NSA and eavesdropping

[Crap Throwing Monkey]

Ever hear of pro-bono?

 

And as far as I know, I think the lawyers ARE employed by EFF.  I did a quick search and found several different articles about different cases that basically said:

 

"Attorneys from the Electronic Frontier Foundation (EFF), representing the three news organizations, argued Apple had not used all possible means in finding out the sources for the leak and should not be allowed access to information on the servers of the Web sites."

 

Not "attorneys working for EFF," but FROM EFF.  So I'm not 100% sure, but it's a pretty good bet.

 

CW

590546[/snapback]

 

Yeah...but I've never heard of pro-bono work on a class-action suit. I'm sure it happens, but the vast majority of class-action suits are 1) bull (wait a week and see how many class-action suits are filed because Google took a bullet after the close today, and people were dumb enough to buy at $400), and 2) for a hideous portion of the settlement.

 

It's a question of what's involved, too...note that the EFF story did NOT say it was a class-action suit or they were seeking monetary damages. That does not, of course, prohibit a half-dozen ambulace chasers from suing AT&T as well for monetary damages...which I wouldn't be surprised to see. Hell, I'll talk to my sister tomorrow, maybe she'll be interested.

[Tux of Borg]

What do any of these posts have to do with the topic I started? 

590307[/snapback]

 

This is an old topic that keeps getting brought back up. Echelon, Carnivore, Magic Lantern, Cyber Knight... all terms that get thrown around to strike fear into our hearts. Show me an article where someone has actually suffered because of these methods. I doubt if the FBI is stealing my credit card information, or that the NSA is posting my personal emails in the bathroom stalls for reading material. However, I've personally seen the FBI use a Trap and Trace on a terrorist cell living here in the United States. An unconventional enemy requires an unconventional method of tracking them.

[Pine Barrens Mafia]

This is an old topic that keeps getting brought back up.  Echelon, Carnivore, Magic Lantern, Cyber Knight... all terms that get thrown around to strike fear into our hearts.  Show me an article where someone has actually suffered because of these methods. I doubt if the FBI is stealing my credit card information, or that the NSA is posting my personal emails in the bathroom stalls for reading material.  However, I've personally seen the FBI use a Trap and Trace on a terrorist cell living here in the United States.  An unconventional enemy requires an unconventional method of tracking them.

590580[/snapback]

 

Stop making sense.

 

If you're an Arab Immigrant and NOT yet an American citizen, you should EXPECT to be surveilled.

[Fezmid]

This is an old topic that keeps getting brought back up.  Echelon, Carnivore, Magic Lantern, Cyber Knight... all terms that get thrown around to strike fear into our hearts.  Show me an article where someone has actually suffered because of these methods. I doubt if the FBI is stealing my credit card information, or that the NSA is posting my personal emails in the bathroom stalls for reading material.  However, I've personally seen the FBI use a Trap and Trace on a terrorist cell living here in the United States.  An unconventional enemy requires an unconventional method of tracking them.

590580[/snapback]

So because nobody (ie: you) is directly "suffering," it's ok to break the law...? It's ok to give one person complete control over the entire country? Dude, the problem is that we have these checks and balances in place for a reason. To blindly ignore them goes against the very fabric of the country.

 

Did you know that if you went to Vegas a couple of years ago that the government now has a file on you containing when you arrived, left, what you did there, what hotel and ROOM yo ustayed in? And they have no plans of getting rid of that information ever? That doesn't scare you, just a little bit...?

 

CW

[Fezmid]

Stop making sense.

 

If you're an Arab Immigrant and NOT yet an American citizen, you should EXPECT to be surveilled.

590666[/snapback]

Yeah, except it's NOT just Arab immigrents.

 

Ben Franklin would just love you guys.

 

CW

[Fezmid]

Yeah...but I've never heard of pro-bono work on a class-action suit.  I'm sure it happens, but the vast majority of class-action suits are 1) bull (wait a week and see how many class-action suits are filed because Google took a bullet after the close today, and people were dumb enough to buy at $400), and 2) for a hideous portion of the settlement. 

