[HN Gopher] FBI director admits they rarely have probable cause ...
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FBI director admits they rarely have probable cause for using NSA
collections
Author : repelsteeltje
Score : 286 points
Date : 2023-11-21 19:32 UTC (3 hours ago)
(HTM) web link (www.techdirt.com)
(TXT) w3m dump (www.techdirt.com)
| pipo234 wrote:
| Brilliant. I particularly liked the first comment (Anonymous
| Coward):
|
| > Wray meant:
|
| > Of course, we have probable cause.
|
| > We always have probable cause for everything we do-well, mostly
| anyway.
|
| > Well, I mean, we could maybe get probable cause, but it's too
| complicated and it takes too long.
|
| > You see, by the time we find an excuse that might double for
| probable cause, so much time will have passed, that we will all
| have died of old age.
|
| > And that's assuming we can really find an excuse in the first
| place.
| olliej wrote:
| Yeah it was such a bizarre argument that highlights just how
| unconstitutional this is: "if we need a warrant to do this, we
| wouldn't be able to do it because we'd fail the probable cause
| part". That's not a good argument dude, that's an admission that
| this program is unconstitutional.
| xt00 wrote:
| The acid test for this is, if its OK for the FBI to spy on you as
| a citizen, then cool, we need the right to spy on the FBI agent
| and his family members -- why does he get to spy on me and my
| family members when there is zero reason for them to do that? I
| don't have anything to hide, and neither should he, so its all
| kosher right?
| soulofmischief wrote:
| You should be able to do just about anything they claim is
| legal without needing probable cause or a warrant.
|
| I don't know what America Chris Wray is from, but in my
| America, law officers should not get any special treatment when
| it comes to this. The same arguments that would constitute your
| actions as stalking should apply to the FBI, if they are
| engaging in the same set of behaviors while operating outside
| of any special judicial framework such as a warrant.
| phpisthebest wrote:
| The single greatest problem we have in government today is
| the fact that over the years we have added more and more
| exclusions, exemptions, and privileges for "law enforcement"
|
| Rules for thee but not for me is the height of government
| tyranny, and today that is at all levels of governance from
| something as simple as parking enforcement all the up to
| lethal force
|
| No government agent should be exempt from the law, no
| government agent should have special rights.
| blooalien wrote:
| > "The single greatest problem we have in government today
| is" ...
|
| Well, *one* of the greatest problems, anyway... Another
| similar related one is most of our politicians bein' pretty
| much fully "bought and paid for" by corporate interests,
| and money / power bein' _far_ more important to them than
| human lives.
| rightbyte wrote:
| National insecurity something something. You know. Some are
| more equal than others.
| Teever wrote:
| I agree with this one hundred percent. I wish there was some
| sort of organization that coordinated OSINT efforts on law
| enforcement.
|
| https://en.wikipedia.org/wiki/Sousveillance
| kenjackson wrote:
| I think I believe the problem isn't lack of privacy, buts
| unilateral privacy. I'd be willing to get rid of most of my
| privacy, iff everyone else did too. But when you're a target
| and you don't even know who is looking, that feels like the
| problem.
| li2uR3ce wrote:
| FBI: See the problem we face is finding a needle in a haystack.
|
| Morons in congress: Oh, we're really sorry to hear that, what
| should we do?
|
| FBI: Give us more hay for the stack.
| EMCymatics wrote:
| It's just so slow
| Terr_ wrote:
| On the subject of FBI/NSA/CIA insincerity, that makes me think of
| various post-9/11 debates often involving "ticking bomb"
| Hollywood scenarios.
|
| I'd like to reiterate that any kind of "OMG there's no time we
| must stop the NYC WMD ASAP" scenario _already_ has a special
| exception route: Just commit the necessary spying /theft/torture
| crime, and plan for a Presidential pardon after explaining the
| extraordinary circumstances that totally justified your action.
|
| If they aren't willing to put their own skin in the game, then
| the situation cannot be as clearly dire as they claim.
| kenjackson wrote:
| That's insincere. Even if you truly believe a catastrophe may
| happen you may not be willing to risk life in prison because
| the President doesn't like your bosses boss.
