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EFF Sues AT&T Over NSA Wiretapping
Omega1045 writes "Cory Doctorow over at BoingBoing is reporting that the Electronic Frontier Foundation has just filed a lawsuit against AT&T for helping the National Security Agency execute illegal warrant-less wiretaps against American citizens.
From the article: 'The lawsuits alleges that AT&T Corp. has opened its key telecommunications facilities and databases to direct access by the NSA and/or other government agencies, thereby disclosing to the government the contents of its customers' communications as well as detailed communications records about millions of its customers, including the lawsuit's class members.'"
thousands confused...
the preceding comment is my own and in no way reflects the opinion of the Joint Chiefs of Staff
EFF is my BFF.
This will definitely be an interesting story to follow. This will put companies on the defensive for complying with any illegal acts by the government. Some say you can't sue the government, but you sure as hell can sue the people who comply with illegal acts. Why didn't I think about that angle? I just assumed they tapped the communications in some way that circumvented the companies...
Comment removed based on user account deletion
What would have happened to AT&T if they had not complied with the demands of government agencies?
"What'd they say?"
"Said they're gonna sue AT&T."
"Why?"
"Dunno, probably because AT&T let's us wiretap illegally."
"What're they saying now?"
"Something about their line is probably even now being bugged."
"Harsh!"
A feeling of having made the same mistake before: Deja Foobar
EFF Sues AT&T Over NSA Wiretapping
OMG!
Uh, no. Congress did not grant this power explicitly. Congress allowed military action. And from what I've heard, they are spinning this to mean that domestic wiretaps are okay. Here's the problem:
They already have the power to do these things without a warrant so long as they go back and get the warrant within 72 hours. This gives them the ability to act on a lead immediately without the hassle of waiting on a judge. They don't want to do even THAT much -- they want whatever they are doing to be SECRET and to be UNACCOUNTABLE for it. Ultimately, I believe we will find that it is going well beyond communications where one side is 'al qaeda' and the other side is in the U.S. I think if we get to see what they are REALLY doing, we'll find investigations against anti-war and anti-Bush organizations and their members.
Maybe they haven't yet perfected undersea cable interception.
Where are those laser guided sharks when you need them?
Aren't you supposed to be preparing for your speech tonight?
A feeling of having made the same mistake before: Deja Foobar
You cant just ignore something and hope it goes away, they are fighting the good fight within the system .. and are losing some ground, but I dont see anyone else trying as hard.
Do nothing. Roll over. Keep quiet. Don't stick your neck out. Hunker down. Give up. Deal with it. Surrender. Comply.
Is that what you'd recommend in the face of arrogance and tyranny?
.. get better when nobody bothers to object?
When has that ever happened?
Laws against warrantless spying on US citizens exist for a reason. History demonstrates that when the government has this power, they don't just use it on terrorists. First they use it on terrorists, but then they use it on drug dealers. Next come child pornographers. After that, conventional pornographers. Then, "radical" artists and dissidents.
Before long, they're spying on the modern-day heirs to the radical legacy of Martin Luther King and John Lennon.
All that is necessary for evil to succeed is good men do nothing.
I'd rather they kept plugging away, regardless of losses. If there's one less soldier on your side, it's all the more likely the other side will prevail.
A feeling of having made the same mistake before: Deja Foobar
The text of the EFF lawsuit requests damages of $100 per day for each day the violation occurred or $10,000 (whichever is greater) be paid to each class member. Sure beats getting a coupon for $10 off our next purchase of a bill of rights.
Seth
$5 / month hosted VPS on linux = awesome!
It's a valid assertion. "I was just following orders," has long been regarded as no defense. It'll be interesting to see how this turns out.
Schwab
Editor, A1-AAA AmeriCaptions
How about directly linking to the article, rather than bouncing through a portal full of ads?
http://www.eff.org/legal/cases/att/
Seems like BoingBoing.com is trolling for hits with several recent articles. I suppose there's nothing wrong with that, but I'd wish the Slashdot editors to prefer primary content to secondary sources being framed within ad bars on all sides....
"The human race's favorite method for being in control of the facts is to ignore them." -Celia Green
They have been spying on the Quakers, for fuck's sake. You know - the Protestant sect best known for militant PACIFICISM?!??
This is the litmus test for true American Patriotism. If you aren't outraged, you aren't a patriot. At best, you are a nationalist.
Just like a citizen who is not guilty of any crimes should welcome the friendly government agent asking for his papers, if AT&T is innocent they should welcome this. If they have not been breaking laws by complying with the NSA, then they have nothing to fear. Should AT&T attempt to fight this, it must be because they are definitely guilty of violating laws.
The problem is that to determine if there is probable cause for arrest, they're intruding on the privacy of everyone else by searching through databases containing innocent phone conversations and private information. They did not have probable cause to search through this other information. That is where the main issue lies; the privacy and security of everyone is being compromised to seek out the few that have done something wrong.
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
Just say "I'm a sex bomb". Your call will be recorded -> keyword match. Then you can pass any message you want to the governement, at least someone will be listening.
The Alternative is called picking your battles. The EFF is taking a Hail Mary pass approach to it's lawsuits. Sure taking on AT&T looks great and gets you a lot of press but you're just not going to win unless they make a huge tactical error.
Instead you take a page from the *IAA Big Book o' Lawsuits. Go after the bottom of the food chain (Grokster anyone?). Find cases where smaller independant or regional telecoms/isps have given up data, and go after them, building precedent to use for later cases.
