> Or, more precisely, we don’t know if they obey laws.
Do you know that any agency in the U.S. obeys laws? Do you verify this everyday, across the entirety of the USG?
That was always the striking thing to me about these leaks as compared to the NSA investigated by the Church Committee, is that in this case you see an NSA actually trying to comply with the law. This is why MUSCULAR is only overseas, or why only phone metadata was being collected, and only after legal approval by FISC and the FAA by Congress in 2011, and why all their slides talk about "USPERs" and non-USPERs.
If you want change in what NSA is permitted to do then the law is a great place to start. If nothing else it would make it clear to the rank-and-file NSA employee (the same ones Snowden went to bat for on his NBC interview) that there are new, clear boundaries instead of reliance on court orders and Supreme Court precedents.
We have a wonderful system of checks and balances. It does, however still require competent people to run them. It so happens that in the legislative brace we have an intelligence oversight committee. It is chaired by none less than Senator Dianne Feinstein from the great state of California.
Unfortunately she has acted more like the biggest cheerleader and defender of the NSA rather than a "check" or "balance." Now the good people of California will have a chance to vote (or not) for her reelection should to 80 year old choose to run again in 2019. In the mean time they can write to her to let her know of their dissatisfaction (I've done so - got a reply as well).
Of course one could choose instead to just complain on internet chat boards and ignore the political process and then continue to wonder why our politicians are not reflecting the will of the people. And why we don't have good oversight. Next time you vote (you do vote, right?) please spend at least as much time reviewing a non-partisan voter guide like that produced by the Secretary of State as you do on the latest episode of "Silicon Valley".
Remember - in a democracy the government is only as good as the people we elect. And reelect. And reelect. <sigh>
NSA trying to comply with laws? What? No. Trying to comply with US laws maybe. The rest of us out here that make up the majority of the world have the NSA breaking our laws with impunity. We don't get a say or a vote, we just get to hear the anguished cries of Americans worried that US laws may have been broken.
> The rest of us out here that make up the majority of the world have the NSA breaking our laws with impunity.
When the rest of the world starts upholding things like First and Second Amendment principles even for their own citizens, I will worry more about the U.S. reciprocating by extending Fourth Amendment principles to those who seek to harm the people of the U.S.
But that is still a long ways off it seems. Are women in takfiri-controlled areas able to freely protest or even attend schools yet?
The ironic thing is that you say you don't even "get a say", but you do. Our President has had to focus attention on foreign intelligence programs to try and appease non-American audiences, precisely because of the fact that non-Americans "get a say", which is something that the Chinese and Russian leadership will never have to worry about. Do you protest SORM to Putin? If you've ever (directly or indirectly) used a .ru site, or a site hosted in Russia, you should.
> I will worry more about the U.S. reciprocating by extending Fourth Amendment principles to those who seek to harm the people of the U.S.
Fourth Amendment (and Fifth Amendment) protections protect the US from a government pretending to be protecting them from "people who seek to harm the people of the US" without actually doing so.
While the direct targets are the most obvious victims of denials of due process protections, the more significant victim is the public at large -- due process protections increase the cost of security theater so as to limit the extent to which it is easier for the government to cut corners and engage in show punishments of scapegoats for propaganda purposes rather than do the hard work of finding the real guilty parties.
And for real, organized, enemies against which legal process is inadequate, well, that's what declarations of war against specific enemies. But permanent, open-ended, unconstrained war -- and arbitrary executive use of war-appropriate processes -- against whomever the current executive thinks might be a threat is another thing altogether.
You are ignoring a few decades of history in which successful court challenges have curtailed some NSA excesses. It's easy to forget that, while the capabilities of the NSA have increased in the past decade, intelligence agencies today have more attention directed at them than in the past, and thus are more sensitive to any public perception that they are acting in an illegal manner.
>You are ignoring a few decades of history in which successful court challenges have curtailed some NSA excesses
Can you list these "successful court challenges" that have taken place in open court in the last generation? Say, 30 years?