 

It's a question of what's involved, too...note that the EFF story did NOT say it was a class-action suit or they were seeking monetary damages.  That does not, of course, prohibit a half-dozen ambulace chasers from suing AT&T as well for monetary damages...which I wouldn't be surprised to see.  Hell, I'll talk to my sister tomorrow, maybe she'll be interested. 

590564[/snapback]

Oh, yeah, I'm sure some lawyers are going to start a class-action suit, but it won't be the EFF. Class action suits are a complete joke -- I worked for the claim company that did the Denny's discrimination suit (remember when there were a ton of reports that Denny's treated blacks unfairly, denying service, in the late 80s/early 90s?). The lawyers got millions, the claiments got around $50 if I recall. Yay. Of course they should've gotten more, but people who were not really part of the class were making crap up. You could tell because you'd read the claims and they'd be word for word what the last 10 said. We did some research and found out that someone was selling the story to people. "Pay me $20, and I'll tell you how to get in on the suit!" Sickening...

CW

[Crap Throwing Monkey]

Oh, yeah, I'm sure some lawyers are going to start a class-action suit, but it won't be the EFF.  Class action suits are a complete joke -- I worked for the claim company that did the Denny's discrimination suit (remember when there were a ton of reports that Denny's treated blacks unfairly, denying service, in the late 80s/early 90s?).  The lawyers got millions, the claiments got around $50 if I recall.  Yay.  Of course they should've gotten more, but people who were not really part of the class were making crap up.  You could tell because you'd read the claims and they'd be word for word what the last 10 said.  We did some research and found out that someone was selling the story to people.  "Pay me $20, and I'll tell you how to get in on the suit!"  Sickening...

CW

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Not to digress too much from the topic of the thread...but yes, I know. Usually, when a stock I own drops precipitously in price, I'll get as many as five offers to join a class action suit against the management ("The stock went down! It wasn't supposed to! Management's a bunch of crooks! You deserve restitution!" Uhhh...no, sometimes sh-- just happens. C'est la vie.)

 

And then there's the Providian suit...Providian used to be one of the most crooked and dishonest credit card companies out there (they charged my brother $100 to close his account. They kept holding my payments past the due date and charging me late fees and interest, until I started sending the payments return receipt. ) Conservatively, they stole about $75 from me. I was happy to see them get sued and be part of the class-action suit. And years later...I've gotten about five dollars out of the suit. Maybe. Biggest check I ever got was for $1.28. The lawyers got yachts.

 

And to fully expect to see this happen as a result of unconstitutional government activity that is nonetheless effectively not illegal because of the poorly designed set of knee-jerk reactionary fear-mongering laws and precedents governing it...

[Pine Barrens Mafia]

Yeah, except it's NOT just Arab immigrents. 

 

Ben Franklin would just love you guys.

 

CW

590854[/snapback]

 

OK, so let's say I start placing a high volume of calls to Beirut or Damascus. Don't you think it's prudent for a light to go on somewhere in the NSA?

 

I do.

 

But then again, perhaps allowing planning to occur over the phone is preferable.

[Fezmid]

OK, so let's say I start placing a high volume of calls to Beirut or Damascus. Don't you think it's prudent for a light to go on somewhere in the NSA?

 

I do.

 

But then again, perhaps allowing planning to occur over the phone is preferable.

590984[/snapback]

Yes, it's prudent -- but the government NEEDS TO GET A WARRANT FIRST! It all goes back to checks and balances; I don't want one person to be able to do whatever the hell they want without having to be accountable to someone else. Why do you think our forefathers made three separate branches of the government?

 

It's the violation of the checks and balances that I'm opposed to.

 

CW

[Crap Throwing Monkey]

Yes, it's prudent -- but the government NEEDS TO GET A WARRANT FIRST!  It all goes back to checks and balances; I don't want one person to be able to do whatever the hell they want without having to be accountable to someone else.  Why do you think our forefathers made three separate branches of the government?

 

It's the violation of the checks and balances that I'm opposed to.

 

CW

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Actually, there is and HAS BEEN a practical gray area where international activities is concerned...a gray area that's only been exacerbated by the PATRIOT Act and general paranoia post-9/11.

