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Blackbird
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1 edit | reply to manfmmd
Re: re: FISA 'modernization" bill - head's up!
said by manfmmd  :No they can't. You conveniently glossed over this: "Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against a person who was the target of, or whose communications or activities were subject to, an acquisition authorized pursuant to section 102A, any information obtained or derived from such acquisition, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or so use that information or submit it in evidence , notify such person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information." (my boldings - BB SR) So... let me see if I understand you correctly regarding the "gloss". If the government uses any citizen's data it gets via electronic surveillance in any other manner whatsoever besides simply going to trial or involving it in hearings before some official "authority of the United States", that's cool with you? It's OK by you for any US citizen (who talked overseas for whatever actual reason) to have his name and all kinds of sensitive personal information parsed and sliced and diced and scattered onto countless government database records for analysis, cross-referencing, and dissemination to various personnel and agencies - and secretly kept preserved virtually forever "just in case"?
I think a key difference between your stance and those who disagree with you is the great amount of optimistic faith you inherently are extending toward the 'good intentions' of all those in political power whenever creating and preserving citizen "lists", now and in the future. Many careful students of history (including the founders of this nation) have been exceedingly suspicious of political power that is not clearly and precisely and strongly constrained - preferrably by independent oversight by a 'competing' branch of government. Frankly, I'm personally more concerned about the future implications of this law than the present ones, largely because I believe history shows statutes and regulations invariably become "creatively" interpreted to expand power in the hands of those exercising it... and because the harsh glare of publicity and partisanship presently are acting as a counter (even if only a slight one) to the more ominous aspects of this law. And whether or not this particular law becomes "sunsetted" at some near point or not, many parts of it are fairly likely to be imported into whatever replaces it. It is when the current smoke and furor die away that the real damage will be done in the ensuing quietness, somewhere down the road...
edit: removed redundancy
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jvmorris
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| reply to manfmmd
said by manfmmd :said by jvmorris :
They can keep it, they can destroy it, they can act on it (for whatever non-national security purpose that they see fit), they can pass it to any other organization within or without the Government with no penalties -- there's no law that applies. There's no redress; there are no penalties for such abuse.
No they can't. You conveniently glossed over this: "Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against a person who was the target of, or whose communications or activities were subject to, an acquisition authorized pursuant to section 102A, any information obtained or derived from such acquisition, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or so use that information or submit it in evidence, notify such person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information."
Yes, I did. Do you know why? Because it's not part of the bill signed into law by President Bush and it's not part of the pre-existing statute at 50 USC 1806. It appears your quotation comes from the bill as originally submitted by the DoJ -- at least I can find that exact language in that bill.
50 USC 1806(c), as it stands, is quite explicit that it applies only to "information obtained or derived from an electronic surveillance". Well, I was talking about (if you go back up and look) the fruits of "surveillance directed at a a person reasonably believed to be located outside of the United States" which (now) is not be construed as electronic surveillance. So, again, there are now no rules for such information and we are effectively back to the old days, in which the abuses that led to the FISA Act occurred.
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Joseph V. Morris | |
manfmmd
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You missed this part: "or at a reasonable time prior to an effort to disclose"
That means disclose to anyone.
And this part: "so use that information"
That means that they cannot use it.
Without meeting the other requirements of the section referenced above, which states: "notify such person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information." | |
manfmmd
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said by jvmorris :said by manfmmd :said by jvmorris :
They can keep it, they can destroy it, they can act on it (for whatever non-national security purpose that they see fit), they can pass it to any other organization within or without the Government with no penalties -- there's no law that applies. There's no redress; there are no penalties for such abuse.
No they can't. You conveniently glossed over this: "Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against a person who was the target of, or whose communications or activities were subject to, an acquisition authorized pursuant to section 102A, any information obtained or derived from such acquisition, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to disclose or so use that information or submit it in evidence, notify such person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information."
Yes, I did. Do you know why? Because it's not part of the bill signed into law by President Bush and it's not part of the pre-existing statute at 50 USC 1806. It appears your quotation comes from the bill as originally submitted by the DoJ -- at least I can find that exact language in that bill. 50 USC 1806(c), as it stands, is quite explicit that it applies only to "information obtained or derived from an electronic surveillance". Well, I was talking about (if you go back up and look) the fruits of "surveillance directed at a a person reasonably believed to be located outside of the United States" which (now) is not be construed as electronic surveillance. So, again, there are now no rules for such information and we are effectively back to the old days, in which the abuses that led to the FISA Act occurred. What do you mean it's not part of 1806? Really?: »www.law.cornell.edu/uscode/html/···00-.html
1806(c) states:
(c) Notification by United States
Whenever the Government intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter, the Government shall, prior to the trial, hearing, or other proceeding or at a reasonable time prior to an effort to so disclose or so use that information or submit it in evidence, notify the aggrieved person and the court or other authority in which the information is to be disclosed or used that the Government intends to so disclose or so use such information.
