Govt. judge tells Yahoo if Americans don't know they're being spied on, there's no harm
Details forced from the government's Top Secret file folders by FISA Judge Reggie Walton) are only emerging now. A total of 1,500 pages will eventually make their way into the public domain once redactions have been applied. The most recent release is a transcript of oral arguments presented by Yahoo's counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).
The oral arguments presented by Zwillinger and Garre reveal a frightening new govt. argument.
Zwillinger opens up the arguments by questioning the govt’s methods of determining who should be placed under surveillance.
Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name gets on this list; and all we know about it from page 47 of their brief, is that an intelligence analyst puts it on the list.
“We are being asked and compelled to participate in surveillance we believe violates the constitution of the United States,” Zwillinger said.
The government's response begins by denying that US persons' data is retained. "There is no database," says Garre, before having to admit a few sentences later, that incidental data is retained (and distributed) if there is evidence of other, non-national-security-related criminal activity.
Garre then goes on to explain why the govt. feels it should have warrantless access to US persons' communications, routed through and stored at US servers. He refers to satellite communications -- something in use when FISA was enacted in 1978. Garre says that even though these communications may have been captured by domestic satellite receivers, it's the point of origin that matters. Outside the US? No warrant needed, even for US persons. Likewise for emails stored on Yahoo servers.
MR. GARRE: I don't think anybody would argue that the Fourth Amendment would apply to that communication, even though the email communications go to account in Sunnyvale, California. I haven't understood Yahoo to argue that the Fourth Amendment would be implicated by that.
And, similarly, the Fourth Amendment isn't --
JUSTICE SELYA: You mean the interception there by you and Yahoo would not implicate the Fourth Amendment?
MR. GARRE: That Certainly would be the government's view.
Garre also blames the large number of dead accounts in the court orders on Yahoo's refusal to immediately comply, while simultaneously spinning it as the unavoidable collateral damage of "efficient" surveillance.
So the fact that accounts have been closed is not significant, and that's particularly true given that the large number of email accounts here is reflected by the fact that Yahoo is in noncompliance for several months. So, if you go back several months, it's not surprising that several accounts have been closed.
But all of this pales in light of the words of Judge Morris S. Arnold. If they sound familiar, they are. This was the argument made, and roundly ridiculed, by Congressman Mike Rodgers, chair of the House Intelligence Committee.
Vladeck: But who would be complaining?
Rogers: Somebody who’s privacy was violated. You can’t have your privacy violated if you don’t know your privacy is violated.
Up to now, this lunacy was attributed to a politician, who is allowed under our system of democracy to be as stupid as his voters allow him to be. As it turns out, Rodgers didn’t come up with this rationalization by himself. From a twit by Trevor Timm:
By the same logic, all sorts of secret surveillance would be OK -- like watching your neighbor's wife undress through the window, or placing a hidden camera in the restroom -- as long as the surveilled party is never made aware of it. If you don't know it's happening, then there's nothing wrong with it. Right?
With these words, we not only lose, but we have no hope. DHS/police, the NSA etc., can spy on us and we don't have a right to know.
Jesselyn Radack points out the problem with FISA: 'They hear only the government's side.'
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http://blog.simplejustice.us/2014/11/20/judge-buzz-arnold-no-harm-no-foul-no-chance/#more-22814