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NSA: More legal gray areas and Hayden may be toast
Posted by: McQ on Friday, May 12, 2006

Apparently, if what I've been reading is true, it isn't at all as cut and dried as some might like to make it concerning the legality of the data mining in which NSA has been engaged.

On the one side:
NSA spokesman Don Weber said that given the nature of the agency's work, it would be "irresponsible to comment on actual or alleged operations issues." He added, "the NSA takes its legal responsibilities seriously and operates within the law."

A government official, while not confirming the existence of the NSA program, pointed to a 1979 Supreme Court case, Smith v. Maryland. The official said justices ruled that the acquisition of basic phone records — calling numbers, called numbers and duration of calls — is not a "search" under the Fourth Amendment and that individuals do not have a reasonable expectation of privacy in such call record data.
On the other:
But Kate Martin, director of the Center for National Security Studies, said after that case Congress required courts to approve the use of electronic devices that capture basic information about calls in real time, or to get a court order or a subpoena for phone records stored by phone companies.
The Telcos, at least in their stated policies, all say they require any such searches to be legally done, which, one assumes, would require court approval if Martin is correct.

They've responded to inquiries about their policies.

AT&T:
"AT&T has a long history of vigorously protecting customer privacy. ...We also have an obligation to assist law enforcement and other government agencies responsible for protecting the public welfare. . . . If and when AT&T is asked to help, we do so strictly within the law and under the most stringent conditions."
Verizon:
"We do not comment on national security matters. We act in full compliance with the law and we are committed to safeguarding our customers' privacy."
Bellsouth:
"BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority."
Cingular:
"We do not comment on national security matters. We are committed to protecting customer privacy, and we assist law enforcement in strict accordance with the law."
Comcast:
"It is not company policy to provide the federal government access to customer records or the ability to monitor customer communications in the absence of valid legal process."
Qwest refused to cooperate. I'd be interested in their reasoning. My guess all the others now hope their cooperation was in fact a result of "valid legal process", but to this point that isn't clear.

Interestingly, for all the frothing about "leaking national secrets", there's been a lawsuit going on over this very subject since January:
In January, the Electronic Frontier Foundation, a San Francisco-based group devoted to preserving privacy in digital media, alleged in a federal lawsuit that AT&T Inc. had given the NSA direct access to the records of the more than 300 million domestic and international calls and the huge volume of Internet data traffic. AT&T Inc. includes the AT&T Corp. and SBC Communications Inc.
[...]
The reports closely track allegations made against AT&T in a class action federal lawsuit filed against the telecommunications giant in January.

The suit, pending in U.S. District Court in California, alleges that AT&T participated in "a secret and illegal" NSA effort to intercept and analyze Americans' telephone and Internet use without a warrant, in violation of the U.S. Constitution.

The suit alleges that AT&T provided the NSA with "direct access" to the company's global telecommunications databases. ... A spokeswoman for the group, Rebecca Jeschke, said the USA Today report "confirms a lot of allegations in our lawsuit."
And our clueless Congress is, well, outraged. Sputtering and bluster are apparently the order of the day. The Judiciary committee, lead by the inept Republican Senator from PA, Arlen Spector, promises a spectacle worthy of the circus Congress has become:
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) called for hearings into the legality of the program.

The NSA is already under congressional scrutiny for a controversial, Bush-backed surveillance program under which it has eavesdropped without court warrants on the phone calls of suspected terrorists living in the United States and monitored their e-mails .

"The Judiciary Committee has the responsibility to assess [the] constitutionality of what is going on in America today," Specter said. He vowed to haul the three companies before his committee, and said he wants to know why the Justice Department abruptly ended its inquiry into the program.
Yeah, good luck with that. Oh and you have to love this, speaking of "oversight":
Rep. Jane Harman (D-Calif.), the ranking member of the House Intelligence Committee, expressed surprise about the extent of the program.
Really? Why is that, Rep. Harman? I mean if you and the committe are so tuned in as you all claim to be. On the other hand:
But Rep. Pete Hoekstra (R-Mich.), said he and other Intelligence Committee members had been repeatedly informed about terrorist surveillance programs. He said he was not "aware of any reason to believe that the program is not in full compliance with the Constitution and the laws of the United States."
I love the line about not being "aware" of any reason to "believe" the program doesn't comply with the law. Makes you feel as if they really took the oversight responsibility seriously, doesn't it? No one should have to "believe" it was in compliance. They should know, right now, without any question, that it is or isn't in compliance.