You're not talking about the Sixth Circuit decision in 2007 tossing out the attempt to challenge NSA warrantless surveillance, I take it? :)
Edit: Or the 9th Circuit affirming the dismissal of another case in June 2013. Or the Supreme Court in February 2013 holding plaintiffs did not have standing to sue the NSA. Or EFF's Jewel case, which is ongoing six years later without resolution. Or the Supreme Court in November 2013 rejecting EPIC's mandamus petition in NSA lawsuit. Etc.
They're probably referring to the findings presented by the Church Committee. What was interesting was that they were talking about how intelligence agencies had the resources to impose "total tyranny"... back in 1975.
I'm not sure what actual effects did it have concerning intelligence reform, though. Evidently nothing major.
Yep, but (a) that was 40 years ago, not within the last 30. and (b) that was Congress, not the courts, and (c) as you say, the effects were not as lasting as many observers thought.
That Lawfare post is talking about the same case I mentioned, Clapper. It was posted in 2012, half a year before the Supreme Court held in February 2013 that plaintiffs did not have standing to sue the NSA.
If anything, that Lawfare post punctuates how the courts have been ineffective in curtailing NSA even before the Clapper decision, and how Congress has expanded surveillance. Excerpts:
"in its first-ever decision in In re Sealed Case, the FISA Court of Review held that such legislation [Patriot Act] did not itself violate the Fourth Amendment..."
"Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..."
Nice try, though. Still waiting for that list of successful court challenges that reined in the NSA. :)
Agree to disagree I suppose. The article shows that multiple Courts of Appeals have examined the issue, and not given carte blanche to the executive to search and seize Americans abroad without review and potential exclusion of the evidence derived.
On the legislative side, Congress expanded those authorities because Justice successfully argued that the then current authorities (not including the programs unilaterally authorized by President Bush which were widely seen as illegal), were not sufficient to counter the threat. That suggests that the Courts (or perhaps executive branch overseers like Attorney General, see the Ashcroft-Comey-Gonzalez hospital incident) were offering substantial opposition to the orders being given to NSA. I expected that article to include a certain case, In Re Terrorist Bombings of U.S. Embassies in East Africa, which which is a very interesting opinion about the 4th amendment in a foreign territory context, and and intelligence vs law enforcement context. You might find it interesting.
Note that I'm not suggesting that these authorities are necessary or sufficient to counter any given 'threat', just that Courts have examined the executive's actions, even in the context of gathering foreign intelligence overseas, and crafted rules and doctrines to check its impact on the 4th amendment.
A couple of other background law review articles(pdf warning):
> "Congress in the FAA (building on the Protect America Act of 2007) specifically authorized programmatic warrantless foreign intelligence surveillance in a manner almost guaranteed to sweep up a substantial volume of communications involving U.S. persons..."
If we take it as true that governments in general in the U.S. are not so much as allowed to incidentally pick up communications then it seems like things such as municipal-run ISPs would have to be illegal by definition.
Additionally, it's not the job of FISA (or its Review Court) to overturn Supreme Court precedent, and such precedent has long held that foreign-targeted communications can be intercepted unilaterally under conditions laid out by law (even if such comms are part of a larger conversation also involving U.S. persons).
We can argue that this kind of result makes no sense in light of the Internet, and that therefore the FISA Court construct is inadequate in that regard (since you can't exactly easily appeal this stuff to the Supreme Court since it won't work its way through the normal court systems). But that doesn't mean the FISA Court of Review decision was incorrect either, or that Congress doesn't have the Constitutional ability to pass stuff such as PAA 2007.
The courts and law need to catch up to the Internet, sure, but at the same time that's a very tough nut to crack in general since anything regulating any part of the Internet is going to touch many different competing interests all at once.
