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Court Order told Yahoo that Prism does not require a warrant [pdf]

202 points by sampsonjs 13y ago

sampsonjs 13y ago
'Yonatan Zunger, the chief architect of Google+, wrote in a Google+ post today that: "I can tell you that the only way in which Google reveals information about users are when we receive lawful, specific orders about individuals -- things like search warrants."' From the court order: "We add, moreover, that there is a high degree of probability that requiring a warrant wound hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake." Cough
- justinschuh 13y ago
  I think you've misunderstood what you read. Under US law an FAA order carries the same compliance burden as a warrant. And, just like a warrant, the party served can push back on an overly broad or unjustified order. So, there's nothing untrue or even remotely misleading in the statement that "the only way in which Google reveals information about users are when we receive lawful, specific orders about individuals -- things like search warrants."
  - lawnchair_larry 13y ago
    You should read the second half of his paste. Maybe disclose bias too.
    - mpyne 13y ago
      We all have bias. Is he wrong or not is the question.
    - justinschuh 13y ago
      Did you read the surrounding context of that quote in the original document? This comment implies you did not.
- prawks 13y ago
  "things like search warrants", where "things" may be, for example, a FISA order.
mtgx 13y ago
The Protect America Act still exists? Why isn't there more discussion about it?
- justinschuh 13y ago
  No it doesn't. Even this ruling clearly notes that the PAA had a one year sunset and expired in 2008.
  - declan 13y ago
    The PAA does not exist. But similar language appears in the FISA Amendments Act of 2008, which Congress renewed most recently in December. Bipartisan enthusiasm, with approximately three-quarters of senators voting for it after safely defeating the pro-privacy amendments: http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR5949 http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR5949:
    - justinschuh 13y ago
      I don't see how you could think the PAA and FAA have similar language. The PAA was a pretty ugly bill, and significantly loosened both FISA and USSID 18 restrictions against collection on US persons. Whereas the FAA actually reinstated FISA order requirements and closed the third-party carrier loophole. So, the FAA was an unambiguous win for privacy over the then-expiring PAA, and more importantly it was an improvement over the pre PAA version of FISA. Before the FAA passed, there were no requirements or oversight governing collection of non US persons communicating over a US carrier. And in fact, existing legal precedent does not treat the carrier as party to the communication, so collection under those circumstances was likely legal. That's exactly the loophole the previous administration exploited to compel third-party compliance in foreign intelligence collection without oversight.
      - declan 13y ago
        I didn't think it was controversial to claim that the PAA and FAA have similar language. Here's one section from both bills (Sec. 702 in the FAA and 105B in the PAA) authorizing warrantless surveillance: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01927 http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01927: Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States... http://thomas.loc.gov/cgi-bin/bdquery/z?d110:H.R.6304 http://thomas.loc.gov/cgi-bin/bdquery/z?d110:H.R.6304: Notwithstanding any other provision of law... the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States... I didn't say they were identical, just that they were similar. Though each does use the identical language about limits on targeting "persons reasonably believed to be located outside the United States" -- and we found out from last week's leaks how far that language can be stretched.
justinschuh 13y ago
The petitioner is redacted, so why does the title presume it to be Yahoo? Did I miss something? Also, PRISM is an acronym for Planning Tool for Resource Integration, Synchronization, and Management. Could people please stop abusing it as a term for whatever random scary thing they want to believe the NSA is doing?
- declan 13y ago
  We learned this month that the company was Yahoo. See: http://www.nytimes.com/2013/06/14/technology/secret-court-ruling-put-tech-companies-in-data-bind.html?pagewanted=all&_r=0 http://www.nytimes.com/2013/06/14/technology/secret-court-ru...
  - justinschuh 13y ago
    Thanks, that's certainly useful context. It's a shame the link is a bare PDF, without that background.
drivebyacct2 13y ago
Wait, are there actually people in the US who still assume that there someone has to get a warrant to investigate them under the auspices of terrorism or National Security? I assumed this was a more or less accepted fact by now. They take everything they want off the wire anyway; the best case scenario is that they have FISA rubber stamp warrants for the times where they "need a warrant". Do we really care about specific instances of uses of PRISM? I mean, in an honest way I'm curious :: is there really any benefit if we could definitely prove that PRISM was used without a warrant? Is it worse than any of the other things that have been disclosed or leaked since originally finding out about PRISM? I don't think so, but I was screaming bloody murder about NSLs in 2006, soooo......
- mtgx 13y ago
