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FISA Court Reverses Order To Destroy NSA Phone Data

timothy posted about 8 months ago | from the rule-of-men-and-not-of-law dept.

Communications 59

itwbennett writes "The U.S. Foreign Intelligence Surveillance Court has temporarily reversed its earlier order that call records collected by the National Security Agency should be destroyed after the current five-year limit. The court modified its stand after a District Court in California on Monday ordered the government to retain phone records it collects in bulk from telecommunications carriers, as the metadata could be required as evidence in two civil lawsuits that challenge the NSA's phone records program under section 215 of the Patriot Act."

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Now we're keeping the data... (4, Funny)

i kan reed (749298) | about 8 months ago | (#46476931)

... to prove we're not abusing it. Yeah, that's the ticket.

(No, this seems like a possibly reasonable decision, for normal courtish type reasons)

Re:Now we're keeping the data... (1)

TWX (665546) | about 8 months ago | (#46476967)

I think George Lucas had a plot kind of like this in some of his movies... complete with letting the hate flow through [us].

Re:Now we're keeping the data... (0)

Anonymous Coward | about 8 months ago | (#46477145)

I was thinking of another George, a bit older... wrote a book about animals once, as well as one about having an older brother or something. :rolleyes:

Re:Now we're keeping the data... (1)

TWX (665546) | about 8 months ago | (#46479727)

Just remember, in the United States, all animals are created equal, but some are more equal than others...

Re:Now we're keeping the data... (1)

NicBenjamin (2124018) | about 8 months ago | (#46479355)

... to prove we're not abusing it. Yeah, that's the ticket.

(No, this seems like a possibly reasonable decision, for normal courtish type reasons)

The legal reasoning is actually the opposite of what you're thinking.

The anti-NSA-lawyers are in a really tough spot. They have to prove the database is a net harm to America, which means they have to be able to prove that it does more harm then good. If they don;t have access to the data, and some NSA guy claims that OJ Simpson would have been able to flee to Botswana if only that one call to a travel agent hadn't been in the database, they are totally fucked.

Re:Now we're keeping the data... (1)

flyneye (84093) | about 8 months ago | (#46481265)

Oh who can believe a damn thing?
If they say they will, they wont
If they say they do, they dont
If they say they arent , they are
Round em all up, drop them in the middle of the ocean and tell them to swim back.
I got no use for fucking liars.You?

Shell game (1)

Anonymous Coward | about 8 months ago | (#46476933)

Just use some shell corporations to keep suing every few years and keep the data forever.

Handy (2, Insightful)

s.petry (762400) | about 8 months ago | (#46476941)

FISA claims it's to hold for court purposes, but the NSA can still search this data while they hold it. So it suits at least one purpose which I'm sure we agree with, but should have come with a very specific instruction like "knock off the bullshit, you treasonous bastards!".

Re:Handy (2)

geekoid (135745) | about 8 months ago | (#46477131)

They aren't treasonous. Do you even know what that word means?

Re:Handy (1, Insightful)

outlaw (59202) | about 8 months ago | (#46477243)

You seem to only recall on of the possible definitions (granted the most common, and the one the government would like to use against whistleblowers):

From WordNet (r) 3.0 (2006) [wn]:

    treason
            n 1: a crime that undermines the offender's government [syn:
                      {treason}, {high treason}, {lese majesty}]
            2: disloyalty by virtue of subversive behavior [syn: {treason},
                  {subversiveness}, {traitorousness}]
            3: an act of deliberate betrayal [syn: {treachery}, {betrayal},
                  {treason}, {perfidy}]

The other two do, in some ways, describe the NSA & FISA

Re:Handy (1)

outlaw (59202) | about 8 months ago | (#46477259)

Bouvier's Law Dictionary, of course, only has the 1st definition, in somewhat more detail

Re:Handy (0, Flamebait)

Anonymous Coward | about 8 months ago | (#46477627)

The other two do, in some ways, describe the NSA & FISA

OK, I see Snowden in that definition. Where do you think that describes NSA and FISC?

Re:Handy (1)

NicBenjamin (2124018) | about 8 months ago | (#46479371)

Of course by definition 3, Snowden is treasonous, because he betrayed his agreement to not snitch on the NSA.

There's a very good reason that anybody who accuses him of being a traitor gets introduced to the legal definition that actually matters in the US: the one in the Constitution.

Re:Handy (1)

gIobaljustin (3526197) | about 8 months ago | (#46477283)

They'd be considered treasonous if we had a sane legal definition of the word.

