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Domestic spying now (secretly) used by law enforcement
August 5, 2013 6:26 AM   Subscribe

The NSA is handing the Justice Department information, derived from its secret electronic eavesdropping programs, about suspected criminal activity unrelated to terrorism; meanwhile the DEA is using information from NSA programs to launch criminal investigations, and then 'recreating' the trail of investigation in order to hide where the information originated.
posted by anemone of the state (168 comments total) 34 users marked this as a favorite

 
Surely this...

wait, what?
posted by leotrotsky at 6:31 AM on August 5, 2013 [12 favorites]


two comments:

1) I don't know if I'd say this is secret; the statutes expressly permit this sort of information sharing.

2) This is the part of the NSA program that I find most troubling. the tradeoff for the NSA program is that we give up some privacy in exchange for protection for getting security from terrorism. the code section authorizing this information sharing converts the program into a general law enforcement mechanism. if I had to pick one component of the program to get the axe, it would be this one.
posted by jpe at 6:31 AM on August 5, 2013 [9 favorites]


This is the part of the NSA program that I find most troubling. the tradeoff for the NSA program is that we give up some privacy in exchange for protection for getting security from terrorism. the code section authorizing this information sharing converts the program into a general law enforcement mechanism. if I had to pick one component of the program to get the axe, it would be this one.


Ditto a thousand times (sorry for the big bold at first!).
posted by tilde at 6:32 AM on August 5, 2013 [2 favorites]


It's also pretty depressing to have the Obama Administration make Rand Paul look like the sane one on this issue.
posted by leotrotsky at 6:36 AM on August 5, 2013 [36 favorites]


Fourth Amendment to the United States Constitution

"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."
posted by gen at 6:36 AM on August 5, 2013 [40 favorites]


1) I don't know if I'd say this is secret; the statutes expressly permit this sort of information sharing.

Do the statutes also permit federal agents to mislead prosecutors?
posted by ryoshu at 6:37 AM on August 5, 2013 [10 favorites]


Do the statutes also permit federal agents to mislead prosecutors?

Not to mention misleading the defense...
posted by gen at 6:39 AM on August 5, 2013 [8 favorites]


Current and former federal agents said SOD tips aren't always helpful - one estimated their accuracy at 60 percent. But current and former agents said tips have enabled them to catch drug smugglers who might have gotten away.

Assuming the SOD tips are derived from NSA data, this is a bit of an irony. The value of the NSA intelligence for stopping terrorist action has been somewhat difficult to demonstrate; it's unclear just how useful NSA taps have been. On the other hand, this is a clear demonstration of utility; it just happens to be unrelated to terrorism.
posted by Going To Maine at 6:41 AM on August 5, 2013 [2 favorites]


Also, given the vehemence that DEA investigators are using to defend "Parallel Construction", I'm really curious to see more about this. This is not some radical new thing that came in with 9/11 but something that has been around for a long time. There are parts of the outrage bandwagon that seem worth jumping on here, but others that seem very poorly defined. The article pairs vague assertions from the DEA that this is legal and established with outrage from identified lawyers that this is terrible. I'd like to see the more detailed argument for why this has been okay, since at some point one was surely made.
posted by Going To Maine at 6:54 AM on August 5, 2013 [3 favorites]


A recent LinkedIn posting on the personal page of a senior SOD official estimated it to be $125 million.

Also, LinkedIn has played a surprisingly big role in unearthing additional juicy tidbits during these NSA revelations. Amazing how a big public resume database is a boon to investigative journalism.
posted by Going To Maine at 6:55 AM on August 5, 2013 [13 favorites]


The technology infrastructure already exists, it will be used. Every local police officer in the country will be able to query the master databases at will within 3 years, if not already.
posted by T.D. Strange at 6:59 AM on August 5, 2013


Quick, is that a Fed at your door? Or a terrorist? (Or both?)
posted by Benny Andajetz at 7:02 AM on August 5, 2013 [1 favorite]


If we're going to rant about something can it first be the fact that the DEA still exists?
posted by Potomac Avenue at 7:05 AM on August 5, 2013 [17 favorites]


Holman Jenkins had an interesting take on this a few weeks ago in the Wall Street Journal. The article may be paywalled, so copying a few grafs here.
More than a decade after 9/11, an examination of the whole range of anti-terrorism spending is grossly overdue. Per life saved, the Food and Drug Administration maintains society should be prepared to spend $7.9 million. The Environmental Protection Agency has its own figure: $9.1 million.

The Homeland Security Department has shied away from any such discipline, though it once suggested that a life saved from terrorism was worth twice as much as any other life, bizarrely based on the public's exaggerated dread of terrorism. Even so, the Federal Air Marshal Service has been estimated to cost $180 million per life saved. Airport security—don't ask. One British study estimated that security efforts would have to stop 30 attacks per year on the scale of the 2005 London transit bombing to justify Britain's spending under normal metrics.

A basic problem is that terrorism is rare. Crime isn't. An Urban Institute study two years ago found benefits of $1.50 to $4.30 for every $1 spent by Baltimore and Chicago on anti-crime cameras. These investments in security were a good deal precisely because a lot more people were available to be saved from a lot more threats. Maybe the best outcome, then, would be to take metadata surveillance away from the spooks and apply it more broadly and openly to regular law enforcement.

In the furor of the past few days, officials have pointed to the 2009 New York subway bombing plot as having been broken up by electronic surveillance. In Aurora, Colo., Afghan émigré Najibullah Zazi was observed sending emails to a Pakistan Internet address known to be used by an al Qaeda bomb expert.

By coincidence, Aurora, Colo., also happens to have been the home of James Eagan Holmes, who shot up a movie theater last year during a "Batman" screening, killing 12 and injuring 58. Holmes's electronic traffic would have reflected the following pattern: failing his exams, withdrawing from graduate school, seeking psychiatric counseling, buying four weapons and a large amount of ammunition, ordering extra clips and a flak vest, applying to join a gun club whose proprietor found him disturbing.

Could meta-surveillance have alerted us to these activities? Did it? Did it have anything to say about the individual who last week shot up Santa Monica College? There's an argument that big-data techniques would throw up too many false positives, but then that would be the case now, and taxpayers are buying a high-tech pig-in-a-poke.
posted by BobbyVan at 7:10 AM on August 5, 2013 [8 favorites]


Sounds like Holman Jenkins doesn't love America.
posted by sandettie light vessel automatic at 7:17 AM on August 5, 2013


This is my surprised face.
posted by entropicamericana at 7:18 AM on August 5, 2013 [5 favorites]


I just Googled "parallel construction" and only got this article. I can only assume this is a euphemism used by the DEA that means "cover up the trail of illegally-gained evidence so we can pressure the poor schmuck into a plea bargain, then drop the case if we might get called out on it."

Maybe this technique has been used for decades; the difference now is that the informant is a sprawling surveillance complex which sees everything.
posted by RobotVoodooPower at 7:19 AM on August 5, 2013 [6 favorites]


Speaking of the NSA, isn't it great that despite all of their invasive snooping, they still can't narrow down any targets for these alleged threats the media is currently telling us to mess our collective drawers over?

Now, I know what they'll say: The answer is to this is more snooping. I expect the spiderbots from Minority Report to come out any day now.
posted by entropicamericana at 7:23 AM on August 5, 2013


I think there's a distinct possibility that Al Qaeda is systematically probing the NSA's capabilities by "chattering" about a non-existent plot.
posted by BobbyVan at 7:26 AM on August 5, 2013 [12 favorites]


I think it's a distinct possibility that the NSA is making shit up to divert our attention from the fall of the republic.
posted by entropicamericana at 7:27 AM on August 5, 2013 [35 favorites]


God this creeps me out. I don't really have anything to hide, but when they start drawing up detailed behavioral profiles of every human being on earth, the next step is almost bound to be getting permission from the government to start using it to preemptively "fight crime". And I know, given my patterns, I'd throw up a few red flags (despite being innocent of anything too heinous).

That can't be allowed. Put on your rage hats and let's have us another ECPA update sooner rather than later.
posted by saysthis at 7:28 AM on August 5, 2013 [1 favorite]


The government cannot perform a cavity search on a suspected criminal without a warrant, but it can perform indiscriminate searches of all anuses that have a 51% chance of belonging to a non-citizen, provided that the goal is the detection of terrorist activity. It can also search any anuses that have two or three degrees of separation to a 51%-non-American anus.

If contraband is found during the course of these searches, then the owners of the offending anus may be referred to the Justice Department for prosecution.
posted by dephlogisticated at 7:32 AM on August 5, 2013 [15 favorites]


It was NSA surveillance that initially detected that Billy Carter, the younger brother of President Jimmy Carter, had become a paid agent of Libya, visiting the rogue nation at least three times and reportedly receiving a $220,000 loan and as much as $2 million to press Libya's case in Washington.

It's a good thing the NSA caught this; otherwise we might not have had a bunch of manufactured outrage and pointless congressional hearings that ended as soon as Jimmy Carter lost the 1980 election.
posted by compartment at 7:32 AM on August 5, 2013 [6 favorites]


Well, it was inevitable really. Whilst the internet may have begun with countless independent sites and little oversight, economies of scale and network effects dictate common platforms and frameworks. That no one is talking about killing the internet is a true testament to it's ubiquity – and potential necessity – in daily life. If there isn't a problem with the internet itself, and the data being collected (for that data is collected for the primary purpose of utility), then the problem must be the second-order effects, which is the use by law enforcement for the purpose of 'enforcing laws'.

And in context of the DEA investigation, there are two points that come to mind. The specific, and then the general.

The specific point is that regardless of how the DEA choose to enforce its mission, that mission is based on a very weak foundation, which are the drug laws of the US. In fact, when one looks closely at the drug laws of the US, one may see that actually, the drug laws are just as focused on controlling illegal flows of capital as they are controlling illegal flows of drugs. The DEA's tactics will always change to take advantage of any resources available to it. The larger, unaddressed point remains that the DEA is an outgrowth of a seemingly moralistic agenda that has had quite a profound impact on the lives of many American citizens. These new tactics may be heavy-handed (at best) and unconstitutional (at worst), however this is striking at the branches and not the roots. The root of the problem is that the DEA does not – and has not – respected the individual rights of both American citizens and non-American citizens alike. Not to say that the world would be a better place without the DEA, but this is just the latest in a long line of questionable activities that the agency is involved in. Until there is a fundamental review of American drug policy, and then subsequently the enforcement of that policy, the DEA will continue operating as it always has. Living in the shadow between legitimate and illegitimate, with the negative impacts chocked up to the fact that the country is better off with the DEA than without it. I suppose each of us will have our own view on that.

The larger general point has to do with the general disconnect of governance and the will of the people.

