In Secret, Court Vastly Broadens Powers of N.S.A.

http://www.nytimes.com/2013/07/07/us/in-secret-court-vastly-broadens-powers-of-nsa.html

by bcn • 13 years ago

329 87 13 years ago

jdp23• 13 years ago

Excellent reporting by Eric Lichtblau based on "current and former officials familiar with the court’s classified decisions". One key point:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

lisper2• 13 years ago

Funny, I must have missed the part of the Fourth Amendment that carves out an exception for "special needs" or "overriding public danger." Hm, let's see:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Nope, I still don't see it.

graycat6• 13 years ago

Nope, I still don't see it.

Your problem is understandable! An ordinary citizen can't be expected to "see it"!

Seeing it takes special qualifications, years and years of experience, especially at the highest levels of government, many deep, secret arguments and considerations, etc. Only such very, very special people can be expected to "see it". In particular, those very, very special people can read the same words in the Fourth Amendment you and I can read but, unlike you and I, know that they, such very, very special people, are understanding the true meaning of those words, true meaning, I'm sorry to say, no insult intended, is just beyond ordinary people such as you and I.

But now aren't you glad that our country, your privacy, and the Fourth Amendment are being so well cared for by such very, very special people, people who can understand things, e.g., the true meaning of the Fourth Amendment, you and I can never "see"?

Uh, oops, where did it put that extra airline barf bag???

DannyBee3• 13 years ago

The fourth amendment also doesn't have an exclusionary rule in its text

IE no part of it says if the police conduct an illegal search, they can't use that evidence against you.

Yet most people seem to get up in arms when Scalia/Thomas/whoever says that line of cases should be overruled, and that it's up to congress to pass laws to deal with police conduct

IanCal• 13 years ago

Is this an interpretation of the word "unreasonable"? You're only protected against unreasonable searches and seizures, but if they deem collecting this data to be 'reasonable' then it wouldn't apply, if I'm reading it right. That said, I don't know much about the constitution (I'm from England, pip pip).

nknighthb2• 13 years ago

It's obscene. Skinner (the railway case) and its brethren are concerned with either employees in certain sensitive jobs, and school children participating voluntary activities. Some of them go too far, in my opinion, but none can be read as justification for this kind of blanket operation covering the entire populace.

leoc• 13 years ago

But this isn't news. It's apparently been public knowledge since 2009, when the redacted Yahoo! ruling was released http://www.nytimes.com/2013/06/14/technology/secret-court-ru... . That ruling (even the redacted version which was relased) clearly lays out and upholds the concept of the "special needs"-based foreign-intelligence exception to the US' Fourth Amendment:

2 . The Foreign Intelligence Exception . The recurrent theme permeating the petitioner's arguments is the notion that there is no foreign intelligence exception to the Fourth Amendment's Warrant Clause. 6 The FISC rejected this notion, positing that our decision in In re Sealed Case confirmed the existence of a foreign intelligence exception to the warrant requirement.

This ruling isn't secret, it's just been hiding in plain sight. Even after the NYT reported the Yahoo! connection to the verdict in an article which directly linked the ruling PDF, it was still apparently impossible to get people to read the ruling and see what it says about the Fourth Amendment for themselves. https://news.ycombinator.com/item?id=5923606

D9u• 13 years ago

There can be no "consent of the governed" when "We the People" are unaware of the actions which our elected, as well as non-elected, representatives perpetrate in Our name.

___Edit__

Yes, "unaware," as in "We the People" are perpetually "unaware" of what goes on in secret court proceedings.

Daniel_Newby6• 13 years ago

Unaware? Mass surveillance has been going on for a long time, and everybody who cared to learn knew the immense scope. This is not a news revelation, it is a media campaign by parties who need something to talk about.

Consent of the governed is the problem. The U.S. Senate is directly elected, and the public paranoia wanted these broad pseudo-security measures.

