FISA court rules NSA can resume bulk data collection
nytimes.com
nytimes.com
> Between 2001 and 2012, the FISA judges approved 20,909 surveillance and property search warrants - an average of 33 a week. During that 12-year period, the judges denied just 10 applications. Prosecutors withdrew another 26 applications.
> From 2007 to 2012, FISA judges also approved 532 "business record" warrant applications, the category used in the order that directed Verizon to release metadata on all phone calls inside the United States. No business record warrants were rejected.
and, on the judges perception of themselves:
> Walton, the senior judge on FISA, declined to be interviewed. In a statement, he said: "The perception that the court is a rubber stamp is absolutely false. There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts, and then by the judges, to ensure that the court's authorizations comport with what the applicable statutes authorize."
http://www.reuters.com/article/2013/06/21/us-usa-security-fi...
FISA court isn't about declaring people guilty, it's about declaring whether there's reasonable suspicion.
https://www.eff.org/deeplinks/2014/05/new-eff-aclu-amicus-br...
In fact there is no suspicion at all, and that lack of suspicion is the crux of the whole argument is it not?
So that is very different.
The main exception that we know about in the regular criminal justice system has been cell site simulators and cell site location information, where the government tried super-hard to prevent people from knowing that this information was being collected or challenging its collection or use.
The standard for an NSA "general warrant" is FAR, and I mean FAR weaker than for a regular warrant. Literally orders of magnitudes weaker, to the point you could barely consider it a "standard". Especially when the FISA court approves for for 3 months at once (and now for 6).
What kind of "warrant" is that? Does that sound reasonable to you?
If the statutes are extremely broad and permissive of surveillance, then he could well be telling the truth - FISA could be rigorously scrutinising every request and finding that the statutes permit almost all of them.
I haven't found a single statistic on that seems that no one actually is keeping or publishing it, but every article I've read seems to point that denying warrants is very rare in all jurisdictions.
e.g.: http://tucson.com/news/local/crime/rejection-of-search-warra...
I mean in California police officers can request a warrant and have it signed digitally, and they even got a fucking app for that.
When you automate a system to a point when a police officer can get a warrant on his Ipad i some how don't think that many of them are denied.
Reason being, the agency powers that be don't want to send something up that will be disapproved because it takes significant time and effort of general counsel and leadership of these agencies to process, implement and track to maintain compliance - even if the warrant is reasonably broad.
So these numbers really don't mean anything in terms of just "blanket surveillance." The bar for even getting something to the court, in my experience, is incredibly high and you typically need very high ranking people to sign off on it. Which means your evidence, reason for doing and ensuring that it is within the boundaries of EO 12333 and a million other regulations, has to be pretty airtight.
No.
NSA: Can we spy on everyone at once?
FISA: Why yes of course you can - BUT, you have to fill out this form first...and do it properly or we'll never approve you!
NSA: Oh..but that's such a drag! Okay, fine, we'll do it.
That's kind of what seems to be happening.
Also, my "reasonable" meant "legally reasonable".
We've got two arguments
- Did FISA properly check submissions were appropriate for their rules/laws.
- Are FISA rules/laws appropriate for USA #1
Which is exactly what people have complained about.
Every single year people who are read onto FISA must complete a comprehensive course on how to deal with FISA data, and it's not taken lightly. People lose their job over mishandling of this type of data, for reasons such as: poor query construction, failure to timely delete accidental collection on US Persons, or collecting without prior justification.
If the rules/procedures/expectations are well defined, one will attain a great rate of success simply by virtue of having a system which can be predicted ( failing candidates early, prior to submission ). This doesn't mean that the system is a rubber stamp, simply that it is reasonably consistent and that the expectations are clear.
This view of rigor/justice contradicts perhaps a common sense understanding which could be rephrased perhaps along the lines of 'should this be warranted/justified?'
It is frustrating perhaps as a result of this mismatch.
How many people are denied marriage applications?
Yet, recently with Marriage Equality...
You mean that rule which previously said you had to delete accidental collected information regarding US persons after 6 months? That rule was changed a year ago to 5 years, and in 4 years there won't be any systems left that can delete information and the 5 years will be extended again and again, in the same way as copyright.
Also, you're forgetting that a federal Court has just said that the Patriot Act NEVER allowed for bulk collection. Yet the FISA Court allowed it. Why?! But that's what you get with a secret spy Court that has no accountability.
