Obama and Wiretapping

rhadamanthus · Jun 23, 2011

Northside Storm said: ↑

yeah, we all know the American government has a stirring record with FISA.
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Or another noted "COIN" program during the 60s.

rhadamanthus · Jun 23, 2011

Quite simply, the most glaring and horrendous failure of the Obama administration.

The Obama DOJ's effort to force New York Times investigative journalist Jim Risen to testify in a whistleblower prosecution and reveal his source is really remarkable and revealing in several ways; it should be receiving much more attention than it is. On its own, the whistleblower prosecution and accompanying targeting of Risen are pernicious, but more importantly, it underscores the menacing attempt by the Obama administration -- as Risen yesterday pointed out -- to threaten and intimidate whistleblowers, journalists and activists who meaningfully challenge what the government does in secret.

The subpoena to Risen was originally issued but then abandoned by the Bush administration, and then revitalized by Obama lawyers. It is part of the prosecution of Jeffrey Sterling, a former CIA agent whom the DOJ accuses of leaking to Risen the story of a severely botched agency plot -- from 11 years ago -- to infiltrate Iran's nuclear program, a story Risen wrote about six years after the fact in his 2006 best-selling book, State of War. The DOJ wants to force Risen to testify under oath about whether Sterling was his source.

Like any good reporter would, Risen is categorically refusing to testify and, if it comes to that (meaning if the court orders him to testify), he appears prepared to go to prison in defense of press freedoms and to protect his source (just as some young WikiLeaks supporters are courageously prepared to do rather than cooperate with the Obama DOJ's repellent persecution of the whistleblowing site). Yesterday, Risen filed a Motion asking the Court to quash the government's subpoena on the ground that it violates the First Amendment's free press guarantee, and as part of the Motion, filed a lengthy Affidavit that is amazing in several respects.

During the Bush years, Risen was one of the few investigative journalists exposing the excesses and lawbreaking that was the War on Terror -- causing him to be literally hated by officials of the National Security State. Along with Eric Lichtblau, Risen most famously revealed, in 2005, that the NSA was secretly spying on Americans without warrants which -- as he put it in his Affidavit -- "in all likelihood, violated the law and the United States Constitution." In 2006, he revealed that the Bush administration had been obtaining huge amounts of financial and banking information about American citizens from the SWIFT system, all without oversight or Congressional authorization. And here's how he summarized the multiple revelations in State of War, the book for which the Obama DOJ is now seeking to force him to reveal his source upon pain of imprisonment:

State of War included explosive revelations about a series of illegal or potentially illegal actions taken by President Bush, including the domestic wiretapping program. It also disclosed how President Bush secretly pressured the CIA to use torture on detainees in secret prisons around the world; how the White House and CIA leadership ignored information before the 2003 invasion of Iraq that showed that Iraq did not have weapons of mass destruction; documented how, in the aftermath of the invasion, the Bush Administration punished CIA professionals who warned that the war in Iraq was going badly; showed how the Bush Administration turned a blind eye to Saudi involvement in terrorism; and revealed that the CIA's intelligence operations on weapons of mass destruction in Iraq, Iran and other countries were completely dysfunctional, and even reckless.

(To understand the function of the American media and American political culture: please re-read that paragraph -- describing revelations of pervasive lawbreaking and corruption at the highest levels of government from one reporter in one book -- and compare the media's indifferent and/or supportive treatment of that revealed conduct to the orgy of intense, obsessive condemnation directed at Anthony Weiner; or compare how the perpetrators of that conduct revealed by Risen are treated with great respect to the universal scorn heaped on Weiner).

Particularly because of the NSA revelation, Risen was despised by Bush officials and was the target of a right-wing hate campaign (including suggestions -- from administration officials and prominent others -- that he be prosecuted for espionage). Risen compiles ample evidence in his Affidavit to argue that the Subpoena issued to him in the Sterling case was a by-product of the administration's efforts to harm him; he writes: "the administration was embarrassed by the disclosures I made in the course of my reporting for State of War as well as in The New York Times, and eventually singled me out as a target for political harassment." Indeed, Risen argues -- persuasively -- that the investigation to unmask his source, and the prosecution of Sterling itself, is little more than a means of punishing him for his reporting and for intimidating similar disclosures in the future:

I believe that the investigation that led to this prosecution started because of my reporting on the National Security Agency's warrantless wiretapping program. The Bush White House was furious over that story. I believe that this investigation started as part of an effort by the Bush Administration to punish me and silence me, following the publication of the NSA wiretapping story. I was told by a reliable source that Vice President Dick Cheney pressured the Justice Department to personally target me because he was unhappy with my reporting and wanted to see me in jail.
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As it has in so many other instances, the Obama administration appears on the verge of fulfilling Dick Cheney's nefarious wish beyond what even Cheney could achieve.

* * * * * *

There are two aspects to Risen's Affidavit which merit particular attention. First, Risen cites a 2006 ABC News report from Brian Ross and others that claimed the Bush administration was, without warrants, spying on the communications of reporters (including Ross) in order to discover the identity of their sources. I personally never attached much credence to that story because of how unreliable I find Brian Ross to be, but in his Affidavit, Risen states (under oath) that he "has reason to believe that the story . . . is true" because he "learned from an individual who testified before a grand jury in this District that was examining my reporting about the domestic wiretapping program that the Government had shown this individual copies of telephone records relating to calls made to and from me."

