Surveillance state in progress

November 8, 2007 9:46 AM

In 2006, the Electronic Frontier Foundation filed a class-action lawsuit against AT&T for cooperating with an NSA wiretapping program that created a "black room" in their San Fransisco office, which operated hardware that captured the entire stream of data travelling through AT&T's system (allegedly 2.5 gigabits of data/second). The details of this arrangement were revealed by Mark Klein, a 22-year employee with AT&T who stumbled across documents detailing the program in 2004. The lawsuit, which alleges that AT&T illegally cooperated with the NSA's domestic spying program, is facing a major hurdle in the Senate right now as Senators have reached a tentative agreement to give the company legal immunity from actions relating to their cooperation. This story previously on MeFi.

Note that according to Mr. Klein in the interview, no other telecom companies approached by the NSA complied with this request, citing concerns over the legality of the program. Says Mr. Klein: "If they've done something massively illegal and unconstitutional -- well, they should suffer the consequences. It's not my place to feel bad for them. They made their bed, they have to lie in it." I rather agree.

posted by baphomet (57 comments total)

I've heard it claimed that even if retroactive immunity passes, it itself is still unconstitutional. Does the EFF (or ACLU) have any plans to bring a meta-suit, if you will, in that event?
posted by DU at 9:54 AM on November 8, 2007

The problem isn't immunity so much as: Are they still doing this stuff?
posted by Blazecock Pileon at 9:59 AM on November 8, 2007 [1 favorite]

'Twas on the NPR this morning, too:
AT&T Wiretap Whistleblower Fights Senate Deal
posted by benATthelocust at 10:01 AM on November 8, 2007

Because let's face it, even if EFF wins, what judge will sentence CEOs to jail? They will just suffer mysterious heart attacks and disappear in the night.
posted by Blazecock Pileon at 10:02 AM on November 8, 2007

Nice post baphomet, concise yet thorough.

Lawsuits like this are why I give money to the EFF and the ACLU, they are about the only groups that will step up in cases like this.
posted by doctor_negative at 10:02 AM on November 8, 2007

Er, uh... and *this* this morning, too:
Senate Mulls Immunity for Telecoms
posted by benATthelocust at 10:03 AM on November 8, 2007

The (not) funny thing about FISA is that it grants amnesty from prosecution to telecoms, provided that they can demonstrate that they were acting in good faith (ie. within the law).
posted by i_am_a_Jedi at 10:03 AM on November 8, 2007

I just realized I made an error in the post- Mr. Klein says he became aware of the arrangement in 2002 (not 2004 as in the OP), but that he didn't go public with the information until he retired in 2004.
posted by baphomet at 10:10 AM on November 8, 2007

The (not) funny thing about FISA is that it grants amnesty from prosecution to telecoms, provided that they can demonstrate that they were acting in good faith (ie. within the law).

So if every telecom other than AT&T refused to participate due to legal concerns, could AT&T get away with arguing good faith?

Hahahaha. I crack myself up. Of course they can. Welcome to the Kleptocratic States of America.
posted by ryoshu at 10:14 AM on November 8, 2007

The problem isn't immunity so much as: Are they still doing this stuff?

No, it's both.
posted by DU at 10:18 AM on November 8, 2007

Democratic leaders put off that vote because of a competing measure from Republicans that on its face asked lawmakers to declare where they stood on stopping Osama bin Laden from attacking the United States again.

My *god* the Democrats are a bunch of fuckups. All the Republicans have to do is put on the rubber bogeyman mask and go "ooooOOOooooOOOOoooo! Terr'ists!" to make them fold like a pack of cards.
posted by ook at 10:19 AM on November 8, 2007 [3 favorites]

And the argument that AT&T was acting in good faith -- like the phone company doesn't have a single lawyer familiar with wiretapping laws -- is just inane.
posted by ook at 10:21 AM on November 8, 2007 [2 favorites]

Anyone who votes to give immunity should be jailed as accomplices after the fact.

Even the slightest shred of tolerance for this is unacceptable in a human being, let alone a Senator.
posted by Pope Guilty at 10:23 AM on November 8, 2007 [5 favorites]

The Ds are so very, very awful at framing. Call it "amnesty" and they'd have the dittohead nutjobs clamoring to kill the bill.
posted by DU at 10:34 AM on November 8, 2007

I've heard it claimed that even if retroactive immunity passes, it itself is still unconstitutional.