It's kind of sad. I once had a Biz Law class and when the prof (JD) asked the class if the folks who are arrested for "terrorism" deserve due process, the only people who raised their hands were the Naturalized citizens and me - born 'N raised AMerican - Fuck Yeah! The prof asked the few who raised their hands what their background was - that's how we knew they were naturalized. Sad.
Jeez, a couple weeks of Doublespeak ("terrorist surviellance program") and a whole bunch of people forget what the hubbub is all about.
+&x
When the result is a loss, yes it does. It sets legal precedent which will be cited in future cases.
From what I've read, there isn't much real knowledge of the NSA program. There is quite a bit of speculation though. We do not know if it was US Citizens, it may only be US Persons, or people simply living in the US and are not citizens. We do no know if it is real taps, or simple data mining. Data mining as in connecting the dots between known enemy phone numbers and connected calls inside the US. Since the administration apparently still used the FISA court in some cases, some have speculated that once enough dots were connected FISA would have to get involved so that calls could be monitored and recorded. Then again, why would it be illegal for the Commander in Chief to order taps on known enemies on the battlefield (the US is part of the battlefield)?
For a history of how the US government dealt with communication during wars, read up on Ben Franklin on the NSA web site. Interesting reading.
That clinches it... I have thought about contributing before, but this clinches it. I'm going to join.
you had me at #!
It's not at all clear that AT&T has done something illegal, if for no other reason than if they had, this lawsuit would not be necessary. The whole point of a lawsuit, after all, is to try to prove that somebody did something illegal. In fact, if the EFF loses this case, it will establish a precedent that what AT&T did is not illegal.
/. account, I hope that the EFF does lose this suit, thus bolstering Bush's case for Executive freedom of action in military matters during wartime (subject to initial Legislative approval, of course).
But even beyond that, the matter is highly controversial and hotly debated. There's the question of the extent of the Executive's power to conduct military operations during wartime. There's the question of whether or not the definition of "military operations" includes intelligence-gathering operations conducted by the Executive. There's the question of the wisdom of arbitrarily curbing the Executive's constituional authority, which would make it more difficult for the Executive to fulfill its constitutional responsiblities.
And these are just a few of the more interesting (to me) questions of principle. There's also the practical questions: how much of what's being said about this issue is FUD from partisans, extremists, the media-industrial complex, etc.
Then there's the technical questions: You raid a cell in Pakistan, find a U.S. phone number on a computer there. In criminal justice terms, that's not probable cause to tap a phone line. What do you do? Give up? Hope that number doesn't reach an active cell planning to smuggle an Iranian suitcase nuke across the Mexican border? Or do you say, I'm Executive, the Constitution gives me the responsibility to do whatever I can and whatever I need to do to protect the country in time of war, and Congress has told me this is a time of war, so tap that fucker and let's see what's up?
Now, I admit that the responsible answer to that question depends a lot on the answers to the preceding questions. My point is that there is no consensus on the preceding questions, and therefore it's not at all obvious that AT&T did anything illegal.
There's nothing wrong with suing a company allegedly did something "obviously illegal". There is a problem with suing a company that did something not obviously illegal, and losing the suit. The problem is that this sets a precedent whereby the not obviously illegal act becomes obviously legal. This would be the oppsite of a Good Thing.
Personally, having forgotten to get fitted for a tinfoil beanie when I signed up for my
Any sufficiently well-organized community is indistinguishable from Government.
This arguement is common and dangerous. Not only do unlimited wiretaps destroy our privacy they destroy our anonymity. Free speech means I can communicate over any medium and say anything I want. Including criticism of the current government. In the private sphere of my house I cannot be prosecuted for ANYTHING I say. But these days, the Patriot Act and other dubious pieces of legislation allow the government to hold me without cause, brand me a terrorist and destroy my life. AT&T is now making that even easier, I'm not sure the best way of protecting your people and a way of life lies in destroying that which makes it free. I'm sure the American Revolution would never have happened if gov't had known about it.
All your database are belong to us
The Constitution does not allow for warrantless searches. Read the fourth amendment, it is pretty clear. This means that the president does not have the power to order them and the congress does not have the power to permit them.
A blog about stuff.
Ok, so I didn't comment when slashdot linked to the troll at the Register who likes to berate the EFF with false claims that we lose all the time, but since they are simply not true, it would be nice if people would check into that before repeating them, ok? This poster seems to claim there was some sort of big recent loss by the EFF, which is similar in pattern to the troll articles that cited lost cases that were not by the EFF to support the strange idea the EFF loses all the time. (There was a recent loss in case case personally brought and funded by John Gilmore, an EFF board member, in which the EFF itself had no involvement, and I presume that's what's being alluded to here.)
Bad enough I'm feeding the troll here, but please, don't repeat the trolls, that gets them really excited.
Has it been over a year since you last donated to the Electronic Frontier Foundation
Short answer, no.
Long answer, even if you have cause, *to wiretap, you need a warrant*. A warrant which is really, really easy to get, can be obtained after the wiretap is done in most cases.
