FBI director admits they rarely have probable cause for using NSA collections

https://www.techdirt.com/2023/11/21/fbi-director-admits-agency-rarely-has-probable-cause-when-it-performs-backdoor-searches-of-nsa-collections/

by repelsteeltje • 3 years ago

426 134 3 years ago

techdirt.com

pipo234• 3 years ago

Brilliant. I particularly liked the first comment (Anonymous Coward):

Wray meant:
Of course, we have probable cause.
We always have probable cause for everything we do–well, mostly anyway.
Well, I mean, we could maybe get probable cause, but it’s too complicated and it takes too long.
You see, by the time we find an excuse that might double for probable cause, so much time will have passed, that we will all have died of old age.
And that’s assuming we can really find an excuse in the first place.

olliej• 3 years ago

Yeah it was such a bizarre argument that highlights just how unconstitutional this is: "if we need a warrant to do this, we wouldn't be able to do it because we'd fail the probable cause part". That's not a good argument dude, that's an admission that this program is unconstitutional.

xt00• 3 years ago

The acid test for this is, if its OK for the FBI to spy on you as a citizen, then cool, we need the right to spy on the FBI agent and his family members -- why does he get to spy on me and my family members when there is zero reason for them to do that? I don't have anything to hide, and neither should he, so its all kosher right?

soulofmischief• 3 years ago

You should be able to do just about anything they claim is legal without needing probable cause or a warrant.

I don't know what America Chris Wray is from, but in my America, law officers should not get any special treatment when it comes to this. The same arguments that would constitute your actions as stalking should apply to the FBI, if they are engaging in the same set of behaviors while operating outside of any special judicial framework such as a warrant.

phpisthebest• 3 years ago

The single greatest problem we have in government today is the fact that over the years we have added more and more exclusions, exemptions, and privileges for "law enforcement"

Rules for thee but not for me is the height of government tyranny, and today that is at all levels of governance from something as simple as parking enforcement all the up to lethal force

No government agent should be exempt from the law, no government agent should have special rights.

rightbyte• 3 years ago

National insecurity something something. You know. Some are more equal than others.

Teever• 3 years ago

I agree with this one hundred percent. I wish there was some sort of organization that coordinated OSINT efforts on law enforcement.

https://en.wikipedia.org/wiki/Sousveillance

aa-jv• 3 years ago

Don't worry. The grass roots have got this ..

https://www.youtube.com/@AuditTheAudit

kenjackson3• 3 years ago

I think I believe the problem isn’t lack of privacy, buts unilateral privacy. I’d be willing to get rid of most of my privacy, iff everyone else did too. But when you’re a target and you don’t even know who is looking, that feels like the problem.

li2uR3ce• 3 years ago

FBI: See the problem we face is finding a needle in a haystack.

Morons in congress: Oh, we're really sorry to hear that, what should we do?

FBI: Give us more hay for the stack.

EMCymatics• 3 years ago

It's just so slow

Terr_3• 3 years ago

On the subject of FBI/NSA/CIA insincerity, that makes me think of various post-9/11 debates often involving "ticking bomb" Hollywood scenarios.

I'd like to reiterate that any kind of "OMG there's no time we must stop the NYC WMD ASAP" scenario already has a special exception route: Just commit the necessary spying/theft/torture crime, and plan for a Presidential pardon after explaining the extraordinary circumstances that totally justified your action.

If they aren't willing to put their own skin in the game, then the situation cannot be as clearly dire as they claim.

kenjackson3• 3 years ago

That’s insincere. Even if you truly believe a catastrophe may happen you may not be willing to risk life in prison because the President doesn’t like your bosses boss.

nofunsir• 3 years ago

NSA analyst?

coldtea8• 3 years ago

You really think in that case they'd be bound by the President's likes and dislikes? If the President or whatever court didn't let them out, there would be riots in the streets.

ssnistfajen2• 3 years ago

If you can't justify that risk tradeoff, then it's probably not that catastrophic to begin with.

Terr_3• 3 years ago

life in prison because the President doesn’t like your bosses boss

1. If the President hates the CIA/NSA/FBI director that much they tend to get quickly replaced.

2. Punishing a lower-level agent with prison doesn't seem like an effective way to get revenge on whatever agency leadership the President might hate.

You're making an appeal to a compound scenario: It isn't just (A) "Hollywood ticking bomb" unlikely, but also (B) "TV political backstabbing drama" unlikely, multiplied again by (C) "stupidly baroque form of revenge" unlikely... to get a final probability somewhere near zero-point-zero-zero-not-gonna-happen-LOL.

So no, I don't think that fantastical hypothetical justifies day-to-day erosion of rule-of-law and civil rights.

Even if you truly believe a catastrophe may happen

If someone truly believes it and they have a reasonable basis behind that belief [0], then surely the morality of saving millions from an atomic fireball or whatever goes pretty dang far in outweighing 1-20 years in federal prison, and they will have ample evidence to make a strong case for getting a pardon.

