Print 29 comment(s) - last by whickywhickyji.. on Aug 2 at 11:22 AM

The Director of National Intelligence and President Obama are fighting to keep the Senate from getting access to a list of FISA warrantless wiretap uses. They claim it would be "impossible" to generate such a list -- in other words, arguing transparency with respect to domestic spying is impossible.  (Source: Joost)

Meanwhile Democratic Senator Dianne Feinstein (Calif.) is pushing for the renewal of the FISA Amendments Act -- a bill pushed by and passed into law by former President George W. Bush (R) in 2008.  (Source: BoingBoing)

The bill grants immunity from lawsuits to cooperating telecoms, preventing them from potentially admitting to abuses of illegal warrantless surveillance of Americans.  (Source: Reuters)
Some Senators are upset about efforts to stifle Senate review of FISA actions

During the terrorists attacks of September 11, 2001, much was lost by the people of the United States, including the lives of loved ones.  Perhaps the most precious treasures lost, though, were the freedoms that Americans once took for granted.  Today Americans have to endure invasive "enhanced searches" of their genital regions by Transportation Safety Administration agents and can be spied on over the phone -- without warrant -- thanks to the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA).

I. FAA Re-Up Leaves Door Open to New Abuses

The latter "Big Brother" legislation is slated to expire in 2012.  And at a time when most expect them to be trying to negotiate a debt ceiling compromise, a group of Senators are believed to be debating something quite different.  The Senate Select Committee on Intelligence is reportedly meeting behind closed doors.  And reports indicate the topic of discussion is the renewal of the FISA Amendments.

Both the FISA and the FAA ostensibly subvert the protections provided by the Fourth Amendment of the U.S. Constitution, both directly and indirectly.  The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally courts have agreed that wiretapping was a violation of the protection against "unreasonable" searches.

However, in the FISA's case, the scenario was a bit murkier as it officially only allowed the warrantless spying on American citizens in cases where they were believed to be foreign spies (later amended by the PATRIOT Act of 2001, to include "terrorists" as well).  Some would argue that in this case the search is not "unreasonable" and a warrant is not needed -- and further, in line with the Constitutional provision that Congress has the right to provide for "common defence", or designate representatives to do so.

Ironically, the FISA was designed to eliminate Fourth Amendment violations, and was put in place in the wake of accusations that President Richard Nixon (R) had used wiretaps to spy on political rivals.  The act only allowed for warrantless wiretaps if one of the parties was "reasonably believed" to be outside the U.S.

That said, while well intentioned, perhaps the FISA leaves open the door to abuse by putting domestic surveillance mechanisms in place.  While the bill criminalizes abuse, with a penalty of up to five years in jail, it has been difficult to prove abuse allegations against ranking federal officials. 

That's where the FAA comes in.  While officially providing yet more limitations on spying, those provisions are a smokescreen, many argue, for a key provision which grants participating telecommunications companies immunity from lawsuits about warrantless wiretaps.

President George W. Bush (R) is accused of criminally abusing the FISA, by some, using the domestic surveillance facilities to go well beyond spying on terrorists -- spying on politically motivated citizens as well.  While these accusations achieved wide coverage, the actual investigation reached a dead end when the participating telecommunications companies refused to cooperate.  And thanks to the FAA, they now have no fear of legal recourse for doing so.

In other words, the FAA isn't so bad in what it authorizes.  Rather it is arguably dangerous as it removes transparency and accountability, when it comes to the dangerous topic of government playing "Big Brother".

II. Proposed Additions Supporting Transparency May be Voted Down

Senator Dianne Feinstein (D-Calif.) is the chair of the Committee on Intelligence and is a key proponent of renewal.  She tried unsuccessfully, earlier this year, to slip through an extension until 2013.  Now she's yet again battling for passage.

Supporting her is the Director of National Intelligence (DNI) James Clapper.  His lawyer, Robert Litt, wrote a letter [PDF] to the intelligence committee last month stating, "The Act provides additional and critically important authority... to acquire foreign intelligence information on persons reasonably believed to be outside the U.S... We look forward to working with Congress to extend these important statutory tools."

Further the Mr. Clapper's staff are arguing to the Senate that it's impossible to release a list of the Americans monitored under FISA under the last several years -- information that could reveal signs of wrongdoing, or, alternatively, vindicate the program against such accusations.

