FISA

Jul. 10th, 2008 10:03 am
creidylad: (Default)
[personal profile] creidylad
My head spins as I try to encompass all the ins and outs of this FISA nonsense.

Ultimately what I do not get is:

How on earth is it remotely legal for congress to vote retroactive immunity to the Constitution?

Isn't that a call purely for the courts, short of congress amending the constitution?

Date: 2008-07-10 02:17 pm (UTC)
ext_86356: (Default)
From: [identity profile] qwrrty.livejournal.com
It's tricky, and I'm not a lawyer, but I believe this is how it works: the FISA bill grants retroactive immunity to the telecom companies who were complicit in wiretapping, not to the Justice Department. The Fourth Amendment (unreasonable search and seizure) applies only to state entities like the police or the FBI. As a nominally private entity, the phone company can't be held to have violated the Fourth Amendment. It's literally impossible.

Of course, this may be a distinction without a difference. The FISA bill itself might be held unconstitutional at some future date. We have yet to see.

Date: 2008-07-10 03:16 pm (UTC)
From: [identity profile] creidylad.livejournal.com
Well. That's interesting. So it might come down to where reasonable expectations of privacy apply when in a contract with your phone company... ?

Date: 2008-07-10 04:30 pm (UTC)
evilmagnus: (Default)
From: [personal profile] evilmagnus
You've seen 'Privacy Policies', right? Those bits of paper that promise nothing except that TransGlobalMegaCorps will take your money and run? ;-)

We really do need some stronger privacy laws here.

Date: 2008-07-10 03:17 pm (UTC)
From: [identity profile] ludomancer.livejournal.com
The amazing thing is that virutally no constituency wants this immunity, except the companies themselves of course. So who are the legislators representing?

The lobbying apparatus is so immense at this point-- legislators and telecoms are like the codependent spouses hurling beer bottles at each other until the neighbors complain, then they turn out the lights and have dirty make-up sex.

Date: 2008-07-10 03:21 pm (UTC)
From: [identity profile] creidylad.livejournal.com
It's all a big mystery to me. Why? Are there issues at stake that nobody is articulating well? Why not just get warrants in the first place? Why didn't the telcoms demand the warrants -- did they already believe themselves immune? They MIGHT have been. They aren't medical offices with protected confidentiality. If so, why do they need it enshrined in law? And how can anybody think this stupid law is going to hold up if anyone bringing a suit finds a friendly judge who believes they were breaking the law to begin with?

Date: 2008-07-10 03:55 pm (UTC)
From: [identity profile] ludomancer.livejournal.com
The wiretaps started before 9/11, a lot of people miss that fact. The truth is nobody really knows what the NSA was investigating, there's no transparency. But if they're so adamant about not getting warrants, it smells bad no?

Telecoms went along because they're always seeking favorable connections for government work (see also: journalists). The people flailing their arms about security forget that:
- telecoms are required by law to cooperate with NSA, etc. when there's a warrant
- without a warrant on record, you can't categorize the surveillance subjects as terrorists or anything else, other than to say "trust us"

A lot of people forget what rule of law is supposed to mean in this country. Even infanty soldiers are required to refuse unlawful orders from their superiors.

Once the NSA story broke, the whole immunity issue was raised by and for the telecoms. See also: the net neutrality "issue".

Date: 2008-07-10 03:31 pm (UTC)
From: [identity profile] scottso.livejournal.com
This bill has nothing to do with the Constitution. Congress still cannot spy on U.S. citizens without probable cause and a warrant.

Date: 2008-07-10 03:49 pm (UTC)
From: [identity profile] creidylad.livejournal.com
I'm now even more confused as it's not clear to me if the telcoms broke laws beyond their user agreements with individual clients -- and I'm not sure they have privacy clauses spelled out with those clients.

Though I think we have a reasonable expectation of privacy...

Baffling. Baffling!

I feel in my bones it was all illegal and that the courts can still skewer them, and this congressional business is all smoke and mirrors.

I just still don't quite get the legal ins and outs.

Date: 2008-07-10 04:01 pm (UTC)
From: [identity profile] scottso.livejournal.com
There is no expectation of privacy on the Internet. :)

If Verizon, et al. wanted to spend millions of dollars to monitor you, and then package up the data and hand it over to DHS, they could certainly do that. They have broken no laws or contracts.

