Pretty topical given last night AD Radio debate between Sleeper and yours truly. Apparently the NSA is logging ALL of our calls, or pretty close to it. From AP:

Apparently Qwest is the only major telco not to turn over these logs. Makes me wonder if my provider (Vonage) is doing so.

According to the report, the NSA wants to create a data warehouse of telephone calls so they can mine patterns in call activity.

Questions for Debate:
1. Is the NSA's program of call logging constitutional? If no, what amendments or rights are being violated here?

2. How (if at all) will revelation of this program effect the new CIA nominee's chances for confirmation?

3. Can communications companies be compelled to provide this information without a warrant?

Actually, I don't have much of a problem with this. I don't think anybody's privacy is really invaded here. I could fathom how potential terror cells could be located by mining the source/destinations of phone calls. It seems quite different then listening in on our phone calls without cause as they do now.

But I'd like to ask a question for the Bush apologists who will claim all this is ok: Shouldn't the government keep a database of all gun owners? Knowing where all the guns are would seem as relevant as knowing who is calling who.

I mean, you don't have anything to hide, so why not save gun ownership to a database too?

1. Is the NSA's program of call logging constitutional? If no, what amendments or rights are being violated here?

Yes, it's constitutional. In fact, if you or I had enough money (and interest) we could collect this same data.



The companies themselves have investigated the legality of providing this information to the feds.

2. How (if at all) will revelation of this program effect the new CIA nominee's chances for confirmation?

I'm sure it will be used against him since he was pivotal in the original NSA wiretapping "scandal" that so many Americans support.

3. Can communications companies be compelled to provide this information without a warrant?

The telecoms are providing this information voluntarily (at least that's the impression I'm getting). Could they be compelled to provide this data? Probably not, but the point is moot because they are handing it over. We had this debate before, but I think it had to do with bank records. The feds collect bank record data too, presumably to imprison millions of Bush-bashers throughout the country . Of course, they've bungled this as they have just about everything and no Bush bashers have been rounded up as of this writing.

Of course, the media is already foaming at the mouth regarding this story: Reporter: NSA collects lists of numbers Americans call


Americans place billions of phone calls every day. I'd think it would take some doing to monitor all of those. The government is not going to randomly listen to phone calls, that simply is not productive.



In other words, this information is in the public domain and therefore accessible to the government.

Right, that's why theirs an ongoing court case. If you're so sure it's legal, maybe you should call up the defence team for AT&T. Wait, you don't have to do that, you can just call you buddy and explain it to him. I'm sure the NSA will forward the information on to AT&T.

I don't have time to get into all the questions right now but the continued invasion of our privacy and rights is simply sickening. When did the Republican's actually argue for government interference in our day to day lives?

Do you dispute that if you wanted these records, you could get them?

The government's job is national security. Let's let them do it or else don't complain after the next "big one"--which Osama has announced is in the works.

Yes I dispute that as does the EFF, that's why their is a court case. Do you have access to Hawkeye? Hawkeye is AT&T's call detail record (CDR) database which contains records of nearly every telephone communication carried over its domestic network since approximately 2001. We're talking 312 terabytes of data here. Think you can just call up and ask for a login and password?

Let's be clear here... according to the reporter:



This is more than just looking up a phone number which certainly is in the public domain. This is call records. Who is talking to whom. This is not in the public domain. I can't call up a telco and give them a number and ask them to give me the last ten numbers this number has called.

I can also call up the telco and ask them explicitly not to sell my call record information. In doing so, I am exercising my rights. Is the government getting the call records of those individuals who have explicitly asked not to have their records shared?

Actually, yes. Its against the law. According to the Stored Communications Act, specifically section 2703©.


Ah yes, lets invoke 9/11 yet again to assuage the public's fear of civil liberties violations. That old chestnut works every time.

Yes, Amlord, that is their job. But they're also supposed to follow the law in doing so. It appears that once again they aren't doing that. But I guess I should be a good little citizen and take faith that our government wouldn't do anything unseemly with that information.

What's next, websites visited? Or maybe email exchanged? This is simply an outrageous invasion of privacy rights and all this from the gang who couldn't even keep track of foreign nationals taking commercial jet flying lessons at a time when they were being warned that a terrorist attack was imminent. They still check only a small fraction of imported cargo and still don't screen most airline baggage.

1. Is the NSA's program of call logging constitutional? If no, what amendments or rights are being violated here?

What is clearly unconstitutional was to initiate and carry forward such a program without authorization from the Congress. It would be of questionable constitutionality even if it was enacted by the Congress and would have been challenge in the courts. As it is, Congress had no chance to build in safeguards even to protect how such information was used and the courts had no opportunity to check that such safeguards were enforced. Our country use to be one of laws and institutional checks and balances!

And such a data base is open to all kinds of abuse. We all witnessed the kinds of undemocratic shenanigans the Bush team is capable of in 2000 in Florida and in 2004 in Ohio. Are you certain that information can't be mined from this database that would make it easier to sabotage another election? Are I and my peace activist associates even now part of some nexus of phone numbers being analyzed as suspicious? To say the least, the existence of the program has a chilling effect on free communications. I'm sorry but I can't trust a president who lied us into war, sought to redefine torture, presided over forces that tortured and even tried to negate a new ban on torture with a signing statement. This president above all others needs to be subjected to congressional and judicial oversight.

