New NSA Bill From House Intelligence Committee Aims To Head Off Future Challenges To Legality Of National Security Letters

from the assuring-no-standing-but-cutting-challenges-off-at-the-knee dept

When House Intelligence Committee ranking member Dutch Ruppersberger suggested replacing the NSA's bulk collections with something a bit more targeted, it was a little surprising. After all, this is the same man who has worked hand-in-hand with Mike Rogers to subject the NSA to as little oversight as possible over the last several years.

What he proposed sounded suspiciously like an old fashioned Pen Register, the sort of targeted call tracking that can easily be performed by any law enforcement/security agent. Julian Sanchez wondered why a new law was needed when one already on the books would suffice, provided it was scaled back from FISC judge Colleen Kollar-Kotelly's expansive interpretation.

Well, apparently the reason a new law was needed was to expand the NSA's powers, rather than contract them, contrary to the assertions of those pushing this legislation. As Mike noted on Tuesday, the bill aims to limit some aspects of the NSA's collections while simultaneously lowering the standards governing other collections. The bill dials back on "probable cause" and relies on "reasonable suspicion" only, while also eliminating the government's need to seek a warrant or court order to run a phone number for hits.

As Mike also noted, the full house bill hadn't been made public yet, so it was likely there were other tricks up the Rogers-Ruppersberger sleeve. Sure enough, Marcy Wheeler, who has done an amazing job digging up dirt in nearly every NSA-related document over the last several months, has indeed uncovered another small gift to the surveillance state in the "fake fix" bill.

Here's the wording:

If the judge determines that such petition consists of claims, defenses, or other legal contentions that are not warranted by existing law or consists of a frivolous argument for extending, modifying, or reversing existing law or for establishing new law, the judge shall immediately deny such petition and affirm the directive or any part of the directive that is the subject of the such petition and order the recipient to comply with the directive or any part of it.
And here's what that wording appears to be targeting:
I can’t help believing much of this bill was written with cases like Lavabit and the presumed Credo NSL challenges in mind, as it uses language disdainful of legal challenges.
This makes it that much more unlikely that challenging an order from the NSA will result in anything other than compliance by the entity on the receiving end. This strips away a little more of the facade the government portrays -- that those receiving national security letters and the like actually have any choice in the matter.

When the government demanded the SSL keys so it could access the data and communications of Ed Snowden's former email provider, Lavabit fought back. First, it closed down rather than be "complicit in crimes against the American people." Then the government dragged the provider to court to get the information it sought and Lavabit's lawyers fought back.

This is the way the system is supposed to work. Orders can be challenged, even if the chance of overturning them is microscopic. If this part of the bill goes through unaltered, judges will be granted the permission to simply shut down any petition they think seeks to challenge any aspect of the laws pertaining to the NSA's surveillance programs. It's the NSA's heckler's veto, granted by the House Intelligence Committee and delivered by judges who will be forbidden from respecting any challenges to the government's interpretation of these laws.


Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    That One Guy (profile), Mar 27th, 2014 @ 2:00pm

    “To learn who rules over you, simply find out who you are not allowed to criticize.”

    ― Voltaire

    When even questioning a government agency's demands is considered such a heinous crime that a law is 'needed' to immediately shut it down and order compliance... yeah, the people pushing for this stuff are enemies of everything the country used to stand for, and should be seen, and treated, as such.

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

  2. identicon
    Anonymous Coward, Mar 27th, 2014 @ 3:04pm

    Re:

    I'd rather just take the Viking road. After all that's what the US Government has been doing for decades.

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

  3. identicon
    Anonymous Anonymous Coward, Mar 27th, 2014 @ 3:19pm

    Fait Acompli

    Absolute power corrupts absolutely.

    Where is the exit to this merry-go-round?

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

  4. identicon
    Anonymous Coward, Mar 27th, 2014 @ 3:35pm

    "If the judge determines ... the judge shall *immediately deny such petition and affirm the directive or any part of the directive* that is the subject of the such petition and *order the recipient to comply with the directive or any part of it.*"

    Right of appeal?

    (I being to think I am old-fashioned, there was a golden age when we had that, wasn't there? Or am I hallucinating?)

    Does the Judge have the ability to stay part of the ruling subject to appeal or is his/her discretion removed?

