New Book Details the NSA’s Warrantless Wiretapping Program, As Government Moves to Avoid All Accountability in Court
posted by Keito
2012-09-30 12:39:23'Former New York Times reporter Kurt Eichenwald’s new book, published last week, provides yet more details about how the the NSA’s unconstitutional warrantless wiretapping program came about, and confirms that even top Bush Administration lawyers felt there was a “strong argument” that the program violated the law. “Officials might be slammed for violating the Fourth Amendment as a result of having listened in on calls to people inside the country and collecting so much personal data," Eichenwald wrote, and “in the future, others may question the legality” of their actions.
Yet even today, eleven years later, the government continues to claim that no court can judge the program's legality. In the next month, the government will argue—in EFF's case in federal district court and ACLU's case in the Supreme Court—that courts must dismiss the legal challenges without ever coming to a ruling on the merits.
Eichenwald's book, 500 Days: Secrets and Lies in the Terror Wars, describes how the NSA’s illegal program—what he calls "the most dramatic expansion of NSA's power and authority in the agency's 49 year history"— was devised just days after 9/11 to disregard requirements in the Foreign Intelligence Surveillance Act (FISA). Instead of getting individualized warrants to monitor Americans communicating overseas, the Bush administration unilaterally gave the NSA the power to sweep up millions of emails and phone calls into a database for analysis without court approval:
Connections between a suspect e-mail address and others—accounts that both sent and received messages there, whether in the United States or not—would be examined. At that point, a more detailed level of analysis would be applied creating something of a ripple effect. The suspect e-mail address would lead to a second, the second to the accounts it contacted.
In other words, the NSA was given the green light to warrantlessly spy of Americans communications on American soil—a power that was illegal under FISA. And the government—instead of finding probable cause for surveillance like the Constitution requires—started using a burden of proof akin to the game Six Degrees from Kevin Bacon.
Eichenwald’s reporting, focused on the immediate aftermath of 9/11, unfortunately overlooks the NSA’s longstanding desire to live “on the network” reflected in its presentations to the incoming Bush Administration officials in December, 2000. The idea that the NSA only came up with this idea after 9/11 isn’t really accurate.* But regardless, Eichenwald's reporting makes clear that Bush administration officials were terrified that this program would become public.
Of course, after several years, much of the NSA’s program did become public when the New York Times exposed its existence in their 2005 Pulitzer Prize winning investigation. Virtually every major news organization in the US subsequently reported on the NSA and its mass spying programs, which led to congressional investigations and a multitude of lawsuits—two which will be argued in the coming month.
In EFF’s lawsuit, in addition to a mountain of public information including many governmental admissions, the court will see evidence from AT&T whistleblower Mark Klein showing blueprints and photographs of the NSA’s secret room in AT&T’s facility in San Francisco. Three more NSA whistleblowers, including William Binney a former high ranking official involved with the program during its infancy, also submitted affidavits laying out how the NSA illegally spied on Americans in the aftermath of 9/11.
Despite this all of this, the government recently filed a motion in the Northern District of California invoking the controversial “state secrets” privilege. Essentially, the government argues that—even if all of the allegations are true—the case should be dismissed entirely because admitting or denying any fact would potentially endanger national security, even in the face of the government’s own craftily wordsmithed “denials” before Congress and elsewhere.
In the ACLU’s case going before the Supreme Court this term, a group of journalists, lawyers, and human rights activists has sued over surveillance conducted after the passage of the FISA Amendments Act (FAA). The FAA was passed in 2008 and formalized some of the admitted portions of NSA’s program, allowing emails and phone calls to and from from overseas to continue to be acquired without a warrant. The government only needs one general court order to target large groups of people—even entire countries—communicating to Americans for an entire year.
The plaintiffs, given that their professions, regularly talk to people who are almost certainly spied on. They argue that surveillance of them without warrants renders the statute unconstitutional. But the government contends the case must be dismissed on “standing” grounds because the plaintiffs can’t prove with certainty they have been surveilled, because, in a perfectly circular argument, the government won’t “admit” they have been surveilled, as if public admissions by the government is the only way to prove illegal wiretapping.
