NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment

from the legal-loopholes dept

Fri, Aug 9th 2013 10:36am — Mike Masnick

We already wrote about the bombshell revelation from the Guardian that the NSA changed the rules in October of 2011, so that it had permission to do warrantless searches on US persons (contrary to public claims). However, Marcy Wheeler recognized the date of that update is the very same date that the FISA court supposedly smacked down the NSA for violating the 4th Amendment with some searches.

If you don't recall, about a year ago, under pressure from Senator Wyden, the US government admitted (late on a Friday evening) that, indeed, the FISA court had "on one occasion" ruled that certain activities concerning Section 702 "minimization" (i.e., trying to avoid searches on US persons) were "unreasonable under the Fourth Amendment." And yet, that very same day, the NSA announced that the rules had changed and it could do searches on US persons, following a certain (undisclosed) "oversight process." Wheeler notes that the NSA seems to have interpreted the FISA court smacking it down for spying on Americans as a form of permission to spy on Americans:

The FISC Court didn't just "approve" minimization procedures on October 3, 2011. In fact, that was the day that it declared that part of the program violated the Fourth Amendment.

So where the glossary says minimization procedures approved on that date "now allow" for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate "an effective oversight process," even while approving the idea in general.

And note that FISC didn't, apparently, require that ODNI/DOJ come back to the FISC to approve that new "effective oversight process."

Wheeler goes further, providing details from the discussion in the Senate Intelligence Committee during the debate over reauthorizing the FISA Amendments Act (which is where 702 comes from), in which it was strongly hinted that the FISA court had "concerns" about this very type of backdoor searching, and despite acknowledging this, no one bothered to close that backdoor. In fact, it now appears that the NSA and the Director of National Intelligence may have used all of this as a cover to argue that they are authorized to do these kinds of searches.

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Filed Under: 4th amendment, faa, fisa amendments act, fisa court, fisc, nsa, nsa surveillance, searches, section 702, surveillance

16 Comments

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Hephaestus (profile), 9 Aug 2013 @ 10:53am

It occurred to me, that until we have laws in place that include jail time, for politicians and government personnel, for violating the constitution, this is not going to stop.
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- Anonymous Coward, 9 Aug 2013 @ 12:04pm
  
  Re:
  That's what I've been saying for weeks.
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  - Anonymous, 9 Aug 2013 @ 2:57pm
    
    Re: Re:
    What I've been saying for years: If the government can violate the constitution and get away with violating the constitution, what good is the constitution? It's words on a piece of paper that doesn't stop the government from doing whatever it wants to do (a government given to us BY the constitution, for that matter).
    People should pull their heads out of their butts and realize that all the constitution gave us is government. How ya been likin' that government lately?
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    - Anonymous Coward, 10 Aug 2013 @ 4:09am
      
      Re: Re: Re:
      It is the Sworn Duty of the People to Overthrow the Chains of Tyranny when Government Fails.
      Declaration of Independence.
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- JohnG (profile), 9 Aug 2013 @ 12:11pm
  
  Re:
  gov't employees have sovereign immunity. you'd have to eliminate that first, and that isn't going to happen
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Anonymous Coward, 9 Aug 2013 @ 11:16am

you have to admit, they were fucking sneaky! however, it's no good just 'smacking down' the NSA (or any other security agency) unless those sitting on the 'oversight committees', if you can call FISC/FISA that (more like another, awkward step that is used to say 'we did what we needed to. just look! knowing full well that no one can, even if they wanted to!), get as big a smacking down as well! what really needs to happen is all those in the high ranking positions need to be retired, including those on the secret courts and never be allowed to communicate with those that take their places, let alone be back in similar positions. starting from scratch, with completely new staff that are vetted correctly is the only way to move forward
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- Michael, 9 Aug 2013 @ 11:48am
  
  Re:
  never be allowed to communicate with those that take their places
  
  The good news is, if they decided to implement your plan the NSA would be able to track this behavior!
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ShellMG (profile), 9 Aug 2013 @ 11:53am

The question nobody will answer:

WHO is going to stop them?

Congress won't. The USCOTUS has to hear a case before they act, and I doubt they'd rule favorably after the Obamacare debacle. Obama either doesn't care or doesn't know enough to care.

They will continue to do it because they CAN.
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- Anonymous Coward, 9 Aug 2013 @ 12:37pm
  
  Re:
  Secret service is a republican holy cow. Therefore there is very limited negative effect on Obama for continuing the insanity. Now, did the republicans hold on to the presidency for the last 6 years, this case would have literally exploded since the democrats would be able to put the blame on the republicans!
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Anonymous Coward, 9 Aug 2013 @ 1:02pm

This just keeps getting worse and worse as news is leaked out about the lies told and deeds done.

The people are fed up with it. Big business is fixing to get fed up with when they find out some one has slipped in the other countries outside of US reach for domestic laws and sets up equivalent net and computer services.

If there were anything that will push governments around the world to disconnect from Microsoft in favor of security, the bell has been rung loudly for attention.

Again it shows the American people can not trust their government, they can't trust their officials and politicians, to come clean. What started out looking like they were just waiting for the discoveries and news to die down has taken a life of its own. Covering it up and band aiding the programs isn't going to work. Obama's statement of the US not having a surveillance program for American citizens inside the country barely got out of his mouth before it was shown he was lying. Every new revelation just shows more complicity in trying to hide it all.

Other governments will now be putting pressure on the US over it's spying practices. This doesn't look like it will end well for the NSA. It's high time it was held accountable along with the administration and congress that enabled and kept it going.
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Anonymous Coward, 9 Aug 2013 @ 1:59pm

Nobody's upset. They have boiled the frog slow enough that it's all hunky dory, business as usual. Why do you think they put Snowden out there in the first place? To test the waters.
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Anonymous, 9 Aug 2013 @ 3:03pm

On this board people have dissed the Bible...but oh my gawwwsh, the constitution is sacrosanct!
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- John Fenderson (profile), 9 Aug 2013 @ 3:25pm
  
  Re:
  So? The bible only really matters to people who have certain religious beliefs. The Constitution matters to everybody. We have to treat the Constitution as sacrosanct because otherwise we have no legitimate government at all.
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  - Anonymous, 9 Aug 2013 @ 3:58pm
    
    Re: Re:
    "...otherwise we have no legitimate government at all". You do realize that I'm an anarchist, right?
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    - Anonymous Coward, 9 Aug 2013 @ 4:01pm
      
      Re: Re: Re:
      stir it with a stick there sport
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Jose_X, 19 Aug 2013 @ 5:07pm

Impossible to follow the Constitution?
We don't know the rule or do we?

If you honestly are trying to go after foreign threats without violating the US Constitution, might it be possible to do a query for Americans under narrow cases and yet not be violating the 4th amendment?

Or is the claim here that such is impossible or that no court is likely to agree on such constitutionality?
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