I Can’t Talk Now. This Line is Being Watched.

Bush: We’re not trolling your personal life

President Bush says the government is “not mining or trolling through the personal lives of millions of innocent Americans” with a reported program to create a massive database of U.S. phone calls. USA Today reports the government has been secretly collecting records of ordinary Americans’ phone calls in an effort to build a database of every call made within the country.

Just out of curiosity, if you create a database that includes information about every phone call I make, and are using that to “analyze calling patterns in an effort to detect terrorist activity,” how are you not mining and trolling my personal life? Because, you know, now the government knows who I call and when and for how long. Seems like pertinent personal information to me. I’m guessing lots of folks who don’t particularly like the idea of the NSA knowing who they call and when will feel the same way. I think there’s a nice bipartisan core of people who don’t want some NSA flunky standing over them with a stopwatch every time they pick up a phone.

Prediction #1: Bush’s popularity drops below 30% in the next week in at least one major nationwide poll.

Prediction #2: If the Democrats take the Congress in November, expect a lot of new privacy laws.

Thoughts?

106 Comments on “I Can’t Talk Now. This Line is Being Watched.”

  1. Are Americans so scared of terrorists that they’ll continue to put up with this crap? We’ll find out in November, I guess.

  2. I think there’s a nice bipartisan core of people who don’t want some NSA flunky standing over them with a stopwatch every time they pick up a phone.

    Bipartisan? I think you’d be wrong there – Republicans seem to put up with anything a Republican politician does – especially this one. It’s kind of bizarre considering the things he’s done while in office prove he’s not really a Republican. He’s certainly not for fiscal responsibility or smaller government, or states’ rights for that matter. I think you’d have to classify him as a Jesusitarian.

  3. I think there’s a nice bipartisan core of people who don’t want some NSA flunky standing over them with a stopwatch every time they pick up a phone.

    Heh. I’m with Timothy – I don’t think there’s a bipartisan core here. As Glenn Greenwald noted already this morning:

    Magically, hordes of brilliant pro-Bush legal scholars have been able to determine instantaneously — as in, within hours of the program’s disclosure — that the program is completely legal and constitutional (just like so many of them were able confidently to opine within hours of the disclosure of the warrantless eavesdropping program that it, too, was perfectly legal and constitutional).

    And yes, I’m cherry-picking here. Greenwald links in two pro-Bush bloggers who express reservations about the NSA program. But by and large, being pro-Bush means this program is just swell. No bipartisanship here, at least that I’ve seen so far.

  4. Timothy McClanahan:

    “Republicans seem to put up with anything a Republican politician does – especially this one.”

    Well, one does not have a (currently) 31% approval rating without at least some Republicans digging in their heels. As for noting Bush is not really a Republican, well, of course, I’ve been saying that for years. It’s just now Bush is really rubbing people’s faces in to the fact. Sadly, the rest of us have to endure the face-rubbing as well.

  5. I didn’t buy the this-isn’t-hurting-you-unless-I-say-it’s-hurting-you crap from my dentist, so I’m certainly not going to buy it from Mr. Bush and assorted hack-minions.

  6. Prediction #1 would likely have come true without this revelation, in due time. I suspect you’re right about it hastening W’s descent into Nixonian territory.

    Prediction #2 can only be seen as the fervent hope and heartfelt desire of every American patriot, both in the precondition (Dem’s in both houses) and the conclusion (strong privacy laws)

  7. The second prediction is extremely unlikely. Politicians don’t vote for restricting governmental power when they are in control. It would be like expecting a junkie to vote against free heroin.

    Now, if the Dems don’t take back Congress (extremely likely thanks to Messrs McCain and Feingold), then there might be privacy bills introduced. Even then, it will only happen if they aren’t perceived to have lost due to insufficient bellicosity, like they did in 2004 and 2002. Otherwise, we’ll get nothing but some hearings.

    Just out of curiosity, if you create a database that includes information about every phone call I make, and are using that to “analyze calling patterns in an effort to detect terrorist activity,” how are you not mining and trolling my personal life?

    Computer scans billions of phone records in batch, with personally identifying marks on those records ignored. It’s all just phone numbers and timestamps. Computer finds some patterns of terrorist activity, but none hooked to any of your numbers, so nothing gets reported about about those. Your name simply never comes up, and indeed was never in the system doing the scanning. No human agent has any knowlege of your existence, let alone your personal life. A computer could arguably be said to have such knowlege, in a Penrose’s Chinese Room sort of way, but it immediately forgot it. Given the current capacities of large relational data warehouses, that’s almost certainly how the system is designed to work. Privacy concerns, in such a system, get very attenuated indeed, and things are only set to get weirder.

    We need to come up with a morality for these situations, and we need to do so fast, but right now these technologies just don’t fit in most of our standard moral, ethical, or ideological boxes. Even entirely public and open data can become problematic when subject to massive datamining. It’s not a privacy issue when a ATM camera photographs you on a public street, for instance. It might very well be a privacy issue if all of the thousands of public cameras you walk past every day are networked, connected to face-tracking software, and are used to track your movements in real time

    One other thing to realize is that the sort of searches and correlations involved in this activity are a lot less sophistocated and intrusive than those done routinely by, say, Google. Most likely this program’s hardware is of lower capacity than Google’s as well.

  8. I’m with Jas. Once the Democrats get in power they’ll take a good long look at all this nasty stuff and decide to keep it.

  9. I’m not buying it Dave. I worked in long distance fraud for the worlds most evil company for a while and we looked at every long distance phone call made on our circuits. Just because it doesn’t say KRW called JS for 2 minutes yesterday doesn’t mean it’s anonymous. Simplest thing in the world to connect a PBN to a name. I would also question where external data about my call is public or not. How would someone get that information if I didn’t give them access to my phone bill or call logs? This is a pretty egregious example of spying on everyone hoping to catch the .00001 percent who are “bad.”

  10. Dave:

    “One other thing to realize is that the sort of searches and correlations involved in this activity are a lot less sophistocated and intrusive than those done routinely by, say, Google.”

    Yes, but one is accessed by the US Government, and one is not (so far as we know). I’m also not entirely convinced a) these databases will not be used for other government initiatives, or that b) the information in these databases cannot be correlated with information in other databases to yield invasive information without the use of court orders. Which is to say the potential for abuse, particularly with this administration, is huge.

    Kevin:

    “Once the Democrats get in power they’ll take a good long look at all this nasty stuff and decide to keep it.”

    All y’all are forgetting that George Bush will still be president after these elections. The Democrats will still have a reason to pass more privacy laws (which Bush will then almost certainly veto — which will be interesting).

  11. Let’s not get overly excited here. These are billing records, being trolled by computers for people calling known Al Qaeda #s. If there’s a good reason for needing to keep a call to Al Qaeda secret, I’d like to hear it.

    That’s not to say this couldn’t be abused, but that’s true of anything. As long as it’s being used for anti-terrorism, and there’s no evidence they’re using it to find your call to Joe the local pot dealer, I say my right to keep from being blown up by terrorists outweighs my right to not have the gov’t datamine my phone bills.

    Prediction #3: If #2 happens, expect more terrorist attacks to go unprevented. This is exactly the sort of thing we should have been doing BEFORE Sept 11th.

  12. TallDave:

    “If #2 happens, expect more terrorist attacks to go unprevented. This is exactly the sort of thing we should have been doing BEFORE Sept 11th.”

