You'd probably also want to know that the hotbutton issue actually at play in this authorization is programmatic surveillance, which is what it sounds like: automated collection and analysis of intercepts. The statutory problem with programmatic intercepts is not that they're unlawful, but rather that FISA ss written required individual suspicion for every captured communication, which is logistically intractable for this application.
The law as written limits the application of programmatic surveillance authorizations:
An acquisition authorized under subsection (a)–
(1) may not intentionally target any person known at the time of
acquisition to be located in the United States;
(2) may not intentionally target a person reasonably believed to be
located outside the United States if the purpose of such acquisition
is to target a particular, known person reasonably believed to be in
the United States;
(3) may not intentionally target a United States person reasonably
believed to be located outside the United States;
(4) may not intentionally acquire any communication as to which the
sender and all intended recipients are known at the time of the
acquisition to be located in the United States; and
(5) shall be conducted in a manner consistent with the fourth
amendment to the Constitution of the United States.
Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever to verify they are being followed and Congress has vowed to immunize from liability everyone who violates them.
Americans: your government is reading your email. There are no qualifications on that statement. Most especially if you are a dissident of any sort.
Just as a reminder, FISA was passed because in the early 1970's, a Senatorial investigation showed that the FBI and NSA were illegally wiretapping the fuck out of law-abiding peace groups and civil rights organizations. It is certain that this is occurring today, again.
What kind of specific oversight would you be satisfied with?
There are after all FISA Courts explicitly for the oversight purpose: http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...
If they have no legal foundation for their actions, why should another's actions be illegal for the same exact thing?
Will wiretapping laws be enforced against you? Yes. If you wiretap the government they're going to do a Bradley Manning on you - solitary naked confinement.
Will wiretapping laws be enforced against the President, the NSA, the FBI, the CIA, Verizon executives, Level3 executives, and so on? No.
There's consensus among the Congress and Judiciary and President on those two things.
And that's the problem. The words of the law are meaningless if enforcement depends on who the violator is.
"in the United States"
What about "outside the United States". If all traffic is routed elsewhere, would that still count? I'm no fan of Hank Johnson - but I wish he'd amended his questions to get an on-the-record statement about whether communications are ever routing outside the country to circumvent wiretap laws.
For the story, imagine you're a plastic surgeon in Los Angeles, and you want to buy your wife a fur coat this Christmas.
To be expedient, you visit Hunky Dory Coat Factory on Rodeo Drive. A delightful antique display and friendly faces greet you upon entry. Decorative plants, backlit with colorful lights, are beautifully positioned next to a grandiose marble checkout desk. You make your way forward and an unobtrusive attendant smiles kindly in your direction. Dark mahogany wooden floors span the interior, glimmering in the light as you see the coat you came for. As you inch closer, you know it's the one, but you can't help noticing every coat at Hunky Dory costs over $5,000. You pick up your wife's desired coat despite much apprehension. You go straight for the price tag, slowly turn it over, and incredibly, it's only $1000. "What a tremendous deal," you think to yourself.
Now take a look at what happens if we repeat the above at Dilapidated Coat Factory.
Dilapidated Coats is located in a crummy old warehouse with high ceilings and noisy industrial fans. The coats hang from a dusty rack on the opposite wall with no organization. The floors are unfinished concrete and the walls are chipping paint. As you move closer, you notice that most coats on the rack cost under $50. But to your surprise, you come across the perfect fur coat for your wife. You inspect the price tag, and you're shocked to find it's $1000. You leave disgusted.
The point is, when the product's environment changes, the price you expect to pay changes too. Perceived value is driven by environmental factors. Display makes all the difference.
It follows that how you perceive isolated US government actions greatly depends on whether you favor the state of America's economic and political affairs. Just like Hunky Dory's extravagant display made a $1,000 coat look like a deal next to $5,000 coats, if you think America is truly incapable of repeating history, you may think all American laws are passed in good faith, or rationalize all government efforts away as positive.
Surveillance, being a precursor to force, is at least worthy of extra scrutiny.
First and foremost, the U.S. Constitution was expressly designed to limit government power. By this logic, in order for the US Government to make good faith interpretations to the Constitution, legislative measures must err on the side of limiting government power, surveillance measures included. Under no circumstances should any new measure conceivably facilitate tyranny, nor should the measure employ clever word games to enable such a scenario.
If you can entertain the notion that the American government has been corrupted by money and outside influence, and that the US Dollar isn't infallible, you may start to consider the possibility of a scenario where surveillance measures like this one are used to restrict freedoms, and increase government power during stressful times in order to perpetuate failed systems. Therefore it matters greatly whether the political and economic environment looks Dilapidated to you. You're free to think it's Hunky Dory. That is your choice.
