
Obama to release FISA court opinion that ruled NSA surveillance unconstitutional - sinak
https://www.eff.org/document/doj-status-report-re-releasing-fisa-court-opinion
======
mark_l_watson
I donated money to Obama's 2008 campaign and voted for him twice. I am very
disappointed with him.

Now, my honest opinion is that at worst he sometimes flat out lies, or at
least cleverly tries to confuse people. He says that he had an orderly plan
for reviewing privacy issues, all the while, I think that his administration
has consistently been trying to keep things hushed up.

~~~
JPKab
Mark, I agree. I think that the situation is this: politicians, in the short
term, view the security side of the security vs. freedom debate as the best
option. If you can stop a terrorist attack from occurring by infringing
freedom, then do it. An attack will make you look much worse than a few
intelligent people being upset about privacy invasion. That, sadly, is the
unfortunate incentive happening here.

I think this short term benefit of always choosing security over freedom has
always been too tempting for politicans and leaders not to do it. The founders
recognized this, which is why the 4th Amendment, along with the rest of the
Constitution, is supposed to be enforced by the separate branch of government
that is the Judicial Branch.

But you know what? The Judicial Branch hasn't kept up with the Executive at
all. The Executive Branch has huge agencies within it. The Judicial Branch is
just a few judges and their staff.

Why isn't there a Judicial Branch agency that safeguards the Constitution from
the other two branches?? Why couldn't this agency have a bunch of people with
Top Secret clearances working for it who answer to nobody but the Supreme
Court and can be contacted by Edward Snowden type whistle-blowers whenever
someone feels the folks they work for are undermining the Constitution?

We need a Constitution Protection Agency that is part of the Judicial Branch.
Their entire job should be going after the bastards in the other two branches
who go against the constitution.

~~~
anigbrowl
_The founders recognized this, which is why the 4th Amendment, along with the
rest of the Constitution, is supposed to be enforced by the separate branch of
government that is the Judicial Branch._

You're saying the police power is the province of the Judicial Branch?! This
is a...unique interpretation. The Constitution divides the power of the
government in legislative (making law), executive (promulgating and enforcing
law), and judicial (evaluation of the law). In common law jurisdictions the
judicial branch does not have any kind of police power, and to the best of my
knowledge never has had.

I am perplexed by the number of HNers that seem to think we live in a civil
law jurisdiction.
[http://en.wikipedia.org/wiki/Civil_law_(legal_system)](http://en.wikipedia.org/wiki/Civil_law_\(legal_system\))

~~~
bane
[http://en.wikipedia.org/wiki/Constitutional_Council_of_Franc...](http://en.wikipedia.org/wiki/Constitutional_Council_of_France)

~~~
anigbrowl
France, too, is a civil law jurisdiction. I'm not sure what point you're
trying to make here.

------
mullingitover
It's fascinating that the situation is such a mockery of the rule of law, yet
it keeps on rolling. If the FISA decided that the NSA's activities were
illegal, why would it keep rubber-stamping the warrants? It seems like at that
point it should deny every single request going forward until the illegal
activities have stopped.

Is there a process for impeaching the FISA judges for malfeasance?

~~~
anigbrowl
_If the FISA decided that the NSA 's activities were illegal, why would it
keep rubber-stamping the warrants?_

First, I don't agree that they rubber-stamp warrants, but believe they
evaluate them on a case-by-case basis - not least because their decisions
might be classified now, but may well be declassified in the future, and their
reasoning will be held up to scrutiny.

More importantly, just because an agency is found to have operated illegally
does not mean that everything the agency does must then be rejected. It's easy
to find examples of police officers or even entire departments being corrupt,
but it does _not_ follow that everyone who is arrested by the police is
necessarily innocent, or that all arrests are flawed.

Arguments of the kind you make above involve a _fallacy of composition_ , one
which seems to appear ever more frequently on HN.
[http://en.wikipedia.org/wiki/Fallacy_of_composition](http://en.wikipedia.org/wiki/Fallacy_of_composition)

~~~
windexh8er
I'm not sure how anyone can has enough reasonable information to make a case
that FISA _doesn 't_ rubber stamp cases. It seems to me it works that of the
way large organizations navigate political nuances internally; people who
don't run the technology and platforms make the decisions as it pertains to
influence that, is often, good for self-preservation and fiscal motivation -
the operators implement the systems as they see fit and generally don't have
"real" oversight from the approvers. Even if they do - generally they don't
have enough understanding to enforce it if they wanted to. It's just a matter
of mincing words at that point.

