Appeals Court Affirms NSA Surveillance Can Be Used To Investigate Domestic Criminal Suspects
from the spooks-in-the-federal-cop-shop dept
The Seventh Circuit Court of Appeals confirms what's already known about the NSA's domestic surveillance: it's not just for terrorism.
The NSA collections -- done in the FBI's name -- are supposed to only gather info related to international terrorism. But that requirement has been phased out. The NSA "tips" a certain amount of data to the FBI for its own use and it has been shown in the past to do the same for the DEA, which it then instructs to obscure the origin of its info.
An opinion [PDF] just released by the Appeals Court, says basically the same thing: although the NSA's surveillance is supposed to be used to sniff out terrorists, there's nothing in the law that prevents it from using its collections to go after criminals.
Gregory Turner was convicted of conspiring with Prince Asiel Ben Israel (both US persons) to provide aid to Zimbabwean "Specially Designated Nationals" -- in this case a group working to block the institution of more democratic processes and procedures in that country.
Turner moved to suppress the evidence, claiming that the government's use of a FISA order to obtain information on his activities violated the NSAs foreign intelligence directives. But the court finds the directive does not limit FISA warrants to terrorism only. The government only needs to "reasonably believe" a target is an "agent of a foreign power."
The government informed Turner it had gathered evidence using FISA-authorized surveillance. Then it refused to turn over information to him with regards to its activities. From the redacted, terribly-reproduced decision:
On February 27, 2014, Turner filed a motion for disclosure of FISA materials and motion to suppress evidence obtained or derived from FISA. The government responded to these motions with a classified brief and a sealed appendix submitted ex parte to the district court and redacted, unclassified version served to Turner. Additionally, the government filed a "Declaration and Claim of Privilege" by the Attorney General that declared, "it would harm the national security of the United States to disclose or hold an adversarial hearing with regards to the FISA materials…"
Both motions by Turner were denied. These denials have been upheld by the Appeals Court. Turner claimed the government failed to meet its probable cause requirements for the FISA warrant and also violated his First Amendment rights with its surveillance.
Much of the court's reasoning is redacted but it does have this to say about Turner's assertions.
Turner contends that "FISA appears to require the communications subject to surveillance of a United States person must related directly to activities involving international terrorism as defined in FISA." Turner misstates the law. FISA is not limited to activities involving international terrorism. FISA authorizes surveillance and searches based on probable cause that the target is an "agent of foreign power," which relates to "any person" engaged in certain activities… on behalf of a foreign power, including "clandestine intelligence gathering activities" and "enter[ing] the United States under a false or fraudulent identity… or while in the United States… assum[ing] a false or fraudulent identity." These activities are listed in addition to "international terrorism."
Not only that, but the laws governing FISA-ordered activities were loosened in 2008 to encompass all sorts of criminal activity not related to foreign powers or international terrorism.
FISA, as amended in 2008, "eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses." [...] [T]he amended FISA statute "does not oblige the government to demonstrate to the FISA court that its primary purpose in conducting electronic surveillance is not criminal prosecution."
As for Turner's First Amendment claims, the court finds the activities he engaged in were not covered under the First Amendment, no matter how "right" Turner may have believed undermining the installation of a democratic government was. As the court sees it, the government established Turner was an "agent of a foreign power," something that strips away protections normally afforded to political activity. Or maybe just political activity the US government doesn't approve of.
Either way, it's very clear FISA court orders can be used to engage in domestic surveillance purely to investigate criminal activity, something the NSA hasn't exactly been forthcoming about. As long as a foreign power is somehow involved, the NSA and the FBI are interchangeable surveillance pieces, even though one of them is assumed to be mostly uninvolved in domestic surveillance of US persons.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 7th circuit, crime, domestic, fisa, gregory turner, nsa, surveillance, terrorism
Reader Comments
Subscribe: RSS
View by: Time | Thread
Text of the law is irrelevant here
[ link to this | view in thread ]
I propose the following law:
Just that. Discuss.
[ link to this | view in thread ]
Re: Text of the law is irrelevant here
[ link to this | view in thread ]
Re: I propose the following law:
[ link to this | view in thread ]
Re: I propose the following law:
Next?
[ link to this | view in thread ]
I wish one serious person with a pair of balls....
While the government continues to ignore the constitution so blatantly, how is it NOT a clear indication that the Government itself seeks to incite a civil war against its own people? Why are the agencies themselves not being brought under charges?
The American Government has made it damn clear that IT sees itself as American and NOT "The People".
[ link to this | view in thread ]
[ link to this | view in thread ]
What about the Sixth Amendment?
The 6th Amendment says nothing about "parallel construction".
Either the NSA can no longer be secret, or the 6th Amendment is gone; you can't square this circle.
[ link to this | view in thread ]
Re: I wish one serious person with a pair of balls....
IIRC, the US cannot use military personnel to enforce domestic policies. It seems to me that the mere act of looking for unlawful cyber-crimes is itself an enforcement of said crimes.
[ link to this | view in thread ]
Smile when we shoot you, pardnah
As per The Treasure Of The Sierra Madre: We don need no stinking constitution. Wha for? We have de big hoses, horses, guns, and big singing, swinging Richards of of personhood.
What if there was an election and nobody showed? CNN etc. would fake a script, and call it breaking news (rhymes with noose).
[ link to this | view in thread ]
But yet when mentioned years back, after reading The "Patriot" Act, and predicting that this would be used against Us... I was told it/I was just a conspiracy theory/Theorist. The latter may be true but the former has come to pass.
[ link to this | view in thread ]
Re: Smile when we shoot you, pardnah
As I was writing my comment yours was right above and I thought the first sentence said:
You cannot reason when reason trumps Trump.
I think I need more coffee.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: I propose the following law:
The courts were our last hope. The executive branch, Congress and the Fourth Estate have long been beyond having even a facade of interest in a democratic republic, and the now it is extraordinary news when a judge dimly recalls that there was a document called the Constitution or the Amendments thereof.
[ link to this | view in thread ]
Re: Re: I wish one serious person with a pair of balls....
[ link to this | view in thread ]
Cruel and Unusual
Apparently freedom is just another word for living your life under the unblinking eye of the total surveillance state.
In a rational and just world a person being forced to fund (via taxation) their own surveillance by pliably supine government stooges would be considered a cruel and unusual endeavor.
Nice job in protecting/defending the Constitution you worthless tax feeding federal court jesters.
[ link to this | view in thread ]
Re: Re: Re: I wish one serious person with a pair of balls....
The act explicitly names Army & Air Force, therefor you can instead use the Navy. So if they want to use Force against Citizens all they need to do is create a new Arm Service call the "FaC" (fuck all citizens) and arm them to the teeth, voila... now you can deploy a force equal to that of a war machine against the people...
OR
You can just give the police Military Grade gear and not even have to worry about the fucking name of shit and tell them to go and flash bang babies faces when ma-ma hits a roach for the glaucoma.
[ link to this | view in thread ]
Re: Re: Text of the law is irrelevant here
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: I propose the following law:
No, there's still one possibility left. No wonder they want to disarm the citizenry.
[ link to this | view in thread ]
Re: I wish one serious person with a pair of balls....
Get ignored.
Feel better now?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: I propose the following law:
[ link to this | view in thread ]
[ link to this | view in thread ]