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NSA Overstepped the Law On Wiretaps
Posted by
Soulskill
on Fri Apr 17, 2009 07:03 PM
from the can-i-hear-you-now dept.
from the can-i-hear-you-now dept.
Hugh Pickens writes "The NY Times reports that legal and operational problems surrounding the NSA's surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees, and a secret national security court, and that the NSA had been engaged in 'overcollection' of domestic communications of Americans. The practice has been described as significant and systemic, although one official said it was believed to have been unintentional. The Justice Department has acknowledged that there had been problems with the NSA surveillance operation, but said they had been resolved. The Office of the Director of National Intelligence, which oversees the intelligence community, did not address specific aspects of the surveillance problems, but said in a statement that 'when inadvertent mistakes are made, we take it very seriously and work immediately to correct them.' The intelligence officials said the problems had grown out of changes enacted by Congress last July to the law that regulates the government's wiretapping powers, as well as the challenges posed by enacting a new framework for collecting intelligence on terrorism and spying suspects. Joe Klein at Time Magazine says the bad news is that 'the NSA apparently has been overstepping the law,' but the good news is that 'one of the safeguards in the [FISA Reform] law is a review procedure that seems to have the ability to catch the NSA when it's overstepping — and that the illegal activities have been exposed, and quickly.'"
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Your Rights Online: NSA Ill-Suited For Domestic Cybersecurity Role 72 comments
Hugh Pickens writes "Former CIA counterterrorism analyst Stephen Lee has an interesting article in the Examiner asserting that the National Security Agency is 'a secretive, hidebound culture incapable of keeping up with innovation,' with a history of disregard for privacy and civil liberties. Lee says that for most of its sixty-year history, the NSA has been geared to cracking telecom and crypto gear produced by Soviet and Chinese design bureaus, but at the end of the cold war became 'stymied by new-generation Western-engineered telephone networks and mobile technologies that were then spreading like wildfire in the developing world and former Soviet satellite countries.' When the NSA finally recognized that it needed to get better at innovation, it launched several mega-projects, tagged like 'Trailblazer' and 'Groundbreaker,' that have been spectacular failures, costing US taxpayers billions. More recently, the NY Times reported that the NSA has been breaking rules set by the Obama administration to peer even more aggressively into American citizens' phone traffic and email inboxes. Whistleblower reports portray NSA domestic eavesdropping programs as unprofessional and poorly supervised, with intercept technicians ridiculing and mishandling recordings of citizens' private 'pillow talk' conversations. Lee concludes that 'if the Federal government must play a role, then Congress and President Obama should turn to another agency without a record of creating mistrust — perhaps even a new entity. Meanwhile, NSA should focus on listening in on America's enemies, instead of being an enemy of Americans and their enterprises.'"
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when I overstep the law (Score:5, Insightful)
Re:when I overstep the law (Score:5, Insightful)
Parent
Re: (Score:2, Insightful)
Re:when I overstep the law (Score:5, Insightful)
"Excuse me Mr. ISP, we need to get a tap on your network."
''Do you have a warrant?''
"Yes."
''May I see the warrant?''
"No, it's privileged."
''Ok, can you point me to a judge that authorized this?''
"No, it's privileged."
You don't see a problem with this? How about taken with the fact that law enforcement is legally allowed to lie in the course of their duties?
Parent
Re:when I overstep the law (Score:4, Informative)
Actually, it doesn't work that way. It's more like,
"Excuse me Mr. ISP, we need to get a tap on your network."
"Do you have a warrant?"
"We have the equivilent rm225 (whatever) form showing a proper warrant was issued and there is legal authority backing this action."
"May I see the warrant?"
"No, it's privileged. But for your records, this is a copy of the legal authorization we are serving you with. IF there are any questions, use the profile number in the corner."
"Ok, can you point me to a judge that authorized this?"
"No, it's privileged. but I can point you to a judge who will assure you that this legal authorization is legitimate. and you are required by law to comply with it. BTW talk to no one about this or who we are targeting."
When they serve a "secrete warrant", they don't leave you dumbfounded with a bunch of questions about if they were actually cops or whatever. They give you a writ saying they have the legal authority based on some law/order to do X or Y. You can't talk about them doing either except with your legal council or any employees who may need to assist but it needs to be confidential with them under the same gag orders.
Now the authorization papers will have enough information that can't be used to determine anything about the case or real warrant but enough information to associate the actions with the officers and for the appropriate clearance level employee to verify the situation without disclosing anything.
