

Obama Can’t Confirm If Courts Ever Rejected Spying Requests - marcieoum
http://techcrunch.com/2013/06/17/in-first-nsa-interview-obama-cant-confirm-if-courts-ever-rejected-spying-requests/

======
weland
Dear God, it's like I'm a kid again.

I didn't grow up in the US; when I was a kid, we didn't have this kind of
interviews on TV. For one thing, most of the TV shows they aired was
propaganda, and it was so utterly boring most of us didn't bother. The
newspapers, on the other hand, carried propaganda along with the news, so you
kindda had to read it, too, if you were to know what's happening. The smarter
folks could even read between the lines.

This one struck the most sensible chord:

> And what that does is that does not apply to any U.S. person. Has to be a
> foreign entity.

Entities. Not individuals, not groups, but entities. If you're an American
citizen, you're cool. If you're a foreign entity, you're preeeetty much either
a ladybug or a human, either way, it's pretty much the same thing.

This was Communist speak for non-Communist (to be fair, it was the twisted
kind of Soviet-inspired Communism). We had communist workers and teachers and
housewives, but foreign elements. Our country had communist friends but the
democratic entities weren't that friendly.

This defensive depersonalization makes it very easy to strip away ethics.
Butchering unarmed civilians sounds a lot more horrifying than annihilating
non-combatant, but dangerous entities.

> The — because — the — first of all, Charlie, the number of requests are
> surprisingly small… number one. Number two, folks don’t go with a query
> unless they’ve got a pretty good suspicion.

This sounds very much like the kind of conversation that, at some point, was
taking place between Soviet representatives and representatives of various
other subordinated, but somewhat nasty countries of the Soviet block.

It's the kind of stuff that was handed out to us during the talks about the
Warszaw pact. Is it true that the Soviet Union has supreme command of all
troops and can invade any territory, even that of its allies? Well, no, I
mean, it wouldn't be an invasion. It's a trade-off we have do for our freedom:
should the Revolution be abandoned in any of the member countries, the allied
countries should intervene to restore the right values. That is why the Soviet
Union has to have representatives at all levels, must be informed of every
decision. It's one of those things we must concede for democracy -- we need to
entrust our freedom to people who can protect it. Words like freedom,
democracy, values and way of life were freely thrown in -- ours was the land
of the brave and free, unlike that of the oppressed working-class friends
living in imperialist, totalitarian states.

I shivered a bit when I read this.

Edit: BTW, just to practice my reading-between-the-lines muscle, my guess is
that a) FISA hasn't turned down any request yet and b) the requests were
summarily "reviewed" and approved, through a short process that should give
legal backing. In other words, FISA isn't there to actually review the
requests, it's there simply in order to fill in the paperwork that's needed in
order to make the whole thing seem legitimate.

In the early days of the regime, we had something similar to this, too. The
curious dudes submitted a request to a committee of representatives of the
people -- the request was basically a form which said that the following
people have highly suspicious activities that can be a threat to the security
of our people, to the Revolution and the communist way of life we have so
hardly fought for (actual fucking words!) and was recommended to be placed
under surveillance. These were signed pretty much in bulk -- the
representatives of the people usually signed a big list at the bottom. Later
on, this was eventually dropped: complaining about paperwork was useless, and
after a few years it became obvious complaining about paperwork was so
dangerous that when it was no longer required, no one dared do anything about
it.

~~~
Spearchucker
_> And what that does is that does not apply to any U.S. person. Has to be a
foreign entity._

Referring to a living, breathing human being with feelings, emotions, needs
and wants (just like any American) as an "entity" is what Rory Miller calls
"othering" [1]. The point of othering is to remove the humanity from someone
or from a group of people. It makes it easier for someone to monitor, torture
and... kill someone else.

And Americans are masters at it. People in the middle east, regardless of
anything, are referred to by Americans as hajis. Gooks in Vietnam. And so on.
It's subtle, but it works on Joe Public as well as it does on American
soldiers invading some random country.

It's inhumane.

[1] Facing Violence: Preparing for the Unexpected -
[http://www.amazon.com/dp/1594392137](http://www.amazon.com/dp/1594392137)

~~~
mtgx
The media could help here, by instead of using the administration words in
their articles, they'd be using _their_ words - the normal words.

