
Warrantless wiretaps? Congress votes yes - zoowar
http://arstechnica.com/tech-policy/2012/12/warrantless-wiretaps-congress-votes-yes/
======
tptacek
You'd want to know but could not easily learn from this article that the
wiretaps in question here pertain to foreign intelligence surveillance (ie,
the government's authorization to spy on foreign entities).

You'd probably also want to know that the hotbutton issue actually at play in
this authorization is programmatic surveillance, which is what it sounds like:
automated collection and analysis of intercepts. The statutory problem with
programmatic intercepts is not that they're unlawful, but rather that FISA ss
written required individual suspicion for every captured communication, which
is logistically intractable for this application.

The law as written limits the application of programmatic surveillance
authorizations:

    
    
        An acquisition authorized under subsection (a)–
         
        (1) may not intentionally target any person known at the time of
        acquisition to be located in the United States;
         
        (2) may not intentionally target a person reasonably believed to be
        located outside the United States if the purpose of such acquisition
        is to target a particular, known person reasonably believed to be in
        the United States;
         
        (3) may not intentionally target a United States person reasonably
        believed to be located outside the United States;
         
        (4) may not intentionally acquire any communication as to which the
        sender and all intended recipients are known at the time of the
        acquisition to be located in the United States; and
         
        (5) shall be conducted in a manner consistent with the fourth
        amendment to the Constitution of the United States.
         

None of these points are to suggest that Wyden is wrong to be seeking
accountability for FISA warrants or that nobody should be concerned about
foreign surveillance or that there aren't real concerns that foreign
surveillance is capturing lots of domestic communication.

~~~
jellicle
And not one of those limits prohibits the NSA from copying all electronic
communications that enter or leave the United States and reading through them
all. Actually none of them prohibit the NSA from even reading wholly domestic
communications.

Nor do the limits themselves have any effect whatsoever, since there is no
oversight whatsoever to verify they are being followed and Congress has vowed
to immunize from liability everyone who violates them.

Americans: your government is reading your email. There are no qualifications
on that statement. Most especially if you are a dissident of any sort.

Just as a reminder, FISA was passed because in the early 1970's, a Senatorial
investigation showed that the FBI and NSA were illegally wiretapping the fuck
out of law-abiding peace groups and civil rights organizations. It is certain
that this is occurring today, again.

~~~
samstave
Just out of curiosity, assume one were to "wiretap" communications of any US
government agency, what laws would be used against this? If they can do
warrantless wiretaps, what differentiates their actions from anothers?

If they have no legal foundation for their actions, why should another's
actions be illegal for the same exact thing?

~~~
jellicle
There are plenty of laws. The problem here is that "law" doesn't mean anything
if there's no one to enforce it.

Will wiretapping laws be enforced against you? Yes. If you wiretap the
government they're going to do a Bradley Manning on you - solitary naked
confinement.

Will wiretapping laws be enforced against the President, the NSA, the FBI, the
CIA, Verizon executives, Level3 executives, and so on? No.

There's consensus among the Congress and Judiciary and President on those two
things.

And that's the problem. The words of the law are meaningless if enforcement
depends on who the violator is.

------
mtgx
I recommend reading Greenwald's long article on this. I think he explains
better than anyone else the _absurdity_ of the situation and the shamelessness
of the senators who voted for FISA and against the amendments to it:

[http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-
fei...](http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-feinstein-
obama-democrats-eavesdropping)

~~~
tptacek
If you want to have your biases confirmed, Greenwald is a very effective
mechanism for doing that.

~~~
justinschuh
The downmods are undeserved. Knowing a bit about this subject, I find
Greenwald's coverage to be some of the worst. People need to remember that
he's not a journalist and his goal is not to inform. He's a pundit making an
argument, and his arguments are often contrary to the facts.

