DOJ Trying To Hide Secret Interpretations Of The Law Because You'd All DIE!!!!

from the secret-laws dept

It's kind of sad that anyone could possibly think that it's okay for the government to have secret interpretations of the law in a free and open society. "The law" is more than just the legislation itself, but the collection of caselaw and interpretations, combined with the legislation, that make up the overall "law." If some of those interpretations are kept secret, then how can the public obey the law? The answer is that they can't -- which is why secret interpretations shouldn't be allowed. The Justice Department, however, prefers to keep some things secret, and it's asking the court to dismiss a lawsuit filed by the EFF seeking to find out how the Foreign Intelligence Surveillance Court is interpreting parts of the FISA Amendments Act, after it was revealed (late on a Friday) that the court found at least one situation in which the feds collected info in violation of the 4th Amendment.

The EFF figured the public should know the details. The DOJ on the other hand... would rather the public stay in the dark. The DOJ actually suggests that merely revealing the fact that they got slapped down by the FISC provides enough "balance."

Last summer, in an effort to strike the right balance between government transparency and the protection of critical intelligence activities, the government declassified four statements concerning its activities pursuant to Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) Amendments Act of 2008. Not content with that disclosure, Electronic Frontier Foundation (“EFF” or “Plaintiff”) submitted a Freedom of Information Act (“FOIA”) request seeking additional information related to two of the declassified statements, specifically, that on at least one occasion the Foreign Intelligence Surveillance Court (“FISC”) “held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment” and that “on at least one occasion the FISA Court has reached th[e ] conclusion” that “the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law.”

And thus, we should be satisfied with that and want no more. Also, you don't want to know what kind of hell would break loose if the DOJ had to reveal how the law was actually interpreted. I mean, we'd all die or something very close to it, judging by the DOJ's language.

The government has determined that disclosure of the information withheld from Plaintiff could result in exceptionally grave and serious damage to the national security. Plaintiff obviously cannot contend otherwise. The Court accordingly should defer to the government’s determination in this case, uphold the Department’s withholdings, and grant this motion.

Basically, we've determined that you're all better off not knowing this information, and you should trust us because it's not like we have any incentives to lie (though, of course, we do). Also: boo!

Thankfully, more people are realizing just how ridiculous this is. The Washington Post has put out an editorial slamming the DOJ for its position:

Yet, as the amicus brief points out, the OLC’s opinions aren’t some intermediary step toward establishing the final legal interpretations for the executive branch. In general, they are the final legal interpretations for the executive branch. The FBI could choose to exercise the authority that the OLC said it had — or not — but Congress, the judiciary and the public at large all deserve to know what the executive branch thinks it can do, once it issues a conclusive opinion.

In other words, it's not right that the government can determine its own secret interpretations of the law, and it's time for the courts to put a stop to this.

Filed Under: doj, fisa, fisc, secret laws, spying, surveillance
Companies: eff

US Government's Failure To Protect Public Privacy Is Driving Business Overseas

from the all-for-what? dept

As we've covered over and over again, the US government has made it clear that it wants access to your data. With things like the FISA Amendments Act, ECPA and various other laws, law enforcement plays the FUD card repeatedly, insisting that it needs to be able to go in and see data to "protect" the public. There's very little basis to make this claim. And, worse, by decimating online privacy, the US government may actively be driving business outside of the US to foreign countries that have stricter privacy laws that actually protect data from government snooping.

Many foreign companies are converging toward a common argument for why they’re better than their American competitors. It’s not that the foreign-made technology is better, more resilient, or more ubiquitous, nor that the foreign companies are more innovative or better managed. They compare not their businessmen but their politicians. They argue simply that American laws undermine any American product — that these laws fail to protect privacy of personal or business information of all users. This argument works partly because consumers claim to “avoid doing business” with companies they don’t trust to protect their privacy.

Basically, because law enforcement believes it needs to build a much bigger haystack as it searches for needles, we're handing other countries a key selling point in setting up services to compete with US services: "you can't trust any service based in the US, because it's subject to government surveillance." That may be a bit of an exaggeration, but I know I've see a number of companies lately who advertise the fact that they're not based in the US to suggest that they're more secure and can keep your data private. This is not the reputation the US needs or wants right now.

