FISA Judge To Yahoo: If US Citizens Don't Know They're Being Surveilled, There's No Harm

from the so,-more-of-the-same,-except-retroactively? dept

A legal battle between Yahoo and the government over the Protect America Act took place in 2008, but details (forced from the government’s Top Secret file folders by FISA Judge Reggie Walton) are only emerging now. A total of 1,500 pages will eventually make their way into the public domain once redactions have been applied. The most recent release is a transcript [pdf link] of oral arguments presented by Yahoo’s counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).

Zwillinger opens up the arguments by questioning the government’s methods of determining who should be placed under surveillance.

Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name gets on this list; and all we know about it from page 47 of their brief, is that an intelligence analyst puts it on the list.

From this arbitrary beginning springs a wealth of errors.

[REDACTED] of the accounts we have been given do not exist. They aren’t accounts at Yahoo. Whether the government is misinformed, or using stale information, we don’t know; But the fact that [REDACTED] accounts do not exist raises a serious possibility that some of those accounts have already been recycled and are used by other Yahoo users, or that the information that the government has is just wrong, and the wrong is being placed under surveillance.

Zwillinger points out that Yahoo is just one provider and yet has (the number is redacted, but is at least 4 digits with a comma) a large number of accounts under surveillance. He then refers to the multiple errors again, stating that when the government screws up, it’s very likely that American citizens will be mistakenly placed under surveillance.

The difference between a U.S. person and a non-U.S. person in this context could be a letter or a digit in an email address; and if they have it wrong, the consequences will likely be felt here, because more Yahoo users are from the United States than any other single country.

The judges claim minimization procedures eliminate the problem of inadvertent collections, but Zwillinger points out that the surveillance carried out under the Protect America Act actually doesn’t contain protections against use of wrongly swept up US persons’ communications and data.

The government’s response begins by denying that US persons’ data is retained. “There is no database,” says Gregory Garre, before having to admit a few sentences later, that incidental data is retained (and distributed) if there is evidence of other, non-national-security-related criminal activity.

Garre then goes on to explain why the government feels it should have warrantless access to US persons’ communications, routed through and stored at US servers. He refers to satellite communications — something in use when FISA was enacted in 1978. Garre says that even though these communications may have been captured by domestic satellite receivers, it’s the point of origin that matters. Outside the US? No warrant needed, even for US persons. Likewise for emails stored on Yahoo servers.

MR. GARRE: I don’t think anybody would argue that the Fourth Amendment would apply to that communication, even though the email communications go to account in Sunnyvale, California. I haven’t understood Yahoo to argue that the Fourth Amendment would be implicated by that.

And, similarly, the Fourth Amendment isn’t —

JUSTICE SELYA: You mean the interception there by you and Yahoo would not implicate the Fourth Amendment?

MR. GARRE: That Certainly would be the government’s view.

Garre also blames the large number of dead accounts in the court orders on Yahoo’s refusal to immediately comply, while simultaneously spinning it as the unavoidable collateral damage of “efficient” surveillance.

So the fact that accounts have been closed is not significant, and that’s particularly true given that the large number of email accounts here is reflected by the fact that Yahoo is in noncompliance for several months. So, if you go back several months, it’s not surprising that several accounts have been closed.

Garre asserts that if anyone deserves the benefit of a doubt in this situation, it’s the US government. He states that the Executive Branch and the intelligence community have a long-standing history of not violating the rights of US citizens — a statement that wasn’t even mostly true prior to the 9/11 attacks, and is almost laughable in the wake of what’s been uncovered since then. He also points to Congressional oversight and suggests its legislative powers would have been used to rein in the NSA and others if it had actually seen signs of abuse.

In his rebuttal, Zwillinger punches holes in Garre’s narrative.

You know, the Solicitor General talks about Congress spoke here, but to the extent Congress has spoken, then they turn around and admit they misspoke. And now they have a Senate report that says we failed to provide adequate protections for U.S. persons, and we are going to pass new legislation. They intentionally let the Protect America Act lapse. So to the extent congressional oversight even exists after February 16, 2008, which I’m not sure it does, it provides no check. Congress can’t do anything differently. The statute has passed. The directives continue all the way until the expiration date, but the statute doesn’t exist any more. It’s not Congress’s current view of how surveillance should he conducted.

