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Comment by malwarebytess | Hacker News Reader

>Among the special powers granted exclusively to the FBI under a Reagan-era executive order (No. 12333) are authorizations to conduct “unconsented physical searches” and “physical surveillance” for intelligence purposes in the US. The Supreme Court has held that the Fourth Amendment generally requires law enforcement agencies to obtain a warrant before searching cell phone data, but there is an exception for “exigent circumstances,” which is supposed to apply only to extreme situations in which lives are in danger.

It seems like a clear cut abuse of power. These aren't exigent circumstances, they're protests, and besides that it's not a federal problem. It seems like the 4th amendment doesn't have any power any more.

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This journalist has absolutely no idea what they are talking about. Executive Order 12333 grants authority to the FBI (among others, with few exceptions), specifically as it relates to foreign intelligence and counterintelligence (EO 12333 1.7(g)(1)).

I'm not even sure where they are getting the "unconsented physical searches" and "physical surveillance" line from. EO 12333 specifically states, "Elements of the Intelligence Community are not authorized to use such techniques as electronic surveillance, unconsented physical searches, mail surveillance, physical surveillance, or monitoring devices unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director." It then goes on to infer the FBI is the only one who can conduct unconsented physical searches and physical surveillance on United States persons, except in specific circumstances.

In other words...EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations into the previously mentioned activities; and they are the only ones able to do so except in specific circumstances. Lastly, the protests in Portland would not be considered as part of literally any of the FBI's authorities in EO 12333, it would be from their authorities related to conduct of criminal investigations, which would require a warrant or consent to a search.

I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing.

>> This journalist has absolutely no idea what they are talking about.

>> I'm not a fan of all this necessarily, but the fact checking in this article is mind-blowing.

I'm starting to suspect that half of articles today are purposeful misinformation that fits a narrative, while the other half is lazy reporting and might even rely on the misinformation as a source, just perpetuating it.

I've never read NYbooks.com before, but is a book reviewer really going to give me accurate insight into legal interpretation? Nope...

>I'm not even sure where they are getting the "unconsented physical searches" and "physical surveillance" line from

>EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities; the FBI may use unconsented physical searches and physical surveillance to support their investigations

You don't understand why they're saying they can do exactly what you say they can do.

The only hiccup you've introduced is that you don't think the Portland protests would count as foreign intelligence or counterintelligence, but they would only need a very weak link to some foreign agent to allow wide scale surveillance. Hell, a Canadian protester would fulfill the criteria.

I mean, that's not really a hiccup, it is a cornerstone of intelligence activity authorities. Sure, law enforcement officers can make up a bunch of crap that provides pretext for an investigation/other activities.

However, I think you are misunderstanding the legal definitions and elements for foreign intelligence and counterintelligence. The Canadian would not be considered under either definition unless they are acting on behalf of the Canadian Government as an agent of a foreign power. There are specific legal definitions for all these terms that are worth looking into[1].

[1] https://www.law.cornell.edu/uscode/text/50/1801

From your link, the definition of foreign power includes:

"a foreign-based political organization, not substantially composed of United States persons"

And, a foreign agent can be:

"knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power"

That kind of language is so loose. A good legal team could easily claim something something something Antifa foreign influence burned down a Target to meet that legal definition.

I think you're being a little naive about how these laws are used.

At the end of the day they do a smell test to see if there is a sufficient "foreign nexus". And there always is. 99.9% of the surveillance they do is political and never sees the inside of a court room, so it doesn't matter if their analysis is implausible or made in bad faith. [1]

Canadian: check. US citizen who studied abroad: check. US citizen with a foreign partner: check. US citizen with a foreign gardener: probably check. US citizen with a foreign car: check back in 2030.

[1] https://www.fisc.uscourts.gov/sites/default/files/MIsc%2019%...

You've got a point. Plus, using that source only reinforces what a fishing expedition the whole Russia affair was.

As others have stated, the definition is broad enough to easily abuse. For example, as Wikileaks has been labeled a hostile foreign agent, any (foreign?) donator would justify all surveillance.

Further, I can't find a definition for "counterintelligence" on the Cornell site period, though I may have made mistakes in my search. Presumably, they could use that exception to surveil protestors "protecting" them from foreign influence.

It is defined in EO 12333 as well as in 50 USC §401a as, "The term 'counterintelligence' means information gathered and activities conducted to protect against espionage, other intelligence activities, sabotage, or assassinations conducted by or on behalf of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities."

