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Happy to be reading you in another thread. Questions:

* How does this process differ from domestic criminal law?

* What enforcement mechanisms does FISC have, and might those methods involve transactions with the federal courts in general?

* Doesn't Google have standing to sue the USG in addition to petitioning the FISC (in the manner, for instance, described by the Yahoo disclosure the NYT ran a couple weeks ago)?

* Similarly, don't the electronic providers have ways to engage the federal courts on the issue of gag orders?

I concede what I perceive to be your fundamental point, which is that regardless of the process used by FISC, the setting in which it operates makes it difficult as a practical matter for any other court to oversee their actions. But then, I wonder whether that's because in domestic criminal law, warrants are mostly confronted as a consequence of the exclusionary rule, and thus involves named defendants.




> How does this process differ from domestic criminal law?

Warrants in domestic criminal law are targeted at gathering evidence to be used in adversarial legal proceedings in which the target will have the opportunity to see the evidence against him and challenge its providence. And, because of the exclusionary rule, succesfully challenging the validity of the warrants in those adversarial proceedings can nullify the value to the executive of the warrant and the gathered evidence. This encourages circumspection on the part of the government in seeking warrants, since misrepresentation in the course of seeking the warrant can backfire when they attempt to use the evidence, even though the warrant process itself is non-adversarial.

This is decidedly not the case with FISA warrants; information gathered through them is, by design, principally supports extrajudicial action rather than adversarial legal proceedings. As such, there is little constraint on the executive with regard to FISC warrants.

> What enforcement mechanisms does FISC have, and might those methods involve transactions with the federal courts in general?

FISC warrants (what is at issue here) do not have enforcement mechanisms, as they are simply permission for the executive to engage in surveillance.

> Doesn't Google have standing to sue the USG in addition to petitioning the FISC (in the manner, for instance, described by the Yahoo disclosure the NYT ran a couple weeks ago)?

Not with regard to FISC warrants. Perhaps with regard to pen registers and trap-and-trace orders under FISA, issued by a judge (or magistrate judge) of the FISC, but those are distinct from surveillance warrants.

> Similarly, don't the electronic providers have ways to engage the federal courts on the issue of gag orders?

If you refer to the gag order that is mandated by FISA with regard to any pen register and trap-and-trace orders issued under FISA -- see 18 USC § 1842(d)(2)(B)(ii)(I) -- other than challenging the constitutionality of FISA itself, there doesn't seem to be much room to engage on that issue.


Three more questions:

* If the information obtained from the FISA process is useful exclusively in extrajudicial activity (or, perhaps more accurately, activities in the bailiwick of Article II) and can't effectively be deployed against citizens in criminal proceedings (not least because to do so would open up a can of worms regarding new standing to challenge FISA), AND the FISA process is targeted exclusively at foreigners and collects substantial information about citizens but only inadvertently, what injury is being inflicted on Americans?

That's a fuzzy question. Two specific ones:

* You say FISC warrants have no enforcement mechanisms and are exclusively permission for NSA to engage in surveillance. But the FAA 702 process has FISA engaging directly with American corporations. NSA appears before the FISC to obtain a 702 certification, which is nonadversarial and extremely unlikely to fail because a certification describes a target and FISA only allows targeting of foreign nationals. But once that process finishes, NSA gains from the 702 certification the ability to issue 702 directives, which compel Google to act. How does FISC enforce that action? If Google refuses, petitions FISC (as Yahoo did), loses (inevitably), and then refuses, what then? That's what I was thinking when I asked about enforcement.

* Why can't Google simply challenge the Constitutionality of the FAA 702 directive nondisclosure requirement? Didn't Google (or Microsoft, I forget which) just threaten to do exactly that?


> If the information obtained from the FISA process is useful exclusively in extrajudicial activity

FISC warrants are a subset of the FISA process; lets not drift.