But the most surprising assertions made in these oral arguments don’t come from the Solicitor General. They come from Judge Morris S. Arnold, who shows something nearing disdain for the privacy of the American public and their Fourth Amendment rights.

In the first few pages of the oral arguments, while discussing whether or not secret surveillance actually harms US citizens (or the companies forced to comply with government orders), Arnold pulls a complete Mike Rogers:

If this order is enforced and it’s secret, how can you be hurt? The people don’t know that — that they’re being monitored in some way. How can you be harmed by it? I mean, what’s –what’s the — what’s your — what’s the damage to your consumer?

By the same logic, all sorts of secret surveillance would be OK — like watching your neighbor’s wife undress through the window, or placing a hidden camera in the restroom — as long as the surveilled party is never made aware of it. If you don’t know it’s happening, then there’s nothing wrong with it. Right? [h/t to Alex Stamos]

In the next astounding quote, Arnold makes the case that the Fourth Amendment doesn’t stipulate the use of warrants for searches because it’s not written right up on top in bold caps… or something.

The whole thrust of the development of Fourth Amendment law has sort of emphasized the watchdog function of the judiciary. If you just look at the Fourth Amendment, there’s nothing in there that really says that a warrant is usually required. It doesn’t say that at all, and the warrant clause is at the bottom end of the Fourth Amendment, and — but that’s the way — that’s the way it has been interpreted.

What’s standing between US citizens and unconstitutional acts by their government is a very thin wall indeed.

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Comments on “FISA Judge To Yahoo: If US Citizens Don't Know They're Being Surveilled, There's No Harm”

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59 Comments
Anonymous Coward says:

By this logic...

We should outlaw investigatory practices.

If nobody ever investigates alleged wrongdoing, then there can never be any proof that something wrong has been done.

If there’s no proof, then it never happened.

Why do we even have regulatory bodies in the first place? If we don’t know what’s bad for us, it’s not bad for us… we should be able to eat poisonous food, live in lead-painted houses with asbestos materials, and smoke tobacco carefree! GODDAMN those people who revealed that this stuff was bad for us! If they hadn’t ever revealed that information, we’d be happy people, living our long lives without worry.

Anonymous Coward says:

Re: By this logic...

Why do we even have regulatory bodies in the first place?

So dipshits like this judge can get elected regardless of their ignorance and general contempt for the citizenry, and they’ll have someone to talk (scream, piss, fume) to in the end about stuff they can’t/won’t understand? That’s what it looks like. Don’t ask me to explain the why.

What a stupid situation. I can’t believe someone this shallow was elected to adjudicate differences in law.

USA!!!11 USA is doomed.

Anonymous Coward says:

“FISA Judge To Yahoo: If US Citizens Don’t Know They’re Being Surveilled, There’s No Harm”

In that case there will be no harm done to the Judge should some organisation have him surveilled and he will have no grounds to sue if he doesn’t know about it but somehow i am sure that he will come up with some grounds for the same act not to apply to him as it does for Yahoo.

That One Guy (profile) says:

The Peeping Tom Defense

The people don’t know that — that they’re being monitored in some way. How can you be harmed by it?

“But your Honor, they had no idea that I’d installed cameras in the bedrooms and bathrooms, what was the harm?”

It never ceases to surprise and disgust me when people who really should know better put forward the Peeping Tom Defense. It’s not even subtle, that exact same argument, applied elsewhere, would justify acts that are clearly illegal under the law.

Want to spy on someone in the bathroom with a hidden camera? No problem, so long as they never find out.

Want to listen in on someone’s phone calls? Not a problem, just don’t let them find out.

Curious about the contents of someone’s mail? Open away, just make sure to seal it back up once you’re done.

Any one of these actions would get the prosecution an easy win, especially if the defendant tried the government’s excuse of ‘But they didn’t know about it at the time, so no harm was done!’, and yet you’ve got judges and politicians trotting it out as though it’s this brilliant excuse.

Anonymous Coward says:

I wonder if the FISA court takes the same stance against our constitutional rights, as well? So, if we don’t know our rights are being abused, then there’s no harm? Not only that, but we can;t even find out if our rights are being violated because the FISA court won’t allow Americans to obtain that information from the government.

Wow. What a screwed up way of thinking. So, this means that Americans are allowed to violate the rights of government employees, judges, police officers and what not and there’s no harm?

