There are a lot of interesting things in there. For instance g.1.B allows wiretapping BEFORE they get the FISA rubber stamp. (But the warrant is still required to be sought. Whether this is done in practice is another question, but the warrant is still needed.)
However to me the single biggest red flag is g.4 which reads, A certification made under this subsection is not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted.
Why is this interesting? Well compare with the 4th amendment, with the important bit highlighted by captitalization, 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 person or things to be seized.
How can anyone pretend that this law is constitutional???
> How can anyone pretend that this law is constitutional???
The whole premise of FISA was to add an additional layer of protections in situations where no Article III warrant was necessary in the first place. Before FISA, to the extent that the target had no 4th amendment rights (foreign intelligence agent) or the monitoring in question was not a "search", then the government could do whatever the hell it wanted. FISA created an additional layer where the government had to get a FISA warrant to engage in that activity. Because the 4th amendment wasn't implicated, it was unnecessary for FISA warrants to meet the particularity requirements of Article III warrants.
The argument, thus, is "what is a search?" Is collecting AT&T's call data records a "search" that requires a Article III warrant? If not, then a "give us everything" FISA warrant is not unconstitutional. I imagine that's the interpretation the NSA is operating on.
The problem is that the 4th has not, in my opinion, been satisfied. I'm not happy with all of my data being sucked into a database which is a very tempting target. The administration does not think this violates the 4th, I think it does.
But even if we grant their theory that it does not violate the 4th, there is no question that searches have been conducted under any definition of the term that can and do accidentally sweep up Americans. Proving that it happened to you, individually, is very hard. But it happens. The 4th is violated. And once it is, we're dependent upon the good will and honesty of the government to forget what they saw that they were not supposed to do so.
The standard which I want to see for all parts of the Constitution - including the 4th - is that the burden of proof is on the government to guarantee that no wrong is done. That, in another context, is the whole point of habeas corpus. The same standard should be applied here.
As a US citizen who grew up in another country, 50.1% confidence does not comfort me. As a person who has seen people with privileged information who were not supposed to leak it leak it in lots of other contexts, I have little trust that government spooks are going to be better. (In one example, a stalker bribed the CA DMV to find the address of the car owned by a woman I know.) As a person who has seen databases abused, I know how easy that is to do once you've centralized data. (One amusing example involved a woman who worked in a bank who did a search for all single men in a particular age range with incomes over a certain threshold in a particular geographic area...) And once you've centralized the data, I think it is just a question of time until bad actors manage to get their hands on copies of it all.
Yes, I know that the people who are doing this are convinced that they are saving the world. But in the long run, their actions scare me more than the terrorists that they claim to be protecting me from.
How can anyone pretend that this law is constitutional???
It's easy. Just cover your ears with your hands, and then rock gently backwards and forwards and mutter under your breath: "the terrorists... the terrorists... the terrorists...". Recent studies have empirically shown that this will allow you to pretend whatever the hell you want.
Because it regulates foreign surveillance, not domestic law enforcement. Similarly, the Army doesn't need to honor the 4th Amendment when in a combat theater abroad.
Speaking as a foreigner, I can assure you that "oh, this is only for foreigners" is not going over well in europe. I'm pretty sure the EU is going to come down hard on the US over this. Or rather, they will simply mandate that data for EU citizens is not allowed to leave the EU without the express prior consent of those citizens. It's the perfect excuse to give favorable treatment to the EU IT industry without the US having a legitimate complaint in front of the WTO.
You don't like being spied on? I don't blame you. But that doesn't make it unconstitutional. One time, we invaded a whole country, dropped bombs all over populated urban centers, took over for about 5 minutes, dissolved the army, and then stood back and let the whole place turn to hell. That sucked a lot. Also: not unconstitutional.
That's the thing people don't seem to get. Not everything bad or stupid is unconstitutional. People just want it to be unconstitutional because then they would be able to go to a court and have it stopped.
There are some things, if you want them stopped, you have to go to Congress.
No, this is actually a pretty anomalous situation on the face of it. Everyone knows that you can be sitting outside in the evening sun using your laptop in Western Pakistan, and Barack Obama can send a Predator drone over the horizon to kill you without any US constitutional issue if you're not a US citizen. (Aside from maybe the War Powers Clause.) What he can't do is confiscate your 500 shares in AT&T or other US property without any legal proceeding. So it's actually moderately suprising that non-resident aliens' US cloud data apparently doesn't enjoy the same US constitutional protections that their other US interests do.