Rather than let the facts speak for themselves, the DNI is trying to obfuscate that information, under the premise that it's too difficult to collect.  Writes [PDF] his Congressional liaison, Kathleen Turner, "[It is] not reasonably possible to identify the number people located in the United States whose communications may have been reviewed under the authority."

The response was sent to Senators Ron Wyden (D-Oreg.) and Mark Udall (D-Colo.), who expressed concerns that citizens were being illegally spied upon outside the scope of the FISA, using FISA mechanism and resources.

The Obama administration has also expressed support of the FAA, and, reportedly, the work to keep the results of FISA hidden from the Senate.

Aside from the DNI's efforts to disallow the Senate from reviewing the program's actual actions, another troubling development is reported resistance to Sen. Wyden and Udall's proposed additions to the FAA.  

The two Senators, both on the intelligence committee, have reportedly proposed the addition of language that further emphasizes the limitations of the FISA.  For example, one paragraph reads:

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

While not exactly removing the possibility of abuse, the new language seemingly couldn't hurt, by emphasizing the legal boundaries of the controversial practice of warrantless wiretaps.  But amazingly, there's reportedly hesitance to add the language to the bill, though there's no clear reason why.

The U.S. people don't get to hear the debates within the committee, so they will have to wait until the committee brings the renewal before the full Senate, in order to find out if these additions indeed made it through.

In the meantime, they can contact the Director of National Intelligence or Senators on the Committee on Intelligence -- Sens. Feinstein, Saxby Chambliss (R-Geor.), John D. "Jay" Rockefeller IV (D-W. Virg.), Olympia J. Snowe (R-Maine), Wyden, Richard Burr (R- N. Car.), Barbara A. Mikulski (D-Mary.), James Risch (R-Idaho), Bill Nelson (D-Flor.), Daniel Coats (R-Indi.), Kent Conrad (D-N. Dako.), Roy Blunt (R-Miss.), Udall, Marco Rubio (R-Flor.), and Mark Warner (D-Virg.) -- and let them know your thoughts on FISA, the FAA, and the accountability issues thereof.

Comments     Threshold

This article is over a month old, voting and posting comments is disabled

By idiot77 on 7/31/2011 2:25:55 PM , Rating: 5
The executive branch will always hang to whatever power it can get away with. That's why, in theory, we have 2 other branches that can effectively over rule one.

Hopefully this time around congress realizes that the Patriot act was an over reaction that did very little aside from cost us personal liberty and money.

RE: Unsuprising
By LSUJester on 7/31/2011 2:38:29 PM , Rating: 3
Sadly, it's pretty well only theory. I just don't really see any branch coming up and saying that right now. Mainly because if they did, you would get a sizable backlash, especially with the anniversary around the corner. Even after that, would they really want to give up what basically is a free way to spy on us? Granted, the judicial branch doesn't get much benefit, but they're not going to buck the system, when that system got them their job. I don't think change will come until people as a whole do not want it.

And most people aren't going to care, either. I say that because wiretapping doesn't directly affect you, at least you don't know it if is. TSA patdowns and scans directly affect you. They're obnoxious and they hold you up. More retape for passports, that affects you. But you never know you're being tapped, so I don't see an uproar ever coming out of it, except for the usual people who uproar about everything else.

RE: Unsuprising
By redbone75 on 7/31/2011 5:32:46 PM , Rating: 1
The Patriot Act was a power grab that allowed Bush and his cronies damn near free reign to do as they so chose with little in the way of opposition. If you spoke out against it you were shouted down as not being "patriotic," and it was political suicide for any politician to speak in opposition. The Patriot Act is anything but.

RE: Unsuprising
By tng on 7/31/2011 10:14:34 PM , Rating: 4
Bush? Really? If you didn't notice, the ability to do warrant-less wiretaps and monitoring existed long before the Patriot Act (can you say Bill Clinton?). You will also notice the Obama admin that has the chance to dump this and take some of the teeth out of it and he wants to extend it.

RE: Unsuprising
By FITCamaro on 8/1/2011 8:57:28 AM , Rating: 5
The difference I see between Obama and Bush is that Bush did not campaign against it. He openly supported it.

Obama campaigned on a message of "change". Including in this area. Just one more area where he said what he had to say to get elected to whoever was listening.