The fact that Bush officials were spying on reporters is extraordinary. Instead of pursuing Cheneyite vendettas by persecuting whistleblowers who exposed newsworthy ineptitude from long-irrelevant CIA plots, the Obama DOJ ought to be investigating that allegation; that it isn't and wouldn't speaks volumes.

Second, Risen links the Obama administration's pursuit of the Sterling case and of Risen to the current President's broader (and unprecedented) war on whistleblowers and investigative journalism. He writes:

[I believe that the efforts to target me have continued under the Obama Administration, which has been aggressively investigating whistleblowers and reporters in a way that will have a chilling effect on the freedom of the press in the United States.]
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What's particularly striking about this prosecution is that it involves digging deep into the ancient past (the Iran operation in question was begun under the Clinton administration): this from a President who insisted that Bush officials not be investigated for their crimes on the ground that we must "Look Forward, Not Backward." But it's not hard to see why Obama officials are so intent on doing so: few things are more effective in creating a Climate of Fear -- one that deters investigation and disclosure and stifles the exercise of basic rights -- than prosecuting prominent people for having challenged and undermined the government's agenda. As Risen documents, that -- plainly -- is what this prosecution and the Obama administration's broader anti-whistleblower war is about: chilling the exercise of basic rights and the ability to challenge government actions.

* * * * *

While there is no good faith claim that Risen's revelation six years after the fact harmed U.S. national security, Risen's story was unquestionably newsworthy because it revealed how inept and ignorant American intelligence agencies are when it comes to Iran. Indeed, Risen claims vindication for his story "given subsequent reports about the unreliability of our intelligence about Iran's nuclear capabilities and about our government's tendency to overstate the threat in a way that is not entirely consistent with the intelligence actually gathered."

That Iran is developing nuclear weapons is one of the Obama administration's most cherished orthodoxies. Anything that challenges that is attacked. Recall how cowardly Obama officials ran to Politico to anonymously malign Seymour Hersh's recent New Yorker piece arguing that there is little credible evidence of Iran's nuclear activities. As Risen says: "Whether one agrees with Mr. Hersh's article or not, it is clear that, five years after I wrote State of War, there is still a serious national debate about Iran's nuclear ambitions and about whether the current administration has incentives to exaggerate intelligence related to this topic."

What the Obama administration is doing, above all else, is bolstering the Climate of Fear that prevents any challenges to its pronouncements of this sort. I wrote about that joint White-House/Politico attack on Hersh to mock the gross hypocrisy of criticizing Hersh for his use of anonymous sources in the very same article where Politico granted anonymity to Obama officials to attack him; but the more substantive point is that of course Hersh has to use anonymous sources. In the Climate of Fear being deliberately fortified by the Obama administration, what person in their right mind would openly challenge their national security decrees on classified matters or call their veracity into question? As the Sterling/Risen case and numerous others have intentionally conveyed: imprisonment is the likely outcome for those who do that.

* * * * *

This Climate of Fear is being strengthened by more than just whistleblowing prosecutions and the targeting of journalists. So many Obama policies are devoted to its fortification.

Today in The New York Times, former NYT reporter David Shipler chronicles the multiple ways the current President, in conjunction with Congress and the Supreme Court, have intensified the decades-long assault on the Fourth Amendment's guarantee against unreasonable searches and seizures: "The Obama administration petitioned the Supreme Court to allow GPS tracking of vehicles without judicial permission. The Supreme Court ruled that the police could break into a house without a search warrant if, after knocking and announcing themselves, they heard what sounded like evidence being destroyed. Then it refused to see a Fourth Amendment violation where a citizen was jailed for 16 days on the false pretext that he was being held as a material witness to a crime. Congress renewed Patriot Act provisions on enhanced surveillance powers until 2015, and the F.B.I. expanded agents' authority to comb databases, follow people and rummage through their trash even if they are not suspected of a crime." In his last paragraph, Shipler describes why this matters so much:

The Fourth Amendment is weaker than it was 50 years ago, and this should worry everyone. "Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government," Justice Robert H. Jackson, the former chief United States prosecutor at the Nuremberg trials, wrote in 1949. "Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart."
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Beyond the numerous actions described by Shipler, the Obama adminstration has pursued multiple actions perfectly described by that passage, certain to achieve that very outcome. It has continuously harassed numerous WikiLeaks supporters, repeatedly detaining them at airports and seizing and copying their laptops, all without warrants, and subpoeaned their social networking records. It is seeking (and is likely to obtain) dramatically expanded domestic surveillance powers, physically and over the Internet. It has seized the power to target American citizens for assassination without a whiff of due process. It succeeded in convincing the Supreme Court to declare that one can "materially support Terrorism" -- a felony -- merely by talking to, or advocating on behalf of, designated Terrorist groups. In one of the most important stories I haven't written about (but should have), it has invasively investigated and threatened with prosecution a slew of domestic peace activists and those sympathetic to the Palestinian cause. And now the precedent has been bolstered that the prime circumstance that fuels and justifies all of these powers -- war -- can be unilaterally commenced by the President for any reason, for any length of time, without a pretense of democratic consent.