Of course, no such thing has happened. No company would spend millions of dollars to do such a thing without being forced to. They're just not allowed to talk about it.

Date: 2008-07-10 04:36 pm (UTC)
evilmagnus: (Default)
From: [personal profile] evilmagnus
They bill the government; it costs them nothing.:)

There was a bit of a stew last year when AT&T threatened to stop the taps, not because it was illegal, but because the Justice Department hadn't paid them.

Date: 2008-07-10 04:44 pm (UTC)
From: [identity profile] ratbastrd.livejournal.com
Sure they would. They do it all the time. They do it for different reasons, certainly, but the information is still there, and is still collected and collated, constantly. Costs nothing to turn it over the government, and I'm sure they'll get proper consideration for it.

Date: 2008-07-10 04:34 pm (UTC)
evilmagnus: (Default)
From: [personal profile] evilmagnus
Have you read the bill? Whilst that's *technically* still true, the government can now get a 'free pass' to spy on you, claim it was incidental (you made an international phone call! Or, better yet, your phone call went through a central switch where they were monitoring traffic for terrorists), stall for 90 days (30 days before they have to file, then 60 days to appeal, during which they can still tap) then drop the issue with a cry of 'no harm, no foul'.

Rinse, repeat. It really does drive a truck through the original FISA legislation, which was written to specifically forbid this crap.

Date: 2008-07-10 05:01 pm (UTC)
From: [identity profile] scottso.livejournal.com
Yes, I have read it. Have you? :)

It changes remarkably little. Warrants are, in fact, still required. The bill is rather clear that executive can't override FISC. In cases of national security, the warrants may be classified. They are still subject to oversight, just not by the public.

In your hypothetical situation, anything collected would not be admissible. Which is the real issue, isn't it? NSA has always listened to everything anyway. They're just limited in what they can sell.

Date: 2008-07-10 07:03 pm (UTC)
evilmagnus: (Default)
From: [personal profile] evilmagnus
This article probably does a better job of pointing out the flaws than I can:

http://www.capitolhillblue.com/cont/node/9312

It points out that, no, warrants are no longer required, not even for intercepts that involve US persons. They're replaced by 'Authorizations' which are reviewed by a Judge. The situation is changed from 'Can we have a warrant?' to 'We're spying on these folks, is that OK? And even if it's not, we can do it for three months regardless'.

Date: 2008-07-10 09:38 pm (UTC)
From: [identity profile] scottso.livejournal.com
I certainly appreciate your position. Hell, I wouldn't trust the Bush administration with my laundry. But there are some serious exaggerations going on in that article. It's very hard to take seriously.

The whole concept of certifications is actually *more* oversight than there used to be. If you're really interested in how the information gets gathered and sold, I highly recommend The Puzzle Palace and Body of Secrets by James Bamford as good primers.

Date: 2008-07-10 04:41 pm (UTC)
From: [identity profile] ratbastrd.livejournal.com
Not true, sadly. Congress can and will, under FISA, spy on Americans, as long as they are talking to someone who is not an American. FISA says that they're supposed to try and delete the names of the Americans if they don't have a warrant first, but the simple truth is that the bill does NOT provide for court oversight of individual cases at all. ALL it provides is that once per year a secret court will review the general procedures used.

So, no. No warrants needed to spy on Americans, and no court oversight of the spying entities. Absolutely in violation of the 4th amendment, but given the present SCOTUS, that's hardly an issue.

Date: 2008-07-10 04:52 pm (UTC)
From: [identity profile] scottso.livejournal.com
A) NSA collects data. Always have. Nothing new. It's in their charter -- they are outside the Constitution, as they are not allowed to analyze the data.
B) DHS requests warrant from FISC for that data. *Sometimes these warrants are classified.*
C) FISC tells NSA how much to hand over -- (FBI can't have foreign national names, CIA can't have US nationals names, etc.)
D) FISC has annual review to make sure no laws were broken.

Nothing has changed with this bill. No spying is going on without warrants -- the warrants are just classified.

Date: 2008-07-10 07:35 pm (UTC)
evilmagnus: (Default)
From: [personal profile] evilmagnus
Nothing has changed with this bill. No spying is going on without warrants -- the warrants are just classified.

Admissible evidence can now be gathered via 'Certifications', which appear to have a lower bar than warrants (they're issued by the AG and the DNI and subject to a very constrained post-facto review by FISC), and data can be gathered for longer even if FISC determines they were improperly issued, and may incidentally or directly target US persons. They may also be much broader than a warrant in their scope. See Sec 702(g) of the House bill.