2. How (if at all) will revelation of this program effect the new CIA nominee's chances for confirmation?

It will be a contentious hearing but I have no idea how this inept Senate that has been bent on avoiding its constitutional duties will vote.

3. Can communications companies be compelled to provide this information without a warrant?

Of course not, otherwise Qwest would have been forced to comply. Who would do the compelling, a company of marines under the President's direct orders? Maybe I shouldn't dismiss that possibility?

Good points.

To what degree are we willing to have our privacy violated in order to avoid terrorist attacks on our soil? Are we willing to have our guns picked up and collected because the terrorists might have some, too?

Are we willing to provide identification to law enforcement officers waiting at every state border?

Are we willing to have electronic chips implanted under our skin so that if someone is picked up who doesn't have that signature on a global positioning system, that person must be here illegally?

Are we willing to have anyone who buys tahini and hummus in health food stores investigated because that is what some terrorists like to eat?

Should we register for permission and then submit to a three day-long investigation period when we go to Lowe's or Home Depot to buy fertilizer?

Is it not true that any of these measures could be instituted ostensibly to identify terrorist "sleepers," and supposedly to keep the populace safe?

What about keeping our curtains closed at night? Why don't we keep them open? Do we have something to hide?

Those of us who value our privacy feel that the government is encroaching on our rights. We wonder whether our privacy will be restored to us when and if the terrorist threat is over, or whether the authorities will find that these extra measures helped law enforcement apprehend criminals engaged in drug trafficking, theft rings, and the like and therefore will want to keep them in effect. In that case, we will have lost the very liberties our troops are supposedly fighting for overseas.

I am not an attorney, but it seems to me that the surreptitious nature of the snooping the NSA has undertaken over these past several months and the President's disclosure that he knowingly bypassed the FISA courts suggest that the Congress would have opposed these actions for good reasons. I encourage the Congress, which is largely made up of lawyers, to investigate thoroughly the entire process. It is not a waste of time where the rights of the American people are involved.

As far as General Hayden's nomination for CIA chief, I was surprised that Republican U.S. Representative Peter Hoekstra was speaking against it. He's generally known for rubber-stamping whatever the president wants. This does not bode well for Hayden's approval process, especially since this disclosure of monitoring the calling habits of most Americans.

As far as the last question goes, while a telecommunications company can refuse to comply, there are certain "lists"--I am sure--that these companies do not want to be on. Authorities have a way of remembering who gives them a bad time. Let's follow Qwest's progress on the stock market during the next few months. It might prove instructive.

It seems Alice in Wonderland has borrowed “The Cowardly Lion” from the The Wizard of Oz.

Your statement reeks of unlimited faith in George W. Bush. Are there no restrictions you would place on his "authority" in your quest for security?

*yawns*

*rubs eyes*

Oh, hey everyone...

The first question that popped into my head was regarding it's relevance to security measures. If there's a collection of calls I've made and to whom, I'd like to know why, seeing as how the gov't is already using wiretaps on subjects (as common sense would hope) that have questionable ties to foreign nationals who are calling them from abroad.

The only scenario I could even see imagining this being relevant is if my number is always calling another number who is calling a number that has called or has been recieving foreign phone calls. The problem is that's so six degrees, it's not logistically sensible.

If there is no personal data linked with the numbers, the numbers are useless. So, again, why would it be usefull to obtain such records? Are they in possesion of a huge database that cross references those numbers with foreign numbers in hopes that they'll nab a terror link?

That's tantamount to fishing blindfolded in the middle of the ocean, hoping that you'll nab the whopper you can hang on your wall in the den of your home.

And if that's what it's come down to, I'm worried for our intel agencies.

But since logic would dictate that's not how the NSA, DIA, or CIA finds out intel on such terrorists, the question remains: What's the relevance behind obtaining and disecting such info?

1. Is the NSA's program of call logging constitutional? If no, what amendments or rights are being violated here?

Telephones did not exist during the drafting of the Constitution, so it's a matter of interpretation. I do know that domestic law enforcement has done this sort of thing on specific investigations.

I also know how fraud systems work in telephony. The technology is probably the same, where suspicious patterns are looked for. Well, that technology did not exist during the framing of the Constitution either.

This goes back to who owns your data. I can see where people would feel violated and might get upset enough to demand a clarification. I suppose if cases of false arrest happen, the government might want to scale back on the effort.

2. How (if at all) will revelation of this program effect the new CIA nominee's chances for confirmation?

It's sure not good for his confirmation. I wonder what his phone records look like.

3. Can communications companies be compelled to provide this information without a warrant?

I really don't know. Looks like Qwest is getting away with not providing information, and I've not heard of any prosecution coming its way. Google got away with it, so maybe companies can just say no.

Just in general, I don't think people are buying the government's line of explanation any longer. When the talking head says this and that are not happening, people think this and that are indeed happening. That stems back to violated trust, a condition that did exist during the framing of the Constitution.

Ok, lets presume for a moment that the government is telling the truth when they say that ALL they are doing is data mining from phone records of US citizens, and not actually listening in on any of them. That is ALL they are doing.

Firstly, do I have to remind people that nary a few months ago, according to the government, ALL they were doing was checking phone records made to calls outside the country, thats ALL they were doing.

Well, now it turns out thats NOT all they were doing, they were also data mining from all calls made within the country. So first problem, regardless of the inherent harm in this activity, we have already seen the government is being dishonest about the extent to which internal communications are being monitored. Given that their LAST claim of the extent of their activities was just proven to be a falsehood, are you completely willing to accept THIS declaration of the extent of their activities?

