back to article FOIA documents show the Kafkaesque state of US mass surveillance

A mystery technology biz tried to fight off demands from the US government that it hand over people's communications flowing through its systems. The unnamed company refused to obey the surveillance order, and was also denied the ability to even review the outcomes of any previous challenges to help form its case. That's …

To Constitute or not to Constitute...

I'm not sure what's worse - living in a country with no written constitution or living in one with a written constitution that's ignored with impunity by those in power.

85
1
K
Silver badge

Re: To Constitute or not to Constitute...

At least communism you knew where you stood!

19
0
Silver badge

Re: To Constitute or not to Constitute...

"At least communism you knew where you stood!"

Yes, normally in a field.

24
4
Silver badge

Re: To Constitute or not to Constitute...

The FISC, in the redacted opinion to which the article linked, clearly did not ignore the US Constitution. While a good deal of detail was redacted, pages 27-29 and 36 clearly indicate that the court considered constitutional arguments and dealt with them in a way consistent with statutory law and judicial precedents, and concluded that the order, which it affirmed, was lawful and constitutional. The fact one may disagree with the court's conclusion or reasoning (to the extent it is comprehensible after the redactions) does not show that the Constitution was ignored, with or without impunity.

7
26
Anonymous Coward

Re: To Constitute or not to Constitute...

Living in a country with a written constitution, but those rights are extended to corporate person-hoods.

That's the worst.

23
2
Silver badge

Re: To Constitute or not to Constitute...

Oh? How does one properly confront one's accuser without a proper accounting of the evidence against you? Isn't that in the Sixth Amendment and why discovery of evidence is a key aspect of your normal trial (otherwise it gets thrown out)?

34
0
Silver badge

Re: To Constitute or not to Constitute...

Yes, normally in a field.

Not always, sometimes it was against a bullet pock-marked wall painted in institutional green.

18
2
Silver badge

Re: To Constitute or not to Constitute...

""At least communism you knew where you stood!"

Yes, normally in a field."

Friend has shown me a film made in The People's Paradise. I already related the shot of the really old dude pushing a breast plough. There was also a piece about a woman with TB who had to sleep in the goat shed for 20 odd years just in case she passed the disease on to her children. Hopefully I will be dead by the time this sort of thing comes to pass in the West.

5
5
Anonymous Coward

Re: To Constitute or not to Constitute...

Does 70 people getting roasted to death for the sake of 4500 quid count?

17
4
Anonymous Coward

Re: To Constitute or not to Constitute...

From how things are going I'd expect the children to be in the goat shed rather than the woman.

0
0
Megaphone

Re: To Constitute or not to Constitute...

'"At least communism you knew where you stood!"

Yes, normally in a field.'

At least in a communist society, the sociopaths will easily be identified and chased out

You cannot disagree that it is the sociopath that thrive in the capitalist model, at least not while keeping a straight face. Some estimate it is 3% of the population, I reckons it's closer to 30% and will only keep on increasing

9
8
Big Brother

Re: To Constitute or not to Constitute...

FlamingDeath, that's one big of an eugenics project you have going there.

2
4

This post has been deleted by its author

Silver badge

Re: To Constitute or not to Constitute...

"I suggest you look at the election result for this borough at last election carefully. Take a very long careful look. Think. Careful look again. Think. Add/subtract some numbers. Think. Ask no more questions."

I knew someone had to come out with that sick theory. Took its time.

4
1
Silver badge

Re: To Constitute or not to Constitute...

You cannot disagree that it is the sociopath that thrive in the capitalist model, at least not while keeping a straight face.

Yessir, the leaders of the Soviet Union, the former Eastern Bloc, mainland China, North Korea and "revolutionary" Cuba, were and are all well-adjusted individuals. Not a sociopath or psychopath in the bunch.

13
0

Re: To Constitute or not to Constitute...

At least in a communist society, the sociopaths will easily be identified and Promoted.

FTFY

13
1
Silver badge

Re: To Constitute or not to Constitute...

The sixth amendment refers to criminal matters. The question in this case was primarily about the law, with constitutional questions in the background as always is the case. If criminals in the usual sense were involved at all, they were not either government or the unnamed company that initially declined to comply with the order to provide data, but the targets of the particular selectors specified in the original order.

The matter at issue would have been known in full to the litigants on both sides, and to the court. The fact that the document released publicly has redactions doesn't bear on that.

1
4
Silver badge
Coat

Re: To Constitute or not to Constitute...

painted in institutional green.

With accents in intestinal brown no doubt :(

3
0

Re: To Constitute or not to Constitute...

The matter at issue would have been known in full to the litigants on both sides, and to the court.

