Warrantless wiretaps? Congress votes yes

http://arstechnica.com/tech-policy/2012/12/warrantless-wiretaps-congress-votes-yes/

by zoowar • 14 years ago

180 99 14 years ago

arstechnica.com

toki52• 14 years ago

I'm confused by the title of this article. Do FISA warrants not count as warrants?

dguido2• 14 years ago

Ah, exactly! I posted this same question yesterday.

https://news.ycombinator.com/item?id=4976441

mtgx3• 14 years ago

Ron Wyden explained the "general warrants" in FISA:

http://www.rawstory.com/rs/2012/12/27/sen-wyden-fisas-genera...

It's not like normal warrants. It's warrant that is in effect for a year and allows them to spy on everyone for that whole year. But of course they will get it renewed every year. The idea of a "FISA Court" is a joke. The only reason they even have that extra step is to say they "go through Court". But it's just like not having it at all, because everything they are doing gets approved. If FISA was a proper law, the warrant should be asked from any regular Court.

toki52• 14 years ago

It's still a warrant, though, reviewed by eleven (?) judges, who are appointed for non-repeating terms.

I definitely agree with Wyden's proposal -- that there be more transparency in this process, even if it's heavily redacted. Even he and his colleagues recognized and respected the need for keeping at least some amount of secrecy with cases like these, where they can't be brought to a regular (read: public) court. I found his suggestions to be sane and level-headed, and I think that if it hadn't been left to the last minute they'd have had a much better chance.

What I do not find sane is articles like this that declare that there aren't warrants involved, that there isn't probable cause. I think that that's misleading and sensationalist.

dguido2• 14 years ago

Do you have any idea the kind of crazy non-sense that gets a warrant issued in "regular" courts? I'm happier leaving complicated decisions about intelligence to a group of experts who specialize in the field.

tptacek27• 14 years ago

This comparison is flatly hyperbolic. The general warrants the framers prohibited were a tool of harassment that essentially allowed agents of the British government to tear apart the homes and belongings of anyone they saw fit. You could be stopped, detained, intrusively searched, have soldiers enter your house and dump the contents of your drawers and cabinets on the floor.

The similarity he's trying to invoke is between the probable cause requirement of a criminal warrant and the lack of any targeting whatsoever in a general warrant. It's obviously true that a FISA warrant is less targeted than a domestic criminal warrant. But FISA warrants also also much less intrusive than a criminal warrant, and, like airport searches (which are entirely warrantless and nonetheless constitutional under administrative search), serve a safety goal instead of a criminal evidence collection purpose.

FISA warrants also are targeted, unlike general warrants. The FISA court exists to verify that actual investigations are being served by the warrants. It's not hard to see why FISA warrants are rarely rejected: the government is not actually in the habit of randomly surveilling people outside of actual investigations.

Heading a series of unproductive responses off at the pass: seeing the logic of the "yea" votes in the Senate on this issue does not mean that I agree with them.

justinschuh7• 14 years ago

This is where people get really confused, and most of what you read mis-frames it badly. The way US law has always worked is that our intelligence services and military can legally collect any and all communications between non US persons (ie. not a citizen, resident, visa holder, or company incorporated in the US).

Now, this gets complicated if you have communication between two non US persons transiting a system in the US. Under the old FISA law there was no provision for handling this case, and there was a very credible legal argument that unrestricted collection of such communication was entirely fine under existing laws and presidential directives. So, after 9/11 the Bush administration decided to use that argument to compel various US telecom providers to grant access to these non US communications. (They did other stuff too, but that's the big one that the FISA law changed.)

People legitimately got freaked out at various things when the FISA situation went broadly public. And it really is a bad idea for the government to be able to press companies into providing foreign intelligence collection capability with no oversight. However, the intelligence community had actually been complaining about exactly this situation for decades earlier, because their conservative approach (prior to 9/11) had been to push everything through the FISA courts (which issued an order intended for targeting US persons). So, members of congress already had a bill mostly written to reform FISA for this case of non US person communications transiting US systems. That's the basis of the current FISA law.