Also, at every press conference where they say "entities", they could ask, do
you mean "people"? Or something along those lines. The people in the media are
American citizens, too. It would help if they'd try to defend their own
rights, too, instead of being nice to the government, which they are supposed
to keep in check.

~~~
fnordfnordfnord
If "the media" were going to help, they could have done that at any time since
9/12/2001.

------
spikels
Obama is almost certainly the best spoken US President in 50 years. But when
asked a simple, straightforward yes or no question:

"But has FISA court turned down any request?"

We get this answer:

"The — because — the — first of all, Charlie, the number of requests are
surprisingly small… number one. Number two, folks don’t go with a query unless
they’ve got a pretty good suspicion."

Just blather, incoherence and grasping at straws. C'mon man you went to
Columbia and Harvard Law, you give speeches almost every day - you can do
better.

How about "yes", "no" or "I don't know" next time.

~~~
thaumasiotes
The inarticulate, chopped-up sentences are just an artifact of the article's
author purposefully being nasty to Obama. Everybody talks like that; it's just
not quoted as a matter of course.

~~~
MDCore
I think it makes more sense to say the author is writing it like that to show
that Obama was stumbling with his words in response to a "yes/no/I don't know"
question. That's useful information that I appreciate the author conveying.

~~~
thaumasiotes
The problem here is that that information is being conveyed solely through
contentless innuendo. You can expect the same level of disfluency from a
softball

"How awesome is your new program?" "So awesome"

Q&A session. People only think this transcript shows Obama stumbling with his
words because they aren't aware that printed media cleans up the natural
disfluencies that occur in speech. This transcript looks highly unusual, but
that isn't because Obama's false starts and stops are unusual (they aren't).
It's because it's unusual for them to be printed in a quote. Thus, the
conclusion that the author is malicious. An attack on Obama for refusing to
answer the question is fine. An attack on him for speaking like a normal
person in a spoken interview makes no sense.

~~~
MDCore
I think your response is valid and an excellent counterpoint.

I would only disagree by pointing out that the President of the United States
is not a normal person merely having a spoken interview. He's known as an
excellent orator -- that's an important part of his job --, his speeches are
carefully crafted and as you (seem to) say this is a softball interview. With
all that in mind, why is he stumbling over a seemingly simple question?

------
malandrew
The question I want to see asked is:

"Obama, in the course of your day, you and your staff probably interact with
many foreign diplomats and other persons which this system is likely to
classify as 51% likely to be foreign. On top of that, the content of those
conversation, depending on the topic at hand, is likely to include words that
would trigger an alert. With this in mind, do you think it is acceptable that
those in the NSA, many of whom may have a differing political affiliation than
you, can read any correspondence flagged for review? Furthermore, how can any
member of congress operate from a position of equality if they cannot have
confidence that their communications could fall into the hands of their
compatriots across the aisle that may have a different agenda?"

If the answer to those questions included a filter that excluded all members
of the executive, legislative and judicial, the obvious follow up question
would be, "Why are members of congress allowed this right, but not the
citizens of this country?"

I would also take comments he made on the Wikileaks Manning trove and present
them as counterpoints to any rebuttal he has. I don't remember anything
verbatim, but I remember him specifically addressing the importance of
American diplomats being able to be secure in their communications to be able
to carry out the roles for which they were appointed. This exact same argument
can be applied to every single elected representative of the people and every
official appointed by a duly elected representative.

