Senate Talking Points Say Warrantless Collection Of Internet Use Data Keeps Terrorists From Killing Us

from the it-doesn't-say-HOW-it-does-this dept

The Senate tried and failed to erect a warrant requirement for the FBI's collection of US citizens' internet browsing data. The amendment to the FISA reauthorization fell one vote short -- something that could have been avoided by having any of the four missing Senate supporters show up and actually support the thing. The House has a chance to pass this amendment before sending the bill to the president, but they've decided to engage in some unproductive infighting instead.

As it stands now, it still stands the way it has always stood: the FBI can get this information without a warrant. If we can't have this amendment, maybe we can have some answers about the FBI's use of this power. Senator Ron Wyden has sent a letter to the Director of National Intelligence asking how often government agencies have spied on Americans' internet usage. The answer will probably arrive sometime between "years from now" and "never," given how enthused the DNI usually is about discussing domestic surveillance originating from the Foreign Intelligence Surveillance Act.

Since there doesn't seem to be any good reason to allow the FBI to continue this warrantless collection, surveillance supporters in Washington have decided to craft some bad ones. Dell Cameron reports for Gizmodo that certain Senators think a warrant requirement allows the terrorists to win.

Requiring federal agents to have “probable cause” to eavesdrop on the internet activities of American citizens poses a direct threat to national security and would force the FBI to stand by while terrorist plots unfold on U.S. soil, according to a leaked copy of talking points distributed to Senate lawmakers this month.

Those talking points appear to have originated in Sen. Mitch McConnell's office and began circulating prior to the Senate vote on the FISA reauthorization. The talking points aren't very convincing, though. As Cameron points out, they're riddled with legal errors and give the appearance that the author(s) believes ginning up a little fear should be all that's needed to sway legislators who still think the Fourth Amendment should mean something.

At one point, the document erroneously claims that legally requiring the FBI to get a warrant to view U.S. citizens’ web browser data would hinder federal agents from investigating a “known foreign” spy caught photographing a power plant on U.S. soil “over the course of several days.” In this hypothetical, the spy goes on to blow up the Hoover Dam as helpless FBI agents presumably observe from a distance.

Whoa if true. One wonders how the FBI ever manages to investigate anyone. Of course, at some point in the several days between the detainment and the eventual blowing up of stuff the FBI could probably have obtained a search warrant to collect this information. Not that it would necessarily need to since this hypothetical involves a "known foreign spy" the FBI already has under surveillance and whose internet data could be legally obtained from NSA collections without doing anything at all to the Fourth Amendment.

Somehow, the talking points manage to get even dumber than this.

Unbelievably, the leaked documents go on to claim that search warrants for browser data would effectively mean the end of all domestic internet surveillance by the U.S. government: “Internet web browsing and search history information comprise data that forms the building blocks for national security investigations,” it says. “To require probable cause for the Government to obtain the Internet data effectively prohibits any Internet data collection.”

Let's see if we have this straight: seeking a warrant will irrevocably terminate an investigation. Limiting the government to things it has probable cause to basically sets fire to the national security fabric, leaving us completely at the mercy of terrorists, domestic and otherwise. It's as if the person writing this believes Constitutional rights and protections are something the government only extends to violent criminals and if they're respected, the end result is dead Americans.

I guess we should be grateful for these Senators and their efforts. After all, if we, the general public, hadn't allowed terrorists to attack the US back in 2001, we wouldn't be in the position we are now: being warrantlessly surveilled by our own government for our own good.

Filed Under: 4th amendment, doj, fbi, fisa, mitch mcconnell, nsa, patriot act, probable cause, ron wyden, surveillance, terrorism, warrants


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  • icon
    That One Guy (profile), 26 May 2020 @ 1:39pm

    Just a reminder:

    The warrant requirement for a search comes from the constitution, specifically the fourth amendment which is as follows:

    'The right of the people to be secure in their persons, houses, papers, and effects,[a] 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.

    Anyone arguing that government agencies can't do their jobs if they have to get warrants is arguing that violating the constitution is required to do the job.

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

    • icon
      radix (profile), 26 May 2020 @ 2:01pm

      Re: Just a reminder:

      I'm no expert, but this gets me every time. "Probable cause" doesn't appear to mean that a search can be performed on the spot, it's a prerequisite to get a warrant, not a replacement for a warrant. Now the law says that probable cause isn't even needed?

      We've gone from: Have a reason to search -> get a warrant -> search

      to: Have a reason to search -> search -> if you find something, get a warrant after the fact and perform parallel construction

      to now: Fuck y'all -> search everything

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

  • icon
    That Anonymous Coward (profile), 26 May 2020 @ 1:42pm

    I think the shine is starting to come off of "BUT TERRORISTS WILL WIN!" as a battle cry if they are this desperate.

    If having to do their job is to hard for them, don't remove the laws remove the lazy assholes who think rights are only for senators who do the insider trading that they stop investigating pretending nothing happened.

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

  • icon
    Norahc (profile), 26 May 2020 @ 1:54pm

    Seems like the only terrorist attacks the FBI prevents are the ones where it spoon feeds some schmuck everything they need.

