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Why We Should All Care About Today's Senate Vote on FISA (eff.org)
111 points by mtgx 1788 days ago | hide | past | web | 40 comments | favorite

In brief, the law allows the government to get secret FISA court orders—orders that do not require probable cause like regular warrants—for any emails or phone calls going to and from overseas.

Is it somehow shocking that a probable cause standard doesn't apply to national security intercepts of cross-border communication? Customs doesn't need a warrant to search your bags at the border, either.

The key point of FISA is not to legalize spying on communications among foreign nationals or between foreign nationals and Americans. Such spying has been considered part of the Executive's national security authority for decades. The key point of FISA is to ensure that intercepts between Americans that are subject to Fourth Amendment protections are avoided by design and deleted when discovered.

Congress couldn't obligate the Executive to get an "Army Court" order before ordering a division to take a city. There's a little more sense to the obligation here, since they're just as responsible as any other branch of the government for protecting Americans' Constitutional rights. But these orders aren't meant to act as warrants: They're oversight tools.

More specifically, they're oversight tools set up in 2006, following the awareness of the Bush Administration's use of warrentless wiretaps. The FISA revisions were to extend the flexibility of judges who were already allowed to retroactively provide legal permission up to 48 hours after the initial wiretapping began and approved over 95% of the wiretaps requested.

The Bush Administration simply refused to go through even that rubberstamp process. I was an intern in the House office where the initial compromise that became this bill was proposed, even if it was later named for a much more senior Congressman.

The FISA deal was a small retraction following a huge jump forward in intrusive government powers, so I'm proud to be supporting EFF's efforts to push privacy forward as much as possible, in light of the PATRIOT Act's overreach and similar during the past decade.

So do you think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo? Do you think the Constitution requires one?

I'm not a lawyer :)

Sen. Paul argues an absolutist position on the Fourth Amendment, that any sort of search/seizure of information involving US citizens requires a warrant. Do I agree? I'm certainly favorable to the interpretation of the Fourth.

However, my larger concern is the lack of oversight, even by the so-called "Gang of Eight" re: Intelligence committees: http://en.wikipedia.org/wiki/Gang_of_Eight

The government, under both the Bush and Obama administrations, has clearly engaged on systematic "overcollection," or going beyond even the allowable actions by the FISA law. It was a large scandal leading to the retroactive approval by congress through these FISA amendments in 2006: http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_co...

So I don't think the right question to ask is whether or not probably cause is the correct standard to use since it doesn't appear that government actors follow the assigned standard anyway. The question is of oversight and the reasonably effective ability to challenge such government behavior, as contrasted with the case of Nicholas Merrill and his NSL letter.

I'm asking about the Fourth Amendment issues because I think they're irrelevant, but most people who discuss this issue seem to think they're paramount.

Really, this is a separation-of-powers fight: How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying? The President has no obligation to obey laws that impinge on his Constitutional authority. Or to put it more gently, he's generally free to interpret those laws as broadly or narrowly as necessary to avoid that impingement.

So I can't get too worked up about the "systematic overcollection" argument. Unless you make it "systematic, deliberate overcollection of purely domestic communications". I am disturbed that the EFF seems to think it's advantageous to blur the distinction (using terms like "probable cause" and "warrants") and make it seem as if these programs are prima facie targeted at domestic communication and unconstitutional.

Not only am I not a lawyer, but I'm especially not a constitutional lawyer.

It seems that you're right that the general concern is about Americans who communicate with targets abroad, not purely domestic communications. However, I recall discussion in the office about chilling effects re: international communications that would harm US academics' abilities to collaborate abroad, which is the only example I remember at this distance.

The original article: http://www.nytimes.com/2005/12/16/politics/16program.html?pa...

My interpretation of the EFF is that while intent matters, and the intent of existing programs is to primarily target internationally, without oversight, there's no distinction between international and domestic wiretapping. We have little sense of what wiretapping does go on because it's all overseen by secret FISA courts.

Here's the '09 report on domestic overcollection: http://www.nytimes.com/2009/04/16/us/16nsa.html?pagewanted=a...

I think the EFF's point is: what protections does a US citizen have against being caught up in these wiretaps, considering the known flaws of the program and its operators? That's where the Fourth Amendment comes into play and questions over probably cause and warrants.

