The FISA Debate Begins
This morning, the Senate starts debating legislation to expand the government's surveillance powers.
Unfortunately, the bill we are going to be considering is the one reported out by the Senate Intelligence Committee in October, S. 2248. It did not have to be this way. Thirteen Senators joined me last week in asking the Majority Leader to instead bring up a bill that includes the changes approved by the speak against the motion before the vote, and will post a link to my remarks after I make them.
We have a big fight on our hands, and unfortunately, the deck is now stacked against us. Instead of being able to defend improvements that were made in the Judiciary Committee, we are going to have to start all over again to try to salvage the good work that was done to improve the bill. This includes adding tougher court oversight and greater protection for the privacy of innocent Americans, and by stripping out the retroactive immunity provision. A vote on the amendment to strike immunity, which Senator Dodd and I will offer, could come fairly soon. We will be pointing out that under current law, companies already get immunity for cooperating with government requests for information -- as long as the requests follow requirements that are clearly laid out in the law. If companies didn't follow this law, and cooperated with illegitimate requests for sensitive information, then we should not hand them a "get out of jail free" card after the fact. Judges should be the ones to make this determination -- and to rule on the legality of the warrantless program.
It's now up to the Senate to stand up for the rule of law and against the misinformation and fear tactics that the administration always rolls out on the surveillance issue. That means Democrats will have to finally stand up to the administration on national security issues. Strong votes in favor of our efforts to improve the bill, even if they don’t succeed, will strengthen our hand as a final bill is negotiated with the House, which passed a much better bill than S. 2248 last month.
I appreciate all of the encouragement and support I have received from commentators and concerned citizens in the blogosphere on this issue. Now it’s crunch time. We can provide the government all the tools it needs to fight terrorism and protect the rights and freedoms that are guaranteed by the Constitution. My work this week is focused on that goal. I hope to provide periodic updates, from my perspective, on where things are headed this week. I look forward to hearing from you as the debate develops.
Comments (70)
Senator, thank you for fulfilling your Oath of Office. Thank you for standing up for the Constitution and Bill of Rights. And for We the People. It is heartening that you have stood for us, sometimes as a lone individual in the Senate, who has cried out in a wilderness of colleagues dazed by special interest Siren calls.
Your constituents and your country need you more than ever at this moment of crisis in our nation. History will record those who stood up for We the People, carrying out their Oath of Office. And you are among them.
December 17, 2007 6:29 AM | Reply | Permalink
Russ,
In this, you are making very proud that I have voted for you since your first senate race. Keep up the good work.
December 17, 2007 6:59 AM | Reply | Permalink
Russ:
Fine so far. Now, are you willing to filibuster any lsw which allows the telecoms to get retroactive immunity?
December 17, 2007 8:16 AM | Reply | Permalink
My thoughts exactly. Filibuster.
Or better yet, why don't all the Senators who oppose this bill put their own "hold" requests on it?
Surely fifteen or twenty Democratic holds ought to at least be the equal of one Republican (Tom Coburn) hold.
If Harry Reid respects Coburn's hold and ignores Dodd's hold, he doesn't deserve to lead the Senate, and he surely doesn't qualify as a Democrat. What's next, Harry - an endorsement for John McCain?
December 17, 2007 9:13 AM | Reply | Permalink
Good one! I laughed until I stopped.
December 17, 2007 6:34 AM | Reply | Permalink
What the hell is wrong with you people? Why are the Democrats in congress such a bunch of wimps? Do you think that letting Bush do what he wants is getting you votes somewhere? Do you think that caving to Bush makes you look strong? You have yet to win a single fight on anything. Do your goddamn jobs and kill this bill.
December 17, 2007 6:46 AM | Reply | Permalink
What Reece said!
December 17, 2007 6:53 AM | Reply | Permalink
If telecom immunity wasn't what the Democrats in congress wanted they wouldn't be ramrodding it through.
December 17, 2007 7:07 AM | Reply | Permalink
Thanks for posting this update, Senator, and thanks for taking on this fight.
Do the surveillance programs discussed in the New York Times yesterday affect this debate? From what I understand, these include data mining of calls to and from Latin America to uncover drug smuggling operations, and also an NSA request for access to purely domestic communications.
Is warrantless surveillance a wider phenomenon than it seemed? Is the new NSA program that has raised so much controversy somethng that grew out of existing practices?
December 17, 2007 6:46 AM | Reply | Permalink
While the proponents of telecom amnesty and the effective elimination of FISA talk a about terrorists and al qaeda, there is no such limitation in the legislation. "Targets" can be identified for any reason the NSA or the CIA choose to identify them.
December 17, 2007 7:59 AM | Reply | Permalink
Adding my thanks, also, Senator. Good luck today.
Now that the drug trade has moved to Mexico, isn't the Bush administration behind the times by collecting the records of US calls made to Latin America?
...the delusional is no longer marginal. It has come in from the fringe, to sit in the seat of power in the Oval Office and in Congress. Bill Moyers
December 17, 2007 8:13 AM | Reply | Permalink
I wrote to Reid last week when this stupid decision was announced. But no reply as of yet. I am sure he is too busy sucking up to Holy Joe this week to pay attention.
