FISA? Gezundheit!

 

In a column for ‘all things D‘ (democratic I guess), Arik Hesseldahl wrote an article called ‘Microsoft and Google Will Sue U.S. Government Over FISA Order Data‘. A decent article! I did not completely agree with it, but the man wrote a decent story of his view and he was not playing the ‘spin’ game. I can respect that, even if I do not agree. The same could be said for Bill O’Reilly. I do not always agree with him either, but his clear and clear outspoken views are valuable to hear. So, in the case of Hesseldahl I responded.

The response (from another reader), which was “Your analogy is accurate, but your point is misguided. The government was afforded specific rights by the people via FISA laws. Not only were those rights abused, but activities outside the scope afforded them were taken, and are therefore illegal.” was interesting to read. There was more than that, but basically I was the misguided one.

Fair enough!

So let’s take a legal look at this Foreign Intelligence Surveillance Act (FISA), especially the amendments which are extended until July 2015. It is the work of Edward Liu, who is currently the Legislative Attorney at the Congressional Research Service.

The initial find where this all starts can be found on page 4 of that work “National security letters, which are analogous to administrative subpoenas and are authorized by five federal statutes, require businesses to produce specified records to federal officials in national security investigations.

I will ignore the footnotes, as they will just delay. The important one for this quote refers to “Legal Background and Recent Amendments, by Charles Doyle“. The person not agreeing with me relied on the quote “but activities outside the scope afforded them were taken“. Was it? Let us not forget, this is about Foreign Intelligence. Google, Facebook, MSN are global organisations. Collecting and servicing billions (with 330 million US citizens, we can clearly state that there is a massive amount of foreign involvement).

The next part is how this is about transgressions on US citizens. Is it really? These Americans, mostly innocent people, include a fair amount which are playing fake identities, often trying to impress women showing the sexiest outfits. This is not wrong, illegal or questionable (actually, that might be a case), yet many of those profiles are linked to people not being those people at all. Some are criminals collecting identity details, some are simple scammers and possibly 1 out of roughly 734 will really be that woman, 1/734 is not that good an odd. The alphabet groups do not really care about these parties, but when we consider that some of these tactics are employed by the very terrorists and the supporters they are trying to find it becomes a new ball game.

Page 5 of that document gives us the next little snack “During the examination of the events leading up to the attacks, it was reported that investigations regarding Moussaoui’s involvement were hampered by limitations in FISA authorities.“, so accepting that, then finding these dangers require a little more than they are now getting.

That gem is presented on page 9 of the aforementioned document.

In United States v. Petti, the U.S. Court of Appeals for the Ninth Circuit was presented with a challenge to a roving wiretap under Title III alleging that roving wiretaps do not satisfy the particularity requirement of the Fourth Amendment. The court initially noted that the test for determining the sufficiency of the warrant description is whether the place to be searched is described with sufficient particularity to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.
Applying this test, the Ninth Circuit held that roving wiretaps under Title III satisfied the particularity clause of the Fourth Amendment. The court in this case relied upon the fact that targets of roving wiretaps had to be identified and that they were only available where the target’s actions indicated an intent to thwart electronic surveillance.

The latter part was also a footnote link to United States v. Bianco, 998 F.2d 1112, 1124 (2nd Cir. 1993) (similarly holding that a provision authorizing roving bugs under Title III was constitutional)

So why are Americans so set upon claiming illegality?

My initial response was about people bragging on Facebook the 243.1 ‘stupid’ things they do to every Tom, Dick and Harry and then nag about the fact that the government takes a look. It was never about them, but about finding those attacking America. It seems to me that many of these people are way too eager to complain when they are asked to help keep their nation safe.

From my point of view all Americans should hand their on-line ‘data’ to the NSA.

Why?

Well, consider the field of predictive analytics. If we are to flag a terrorist, then we need to know the data that makes for non-terrorists too. Whether this profile data concerns a horny student, an adulterous husband/wife, a fence not the one in the garden), a carjacker, a geek or an average parent. If the system has ALL the facts, the more we know, the more pronounced an identifying flag becomes. If predictive analytics is about finding the odd one out, then basing the search on grey people alone will not do, or at least will result in many flags that need more checks. So if we accept that this is about the need to analyse current and historical facts to make predictions about future or otherwise unknown events, then we must have all the data. If we know what a US Apple Pie eating and cuppa Joe drinking person does, then we can see many more elements. This all reflects on our acts on-line and off-line. They will give us a line that raises flags. Flags based upon things we do and even more flags on things we are not doing. That results in a picture!

Now wonder, why are you against helping your nation?

Is this about your privacy? If so, then why are you on Facebook/Google+? These places are to share with friends and THEIR friends (so often your data is shown too many more then you anticipated/expected. In addition, many seem to incorrectly use Facebook a lot more often then they think, which in turn means that your birthday party invitation went to 17 million connected people (it happened in the US, the Netherlands and a few other places, and it happened more than once).

And those so called ‘criminals’ claiming privacy? Well the previous case actually left those in power as Amendment 4 transgressions were about “intent to thwart electronic surveillance.” we are not talking about the level the ordinary criminal goes through. This is avoidance on levels that require highly advanced router hacking skills. Can it be used by both? Yes it can, but let us not forget that the court judge could throw some of these facts out in court at a moment’s notice, giving the alleged bank robber a free out of jail card on the spot. The NSA (and peers) know this and they have ZERO interest in these types. They care about the next attack that will come at some point. They just want to figure out when, where and by whom!

If you are still worried about all this, then consider the amendment as discussed on page 14. “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to a [foreign intelligence, international terrorism, or espionage investigation.]” So in case of those ‘excited’ students fearing privacy, when was the last time you tried to C-4 her lingerie drawer so that your date arrived without panties? If not, then why worry? (Apart from the small fact that you should not be having access to C-4 to begin with).

So, I disagreed with the assessment made on my response, which remains fair enough. I believe that intelligent people on both sides of the isle can come to wisdom. Whether you stand next to the NSA council, or you side with a civil-libertarian. The origin of UCLA proves the need for civil liberties in no lesser degree. I personally believe that the wisdom is somewhere in the middle. The only part that I never agree with are those blindly hiding behind the quote from Benjamin Franklin “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.” The quote is wise, but based on another age where there were clear nations, clear missions and where life did not revolve around greed. Because considering the events from the past few years we see more and more correlation with terrorism enabled through desired greed than anything else, for the greedy will only remain loyal to the currency they worship, a simplistic life without true values.

 

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