Speaking of consent of the governed, why is the media saturated by Snowden-as-Bieber celebrity stories, and not election rigging by the IRS? Would you like to learn more?

krapp3• 13 years ago

why is the media saturated by Snowden-as-Bieber celebrity stories, and not election rigging by the IRS?

Let me guess, did your group's 501(c)(4) paperwork get held up by a few weeks?

jivatmanx3• 13 years ago

Who could forget the calm, thorough, logical debate about liberty vs. security that took place in the media and congress, when these programs were passed?

rubbingalcohol• 13 years ago

^ says the guy who works for ICx Nomadics, a Homeland Security contractor.

http://investing.businessweek.com/research/stocks/private/sn...

alayne• 13 years ago

Just because it isn't totally new, doesn't make it a non-issue.

Blaming things on a stupid electorate just sounds like more justification of a totalitarian regime. Could it be possible that people need more information about what is going on in order to make better decisions? Let's err on the side of democracy please.

PavlovsCat• 13 years ago

So the people asked for something to be done without their knowledge? Uhhh.

why is the media saturated by Snowden-as-Bieber celebrity stories, and not election rigging by the IRS?

Why is it not saturated with mugshots of the people dying of starvation and thirst every minute? And why are the stories that matter, when they do get discussed, trolled with that argument? With that tool for tools, all you need is more than one issue that matters, and you can constantly bounce back and forth like a real champ.

alan_cx2• 13 years ago

Oh hell, this again? No you did not know. We did not know. We suspected. Only now, do any of us, not on the inside know.

Besides, if we accepted your argument, then replacing the word "surveillance" with the word "slavery" and we'd still have slaves.

I dont know if its just me, but public ignorance or consent is not an excuse not to behave well, or do the right thing. Sometimes, often even, the majority are simply wrong.

bcn• 13 years ago

Here's a zinger:

The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

wavefunction• 13 years ago

A pond of circular reasoning, built on sandy foundations of quid pro quo and legal memos hidden from the sunlight of day it seems.

cinquemb• 13 years ago

And of course it is only fitting that access to the information collected is all for sale to the Carlyle Groups of the world and their portfolio companies like BAH.

nitrogen• 13 years ago

drivebyacct2: your last few posts are dead. No idea what could have happened; you've been here a while and have twice the karma I do.

dclowd9901• 13 years ago

"Fishing" being the operative word. I'd love to understand the internal reasoning these judges have embraced to allow this to happen (as the court is the last defender of the constitution), but I fear it's little more than unchecked power/stupidity.

niels_olson2• 13 years ago

What 11 judges nominated by Roberts, 10 of them appointed by Republican presidents, and anyone thinks they'll tell DoD no? Surely you jest. They're not a rubber stamp. They're cheerleaders.

untog5• 13 years ago

"IM conversations aren't like mailed letters- when they're received, they disappear forever. So it's vitally important that we gather all the information that we can before it disappears, so that we can later use it in intelligence efforts"

That's probably the start of how I'd sell it. Exploit the judges (probable) lack of technical understanding, prioritise the urgency involved. Ta-da!

pvnick2• 13 years ago

I'm curious to see how this fits with the coming leak that the NSA is collecting and storing all cell phone call contents (not just metadata) [1].

[1] http://www.huffingtonpost.com/2013/06/29/glenn-greenwald-nsa... - read: "it means they're storing every call and have the capability to listen to them at any time"

andreyf• 13 years ago

What do you mean by "how this fits"?

untog5• 13 years ago

I'm going to take that article with a pinch of salt until Greenwald shows the evidence. It's entirely possible that a phone tapping technology + the vast new NSA data centre = "the ability to tap a billion calls a day". How many do they actually tap is the operative question here.

