
In Secret, Court Vastly Broadens Powers of N.S.A. - bcn
http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html
======
bcn
Here's a zinger:

 _The officials said one central concept connects a number of the court’s
opinions. The judges have concluded that the mere collection of enormous
volumes of “metadata” — facts like the time of phone calls and the numbers
dialed, but not the content of conversations — does not violate the Fourth
Amendment, as long as the government establishes a valid reason under national
security regulations before taking the next step of actually examining the
contents of an American’s communications._

 _This concept is rooted partly in the “special needs” provision the court has
embraced. “The basic idea is that it’s O.K. to create this huge pond of data,”
a third official said, “but you have to establish a reason to stick your pole
in the water and start fishing.”_

~~~
wdewind
David Simon, creator of The Wire, has written extensively about this starting
with this post: [http://davidsimon.com/we-are-shocked-
shocked/](http://davidsimon.com/we-are-shocked-shocked/)

It is well worth a read for an extremely well argued, and informed, opinion
from the other side.

~~~
AnthonyMouse
His basic point seems to be that the government should be allowed to do it as
long as we don't hear about any specific abuses. There are two problems. The
first is the one he points out: when everything is classified and anyone who
notifies the public is subject to the treatment given to Manning and Snowden,
even finding out about the abuses much less holding those responsible
accountable is extraordinarily difficult. The second problem is that the
_really bad_ abuses of an accumulation of power like this are so bad that we
can't just wait until they happen before we do anything about it.

He also says some questionable stuff. Like this:

>We asked for this. We did so because we measured the reach and possible
overreach of law enforcement against the risks of terrorism and made a
conscious choice.

Everyone in Congress who read the Patriot Act before voting on it voted
against it. So no, we didn't. We had a gut reaction to a tragedy, somebody
pulled a defense contractor wish list out of a drawer and they passed it in a
moment of sorrow and anger. The country is only now starting to reach the
point that we can have a rational conversation about anti-terrorism without
the pain of a recent tragedy allowing self-interested warmongers to goad us
into an overreaction, and it's time that we seriously reevaluate what we allow
the government to do on our behalf.

And I'm reminded of what John Oliver said hosting the Daily Show when all of
this came out: "I think you're misunderstanding the perceived problem here,
Mr. President. No one is saying you broke any laws. We're just saying it's a
little bit weird that you didn't have to."

~~~
RockyMcNuts
In fairness, I don't think that's Simon's point. I think his point is, the
government should be allowed to do things like they did on 'The Wire' as long
as there is due process, i.e. independent oversight, transparent criteria,
ability to change the criteria through a democratic process. And yeah, we did
ask for it because we knew about AT&T secret rooms and there was no outrage.
Until we demand public hearings about exactly what is going on and what
constitutes due process we're still asking for it.

~~~
RockyMcNuts
I mean, seriously, what percentage of people watched '24' and 'Homeland', and
thought, OMG that is so unconstitutional.

Everybody believed that is actually what the intelligence services do, and
applauded.

------
D9u
There can be no "consent of the governed" when "We the People" are unaware of
the actions which our elected, as well as non-elected, representatives
perpetrate in Our name.

___Edit__

Yes, "unaware," as in "We the People" are perpetually "unaware" of what goes
on in _secret_ court proceedings.

~~~
Daniel_Newby
Unaware? Mass surveillance has been going on for a long time, and everybody
who cared to learn knew the immense scope. This is not a news revelation, it
is a media campaign by parties who need something to talk about.

Consent of the governed is the problem. The U.S. Senate is directly elected,
and the public paranoia _wanted_ these broad pseudo-security measures.

Speaking of consent of the governed, why is the media saturated by Snowden-as-
Bieber celebrity stories, and not election rigging by the IRS? Would you like
to learn more?

~~~
rubbingalcohol
^ says the guy who works for ICx Nomadics, a Homeland Security contractor.