Filed Under: 4th amendment, economic impact, ecpa, ecpa reform, fisa, privacy, us government

EFF Gets Secret Interpretation Of FISA Spying Law... And It's Almost Entirely Redacted

from the but-not-completely dept

We've talked about the absolute ridiculousness of having a secret interpretation of a US law on surveillance such that the law actually means something different than what most people (including the politicians voting on it) think it means -- and yet the secret law remains in place for entirely secret reasons. The EFF, as part of an ongoing dispute over all of this, had submitted a Freedom of Information Act (FOIA) request concerning some testimony on that secret interpretation, and it got back a "relevant" document... which as almost entirely redacted. Here's a sample page. Much of it is blocked as "non-responsive" but the "responsive" section is basically entirely blacked out. The only text of the entire document that's available (other than the cover page) is:

The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this manner.

It's ridiculous to continue arguing -- as Senator Dianne Feinstein has done repeatedly -- that there is no secret law here. She's being deliberately misleading, confusing "the law" with "the legislation." The legislation is the text as written by the legislature, but "the law" includes specific rulings by courts on the legislation. The legislation may be public, but the law is not when the rather important interpretations of the legislation remain completely redacted.

Filed Under: fisa, foia, redacted

There's A Secret Reason Why The Government Has To Keep It Secret How Many Americans It's Spying On Without A Warrant

from the because...-terrorism dept

The folks over at the CATO Institute have put together a short five minute video on the rush by the federal government to renew the FISA Amendments Act, with no changes, which effectively has sanctioned warrantless wiretapping on millions of Americans. Even though the plain language of the bill suggests it only should be used on foreigners, it's become clear that thanks to weasel language in the bill, and a "secret" interpretation by a secret court, the definition of "targeting" foreigners has been interpreted to mean any communication that might possibly somehow shed light on some sort of illegal activity that might possibly maybe involve foreigners sometimes in some manner. As such, it seems likely that the NSA, in particular, has used this bill and its secret interpretation to sweep up huge databases of information about Americans, even as most people (including many in Congress) believe the bill only is used to spy on foreigners. The video is especially worth watching for the brief segment involving Senator Dianne Feinstein, who was the main supporter of extending these rules, responding to Senator Wyden's amendment that sought to have the NSA provide an estimate -- just an estimate -- of how many Americans had their information swept up by the NSA in its dragnet. Feinstein insists that there's a secret reason for why this information needs to be kept secret -- and promises to wave the piece of paper around (if someone hands it to her) that contains the secret reason that she can't tell us.

So, if you're keeping track at home, we've got a bill with plain language that most people incorrectly believes means that it only involves collecting data on foreigners. But thanks to a secret interpretation, it's almost certainly being used to collect tons of data on Americans, which is being kept secret. Furthermore, the NSA claims that it must keep secret whether or not it even has an estimate of how many Americans' have had their data sucked up by this secret program because of, well, a secret reason.

Does that actually make anyone feel safer?

Filed Under: dianne feinstein, fisa, fisa amendments act, secrecy, transparency

People Freak Out About Privacy On Facebook, But Ignore Widespread Government Surveillance

from the sad dept

Reason has a great (if disappointing) post noting the very different reactions from both the press and the public to silly and exaggerated stories about privacy issues around Facebook as compared to the Senate reapproving the FISA Amendments Act, which has almost certainly allowed massive surveillance of and collection of data and communications from millions of Americans. You'd think the latter would deserve more attention, but nope.

There's currently nothing on the New York Times web site about the votes (either yesterday's or today's). The Associated Press wrote a story about the House's vote in September but nothing yet from yesterday or today. The Washington Post did post a story this morning. A Google news search will land hits with mostly tech or web-based media outlets.

Compare the lack of response to the way people react to privacy breaches connected to Facebook or Twitter. Media outlet after media outlet carried reports about a private picture of Randi Zuckerberg, Facebook founder Mark Zuckerberg's sister, accidentally being made public somehow through social media channels. And how many of your Facebook friends posted that silly, pointless "privacy notice" on their walls?

The post, by Scott Shackford, notes that you can't just blame the media for failing to cover the FISA Amendments Act votes -- they're just responding to what the public wants. And because Facebook seems more "real" to people than the NSA recording all their info, it seems to hit closer to home, even if one is a real abuse of privacy, and the other isn't.

