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[liberationtech] Query on implications of dragnet eavesdropping

Shava Nerad shava23 at gmail.com
Thu Jun 20 21:58:32 PDT 2013


IANAL.

My understanding is that the TSA archives but does not examine the data
except under specific FISA searches.  This is their justification that it
isn't really domestic spying, because it's a fossil record of the data,
like archive.org for every stream, and they just want to be able to go back
into that snapshot and get what they want.

If the privacy implications were not so horrifying, scholars would be
expiring with envy.

Because of the communications allowed among branches of the DHS, I would
imagine, but I have no idea not being a criminal lawyer on that level, that
if a FISA search brought up evidence of, say, a crime relevant to the FBI,
it would go through channels.   It might be funky if it would jeopardize an
ongoing terrorism investigation.

Jurisdictional issues in any area of LE get sticky.  DHS was intended to
lubricate the worst idiocies of the often passive-aggressive barriers
individuals or the bureaucracy would throw in the way of inter-agency
cooperation.

What it did as a major side effect, throwing out the baby with the
bathwater, was blur "posse comitatus" or the division between military and
civilian policing in the US, to the point where as of May, it seems this is
a nearly illusory boundary.

However, since all this data is gathered under clearances,  the family
would, on a practical basis, find it nearly to completely impossible to sue
the government in this case.  They would, from what I have seen from the
ACLU/EFF beating themselves bloody to very occasional expensive wins, have
scant chance as individuals at storming those walls.

Yrs,

----

Shava Nerad
shava23 at gmail.com
On Jun 21, 2013 12:37 AM, "Louis Suárez-Potts" <luispo at gmail.com> wrote:

> Hi,
> This may be a banal or mundane query and probably doesn't directly pertain
> to recent reports of NSA tapping or any other agency's. But let's say that
> in their apparent dragnet the NSA or any other similar agency finds
> probable cause to consider one or more persons as involved in a conspiracy
> to commit a nonpolitical and very mundane but no less horrible crime; or
> say that they (the agency) comes to learn or strongly suspect that the
> subjects of interest have already done something criminal and awful.
>
> Would the agency be required to handover that incriminating information to
> the relevant local or federal police authority? Would they need a special
> warrant for doing that? Would even breaching the way in which this
> information was acquired be legally possible? (And thus, out of a sotto
> voce transmission, unlikely.)
>
> And let's further suppose that the agency has captured what seems to be
> strong evidence that a crime will be committed but because of the
> circumstances of the data capture, the identity of the agency, and because
> it doesn't seem to relate to the ostensible purpose of the agency program,
> nothing is done (except an archive is made, presumably), and the criminal
> act is committed or the criminals who were recorded discussing it go on as
> before, unimpeded and free, at least for this particular act.
>
> And if this failure of action by the agency, to notify relevant
> authorities and either prevent the act or arrest its committers, is then
> discovered by, say, upset family members, would they be able to sue the
> agency for a failure to act? (I"m thinking of people specifically harmed by
> the commission of the crime.)
>
> Put another way, supposing that a record of what seems to be all
> communications taking place in a given nation is being assembled by an
> agency whose purpose is to protect the residents of a nation, where does
> one draw the line of government responsibility?
>
> I'd guess that this question has actually been answered a long time ago,
> and I'd be delighted to learn of the references to prior discussions of the
> issues. It's an interesting point, at least to me, and also clarifies the
> logic of directed intelligence gathering predicted by a specific suspicion:
> namely, that the epistemological frame is tightly drawn (or ought to be),
> and thus the boundaries of responsibility to act are equally limited.
>
> Cheers,
> Louis
> --
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