Judge rules Bush spying illegal according to law passed by Congress. Congress caves.

[The Heretic]

http://blog.wired.com/27bstroke6/2008/07/analysis-nsa-sp.html

Analysis: NSA Spying Judge Defends Rule of Law, Congress Set to Strip His Power
By Ryan Singel July 03, 2008 | 1:47:06 PMCategories: NSA

Just days before the Senate will convene to give a final blessing to President Bush's secret, warrantless wiretapping program, a federal court judge ruled that his legal justification for the surveillance has no legal merit.

He's the same judge Congress is trying to save the nation's telecoms, such as AT&T, Verizon and Sprint, from having to face in court.
Late Wednesday, U.S. District Chief Judge Vaughn Walker issued a ruling (.pdf) in a case against the government alleging illegal spying, finding that in 1978 Congress had clearly set out the rules for wiretapping inside the United States and that Bush's claims to have inherent authority outside of those rules did not pass Constitutional muster.

Congress appears clearly to have intended to -- and did -- establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

Walker, the chief judge of the Northern District of California, affirmed that the Foreign Intelligence Surveillance Act is the exclusive legal method for conducting surveillance inside the United States against suspected spies and terrorist. The Bush Administration argues that Congress's vote to authorize military force against Al Qaeda and the president's inherent war time powers were exceptions to the exclusivity provision.

Not so, according to Walker:
This provision and its legislative history left no doubt that Congress intended to displace entirely the various warrantless wiretapping and surveillance programs undertaken by the executive branch and to leave no room for the president to undertake warrantless surveillance in the domestic sphere in the future.

As Threat Level pointed out last night, the ruling is likely to have little real consequence other than embarrassing Congress for failing to have the courage to stand up to defend the laws it itself passed. Instead of holding hearings and sending subpoenas, Congress is set to largely legalize dragnet surveillance being set up inside American telecom infrastructure and to make it very clear that they are serious about stopping warrantless wiretapping, they are adding exclamation points to the exclusivity provision.

They will also likely give retroactive amnesty to telecom companies that agreed to illegal and sweeping surveillance requests from the same government agencies that dole out fat secret contracts to the very same telecom companies.

So thanks to Congress's pending meddling with the courts in capitulation to the President, Vaughn Walker's ruling is the closest we will likely come to a judicial ruling on the limits of presidential power to spy on Americans.

Judge Vaughn Walker is no raging San Francisco liberal. He was appointed to the bench by President George H W Bush, and is known for his intellect and libertarian streak.

Walker also ruled that the government's claims that the case would endanger national security did not overrule the provisions of law that let a spied-upon person sue the government for breaking the law.
But Walker dismissed the underlying case, which was based on a Top Secret document accidentally provided to American lawyers for a Muslim charity that the government was in the process of designating as a terrorist organization. The plaintiffs have been barred from using the document to prove they were spied on and thus can not prove standing. If they can find another way to prove they were spied on, they can refile the suit.

He's the same judge who's overseeing all the cases against the telecoms.
When the Senate votes Tuesday, they are voting to keep Judge Walker from examining whether the nation's largest telecoms massively violated federal privacy laws by helping the government spy on Americans.
The vote for or against amnesty not about whether telecoms participate in the future. In the future, they are supposed to get court orders -- that's the promise of the bill.

The planned July 8 vote is whether or not Americans can get justice for a violation of federal law, or whether some of the nation's largest companies -- and by extension, the nation's highest elected officials -- are above the law.

 

[The Heretic]

http://www.wired.com/science/discoveries/news/2007/03/72811

Top Secret: We're Wiretapping You
Ryan Singel 03.05.07
It could be a scene from Kafka or Brazil. Imagine a government agency, in a bureaucratic foul-up, accidentally gives you a copy of a document marked "top secret." And it contains a log of some of your private phone calls.

You read it and ponder it and wonder what it all means. Then, two months later, the FBI shows up at your door, demands the document back and orders you to forget you ever saw it.

By all accounts, that's what happened to Washington D.C. attorney Wendell Belew in August 2004. And it happened at a time when no one outside a small group of high-ranking officials and workaday spooks knew the National Security Agency was listening in on Americans' phone calls without warrants. Belew didn't know what to make of the episode. But now, thanks to that government gaffe, he and a colleague have the distinction of being the only Americans who can prove they were specifically eavesdropped upon by the NSA's surveillance program.

The pair are seeking $1 million each in a closely watched lawsuit against the government, which experts say represents the greatest chance, among over 50 different lawsuits, of convincing a key judge to declare the program illegal.

Belew's bout with the Terrorist Surveillance Program began in 2004, when he was representing the U.S. branch office of the prominent Saudi Arabian charity Al-Haramain. Formerly one of the largest charities in Saudi Arabia, Al-Haramain worked to spread a strict view of Islam through philanthropy, missionary work and support for mosques around the world.

Federal officials were investigating the Ashland, Oregon, branch of the group for alleged links to terrorism, and had already frozen the charity's U.S. assets. Belew was one of several lawyers trying to keep Al-Haramain off a U.S. Treasury Department watch list -- an effort that sent much paperwork flying back and forth between the attorneys and the Treasury Department's Washington D.C. headquarters across the street from the White House.

On Aug. 20, 2004, fellow Al-Haramain attorney Lynne Bernabei noticed one of the documents from Treasury was marked "top secret." Bernabei gave the document to attorneys and directors at Al-Haramain's Saudi Arabia headquarters, and gave a copy to Belew. The document was a log of phone conversations Belew and co-counsel Asim Ghafoor had held with a Saudi-based director for the charity named Soliman al-Buthi.

Al-Buthi was a Saudi government employee who volunteered as coordinator for Al-Haramain's North American branches, including the Oregon branch. In a telephone interview with Wired News, al-Buthi says he's now general manager for the environmental department of the city of Riyadh, working on an anti-bird flu project. He denied having any links to terrorism, now or in 2004. "I feel that Islam is best spread by wisdom not by arms or violence," al-Buthi says.

Despite al-Buthi's claims of innocence, al-Buthi and Al-Haramain's American branch were added to the government's public list of terrorists on Sept. 9, 2004, just weeks after the government turned over the call log to the charity's attorneys. It's not clear when officials realized they'd given a highly classified document to an organization they considered terrorist, but the FBI showed up at Belew's office in October and demanded the call log back, advising the lawyer not to attempt to remember the document's contents.

By then, Belew had given a copy of the document to Washington Post reporter David Ottaway, who had been writing about how the government investigated and listed individuals and groups suspected of funding terrorism. Ottaway did not report on the classified call log, and when the FBI called, the Post dutifully handed over its copy.

That might have been the end of it. But in December 2005 The New York Times revealed that the government had been spying on Americans' overseas communications without warrants, and Al-Haramain's lawyers realized why the FBI had been so adamant about getting the document back.

"I got up in the morning and read the story, and I thought, 'My god, we had a log of a wiretap and it may or may not have been the NSA and on further reflection it was NSA," says Thomas Nelson, who represents Al-Haramain and Belew. "So we decided to file a lawsuit."

The lawyers retrieved one of the remaining copies of the document -- presumably from Saudi Arabia -- and used it to file a complaint in U.S. District Court in Oregon in February of last year. They sought damages from the government of $1 million each for Belew and Ghafoor, and the unfreezing of Al-Haramain's assets, because that action relied on the allegedly illegal spying.

 

[The Heretic]

http://www.wired.com/science/discoveries/news/2007/03/72811?currentPage=2

Top Secret: We're Wiretapping You
Ryan Singel 03.05.07
The lawsuit is poised to blow a hole through a bizarre catch-22 that has dogged other legal efforts to challenge the Bush administration's warrantless surveillance.

