October 3, 2011 FISC Opinion Holding NSA Surveillance Unconstitutional

https://www.eff.org/document/october-3-2011-fisc-opinion-holding-nsa-surveillance-unconstitutional

by pvnick • 13 years ago

135 35 13 years ago

UVB-76• 13 years ago

Footnote 14 on Page 16 is very interesting:

The Court is troubled that the government's revelations regarding NSA's acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.

On Page 17, the revelation that the NSA were acquiring Internet transactions before the Court's approval of Section 702:

The government's submissions make clear not only that NSA has been acquiring Internet transactions since before the Court's approval of the first Section 702 certification in 2008, but also that NSA seeks to continue the collection of Internet transactions.

On Page 71, the revelation that data acquired via upstream interception pales in comparison to that acquired directly from Internet service providers:

Nor do these disclosures affect NSA's collection of Internet communications directly from Internet service providers [redacted], which accounts for approximately 91% of the Internet communications acquired by NSA each year under Section 702.

interurban• 13 years ago

In reference to the required standards for querying by the NSA:

The Court concluded that this requirement had been 'so frequently and systematically violated that it can fairly be said that this critical element of the overall.. regime has never functioned effectively.'

edit: from Pg. 16, footnoote 14

discostrings2• 13 years ago

The first of the instances mentioned in footnote 14 involves the NSA running overly broad queries on telephone records that violate the court's allowances. The second is fully redacted. Sounds pretty serious!

dragonwriter• 13 years ago

Yeah, I think the major revelation here is that the Administration clearly had a pattern of withholding and misrepresenting what was doing in order to get the FISC to approve it. Aside from the obvious negative aspects, there is a minor positive aspect here: clearly, the court wasn't seen as a "rubber stamp".

And this clearly takes the program out of the realm of honest attempts to protect security within the law where perhaps there are disagreements, major or minor, about the boundaries; a regular pattern of misrepresentation to the court overseeing surveillance erases any grounds to claim that the surveillance effort did not involve deliberate, conscious illegality and deliberate, conscious efforts to conceal that illegality.

dangrossman2• 13 years ago

Some quick quotes if you don't have time to read it all:

However, the Court is unable to find that NSA's minimization procedures, as the government proposes to aply them in connection with MCTs, are "reasonably designed in light of the purpose and technique of the particular [surveillance or physical search], to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce and disseminate foreign intelligence information." 50 USC 1801(h)(1) & 1821(4)(a). The Court is also unable to find that NSA's targeting and minimization procedures, as the government proposes to implement them in connection with MCTs, are consistent with the Fourth Amendment. -- Page 29
... the government stresse that the number of protected communications acquired is relatively small in comparison to the total number of Internet communications obtained by NSA through its upstream collection. That is true enough, given the enormous volume of Internet transactions acquired by NSA through its upstream collection (approximately 26.5 million annually). But the number is small only in that relative sense. ... In absolute terms, tens of thousands of non-target, protected communications actually is a very large number. -- Page 72
At issue here are the personal [redacted] communications of U.S. persons and persons in the United States. A person's "papers" are among the four items that are specifically listed in the Fourth Amendment as subject to protection against unreasonable search and seizure. Whether they are transmitted by letter, telephone or e-mail, a person's private communications are akin to personal papers. Indeed, the Supreme Court has held that the parties to telephone communications and the senders and recipients of written communications generally have a reasonable expectation of privacy in the contents of those communications. -- Page 73
The Court concludes that one aspect of the proposed collection - the "upstream collection" of Internet transactions containing multiple communications, or MCTs - is, in some respects, deficient on statutory and constitutional grounds. -- Page 79
NSA's targeting and minimization procedures, as the government proposes to apply them to MCTs as to which the "active user" is not known to be a tasked selector, are inconstistent with the requirements of the Fourth Amendment. -- Page 80

acqq3• 13 years ago

Anybody has a good guess what

     the personal [redacted] communications

should be? Really intriguing, keeping classified something simple looking as the kind of communication or the attribute of it. From the context, it appears it can't be "personal telephone communication." Telephone communication is anyway always personal. It must be something else, my guess, something that can be both personal and private, when here personal is explicitly used.