[http://investing.businessweek.com/research/stocks/private/sn...](http://investing.businessweek.com/research/stocks/private/snapshot.asp?privcapid=9962980)

~~~
Daniel_Newby
Work _ed_. When I was there I had the good fortune to mostly work on useful
products, like non-fraudulent bomb detectors. (Mind you, I would cheerfully
work on surveillance products.)

------
ferdo
> In one of the court’s most important decisions, the judges have expanded the
> use in terrorism cases of a legal principle known as the “special needs”
> doctrine and carved out an exception to the Fourth Amendment’s requirement
> of a warrant for searches and seizures, the officials said.

This is political kabuki designed to make us think we have a representative
government. We don't. We have an oligarchy composed of
financial/industrial/military interests (as all oligarchies are) that runs the
intelligence agencies of the government it owns.

The fact of the matter is that the NSA has always considered itself exempt
from the law and the Constitution:

> "NSA does not have a statutory charter; its operational responsibilities are
> set forth exclusively in executive directives first issued in the 1950s. One
> of the questions which the Senate asked the Committee to consider was the
> "need for specific legislative authority to govern the operations of...the
> National Security Agency."

> According to NSA's General Counsel, no existing statutes control, limit, or
> define the signals intelligence activities of NSA. Further, the General
> Counsel asserts that the Fourth Amendment does not apply to NSA's
> interception of Americans' international communications for foreign
> intelligence purposes."

>
> [http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...](http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3_10_NSA.pdf)

------
jdp23
Excellent reporting by Eric Lichtblau based on "current and former officials
familiar with the court’s classified decisions". One key point:

 _In one of the court’s most important decisions, the judges have expanded the
use in terrorism cases of a legal principle known as the “special needs”
doctrine and carved out an exception to the Fourth Amendment’s requirement of
a warrant for searches and seizures, the officials said._

 _The special needs doctrine was originally established in 1989 by the Supreme
Court in a ruling allowing the drug testing of railway workers, finding that a
minimal intrusion on privacy was justified by the government’s need to combat
an overriding public danger. Applying that concept more broadly, the FISA
judges have ruled that the N.S.A.’s collection and examination of Americans’
communications data to track possible terrorists does not run afoul of the
Fourth Amendment, the officials said._

~~~
lisper
Funny, I must have missed the part of the Fourth Amendment that carves out an
exception for "special needs" or "overriding public danger." Hm, let's see:

"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized."

Nope, I still don't see it.

~~~
DannyBee
The fourth amendment also doesn't have an exclusionary rule in its text

IE no part of it says if the police conduct an illegal search, they can't use
that evidence against you.

Yet most people seem to get up in arms when Scalia/Thomas/whoever says that
line of cases should be overruled, and that it's up to congress to pass laws
to deal with police conduct

~~~
jivatmanx
The rule existed in traditional English Common law from long before the U.S.
declared Independence.

Being that the Fourth Amendment itself was a reaction against General Warrants
and Writs of Assistance, it's hard to imagine the founders would have wanted
even less protection here than English law already provided

[http://en.wikipedia.org/wiki/Exclusionary_rule#History_of_th...](http://en.wikipedia.org/wiki/Exclusionary_rule#History_of_the_rule)

~~~
DannyBee
This is a great policy and common law argument. But, much like the parent
comment, can you point where in the text of the 4th amendment (or the
constitution) where it says anything about an exclusionary rule?

Because if we are going to argue policy and common law, than we also have
restrictions that don't appear in the text, but appeared in common law, as
well.

~~~
jivatmanx
The Ninth amendment states that the Bill of Rights is not intended to be
exhaustive enumeration of liberty.

There is no danger in erring on the side of too much liberty. Parent errs on
side of denying of liberty already clearly enumerated.

~~~
DannyBee
Sure. I think we are mostly in violent agreement. I'm actually not trying to
argue that it's not a violation of the fourth amendment (i strongly believe it
is). I'm arguing that the literal text of the fourth amendment _alone_ is not,
by itself, a great explanation of what it really means in today's world. The
reply I original made was to the argument that because 'overriding public
danger' doesn't appear in the literal text of the 4th amendment, there can be
no such exception.

As we've both gone through, the 4th amendment can't be viewed in a vacuum, or
else it would be nonsensical.

So saying "i don't see where the literal text of the 4th amendment says that"
doesn't seem to me a complete and total argument.

For example, it literally says nothing about anything but papers, persons,
houses, and effects. None of this explicitly covers phone calls, or even
e-mail. You have to argue by analogy or inclusion in today's equivalent of
papers or effects

It also only prevents _unreasonable_ searches and seizures, and there is an
argument to be made that "special needs" or "overriding public danger" make
the searches not unreasonable. I don't personally buy it, but ...

As you mention, there is also historical context on all sides to consider.

That is in fact, exactly my point. Saying "it ain't in the text" is even far
past what textualism adherents do, and i'd venture to guess, would not make
for a very useful statute construction philosophy.

------
lazyjones
Secret courts, secret laws, secret prisons - what's your conclusion? Mine is:
this is a secret dictatorship.

~~~
graycat
Well, if not quite yet, then with, say, another president like Nixon ....

Sorry 'bout that, but my conclusion was that, yes, he was a "crook".

~~~
sixothree
Judging from the tapes he spent more time trying to destroy his political
enemies than actually governing.

~~~
graycat
Yup.

------
drawkbox
"The very word 'secrecy' is repugnant in a free and open society; and we are
as a people inherently and historically opposed to secret societies, to secret
oaths, and to secret proceedings." \-- John F. Kennedy

------
thbtbtbtbtb
Imagine you work at the NSA. Your boss comes through the door and says, "Hey,
we just got approval to store the communications of everyone everywhere. We
need the be able to cite credible suspicion before we can look at Americans'
communications, though. What can you do for me?"

