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United States Government Privacy Security The Courts

When FISA Court Rejects a Surveillance Request, the FBI Issues a NSL Instead 119

An anonymous reader writes We've talked quite a bit about National Security Letters (NSLs) and how the FBI/DOJ regularly abused them to get just about any information the government wanted with no oversight. As a form of an administrative subpoena -- with a built in gag-order -- NSLs are a great tool for the government to abuse the 4th Amendment. Recipients can't talk about them, and no court has to review/approve them. Yet they certainly look scary to most recipients who don't dare fight an NSL. That's part of the reason why at least one court found them unconstitutional. At the same time, we've also been talking plenty about Section 215 of the PATRIOT Act, which allows the DOJ/FBI (often working for the NSA) to go to the FISA Court and get rubberstamped court orders demanding certain 'business records.' As Ed Snowden revealed, these records requests can be as broad as basically 'all details on all calls.' But, since the FISA Court reviewed it, people insist it's legal. And, of course, the FISA Court has the reputation as a rubberstamp for a reason — it almost never turns down a request. However, in the rare instances where it does, apparently, the DOJ doesn't really care, knowing that it can just issue an NSL instead and get the same information. At least that appears to be what the DOJ quietly admitted to doing in a now declassified Inspector General's report from 2008."
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When FISA Court Rejects a Surveillance Request, the FBI Issues a NSL Instead

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  • LOL (Score:5, Insightful)

    by Anonymous Coward on Wednesday December 31, 2014 @08:18PM (#48708717)

    It's good we elected Obama who has made sure to bring us "Hope and Change". It's good to know we elected someone who has limited and stopped all the abuses from the Bush era. Just imagine if he had just lied to us and instead simple extended and expanded these abuses of his predecessors. Hopefully we will get a constitutional amendment passed so we can vote our Glorious Leader in for a third term.

    • by Taco Cowboy ( 5327 ) on Wednesday December 31, 2014 @08:23PM (#48708737) Journal

      Obama alone can't turn the entire government of the United States of America rogue

      He has a lot of help from the inside --- people whose sole aim is to turn America into a police state

      The bad news is, the government of the United States of America is out of control

      The worse news is, we have NO ONE to reign in the government of the United States of America

      And that is not enough, the ABSOLUTELY WORST NEWS is, too many of the American citizens have turned into sheeples, and never care how their government functions nor how bad it has turned into

      • by wxxy___ ( 3646463 ) on Thursday January 01, 2015 @12:54AM (#48709853)
        I think that the problem is far worse then people not knowing or caring. It seems like the overwhelming majority are strict authoritarians who almost demand that the government is involved in everyone else's life every waking second.

        The 'I have nothing to hide' crowd are the most unamerican, morally bankrupt, cowardly scumbags on earth, and they vastly outnumber the rest.
      • Obama alone can't turn the entire government of the United States of America rogue

        Maybe he can't, but we'll never know, because surveillance is one thing he's supported since before he was elected. He is on the side of the NSA, and has been, publicly, for a long time.

      • And that is not enough, the ABSOLUTELY WORST NEWS is, too many of the American citizens have turned into sheeples, and never care how their government functions nor how bad it has turned into

        The absolutely worst news is that many of the American citizens not just don't care, but enthusiastically support the abuses of the government. Just look at the public opinion polls regarding the CIA torture report.

    • by fnj ( 64210 )

      It's good we elected Obama who has made sure to bring us "Hope and Change". It's good to know we elected someone who has limited and stopped all the abuses from the Bush era. Just imagine if he had just lied to us and instead simple extended and expanded these abuses of his predecessors. Hopefully we will get a constitutional amendment passed so we can vote our Glorious Leader in for a third term.

      Yes, and before that, good thing we had GW Bush, true to his "conservative principles" - NOT. And before that, C

      • Re:LOL (Score:5, Insightful)

        by Todd Palin ( 1402501 ) on Wednesday December 31, 2014 @10:10PM (#48709273)

        FYI: Senator Obama voted for the FISA act before he became president. So, really, he was on record opposing citizens rights to due process way early on. It should not be a surprise to anyone that his administration has continued to work to bypass the constitution wherever it seemed necessary (to them, for whatever reasons).