Given the fact that most of these things are done in near-total secrecy, how can you be sure that the "systemic overcollection" concern is what you say it is?

And what is a "purely domestic" communication in this context? Is this message board a domestic communication? A telephone call? A telephone call to a foreign national living in the US? I have no idea. How would I prove that it is or isn't?

I'm not some sort of paranoid that thinks that the government is out to get me. I do know that for routine criminal matters, the Federal government has incredibly broad and effective police powers, even with court oversight. Pre-9/11, the government was already able to gather lots of actionable information about the threat our nation was about to face (and fumbled the ball).

So I'm not convinced that all of this secrecy and lack of accountability is buying me anything as a citizen. Frankly, I'm concerned that by mindlessly gathering vast swaths of data, it will become exponentially more difficult to extract signal from the noise.

If the concern is that the executive is hiding facts from the legislative or judicial branches: those branches can appoint special prosecutors, independent counsels, or whatever it is you want to call them. There's obviously no foolproof mechanism by which anyone can absolutely ensure that the President or his team or the DoD will divulge information, but there are facilities the branches can use to hold each other accountable.

I participated in one such example of this oversight (most fun test I ever did).

We were hired by a Special Master that Congress appointed to conduct a pen test against a branch of the DoI without their knowledge[1]

[1] As part of this class action: http://en.wikipedia.org/wiki/Cobell_vs._Salazar

I see you're one of those John Yoo types that think the president can do anything he wants, including torture children, without any oversight because we are in a never-ending undeclared war supposedly authorized by congress in 2002's AUMF to attack Iraq. Not only is that interpretation illogical and authoritarian, it is also immoral and is leading to the loss of faith and the unraveling of American Democracy. I believe that attitude is doing more damage to America than a terrorist ever could.

This is such a terrible comment that I flagged it. There is no way to go from what 'twoodfin wrote to "I see you're one of those types that think the president can torture children"; you had to make several assumptive leaps, all hinging on identity politics, in order to make that inflammatory and thoroughly stupid claim.

If you actually read what 'twoodfin wrote without immediately flipping the breaker in your head labeled "David Addington", you'll find you can't even discern his take on executive branch powers. What he's saying is on its face so true as to be banal: Congress cannot in fact pass laws that alter the balance of powers erected in the Constitution.

I don't know how much damage Yoo and Addington's misconceptions about the limits of executive power did to the country. Like you, my guess is "nonzero". But I have a pretty clear read on how damaging comments like yours are to the discourse on this site: immense. Stop it.

Congress has the power to declare war. The constitution says nothing about spying, congress can ban it if it wants to. People such as twoodfin and yourself that claim that the president is unrestrained in these types of issues from any congressional oversight are basing their arguments on the convoluted "unitary executive" Bush-era legal doctrine that claims that once congress authorizes war the president can do anything he wants without any oversight, and they say congress authorized the current war in 2002's AUMF in Iraq.

FYI, you're supposed to flag comments for being spam or offtopic, not because you disagree with them, from the site FAQ: "If you think something is spam or offtopic, flag it by going to its page and clicking on the "flag" link. (Not all users will see this; there is a karma threshold.) If you flag something, please don't also comment that you did."

Oh, look. Now I support the torture of children too! You're not even reading comments; you're just slinging muck.

You seem to be outraged by the idea that these legal theories lead to the conclusion that the president can torture children. That idea has been discussed in several legal and political circles, see http://en.wikipedia.org/wiki/John_Yoo#Regarding_torture_of_d...

No, I'm reacting to the fact that you didn't even read my comment, but instead assumed that anyone who would take issue with the way you constructed an argument must believe in Yoo and Addington's interpretation of the Constitution. Just stop digging.

twodfin said about spying: "The President has no obligation to obey laws that impinge on his Constitutional authority." Congress passed FISA to restrain president Nixon's abuses. The statement that the president can ignore those laws doesn't make sense unless you believe the President can not be restrained because he is using his "commander in chief" powers in a war time situation.

You repeated the same idea, again with regard to spying: "Congress cannot in fact pass laws that alter the balance of powers erected in the Constitution."

Maybe you guys aren't coming up with these assertions based on John Yoo's theories, if so I apologize for lumping you together, but it sounds like the same ideas to me: that congress can't restrain the president at this point because we're at war. If it's another legal theory let me know.

> Just stop digging.

