Re:Justice Dept. defends secret rulings in new spy court filing
by rayiner on Tuesday July 09, 2013 @09:54AM
(#6012637)
> It also allows them to provide warrants for all kinds of activities that'd be outright unconstitutional by themselves.
The FISA court grants warrants for things that would otherwise be Constitutional without a warrant. Surveillance of foreign agents does not require a warrant. Collection of meta-data does not require a warrant. Collection of records from third parties probably does not require a warrant, under existing precedent.
The Verizon call records example is a good one. See Smith v. Maryland: http://en.wikipedia.org/wiki/Smith_v._Maryland (1979). That case decided that the government did not need a warrant to find what numbers were dialed by someone. "In the Majority opinion, Justice Blackmun rejected the idea that the installation and use of a pen registry constitutes a violation of the 'legitimate expectation of privacy' since the numbers would be available to and recorded by the phone company anyway."
Verizon's call records are not only not private to you personally, since Verizon can see them, but not even your information to begin with, since they were generated by Verizon and not you. It's a totally reasonable application of the existing precedent to say that the NSA can collect Verizon's call records without a warrant.
For better or worse, we have a 4th amendment that:
1) does not apply to foreigners; and
2) does not apply to information you voluntarily expose to a third party (like bank records or phone records). This gives the government a wide latitude to collect information without running afoul of the 4th amendment. The purpose of FISA was to insert the FISC as a check on this discretion. The FISC does not seem to be a very effective check, but it's not designed to let the executive do things that it could not otherwise do.
The FISA court grants warrants for things that would otherwise be Constitutional without a warrant. Surveillance of foreign agents does not require a warrant. Collection of meta-data does not require a warrant. Collection of records from third parties probably does not require a warrant, under existing precedent.
The Verizon call records example is a good one. See Smith v. Maryland: http://en.wikipedia.org/wiki/Smith_v._Maryland (1979). That case decided that the government did not need a warrant to find what numbers were dialed by someone. "In the Majority opinion, Justice Blackmun rejected the idea that the installation and use of a pen registry constitutes a violation of the 'legitimate expectation of privacy' since the numbers would be available to and recorded by the phone company anyway."
Verizon's call records are not only not private to you personally, since Verizon can see them, but not even your information to begin with, since they were generated by Verizon and not you. It's a totally reasonable application of the existing precedent to say that the NSA can collect Verizon's call records without a warrant.
For better or worse, we have a 4th amendment that: 1) does not apply to foreigners; and 2) does not apply to information you voluntarily expose to a third party (like bank records or phone records). This gives the government a wide latitude to collect information without running afoul of the 4th amendment. The purpose of FISA was to insert the FISC as a check on this discretion. The FISC does not seem to be a very effective check, but it's not designed to let the executive do things that it could not otherwise do.