And Gen. Hayden? Heh ... timing is everything, isn't it? Even those who tenatively backed him are rethinking their position:
Sen. Dianne Feinstein, D-Calif., who has spoken favorably of the nomination, said the latest revelation "is also going to present a growing impediment to the confirmation of Gen. Hayden."
As Bush's popularity circles the drain and Congress appears more and more inept and clueless, the Democrats chances in November become better and better even given the fact that at times they seem to be their own worst enemies.

Previous posts on QandO can be found here and here.

UPDATE [Jon Henke]

Center for National Security Studies Director Kate Martin, referenced in the story above, has posted background and analysis at ACSBlog.

Orin Kerr also analyses this and concludes that "there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute."

Equally disturbing is the appearance that "Qwest wanted the government to obtain a court order for the monitoring, and that the government refused because they concluded that the FISA court might not grant the order." Apparently, the government's position was it's not necessary to get a court order, because it would just be rejected and we want to do it anyway.
 
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Sen. Dianne Feinstein, D-Calif., who has spoken favorably of the nomination, said the latest revelation "is also going to present a growing impediment to the confirmation of Gen. Hayden."
Ahhhhh....and here’s where they give away the game. How convenient that an old story is dredged up and prodded out again just in time to help torpedo another high profile Bush nominee.

Of course, according to Drudge, most Americans don’t seem to mind that NSA program, so again McQ, I truly doubt you’ll get that oversight you want on this since a Dem congress will run away screaming from touching that, especially when they can make pious noises about oil price gouging for 2 years

 
Written By: shark
URL: http://
"Qwest wanted the government to obtain a court order for the monitoring, and that the government refused because they concluded that the FISA court might not grant the order." Apparently, the government’s position was it’s not necessary to get a court order, because it would just be rejected and we want to do it anyway.
Or, Qwest would have accepted a National Security Letter from the Attorney General stating that it is legal for them to turn over the requested data to the NSA. The NSA lawyers, according to reports, said they also didn’t believe they could secure that. John Ashcroft was AG at the time, and it is known that he and some of lieutenants balked at approving the warrantless wire-tapping, refusing to sign off on it.

I don’t object to the data-mining program per se, based on what I know of it, provided only that it be conducted legally and with judicial oversight. That the NSA had to evade both the FIS Court and the AG on this matter, strongly suggests that this program, which is not necessarily wrong of itself, is not being implemented legally.
 
Written By: Mona
URL: http://
Of course, according to Drudge, most Americans don’t seem to mind that NSA program
Give it a few days, when polls ask whether such a program should be done in compliance with the law and w/ judicial oversight. I’ll bet most Americans think those are the conditions precedent for approval of the program. They are mine, and the NSA seems confident they are also those of the FIS Court and former AG John Ashcroft.
 
Written By: Mona
URL: http://
Gen. Hayden is starting to look more and more like THIS "General" Hayden.
 
Written By: D
URL: http://
The program *might* be perfectly legal...But Iam not comfortable with the government having the list of phone calls made from my phone. Repugnicans seem to be on the way out...I was a Republican supporter until 2003 and then I became ambivalent and now Iam downright against them....It has been such a disappointment, really.
 
Written By: Ivan
URL: http://
But Kate Martin, director of the Center for National Security Studies, said after that case Congress required courts to approve the use of electronic devices that capture basic information about calls in real time, or to get a court order or a subpoena for phone records stored by phone companies.
would you happen to have a link to that law?
I love the line about not being "aware" of any reason to "believe" the program doesn’t comply with the law. Makes you feel as if they really took the oversight responsibility seriously, doesn’t it? No one should have to "believe" it was in compliance. They should know, right now, without any question, that it is or isn’t in compliance.
Apparently you have a visceral reaction-as do I, to mealy-mouthed words. But Jon follows up with this:
Equally disturbing is the appearance that "Qwest wanted the government to obtain a court order for the monitoring, and that the government refused because they concluded that the FISA court might not grant the order." Apparently, the government’s position was it’s not necessary to get a court order, because it would just be rejected and we want to do it anyway.
 
Written By: tom scott
URL: http://
I was a Republican supporter until 2003 and then I became ambivalent and now Iam downright against them...
A similar history here. Btw, Orin Kerr reports, in the second link Jon provides to him, that as I was saying yesterday, this program does likely violate the Stored Communications Act. But importantly, the version of the SCA he and I and many others were parsing yesterday has been amended in March of this year during renewal of The Patriot Act. The changes would seem to reflect concern on the part of the telcos regarding being subject to civil liability from their customers. As Kerr concludes, I don’t think the change in the law is going to help them there much, especially since this went on for years under the old language. Even under the new, I don’t think this is legal.
 
Written By: Mona
URL: http://
Now if only the same phone companies would stop giving the same records to telemarketers.