~~~
joshuahedlund
Could you list some of the facts Greenwald has wrong in this article? He is
indeed good for confirming my biases, and he litters his posts with so many
quotes and links that it seems trustworthy, but I don't want to believe it if
it's false.

~~~
tptacek
The inaccuracies begin in the very first graf. Greenwald notes Obama's pledge
to filibuster any bill that indemnified telcos for participating in unlawful
surveillance, then moves the goalposts to suggest Obama abandoned that
objective by casting a yea vote that indemnified telcos for (a) lawful
surveillance (b) conducted under the color of an entirely new statute in (c) a
bill that mostly consisted of new limitations on FISA surveillance powers.

In other words, Greenwald invented an entirely new promise for Obama ("I will
filibuster any bill that indemnifies telcos _for any reason_ in concert with
surveillance _of any sort_ ") and then cited him for a "blatant, unblinking
violation of his own clear promise".

The lede of the cited article is incorrect, misleading, and pointlessly and
unproductively political.

Next graf: continuation of same broken argument. Still no details about what
the 2008 FISA Amendments Act actually said.

Next graf: invocation of Dick Cheney (the Democrats controlled the US Senate
when the FISA Amendments Act passed, and Jay Rockefeller is no political ally
of Cheney's; evidence for Cheney's actual input in the act: zero). Still no
details about what the 2008 FISA Amendments Act actually said.

Next graf: multiple misrepresentations about the purpose of the FISA court and
the conduct the Bush administration conducted that provoked outrage. Still no
details about the 2008 FISA Amendments Act, which, contra the actual text of
the article so far, specifically forbids the government from intentionally
targeting American persons or persons residing in America.

Next graf: dishonestly conflates Wyden's proposals for increased
accountability with Paul's showboating attempt to rewrite all existing rules
regarding electronic communications to exempt any such communications stored
in Google; in other words, foreign powers would be immune from spying so long
as they used GMail.

Next graf: begins with "consider how modest these amendments are". Continues
with suggestions that all the amendments he's mentioned are reasonable and
well-thought-out. Note again here that Wyden himself didn't offer an amendment
that required warrants for foreign intelligence or individualized suspicion
for programmatic intercepts.

Next graf: still not having directly explained any of the contents of the 2008
FISA Amendments bill, Greenwald predictably fails to mention that the NSA is
already forbidden by that bill from surveilling US targets when he mentions
Wyden's bill requiring warrants for surveillance of US targets. Here Greenwald
again carefully lawyers the words "US Soil" to implicate the idea that the NSA
is spying on Americans. Merkley's amendment, "modest" by clear implication,
suggests that a court whose purpose is to ensure that spies are spying on
foreign targets and not Americans should be compelled to release the details
on American spying to the public.

Next graf: no problems, straightforwardly confirms that the Administration
opposes amendments that would have the net effect of immediately halting in-
process foreign surveillance operations.

Next graf: Dianne Feinstein is now "conservative-Democratic" despite 100%
ratings from reproductive rights groups, environmental groups, the Human
Rights Campaign, arts groups, and, according to Votesmart, an 87% score from
the ACLU. Why? because Feinstein supports something Greenwald opposes, falling
into his no-true-Scotsman trap.

Next graf: Obama relied on Republicans (the "root of all evil") for an act
that passed overwhelmingly.

Next graf: the 2008 FISA Amendments act, which Greenwald still hasn't
discussed in detail, is now a "massive increase" in the government's
surveillance powers, when in fact by statute it limits those powers; the
"massive increase" comes from statutory authority to conduct programmatic
surveillance of foreign nationals without individual findings for each person
involved, a detail you can count on Greenwald not to share with you.

Next two grafs are quotes, but check your wallet after reading them.

Next graf: the 2008 FISA bill is flawed (sure), and Obama demands its renewal
"without a single change". No: Obama failed to support any of the amendments
offered for the bill, which is obviously not the same thing as a refusal to
entertain any changes to the act at all.

Next graf: Rand Paul's "modest" amendment to the PATRIOT act, which would have
exempted gun dealers (and nobody else) from PATRIOT-motivated subpoenas.
Greenwald doesn't take the time to tell you what this amendment was because he
would sound stupid explaining that in late December 2012. Also: Harry Reid is
Dick Cheney.

Next two grafs are quotes.

Next graf: "if you try to debate the PATRIOT act", for instance by proposing a
last-minute amendment exempting gun dealers from subpoenas in terrorism
investigations, Reid suggests you support the terrorists. Of course, in
neither of the preceding two quoted grafs does Reid say anything like this.

Next graf: plutocratic Dianne Feinstein, instrument of the national security
state (with an 87% ACLU scorecard) is similarly demonizing people with
concerns about the 2008 FISA Amendments act.

Here I give up. By all means. Cite Greenwald as if he's an objective source.