A large-scale data analysis programme is inevitable, given the tremendous progress that technology is making, and people's near-instant adoption of new technology. The same protocols and frameworks that allow a million conversations to speed through a piece of glass slimmer than a human hair, across the ocean floor, and be distributed through the air, pretty much ensure the death of privacy. For the only a way a system of such magnitude works is through bulletproof tracking and correct identification of all the assets attached to the system.

This reminds me of something heard long ago in a driver's education course. By the time a speeder is caught speeding, they will have sped over 70 times or something. Therefore, the fines for speed are set not for a specific incidence of speeding, but to catch the general behaviour of speeding. If the fine for speeding is $700, that works out to a $10 per incident. If technology advances to allow speed monitoring in real-time, will the penalty be lowered to $10? It seems unlikely, even though that would make the most sense, if the aforementioned ratio is true.

The most sinister aspect of the NSA programmes are not that they happen – for they are sure to happen, given the state of technology – but that the citizenry has very little power to control those programmes. There will be no backdating of the technology clock, and therefore control can only be exercised through formal political channels. What we are seeing at the moment is the asymmetry of advanced technology being applied to a population that does not have channels to control it.

This is striking similar to the problem just experienced in the financial industry, where the capabilities of the industry so far outran regulation, that even after the financial crisis shook the American economy to its core, five years later, little has changed. As fast as new rules can be made, those rules are marginalised. One thing that did not change after the financial crisis was the continued march of economic inequality that has been plaguing American for nearly a generation now. For those on the top, the financial crisis represented a pause. For those on the bottom, it was another reminder of their general irrelevance to the powers that be.

That the NSA programme exists and has been outed is a least an honest assessment of what that the citizenry is exposed to, and the true capabilities of its government. That the government continues not to actively engage in discussions about that programme, or deal with it on a proactive basis is an indication that what the citizenry thinks about that programme is largely irrelevant, as far as the government is concerned. This is a similar response to the financial crisis, where the primary result was not that government governed the financial industry, but rather that the financial industry largely proved itself to be beyond governance.

Perhaps we are seeing the same now, with information infrastructure. The problem with the NSA programmes are not that they exist and are utilised, but that the citizenry is subject to the existence and utilisation of those programmes without a meaningful mechanism of control, in terms of how those programmes are used.

The banner of national security is a highly effective one, for who can argue against the directive that the nation must be secure? Yet, the information collected is not going to stop with those looking to threaten national security – that information is being collected on everyone, both American citizens and non-American citizens alike.

As there is no technological way to constrain programmes like this – for indeed, their utility and value to society are tremendous – the only controls that can be put in place are those enacted by laws – by government itself. Thus, whilst this programme is ostensibly about technology and the capabilities of government to exercise extreme power as it sees fit, it is really a very interesting indicator of where government sees the limits on exercising that power, if indeed there are any limits.

If in the face of nearly infinite power, the government does not readily also identify the limits of using that power, especially in respect to the citizenry it purports to represent, I fear there are much bigger problems afoot than the ability of the NSA to amass extensive amounts of information.

And as I write this, I realise that I am a poorly-informed and obtuse commentator on matters such as these. I know only what I have read and skimmed since the media coverage began. Chances are that this is a much bigger story, with much larger implications than I know, or am capable of discussing. So please take what I have said with that caveat in mind.
posted by nickrussell at 7:33 AM on August 5, 2013 [20 favorites]


Also, don't mainstream news outlets typically, er ... pick up Reuters articles? Besides the Bangor Daily News?
posted by RobotVoodooPower at 7:35 AM on August 5, 2013 [1 favorite]


Now, I know what they'll say: The answer is to this is more snooping. I expect the spiderbots from Minority Report to come out any day now.

The spiderbots from Minority Report would be awesome, so long as they are only used to investigate locations for which the cops have a warrant. They're a heck of a lot better than people busting open your doors and ransacking your place for a suspect while maybe shooting your dog.
posted by Going To Maine at 7:46 AM on August 5, 2013


What's a warrant? Are you talking about the old hair metal band? Why would cops have an old hair metal band?
posted by entropicamericana at 7:47 AM on August 5, 2013 [6 favorites]


The handover of inadvertentely discovered evidence by NSA in most cases would be fine. For years, court rules have allowed the use of such material in various situations of inadvertent discovery. The list is too long and too detailed for me to go into--but an excellent criminal lawyer here could jump in and explain many of the various situations.

But "parallel construction" is too dangerous and must be stopped. Let me explain why:

Our Fourth Amendment law goes farther than anyone else's worldwide and excludes use of evidence obtained in a manner that violates the Fourth Amendment rights of the defendant. It prohibits even derivative use of the information under the "Fruit of the Poisonous Tree" doctrine. But parallel construction obscures the facts of collection which could tell a defense lawyer or a judge what went on and if the Fourth Amendment was violated in the gathering of the information. It also exposes prosecutors to charges that they were less than candid before the tribunal, a bedrock legal ethics rule. It also means superiors may be asking officers and agents to lie in situations where they may not. Frankly, it is quite likely a criminal violation of 18 USC 1001 if the officer or agent provides misleading information to a prosecutor.

It must end.
posted by Ironmouth at 7:48 AM on August 5, 2013 [27 favorites]


It also seems obvious that this practice predates the ability to get all this stuff from NSA, as this unit stretches back to 1994.

Only on the edges is the NSA data collection in a potential position to collect data which violates the Fourth Amendment. But "parallel construction" is a deeper problem--it is putting a name and the approval of management on a practice the courts have strived to make illegal for many years.

Also, the party who leaked these documents did not break any law, as they are not classified.
posted by Ironmouth at 7:53 AM on August 5, 2013


NSA stretches back to 1952, Ironmouth. And has been collecting information on American citizens on the edges of legality for much of that history. NSA has long since seen the Fourth Amendment as an inconvenient barrier to doing their job, one they gladly go under, over, and through. The problem of illegal NSA domestic surveillance "inadvertently discovering evidence" isn't new, it's just bigger now.

Some big portion of Americans think it's great that NSA can bust druggies.
posted by Nelson at 7:58 AM on August 5, 2013 [1 favorite]


On the other hand, this is a clear demonstration of utility; it just happens to be unrelated to terrorism.

It seems that any time a Fourth Amendment case is brought up, the counter argument is that whatever tactic the authorities use is inevitably called an "important tool" for law enforcement, as if that weren't completely beside the point.

Various law enforcement tactics, from "stop and frisk" to global wiretaps, can be an "important tool" for law enforcement and still be an unreasonable search according to the Constitution.

In fact, these days I tend to suspect the more a tactic is defended as an "important tool," the more likely it is to be an unreasonable search. After all, if it weren't unreasonable, one would suppose it'd be defended on those grounds.
posted by Gelatin at 8:13 AM on August 5, 2013 [14 favorites]


> Some big portion of Americans think it's great that NSA can bust druggies.

Dirty Harry wants to know why you pansies keep harping on these scumbags' rights.
posted by bukvich at 8:15 AM on August 5, 2013


I'm glad to see you here taking a stand on this, Ironmouth, as I completely agree with your take on the law. This "parallel construction" business needs to stop. It's bad enough we no longer have any meaningful control over the systems that perform surveillance on us, but now we're supposed to let that surveillance apparatus effectively nullify the intent and letter of our 4th Amendment protections?
posted by saulgoodman at 8:32 AM on August 5, 2013 [2 favorites]


On the other hand, this is a clear demonstration of utility; it just happens to be unrelated to terrorism.

It seems that any time a Fourth Amendment case is brought up, the counter argument is that whatever tactic the authorities use is inevitably called an "important tool" for law enforcement, as if that weren't completely beside the point.


I was attempting a little bit of irony, but apparently didn't succeed...
posted by Going To Maine at 8:33 AM on August 5, 2013


under the "Fruit of the Poisonous Tree" doctrine

Complete derail, but I happened to notice this in an older episode of Law & Order last night and was wondering: shouldn't it be "Fruit of the Poisoned Tree", given the problem is the fruit of the tree has been permanently tainted by an act? No one would ever try to eat from a poisonous tree (and I'd think such a tree wouldn't bear anything we'd consider "fruit" as it would be counter-productive from an evolutionary perspective).

posted by yerfatma at 8:34 AM on August 5, 2013


When I wrote "...as I completely agree with your take on the law..." I meant in this case, if that wasn't clear from context. Ironmouth and I definitely don't always see eye-to-eye.
posted by saulgoodman at 8:48 AM on August 5, 2013


yerfatma, I think the metaphor is that the tree itself is the evidence, and anything that you try to prove with that evidence would be the fruit. If the tree is bad, all its fruit is also bad.
posted by whitecedar at 8:51 AM on August 5, 2013


How do we fix this? Could a court overturn all DEA convictions in mass or must each defendent appeal individually?
posted by jeffburdges at 8:53 AM on August 5, 2013


At minimum, all federal defendents should be advised to take their casea through discovery if not the full trial. It's just soo likely they obtained evidence illegally.
posted by jeffburdges at 8:59 AM on August 5, 2013 [1 favorite]


The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial.

As far as I'm concerned, if someone tells you that practice doesn't violate a defendant's Constitutional right to a fair trial, you can safely stop thinking of them as an expert.

Also, ditto saulgoodman: Ironmouth and I strongly disagree about the extent to which the known NSA surveillance violates the Fourth Amendment. But we're completely on the same page about this part. Criminal defendants have a right to know how the evidence against them was gathered so they can challenge it in court. Maybe it'll turn out I'm right, and maybe it'll turn out Ironmouth is right, and we'll get an answer and that's the system working. But the whole thing breaks down if defendants can't raise challenges in the first place.
posted by jhc at 9:00 AM on August 5, 2013 [5 favorites]


If you take the word of NSA and some in Congress, then all that is being done is the collection of metadata, harmless archived materials that can be searched when needed. But that is not all that is being done according to THESE INTERVIEWS
posted by Postroad at 9:03 AM on August 5, 2013


Is it just me or have the pace of leaks started to speed up since the NSA story broke? I mean at this point it seems like someone is leaking something new every week now.
posted by AElfwine Evenstar at 9:03 AM on August 5, 2013


Only on the edges is the NSA data collection in a potential position to collect data which violates the Fourth Amendment. But "parallel construction" is a deeper problem--it is putting a name and the approval of management on a practice the courts have strived to make illegal for many years.


But you can't use the "NSA" data collection in court without parallel construction: the two go hand in hand since discovery re: NSA is verboten. Secret evidence poisons the whole trial process regardless of attempts to construct safeguards see: guantanamo.
posted by ennui.bz at 9:05 AM on August 5, 2013


Is it just me or have the pace of leaks started to speed up since the NSA story broke? I mean at this point it seems like someone is leaking something new every week now.