Again, minimization procedures are in place for instances whereby a US citizen, unknowingly, is party to an act of surveillance. I could could care less about information that the government can use on non-US Citizens and when they can use it. | |
AmeritecTech
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| Let's say the government is using this collection process and they collect information that implicates an American citizen in a (non-terrorism) crime. Are you suggesting they're just going to drop it?
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jvmorris
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1 edit | reply to manfmmd
Are you blind? It says, specifically, from an electronic surveillance. And Section 105A of S.1927 says that the things we are talking about shall no longer be construed as electronic surveillance for purposes of 50 USC 1801 et seq. Consequently, this section does not apply.
I don't see how it could be much clearer.
And, whoever wrote the bill certainly feels this way, otherwise there would be no need for 105B and 105C, which talk exclusively about 'acquisitions that do not constitute electronic surveillance'.
There are no minimization procedures specified for anything but electronic surveillance.
50 USC 1801 (h) starts out very explicitly: '"Minimization procedures", with respect to electronic surveillance, means - ' (emphasis added)
And, if you look at your two quotes above, you will see some very significant differences in the wording.
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Joseph V. Morris | |
TKJunkMail
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| reply to AmeritecTech
said by AmeritecTech :Let's say the government is using this collection process and they collect information that implicates an American citizen in a (non-terrorism) crime. Are you suggesting they're just going to drop it? The NSA, which is doing the listening in, would not be interested in non-terrorist related crimes.
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| reply to spy1
Re: FISA 'modernization" bill - head's up!
The FISA Amendment – Much Ado About Nothing
By Joseph Klein
FrontPageMagazine.com | 8/14/2007
The most immediate need for the amendment was to clarify that communications between individuals located entirely abroad, which happen to be routed through U.S.-based switches for technological reasons, are outside the scope of FISA’s warrant requirements. This change was relatively non-controversial. However, at the same time, the drafters of the amendment sought to clarify other portions of FISA that were hampering the gathering of foreign intelligence. The most significant of these clarifications – and the one that has caused such consternation among the ACLU, the New York Times and other anti-Bush partisans - is a more explicit authorization for the government to monitor certain international communications without a warrant for an extended period of time, even if one of the participants is an American citizen located in the United States, as long as the monitoring is undertaken for foreign intelligence purposes and is "directed at a person reasonably believed to be located outside of the United States."
The amendment provides that the Director of National Intelligence and the Attorney General may authorize the acquisition of foreign intelligence information in such situations for up to a year without a warrant as long as they have determined, among other things, that “there are reasonable procedures in place for determining that the acquisition of foreign intelligence information under this section concerns persons reasonably believed to be located ouside the United States, and such procedures will be subject to review of the [FISA] Court”. They must certify their determination in writing, under oath, supported by an affidavit of appropriate officials in the national security field.
The FISA amendment contains various procedural safeguards, including transmittal of the certification to the special FISA court “as soon as practicable” and judicial oversight by the FISA court of the government’s determination that its procedures are reasonably designed to ensure that its acquisitions of information are directed at persons reasonably believed to be located outside of the United States. Detailed reports of the program to the Senate and House intelligence committees are also required.
Since the government will be dependent on telephone carriers and internet service providers for much of the information it will be sifting, there is an additional safeguard that provides an opportunity for immediate judicial review. Any carrier that is directed by the Director of National Intelligence and the Attorney General to provide the government with information, facilities or other assistance to accomplish any warrantless search may immediately challenge the legality of the directive by filing a petition with the FISA court. This will have the effect of accelerating the judicial review of specific searches.
The ACLU and their fellow Left-wingers seek to paralyze our government’s ability to head off another terrorist attack on our homeland. In their state of paranoia, they see our own government as the greatest threat to Americans’ freedom. The threat that the Leftists obsess about is largely a figment of their own imaginations. On the other hand, the terrorist threat that the President is concerned about is real and ever-present. Three thousand lives were actually lost on 9/11. A plot to blow up several trans-Atlantic flights from London to the United States that would have killed many more people was actually foiled as a result of good intelligence. The terrorist leaders have announced their intentions to attack America again – with nuclear, chemical or biological weapons if possible.
