Either The Solicitor General Lied To The Supreme Court, Or Senator Feinstein Lied To The Public About Warrantless Wiretapping

from the pick-one dept

While there's been plenty of attention over the last month or so concerning the revelations from Ed Snowden about NSA surveillance, there have been a series of important ongoing lawsuits that tried to challenge the various aspects of the surveillance efforts. Unfortunately, most of these have ended badly, leading some to wonder if there even is any way at all to legally challenge these programs. At the end of 2011, for example, in a case testing the legality of the telcos helping the government with warrantless surveillance, Hepting v. AT&T, one of the key reasons why the court rejected the challenge was because it basically said, "well, you can always sue the government, but the government has the right to absolve companies of such wrongdoing." Except that, as the Supreme Court ruled earlier this year, because the government keeps the program a complete secret, no one has standing to sue. That is, unless you can prove that you were spied on via this specific program, you can't sue because there's been no harm.

The Supreme Court Justices were clearly troubled by the idea that the government could implement a secret surveillance program that could never be challenged in court, and homed in on that key point in questioning the Solicitor General of the US (and former top RIAA litigator), Donald Verrilli. As the NY Times notes, Verrilli insisted that it simply was not true that no one would ever have standing, because if the government ever used information from such surveillance programs in a court case against someone, the government would have to reveal that the info came via that program.

“Is there anybody who has standing?” Justice Sonia Sotomayor asked.

Yes, said Mr. Verrilli, giving what he called a “clear example." If the government wants to use information gathered under the surveillance program in a criminal prosecution, he said, the source of the information would have to be disclosed. The subjects of such surveillance, he continued, would have standing to challenge the program.

Got that? Of course people would have standing, because the government has to tell them where the information came from. So those people could always challenge the program. When the eventual Supreme Court ruling came out, the majority decision relied very heavily on this particular claim:

...if the Government intends to use or disclose information obtained or derived from a §1881a acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.... Thus, if the Government were to prosecute one of respondent-attorney’s foreign clients using §1881a-authorized surveillance, the Government would be required to make a disclosure.... In such a situation, unlike in the present case, it would at least be clear that the Government had acquired the foreign client’s communications using §1881a-authorized surveillance.

Ok. Now, here's the important part. In defending the FISA Amendments Act (FAA), which is what enabled these kinds of warrantless wiretaps, politicians have been pointing to all of those "examples" where this program was supposedly instrumental in "stopping terrorists." And this includes a few cases that involved federal prosecutions. Senator Dianne Feinstein, the staunchest defender of these programs, has called out two specific prosecutions as "specific cases where FISA Amendments Act authorities were used," saying that "these cases show the program has worked."

While it's arguable whether or not these cases actually showed whether or not the program worked, they do give us two cases where, according to the US Solicitor General and the Supreme Court, the feds were required to reveal to the defendants the source of the information. And take a wild guess whether or not the government actually informed the defendant how it obtained the info? You're psychic!

In a prosecution in Federal District Court in Fort Lauderdale, Fla., against two brothers accused of plotting to bomb targets in New York, the government has said it plans to use information gathered under the Foreign Intelligence Surveillance Act of 1978, or FISA, which authorized individual warrants. But prosecutors have refused to say whether the government obtained those individual warrants based on information derived from the 2008 law, which allows programmatic surveillance.

Prosecutors in Chicago have taken the same approach in a prosecution of teenager accused of plotting to blow up a bar.

In fact, the magistrate judge in the Florida case has told the government it needs to disclose whether or not the surveillance was based on the FAA, but the government, so far, is refusing to say anything, and is asking the court to reconsider.

As far as I can tell, there are a few possibilities here, none of them good:

1. Solicitor General Donald Verrilli lied to the Supreme Court about whether or not the federal government would need to reveal the source of surveillance info obtained under the FAA.
2. Senator Dianne Feinstein lied to Congress about the FAA supposedly being instrumental in those cases.
3. The US Attorneys are now withholding information they are, by law, required to reveal.