It is unthinkably strange that this "call to action" does not include a link to the full text of the ammendment. Why do the organizers think that it would not be useful for people to read the ammendment that they are urging support of? Is it too complex for my feeble mind to comprehend? Or am I assumed to be so sheeplike that I will blindly support something merely because the page casts the ammendment as "anti-NSA"?
That's a good call, we'll add a link to the amendment now. The amendment was only made public this morning so we didn't have it when we were making the site last night. The whole site was made in about 16 hours, so apologies it's not more fully-baked.
Edit: Link added.
Edit: Just re-reading your comment. We definitely don't think you're sheep-like or feeble-minded. In fact, quite the opposite. It was simply an accidental omission.
I appreciate your candor and response and I apologize if it seems like I am picking on you. The truth is that this omission seems to be the norm, so these comments should not be read as directed at you but at online activists in general.[^1]
In my opinion there seems to be a problem of priorities and perspective. The goal is not "making a site" instead it should be "creating an awareness /advocacy campaign." When viewed from this perspective collecting materials for citizen education is the first step, or "1. Register domain, 2. Collect materials for education" and at the very least "X. Collect materials, X+1. Launch site."
You aren't seriously suggesting that all secret funding be cancelled, or made public? What about the huge number of legitimately secret projects that must be funded covertly to prevent adversaries discovering and exploiting defence and national security capabilities.
I think this debate has caused a lot of people to wrongly equate 'secret' with 'evil' or 'immoral' and 'unethical, which is not the case. Look at the specifics, don't make unjustified sweeping generalisations...
What about the huge number of legitimately secret projects that must be funded covertly to prevent adversaries discovering and exploiting defence and national security capabilities.
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If you're capable of mounting a strategically significant attack, then you're capable of guessing the defence. A reasonable adversary will take steps to guard against that defence regardless of whether they know it exists or not.
The kind that are completely incompatible with an open, democratic society, obviously.
The fundamental problem is that any secrecy sufficient to hide weakness from an adversary can also hide corruption from the beneficiary. We literally cannot tell the difference between the cost of running a legitimate defense operation and the cost of all the director's cronies buying beach cocktails all morning, country club fees all afternoon, and hookers and blow all night.
If you look hard enough at just the publicly reported budget items, you can see worse! Corruption does not become less prevalent under a thicker layer of obfuscation!
And, obviously, if you write down on your budget that you need tax money to intentionally give Southern black men syphilis and then leave it untreated just so that you can see what happens to them, some people might have a problem with that. But then again, you might ask for tax money to kidnap and imprison people with Japanese ancestry until the war with Japan ends, and people would be too busy to notice it.
If giving money and power to government is like giving whiskey and car keys to teenaged boys, adding secrecy is like putting a teenaged girl in the mix. Any rational parent would, quite sensibly, attempt to ensure that the boy only had access to, at most, one of those three things at any given time, because any two in combination inevitably results in utter disaster.
I just called Cathy McMorris-Rodgers, my rep from eastern WA. The woman who answered was quite pleasant, but didn't know anything about this amendment. She said that I was the first person to call about it, and that they needed more people like me who "pay attention". Since my rep is a far-right Republican, I'm hoping that she has enough libertarian in her to vote the right way.
I don't trust that passing new laws will do anything when existing law is being broken. Show me people being thrown in jail and I will believe they are serious.
This doesn't make it worthless. Making things more illegal increases the costs and the risks it makes the tools more fragile and decreases cooperation of the private sector.
It doesn't replace other approaches— changing the design of the services we use to make this kind of surveillance closer to a mathematical impossibility— but its still worthwhile.
Quite right. When was the last time a government official was imprisoned and lost his or her pension for engaging in unconstitutional surveillance?
Sure, a rank-and-file cop stalking an ex-girlfriend by looking up her whereabouts in a law enforcement database may occasionally get disciplined. I'm talking about people with "director" or "section chief" or "attorney general" somewhere in their title.