For someone who has no real interest in challenging government claims or undermining official actions, these policies will have no direct, perceptible effect. It's always true that those who are supportive of institutions of authority or who otherwise have no interest in challenging them are never targeted by measures of this sort; why would they be? That's why supporters of all Presidents -- Republicans during the Bush years and now Democratic loyalists under Obama -- are rarely disturbed by such developments.

Along with the apathetic, who by definition pose no threat to anyone, prominent cheerleaders for the President and his party, who labor every day to keep them in power, are the last ones who will be subjected to such programs. Obviously, nobody in the Obama administration is monitoring the phone calls at the Center for American Progress or ones placed to the large stable of columnists, bloggers and TV stars who daily spout White House talking points or devote each day to attacking the President's political opponents. That's why purported civil liberties concerns manifest only when the other party is in power, but vanish when their own is. Partisan loyalists are indifferent to their leader's ability to deter dissent; if anything, they're happy that their party's leader wields such power and can use it against political adversaries.

But for anyone who is engaged in meaningful dissent from and challenge to government officials -- the Jim Risens and other real investigative reporters, the Thomas Drakes and other whistleblowers, the WikiLeaks supporters, the Midwest peace activists -- these prosecutions and these ever-expanding surveillance, detention and even assassination powers are inevitably intimidating. Regardless of how those powers are used or even whether they are, they will, as Risen put it, have "a chilling effect" on the exercise of core freedoms. As Risen explained in his Affidavit, even if Brian Ross' story turned out to be false, the mere claim by anonymous officials that the phone records of journalists are being monitored -- combined with threats of prison for their sources and even for reporters who are subpoenaed -- means "the Government further contributed to creating an atmosphere of fear for journalists who publish stories about national security and intelligence issues."

The most odious aspect of this Climate of Fear is that it fundamentally changes how the citizenry thinks of itself and its relationship to the Government. A state can offer all the theoretical guarantees of freedom in the world, but those become meaningless if citizens are afraid to exercise them. In that climate, the Government need not even act to abridge rights; a fearful populace will voluntarily refrain on its own from exercising those rights.

Nobody wants to believe that they have been put in a state of fear, that they are intimidated, so rationalizations are often contrived: I don't perceive any violations of my rights because there's nothing I want to do that I'm not able to do. Inducing a fearful population to refrain from exercising rights -- as it convinces itself no such thing is happening -- is a far more effective, and far more pernicious, means of suppressing freedoms. That's what a Climate of Fear uniquely enables. The vast National Security and Surveillance State has for decades been compiling powers -- and eroding safeguards and checks -- devoted to the strengthening of this climate, and the past two-and-a-half years have seen as rapid and concerted intensification as any other period one can recall. Read Jim Risen's Affidavit if you doubt that.
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rhadamanthus · Jul 1, 2011

Federal and State Wiretaps on the rise in 2010

While their over-use is controversial federal and state requests for court permission to intercept or wiretap electronic communications increased 34% in 2010 over 2009 with California, New York, and New Jersey accounting for 68% of all wire taps approved by state judges.

According to the 2010 Wiretap Report, released today by the Administrative Office of the United States Courts (AOUSC) the most frequently noted location in wiretap requests was "portable device," a category that includes cellular telephones and digital pagers. In 2010, a total of 96% of all authorized wiretaps were designated as portable devices. The most common surveillance method was wire surveillance that used a telephone - land line, cellular, cordless or mobile. Telephone wiretaps accounted for 97% (2,253 cases) of the intercepts installed in 2010, the majority of which were cell telephones.

According to the report, 84% of all applications for intercepts (2,675 wiretaps) in 2010 cited illegal drugs as the most serious offense under investigation. As of Dec. 31, 2010, a total of 4,711 people had been arrested and 800 had been convicted as a result of all interceptions reported as terminated.
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More at the link.

wnes · Jul 1, 2011

Thanks to wiretapping on his accuser, DSK may now be a freeman? (well, he is a frenchman after all)

FranchiseBlade · Jul 1, 2011

wnes said: ↑

Thanks to wiretapping on his accuser, DSK may now be a freeman? (well, he is a frenchman after all)
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I believe it's more thanks to the wholes in the maid's story, and the fact that she has a history of reporting false stories.

CrazyDave · Jul 1, 2011

rhadamanthus said: ↑

Federal and State Wiretaps on the rise in 2010

::citing reasons that have nothing to do with foreign threats or terrorism:::

More at the link.
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I thought that the egregious breach of the constitutional rights was supposed to be a function of counterterrorism efforts and mainly to involve those who were not American citizens or had ties to suspects in other countries? Well, ok, I didn't believe that, but that's what they told us as they were wiping their backsides with the basis of our democracy and freedom.

