Feds Wait Until Late Friday To Admit That, Yeah, They Ignored The 4th Amendment

from the congress-will-ignore-it-anyway dept

While Senator Wyden has been banging the drum about privacy violations committed by the federal government under the FISA Amendments Act for quite some time, the rest of Congress seems perfectly content to stay ignorant and pretend that there’s no possible way that the feds might be abusing the powers that let them spy on nearly anyone without much (if any) oversight. So it’s interesting that Wyden was finally able to squeeze out of the Director of National Intelligence an admission that, oh yeah, the feds violated the 4th Amendment. As covered by the always awesome reporting by Spencer Ackerman at Wired:

The head of the U.S. government’s vast spying apparatus has conceded that recent surveillance efforts on at least one occasion violated the Constitutional prohibitions on unlawful search and seizure.

The admission comes in a letter from the Office of the Director of National Intelligence declassifying statements that a top U.S. Senator wished to make public in order to call attention to the government’s 2008 expansion of its key surveillance law.

The letter is embedded below. There are two key admissions in there that are new:

  • It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
  • I believe that the government’s implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

Of course, they chose to release this bit of information late on a Friday evening — exactly the time you release something when you want to bury it. The public should not let this news die. They should be asking their elected officials why they’re rushing to re-approve the FAA, and have so far refused to have even the slightest curiosity about what the feds are doing with these powers — even to the point of claiming that since they’ve seen no evidence of abuse (not that they’ve asked for it) they shouldn’t assume that there is any. Well, now there’s some evidence of abuse. Shouldn’t Congress be seeking more information, rather than just rubber stamping a renewal of such powers?

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Comments on “Feds Wait Until Late Friday To Admit That, Yeah, They Ignored The 4th Amendment”

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57 Comments
Ninja (profile) says:

Re: Re:

I’m sure that a rapist could admit his actions were not in keeping with the law at least once. That doesn’t mean he ignores the law, obviously. /sarcasm

If they ignored the 4th Amendment, even if it was ONCE, it’s reasonable to assume they can do it again. Which is on par with the article. But you are trolling, of course. Your score: 8/10, you forgot to add Pirate Mike on your comment =)

Anonymous Coward says:

Re: Re: Re:

“If they ignored the 4th Amendment”

See, that’s part of the problem, how you are framing it. They didn’t purposely IGNORE the 4th amendment, just the end results of steps taken may ended up with them exceeding it.

The way you (and Mike) put it, it is as if they were sitting around a conference table, proposing a warrant or surveillance, and a lawyer said “that would violate the 4th amendment”, and the director said “ignore the 4th amendment”. That just doesn’t appear to be what is happening.

So, I would say that in fact you and Mike are sort of trolling here, trying to turn an admission of overdoing it at least once, and turning it into some sort of organized campaign against the 4th.

Sad, really.

Anonymous Coward says:

Re: Re: Re: Re:

So…they just didn’t know what they were doing was going to violate the 4th amendment…at least that one time…but they went and did it anyway…despite being experts or having access to experts on such…and they conceded that much in a publicized letter…but…Ninja and Mike are the trolls…?

That is some kinda pretzel logic right there.

Anonymous Coward says:

Re: Re: Re:2 Re:

The courts are clogged with cases that implicate provisions of the Constitution. There are literally thousands of cases a year with constitutional implications, presumably where the action of a party was done in the good faith belief that its action was within the boundaries and later learned by deeper research or decision from the bench that their action was unconstitutional. This notion of seeing an evil conspiracy each and every time is so much alarmist bullshit.

Anonymous Coward says:

Re: Re: Re:4 Re:

Granted, but no enforcement organization has the resources to do much more than provide general guidelines for its operational people.

i’m sure people diverge from time to time; and generally don’t cross the line. It’s absurd to believe the paranoid conspiracy theories that dominate the narrative around here.

teka (profile) says:

Re: Re: Re:5 Re:

Oh, so it is ok to violate anything you like as long as you can claim it would be too tricky to deal with laws properly.

“Sorry officer, It would require too much manpower to observe those speedlimit signs so I am not going to accept a ticket”

“Don’t worry John Q. Public, we guess things will turn out alright with this new drug. We can’t be bothered to test it and decide on its efficacy and safety for a few dozen years, but we will just proceed on the assumption that it is safe and useful”

Chris-Mouse (profile) says:

Re: Re: Re: Re:

See, that’s part of the problem, how you are framing it. They didn’t purposely IGNORE the 4th amendment, just the end results of steps taken may ended up with them exceeding it.