December 17, 2007 6:47 AM | Reply | Permalink
My understanding is that Reid is not particularly enamored with Lieberman this week. He's quite unhappy about Joe endorsing McCain. OTOH, Lieberman said none of his four colleagues on the Democratic side of the aisle asked for his vote or his endorsement. My guess is none of them wanted to go through their campaign with an millstone hanging around their necks. Joe would be poison to a Democrat running for President.
December 17, 2007 9:48 PM | Reply | Permalink
Best of luck to you.
Considering recent reports of teh administration using NSA in conjunction with the telecoms to pursue criminal investigations, it is troubling that the White House has been eager to blur the line between not only foreign and domestic surveillance, but between criminal and national-security issues.
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
The Foreign Intelligence Surveillance Court of Review issued this ruling in late 2002, and it shows that the administration wanted freedom to use FISA to pursue incidental criminal investigations. This resonates with the NY Times reporting that talks about NSA wanting to archive telephone records for later use.
The review court did not give the adminstration everything it wanted, and it seems likely the WH went ahead and did what it wanted despite the limited ruling. This case was argued by Ashcroft's Justice Dept. Did the failure to achieve the desired ruling lead to the hospital visit later?
December 17, 2007 6:54 AM | Reply | Permalink
I remember reading about some cases a couple years ago where the Administration was using a similar tactic to bypass the law with the help of corporate data miners.
Basically they bypassed barriers on domestic surveillance by having private companies data mine American records, everything from sales transactions to movie rentals, and then buy that information from the private companies. Of course they're not allowed to collect any of that nor do that sort of surveillance on Americans. And they're not supposed to even have the data. Obviously "don't surveil Americans" doesn't mean "unless you pay a 3rd party to do it for you."
But that's just what they did by buying it from data miners in the private sector. And of course the Bush DoJ never did anything about it.
Can't remember the name, but the biggest data mining corporation in America is based somewhere in the south, Texas maybe, and has close ties to the Bush Admin and that circle. The executives are all fundies and big Republican donors. It's really a giant corporation with a huge annual revenue and a warehouse of servers. I remember being rather stunned at the time to discover how profitable data mining is and how much confidential information is commodified and traded. I also recall they had a bunch of security problems with their servers being hacked and also with illegal sales of data that was supposed to be confidential. If anyone recalls the name, please post.
All of this grew out of Carnivore and TIA. It never went away, they just privatized much of the illegal bits to keep it off the books. The ATT and Verizon stuff is just the tip of the iceberg.
December 17, 2007 7:43 AM | Reply | Permalink
Rove cut his teeth on data mining. These folks knew just what they were doing. Mrs P looked into a lot of that.
December 17, 2007 7:44 AM | Reply | Permalink
btw, while Feingold blows his top sometimes, which doesn't help, gotta give him credit where due. He's really been on top of these issues.
http://w2.eff.org/Privacy/TIA/feingold-s188.php
December 17, 2007 7:46 AM | Reply | Permalink
My instincts tell me that beyond the telecom companies, there may be other, third-party businesses which have something to do with all the captured voice and email traffic, under heavily classified government contract. Sort of a Blackwater of the data-mining world.
It would be simple for an outside contractor to extract data on, let's say, a political opponent, or prominent antiwar activist, or a cable news journalist using her cell phone overseas. Much cleaner, and easier to cover up, than asking the NSA to cull it out for them.
And, like all the RNC/Rove/White House emails, data is simpler to delete when in the hands of an outside company. The threshold of accountability is so much lower.
Just idle speculation.
December 17, 2007 3:24 PM | Reply | Permalink
Not utterly idle speculation, in that the White House Special Counsel Scott Bloch hired a private firm, Geeks on Call, to do a thorough wipe of his office hard drives. Reportedly a company tech called it a "level 7" wipe, and said that would not be necessary for a virus problem, which Bloch explained as the reason.
December 17, 2007 4:08 PM | Reply | Permalink
If there was something on those drives, a software only wipe still may not clear them. It's essentially a three-dimensional problem, which, with a modified scanning electron microscope, you may be able to data. Successive track wipes may not cover exactly the same area, and, even if they are superimposed, the remanence (residual magnetism) of the platter can be in layers.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 17, 2007 5:16 PM | Reply | Permalink
Seems like the geeks would not only wipe but write arbitrary data to fill all sectors. Successive erasure goes asymptotic, but overwriting would push signal below noise, I'd think.
In any case, it sounds right to say that a virus problem would not require data destruction. Reformatting is sufficient for that, in my experience. So why did Bloch hire Geeks on Call? The obvious is likely the truth---he has something to hide, for someone's benefit.
December 17, 2007 5:34 PM | Reply | Permalink
It's at least a seven pass overwrite, and some use up to 35 passes. You're correct multiple overwrites, if done correctly with various write strategies, leave only noise.
The idea that the data is still recoverable because the data stacks in layers and is always there, is really an urban legend. If that were true, then not only would the last write be recovered, but all writes on the disk going back many layers. A 3D, essentially holographic, storage medium.
Yes it's possible to get a few layers back, if you analyze the plates on a molecular level. But that's going to be incredibly expensive and slow, and not possible in a general investigation especially when one doesn't know exactly where to look. Also, it's won't get anything from high levels of overwrite.
There is also degaussing, heating or other methods of destruction which destroy the medium entirely.