::basking in the safety of our new wired overlords::

thadeus · Jul 1, 2011

FranchiseBlade said: ↑

I believe it's more thanks to the wholes in the maid's story, and the fact that she has a history of reporting false stories.
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DSK is a very rich and powerful man. His money will determine reality in this case... anything can be fabricated.

pgabriel · Jul 2, 2011

CrazyDave said: ↑

I thought that the egregious breach of the constitutional rights was supposed to be a function of counterterrorism efforts and mainly to involve those who were not American citizens or had ties to suspects in other countries? Well, ok, I didn't believe that, but that's what they told us as they were wiping their backsides with the basis of our democracy and freedom.

::basking in the safety of our new wired overlords::
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this is why i criticized rhad for continuously bumping this thread with any story. these are court requested wire taps, is the gov't supposed to stop crime fighting all of a sudden under obama?

pgabriel · Jul 2, 2011

thadeus said: ↑

DSK is a very rich and powerful man. His money will determine reality in this case... anything can be fabricated.
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dsk was a rich and powerful man who was dragged off a plane and paraded in front of camaras on his way to court over a rape charge. i don't think anyone can argue he received special treatment.

don't be like that, you lose crediability when you respond the same way to every topic.

thadeus · Jul 2, 2011

pgabriel said: ↑

dsk was a rich and powerful man who was dragged off a plane and paraded in front of camaras on his way to court over a rape charge. i don't think anyone can argue he received special treatment.

don't be like that, you lose crediability when you respond the same way to every topic.
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He's a flashpoint between two groups of powerful people (and possibly more). He was perp-walked because one group made that happen, but that's all they needed to happen. Now that the public humiliation and the damages to his possible presidential run (in France) are over, there's really no need for him to do prison time. So, he can now use his own influence to free himself.

p.s. "losing credibility" isn't really a concern of mine. The fact is, the majority of issues debated in this forum are reducible to the fact that the flow of capital tends to congeal in a small percentage of people of the world (really, at this point, "nations" are an afterthought) - and those people live in a world with a different moral code and different set of perspectives than the rest of us. They are only marginally affected by the laws, ethics, and lifestyles that we cannot escape from. So yes, I bring it up frequently - but that's because it's the originating source behind much of what we discuss. We're a bunch of relatively powerless people who spend a great deal of time gossiping about (what we perceive as) the rise and fall of powerful people - as if we have ANYTHING in common with these people, as if we have ANYTHING to do with their world. We are, at best, simply passive observers passing judgment on a world that cares nothing about our judgments.

Invisible Fan · Jul 2, 2011

Quite ironic since the ones at the top are so terrified and insecure of us and what we'll do that they'll erode our privacy and civil liberties to keep us in check in the name of our safety.

rhadamanthus said: ↑

Quite simply, the most glaring and horrendous failure of the Obama administration.
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As long as a politician doesn't "touch our guns" they can shred up everything else in the Bill of Rights.

rhadamanthus · Jul 26, 2011

No prison time for Drake.

Judge Richard D. Bennett of the Federal District Court praised the former National Security Agency official, Thomas A. Drake, for his exemplary record of public service before giving him a mild scolding for improperly providing information on alleged agency mismanagement to The Baltimore Sun.

But Judge Bennett reserved his strongest condemnation for the Justice Department, saying the two and a half years that elapsed between the search of Mr. Drake’s home and his indictment in 2010 was far too long.

The visibly angry judge said that Mr. Drake had been through “four years of hell” and that the dragging out of the investigation — and then the dropping of the major charges on the eve of trial — was “unconscionable.”
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thadeus · Jul 26, 2011

rhadamanthus said: ↑

No prison time for Drake.
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It's a shame it took so long. Hopefully Obama's anti-democractic and ongoing prosecution of other whistleblowers will be ended by clear-headed parties soon.

rhadamanthus · Jul 29, 2011

Cute. While the country and most of congress is distracted by the debt ceiling silliness, a group of senators is meeting secretly to discuss extending the FISA amendments that allow warrantless wiretapping before the 2012 expiration date.

We were just reporting on how Director of National Intelligence James Clapper was tap dancing around some specific questions about how much warrantless spying on Americans US federal intelligence agencies do. Much of that discussion revolved around the controversial FISA Amendments Act (recursively called the FAA) of 2008, which you may recall as the law that both made warrantless wiretapping officially legal (despite the fact that the federal government had been doing it for years under a very questionable legal theory) and granted telecom companies retroactive immunity for having helped the feds get such wiretaps despite the lack of warrants (and, in some cases, nothing more than a post-it note asking for it).

The FAA is set to expire in 2012, but, as we've seen with any law that grants the federal government more power to spy on Americans without oversight, there is no way the folks in power want to give up such things. Now come reports that, while most of Congress is focused on that whole debt ceiling thing, some have decided this is the perfect cover to quickly and secretly re-up the FAA. It's been reported that the Senate Select Committee on Intelligence is likely meeting behind closed doors today in an effort (by some) to re-up the FAA now, before anyone even realizes it's being debated. The last thing they want is pesky civil libertarians to re-start the discussion about the general constitutionality of spying on Americans without a warrant (believing in the 4th Amendment is sooooo old fashioned).