What is it about my comments that is so beyond the pale to you?

Whether we're at war or not has nothing to do with it (except insofar as you take the Bush Administration's argument that AUMF implicitly granted wide-ranging foreign espionage authorization under FISA). As tptacek pointed out, my argument is fairly banal and should be uncontroversial: If a law can be interpreted in any way that avoids usurping Executive authority, the Executive can and should interpret it that way. This is not dissimilar from the Judiciary's general practice to read Congressional statutes as constitutional if there's any such plausible reading.

If Congress passed (over a veto) a law tomorrow requiring the President to fire his Secretary of State, that law would be unconstitutional. The President wouldn't need to wait for the Supreme Court to overturn it, he could simply refuse to obey it, and he would be right. That has nothing to do with John Yoo or whether or not we're at war.

(A similar issue actually came up during Reconstruction: The Tenure of Office Act was unconstitutional, and Johnson was right to violate it, though it got him impeached.)

You weren't making a generic separation of powers argument, you were referring to the specific case of spying laws: "How much permission from Congress (and oversight by Congress) does the President need to authorize varying degrees of spying?"

I say he needs all permission in the world if congress tells him he can't do it. You seem to know of some constitutional spying power that would allow him to ignore congress. Please inform me what this constitutional clause is.

He's not saying anything like that. You keep doing this: someone makes a technical point about how the Constitution works, and you ask them why they haven't stopped beating their wife yet. Could you please engage with the actual issue?

Again: what do you think happens if Congress passes a bill requiring the President to fire his Secretary of State?

I'm really at a loss, I don't understand why we keep talking past each other. I'm willing to accept that I'm misunderstanding something here but I don't see it.

Yes, congress cannot impinge on the President's constitutional powers, can't force him to fire his Secretary of State. But spying is not a constitutional power, unless you accept the AUMF war-time Commander in Chief argument. Which is what set off my John Yoo detector.

Huh? Where in the Constitution is Congress given authority over "spying"? At all times, not just when authorized to use military force, the executive branch controls the military and governs foreign affairs. Your comment makes no sense.

Congress makes laws that cover the military, its all checked and balanced. There is no special exempt presidential power defined.

The phrase "absolutist position on the Fourth Amendment" is oxymoronic. The 4th amendment does not say: "you can't search Americans without a warrant and probable cause." It says "searches can't be unreasonable and also warrants require probable cause."

Interpretation of the 4th amendment has to give due weight to the wiggle word "unreasonable" as well as the historical understanding of what kind of searches required a warrant and what kind of searches do not.

I use "absolutist position" in the sense that Justice Black used it when applying it to the First Amendment. Yes, in that case, it's an absolute position: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;"

So you're right that Sen. Paul is more taking a narrow view towards "unreasonable" rather than being absolutist.

However, when it comes to digital information, we have little historical precedent to rely on. Right now, the law governing digital storage, the Electronic Communications Privacy Act of 1986, says that all email stored over 60 days is considered abandoned and can be requested from the storage depot (Gmail, often) without a warrant and without notifying the nominal owner (me).

First, your notion of Black's absolutism is hyperbolic (I'd also ask you: did Black ever actually say that, or are you attributing to him Wikipedia's description of his work?). For instance, the Vinson and Warren courts didn't overturn statutes regarding fraud, which are clearly restrictions on freedom of speech.

Second, it's easy to be an "absolutist" about free speech, because the First Amendment is very clear. "Congress shall make no law abridging the freedom of speech." But read the Fourth Amendment carefully and notice that it is not written as strictly. "The right of the people to be secure in their persons, against unreasonable searches shall not be violated." What's "unreasonable"? If the framers didn't want the Supreme Court constantly grappling with that question, they'd have written the amendment differently; it's not as if it didn't occur to anyone to write "Congress shall make no law enabling searches or seizures without a warrant, and no warrant shall issue without probable cause". But they didn't write that.

It's 180 days, by the way, isn't it? Not 60?

The historical precedent is easily adapted to digital information. Historically, international communications were not protected. The government can inspect any package you send outside the U.S. and any package you receive from outside the U.S. So why should the same not apply to electronic communications? Historically, information you gave to third parties was not protected. The government doesn't need a warrant to get Kinkos to give them the documents I printed there. Why should the government need a warrant, then, to get Google to give them the documents I have on my Google Docs account?

