The FBI, the NSA and your phone records in 2013.
June 6, 2013 1:47 AM Subscribe

Glenn Greenwald has produced a secret court order requiring Verizon to hand over to the NSA "telephony metadata" of all local and international calls either originating or terminating in the United States on an "ongoing, daily basis," and further barring Verizon from disclosing to the public the fulfillment of this request or the existence of the court order itself. The ACLU refers to the practice as "beyond Orwellian." Direct link to the court order available here.

Some background information on the government's expanded surveillance capabilities under the Patriot Act by the ACLU, including discussion on Section 215 of the Patriot Act, which allows the FBI to order, without showing probable cause, any person or entity to turn over "any tangible things" that are part of an authorized investigation to protect against international terrorism.

In 2011, Senators Wyden and Udall wrote a letter to Attorney General Holder complaining that the Obama Administration's interpretation of the Patriot Act was itself classified, therefore making informed (and arguably Congressional) debate on the topic impossible; making the point that "the government is effectively relying on secret law."

posted by phaedon (487 comments total) 68 users marked this as a favorite

I don't think there's anything we can do about stopping or even slowing down increasing surveillance by government and business, but we have a lot of work to do (constant vigilance) to make sure that all surveillance is as transparent as possible.

Everything is networked, or soon will be; this makes it a whole lot easier to snoop or generate universal surveillance.

Many here will disagree with what I'm about to say, but if you think about it, universal surveillance creates a scenario - in a way - that is not so different from what life was like centuries ago, before the industrial revolution. During those times, most people lived in small villages and rural towns, and everyone knew almost everything about everyone else. They knew what your religion was; who you loved; if you were honest; if you were a good worker; what you thought about this, or that...etc. And, most of that information was available to those in power, who would often abuse that power to manipulate or chill speech, and other freedoms.

For a while, as technology - especially transport and communication technologies - evolved, and large urban cities came into being, true, almost universal anonymity was made possible for the first time in human history. Along with the rise in technology (with its roots in the early Renaissance), modern citizens began more and more to think about themselves as independent, disconnected units - free to think and do as they please. So far, so good.

As technology evolved, we began to notice - especially in the last 40-50 years, that almost anyone can access technology, to the point where just a few determined individuals with access to the right technology (a dirty nuclear bomb, a bio-weapon, etc.) can cause worldwide widespread mayhem, to the point of massive worldwide harm.

I don't see modern universal surveillance as very different from what existed on the 'old days" - with everyone knowing everyone else business, and much of that knowledge available to those in power (who could buy it, extract it with torture, etc.) for use as they please. Thus, as this kind of threat increases in power-to-destroy, more and more surveillance is going to be foisted on all cultures. Universal surveillance is coming, like it or not.

So, what's different, today? Today, we have a more mature system of democratic values, and a conscious network of individuals across the globe who value freedom, habeus corpus, equality of opportunity, etc. Also, today, we have the capacity to monitor those who create universal surveillance systems. This is what we need to be focusing on, rather than fighting all these little battles that are all going to be mostly won by governments, anyway.

I have argued in other venues for a kind of "meta-surveillance" that would guarantee citizens in a democratic country (we can't help those in autocratic cultures, yet - but we can try) immediate access to the network at any time they wish - thus enabling access to when one was watched, by whom, for what reason, for how long, etc - with further information on where the data has gone. Big data can work both ways. This is the battleground. Sure, we can try to stop surveillance attempts by big government, and we will stop some of them - but as soon as someone(s) determined to cause large-scale harm to a lot of people succeeds, there will be further cries to suspend individual rights to privacy - and if the past is any guide, those cries will be heard and implemented.

What I'm arguing for is optimal two-way transparency between the watcher and the watched, with the primary problem to be solved as follows: How do you keep the bad guys from getting into the network to investigate how, why, when. etc. of their being the subject of surveillance. I don't know if that problem can be solved, but it's probably the 2nd most important one out there, long term.

We are going to be watched, and we are going to be tracked. This is just the beginning. What we need to do is start working on ways to "watch the watcher". Here we go!
posted by Vibrissae at 2:15 AM on June 6, 2013 [52 favorites]

What I find infuriating is how this whole debate is framed in regards to privacy.

Let me present a hypothetical world for you: Imagine that domestic wiretapping and other forms of privacy invasion, could save thousands, or maybe even only hundreds, of U.S. lives a year, as well as keeping morale high (in the absence of hundreds of deaths a year by terrorism). Would you be okay with such invasions of privacy knowing that you had such safety?

It seems to me pretty self-evident that privacy really AIN'T ALL DAT. Why can't we instead talk about: how useful is this particular type of privacy invasion (i.e.: general wiretapping, this specific new policy of collecting phone call metadata, etc.)?
posted by SollosQ at 2:23 AM on June 6, 2013 [2 favorites]

Big data can work both ways.

Without getting into a discussion about the issues surrounding Wikileaks, the response of the US to Bradley Manning tells me there is no way there's going to be anything like a symmetrical flow of information in that country.

Additionally, the UK has extensive CCTV coverage, and yet in several high-profile cases footage has been lost, misplaced, or is unviewable by the public.

Knowledge is power, and the powerful are reluctant to give that up. If you're going to change that situation, why not just change the amount of information harvested to begin with, thereby lessening the potential for abuse?
posted by dubold at 2:24 AM on June 6, 2013 [31 favorites]

We need a traffic analysis resistant social network, cloud storage system, and instant messaging system based on Tor. I've heard Pond provides a better basis than TorChat, but afaik all these open social networking protocols fail hard against traffic analysis. It's fairly doable but several times the work of doing it wrong.
posted by jeffburdges at 2:29 AM on June 6, 2013 [5 favorites]

as well as keeping morale high (in the absence of hundreds of deaths a year by terrorism)

I have here a terrorist-repelling rock that would probably work just as well for a fraction of the cost.
posted by Dr Dracator at 2:31 AM on June 6, 2013 [74 favorites]

One of the things I have noticed following the surveillance of AP reporters is that now that it is happening to them, the media seems to care a lot more about these practices. Perhaps at this time the expanded suveillance powers the goverment now has will stay on the medias radar a bit longer.
posted by TedW at 2:45 AM on June 6, 2013 [4 favorites]

It seems to me pretty self-evident that privacy really AIN'T ALL DAT.

.
posted by fairmettle at 2:51 AM on June 6, 2013 [5 favorites]

Thanks, Obama!

(Cries to him himself he voted for Obama first term.)
posted by Samizdata at 2:57 AM on June 6, 2013 [1 favorite]

It seems to me pretty self-evident that privacy really AIN'T ALL DAT.

Yours may not be. Mine is.

I'd prefer my country just stop provoking people to want to use terrorism against us, then to give up any more of my rights.
posted by overthrow at 2:58 AM on June 6, 2013 [30 favorites]

Greenwald's one of the few guys out there doing proper journalism. Respect.
posted by colie at 3:00 AM on June 6, 2013 [18 favorites]

colie: "Greenwald's one of the few guys out there doing proper journalism. Respect."

Never had anything but.
posted by Samizdata at 3:00 AM on June 6, 2013 [3 favorites]

Let me present a hypothetical world for you: Imagine that [this particular privacy invasion can save lives] ... Why can't we instead talk about: how useful is this particular type of privacy invasion (i.e.: general wiretapping, this specific new policy of collecting phone call metadata, etc.)?

This is a good question. Here are some answers:

If this type of privacy invasion has positive merits, none of them are publicly known, which means that no one can cite any empirical evidence of its usefulness.
We need to first establish whether (a) this program is legal or (b) if it's okay for the government to do illegal things.
As Senators Wyden and Udall pointed out in 2011, the government's very interpretation of the law has remained classified; this fact makes makes it impossible to know not only the results of our privacy violations, but what violations are even taking place.

The key words in the quoted text are "hypothetical" and "imagine".

I disagree with your assertion that the debate is framed solely in terms of privacy; it is also framed in terms of secrecy, and (more broadly, I think) informed consent. If these actions are actually legal, it is difficult to argue they were made so by a nation of informed citizens. The Wyden/Udall letter gets at this point:

"We believe that policymakers can have legitimate differences of opinion about what types of domestic surveillance should be permitted, but we also believe that the American people should be able to learn what their government thinks that the law means, so that voters have the ability to ratify or reject decisions that elected officials make on their behalf."

posted by compartment at 3:02 AM on June 6, 2013 [24 favorites]

"You have an inviolable right to privacy even at the expense of American lives... but you don't have an inviolable right to your income since this would be at the expense of your fellow Americans."

