Secret Court Takes Another Bite Out of the Fourth Amendment
eff.org
eff.org
In fact it clearly states they can only retain stuff long term if the DOJ notifies them explicitly that they have a continuing litigation/preservation hold necessity (which is usually not the DOJ doing it,but say, a civil lawsuit that carries with it preservation obligations).
It also makes further clear that in all cases, the only people with access to most of any retained data is system administrators, not investigators, and that it can't be used for investigative purposes.
It does say general querying is allowed, but only people explicit 702 access rights are the ones who must be making such queries, or making such decisions. In all cases all records of who accessesd what with what query terms and their access level are explicitly logged, etc.
It also explicitly states that information acquired under section 702 will not be introduced as evidence against a person in a criminal proceeding, without 1. Explicit approval of the attorney general 2. in criminal cases related to national security crimes
In any case, this is not new, this viewpoint is something going back to FISC precedent from 2002.
So it's not like this just happened.
Additionally, the statute is pretty clear here.
It says: " (h) “Minimization procedures”, with respect to electronic surveillance, means—
... (3) notwithstanding paragraphs (1) and (2), procedures that allow for the retention and dissemination of information that is evidence of a crime which has been, is being, or is about to be committed and that is to be retained or disseminated for law enforcement purposes; and"
So again, nothing new here, this has been law for quite a while.
In short, i may hate a lot of things about FISA/FISC/etc, but i think the EFF is stretching to say this is a new problem, or to blame the court for it.
Information aquired under 702 may not be introduced.... Exactly, we call this parallel construction.
Those limits on retention you mention, which don't apply to evidence of a crime which has been, is being, or could possibly be committed (aka "about")... are those the same limits FISA just recently blasted NSA for not following and hiding from the court that they weren't following? [1]
They are not saying this is a new problem. This is a very old problem and also a very big problem. And for finding this constitutional, the only one to blame is the court.
[1] - http://www.politico.com/blogs/under-the-radar/2016/04/govern...
There is no "national security" exception to the 4th amendment. At least in theory, these are communications that wouldn't require a warrant but for FISA, because they involve communications with foreign non-citizens.
But they did that many years ago, yet eff acts as if this is new.
"____Once it has communications in its custody, those limitations no longer apply____ and the government can troll through it for whatever law enforcement purpose it wants without having to worry about getting a pesky warrant." (emphasis mine)
You're not addressing this which I think is the point.
The relevant section from the ruling's conclusion:
"The government shall promptly submit in writing a report concerning each instance after December 4, 2015, in which FBI personnel receive and review Section 702-acquired information that the FBI identifies as concerning a United States person in response to a query that is not designed to find and extract foreign intelligence information. The report should include a detailed description of the information at issue and the manner in which it has been or will be used for analytical, investigative, or evidentiary purposes. It shall also identify the query terms used to elicit the information and provide the FBI's basis for concluding that the query is consistent with the applicable minimization procedures."
In other words, the FBI can query for data related to US persons without a warrant and justify it later with a report to the FISC.
Except, I did: This is, as i pointed out, exactly what the statute allows and has been allowed since 2002!
Again, see In Re: Sealed Case, 310 F.3d 717 (F.I.S.C. 2002) which makes very clear this is the case: "The minimization procedures allow, however, the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes. See 50 U.S.C. § 1801(h) (3). "
This isn't new by a longshot, and it's been okay'd by other courts other than this one, because that's what the statute says.
In fact, In Re Sealed case came about, because the FISA court tried to stop what the EFF is complaining about, and the government appealed. That is, their decision was "you can't use this for ordinary crimes". The government appealed, the reviewing court said fisa must allow them to use it for what they want, as per the statute.
So yeah, blaming the FISA court is silly, since they tried to stop this once already.
And calling this new or news is 14 years too late.
None of your previous references make clear what the reference you just added now does which is that the minimization procedures allow for retention and dissemination of __non-foreign intelligence__ information which is evidence of __ordinary crimes__.
I can see in your previous comment where that might have been what you meant but leaving out the keywords I emphasized is cause for confusion.
In any case, arguing over whether or not the content of this statute is "news" is just a distraction.
The EFF is challenging this statute and its application as unconstitutional under the Fourth Amendment. Despite the amicus agreeing at least in part, the court decided to uphold the statute and to continue allowing warrantless querying for ordinary crimes.
News or not, this is cause for concern and I applaud the EFF in its efforts to do something about it.
The EFF has done literally nothing here except the press release and blaming a court that already took the EFF's position once and got beat down for it. I don't applaud them when they know this, and write a press release blaming the court, instead of complaining how hamstrung they are by precedent.
This is not effective advocacy in and way, shape, or form.