    It’s the stuff we should be doing with proper respect for laws and privacy, neither of which I have any confidence this administration respects.

    Also, of course, given all the various holes in our preparedness that this administration has allowed to go unpatched which don’t involve taking a weedwhacker to the 4th Amendment, if there is another unprevented terrorist attack, it’s likely to be because of reasons other than tending to the Constitutional rights of US citizens.

  13. TallDave:

    Garbage.

    Why am I being suspected of calling someone bad? Where is the proof? What about false positives? Insert slipery slope argument involving big brother eventually looking at everything you do, ala the Lacy stories by David Drake. Who I call, when, and for how long is my business and not the governments. Not until they have a reason to suspect I am doing something wrong. The ends can’t justify the means.

  14. I think there’s a nice bipartisan core of people who don’t want some NSA flunky standing over them with a stopwatch every time they pick up a phone.

    You, sir, are correct.

  15. I’m not buying it Dave. I worked in long distance fraud for the worlds most evil company for a while and we looked at every long distance phone call made on our circuits. Just because it doesn’t say KRW called JS for 2 minutes yesterday doesn’t mean it’s anonymous. Simplest thing in the world to connect a PBN to a name.

    Sure, but it’s virtually certain that this program isn’t making those connections for they hypothetical average American who doesn’t trigger any patterns. It would be pointless and incredibly expensive.

    I guess I need to state that I oppose this program (and would certainly oppose the current administration were the Dems not continually trying so hard to lose my vote). That said, it probably doesn’t fit into the categories we (in concensus) currently consider to be privacy violations, and it might even very well fit within the letter of the law.

    How would someone get that information if I didn’t give them access to my phone bill or call logs?

    Near as can be told from the stories, the NSA asked the telcos, and the telcos (bar Qwest) simply handed it to them. No demands, no warrants, no coercion, no nothing. Interesting to see whether actions can be taken against the phone companies for violating their privacy policies, but it’s harder to fault the government for using information voluntarily obtained.

  16. Dave:

    You missed my point. The telephone number and the owner of that number are interchangable. If you have one you have the other. It’s not better because just the phone number appears in these records. It’s bad that these records where handed over in the first place. Because the phone companies did this without a warrent doesn’t make it legal or moral. Hopefully there will be legal fallout from this in the phone companies direction.

  17. It’s the stuff we should be doing with proper respect for laws and privacy, neither of which I have any confidence this administration respects.

    Sure, but what basis is there for that belief? For all the noise about trampled civil rights, can anyone point to a single example where this information was abused, or used for purposes other than targeting an international terrorist organization?

    Why am I being suspected of calling someone bad?

    That’s a fair point, but of course the answer is that you’re not. It’s a question of what level of privacy can be achieved while also doing a reasonable job of protecting us from being killed.

    I would counter with: what harm do you suffer from being datamined this way? Your phone records are probably for sale anyway.

  18. Dave:

    “Oh, and people should realize there is very little correlation between spring generic ballot polls and subsequent Congressional election results.”

    This, I believe, especially because most people seem to think every congressperson should be voted out of office, except their own.

    “Center – right” would be tolerable. But this administration is not much about the center.

  19. Which is to say the potential for abuse, particularly with this administration, is huge.

    The last administration which didn’t engage in large-scale violations of what we now consider to be privacy rights was probably Coolidge. The astonishing thing about this administration is how small it’s encroachments on civil liberties have been, considering that it’s wartime. A grand total of what, two US citizens detained without habeus corpus? FDR managed that before lunch most days.

    No real point in this, beyond a general ‘put not your trust in princes’, even if you happen to agree with their policies.

  20. Uh, correct me if I am wrong, but this was put into place in 1999, I mean, I want to think it is Bush’s fault, but wasn’t it Clinton who put it into place?

  21. But this administration is not much about the center.

    Well, ask a true-blue conservative and they will tell you how angry they are about Bush’s policies on things like Medicare expansion, immigration, gov’t spending… I could go on.

    Of course, Clinton was probably more centrist… but after 1994 he didn’t have a lot of choice. Bush has had such a compliant Congress, he’s never even vetoed anything.

  22. Dave:

    “No real point in this, beyond a general ‘put not your trust in princes’, even if you happen to agree with their policies.”

    Since I think the primary policy of any administration should be to respect the Constitution, I think this is baked in to my positions anyway.

    In any event, past administrations are over, and future administrations are not here. I’m focused on this one.

  23. TallDave,
    Let’s not get overly excited here. These are billing records, being trolled by computers for people calling known Al Qaeda #s. If there’s a good reason for needing to keep a call to Al Qaeda secret, I’d like to hear it.

    To start with land line bills do NOT routinely contain the numbers called. This is call logging data.

    And how do *you* know how this database is used?

    And if nobody cares then why are there stiff penalties for phone companies who expose the call data? Something like a Million bucks a day per incident, which is why Qwest wouldn’t do it. The others are going to be hit with so many class action lawsuits they won’t know what to do.

    And I know for a fact that the government is contracting private companies to develop software to, in real time, screen and filter voice, text, and image data. We’ve already got the hardware to do it, or did you think supercomputers were only good for playing chess?

  24. TallDave,
    Your phone records are probably for sale anyway.

    Absolutely not! Are you really this ignorant?

  25. Well, there are those grey-area companies flogging cell phone records. They aren’t quite illegal yet. There doesn’t appear to be a similar set of businesses selling landline info.

    That said, this program is heinous. I can’t see any excuse for it.

  26. Also, of course, given all the various holes in our preparedness that this administration has allowed to go unpatched which don’t involve taking a weedwhacker to the 4th Amendment, if there is another unprevented terrorist attack, it’s likely to be because of reasons other than tending to the Constitutional rights of US citizens.

    Well, one man’s Constitutional right is another man’s terrorist loophole; personally, I don’t mind having my phone numbers checked for Al Qaeda links, but I suppose reasonable minds can disagree (though I’m still waiting for a reason better than “potential for abuse”).

    I think its more likely that precisely the opposite is true: if we are successfully attacked, it will be because terrorists understand the limitations of the government’s ability to gather information about them and exploit those loopholes. Domestic organized crime has been doing so successfully for decades.

  27. To start with land line bills do NOT routinely contain the numbers called. This is call logging data.

    Your phone bill apparently looks different than mine.

    Your phone records are probably for sale anyway.
    Absolutely not! Are you really this ignorant?

    You tell me.

  28. And as I posted above, TallDave, those are cell phone records for sale, not landline records. I think heads would roll if anyone tried to sell landline phone records.

  29. TallDave:

    “personally, I don’t mind having my phone numbers checked for Al Qaeda links”

    Nor I, as long as it’s been approved by a court as necessary, which as far as I am aware this data mining excusion has not (which is why Qwest refused to participate, and rightfully so). Let’s do more than pretend we have three separate and independent branches of government, shall we?

  30. Sure, but what basis is there for that belief? For all the noise about trampled civil rights, can anyone point to a single example where this information was abused, or used for purposes other than targeting an international terrorist organization?

    If there are examples, what makes you think anyone could point to them? That’s precisely the point of judicial oversight for things like this — to make it harder to get away with abuse.

    Qwest reportedly asked the NSA to get judicial review of this program from FISA before they’d cooperate. The NSA refused. They didn’t want anyone looking over their shoulder, even to the minimal extent that they’d get from FISA. If that doesn’t trigger even a little suspicion … well, I dunno.