The degradation of the Fourth and Fifth Amendments is an academic or theoretical matter for so many people and often lacks a strong human narrative to draw public outrage. Indeed, the very secrecy behind the application of federal domestic wiretapping has made it impossible to introduce a human narrative. We do not even know how many Americans have been spied on due to these rules (which was what Wyden's amendment was trying to fix). Like our foreign drone strikes and indefinite detention laws, the public's distance from the actual rights violations (and government-fueled fears of acts of terrorism) is a useful barrier for the state to get away with expanding its authority beyond the Constitution's limitations without significant voter pushback.

Whereas, just about everybody's on Facebook. Facebook's privacy systems affect them directly every day, and they see it. So Americans are furious that Instagram might sell their photos, while shrugging at what the federal government might do with the exact same data.

As he points out, this is why it's been so important for the government to keep the details of its spying program a secret. If people realized that the government really was sweeping up all sorts of data, they might realize that this directly impacts them too. But, that's all secret.

Filed Under: comparison, fisa, nsa, privacy, surveillance
Companies: facebook, instagram

...And FISA Is Renewed, With All Its Problems Still Intact

from the no-surprise dept

After three key amendments that would have brought some oversight to the NSA's ongoing spying program were rejected last night, and the final such amendment was rejected this morning, there was little doubt that the Senate would move ahead with renewing FISA in its current and highly problematic form. Immediately following the rejection of the Wyden amendment, that's just what they did, voting 73-23 to extend FISA for another five years.

There was never really any chance of FISA not being renewed, but the proposed amendments would have added vital checks to the law, most of which seemed to be just common-sense—such as requiring a report to Congress on the program's privacy impact. With all these changes rejected, the renewal means another five-year virtual carte blanche for the NSA to collect data on US citizens under a secret interpretation of the law that the public is not allowed to see, without even providing an estimate on how many Americans have had their privacy violated.

Filed Under: 4th amendment, faa, fisa, nsa

Senate Rejects Final FISA Amendment, Lets Spying Program Stay Shrouded In Secrecy

from the what-4th-amendment? dept

Yesterday, we covered the rushed last-minute debate over the FISA Amendments Act, after which three critical amendments that would have brought some accountability to the NSA's spying program were all struck down. This morning, the fourth and final such amendment from Senators Wyden and Udall was also rejected, in a vote of 52 to 43, meaning FISA will now move forward in its current (and likely unconstitutional) form.

What was in the Wyden-Udall amendment? Even according to the White House's leaked talking points, which were strongly opposed to the amendments, it sounds like something that just makes sense:

What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.

As Wyden has pointed out in the past, and re-iterated during debate this morning, not only is Congress unable to get an estimate from the NSA on how many American citizens have been spied on through FISA, he is unable to even get a yes or no answer as to whether such an estimate exists. Considering FISA is supposed to be subject to Congressional oversight, this seems like a pretty big problem, and one worth fixing before renewing the program for another five years. Instead, the Senate voted to wash its hands of the issue, despite solid evidence that the NSA is engaged in widespread spying on US citizens and at least one known instance in which the 4th Amendment was violated. So much for checks and balances.

Update: As expected, immediately following the rejection of this amendment, the Senate voted to extend FISA for another five years.

Filed Under: faa, fisa, nsa, ron wyden

LEAKED: White House's Bogus Talking Points On Why Senate Should Trample The 4th Amendment

from the lovely-stuff dept

Want to know the White House's key propaganda lines for refusing to allow proper oversight into how the NSA is spying on us all? Well, sit back and read on, because the White House's "talking points" on why the Senate should reject four key amendments to try to roll back some of the excesses of the broad and massive secret program to collect tons of data on Americans, has been leaked. First, some background.

