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Warrantless wiretaps? Congress votes yes (arstechnica.com)
180 points by zoowar 1757 days ago | hide | past | web | 99 comments | favorite

You'd want to know but could not easily learn from this article that the wiretaps in question here pertain to foreign intelligence surveillance (ie, the government's authorization to spy on foreign entities).

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.
None of these points are to suggest that Wyden is wrong to be seeking accountability for FISA warrants or that nobody should be concerned about foreign surveillance or that there aren't real concerns that foreign surveillance is capturing lots of domestic communication.

And not one of those limits prohibits the NSA from copying all electronic communications that enter or leave the United States and reading through them all. Actually none of them prohibit the NSA from even reading wholly domestic communications.

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.

>Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever

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...

Just out of curiosity, assume one were to "wiretap" communications of any US government agency, what laws would be used against this? If they can do warrantless wiretaps, what differentiates their actions from anothers?

If they have no legal foundation for their actions, why should another's actions be illegal for the same exact thing?

There are plenty of laws. The problem here is that "law" doesn't mean anything if there's no one to enforce it.

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"

"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.

"may not intentionally target a United States person reasonably believed to be located outside the United States"

The trouble is that they're hoovering up every piece of data they can get their hands on. They never "intentionally target" anyone in particular. So all of the qualifiers are meaningless, because they do all the data collection ahead of time and the qualifiers listed only apply to what data they can collect, not what they can use it for (or who they can use it against) once they have it.

And really, at the end of the day any restrictions only govern what they can use in court.

Always tricky to prove intention, especially when so many related details would be secret.

The moral of the following retail pricing story is that it's profoundly difficult to assess the value of any product in a vacuum. Subjectively evaluating government acts presents the same difficulties as evaluating products; in both cases display makes all the difference in the world.

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 [1].

[1] https://www.youtube.com/watch?v=1CLhqjOzoyE

I recommend reading Greenwald's long article on this. I think he explains better than anyone else the absurdity of the situation and the shamelessness of the senators who voted for FISA and against the amendments to it:


If you want to have your biases confirmed, Greenwald is a very effective mechanism for doing that.

The downmods are undeserved. Knowing a bit about this subject, I find Greenwald's coverage to be some of the worst. People need to remember that he's not a journalist and his goal is not to inform. He's a pundit making an argument, and his arguments are often contrary to the facts.

Could you list some of the facts Greenwald has wrong in this article? He is indeed good for confirming my biases, and he litters his posts with so many quotes and links that it seems trustworthy, but I don't want to believe it if it's false.

Since Tom's already fisked the linked article, I'm going to stick to the broad strokes.

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: http://news.ycombinator.com/item?id=4979641

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.

While I agree that Greenwald mostly danced around the issue, I think there was some content to his exclamations. While I'm not terribly familiar with Jennifer Granick, I think she does a much better job explaining the FISA vs FAA debate [1]; her writing seems more objective to me. Presumably Greenwald leaves it to the reader to inform themselves? A strange idea, I must admit.

[1] http://cyberlaw.stanford.edu/blog/2012/11/fisa-amendments-ac...

Simple, honest explanation: the 2008 FISA law legalized warrantless surveillance on Americans living in America who were not suspected of any crime.

See, that's the problem. You believe this even though it's the exact opposite of the law as written. And by that I mean, no rational person with a basic grasp of the English language or US law could possibly interpret the 2008 FISA law to mean what you've claimed. However, you believe an obvious falsehood because you don't know the law itself, and are simply following what you've been told by misinformed or intentionally dishonest sources.

Thank you for exactly summing up my frustration with Glen Greenwald.

Yeah, you're a liar. Perhaps you missed the entire debate that went by the heading of "telecom amnesty", but that's on you.

Just out of curiousity: can you explain what the telecom companies were granted amnesty for? Parking tickets? Jaywalking? Or spying on Americans in America?

You mean, despite it saying the opposite. That they used slippery lawyer's words in drafting the 2008 amendments so that the bill meant the opposite of what it said.

