Obama and Wiretapping

Steve_Francis_rules · Apr 1, 2010

rhadamanthus said:

A sudden attack of common sense. I'm loving this.

I cannot say it enough: HELL. YES.

The 40 billion dollar question: WHERE ARE THE CRIMINAL CHARGES??!!?!?!
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This is great news. Thanks for posting.

dachuda86 · Apr 2, 2010

giddyup said:

I just want to hold this out as a possibility: maybe transparency is a naive idea that is dangerous to this republic... and you only would really understand it until you are at that place where the buck stops.
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maybe the tooth fairy comes at night to deliver change to a five-year-old's brain.

The oh trust us excuse isn't good enough.

rhadamanthus · Jul 29, 2010

Oh thanks Obama.

White House proposal would ease FBI access to records of Internet activity

The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual's Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.

The administration wants to add just four words -- "electronic communication transactional records" -- to a list of items that the law says the FBI may demand without a judge's approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user's browser history. It does not include, the lawyers hasten to point out, the "content" of e-mail or other Internet communication.

But what officials portray as a technical clarification designed to remedy a legal ambiguity strikes industry lawyers and privacy advocates as an expansion of the power the government wields through so-called national security letters. These missives, which can be issued by an FBI field office on its own authority, require the recipient to provide the requested information and to keep the request secret. They are the mechanism the government would use to obtain the electronic records.

Stewart A. Baker, a former senior Bush administration Homeland Security official, said the proposed change would broaden the bureau's authority. "It'll be faster and easier to get the data," said Baker, who practices national security and surveillance law. "And for some Internet providers, it'll mean giving a lot more information to the FBI in response to an NSL."

Many Internet service providers have resisted the government's demands to turn over electronic records, arguing that surveillance law as written does not allow them to do so, industry lawyers say. One senior administration government official, who would discuss the proposed change only on condition of anonymity, countered that "most" Internet or e-mail providers do turn over such data.

To critics, the move is another example of an administration retreating from campaign pledges to enhance civil liberties in relation to national security. The proposal is "incredibly bold, given the amount of electronic data the government is already getting," said Michelle Richardson, American Civil Liberties Union legislative counsel.

The critics say its effect would be to greatly expand the amount and type of personal data the government can obtain without a court order. "You're bringing a big category of data -- records reflecting who someone is communicating with in the digital world, Web browsing history and potentially location information -- outside of judicial review," said Michael Sussmann, a Justice Department lawyer under President Bill Clinton who now represents Internet and other firms.
Privacy concerns

The use of the national security letters to obtain personal data on Americans has prompted concern. The Justice Department issued 192,500 national security letters from 2003 to 2006, according to a 2008 inspector general report, which did not indicate how many were demands for Internet records. A 2007 IG report found numerous possible violations of FBI regulations, including the issuance of NSLs without having an approved investigation to justify the request. In two cases, the report found, agents used NSLs to request content information "not permitted by the [surveillance] statute."

One issue with both the proposal and the current law is that the phrase "electronic communication transactional records" is not defined anywhere in statute. "Our biggest concern is that an expanded NSL power might be used to obtain Internet search queries and Web histories detailing every Web site visited and every file downloaded," said Kevin Bankston, a senior staff attorney with the Electronic Frontier Foundation, which has sued AT&T for assisting the Bush administration's warrantless surveillance program.

He said he does not object to the government obtaining access to electronic records, provided it has a judge's approval.

Senior administration officials said the proposal was prompted by a desire to overcome concerns and resistance from Internet and other companies that the existing statute did not allow them to provide such data without a court-approved order. "The statute as written causes confusion and the potential for unnecessary litigation," Justice Department spokesman Dean Boyd said. "This clarification will not allow the government to obtain or collect new categories of information, but it seeks to clarify what Congress intended when the statute was amended in 1993."

The administration has asked Congress to amend the statute, the Electronic Communications Privacy Act, in the fiscal year that begins in October.

Administration officials noted that the act specifies in one clause that Internet and other companies have a duty to provide electronic communication transactional records to the FBI in response to a national security letter.

But the next clause specifies only four categories of basic subscriber data that the FBI may seek: name, address, length of service and toll billing records. There is no reference to electronic communication transactional records.
Same as phone records?

The officials said the transactional information at issue, which does not include Internet search queries, is the functional equivalent of telephone toll billing records, which the FBI can obtain without court authorization. Learning the e-mail addresses to which an Internet user sends messages, they said, is no different than obtaining a list of numbers called by a telephone user.

