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FISA court rules NSA can resume bulk data collection

nytimes.com

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Re: FISA court rules NSA can resume bulk data collection

#11

Post by rhino369 »

jMyles wrote: post #3

I 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…

To add to what others have already said, the Second Circuit stayed the order that would prevent the NSA from doing the calls. This means the Second Circuit didn't order them to stop.

Since the FISA court isn't under the Second Circuit, it is under no obligation to follow second circuit holdings.

Further, the FISA court distinguishes from the situation in the Second Circuit, but that's not all that persuasive to me.

Re: FISA court rules NSA can resume bulk data collection

#12

Post by jMyles »

rayiner wrote: post #5
jMyles wrote: post #3

I 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…

The federal appellate courts other than the fed circuit have regional jurisdiction. Their decisions are not binding authority on courts outside their own regions.

As I understand it, that's not at issue here. The rulings of the circuit and district courts are binding on actors in their jurisdictions - the FISC can't (or at least, I didn't understand it to be legal for them to) come in and rule that conduct deemed unconstitutional by a circuit court on a particular actor (ie, the Second Circuit ruling on conduct by the NSA).

Re: FISA court rules NSA can resume bulk data collection

#13

Post by fru2013 »

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).

Re: FISA court rules NSA can resume bulk data collection

#14

Post by jMyles »

dogma1138 wrote: post #4
jMyles wrote: post #3

I 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…

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.

Re: FISA court rules NSA can resume bulk data collection

#15

Post by unclebucknasty »

droopyEyelids wrote: post #6

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.

Re: FISA court rules NSA can resume bulk data collection

#16

Post by jMyles »

ikeboy wrote: post #7
jMyles wrote: post #3

I 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…

Did you read the opinion linked in the article? https://www.documentcloud.org/documents/2124483-br-15-75-mis... The actual arguments start from 10 and go to 12. The quote about Second Court not being binding on them is from page 14, and some problems they had with the Second Court's analysis are on page 16, including pointing out that some of the claims of the Second Court are no longer true after the Freedom Act was…

Yeah, it's really oddly worded. Whether or not the 2nd Circuit is binding on FISC is not at issue. The question is whether or not the 2nd Circuit is binding on the NSA (or at least NSA activities within its geographical jurisdiction).

Re: FISA court rules NSA can resume bulk data collection

#17

Post by jMyles »

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).

I 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.

Re: FISA court rules NSA can resume bulk data collection

#18

Post by 3pt14159 »

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…

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.

Re: FISA court rules NSA can resume bulk data collection

#20

Post by coldcode »

ikeboy wrote: post #8
afarrell wrote: post #2

One 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 t…

From 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.

Yet no one has standing to request the Supreme Court look into this. Ah the joys of secret courts.
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