It seems to me that there is something seriously out of whack that allows this same information to be given to anyone but the government. The same rules should apply. How do you think international criminals orgs get their data to traget potential victoms for scams?

I would love to get through one day without some third world national calling me to try get me to buy whatever.
 
Written By: capt joe
URL: http://
would you happen to have a link to that law?
Title 18, Chapter 121
2702. Voluntary disclosure of customer communications or records
2703. Required disclosure of customer communications or records
2709. Counterintelligence access to telephone toll and transactional records


2709 does not require the FBI to obtain a court order, and they can pass the information along. However, the USA Today article implies that the FBI was not involved in the NSA dealings with the telecommunications companies.

 
Written By: JWG
URL: http://
I hate the spill the beans, but telcos already capture call information in near-real time. Like within 30 seconds of the call event.

Every router of which I am aware are already capable of logging their packets (hey, you gotta be able to debug this stuff). Every MTA worth anything can/will log the e-mails which pass through it.

The government doesn’t have to attach anything to these networks to capture this information. The telco/ISP is already doing it for them.

I’ve already commented on the Stored Communications Act in another thread.
 
Written By: Mark A. Flacy
URL: http://
Apparently you have a visceral reaction-as do I, to mealy-mouthed words. But Jon follows up with this:
Read the story for yourself:
Unable to get comfortable with what NSA was proposing, Qwest’s lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA’s explanation did little to satisfy Qwest’s lawyers. "They told (Qwest) they didn’t want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest’s suggestion of getting a letter of authorization from the U.S. attorney general’s office. A second person confirmed this version of events.
 
Written By: Jon Henke
URL: http://www.qando.net/
John Ashcroft was AG at the time, and it is known that he and some of lieutenants balked at approving the warrantless wire-tapping, refusing to sign off on it.
Wow...

Why do I now think that’s the reason he stepped down? Even more, why do I suspect he was actually pushed out because of this unexpected brake on his otherwise strong irrational love of authority?
 
Written By: b-psycho
URL: http://www.psychopolitik.com
JWG: Thanks for that link.
Jon: I know the original words were theirs but you saw fit to repeat them. And they are mealy-mouthed.
 
Written By: tom scott
URL: http://
Give it a few days, when polls ask whether such a program should be done in compliance with the law and w/ judicial oversight. I’ll bet most Americans think those are the conditions precedent for approval of the program.
They’re mine as well.

Let me be clear: I have no problem with LAWFUL data mining. None. Makes sense and may help.

What concerns me is, obviously, unlawful programs.

We do have laws and procedures. The data is just as available and just as valuable when established legal procedures are followed.

I’m not convinced, to this point (just as I’m not convinced concerning wiretapping) that the programs are lawful. And that is my concern.

I do not cede the power to ignore the law, in cases like this, to anyone and especially not to government.
 
Written By: McQ
URL: http://www.qando.net/blog
Most Americans don’t care. Seriously we simply don’t care, many people assume the government is already listening in anyway. All sane Americans can do the math and realize that there’s simply not the manpower or computer firepower to record and listen to every single message by every single American every single second of every single hour every day. That’s ludicrous, they’d need a number of employees larger than the population of the United States.
 
Written By: Christopher Taylor
URL: http://networdblog.blogspot.com/
McQ kind of hit the nail on the head for me. I absolutely have no problem with data mining or the wire tap surveillance per se, as long as they are done legally. If the laws are not on the books, then work with the legislature to make them so. I am of the ilk that if you have nothing to hide, then there is nothing to fear. I understand and accept the idea that the government should not be given too broad of powers, but failed to see what kind of harm could be done by the government in this case. Others have surmised that the govt could use this information for more insidious plans such as going after other special interest groups or organizations. I don’t see that and I guess I will be called naive. I prefer to be called not paranoid. But, oh well.

I am relatively new to this site and the whole Neo-Libertarian platform and was having a bit of an issue with Neo-Libertarians’ stance on national security and measures to be taken against the newest and most agile enemy the United States has had to date. It seemed to me that there was an awful lot of venting and hand wringing over this data mining episode, but very little constructive alternatives/solutions. Anyhow, is there somewhere on this site, or another, that could give me a more concise idea of the Neo-Libertarian platform on the war against terrorism or whatever name you may give it? Thanks.
 
Written By: Rob
URL: http://
All sane Americans can do the math and realize that there’s simply not the manpower or computer firepower to record and listen to every single message by every single American every single second of every single hour every day.
I’m sorry, I must have missed it ... where did anyone say anywhere in the article or comments that they were "listening"?
 
