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Bill Bans NSA Eavesdropping
An anonymous reader writes "The US house of representatives today passed a bill outlawing illegal domestic wiretapping by the government. Now government agencies are only allowed to access your private communications under terms of FISA. 'As the Senate Report noted, FISA "was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." The Bill ends plans by the Bush Administration that would give the NSA the freedom to pry into the lives of ordinary Americans. The ACLU noted that, despite many recent hearings about 'modernization' and 'technology neutrality,' the administration has not publicly provided Congress with a single example of how current FISA standards have either prevented the intelligence community from using new technologies, or proven unworkable for the agents tasked with following them.'"
Only in a Government do you need to outlaw something that is already illegal.
I wonder if I use bold in my signature, people will notice my posts.
"passed a bill outlawing illegal domestic wiretapping by the government"
Good thing they outlawed illegal wiretapping, since outlawing legal wiretapping would have made it illegal, thus making the above sentence redundant. Wait. I think I hurt my brain.
Vincent J. Murphy
Spandex Justice
This is really about the separation of powers. The President insists that since he has wartime authorization, he has pretty wide authority to break the law. That is, the law is written, and he doesn't have to follow it because another law trumps it. That's what you get when you have a big, complex legal code.
This bill doesn't really change anything legally, but when it comes time for the third branch of government to have their say on the issue, Congress' intentions will be unambiguous: yes, they do mean that FISA is the ONLY way you can do domestic wiretapping.
It would be nice if laws could be simple and unambiguous, like a well-written piece of software. Instead, laws are written over a long time by a lot of different people, just like real software. Software crashes; laws get inconsistencies. You can point it out for laughs but when it's your phone they're tapping, or your right to life/liberty/property sitting in the ambiguity, it's not so funny.
"the administration has not publicly provided Congress with a single example of how current FISA standards have either prevented the intelligence community from using new technologies, or proven unworkable for the agents tasked with following them."
They haven't provided it privately, either, and the reason is simple.
The FISA court is well-known as being basically a warrent rubber-stamping court. Out of thousands of requests sent in the last few years, only a handfull have been rejected, and most of those were accepted with changes suggested by the court. Since the court will issues warrants post-facto, even temporal urgency isn't an obstacle to getting a FISA warrant. Basically in any situation where the request is properly made and has any merit whatsoever the FISA court grants the warrant, it can be done retroactively, and there's pretty much no reason to skip the process. So why would the administration bypass the court in order to conduct a search?
Because the searches had so little merit that even FISA would not grant warrants.
So no, Bush's administration is not going to give an example of a situation where FISA got in the way of conducting legitimate security operations because no such case exists, it could only give examples of illegitimate ones and it isn't going to do that either.
This is a great start, though I hesitate to support the inherent thinking behind it -- which is, the President has the power to do whatever the fuck he wants until Congress specifically steps in and removes one of these infinitely many powers. But that's okay, we have to do something to at least make it explicit that when the President breaks the law, that means it was illegal, not that the Pres can put the pieces back together however he chooses. And I hope they continue to pass laws constraining government power, increasing oversight, and that they do this right up to the point where one of them gets in office and realizes they are subject to those same laws.
The enemies of Democracy are
The problem with this is that the Executive Branch does not have the power to begin with - its an assumed power under executive order.
I just quickly read up on some of the powqers of the Executive Branch and its actually quite scary as to how many powers the President uses during his term in office that aren't actually codified in US law anywhere but seem to be used as wide ranging systems to get around law - executive orders and signing statements are the two most obvious ones, both used to circumvent laws meant to restrict certain acts and both are powers that are not granted by the Constitution nor current US law.
You people really need to do something about that!
No. It is about a power that was never made available to the federal government in the first place. Warrantless wiretapping is unconstitutional, period. That includes FISA. FISA represents exactly the same kind of reasoning as the ridiculous topsy-turvey interpretation of the commerce clause. The premise is that wiretapping itself does no harm, completely ignoring the breach of your security. Here is the fourth amendment:
You'll note the order there - it isn't an accident: first they get the warrant, then then they can search, seize and generally violate you security. This is the basis for telecommunications law that outlaws wiretapping in the first place.
FISA is based upon the very peculiar notion that they can first tap, and then ask for a warrant, and if a warrant is not issued, then they just "forget" about the tap and - somehow - everything is just peachy. But clearly, it isn't. Your security and privacy was violated, without a warrant. This of course is entirely aside from the fact that FISA is a rubber-stamp organization; just look at the statistics for warrants granted as opposed to warrants refused. Consider further the fact that I am not allowed to put a tap on your phone line. For any reason. I'm not even allowed to listen to a cell phone conversation you broadcast on an analog mode cell connection or an RF-based portable home phone. This is because it is an invasion of your privacy; and because your security is threatened. It isn't because I didn't get a warrant (I can't, as I am a citizen, not a member of law enforcement) and it isn't because I could get a warrant later, if it seemed like I needed to - I still can't. No, it is simply because your security is guaranteed by the constitution, and it is very clear that such an action would be in violation. But this is exactly what the government does with FISA. They don't bother to get a warrant, they just listen whenever they decide they want to. Clearly, FISA is unconstitutional.