In theory, they would not legally be able to without a Court Order from the Foreign Intelligence Surveillance Court. At least not when it concerns unconsented physical searches or electronic surveillance of US persons.

Thanks, I tried to search the entire site for "counterintelligence" and got no results. That seemed unlikely, but I didn't press on. That definition seems to justify surveillance on anyone with a Russian bot twitter follower, or their associates. Basically, every protestor. Likely a convincing argument allowing surveillance of both of us based on this thread could be made.

>In theory, they would not legally be able to without a Court Order from the Foreign Intelligence Surveillance Court

The executive order in question already gives them permission to make such searches. You can argue that a court would find that order unconstitutional, but until such a ruling such a search would be considered legal, and would support what the reporter claims.

That is not what EO 12333 says/does. It says that if anyone is going to conduct the activities in question in the US, it will only be the FBI. FISA dictates the requirements as to how.

>In other words...EO 12333 specifically authorizes activities for the FBI as they relate to foreign intelligence and counterintelligence activities;

EO 12333 says the FBI can conduct foreign intelligence and counterintelligence activities; then it states if those activities take place regardless of authorities it must be done by the FBI; FISA then lays out statutory requirements in order to carry out the authorities specifically as they relate to US persons. So no, the author is not correct. Or maybe a more generous way to put it is their point was incomplete in a substantive way. I’m not sure where the miscommunication is taking place.

The miscommunication seems to that you are taking it as a given that the FBI is acting in good faith, despite the history of both the organization and the use of EO 12333. Former government officials have said that the order is used to justify vast amounts of "incidental" collection, allowing the FBI to find one FISA approved target and commit the surveillance described.

> but they would only need a very weak link to some foreign agent to allow wide scale surveillance. Hell, a Canadian protester would fulfill the criteria.

My impression is that this is exactly why DHS wrote the Intelligence Report "The Syrian Conflict and its Nexus to US-based Antifascist Movements": https://www.voltairenet.org/IMG/pdf/471292844-The-Syrian-Con...

The idea seems to be to gin up a facially plausible but totally spurious connection from Antifa to PKK via the YPG, to claim that YPG is a "foreign power" (ridiculous, but might be technically true under 50 U.S.C. § 1801(a)(5)), or that it's somehow the same organization as the PKK (false) in order to justify a counterintelligence investigation of protestors.

A Canadian Professor?

Canada is literally a Five Eyes member?

Though I don't think that is relevant to my point, Five Eyes also involves spying on other members citizens and sharing it.

I wonder if it counts that a lot of this pot is being stirred up by Chinese and Russian troll farms. Do you think that would be enough for a judge to rule in the FBI's favor for the abuses that they and other federal agencies are obviously up to in Seattle and other hot spots?

There is evidence of foreign nationals fomenting violence at recent protests[0]. I would hope FBI is investigating.

[0] https://www.washingtonpost.com/politics/idaho-family-portlan...

There is absolutely no evidence of foreign nationals doing anything in that article.

Maybe I'm missing something here, but what I read is:

"...unless they are in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director"

So you need to get:

1. A department head to come up with a procedure for carrying out the unconsented physical searches.

2. AG Barr to sign off on it.

That sounds like something you could do in, like, 20 minutes if you knew the right phone numbers to dial.

No worries, national security law is pretty complicated and a bit of a web of concepts. The portion you quoted relates to the ability/necessity for elements of the Intelligence Community to create formal implementing guidance of the requirements within EO 12333 (e.g., which activities can be performed by the agency, under what circumstances, etc.) Basically there is a negotiation that takes place between the IC element and DoJ/the White House in order to add some fidelity to the language in EO 12333. It is a process that generally takes years, not minutes. In addition, the AG wouldn't be able to make an exception that is inconsistent with the requirements in EO 12333. Theoretically, the President could amend EO12333 to allow for additional activities, but there are even issues with that considering Congress' role in intelligence oversight, power of the purse via the Intel Authorization Act, etc...

Ok, fair enough. I can tell that you probably know far more than me on this issue.

I want to pose this question to you because I don't know enough about the subject to pose the question from the standpoint of justifying it.

If all of the following parties wanted to make this happen:

1. White House

2. DOJ

3. IC element

Say all of their incentives were aligned.

And say that nobody was directly looking over their shoulder to blow the whistle and say 'hold on wait a minute,' then what would prevent this from happening?