This is the reason why even right-wing folks are having a hard time swallowing this whopper. The only reason that makes sense to anyone for doing this type of work in a secret program without asking for judicial approval is that they're doing something fundamentally wrong, like spying on domestic citizens without discrimination, i.e. no ( reasonably, possible ) probable cause. Most likely, they're casting the net really, really wide... I'm not sure we should buy the "only calls originating outside the U.S." statement, but even in that case, uh, are they monitoring *all* calls from outside the U.S. ? That wouldn't fall under the guidelines, sorry... but it might be possible to get a huge number of warrants every day for all of the calls you actually monitored. The only issue is that it *could* get out that you're doing that ( FISA lets us know how many such warrants are issued ), people would complain that you're wasting resources/invading privacy, and terrorists would stop making phone calls into the U.S., defeating the program. Really, though, if they weren't doing something wrong, it wouldn't be secret, it's that simple. Also, think about it for a minute : if it was something G.W. thought Congress ( and the public ) would approve of, he could get the autorization needed, right ?
If the issue is really calls originating from outside the U.S., and the current law leaves the legality of tapping those calls when they connect in the states in doubt, how hard would it be for some PATRIOT rider to explicitly authorize that? Somehow, I and plenty of other critical thinking people don't believe that's the reason this program is secret and avoids the judicial review rubber-stamp process we've set up.
The whole "probable cause" thing AFAIK ( IANAL, either ) is a slippery-slope type argument along the lines of "any reasonable judge anywhere would give you a warrant ( given the obvious evidence), so you can act as if you have one in this case"... but I've only ever heard of it applied in cases of searches where clear evidence is present ( though the definition of "clear" has been getting lower and lower ), and in cases where it's abused, the searching law officer can open themselves up to charges or, more often, end up with evidence being thrown out as a result of unlawful search ( again, this happens less and less ).
My best guess ( without knowing how the secret program operated ) is that they're randomly intercepting any and all foreign-routed calls ( and maybe others ), in such a way that even the most pro-government judge would hesitate to authorize so many unfocused, unfounded wiretaps, and for whatever reason, they decided that asking Congress for permission to do what they wanted either wasn't needed or wouldn't work. They're claiming it's not needed, but they might only be right with Alito on the supreme court... which I guess does make this whole thing a bit of a moot point. It's not like the administration is going to be punished for doing *anything* wrong, no matter what it is, now...
The "If you're doing nothing wrong, then you have nothing to worry about" position is completely correct, but you would be foolish to apply this maxim to any living person. Everyone does things wrong, everyone has something to hide, and everyone is a criminal. It's time that we recognized this in our public discourse instead of pretending.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Nowhere within the delegated powers does it say the president can violate
the 4th amendment. There is zippo, zero, nada authority to do so.
If we go with your rationalization, we are in a war with no clear enemy, no clear objective, no clear ending. This means we are effectively in a perpetual war. It also means that every president is effectively above the law until the war ends. As much as I detest Hilary Clinton, I hope to god she becomes president just to watch all the neo-cons squirm as she abuses the powers they have given bush.
Even if we assume that this :
"That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons" is his justification, guess what?
Congress HAS NO LEGAL AUTHORITY to give the president the power to suspend the 4th amendment.
The only way either Congress or Bush can do so is to amend the constitution to allow it.
Regarding your last point :
"I want the President taking the necessary step of surveiling our active stated enemies in order to have a shot at preventing the nutcases from taking another 9/11-esque shot at me and mine. I don't see how it can be any other way, given the state of the world."
Simple, stop poking our nose in other countries business. I bet you that Americans would react violently if the chinese had replaced our government with a new one (after they supervised the elections). Terrorism does not happen in a vacuum. It happens because our government is playing empire in someone elses land.
Service guarantees Citizenship! Questions Guarantee GITMO.... Amerika Uber Alles!
Let me tell you two reasons to fear the side-stepping of FISA courts both dealing with the already scary nature of the secret courts. The first is that of about 19,000 applications for permission to wiretap from 1979-2004 only four have ever been rejected by the court. Obviously, in legitimate cases of security issues, the FISA court doesn't stand much in the way.
The second reason is that according to 50 U.S.C. Sec. 1805(f)(2), the Attorney General has up to 72 hours after starting wiretapping to get approval. If they get a legitimate hot tip, then they can start tapping immediately and get approval afterwards. If not approved, then the evidence can't be used in court but as mentioned above only 4 applications have ever been rejected.
Given that FISA extremely rarely rejects requests put before it and that you don't have to get permission before you can start, there are only two reasons possible why Bush doesn't want to go to the court.
Lastly, the President was NOT authorized by Congress to do this under any legitimate interpretation. He was given authority to use force against terrorists. He was not given authority to wipe his rear end with the 4th and 6th Amendments like he claims he is. If it even were possible for Congress to authorize this, then there are effectively no limits on what powers he may assume.
Incidentally, regardless of your stance for or against abortion, the limits of executive power is the number one reason to give a damn about Judge Alito. The man is a fascist who does not accept any reasonable limits on executive power and police power. Just look at two of his rulings. (1 2) (But hey, we can always rely on the media to cover the important stuff like his equivocation on abortion and the padding of his resume with an elitist, racist group, right?)
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
The administration is being extremely sneaky with their words. You have to realize that there are at least 3 seperate sets of actions being discussed:
Notice how they describe this as 'terrorism survelience'. They say, they want to know when 'al-Qaida' calls. The problem is, from a constitutional perspective, the only way they can claim that 'al-Qaida' is calling is if the call originates from the US penal system.
What they really seem to be doing is monitoring calls from: "Might be al-Qaida" to "Less likely to be al-Qaida".
The gotcha is, everybody in the USA fits somewhere in this range, AND they have discarded all the legislative and judical safeguards.
