No day in court: US Foreign Intelligence Surveillance Court rulings will stay a secret

Eight years after Snowden, you'll never know how much they spy on you…


The US Supreme Court this week refused [PDF] to hear a case that would have forced the country's hush-hush Foreign Intelligence Surveillance Court (FISC) to explain its justifications for giving the Feds the right to help themselves to bulk amounts of the public's data.

The FISC decides who the Feds can follow according to the Foreign Intelligence Surveillance Act.

In a blistering dissent filed on Monday [PDF], Justices Neil Gorsuch and Sonia Sotomayor asked why the court would decline to review a case with "profound implications for Americans' privacy and their rights to speak and associate freely."

The case was brought by the American Civil Liberties Union (ACLU), which had tried to use the high court to review lower court rulings on the public's First Amendment right to see federal authorities' legal justification for bulk data collection. The collection period in question stretches over the 12 years before former NSA sysadmin Edward Snowden brought the practice to light as well as two years after he did so (2001-2015). But the Supremes refused to certify the case.

The seven other justices, as legal news site Law360 pointed out, provided no explanation.

Justices Gorsuch and Sotomayor wrote:

The government does not merely argue that the lower court rulings should be left undisturbed because they are correct. The government also presses the extraordinary claim that this Court is powerless to review the lower court decisions even if they are mistaken.

On the government's view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.

Patrick Toomey, senior staff attorney at the ACLU's National Security Project, said in a statement this week: "By turning away this case, the Supreme Court has failed to bring badly needed transparency to the surveillance court and to rulings that impact millions of Americans. Secret court decisions are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives."

Since the USA Freedom Act was passed in 2015 – as a response to the backlash from the Snowden revelations – FISC has been forced to publish statistical information annually, but the ACLU has pointed out that any review of FISC behind-closed-doors decisions is solely "conducted ... by executive branch officials, not a court."

According to FISC's latest report for 2020 [PDF], it denied only 13 of 979 applications – approving over 98 per cent of surveillance applications by the Secret Service. If you include applications "partly denied/amended", this dips to over 96 per cent.

But saying that, it might not make much difference – the NSA long ago admitted that it had lost track of what it was and wasn't allowed to do. The Electronic Frontier Foundation also had a go at finding out, but the judge let the agency keep on going. And going and going.

The NSA even allegedly tried to pay RSA $10m to put a backdoor into its crypto tool, although RSA denied taking the money. It never happened, honest guv.

It just tapped a few phones, even if it's not allowed to say how many. Anyway, the DEA did it too. And the NSA might have even stopped doing that now. Probably. Maybe.

But US readers shouldn't worry about it... After all, you shouldn't worry about things you can't control. They're going to keep it up. Try to think of it as your tax dollars at work.

Many of the decisions on FISC - both legislatively and politically - have been circular, and amount to: "There's a reason why we have to keep X a secret, but it's a secret."

This week's result is less notable for the fact that the court declined to hear the case, than for two justices on either end of the political spectrum agreeing that it was out of order that secret spy courts are answerable to "no court" in America – despite the fact that broad surveillance programs are by their nature applied to the innocent, criminals, those suspected of crimes... indeed, pretty much everyone.

Too bad the rest of the justices didn't agree. ®


Other stories you might like

  • Zuckerberg sued for alleged role in Cambridge Analytica data-slurp scandal
    I can prove CEO was 'personally involved in Facebook’s failure to protect privacy', DC AG insists

    Cambridge Analytica is back to haunt Mark Zuckerberg: Washington DC's Attorney General filed a lawsuit today directly accusing the Meta CEO of personal involvement in the abuses that led to the data-slurping scandal. 

    DC AG Karl Racine filed [PDF] the civil suit on Monday morning, saying his office's investigations found ample evidence Zuck could be held responsible for that 2018 cluster-fsck. For those who've put it out of mind, UK-based Cambridge Analytica harvested tens of millions of people's info via a third-party Facebook app, revealing a – at best – somewhat slipshod handling of netizens' privacy by the US tech giant.

    That year, Racine sued Facebook, claiming the social network was well aware of the analytics firm's antics yet failed to do anything meaningful until the data harvesting was covered by mainstream media. Facebook repeatedly stymied document production attempts, Racine claimed, and the paperwork it eventually handed over painted a trail he said led directly to Zuck. 