Considering the actions taken by federal law enforcement during the protests, I see this as being in the category of 'if it could potentially happen, it probably has.'

Feel free to disagree. I'm here for the interesting discussion.

Oof, that is a complicated question to answer. In short, outside of EO 12333, there is the Constitution, other Executive Orders, federal statutes (e.g., Foreign Intelligence and Surveillance Act, Intelligence Authorization Act(s), etc.), case law, etc. which would have to be considered as part of that process.

I highly recommend taking a look at the Intelligence Community Legal Reference Book published by ODNI [1]. If you're into that kind of stuff, it is a fascinating read.

[1] https://www.dni.gov/files/documents/IC_Legal_Ref_2009.pdf

Sorry, I didn't do a good job of spelling that out. I was trying to be more narrow and keep it with EO 12333.

My argument was:

A. The definition of foreign power and foreign agent are loose enough that a legal team acting in bad faith could make the argument that protesters could be included in the latter group.

B. EO 12333 could then be applied to those protestors, which would allow the FBI to engage in unconsented physical searches, etc under the executive order

C. Could occur at a time when the heads of the White House, DOJ, and IC elements were politically aligned and showed no dissent

D. Could occur under a situation of disorganized oversight occurring during a time of national chaos

Under this more specific scenario, what would prevent this from happening, where a protester is included in a legal definition made in bad faith that makes an end-run around those other obstacles you mentioned (via EO 12333) to arrive at novel law enforcement powers?

Again, I appreciate you taking the time to talk about this. I'm just curious and bored so I wanted to play with the idea.

This is a bit outside of my domain of expertise from my previous life, but I’ll do my best to answer...

There isn’t really an end run around they can use. The definitions may be a little loose, but when it concerns a United States person, the requirements in the Foreign Intelligence Surveillance Act come in to play.

There is typically a presumption that anyone in the United States is a US person, unless evidence exists otherwise, so the protestors in your scenario would almost certainly be presumed US persons.

As a result, a warrant would have to be obtained via the FISA court in order to conduct the unconsented physical search[1].

EO 12333 isn’t saying the FBI has carte Blanche to conduct those activities (even if the AG tries to say so). It is saying that IF someone is going to conduct those activities in the United States/domestically, the FBI will be the only ones to do so. It doesn’t preclude them from still having to abide by FISA though. There is a lot more flexibility for anywhere/anyone outside of the US though.

Hypothetically, could a coordinated modification be made to the EO and/or the agency’s attorney general guidelines? Possibly, but probably not for anything that is consequential. Like I mentioned, there are a lot of other factors that limit the AG’s flexibility.

That’s why when you kind of have to look at things like EO 12333 in context of a bunch of other policies and established precedents. It’s really only part of the story within a very complicated legal framework.

Sorry, it is late at night and my brain isn’t working as well at this point. I appreciate the discussion and if I can think of anything else tomorrow I’ll try to respond a little further.

[1] https://www.law.cornell.edu/uscode/text/50/1822

Don't apologize, I think that was a great explanation.

"It’s really only part of the story within a very complicated legal framework."

I work in the biological sciences, and this resonates with me strongly.

When discussing things here I often find people taking isolated biochemical pathways out of the broader context of the biochemical milieu of the cell.

Now, I am one of those people, but I'm taking a single legal element, and ignoring the broader legislative milieu.

Plus I'm really high, so even the minutiae is fascinating. Thanks for taking the time to discuss. Appreciate it.

> ... what would prevent this from happening?

Not. A. God. Damn. Thing.

"... the Constitution, other Executive Orders, federal statutes, case law, etc. ... which wuld have to be considered" (as mentioned in a sibling comment) wouldn't pose even the smallest obstacle if they all "wanted to make this happen".

There were so many things that we all thought they simply COULD NOT DO -- until Snowden came along and showed us that they were, in fact, doing every single one of them for years -- not to mention all of the other things that we had never even considered!

I just want to say, I was curious who would write that particular comment. So I clicked on your comment history.

Linux/BSD sysadmin. The CNN lite comment. An actual GPG key in your signature!

You're a real-ass dude.

I don't work in tech, but when I was a kid my first computer ran FreeBSD, because my uncle who was an Engineer handed me a box of parts, a FreeBSD disc-set, and some satellite tracking software he said I should "never connect to the internet because I copied it from work." Dude explained to me what Project Echelon was, had an unfolded Mac-10 receiver in his closet, and his proudest moment was when Noam Chomsky emailed him back.