On preview: Thank you compartment, for addressing my thoughts. I appreciate it. (1) is indeed a very difficult problem concerning the whole classified nature of security analysis work. However, we see some details emerge out of cases such as with the DOJ involvement with the AP just a few weeks ago. For instance in this particular case, we found out that we had stopped what could have been a tragic bombing, but that further counter-terrorism operations had to be ceased due to the AP's leak.
posted by SollosQ at 3:02 AM on June 6, 2013 [1 favorite]

Would you be okay with such invasions of privacy knowing that you had such safety?

No.

There is absolutely no excusing this. If this report is accurate, it's the last straw for me in terms of supporting Obama.
posted by empath at 3:04 AM on June 6, 2013 [17 favorites]

Sorry, that wasn't meant to be a particular case about privacy infringement. Rather just that there is a general consensus that the security sector (CIA, NSA, Homeland Security, etc.) hasn't actually protected us from any threats at all because there aren't really any headlines about it. (Which is just the point. There aren't any headlines about it because they are for the most part successful in what they do.) But as you said, this raises a difficulty for us citizens who aren't politicians that have access to this classified material that confirms to what all further tragedies have in fact been prevented.
posted by SollosQ at 3:11 AM on June 6, 2013 [1 favorite]

Rather just that there is a general consensus that the security sector (CIA, NSA, Homeland Security, etc.) hasn't actually protected us from any threats at all because there aren't really any headlines about it.

The constitution doesn't actually have an exception for 'protecting us from tragedies'
posted by empath at 3:15 AM on June 6, 2013 [48 favorites]

Blame the political climate. If something does happen Republicans will paint liberals as soft on terrorism. Just like we did with the 9/11 plane memo to Bush.

Obama isn't stealing your freedom. Fox and CNN are.
posted by johnpowell at 3:16 AM on June 6, 2013 [4 favorites]

Blame the political climate. If something does happen Republicans will paint liberals as soft on terrorism. Just like we did with the 9/11 plane memo to Bush.

Obama isn't stealing your freedom. Fox and CNN are.

Yeah, Roger Ailes possessed Barack Obama's body as the President slept and forced him to do terrible things.
posted by Pope Guilty at 3:17 AM on June 6, 2013 [29 favorites]

How is this news? I mean it seriously. Were you all wishfully thinking this wasn't the case of everything, everywhere?
posted by CautionToTheWind at 3:20 AM on June 6, 2013 [13 favorites]

But as you said, this raises a difficulty for us citizens who aren't politicians that have access to this classified material that confirms to what all further tragedies have in fact been prevented.

Yes, but by the same token it also raises a difficulty for us citizens who don't have access to the classified material confirming the tragedies that were never prevented because they didn't exist.
posted by compartment at 3:21 AM on June 6, 2013

What I find infuriating is how this whole debate is framed in regards to privacy.

I won't tire everyone out by writing a long detailed explanation of exactly what besides privacy is at stake here, but it is pretty clear that the problems go far, far beyond privacy.

Rule of law and misuse of government secrecy are two major issues that come to mind without even bothering to scratch my thinking membrane very hard . . .
posted by flug at 3:29 AM on June 6, 2013 [8 favorites]

How is this news? I mean it seriously. Were you all wishfully thinking this wasn't the case of everything, everywhere?

I think it's news because the document is there, openly visible to all, which proves for the first time all those fears were real.
posted by hydatius at 3:33 AM on June 6, 2013 [10 favorites]

What's surprising to me is that everyone seems to have forgotten the Church committee. Really, we've been down this road before.

Let my say, if someone had taken just a fraction of these resources and instead used them to protect America from actual spying (hacking, which is spying) and is entirely within the NSA's charter to do, I would be (somewhat) happier.
posted by newdaddy at 3:34 AM on June 6, 2013

I work in government. Doing privacy law.

Tomorrow is going to be a long day.
posted by His thoughts were red thoughts at 3:35 AM on June 6, 2013 [24 favorites]

But as you said, this raises a difficulty for us citizens who aren't politicians that have access to this classified material that confirms to what all further tragedies have in fact been prevented.

Given the proclivity of the security forces to parade every half-arsed Four Lions-esque terrorist wannabe that they arrest for some fantasy attack plan, I think they'd be falling over themselves to publicise any genuine successes that they could credibly claim.
posted by Jakey at 3:38 AM on June 6, 2013 [21 favorites]

I think it's news because the document is there, openly visible to all, which proves for the first time all those fears were real.

Because literally secret laws were not fearful enough? This war was lost when Senator Obama voted to forgive and forget the spying that was already going on a decade ago.
posted by CautionToTheWind at 3:51 AM on June 6, 2013 [2 favorites]

If you want to talk privately, this little app will get you there. End to end encryption, no user accounts. Free for the moment. Full disclosure: I helped make it.
posted by unSane at 3:56 AM on June 6, 2013 [16 favorites]

Well I think this is a GOOD thing. Do you know that drivers distracted by talking or texting on cell phones killed an estimated 16,000 people from 2001 to 2007? And if those drivers had been talking on a landline, using a very long extension cord, the figures would be even higher. And telephones in the home are responsible for at least 3 or 4 domestic accidents every long-enough-for-this-statistic-to-be-valid time-period.

On that basis I applaud the Obama Administration for its ongoing efforts to find out just who is using telephones - and throwing the lot of them in jail.

Telephony is a foul cancer on our society, and if only the PATRIOT Act had allowed it to be banned back in 2001, the government wouldn't have to go to such lengths to find out just who is making phone calls. But you liberals were all, "Oooh my privacy! My iPhone! My Twitter feed!" - so really this is your own damn fault.

And all you morons who think that Twitter wasn't even around in 2001, let me tell you it WAS, but it was in BLACK and WHITE back then. Get your head around THAT, you young whippersnapper.
posted by the quidnunc kid at 3:59 AM on June 6, 2013 [33 favorites]

Let me just point out that the phone records in question are not recordings of conversations, or transcripts of the same. They are call records: who called who, at what time... *NOT* what was said.

Does this lessen the sting at all? Probably not, especially given the secretive way in which this was apparently done. But these are not wiretaps, they are more akin to someone looking over the shoulder of an old-time switchboard operator, seeing who is connected to who.
posted by superelastic at 4:02 AM on June 6, 2013 [4 favorites]

Years ago, my outrage meter pegged so hard the needle wrapped around the pin, so this revelation only got a resounding "Meh".

All this does is make a few more people realize what has been going on for years. Anyone who thinks "if only my guys were in power, none of this would be happening" should count himself among the rubes. Those in power have enemy lists, and surveillance is how they add names. Joe McCarthy would have needed Depends if he had had today's technology.

My real insight from this is it exemplifies how those in power want to know more and more about what we're doing, while hiding more and more of what they do under the mask of national security.
posted by Enron Hubbard at 4:04 AM on June 6, 2013 [14 favorites]

Wonder if Obama's read the morning papers and found out about this yet.
posted by jenkinsEar at 4:04 AM on June 6, 2013 [21 favorites]

Correct me if I'm wrong, but as far as I can tell this is only pen register data and not content, which has sadly never required a warrant for the government to collect, any more than they need a warrant to read a bumper sticker on your car or the address on a piece of mail.

What I do find disturbing is precisely who is doing this: NSA, which isn't supposed to surveil US persons. On the other hand, this is the agency that has been intercepting most or all international calls for 30 years or more now.

None of this is to say that I'm comfortable with the practice, but it seems to be closer to molehill than mountain, but maybe that's just because it's surrounded by a very fucking large mountain range.
posted by wierdo at 4:08 AM on June 6, 2013

Hilarious. People called me a tinfoil hat nut for suggesting even that a data listing of calls made when was being handed over regularly by the telcos no more than a few weeks ago.

I hate being right.
posted by strixus at 4:10 AM on June 6, 2013 [7 favorites]

Well, shit. I guess I'd better stop saying "THIS ADMINISTRATION DOES NOT NEGOTIATE WITH TERRORISTS" when discussing my two year old son's tantrums. Also probably should stop referring to the "dirty bomb" he dropped in his diaper.

Honestly, I'm probably on some list somewhere if they're just picking up keywords. Especially with my jihad against ant invasion.

