Privacy

Surveillance Fourth Amendment Violations Admitted by Feds

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Sen. Ron Wyden

This won't come as much of a shocker, but the federal government has, in a sideways fashion, admitted that electronic snooping conducted under the controversial Foreign Intelligence Surveillance Act Amendments Act of 2008 (federal motto: roll-off-the-tongue is not our style) has sometimes violated the Fourth Amendment. I say sideways, because the news comes courtesy of a leaked letter to Senator Ron Wyden, from the Office of the Director of National Intelligence, authorizing the privacy-championing legislator to make statements to that effect. And yes, you should find it creepy that an elected lawmaker needs a professional spook's permission to tell us that the government has screwed us over.

In the letter (PDF) dated July 20, 2012, Sen. Wyden is authorized to make the following statements:

  • A recently unclassified report noted that the Foreign Intelligence Surveillance Court has repeatedly held that collection carried out pursuant to the FISA Section 702 minimization procedures used by the government is reasonable under the Fourth Amendment.
  • It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
  • I believe that the government's implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

"Minimization procedures" refer to efforts made to keep the intrusiveness of a wiretap to a minimum, so that only relevant information is gathered. But the FISC has admitted that "large amounts of information are collected by automatic recording to be minimized after the fact."

Note that, while the law in question refers to "foreign intelligence," it explicitly applies to communications where at least one party to the call is "reasonably believed" to be outside the United States. The other can be within the U.S. Senators Ron Wyden and Mark Udall noted some concerns in a minority view attached to the Senate Committee on Intelligence report regarding extending the government's surveillance power, which is due to sunset:

[S]ection 702 currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens. We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number.

So, when the intelligence establishment admits that the Fourth Amendment was violated on "on at least one occasion," that doesn't mean one person — it could be a large number of Americans scooped up all at once in a wide-ranging operation.

Oh, but the Office of the Director of National Intelligence also wants you to know that "The government has remedied these concerns and the FISC has continued to approve the collection as consistent with the statute and reasonable under the Fourth Amendment."

Well … That's all right then.

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  1. Sen. Wyden is authorized to make the following statements

    I would think a Senator could make any goddam statements he pleased, and wouldn’t need the authorization of some arrogant asshole buried deep in an unconstitutional bureaucracy. Especially one who is admitting that he has violated our Constitutional rights.

    1. You could think that, but you would also have to think that a member of the political class has balls.

    2. He is immune from civil or criminal liability for anything he says on the House Floor. So yeah, he can say anything he damn well pleases and there is nothing DOJ could do about it.

      1. We know you’re a mole john. We read it somewhere. And, you have fuckbuddies.

        1. What’s the credibility level of an admitted KGB agent, Tim? On a 1-10 scale.

          1. Kentucky German Band, you know, polka favorites. We play retirement homes and libertarian political rallies.

            1. Ah, ha! That code name fools no one!

        2. Someone had to take Joe from Lowell’s job.

    3. Yeah, um, I think he can say just about anything on the floor. And most anything in his official capacity.

      Mark my words, all of this improper delegation is going to bite this country in the ass when the Secretary of the Interior someday claims the crown of America. Which he’ll rename America, the Beautiful.

      1. Well, it would make a better national anthem.

      2. And make Yellowstone the Capitol.

        1. The press pool would be moved in front of Old Faithful.

          1. The press pool would be moved into front of Old Faithful.

            1. Only when they ask difficult questions, like how Interior moved ahead of the other departments in the line of succession or where the Constitution addresses lifetime, autocratic monarchs.

              1. Don’t worry. The SCOTUS will rule that it is covered under the Commerce Clause or Taxation Powers.

                Or Article 31.

                1. It’ll all be quite legal. Interior will issue a regulation that interprets the Tax and Spending Clause as more powerful than the Constitution it’s included in. Kind of a bootstrapping of government authority and legitimacy. Justice Roberts will sign off on the reg.

        2. Governing the US from the caldera of a megavolcano has a certain appeal.

          1. Apropos seems too tepid a word.

            1. Yes. Considering that the main action of a megavolcano is to cover most of the continent with a thick layer of grey stuff that makes it impossible to move or do anything,

              1. Too bad that almost any Imperial America scenario has us annexing everything in “America.” Perhaps remnants of Free Canada will remain in Nunavut.

                1. HMMM:
                  Live in a Imperium dominated by Nancy Pelosi clones or a place frozen solid six months a year and infested with quadrillions of mosquitos for the other six months.

                  I think I’d fall on my sword.

                  1. Your sacrifice will be remembered in Inuit lore.

                    1. You want to use the sword when I’m done with it?

                    2. Yeah, sure. Ship it FedEx.

          2. They need a giant glowing eye thingie too. For national security and whatnot.

      3. The first crack will be the “Temporary” suspension of the 22nd Amendment.

        Followed shortly thereafter by Both Officially Recognized Parties(TM) nominating the same person “due to the current crisis.”

  2. Oh, but the Office of the Director of National Intelligence also wants you to know that “The government has remedied these concerns and the FISC has continued to approve the collection as consistent with the statute and reasonable under the Fourth Amendment.”

    “Trust us.”

    “This time we mean it.”

    “Really mean it.”

    “Honestly, never again.”

    1. I wish they’d passive voice all the good stuff, too: “Concerns were remedied.”

      1. “Assholes were lubed.”

      2. Procedures were violated.

  3. Not only that, but federal taxpayer stipends to grad students cause mass murder.

    Ban federal student grants, for the children.

  4. Top. Men.

    1. The New Professionals!

  5. Seems troubling that the executive branch ignores requests for information from the legislative branch, than says, hey, here’s what you can say in public about the constitutionality of this stuff that we won’t tell you anything about so you can’t verify it is even remotely constitutional.

    Seems like a briskly worded letter to the president of “give us this info now or we start impeachment proceedings” would be appropriate.

    1. would be appropriate. completely ignored.

  6. Why no death penalty for constitutional violations?

    I’m also in favor of the death penalty for any current or former Congressperson who voted in favor of any legislation later found to be unconstitutional.

    I’m willing to accept a few states as the testing grounds for this. Live free or die.

    1. Only if the executions are performed in the National Mall.

      And it’s done with a guillotine.

      1. The government would want to charge. Perhaps a national lottery to determine who gets to let the blade drop.

        And it would have official sponsors. And the sponsor police would make you tape over logo contraband.

  7. And yes, you should find it creepy that an elected lawmaker needs a professional spook’s permission to tell us that the government has screwed us over broken the law.

    The government screws us over daily. Constantly. Without pause. However, much of how the government screws us is well within the law.

    “Screwing us over” is not a strong enough term which clarifies exactly what’s going on here.

  8. If they are willing to tell us this, imagine what they aren’t telling us.

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