EFF Whistleblower Wiretapping Suit Halted by Nuclear Option

May 2, 2006 7:47 PM

Bush administration signals intent to invoke the obscure state secrets privilege in order to stop the EFF lawsuit against AT&T, (previously discussed here) for providing the NSA direct access all 312 terabytes of its customers' telephone and internet traffic since 2001, (including those Good Vibrations charges you racked up). In a nutshell, according to legal experts, invoking the privilege kills the judicial process dead: the courthouse doors are closed, and there's nothing but grownup stuff to see here; move along, kids.
posted by squirrel (51 comments total)

This part here is kindof spooky:

In 2001, George W. Bush created a controversy by extending the accessibility of the State Secrets Privilege to allow former Presidents, and the offspring and descendants of former presidents, to invoke it to bar records from their tenure, through Executive Order 13233.

I understand why we might need a State Secrets Privilege for the current administration, open to abuse though it may be.

If there's a rationale for former presidents holding this, though, I'd like to hear it.

I'm also thinking having formal state powers follow bloodlines runs pretty counter to my understanding of America.
posted by weston at 8:00 PM on May 2, 2006

What's secret about AT&T and the NSA?
posted by jepler at 8:00 PM on May 2, 2006

weston: He wants to be judge favorably by history, maybe!
posted by aubilenon at 8:03 PM on May 2, 2006

Fantastic! (if you're a fan of fascism or monarchy)

Please, everyone, at least drop AT&T as your phone/internet provider.
posted by Nahum Tate at 8:05 PM on May 2, 2006

Funny, I've been doing research on this recently. I haven't read the post yet, but if it makes you feel better--even though the judiciary is very deferential to the executive, this privilege is very rarely applied in cases not directly involving national security (i.e., weapons designs, obvious geopolitics ramifications, etc.). One of the only times this was applied in a non-military setting was when the Republic of China declared independence and several commercial tankers (belonging to HK) mutinied and took up Chinese flag; the privilege was used to protect memos about Chinese sovereignty between the British and the Americans. So, in other words, the secret doesn't kill the judicial process instantly: the courts have to decided whether the scope of the privilege extends to the situation at hand. But maybe I'll change my mind when I actually look at the links!
posted by kensanway at 8:16 PM on May 2, 2006

That's easy weston; Bush has done horrible things he wishes to cover up, and extending that priviledge to not only himself as ex-president, but to his children, grandchildren, etc., is a shot at hiding these horrible things.
posted by odinsdream at 8:17 PM on May 2, 2006

In other news, police across the nation are keeping tabs on ordinary Americans.
posted by homunculus at 8:18 PM on May 2, 2006

I believe you're right kensanway

the DOJ has until the 14th to file documentation supporting the claim, and then it will be up to the court to decide whether or not the privilege applies in the case.
posted by pruner at 8:19 PM on May 2, 2006

I meant the 12th... not the 14th.
posted by pruner at 8:20 PM on May 2, 2006

Thanks for keeping it real, kensanway.

And thanks for informing us, squirrel.
posted by BlackLeotardFront at 8:33 PM on May 2, 2006

Remember Ollie North and the Contras, funding our secret national defense program by running cocaine?

That was the old days, before telecom.

Now, we can fund the secret national defense program by slightly modifying each and every financial transaction taking place.

Did you know that the 'mill' -- one tenth of one penny -- is still a legal unit of U.S currency?

Would you have been missing a mill less on your interest payments or other transactions?

Say, it's the simplest answer -- why else would there be this push to combine all power in the Executive, if they didn't have a way figured out to basically run the government for ostensibly free, reducing taxes to where the citizens are stupid and happy forever to go on with things as they are?

Just guessing, mind.
posted by hank at 8:55 PM on May 2, 2006

War is Peace. Freedom is Slavery. Private is Public.
posted by farishta at 9:00 PM on May 2, 2006

The executive order is also for covering-up after Bush the First and Iran/Contra. Daddy has to be lionized, too.
posted by Goofyy at 9:04 PM on May 2, 2006

312TB? Jesus fuck that's nothing - half the people I know who host porn have provided 3-5 gratis in the past few months. I can only assume that the 312TB in question is simply logs of the when and where of the connections, rather than the content.
posted by Ryvar at 9:06 PM on May 2, 2006

312TB? Jesus fuck that's nothing - half the people I know who host porn have provided 3-5 gratis in the past few months. I can only assume that the 312TB in question is simply logs of the when and where of the connections, rather than the content.

For the rest, there's Echelon.
posted by phylum sinter at 9:14 PM on May 2, 2006

"The technical aspect is easy, but you need to have the trust of the community and the security to safeguard the system." - from homonuculus's link

"We're still diddling around," says police technology expert Wormeli. - same article.