Interesting. I was more thinking along the lines of how copyright is increasingly digital and increasingly out of touch with the 1791 state of copyright, as per the Derek Khanna article.

Definitely not something I know much about, though. Thanks.

I do.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That says nothing about being american, or a citizen, or the distance between the people involved. It just says something that should be common sense - people have a right to be protected against unnecessary search and seizure.

Citizens at the border have a lowered expectation of privacy. This is well-known and understood principle of national sovereignty (protecting a border is one of the core principles of being a soverign entity).

So the 4th amendment doesn't apply to border searches as a routine search is not an unreasonable one to (re)gain entry.

Making an international call to a business associate from Chicago to Cairo seems pretty obvious that I have as reasonable expectation to privacy as I do calling my business associate in New York. So, the answer is yes the Constitution does require a standard. The specific standard of probable cause is up to the judiciary to determine not found in the Constitution. I suppose if I was calling a known terrorist organization or conducting business in a war zone I would know that I have a much lowered expectation of privacy, for example.

FISA was simply a way to avoid the national security implications and backdoor the judiciary oversight by setting up a "fake" judiciary. Apparently we can't even trust public elected officals in Congress or on the bench to keep the public's interest in mind as they would divulge national secrets to the national enquirer at first opportunity or whatever. Not like we can trust the checks and balances on the legislative branch to function as intended </sarcasm>.

The concept of secret police and oversight by secret courts would be repugnant to the founders and should be to any citizen. Regarding the obtaining of communications between foreign nationals of which no citizen is a party, I have less to say. Espionage and counterterrorism is a dirty and necessary game played by every nation but conducting as wide a sweep as what is implied here in my opinion is bad policy because the cost to diplomacy and normal trade relations between nations is much too high. It invites and even necessitates a response that is chilling.

Yes, I think there should be a "probable cause" standard to warrant intercepting a call between Chicago and Cairo, especially when the people on each end of that call are American citizens.

> Is it somehow shocking that a probable cause standard doesn't apply to national security intercepts of cross-border communication?

USPS regulations prohibit reading of letter-mail crossing the border unless a warrant has been obtained.

So the answer is yes, it's shocking. Your email has fewer privacy protections than the same email printed out and mailed.

> The key point of FISA is not to legalize spying on communications among foreign nationals or between foreign nationals and Americans.

You may have entirely missed the debate a few years ago about amnesty for telecoms who participated in spying on Americans, directly against the law, but, well, that's on you.

In fact FISA at its last renewal was expressly and completely about legalizing spying on domestic communications between Americans. Which it did.

Customs can search all incoming and outgoing USPS mail. The statute says so explicitly, and mentions the USPS directly. I think you might be thinking of state borders.

CBP enforces laws about what physical things can cross the border. CBP doesn't spy on the content of first-class letters, and cannot, without a warrant.

I'm sorry, but you have no idea what you're talking about:

107 H.R. 3009 http://www.govtrack.us/congress/bills/107/hr3009/text :

SEC. 344. BORDER SEARCH AUTHORITY FOR CERTAIN CONTRABAND IN OUTBOUND MAIL. (a) IN GENERAL- The Tariff Act of 1930 is amended by inserting after section 582 the following:


(1) IN GENERAL- For purposes of ensuring compliance with the Customs laws of the United States and other laws enforced by the Customs Service, including the provisions of law described in paragraph (2), a Customs officer may, subject to the provisions of this section, stop and search at the border, without a search warrant, mail of domestic origin transmitted for export by the United States Postal Service and foreign mail transiting the United States that is being imported or exported by the United States Postal Service.

FYI, all the amendments meant to "fix" FISA on privacy issues were rejected. The one from Rand Paul that required a warrant for all spying and data requests on American citizens, just like currently a warrant is required for snail mail and phone call spying - was rejected 79-12. America - the land of the free.

Isn't having your request to obtain information reviewed by the FISA court judge kind of like having a warrant issued for it?

I also thought that part of the point of the FISA court was that it contains the spread of classified information to just a few judges, who gain increasing expertise in understanding how to handle it, rather than spreading classified info all over a sea of amateurs.

Video and transcript available at http://www.c-spanvideo.org/program/SenateSessionPartOne2

Starts at 13:55.

Was there a vote at the end?

it's really funny when you read this article and you are called "fisa" :)

So how did it go?

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