When the FISA Court becomes the Exotic Surveillance Shop

I’m still updating yesterday’s post collecting everything we might know about the government’s demand to Lavabit that led Ladar Levison to shut it down.

I’d like to consider the implications of Levison’s hint that the order or warrant he got came not solely from the FBI — as a National Security Letter would — but from the FISA Court.

LADAR LEVISON: I think it’s important to note that, you know, it’s possible to receive one of these orders and have it signed off on by a court. You know, we have the FISA court, which is effectively a secret court, sometimes called a kangaroo court because there’s no opposition, and they can effectively issue what we used to consider to be an NSL. And it has the same restrictions that your last speaker, your last guest, just talked about.

(The restrictions in question pertain to the gag and risk of prison that came with the National Security Letter Nicholas Merrill received.)

Several of us on Twitter today brainstormed what kind of FISA order this might involve: possibilities include using a physical FISA search to get keys from Lavabit’s users, using the Internet dragnet precedents to use FISA’s Pen Register/Trap and Trace provision to get the keys, treating the keys as “tangible things” under Section 215 and demanding them that way, or possibly just a traditional electronic surveillance warrant. They also might have issued a protection order requiring Lavabit to archive things that users otherwise might be able to delete, as they have in a prior case.

But the implication is that all happens under the FISA Court and not (as, for example, the government’s demand for Twitter information on WikiLeaks associates did in that investigation) the Eastern District of VA court.

And that, to me, seems as problematic as the gag and the apparently exotic request.

Consider: presumably the target of this order is Edward Snowden and alleged accomplices of his, though hints about the order suggest the government demanded information on all of Lavabit’s users to get to the information on Snowden. Snowden has already been charged in a criminal complaint (which has been released, but is still not docketed). Snowden has been charged with several crimes, not just probable cause that he’s an agent of a foreign power (and while many in government have been trying to claim he’s a defector to Russia since those charges, at the time he was charged there was no hint of his being a foreign agent).

In other words, this is now and seems to have always been a criminal investigation, not a foreign intelligence investigation (and it didn’t start out as an old-style Espionage investigation, which would have been the appropriate application with Snowden to get into a foreign intelligence court).

So why is it in the “Foreign Intelligence Surveillance Act” court (if in fact it is)? Why isn’t it in a Title III Court, with a nice hefty gag attached to it that would serve the same purpose as the legal gag tied to FISA orders?

Hell, why is it gagged anyway, since it had been publicly reported that Snowden was a Lavabit customer, and since the government itself has leaked that it is investigating and has charged Snowden?

The obvious answer is likely because the FISA Court is where the exotic precedents live — wacky interpretations of Pen Register/Trap and Trace statutes to allow bulk collection of stuff that might loosely be called Internet metadata or of the word “relevant” to mean “whatever the government wants it to mean.”

And that, it seems to me, presents a troubling new interpretation for the “significant purpose” language in FISA, which was passed after 9/11 to allow the government to use information collected under the guise of foreign intelligence for criminal prosecution purposes. The idea, then, was that the court is supposed to serve primarily as a foreign intelligence shop with the criminal use being incidental.

But the very vague outlines of the Lavabit demands appears to suggest the government has reversed that, using the FISA Court for investigative purposes that might easily be accomplished under Title III, except that the government is relying on exotic precedents that only exist in the secret FISA Court.

With so much secret about this order, we can’t be sure, but it appears the government is using the FISA Court for this exotic theory when the appropriate venue should be a traditional Article III court.

You know? Courts that might find such exotic theories outrageous and might disclose the outlines of it to Snowden if he were ever put on trial.

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27 replies
  1. peasantparty says:

    Exotic or Traditional, it really doesn’t matter anymore. If Lavabit chose not to participate, and continued biz as usual the CEO would be imprisoned like the CEO of Qwest.

    Why are Judges kowtowing to the Government? The Patriot ACT and AUMF, along with the NDAA will give you all those answers.

  2. Bustednuckles says:

    The fact that they resorted to using the FISA court as a legal fig leaf to begin with tells me that they knew up front that this whole thing didn’t pass the smell test.

  3. Peterr says:

    The obvious answer is likely because the FISA Court is where the exotic precedents live — wacky interpretations of Pen Register/Trap and Trace statutes to allow bulk collection of stuff that might loosely be called Internet metadata or of the word “relevant” to mean “whatever the government wants it to mean.”