 

I happen to agree that warrants should be gotten in ANY cases of domestic surveillence...but the fact is that past presidents have not only used warrantless surveillence and search and seizure in cases involving cooperation with foreign agents, but have successfully argued for the legitimacy of the evidence in court and got it admitted in criminal cases. Wrong though it may be, there's ample precedent for the Bush administration to fall back on in this case.

[Pine Barrens Mafia]

Yes, it's prudent -- but the government NEEDS TO GET A WARRANT FIRST!  It all goes back to checks and balances; I don't want one person to be able to do whatever the hell they want without having to be accountable to someone else.  Why do you think our forefathers made three separate branches of the government?

 

It's the violation of the checks and balances that I'm opposed to.

 

CW

591006[/snapback]

 

So long as the warrant doesn't interfere with stopping an IMMEDIATE threat, then I'm OK with that.

[Fezmid]

Actually, there is and HAS BEEN a practical gray area where international activities is concerned...a gray area that's only been exacerbated by the PATRIOT Act and general paranoia post-9/11. 

 

I happen to agree that warrants should be gotten in ANY cases of domestic surveillence...but the fact is that past presidents have not only used warrantless surveillence and search and seizure in cases involving cooperation with foreign agents, but have successfully argued for the legitimacy of the evidence in court and got it admitted in criminal cases.  Wrong though it may be, there's ample precedent for the Bush administration to fall back on in this case.

591018[/snapback]

That's why FISA was established in the mid-70s though.

 

CW

[Fezmid]

So long as the warrant doesn't interfere with stopping an IMMEDIATE threat, then I'm OK with that.

591023[/snapback]

Show me one case where they've stopped an IMMEDIATE threat with the Patriot Act, wiretapping, etc. There hasn't been a SINGLE case where this has helped, because if they had stopped something important, you can be sure they would be trumpeting it as a success and saying, "See public, THIS is why we do what we do! Trust us, we know what we're doing!" But in 4 years, not a single major success story based on PATRIOT, NSA, etc.

 

It's just not necessary. Play within the system, please.

 

Another case where the FBI tried seizing computers from a library without a warrant:

http://yro.slashdot.org/article.pl?sid=06/02/01/1451221

 

Kudos to the librarian/director who said, "No, get a warrant first."

 

CW

[Crap Throwing Monkey]

That's why FISA was established in the mid-70s though.

 

CW

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And despite FISA, there is still a practical gray area that has been used by past presidents yada yada yada...

 

The real issue isn't "Bush bad"...or "Clinton bad", or "Echelon bad", or whatever. The real issue is an awkward, half-assed, patchwork set of laws that fail to address real national security concerns combined with a patchwork set of national security practices that fail to consistently meet the constitutional standards this country is founded on. But no one wants to discuss the real issue, because it's hard...

[Crap Throwing Monkey]

Show me one case where they've stopped an IMMEDIATE threat with the Patriot Act, wiretapping, etc.  There hasn't been a SINGLE case where this has helped, because if they had stopped something important, you can be sure they would be trumpeting it as a success and saying, "See public, THIS is why we do what we do!  Trust us, we know what we're doing!"  But in 4 years, not a single major success story based on PATRIOT, NSA, etc.

591126[/snapback]

 

Untrue, actually. Just because they're not published or marketed, doesn't mean they didn't happen. The threat against Wall Street from about a year or so ago, for instance...listening to the media reports you got the impression that it was suddenly uncovered but found to be a false alarm within a week of being announced; the truth was that it was being worked for months before it ever became public knowledge and was pretty much stopped cold.

 

In fact, you're far more likely to hear about attacks that succeed than those that are stopped, simply because no one wants to go public about a stopped attack (the terrorists don't want to admit failure, the government doesn't want to risk means and methods being publicly announced), but a successful attack is out in the open for all to see.

[Pine Barrens Mafia]

Untrue, actually.  Just because they're not published or marketed, doesn't mean they didn't happen.  The threat against Wall Street from about a year or so ago, for instance...listening to the media reports you got the impression that it was suddenly uncovered but found to be a false alarm within a week of being announced; the truth was that it was being worked for months before it ever became public knowledge and was pretty much stopped cold.