~~~
noibl
> moves the goalposts to suggest Obama abandoned that objective by casting a
> yea vote that indemnified telcos for (a) lawful surveillance (b) conducted
> under the color of an entirely new statute in (c) a bill that mostly
> consisted of new limitations on FISA surveillance powers.

On (a), how or why can one be indemnified for lawful activity?

The bill to which Greenwald refers does in fact grant retroactive immunity
from lawsuits seeking to show that the telco's participation was
_unlawful_.[1] Such lawsuits would occur because other parties to the activity
are protected by other mechanisms.

On (b), not sure what you mean by 'under the color of'. Hopefully not a
reference to retroactive legalisation.

(c) doesn't seem at all relevant to the specific point here.

[1] <http://www.fas.org/sgp/crs/intel/RL34600.pdf>

~~~
tptacek
I don't know how to respond to this comment, but would like to point out that
these CRS memos (I've read a bunch of them today) are so. great. We really
need to bump up the budget for the CRS.

~~~
noibl
That's OK. Sneering non-responses are also informative.

~~~
tptacek
I hope you're not saying I provided a sneering response. I was trying to
express appreciation for the link you offered.

~~~
noibl
Thanks for clarifying. In the context of not addressing the question over
Greenwald's credibility it looked sarcastic to me. You see, it's very
confusing if you express appreciation for something that seems to contradict
your point but then don't address the contradiction.

------
notatoad
It really scares me that the only issues able to find bipartisan support in
congress seem to be the bills that benefit _nobody_. The republicans and
democrats can never agree when there is good to be done, but when they get the
chance to fuck over the average citizen they're full of cooperation.

~~~
tptacek
It's hard to support a rational argument that FISA mechanisms benefit
"nobody". FISA's supporters in DHS and DOJ and DOD will point lawmakers to a
litany of cases where FISA-backed surveillance saved lives. The issue is
whether the cost of that surveillance is worth the increased safety.

~~~
notatoad
FISA isn't even about increased surveillance. If the DHS thinks they need more
surveillance to do their job, i trust them on that. FISA is about a lack of
oversight and due process on the surveillance. In the litany of cases where
FISA-backed surveillance saves lives, that same surveillance could have been
performed with proper oversight and regulation, rather than what basically
amounts to the whim of an investigator. The absence of regulation in this
instance benefits nobody (except those who would abuse it).

~~~
tptacek
I don't understand how FISA doesn't constitute oversight over foreign
surveillance, unless you're of the opinion that spies should be required to
get warrants to spy on foreigners.

These arguments always seem to point out how FISA is nothing like a criminal
court, as if that was a dispositive argument. FISA isn't supposed to be like a
criminal court. The purpose of FISA is to ensure that our foreign intelligence
services don't spy on our own citizens, and not much else.

------
guelo
For those in here defending no oversight of FISA, note that the 2008 FISA
revision included retroactive immunity for telecoms that had already been
caught illegally monitoring Americans. Since then the program has been
operating in complete secrecy, though there have been hints by Senators privy
to classified information that alarming levels of spying on ordinary Americans
is taking place. There have also been periodic leaks and whistle blowers
hinting at massive data gathering operations. I think there is a big
likelihood that ALL of our private electronic communications are being
illegally monitored. The complete opposition to congressional oversight is
another big hint that illegal activity is going on.

~~~
tptacek
No, it immunized telcos for assistance in surveillance under the color of the
2008 FISA Amendments act.

~~~
JensenDied
Retroactively for what was illegal before the act was passed.

------
charonn0
Sen. Feinstein, who I've voted for since I was 18, just lost a huge chunk of
the respect I had for her.