    I would counter with: what harm do you suffer from being datamined this way?

    I would counter with: We don’t know. That’s the point.

    The US system of government is not based on trust.

  31. The astonishing thing about this administration is how small it’s encroachments on civil liberties have been, considering that it’s wartime. A grand total of what, two US citizens detained without habeus corpus? FDR managed that before lunch most days.

    Cool! Someone who knows history.

    Stunning

  32. Well, one does not have a (currently) 31% approval rating without at least some Republicans digging in their heels.

    I think that percentage of Republicans voting against him now would be very small. 31% sounds about right for die-hard Republicans in this country, minus _maybe_ a couple of percent. That is the traditional Republican core. Dems have about the same, and the other third is where the movement is. All a 31% approval rating means is the undecides aren’t happy – the Republican core is still following El Presidente into the ground.

    Mind you, when the undecides decide against you, that’s pretty much the end of your career at the next election. Let’s hope this translates into a better-than-expected Dem win in November for Congressional elections. That would (hopefully) stop the rubber-stamping that’s going on now. I very much doubt that _enough_ Dems could possibly win in November to actually start reversing anything other than the downward spiral. For that, it’ll take a united White House and Congress.

    Even more important to me than more privacy laws in a Democratic union would be a massive strengthening of the checks and balances that have been routed around during this administration. Hopefully that’s something that both parties could get behind, no matter who’s in power. It shouldn’t be _possible_ for Congress to hand over power to the President, and it shouldn’t be _possible_ for the President to sign a law at the same time he says he’s going to ignore it; his ass should be booted out about 5 minutes after that kind of nonsense. If we didn’t have a Republican president, the Republicans would be up in arms over that.

  33. In October 1994, Congress took action to protect public safety and ensure national security by enacting the Communications Assistance for Law Enforcement Act of 1994 (CALEA), Pub. L. No. 103-414, 108 Stat. 4279. The law further defines the existing statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization.

  34. At least one carrier did not feel the NSA had lawful authorization, and since they have not to date been compelled to provide such data, that certainly suggests something about the legality of the NSA’s request.

  35. The law further defines the existing statutory obligation of telecommunications carriers to assist law enforcement in executing electronic surveillance pursuant to court order or other lawful authorization.

    I don’t think “because The Decider wants to” counts as a lawful authorization in the United States. Not yet.

  36. Aside from the question of “how do we know it won’t be misused (seeing as it’s secret and there is NO oversight)”, there is the fact that this is one step down the road to Big Brother-ism.
    This data-mining might not in itself be harmful (it actually reminds me of the TV show “Numbers”), but it’s a precedent for the NSA wanting to data-mine our purchases, our internet usage, and the content of our communications. You have to admit that we’d definitely be able to catch terrorists that way! In fact, why not share the information with the police and be able to catch domestic criminals as well! Brilliant! [/sarcasm]

  37. I see here an opportunity to create phone line masking businesses. Get a hundred lines and sublet them. Who owns them is not evident — and not to be revealed without a court order.

    Considering some of the things I do, tracking would show me calling myself in many transactions :)

  38. Uh, correct me if I am wrong, but this was put into place in 1999, I mean, I want to think it is Bush’s fault, but wasn’t it Clinton who put it into place?

  39. “I don’t think “because The Decider wants to” counts as a lawful authorization in the United States. Not yet.”

    I think this is the real nut of the arguments here. This plan, much like the earlier warrantless wiretappings, would have been entirely legal if they’d just gone to the FISA courts and asked for permission, within the 72 hours window after implementation.

    It becomes obvious that this administration is dead-set against doing things “by the book” in any way.

  40. I was going to bring up CALEA, but CoolBlue beat me to it. The difference as I interpret it is this: the current law requires the phone company to maintain their records in case law enforcement needs to go back through them, provided they have the proper warrant. What Bush wants is to get all that data up front without a warrant and sift through it. It’s the same crap as the warrantless wiretapping…

    And the reason I know about CALEA is because of the recent trial of former IL governor George Ryan – during the jury deliberations someone called a local radio talk show and talked about what the jury foreman apparently had told him. The police were able to figure out where the call came from after the fact because of this law…

  41. John,

    Nor I, as long as it’s been approved by a court as necessary

    Well, Article II actions involving international threats do not require warrants; the courts have repeatedly held this to be true, regardless of what pundits claim. This is why Clinton was able to execute a warrantless search of Aldrich Ames and run the ECHELON program.

    This plan, much like the earlier warrantless wiretappings, would have been entirely legal if they’d just gone to the FISA courts and asked for permission

    People keep saying that like it’s no big deal. There is a MOUNTAIN of paperwork that has to be done for every FISA wiretap. If you have a known terrorist who has made 34 calls and you want to tap those numbers to see who those 34 people are calling so you can figure out if any of them are also terrorists, forget it. There just isn’t enough manpower at DOJ to monitor Al Qaeda that way through FISA, and that’s besides the fact the DOJ routinely nixes many requests before they get to FISA.

    Let’s do more than pretend we have three separate and independent branches of government, shall we?

    I’ll be the first to demand heads roll if they’ve been misusing their powers, but the fact is we have an Executive branch for the exact purpose of fighting threats just like this. Congress is not superior to the White House, and cannot pass laws that restrict its Constitutional powers, as FISA itself noted when it was established iirc: if FISA violates Article II, it is unconstitutional, so it cannot be held to check the President’s power to fight wars.

    Now various wags have interpreted that to mean the President has claimed “unlimited power,” but of course that isn’t true. He’s just not restricted from any reasonable means of pursuing Al Qaeda by the normal laws that govern domestic law enforcement. He cannot, for instance, order random searches of people’s homes on the grounds terrorists might be hiding there, because that would be unreasonable, but by the same token he doesn’t have to get a warrant before ordering an airstrike.

  42. “There just isn’t enough manpower at DOJ to monitor Al Qaeda that way through FISA”

    So, uh, stop cutting taxes and start hiring more people. There’s no way that, if I said to my boss tomorrow “I didn’t feel like following our company policies, so I put out a product that might harm consumers” that I wouldn’t be fired. Using the argument “We don’t have enough people to do this legally, so we’ll break the law instead” is the exact same thing. If the safety of our country is so important, put our money where out mouth is: as it is, Bush apparently thinks we value cash in our pockets above national security. I, for one, disagree.

    I know there’s more to it, but that one I could deal with quickly.

  43. In any event, past administrations are over, and future administrations are not here. I’m focused on this one.

    Not to put too fine a point on it, but were that the case how could you possibly judge any of this administrations actions, beyond mere exercise of gut moral outrage? Context matters. Consistency matters. Culture matters. Without an understanding of history you’re just asking to be taken by the first con man who comes along.

    (If this is over the posting guidelines, just delete it, with my apologies.)

  44. I should add, I do think it is very unfortunate that such a program is necessary, and potential for abuse by this or follwing administrations is not a trivial concern. I’m basically a classical liberal, and very cynical about gov’t in general. Unfortunately, we currently do have a real terrorist threat.

    I hope we see a day sometime in the next couple decades where such a program is no longer necessary, and we do need to be vigilant and not let this become a slippery slope of creeping totalitarianism; this program MUST be ended at some point. I don’t think we’re anywhere near totalitarianism yet, but it could happen under the banner of either party.