I think until we see clear evidence from examples the number of cases denied
are an obvious minority. Based on what we know from public disclosure, there
is abuse. That to me states there is a good indication rubber-stamping has in
fact occurred and should be reviewed. But, since it can't be...

The trustworthiness of the system is not there anymore and it has degraded to
a point where most informed citizens would err on the side of saying there is
something wrong. There are some grave issues that need to be addressed in
short order or our government is going to push any data related industry the
way of safer harbors.

~~~
dylangs1030
_" I'm not sure how anyone can has enough reasonable information to make a
case that FISA doesn't rubber stamp cases."_

The burden of proof is on the positive, not the negative.

~~~
anigbrowl
In fairness that runs in both directions - we would certainly be better off
with some proof of FISA courts' effectiveness, even if were historical (eg
declassification of past decisions from >10 years ago, or the establishment of
objective criteria for declassification).

~~~
AnthonyMouse
It would also help significantly if the default for their opinions not be that
they are automatically classified and put the burden of proof on the
government in each individual case to justify why the public shouldn't know
what the law is.

~~~
anigbrowl
Well, opsec. Spying is by definition a clandestine activity, and I think there
are good arguments in favor of spying - the main one being that while it might
seem nicer not to spy on anyone, you end up being less informed, and
uninformed executives are more likely to end up going to war, which is a lot
more destructive than spying. If you read up on the Curveball story in Iraq,
that's a classic case of what happens when you make decisions with inadequate
information.

~~~
AnthonyMouse
You don't have to disclose the specific targets you're spying on to publish
the relevant court opinions. You can redact the names and still publish what
the law is.

And there is a difference between collecting intelligence on foreign
governments (which I don't think anyone could ever expect not to happen) and
mass data collection. Part of the problem here is that spying on "terrorist"
"suspects" is so broad and poorly defined that it could encompass nearly
anything and becomes nothing but a convenient fig leaf for mass surveillance.

We lump too many things under the label of terrorism. Someone with the likes
of a machete or a hand grenade is distinctly a law enforcement problem rather
than a national security problem and cannot justify secret mass surveillance
or data collection.

Once you take all of that out and get to the actual national security threats
(i.e. nuclear or biological terrorism) you end up with a completely different
threat model. More to the point, you need to keep a lot less secret because
instances of attempted nuclear terrorism are much more rare. You don't have to
classify every court opinion related to some idiot with defective instructions
on how to make a pipe bomb just because you have to classify certain methods
of preventing nuclear proliferation.

~~~
anigbrowl
_You don 't have to disclose the specific targets you're spying on to publish
the relevant court opinions. You can redact the names and still publish what
the law is._

If you have to redact all the of the relevant facts, then any statement of the
law is meaningless because it's unclear what sort of fact pattern it should be
applied to. I realize this seems abstruse, but the fact pattern is very
important in common law judgments. You can't just say 'the law is X' and have
it be portable to any other case. The opinion would read something like:
'HELD: the government may xxxxxxx xxxxx when xxxxx xxxx xxx in a xxxxx and
xxxxxx.' Read some judicial opinions in normal cases and then imagine how
little sense they'd make if the facts were matters of national security and
couldn't be published. For that matter it's quite hard for a lot of people to
understand the law in many regular criminal cases where all the details _are_
available.

 _Someone with the likes of a machete or a hand grenade is distinctly a law
enforcement problem rather than a national security problem and cannot justify
secret mass surveillance or data collection._

9/11 only involved boxcutters, but I'd say that it presented a rather
significant national security problem when those turned out to be sufficient
to hijack planes and fly them into high-value targets. There's an assumption
in some corners that since we're now more aware of the risks, no hijacking can
ever work again, but that's not the case.

