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Comment by bobwaycott | Hacker News Reader

Do you think it also can legitimately be explained as Congress lacking the technical understanding necessary to pass adequate legislation in this regard? Or does that fall under the domain of 'too short-sighted'? Perhaps the lack of necessary long-view is a result of fundamental ignorance of technical issues?

Do we know where the pressure/lobbying for passing rule-making authority was sourced?

I'm not on the 'power grab by the surveillance state' wagon, but I am keenly interested in where the sources lie and what arguments convinced Congress to pass off rule-making authority.

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I think it's a structurally similar but substantively different problem that resulted in FISA.

It's not that foreign signals intelligence is too technical a topic to regulate, but rather that FISA necessarily deals in the whole sweep of the most sensitive secrets the USG handles. One imagines that virtually any sensible bright-line rule a legislature could come up with would immediately compromise some prima facie legitimate objective that NSA might already have. Worse still, the process of sorting out these conflicts between pragmatism and principle involves a sort of survey of the whole landscape of secrecy --- which, suffice it to say, is not a terrain Congress is comfortable wandering around.

That's not to say that all, or even most, of what NSA does is prima facie legitimate! It's just to point out that there are probably a diversity of legitimate programs that need to be accounted for, but somehow accounted for without betraying them to the world.

Thanks.

Okay, so it almost sounds like the problem here is Congress is reticent to dig into surveillance issues, not because they can't keep the proceedings secret during a hearing on classified matters, but because passing legislation that responds to issues uncovered during such a hearing would have the undesirable effect of promulgating exactly what potentially problematic issues are at play in the text of laws (which would then have the undesired effect of notifying legitimate enemies/adversaries/targets as to what the specific technical capabilities of NSA, et al., are). So, if this is somewhat accurate as assessment, the congressional response is to then create a legal gatekeeper that can adequately assess the sensitive nature of the issues and (hopefully) provide sane guidance and oversight without codifying problems in laws. Hence, the prevalence of rules and policies that allegedly safeguard citizens, but no specifically detailed laws on the matter?

Now, the task appears to be interrogating whether or not this is a valid protection of the citizens' rights without violating or unintentionally weakening the Executive powers we depend on for national security, right? Given that the leaks have publicized an alleged extent of sigint activities and capabilities, at what point does Congress act to legislate legitimate safeguards?

[edit: a bit more clarity]

EXACTLY (i think!). And the answer to your follow-up question appears to be "no". It's an open question what the next step should be to augment (or replace) FISA. The system we have now countenanced NSA's requisitioning of Verizon's entire domestic call database under the "business records" extension in PATRIOT.

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