It's possible that the reality is a combination of all three. But I can't see how you can explain the present situation without at least one of the three statements above being true.

The ACLU has called this "a shell game" and it's that and more. No matter where you point for the legal authority to challenge these programs, the government insists you have to look elsewhere. Can't sue the companies, but can sue the government. Can't sue the government unless you can prove standing. Can't prove standing unless you're in a case which involves this surveillance, at which point we have to tell you. Of course, in cases where it's been revealed that this kind of surveillance is used, well, now the government insists it doesn't have to admit that. Basically, the feds are going to keep trying to avoid ever having to face an actual legal challenge on this, which suggests they know the reality: the program is illegal and unconstitutional. If they were sure that it was a legitimate, constitutional program, why not just stand up in court and say that?

Filed Under: dianne feinstein, donald verrilli, faa, fisa amendments act, standing, supreme court, warrantless wiretapping

Remember When Supreme Court Rejected Review Of FISA Amendments Act, Because It Was 'Too Speculative' That Plaintiffs Were Being Monitored?

from the can-we-get-a-recount? dept

It really was just a few months ago that the Supreme Court rejected a lawsuit filed by the ACLU, seeking to find the FISA Amendments Act unconstitutional. This is part of the law that is so key to the NSA's surveillance strategy, part of which was revealed over the past few days. The key problem for the Supreme Court was that the plaintiffs didn't have standing, because it was "too speculative" to suggest that the government had monitored their communications. Specifically, the court said that the injury must be "certainly impending." From the ruling:

Yet respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. .... “The party invoking federal jurisdiction bears the burden of establishing” standing—and, at the summary judgment stage, such a party “can no longer rest on . . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’”.... Respondents, however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because §1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural. .... Simply put, respondents can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target.

The court also points out that since the FISA Court could block such an attempt, the plaintiffs would also need to show that the FISC authorized the surveillance.

...even if respondents could show that the Government will seek the Foreign Intelligence Surveillance Court’s authorization to acquire the communications of respondents’ foreign contacts under §1881a, respondents can only speculate as to whether that court will authorize such surveillance

Right. So, given the now leaked documents showing that the FISA Court ordered the data on all phone calls from Verizon, and the further admission from multiple Senators that this program has been happening continuously since at least 2007, perhaps someone should be filing a lawsuit (if they haven't already), and using the latest leaks as proof of standing...

Filed Under: faa, fisa amendments act, nsa surveillance, privacy, speculative, supreme court, surveillance

Yet Another Leak Shows NSA Lied About Not Being Able To Geolocate Data It Scoops Up

from the whoops dept

And... yet another leak of NSA surveillance capabilities to The Guardian's Glenn Greenwald (who damn well better get a Pulitzer Prize for this) suggests pretty strongly that the NSA has directly lied, multiple times, when asked to disclose how many people it had spied on in the US. As we've noted for a while, the NSA has claimed that it was not possible to determine how many Americans it had data on. In a letter to Senator Ron Wyden, Director of National Intelligence James Clapper had stated:

While it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed...

An NSA spokesperson also said that it was not possible to figure that out:

Judith Emmel, an NSA spokeswoman, told the Guardian in a response to the latest disclosures: "NSA has consistently reported – including to Congress – that we do not have the ability to determine with certainty the identity or location of all communicants within a given communication. That remains the case."

But, as Greenwald reveals, the NSA appears to have a program, called Boundless Informant (quite a name, huh) that does exactly that. The leaks are coming fast and furious at this point, and I doubt they're going to stop soon.