So, that's where this whole warrant-less wiretapping thing comes from. The executive branch can now authorize collection for up to one year if various criteria and oversight are met, including a reasonable expectation that the collection will not contain any communications between US persons. And that authorization has the power of a warrant in that it can be used to compel service providers and telecoms to comply. As always, if all parties are non US persons and the systems used are outside the US then FISA doesn't apply at all, and the targets are simply fair game.

mtgx3• 14 years ago

I recommend reading Greenwald's long article on this. I think he explains better than anyone else the absurdity of the situation and the shamelessness of the senators who voted for FISA and against the amendments to it:

http://www.guardian.co.uk/commentisfree/2012/dec/28/fisa-fei...

tptacek27• 14 years ago

If you want to have your biases confirmed, Greenwald is a very effective mechanism for doing that.

angersock4• 14 years ago

Out of curiosity, what's your honest preference in the situation? Where do you come down?

foobarqux• 14 years ago

I want the truth about the topic, which sources are more accurate?

And what type of biases does Greenwald perpetuate?

justinschuh7• 14 years ago

The downmods are undeserved. Knowing a bit about this subject, I find Greenwald's coverage to be some of the worst. People need to remember that he's not a journalist and his goal is not to inform. He's a pundit making an argument, and his arguments are often contrary to the facts.

ISL• 14 years ago

Has FISA-authorized surveillance been found constitutional?

tptacek27• 14 years ago

It's never come before SCOTUS directly (a technical question about whether lawyers can speculatively sue for information about specific cases was heard in October and will be decided next year) but has survived in lower courts.

I'm obviously not an expert but the odds seem very high that warrantless electronic surveillance of specific foreign targets will be found constitutional; warrantless searches of Americans are constitutional in many circumstances.

It's important to remember that "constitutional" is not a synonym for "correct". There's a lot of things we could do that are constitutional but ridiculous.

Late edit:

Note that while it's hard to find FISA case law, it's not as hard to find case law on the principles animating it. Here's SCOTUS, US v US District Court 1972:

    Moreover, we do not hold that the same type of standards and
    procedures prescribed by Title III are necessarily applicable to this
    case. We recognize that domestic security surveillance may involve
    different policy and practical considerations from the surveillance of
    "ordinary crime." The gathering of security intelligence is often long
    range and involves the interrelation of various sources and types of
    information. The exact targets of such surveillance may be more
    difficult to identify than in surveillance operations against many
    types of crime specified in Title III. Often, too, the emphasis of
    domestic intelligence gathering is on the prevention of unlawful
    activity or the enhancement of the Government's preparedness for some
    possible future crisis or emergency. Thus, the focus of domestic
    surveillance may be less precise than that directed against more
    conventional types of crime.

mtgx3• 14 years ago

No, because it has been very hard to even get a lawsuit against it accepted, either because NSA or the White House tried to dismiss the cases because they don't have standing, because they can't prove NSA is spying on them, or by using the state secrets privilege.

EFF has one case against it now:

https://www.eff.org/deeplinks/2012/10/eff-government-state-s...

notatoad2• 14 years ago

It really scares me that the only issues able to find bipartisan support in congress seem to be the bills that benefit nobody. The republicans and democrats can never agree when there is good to be done, but when they get the chance to fuck over the average citizen they're full of cooperation.

tptacek27• 14 years ago

It's hard to support a rational argument that FISA mechanisms benefit "nobody". FISA's supporters in DHS and DOJ and DOD will point lawmakers to a litany of cases where FISA-backed surveillance saved lives. The issue is whether the cost of that surveillance is worth the increased safety.

notatoad2• 14 years ago

FISA isn't even about increased surveillance. If the DHS thinks they need more surveillance to do their job, i trust them on that. FISA is about a lack of oversight and due process on the surveillance. In the litany of cases where FISA-backed surveillance saves lives, that same surveillance could have been performed with proper oversight and regulation, rather than what basically amounts to the whim of an investigator. The absence of regulation in this instance benefits nobody (except those who would abuse it).