[0] If spy/agent/analyst dude "truly believes" but for no real reason other than voices in their head, a prophetic dream, hidden scriptures, or alphabet-soup... they are already incompetent and need to be fired immediately to remove them from that position of authority.

realce• 3 years ago

The proof is in the pudding! Since there have been no horrible events since the ultra-law was enacted, it must be working!

coldtea8• 3 years ago

No polar bears in Arizona either since I installed my anti-polar-bear device there. Must be working!

Terr_3• 3 years ago

Lisa Simpson [0] approved.

[0] https://www.youtube.com/watch?v=wnBMwPcRbVE

sobkas• 3 years ago

On the subject of FBI/NSA/CIA insincerity, that makes me think of various post-9/11 debates often involving "ticking bomb" Hollywood scenarios.

It would be appropriate if we could reverse "ticking bomb" scenario. What if we suspect that government is about to break construction, would it be appropriate for citizens to torture public officials to reveal such information? After all neither of them (government and citizens) should be able to do so legally.

crmd• 3 years ago

A good friend who worked for DoD explained it well to me: unseemly behavior in response to “ticking time bomb” scenarios should be absolutely 100% illegal; don’t worry, if it ever actually happens (unlikely) we will break the law and ask for forgiveness.

CoastalCoder• 3 years ago

I'm sure it would end badly, but sometimes I fantasize about the U.S. citizens having a LEO that actively investigates / prosecutes government officials who violate the constitution.

underseacables3• 3 years ago

I could not think of something more that America needs. The government accountability office publishers reports all the time about government waste and malfeasance, but it is consistently, dare I say, pointedly, ignored. Having a separate independent agency, cast with investigating and prosecuting crime and criminals within the government itself would be amazing.

Same with congress.

Eddy_Viscosity2• 3 years ago

This would be good, right up until it itself becomes as corrupted as the entities is prosecutes. The problem is that 'unconstitutional' is in the eye of the beholder. Take for example the classic "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.". Does this mean all gun control laws are unconstitutional or does it mean that gun control laws are implicit in what it means to be a 'A well regulated Militia'; the army for example has a ton of rules about guns. Good arguments can be made for either of these views (and others). Interpretation is everything.

appleskeptic2• 3 years ago

This would be awful. Theft and bribery are already prosecuted aggressively. If anything, too much. It’s gotten to the point that high government officials can’t afford to be lobbied. Here they are, some of the most powerful people in the world, paid barely enough to live an hour drive away from DC, having to spend a fair bit of their personal income to go to lunch and dinner with leaders of private industry.

As for criminalizing “waste”, you start to get dangerously close to criminalizing politics itself. Then it just becomes about controlling DOJ and using it to go after your enemies (this is already too true).

The better thing to do would with regards to intelligence agency abuses would be to have more review of the decisions, mandatory discipline of rulebreakers, and prosecution of specific crimes committed for egregious cases. No need to generally criminalize every time a government official makes a bad judgment call.

yieldcrv2• 3 years ago

Developed nations laugh at our checks and balances, because we believe in them

bUt aT LeAst wE cAN tALK aBoUt It

Throw10987• 3 years ago

Believe me it is not laughing in a good way, it is more a nervous laughter with a permanent sinking feeling in the stomach kind of way.

The collective 'we' developed nations have our own set of problems, but broadly speaking from time to time self correct away from polarisation to hopefully enough of a degree.

A unique kind of leadership needs to be allowed to grow in America to stear a less polarised course.

photochemsyn• 3 years ago

It's certainly possible, but the U.S. Supreme Court has been working against the exposure of such crimes by government officials:

https://whyy.org/articles/temple-professor-suing-fbi-for-wro...

"Xi’s team has a very high legal hurdle to clear because recent Supreme Court decisions make it very difficult to sue federal officials for damages for violating constitutional rights."

advisedwang• 3 years ago

I'm not sure having police investigating our elected officials is such a good thing. If you look at corruption investigations of high level officials in history, they are very frequently partisan attacks. For example, the investigation into Lula da Silva turned out to have been driven by a group of right wing judges and prosecutors that had his ouster as a goal, not justice.

It's not even a question of whether corruption happens! Of course it does. E.g. maybe Lula did some kind of wrongdoing. However frequent and highly publicized corruption investigations put the power in the hands of police, prosecutors and judges and takes it away from democratic means. Frankly, I'd rather have a little bit of corruption than allow police to say who is an acceptable leader.

Part of the issue is that there is a lot of grey area in what even counts as corruption. What counts as "violating the constitution" is even greyer, especially in the US where the constitution itself is short, vague and poorly phrased leaving decisions on what is constitutional to be a political question in itself.

mchanson• 3 years ago

I would prefer a government that investigates all the bad acts of LEOs.

I would prefer a government that investigates the rich.

I would prefer a government that investigates wage theft.

