back to article FYI: FBI raiding NSA's global wiretap database to probe US peeps is probably illegal, unconstitutional, court says

The FBI is likely breaking the Fourth Amendment, which protects against unreasonable searches, when it investigates domestic crimes using an NSA database created from international wiretaps, an appeals court ruled Wednesday. In a decision [PDF] that could put an end to a practice that civil-liberties groups have decried as …

  1. sbt Silver badge
    Flame

    Justice in secret, justice delayed; this is not justice at all

    702, should never be renew!

    Also, get your damned finger off that trigger, missus!

  2. veti Silver badge

    Read the 14th amendment

    Keiran: please stop using the word "citizen" in these stories.

    The court clearly and precisely talks about "US persons". That's not the same thing at all, it applies equally to anyone on US soil. This matters because if it could only be used by citizens, that would be a flagrant breach of the 14th amendment, which says "no state shall... deny to any person within its jurisdiction the equal protection of the laws."

    If the target is overseas at the time, that's another matter. Then it's legal to discriminate in favour of citizens. But the moment the subject sets foot inside a state's "jurisdiction", it becomes illegal. Anything they can do to us, they can do to you - so sayeth the constitution.

    1. diodesign (Written by Reg staff) Silver badge

      Re: Read the 14th amendment

      Well, citizens are US persons so we're not wrong. Citizens are a subset of persons.

      Bear in mind, spelling out "individuals who are United States citizens or lawful permanent residents, or are located in the United States" every time ruins sentence flow and headlines, and we like to keep things snappy around here.

      But anyway, I've tweaked that to just peeps. Thanks for the feedback, and don't forget to email corrections@theregister.co.uk if you spot anything wrong.

      C.

      1. doublelayer Silver badge

        Re: Read the 14th amendment

        That's true, but as a subset it can mislead people into thinking that the law only applies to the subset. For an example, Linux machines are a subset of computers. But if I said "The Python programming language is generally supported on all Linux machines with sufficient resources", which is true, it may sound as if I'm saying that it is less likely to run on BSD, Windows, or Mac OS machines, which is not true. Your original statement was factually correct, but not phrased in a clear way. I appreciate the correction having been made.

        1. arctic_haze Silver badge

          Re: Read the 14th amendment

          It is like saying that white people are protected by the First Amendment. It is technically true but also misleading and possibly racist.

          1. Anonymous Coward
            Anonymous Coward

            Re: Read the 14th amendment

            "It is like saying that white people are protected by the First Amendment. It is technically true but also misleading and possibly racist."

            I'd argue from the outside looking in that in many cases only white people get *any* sort of protection in the US. Especially when it comes to protection from their own trigger happy law enforcement types.

      2. Dan 55 Silver badge

        Re: Read the 14th amendment

        I think it's important to get this one right, there's a lot of misconceptions, even commentards that frequent this illustrious organ are under the impression that the constitution doesn't apply to foreigners inside the US.

      3. bombastic bob Silver badge
        Unhappy

        Re: Read the 14th amendment

        agreed, it's been the general policy of the U.S. justice system to extend the same *kinds* of constitutional protections to non-citizens, due process etc. while they are guests in our country (even illegally).

        As far as the 9th Circus is concerned, I think they (like the proverbial broken clock that's right twice a day) got it RIGHT this time in their ruling. I also look forward to the U.S. Supreme Court turning this into legal precedent. I suspect that with all of the FBI shenanigans recently uncovered, there's little chance the Supreme Court would differ from this position. "Rogue" and "Overly Aggressive" FBI agents who illegally collect damning information and THEN intimidate the accused into a guilty plea have to be STOPPED. That's certainly NOT "due process". Right General Flynn?

        strangely I just heard about this on El Reg. Where are all of the otherwise LOUD civil libertarian ACLU types on this???

    2. Anonymous Coward
      Anonymous Coward

      Re: Read the 14th amendment

      To a lot of US Law Enforcement anyone who is not a bona-fide US Citizen has no rights at all when you appear in their target list. No right to miranda, a lawyer, nothing. Why?

      Simpy because anyone who is not a US Citizen is an enemy of the state. They view it as the whole world outside the 50 states is out to get them. This dates back to the days of McCarthyism and 'reds under the bed'.

      This is not true but if you are on the wrong end of a Policeman's (many other law enforcement agencies are available) Gun then who are you to argue eh?

      1. Fatman Silver badge

        Re: Read the 14th amendment

        You have left out that subset of law enforcement that believes that most US citizens who are """not like them""" are also enemies of the state.

        1. stiine Silver badge
          Unhappy

          Re: Read the 14th amendment

          You're correct, and unfortunately, they go even farther and think that if you aren't wearing a blue uniform, you're an enemy.