| nofunsir wrote:
| NSA analyst?
| coldtea wrote:
| You really think in that case they'd be bound by the
| President's likes and dislikes? If the President or whatever
| court didn't let them out, there would be riots in the
| streets.
| giantg2 wrote:
| Nope, most successfully stopped attacks are secret. Nobody
| would even know.
| Quekid5 wrote:
| There are or _should be_ at least (bound by national
| security related laws) oversight review committees and
| stats reporting...
|
| ... but of course it depends on the standard for what
| 'prevented' means. De-radicalized a potential terrorist,
| does that mean a terror attack was stopped/prevented.
|
| It's quite complicated in practice, alas.
| denkmoon wrote:
| There are already riots in the street and it doesn't
| influence presidential decisions.
| ofslidingfeet wrote:
| Oh no the poor intelligence agents who might be victims of
| corruption but unable to do anything about it. ;_; ;_; ;_;
| realce wrote:
| The proof is in the pudding! Since there have been no horrible
| events since the ultra-law was enacted, it must be working!
| coldtea wrote:
| No polar bears in Arizona either since I installed my anti-
| polar-bear device there. Must be working!
| CoastalCoder wrote:
| I'm sure it would end badly, but sometimes I fantasize about the
| U.S. citizens having a LEO that actively investigates /
| prosecutes government officials who violate the constitution.
| underseacables wrote:
| I could not think of something more that America needs. The
| government accountability office publishers reports all the
| time about government waste and malfeasance, but it is
| consistently, dare I say, pointedly, ignored. Having a separate
| independent agency, cast with investigating and prosecuting
| crime and criminals within the government itself would be
| amazing.
|
| Same with congress.
| Eddy_Viscosity2 wrote:
| This would be good, right up until it itself becomes as
| corrupted as the entities is prosecutes. The problem is that
| 'unconstitutional' is in the eye of the beholder. Take for
| example the classic "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.". Does
| this mean all gun control laws are unconstitutional or does
| it mean that gun control laws are implicit in what it means
| to be a 'A well regulated Militia'; the army for example has
| a ton of rules about guns. Good arguments can be made for
| either of these views (and others). Interpretation is
| everything.
| Clubber wrote:
| >or does it mean that gun control laws are implicit in what
| it means to be a 'A well regulated Militia'
|
| People who use this argument are disingenuous because they
| wouldn't argue the same thing about press being limited to
| printing presses or speech being limited to the spoken
| word.
| coldtea wrote:
| Perhaps because "the press" means journalism in general
| any way you cut it and you need to be very disingenuous
| to say otherwise as the spirit of the terms is obvious.
|
| Whereas "well regulated militia" absolutely doesn't mean
| "random redneck with a gun fetisch" - the spirit is also
| obvious here.
| pauldenton wrote:
| People say the second amendment was made in the era of
| muskets so obviously an automatic rifle isn't what the
| founders were talking about While the first amendment was
| made in the era of newspapers, so obviously the right to
| speech doesn't extend to Telegrams, Radio, TV, or Digital
| communication
| SV_BubbleTime wrote:
| First off, you are too late for any comment about the text
| to hold any water. 2008 Heller and 2010 McDonald settled
| that. It is an individuals right to keep and bear, not
| collective, never was. One term that came from Heller was
| "dangerous and unusual", make note of the and.
|
| Next, well regulated never meant lots of regulations. It
| meant well trained and in good working order. 1800s Oxford
| dictionary.
| comrh wrote:
| The way the Court current works its just settled until
| the next turn over in court make up.
| jfengel wrote:
| The court make-up isn't expected to change for decades.
| The previous President appointed three young members who
| will be there for a very long time, adding to three
| existing members. It will be many, many years before the
| composition of the court is likely to shift
| significantly.
| orwin wrote:
| I'm pro-gun ownership but European. To me you're
| especially right about that part
|
| > It meant well trained and in good working order.
|
| In WV, I've seen people who barely knew how to handle
| hunting rifles, handle semi-automatique rifles. It's
| terrifying. Any hunter in my country seeing people handle
| firearms like those two would've reported them to have
| their license revoked and firearms locked until further
| training. (not that hunting permit/license are a big
| thing in the area btw, I think a lot are hunting kinda
| illegaly, but well, the woods are shared, and some really
| need basic training. ).