Well, ex post facto laws are unconstitutional under Article I, Section 9. If it's unconstitutional to make something illegal when it used to be legal, than it seems to me like it should also be unconstitutional to make something legal when it used to be illegal. That's probably too sensible to be how the law actually works, though.

This is really cramping my jones for an iPhone.
posted by kirkaracha at 10:42 AM on November 8, 2007 [1 favorite]

Can't believe they're gonna cave on this.

Indeed, Republican leaders immediately praised their ability to block the N.S.A. measure as a sign of the Democrats’ weakness on that issue. Representative Heather A. Wilson, Republican of New Mexico, said Speaker Nancy Pelosi “underestimated the intelligence of the American people and the bipartisan majority in the Congress to understand what matters most: preventing another terrorist attack.”

What a bunch of BS. The Republicans have a lot of Democrats convinced of this, but they're wrong. That's not at all the first priority on voters' minds, as even the most rudimentary polling will reveal. I mean, if you're going to pander, at least know your audience. I'd hazard a guess that standing up to the Republicans' attempts to roll over civil liberties would garner more votes and would help cement the Democrats' image as a party of change. Right now their image is "I'll roll over if you push hard enough."
posted by krinklyfig at 10:47 AM on November 8, 2007

Right now their image is "I'll roll over if you push hard enough."

How I wish it took some pushing. Instead, they cower when Bush says he'll veto...on a bill HE wants passed! I mean, seriously, you idiots: Just. Don't. Pass. Anything. You don't need a majority, you just need a tiny bit of leadership.
posted by DU at 10:53 AM on November 8, 2007

Step right up ladies and gentlemen :
See our ex Attorney General shill like the two-bit whore that he is.

Sensible answers from the letters page.
posted by lalochezia at 10:54 AM on November 8, 2007

What is important to any discussion on this issue is to recognize that NSA has always had the right to monitor electronic stuff going out of the country and coming into the country. Now, with this latest development, they are monitoring domestically too. This had not previously been allowed. The Bush "answer" is that only suspected bad people were being monitored but the whistle blower stated that the ATT opeartion swept up all communications into their data base. Another lie. Sad that the whistle guy said he was aware of this but did not want to lose his job so waited till retirement to speak up. But then, congress then and is the case now seemingly goes along with this massive new invasion upon American privacy.
posted by Postroad at 10:58 AM on November 8, 2007

...NSA has always had the right to monitor electronic stuff going out of the country and coming into the country.

But only the non-American side, right? I thought that was what the original story was: They were found to be listening to both sides of international calls. Then it turned out they were also listening to purely domestic calls.

The Bush "answer" is that only suspected bad people were being monitored but the whistle blower stated that the ATT opeartion swept up all communications into their data base.

Just to make the scare quotes explicit, even if this were true it would still be illegal, not to mention wrong. "Suspected" is subjective--you still need oversight from a judge.
posted by DU at 11:05 AM on November 8, 2007

you still need oversight from a judge

Were the parts of the Patriot Act that allowed eavesdropping without judicial oversight ever stricken?
posted by Blazecock Pileon at 11:12 AM on November 8, 2007

When did "freedom" stop being something we try to protect?
posted by uncleozzy at 11:16 AM on November 8, 2007

FRONTLINE's Spying on the Homefront has a lot about this.
posted by Mayor Curley at 11:17 AM on November 8, 2007 [1 favorite]

I hope the Democrats enjoy their majority in Congress, because they're not likely to keep it past the next Congressional election, no matter who ends up in the White House.
posted by tommasz at 11:23 AM on November 8, 2007

some of the extra-creepy facts in this case:
-this spying has been going on since JANUARY of 2001...right after bush took office, and well before sept. 11th
-yes, it's still going on.
-at&t OWNS these lines...the other carriers (i.e. sprint, etc) have to RENT them from at&t. even if these other carriers refused to comply, communications through them are still being monitored.

things you can do:
-cancel your at&t service. return your phone. (yes, even your iphone)(...or unlock it and use a different carrier...you have the RIGHT to do this...dont let anyone tell you differently) demand a FULL REFUND for all service dating back to jan. 2001. you probably won't get one, but you can sure waste a lot of their expensive time in the process. call back repeatedly. it's FUN!
-call your senator. make it absolutely clear that failure to vote a strong 'no' on this immunity will result in your not only never voting for them again, but ACTIVELY CAMPAIGNING against them.
-pay phone recievers can be easily removed with wire cutters.
-many graffiti cases have been overturned on first amendment grounds.
-in the words of edna mode: "FIGHT! WIN!!"
posted by sexyrobot at 11:59 AM on November 8, 2007 [1 favorite]