In trying to hunt down more details about what's going on, we found out that Senators Wyden and Udall -- who, as we've been discussing, have been trying to stop the federal government from secretly interpreting these laws in ways that seem contrary to what most believe the laws say -- are trying to add an amendment to this attempt to reauthorize the FAA. It's difficult to see how anyone can, in good conscience, vote against this. It includes such basic truths as:

In democratic societies, citizens rightly expect that their government will not arbitrarily keep information secret from the public but instead will act with secrecy only in certain limited circumstances.
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The amendment specifically says that the Attorney General and the Director of National Intelligence would need to explain "the problems posed by the reliance of government agencies and departments on interpretations of domestic surveillance authorities that are inconsistent with the understanding of such authorities by the public."

Who could possibly vote against that?

Well, tragically, since this supposed meeting is "closed" (though not classified), the Senators get to hide from view for a while. It's one of those arcane Senate rules that are all too often used to allow Senators to avoid public scrutiny for their actions. While no members of the public or press are allowed in the room, and those in the room cannot tell what anyone else says (or votes) in the room... since it's not classified the Senators who are in the room can absolutely say what they said or did in the room. The specific votes on this particular amendment will be made public three weeks after the markup occurs, buying anyone voting against it three weeks of cover (and when the votes come out, they can pretend this is "old news"). The amendment itself is not secret or classified. Senators cannot reasonably claim that they can't say how they voted for "national security" reasons (a popular cop out) because their votes are going to be made public. The only reason to not answer the question of how they voted is because they want to avoid scrutiny.

So... if your Senator happens to be on the Senate Intelligence Committee now would be the time to call, email, tweet, fax, carrier pigeon, etc. to ask them whether they voted to let Americans know how the government is secretly interpreting its own laws... or if they voted against your basic fundamental rights to know how the government interprets its own laws. The list of Senators on the Committee are as follows:

Dianne Feinstein, California (chair)
Saxby Chambliss, Georgia (vice chair)
John D. Rockefeller IV, West Virginia
Olympia J. Snowe, Maine
Ron Wyden, Oregon
Richard Burr, North Carolina
Barbara A. Mikulski, Maryland
James Risch, Idaho
Bill Nelson, Florida
Daniel Coats, Indiana
Kent Conrad, North Dakota
Roy Blunt, Missouri
Mark Udall, Colorado
Marco Rubio, Florida
Mark Warner, Virginia

If any of these Senators represent you, please reach out to them as soon as possible to ask them how they voted on the amendment embedded below, and please report back to us with what you hear. Let's not let certain Senators allow the government to make up its own rules and not tell the American public what those rules are.
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rhadamanthus · Aug 10, 2011

A recent FOI request (that only took 11 months to get a response from -sheesh) indicates the Obama DOJ used the "emergency" warrantless wiretap provision to spy on ISP data 400% more than Bush (2008 vs 2009).

http://j.mp/mRrdi5

rhadamanthus · Sep 22, 2011

ACLU lawsuit survives second circuit panel review and will go forward (albeit it may be reviewed again by the Supreme Court).

In the process of reporting this, Greenwald absolutely skewers Dennis Jacobs, the Chief Judge.

It's long, but a very good read on the attitudes and ideologies our burgeoning corporate-political plutocracy have embraced - even in the courtrooms specifically designed to protect the people from such malfeasance.

rhadamanthus · Oct 10, 2011

Obama DOJ uses shady technique to acquire internet activists' email without a warrant. And for somewhat dubious reasons.

The U.S. government has obtained a controversial type of secret court order to force Google Inc. and small Internet provider Sonic.net Inc. to turn over information from the email accounts of WikiLeaks volunteer Jacob Appelbaum, according to documents reviewed by The Wall Street Journal.

Sonic said it fought the government's order and lost, and was forced to turn over information. Challenging the order was "rather expensive, but we felt it was the right thing to do," said Sonic's chief executive, Dane Jasper. The government's request included the email addresses of people Mr. Appelbaum corresponded with the past two years, but not the full emails.
Both Google and Sonic pressed for the right to inform Mr. Appelbaum of the secret court orders, according to people familiar with the investigation. Google declined to comment. Mr. Appelbaum, 28 years old, hasn't been charged with wrongdoing.
The court clashes in the WikiLeaks case provide a rare public window into the growing debate over a federal law that lets the government secretly obtain information from people's email and cellphones without a search warrant. Several court decisions have questioned whether the law, the Electronic Communications Privacy Act, violates the U.S. Constitution's Fourth Amendment protections against unreasonable searches and seizures.
WikiLeaks is a publisher of documents that people can submit anonymously. After WikiLeaks released a trove of classified government diplomatic cables last year, U.S. Attorney General Eric Holder said the U.S. was pursuing an "active criminal investigation" of WikiLeaks.

Passed in 1986, the Electronic Communications Privacy Act is older than the World Wide Web, which was dreamed up in 1989. A coalition of technology companies—including Google, Microsoft Corp. and AT&T Corp.—is lobbying Congress to update the law to require search warrants in more digital investigations.