Secondly, even if we presume this is ALL they are doing, how exactly is this infringement of civil libertaies necessary in the war on terror? How many attacks from Al Qaida have been launched by US citizens? Zero.

Lets keep in mind what we are talking about here, this is monitering the habits of average citizens unconnected directly with the war on terror. They are not checking to see who call's Bin Laden's cellphone, THAT they could get a warrant and wiretap for legally. They are not checking who is calling suspected terrorists, or known cell members, that they could get a warrant for easily. This is monitoring the habits of average americans entirely unconnected to the war on terror, checking to see how many times they call their bank, their wives, their children, their bookies, their lawyers, their office, their parents, their friends, and the duration of these calls. Then they are creating webs of patterns, so that each person can be connected by time and date to people they have called, and those people connected to others.

And you still don't think this is an infringement on civil liberties? And lets not forget that this has all been done in secret, a fact Bush Jr. loves to point out... 'Terrorists LOVE journalists who expose the machinations of the federal government, as though those who question anything the government does secretly support terrorists...

So, even if we accpet that is ALL they are doing, and no private phone calls are being listened to, what can the government do from this? Apart from determining your web of friends and family, they can also place and time your movements, your activities and contacts. Having an affair? Skipping out on work? placing bets? All this they CAN determine.

Now the apologists will claim they are NOT determining this stuff. well, we have only the belief of the apologists for that, but even if they are not, we now have an action of the US government which makes all those actions possible, the NEXT government CAN do all those things, the precident has been set. This is not just about your faith in Bush Jr (which is at an all time low in the polls) this is also about your faith in government itself. Even if you (foolishly) think Bush Jr would never use the mined data in this way, are you confident that NO LEADER will use this information in this way?


And all this, for what protection exactly? How are the lives of US citizens safer precisely? Thats not an unreasonable question, if one's rights are being infringed, one should at least have the right to know EXACTLY why...

So in a "time of terror" we're supposed to just let the government do anything they want? Sure, go ahead and shred The Bill of Rights, guys. I wasn't using them anyway. How many rights will be shredded under the justification that Osama bin Laden will get us if we don't?

There is a difference Amlord between protecting national security and wrapping up every indiscretion by the government in the excuse of, "We're protecting your rights. Trust us."

Jack Cafferty on CNN summed it up: The President rushed out this morning in the wake of this front page story in USA Today and declared the government is doing nothing wrong, and all this is just fine. Is it? Is it legal? Then why did the Justice Department suddenly drop its investigation of the warrantless spying on citizens because the NSA said Justice Department lawyers didn't have the necessary security clearance to do the investigation. Read that sentence again. A secret government agency has told our Justice Department that it's not allowed to investigate it. And the Justice Department just says ok and drops the whole thing. We're in some serious trouble, boys and girls"

http://www.crooksandliars.com/2006/05/11.html#a8245

Maybe it doesn't bother you Amlord that the NSA has your phone number but it sure bothers me that they have mine. IF the Bush Administration says its not compling data on the phone calls of American citizens and it turns out they are, is it such a stretch to believe they might actually be listening and recording those phone calls as well?

If you aren't calling terrorists why should your telephone calls be eavesdropped on? Short answer: THEY SHOULDN'T.

Being naive in a time when your government is spying on you for your own good is a dangerous illusion.

I have to ask this- why are conservatives, normally so "goverment out of poeples lives, how dare they interfere with business yadda yadda" so suddenly okay with it as long as it is GW doing it?

Is goverment interference and routine spying on it's citizens not okay when a dem is doing it, but okay when a repub is doing it?

Why the sudden trust in goverment beauracracies?

You guys are all about jumping all over a innocous child's book that may contain something other than a hetero family as "goverment interference" but are okay when a shadowy goverment organization, with no oversite, and no accountable person, is snooping on random US citizens?

I love this...

NYT – Bush Is Pressed Over New Report On Surveillance



You'd only be interested in the call records of these "regular contacts"... whose numbers you know. Hmmm... Okay, this certainly makes sense... in bizarro world.

So, you are tracing the "regular contacts" of "known bad guys"... which means you know the numbers of the contacts and you know the bad guys... so why do you need to have all the domestic calls in the United States (or most of them) to trace contacts whose numbers you know? You certainly can take the numbers you know and get the call records for those numbers. You don't need the call records of everyone in the United States.

At what point do we stop this?

How long do we let this go on?

After reading the Code of Federal Regulations, it does seem that this is specifically prohibited, as Doclotus pointed out. The phone company can provide this information to anyone other than a government agency, but not to a government agency. Interesting, but that seems to be what the law says.

It does seem that the FBI can ask for this information, but if it does so it must inform certain members of Congress. It does not appear that the FBI initiated this.

It also seems that the US government may owe us all $10,000. Anyone know a good class action lawyer?

It's funny how all of the left is pinning this on the Bush Administration when this story was first aired on a CBS 60 Minutes program over 6 years ago(during the CLINTON administration I might add).

CBS 60 Minutes Story





I don't remember hearing any outrage from Arlen Specter then
Hell I don't remember hearing from any Democrats about this at the time... I wonder why...


This is an old story that has been revived and redressed for purely political reasons against the Bush Administration.