Assuming the US government is acting in its own interest, even if it were OK to monitor international communications for increased security, it doesn't compel the government to codify rules into law with hedge words like "intentionally". To think, the subversion of your Constitutional rights now hinges upon whether surveillance qualifies as "intentional" according to a legal scholar's interpretation. The use of the word "intentional" here shares the same audacity as the NSA's classifying of American communications as "intercepted" vs. "stored". Either way the NSA gets to summon your records on demand, so who cares whether it's technically "intercepted". Just the same, who cares whether surveillance is intentional or not? This bill appears in effect legalizes dragnet surveillance over the American populace. According to William Binney, surveillance is already done dragnet style across the entire US populace, so it's not like they're ever going to "Intentionally" surveil most American citizens anyway. They do it by default, they do it today, but now they get to point at this word "Intentionally", and claim state secrets privileges while strong-arming the populace out of their Constitutional rights.
I urge you to watch billionaire investor Dr. Michael J. Burry's commencement address at the 2012 UCLA Department of Economics .
Greenwald's ongoing claim is that the 2008 FISA bill legalizes "warrant-less wiretapping"; however, warrants have never been required for targeting intelligence collection on non US persons. In fact, the main impact of the 2008 FISA bill was to explicitly specify collection and oversight standards for targeting non US persons communicating over US systems. Previously, this had been an open legal question, as I explained in a bit more detail here:
So, my big problem with Greenwald is that in all his discussion of FISA he's never provided a simple, honest explanation of how and why it changed in 2008. He uses scare words and sweeping hyperbole, but doesn't address the actual facts of the matter. I'm all for an informed debate on how (or even if) FISA should be implemented. However, you can't have that debate if you refuse to be even cognizant of the current facts.
Thank you for exactly summing up my frustration with Glen Greenwald.
Just out of curiousity: can you explain what the telecom companies were granted amnesty for? Parking tickets? Jaywalking? Or spying on Americans in America?
In other words, Greenwald invented an entirely new promise for Obama ("I will filibuster any bill that indemnifies telcos for any reason in concert with surveillance of any sort") and then cited him for a "blatant, unblinking violation of his own clear promise".
The lede of the cited article is incorrect, misleading, and pointlessly and unproductively political.
Next graf: continuation of same broken argument. Still no details about what the 2008 FISA Amendments Act actually said.
Next graf: invocation of Dick Cheney (the Democrats controlled the US Senate when the FISA Amendments Act passed, and Jay Rockefeller is no political ally of Cheney's; evidence for Cheney's actual input in the act: zero). Still no details about what the 2008 FISA Amendments Act actually said.
Next graf: multiple misrepresentations about the purpose of the FISA court and the conduct the Bush administration conducted that provoked outrage. Still no details about the 2008 FISA Amendments Act, which, contra the actual text of the article so far, specifically forbids the government from intentionally targeting American persons or persons residing in America.
Next graf: dishonestly conflates Wyden's proposals for increased accountability with Paul's showboating attempt to rewrite all existing rules regarding electronic communications to exempt any such communications stored in Google; in other words, foreign powers would be immune from spying so long as they used GMail.
Next graf: begins with "consider how modest these amendments are". Continues with suggestions that all the amendments he's mentioned are reasonable and well-thought-out. Note again here that Wyden himself didn't offer an amendment that required warrants for foreign intelligence or individualized suspicion for programmatic intercepts.
Next graf: still not having directly explained any of the contents of the 2008 FISA Amendments bill, Greenwald predictably fails to mention that the NSA is already forbidden by that bill from surveilling US targets when he mentions Wyden's bill requiring warrants for surveillance of US targets. Here Greenwald again carefully lawyers the words "US Soil" to implicate the idea that the NSA is spying on Americans. Merkley's amendment, "modest" by clear implication, suggests that a court whose purpose is to ensure that spies are spying on foreign targets and not Americans should be compelled to release the details on American spying to the public.
Next graf: no problems, straightforwardly confirms that the Administration opposes amendments that would have the net effect of immediately halting in-process foreign surveillance operations.
Next graf: Dianne Feinstein is now "conservative-Democratic" despite 100% ratings from reproductive rights groups, environmental groups, the Human Rights Campaign, arts groups, and, according to Votesmart, an 87% score from the ACLU. Why? because Feinstein supports something Greenwald opposes, falling into his no-true-Scotsman trap.
Next graf: Obama relied on Republicans (the "root of all evil") for an act that passed overwhelmingly.
Next graf: the 2008 FISA Amendments act, which Greenwald still hasn't discussed in detail, is now a "massive increase" in the government's surveillance powers, when in fact by statute it limits those powers; the "massive increase" comes from statutory authority to conduct programmatic surveillance of foreign nationals without individual findings for each person involved, a detail you can count on Greenwald not to share with you.