    These are but trivial and meaningless questions from a poor peasant since whatever the answers we know the overlords will do as they please. Just curious though.

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

  5. identicon
    Anonymous Anonymous Coward, Mar 27th, 2014 @ 3:43pm

    Re:

    Here-in lays the reason I advocate for a 6th grade reading comprehension test for all legislation, at all levels of government. Lawyers, like accountants and others, create things in such a way that it perpetuates their profession. If laws were simple, why would we need lawyers?

    In this case, the obfuscation is for Congress, not the brightest lights out there, with the intention of getting it past them. Congress, who only read the popular press and their contributors letters will never hear about the issues.

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

  6. identicon
    Anonymous Coward, Mar 27th, 2014 @ 7:05pm

    It looks like the NSA is going all out to justify itself legally. When things like this are happening while the country itself is in an uproar over the abuses of privacy the NSA is doing, in the long run, the NSA being tone death to all this will bring it all to a head.

    Right now is the time for politicians to line up where they stand. When the populace drags out the pitchforks it will be too late to dilly dally. The fact that these politicians are ignoring the will of the people will have it's day.

    It sure isn't looking good.

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

  7. identicon
    Guardian, Mar 27th, 2014 @ 8:36pm

    BORN in the SPY...USA

    YOU WERE BRON ...IN THE SPY USA....
    everyone now...

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

  8. icon
    M. Alan Thomas II (profile), Mar 27th, 2014 @ 8:42pm

    The Federal judiciary tends to take a dim view of any legislation limiting its fundamental powers, particularly the power to hear cases and decide which laws are constitutional.

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

  9. identicon
    Anonymous Coward, Mar 27th, 2014 @ 10:09pm

    Seems like a hostile take over of the Courts will all Judges just sit back and say "hey whatever the NSA thinks is the law now bow down before your masters"

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

  10. identicon
    Anonymous Coward, Mar 28th, 2014 @ 12:23am

    Re: Fait Acompli

    You take the Aliens route - "Nuke it from orbit, it's the only way to be sure."

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

  11. identicon
    Anonymous Coward, Mar 28th, 2014 @ 12:27am

    Supreme Court?

    I doubt the Supreme Court will be amused by attempts to bypass judges. Hopefully if they try this they'll and rule the entire NSA unconstitutional or something. One can dream anyway.

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

  12. icon
    Aussie Geoff (profile), Mar 28th, 2014 @ 3:38am

    Totalitarianism is alive and well in Amerika!

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

  13. identicon
    Anonymous Coward, Mar 28th, 2014 @ 8:36am

    Seems somewhat meaningless...

    Basically if the judge determines that it is a frivolous challenge or defense or one that has no existing legal basis, wouldn't the judge naturally affirm the order? Isn't that what the judge is supposed to do? You know... make a judgement on the case? It seems to me that it would be kind of insulting to judges to try to spell out that the judges should do something that is actually part of their job and they would do naturally.

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

  14. identicon
    Kevin, Mar 28th, 2014 @ 10:31am

    Re:

    “To learn who rules over you, simply find out who you are not allowed to criticize.”

    ― Voltaire

    So that means
    - Israeli's
    - Women's rights groups
    - Native american rights groups
    - Black American Rights groups
    - Hispanic American Rigths Groups
    - Christians
    - Islamics
    - Sikhs
    - etc etc etc ...

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

  15. icon
    John Fenderson (profile), Mar 28th, 2014 @ 10:54am

    Re: Re:

    Interesting. I am allowed to criticize literally every one of those groups and more And, being highly opinionated, I have at various times.

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

  16. identicon
    Joe, Mar 31st, 2014 @ 8:57am

    Re: Re: Fait Acompli

    I suspect the Supremes my have to do just that, or it'll be Dred Scott vs. Sandford all over again, albiet for very different reasons. If people can't get a fair trial, the court loses all legitimacy. This never has a happy ending for any and all involved. That's why the law forbids telling anyone - it would shock even the most apathetic to see such outrages on such a scale. The Dreyfus affair comes to mind.

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

  17. identicon
    Joe, Mar 31st, 2014 @ 9:01am

    Re: Seems somewhat meaningless...

    We're only a few steps from the divine right of kings and absolute immunity/impudence. You couldn't sue the crown.

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


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