Because you have a bad memory? In fact Echelon, which was OUTED during Clinton's presidency but in fact existed since the Cold war, caused a great deal of outrage from democrats and republicans alike. Democrats because it was a violation of civil liberties and republicans because it vastly overreached the powers of the federal government. (How ironic)

In fact there was even a senate committee investigation into Echelon, at which the head of the CIA himself testefied. The reason that it never blew up into anything worse, is that it becamse clear that Echelon did NOT search everybody's phone conversations, this was a bit of fiction, and if the Government ever DID want to search domestic conversations, they obtained a federal warrant to do so.

CIA director George Tenet, before Congress on April 12th, 2000:
"We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department."


Thats the same FISA warrants that Bush Jr decided he no longer needs, eliminiating the judiciary from the equation alltogether.


And by the way, I DO have a huge problem with the Echelon system as it was, but trust Bush Jr to take a bad thing and make it 100 times worse...



Of course, PURELY political reasons. After all anybody who objects to Bush Jr's massive increase in the power of the federal government and elimination of existing legal safeguards on that power is either a political opportunist... or a terrorist. Say, maybe we should tap their phone calls!

How come Clinton wasn't being taken to task for this back in 2000 like Bush is now... can I get a simple answer?

I was waiting for someone to bring up The Echelon program under the Clinton Administration. Another wonderful example of "Waaah. The Liberals Did it Too." as justification for right-wing malfeasance.

During the 1990's under President Clinton, the National Security Agency monitored millions of private phone calls placed by U.S. citizens and citizens of other countries under a super secret program code-named Echelon

http://newsmax.com/archives/ic/2005/12/18/221452.shtml

But there's one big difference between what Clinton and Bush did regarding domestic surveillance. Clinton got authorization:

The Clinton administration program, code-named Echelon, complied with FISA. Before any conversations of U.S. persons were targeted, a FISA warrant was obtained. CIA director George Tenet testified to this before Congress on 4/12/00:

I’m here today to discuss specific issues about and allegations regarding Signals Intelligence activities and the so-called Echelon Program of the National Security Agency…

There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department. (original emphasis)


http://thinkprogress.org/2005/12/20/the-echelon-myth/

Nice try Sleeper. Got any other exaggerations to be corrected?

It sounds like Clinton's administration was getting warrants for their activity. Maybe that's why it wasn't as big a deal. Simple enough?

You got a few answers to this... one oddly right before you asked the question again... The situation is quite different as all have explained.

But even more importantly, Clinton WAS taken to task for it, and the outing of Echelon and the outcry from democrats and republicans resulted in a senate investigation. Check your assumptions at the door.

Interestingly, when challenged in this issue, Clinton himself recomended the investigation to clear any perception of illegality. He certainly did not go on TV and rant about how 'terrorists love opponents of Echelon' and chide the media for daring to take an interest.


The real question should be, where are the republicans who stood up and opposed Echelon at that time NOW?

Echelon seems to be much more intrusive than this program is. Echelon actually records conversations, while this is more general data mining. It is notable that Echelon-esque surveillance methods are credited with the tracking and apprehension of Khalid Shaikh Mohammed in Pakistan in 2003.

Just throwing this out there but the European Union is attempting to do this same thing with the Data Retention Directive. The UK's version of the Patriot Act, the Anti-Terrorism, Crime & Security Act of 2001, also requires companies to store this type of data and make it available to the government. The UK is perhaps the biggest collector of signal intelligence of its population among western nations.

Wiki: Data Retention in the EU

It is reported that Holland and Germany regularly wiretap up to 10,000 cell phones at once and those countries have resisted cell phone companies' attempts to use stronger encryption methods on their "handies".

It goes without saying that countries like Russia regularly monitor any and all communications by its citizens (the program is called SORM in Russia).

Wiki: Mass Surveillance

Again, this appears to be against the law in the US, unless there is some part of the Code of Federal Regulations that I missed on this subject (not entirely out of the question).

This argument is as simple as it gets; should government be allowed to spy on you without any reason? A search warrant is a reason. And without a warrant, you have no reason, and without a reason, you should not be allowed to spy on anybody. You can debate the legality of it all you want. You can confuse the argument with FISA regulations or Federal Codes, but the argument remains simple; no reason, no spying.

This would not be an issue if the President was getting warrants. Folks, we should all accept the fact.

OSAMA BIN LADEN WON!!

Government is spying on you.
Government is tapping your phone lines.
You are disrobing before entering an airport.
Every government building has fear-based security and metal detectors.
Police have cameras watching you drive.
Library books are being recorded.
Average citizens are guarding our borders.
You are in a Nanny state.

OK, this is pretty spurious since none of this is new or unique to the current day.

I did see an interesting article: The Big Brother



We need to keep some sort of rationality here. When I first started reading this article I thought it would be marketing companies keeping track of this data (and they do), but of course both political parties keep databases.

This article explains why this practice violates neither FISA nor the Fourth Amendment.



On a final note, I've been reading up further on the "Stored Communications Act" which Doclotus referenced. It seems that the procedure is more complicated than I first believed.

In United States v. Fregoso, 60F.3d 1314, 1321 (8th Cir. 1995) the federal court held that telephone company customers do not retain a reasonable expectation of privacy in account information held by the telephone company);

In this summary paper on the Stored Communications Act it says that the government can obtain the following information with a subpoena rather than a warrant:


Now several agencies can issue what are called "administrative subpoenas" to compel a company to release information during an investigation. One of these is the FBI.

