I don’t believe that is correct. I don’t see anything in FISA that establishes different procedures for different content of communications. A message is a message is a message. If the government is collecting that Brazilians’ email, and they find he sent one to you, as I understand it, that message is required to be minimized (redacted, destroyed, something) because it involves a US person.
i’ll read it again soon, I trust your judgment but that wasn’t the impression I had from a brief glance.
But let’s say we are grabbing all the communications from a certain source, let’s say an Internet cafe in Nigeria. Literally every bit that goes in or out is stored somewhere. Maybe we’re looking for an AQ terrorist passing messages - I’m sure you will agree that’s a fine use of intelligence capabilities. But in capturing every bit, there’s bound to be an email from an American which says, “Why yes, I would like to help you get $25 million from your dead uncle out of that bank and into yours!”
Has an American communication been intercepted? Yes. If it is discovered does the law require it be minimized to protect the US persons rights? As I understand it, yes. Is there some technical way to sort out the American bits for the foreign bits going in and out of the cafe before they are recorded? I don’t know, but that would seem to be a hell of a technology if it exists. If it does, obviously the NSA should use it. If it doesn’t, then that shouldn’t mean that the U.S. should be prohibited from collecting on the cafe; but any US person communications should be dealt with if discovered.
I’m not a big fan of the Nation overall ad I’m strongly opposed to some things that the ACLU does, but I’m totally with them on this one. Government collection of data has been way overboard and over the Constitutional limits for a long time. Any suit which forces them to acknowledge the existence of the Bill of Rights is a good thing in my book.
FISA makes no such distinctions, correct. That doesn’t mean FISA is constitutional as applied to all factual situations, or that the facts don’t matter to assessing the constitutionality of FISA as amended. Both Fourth Amendment reasonableness and First Amendment chilling analysis consider the content.
What the complaint describes is wholesale storage of not just one internet cafe’s communications but substantially all text-based communications that originate or terminate in the US. Such communications by definition involve American communication, and the NSA isn’t even successfully eliminating all American-to-American communication at the screening stage.
Moreover, there is no judicial review of targeting decisions, and the minimization procedures do not delete or lockdown communications involve US persons or require any protection if the communication is selected based on an identifier in the text, such as the mention of a target’s name.
So let’s imagine I’m a reporter trying to communicate with a source in Thailand who knows about a CIA secret prison there. We have an email exchange about the prison, including who might be housed there. One of us mentions a name of a FISA target, or even a term associated with a FISA target (which targets could be a whole range of people engaged in lawful activities). That lands our entire email thread in retention, to be reviewed or data-mined with almost no limits by the NSA. So an analyst could very easily dig up all communications with American reporters about the black site. That’s a clear Fourth and First Amendment problem, and the NSA’s only real defense as far as I can tell (if the allegations are true) is that the improper search was unintentional and the subsequent data-mining cannot directly use the names of U.S. persons.
I’m not persuaded that the unintentionality of obtaining and keeping any given communication makes it a reasonable search, especially if there are targeting and minimization procedures that would further protect privacy without entirely eliminating the ability to conduct modern surveillance. But I hope this case makes it to those questions. At a minimum, we should grapple with this stuff openly as a society.
Setting aside the debate for a moment, I don’t see how this case is substantively different than the one filed in 2008 which the Supreme Court dismissed for lack of standing. Any idea on why this case is different than that one?
Yeah, there have been a lot of revelations since 2008, both from FOIA requests, Obama Administration releases, and Snowden. We now know much more about who is targeted and how their data is used, which was the big problem with standing in the 2008 case.
Among other things, we now know that communications are targeted if they contain text “about” FISA targets. This means that the plaintiffs no longer have to demonstrate the likelihood that their colleagues are being targeted, but need only demonstrate that they are likely talking about targets, which is far easier.
Cite for that case?
I don’t think so - the majority specifically said that the probability of injury wasn’t sufficient to show standing. Alito went on forever about that in writing his opinion. I’m not seeing how the revelation of a specific technique (upstream) changes the calculation that Alito laid out. The majority said that just because the ACLU thought their communications could be monitored under FISA, doesn’t mean that they were, or that the Government was using that method, or that the government actually used a search term, or that those communications actually came up, etc. In essence, Alito laid out a dozen different ways in which an ACLU email may not have been collected, and barring any information that it was, that the ACLU’s claim of harm was too hypothetical - or maybe even unlikely - for them to actually have suffered any harm.
(I’m not commenting on the validity of his reasoning, I’m simply not seeing how this case would wind up being decided any differently,)
The 2008 case was brought before the FFA was used at all, and the five justice majority held that the threatened harm was too speculative since the authority hadn’t even been used yet.
Alito reasoned that “respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a,” and that “Moreover, because §1881a at most authorizes—but does not mandate or direct—the surveillance that respondents fear, respondents’ allegations are necessarily conjectural,” and that we don’t know if the FISC will even authorize such surveillance. Now we do know about the NSA’s targeting practices, their actual surveillance practices, and that the FISC authorized them. The complaint alleges that substantially all communications are seized (which is new info). That makes it about as certain as it gets in chilling cases that at least one of the named plaintiffs has had at least one communication seized.
Standing is not a slam dunk here, which is why the complaint devotes so much attention to it. But I don’t think anyone thinks its a slam dunk that there is no standing.
(Worth noting also that the ACLU, as one of Snowden’s attorneys, may have direct proof of the monitoring of some of the communications alleged to be monitored in the complaint, should there be a factual challenge to the complaint’s allegations about this.)
Perhaps not a good example: Wikipedia is certainly directed by Wikimedia, a foundation in San Francisco, but they would rather deny ownership of content:
The WMF does not edit Wikipedia content (except for occasional office actions). The community handles content, because if the WMF did take responsibility for content, it would introduce liability issues per Section 230 of the Communications Decency Act.
Who owns the encyclopedia articles? The articles hosted on this site have been edited by many people, each of whom has (by editing the article) agreed to release their contributions under the Creative Commons Attribution-ShareAlike license. As such, the articles are free content and may be reproduced freely under this license.
Therefore, it seems likely Wikipedia is now transnational. If there was suing on on, they could be sued anywhere Wikipedia is available.
And, most countries’ major websites ( for newspapers etc. etc. ) are often hosted outside the country they cater for. I can think of half a dozen reasons why this is helpful. Wikipedia in Britain is hosted in the Netherlands. As may be seen by the little flag in the URL bar.
I am of the learned opinion that people who tell one to get over it, or get with the program or any other condescending imposition of conformity etc., need to be rolled in a carpet and kicked to death, Mongol-Fashion.
I’m not very compelled by abstract privacy arguments. I don’t care if the government monitors my porn habits (though I understand lots of people feel differently). I am compelled by the specific argument that governments cannot be trusted with information that would help them to suppress dissent, barter human rights for other goals, and generally engage in nefarious behavior that they wouldn’t be able to engage in without massive privacy violations.
So I would not trade giving the government this massive power in exchange for the speculative ability to prevent a few terrorist attacks.
That said, I’m one of those people who thinks that deaths by terrorism should not be weighted at worth ten thousand times more focus and expense than deaths by, say, non-negligent accidents. I think maybe a 10:1 ratio would be more appropriate. So I suspect my weighing of the privacy and security interests doesn’t match up with the democratic majority in my country, who are perfectly willing to spend trillions and make ordinary life noticeably less free for most Americans if it means preventing another 9/11.