As the ACLU writes, “The government theory of standing would render real injuries nonjusticiable and insulate the government’s surveillance activities from meaningful judicial review.” The same can be said of the ‘state secrets’ privilege in EFF’s case. The government is contending they can use government secrecy as a sword to terminate judicial accountability. It doesn’t matter how much evidence is in the public domain, just by telling the Court that the information implicates “national security," they can wall off entire subject matters from judicial oversight, effectively hiding illegality, unconstitutionality along with embarrassing or overreaching acts by NSA spooks and others.
Eichenwald is just the latest in a long line of journalists to discuss and organize details about the NSA’s unconstitutional program. At this point the American people are well aware of the NSA’s actions – only the courts have been kept in the dark. And if the courts go along with blinding themselves, the government will have been given a license to violate the law and constitution long into the future.'
* Before 9/11, the NSA asserted” “The volumes and routing of data make finding and processing nuggets of intelligence information more difficult. To perform both its offensive and defensive mission, NSA must ‘live on the network.’” Opsahl Decl. Ex. 4 [Vol. I, p. 214] (National Security Agency, Transition 2001 (December 2000), at 31). Moreover, the NSA asserted that its “mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries.” Id. at 32 [Vol. I, p. 215]
Stallman urges Americans to support Senator Merkley's bill, the Protect America's Privacy Act
posted by Keito
2012-09-23 13:47:18'US citizens: Phone your senators to support Senator Merkley's bill, the Protect America's Privacy Act (S. 3515), which would limit warrantless wiretapping of Americans.
The Capitol Switchboard numbers are 202-224-3121, 888-818-6641 and 888-355-3588.
Here's info from CREDO Action about the bill:
While Sen. Merkley's bill does not repeal telecom immunity for illegal spying, restore privacy protection to library and bookstore records, end National Security Letter abuse, or roll back the worst abuses of the PATRIOT Act (all issues CREDO will continue to fight for, in addition to the full repeal of the PATRIOT Act), it does make three major changes to the warrantless wiretapping program that help us end some of the abuses of the Bush era.
First, it would put stronger protections in place to ensure that spy agencies are not using this program as an indirect way to target someone in the U.S.
Second, current law allows the government to collect information in anticipation of having its request to do so approved by a special type of top-secret court. Sen. Merkley's bill would ensure that if this court decides the procedures the government is using to collect information are improper, any information collected from Americans cannot be used in a legal proceeding.
Third, the bill would establish a new process for ensuring that if security agencies determine that information is being collected on Americans, that information cannot be accessed or searched until a proper warrant is obtained.'
That’s No Phone. That’s My Tracker.
posted by Keito
2012-07-27 20:47:35Via Slashdot: "An article in the NY Times argues that the devices we call 'cell phones' should instead be called 'trackers.' It would help remind the average user that whole industries have sprung up around the mining and selling of their personal data — not to mention the huge amount of data requested by governments. Law professor Eben Moglen goes a step further, saying our cell phones are effectively robots that use us for mobility. 'They see everything, they're aware of our position, our relationship to other human beings and other robots, they mediate an information stream around us.' It's interesting to see such a mainstream publication focus on privacy like this; the authors say that since an objects name influences how people think about the object, renaming 'cell phones' could be an simple way to raise privacy awareness."
Richard Stallman has been saying this for years... "I refuse to have a cell phone because they are tracking and surveillance devices. They all enable the phone system to record where the user goes, and many (perhaps all) can be remotely converted into listening devices."
Microsoft Makes Skype Easier To Monitor
posted by Keito
2012-07-27 19:51:49"New surveillance laws being proposed in countries from the United States to Australia would force makers of online chat software to build in backdoors for wiretapping. For years, the popular video chat service Skype has resisted taking part in online surveillance—but that may have changed. And if it has, Skype’s not telling.