December 17, 2007 11:15 PM | Reply | Permalink
Not speculation, it's already happened. The company I was referring to was doing exactly that.
December 17, 2007 10:39 PM | Reply | Permalink
I donned by fortune teller's hat this morning and saw a new product about to appear on the market: public key incripted cell phones.
December 17, 2007 6:54 AM | Reply | Permalink
They exist now, and have for even longer as things available to military contractors.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 17, 2007 7:39 AM | Reply | Permalink
Far more securely encrypted comms can be done easilly in IM or email. One can roll an app with public algorithms and defeat all known attacks with a little effort.
I mean, unless RSA has been truly cracked by the NSA and nobody knows it, any determined computer literate 13yo kid with a laptop, who thought about it for a couple days, could figure out how to encrypt with several thousand bit RSA, and embed useful content in noise, and decode it fixed time, and so on. Which is going to be slow, but totally secure to any known attack other than brute force requiring all the computing power in the world for the next thousand years or so. And for a group that plans like AQ does, only attacks every several years, and goes as far as training people to fly commercial airliners, why do I suspect they're not stupid enough to have missed that.
Which makes HLS catching the guy who wanted to take down the Brooklyn Bridge with a blowtorch, and justifying domestic surveillance on that basis, all the more absurd.
December 17, 2007 8:18 AM | Reply | Permalink
That will get you flagged quicker than saying bomb and Allah in the same sentence (oops!).
And don't think these commonly used algorithms aren't cracked by NSA.
December 17, 2007 12:07 PM | Reply | Permalink
Not really.
There are plenty of ways it could be easily hidden. For example it could be carried in the margins of a digital video, music, or whatever. Done poorly it would still be too computationally expensive to check every image, movie, mp3, etc to look for anomalies that indicate embedded data, and then even if you found it you still couldn't break it. It would be like trying to run a thorough heuristic virus scan on the entire internet, in real time, all the time, and hoping your algorithm was even good enough to detect it even if you find it. A big waste of time.
Done properly it would be undetectable even if you basically knew where to look. So it could be embedded in Paris Hilton's sex tape, and nobody would ever know, even if the NSA spent all day staring at it.
And there are known versions of RSA with NSA back doors. Anyone even passingly familiar with the subject knows which ones they are. The commercial ones for export, the ones with limited bit keys, etc. But there are public domain algorithms that are known to be original and secure.
Unless the NSA has done a very good job of hiding it, in collusion with the world's top mathematicians, almost all of whom are in academia and publish regularly in public journals, and most of whom aren't American, there is no method of breaking a properly done public key encryption of sufficiently long bit key, which can be rolled from publicly available algorithms which don't have back doors. Unless one screws it up, there are only brute force methods and a sufficiently long key would take practically infinite computing time to break.
Again, unless the NSA has invented holographic computers and kept them secret, or colluded with all the world's mathematic community without anyone finding out, which is more James Bond than reality, RSA done right is totally secure.
And none of this is secret. It's all public knowledge and rather widely known. There are plenty of 13yo hackers who know it. Anyone with a CS degree and familiarity with encryption knows it. A lot of geeks know it. Literally millions of people around the world know this. and I hate to break it to anyone, but there are computer geeks everywhere, from China to Saudi Arabia to Chechnya, and so on. Including probably some well educated members of Bin Laden's family.
So I find it extremely unlikely, as in totally impossible, they don't know how to make strong encryption work. A number of news reports even seems to indicate they're already known to be using it.
At best I'd say the NSA is hoping for human error. But this isn't the era of literal one use pads. And even one human error in this era won't necessarily lead to further breaks due to the nature of compartmentalization and the nature of the technology which doesn't leave bread crumb trails. The use of traceable GSM chips was probably the biggest mistake they're going to make, and it was a fairly low-tech mistake. But still, a computerized communication done even at the 13yo hacker/geek level is going to be unbreakable.
The rationale for data mining doesn't hold water. It is however an excellent means of good old J. Edgar Hoover domestic surveillance, which the far right always wants.
December 17, 2007 5:58 PM | Reply | Permalink
Yeah, figured as much. I'm just watching for the ads on TV. I figured you'd be the first to reply too. Thanks.
OT and BTW, I foresee a system that "plays back" seemly innocuous conversation ("boy I sure like the Bush dictatorship Jim, don't you") while actually incripting real time private conversation. ;-)
December 17, 2007 10:03 AM | Reply | Permalink
Playback of innocuous or nonsense traffic is called masking in communications security. The real (separately encrypted) text can be inserted at pseudo-random places (again defined by a different kind of encryption), or, in the perversity of a covert channel, in things like the number of quiet seconds. Covert channels aren't fast, but, for an order like "execute operation Satan", don't need to carry much.
There's a constant back-and-forth between the people who develop communications security and those who break them. It's no longer an NSA monopoly; the latest US government encryption system, approved up to TOP SECRET with NSA-supplied keys, was won by two Belgian researchers in an open forum. In like manner, NSA's SKIPJACK cryptosystem, while presenting substantial security, still has been broken by private researchers.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 17, 2007 12:39 PM | Reply | Permalink
Not really.
SKIPJACK? Come on. I mean 80 bit encryption? Every geek interested in encryption knows that's a joke, because one can easily be exponentially more secure for almost no more effort. Those standards were made to be broken. Even 128 to 512 are pretty common, and that's exponentially more difficult to break. But to be extra cautious, why not a several thousand bit key or little more effort?