| quesera wrote:
| "Settled" does not mean what you think it means.
|
| There are good arguments that recent jurisprudence is not
| even justified from an Originalist perspective.
|
| This is neither the time nor place, but your confidence
| is unfounded.
| SV_BubbleTime wrote:
| You are allowed to be mad at a ruling you cannot change.
| Just don't drag me into your feelings. Maybe it is
| overruled someday, that's pretty rare. Maybe you can
| point to another amendment that made it almost 250 before
| being interpreted to say something, it does not?
| quesera wrote:
| I'm not mad at all. I have no feelings on the issue
| whatsoever, honestly.
|
| But you're also wrong if you think there's meaningful
| precedent.
|
| And BTW the entire Bill of Rights is the same age. All
| are subject to interpretation by the sitting Court.
| jfengel wrote:
| "Settled" means that it's never, ever going to change,
| because the composition of the court isn't going to
| change. At least not during my lifetime, and probably not
| yours.
|
| It doesn't matter whether it's "justified". The
| Constitution means what five people on the Court say it
| means. And if that comes from talking to James Madison on
| the ouija board, the rest of us have to live with it.
|
| In that sense, it's "settled". And our daily school
| shootings are just a fact that we have to accept.
| quesera wrote:
| > _" Settled" means that it's never, ever going to
| change, because the composition of the court isn't going
| to change. At least not during my lifetime, and probably
| not yours._
|
| I am confident that the composition of the court will
| change, during my lifetime. I suspect yours as well.
|
| FWIW, I do have a strong opinion on school shootings, of
| course. I am not comfortable with the assertion that
| there's something uniquely broken about Americans that
| means we can't have RTKBA. But if there is, I'm not
| confident that eliminating 2A would resolve the real
| problem.
| RajT88 wrote:
| In terms of setting precedent, this is accurate.
|
| > It is an individuals right to keep and bear, not
| collective, never was.
|
| Prior to 2008 it was. New SCOTUS precedent doesn't
| magically change the past.
|
| > Next, well regulated never meant lots of regulations.
| It meant well trained and in good working order. 1800s
| Oxford dictionary.
|
| The 1766 definition reads:
|
| "Properly controlled, governed, or directed; subject to
| guidance or regulations."
|
| Textualism/Originalism is just cherry picking things like
| this to justify the decision the majority was going to
| make anyways, which is why someone sought out just the
| right definition from just the right source from decades
| after the drafting of the 2nd amendment.
|
| It's weird that they had to resort to this, because you
| could totally make a convincing case for private firearm
| ownership based on state militias and how they evolved.
| There's room for guaranteeing the individual ownership
| right under the Militia act of 1903 - any male aged 17 to
| 45 is eligible for "unorganized" state militia service
| unconnected to the various state-level military branches.
| That apparently is not their desired outcome, so one
| presumes this is why they did not pursue this avenue.
| underseacables wrote:
| Interpretation is an issue, just look at the way President
| Biden, and President Trump are being treated with regards
| to retention of classified documents. One is being
| prosecuted, the other is not. That's a very broad and
| public example, but the party in power typically does not
| prosecute its own.
| ikiris wrote:
| Do you think this is a good faith argument? What might be
| differences in these situations that aren't based on
| simple "other party bad"?
| bdzr wrote:
| One turned over the classified documents.
| bunabhucan wrote:
| One is being charged with _obstruction_ and retaining
| documents. There 's no evidence of obstruction for Biden
| or Pence. If either of them told their attorney to "hide
| or destroy" documents then they would be receiving the
| same treatment.
| appleskeptic wrote:
| This would be awful. Theft and bribery are already prosecuted
| aggressively. If anything, too much. It's gotten to the point
| that high government officials can't afford to _be_ lobbied.
| Here they are, some of the most powerful people in the world,
| paid barely enough to live an hour drive away from DC, having
| to spend a fair bit of their personal income to go to lunch
| and dinner with leaders of private industry.