»frontpagemagazine.com/Articles/R···5B335B73
FISA and the kook fringe
In the wake of congressional passage of a bill clarifying the Foreign Intelligence Surveillance Act (FISA) to ensure that U.S. intelligence agencies can monitor the operations of foreign terrorists operating overseas for the next six months, House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid denounced the legislation and said they want to revisit the issue when Congress returns.
»washingtontimes.com/apps/pbcs.dl···08130003
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jvmorris
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| reply to TKJunkMail
Re: re: FISA 'modernization" bill - head's up!
said by TKJunkMail :said by AmeritecTech :Let's say the government is using this collection process and they collect information that implicates an American citizen in a (non-terrorism) crime. Are you suggesting they're just going to drop it? The NSA, which is doing the listening in, would not be interested in non-terrorist related crimes. That's not quite true.
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Joseph V. Morris | |
AmeritecTech
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| reply to TKJunkMail
said by TKJunkMail :said by AmeritecTech :Let's say the government is using this collection process and they collect information that implicates an American citizen in a (non-terrorism) crime. Are you suggesting they're just going to drop it? The NSA, which is doing the listening in, would not be interested in non-terrorist related crimes. Regardless, this administration does not have credibility on claims that it will follow the law and exercise restraint. For example:
The revelations infuriated U.S. District Judge Colleen Kollar-Kotelly -- who, like her predecessor, Royce C. Lamberth, had expressed serious doubts about whether the warrantless monitoring of phone calls and e-mails ordered by Bush was legal. Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
Twice in the past four years, a top Justice Department lawyer warned the presiding judge of a secret surveillance court that information overheard in President Bush's eavesdropping program may have been improperly used to obtain wiretap warrants in the court, according to two sources with knowledge of those events.
[...]
James A. Baker, the counsel for intelligence policy in the Justice Department's Office of Intelligence Policy and Review, discovered in 2004 that the government's failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.
Yet another problem in a 2005 warrant application prompted Kollar-Kotelly to issue a stern order to government lawyers to create a better firewall or face more difficulty obtaining warrants.
The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which Baker, a top intelligence expert at Justice, shared their reservations and aided the judges. »www.washingtonpost.com/wp-dyn/co···l?sub=AR
They were using fruit of a poisoned tree (illegal surveillance) to get warrants from the FISC, something which had been expressly prohibited. To believe that they're now going to make sure that they're not keeping and using tainted data (surveillance on Americans) requires a pretty herculean exercise of deluding yourself, because they were already doing so in the past. Less oversight into the actual incidents of surveillance will just provide them with greater temptation and less accountability. They're now on their honor, and in the honor department, they're found lacking.
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AmeritecTech
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| reply to Name Game
Re: FISA 'modernization" bill - head's up!
said by Name Game :The most immediate need for the amendment was to clarify that communications between individuals located entirely abroad, which happen to be routed through U.S.-based switches for technological reasons, are outside the scope of FISA’s warrant requirements. Yes, that's right, foreign intelligence surveillance is outside the scope of the Foreign Intelligence Surveillance Act. WHAT.
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GercekSeytan
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| said by AmeritecTech :said by Name Game :The most immediate need for the amendment was to clarify that communications between individuals located entirely abroad, which happen to be routed through U.S.-based switches for technological reasons, are outside the scope of FISA’s warrant requirements. Yes, that's right, foreign intelligence surveillance is outside the scope of the Foreign Intelligence Surveillance Act. WHAT. Are you implying the purpose of U.S. warrants is to protect foreigners in a foreign location from whatever by requiring warrants? If that's not what you're saying, then what is the purpose of the FISA?
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jvmorris
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| reply to AmeritecTech
I think there's something that a lot of people are unaware of and that others are trying to obfuscate.
Since the FISA Act was first signed into law in 1978, it has always incorporated a basis for warrantless wiretapping (or, more properly, 'Electronic surveillance authorization without court order'. The circumstances necessary for intelligence collection activities to fall into this area are and have always been well defined in 50 USC 1802, as have the procedures to then be followed.
S. 1927, on the other hand, attempts to legitimize an entirely new set of intelligence collection programs in 105A,105B, and 105C that are radically different from those specified in 1802. One only has to compare the definitions of the criteria in the two sections and the procedures to be followed to understand the distinction. And, yes, these are the programs that Bush initiated post 9/11.