Basically, there's no way to claim the system works when we can watch it produce bad results.
The fact that there are any indictments after such extensive training takes place suggests that Internal Investigations is not dismissing warranted claims of illegal police behavior.
I don't buy that logic at all.
Unless you have some sort of inside track, I must ask you how you know that applications are thorough and well constructed? Because the only way to be sure is to allow for public scrutiny, but the whole point of the FISC is to avoid this.
You must have left on horrible terms though, the FISA court has just approved tracking your personal calls. I realize it's not personal, heck, they did the same to me. Nonetheless, there is a warrant to track your personal data. I'm not sure how reliable you could be. Why would they collect your data if you aren't under investigation?
Anyway, this is a stupid ranty argument appealing to emotion rather than logic. Bulk collection seems wrong in a way i have a hard time articulating.
We're at far more risk from public servants with delusions of grandeur and infallibility going unchecked than lunatics with bombs. Lunatics with bombs cannot destroy democracy & freedom.
“The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government - lest it come to dominate our lives and interests.” ― Patrick Henry
Indeed, the idea of lunatics with bombs seems to be far more effective at that kind of destruction than actual lunatics.
Definitely in agreement there. Look at history, it's always been the case.
That something is not illegal does not mean it shouldn't be illegal. The FISA process legitimises a kind of mass surveillance that shouldn't be legal to begin with.
This is why people call it a rubber stamp process. Even if they're only approving valid requests, the put problem is what is being considered valid.
How would this be any different from the bar that a prosecutor has for bringing a criminal trial to court? Lost time, lost reputation, chance of losing the election. Every time a prosecutor decides to go all in, they're taking what could be a huge risk -- if not in that particular case then in the aggregate.
Yet we see much different numbers from courts when an open adversarial system is used.
So a reasonable outside observer is left to conclude that either the federal government is full of incredibly competent legal minds, for whom the slightest mistake would be anathema -- or it's a rigged game. Doesn't matter what they bring.
I understand I'm making a bit of a false dichotomy for rhetorical effect, but my argument is still sound. One of these options is much more likely than the other one.
Can we agree that (1) this would be a "massive bureaucratic battle", and (2) the bar would be "incredibly high" ... but (3) this shouldn't reassure us much, because jumping through the bureaucratic hoops and meeting those difficult criteria doesn't actually constitute good reason for having your target assassinated?
Your comments about the FISA court seem a little like this. Let's stipulate that getting approval is a tiresome process, and that there are difficult criteria to meet. That doesn't in any way guarantee that it only happens in cases where it's actually a good idea.
However, you also don't provide much proof that "surveillance is an essential tool in fighting crime". Its efficiency to deter/prevent crime, or even to help catch offenders a posteriori, is also highly debatable (I guess it's more likely to be helpful for the latter, but that still makes the definition of "fighting crime" rather vague as well).
For kicks, I like this paper on how street-lighting and CCTV cameras are apparently equally efficient as deterrent: http://onlinelibrary.wiley.com/doi/10.1111/j.1745-9133.2004.... .
In the case of digital surveillance, I'd be extremely cautious about its actual efficiency. And that something is legal and efficient doesn't necessarily warrant that its ethical and should be used.
If this is to be analogous to bulk surveillance, the assassination agency would have to discover that the target had actually died in an accident eight months ago, just before the forms were submitted, and they would simply retroactively dismiss any wrongful death or homicide cases that may be ongoing.
The panopticon operators are asking forgiveness rather than permission, and only for those specific instances where the surveillance needs to be laundered from illegally gathered to warrant-authorized.
As such, I have no faith that the spying has ever stopped, or slowed, or even decreased its rate of growth. The steep bureaucratic hurdle does nothing to prevent it. The most it does is limit the amount of information that can be moved from the shadows into the sunshine via that method, and strongly encourages less costly alternatives to actually honoring the law. One such workaround is "parallel construction", where the illegal spying is converted into an anonymous tip to another "innocent" agency of the state, who then gets reasonable suspicion on a pretext charge--like failure to signal a lane change, plus the invocation of the magical ritual phrase "I smell marijuana"--and then the road-patrol cop somehow finds 20 kilograms of cocaine in the trunk.
Fixing or eliminating the FISA court won't stop the behavior. Only actual accountability for the people actually doing the dirty deeds will help.