  The use of FISA "warrants" (misnomer, really) is highly questionable as is, especially when they're just rubber-stamped anyway, but if we can prove that most of the time they don't even bother to use those "warrants", then we can at least take steps to sue them over it and try to declare it unconstitutional, and hopefully get Congress to not only repeal many of the current laws allowing them to do with this their secret interpretations of those laws, but also create other laws that put a lot of restrictions and oversight in place.
  - justinschuh 13y ago
    I don't think there's a single factually accurate statement in your comment. A FISA order really is a warrant in the legal sense, so it's not a misnomer. There's no substantiated evidence that the government is failing to comply with its legal obligations under FISA and other relevant laws here. The Supreme court has consistently upheld that constitutional protections do not apply to non US persons. The general trend since roughly 2008 has actually been increased oversight and scaling back of 9/11 era expansion of surveillance powers.
    - drivebyacct2 13y ago
      >I don't think there's a single factually accurate statement in your comment. A FISA order really is a warrant in the legal sense, so it's not a misnomer. There's no substantiated evidence that the government is failing to comply with its legal obligations under FISA and other relevant laws here. Er, um, no. FISA warrants and courts are different than regular warrants and courts for a very good reason. Most of them are issued post de-facto and as mtgx and I have pointed out, are literally rubber stamped. ZERO were declined last year. I'd love a citation for the last sentence of your post. I'll work on background info on FISA warrants. Like I said, wish I had my debate evidence I cut years ago. Rather ironically, it's actually remarkably hard to refind some of that evidence 10 years later. Google loves to emphasize more recent publications. A FISA warrant is as much a warrant as an FBI agent wiping their ass on a piece of paper and calling it a National Security Letter makes it a "legal warrant". (Yes, field FBI agents can issue them, and they're issued in the tens of thousands every single year, AND a single letter can apply to a person, team, family, or entire workplace.) You might call it "legal" in that a law passed by Congress with secret interpretations and special addenedums tells them they can... but yeah, I'm going to keep on calling FISA warrants and NSLs used on US Citizens what it is: unconstitutional and thus practically, illegal.
mehwoot 13y ago
Because these are FISA requests for individuals "reasonably suspected to be residing outside the U.S.". Those have never required warrants. Before FISA existed they just did it to whomever they pleased; now it requires a FISA request which is not the same thing as a warrant. Nowhere in that document does it say anything about not needing a warrant to get information on U.S. citizens residing in the U.S. What it does actually say is For these reasons, we hold that a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. I.e. a FISA request.
- gcb0 13y ago
  Keyword is "reasonably" believed to be located outside... So, one access to a external server? Visiting overseas?
- justinschuh 13y ago
  A few points. A FISA order really is a warrant, and the NSA needs one to collect on a US person (ie. US citizen anywhere or anyone on US soil). Before 9/11, FISA warrants were also used to compel US companies to comply with collection against non US persons for which they were the carrier. At some point after 9/11 the Bush administration realized the law could be reasonably interpreted as not strictly requiring this, so they stopped using FISA for this purpose. That was the heart of the warrantless wiretapping controversy, and the primary goal of the FISA Amendments Act was to add requirements and oversight for these situations.
  - lawnchair_larry 13y ago
    False, see Verizon order
    - justinschuh 13y ago
      Your response is in no way related to my comment. What point were you trying to make?
magoon 13y ago
Can anybody decode this jibberish? Is it any wonder our rights are being violated by lawyers, lawyers-turned-lawmakers, and lawyers-turned-judges?
koops 13y ago
"...the petition requires us to weigh the nation's security interests against the Fourth Amendment privacy interests of United States persons." The text Fourth Amendment doesn't narrow itself to "United States Persons". It says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
- fsckin 13y ago
  Why do you think 'the people' in the Fourth Amendment is not a reference to the same "We 'the people' of the United States" in the Constitution?
Andrew_Quentin 13y ago
It is so strange to see a judgment reference a previous case as Re Sealed Case. It feels like the judge is stating: The authority for this principle can be found in Black Box. It may be justified for civil cases to be held in secret. After all, civil cases can be resolved by mediation, arbitration, even just negotiation. When the matter concerns a petition against the government however, or against a law, there is no reason for the case to be sealed or secret. Whats next, the congress voted in a closed secret session a new secret law?
consonants 13y ago
The NSA has specifically stated that they have the ability to preliminarily gather data through PRISM a week before going to FISC for a warrant. What is presented to the judge as evidence is usually that very collected data.