Filed Under: dni, faa, fisa amendments act, geolocation, james clapper, leaks, lies, nsa, nsa suveillance, ron wyden, spying on americans

Lots Of People Don't Turn Off Their Devices When They Fly

from the and-no-damage-yet dept

I've always been careful about putting my phone into "airplane mode" when flight attendants ask. However, a few years back, for reasons that I've yet to see any explanation for, flight attendants changed the script and started insisting that "flight mode" wasn't enough any more and you had to turn the phone all the way off. I've asked many times why this switch was made, and no one can say. At the point when that happened, I happened to have a smartphone that had no ability to turn off. I looked. There was no power button. There was nothing in the software that was a "turn off" function. The only way to turn it off was to pull out the battery. I did that on a few flights and then figured it was stupid. So I stopped. And nothing happened. With my current phone, I've tried to "turn it off" but even when it says it's turning off it's not really turning off (because when I switch the battery, it takes about 3 minutes to boot up -- but if I "turn it off" and then turn it back on, it's ready to go within a second). Today, I still always put it into flight mode, but that's it. I turn off the screen and put the phone away, but I don't "turn it off" because it's pretty clear the phone doesn't actually turn off. And the requirement is silly. Similarly, my tablet stays on in my bag and my laptop is generally in "sleep" mode, but not off.

And I'm not alone. It seems that lots of people leave their devices on when they fly.

In a study released on Thursday by two industry groups, the Airline Passenger Experience Association and the Consumer Electronics Association, as many as 30 percent of all passengers said they had accidentally left a device on during takeoff or landing. About 67 percent said they had never done this, always ensuring that their electronics were turned off. Four percent were unsure.

In another segment of the study, passengers were asked if they turn their devices to “off” when instructed to do so by the pilot. Although 59 percent of passengers said they do fully turn their electronics off, 21 percent said they often simply switch to “airplane mode,” which disables the main radios of a gadget. Five percent sometimes adhere to the rule. And others were either unsure or do not carry electronic devices on a plane.

People give all sorts of reasons for why the devices should be turned off, but none of them make much sense. There is the interference question, but given how many of these devices stay on, there would be at least some real evidence of interference by now if that were really a big concern. There is the "gotta pay attention to the flight attendants" argument, but then they wouldn't let you sleep or read a book during takeoff. There's the "flying device is dangerous if something goes wrong" argument, but that applies equally to books. So, what is the reasoning? There's either some reason that no one's explaining... or just a ridiculous overabundance of caution where it's clearly not necessary.

Of course, as I was finishing up this post, someone passed along a Bloomberg video that claims that phones do interfere with flight GPS. If you look at at the text that goes with the video, they cite a story of a flight that went off course until flight attendants convinced someone to turn off an iPhone. However, nowhere in the video do they even mention that story or give any data or support for that claim. The video claims are also suspect. They name a single study from nearly a decade ago talking about a single phone, which is no longer on the market, that caused some interference. The other "studies" they look at include a very small number of claims from pilots who claim problems and that they "suspect" interference from phones, but those are never confirmed. They found 75 such claims over six years, but without any evidence to back them up.

Again, given how often people leave their devices on, you would expect a lot more verifiable evidence beyond a few pilots "suspecting" that phones were the problem, when a variety of other variables might have been a part of it.

Filed Under: airplanes, devices, faa, flying, interference, warnings, wireless

FAA Facing More Pressure To Change Its Rules On Electronic Device Usage

from the the-FAA-speaks-'government;'-it'll-understand-being-'legislated dept

Way back in March, the FAA stated that it was taking a "fresh look" at Kindles and tablet computers, possibly moving towards approving these devices for use during takeoff and landing. Nine months later, perhaps feeling the "fresh look" was now a bit past "stale," FCC chief Julius Genachowski politely but pointedly asked the FAA to just get on with it already.

Now, the FAA has been threatened with being cut out of the device rules loop, thanks to Sen. Claire McCaskill, who has warned the FAA to act fast or face being legislated at.