According to this page criticizing expanding FBI powers "The FBI has for some time been able to issue NSLs for three kinds of records: credit reports, bank records, and telephone/Internet billing and transactional records." NSLs are "National Security Letters"

A key concept is compelled disclosure versus voluntary disclosure. Unfortunately, court logic doesn't always work like the rest of us apply logic. So was this a voluntary disclosure of "non-content" information (which is not allowed under the law) or a compulsory disclosure? Does a compulsed disclosure need a subpoena or warrant?



Another point: it may be that the "Stored Communications Act" may not limit government action and may only limit actions by providers.



Durn federal regulations are so convoluted.

The same thing? Where in the EU directive does it mention that a member state can simply access all the data without any form of warrant? There is nothing in the EU directive that states this. All access must be made with respect to Articles 7 & 8 of the EU charter and in accordance with national laws respecting these rights.

It is not the same thing at all.



And why was there no expecation of privacy? The case goes on to say:



That changed, however, when the SCA was passed in 1986. We now have a reasonable expectation of privacy when it comes to government entities because the SCA states that telephone companies will not give out this information to government entities without a warrant (or possibly a subpoena).

I can't find the full text of United States v. Fregoso, so I can't comment on that one.

As far as the subpoena v. warrant situation, this is irrelevant. The government still has to go to a court to get approval (either a subpoena or a warrant). Did they do this? I don't believe they did. And subpoena's need to be specific, as I recall. They can't just say... we're going to subpoena the phone records of everyone in the United States. That's too broad.

As regards who is liable... yes, I agree that the telcos are liable. They did not have to give the information and yet they did. They are the ones who should be sued.

Doesn't your argument go out the window when we know that these private companies volunteered this information? I think people's anger are directed in the wrong direction. Be mad at the telephone companies for giving this information freely to the government and not the government for simply asking (not coercing or forcing) the companies to hand over the info. I agree that it is them that should be sued if there is reason enough to do it...but why is the government taking the fall?

This discussion goes off in all kinds of tangents. I would like to see it focussed on the unconstitutional nature in which it was established. There was no legislation passed by Congress authorizing it. There was no possibility of judicial review, by FISA or another court. This truly was an exercise of the "unitary executive." Perhaps we should drop the legalize language and say Bush acted as a king or dictator. What will King George do next? Attack Iran without congressional authorization? It is extremely important that this administration be held accountable for at least this behavior.

Is privacy now defined as "the government can't see it"? Since AT&T is free to sell these same records to marketing firms, do you really expect privacy from AT&T in regards to the usage of your phone and who you are calling? I think the court might question that logic.



There is an administrative subpoena in the case of terrorism, as I stated. Now I have seen no evidence that they issued such a subpoena and to my knowledge the NSA does not have administrative subpoena power. But, as the summary I linked earlier said, this is all a gray area.




I think the argument is that the government should know better than to ask. These companies cannot freely give this information to the government--that much is clear. Oddly they can give it to just about anyone else--including, I guess, posting it publicly on the internet. I guess that's fine as long as the government doesn't get its grubby hands on the info.


There is no fourth amendment issue here. The court has ruled on this. If anything, the issue is with the Stored Communications Act, which the court has also ruled the government cannot violate because it puts no restrictions on government action, only on the actions of the providers.

Here’s the take from Georgetown University Professor Jonathan Turley, a guest on last night’s Countdown;

Turley sees this as another power grab, by perhaps the most out-of-control, arrogant president in U. S. History.



http://www.msnbc.msn.com/id/12756626/

Many years ago, I heard "Mr. Conservative," Barry Goldwater, speak at T.C.U. One of his lines is that he would rather be “dead than red.” Goldwater uttered these words during the Cold War. Where is his spirit in today’s timid conservatives living in a fantasy world--a grand illusion--where Bush, yeah Bush, protects them from all possible harm?

“Dead than red,” is just another way of paraphrasing what Benjamin Franklin said:



http://en.wikiquote.org/wiki/Benjamin_Franklin
Apparently there are some conservatives who still take the side of liberty over security in the current equation.



2. How (if at all) will revelation of this program effect the new CIA nominee's chances for confirmation?

That’s an interesting question. It could derail Hayden. Bush may actually want a fight on this issue. Security is one of the few lights left at the end of the tunnel for this president. Meanwhile, a new poll by Harris finds his overall approval rate at 29%.

Harrris Interactive Poll

What laws were broken here?

I pointed out that the Supreme Court has ruled that non-content phone records are not a fourth Amendment issue.

I wrongly thought that this may violate the SCA, but discovered that the Federal Court of Appeals has determined that the SCA places no prohibitions on government behavior.

It may go against the sense of how things should be done, but I have not seen a law which this violates.

Nice attempt at obfuscating by accusing conservatives of abandoning their principles. But national security has always been a keystone of many conservative thought processes. Don't cloud the issue by trying to redefine conservatism.

It is reasonable for us to expect that the telcos are not giving the government our information without some form of court order. That is the reasonable level of privacy we expect. Why? Because there is a law in place stating that they can't. There is no flaw in that logic: the law says telcos can't do it... we reasonably expect that they aren't doing it.





Where did the Supreme Court rule that there was no fourth amendment issue? Smith v. Madison... but that case was heard before the existence of the SCA. Before the expectation existed that the government would not have access to this information without some form of court order. It is no longer a valid precedent for this issue.