> (or, perhaps more accurately, activities in the bailiwick of Article II)

I'll stand by my initial wording. It may or may not be that some or all of the extrajudicial action that is taken based on surveillance authorized under FISC warrants is also properly within the bounds of the executive's Article II powers (to the extent that action is, it may be Constitutional, but that still doesn't, in and of itself, make it a net social good.)

Its also not exclusive use, but the primary use. That it has other secondary uses, because those uses are incidental rather than the motivation for the surveillance, does not substantially constrain government action in pursuit of FISC warrants.

> and can't effectively be deployed against citizens in criminal proceedings (not least because to do so would open up a can of worms regarding new standing to challenge FISA)

It can be effectively deployed against people (including, but not limited to, citizens) in criminal proceedings, especially when the specific person isn't the subject or target of the surveillance.

> AND the FISA process is targeted exclusively at foreigners and collects substantial information about citizens but only inadvertently

The absence of effective constraints in the FISC warrant process is precisely why we cannot trust this to be the case.

> what injury is being inflicted on Americans?

Well, that question assumes a whole lot of stuff that you just interjected into the discussion and that I don't (as noted above) agree is reasonable to assume.

> You say FISC warrants have no enforcement mechanisms and are exclusively permission for NSA to engage in surveillance. But the FAA 702 process has FISA engaging directly with American corporations.

The FAA 702 (50 USC § 1881a) process is not a warrant process. Its actually one of the least problematic FISC related processes, since it actually provides for adversarial process, unlike the FISC warrant process for physical or electronic surveillance.

> How does FISC enforce that action?

Through its contempt powers.

> Why can't Google simply challenge the Constitutionality of the FAA 702 directive nondisclosure requirement?

Who said they couldn't?


It can be effectively deployed against people (including, but not limited to, citizens) in criminal proceedings, especially when the specific person isn't the subject or target of the surveillance.

I agree, but at that point aren't we talking about a federal criminal case held before a normal federal court?

(Incidentally, the reform I'd like to see is bright line restrictions against using the products of foreign intelligence to make domestic criminal cases.)

I worried the first question I asked might be too fuzzily worded to properly answer and now think I was right. Moving on:

If the only way the FISC can enforce orders and warrants is through its contempt powers, can't the subjects of those orders, ie a corporation held in civil contempt by FISC, appeal that? Doesn't that eject the process from FISC?

I'm trying to engage with the notion that the FISC is a black hole that moves the entire question of domestic surveillance coerced from US companies to a parallel court system.


> I agree, but at that point aren't we talking about a federal criminal case held before a normal federal court?

But at that point the surveillance generally can't be effectively challenged, since information obtained illegally in violation of someone else's rights isn't excluded from criminal cases.

> If the only way the FISC can enforce orders and warrants is through its contempt powers,

The FISC doesn't enforce warrants at all, as we've already discussed. The contempt answer was specifically about 702 orders. Please stop trying to rewrite the discussion.

> can't the subjects of those orders, ie a corporation held in civil contempt by FISC, appeal that?

Sure, they can appeal from FISC to the higher FISA court, the Foreign Intelligence Surveillance Court of Review, and from there to the Supreme Court.

> I'm trying to engage with the notion that the FISC is a black hole that moves the entire question of domestic surveillance coerced from US companies to a parallel court system.

It'd probably be more effective to engage with that idea by responding to someone embracing it.


Sorry, I didn't mean to imply that you were embracing it.


FISC warrants certainly have an enforcement mechanism - FISC allows for show cause and other motions to force compliance.

also "Not with regard to FISC warrants. Perhaps with regard to pen registers and trap-and-trace orders under FISA, issued by a judge (or magistrate judge) of the FISC, but those are distinct from surveillance warrants."

If by "FISA warrant", you mean production orders or surveillance orders to electronic providers, this is wrong.

See 50 USC 1861(f) and 50 USC 1881a(h)

Both make clear, as do the FISC rules, that FISA warrants and production orders may be challenged in FISA court by a party.

If by FISA warrants, you mean something the government can do on it's own without the help of anyone else, then yes, you are correct, you would have to challenge this when they use the info against you.




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