The people who wrote the bill certainly understand the distinction and they have, in effect, attempted to establish and legitimize these programs such that they are not subject to any meaningful review and oversight, either from the FISA Court or the Congress.
Quite frankly, there really is no way that the warrantless wiretapping programs authorized by 1802 could be amended to cover what's in 105A, 105B, and 105C -- and the authors of the bill know that.
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| reply to manfmmd
Re: re: FISA 'modernization" bill - head's up!
said by manfmmd :You missed this part: "or at a reasonable time prior to an effort to disclose". That means disclose to anyone. And this part: "so use that information". That means that they cannot use it. Unfortunately, you seem to have missed something significant. These limitations of "use" refer only to use of the data in court actions, administrative hearings, non-public court actions, and so forth. There is no limitation or restriction in the wording on the use or preservation of that very same retrieved data for any other purposes... data parsing, correlation, traffic analysis, or archiving. My concern is over-arching: I do not want any government (and particularly my own) maintaining warrantless, complex, and detailed intelligence databases related to its own ordinary citizens - folks who ought to be presumed innocent until proven guilty via full and due legal process. Such database contents ("lists") can later be used to construct innunendo, circumstantial implication, and ultimately second-tier legal action against those citizens without prior, specific court oversight and legal notification to the citizen.
Properly implemented data collection, correlation, and statistical analysis are marvelous technical tools for the gathering and piecing together of both intelligence overview and the boring-in upon specific situations. But there are two realities:
1) data is "forever" unless completely killed off immediately
2) in data mining, two plus two are not required to equal four... they can equal three (for small values of "two") or five (for large values of "two") - or equal anything else the mining programs want them to equal
The reality is that intel-derived databases can point in whatever direction the program authors or users want them to for any given set of records. Sometimes they can point in unexpected directions that entangle innocent targets whose long-accumulated records somehow coincidentally fit the filter-du-jour. Sometimes that entanglement can be intentional, based on the shifting sands of political correctness, popular prejudice, or the machinations of tyrants. I am deeply concerned about simple errors, and I am profoundly disturbed about deliberate misuse... people can (and have) literally died over such things for years.
The only protection for the citizenry is rigid, unrelenting adherence by those in power to principles whose first and primary objective is the protection of the rights of innocent citizens. Whatever the crisis demands of the day, whatever the urgency of the intel needs, that first objective must be adhered to without exception or it's game over. Whenever those in power lose sight of that objective, it is the right and duty of the citizenry to remind them of it: loudly, strongly, consistently, and forcefully if necessary.
Intel technology is complex. The associated constraints are also necessarily complex. That does not relieve those involved from making iron-clad sure the rights of the citizenry are preserved, however difficult that makes the drafting of law/regulation or its administration. To date, most of the attempts to draft electronic surveillance law have exhibited bad-law aspects. This attempt is no exception. Congress needs to have their feet held to the fire to get it right. Eventually they will, if the citizenry insists.
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spy1
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| reply to Name Game
Re: FISA 'modernization" bill - head's up!
John - Those were both simply "opinion" pieces - one was marked as an "editorial" and the other one should have been (thanks alot for making me waste my time reading them).
There was absolutely nothing of substance there, just a lot of spin.
Want to go through the actual bill that's on Thomas and talk about the actual wording of the - Protect America Act of 2007 (Enrolled as Agreed to or Passed by Both House and Senate) - otherwise known as S.1927?
It's a hoot.
Can businesses' (read:telco's) appeal an order to surveil? Of course they can - at their own time/expense. Have the major players in the telco industry shown any inclination to do so? Absolutely not (Must I mention AT&T again? ). Note that the new law does cheerfully pay the telco's for such spying (which is quite an incentive to just do it for them, wouldn't you say - since profit is the absolute GOD there?).
Something else I noticed:
"`SUBMISSION TO COURT REVIEW OF PROCEDURES
`Sec. 105C. (a) No later than 120 days after the effective date of this Act , the Attorney General shall submit to the Court established under section 103(a), the procedures by which the Government determines that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance. The procedures submitted pursuant to this section shall be updated and submitted to the Court on an annual basis.
`(b) No later than 180 days after the effective date of this Act , the court established under section 103(a) shall assess the Government's determination under section 105B(a)(1) that those procedures are reasonably designed to ensure that acquisitions conducted pursuant to section 105B do not constitute electronic surveillance."
*Note that the government gets to wait 120 days before filing their "reasons" why all this stuff is hunky-dory. Think they won't take the full 120 days? Which leaves the court only 60 more days after THAT to review everything they've been presented with and yay or nay it.