Since the 2005 Times story, and subsequent acknowledgment of the surveillance by the Bush administration, some 50-odd lawsuits have sprung up around the NSA program, taking on the government and various telecom companies who are allegedly cooperating in spying on their customers, including BellSouth, Verizon and Sprint.

Justice Department and phone company lawyers have asserted that the plaintiffs in those cases don't have legal standing to sue, because they have no proof that they were direct victims of the eavesdropping. At the same time, the government claims it doesn't have to reveal if any individual was or was not wiretapped because the "state secrets privilege" permits it to withhold information that would endanger national security.

The tangible document makes Belew's case uniquely positioned to cut through that thicket, says Shayana Kadidal, an attorney with the Center for Constitutional Rights, which represents individuals being held in Guantanamo Bay. The center is also suing to stop the surveillance, but lacks Belew's concrete evidence of monitoring -- arguing instead that the possibility of being monitored hampers its legal work.

"The government's line is that if you don't have evidence of actual surveillance, you lose on standing," says Kadidal. "Out of all the cases, this is the only one with evidence of actual surveillance."

That evidence also gives the courts enough to rule immediately on whether the president had the authority to spy on Belew and Ghafoor without a court order, said Jon Eisenberg, one of Belew's lawyers. "We know how many times he's been surveilled," Eisenberg told a judge last month. "There is nothing left for this court to do except hear oral arguments on the legality of the program."

The Justice Department isn't ready to concede that the two attorneys were swept into the NSA's extrajudicial surveillance. "The government has never confirmed or denied whether plaintiffs were surveilled, much less surveilled under the Terrorist Surveillance Program," spokesman Dean Boyd wrote in an e-mail to Wired News.

But if the document is a harmless memo unrelated to NSA surveillance, it's unexpectedly agitating government spooks.

Soon after the lawsuit was filed, the document was whisked out of the courthouse and into a Justice Department-controlled secure room known as a Secure Compartmented Information Facility in Portland, Oregon. According to government filings, it remains classified top secret and contains "sensitive compartmented information" -- meaning information that concerns or is derived from intelligence sources, methods or analytical processes, according to the defense and intelligence communities' own definition.

Even the lawyers who filed the document with the court are no longer allowed to see it; instead, they've been permitted to file declarations, under seal, based on their memory of its contents.

Other aspects of the case also support the plaintiffs' interpretation of the document. Last year, U.S. District Judge Garr King in Portland examined the document and read classified briefs filed by the Justice Department. Then he ordered the government to meet with the plaintiffs to discuss turning over more documents in discovery. It's not likely the court would have permitted the case to continue if the evidence didn't, in fact, indicate that the pair had been under surveillance.

And if the surveillance had been court ordered and lawful, King would have been obliged to dismiss the lawsuit. Under the Foreign Intelligence Surveillance Act, or FISA, targets of counter-intelligence or counter-terrorism surveillance can only sue the government when no warrant has been issued. Lawyers for Belew and Ghafoor seize on this point. "If there was a FISA warrant, the whole case would have crumbled on the first day," Nelson says. "Its pretty obvious from the government's conduct in the case, there was no warrant."

 

[The Heretic]

http://www.wired.com/science/discoveries/news/2007/03/72811?currentPage=3

Top Secret: We're Wiretapping You
Ryan Singel 03.05.07
Justice department lawyers have argued that, even if the pair of lawyers were monitored, judging the president's authority to do so requires looking at the specific reasons why the duo were surveilled. And those facts would be national secrets that would tip off terrorists, so no court can ever rule on the program.

"This is not to say there is no forum to air the weighty matters at issue, which remains a matter of considerable public interest and debate, but that the resolution of these issues must be left to the political branches of government," Justice Department lawyers wrote in a brief on the case.
But the government has a new, and not necessarily friendly, judicial audience for its no-judges-allowed argument. In August, a special court ordered Belew's lawsuit to be consolidated into a single proceeding comprised of 54 other NSA-related lawsuits, before U.S. District Court Chief Judge Vaughn Walker in San Francisco.

Walker has presided over the year-old class-action lawsuit brought by the Electronic Frontier Foundation against AT&T for the phone company's alleged cooperation with the NSA program. The judge made waves in July when he issued a landmark ruling that allowed the AT&T case to proceed, despite the government's claim that the suit must be thrown out because it involved national secrets. Walker ruled that the state-secrets privilege did not apply to the entirety of the case, because the government had admitted the program existed. (Walker recently rejected a motion filed by Wired News seeking the unsealing of evidence in the case.)

The government has appealed that state secrets decision to the 9th Circuit Court of Appeals, and asked the judge to put a stop to all 55 cases pending that appeal. But Walker, a libertarian-leaning Republican, has kept the cases moving, noting that any decision from the appeals court is likely to wind through the court system up to the Supreme Court -- a process that could take years.
Belew's lawsuit, his lawyers submit, is a chance to short circuit that process entirely.

In a hearing in early February, Eisenberg told Walker that the classified document sets the Belew case apart from the other cases, because the judge has enough evidence to decide whether the warrantless surveillance was illegal, without waiting for the 9th Circuit to decide the state secrets issue.

"You need only read the statutes to decide, 'Does the president have the right to do this without a warrant?'" Eisenberg said.

Walker is expected to rule in March on whether to stay the case or set a hearing date, and the document will likely be moved, under guard, from the Portland secure facility to San Francisco, where Walker can review it.

In the meantime, the NSA program is undergoing changes.

In a separate lawsuit last August, Michigan U.S. District Court Judge Anna Diggs Taylor found the NSA surveillance program unconstitutional and illegal -- a decision that's now under appeal in the 6th Circuit. Facing that ruling and growing political pressure, in early January, Attorney General Alberto Gonzales essentially announced the end of the warrantless spying, saying the NSA program will continue, but would begin getting "innovative" court orders from the foreign intelligence court.

With the program now reformed, the Justice Department has asked for several of the lawsuits against the government to be dismissed as moot.

Al-Buthi is now a "specially designated global terrorist," according to the Treasury Department, and he's under indictment in the United States for failing to declare $150,000 in travelers checks raised to help Chechnyan refugees when he last flew out of the country. He told Wired News that he had always declared money when entering the United States, but wasn't aware he needed to do the same when leaving. He says he's been interrogated twice by Saudi officials and cleared of any wrongdoing.

 

[TurdFergeson]

See:

"Cointelpro"

And

http://en.wikipedia.org/wiki/ECHELON

"Total Information Awareness"

http://www.ufos-aliens.co.uk/pinegap.jpg

Nothing new, really.

 

[The Heretic]

http://arstechnica.com/news.ars/pos...mps-state-secrets-binds-executive-branch.html

Judge: FISA trumps state secrets, binds executive branch
By Julian Sanchez | Published: July 03, 2008 - 02:48PM CT

The Foreign Intelligence Surveillance Act provides the "exclusive means" for electronic eavesdropping within the US, a federal district court judge in California ruled yesterday, and explicitly supersedes the government's claim that it may invoke the "state secrets" privilege to shield documents from court scrutiny. The plaintiffs in the suit against the government, the Al-Haramain Islamic Foundation, now have 30 days to show—without recourse to secret documents—that they were targets of government wiretaps. But the language of the decision also strongly suggests that if they do, any surveillance that occurred outside the bounds of FISA will be found unlawful, notwithstanding the president's assertion of an "inherent authority" to ignore the law in the name of national security.

The Al-Haramain case has its origins in a government blunder that tore a rare hole in the veil of secrecy surrounding the National Security Agency's surveillance programs: The foundation was accidentally given a classified document, which the government has since reclaimed, showing that its directors' telephone conversations had been intercepted. An appeals court later ruled that, notwithstanding the inadvertent disclosure, that document should remain under seal, and the government has sought to invoke its privilege to protect state secrets in order to have the case dismissed.