Obtaining such records with an NSL, as opposed to a court order, "allows us to intercede in plots earlier than we would if our hands were tied and we were unable to get this data in a way that was quick and efficient," the senior administration official said.

But the value of such data is the reason a court should approve its disclosure, said Greg Nojeim, senior counsel at the Center for Democracy and Technology. "It's much more sensitive than the other information, like name, address and telephone number, that the FBI gets with national security letters," he said. "It shows associational information protected by the First Amendment and is much less public than things like where you live."

A Nov. 5, 2008, opinion from the Justice Department's Office of Legal Counsel, whose opinions are binding on the executive branch, made clear that the four categories of basic subscriber information the FBI may obtain with an NSL were "exhaustive."

This opinion, said Sussmann, the former Clinton administration lawyer, caused many companies to reevaluate the scope of what could be provided in response to an NSL. "The OLC opinion removed the ambiguity," he said. "Providers now are limited to the four corners of what the opinion says they can give out. Those who give more do so at their own risk."

Marc Zwillinger, an attorney for Internet companies, said some providers are not giving the FBI more than the four categories specified. He added that with the rise of social networking, the government's move could open a significant amount of Internet activity to government surveillance without judicial authorization. "A Facebook friend request -- is that like a phone call or an e-mail? Is that something they would sweep in under an NSL? They certainly aren't getting that now."
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FranchiseBlade · Jul 29, 2010

This crap is just awful. I had really hoped there would be a stop to this kind of activity if not a reversal.

We need to protect our rights, and the govt. is stripping them away with this kind of stuff.

justtxyank · Jul 29, 2010

FranchiseBlade said:

This crap is just awful. I had really hoped there would be a stop to this kind of activity if not a reversal.

We need to protect our rights, and the govt. is stripping them away with this kind of stuff.
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It only gets worse as time goes on. This is why I get mad when people laugh at me when I use the slipper slope argument. Every president is going to take it another step.

pgabriel · Jul 29, 2010

I wouldn't say its taking it another step, its expanding a definition, asking for phone records or internet records is no different.

Keep in mind i'm not supportive of this overall. the issue isn't the records or types of records, its that the FBI has the ability to go around the courts to get them.

rhadamanthus · Jul 29, 2010

The craziest thing about this is that here we have a legitimate case to ream Obama about, and the troglodyte "conservative" tv personalities won't touch it with a 10-foot pole. Does this surprise anyone given the context?

Pgabs, your defense here is admirable, but Obama is basically ignoring a good part of his own campaign slogan.

For one thing, under an Obama presidency, Americans will be able to leave behind the era of George W. Bush, Dick Cheney and "wiretaps without warrants," he said. (He was referring to the lingering legal fallout over reports that the National Security Agency scooped up Americans' phone and Internet activities without court orders, ostensibly to monitor terrorist plots, in the years after the September 11 attacks.)

It's hardly a new stance for Obama, who has made similar statements in previous campaign speeches, but mention of the issue in a stump speech, alongside more frequently discussed topics like Iraq and education, may give some clue to his priorities.
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link

Space Ghost · Jul 29, 2010

justtxyank said:

It only gets worse as time goes on. This is why I get mad when people laugh at me when I use the slipper slope argument. Every president is going to take it another step.
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The difference is how big of a step that president takes. Yes, we certainly need reform in many realms of this country, but making change for the sake of change is regression, especially when it is all being crammed in less than 2 years.

rocketsjudoka · Jul 29, 2010

pgabriel said:

I wouldn't say its taking it another step, its expanding a definition, asking for phone records or internet records is no different.

Keep in mind i'm not supportive of this overall. the issue isn't the records or types of records, its that the FBI has the ability to go around the courts to get them.
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Reading the article I would need to see some more about what info the FBI is getting hold of with NSL's. The article sites four pieces of information (name, email address, length of service, and toll billing records. To me that doesn't sound much different than what they can obtain from phone records without a court order. This just sounds like they are extending it into the email realm. While this is an expansion of surveillance powers I'm not sure how alarming this is at the moment.

rhadamanthus · Aug 2, 2010

Most accurate cartoon ever:

rhadamanthus · Aug 12, 2010

Inspiring and saddening read.

‘John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years

The owner of an internet service provider who mounted a high-profile court challenge to a secret FBI records demand has finally been partially released from a 6-year-old gag order that forced him to keep his role in the case a secret from even his closest friends and family. He can now identify himself and discuss the case, although he still can’t reveal what information the FBI sought.