~~~
aetimmes
I believe Snowden has gone on record saying that members of Congress are
exempt from NSA spying.

~~~
malandrew
Are all the staffers of those members of congress and the counter-parties with
whom they interact also exempt? If you know someone's address book, you can
spy on them while maintaining the appearance of spying on others.

------
yaakov
Obama:

> You have my telephone number connecting with your telephone number. There
> are no names. There is no content in that database...At no point is any
> content revealed because there’s no content that...the FBI — if, in fact, it
> now wants to get content; if, in fact, it wants to start tapping that phone

Snowden ([http://www.guardian.co.uk/world/2013/jun/17/edward-
snowden-n...](http://www.guardian.co.uk/world/2013/jun/17/edward-snowden-nsa-
files-whistleblower)):

> If I target for example an email address, for example under FAA 702, and
> that email address sent something to you, Joe America, the analyst gets it.
> All of it. IPs, raw data, content, headers, attachments, everything.

Notice how Obama only talks about the phone metadata DB, and a process for
getting data from companies about "non-US persons" (Google, etc) based on
"essentially a warrant" (not the same thing as a warrant, though). Snowden's
allegations are starting to become much wider than the original Verizon DB and
PRISM systems. And I don't think that we are going to see Obama address them
and deny them directly any time soon.

~~~
brown9-2
The quotes you have highlighted are discussing two different things.

Obama is referring to the phone metadata database.

Snowden is referring to what an analyst sees after an email address is
targeted, meaning that an active surveillance process has been started for
that specific email address and that the email provider has begun to provide
access.

So of course these two statements are different, because they are talking
about different things. The operative phrase in Snowden's statement is "If I
target", which should be read as "after I start data collection for an email
address...".

------
leoc
> There is a second program called the 702 program. [...] It can only be
> narrowly related to counter-terrorism, weapons proliferation, cyber hacking
> or attacks

A FISA 702
[http://www.govtrack.us/congress/bills/110/hr6304/text](http://www.govtrack.us/congress/bills/110/hr6304/text)
order (IANAL) authorises "the targeting of persons reasonably believed to be
located outside the United States to acquire foreign intelligence
information". In FISA
[http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg178...](http://www.gpo.gov/fdsys/pkg/STATUTE-92/pdf/STATUTE-92-Pg1783.pdf)
section 101 "foreign intelligence information" is defined thus:

 _(e) "Foreign intelligence information" means— (1) information that relates
to, and if concerning a United States person is necessary to, the ability of
the United States to protect against — (A) actual or potential attack or other
grave hostile acts of a foreign power or an agent of a foreign power; (B)
sabotage or international terrorism by a foreign power or an agent of a
foreign power; or (C) clandestine intelligence activities by an intelligence
service or network of a foreign power or by an agent of a foreign power; or
PUBLIC LAW 95-511—OCT. 25, 1978 92 STAT. 1785 (2) information with respect to
a foreign power or foreign territory that relates to, and if concerning a
United States person is necessary to— (A) the national defense or the security
of the United States; or (B) the conduct of the foreign affairs of the United
States._

Again IANAL, but it _seems_ that just about any possible reason the US could
have for going through a non-resident alien's GMail or Dropbox account could
be waved through under (e)(2). Lockheed Martin would like to know all your
business secrets? Of course this would benefit the national defense of the
United States. Annoying EU politician holding out against whatever
intellectual-property treaty the US government is pushing this year? Clearly
the United States would be aided in the conduct of its foreign affairs by
complete surveillance of his email and calendar, maybe even by tipping off
some journalists about the affair he is having. (Again, I'm not saying here
that anything much like this _has_ happened, just suggesting that the "foreign
intelligence information" requirement isn't going to prevent it from
happening.)

And it's not even clear to me that the FISC court has any requirement or
ability to rule on whether the US government is staying within even this very
generous "foreign intelligence information" requirement. On a FISA 702
certification the Government has to 702 (g)(2)(A) "attest that-- [...] '(v) a
significant purpose of the acquisition is to obtain foreign intelligence
information". Does this give the FISC any ability to inquire into the
specifics, or is the government basically on Scout's honour in this?