This is the real problem, to me. It's so much information - how can they possibly sort out what's actually useful from what's noise? And also, I really would like to continue to joke about diaper atrocities without ending up on a no-fly list.
posted by sonika at 4:15 AM on June 6, 2013 [8 favorites]

Honestly, I'm probably on some list somewhere if they're just picking up keywords.

From the article:
Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.
posted by NoMich at 4:18 AM on June 6, 2013 [1 favorite]

Let me just point out that the phone records in question are not recordings of conversations, or transcripts of the same. They are call records: who called who, at what time... *NOT* what was said.

I did read one of the linked articles, but obviously not all of them. This is marginally less worrisome, but a really thin margin. Like a wafer thin mint.
posted by sonika at 4:22 AM on June 6, 2013

NSA, which isn't supposed to surveil US persons.

I'm not sure that this is actually true. I don't think the NSA is under the same restrictions as the CIA.
posted by empath at 4:23 AM on June 6, 2013

Let me just point out that the phone records in question are not recordings of conversations, or transcripts of the same. They are call records: who called who, at what time... *NOT* what was said.

Yeah, so they can basically build a list of anybody who talks to a group or person they don't like. And presumably can then get a warrant for a phone tap, not that the NSA needs a warrant.
posted by empath at 4:26 AM on June 6, 2013 [3 favorites]

What I find infuriating is how this whole debate is framed in regards to privacy.

Well, that's because it's a massive invasion of privacy.

Let me present a hypothetical world for you: Imagine that domestic wiretapping and other forms of privacy invasion, could save thousands, or maybe even only hundreds, of U.S. lives a year, as well as keeping morale high (in the absence of hundreds of deaths a year by terrorism). Would you be okay with such invasions of privacy knowing that you had such safety?

This is a pointless strawman. There is no evidence that preemptive domestic wiretapping could or would do this. But even so, statistically, you're more likely to get hit by a car than be killed by a terrorist. Forget that; you're more likely to be killed by your own furniture than be killed by terrorists.

It seems to me pretty self-evident that privacy really AIN'T ALL DAT.

The UN Covenant on Civil and Political Rights, which the US is a signatory to, establishes privacy as a human right; see Article 17. If you want to give that up, go ahead. Many other people would like to hold on to their human rights.

Perhaps you can go and set up a massive preemptive furniture burning program. That would save more lives than this crap.
posted by His thoughts were red thoughts at 4:28 AM on June 6, 2013 [32 favorites]

The NSA doesn't exist, right?
posted by Annika Cicada at 4:35 AM on June 6, 2013

Given the proclivity of the security forces to parade every half-arsed Four Lions-esque terrorist wannabe that they arrest for some fantasy attack plan, I think they'd be falling over themselves to publicise any genuine successes that they could credibly claim.

Whilst advertising that you have stopped a particularly stupid act of terrorism is good for morale it makes sense to keep secrets about other instances of prevented terrorism. This allows existing agents in place to continue to supply data rather than burning them making hard-won sources useless. Additionally it keeps secret the methods and techniques of espionage from open knowledge, preventing the enemy (whomever that may be at any given time) from preparing their activity in such a way as to make these useless.

There are many different lenses through which to view the security services of our Western nations. They are neither as bumbling as Legacy of Ashes makes out, nor are they as expert as Tom Clancy would have us believe. A sad mixture of the two, reflecting the fact that they are made up of people like you and I, with various degrees of skill, luck and professionalism.

It speaks volumes that the two most recent terrorist acts in the Western world (Boston Marathon bombing and the murder of Drummer Rigby) were perpetrated by individuals known to the security services*. They clearly have plenty of data, just insufficient capability to actually act on it. I think only a Stasi/KGB level of surveillance could prevent this happening in future.

*who fwiw have in turn partially blamed their actions on the contact by the security services themselves. I personally don't think that's really excusable...
posted by longbaugh at 4:44 AM on June 6, 2013 [3 favorites]

I work in government. Doing privacy law.

Tomorrow is going to be a long day.

Nothing personal as I'm sure you and your colleagues work hard and ethically but in light of this story I'm totally visualizing the government's PRIVACY LAW department as a bunch of folks with feet on desks, balancing pencils between their upper lip and nose. "Hey, boss, you want us to write some laws to protect people's privacy?" "Nah, not right now. I'll let you know, okay?"
posted by No-sword at 4:46 AM on June 6, 2013 [21 favorites]

Kind of orthogonally thinking here, what if the NHTSA was asking for this data to correlate against accidents and the like as a way to make our roads safer? Texting while driving idiots are the terrorists I fear..

I ask the question because I'm trying to understand if this an issue with the metadata itself or the unknown purposes the NSA could put this data to use for?

Personally I'd love to see the data set, a national movement and call pattern map? That sounds awesome! Some poor guy ending up on a secret plane flight to Romania because the NSA got the wrong guy?...not so awesome.

I'm thinking in the flow here, and I'm of the opinion that the metadata is powerful data, and in the hands of the NSA, it is a grave concern. In the hands of university research program building human pattern maps, not so much of a grave concern.
posted by Annika Cicada at 4:50 AM on June 6, 2013 [1 favorite]

Nothing personal as I'm sure you and your colleagues work hard and ethically but in light of this story I'm totally visualizing the government's PRIVACY LAW department as a bunch of folks with feet on desks, balancing pencils between their upper lip and nose.

Sorry mate; different government (Australia).

The US, as far as I know, doesn't have a specialist Federal privacy regulator; it's handled by the Federal Trade Comission. I suspect this is part of the problem. You don't even have the guys with their feet on the desks. That would be an improvement.

What I meant was, tomorrow morning, every privacy regulator in the world is going to get calls from reporters. They'll ask, 'Is our government doing this?'. We'll say,'No, of course not'. And they'll say, 'Well, how would you know? There could be secret laws!'.

None of us will have a response. I mean, secret court orders. Secret laws. What the goddamn hell.
posted by His thoughts were red thoughts at 4:56 AM on June 6, 2013 [51 favorites]

Somewhere, surrounded by 72 virgins, OBL is laughing his scrawny ass off. Mission Accomplished, indeed.
posted by Thorzdad at 4:58 AM on June 6, 2013 [17 favorites]

Somewhere, surrounded by 72 virgins, OBL is laughing his scrawny ass off. Mission Accomplished, indeed.

The idea that terrorists attack us because they wanted to make us have the Patriot Act is as dumb as saying they attack us because of our freedoms.
posted by Ironmouth at 5:03 AM on June 6, 2013 [12 favorites]

I would also like to direct everyone to the front page of the White House Open Government Initiative.

There's a quote from Obama on it:
“My Administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”
I suppose, technically, this is an unprecedented level of openness. Just at the wrong end of the scale.
posted by His thoughts were red thoughts at 5:06 AM on June 6, 2013 [11 favorites]

They clearly have plenty of data, just insufficient capability to actually act on it.

I'm not sure that's the right way to think about it. The dots are easily joined in retrospect in these big datasets, and it makes for a convincing narrative of the making of a terrorist plot, but there has been no plausible argument that it's ever going to be remotely feasible to sort the minuscule number of useful data points from the astronomical sea of inconsequential chaff.
There is clearly a value in the retrospective data mining, e.g. to ascertain if there are any associates who might still be out there, but this can be justified on a case-by-case basis. There is no reason to believe that anyone is being made safer by these big data dragnets, and arguably everyone is worse off, as the money and effort could have been spent doing something of actual value. And that's before we even get to the privacy arguments.
posted by Jakey at 5:06 AM on June 6, 2013 [3 favorites]

There's a quote from Obama on it:

“My Administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”
Somebody forgot to put the scare quotes around about half the nouns in that one.
posted by Kirth Gerson at 5:13 AM on June 6, 2013 [10 favorites]

It is a given that the government (your government, any government, now and forever into the future) will intrude upon your privacy if you let them. Also, there are corporate snoops to worry about; they also want to know everything about you. So:

What can the typical phone user do with encryption to make it difficult or impossible to be listened to? For example, are there easy ways to make Skype conversations hard or impossible to trace from one physical location to another? Can regular folk encrypt their telephone conversations without a lot of technical fiddling on both ends?
posted by pracowity at 5:14 AM on June 6, 2013

The idea that terrorists attack us because they wanted to make us have the Patriot Act is as dumb as saying they attack us because of our freedoms.