Written By: McQ
URL: http://www.qando.net/blog
Rob,

Re: Neolibertarians, start here. Look up in the immediate right hand corner. Good place to start.
It seemed to me that there was an awful lot of venting and hand wringing over this data mining episode, but very little constructive alternatives/solutions.
Actually the solution is fairly simple:

A) Follow the law.

B) If the law isn’t sufficient, then go to Congress and get it changed.

C) Until then, follow the law.

That is, if we are indeed a nation of laws as we like to claim.
 
Written By: McQ
URL: http://www.qando.net/blog
According to my present knowledge, a Federal Court (perhaps the SC) ruled that tracking phone numbers called is not an invasion of privacy and not a violation of the 4th Amendment b/c the those numbers you dial are made known to the phone company, and therefore those numbers are not private. Despite what you think about that line of reasoning and assuming that the NSA is just looking at dialed phone numbers, it seems that what the NSA is doing is legal. End of discussion.

Am I missing something here? We keep talking about "following the law" and "most people don’t care" but the issue is, is it legal? So let’s get to the point.
 
Written By: Nuclear
URL: http://
Am I missing something here? We keep talking about "following the law" and "most people don’t care" but the issue is, is it legal? So let’s get to the point.
See the links in the story. There are those, like Kate Martin and Orin Kerr, who aren’t at all sure it’s legal.

Again, where was the Congressional oversight that ensured the program was legal? Don’t you think it would be important they knew it to be so before they sanctioned it?

Where were the Justice Dept. lawyers who’s job it is to ensure it was legal? Isn’t it their job to let the administration know for sure that what they’re doing is legal?

If it’s such a cut and dried thing, why all the questions?

Etc., etc.
 
Written By: McQ
URL: http://www.qando.net/blog
Again, where was the Congressional oversight that ensured the program was legal?
They were there. Harry Reid and his friends knew about it.

Where were the Justice Dept. lawyers who’s job it is to ensure it was legal? They had a meeting and ensure it was legal. Isn’t it their job to let the administration know for sure that what they’re doing is legal? Yes. See above.
 
Written By: Nuclear
URL: http://
Again, where was the Congressional oversight that ensured the program was legal?
They were there. Harry Reid and his friends knew about it.
Knowing about it isn’t "oversight". Neither is "believing" it to be OK as in the case of Rep. Hoekstra or being completly surprised about its extent as in the case of Rep. Harman.
Where were the Justice Dept. lawyers who’s job it is to ensure it was legal? They had a meeting and ensure it was legal. Isn’t it their job to let the administration know for sure that what they’re doing is legal? Yes. See above.
Yes, precisely.

So why couldn’t they answer Qwest’s questions and assure them it was legal?
 
Written By: McQ
URL: http://www.qando.net/blog
McQ, thanks. And once again, I agree. We are a nation of laws. It seems so simple. I guess the one point of confusion (there are probably others)for me in this area is that people talk too much about this administration’s "liberal" interpretation of it’s executive powers in a vacuum, it seems. I guess it depends on if you think we are truly in a "war" against islamofascists or not. I know your stance on how to prosecute this "war" and it is much appreciated.

I will follow the link. Thanks again!
 
Written By: Rob
URL: http://
Despite what you think about that line of reasoning and assuming that the NSA is just looking at dialed phone numbers, it seems that what the NSA is doing is legal. End of discussion.

Am I missing something here?
Yes, you are missing quite a bit. It is well-settled law that pen registry-type records may be obtained without a warrant for 4th Am purposes, because one does not hold an expectation of privacy regarding third party records of calls one has made or received — so has said the SCOTUS.

But that is not the end of the inquiry; Orin Kerr agrees that the NSA data-mining project seems akin to a pen registry scenario, and so the NSA has not violated the 4th Am. Yet, he believes the procurement of these records likely violates the law. Congress, when it does not like a SCOTUS decison, or for any reason at all, may provide by statute what the Supremes decree is not a protection afforded by the Constitution. And Congress has done so myriad times, including in the area of govt procurement of telecommunications records. The NSA program under discussion strongly appears to violate several such statutes.
 
Written By: Mona
URL: http://
I know your stance on how to prosecute this "war" and it is much appreciated.
Believe it or not, we support the WoT and the war in Iraq. We believe it should be prosecuted vigorously. But we also believe it should be prosecuted within the law.
 
Written By: McQ
URL: http://www.qando.net/blog
Of course, according to Drudge, most Americans don’t seem to mind that NSA program
Give it a few days, when polls ask whether such a program should be done in compliance with the law and w/ judicial oversight. I’ll bet most Americans think those are the conditions precedent for approval of the program.
When the NSA wiretaps thingie first broke over the winter, wasn’t there a question regarding the language? In other words, when people were asked if the taps were made without a warrant, there was more concern.

