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Old 11-29-2016, 12:23 AM   #21
Agayek
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Originally Posted by Darth_Revan View Post
6. Again, the FISC does not set precedent, because it does not consider questions of law.
Does the court's decisions vis-a-vis issuing warrants not set precedent for criterion sufficient for a warrant? And would that not, potentially, open it to violations of the Fourth Amendment over time?

Honest question, I'm far from an expert on this affair, but I could easily foresee a scenario where this court leads directly into a big-brother situation. I don't think such is particularly likely, mind, but it's pretty feasibly the first step on that road.
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Old 11-29-2016, 12:33 AM   #22
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Quote:
Originally Posted by Agayek View Post
Does the court's decisions vis-a-vis issuing warrants not set precedent for criterion sufficient for a warrant? And would that not, potentially, open it to violations of the Fourth Amendment over time?

Honest question, I'm far from an expert on this affair, but I could easily foresee a scenario where this court leads directly into a big-brother situation. I don't think such is particularly likely, mind, but it's pretty feasibly the first step on that road.
In a word, no.

The criteria for a warrant are set forth in the Fourth Amendment itself:

Quote:
Originally Posted by 4th Amd.
...and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
As is the formula for articulating probable cause:

Quote:
Given the totality of the evidence, a reasonable person would conclude that an activity or incident has occurred, is occurring, or will occur in the future.
You either fulfill the requirements, or you don't. If you do, you get your warrant. If you don't, you don't.

Believe it or not, it really is that simple.
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Old 11-29-2016, 12:47 AM   #23
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Believe it or not, it really is that simple.
I guess I should rephrase my question. Specifically, how does one determine that "a reasonable person would conclude that an activity or incident has occurred, is occurring, or will occur in the future."? And what protections are in place to ensure that we don't have a series of increasingly less ...reasonable, for lack of a better word, decisions that each justify themselves using the previous decision?

To try and simplify it further, what is stopping the court from a series of cases like "Reasonable suspicion for A that gave X to B, issue warrant for X from B" to "Reasonable suspicion for A and circumstantial evidence A gave X to B, issue warrant for X from B" to "Reasonable suspicion for A and a link to B, issue warrant for X from B"?

That's obviously a bit hyperbolic/accelerated, but I think you can see the concern. If the court can use previous decisions as justifications for their interpretation of what is reasonable, and there's no public review of their decisions, it could very, very easily lead to an eventual scenario where they're using previous decisions to justify an interpretation that literally no one else would find reasonable.
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Old 11-29-2016, 01:09 AM   #24
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Originally Posted by Agayek View Post
That's obviously a bit hyperbolic/accelerated, but I think you can see the concern. If the court can use previous decisions as justifications for their interpretation of what is reasonable, and there's no public review of their decisions, it could very, very easily lead to an eventual scenario where they're using previous decisions to justify an interpretation that literally no one else would find reasonable.
I can see your train of thought. However, warrants are granted on a case by case basis, so they don't rely on previous cases. The 'reasonableness' doctrine has been around for more or less ever, and it's one of the squishy parts of the law that sounds expansive but in practice there are a much more limited number of ways to demonstrate that you reasonably have probable cause.

Some are very explicit: 'I saw him do it.'

Some less so: 'There was blood on his watch strap that was the victim's blood type and he was in possession of the victim's cell phone.'

Etc. Both are reasonable bases for suspicion.


Now, given all of this healthy discussion, I'd come back to the question of whether or not having a Court specifically designed to hear these requests would or would not adequately protect the rights of the British citizenry from unreasonable searches. I contend that it would. @Taure would know what warrant doctrine is like in the UK if it differs much at all, but I think the circumstances are roughly the same.

What say you?
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Old 11-29-2016, 01:29 AM   #25
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If the court works as intended, it'd be enough I feel. I don't like how opaque it is and would like some kind of elected body to review their decisions (probably a Senate committee or whatever the UK equivalent is) as a fallback safety measure, but as long as everything works as advertised, it's perfectly sufficient for protecting the rights of citizens.

From my perspective, the only real issue with the setup is how secretive it is. It can't face public scrutiny and so can't be kept honest. A Senate review committee or the like that can call out bullshit and invalidate a given warrant if required would go a long way to fixing that methinks.
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Old 11-29-2016, 02:28 AM   #26
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Yes, there's some oversight when it comes to granting a warrant. There's actually a double lock, as far as I can tell, in that a Government Minister must first order the warrant issued, and then a High Court Judge who sits on the new Investigatory Powers Commission must approve the warrant.