So I can't see any _legal_ basis on which FAA 702 orders are restricted to
being "narrowly related to counter-terrorism, weapons proliferation, cyber
hacking or attacks". But I presume Pres. Obama isn't just lying here, so I
assume that an _executive decision_ has been made to that effect: that the NSA
cube-farm workers who are grinding through routine counter-terrorist
surveillance are under orders to so restrict themselves. But that would just
be an administrative order, not a law actually binding on the government. So,
at some level between the President and the desk-jockeys, the decision could
be made at any time to revise or take away that restriction - or just to set
it aside _ad hoc_ at any time for any reason. I don't think it's even clear
that the boys who handle industrial espionage and the like are covered by this
order at all.

------
crispycret
Best article I have read in a while. It's tragic comedy how they get a way
with it.

I mean i tried asking a group of friends what they thought, to learn they
don't know what the fuck PRISM is!

It usually goes. "No one cares about, what the government does, your just
weird."

I'm anti social so the only time I hangout with them is when I'm stoned. So I
can see why I'm weird to the average teenager, but to not know about the
government being caught spying on us, makes it seem like they were never
really caught unless your on 4chan or reddit...

Fuck it...

~~~
fragsworth
It's questionable that they are "getting away with it".

The implications of what they've done are incredibly vast and damning. Not to
mention, persistent - people now know everything they type on their computer
is handed over to the government. That doesn't go away, no matter how much the
media might want to ignore the subject.

I'd actually be surprised if they completely get away with it. At least a few
people will be in trouble over this whole thing. Lots of civil rights
organizations are organizing lawsuits over this as we speak.

~~~
spikels
NYT columnist Maureen Dowd recently described a supposed political strategy in
a recent column:

“It’s not true, it’s not true, it’s not true, it’s old news.”

If you can delay and delay and delay until the outrage disapates you just
might be able to get away with something outrageous.

[http://www.nytimes.com/2013/05/12/opinion/sunday/dowd-
when-m...](http://www.nytimes.com/2013/05/12/opinion/sunday/dowd-when-myths-
collide-in-the-capital.html)

------
Qantourisc
What surprises me the most is Americans never stopping and wondering about
people outside the US. This is why I never used a lot of services inside the
US, and the few I have I will remove over time.

~~~
eru
Most are happy to buy "Made in the USA." and bash economic immigrants. Just
because they were born on the wrong side of the border. Not unique to the USA,
though.

------
captn3m0
>What I can say unequivocally is that if you are a U.S. person, the NSA cannot
listen to your telephone calls, and the NSA cannot target your emails … and
have not.

So I'm screwed as a non-US citizen, and so are the 2.5billion people using the
internet outside of US purview. Now I'm seriously considering a switch to
safer alternatives.

------
hooande
The reason that FISA warrant requests have such a high acceptance rate is
because a federal prosecutor wouldn't ask for one unless they were certain it
would be approved. They don't have to file a request every time a federal
agent wants a warrant. They have the option to say "You need to gather more
evidence".

They say a good trial lawyer won't ask a witness a question without knowing
what the answer will be. FBI lawyers know the law and they know the judges,
they won't just take shots in the dark when it comes to obtaining warrants.
It's like asking why you have a 100% approval rate for your bank card
purchases. If you know that you don't have enough money, you won't try to buy
something.

Keep in mind that it's difficult to become a federal prosecutor and the job
attracts intelligent people. The kind of lawyer that you see advertising on
the side of a bus or a local DA trying to make a name for herself will try to
push the envelope to get as much as they can. But high level corporate or
government lawyers rarely sign their names to anything that isn't legally rock
solid.

I just saw the Obama interview and he only hinted at this answer. As a Harvard
trained lawyer he understands the system, but as POTUS he can't always be
candid.

~~~
MichaelGG
>But high level corporate or government lawyers rarely sign their names to
anything that isn't legally rock solid.

