FISA court rules NSA can resume bulk data collection

http://www.nytimes.com/2015/07/01/us/politics/fisa-surveillance-court-rules-nsa-can-resume-bulk-data-collection.html?_r=0

by facetube • 11 years ago

425 152 11 years ago

nytimes.com

afarrell• 11 years ago

One thing I don't understand about the updates to the law governing the FISA court: How would there be any challenge to its rulings? Without a challenge, how would it be appealed to SCOTUS? Without a public appeal, how would the legal community be able to debate the merits of different cases as they do with other constitutional law issues?

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

ikeboy9• 11 years ago

From the article:

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.

coldcode• 11 years ago

Yet no one has standing to request the Supreme Court look into this. Ah the joys of secret courts.

jMyles5• 11 years ago

I don't understand how the FISA court, created by Congress outside the bounds of the appointment clause, for the specific task of approving or rejecting surveillance warrants, can so casually set aside the rulings of an actual court.

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

dogma11383• 11 years ago

The constitution only mandates to establish a single supreme court, all federal courts were established by acts of congress.

jMyles5• 11 years ago

Poorly worded on my part. By "actual" Court, I meant a court whose personnel are appointed pursuant to the appointments clause of the US Constitution.

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.

rayiner5• 11 years ago

The federal appellate courts other than the fed circuit have regional jurisdiction. Their decisions are not binding authority on courts outside their own regions.

jMyles5• 11 years ago

As I understand it, that's not at issue here. The rulings of the circuit and district courts are binding on actors in their jurisdictions - the FISC can't (or at least, I didn't understand it to be legal for them to) come in and rule that conduct deemed unconstitutional by a circuit court on a particular actor (ie, the Second Circuit ruling on conduct by the NSA).

ikeboy9• 11 years ago

Did you read the opinion linked in the article? https://www.documentcloud.org/documents/2124483-br-15-75-mis...

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.

jMyles5• 11 years ago

Yeah, it's really oddly worded. Whether or not the 2nd Circuit is binding on FISC is not at issue. The question is whether or not the 2nd Circuit is binding on the NSA (or at least NSA activities within its geographical jurisdiction).

rhino3692• 11 years ago

To add to what others have already said, the Second Circuit stayed the order that would prevent the NSA from doing the calls. This means the Second Circuit didn't order them to stop.

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.

droopyEyelids• 11 years ago

I worry sometimes when I hear people say things like "What is the point, as soon as we overcome something or strike a victory, the other side starts looking for ways to undermine or overcome it"

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.

unclebucknasty• 11 years ago

Should we so easily accept that premise? Sure, we must guard against an erosion of rights. But, it seems that in some cases, we are guarding against subversion of the very tools emplaced to aid us in that objective.

lugg• 11 years ago

Yes, the premise is right, the "some cases" you have now, are subversion, definately, the problem is, they only gained a foothold purely because you failed to guard your rights from erosion in the first place.

dmix• 11 years ago

Just a reminder about FISA's historical performance:

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...

3pt14159• 11 years ago

Also the FISA court has been called an "almost parallel supreme court" by the New York Times, and given that it only hears one side of a case, makes this all the more troubling.

rtpg3• 11 years ago

people have talked about only hearing one side of the case, but that's the same for all warrant proceedings.

FISA court isn't about declaring people guilty, it's about declaring whether there's reasonable suspicion.

dflock• 11 years ago

comport with what the applicable statutes authorize

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.

dogma11383• 11 years ago

Those numbers don't mean much without the ability to compare them to the acceptance rate of warrants in other criminal courts.

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.

AndrewKemendo5• 11 years ago

I can tell you from first hand experience that getting a warrant TO the FISA court from a sponsoring agency is a massive bureaucratic battle in and of itself.

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.

JoshTriplett• 11 years ago

So, it's OK that the court is effectively a rubber-stamp, because we can trust that the agencies requesting warrants won't ask for things they don't think are reasonable?