Re:Handy (1)

s.petry (762400) | about 8 months ago | (#46477879)

We have one, but need a court to hear the case and an attorney with enough power to get the case to court. The latter is the problem, not the former.

Re:Handy (1)

sjames (1099) | about 8 months ago | (#46477321)

The terrorists are our enemy. The terrorists want to destroy our freedom. The NSA and FISA are destroying our freedom. NSA and FISA are lending aid and comfort to our enemy. So, finally, the NSA and FISA are committing treason.

It's at least as good as the sophistry that allowed torture at Gitmo.

Re:Handy (0)

Anonymous Coward | about 8 months ago | (#46479833)

I have to admit that your sophistry is among the best on Slashdot.

Re:Handy (3, Informative)

s.petry (762400) | about 8 months ago | (#46477335)

I do know what the word means, do you know what both the NSA and FISA courts have been doing which compromises the integrity of our Democratic Republic form of Government? You do not see how smear campaigns based on illegally obtained information breaks the Democracy?

Yes they are treasonous, do some homework.

People are not mad about the NSA investigating Iran's centrifuges they are mad at how the NSA is abusing powers to spy on everyone in the world, and sell data which reduces liberty and democracy world wide. They are mad about FISA courts becoming a rubber stamp organization for this agency to abuse it's powers.

Re:Handy (1)

CrimsonAvenger (580665) | about 8 months ago | (#46478249)

I do know what the word means, do you know what both the NSA and FISA courts have been doing which compromises the integrity of our Democratic Republic form of Government? You do not see how smear campaigns based on illegally obtained information breaks the Democracy?

Yes they are treasonous, do some homework.

From TFC (The F**king Constitution):

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Note that "break the Democracy" and "compromises the integrity of our Democratic Republic form of Government" are not mentioned there.

So, no, they're not treasonous.

Even if they were treasonous, finding two witnesses to the same overt act might be a bit tricky, since you'd first have to define a specific overt act that was treasonous, then find two people willing to admit to witnessing the act.

Re:Handy (1)

s.petry (762400) | about 8 months ago | (#46478581)

Finding two witnesses is a simple task. Start with the whistle blowers and work your way out. Of course they will need to declassify data in order for us to have "proof" of their wrong doing, but that's a court issue not a Constitutional issue.

As to the NSA declaring war on America lets run down a list. If they have been planting malware on computers in the US they have waged war against their own country and destroyed property of US citizens. If they have spied on Americans against the 4th amendment they have declared war on America. If they have handed data on US citizens to foreign agencies (which they have done), and compromised the integrity and credibility of the government they have further declared war on the Republic. If they have caused undue harm to US citizens by violating their basic human rights they have declared war on America.

Their declaration of war is exactly what people claim "terrorists" have done to declare war on the US. The difference is really one of scale where the NSA is far worse. And before you make a silly statement, "terrorists" are not a country so it is not an official declaration of war being referred to in the "War on Terror" either.

Re:Handy (1)

RabidReindeer (2625839) | about 8 months ago | (#46478827)

I think that turning the USA into a nation of fear, undermining basic constitutional rights can reasonably be considered giving aid and comfort to our enemies. For it erodes the reasons why so much of the world looked to us, instead of them.

I think that destroying the reputation of the USA as a bastion of freedom and morality, where torture was not condoned and imprisonment could only be done within the constraints of the law gave aid and comfort - and outright joy - to our enemies.

So even within the USA legal definition of the word "treason" there are grounds. There are many secrets that governments need to keep, lest it enable our enemies to work against us, but recent revelations have been about secrets which, when revealed made our allies wary of us. And weakening our alliances certainly works to the advantage of our enemies.

Re:Handy (1)

NicBenjamin (2124018) | about 8 months ago | (#46479445)

By this standard Snowden is also guilty of treason. He didn't protect US Democracy at all when he revealed the NSA and Aussies were spying on Australia. But he did certainly make it harder for the Indonesians to ally with us.

Of course that's ridiculous, which is why historically you have to be either actually shooting at the US, or supplying info to people actually shooting at the US, to count; and nobody involved in the NSA leaks has been doing that.

Re:Handy (2)

NicBenjamin (2124018) | about 8 months ago | (#46479409)

Re-read the Constitution. It's only about democracy in the wet dreams of particularly stupid high school civics teachers.

It specifically allows slavery, even tho it's too cowardly to use the word. It even gives slave-holding states extra votes in Congress. There is no right to vote. The Constitution was adopted partly because the preceding Articles of Confederation hadn't created a strong enough government to ethnically cleanse Ohio of Indians properly.