Nicholas Merrill, 37, was president of New York-based Calyx Internet Access when he received a so-called “national security letter” from the FBI in February 2004 demanding records of one of his customers and filed a lawsuit to challenge it. His company was a combination ISP and security consultancy business that was launched in the mid-90s and had about 200 customers, Merrill said, many of them advertising agencies and non-profit groups.

Despite the fact that the FBI later dropped its demand for the records, Merrill was prohibited from telling his fiancée, friends or family members that he had received the letter or that he was embroiled in a lawsuit challenging its legitimacy. He occasionally showed up for court hearings about the case, but sat silently in the audience with other court observers. In 2007, he was prevented from publicly accepting an award for his courage from the American Civil Liberties Union, because he was not allowed to identify himself as the plaintiff in the case.

U.S. District Judge Victor Marrero in New York finally released Merrill partially from the gag order (.pdf) on July 30, which Merrill revealed publicly only on Monday.

“After six long years of not being able to tell anyone at all what happened to me – not even my family – I’m grateful to finally be able to talk about my experience of being served with a national security letter,” Merrill said in a statement. “Internet users do not give up their privacy rights when they log on, and the FBI should not have the power to secretly demand that ISPs turn over constitutionally protected information about their users without a court order. I hope my successful challenge to the FBI’s NSL gag power will empower others who may have received NSLs to speak out.”

A national security letter is an informal administrative letter the FBI can use to secretly demand customer records from ISPs, financial institutions, libraries, insurance companies, travel agencies, stockbrokers, car dealerships and others. NSLs have been used since the 1980s, but the Patriot Act, passed after the September 11, 2001 terrorist attacks, and a subsequent revision in 2003 expanded the kinds of records that could be obtained with an NSL.

With an NSL, the FBI does not need to seek a court order to obtain such records, nor does it need to prove just cause. An FBI field agent simply needs to draft an NSL stating the information being sought is “relevant” to a national security investigation.

The letters come with a life-long gag order, so businesses that receive such letters are prohibited from revealing to anyone, including customers who may be under investigation, that the government has requested records of transactions. Violation of a gag order can be punishable by up to five years in prison.

The gag orders raise the possibility for extensive abuse of NSLs, under the cover of secrecy. Indeed, in 2007, a Justice Department Inspector General audit found that the FBI, which issued almost 200,000 NSLs between 2003 and 2006, had abused its authority and misused NSLs.

In Merrill’s case, although the letter’s gag order “was totally clear that they were saying that I couldn’t speak to a lawyer” about it, he immediately contacted his personal attorney, and together they went to the ACLU in New York, which agreed to represent him.

“My gut feeling is I’m an American,” Merrill said, in an interview with Threat Level on Tuesday. “I always have a right to an attorney. There’s no such thing as you can’t talk to your attorney.

“I kind of felt at the beginning, so few people challenge this thing, I couldn’t just stand by and see, in my opinion, the basic underpinnings of our government undermined,” he continued. “I was taught about how sophisticated our system of checks and balances is . . . and if you really believe in that, then the idea of one branch of government just demanding records without being checked and balanced by the judicial just is so obviously wrong on the surface.”

Merrill and the ACLU filed the lawsuit under the name “John Doe,” challenging the legality of the letter and asserting that customer records were constitutionally protected information. Merrill said the NSL, which listed 16 categories of records, including e-mail and billing records, was “very broad.”

“It was kind of open ended,” he said. “It went through a list of things and then said ‘and anything else.’ The implication was just send us everything and the kitchen sink.”

Merrill wouldn’t say how many records he had that were relevant to the request but said in general, “In the most broad understanding of what is electronic communication transaction records, I probably had like thousands and thousands of records on each client, if you consider that you host things and you’re using software that creates log files. . . . ISPs have a lot of records on every client typically. They may have records of every time you posted something, of every web site you visited.”

Over the years the case progressed, Merrill was careful not to disclose his identity. At one point he attended a packed hearing — filled with law school students and media — but he was careful not to speak with anyone.

Friends began to question whether he was John Doe when he was publicly identified with a second case involving a grand jury subpoena from the Secret Service for customer records related to the news site IndyMedia. In that case, no gag order was imposed. Merrill said he was forced to lie when asked about John Doe or simply refused to answer.

“It put me in a very difficult position,” he said.

In 2007, the ACLU granted “John Doe” a liberty award, along with four Connecticut librarians who also filed a legal challenge over NSLs. Because of the gag order against Merrill, the ACLU had to present his award to an empty chair.