Hell, I like that idea. So, let’s go out and violate the rights of everyone in government and in law enforcement and see how they like it.

That One Guy (profile) says:

Bah, pressed enter too soon. Meant to add:

I mean, it doesn’t surprise me that someone on the FISA ‘court’ would use that excuse, if the NSA was caught murdering puppies on camera they’d find some way to excuse it(‘They were clearly a threat to National Security because [REDACTED]’), but you’d think other politicians would see how insanely weak that argument is.

Anonymous Coward says:

Unintentional hilarity

He also points to Congressional oversight and suggests its legislative powers would have been used to rein in the NSA and others if it had actually seen signs of abuse.

This might be true. The behavior of the various intelligence committees strongly suggests a motto of “See No Evil, Hear No Evil, Oversee No Evil.” The NSA et al routinely fail to inform Congress of abuses. On those rare occasions when Congress is informed through other channels, (most of) its members are willfully blind to the abuse, and some even go out of their way to keep their colleagues unaware as well. With that kind of attitude, it’s easy to believe that Congress has seen no signs of abuse, despite them being writ large for everyone to see.

Anonymous Coward says:

“I mean, what’s –what’s the — what’s your — what’s the damage to your consumer?”

Why is he talking about consumers? Which leads me to my next point…

“If this order is enforced and it’s secret, how can you be hurt? “

Here’s one bit of damage right now. I feel disinclined to read the pdf in order to answer my question because ….

” The people don’t know that — that they’re being monitored in some way”

BUT I DO KNOW!

Anonymous Coward says:

Re: Re:

That Fourth Amendment quote is amazing, not least because I can’t follow Arnold’s logic.

Assuming that one does ignore “the whole thrust of the development of Fourth Amendment law” and throws out the part about warrants, then “the right of the people to be secure…against unreasonable searches and seizures shall not be violated…”. He’s admitting that the spying has major Fourth Amendment implications regardless of the issues with the warrants.

Anonymous Coward says:

Re: Re:

“Is there seriously no way to disbar a judge for extreme stupidity?”

Regretfully not at the federal level. Judges are lifetime appointments by the US Constitution. (And I would support an amendment to change that.)

At state/local levels you have either elected or appointed judges subject to ‘retention’ votes. This last election saw Arizona vote NOT to retain a judge, so removing a judge is possible, albeit rare.

Anonymous Coward says:

” If you just look at the Fourth Amendment, there’s nothing in there that really says that a warrant is usually required. It doesn’t say that at all, and the warrant clause is at the bottom end of the Fourth Amendment, and — but that’s the way — that’s the way it has been interpreted.”

If Congress were to pass a law stating that the Fourth Amendment may only be read at midnight with the lights off, we’ll have solved the problem entirely with no need for all this waste of court time.

Anonymous Coward says:

historical practice makes it ok?

I’m concerned by the governments argument that historical practice is a key factor in determining constitutionality. The Supreme Court has not said that electronic Surveillance of overseas Americans is OK. But, they argue the fact the Feds have been getting away with it since the invention of radio should count in the governments favor.

It makes me think long and hard about other questionable things the government is doing without Supreme Court approval. The longer we let them get away with extra-judicial drone killings, TPP negotiations without congressional direction, etc. the more normal those practices become legally in the executives opinion.

Anonymous Coward says:

CONGRESSIONAL OVERSIGHT HAS BEEN USED TO REIGN IN THE NSA?

Seriously? Did the poster up above actually use that argument? It’s congress that created this problem in the first place and it’s congress who continue to allow the NSA to do what they are doing.

Each time these surveillance and monitoring programs come up for renewal, members on both sides of the aisle unanimously vote for passage and the president blindly signs it back into law.

Congressional oversight is a fucking joke and its the morons in this country who keep re-electing the same morons who support these laws.

Anonymous Coward says:

It's only [blank] if you get caught.

– It’s only cheating if you get caught.
– It’s only stealing if you get caught.
– It’s only trespassing if you get caught.
– It’s only smuggling if you get caught.
– It’s only lying if you get caught.
– It’s only spying if you get caught.
– It’s only illegal if you get caught.
– It’s only an obstruction of rights if you get caught.

Wow… this is fun.
(Please use caution before, during, and after your visit to the above site. Your lost time will not be refunded.)