    The FISA Court meets Through the Looking Glass, doesn’t it, with Humpty Dumpty, Esq representing the government:

    “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”

  4. Peterr says:

    @Bustednuckles: One of these days, that’s going to be a big headache for them.

    They’re going to have built up ream upon ream of secret opinions in the FISA court, and some case is going to come up in an Article III court that they’re just going to go nuts over, because they’ve got a precedent in secret that will make their case — and they won’t be able to cite it.

    The clash is coming between secret rulings and open decisions. I don’t know when, or over what case, but sooner or later, these two are going to run smack into each other.

  5. peasantparty says:

    @Peterr: http://www.scn.org/ccapa/pa-vs-const.html

    Also:

    http://www.scn.org/ccapa/pa-vs-const.html

    And here is the link outside the Library of Congress:

    http://en.wikipedia.org/wiki/USA_PATRIOT_Act

    Although the sections and articles regarding Judges and Right to Council have made themselves clear, we still have a system that supports the Judicial. Judges have been threatened with losing their jobs and ability to practice law if they do not succumb to the Patriot Act rulings. In other words, the Patriot Act officially “SUSPENDS” the Constitution and the Bill of Rights. The Govt. just doesn’t want the public to be fully aware of it yet.

  6. orionATL says:

    well, well. what do we have here?

    nothing more than more and abundant evidence that the fisa court offers no protection to the nation from abuse of laws and criminal processes by our national police and the courts.

    just as does the illegal misuse of nsa in the ’70’s.

    just as does the inapropriate, unnecessary, and probably unconstititional fbi spying on martin luther king (and thousands of others).

    the only difference between now and earlier is that now the electrons and magnetic fields do silent, undetectable spying, rather than g-men peering around corners, climbing phone poles, and taking pictures from the building across the street.

    now the courts actively conspire with our national police to hide police conduct and tactics.

    there is no middle ground on this matter of secret spying and secret authorization of spying.

    any government will abuse any power if it is allowed to proceed in the dark.

    the nsa must be broken up, the fisa court replaced by a public court, the patriot act, the fisa “improvement” act, and the telecomm get-out-of-jail-free act must be rescinded by the congress.

    it was the congress, after all, which opened this pandora’s box in successive fits of panic over losing their co gressional seats.

    for the life of me, i cannot understand why president obama and attorney-general holder have allowed this spying to metasticize as it has. what is the gain they see? why not shut down this dangerous politicizable policing apparatus before it can be seriously abused, as it certainly will be?

  7. orionATL says:

    well, well. what do we have here?

    nothing more than more and abundant evidence that the fisa court offers no protection to the nation from abuse of laws and criminal processes by our national police and the courts.

    just as does the illegal misuse of nsa in the ’70’s.

    just as does the inapropriate, unnecessary, and probably unconstititional fbi spying on martin luther king (and thousands of others).

    the only difference between now and earlier is that now the electrons and magnetic fields do silent, undetectable spying, rather than g-men peering around corners, climbing phone poles, and taking pictures from the building across the street.

    now the courts actively conspire with our national police to hide police conduct and tactics.

    there is no middle ground on this matter of secret spying and secret authorization of spying.

    any government will abuse any power if it is allowed to proceed in the dark.

    the nsa must be broken up, the fisa court replaced by a public court, the patriot act, the fisa “improvement” act, and the telecomm get-out-of-jail-free act must be rescinded by the congress.

    it was the congress, after all, which opened this pandora’s box in successive fits of panic over losing their co gressional seats.

    for the life of me, i cannot understand why president obama and attorney-general holder have allowed this spying to metasticize as it has. what is the gain they see? why not shut down this dangerous politicizable policing apparatus before it can be seriously abused, as it certainly will be?

