New Super Secret Surveillance Court Covering Old Super Secret Surveillance Court | Hacker News Reader

New Super Secret Surveillance Court Covering Old Super Secret Surveillance Court

techdirt.com

146 pointsrntn58 comments

The fact that Eric Holder is a judge on this new court - while also working at Covington & Burling [1], a law firm actively involved in helping large companies defend these very same transatlantic data flows [2] - tells you all you need to know about the new court. Ditto his fellow judge, Rajesh De, who used to be the NSA's top judge.

[1] https://www.cov.com/en/professionals/h/eric-holder

[2] https://www.cov.com/en/news-and-insights/news/2019/07/coving...

Secret courts shouldn't even be a concept in a 'democracy'.

Nor should it be in our republic. There is no national security override to our rights in the Constitution.

SCOTUS has already decided that these courts and the things they "permit" do not violate your rights.

So there's that.

Just FYI, the selector of the FISA Court Justices is the Chief Justice of SCOTUS. The SCOTUS Chief Justice is selected by the President [with Senate confirmation].

And the President is elected by the people…

by a weighted selection of the people who have very little say in which candidates are put forward.

Or was there an implied /s there?

Actually, for the last couple of decades, the primary process in both parties has become very open. There isn't even a requirement to be some sort of formal member of a political party, you only have to be registered (and in some states not even that).

There's a widespread conception that candidates are picked via meetings in smoke filled back rooms - that used to be true, but it isn't true (certainly not in the same way) anymore. Read up on the stories of various "insurgent" candidates in both parties over the last 20 years - the common element is organizing and campaigning so that primary voters actually check the box for you.

Didn't the democratic party just outright state that they could choose who they wanted without any input from the people and had no obligation to run a fair primary election? They went to court to defend their right to keep choosing candidates picked via meetings in smoke filled back rooms

I mean, they also gave us the Dred Scott ruling too. The courts sometimes make the exact wrong ruling.

We need to bring back constitutional amendments, cmon people we can do this

A valuable reminder that all three branches of government are worthless, not just the executive and the congressional.

Sounds like an unconstitutional ruling to me.

Eric Holder? Like, "Operation Fast and Furious" Eric Holder, who got a bunch of American citizens killed by guns he explicitly oversaw making sure they got into the hands of the Mexican cartels and got held in contempt of Congress over it?

Clearly, someone well-versed in government accountability. Really, that's all you need to know.

It irritates to no end when US presidents are not only falsely attributed to government actions but falsely portrayed, even thinly, as masterminding those related plans. Over the course of news cycles it paints the picture of a superman not unlike the absurd hyperbole in descriptions of North Korea’s Dear Leader. In the US, I am not sure whether it can be attributed to laziness or to the calculus of the news establishment, but regardless it is poor journalism.

It's an election year. Party constituents eat polarizing rhetoric and outlandish takes like it's a breakfast bar. Journalists are happy to stock that bar.

fwiw, it wasn't Biden that created the court it was Merrick Garland: https://www.justice.gov/opcl/redress-data-protection-review-...

Also, not exactly a secret given that it had a PR release and the judges are known. Maybe the secret part is getting in front of them.

The court's functioning is absolutely still a secret to its plaintiffs [EU residents]; its location is a secret, the DOJ refuses to say if it has taken a case yet, or when it will. [That implies it has not published any rulings, or maybe it will never publish rulings]. Its decisions will also be kept a secret, from both the EU residents petitioning the court and the federal agencies tasked with following the law. Plaintiffs [EU-residents] are not allowed to appear in person [not even remotely by Zoom, it sounds like?] and are represented by a special advocate, appointed by the U.S. Attorney General.

I can't see US citizens being told to just trust a secret European court whose deliberations aren't known, yet affects their lives, visas, travels, finances etc.

"Maybe the secret part is getting in front of them." No, they already stated that the EU plaintiffs don't have the right to appear before the court. So they don't get in front of them.

On the "Animal House" taxonomy of double-secret, it's up there.

I think your points are fair and I largely agree with you, but I'd probably use the word "opaque" rather than secretive. Sometimes opaque systems do serve a purpose, other times they're an excuse to undermine rights and liberties. This court deals entirely in classified information (from its mandate) and only produces classified rulings. I linked both of the sources (.gov websites) in another comment. Whether or not that's good enough to remain opaque I don't know. I do know that I'm not a fan of any surveillance state and I'm not confident in the ability of intergovernment watchdogs to spot violations, even gross ones.