What is it called when parties of nationalists such as corporations work in perhaps uneasy but otherwise effective collaboration to eliminate democratic liberties without legal or ethical restraints?
Always slips my mind.
posted by Smedleyman at 12:11 PM on November 8, 2007 [4 favorites]

Klein on Olbermann.
posted by homunculus at 12:26 PM on November 8, 2007

I find the death penalty abhorrent, and the idea that rape is considered by so many as part of the punitive process turns my stomach. Despite that, I want nothing more than to see the servers and routers used to desecrate everything America stood for melted down into objects that can conceivably fit into orifices, studded with razor sharp shards of silicon from the processors, and bolted on to some sort of rape machine to be turned loose on every corporate suit who signed off on this treason to the people.

For bonus points, as they gasp for their last breaths, perfect digital reconstructions of their lives can be played before their eyes. Every trivial humiliation in their data trail from the herpes ointment they bought to the chat logs from some bestiality site they wanked on can be played back in order of shamefulness. Maybe just before the lights go out they'll understand what kind of world they helped create for their grandchildren.
posted by bunnytricks at 12:36 PM on November 8, 2007

So Bush wants immunity for AT&T for participating in his spying agenda? Fine, but then he should take responsibility for trampling all over the constitution and resign immediately. Somebody has got to pay for this, right? (Yeah, yeah, when pigs fly, and all that...)
posted by epimorph at 12:41 PM on November 8, 2007

Nixon was nearly impeached for abusing the office of the president. The FISA laws were put in place specifically in reaction to some of Nixon's abuses. Bush broke those laws, and lied about them. Bush should be impeached, really. If we aren't going to impeach a president for breaking laws that were explicitly enacted to prevent a previous president's impeachable conduct, when are we ever going to?

I know, I knew, next time a Democratic president gets a blowjob.

I was a little wigged out that we had a super-secret court that could authorize wiretapping after the fact, but that wasn't good enough for Bush.
posted by kirkaracha at 1:28 PM on November 8, 2007

kirkaracha Well, ex post facto laws are unconstitutional under Article I, Section 9. If it's unconstitutional to make something illegal when it used to be legal, than it seems to me like it should also be unconstitutional to make something legal when it used to be illegal.

Not exactly. People are (in principle) only prosecuted and punished for doing things that are illegal. There is an expectation, at least in democracies, that the legality or illegality of things ought to be based on (at least somewhat) sound reasoning. So, if the argument is made and accepted that doing something currently illegal ought to be legal now, then it raises the question as to whether, when it was illegal, the same argument applied. That is, if it's OK now, why wasn't it OK then? Why shouldn't people prosecuted for doing it then, be let go now?

Making something illegal retrospectively is considered bad because it opens a person to prosecution without fair warning. Conversely, the defendant does not suffer if something is retrospectively made legal; nobody needs fair warning to not be prosecuted. Actions of the state that make a person's life more difficult should be done only under justifiable circumstances, but making a person's life less difficult isn't considered to need the same constraints.

If the action to be legalized (or illegalized) can be seen as something that has victims, and that is certainly the case here, the question of whether it should be done becomes more complex. It's even more complicated if the actions in question could raise civil suits, rather than just being criminally prosecuted or not.
posted by aeschenkarnos at 1:31 PM on November 8, 2007

FBI: Al Qaeda May Strike U.S. Shopping Malls in LA, Chicago

This is exactly why we need unchecked domestic surveillance! Perfect timing!
posted by homunculus at 1:34 PM on November 8, 2007

FBI: Al Qaeda May Strike U.S. Shopping Malls in LA, Chicago

and monkeys might fly out of my butt.
posted by sexyrobot at 2:36 PM on November 8, 2007

-this spying has been going on since JANUARY of 2001...right after bush took office, and well before sept. 11th

This is the thing that is driving me absolutely bat-shit-fucking-insane.

How is immunity even being put on the table? They are criminals. They broke the law well before September 11th "changed everything"

Fuck them. Send the whole fucking nest of vipers to prison.
posted by quin at 5:02 PM on November 8, 2007 [1 favorite]

The alert, like similar Shepard Boy and Department of Lupine Security terror alerts cried over the past five years at holiday times, raised questions about the credibility of the information. (In other news, we’ll fellate anyone who has a story that brings in advertising.)