Don't worry. As long as you can rat out 3 other 'terrorists' when they come for you, you will get off easy...
Miles
Taking a view of who wins and loses these lawsuits is a very myopic view, IMO. In the end, it is not who wins and looses but the precidents that are established, and these are often far more moderate than a simple loss might suggest.
For example, how many here actually went out and read the Supreme Court's opinion in the Grokster case? I did. And I was struck by how this was a real victory for the technology industry for two reasons:
1) The Supreme Court refused to revisit the Betamax precident.
2) The Supreme Court only allowed one to look for liability based on active inducement, so while this might not protect Grokster, Kazaa, etc who build their business models around the premise that people are going to violate copyrights, it does protect BitTorrent and others who build their business models arround legal uses of the technology. IMO, Betamax really wasn't intended to protect those who, in bad faith, actively encourage copyright infringement.
So while Grokster lost the appeal to the Supreme Court, the EFF did us all a service in helping to ensure that the previous precidents protecting our ability to invent new technologies and communiciations media continued to stand.
So you can't just look at raw numbers as to who the final judgements favored. You really have to read the opinions. The EFF is doing us all a great service in their representation. It is unfair to characterize them as harmful.
LedgerSMB: Open source Accounting/ERP
You know, I agree with this up to the point that there was an already existing method for obtaining authorization *after the fact*. By neglecting to take that step, it has offended even people like me who believe in executive power during times of crisis.
The existing methods were put in place to create a paper trail of what was being done, and it is clear that paper trail was an unwanted nuisance. *That* is what ticks me off, not that they follow up on leads. Nothing in the law would have prevented those wiretaps and there would be little heat if the president would simply follow established, auditable procedures.
The suit likewise is going after the idea that AT&T opened the networks up far beyond the requirements (and potentially legal bounds) of a normal, legal wiretap. I have no idea if they did or didn't do that.
Sig under construction since 1998.
"But even beyond that, the matter is highly controversial and hotly debated. There's the question of the extent of the Executive's power to conduct military operations during wartime."
The matter is controversial, and there's no denying it's being hotly debated. The issues of law, however, are not so tenuous as you seem to think. Every argument that the White House has offered has been quite thoroughly refuted. About the simplest and clearest summary of these arguments can be found in Al Gore's speech on MLK day. And before anyone screams 'bias!': read the speech and weigh his statements on their merits. I'm not asking you to buy his conclusions, I'm asking you to consider his arguments and draw your own conclusions.
"You raid a cell in Pakistan, find a U.S. phone number on a computer there. In criminal justice terms, that's not probable cause to tap a phone line."
That almost certainly is probable cause, and because it's an espionage- and national security-related issue, the FISA court could readily be expected to issue a warrant for this.
In terms of spying on Americans, however, there must be a warrant. Article 4 of the constitution asserts this.
With regards to whatever 'War powers' the president might or might not have, he was explicitly denied the exercise of those powers in the US by Congress. When the White House asked the House to explicitly place US territory within the scope of the bill giving the president the right to use all means necessary, they refused. This is a matter of public record. It is therefore proven that Congress authorised no such program, and the warrant-less surveillance of individuals on US soil is illegal and unconstitutional.
Again, you're right to say that the issue of whether the president should conduct unwarranted surveillance on US soil is controversial and hotly debated. The issue of whether it is legal to do so today is not.
But back to the issue of whether AT&T is breaking the law - the details will have to come out before anyone can venture a reasoned opinion on this, I think. Even if AT&T's lawyers concluded that the unwarranted surveillance was illegal, they might still feel that the company had to comply with a US government order.
Crumb's Corollary: Never bring a knife to a bun fight.
I don't which is sadder: his comment or the fact that he was modded to +5.
Vote
"I'd rather be a lightning rod than a seismometer." -Ken Kesey
'If you're doing nothing wrong then you have nothing to worry about" is not completely correct. I'm doing nothing wrong, but I nevertheless worry about the government doing something wrong. Governments exists to increase their power -- at the expense of freedom. Therefore, government should be limited wherever and whenever possible.
whoosh. You'll need to jump higher to catch those over your head shots.
This is pure genius because it utilizes such a simple, basic concept: accountability.
Every group or individual has an ethical responsibility to do no harm to others. If someone asks you to do something harmful to someone, and you choose to carry out their request, you are responsible, period.
Bravo to the EFF for this creative, yet totally legitimate, approach.
As a Microsoft employee, I already donate to the EFF year-round through the company's charitable giving campaign (and the part that really tickles me is that Microsoft matches whatever amount an employee contributes to any organization, so I'm getting Microsoft to help fund the EFF), but I may very well increase my donation amount during the next cycle. The EFF keeps fighting for the right positions when no one else is there to stand up and fight for them.
Moderator hint: a comment is neither "Flamebait" nor "Troll" if it is true.
What if they're tapping less phone lines, but more of the important ones?
By definition, if they are important, then they've got probable cause. Else how do they know they are important?
Besides, what kind of a colossal fuckup would it be if someone did detonate an Iranian suitcase nuke in San Diego,
And what a colossal fuckup it would be if the information to stop 9/11 was already recorded by agents in the field, reported and filed on FBI computers but nobody noticed?
Oh yeah, it was.
You demonstrate a profound lack of understanding about how security works. It is impossible to follow up on every diddly little lead. There are not enough resources to cover everything. So you prioritize and work the leads with the highest probability of yielding results. To do otherwise is to ignore the obviously good leads in favor of chasing your tail. The leads that have high-probability of yielding results are, by definition, those for which there is probable cause.