Governments shouldn't be able to prosecute people with secret evidence and secret processes in secret locations. You can keep your classified materials secret or you can prosecute someone, but you shouldn't be able to do both. Anything else is categorically incompatible with the liberal democratic principles of accountable government.

As it's said, "Put up, or shut up."

This "court" doesn't prosecute anyone. It's an internal review board for the intelligence agencies. Its function is (purportedly) to prevent the intelligence agencies from abusing their power.

Great, so it’s a police department Internal Affairs office on a whole lot of steroids. I’m sure it’s on the up and up

I don't think absolute statements like this are useful.

There clearly are cases where it is appropriate to prosecute someone with classified evidence. Spying cases are a good example.

The problem is that these exemptions are used too often.

Transparent democratic government is non negotiable, but even from a consequentialist viewpoin it's not clear at all. We had a leaky sieve to documents of all SCI types for president for four full years and the nation hasn't collapsed. Clearly the downsides of unaccountable government are worse.

The thought of US citizens being even for a second treated like how the US government treats non-US-residents is absolutely hilarious. What an utter rude shock.

> fwiw, it wasn't Biden that created the court it was Merrick Garland

But Merrick Garland is a Biden appointee. Don't you think leaders should be held accountable for the actions of their administration?

Of course, as vjulian points out, they aren't masterminding everything that their subordinates do, but they do choose who to appoint and have the power to reverse anything they disapprove of once they learn about it.

> Don't you think leaders should be held accountable for the actions of their administration?

Color me cynical, but people only mutter this when it's someone on the other team. So, in general do I think we should follow that principle? Yes. Do I think people widely believe that enough to hold their own self-interest-adjacent parties accountable? Certainly not.

If you want to be very picky, the rule Mr Garland invented was in response to a Biden executive order [1] [2]. The executive order is long, but section 3 is pretty succinct and clear. If Mr Garland implemented an opaque system then I can predict one of two scenarios occurred, maybe both:

1. All of the information the court receives is classified and should never have been leaked in the first place, so no one should know. That means the way someone does know is because of the watchdogs inside the intelligence community.

2. Mr Garland is openly defying the President through process and appeasing someone (maybe the intelligence community).

1: https://www.federalregister.gov/documents/2022/10/14/2022-22...

2: https://www.state.gov/executive-order-14086-policy-and-proce...

Thanks for the link to the executive order. Now that I've read it, I'd say that an opaque system seems to be exactly what Biden wanted.

The EO repeatedly says that results and procedures will be "classified" and "consistent with the protection of intelligence sources or methods".

And the complainant not being able to represent themselves is mandated by the EO: "a special advocate will be selected by the Data Protection Review Court to advocate regarding the complainant's interest in the matter".

Your comment only serves to further illustrate the mystic of the US Office of Dear Leader. To what degree, if at all, did Biden drive the profiling, search, evaluation and selection processes? I feel fairly confident in guessing that you don’t know. Unelected long-tenure “officials” run the US government to a degree that you’re perhaps not appreciating. Journalists not reporting on them or their actions, and instead maintaining a ruse is shoddy and shady.

Your comment is related to the Politico articled cited, not the actual techdirt article, right? (the techdirt article has 0 named mentions of Biden or Obama, and only one of 'former Trump campaign adviser Carter Page').

Yeah, Politico's use of "Biden's court... Biden's proposal" is annoyingly lazy DC shorthand for "the Biden-era DOJ/DHS/FTC/etc."

Correct. I saw that someone had linked the original article and therefore skipped directly there.

How is this a false attribution? The court was authorized by an executive order from Joe Biden.

That’s a largely meaningless statement if your aim is to understand who is driving what, and why.

No, it's an extremely meaningful statement if your aim is to understand who is driving what. Without Biden's signature, there is no court.

That doesn't mean Biden had anything to do with creating the order besides issuing and signing it. But it's accurate to say Biden created the court. Nobody forced him to sign.

I believe you are confusing formalities with realities.

In this case I do not understand your point.

President Biden created this court via his executive order privilege in October 2022¹.

"" By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows: ""

Did he write it all. Did he come up with it all. Probably not.