Well, there goes my trust.
posted by pwedza at 9:23 PM on May 2, 2006

It's order 666. Glad I'm not a Jedi.
posted by craniac at 9:27 PM on May 2, 2006

.
posted by russilwvong at 9:33 PM on May 2, 2006

interesting. when weston visited the wikipedia link, it said (as quoted above):

In 2001, George W. Bush created a controversy by extending the accessibility of the State Secrets Privilege to allow former Presidents, and the offspring and descendants of former presidents, to invoke it to bar records from their tenure, through Executive Order 13233.

it has since been changed to:

In 2001, George W. Bush created a controversy by extending the accessibility of the State Secrets Privilege to allow former Presidents, or their designated representatives, to invoke it to bar records from their tenure, through Executive Order 13233.

anyone got the text of the excutive order handy?
posted by sergeant sandwich at 10:21 PM on May 2, 2006

ah, here it is.
posted by sergeant sandwich at 10:25 PM on May 2, 2006

Executive Order 13233. Skimming it, it looks like the former-president or his designee; if he dies without designating someone, his family gets to designate someone. It also appears that the order only covers presidents who have held office within the last 12 years (that is, after 12 years, the privilege expires for a particular president).
posted by hattifattener at 10:30 PM on May 2, 2006

Is there any basis on which executive orders increasing the powers of the executive can possibly be legitimate? It's like we're living in a bad comedy.
posted by bingo at 10:48 PM on May 2, 2006

It also appears that the order only covers presidents who have held office within the last 12 years (that is, after 12 years, the privilege expires for a particular president).

That seems fairly reasonable, especially if it's subject to review by the courts.
posted by weston at 10:51 PM on May 2, 2006

Speech compresses very, very well -- 8 kilobytes a second at full quality, and as low as 2400bps (300 bytes per second) using something like MELP (which will actually drop to 1200bps but it doesn't sound great).

That being said, it's a stretch to imagine all calls from 2001 consuming only 315TB. The above is of course only with publicly available algorithms, though.
posted by effugas at 11:09 PM on May 2, 2006

Who was it said, "if you've done nothing wrong, you've got nothing to hide"?
posted by aeschenkarnos at 11:34 PM on May 2, 2006

So... that's on the order of 10-12 million hours of audio, right?
posted by weston at 11:38 PM on May 2, 2006

I can't believe that no one has considered the consequences of this with regards to the black-hat hacker community.

I foresee a MASSIVE DDOS attack or worse if this passes, i.e. "If we can't have t3h 1nt3rn3ts, NO ONE CAN!"
posted by deusdiabolus at 11:40 PM on May 2, 2006

The same guy who said, "Leave your front door unlocked just in case the police need to get in."
posted by emelenjr at 11:42 PM on May 2, 2006

I foresee a MASSIVE DDOS attack or worse if this passes, i.e. "If we can't have t3h 1nt3rn3ts, NO ONE CAN!"

If you're referring to the executive order, it doesn't get passed, its already in effect. And the hackers don't care (much)... this is basically exactly what Tor was created to circumvent.
posted by gsteff at 1:14 AM on May 3, 2006

Regarding the 312TB, the EFF's has an excellent faq explaining the numbers. The short of it is, that database stores the phone numbers and start and end times of the conversation, not the content.
posted by gsteff at 1:31 AM on May 3, 2006

gsteff--

I know the creator of Tor. Since ultimately Tor is used to connect to insecure services, anyone who can correlate traffic between every sender and every receiver defeats the system entirely. IOW, if you can log all traffic, you defeat Tor.
posted by effugas at 2:32 AM on May 3, 2006

effugas, I'm not familiar with Tor as such, but most of the 'blinding' services will send at least some random data even when not in use, so as to hide real requests.

And even if you can see all the traffic, I believe it's encrypted into Tor, and then takes a random number of encrypted hops from there before exiting into the insecure net. Even though you can see the web browsing happening, it'd be extremely difficult to tie it to a given end-user.

If it's properly designed, even if the NSA themselves put up some Tor servers, it should still be almost impossible for them to determine the identity of users connected to _other_ servers. (If you connect directly to an NSA-controlled Tor server, the jig's up.)

With the government's new power to execute no-knock, warrantless wiretaps and searches, though, I suspect they probably have compromised a number of the servers already. They don't have to ask anyone's permission anymore: per our lovely President, they can do whatever the fuck they want to, without any oversight at all.

And there's no recourse and no appeal.
posted by Malor at 2:44 AM on May 3, 2006

IOW, if you can log all traffic, you defeat Tor.

For sure. However, maybe I'm naive, but I really think that the amount of data that would have to be logged to reconstruct a Tor session from 2001 is simply too inconceivably vast for even the NSA, even if you're just recording the tcp connections, not the data. Tor sessions might be crackable in real time like that, but I just can't imagine that they're logging enough to track your Tor usage more than a few hours earlier.
posted by gsteff at 2:46 AM on May 3, 2006

It's order 666. Glad I'm not a Jedi.

Hey wait a minute.