No.

bazillion• 11 years ago

This is exactly the case. The reason there are almost no denials is that there would have been a great amount of due diligence performed to ensure that FISA collection was warranted. The fact that there are any denials after such analytic rigor takes place, suggests that the FISA court is not a rubber stamp.

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.

jfoutz• 11 years ago

I've been thinking about this for a while. This is a very compelling argument.

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.

aestetix• 11 years ago

I believe the first Snowden document leaked (the dragnet Verizon FISC decision) is evidence against this argument.

juliangregorian• 11 years ago

Is there any reason at this point to believe that FISA is less than an NSA organ? Secret courts in the USA, what has the world come to?

cubancigar11• 11 years ago

I am sorry but did you just say that bureaucracy is against the will of the government? Bureaucracy is the government!

harry82• 11 years ago

I don't believe you, sorry. You may be telling the truth but there are so many lies we've been told that I just don't. Sorry, that's how it is and I'm sure a very large number of people would agree with that. The FISA court /is/ a rubber stamp, how do we know? Ed Snowden told us about all the incredible amounts of overreach that the FISA court approved in secret.

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.

pluma• 11 years ago

The problem isn't whether passing FISA is difficult or not. The problem is what does pass FISA.

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.

DanielBMarkham• 11 years ago

Ok, let's assume anecdotally that this is true. This is your experience.

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.

gjm11• 11 years ago

Imagine a system that works as follows. You can have people assassinated. In order to do so, however, you need to fill in a hundred-page form with exhaustive details of your personal finances, your medical history, and the contents of your computers' hard drives; and then you need to play six sets of tennis against a strong player and win at least two; and then you need to play a 7-game chess match against a holder of FIDE's International Master title, and win at least two. Oh, and then there's a fee of $100k. Once you've done this, your application takes six months to be processed. Every week during this time, you get a callback and are asked intrusive personal questions about your sex life, your religion, and how you have voted in past elections. And then, at the end of the six months, the person named on the form gets assassinated by government agents.

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.

robogimp• 11 years ago

Essentially this is the "we know who is guilty" argument.

nickbauman• 11 years ago

If this is true, it doesn't help at all. Getting a patent approved by the USPTO takes literally years (plural plus). Yet look at all the terrible patents and how the patent system has essentially become the opposite of encouraging innovation.

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.

http://exitpromise.com/patent-approval-process/

Bartweiss3• 11 years ago

Honestly, this isn't meaningful reassurance. I'll grant that the FISA approval rate is a bad number to look at - most approval systems eventually get into a pattern where people only submit things that will get approved.

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.

nathan_long2• 11 years ago

So you're saying that the pass/fail ration we see is meaningless because there's effectively a prior filter.

What's the pass/fail ratio for it?

saosebastiao2• 11 years ago

If the evidence bar is so high, why exactly have there never been any arrests made using the data? That is an awful lot of people affected negatively for a zero benefit program. You would think a massive bureaucratic battle to only submit valid warrants would result in at least one arrest.

digler999• 11 years ago

I stop you right at the term 'court'. The doors are locked and all proceedings are done in secret with no counterparty. I say this 'court' doesn't conform to its definition of a "place where justice is administered". Maybe "court theatre" or "cargo cult court" might be a more accurate term ?

acveilleux• 11 years ago

The problem with an explanation like that is three-fold:

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.

r00fus• 11 years ago

In a statement, he said: "The perception that the court is a rubber stamp is absolutely false."

Is it me? I just hear Nixon saying "I'm not a crook"...

coldtea• 11 years ago

Or "Read my lips. There will be no new taxes".

Given the track record, I wonder what kind of mindset it takes for people who still believe official statements of that kind.

andreyf4• 11 years ago

You're right, he's not very good at the rhetoric [1]. That doesn't mean anything logically.

1. https://en.wikipedia.org/wiki/Ironic_process_theory

billions• 11 years ago

The FISA court is unconstitutional.

ngoede• 11 years ago

I don't know that this is true but I think we ought to pass a law or constitutional amendment banning secret/private courts if it is not.

shadowmint2• 11 years ago

an average of 33 a week

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...

rhino3692• 11 years ago

I believe they rotate who has the duty.