As we noted yesterday, there was a "debate" in the Senate concerning the FISA Amendments Act renewal, and four specific amendments that some Senators tried to add to it to make the renewal less problematic. If you haven't been following this whole mess, you can read back through our FISA Amendments Act stories here, but the short version is that this is the bill that "legalized" warrantless wiretapping -- and which (it has since been revealed) is likely being used by the NSA to collect reams of data on Americans, despite the bill's plain text suggesting that it can only be used on foreigners. At issue is that the FISA Court has apparently issued an "interpretation" of the bill, which allows for a very broad reading of the text -- so broad, that it likely contradicts what most people believe the bill says. Only a small group of people know what this secret interpretation is, and while sitting Senators and Congressional Reps can find out, most do NOT have staff members with the necessary clearance to explain it to them. For this reason, most of the people voting on this bill have no idea how it is being used, and sometimes argue that it is not being used in ways that it is almost certainly being used (i.e., to scoop up data on many Americans without warrants). These provisions -- the FAA for short -- were set to expire last year, but were renewed for one year, ostensibly to allow for "real" debate. Of course, despite having a whole year, no debate appeared, and instead we got yesterday's charade.

Four specific amendments to try to fix (or, at least, to minimize the damage) were proposed. The EFF has a pretty quick rundown of the four proposed amendments. The White House has been urging the Senate to reject all of them and to extend the FISA Amendments Act for five more years with no questions asked. Three of the proposed amendments were already rejected last night. This morning, a short debate and then a vote will progress on the last, the Wyden-Udall amendment. Even though the other three have already been rejected, we'll explore the talking their points too, but let's start with the talking points on the Wyden-Udall amendment. Here's the White House summary:

What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.

That's a fair assessment and seems perfectly reasonable. Here's the EFF on why this is important:

Sen. Ron Wyden, one of the most ardent defenders of civil liberties in the Senate, has been asking the NSA for months for information on how the FISA Amendments Act has impacted Americans.

The NSA has so far refused, yet, as the New York Times reported in 2009, we know the NSA was still intercepting domestic communications in a "significant and systematic" way. We also know the secret FISA court ruled, on at least one occasion, that the government had violated the Fourth Amendment when conducting surveillance under the FAA. Yet the NSA has rather unbelievably claimed releasing the number of Americans whose privacy has been violated would violate those same Americans' privacy.

Ron Wyden's amendment would force the NSA to come clean and give a general estimate of how many Americans have been affected by this unconstitutional bill, and finally give us information Americans deserve.

In addition, another Wyden amendment would clarify that the acquisition of American communications is prohibited without a warrant. Sen. Wyden has accused the government of conducting "backdoor searches," whereby the government collects communications of foreign individuals talking to Americans, but later goes back into the government's database of intercepted communications and reviews the Americans' communications. Sen. Wyden hopes this clarification to the law will help guard against further intrusive spying on American communications.

So what are the talking points from the White House for why this is a bad thing?

• The Administration opposes this amendment. The goal of this amendment is to obtain an estimate of the number of U.S. persons' communications that may have been collected. Two independent inspectors general have determined, and reported to Congress, that it is not feasible to provide actual numbers or estimates. They also found that an effort to provide such numbers by deliberately trying to identify U.S. person information would adversely affect the privacy of any U.S. persons whose incidentally collected communications may exist within the collected data.
• Representatives of the Intelligence Community have briefed the Judiciary and Intelligence Committees in more detail as to why it is not feasible to provide such numbers or estimates and stand ready to answer questions from other Members in a classified setting.
• FAA contains significant privacy protections for U.S. persons, to include extensive reporting to Congress to allow Congress to assess the privacy impact of FAA on U.S. persons.

Yes, the same bullshit we've heard before. Telling Congress how many Americans the NSA spied upon using the FAA (despite the NSA only having a mandate to watch foreigners) would somehow violate the privacy of those Americans. That is, to put it simply, insane. What they almost certainly mean is that they've collected such a large treasure trove of information, much of which they haven't actually gone through, that to estimate how many people's info was collected would require actually looking at all that data collected, which they're not supposed to do. This, still, is insane -- as it basically reveals the fact that, contrary to what most people think, and contrary to the plain language of the bill, the NSA is almost certainly using the FAA to scoop up communications on huge swaths of the American public. This is why Senator Wyden keeps insisting that the public -- and members of Congress -- would likely be shocked to find out the truth here.

The idea that it is "not feasible" to come up with a number is silly, however. There are ways to estimate these things, and it's nonsense that they won't provide an estimate. It certainly would not compromise security to admit that. It might just compromise the fact that the NSA and the administration are abusing the FAA to spy on tons of Americans.