The law was designed to give the same protections to electronic communications that were already in place for phone calls and regular mail. But it didn't envision a time when cellphones transmitted locations and people stored important documents on remote services, such as Gmail, rather than on their own computers.
Law enforcement uses the law to obtain some emails, cellphone-location records and other digital documents without getting a search warrant or showing probable cause that a crime has been committed. Instead the law sets a lower bar: The government must show only "reasonable grounds" that the records would be "relevant and material" to an investigation.
As a result, it can be easier for law-enforcement officers to see a person's email information than it is to see their postal mail.
Another significant difference: A person whose email is inspected this way often never knows a search was conducted. That's because court orders under the 1986 law are almost always sealed, and the Internet provider is generally prohibited from notifying the customer whose data is searched. By contrast, search warrants are generally delivered to people whose property is being searched.
The secrecy makes it difficult to determine how often such court orders are used. Anecdotal data suggest that digital searches are becoming common.
In 2009, Google began disclosing the volume of requests for user data it received from the U.S. government. In the six months ending Dec. 31, Google said it received 4,601 requests and complied with 94% of them. The data include all types of requests, including search warrants, subpoenas and requests under the 1986 law.
At a Senate hearing in April on whether the 1986 law needs updating, Associate Deputy Attorney General James A. Baker cautioned Congress "that raising the standard for obtaining information under ECPA may substantially slow criminal and national security investigations."
In May, the ECPA's author, U.S. Sen. Patrick Leahy (D., Vt.), said the original law is "significantly outdated and outpaced by rapid changes in technology." He introduced a bill adopting many of the recommendations of the technology coalition lobbying for changes to the law.
Some federal courts have questioned the law's constitutionality. In a landmark case in December, the U.S. Court of Appeals for the Sixth Circuit ruled that the government violated the Fourth Amendment when it obtained 27,000 emails without a search warrant.

"The police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call—unless they get a warrant," Judge Danny Boggs wrote in the 98-page opinion. "It only stands to reason that, if government agents compel an [Internet service provider] to surrender the contents of a subscriber's emails, those agents have thereby conducted a Fourth Amendment search."
In August, the U.S. District Court of the Eastern District of New York over-ruled a government request to obtain cellphone location records without a warrant, calling it "Orwellian." Judge Nicholas Garaufis wrote: "It is time that the courts begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine." The government has appealed.
The WikiLeaks case became a test bed for the law's interpretation earlier this year when Twitter fought a court order to turn over records from the accounts of WikiLeaks supporters including Mr. Appelbaum.
Mr. Applebaum is a developer for the Tor Project Inc., a Walpole, Mass., nonprofit that provides free tools that help people maintain their anonymity online. Tor's tools are often used by people living in countries where Internet traffic is monitored by the government. Tor obtains some of its funding from the U.S. government.
Mr. Appelbaum has also volunteered for WikiLeaks, which recommends people use Tor's tools to protect their identities when submitting documents to its website. In April 2010, Mr. Appelbaum's involvement in WikiLeaks was inadvertently disclosed publicly in a blog post on the website of the Committee to Protect Journalists. The reporter, Danny O'Brien, said Mr. Appelbaum had thought he was speaking anonymously. Mr. O'Brien said he later offered to remove Mr. Appelbaum's name from the post.

After the blog post appeared, Mr. Appelbaum became a public advocate for WikiLeaks. In June, he gave a speech at a Northern California technology camp where he called WikiLeaks founder Julian Assange one of the "biggest inspirations in my life."
On Dec. 14, the U.S. Department of Justice obtained a court order for information from the Twitter account of people including Mr. Appelbaum and WikiLeaks supporters Birgitta Jonsdottir, a member of the Icelandic parliament, and Rop Gonggrijp, a Dutch computer programmer. Neither has been charged with wrongdoing.
The order sought the "Internet protocol," or IP, addresses of the devices from which people logged into their accounts. An IP address is a unique number assigned to a device connected to the Internet.
The order also sought the email addresses of the people with whom those accounts communicated. The order was filed under seal, but Twitter successfully won from the court the right to notify the subscribers whose information was sought.
On Jan. 26, attorneys for Mr. Appelbaum, Mr. Gonggrijp and Ms. Jonsdottir jointly filed a motion to vacate the court order. They argued, among other things, that because IP addresses can be used to locate a person in "specific geographic destinations," it constituted a search under the Fourth Amendment and thus required a warrant.
The government argued that IP addresses don't reveal precise location and are more akin to phone numbers. At a Feb. 15 hearing, Assistant U.S. Attorney John S. Davis said, "this is a standard… investigative measure that is used in criminal investigations every day of the year all over this country."
On March 11, U.S. Magistrate Judge Theresa Carroll Buchanan denied the WikiLeaks supporters' motion. They have appealed.
Twitter hasn't turned over information from the accounts of Mr. Appelbaum, Ms. Jonsdottir and Mr. Gonggrijp, according to people familiar with the investigation.
The court orders reviewed by the Journal seek the same type of information that Twitter was asked to turn over. The secret Google order is dated Jan. 4 and directs the search giant to hand over the IP address from which Mr. Appelbaum logged into his gmail.com account and the email and IP addresses of the users with whom he communicated dating back to Nov. 1, 2009. It isn't clear whether Google fought the order or turned over documents.
The secret Sonic order is dated April 15 and directs Sonic to turn over the same type of information from Mr. Appelbaum's email account dating back to Nov. 1, 2009.
On Aug. 31, the court agreed to lift the seal on the Sonic order to provide Mr. Appelbaum a copy of it. Sonic Chief Executive Mr. Jasper said the company also sought to unseal the rest of its legal filings but that request "came back virtually entirely denied."
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rhadamanthus · Oct 12, 2011