There's oversight of that process from a parliamentary committee, and also from an independent review body.

However, my main concern is the fact that the Act does not require people to have a warrant in at least some circumstances.

Also, why does the Food Standards Agency, the Ambulance Service, or the Gambling Commission need the right to access domestic internet records? The list of authorised agencies is...excessive.
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Old 11-29-2016, 08:13 AM   #27
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1. The process is not opaque. The FISC's only purpose is to grant warrants and ensure legal compliance of established procedure. Like all warrants, FISA warrants are granted only upon the provision of probable cause, oath or affirmation, and a description of what is to be searched and what will be seized. The only addition is that it requires the probable cause to demonstrate that the target of the warrant is an agent of a foreign power. The warrants are prepared by lawyers, and presented to the judges. The FISC does not have clerks.
2. The law is certainly not opaque to anyone who takes the time to read it. You can read the relevant legal code just by googling it (50 USC Chapter 36), and a detailed text of the most recent law here: FISA Act of 2008.
3. The FISC does not create law. It only grants or rejects warrant applications. The closest it comes to making law are in the legal procedures it requires for warrant applications.
4. The judges on the FISC are not rubber stamps. They're anything but. They require strict adherence to procedure and strict demonstration of probable cause. The only reason that the court rarely rejects an application is that the people applying for warrants are very good at their jobs, and they never submit an application unless they are sure of the basis and of the procedural validity.
5. You cannot challenge a warrant. So granted, it has full validity. If it wasn't based on firm ground, it wouldn't have been granted.
6. Again, the FISC does not set precedent, because it does not consider questions of law.

Transparency in this case is a fool's errand. Transparency would invalidate the entire point of a secret warrant: The target of the warrant cannot know he is being watched, or he will evade scrutiny.

As for your final point, this already exists. Justice scours every application for potential problems before it ever submits the applications. A Devil's Advocate would be a pointless redundancy.
There's a lot of things that are simply wrong in your response. I recommend you read the court's own letter detailing its procedures and staff, as well as the rules of procedure contained within it (or an updated version). You'll find that the court does have staff, including clerks, which do work closely with justice to review warrants, and that the court does review issues of novel law (they even have procedural rules for doing so). You should also review the novel legal decisions that the court has handed down, which we know about through leaks, particularly its expansion of the Special Needs exception to warrant requirements. This is the opaque law that I am referring to.

Warrants are not automatically valid if granted. They can be challenged, and if they are found to be based on fraud by the law enforcement officers, the evidence obtained is unusable in a trial. Due to the subject matter dealt with in these cases, a trial is less likely, which creates a problem: The incentives to defraud the court and get your warrant are high, and the disincentives are low. There isn't enough oversight to prevent bad actors from hijacking the process.

You are sort of right that a warrant granted, even under insufficient probable cause is still sort of valid. Law Enforcement officers can rely on warrants that they don't know are not supported by probable cause, if they are validly issued. Evidence obtained from such faulty warrants is admissible. This doesn't mean a court issuing faulty warrants isn't a problem, nor does it mean we should set up a court insulated from review to issue thousands of warrants which may be faulty.

The Justice in the letter I have posted above has characterized the review process as fairly exhaustive, but the numbers, and structure are what lead me to be concerned, as well as other writers. The court is considering roughly a thousand applications a year, and substantively modifying about 150 of them. The exact number of applications under a specific statute was deemed classified, and is not included in the report.

The worry is that there isn't appropriate oversight. We don't trust the justice department to self moderate (hence why we have a court in the first place), and now we can't trust the court to moderate the justice department, because the structure of it leads to ideological capture. Combined with the highly sensitive nature of the subjects it deals with, the lack of trials, the high success rate, and the close relationship between the Government and the Court, there needs to be more oversight, not less. More transparency, not less.