Lastly, all arguments that the constitution is irrelevant here somehow because of "need" are false. If there is a real need, the constitution contains the tools required so that it may be modified such that those needs may be met. No, this is simply an end-run around the intent of the document without having to be inconvenienced by its restrictions. Remember, the constitution is the constituting authority for the federal (and state, with regard to amendments 1-10, as per the 14th) government, and any action that is forbidden on the one hand, or not an enumerated power in the case of the feds, is both unconstitutional and lacking any legitimate authority. Don't confuse power with authority.
I've fallen off your lawn, and I can't get up.
The FISA itself already makes NSA wiretapping illegal in ways Bush personally ordered for years, as he's admitted. Last year a federal judge found that the NSA had violated the law (and the Constitution), and thereby that Bush had violated the law, in Bush's admitted offenses. The FISA makes it illegal for Bush to ignore the FISA court when wiretapping, and Bush has insisted he will continue to do just that.
Although Bush did lie about stopping his crimes when this issue first blew up in the news, last week he said he'd continue.
FISA was created after Congress (and America) learned about some of the extent to which Nixon had abused his power to spy on Americans without cause or Constitutional process. It has been amended over a dozen times since, to keep pace with changing technology and suspects. But Bush will ignore it all, because he's used to the Republican Congress Nixon lacked to perpetuate his tyrannies.
Bush is a committed criminal. Congress must impeach him immediately. While we still can.
--
make install -not war
You don't know that.
And the reason you don't know that is that the court providing oversight that would ensure such was specifically avoided.
All you have is their claims about the specifics of the wiretaps.
Actually, you can read it as specifically saying that without stretching at all. It says, in part:
Papers were what they had to communicate with. Mail, diplomatic packets, notes, diaries, etc. Clearly, they were trying to safeguard communications, as well as a person's records, until or unless a warrant was issued for cause. When there is no cause, there will be no search of a person's communications. The mail isn't allowed to be interfered with either, again as a fourth amendment issue, because your papers, in transit, represent your communications and they are still protected. Your words in transit on a wire or a fiber are conceptually the same, and I mean really 1:1, exactly, precisely, 100% the same, as your letter to someone that is sitting in a postal collection box or a carrier's bag. When that letter is at your home it is protected, when it is in transit it is protected, and when it is delivered to the recipient it is protected. Your telephone communications clearly deserve the same protections, and given what the founders knew at the time, there is no question that this is what they were trying to accomplish.
Yes. It is. Because the result is the same as the human and machine (tape recorders, etc) acts forbidden in telecommunications law: Your privacy is sundered, your actions in speech that were purportedly private are not, you may very well be held accountable as a direct result of said computer monitoring, and information you did not expect to become public, or intend to become public, or want to become public, or formulate with the notion of public consumption... becomes public. How broadly varies from case to case, but regardless, your privacy is gone. Hyperbole can be interpreted as statements of intent, hypotheticals can become presumed reality, flights of fancy can be perverted into nefarious plans, statements of disgust with public figures can be taken as plots and subversion. It is critical that we know we are speaking for public (or law enforcement, even more so) consumption if that is in fact the case. There are immense consequences that arrive without justification or the knowledge of the persons communicating otherwise.
Now, mind you, I am not saying that the courts - those same courts that think the enumerated and limited power to interfere with interstate commerce means they can interfere with intrastate commerce... those same courts that think the absolute prohibition against ex post facto laws means it is perfectly OK to make ex post facto laws... those same courts that think that the requirement they not infringe upon the right to bear arms means that they can outright forbid you to bear them and that's perfectly OK... those same courts that have trampled the first amendment to the point where people are arrested for "speaking against religion" - would not go right ahead and do this.
However, to any clearheaded human being not a member of the sophist bunch coming out of law school, there is no question that regardless if it is a machine or a person that does the listening and the snitching and the character assassination, your privacy has been violated when said listening is done without the mechanism of a warrant as required by telecommunications law, which, as I mentioned earlier, is based on the fourth amendment and for perfectly obvious reasons. It is still unauthorized, still wrong, and still represents a use of power not enumerated on the one hand, and forbidden on the other.
I've fallen off your lawn, and I can't get up.