back to article FBI Director: FISA Section 702 warrant requirement a 'de facto ban'

FBI director Christopher Wray made yet another impassioned plea to US lawmakers to kill a proposed warrant requirement for so-called "US person queries" of data collected via the Feds' favorite snooping tool, FISA Section 702. This controversial amendment to the Foreign Intelligence Surveillance Act will expire at the end of …

  1. Doctor Syntax Silver badge

    "A warrant requirement would amount to a de facto ban"

    I can't imagine a clearer admission of current wrongdoing.

    1. OhForF' Silver badge
      FAIL

      Agreed, it is pretty strange that he says he has deep concerns about compliance violations and at the same time argues they need to be able to query data about US citizens without having enough on them to get a warrant. As if that is not exactly the kind of violation that all the discussion is about.

    2. ChoHag Silver badge

      "If we had to ask for permission we wouldn't be allowed!"

      1. Yet Another Anonymous coward Silver badge

        >"If we had to ask for permission we wouldn't be allowed!"

        With all the 'background information' they have on the people making the decisions about the warrant ?

    3. JavaJester
      Stop

      Terrorists and Pedophiles and Violent Criminals (Oh My!)

      Cue the standard fearmongering that these powers are all that stand between us and a lawless hellscape. Just think of the children.

      My prediction is the government will continue to give itself a free pass on the fourth amendment search and seizure requirements, and the courts will continue to pretend it is OK. For our own good of course. And for the children.

      1. NeilPost

        Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

        Mass Illegal Surveillance in blatant contravention of a constitutional amendment - no interest.

        Narrow specious interpretations of Gun, Budget allocation and Abortion rights, yes we’ll have some of that.

        Trumps politicisation job of the SCOTUS - job done.

        1. Cliffwilliams44 Silver badge

          Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

          You could not be so stupendously wrong!

          We hold the 4th amendment in the same regard as the 2nd amendment. It is Conservatives, and in particular, Trump supporting Conservatives who want an end to this Warrantless surveillance!

          It's the Left & RINO Republicans that wants this to continue!

          Re: Abortion. It is where it needs to be. In the hands of the States. It is not Trump supporters who are pushing for a national ban, it is the RINOs. For most of us we feel, if you support abortion, vote people into your state legislature that agree with you, if you don't vote those people in. If Leftist Democrats want to abort themselves into extinction, we could care less!

          1. Anonymous Coward
            Anonymous Coward

            Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

            I think a lot of the 'progressive' Americans who hold the view that Europe is superior would be shocked if they ever actually looked at things like abortion limits over here.

            Things like activists tweeting about how happy they are to have aborted their babies as it pisses off the conservatives or that awful TV skit (I forget the person, short, blonde, very screechy voice) celebrating abortions and saying 'abortion for all' REALLY DOESN'T help their cause.

            Many people were moving from the 'no' side to the 'yeah but with restrictions' but are moving back. A friend always used to wear a pin that was a tiny pair of feet as they were vehemently anti abortion but mellowed with age.

            EDIT: It was Michelle Wolf who did the salute to abortion.

          2. Snake Silver badge

            Re: Lies, and convenient lies

            "We hold the 4th amendment in the same regard as the 2nd amendment."

            Really??!! Then why can't you "Conservatives" EVER properly quote the full Second Amendment as actually written??!

            A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed

            How come you conservatives NEVER, EVER want to talk about the clause of the "well regulated Militia" but ALWAYS and ONLY want to talk about "shall not be infringed"?? The *two* are written together, in stone. If you want your guns - and I have no problem with that! - then you should be in that 'well regulated Militia'. It's right there, in black & white.

            Oh, but you never, EVER want to. You want your guns...without any catches.

            1. Anonymous Coward
              Anonymous Coward

              Re: Lies, and convenient lies

              Unfortunately it is you missing the key points.

              The commas separate the sections of the text of the 2A. Nowhere does it say membership of the well regulated militia is a requirement. What it actually says is that to allow for that well regulated militia to be formed for the security of the free state you must allow the people to keep and bear arms.

              It specifically says 'the right of the people'. Not the right of the militia members.

              1. Anonymous Coward
                Anonymous Coward

                Re: Lies, and convenient lies

                You know that in the original copies of the 2nd amendment, half of them don't have the comma in the place that allows your interpretation?

                And if you read the debates about this amendment, you'll see that it was explicitly designed to allow slave states to form militia for hunting escaped property because they expected that the US Army wouldn't help in a manhunt?

                1. Anonymous Coward
                  Anonymous Coward

                  Re: Lies, and convenient lies

                  https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution#/media/File:SecondAmendentoftheUnitedStatesConstitution.jpg

                  It has commas.

                  And it has always said 'the right of the people'.