Bullsh*t. The matter was certainly NOT known to both sides, as one of the major points is that one side (the company) was denied access to relevent case law and prohibited from mounting an informed defense.

In my opinion, In a free society any court decision that cannot be published cannot be construed to be binding. These "secret courts" are one of the biggest blemishes on the once-free American society.

36
0
I3N
Flame

Re: To Constitute or not to Constitute...

Well you certainly don't want to read this [where is the pillory when you need it?] ... https://www.bloomberg.com/view/articles/2017-06-16/beware-of-blaming-government-for-london-tower-fire

2
0
Anonymous Coward

Re: To Constitute or not to Constitute...

"I'm not sure what's worse - living in a country with no written constitution..."

<pedant mode><apologies>

If that's a reference to the notion that the UK doesn't have a written constitution and that it's all made up on the spur of the moment by whoever is in power is, sadly for the conspiracy theorists, not strictly true. The UK does have a written constitution, but it's not written down in one single place that you can point at and give the title "The Constitution". If anything, the entirety of all UK laws sets out the constitution: Obligatory Wikipedia.

</pedant mode>

That's kind of useful; there's no general problem changing any part of it, if parliament wants to.

Arguably the sacrosanct, inviolable and supreme nature of the US Constitution is a real barrier to legislative progress in the US. It's not that it can't be changed - there's been a lot of ammendments over the decades. But to an outsider it does seem that US politicians tend to put aside rationality in favour of not being seen to tamper with the constitution. It's kinda nuts to have a "law" that cannot be changed simply because changing any part of it is somehow seen as an unwarranted attack on all other parts of it.

3
1
Silver badge

Re: To Constitute or not to Constitute...

"Arguably the sacrosanct, inviolable and supreme nature of the US Constitution is a real barrier to legislative progress in the US. It's not that it can't be changed - there's been a lot of ammendments over the decades. But to an outsider it does seem that US politicians tend to put aside rationality in favour of not being seen to tamper with the constitution. It's kinda nuts to have a "law" that cannot be changed simply because changing any part of it is somehow seen as an unwarranted attack on all other parts of it."

Unless the idea is that the law should not be subject to the whims (and evils) of man. Rule of LAW rather than rule of MAN. And given today's environment, they have a point. Given half a chance, do you think the various rights and protections given in the Constitution would STAY in the Constitution?

7
0
Silver badge

Re: To Constitute or not to Constitute...

At least in a democratic society, the sociopaths will easily be identified and Promoted.

See, works as well ... ;-) I would also add "elected" ...

5
2
Silver badge

Re: To Constitute or not to Constitute...

The secret courts are above the law.

As George Carlin once said: In the US, you have no rights, just TEMPORARY privileges that can be taken away whenever a government sees it fit, citing US Americans of Japanese decent in the 1940's. Think that is old, look at Guantanamo. Most inmates were held for years without sufficient elements to open even the slightest investigation, said a US president!

Transparency cannot come too early, I tell ya, a.secret court is anti-constitutional, you can tell me whatever you want, it is anti-constitutional. Claiming a secret court upheld the constitution is non-sense, it goes against "establishing justice" because a secret court is BY DEFINITION unfair, it has no balance.

16
0
Anonymous Coward

Re: To Constitute or not to Constitute...

That's Andrei Chikatilo managed it.

0
0
Silver badge

Re: To Constitute or not to Constitute...

The Register article said that the plaintiff (not defendant) was denied access to relevant case law, but the claim was not supported in the documents the article linked to (https://regmedia.co.uk/2017/06/16/secret_shutterstock.pdf). The quotes the article attributed to Judge Collyer do not occur anywhere in in the unredacted partts of either document included in that PDF file. Perhaps the link is incorrect.

The issue was whether the order complied with statutory law and the Constitution. Both litigants will have had access to the arguments made on either side. If the plaintiff was denied access to other decisions, it may or may not have affected the outcome; my guess is that it would not. The unredacted parts of the decision show that Judge Collyer considered a number of prior decisions, quite a few of them (e. g., Riley v. California) publicly available, in addition to the law and the specific facts. A good deal was redacted from the version released publicly, but the both the plaintiff and the government will have seen the unredacted versions and have had access to the various briefs and to the oral arguments if there were any.

The FISC is not secret, nor are its processes - to the litigants. It deals in classified material, and many or most of its actions are classified. Otherwise, it (and the FISCR) are ordinary federal courts doing the kind of thing such courts do with respect to a particular subject area. Even the fact that its decisions are not public is not unique, as civil litigation in other courts sometimes results in decisions, albeit largely negotiated settlements, that are not public.