Keys in the 56-80 bit area, and even the low hundreds, are for legit business people who probably don't really care too much if the NSA breaks it. Or alternatively, a bureaucratic organization of Luddites, like the US Senate for example, who it never occurred to them they'd be hacked, the type of people who leave back door accounts active. :rolleyes:
But any reasonably tech savvy group deliberately avoiding the NSA, from 13yo hackers to terrorists, can easily use bit keys in the several thousands, and use them properly, just to be totally secure a few orders of magnitude over. A typical PC or laptop can encrypt and decrypt that no problem. Even a PDA could do it with a little effort. And the NSA can't break it in a hundred years.
Embed that in digital video, mp3s, or even better, bulk SPAM email collated at the receiving end or something else devious for "operation Satan" and forget about it. It could be sent over an NSA server and they'd never know it.
Which again, isn't a secret. Most anybody with a CS degree and interest in cryptology knows this, even in Saudi Arabia and such.
So the NSA rationale for data mining isn't rational. It is a great means of good old domestic surveillance J Edgar Hoover style. If AQ has a sense of humor, they're probably embedding the unbreakable orders for "Operation Satan" in tranny porn.
December 17, 2007 6:26 PM | Reply | Permalink
You may be a geek interested in encryption. I may be a geek interested in encryption. As you may have noticed, this is TPMcafe, not DEFCON, and not something in the Friedman Auditorium. SKIPJACK is old technology that may well have been discussed in places where people more interested in public policy than Elliptic Curve encryption.
No, it isn't a secret, but I'm using an example that might be known to some of the nonspecialists hereabouts. I could go back to DES, which is relevant in a public policy discussion because the Senate Intelligence Committee commissioned an independent review to look for backdoors when DES-64 went down to DES-56.
I didn't think it was all that useful to go to Jefferson/Bazeries, or Julius Caesar. Was there a point you were making to the participants in this thread that don't do COMSEC?
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 17, 2007 6:19 PM | Reply | Permalink
I don't know if we're disagreeing on the substance, or you're just being disagreeable.
But my point was pretty straight forward:
Weak encryption standards that were designed to be broken, are irrelevant to the discussion of data-mining and terrorism. A group as smart as AQ is certainly using totally secure, unbreakable, encryption, not SKIPJACK or anythign like it. So talking about SKIPJACK being broken, could create the false impression in some, that data mining may actually have some usefulness, or that the NSA might actually be able to break terrorist communication. Neither of which is going to be true for any group worth catching.
The only people using such low bit depth encryption are 1) Luddites 2) people who don't really care or haven't thought about the NSA breaking it. The real terrorists we're supposed to be hunting are neither.
13yo kids in Eastern Europe, China, Africa, South America, and elsewhere know how to do unbreakable encryption. A reasonably bright person with a little technical aptitude, basically knowing how to Google, can teach themselves how to do it in no time, easy, using public information and open source algorithms.
Then take a group like AQ. They're of singular purpose: to avoid being caught. It's obvious the NSA is looking for them. They're highly educated and intelligent, technically savvy, patient, and deliberate. They can't possibly NOT know how to use strong encryption.
Is there one good reason the orders for "Operation Satan" aren't encrypted in several thousand bit keys, unbreakable, and well hidden?
OK, so the NSA is never going to crack them. And TIA is just good old domestic surveillance against ordinary folks, under the pretense of fighting terrorism.
***
Data mining has only "caught" the "terrorists" like that small group of goof balls who had no plan, no weapons, no money, no nothing, and were basically a bunch of harmless grousing hippies of way below average qualities. In other words, the only "terrorists" data mining is going to catch are the one's too stupid to do anything even if they were never caught. Like the guy with the blow torch.
For that we're allowing the government unfettered domestic surveillance in collusion with private and partisan companies who also sell the data to 3rd parties. It's madness.
The argument that TIA type data mining is useful to catch AQ is a bad joke. It's Technically Incapable of Actually doing what they claim. It's just manipulating public fears for good old public domestic surveillance again. Which the right wing is always trying to do.
December 17, 2007 6:58 PM | Reply | Permalink
If you're simply going to wonder if I am being disagreeable, when I was attempting to make a complex area more understandable to the nonspecialist, without any inferences about key length, we probably don't have anything useful to discuss. My first post in this thread was addressed to legal questions regarding certain legislative and judicial intent, which is more the type of subject that is useful in this discussion, than going off onto COMSEC techniques.
If it's merely an execution order, "Climb Mount Niitaka" worked well enough.
While I do not believe the apparent CDR intercepts were legal, since they could have been made legal without going to the FISA Court, this isn't the place to go into the potential benefits or not of data mining. The issues I'm concerned about here are legality, contempt for the Constitution, and refusal to submit to checks and balances.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 17, 2007 7:19 PM | Reply | Permalink
Again, you're discussing weak encryption. That's misleading to people unfamiliar with encryption because it creates the impression the NSA has a chance of breaking strong encryption, which they don't. Which torpedos the NSA rationale for data mining to begin with.
The potential benefits of data mining are always at issue when discussing legality, on a Constitutional level.