The "briefing" members bit is also fairly bogus. We're talking about the interpretation of a public US law. That shouldn't require a Senator to go into a secret room to get a secret briefing. But, more importantly, as mentioned, most Senators simply do not have staff with the necessary clearances for such a briefing -- so while a member could take the initiative to learn this info, they are both unlikely to actually do so and if they do, unlikely to have an expert on hand who can help explain what it all means.

Finally, the argument that there are "significant privacy protections" is belied by the fact that the NSA has already been called out for violating the 4th Amendment under this act at least once. That, alone, should call for further scrutiny, but supporters of the FAA are twisting this around to claim that "the system works." As Julian Sanchez notes, the existing oversight might catch accidental abuse, but cannot and will not catch systematic abuse, which is what it appears is happening.

So these "talking points" hardly address the problem, and only serve to further mislead, as the White House looks to protect its own administration's domestic surveillance activities. When President Obama was originally running for office in 2008, he campaigned against these provisions (before eventually voting for them). Apparently, that campaigning was a flat out lie. Now he's not only supporting the provisions, his administration is being willfully misleading concerning what they mean.

Moving on to the (already rejected, but still important) Merkley Amendment. This one involved requiring that secret FISA Court rulings that interpret the FAA be made public (in redacted form, if necessary). This seems eminently reasonable. Who could be against that? Well, the White House, for one. Here's why:

• We oppose this amendment. The Executive Branch works diligently to ensure Congress is fully informed of the intelligence collection operations under FAA, notwithstanding the need for the Executive Branch to carry out certain sensitive intelligence activities in a classified manner.
• As part of Congress' intensive oversight of FISA activities, the Intelligence and Judiciary Committees receive, in classified form, all FISA Court opinions that include a significant interpretation of FISA provisions.
• We have committed to reviewing FISC opinions for release to the public with necessary redactions to protect national security equities and that effort is ongoing.
• This process must, by necessity, be undertaken with great care. In many cases, classified information is so intertwined with the legal analysis that redacting the classified information leaves a document that lacks any meaningful analysis. Because the Executive Branch is already undertaking a review of the FISC opinions for possible public release, we believe this amendment is unnecessary.

This is completely bogus, again. As we noted yesterday, going against this amendment is like arguing that we should all be able to interpret the Constitution with just the document itself, and all Supreme Court rulings that work out the nuances and interpretations should be kept secret. The idea that the Executive Branch makes sure that Congress "is fully informed of the intelligence collection operations under the FAA" is both laughable and meaningless at the same time.

Just this very debate -- and this very document -- prove that the White House isn't about keeping Congress "fully informed" but about pulling the wool over their eyes with misleading statements and kinda/sorta true in the letter, but bogus in the spirit, arguments. Members of Congress have flat out said that the FAA does not impact Americans' communications at all, when that it's known to be absolutely false. Also, the fact that the administration may provide classified briefings to Congress is, again, besides the point. We're talking about allowing the public to understand the secret interpretation of a law that impacts many Americans directly (and in which that interpretation is almost certainly contrary to the plain language and public belief about the bill), and the White House falls back on this "well we'll tell you in secret" argument?

The idea that the administration has committed to reviewing FISA opinions for public release is equally laughable. This administration has been one of the most secretive on record when it comes to exposing this kind of information, all while patting itself on the back as being the most transparent.

Moving on, we have the rather basic Leahy Amendment that shortens the date on which this extension expires from 2017 back to June 1 of the 2015, to basically move in the walls for the next time we'll have this debate in the closing days before "OMG TERRORISTS WILL DESTROY US ALL!!!@!@" again. Rather than simply punting the ball on this issue as far down the field as possible, Leahy is trying to force at least some review within the term of Obama's presidency, rather than long after it's over. This, too, was voted down so the longer timeline stays in place. The White House is pleased, for a whole bunch of completely bogus reasons:

• We support the House passed sunset date of 2017 and oppose any effort to shorten the sunset date to 2015. The extensive congressional and judicial oversight and the strong track record of compliance supports an extension longer than, not shorter than, the original authorization.
• Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.
• Frequent Congressional and public debate on intelligence authorities poses a greater risk of inadvertent disclosure of classified information.
• No additional reporting requirements are necessary. Section 702 of FISA is a well calibrated statute that provides for ample oversight by all three branches of government. This oversight framework ensures robust protections for the privacy and civil liberties of U.S. persons.

