US Still Can't Figure Out What Snowden Took; What Happened To Those Perfect 'Audits'?

NSA Program Found Unconstitutional Went On For 3 Years; Started Right After Telcos Got Immunity

from the law-breaking?-what-law-breaking? dept

Wed, Aug 21st 2013 9:15am — Mike Masnick

A further delve into the latest NSA surveillance bombshell from the WSJ highlights the ridiculousness of the claims that there were "no violations" by the NSA over the years. We've been aware for a while that the FISC ruled a certain NSA program unconstitutional, but the details had been kept secret. It only came out that something was found unconstitutional a year ago, through the efforts of Senator Ron Wyden. Since then, people have been digging for more. The DOJ finally has agreed to release a redacted version of the FISC ruling after fighting it for a while, but as we wait, some more details have been coming out. Last week's Washington Post story about abuses claimed that this particular program wasn't reported to the FISC for "many months."

Yet, as we mentioned last night, the WSJ article claims that the program actually went on for three years:

For example, a recent Snowden document showed that the surveillance court ruled that the NSA had set up an unconstitutional collection effort. Officials say it was an unintentional mistake made in 2008 when it set filters on programs like these that monitor Internet traffic; NSA uncovered the inappropriate filtering in 2011 and reported it.

No biggie. The NSA just illegally collected information that clearly violated the 4th Amendment (even the rubberstamp FISC says so!) for three years. But there's no abuse. No sir. No problems at all.

Marcy Wheeler, however, puts two and two together, and notes that the "start" of this admitted unconstitutional spying was in 2008 -- which is exactly when the telcos received immunity from all such cases involving warrantless wiretapping. And, so, she points out the administration and various NSA defenders may actually be using an incredibly twisted level of reasoning to claim that this program that violated the 4th Amendment doesn't count as a "violation" because since the telcos have immunity, there's no one to "prosecute" for breaking the law. Under this twisted interpretation, the government grants telcos retroactive immunity on such surveillance, and can then use that immunity to pretend that everything it does is legal since the telcos can't be prosecuted. If that turns out to be true, it's downright evil.

And, you wonder why the key part of CISPA was to basically extend blanket immunity on privacy violations between not just telcos and the government, but basically all tech companies. The more immunity the government grants, the more "legal" all its actions become. It's sickening.

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Filed Under: 4th amendment, fisc, immunity, nsa, nsa surveillance, oversight, surveillance, telcos, violations

40 Comments

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Anonymous Coward, 21 Aug 2013 @ 9:18am

with so many people involved its totally insulting for (was it alexander?) to come out and say "Zero violations"

Of course their were violations, butt tons of violations and the bad ones were probably not even reported. I guarantee there was some monumental fuck ups that would make us all laugh and also mad though.
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out_of_the_blue, 21 Aug 2013 @ 9:33am

"basically all tech companies" includes Google and Facebook!
I'm just making explicit what Mike merely implies: if CISPA were passed immunizing "basically all tech companies", they ALL would become visibly evil.

Where Mike fights CISPA without mentioning major data sources Google and Facebook.
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Anonymous Coward, 21 Aug 2013 @ 9:36am

Re: "basically all tech companies" includes Google and Facebook!
Seems like you secretly like Google and Facebook,since so obsessed with it. Just like a closeted gay man secretly obsessed with gay sex to point they caught with a hustler.
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in the red, 21 Aug 2013 @ 9:38am

Re: "basically all tech companies" includes Google and Facebook!
Seems like you secretly like Google and Facebook,since so obsessed with it. Just like a closeted gay man secretly obsessed with gay sex to point they caught with a hustler.
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Anonymous Coward, 21 Aug 2013 @ 9:39am

Re: "basically all tech companies" includes Google and Facebook!
Why?

No reasoning here OOTB, please elaborate.
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lucidrenegade (profile), 21 Aug 2013 @ 9:42am

If we take up a collection to buy a good sturdy rope, will you hang yourself?
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Shadow Dragon (profile), 21 Aug 2013 @ 9:42am

Re: "basically all tech companies" includes Google and Facebook!
Seems like you secretly like Google and Facebook,just like a closeted anti-gay preacher is with gay sex until they're caught with a hustler.
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sorrykb (profile), 21 Aug 2013 @ 9:43am

If that turns out to be true, it's downright evil.

As far as the NSA is concerned, with each new revelation it's become more like "If it's downright evil, it's probably true."

I've never been part of the tin foil hat brigade before. I'd rather that not change, but seriously...
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Anonymous Coward, 21 Aug 2013 @ 9:44am

I remember arguing against immunity for the telecos on the Internet and with my family all those years ago.

Most people basically said I was a paranoid crazy liberal, and that telecos needed that immunity because otherwise they wouldn't help us prevent more terrorist attacks.

But of course none of those people will admit that we were right all along that immunity was a bad idea. Most of the media doesn't even acknowledge that there were objections to such things in the past when they talk about the latest NSA scandal.
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Alt0, 21 Aug 2013 @ 9:49am

Good 'ole American Ingenuity.