The inaccuracies begin in the very first graf. Greenwald notes Obama's pledge to filibuster any bill that indemnified telcos for participating in unlawful surveillance, then moves the goalposts to suggest Obama abandoned that objective by casting a yea vote that indemnified telcos for (a) lawful surveillance (b) conducted under the color of an entirely new statute in (c) a bill that mostly consisted of new limitations on FISA surveillance powers.

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.

> moves the goalposts to suggest Obama abandoned that objective by casting a yea vote that indemnified telcos for (a) lawful surveillance (b) conducted under the color of an entirely new statute in (c) a bill that mostly consisted of new limitations on FISA surveillance powers.

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.[1] 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.

[1] http://www.fas.org/sgp/crs/intel/RL34600.pdf

I don't know how to respond to this comment, but would like to point out that these CRS memos (I've read a bunch of them today) are so. great. We really need to bump up the budget for the CRS.

That's OK. Sneering non-responses are also informative.

I hope you're not saying I provided a sneering response. I was trying to express appreciation for the link you offered.

Thanks for clarifying. In the context of not addressing the question over Greenwald's credibility it looked sarcastic to me. You see, it's very confusing if you express appreciation for something that seems to contradict your point but then don't address the contradiction.

I appreciate your graciously thorough response. Judging from this and other comments, are we all agreed then that the "programmatic" surveillance is quite concerning? Am I correct in understanding that even though it's not supposed to "intentionally" target US citizens, they can't even provide an estimate of how many citizens have been included, implying that perhaps many citizens in fact have been?

Sure, programmatic surveillance is concerning, and oversight is good, and more of it is needed. But people in this debate tend to forget that we are debating the oversight of our spies. How much transparency do we expect?

Spies? I'd call it Secret Police.

... why would you call it "secret police"?

Because that's what espionage against your own citizens, under the pretext of defense against external threats, for the purpose of defense from external threats and bespoke citizens, is.

No, it isn't. You need to read more about the East German and Soviet Secret Police.

Yes, it is. You need to read more about how Sweden does espionage. See how that works?

I was just going to respond with the boom headshot kitty, but I figured this was HN and not reddit so I'll just say thanks for the detailed education on a topic I knew nothing about.

I'm a bit confused by your first point: the claim Obama's spokesman made back in 2007 reads more like your 'entirely new promise' than what you suggest in your first paragraph.

Out of curiosity, what's your honest preference in the situation? Where do you come down?

I have a hard time believing that transparency and documentation requirements pose a real threat to our national security and, while I believe that there probably is a good-faith concern that new documentation requirements could further slow down a system that is already hugely overtaxed, I generally say "fuck 'em, figure it out". Oversight good. Transparency good.

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.

Ah, fair enough. I suspected your position might be a bit more nuanced than a casual reading of posts would've suggested.

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?

Given the scope and focus of FISA legislation that's extremely unlikely. It would be far easier to use some other legislative vehicle than try to shoehorn something into FISA that is already explicitly outside its scope.

No, I don't think that's at all likely.

Either your sarcasm is a great deal drier than I'm used to, or you're serious. Mind providing your reasoning?

I do not believe the US Government is a giant conspiracy to evade the constitution for the purpose of apprehending drug users. I believe that when the government seeks a warrant to surveil foreign targets for counterterrorism, their interests are actually in disrupting terrorism.

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.

The US government has a long history of using laws for much broader purposes than originally intended. The PATRIOT Act has many great examples:


I don't see why warrantless wiretaps would be held to a higher standard than similar prior laws.

Aside from what tptacek has to say, there's generally a strong distinction between intelligence and law enforcement that's more or less enforced by the exclusionary rule. Ironically, there might actually be benefits to outright warrantless wiretapping as opposed to use of the FISA court to obtain warrants, namely that any such wiretaps could only be used for intelligence purposes, never for law enforcement.

I want the truth about the topic, which sources are more accurate?

And what type of biases does Greenwald perpetuate?

I think FAS is a pretty good source. I generally find ACLU's takes to be honest and well-studied.

