Imagine a system that works as follows. You can have people assassinated. In order to do so, however, you need to fill in a hundred-page form with exhaustive details of your personal finances, your medical history, and the contents of your computers' hard drives; and then you need to play six sets of tennis against a strong player and win at least two; and then you need to play a 7-game chess match against a holder of FIDE's International Master title, and win at least two. Oh, and then there's a fee of $100k. Once you've done this, your application takes six months to be processed. Every week during this time, you get a callback and are asked intrusive personal questions about your sex life, your religion, and how you have voted in past elections. And then, at the end of the six months, the person named on the form gets assassinated by government agents.
Can we agree that (1) this would be a "massive bureaucratic battle", and (2) the bar would be "incredibly high" ... but (3) this shouldn't reassure us much, because jumping through the bureaucratic hoops and meeting those difficult criteria doesn't actually constitute good reason for having your target assassinated?
Your comments about the FISA court seem a little like this. Let's stipulate that getting approval is a tiresome process, and that there are difficult criteria to meet. That doesn't in any way guarantee that it only happens in cases where it's actually a good idea.
That's a terribly analogy. The bureacracy isn't there as just a speedbump. It's there to make sure you don't waste time on cases doomed to fail. Secondly, surveillance is an essential tool in fighting crime. Assassinations are not.
> "Secondly, surveillance is an essential tool in fighting crime."
This is a very dubious assertion. I'm not aware of any evidence that mass surveillance deters or prevents crime at all, much less is "an essential tool" for doing so.
But even if one, for the sake of argument, concedes the point that mass surveillance does significantly deter or prevent crime, you still have a system set up where the costs of that surveillance (loss of privacy, loss of accountability for abuses of power, introducing/secretly discovering backdoors, etc) are borne by the least powerful--ordinary citizens--while the benefits of mass surveillance (concentration of power, ability to bribe/extort/intimidate rivals, being seen as "doing something" about terrorism, etc) accrue only to those who are already powerful.
That is the real problem with mass surveillance. It creates a positive feedback loop that only exacerbates existing power imbalances, inevitably leading to corruption and capricious injustices by those who are most able to get away with it. Having a speedbump on the road to that inevitable destination, even a big one, is not much of a consolation if the heading is still the same.
Exactly that, as long as you have those who have access and those that don't you have something to be exploited. There you move towards a great divided in power, towards total lack of privacy or you don't gather the data. I think the later is actually the least likely. There are a lot of really powerful things you can do with good data, that seems worthwhile. The issue is then exploitation of that knowledge. For sure advantage will be had by someone, question is extent of imbalance and lack of privacy.
> I'm not aware of any evidence that mass surveillance deters or prevents crime at all, much less is "an essential tool" for doing so.
Oh, you think you are sneaky. This is so carefully worded. You explicitly twist the words of the GP, where they use "fighting crime" you turn that to meaning "deters of prevents crime." They mention "surveillance", and you turn that into "mass surveillance."
That's like me saying "I don't see how fingerprint analysis helps to deter or prevent crimes." Oh sure, it helps capture people after the fact, but I don't think there has ever been evidence show that fingerprint analysis has actually deterred or prevented crime.
So, while you can stand their, smug with your "technically correct" remark, the reality is "surveillance is an essential tool in fighting crime" has been proven to be correct time and time again, and has been instrumental in handing convictions for a long, long time.
However, you also don't provide much proof that "surveillance is an essential tool in fighting crime". Its efficiency to deter/prevent crime, or even to help catch offenders a posteriori, is also highly debatable (I guess it's more likely to be helpful for the latter, but that still makes the definition of "fighting crime" rather vague as well).
In the case of digital surveillance, I'd be extremely cautious about its actual efficiency. And that something is legal and efficient doesn't necessarily warrant that its ethical and should be used.
There is another way in which the analogy is flawed. The analogy states that after the six months, when the forms have been reviewed or approved, the target dies.
If this is to be analogous to bulk surveillance, the assassination agency would have to discover that the target had actually died in an accident eight months ago, just before the forms were submitted, and they would simply retroactively dismiss any wrongful death or homicide cases that may be ongoing.
The panopticon operators are asking forgiveness rather than permission, and only for those specific instances where the surveillance needs to be laundered from illegally gathered to warrant-authorized.
As such, I have no faith that the spying has ever stopped, or slowed, or even decreased its rate of growth. The steep bureaucratic hurdle does nothing to prevent it. The most it does is limit the amount of information that can be moved from the shadows into the sunshine via that method, and strongly encourages less costly alternatives to actually honoring the law. One such workaround is "parallel construction", where the illegal spying is converted into an anonymous tip to another "innocent" agency of the state, who then gets reasonable suspicion on a pretext charge--like failure to signal a lane change, plus the invocation of the magical ritual phrase "I smell marijuana"--and then the road-patrol cop somehow finds 20 kilograms of cocaine in the trunk.
Fixing or eliminating the FISA court won't stop the behavior. Only actual accountability for the people actually doing the dirty deeds will help.
The mission of FISA is explicitly not for fighting crime! It is for foreign intelligence collection only. It's also ill-suited for the purpose.
State and federal law enforcement can request a warrant. The turnaround time is far lower, the search methods more diverse, and the evidence gathered can be used in court.
So let me get this straight, to prevent agents from wasting time on cases that are doomed to fail, they make sure that agents waste large amounts of time going through bureaucracy for legitimate cases that will probably win?
That's a straw man argument. Andrew said that the reason the court doesn't decline a lot of requests warrants is because the cases that are not "airtight" never make it to the court. I think this is a fair response to the original comment analyzing the court's "historical performance" as being too lax.
Good question. I don't know if we should, although I've heard similar things said about requests to non-FISA judges, as well. It makes sense to me that if investigators' careers involve learning to cross their t's and dot their i's before they go to a judge requesting an intercept, and they spend years doing it, they get good at it.
Separately from belief, which is somewhat subjective (i.e. it involves more inputs than is practical to list in a discussion), it's important to realize that on a logical level, there are at least two interpretations to a 99% acceptance rate: (1) the bar is really low and (2) there are pre-filters. The certainty with which I often hear (1) being declared or implied seems to miss this point.
You make good points to ponder. In this sort of situation I find that looking at the outcome or the end result provides more information towards the intent or competency of the subject questioned. In my opinion the only real reason for a FISA court existence is to prevent civil laws from being broken.
Has the FISA court overstepped the constitution in favor of securing our liberty? Has the FISA court been successful in securing privacy for those they serve?
Can we agree that (1) this would be a "massive bureaucratic battle", and (2) the bar would be "incredibly high" ... but (3) this shouldn't reassure us much, because jumping through the bureaucratic hoops and meeting those difficult criteria doesn't actually constitute good reason for having your target assassinated?
Your comments about the FISA court seem a little like this. Let's stipulate that getting approval is a tiresome process, and that there are difficult criteria to meet. That doesn't in any way guarantee that it only happens in cases where it's actually a good idea.