The original leaks were compromised by a lack of technical understanding stemming from the presentation slides we all saw, so I'll wait and see what he is basing this claim on first.

grey-area• 13 years ago

Well, the interesting thing about this justification for storing metadata is that if you accept it, there's absolutely no reason it shouldn't apply to contents too. If you're allowed to store data indefinitely because only access to the data should be controlled, and you trust politicians and intelligence services not to abuse that power, why not do the same with all data? If you have control over access and the data will only be used in approved ways, why not just store everything and decide later what you can access?

Metadata is just as dangerous as content, and frankly I think the only reason content hasn't been stored is that it is a difficult technical challenge, and they don't yet have the capacity. Indeed, we've seen proof that the UK is already doing this for as much data as they can manage, without the permission of any of the US citizens whose data they collect wholesale in transit and send back to the NSA.

The massive danger here, which Snowden pointed out, is that if you store this information, policies can easily change in future to allow access (as they have done already with metadata), and at that point nothing can be done, because the information is already available, just waiting to be used, and going back decades. By allowing collection, you're trusting not just the current politicians, but every conceivable politician and intelligence agency over the next few decades or centuries, and all the foreign intelligence agencies and politicians that the information is shared with. These policies are of course secret, so we'd have no idea if they have changed or what they have started to use.

You also have an exponential growth of classified information which you have to try to keep protected, even as you expand the number of people managing it into the hundreds of thousands to deal with the ever-increasing technical demands of storing and cataloguing it. That's going to lead to leaks to the public and also to foreign agencies, and if the ambition is to store all signals eventually we'd get to a point where no-one has any privacy as it is impossible to keep a store of that size secret and contained.

The only answer I personally find acceptable and practical is to forbid storage of the information in the first place, restrict spying to clearly defined targets with proper judicial oversight of individual cases, and limit the time it is stored.

wdewind• 13 years ago

David Simon, creator of The Wire, has written extensively about this starting with this post: http://davidsimon.com/we-are-shocked-shocked/

It is well worth a read for an extremely well argued, and informed, opinion from the other side.

mcphilip• 13 years ago

It's worth noting that this article by David Simon was written on June 7th, purely in reaction to the leaked information about Verizon metadata being collected. As more information about PRISM became available, Simon acknowledge that the leaks did point to something more serious than he had acknowledged in his original post [1].

With that context in mind, I still think it's worth reading Simon's original post that you linked to. He's a very articulate writer who has clearly shown he's no puppet of the establishment through his work on shows like The Wire.

[1]http://davidsimon.com/nsa-and-fisa-commentary-calling-it/

AnthonyMouse• 13 years ago

His basic point seems to be that the government should be allowed to do it as long as we don't hear about any specific abuses. There are two problems. The first is the one he points out: when everything is classified and anyone who notifies the public is subject to the treatment given to Manning and Snowden, even finding out about the abuses much less holding those responsible accountable is extraordinarily difficult. The second problem is that the really bad abuses of an accumulation of power like this are so bad that we can't just wait until they happen before we do anything about it.

He also says some questionable stuff. Like this:

We asked for this. We did so because we measured the reach and possible overreach of law enforcement against the risks of terrorism and made a conscious choice.

Everyone in Congress who read the Patriot Act before voting on it voted against it. So no, we didn't. We had a gut reaction to a tragedy, somebody pulled a defense contractor wish list out of a drawer and they passed it in a moment of sorrow and anger. The country is only now starting to reach the point that we can have a rational conversation about anti-terrorism without the pain of a recent tragedy allowing self-interested warmongers to goad us into an overreaction, and it's time that we seriously reevaluate what we allow the government to do on our behalf.