It does make clear what you tried to say. Leaving out keywords makes it hard to have a productive conversation.
> This is not effective advocacy in and way, shape, or form.
Thanks to the EFF, among others, we have access to secret rulings by secret courts, something that shouldn't even exist in this country.
When the court upholds legal precedent and current statutes to allow warrantless querying of indiscriminately collected data by the FBI for ordinary crimes, many concerned citizens and casual observers would like to know about it. Again, more thanks to the EFF.
While it seems to be your focus here and elsewhere on this thread, I'm not interested in debating whether these rulings amount to "news" or "PR" opportunities for the EFF. If you do have alternative sources for info on FISC, its rulings and other legal apparatus involved in trampling Fourth Amendment rights, I'd be glad to check them out.
Let's be 100% super clear here. This is not thanks to the EFF in any way, shape, or form. To claim otherwise is to simply deny history.
"While it seems to be your focus here and elsewhere on this thread, I'm not interested in debating whether these rulings amount to "news" or "PR" opportunities for the EFF."
Earlier, and here, you seem super-interested in fawning over the EFF at every possible opportunity. So i guess i'll just say that i'm not interested in watching you white knight for an organization that loves to pat itself on the back for other people's accomplishments.
The EFF does good for sure, but like most advocacy based organizations they have to make themselves appear effective to get funding, and they often do that by making themselves look like they are more seriously involved in good outcomes than they really are.
http://law.justia.com/cases/federal/appellate-courts/F3/310/...
" The "wall" emerges from the court's implicit interpretation of FISA. The court apparently believes it can approve applications for electronic surveillance only if the government's objective is not primarily directed toward criminal prosecution of the foreign agents for their foreign intelligence activity. " ...
The minimization procedures allow, however, the retention and dissemination of non-foreign intelligence information which is evidence of ordinary crimes for preventative or prosecutorial purposes. See 50 U.S.C. § 1801(h) (3). Therefore, if through interceptions or searches, evidence of "a serious crime totally unrelated to intelligence matters" is incidentally acquired, the evidence is "not ... required to be destroyed." H. REP. at 62 (emphasis added)."
(note the house report cite: This is in fact, what congress intended) Again, this came about because the FISA court tried to put a stop to these shenanigans back in 2002 and then the reviewing court reversed them. So now they let it go, as they are required to.
Their previous defense was that "collect" meant to actually inspect the information.
But comparing this to censorship and related problems in China and Russia (single-party states with control of speech at the policy level) is just silly, for lack of a better word.
In China it is very clear what is happening. In e.g. US it is all considered a secret. Everyone in China is aware of the "Great Big Firewall" and all the various laws restricting what you can and can not say.
Someone linked once to an article explaining that knowing of the existence of a monitoring system results in people changing their behaviors. This even though some of them support the system.
Seems easily comparable to me.
Since you bring up "Communist countries," my grandfather lived in Communist Romania. He was beaten to death in jail over the course of two months on charges of possessing foreign currency [0]. My parents grew up with almost no food to eat, most of the time being tracked by the secret police, everywhere, black car following them home, informants at every corner, in every place they visited. A modern "Communist country" is North Korea. You can do some research on your own regarding that.
Yes, modern Russia and China aren't that bad. But comparing their single-party system (in which the party literally controls everything, and on many occasions silences dissent by "disappearing" people (read: killing them) ) with the United States, is in fact, just plain silly. Whoever pointed out that this is a bad way to argue is wrong. It is simply silly. Having the choice in two parties, where mostly anyone can, in theory, run, this is infinitely more free than a single-party state. People can make themselves known, they can speak what they want (look at Bernie), they can come out of nowhere without being carefully monitored and selected by a single party. Having the choice encourages politicians to at least somewhat work with the people's interest at heart, rather than just the interest of the party.
Your Coca Cola and Pepsi comparison is very myopic. If you cannot tell the difference between the two parties, especially at a time like this, you have no place discussing politics in any forum. Quick summary: one party is a center-right party trying increase funding to social services, the other is a far-right conservative party focused on the religious majority and traditional conservative values. There are many more things to them; the differences are tremendous. Read their Wikipedia pages, and those of their candidates.
Stop with these comparisons, guys. I know the state of affairs isn't great here, I know our media isn't focusing on the right things and we have huge problems with the NSA and privacy matters.
But be grateful for what we have, and appreciate that you live in a country where you will not be killed by the government for speaking too loud.
Stop drinking the soda. Those are the most colorful agendas which often result in 1 or 2 grand policy gestures to point at. In practice, the majority of the time is spent bolstering the businesses of donors. To whit, this is EXACTLY what communist countries produce, once they get the populace under control after a few purges.
I'm not so sure, I remember when Poland was under Russian control (before 1989). At least when you were making a phone call they had courtesy to say that your call is monitored.