guelo3• 14 years ago

> a litany of cases where FISA-backed surveillance saved lives

Bullshit.

charonn02• 14 years ago

Sen. Feinstein, who I've voted for since I was 18, just lost a huge chunk of the respect I had for her.

tptacek27• 14 years ago

Huh? Didn't Feinstein speak on the floor of the Senate 4 years ago in favor of the exact bill they just renewed?

charonn02• 14 years ago

It's either Feinstein or the GOP nominee (third parties need not apply to Congress.) If the GOP were to nominate someone I agreed with more than her, I'd vote for them. They haven't, so I haven't. The lesser of two evils, while still evil, is at least less so.

latimer• 14 years ago

This isn't anything new. Feinstein was a supporter of SOPA/PIPA (Boxer as well)

maeon3• 14 years ago

America is going to be destroyed by these ticks in government, these are the hyopthermia pains before the coming realization that we will not recover and be frozen to suffer death by slow freezing, this will take 20 years, but our great nation will fall.

As hackers we must prepare to plant the seed for a superior nation when we are overrun by communists, socialists, corruption in every layer of government and business, and bleed from so many ticks and parasites that the collective dies from an unexpected shock to our system.

this is our writing on the wall. you have been measured and found wanting.

angersock4• 14 years ago

One could dryly observe that it would appear to be the capitalists, lenders, investors, and bankers that've caused this nation the most upset, one could.

crusso• 14 years ago

The capitalists wouldn't be able to do much to dent the economy, much less the supporting fabric of the nation without their collusion with the government.

If you don't realize the government's more than sizable role in the most recent catastrophe, you haven't been paying attention.

enraged_camel• 14 years ago

Surveillance is neither communist or socialist in nature. It is authoritarian, which has more to do with fascism than anything else.

dllthomas2• 14 years ago

Not that plenty of "communist" or "socialist" regimes haven't been awfully authoritarian...

unimpressive• 14 years ago

If you really believed that, you wouldn't have posted it in the largest hypertext system on earth, that is being mirrored and cached by a dozen other entities. Some of which are virtually immortal. (See: Google.)

Without anonymity anyway.

tptacek27• 14 years ago

You'd want to know but could not easily learn from this article that the wiretaps in question here pertain to foreign intelligence surveillance (ie, the government's authorization to spy on foreign entities).

You'd probably also want to know that the hotbutton issue actually at play in this authorization is programmatic surveillance, which is what it sounds like: automated collection and analysis of intercepts. The statutory problem with programmatic intercepts is not that they're unlawful, but rather that FISA ss written required individual suspicion for every captured communication, which is logistically intractable for this application.

The law as written limits the application of programmatic surveillance authorizations:

    An acquisition authorized under subsection (a)–
     
    (1) may not intentionally target any person known at the time of
    acquisition to be located in the United States;
     
    (2) may not intentionally target a person reasonably believed to be
    located outside the United States if the purpose of such acquisition
    is to target a particular, known person reasonably believed to be in
    the United States;
     
    (3) may not intentionally target a United States person reasonably
    believed to be located outside the United States;
     
    (4) may not intentionally acquire any communication as to which the
    sender and all intended recipients are known at the time of the
    acquisition to be located in the United States; and
     
    (5) shall be conducted in a manner consistent with the fourth
    amendment to the Constitution of the United States.