RE: Unsuprising
By Invane on 8/1/2011 12:38:24 PM , Rating: 2
This bipartisan crap is absolutely stupid. Both parties are on the same boat here. They both want more power. Turning this into a R vs. D pissing match just takes scrutiny away from the issue, where it belongs.

Neither party is interested in giving you your freedoms back. Both will slowly erode them away one piece at a time. They've both pretty much converged to the same corrupt point on the line. They just keep their little "we're different from those other guys over there" differences to make Americans feel like they have a choice. You don't. It's like cheap electronics. The same company makes 'em, they just slap a different sticker on in the end.

RE: Unsuprising
By tallcool1 on 8/1/2011 3:39:25 PM , Rating: 2
Yea but O was suppose to be different, remember "Change you can believe in".... :-p

RE: Unsuprising
By Invane on 8/1/2011 5:02:41 PM , Rating: 2
errr should be partisan. Definitely need some edit capability here!

RE: Unsuprising
By Reclaimer77 on 8/1/2011 8:56:18 PM , Rating: 2
This bipartisan crap is absolutely stupid. Both parties are on the same boat here. They both want more power.

Right. Which is why the Republicans have been fighting tooth and nail to cut over two trillion dollars in Government spending (power) out of the budget while the Democrats just want to keep the status quo.

But hey don't let reality get in the way of dogma.

RE: Unsuprising
By kenyee on 7/31/2011 10:41:24 PM , Rating: 2
Just to stop the spread of the news of her husband getting a Lewinsky :-)

They're all sleazes. The old time politicians (both major parties) totally ignore the Constitution and the Bill of Individual's Rights. Then again the average citizen doesn't have a clue what's in the BOR and thinks driving is a "right"..LOL. The country's going down the tubes... :-P

RE: Unsuprising
By kenyee on 7/31/2011 10:43:43 PM , Rating: 2
Apparently, you can't change the subject line.

I was talking about how Hillary Clinton wanted to shut down the Internet to stop the spread of news about her husband's BJ...

RE: Unsuprising
By tastyratz on 8/1/2011 9:13:51 AM , Rating: 2
yes quickly hurry while nobody knows about such event. Kenyee you spilled the beans! Now you put it on the internet again! Thanks for the clarification though, none of us could connect those complicated dots

on topic again:
In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

I find this verbage no better for the transparency to the american people, and actually even more restrictive. Here let me translate it for dt "people think we shouldn't hide things, but we swear we will only do it if we think we should...which is always"

RE: Unsuprising
By Kurz on 8/1/2011 11:49:18 AM , Rating: 2
Driving on your own property is perfectly ok without a drivers license. Its when you are on public roads you fall under domain of the state.

RE: Unsuprising
By icanhascpu on 7/31/2011 8:19:45 PM , Rating: 3
The Patriot act was an insult to everything America stood for in the beginning. These bastards should be jailed.

RE: Unsuprising
By knutjb on 8/1/2011 12:40:48 PM , Rating: 2
While imperfect there are parts that are worthwhile, I don't care if they tap overseas conversations that pass through US based phone systems. Domestic they have to have a warrant.

The difference between this and other crazy laws is that it has to be re-authorized every couple years. That was intended to keep it from becoming a permanent draconian law. The question is will that happen or will it just keep getting passed?

Who cares?
By sprockkets on 7/31/2011 4:34:22 PM , Rating: 2
With shit like this going in, there isn't any hope left for the government to do anything right.

You can repeal the law, but I doubt the wiretapping will actually stop. And you can't prove it cause it will violate some "state secret" or it's classified and will hurt national security, just to get the evidence in the first place.

RE: Who cares?
By redbone75 on 7/31/11, Rating: -1
RE: Who cares?
By Fritzr on 7/31/2011 9:33:31 PM , Rating: 5
If you mean the ones who wish to see the government operate within the law, then I guess I stand with the Conservatives.

President Obama, assuming the stories are correct, is very likely in violation of his oath of office. That is not a "conservative" stance, that is what every citizen should be looking at when deciding whether to allow a politician they intend to uphold the constitution of the United States or do they intend to grant themselves illegal authority and make it a crime to find out what they are using that authority to do?

I particularly like the Intelligence Agency remarks where they say that they do not know who they were wiretapping. Yes they definitely remained within the authority of the Fourth Amendment when they collected information without documentation showing who they were tapping or at least a good reason for tapping unknown parties.