I think that was the point.
posted by ryoshu at 9:05 AM on August 5, 2013



It's also pretty depressing to have the Obama Administration make Rand Paul look like the sane one on this issue.


Precisely. At the moment, if my options are to be Clinton, Biden, Kerry, or any other NSA-Dem, or Rand Paul, I have to say I'd give the latter serious consideration for my 2016 support. I'd have to hold at least one nostril closed for any of them, so the question is how much I care whether it's my right or left nostril that gets more pressure given the all-pervasive stench coming from Washington DC.

Or maybe I'll just stay home. Barack Obama has finally convinced me for certain that it doesn't really matter if you vote, let alone for whom.
posted by spitbull at 9:27 AM on August 5, 2013 [4 favorites]


How do we fix this? Could a court overturn all DEA convictions in mass or must each defendent appeal individually?

It's too early to know what's happening here or how widespread it is. But let's say it turns out that a large number of DEA agents have by policy been illegally faking evidence, and that it doesn't just taint a handful of particular cases, but every case they touched over the course of a decade. (I'm not saying this is likely, but let's go with it.)

As it happens, we're working through a similar situation with the Annie Dookhan drug lab scandal in Massachusetts right now. To oversimplify, it turned out that an analyst at a state drug testing lab was so fast at her job because she was just guessing about the answers instead of actually running the tests. ("You say he was selling heroin? OK, this is heroin."). Thanks to her productivity there are tens of thousands of convictions, guilty pleas etc. that are based on unconstitutional evidence, plus a bunch more that used those convictions as predicate offenses or that came out of the same lab that failed to detect her incredibly suspicious behavior or whatever.

What's happening is basically a giant disaster. There will at some point be an Inspector General's report that will make recommendations, but that's been going on for a long time and may not be done any time soon. Counsel has been appointed for the potentially affected defendants (assuming they've all been found), and the state has disclosed a massive dump of documents from their investigation so far. Every case is indeed being appealed individually, which (since the courts are understaffed to begin with) is not the most viable situation. No one (e.g. the legislature, governor or high court, any one of which could potentially offer a plan) has stepped forward -- because who wants to be responsible for announcing that thousands of Them can go free? The courts are the least political, but they're also the least equipped to set up a new system to handle the problem en masse. And in the meantime, people are serving out unlawful sentences; you can't retroactively return a year of someone's life while they waited in prison for their case to be heard.

So anyway, to re-rail: if this situation follows the Massachusetts template, we fix this by starting an independent criminal investigation into the DEA's conduct, which generates information relevant to the legality of various convictions, which prosecutors are required to disclose to the people who were convicted, which in turn sets off a massive wave of litigation that no one is willing to deal with.
posted by jhc at 9:30 AM on August 5, 2013 [11 favorites]


how would this play out in court cases if i can be prosecuted using NSA-collected data that was obtained under means not necessarily specific to my case, yet in my defense i cannot rely on access to the same data sources to prove my innocence? prosecutors would not be seeking evidence that i did not commit a crime, so they wouldn't search for it in the first place and thus would not have to share it with the defense; if they did find such information, there's no way for the defense to know it was located anyway (because the defense doesn't have the same access to the data set), so it could be easily withheld.
posted by fallacy of the beard at 9:31 AM on August 5, 2013 [2 favorites]


how would this play out in court cases if i can be prosecuted using NSA-collected data that was obtained under means not necessarily specific to my case, yet in my defense i cannot rely on access to the same data sources to prove my innocence? prosecutors would not be seeking evidence that i did not commit a crime, so they wouldn't search for it in the first place and thus would not have to share it with the defense; if they did find such information, there's no way for the defense to know it was located anyway (because the defense doesn't have the same access to the data set), so it could be easily withheld.

Do you want the bad news or the worse news first?
posted by odinsdream at 9:32 AM on August 5, 2013 [1 favorite]


How do we fix this?

Screw the Democrats and Republicans. Vote for the candidates you actually agree with, and work for revolution on the side. Every little bit helps toward undermining the regime's legitimacy- leak, write, organize, march. But don't just keep pulling the lever expecting a different government to come out.
posted by anemone of the state at 9:33 AM on August 5, 2013 [8 favorites]


And honestly, life is too short to just hope things are going to get better in the long term. Because they fucking won't.
posted by anemone of the state at 9:35 AM on August 5, 2013


Is it just me or have the pace of leaks started to speed up since the NSA story broke? I mean at this point it seems like someone is leaking something new every week now.

I've been very much enjoying the slow trickle of information from the Guardian. I could be misreading it, but it looks to me like a cross-examination/interrogation strategy: publish a little information, get the NSA/administration response on record, publish a little more information, get another response on record, and watch how the explanations change. It's a lot harder to come up with a cover story when you don't know how much the other side already knows.
posted by jhc at 9:39 AM on August 5, 2013 [15 favorites]


You know, it's getting to that point where I have to look at all of the Alex Jones conspiracy freaks and admit, "Ok, you weren't entirely wrong about all of that stuff."

You have no idea how much it pains me to do that.
posted by Bathtub Bobsled at 9:53 AM on August 5, 2013 [5 favorites]


Quis custodiet ipsos custodes?

Really, it's the same as it's always been. We just seem to have fewer and fewer people willing to do it and, worse, fewer and fewer people willing to even take the question seriously.
posted by Benny Andajetz at 9:55 AM on August 5, 2013 [3 favorites]


Is it just me or have the pace of leaks started to speed up since the NSA story broke? I mean at this point it seems like someone is leaking something new every week now.

I think papers have been sitting on stories for a while and are going to press with them now that they know that people are interested and that foreign papers are covering it.
posted by empath at 10:23 AM on August 5, 2013 [1 favorite]


NSA stretches back to 1952, Ironmouth.

Well, that name plate does. Since the only reason it was created is because the Armed Forces Security Agency wasn't as effective it's effectively a reorganization rather than a novel agency.
posted by jaduncan at 10:25 AM on August 5, 2013


I've been very much enjoying the slow trickle of information from the Guardian.

Yes this has been pretty great, but I was referring to leaks other than the Snowden leak...like empath was referring to.
posted by AElfwine Evenstar at 10:32 AM on August 5, 2013


The reason the 1952 date is important is that Truman's Executive Order establishing NSA also laid out that the organization was explicitly only to spy on foreigners. Not Americans. If I recall Puzzle Palace correctly this is the origin of the idea that NSA has relatively little oversight, but in exchange agrees to not spy on Americans. I can't find a copy of Truman's order (is it still Secret?!) but Reagan's update in 1981 has a similar flavor.
no foreign intelligence collection by such agencies [including NSA] may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons
That executive order itself is obsolete now in the post-DHS administration, but the principle of domestic vs. foreign intelligence is still believed to sort of govern NSA. Except in practice it really doesn't anymore. NSA has always strained against the domestic spying restriction in various ways, but the Snowden documents have demonstrated they barely pretend to obey it or the Fourth Amendment anymore.

Anyway, my point is the idea that NSA surveillance could threaten American civil liberties is not a new one. It's an old and important principle. But in the intervening years since 1952 most of our politicians have forgotten it. It's an interesting contrast to Germany and its reaction to the Snowden links. The Stasi memory is much fresher there.
posted by Nelson at 10:43 AM on August 5, 2013 [9 favorites]


"I don't really have anything to hide,"

I try to explain this to the "Nothing to hide" crew as, look, I don't have anything to hide when I read a book, but that doesn't mean you can read over my shoulder.
posted by klangklangston at 10:58 AM on August 5, 2013 [2 favorites]


Yeah for reals, klang. I keep saying to people: It's not that you have nothing to hide, it's that you can't have anything to hide.
posted by Divine_Wino at 11:07 AM on August 5, 2013 [1 favorite]


I'm unsure if it matters if SOD actually touched many cases, jhc. Ideally, any defendant touched by the DEA should've grounds for new discovery. If that discovery yields "it's classified" the courts should grant a retrial sans tainted evidence. Although obviously they could declassify all the SODs record and correspondence with the NSA.

If they'll appeal each case individually, must all be handled by appellate courts or could they flood the lowest courts using some quick appeal for retrials? If the governor, president, etc. won't pardon them all, then ideally their lawyers might prevent the lower courts from making any progress on new cases, eventually forcing the executive to issue pardons en mass.
posted by jeffburdges at 11:12 AM on August 5, 2013


The sneaky switch that set the stage for the NSA’s call records program: The wording of Section 215 of the Patriot Act was modified at the last minute in 2005.
posted by homunculus at 11:26 AM on August 5, 2013 [2 favorites]


US embassy closures used to bolster case for NSA surveillance programs: Congress told that NSA monitoring led to interception of al-Qaida threats but privacy campaigners fear ulterior political motives
posted by homunculus at 11:29 AM on August 5, 2013


One solution might be for people to not be so fearful, and stop supporting politicians and policy which exploit your fears.
posted by maxwelton at 11:31 AM on August 5, 2013 [6 favorites]


no foreign intelligence collection by such agencies [including NSA] may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons
That executive order itself is obsolete now in the post-DHS administration


No. This is the same rule. "Undertaken" means you cannot start an operation to find purely domestic information. And this is how it works--they are looking at overseas stuff and they find a connection to a US person and that is Ok under FISA. If they want that person's domestic calls tapped, they get a warrant. The business records exemption has explicitly covered every pen register since '79 and was assumed to be that way before that.
posted by Ironmouth at 11:55 AM on August 5, 2013


Oh, they just happen to find a "connection" to a "US person" (also known as a freaking *citizen,* I believe), is that how it works?
posted by spitbull at 12:06 PM on August 5, 2013


"Undertaken" means you cannot start an operation to find purely domestic information.

This is true, but we seem to be increasingly finding out that that the NSA's solution to finding out information on overseas individuals is to acquire *all of the information about everyone everywhere* (at least to the extent they are physically/technologically able to) and then sift through it all later to get to the specific overseas stuff. Which aside from being basically the broadest possible interpretation of their mandate, and a mind-bogglingly Orwellian invasion of everybody's privacy all the time, also seems problematic if we're going to say that the "other stuff" they scoop up can be used by other agencies. At that point, warrants for emails or wiretaps are basically obsolete; any data you would request a warrant for, the NSA has likely already "inadvertently" collected in the course of their quest to collect All Of The Data.
posted by mstokes650 at 12:07 PM on August 5, 2013


At that point, warrants for emails or wiretaps are basically obsolete; any data you would request a warrant for, the NSA has likely already "inadvertently" collected in the course of their quest to collect All Of The Data.

No, no, no. Collection is not the same as being able to use information in open court. That is where the problem lies and where real people get affected by this.
posted by Ironmouth at 12:10 PM on August 5, 2013



Oh, they just happen to find a "connection" to a "US person" (also known as a freaking *citizen,* I believe), is that how it works?