~~~
tptacek
Huh? Didn't Feinstein speak on the floor of the Senate 4 years ago in favor of
the exact bill they just renewed?

~~~
charonn0
It's either Feinstein or the GOP nominee (third parties need not apply to
Congress.) If the GOP were to nominate someone I agreed with more than her,
I'd vote for them. They haven't, so I haven't. The lesser of two evils, while
still evil, is at least less so.

~~~
tptacek
I'd vote for her too if I had to, but this wasn't a surprising move on her
part.

------
linuxhansl
Sigh. Some things will never change. Surveillance will only increase, slowly.
And like frogs in water that is slowly warmed we'll just all go along with it,
until we're nicely cooked.

* There is no terrorist lurking under every rock and behind every corner.

* 9-11 will repeat itself, because the context is changed now. Passengers can no longer assume that they will get away alive by complying, so they will fight back.

* These things do not have to be carried out in secrecy.

* These measures are ineffective anyway. Anybody who is able to pull of planting an impactful bomb somewhere in the US can most definitely also figure out how to securely communicate or how to hide a communication.

Edit: Formatting

------
toki5
I'm confused by the title of this article. Do FISA warrants not count as
warrants?

~~~
mtgx
Ron Wyden explained the "general warrants" in FISA:

[http://www.rawstory.com/rs/2012/12/27/sen-wyden-fisas-
genera...](http://www.rawstory.com/rs/2012/12/27/sen-wyden-fisas-general-
warrants-are-like-the-writs-of-assistance-the-founding-fathers-despised/)

It's not like normal warrants. It's warrant that is in effect for a year and
allows them to spy on everyone for that whole year. But of course they will
get it renewed every year. The idea of a "FISA Court" is a joke. The only
reason they even have that extra step is to say they "go through Court". But
it's just like not having it at all, because everything they are doing gets
approved. If FISA was a proper law, the warrant should be asked from any
regular Court.

~~~
tptacek
This comparison is flatly hyperbolic. The general warrants the framers
prohibited were a tool of harassment that essentially allowed agents of the
British government to tear apart the homes and belongings of anyone they saw
fit. You could be stopped, detained, intrusively searched, have soldiers enter
your house and dump the contents of your drawers and cabinets on the floor.

The similarity he's trying to invoke is between the probable cause requirement
of a criminal warrant and the lack of any targeting whatsoever in a general
warrant. It's obviously true that a FISA warrant is less targeted than a
domestic criminal warrant. But FISA warrants also also much less intrusive
than a criminal warrant, and, like airport searches (which are entirely
warrantless and nonetheless constitutional under administrative search), serve
a safety goal instead of a criminal evidence collection purpose.

FISA warrants also are targeted, unlike general warrants. The FISA court
exists to verify that actual investigations are being served by the warrants.
It's not hard to see why FISA warrants are rarely rejected: the government is
not actually in the habit of randomly surveilling people outside of actual
investigations.

Heading a series of unproductive responses off at the pass: seeing the logic
of the "yea" votes in the Senate on this issue _does not mean_ that I agree
with them.

~~~
justinschuh
I'll go one farther. I think the current FISA law is better than the previous
one. Yes, I do find the oversight provisions a bit weak, but it's better than
the absence of any legal framework for targeting non US persons communicating
via US systems.

------
urza
_Jacob Appelbaum 29C3 Keynote: Not My Department_

<http://youtu.be/QNsePZj_Yks>

~~~
safeaim
I sure hope this video gets more views, as this is one of the most important
privacy talks this year.

------
eschulte
Here is a more complete (but still short) article on the same topic [1], and
here are the records of the votes for the passage of this bill, and the
rejection of the three proposed ammendments (search for "00236" in the table)
[2]. The second link is useful if you want to see how your representative
voted.

