
Secret Court Takes Another Bite Out of the Fourth Amendment - DiabloD3
https://www.eff.org/deeplinks/2016/04/secret-court-takes-another-bite-out-fourth-amendment
======
DannyBee
Errr, reading the actual decision, i don't see a lot of support for the EFF's
claims. It seems pretty cherry picked.

In fact it clearly states they can only retain stuff long term if the DOJ
notifies them explicitly that they have a continuing litigation/preservation
hold necessity (which is usually not the DOJ doing it,but say, a civil lawsuit
that carries with it preservation obligations).

It also makes further clear that in all cases, the only people with access to
most of any retained data is system administrators, not investigators, and
that it can't be used for investigative purposes.

It does say general querying is allowed, but only people explicit 702 access
rights are the ones who must be making such queries, or making such decisions.
In all cases all records of who accessesd what with what query terms and their
access level are explicitly logged, etc.

It also explicitly states that information acquired under section 702 will not
be introduced as evidence against a person in a criminal proceeding, without
1\. Explicit approval of the attorney general 2\. in criminal cases related to
national security crimes

In any case, this is not new, this viewpoint is something going back to FISC
precedent from _2002_.

So it's not like this _just_ happened.

Additionally, the _statute_ is pretty clear here.

It says: " (h) “Minimization procedures”, with respect to electronic
surveillance, means—

... (3) notwithstanding paragraphs (1) and (2), procedures that allow for the
retention and dissemination of information that is evidence of a crime which
has been, is being, or is about to be committed and that is to be retained or
disseminated for law enforcement purposes; and"

So again, nothing new here, this has been law for quite a while.

In short, i may hate a lot of things about FISA/FISC/etc, but i think the EFF
is stretching to say this is a new problem, or to blame the court for it.

~~~
zaroth
I think they are blaming the court for finding the statute you quoted is
constitutional, when they believe it clearly should not be. Warrantless mass
surveillance is bad enough for the special purpose of national security. It's
obvious they would never be allowed to perform the same exact wiretaps
directly for use in non-national security cases. So why is the obvious
loophole a get-out-of-Constitution free card?

Information _aquired_ under 702 may not be introduced.... Exactly, we call
this parallel construction.

Those limits on retention you mention, which don't apply to evidence of a
crime which has been, is being, or could possibly be committed (aka
"about")... are those the same limits FISA just recently blasted NSA for not
following and hiding from the court that they weren't following? [1]

They are not saying this is a new problem. This is a very old problem and also
a very big problem. And for finding this constitutional, the only one to blame
is the court.

[1] - [http://www.politico.com/blogs/under-the-
radar/2016/04/govern...](http://www.politico.com/blogs/under-the-
radar/2016/04/government-surveillance-fbi-nsa-violations-222162)

~~~
rayiner
> It's obvious they would never be allowed to perform the same exact wiretaps
> directly for use in non-national security cases.

There is no "national security" exception to the 4th amendment. At least in
theory, these are communications that wouldn't require a warrant but for FISA,
because they involve communications with foreign non-citizens.

~~~
zaroth
It's hard to keep up -- my understanding is "meta-data" is mass collected for
Americans talking to Americans, and does this mean it can, and we will see
that data being bulk mined for "crimes" just by entering someone's name? Or
are you saying that this part isn't overseen by FISA?

------
tmuir
I wonder if this means that the NSA's definition of "collect" has conveniently
reverted back to the widely accepted meaning.

Their previous defense was that "collect" meant to actually inspect the
information.

------
partycoder
Western press always mocks eastern countries because of their policies around
surveillance and censorship to restrict free speech. They rarely report on
what is going on around here.

~~~
capote
They are two different worlds. There's no comparison. In the west, with cases
like these, and people like Snowden, we're trying to defend our free speech
and privacy by _our_ standards. We're doing alright, but there are some big
problems to solve. And yes, the media needs to cover this more.

But comparing this to censorship and related problems in China and Russia
(single-party states with control of speech at the policy level) is just
silly, for lack of a better word.

~~~
partycoder
Well, here the 2 party system is like choosing between Coca Cola and Pepsi.
Not very different from what happens with Communist countries.

~~~
capote
I think you have no idea what you're talking about.