Today the technology advanced so much that not only someone can listen your conversation, but also all of your conversation could be recorded and stored for years. Even if you don't care about that. Such information could be used to blackmail people in public offices allowing to control legislative and judicial branches. This itself endangers democracy.
I want reporting, not advocacy. The better of the mainstream press outlets are balanced to a fault but get the interesting details wrong or leave them out altogether. The fringe outlets target their core audience with lots of spun details and a lack of opposing viewpoint.
EDIT: If anyone can get past "lefty vs righty" and answer my core question I'd really appreciate it. This is a genuine query for information, not a clever way to troll.
The key for me about the EFF is they are usually good at providing sources. I am going to take the time to read the linked Memorandum and Order document and form my own opinion:
> https://www.dni.gov/files/documents/20151106-702Mem_Opinion_...
Although, I do tend to agree with the EFF on a fair amount of issues (not always though).
I think this is evidence of a nascent tech community. We are fractured in our approach to some things (e.g. RMS vs others) and this shows in the varied responses by EFF.
I definitely don't agree with everything they have to say about tech and policy but I am glad they exist. They keep pretty good tabs on government and private company policy. Sometimes it feels weird when they criticize some private company for a policy which I feel is not a big deal, but I just register my disagreement and note they're not me ;-)
On the other hand, even when disagreeing with others' conclusions, sometimes I like a bit of advocacy along with reporting, as it helps remind me people care.
Although to be fair, eff articles do get called out a lot on Hacker News as well - the userbase is diverse, any anything of interest will be argued from both sides, sometimes in good faith, sometimes not. But I think that's why biased articles are more likely to be posted than unbiased ones - the bias is what makes it seems interesting.
I realize there's a great many HNers who love to brandish their libertarian badges at every opportunity, but it makes for a really annoying echo chamber, and it creates unnecessary partisan division on issues we could otherwise rationally discuss.
Lowercase-L libertarian means that you care about liberty. I could have said "classical liberal," which would encompass modern libertarians and the Founders alike.
> echo chamber
I'm not getting a strong libertarian vibe from HN on anything except encryption/privacy, which is really ironic.
As I understand it, PRISM is not a thing that lets the NSA willy nilly search the internal networks of companies they've onboard,
It is instead a thing for companies who would be the target of large volumes of these requests just because of their size to upload the data they're legally required to because of NSL or similar, in a rapid fashion.
Is this assessment correct?
This as opposed to the government finding probable cause, getting a warrant, and asking the company for the data (if they have it). Instead, the onus is placed on the company to comply with the guidelines set forth without first being asked.
It is unclear to me whether or not companies had to start collecting/reporting data they were otherwise discarding before, but this quote sounds like they are/were:
> "The NSA can use these PRISM requests to target communications that were encrypted when they traveled across the internet backbone, to focus on stored data that telecommunication filtering systems discarded earlier,[8][9] and to get data that is easier to handle, among other things.[10]"
[1] https://en.wikipedia.org/wiki/PRISM_(surveillance_program)
This is not going to be a popular opinion, but I think a compromise is necessary. There is no way to stand up to the train of data collection. For one, the public being afraid of this and that will demand to be protected at all costs, no matter how small the threat. The more scandalous the news cycle gets, the more panic we will see. And then the technology improves so fast, soon enough publicly installed video cameras will track everyone, and all within the constitutional framework.
A middle ground would be to create the fourth branch of the government that is tasked with data collection, but will only give it up on court order. Orders may be for individual incidents based on reasonable cause, or for data-mining, based on a judgement of proper scope.
I disagree. I think government data collection on citizens should not be allowed, period. I know many people external to tech who agree with me.
The issue occurs when government officials talk about terror attacks. If they were honest, and told anyone it never prevented a terror attack, more would be inclined to not be tracked.
Coupled with this, is the fact I don't trust the government databases not to get hacked, and neither does anyone else.
'Nothing to hide' privacy naysayers imagine innocence a perfect defense.
In practice a prosecution presents select facts in the order best suited to convict.
Under mass surveillance they have all the facts; the defense only has what one still possesses/ remembers.
With such resources, enough well cast aspersions could convict anyone of something.
Counter intuitively innocence can be harder to defend as the guilty will have prepared alabis. (part2 @)
Lawyers advise their clients not to talk freely to police for very good reason.@
But don't forget SCOTUS Scalia saying that basically if you are later on found not guilty, but the trail on its own was done properly with no misconduct, you will still get the death penalty!
http://www.businessinsider.com/antonin-scalia-says-executing...
What a country! :)
I'm counting on you lot at HN and beyond to create the technology allowing widespread encryption that makes such surveillance moot.