A US person is not only a citizen. It is any person in the US. A huge difference. The whole purpose of international spying is to find people from outside the country that would harm us inside the country and stop them. Some are other intelligence agents, some are terrorists. We want to not be harmed. The question is where is that line drawn.
posted by Ironmouth at 12:13 PM on August 5, 2013


But wouldn't Collection allow you to force a plea bargain or even black mail someone?
posted by mulligan at 12:13 PM on August 5, 2013


Collection is not the same as being able to use information in open court. That is where the problem lies and where real people get affected by this.

This, I think, is one of those spots where your focus on the legality of things keeps getting people annoyed at you here on the blue; many of us think that "being able to use the information" is a problem regardless of whether that use is "in open court" or whether it's used to help law enforcement re-create the same info in ways they can use in open court (though I agree with you that "parallel construction" is appalling) or even if that information finds "use" that never has anything to do with court at all.

In other words, you seem to be partway down the same garden path of logic that let James Clapper lie to Congress by saying that the NSA doesn't collect info on Americans and then attempt to rationalize it away by saying it's not really "collection" if nobody ever actually looks through the info that was collected. No, the info is collected even if it isn't "used". In other news, if a tree falls in a forest it in fact does make a sound even if there's nothing there to hear it except a recording device.

tl;dr - "Real people" would be affected by this even if real open court trials were not.
posted by mstokes650 at 12:26 PM on August 5, 2013 [2 favorites]




But wouldn't Collection allow you to force a plea bargain or even black mail someone?


No, one could use the data to find other avenues of evidence collection gleaned from said programs to use in prosecution for other offenses garnered from the collection material.
posted by clavdivs at 12:29 PM on August 5, 2013


Well, that name plate does. Since the only reason it was created is because the Armed Forces Security Agency wasn't as effective it's effectively a reorganization rather than a novel agency.
posted by jaduncan

The real sex is at the NRO..."It has been proposed that the NRO share imagery of the United States itself with the National Applications Office for domestic law enforcement.[9] The NRO operates ground stations around the world that collect and distribute intelligence gathered from reconnaissance satellites."


Our Fourth Amendment law goes farther than anyone else's worldwide and excludes use of evidence obtained in a manner that violates the Fourth Amendment rights of the defendant. It prohibits even derivative use of the information under the "Fruit of the Poisonous Tree" doctrine.


Then how does RICO figure into your explanation.
posted by clavdivs at 12:38 PM on August 5, 2013


This New Yorker article on civil forfeiture gives some background on why "just fight the misconduct in court" isn't usually an option.
posted by RobotVoodooPower at 12:49 PM on August 5, 2013 [4 favorites]


Precisely. At the moment, if my options are to be Clinton, Biden, Kerry, or any other NSA-Dem, or Rand Paul, I have to say I'd give the latter serious consideration for my 2016 support.

The most important thing the government needs to do right now is correct the ridiculous distribution of wealth that is destroying jobs. Rand and his Dad are just fooling with you and are concerned primarily with stopping that redistribution. But they say Gay Marriage! after they introduced bills to re-criminalize sodomy. They don't want enforceable civil rights laws.

Whereas most of this computer shit is angels dancing on the head of a pin. People reacting to movie plots and novels, not what is actually happening. Guess what? 1984 never happened. It is not the description of a factual system. Nor was any novel by Bruce Sterling, or that movie with Travolta and Hugh Jackman.

This is not to say that reasonable, informed persons cannot disagree on the best policy on the issue of what the government should be able to do while investigating crimes and trying to prevent foreign terrorists from attacking the US or the FSB from gaining military secrets. But to throw away the entire country by voting for Rand Paul because of an issue that has almost zero day-to-day effect on anyone seems insane to me. Totally insane. We saw what happened in 2000. Your vote is needed to stop the end of the country via insane economic policies and race hatred.
posted by Ironmouth at 1:11 PM on August 5, 2013 [4 favorites]


Then how does RICO figure into your explanation.

It doesn't. Why, legally, should it?
posted by Ironmouth at 1:12 PM on August 5, 2013


Ironmouth,

With the level of secrecy involved, how do we know it isn't having a day to day effect on people.

As to the wealth redistribution issue, Elliot Spitzer was arguably doing something to address that and then, from wikipedia which cites the link below:
One of the known uses of these data were the creation of suspicious activity reports, or "SARS", about people suspected of terrorist activities. It was one of these reports that revealed former New York governor Eliot Spitzer's use of prostitutes, even though he was not suspected of terrorist activities
[http://web.archive.org/web/20081215105850/http://www.newsweek.com/id/174601]

unfettered data collection means anyone doing something important can be shutdown or made to comply with the people who possess the data. That is a risk to the structure of our whole system.
posted by mulligan at 1:23 PM on August 5, 2013 [7 favorites]


Ironmouth,

With the level of secrecy involved, how do we know it isn't having a day to day effect on people.


Huh? Are millions having their day-to-day lives secretly affected without their knowledge? I would say there is no such thing as an effect never felt.
posted by Ironmouth at 1:38 PM on August 5, 2013


Chilling effects, for one.
posted by jason_steakums at 1:49 PM on August 5, 2013


And more than that it's a powder keg with a book of matches on top and a sign that says "DO NOT TOUCH MATCHES". Dangerous potential effects are important.
posted by jason_steakums at 1:52 PM on August 5, 2013


Ironmouth: My point is that a significant percentage of "US Persons" are ALSO "citizens." I understand the distinction, of course, but find its use invidious and evasive in any discussion of the matter at hand wherein the jurisdiction of the surveillance state is at issue. Failing to treat "citizens" as a class is the problem in search of a terminology.
posted by spitbull at 1:53 PM on August 5, 2013


Why ‘I Have Nothing to Hide’ Is the Wrong Way to Think About Surveillance
posted by homunculus at 1:57 PM on August 5, 2013 [2 favorites]


Also thanks for setting me straight on what the most important thing the government has to do should be. I didn't realize we had income inequality. I withdraw my desire for civil liberties until everyone is affluent and the air is clean.

S'ok. Freedom can wait.
posted by spitbull at 1:57 PM on August 5, 2013 [2 favorites]


And yes I'm willing to see this country descend into oblivion if the only option is freaking 1984.
posted by spitbull at 2:01 PM on August 5, 2013 [1 favorite]


In case anyone was following this story, you know that malware that infiltrated Tor last week?

Looks like it wasn't the FBI, as suspected. The malware pointed to the NSA.
posted by Bathtub Bobsled at 2:01 PM on August 5, 2013 [6 favorites]


Whereas most of this computer shit is angels dancing on the head of a pin. People reacting to movie plots and novels, not what is actually happening. Guess what? 1984 never happened. It is not the description of a factual system. Nor was any novel by Bruce Sterling, or that movie with Travolta and Hugh Jackman.

You see, most of this nuclear weapons shit is angels dancing on the head of a pin. People reacting to movie plots and novels, not what is actually happening. Guess what? World War 3 never happened. It is not the description of a factual event. Nor was any novel by Tom Clancy, or that movie with Stanley Kubrick and Peter Sellers.

I would say there is no such thing as an effect never felt.

You'd be wrong. But if law ever doesn't work out for you, consider a second career as an anesthesiologist!
posted by mstokes650 at 2:44 PM on August 5, 2013 [6 favorites]


entropicamericana: "I think it's a distinct possibility that the NSA is making shit up to divert our attention from the fall of the republic."

entropisterical
posted by symbioid at 3:10 PM on August 5, 2013 [1 favorite]


I wonder if this has ever happened:
- Johnny Phonecaller knows what Billy Drugrunner does.
- Johnny talks about Billy on the phone.
- The NSA listens.
- The NSA tells the DEA.
- The DEA busts Billy Drugrunner.
- The DEA credits a confidential informant with a tip-off.
- Billy thinks Johnny snitched.
- Johnny Phonecaller is killed.
If this ever happened, would the public deserve to know? Are there oversight procedures in place to report such an event? If such an event did happen, and the public did not know, could our drug enforcement policies ever be a product of informed consent by the body politic?
posted by compartment at 3:24 PM on August 5, 2013 [3 favorites]



Ironmouth: My point is that a significant percentage of "US Persons" are ALSO "citizens." I understand the distinction, of course, but find its use invidious and evasive in any discussion of the matter at hand wherein the jurisdiction of the surveillance state is at issue. Failing to treat "citizens" as a class is the problem in search of a terminology.


US persons is far, far wider. Includes every person on US soil. I want it to be 100% clear when we talk about the law.
posted by Ironmouth at 4:30 PM on August 5, 2013


You'd be wrong. But if law ever doesn't work out for you, consider a second career as an anesthesiologist!

Really? So we're having massive effects on this? Massive effects that outweigh poverty, racism and destruction? Please tell me how its more fucking important to elect Rand Paul because jeeze, those problems are far less important than this? We are told of chilling effects. There's no chilling effect if you just mentioned it out loud. These stories are coming out, aren't they?
posted by Ironmouth at 4:34 PM on August 5, 2013


This New Yorker article on civil forfeiture gives some background on why "just fight the misconduct in court" isn't usually an option.

New thread.
posted by homunculus at 4:39 PM on August 5, 2013 [1 favorite]


I know I've said this before, but...

America sucks more every day.
posted by quarter waters and a bag of chips at 5:32 PM on August 5, 2013 [2 favorites]


Includes every person on US soil.

Also includes U.S. citizens anywhere in the world, thankyouverymuch.
posted by one more dead town's last parade at 5:47 PM on August 5, 2013


As an expat, I basically have to assume everything I type is saved to some NSA server gulag somewhere, which is why I encrypt mostly everything.
posted by quarter waters and a bag of chips at 6:09 PM on August 5, 2013


> As an expat, I basically have to assume everything I type is saved to some NSA server gulag somewhere, which is whybecause I encrypt mostly everything.

T,FTFY
Fisa court-approved policies allow the NSA to:
Retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity;
(emphasis added)

If you attempt to have privacy, they will attempt to invade it.

Welcome to the panopticon.
posted by swr at 7:47 PM on August 5, 2013 [6 favorites]


Ironmouth: If the government can learn what you're talking about, and who to, and what you're planning, it makes it much more difficult for people to organize effectively against inequality, racism, and so forth.

The US Bill Of Rights came into being because the founding fathers knew government was not to be trusted. There's no equality without civil liberties.
posted by anemone of the state at 8:53 PM on August 5, 2013 [2 favorites]


Really? So we're having massive effects on this?