                2. Anonymous Coward
                  Anonymous Coward

                  Re: Lies, and convenient lies

                  >...it was explicitly designed to allow slave states to form militia for hunting escaped property...

                  I can find no such arguments in the debates at the time. Please provide examples, I wish to compare them with my readings.

                  1. Anonymous Coward
                    Anonymous Coward

                    Re: Lies, and convenient lies

                    The left always tries to make some link to slavery.

                    Not forgetting that the democratic party was the party of the KKK. The whole 'but the parties switched' is also false.

            2. Syn3rg

              Re: Lies, and convenient lies

              OK, lets go there:

              In the first clause "A well-regulated Militia, being necessary to the security of a Free State...", the word "militia" was understood at the time to mean all able-bodied male citizens committed together to defend each other from foreign invaders or a tyrannical government (should the need arise) in order to secure and defend the freedom of the states. The phrase "well-regulated" was similarly understood to be a requirement that these citizens remain armed, trained, and vigilant. don't make the mistake of applying the modern use of "regulation" onto this phrase.

              This understanding is enhanced by the second clause, which clause plainly states that citizens have the right to own and carry weapons, and the US government is prohibited from infringing on that right:

              "...the right of the people to keep and bear Arms, shall not be infringed."

              Thus, the constitution protects Americans' right to be armed and ready to defend the US and the Constitution, against all aggressors both foreign and domestic.

              1. Strahd Ivarius Silver badge
                Trollface

                Re: Lies, and convenient lies

                Got a stupid question: why is it then forbidden to assist to SCOTUS sessions while armed?

        2. Anonymous Coward
          Anonymous Coward

          Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

          SCOTUS has been politicized for far longer than Trump. He just appointed judges that swung it the other way, For decades, the Left have been fine with the judiciary handing down decisions they agreed with, and even managed to get chunks of their agenda implemented through the court's activist decisions. Now that there are jurists holding a more conservative interpretation of the constitution -- who are reversing decades-old judicial overreach -- suddenly the court itself is "illegitimate".

          On "Mass Illegal Surveillance in blatant contravention of a constitutional amendment", if you are referring the decision to not take up Wikimedia Foundation v NSA, the issue is about to be moot since Section 702 is about to expire (under which "Upstream" was supposedly authorized) .

          On "Budgeting", if you are referring to the Moore's and the KisanKraft case, they never received ans money from the company. How can someone be taxed by the US on money they don't receive?

          On the "Gun" issue, if you are referring to US vs. Rahimi, then the court has to determine if the US can restrict a citizen's constitutionally-protected rights based soley on an accusation before the matter is even determined that a trial is warranted, which is where the 6th amendment comes into play.

          1. Anonymous Coward
            Anonymous Coward

            Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

            "who are reversing decades-old judicial overreach"

            Even RBG said Roe was bad law. If she had retired the current 'problem' would not have happened. Messing with Roe was political suicide just to appease a very small number of people.

            TBH Kavanagh and ACB are f-ing useless. The other candidate that Trump had for what became ACBs seat would have been better.

          2. kmckaig

            Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

            "For decades, the Left have been fine with the judiciary handing down decisions they agreed with, and even managed to get chunks of their agenda implemented through the court's activist decisions"

            TL;DR "When we do it it's responsible law, when they do it it's judicial activism."

            1. Anonymous Coward
              Anonymous Coward

              Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

              >TL;DR "When we do it it's responsible law, when they do it it's judicial activism."

              Correcting judicial activism is not activism in itself.

              As stated elsewhere, the Left was fine with Judicial Activism, as long as the decisions helped their agenda. The moment that overreach begins to be rolled back is when those same people suddenly declare that the court is "illegitimate", "out of control", and "activist".

        3. kmckaig

          Re: Terrorists and Pedophiles and Violent Criminals (Oh My!)

          Sadly the project to transform SCOTUS into a rubber stamp for corporate interests and the religious right dates back at least forty years.

          Trump is both too late and too stupid to undertake that entire project himself.

    4. Blazde Silver badge
      FAIL

      "query applications [..] would not meet the legal standard to win court approval"

      Well, there's your problem

  2. Mike 137 Silver badge

    "a de facto ban, because query applications either would not meet the legal standard to win court approval [...]"

    A.k.a. legally unjustifiable query applications would be blocked. How AWFUL!!!

    1. blackcat Silver badge

      US law enforcement, from the very top to pretty much state and local, is broken. Not helped by some very strange laws as well as qualified immunity.

      1. NeilPost

        .., and plea bargaining converting crimes to misdemeanour’s.

        Kangaroo court justice system.

        1. scarletherring

          ..., and plea bargaining -- period.