Anonymous Coward says:

seems about right

There is no harm to those that seek to nurture this “above the law” regime imposed by these new enforcers. Secrecy is an enabler and they are still rather well equipped.

It’s my immediate opinion that all those that enabled these clearly domestic collections should be stripped of their incomes, pensions and liberties as those that ordered and executed knew precisely what they were doing. Those initial events could cost us a good country, permanently, and then some.

Zonker says:

If you just look at the Fourth Amendment, there’s nothing in there that really says that a warrant is usually required. It doesn’t say that at all, and the warrant clause is at the bottom end of the Fourth Amendment, and — but that’s the way — that’s the way it has been interpreted.

If you just look at the US Constitution, there’s nothing in there that really says that the judicial powers of the United States shall be invested in the FISA courts. It doesn’t say that at all, and the judicial clause (Article III) is at the bottom end of the US Constitution, and — but that’s the way — that’s the way it has been interpreted.

See, we can play the same game as you do “Judge” Morris S. Arnold.

Zonker says:

Re: Re:

Plus, if we take your argument that the “bottom end of the Fourth Amendment” is not relevant then we are left with this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

I’d say that forbids any search or seizure not consented to by the people.

Uriel-238 (profile) says:

Re: Re: That might be feasible with today's technology.

Considering the way the DoJ and our Law Enforcement now conduct themselves, which is to search and seize until expressly forbidden to do so (and even then), I’d say that this is not necessarily a bad revision.

These days, detection science (forensics) and good old fashioned detective work should be more than sufficient to solve most crimes, if we bothered to apply them.

We don’t. Instead we put a ridiculous number of innocent people into the slammer based on cops lying to judges. And we have more people jailed per capita than any other nation including the wack-jobs like China and North Korea.

Anonymous Coward says:

Well, how about this?

So if a person is affected by a secret law, and doesn’t know it, they are not technically affected.
AND if a person doesn’t know the law, but breaks it, they can be arrested and charged with the crime.

What if (and I’m just spit-balling here)…a person breaks a secret law that they didn’t know about?

Does the universe fold in on itself at that point?

Anonymous Coward says:

I am amazed these individual judges for FISA exist and that they were able to be tracked down and convinced to serve on such a court.

We have here the superheros of the justice system. Judges who can not be corrupted by moral choice that could be set up by various agencies as they do other criminals they seek. Every one can assume there would never be any pictures of child pedo in existence of such a judge. That they would never, ever, be tempted into a honeypot that would be recorded for future posterity. That they could never be bribed with what ever is their heart’s desire and that have that captured on media. None of this can possibly occur with the superior qualities these judges have over ruling for the security apprati. /Satire at large warning!!!

They are doing something with all that spying data, what could it possibly be used for, since it doesn’t appear to be catching terrorists?

Cal (profile) says:

Starting with the Preamble to the Bill of Rights, understanding that Preambles basically summarize what is in the document (Preamble to the US Constitution), and here, specifically the Bill of Rights (caps are mine to put emphasis on specific points).

“Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, IN ORDER TO PREVENT MISCONSTRUCTION OR ABUSE OF ITS POWERS, that FURTHER DECLARATORY AND RESTRICTIVE CLAUSES SHOULD BE ADDED: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution…”

The Bill of Rights was written and added to the US Constitution because no one believed that those who went into governmental positions could be trusted, to PREVENT governmental overreach and abuses; and it does so in plain language.

Fourth Amendment: “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.”

What part of “SHALL NOT BE VIOLATED” does FISA Judge Reggie Walton, Judge Morris S. Arnold, etc not understand? This forbids any governmental employee – elected, hired, contracted, etc – from violating the security of the people.

Then if there is probable cause, and the US Constitution which ALL laws, etc MUST be in Pursuance thereof says that NO THIRD party saying “he said, she did”, but MUST done with a WARRANT that must be issued in ONE (1) way ONLY to be lawful here in the USA.

“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.”

Once again;

“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.”

Which has two governmental limitations stated in within this amendment.

1. The citizens are to be secure in their person, home, papers, and property, from unreasonable searches and seizure.

In other words they have the privacy to go about their lives without worrying whether the government will invade them. This amendment was to ensure that the government does not trespass on the people nor take anything from the people without following correct legal procedure.

2. The government is restrained from taking either person or property without first getting a warrant, and only after proving probable cause.

