Showing 8 posts
eggy1943
eggy1943
Warrent
Mar 4 2009, 2:35 PM EST | Post edited: Mar 4 2009, 2:35 PM EST
Because of timeliness the original FISA allowed action providing a warrant had been applied for. If the warrant was not allowed by court, the information and action was rescinded and deleted. The people / agency who took the wrong action were disciplined. I think this is realistic and still protects our privacy and security. The original FISA is a good document and could be reinstated. 2  out of 2 found this valuable. Do you?    
Keyword tags: fisa warrent (edit keyword tags)

Sallijane
1. RE: Warrent
Mar 6 2009, 5:27 PM EST | Post edited: Mar 6 2009, 5:27 PM EST
I agree, FISA was fine until they started tampering with it. What we need to have done is repeal the amendments that weakened the protections originally provided in FISA. 1  out of 1 found this valuable. Do you?    
Brons
Brons
2. RE: Warrent
Mar 6 2009, 8:15 PM EST | Post edited: Mar 6 2009, 8:17 PM EST
"I agree, FISA was fine until they started tampering with it. What we need to have done is repeal the amendments that weakened the protections originally provided in FISA."
It is my understanding (as outlined in article #3 from the bibliography above, that a number of provisions of last summer's FISA amendments were intended to increase the protections. These include:

1. Broadening the scope of FISA to cover even surveillance of non-US person outside the US, which was previously uncontrolled. This means that the rules cannot be evaded by saying tat they don't apply. They apply to everything. Now, what they say about spying on foreigners outside the US is that its OK, but it is now OK because the regs say it is OK not because it is unregulated.
2. Explicitly requiring that everything done under its auspices must conform to the Fourth Ammendment, making violation of the Fourth a crime in addition to grounds for a suit. This means ther are more ways to bring the law to bear.
3. Given detailed requirements for three different levels of review and requiring regular Congressional, Judicial and executuve oversight.
4. Conforming the categories of people and places that are differentiated in the law to the people and jurisdiction of the Constitution. The Constitution protects anyone in the US and US persons anywhere in the world from the actions of the US government.

Most of these are legal, Constitutional and political technicalities that it takes lots and lots of reading and research to understand. I spent two or three weeks full time reasearching and I am NOT positive of my understanding. Thus the title of my posting last summer: "I think I understand FISA. Do I?" and thus my asking this question "What does it mean to get FISA right?"

And, while I say above that it is my understanding that the amendments tried to increase the protections, that doesn't necessarily mean that they succeeded. Do you find this valuable?    

Sallijane
3. RE: Warrent
Mar 6 2009, 10:48 PM EST | Post edited: Mar 6 2009, 10:48 PM EST
Judging by the flow chart posted on "ketchup and caviar", which I found under Resources (I'm not sure just which article you referred, and I'm pressed for time right now—obviously I have a lot more to learn), I believe that the original FISA bill required a specific user or address to be targetted, not just "any foreigner". This meant that there had to be some cause to think that the person or e-mail address was involved in something "fishy". Now, they seemingly can wiretap any conversation involving a noncitizen whom they believe to be outside the States without any (any meaningful?) supervision, which the necessity for obtaining a warrant would at least seem to provide. And if there is immunity for telecoms, the "powers that be" can pretty much do what they want without challenge. This is why I thought the pre-2008 FISA, which G. W. Bush clearly violated, was O.K. and simply should have been applied as it stood, not changed to allow what Bush et al. had done to become the new lower standard. This, to me, explains why there was so much anger when Obama promised stand against changing FISA, then in the end went back on his word and voted for the changed version; Dodd and Feingold did their best to stem the damage, but without much, if any, support from Obama (other than following their lead).
As original supporters of Obama's candidacy, we are respectfully giving him the opportunity to go back to his first position, but if he doesn't, there may be blood in the streets (exaggerating for effect, I hope!). 1  out of 1 found this valuable. Do you?    
Brons
Brons
4. RE: "specific facilities" in old FISA
Mar 7 2009, 2:23 AM EST | Post edited: Mar 7 2009, 2:23 AM EST
The Ketcup and Caviar flow chart article is ref #2 in the list that I posted in resources and as the bibliography on the page that this thread is a comment on. My own analysis is item #3 in that same list.

You're right in part. IF a particular surveillance required a FISA warrant, then a specific phone number or email address was needed and the new version of FISA weakens that, and that may be a bad thing. BUT the old version of FISA also had a bunch of loopholes. No FISA warrant was needed if the person doing the spying was outside the US, even if they were spying on a US citizen abroad. Likewise if the communications was over radio even if the listener was inside the US. Under the new law, if a US person (a citizen or resident alien) is involved, then at least a FISA warrant is required.

The new law directly reflects the protections of the US Constitution. It protects US persons wherever they are, inside the US or out, and wherever the listener is, inside the US or out. That's the good news. The bad news is that the requirement for probable cause was weakened and the requirement for a specific phone number or email address was removed. Personally, I don't see any benefit to weakening the probable cause requirement and I think that was a bad idea.