You're also ignoring the fact that many kinds of low-level terrorist activity
aren't open to direct investigation by law enforcement. For example, suppose
you pick up signals about a plot involving Mr X, who has not yet arrived in
the US but whose phone number you have managed to identify. If he's in a
country that's friendly to the US you might be able to get their law
enforcement people to investigate him, but if not then it's logical to monitor
who he communicates with for prophylactic purposes.

~~~
AnthonyMouse
>I realize this seems abstruse, but the fact pattern is very important in
common law judgments.

You're basically assuming they would have to redact everything. Just replacing
names and addresses with tokens that don't identify the specific subjects
would get you most of the way there unless the specific fact pattern is unique
to the suspect, and then you can redact what is necessary to make it less
specific.

In addition to that, once any given investigation is over the opinions and
redactions that were held secret for the purposes of that investigation should
be published, and it shouldn't be so easy to keep things secret for decades
just by making a facile claim of national security.

>9/11 only involved boxcutters, but I'd say that it presented a rather
significant national security problem when those turned out to be sufficient
to hijack planes and fly them into high-value targets.

9/11 was not a national security problem. 9/11 was a mass murder. It was
shocking but we have inflicted more damage on ourselves in our overreaction to
it than the terrorists did in committing it. More have died avenging the
victims of 9/11 than died on 9/11.

A national security threat is a nuclear bomb, or a plague, or a foreign
government infiltrating high level government offices in preparation for some
kind of Communist takeover. Something that would be a factor of 1000 worse
than 9/11 and present an actual threat to the security of the entire nation.
This watering down of "national security threat" to mean any jerk who might
kill some people with an IED is just a ruse to rationalize the use of
extremist measures against everyone rather than taking into account the
proportionality of the threat.

>You're also ignoring the fact that many kinds of low-level terrorist activity
aren't open to direct investigation by law enforcement. For example, suppose
you pick up signals about a plot involving Mr X, who has not yet arrived in
the US but whose phone number you have managed to identify. If he's in a
country that's friendly to the US you might be able to get their law
enforcement people to investigate him, but if not then it's logical to monitor
who he communicates with for prophylactic purposes.

So get a warrant and conduct surveillance on him then. That's not the same
thing as spying and collecting data on _everyone_ "for prophylactic purposes"
at all.

------
makerops
Buy stock in whatever company the DoJ buys their black markers from.

~~~
famousactress
If momentum builds behind an internet blackout a-la the SOPA protest, that'd
be a clever way to do it.. write some js/css that black-marker-redacts the
page contents.

~~~
samstave
Reddit already has that for spoiler alerts.

~~~
akama
I believe it is just some subreddit css that implements that effect.

------
Moral_
Can anyone turn this lawyer speak into something the layman tech person can
understand, please?

~~~
DannyBee
They will release a redacted version of the opinion in question, and a
redacted version of exactly one paragraph from a classified whitepaper given
to congress on it. In both cases, how redacted they will be is up in the air.

They requested an extension until August 21st to do this (original deadline
was August 12th). The EFF "reluctantly did not oppose this"

~~~
fragsworth
It's really unfortunate that secret courts aren't unconstitutional. You would
think that one should have been obvious.

~~~
eggoa
Article III of the constitution is amazingly brief. It doesn't even explicitly
create the supreme court's power to determine constitutionality.

------
jivatmanx
At a point in our nation's early history, we decided to trust Constitutional
interpretation to the Supreme Court. There were cons to that decision - the
Constitution is our social contract and thus it's interpretation is ultimately
up to the people - but on the whole I think it was a good one.

But, if for whatever reason, this Judicial review cannot occur - whether that
be willful avoidance by the DEA for "Parallel Construction", or various
activities related to the FISA Star Chamber - that's a problem that needs to
be solved, lest the constitution lack any enforcement ability whatsoever.

~~~
cortesoft
The idea that the interpretation of the Constitution is up to the people
sounds like a good idea; however, how exactly would that work in practice?

We obviously can't just let each individual interpret it how they see fit, or
it becomes effectively meaningless. It would be equally impossible for each
Constitutional question to be 'voted' on by the people.