You advocate ignoring good security principles in favor of something akin to throwing darts.
In which case you have roughly no security at all.
The whole point of a lawsuit, after all, is to try to prove that somebody did something illegal. In fact, if the EFF loses this case, it will establish a precedent that what AT&T did is not illegal.
Go on, go on... I know you can do it! The next logical step is... If the EFF /wins/ this case, it establishes what AT&T did was illegal! And possibly even the order itself! Maybe that's what the EFF is trying to do! Now you can argue that they do not have the track record to do this, but I can't see how you miss the whole point of their lawsuit... and get modded +5.
There's the question of the wisdom of arbitrarily curbing the Executive's constituional authority, which would make it more difficult for the Executive to fulfill its constitutional responsiblities.
Nothing arbitrary about it. Either the Executive has that power, or not. The courts tend to decide such matters. You seem to be trying to create grey areas where there are none. And dropping the word "constitutional" repeatedly in your statement seemingly supporting the Executive tapping whoever they want does not show it has that power. What next, the Executive can do whatever they want, no balances, no protections, no laws?
I hope that the EFF does lose this suit, thus bolstering Bush's case for Executive freedom of action in military matters during wartime
Oh good god, that /is/ what you're "arguing"! Sad when statements like these come from Americans, and then we tell the rest of the world that we're going to teach them how to run Republics, and what freedom is about. So the prez can tap whoever he likes without court approval? How about jail whoever he likes (if he calls them terrorists, of course)? Indefinitely? And as this DOJ has argued, these terrorists will just use lawyers to pass messages to other terrorists, so we deny them lawyers, too? In fact, we can't let anyone know we have them, so we take them in secret, and don't even admit we have them (of course, real terrorists would notice that their operatives have been "disappeared"... but don't confuse me with logic!). You know what would help the war? Internment camps! Hey, worked for us before! Let's jail everyone of the ethnicity we declare war on this week (of course, war wasn't really declared... but don't stop me, I'm on a roll!), and their lawyers, and anyone else who supports these terrorists... like those kids with their anti-war signs, and their anti-Bush signs. Hell, let's jail anyone with anti-Bush signs! You either with us or against us, ya know! Why does this all sound so familiar, though? I feel like I've read this all before... Oh, right, those history books, in the chapter usually titled "The Start of Great Police States".
You raid a cell in Pakistan, find a U.S. phone number on a computer there. In criminal justice terms, that's not probable cause to tap a phone line.
Don't be silly. Of course it is. Especially with our secret, rubber-stamp FISA court. The least we can do is keep track of what the Executive is doing. What next? A secret Executive? Nevermind, don't reply, it will just depress me.
Lies about crimes
Like most people, there are issues which I take the conservative viewpoint and others where I take a more liberal view. In full disclosure, I consider myself Democrat only because I tend to lean very slightly more towards their views on certain issues than the Historical Republican Party/Grand Old Party and lean very far away from the views of "neo-conservatives"/"Grand New Party". The historical Republican Party was for individual rights and the corresponding limited government, entrepreneurship, and fiscal conservatism and to a point I would concur with these views. The neo-republican party seems to be a "do as I say not as I do" party that preaches the GOP but seems to act with an agenda of more government, fiscal irresponsibilty and caters to primarily "big business" like Walmart while mom and pop stores are pushed to the side. To get to the point, as a citizen who has a vested interest in individual rights, the individual rights to privacy and against unreasonable searches and seizures is clearly not a "party politics" issue and frankly is an offense to what the original GOP stood for.
$sys$droids
Explaining the reasoning behind Bush's position, that he and Alberto Gonzales think Congress allowed it when they passed the authorization of military force in 2001, yet that Alberto Gonzales refused to ask for legislation to amend the authorization because he knew that the legislation would not pass. Explaining that this interpretation would depend entirely on whether or not an authorization to use military force is included in the definition of a declaration of war will not make the news. Talking about Supreme Court precedents related to this, like East District of Michigan v. United States, I think it was called, would not make the news either.
The most I have ever seen any of this in the media was in a written two page report carried by the written MSNBC, with only two paragraphs of Bush's lawyers explaining about the authorization and declaration of war part, which to my knowledge did not air on the television network.
With CNN's very frequent recycling of headlines, and the bottom crawler, it is very obvious they want to be as accessable to people just tuning in as possible, trying to talk about as many current issues as possible, meaning to me that CNN is just trying to be a poorly performed version of CNN.com. The Internet, or the newspaper, if you can bother figuring out how to flip through the pages now days, will always trump TV for that reason. CNN borrows nearly all congressional footage from C-SPAN with permission, and cuts to them frequently, but it seems very, very wrong to me to advertise to watch the Alito hearings on CNN where there is a version not punctuated by advertisements and Woolf Blitzer saying, "This is the Situation Room. Stay tuned. You're watching CNN."
In year 1984, you listen to your phone. In year 2004, your phone listens to you.
Okay, so the EFF sues AT&T for letting them do the wiretapping. Lets just say they win. Do you really think they will stop tapping the phones? Instead the NSA has to move the wiretapping from easy (ie, AT&T handing them the keys) to a bit more covert (ie, splicing in somewhere remote) which will cost tons more to the taxpayer than the original plan.
