How the FISA Court Undermines Trust

This is a succinct explanation of how the secrecy of the FISA court undermines trust.

Surveillance types make a distinction between secrecy of laws, secrecy of procedures and secrecy of operations. The expectation is that the laws that empower or limit the government’s surveillance powers are always public. The programs built atop those laws are often secret. And the individual operations are almost always secret. As long as the public knows about and agreed to the law, the thinking goes, it’s okay for the government to build a secret surveillance architecture atop it.

But the FISA court is, in effect, breaking the first link in that chain. The public no longer knows about the law itself, and most of Congress may not know, either. The courts have remade the law, but they’ve done so secretly, without public comment or review.

Reminds me of the two types of secrecy I wrote about last month.

Tags: courts, FISA, national security policy, NSA, phones, privacy, secrecy, surveillance, trust

Posted on July 23, 2013 at 1:00 PM • 16 Comments

Comments

Peter Andersson • July 23, 2013 1:31 PM

Once upon a time there was a president in the US who said:

The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it…

I guess the times they are a changing, so to speak.

http://www.techdirt.com/articles/20101206/01134912143/jfk-secrecy-censorship.shtml

NobodySpecial • July 23, 2013 2:26 PM

But JFK was president in the cold war – he didn’t have to deal with the very real threat of terrorist complaining about drinking water (http://www.tennessean.com/article/20130620/NEWS11/306200108?gcheck=1)

Clive Robinson • July 23, 2013 2:33 PM

Hmm, this thread is very intertwined with the earlier thread about Marc Rotenburg going to SCOTUS and the second article of the back and forth comments in US Today.

http://www.usatoday.com/article/news/2567025

Written by Steven Bradbury who was working for the GWB administration, it falsly tries to claim the current FISA Court behaviour is a “Good Balance”.

I passed comment on it in the previous thread,

http://www.schneier.com/blog/archives/2013/07/marc_rotenberg_2.html#c1584639

In essence the current and previous administrations are singing from the same song sheet that “all’s well in the garden, provided we don’t bite the forbiden fruit” by questioning what is done “in our name”…

Why do I get a film clip spring to mind of a military court with a commander shouting at the prosecutor “You Can’t handel the truth!” when seaking to cover up malfiesence…

David Sucher • July 23, 2013 4:04 PM

General question because I am not sure where to ask:

What has Snowden done which has attracted more attention, vitriol, wild remarks from high-level politicians etc etc than have other whistleblowers, such as Binney? At least so it appears.

Is there a different reaction? More attention to NSA, FISA, security/privavcy issues etc etc now than in past few years? Is it that Snowden has actually done anything? Or is just that the accumulated disclosure starts to tip public attention? And why? If it is true and not just my observation.

Clive Robinson • July 23, 2013 5:33 PM

@ David Sucher,

What has Snowden done which has attracted more attention, vitriol, wild remarks from high-level politicians etc etc than have other whistleblowers such as Binney? At least so it appears.

It is doubtfull that Mr Snowden has done much in the way of actually committing a crime. However what he has done is in effect embarrass not just the administration but the Presedent as well, and has shown them to be both incompetent and impotent.

As far as I can tell nothing that Ed Snowden has so far released is not actually known, calculated or surmised from available evidence. The important thing is that it has turned what was a reasonable suspicion in a few peoples minds, into incriminating evidence in many if not most US (and WASP nation) citizens who have read the articles.

Barak Obama was revealed to be a control freak about his image at the begining of his first term with his requirments for potential candidates for administration positions.

I suspect that Obama is very concerned about how history will view his Presidency as “The First Black President”, thus being revealed as incompetent, impotent and a hypocrit is not what he wants. Already many view Obama as worse than Nixon and as such these revelations are in effect making him look so bad that he will probably be remembered as “the president who turned the US into a Police State” thus eclipsing the actions of the preceading G.W.Bush administration.

Right now the longer Ed Snowden remains out of US hands the more incompetent and impotent the US President and his administration will apear to US citizens. But to the citizens of other countries Obama and his administration have been held up to be compleate hypocrits as well. Worse for Obama, he is known to have made comment on other national leaders as “light weights” and other derogatory terms, well he has been “hoist by his own petard” and he is now no doubt aware he is considered at best a lame duck on the world stage not just by other national leaders but by many of the citizens of those nations as well.