    3. Anonymous Coward
      Anonymous Coward

      Re: Read the 14th amendment

      Yet the Fourth Amendment talks about "people" not "citizens".... surely written in an era when targeting anybody just a a few hundred kilometres away was unthinkable - yet while espionage usually ignore any rule, the US idea they can target "foreigners" as they like will put them in trouble, one day. Because US citizens must remember they are "foreigners" in most of the world...

  3. amanfromMars 1 Silver badge

    Surely they couldn't be so jarringly stupid, or is insanely demented the real case and cause?

    Based simply and purely upon the global evidence freely available to practically all, one just has to ask ........

    Is Uncle Sam going all out Interstellar Fourth Reich? Have they forgotten or choose to ignore and dismiss or are they fully ignorant of the tried and already well tested final solution of the third iteration? Almighty destructive blitzkrieg annihilation of command and control centres and ruling party generals and cohorts ..... although nowadays that comes along in a wholly new host of myriad ways and memes against which there is no possible viable effective successful defence or attack vector.

    Someone really is leading them a merry dance and treating them as theatre puppets to be exploited for the entertainment of the masses ..... and that is guaranteed to not end at all well for such perps. Such tragedies of personal intelligence abuse and misuse never ever do.

    So .... where reside and hide the maniacal pulling of strings? They surely require and quite rightly deserve more than just everyone's undivided immediate attention and special forces services.

  4. Anonymous Coward
    Anonymous Coward

    Checks and balances essential

    You wouldn't want William Barr, just wandering over to the NSA and grabbing all the data on Rudy Guilliani's phone calls to Oligarchs would you? Or him heading over to the Treasury and grabbing all the data on that $1 million dollars that Lev Parnas received from Russia whilst Lev was on a mission for Trump?

    If there is a process and checks and balances in place, then any dubious things done by Barr, his boss and their agents, are recorded and have a legal basis that can be verified, and he can be prosecuted when he's out of office if there is anything wrong. But only if the checks and balances are kept intact.

    Can I point out: A property deal starts with a location, an option is taken on the land, and the building is designed to fit the location. Access roads, availability of parking, scenic views, noise levels dictate the soundproofing, desirability of the location dictates the sale price, demand in that location for office or retail dictates the purpose of the building, train and airport access, all decide what sort of building will be placed there.

    You don't start with an architect picture, and a demand for "investment" for a building that doesn't even have a proposed location. You don't then receive a major Russian bank's backing for a building that doesn't even have a proposed location! You don't then lie about the bank backing it (which the Russian bank itself doesn't contradict), or the meetings with the Russian government over it (which the Kremlin didn't contradict).

    And if the money flows in from Putin connected individuals and banks, you might immediately think there was some sort of money laundering going on, and then follow what happens to that money after it arrives. Which is presumably what the NSA and Treasury is doing given its their job.

    I'm obviously referencing "Trump Tower Moscow", a tower with no location set but the fees and money in place.

    But also other very very very similar projects from this same group of people, which do not appear to have ever been built, promoted by YouTube videos with single digit views, and yet the people concerned apparently have millions of dollars at their disposal!

    So if ever the checks and balances need to be enforced it's now.

    1. Peter 26

      Re: Checks and balances essential

      I definitely think Trump Tower is fishy, but just to play devils advocate this does happen with bigger constructions.

      Here's an example. WWF UK Headquarters (The panda one, not wrestling!) WWF knew they needed a new site for their head quarters in the UK, they asked around the different councils to see who would subsidise their new building the most. Woking won by offering to pay for the building for them, in return they got the prestige of having WWF UK Headquarters in Woking putting them on the map, and presumably more jobs... You can argue whether that was a good deal, but it shows that it makes sense to get the subsidies in place first before deciding on location. Even on a smaller scale when doing a house extension, you first sort out with the bank how much money you've got before you start the plans and construction.

      1. overunder Silver badge

        Re: Checks and balances essential

        ".. you first sort out with the bank how much money you've got before you start the plans and construction."

        I agree with your thinking, but that is a bad analogy because _YOU_ have to pay the bank back, not the taxpayers.

    2. bombastic bob Silver badge
      Thumb Down

      Re: Checks and balances essential

      "Nice Job" </snark> with the attempt to inject ridiculous partisan politics and fake news opinions into your "point". Almost as bad as the classic 'leading question' i.e. "How long have you been beating your wife?"

      'pandering to the perception' etc..

  5. lglethal Silver badge
    WTF?

    Hmmm

    So the court decided that using the database without a warrant is illegal, thats great. But how the FBI can say "oh but we never used that database in this case, but we're not going to tell you how we got the information for prosecution." and not automatically have the information ruled out as inadmissable is totally beyond me.