Then you will pardon me if I find it curious that the ACLU blog has linked to a Glenn Greenwald article on the FISA topic when he wrote at Salon.com


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: http://www.aclu.org/search/%22glenn%20greenwald%22 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.

For the other clueless folks: FAS seems to refer to http://www.fas.org/, and here is a helpful search to quickly find their info: https://www.google.com/search?q=FAS+fisa (I think.)

It really scares me that the only issues able to find bipartisan support in congress seem to be the bills that benefit nobody. The republicans and democrats can never agree when there is good to be done, but when they get the chance to fuck over the average citizen they're full of cooperation.

It's hard to support a rational argument that FISA mechanisms benefit "nobody". FISA's supporters in DHS and DOJ and DOD will point lawmakers to a litany of cases where FISA-backed surveillance saved lives. The issue is whether the cost of that surveillance is worth the increased safety.

FISA isn't even about increased surveillance. If the DHS thinks they need more surveillance to do their job, i trust them on that. FISA is about a lack of oversight and due process on the surveillance. In the litany of cases where FISA-backed surveillance saves lives, that same surveillance could have been performed with proper oversight and regulation, rather than what basically amounts to the whim of an investigator. The absence of regulation in this instance benefits nobody (except those who would abuse it).

I don't understand how FISA doesn't constitute oversight over foreign surveillance, unless you're of the opinion that spies should be required to get warrants to spy on foreigners.

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.

> a litany of cases where FISA-backed surveillance saved lives


No, YOU'RE a FISA-backed surveillance.

For those in here defending no oversight of FISA, note that the 2008 FISA revision included retroactive immunity for telecoms that had already been caught illegally monitoring Americans. Since then the program has been operating in complete secrecy, though there have been hints by Senators privy to classified information that alarming levels of spying on ordinary Americans is taking place. There have also been periodic leaks and whistle blowers hinting at massive data gathering operations. I think there is a big likelihood that ALL of our private electronic communications are being illegally monitored. The complete opposition to congressional oversight is another big hint that illegal activity is going on.

No, it immunized telcos for assistance in surveillance under the color of the 2008 FISA Amendments act.

Retroactively for what was illegal before the act was passed.

Sen. Feinstein, who I've voted for since I was 18, just lost a huge chunk of the respect I had for her.

This isn't anything new. Feinstein was a supporter of SOPA/PIPA (Boxer as well)

Huh? Didn't Feinstein speak on the floor of the Senate 4 years ago in favor of the exact bill they just renewed?

It's either Feinstein or the GOP nominee (third parties need not apply to Congress.) If the GOP were to nominate someone I agreed with more than her, I'd vote for them. They haven't, so I haven't. The lesser of two evils, while still evil, is at least less so.

I'd vote for her too if I had to, but this wasn't a surprising move on her part.

Sigh. Some things will never change. Surveillance will only increase, slowly. And like frogs in water that is slowly warmed we'll just all go along with it, until we're nicely cooked.

* 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.

Edit: Formatting

I'm confused by the title of this article. Do FISA warrants not count as warrants?

Ron Wyden explained the "general warrants" in FISA:


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.

This comparison is flatly hyperbolic. The general warrants the framers prohibited were a tool of harassment that essentially allowed agents of the British government to tear apart the homes and belongings of anyone they saw fit. You could be stopped, detained, intrusively searched, have soldiers enter your house and dump the contents of your drawers and cabinets on the floor.

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.

I'll go one farther. I think the current FISA law is better than the previous one. Yes, I do find the oversight provisions a bit weak, but it's better than the absence of any legal framework for targeting non US persons communicating via US systems.

This is where people get really confused, and most of what you read mis-frames it badly. The way US law has always worked is that our intelligence services and military can legally collect any and all communications between non US persons (ie. not a citizen, resident, visa holder, or company incorporated in the US).

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.

Isn't foreign spying great? Don't you just love it when the Chinese hack into our government and corporate systems and collect sensitive data? All for the safety of the Chinese people I'm sure.


Yes, if we just stopped spying on foreign powers, China would totally stop hacking into our systems.