    Continue reading
  • Florida's content-moderation law kept on ice, likely unconstitutional, court says
    So cool you're into free speech because that includes taking down misinformation

    While the US Supreme Court considers an emergency petition to reinstate a preliminary injunction against Texas' social media law HB 20, the US Eleventh Circuit Court of Appeals on Monday partially upheld a similar injunction against Florida's social media law, SB 7072.

    Both Florida and Texas last year passed laws that impose content moderation restrictions, editorial disclosure obligations, and user-data access requirements on large online social networks. The Republican governors of both states justified the laws by claiming that social media sites have been trying to censor conservative voices, an allegation that has not been supported by evidence.

    Multiple studies addressing this issue say right-wing folk aren't being censored. They have found that social media sites try to take down or block misinformation, which researchers say is more common from right-leaning sources.

    Continue reading
  • US-APAC trade deal leaves out Taiwan, military defense not ruled out
    All fun and games until the chip factories are in the crosshairs

    US President Joe Biden has heralded an Indo-Pacific trade deal signed by several nations that do not include Taiwan. At the same time, Biden warned China that America would help defend Taiwan from attack; it is home to a critical slice of the global chip industry, after all. 

    The agreement, known as the Indo-Pacific Economic Framework (IPEF), is still in its infancy, with today's announcement enabling the United States and the other 12 participating countries to begin negotiating "rules of the road that ensure [US businesses] can compete in the Indo-Pacific," the White House said. 

    Along with America, other IPEF signatories are Australia, Brunei, India, Indonesia, Japan, South Korea, Malaysia, New Zealand, the Philippines, Singapore, Thailand and Vietnam. Combined, the White House said, the 13 countries participating in the IPEF make up 40 percent of the global economy. 

    Continue reading
  • 381,000-plus Kubernetes API servers 'exposed to internet'
    Firewall isn't a made-up word from the Hackers movie, people

    A large number of servers running the Kubernetes API have been left exposed to the internet, which is not great: they're potentially vulnerable to abuse.

    Nonprofit security organization The Shadowserver Foundation recently scanned 454,729 systems hosting the popular open-source platform for managing and orchestrating containers, finding that more than 381,645 – or about 84 percent – are accessible via the internet to varying degrees thus providing a cracked door into a corporate network.

    "While this does not mean that these instances are fully open or vulnerable to an attack, it is likely that this level of access was not intended and these instances are an unnecessarily exposed attack surface," Shadowserver's team stressed in a write-up. "They also allow for information leakage on version and build."

    Continue reading
  • A peek into Gigabyte's GPU Arm for AI, HPC shops
    High-performance platform choices are going beyond the ubiquitous x86 standard

    Arm-based servers continue to gain momentum with Gigabyte Technology introducing a system based on Ampere's Altra processors paired with Nvidia A100 GPUs, aimed at demanding workloads such as AI training and high-performance compute (HPC) applications.

    The G492-PD0 runs either an Ampere Altra or Altra Max processor, the latter delivering 128 64-bit cores that are compatible with the Armv8.2 architecture.

    It supports 16 DDR4 DIMM slots, which would be enough space for up to 4TB of memory if all slots were filled with 256GB memory modules. The chassis also has space for no fewer than eight Nvidia A100 GPUs, which would make for a costly but very powerful system for those workloads that benefit from GPU acceleration.

    Continue reading
  • GitLab version 15 goes big on visibility and observability
    GitOps fans can take a spin on the free tier for pull-based deployment

    One-stop DevOps shop GitLab has announced version 15 of its platform, hot on the heels of pull-based GitOps turning up on the platform's free tier.

    Version 15.0 marks the arrival of GitLab's next major iteration and attention this time around has turned to visibility and observability – hardly surprising considering the acquisition of OpsTrace as 2021 drew to a close, as well as workflow automation, security and compliance.

    GitLab puts out monthly releases –  hitting 15.1 on June 22 –  and we spoke to the company's senior director of Product, Kenny Johnston, at the recent Kubecon EU event, about what will be added to version 15 as time goes by. During a chat with the company's senior director of Product, Kenny Johnston, at the recent Kubecon EU event, The Register was told that this was more where dollars were being invested into the product.

    Continue reading

Biting the hand that feeds IT © 1998–2022