        • So did most of the other politicians, or did people forget that it was passed.
          • Re:LOL (Score:4, Informative)

            by liquid_schwartz ( 530085 ) on Thursday January 01, 2015 @04:46AM (#48710403)
            Two wrongs don't make a right. The goal is not to argue that Democrat is worse than Republican (or vise versa). If you're still arguing who is the lesser of two evils you have fallen for the ruse. Be smarter than that. Both parties are bad, neither party will help / improve things / save us. The only options are 3rd party or, more likely over time, some flavor of revolution. Citizens United all but guaranteed that simple voting won't be the answer.
        • And his opponent, John McCain, failed to vote either way [govtrack.us]. It's worth noting that not a single Republican senator voted against the act, so we can guess what McCain would have voted.

          To re-iterate a sentiment uttered elsewhere in the comments: no matter whether you vote D or R, you are voting against your own interests. We need new parties to replace the current ones.

          • The parties hold each other together. If a new liberal-leaning party did emerge it would steal votes from the democrats, handing the country on a plate to the republicans. If a new conservative-leaning party emerged the same would happen, with roles reversed. Both sides know this, and voters are smart enough to realise it is better to vote for the party you disagree with least than to let the real enemy take power. It's a very stable political system, allowing the balence of power to shift around a little b

        • FYI: Senator Obama voted for the FISA act before he became president. So, really, he was on record opposing citizens rights to due process way early on. It should not be a surprise to anyone that his administration has continued to work to bypass the constitution wherever it seemed necessary (to them, for whatever reasons).

          Could you expand upon that nonsense? Obtaining surveillance warrants isn't generally an adversarial process. How does FISA harm due process rights?

      • Re:LOL (Score:5, Insightful)

        by PopeRatzo ( 965947 ) on Thursday January 01, 2015 @12:41AM (#48709797) Journal

        And Carter. And Ford

        Probably the only two since Kennedy who were NOT sociopaths. Whatever you think of their politics, they seem to have been decent human beings. You can't say that about anyone who came after.

      • The tearing up of the Constitution actually got well and truly under way by the tyrant Lincoln

        You could go back to John J Marshall.

        In fact, if you really want to look at the history, you could say the Constitution was "torn up" before it was even ratified. It was never anything but a counter-revolutionary document intended to create rule by the elite.

        You read the ratification debates, you'll see what I mean. It's ugly the way the impulse for liberty and democracy was thwarted by a bunch of wine snobs who

        • by Anonymous Coward

          In fact, if you really want to look at the history, you could say the Constitution was "torn up" before it was even ratified. It was never anything but a counter-revolutionary document intended to create rule by the elite.

          Incorrect. There were plenty of US Founding Fathers that opposed slavery. Even a number of those who grew up with it (Jefferson, Madison, Washington) eventually were convinced that slavery was wrong and actively opposed it's continuance. At one point, Jefferson tried to free all his slaves, but the lawyers wouldn't let him (he was in debt, and they asserted he couldn't give away his "property"). Ben Franklin was the president of the Pennsylvania Anti-Slavery League, and at one point argued the Revolutio

          • There were plenty of US Founding Fathers that opposed slavery.

            You wanna look closer at the historical record. Yes, there were several founding fathers who decried slavery as a "monstrous institution". One who called it that was also the largest slaveowner in Virginia. During the ratification debates, they talked about how awful slavery was and then said, "But we can't make slaves free because it might cost us money". Even Sam Adams talked about how certainly slavery would end within 20 years of the rat

      • Carter actually was quite good about the Constitution, especially compared to his colleagues of the later 20th century.

  • by Todd Palin ( 1402501 ) on Wednesday December 31, 2014 @08:24PM (#48708747)

    I can't believe any FISA request was ever turned down. Basically, I thought the purpose of the FISA act was to suspend the constitution. What went wrong?

    • by Anonymous Coward on Wednesday December 31, 2014 @08:36PM (#48708811)

      I can't believe any FISA request was ever turned down. Basically, I thought the purpose of the FISA act was to suspend the constitution. What went wrong?