Yes, I have heard of problems with asset-forfeiture laws in the States. But apparently the amount of legal protection and redress you have against government asset forfeiture is still luxurious compared to what you have as a non-resident alien facing spying on your Google account: in the latter case it's basically none. (There's also the fact that US citizens seem to have (IANAL) as little protection as you, but that's cold enough comfort.)
Given that Pres. Obama would be operating under his military authority as Commander-in-Chief if he did order such a drone strike, then it might very easily still be considered a war crime.
The U.S. Constitution doesn't explicitly talk to homicide but U.S. legal code does, and there's no requirement that your victim be a U.S. citizen. So even with the drone example it's not clear-cut that Pres. Obama has the legal authority to kill any foreigner he wishes.
The Constitution established the Congress and its legal precedent, including the superiority clause restricting International matters to Federal law. If you obey a law under U.S. Code or the Statutes-at-Large, it's because of the power granted to Congress, the President, and the Supreme Court by the Constitution.
Or in other words, things that are illegal are illegal because they're also unconstitutional (assuming it's withstood the scrutiny of the Supreme Court, if it makes it to that level).
Congress and the President derive their authority from the grants of power in the Constitution. If the courts cannot find an argument from the Constitution giving them authority, or if the courts accept an argument from the Constitution forbidding a particular action, then that is unconstitutional.
Put an equivalent way, Congress and the President only have authority if there is both an argument from the Constitution saying that they have authority, and if no argument from the Constitution is accepted by the courts saying that the action they want to engage in is prohibited by the Constitution. (There is a grey area where the President does things forbidden by Congress. That can get interesting, particularly since the Supreme Court tends to try to stay out of it. If you want examples, examine conflicts between Congress and multiple presidents over the War Powers Act.)
"Unconstitutional" usually means "directly prohibited by the Constitution" as opposed to "indirectly prohibited by the constitution." We already have a word for "directly or indirectly prohibited by the Constitution": illegal. The distinction is relevant when we need to know where to look to answer a question, what to modify to effect a certain outcome, or whether a law is permissible.
(In theory you could argue that it was prohibited under the 10th. But the arguments made by the court would apply regardless of the presence of the 10th.)
That's orthogonal. My point is that calling something that is prohibited by law but could, without changing the constitution, not be prohibited by law "unconstitutional" simply because that's where the authority fundamentally lies is not meaningful and is not what most people mean when they say "unconstitutional."
Let's grab a random dictionary. http://dictionary.reference.com/browse/unconstitutional defines it as, not constitutional; unauthorized by or inconsistent with the constitution, as of a country. Note the "unauthorized by" bit, which is what we are discussing.
Also go to the wikipedia links I gave you earlier for the two cases of note, and follow the various references in those links. You'll find "unconstitutional" being repeatedly used in the manner that I describe - and not as you claim it is used.
In short if the courts rule that something is not allowed under the Constitution, people call it unconstitutional. And this applies whether their reasoning is that nothing authorizes the bill, or that the bill violates a specific protection in the Constitution.
You keep talking about something I am not talking about.
"And this applies whether their reasoning is that nothing authorizes the bill, or that the bill violates a specific protection in the Constitution."
But not that it simply happens to be prohibited by a law, where the constitution authorizes the law but doesn't require it. Not every violation of federal law is "unconstitutional", at least as commonly understood.
D'oh, I scrolled back and you're right that I misread what mpayne had said.
Indeed, something that is against a law that is constitutional is illegal, but not unconstitutional. It is only unconstitutional if you'd have to change the Constitution or (more often) the interpretation of the Constitution in order to make it be permitted.
>What he can't do is confiscate your 500 shares in AT&T or other US property without any legal proceeding.
Are you sure that would be unconstitutional rather than "only" a violation of various treaties and an act likely to cause powerful entities to respond politically?
The EU isn't going come down that hard on it because a) they do the exact same thing and b) they quite like outsourcing the costs to the US but getting a lot of the benefits. I'm guessing that at most you'll see a aspirational clause on data privacy buried in the depths of the forthcoming EU-US FTA. http://www.rte.ie/news/business/2013/0614/456567-eu-us-fta/
This seems highly unlikely given that just about every EU country engages in foreign surveillance. What do you think is the primary purpose of agencies such as the GHCQ or BND?
And since there are intelligence-sharing agreements between the countries, countries are spying on their own citizens with deniability by doing it through third parties. If they even care enough to maintain the ruse.
what you say is false, EO12333 expressly forbids this with the following:
"2.12 Indirect Participation.