 

In fact, you're far more likely to hear about attacks that succeed than those that are stopped, simply because no one wants to go public about a stopped attack (the terrorists don't want to admit failure, the government doesn't want to risk means and methods being publicly announced), but a successful attack is out in the open for all to see.

591145[/snapback]

 

Thanks for saving me the effort of explaining that.

[Mickey]

Actually, there is and HAS BEEN a practical gray area where international activities is concerned...a gray area that's only been exacerbated by the PATRIOT Act and general paranoia post-9/11. 

 

I happen to agree that warrants should be gotten in ANY cases of domestic surveillence...but the fact is that past presidents have not only used warrantless surveillence and search and seizure in cases involving cooperation with foreign agents, but have successfully argued for the legitimacy of the evidence in court and got it admitted in criminal cases.  Wrong though it may be, there's ample precedent for the Bush administration to fall back on in this case.

591018[/snapback]

I think there is a littel more to the story though. Warrantless surveillance within the US for national security purposes was found to be unconstitutional in 1972 by the SCOTUS. What Presidents might have done before then is not relevant to what is or is not legal today. It wasn't illegal before 1972. Nothing from that era would be a valid precedent after 1972. A lot of the grey was cleared up then and more so in 1978.

 

Recognizing that surveillance was needed for security and that it was illegal, congress came up with FISA to try and solve the problem. FISA made it all legal once again as long as its pretty minimal safeguards were observed.

 

That is a common misperception of FISA. It wasn't drawn up to trim back surveillance abilities. Quite the contrary. It was drawn up to expand them, to essentially nullify the SCOTUS decision that made that kind of surveillance illegal.

 

The Clinton administration performed some searches without warrants, not taps or surveillance but actual physical searches. Physical searches were not covered by FISA hence, the Clintons were arguing that FISA didn't apply to the searches they performed. They were right, it didn't.

 

FISA was amended in 1995 to include physical searches. That is the situation, I believe, Jamie Gorelick was talking about that you quoted in another thread where we were discussing this. The Clinton's never argued that they had the authority to disregard FISA, FISA didn't cover physical searches. Once it was expanded to cover them, that was it. Clinton never argued that FISA was something he had the inherent authority to disregard.

 

Just because he didn't argue it doesn't mean that the point has no merit. I just don't think that the "other presidents did it" defense is correct as to any pre-1972 or even better, pre-1978 President. If that argument is to have any merit at all, I think he would have to show that a post-1978 President was tapping and searching or whatever in violation of FISA. Maybe I missed it but I don't think he has argued that.

 

I know you are not really defending any of this, just analyzing the debate.

 

For me, I just still don't really get it. My understanding is that if Alberto certifies it is a bad guy or that he has a decent reason for thinking its a bad guy then they can tap them inside the US, outside the US, whatever and can do so without a warrant for a whole year with extensions available. They just have to notify a few people in congress and the FISA Court. Its warrantless, its fast and its legal. They don't have to ask permission, they just have to notify. I have heard a lot of back and forth but I haven't heard any explanation why that was not good enough.

 

I want to tap bad guys as much as anyone and it looks to me that FISA permits exactly that. Why didn't they avail themselves of that very large legal butt coverage?

[Crap Throwing Monkey]

I think there is a littel more to the story though.  Warrantless surveillance within the US for national security purposes was found to be unconstitutional in 1972 by the SCOTUS.  What Presidents might have done before then is not relevant to what is or is not legal today.  It wasn't illegal before 1972.  Nothing from that era would be a valid precedent after 1972.  A lot of the grey was cleared up then and more so in 1978. 

 

Actually, I was specifically thinking of presidents since FISA, since as you say anyone before 1972 doesn't really count, given the different laws.

 

...

That is a common misperception of FISA.  It wasn't drawn up to trim back surveillance abilities.  Quite the contrary.  It was drawn up to expand them, to essentially nullify the SCOTUS decision that made that kind of surveillance illegal.

 

Which is not a misconception I shared...and is a perfectly valid reaction to the SCOTUS decision. SCOTUS decides something is against the law...change the law. For those who don't know, it's called "checks and balances". FISA's still illegal under many interpretations of the Constitution...but that still doesn't mean it can't be made legal via a constitutional amendment (and for the record: I'd hate to see that. Any amendment, no matter how well-intended, weakening our rights against illegal search and seizure is a dangerous thing.)