Since you bring up "Communist countries," my grandfather lived in Communist
Romania. He was beaten to death in jail over the course of two months on
charges of possessing foreign currency [0]. My parents grew up with almost no
food to eat, most of the time being tracked by the secret police, everywhere,
black car following them home, informants at every corner, in every place they
visited. A modern "Communist country" is North Korea. You can do some research
on your own regarding that.

Yes, modern Russia and China aren't that bad. But comparing their single-party
system (in which the party literally controls everything, and on many
occasions silences dissent by "disappearing" people (read: killing them) )
with the United States, is in fact, _just plain silly_. Whoever pointed out
that this is a bad way to argue is wrong. It is simply _silly_. Having the
choice in two parties, where mostly anyone can, in theory, run, this is
infinitely more free than a single-party state. People can make themselves
known, they can speak what they want (look at Bernie), they can come out of
nowhere without being carefully monitored and selected by a single party.
Having the choice encourages politicians to at least _somewhat_ work with the
people's interest at heart, rather than just the interest of the party.

Your Coca Cola and Pepsi comparison is very myopic. If you cannot tell the
difference between the two parties, especially at a time like this, you have
no place discussing politics in any forum. Quick summary: one party is a
center-right party trying increase funding to social services, the other is a
far-right conservative party focused on the religious majority and traditional
conservative values. There are many more things to them; the differences are
tremendous. Read their Wikipedia pages, and those of their candidates.

Stop with these comparisons, guys. I know the state of affairs isn't great
here, I know our media isn't focusing on the right things and we have huge
problems with the NSA and privacy matters.

 _But be grateful for what we have, and appreciate that you live in a country
where you will not be killed by the government for speaking too loud._

[0]
[https://en.wikipedia.org/wiki/Gheorghe_Ursu](https://en.wikipedia.org/wiki/Gheorghe_Ursu)

~~~
jack9
> one party is a center-right party trying increase funding to social
> services, the other is a far-right conservative party focused on the
> religious majority and traditional conservative values

Stop drinking the soda. Those are the most colorful agendas which often result
in 1 or 2 grand policy gestures to point at. In practice, the majority of the
time is spent bolstering the businesses of donors. To whit, this is EXACTLY
what communist countries produce, once they get the populace under control
after a few purges.

------
rboyd
What's best as a society is to fight. What's best as an individual is to
conform.

~~~
niels_olson
And then they came for me.

------
tacos
Is anyone aware of a source for this type of news that isn't quite so one-
sided? It seems all we have is hyper-lefty "sky is falling" stuff and hard-
charging right-wing "shut up kids, the government knows what's best for you."

I want reporting, not _advocacy_. The better of the mainstream press outlets
are balanced to a fault but get the interesting details wrong or leave them
out altogether. The fringe outlets target their core audience with lots of
spun details and a lack of opposing viewpoint.

EDIT: If anyone can get past "lefty vs righty" and answer my core question I'd
really appreciate it. This is a genuine query for information, not a clever
way to troll.

~~~
gshulegaard
I...hmmm...I don't know if my personal bias is influencing my perspective, but
I usually find the EFF as a reasonable reporting source. They tend to fall on
the left, but I struggle to see them as "hyper-lefty".

The key for me about the EFF is they are usually good at providing sources. I
am going to take the time to read the linked Memorandum and Order document and
form my own opinion:

>
> [https://www.dni.gov/files/documents/20151106-702Mem_Opinion_...](https://www.dni.gov/files/documents/20151106-702Mem_Opinion_Order_for_Public_Release.pdf)

Although, I do tend to agree with the EFF on a fair amount of issues (not
always though).