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Re:when I overstep the law (Score:4, Insightful)
What is treason? Do you even know what treason is in the US? Treason in the US consist of only in levying war against the US, or in adhering to their enemies, giving them aid and comfort, and nothing more. It's always a bad sign when someone starts off getting that basic principle wrong.
Please explain this for me. How is that possible? Or do you have some misconceived notion that wouldn't hold water with if it was at the bottom of the ocean.
Really? What decent thing is being destroyed? HMMM??? Cause I don't think you know your ass from a hole in a ground on this. Your out here trolling and making statements about others when it is clear your completely clueless. I'm betting your going to claim something like the constitution says X or the 4th amendment. Here is what you are missing. Probable cause and a warrant does not mean you need to be shown them. It means that a judge needs to be shown the probable cause and it's within reason. The warrant can be sealed and hidden from you, all you need to know is that the criteria has been met and that you are obligated to comply. There is nothing in the constitution that says you have to be shown the actual documents nor is there anything that states you have to be shown a warrant. A simple piece of paper in accordance with the law is sufficient as long as the cops/officers/agents/whoever stay within the limitations of the original warrant. And if you are the subject of the warrant as in the person they are searching, you don't even need to know of it until you are physically detained or being prosecuted. Nothing in the constitution says otherwise.
Please get a damn education on what your pretending to know about. It's idiots like you that make us dumasses look stupid. Anyways, be specific in what you think I got wrong, and I mean point to where you have whatever right you think I'm attempting to take from you or what exactly you think is so damn despicable. From your post so far, it seems that it's little more then your own ignorance.
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Re:when I overstep the law (Score:4, Informative)
I think the first thing you need to do is list what you think is wrong with the ideas then actually determine the legalities of it.
In the US, we work from the poisoned fruit doctrine (fruit of the poisonous tree) [wikipedia.org]. This means that any ill gotten information poisons any information stemming from that and as such, can't be used against you in a prosecution. So at least if you are doing something wrong and they break the law to catch you in this way, your not going to have a lot of evidence against you.
However, I think you and Darby are both wrong in what is required.
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Re:when I overstep the law (Score:4, Insightful)
He didn't ignore it; He pulled you up on your assertion that a "secret court" is a good idea by pointing out that if the court is secret then people influenced by it's decisions can't have justice. That's different from an open court (e.g. everybody knows about the court, how it works, how to question it and how to check if the court is responsible for a specific warrant) for secret decisions. Perhaps you meant something different when you said "secret court" but the only way for us to find out is to discuss the things we think you said, even if they aren't the things you meant to say.
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Re: (Score:3, Insightful)
I wind up in trouble. I hope the NSA does too
That's because you don't take it seriously. If you did, like the NSA does, you'd be fine.
Re: (Score:2)
Re:when I overstep the law (Score:5, Insightful)
When a parent tells a child to commit a crime there isn't really a point to punish the kid. The government asked them to do something. Even if it is illegal the boss of the country asked them. It would be silly for the boss to then punish the kid for doing as told.
Tell that to the German officers who were executed for crimes against humanity, despite pleading their innocence on exactly these grounds.
This plea has since become known as the Nuremberg Defence [wikipedia.org]. To my mind, it's no more compelling today than it was over 60 years ago, when we rejected it out of hand.
In order for a democracy to remain healthy, it requires the participation of its citizens. This means more than just occasionally visiting a polling station. It means that, from time to time, we will be asked to challenge, in very practical terms, the validity of the assumptions to which we all adhere.
I do not for a second believe that the NSA management and staff involved in this operation were not acutely aware that they were circumventing the law. If they knowingly broke the law, then they should be prepared to face the consequences.
Opposing the System usually comes with a price. I don't doubt that refusing to carry out orders would be a, uh, career-limiting decision. But those who willingly participate in an immoral, unethical and illegal system should face the consequences of their choice as well.
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Re: (Score:3, Insightful)
We keep hearing of scenarios like you've captured a terrorist who's planted a nuke in Manhattan, but you can't torture him because of some stupid rules.
I think if something like that ever *did* happen, someone who really wanted to go ahead and torture the guy would take the risk of a few years in prison. And if he *wasn't* prepared to take that risk, then maybe he wasn't really so sure the victim had really planted a nuke
Re:when I overstep the law (Score:5, Insightful)
It doesn't matter who asked them. Illegal is illegal. SOMEONE broke the law. Someone made the moral/ethical decision to break the law. That person was not a kid, and should be held accountable. Also, asking someone to break the law for you is conspiracy. The boss of the country should also be held accountable. It's about time we started throwing Presidents and Prime Ministers in jail.