This, however, is only as valid as the judge is honest as everyone reading this can see. There have been cases in which corrupt judges have signed blank warrants, and the details were/are not filled in until after serving the warrant.

This amendment is not a grant of right, but solely a limitation on the government to ensure that they do not trespass beyond their enumerated powers. The Bill of Rights are PROTECTIONS for the citizens of the USA FROM those who serve within our governments.

Judges only are allowed to remain in the positions they occupy as long as they use “Good Behaviour” within the courtroom.

US Constitution, Article III. Section. 1:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

James Madison, Federalist 39, 250 – 53: “According to the provisions of most of the constitutions, again, as well as according to the most respectable and received opinions on the subject, the members of the judiciary department are to retain their offices by the firm tenure of good behaviour.”

James Wilson, Pennsylvania Ratifying Convention: “… The tenure by which the Judges are to hold their places, is, as it unquestionably ought to be, that of good behaviour.”

Tucker’s Blackstone, Volume I, Chapter 1 regarding how the Oath applies to the judiciary: “But here a very natural, and very material, question arises: how are these customs or maxims to be known, and by whom is their validity to be determined? The answer is, by the judges in the several courts of justice. They are the depositaries of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the supreme law of the land, the U.S. Constitution.
Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice;…”

The judicial branch of the federal government is not in place to “interpret” the Constitution of the United States of America, but to decide if a law, bill, treaty, case is IN PURSUANCE THEREOF – they are to make sure that they are following the US Constitution.

Thomas Jefferson: “…To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps…and their power is more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such tribunal, knowing that to whatever hands confided, with the corruption of time and party, its members would become despots….”
Thomas Jefferson: “The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

James Madison: “But it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort”

Alexander Hamilton: “Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

John Marshall: Opinion as Chief Justice in Marbury vs. Madison: “The particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, are bound by that instrument.”

The judicial was set to be totally separate from, and not under the power of, either the executive branch or the legislative branch. They were to be an independent branch that was taxed with the duty of making sure that the other two branches, plus the states, actions were “in Pursuance thereof” the US Constitution. They were to make sure that laws did not encroach on the people’s unalienable natural rights in any way.

When judges are doing their duty as assigned to them by the US Constitution, and are KEEPING their Oaths (or the one combined Oath) they are using “Good Behaviour”.

Behavior refers to actions being done, and good behavior is actions being done as supposed to be, as assigned; range of actions and mannerisms made by individuals, organisms, systems, or artificial entities.

“We the people” as jurors decide guilt or innocence, and decide if the law being applied is a good one, or we toss it. We the people decide if a judge is using “Good Behaviour” in the courtrooms as is required of them.

Coyne Tibbets (profile) says:

Without warrants, you have nothing!

It’s bad enough that Judge Arnold thinks that seizing data is only illegal if the intelligence agencies get caught.

His construction of the Fourth Amendment is even worse. Suppose we leave out the warrants clause, which he undoubtedly thinks is completely unneeded, since he says, “[…]there’s nothing in there that really says that a warrant is usually required.”

That leaves just the first part of the Fourth Amendment, which is, “The right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.”

Emphasis on, “[…] shall not be violated.” That means that, without a warrant, every search and seizure by the government is a violation of the citizen’s rights. Without that “warrants” clause, there is no justification for the government to search or seize anything.

So, Judge Arnold, what about it?

nasch (profile) says:

Re: Without warrants, you have nothing!

That leaves just the first part of the Fourth Amendment, which is, “The right of the people to be secure in their persons, houses, papers, and effects, shall not be violated.”
Emphasis on, “[…] shall not be violated.” That means that, without a warrant, every search and seizure by the government is a violation of the citizen’s rights. Without that “warrants” clause, there is no justification for the government to search or seize anything.

Except you left out part of it. The beginning says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” So police could still conduct any searches deemed reasonable without violating the Constitution. I think it’s better the way it is.

Uriel-238 (profile) says:

Re: Re: Laws that cannot be interpreted by a computer...

Probable cause, supported by Oath or affirmation

…seem to be a plague on society once enforced by fools or tyrants.

Anytime someone uses an ambiguous phrase (e.g. unreasonable searches, it seems that phrase tends to be used to oppress the people.

no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.

The warrant clause is ambiguous as love. No wonder it’s an engine for home invasion by state.

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