The requirement for a specific phone number or email address, on the other hand, I feel is pretty much forced by the technology. I can sign up for an email address in any one of a large number of sites in the matter of minutes. Likewise I can buy a prepaid phone. Until I get the new address or phone the government can't specify it in a warrant. Back when FISA was written a specific phone number made sense. Today it makes sense to target specific people or identifiable groups.

These issues need to be analyzed in depth. 1  out of 1 found this valuable. Do you?    
Brons
Brons
5. RE: Warrent
Mar 7 2009, 2:45 AM EST | Post edited: Mar 7 2009, 2:45 AM EST
"This, to me, explains why there was so much anger when Obama promised stand against changing FISA, then in the end went back on his word and voted for the changed version; Dodd and Feingold did their best to stem the damage, but without much, if any, support from Obama (other than following their lead).

As original supporters of Obama's candidacy, we are respectfully giving him the opportunity to go back to his first position, but if he doesn't, there may be blood in the streets (exaggerating for effect, I hope!)."
(First a disclaimer: I was not an original supporter of Obama. He was + is too much of a hawk for me, + was always always a bit too "pragmatic". He has grown on me over the last year. Dodd + Feingold are among the folks I support long before him.)

I believe you misstate his position. I believe that he said he would do three things:
1. Fix the damage done by recent (pre-2008) amendments to FISA.
2. Update FISA to deal with new technology, while not violating the Constitution
3. Vote against telecom immunity.

He did not do #3, + I was very angry over that. The reason he gave was that while Title II, the immunity was bad, Title I, the actual changes to FISA were good + more important. Other people such as Larry Lessig + Dodd said that Title I was flawed but good. For Dodd it was nowhere near good enough to out-balance immunity. Lessig defended Obama's trade-off as reasonable, though not necessarily what he would have done. Obama traded 3 for 1+2.

My item #3 in the bibliography + Resources page was researched because I wanted to know what was so good about Title I, since none of them explained. I am still angry about the immunity, but I think what they were trying to do in Title I was good, but that they didn't do a good enough job. I don't think they "got FISA right" + I don't think caving on immunity was good.

Let's get it right. 1  out of 1 found this valuable. Do you?    

Sallijane
6. RE: Warrent
Mar 7 2009, 6:24 PM EST | Post edited: Mar 7 2009, 6:24 PM EST
Aren't radio communications public by nature? That's one main reason that I won't go wireless or use a cell phone if a landline is available. (I don't even have a cell phone of my own.) I do see your point about buying cell phones and signing up for E-mails, but was recently on a jury for a case in which the FBI was conducting a wiretap WITH warrant of a Boost cell phone (the type that can be purchased without ID and with a fake name). I was an alternate and dismissed after just 2 days, so I don't know all the details, or whether the case has been decided and I am free to talk about what I heard, but if they could get a wiretap warrant for a specific telephone in that case, why not in others? (Perhaps they did get the warrant based on the individual's name.) I agree, this aspect does need to be researched further. If probable cause is weakened, then I don't see how you can consider U.S. citizens protected; if they are talking to a foreigner, then, as I understand it, they can be tapped. And you're right, the biggest offense in the new bill is telecom immunity. 2  out of 2 found this valuable. Do you?    
Brons
Brons
7. re several points
Mar 8 2009, 7:15 PM EDT | Post edited: Mar 8 2009, 7:15 PM EDT
"Aren't radio communications public by nature? ...

if they could get a wiretap warrant for a specific telephone in that case, why not in others? ...

If probable cause is weakened, then I don't see how you can consider U.S. citizens protected;

if they are talking to a foreigner, then, as I understand it, they can be tapped.... "
Unless encrypted, radio messages are indeed easier to tap than messages transmitted over copper or glass, but that's not the same as being legally "public". Just as with email messages that are sent in the clear, the mere accessibility doesn't eliminate the expectation of privacy nor the right to it.

The main problem with getting a warrant for a throw away phone is knowing the number of the phone. That generally requires a previous round of surveillance, and so on. It is far more practical for warrants to have to specify the people involved than the facility. People have rights, not facilities.

The weakening of probable cause did weaken protection. I am not comfortable with that. But other aspects of the law made important improvements in protection. Getting it right is thus fixing the problems that still exist, not repealing the fixes to old problem along with the newly introduced problems.

The new FISA addresses US persons talking to foreigners. If US persons are known to be involved, then FISA warrants must be used. They didn't always have to be in the old law. Also, the agencies are specifically forbidden to intentionally target US persons by pretending to target foreigners. This is now a crime. Finally, they are required to minimize the number of US persons that are swept in, and to review both the procedures for avoiding that and the statistics on its occurrence. Ordinary warrants from non-FISA courts can also uncover people not mentioned in the warrants. No minimization procedures are required there, to my knowledge. Do you find this valuable?