When FISA Court Rejects a Surveillance Request, the FBI Issues a NSL Instead

An anonymous reader writes We've talked quite a bit about National Security Letters (NSLs) and how the FBI/DOJ regularly abused them to get just about any information the government wanted with no oversight. As a form of an administrative subpoena -- with a built in gag-order -- NSLs are a great tool for the government to abuse the 4th Amendment. Recipients can't talk about them, and no court has to review/approve them. Yet they certainly look scary to most recipients who don't dare fight an NSL. That's part of the reason why at least one court found them unconstitutional. At the same time, we've also been talking plenty about Section 215 of the PATRIOT Act, which allows the DOJ/FBI (often working for the NSA) to go to the FISA Court and get rubberstamped court orders demanding certain 'business records.' As Ed Snowden revealed, these records requests can be as broad as basically 'all details on all calls.' But, since the FISA Court reviewed it, people insist it's legal. And, of course, the FISA Court has the reputation as a rubberstamp for a reason — it almost never turns down a request. However, in the rare instances where it does, apparently, the DOJ doesn't really care, knowing that it can just issue an NSL instead and get the same information. At least that appears to be what the DOJ quietly admitted to doing in a now declassified Inspector General's report from 2008."

Comments

LOL

[Anonymous Coward]

It's good we elected Obama who has made sure to bring us "Hope and Change". It's good to know we elected someone who has limited and stopped all the abuses from the Bush era. Just imagine if he had just lied to us and instead simple extended and expanded these abuses of his predecessors. Hopefully we will get a constitutional amendment passed so we can vote our Glorious Leader in for a third term.

Re:LOL

[Todd Palin]

FYI: Senator Obama voted for the FISA act before he became president. So, really, he was on record opposing citizens rights to due process way early on. It should not be a surprise to anyone that his administration has continued to work to bypass the constitution wherever it seemed necessary (to them, for whatever reasons).

Re:LOL

[PopeRatzo]

And Carter. And Ford

Probably the only two since Kennedy who were NOT sociopaths. Whatever you think of their politics, they seem to have been decent human beings. You can't say that about anyone who came after.

Re:LOL

[liquid_schwartz]

Two wrongs don't make a right. The goal is not to argue that Democrat is worse than Republican (or vise versa). If you're still arguing who is the lesser of two evils you have fallen for the ruse. Be smarter than that. Both parties are bad, neither party will help / improve things / save us. The only options are 3rd party or, more likely over time, some flavor of revolution. Citizens United all but guaranteed that simple voting won't be the answer.

Obama is not the only rogue guy in the government

[Taco Cowboy]

Obama alone can't turn the entire government of the United States of America rogue

He has a lot of help from the inside --- people whose sole aim is to turn America into a police state

The bad news is, the government of the United States of America is out of control

The worse news is, we have NO ONE to reign in the government of the United States of America

And that is not enough, the ABSOLUTELY WORST NEWS is, too many of the American citizens have turned into sheeples, and never care how their government functions nor how bad it has turned into

The FISA court turned down a request?

[Todd Palin]

I can't believe any FISA request was ever turned down. Basically, I thought the purpose of the FISA act was to suspend the constitution. What went wrong?

Re:The FISA court turned down a request?

[Anonymous Coward]

I can't believe any FISA request was ever turned down. Basically, I thought the purpose of the FISA act was to suspend the constitution. What went wrong?

We did. We voted for politicians - R and D alike - who promised to keep us safe, rather than those who would keep us free. Everyone who ever said "if it saves one child..." or "but what about the terrorists trying to kill us..." gave the politicians the power to restructure the laws, and gave the bureaucracy the excuse it was looking for to institutionalize the process.

Happy New Year, America. You voted for this. You re-elected the people who brought you this. Every year for fourteen years after 9/11 scared you into cowardice. And you'll keep on re-electing them, because from this point forward, a generation has come of age that thinks of pre-9/11 America as ancient history.

Re:The FISA court turned down a request?

[cold fjord]

I can't believe any FISA request was ever turned down. Basically, I thought the purpose of the FISA act was to suspend the constitution. What went wrong?

What went wrong? Apart from the too obvious naure of your karma whoring? (I guess I'll take that over lying.)

Secret court says it is no rubber stamp; led to changes in U.S. spying requests

The chief judge of the Foreign Intelligence Surveillance Court, Reggie Walton, told members of Congress in a letter that the court’s internal records show that more than 24 percent of government requests for recent warrants had “substantive” modifications in the wake of court review.

The FISA Court Is Tougher Than the Media Says - October 18, 2013

You’ve probably read 20 or more times that the FISA Court approves more than 99 percent of the government’s applications for foreign surveillance orders. What few media have mentioned—and none has emphasized—is that the court often bounces applications and demands modifications before approval. It does so precisely because the application process is not adversarial and secret. As Judge Walton noted, the 99 percent figure does “not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.” Those of us with inside knowledge have long known, and publicly said, that the FISA court scrutinizes the government’s applications with special care, but the data to prove it have been missing. Now we have them.

But the media have not reported an obvious comparison. How many federal and state applications for search-and-seizure warrants are modified before being granted? How many are denied? Knowing that would tell us a lot about how tough the FISA court is on the government.