Next two grafs are quotes, but check your wallet after reading them.
Next graf: the 2008 FISA bill is flawed (sure), and Obama demands its renewal "without a single change". No: Obama failed to support any of the amendments offered for the bill, which is obviously not the same thing as a refusal to entertain any changes to the act at all.
Next graf: Rand Paul's "modest" amendment to the PATRIOT act, which would have exempted gun dealers (and nobody else) from PATRIOT-motivated subpoenas. Greenwald doesn't take the time to tell you what this amendment was because he would sound stupid explaining that in late December 2012. Also: Harry Reid is Dick Cheney.
Next two grafs are quotes.
Next graf: "if you try to debate the PATRIOT act", for instance by proposing a last-minute amendment exempting gun dealers from subpoenas in terrorism investigations, Reid suggests you support the terrorists. Of course, in neither of the preceding two quoted grafs does Reid say anything like this.
Next graf: plutocratic Dianne Feinstein, instrument of the national security state (with an 87% ACLU scorecard) is similarly demonizing people with concerns about the 2008 FISA Amendments act.
Here I give up. By all means. Cite Greenwald as if he's an objective source.
On (a), how or why can one be indemnified for lawful activity?
The bill to which Greenwald refers does in fact grant retroactive immunity from lawsuits seeking to show that the telco's participation was unlawful. Such lawsuits would occur because other parties to the activity are protected by other mechanisms.
On (b), not sure what you mean by 'under the color of'. Hopefully not a reference to retroactive legalisation.
(c) doesn't seem at all relevant to the specific point here.
On the other hand, the message board response to FISA appears to be a blanket call for an end to spying period. I'd love to live in a world where nobody needed espionage or intelligence services, but I'm not interested in litigating whether we actually live in that world now. As long as FISA isn't perverted into a tool for bringing drug charges against Americans, I'm not very concerned about the underlying mechanism.
I think Rand Paul is just showboating.
I wish Leahy's amendment requiring warrants for domestic electronic mail older than 180 days had succeeded.
As long as FISA isn't perverted into a tool for bringing drug charges against Americans
You and I do both realize what will probably happen here, right?
That doesn't mean I think we have effective counterterrorism (for instance, there's widespread evidence that CIA uses, or at least for a long time used, torture to attempt to obtain information in counterterrorism cases; torture is morally repellent and, equally importantly, demonstrably counterproductive), or that I think terrorism is legitimately the key federal goal that DHS and CIA claim that it is.
But I don't subscribe to the slippery slope argument that suggests that the government will inevitably use every power we give it for any purpose to, I don't know, enforce the Comics Code Authority.
I don't see why warrantless wiretaps would be held to a higher standard than similar prior laws.
And what type of biases does Greenwald perpetuate?
And you'll also pardon me that I find it curious that Glenn Greenwald has been asked to give speeches at ACLU events.
"On Thursday, May 26th, 2011, award-winning Salon.com columnist and New York Times-bestselling author Glenn Greenwald gave a fiery address to attendees at the ACLU of Massachusetts annual Bill of Rights Dinner. He described how the Obama administration has aggressively defended--and at times expanded--the Bush White House's attacks on civil liberties, expansion of government surveillance and secrecy, and executive power assertions in the ''war on terror.'' He argues that this continuity between the two major political parties spells long-term trouble for the Bill of Rights in the United States, and suggests that the work of the ACLU is crucial to reestablishing the rule of law."
In fact Mr. Greenwald turns up on their site again and again:
Knowing that Greenwald trained and practised as a lawyer you should realise that the ACLU is one of the few organisations he points to as standing up for the average citizen against the possible (read actual) tyrannies of government.
I know you're a smart guy: may I suggest that there is some cognitive dissonance at play between your statements, "If you want to have your biases confirmed, Greenwald is a very effective mechanism for doing that." and "I generally find ACLU's takes to be honest and well-studied." given that these two actors practically seem to sing from the same hymn sheet.
These arguments always seem to point out how FISA is nothing like a criminal court, as if that was a dispositive argument. FISA isn't supposed to be like a criminal court. The purpose of FISA is to ensure that our foreign intelligence services don't spy on our own citizens, and not much else.
* There is no terrorist lurking under every rock and behind every corner.
* 9-11 will repeat itself, because the context is changed now. Passengers can no longer assume that they will get away alive by complying, so they will fight back.
* These things do not have to be carried out in secrecy.
* These measures are ineffective anyway. Anybody who is able to pull of planting an impactful bomb somewhere in the US can most definitely also figure out how to securely communicate or how to hide a communication.
It's not like normal warrants. It's warrant that is in effect for a year and allows them to spy on everyone for that whole year. But of course they will get it renewed every year. The idea of a "FISA Court" is a joke. The only reason they even have that extra step is to say they "go through Court". But it's just like not having it at all, because everything they are doing gets approved. If FISA was a proper law, the warrant should be asked from any regular Court.
