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Comment Re:Fundamentally Flawed (Score 1) 78

Your whole extended statement fell apart with the title.

"NSL = for things that DO NOT require a warrant"

Actually, warrants are the mechanism by which a free society achieves balance between personal and collective rights. Absent that...

Nope. Not everything government does requires a warrant. That is an undeniable fact. The case law which says metadata, for example, affirmatively does not require a warrant, has no expectation of privacy, and is not covered by the Fourth Amendment, is over 35 years old.

It got even weaker when you stated that "NSLs DO have massive amounts of LEGAL oversight..." States facts not in evidence. What, exactly, are these "massive" oversight mechanisms?


"Hey, can you help us out..." is laughable because you characterize this as a friendly understanding between actors who know each other. In fact an NSL is 100% coercive, cannot be challenged, and it's secrecy is the ultimate weapon. An NSL compels the recipient to do as demanded and never tell anyone else. The NSL itself could be illegal but the recipient cannot even inform a lawyer, as that would violate the secrecy provisions. Oh, but do tell us about the "massive" oversight.

But NSLs -- which are nothing more than a letter -- are not illegal. That's the point. In fact, the only thing found unconstitutional about NSLs were the extent and length of the gag orders accompanying them.

By your logic, any law enforcement or government entity should NEVER be able to approach a business about anything and ask for help. It should ALWAYS require a court order, no matter the information requested. That's how you might think it should work, but that is not compatible with reality.

When you state "...if a NSL is used, the person is almost certainly a foreign intelligence target under active investigation..." you put the cart before the horse. Your language is that of conclusions concerning a criminal, as found by a court of law. Except this comes before a court of law has had any chance to hear a case. This is lazy argumentation to support a flawed process.

No, you are putting the cart before the horse by implying that a warrant is required for information or persons who fundamentally DO NOT require a warrant. What you are essentially saying is that a warrant-like approval process needs to happen for any sort of action or information request government takes or makes, ever, to ensure that the government isn't "lying" about it not needing a warrant...which defeats the whole purpose, and timeliness, of not needing a warrant.

Finally, you mention FISA. This joke of a process has a 97% warrant approval rate. Standard court warrants have about a 60% approval rate. Literally nothing else needs be said about how weak the FISA process is; statistically, this approval rate cannot be explained or justified. Except, by repeating what the FISA court really is: A one-sided process meant to produce a Yes answer, with no right of reply or rebuttal. Retroactive FISA warrants are further evidence of the corrupt/flawed/lazy thinking that produced FISA in the first place.

This comment truly shows your ignorance, because you have no idea how FISA works. At all. The IC does not approach FISA with requests that will probably get denied, because it is a massive waste of time and resources for the literal armies of lawyers who submit FISA requests -- for FOREIGN intelligence collection -- on behalf of IC agencies. Law enforcement agencies, however, do this all the time because they have no other choice but to try. So your assumption that just because the approval rate is high is because it's a "rubber stamp" and really doesn't care about what it's approving is false.

Of course, you have already made up your mind and use a lot of specious and absolutely false logic to arrive at your conclusions, so this conversation is moot.

Comment NSL = for things that DO NOT require a warrant (Score 1, Troll) 78

Note what this (or any) NSL does not request, for good or ill given the explosion in digital communications since Smith v Maryland in 1979 and subsequent case law (which effectively says that metadata, as "business records" provided to a third party, do not have an expectation of privacy and are not covered by the Fourth Amendment): CONTENT of communications.

Note what is also missing here: the target. People assume it's an innocent US Person. The fact is, if a NSL is used, the person is almost certainly a foreign intelligence target under active investigation, and the reason why requests are "dropped" is because IF a NSL was used in the first place, we don't want to reveal any further sources, methods, or what we know.

Unless and until the Supreme Court of the United States speaks on this matter again -- and it very well may, and it very well may rule differently given how the communications landscape has changed in 35+ years -- that is the law of the land. Not peoples' opinions, not tech commentator know-it-alls, not self-proclaimed security experts.

If something doesn't legally require a warrant, it amounts to a formal request. I'm not saying it's always perfect execution, but the whole purpose of a NSL is so that it runs through its own legal process -- which, again, is for information that does NOT require a warrant. I know people think it has no oversight, but either something requires judicial oversight, or it doesn't. And NSLs DO have massive amounts of LEGAL oversight, just not a warrant signed by a judge -- repeating myself here -- because one isn't required for information sought by a NSL.

And like information that we seek under Intelligence Community authorities, we don't want the target of the collection or surveillance knowing we are targeting them, or where, or how. Yeah, it sucks, and it's imperfect, and all that, but even in a democratic society, you can't just say every single national security or intelligence issue has to be in the open. That's not how even democratic societies work, or can work, or should work, when it comes to national security matters. Some things tilt too far in one direction based on national events, or politics, etc. Then they tilt back. It's never fast enough for proponents or critics.