It may be that there is too much classified "stuff" including much of the FISC proceedings and decisions. That is a matter for the Congress to address when it takes up the question of FISA renewal later this year, and it almost certainly will be brought up for consideration in that context.

0
1
Silver badge

Re: ... in a field

Not what you meant, but I once had a friend who was a Young Intellectual in China at the time of the Cultural Revolution. He was purged and sent to work amongst the peasants.

The local farm girls had none of the prejudices of the radicals in the cities. Re-education became sex education.

4
0
Silver badge

Re: To Constitute or not to Constitute...

Well you certainly don't want to read this [where is the pillory when you need it?] ... https://www.bloomberg.com/view/articles/2017-06-16/beware-of-blaming-government-for-london-tower-fire

A very interesting article, with some good points re cost/benefit ratios.

I would be interested in the final reports on the cause, as I've seen buildings like that where a number of basic safety measures (some unintentional, like unlined concrete stairwells which don't give much for a fire to burn) are pretty cheap - fire-proof doors in corridors, stairwells etc of course help a hell of a lot. Even wooden doors that are closed significantly slow, if not completely prevent the spread of the fire.

I've seen buildings clad with polystyrene foam sprayed with a concrete-like substance (2-3mm thick), is this what they used here? Is effective as a cheap cladding and a good insulator, but obvious fire risk.

Thanks for the link.

2
0
Silver badge
Trollface

Re: To Constitute or not to Constitute...

it does seem that US politicians tend to put aside rationality in favour of not being seen to tamper with the constitution.

Ah, that would explain shrub and chump then!

2
0
Silver badge

Re: To Constitute or not to Constitute...

A good deal was redacted from the version released publicly, but the both the plaintiff and the government will have seen the unredacted versions and have had access to the various briefs and to the oral arguments if there were any.

Not necessarily. I've seen documents which were redacted before being released to the defendant. Even the lawyer cannot get the material, yet it may form part of the judge's decision.

Even in minor cases, where a prosecuting body is involved, especially if their case is weak (or so it seems), they will play the hide-information-under-any-excuse game as long as they can. Especially where the redacted content would instantly and unequivocally prove the defendants innocence.

3
0

Re: To Constitute or not to Constitute...

That is, until the sociopath fats the keys to the kingdom. At that point your pretty f$cked. Communism, Capitalism, the problem is the underlying human material

2
0

Re: To Constitute or not to Constitute...

The USA, reduced to a sham "democracy" - secret trials in secret courts

Surveillance that the Stasi could only dream of

LMAO at the "Land of the Free"

2
0
Anonymous Coward

Re: To Constitute or not to Constitute...

Doesn't matter what type of govenment you live under, the sociopaths will rise to the top if the system allows it.

Trump and Putin, two peas in a pod?

4
0
Silver badge
Unhappy

Re: To Constitute or not to Constitute...

"At least communism you knew where you stood!"

Yes, normally in a field.

Or against a wall.

0
0

Re: To Constitute or not to Constitute...

Arguably, this treatment of British women who were believed to be typhoid carriers was even worse than sleeping with a goat: http://news.bbc.co.uk/today/hi/today/newsid_7523000/7523680.stm

0
0
Anonymous Coward

Re: To Constitute or not to Constitute...

"The USA, reduced to a sham "democracy" - secret trials in secret courts

Surveillance that the Stasi could only dream of"

See also: Contemporary England (Scotland and Wales and NI are slightly different).

E.g. the secret criminal trial in 2015 of alleged terrorist Erol Incedal.

For the first time in living memory (?), the vast majority of an English criminal trial was held in secret and almost nothing has been reported, except the verdict. The handful of pre-approved journalists who were allowed into the court were not allowed to make notes, and were searched on entering and leaving the court to ensure that ruling was enforced. Democratic rule of law? Equal justice? Maybe, so long as it favours the establishment.

http://www.bbc.co.uk/news/uk-31989581 (26 Mar 2015)

"On 13 October 2013, armed police blew out the tyres of a car near the Tower of London. That much we know for sure about the arrest and prosecution of Erol Incedal for preparing for acts of terrorism.

Since then, he has faced two trials for preparing for acts of terrorism. But what was his alleged plan?

Well, we simply do not know - and the jury at his retrial has decided it did not buy whatever it was being told he was supposed to have done.

This has been the most secret prosecution since World War Two - and it has ended with the only defendant being cleared.

A few journalists were permitted to hear to some of the secret Old Bailey sessions - but they will go to prison if they reveal what they learned.

The rest of us were allowed in to Court Nine for some brief open sessions - but most of the time the doors were locked.

Two weeks before his arrest, traffic police had stopped the 26-year-old for speeding.

He was taken to a police station for two hours - and while he was there, officers searched the black, E-class Mercedes.