A recent poll (commissioned by AfterDowningStreet.org) was conducted by Zogby. It shows that 52% of respondents agreed with the statement: "If President Bush wiretapped American citizens without the approval of a judge, do you agree or disagree that Congress should consider holding him accountable through impeachment." 43% disagreed with the statement. A clear partisan split was shown by this poll; independents were evenly split, 76% of Democrats agreed, but only 29% of Republicans agreed with the statement.
You’ll have to forgive my memory. For it is Friday and I’ve already had a few. :-}
 
Written By: PogueMahone
URL: http://
I’m sorry, I must have missed it ... where did anyone say anywhere in the article or comments that they were "listening"?

The listening part is presumed. If the information is simply gathered and not examined, then nobody anywhere could have any complaints or even bring up privacy. It’s when the bits are listened to or examined that there is any room for concerns for privacy.

Bottom line is that people just don’t care. I don’t have to have polls, I can simply see how people react to the story. They shrug and go on with their lives.
 
Written By: Christopher Taylor
URL: http://networdblog.blogspot.com/
Christopher Taylor claims:
Bottom line is that people just don’t care. I don’t have to have polls, I can simply see how people react to the story. They shrug and go on with their lives.
Newsweek Poll: Americans Wary of NSA Spying -Bush’s approval ratings hit new lows as controversy rages.

Has the Bush administration gone too far in expanding the powers of the President to fight terrorism? Yes, say a majority of Americans, following this week’s revelation that the National Security Agency has been secretly collecting the phone records of U.S. citizens since the September 11 terrorist attacks. According to the latest NEWSWEEK poll, 53 percent of Americans think the NSA’s surveillance program “goes too far in invading people’s privacy,” while 41 percent see it as a necessary tool to combat terrorism.... Americans think the White House has overstepped its bounds: 57 percent said that in light of the NSA data-mining news and other executive actions, the Bush-Cheney Administration has “gone too far in expanding presidential power.” That compares to 38 percent who think the Administration’s actions are appropriate.

.. Iraq continues to be the biggest drain on the president’s popularity: 86 percent of Americans say the Iraq situation, coupled with new information about the decision to go to war, have negatively influenced their view of the president...


Seventy-one percent of Americans are dissatisfied with the way things are going in the country, and more than half—52 percent—say they would like the Democrats to win enough seats to take over Congress this November (only 35 percent want the Republicans to keep control). Looking ahead to the presidential race in 2008, more Americans said they would like to see a Democrat elected than a Republican—50 percent versus 31 percent.
 
Written By: Mona
URL: http://
The listening part is presumed.
Only by you. The rest of us know that "listening" was never a part of what was going on with this story. We know what "data-mining" means.

Oh, and Mona does have the polls and like she and I presumed yesterday, when couched in legality, suddenly there’s a different view.
 
Written By: McQ
URL: http://www.qando.net/blog
I believe this program is strikingly different from the wiretapping issue.

The data acquired here seems to be the wholesale harvesting of data without regard to who is involved. That is different from wiretapping suspected terrorist.

Also the information is much more powerful than people give it credit. Cell phone users likely have a location attached to where they called from. Also, today, we call just about everyone we have anykind of dealings with. So essentially you can get a known associates list.

And although they are looking at patterns, they are tying it specific persons or organizations. They have to be. High level statistics about calling patterns would be useful for planning new cell phone towers, otherwise its meansingless data. This information is probably the calling patterns in terms how many suspected terrorists start calling simultaneously to various groups or accept overseas calls when there’s some international terrorist activity. Regardless, there has to be links to specific people and organizations.

But why does the government need the calling info of my 75 year old mother. Sorry the abuse potential is too great to have info on just anyone handy. The information should be readily available, but only as needed.

I suspect the real reason is that they wanted to observe who was calling various Islamic groups, organizations, and religious institutions but that wouldn’t be politically correct. So they’re just going to run it on everyone.

I believe the program has been started and probably run with good intentions. But the road to hell if paved with them. And those of you don’t have an issue with this, where is the line? Is it arbitrary physical searches of everyone’s home? Where?
 
Written By: jpm100
URL: http://
By handy as needed, I mean the data should be pulled with a documented reason. Having it all compiled and condensed, my assumptions means, someone’s data could be reviewed with no papertrail as to why or by who.
 
Written By: jpm100
URL: http://
Meanwhile, consider what a sampling of Fox Fans messages are saying about whether the NSA should be limited in its, um, relentless pursuit of terrorists.
 
Written By: D.A. Ridgely
URL: http://

 
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