But in yesterday's 56-page opinion, Judge Vaughn R. Walker ruled that in Section 1806 of the Foreign Intelligence Surveillance Act, Congress provided specific procedures by which "aggrieved persons" may have sensitive information reviewed in camera by the courts, thereby preempting the common law protection for state secrets pertaining to the type of surveillance covered by FISA. And more broadly, Walker insisted that FISA really does provide the sole, binding process by which the executive branch may conduct foreign intelligence wiretaps.

"Congress appears clearly to have intended to—and did—establish the exclusive means for foreign intelligence surveillance activities to be conducted," wrote Judge Walker in his opinion. "Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities."

There remains one last catch-22, however. FISA trumps the state secrets privilege only in cases involving "aggrieved persons." But plaintiffs must prove that they are "aggrieved" without making use of the secret document they had obtained before the law will permit documents, and others concerning surveillance of Al-Haramain, to be used in court. Exactly what standard of proof they must meet, however, is unclear because there is so little case law governing the question.

Jon Eisenberg, the attorney for the Al-Haramain Islamic Foundation, nevertheless notes that the judge "gives us some hints," suggesting that the sort of independent evidence adduced in the high-profile surveillance lawsuits targeting telecom firms might be sufficient. Eisenberg is optimistic that he can meet this hurdle. "I think there's compelling, unclassified circumstantial evidence," he says, "that would lead any reasonable person to believe our clients were surveilled."

Perhaps just as important is the judge's implicit rejection of the idea that the executive branch has the power—perhaps, as some have argued, pursuant to the president's Article II powers as commander in chief—to conduct surveillance outside the bounds of FISA. Though the ruling does not directly consider this question, it does hint at how Walker, who was appointed by George Bush Sr., would be likely to rule on the merits. If FISA provides a real and binding limit on the surveillance power of the executive, after all, then it is hard to avoid the conclusion that the NSA's secret program of warrantless surveillance was indeed illegal. "If we get standing," predicted Eisenberg, "we win."

The ruling does not directly affect the more well-publicized class-action suits against telecoms complicit in the NSA's surveillance, which are currently in limbo before the Ninth Circuit Court of Appeals—presumably pending next week's vote in the Senate on a bill to grant the telecoms retroactive immunity for their actions. But Kurt Opsahl, an attorney with the Electronic Frontier Foundation who is litigating those cases, notes that the ruling "undercuts one of the talking points" that Democratic leaders have advanced as a rationale for endorsing the pending bill.

"A reason given for agreeing to the current form of the FISA bill," says Opsahl, "was that the exclusive means language"—a provision reasserting that foreign intelligence surveillance must occur pursuant to FISA—"was part of the trade-off the Democrats had made." This ruling makes clear, as critics of the FISA amendments compromise have argued all along, that FISA is already the "exclusive means" of lawful surveillance, not a new concession won by Democrats in Congress. And according to Opsahl, "this shows that the litigation can proceed under longstanding secrecy procedures that have worked for many years."

 

[The Heretic]

See:

"Cointelpro"

And

http://en.wikipedia.org/wiki/ECHELON

"Total Information Awareness"

http://www.ufos-aliens.co.uk/pinegap.jpg

Nothing new, really.

There is a difference between what Echelon is/was (it has been around for a long time), which is basically a relatively limited program and the wholesale illegal tapping of the AT&T telephone/internet backbone - without warrants.

http://arstechnica.com/news.ars/pos...o-reveal-nsa-wiretap-details-to-congress.html

Telecom companies refuse to reveal NSA wiretap details to Congress
By Ryan Paul | Published: October 17, 2007 - 08:13AM CT

Citing legal concerns, telecommunications companies AT&T, Verizon, and Qwest have refused to reveal to Congress the nature of their involvement in the NSA warrantless wiretapping program. The House Committee on Energy and Commerce announced yesterday that it will not compel the companies to answer and will instead request additional details about the program from the Bush Administration.

Appeals court judges scrutinize Bush administration's wiretap arguments
House Committee begins NSA wiretap investigation, taps EFF and ACLU for aid
New developments in NSA wiretap litigation
Setback for wiretapping plaintiffs bodes well for EFF class action
The Committee began its investigation earlier this month by requesting information about the NSA surveillance program from the telecommunications companies. All three telecoms submitted reports, but declined to provide specific details regarding the eavesdropping scheme. The companies argue that they are not legally permitted to disclose details of the program to Congress. The Department of Justice has informed the companies that they cannot confirm or deny participating in the program despite public knowledge of the program's existence and a growing body of evidence demonstrating the involvement of at least one of the companies.

"Unfortunately, under current circumstances, we are unable to respond with specificity to your inquiries," wrote AT&T in a statement to the House Committee. "That is because, on many issues that appear to be of central concern to you, responsive information, if any, is within the control of the executive branch... Moreover, the United States, through sworn declaration from the Director of National Intelligence (DNI), has formally invoked the state secrets privilege to prevent AT&T from either confirming or denying facts about alleged intelligence operations and activities that are central to your inquiries."

Energy and Commerce Committee Chairman Rep. John Dingell (D-MI) has decided that trying to get information about the program from the telecoms is indeed an exercise in futility, and will turn his attention towards the Bush administration. "After reviewing the thoughtful responses of the phone companies to our inquiries about the Administration's NSA program, I am now convinced that the Administration—as the sponsor of this program and the party preventing the companies from defending themselves—is the entity best able to resolve the many outstanding issues," said Dingell. "I look forward to meeting with representatives of the Administration in short order, and I am hopeful that they will be forthcoming with the information Congress needs to properly evaluate this program."

Advocacy groups like the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union believe that the telecoms have violated state and federal laws by participating in the surveillance program. Litigation against the companies is currently winding its way through the court system. The telecom companies are playing the victim card in this situation, saying that they shouldn't be punished for complying with government requests.

Critics of the NSA's warrantless surveillance activities argue that the federal government is using the classified status of the program to elevate its coconspirators above the rule of law and shield them from scrutiny. Critics will likely view the Committee's decision as capitulation to industry lobbyists, who have been pressuring Congress to grant the companies immunity for their involvement in the eavesdropping program.

Although Congress has not yet determined whether to grant the companies immunity, it is apparent that information from the companies themselves will not be available to Congress to aid its deliberations. The Administration's use of the states secret privilege is clearly impeding Congressional inquiry and hampering oversight.

The Bush administration is asking Congress to make permanent the expanded surveillance powers granted by the Protect America Act. House Democrats have proposed the RESTORE Act, which aims to perpetuate certain warrantless surveillance practices while also imposing clear and explicit limitations on the scope of the program and providing a more rigid process for conducting warrantless surveillance. Bush has threatened to veto any surveillance legislation that does not grant retroactive immunity to the telecommunications companies for violations of the law perpetrated while assisting in the NSA's program.

 

[The Heretic]

http://arstechnica.com/news.ars/pos...ts-carte-blanche-to-peep-all-net-traffic.html

US intel chief wants carte blanche to peep all 'Net traffic
By Julian Sanchez | Published: January 17, 2008 - 06:40AM CT

In a long profile published by The New Yorker this week (not yet online, but there's an audio interview with the profile's author at The New Yorker's site), Director of National Intelligence Mike McConnell discusses a plan in the works to dramatically expand online surveillance. As The Wall Street Journal sums it up, "in order to accomplish his plan, the government must have the ability to read all the information crossing the Internet in the United States in order to protect it from abuse."

The unfinished CyberSecurity initiative is in large part aimed at blocking attempts to attack the US' information infrastructure. "If the 9/11 perpetrators had focused on a single U.S. bank through cyber-attack and it had been successful," McConnell reportedly told the president and cabinet officers last spring, "it would have an order of magnitude greater impact on the US economy."