They found a note inside a glasses case of the address of a property owned by former Prime Minster Tony Blair and his wife, Cherie. [...]"

Please take a few moments to read the rest. Here's that link again, or there's similar coverage in various other places if you don't want to trust the BBC:

http://www.bbc.co.uk/news/uk-31989581

0
0
Silver badge

Don't forget that the easiest thing to do is deny access

Working with a bunch of lawyeresque people they usually err on the side of "I'm not going to sign off on it."

You may be vilified by the libertard press but you won't have to really defend your decision by Just Say No.

6
2
Silver badge

Isn't this the opposite of some nation-states laws: Innocent until proven guilty?

Wouldn't the presumption of innocence mean that the documents and correspondence were open to public review unless there was a settled court case that they had to be withheld?

If it's "national security" to deny access wouldn't that have to be shown in some legal body and that decision open to public review?

(It's obvious - IANAL).

7
0
Silver badge

Re: Isn't this the opposite of some nation-states laws: Innocent until proven guilty?

No. This was a civil action. "Presumption of innocence" refers to criminal matters.

0
8
Silver badge

Re: Isn't this the opposite of some nation-states laws: Innocent until proven guilty?

But the right to confront one's accuser properly applies to ALL cases.

12
0
Silver badge
Unhappy

Re: Isn't this the opposite of some nation-states laws: Innocent until proven guilty?

But the right to confront one's accuser properly applies to ALL cases.

Unfortunately no. Secret hearings, secret testimony, material you cannot even know that exists let alone get a chance to challenge it, yet it will form a large part of the judgement.

Constitution, Bill of Rights, treaties on rights (eg UNCHR(sp)) things like that - words that are ignored when they become inconvenient.

Welcome to "justice" in the West, proudly taking the worst parts of the worst systems ever, and taking them to even more extremes. All in the name of protecting the gulliblepublic.

6
1
Gold badge
WTF?

"Foreign Intelligence Surveillance Court,"

It may be called a court, but it sounds like rubber stamping operation for the USG to me.

Just to be clear.

The defendant asked for a copy of the original court documents of previous judgements by the Court and the Court told them "No you can't have them. Use the summary provided by the Prosecution."

Hard to believe that this exists in a country that proclaims so loudly it's support for a right to a fair trial and due process.

36
0
Anonymous Coward

Re: "Foreign Intelligence Surveillance Court,"

FISC, aka @realSCOTUS

5
0
Silver badge

Re: "Foreign Intelligence Surveillance Court,"

Since when can FISC overrule a direct Constitutional body (SCOTUS' authority comes from Article III)? Based on that, why can't SCOTUS strike down FISC if directly confronted?

2
0
Anonymous Coward

Re: "Foreign Intelligence Surveillance Court,"

>Based on that, why can't SCOTUS strike down FISC if directly confronted?

Ultimately because the North was stupid enough to not let the treasonous South form another 3rd world country south of us bleeding economic refugees and even worse actually gave them back the franchise they didn't deserve.

8
2
Silver badge

Re: "Foreign Intelligence Surveillance Court,"

All of the FISC judges are appointed by the Chief Justice of the Supreme Court. I suppose, theoretically, that Congress could impeach one but I'd lay money on a comet wiping out the human race first. Except for that, you have to take this up with Roberts.

7
0
Silver badge

Re: "Foreign Intelligence Surveillance Court,"

Hard to believe that this exists in a country that proclaims so loudly it's support for a right to a fair trial and due process.

I normally apply the doctrine of "thou doth protesteth too much". Any country that harks on about how free and fair it is, invariably isn't. There may have been a point in its history when it was but that time has long since passed.

14
1
Anonymous Coward

Re: "Foreign Intelligence Surveillance Court,"

Mark65, I agree. As far as XX Century history shows, the USA stopped being "The Land of the Free" when Eisenhower was elected president and Julius and Ethel Rosenberg were electrocuted to a crisp. It's been downhill since then.

2
1
Silver badge

Re: "Foreign Intelligence Surveillance Court,"

The FISC and the FISCR are Article III courts in the same way as the Supreme Court and other subordinate federal courts, and are staffed by judges nominated by the president and confirmed by the senate. The main differences are that the judges are assigned to them by the Chief Justice of the Supreme Court and that the subject matter and decisions are generally classified.

1
0
Silver badge

Re: "Foreign Intelligence Surveillance Court,"

But I believe the Supreme Court is the ONLY court directly described in the Constitution, just as the House and Senate are directly described in Article I (complete with qualifications). Everything else in those Articles goes through them as the ultimate bodies of those Articles.

0
0

Page:

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Forums

Biting the hand that feeds IT © 1998–2017