If the government failed to provide a court order, it is violating the 4th Amendment even if it isn't civilly liable for the violation of the SCA.

Apparently conservatives aren't defining themselves well.

I don't think quoting Barry Goldwarer is redefining conservatism.

And that's the problem here, Amlord. No warrant, no subpoena. Even subpoenas usually require some kind of judicial oversight, which was seriously lacking in this instance, and usually requires some kind of "reasonable suspicion" to be issued. Is the entire country really under "reasonable suspicion" of being part of a terrorist organization here? Say it isn't so!


Yes, again to release information during a specific investigation. They can't just get information to sift through, willy-nilly.


Well, it certainly seems to require one, if we go by the above example that you yourself presented. The editorial in the last paragraph notwithstanding, the courts ruled in this case that the officers basically compelled AOL to provide the information by sending them a completed warrant application. Taking it to be a compulsory item, AOL gave the officers subscriber information that they would not ordinarily produce, had the request merely been a letter, or telephone request. The warrant application gave it the appearance of a legal demand, but contained no actual judicial oversight. That's why the police and AOL lost this case.


That's the way I read it as well. So? The government was asking for information it clearly knew was out of bounds, and shouldn't be asking for. The fact that the Telcos didn't point out their obligations under the law, and request a subpoena or warrant for the information, simply compounds the problem.

And the penalties to the Telcos can be substantial. The FCC can levy fines of up to $130,000 per day per violation. Anyone know of a good class action attorney?

Oh, wait a minute, according to USA Today, one telco, Quest, did ask for a warrant or subpoena from FISA before releasing their records:



So tell me Amlord, if this program is so completely legal and above-board that no one would have a problem with it, why was the NSA afraid to go to the FISA court? More to the point, why were they afraid to go to Attorney General Ashcroft, who apparently had no problem with the warrantless wiretaps program? Wouldn't this have just been more of the same? Or were they afraid that this was so over-reaching and illegal on it's face, that the AG himself would have balked?

All of this aside, I, like others here find it extremely interesting that most of the conservatives have no problem with this at all. Are the rights to privacy and lack of government intrusion into our daily lives so easily dismissed in the effort to keep us "safe"? If so, I believe I would rather stand with the likes of Samuel Adams or Patrick Henry, both of whom knew the problems of having the government invade everything, including our private lives. I think I'll let them have the last word on what this country should stand for:

Subpoenas and warrants are not the issue. The reason the government gets a warrant to search some property is because the owner of that property does not consent to a search. In this case, the telecommunications companies consented in giving the information to the government. The real issue is whether or not the companies have the right to do so. The government in no way forced or coerced them into giving the info...so it falls onto the telecommunications companies.



One company's lawyers found fault in the request while I believe five others did not. There is no doubt a legal queestion here...but is it in regard to the government or the telecommunications companies? I say the latter.



To clarify, the information given had nothing to do with an individual's conversation but rather with calling patterns. Who you called not what you said during the call. If the program was seen as legal than why would they go to the FISA court? If the request for the info was consented than a warrant is not necessary...again its the power of the telecommunications company and not the government that should be in question.

It does not appear to me that the interests of the National Security Agency and Corporate America are all that different. There appears to be--shall we say---a working relationship---between the two parties.


History proves a good guide to how the NSA would go about winning cooperation from a telecom company. When telephone and telegraph companies began assisting the NSA during the 1940s, only one or two executives were in on the secret. That kind of arrangement continued into the 1970s, and is probably how cooperation with the NSA works today, says Kenneth Bass III, a Justice Department official during the Carter Administration. "Once the CEO approved, all the contacts [with the intelligence agencies] would be worked at a lower level," he says. "The telcos have been participating in surveillance activities for decades--pre-FISA, post-FISA--so it's nothing new to them." Bass, who helped craft the FISA law and worked with the NSA to implement it, adds that he "would not be surprised at all" if cooperating executives received from the Bush Administration "the same sort of briefing, but much more detailed and specific than the FISA court got when [the surveillance] was first approved."

For US intelligence officials looking for allies in the industry, AT&T, MCI and Sprint have a lot to offer. In 2002, when the spying program began, AT&T's CEO was C. Michael Armstrong, the former CEO of Hughes Electronic Corp. At the time, Armstrong was also chairman of the Business Roundtable's Security Task Force, where he was instrumental in creating CEO COM LINK, a secure telecommunications system that allows the chief executives of major US corporations to speak directly to senior members of Bush's Cabinet during national emergencies. Randall Stephenson, a former SBC Communications executive who is now AT&T's chief operating officer, is a member of the National Security Telecommunications Advisory Committee, a group of executives from the communications and defense industries who advise the President on security issues related to telecom.

Those executives, all of whom hold security clearances, meet at the White House once a year--Vice President Cheney was the speaker at their last meeting--and hold quarterly conference calls with high-ranking officials. (Asked if the NSA surveillance was ever discussed at these sessions, committee spokesman Stephen Barrett said, "We do not participate in intelligence gathering.") AT&T also makes no bones about its national security work. When SBC was preparing to acquire the company last year, the two companies underscored their ties with US intelligence in joint comments to the FCC. "AT&T's support of the intelligence and defense communities includes the performance of various classified contracts," the companies said, pointing out that AT&T "maintains special secure facilities for the performance of classified work and the safeguarding of classified information."
(emphasis added)

http://www.thenation.com/doc/20060320/shorrock/2

So you see, lederuvdapac, there is more than a passing relationship between the telecom companies and the Bush Administration. They were probably only too happy to provide the records of millions of Americans under the cloak of "national security."