There are obvious costs and problems with domestic surveillance which run contrary to a healthy Democracy. In this case it has no benefit to offset the damage to Democracy because the alleged goals are irrational.
That makes it fundamentally against the spirit of the Constitution and fundamentally against the spirit of American law protecting civil liberties against undue burdens.
It's no surprise it's the right wingers and worst hawks pushing for TIA. Just as right wing governments throughout history have used fear to justify surveillance and authoritarianism, and it always goes bad quickly thereafter.
December 17, 2007 7:48 PM | Reply | Permalink
I wasn't discussing encryption at all, other than giving the plain language code example that the Japanese used, unbreakably, to give the final order to attack Pearl Harbor.
Apparently, you have ego involvement in deciding what should and should not be said. I wasn't discussing weak or strong encryption, but legality. If you want to argue about your inferences about my inferences about something I didn't even say, feel free to argue with yourself.
Whether or not NSA could, or could not, get information from CDR traffic analysis is not relevant here. The issue for this thread is whether legal authority existed for the equivalent of a blanked intercept of CDRs, or, in earlier form, the pen register traps defined in the Communications Act of 1934, which allowed the Attorney General to certify that a pen register intercept was legal. In Smith vs. Maryland, the Supreme Court held there was no expectation of privacy of call records, but that was in respect to a specific line. PATRIOT Act section 206 does give roving authority for warranted taps, but, again, there is an assumption of a warrant and a specific target. Given this legislation and court decision, it is my opinion that Bush and/or NSA had no authority to do mass warrantless interception of CDRs; whether there was intelligence value to them is a separate issue.
Just as the Administration has been informed there will be a cutoff of funds to the intelligence community if there is no disclosure of what happened in the Israeli attack on Syria, I believe it is appropriate to have similar action on such things as briefing 8 members only, without expert input, on sensitive intelligence.
There is at least one proposal, by the former National Intelligence Officer for the Middle East, to create a mechanism for Congressional review of all-source intelligence, in a secure manner with appropriate expertise. I'd like to hear comments on Paul Pillar's proposal, first presented in Foreign Affairs.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 17, 2007 7:54 PM | Reply | Permalink
That was inane and wasn't what I was referring to it, but Berk's original post on weak encryption.
Apparently Berk is projecting, and falling back on his tactic of bloviating when challenged.
Anyways, my points stand.
Berk's mention of weak encryption was irrelevant and misleading about NSA capability regarding strong encryption to the unfamiliar.
Also, contrary to what Berk asserts, the issue of outcomes and mission legitimacy is fundamental to legality when domestic surveillance is considered. Domestic spying is inherently corrosive to democracy and against the spirit of the Constitution and civil liberties. So the bar must be set high for benefits, to offset it's high negatives.
Also, Berk's analysis of the relevant law is rather narrow, and misleading.
Anyone wishing to be better informed of the relevant law, and why TIA and such NSA Domestic Spying is clearly illegal, should go to:
http://www.eff.org/ and
http://www.eff.org/related/3488/blog
http://en.wikipedia.org/wiki/Electronic_Frontier_Foundation
EFF is a non-profit watchdog group and legal fund that specializes in tracking civil liberties in the digital era and is highly acclaimed for it's work having won a number of legal battles on the matters.
They have regular newsletters and BLOGS published in layman's terms.
They really should be on everyone's reading list as they're one of the most important civil liberties groups around these days and doing great work. I'm sure Feingold and other tech savvy Senators are helped by the large amount of cutting edge analysis, technical expertise, and whistle blower leaks produced by EFF.
December 17, 2007 8:23 PM | Reply | Permalink
It seems fairly clear you want to trade insults and deprecation, including areas where you don't give any details except "Berk" is misleading.
It should be fairly obvious that whenever you are challenged on substance, you fall back on your apparent psychic abilities, and ad hominems:
I have no intention of engaging in ego games with you, as you aren't worth my time.
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 17, 2007 8:44 PM | Reply | Permalink
Actually, Berk just started the ad homs and is being a complete hypocrite with the righteous indignation. Which is his MO of course.
He typically gets his shorts in a bunch when his technical knowledge is challenged, which is unfortunate, considering how often he over reaches and likes to play the expert. Then he gets insulting. Then cries foul when called on it. SOS.
December 17, 2007 9:07 PM | Reply | Permalink
Chill out guys, everyone stopped caring about 6 posts ago. You both think it was illegal, so now can't we just hold hands and sing a song or something?
December 18, 2007 7:47 AM | Reply | Permalink
Thank you. Given the guest poster is not an engineer, I would like to try to concentrate on the policy and legal aspects.
Unfortunately, there are vaguenesses in the law and a relevant SCOTUS ruling that, I believe, need to be made clear in new legislation. As is common with technology, the law doesn't always keep up with what is possible, if not necessarily desirable.
Part of the problem is that even if the Administration were completely forthcoming, there are flaws in the Congressional oversight process. While the technical details aren't critical at that level, some broad policy questions do need to be addressed:
--
Howard
*equal opportunity offense to both extremes*
"Those who cannot remember the past are condemned to repeat it" [George Santayana]
December 18, 2007 8:05 AM | Reply | Permalink
No, that's just simply factually false. And you keep repeating that falsehood which is a common, but totally incorrect, meme on Rt Wing sites and being put out by the RNC.
