October 3, 2011 FISC Opinion Holding NSA Surveillance Unconstitutional
eff.org
eff.org
> The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.
On Page 17, the revelation that the NSA were acquiring Internet transactions before the Court's approval of Section 702:
> The government's submissions make clear not only that NSA has been acquiring Internet transactions since before the Court's approval of the first Section 702 certification in 2008, but also that NSA seeks to continue the collection of Internet transactions.
On Page 71, the revelation that data acquired via upstream interception pales in comparison to that acquired directly from Internet service providers:
> Nor do these disclosures affect NSA's collection of Internet communications directly from Internet service providers [redacted], which accounts for approximately 91% of the Internet communications acquired by NSA each year under Section 702.
The Court concluded that this requirement had been 'so frequently and systematically violated that it can fairly be said that this critical element of the overall.. regime has never functioned effectively.'
edit: from Pg. 16, footnoote 14
And this clearly takes the program out of the realm of honest attempts to protect security within the law where perhaps there are disagreements, major or minor, about the boundaries; a regular pattern of misrepresentation to the court overseeing surveillance erases any grounds to claim that the surveillance effort did not involve deliberate, conscious illegality and deliberate, conscious efforts to conceal that illegality.
> However, the Court is unable to find that NSA's minimization procedures, as the government proposes to aply them in connection with MCTs, are "reasonably designed in light of the purpose and technique of the particular [surveillance or physical search], to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce and disseminate foreign intelligence information." 50 USC 1801(h)(1) & 1821(4)(a). The Court is also unable to find that NSA's targeting and minimization procedures, as the government proposes to implement them in connection with MCTs, are consistent with the Fourth Amendment. -- Page 29
> ... the government stresse that the number of protected communications acquired is relatively small in comparison to the total number of Internet communications obtained by NSA through its upstream collection. That is true enough, given the enormous volume of Internet transactions acquired by NSA through its upstream collection (approximately 26.5 million annually). But the number is small only in that relative sense. ... In absolute terms, tens of thousands of non-target, protected communications actually is a very large number. -- Page 72
> At issue here are the personal [redacted] communications of U.S. persons and persons in the United States. A person's "papers" are among the four items that are specifically listed in the Fourth Amendment as subject to protection against unreasonable search and seizure. Whether they are transmitted by letter, telephone or e-mail, a person's private communications are akin to personal papers. Indeed, the Supreme Court has held that the parties to telephone communications and the senders and recipients of written communications generally have a reasonable expectation of privacy in the contents of those communications. -- Page 73
> The Court concludes that one aspect of the proposed collection - the "upstream collection" of Internet transactions containing multiple communications, or MCTs - is, in some respects, deficient on statutory and constitutional grounds. -- Page 79
> NSA's targeting and minimization procedures, as the government proposes to apply them to MCTs as to which the "active user" is not known to be a tasked selector, are inconstistent with the requirements of the Fourth Amendment. -- Page 80
the personal [redacted] communications
If the FISC is using language this strong, what would a normal court have to say about the NSA's brazen approach to the law?
Also, last time I checked violating the law of the land is supposed to involve punishment. How is Bradley Manning as an individual violating a law different than the NSA? Why couldn't he simply be told to stop doing what he was doing? </sarcasm>
If a normal police officer goes in violation of a warrant, he/she is jeopardizing the case and potentially their career/livelihood. Nothing to say of a common citizen violating a law.
That said, I really don't see how there could be an argument of an effective oversight, if what you are overseeing is so secret that you have no independent information on the subject matter. The secret organization (NSA in this case) is strongly incentivized to not disclose the entire truth or withhold key limitations in order to achieve its' objectives. If there is no way to independently verify that what is being said/committed to is actually functioning, court pretty much has to trust NSA to self-police. Everything here is being done on the NSA's terms and not the Courts or Congress's.
http://www.washingtonpost.com/politics/court-ability-to-poli...
this needs to be stopped!
Executive orders of secrecy can and will make everyone guilty of espionage at some point. 2 + 2 == 4 is now declared "TOP SECRET" to reveal it is an act against the US.
"The document's failure to adequately specify binary operator precedence and associativity was a deliberate choice on the part of the author(s) and the court should hold the value of "2" [2 + (2==4)]as TOP SECRET as well. The failure to do so sets a dangerous precedent of strict adherence to ANSI C operator precedence regardless of context"
The court's concern centers around purely domestic communications and the failure of the NSA's minimization procedures to exclude it from the collections.
http://i.imgur.com/APhAVKE.png
In a sea of blacked out information, our government censors have given us this tidbit, when apparently no other sentence on these pages was deemed fit to be released.
It is pure travesty. The courts had to tear this document full of legalese from the governments hands, and they still allow these muppets to censor according to political agenda?
[cross-out]-TOP SECRET-//-COMINT-//-ORCON,NOFORN-[/cross-out]" 3. The Amended CIA Minimization Procedures
The CIA minimization procedures include a new querying provision [redacted] The new language would allow the CIA to conduct queries of Section 702-acquired information using United States-person identifiers. All CIA queries of Section 702 collection would be subject to review by the Department of Justice and the Office of the DNI. [Redacted], the addition of the new CIA querying provision does not preclude the Court from concluding that the amended CIA minimization procedures satisfy the statutory definition of minimization procedures and comply with the Fourth Amendment.
[footnote: The Court understands that NSA does not share its upstream collection in minimized form with the CIA]
[new paragraph]
The amended CIA minimization procedures include [Redacted] raises no concerns in the context of the CIA minimization procedures
[new paragraph]
[redacted]
[new paragraph]
the government has also added [redacted] It likewise raises no Fourth Amendment problem. [redacted]
[new paragraph] Finally, a new provision [redacted] The court likewise sees no problem with the addition [single word redacted] to the CIA minimization procedures.
[end section]"