While short on specifics, the New Yorker piece recognizes that any plan requiring the kind of authority McConnell envisions is apt to be a hard sell: "Americans will have to trust the government not to abuse the authority it must have in order to protect our networks, and yet, historically the government has not proved worthy of that trust." McConnell acknowledges that his initiative is bound to spark debate that will make recent wrangling over reforms to the Foreign Intelligence Surveillance Act seem like "a walk in the park compared to this."

How broad are the powers needed to keep our servers safe? According to the article, in order for cyberspace to be policed, Internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer, or Web search. "Google has records that could help in a cyber-investigation," he said. Giorgio warned me, "We have a saying in this business: 'Privacy and security are a zero-sum game.'"

Sayings like that, says security guru Bruce Schneier, "are why the police aren't in charge; security and privacy are complimentary. Privacy is part of our security against government abuse. If they were really zero-sum, we would have seen mass immigration into East Germany."

It is also worth wondering why such extensive authority is supposed to be necessary. Google may indeed "have records that could help in a cyber-investigation." So might a suspect's employer or school; we typically manage to acquire those records by means of warrants. It is not especially comforting in this context that the article in several pieces—including in the dubious anecdote that opens the piece—repeats without question the notion that a decision by the secretive FISA court last year imposed a requirement that a warrant be obtained before intelligence offers can look at any communications flowing through US switches, including those that both originate and terminate abroad.

That would have constituted a massive change in the longstanding rules governing wiretaps, and it is nearly impossible to imagine how any court could reconcile such a demand with the wording of the FISA statute. But since the court declined to release the ruling in question, which concerned a modified, court-supervised version of the controversial warrantless wiretap program created after the terror attacks of 2001, it is impossible to know precisely what barriers to surveillance it raises. It is clear, however, that the sweeping Protect America Act passed as a response to the ruling went far beyond "fixing" the putative problem, significantly expanding government's capacity to surveil with minimal judicial oversight.

The claim that "cyber-security" demands handing over such expansive authority looks like similar overreach. On the prevention side, it is not clear why the NSA is better equipped to handle attacks than the large financial institutions terrorists would target, which surely have ample incentive and adequate resources to secure their networks. And law enforcement has thus far been managing to conduct investigation into and prosecution of computer crime under existing rules.

Even members of Congress don't appear to be getting a much more adequate explanation of which powers will be necessary for which reasons. The Journal cites Congressional aides reporting that legislators had learned more from media reports than from secret briefings on the initiative. Perhaps the hope is that lawmakers will cede whatever authority is requested, so long as it involves that confusing "series of tubes."

 

[TurdFergeson]

There is a difference between what Echelon is/was (it has been around for a long time), which is basically a relatively limited program and the wholesale illegal tapping of the AT&T telephone/internet backbone - without warrants.

The problem is in the methodology.

It's impossible to have warrants when using an algorithm to search for "code words" in millions of conversations.

With the nature of digital switching relays, it further compilcates the ethics.

Are your words actually your property once they become digitized and relayed throughout digital equipment around the globe?

It's not like sending a paper letter.

Check this out:

http://arstechnica.com/news.ars/post/20051220-5808.html

It is entirely possible that the NSA technology at issue here is some kind of high-volume, automated voice recognition and pattern matching system.

 

[The Heretic]

http://arstechnica.com/news.ars/pos...-of-the-nsas-domestic-spying-program.html?rel

An overview of the NSA's domestic spying program
By Jon Stokes | Published: March 16, 2008 - 07:50PM CT

In Wednesday's Wall Street Journal, Siobhan Gorman pulled together the disparate threads of reporting on what's known of the NSA's secret domestic spy program, and combined them with some of her own reporting to confirm, once again, that the NSA's program is another incarnation of the Pentagon's erstwhile Total Information Awareness program. Gorman also describes how Carnivore, the SWIFT database snooping program, and basically every other "Big Brother" database and data snooping program that the executive branch has developed over the past two administrations* feed information into the NSA's TIA-like system, which then looks for suspicious patterns in the data.

Gorman's article provides a great overview of how these programs fit together in the architecture of the modern, post-9/11 surveillance state, and it's required reading because it comes at a critical time in our national debate about privacy and the limits of executive power. However, if you've been following this topic closely then you know that most of the information in the article has been public since 2006.

In this post, I'm going to walk back through some of the previous reporting on the topic, both my own work and that of others, and offer corrections and adjustments where necessary based on the WSJ piece. My hope is that readers and reporters who are so inclined can dig through the details and links and follow up on any leads that others may have missed.

(*Note: Infamous codenames like "Carnivore" and ECHELON first cropped up in Bill Clinton's second term, and I covered them when Ars launched in mid-1998. In terms of the presidential orders he signed and the programs that were inaugurated on his watch, Clinton laid some of the groundwork for the Bush administration's pre- and post-9/11 surveillance-related lawbreaking. Or, perhaps a more accurate metaphor is that he blazed a trail that the Bush gang then paved over and turned into a six-lane highway.)

A look back at the role of the TIA in the NSA's surveillance activities
Back in December of 2005, when the NSA warrantless wiretapping story story broke in the New York Times, I took a close look at what was then known about the program and suggested that the NSA's program probably shared some technological DNA with the short-lived (2002-2003) Total Information Awareness program. In the years since TIA first appeared under the Pentagon's roof, the program has moved from agency to agency in the Executive branch, as Congress catches wind of each new incarnation of it and shuts it down only to see it reemerge again with a different acronym on a different department's budget.

In April of 2006, the MIT Technology Review published a piece by Mark Williams that moved the story forward by fleshing out the relationship between TIA and the NSA's domestic spying program. Williams reported that elements of TIA had indeed been moved from the Department of Defense to the NSA, and he suggested that this technology was almost certainly in use as part of the domestic spying program that the New York Times had uncovered.

One month later, a very important article on the role of "transactional information"—a term that originally referred to the phone company's call logs but has since been stretched to fit a widening array of communication types—appeared in USA Today. The article made clear that this "communication metadata" was the real target of the NSA's vast data collection efforts. Also that May, Wired's Ryan Singel released critical technical documents that had been sealed under court order, showing some of the nuts and bolts of how the NSA snoops Internet traffic on AT&T's backbone.

In terms of my own understanding of the NSA's program, the USA Today article made clear that my initial assessment of the NYT's piece had missed the mark on an important and central point: the new surveillance technology at the heart of the TSA's warrantless wiretapping program was not, as I had conjectured, an automated voice recognition system that sampled calls looking for "hits," and then escalated of-interest calls to higher levels of scrutiny and, ultimately, to a human monitor. This call monitoring is almost surely going on somewhere in the intelligence pipeline, but the core of the NSA's program really is the aggregation and analysis of communications metadata.

Based on the USA Today piece and on a number of other sources, I suggested in "TIA (aka Topsail) unveiled: the real scope of the NSA's domestic spying program" that "the original revelations about the NSA's SIGINT vacuum were just the tip of the iceberg," and that "it appears there's probably more that we've yet to see. Much more."

I then put the pieces together and asked the following rhetorical question: "Now, does anyone seriously think that the NSA is not collecting transactional data (at a minimum) for Web, email, FTP and other IP-based communications, and/or that they're not tying all of this data to individual users?"

Gorman's WSJ piece provides sourced confirmation that the NSA is doing exactly what I and others suspected they were doing, i.e., they're collecting e-mail headers, Web surfing histories, cell phone call logs, and every other trace of the digital and analog connections that we make to the world, and they're synthesizing this into complete informational portraits of individuals.

Network effects
In my "TIA unveiled" piece, I appear to have overstated the scope of the NSA's profiling by suggesting that the agency is building such informational pictures of everyone in the US. But Gorman's article provides an important correction by suggesting that the TIA driftnet works in a much more focused fashion.

