering something in somebody else's ear. In today's world, its interpretation is ludicrously antiquated.

Unfortunately, I don't forsee Congress doing much to solve this any time soon.

Re: FISA court rules NSA can resume bulk data collection

#45

Post by SoftwareMaven » Wed, Jul 01, 2015, 3:00 AM UTC

dogma1138 wrote: post #32

jMyles wrote: post #14

Earlier quoted context omitted.

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 a…

I'm not sure how much I trust a judicial oversight that has rejected somewhere in the range of 11 out of 34000 petitions. And it may not even be the FISA court's fault:

“The FISC is forced to rely upon the accuracy of the information that is provided to the court,” Judge Reggie Walton, chief judge of the Foreign Intelligence Surveillance Court (aka FISA court) wrote. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”[1]

The utter and complete lack of transparency around the FISA court pretty much makes it impossible to verify that information. We are left with the Executive saying, "Trust us, we won't do anything wrong".

1. http://www.washingtonpost.com/politics/court-ability-to-poli...

Re: FISA court rules NSA can resume bulk data collection

#46

Post by raquo » Wed, Jul 01, 2015, 3:10 AM UTC

fru2013 wrote: 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).

Technical solutions can and will be made illegal once they become a significant impedance to what the government wants to do, preventing the vast majority of people from using them.

Re: FISA court rules NSA can resume bulk data collection

#47

Post by suprgeek » Wed, Jul 01, 2015, 3:12 AM UTC

A 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?

Re: FISA court rules NSA can resume bulk data collection

#48

Post by rtpg » Wed, Jul 01, 2015, 3:16 AM UTC

joshuak wrote: post #43

rtpg wrote: post #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 FREE…

And 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.

IANAL, 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.

Re: FISA court rules NSA can resume bulk data collection

#49

Post by JoshTriplett » Wed, Jul 01, 2015, 3:36 AM UTC

AndrewKemendo wrote: post #42

dmix wrote: 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…

I can tell you from first hand experience that getting a warrant TO the FISA court from a sponsoring agency is a massive bureaucratic battle in and of itself. Reason being, the agency powers that be don't want to send something up that will be disapproved because it takes significant time and effort of general counsel and leadership of these agencies to process, implement and track to maintain compliance - even if th…

So, it's OK that the court is effectively a rubber-stamp, because we can trust that the agencies requesting warrants won't ask for things they don't think are reasonable?

No.

Re: FISA court rules NSA can resume bulk data collection

#50

Post by r00fus » Wed, Jul 01, 2015, 3:42 AM UTC

dmix wrote: 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…

> In a statement, he said: "The perception that the court is a rubber stamp is absolutely false."

Is it me? I just hear Nixon saying "I'm not a crook"...