"Wait, we can intercept and store all the communications?"

"Yep, all of them."

"Because they might include ones that present a threat?"

"Yeah, that's it."

"OK. Well, what if we could narrow it down? What if we implemented a system to
only scrutinize communications we thought were likely to be threats. That
would be better, right?"

"Where are you going with this?"

"Well, we're already collecting everything, right? What if we went just a
teensy bit further? What if we just added a step where we did semantic
analysis of everything we collect? That way, we'd narrow down the stuff we
were actually, you know, looking at to stuff we were already pretty sure was
important."

"That's a GREAT idea!"

"Wait, I'm not finished. We could narrow it down even more if we maintained a
graph of communications between everyone we know about. We want to affect the
minimum number of people possible, right?"

"Well, we're worried about lone wolves too..."

"That's fine. We can get business records through the PATRIOT Act. We can make
this a really fine-grained test. We can look for suspicious purchase patterns,
medical conditions, attempts to avoid detection, you name it. What could
possibly go wrong?"

------
ChrisAntaki
The FISA courts need to be dissolved, and replaced with something that is
visible to the public.

------
a3n
Why don't they get it over with and declare martial law? They clearly have
decided they can do WTF-ever they want, by declaration.

~~~
joe_the_user
They might already have done so - in secret!

------
Amadou
_In this case, however, a little-noticed provision in a 2008 law, expanding
the definition of “foreign intelligence” to include “weapons of mass
destruction,” was used to justify access to the message.

The court’s use of that language has allowed intelligence officials to get
wider access to data and communication..._

That is really, really scary when you include the fact that the term "weapon
of mass destruction" has been so watered down as to now include even a freakin
potato gun.

[http://www.pri.org/stories/politics-
society/government/expan...](http://www.pri.org/stories/politics-
society/government/expansive-definition-for-weapon-of-mass-destruction-gives-
prosecutors-the-power-13635.html)

------
dsuth
I do certification of high risk industrial installations for a living, and
this story reminded me of one I heard about the Japanese Fukushima disaster.

One of the guys who does certification over there did some digging and found
out that they had 3 sets of operating procedures for the plant: the
independently reviewed and certified ones which would provide a high level of
safe operation; the ones they didn't show anyone which was how they supposedly
operated the plant day to day (cutting corners); and then the way they
_actually_ operated the plant, which was even less safe.

When I read stories about the FISA, they sound shocking, but they also sound a
lot like Fukushima's 'second level' operating procedures. Bad, and an obvious
sideshow, but not even close to what's _really_ going on behind closed doors
at the NSA.

------
ensignavenger
"...the first Galactic Empire, for Peace and Security!"

"So this is how liberty dies, with thunderous applause!"

------
snsr
> the court is creating a significant body of law without hearing from anyone
> outside the government

Legal precedents created by non-adversarial proceedings in a secret court are
nothing less than terrifying.

------
teeja
Somehow I don't think the FISA court is fixing the problems it was created to
fix. It seems to have been co-opted.

Hopefully, in something less than a decade, one of our legislators can find
time in his busy money-raising schedule to discover how that happened. And
then start a task-force to make meaningful recommendations.

------
Qantourisc
In our country all laws have to be published in the "Staatsblad" (State-
released paper/documents containing new businesses, laws, ...) So unless a law
to allow secret laws was made we shouldn't have secret laws.

So that got me thinking, try outlawing secret laws ?

------
pivnicek
A government that demands secret courts can not call itself democratic. It is
the antithesis.

------
foobarbazqux
The motivation here is security through obscurity, right?

~~~
graycat
Partly it's _security theater_.

~~~
untog
I don't think it's arguable that collecting every piece of data on every
citizen could be a benefit to national security. It's just the associated cost
to privacy that makes it utterly horrendous.

~~~
graycat
Maybe Stalin, Hitler, Himmler, J. E. Hoover, the Stasi, etc. would all agree
that having all the data would help them build a _surveillance_ state they
would like.

Still, no matter who does/doesn't not like having all that data collected, for
the Federal Government to be able to demand that data strikes me as a gross
violation of the Fourth Amendment.

Legal cases are being brought; maybe a case will make it to the SCOTUS; and
maybe the SCOTUS will strike down as unconstitutional the laws that enabled
such data collection.

I can't find anywhere in the Constitution how nice would be to have a Stasi
surveillance state and have to conclude that the US founding fathers did not
desire such a thing.

Anytime a clear majority of active voters want to have this situation turned
around, around it will come, quickly.

------
lettergram
Unfortunately they do not need scrutiny from the public, these judges
(supposedly) are experts in constitutional law and the public (according to
law) does not have any say in it.