  8. orionATL says:

    well, well. what do we have here?

    nothing more than more and abundant evidence that the fisa court offers no protection to the nation from abuse of laws and criminal processes by our national police and the courts.

    just as does the illegal misuse of nsa in the ’70’s.

    just as does the inapropriate, unnecessary, and probably unconstititional fbi spying on martin luther king (and thousands of others).

    the only difference between now and earlier is that now the electrons and magnetic fields do silent, undetectable spying, rather than g-men peering around corners, climbing phone poles, and taking pictures from the building across the street.

    now the courts actively conspire with our national police to hide police conduct and tactics.

    there is no middle ground on this matter of secret spying and secret authorization of spying.

    any government will abuse any power if it is allowed to proceed in the dark.

    the nsa must be broken up, the fisa court replaced by a public court, the patriot act, the fisa “improvement” act, and the telecomm get-out-of-jail-free act must be rescinded by the congress.

    it was the congress, after all, which opened this pandora’s box in successive fits of panic over losing their co gressional seats.

    for the life of me, i cannot understand why president obama and attorney-general holder have allowed this spying to metasticize as it has. what is the gain they see? why not shut down this dangerous politicizable policing apparatus before it can be seriously abused, as it certainly will be?

  9. peasantparty says:

    I was involved in a Project at FireDogLake several years back. My part of the project was on certain sections of the Patriot Act. I went hair on fire over special sections back then, especially 119.

    Here is the copied overview from Wikipedia:

    Various provisions allowed for the disclosure of electronic communications to law enforcement agencies. Those who operate or own a “protected computer” can give permission for authorities to intercept communications carried out on the machine, thus bypassing the requirements of the Wiretap statute.[39] The definition of a “protected computer” is defined in 18 U.S.C. § 1030(e)(2) and broadly encompasses those computers used in interstate or foreign commerce or communication, including ones located outside the United States. The law governing obligatory and voluntary disclosure of customer communications by cable companies was altered to allow agencies to demand such communications under U.S.C. Title 18 provisions relating to the disclosure of electronic communications (chapter 119), pen registers and trap and trace devices (chapter 206) and stored communications (121), though it excluded the disclosure of cable subscriber viewing habits.[40] Subpoenas issued to Internet Service Providers were expanded to include not only “the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber” but also session times and durations, types of services used, communication device address information (e.g. IP addresses), payment method and bank account and credit card numbers.[41] Communication providers are also allowed to disclose customer records or communications if they suspect there is a danger to “life and limb”.[42]

    Title II established three very controversial provisions: “sneak and peek” warrants, roving wiretaps and the ability of the FBI to gain access to documents that reveal the patterns of U.S. citizens. The so-called “sneak and peek” law allowed for delayed notification of the execution of search warrants. The period before which the FBI must notify the recipients of the order was unspecified in the Act—the FBI field manual says that it is a “flexible standard”[43] — and it may be extended at the court’s discretion.[44] These sneak and peek provisions were struck down by judge Ann Aiken on September 26, 2007 after a Portland attorney, Brandon Mayfield, was wrongly jailed because of the searches. The court found the searches to violate the provision that prohibits unreasonable searches in the Fourth Amendment to the U.S. Constitution.[45][46]

  10. peasantparty says:

    @peasantparty: Section 121 at that time was to cover what you watch on TV. I do not have the updated amendments on the renewed versions Congress has approved, but I have read several trustworthy articles that this is now being done.

    If you see me asking if your TV is watching you, I really MEAN IT!

  11. orionATL says:

    any bets against the proposition that the nsa special operations group and the fisa court operate hand-in-glove.

    it takes no more than a sophistical legal rationalization (see yoo, john) to turn a foreign intelligence matter into a domestico-foreign intelligence matter.

    the nsa has clearly broken out of the “foreign intelligence only” fence congress put around it.

    but our prez yammers on about “transparency”, and “openness”, and court “oversight” and “checks and balances”?

  12. grayslady says:

    Something still doesn’t make sense here. As I understand it, if you receive a NSL, you can’t even consult an attorney about it. Yet Lavison appeared on Democracy Now with his attorney. Also, as I understand, once you receive a NSL, you can’t destroy records before responding (which may be why Silent Circle went dark immediately after hearing about Lavabit). Yet Lavison shut down immediately without allowing storage access to his former clients. Ergo, Lavison probably didn’t receive a NSL. But FISA court? That would be an incredible stretch, since it sounds like a fishing expedition rather than having hard evidence of foreign communication relating to an investigation of overseas terrorism.

  13. Peterr says:

    @Arbusto: See, there’s the rub. The process only works if it ALL is behind closed doors, from start to finish.