No element of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order. "
I'd have to read it closer than I have to figure out what it means, but section 2.4 seems relevant:
Agencies within the Intelligence Community shall use the least
intrusive collection techniques feasible within the United States
or directed against United States persons abroad. Agencies are
not authorized to use such techniques as electronic surveillance,
unconsented physical search, mail surveillance, physical surveillance,
or monitoring devices unless they are in accordance with procedures
established by the head of the agency concerned and approved by
the Attorney General. Such procedures shall protect constitutional
and other legal rights and limit use of such information to lawful
governmental purposes. These procedures shall not authorize:
(a) The CIA to engage in electronic surveillance within the
United States except for the purpose of training, testing,
or conducting countermeasures to hostile electronic surveillance;
(b) Unconsented physical searches in the United States by agencies
other than the FBI, except for:
(1) Searches by counterintelligence elements of
the military services directed against military
personnel within the United States or abroad for
intelligence purposes, when authorized by a military
commander empowered to approve physical searches for law
enforcement purposes, based upon a finding of probable
cause to believe that such persons are acting as agents
of foreign powers; and
(2) Searches by CIA of personal property of non-United
States persons lawfully in its possession.
(c) Physical surveillance of a United States person in the United
States by agencies other than the FBI, except for:
(1) Physical surveillance of present or former employees,
present or former intelligence agency contractors or
their present of former employees, or applicants for
any such employment or contracting; and
(2) Physical surveillance of a military person employed
by a nonintelligence element of a military service.
(d) Physical surveillance of a United States person abroad
to collect foreign intelligence, except to obtain significant
information that cannot reasonably be acquired by other means
Nothing in PRISM involves physical surveillance, therefore b, c, and d are trivially satisfied.
Surveillance by foreign intelligence agencies is in no way surveillance by the CIA, so a is satisfied.
There is no noticeable user impact at all, which satisfies "least intrusive".
PRISM is, in accord with the law, established by the head of the agency concerned and approved by the Attorney General.
There are procedures in place to protect constitutional and other rights.
In the legal reality supported by the last several administrations, section 2.4 is completely satisfied by turning over US data wholesale to foreign countries, who are then free to use it to spy on US citizens.
This is a business decision from certain Swiss banks due to the impracticality of the situation.
And maybe this is what will happen to certain US business too, they will lose customers because they can't give privacy guarantee to foreign customers.
FISA = Foreign Intelligence Surveillance Act. The 'right of the people' in the 4th amendment is the right of the American people (ie citizens of the USA).
You only read part of the law, that is, statute. Court precedent is law too, and not looking up cases where the statute in question has been at issue means you have only partially informed yourself. The US has a common law legal system, not a civil one.
Yes. The FAA "Certification" scheme documented in this part of the law is like an SQL stored procedure. If NSA wants, instead of obtaining individualized authorizations from the FISC to surveil individual foreign targets, the DNI and Attorney General can together sign off on a "Certification" documenting the type of surveillance and the measures taken to ensure that such surveillance doesn't target Americans. The FISC reviews that Certification, and the NSA can reuse its structure multiple times by issuing "Directives".
I don't think it matters what the government says about this from here on out. They've shown the depth of their ambitions; they want and will get records about every communication we have. They've been caught in multiple lies, and we can expect that we will never hear the whole truth on this issue. They are doing whatever they want to do, legal or not, and we can't stop them.
We can all now safely assume that if we have unencrypted electronic communications (phones included), the full contents of those communications will be stored somewhere and made available to government agents should we come under suspicion for anything. Plan accordingly.
I think we can stop them if we stand united in defiance. Look what we accomplished with SOPA/PIPA - they were on the verge of passing and we demolished those bills.
Just some efforts off the top of my head:
-Restore the Fourth (reddit.com/r/restorethefourth) is a planned nationwide mass demonstration to protest privacy encroachments
-Mozilla/Reddit/EFF/etc - http://stopwatching.us is going to be sending hundreds of thousands of emails to representatives on citizens' behalf over the next couple weeks. In fact I'm currently contributing dev time to this one, and we really could use some more developers to do everything we want to do. If anybody wants to help "code for freedom" (I just made that up) please email me at pvnick@gmail.com
Don't make the mistake of thinking you're powerless because you're not. We still live in a representative democracy, and most of our leaders do actually care what their constituents think, it just doesn't seem that way sometimes.
The difference is there wasn't a decade of infrastructure built around SOPA/PIPA (technological, social, political, economic, etc) however now there is -- the Obama Administration's staunch resistance and the mainstream-media's support is evidence of this.
