

October 3, 2011 FISC Opinion Holding NSA Surveillance Unconstitutional - pvnick
https://www.eff.org/document/october-3-2011-fisc-opinion-holding-nsa-surveillance-unconstitutional

======
UVB-76
Footnote 14 on Page 16 is very interesting:

 _> The Court is troubled that the government's revelations regarding NSA's
acquisition of Internet transactions mark the third instance in less than
three years in which the government has disclosed a substantial
misrepresentation regarding the scope of a major collection program._

On Page 17, the revelation that the NSA were acquiring Internet transactions
before the Court's approval of Section 702:

 _> The government's submissions make clear not only that NSA has been
acquiring Internet transactions since before the Court's approval of the first
Section 702 certification in 2008, but also that NSA seeks to continue the
collection of Internet transactions._

On Page 71, the revelation that data acquired via upstream interception pales
in comparison to that acquired directly from Internet service providers:

 _> Nor do these disclosures affect NSA's collection of Internet
communications directly from Internet service providers [redacted], which
accounts for approximately 91% of the Internet communications acquired by NSA
each year under Section 702._

~~~
dragonwriter
Yeah, I think the major revelation here is that the Administration clearly had
a pattern of withholding and misrepresenting what was doing in order to get
the FISC to approve it. Aside from the obvious negative aspects, there is a
minor positive aspect here: clearly, the court wasn't seen as a "rubber
stamp".

And this clearly takes the program out of the realm of honest attempts to
protect security within the law where perhaps there are disagreements, major
or minor, about the boundaries; a regular pattern of misrepresentation to the
court overseeing surveillance erases any grounds to claim that the
surveillance effort did not involve deliberate, conscious illegality and
deliberate, conscious efforts to conceal that illegality.

------
dangrossman
Some quick quotes if you don't have time to read it all:

> However, the Court is unable to find that NSA's minimization procedures, as
> the government proposes to aply them in connection with MCTs, are
> "reasonably designed in light of the purpose and technique of the particular
> [surveillance or physical search], to minimize the acquisition and
> retention, and prohibit the dissemination, of nonpublicly available
> information concerning unconsenting United States persons consistent with
> the need of the United States to obtain, produce and disseminate foreign
> intelligence information." 50 USC 1801(h)(1) & 1821(4)(a). The Court is also
> unable to find that NSA's targeting and minimization procedures, as the
> government proposes to implement them in connection with MCTs, are
> consistent with the Fourth Amendment. -- Page 29

> ... the government stresse that the number of protected communications
> acquired is relatively small in comparison to the total number of Internet
> communications obtained by NSA through its upstream collection. That is true
> enough, given the enormous volume of Internet transactions acquired by NSA
> through its upstream collection (approximately 26.5 million annually). But
> the number is small only in that relative sense. ... In absolute terms, tens
> of thousands of non-target, protected communications actually is a very
> large number. -- Page 72

> At issue here are the personal [redacted] communications of U.S. persons and
> persons in the United States. A person's "papers" are among the four items
> that are specifically listed in the Fourth Amendment as subject to
> protection against unreasonable search and seizure. Whether they are
> transmitted by letter, telephone or e-mail, a person's private
> communications are akin to personal papers. Indeed, the Supreme Court has
> held that the parties to telephone communications and the senders and
> recipients of written communications generally have a reasonable expectation
> of privacy in the contents of those communications. -- Page 73

> The Court concludes that one aspect of the proposed collection - the
> "upstream collection" of Internet transactions containing multiple
> communications, or MCTs - is, in some respects, deficient on statutory and
> constitutional grounds. -- Page 79

> NSA's targeting and minimization procedures, as the government proposes to
> apply them to MCTs as to which the "active user" is not known to be a tasked
> selector, are inconstistent with the requirements of the Fourth Amendment.
> -- Page 80

~~~
acqq
Anybody has a good guess what

    
    
         the personal [redacted] communications
    

should be? Really intriguing, keeping classified something simple looking as
the kind of communication or the attribute of it. From the context, it appears
it can't be "personal telephone communication." Telephone communication is
anyway always personal. It must be something else, my guess, something that
can be both personal and private, when here personal is explicitly used.

~~~
talentless
Based on the length of the redaction and the type I would guess "electronic".

~~~
acqq
Seems that "Internet communications" and "telephone communications" aren't
blacked out elsewhere. It can't be something so generic?

------
discostrings
One important thing to keep in mind while reading this opinion is that _this
is the opinion of the FISC_ \--a court that operates in secret, whose members
are chosen by a single man, that has a reputation for rubber-stamping almost
every request it has ever received, and that only hears the NSA's side of
every argument.

If _the FISC_ is using language this strong, what would a normal court have to
say about the NSA's brazen approach to the law?

------
coldcode
Trust but verify should be the rule. And that verification should be a public
thing. Secret courts ruling secret laws are unconstitutional and getting
secret organizations to fix said secret things in secret has no place in a
democracy.

Also, last time I checked violating the law of the land is supposed to involve
punishment. How is Bradley Manning as an individual violating a law different
than the NSA? Why couldn't he simply be told to stop doing what he was doing?
</sarcasm>

~~~
sologoub
Actually, you bring up a very valid point. NSA performed collection that went
above court approval. Potentially mislead the court even.

If a normal police officer goes in violation of a warrant, he/she is
jeopardizing the case and potentially their career/livelihood. Nothing to say
of a common citizen violating a law.

------
gruseom
I have a naive question. If the court found NSA surveillance unconstitutional,
why didn't it stop? Was the opinion overturned, or did the program change in
response to it?