According to Gorman, counter-terrorism officials must seed the system with leads—like the name or phone number of an individual with suspected terrorist ties. The system then begins monitoring the aforementioned types of transactional data in order to build an informational profile. The system also works outward through the individual's social network by turning its information vacuum on everyone that that person contacts, and then on their contacts in turn, in an ever-expanding web of surveillance. This way, the system can build of profiles of individuals and groups, and monitor their interactions for suspicious activity.

The fact that the driftnet is seeded by first giving it a single target—a target that is ostensibly drawn from some type of human-generated intelligence—makes it less of a lost cause than a massive, nationwide driftnet would be, but only marginally less so, depending on how far out in the suspect's social network the surveillance extends. As I explained in this article on why the NSA's program is a bad idea from a national security perspective, the main problem with these driftnet or "dragnet" systems is that the rate of false positives is typically so high that they produce an overwhelming flood of bogus leads that tie up law enforcement resources.

Even if the more targeted driftnet approach described by Gorman does result in fewer false positives, the constitutional, privacy, and oversight questions still remain. Let's hope that we, the people, eventually get a shot at answering those questions for ourselves.

 

[kbate]

I'll post for AJ, Ish, busybody Vetteman, Slowlane and Rightfield:

People will Die because of this ruling! We need to spy on everyone now in order to stop the *insert namless threat to security of world*!

This affects nothing due to *insert current crisis being abused by executive to grab dictatorial powers*.

FISA does not apply because *insert Bush Administration argument*.

So there! If you don't agree you are a *insert liberal*.

 

[TurdFergeson]

I'll post for AJ, Ish, busybody Vetteman, Slowlane and Rightfield:

People will Die because of this ruling! We need to spy on everyone now in order to stop the *insert namless threat to security of world*!

This affects nothing due to *insert current crisis being abused by executive to grab dictatorial powers*.

FISA does not apply because *insert Bush Administration argument*.

So there! If you don't agree you are a *insert liberal*.

BUT, is it actually spying to use a computer to run an algorithm to randomly serach for certain phrases or "key words", in millions of anonymous 1s and zeros?

I would say the potential exists for abuse, but as long as the key words are strictly kept in the anti-terror realm, is it wrong?

 

[Slowlane]

Oops...

 

[Slowlane]

I'll post for AJ, Ish, busybody Vetteman, Slowlane and Rightfield:

People will Die because of this ruling! We need to spy on everyone now in order to stop the *insert namless threat to security of world*!

This affects nothing due to *insert current crisis being abused by executive to grab dictatorial powers*.

FISA does not apply because *insert Bush Administration argument*.

So there! If you don't agree you are a *insert liberal*.

Thank you.

 

[killallhippies]

Thank you.

seriously?

 

[Le Jacquelope]

The problem is in the methodology.

It's impossible to have warrants when using an algorithm to search for "code words" in millions of conversations.

With the nature of digital switching relays, it further compilcates the ethics.

Are your words actually your property once they become digitized and relayed throughout digital equipment around the globe?

It's not like sending a paper letter.

Check this out:

http://arstechnica.com/news.ars/post/20051220-5808.html

It is entirely possible that the NSA technology at issue here is some kind of high-volume, automated voice recognition and pattern matching system.

Copyright law. For starters.

 

[TurdFergeson]

Copyright law. For starters.

What about it?

Doesn't apply unless indicated as such when in the public domain.

 

[The Heretic]

BUT, is it actually spying to use a computer to run an algorithm to randomly serach for certain phrases or "key words", in millions of anonymous 1s and zeros?

I would say the potential exists for abuse, but as long as the key words are strictly kept in the anti-terror realm, is it wrong?

The government abuse it's powers when spying on people?

Never happen!

We all know that the government would never do that!

I mean, we all know that J Edgar had very good reasons for spying on King and the Kennedys (and a whole lot of other people). Right?

FBI Tried to Cover Patriot Act Abuses With Flawed, Retroactive Subpoenas, Audit Finds
By Ryan Singel March 13, 2008 | 2:04:30 PMCategories: Spooks Gone Wild, Sunshine And Secrecy, Surveillance

FBI headquarters officials sought to cover their informal and possibly illegal acquisition of phone records on thousands of Americans from 2003 to 2005 by issuing 11 improper, retroactive "blanket" administrative subpoenas in 2006 to three phone companies that are under contract to the FBI, according to an audit released Thursday.

Top officials at the FBI's counter-terrorism division signed the blanket subpoenas "retroactively to justify the FBI's acquisition of data through the exigent letters or or other informal requests," the Justice Department's Inspector General Glenn Fine found.

The revelations come in a follow-up report to Fine's 2007 finding that the FBI abused a key Patriot Act power, known as a National Security Letter. That first reports showed that FBI agents were routinely sloppy in using the self-issued subpoenas and issued hundreds that claimed fake emergencies.

With the flawed follow-up letters, the Counterterrorism division attempted to provide retroactive legal justification for telephone data the division had gotten on 3,860 phone numbers, gotten either through verbal requests to the companies or false emergency requests.
The letters are related to still-secret contracts the FBI's Communication Analysis Unit has with AT&T, Verizon and MCI. The contracts pay the companies to store subscribers' phone records for longer periods of time and to provide faster service for FBI subpoenas. Those contracts began in May 2003, but the FBI refuses to release them.

At least one of the letters was signed by an assistant director and none were cleared with the FBI's general counsel.

FBI agents issue tens of thousands of National Security Letters annually to get phone records, portions of credit histories, and track down IP addresses without getting a judge's approval in cases involving suspected terrorism, computer crimes or espionage.

Additionally, some of those retroactive NSLs sought records that the FBI was not authorized to obtain, and failed to explain -- as required by policy -- what investigation the records pertained to. Fine found that all were "issued in violation of internal FBI policy."

In his 2007 report on the FBI's use of that Patriot Act power during 2003 to 2005, Fine disclosed that officials at the counter-terrorism division had issued more than 700 emergency requests for data to telephone companies -- so-called exigent letters -- most with false promises that a court order was in the works and would be delivered after the fact. Those letters prompted a further investigation of those letters, including a reported criminal probe of counter-terrorism officials, and Thursday's report says an in depth report on that office is forthcoming.

The report shows the need for Congress to narrow the FBI's powers and strengthen privacy laws, according to Mike German, a longtime FBI agent who now works for the ACLU, who says it's clear the FBI has been breaking the law.

"The FBI has flagrantly put aside the rule of law and its internal guidelines time and again," German said "This is the kind of abuse that is inevitable when we broaden the government's surveillance power and do not attempt to modernize privacy standards. Both the House and Senate have bills waiting to be marked up that will greatly limit this authority. Congress needs to act on this now.”

The 187-page report (.pdf) focused on NSL usage in 2006 and how the FBI attempted to correct the abuses brought to light by last year's report.

Fine said the FBI had made "significant progress in implementing our recommendations," but tempered that statement by concluding "it is too soon to definitively state whether the news systems and cohntrols developed by the FBI and the Department will eleiminate fully the problems with the use of NSLs."

The Justice Department issued a statement Thursday saying it was pleased with Fine's assessment of their efforts after his 2007 report and downplayed the report's revelations of abuses in 2006, saying it is "no surprise that this year’s report found problems similar to those identified in the first OIG report, which covered the period 2003 through 2005."
The Inspector General took issue with the FBI's inability to track where data is shared or if the data is used in criminal prosecutions by state and local law enforcement. The report also criticized the FBI's insistence that all data collected by the letters -- even phone records that cleared a suspect -- should be stored for decades in the FBI's massive Investigative Data Warehouse. That storehouse allows investigators to search for and comb through data from other investigations.

The FBI issued 49,425 NSLs in 2006, up slightly from 2005's 47,221 requests. Since NSLs can name more than one person, phone number or email address, it is not known how many persons were investigated through these requests. In a footnote, Fine reveals that in a 2004 investigation the FBI issued 9 NSLs that sought subscriber information on 11,100 phone numbers.