Yeah, we are. The NSA is lying to Congress and denying Congressional requests for information; the fundamental structure of our entire government is shifting right before our very eyes. If allowed to stand, we have a government agency that answers to no one and tramples Constitutional rights at whim. This is not hypothetical; this is what the NSA is doing right now. If allowed to worsen, we will very quickly cease to live in a representative democracy at all. This a hypothetical, but only barely; history is full of examples of secret police forces tasked with gathering secrets for their masters that quickly grew to have disproportionate influence over those masters.

But hey, you and I, we're not feeling anything. Just like if I anesthetize you and remove a kidney, it's totally fine, you didn't feel a thing, and you won't realize how fucked you are 'til way later.

Massive effects that outweigh poverty, racism and destruction? Please tell me how its more fucking important to elect Rand Paul because jeeze, those problems are far less important than this?

Holy false equivalence, Batman! Tell me about this law you imagine the Democratic candidate we should all vote for will get passed, that will automagically cure all poverty, racism, and destruction(?), because man, I am totally in favor of that law. Oh wait, what's that? You can't fix all those things with one law? Because one law dismantling the NSA could (in theory, don't hold your breath) get passed tomorrow and all these abuses we're learning about stop instantly. Our government is and has always been disproportionately capable of affecting itself and its own structure and its own abuses more effectively than anything else. So yeah, it's nice to stand there and say "Well hey, surveillance state sux but poverty sux worse amirite?" but we're not talking "fix poverty in 4 years" we're talking about 7.5% unemployment for four years vs. 9.5% unemployment for four years. And for that tradeoff, yeah, a surveillance state is a bad bargain in my estimation.

And unless we elect a radical socialist (ha, HA) I don't see the gap between the rich and poor shrinking in any case; there is literally no one we can even vote for short of a write-in who will work toward that, and you know it. Frankly in the short term all we can do about poverty is make sure our government doesn't slide further out of our control and into the pockets of the uber-rich and corporations, and guess what? The NSA is sliding. Has slid.
posted by mstokes650 at 9:09 PM on August 5, 2013 [8 favorites]


I just want to note that my last comment should in no way be interpreted as an endorsement of Rand Paul, Ron Paul, the late Pope John Paul, or any other Paul.
posted by mstokes650 at 9:18 PM on August 5, 2013 [1 favorite]


The Snowden Effect, Continued
posted by homunculus at 9:51 PM on August 5, 2013 [1 favorite]


entropicamericana: “Speaking of the NSA, isn't it great that despite all of their invasive snooping, they still can't narrow down any targets for these alleged threats the media is currently telling us to mess our collective drawers over? ”
Indeed. It sure is lucky we have the NSA, et al. to warn us of a "specific and credible" threat of an "al Qaeda" terror attack. It is almost certainly not a coincidence that "attack" story is leading every edition of most local and national newscasts right now instead of the revelations about their unlawful spying.
posted by ob1quixote at 11:48 PM on August 5, 2013


It is almost certainly not a coincidence that "attack" story is leading every edition of most local and national newscasts right now instead of the revelations about their unlawful spying

Perhaps it was A-Rod that planted the 'chatter'.
posted by nightwood at 12:35 AM on August 6, 2013


Please do check the Amash amendment full roll call before making campaign contributions, volunteering, or voting. We must really boot as many on the noes list as possible.
posted by jeffburdges at 1:59 AM on August 6, 2013 [1 favorite]


No guarantee that you'd get a yes vote from the next person at all. In fact you almost certainly wouldn't in a lot of cases. All the congressmen in the DC area are never, ever going to vote against any defense spending.
posted by empath at 2:08 AM on August 6, 2013


In Maryland, there were No votes from the DC area congressmen Hoyer and Delaney, but Yes votes from Edwards, Sarbanes, and Cummings, not soo far from DC. In Virginia, there was a Yes vote from the DC area representatives Moran and Connolly and a No vote from Wolf. DC's representative cannot vote.

Is there defense spending backing Hoyer, Delaney, and Wolf. Yes. Ain't so cut and dried though.

Actually both Moran and Connolly might need support next time since they're among the five who bucked the defense trend. Ditto Joe Courtney (D, CT-2), Jack Kingston (R, GA-1), and Addison Wilson (R, SC-2).

Is there any chance we might defeat Howard "Buck" McKeon (R, CA-25) in 2014? He raised half a million from defense contractors. CA-25 is basically the Nevada border with part of LA.
posted by jeffburdges at 2:55 AM on August 6, 2013


With SOD, law enforcement would gather incriminating information electronically, then instruct officers to create a fake investigation to hide the existence of SOD.

KNEEL BEFORE SOD.
posted by mecran01 at 7:02 AM on August 6, 2013 [1 favorite]


We must really boot as many on the noes list as possible

You may want to wait a bit on that:

Justin Amash, the Republican congressman whose measure to terminate the indiscriminate collection of phone data was narrowly defeated 10 days ago, said he was certain the next legislative push will succeed. "The people who voted no are, I think, hopeful to get another opportunity to vote yes on reforming this program and other programs," he said.
posted by nightwood at 7:06 AM on August 6, 2013


John Shiffman, one of the authors of the Reuters piece, was on Democracy Now today: A Domestic Surveillance Scandal at the DEA? Agents Urged to Cover Up Use of NSA Intel in Drug Probes
posted by homunculus at 9:30 AM on August 6, 2013 [1 favorite]


Yeah, we are. The NSA is lying to Congress and denying Congressional requests for information; the fundamental structure of our entire government is shifting right before our very eyes. If allowed to stand, we have a government agency that answers to no one and tramples Constitutional rights at whim.

Please cite caselaw showing violation of Constitutional Rights. It will have to over turn the following:
Given a pen register's limited capabilities, therefore, petitioner's argument that its installation and use constituted a "search" necessarily rests upon a claim that he had a "legitimate expectation of privacy" regarding the numbers he dialed on his phone.

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud, and preventing violations of law." United States v. New York Tel. Co., 434 U. S., at 174-175. Electronic equipment is used not only to keep billing records of toll calls, but also "to keep a record of all calls dialed from a telephone which is subject to a special rate structure." Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly employed "to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling." Note, The Legal Constraints upon the Use of the Pen Register as a Law Enforcement Tool, 60 Cornell L. Rev. 1028, 1029 (1975) (footnotes omitted). Although most people may be oblivious to a pen register's esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. See, e. g., Von Lusch v. C & P Telephone Co., 457 F. Supp. 814, 816 (Md. 1978); Note, 60 Cornell L. Rev., at 1029-1030, n. 11; Claerhout, The Pen Register, 20 Drake L. Rev. 108, 110-111 (1970). Most phone books tell 743*743 subscribers, on a page entitled "Consumer Information," that the company "can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls." E. g., Baltimore Telephone Directory 21 (1978); District of Columbia Telephone Directory 13 (1978). Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he "us[ed] the telephone in his house to the exclusion of all others." Brief for Petitioner 6 (emphasis added). But the site of the call is immaterial for purposes of analysis in this case. Although petitioner's conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as 'reasonable.'" Katz v. United States, 389 U. S., at 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he 744*744 voluntarily turns over to third parties. E. g., United States v. Miller, 425 U. S., at 442-444; Couch v. United States, 409 U. S., at 335-336; United States v. White, 401 U. S., at 752 (plurality opinion); Hoffa v. United States, 385 U. S. 293, 302 (1966); Lopez v. United States, 373 U. S. 427 (1963). In Miller, for example, the Court held that a bank depositor has no "legitimate `expectation of privacy'" in financial information "voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business." 425 U. S., at 442. The Court explained:

"The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Id., at 443.
Because the depositor "assumed the risk" of disclosure, the Court held that it would be unreasonable for him to expect his financial records to remain private.

This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. Tr. of Oral Arg. 3-5, 11-12, 32. We 745*745 are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.

Petitioner argues, however, that automatic switching equipment differs from a live operator in one pertinent respect. An operator, in theory at least, is capable of remembering every number that is conveyed to him by callers. Electronic equipment, by contrast, can "remember" only those numbers it is programmed to record, and telephone companies, in view of their present billing practices, usually do not record local calls. Since petitioner, in calling McDonough, was making a local call, his expectation of privacy as to her number, on this theory, would be "legitimate."

This argument does not withstand scrutiny. The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not, in our view, make any constitutional difference. Regardless of the phone company's election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. In these circumstances, petitioner assumed the risk that the information would be divulged to police. Under petitioner's theory, Fourth Amendment protection would exist, or not, depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls. Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.

Let me give you a hint. You can't. No such case exists.
posted by Ironmouth at 11:03 AM on August 6, 2013


Yeah, we are. The NSA is lying to Congress and denying Congressional requests for information; the fundamental structure of our entire government is shifting right before our very eyes. If allowed to stand, we have a government agency that answers to no one and tramples Constitutional rights at whim. This is not hypothetical; this is what the NSA is doing right now. If allowed to worsen, we will very quickly cease to live in a representative democracy at all. This a hypothetical, but only barely; history is full of examples of secret police forces tasked with gathering secrets for their masters that quickly grew to have disproportionate influence over those masters.

But hey, you and I, we're not feeling anything. Just like if I anesthetize you and remove a kidney, it's totally fine, you didn't feel a thing, and you won't realize how fucked you are 'til way later.

Massive effects that outweigh poverty, racism and destruction? Please tell me how its more fucking important to elect Rand Paul because jeeze, those problems are far less important than this?

Holy false equivalence, Batman! Tell me about this law you imagine the Democratic candidate we should all vote for will get passed, that will automagically cure all poverty, racism, and destruction(?), because man, I am totally in favor of that law. Oh wait, what's that? You can't fix all those things with one law? Because one law dismantling the NSA could (in theory, don't hold your breath) get passed tomorrow and all these abuses we're learning about stop instantly.


I'm talking about balancing whether or not solving racism and poverty is more important than something where almost no one is being searched. This is white people's problems writ large. We are supposed to vote for some guy who doesn't think the Federal Government should stop racial discrimination in drinking fountains, hotels and the front seats in buses and is opposed to the CFPB Elizabeth Warren is for. For what? This is so fucking important that it overwhelms our need to have an economically just (and functioning) society? We're supposed to vote for the guy who "had no idea" that his staffer Jack Hunter was a racist Confederate called the "Southern Avenger" who said this:

“Americans aren’t wrong to deplore the millions of Mexicans coming here now,” he wrote in 2007. “A non-white majority America would simply cease to be America for reasons that are as numerous as they are obvious – whether we are supposed to mention them or not.”

