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posted by janrinok on Wednesday July 01 2015, @07:03PM   Printer-friendly
from the don't-care-what-you-want-we're-going-to-do-this dept.

A secret US tribunal ruled late Monday that the National Security Agency is free to continue its bulk telephone metadata surveillance program—the same spying that Congress voted to terminate weeks ago.

Congress disavowed the program NSA whistleblower Edward Snowden exposed when passing the USA Freedom Act, which President Barack Obama signed June 2. The act, however, allowed for the program to be extended for six months to allow "for an orderly transition" to a less-invasive telephone metadata spying program.

For that to happen, the Obama administration needed the blessing of the Foreign Intelligence Surveillance Court (FISA Court). The government just revealed the order.

In setting aside an appellate court's ruling that the program was illegal, the FISA Court ruled that "Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specially authorized. For this reason, the Court approves the application (PDF) in this case."

http://arstechnica.com/tech-policy/2015/06/secret-us-court-allows-resumption-of-bulk-phone-metadata-spying/


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  • (Score: 3, Interesting) by frojack on Wednesday July 01 2015, @10:58PM

    by frojack (1554) on Wednesday July 01 2015, @10:58PM (#203999) Journal

    Agreed, I still can't understand why this court exists. War time exigencies have long since passed, if they really existed at all.

    The problem appears to be that there is nothing explicit in the constitution that forbids such a court.

    You can get a "secret" (undisclosed) search warrant or Arrest Warrants from any court, which is often used by fugitive task forces, where things have to be kept quiet till the police have a chance to serve the warrant.

    But having an entire court to work in secret is just wrong.

    Fisa courts [fff.org] arose in the Carter administration. (Everybody wants to blame Bush.). They laid in the weeds for 20 years doing just about nothing till 9/11.

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  • (Score: 2) by HiThere on Wednesday July 01 2015, @11:12PM

    by HiThere (866) Subscriber Badge on Wednesday July 01 2015, @11:12PM (#204008) Journal

    I can't remember the language (not well enough to search for it), but I believe that somewhere in the Constitution secret courts ARE explicitly forbidden. But it could have been the declaration of independence.

    If I thought they still paid any attention to the constitution I might do the appropriate research...but they clearly don't.

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    • (Score: 3, Insightful) by frojack on Wednesday July 01 2015, @11:25PM

      by frojack (1554) on Wednesday July 01 2015, @11:25PM (#204016) Journal

      I suggest that the Constitution is not so long, nor the language so opaque, that your search for such a prohibition, if fruitful, would be a great service to all US Citizens.

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    • (Score: 2) by TrumpetPower! on Thursday July 02 2015, @01:19AM

      by TrumpetPower! (590) <ben@trumpetpower.com> on Thursday July 02 2015, @01:19AM (#204032) Homepage

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

      Cheers,

      b&

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      • (Score: 3, Interesting) by fnj on Thursday July 02 2015, @01:42AM

        by fnj (1654) on Thursday July 02 2015, @01:42AM (#204040)

        October 4, 2013: Rep. Poe on FISA Courts as "The 21st Century Star Chamber" [fas.org]

        Either the Constitution has a massive hole in it, or the Supreme Court is not doing its fucking job (Ha! big revelation).

      • (Score: 3, Informative) by frojack on Thursday July 02 2015, @01:47AM

        by frojack (1554) on Thursday July 02 2015, @01:47AM (#204042) Journal

        Not even vaguely pertinent until some one is brought to trial.

        The quote talks about trials, not the issuance of warrants.

        And by that time, there will be a great deal of parallel construction, and much later (and open) warrants. Meanwhile the mass surveillance is authorized by the secret court on the slimmest of pretenses.

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        • (Score: 2) by HiThere on Thursday July 02 2015, @08:31PM

          by HiThere (866) Subscriber Badge on Thursday July 02 2015, @08:31PM (#204390) Journal

          Well, if you don't think that relevant, then I understand why you didn't think it was there (your clear implication). But try also this:

          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.

          It doesn't explictly state that the warrant must be issued with the intention of prosecuting for a crime, but to my mind there is a clear implication that that was the intent of the law, and thus the way it should be interpreted.

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          • (Score: 2) by frojack on Thursday July 02 2015, @08:52PM

            by frojack (1554) on Thursday July 02 2015, @08:52PM (#204401) Journal

            Topic drift.

            Remember way back when you yourself said:

            I can't remember the language (not well enough to search for it), but I believe that somewhere in the Constitution secret courts ARE explicitly forbidden.

            You've now drifted off to something totally different. Lets get back to you finding a prohibition of secret courts.

            What you quoted above doesn't address that issue. It says there must be a warrant, it doesn't say it must be issued by a non-secret court, it doesn't even say you have to show the searched person the actual warrant.

            You made an assertion. I just want you to back it up with a citation prohibiting secret courts.

