Verizon NSA monitoring
- U.S. Admits Surveillance Violated Constitution At Least Once
- U.S. charges Snowden with espionage
- Edward Snowden's Half-Baked Revolution
- Greenwald: Britain ‘Will Regret What They’ve Done’
United States v. Ning Wen — Probable cause to believe that a foreign agent is communicating with his controllers outside our borders makes an interception reasonable. If, while conducting this surveillance, agents discover evidence of a domestic crime, they may use it to prosecute for that offense. That the agents may have known that they were likely to hear evidence of domestic crime does not make the interception less reasonable than if they were ignorant of this possibility.
- 1 Good reform proposals
- 2 I have long argued the issues
- 3 "Domestic" or "Foreign" data?
- 4 FISC is not an Article III court
- 5 FISA constitutionality
- 6 Rep. Nadler says you don't need a second warrant
- 7 Merkely FISA transparacny legislation
- 8 Rep. King hypocrisy
- 9 Verizon business unit
- 10 What should be publicly known about surveillance?
- 11 Capabilities vs. authority
Good reform proposals
<u><a href="http://livewire.talkingpointsmemo.com/entry/guardian-editor-says-uk-security-experts-destroyed-hard#comment-1008429109">Spiny Norman</a></u>
Those are hugely important questions. It is, of course, a lot easier to complain than to make workable solutions. I have a few thoughts but they are by no means complete.
I have a few thoughts but they are by no means complete.
• The NSA (and FBI) need a really well-funded, adversarial obudsman. With teeth. This office must answer directly to Congress and have the ability to conduct external audits of NSA activities.
• Ditto the FISC.
• The FISC judges need to be appointed through a more transparent and inclusive mechanism (not by the SCOTUS Chief Justice.)
• Secret interpretations of FISA and USA PATRIOT need to be eliminated.
• Classification of documents needs to be massively scaled back across the federal government.
• Archives of intercept data and metadata kept by the NSA need to be rigorously sunsetted.
• Access to NSA intercept data by private contractors (who are not subject to constitutional restrictions) needs to be massively restricted. The Snowden leak could not have occurred if access to the data streams was properly controlled. I am at least as worried about abuse of the NSA archives by private contractors as I am about government employees.
• Perhaps most importantly: legal mechanisms need to be in place to assist citizens in gaining standing in privacy and surveillance lawsuits. The main reason that so much surveillance has been immune to legal scrutiny is the difficulty of establishing standing. With standing suits go forward, discovery can occur, and proper constitutional scrutiny can follow.
I have long argued the issues
The reality is that I have long argued (over a decade) that the PATRIOT Act, the 2001 AUMF ceded way too much authority and ground to the Executive branch. Particularly how those laws, hastily passed without any real debated in the panic after 9/11, intersects with FISA.
But that facts are that from what has been "leaked" this all still fully within FISA law and the law under the PATRIOT Act, and also had Congressional oversight and judicial review.
Furthermore the collection of metadata was upheld by the courts, up to and including the SCOTUS, over 3 decades ago, <u><a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=442&invol=735">back in June of 1979</a></u>, when it found that telecom metadata gathering without a showing of probable cause is not a violation of the Fourth Amendment's protection against "unreasonable search and seizure".
If you think the laws are too permissive? You and many others including myself might agree.
Do you think the FISA is too circumspect to the executive? That's a debate worth having, and I lean towards the position that it might not hold the executive to account as much as it should.
Great, welcome to the party, you are a decade-plus later to it than a lot of us.
More to the point, if you want something done about it, then get Congress to do its job and change the law(s) and (again, something I have been saying for literally over a decade).
"Domestic" or "Foreign" data?
IP data goes over the same/any "wires" whether they are "domestic" or "foreign" as to their initiation source and the protocol tags themselves are what identifies source to destination, not by what network wires they travel, what servers they might pass through or reside in. This is by design.
For example, I work for a major corporation. My work email when I send something out from my computer at my usual workplace, is here in Oregon. But my company's data servers are overseas. Is my email from my work email account "domestic" or "overseas"...?
When I access my work email remotely while I am in Vancouver BC for the weekend?
Is my email "domestic" or "foreign"..?