In fact, the FISA Court looks tough when compared to the way federal district courts handle wiretap applications under Title III, as the federal law is known. Even if you stick with the misleading 99 percent figure, the approval rate for Title III wiretaps is higher. From 2008 to 2012, courts refused to grant only five wiretap applications among 13,593 applied for. That’s an approval rate of 99.96 percent. You can find that comparison in Judge Walton’s letter—it’s in footnote 6—and the information has always been available through the Administrative Office of the United States Courts for any journalist who isn’t afraid of numbers. But you won’t find it in the New York Times, the Wall Street Journal, the Washington Post, or any other news outlet. Bashing the FISA court is too much fun to let numbers get in the way.

Is it a Denial of Service or an exploit !?

[burni2]

Basically, Law and a Programming Language should basically be the same, from the basic definition they are, but sometimes law is interpreted (this is good and bad both at the same time)

a.) in human interaction law specifies rules & processes for man
b.) in machine operation a programming language specifies rules & processes for machines

And in both domains people try to (ab)use the specified rules to behave in a way, which was not forseen/intended by the rule maker.

I judge this as an exploit of type priviledge escalation.

But we should start hacking law, FBI has a head start!

Not that I have anything to worry about but

[hEpen]

If I received a NSL and I were in the mind to ignore it to whom should that hypothetical me send that NSL to in order to get maximum press coverage before being shuffled off to prison?

Would a NBC or a CNN publish it?

Re:Not that I have anything to worry about but

[rmdingler]

If I received a NSL and I were in the mind to ignore it to whom should that hypothetical me send that NSL to in order to get maximum press coverage before being shuffled off to prison?

Would a NBC or a CNN publish it?

Apathy is really just conceding the other side has already won.

Courts have ruled against them, admittedly in smallish numbers, but it has happened. In 2004, the US District Court for Southern NY ruled the Patriot Act's requirement that a respondent file a secret lawsuit in 10 days was ruled unconstitutional. This required Congress to redo the Act to allow 10 days response time to appeal by fax.

In 2008, the 2nd Circuit Court of Appeals in NY ruled that a provision absolving the FBI from having to justify a gag order in court was also, you guessed it, unconstitutional. Google has many more examples, if you're of a mind.

An NSL comes with all the implied intimidation and dread of a certified letter from the IRS. Follow either blindly at your own behest, or fight if you want to... it's not merely rumor that you still have options.

Re:Not that I have anything to worry about but

[RyoShin]

Would a NBC or a CNN publish it?

Pffft, hahahaha. You're better off with The Enquirer than those two. They're more likely to report you to the FBI than report on the NSL.

If you actually want to get coverage, try the likes of The Guardian. I recommend a massive shotgun approach instead if you want more protection; scan the letter, send a copy to as many "news" organizations as possible, and post it everywhere you can on the internet. WikiLeaks, 4chan, reddit, Fark, FurAffinity, Youtube, Redtube, Daily Kos, HuffPo, make your own website, create an entry on Wikipedia, put a torrent/magnet on as many of those sites as possible, etc. Make it so easy to get that no amount of takedown orders can scrub it from the internet. Put copies in every mailbox in the neighborhood, collect those return envelopes from credit card offers and send them copies, leave copies on the seats of buses, movie theaters, libraries, hand copies to the FBI agents/police who show up to arrest you. Encourage others on the internet to do the same. Attach as much information about yourself and the event surrounding the NSL as possible. If the NSL doesn't include your physical address, put that up there as well; the FBI will be more hesitant to act if they think a bunch of local dissatisfied citizens might be hanging around your place with cell cams.

Before you pull the trigger give the original NSL to someone you trust and have them keep it somewhere safe, to be offered up if any of those news places actually want to verify it.

This won't keep you from getting arrested, but it will make a lot of people inquire as to your well-being and where you are in the justice system; depending on the reasons for the NSL, various groups might take up the cause to get you your freedom.

Re:Not that I have anything to worry about but

[Anonymous Coward]

[...] before being shuffled off to prison?

This part sounds strange. Can it happen without trial and sentence? If not, how is the proceeding for that?

Apparently you missed Obama signing the NDAA a few years ago, quietly, on New Years Eve as a matter of fact.
They can take you off to 'prison' without charge or trial, without access to a lawyer, and hold you 'indefinitely'.
The 'proceeding' for that is simply an 'executive decision'.

All of them

[rickb928]

We have to throw all of them out. All of them. And repeat until they do what they should.

Re:Obama is not the only rogue guy in the governme

[wxxy___]

I think that the problem is far worse then people not knowing or caring. It seems like the overwhelming majority are strict authoritarians who almost demand that the government is involved in everyone else's life every waking second.

The 'I have nothing to hide' crowd are the most unamerican, morally bankrupt, cowardly scumbags on earth, and they vastly outnumber the rest.

Fascists' view of 'Democracy'

[Taco Cowboy]

I wish you would all crawl back into your bunker full of hot-pockets and stop poluting the air with your rancid breath

Well, see here, that's not how democracy works. You don't get to suppress someone else's view simply because it is not in accord with your own.

So go fuck yourself

You seriously think fascist cares about democracy?

To the fascists 'democracy' is, borrowing a term coined by a very well known fascist from Turkey, a 'bus'

According to Recep Tayyip Erdogan, democracy works like a 'bus'. He hops on that bus, use the bus to get him to his destination, and then, he gets off

Fascists are all alike, no matter if they are Islamists from Turkey or Obama-cronies from the United States of America. To them, democracy is but a tool for them to attain what they want, and once they got what they want, democracy can go to hell