This is a very dubious assertion. I'm not aware of any evidence that mass surveillance deters or prevents crime at all, much less is "an essential tool" for doing so.
But even if one, for the sake of argument, concedes the point that mass surveillance does significantly deter or prevent crime, you still have a system set up where the costs of that surveillance (loss of privacy, loss of accountability for abuses of power, introducing/secretly discovering backdoors, etc) are borne by the least powerful--ordinary citizens--while the benefits of mass surveillance (concentration of power, ability to bribe/extort/intimidate rivals, being seen as "doing something" about terrorism, etc) accrue only to those who are already powerful.
That is the real problem with mass surveillance. It creates a positive feedback loop that only exacerbates existing power imbalances, inevitably leading to corruption and capricious injustices by those who are most able to get away with it. Having a speedbump on the road to that inevitable destination, even a big one, is not much of a consolation if the heading is still the same.
Oh, you think you are sneaky. This is so carefully worded. You explicitly twist the words of the GP, where they use "fighting crime" you turn that to meaning "deters of prevents crime." They mention "surveillance", and you turn that into "mass surveillance."
That's like me saying "I don't see how fingerprint analysis helps to deter or prevent crimes." Oh sure, it helps capture people after the fact, but I don't think there has ever been evidence show that fingerprint analysis has actually deterred or prevented crime.
So, while you can stand their, smug with your "technically correct" remark, the reality is "surveillance is an essential tool in fighting crime" has been proven to be correct time and time again, and has been instrumental in handing convictions for a long, long time.
That sounds perverse.
State and federal law enforcement can request a warrant. The turnaround time is far lower, the search methods more diverse, and the evidence gathered can be used in court.
Unfortunately, state law enforement can still subpoena your email metadata and your phone records without a warrant: https://en.wikipedia.org/wiki/Smith_v._Maryland
Separately from belief, which is somewhat subjective (i.e. it involves more inputs than is practical to list in a discussion), it's important to realize that on a logical level, there are at least two interpretations to a 99% acceptance rate: (1) the bar is really low and (2) there are pre-filters. The certainty with which I often hear (1) being declared or implied seems to miss this point.
Government agencies will use FISA because it's there and they know it will get them what they want regardless of whether it makes sense to do it or not, leaked documents have shown.
On the other hand, saying that it's hard to get something to the court means basically nothing unless we trust that the bureaucracy and the court share our standards for "good requests". Having seen what things the FISA court has approved in the past, we can say that the system doesn't work simply because it already hasn't worked.
What's the pass/fail ratio for it?
To clarify the statements in press have been that no terrorists have been arrested based on the data. That is not the same as never having arrests.
There have been plenty of domestic arrests but they don't typically fall under the "terrorism" scope because of the nature of the act. Espionage etc... can be proven with this data and actions can be taken (like arrests) more quickly and easily than determining if someone is going to attack something a la terrorism.
I have no involvement in this case but I would say almost for certain that portions of surveillance in this case went to FISA for approval: http://www.businessinsider.com/fbi-we-arrested-a-russian-spy...
A gripe I have with the community at large is that the messaging focuses too much on terrorism and not enough on the other functions that are seeing successes everyday (counterintelligence etc...).
1. It applies to agencies you know and more specifically parts of those agencies you have experience with. Many federal agencies have demonstrated that the left hand and the right hand don't always talk.
2. Other agencies are free to apply different policies (cough NSA cough DEA cough) that aren't in line with say, the FBI's policies.
3. This does not change the fact that the FISA court acts as a rubber stamp, the bulk majority of what it rubber-stamps might have met the requirement of EO 12333, some of ought might also have been legal under the constitution and existing laws or maybe the judges are so blasé that they just assume that most of what they see must be OK, it got there after all.
Is it me? I just hear Nixon saying "I'm not a crook"...
Given the track record, I wonder what kind of mindset it takes for people who still believe official statements of that kind.
Of course, a right being clearly stated in the Constitution doesn't do much to protect it either. Consider all the limits on gun ownership that run counter to the second amendment. Even someone who is against guns should be of the view that a Constitutional amendment should be needed to allow for limits like those we currently have. For example, banning a mentally ill person from owning a gun or charging a licensing fee to own a gun. Both of these exists and are not considered to infringe on second amendment rights. Now imagine if the same logic was applied to other rights, such as a fee to vote or not allowing free speech to those deemed to have a mental illness (never mind the difficulty in determining what constitutes a mental illness).