I'll admit that it turned into a fairly democratic, and pro-freedom document; and that the Founders were really good at pretending they only wanted to protect freedom. But we were not a Democracy in any meaningful sense of the term prior to the Abolition of Slavery, and we not really a very good Democracy until LBJ broke segregation. Since the legal definition of treason precede both events it cannot possibly be related to the US being a democracy.

Re:Handy (1)

s.petry (762400) | about 8 months ago | (#46483737)

The US has never been a Democracy, it's been a Democratic Republic. A Republic closely matching the definition in the book by the same name authored by Plato in ancient Greece over 2,500 years ago. If you wish to appear pedantic at least do so correctly. Study the book, it's pretty amazing how close we got until the government was successfully undermined. Socrates describes human nature in that book too. Reading that book is discouraged and the knowledge it contains is not well known. Most people don't read the book, and most people that claim to have read it have only browsed a couple chapters.

Don't mistake what I said, I never claimed US Government was perfect. I said it was as close to a perfect government as we have seen. Humans have been trying to undermine it constantly because it would distribute power if it actually worked as Socrates defined.

Re:Handy (1)

Anonymous Coward | about 8 months ago | (#46477447)

Do you even know what that word means?

Aiding and abetting foreign government agents such as GCHQ in committing acts of war such as espionage against the States and its citizens?

Committing acts of war such as espionage against the States and its citizens?

All that is missing are two witnesses...

Re:Handy (1)

Cenan (1892902) | about 8 months ago | (#46481471)

You're only actually missing one witness, the other is just stuck in Russia due to an invalidated passport.

Re:Handy (1)

CanHasDIY (1672858) | about 8 months ago | (#46477449)

They aren't treasonous. Do you even know what that word means?

Sure - a traitor is someone who either aids and abets enemies of America, or one who declares war on the same.

Per the Constitution, "America" is defined by her people, so you can equate "enemies of America" to "enemies of the American people."

As the NSA is routinely violating the civil liberties of American citizens, with impunity, they are de facto enemies of the American people, and thus, they and anyone who assists them are traitors. Same goes for the "War on Drugs" folks, albeit due to the other kind of treason.

Re:Handy (2)

cold fjord (826450) | about 8 months ago | (#46477681)

If you ever find yourself up on charges before a court, I have a piece of advice for you: get a lawyer, a real lawyer. One that understands the law.

Re:Handy (1)

Nephandus (2953269) | about 8 months ago | (#46479603)

Yeah, but by "the law" here, you just mean whatever the sleaze currently in power care to pretend it is at the moment.

Re:Handy (1)

cold fjord (826450) | about 8 months ago | (#46479737)

That is an interesting notion you have there. Feel free to ignore my advice. Let us know how it turns out.

Re:Handy (1)

Nephandus (2953269) | about 8 months ago | (#46480633)

Irrelevant. You're conflating the law with what actually happens in court rooms and the like. They're two different things. The fact (de facto) of how those in power act isn't the law (de jure). Corruption doesn't rewrite law it finds inconvenient by merely existing. They just ignore it and lie.

Re:Handy (1)

cold fjord (826450) | about 8 months ago | (#46513375)

Your distaste for acknowledging the existence of written law and precedent doesn't render it nonexistent. Facts are stubborn things.

Re:Handy (1)

Nephandus (2953269) | about 8 months ago | (#46514001)

Your mindless apologist for sleaze does render you sheeple though.

Re:Handy (1)

CanHasDIY (1672858) | about 8 months ago | (#46481769)

If I ever find myself charged with treason, I think I'll have bigger concerns than my choice of representation.

Like applying for asylum.

BTW, snide remarks don't really provide a counterpoint to my statements or reasoning.

Re:Handy (0)

Anonymous Coward | about 8 months ago | (#46484953)

Alright, I consider what they did an act of war. If another nation did what they have done to US citizens, there would be armed combat.

That said, we know that:
Clapper and Gen. Alexander are guilty of Perjury.
They lied to the Congress, under oath, about the scale scope and operations of the NSA.

NSA and FBI (and many of their agents) are guilty of Computer Fraud and Abuse
FBI hacked the Tor website, and distributed malware to thousands of computers foreign and domestic.
NSA hacked into the internal networks of Google and Yahoo! to read unencrypted data within their LAN.
NSA has used backdoors in SSL/TLS, PGP, and Windows to gain unauthorized access to systems it doesn't own.
NSA document released a few days ago, not from Snowden, indicates that the NSA planed in 2009 to infect citizens computers with malware for intelligence gathering operations. The official denial letter didn't actually deny the plan, nor that the NSA doesn't install malware on the computers of American Citizens.