None of these points are to suggest that Wyden is wrong to be seeking accountability for FISA warrants or that nobody should be concerned about foreign surveillance or that there aren't real concerns that foreign surveillance is capturing lots of domestic communication.

uptown• 14 years ago

http://www.youtube.com/watch?v=oYNXVgYhPOc

"in the United States"

What about "outside the United States". If all traffic is routed elsewhere, would that still count? I'm no fan of Hank Johnson - but I wish he'd amended his questions to get an on-the-record statement about whether communications are ever routing outside the country to circumvent wiretap laws.

tptacek27• 14 years ago

"may not intentionally target a United States person reasonably believed to be located outside the United States"

jellicle4• 14 years ago

And not one of those limits prohibits the NSA from copying all electronic communications that enter or leave the United States and reading through them all. Actually none of them prohibit the NSA from even reading wholly domestic communications.

Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever to verify they are being followed and Congress has vowed to immunize from liability everyone who violates them.

Americans: your government is reading your email. There are no qualifications on that statement. Most especially if you are a dissident of any sort.

Just as a reminder, FISA was passed because in the early 1970's, a Senatorial investigation showed that the FBI and NSA were illegally wiretapping the fuck out of law-abiding peace groups and civil rights organizations. It is certain that this is occurring today, again.

AndrewKemendo2• 14 years ago

>Nor do the limits themselves have any effect whatsoever, since there is no oversight whatsoever

What kind of specific oversight would you be satisfied with?

There are after all FISA Courts explicitly for the oversight purpose: http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...

samstave• 14 years ago

Just out of curiosity, assume one were to "wiretap" communications of any US government agency, what laws would be used against this? If they can do warrantless wiretaps, what differentiates their actions from anothers?

If they have no legal foundation for their actions, why should another's actions be illegal for the same exact thing?

miami-dade• 14 years ago

The moral of the following retail pricing story is that it's profoundly difficult to assess the value of any product in a vacuum. Subjectively evaluating government acts presents the same difficulties as evaluating products; in both cases display makes all the difference in the world.

For the story, imagine you're a plastic surgeon in Los Angeles, and you want to buy your wife a fur coat this Christmas.

To be expedient, you visit Hunky Dory Coat Factory on Rodeo Drive. A delightful antique display and friendly faces greet you upon entry. Decorative plants, backlit with colorful lights, are beautifully positioned next to a grandiose marble checkout desk. You make your way forward and an unobtrusive attendant smiles kindly in your direction. Dark mahogany wooden floors span the interior, glimmering in the light as you see the coat you came for. As you inch closer, you know it's the one, but you can't help noticing every coat at Hunky Dory costs over $5,000. You pick up your wife's desired coat despite much apprehension. You go straight for the price tag, slowly turn it over, and incredibly, it's only $1000. "What a tremendous deal," you think to yourself.

Now take a look at what happens if we repeat the above at Dilapidated Coat Factory.

Dilapidated Coats is located in a crummy old warehouse with high ceilings and noisy industrial fans. The coats hang from a dusty rack on the opposite wall with no organization. The floors are unfinished concrete and the walls are chipping paint. As you move closer, you notice that most coats on the rack cost under $50. But to your surprise, you come across the perfect fur coat for your wife. You inspect the price tag, and you're shocked to find it's $1000. You leave disgusted.

The point is, when the product's environment changes, the price you expect to pay changes too. Perceived value is driven by environmental factors. Display makes all the difference.

It follows that how you perceive isolated US government actions greatly depends on whether you favor the state of America's economic and political affairs. Just like Hunky Dory's extravagant display made a $1,000 coat look like a deal next to $5,000 coats, if you think America is truly incapable of repeating history, you may think all American laws are passed in good faith, or rationalize all government efforts away as positive.

Surveillance, being a precursor to force, is at least worthy of extra scrutiny.

First and foremost, the U.S. Constitution was expressly designed to limit government power. By this logic, in order for the US Government to make good faith interpretations to the Constitution, legislative measures must err on the side of limiting government power, surveillance measures included. Under no circumstances should any new measure conceivably facilitate tyranny, nor should the measure employ clever word games to enable such a scenario.

If you can entertain the notion that the American government has been corrupted by money and outside influence, and that the US Dollar isn't infallible, you may start to consider the possibility of a scenario where surveillance measures like this one are used to restrict freedoms, and increase government power during stressful times in order to perpetuate failed systems. Therefore it matters greatly whether the political and economic environment looks Dilapidated to you. You're free to think it's Hunky Dory. That is your choice.