I am sure they already do plenty of covert splices as it is now. When I was working for a major internet backbone provider a few years back, I always found it interesting that in the office right below where we did all the long haul network designs was an office for the Dept. of Defense. Anytime we were walking through the halls and one of their employees were punching in the code to gain entry, they'd "accidentally" punch in the wrong code. I did some research, but couldnt find any info on what was done in that office... So, by no real logic, that means it had to be the NSA and they were intercepting all of our network designs so that they could find a repeater in the middle of no where to attach their monitoring equipment. Its only logical...
A lot of people born elsewhere love their countries, but there's a reason for them to love the U.S.A. Or at least, there used to be. While it was never perfect, the ideals of the rule of law, limited government, individual freedom were worth emulating. Take it away and you've got the Soviet Union with a better economy, Iraq with less history. Nothing special, just big.
We used to have a heritage of civilian control of the police and military. Now that civil government no longer exercises that control, it's a short step to reversing it. Betraying that heritage is treason against not just the country, but humanity. Bush has done more to hurt our country than bin Laden could dream of.
Like what you see? Want to see more of it? You can. Join EFF.
NSA==GWB
:-(
NSA>EFF
FU AT&T
The issues of law, however, are not so tenuous as you seem to think.
Erm, real lawyers and law professors disagree with you and Al Gore on that point. Try here and here, for example. I'm not saying either post is right on the money, but these are real fancy-pants lawyers throwing around real F. Ctr. Op. fnord. Cit. (3) legal citations. And when the professionals disagree so heatedly among themselves I'd say the legal issues are indeed unsettled, at least until such time as the Supreme Court weighs in on the issue.
This is hardly surprising: the exact point where the Executive Branch's Article II war-fighting powers trump the Legislature's power to make law has been argued for centuries. Did Lincoln have the authority to free the slaves by decree in the absence of any law whatsoever giving him that power? Could Truman seize steel mills hit by a strike during the Korean War to prevent disastrous steel shortages? Scholars still debate. Let us not even get into the delicate question of the famous War Powers Act, which every President, Democrat or Republican, has claimed to be unconstitutional since the day it passed.
In terms of spying on Americans, however, there must be a warrant. Article 4 of the constitution asserts this.
Nooo, the Fourth Amendment (not Article IV) just says there can be no "unreasonable" searches. That may or may not mean a warrant -- the definition of "unreasonable" is up to the Courts, ultimately the Supreme Court. For example, if a policeman sees you stuffing something that looks like a body in a trash bag or 50 pounds of marijuana into your woodshed, does he need a warrant to order you to unlock the woodshed and let him search it? Nope. In a case like that, the Courts have held that the value to justice of allowing the policeman to exercise his reasonable judgment on the spot, and collect evidence that you might otherwise hide, if given time, outweighs any danger to your civil liberties.
Furthermore, the Courts have generally held that the Executive Branch (that's the President, or his designees, like the NSA) has broad authority to search the effects, persons, and, yes, communications of US citizens when they enter or exit the country. You'll have noticed, I hope, that the Customs and Immigration people don't need a warrant or your permission to search your bags, papers, person or car when you enter or exit the country. They can even stop you within the US to search your bags or car for, say, illegal aliens or drugs, if you're near enough to the border. And the postal service can open up packages sent by you to international destinations, or from international destinations to you, to inspect them. They don't need your permission, a warrant or even a specific reason to do so. (The generic reason of making sure the Customs and Immigration laws are being followed is considered good enough.)
We can think of border control and inspection as something like a sobriety checkpoint. As long as the "borderline" over which, if you step, you get inspected, is clear, and as long as there is some reasonable law-enforcement goal served by the inspection, and as long as the inspection does not overly intrude in your daily life, then the procedure has been held to be Constitutional, even in the absence of probable cause or a warrant.
Modern communication, with the binging of messages back and forth across international borders, has made a bit of a mess of our expectations. Fifty years ago, the government read every international cable or telegram as a matter of course. But people expected that. It was an unusual thing to communicate internationally. Nowadays, and especially with the Internet, we tend to think of international communications as pretty much the same as intranational communications. But they're not. We expect the same privacy and legal rights as when we talk to our neighbors. But we shouldn'
Like what, sport? Smoke signals? Wooo, the terrorists KNOW that US Signals Intelligence is trying to listen in on their phone calls/email/faxes and any other form of electronic communications they can get their 40 foot dishes on! Oh Noes!!1!ONE1!ELEVENTY1!
Do the words "No shit Sherlock" hold any meaning for you? Any terrorist that didn't already know this was already killed or captured long before 9/11 or any other major event. It's just common sense. Terrorist darwinism. If you are too f'in stupid to stego-encrypt your plans to blow up the White House in an apparent P3N15 enlargement spam, you were a dead terrorist already. The ones that aren't dead are the ones that know better. Either that, or you're saying the good men and women of our nation's intelligence agencies are incredibly stupid, endangering American lives with negligent job performance, and deserve to be fired.
Wait a minute... that's exactly what you're saying... That's it isn't asshole? You're talking shit about our CIA/DIA/FBI/KGB/SIGINT/STASI/NSA/NRO/DHS, aren't you, you mother fucking unpatriotic piece of horse shit!!! You're saying there are terrorist sending plain text email that haven't been captured! You mother fucker... Call in the jack boots and kick itsdave's ass. You're with us or against us you unpatriotic towel head son of a bitch. What's it gonna be 'dave' or should I say Akmed?!?!
... there, now you know how stupid you sound to the rest of the free world.