Well I at least give them credit that if they had chosen to be "evil", they have succeeded in becoming truly "evil".

Kinda makes me wish for the old days where "plausible deny-ability" was the most evil they could come up with.
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Anonymous Coward, 21 Aug 2013 @ 9:50am

Is this that "secret interpretation of the law" we've been hearing about?
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Anonymous Coward, 21 Aug 2013 @ 9:54am

Re:
I'll give to the cause. But can he figure out how to do us this favor? Or do you think he'll have to Google the instructions?
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Anonymous Coward, 21 Aug 2013 @ 9:59am

Re: "basically all tech companies" includes Google and Facebook!
OH NO! What could I possibly do to prevent google and facebook from spying on me?!

"well back in my day, for profit companies never, ever would have used customer submitted information for the same purposes as google and facebook, no sirree.."

welcome to the brave, new world
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Anonymous Coward, 21 Aug 2013 @ 10:05am

Why are fixes taking so long
After 9/11, the AUMF was passed within a few days. The patriot act - within a few weeks. Congress is able to act fast in cases of a crisis. Why, with all this news of abuse are we getting nothing but hearings? That's nice that they express concern and some even go as far as wagging the finger of shame. But why doesn't the Patriot Act repeal act have reps clambering to become co-sponsors? Why aren't they repealing the telecom immunity provisions? This is frustrating that they seem to be doing nothing but putting on a show of concern.

Furthermore, when the government violates the constitution, why is the worst penalty that they risk is being told to stop at some point in the future?
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Anonymous Coward, 21 Aug 2013 @ 10:08am

Re:
Tin foil hat crazies have nothing on this.

When I see a tin foil hat crazy starting to spout their nonsense I go "Well I wish that was true, since the idea that the Obama and Bush families are really reptilian agents sent from a distant star to steal our precious bodily fluids is less scary than the reality being revealed by NSA leaks."
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TheLastCzarnian (profile), 21 Aug 2013 @ 10:18am

Immunity...
I don't think Congress can pass a law that would change the Constitution. They would have to pass an amendment.
This "immunity clause" should be easily thrown out, if someone takes the effort (spelled $$).
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HappyBlogFriend (profile), 21 Aug 2013 @ 10:19am

Immediate corruption
the "start" of this admitted unconstitutional spying was in 2008 -- which is exactly when the telcos received immunity from all such cases involving warrantless wiretapping.
So they were abusing the power right from the start. I thought people were corrupted over time, but in this case, they must have been slathering to abuse their immunity as soon as it was put on the table.

But don't let this sour you on the NSA. Please trust NSA.
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arcan, 21 Aug 2013 @ 10:26am

if thou can be giveth, it can be taketh away. Retroactively remove the immunity.
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Vidiot (profile), 21 Aug 2013 @ 10:30am

Like the tree falling in the forest...
So here it is, the core syllogism for all matters NSA: Just like "a victimless crime" and "no harm, no foul", if there's no one to prosecute, then no crime was committed.

Seriously... the DOJ can't charge the NSA? What about individuals who exceed their authority? Charge them individually?
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Killer_Tofu (profile), 21 Aug 2013 @ 10:34am

When I was a kid
Back when I was young, I was always proud to call myself an American. These days not so much.

America felt like it used to stand for freedom, and a great opportunity to make things better. These days it feels more like I am telling other countries not to bow to the US' paid off reps who just want to push policies globally that benefit the few rich people and those in power. Now it feels more like our government itself is the best ally the terrorists could have ever hoped for. Terrorists want to instill fear and get people to live in terror. They hated us for our freedoms. Apparently our government does to.

Taking most of the chances they get to degrade the educational system or hinder it (the less educated we are the easier we can be controlled). Constantly spewing lies about the threats around every corner everywhere you go both online and off. When the entire government system is acting as the terrorists, who is there to protect us from them?

They obviously don't care about the constitution anymore and are trying to work around it every chance they get. "Legal" monitoring to evade the 4th. Trying to redefine what a journalist is so they can beat people up for trying to use the 1st.

I have spoken out to those who would listen about why a bunch of bad laws aren't needed, and why people shouldn't help promote bad laws because of temporary emotional lapses. Seems the country got bad anyways. I just am not sure how to fix it at this point. It is just such an anti-American group running the American government right now.

I used to be proud to be an American, but right now our government is atrociously bad on a lot of fronts. I don't feel pride anymore, but more sad for the world at large.
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Anonymous Coward, 21 Aug 2013 @ 10:56am

Re: "basically all tech companies" includes Google and Facebook!
This was pointed out here at the time but thanks for reminding us I guess?
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Anonymous Coward, 21 Aug 2013 @ 10:57am

Re: When I was a kid
When I was a child, I talked like a child, I thought like a child, I reasoned like a child. When I became a man, I put the ways of childhood behind me.
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Anonymous Coward, 21 Aug 2013 @ 11:02am

Re: "basically all tech companies" includes Google and Facebook!
basically all tech companies" includes Google and Facebook!