Sounds pretty reasonable, until you read:
> Every few months, the FISA judges set aside their regular, public cases, travel to Washington, and take the bench inside a secure, windowless courtroom at 333 Constitution Avenue.
Oh, so what actually happens is that every few months the judges get together and do a "rigorous review process of applications" of hundreds of applications?
Sounds legit to me.
... wait...
...and that article suggests that (if we accept they rotate duty and meet monthly say) they spend, on average, (8 hours / 133 * 60 minutes) ~3.5 minutes carefully evaluating each application. If not, it's ~30 seconds per application.
So are the numbers wrong? Or is the bold assertion that they 'carefully review each application' completely farcical?
30 seconds to rubber stamp an application sounds about right to me.
The point remains; there is no 'fulltime' FISA court.
Periodically the presiding judges get together and process a bulk of applications all at once.
The FISC has its own website which happens to answer your question right on the "About" page[1]:
The Court sits in Washington D.C., and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis.
> ...and that article suggests that (if we accept they rotate duty and meet monthly say) they spend, on average, (8 hours / 133 * 60 minutes) ~3.5 minutes carefully evaluating each application. If not, it's ~30 seconds per application.
No, the article says 33 per week. The judges aren't meeting together every few months; the sitting judge is replaced by the next every week or so. Assuming an 8 hour work day and 33 warrants per week, that (8 * 5) / 33 = 1.2 hours per warrant on average.
[1] http://www.fisc.uscourts.gov/about-foreign-intelligence-surv...
And their jobs are not really to weigh the merits, but to cover the judge's ass, just in case something really egregious comes back that points at their bench.
As they preside over a secret court that determines whether the low standard of reasonable suspicion has been passed, the judges barely need to spend any time at all actually judging anything. The worst that can happen is that the trial judge might exclude the evidence collected on their warrant, and that's about as damaging to their careers as an ingrown hair.
I'm not sure you could find a cushier job if you designed one from scratch.
Something here is not adding up.
>"During a single four-hour workday last week, a Mecklenburg County grand jury heard 276 cases and handed down 276 indictments.
That means the 18 jurors heard evidence, asked questions, weighed whether the charges merit a trial, then voted on the indictments – all at the average rate of one case every 52 seconds…".
The only way to prevent surveillance is with a technical solution (encryption), not a legal solution (more laws).
The encryption game is rigged since the NSA and other government actors are able to use public funds to sabotage it. So the legal angle is still important.
I'd say both have their place however focus on protecting the legality of encryption, not on making it illegal to spy. Bolster security by design with law, don't use law to haphazardly stop spooks from doing spooky things.
Which is insane. It absolutely should be.
Unfortunately, I don't forsee Congress doing much to solve this any time soon.
TL;DR - If congress made it "illegal" it wouldn't change anything. That they refuse to, will change everything.
Also, the third-party doctrine is sort of a recognition of the right the blow the whistle on crimes you see. It's not even (generally) a bad thing. It's only our government's too-cozy of a relationship with too much of the industry that means it's not whistle-blowing but twisted-arm leaks.
Government rules by the mandate of the people. And we don't owe it a n-year mandate, or the completion of a grand plan, or trust, etc. When it steps out of line it is illegitimate despite its "legality" in its own laws.
The problem is that your backend servers can no longer operate on that data in any meaningful way. For this reason, full end-to-end encryption is likely not realistic for certain applications.
Simpler applications, like iMessage, can and do implement end-to-end encryption without much difficulty at all.
You need both. By that same logic do you think the constitution and bill of rights is a pointless endeavor? Our government has violated these rights many times in our history. I could just as easily say that the constitutional amendments passed after the civil war were pointless because there was still institutionalized discrimination and racism for another hundred years.
How much did encryption help Lavabit? The court forced them to hand over the encryption keys anyway.
We need to change the laws and place proper oversight over the NSA and other intelligence agencies with real penalties for the violation of our rights. Encryption alone is not enough.
What's more, people tend to prefer centralised systems at the moment, for the sake usability. E.g., I don't see how Androids automatic photo backup could be as friction-less otherwise.