talentless• 13 years ago

Based on the length of the redaction and the type I would guess "electronic".

bobwaycott2• 13 years ago

domestic?

gruseom• 13 years ago

I have a naive question. If the court found NSA surveillance unconstitutional, why didn't it stop? Was the opinion overturned, or did the program change in response to it?

mrt0mat04• 13 years ago

i was wondering the same thing.

sologoub2• 13 years ago

From Washington Post article: "A month after the FISA court learned of the program in 2011 and ruled it unconstitutional, the NSA revised its collection procedures to segregate the transactions most likely to contain the communications of Americans. In 2012, the agency also purged the domestic communications that it had collected." (Source: http://www.washingtonpost.com/world/national-security/nsa-ga...)

That said, I really don't see how there could be an argument of an effective oversight, if what you are overseeing is so secret that you have no independent information on the subject matter. The secret organization (NSA in this case) is strongly incentivized to not disclose the entire truth or withhold key limitations in order to achieve its' objectives. If there is no way to independently verify that what is being said/committed to is actually functioning, court pretty much has to trust NSA to self-police. Everything here is being done on the NSA's terms and not the Courts or Congress's.

mrt0mat04• 13 years ago

Even the Courts are saying the can't oversee this:

http://www.washingtonpost.com/politics/court-ability-to-poli...

this needs to be stopped!

sitkack2• 13 years ago

It is also my understanding that the ruling was sealed as top secret by executive order, please someone confirm this. By doing so they proved/showed a ridiculous loophole in the system, that the court is a total puppet. It can declare verdicts, but the verdicts can be silenced by executive order, disappearing them.

Executive orders of secrecy can and will make everyone guilty of espionage at some point. 2 + 2 == 4 is now declared "TOP SECRET" to reveal it is an act against the US.

rayiner3• 13 years ago

The court found a particular surveillance program with a particular set of minimization procedures unconstitutional (see discussion starting on page 49). It did not find "NSA surveillance unconstitutional."

The court's concern centers around purely domestic communications and the failure of the NSA's minimization procedures to exclude it from the collections.

mrt0mat04• 13 years ago

Redaction is the pebble in the shoe of anyone reading this. How frustrating to not just be able to read it. It allows the gov. to say, you're not seeing it in the full context. well, no shit, we can't see it in it's full context. frustrated!

asperous3• 13 years ago

To be honest they redacted only some names, the names of the isps they are working with, some numbers, and the names of certifications. Certainly there's some really interesting stuff here left non-redacted.

mrt0mat04• 13 years ago

i agree, it's just frustrating to have to hop through them. and even though you're probably right, without actually seeing what is redacted, we will never know if that's all that they redacted.

sitkack2• 13 years ago

homework assignment, using the same typeface find valid strings (names of ISPs etc) that fit within the redacted blocks. Extra credit for using an NLP toolkit to ensure grammatical correctness, double extra credit for using the same grammar rules as the document.

rayiner3• 13 years ago

There really isn't all that much redacted, though it's annoying. The redaction is heavy in the first 15 pages because there are a lot of reference to specific people, docket numbers, etc. I bet a lot of the "Certification <redacted>" you see are things like "Certification of John P. Spymaster." The other thing that gets redacted is the capabilities/limitations of the equipment. But the meat of the legal analysis is there (read past page 15).

discostrings2• 13 years ago

One important thing to keep in mind while reading this opinion is that this is the opinion of the FISC--a court that operates in secret, whose members are chosen by a single man, that has a reputation for rubber-stamping almost every request it has ever received, and that only hears the NSA's side of every argument.