See, that’s part of the problem. They chose a plan of action without considering whether or not the law permitted that action. Isn’t the whole purpose of law enforcement to ensure that everyone follows the law at all times?

Ninja (profile) says:

Re: Re: Re: Re:

Actually, they regularly ignore the Constitution itself just to be slapped later. I’m fairly sure that even if you ignored the articles linked in this article you’ll find plenty of examples where at least one Amendment was disrespected.

The way you (and Mike) put it, it is as if they were sitting around a conference table, proposing a warrant or surveillance, and a lawyer said “that would violate the 4th amendment”, and the director said “ignore the 4th amendment”. That just doesn’t appear to be what is happening.

Nobody said that even though I suspect it happens quite a few times. Either that or they are incredibly ignorant.

Anonymous Coward says:

Re: Re:

By your logic, it’s ok if the constitution is ignored once in a while?

When they ignored the 4th Amendment, I didn’t say anything because it didn’t seem to affect me.

When they broke down my door to arrest me for something I said on the phone..I knew that it was too late.

Anonymous Coward says:

Re: Re: Re:

“By your logic, it’s ok if the constitution is ignored once in a while?”

Fuck no. These idiots should have the book thrown at them… picked up, and thrown at them again for good measure. But you have to look at HOW they got there before having them completely drawn and quartered.

The rest of your post, well, hyperbole anyone?

Anonymous Coward says:

Re: Re:

You trust the government to admit whenever it oversteps its bounds? That is terribly naive of you, you know. I trust that if the government is admitting it, then it’s come to the conclusion that it can’t hide what it has done, so maybe it can misdirect us on this ‘one instance,’ and we’ll ignore the rest. The founding fathers did not want us to trust our government. That’s why we have the 2nd Amendment.

Michael says:

They’re testing the waters, so to speak, with this admission. That being, if law enforcement and other intel-gathering agencies can freely disregard the Constitution and get away with it, this would set a nice precedent for them to continue to do so.

Oh, and I I think they’re being very generous by stating “…at least one occasion” of violating the Constitution when the actual number is very likely far greater.

Wally (profile) says:

Re: Re: Re: You are missing the point

You know the difference between conservative and liberal a lot more blurred than most think. Let’s look at the similar they are demographically.

Conservatives and Liberals are inharrently the same. Both think their ideas are better than the other’s. Both are extreme left and extreme right.
Left conservatives being hippies, right conservatives being gun toting anarchists.

Liberal leftists happen to be the extreme feminists who think of men on a Lifetime for Women basis. Liberal rightist tend to be the extreme humanitarian efforts like Green Peace (God bless them) or in some cases Marxists.

What boils my blood a bit about the current body of government is the amount of time they spend arguing over each other’s records and debating the interests of their financial backers rather than thinking of what is right for the minor fraction of grater good and commen seance needed for We The People of the United States.

Congress can be, left, right, conservative, liberal, democrat, or republican, and they will still be busy squabbling like chickens not thinking of anyone but themselves. That is the current problem in the US.

Wally (profile) says:

Commentary on the 2008 Amendments to FISA

I would like to point out that the Foreighn Intelegence Serveillance Act of 1978 was just fine. It the provisions in the 2007 and 2008 amendments that are most agregious to the 4th amendment.

Excerpt from Wikipedia:
The Protect America Act of 2007 (PAA), (Pub.L. 110-55, 121?Stat.?552, enacted by S. 1927), is a controversial amendment to the Foreign Intelligence Surveillance Act (FISA) that was signed into law on August 5, 2007. It removed the warrant requirement for government surveillance of foreign intelligence targets “reasonably believed” to be outside of the United States.[1] The FISA Amendments Act of 2008 repealed the Protect America Act, but replaced it with similar provisions in Title VII of FISA.

Meaning warrants are not required with “probable cause” during surveillance of Foreighn entities. This explains why the DOJ thinks they could handle the Megaupload case as they did.

