What do Elizabeth Warren and Donald Trump have in common? They both use surveillance that did not take place under Section 702 to argue against reauthorization of this critical national security authority—which has never been shown to be abused for domestic political spying.https://twitter.com/senwarren/status/952218106927222784 …
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Replying to @benjaminwittes
Section 202 of the Nunes bill opens 702 authority to broad new domestic areas of inquiry, and purports to give the AG *unreviewable authority* to direct the use of 702 evidence against US persons.pic.twitter.com/LM2SDFN02j
15 replies 163 retweets 253 likes -
Replying to @nycsouthpaw @benjaminwittes
So this is new authority? According to
@AshaRangappa_ this is just a renewal of existing law1 reply 0 retweets 1 like -
1. This actually limits the kinds of cases that 702 can be used to certain types of cases (right now, technically, it is not limited by statute, though the FBI has an internal policy).
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Replying to @AshaRangappa_ @bayofarizona and
2. I read the AG determination differently. Say, for ex, the AG determines that it wants DOJ to use 702-derived info in Paul Manafort's prosecution. He is being prosecuted for financial crimes, which does not fit in the other categories. Still, the AG could determine that
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Replying to @AshaRangappa_ @bayofarizona and
3. his prosecution affects, involves, or is related to national security because, well, he's a Russian spy and the financial crimes were part and parcel of his intelligence activities on their behalf. The no judicial review means he couldn't challenge the AG determination
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Replying to @AshaRangappa_ @bayofarizona and
4. but I don't read it as suggesting that that determination would not need to be formally made/documented or that it could not be requested and reviewed by congressional oversight committees to make sure it's not being abused.
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I read existing law as requiring FBI to maintain its rule (50 USC 1801, definition of “minimization procedures”) and placing the use of 702 info for prosecutions substantially under court supervision (50 USC 1881e/1806).
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Replying to @nycsouthpaw @AshaRangappa_ and
The amendments, it seems to me, attempt to carve out a new space—enumerated criminal categories and AG’s broad discretion—where this info could be used against US persons without much ability for them to challenge it in court (an ability they previously had).
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Replying to @nycsouthpaw @AshaRangappa_ and
It's not a new space. These same categories were adopted unilaterally in 2015. https://www.emptywheel.net/2015/11/05/kiddie-porn-computer-and-building-destruction-and-section-702/ … But we've subsequently learned that FISC lets NSA collect on domestic comms tied to location obscured techs.
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The big problem with the new unreviewable authority language (aside from giving an ardent racist too much power) is it carves out a great deal of domestic crime that all of a sudden is removed from normal court oversight.
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Replying to @emptywheel @nycsouthpaw and
A Tor Dark Market spying bill would pass immediately. But that would mean its use would be reviewed by criminal courts, instead they're choosing to codify it here where there's no real review. A huge and dangerous assault on due process.
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