FISC is not an Article III court
"The defendants also contend that FISA violates Article III of the Constitution because the Foreign Intelligence Surveillance Court is not a proper Article III court and because the Act delegates judicial power to the Executive Branch. In addition, the defendants argue that the structure of the FISA court denies its judges their judicial independence, making the Court a rubber stamp. These arguments were raised and rejected in Falvey, supra, 540 F.Supp. at 1313 n. 16, and Megahey, supra, 553 F.Supp. at 1197 and, for the reasons there set forth, I also reject these contentions.
The FISA court is wholly composed of United States District Court judges, who have been appointed for life by the President, with the advice and consent of the Senate, and whose salaries cannot be reduced. See 50 U.S.C. §§ 1803(a) and (b). The defendants' contentions that because of their limited term on the FISA court, these judges lose their Article III status, has no merit. Federal judges often serve on brief temporary assignments to fulfill the responsibilities of the Judicial Branch, and there is substantial precedent for specialized courts such as FISC: judges who serve by designation, pursuant to 28 U.S.C. §§ 291-93; three-judge courts, 28 U.S.C. § 2284(b)(1); the seven judges comprising the judicial panel on multidistrict litigation designated by the Chief Justice of the United States "from time to time," 28 U.S.C. § 1407(d); multidistrict litigation assigned to a judge for the limited purpose of "consolidated pretrial proceedings," 28 U.S.C. § 1407(b); and the Temporary Emergency Court of Appeals which hears appeals involving one statute, the Economic Stabilation Act, Pub.L. No. 92-210, § 211(b)(2), 85 Stat. 743, 749, Historical Note following 12 U.S.C.A. § 1904.
The ex parte nature of FISC proceedings is also consistent with Article III. Government applications for warrants are always ex parte. See, e.g., Rule 41(a) Fed.R. Crim.P. Authorizations under Title III are issued on an ex parte basis. The FISA court retains all the inherent powers that any court has when considering a warrant. There is no delegation of judicial power to the Executive Branch. See United States v. Megahey, supra, 553 F.Supp. at 1196-97.
In summary, FISA on its face is a detailed, careful effort to provide constitutional structure to electronic surveillance to obtain foreign intelligence information."
<i>United States</i> v. <i>Nicholson</i> (1997) where the court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the Sixth Amendment.
This is fully within FISA law and the law under the PATRIOT Act, and also had Congressional oversight and judicial review. Furthermore the collection of metadata was upheld by the courts, up to and including the SCOTUS, over 3 decades ago, <u><a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=442&invol=735">back in June of 1979</a></u>, when it found that telecom metadata gathering without a showing of probable cause is not a violation of the Fourth Amendment's protection against "unreasonable search and seizure".
You and I may disagree with that ruling, but until the Democrats can get another appointment on the bench to replace one of the conservatives, it will remain Constitutional and only Congress can claw it back through the legislative process.
It is not tenable that phone users have any reasonable expectation of privacy regarding the numbers they dial, the time and date that they dialed, or the length of the call since they know that they must convey such information to a third party (a telephone company) and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. Even if customer does harbor some subjective expectation of privacy, despite what the TOS spells out (that said data can and will be turned over to the gov. upon a court issued order)... this expectation is not one that society is prepared to recognize as "reasonable."
When someone voluntarily conveys numerical information to a phone company and "exposed" that information to its equipment in the normal course of business, he or she assumed the risk that the company might reveal that information to the law enforcement, cf. United States v. Miller, 425 U.S. 435 . Pp. 741-746.
Mr. Nadler (D-N.Y.) — Let me ask you the following, under Section 215, and I would also like to associate myself with the remarks that, a dragnet subpoena for every telephone records, etc. every email record although they don't do that anymore, but they could do that again tomorrow, um… and they did do it, certainly makes a mockery of the relevance to the standards of Section 215. If everything in the world is relevant, then there is no meaning to that word.
Now some of us have offered amendments to narrow that several years ago, and in retrospect maybe we should have adopted those amendments, but that's no excuse for a misinterpretation of relevance to the point where there is no such meaning to the word.
Now secondly, under Section 215 if you've gotten information from metadata and you as a result of that think that 'gee, this phone number, 873-… whatever, looks suspicious and we ought to actually get the get the contents of that phone' of that phone, do you need a new specific warrant?
FBI Director Mueller — You need at least a National Security Letter, all you have is the telephone number, you do not have subscriber information, so you need the subscriber information you would have to get a National Security Letter to get that subscriber information to…
Mr. Nadler — And to…
Mr. Mueller — And then if you wanted to do more…
Mr. Nadler — If you wanted to listen to phone…
Mr. Mueller — Then you would have to get a special, a particularized order from the FISA Court directed at that particular phone, of that particular individual.