 

[The Heretic]

BUT, is it actually spying to use a computer to run an algorithm to randomly serach for certain phrases or "key words", in millions of anonymous 1s and zeros?

I would say the potential exists for abuse, but as long as the key words are strictly kept in the anti-terror realm, is it wrong?

http://www.nytimes.com/2007/03/10/washington/10fbi.html?_r=1&oref=slogin

F.B.I. Head Admits Mistakes in Use of Security Act

By DAVID STOUT
WASHINGTON, March 9 — Bipartisan outrage erupted on Friday on Capitol Hill as Robert S. Mueller III, the F.B.I. director, conceded that the bureau had improperly used the USA Patriot Act to obtain information about people and businesses.

Mr. Mueller embraced responsibility for the lapses, detailed in a report by the inspector general of the Justice Department, and promised to do everything he could to avoid repeating them. But his apologies failed to defuse the anger of lawmakers in both parties.

“How could this happen?” Mr. Mueller asked rhetorically in a briefing at the headquarters of the Federal Bureau of Investigation. “Who is to be held accountable? And the answer to that is I am to be held accountable.”

The report found many instances when national security letters, which allow the bureau to obtain records from telephone companies, Internet service providers, banks, credit companies and other businesses without a judge’s approval, were improperly, and sometimes illegally, used.

Moreover, record keeping was so slipshod, the report found, that the actual number of national security letters exercised was often understated when the bureau reported on them to Congress, as required.

The repercussions were felt far beyond Mr. Mueller’s office. Democratic lawmakers, newly in control of Congress, promised hearings on the problems. Several Republicans expressed anger and dismay, as well.

“It is time to place meaningful checks on the Bush administration’s ability to misuse the Patriot Act by overusing national security letters,” said Senator Harry Reid of Nevada, the majority leader.

Senator Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, said, “National security letters are a powerful tool, and when they are misused, they can do great harm to innocent people.” Mr. Leahy said his panel would hold extensive hearings on the inspector general’s findings.

In the House, Representative Silvestre Reyes, the Texas Democrat who heads the Intelligence Committee, said that the inspector general had painted “a highly troubling picture of mismanagement” and that it was up to Congress to “conduct vigorous oversight of this situation.”

Among the Republicans voicing anger was Senator Charles E. Grassley of Iowa, a member of the Senate Judiciary Committee. “When it comes to national security, sloppiness should be reserved for the hog lot, not the F.B.I.,” said Mr. Grassley.

Mr. Mueller attributed the inaccuracies to “deficiencies in the database” and the failure to retain signed copies of national security letters in all cases.

“We have already taken steps to correct these deficiencies,” he said.

Mr. Mueller emphasized that the report determined that the lapses were a result of errors rather than criminal or malicious intent, that apparently no person or business was harmed and that the inspector general, Glenn A. Fine, agreed that the national security letters were a vital tool in the post-Sept. 11 world.

But he conceded that the abuses, however unintentional, were contrary to American traditions of law and respect for privacy. And even if the actual number of mistakes is relatively small, “nonetheless it is a serious problem,” he said, promising to do whatever he could to reassure skeptics on Capitol Hill.

Attorney General Alberto R. Gonzales noted that the information discussed throughout Mr. Fine’s document was the kind that the bureau “would have been entitled to if we had followed the rules.”

But Mr. Gonzales, who was by coincidence speaking to reporters after a privacy conference here, said he viewed Mr. Fine’s conclusions as serious.

Mr. Mueller left open the possibility that some F.B.I. employees might be disciplined for their errors involving national security letters. In response to a question, he said there had been “no discussion” on whether he should step down.

The inspector general traced the increase in the use of the letters after Sept. 11, 2001. There were 8,500 in 2000, the year before the Patriot Act broadened surveillance powers. There were 39,000 in 2003, 56,000 in 2004 and 47,000 in 2005, the years covered in Mr. Fine’s review.

But his office found that the number of letters in case files was 20 percent higher than those recorded in the central legal office at the bureau. Those discrepancies, plus slowness in gathering and transmitting data, meant that the numbers of national security requests reported to Congress were “significantly understated,” Mr. Fine wrote.

Although the investigation uncovered no examples of lives turned upside down or businesses disrupted, the privacy problems went beyond the theoretical in a few instances. One letter demanding telephone toll-billing records yielded voice messages because a recipient was overly cooperative.

Another letter demanding e-mail transaction records was answered by e-mail contents and images.

In other incidents, though rare, national security letters seeking data on individuals were answered by information on the wrong people “due to either to F.B.I. typographical errors or errors by the recipients” of the letters, Mr. Fine wrote.

Moreover, he added, mistakes of that nature were not always reported promptly to the legal office, as regulations require.

The inspector general also criticized the bureau for using what are called exigent letters in improper circumstances. An exigent letter is meant to be used to obtain information in an extreme emergency like a kidnapping when the bureau has already sought subpoenas for the information. In too many instances, such letters were used in nonemergencies when the bureau had not requested subpoenas, Mr. Fine wrote.

Some of the sternest critics of the bureau were not mollified by Mr. Mueller’s apologies and promises.

“This confirms some of our worst suspicions,” said Anthony D. Romero, executive director of the American Civil Liberties Union.

Mr. Romero scoffed at the notion that Mr. Gonzales could help turn around the problem.

“This attorney general cannot be part of the solution,” Mr. Romero said. “He is part of the problem.”

Mr. Romero said the Patriot Act, which Congress re-enacted a year ago after extensive debate, should be given another look, so the provisions on national security letters could be improved.

Senator Arlen Specter of Pennsylvania, the ranking Republican on the Senate Judiciary Committee (and, like Mr. Leahy, a former prosecutor), told reporters that the bureau had apparently “badly misused national security letters.”

“This is, regrettably, part of an ongoing process where the federal authorities are not really sensitive to privacy and go far beyond what we have authorized,” Mr. Specter said.

Senator Russell D. Feingold, a Wisconsin Democrat on the judiciary panel who voted against the original Patriot Act, said the inspector general’s inquiry “proves that ‘trust us’ doesn’t cut it” when it comes to the F.B.I.

 

[Slowlane]

seriously?

Not really, she left out most of the best parts.

 

[The Heretic]

http://www.washingtonpost.com/wp-dyn/content/article/2008/03/13/AR2008031302277.html

FBI Found to Misuse Security Letters
2003-06 Audit Cites Probes of Citizens


Justice Department official Glenn A. Fine testifies about his probe of national security letters. (By Dennis Cook -- Associated Press)

By Dan Eggen
Washington Post Staff Writer
Friday, March 14, 2008; Page A03
The FBI has increasingly used administrative orders to obtain the personal records of U.S. citizens rather than foreigners implicated in terrorism or counterintelligence investigations, and at least once it relied on such orders to obtain records that a special intelligence-gathering court had deemed protected by the First Amendment, according to two government audits released yesterday.

The episode was outlined in a Justice Department report that concluded the FBI had abused its intelligence-gathering privileges by issuing inadequately documented "national security letters" from 2003 to 2006, after which changes were put in place that the report called sound.

A report a year ago by the Justice Department's inspector general disclosed that abuses involving national security letters had occurred from 2003 through 2005 and helped provoke the changes. But the report makes it clear that the abuses persisted in 2006 and disclosed that 60 percent of the nearly 50,000 security letters issued that year by the FBI targeted Americans.

Because U.S. citizens enjoy constitutional protections against unreasonable searches and seizures, judicial warrants are ordinarily required for government surveillance. But national security letters are approved only by FBI officials and are not subject to judicial approval; they routinely demand certain types of personal data, such as telephone, e-mail and financial records, while barring the recipient from disclosing that the information was requested or supplied.