  45. Anne C.

    This data-mining might not in itself be harmful

    Given what has been revealed about the program, I don’t think data-mining is the point. I believe they are doing Social Netwotk Analysis. I’ll have a post up about my suspicions soon.

    Jas

    This plan, much like the earlier warrantless wiretappings, would have been entirely legal if they’d just gone to the FISA courts and asked for permission, within the 72 hours window after implementation.

    First, I don’t think this is separate from the earlier “warrantless” wiretappings. And second, if it is different, I don’t think it qualifies as wiretapping at all.

    Tall Dave

    This is why Clinton was able to execute a warrantless search of Aldrich Ames and run the ECHELON program.

    This is correct.

    President Clinton’s (famous) Deputy Attorney General Jamie S. Gorelick said

    “The Department of Justice believes — and the case law supports — that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general,”

    More history….

  46. Dave:

    “If this is over the posting guidelines, just delete it, with my apologies.”

    Huh? No, this is fine.

    I’m not saying I’m ignorant, Dave. I am saying that the possibly unethical actions of previous administrations do not justify the unethical actions of the current one, just as the unethical actions of the current administration will not excuse the unethical actions of future ones. As for “context matters,” the correct context here is the law and the Constitution.

  47. Bill Macy said:

    Uh, correct me if I am wrong, but this was put into place in 1999, I mean, I want to think it is Bush’s fault, but wasn’t it Clinton who put it into place?

    If that’s true, then what explains this sentence from the USAToday article linked to:

    The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said.

    It looks like this started in 2001, not 1999. That would make it Bush, not Clinton.

    K

  48. TallDave:

    “There is a MOUNTAIN of paperwork that has to be done for every FISA wiretap. If you have a known terrorist who has made 34 calls and you want to tap those numbers to see who those 34 people are calling so you can figure out if any of them are also terrorists, forget it.”

    This is why they have 72 hours after which to pursue a court order, if memory serves. And if the problem is manpower, add more men (and find an intelligent and useful way to streamline the court order process). I’m not notably sympathetic to this as a rationale; there’s a lot of paperwork involved in arresting people, too, but that doesn’t excuse not reading them their Miranda rights. Which is to say that bureaucracy does not trump the Constitution.

    “He cannot, for instance, order random searches of people’s homes on the grounds terrorists might be hiding there, because that would be unreasonable, but by the same token he doesn’t have to get a warrant before ordering an airstrike.”

    I’m afraid I don’t follow the logic to this one at all, unless you’re suggesting that can’t call in an airstrike in the stead of randomly searching homes. Otherwise, the ability to call in an airstrike (in what one assumes is a foreign country) has nothing to do with searching homes without a warrant here at home.

  49. It astounds me now narcissistic most Americans are to think that the NSA, or anybody in government (outside of the IRS, perhaps, and they already know all about you) would give a shit what they talk about in their phone calls. People, most of your *relatives* don’t care; why would some drone of an analyst? Not to mention the fact that, even if they cared, they don’t have the resources to sit and listen to individual phone calls. The only one listening to your calls is a computer, and by the time a real person sees it, it’s nothing but statistics. Geez, guys, grow up and get over yourselves.

  50. Scalzi

    the correct context here is the law and the Constitution

    Clearly there not a Constitutional issue or there would be no need for a law.

    It is also clear that no one has sorted out the precise Article II Powers the President has during war time. The clue to this is that few in Congress dispute the necessity of the NSA program. Diane Feinstein who after making a stink, was briefed and called it “a very impressive program.” And she ain’t no right winger.

    When you get past the trolling for votes, the underlying issue in both the Congress and the White House is: who’s got the power. The Executive Branch is not going to give up any power they think they have (i.e. Clinton and FDR) and Congress is not going to give up any power it thinks it has.

    And no one wants to bring it to the Supreme COurt because then someone for sure will lose the power for all time (well, for a while at least) and both sides are worried it might be them.

    And finally, this program in no way can be called wiretapping.

    I have finished my post on Social Network Analysis and how it applies to the recent revelations if anyone is interested.

  51. Tim of Angle

    It astounds me now narcissistic most Americans are to think that the NSA, or anybody in government would give a shit what they talk about in their phone calls.

    LOL

    Precisely.

  52. Narcissistic?

    How about we do this. I’m going to come to your house and stand outside your windows watching everything that goes on. However, I will wear a set of welding goggles, so that the details of whats going on are obscured.

    I could of course take off the goggles at any point, but I wouldn’t do that because I’m a nice guy. Trust me. I’m just making sure terrorists don’t sneak up on you while you are sleeping.

  53. Tim of Angle:

    “Geez, guys, grow up and get over yourselves.”

    That’s just about the stupidest argument for the abandonment of civil liberties I think I’ve ever read. Thanks, Tim!

  54. I’m just making sure terrorists don’t sneak up on you while you are sleeping

    If that’s how you want to spend your time, go for it.

    But if you are charged will preventing a terrorist attack and it happens down the block while you’re watching me, someone is going to say, “what the hell were you doing watching this guy to the exclusion of everyone else?”

    And that, ultimately is the thing. If you believe the government has other motives than trying to catch terrorists, then you will likely worry.

    If you believe they are trying to catch terrorists, then you know there simply isn’t enough time, money, or people for them to be listening in to everyone’s conversations. They would need to find a method that is a bit more efficient so they can focus on people who are likely to be terrorists.

    But if you’re right, the NSA guy assigned to listening in to my phone calls had better have a hobby he likes

    a lot.

  55. CoolBlue:

    “Clearly there not a Constitutional issue or there would be no need for a law.”

    Qua? Given that I can’t figure out what the hell you’re trying to say with sentence, there’s no “clearly” here.

    Speaking of laws, a clutch of them suggesting that what AT&T, et al have been doing for the NSA is illegal. Fun stuff for the lawyers to argue over.

    “When you get past the trolling for votes, the underlying issue in both the Congress and the White House is: who’s got the power.”

    Well, I couldn’t possibly give a crap about that. My concern is my right not to have the government hunched over my private concerns, idiotic exhortations to “get over ourselves” notwithstanding.

  56. “the correct context here is the law and the Constitution

    “Clearly there not a Constitutional issue or there would be no need for a law.”

    Uh… The Constitution is not self executing. It provides the framework for laws. Or am I missing something…

  57. To be clearer: a law is passed under the Constitution. It has to comply with it. A law crreating a court to review warrants is authorized by the Constitution. An executive that engages in warrantless searches has some explaining to do under Article IV.

  58. This is an interesting article on ArsTechinca providing more technical detail on the scope of this and what the government can actually data-mine from it.

    Prevailing wisdom is that targetted intelligence will always be more effective than brute force data computation at finding threats. Here is a good analysis as to why. So essentially we have a momentus waste of time, coming at the tax payers expense (and if you look at the current finances of this government we really shouldn’t be flushing money down the toilet when we don’t need to), and on top of that is illegal. So sorry, I don’t like my privacy violated, much less when doing so achieves nothing and costs a fortune.
    Now, for the couple of posters (TallDave) who seem to think we should give up all of our civil rights because we shouldn’t have anything to hide, riddle me this, do you want survelance cameras installed by the government in your house? Sure, it isn’t there now, but by being acceoting to this current act, and those like it, you set a president. You say, hey, I’m willing to compromise, to give up what I have, because I am so freaking afraid of hypothetical enemies that may one day hurt me, so your little massive scale data mining trip is ok by me. And then they think hey, what else can we get away with. Not only does it matter what steps they take now, but what path those steps carrying them down.

