There’s a matrix of data here, probably using some kind of profiling process and that could be the 215. IMO, Zazi set the whole thing off by virtual of ethnicity and travel to key or targeted locations. On a cursory pass over this post and the last one (have not been following the Zazi case closely), it looks to me as if the 215 search process is a rough equivalent of that behind a direct mail operation.

The likelihood you are of a certain political ideology can be determined by the kinds of purchases you make, while residing at a particular address and using particular kinds of vehicles, for instance; a direct mail firm will buy this data from credit card and other firms, consolidate and sort it by a unique identifier (for political purposes, it’s your name and mail address) and then target you with specific promotions. You purchase Guns & Ammo magazine, you buy high protein dog food, you buy Carhartt jackets — presto, you’re going to get mail from the NRA and the next Republican candidate for office. [edit: should spell this out more clearly — by the same token, you live in a rental, you buy only middle eastern food products, you’re a man and you buy an awful lot of peroxide and nail polish remover. Presto, we have to go to FISA about you.]

The excessive amount of credit card debt is problematic, IMO; somebody actively let this guy run up this much debt for a reason. They gave him enough credit to obtain enough purchasing data, even if it meant breaking credit card rules. Entrapment pops into my head here.

And the UIGEA, too, wherein banks could turn in any unusual activity; what actually triggered the first move to track this guy? Banking/credit activity?

Little spyware necessary — just have to locate this guy by purchasing, identify his ISP, hack into his machine for anything which can’t be obtained through purchasing history. You know, like credit/debit card transactions and your neighborhood grocery store’s affinity card used for discounts?

I’m going to assume that they really have a group of guys who are bad guys and who were going to do something legitimately bad. Even with that, though, here’s the problem with what DiFi is proposing and why she is setting us up, once again, for a “hard facts make bad law” situation.

Presumably the Zazi case is actually going to go to trial and the evidence is actually going to be subjected to a typcial court review. I think that the founders were absolutely aware that, if you let gov do ots of warrantless searches and seizures, they would eventually find, for some people, incriminating info. But that’s not the process that was authorized. Instead, the authorized process was to go to a judge and convince the judge that there was “probable cause” to believe someone might be involved in a crime and have the judge issue a warrant.

So what happened with that whole concept? Well, in part, originally, FISA happened. For all the questions raised by the Yoo Hoos on whether or not FISA is constitutional restriction on the President’s authority, the bigger question is whether or not FISA allowed unconstitutional searches of US citizens on US soil, even under its own & old rules and language. There is a reason that the old language used the references to “foreign powers” and “agents of foreign powers” language. It comes from a Sup Ct case – a case where the court was dealing with a warrantless search/wiretap that was unconstitutional and where the court said in dicta that it wasn’t reaching the issue of whether something other than a showing of probable cause to believe a criminal activity was involved would support the warrantless search/wiretap by the executive of a foreign power or an agent of a foreign power (and not touching on the issue of the “agent” being a US citizen).

So when FISA was generated, to codify the power in the Executive, it went back to what the court had said in dicta and pulled that language to use. It set up a process where basically the FISA court was there to deal with the minimization of impact on US citizens and really the court doesn’t issue orders for surveillance where you have solely non-US foreign powers/agents involved, in part acknowledging that dicta in the Sup Ct decision that it’s an Exec function, not a court function, to decide whether or not the Exec is going to wiretap, say, the Russian embassy calls to the Kremlin – without regard to crime.

Makes sense.

But then you had the fact that the Exec was going to be using all kinds of technology and tactics that involved accessing information that wasn’t “just” foreign power to foreign power agent and that involved US persons. And the murky issue of what about US citizens who are in “contact” with foreign powers, where the contact may or may not be with respect to a criminal purpose. So voila – the FISA court – to issue minimization procedures for the US persons caught up in this and to issue orders allowing for the surveillance of US persons where there was “probable cause” to believe that those US persons were in contact with foreign powers/agents of foreign powers. But this FISA surveillance process was fore the SOLE purpose of security information gathering and could not be used for criminal purposes. Bc you were using a process that was unconstitutional for criminal purposes, but under the concept that sometimes “national security” (and let’s face it – how many contacts with foreign powers that are actually tied in to threats to national security wouldn’t also involve crimes?) required that kind of surveillance, for purposes other than criminal prosecutions.

Since FISA was originally passed, though, they’ve done a lot of things. They have “defined” a foreign power and agent of a foreign power more and more broadly – to make some kind of amorphous “terrorist” designation also become a foreign power, without regard to the lack of foreign aspect to ideology. And then there’s what Kris raised, way back when, with Yoo. What about if the sole purpose or even the primary purpose isn’t for national security, but rather to try to go on fishing expeditions to gather evidence of a crime, where you have no probable cause. And yes, the Congress has codified a degenerated (in every sense of the word) standard to now allow huge, sweeping powers where there is no criminal probable cause to support a warrant, to allow for searches and seizures if anyone can “make up” some kind of a tangential reason to claim that there might be a contact with a foreign power somewhere in all of what they are sifting through.

And now DiFi wants to go the other way as well, and say that even the concept of a tie to terrorists and terrorism – which had been defined to be a “foreign power’ contact and which was the underlying bootstrap to allow for sweeping searches where there was no criminal probable cause – to now say that isn’t even a necessary element of the searches, no “foreign power” contact needs to even be at issue.

It’s pretty unbelievable and of course, as long as nothing is ever going to go to a criminal court, it “works” bc there is never judicial review and Congress is worse than worthless. But then you get a case like Zazi’s and now what? Now Congress, because it won’t do its job, puts the courts once more in a position where they have bad facts (not one of the thousands and thousands of cases were people were violated with searches that found nothing – but instead some bad buys) and clearly unconstitutional behaviour. Let’s face it – it would have been completely “legal” for Congress to require that sales of hydrogen peroxide products in certain quantities has to be recorded and reported – we do that for other things. Instead, they authorize FBI et al to run amok with searching for anything it wants, anywhere it wants, on any pretext. All handled by guys and gals who are sometimes good people, and more and more often not such good people. Bc an entity that spies on and violates its own citizens for political and prurient purposes as well as the random “real” reasons of crime prevention – that kind of entity only attracts certain kinds of people.