This one should just make people angry. Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they're confused by those issues, then they shouldn't be in this job. Period.

That second point is the real doozy. Basically, the White House doesn't want this debate, because Senators who know what kind of scam they're pulling might (*gasp*) accidentally reveal too much. So, let's just not talk about it at all. And let the NSA keep abusing it. Because, otherwise, we might actually find out about the abuse. As for the "oversight" claim, I think we've already covered just how completely bogus that claim really is.

Finally, there's the Paul amendment, which serves to reinforce the basic principles of the 4th Amendment, in reiterating that all communications are subject to the 4th Amendment's limitations on searching. Currently, many in law enforcement rely on some really questionable precedents to argue that people don't really have an "expectation of privacy" in their email. It's disingenuous in the extreme. This amendment got voted down by a whopping 79 to 12 votes. I'm sure that pleased the White House, who argued the following:

• We strongly oppose this amendment as it will effectively repeal the FISA Amendments Act and other federal laws by requiring a probable cause determination to obtain information on our foreign adversaries located overseas. As such, it would overturn years of federal law.
• This proposed amendment would severely limit the effectiveness of law enforcement, authorities at all levels of government. For example, Governments rely on legal tools such as grand jury subpoenas. The use of such tools would be prohibited under the amendment if that information is drawn from almost any system of records.

In other words, they're admitting that the FISA Amendments Act clearly tramples the 4th Amendment and allows for widespread surveillance of Americans without a warrant. Also, the Constitution isn't about making life easier for law enforcement. It's about the opposite. It's specifically about making it more difficult for law enforcement, because that's how a free society functions, by telling its law enforcement officials that they can't just snoop on everyone, but need real oversight in the form of a warrant. So to argue that this might make the NSA's job a bit harder isn't just not compelling, it's not even a legitimate reason, because it's arguing that the government should, effectively, be allowed to do whatever the hell it wants if it "makes law enforcement's job easier."

It's clear that the FISA Amendments Act is about to be extended, and the White House, even with completely bogus talking points, will prevail. But, reading through these talking points is just highlighting the depths to which our government will stoop to make sure they can continue to trample the basic principles of the 4th Amendment.

Filed Under: 4th amendment, fisa, fisa amendments act, jeff merkley, pat leahy, politics, privacy, rand paul, ron wyden, talking points, white house

Senate Finally Holds Weak 'Debate' On FISA Amendments Act... But Terrorism!

from the and-therefore-we-shouldn't-even-know-what's-going-on dept

While some in the Senate tried to skip over debate of the likely unconstitutional FISA Amendments Act, the Senate finally held a rushed and scripted "debate" today, which did very little to actually explore the issues (and the Senate Chamber was mostly empty during the "debate"). Senators Ron Wyden and Jeff Merkley did their best to raise significant issues, but Senator Dianne Feinstein kept shutting them down with bogus or misleading arguments, almost always punctuated with scary claims about how we had "only four days!" to renew the FISA Amendment Acts or "important" tools for law enforcement would "expire." It turns out that's not actually true. While the law would expire, the provisions sweeping orders already issued would remain in place for a year -- allowing plenty of time for a real debate.

Furthermore, Feinstein continued to mislead (bordering on outright lies) about the FISA Amendments Act. While some of the proposed amendments focused on finally forcing the secret interpretation of the FISA Amendments Act to be disclosed, Feinstein held up the text of the bill and insisted there "is no secret law" and that "the text is public." That assumes that "the law" and "the text of the legislation" are one and the same. They are not. As Julian Sanchez notes, imagine that Supreme Court rulings were all classified, how would you interpret the Constitution? You could make guesses, based on what the law said, but without the court's rulings, you would not know what that meant in practice. That's exactly the situation we have with the FISA Amendments Act... and it's made even worse by the fact that those who have seen the still-secret interpretation -- such as Senator Wyden -- have made it clear that its quite different than what most people think the law says.