In December 2008, the Second Circuit Court of Appeals ruled that some of the NSL gag provisions were unconstitutional, in part because they limited judicial review of the gag orders and forced courts to defer to the government’s assertions about the necessity of a gag order and also thwarted the ability of recipients to challenge a gag order. The case was sent back to the U.S. District Court for the Southern District of New York, forcing the government to justify the constitutionality of the gag order imposed on Merrill.

In June 2009, the government introduced secret evidence to the court to justify continuing the gag order, claiming that if information were revealed about the letter it would harm an ongoing investigation. Merrill and his attorneys were prevented from learning the specifics of the evidence in order to refute it. The government was then ordered by the court to produce an unclassified summary of its evidence.

The ACLU worked hard to negotiate a partial gag-lift with the government that allowed Merrill to finally identify himself, while still keeping the details of the letter secret. In return, Merrill and the ACLU agreed to drop their appeal of the case.

Although the case helped expose the secrecy around NSLs and resulted in some First Amendment progress for entities receiving such requests — Congress amended the law to allow recipients to challenge NSLs and gag orders, and the FBI must now also prove in court that disclosure of an NSL would harm a national security case — the fight over NSLs is not over. The Obama administration has been seeking to expand the FBI’s power to demand internet activity records of customers without court approval or suspicion of wrongdoing. If granted, the data sought without a court order could expand to include web browser and search history, and Facebook friend requests.

“Even though this case has resulted in significant improvements to NSL procedures, innocent Americans’ private records remain too vulnerable to secret and warrantless data collection by the FBI,” said Melissa Goodman, staff attorney with the ACLU National Security Project in a statement. “At a minimum, the FBI should have to show individual suspicion before it issues an NSL for an individual’s personal information and invades Americans’ right to privacy and free speech on the Internet.”

The FBI’s use of national security letters to get information on Americans without a court order increased from 16,804 in 2007 to 24,744 in 2008. The 2008 requests targeted 7,225 U.S. people.

In the 2007 inspector general’s report, investigators found that the FBI had failed to adequately justify some letters, had evaded limits on (and sometimes illegally issued) NSLs to obtain phone, e-mail and financial information on American citizens, and had under-reported the use of NSLs to Congress.

About 60 percent of a sample of the FBI’s NSLs did not conform to Justice Department rules, and another 22 percent possibly violated the statute because they made improper requests of businesses or involved unauthorized collections of information.

Subsequently, the number of NSLs issued in 2007 dramatically dropped from 49,000 to 16,000, but has rebounded in recent years.

Merrill’s experience with the case has prompted him to launch a non-profit, the Calyx Institute, aimed at educating the technology and telecommunications industry and developing best practices and tools for safeguarding the privacy of customers.

“I feel there’s a lot of work to be done,” he said. “The case has made me realize that just one or two people standing up can have a great effect. I either want to inspire others to follow the example . . . or develop technology that makes it more difficult for people to be snooped on.
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rhadamanthus · Sep 27, 2010

Obama's civil liberties stance is already a joke, but here are some new updates. I guess at least this is vaguely better since it's being done via legislation instead of illegal means, but some of these are very disconcerting.

WASHINGTON – Broad new regulations being drafted by the Obama administration would make it easier for law enforcement and national security officials to eavesdrop on Internet and e-mail communications like social networking Web sites and BlackBerries, The New York Times reported Monday.

The newspaper said the White House plans to submit a bill next year that would require all online services that enable communications to be technically equipped to comply with a wiretap order. That would include providers of encrypted e-mail, such as BlackBerry, networking sites like Facebook and direct communication services like Skype.

Federal law enforcement and national security officials say new the regulations are needed because terrorists and criminals are increasingly giving up their phones to communicate online.

"We're talking about lawfully authorized intercepts," said FBI lawyer Valerie E. Caproni. "We're not talking about expanding authority. We're talking about preserving our ability to execute our existing authority in order to protect the public safety and national security."

The White House plans to submit the proposed legislation to Congress next year.

The new regulations would raise new questions about protecting people's privacy while balancing national security concerns.

James Dempsey, the vice president of the Center for Democracy and Technology, an Internet policy group, said the new regulations would have "huge implications."

"They basically want to turn back the clock and make Internet services function the way that the telephone system used to function," he told the Times.

The Times said the Obama proposal would likely include several requires:

_Any service that provides encrypted messages must be capable of unscrambling them.

_Any foreign communications providers that do business in the U.S. would have to have an office in the United States that's capable of providing intercepts.