> but the website references FISA 702, but doesn't understand it:
One of the very first Snowden leaks was a complete misunderstanding of the leaked program (PRISM), so why should it be shocking that FISA 702 is misunderstood here?
This is great and I hope that people do call their representatives, but I wonder if it would be more effective if the pro-privacy and civil rights demographic would organize on a more permanent basis to call representatives rather than on an issue-by-issue basis. To some extent, this describes the EFF and the ACLU, but I'm thinking more of ordinary people who understand that these kinds of reforms need to happen, but aren't interested in being a member of such an organization.
Each time a new bill starts making its way through Congressional committees someone spins up a new issue-specific website, which is good, but it seems like there must be a lot of overhead in organizing on an issue-specific basis and that a lot of work (collecting emails, convincing people that this issue is worth their time to call, etc) is duplicated. Maybe individual grassroots political advocacy could even be incentivized in a "gamification" kind of way if it had a more permanent organizational structure with account or email records that persisted across issues? I don't really have anything concrete though; mostly I'm just thinking out loud.
> if it would be more effective if the pro-privacy and civil rights demographic would organize on a more permanent basis to call representatives rather than on an issue-by-issue basis.
EFF, and to a lesser extent the ACLU, has been doing this for over 20 years.
>more of ordinary people who understand that these kinds of reforms need to happen, but aren't interested in being a member of such an organization.
You don't need to be a member of EFF to sign up for their alerts.
Presumably, the people who will regularly call their representatives about privacy and civil rights issues are already members of the ACLU and/or EFF and can get updates through them. I'm not sure what group of people wouldn't want to be a part of either organization but would prefer to be a part of another organization that would send them updates on these sort of issues.
The point of websites like these is to draw in other people who either don't know about the issues or wouldn't normally put in the work to keep up with news and regularly call their representatives.
I think a little bit of bragging is good, it can create a bit of social pressure for others to act. More people should publicly share what they've done
So, your awesome, if I was a US citizen I would be calling right now.
Instead of laws and wishful thinking why don't people take action toward an alternative technology: http://mailmarkup.org/value.xhtml
You can tell the people who really care about this subject from those who just need something to whine about by looking at the contributions they make.
If you're a permanent resident (a "green card" holder) you can do something more effective than merely filling out a web form or phoning a congresscritter's aides. You can donate money to help the pro-privacy politicos (very few) or aid challengers to the anti-privacy politicos (many, but unlikely to succeed).
http://www.fec.gov/pages/brochures/foreign.shtml
"An immigrant may make a [political] contribution if he or she has a 'green card' indicating his or her lawful admittance for permanent residence in the United States."
The real way to do it, which I've written about occasionally for the last decade, is to identify the worst surveillance offenders of each major party. Narrow down the list to ones who are electorally vulnerable (this excludes Feinstein, for instance). You'll need to spend millions of dollars on ads reminding voters how thoroughly the incumbent disrespects the Constitution. Also encourage contributions to the incumbent's challenger. Only do this where you're likely to win. Committee chairmen would be ideal. Be thoroughly non-partisan and focused only on surveillance.
Once you do that, and have a Cantor-like upset against the pro-surveillance, anti-privacy incumbent, suddenly privacy will be taken far more seriously on Capitol Hill. Politicians will respond better to this than a useless $1,000 PAC contribution.
One of the first things my representative's office does is ask for my postal code and name. Pretty sure they do check and even cross verify incoming phone numbers. My representative's office once even answered the phone and greeted me by name before I started talking :).
And even if you are not a U.S. citizen you can still contribute to super-PACs. Since the political system in the U.S. is rapidly devolving to one-dollar-one-vote you can acquire significant influence by writing checks. And they don't even have to be particularly big checks.
Or, when we think a law limits their behavior, it will be challenged, where ‘challenged’ means ignored until it is discovered, then tried in secret.
Functionally, laws don’t matter here. Their existence, and their content, are not predictive of the NSA’s behavior.