      We did. We voted for politicians - R and D alike - who promised to keep us safe, rather than those who would keep us free. Everyone who ever said "if it saves one child..." or "but what about the terrorists trying to kill us..." gave the politicians the power to restructure the laws, and gave the bureaucracy the excuse it was looking for to institutionalize the process.

      Happy New Year, America. You voted for this. You re-elected the people who brought you this. Every year for fourteen years after 9/11 scared you into cowardice. And you'll keep on re-electing them, because from this point forward, a generation has come of age that thinks of pre-9/11 America as ancient history.

      • by sconeu ( 64226 )

        You missed the non-existent /sarcasm tag. OP was asking "What went wrong that a FISA request was turned down?"

    • >. What went wrong

      When the judicial branch ruled it unconstitutional, the executive branch ignored the Constitution and do it anyway.

      When the Congress choose not to change the law and make illegal immigrants legal, the executive branch chose to ignore the Constitution and write their own law.

      The head of the executive, President Obama, has clearly announced that he considers "the failure of Congress" to do exactly what he wants somehow authorizes him to override Congress. In other words, according to hi

      • It happens all the time, at all levels. Another common example is carefully crafting laws to work around judicial decisions.

        Say, the supreme court rules that women have a right to first-trimester abortion as an extension of the right to privacy in medical and personal matters. There's not enough political agreement throughout the country to get a constitutional amendment passed changing this, which would be the appropriate solution for those who disagree with the ruling. So what's the solution? Keep abortio

        • You mention some reasonably good examples, though clearly from a very one-sided viewpoint.

          Obama has chosen not to "work around" decisions of the courts and the Congress, but rather to simply declare new law. He then declared that he MUST write new law because the Congress "failed to" (chose not to) pass the law he wanted. I think that might be a completely new precedent, for a president to say "Congress decided not to approve my proposal to chanhe the law, so I must therefore proceed as if they did" (rath

      • You do understand that Obama did not make illegal immigrants legal, right? He does not have the power to do so. What power he has - the power that executive branch has always had, since the founding of the republic - is to only partially enforce some law. That is itself a check on the power of the legislature, and why legislative and executive are two separate and distinct branches. Legislature, in turn, has a check on that power of the executive - they can impeach the president.

        • The federal court has already ruled against that argument. The executive, sworn to faithfully execute the law, properly has the power to implement the legislative intent, "the spirit of the law", to a PARTICULAR case, a specific individual. One example would be that I have about dozen permits from the ATF to possess professional fireworks. The reason there are a dozen of them is that the company I work with operates in several states and therefore has a subsidiary incorporated in each state, modeled on t

    • by cold fjord ( 826450 ) on Wednesday December 31, 2014 @10:43PM (#48709405)

      I can't believe any FISA request was ever turned down. Basically, I thought the purpose of the FISA act was to suspend the constitution. What went wrong?

      What went wrong? Apart from the too obvious naure of your karma whoring? (I guess I'll take that over lying.)

      Secret court says it is no rubber stamp; led to changes in U.S. spying requests [washingtonpost.com]

      The chief judge of the Foreign Intelligence Surveillance Court, Reggie Walton, told members of Congress in a letter that the court’s internal records show that more than 24 percent of government requests for recent warrants had “substantive” modifications in the wake of court review.

      The FISA Court Is Tougher Than the Media Says [newrepublic.com] - October 18, 2013

      You’ve probably read 20 or more times that the FISA Court approves more than 99 percent of the government’s applications for foreign surveillance orders. What few media have mentioned—and none has emphasized—is that the court often bounces applications and demands modifications before approval. It does so precisely because the application process is not adversarial and secret. As Judge Walton noted, the 99 percent figure does “not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.” Those of us with inside knowledge have long known, and publicly said, that the FISA court scrutinizes the government’s applications with special care, but the data to prove it have been missing. Now we have them.

      But the media have not reported an obvious comparison. How many federal and state applications for search-and-seizure warrants are modified before being granted? How many are denied? Knowing that would tell us a lot about how tough the FISA court is on the government.