_Software developers of peer-to-peer communications services would be required to redesign their products to allow interception.

The Times said that some privacy and technology advocates say the regulations would create weaknesses in the technology that hackers could more easily exploit.
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Deckard · Sep 27, 2010

Those of us hoping that we were helping to elect a liberal President have been disappointed, at least those paying attention. Better than Junior before him? Absolutely, but Obama has proven to be a moderate progressive, a centrist on many issues, and even conservative on some. In short, all over the map. I have to say I'm not crazy about it. The saving grace for me is that he's still a hundred times better than Bush, but that's a pretty low bar.

Steve_Francis_rules · Sep 27, 2010

Deckard said:

Those of us hoping that we were helping to elect a liberal President have been disappointed, at least those paying attention. Better than Junior before him? Absolutely, but Obama has proven to be a moderate progressive, a centrist on many issues, and even conservative on some. In short, all over the map. I have to say I'm not crazy about it. The saving grace for me is that he's still a hundred times better than Bush, but that's a pretty low bar.
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He's also a hell of a lot better than McCain would have been. Maybe Hillary Clinton would have been better.

rhadamanthus · Sep 27, 2010

Steve_Francis_rules said:

Maybe Hillary Clinton would have been better.
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It's possible, although I never would have thought that during the campaign.

Major · Sep 27, 2010

rhadamanthus said:

Obama's civil liberties stance is already a joke, but here are some new updates. I guess at least this is vaguely better since it's being done via legislation instead of illegal means, but some of these are very disconcerting.
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The other stuff you've posted here on this topic is very disappointing and can't really be defended. This one, though, I think is actually not really bad. Its sort of like if you had a law for horse carriages to have seat belts, and then cars got invented - you'd want to update the laws to require that cars have seatbelts.

If we've decided that it's legitimate government policy to get a warrant to listen into a phone conversation, and phone conversations are being replaced by email conversations, it seems that it would be smart to update that regulation to include email. If phones are required to be "tappable", it makes sense for email to be "tappable" and that's all this one seems to do.

Now, I think there are questions about the feasibility of it all and whether the regulations makes sense - I think there are serious problems there, especially with the idea that any communications provider that does business in the US must have an office here. But on the pure privacy / ideology side of it, I don't think this one is a big issue compared to the expanding powers without warrants and the like.

rhadamanthus · Sep 27, 2010

Major said:

The other stuff you've posted here on this topic is very disappointing and can't really be defended. This one, though, I think is actually not really bad. Its sort of like if you had a law for horse carriages to have seat belts, and then cars got invented - you'd want to update the laws to require that cars have seatbelts.
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Caveat: Updating the laws, while theoretically prudent, only makes the current illegal activity more powerful, i.e., if this law is passed, illegal wiretaps would be able to circumvent encryption. I, for one, don't like the idea of giving a President capable of murder the means to read my communications, no matter how benign.

(Might be wise to install PGP if you want to maintain some semblance of privacy in your digital communications)

jo mama · Sep 27, 2010

when it comes to civil liberties, obama is just as bad as bush and in some cases, even worse. when will we figure out that presidents will never cede powers that their predecessors claimed - they will only expand on them.

this is clearly not the kind of 'change' that he ran on and its the main reason why i could never support him - id rather vote my conscious (3rd party) than vote for the lesser of two evils.

at this point we might as well have palin in 2012 - at least it will help blow up the system quicker.

Invisible Fan · Sep 27, 2010

Deckard said:

Those of us hoping that we were helping to elect a liberal President have been disappointed, at least those paying attention. Better than Junior before him? Absolutely, but Obama has proven to be a moderate progressive, a centrist on many issues, and even conservative on some. In short, all over the map. I have to say I'm not crazy about it. The saving grace for me is that he's still a hundred times better than Bush, but that's a pretty low bar.
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I think it's more dangerous given our current partisan atmosphere.

I rather have a liberal champion mired in quagmire than a Cheney-lite who erodes our civil liberties while his party remains silent and circles the wagons to his defense.

rhadamanthus · Sep 27, 2010

ACLU statement:

“Under the guise of a technical fix, the government looks to be taking one more step toward conducting easy dragnet collection of Americans’ most private communications. Mandating that all communications software be accessible to the government is a huge privacy invasion. With concern over cybersecurity at an all-time high, this proposal will create even more security risks by mandating that our communications have a ‘backdoor’ for government use and will make our online interactions even more vulnerable.”

“Congress must reject the Obama administration’s proposal to make the Internet wiretap ready.”
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