          There's good reasons why most countries don't allow for that awful practice. A shocking percentage of people in US prisons were never actually convicted in court. And a lot of them are likely innocent but simply couldn't pay the lawyer hours they would have needed to combat the prosecutors' threats of outrageous prison terms they would seek if taken to court.

          1. Anonymous Coward
            Anonymous Coward

            >A shocking percentage of people in US prisons were never actually convicted in court. And a lot of them are likely innocent but simply couldn't pay the lawyer hours they would have needed to combat the prosecutors' threats of outrageous prison terms they would seek if taken to court.

            This is called Prosecutorial Overreach.

  3. Mark Hahn

    LEO so often confuse two very different things: their own convenience vs privacy of citizens.

    He says that getting a warrant would be too hard and slow. But that's exactly what the 4th Amendment is for!

    They make the same argument against e2e encryption: that they wouldn't be able to mass-surveil

    and then query at their convenience, without getting out of their comfortable chair. But of course, e2e is still

    subject to surveillance - just at the endpoints, not conveniently in between.

    Justice should be clean and accurate, not sloppy. Even if sloppy is easier and cheaper.

    1. Anonymous Coward
      Anonymous Coward

      Do you know how long trials take and how much they cost?

      And sometimes some woke jury doesn't automatically believe the police officer - that's why we sometimes have to .....

  4. Anonymous Coward
    Anonymous Coward

    Warrant?

    Well....all my sensitive communications have the following characteristics:

    - Phone: burner

    - Signal: Sent from an internet cafe or a hijacked local WiFi

    - Signal: triple encrypted BEFORE the message enters Signal

    So:

    - Any warrant can only be for some unknown person......not me

    - Even if the warrant gets my Signal message.......heavy lifting for snoops

    ....and I'm just an ordinary joe.....I wonder what REAL criminals are doing!

    1. Yet Another Anonymous coward Silver badge

      Re: Warrant?

      So in the UK you are automatically a criminal .

      While in the land of the free they would at least have to check your preferred version of the Magic Sky God book before they know if you are a dangerous terrorist

      1. Anonymous Coward
        Anonymous Coward

        Re: Warrant?

        > check your preferred version of the Magic Sky God book before they know if you are a dangerous terrorist

        TBH it's not usually a book they consult, it's more like one of those small strips of paper that you can take from the paint display at a home improvement store.

        1. Yet Another Anonymous coward Silver badge

          Re: Warrant?

          It's like Dickens or Austen (or Dan Simmons) - you don't actually have to read it, just have it on the shelf.

          1. Anonymous Coward
            Anonymous Coward

            Re: Warrant?

            People who have actually read it realise what a bunch of Dingo's kidneys it is.

            As someone who went to a CofE school and has read most of the Bible I am terrified when somebody tells me they get their moral compass from the Bible. I want to be a long way away from them.

            1. Anonymous Coward
              Anonymous Coward

              Re: Warrant?

              It's one of those books where the sequel isn't as good as the original.

              In the original the hero is all kick-ass, in the sequel they made him the good guy. Then he died at the end so they had to invent a whole new character for the reboot.

              It's basically the plot of the Terminator movies

              1. Anonymous Coward
                Anonymous Coward

                Re: Warrant?

                With the massive differences between the deity in the old and new testaments, I can only assume that god had some sort of mid-eternity crisis. After realizing what a murderous twat he had been, he decided to turn over a new leaf and become the god of peace and love.

                For some reason this involved sending himself/his son to be born on Earth, bum round Judea for about 30 years then get nailed to a piece of wood.

                Instead, he could have just said "OK humans, I will stop murdering you now and let you get on with your lives. No hard feelings?"

            2. Anonymous Coward
              Anonymous Coward

              Re: Warrant?

              "get their moral compass from the Bible"

              Which parts? The univocality of the Bible is not a thing. Claiming it's "God's Word" [literally, without a wink and nudge] is a sure sign of lack of comprehension capability.

              1. Yet Another Anonymous coward Silver badge

                Re: Warrant?

                Ironic that only two lots of fundamentalists claim it's the literal word of God. The version in C16 English and the one in C6 Arabic

                Of course it only really makes sense in the original Klingon

    2. Wayland

      Re: Warrant?

      In the UK they will take your computers and not give them back for months. If you won't unlock them they will simply assume you're a terrorist and prosecute you on that basis.

    3. Roland6 Silver badge

      Re: Warrant?

      Your scenario presents an interesting conundrum, namely at what point FISA section 702 and the amendment would come into effect. Because even if you were using a US phone, there would be nothing to link you or those you communicate with (regardless of actual geographical location) to identifiable US citizens (*).

      Personally, I would suggest given the pace at which technology is evolving, the FBI continues as usual and as a defence simply say they thought they were recording conversations between AI’s.