202 points by sampsonjs 13y ago

'Yonatan Zunger, the chief architect of Google+, wrote in a Google+ post today that: "I can tell you that the only way in which Google reveals information about users are when we receive lawful, specific orders about individuals -- things like search warrants."' From the court order: "We add, moreover, that there is a high degree of probability that requiring a warrant wound hinder the government's ability to collect time-sensitive information and, thus, would impede the vital national security interests that are at stake." Cough

justinschuh 13y ago
I think you've misunderstood what you read. Under US law an FAA order carries the same compliance burden as a warrant. And, just like a warrant, the party served can push back on an overly broad or unjustified order. So, there's nothing untrue or even remotely misleading in the statement that "the only way in which Google reveals information about users are when we receive lawful, specific orders about individuals -- things like search warrants."
- lawnchair_larry 13y ago
  You should read the second half of his paste. Maybe disclose bias too.
  - mpyne 13y ago
    We all have bias. Is he wrong or not is the question.
  - justinschuh 13y ago
    Did you read the surrounding context of that quote in the original document? This comment implies you did not.
prawks 13y ago
"things like search warrants", where "things" may be, for example, a FISA order.

mtgx 13y ago

The Protect America Act still exists? Why isn't there more discussion about it?

justinschuh 13y ago
No it doesn't. Even this ruling clearly notes that the PAA had a one year sunset and expired in 2008.
- declan 13y ago
  The PAA does not exist. But similar language appears in the FISA Amendments Act of 2008, which Congress renewed most recently in December. Bipartisan enthusiasm, with approximately three-quarters of senators voting for it after safely defeating the pro-privacy amendments: http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR5949 http://thomas.loc.gov/cgi-bin/bdquery/z?d112:HR5949:
  - justinschuh 13y ago
    I don't see how you could think the PAA and FAA have similar language. The PAA was a pretty ugly bill, and significantly loosened both FISA and USSID 18 restrictions against collection on US persons. Whereas the FAA actually reinstated FISA order requirements and closed the third-party carrier loophole. So, the FAA was an unambiguous win for privacy over the then-expiring PAA, and more importantly it was an improvement over the pre PAA version of FISA. Before the FAA passed, there were no requirements or oversight governing collection of non US persons communicating over a US carrier. And in fact, existing legal precedent does not treat the carrier as party to the communication, so collection under those circumstances was likely legal. That's exactly the loophole the previous administration exploited to compel third-party compliance in foreign intelligence collection without oversight.
    - declan 13y ago
      I didn't think it was controversial to claim that the PAA and FAA have similar language. Here's one section from both bills (Sec. 702 in the FAA and 105B in the PAA) authorizing warrantless surveillance: http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01927 http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01927: Notwithstanding any other law, the Director of National Intelligence and the Attorney General, may for periods of up to one year authorize the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States... http://thomas.loc.gov/cgi-bin/bdquery/z?d110:H.R.6304 http://thomas.loc.gov/cgi-bin/bdquery/z?d110:H.R.6304: Notwithstanding any other provision of law... the Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States... I didn't say they were identical, just that they were similar. Though each does use the identical language about limits on targeting "persons reasonably believed to be located outside the United States" -- and we found out from last week's leaks how far that language can be stretched.

justinschuh 13y ago

The petitioner is redacted, so why does the title presume it to be Yahoo? Did I miss something? Also, PRISM is an acronym for Planning Tool for Resource Integration, Synchronization, and Management. Could people please stop abusing it as a term for whatever random scary thing they want to believe the NSA is doing?

declan 13y ago
We learned this month that the company was Yahoo. See: http://www.nytimes.com/2013/06/14/technology/secret-court-ruling-put-tech-companies-in-data-bind.html?pagewanted=all&_r=0 http://www.nytimes.com/2013/06/14/technology/secret-court-ru...
- justinschuh 13y ago
  Thanks, that's certainly useful context. It's a shame the link is a bare PDF, without that background.

drivebyacct2 13y ago

Wait, are there actually people in the US who still assume that there someone has to get a warrant to investigate them under the auspices of terrorism or National Security? I assumed this was a more or less accepted fact by now. They take everything they want off the wire anyway; the best case scenario is that they have FISA rubber stamp warrants for the times where they "need a warrant". Do we really care about specific instances of uses of PRISM? I mean, in an honest way I'm curious :: is there really any benefit if we could definitely prove that PRISM was used without a warrant? Is it worse than any of the other things that have been disclosed or leaked since originally finding out about PRISM? I don't think so, but I was screaming bloody murder about NSLs in 2006, soooo......