|
| As for criminalizing "waste", you start to get dangerously
| close to criminalizing politics itself. Then it just becomes
| about controlling DOJ and using it to go after your enemies
| (this is already too true).
|
| The better thing to do would with regards to intelligence
| agency abuses would be to have more review of the decisions,
| mandatory discipline of rulebreakers, and prosecution of
| specific crimes committed for egregious cases. No need to
| generally criminalize every time a government official makes
| a bad judgment call.
| superb_dev wrote:
| > It's gotten to the point that high government officials
| can't afford to be lobbied.
|
| This is just nonsense, most members of congress take lobby
| money.
|
| https://www.opensecrets.org/federal-lobbying/top-recipients
| jauer wrote:
| Members of congress are a small subset of government
| officials.
|
| That they get away with corrupt behavior doesn't mean
| that people in the civil service should have to be
| anxious about trivial things. If a government employee
| can be influenced by something as minor as a pen or
| lunch, they are in the wrong line of work.
| SV_BubbleTime wrote:
| > It's gotten to the point that high government officials
| can't afford to be lobbied.
|
| Of all the sad things I've read today, this one is surely
| the saddest. Good thing it isn't based on a reality I have
| observed... where do you think those billions "to" Ukraine
| are really going?
| jpk wrote:
| You seem to be arguing that we have a system where theft
| and bribery are _necessary_ in some way, and therefore we
| shouldn 't prosecute it aggressively. Wouldn't we rather
| reform the system such that it makes theft and bribery less
| attractive?
| tehwebguy wrote:
| > It's gotten to the point that high government officials
| can't afford to be lobbied.
|
| Good! But also, not true!
| underseacables wrote:
| Your comment brought to mind the number of IRS employees
| who are delinquent on their taxes. I think it really comes
| down to trust. You say that the government is already
| investigated enough, but I would contend that it's really
| the government investigating itself. If there is a
| separate, independent agency that investigates government
| and employee malfeasance, then at least there can be some
| check, accountability, and maybe transparency.
|
| I can understand your focus with intelligent agency
| abusive, but I think the problem is much more systemic, and
| far greater than simply the intelligence agencies. People
| who work in the public trust should be held to a higher
| standard.
|
| _" According to the FY 2021 FERDI Annual Report, IRS
| employees had a 1.35 percent delinquency rate, compared to
| 4.93 percent for civilian workers throughout the Federal
| Government." _
|
| That number should really be zero.
| yieldcrv wrote:
| Developed nations laugh at our checks and balances, because we
| believe in them
|
| bUt aT LeAst wE cAN tALK aBoUt It
| Throw10987 wrote:
| Believe me it is not laughing in a good way, it is more a
| nervous laughter with a permanent sinking feeling in the
| stomach kind of way.
|
| The collective 'we' developed nations have our own set of
| problems, but broadly speaking from time to time self correct
| away from polarisation to hopefully enough of a degree.
|
| A unique kind of leadership needs to be allowed to grow in
| America to stear a less polarised course.
| yieldcrv wrote:
| I know, theyre laughing at us because we think our
| compromisestitution is a feature
| photochemsyn wrote:
| It's certainly possible, but the U.S. Supreme Court has been
| working against the exposure of such crimes by government
| officials:
|
| https://whyy.org/articles/temple-professor-suing-fbi-for-wro...
|
| > "Xi's team has a very high legal hurdle to clear because
| recent Supreme Court decisions make it very difficult to sue
| federal officials for damages for violating constitutional
| rights."
| advisedwang wrote:
| I'm not sure having police investigating our elected officials
| is such a good thing. If you look at corruption investigations
| of high level officials in history, they are very frequently
| partisan attacks. For example, the investigation into Lula da
| Silva turned out to have been driven by a group of right wing
| judges and prosecutors that had his ouster as a goal, not
| justice.
|
| It's not even a question of whether corruption happens! Of
| course it does. E.g. maybe Lula did some kind of wrongdoing.
| However frequent and highly publicized corruption
| investigations put the power in the hands of police,
| prosecutors and judges and takes it away from democratic means.
| Frankly, I'd rather have a little bit of corruption than allow
| police to say who is an acceptable leader.