[1] [http://www.nytimes.com/2012/12/29/us/politics/senate-
votes-t...](http://www.nytimes.com/2012/12/29/us/politics/senate-votes-to-
extend-electronic-surveillance-authority-under-fisa.html)

[2]
[http://www.senate.gov/legislative/LIS/roll_call_lists/vote_m...](http://www.senate.gov/legislative/LIS/roll_call_lists/vote_menu_112_2.htm)

------
ISL
Has FISA-authorized surveillance been found constitutional?

~~~
tptacek
It's never come before SCOTUS directly (a technical question about whether
lawyers can speculatively sue for information about specific cases was heard
in October and will be decided next year) but has survived in lower courts.

I'm obviously not an expert but the odds seem very high that warrantless
electronic surveillance of specific foreign targets will be found
constitutional; warrantless searches of Americans are constitutional in many
circumstances.

It's important to remember that "constitutional" is not a synonym for
"correct". There's a lot of things we could do that are constitutional but
ridiculous.

 _Late edit:_

Note that while it's hard to find FISA case law, it's not as hard to find case
law on the principles animating it. Here's SCOTUS, US v US District Court
1972:

    
    
        Moreover, we do not hold that the same type of standards and
        procedures prescribed by Title III are necessarily applicable to this
        case. We recognize that domestic security surveillance may involve
        different policy and practical considerations from the surveillance of
        "ordinary crime." The gathering of security intelligence is often long
        range and involves the interrelation of various sources and types of
        information. The exact targets of such surveillance may be more
        difficult to identify than in surveillance operations against many
        types of crime specified in Title III. Often, too, the emphasis of
        domestic intelligence gathering is on the prevention of unlawful
        activity or the enhancement of the Government's preparedness for some
        possible future crisis or emergency. Thus, the focus of domestic
        surveillance may be less precise than that directed against more
        conventional types of crime.

------
alisnic
This will sound silly, but after watching The Wire, I am tempted to support

~~~
tptacek
FISA warrants would not help McNulty at all; they cannot be used to target
people who reside in America.

~~~
utnick
This is not true, FISA warrants certainly target people who reside in America.
That is the whole point of them. If Bob in afghanistan is talking to Sue in
pakistan, no warrant is needed. The USA can spy on that all day. They only
need to go through the FISA warrant process when the communication is in
America.

Here is a good write up with details:
[http://belfercenter.ksg.harvard.edu/publication/19156/electr...](http://belfercenter.ksg.harvard.edu/publication/19156/electronic_surveillance_and_fisa.html)

~~~
tptacek
That's a great article, and thanks for it, but what I meant was that none of
the criminals in The Wire were FISA-eligible targets; even "The Greek" (who
was not Greek) was a lawful US resident.

~~~
notyettaken
Everyone is FISA-eligible: "which may include American citizens and permanent
residents suspected of being engaged in espionage and violating U.S. law on
territory under United States control" -
[http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillan...](http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act),
paraphrasing <http://www.law.cornell.edu/uscode/text/50/1801> (b)(2)(C).

Certainly it makes sense for the NSA to store all communications by FISA-
eligible persons, if they can. With the Bluffdale datacenter, storing
connection information becomes feasible. I worry about the interpretation of
the FISA law where potentially anyone is FISA-eligible. Do you have reason to
believe that the NSA would reject that interpretation?

More fundamentally, is it acceptable for lawmakers to pass FISA in its current
form if it allows that interpretation? If so, what would make the law
unacceptable?

~~~
tptacek
That person must "knowingly engages in sabotage or international terrorism, or
activities that are in preparation therefor, for or on behalf of a foreign
power". I think Avon Barksdale can rest easy.

------
maeon3
America is going to be destroyed by these ticks in government, these are the
hyopthermia pains before the coming realization that we will not recover and
be frozen to suffer death by slow freezing, this will take 20 years, but our
great nation will fall.

As hackers we must prepare to plant the seed for a superior nation when we are
overrun by communists, socialists, corruption in every layer of government and
business, and bleed from so many ticks and parasites that the collective dies
from an unexpected shock to our system.

this is our writing on the wall. you have been measured and found wanting.

~~~
angersock
One could dryly observe that it would appear to be the capitalists, lenders,
investors, and bankers that've caused this nation the most upset, one could.

~~~
crusso
The capitalists wouldn't be able to do much to dent the economy, much less the
supporting fabric of the nation without their collusion with the government.

If you don't realize the government's more than sizable role in the most
recent catastrophe, you haven't been paying attention.

~~~
AndrewKemendo
It's clearly at the request of said capitalists, what with rent seeking
behavior, quest for monopoly power and whatnot.