What were they attacking for, then? Suicide attackers were hardly going to stage a successful invasion, take the Whitehouse and establish a new government, were they? Hard to do when you've just committed suicide. They wanted to fuck shit up, to destroy morale, to instill fear and distrust, to go down in history, to change things permanently. How have they failed, with "laws" like this now defining how your government operates?
posted by Jimbob at 5:15 AM on June 6, 2013 [37 favorites]

At least they had to go to a judge to get this approved. That is progress vs. the Bush years when the NSA was doing this without any judicial oversight. And yet the fact that the judge approved such an over-reaching invasion of my privacy is shocking. The notion that the NSA thought it was reasonable to do this, is also outrageous. I wonder if the judge understood that this order allows the NSA to know everywhere you went with your phone and everyone you talked to. The order seems to be written so that customer names are not included only the phone numbers and metadata. However the numbers are available elsewhere, so it is trivial to match that up.

I wonder if Verizon customers have any ability to challenge this in court or even sue for damages.
posted by humanfont at 5:15 AM on June 6, 2013 [1 favorite]

Imagine that domestic wiretapping and other forms of privacy invasion, could save thousands, or maybe even only hundreds, of U.S. lives a year, as well as keeping morale high (in the absence of hundreds of deaths a year by terrorism). Would you be okay with such invasions of privacy knowing that you had such safety?

This is how the terrorists win.
posted by whimsicalnymph at 5:17 AM on June 6, 2013 [9 favorites]

I doubt this is just Verizon. Verizon just happens to be the only one successfully tapped by the journalists to give up the paperwork.
posted by hydatius at 5:18 AM on June 6, 2013 [18 favorites]

What can the typical phone user do with encryption to make it difficult or impossible to be listened to?

On a typical phone making landline/cell calls? Nothing.

For example, are there easy ways to make Skype conversations hard or impossible to trace from one physical location to another?

Stay the hell away from Skype. I love it to bits for talking to my dad about the weather, but it is cracked wide open.

Can regular folk encrypt their telephone conversations without a lot of technical fiddling on both ends?

I'm not a regular folk, I'm pretty savvy, and I've been struggling for a long time with the stuff the privacy/encryption dudes are churning out. It is all hard. I guess it's supposed to be. Even the app UnSane posted above - how do we know iOS (closed source) doesn't have backdoors to enable Big Brother to take screenshots of your conversation?
posted by Jimbob at 5:21 AM on June 6, 2013 [2 favorites]

I am OUTRAGED...

...that this secret government document was LEAKED! Do you know why we have to have policies like this? To track down evildoers who leak secret government documents! Fortunately, we won't have to work to hard to find out who the awful, horrible traitor was who gave this to a reporter, we just need to examine the phone logs that were collected...
posted by indubitable at 5:24 AM on June 6, 2013 [6 favorites]

"My administration will demand the phone records of millions of people not suspected of wrongdoing. Privacy advocates will say 'You can't do that,' and our answer will be 'Yes. We. Can. '".

I genuinely thought this stuff was going to stop after Obama was elected, because I genuinely thought he would bring a different moral tone to the presidency.

It's disappointing.
posted by DWRoelands at 5:28 AM on June 6, 2013 [8 favorites]

I genuinely thought this stuff was going to stop after Obama was elected, because I genuinely thought he would bring a different moral tone to the presidency.

It's not about morality, but practicality. There's all this information that can be easily captured and studied. The temptation to go after that data and use is too tempting for pretty much anyone.
posted by Brandon Blatcher at 5:33 AM on June 6, 2013 [3 favorites]

None of us will have a response. I mean, secret court orders. Secret laws. What the goddamn hell.

There is no secret law here. The business records part of the PATRIOT ACT wasn't a secret. It was passed in front of everyone.

Second, in the criminal courts, much is secret all of the time. All Grand Jury testimony and deliberation, many orders pertaining to ongoing investigations regarding targets who are not aware they are under investigation.

Finally, the FISA court must be secret. You can't have the court resposible for deciding if the government's monitoring of terrorists and spies openly deciding whether or not Boris Badanov's phone ought to be tapped conduct their sessions in open court, because Badanov is going to go back to the Embassy and tell his buddies to stop using the phones in the lobby.

And FISA is a massive improvement. Before FISA, Presidents just tapped phones for counter-espionage purposes without any court order at all.

What Bush did was try to take the judges out of the loop entirely and have an illegal order to allow full on wiretapping of telephone calls between a person in the US and a person overseas without an warrant from the FISA court.

What we have here is a legal order for business records related to cell phone records that was approved by the judges in the FISA panel. It was applied for on April 25th and was a three month order expiring on July 19th. That means it was retroactive from April 19th. April 18th at 10:48 PM was the date the police encountered the Tsarnev brothers and figured out they were responsible for the Boston Marathon bombings. Verizon's biggest area is the East Coast, where it started out as the telephone provider for the Northeast spun off by the Bell System antitrust order.

It follows that this was part of the effort to make sure that the Tsarnevs weren't part of a larger plot in the way the 9/11 hijackers were. While we now know these guys were pot-smoking knockoff jihadis, we didn't know that then. The information relating to investigating the criminal acts in the plot will be obtained through regular criminal search warrants--the government cannot use FISA warrants like this to investigate an already completed crime.

Having said that, the order is too large for practical purposes. It would be essentially impossible for the government to actually read all of these records. Instead it is a sort of set aside and ship to us order. In effect, it is a lazy order--and probably a panicked one. This is the first international terrorist attack we've had in the US since 9/11.
posted by Ironmouth at 5:37 AM on June 6, 2013 [28 favorites]

Does anyone seriously believe Romney wouldn't have also done this had he won?
posted by tommasz at 5:38 AM on June 6, 2013 [4 favorites]

I don't see modern universal surveillance as very different from what existed on the 'old days" - with everyone knowing everyone else business, and much of that knowledge available to those in power (who could buy it, extract it with torture, etc.) for use as they please.

So, you're saying that the NSA has gone medieval on our asses?
posted by orme at 5:42 AM on June 6, 2013 [8 favorites]

BTW, I will bet $100 that the source of the leak is a GOP staffer on the House Intelligence Committee. They're hoping to get you all to ignore all that they're doing and vote for them.
posted by Ironmouth at 5:42 AM on June 6, 2013 [4 favorites]

That's HOPE and CHANGE you can believe in.
posted by blue_beetle at 5:43 AM on June 6, 2013 [1 favorite]

The judge who signed that order needs to lose his office.
posted by double block and bleed at 5:44 AM on June 6, 2013 [3 favorites]

I don't have much to add here, but a couple scraps:

1. the other day I read the Stanford Encyclopedia Philosophy article on human rights. There are two mentions of the word privacy. Both of them describe it as a hypothetical. There does not appear to me to be any decent data on the concept as concrete.

2. the way it will become something we can at all rely upon in practice will be in fits and starts with people way above my pay grade getting burned, like in the recent case where the freaking FBI was snooping on the CIA director's freaking sex life.

3. I am a customer of Verizon, disgusted, not surprised, not freaked out because I do not use them for any communications that I care to keep private.
posted by bukvich at 5:47 AM on June 6, 2013

What we have here is a legal order for business records related to cell phone records that was approved by the judges in the FISA panel.

Those judges sure seem to rubber-stamp pretty much everything that comes at them.
posted by smackfu at 5:48 AM on June 6, 2013 [4 favorites]

It is all hard. I guess it's supposed to be.

Shouldn't it be easy? So everyone can encrypt their conversations automatically and the government has to expend a zillion times more effort to try to listen to you?
posted by pracowity at 5:48 AM on June 6, 2013 [1 favorite]

At work we switched from Office 2007 to 2010. This brought on Lync, which as many of you know effectively logs you in and monitors your activity and shows your coworkers whether you are actively working or idle or in a meeting or basically whatever you are doing. Sure its great as a built in AIM / Goto meeting, but there are aspects of it that suck.

one co-worker quickly logs out anytime Lync starts up. This means he gets none of the benefits and will eventually get forced to capitulate by the system.

On the other hand, I wrote a quick keypress program, remote desktopped into an unused computer, logged in and fired off the keypress program. Instead of being idle - I am now 100% of the time on, and not away from my computer (asides from scheduled meetings).

Being hidden is no longer an option. Instead, be the loudest voice that is indistinguishable from the state that they want you in.

Right now I'm not sure how to do that on a mobile phone, but I'm pretty certain I'll know how to do it soon enough.
posted by Nanukthedog at 5:51 AM on June 6, 2013 [5 favorites]

His thoughts were red thoughts: "I would also like to direct everyone to the front page of the White House Open Government Initiative.