Assuming the US government is acting in its own interest, even if it were OK to monitor international communications for increased security, it doesn't compel the government to codify rules into law with hedge words like "intentionally". To think, the subversion of your Constitutional rights now hinges upon whether surveillance qualifies as "intentional" according to a legal scholar's interpretation. The use of the word "intentional" here shares the same audacity as the NSA's classifying of American communications as "intercepted" vs. "stored". Either way the NSA gets to summon your records on demand, so who cares whether it's technically "intercepted". Just the same, who cares whether surveillance is intentional or not? This bill appears in effect legalizes dragnet surveillance over the American populace. According to William Binney, surveillance is already done dragnet style across the entire US populace, so it's not like they're ever going to "Intentionally" surveil most American citizens anyway. They do it by default, they do it today, but now they get to point at this word "Intentionally", and claim state secrets privileges while strong-arming the populace out of their Constitutional rights.

I urge you to watch billionaire investor Dr. Michael J. Burry's commencement address at the 2012 UCLA Department of Economics [1].

[1] https://www.youtube.com/watch?v=1CLhqjOzoyE

alisnic• 14 years ago

This will sound silly, but after watching The Wire, I am tempted to support

tptacek27• 14 years ago

FISA warrants would not help McNulty at all; they cannot be used to target people who reside in America.

utnick• 14 years ago

This is not true, FISA warrants certainly target people who reside in America. That is the whole point of them. If Bob in afghanistan is talking to Sue in pakistan, no warrant is needed. The USA can spy on that all day. They only need to go through the FISA warrant process when the communication is in America.

Here is a good write up with details: http://belfercenter.ksg.harvard.edu/publication/19156/electr...

guelo3• 14 years ago

For those in here defending no oversight of FISA, note that the 2008 FISA revision included retroactive immunity for telecoms that had already been caught illegally monitoring Americans. Since then the program has been operating in complete secrecy, though there have been hints by Senators privy to classified information that alarming levels of spying on ordinary Americans is taking place. There have also been periodic leaks and whistle blowers hinting at massive data gathering operations. I think there is a big likelihood that ALL of our private electronic communications are being illegally monitored. The complete opposition to congressional oversight is another big hint that illegal activity is going on.

tptacek27• 14 years ago

No, it immunized telcos for assistance in surveillance under the color of the 2008 FISA Amendments act.

JensenDied• 14 years ago

Retroactively for what was illegal before the act was passed.

urza• 14 years ago

Jacob Appelbaum 29C3 Keynote: Not My Department

http://youtu.be/QNsePZj_Yks

safeaim• 14 years ago

I sure hope this video gets more views, as this is one of the most important privacy talks this year.

linuxhansl• 14 years ago

Sigh. Some things will never change. Surveillance will only increase, slowly. And like frogs in water that is slowly warmed we'll just all go along with it, until we're nicely cooked.

* There is no terrorist lurking under every rock and behind every corner.

* 9-11 will repeat itself, because the context is changed now. Passengers can no longer assume that they will get away alive by complying, so they will fight back.

* These things do not have to be carried out in secrecy.

* These measures are ineffective anyway. Anybody who is able to pull of planting an impactful bomb somewhere in the US can most definitely also figure out how to securely communicate or how to hide a communication.

Edit: Formatting

eschulte• 14 years ago

Here is a more complete (but still short) article on the same topic [1], and here are the records of the votes for the passage of this bill, and the rejection of the three proposed ammendments (search for "00236" in the table) [2]. The second link is useful if you want to see how your representative voted.

[1] http://www.nytimes.com/2012/12/29/us/politics/senate-votes-t...

[2] http://www.senate.gov/legislative/LIS/roll_call_lists/vote_m...

Warrantless wiretaps? Congress votes yes

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