Your whole ethos reminds me of him, so please keep being you dude because the world needs it.

> Elements of the Intelligence Community are not authorized to use such techniques ... unless ...

Perhaps "such techniques" were "... in accordance with procedures established by the head of the Intelligence Community element concerned or the head of a department containing such element and approved by the Attorney General, after consultation with the Director"?

I would not be surprised -- at all -- to learn that AG Barr (after consulting with DIRFBI Wray) approved "such techniques".

I commented on this elsewhere, but that is not legally possible due to the Foreign Intelligence Surveillance Act.

Unconsented physical searches of US persons, for the purposes of obtaining foreign intelligence and/or counterintelligence, has to be ordered by the FISC. Recent examples of this taking place can be seen with Carter Page, Michael Flynn, and I guess even the President.

EO 12333 is really just saying that IF these searches are to take place in the US, only the FBI has the authority to conduct the activity. They still have to follow other laws, policies, and procedures that exist.

Suggest they are influenced by Russia and all these nice rules fly out of the window. The journalist is correct on this.

I think you just gave me an answer to a question I had, why Russians are mentioned in everything remotely discomforting in internal US politics. I am not saying Russians are not trying but their destabilizing cspabilities are way lower than the FBI's.

I feel like programmers/engineers/technical-minded people have an easier time being terrified at this kind of "exception" for "exigent circumtances". Because that type of person is well aware that an "exception to a rule" really just means the rule is formally worthless, since it provides no guarantee whatsoever.

or maybe I'm just projecting how I think.

You'd think this would generalize, but ask anyone who does security or has more than 10 minutes of social science education about programmers' general ability to ignore side effects and unintentional consequences...

> Because that type of person is well aware that an "exception to a rule" really just means the rule is formally worthless, since it provides no guarantee whatsoever.

If you think about it, rules themselves provide no guarantee whatsoever. They're only as strong as the institutions (aka. people) enforcing them. Some text in a book somewhere provides zero guarantee that some cop isn't going to assault you for talking back at him, or some general isn't going to turn the country into a dictatorship.

Learning about foreign governments (like British parliament) makes this a lot more obvious IMO. It seems like at a certain level formal rules start to become a lot less important than tradition.

I've heard it put more pithily, but, the practice of following the rules, obeying the laws, is itself no more than a tradition.

Yeah, I often thing that way too, and I think this mindset in programming (and also financial engineering) of taking any little gap and maximally exploiting it is very hard to deal with legislatively.

It's hard enough to make a web form secure, trying to do the same with emergency response legislation, when the nature of emergencies is that they often take unforeseeable forms, is an intractable problem.

I've been beating this drum quite a bit lately and I understand this feels impossible from where we are, it feels impossible to me too, but the problem we really have to solve is figuring out a way to trust and be trustworthy when given certain responsibilities. Not just for emergency powers, for everything.

We don't have the technology to eliminate the need for trust, not even close. We have to work on constraining the threat model a little bit.

Insert "Fiery but Mostly Peaceful Protest" CNN screenshot here

I completely agree agree with you on the 4th, it has become persona non grata to both parties. Republicans and Democrats are beginning to see the Bill of Rights as more "suggestions" than the actual foundation of our system of laws. I don't even think they consider it a "living Constitution" anymore and just consider it fodder for election speeches. Do not blame only Republicans for this, the Dems own it as well. Obama kept up mass surveillance and the unPatriotic Act as well as did Bush. They're all complicit. Sure Dems have a better record on progressive social issues, and some Constitutional "features" but so do Republicans with gun rights and religious rights. However both are ignore fundamental aspects of it that don't fit their narrative.

National security is used around the world to undermine basic laws and constitutions. This trend has to stop. Best start would be yesterday. Sensible constitutions have protection of privacy for a reason. Now we have old and slow people in power that sell it for a bit of profit.

Yes, this is one of the areas where western democracies have gone completely off the rails.

But how can it stop? It doesn't seem to matter how moderate and liberal the head of government appears to be, they condone this awful behaviour with the magical incantation: "national security".

Governments and the media are adept at spreading FUD by controlling negative messaging around terrorism, organised crime, communinism, the Chinese, the Russians, or whoever the boogeyman de jour is. A huge segment of the populace is is so scared they convinced that they can trust the government and the security services.

I just don't see how this can end.

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