NSA is guilty of infringement of the 4th amendment, specifically illegal search and seizure of personal papers
The NSA not only the hacked systems above, but also through National Security Letters that were not authorized by the FISA court. Moreover, I'd argue even those gained with approval of the FISA court fail the test of being specific and having probable cause the items search/seized being relevant to a crime have been committed. These letters are used to get ISPs to turn over in bulk email metadata, telephone companies to turn over call metadata. Who we associate with, and communicate with is a private matter, and the records amount to digital personal papers that just happens to stored on someone else's computers.

Conspiracy to extortion and blackmail, and possibly extortion and blackmail
The documents Snowden released includes policies and plans the NSA and FBI had to publicly discredit and blackmail people it viewed as "political agitators." Using the data mentioned above, it gathered porn viewing habits of "potentially damaging speakers and activists."

TSA and customs are guilty of illegal search and seiizure
The law is clear, even if the courts don't agree. Using private airlines doesn't imply consent to search. Moreover, the fifth amendment extends into digital space, and you cannot constitutionally be coerced to give up encryption keys at the border. There is no Constitution free zones in the Constitution.

Failure of due process
NDAA authorizes federal agents to detain indefinitely without trial US citizens on US soil who are suspected terrorists, without legally defining what a "terrorist" is or what the legal bar is for "suspicion." Moreover, the law cannot be challenged in court of law, because the accused gets no trial to bring up the constitutionality of the law as written.

CIA is guilty of illegal search and seizure
CIA searched and seized documents from the computers of members of the Senate Committee of Foriegn Intelligence. Including Sen. Diane Feinstein, who advocates for the continuation and expansion of the metadata collection program. The senator was not happy about being spied on, but maintains her stance on the NSA's efforts.

I personally believe that any of these taken in isolation is an act of war. If any other nation were to be caught doing one of these to US citizens, our military would be at their doorstep. Taken together, I believe that the US government, or factions of it, have declared war on the American people. We are the "evil terrorists" they fear. We need to take our nation back. Look up the voting records of your congress critters on the issues.

If they voted yes to any of:

NDAA, Patriot Act,
NDAA Reauthorization,
Patriot Act,
Patriot Act Reauthorization,
FISA Amendment,
FISA Amendment Reauthorization,

OR If they no to Justin Amash's bill to defund the NSA programs.

Vote them out.

Re:Handy (4, Insightful)

Krishnoid (984597) | about 8 months ago | (#46477517)

FISA claims it's to hold for court purposes, but the NSA can still search this data while they hold it.

I would think that holding this data:

  • works against the NSA, as its surveillance utility decreases as a function of time,
  • works for the litigants, as long as it contains evidence against the defendants usable within the statute of limitations for any wrongdoing it reveals.

Re:Handy (1)

JazzHarper (745403) | about 8 months ago | (#46478687)

You are correct on both points. Apparently no one else read past the headline.

Re:Handy (4, Informative)

mcl630 (1839996) | about 8 months ago | (#46477823)

From TFA:

The data preserved beyond five years cannot be accessed by NSA intelligence analysts for any purpose, and can only be accessed by technical personnel for ensuring continued compliance with the government's preservation obligations, Judge Walton wrote in his revised order.

So no, they can't search it, at least not without running afoul of the FISA court's order (not that that has stopped them before).

Re:Handy (2)

s.petry (762400) | about 8 months ago | (#46478437)

Well stated. If the judge told them to put it on an encrypted device where they didn't have the keys I'd feel much better.

not claims: district court DID order preservation (1)

raymorris (2726007) | about 8 months ago | (#46479515)

The original FISA ruling was "because the court you're being sued in has NOT ordered you to keep them, that suit isn't justification to keep them".

Then, the federal district court did in fact order them to preserve the evidence. That's a fact, not a claim.

So FISA, consistent with its earlier order, now said "because the district court has ordered you to keep them, you should now do so."

There's no "claims" to it, the federal district court entered an order in open court. That order was discussed here on Slashdot a few days ago. The FISA court has simply acknowledged the fact that the district court so ordered.

Cowards (0)

Anonymous Coward | about 8 months ago | (#46477085)

All of them

move along (1)

zlives (2009072) | about 8 months ago | (#46477207)

nothing to see here.