Oh, and routers, cars, and tube carrying trucks do not have moral/ethical decision making capabilities. They cannot be held accountable for the actions of their users or abusers.
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They have been doing this for a long time (Score:5, Interesting)
Telephone switches have had specific features to support this type of activity since at least the 1980's. The only difference, now, is that these practices are seeing the light of day.
Re:They have been doing this for a long time (Score:5, Informative)
Perhaps to expand on what you are saying, because you are dead on accurate: GSM and many POTS telephone services use CCITT7, this comes with SANC, OPC, DPC, & ISPC codes (along with many others), these are all well established. The majority of countries that want to play nice with the rest of the world actually have to use these codes properly too. (Signalling systems are a complex business!) So what actually are these codes? They describe the geography of international telephone circuits. The phone companies latitude and longitude if you will, accurate to about the first digit. I did not say decimal place! :-) What can they be used for? Hypothetically speaking, one would feel confident in presuming these would be used by your local 3 letter agency to 'filter out the good guys' - that's about the only way I can figure it could be done practically anyway. Well, aside from I guess using the label written on some masking tape in sharpie at either end of the international fiber to figure out roughly who is using it. (Note: your good guys may not match my good guys, but that's a political thing)
Now obviously the diligent programer of this particular 'black box' would be inclined to put switches in to do this filtering based on these pretty little acronyms, thus allowing the owners of the 3 letter agency to legitimately talk about 'safeguards' and such. This is great, fantastic. Now, step in greedy middle level managers, directors, and politicians looking for that fast track up the ladder, or just in love with the whole "I can spy on your telephone call!!1!one!!" Rhetorical Question: You really think those switches are going to be in safe mode?
Parent
Obama administration (Score:5, Informative)
Isn't this the same Obama administration that recently defended warrantless wiretapping [slashdot.org]?
Re:Obama administration (Score:5, Informative)
Obama's administration has claimed that companies who wrongly cooperated with the government in the warrantless wiretapping program should not be open to lawsuits.
While I, and many others, may not agree with that stance, it does not mean that he's going to let the NSA do whatever the hell they want.
At least, not necessarily. We'll see if anything comes of this.
Parent
Re:Obama administration (Score:5, Insightful)
equally naive to think the president has any POWER over the 3letter orgs.
come on. you think a genie that powerful (the secret services, of which there are more than we can even know about) orgs will simply 'listen' to some guy who is here for what, 4 years?
they outlast presidents. our system is now ruled by a small group and those you see on TV are the figureheads.
this is not 18th century america. we have changed, radically, from what our actual roots were.
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Re:Obama administration (Score:5, Funny)
For the LAST TIME, C.O.N.T.R.O.L. is a fictitious organization. There IS no agent 86 and especially no agent 99.
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Re:Obama administration (Score:5, Insightful)
I think the difference here is what you'd call a dragnet. The Obama position (as I understood it) is that wiretapping individuals without a warrant is acceptable under certain circumstances. Gathering communication indiscriminately is different and objectionable.
Personally I like the way FISA was set up in 1978 and feel that 72 hours to obtain a retroactive warrant from a secret classified court is sufficient latitude for intelligence gathering in the "war on terror." Eliminating oversight by the judicial branch completely is totalitarian.
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Re:Obama administration (Score:5, Insightful)
You accept that? These things should strike terror in your bones and chill your very soul, yet you accept them?
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Re: (Score:3, Informative)
The Foreign Intelligence Surveillance Court is part of the judicial branch. Under the law from 1978, intelligence gatherers can apply for a warrant from this court the normal way, or they can do the wiretap without one and then they have 72 hours in which to obtain the warrant or else destroy whatever they have and also it's inadmissable. This is for surveillance where one party is a US person and the other party is known to be a foreign national.
On the contrary, the FISA amendments act from last year cha
Re: (Score:2)
It is, and it is the same Obama who has stated that CIA operatives who were using torture won't be facing any consequences.
So I strongly doubt that NSA will be in trouble now or ever.
Re:Obama administration (Score:4, Insightful)
Yup. A torture victim will tell his torturers anything!
For example, that 2+2=5.
Parent
Re: (Score:3, Funny)
Yup. A torture victim will tell his torturers anything!
For example, that 2+2=5.