Because maybe you haven't noticed, but these folks are rolling back every protection for Black Americans out there. How exactly, is that not more important than the legal surveillance carried out by the NSA? You can call it unconstitutional all you want but the Supreme Court says no and has done so since before you were born.
posted by Ironmouth at 11:12 AM on August 6, 2013


Please cite caselaw showing violation of Constitutional Rights. It will have to over turn the following: [braindead judicial opinion omitted]

Well gosh, if the Supreme Court ruled on something, it must be right.
posted by entropicamericana at 11:15 AM on August 6, 2013 [2 favorites]


Please cite caselaw showing violation of Constitutional Rights

And if you can't, say lacking the legal background, please donate to the ACLU, the EFF, or your other favorite civil liberties group so they can create the caselaw. The Fourth Amendment is worth fighting for.
posted by Nelson at 11:30 AM on August 6, 2013 [5 favorites]


Please cite caselaw showing violation of Constitutional Rights. It will have to over turn the following: [braindead judicial opinion omitted]

Well gosh, if the Supreme Court ruled on something, it must be right.


You don't get to decide which Supreme Court decisions you will follow. Or Brown v. Board, Miranda, Heart of Atlanta Motel and a host of decisions we all like could be ignored safely.

Most importantly, you cannot claim that the programs in question are unconstitutional when there is case law directly on point holding the absolute reverse of your stated claim.

It would be incredibly stupid to love all those decisions, and then vote for Rand Paul because of this. Because he would appoint judges that would overturn them. He's on record being against them.
posted by Ironmouth at 11:35 AM on August 6, 2013


Most importantly, you cannot claim that the programs in question are unconstitutional when there is case law directly on point holding the absolute reverse of your stated claim.

You've already had pointed out to you many times in other threads that Smith is about a meaningfully different situation, so what case law do you think you're talking about? (And do you understand yet that the "reasonable expectation of privacy" mentioned in Katz is a product of contemporary society and not stuck forever in 1967?)
posted by one more dead town's last parade at 11:40 AM on August 6, 2013


Most importantly, you cannot claim that the programs in question are unconstitutional when there is case law directly on point holding the absolute reverse of your stated claim.

You've already had pointed out to you many times in other threads that Smith is about a meaningfully different situation, so what case law do you think you're talking about? (And do you understand yet that the "reasonable expectation of privacy" mentioned in Katz is a product of contemporary society and not stuck forever in 1967?)


So you claim that a court could rule that there has been a change in the reasonable expectation of privacy and therefore overturn Smith? Is there any case law showing that a court could do that for a Fourth Amendment case? If you are going to put forth the proposition that some sort of change in society could change such reasonable expectations and reverse a 4th Amendment case, you must cite that such a change can take place. Or did you make that up?

More importantly, how can the government be shown to be doing wrong when the Supreme Court decision this is based on is current law? How can you say that?

Put another way, I am quite glad to have a debate on whether or not this is good policy. However, the continual mis-stating of the law as it actually is in an attempt to make your argument stronger is wrong.

Second, Katz did not hold as you claim. In Katz the test used was not the one used in Smith. Katz did not specify a test. Instead the so-called "Katz test" was in the concurrence and effectively comes from Smith, where it became law. And there is not a word in that concurrence or in Smith that these standards are somehow subject to periodic reexamination based on some sort of magic wand you presuppose without citation. And without that, the end-around against a squarely on-point Supreme Court decision you propose is without any basis. There is no such Fourth Amendment case existing. Please provide a Fourth Amendment case which so holds or acknowledge that your claim that the searches are unconstitutional is without legal citation.
posted by Ironmouth at 12:31 PM on August 6, 2013


You've already had pointed out to you many times in other threads that Smith is about a meaningfully different situation,

In what way is it a meaningfully different situation? The fact that more than one person has the information kept? Since there is no warrant required, it cannot be a question of a general warrant. And if a person's rights have been violated they must sue individually, where the Smith decision would then be applied.

Please find me the case that demonstrates this is a meaningfully different situation.
posted by Ironmouth at 12:33 PM on August 6, 2013


The ways in which case is meaningfully different (scope, time, suspicion/lack thereof) have already been explained to you, and I'll have to assume that the "because I say so" responses are intended as trolling, with which I will not engage further.
posted by one more dead town's last parade at 12:47 PM on August 6, 2013 [3 favorites]


The ways in which case is meaningfully different (scope, time, suspicion/lack thereof) have already been explained to you, and I'll have to assume that the "because I say so" responses are intended as trolling, with which I will not engage further.

I'm the only one citing case law which turns out to be what it says. It is most certainly the Supreme Court who is saying so. You have provided zero cites to case law (the one cite to Katz provided by someone above shows that they don't know the difference between a concurrence and the precedental opinion), and you're saying I'm the one with the "I say so" responses?
posted by Ironmouth at 1:14 PM on August 6, 2013


I'm the only one citing case law which turns out to be what it says.

You keep hammering on Smith and continuing to pretend that the 2013 facts are no different from the 1979 facts, no matter how many times, and in how many threads, this is pointed out.

If it's not trolling, then what is it?
posted by one more dead town's last parade at 1:32 PM on August 6, 2013 [3 favorites]


Bruce Schneier: NSA Surveillance and Mission Creep

"This is really bad. The surveillance state is closer than most of us think."
posted by homunculus at 1:38 PM on August 6, 2013


If the Supreme Court can't find this unconstitutional, then we might as well throw out the Supreme Court, and if necessary, the constitution, because both are failing in their stated goals.
posted by empath at 1:43 PM on August 6, 2013 [5 favorites]


Nasser al Wuhayshi: Hello?

Ayman al Zawahiri: Hey man, listen very carefully man. Don’t answer the phone. You got that? Don’t answer the phone, even if it’s me calling because I think the phone is bugged man. Ok? …Ok? …. Hello?

Nasser : Hello?

Ayman: Hello!

Nasser : Hello?

Ayman: Hey man, what the heck are you doing, did you hear what I said…

Nasser : Ayman?

Ayman: Yeah! …no.. uh

Nasser : Is that you man?

Ayman: Uh, no, no, it’s Muqbil, man.

Nasser : Where are ya man!?

Ayman: Well I’m calling from…outside man, but listen th…

Nasser : Hey, ya got the bombs?

Ayman: Don’t say nothin about that on the ph…

Nasser : Ya Rab, man, you better hurry up and get over here man, everybody really wants to kill Americans.

Ayman: Hey man, will you cool it and listen to what…

Nasser : Hey where are ya man?

Ayman: I’m outside man. But listen to m...

Nasser : Hey, didja forget the Embassy address again?

Ayman: No, it’s, hey, liste…

Nasser: Write it down man.

Ayman: Listen, don’t say nothin about bombing the embass...

Nasser: Ok?

Ayman: The NSA is listening on the one-phay, man!

Nasser: It’s two two three four, Sa'awan Street…

Ayman: *singing "My Queen"* yah-sah moo waaaha mee daaaeee! Yah-sah moo waaha mee daaeee!

Nasser: ...in Sana’a, Yemen – ya got that?

Ayman: Yakhreb beytak! For the sake of Allah…

Nasser: Hey, right be … Muhammad’s van is parked right in front. You can’t miss it man. Ok?

Ayman: The NSA is listening on the phone, man!

Nasser: Ok?

Ayman: No! Don’t say nothi…!

Nasser: Hey, did you get the explosive vests too man?

Ayman: Oh, Allah…هو عاوز الضرب بستين جزمة

Nasser: Hello?

Ayman: Hello!

*knocking on the door*
Nasser: Hey, I gotta hang up there are some crew cut white guys pounding at the door..

Ayman: Yeah… I gotta split too man.

posted by Smedleyman at 1:43 PM on August 6, 2013 [1 favorite]


Please cite caselaw showing violation of Constitutional Rights.

So, if I violate your rights in some new, never-before-imagined way, but it never goes to court (or hasn't made it all the way through the court system yet), it wasn't really a violation of your rights? Really? That's how you want to argue this? Silence from the courts equals permission? No matter how flagrantly the violation flies in the face of the original law, that is, the Constitution?

How about this: Please show me caselaw that specifically discusses PRISM, XKeystone, and other modern, currently active NSA information gathering programs and finds them legal. Not similar cases about similar programs, and especially not 34-year old cases about activities that have faint similarities to these current programs, but *those specific programs*. By name. Oh wait, you can't, because what rulings there have been have all been by the FISA court and are all secret. Which, incidentally, is why nobody can get standing or sufficient evidence to bring a case about these programs before the Supreme Court - all the evidence is classified, the names of "targets" whose rights are being violated are classified, the damages are classified, and in the instances where these abuses of rights do intersect with the courts we've got "parallel construction" to cover it up and try to keep all those things secret.

That there is a broken system. The NSA can violate your rights at any time, answerable to nobody (except the FISA rubber-stampers who never say no; keep in mind, as I mentioned before and you chose to ignore, the NSA is currently not answering to Congress) and you can't find out about it; if you do find out about it (thanks to an enterprising and brave whistleblower, say), you can't bring it to court because you can't get standing or gather the evidence to build a case. At least that's my impression; if you can't cite caselaw that specifically mentions PRISM or XKeystone or Boundless Informant or similar current programs by name, maybe you can simply provide step-by-step instructions for how one would get such a case charging these programs with violating Constitutional rights to be heard and ruled on by the Supreme Court? I'm sure any number of folks who have been convicted by cases started from NSA tipoffs and built using parallel construction would love to know!
posted by mstokes650 at 2:47 PM on August 6, 2013 [5 favorites]


Do we have to have the same argument by the same folks in every "government-gone-wild" thread?
posted by nightwood at 3:14 PM on August 6, 2013 [1 favorite]


I'm talking about balancing whether or not solving racism and poverty is more important than something where almost no one is being searched. This is white people's problems writ large.

White people????? AHAHAHAHAHAHAHAHa oh wow jeez I don't even

No. Nothing about the War on Terror or the War on Drugs or any of their aftereffects is primarily a "white people's problem". It ain't hardly the white folks' problem at all, in fact; just like civil forfeiture, this is certain to be disproportionately targeting brown people. In this case, it'll especially affect brown people with Middle-Eastern sounding names or Middle Eastern friends.

And no, it probably doesn't affect a lot of people. Guantanamo remaining open doesn't affect a lot of people, either, but that doesn't mean it's not an erosion of the core principles of our democracy and fucking travesty that every single American should be ashamed of, and this is no different, except that we don't actually even know how many people this affects, and it would be vastly, vastly easier for this to start affecting everyone than it would be for the government to ship everyone they didn't like to Gitmo.

But there again, you're still convinced the Dems are going to "solve" racism and poverty. They're going to have to do a historically-unprecedented fanfuckingtastic job of solving racism and poverty to balance out with this country's continued slide into dystopianism.

This is so fucking important that it overwhelms our need to have an economically just (and functioning) society?

...you think we have an economically just (and functioning) society?