So magically, these "high level" people stop trying to overreach? Suddenly
they're struck with a respect for privacy and law? That's simply not credible.
Feds regularly abuse seizure laws[1], why would you possibly think they're
more restrained elsewhere?

I'd expect a reasonably high acceptance rate, especially if they're allowed to
pick judges sympathetic to them. But a rate approaching zero should set off
red flags.

1: e.g. [http://www.wbur.org/2013/01/24/tewksbury-motel-
foreclosure](http://www.wbur.org/2013/01/24/tewksbury-motel-foreclosure)

------
CWuestefeld
Apparently there has been at least one instance of the FISA court rejecting a
request, but we're not allowed to know about it.

From [http://m.motherjones.com/politics/2013/06/justice-
department...](http://m.motherjones.com/politics/2013/06/justice-department-
electronic-frontier-foundation-fisa-court-opinion)

 _the Justice Department was due to file a court motion Friday in its effort
to keep secret an 86-page court opinion that determined that the government
had violated the spirit of federal surveillance laws and engaged in
unconstitutional spying. ...

But in July 2012, Wyden was able to get the Office of the Director of National
Intelligence to declassify two statements that he wanted to issue publicly.
They were:

\- On at least one occasion the Foreign Intelligence Surveillance Court held
that some collection carried out pursuant to the Section 702 minimization
procedures used by the government was unreasonable under the Fourth Amendment.

\- I believe that the government's implementation of Section 702 of FISA [the
Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit
of the law, and on at least one occasion the FISA Court has reached this same
conclusion._

------
bmelton
The number of requests is not, as Obama asserts, "surprisingly small". It is
probably smaller than it ought to be, and in light of the NSA's recent
admission that they've tapped warrantlessly, that's probably the explanation.

Regardless, here's their record, and they certainly aren't disapproving much.
[https://epic.org/privacy/wiretap/stats/fisa_stats.html](https://epic.org/privacy/wiretap/stats/fisa_stats.html)

If there's a reason that Obama can't confirm it (beyond that he just doesn't
know), it's because it is believed that the FISC acts differently than other
warrant-granting entities in that at least usually, when it denies a request,
it also then provides guidance on how to refile the request in a way that it
might be approved. Regular courts will do this on procedural errors, but not
as a matter of course.

In all likelihood, the 11 denials the FISC has issued over the past 34 years
were likely all later converted to approvals with their guidance.

~~~
CWuestefeld
Don't we have evidence why the number of requests is "surprisingly small"?

All this time we assumed that the requests would refer to individuals who were
under suspicion. But the Verizon order tells us differently. Here we've got
one, giant request for "every call that passes through Verizon".

It's a huge amount of spying being done, all carried on the back of one (or a
handful) of blanket requests.

~~~
bmelton
As I understand it, that's possible, but the 'metadata' requests aren't
routinely surveyed because they don't capture 'enough' data to constitute
something that would require a warrant.

To put it in more real world terms, it takes a warrant for me to go into your
house and listen to what you're doing, but I am perfectly free to sit outside
your house and watch your comings and goings without one. I believe (but do
not know) that the current interpretation of the metadata requests is being
treated like this, where the NSA simply feels that no warrant is required.

Your argument however, probably holds more weight because, at the least, you
would very much hope that Verizon and company wouldn't be handing over data
without some kind of warrant, even with a 'strong suggestion' from the feds.

------
tsotha
It's amazing how little this guy knows.

------
Mordor
> I don’t think anybody says we’re no longer free because we have checkpoints
> at airports.

Lies right there. It's difficult to call someone a liar because the scope is
far reaching, beyond just one untruth or another. Would it be correct to say
"Obama is a liar"?

------
fnordfnordfnord
>Obama Can’t Confirm If Courts Ever Rejected Spying Requests

That means either: Courts have not rejected any requests. or: The gov't has
ignored [one or more of] the rejections.

------
ChrisAntaki
Then I can't support him.