~~~
sologoub
From Washington Post article: "A month after the FISA court learned of the
program in 2011 and ruled it unconstitutional, the NSA revised its collection
procedures to segregate the transactions most likely to contain the
communications of Americans. In 2012, the agency also purged the domestic
communications that it had collected." (Source:
[http://www.washingtonpost.com/world/national-security/nsa-
ga...](http://www.washingtonpost.com/world/national-security/nsa-gathered-
thousands-of-americans-e-mails-before-court-struck-down-
program/2013/08/21/146ba4b6-0a90-11e3-b87c-476db8ac34cd_story.html))

That said, I really don't see how there could be an argument of an effective
oversight, if what you are overseeing is so secret that you have no
independent information on the subject matter. The secret organization (NSA in
this case) is strongly incentivized to not disclose the entire truth or
withhold key limitations in order to achieve its' objectives. If there is no
way to independently verify that what is being said/committed to is actually
functioning, court pretty much has to trust NSA to self-police. Everything
here is being done on the NSA's terms and not the Courts or Congress's.

~~~
sitkack
It is also my understanding that the ruling was sealed as top secret by
executive order, please someone confirm this. By doing so they proved/showed a
ridiculous loophole in the system, that the court is a total puppet. It can
declare verdicts, but the verdicts can be silenced by executive order,
disappearing them.

Executive orders of secrecy can and will make everyone guilty of espionage at
some point. 2 + 2 == 4 is now declared "TOP SECRET" to reveal it is an act
against the US.

~~~
hamiltonkibbe
Antonin Scalia, dissenting in part stated:

"The document's failure to adequately specify binary operator precedence and
associativity was a deliberate choice on the part of the author(s) and the
court should hold the value of "2" [2 + (2==4)]as TOP SECRET as well. The
failure to do so sets a dangerous precedent of strict adherence to ANSI C
operator precedence regardless of context"

------
revelation
Well, isn't this a wonderful analogy:

[http://i.imgur.com/APhAVKE.png](http://i.imgur.com/APhAVKE.png)

In a sea of blacked out information, our government censors have given us this
tidbit, when apparently no other sentence on these pages was deemed fit to be
released.

It is pure travesty. The courts had to tear this document full of legalese
from the governments hands, and they still allow these muppets to censor
according to political agenda?

~~~
MWil
that could just as well be a portion of the text describing an alternative the
NSA COULD be taking and hasn't. That alternative providing no 4th amendment
problem.

~~~
gizmo686
I don't think so. As toufka pointed out, that screenshot comes from page 27. I
will reproduce the surrounding context of that quote:

" 3\. The Amended CIA Minimization Procedures

The CIA minimization procedures include a new querying provision [redacted]
The new language would allow the CIA to conduct queries of Section
702-acquired information using United States-person identifiers. All CIA
queries of Section 702 collection would be subject to review by the Department
of Justice and the Office of the DNI. [Redacted], the addition of the new CIA
querying provision does not preclude the Court from concluding that the
amended CIA minimization procedures satisfy the statutory definition of
minimization procedures and comply with the Fourth Amendment.

[footnote: The Court understands that NSA does not share its upstream
collection in minimized form with the CIA]

[new paragraph]

The amended CIA minimization procedures include [Redacted] raises no concerns
in the context of the CIA minimization procedures

[new paragraph]

[redacted]

[new paragraph]

the government has also added [redacted] It likewise raises no Fourth
Amendment problem. [redacted]

[new paragraph] Finally, a new provision [redacted] The court likewise sees no
problem with the addition [single word redacted] to the CIA minimization
procedures.

[end section]"

------
rayiner
I really recommend reading the whole thing, especially past page 15 (the first
15 pages are boring procedural history and heavily redacted). Interesting
stuff starts at pages 27, 32, 35-40, 43, 49 (4th amendment analysis). If you
read nothing else, read from the last paragraph of 71 to the first paragraph
of 79. which contain a readable and un-redacted summary of the court's problem
with the NSA's program.

------
mrt0mat0
Redaction is the pebble in the shoe of anyone reading this. How frustrating to
not just be able to read it. It allows the gov. to say, you're not seeing it
in the full context. well, no shit, we can't see it in it's full context.
frustrated!

~~~
asperous
To be honest they redacted only some names, the names of the isps they are
working with, some numbers, and the names of certifications. Certainly there's
some really interesting stuff here left non-redacted.

~~~
sitkack
homework assignment, using the same typeface find valid strings (names of ISPs
etc) that fit within the redacted blocks. Extra credit for using an NLP
toolkit to ensure grammatical correctness, double extra credit for using the
same grammar rules as the document.

~~~
asperous
It's not hard to guess honestly, especially with Quest getting those NSLs and
the ceo getting fired, and ATT "secret rooms". They redacted them for legal
reasons so companies can't sue ATT/Quest/etc. for "federally documented proof
of violation of privacy contracts." Though that would be hilarious if it
happened.

~~~
bobwaycott
Haven't these companies already received retroactive immunity by act of
Congress?

~~~
asperous
That may be true; another reason that they might be redacted is the "national
security concern" of people (aka terrorists) avoiding those ISPs.

------
beedogs
This is why I donate to the EFF. They fought for years to get this "secret"
FISC ruling released.

------
acqq
It looks as we still don't know what exactly NSA did that was
unconstitutional? Do we? If not, then what's the use of the disclosure as it
is now?

~~~
dangrossman
It seems to be spelled out pretty clearly. The NSA was collecting internet
messages through ISPs. These messages were supposed to be to, from, or about
specific non-US targets, and the systems were supposed to have "minimization
procedures" that would keep them from collecting other messages that were
to/from/about US citizens. These procedures were found to be insufficient: the
NSA collected tens of thousands of messages about US citizens without their
consent, which the court found to be in violation of the fourth amendment.

