
Why We Should All Care About Today's Senate Vote on FISA - mtgx
https://www.eff.org/deeplinks/2012/12/why-we-should-all-care-about-senates-vote-fisa-amendments-act-warrantless-domestic
======
twoodfin
_In brief, the law allows the government to get secret FISA court
orders—orders that do not require probable cause like regular warrants—for any
emails or phone calls going to and from overseas._

Is it somehow shocking that a probable cause standard doesn't apply to
national security intercepts of cross-border communication? Customs doesn't
need a warrant to search your bags at the border, either.

The key point of FISA is not to legalize spying on communications among
foreign nationals or between foreign nationals and Americans. Such spying has
been considered part of the Executive's national security authority for
decades. The key point of FISA is to ensure that intercepts between Americans
that _are_ subject to Fourth Amendment protections are avoided by design and
deleted when discovered.

Congress couldn't obligate the Executive to get an "Army Court" order before
ordering a division to take a city. There's a little more sense to the
obligation here, since they're just as responsible as any other branch of the
government for protecting Americans' Constitutional rights. But these orders
aren't meant to act as warrants: They're oversight tools.

~~~
HistoryInAction
More specifically, they're oversight tools set up in 2006, following the
awareness of the Bush Administration's use of warrentless wiretaps. The FISA
revisions were to extend the flexibility of judges who were already allowed to
retroactively provide legal permission up to 48 hours after the initial
wiretapping began and approved over 95% of the wiretaps requested.

The Bush Administration simply refused to go through even that rubberstamp
process. I was an intern in the House office where the initial compromise that
became this bill was proposed, even if it was later named for a much more
senior Congressman.

The FISA deal was a small retraction following a huge jump forward in
intrusive government powers, so I'm proud to be supporting EFF's efforts to
push privacy forward as much as possible, in light of the PATRIOT Act's
overreach and similar during the past decade.

~~~
twoodfin
So do you think there should be a "probable cause" standard to warrant
intercepting a call between Chicago and Cairo? Do you think the Constitution
requires one?

~~~
HistoryInAction
I'm not a lawyer :)

Sen. Paul argues an absolutist position on the Fourth Amendment, that any sort
of search/seizure of information involving US citizens requires a warrant. Do
I agree? I'm certainly favorable to the interpretation of the Fourth.

However, my larger concern is the lack of oversight, even by the so-called
"Gang of Eight" re: Intelligence committees:
<http://en.wikipedia.org/wiki/Gang_of_Eight>

The government, under both the Bush and Obama administrations, has clearly
engaged on systematic "overcollection," or going beyond even the allowable
actions by the FISA law. It was a large scandal leading to the retroactive
approval by congress through these FISA amendments in 2006:
[http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_co...](http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy)

So I don't think the right question to ask is whether or not probably cause is
the correct standard to use since it doesn't appear that government actors
follow the assigned standard anyway. The question is of oversight and the
reasonably effective ability to challenge such government behavior, as
contrasted with the case of Nicholas Merrill and his NSL letter.

~~~
twoodfin
I'm asking about the Fourth Amendment issues because I think they're
irrelevant, but most people who discuss this issue seem to think they're
paramount.

Really, this is a separation-of-powers fight: How much permission from
Congress (and oversight by Congress) does the President need to authorize
varying degrees of spying? The President has no obligation to obey laws that
impinge on his Constitutional authority. Or to put it more gently, he's
generally free to interpret those laws as broadly or narrowly as necessary to
avoid that impingement.

So I can't get too worked up about the "systematic overcollection" argument.
Unless you make it "systematic, deliberate overcollection of purely domestic
communications". I am disturbed that the EFF seems to think it's advantageous
to blur the distinction (using terms like "probable cause" and "warrants") and
make it seem as if these programs are _prima facie_ targeted at domestic
communication and unconstitutional.

~~~
Spooky23
Given the fact that most of these things are done in near-total secrecy, how
can you be sure that the "systemic overcollection" concern is what you say it
is?

And what is a "purely domestic" communication in this context? Is this message
board a domestic communication? A telephone call? A telephone call to a
foreign national living in the US? I have no idea. How would I prove that it
is or isn't?

I'm not some sort of paranoid that thinks that the government is out to get
me. I do know that for routine criminal matters, the Federal government has
incredibly broad and effective police powers, even with court oversight.
Pre-9/11, the government was already able to gather lots of actionable
information about the threat our nation was about to face (and fumbled the
ball).

So I'm not convinced that all of this secrecy and lack of accountability is
buying me anything as a citizen. Frankly, I'm concerned that by mindlessly
gathering vast swaths of data, it will become exponentially more difficult to
extract signal from the noise.

~~~
tptacek
If the concern is that the executive is hiding facts from the legislative or
judicial branches: those branches can appoint special prosecutors, independent
counsels, or whatever it is you want to call them. There's obviously no
foolproof mechanism by which anyone can absolutely ensure that the President
or his team or the DoD will divulge information, but there are facilities the
branches can use to hold each other accountable.

~~~
m0nastic
I participated in one such example of this oversight (most fun test I ever
did).

We were hired by a Special Master that Congress appointed to conduct a pen
test against a branch of the DoI without their knowledge[1]

[1] As part of this class action:
<http://en.wikipedia.org/wiki/Cobell_vs._Salazar>

------
mtgx
FYI, all the amendments meant to "fix" FISA on privacy issues were rejected.
The one from Rand Paul that required a warrant for all spying and data
requests on American citizens, just like currently a warrant is required for
snail mail and phone call spying - was rejected 79-12. America - the land of
the free.

------
dguido
Isn't having your request to obtain information reviewed by the FISA court
judge kind of like having a warrant issued for it?

I also thought that part of the point of the FISA court was that it contains
the spread of classified information to just a few judges, who gain increasing
expertise in understanding how to handle it, rather than spreading classified
info all over a sea of amateurs.

------
ibejoeb
Video and transcript available at
<http://www.c-spanvideo.org/program/SenateSessionPartOne2>

Starts at 13:55.

~~~
tibbon
Was there a vote at the end?

------
fisadev
it's really funny when you read this article and you are called "fisa" :)

------
hayksaakian
So how did it go?