  59. John Scalzi:

    “Geez, guys, grow up and get over yourselves.”

    That’s just about the stupidest argument for the abandonment of civil liberties I think I’ve ever read. Thanks, Tim!

    Very disappointing John. What Tim of Angle is pointing out is that nobody is listening to the content of those phone calls. This is simply the data captured by the digital switching machines that record the number calling, number called, date, time, and duration of the call. If the phone companies were recording the content of all phone calls none of us would be able to afford a phone because of all the data storage media it would require. That’s simply common sense.

  60. Another Tim:

    “Very disappointing, John”

    Are you under the impression I give a shit whether I disappoint you, Another Tim?

    What you apparently are having trouble following is that the problem is not that “only” machines are collecting personal data on the behest of the government, it is that the personal data on American citizens are being collected at all, without the slightest bit of oversight. It’s possibly illegal, possibly unconstitutional, and definitely over my comfort line of what I think is appropriate. That being the case, it’s simply irrelevant whether the data are being sifted by computers, by NSA analysts, or by twinkly fairies with butterfly wings. The government shouldn’t have that data at all, in the manner it’s been collected.

  61. Coolblue:

    I have finished my post on Social Network Analysis and how it applies to the recent revelations if anyone is interested.

    Where is that available?

  62. I think implicit in:
    Sure, but it’s virtually certain that this program isn’t making those connections for they hypothetical average American who doesn’t trigger any patterns. It would be pointless and incredibly expensive.
    and

    It astounds me now narcissistic most Americans are to think that the NSA, or anybody in government (outside of the IRS, perhaps, and they already know all about you) would give a shit what they talk about in their phone calls.

    is the notion that only the guilty have anything to fear. That most people, not being involved with terrorists, would not get flagged in any way and so this doesn’t affect them.

    Well, tell that to the people mistakenly placed on “no fly” lists. If the Federal Government can’t get that right, why should anyone think they can get this right?

    I was listening to the radio show “Open Source” on the way home. As it turns out, the vast majority of the hits that the NSA came up with by doing this data mining and turned over to the FBI were false positives. So it’s quite likely that perfectly innocent people were investigated as potential terrorist suspects for no good reason

    Of course, even if worked absolutely perfectly, it’s still an invasion of privacy since the government would still be sifting through data that it oughtn’t have at all without some sort of oversight. The thing with Aldritch Ames is that it was targeted at a specific person the government was already suspicious of due to hard evidence. So I don’t think that’s an apt parallel here unless the government had hard evidence to be suspicious of everyone who has ever used a telephone in the US.

  63. Okay, here’s a scenario:

    Joe, a nobody corporate drone, calls his mistress Jane who just got a new prepaid cell phone, one with a number that used to belong to someone on the terrorist watch list. In fact, they talk to each other regularly, if sporadically. This information is considered enough to authorize a (totally legal) wiretap warrant, what with the Patriot Act authorization of tapping numbers instead of individuals.

    So the FBI taps, records their conversations which then get transcribed and entered into FBI files for both Joe and Jane. The investigation obviously stops pretty quickly, because all they’re doing is discussing their love on the down-low.

    Then, Joe and Jane go their separate ways, or maybe they don’t, and one of the involved parties–Joe, Jane, Joe’s wife or Jane’s husband–winds up with their own fifteen minutes. And one of the dozen or so people involved remembers the old wiretaps and leaks the information to the press.

    Privacy violated.

    That said, there are many ways to accidentally fall into an investigation of Joe and Jane, but the point, I think, is to limit the number of ways this might happen, not expand them.

    Everyone has something they don’t want anyone else to know, much less everyone else. Unless there is greater transparency, saying “I don’t call Al Qaeda so they’ll never bother to listen to me” is a bit disingenuous.

  64. John Scalzi,

    What you apparently are having following is that the problem is not that “only” machines are collecting personal data on the behest of the government, it is that the personal data on American citizens are being collected at all, without the slightest bit of oversight. It’s possibly illegal, possibly unconstitutional, and definitely over my comfort line of what I think is appropriate.

    As it has been already been pointing out, the phone company only records this data because it is compelled to by law for law enforcement purposes. I remember when I was much younger they didn’t record call information for anything other than long distance calls, and that was only for billing purposes. I’m sure they didn’t retain it for very long, because recording, inventorying, and storing data costs money. Obviously, after converting to digital networks, the laws were changed to compel them to keep the information for all calls. That’s a lot of information. I forget the exact number, but I recently read that americans make several billion telephone calls every day.

    It’s not illegal. It’s has and is being recorded because of the law. It’s not unconstitutional because the content of the calls are unknown. It’s also, therefore, not eavesdropping, or wiretapping which both seek to target the content of phone calls. And as to your personal comfort zone; I don’t want to know you that well.

    As to why your opinion is disappointing. You usually demonstrate much more logic and reason in your posts on the whatever.

    Also, regarding the posts concerning the FISA courts, I’ve heard nothing in the news that says these involve international calls. In fact what I’ve heard reported is the opposite. If we’re dealing with domestic calling information then the FISA court simply doesn’t apply. This is an entirely different jurisdiction.

    Also, from what I just heard reported on CBS, domestic law allows the FBI to have this information for any law enforcement reason. Which is what has been in the law for decades.

  65. Another Tim:

    “As it has been already been pointing out, the phone company only records this data because it is compelled to by law for law enforcement purposes.”

    That doesn’t have a single thing to do with my concern, which is that the NSA is taking that information without appropriate oversight:

    The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer’s consent; (iv) for telemarketing enforcement; or (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.

    (from here)

    So not only does the NSA not have a legal reason to have those data, AT&T et al. had no legal right to give them to it (by this interpretation of the Stored Communications Act), which means that AT&T et al. could be looking at one massive class action suit brought by their customers.

    You seem to be confusing the obligation of the telecommunication companies to store information for law enforcement purposes with the right of the NSA to take it without due process. The former certainly exists; the latter, I believe, does not.

    “domestic law allows the FBI to have this information for any law enforcement reason.”

    Without any of the above stated exceptions? Until you can cite, consider me dubious. And what does that have to do with the NSA?

  66. John Scalzi:

    “domestic law allows the FBI to have this information for any law enforcement reason.”

    Without any of the above stated exceptions? Until you can cite, consider me dubious. And what does that have to do with the NSA?

    CBS reported that the phone companies gave the data to the FBI which I assume has administrative subpoena authority. If the FBI turns it over to the NSA and asks it for help, I don’t know how you can get to a breech of the law from there.

    Coolblue said it very well on his blog, “You know, I remember after 9/11 everyone was accusing people of “not connecting the dots”. And now that people are trying, many get their panties in a bunch.”

  67. Anonymous (who is probably Another Tim):

    “If the FBI turns it over to the NSA and asks it for help, I don’t know how you can get to a breech of the law from there.”

    Again, even if that were the case, what does that possibly have to do with the topic at hand? The FBI has nothing to do with the NSA’s little agreement with AT&T. There’s little point in spinning out scenarios in which the NSA getting its jammy little hands on the data could be legal; the issue before us is whether the way it did get the data is legal.