The main issue is that people say that something like a NSL is "bad" because it doesn't have judicial oversight in the form of a warrant. If the information sought doesn't legally require a warrant, I don't know what to tell them. Then when we do actual court orders and warrants when required for foreign intelligence collection, issued by the very court whose sole purpose is to protect the rights of Americans under the law and Constitution in the context of foreign intelligence collection, they complain because the evidence is heard and rulings are issued in secret.

A NSL at its core is nothing more than a formal process and notification, with a lot of other legal considerations surrounding it, that is the equivalent of someone saying, "Hey, can you help us out...and oh, by the way, here's a bunch of other legal crap which justifies this. And don't tell anyone, because this is a national security issue." I understand why people make an issue of it, because they'll say, ok, even if it's used for all "bad guys" it still "could be abused". Uh, and? Any government power at all "can be abused". Secret ones "can be abused" in secret.

And yet, the government still has to have powers, and some of them on the national security and intelligence side are necessarily cloaked in secrecy. And in the conduct of war, diplomacy, law enforcement, and counterterrorism as the United States, with our myriad interests at home and abroad, we do all of these things for a reason. No, it's never perfect, and it never will be. People act surprised when the use of something like NSLs skyrockets since the late 90s...well, guess what else skyrocketed since the late 90s? The goddamned internet, which we invented, and our enemies are literally using it against us. No, not bullshit like tweets and Facebook pages; adversaries using the internet for no-shit coordination, collaboration, and C2. AND intentionally using US systems and services because they know that it's a legal rat's nest for us to get to them there, even if they're non-US Persons outside the US.

So anyway, yeah, it sucks, but the general attitude most people in the national security and intelligence communities are operating under is we had better be using the full extent of the capabilities afforded to us under the law, and we don't make the law.

The other issue, speaking broadly, is that sometimes the target itself is not subject to Constitutional protections at all, because the target is a non-US Person outside the US, and it is absurd to argue that if said target's communications touches the US in any way, suddenly it should be subject to Constitutional and warrant protections, because warrantless efforts to obtain it otherwise "could be abused".

SCOTUS can either speak to it, or Congress can pass a law. My own PERSONAL opinion, in a vacuum, and absent everything else I know, is that metadata should be protected -- because of 1.) the explosion in digital communication and the internet in the ensuing decades, combined with 2.) government's ability to exploit large amounts of collected data because of advancements in technology.

I would point out that even though portions of the statute with regard to NSLs have been found unconstitutional, it has only been about the gag order and length of time, not the use of a NSL, which is essentially a formal letter.

The issue of who the Constitution protects and where has many different arguments, but in a traditional law enforcement/intelligence/national security context, generally we see it as protecting either 1.) US Persons (be they citizens, permanent residents, lawful visitors, groups of the above, etc.) or 2.) people IN the US, no matter who they are.

The FISA Amendments Act shifted this a bit due to the reality that over 70% of international internet traffic touches the US somehow, by design or incidentally, and we had an absurd situation where both ends of a conversation would be AQAP members outside the US, who are not US citizens, and have never been in the US, who we suddenly can't collect on, even with capabilities outside the US, because one of them is using Hotmail.

If Constitutional protections applied to everyone, everywhere, my view is that the concept of borders and nation-states is meaningless, and it also destroys foreign intelligence collection -- and I mean Destroys. That said, we can certainly argue that we want to follow Constitutional *principles*, and aside from things people want to cherry pick that they don't like, I would say that, generally speaking, we do that.

Comment Re:It's not Obama (Score 1) 405

And this is totally unlike what every other president did who had a 747 to hop on to?

Ooh, good retort! Anything that another asshole in the white house did before Obama totally excuses him, even if he's wagging a finger at us driving cars while he rides in a fucking airliner.

When did it become OK to be patriotic and yet call the elected leader of this country "that asshole" instead of The President?

Anyone who hasn't called a president an asshole isn't a true American.

I have more respect and love for the country

Do you really not understand the difference between a politician and the country?


Comment Re:How? (Score 1) 486

Militarily ISIS is in terrible shape - shrinking area of control, no industrial base or educational system, and alienating nearly every government on the planet - the Arab governments, in particularly, are directly threatened by ISIS because ISIS wants to overthrow them and establish their own Theocracy.

But that's why they're turning to terrorism. The attacks in Paris and elsewhere are a sign that they're losing. Note that almost all of the attacks are against other Moslem countries, not Paris, the US, etc., which (IMO) is why the Islamic world is largely turned against ISIS.

"You need tender loving care once a week - so that I can slap you into shape." - Ellyn Mustard