      In fact, the FISA Court looks tough when compared to the way federal district courts handle wiretap applications under Title III, as the federal law is known. Even if you stick with the misleading 99 percent figure, the approval rate for Title III wiretaps is higher. From 2008 to 2012, courts refused to grant only five wiretap applications among 13,593 applied for. That’s an approval rate of 99.96 percent. You can find that comparison in Judge Walton’s letter—it’s in footnote 6—and the information has always been available through the Administrative Office of the United States Courts for any journalist who isn’t afraid of numbers. But you won’t find it in the New York Times, the Wall Street Journal, the Washington Post, or any other news outlet. Bashing the FISA court is too much fun to let numbers get in the way.

      • by AHuxley ( 892839 )
        The good news is people globally can avoid all that by just not using standard US communications networks anymore.
        With the new VPN news more people are starting to understand that their telco, VPN, provider is not really secure.
        "NSA has VPNs in Vulcan death grip—no, really, that’s what they call it" (Dec 31 2014)
        http://arstechnica.com/tech-po... [arstechnica.com]
        The world is now more aware of the internal working of networks after the news about BLEAKINQUIRY, TOYGRIPPE and XKEYSCORE.
        What is a telco or pr
  • I am not surprised in the least. The National Security Letters are really nothing more than an end-run around the courts. I'm actually surprised that the FBI even bothers with the FISA court to obtain warrants to go on its fishing expeditions.

    • I'm actually surprised that the FBI even bothers with the FISA court to obtain warrants to go on its fishing expeditions.

      Maybe for about 5 or 10 percent of them, for public relation purposes, to justify their bloated budget

    • If you flash mob Washington D.C. tomorrow, and bring the right intent,
      you can have all this nonsense nixed withing a month.
  • Citizens would never let an NSL stand in their way of their Constitutional Rights.

    Not privileges, Rights.

    • Citizens would never let an NSL stand in their way of their Constitutional Rights.

      Instead, citizens would ________________.

      Please elaborate and stuff.

      • Please elaborate and stuff.

        Serf says what?

      • by fnj ( 64210 )

        They sure as HELL would never vote for the vermin selected by the elite and presented to them as approved puppet candidates in the primaries and general elections. They would make GODDAM sure that none of the states tried to deny them their right to write in their choice on the ballot, and then they would BLOODY WELL USE that right.

        As it is, the voters - as a body, not as individuals - get the regime they so richly deserve. Time after time.

        • So your understanding is that an NSL is a voter-mandated process?

          • by fnj ( 64210 )

            Jesus captain, elections have consequences. The NSL process was only created in 1978 by an act of Congress. I.e., this kind of shit is promulgated by the scum bastards that "we" elect.

      • Most of them would do nothing. People care about their rights, but few care enough to go to jail for them. There are a lot of blowhards who talk big about standing up to the government, but for most that's as far as it goes.

        Every now and then though, you do get a Manning or a Snowden who is willing to sacrifice themselves and risk spending the rest of their life in jail in order to take a stand and expose the abuses. It's very rare, which it why it's such news when that does happen.

        • I agree with you and, following that thought to its logical conclusion, I offer this: The people will rise up in packet protest.

          I had the TRS-80 computer from Radio Shack back in 1978. Nerds like me were extremely rare and hardly anyone understood anything I had to say relating to the hobby.

          In 1982, I got my first professional gig and my technical advantage over the general population was enormous.

          That lead started eroding in the 1990s when people embraced home computers to the point where they had to learn

    • Big words to write from an Internet Tough guy who hasn't received an NSL.

      • Big words to write from an Internet Tough guy who hasn't received an NSL.

        If he had, how would you know? Can't tell anybody you got one.

  • by burni2 ( 1643061 ) on Wednesday December 31, 2014 @08:43PM (#48708843)

    Basically, Law and a Programming Language should basically be the same, from the basic definition they are, but sometimes law is interpreted (this is good and bad both at the same time)

    a.) in human interaction law specifies rules & processes for man
    b.) in machine operation a programming language specifies rules & processes for machines

    And in both domains people try to (ab)use the specified rules to behave in a way, which was not forseen/intended by the rule maker.

    I judge this as an exploit of type priviledge escalation.

    But we should start hacking law, FBI has a head start!