Even more ridiculous is that the text of the FISA Amendments Act has been set since September. There's been plenty of time to actually debate these issues. Hell, last year's renewal for just one year was conditioned on the promise from the Senate that there would be debate this year. Yet they wait until December 27th to hold this fake "debate" with Feinstein spreading FUD up and down about how not renewing this for another five years means the terrorists win? This is a really shameful display of Congress caving to law enforcement's almost certainly unconstitutional desire to be able to widely spy on almost any information it can get its hands on, so long as they claim collecting that info might possibly somehow help in discovering illegal behavior by non-US citizens.

What's amazing is that those supporting the renewal of the FISA Amendments Act continue to take it on faith that the law is not being abused, even as there's already been an admission that some of the activities violated the 4th Amendment (but no further evidence of what happened or how that would be prevented), and even other tools that we were told were "proven" and "crucial" to the "war on terrorism" later turned out to be expensive boondoggles that were no help at all. Senator Saxby Chambliss was particularly ridiculous in this discussion, insisting that because there was that admission earlier this year that the 4th Amendment was abused, it shows that "oversight is working." This ignores that no further exploration followed to see how widespread the abuse was. Again, Julian Sanchez highlights just how ridiculous this is by noting that the fact that the argument is completely tautological in saying that oversight works because abuse has been discovered.

Congress has both the mandate and the obligation to oversee how law enforcement is using its surveillance powers -- and yet many of its members, led by Senator Dianne Feinstein and Saxby Chambliss, appear to be abdicating that job due to OMG TERRRORISM!@#!@#!!

Update: And they just voted on Senator Leahy's amendment, which was a pretty simple one, just shortening the term of this extension from 5 years to 3 years. All it would do is require that the next debate on this happen sooner, rather than later, but it was voted down (52 to 38) by Senators who'd rather not even discuss the fact that they're allowing the NSA and other law enforcement officials to regularly violate the Constitution. Just punt that question as far down the field as possible, I guess.

Update: And, down goes another amendment. Senator Merkley's amendment would have "encouraged" that secret interpretations of the FISA Amendments Act made by the FISA court be made public (in redacted form). This seems like common sense, but the Senate voted it down (54 to 37) -- because, apparently they like secret laws which the public isn't even allowed to know about, even if it means the NSA can snoop on nearly all of their communications without a warrant.

Update: And there goes another one. Senator Rand Paul introduced an amendment clarifying that the 4th Amendment protects all of your communications. The Senate rejected it by an overwhelming margin, 79 to 12, because apparently protecting your privacy and upholding the 4th Amendment is not the kind of thing the Senate supports these days.

Filed Under: 4th amendment, dianne feinstein, fisa, fisa amendments act, jeff merkley, privacy, ron wyden, saxby chambliss

Senator Chambliss Says There's No Reason To Debate FISA Amendments Act; Just Pass It

from the unconstitutional dept

We've been covering in great detail the FISA Amendments Act, which is likely to be renewed before the end of the year. As you may recall, this was the "law" that expanded the ability of federal law enforcement to warrantlessly wiretap Americans -- and then, thanks to a secret interpretation appears to be used to scoop up tons of information on Americans, despite appearing to be limited to only foreign communications. As we noted recently, a former judge has made a pretty compelling case why the whole thing is completely unconstitutional. While Senator Wyden has put a hold on the renewal of the FAA, he's also said he'll lift the hold if the Senate will consider some important amendments and actually debate the law.

And yet... that might not happen. Senator Saxby Chambliss, apparently with no regard to the Constitution or the privacy of the public he's supposed to represent, has apparently complained that any debate is a waste of time after Senator Majority Leader Harry Reid tried to bring up the issue.

Reid wanted S. 3276 to be considered with a limited number of amendments, but Sen. Saxby Chambliss (R-Ga.) objected and said he didn’t understand why the Senate couldn’t just pass the House FISA bill. He referred to a letter stating that the Obama administration supports the House-version.

So, apparently, as long as the White House wants to trample on Americans' 4th Amendment Rights, and there's a House version that was passed because Representatives misrepresented or lied about what was in the bill, the Senate should just approve it? Yikes. We deserve better. We should absolutely demand that Congress debate this issue, and not rubber stamp it.

Filed Under: 4th amendment, debate, fisa, fisa amendments act, privacy, ron wyden, saxby chambliss