Mr. Nadler — Now is the answer you just gave me classified?
Mr. Mueller — Is what?
Mr. Nadler — Is the answer you just gave me classified in any way?
Mr. Mueller — I don't think so.
Mr. Nadler — Ok, then I can say the following, we heard precisely the opposite at the briefing the other day. We heard precisely that ah… you could get the specific information from that telephone simply based on an analyst deciding that, and you didn't need a new warrant. In other words, what you just said is incorrect.
So there's a conflict…
Mr. Mueller — I'm not certain that's the same… an answer to the same question, I'm sorry, I didn't mean to interrupt you.
Mr. Nadler — Well I asked the question both times, and I think its the same question. So maybe you better go back and check, because someone was incorrect.
Mr. Mueller — I will do that. That is my understanding of the process.
Mr. Nadler — Ok, I don't question that it is your understanding, it was always my understanding, and I was rather startled the other day, um and ah… I wanted to take this opportunity to…
Mr. Mueller — I will be happy to clarify it.
Mr. Nadler — Thank you.
“I am pleased that the administration has reiterated that, as I have always believed, the NSA cannot listen to the content of Americans’ phone calls without a specific warrant," — Jerrold Nadler, Sunday, June 16, 2013, 11:03AM ET
Merkely FISA transparacny legislation
Rep. King hypocrisy
Former Rep. Joe Scarborough (R-FL) now MSNBC host: “We attacked the Clinton administration for not taking national security more seriously. I got to just tell you, I mean, bottom line is, if Clinton's chief of staff or top adviser had leaked the identity of a CIA agent, you and I would be up in arms and say, Clinton had to fire that person immediately. Should Karl Rove be treated at the same standard?
Rep. Peter King (R-NY): "No, in fact, I think Karl Rove should get a medal, Joe. I really mean that."
Rep. Peter King (R-NY): "And Joe Wilson has no right to complain. And I think people like Tim Russert and the others, who gave this guy such a free ride and all the media, they're the ones to be shot, not Karl Rove. Listen, maybe Karl Rove was not perfect. We live in an imperfect world. And I give him credit for having the guts."
Verizon business unit
NYT Key graphs
From the <i><a href="http://www.nytimes.com/2013/06/06/us/us-secretly-collecting-logs-of-business-calls.html?hp&_r=0">NYT</a></i>:
"The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs a Verizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”
The order does not apply to the content of the communications.
Verizon Business Network Services is one of the nation’s largest telecommunications and <b>Internet providers for corporations</b>. It is not clear whether similar orders have gone to other parts of Verizon, <b>like its residential or cellphone services</b>, or to other telecommunications carriers."
Verizon's consumer cellphone and residential services are not part of this court order.
While certainly troubling, what almost all of the reporting (save <a href="http://www.nytimes.com/2013/06/06/us/us-secretly-collecting-logs-of-business-calls.html?hp&_r=0">a few publishers</a>) fail to note is that this is <b>not</b> about consumer cellphone data. This is about Verizon Business Networks which is corporate IT services, not consumer/residential wireless (or landline) services. Consumer wireless (Verizon Wireless) is a different subsidiary company of Verizon, as is Verizon Residential, neither of which are part of this court order.
Which is why in another of my comments in this thread I stated it is troubling. But since this court order is not anywhere near what the scope it is wrongly being portrayed as by Greenwald, et al, I would caution against reading more into it than we know.
Should this be looked into by Congress? Yes.
Taken with statements made by my state's Sr. Senator, Ron Wyden, a while ago is it worrisome? You bet.
What should be publicly known about surveillance?
if you felt the details of these programs were being fairly presented, would you be happier that the issue is in somewhat broader circulation again?
Let me answer it this way.
I would welcome the discussion about privacy vs. security. It was long overdo and should have occurred before the PATRIOT Act was even brought up as a bill.
I think that would need to be seriously hashed out before anything meaningful about discussions about what the NSA or any other security program be undertaken.
That said, I am not convinced that knowing the actual schema of any electronic communications gather programs should be made public and that is the true horns of the dilemma this legitimately brings up. Because public information about such programs, while a way to help safeguard that abuse of capabilities is not occurring that same information, when public is by definition being shared with the very targets (to be clear who most people would accept as legitimate targets) have that as well.