    “Coolblue said it very well on his blog, ‘You know, I remember after 9/11 everyone was accusing people of “not connecting the dots”. And now that people are trying, many get their panties in a bunch.'”

    Crap. I want people to connect the dots. I also want them to do it legally and with full recognition of my constitutional rights as an American citizen. I don’t buy the theory — or rationalization — that doing the first requires the lack of the second.

  68. “The Department of Justice believes — and the case law supports — that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general,”

    More history….

    Here’s a history lesson for you — Gorelick was speaking *before* FISA was amended to cover physical searches. After FISA was so amended, the Clinton administration obeyed the law.

  69. John Scalzi,

    Yes that anonymous entry was me. When I went to the Coolblue blog to pull the quote my browser obviously errased the name field of the comment form.

    The amazing thing about this debate is that this is the same program that was revealed last year when the original NSA leak was made. It’s just being recycled through a fresh news cycle in order to make a fresh hit against the Bush administration.

  70. No worries about the “anonymous,” Another Tim. Sometimes it happens to me. On my own blog! Sooooo embarrassing.

    Yes, it’s all the media’s fault the Bush Administration has such contempt for the Constitution.

  71. Ugh. I just finished a post on this on my own blog, so I’ll mostly just crib from myself:

    http://jeffporten.com/2006/05/12/more-on-wiretapping-or-moron-wiretapping-your-calls/

    But let’s be clear, since so many people here are talking out of their asses. It is known that Bush administration has various programs in place to collect your data. Some folks here are then saying, “it’s all just statistics,” or “they won’t care about you.”

    Fact is, you just don’t know. Period. It’s secret. They didn’t want you to know this much. And the whole point of the data-mining strategies that have been developed is so they can aggregate or view your individual data, as they see fit.

    Been done since ECHELON. You could look it up. In a book.

    Second — yes, yes, yes, Clinton was a right unholy bastard on most privacy issues. Back in those days, I was campaigning against Clipper and the V-Chip, and never mind that he’s my guy and he’s a Democrat. It was still wrong. Bush is wronger. Doesn’t make a damn bit of difference who’s shoveling the shit, and doesn’t make the new shit smell any sweeter.

  72. John Scalzi:

    I said,

    “The amazing thing about this debate is that this is the same program that was revealed last year when the original NSA leak was made. It’s just being recycled through a fresh news cycle in order to make a fresh hit against the Bush administration.”

    You said,

    “Yes, it’s all the media’s fault the Bush Administration has such contempt for the Constitution.”

    My response:

    No it’s amazing how programmatically the media can orchestrate a response from the leftist biased people who listen to political news. It’s red meat (Oh wait, leftists don’t like red meat, well… maybe it’s green). Recycled red meat, but it worked.

  73. BTW, the NSA is not supposed to be involved at all in domestic spying, period. Even if this were a constitutional thing to do, the NSA ought not be the agency doing it.

    Also, based on the news reports I’ve heard on the radio, this is not the same program as the unwarranted domestic spying program that caused the ruckus the last time. That involved the NSA actually listening into to people’s telephone calls. This involves the government getting telcos to handover our private records so that they can do some data mining. (According to On Source Radio last night, they had also apparently been tapping internet connections to get the same sort of data for internet communication with help from the net trunk line providers.) It doesn’t sound like the same program to me, although undoubted the same people were involved and this could have been a mechanism to figure out whose phone calls to listen to.

    As an observation, I don’t understand why there are people arguing essentially that it is impossible to protect the country from terrorist attacks without violating the basic civil rights that are foundation of this country. I mean, why is it impossible? This administration hasn’t tried that yet, so it’s not like they know that any such scheme would be unworkable due to, say, the unavailability of information. i.e., I’m trying to forestall the “does it take a nuclear attack which kills innocent nuns and babies to convince you?” counter-argument. If it really is impossible, they would know because they would not be able to get the information necessary for their analysis before the death of said nuns and babies. One can figure out that one would be flying blind extremely quickly.

    In hindsight, the government turned out to have known enough information to at least piece together that there would be a 9/11 attack. That is, they already had the data, but the methods and manpower were not there to draw the conclusions. (i.e., there wouldn’t have been all that handwringing about “connecting the dots” if we hadn’t already had the dots there in front of us.) Given that, it seems to me then that they should focus on improved methods of analysis, not more aggressive methods of data collection that violate our civil rights since data collection was apparently not the issue.

  74. Another Tim:

    “No it’s amazing how programmatically the media can orchestrate a response from the leftist biased people who listen to political news.”

    Uh-huh. As if Fox News and talk radio doesn’t have the right banging on talking points like rats on a feeder bar.

    The person who buys into the “this is old news” response is — and this is not too harsh — a fucking moron. Because you know what? When it was first reported, it was very likely a violation of the Constitution. Now, when it resurfaces with more and better information (i.e., the press is doing its job and reporting), guess what? It’s still very likely a violation of the Constitution. Violations of the Constitution by our government are always worth reporting in my opinion. You report them over and over and over until everybody knows about them and hopefully they are stopped. That’s the job of the press, not to report something once and then go, “oh, well, I guess no one’s listening,” and then go on to report about whoever got voted off American Idol.

    No doubt you would have said about continuing coverage of and investigation into Watergate was that it was “recycled red meat.” I mean, how many times did they reheat that silly break-in.

    Also, as a point of fact, it’s not just the left concerned about the administration’s tendency to ignore the Constitution when it feels like it.

    So, you know, Another Tim, if all you’re going to do is vomit up idiotic shibbloleths about what the “left” and “the media” does, you can go do it somewhere else.

  75. Scalzi

    That doesn’t have a single thing to do with my concern, which is that the NSA is taking that information without appropriate oversight:

    But there is appropriate oversight: The Intelligence Committees of both houses are fully briefed on the program.

    And you have yet to make the Constitutional case: There is zero Fourth Amendment case law that prohibits the collection of this data in the way that has been reported. If you know of some, please inform me.

    Phillip J. Birmingham

    Here’s a history lesson for you — Gorelick was speaking *before* FISA was amended to cover physical searches. After FISA was so amended, the Clinton administration obeyed the law.

    Excuse me, but the FISA act was passed in 1974 and was a direct result of the Chuch Commission (which also, BTW, was a contributor to our lack of decent Intelligence prior to 9/11 and the Iraq war). Ms Gorelick was speaking in 1994. Using my abacus I calculate a 20 year difference.

    And from the Washington Times, Dec 22, 2005 we read:

    In a 2002 opinion about the constitutionality of the Foreign Intelligence Surveillance Act (FISA) and the USA Patriot Act, the court wrote: “We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

    So again we run into Article II questions regardless of much people want to unilaterally declare the program illegal on its face.

    The Constitutional issues are much more complex.

  76. CoolBlue:

    “But there is appropriate oversight: The Intelligence Committees of both houses are fully briefed on the program.”

    These would be the same Intelligence Committees who were unable to make note of the program to their colleagues or to protest the program because of the classified nature of the program, right? You have a funny definition of oversight, there, seeing as it’s defined as “being told a program exists but that there’s nothing you can do about it.”

    “And you have yet to make the Constitutional case: There is zero Fourth Amendment case law that prohibits the collection of this data in the way that has been reported.”