    How can they get away with not revealing to the judge, where and how they got the information they used for a prosecution? Are the FBI, actually the Stasi? If a judge asks where info comes from, surely that must be handed over immediately? Sure the prosecutor can ask for the court to be closed to the public or hell that the information is provided to the judge only if its considered secret, but if a judge asks and gets told "sorry no were not giving you that." then how on Earth can it be used in court?

    The mind boggles! (or it would if we didnt continually read about the lengths US law enforcement will go to "bend" the rule of law in their favour...

    1. martinusher Silver badge

      Re: Hmmm

      They'll use this information to get more concrete information that they'll use in any prosecution. Its exactly the same process as using confidential informants -- even admitting their existence reduces their usefulness so you don't admit to them unless your hand is forced.

      1. stiine Silver badge

        Re: Hmmm

        They still have to provide that information to the judge. There's a latin phrase for it but I don't recall what it is.

    2. FozzyBear Silver badge

      Re: Hmmm

      Yep called chain of custody. Prosecutors and Defence (if they are submitted their own evidence) must be able to show that the evidence they are presenting can be traced back to the source. Without any broken or even bent links. In the instance of verbal conversations without direct source it's called heresay and immedaitely thrown out.

      If there is even a hint of either I've seen Magistrates and Judges verbally beat them stupid before the other side can even get in their objections.

      However, you did answer your own question. It is US law we are talking about.

    3. Carpet Deal 'em Bronze badge

      Re: Hmmm

      It's called "parallel construction": you gather the evidence the one way, then work backwards to find a technically legal way you could have gathered it and pretend that's how you actually did it.

    4. Roland6 Silver badge

      Re: Hmmm

      >So the court decided that using the database without a warrant is illegal

      Did they?

      "But, the appeals court noted, a subsequent query of that database at some future date specifically for a US person would almost certainly require a warrant. Without it, the authorities are breaking the Fourth Amendment on unreasonable search."

      Which seems to suggest the FBI's original (general?) search of the NSA DB was all fine and dandy, however, the moment the FBI decided to search the same DB for a named person they should of gained a warrant.

      What isn't clear is the grounds for the judges deciding the FBI (effectively) asking the NSA to perform a DB search for a named person was "unreasonable". Yes the DB might contain information collected from unofficial sources, but that is a different matter to "unreasonable search".

      Following the logic of the judgement, it would seem that the FBI (and other authorities) will only be able to request searches from other departments/agencies and private companies (eg. phone and bank records) if they can show they are reasonable ie. directly related to information they already have that is directly related to the incident being currently investigated.

    5. stiine Silver badge

      Re: Hmmm

      Because they have a lawyer, their own, of course, tell them that its ok, just don't tell anyone.

  6. Kubla Cant Silver badge
    Headmaster

    Willfulness?

    evidence of willfulness regarding the tax returns

    Strange use of "willfulness". Are Americans supposed to complete tax returns in some kind of trance, with no exercise of will involved?

    1. Yet Another Anonymous coward Silver badge

      Re: Willfulness?

      >Are Americans supposed to complete tax returns in some kind of trance,

      The design of the forms would suggest that

    2. trindflo

      Re: Willfulness?

      The IRS prosecutes people differently depending on whether they can reasonably claim to have made a mistake or whether they are willfully perpetrating a fraud when they fill out their forms. The IRS has their own court system, so the prosecution can become quite draconian.

      It was phrased strangely in the fine article.

    3. Michael Wojcik Silver badge

      Re: Willfulness?

      Relatively uncommon, perhaps, but well-established. "Willfulness" (more often "wilfulness" in BrEng) is most commonly a synonym for "stubbornness" in contemporary usage; but historically, and sometimes (as here) currently as a term of art in legal contexts, is used to mean "with a tendency toward disobedience".

      In US legal terminology it is apparently specfically defined that way in certain contexts, particularly in criminal law.

      1. Unicornpiss Silver badge
        Meh

        Trance..

        I'm sure some CPAs understand the tax laws, which change significantly every year, or at least confidently plunge forward believing they do. But for the average taxpayer doing their own taxes, they're either relying on software to get it right, or it's often like a caveman trying to assemble Ikea furniture or rewire a home. If the assembled table stands on its own or the lights work and there's no smoke, it's good 'nuff.

        Willfully committing fraud isn't required when people have no idea what they're doing.

        1. Michael Wojcik Silver badge

          Re: Trance..

          True. I wasn't commenting on the likelihood of "willfulness", in the legal sense, in this particular case - just noting that the court seemed to be using it that way.

