[twoodfin]

If you’re hoping the Supreme Court, and in particular this Supreme Court, is going to agree that the Constitution requires the executive branch get a warrant before spying on cross-border communication with a non-citizen, you’re going to be disappointed.

FISA is Congress exercising the only authority it has here, which is oversight & regulation. You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing.

[soraminazuki]

It's baffling to many people how FISA is even a thing. To a layperson, the Fourth Amendment leaves no room for a rubber stamp court authorizing mass surveillance. And no one except politicians and bureaucrats are buying the argument that this is somehow targeted surveillance.

Also, free nations should have higher standards than "Not a citizen? Too bad, anything goes."

[twoodfin]

This is not complicated: If you run a telegraph wire between El Paso and Juárez, the executive has the Constitutional authority to tap it to intercept communication to or from a non-citizen not in the United States, warrant-free.

Congress can regulate the process that must be followed, the documentation that must be made, even require judicial review at the program level to ensure it doesn’t also record traffic that is Constitutionally protected. That’s what FISA is.

But it can’t ban that tapping, nor can it require the executive to get a warrant for a particular otherwise Constitutional intercept from an Article 3 court.

Which part of this do you think is incorrect?

[soraminazuki]

Where do I even start? Let's first reiterate that even when it's technically legal to screw over non-citizens, it doesn't make it right. That's not the standard expected of a free nation.

But let's ignore that for a moment and move on to the next point. Your example is still hoovering up communications from citizens who are supposed to be protected by due process of law. En masse. How does this not run afoul of the law?

The problem is compounded by the fact that the internet blurs geographical borders. Wholly domestic communications can and does end up crossing borders. Also, I'd bet a large part of our communications aren't even between people. The majority of the traffic likely are sent to or from computer programs. They happen without most people even realizing it, but contains highly personal information. The simple telegraph analogy doesn't translate well to the internet.

What's more, there's currently no meaningful system in place to prevent abuse. And no, a rubber stamp court authorizing dragnet surveillance isn't it.

[twoodfin]

OK, you want FISA to be stricter. But way up thread, someone made the point that it’s FISA itself that puts any meaningful balancing constraints at all on the Constitutional power of the executive. This includes the FISA court—made up of real, lifetime-tenured federal judges of the same robes you would like approving warrants—that is there by law to be watching out for just your parade of horribles.

The poster was roundly criticized for being correct.

[soraminazuki]

No, FISA should not be a thing. Wiretap warrants should be reasonably scoped and acquired on an individual basis. There shouldn't be a secret court issuing do-whatever-you-want warrants.

[twoodfin]

To get that you have two choices: Do your best to persuade your fellow citizens to elect a President who will choose to forego this part of his Constitutional powers—or get a Constitutional amendment passed.

What I keep trying to explain is that this FISA vote can’t address your concerns one way or the other. If you disagree, I wish you’d explain how.

[13of40]

Not to nitpick too hard here, but you can't know whether I'm talking to a US citizen without first eavesdropping on the conversation.

[soraminazuki]

That's actually a great point. After the Snowden revelations, politicians justified some of the surveillance programs by claiming they were only looking at the metadata, not the content, as if that made any difference. So that's one of the excuses they use to create the appearance of legality.

https://www.npr.org/2013/06/21/193578367/calling-it-metadata...

[Kamq]

> This is not complicated: If you run a telegraph wire between El Paso and Juárez, the executive has the Constitutional authority to tap it to intercept communication to or from a non-citizen not in the United States, warrant-free.

That's not correct at all. It would only fall under federal overview if it's commercial (Article 1 section 8 clause 3 of the constitution gives congress the right to regulate commerce with foreign nations).

The Feds don't just get to do anything they want by default. All powers that aren't specifically given to the feds are defaulted to either the states or the people.

[twoodfin]

This is, flatly, nonsense. For example: Executive agencies conduct warrantless border searches unrelated to commerce around the clock.

[Kamq]

It's dumb, but Wickard v. Filburn makes basically anything involving physical goods "commerce". I'm sure there's a ruling somewhere that says something like: people entering the country subtly alter the restaurant market (not really any dumber than the Wickard v. Filburn rationale), and therefore the feds have a right to search everything.

I think it would be a lot harder to do that with speech though. Maybe you could argue that the telegraph line itself impacts international copper markets or something, but there are non-tangible based communication methods.

[jrochkind1]

I don't understand the argument that it couldn't require a warrant. The argument is simply that the executive branch has a constitutional right to wiretap without a warrant, unless the the constitution forbids it?

There is some judicial oversight in the FISA court of course. What's the argument for why congress can legislate that, but not a more typical warrant?

[twoodfin]

For the same reason Congress can’t require the President to get the approval of the Supreme Court before he vetoes a bill: Our Constitution gives powers to the executive that cannot be usurped or overruled by Congress, notably in this context to conduct the national defense and foreign affairs.

The FISA court exists to ensure that the executive is not operating outside his Constitutional authority, not as a gatekeeper for use of that authority at all in any instance.

[AnthonyMouse]

> Our Constitution gives powers to the executive that cannot be usurped or overruled by Congress, notably in this context to conduct the national defense and foreign affairs.

This is not true. The constitution explicitly reserves the power to declare war or enact treaties to Congress. Neither the military nor federal law enforcement can spend a single dime, or even exist, without Congressional approval. If the budget allocates no money to mass surveillance, no money is available to conduct mass surveillance.

[twoodfin]

Yes, Congress can defund the FBI, NSA, DIA, … or simply forbid them from spending money on foreign surveillance.

What they can’t do is allow them to spend money on foreign surveillance, but only if an Article 3 court gives them a warrant.

[AnthonyMouse]

> You could argue FISA should be stricter, but it can’t extend the Constitutional reach of the Fourth Amendment, nor can it contract it the way many in this thread believe it’s somehow doing.

Congress can't pass a law violating the Fourth Amendment. They can certainly pass a law constraining the executive from doing something that is otherwise constitutional, if the courts are reading the Fourth Amendment too narrowly.

They could also straightforwardly require the FISA court to publish its opinions, or have the same cases heard in ordinary federal courts with public accountability for the decisions. There is nothing in the constitution requiring secret courts.