
Why the ruling against NSA’s phone records program could have huge implications - Libertatea
http://www.washingtonpost.com/blogs/the-switch/wp/2015/05/08/why-the-ruling-against-the-nsas-phone-records-program-could-have-huge-implications/
======
cmurf
Sorry but too many people are focused on just the NSA. Two administrations
have defended these programs, as have the heads of the FBI, NSA, CIA, and the
FISA court supposedly providing oversight. So the problem extends well beyond
just NSA wordsmithing section 215, there are a lot of other agencies doing
this with an executive who either actively supports it or tacitly accepts it.

Jim Sensenbrenner, who is the primary author of the Patriot Act (and therefore
section 215,) has unequivocally said it doesn't authorize bulk collection. Two
years ago he warned the heads of all of these agencies to change their
policies or section 215 wasn't going to be renewed meaning any _legitimate_
programs under section 215 become illegal. And it seems they've all been
obstinately tone deaf, there's no evidence they've changed anything, they
haven't even bothered to lie that they have changed their behavior in order to
try and keep these programs.

~~~
csandreasen
I'm sorry, but Jim Sensenbrenner has no room to complain. After the Section
215 warrantless wiretapping program was first revealed back in 2006, he voted
for the Protect America Act[1] to legalize it. Then he helped renew it in 2008
by voting for the FISA Amendments Act[2]. After the Snowden leaks began,
Sensenbrenner suddenly became opposed to them. Later on in 2013, he admitted
publicly that as a rule he avoids attending any classified briefings because
he doesn't want to be burdened with the responsibility of protecting
classified information and would rather find out about these things when they
leak to the mainstream media.[3] So every time NSA came down and briefed the
program to the intelligence and judicial committees, Sensenbrenner shirked his
oversight responsibilities. Now he wants everyone to believe that he's hard at
work protecting their civil liberties.

[1]
[http://clerk.house.gov/evs/2007/roll836.xml](http://clerk.house.gov/evs/2007/roll836.xml)

[2]
[http://clerk.house.gov/evs/2008/roll437.xml](http://clerk.house.gov/evs/2008/roll437.xml)

[3] [http://www.lawfareblog.com/2013/11/the-shameless-
revisionism...](http://www.lawfareblog.com/2013/11/the-shameless-revisionism-
of-james-sensenbrenner-georgetown-law-center-edition/)

~~~
cmurf
This is a mischaracterization. For one Protect America Act addresses changes
in technology that neither FISA nor AUMF directly address. Two, not section
215, not FISA, not any FISA amendments, and not AUMF permit bulk collection.
And it's bulk collection that's in dispute, most Americans have far less of a
problem with targeted wiretapping of likely terrorist targets even without
warrants. Sensenbrenner, and others, have been quite clear the problem they
have with current and previous administrations is the bulk collection policy,
that there's no authorization anywhere for this.

That Sensenbrenner and others lacked sufficient concern or imagination that
section 215 would be wordsmithed and construed to support something like bulk
collection is fair criticism. If you are a Congresscritter wanting to have
your cake and eat it too, you'd write a vague law that steers completely clear
of authorizing what you don't like (bulk collection), and then act shocked
when it ends up happening. And I don't think that's a big stretch considering
the minority of legislation Congress puts an expiration date on, and section
215 is such, expiring next month.

So now the question is whether Congress lacks any stomach for bulk collection
and just lets it expire including all of the far less controversial programs
(i.e. they're considered legal, even if you may not like the law or the
policy). I think at best they renew it as is, and let the full appeals court
or SCOTUS look at it. But they might just scrap it and come up with a narrower
replacement to reauthorize uncontroversial parts.

~~~
csandreasen
> For one Protect America Act addresses changes in technology that neither
> FISA nor AUMF directly address.

No, you're right; I'll concede that. Both PAA and FAA modify law established
through the PATRIOT Act, but neither touch Section 215.

I was trying to make a point more about hypocrisy and failure to perform
oversight. He voted to amend the PATRIOT Act multiple times after the bulk
collection program was publicly disclosed[1], but didn't do anything back
then. We shouldn't have to fault him for lack of concern or imagination - he
should have been sitting in on the classified briefings. There's no excuse for
him to not know about this or any other NSA program that was briefed to the
Judicial Committee, and he shouldn't be voting to amend his own law without
understanding how it's being applied. He's says now that he's opposed to bulk
collection, but he could voiced his support to end to it a decade ago by just
doing his job.

> just lets it expire including all of the far less controversial programs

It's my understanding that only 3 provisions of the PATRIOT Act are set to
sunset: Section 215, Section 206 ("roving wiretaps") and Section 6001 (the
'lone wolf' provision).

[1]
[http://usatoday30.usatoday.com/news/washington/2006-05-10-ns...](http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm)

------
ohitsdom
I'm usually optimistic, but I have zero hope when it comes to the government
self-policing their own surveillance programs. I think the government will
interpret this ruling to a very strict practical application, and it will take
separate challenges to similar programs in court to stop them.

And that's just for the programs we know about...