  7. Anonymous Coward
    Anonymous Coward

    Amusing to read the comments

    Funny that hard copy documenting the multimillions that the Ukraine contributed to the offshore Clinton Foundation is ignored, the $500,000 collected by William Clinton for speeches to Russian Oligarchs, is ignored, but a never built "Trump Tower" in Moscow is proof of something. WUWT? But then most denizens here don't follow anything but a few echo chambers.

    702 should Sunset and disappear forever. Sometimes it seems like letting the aliens in Area 51 have free reign at Washington DC would be a good thing 8-(^)

    1. Hollerithevo Silver badge

      Re: Amusing to read the comments

      Um...the Ukrainians are the good guys? Had a revolution to throw out corrupt Russian-led leaders and to try to see if they could clean up their country and maybe join the EU? The country that Russian invaded and is doing its best to subvert? I am not sure how donated to the Clinton Foundation does anything -- it's not like either Clinton is actually in power. A bribe sot hat they will ask their friends in high places to help the Ukrainians? Which the US is and should be doing in any case, because of that JFK speech long ago setting out that America was the friend of democracy anywhere?

      1. Nunyabiznes Silver badge

        Re: Amusing to read the comments

        So bribery is ok as long as it is from (today's) friend? Good to know.

        The bribes into the Clinton Foundation were mostly during Hilary's SOS term. She had significant sway inside Pres. Obama's administration.

        I find it constantly amazing/amusing the lengths some people will go to excuse their preferred political animal for what they are persecuting the other side's political animal for doing. THEY ARE BOTH WRONG. Stop with the hypocrisy and point fingers at all of the miscreants.

  8. tekHedd

    Oh no! The FBI is going to have to go back to *secretly* illegally spying.

    "...a decision that could put an end to [unconstrained illegal spying and fishing expeditions]"

    Don't you believe it for a second.

  9. John Smith 19 Gold badge
    Gimp

    and let's not forget the lies those officials have told.

    "We can't tell you how many US passport holders are on this database"

    Lies, and more lies.

    The only way to do this is to dump the whole database.

    They simply cannot be trusted not to misuse it.

    1. Snowy Silver badge
      Facepalm

      Re: and let's not forget the lies those officials have told.

      Interesting phrase "We can't tell you how many US passport holders are on this database", does not mean they do not know how many are in it just they can not tell you how many are.

      if the did not know surely they would have said "We do not know how many US passport holders are on this database"

      1. Anonymous Coward
        Anonymous Coward

        Re: and let's not forget the lies those officials have told.

        Are we sure they used the contraction? Because it seems more accurate that they're stating the possibility:

        "We can (not tell you ...)"

        Though perhaps the quote is accurate, and they just redacted the details that they can't tell the court... without violating their own 5th amendment rights against self-incriminating statements.

  10. TheresaJayne

    Better Be Careful

    I just realised something, they can force visitors to unlock their phones when entering the usa, lots of people have lastpass, keypass dashlane etc.

    If you unlock that (which can be fingerprint unlocked on a phone) they then would have unlimited access to ALL your accounts, addresses and credit cards etc.

    Also you have no right to say no. Food fot thought.

    1. whitepines Silver badge
      Big Brother

      Re: Better Be Careful

      Well, anyone dumb enough to keep their passwords on their mobile probably deserves the data theft. Not saying the USCBP behaviour is correct, but putting the keys to your digital life on a device designed from the ground up to spy on you seems like a bad idea, no?

  11. Anonymous Coward
    Anonymous Coward

    You didn't know that this existed?

    Y'all must have been sleeping, I've known its been happening for about 40 years now. If you are a US citizen and you communicate with anyone outside the US then it's completely legal for the NSA to listen and record the conversation. Since 9/11 they have been recording all interactions between US residents if one of the residents communicates with anyone outside the US - check for El Reg stories about 6 months after 9/11 documenting this.

    If they make it illegal for the FBI to do this then all the FBI need to do is contract with Google, Facebook, Twitter, Instagram, etc etc for the information.

  12. NonSSL-Login
    Big Brother

    Parallel construction

    Parallel construction will ensure that not much will change in reality.

    https://en.wikipedia.org/wiki/Parallel_construction

    As usual, no protection for non-US citizens from mass surveillance.

  13. Anonymous Coward
    Anonymous Coward

    Google, Facebook, Apple, Microsoft, Amazon

    US firms that are the retail arm of the NSA

  14. onebignerd

    There was an article recently that the NSA told Congress that the dragnet surveillance was ineffective and unused, but they wanted permanent renewal of section 702. Of course with the NSA's torture of the English language who knows what that really means. They told Congress that the data was not collected until an annalist actually looks at it. Nothing will change at the FBI or with any law enforcement agency, with the fusion centers nation wide they still have access.

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

Biting the hand that feeds IT © 1998–2020