The similarity he's trying to invoke is between the probable cause requirement of a criminal warrant and the lack of any targeting whatsoever in a general warrant. It's obviously true that a FISA warrant is less targeted than a domestic criminal warrant. But FISA warrants also also much less intrusive than a criminal warrant, and, like airport searches (which are entirely warrantless and nonetheless constitutional under administrative search), serve a safety goal instead of a criminal evidence collection purpose.
FISA warrants also are targeted, unlike general warrants. The FISA court exists to verify that actual investigations are being served by the warrants. It's not hard to see why FISA warrants are rarely rejected: the government is not actually in the habit of randomly surveilling people outside of actual investigations.
Heading a series of unproductive responses off at the pass: seeing the logic of the "yea" votes in the Senate on this issue does not mean that I agree with them.
Now, this gets complicated if you have communication between two non US persons transiting a system in the US. Under the old FISA law there was no provision for handling this case, and there was a very credible legal argument that unrestricted collection of such communication was entirely fine under existing laws and presidential directives. So, after 9/11 the Bush administration decided to use that argument to compel various US telecom providers to grant access to these non US communications. (They did other stuff too, but that's the big one that the FISA law changed.)
People legitimately got freaked out at various things when the FISA situation went broadly public. And it really is a bad idea for the government to be able to press companies into providing foreign intelligence collection capability with no oversight. However, the intelligence community had actually been complaining about exactly this situation for decades earlier, because their conservative approach (prior to 9/11) had been to push everything through the FISA courts (which issued an order intended for targeting US persons). So, members of congress already had a bill mostly written to reform FISA for this case of non US person communications transiting US systems. That's the basis of the current FISA law.
So, that's where this whole warrant-less wiretapping thing comes from. The executive branch can now authorize collection for up to one year if various criteria and oversight are met, including a reasonable expectation that the collection will not contain any communications between US persons. And that authorization has the power of a warrant in that it can be used to compel service providers and telecoms to comply. As always, if all parties are non US persons and the systems used are outside the US then FISA doesn't apply at all, and the targets are simply fair game.
I definitely agree with Wyden's proposal -- that there be more transparency in this process, even if it's heavily redacted. Even he and his colleagues recognized and respected the need for keeping at least some amount of secrecy with cases like these, where they can't be brought to a regular (read: public) court. I found his suggestions to be sane and level-headed, and I think that if it hadn't been left to the last minute they'd have had a much better chance.
What I do not find sane is articles like this that declare that there aren't warrants involved, that there isn't probable cause. I think that that's misleading and sensationalist.
Your comment started with a lie and didn't get any better.
I'm obviously not an expert but the odds seem very high that warrantless electronic surveillance of specific foreign targets will be found constitutional; warrantless searches of Americans are constitutional in many circumstances.
It's important to remember that "constitutional" is not a synonym for "correct". There's a lot of things we could do that are constitutional but ridiculous.
Note that while it's hard to find FISA case law, it's not as hard to find case law on the principles animating it. Here's SCOTUS, US v US District Court 1972:
Moreover, we do not hold that the same type of standards and
procedures prescribed by Title III are necessarily applicable to this
case. We recognize that domestic security surveillance may involve
different policy and practical considerations from the surveillance of
"ordinary crime." The gathering of security intelligence is often long
range and involves the interrelation of various sources and types of
information. The exact targets of such surveillance may be more
difficult to identify than in surveillance operations against many
types of crime specified in Title III. Often, too, the emphasis of
domestic intelligence gathering is on the prevention of unlawful
activity or the enhancement of the Government's preparedness for some
possible future crisis or emergency. Thus, the focus of domestic
surveillance may be less precise than that directed against more
conventional types of crime.
EFF has one case against it now:
Here is a good write up with details: http://belfercenter.ksg.harvard.edu/publication/19156/electr...
Certainly it makes sense for the NSA to store all communications by FISA-eligible persons, if they can. With the Bluffdale datacenter, storing connection information becomes feasible. I worry about the interpretation of the FISA law where potentially anyone is FISA-eligible. Do you have reason to believe that the NSA would reject that interpretation?
More fundamentally, is it acceptable for lawmakers to pass FISA in its current form if it allows that interpretation? If so, what would make the law unacceptable?
As hackers we must prepare to plant the seed for a superior nation when we are overrun by communists, socialists, corruption in every layer of government and business, and bleed from so many ticks and parasites that the collective dies from an unexpected shock to our system.
this is our writing on the wall. you have been measured and found wanting.
If you don't realize the government's more than sizable role in the most recent catastrophe, you haven't been paying attention.
Without anonymity anyway.