If the criteria is that you cannot hold a politician responsible unless he or she has written the laws or orders themselves that they vote on, then no single politician in at least a western democracy can be held responsible for anything.

It is their responsibility, as democratically elected representatives, to take responsibility for how they vote, what the sign and whatever orders they are issuing.

¹ https://www.presidency.ucsb.edu/documents/executive-order-14...

No. You’re ignoring the root cause, drivers, and the realities of government. Arbitrarily applying a “buck stops here” mentality not only stymies the generation of useful analysis but helps to maintain the opaqueness of that which you’re investigating.

Are you advocating that the "deep state" is running every country and that the politicians have no importance and influence and will do whatever the "dark cabal" tells them?

Does this extend out to CEOs as well? Clearly, they must be in a much similar situation?

I sense that your response is in bad faith, intended to win perceived debate rather than further discussion. Assuming it is not in bad faith, then I agree at least that a business-organization example might be apt. To that end, would I be pleased by a management consultancy that fails to identify root causes and drivers and hands me a superficial org chart as their finding? [Edited for clarity and typos]

Yeah same, after the Colorado state level judges took Trump off the ballot, people I considered intelligent were saying “Biden this is an ironic way to convince people the election wasn’t stolen”

like, do they not realize these are completely separate governments? is this the general understanding amongst Americans

do they really believe there is a perpetual unfalsifiable plot where the President is not only undermining the judiciary, but the judiciary of a separate sovereign institution, 1 out of 50 that nobody thinks about, and based on political leaning

and even if its just hyberbole? why? why not criticize the judges themselves, the rationale of that state’s due process, why not attribute such collusion to the governor

its all so dumb, people are dumb

I think it should be a basic human right that any citizen of a country should be permitted to have a complete list of courts, their locations, their judges, and their claims to authority.

So the president gets to appoint eight judges, handpicked, to decide what is and isn’t an invasion of privacy? Couldn’t he choose judges that would let him spy on his political enemies without blowback?

I’m genuinely asking. The Politico article is really fuzzy about the appointments. I’m wondering if they even know the process themselves.

Quis custodiet ipsos custodes? [1]

Who watches the watchmen?

[1] https://en.wikipedia.org/wiki/Quis_custodiet_ipsos_custodes%...

This sounds like an executive tribunal. What is the appeals process, and which real federal court does it end up in?

I imagine that since this is an executive-branch "court," the theoretical recourse would be something like the Administrative Procedure Act's general provision for challenging "agency action." Or otherwise, directly filing suit as before.

Regardless of the theoretical vehicle, you'd have the same problems in the way of success as prior attempts in the courts have had, where you can't get the information needed to have your claim survive in the first place.

Let's hope the Chevron doctrine gets overturned. It's being debated now before SCOTUS.

I'd say Chevron deference is almost certainly dead this term, but I wouldn't expect it to make much if any difference to things like this "national security" stuff. Here especially, this court springs from an executive order so Chevron probably doesn't even apply to it (maybe in a more narrow sense like, is there authority to even have the court in the first place).

Chevron's an interesting one... personally I'm for retaining it, but it's another of these cases where its outsized importance is just a symptom of the broken state of the government. Chevron deference only applies where Congress has delegated power and the statute is vague, so Congress has a simple and obvious route to overriding or correcting any undesired actions by the agencies that rely on Chevron to be upheld. But with substantive lawmaking so seemingly impossible now for such a long time, the executive and the courts have gained more and more practical power. Keeping or killing Chevron is all about just shifting the balance of power between the judicial and the executive, with the legislature standing idly by. Part of the problem is that Congress is happy to allow this to happen, to reduce their workload and their accountability.

Apparently more generally, Virginia, here is some of reality:

(1) Holes. We have a Constitution, laws, regulations, etc., but they do not cover every possible situation and, instead, there are holes.

(2) New. In particular, things that are new in tech, science, math (even math, e.g., RSA encryption), etc. can create "situations" not covered by (1). That is, in principle the "holes" were already there and not being exploited or causing problems, but then something "new" comes along and, using "holes," creates new situations and new problems.

(3) F'get about it. Typically a "new problem" has comparatively small effect with only a few people concerned about the effects. Then, usually the attitude is f'get about it. E.g., the "situation" may not have common sense, justice, equity, etc.