According to the findings by Justice Department Inspector General Glenn A. Fine, the FBI tried to work around the Foreign Intelligence Surveillance Court, which oversees clandestine spying in the United States, after it twice rejected an FBI request in 2006 to obtain certain records. The court had concluded "the 'facts' were too thin" and the "request implicated the target's First Amendment rights," the report said.

But the FBI went ahead and got the records anyway by using a national security letter. The FBI's general counsel, Valerie E. Caproni, told investigators it was appropriate to issue the letters in such cases because she disagreed with the court's conclusions.

In total, Fine said, the FBI issued almost 200,000 national security letters from 2003 through 2006, and they were used in a third of all FBI national security and computer probes during that time. Fine said his investigators have identified hundreds of possible violations of laws or internal guidelines in the use of the letters, including cases in which FBI agents made improper requests, collected more data than they were allowed to, or did not have proper authorization to proceed with the case.

Fine also pointed to the FBI's "troubling" use of the letters to obtain vast quantities of telephone numbers or other records with a single request. Investigators identified 11 such cases, involving information related to about 4,000 phone numbers, that did not comply with USA Patriot Act requirements or that violated FBI guidelines.

The latest findings reignited long-standing criticism from Democrats and civil liberties groups, who said the FBI's repeated misuse of its information-gathering powers underscores the need for greater oversight by Congress and the courts.

"The fact that these are being used against U.S. citizens, and being used so aggressively, should call into question the claim that these powers are about terrorists and not just about collecting information on all kinds of people," said Jameel Jaffer, national security director at the American Civil Liberties Union. "They're basically using national security letters to evade legal requirements that would be enforced if there were judicial oversight."

Justice spokesman Dean Boyd said in a statement that Fine's report "should come as no surprise" because the survey ended in 2006, before the FBI introduced procedural changes to better control and keep track of requests for the security letters.

FBI Assistant Director John Miller said a new automated system will keep better tabs on the letters, and they are now reviewed by a lawyer before they are sent to a telephone company, Internet service provider or other target. "We are committed to using them in ways that maximize their national security value while providing the highest level of privacy and protection of the civil liberties of those we are sworn to protect," Miller said.

Fine said that FBI employees "self-reported" 84 possible violations of laws or guidelines in the use of the letters, in 2006, which "was significantly higher than the number of reported violations in prior years." But he noted that his office already had begun its initial investigation into the letters by then, which might have contributed to the increase.

About a quarter of the reported incidents were because of mistakes made by telephone or Internet providers, including some in which they provided either the wrong information or disclosed more than the FBI requested. But many of those cases should have been caught by the FBI earlier, Fine said.

 

[The Heretic]

http://www.cbsnews.com/stories/2007/03/20/terror/printable2588346.shtml

Lawmakers Warn FBI Over Spy Powers
WASHINGTON, March 20, 2007
(AP) Republicans and Democrats sternly warned the FBI on Tuesday that it could lose its broad power to collect telephone, e-mail and financial records to hunt terrorists after revelations of widespread abuses of the authority detailed in a recent internal investigation.

Their threats came as the Justice Department's chief watchdog, Glenn A. Fine, told the House Judiciary Committee that the FBI engaged in widespread and serious misuse of its authority in illegally collecting the information from Americans and foreigners through so-called national security letters.

If the FBI doesn't move swiftly to correct the mistakes and problems revealed last week in Fine's 130-page report, "you probably won't have NSL authority," said Rep. Dan Lungren, R-Calif., a supporter of the power, referring to the data requests by their initials.

"From the attorney general on down, you should be ashamed of yourself," said Rep. Darrell Issa, R-Calif. "We stretched to try to give you the tools necessary to make America safe, and it is very, very clear that you've abused that trust."

If Congress revokes some of the expansive law enforcement powers it granted in the wake of the Sept. 11 attacks, Issa said, "America may be less safe, but the Constitution will be more secure, and it will be because of your failure to deal with this in a serious fashion."

The FBI's failure to establish sufficient controls or oversight for collecting the information constituted "serious and unacceptable" failures, Fine told the committee.

Democrats called Fine's findings an example of how the Justice Department has used broad counterterrorism authorities to trample on privacy rights.

"This was a serious breach of trust," said Rep. John Conyers, D-Mich., the Judiciary chairman. "The department had converted this tool into a handy shortcut to illegally gather vast amounts of private information while at the same time significantly underreporting its activities to Congress."

Rep. Jerrold Nadler, D-N.Y., said Congress should revise the USA Patriot Act, which substantially loosened controls over the letters.

"We do not trust government always to be run by angels, especially not this administration," Nadler said. "It is not enough to mandate that the FBI fix internal management problems and recordkeeping, because the statute itself authorizes the unchecked collection of information on innocent Americans."

Some Republicans, however, said the FBI's expanded spying powers were vital to tracking terrorists.

"The problem is enforcement of the law, not the law itself," said Rep. Lamar Smith of Texas, the panel's senior GOP member. "We need to be vigilant to make sure these problems are fixed."

Fine said he did not believe the problems were intentional, although he acknowledged he could not rule that out.

"We believe the misuses and the problems we found generally were the product of mistakes, carelessness, confusion, sloppiness lack of training, lack of adequate guidance and lack of adequate oversight," Fine said.

"It really was unacceptable and inexcusable what happened here," he added under questioning.

Valerie Caproni, the FBI's general counsel, said she took responsibility for the abuses and believed they could be fixed in a matter of months.

"We're going to have to work to get the trust of this committee back, and we know that's what we have to do, and we're going to do it," she said.

In a review of headquarters files and a sampling of just four of the FBI's 56 field offices, Fine found 48 violations of law or presidential directives during between 2003 and 2005, including failure to get proper authorization, making improper requests and unauthorized collection of telephone or Internet e-mail records. He estimated that "a significant number of ... violations throughout the FBI have not been identified or reported."

The bureau has launched an audit of all 56 field offices to determine the full extent of the problem. The Senate Judiciary Committee is to hear Wednesday from Fine on his findings, and will likely question FBI Director Robert Mueller on it at a broader hearing March 27.

In 1986, Congress first authorized FBI agents to obtain electronic records without approval from a judge using national security letters. The letters can be used to acquire e-mails, telephone, travel records and financial information, like credit and bank transactions.

In 2001, the Patriot Act eliminated any requirement that the records belong to someone under suspicion. Now an innocent person's records can be obtained if FBI field agents consider them merely relevant to an ongoing terrorism or spying investigation.

Fine's review, authorized by Congress over Bush administration objections, concluded the number of national security letters requested by the FBI skyrocketed after the Patriot Act became law in 2001.

Fine found more than 700 cases in which FBI agents obtained telephone records through "exigent letters" which asserted that grand jury subpoenas had been requested for the data, when in fact such subpoenas never been sought.

 

[TurdFergeson]

The problem is the technology.

When everything in communications went digital, it changes the whole aspect.

For instance, is it "spying" for a Telco Admin. to check the status of the system?

He is indirectly looking at data streams of actual conversations for the purpose of troubleshooting.

The potential for abuse is everywhere.

 

[The Heretic]

BUT, is it actually spying to use a computer to run an algorithm to randomly serach for certain phrases or "key words", in millions of anonymous 1s and zeros?

If you are innocent, you have nothing to fear from the government listening to all of your communications - huh?

I would say the potential exists for abuse, but as long as the key words are strictly kept in the anti-terror realm, is it wrong?

Thank you for bringing up this issue.

http://arstechnica.com/news.ars/post/20070312-doj-report-finds-patriot-act-ripe-for-abuse.html

DOJ report finds Patriot Act ripe for abuse
By Timothy B. Lee | Published: March 12, 2007 - 10:07AM CT

A Department of Justice report made public Friday highlights numerous problems with FBI's use of national security letters (NSL), a controversial legal device whose use was greatly expanded by the 2001 Patriot Act. NSLs allow the FBI to demand customer records from credit bureaus, banks, phone companies, ISPs, and other organizations without judicial review.

