NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment

from the legal-loopholes dept

We already wrote about the bombshell revelation from the Guardian that the NSA changed the rules in October of 2011, so that it had permission to do warrantless searches on US persons (contrary to public claims). However, Marcy Wheeler recognized the date of that update is the very same date that the FISA court supposedly smacked down the NSA for violating the 4th Amendment with some searches.

If you don't recall, about a year ago, under pressure from Senator Wyden, the US government admitted (late on a Friday evening) that, indeed, the FISA court had "on one occasion" ruled that certain activities concerning Section 702 "minimization" (i.e., trying to avoid searches on US persons) were "unreasonable under the Fourth Amendment." And yet, that very same day, the NSA announced that the rules had changed and it could do searches on US persons, following a certain (undisclosed) "oversight process." Wheeler notes that the NSA seems to have interpreted the FISA court smacking it down for spying on Americans as a form of permission to spy on Americans:

The FISC Court didn't just "approve" minimization procedures on October 3, 2011. In fact, that was the day that it declared that part of the program violated the Fourth Amendment.

So where the glossary says minimization procedures approved on that date "now allow" for querying US person data, it almost certainly means that on October 3, 2011, the FISC court ruled the querying the government had already been doing violated the Fourth Amendment, and sent it away to generate "an effective oversight process," even while approving the idea in general.

And note that FISC didn't, apparently, require that ODNI/DOJ come back to the FISC to approve that new "effective oversight process."

Wheeler goes further, providing details from the discussion in the Senate Intelligence Committee during the debate over reauthorizing the FISA Amendments Act (which is where 702 comes from), in which it was strongly hinted that the FISA court had "concerns" about this very type of backdoor searching, and despite acknowledging this, no one bothered to close that backdoor. In fact, it now appears that the NSA and the Director of National Intelligence may have used all of this as a cover to argue that they are authorized to do these kinds of searches.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Hephaestus (profile), Aug 9th, 2013 @ 10:53am

    It occurred to me, that until we have laws in place that include jail time, for politicians and government personnel, for violating the constitution, this is not going to stop.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, Aug 9th, 2013 @ 11:16am

    you have to admit, they were fucking sneaky! however, it's no good just 'smacking down' the NSA (or any other security agency) unless those sitting on the 'oversight committees', if you can call FISC/FISA that (more like another, awkward step that is used to say 'we did what we needed to. just look! knowing full well that no one can, even if they wanted to!), get as big a smacking down as well! what really needs to happen is all those in the high ranking positions need to be retired, including those on the secret courts and never be allowed to communicate with those that take their places, let alone be back in similar positions. starting from scratch, with completely new staff that are vetted correctly is the only way to move forward

    reply to this | link to this | view in thread ]

  3. identicon
    Michael, Aug 9th, 2013 @ 11:48am


    never be allowed to communicate with those that take their places

    The good news is, if they decided to implement your plan the NSA would be able to track this behavior!

    reply to this | link to this | view in thread ]

  4. icon
    ShellMG (profile), Aug 9th, 2013 @ 11:53am

    The question nobody will answer:

    WHO is going to stop them?

    Congress won't. The USCOTUS has to hear a case before they act, and I doubt they'd rule favorably after the Obamacare debacle. Obama either doesn't care or doesn't know enough to care.

    They will continue to do it because they CAN.

    reply to this | link to this | view in thread ]

  5. identicon
    Anonymous Coward, Aug 9th, 2013 @ 12:04pm


    That's what I've been saying for weeks.

    reply to this | link to this | view in thread ]

  6. icon
    JohnG (profile), Aug 9th, 2013 @ 12:11pm


    gov't employees have sovereign immunity. you'd have to eliminate that first, and that isn't going to happen

    reply to this | link to this | view in thread ]

  7. identicon
    Anonymous Coward, Aug 9th, 2013 @ 12:37pm


    Secret service is a republican holy cow. Therefore there is very limited negative effect on Obama for continuing the insanity. Now, did the republicans hold on to the presidency for the last 6 years, this case would have literally exploded since the democrats would be able to put the blame on the republicans!

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, Aug 9th, 2013 @ 1:02pm

    This just keeps getting worse and worse as news is leaked out about the lies told and deeds done.

    The people are fed up with it. Big business is fixing to get fed up with when they find out some one has slipped in the other countries outside of US reach for domestic laws and sets up equivalent net and computer services.

    If there were anything that will push governments around the world to disconnect from Microsoft in favor of security, the bell has been rung loudly for attention.

    Again it shows the American people can not trust their government, they can't trust their officials and politicians, to come clean. What started out looking like they were just waiting for the discoveries and news to die down has taken a life of its own. Covering it up and band aiding the programs isn't going to work. Obama's statement of the US not having a surveillance program for American citizens inside the country barely got out of his mouth before it was shown he was lying. Every new revelation just shows more complicity in trying to hide it all.

    Other governments will now be putting pressure on the US over it's spying practices. This doesn't look like it will end well for the NSA. It's high time it was held accountable along with the administration and congress that enabled and kept it going.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Aug 9th, 2013 @ 1:59pm

    Nobody's upset. They have boiled the frog slow enough that it's all hunky dory, business as usual. Why do you think they put Snowden out there in the first place? To test the waters.

    reply to this | link to this | view in thread ]

  10. identicon
    Anonymous, Aug 9th, 2013 @ 2:57pm

    Re: Re:

    What I've been saying for years: If the government can violate the constitution and get away with violating the constitution, what good is the constitution? It's words on a piece of paper that doesn't stop the government from doing whatever it wants to do (a government given to us BY the constitution, for that matter).
    People should pull their heads out of their butts and realize that all the constitution gave us is government. How ya been likin' that government lately?

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous, Aug 9th, 2013 @ 3:03pm

    On this board people have dissed the Bible...but oh my gawwwsh, the constitution is sacrosanct!

    reply to this | link to this | view in thread ]

  12. icon
    John Fenderson (profile), Aug 9th, 2013 @ 3:25pm


    So? The bible only really matters to people who have certain religious beliefs. The Constitution matters to everybody. We have to treat the Constitution as sacrosanct because otherwise we have no legitimate government at all.

    reply to this | link to this | view in thread ]

  13. identicon
    Anonymous, Aug 9th, 2013 @ 3:58pm

    Re: Re:

    "...otherwise we have no legitimate government at all". You do realize that I'm an anarchist, right?

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, Aug 9th, 2013 @ 4:01pm

    Re: Re: Re:

    stir it with a stick there sport

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, Aug 10th, 2013 @ 4:09am

    Re: Re: Re:

    It is the Sworn Duty of the People to Overthrow the Chains of Tyranny when Government Fails.
    Declaration of Independence.

    reply to this | link to this | view in thread ]

  16. identicon
    Jose_X, Aug 19th, 2013 @ 5:07pm

    Impossible to follow the Constitution?

    We don't know the rule or do we?

    If you honestly are trying to go after foreign threats without violating the US Constitution, might it be possible to do a query for Americans under narrow cases and yet not be violating the 4th amendment?

    Or is the claim here that such is impossible or that no court is likely to agree on such constitutionality?

    reply to this | link to this | view in thread ]

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