|
| Part of the issue is that there is a lot of grey area in what
| even counts as corruption. What counts as "violating the
| constitution" is even greyer, especially in the US where the
| constitution itself is short, vague and poorly phrased leaving
| decisions on what is constitutional to be a political question
| in itself.
| mchanson wrote:
| I would prefer a government that investigates all the bad acts
| of LEOs.
|
| I would prefer a government that investigates the rich.
|
| I would prefer a government that investigates wage theft.
| _heimdall wrote:
| I would prefer a government that enforces the law blindly.
| Our legal system is fundamentally broken as long as we
| consider wealth, career, politics, personal connections, etc
| before filing charges and trying a case.
| matheusmoreira wrote:
| It will be fine so long as there's no corruption. But if
| there's even a hint that one group is getting persecuted...
| candiddevmike wrote:
| Wasn't that supposed to be the fourth estate?
| ssalka wrote:
| What's hilarious is that in an ideal world, the FBI is exactly
| the organization that should be doing this. Two of the bureau's
| top priorities are 1) Combat public corruption at all levels,
| and 2) Protect civil rights
| _heimdall wrote:
| We could get really far simply by changing the incentives of
| our legal system.
| datadrivenangel wrote:
| "A warrant requirement would amount to a de facto ban, because
| query applications either would not meet the legal standard to
| win court approval"
|
| I hope that we get that de facto ban. It would be good for
| society.
| progne wrote:
| The fourth amendment is a de jure ban, and shouldn't a de jure
| ban be a de facto ban for law enforcement? The lawful way to
| make it de facto is to make it de jure first by repealing that
| pesky amendment.
| datadrivenangel wrote:
| De jure, de jure is de jure, de facto, de jure is not de
| facto?
|
| To absolutely mangle paraphrasing yogi berra's quote about
| the difference between theory and practice.
| tehjoker wrote:
| The US government flouts the constitution constantly, for
| example the UN charter which according to the constitution,
| treaties are part of the supreme law of the land. It's a
| security state designed to squelch popular resistance to a
| global imperial project (that is currently floundering).
| nyc_data_geek1 wrote:
| This is literally what warrants and probable cause are for.
| Really shocking degree of impunity on display that he would
| have the balls to say this out loud, in public, on the record.
| candiddevmike wrote:
| Who watches the FBI director?
| nyc_data_geek1 wrote:
| Congress? LOL
| quadcore wrote:
| That is very calculated I think. If people let him get away
| with saying it, that's it, it's done, it's banalized, it's
| normal.
|
| That's a technique often used by toxic people.
|
| (Disclaimer: im no american)
| skygazer wrote:
| Why do you have to disclaim that? It's nothing to be
| ashamed of. I have friends that are also not American, and
| I'm even okay being seen with them in public.
| smegsicle wrote:
| watch as mass shootings go down when they have a harder time
| profiling patsies
| SV_BubbleTime wrote:
| It's a good thing an organization like this doesn't have the
| power to act politically.
| AnimalMuppet wrote:
| /s, I presume...
| smeeth wrote:
| A clarification, because I'm seeing a lot of misunderstanding:
|
| This is about whether or not the FBI needs a warrant to see
| information that was already collected legally by another part of
| the gov't.
|
| This is not about whether or not the gov't can collect this
| specific data in the first place, everyone involved seems to
| agree they do.
| jfengel wrote:
| Correct. There is a strong dividing line between those two
| organizations, resulting from some very bad misbehavior by the
| FBI and CIA in the 1950s and 60s. The Foreign Intelligence
| Surveillance Act was set up to allow some agencies to collect
| information on non-Americans using techniques they'd never
| allow on citizens, while other agencies can use a more
| restricted set of techniques on Americans.
|
| After 9/11 they breached that somewhat, because of a (not
| entirely well-founded) belief that the separation kept them
| from preventing the attack.
|
| Those are the two ends of the spectrum being debated here:
| harassing Martin Luther King on the one side, and 9/11 on the
| other. No compromise is going to make everybody happy. In fact,
| no matter what, it's going to make everybody mad.
| ssnistfajen wrote:
| but but gais hear me out, TikTok is the REAL problem here! /s
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