Is there a way I am missing? It seems the courts are the only logical choice
to interpret the Constitution.

~~~
dragonwriter
> The idea that the interpretation of the Constitution is up to the people
> sounds like a good idea; however, how exactly would that work in practice?

The people individually would decide what the Constitution means, and they
would -- having made those decisions -- individually and collectively act to
hold incumbent officials and candidates accountable to those interpretations
through voting, public advocacy, protests, and, in extreme cases, direct
action.

> We obviously can't just let each individual interpret it how they see fit

Not only can we, but we really have no other choice; whether we _like_ it or
not, each individual will do that, even if "how they see fit" is to delegate
the interpretation to some individual authority, or the collective wisdom of
the rest of the population.

~~~
jivatmanx
Great post. I think my central point is that it's dangerous for a democratic
society to believe that nine robed Brahmins are the only people qualified to
interpret it.

------
awicklander
Let me guess, this will be used as a way to legitimize the FISA court. Nothing
to see here - move on. See, your rights are being protected.

~~~
mpyne
The FISA court that's been around since 1978? There's entire major commands of
the military that have been created and then killed again in the time FISC has
existed, seems pretty legit to me.

------
kyro
Is there some sort of bat signal we can use to get grellas to this thread?

------
javajosh
This is actually really, really great news, and I'm really impressed that
we're changing direction so quickly. This is a huge bureaucracy, and softening
even this much in a few short months is an amazing thing. I see this as a very
hopeful sign that we'll get back on track - just more slowly than anyone
(including myself) would like it to go. But it's a nation of almost 400
million people and crazy complex body of law to deal with: nothing changes on
a dime.

------
mrt0mat0
I think we're going to get a bit of data, and say, good job guys, we did it!
... and nothing changes.

------
MrHater
Time to do the Obama Shake:
[http://i.minus.com/iwOSyasN8lziO.gif](http://i.minus.com/iwOSyasN8lziO.gif)

------
Sauer_Kraut
As I referenced in another thread, Obama himself voted for the FISA
amendment[1].

How clearer must it get that people working for companies like AT&T and Booz
Allen are complicit in receiving monetary remuneration for collaborating with
various arms of the government in circumventing/intel laundering/routing
around the laws and regulations said arms of the government were to be
checking each other against?

Must there need be more details of local law enforcement letting Steven Seagal
maraud around in federally sourced tanks? Booz Allen assisting local law
enforcement in copyright prosecutions? Drone managing SAIC running private
monitoring centers with federal fusion center support?

AT&T workers NOT going along with what management puts forward, revealing
secret closets instead. Or services shutting down to prevent such hardware
from ever being installed?

The US government, all branches, are corrupt by being complicit in each others
deeds. Together along with employees within corporations that collaborate with
the US government, law is being undone or outright ignored.

Refuse, resist.

[1] H.R. 6304 (Foreign Intelligence Surveillance Act of 1978 ) Obama (D-IL),
Yea:
[http://www.senate.gov/legislative/LIS/roll_call_lists/roll_c...](http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&session=2&vote=00167)

~~~
mikegagnon
I don't think the world is so black and white.

If you pay taxes to the federal government are you complicit with all of the
government's actions? Well sure, but what other option do you have? You could
not pay taxes and go to jail, or you could move somewhere else where there
isn't an imperfect government--- say Antarctica.

Similarly, what are you going to do if you decide not to work for some
"complicit" organization? Move to Silicon Valley and work at a startup? Is
that any better? Is there any company that is morally and ethically perfect?

Governments, industries, populations, etc. are all part of an inter-related
system called The World. If you think this system is imperfect and should be
improved, then exiting the system won't solve anything. Rather, you can work
within the system and do what you can to make it better.

~~~
Sauer_Kraut
I never said anything was black and white, just that a very large amount of
people have become complicit in what they acknowledge as wrong-doings.

As to working within the system, attempting to halt or mitigate what you view
as malfeasance is indeed not complying. Merely suggesting though, that people
are working within doesn't do much in the face of the number of those working
for without care or question.

Yes people have to make the choice of being complicit or face going to jail in
some cases. Most just need to stop defending their profiting from the
murder/kidnapping/torture/rendition/detention/prosecution of others. Providing
infrastructural support like telecommunications is indeed an enabler for
industries like drone warfare.

It's called "The World" as you put it.