Continued NSL abuses show FBI biased, cannot police itself
FBI accused of using illegal letters for illegal information requests
Telcos seek wiretapping immunity as legal pressure mounts
Bloated terrorist list may contribute to security problems
The report by the Office of the Inspector General (OIG), led by Glenn Fine, found that due to inadequate tracking and reporting systems, the FBI had significantly understated its use of NSLs in previous reports to Congress. After auditing a small fraction of the NSLs issued, Fine's staff found 22 irregularities, some of them quite serious. That suggests that hundreds of NSLs have been issued in violation of the law. Perhaps worst of all, the report finds that the FBI sent over 700 "exigent letters" to three unidentified telephone companies requesting them to expedite the process by voluntarily handing over customer data without waiting for a formal subpoena or NSL.

Superficially, the response to the report was unanimous: everyone from Attorney General Alberto Gonzales to Democratic Senator Patrick Leahy agreed that the report revealed serious problems at the FBI that needed to be addressed. But there were a range of views about the broader implications of the report, with the White House stressing the importance of NSLs for its anti-terrorism efforts while civil-liberties groups called for sharply curtailing the use of NSLs. Leahy promised to hold extensive hearings on the subject, and his Republican counterpart, Sen. Arlen Specter, said that the FBI had apparently "badly misused national security letters."

National security letters explode
The FBI has had the power to issue national security letters since 1986, but their use was originally limited to collecting information about individuals who were believed to be agents of a foreign power. That changed with the 2001 Patriot Act, which required only that NSLs be "relevant to an authorized investigation" of international terrorism or foreign intelligence and that it not burden activities protected by the First Amendment.

National security letters require no judicial oversight. High-ranking FBI officials have the authority to sign off on NSLs drafted by their subordinates, entirely bypassing the judicial branch. Moreover, the original Patriot Act provision prohibited recipients from ever disclosing their receipt of an NSL to anyone (under the 2005 reauthorization, the gag lasts for a year, but it can be renewed indefinitely at the federal government's request).

Judicial oversight and free speech are fundamental to our system of government, so these provisions have generated quite a bit of controversy. In 2004, we reported on the ACLU's successful effort to defeat an NSL issued to a New York ISP. We've also reported on an NSL challenge by Connecticut librarians, which ended last year when the government dropped the case.

But those cases are the exceptions. The report found that the use of national security letters has exploded in recent years. The FBI issued about 8,500 NSLs in 2000, the last full year before the Patriot Act was passed. Four years later, the reported use of NSLs peaked at 56,000. It appears that the vast majority of recipients turned over the records sought and kept quiet about it. If recipients can't even talk about the letters they've received, it makes it virtually impossible for watchdog groups or ordinary Americans to monitor the program for abuses.

Abuses of power?
Luckily, Congress included a provision in the 2005 Patriot Act reauthorization directing the OIG to study the use of NSLs. That report was released on Friday. Taken individually, none of the problems the OIG found are grave threats to civil liberties. But taken together, they paint a picture of an agency with poor record-keeping, inadequate safeguards, and a cavalier attitude toward the rights of ordinary Americans. In short, the FBI does not seem to be the sort of agency we ought to be entrusting with unchecked authority to seize the records of American citizens.

Congress had previously required the FBI to submit classified reports to Congress every six months disclosing the number of NSLs issued. But an audit of 77 case files showed that a significant number of NSLs never made it into the FBI's centralized database, and others were not entered quickly enough to make it into the semi-annual report to Congress. As a result, the OIG found that thousands of NSLs had gone unreported to Congress. Overall, the report found that 143,000 NSL requests had been issued between 2003 and 2005.

More troubling, the OIG found numerous examples of irregularities in the process of approving, issuing, and complying with NSLs. The law requires that an NSL be "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities," but in some cases, the FBI issued NSLs not tied to any ongoing investigation. In other cases, NSLs sought information that exceeded the FBI's authority under the law. And there were a large number of cases in which the recipient of the NSL provided the wrong information either based on typographical errors by the FBI or misunderstandings by the recipient.

The FBI had reported 26 such incidents to the Intelligence Oversight Board, which is charged with reviewing cases of possible violations of the law by intelligence agencies. But in the course of examining the 77 case files mentioned previously, they discovered 22 more irregularities among 293 NSLs, none of which had been previously reported. Extrapolating to the tens of thousands of NSLs issued over the last few years, this suggests that there have been hundreds of irregularities that have not been properly reported or investigated.

Perhaps most disturbing, OIG found that

On over 700 occasions the FBI obtained telephone billing records or subscriber information from 3 telephone companies without first issuing NSLs or grand jury subpoenas. Instead, the FBI issued so-called "exigent letters" signed by FBI Headquarters Counterterrorism Division personnel who were not authorized to sign NSLs. The letters stated that the records were requested due to "exigent circumstances" and that subpoenas requesting the information had been submitted.
In many cases, the telephone companies handed over customer records without waiting for the associated subpoena or NSL to be approved. Moreover, some "exigent letters" were issued in circumstances that would not have permitted the use of national security letters. And due to inadequate record-keeping, the FBI was "unable to provide reliable evidence to substantiate that NSLs or other legal process was issued to cover the FBI's receipt of records requested in sample exigent letters." The FBI now acknowledges that these letters were improper, and has pledged never to use them again.

Mere administrative problems?
The defenders of the Patriot Act have been quick to emphasize that the report found no evidence of malice or intentional lawbreaking in the use of NSLs. This is true. By all accounts, the problems OIG found were the result of honest mistakes on the part of FBI officials. No examples were found of FBI agents using NSLs to spy on their ex-girlfriends or blackmail their enemies.

However, OIG teams only audited 293 letters out of tens of thousands that have been issued since the Patriot Act has become law. It's quite possible that a complete audit of NSLs would uncover deliberate lawbreaking. And given the inadequate record-keeping procedures, it's far from certain that even a comprehensive audit would uncover unlawful behavior.

Moreover, the argument for judicial review does not hinge on the assumption that government officials are corrupt. Aggressive widespread use of coercive powers by well-meaning but overzealous officials can undermine American privacy rights just as effectively as actual corruption. Law enforcement agencies can make honest mistakes. Judicial review ensures that they do their homework before seeking to invade Americans' privacy.

And even if today's FBI is honest—and the OIG report gives no reason to doubt that it is—that does not prove that a future administration couldn't use its powers under the Patriot Act for nefarious purposes. One only has to remember the FBI's abuses of power under J. Edgar Hoover in the 1960s to realize that this is more than a theoretical possibility.

A system that gives good FBI agents enough latitude to accidentally issue hundreds of NSLs that violate the law certainly gives overzealous or corrupt FBI agents the ability to flout the law deliberately. It would be a mistake to wait until more serious abuses actually happen before requiring that NSLs be subject to judicial review.

 

[Lost Cause]

WASHINGTON -- President Clinton's proposed $1.84 trillion budget includes millions of dollars in new spending on technology and law enforcement programs.

The record budget request for the 2001 fiscal year, which begins 1 October, asks Congress for more money for wiretapping, police databases, antitrust enforcement, and computer crime forensics.

One of the heftiest increases, from $15 million to $240 million, will pay telephone companies to rewire their networks to facilitate federal and state wiretapping.

Under the 1994 Communications Assistance to Law Enforcement Act (CALEA), Congress may "reimburse" phone companies for their efforts, but the controversial process is the subject of a lawsuit currently before a federal appeals court.

Half of that money, $120 million, will come from the Department of Defense's "national security" budget -- a move that alarms privacy groups.

http://www.wired.com/politics/law/news/2000/02/34164