 

The Clinton administration performed some searches without warrants, not taps or surveillance but actual physical searches.  Physical searches were not covered by FISA hence, the Clintons were arguing that FISA didn't apply to the searches they performed.  They were right, it didn't. 

 

FISA was amended in 1995 to include physical searches.  That is the situation, I believe, Jamie Gorelick was talking about that you quoted in another thread where we were discussing this.  The Clinton's never argued that they had the authority to disregard FISA, FISA didn't cover physical searches.  Once it was expanded to cover them, that was it.  Clinton never argued that FISA was something he had the inherent authority to disregard.

 

Actually Clinton, or more accurately Gorelick, did. In particular, from the text of Gorelick's same statement to the House Intelligence Committee:

 

The Department of Justice has consistently taken the position that the Fourth Amendment requires all serches to be reasonable, including those conducted for foreign intelligence purposes in the United States or against U.S. persons abroad.  For the reasons I just mentioned, however, we believe that the warrant clause of the Fourth Amendment is inapplicable to such searches.  We are satisfied, therefore, that Attorney General approval of foreign intelligence searches pursuant to the President's delegation of authority in Executive Order 12333 meets the requirements of the Constitution.

 

Pre-FISA case law relating to electronic surveillance in the Fifth, Ninth, Third, and Fourth Circuits have confirmed this view.  Additionally, when the Supreme Court determined that warrant requirements applied to electronic surveillance for domestic intelligence purposes in the Keith case, it specifically declined to apply this holding to foreign powers or their agents.

 

Emphasis mine. And that's regardless of the case law establishing the equivalence of wiertaps and physical searches (which I know exists - it has to, because it HAS to have been argued already that wiretaps are not explicitly covered by the Fourth Amendment, as the Fourth Amendment was written before the idea of wiretaps even existed. Case law establishing the equivalence is necessary to establish Fourth Amendment protection against wiretaps).

 

The central point, though, is the one I keep hammering as being ill-considered: the difference between criminal law and national security. In the current War on Terrorism, we have a situation which the Clinton administration treated as strictly criminal, the Bush administration treats as strictly national security, but which in truth lies in a definite gray area in between the two. Terrorist groups fighting against liberal western Democracies by expressed intent conduct military campaigns under the legal protections of the criminal code, mixing the domains of national security and criminal justice in a way that makes it damned awkward to fight them, as we're seeing now. Or, for another example...as the Israelis have learned with the Palestinians. The Palestinians claim to be fighting a military intifada against Israel...but turn around and complain about Israeli brutality and oppression when they in turn fight the Palestinians militarily. That is simply the nature of how terrorist organization fights. Unless you address that gray area sufficiently - which I don't believe anyone has done, from FISA on down to the PATRIOT Act - the government is going to continue with fundamentally unconstitutional acts, for the simple reason that to successfully combat terrorism they have to fight in the same gray area that the terrorist occupy.

 

 

Just because he didn't argue it doesn't mean that the point has no merit.  I just don't think that the "other presidents did it" defense is correct as to any pre-1972 or even better, pre-1978 President.  If that argument is to have any merit at all, I think he would have to show that a post-1978 President was tapping and searching or whatever in violation of FISA.  Maybe I missed it but I don't think he has argued that. 

 

I know you are not really defending any of this, just analyzing the debate.

 

Not even so much analyzing the debate as playing devil's advocate. "Other presidents did it" is a correct legal defense only in that it establishes precedent. I don't agree with Carter, Reagan, or Clinton using warrantless wiretaps either, but all have made arguments that the powers of the Executive in performing searches - physical or otherwise, as established by case law - in the interest of national security is absolute. It is a relatively simple thing for anyone representing the current administration to argue not only that the precedent is long-argued and long-established, but that the lack of any contrary legal opinion in the quarter century of precedent implies a de facto judicial acceptance of the practice.