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            • (Score: 2) by HiThere on Friday July 03 2015, @07:32PM

              by HiThere (866) Subscriber Badge on Friday July 03 2015, @07:32PM (#204830) Journal

              As I consider that warrants have only been authorized in the context of a criminal trial (very early stage, of course), to me the clear implication is that warrants that aren't intended to facilitate a public trial are not authorized. And the constitution doesn't give any power to the federal government that isn't explicitly stated in it's wording.

              I will agree that a civilization with a dense population with fast transportation and communication could not function under a strict reading of the constitution, but the appropriate remedy is to amend the constitution, not to ignore it. But the chosen course has been to ignore it, and to willfully misinterpret the clear wording.

              E.g., the "well organized militia" is nowhere stated to be governmentally organized or approved. NOWHERE. And, in fact, many of the founders would have been strongly against such a requirement. (Not to mention that it would have been unworkable in remoter areas at the time...slow transportation and communication.)

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              • (Score: 2) by frojack on Friday July 03 2015, @10:24PM

                by frojack (1554) on Friday July 03 2015, @10:24PM (#204861) Journal

                As I consider that warrants have only been authorized in the context of a criminal trial (very early stage, of course), to me the clear implication is that warrants that aren't intended to facilitate a public trial are not authorized. And the constitution doesn't give any power to the federal government that isn't explicitly stated in it's wording.

                But see, here you've done it again!!!

                You've wandered off the reservation into your own bizzaro opinion land, rewriting the law and the constitution to meet your needs as if someone had appointed you king!

                Search warrants need not be issued in the context of a criminal trial. They are an evidence gathering tool. The tool is most often used WAY before there is a trial. You are afforded protection against UNREASONABLE search and seizure. You aren't afforded an absolute protection against a search. You need not be guilty of a crime to have a search warrant served upon you.

                But more importantly, (and I can't stress this enough, and I mean it in the most helpful and respectful way) YOU don't get to decide what is or is not unreasonable. We have judges appointed to that task. And NO, we are not going to amend the constitution to conform to your wishes. Just not going there. Look, you REALLY have to get over yourself here, or run for president, get yourself appointed to the supreme court, (9 times) or take up heavy arms with several million of your friends and impose your own way.

                Your understanding of the Constitution (or what is left of it) is seriously flawed. The constitution is a FRAMEWORK, not a detailed item by item authorization for every act the government might take. There is no authorization in the constitution to allow mowing the grass along a Federal Highway. There isn't even authorization for the highway. That's not how the world works. Nobody specifies each and every future act of a government in advance. (They tried in the EU, evens specifying how people should think!). A lot of shit gets hidden in "Congress shall make such laws as necessary.., Congress shall establish such inferior Courts...)

                A secret court is an anathema to the ideals that the United States was founded on.

                But some how Jimmy Carter got it set up, Congress thought it was NECESSARY, several supreme court cases decided that it was REASONABLE, and here we are.

                The secret FISA courts issue search and seizure warrants just about every week. Most of these will never lead to a trial. Most of these will never even lead to an arrest.

                But the fact remains, a Judge in a secret court was convinced that there were REASONABLE grounds to allow the search. He issued a warrant, someone's email queue, or phone logs, or browsing history was searched. And I wager 98% of them were guilty of nothing at all, or at least never charged.

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                • (Score: 0) by Anonymous Coward on Saturday July 04 2015, @09:01PM

                  by Anonymous Coward on Saturday July 04 2015, @09:01PM (#205110)

                  YOU don't get to decide what is or is not unreasonable.

                  This looks like the "Judges are always right." fallacy again. Anyone can decide what they believe is reasonable, but that doesn't necessarily mean their opinions will be valued in the legal world; that doesn't invalidate their opinions, however.

                  The constitution is a FRAMEWORK, not a detailed item by item authorization for every act the government might take.

                  Actually, the constitution explicitly states that the federal government only has as much power as it is given. Inconvenient or not, the government is doing many unconstitutional things right now. But I guess you choose to ignore that for convenient, instead of going the proper route and amending the constitution. Many of the fixes could be done, because few people would oppose them.

                  Nobody specifies each and every future act of a government in advance.

                  Which is why it can be amended. But I guess that's hard, so just violate it instead.

                  But the fact remains, a Judge in a secret court was convinced that there were REASONABLE grounds to allow the search.

                  Well, he's wrong. Nothing more to say about that.

  • (Score: 2) by Anal Pumpernickel on Thursday July 02 2015, @12:57AM

    by Anal Pumpernickel (776) on Thursday July 02 2015, @12:57AM (#204030)

    War time exigencies have long since passed

    In times of true peace, our civil liberties are in less danger because people are more rational and vigilant. It's in times of war when we need to protect our civil liberties the most, as politicians will be able to more easily play on people's fear and manipulate them into giving the government powers it should not have and possibly cannot have. The "It's a time of war, so X is okay." excuse should not be accepted. Secret courts are bad even during times of war. There is no excuse for violating people's fundamental liberties, war or no war.

    • (Score: 2) by mhajicek on Thursday July 02 2015, @03:24AM

      by mhajicek (51) on Thursday July 02 2015, @03:24AM (#204070)

      This is why the U.S. has been in a state of war (usually undeclared) almost continuously since the late 1800's.

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