There's nothing that I can find that says 'Oh, if a Certification turns up evidence against a US person, you have to throw it out and get a warrant'. It seems to say that if a certification is properly issued, that's good enough so long as the US person was not explicitly targeted.

There is reference to the 4th Amendment in there, though, so it would be interesting to see how a legal challenge to certifications would play out with the Supremes. Assuming, of course, that a US person was convicted with crimes using evidence collected from a Certification and was able to actually appeal the conviction.

It's certainly a gutting of the original FISA bill (which is pretty darn clear and seems perfectly reasonable, assuming you can show probable cause to FISC), probably because they couldn't prove probable cause under the current system for some stuff. Certainly, with almost 2,000 FISA warrants issued every year the administration seems perfectly willing to use the existing process when it suits them.

Date: 2008-07-11 02:40 am (UTC)
From: [identity profile] creidylad.livejournal.com
OK, but....

What I'm now trying to figure out is:

Were the telcoms actually breaking laws as they understood them?
The answer, I am pretty sure is: I don't think so.

It's a bad law, and I doubt it's really and truly constitutional, but it hasn't been properly tested, and it's more than a decade old, and I think the telcoms were within the letter of FISA.

So what the hell does it mean that they are granting immunity?
Probably not a lot.

So Obama may actually have GAINED my respect a tiny bit by going against popular opinion (which I think is misinformed on the above points, but I want to be SURE) to make sure the additional oversight got passed and given up a position that he knows is actually meaningless.

Because if the law was illegal to begin with and gets successfully challenged, I'm pretty sure the immunity law is also invalid?

But this is why I am not a highly-paid attorney. I don't understand the detailed ins and outs of what this immunity means.

Date: 2008-07-11 03:38 am (UTC)
evilmagnus: (Default)
From: [personal profile] evilmagnus
As far as anyone knows, the telecoms were *not* served warrants for intercepts under FISA; that the immunity provision is attached to FISA legislation shouldn't lead you to assume that they were operating under FISA - they were not.

What happened was, the DoJ asked nicely for blanket intercepts, said the President said it was OK, and most (but not all) of the telecoms said 'OK!'. Qwest was the notable exception. They had their lawyers look into it, asked for a warrant, and the government said "we'll get back to you on that". Again - Qwest is on record saying exactly what the government asked them for, and that their lawyers took one look at the request and ran screaming. Assuming the government asked AT&T for roughly the same thing, then the only difference between the two was that AT&T's executives decided to say yes against legal advice... or that legal advice was never sought, or was highly filtered before it reached the executive floor.

The original FISA 1978 law seems perfectly kosher - it was designed specifically to pass Constitutional muster and to explicitly say under what circumstances these kinds of intercepts could be done. It's a good law.

Were the telcoms actually breaking laws as they understood them?

They were, and I'm sure their legal departments said so (it'd have been negligent for them to say otherwise), but as the old saying goes, when your job depends on you believing something that's wrong... The government gave them an excuse, they took it, and then when it all blew up in their faces they threw millions of dollars at their elected representatives to make the bad things go away.

So what the hell does it mean that they are granting immunity?

Tens of billions of dollars were on the line here. There are laws on the books that make what they are alleged to have done both very illegal and very expensive for transgressions, not counting civil suits (which have a lower bar for guilt, remember).





Date: 2008-07-11 03:42 am (UTC)
From: [identity profile] creidylad.livejournal.com
But does immunity actually make them immune to civil suits?

Date: 2008-07-11 04:47 am (UTC)
evilmagnus: (Default)
From: [personal profile] evilmagnus
I don't know... I don't think that's possible. But certainly without evidence of criminal wrongdoing, it'll be harder to get a conviction in a civil suit. The worst case scenario would have been a criminal conviction leading to civil suits and shareholder lawsuits.

Date: 2008-07-11 02:41 am (UTC)
From: [identity profile] creidylad.livejournal.com
See comments to Elivmagnus below clarifying where my personal confusion lies.

Date: 2008-07-11 02:43 am (UTC)
From: [identity profile] creidylad.livejournal.com
The rubric isn't actually "not an American." People in the country legally count as "US Persons" for this person though I think NOT if they are part of an actual foreign organization.

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