Transparency isn't a bad goal. It can be accomplished without compromising the investigations, with the dedicated review and redact board I suggested in the previous post. I'm not suggesting that all warrants be issued immediately to public scrutiny. Only that all warrants, when they don't need to be hidden any more, be released. And that legal opinions, such as the secret rulings which allowed warrantless collection of bulk data, be released as well.
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Old 11-29-2016, 08:47 PM   #28
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There's a lot of things that are simply wrong in your response. I recommend you read the court's own letter detailing its procedures and staff, as well as the rules of procedure contained within it (or an updated version). You'll find that the court does have staff, including clerks, which do work closely with justice to review warrants, and that the court does review issues of novel law (they even have procedural rules for doing so). You should also review the novel legal decisions that the court has handed down, which we know about through leaks, particularly its expansion of the Special Needs exception to warrant requirements. This is the opaque law that I am referring to.
I will readily concede that my response was deliberately simplistic. However, I will not concede my points. The Leahy response is comprehensive and detailed in its outlining of procedure, but on some of the points we are discussing, we are perhaps talking across one another. For example, the 'clerks' mentioned in the letter are administrative staffers. They are not apprentice lawyers seeking legal tutelage and experience, as a clerk for the Supreme Court would, and it was those I was referring to. The staff attorneys serve in triage and legal compliance roles, with the aim being that the judge enters the process only when the application is it its final form.

The Court also does not set legal precedents on matters of law. You cannot challenge the validity of law in the FISC. The Court does not determine that, its only interpretive function is to interpret the application of the existing law when face with, as you described it, 'novel' circumstances. What should be done when a new technology is involved that was not taken into account by the existing law, or what should be done in a specific circumstance that has never occurred before, within the existing law. Those laws are FISA 1978, FISA Amd. 2008, PATRIOT Act and USA FREEDOM Act. Period. That NYTimes article is outdated; it refers to a ruling made based on legal principles later changed by the USA FREEDOM Act.

Quote:
Warrants are not automatically valid if granted. They can be challenged, and if they are found to be based on fraud by the law enforcement officers, the evidence obtained is unusable in a trial. Due to the subject matter dealt with in these cases, a trial is less likely, which creates a problem: The incentives to defraud the court and get your warrant are high, and the disincentives are low. There isn't enough oversight to prevent bad actors from hijacking the process.
You cannot challenge the validity of a warrant in real time. You can't seek relief until after it has been granted, and the only relief that you can get is that the gathered evidence is inadmissible. The threat of tainted evidence is enough to ensure compliance, and even if it wasn't, the disincentives are high: dismissal, fines, and possible imprisonment for you personally, and heavy sanctions to the requesting agency.

Quote:
This doesn't mean a court issuing faulty warrants isn't a problem, nor does it mean we should set up a court insulated from review to issue thousands of warrants which may be faulty.
Your concern is based upon the possibility of a faulty warrant, not the reality of faulty warrants. This is frankly insufficient.

Quote:
The Justice in the letter I have posted above has characterized the review process as fairly exhaustive, but the numbers, and structure are what lead me to be concerned, as well as other writers. The court is considering roughly a thousand applications a year, and substantively modifying about 150 of them.
As is this. Concerns simply based on volume have no basis.

Quote:
The worry is that there isn't appropriate oversight. We don't trust the justice department to self moderate (hence why we have a court in the first place), and now we can't trust the court to moderate the justice department, because the structure of it leads to ideological capture. Combined with the highly sensitive nature of the subjects it deals with, the lack of trials, the high success rate, and the close relationship between the Government and the Court, there needs to be more oversight, not less. More transparency, not less.
The entire process is built around strict compliance. I can see your fear of ideological capture making the Court and the Department vulnerable to being 'caught up in the excitement' or something, but the concern is unfounded. It's based on the fact that there's a high success rate (because of the strict compliance) and the lack of insight into what the warrants have granted, not on a foundation of justified suspicion based on evidence of real abuse, because it doesn't exist. It's innuendo only.

Quote:
Transparency isn't a bad goal. It can be accomplished without compromising the investigations, with the dedicated review and redact board I suggested in the previous post. I'm not suggesting that all warrants be issued immediately to public scrutiny. Only that all warrants, when they don't need to be hidden any more, be released. And that legal opinions, such as the secret rulings which allowed warrantless collection of bulk data, be released as well.
Normally I would agree with you. Transparency in government is, generally, I would say, a good thing. But in this case, I don't. This court and its rulings are state secrets. And because of that, no transparency can ever be granted to the general public until after the classification expires naturally and they're no longer deemed important. Allowing everyone to know their contents before that time would defeat their purpose. The Senate and House provide legislative oversight, and the Courts have a mechanism for it. If you had a board to review and redact them, all you would get back is a blank page. The general public does not need to know.
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