SturgeonsLaw• 11 years ago

And we're expected to believe that the three letter agencies just sit around, twiddling their thumbs, patiently waiting all those months for FISA approval before commencing surveillance on their targets?

Something here is not adding up.

fnordfnordfnord3• 11 years ago

Sounds a lot like a grand jury stuffed with hand-picked jurors. We know how that sort of thing usually turns out.

"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…".

http://www.cato.org/blog/grand-jury-system-joke

fru2013• 11 years ago

I personally think that creating laws to prevent government surveillance is a pointless endeavor. The NSA has ignored and broken laws in the past, why would we expect them to follow new ones that are passed?

The only way to prevent surveillance is with a technical solution (encryption), not a legal solution (more laws).

jMyles5• 11 years ago

I agree, with a caveat:

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.

jjoonathan• 11 years ago

Agreed. With the ability to carry out correlation attacks and the proven information content of metadata, encryption can't provide a complete "technological solution."

icanhackit• 11 years ago

The only way to prevent surveillance is with a technical solution (encryption), not a legal solution (more laws).

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.

rayiner5• 11 years ago

It costs political capital to ignore the law. Dig into the leaks that have come out. Why so much talk about meta data and U.S. persons and minimization? If they were just ignoring the law, they wouldn't bother with any of that. They do it because the law gives them leeway along certain dimensions, and it costs them much less political capital if they can justify their activities as sticking to those rules.

superuser2• 11 years ago

If the NSA's domestic spying is illegal, it's only on a technicality. Congress explicitly authorizes it, and the Supreme Court explicitly finds that the 4th amendment doesn't protect 3rd party records. I'm sure it's violated some specific regulations here and there, but on the whole, spying on everything everyone says and does is not illegal.

Which is insane. It absolutely should be.

SoftwareMaven3• 11 years ago

The 3rd Party Doctrine made sense when you were physically handing something to somebody else or whispering something in somebody else's ear. In today's world, its interpretation is ludicrously antiquated.

Unfortunately, I don't forsee Congress doing much to solve this any time soon.

fineman2• 11 years ago

It doesn't matter if the actions of the government are (by some technicality we wouldn't accept from a five-year old) legal, if we don't want that behavior anyways.

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.

raquo• 11 years ago

Technical solutions can and will be made illegal once they become a significant impedance to what the government wants to do, preventing the vast majority of people from using them.

caskance• 11 years ago

Encryption does not prevent surveillance, it just means surveillance changes to more watching people and devices and less watching traffic. You can use all the end to end encryption you want, it does you no good when the ends are insecure.

anigbrowl• 11 years ago

Don't look to technical solutions for human problems. You'll be disappointed.

nitrogen• 11 years ago

Apparently we can't look to humans for solutions either. So now what?

simplemath• 11 years ago

Always-on end to end crypto is an extremely difficult problem, and whoever solves it is going to win a gigantic market.

BillinghamJ• 11 years ago

It adds complexity, but it ultimately isn't really particularly difficult.

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.

kmonsen• 11 years ago

And they even lie about it in congress with no consequences http://www.politifact.com/truth-o-meter/article/2014/mar/11/...

0x5f3759df-i• 11 years ago

I'm sorry but no.

https://xkcd.com/538/

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.

Perseids• 11 years ago

Furthermore, even the best encryption does little to prevent meta data and anonymity networks ala Tor are inherently high latency and low throughput.

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.

mkstowegnv• 11 years ago

with real penalties for the violation of our rights.

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.

andreyf4• 11 years ago

How much did encryption help Lavabit? The court forced them to hand over the encryption keys anyway.