    The case I’m thinking of is one that would be filed by an ordinary US Atty in an ordinary court, but then the FISA folks hear about it and start beating their heads against their desks.

    FISA Court cases are one-sided — no attorney for the accused. But if the accused already has an attorney, and it’s before a judge, the judge has to let the attorney see the opinions cited by the prosecution. Either that, or the prosecution loses.

  14. orionATL says:

    @Peterr:

    “or the prosecution loses”

    this era’s doj prosecutors do not tolerate losing nor for that matter even a failure to charge. if it looks like they might encounter difficulty, they change the rules or the interpretation of the rules or claim a desperate need for secrecy in toto, for withholding information that must not be disclosed, or for redacted disclosure.

    there has never been a prosecutorial stacked deck like the stacked decks contemporary doj prosecutors deal from.

  15. Arbusto says:

    @[email protected]:

    Not having an attorney isn’t a problem as soon as FISA starts trying cases. FISA will appoint an attorney with appropriate clearances and approval by the DoJ and Clapper. No need to bother with a trial jury or by one’s peers. It’s in the redacted white paper, I’m sure.

  16. earlofhuntingdon says:

    How about that? Being investigated by two federal courts for the same “crimes” without ever being tried, or requiring the government to disclose its case or how it developed the “evidence” it claims would justify a conviction.

    Methinks Mr. Obama and his Dept. of InJustice would be happier if Mr. Snowden forever remained outside their formal legal grasp (renditions and secret jailing excepted). It seems to make it easier for them to expand the use of unconstitutional powers, while claiming to fulfill their oaths to uphold the Constitution and faithfully execute the law.

  17. Mindrayge says:

    The Lavabit situation would go beyond Snowden. Lavabit had been pursued by the government for e-mail related to child pornography for a case out of Maryland. It very well could be related to the TOR site in Ireland being taken down – after which TOR maintainers came across the IFRAME exploit that some had tied back to SAIC in Virginia. In that Ireland case the operator of the servers in Ireland was arrested pursuant to an active case out of Maryland.

    Like anything else, there is probably more to the Lavabit story than has been disclosed so far.

  18. earlofhuntingdon says:

    “Child pornography”. The go-to allegation when a government wants to discredit a source. Even if true, it’s usually touted in an attempt to distract from more important underlying facts, to exclude those from public debate.

  19. yeskld says:

    I’ve been wondering what happens if one ignores a FISA court order. Doesn’t the contempt charge get adjucitated in an Article 3 court? Is that a way out of this box?

  20. Bill Michtom says:

    @orionATL “i cannot understand why president
    obama and attorney-general holder have allowed this
    spying to metasticize as it has. what is the gain they
    see?”

    Really? How about continued dictatorial power?

  21. geoschmidt says:

    I revere you from times past… I have a good opinion of you sir!

    I am not in any kind of way supportive of pedophilc / that is off the chart pardner!!

  22. StevenDMcKnight says:

    You have to look at how Lavabit encrypted the stored messages, to find out how FBI/FISA may have ordered.

    The *correct* way to do it, would be to have Lavabit scan for plaintext messages (why waste cycles on already PGP’d email) and then run an encryption process, using ONLY the users public key.

    PGP offers an option (that most people use for personal communication) to “encrypt to self”…so that you can read past messages that you sent. This would be a very bad option to enable for this type of operation.

    FBI/FISA may have ordered Lavabit to start adding itself as able to decrypt messages, and then demanded the passphrase to the private key.

    You can compile GPG from source, and *remove* the encrypt to self code (a smart thing to do), but you are still hosed being in the USA, as you can be ordered to switch to a version that allows encrypt to self, and then demand the key.

    Yay freedom.

    SDM

  23. Gary T says:

    @yeskld:

    That is an amazing idea.
    In order to prove you violated the NSL, they would have to reveal what the letter said, and what you said to violate it.
    It would appear to bring the whole thing out in the open. Only question is, what is one facing if they did do that?

  24. Mellvis says:

    “for the life of me, i cannot understand why president obama and attorney-general holder have allowed this spying to metasticize as it has. what is the gain they see? why not shut down….?

    Do we dare start to wonder if there really has been a military coup of sorts, of our government, and those two have nothing to say about it to whoever the ‘new commander’ is? Tinfoil? Could be. But we are simply not so exceptional that shit like that couldn’t happen to us…

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