The 2008 Amendment to FISA 1978 is much much worse:
1. Prohibits the individual states from investigating, sanctioning of, or requiring disclosure by complicit telecoms or other persons.
Telecoms added this to prevent the states from investigating their illegal practices….6 strikes anyone?

2. Permits the government not to keep records of searches, and destroy existing records (it requires them to keep the records for a period of 10 years).
That’s just great. They don’t have to keep records of when they search you or tap your wires or monitor your communications. That is a clear violation of the 4th Amendment to the US constitutional bill of rights. Oh if the evidence that you’ve been proven innocent is destroyed, that has the potential to destroy the Double Jeoperdy clause.

3.Protects telecommunications companies from lawsuits for “‘past or future cooperation’ with federal law enforcement authorities and will assist the intelligence community in determining the plans of terrorists.” Immunity is given by a certification process. The certification can be overturned by a court on specific grounds.
Once again, how the 6 strikes program became legalized in the US.

4. Removes requirements for detailed descriptions of the nature of information or property targeted by the surveillance if the target is reasonably believed to be outside the country.
One word alone can describe a recent incident….Megaupload.

5. Increased the time for warrantless surveillance from 48 hours to 7 days, if the FISA court is notified and receives an application, specific officials sign the emergency notification, and relates to a U.S person located outside of the U.S with probable cause they are an agent of a foreign power. After 7 days, if the court denies or does not review the application, the information obtained cannot be offered as evidence. If the United States Attorney General believes the information shows threat of death or bodily harm, they can try to offer the information as evidence in future proceedings.
Well who wants this with Atorney General Eric Holder in power?

6. Permits the Director of National Intelligence and the Attorney General to jointly authorize warrantless electronic surveillance, for 1-year periods, targeted at a foreigner who is abroad. This provision will sunset on December 31, 2012.
This did not ever happen under the Bush Jr administration.

7. Requires FISA court permission to target wiretaps at Americans who are overseas.
What interest the Feds will have with my Archtect sister Working for Starbucks in China when she calls home I’ll never know. Oh, and while I’m in the subject, ive answered the phone with her voice and a PRC office could be heard in the background during her pre-Starbucks contracts.

8. Requires government agencies to cease warranted surveillance of a targeted American who is abroad if said person enters the United States. (However, said surveillance may resume if it is reasonably believed that the person has left the States.)
This applies to all of us. I just hope my wife doesn’t find out thevfeds listened in on our sexting during our Cancun honeymoon.

9. Prohibits targeting a foreigner to eavesdrop on an American’s calls or e-mails without court approval.[17]
Well at least someone thought of scenarios simular my comment to number 8. Mexico, it’s none of your goddamn business what I say to
My wife… Though this doesn’t make it right for the Feds either.

10. Allows the FISA court 30 days to review existing but expiring surveillance orders before renewing them.
That’s most likely 30 days more they will be watching you.

11. Allows eavesdropping in emergencies without court approval, provided the government files required papers within a week.
Ok, what if the wrong papers are filed? Oh I know, barge in anyway. Seize the mansion of an extremely loveable and eccentric tech.

12. Prohibits the government from invoking war powers or other authorities to supersede surveillance rules in the future.
Screams of “this is MY jurisdiction bub, stay the fuck out”.

13. Requires the Inspectors General of all intelligence agencies involved in the President’s Surveillance Program to “complete a comprehensive review” and report within one year.
Prevents another watergate from happening…this means cover up whatever crime the President commits during his time in office.

Source for the Privisions:
http://en.m.wikipedia.org/wiki/FISA_Amendments_Act_of_2008#section_3

David says:

Re:

Wrong. We already know that they’ve changed the meanings of words to mean almost the opposite of what anyone but the NSA itself would consider their meaning (“collect” for example,) and have actually lied to congress (Clapper’s “no”.) Then it becomes pretty damn clear that they are overstepping the bounds and they know they are overstepping those bounds.

If they believe that ‘collecting’ (in the sense the NSA is using it, ie: gather but don’t look) is constitutional, then there would be no need to twist the meaning .. they could simply say, ‘yes we collect all that data but we don’t look at it without a warrant’ … if they thought that was legal then they could have said that straight out .. but they know that if they used that argument to say “yes, we break into your home, make copies of all your documents, but we would never look at them without first getting a warrant”, they’d not only be laughed out of court, they’d be sitting in a prison cell right now.

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