mtgx 13y ago
The use of FISA "warrants" (misnomer, really) is highly questionable as is, especially when they're just rubber-stamped anyway, but if we can prove that most of the time they don't even bother to use those "warrants", then we can at least take steps to sue them over it and try to declare it unconstitutional, and hopefully get Congress to not only repeal many of the current laws allowing them to do with this their secret interpretations of those laws, but also create other laws that put a lot of restrictions and oversight in place.
- justinschuh 13y ago
  I don't think there's a single factually accurate statement in your comment. A FISA order really is a warrant in the legal sense, so it's not a misnomer. There's no substantiated evidence that the government is failing to comply with its legal obligations under FISA and other relevant laws here. The Supreme court has consistently upheld that constitutional protections do not apply to non US persons. The general trend since roughly 2008 has actually been increased oversight and scaling back of 9/11 era expansion of surveillance powers.
  - drivebyacct2 13y ago
    >I don't think there's a single factually accurate statement in your comment. A FISA order really is a warrant in the legal sense, so it's not a misnomer. There's no substantiated evidence that the government is failing to comply with its legal obligations under FISA and other relevant laws here. Er, um, no. FISA warrants and courts are different than regular warrants and courts for a very good reason. Most of them are issued post de-facto and as mtgx and I have pointed out, are literally rubber stamped. ZERO were declined last year. I'd love a citation for the last sentence of your post. I'll work on background info on FISA warrants. Like I said, wish I had my debate evidence I cut years ago. Rather ironically, it's actually remarkably hard to refind some of that evidence 10 years later. Google loves to emphasize more recent publications. A FISA warrant is as much a warrant as an FBI agent wiping their ass on a piece of paper and calling it a National Security Letter makes it a "legal warrant". (Yes, field FBI agents can issue them, and they're issued in the tens of thousands every single year, AND a single letter can apply to a person, team, family, or entire workplace.) You might call it "legal" in that a law passed by Congress with secret interpretations and special addenedums tells them they can... but yeah, I'm going to keep on calling FISA warrants and NSLs used on US Citizens what it is: unconstitutional and thus practically, illegal.

mehwoot 13y ago

Because these are FISA requests for individuals "reasonably suspected to be residing outside the U.S.". Those have never required warrants. Before FISA existed they just did it to whomever they pleased; now it requires a FISA request which is not the same thing as a warrant. Nowhere in that document does it say anything about not needing a warrant to get information on U.S. citizens residing in the U.S. What it does actually say is For these reasons, we hold that a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States. I.e. a FISA request.

gcb0 13y ago
Keyword is "reasonably" believed to be located outside... So, one access to a external server? Visiting overseas?
justinschuh 13y ago
A few points. A FISA order really is a warrant, and the NSA needs one to collect on a US person (ie. US citizen anywhere or anyone on US soil). Before 9/11, FISA warrants were also used to compel US companies to comply with collection against non US persons for which they were the carrier. At some point after 9/11 the Bush administration realized the law could be reasonably interpreted as not strictly requiring this, so they stopped using FISA for this purpose. That was the heart of the warrantless wiretapping controversy, and the primary goal of the FISA Amendments Act was to add requirements and oversight for these situations.
- lawnchair_larry 13y ago
  False, see Verizon order
  - justinschuh 13y ago
    Your response is in no way related to my comment. What point were you trying to make?

magoon 13y ago

Can anybody decode this jibberish? Is it any wonder our rights are being violated by lawyers, lawyers-turned-lawmakers, and lawyers-turned-judges?

koops 13y ago

"...the petition requires us to weigh the nation's security interests against the Fourth Amendment privacy interests of United States persons." The text Fourth Amendment doesn't narrow itself to "United States Persons". It says: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

fsckin 13y ago
Why do you think 'the people' in the Fourth Amendment is not a reference to the same "We 'the people' of the United States" in the Constitution?

Andrew_Quentin 13y ago

It is so strange to see a judgment reference a previous case as Re Sealed Case. It feels like the judge is stating: The authority for this principle can be found in Black Box. It may be justified for civil cases to be held in secret. After all, civil cases can be resolved by mediation, arbitration, even just negotiation. When the matter concerns a petition against the government however, or against a law, there is no reason for the case to be sealed or secret. Whats next, the congress voted in a closed secret session a new secret law?

consonants 13y ago

The NSA has specifically stated that they have the ability to preliminarily gather data through PRISM a week before going to FISC for a warrant. What is presented to the judge as evidence is usually that very collected data.