For sure. However, maybe I'm naive, but I really think that the amount of data that would have to be logged to reconstruct a Tor session from 2001 is simply too inconceivably vast for even the NSA

I would have to agree. I think Tor is a moot issue though. Why go through all the trouble of logging all of that traffic when they can just monitor your communications on your LAN. At some point, if not already, there will probably be some mandatory monitoring capability built into every form of electronic communication device, be it cell phone, computer, etc. This shit really sets my tinfoil hat to spinning.
posted by i_am_a_Jedi at 3:43 AM on May 3, 2006

Remember Ollie North and the Contras, funding our secret national defense program by running cocaine?

yes,

That was the old days, before telecom.

...but obviously, you don't.

Did you know that the 'mill' -- one tenth of one penny -- is still a legal unit of U.S currency?

Would you have been missing a mill less on your interest payments or other transactions?

the raw, wide-eyed, achingly vomitous stupidity of this whole comment is... is... holy fuck.
posted by quonsar at 4:26 AM on May 3, 2006

We need more seeds on this torrent!
posted by furtive at 4:42 AM on May 3, 2006

... courts have to decided whether the scope of the privilege extends to the situation at hand....: Pardon, but FISA was brushed aside to accomodate NSA spying. And if you read simply documents that NSA has put on line you will discover that NSA SUGGESTED to the incoming Bush that there was a new need for spying under a new setup...Bush agreed. Now we discover, too, that the FBI was doing stuff they were not to do except with court order, but did it they did and got away with it. Thus I would be wary about invoking this and that protection. When you cry Security, you can do just about anything and get away wilth it. Esp. when the highest court in the land has your friends on it.
posted by Postroad at 4:44 AM on May 3, 2006

Hank, are you sure you haven't just watched Office Space one too many times? But also -- quonsar -- come on, if it was true would you even be surprised?
posted by bitter-girl.com at 6:39 AM on May 3, 2006

I remember when quonsar was funny.
posted by asok at 6:48 AM on May 3, 2006

"Did you know that the 'mill' -- one tenth of one penny -- is still a legal unit of U.S currency?

Would you have been missing a mill less on your interest payments or other transactions?"

I remember when that Superman movie with Richard Pryor used that trick. Also Office Space, which references the Superman movie. And now this thread references them both, and the circle of stoopit is complete.
posted by mr_crash_davis at 7:01 AM on May 3, 2006

hank: I would not be one bit surprised if such skimming schemes are already in operation by the Mafia and the like, who have reportedly invested heavily in computer fraud in the last 5 years or so.

But if the the administration was funding operations by some scam like that, why would they have needed to rack up more debt in the last five years than in all of our other history combined?

If you print the money, you don't need to steal it back.
posted by sonofsamiam at 8:03 AM on May 3, 2006

Who was it said, "if you've done nothing wrong, you've got nothing to hide"?
posted by aeschenkarnos at 2:34 AM EST on May 3 [!]

Someone who doesn't understand the concept of privacy.
posted by juiceCake at 8:22 AM on May 3, 2006

Cingular and other telcos/voip companies use unencrypted vpn's over AT&T's (now SBC's) network. Its amazing how many companies are tied together by network needs, and if one company is a security risk, they all are. Maybe some small company should treat this as a security breach, and sue AT&T for breaking Calfornia law about not informing them of a security breach in the network. Hell, could be a class action lawsuit against AT&T.
posted by IronWolve at 10:38 AM on May 3, 2006

It already IS a class-action suit against AT&T, but on behalf of AT&T customers. The EFF is seeking $22k per customer. The settlement could be in the billions, and would be an excellent deterrent for other sleazebag corporations willing to sell-out their customers to corrupt feds, such as this administration.
posted by squirrel at 11:57 AM on May 3, 2006

State Secrets Privilege

Perhaps he did it so that he'd be able to squelch public knowledge of the deep Nazi ties his family has held. It's really quite shocking how cuddly ol' granpappy Bush was with the Nazi regime.
posted by five fresh fish at 11:58 AM on May 3, 2006

Jesus tapdancing Christ how obvious does it have to get?
posted by Smedleyman at 12:32 PM on May 3, 2006

Bush is God's man and I'll not tolerate this bashing of our God appointed Dear Leader! So just shut up you heathens!
[cough]
posted by nofundy at 12:35 PM on May 3, 2006

Seriously, though... why hasn't this story been getting more play on the major news sources? Is that just a rhetorical question? I sure hope not.
posted by squirrel at 1:34 PM on May 3, 2006

Frivolous claims of secrecy
posted by homunculus at 2:29 PM on May 3, 2006

Thanks for that link, homunculus. Good read, and I agreed with everything until this last line:

...the media seems increasingly, and finally, willing to report on at least some of the abuses of power to which we have been subjected for the last five years.

I disagree. That's a fine way to end a good tirade--on a note of hope--but I see no indication that the media has abandoned that ship yet. For recent examples, note the near blackout on NSA developments, note even the blackout on Colbert's historic upbraiding. Big media is still safely in the pocket of big corporate. They are not our friends, and they have abandoned us. Believe it or not, Metafilter is one of the best things we have.
posted by squirrel at 10:02 PM on May 3, 2006

Jibber jabber!
posted by homunculus at 10:20 PM on May 5, 2006