    • by AHuxley ( 892839 )
      If you become a telco expect to have to set up a Room 641A https://en.wikipedia.org/wiki/... [wikipedia.org]
      Expect to have different NSL to cover all users or entire sections of hardware and software to track one user for many years.
      Think of it as a Communications Assistance for Law Enforcement Act https://en.wikipedia.org/wiki/... [wikipedia.org] that covers every aspect of internal networking and all emerging systems :)
      In the past people liked to think collection was only in place after been activated when needed with court supervi
    • Is it a Denial of Service or an exploit !?

      Bug closed: Works as intended.

    • The strict interpretation approach has the same problem as programming language: Exploitable bugs. It becomes very easy for someone to subvert the intent of the law by finding some little technicality that the writers didn't think of.

  • by hEpen ( 96597 ) on Wednesday December 31, 2014 @08:46PM (#48708859)

    If I received a NSL and I were in the mind to ignore it to whom should that hypothetical me send that NSL to in order to get maximum press coverage before being shuffled off to prison?

    Would a NBC or a CNN publish it?

    • by rmdingler ( 1955220 ) on Wednesday December 31, 2014 @09:16PM (#48709007) Journal

      If I received a NSL and I were in the mind to ignore it to whom should that hypothetical me send that NSL to in order to get maximum press coverage before being shuffled off to prison?

      Would a NBC or a CNN publish it?

      Apathy is really just conceding the other side has already won.

      Courts have ruled against them, admittedly in smallish numbers, but it has happened. In 2004, the US District Court for Southern NY ruled the Patriot Act's requirement that a respondent file a secret lawsuit in 10 days was ruled unconstitutional. This required Congress to redo the Act to allow 10 days response time to appeal by fax.

      In 2008, the 2nd Circuit Court of Appeals in NY ruled that a provision absolving the FBI from having to justify a gag order in court was also, you guessed it, unconstitutional. Google has many more examples, if you're of a mind.

      An NSL comes with all the implied intimidation and dread of a certified letter from the IRS. Follow either blindly at your own behest, or fight if you want to... it's not merely rumor that you still have options.

      • An NSL comes with all the implied intimidation and dread of a certified letter from the IRS. Follow either blindly at your own behest, or fight if you want to...

        Why do either?

        It is a letter, on paper, written by some flunky at some three letter agency.

        People make the mistake of thinking they need to take action, sometimes doing nothing at all is the most powerful response.

        Simply don't respond and behave as if it didn't exist. If they want information, they can file a lawsuit in a court of law.

    • by fnj ( 64210 )

      No, not the lame stream media. Use your bean. Distribute it to the embassies of every country on earth, and every server in the world that you can find. Find out where Snowden sent his leaks. And just do a google search for "leak" - it reveals some "interesting" sites.

    • Would a NBC or a CNN publish it?

      Pffft, hahahaha. You're better off with The Enquirer than those two. They're more likely to report you to the FBI than report on the NSL.

      If you actually want to get coverage, try the likes of The Guardian. I recommend a massive shotgun approach instead if you want more protection; scan the letter, send a copy to as many "news" organizations as possible, and post it everywhere you can on the internet. WikiLeaks, 4chan, reddit, Fark, FurAffinity, Youtube, Redtube, Daily Kos, HuffPo, make your own website, create an entry on Wikipedia, put a torrent/magnet on as many of those sites as possible, etc. Make it so easy to get that no amount of takedown orders can scrub it from the internet. Put copies in every mailbox in the neighborhood, collect those return envelopes from credit card offers and send them copies, leave copies on the seats of buses, movie theaters, libraries, hand copies to the FBI agents/police who show up to arrest you. Encourage others on the internet to do the same. Attach as much information about yourself and the event surrounding the NSL as possible. If the NSL doesn't include your physical address, put that up there as well; the FBI will be more hesitant to act if they think a bunch of local dissatisfied citizens might be hanging around your place with cell cams.

      Before you pull the trigger give the original NSL to someone you trust and have them keep it somewhere safe, to be offered up if any of those news places actually want to verify it.

      This won't keep you from getting arrested, but it will make a lot of people inquire as to your well-being and where you are in the justice system; depending on the reasons for the NSL, various groups might take up the cause to get you your freedom.