FISA regulates electronic surveillance. From the actual text of FISA :
http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001801----000-.html
(f) “Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Clearly ATT's wire tapping Internet and phone communication for the NSA is electronic surveillance under FISA, and requires a warrant.
December 20, 2007 2:25 AM | Reply | Permalink
You have told others to read what you write before answering. I really wish you would enter into discussion, rather than charging into how I am misleading people -- when I am trying to be clear. If you have some ego problem here, I give up.
which the Supreme Court said, in Smith vs. Maryland, is not reasonable to expect in call records. I personally think the Court is wrong, and I'd like to be talking about legislation that makes it absolutely clear:
December 20, 2007 9:53 AM | Reply | Permalink
In fact, anyone from the EFF would be a great regular contributor to TPM. Have they been invited? They should be.
Getting TPMC readers up to date on tech issues and civil liberties, Net Neutrality, NSA spying, and so on, in layman's terms, straight from the EFF, would be awesome. May as well get informed from the best of the best.
December 17, 2007 8:27 PM | Reply | Permalink
And it's worth pointing out that the issue is not just "NSA CDR traffic analysis" as Berk has claimed. That is fundamentally a misstatement of the problem and misunderstanding of relevant law.
From the EFF, the group which has spearheaded the matter, provided the whistleblower leaks, and is prosecuting lawsuits:
http://www.eff.org/issues/nsa-spying
****
Some other bits on TIA. The program goals were not just to collect "CDR traffic analysis" but to open and real email, tap phones, and collect consumer data from the private sector on things like book sales and movie rentals.
The plan was always that businesses favoring Republican deregulation, and themselves fond of data mining, would be happy to cooperate in a quid pro quo for legislation. As we see for example, Republicans have been pushing a lot of legislation favored by Telecoms, like the effort to end Net Neutrality. And of course the Telecoms have a huge lobby.
Historically such domestic surveillance has been abused and tends to be ideologically very right wing. Certainly in this case the Bush administration and the companies involved are very right wing. Verizon and ATT are known to lobby heavily for deregulation, duopolist, and heavily Rt Wing Republican.
TIA was run by Poindexter of all people, of Iran Contra fame, convicted felon of conspiracy, obstruction of justice, perjury, defrauding the government, and the alteration and destruction of evidence pertaining to the Iran-Contra Affair.
TIA appears to have been implemented in collusion with ATT, Verizon MCI and others.
It was done on NSA's behalf, largely off the books being run in the private sector, bypassing FISA, and if the allegations are correct, was clearly illegal and done in secret from the People and Congressional oversight.
Also, it's worth noting not all companies cooperated with NSA's illegal requests. T-Mobile (a European company) refused to comply without a warrant in accordance with FISA and American law.
December 18, 2007 4:41 AM | Reply | Permalink
Whew! Great discussion except for some of the avoidable excesses. I'm glad I sparked it because I learned a lot.
2 points I'd like to make:
1) my suspicion that if you (or I) can think of it there's a pretty good chance that it can or already has been done (within certain limits etc., etc., yada yada yada) This is something we should bear in mind in this larger, general discussion.
2) you guys may have missed my point though. I foresee the marketplace (all kneel before the omnipotent m.p.) exploiting the anxiety this issue is raising. First it may appear in Hammacher Schlemmer's catalog or something, then it will end up an add-on through the very telecoms who have abused us. Typical m.o.
December 18, 2007 7:38 AM | Reply | Permalink
Thanks for this. It doesn't go far enough, but thanks.
It's amazing to me that we're debating whether or not to immunize lawbreakers. That the telecom companies were responsible for not sharing private user data without a court warrant has been the law for a very long time. There is no "But the NSA asked for it," exception. Immunizing these companies from the consequences of breaking the law should never have been on the table.
Further, congress should be seeking out wrongdoers from both government and private industry. It's amazing to me that we're talking about immunity at a time where we should be seeing congressional hearings trying to determine who broke what laws and when an independent prosecutor should be bringing people up on criminal charges.
That customers of AT&T, Verizon and other telecom companies have the right to know if their data was illegally given to the government, and the right to compensation if it was, isn't even debatable.
Amazingly, these programs are ongoing. They were not halted after they were publicly revealed years ago.
So yes, preserve people's right to use the courts to enforce the law. But also stop the spying and start the process of sending people from both private industry and the government to jail.
thosethingswesay.blogspot.com
December 17, 2007 6:56 AM | Reply | Permalink
Senator,
I couldn't agree more with you on all your points, particularly that it is time for the US Senate (and the Democrats in the Senate especially) to stand up for the rule of law. My question for you is this: why is this even a debate?
Clearly we have a lawless group of thugs running the US Administration who asked for and received the clearly illegal participation of most, if not all, major telecom companies in this country yet the leadership of the Democratic Party, without even a remotely plausible pretense, allows this pro-lawlessness bill to brought to the floor instead of the bill the Judiciary committee reported.
On the heels of yet another capitulation to the Republicans over funding the war and the months and months of weakness displayed by Democrats with respect to the obstructionist program of the Republican Party in the Senate, how are your Democratic colleagues able to get away with this utter betrayal of our values, the Constitution and the values the citizens (if not the Senators) still hold dear? This is not simply a case of Republicans forcing their will on the Senate. This situation would not and could not occur without the cooperation of Democrats, especially the timorous and ineffective leadership of Senate Democrats.