It is my hope that the FAA will work, with the FCC and other federal agencies where appropriate, as expeditiously as possible to implement common sense changes to today's restrictive regulations on in-flight use of PEDs that better reflect new technologies and the changing role these devices play in Americans' daily lives. While the agency can and should use existing authorities to allow for the broader use of PEDs, I am prepared to pursue legislative solutions should progress be made too slowly.

In a blog post for the New York Times, Nick Bilton explores some of the FAA's stalling tactics and dubious claims behind its refusal to allow certain electronic devices to be used during takeoff and landing. Legislative pressure or no, it looks like the FAA isn't going to be moving any faster than is bureaucratically necessary.

In October, after months of pressure from the public and the news media, the F.A.A. finally said it would begin a review of its policies on electronic devices in all phases of flight, including takeoff and landing. But the agency does not have a set time frame for announcing its findings.

An F.A.A. spokeswoman told me last week that the agency was preparing to move to the next phase of its work in this area, and would appoint members to a rule-making committee that will begin meeting in January.

So, it's a start. Nearly a year past the day it promised to "rethink" the personal electronic device issue, the FAA's finally going to begin selecting candidates for its rule-making committee. Presumably, the committee will be finalized at some point within the next six months, at which point the rule-making can actually begin. Judging by the past year's "effort," I would imagine we'll be writing 2014 on our checks before any proposed changes are given a timescale for potential rollout.

In the process of fending off a growing army of irritated fliers, FCC chairmen and legislators, the FAA has conjured up every bit of electro-hysteria in its arsenal to keep fliers sitting upright and at full attention any time the plane goes below the magical 10,000-ft. cutoff.

As Bilton states, arguing with the FAA is like arguing with a stubborn teenager. Despite its inability to provide any evidence to back up its stance on electronic devices, the FAA continues to stick to its increasingly dubious talking points.

A year ago, when I first asked Les Dorr, a spokesman for the F.A.A., why the rule existed, he said the agency was being cautious because there was no proof that device use was completely safe. He also said it was because passengers needed to pay attention during takeoff.

This last statement is odd. I understand that safety instructions are being handed out during the "takeoff experience," but once that's over (or you've seen it more than a couple of times), it would seem passengers should be able to return to whatever they were doing before the hand signals began. Furthermore, no other form of mass transportation demands that its passengers "pay attention" during departure. And, as Bilton points out, people without electronic devices aren't being forced to "pay attention."

When I asked why I can read a printed book but not a digital one, the agency changed its reasoning. I was told by another F.A.A. representative that it was because an iPad or Kindle could put out enough electromagnetic emissions to disrupt the flight.

Which is ridiculous, considering...

Yet a few weeks later, the F.A.A. proudly announced that pilots could now use iPads in the cockpit instead of paper flight manuals.

So, iPads in the cockpit: OK. iPads in the fuselage: Verboten. There's an excuse behind that "reasoning" as well.

The F.A.A. then told me that “two iPads are very different than 200.”

But they're not. EMT Lab's testing manager, Kevin Bothmann, whom Bilton had test a variety of ereaders and tablets for electromagnetic interference, points out that emitted energy doesn't stack.

“Electromagnetic energy doesn’t add up like that. Five Kindles will not put off five times the energy that one Kindle would,” explained Kevin Bothmann, EMT Labs testing manager. “If it added up like that, people wouldn’t be able to go into offices, where there are dozens of computers, without wearing protective gear.”

Bill Ruck, principal engineer at CSI Telecommunications, a firm that does radio communications engineering, added: “Saying that 100 devices is 100 times worse is factually incorrect. Noise from these devices increases less and less as you add more.”

EMT Labs found that a Kindle puts out less than 30 microvolts per meter in use (0.00003 volts), while any airliner that is approved for flight must be able to withstand up to 100 volts per meter. So, the FAA is concerned that a device that puts out emissions at a level that could be generously termed a rounding error will brick the plane during takeoffs and landing.