 

And while I disagree with the practice itself...I'm not so sure the argument itself is wrong. That's less a function of the practice of warrantless wiretaps than the half-assed patchwork knee-jerk Persian-bazaar Mickey Mouse nature of the precedent and law itself. Since FISA was passed - for a completely different set of circumstances, I might add...and which was almost immediately challenged by the Carter administration as well, I might also add - I have yet to see any indication of any systematic analysis of the laws and issues involved here.

 

And the ramifications go far deeper than the current "scandal" in the fight against terrorism. For example...if a joint Mexican-American anti-drug operation in Mexico leads to intelligence concerning a Venezuelan cartel prompting the interception of emails sent from someone in Saudi Arabia to someone in Afghanistan that end up being used as evidence in an anti-terrorism trial in Detroit...is the evidence acceptable in a criminal trial or not? Yes, it seems like an unrealisticly complex example...except that we know that Islamic terrorist organizations with roots in Saudi Arabia and Afghanistan cooperate with South American drug cartels to penetrate the US-Mexico border. I could complicate it even further by postulating a warrant in India to intercept the emails as they're originated from an Indian ISP...but they're actually intercepted by assets in South Korea as they're routed through a Chinese server. Apply FISA to that rat's nest. Apply any legal precedent to that rat's nest. The issue's been given thought...but the more I look into it (and I have been for maybe three years) the more I become convinced that it hasn't been given the systematic analysis it requires with regards to the current environment.

 

For me, I just still don't really get it.  My understanding is that if Alberto certifies it is a bad guy or that he has a decent reason for thinking its a bad guy then they can tap them inside the US, outside the US, whatever and can do so without a warrant for a whole year with extensions available.  They just have to notify a few people in congress and the FISA Court.  Its warrantless, its fast and its legal.  They don't have to ask permission, they just have to notify.  I have heard a lot of back and forth but I haven't heard any explanation why that was not good enough.

 

I want to tap bad guys as much as anyone and it looks to me that FISA permits exactly that.  Why didn't they avail themselves of that very large legal butt coverage?

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I think you don't get it because you're looking at it as who you are: a lawyer. You have an automatic bias to look at these things in terms of criminal law. It's only natural...people in national security I know (and I presume the President...and past ones; what prompted many of the Clinton administration's issues concerning this is the Aldrich Ames case was treated as a national security issue before being a criminal case) have an equal bias towards looking at it as a national security issue. No one's really reconciled the two points of view yet. I have the luxury of seeing both points of view...and I sure haven't reconciled them yet. And I'm very thankful it's not my job to...just discussing it on a message board is messy enough.

[Mickey]

OK, so let's say I start placing a high volume of calls to Beirut or Damascus. Don't you think it's prudent for a light to go on somewhere in the NSA?

 

I do.

 

But then again, perhaps allowing planning to occur over the phone is preferable.

590984[/snapback]

It absofreakinglutely should. And they can, legally. Under FISA they could tap the crap out of you without a warrant for a whole year. All they had to do to comply with the law would be to notify the FISA court, a few congressional committee heads and have Alberto certify that you are a bad guy. What you say should be done could have been done, easily, and legally under FISA. This isn't about needing a warrant to tap, they can tap without a warrant under FISA utilizing a number of procedures.

 

Arguing that "We have to listen in on bad guys" is pointless, everyone agrees that we have to and that the need for a warrant shouldn't stop us, FISA allows for that by providing numerous legal methods for warrantless taps and even more numerous methods to get an easy-as-pie warrant.

[Pine Barrens Mafia]

It absofreakinglutely should.  And they can, legally.  Under FISA they could tap the crap out of you without a warrant for a whole year.  All they had to do to comply with the law would be to notify the FISA court, a few congressional committee heads and have Alberto certify that you are a bad guy.  What you say should be done could have been done, easily, and legally under FISA.  This isn't about needing a warrant to tap, they can tap without a warrant under FISA utilizing a number of procedures.

 

Arguing that "We have to listen in on bad guys" is pointless, everyone agrees that we have to and that the need for a warrant shouldn't stop us, FISA allows for that by providing numerous legal methods for warrantless taps and even more numerous methods to get an easy-as-pie warrant.

592024[/snapback]

 

OK, well, what if I really AM a bad guy, but someone along the chain decides I'm not?