Even now the UK Government is seeking to duplicate the NSA's efforts because they see the writing on the wall that things may go south, so even if we act now then it'll effectively be a whack-a-mole game that will last for a long time coming.
We can stop them now in the US but we'll have to expand our efforts globally.
Daniel Ellsberg (the famous pentagon papers whistleblower) recently stated "With Edward Snowden having put his life on the line to get this information out ... I see the unexpected possibility of a way up and out of the abyss." [1]
Now is the time to act. We have the option to succeed, but only if we really want to.
>Look what we accomplished with SOPA/PIPA - they were on the verge of passing and we demolished those bills.
This is a common, yet unlikely sentiment. I would strongly bet the billions of dollars representing anti-SOPA claims (Google, Wikipedia, etc) were way more influential than ordinary middle class citizens.
Not that protesting and the like isn't worth doing. But it is best to be realistic.
What does "cannot" in the quote from Rep. Nadler mean?
“I am pleased that the administration has reiterated that,
as I have always believed, the NSA cannot listen to the
content of Americans’ phone calls without a specific
warrant.”
I hesitate to draw any conclusions from that statement given the administration's secret lingo and willingness to make the "least untruthful" statements they can conveniently make.
Are we to assume that all the concerned agencies and courts have no secret interpretations of the laws to mean otherwise? That they are not technically capable? (I've implemented CALEA in a VoIP network, so I'm quite sure they can.) That there are actual technical barriers implemented within the agencies which prevent its personnel from doing so without specific legal oversight?
Or maybe it's just soothing noise with no specific or verifiable meaning.
I think "cannot" can easily mean that they are not permitted to according to their internal policies and procedures, even if they might have the technical ability to do so.
"Listen to" is something a human being does, requires a warrant. "Record/capture" is something that a computer does, does not require a warrant. This would be consistent with what parties inside and outside the government have been saying. Until now, no government rep has yet said that calls are not being recorded; they are simply saying that they are not being listened to.
The fact is, being able to get a warrant to listen to a recording that you made two years ago of someone, before they were under suspicion, is a very different thing than being able to get a warrant to begin recording and listening to someone. I think the government would assert that the former is equally permitted under the fourth amendment as the latter, although I would bet that most Americans would disagree.
If "listen to" is something that a person does, does that allow that "speech recognition/transcription" is something a machine can do? If I were servailing en masse, I'd prefer to start with some machine learning filters against all that audio. Is it legally a search if a human didn't do it? What if it's meant to establish "foreignness" percentage? I've noted a lot of "no one's listening to your phone calls," and it seems the sort of "least untruthful" denial a clever government might use.
It's a game of morph. "Does not listen" becomes "records but cannot have a person listen" which then becomes "records, listens but cannot take action" which then becomes "records, listens, takes action but cannot tell a judge about it" which becomes "records, listens, does what he wants but prohibets you from taking action"
Let's be clear though: "cannot" for the government has always meant "legally not allowed to" and not "technically not allowed to". The FBI was technically able to wiretap phones even after it was banned, for example, and you've already mentioned CALEA.
It's possible there are technical software restrictions within NSA and not just "analysts are trained to comply with policy". I would like to think those technical backups are in-place, but I don't know if anyone from NSA has confirmed that.
The big question I would think is whether or not the NSA can capture a phone call (without an analyst listening to it) with a warrant or not.
On the one hand that's a phone call which has its own specific wiretap requirements.
On the other NSA has been capturing things elsewhere that they need a warrant to look at, so the logic would be similar. And given that most phone calls are probably routed over a computer network by now the wiretap law may not apply directly in NSA's view.
I said yesterday that it Nadler probably understood "we can capture but not listen to calls" as "we can tap into calls (i.e. eavesdrop)" and so the message the NSA rep delivered is not the one Nadler understood.
But that still leaves open the question of whether phone calls can be recorded in NSA's view, or whether it's just the metadata.
Watch the video, he has one story from the NSA in a classified hearing and the opposite story from the FBI in an unclassified hearing. Nadler is pleased with the report the FBI gave (requesting tapping for an individual from a court).
There's still the case of what the NSA said at the classified hearing.
What he actually is quoted as saying is "...the NSA cannot listen to the content of Americans’ phone calls without a specific warrant."
Listen to, not capture. He says nothing about capturing the data.
There have been indications that they capture massive amounts of data, but they believe it's legal to do so, as long as they don't listen to it until they have a warrant.
Sure. But the revelation from the CNet story was Nadler's apparent belief that no warrant was required for them to listen to calls.
