
FISA court judge: No company has ever challenged Patriot Act sharing - rosser
https://arstechnica.com/tech-policy/2013/07/fisa-court-judge-no-company-has-ever-challenged-patriot-act-sharing/
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joe_the_user
A friend of might received rather extreme abuse while working in a classified
position. The only potential means he had to deal with it was finding a
competent labor lawyer who _also_ had clearance. Naturally, the easier course
of action was to write off the experience. Secrecy and unquestionable
authority breed contemptuous disregard for your fellow humans.

Yeah, "Nobody ever challenged this", most likely because of the high barriers
to challenge, etc.

Basically, not only is FISA broken but a society that tolerates a "classified"
area of work and information is doomed to have that secret area metastasize
and suck the life out of it.

~~~
yuhong
I wrote these on PRISM and Google:

[https://news.ycombinator.com/item?id=6054532](https://news.ycombinator.com/item?id=6054532)

[https://news.ycombinator.com/item?id=6078124](https://news.ycombinator.com/item?id=6078124)

~~~
josh2600
I think you're being downvoted for linking to your comments without explaining
why they're relevant.

I would assume, though, given their scale, that someone at one of these
companies has the necessary clearance to contest. I think FISA is being
intentionally facetious, or rather technically. I find it impossible to
believe no one has attempted, but find it plausible that the government has
yet to give anyone standing to sue.

Finally, given the sovereign clause, I don't see why the government has to
accept a lawsuit against them.

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D9u
Sadly, in today's upper levels of government, the term "conflict of interest"
has been shunted aside for varying reasons.

Also, secret court proceedings are not what one would expect from a nation
which constantly cites "moral high ground" as justification for violating its
mandate.

Imagine if the Watergate scandal had been squelched by citing "state secrets."

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feifan
Goes without saying that the system is broken. But I'd imagine it's
easier/cheaper to just hand over the data than challenge the request and get
lawyers involved…

~~~
bediger4000
Can a receipient of a FISA court order even get their own lawyers involved?

Given the kind of hair splitting, finely honed definitions and word games
going on in Congressional testimony, I wouldn't put it past FISA
judges/spokesmodels/whatever to claim that nobody ever challenged an order
when there's actually no procedure to perform such a challenge, and no
attempts to challenge have even been recognized.

~~~
DannyBee
1\. Yes, it's specifically allowed by statute to talk to your lawyer about it

2\. The FISC judge is correct in his statement. For that type of order, their
is a procedure, it's documented in both the statute and the rules, and has a
documented appeals procedure that leads to the supreme court.

He's not a spokesmodel, he's a federal judge. While some small percentage are
certainly political appointees, this one, and others, are more deserving of
respect than you are giving them.

~~~
rosser
Your comment — particularly your final graf — reads to me like a big ol',
"Don't hate the player, hate the game." And while, for some games, I think
that's a completely legitimate attitude, I really have a lot of trouble
swallowing it in this context.

As a Federal judge, he has tremendous power to effect change in the matters
that come before his bench, and yet FISC is, to all appearances, a rubber
stamp with a security clearance. To the extent that's actually the case, I
don't think hating the player is unwarranted, as it's exactly that kind of
player who has made — and continues to make, with every unquestioned
encroachment — the game the bowl of suck that it is.

~~~
DannyBee
It's not really "don't hate the player, hate the game" at all. It's "don't be
an asshole to a guy you've never met and have no idea about, and assume bad
faith on his part".

FISC is not a rubber stamp, as _explained in that very article_.

As a federal judge, he is bound by the rules of the FISC court, and the legal
statutes that enacted it and set the standards they must follow. He just went
_out of his way_ to say, in public: "Just FYI, you guys are more than welcome
to challenge this. I believe you have the authority to do so, and here is the
statute I believe grants you that authority". Instead of saying "hey, great
look, even the main judge thinks we have a right to challenge this", y'all are
jumping on him like he's lying through his teeth.

He has no right to challenge these orders himself. He can modify them, but
only within the bounds of the law. As I said, his job is not to make law, but
to be bound by the statutes that rule his court. Have you ever stopped for a
second to think that maybe this is his way of trying to explain to people how
to get this stuff shut down?

You know, instead of assuming he's just trying to lie to save face.

I like to give people the benefit of the doubt. Maybe he is lying to save
face. Maybe he doesn't really give a shit. Most federal judges I know are
better than that. I may not always agree with their ideologies or rulings, but
just about every one i've ever met tries to do the right thing.

 _Whatever_ you may believe, they certainly aren't mouthpieces for any
administration. Hell, even his wikipedia page will tell you that.

~~~
rosser
First, where in what I said do you infer an accusation of lying? I never said,
nor even thought such a thing. To the contrary, I'm actually rather thrilled
to see someone that deeply involved in this nastiness stand up and say what
he's just said.

That doesn't excuse his participation to date one whit, however. He's as
culpable as anyone else who actively and willingly participates in the
surveillance state for the fact that we _have_ a surveillance state, he's
_directly and personally_ responsible for whatever abuses of the law have
passed across his bench, and I'm willing to bet _everything I have_ that such
abuses have crossed his bench, and been approved by him.

Second, how exactly does one _not_ characterize a situation in which, "In
short, it appears that the government only submits applications that it knows
will get approved—after having first gotten them modified to meet that
approval," as more or less a rubber stamp?

~~~
DannyBee
"First, where in what I said do you infer an accusation of lying? I never
said, nor even thought such a thing. To the contrary, I'm actually rather
thrilled to see someone that deeply involved in this nastiness stand up and
say what he's just said."