Then there's the ever-popular "iPad becomes deadly projectile" argument, which finds that airborne rounded corners are more dangerous than hardcover books moving at the same speed. This argument is so weak it's a wonder the sentence didn't collapse on itself the moment it was first uttered.

But the most interesting point of Bilton's piece is the fact that these rules, backed by little more than "because we said so" rationalization, generate the irrational fear that a single person's electronic device could bring the whole plane down. This often results in overreaction.

In September, a passenger was arrested in El Paso after refusing to turn off his cellphone as the plane was landing. In October, a man in Chicago was arrested because he used his iPad during takeoff. In November, half a dozen police cars raced across the tarmac at La Guardia Airport in New York, surrounding a plane as if there were a terrorist on board. They arrested a 30-year-old man who had also refused to turn off his phone while on the runway.

Basing a zero-tolerance policy on irrational fear leads to other problems as well, especially if those involved have "bought in" to the FAA party line.

In 2010, a 68-year-old man punched a teenager because he didn’t turn off his phone. Lt. Kent Lipple of the Boise Police Department in Idaho, who arrested the puncher, said the man “felt he was protecting the entire plane and its occupants.”

These sorts of incidents are bound to become more common the longer the FAA stalls on adjusting its personal electronic device rules. Device usage is growing, and evidence is mounting that the FAA's claims don't hold water. More and more passengers will test the limits of these rules because they find them ridiculous.

Underneath it all, it seems the only thing holding back the FAA's clearance of these devices is its own fear. Since it will never be 100% sure that these devices won't interfere with critical systems, it's going to continue to play it super-safe, since the last thing it wants on its hands is a plane crash occurring shortly after loosening these restrictions. It's the same fear that keeps the TSA from scaling back its efforts. If something bad happens, the rules shouldn't have been changed. If nothing bad happens, it's because the rules are in place. It's fear-based inertia and if any movement occurs, it's usually in the harsher, stricter direction. 

Filed Under: devices, electronics, faa, flight

...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

Justice Department Uses Red Tape To Delay Release Of Required Information On Domestic Spying Until Well After It Matters

from the most-transparent-administration-in-history! dept

A couple of months ago, Julian Sanchez wrote about the ridiculous situation in which he filed a FOIA (Freedom of Information Act) request to reveal the latest semi-annual report from the Justice Department concerning how it was implementing the FISA Amendments Act of 2008. As we've been discussing, for a while, how the FISA Amendments Act broadly expanded the ability of federal law enforcement, in particular the NSA, to spy on everyone. While there is some language that suggests it's only supposed to be used on foreigners, it's been revealed that there is a secret interpretation of the bill, that likely allows them to use a loophole (plus the secret interpretation) to collect and review tons of data on Americans. The FAA is up for renewal, and it's likely that Congress will rush through a five year extension -- despite overwhelming evidence that many in Congress don't know how the NSA is interpreting the bill (and even making statements that directly contradict the evidence of how the bill is being used).

The law does require the "semi-annual" report mentioned above, and thanks to a lawsuit by the ACLU, the courts have said that the government is required to release redacted versions of those documents. Which is why it was crazy when Sanchez initially filed his FOIA request to see the most recent versions, arguing (quite reasonably) that such documents were inherently important in the debate over the FAA's renewal, that the DOJ initially told him that it had to deny his request because it could "neither confirm nor deny the existence of records in these files responsive to your request." That was obviously bullshit. Once again: the report is required by law, and the courts have already said that the content is subject to FOIA requests. Thankfully, after Sanchez went public with the ridiculousness of the situation, the DOJ quickly admitted the original response was a mistake, and promised they'd get right on finding the documents.

Sanchez now has an update of the situation, which is almost as ridiculous as the original story.

By mid-September, just under three months after my initial request went in, I was informed that they’d identified the reports I was looking for and forwarded them to the Office of the Director of National Intelligence (ODNI) for a declassification review, which they expected would be completed by early November. Joy! Would we actually get information about an intelligence program out of the government without a lawsuit? Maybe even in time to have a semi-informed public debate?