_heimdall2• 3 years ago

I would prefer a government that enforces the law blindly. Our legal system is fundamentally broken as long as we consider wealth, career, politics, personal connections, etc before filing charges and trying a case.

matheusmoreira• 3 years ago

It will be fine so long as there's no corruption. But if there's even a hint that one group is getting persecuted...

candiddevmike2• 3 years ago

Wasn't that supposed to be the fourth estate?

ssalka• 3 years ago

What's hilarious is that in an ideal world, the FBI is exactly the organization that should be doing this. Two of the bureau's top priorities are 1) Combat public corruption at all levels, and 2) Protect civil rights

_heimdall2• 3 years ago

We could get really far simply by changing the incentives of our legal system.

sneak• 3 years ago

Law enforcement in the US exists to enforce the existing social order (including that of class and race), not to pursue justice or universally/fairly enforce laws. This isn’t some conspiracy theory, but is well documented in the history of policing in the USA, both at the local and federal level.

It is a tool used by the ownership class (via selective enforcement) to legally mitigate threats to their social, economic, and political dominance.

This is why minorities are disproportionately represented in prison for disproportionately minor crimes, and why rich white people doing the same drugs don’t generally get in any trouble.

This is also why police, the essential enforcers in the system, are generally permitted to commit as much minor crime (except against members of the ownership class) as they wish. The system falls down without their cooperation.

Once you see it, you can’t unsee it.

datadrivenangel2• 3 years ago

"A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval"

I hope that we get that de facto ban. It would be good for society.

progne• 3 years ago

The fourth amendment is a de jure ban, and shouldn't a de jure ban be a de facto ban for law enforcement? The lawful way to make it de facto is to make it de jure first by repealing that pesky amendment.

datadrivenangel2• 3 years ago

De jure, de jure is de jure, de facto, de jure is not de facto?

To absolutely mangle paraphrasing yogi berra's quote about the difference between theory and practice.

tehjoker• 3 years ago

The US government flouts the constitution constantly, for example the UN charter which according to the constitution, treaties are part of the supreme law of the land. It's a security state designed to squelch popular resistance to a global imperial project (that is currently floundering).

nyc_data_geek12• 3 years ago

This is literally what warrants and probable cause are for. Really shocking degree of impunity on display that he would have the balls to say this out loud, in public, on the record.

candiddevmike2• 3 years ago

Who watches the FBI director?

quadcore• 3 years ago

That is very calculated I think. If people let him get away with saying it, that's it, it's done, it's banalized, it's normal.

That's a technique often used by toxic people.

(Disclaimer: im no american)

smegsicle• 3 years ago

watch as mass shootings go down when they have a harder time profiling patsies

moehm• 3 years ago

'No way to prevent this,' says only nation where this regularly happens.

squirrel6• 3 years ago

Agree. It shocks me that anyone would stand against this— there’s so much anti Patriot Act rhetoric, this is one of the only ways to make a step toward achieving justice in the situation

SV_BubbleTime7• 3 years ago

It’s a good thing an organization like this doesn’t have the power to act politically.

AnimalMuppet• 3 years ago

/s, I presume...

smeeth• 3 years ago

A clarification, because I'm seeing a lot of misunderstanding:

This is about whether or not the FBI needs a warrant to see information that was already collected legally by another part of the gov't.

This is not about whether or not the gov't can collect this specific data in the first place, everyone involved seems to agree they do.

jfengel4• 3 years ago

Correct. There is a strong dividing line between those two organizations, resulting from some very bad misbehavior by the FBI and CIA in the 1950s and 60s. The Foreign Intelligence Surveillance Act was set up to allow some agencies to collect information on non-Americans using techniques they'd never allow on citizens, while other agencies can use a more restricted set of techniques on Americans.

After 9/11 they breached that somewhat, because of a (not entirely well-founded) belief that the separation kept them from preventing the attack.

Those are the two ends of the spectrum being debated here: harassing Martin Luther King on the one side, and 9/11 on the other. No compromise is going to make everybody happy. In fact, no matter what, it's going to make everybody mad.

landemva• 3 years ago

How is 9/11 on the other side of harassing MLK? FBI had been told before 9/11 about non-citizens paying with cash at flights schools for heavy aircraft simulator time.

https://www.cbsnews.com/news/fbi-was-warned-about-flight-sch...

dylan604• 3 years ago

The people having the data collected are also involved and I doubt they agree

ssnistfajen2• 3 years ago

but but gais hear me out, TikTok is the REAL problem here! /s

fnordfnordfnord• 3 years ago

I don't believe it. I've been scolded so many times, including by users here, that the FBI would never. There must be some misunderstanding!

wolverine876• 3 years ago

“A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have,”

The serious issue for IT professionals is, as always, to find a solution that meets all needs: Efficiency (resource consumption), privacy, legality.

I don't know enough of the requirements, but a couple possibilities:

* Automate warrant submissions (obviously).

* Provide warrantless views of the data that preserve privacy and allow rapid review. For example, hide all proper nouns and only allow a GPT and intelligence agent to review it. If something is found, it can be passed to law enforcement for warrant requests.

Again, I really don't know nearly enough about the requirements, process, etc., but it would be interesting to hear from someone who does.

FBI director admits they rarely have probable cause for using NSA collections

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