      (*) I suggest identifiable means they have unambiguously matched to a person in the US passport database.

      Aside: You can afford a steady stream of burner phones and SIMs, that is suffice to draw attention to yourself…

  5. Gary Stewart

    Read it!

    Damn that pesky Constitution.

    1. Yet Another Anonymous coward Silver badge

      Re: Read it!

      Does the constitution actually prohibit drone strikes at traffic stops ?

      1. Toni the terrible Bronze badge

        Re: Read it!

        No, a drone strike at a traffic stop is OK cos if you have been stopped you are an enemy of the styate

      2. Strahd Ivarius Silver badge
        Devil

        Re: Read it!

        At the end of the XVIIIth century, there were no drones nor traffic lights, so they are likely illegal under the originalist theory...

  6. johnrobyclayton

    Everyone should always trust all Law Enforcement.

    Otherwise, according to all their winging, they can never do their jobs.

    Civilization does not require trust of Law Enforcement bodies.

    Every Law Enforcement body in history is replete with multiple events where they have violated the trust that they are always asking for.

    Law Enforcement needs to be restricted to only taking actions that do not require anyone to trust them.

    It makes their job more difficult, this is true.

    Civilization does not require that Law Enforcement be successful in every endeavor.

    Civilization has enough redundancy, and checks and balances for Law Enforcement to experience a a significant rate of failure.

    Law Enforcement is not the only reason people have for being civilized.

    We need a significant amount of successful Law Enforcement, that is true.

    Just not as much as most Law Enforcement bodies believe.

  7. Wayland

    Is it left or right wing?

    If they are spying on Far Right Extremists and White Supremacists then that's fine. If they are spying on LGBT Woke Progressives then it's a bad thing and should be stopped.

    1. Wzrd1 Silver badge

      Re: Is it left or right wing?

      Indeed, who knew that MLK, Jr was really a right wing white guy?

      Yep, totally true and Princess Diana was really a martian.

      There is intelligent life on Earth! But, I'm leaving tonight...

      1. Anonymous Coward
        Anonymous Coward

        Re: Is it left or right wing?

        I thought it was prince charlie that was the lizard?

        1. Toni the terrible Bronze badge

          Re: Is it left or right wing?

          No its all King Charles family that are shape changing alien lizoids, at least from Queen Victoria

    2. Roland6 Silver badge

      Re: Is it left or right wing?

      Follow the money…

      The real people of interest are those involved in tax avoidance/money laundering; so they may be monitoring the communications to/from a tax haven and obviously they will gather communications between US nationals and foreign nationals about their (and their business’s - legal or not) financial transactions.

  8. BPontius

    Warrant phobia

    Some severe fear of having to return to warrants, to proving probably cause and returning to the rule of law. FBI didn't take swift action because their abuses went on for two years AFTER they were first caught abusing the FISA database. Noticed they said abuses have dropped but have not been eliminated, Congress needs to let Section 702 die, end any Presidential Orders allowing this spying and end this 22 year farce of abuses and violations.

    1. Paul Smith

      Re: Warrant phobia

      After over 20 years of this they very clearly do not *need* to change anything. If the need was real, the elected politicians that didn't change would have been replaced by elected politicians that did change.

      Regrettably, one of the consequences of democracy is that you get the politicians you deserve. The American public is (en masse) happy with lying, spying, fear and corruption and their politicians reflect that.

    2. Wzrd1 Silver badge

      Re: Warrant phobia

      The only reason a partial drop in warrantless monitoring occurred was the FBI got caught and the will to renew the act intact evaporated.

      Otherwise, business as usual would've continued unabated. History has repeatedly shown, abuses don't simply disappear willingly, the abuses are halted by intentional acts by regulators enforcing the law vigorously and leaders actually leading and prohibiting such abuses.

  9. Reginald O.

    Laws, Smaws...

    Why would something as trivial as the Constitution or a federal law passed by Congress stop FBI from warrantless searches? It never has in the past.

    What Congress doesn't know, didn't happen. Right guys?

  10. Michael Wojcik Silver badge

    Moaning spooks

    How odd. I thought Halloween was weeks ago.

    I'm very pleased, of course, that the FBI have promised that they'll pretend to consider firing someone for grossly abusing an unconstitutional law. That will fix everything, I'm sure.

  11. PyLETS
    Black Helicopters

    Warrant probably not needed

    I remember seeing evidence of large payments coming into the UK from the US in respect of GCHQ contract work a while ago see link. If the FBI/NSA can't legally do the snooping within the US themselves, there's probably nothing legally stopping them paying a competent overseas entity to do it for them.

    https://www.theguardian.com/uk-news/2013/aug/01/nsa-paid-gchq-spying-edward-snowden

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