There's a quote from Obama on it:
“My Administration is committed to creating an unprecedented level of openness in government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

I suppose, technically, this is an unprecedented level of openness. Just at the wrong end of the scale."

And that was the main (apparently fictional) plank that attracted me to Obama in the first place.

Silly me forgetting he was part of the Chicago gang.
posted by Samizdata at 5:53 AM on June 6, 2013 [5 favorites]

...The dots are easily joined in retrospect in these big datasets, and it makes for a convincing narrative of the making of a terrorist plot, but there has been no plausible argument that it's ever going to be remotely feasible to sort the minuscule number of useful data points from the astronomical sea of inconsequential chaff.

Absolutely - I agree with this point entirely and apologise that I was not clear enough in indicating this within my original comment. Identifying a future act is extraordinarily hard to do given the way the intelligence world works (see every bit of data collected and every single warning from the CIA, NSA, State and FBI up to 9/11 for the perfect example of this).

There is clearly a value in the retrospective data mining, e.g. to ascertain if there are any associates who might still be out there, but this can be justified on a case-by-case basis.

Agreed again - being able to track back through the individuals history is a great way to pick up on others possibly having something to do with the event. Nowhere is this more obvious than the questioning of related individuals on both sides of the Atlantic (although we try very hard not to shoot those we are questioning).

There is no reason to believe that anyone is being made safer by these big data dragnets, and arguably everyone is worse off, as the money and effort could have been spent doing something of actual value. And that's before we even get to the privacy arguments.

True again. You can collect all the data in the world (and it looks like they'd love to) but it only ever gives you the ability to retroactively see the conspiracy and maybe catch a few second stringers. Useful as a learning experience no doubt but otherwise a massive use of resources for no high percentage of reduction in threat.

Dame Stella Rimington (ex-head of the Security Service aka MI5) recently appeared on Radio 4 talking about the financial costs of watching each of the suspected threats. Teams of 6-10 people with vehicles offering round the clock surveillance on each of maybe 5,000 suspects runs to the hundreds of millions of pounds rather quickly, never mind if the individuals concerned travel overseas or you require translation services for any communications.

Collecting electronic intelligence (ELINT) data has always been cheaper than generating human intelligence (HUMINT) and I see no reason for this to decrease as the government's capability to capture, store and retrieve this information increases. It sucks hard but good luck organising against them.
posted by longbaugh at 5:54 AM on June 6, 2013

Nanukthedog: "At work we switched from Office 2007 to 2010. This brought on Lync, which as many of you know effectively logs you in and monitors your activity and shows your coworkers whether you are actively working or idle or in a meeting or basically whatever you are doing. Sure its great as a built in AIM / Goto meeting, but there are aspects of it that suck.

one co-worker quickly logs out anytime Lync starts up. This means he gets none of the benefits and will eventually get forced to capitulate by the system.

On the other hand, I wrote a quick keypress program, remote desktopped into an unused computer, logged in and fired off the keypress program. Instead of being idle - I am now 100% of the time on, and not away from my computer (asides from scheduled meetings).

Being hidden is no longer an option. Instead, be the loudest voice that is indistinguishable from the state that they want you in.

Right now I'm not sure how to do that on a mobile phone, but I'm pretty certain I'll know how to do it soon enough."

This is why I use TrackMeNot. Sure Google and Bing and such can track my search history. But it is a little harder when my browser keeps sending out random searches constantly when I am online.
posted by Samizdata at 5:57 AM on June 6, 2013 [5 favorites]

On the one hand, I find this intrusive if not downright replusive. On the other hand, if someone wants to listen to my conversations with my sister in California? Their life must be even more boring than mine.
posted by easily confused at 5:59 AM on June 6, 2013

My first thought on this was a snarky "They told me if I kept voting Republican I'd be voting to put Bush back in office. They were right."

But on reflection I think Ironmouth nailed it. Once the US government found out the Boston bombings were perpetrated by ideologically motivated jihadists, and especially once we knew about the real possibility that this attack could have been directed by overseas militants (as suggested by the older brother's trip to Dagestan), the government needed to determine ASAP if there were others involved in the plot. A critical tool in determining the extent of the conspiracy would have been to apply social network data analysis on the Tsarnaev brothers and their immediate contacts, as well as a broader search on communications between Boston and Chechnya/Dagestan.

I'm glad our national security agencies went through the appropriate legal channels during the red alert that must have followed the Boston bombings. And the three month limit on the court order also seems reasonable.

My only real concern is this: how are these records treated/disposed going forward? If the NSA gets to hang on to the records indefinitely and use them for whatever purpose it wishes, that's a real problem that might need to be fixed legislatively. But if the NSA destroys those records (but tells Verizon to hang on to them for some specified period in case we need them again for some reason), then I'm OK with that.
posted by BobbyVan at 6:02 AM on June 6, 2013

I mean, secret court orders. Secret laws. What the goddamn hell.

OMG the new Superman movie is coming soon I can't wait! And hey! Big sale at BestBuy!!!!
posted by quonsar II: smock fishpants and the temple of foon at 6:04 AM on June 6, 2013

I really feel it's time for the people of the US to remind our government institutions that this land is our land, that they work for us, that we are innocent until proven guilty, and that we have the right to change these organizations if they fail to protect our rights.

Sadly, given the state of things I don't see how this might happen, or what person might lead the charge.

One last thing: fighting state surveillance with citizen surveillance ain't gonna work.
posted by nowhere man at 6:06 AM on June 6, 2013 [1 favorite]

NSA, which isn't supposed to surveil US persons.
This is mostly true, but when I read it in comments on the Internet, I can't help but wonder if the source is Sneakers.

Buddy Wallace: And then, there's Martin Bishop...[looks at a folder while Martin stares blankly. Wallace turns the folder to show it has no papers] He doesn't seem to have a past.
Bishop: [Walks away] I'm sorry, but I don't work for the government.
Dick Gordon: We do. [Shows a card] National Security Agency.
Bishop: Ah. You're the guys I hear breathing on the other end of my phone.
Dick Gordon: No, that's the FBI. We're not chartered for domestic surveillance.
Bishop: Oh, I see. You just overthrow governments. Set up friendly dictators.
Dick Gordon: No, that's the CIA. We protect our government's communications, we try to break the other fella's codes. We're the good guys, Marty.
Bishop: Gee, I can't tell you what a relief that is...Dick.

The reality isn't as simple as that "not chartered bit..." -- there are executive orders from the Reagan era that assert the NSA leaves domestic counterterrorism to the FBI to avoid running afoul of criminal procedure protections, referencing the National Security Act of the late '40s; and the FISA law itself was established just shortly before that period. Those executive orders have been outmoded by newer ones and the interpretation and application of FISA has evolved -- first some post Cold War/rise of the Internet adjustment and then more intensive post-9-11 evolution.

The most recent FISA amendments that preserved its enlargement by the PATRIOT act became law in July 2008 -- the waning days of the Bush administration.

The FISA court is certainly Orwellian, but its existence and abuse can't be laid only at Obama's feet; and the DOJ/FBI's enlarged use of FISC surveillance orders wasn't a Holder innovation. Ironmouth is correct that it's better than the vacuum that predated it (although perhaps not by much). Recall that the FISA law came out of the Church committee investigation into Nixon's abuses of wiretapping, etc.

And, ultimately, this kind of 'traffic analysis only' order bothers me less than the full on wiretapping of data transmitted and received which is also (reportedly) routinely obtained through the FISA court ("deep packet inspection").
posted by snuffleupagus at 6:08 AM on June 6, 2013 [2 favorites]

I find this to be egregious and a bunch of shit and particularly craptastic from a fucking liberal Constitutional scholar president. This is the kind of asshole move I expect from a fascist or totalitarian government.

But if the NSA destroys those records (but tells Verizon to hang on to them for some specified period in case we need them again for some reason), then I'm OK with that.

So you don't want the government to hold the data, but an agent of the government is ok?

And why just Verizon? I am sure the other companies got these same orders.

Bunch of shit. If it is just Verizon I am moving carriers. I am not one of those loyal customers. I go where the best service and deals are and where the company practices aren't a bunch of shit.
posted by cjorgensen at 6:08 AM on June 6, 2013 [6 favorites]

So few people know what the NSA does. Te media, generally, pretends they're some kind of bizarre organization, which they are, but in ways infinitely more pedantic and terrifying than what you might see in movies. If you want to understand the NSA, read James Bamford's body of work. Start with The Puzzle Palace to get a history and move forward.

