FISA Court Still Uncovering Surveillance Abuses By NSA, FBI

from the pretty-much-why-the-transparency-should-have-been-in-place-the-whole-time dept

With multiple redactions and having survived a declassification review, another FISA court opinion has been released to the public. The opinion dates back to November of last year, but was only recently dumped into the public domain by the Office of the Director of National Intelligence. While the five-month delay seems a bit long, the alternative is no public release at all. The small miracle that is the public release of FISA court opinions can be traced directly to Ed Snowden and a handful of FOIA lawsuits — not that you’ll see either credited by the ODNI when handing over documents.

The bad news is that the FISA court has uncovered still more abuse by the NSA and FBI. While there appears to be no imminent danger of the court yanking the agencies’ surveillance privileges (as nearly happened in 2008), the presiding judge (Thomas Hogan) isn’t impressed with the agencies and their cavalier attitude towards mass surveillance. The stipulations put in place to offset the potential damages of untargeted mass surveillance — strict retention periods and minimization procedures — are the very things being ignored by the NSA and FBI.

Josh Gerstein of Politico has dug into the 80-page decision and discovered that the NSA is still holding onto collected data indefinitely.

“The court was extremely concerned about NSA’s failure to comply with its minimization procedures—and potentially” a provision in federal law, Hogan wrote. The NSA violations appeared to involve preserving surveillance data in its systems beyond the two or five years after which it was supposed to be deleted.

“Perhaps more disappointing than the NSA’s failure to purge this information for more than four years, was the Government’s failure to convey to the Court explicitly during that time that the NSA was continuing to retain this information,” the judge wrote in the Nov. 6, 2015, opinion made public Tuesday.

The NSA apparently can’t even tell the truth to a court in which it has the luxury of making its submissions ex parte and whose decisions aren’t released until months after the fact in heavily-redacted form.

The ODNI has defended its actions using the “sins of omission” clause (not actually a thing).

“The Government has informed the Court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer…”

Not mentioned in the pseudo-mea culpa is the fact that the “misimpressions” were based on “prior representations” made by the government over a period of several years. Judge Hogan refers to the NSA and FBI’s abuses as “compliance issues,” which sort of undercuts the irritation shown in the opinion — as if illegal surveillance were nothing more than misplaced MSDS sheets.

Fortunately, Judge Hogan doesn’t let the NSA’s co-signer — the FBI — off the hook for its abuses. While the FBI is allowed to partake in the NSA’s data haul to collect info on criminal investigation targets located overseas, the communications collected must be reviewed by a “taint team” to ensure that any privileged communications (suspects’ correspondence with legal representation, etc.) are removed from the collection. Privilege, schmilege.

Hogan said the FBI revealed some such incidents in 2014, but the number was redacted from the opinion made public Tuesday. “The government generally attributed those instances to individual failures or confusion, rather than a ‘systematic issue,’ ” Hogan wrote. However, more incidents occurred from mid-2014 and through 2015, although again the precise number was not released. In some instances, FBI agents believed, incorrectly, that they didn’t need to set up a review team if the indictment was under seal or outside the U.S.

The FBI’s excuses for these failures range from merely sad to WTF. It’s almost impossible to see how it could reach the conclusion that it should have access to privileged communications simply because of a sealed indictment. Sealed indictments are the bread-and-butter of FBI-related prosecutions, especially now that it’s a full-time participant in the War on Terror. According to this assertion, the FBI apparently believes it should have access to scooped up attorney-client communications in a vast majority of its investigations.

The decision notes the FBI has put new minimization procedures in place. Much like the FBI, the judge won’t discuss the new procedures in detail. The opinion only notes that he is “satisfied” the FBI is “addressing the issue.” Hopefully, the new controls are much tighter than the previous set, as the administration has announced it’s granting the FBI even more access to NSA data hauls. Of course, the FBI has shown repeatedly — over the entire history of the agency — that it will craft policies stipulating inches and help itself to several yards.

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Comments on “FISA Court Still Uncovering Surveillance Abuses By NSA, FBI”

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That One Guy (profile) says:

Empty threats

Without actual penalties for abuses of power the various government agencies have absolutely no reason to care what jokes like the FISA ‘court’ say or order. What are they going to do, expresses disappointment or annoyance and politely ask that the agency in question do better next time? Again?

Without consistent, heavy penalties any laws or rules from a judge will be considered easily ignored guidelines, something to follow only to the extent that doing so doesn’t keep an agency from doing something that they want to, and completely ignored otherwise.

Anonymous Coward says:

While there appears to be no imminent danger of the court yanking the agencies’ surveillance privileges (as nearly happened in 2008), the presiding judge (Thomas Hogan) isn’t impressed with the agencies and their cavalier attitude towards mass surveillance.

I call absolute puerile bullshit on this one. Just how far do they have to go before this threat should be considered anything other the public theater? When they start sterilizing dissidents? Shit America has clandestinely experimented on citizens and conducted absolutely inhuman trials on people in its own history.