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.

higherpurpose4• 11 years ago

The problem isn't necessary the laws, but the fact that there never seems to be any punishment for abuses, so the NSA just learns the laws don't apply to them, and keep doing whatever they want. If our representatives actually punished them, we'd be in a different situation.

pjc50• 11 years ago

This is one of the few cases where "starve the beast" makes sense: there is a large entrenched power structure responsible for this, and the public is paying for it. A budgetary line of attack can work as well.

mirimir• 11 years ago

The NSA is a military organization, and arguably does not consider itself to be bound by domestic law. After all, the US is perpetually at war. But the legal environment can limit the NSA's options for using intelligence. When efforts must remain secret, there's more need for parallel construction.

on_and_off• 11 years ago

I personally fear that it might be equally pointless to try to encrypt your data. There are just too many point of failures. Some futurists like David Brin have been pushing the idea that encryption will ultimately fail and that sousveillance and a push for transparency were the only adapted responses.

I think it would be interesting to push in that direction (it does not prevent from trying to encrypt your data as well).

hyperion2010• 11 years ago

Anyone surprised that a fake court with no accountability says that the organizations it oversees can do what they want?

shit_parade3• 11 years ago

Oh surprise, secret court rules in favor of continuing secret laws to assist in secret data collection.

American Justice is a farce, illegitimate, and to be utterly ignored.

codezero2• 11 years ago

This infuriates me, as I assume it infuriates a lot of people. What the fuck can we do, short term, and long term?

codezero2• 11 years ago

I was seriously hoping that someone had some feedback. Quite telling that there's basically nothing to be done.

rtpg3• 11 years ago

The reasoning here is pretty sound:

- 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).

joshuak2• 11 years ago

And yet how does the FISA court have jurisdiction in the matter at all? My understanding was that the FISA court existed solely for the purpose of evaluating the validity of warrants that if applied for in a general court would prove a natural security risk.

rtpg3• 11 years ago

IANAL, but I think this is to say whether the FISC will accept any warrants of a "bulk collection" style for this 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.

rayiner5• 11 years ago

The FISA court does not handle criminal warrants. It was created to add a layer of judicial oversight for foreign power surveillance activities that previously did not require warrants.

drjesusphd2• 11 years ago

Of course they did. They're the NSA's personal court as far as I can tell.

drjesusphd2• 11 years ago

I'm really curious what skeletons the FISA judges have in their closets. Aren't you?

So what makes you think the NSA isn't?

titzer3• 11 years ago

It's really scary to think of the potential for abuse and corruption that such a treasure trove represents. Why should we trust them with the ability to essentially blackmail everyone?

suprgeek• 11 years ago

A non-adversarial system, with the Judge being a part of the Govt. Does anyone ever believe that this is anything other than the thinnest of fig leaves to cover the almost limitless power of the NSA to peep into people's private business?

davesque• 11 years ago

So, would someone please hack the NSA's collection of bulk metadata and use it to reveal embarrassing information about politicians and NSA employees who support this program? Why hasn't this happened yet?

harry82• 11 years ago

Why do you think it hasn't? People who drop endless resources into that kind of thing would use it for blackmail.

Are you sure people aren't being blackmailed? How sure?

titzer3• 11 years ago

The solution is to use strong encryption all the time. When it becomes the standard mode of operation for the majority of people, protocols, and applications, it will no longer be suspicious (and therefore probable cause) for a warrant. Let them subpoena the encryption keys in court or burn CPU time trying to crack things they find important. Encryption will help resist indexing and slow down data mining, bringing back some of the privacy and freedom we used to have.

themeekforgotpw• 11 years ago

Caveat here that the crypto needs to actually be good, and key management and negotiation needs to be good, and key sizes and algo parameters need to be good, and that hardware needs to be good, and that key escrow systems ("Secure" Enclave, "Trusted" Platform Module) need to be good, you can not use computing services - everything must be done locally (the third party doctrine means that copies of this data must be kept to be made available), and the software stack must be kept secure and the hardware must be trusted.

titzer3• 11 years ago

We're making progress on all those fronts. And even ROT-13 is better than sending everything in plain text.

rebootthesystem• 11 years ago

Help elect Rand Paul and all of this is likely to stop. Any other candidate, regardless of party affiliation, is a vote for maintaining the current state of affairs.

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.

FISA court rules NSA can resume bulk data collection

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