Well, no. ODNI informed me earlier this month that they were wrapping up their review and redaction Any Day Now, at which point… their redacted version would be forwarded, one at a time, to every other intelligence agency whose activities were referenced in the report. At each agency, it would go to the back of the line of FOIA requests, exactly as though it had just been submitted for the first time. Estimated time before a heavily censored version of these reports see the light of day: Another six months. At least. By which time, it won’t matter much what these reports say about NSA’s use of its sweeping powers, because Congress will have already given them another five years of spying authority.

Notice what this means in practice: Even though a court has already established, thanks to an ACLU lawsuit, that they are legally required to release redacted versions of these reports to the public on request, a cumbersome bureaucratic process effectively guarantees that it takes a solid year to get this information out, which means at best you’re working with what the assessment found two reports ago, allowing the government to assert that they’ve fixed whatever problems were found. In this case, the timing of the review process conveniently guarantees that whatever we learn will come far too late to influence this year’s vote on FAA powers, but be old news by the time Congress takes up the question again. It’s a little hard to swallow the claim that all this delay is remotely necessary: Are we really supposed to believe that the Office of the Director of National Intelligence will be so slipshod about letting sensitive classified information through that their work has to be independently double checked by every other intelligence agency? And that this process has to take six months or longer, even after ODNI has done their initial review and redaction? Of course it doesn’t: This is a bureaucratic procedure designed, not to protect national security, but to allow stalling on the release of politically inconvenient information that the courts won’t allow to be completely hidden from the public.

Once again, this seems to raise questions about the process here -- and how much of it really has to do with law enforcement officials being careful... and how much of it is purely political, seeking to hide damaging information that might impact the FAA renewal.

Furthermore, as Sanchez notes, the very idea that he had to file a FOIA for this information is troubling by itself:

What we should really be asking is why I had to submit this request at all. In his first days in office, after all, President Obama issued a directive not only urging agencies to err on the side of disclosure, but to adopt a policy of proactive release of documents likely to be of public interest. Surely if there were any doubt about the public interest in the use of sweeping surveillance powers, it should have been put to rest after the ACLU won release of the earliest compliance reports. So why didn’t the Justice Department follow President Obama’s directive and draft these reports with an eye toward preparing a declassified public version, knowing full well that civil liberties groups would come asking? Well, because then they wouldn’t be able to obfuscate and delay for months and months. Because then the public might be able to have an informed discussion about the secret surveillance powers we’ve given our spy agencies before we vote to extend them. Heaven forfend.

Filed Under: delays, faa, fisa amendments act, freedom of information, nsa, spying, surveillance

House Approves Bill To Spy On Americans By Misrepresenting Or Lying About What's In The Bill

from the they're-just-lying dept

We recently talked about how the House voted to approve the FISA Amendments Act (FAA) by a pretty wide margin, and noted some of the more bizarre and inaccurate statements that Representatives made in support of the renewal. Julian Sanchez has put together a nice summary of some of the more outrageous claims. The key here is that many Reps. seemed to take the FISA Amendments Act at face value, that it would only be used to target foreigners in foreign lands -- in other words, those with no 4th Amendment protections. But, as Sanchez has pointed out repeatedly, former Deputy Attorney General, David Kris, more or less revealed the Act is interpreted to mean that as long as the information they get might be useful in targeting foreigners in foreign lands, it's fair game. That means -- contrary to the direct claims of many FAA supporters -- the law is used to spy on Americans.

Sanchez also highlights another sneaky interpretation. The law claims that it prohibits the interception of "purely domestic" communications. But there's an additional clause with one hell of a loophole: "Known at the time of acquisition." As Sanchez notes, you can drive quite a large truck through that loophole, because if you're, say, scooping up all email communications, you don't know -- at the time of acquisition -- if it's purely domestic... and therefore, you're good to go. Basically, ignorance is bliss for the NSA.