Well, this surprised me:

NY Times Sues the Government to Reveal How it Expects the Company to Comply with a Section of the Patriot Act

We've been covering for a while now how Senators Ron Wyden and Mark Udall have been very concerned over the secret interpretation the feds have of one piece of the PATRIOT Act. They've been trying to pressure the government into publicly explaining how they interpret the law, because they believe that it directly contrasts how most of the public (and many elected officials) believe the feds are interpreting the law. While the two Senators continue to put pressure on the feds and to hint at the feds' interpretation, just the fact that the government won't even explain its own interpretation of the law seems ridiculous.

Given all of this, reporter Charlie Savage of the NY Times filed a Freedom of Information Act request to find out the federal government's interpretation of its own law... and had it refused. According to the federal government, its own interpretation of the law is classified. What sort of democracy are we living in when the government can refuse to even say how it's interpreting its own law? That's not democracy at all.

Julian Sanchez points us to the news that Savage and the NY Times have now sued the federal government for not revealing its interpretation of the PATRIOT Act, pointing out that if parts of the interpretation contain classified material, the Justice Department should black that out and reveal the rest, but simply refusing to reveal the interpretation entirely is a violation of the Freedom of Information Act. You can bet that the feds will do everything they can to get out of this lawsuit, just as they did with the various lawsuits concerning warrantless wiretapping. Here's hoping the court systems don't let them. No matter what you think of this administration (or the last one) and how it's handling the threat of terrorism, I'm curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it's required to operate.
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Ron Wyden and Mark Udall have an amendment to the PATRIOT Act that makes it clear the Obama Administration briefed the Intelligence Committees in February on an intelligence collection program, conducted under PATRIOT authority, that interprets the language of the law so broadly as to mean something it really doesn’t say. The amendment reads, in part,

(6) United States Government officials should not secretly reinterpret public laws and statutes in a manner that is inconsistent with the public’s understanding of these laws, and should not describe the execution of these laws in a way that misinforms or misleads the public;

(7) On February 2, 2011, the congressional intelligence committees received a secret report from the Attorney General and the Director of National Intelligence that has been publicly described as pertaining to intelligence collection authorities that are subject to expiration under section 224 of the USA PATRIOT Act (Public Law 107–56; 115 Stat. 295); and

(8) while it is entirely appropriate for particular intelligence collection techniques to be kept secret, the laws that authorize such techniques, and the United States Government’s official interpretation of these laws, should not be kept secret but should instead be transparent to the public, so that these laws can be the subject of informed public debate and consideration.

(b) REPORT.—Not later than 60 days after the date of the enactment of this Act, the Attorney General shall publish in the Federal Register a report—

(1) that details the legal basis for the intelligence collection activities described in the February 2, 2011, report to the congressional intelligence committees; and

(2) that does not describe specific intelligence collection programs or activities, but that fully describes the legal interpretations and analysis necessary to understand the United States Government’s official interpretation of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
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In short, Eric Holder and James Clapper came to SSCI on February 2 and told the committee about a way the government was broadly interpreting FISA and the powers expiring next Monday.

This Amendment would require Holder to admit to what the government was doing, in broad terms, without revealing what kind of surveillance was going on.

This probably pertains to the Section 215 authorities; we know they’re using it to construct databases of people who buy hydrogen peroxide and acetone. But I would bet there’s a more generalized collection program that results in more databases they can mine. A very good guess would be using geolocation data from cell phones to collect information on the whereabouts of Americans.

Don’t you think the time to press for such admissions is before this **** gets re-upped for another four years?

Update: Apparently this isn’t even among the amendments Reid is pulling parliamentary maneuvers to avoid even discussing. So I guess this is just an effort to wave a flag saying, “PATRIOT isn’t what it says it is?”
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rhadamanthus · Dec 1, 2011

A long piece from Greenwald...

Excerpts:

A bill co-sponsored by Democratic Sen. Carl Levin and GOP Sen. John McCain — included in the pending defense authorization bill — is predictably on its way to passage. It is triggering substantial alarm in many circles, including from the ACLU – and rightly so. But there are also many misconceptions about it that have been circulating that should be clarified, including a possible White House veto. Here are the bill’s three most important provisions:

(1) mandates that all accused Terrorists be indefinitely imprisoned by the military rather than in the civilian court system; it also unquestionably permits (but does not mandate) that even U.S. citizens on U.S. soil accused of Terrorism be held by the military rather than charged in the civilian court system (Sec. 1032);

(2) renews the 2001 Authorization to Use Military Force (AUMF) with more expansive language: to allow force (and military detention) against not only those who perpetrated the 9/11 attacks and countries which harbored them, but also anyone who “substantially supports” Al Qaeda, the Taliban or “associated forces” (Sec. 1031); and,

(3) imposes new restrictions on the U.S. Government’s ability to transfer detainees out of Guantanamo (Secs. 1033-35).