    • by jaa101 ( 627731 )

      Isn't this what Wikileaks is for? Send it there first and then tip off media outlets. Of course the anonymity feature of Wikileaks is not so important in this case since they can probably guess who leaked it but it's still going to be hard to take down.

    • NBC and CNN are far more likely to cave, foreign outfit much less. Now the problem would be for you to interrest them into your story. An alternatrive would be to publish it on ACLU or EFF forums or similars.
    • by yarbo ( 626329 )
      Send it to many outlets like others have mentioned. Make sure to send it to Cryptome in addition to others mentioned.
  • All of them (Score:5, Insightful)

    by rickb928 ( 945187 ) on Wednesday December 31, 2014 @09:01PM (#48708923) Homepage Journal

    We have to throw all of them out. All of them. And repeat until they do what they should.

    • by Anonymous Coward

      The vast majority of people in government are not elected. The bureaucracy is self-maintaining.

    • My thought, exactly. However, it will be difficult to do when we have a voter turnout of 36.3% [nytimes.com].

      When the polling places are empty, and the line is several blocks long at the 'Pawn Stars' store [instagram.com], we are seriously fucked. This picture was taken on election day, 2012, a presidential election. It was posted by Ross Miller, the Nevada candidate for attorney general.
      • This might be the first time I've ever heard anyone suggest that no lines at a government facility are a bad thing.

      • Perhaps even worse than only 36% voting, the majority of voters couldn't name the incumbent VP. This indicates that they are not nearly informed enough to cast an informed, meaningful vote. They vote based on physical appearance, headlines, and Comedy Central.

      • Actually, shouldn't that make it easier? if 100% of people were already active voters, you not onyl would have a much much smaller pool to draw fresh votes form, but you would be up against a bigger opponent.
    • by caseih ( 160668 )

      It's not just the elected politicians, though. There's an entire bureaucratic machine that is completely unelected and barely accountable that also is contributing to this mess. Heads of departments can influence the direction a department takes but often departments pull the newly appointed head in certain directions, often backed up with top-secret evidence to sway them. With no outside checks and balances, things get out of order very quickly. Also there also are attitudes in the civil service that m

    • We have to throw all of them out. All of them. And repeat until they do what they should.

      Too many people in the population agree with surveillance for that to work. That's the problem with democracy: you have to live with other people, and a lot of them don't agree with you.

    • If you look at elected positions and toss all of them out you will not begin to cure the problem. Salaried civil service types of positions hold far too much power and their actions can be covert and undetected by the elected folks. For example a US senator may vote and act according to reports from workers downstream of his position. The report that the senator works from can be controlled by lower level employees who slant or even invent out of whole cloth the entire report. Organized crime has
    • We have to throw all of them out. All of them. And repeat until they do what they should.

      And what good will that do when it is the non-elected bureaucracy that has their hands directly on the levers?

      Sure, you can elect a brand new group of senators, representatives, governors, etc. There is even a slight chance that could all be lily-white innocent. Let's hope for the best and assume they are.

      Then what?

      The non-elected bureaucrats already have all of the data they need to put pressure on all of these purely innocent brand new elected officials. What do you think is going to happen now?

      The polit

  • Unfortunately, any law can be abused. Just look at the drug laws. Even though minorities use illegal drugs less, they make up a majority of the arrests. I agree there are serious problems with these laws and they need to be modified or eliminated. However, we also have laws that allow confiscation of property if there is suspicion of that the property was or will be used to commit a crime. Even if no charges are filed, people are forced to sue to get their property back. Enforcement of laws can be and often

  • Once a year—like today perhaps—everyone and their dogs needs to Tweet out "As of $PRESENT_YEAR I have never received an NSL letter".

    Unless, of course, a year comes and goes and one suddenly and forever forgets to participate in this strange custom.

  • How long will it take until Congress fixes this? This search and seizure without any publicly elected court weighing in needs to stop. Is there really nobody in the House or Senate who thinks this is wrong? Apparently not and with the right-wingers running the country now I expect no change, more likely that bills will be passed that require the three letter agencies to not even send a letter. They can just barge in and take your stuff. Shame on everyone who still calls this a democracy and freedom!

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