There... Are... Four... Lights!
Wow, I totally didn't fuckin' expect that! (Score:4, Insightful)
I mean, wow. They violated the law the first time, and then after the law was changed to allow that, they did it again?
I mean, holy crap, who'da thunk?
Liberal Republicans (Score:2, Insightful)
Who bend the laws of freedom to fit their needs.
Bush was no conservative.
In sufficient incentives (Score:5, Insightful)
"When inadvertent mistakes are made, we take it very seriously and work immediately to correct them."
If such systemic negligence resulted in loss of employment, fines, and/or quality time in a federal PMITA prison, then perhaps they would take it seriously and make sure it didn't fucking happen in the first place.
Re:In sufficient incentives (Score:4, Insightful)
Come on now, when have draconian punishments ever stopped people from committing crimes, let alone making mistakes?
There should be punishments for messing up, and worse punishments for intentionally doing bad things, but you're kidding yourself if you think that the threat of jail time would stop this from happening.
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Re:In sufficient incentives (Score:5, Insightful)
Come on now, when have draconian punishments ever stopped people from committing crimes, let alone making mistakes?
The big difference is that most people commit crimes for their personal benefit.
These guys are commiting crimes under some bogus rubric of protecting the country.
At best their only personal benefit is a reduction of their own time spent on the project (for which they get paid for either way).
Parent
What? (Score:3, Insightful)
Re: (Score:3, Insightful)
And what we should be more interested in is this.... will we actually stop this, or put on a dog+pony show for the public and restart the same ops with new names, faces, and clearances.... Or just write new laws that you know the SCOTUS puppets won't deem unconstitutional because they are worthless and need to be publicly hung and eviscerated for corruption.
We've known this for a long time (Score:2, Insightful)
Okay, so what? What's to stop the next Bush/Cheney right wing douche-o-rama from doing the same thing? If there are no consequences, the next time they get a chance they'll do the same thing. We know we can't count on the FBI and NSA to police themselves, the Supreme Court is loaded with people who don't care about the Constitution, so NSA gets a slap on the wrist and new guidance. Big hairy deal. They'd do the same thing again if some sock puppet Attorney General told them it was okay.
Re:We've known this for a long time (Score:4, Insightful)
I think on this issue we can call it the current Bush/Cheney douche-o-rama. The administration announced yesterday recent that CIA personnel who relied on legal advice from the DOJ will not be investigated or prosecuted. This says that anything written by someone senior enough in DOJ will be carte blanch for torture. At least, that's the way I would read it if I had a mind to enable torture during my administration. The announcement did not mention what would happen to those giving the advice (Yoo, Addington, etc) or to the officials at the top (Rumsfeld, Cheney, etc.) However, the administration constantly says that they are not interested in looking backwards, only forwards.
Well, that's a relief. When will this kind of forgiveness come to the criminal justice system that the rest of us live in? I mean, crimes I committed in the past should stay in the past why dredge up all that evidence at taxpayer expense just to put me in prison? Or, in the words of Bob Loblaw, "why should you go to jail for a crime that someone else noticed?"
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Good thing the gov't is unaccountable (Score:5, Informative)
Re: (Score:2)
Someone has to ask: at this point are we really sure that the elected representatives are really in control?
Re:Good thing the gov't is unaccountable (Score:5, Insightful)
Parent
Re:Good thing the gov't is unaccountable (Score:4, Insightful)
It seems like given recent reports, that Obama is giving Bush-era government employees a free pass, but ordering the current administration to play by the rules. See his reversal of Bush torture policies, but unwillingness to persecute those who used those tactics.
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Newspeak framing (Score:4, Insightful)
Just one example of newspeak framing:
"The practice has been described as significant and systemic, although one official said it was believed to have been unintentional."
"one official" -- makes the following sound like an "official" statement without anyone putting their name on the line. Who is the official?
"said it was believed to be" -- implies that others agree and that this is the general belief. Governmentsprech for "some people say."
Just reading this frames the subject, even if you know the announcement is full of s***. And framing is 90% of the battle. (Google George Lakoff on that one)
Obama says "It's bad!" (Score:3, Interesting)
But you will notice that he didn't say it will stop!
We have secret laws and secret courts convicting you with secret evidence. Is there anyone here who STILL thinks we are doing the right thing?
Said it once, said it a thousand times... (Score:2)
Power granted is power abused.