I'm sorry, but do you expect any nation on the planet to use a well-developed intelligence capability any differently?

It's still a warrant, though, reviewed by eleven (?) judges, who are appointed for non-repeating terms.

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.

I agree, without secret courts or indefinite detention the stazi wouldn't have been able to eliminate threats to national security. When it comes to national security almost anyone could be a threat, and the police should be able to surveil them with out having to jump through the bureaucratic hoops. You really can't run a modern society on quaint ideals about 'rights' and 'liberties' foisted upon us by 18th century 'activists'.

Who is this comment responding to? Surely it's on the wrong thread, since FISA does not give the "police" the ability to surveil "almost anybody" withot "bureaucratic hoops".

I agree

Your comment started with a lie and didn't get any better.

Do you have any idea the kind of crazy non-sense that gets a warrant issued in "regular" courts? I'm happier leaving complicated decisions about intelligence to a group of experts who specialize in the field.

Ah, exactly! I posted this same question yesterday.


Jacob Appelbaum 29C3 Keynote: Not My Department


I sure hope this video gets more views, as this is one of the most important privacy talks this year.

Here is a more complete (but still short) article on the same topic [1], and here are the records of the votes for the passage of this bill, and the rejection of the three proposed ammendments (search for "00236" in the table) [2]. The second link is useful if you want to see how your representative voted.

[1] http://www.nytimes.com/2012/12/29/us/politics/senate-votes-t...

[2] http://www.senate.gov/legislative/LIS/roll_call_lists/vote_m...

Has FISA-authorized surveillance been found constitutional?

It's never come before SCOTUS directly (a technical question about whether lawyers can speculatively sue for information about specific cases was heard in October and will be decided next year) but has survived in lower courts.

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.

Late edit:

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.

No, because it has been very hard to even get a lawsuit against it accepted, either because NSA or the White House tried to dismiss the cases because they don't have standing, because they can't prove NSA is spying on them, or by using the state secrets privilege.

EFF has one case against it now:


This will sound silly, but after watching The Wire, I am tempted to support

FISA warrants would not help McNulty at all; they cannot be used to target people who reside in America.

This is not true, FISA warrants certainly target people who reside in America. That is the whole point of them. If Bob in afghanistan is talking to Sue in pakistan, no warrant is needed. The USA can spy on that all day. They only need to go through the FISA warrant process when the communication is in America.

Here is a good write up with details: http://belfercenter.ksg.harvard.edu/publication/19156/electr...

That's a great article, and thanks for it, but what I meant was that none of the criminals in The Wire were FISA-eligible targets; even "The Greek" (who was not Greek) was a lawful US resident.

Everyone is FISA-eligible: "which may include American citizens and permanent residents suspected of being engaged in espionage and violating U.S. law on territory under United States control" - http://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillan..., paraphrasing http://www.law.cornell.edu/uscode/text/50/1801 (b)(2)(C).

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?

That person must "knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power". I think Avon Barksdale can rest easy.

America is going to be destroyed by these ticks in government, these are the hyopthermia pains before the coming realization that we will not recover and be frozen to suffer death by slow freezing, this will take 20 years, but our great nation will fall.

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.

Surveillance is neither communist or socialist in nature. It is authoritarian, which has more to do with fascism than anything else.

Not that plenty of "communist" or "socialist" regimes haven't been awfully authoritarian...

Not that plenty of not communist and not socialist haven't been awfully authoritarian ...

For sure.

One could dryly observe that it would appear to be the capitalists, lenders, investors, and bankers that've caused this nation the most upset, one could.

The capitalists wouldn't be able to do much to dent the economy, much less the supporting fabric of the nation without their collusion with the government.

If you don't realize the government's more than sizable role in the most recent catastrophe, you haven't been paying attention.

It's clearly at the request of said capitalists, what with rent seeking behavior, quest for monopoly power and whatnot.

If you really believed that, you wouldn't have posted it in the largest hypertext system on earth, that is being mirrored and cached by a dozen other entities. Some of which are virtually immortal. (See: Google.)

Without anonymity anyway.

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