I am shocked, horrified and sickened by the collapse of integrity and leadership that so many Democrats have displayed in the face of the tyranny the Bush regime and their lackies in Congress are implementing. This case of weakness and cooperation with evil is so pathetic and egregious it is beyond contempt.
Please continue to fight those who threaten our republic and trample our freedoms, but please also stop being so polite to them. It only provides cover for cowards. Call out the Democrats who are cooperating with the tyrants for their collaborationist position and lack of moral, ethical or political integrity. Only if you and other Democrats do so will it be made clear to the public that the corruption of Washington has not only infected the Republican Party, but it has clearly metastisized to some Democrats too and threatens the very basis upon which the founders established our form of government.
Fight em! We're counting on you!
December 17, 2007 6:59 AM | Reply | Permalink
It is the corrupt and cowardly Democratic Leadership again.
Look folks, the telecom lobby (the regional monopolies, now the backbone carrier duopoly plus the CWA) provide pervasive and intimate support to Democratic lawmakers. Even without spying, they know more about the travel, nepotism, fake charities, and on an on of each and every office-holder.
Unless the Democratic leadership go along with their demands, they can unleash something like the House Banking scandal.
It is, thus, by priviliging monopoly over industry and indirect over progressive taxation, that Democrats opened themselves up to routine blackmail well before the policy state arrived.
Now, the Senators are dragging down the whole ticket.
::JRBehrman
December 17, 2007 7:01 AM | Reply | Permalink
Senator, thank you for your efforts in the Senate on behalf of not only your constituents, but all of us.
I've been a member of the Democratic party from my first voter registration, and that said, I don't hold out much hope that the current House and Senate Democratic leadership will do more than give Cheney / Bush, and large corporate sponsors, whatever they want whenever they want it.
I feel less and less that the party speaks for me any longer -- and after Senator Reid and other Democrats in the Senate finish giving up more of our rights around this issue, and others, I'll feel it speaks for me even less.
December 17, 2007 7:03 AM | Reply | Permalink
Thanks, Senator.
December 17, 2007 7:29 AM | Reply | Permalink
Russ Feingold!! Wow. Andrew's been on the job (as usual).
Russ Feingold stood tall on civil rights long ago and was not supported by his fellow Dem senators. They hung him out to dry. I was so impressed that, on another blogsite, I published a "Feingold For President" petition.
Go Russ.
ecotourism
WeGoEco.com
December 17, 2007 7:36 AM | Reply | Permalink
Thank you, Senator.
Speaking as a networking engineer, there is a constant race among legitimate (warranted) law enforcement, new technologies, legitimate foreign intelligence, and inappropriate warrantless interception. There's a military saying that quantity has a quality of its own, and that's not irrelevant here: some of the legislation in existence assumed, either with warrants or another approval mechanism, that communications interception (of all technical types) would be approved or otherwise allowed on essentially a case-by-case basis.
Any new legislation has to deal not only with the rules pertaining to a person or a telephone number, but to bulk interception of either calling records or call content.
The Communications Act of 1934, for example, has a provision for "pen register" taps, which are legal either with a warrant, or written certification of the Attorney General that the tap is justified. Pen registers proper are obsolete, but their function lives on in Call Detail Records (CDR), which record the caller, callee, and date and time of call. SMITH v. MARYLAND, 442 U.S. 735 (1979) held there was no expectation of privacy for call records.
SMITH v. MARYLAND, however, held that a call detail/pen register interception did not require a warrant, but it also dealt with interception of a single individual's call. I am unaware of any legislation or decisions that speak to blanket interception of all activity at a given physical point.
The Communications Assistance to Law Enforcement Act of 1994 (CALEA) was passed as a response to technical changes in telephone technology. Essentially, it dealt with the reality, in modern telephone switches, that there is no longer a specific "wire" to tap for a call. Software in the switch has to find the "time slot" in a channel carrying thousands of calls, and copy the call for which there is a warrant. CALEA interfaces are required on telephone switches, but their purpose is invariably for lawful interception.
Section 206 of the PATRIOT Act dealt with another technical problem. Under the Communications Act of 1934, and also CALEA, the assumption was the warranted surveillance was directed to a specific telephone number. With devices such as throwaway cell phones, and the ability of private and public telephone switches to forward calls to new numbers, Section 206 permitted [warranted] "roving surveillance" against a [named] person rather than a telephone number. Again, this assumed court monitoring and reflected some true technical changes.
While there has been no detailed description, in the open literature, of what NSA was doing in San Francisco, there is a general industry suspicion that they were capturing all Call Detail Records, rather than the content of all calls, a much simpler technical problem. We have no legal guidance beyond SMITH vs. MARYLAND to determine if intercepting all information (call detail or call content) at a given location(s) is covered by existing law.
--
Howard C. Berkowitz
December 17, 2007 7:48 AM | Reply | Permalink
Howard for President!
December 17, 2007 8:05 AM | Reply | Permalink
That analysis of the pertinent law is just wrong. It sounds informative to the uninformed, hence the ratings I guess, but those aren't the relevant legal issues at all.