Parent implied he was lying, not you :) See " I wouldn't put it past FISA
judges/spokesmodels/whatever to claim that nobody ever challenged an order
when there's actually no procedure to perform such a challenge, and no
attempts to challenge have even been recognized."

"and he's directly and personally responsible for whatever abuses of the law
have passed across his bench — and I'm willing to bet everything I have that
abuses of the law have crossed his bench, and been approved by him."

I doubt this highly. He's not going to approve things he believes violate the
law. He has no reason to do so, and every reason not to. My guess is instead,
you do not believe the current law is constitutional, which is not the same
thing. It's not his place to rule on it. Not even because "just following
orders", but for starters, because _nobody has challenged it_. Not because
they didn't know, BTW, Verizon knew, Yahoo, knew, etc.

"Second, how exactly does one not characterize a situation in which, "In
short, it appears that the government only submits applications that it knows
will get approved—after having first gotten them modified to meet that
approval," as more or less a rubber stamp?"

By this logic, almost every motion to almost every court in a real case is a
rubber stamp. In larger cases, you generally don't submit motions without
talking to someone first either, and making sure it will go over well, or you
don't submit it. Judges don't want to see motions, for example, that just piss
on the other side.

Here, they modified the requests to conform to law. If they had been passed
through FISC after not conforming to law, that would be a rubber stamp. How
can you suggest that telling people "X is illegal, you'd can't do X", so that
they don't submit the motion, is a rubber stamp. The idea of a rubber stamp is
that it doesn't matter what you give them, they'll stamp it. Here, instead,
they are doing exactly the opposite. They tell people ahead of time "we aren't
going to stamp that", so nobody bothers.

~~~
bediger4000
How often do motions get denied? Do they _ever_ get denied? How many years go
between two denials?

 _Never_ denying a surveillance request is a whole lot different than rarely
denying. One is a rubber stamp, the other is a general tendency.

Beyond that, the circumstances (all of the judges appointed by one person, no
opposing advocate, no eventual public release of information, no witnesses) do
not lend themselves to anything other than abuse and injustice. You can argue
all you want, but the circumstances surrounding FISA court will should cause
suspicion in everyone.

~~~
DannyBee
"How often do motions get denied? Do they ever get denied? How many years go
between two denials? "

This is, as I (and the article) pointed out, _completely and totally
irrelevant_ to whether something is a rubber stamp, because the real question
is "how many times do bad surveillance orders get through" not "how many times
do things get denied".

No regular court would deny motions either if every judge or staff attorney
had time to talk to you about your motions ahead of time.

You have not shown _how_ the denial rate has _any_ relation to anything. As
i've argued, what actually matters is "how many illegal orders are getting
approved".

~~~
vidarh
> No regular court would deny motions either if every judge or staff attorney
> had time to talk to you about your motions ahead of time.

Yes, they would, because the interests of the parties, and the law, are often
wildly at odds, and even when they _know_ the judge will deny a motion, a
party will often want to raise it because raising certain issues are important
if you believe the judge is wrong and want to raise issues on appeal.

A court that does not deny motions is ridiculous on the face of it. It's
pretty much unheard of outside of banana republic dictatorships.

~~~
DannyBee
Your entire argument is basically "current rules require it for preserving on
appeal". Sure. If the FRCP/FRAP/etc didn't require that, can you think of
another reason?

We aren't talking about opinions, or motions to decide the case of various
forms that will produce such opinions, but just every day motions on requests
for production or whatever (which is what FISC is dealing with).

I mean, this is in fact, the whole point of things like magistrate judges.

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talmand
Of course they didn't challenge it, they had no motivation to do so. The whole
thing was secret, handing over data was no big deal because no one was to know
they did it in the first place. If it wasn't for various whistle-blowers over
the years they would probably still be handing over data without comment.

To me, the judge's statement just reinforces the notion that everyone involved
had little or no concerns over anyone's rights that were caught up in this
huge net.

But now that it's becoming common knowledge that people's data get handed
over, I wouldn't be surprised if challenges start happening. Especially when
overseas contracts start drying up because no one in their right mind would
store their data with a US firm.

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ctdonath
"Chilling effect" is a very real & recognized legal principle. When The
Government™ shows up at your door with near-infinite persuasive &
prosecutorial resources, with nods towards teams of heavily armed men and
bureaucrats with crates of red tape, telling you in no uncertain terms YOU
WILL DO X, and reminding you frequently that this very meeting itself
constitutes a National Secret™, with clear and implied statements that while
you may have legal alternatives the slightest contact with anything construed
as illegal (starting with the reply "no") will bring all this power crashing
down on your corporate & private life, one does tend to comply - regardless of
likely after-the-fact "well you could have done _this_ " conversations.

So it goes with many Constitutional rights. You can fight for your rights, but
"fight" isn't some lofty abstract term, it's "cause serious damage to another
while they do the same to you, until one of you is persuaded by harm & further
threat thereof to give up."

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coldcode
Even if they did how would we ever find out about it?

~~~
anigbrowl
Declassification, the same way we find out about a lot of things, albeit some
time later.

~~~
bediger4000
Yes, and we all know that everything is prompty declassified after it passes
its freshness date.

Eventual declassification is a pretty poor substitute for speedy justice.

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chris_wot
The only thing flawed about the argument that no corporation has ever
challenged a FISA order is that it requires a corporation to challenge a FISA
order.

Since when were corporations meant to be the representatives of justice? Since
when have they been upholders of citizens rights?

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Mordor
TIL secret courts breed lazy judges

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rpgmaker
Am I the only one getting "Resource not found" on the arstechnica site?

~~~
nwh
I'm not seeing any errors with it, but here's a mirror anyway —
[http://archive.is/Tm6oG](http://archive.is/Tm6oG)