~~~
tacos
My personal bias is way in favor of the EFF but the tone still irks me. And
don't be fooled by footnotes! Unlike EFF, Wikipedia consciously strives for
balance and they often come up way short, too. Any decent advocacy
organization knows how to play the "references" game.

~~~
studentrob
I agree with you, often the tone of EFF feels off. It can vary a lot by
article.

I think this is evidence of a nascent tech community. We are fractured in our
approach to some things (e.g. RMS vs others) and this shows in the varied
responses by EFF.

I definitely don't agree with everything they have to say about tech and
policy but I am glad they exist. They keep pretty good tabs on government and
private company policy. Sometimes it feels weird when they criticize some
private company for a policy which I feel is not a big deal, but I just
register my disagreement and note they're not me ;-)

------
Karunamon
Could someone clarify something for me?

As I understand it, PRISM is not a thing that lets the NSA willy nilly search
the internal networks of companies they've onboard,

It is instead a thing for companies who would be the target of large volumes
of these requests just because of their size to upload the data they're
legally required to because of NSL or similar, in a rapid fashion.

Is this assessment correct?

~~~
gshulegaard
As I understand it (so take it with a grain of salt) PRISM mandates that
targeted companies collect and turn over data that matches a set of ("court-
approved") guidelines without prompting[1].

This as opposed to the government finding probable cause, getting a warrant,
and asking the company for the data (if they have it). Instead, the onus is
placed on the company to comply with the guidelines set forth without first
being asked.

It is unclear to me whether or not companies had to start collecting/reporting
data they were otherwise discarding before, but this quote sounds like they
are/were:

> "The NSA can use these PRISM requests to target communications that were
> encrypted when they traveled across the internet backbone, to focus on
> stored data that telecommunication filtering systems discarded
> earlier,[8][9] and to get data that is easier to handle, among other
> things.[10]"

[1]
[https://en.wikipedia.org/wiki/PRISM_(surveillance_program)](https://en.wikipedia.org/wiki/PRISM_\(surveillance_program\))

------
DenisM
A lost opportunity. Had they asked for the court orders from the FBI, that
could set the framework for the future - information is collected, but cannot
be searched without a court order. That could have been a decent compromise.

This is not going to be a popular opinion, but I think a compromise is
necessary. There is no way to stand up to the train of data collection. For
one, the public being afraid of this and that will demand to be protected at
all costs, no matter how small the threat. The more scandalous the news cycle
gets, the more panic we will see. And then the technology improves so fast,
soon enough publicly installed video cameras will track everyone, and all
within the constitutional framework.

A middle ground would be to create the fourth branch of the government that is
tasked with data collection, but will only give it up on court order. Orders
may be for individual incidents based on reasonable cause, or for data-mining,
based on a judgement of proper scope.

~~~
lettergram
> There is no way to stand up to the train of data collection. For one, the
> public being afraid of this and that will demand to be protected at all
> costs, no matter how small the threat.

I disagree. I think government data collection on citizens should not be
allowed, period. I know many people external to tech who agree with me.

The issue occurs when government officials talk about terror attacks. If they
were honest, and told anyone it never prevented a terror attack, more would be
inclined to not be tracked.

Coupled with this, is the fact I don't trust the government databases not to
get hacked, and neither does anyone else.

~~~
rayiner
This opinion is about what the government can do with the data of non-citizens
believed to be abroad.

------
deepnet
_" If one would give me six lines written by the hand of the most honest man,
I would find something in them to have him hanged"_, Cardinal Richleu.

 _' Nothing to hide'_ privacy naysayers imagine innocence a perfect defense.

In practice a prosecution presents select facts in the order best suited to
convict.

Under mass surveillance they have all the facts; the defense only has what one
still possesses/ remembers.

With such resources, enough well cast aspersions could convict anyone of
something.

Counter intuitively innocence can be harder to defend as the guilty will have
prepared alabis. (part2 @)

Lawyers advise their clients not to talk freely to police for very good
reason.@

@
[https://www.youtube.com/watch?v=6wXkI4t7nuc](https://www.youtube.com/watch?v=6wXkI4t7nuc)

~~~
joering2
Spot on!

But don't forget SCOTUS Scalia saying that basically if you are later on found
not guilty, but the trail on its own was done properly with no misconduct, you
will still get the death penalty!

[http://www.businessinsider.com/antonin-scalia-says-
executing...](http://www.businessinsider.com/antonin-scalia-says-executing-
the-innocent-is-constitutional-2014-9)

What a country! :)

------
pcrh
Man... this is depressing...

I'm counting on you lot at HN and beyond to create the technology allowing
widespread encryption that makes such surveillance moot.

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rco8786
We all knew it was coming, but dang that was fast.