Boy, thanks for clearing this up!

Ass.
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Anonymous Coward, 21 Aug 2013 @ 11:06am

No one to prosecute?
Bullshit! Prosecute THOSE RESPONSIBLE. Start with Clapper and Alexander then work your way down.
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Anonymous Coward, 21 Aug 2013 @ 11:20am

We need a Department of Accountability as part of the Legislative branch and reports directly to congress. They would monitor all the the Executive branch's activities, what the Inspector Generals etc. are supposed to be doing.
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sinizt3r (profile), 21 Aug 2013 @ 11:43am

Re: Immediate corruption
It actually started with the patriot act but has grown substantially since
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Anonymous Coward, 21 Aug 2013 @ 11:56am

GODWIN incoming
Am I wrong in thinking that the NSA are the modern-day Gestapo?
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Anonymous Coward, 21 Aug 2013 @ 12:40pm

you're not trying to insinuate that once the telcos were free to do as the security agencies demanded, they did so with no thought for anything/anyone else, are you? perhaps it's time to review all these laws that give immunity to certain parties when they do whatever they are told to by the government whereas before they could have been held criminally liable. rather strange how in that split second, after the government had managed to get the law changed, it all went to rat shit, eh? you dont think that the laws were changed on purpose, do you? just so the NSA and others could fulfill the master plan of spying on everyone they felt like, regardless of where they were. seems a little bit of a coincidence, doesn't it?
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NSA's Slogan, 21 Aug 2013 @ 12:51pm

it's downright evil.
NSA - it's downright evil. That really sums it up perfectly.
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Guardian, 21 Aug 2013 @ 1:12pm

who gave them immunity
bush ...nope ...O.B.A.M.A.
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Guardian, 21 Aug 2013 @ 1:13pm

who gave them immunity
bush ...nope ...O.B.A.M.A.
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Anonymous, 21 Aug 2013 @ 1:44pm

Re: Re: "basically all tech companies" includes Google and Facebook!
They seem to keep hiding in the darkness. As soon as a light tries to come close they try to destroy the bulb so the darkness remains. Apparently even the shadows show too much.
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Jay (profile), 21 Aug 2013 @ 2:00pm

Re: GODWIN incoming
No. Why do you think Nixon did all the things he did?
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Kal Zekdor (profile), 21 Aug 2013 @ 2:59pm

Re: Why are fixes taking so long
Are you in all seriousness asking why those who spearheaded rampant government encroachment on civil liberties such as the PATRIOT act, which were hastily and surreptitiously passed with a distracted and overly emotional public, are showing no inclination towards repealing the acts which gave them so much power, just because the blindfold around the public's eyes named "terrorism" has slipped a little?

I'm inclined to give you the benefit of the doubt and assume your post was rhetorical sarcasm, but I have to be sure.
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Anonymous Coward, 21 Aug 2013 @ 3:06pm

The purposeful deceit and intentional lies are starting to come out. Just about the time you think it's bad, you get a new definition. I believe the rabbit hole just keeps on going and we're just at the door.

More and more this points to things like the immunity for telcos was needed because most likely someone discovered. Someone was going to reveal this information or more probably they were scared they were going to be exposed for these programs already going on. So immunity for the telcos were required because the telcos were afraid they were already in the trap and needed release to continue to co-operate and not get sued.

There is no question in my mind the NSA needs it's authorization and it's budget terminated, then new laws need to be set up making the individual responsible for ordered misdeeds. Those now at the head need be in in front of a court to be held accountable, just like Manning, for their actions. It needs to start with an impeachment and walk right on down the line of everyone in the line of responsibility or in the line of enabling this to happen.

Senators Wyden and Udal were correct about what would happen when the American people found out!
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Anonymous Coward, 21 Aug 2013 @ 3:20pm

Ok, so how did I get put on the moderation log? Two consecutive posts, in two different articles, with no links?
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Anonymous Coward, 21 Aug 2013 @ 3:23pm

The Truth finally comes out. Wow!
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Kal Zekdor (profile), 21 Aug 2013 @ 3:24pm

Re: Immunity...
Congress alone cannot pass an amendment to the Constitution, it can only propose them. After proposal the amendment must then be ratified by 75% of States.

Fun fact: It's possible to pass an amendment without any involvement of Congress at all. 2/3 of States have to apply to hold a National Constitutional Convention. It's never happened, but maybe we need to start seriously considering it.

Wikipedia article on the subject.
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Pragmatic, 22 Aug 2013 @ 7:33am

Re: Re: "basically all tech companies" includes Google and Facebook!
The crazy cat/copyright lady has finally jumped the shark; announced that Google, et al, are a front for the NSA in the comments of another article.
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Killer_Tofu (profile), 23 Aug 2013 @ 7:26am

Re: Re: When I was a kid
That is far more profound than it appeared at first glance.

Overall, I completely agree.
It is just a little sad though that they are acting the way they are.
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