So lets get the record straight using your source. The relationship between the telecommunications companies and the Executive Branch is long standing extending as far back as the 1940s. Don't you think that someone would have noticed a broken law or two in the 60 years since the relationship begun? I mean if this type of info sharing is illegal as so many claim then how come it has been going on for so long?

Furthermore, the information is volunteered to the federal government since no order has been given to forcibly secure the info. These are private enterprises that just so happen to have many records of calls of many Americans and they gave it willingly to the government. Whether the reason for it was self interest or they felt "compelled" is not the issue, its can they do it?

My main point is that this should be the focus of outrage instead of the government asking for it. Do the telecommunications companies have the authority to hand over the information in question (where calls are sent, not the substance of the calls) to the government? I am real curious for this answer because I was under the impression that such info was kept confidential without a subpeona. But nobody has produced evidence saying so. Another question I have...are the records of who is called hold the same weight as what was said in a particular call? If it doesn't than this is a non-issue.

1. Is the NSA's program of call logging constitutional?

I don't believe it is. It's clearly not legal, but whether it is a direct violation of the Fourth Amendment seems to be a matter of debate. I would argue that it is a direct violation of our right "to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures". The counter-argument seems to hinge on Smith v. Maryland and the definition of "non-content" - though I would first like to address some significant differences between that case and the NSA obtaining our phone records.

In Smith v. Maryland, the Smith in question was a suspect in both a robbery and the subsequent threats made to the victim over the phone. The police had a physical description of both the suspect and his car and used them to identify him. While I would argue that the police should then have obtained a warrant (and would agree with just about every point the three dissenters made in the case), they at least had probable cause to request that the phone calls of the suspect be monitored specifically to see if any calls were being made to the victim's number. They were not fishing for evidence for no apparent reason.

Another significant difference arises from the fact that Smith was an individual: only his calls were being monitored. The police were not also recording the calls made by the victim - or the calls made by those that the victim or the suspect called. It was a single record, not a database.

The third major difference surrounds the whole question of "content" - or "non-content". Amlord has presumably taken this to mean (and he can correct me if I'm wrong) the actual content of telephone conversations - phone-tapping in other words. The court mentions phone-tapping (in relation to Katz v. United States), but it also mentions that this was not a violation of the Fourth Amendment because the police were recording "only the telephone numbers that have been dialed" and that by only looking at "the numbers dialed into a telephone system", they were not invading Smith's privacy.

Can we assume that anything in addition to a list of numbers dialed does constitute "content"? Even just having a network of calls - the numbers dialed by everyone you've ever called - is a certain level of content. This is what the President described the other day as presumed "affiliates". Such presumption is itself worrying: how many degrees of separation are there between any one of us and a suspected terrorist? We should be surprised that there aren't more than ten million "terrorist affiliates" in the NSA's database - though I suspect their work is far from done.

Further, the records now in the possession of the NSA also include the duration of calls. Is this content? Suppose a man dials the number of an escort service several times over the course of a few days. In the Smith v. Maryland case, that's all the police would know. It could have been the number of a business associate that he wrote down wrong and tried calling several times in error. But as the NSA also knows that each call lasted from three to five minutes, that implies content consisting of more than "Sorry, wrong number."

In any event, I wonder how applicable cases from 1967 and 1979 are in light of subsequent legislation - the Telecommunications Act of 1996, for example (of which, more in a moment).

But I don't think we really need to cite court cases or constitutional law at all. I'd say that actions speak louder than words. First, this is the sort of thing that the Bush administration actually tried to do with the Total Information Awareness program established by DARPA in January, 2002, and headed by convicted felon John Poindexter. Within a year, its activities were suspended pending a Congressional review of privacy issues and, following a report on its activities, it was defunded by act of Congress - because it was seen to be open to potential abuse - such as, oh... using it to identify a journalist's sources or trace whistle-blowers or engage in industrial espionage or blackmail. The Executive knew that establishing this type of database had already been thwarted by Congress - for damned good reasons.

Second, we're not hearing much about the Qwest refusal, which is actually kind of interesting. According to statements made by Qwest itself, I wouldn't exactly call the process "voluntary" as it has been characterized here. According to the original USA Today story, when Qwest refused to hand over the records, the NSA "pushed back hard":
More interestingly, Qwest asked the NSA for a court order before releasing their records. They were refused. This is not unusual since, until "national security" was evoked in the wake of the September 11 attack, even AT&T's policy had "required law enforcement agencies to present a court order before they would even consider turning over a customer's calling data". Following increased pressure from the NSA, Qwest then asked for FISA approval before turning over the records. They were again refused.

Now, assuming that this information is vital to national security - as the National Security Agency was arguing to the phone companies (and as supernumeraries like the President of the United States have been arguing since) - why didn't they get a court order or FISA approval? Because they knew they would be refused? And if such a request is perfectly legal and constitutional, why on earth would they be refused? The NSA can't have it both ways. If access to the phone records of millions of citizens is both urgent and legal, why the hell didn't they just get a court order?

Something tells me they knew that what they were doing was unlawful. In fact, there is no other credible explanation for their failure to secure legal sanction for the records they so desperately needed from Qwest to complete their terror-vanquishing database.

