
FISA court rules NSA can resume bulk data collection - facetube
http://www.nytimes.com/2015/07/01/us/politics/fisa-surveillance-court-rules-nsa-can-resume-bulk-data-collection.html?_r=0
======
dmix
Just a reminder about FISA's historical performance:

> Between 2001 and 2012, the FISA judges approved 20,909 surveillance and
> property search warrants - an average of 33 a week. During that 12-year
> period, the judges denied just 10 applications. Prosecutors withdrew another
> 26 applications.

> From 2007 to 2012, FISA judges also approved 532 "business record" warrant
> applications, the category used in the order that directed Verizon to
> release metadata on all phone calls inside the United States. No business
> record warrants were rejected.

and, on the judges perception of themselves:

> Walton, the senior judge on FISA, declined to be interviewed. In a
> statement, he said: "The perception that the court is a rubber stamp is
> absolutely false. There is a rigorous review process of applications
> submitted by the executive branch, spearheaded initially by five judicial
> branch lawyers who are national security experts, and then by the judges, to
> ensure that the court's authorizations comport with what the applicable
> statutes authorize."

[http://www.reuters.com/article/2013/06/21/us-usa-security-
fi...](http://www.reuters.com/article/2013/06/21/us-usa-security-fisa-judges-
idUSBRE95K06H20130621)

~~~
AndrewKemendo
I can tell you from first hand experience that getting a warrant TO the FISA
court from a sponsoring agency is a massive bureaucratic battle in and of
itself.

Reason being, the agency powers that be don't want to send something up that
will be disapproved because it takes significant time and effort of general
counsel and leadership of these agencies to process, implement and track to
maintain compliance - even if the warrant is reasonably broad.

So these numbers really don't mean anything in terms of just "blanket
surveillance." The bar for even getting something to the court, in my
experience, is incredibly high and you typically need very high ranking people
to sign off on it. Which means your evidence, reason for doing and ensuring
that it is within the boundaries of EO 12333 and a million other regulations,
has to be pretty airtight.

~~~
bazillion
This is exactly the case. The reason there are almost no denials is that there
would have been a great amount of due diligence performed to ensure that FISA
collection was warranted. The fact that there are _any_ denials after such
analytic rigor takes place, suggests that the FISA court is not a rubber
stamp.

Every single year people who are read onto FISA must complete a comprehensive
course on how to deal with FISA data, and it's not taken lightly. People lose
their job over mishandling of this type of data, for reasons such as: poor
query construction, failure to timely delete accidental collection on US
Persons, or collecting without prior justification.

~~~
belorn
> failure to timely delete accidental collection on US Persons

You mean that rule which previously said you had to delete accidental
collected information regarding US persons after 6 months? That rule was
changed a year ago to 5 years, and in 4 years there won't be any systems left
that can delete information and the 5 years will be extended again and again,
in the same way as copyright.

------
fru2013
I personally think that creating laws to prevent government surveillance is a
pointless endeavor. The NSA has ignored and broken laws in the past, why would
we expect them to follow new ones that are passed?

The only way to prevent surveillance is with a technical solution
(encryption), not a legal solution (more laws).

~~~
0x5f3759df-i
I'm sorry but no.

[https://xkcd.com/538/](https://xkcd.com/538/)

You need both. By that same logic do you think the constitution and bill of
rights is a pointless endeavor? Our government has violated these rights many
times in our history. I could just as easily say that the constitutional
amendments passed after the civil war were pointless because there was still
institutionalized discrimination and racism for another hundred years.

How much did encryption help Lavabit? The court forced them to hand over the
encryption keys anyway.

We need to change the laws and place proper oversight over the NSA and other
intelligence agencies with real penalties for the violation of our rights.
Encryption alone is not enough.

~~~
mkstowegnv
>with real penalties for the violation of our rights.

This. The flagrant violations of our constitution that have taken place are
tantamount to treason and the guilty parties deserve punishment at the level
of life in prison. And I will vote for any candidate that has the intestinal
fortitude to say so.

------
jMyles
I don't understand how the FISA court, created by Congress outside the bounds
of the appointment clause, for the specific task of approving or rejecting
surveillance warrants, can so casually set aside the rulings of an actual
court.

I mean, this is really simple stuff - like Marbury vs. Madison simple.

Isn't this precisely what the Church committee (out of which FISA grew)
intended to prevent?

edit: Clarified first paragraph

~~~
ikeboy
Did you read the opinion linked in the article?
[https://www.documentcloud.org/documents/2124483-br-15-75-mis...](https://www.documentcloud.org/documents/2124483-br-15-75-misc-15-01-opinion-
and-order.html)

The actual arguments start from 10 and go to 12. The quote about Second Court
not being binding on them is from page 14, and some problems they had with the
Second Court's analysis are on page 16, including pointing out that some of
the claims of the Second Court are no longer true after the Freedom Act was
passed.

~~~
jMyles
Yeah, it's really oddly worded. Whether or not the 2nd Circuit is binding on
FISC is not at issue. The question is whether or not the 2nd Circuit is
binding on the NSA (or at least NSA activities within its geographical
jurisdiction).

~~~
ikeboy
The 2nd Circuit didn't issue an injunction, so it wasn't binding anyway. As
the article states, they intend to ask for one from the 2nd now.