Let's be clear: I don't endorse Rand Paul. I posted that already. I'm not going to vote for Rand Paul. But I do absolutely think that the NSA and the unchecked growth of our government into an increasingly-militarized surveillance state that absolutely resembles something out of a dystopian scifi novel should be the second-biggest issue of the campaign (right behind global warming which won't end up getting discussed either). But at the same time, I do not believe that electing a mainstream Democratic candidate (or Republican candidate for that matter), no matter how focused they are or claim to be on "solving" racism and poverty, is going to result in a better country four years from now.

This country needs the dismantling of the power structures of the existing political elites. That can happen at the polls or it can happen through revolution (oh hai NSA watchlist) but it needs to fucking happen, and thinking you can postpone it until after "poverty" gets fixed is like thinking you can postpone arresting the mob bosses until after all the racketeering and extortion has been stopped.
posted by mstokes650 at 3:15 PM on August 6, 2013 [9 favorites]


You've already had pointed out to you many times in other threads that Smith is about a meaningfully different situation, so what case law do you think you're talking about?

I dispute that, entirely. A person makes a telephone call they have no expectation of privacy regarding the billing information. That is the square, head-on holding of Smith. That is exactly the situation here. Any person looking to exclude evidence in a criminal matter falls 100% within the ambit of the decision. Few decisions are as clear cut as this. As a practicing litigator, I don't see how you get around this. Its literally impossible. Civilly, the Smith holding defeats the "firmly established" prong of the qualified immunity analysis, making any suit fail on a motion to dismiss.

What element of this situation could possibly get around this? There is none. If you have a case, let's see it. Otherwise, those, with no legal training, no litigation experience and no cited case law are trolling.
posted by Ironmouth at 4:27 PM on August 6, 2013


and thinking you can postpone it until after "poverty" gets fixed is like thinking you can postpone arresting the mob bosses until after all the racketeering and extortion has been stopped.

I never said that. I said that voting for Rand Paul because of this made no sense given the damage he would do to even more critical issues.

The country survived from the invention of the telephone until 1978 with the government claiming and the Supreme Court allowing unlimited no -warrant full-on wiretapping in national security cases. Before FISA every President, from the most conservative, to the most liberal, claimed unlimted national security wiretap powers. Unlimited wiretap ability without a warrant! So now we are to believe that legal pen-registers will destroy the nation? Please. We were right to pass FISA. But the country did not collapse for the 102 years the executive branch wiretapped at will in National Security cases.

Much of the outrage I see on this issue is uniformed as to both the history of these questions and the legal authority upon which it is based.
posted by Ironmouth at 4:37 PM on August 6, 2013


Much of the outrage I see on this issue is uniformed as to both the history of these questions and the legal authority upon which it is based.

And most of the pushback against you is informed by the fact that the technical state of the art has changed significantly since 1978.

Smith speaks to the legality of collecting some metadata. But it's Moore's Law that has made it practical for the NSA to hoover up all of it.
posted by We had a deal, Kyle at 5:11 PM on August 6, 2013 [1 favorite]


Smith speaks to the legality of collecting some metadata.

Smith speaks to the collection of all metadata. Any billing information is fair game. The same goes for any information shared by anyone with any business. The overarching rule is more than 50 years old. It includes all banking info as well. It is simpy not a search. Never has been. Ever.
posted by Ironmouth at 5:31 PM on August 6, 2013


But the country did not collapse for the 102 years the executive branch wiretapped at will in National Security cases.

The country didn't collapse after 100 years of Jim Crow either. That doesn't make it right. I find it hard to believe that the Framers would approve of the current state of the Fourth Amendment, but I'm just your average uninformed non-lawyer. Maybe I could send away for an Acme Law Degreetm and my opinion would suddenly be worth something.
posted by entropicamericana at 5:34 PM on August 6, 2013 [3 favorites]


“Do we have to have the same argument by the same folks in every "government-gone-wild" thread?”

Wooo! Naughty amateur bureaucrats! Show me your titles! Chat now with a live civil servant!

Clark: Hello, I’m Clark.

Backwards ball cap dude: Yeah baby. What are you doing?

Clark: I’m routing Title 5 files of the United States Code, section 2101 for the Bureau of Federal Regional Development and Planning for Underdeveloped Suburban Areas, Parks, Mines, and Indians. Also shaving my pubic hair with the File Director.

Backwards ball cap dude: aww fuck yeah!

(sorry just blowing off steam before I march back into the flaming shitstorm)

---

The big part of the problem isn’t privacy so much as what can be done about it.

Back in the day, if Joe Fed was, say, peaking through your curtains, there wasn’t much you could do about it. By the same token, Joe Fed couldn’t machine automate curtain peaking so he could peer through 100,000 curtains at the same time.

But given that now he can the question is not so much what he can do with the information, but rather – how does one define actionable intelligence in a sea of data?
In this case, the DEA – whose existence is already predicated on a useless drug war that only marginally deals with the actual threat of narco-syndicates effects (violence, government corruption/subornation, etc) - is putting the cart before the horse.
Constitutional questions and ethical dilemmas aside – as a matter of procedure it’s to be expected really. Sort of like how kids think it’s smart to do their “show your work” math homework by deriving the answer with a calculator then writing down some busywork to make it look like they did the work.

And of course, it hardly matters given the nature of modern computing. You don’t need to memorize lengthy problems, but you do need to know how to find the answers. So recreating the trail that an investigation would create to derive the answer you want (that is, target what you want targeted) is a sound technique (again, other questions aside).
Where it all goes to hell – what answers are expected? What is it you want to target?
Right now the answer is “statistics!” That is – successful prosecutions. Jail time. Etc. For a variety of people involved in the drug trade.

The question is how useful – “useful” in terms of actually protecting society – is that?
Not very.

A machine going like hell looks like it’s doing something though. You might produce the same amount, or less, gold than a human miner, but damn look at all the rock and dirt the thing sifted through – amazing! That’s what the justification is, essentially.
(again, other questions aside).

However, there’s no intelligent agent leading the investigation that can discern what is useful, what deters dangerous elements, and what doesn’t.
So there’s less justification for using the human mind because you can’t put “intuition” on a budgeting spreadsheet.

Here, the tools have changed, as have the circumstances but human behavior, and more importantly, the human mind and needs hasn’t changed at all.

So these methods do – as they always have, regardless of sophistication - destroy doing actual investigation which can produce valuable tangents that result in useful work.
Importantly too, your targets’ mind hasn’t changed at all. So no matter how delightful your tools become, even if they’re completely justifiable and desired by your society (again, regardless of constitutional questions), method is driven by policy.

And if policy is unresponsive to the usefulness of the outcome (preventing things blowing up; criminals getting real power; mayhem; etc) and more interested in statistics, budgeting, appearance, etc. you’re going to wind up targeting only the low hanging fruit regardless of the nifty technology.
Because idiots and politically expedient targets are simply easier to catch.
Billy Carter, QED.

(hence the Cheech and Chong thing)

I mean, stopping an alcoholic gas station attendant with no real power from brokering a deal with Charter oil (and Robert Vesco who dropped $200k on Nixon (and Nixon’s nephew) for Libyan oil vs. shipping missiles to Iran (not to mention Vesco and the Sandinistas…ah don’t get me started) kinda two different things in terms of what’s dangerous/harmful to the U.S.
Ollie North has his own talk show FFS. That there highlights our priorities.

The thing about tools is that they’re only augmentations of intent.
IBM and punchcard machines revolutionized data processing. Organizational tools are wonderful things usually. The way the Nazis used them, not so much.

And even without evil intent, you can still develop a punchcard mentality. And indeed, in some ways this mentality – and these kinds of laws - are explicitly at war with collective intelligence and the elements of trust built into that way of thinking.

But again, such things have always been so. We think we can’t trust common people with “the word” of the bible. We can’t let people publish certain things so we tie them up and set them on fire. We can’t let people hear things on the radio. Etc.

Only now (relative ‘now’) it’s become feasible (or rather, less expensive than hiring infiltrators like the Pinkertons or overtime for COINTELPRO agents) from the other side. To listen to what they’re getting rather than attacking the production.

Meh. Same fight. Less oversight (since 9/11 anyway). I mean hell, even this – anyone remember MATRIX?
Or ADVISE?

Seriously, anyone think that just went away because people didn’t like it? The thing itself might change name but it's going to return in another form and further under the legal radar.

Same thing here.
We’re going to need a sea change in policy before the techniques change.
Cannabis is being decriminalized. That should help.
At least help not flush money down the toilet investigating and incarcerating the mellow instead of the actually dangerous bastards.
posted by Smedleyman at 6:20 PM on August 6, 2013 [1 favorite]


Much of the outrage I see on this issue is uniformed as to both the history of these questions and the legal authority upon which it is based.

We aren't talking about metadata at this point, and you know it. They are logging the contents of calls, and emails, and every other form of communication.
posted by empath at 10:38 PM on August 6, 2013 [1 favorite]


There isn't much chance that either party's establishment backs a presidential candidate solidly opposed to the surveillance state. All the defense contractors would come out in force against a candidate too openly opposed to surveillance though, ditto law enforcement.

In 2012, all sensible Republicans stayed home, leaving Ron Paul, an array of lunatics, and one rich white boy corporate raider. In 2016, Rand Paul won't be given the same opportunity as Ron Paul because they'll field better rich white boy party favorites. Also, Ron Paul had far more chance of converting democratic voters in the general than Rand Paul.

At present, there are slightly more Democrats worried about this issue than Republicans. If the pressure continues, then perhaps Wyden, Udall, etc. might inspire Democrat voters more, maybe paired with someone who could deliver Florida and Texas via the hispanic vote.
posted by jeffburdges at 1:53 AM on August 7, 2013


Also, Ron Paul had far more chance of converting democratic voters in the general than Rand Paul.

Based on discussions with my friends, I disagree.
posted by empath at 3:18 AM on August 7, 2013


I'd personally noticed more overt pandering to racists from Rand Paul, which makes sense being in Kentucky rather than Texas, but obviously that's merely anecdotal too. Should check scorecards from ACLU, NAACP, etc.
posted by jeffburdges at 3:24 AM on August 7, 2013


I'm throwing some money at him in the presidential primary if he runs just to make it interesting.
posted by empath at 3:44 AM on August 7, 2013 [1 favorite]


The country survived from the invention of the telephone until 1978 with the government claiming and the Supreme Court allowing unlimited no -warrant full-on wiretapping in national security cases. Before FISA every President, from the most conservative, to the most liberal, claimed unlimted national security wiretap powers. Unlimited wiretap ability without a warrant! So now we are to believe that legal pen-registers will destroy the nation? Please. We were right to pass FISA. But the country did not collapse for the 102 years the executive branch wiretapped at will in National Security cases.

Honestly, it really seems like you're being deliberately obtuse.

"...in national security cases..." is now being directly interpreted to mean "any possible conversation ever, we'll make up a national security reason later."

