FISA

[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?

Comments

[zthulu]

This bill has nothing to do with the Constitution. Congress still cannot spy on U.S. citizens without probable cause and a warrant.

[creidylad]

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.

[zthulu]

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.

[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.

[ratbastrd]

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.

[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.

[zthulu]

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.

[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'.

[zthulu]

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.

[ratbastrd]

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.

[zthulu]

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.

[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

[creidylad]

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.

[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

[creidylad]

But does immunity actually make them immune to civil suits?

[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.