Thanks for a really thoughtful reply. It's nice to see actual dialogue on this issue. 8^)
I'm afraid I'm going to have to cherry-pick a few small points, because it's nearly 04:00 where I am, and I will never be able to do justice to your entire message. I don't necessarily agree with every assertion you make, but I respect the time and effort and thought that went into it.
With regards to legal controversy, I've read across a number of online resources, but I'm in Eastern Europe at the moment, so I haven't had the chance to do more than that. While there are individuals (Yoo, the ex-Justice dept. staffer and legal scholar, for example) who strongly defend the president's power to perform warrant-less surveillance on US citizens, it appears to me that the majority strongly disagree. A number of conservative Justice dept. officials are reputed to have lost or left their jobs because of their refusal to support the White House warrant-less surveillance programme. There's a good article on the Newsweek website. It's well researched and well written, presenting the reasoning and rationale in a pretty straightforward manner.
"Nooo, the Fourth Amendment (not Article IV) just says there can be no "unreasonable" searches. That may or may not mean a warrant -- the definition of "unreasonable" is up to the Courts, ultimately the Supreme Court."
The 'unreasonable' element puts limits on the kinds of search, but the 'probable cause' part makes it clear that searches and seizures require warrants that have stood up to the appropriate level of scrutiny, in this case the FISA court.
That's fairly unambiguous.
Again, people will argue that the president needs the ability to conduct warrantless surveillance of US citizens in order to protect the nation. While I don't personally agree with that, I can see why people would argue for it. What I consider indisputable, though, is that he would require congressional approval to do so, and that would certainly entail legislation. Some say the law covering FISA already provides this capability. I'm prone to agree with them.
"Congress has no power to grant or deny war powers to the President, because he is granted those powers under Article II of the Constitution, and the Constitution supercedes all laws passed by Congress."
I think you need to re-examine that assertion. Only Congress has the right to declare war. Once that's done, the president has constitutionally granted latitude to carry out the conflict as he sees fit, without requiring further advice or consent. But Congress has not declared war; they have granted him powers as defined within the legislation authorising the use of force against Iraq. The fact that Congress explicitly disallowed the prosecution of these powers on US soil is, in this case, integral. They did not grant him the power to operate unsupervised on US soil.
Crumb's Corollary: Never bring a knife to a bun fight.
Yes I can agree with that. Imagine the nerve of someone sworn to uphold the constitution thinking he can simply order a government agency to violate constitutional rights without consequence.
The government has always had the authority to monitor international communications without a warrant.
I will accept that statement only after you provide a citation to a legal theroy that propounds it. In contravention of your point, I cite the FISA of 1978, the FISA court which has, in it's ENTIRE HISTORY, declined only four requests for a wiretap.
Bush didn't make up that power.
I suggest he did, out of whole cloth. The solicitor general (Alberto Gonzales) has been quoted on CNN saying he and President Bush did not seek specific authorization from Congress on exactly this point because they didn't think they'd get it. So he made a wild power grab and got away with it for many years. Now the lights are starting to come on, and they are scurring away from it like cockroaches in the kitchen.
Just let me point out, if you substitute "Clinton" for "Bush", I suggest you'd be barking at the moon for not just removal from office, but criminal prosecution as well. I tell you true, if Clinton tried pulling something like this, I'd have screamed for his head.
It just happened that in the past those communications were generally broadcast radio transmisisons and not internet or telephone communications.
Ahhh. Therein lies the rub. It was still illegal even then. Look up the law on interception of communications absent a warrent. Now, "they" (in this case, the NSA, DIA, MI6, and ANZAC) have to touch what they want to snoop on. In the past, they could just stick a wire in the air and break the law. Now they have to have cooperation. Regardless, it was still illegal since 1932.
The power hasn't changed, only the technology.
I argue that they never had the legal power. Tech has changed, that is self evident. That they have the absolute power is obvious. They can kill you if you refuse to cooperate. And likely bill your family for the bullet too. Doesn't make it legal.
Also, the communications in question are phone calls originating overseas
Incorrect. NSA is tapped directly into the Datona database. This includes ALL calls made through the PTSN, internal to the US, external, either initiated from inside or outside the US, and most Internet connections. They have SUGGESTED they were interested in only overseas initiated calls, however, I question if that is the case, and if it is, if they have the legal authority to do so even then.
by known Al Qaeda members.
Again, this is incorrect information. These are not "known" members of a terrorist orgisanation. These are SUSPECTS, some of them citizens (although I strongly believe that we should NOT be making distinctions about what civil liberties (aside from voting and holding office) should be granted to a non-citizen verus a citizen while within US jurisdiction. We then in turn expose ourselves to having to prove at every street corner that we are citizens. Think a Nazi SS Trooper shouting "PAPERS!" at every bus stop, airport (oops, too late!), train station, and highway blockade. And God help you if you don't have official permission to go to another city.)
If the NSA wasn't monitoring those conversations, it would be gross negligance and they would be ignoring their duty to the country.
Part of their duty is to make sure they aren't breaking the law themselves while trying to get the "bad guys". That's how you tell a good guy from a bad guy. The good guys always obey the law. The bad guys don't. It is an important distinction to remember. Or else you'll just have to accept someone is a "good guy" because they tell you to. And if they don't, they take you to jail.
I would probably agree that there should be oversight on this program to make sure there are no abuses,
T
Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.
What do you call a person within the boarders of a country, not a citizen of the country, during the time of war, without any sort of uniform, receiving communication from the enemy?