    And as far as I know, there is zero Fourth Amendment case law that allows it, either. Probably because it was a secret program, which no one knew about. Something can be bloody well unconstitutional prior to being declared so by a US Court. This argument is appallingly stupid.

  77. Scalzi

    You have a funny definition of oversight, there, seeing as it’s defined as “being told a program exists but that there’s nothing you can do about it.

    This is how oversight is done. To say they have no avenue with which to complain, is to indicate that you simply are unaware of it. For instance, Congress through the oversight committees can vote to not fund any project to which they object.

    You’ve been listening to Ms Peolsi again, I surmise…

    And as far as I know, there is zero Fourth Amendment case law that allows it, either. Probably because it was a secret program, which no one knew about. Something can be bloody well unconstitutional prior to being declared so by a US Court.

    I was referring to the fact that no case law has ever found that the mere collection of data has 4th Amendment consequences. This has nothing to do with the program itself. When there is no evesdropping or actual surveillence, the courts have never ruled on 4th Amendment grounds of which I am aware. Perhaps you are.

    This argument is appallingly stupid.

    I’ve been accused of worse.

  78. Using my abacus I calculate a 20 year difference.

    Using my dictionary, I find a word “amended.” Oh, wait, no, it was in my comment.

    Let me point you to this article, particularly the section entitled FISA Applied to Secret Foreign Intelligence Physical Searches in 1994, (Counterintelligence and Security Enhancements Act of 1994, Public Law 103-359, Sec. 9)

    Now, you and your abacus were saying?

  79. CoolBlue:

    “To say they have no avenue with which to complain, is to indicate that you simply are unaware of it.”

    You know, when a Senator on the committee of which you speak writes to the Vice-President of the United States and says “Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities,” I feel both confident in saying that the “oversight” of which you speak is a joke, and I doubt there is an “avenue” in which the oversight could have been effectively performed. So in all I doubt my awareness is the issue here.

    “I was referring to the fact that no case law has ever found that the mere collection of data has 4th Amendment consequences.”

    Nice try, but this isn’t a “mere collection of data.” It’s collection of data which the telecommunications companies are not supposed to provide except under specific circumstances, none of which appeared to operative in this case. It appears the NSA and the telecommunication companies ignored the law in order to collect information on American citizens. I suspect there’s a decent amount of 4th Amendment case law to suggest government agencies circumventing law to gain information on citizens they have no cause to suspect of doing anything illegal is not something they are supposed to do.

  80. I thought Glenn Greenwald said it pretty well on his blog, http://glenngreenwald.blogspot.com/2006/05/no-need-for-congress-no-need-for.html

    “The legal and constitutional issues, especially at first glance and without doing research, reading cases, etc., are complicated and, in the first instance, difficult to assess, at least for me. That was also obviously true for Qwest’s lawyers, which is why they requested a court ruling and, when the administration refused, requested an advisory opinion from DoJ.”

    Which, as Greenwald points out, was also refused. No one at NSA wants any oversight. Period.

  81. Mildy off track, but I had to go look up “shibboleth”. Thats an extremely accurate term for quite a lot of political debate these days.

    I assume its always been such, but the propensity for people to join tribes and then dismiss anyone who isnt in theirs as a (leftist/facist/idiot/insert term here) sure makes honest debate difficult. I guess its easier to dismiss the other sides idea’s outright than honestly address them. Blah.

  82. All I can say to CoolBlue and Another Tim is HOLY SHIT! What is this the U.S.S.R? Are you guys former KGB trying to convince American’s to allow the government to turn the U.S. into a Soviet Republic?

    Somebody else kinda made the point regarding the bullshit arguement made that “If you’re not doing anything wrong, you have nothing to worry about” but I wanted to reiterate: No matter how pure as the driven snow you think you are, someone thinks you’re doing something wrong. This administration will not consult you on who should or shouldn’t be targeted. This is 1984 and people who can’t see that at this point are lost causes.

    John keeps reiterating his point that it isn’t about not letting the government do the spying it needs to do to track down terrorists, it’s about doing it within the realm of the law. Then someone argues essentially that he’s against catching terrorists. To which I say, get a clue. Start paying attention to what is being said and not just waiting for your turn to type.

  83. I want my right to privacy put explicitly into the constitution.

    That means I want the right to control what happens to my own body, to control what I do in the privacy of my own bedroom, to control what I do for my own recreation, to control what I say, who I say it to and how.

    This right ought to be limited so that I can’t use it to do terrible harm, but I don’t understand why politicians continue to propose freaking flag-burning amendments but not amendments that will protect my privacy.

  84. John,

    No offense, but you’re really misunderstanding how a modern telecommunications network functions. The days of “two phones, one dedicated copper line” are long past. Everything (phones, internet, what have you) now happens as electronic signals. This means that every communication includes addressing information wrapped around the actual data to be transmitted.

    If you say that the government has no inherent right to view — and in fact, a number of constitutional and legal protections against viewing — the data contained within the electronic packets, I’m right there with you. But to assert that the government has no right to view a collection of routing information around those data packets is akin to saying the government has no right to look at your high school yearbook because it contains your face. By using the phone, you automatically broadcast your contact and destination information in the same way that reflected light from your body reveals both to all viewers, including cameras, e.g., when you walk into a bookstore.

  85. gerrymander:

    “But to assert that the government has no right to view a collection of routing information around those data packets is akin to saying the government has no right to look at your high school yearbook because it contains your face.”

    Well, I didn’t say it gerrymander, Congress did — there are in fact laws forbidding that information being shared without a court order or other similar instrument. So that takes care of that.

    Look, as I’ve noted before, I don’t have a problem with this information being collected, as long as it is done within the confines of the law and with due respect to the privacy of US citizens. My problem with this little adventure of the NSA’s is that it doesn’t look like it was, nor that there was a serious attempt to do so. That is the problem.

  86. John Scalzi:

    You know, when a Senator on the committee of which you speak writes to the Vice-President of the United States and says “Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities,” I feel both confident in saying that the “oversight” of which you speak is a joke, and I doubt there is an “avenue” in which the oversight could have been effectively performed.

    I can’t believe that you stooped to quoting the Jay Rockefeller letter. A document that even the left characterized as mealy mouthed and cowardly. A document that was buried for 2 1/2 years before the coward had the temerity to wave it in front of the media cameras. This is what you site as an authority? Talk about lame over laaaammme. Now I’m reeeaalllly disappointed!

  87. gerrymander,

    You are the one who is misunderstand how a phone network works.

    Even without copper wires the phone information is not “broadcast.” “Broadcast” means to transmit for public or general use. Neither the conversations or the routing information are transmitted for public or general use. They are sent through specific frequencies and channels to specific receivers.

    In addition to misusing the term ‘broadcast’ you also misuse the term ‘right,’ at least in the legal sense.

    The Declaration of Independence declares that men have certain unalienable rights endowed by our Creator. Constitutional rights are “a power, privilege, immunity, or capacity the enjoyment of which is secured to a person by law.”

    Notice that it is people that have rights. Our government does not have rights. Our government has certain powers that are given to itby the people, but it has no inherent rights.

  88. Another Tim:

    Yes, god forbid I should cite someone who is actually on the intelligence committee to describe what is going on with the intelligence committee. He’s a rather more credible person regarding the situation than, say, you.

    As for the “coward” thing, I have no doubt that had he gone public with his complaints at the time, you or someone like you would be screaming he should resign (at the very least) for being a traitor for sharing classified information in public. So that comment leaves me less than impressed.