"The court's review shall be limited to whether the Government's determination is clearly erroneous."
*WTF does that mean, John? Sounds like an easy out for not fighting any of the requests, more like "Hey, no need to engage your conscience or any actual points of law, just break out the rubber stamp, would ya'?"
"`(c) If the court concludes that the determination is not clearly erroneous, it shall enter an order approving the continued use of such procedures. If the court concludes that the determination is clearly erroneous, it shall issue an order directing the Government to submit new procedures within 30 days or cease any acquisitions under section 105B that are implicated by the court's order.
*That's the only good thing I found in this whole bill, John. Wonder how it survived?
BUT
`(d) The Government may appeal any order issued under subsection (c) to the court established under section 103(b). If such court determines that the order was properly entered, the court shall immediately provide for the record a written statement of each reason for its decision, and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court of the United States, which shall have jurisdiction to review such decision. Any acquisitions affected by the order issued under subsection (c) of this section may continue during the pendency of any appeal, the period during which a petition for writ of certiorari may be pending, and any review by the Supreme Court of the United States.'."
*Ain't that grand, John? If the government appeals a decision against it, it automatically gets kicked to the Supreme Court - which may or may NOT decide to consider it! AND - if they decide not to consider it at all - the "acquisition(s)" get to continue indefinitely!
Is dealing with the actual wording of the law helping you to see our points, John? Pete | |
spy1
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| reply to Blackbird
Re: re: FISA 'modernization" bill - head's up!
And that's been my main problem with this and all like legislation - the legitimate, legal American public is being "datamined" to death.
Our information is being collected, held (indefinitely), passed around to multiple government organizations for the mere asking - IOW, files are being built and maintained on anyone and everyone regardless of whether it relates to "terrorism" or not.
There is no way of finding out what information is contained in government databases on you, nor is there any way whatsoever to remove OR correct such information. It is simply not possible when you can't FORCE the government to reveal if you ARE in the database to begin with!
This is precisely why the ACLU's suit got shot down ( »www.aclu.org/safefree/nsaspying/···706.html ) - because the government would not verify or deny that any of the plaintiff's had or had not been spied upon.
The cloak of secrecy involved here has got to be able to be breached by some review body whose members are not totally under the thumb of the current - or any future - Administrations.
The A.G. does not qualify - neither does the D.N.I.
Expecting them to "self-police" themselves is insanity after having seen the way Gonzales covered up the abuses of the N.S.L's/Section 215's and the "exigent letters" that we still haven't even heard the totality of.
We have well and truly "stepped through the looking glass" here when people can attempt to raise any kind of defense for this new law knowing what has gone on before. Pete | |
spy1
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Name Game
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North Myrtle Beach, SC | reply to spy1
Re: FISA 'modernization" bill - head's up!
»www.aclu.org/safefree/spying/313···817.html | |
Just Bob
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| reply to spy1
The following is the transcript of a question and answer session with National Intelligence Director Mike McConnell.
Among the disclosures:
McConnell confirmed for the first time that the private sector assisted with President Bush’s warrantless surveillance program. AT&T, Verizon and other telecommunications companies are being sued for their cooperation. “Now if you play out the suits at the value they’re claimed, it would bankrupt these companies,” McConnell said, arguing that they deserve immunity for their help.
He provided new details on court rulings handed down by the 11-member Foreign Intelligence Surveillance Court, which approves classified eavesdropping operations and whose proceedings are almost always entirely secret. McConnell said a ruling that went into effect May 31 required the government to get court warrants to monitor communications between two foreigners if the conversation travels on a wire in the U.S. network. Millions of calls each day do, because of the robust nature of the U.S. systems.
McConnell said it takes 200 hours to assemble a FISA warrant on a single telephone number. “We’re going backwards,” he said. “We couldn’t keep up.”
Offering never-disclosed figures, McConnell also revealed that fewer than 100 people inside the United States are monitored under FISA warrants. However, he said, thousands of people overseas are monitored.
»www.elpasotimes.com/news/ci_6685679
There are some who say the Director went too far in his statements, so this may not be available for long. Get it while it's hot. | |
spy1
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| Saw it, Bob - it's on FoxNews, among others:
»www.foxnews.com/story/0,2933,294212,00.html
Along with this:
"Feds: Charity Groups to Be Probed for Terror Ties"
»www.foxnews.com/story/0,2933,294215,00.html
But don't trouble yourself - I''m totally sick and tired to death of the whole thing and have decided to devote the rest of my life to watching paint dry. Pete | |
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