And as someone earlier mentioned, technically (at least according to public legal rulings), the NSA is only supposed to surveil communications that involve foreign individuals. This can include calls inside the US, but only if they can be sure that one end is a foreign national. Obviously, this program is absurdly illegal under that restriction, but that's never stopped the NSA before.

Oh, and BTW, the NSA is the largest power customer in Maryland, consuming as much power as the entire city of Annapolis. And they're building one of the largest data centers in the world in Utah. Over one million square feet.

But I'm sure everything's just fine.
posted by petrilli at 6:09 AM on June 6, 2013 [10 favorites]

quonsar II: smock fishpants and the temple of foon: "OMG the new Superman movie is coming soon I can't wait! And hey! Big sale at BestBuy!!!!"

Save big with this weird old accounting trick. Accountants hate this trick!
posted by jquinby at 6:09 AM on June 6, 2013 [2 favorites]

This is the first international terrorist attack we've had in the US since 9/11.

International? Djokhar Tsarnaev is a US citizen; his brother was a US permanent resident.
posted by His thoughts were red thoughts at 6:10 AM on June 6, 2013 [17 favorites]

I have a real problem with the scope of this order. All phone communications? I don't see how you can justify that. The FISA court has its purpose, and I agree that some warrants need to stay secret (at least for a period of time). However, what is the oversight mechanism for the FISA court? Why is a warrant granted with zero specificity? It can't be appropriate to say "Give us all your operating data because we need it to catch terrorists." and leave it at that.
posted by demiurge at 6:12 AM on June 6, 2013 [2 favorites]

There is no reason to believe that anyone is being made safer by these big data dragnets, and arguably everyone is worse off, as the money and effort could have been spent doing something of actual value. And that's before we even get to the privacy arguments.

I think it is really problematic to focus on whether or not many people are "made safer" by this--because that opens up the question of whether or not people are harmed by it.

Let's be honest. No one complaining will suffer a personal harm because of this. They will not lose money, their wife will not find out their affair, and they will still get that job.

The reason people want privacy rights protected is because they don't want the rights to extend to individual cases involving them. And that's the right argument against this sort of law.

When you focus on whether these orders in general have actually stopped many plots you open up the question of whether or not having these records has actually harmed anyone in particular.

Instead, the strong analysis says law enforcement needs tools and where should the line be drawn which enables them but does not violate the privacy of others.
posted by Ironmouth at 6:14 AM on June 6, 2013 [3 favorites]

pracowity What can the typical phone user do with encryption to make it difficult or impossible to be listened to? For example, are there easy ways to make Skype conversations hard or impossible to trace from one physical location to another? Can regular folk encrypt their telephone conversations without a lot of technical fiddling on both ends?
Late to the party (and I couldn't find an 'unadulterated' version of the clip) but I'm just going to leave this here
http://www.youtube.com/watch?v=m5S_u5cViAw&feature=player_detailpage#t=34s
posted by VoltairePerkins at 6:14 AM on June 6, 2013

The idea that terrorists attack us because they wanted to make us have the Patriot Act is as dumb as saying they attack us because of our freedoms.

This would be true if Sayyid Qutb's views on the primary failures of Western civilization and the strategies which arose from his work were completely irrelevant.

I don't think that it's as simplistic as your strawman, but there is a connection of which I'm certain that you're aware, notwithstanding your habitual Father Knows Best pose.
posted by winna at 6:15 AM on June 6, 2013 [7 favorites]

There is no secret law here. The business records part of the PATRIOT ACT wasn't a secret. It was passed in front of everyone.

Right and as the NYT mentioned the gaping, widening hole between what the law seems to say and what Team Obama is claiming the law means is itself a secret:

For several years, two Democrats on the Senate Intelligence Committee, Senator Ron Wyden of Oregon and Senator Mark Udall of Colorado, have been cryptically warning that the government was interpreting its surveillance powers under that section of the Patriot Act in a way that would be alarming to the public if it knew about it.

“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act,” they wrote last year in a letter to Attorney General Eric H. Holder Jr.

They added: “As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.”

BTW, I will bet $100 that the source of the leak is a GOP staffer on the House Intelligence Committee. They're hoping to get you all to ignore all that they're doing and vote for them.

This is the second time I'm going to say, your constant, monotonous big-D inside-the-beltway perspective makes me seriously question how financially/personally tied you are to this administration. I can predict your username from reading your comments because of the blatant spin and precise messaging.

You first say this isn't a secret, and secondly that it was leaked by the GOP. Well, which is it? I don't understand how the government can pass a law giving it permission to trawl the communications of all Americans and then somehow the actual orders demanding those records from all Americans are big classified secrets that evil-doers will leak to hurt our great leader.

Never mind though! I do assume as usual you can prove this isn't some sort of betrayal, by quoting Obama from the campaign trail back in 2008, saying he loves the Patriot Act and will use it to secretly spy on all Americans if we have enough hope and change in our hearts to elect him.
posted by crayz at 6:16 AM on June 6, 2013 [32 favorites]

This is the first international terrorist attack we've had in the US since 9/11.

International? Djokhar Tsarnaev is a US citizen; his brother was a US permanent resident.

The brother was not a citizen of the US, appears to be the main leader of the plot, was in contact with Chechen terrorists and traveled overseas to Chechnya to try and meet with those persons. This is the definition of an international terrorist attack.
posted by Ironmouth at 6:16 AM on June 6, 2013 [1 favorite]

There is no secret law here.

Moreover, there is no such thing as a secret law. There may be laws that allow people to do things in secret, but if it's secret, it's not part of the law.
posted by one more dead town's last parade at 6:17 AM on June 6, 2013 [1 favorite]

Killing off the USPS now looks even more suspicious, no?
posted by Benny Andajetz at 6:18 AM on June 6, 2013 [4 favorites]

NSA vacuum cleaner. They argue that they can collect every unencrypted transmission on the Internet, and now every phone-call source and destination in America and store it, just as long as they don't look at it. Then when they need to, they can get a judge's permission to look at your entire history of communications.

Think of classic outrageous surveillance societies like the Stasi in East Germany, and that doesn't hold a candle to what the NSA is doing today. The 4th amendment will continue to be whittled for electronic communications unless you demand it isn't.
posted by pashdown at 6:18 AM on June 6, 2013 [1 favorite]

The "good" news here is that it should be a lot harder for the courts to use a lack of standing to dismiss an ACLU suit against this program (as SCOTUS did earlier this year) now that there is evidence that every Verizon customer has had their call logs monitored. At least in theory, a case should at least be able to clear the hurdle of standing, and at least get to the point where the plaintiffs can make a legal case against this program in a court of law.
posted by tonycpsu at 6:19 AM on June 6, 2013 [9 favorites]

If the Republicans were smart they would jump on privacy as THE issue to get voters back. It resonates with Independent voters. They could craft a number of laws that would probably pass because their is enough Democratic support. And we would all win...
(Until the Republicans used this to get back in power and craft more of stupid Homeland Security type legislation which they shoved through in the first place...grr.)
posted by dances_with_sneetches at 6:22 AM on June 6, 2013

An expert in this aspect of the law said Wednesday night that the order appears to be a routine renewal of a similar order first issued by the same court in 2006. The expert, who spoke on the condition of anonymity to discuss sensitive issues, said that the order is reissued routinely every 90 days and that it is not related to any particular investigation by the FBI or any other agency.

Ironmouth, is there any source for the Boston Bombing connection other than Josh Marshall's late night speculations? It seems like that's a total red herring here.
posted by gerryblog at 6:23 AM on June 6, 2013 [14 favorites]

Think of classic outrageous surveillance societies like the Stasi in East Germany, and that doesn't hold a candle to what the NSA is doing today.

When one in three people you know is an informant and the NSA (or other government TLA) has a stoppered jar containing a cloth doused in your sweat on it so that you can be scent-tracked by very big; very nasty dogs then you can say this. It's certainly more than we would like, but in no way is the domestic surveillance close to that of the Stasi. They wrote (and then shredded) the book on this.
posted by longbaugh at 6:23 AM on June 6, 2013

It seems to me pretty self-evident that privacy really AIN'T ALL DAT.