But these two massive loopholes and sketchy interpretations seem to be totally ignored by the Congressional reps who spoke out most strongly in favor of renewing the FAA:

The most common refrain from FAA supporters was that the law only concerned surveillance targeting “foreigners in foreign lands”—meaning it could not possibly affect the rights of Americans. Rep. Trey Gowdy (R-SC), in an impressive display of lung power, delivered a five minute floor shout to this effect. “This bill has nothing to do with Americans on American soil,” Gowdy thundered, “This bill doesn’t implicate the Bill of Rights, any more than it implicates any other part of our Constitution, unless you think that foreign nationals who are on foreign land fall within the protections of the United States Constitution.” But Gowdy has to know that this is false, because the secretive Foreign Intelligence Surveillance Court has already ruled on at least one occasion that surveillance authorized by the FAA did violate the Fourth Amendment’s prohibition on “unreasonable searches and seizures.”

Similarly, we've seen how the NSA absolutely refuses to say how many Americans have been spied upon using these tools, claiming that it's impossible to know (or that it would violate their privacy to find out -- seriously). But, Sanchez notes that, despite the NSA insisting it's impossible to know, that didn't stop Representatives from claiming they just knew.

Intelligence Committee Chairman Mike Rogers (R-MI) was slightly more equivocal, seemingly acknowledging that the law might permit surveillance of Americans, but that this would happen only very rarely.  The mystery here is how he could possibly know that. Sen. Ron Wyden (D-OR) has repeatedly asked the NSA for a rough ballpark estimate of how many Americans—100? 1,000? 100,000?—have had their communications caught up in the agency’s FAA dragnets. If Rep. Rogers were correct, you’d expect the answer to be “almost none”—but instead the agency has repeatedly insisted that it is unable to provide even an approximate figure. Unless Rep. Rogers somehow knows things about the NSA’s databases that the NSA does not know, he can’t have any real basis for this claim.

And then there's Rep. Dan Lungren. Earlier, we had noted that when there were discussions during hearings about the FAA, he brushed off concerns about spying on Americans by saying he hadn't seen any such evidence so it couldn't be true. Of course, he didn't bother to seek out any such evidence by asking the NSA to provide the data. And here he was even worse, making bizarre claims in support of expanding the FISA Amendments Act that seem to go completely against reality.

Finally, Rep. Dan Lungren (R-CA) suggested that the necessity of the FAA was demonstrated by the failures of intelligence leading up to 9/11. After all, the 9/11 Commission had again and again emphasized the central failure to “connect the dots” that would have revealed an imminent attack before it occurred—and to “connect the dots,” Lungren asserted, intelligence agencies would need still more expansive power to first “collect the dots.” This is, in a way, the most breathtakingly erroneous statements heard during Wednesday’s floor debates, because turns the 9/11 Commission’s findings completely on their head. Their report conspicuously did not identify a lack of legal authority to conduct surveillance as a serious problem: If anything, the trouble was that agencies were drowning in information they lacked the capacity to analyze and put to use. Perversely, Lungren trades on a familiar phrase—”connect the dots”—to utterly invert the Commission’s diagnosis of the causes of 9/11.

So... if you're keeping track at home, the reasons the House approved this horrible bit of legislation with massive loopholes that allows the NSA to spy on us is because it can't be used to spy on us (even though it can), it bars the collection of domestic communication (except in nearly every case that it does not), it's barely been used on Americans (except that the NSA claims it's impossible to tell how many Americans it's been used on) and we need it to "connect the dots" on terrorism (even though it doesn't help connect the dots, but merely to provide even more dots, many of which will distract from the important dots).

How do these people get elected?

Filed Under: congress, dan lungren, faa, fisa amendments act, foreign targets, house of represenatives, lamar smith, mike rogers, nsa, terry gowdy