That is totally missing the main issue, a smoke screen. Opening and reading emails, and tapping calls, are among the known issues at stake. None of which is legal. Additionally, there may be other companies not yet investigated who were doing a wide range of other data mining for the Bush Admin, all off the books and well hidden from oversight. There have been other cases of consumer data in the private sector being sold the to the Bush Admin for cash and quid pro quo legislation from pro-Republican companies.
That is just flat wrong. From the EFF, the leading authority on the matter:
http://www.eff.org/issues/nsa-spying
Again, from the EFF, the leading authority on the subject and the legal fund prosecuting the major cases:
December 17, 2007 9:38 PM | Reply | Permalink
Thanks for posting this. I think mobilizing the public to help you is exactly the right way to go. I also think you would be more effective if you spell out exactly how the public can help you on such issues. There is always CSPAN if you are looking for a megaphone.
However, unlike many of the posters on this thread, I do not believe the Democrats often reluctantly give the Republicans what they want, cow to the Republicans or otherwise lose fights they are actually fighting. I believe that both parties work together in unspoken ways on many issues—often issues that make the people more vulnerable and the government and special interests more powerful.
You all know good and well when a bill’s teeth will be removed before it hits the books. You also often know in advance when a bill is sure to be defeated but is proposed for show and merely to make you look like you are doing something .
We need some patriotic leaders in Congress who are willing to expose this collusion. Why don’t a group of patriots from both parties form a coalition and change over to the independent party or something? We obviously need some reps capable of more effective strategic thinking.
I’ve got no more patience for what you are trying to do, what you coulda, woulda, shoulda have done, or what you plan to do one day n the infinite future.
I’m holding members of Congress to the same standard that the rest of us are held to when we go to work each day: results. Show me the money! (Not special interest money; show me that our tax money that pays your salaries is going to good use and you are able to produce!)
It all sounds so reasonable, but some would say “the deck is stacked” against you because you like it that way and want an excuse when failure meets yet another “attempt” to do something for the good of the country.
December 17, 2007 7:49 AM | Reply | Permalink
Senator Feingold has been one of the only people in Washington who has consistently put his ass on the line to protect your civil rights. Over and over again he has made his commitment to the Constitution and to the rule of law VERY clear, and he has shown that he is not afraid to stand alone when the other members of our legislature have lost their integrity and courage.
Before you paint this Senator with your broad, angry brush, I'd suggest doing a little research. Senator Feingold's voting record and commentary on the PATRIOT act and it's iterations would be a fine place to start.
December 17, 2007 7:53 AM | Reply | Permalink
Souch,
You're not a very careful reader apparently.
I see no criticism of the Senator on this thread. Reece was criticizing Democrats in the Senate, not Senator Feingold. You need to take more care before misinterpreting what people write and then firing off your 1 and 2 ratings.
December 17, 2007 7:56 AM | Reply | Permalink
oleeb,
Sorry for hurting your feelings. I guess in my haste I missed the subtle yet revolutionary subtext of your three-word post. Please forgive my egregious abuse of the ratings system.
If you have the time, please consider CAREFULLY reading the post that precedes mine. Though you are correctly inferring that I was responding to Reece, your assertion that this thread is criticism free could be viewed as, well, careless by some.
December 17, 2007 12:07 PM | Reply | Permalink
You got it wrong pal--by a lot. Read what people write before you shell out low ratings.
December 19, 2007 12:24 AM | Reply | Permalink
Senator,
I look at a number of Democrats in the Senate and the House and I ask myself; "Why is this person a Democrat?"
On an issue as important as this, I sadly say; this vote will show how deeply many Democrats are, along with their Republican counterparts, in bed with the boys in the corporate boardrooms.
What does that bode for about 85/90% of the public?
December 17, 2007 8:04 AM | Reply | Permalink
Dear Senator, You make no mention of the much talked about Filibuster Sen. Dodd has promised to do. Can you tell me why it doesn't and if you plan to support said Filibuster ? Will you take your place in history and help Sen. Dodd do what should be the duty of every Democratic Party member, the protecting of Americans Civil Rights ? Without this information everything else is just more talk, and eventual capitulation after some posturing.
I eagerly await your answer to this most important part.
December 17, 2007 8:15 AM | Reply | Permalink
Actually, he does mention it in passing when he mentions the cloture vote. In the cloture vote, if enough Senators sign on, Dodd won't be allowed to filibuster. We need 40 other senators to support Dodd so that he can filibuster the bill.
It remains to be seen whether Harry will force Dodd to actually filibuster. To be honest, I wouldn't be surpised if he does.
December 17, 2007 9:14 AM | Reply | Permalink
Thanks Mr. Feingold, for all of your hard work, and for actually giving a crap, unlike many of your colleagues. What on Earth would it take to un-seat Mr. Reid from his position, is my main question? I can hardly imagine someone being less effective in that role. Every step of the way Mr. Reid has fought for the wrong side on this particular issue. To what degree are fellow Dems. complicit in this warrantless domestic spying issue, and in combination, the use of private companies to aid in and conduct government sponsored data-mining? We all know now that they have been complicit in allowing George Bush to use torture and failed to fight properly against it as a result. How difficult are the corporate Dems who support these kinds of big-brother inspired social control measures making it for actual humans like yourself to get the right message across and do the right thing?
December 17, 2007 8:40 AM | Reply | Permalink
CrankyDom - Anyone who has been paying att