Look, I’m issuing a terror threat here and now, I am clearly stating that - and I’m perfectly serious about this - I am going to assassinate Santa Claus. He is a dead man this Christmas. You heard it here first.
posted by Smedleyman at 5:21 PM on November 8, 2007 [1 favorite]

to truly make it an 'act of terror' we have to gang rape the fat guy first...'bowl full of jelly?' yeah i'd tap that.


posted by sexyrobot at 6:20 PM on November 8, 2007

How you gonna do it Smedley? If you prefer the long range approach, I'll happily be your spotter.

I've got a grudge with that fat bastard that goes blood deep.
posted by quin at 7:00 PM on November 8, 2007 [1 favorite]

The problem isn't immunity so much as: Are they still doing this stuff?

What difference does it make? They already legalized it, the only question is whether or not they'll get into any trouble for what they've done in the past.

God damn the democrats are pussies.
posted by delmoi at 7:29 PM on November 8, 2007

“How you gonna do it Smedley?”

Y’know. I hadn’t thought of the logistics. He is quasi-mythological. I’d have to get to the north pole wouldn’t I? And how do you do arrange that? Not to mention confirming the kill. I’d have to have proof, I couldn’t just say it, no one would believe me. Hmmm... I’m going to have to go to ask me on this. We’ve got almost 2 months.
posted by Smedleyman at 8:36 PM on November 8, 2007

What difference does it make? They already legalized it

not yet they haven't...it's HIGHLY illegal, unwarranted, and unconstitutional...what they're trying to do is weasel out of facing the music for their hideous crimes...

what we all need to do is call our senators and make sure the vote doesn't go their way...the place to go is here for more info...
posted by sexyrobot at 9:34 PM on November 8, 2007

pay phone recievers can be easily removed with wire cutters

It's okay, stranded person without a cell phone who needs help, we're doing it to protect FREEDOM!
posted by Legomancer at 6:07 AM on November 9, 2007

Terrorist Watchlist Database Balloons
posted by homunculus at 11:32 AM on November 9, 2007

FISA Telco Amnesty: Feinstein Makes Dodd's Day
posted by homunculus at 11:42 AM on November 10, 2007

US intelligence honcho channels Orwell, redefines privacy
posted by homunculus at 11:56 PM on November 11, 2007

Spy Official Calling Anonymity Dead Simply Summarizing Gov Spying Powers
posted by homunculus at 2:17 PM on November 13, 2007

Yahoo Settles with Chinese Writers
posted by homunculus at 2:20 PM on November 13, 2007

Wiretapping Probe, Shut Down by Bush, Reopens
posted by homunculus at 12:04 AM on November 14, 2007

Analysis: Renewed Wiretapping Probe Hints at Backroom Deal on Telco Immunity
posted by homunculus at 12:07 AM on November 14, 2007

Thanks for keeping this up to date, homunculus.

Goddamn that's depressing. They're going to get away with this scot free.
posted by ook at 9:26 PM on November 14, 2007

Important day for FISA and amnesty
posted by homunculus at 10:39 AM on November 15, 2007

In Twist, Senate Judiciary Spying Bill Lacks Immunity for Telecoms
posted by homunculus at 3:21 PM on November 15, 2007

Did NSA Put a Secret Backdoor in New Encryption Standard?
posted by homunculus at 3:31 PM on November 15, 2007

Court rejects challenge to wiretap program: The Bush administration's warrantless spy effort is protected by the 'state secrets' privilege, federal judges rule.
posted by homunculus at 10:15 AM on November 17, 2007

Time magazine's Joe Klein has been making an ass of himself over the wiretapping debate lately. Now we may know why his information is so bad: his main source is Peter Hoekstra, the genius who put a nuke how-to guide online.
posted by homunculus at 11:37 AM on November 29, 2007

Top Spy Must Release Telecom Immunity Meeting Docs ASAP
posted by homunculus at 11:39 AM on November 29, 2007

Oops, here's the link: Klein’s Source Was Hoekstra And Other Unforced Errors
posted by homunculus at 11:43 AM on November 29, 2007

Top Spy Pushed Congress For Wider Powers, Citing High Summer Threat Level, Docs Show
posted by homunculus at 6:47 PM on November 30, 2007