There are several very revealing aspects to all of this. First, the 9/11 attack happened more than a decade ago; Osama bin Laden is dead; the U.S. Government claims it has killed virtually all of Al Qaeda’s leadership and the group is “operationally ineffective” in the Afghan-Pakistan region; and many commentators insisted that these developments would mean that the War on Terror would finally begin to recede. And yet here we have the Congress, on a fully bipartisan basis, acting not only to re-affirm the war but to expand it even further: by formally declaring that the entire world (including the U.S.) is a battlefield and the war will essentially go on forever.

Indeed, it seems clear that they are doing this precisely out of fear that the justifications they have long given for the War no longer exist and there is therefore a risk Americans will clamor for its end. This is Congress declaring: the War is more vibrant than ever and must be expanded further. For our political class and the private-sector that owns it, the War on Terror — Endless War — is an addiction: it is not a means to an end but the end itself (indeed, 2/3 of these war addicts in the Senate just rejected Rand Paul’s bill to repeal the 2003 Iraq AUMF even as they insist that the Iraq War has ended). This is the war-hungry U.S. Congress acting preemptively to ensure that there is no sense in the citizenry that the War on Terror — and especially all of the vast new powers it spawned — can start to wind down, let alone be reversed.

Second, consider how typically bipartisan this all is. The Senate just voted 37-61 against an amendment, sponsored by Democratic Sen. Mark Udall, that would have stripped the Levin/McCain section from the bill: in other words, Levin/McCain garnered one more vote than the 60 needed to stave off a filibuster. Every GOP Senator (except Rand Paul and Mark Kirk) voted against the Udall amendment, while just enough Democrats – 16 in total — joined the GOP to ensure passage of Levin/McCain. That includes such progressive stalwarts as Debbie Stabenow, Sheldon Whitehouse, Jeanne Shaheen and its lead sponsor, Carl Levin.

I’ve described this little scam before as “Villain Rotation”: “They always have a handful of Democratic Senators announce that they will be the ones to deviate this time from the ostensible party position and impede success, but the designated Villain constantly shifts, so the Party itself can claim it supports these measures while an always-changing handful of their members invariably prevent it.” This has happened with countless votes that are supposed manifestations of right-wing radicalism but that pass because an always-changer roster of Democrats ensure they have the support needed. So here is the Democratic Party — led by its senior progressive National Security expert, Carl Levin, and joined by just enough of its members — joining the GOP to ensure that this bill passes, and that the U.S. Government remains vested with War on Terror powers and even expands that war in some critical respects.

Third, I haven’t written about this bill until now for one reason: as odious and definitively radical as the powers are which this bill endorses, it doesn’t actually change the status quo all that much. That’s because the Bush and Obama administrations have already successfully claimed most of the powers in the bill, and courts have largely acquiesced. To be sure, there are dangers to having Congress formally codify these powers. But a powerful sign of how degraded our political culture has become is that this bill — which in any other time would be shockingly extremist — actually fits right in with who we are as a nation and what our political institutions are already doing. To be perfectly honest, I just couldn’t get myself worked up over a bill that, with some exceptions, does little more than formally recognize and codify what our Government is already doing.
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The Levin/McCain bill would require that all accused Terrorists be held in military detention and not be charged in a civilian court — including those apprehended on U.S. soil — with two caveats: (1) it exempts U.S. citizens and legal residents from this mandate, for whom military detention would still be optional (i.e., in the discretion of the Executive Branch); and (2) it allows the Executive Branch to issue a waiver if it wants to charge an accused Terrorist in the civilian system.

One of the nation’s most stalwart war cheerleaders and one of the bill’s most vocal proponents, Sen. Lindsey Graham, made clear what the provision’s intent is: “If you’re an American citizen and you betray your country, you’re not going to be given a lawyer . . . I believe our military should be deeply involved in fighting these guys at home or abroad.” As Graham made chillingly clear, one key effect of the provision is that the U.S. military — rather than domestic law enforcement agencies — will be used to apprehend and imprison accused Terrorists on American soil, including U.S. citizens.

In doing so, Graham and the bill he supports — exactly like all those who supported Obama’s due-process-free assassination of Anwar Awlaki – have apparently decided simply to dispense with Article 3, Section 3 of the Constitution, which provides that nobody can be punished for treason without heightened due process requirements being met. In that regard, compare (a) Graham’s pronouncement (widely shared by those supporting Awlaki’s assassination) that “if you’re an American citizen and you betray your country, you’re not going to be given a lawyer” to (b) the Constitutional requirement in Art. III, Sec. 3 that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” To deny a citizen the right to a lawyer and go to court on the ground that they’ve “betrayed their country” and thus deserve to be imprisoned without a trial (or, worse, to be assassinated without one) is as violent a betrayal of the U.S. Constitution as one can imagine, literally.
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Much more at the link. This is...the end, I think.

thadeus · Dec 1, 2011

****ing bull****.

Democracy isn't working. I want a candidate who I actually believe would make a good president. Not just one who isn't as bad as the other guy.

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