(4) Squeaks and Grease.

Yup, "The wheel that squeaks gets the grease." Or, when in some sense the problem is big enough, then it gets attention -- deals, lawsuits, Congress, the Executive Branch, elections, ..., the Constitution.

(5) Point. Virginia, here is the point: The "attention" in (4) can take big time, money, and effort, e.g., for time, years, maybe decades.

In particular, Virginia, if reality is like a boat, even if it is not leaking now, actually, unfortunately it is NOT fully water-tight and in some new weather, situations, can LEAK.

What to do? Try to avoid situations where need to depend on justice, good common sense, no holes, no "leaks", lawyers, laws, Congress, elections (e.g., politics), the Constitution, etc.

Can we just get to the point and admit the world, all countries are corrupt and that evil is the entity that's in control?

You can no longer trust anything or anyone. If you speak out your shot, reprimanded or gagged.

Regardless to who owns who's data it will always be misused, abused or used for something.

And as data is now a commodity that can be sold to anyone and the sci-fi dystopian future is already one. There is no freedom nor freedom to speech, with the ability that we can reach space on a commercial level with satellites, fear for the worse.

The internet is a failure. It brings usefulness but sure isn't used for it; not anymore at least.

Prove me wrong, but with the masses lapping up social media, you'll going to have a hard time proving it. My two cents.

Ok let’s say we agree with you.

Now what?

From a political side of things, not much. So lets ignore that but move forward from an internet point of view. Take the concept that the data you own is when you own the devices where the data is held.

A good example is cloud vs colocation. If your leasing services from a cloud provider, the data is not yours. You don't own the hardware, you don't own the storage. While you may store user data it's still not yours. You just have it in your possession; you own nothing within the Cloud.

This is why I love co-location, heavily influenced by, keeps my sanity; as it allows me to keep control. So lets take simple data view: a web servers access.log.

If you were to access my website, the data that is recorded is Web Browser, IP, and User Agent. It's not provisional, nor owned by another third-party company. The third-party service (evil: amazon, google or whoever) can demand you to hand over the data regardless or shut off your service. No one can request that from me unless you file a proper request which I can than fight.

As I own the hardware, I own the hard-drives, I own the switches that are connected to my server and you could say that the data is in transit is not mine. True, it is only mine once it's processed and stored upon my server but that enables me to do what I wish, ethically, or non. In that scenario, your data is owned by two parties - Me and your ISP.

So how do you break free from this? Encryption? Still a commodity, it may be secured by X cipher, but it's still data. Still a commodity.

"Hey, got any encrypted data for sale?" .. sure you may never be able to decrypt but you've got the data which could potentially lead to a password or just pointless meta. Who knows, I still bought and now own a copy of your data.

Mesh networking is the of the few ways forward. And that, one example I mean is connecting to your neighbours network. We can all pick up WiFi networks of our neighbours. Now imagine where if you could connect to your neighbours, neigbours-neighbours network free and that every single neighbour WiFi network hosted a service that you could host at home? From a laptop, to a super-computer in your jacuzzi -- Not only is data than yours, it's also theirs, isn't owned by your ISP's, evil entity I would call.

However, there is a lot more to it than what I have posted but I hope it paints the viewpoint that I see. A theory at least.

Overall, it's ironic really. We all pay for the same ISP, mass use the same router they provide and then we all segment them off so "no one else" can use it. Yet if everyone enabled each other network with QoS you could have an whole new internet hosting services owned only by yourself without ISP control.

If you bought a WiFi router that's not leased by your ISP; your free. All because you own the hardware. WiFi is now so potent you wouldn't even need a ISP. Why do you think ISP's make it difficult host services at home?

> in July, European officials declared it adequate to the task, reopening a smoother transatlantic data trade.

(From the Politico article)

Isn't this the real problem? It's hard to understand why they approved this.

You have been on double secret probation

Can we just use the source article instead of this tech..dirt:

https://www.politico.com/news/2024/01/17/inside-bidens-secre...

As usually

There’s always another secrecy group that oversees the other and then eventually is overseen by the joint chiefs, president, or some other un-named official.

This is why we need a Super Secret Journalism Organization to monitor and report on the other Super Secret groups.

Ed and Chelsea and Juilan probably have some thoughts on how that works out.

Reply on news.ycombinator.com