This is what AP was talking about (Score:5, Insightful)
I wonder how much money NY Times paid for this story? $500k, $1m? So, remember, I will be modded down for this, but as you rail against the government for over-stomping our rights, this was the work of a paid Journalist or paid Team of Journalists who used their Journalism Major to bring home a paltry paycheck (well, paltry for those of us in the IT or engineering industry).
Stories like these make me hope that the newspaper industry finds a way to make money, because reporting like this takes money, but in a rare move by Big Content, that charged money benefits us all. (Unlike the latest Britney Spears release or Hollywood Movie).
Re: (Score:3, Interesting)
Paying for news is like torturing for information -- the only thing you're left with at the end of the day is a pile of suspect agenda-laden chatter.
I prefer to get my news the old fashioned way, from grass-roots advocates and disaffected whisleblowers.
Re:This is what AP was talking about (Score:4, Insightful)
Er, no? There was no investigative journalism involved in this story. The Obama administration investigated the NSA. How do we know? From the press release. This is release regurgitation journalism, nothing more, and blogs are more than capable of that.
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Re: (Score:2)
Highly appropriate nic for that response.
"unintentional"? (Score:2)
...and the pope is unintentionally catholic and bears unintentionally poo in woods.
Ok, I just have to snipe. (Score:5, Informative)
The practice has been described as significant and systemic, although one official said it was believed to have been unintentional.
My 10 year old daughter uses that excuse. 'I didn't mean to throw cookie dough at my friend.
'For 10 minutes.'
Joe Klein at Time Magazine says the bad news is that 'the NSA apparently has been overstepping the law,' but the good news is that 'one of the safeguards in the [FISA Reform] law is a review procedure that seems to have the ability to catch the NSA when it's overstepping -- and that the illegal activities have been exposed, and quickly.'"
Yeah, quickly. They were exposed almost 5 years [1] [salon.com] ago. An entire term of office for the US chief executive, for those of you keeping score. The FISA Reform act was not required to expose the activity. It was required to stop the activity. Maybe Time Magazine doesn't remember history very well, but we do. And we prefer not to implicitly lie with our choice of verb.
Nor do we believe for a moment that the activity actually was stopped. Secret (kangaroo) courts and secret meetings and the utterly worthless assurances of the US Justice Department. Of course it's still on-going. I don't even have to wear a tin-foil hat to proclaim that. I don't sound the least bit nutty, saying that, because even major media reported the story, in detail, for months, and nobody cared.
You think they're going to stop now? Of course they're not. Nobody was shot for treason when they endorsed a program that raped the US Constitution. Nobody was sent to jail when they designed a spying program that raped the US Constitution. Nobody lost their job when they implemented a surveillance program that raped the US Constitution. Nobody had their pay docked for listening to the phone calls of random citizens. Nobody got their knuckles rapped with a ruler for reading the email of random citizens. No, instead, they got condemned in the press. Oooooooo. The horror.
They got away with it. Completely and utterly and totally. So why would they stop? When there are no negative consequences whatsoever, there's no reason at all to stop.
The saddest part of all is that it can not be stopped. If Congress chose to do something about it, the members who led the effort would be pilloried as partisan and would lose reelection. Daring to stand on principle would result in losing their job, because that's what the voters think is right.
Oh my people...
I wouldn't care if I could trust them (Score:5, Informative)
No sysadmin would buy that story... (Score:3, Interesting)
I dunno 'bout you, but when I accidentally turn logging on some high-volume task, I usually find out about it pretty quickly when /var/log fills up.
Now, while I doubt that the high-volume task the NSA was monitoring -- like, oh, let's say all voice and data communications in the US -- went to /var/log, the fact is that when most folks build out storage for data collection, it tends to be built in proportion to the amount of data to be collected, plus some moderate wiggle room for unexpected overages. Exactly how much wiggle room you allocate depends, of course, on how big you think a plausible overage is, but since cost is a factor, even for -- or so I presume -- organizations with black budgets, you don't build out multiple petabytes to hold a couple of gigs worth of data, for example.
So if the NSA was really only intending to capture a few, carefully targeted communications, you'd think someone would have noticed very quickly if they'd accidentally recorded more than they'd intended. For fucking years.
I'm not sure what's worse: the original crime, lying about it, or this gross insult to the intelligence of everyone listening to their transparent fictions.
Re:Quit making up rights. (Score:5, Informative)
When were U.S. citizens given rights to privacy over a public infrastructure such as phone lines
Katz vs. United States [wikipedia.org], which established that private telephone calls are protected by the Fourth Amendment.
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