It's also worth knowing that the USG flatly denies that they're using any authority that allows them to acquire information without calling it "collection" until an analyst accesses it. They used to, but officials now say they no longer rely on that authority; if they have the information, says the USG, they have it, full stop.
if they have the information, says the USG, they have it, full stop.
Everybody hopes that that's true, but there is a problem with this story. The Director of National Intelligence told Congress that the NSA hadn't "collected" information that it did, in fact, have. When this came to light he, instead of admitting that he lied to Congress and resigning, announced that he was actually using the newspeak definition of "collect" - you know, the one where it has literally no meaning.
This is the problem with lying to the public and getting caught. There is no way to tell if anything else you say contains any meaning at all, let alone the truth, even if it happens to be the truth. This goes triple if you happen to have sworn on penalty of perjury that said lies were the truth and still get away with it.
Interestingly, the CNET article said exactly that. "If they're targeting anyone within mainland USA, then that triggers the system to require a warrant." But everybody ignored or didn't read that part of the article.
A lot of the discussion is on what happens when the NSA targets a non-American overseas and that person calls or communicates with someone in the US.
If you can listen to a large amount of an overseas target's communications, it's inevitable that some of what you pick up will be communications with Americans. The questions, and confusion, is what happens and what should happen when that occurs.
The problem is that so much of the reporting around this gets things confused that it is hard to understand what everyone is talking about, and a lot of people are walking away with the assumption that analysts in the NSA are regularly listening to US-to-US phone calls or emails for shits and giggles.
Obama says the congresspeople are all briefed up. They say they aren't. So they brief them up. Then they're confused.
The NSA would have been better off not trying to keep the whole program secret, since no one in Washington seems to be able to figure out what's going on even when they're told.
The whole thing has gone from shocking to sad to just plain pathetic.
Is there anyway to view that on mobile without being logged in to Twitter? It briefly shows the tweet, then it looks like it decides that since I'm on iPad I should be on their mobile site and goes to the mobile login page.
The nut of the story, and its entire newsworthy factual content, is that Nadler is pleased to have been informed by the administration that the NSA cannot in fact listen to the contents of phone calls without a specific warrant.
I started a blog a while back because I do not expect this long-running story of freedom and privacy to move in a straight line from point A to point B. As this story shows, there'll be a lot of steps forward, then a couple of steps back. It's something that will require chronicling.
I won't debate the veracity of Congressman's Nadler's comments either a couple of days ago or today. I'll just assume his first comments were correct and unguarded. (They say the definition of a gaffe is when somebody in Washington DC tells the truth)
What interests me is this: who got to him? We'd all like to assume it was some kind of nefarious government source, but my instincts say it was somebody in a leadership position in his own party.
We won't know, though, either which statement was correct, and if the first one was true, how he was "adjusted" by some external force. Bet it's a fascinating story. My money says leadership in both parties are really busy cracking the whip over this behind the scenes.
If you actually look at the CSPAN segment upon which the piece is gased, you can see that there is legitimate confusion between the FBI Director and the Congressman during the exchange.
That could have been a ruse, or the Congressman could have legitimately misunderstood something previously, and thus tried to clear everything up after it blew up. Not everything is a fucking conspiracy.
The story I read said that Nadler received one answer one day, and another answer during the closed-door, classified briefing.
Didn't know they put those things on CSPAN.
And nobody's implying a conspiracy. I specifically said as much. My point was that leadership had a vested interest in keeping the troops marching in line -- much more than with your normal poicy issues. Also that the Nadler thing is a tiny piece of a much larger tapestry. Doesn't matter much one way or the other how this specific story turns out. I was just assuming his first words were accurate for purposes of having a starting point in the discussion.
I agree that the Nadler thing is a small part of this whole news event... but it was pretty much the entirety of the CNET piece. It is no longer fair to say the NSA "admitted" to listening to the contents of phone calls. Maybe they do, maybe they don't, but there's no evidence they admitted it.
However, this link shows Trevor Timm's latest tweet, which is very important, and supports reporting by Julian Sanchez, where he started to notice the misinterpretation. Accuracy matters.
There are a lot of interesting things in there. For instance g.1.B allows wiretapping BEFORE they get the FISA rubber stamp. (But the warrant is still required to be sought. Whether this is done in practice is another question, but the warrant is still needed.)
However to me the single biggest red flag is g.4 which reads, A certification made under this subsection is not required to identify the specific facilities, places, premises, or property at which an acquisition authorized under subsection (a) will be directed or conducted.
Why is this interesting? Well compare with the 4th amendment, with the important bit highlighted by captitalization, 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 person or things to be seized.
How can anyone pretend that this law is constitutional???