I still wonder what action the FBI actually took over illegal National Security Letters used by FBI investigators without the FISA Court warrant the law requires. Last I heard the FBI was insisting that breaking the law is not illegal, only an internal personnel matter and any and all action taken (even a note of no further action) is confidential & not to be made available to anyone outside the FBI including the agencies responsible for overseeing the FBI.

After all it is completely legal to issue a warrantless order demanding documents under threat of prison and accompany it with a threat of jail time if the order is mentioned to anyone other than the persons known to the recipient to be authorized to receive the information demanded.

This illegal use of the letters only came to light when someone broke the law by finding out that the FBI NSL was not known to the FISA court. Checking to see if such a letter has any legal standing can get you thrown in jail on a national security charge :P

RE: Who cares?
By AssBall on 8/1/2011 6:48:53 AM , Rating: 1
If you mean not being happy with our federal laws containing 2000 pages of extra spending and debt ridden programs that 90% of legislature didn't even read, count me as a conservative too.

RE: Who cares?
By espaghetti on 8/1/2011 1:45:46 PM , Rating: 2
Oh crap!! Run for the hills!!
The guys and gals who want a small financially responsible government are here!!
They might take away our free government provided WiFi!! lol

Land of the Free
By MechanicalTechie on 7/31/2011 8:06:07 PM , Rating: 2
Free for the authorities to do anything they like,
Free to treat you all as criminals,
Free for politicians to do as they please
Free to grind your rights into the ground

Yay America... home of the free!

RE: Land of the Free
By gorehound on 8/1/2011 1:43:56 PM , Rating: 2
Nolonger the land of the free as we all have been sold out by rich politicians who love the power.just keep on taking away liberties and in the end there will be a second revolution.Thre will come a time you can not push us any longer and we will fight you back and you do not want to see that one.

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.

Invasive airport searches did NOT come from 9/11
By torpor on 8/1/2011 12:06:30 PM , Rating: 2
It's worth noting that the invasive genital-patting and see-it-all machines did not come around until:

-Someone tried to pop off a binary explosive on a flight with materials hid in their skivvies

-Janet Napolitano - an appointee of President Obama - came to be in charge of Homeland Security.

It has as great an association with 9/11 as bombing Libya.

Also, because Janet Napolitano is directly responsible to President Obama, he can end this policy any time he wants to. Remember that come election time - Bush may have listend in on phone calls, but Obama wants his hand down your pants.

By whickywhickyjim on 8/2/2011 11:22:53 AM , Rating: 2
She's a man, baby!

Warrants are not "unneeded"
By FITCamaro on 8/1/2011 8:56:06 AM , Rating: 1
Warrants for the taps are still needed. Authorities just do not have to obtain one before monitoring a call or email. You can't plan when you'll need to tap a call. And you can't always get a judge in the middle of the night.

After the tap is made, they still have to go back and get the warrant. If it is shown what they did was unwarranted, they can still get in trouble. And in 10 years, not a single instance of abuse has come to light.

RE: Warrants are not "unneeded"
By Fritzr on 8/1/2011 10:11:41 PM , Rating: 2
The FISA procedure is not the problem. The problem is intelligence agencies relying on the FISA court proceedings being classified information.

This makes it illegal to ask if the warrant being served has FISA court permission or if it is simply a piece of paper printed out and handed to the target with the FISA court being unaware of either the warrant or the investigation.

Yes the FISA court can issue a retroactive warrant.
No the investigator does not need to submit the request to FISA as it is a national security crime to check to see if the warrant is legal.

The FBI has been caught doing this
AT&T has been caught assisting with wiretapping operations that were not legal under the existing laws. (A special law was passed saying that there is no punishment if a US telephone company assists a US government agency in an illegal operation)

The $64k question is: How many illegal operations have not been publicized due to "National Security Concerns"?

That's good - Screw the repubs
By MartyLK on 7/31/11, Rating: -1
By caonimeiaaa on 7/31/11, Rating: -1
RE: ererye
By MechanicalTechie on 7/31/2011 9:34:40 PM , Rating: 2
Daily tech kick this muppet!!

"So, I think the same thing of the music industry. They can't say that they're losing money, you know what I'm saying. They just probably don't have the same surplus that they had." -- Wu-Tang Clan founder RZA
Related Articles

Copyright 2016 DailyTech LLC. - RSS Feed | Advertise | About Us | Ethics | FAQ | Terms, Conditions & Privacy Information | Kristopher Kubicki