So you've thrown out all the blinds in your house, then? And your bathroom doors have gone to the curb too?

Yeah, I didn't think so.

Privacy is a core part of basic human dignity, and throwing it away for the sake of a bit of safety is a repugnant, dehumanizing idea.
posted by mhoye at 6:24 AM on June 6, 2013 [12 favorites]

If this is true, I think I'd retract my comment above.
posted by BobbyVan at 6:30 AM on June 6, 2013 [1 favorite]

I've mentioned this before but one of the solutions to this -

And as someone earlier mentioned, technically (at least according to public legal rulings), the NSA is only supposed to surveil communications that involve foreign individuals. This can include calls inside the US, but only if they can be sure that one end is a foreign national. Obviously, this program is absurdly illegal under that restriction, but that's never stopped the NSA before.

- was to get GCHQ in Cheltenham to put a little sticker on the data that says "product of the UK" on it and then you are staying within the wording of the law quite comfortably.
posted by longbaugh at 6:31 AM on June 6, 2013

Think of classic outrageous surveillance societies like the Stasi in East Germany, and that doesn't hold a candle to what the NSA is doing today.

Isn't that just a "We've already determined what you are, now we're just haggling over price" kinda argument?

When it comes to privacy as a right, as soon as the conversation becomes one of degrees the battle is essentially lost, I think.
posted by Benny Andajetz at 6:32 AM on June 6, 2013 [4 favorites]

Several points:

The order includes not only the NSA but also the FBI. I would assume this is to exclude the NSA from technically operating domestically. Some sort of Chinese wall affair I would imagine.

It has long been established that there is no search if the police monitor the numbers you call from your land line as long as content is excluded. The order specifically excludes content and therefore seems to satisfy the reasonable expectation of privacy requirements as currently defined.

The purpose of the order appears to be to compel Verizon to turn over data it is already collecting for its own internal purposes rather than authorizing some sort of new information gathering at the behest of the government.

The specific exclusion of foreign to foreign calls is interesting. You know they're getting it but apparently through different channels...
posted by jim in austin at 6:32 AM on June 6, 2013

Having said that, the order is too large for practical purposes. It would be essentially impossible for the government to actually read all of these records.

This is incorrect. The tech for the storage and processing of incredibly large datasets is really, really advanced, and the government is the single largest customer of this technology.

We're approaching a point where actionable information on every US citizen can be gathered and analyzed and distilled into a warrant or lawsuit without any human intervention - no one is in complete compliance with all laws at all times. (Your cellphone knows when you're speeding, of if you've been to the house of a prominent political party leader. Let's set up an automated process to correlate the two to see if we can revoke anyone's license for disloyalty...)

That point will likely be in the next year or two - whether it will be used as blackmail for political or business purposes remains to be seen.
posted by Slap*Happy at 6:33 AM on June 6, 2013 [5 favorites]

The specific exclusion of foreign to foreign calls is interesting. You know they're getting it but apparently through different channels...

There's no constitutional or legal barrier to the US monitoring foreign-to-foreign calls.
posted by BobbyVan at 6:33 AM on June 6, 2013

Would you be okay with such invasions of privacy knowing that you had such safety?

WTF?! Are you actually serious?

You know what's safe? A veal. So why don't you let Obama strip you and lock you in a cage and feed you and clean up your poops and then you'll be safe as can be from all those nasty terrorists. Cause they are SOOOO much scarier than than our government is right now.

Good Lord, the fear and complicity of our own civilians in this mess just because they are spineless scaredy-cats is disgusting. I wasn't nearly as scared of the Boston Bomber as I was of the official response to it.

But you just sit in your little cage hoping they feed you on time. Right up until the slaughter....
posted by umberto at 6:34 AM on June 6, 2013 [9 favorites]

At least in theory, a case should at least be able to clear the hurdle of standing, and at least get to the point where the plaintiffs can make a legal case against this program in a court of law.

Unless it's not redressable for other reasons, and so non-justiciable. Although I'd be surprised if the Court went with any of the overtly totalitarian or else incredibly lame rationales for that (such as national security and mootness, respectively; and I suppose this could be a case that avoids review yet is capable of repeating.)

I'm also not sure about the injury in fact, for that matter. There may be not be an expectation of privacy in the data collected by traffic analysis; it's all entrusted to (or generated by) commercial entities for the purpose of obtaining cellular voice and data services, partly the rationale for the weaker standards originally made acceptable for telephonic pen registers (dialed number recorders), which were the predecessors of this kind of logging, now extended to network traffic analysis (see 18 USC 3127). And to the extent criminal activity is uncovered, there's no expectation of privacy in that if there isn't in the underlying communication.

Apologies for bar study mode and opaque phrasing.
posted by snuffleupagus at 6:35 AM on June 6, 2013 [1 favorite]

The court order states that the FBI wants data from Verizon Business Network Services/MCI Communication Services. A quick YouTube search for info on what Verizon Business does tells me they primarily provide services to "businesses and governments."

So basically, it sounds to me like the FBI is looking at data from businesses and governments. I'm not a corporation, a government, nor someone using their services; I'm not entirely concerned about this one.
posted by retypepassword at 6:35 AM on June 6, 2013

PDF version of the 2013-04-25 FISA order
posted by pjenks at 6:36 AM on June 6, 2013

It has been said that this is no big deal because it is just a huge pen register of who where and when but not the conversation itself. Well there have been indications that they suck all those up too. With this info they now know better to whom they are listening.
posted by caddis at 6:36 AM on June 6, 2013 [1 favorite]

Having said that, the order is too large for practical purposes. It would be essentially impossible for the government to actually read all of these records.

The current NSA approach would seem to aim first at logging and storing as much as possible. It can then double back and subject communications flagged by traffic analysis or other more superficial means to deeper analysis. This is consistent with the (disclosed) information about the new data center.
posted by snuffleupagus at 6:36 AM on June 6, 2013

There's no constitutional or legal barrier to the US monitoring foreign-to-foreign calls.

US laws are not the only laws.
posted by His thoughts were red thoughts at 6:39 AM on June 6, 2013 [5 favorites]

Thank You, Unknown Patriot Who Exposed the Government's Verizon Spy Program

"The order was marked TOP SECRET//SI//NOFORN, referring to communications-related intelligence information that may not be released to noncitizens. That would make it among the most closely held secrets in the federal government, and its disclosure comes amid a furor over the Obama administration's aggressive tactics in its investigations of leaks." In other words, it was likely leaked by someone who took a personal risk exposing it.
posted by mediareport at 6:39 AM on June 6, 2013 [10 favorites]

dances_with_sneetches: "If the Republicans were smart they would jump on privacy as THE issue to get voters back."

Except the GOP is even worse on privacy issues. As gerryblog's WaPo link points out, this appears to be a renewal of an order under section 215 of PATRIOT Act pushed for and signed into law by Bush in 2001 with help from both parties, with only Democrat Russ Feingold voting against in 2001, and only 10 Democrats including Bernie Sanders voting against re-authorization in 2006.

And, while I am sure Rand Paul will attempt to make political hay out of this on civil libertarian grounds, he was among only three GOP Senators to vote against the FISA Amendments Act, while 20 Democrats (counting Bernie Sanders) did so. Those three Republicans deserve credit for taking a stand against their party, but to try to market the GOP as the privacy party would take some serious brass balls.
posted by tonycpsu at 6:39 AM on June 6, 2013 [4 favorites]

US laws are not the only laws.

They are the only laws that are going to be applied in this case.
posted by snuffleupagus at 6:40 AM on June 6, 2013

Marcy Wheeler with more on Section 215, and some guesses as to what the feds were after:

After all, aside from Medicare fraud, the government simply doesn’t investigate businesses, ever. Certainly not the kind of bankster businesses we’d like them to investigate. One of the few things they investigate business activities for is to see if they’ve been compromised. Moreover, the Section 215 order requires either a counterintelligence or a counterterrorist nexus, and the government has gone to great lengths to protect large businesses, like HSBC or Chiquita, that have materially supported terrorists.

Anyway, that’s all a wildarsed guess, as I said.

Ah well. If the government can use Section 215 orders to investigate all the Muslims in Aurora, CO who were buying haricare products in 2009, I’m sure big business won’t mind if the government collects evidence of their crimes in search of Iran or someone similar.