If the FISC is using language this strong, what would a normal court have to say about the NSA's brazen approach to the law?

coldcode• 13 years ago

Trust but verify should be the rule. And that verification should be a public thing. Secret courts ruling secret laws are unconstitutional and getting secret organizations to fix said secret things in secret has no place in a democracy.

Also, last time I checked violating the law of the land is supposed to involve punishment. How is Bradley Manning as an individual violating a law different than the NSA? Why couldn't he simply be told to stop doing what he was doing? </sarcasm>

sologoub2• 13 years ago

Actually, you bring up a very valid point. NSA performed collection that went above court approval. Potentially mislead the court even.

If a normal police officer goes in violation of a warrant, he/she is jeopardizing the case and potentially their career/livelihood. Nothing to say of a common citizen violating a law.

rayiner3• 13 years ago

I really recommend reading the whole thing, especially past page 15 (the first 15 pages are boring procedural history and heavily redacted). Interesting stuff starts at pages 27, 32, 35-40, 43, 49 (4th amendment analysis). If you read nothing else, read from the last paragraph of 71 to the first paragraph of 79. which contain a readable and un-redacted summary of the court's problem with the NSA's program.

revelation• 13 years ago

Well, isn't this a wonderful analogy:

http://i.imgur.com/APhAVKE.png

In a sea of blacked out information, our government censors have given us this tidbit, when apparently no other sentence on these pages was deemed fit to be released.

It is pure travesty. The courts had to tear this document full of legalese from the governments hands, and they still allow these muppets to censor according to political agenda?

toufka• 13 years ago

I thought that was some kind of construction rather than a screenshot. That's actually from page 27. For those who don't want a good imgur click:

      [cross-out]-TOP SECRET-//-COMINT-//-ORCON,NOFORN-[/cross-out]

[[...redacted]] It likewise raises no Fourth Amendment problem. [[redacted...]]

MWil• 13 years ago

that could just as well be a portion of the text describing an alternative the NSA COULD be taking and hasn't. That alternative providing no 4th amendment problem.

gizmo686• 13 years ago

I don't think so. As toufka pointed out, that screenshot comes from page 27. I will reproduce the surrounding context of that quote:

" 3. The Amended CIA Minimization Procedures

The CIA minimization procedures include a new querying provision [redacted] The new language would allow the CIA to conduct queries of Section 702-acquired information using United States-person identifiers. All CIA queries of Section 702 collection would be subject to review by the Department of Justice and the Office of the DNI. [Redacted], the addition of the new CIA querying provision does not preclude the Court from concluding that the amended CIA minimization procedures satisfy the statutory definition of minimization procedures and comply with the Fourth Amendment.

[footnote: The Court understands that NSA does not share its upstream collection in minimized form with the CIA]

[new paragraph]

The amended CIA minimization procedures include [Redacted] raises no concerns in the context of the CIA minimization procedures

[new paragraph]

[redacted]

[new paragraph]

the government has also added [redacted] It likewise raises no Fourth Amendment problem. [redacted]

[new paragraph] Finally, a new provision [redacted] The court likewise sees no problem with the addition [single word redacted] to the CIA minimization procedures.

[end section]"

acqq3• 13 years ago

It looks as we still don't know what exactly NSA did that was unconstitutional? Do we? If not, then what's the use of the disclosure as it is now?

dangrossman2• 13 years ago

It seems to be spelled out pretty clearly. The NSA was collecting internet messages through ISPs. These messages were supposed to be to, from, or about specific non-US targets, and the systems were supposed to have "minimization procedures" that would keep them from collecting other messages that were to/from/about US citizens. These procedures were found to be insufficient: the NSA collected tens of thousands of messages about US citizens without their consent, which the court found to be in violation of the fourth amendment.

beedogs• 13 years ago

This is why I donate to the EFF. They fought for years to get this "secret" FISC ruling released.

October 3, 2011 FISC Opinion Holding NSA Surveillance Unconstitutional

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