    If all you have left is eye-rolling, Another Tim, then you’re done now, and thanks for playing.

  89. Scalzi

    Well, I didn’t say it gerrymander, Congress did — there are in fact laws forbidding that information being shared without a court order or other similar instrument. So that takes care of that.

    The Supreme Court held in Smith v. Maryland (1978) that government collection of phone numbers called does not violate the Fourth Amendment. The Court reasoned that callers cannot have a “reasonable expectation of privacy” in the numbers they dial

    FYI

  90. John Scalzi:

    “If all you have left is eye-rolling, Another Tim, then you’re done now, and thanks for playing.”

    Your welcome.

  91. CoolBlue:

    “The Supreme Court held in Smith v. Maryland (1978) that government collection of phone numbers called does not violate the Fourth Amendment.”

    Okay, let’s go over this again, and this time I’ll type really slowly so it sinks in:

    The Stored Communications Act, Section 2703(c), provides exactly five exceptions that would permit a phone company to disclose to the government the list of calls to or from a subscriber: (i) a warrant; (ii) a court order; (iii) the customer’s consent; (iv) for telemarketing enforcement; or (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.

    So, in fact, there are laws forbidding that information being shared without a court order or similar instrument.

    Please do try to let this sink in.

    Aside from this, one does wonder what the impact of Kyllo v. United States (2001) would have on Smith v. Maryland regarding the advance of technology allowing unconstitutional encroachment on one’s privacy, particularly when combined with the fact of the existence of the Stored Communications Act, which explicitly requires a court order or something similar for the release of this information. Personally, I’m all for taking it to court and finding out.

  92. Scalzi

    So, in fact, there are laws forbidding that information being shared without a court order or similar instrument.

    Um, didn’t your quote say: (v) by “administrative subpoena.” The first four clearly don’t apply. As for administrative subpoenas, where a government agency asks for records without court approval, there is a simple answer – the NSA has no administrative subpoena authority, and it is the NSA that reportedly got the phone records.

    And what exactly do you think “administrative subpoena authority” means? And who do you think has “administrative subpoena authority”?

    Not the NSA, but

    The Justice Department does have such authority.

    In fact many executive branch departments have it including the Secret Service and the DEA.

  93. CoolBlue, you have a delightful way of bringing up factoids that are entirely irrelevant to the discussion at hand. Many departments of the government may have administrative subpoena authority but the NSA doesn’t. As it is the NSA who is performing this little act of data mining, this is a problem.

  94. Scalzi

    CoolBlue, you have a delightful way of bringing up factoids that are entirely irrelevant to the discussion at hand. Many departments of the government may have administrative subpoena authority but the NSA doesn’t. As it is the NSA who is performing this little act of data mining, this is a problem.

    Neither does the FBI have administrative subpoena authority, they go throught the Justice Department.

    Actually, the FBI may have it now. I remember during the discussion about the renewal of the Patriot Act, Bush had requested administrative subpoena authority for the FBI so they wouldn’t have to go through the Justice Department and I don’t remember how it turned out.

    But in any case, the NSA could request such through the DoJ in the same way.

  95. Could but apparently didn’t. There are lots of ways the NSA could have done this legally but apparently chose not to do any of them. So again, I’m not entirely sure what your point is.

  96. Oh, John. “That’s just about the stupidest argument for the abandonment of civil liberties I think I’ve ever read.”
    Except that you didn’t read it; you just assumed it. I never wrote anything that someone READING CAREFULLY could legitimately construe as an argument “for the abandonment of civil liberties”. I wrote that what people are hyperventilating about ISN’T TAKING PLACE. (The fellow who posted right after me illustrates this sort of Chicken Little reaction perfectly.) And I pointed out that only people who have an unrealistically exaggerated idea of their own importance in the world would assume that it does.
    Far be it from me to criticize somebody else’s comfort zone, but this program doesn’t bother my comfort zone a bit; certainly not as much as watching another major American building full of a couple thousand people come crashing down would.
    As others have pointed out at great length, the program is neither illegal nor unconstitutional. If you don’t like it, that’s what Congressmen are for–I’m sure operators are standing by to take your call.

  97. Scalzi

    Could but apparently didn’t. There are lots of ways the NSA could have done this legally but apparently chose not to do any of them. So again, I’m not entirely sure what your point is.

    Well my point is simply this, if the NSA intended to require the information that had legal avenues in which to operate. The fact that they didn’t, apparently, require cooperation takes us to another section of the SCA, specifically Section 2702(c) which deals with when these providers may disclose their information. Remember, 2703(c) deals with under what circumstances they may be compelled to disclose. So section 2702(c) says

    (1) as otherwise authorized in section 2703;
    (2) with the lawful consent of the customer or subscriber;
    (3) as may be necessarily incident to the rendition of the service or to the protection of the rights or property of the provider of that service;
    (4) to a governmental entity, if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information;

    So when you look at the last exception (bolded) you can see that the pieces fit into place. The NSA was not attempting to compel the companies to comply, which is why Quest was able to opt out. And the NSA was attempting to appeal to the companies based on an “immediate danger of death” argument which most companies bought but apparently, Quest didn’t.

    So when we look at the situation in light of 2702(c), the puzzle pieces fit.

    Now one may argue that the companies themselves were in violation of SCA, but you would be hard pressed to argue that the NSA did anything illegal.

    I would also point out that 2702(c) was changed with the reauthorization of the Patriot Act and exception 4. was changed to

    to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency

    You may note that the word “immediate” was struck from the statute.

  98. Tim of Angle:

    “I never wrote anything that someone READING CAREFULLY could legitimately construe as an argument ‘for the abandonment of civil liberties.'”

    No, I read it carefully enough. It’s still a monumentally stupid post, your after-the-fact attempt to bolster a rationale on to it notwithstanding. Perhaps you just wrote it poorly.

    Others wrote it’s not illegal or unconstitutional, but those other people could very well be wrong.

    CoolBlue:

    So, if I’m reading you correctly, your argument is that it was legal for the NSA to mine this data because they asked nicely rather than seeking a court order. If this is indeed your argument, allow me to suggest I find it deeply unpersuasive. However, I do agree that under any circumstance it was probably illegal for the telecommunications companies to provide that data. I do suspect nice fat class action suits are coming.

  99. John Scalzi

    So, if I’m reading you correctly, your argument is that it was legal for the NSA to mine this data because they asked nicely rather than seeking a court order. If this is indeed your argument, allow me to suggest I find it deeply unpersuasive.

    I’m just saying that accusations that it is a slamp dunk, no doubt about it, case that the NSA program is illegal is clearly something less than that.

    And it may very well take a court to sort it out.

    I am convinced that either way, the intention of the program is precisely what has been stated and not nefarious.

    However, I do agree that under any circumstance it was probably illegal for the telecommunications companies to provide that data. I do suspect nice fat class action suits are coming.

    Maybe. I surmise that the Qwest refusal was precisely because they felt that could be libel under the SCA as written.

    Others companies felt differently including Democrats in Congress which includes those on the Intelligence committee.

    But it is also true that you can pretty much get anyone to sue over anything so I suspect there will be suits.

    So we’ll see.

    But anyone prejudging the situation by saying it is definitly illegal, or obviously legal I think misjudge what they know.

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