As to ECHELON, there are again key differences. First, ECHELON was initially set up (during the Cold War) for the purpose of creating an international spynet to capture information related to espionage. It was not intended to monitor domestic communications within any of the participating countries, but rather communications between countries - especially those considered "threats". Not unlike the stated intent of the warrantless wire-taps. There was also a secondary purpose (which may, in fact, have been its real purpose), which was to conduct corporate espionage benefitting American business - as former CIA Director Woolsey has admitted.

Second, ECHELON could only be used for data mining (and this was confirmed by FISA). It could only seek out and collate key words and identify a flagged source - a phone number, for example, or IP address. And, wothout a court order, nothing more. According to the Telecommunications Act of 1996, telecom companies are prohibited from producing "personal identifiers" - names, addresses, billing information - in the absence of probable cause. Without a court order, phone companies cannot reveal "calling habits" such as the duration or frequency of calls to other numbers or any information regarding incoming calls. The NSA's approach to the telecom companies in question circumvented all of that.

What compounds this most recent disclosure is that a list of phone records can be combined with data mined through programs like ECHELON, including phone calls, email traffic, and websites visited - and can be collated with data like our bank and credit records, library records, tax records, credit card purchases - you name it.) Indeed, I'm convinced that was the intent from the outset. I'm not convinced that the most autocratic and invasive administration we've ever had, which uses everything for politcal ends, has been limiting the use of these records to tracing the "terrorist affiliations" of ten million citizens.

Regardless of the convoluted language of court decisions or the vagaries of government regulations, the actions of the NSA demonstrate that they knew they could not get these records via legal means - dating back to the dismantling Total Information Awareness (or, at least, the Congressional directive to do so) and supported by their refusal to seek court orders, even through FISA. If they could have got these records via legal means, they would have.

I have no problem with the NSA (or the FBI or the CIA or the DEA or anyone else) being granted access to phone records - so long as it is done through legal channels and with probable cause. In other words, I have no problem with constitutional action. But I do have a problem with a "unitary executive" that thinks it can do whatever it damned well pleases and then tries to come up with some sort of "national security" rationale for having broken the law after (and only after) it's been caught.

2. How (if at all) will revelation of this program effect the new CIA nominee's chances for confirmation?

I think it's too soon to tell. We don't really know who initiated this action or who was privy to the decision. If this plays out like every other unlawful act perpetrated by this administration (and, at this stage, they are legion), we may never know. The NSA has already told the Department of Justice that it is not allowed to investigate them.

What we do know, though, is that the warrantless wire-tapping of US citizens was done with Hayden's knowledge and consent (possibly even at his prompting), so I have no reason to doubt that he was at least aware of the largest database in the history of the universe, if not one of authors. Should this prove to be the case, it could bode ill for his nomination. In this Congress, of course, that means he'll be asked a few awkward questions, answer them with jingo and lies, and promptly be approved.

What this all boils down to is that there may be no government transparency under the Bush/Cheney regime, but there sure as hell is private citizen transparency.

3. Can communications companies be compelled to provide this information without a warrant?

No. If they could, Qwest would already have been duly compelled. They can be subpoenaed to provide this information quite legally (per the Telecom Act) and, in our current climate, I would imagine quite easily. But they weren't subpoenaed. Maybe "probable cause" does still mean something, even if Michael Hayden has never heard of it.


Note: There appears to be additional information at Glenn Greenwald's Unclaimed Territory (he's quite good, if you haven't read him) in an article called "Legal issues governing the Administration's newly disclosed surveillance program" (citing Orin Kerr and others), dated May 11, 2006. I haven't made my way through his yet, so there may be more detail that could amplify or modify some of the above.

Questions for Debate:
1. Is the NSA's program of call logging constitutional? If no, what amendments or rights are being violated here?

As I am about 10 years short of a law degree, I won't pretend that I have a better answer to this than all of the talking heads I've heard. Still, it seems unAmerican on the face of it. The speaker who had already told us, "It'd be a lot easier if it was a dictatorship. Of course I'd have to be the dictator." has been on television telling us that he isn't trolling for data. Of course, his lips were moving as he said that. They are trying to tell us that only numbers are being collected. I know that when I see an unfamiliar number on my caller ID, I can usually do a reverse number lookup. I didn't bother to return the phone call I received from The Lumberman's Wholesale Grocery and Beauty Supply because I presumed it was a wrong number. Occasionally, I have a number that I can't locate, but I presume the NSA has a better ability than I do to determine who has called me. However, all that a computer can do is determine that a call was made; not whether it was an intentionally dialed number, a wrong number, or a number someone found on a men's room wall.

2. How (if at all) will revelation of this program effect the new CIA nominee's chances for confirmation?

We will need to confirm someone to head the CIA, and I suspect that this nominee will demonstrate a lack of intelligence by testifying that George W. Bush is the wisest leader the United States has ever had. GWB will no doubt threaten that if he is rejected, he has a worse nominee willing to step in and do a heckuva job.

It's a Republican Congress, and the nominee will be approved along party lines.

3. Can communications companies be compelled to provide this information without a warrant?

Apparently, and so I have one less reason to pick up a telephone. I suspect that although Qwest has refused to co-operate in Operation Big Brother V.314159etc, that the military has found a way to tap into their records anyway.

It seems possible that we can "protect ourselves" if we try