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[liberationtech] Query on implications of dragnet eavesdropping

Louis Suárez-Potts luispo at gmail.com
Fri Jun 21 07:09:30 PDT 2013


Thanks, Shava,

On 2013-06-21, at 24:58 , Shava Nerad <shava23 at gmail.com> wrote:

> 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.

Yes, I understand that, and that also shields them (or any other agency) from knowing too much (and thus having to act on that information). "Too much" would include material not strictly relevant to their remit.


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

FWIW, privacy issues have always haunted the subjects of scholarly inquiry. And having once been in the field where such sort of data is tantalizing (by data, I mean the warp and woof of daily life captured in the channels of communications), I find myself wishing indeed that the state would fund legitimate programmes to take snapshots of daily life. (I suspect that commercial interests are the ones salivating here.)

> 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.

That's actually the gist of my query. My example would be the evidence that is allowable in a terrorist trial, if there is one, as well as the legitimacy of evidence gathered incidentally in the trial of a non-terrorist. I believe that Scotus has ruled that evidence incidentally obtained but relevant can still be used--but then we come across the problem of acting on evidence (or suggestive indicators—patterns, say) that have been obtained under secret legal narratives. It's not clear to me that the spies would care about that information getting to other authorities, esp. if it does jeopardize their investigation. Prior instances of this sort of thing can be found, I would guess, where one policing branch has kept harmful information to itself as revealing it would kill the investigation. (Certainly Hollywood has minted it.)
> 
> 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. 

Yes. But it's also not just a jurisdictional issue. It's also a question of society, or rather, what we want of it. Thus:

	* If we want a national police that protects us to the extent of monitoring all our communications and activities, if only by examining patterns and metadata, THEN…..
	* Can we demand that this national police protect us by efficaciously using the information it has gathered? 

And, if it has not, and harmed has come, is it, or its subordinates, guilty of misprision? 
> 
> 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.

I guess my point is that that blur has actually led to a worst-case situation, where information gathered for military purposes could be of real interest to civilian authorities but useless, or never given to them, for one reason—jurisdiction, say—or another. I have no doubt that this disarticulation of interests and actions has gone on a long time. And I'm hardly suggesting that an obvious solution, like the Stasi, is desirable.

(To clarify:  A military interest would lie, I suppose, in the gathering of information the military can act on, such as patterns that would lead an analyst (or supercomputer) to a (would-be) terrorist. A civilian interest would lie in everything else and be framed by national borders.)
> 
> 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.

I was thinking of classes of the affected, too; but more then at power's obligations of information.

Cheers, and thanks,
Louis

> 
> 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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