As Obama’s Presidency draws to a close, will William Shakespears opening words for Mark Antony come to haunt him,

Friends Romans Countrymen, lend me your ears, I come to bury Ceaser not to praise him. The evil that men do lives after them, the good is oft interened with their bones, so let it be with Ceaser.

wkwillis • July 23, 2013 7:35 PM

The US establishment hates Snowden and will never give up on putting him in jail. He embarrassed them in from of their voters by telling them from a position of authority/trust that the government really does have the ability to crack down on immigration, tax evasion, and voter fraud by traffic analysis of phone calls.
Slander, perjury on indictments, perjured testimony, selective enforcement of littering laws, whatever it takes to punish him.
The good news for Snowden is that the establishment is about to lose their control of the government due to running out of money.
I figure that Snowden’s future includes a medal and a pension, probably a generals pension since that is established by act of Congress, not the usual procedure.

Dirk Praet • July 23, 2013 8:05 PM

In essence, how can any sane person vest any trust in secret courts issuing secret orders under secret interpretations of the law, and whereby those affected by said orders can’t even speak about them ?

Any which way you turn it, that’s a complete travesty of justice and democracy, and a trademark of a police state. Full stop. It’s the kind of stuff that should instill much more fear in people than that for the odd (and mostly incompetent) terrorist.

Rich • July 23, 2013 8:51 PM

Since it always hears one side on every case it should always be referred to as “the FISA hemi-court”

Nargunomics • July 23, 2013 9:07 PM

So on one hand we have a Star Chamber passing down secret rulings that undermine the rule of law, on the other hand we have examples of ordinary courts showing signs of being cosy with large corporations.

http://www.groklaw.net/article.php?story=20130710170719460

http://www.groklaw.net/article.php?story=20130711223046732

The Administrations’s undermining confidence in the independence of the law. That is, the law in the US now resembles that which brought Indonesia to the edge of violent collapse in the late 1990s.

The Chinese aren’t dumb. How long will they continue to buy Federal bonds to prop up a failing regime?

MissRonda • July 23, 2013 9:16 PM

A retired judge of the Foreign Intelligence Surveillance Court, James Robertson, argued for several changes including adding a privacy advocate to the court’s closed hearings to allow an adversarial process.

TraitorPatriot • July 23, 2013 9:44 PM

The FISA courts are a complete sham. These courts were designed from the very beginning as a court system that would let the government do whatever it wanted. It’s a court system where the government almost always wins.

jfw • July 24, 2013 6:14 AM

I’ve been working for a while on an arguable tamper-proof system.
It’s designed to following closely the ethical and judicial ideas which form the foundation of at least western democracies. (To be sure it’s never becomes illegal here.) Program code is therein handled as if it was a contract. Facts in the sense of “seen and understood to be true by the legal system” are established by execution of the same program at various hosts. Those act akin to a witness. The common understanding available to most peers is taken then to be true. There is an obvious recursion: the code itself has to be established as a common known fact before it can be executed (to arrive by a common checksum over an transaction). This recursion terminates, once it finds the “first contract” – the technical equivalent of a constitution.

That’s how it works. We can create secret realms at top as well as public registries (a.k.a version control systems with full audit trail down to the hashsum) easily.

For a while we tried: we had a config parameter, which would allow to execute secret or time-variant code. Forget it! Impossible to secure without an omni-privileged administration. And even then: even this power can not proof to itself that the system has not been tampered with. We removed the switch.

everyday.guy • July 24, 2013 7:25 AM

The court system they created is a complete mockery of everything that is good in the US legal system.

There is no difference between this court system and the corrupt systems the old British government came up with, which the constitution was directed against.

There is no difference between this court system and what you see in countries that have no humans rights.

It is, in fact, the same thing.

Very devilish work.

jon • July 24, 2013 11:49 AM

I think we can trust the FISA Court to sign off on anything.

chris • July 25, 2013 8:16 AM

Reading this I can’t help thinking of Kafka’s “The Trial” where a man is unexpectedly arrested by two unidentified agents from an unspecified agency for an unspecified crime. A prescient and relevant tale in respect to the ‘terrorism’ perpetrated by modern governmental bureaucracies against their citizens.

haha • July 30, 2013 3:25 PM

Its also hilarious to contrast the supposedly inviolate rule that “ignorance of the law is no excuse” with the secret interpretations of the law by secret courts.

When there’s no way to confirm what the government thinks the law means, and no way to challenge the constitutionality of the law (due to technicalities ensure that almost nobody has standing to challenge it even though almost everybody is affected by it)… then “rule of law” is obviously completely and totally dead. These ass-clowns have helped to hasten the demise of ordinary citizens’ respect for the rule of law by effectively refusing to be bound by it themselves.

Schneier on Security

How the FISA Court Undermines Trust

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