------
rtpg
The reasoning here is pretty sound:

\- In any case the USA FREEDOM Act explicitly rules out bulk collection by the
NSA in 6 months ( it's done by the phone companies afterwards, not sure if
that's really any better)

\- The Second Circuit ruled that Section 215 of the Patriot Act was not
intended to allow for mass surveillance. But they did not issue an injunction,
saying that further action is dependent on the USA FREEDOM Act

\- Congress passed the act _with this 6 month period_ and otherwise similar
language, basically saying "We know this is interpreted as mass surveillance,
and we are not contradicting that"

The second circuit ruling was not based off of constitutional interpretation,
but off of the interpretation of the law. By passing the Freedom act with that
6 month period, Congress has made clear that the "mass surveillance"
interpretation is acceptable to them (again, for that 6 month period).

~~~
joshuak
And yet how does the FISA court have jurisdiction in the matter at all? My
understanding was that the FISA court existed solely for the purpose of
evaluating the validity of warrants that if applied for in a general court
would prove a natural security risk.

~~~
rayiner
The FISA court does not handle criminal warrants. It was created to add a
layer of judicial oversight for foreign power surveillance activities that
previously did not require warrants.

------
afarrell
One thing I don't understand about the updates to the law governing the FISA
court: How would there be any challenge to its rulings? Without a challenge,
how would it be appealed to SCOTUS? Without a public appeal, how would the
legal community be able to debate the merits of different cases as they do
with other constitutional law issues?

It is like if the FBI was doing the bulk collection but never using the data
to prosecute anyone: there isn't any place for the exclusionary rule* to
restrain the prosecution.

* this is a good intro for the unfamiliar: [http://lawcomic.net/guide/?p=1585](http://lawcomic.net/guide/?p=1585)

~~~
ikeboy
From the article:

>The surveillance court is subject to review by its own appeals panel, the
Foreign Intelligence Surveillance Court of Review. Both the Second Circuit and
the surveillance review court are in turn subject to the Supreme Court, which
resolves conflicts between appeals courts.

~~~
coldcode
Yet no one has standing to request the Supreme Court look into this. Ah the
joys of secret courts.

~~~
ikeboy
If I'm reading it right, the plaintiff here was appointed an "interested
party" in some legal sense, which would give them the right of appeal? Am I
misunderstanding that?

~~~
tootie
The Second Circuit clearly thought they had standing. SCOTUS can disagree
though and punt on un the underlying issue.

------
droopyEyelids
I worry sometimes when I hear people say things like "What is the point, as
soon as we overcome something or strike a victory, the other side starts
looking for ways to undermine or overcome it"

That is true, but it's almost the universal constant in life. The fight for
good is never won... it's a continual struggle, a process- not fixed condition
to be achieved.

~~~
unclebucknasty
Should we so easily accept that premise? Sure, we must guard against an
erosion of rights. But, it seems that in some cases, we are guarding against
subversion of the very tools emplaced to aid us in that objective.

~~~
lugg
Yes, the premise is right, the "some cases" you have now, are subversion,
definately, the problem is, they only gained a foothold purely because you
failed to guard your rights from erosion in the first place.

------
hyperion2010
Anyone surprised that a fake court with no accountability says that the
organizations it oversees can do what they want?

------
davesque
So, would someone please hack the NSA's collection of bulk metadata and use it
to reveal embarrassing information about politicians and NSA employees who
support this program? Why hasn't this happened yet?

~~~
harry8
Why do you think it hasn't? People who drop endless resources into that kind
of thing would use it for blackmail.

Are you sure people aren't being blackmailed? How sure?

------
titzer
The solution is to use strong encryption _all the time_. When it becomes the
standard mode of operation for the majority of people, protocols, and
applications, it will no longer be suspicious (and therefore probable cause)
for a warrant. Let them subpoena the encryption keys in court or burn CPU time
trying to crack things they find important. Encryption will help resist
indexing and slow down data mining, bringing back some of the privacy and
freedom we used to have.

~~~
themeekforgotpw
Caveat here that the crypto needs to actually be good, and key management and
negotiation needs to be good, and key sizes and algo parameters need to be
good, and that hardware needs to be good, and that key escrow systems
("Secure" Enclave, "Trusted" Platform Module) need to be good, you can not use
computing services - everything must be done locally (the third party doctrine
means that copies of this data must be kept to be made available), and the
software stack must be kept secure and the hardware must be trusted.

~~~
titzer
We're making progress on all those fronts. And even ROT-13 is better than
sending everything in plain text.

~~~
Aoyagi
Spooks are making progress as well, and they are very well funded.

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codezero
This infuriates me, as I assume it infuriates a lot of people. What the fuck
can we do, short term, and long term?

~~~
codezero
I was seriously hoping that someone had some feedback. Quite telling that
there's basically nothing to be done.

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drjesusphd
I'm really curious what skeletons the FISA judges have in their closets.
Aren't you?

So what makes you think the NSA isn't?

~~~
titzer
It's really scary to think of the potential for abuse and corruption that such
a treasure trove represents. Why should we trust them with the ability to
essentially blackmail _everyone_?

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drjesusphd
Of course they did. They're the NSA's personal court as far as I can tell.

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suprgeek
A non-adversarial system, with the Judge being a part of the Govt. Does anyone
ever believe that this is anything other than the thinnest of fig leaves to
cover the almost limitless power of the NSA to peep into people's private
business?

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rebootthesystem
Help elect Rand Paul and all of this is likely to stop. Any other candidate,
regardless of party affiliation, is a vote for maintaining the current state
of affairs.

Not sure he'd be able to accomplish everything he talks about due to political
realities. That said, the massive message sent by having him and his ideas
pushed to the top of the stack would shake-up the political class. It's about
letting them know, in very clear terms, what we want and what we are unhappy
with.

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shit_parade3
Oh surprise, secret court rules in favor of continuing secret laws to assist
in secret data collection.

American Justice is a farce, illegitimate, and to be utterly ignored.