This. The flagrant violations of our constitution that have taken place are tantamount to treason and the guilty parties deserve punishment at the level of life in prison. And I will vote for any candidate that has the intestinal fortitude to say so.
Lavabit has a pretty bad system because it did not take the law into account at all and was run by someone that does not seem to understand legal concepts very well. From what I understand, the court that forced them was not FISA, but a plain old federal trial court. Please correct me if I'm wrong.
I think it would be interesting to push in that direction (it does not prevent from trying to encrypt your data as well).
I mean, this is really simple stuff - like Marbury vs. Madison simple.
Isn't this precisely what the Church committee (out of which FISA grew) intended to prevent?
edit: Clarified first paragraph
Sure, they're all created by congress, but the District and Circuit courts have clear, long-established, transparent mechanisms for figuring out who is on the court.
Congress has an authority to create courts as they see fit, now FISA might not be perfect it might be a complete disaster, but it's not unique as all modern courts have issues on being completely transparent at all times.
For example court orders such as search and seizure, peak and enter, wiretap etc' cant be public for obvious reasons since you can't argue that when you need to tap some one's phone to gather enough evidence to convict them of a crime you can make it public. You could also argue that such warrants violate the whole "innocent until proven guilty" posture by simply issuing a warrant before there's actual evidence of that a crime has been committed, or in fact it allows the state to force people to incriminate them selves in future crimes.
Now back to the FISA court the hearings and it's orders on specific efforts against specific targets can't be public, some oversight and process transparency might be possible but you can't make a court like that public.
That said the US is pretty much the only country which actually has a court like that, everyone spies, not to the extent that the US does but no one else have those resources, but I haven't heared about any other country in which the intelligence services have not only executive/legislative oversights but also judicial.
“The FISC is forced to rely upon the accuracy of the information that is provided to the court,” Judge Reggie Walton, chief judge of the Foreign Intelligence Surveillance Court (aka FISA court) wrote. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”[1]
The utter and complete lack of transparency around the FISA court pretty much makes it impossible to verify that information. We are left with the Executive saying, "Trust us, we won't do anything wrong".
1. http://www.washingtonpost.com/politics/court-ability-to-poli...
The actual arguments start from 10 and go to 12. The quote about Second Court not being binding on them is from page 14, and some problems they had with the Second Court's analysis are on page 16, including pointing out that some of the claims of the Second Court are no longer true after the Freedom Act was passed.
Since the FISA court isn't under the Second Circuit, it is under no obligation to follow second circuit holdings.
Further, the FISA court distinguishes from the situation in the Second Circuit, but that's not all that persuasive to me.
- In any case the USA FREEDOM Act explicitly rules out bulk collection by the NSA in 6 months ( it's done by the phone companies afterwards, not sure if that's really any better)
- The Second Circuit ruled that Section 215 of the Patriot Act was not intended to allow for mass surveillance. But they did not issue an injunction, saying that further action is dependent on the USA FREEDOM Act
- Congress passed the act _with this 6 month period_ and otherwise similar language, basically saying "We know this is interpreted as mass surveillance, and we are not contradicting that"
The second circuit ruling was not based off of constitutional interpretation, but off of the interpretation of the law. By passing the Freedom act with that 6 month period, Congress has made clear that the "mass surveillance" interpretation is acceptable to them (again, for that 6 month period).
If their opinion went the other way, they could rescind previous bulk collection warrants, which means the NSA would have to stop their activity.
It is like if the FBI was doing the bulk collection but never using the data to prosecute anyone: there isn't any place for the exclusionary rule* to restrain the prosecution.
* this is a good intro for the unfamiliar: http://lawcomic.net/guide/?p=1585
>The surveillance court is subject to review by its own appeals panel, the Foreign Intelligence Surveillance Court of Review. Both the Second Circuit and the surveillance review court are in turn subject to the Supreme Court, which resolves conflicts between appeals courts.
That is true, but it's almost the universal constant in life. The fight for good is never won... it's a continual struggle, a process- not fixed condition to be achieved.
Are you sure people aren't being blackmailed? How sure?
So what makes you think the NSA isn't?
Not sure he'd be able to accomplish everything he talks about due to political realities. That said, the massive message sent by having him and his ideas pushed to the top of the stack would shake-up the political class. It's about letting them know, in very clear terms, what we want and what we are unhappy with.
American Justice is a farce, illegitimate, and to be utterly ignored.