~~~
stevehawk
That's to be expected. The NSA/CIA/FBI/etc all have to meet expectations that
are pretty much unreasonable. We basically tell them "You're not allowed to
know everything but you have to prevent everything". And when they don't
prevent things we haul them before the public and whip them. Of course they'll
do everything they can to work around the law.

~~~
derf_
This might be a reasonable argument if there was any direct evidence that all
of the billions spent on "collecting it all" had lead to the actual discovery
of any plots that would not have been found by other means. But, as with
"enhanced interrogation", I am not aware of any credible evidence to that
effect, despite the incredible incentive for the government to manufacture
some. We knew about the 9/11 attackers before their attack, but failed to put
that information to good use.

Trying to know everything does not work. Targeted, traditional police
investigation works. Money diverted from the latter to the former is wasted
and reduces safety.

------
appleflaxen
Just because it's illegal doesn't mean it has to stop.

The reality was it was pretty difficult to call it legal with a straight face
even before this ruling on 4th amendment grounds (even if congress calls it
legal, the constitution supercedes it).

For an authoritarian, the law is whatever they say it is.

~~~
krylon
I tend to agree. From what we've seen so far, one has to assume the NSA does
not really care about the legal status of its activities. As we say in
Germany: Legal - illegal - Scheißegal.

They may rename the program, shuffle it to so other branch of their
organisation, but I don't think they are going to stop. (Another problem, of
course, is that they would have a very hard time _proving_ they stopped, even
if they did. If they just said, "yeah, we're sorry, won't happen again", who
would believe them?)

~~~
rayiner
> From what we've seen so far, one has to assume the NSA does not really care
> about the legal status of its activities.

To the contrary, what we have seen so far is that the NSA has structured its
activities around well-defined legal principles:

No privacy interest in things crossing the border -> tapping cross-border
fiber cables but not purely domestic ones.

No privacy interest in information held by third parties -> sending third-
party subpoenas instead of directly tapping companies' networks.

No privacy interest in phone metadata -> collecting phone metadata.

Inapplicability of the 4th amendment to foreign nationals not on U.S. soil ->
filtering out purely domestic communications.

~~~
throwawayaway
> No privacy interest in information held by third parties -> sending third-
> party subpoenas instead of directly tapping companies' networks

really?

[https://plus.google.com/+MikeHearn/posts/LW1DXJ2BK8k](https://plus.google.com/+MikeHearn/posts/LW1DXJ2BK8k)

~~~
rayiner
If you follow the links in the article:

> We do not know exactly how the NSA and GCHQ intercept the data, other than
> it happens on _British territory._

~~~
throwawayaway
Please give me the url that contains that text string in the body, because I
can't find it. I followed those links.

I did find this though(directly tapping companies networks in the past):

In 2011, when the FISC learned that the NSA was using similar methods to
collect and analyze data streams — on a much smaller scale — from cables on
U.S. territory, Judge John D. Bates ruled that the program was illegal under
FISA and inconsistent with the requirements of the Fourth Amendment. [0]

[0] [http://www.washingtonpost.com/world/national-security/nsa-
in...](http://www.washingtonpost.com/world/national-security/nsa-infiltrates-
links-to-yahoo-google-data-centers-worldwide-snowden-documents-
say/2013/10/30/e51d661e-4166-11e3-8b74-d89d714ca4dd_story.html)

~~~
rayiner
[http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/04...](http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/04/how-we-know-the-nsa-had-access-to-internal-google-and-
yahoo-cloud-data)

~~~
throwawayaway
Thank you. It would appear that collection under the MUSCULAR program relies
on UK fibre links.

Given previous, I'm going to assume they still do routinely collect data
between US data centres on fibre links - but that's only an assumption. No
supporting evidence.

For the same reason, and previous behaviour, given no evidence to the contrary
- thinking that they don't is only an assumption too.

------
chinathrow
Who would have guessed that approving a secret directive by a secret court
could be against the law...

~~~
DamnYuppie
Only in free countries, in petty tyrannies it is probably very acceptable :(

------
cyphunk
Here is a case where having ALL records is claimed to have been relevant:
pinning the 2005 assassination of Lebanon's PM to Hezbollah [1].

As we all start to internalize the value of metadata criminals will avoid
using systems that expose it. This may reduce the value of this technique but
I somehow suspect it will not remove it. So while arguing that the data isn't
worth as much as claimed certainly sits well with me and other privacy
advocates I wonder how long that argument will last.

[2] The panel noted that the government never “attempted to identify to what
particular ‘authorized investigation’ ” the data of all Americans’ phone calls
would be relevant.

I think this argument is also weak. That the act of collection has been
limited to specific investigation has more to do with the physicality of
historical communication mediums. At least I believe this has a greater
influence over those limits than the idea of privacy. So I wonder how far this
argument will hold. I will be happy if it holds in "public v. NSA" but suspect
somewhere in the future, under some other constellation, it may not.

1\.
[https://news.ycombinator.com/item?id=9498119](https://news.ycombinator.com/item?id=9498119)

2\. [http://www.washingtonpost.com/world/national-
security/appeal...](http://www.washingtonpost.com/world/national-
security/appeals-court-rules-nsa-record-collection-violates-patriot-
act/2015/05/07/c4fabfb8-f4bf-11e4-bcc4-e8141e5eb0c9_story.html)

------
el_zorro
I'm mostly just curious about who would enforce the ban. Is there really any
enforcement agency that will police the others, when they all benefit from
surveillance? I just don't trust that we could ever really be sure that it's
been shut down.

~~~
Rapzid
FBI. Not only is it a primary function, but they are always quick to downplay
NSA contributions whenever the NSA tries to get credit for helping to stop
something.

------
VikingCoder
Why the ruling against NSA’s phone records program could have huge
implications

...but probably won't. Because security.