A dangerous criminal. We have laws for dealing with them. These laws were created specifically to put checks and balances in place to ensure freedom and democracy stay alive. These laws ban the kind of things you see in dictatorships like indefinite imprisonment without charges, spying on citizens who oppose the government, torture of prisoners, and secret trials where the defendant is not allowed to have access to lawyers or to see and challenge all the evidence presented against them. These are all things that this administration has claimed the power to do (oh, but only against the bad guys, of course).
This is the type of person that 150 years ago would not be arrested by the police, and not tried by citizen courts.
Please justify this statement with historical examples.
If you look at things this way, it is very easy to see why the administration went to Congress and informed them on what they were doing, and nothing was done. It would also explain why the administration believes they are doing the right thing, within the law.
He only informed a very select few members of Congress, and we don't know how much he told them nor whether or not what he told them is true. After all, he's acted to prevent oversight that would allow fact checking. We do know however that he's presented tainted evidence to Congress before, and look where that got us. We also know that he's lied about wiretaps before.
--George W. Bush, during a 2004 campaign speech
Honestly, how can you trust this man anymore? There are no legitimate reasons to evade FISA. The only other reasons are to spy on people who shouldn't be spied on or to go on a fishing expedition through a wide sea of innocent people in the hopes of grabbing someone guilty. These are the acts of man who has no respect for rule of law.
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Well, I understand your position, too, I think. I don't agree entirely, but as I said, this is an area where reasonable men have differed for centuries. Consensus is not likely any time soon...
First, I believe the Supreme Court has held that all sorts of searches can be considered "reasonable" under the Fourth Amendment without involving the issuance of a warrant. The text you quote certainly establishes two things: that searches may not be unreasonable, and that warrants may not be issued without probable cause and a narrow specification of what precisely is to be searched. But this text does not explicitly connect the two, and state clearly that a search is a priori unreasonable if it is not authorized by a warrant.
What exactly the text of the Fourth Amendment means, what the precise connection between "reasonable" and the presence of a warrant is, is therefore up to the Supreme Court to say. (Congress, of course, has no say in the matter.) Certainly what the Supreme Court has in fact held has been a welter of horribly complex reasoning that has kept fleets of Constitutional lawyers busy from the founding of the Republic to the present day. Myself, I do wish Madison had been a tad more explicit. But we have what we have.
One might argue -- as perhaps you are here -- that even if a search is not in fact authorized by a Court warrant, the Fourth Amendment requires that it be authorizable in principle by a warrant. That is, the same legal standards must be met. But I think the Supreme Court has rejected this reasoning. I believe they have held that different standards apply in different circumstances. For example, what is "reasonable" when a policeman decides the issue in a split-second can be different than what is "reasonable" when a learned judge with days to ponder decides the issue. And (more to the point) what is reasonable when the nation is in danger of armed sneak attack is not necessarily the same as what is reasonable when it is not.
I believe there are also all kinds of complex issues about what constitutes a "search" that depend on when one has a "reasonable expectation of privacy." An example is that, while it is blatantly illegal for the police to tap your home phone without a Court order, it is perfectly legal for a plainclothesman to listen to your conversation (and take notes that can be used against you in Court) if you and he are sitting in a cafe and you're jabbering on your cell phone loud enough for him to overhear. The circumstances mean he doesn't need a warrant or "probable cause" to listen in.
So, what kind of "reasonable expectation of privacy" do you have when talking internationally, versus domestically? When talking over a cell phone (on which anyone with a radio receiver can eavesdrop) versus on a landline? When talking to friends and family, or your lawyer or your doctor -- or to people you know or should know are enemies of the United States? These are complex questions, and reasonable men may certainly differ on the exact answers. But the exact answers matter, to determine how the Fourth Amendment applies.
What I consider indisputable, though, is that he would require congressional approval to do so.
Well, other people -- indeed, all Presidents -- dispute this. In the context of fighting the foreign enemies of the United States, the President draws his power directly from the Constitution. That's why there didn't need to be a law authorizing the CIA to spy on the Soviets during the Cold War, and that's why Eisenhower, for better or worse, was able to secretly order -- without Congressional knowledge or approval -- spy planes to fly over Moscow and photograph Chairman Brezhnev taking a leak behind Lenin's Tomb, if they could.
If the President were ordering the NSA to wiretap conversations between Americans and, say, German industrialists, for the purpose of industrial espionage, surely that would not fall under Article II. But it's difficult to see why, for example, FDR shoul
And that's the huge gaping hole in your argument. How do you know they are calling known or suspected terorists, when your government refuses to let anybody know who they are tapping on what basis but just ask you to trust them?
Do I really have to point out to you that the US has at least once had a president who had no qualms about wiretapping his political enemies for political gain (Nixon, in case you completely lack history knowledge)? What makes you think you can trust the current and all future governments not to do the same.
Keep in mind that regardless whether you think Bush is an asswipe or a true American hero, he will not be president forever, and any expansion of presidential powers will be there to exploit for future presidents too unless something is done to stop it.
The scary part here is not that Bush wants to wiretap, but that he so obviously KNOW that these wiretaps are wide reaching, considering that he's decided it's worthwhile to avoid asking for permission from a court that hardly ever says no to any request, and where the requests can be filed after the fact.
It takes an extreme naivety to think even for a second that nothing is fishy there.
If these are truly people calling suspected terrorists, then warrants for these wiretaps would be granted with no problems.
So why again, is it necessary to bypass the oversight measures put in place by congress?