And I'm reminded of what John Oliver said hosting the Daily Show when all of this came out: "I think you're misunderstanding the perceived problem here, Mr. President. No one is saying you broke any laws. We're just saying it's a little bit weird that you didn't have to."

jamesjporter• 13 years ago

There are also a number of extenuating differences between his Baltimore example and PRISM, the most critical being that the recording of data in Baltimore was limited both in time and scope by the case it was being collected for. Presumably once the investigators either caught the culprit or gave up on doing so, the payphone taps were removed. They also were only allowed to tap phones they thought might be relevant to that particular investigation. The war on terrorism used to justify mass wiretapping, on the other hand, will literally go on forever and relevant data could be anywhere. Terrorism is not an enemy that can plausibly be captured or defeated (like a drug dealer or the Nazis), nor is it localized to a few city blocks or ISPs or websites, therefore there is no limit on how long this data will need to be collected for or what sort of data might be required.

I'm all for brief and limited surveillance authorized by warrants tied to a specific case (e.g. his Baltimore example), what I find unacceptable about PRISM is exactly the thing Simon glosses over as irrelevant, its scale: virtually unlimited in both duration and scope.

SapphireSun• 13 years ago

I also disagree with his premise that the data is too big for innocents to be caught in a dragnet. Has he never seen a heat map or a histogram? There are ways to characterize big data that can lead to false positives in the analysis.

Additionally, an easy abuse of the system would be to look for people doing embarrassing things and link it to those people for later political blackmail or other neutralization. We don't have evidence that this has occurred, but I think it was indicated that the audit trails and other civil liberties protections were not implemented well in these systems.

gwu782• 13 years ago

"A common misconception is that an analyst must review the content of communications between people in order to establish a link between them. In fact, an NSA analyst would regard a person's association and the persistence of that association with other persons as being of greater relevance to a determination of whether the person is a member of a Community of Interest than the actual words used in a series of communcations." - J. Kirk Wiebe, former NSA employee in his sworn Declaration in Jewel v. NSA, September 28, 2012 https://www.eff.org/sites/default/files/filenode/wiebedeclar...

I think people fail to realise that the "metadata" would actually be the "damning evidence" that innocent citizens should fear, not the content of their communications. It's like a nationwide pen register. But no one needs to be identified as a suspect (that deserves to have her call records inspected). Everyone is a suspect, by default. They have all call records for every American. Crazy.

niels_olson2• 13 years ago

reasons = ['I\'m hungry', 'boss is hungry', 'wife is hungry']

The people at the analyst level making these decisions are suffering under the strain of increasing economic disparity just as much as you and I. And if fishing returns the occasional fish, that will relieve their distress, however temporarily.

alan_cx2• 13 years ago

Reason? Yeah, that's the power of the bogey man word "terror". So, no matter what, the government have that as a get out of jail free card. What ever the situation, they will always cite "terror" as an excuse for every and any excess.

nateabele• 13 years ago

That jumped out at me as well. I think the most amazing thing is how arbitrary this all is. The court tries to make it appear is if they have 'guiding principles', but it strikes me much more as 'patterns that appear to hold in retrospect while we make this up as we go'.

oceanstone• 13 years ago

The FISA courts need to be dissolved, and replaced with something that is visible to the public.

lazyjones• 13 years ago

Secret courts, secret laws, secret prisons - what's your conclusion? Mine is: this is a secret dictatorship.

graycat6• 13 years ago

Well, if not quite yet, then with, say, another president like Nixon ....

Sorry 'bout that, but my conclusion was that, yes, he was a "crook".

sixothree• 13 years ago

Judging from the tapes he spent more time trying to destroy his political enemies than actually governing.

pivnicek2• 13 years ago

We are open about our secrecy.

"It is transparent, that’s why we set up the FISA court." - Barack Obama

drawkbox• 13 years ago

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings." -- John F. Kennedy

foobarbazqux• 13 years ago

The motivation here is security through obscurity, right?

graycat6• 13 years ago

Partly it's security theater.

untog5• 13 years ago

I don't think it's arguable that collecting every piece of data on every citizen could be a benefit to national security. It's just the associated cost to privacy that makes it utterly horrendous.

shmerl• 13 years ago

No. Motivation is simple as before - thirst for power.

thbtbtbtbtb• 13 years ago

Imagine you work at the NSA. Your boss comes through the door and says, "Hey, we just got approval to store the communications of everyone everywhere. We need the be able to cite credible suspicion before we can look at Americans' communications, though. What can you do for me?"