No wonder most people will be going to hell. I think everyone that says they give a shit is nothing more than “lip service mouth pieces” buying nothing other than public opinion. At the end of they they go home and say fuck everyone else with a different opinion than me just like all the bastards they hate!

These judges have nothing to fear or to give a fuck about. They are just glorified rubber stamps puffing their worthless ass coward chests out to just “appear” to give any kind of a damn about the American people. They are every bit a part of the corrupt system of “IN-JUSTICE” running unchecked all over the US.

Anonymous Coward says:

Justice is subjective

Since the idea of justice is malleable and ill-defined, they just assume you want the same thing they do. Secret courts, secret interpretations and secret surveillance all cancel each other out and equal a corrupt illegal system. Secret laws are not legal and everyone pretending they are need to be removed.

Coyne Tibbets (profile) says:

We didn't really lie...

“The Government has informed the Court that there was no intent to leave the FISC with a misimpression or misunderstanding, and it has acknowledged that its prior representations could have been clearer…”

But hey, no intent to create a misimpression or misunderstanding though. Maybe an intent to outright bamboozle, dupe, gull or hoodwink the FISC; but what’s a little perjury before a rubber-stamp court?

JB Smith says:

surviellance torture

The American Reinvestment and Recovery Act and the brain initiative are the worst scams ever perpetrated on the American people. Former U. S. Surgeon General Regina Benjamin Warns: Biochips Hazardous to Your Health: Warning, biochips may cause behavioral changes and high suicide rates. State Attorney Generals are to revoke the licenses of doctors and dentists that implant chips in patients. Chip used illegally for GPS, tracking, organized crime, communication and torture. Virginia state police have been implanting citizens without their knowledge and consent for years and they are dying! Check out William and Mary’s site to see the torture enabled by the biochip and the Active Denial System. See Terrorism and Mental Health by Amin Gadit or A Note on Uberveillance by MG & Katina Michael or Safeguards in a World of Ambient Intelligence by Springer or Mind Control, Microchip Implants and Cybernetics. Check out the audio spotlight by Holosonics. The truth is the biochip works like a sim card. It received pulsed modulated laser beams and millimeter wave which it converts into electromagnetic waves that your brain interprets into digital images and sound. It then takes what your brain sees and hears and converts electromagnetic waves into digital and acoustic waves that a computer translates into audio and video. In other words, it allows law enforcement to see what you see, hear what you hear and communicate directly with your brain.

“Former Defense Advanced Research Projects Agency (DARPA) director and now Google Executive, Regina E. Dugan, has unveiled a super small, ingestible microchip that we can all be expected to swallow by 2017. “A means of authentication,” she calls it, also called an electronic tattoo, which takes NSA spying to whole new levels. She talks of the ‘mechanical mismatch problem between machines and humans,’ and specifically targets 10 – 20 year olds in her rant about the wonderful qualities of this new technology that can stretch in the human body and still be functional. Hailed as a ‘critical shift for research and medicine,’ these biochips would not only allow full access to insurance companies and government agencies to our pharmaceutical med-taking compliancy (or lack thereof), but also a host of other aspects of our lives which are truly none of their business, and certainly an extension of the removal of our freedoms and rights.” Google News

The ARRA authorizes payments to the states in an effort to encourage Medicaid Providers to adopt and use “certified EHR technology” aka biochips. ARRA will match Medicaid $5 for every $1 a state provides. Hospitals are paid $2 million to create “crisis stabilization wards” (Gitmo’s) where state police torture people – even unto death. They stopped my heart 90 times in 6 hours. Virginia Beach EMT’s were called to the scene. Mary E. Schloendorff, v. The Society of New York Hospital 105 N. E. 92, 93 (N. Y. 1914) Justice Cardozo states, “every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages. (Pratt v Davis, 224 Ill. 300; Mohr v Williams, 95 Minn. 261.) This case precedent requires police to falsely arrest you or kidnap you and call you a mental health patient in order to force the implant on you. You can also be forced to have a biochip if you have an infectious disease – like Eboli or Aids.

Coalition of Justice vs the City of Hampton, VA settled a case out of court for $500,000 and removal of the biochip. Torture is punishable by $1,000 per day up to $2 million; Medical battery is worth $2.05 million. They told my family it was the brain initiative. I checked with the oversight board, and it is not! Mark Warner told me it was research with the Active Denial System by the College of William and Mary, the USAF, and state and local law enforcement. It is called IBEX and it is excruciating. I have had 3 surgeries at the site of the implant and need another. It causes cancer! I’ve been tortured for 8 years by Virginia law enforcement. Thousands of innocent Virginians are being tortured and murdered by criminal cops. Please help us get the word out to end these heinous atrocities. The pain is 24/7. The VA DCJS sent me a letter stating cops can get keys to anyone’s home and steal anything they please. The governor knows and takes his cut. Senator Kaine said the FBI is not involved so he can’t help. Check out Virginia’s Casual Disregard for the Constitution at forbes dot com. Check out Richard Cain’s case. They are torturing infants and children. The active denial system comes in rifle form and can murder without leaving a mark. I have had two heart attacks and am blessed to be alive. We need to make the nation aware to stop these thugs. Please help us.

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