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

    • identicon
      Anonymous Coward, 26 May 2020 @ 2:49pm

      Re:

      due to budget cutbacks, the FBI budget only includes funding for four staged terrorist attacks a year. And they have to flub at least one of them to be able to claim that they need MORE funding for next year, due to the increased success of staged terrorist attacks.

      Makes perfect sense, amirite?

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

  • identicon
    Anonymous Coward, 26 May 2020 @ 3:09pm

    Requiring federal agents to have “probable cause” to eavesdrop on the internet activities of American citizens poses a direct threat to national security and would force the FBI to stand by while terrorist plots unfold on U.S. soil, according to a leaked copy of talking points distributed to Senate lawmakers this month.

    1. This has pretty much never even stopped some minor terrorist-related anything, never mind any kind of "plot".

    2. Godwin. Sorry, but totally, entirely, exactly, [insert statement subject to Godwin's Law here].

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

  • identicon
    Anonymous Coward, 26 May 2020 @ 3:15pm

    Oh, boy.

    a “known foreign” spy caught photographing a power plant on U.S. soil “over the course of several days.” In this hypothetical, the spy goes on to blow up the Hoover Dam as helpless FBI agents presumably observe from a distance.

    Is the spy photographing from a public location? First Amendment, dorks. Hide the damn dam if you are so a-scaret, or, you know, if you count on things that anyone can see to both be secret and part of your security, you have and have always had bigger problems. Grow the hell up.

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

    • identicon
      Anonymous Coward, 26 May 2020 @ 3:18pm

      Re:

      Oh, right. P.S. Known foreign spy? You can arrest them right now. Like, at any time. They don't even need to be "suspicious", the favorite but always unarticulable excuse for everything. The bar is so low! And you want to waste time on their... web browser history? W.T.A.F.

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

  • identicon
    Anonymous Coward, 26 May 2020 @ 3:18pm

    "Requiring federal agents to have “probable cause” to eavesdrop on the internet activities of American citizens poses a direct threat to .... "

    Do Moscow Mitch and his comrades consider themselves to be American citizens? Because I remember some of them bitchin up a storm about the FBI spying on them - even though it was their job to monitor outbound communications.

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

  • icon
    Anonymous Anonymous Coward (profile), 26 May 2020 @ 4:18pm

    Judge Dredd cometh

    When the government abolishes the need for warrants, without amending the Constitutions 4th Amendment, the next wrung on the ladder will be the courts. Don't need warrants, don't need courts. Every LEO will then be given execution powers.

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

  • icon
    Toom1275 (profile), 26 May 2020 @ 8:54pm

    Senate Talking Points Say Warrantless Collection Of Internet Use Data Keeps Terrorists From Killing Us

    Because nothing helps you find needles by forking on more hay.

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

  • icon
    Toom1275 (profile), 26 May 2020 @ 8:55pm

    by -> like

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

  • icon
    Seattle Rex (profile), 26 May 2020 @ 10:43pm

    Warrants Are Useless

    I would argue that a warrant, as it stands in 2020, does not meet the definition of a warrant in the 1700s.

    Judges never receive criticism when a warrant turns up nothing, but if they fail to issue a warrant, and something happens, they receive unlimited criticism.

    This being the case, how likely are they to protect your constitutional rights?

    Answer: not very

    Some judges have approval rates exceeding 98%, and those that aren't approved are usually re-submitted once the minor procedural errors are fixed (wrong name, date, etc) and then approved.

    Warrants are. for all intents and purposes, rubber stamps, and don't protect anyone from anything.

    Unfortunately.

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

    • identicon
      Anonymous Coward, 27 May 2020 @ 6:35am

      Re: Warrants Are Useless

      " they receive unlimited criticism"

      I have not seen this criticism, what form does it take ... nasty editorials, snide remarks? The horror!

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

    • icon
      That One Guy (profile), 27 May 2020 @ 11:31am

      Re: Warrants Are Useless

      In which case the point to fix is judges handing out warrants too easily, or overly broad warrants, not the idea of warrants themselves.

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

  • icon
    Scary Devil Monastery (profile), 27 May 2020 @ 1:45am

    This sounds familiar...

    "Senate Talking Points Say Warrantless Collection Of Internet Use Data Keeps Terrorists From Killing Us"

    In other breaking news scientists finally confirm that hanging garlic wreaths from the rafters keeps vampires away based on a five year study where the amount of vampire attacks proved to be zero in any households so protected. "This is incredibly exciting" says Dr. Barnum, team lead at Quack University, Podunk.

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

  • identicon
    Anonymous Coward, 27 May 2020 @ 5:26am

    there's a warrant for it and they aren't good enough at law enforcement for it to mean anything

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

  • identicon
    Anonymous Coward, 27 May 2020 @ 5:42am

    that's all it took

    Terrorist don't have to kill us. Just 1 attack and we'll blame and kill each other.
    We Got This, America!

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

  • identicon
    Anonymous Coward, 27 May 2020 @ 10:39am

    The FBI lacks capacity to do much about it in my experience.

    Also, the warrants have been valid for decades and they all go back to the same place with the same technology doing the same thing.

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


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