So answering your question is a little problematic as far as whether or not this information should be public even if it was being fairly presented.
Despite the vitriol thrown in the direction of those of us who are rightly skeptical of the way (and prudence) of how the underlying documents have become public, I have always been, and continue to be concerned about needing robust oversight to prevent abuse. But the issues of how to deal with legitimate concerns about 'privacy' and potential abuse, the complexities of modern digital communication make most informed and serious discussion about how to square that circle of protecting privacy as well as carrying out legitimate security and law enforcement functions based on simplistic realities of a long gone 18th century world.
I realize even pointing that out will tar and feather me in the eyes of many who defend Snowden et al, as being a STASI lover in training, authoritarian, etc. etc. but we must as a society have the serious discussions about what it means in the 21st century where communications, transportation, and the shear lethality of a handful of extremists if so motivated are radically different than the days of horse and carriage level means of communication, black powder firearms, etc.
If you want the to/from/cc/bcc and subject lines from an email, you have to break down all the application level data, which gives you the entire message.
And therein is the crux of the massive (and I posit misinforming) aspect of the narrative about all this. Just to be clear I am not accusing you of misinforming personally, but rather these technical realities allow entirely misleading narratives by Snowden et al to be built and 99% of the public has no clue because they honestly don't understand the technical realities of how the internet, etc. works.
That said, if the metadata filtering sifts the packet but no human eyes see the rest of what most everyone considers the content, is it in any meaningful way looking at the 'content'...?
As others have tried to put it, when all email is basically a post card, and the NSA only scans for the address but the 'content' of telling Aunt Souzie 'Wish you where here because it is lively here in Hawaii'... is never looked at by human eyes... what then?
Furthermore, if we all agree that any letter/postcard from someone we legitimately suspect might be Mohammed Atta 2.0, how do you spot his letters/postcards as the fly through the same stream of letters/postcards without finding that address to scan...?
That is quite hyperbolic.
Not at all.
They started out pushing a narrative that there is no judicial oversight to the NSA with an actual court order for metadata (which BTW enjoys zero protection as being an 'unreasonable search' vis-è-vis the 4th amendment, which a lawyer like Greenwald should know), and it devolves from there.
They have been wrong about more than just PRISM, which they were fundamentally wrong about, and so on.
...the NSA can look at a ton of web data if they want to.
I demand that they have a capacity to look at any electronic communication. That however does not mean that what the entire narrative that has been put forward by the Guardian, et al, that the NSA does so, or that there are no leal or oversight in place about when looking into non-domestic electronic communication.
That in turn goes back to the issue of capability vs. policy and law, as well as the issues about how you can possibly carry out legitimate surveillance without over collection. Because of the nature of modern digital communication technology, taking a 'purist line' and closing down metadata collection and the upstream filtering and minimization systems render any possible surveillance with a particularized warrant, with 100% legitimate showing of probable cause, unworkable.
I go back once again to the analogy of not being able to look at house addresses (because looking at addresses are spun as 'collecting' or 'hovering up everything') to serve a legitimate search warrants or searches.
And as you know, many people who have forgotten more con law than you or I have ever learned, agree. And as you also know, important aspects of the current programs have never been subjected to meaningful constitutional scrutiny because of standing issues.
And as you know, most of what you feel is 'important aspects of the current programs' have long been settled case-law regarding third party metadata vis-è-vis 'unreasonable search' under the 4th.
Again, if you think that statutory and/or regulatory law should narrow that, then get Congress to narrow it.
My concern is that because of the nature of modern digital communication technology, taking a purist line and closing down metadata collection render any possible surveillance with are particularized warrant with 100% legitimate showing of probable cause unworkable. I go back once again to the analogy of not being able to look at house addresses to serve a legitimate search warrant.
Gellman's OIG audit article
The National Security Agency's Office of the Inspector General (OIG) which, like almost all other Federal departments or Agencies, has an OIG for oversight. In addition the NSA also has reporting requirements to Congress as well as being answerable to the Privacy & Civil Liberties Oversight Board (PCLOB), the ODNI, and Justice Department audits.
Again, I certainly won't pretend to know that there is 'enough' or robust enough oversight, but I find it interesting how many seem to be shown the very evidence and products of investigative oversight as somehow proof there is no oversight.