Historically, Skype has been a major barrier to law enforcement agencies. Using strong encryption and complex peer-to-peer network connections, Skype was considered by most to be virtually impossible to intercept. Police forces in Germany complained in 2007 that they couldn’t spy on Skype calls and even hired a company to develop covert Trojans to record suspects’ chats. At around the same time, Skype happily went on record saying that it could not conduct wiretaps because of its “peer-to-peer architecture and encryption techniques.”
Recently, however, hackers alleged that Skype made a change to its architecture this spring that could possibly make it easier to enable “lawful interception” of calls. Skype rejected the charge in a comment issued to the website Extremetech, saying the restructure was an upgrade and had nothing to do with surveillance. But when I repeatedly questioned the company on Wednesday whether it could currently facilitate wiretap requests, a clear answer was not forthcoming. Citing “company policy,” Skype PR man Chaim Haas wouldn’t confirm or deny, telling me only that the chat service “co-operates with law enforcement agencies as much as is legally and technically possible.”
As reported on Slashdot: "Skype has gone under a number of updates and upgrades since it was bought by Microsoft last year, mostly in a bid to improve reliability. But according to a report by the Washington Post, Skype has also changed its system to make chat transcripts, as well as users' addresses and credit card numbers, more easily shared with authorities."
'Hacker groups and privacy experts have been speculating for months that Skype had changed its architecture to make it easier for governments to monitor, and many blamed Microsoft, which has an elaborate operation for complying with legal government requests in countries around the world.
“The issue is, to what extent are our communications being purpose-built to make surveillance easy?” said Lauren Weinstein, co-founder of People for Internet Responsibility, a digital privacy group. “When you make it easy to do, law enforcement is going to want to use it more and more. If you build it, they will come.’’'
/. on fascism
posted by Keito
2012-07-26 20:47:54"Have fun in your little made-up universe where the government comes to round you up and you manage to fight it off.
In the real world, fascism is when the corporations and governments work as a single entity, and you can wander around with your fucking gun all you want. In fact, you'll have to wander around, because the government/corporations took your house and your car, and no one will hire you.
At which point you'll be arrested, not as some big anti-government hero by jackboot thugs, but for stealing bread to live on, by a perfectly normal cop who's just doing his job, a job that absolutely no one except you disagrees with, so when you shoot and kill him you're getting the electric chair and no one thinks you're a hero at all.
There are different types of totalitarian governments, and assuming a fascist one operates like a communist one is faulty. Fascist governments don't put troops in the streets...they work with corporations to make sure 'the wrong sort of people' do not have any economic power, and do not have anywhere to peddle their ideas.
Modern fascist states don't even bother to kill those people, and pretending they're going to show up in some stormtrooper outfit and start a gun battle with you is insane. They'll show up with a court order to evict you from your home because you failed to pay your mortgage, because pressure came from the top at your company to let you go. Or they'll just sue you and ruin your finances.
America is not a bunch of tiny castles where, as long as you can hold off the invading armies, you will be fine. The idea that that is how the world works is astonishingly naive. Almost all the population of America lives in housing they do not fully own, they get food from places they do not control like the supermarket, they require operating in society for money to obtain said food and shelter, a society where economics are controlled by some very large players that can crush them like bugs.
And a fascist state isn't going to 'assume control', you asshat. There's not going to some insane coup, there's a going to be a slow change, which has, in fact, already happened, or have you not looked at the telecom immunity stuff? That's classic fascism. The government breaks the law, the government gets private companies to break the law, the government gives said companies huge amounts of cash, the government attempts to make such behavior legal retroactively. We've got government officials and AT&T officers leaping back and forth between each other in an incestuous loop. Your government spying on you, sponsored by AT&T. It's not 'totalitarian' yet, as evidenced by the fact Democrats managed to stop the immunity, but it is fascism, at least the start of it. (And the same thing's happened with Blackwater.)
Oh, and before you start ranting about gun control some more, be forewarned I'm against it. I'm just not stupid enough to think that the US government being slowly corrupted by business is something that can be fought off with gunpowder. Guns are useful to deter crime and to deter invasion. They aren't useful against a corrupt government in any meaningful way."