Certainly this reality should be recognized in these conversations. Ignoring it makes it very difficult to take your further points seriously.
posted by odinsdream at 6:22 AM on August 7, 2013 [2 favorites]


Now That It's Been Exposed, DOJ Plans To 'Review' Information Sharing With DEA
posted by homunculus at 1:12 PM on August 7, 2013 [1 favorite]


Every Time The NSA Is Asked About Its Ability To Spy On Everyone... It Answers About Its Authority
posted by homunculus at 1:13 PM on August 7, 2013 [2 favorites]


EFF : DEA and NSA Team Up to Share Intelligence, Leading to Secret Use of Surveillance in Ordinary Investigations
posted by jeffburdges at 1:36 PM on August 7, 2013


IRS manual detailed DEA's use of hidden intel evidence

No word on the IRS being charged with espionage and treason.
posted by ryoshu at 7:47 PM on August 7, 2013 [1 favorite]


Top Ten Things that don’t Make Sense about NSA Surveillance, Drones and al-Qaeda
posted by AElfwine Evenstar at 7:02 AM on August 8, 2013 [1 favorite]


[try commenting again without all the insults please? Thank you.]
posted by jessamyn at 7:19 AM on August 8, 2013 [1 favorite]


Please cite caselaw showing violation of Constitutional Rights.

No one has to as there are no relevant rulings. The smith ruling refers specifically to pen registers and doesn't directly rule on the third party doctrine which is what we are talking about here. Also, the NSA doesn't just collect metadata. The fact that you keep bringing up Smith v. Maryland when that ship has clearly sailed is confusing and rather odd for a good faith contribution.

In what way is it a meaningfully different situation?

Here's one way that things are different now: The Internet. Yes, it's true. People actually put their whole lives out there online, whereas Smith v. Maryland was from a time when people only made phone calls. But again this is kind of a moot point as it has been shown that the NSA is collecting pretty much everything now anyways. Quit bringing up Smith v. Maryland as it has nothing to do with the NSA vs. everyone debate. It has to do with one limited program that collects metadata. There are other programs that collect other types of information including contents of phone calls and emails. Please stop lying by proxy through the Smith ruling. Your insinuation is that only metadata is being collected which is completely false.
posted by AElfwine Evenstar at 12:41 PM on August 8, 2013 [2 favorites]


In other news, the email service Snowden was using, offering encryption, has shut down.

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.

What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.

This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

posted by zabuni at 1:53 PM on August 8, 2013 [1 favorite]


N.S.A. Said to Search Content of Messages to and From U.S.
posted by homunculus at 5:21 PM on August 8, 2013 [1 favorite]


NY Times Reveals NSA Searches All Emails In & Out Of The US; Will It Offer Up Its Source For Prosecution?
posted by homunculus at 5:32 PM on August 8, 2013 [2 favorites]


Loophole Shows That, Yes, NSA Has 'Authority' To Spy On Americans -- Directly In Contrast With Public Statements

NSA's Rules Allowing Warrantless Searches On Americans Came THE SAME DAY It Was Told Searches Violated 4th Amendment
posted by homunculus at 11:23 AM on August 9, 2013 [3 favorites]


In other news, the email service Snowden was using, offering encryption, has shut down.

First Lavabit, now Silent Circle (new thread).
posted by homunculus at 11:30 AM on August 9, 2013 [1 favorite]


We need a faster approach to fixing this, jhc.

In the drug lab scandal, we need a "class action appeal" that simply orders retrials for every effected case in one fell swoop. Can defendants at least get out on bail once they're given a retrial? Also, defendants cannot get bail during appeals, right? If so, we're alright once we've pushed the cases back onto the lower courts, right?

In this case, we know the DEA, NSA, etc. will simply stonewall any criminal investigation into the practices at the DEA's Special Operations Division (SOD). How do you even determine the effected defendants if SOD refuses to release the classified information upon which they faked investigations? Ideally, you take the heavy handed approach of assuming that all evidence produced by the DEA is tainted if it resembles SOD's bullshit. All cases involving an anonymous informant perhaps?

As an aside, apparently prosecutors like George Papachristos knew they were asking Annie Dookhan to fabricate evidence, although none were yet charged, maybe her defense will end up draging some down with her.
posted by jeffburdges at 2:32 AM on August 12, 2013 [1 favorite]


The NSA-DEA police state tango: This week's DEA bombshell shows us how the drug war and the terror war have poisoned our justice system
posted by homunculus at 6:23 PM on August 12, 2013 [1 favorite]


In other news: Undercover agents spied on Keystone protestors. TransCanada and Department of Homeland Security keep close eye on activists, FOIA documents reveal
posted by homunculus at 7:07 PM on August 12, 2013


Confessed Liar To Congress, James Clapper, Gets To Set Up The 'Independent' Review Over NSA Surveillance
posted by homunculus at 10:51 AM on August 13, 2013 [1 favorite]


White House Changing Its Story On James Clapper's Role In Independent Surveillance Review
posted by homunculus at 1:03 AM on August 14, 2013 [1 favorite]


Snowden Leaks Have Likely Killed CISPA Dead
posted by homunculus at 1:11 AM on August 14, 2013 [1 favorite]


The Lies Aren't What Makes Obama's NSA Stance So Awful
posted by homunculus at 1:18 AM on August 14, 2013 [3 favorites]


Was just going to add that one. It's an interesting perspective.

Clinton, in parsing the meaning of “is,” was acting like a too-clever lawyer, splitting legal hairs to craft the tightest possible legal defense. The Obama administration’s 22-page White paper setting out the supposed legal basis for NSA surveillance demonstrates that the Obama administration, by contrast, is not relying on legal defenses that are too clever. Rather, it's relying on defenses that are too flimsy and weak. Many of these are warmed over versions of arguments that principled judges and officials rejected during the Bush administration, and that the Supreme Court is now being asked to reject once and for all.
posted by Drinky Die at 2:30 PM on August 14, 2013 [1 favorite]


Senate Intelligence Committee Has Been Able To Challenge Classification Of Documents For Forty Years; It's Just Never Done It

Wyden and Coburn hadn't known about this provision, and obviously they're outgunned on the committee, but maybe they're not totally outgunned on every issue.
posted by jeffburdges at 10:34 AM on August 15, 2013


NSA broke privacy rules thousands of times per year, audit finds
posted by ryoshu at 8:08 PM on August 15, 2013 [3 favorites]


Wacky NSA Slide Tells Agents Not To Worry About 'Incidental' Collection Of Info On Americans
posted by jeffburdges at 6:55 AM on August 16, 2013 [1 favorite]


It's quite a thing when the least ridiculous thing about that slide is that there's festive tiki clip art and a wacky font saying "DUAL AUTHORITIES SIGINT/IA" on official intelligence documents. But "If you deliberately targeted a US person, turn yourself in!" as a safeguard against abuse is infinitely more ridiculous.
posted by jason_steakums at 11:09 AM on August 16, 2013


What NSA Transparency Looks Like
posted by jeffburdges at 10:30 AM on August 20, 2013 [2 favorites]


Guy Who Wrote Legal Memos Defending US Torture Defends NSA Because It Takes Too Long To Obey The Constitution
Yet, another reason why I read techdirt rather than simply following interesting folks on twitter.
posted by jeffburdges at 10:42 AM on August 20, 2013 [1 favorite]


Rep. Morgan Griffith: If Latest Leaks On NSA Had Come Out Earlier, NSA-Defunding Amendment Would Have Passed
posted by jeffburdges at 10:51 AM on August 20, 2013 [1 favorite]


I swear techdirt beats my twitter feed for NSA news :

Declassified FISA Court Opinion Shows NSA Lied Repeatedly To The Court As Well

Rep. Mike Fitzpatrick Introduces Bill To Smack The NSA In The Wallet For Each Data Collection Violation

NSA Can Spy On Almost Anything, Gets To Set Its Own Filters

NSA & FBI Spied On All Emails In Salt Lake City Before & After The Olympics

NSA Program Found Unconstitutional Went On For 3 Years; Started Right After Telcos Got Immunity

North Carolina State University Gets $60 Million To Help NSA Build Bigger And Better Haystacks
posted by jeffburdges at 5:10 PM on August 21, 2013 [3 favorites]


Rep. Mike Fitzpatrick Introduces Bill To Smack The NSA In The Wallet For Each Data Collection Violation

Holy shit, my rep is doing something good for once.
posted by Drinky Die at 5:15 PM on August 21, 2013 [1 favorite]


Was DEA's Fake Claims Of Not Being Able To Intercept iMessages Part Of Evidence Laundering Efforts?

Vocal NSA Critic Has Dinner With NSA Boss, Explains To Him That Abuses Are Inevitable
"Of course, we see mission creep – once you build the mousetrap of surveillance infrastructure, they will come for the data. First it was counterterrorism, then it was drug investigations, then it was IRS audits. Next it will be for copyright infringement."

NSA Tries Hand At Irony, Accuses WSJ Of Misleading Public
Summary : NSA avoided denying any substantive claim made by the WSJ.
posted by jeffburdges at 11:16 PM on August 22, 2013 [1 favorite]


NSA Tries Hand At Irony, Accuses WSJ Of Misleading Public

Let's have fun with math!

Cisco estimates there was 27,483 Petabytes of Internet traffic per month in 2011. I'm sure it's much higher in 2013, but let's go with those numbers.

1 Petabyte = 1,000,000,000,000,000 bytes
27,483 Petabytes = 27,483,000,000,000,000,000 bytes

The NSA admits it touches 1.6% of global internet traffic:
1.6% of 27,438 Petabytes = 439.728 Petabytes

So the NSA admits it touches 439.728 Petabytes of traffic per month.

Let's say the average email is 100 KB (a very generous estimate). That would mean the NSA is collecting up to 4,397,280,000,000 emails per month. How many emails are sent per month? Roughly 8.91 trillion. (Again, this is using outdated numbers). By the NSA's own admission it could be touching half of all emails.

Of course, the NSA claims, "analysts only look at 0.00004%, of the world’s internet traffic." That means the NSA may only look at 109,932,000 emails. Per month. Who knew terrorists loved to communicate that much? Of course the NSA is monitoring more than emails, but I doubt many web pages are much over 100KB once you strip images, JS, and CSS.

These numbers become even more ridiculous if we assume they have some feature that filters out popular YouTube videos, Spotfiy songs, Netflix videos, etc.
posted by ryoshu at 9:00 AM on August 23, 2013 [2 favorites]


Drug Agents Use Vast Phone Trove, Eclipsing N.S.A.’s
posted by homunculus at 1:12 AM on September 2, 2013 [1 favorite]


In Secret AT&T Deal, U.S. Drug Agents Given Access to 26 Years of Americans’ Phone Records
posted by homunculus at 10:24 AM on September 3, 2013 [1 favorite]


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