"Wait, we can intercept and store all the communications?"

"Yep, all of them."

"Because they might include ones that present a threat?"

"Yeah, that's it."

"OK. Well, what if we could narrow it down? What if we implemented a system to only scrutinize communications we thought were likely to be threats. That would be better, right?"

"Where are you going with this?"

"Well, we're already collecting everything, right? What if we went just a teensy bit further? What if we just added a step where we did semantic analysis of everything we collect? That way, we'd narrow down the stuff we were actually, you know, looking at to stuff we were already pretty sure was important."

"That's a GREAT idea!"

"Wait, I'm not finished. We could narrow it down even more if we maintained a graph of communications between everyone we know about. We want to affect the minimum number of people possible, right?"

"Well, we're worried about lone wolves too..."

"That's fine. We can get business records through the PATRIOT Act. We can make this a really fine-grained test. We can look for suspicious purchase patterns, medical conditions, attempts to avoid detection, you name it. What could possibly go wrong?"

a3n• 13 years ago

Why don't they get it over with and declare martial law? They clearly have decided they can do WTF-ever they want, by declaration.

joe_the_user• 13 years ago

They might already have done so - in secret!

lettergram• 13 years ago

Unfortunately they do not need scrutiny from the public, these judges (supposedly) are experts in constitutional law and the public (according to law) does not have any say in it.

ensignavenger• 13 years ago

"...the first Galactic Empire, for Peace and Security!"

"So this is how liberty dies, with thunderous applause!"

Amadou• 13 years ago

In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.

The court’s use of that language has allowed intelligence officials to get wider access to data and communication...

That is really, really scary when you include the fact that the term "weapon of mass destruction" has been so watered down as to now include even a freakin potato gun.

http://www.pri.org/stories/politics-society/government/expan...

ferdo• 13 years ago

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

This is political kabuki designed to make us think we have a representative government. We don't. We have an oligarchy composed of financial/industrial/military interests (as all oligarchies are) that runs the intelligence agencies of the government it owns.

The fact of the matter is that the NSA has always considered itself exempt from the law and the Constitution:

"NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency."
According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes."
http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...

pivnicek2• 13 years ago

A government that demands secret courts can not call itself democratic. It is the antithesis.

Qantourisc• 13 years ago

In our country all laws have to be published in the "Staatsblad" (State-released paper/documents containing new businesses, laws, ...) So unless a law to allow secret laws was made we shouldn't have secret laws.

So that got me thinking, try outlawing secret laws ?

snsr• 13 years ago

the court is creating a significant body of law without hearing from anyone outside the government

Legal precedents created by non-adversarial proceedings in a secret court are nothing less than terrifying.

teeja• 13 years ago

Somehow I don't think the FISA court is fixing the problems it was created to fix. It seems to have been co-opted.

Hopefully, in something less than a decade, one of our legislators can find time in his busy money-raising schedule to discover how that happened. And then start a task-force to make meaningful recommendations.

dsuth• 13 years ago

I do certification of high risk industrial installations for a living, and this story reminded me of one I heard about the Japanese Fukushima disaster.

One of the guys who does certification over there did some digging and found out that they had 3 sets of operating procedures for the plant: the independently reviewed and certified ones which would provide a high level of safe operation; the ones they didn't show anyone which was how they supposedly operated the plant day to day (cutting corners); and then the way they actually operated the plant, which was even less safe.

When I read stories about the FISA, they sound shocking, but they also sound a lot like Fukushima's 'second level' operating procedures. Bad, and an obvious sideshow, but not even close to what's really going on behind closed doors at the NSA.

In Secret, Court Vastly Broadens Powers of N.S.A.

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