Really? (2)

the_skywise (189793) | about 8 months ago | (#46477217)

Couldn't we just keep metadata of the metadata records? Wouldn't that be evidence enough of criminal intent? No no... we have to keep ALL the actual records (and recordings I bet) for uh... the Presidential Libraries... Both of them (for now)...

Re:Really? (1)

Anonymous Coward | about 8 months ago | (#46477419)

I'll have some of what you're smoking. That paranoia sounds amazing

Re:Really? (1)

Anonymous Coward | about 8 months ago | (#46477771)

the government collects call data of every american citizen, and you think he's being paranoid?

lol.

Re:Really? (2, Informative)

Anonymous Coward | about 8 months ago | (#46478035)

Not only that, it has already been demonstrated that the data collected has been abused from it's intended purpose. Those crying "paranoid" are very strangely, now, the delusional ones.

Must be nice (0)

Anonymous Coward | about 8 months ago | (#46477351)

to have a court in your pocket that can divide by zero if you want it to.

In the words of the Professor Farnsworth (0)

Anonymous Coward | about 8 months ago | (#46477539)

I don't want to live on this planet anymore.

They Have No Idea What The Fuck They're Doing? (1)

dcollins (135727) | about 8 months ago | (#46477581)

Seriously.

Re:They Have No Idea What The Fuck They're Doing? (1)

Anonymous Coward | about 8 months ago | (#46477757)

From my understanding they actually do:

1) FISC stated that "No, NSA, you are not allowed to hold data longer than 5 years, just in case you get sued."
2) Other court says, "NSA, you must hold this data, until you are finished being sued."
3) FISC says, "Yes, since you are actually being sued, and were served with a 'No destruct' notice, you must comply with that notice."

Officially, it seems that FISC is saying that absent a valid 'no destruct' notice, the records must be purged if they are 5 years old or more.

Re:They Have No Idea What The Fuck They're Doing? (1)

NicBenjamin (2124018) | about 8 months ago | (#46479469)

Read the summary.

The FISA Court sided with you in ordering the data destroyed. But that really screws up the lawsuit against the NSA because if the data's destroyed it's trivial for the NSA to lie about how useful it was. You can't really prove that cell phone metadata wasn't a key factor in the capture of Criminal X if the metadata has all been deleted.

So the district court ordered the NSA to keep the data, and the FISA Court said that's okay as long as they don't look at it.

Re:They Have No Idea What The Fuck They're Doing? (1)

dcollins (135727) | about 8 months ago | (#46480317)

You miss my point. It's the exact same argument that the NSA put forth a week ago that FISA shot down at that time. If a lawsuit was determinative this week, then it should have been last week as well. The argument of why didn't change, yet FISA flip-flopped when it happened in practice.

Re:They Have No Idea What The Fuck They're Doing? (1)

NicBenjamin (2124018) | about 8 months ago | (#46488917)

You miss my point. It's the exact same argument that the NSA put forth a week ago that FISA shot down at that time. If a lawsuit was determinative this week, then it should have been last week as well. The argument of why didn't change, yet FISA flip-flopped when it happened in practice.

The difference is that instead of government lawyers making the point, it was their fellow judges. When a lawyer tells you you really should do what his clients always wanted because that'll hurt said clients you're not supposed to believe him.

When a Judge says the same thing you're legally required to believe him.

Re:They Have No Idea What The Fuck They're Doing? (1)

dcollins (135727) | about 8 months ago | (#46521895)

"When a Judge says the same thing you're legally required to believe him."

Unless they're a higher-level judge. Like the FISA court with its earlier ruling..

Whut? (0)

Anonymous Coward | about 8 months ago | (#46478121)

We need to save the phone records as evidence in a complaint that the phone records were being saved?

Yo, Dawg!... (1)

Anonymous Coward | about 8 months ago | (#46478557)

We herd u like NSA data retention, so we put NSA data in ur retention so u can retention while u NSA data.

Werd

From:

Ur homeys keepin' it realz, watchin' out for our homeys in the TLAs what help keep us in control and rope-a-doping the US public to think they free, livin large @ All 3 branches of the Federal government.

Here's an idea... (1)

ozzy85 (1427363) | about 8 months ago | (#46479323)

A kickstarter to bribe these judges more than the NSA such that they actually protect the constitution!!

Keeping the data (0)

Anonymous Coward | about 8 months ago | (#46480093)

So now they are keeping the data longer since they are getting sued for keeping too much data.

Invalid (0)

Anonymous Coward | about 8 months ago | (#46482629)

FISA is not a valid court and so has no authority. The data will be destroyed.

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