Update: Note, this order seems to show a really interesting organizational detail. This is clearly an FBI order (I’m not sure who, besides the FBI, uses Section 215 anyway). But the FISA Court orders Verizon to turn the data over to the NSC. This seems to suggest that FBI has NSA store and, presumably, do the data analysis, for at least their big telecom collections in investigations. That also means the FBI, which can operate domestically, is getting this for DOD, which has limits on domestic law enforcement.

posted by tonycpsu at 6:41 AM on June 6, 2013 [2 favorites]

We already knew this was happening. Why is this even news?
posted by Xoebe at 6:45 AM on June 6, 2013 [1 favorite]

You first say this isn't a secret, and secondly that it was leaked by the GOP. Well, which is it?

I said it wasn't a secret law. The order was secret as I explained in the next sentence, which you apparently did not read.
posted by Ironmouth at 6:46 AM on June 6, 2013

I have no mouth and I must scream.
posted by corb at 6:48 AM on June 6, 2013 [4 favorites]

Relevant New Yorker satire from Andy Borowitz: "A Letter to Verizon Customers."
posted by aught at 6:48 AM on June 6, 2013 [2 favorites]

Re: liberty v. risk of death, I am not entirely comfortable with America's new motto being "Patrick Henry was a chump."
posted by Holy Zarquon's Singing Fish at 6:48 AM on June 6, 2013 [8 favorites]

We already knew this was happening. Why is this even news?

We so desperately need civics education back -- not just for kids but adults. (I guess that used to be the news.) US citizens don't realize they simply don't have the rights against the government they did a few decades ago, in a number of areas. The gulf between the current state of the law as was taught in my criminal procedure class (4th/5th/6th amendments + due process) and what popular culture thinks the standards are is alarming. This includes my lawyer-parents, who went to law school around 1970, and one of them a former public defender.
posted by snuffleupagus at 6:49 AM on June 6, 2013 [9 favorites]

We already knew this was happening. Why is this even news?

This is such an annoying and tiresome response. You really think this isn't news?
posted by brain_drain at 6:50 AM on June 6, 2013 [13 favorites]

It's not about morality, but practicality. There's all this information that can be easily captured and studied. The temptation to go after that data and use is too tempting for pretty much anyone.

Sometimes morality is about resisting temptation. And millions of people do that every day of life. Sometimes we make laws to remind people about how to do right.

We already knew this was happening.

"This" was one reason a lot of people voted against the last two republican presidential candidates.
posted by IndigoJones at 6:55 AM on June 6, 2013 [2 favorites]

brain_drain: "This is such an annoying and tiresome response. You really think this isn't news?"

I don't think it is "news" to most of us because we realized that all the information pointing to activity like this has been around for years. Have you never heard of Room 641-A?

It's only "news" now because they're not getting enough traction with the IRS nonsense so they are switching outrages. It's a shame none of these same people weren't outraged when the Patriot Act was passed.
posted by Big_B at 6:56 AM on June 6, 2013 [7 favorites]

Big_B: "It's a shame none of these same people weren't outraged when the Patriot Act was passed."

I'm sure some of them will claim to have been, and maybe some of them were, but most weren't, or you wouldn't have seen the strong bipartisan votes to pass and re-authorize the PATRIOT Act.
posted by tonycpsu at 6:59 AM on June 6, 2013

Annika Cicada: Kind of orthogonally thinking here, what if the NHTSA was asking for this data to correlate against accidents and the like as a way to make our roads safer? Texting while driving idiots are the terrorists I fear..

If it was the NHTSA filing a warrant for such a purpose, then it wouldn't be in a FISA court, it wouldn't be secret, and there would be genuine civilian oversight. I won't speculate as to whether they could get such a warrant, but it would at least maintain the appearance of a government for and by the people.
posted by atbash at 6:59 AM on June 6, 2013 [1 favorite]

For fuck's sake, if a violation this huge and awful can be smoothed over in the name of typical D vs R nonsense, there is no fucking hope for this country. The real question isn't what happened, it's what the hell are we going to DO about it?
posted by corb at 7:01 AM on June 6, 2013 [14 favorites]

I said it wasn't a secret law. The order was secret as I explained in the next sentence, which you apparently did not read.

Yeah my coarse ignorant legal mind just can't quite wrap itself around the whole idea of a surveillance state whose existence is denied by government, not reported in the media, not understood by the public, based on a secret interpretation of a law and carried out through top secret executive orders whose leakers will probably go to jail forever, which according to you is in fact not a secret. But fuck whatever asshole told us about it!
posted by crayz at 7:02 AM on June 6, 2013 [7 favorites]

corb: "For fuck's sake, if a violation this huge and awful can be smoothed over in the name of typical D vs R nonsense"

Who's smoothing it over? The fact that it enjoyed bipartisan support is a sign that both parties are diseased when it comes to protecting privacy.
posted by tonycpsu at 7:04 AM on June 6, 2013

Has anyone found this in downloadable form yet? The Guardians little viewer thing is galling. And not forwardable.
posted by snuffleupagus at 7:04 AM on June 6, 2013

Does this action by Verizon invalidate my contract with them, I wonder? I've never actually read the damn thing, but you'd think there would be something in there about how they promise to protect your privacy.

Maybe if a couple million subscribers showed up in Verizon offices over the next week or so cancelling their service because of this, phone companies wouldn't be so quick to roll over to government demands to turn over customer data in the future -- or at least maybe they wouldn't play along and do it quietly.

Of course, being an old boomer/codger, I can actually imagine life without a cell phone, unlike most of you whippersnappers.
posted by TwoToneRow at 7:04 AM on June 6, 2013 [3 favorites]

Nevermind, already posted upthread.
posted by snuffleupagus at 7:05 AM on June 6, 2013

most weren't, or you wouldn't have seen the strong bipartisan votes to pass and re-authorize the PATRIOT Act.

Again, as crayz noted above, a key point here is the accusation from some Senators that the Obama administration is interpreting the Patriot Act in ways that go beyond what was intended by Congress. From last November:

The Patriot Act You Don’t Know About

When the federal government wants some information under Section 215 of the Patriot Act—which allows agents to access “tangible things” like business records—it goes to the Foreign Intelligence Surveillance Court. This much we know.

What we don’t know is how broadly FISA interprets Section 215—what information it allows federal agents to access, and to what extent the government must prove “relevance” to a terrorism investigation.

Two men who do know, however—Senators Mark Udall and Ron Wyden of the Senate Intelligence Committee—have consistently sounded alarms about what FISA is allowing under Section 215. While unable to reveal specifically what they have learned, the two Senators have repeatedly said that the public would be shocked if it knew what information was being collected with the help of FISA and the Patriot Act.

Surprise, surprise. They were right.
posted by mediareport at 7:05 AM on June 6, 2013 [7 favorites]

TTR, It's not clear who this covers -- it may only be business customers.
posted by snuffleupagus at 7:05 AM on June 6, 2013

It's not about morality, but practicality. There's all this information that can be easily captured and studied. The temptation to go after that data and use is too tempting for pretty much anyone.

They are stored separately. I have some knowledge of the process. The analysts have to go down a worksheet and tag the collection indicating for what legal purposes it may be used, with direct cites. They go into different databases which cannot be accessed for particular reasons, depending on content of the record. They have to do a significant amount of work like this for every record.
posted by Ironmouth at 7:08 AM on June 6, 2013 [1 favorite]

Finally, the FISA court must be secret. You can't have the court resposible for deciding if the government's monitoring of terrorists and spies openly deciding whether or not Boris Badanov's phone ought to be tapped conduct their sessions in open court, because Badanov is going to go back to the Embassy and tell his buddies to stop using the phones in the lobby.

But what about after you drone Boris to death? Can we release what happened in the FISA court after that, or is this one of those "when our neverending war ends" things?
posted by Drinky Die at 7:08 AM on June 6, 2013

I don't think it is "news" to most of us because we realized that all the information pointing to activity like this has been around for years.

Who are "most of us"? If your point is that no one should be surprised by this, then I agree. But I have no idea why anyone would consider the leak of a highly-classified document confirming this ongoing activity to not be "news."

It's only "news" now because they're not getting enough traction with the IRS nonsense so they are switching outrages.

Who are "they"? Are you suggesting Glenn Greenwald is trying to smear Obama?
posted by brain_drain at 7:08 AM on June 6, 2013 [2 favorites]

Does this action by Verizon invalidate my contract with them, I wonder?

Certainly not. The idea that they would not have covered their ass with multiple layers of detailed disclaimers is silly.
posted by aught at 7:09 AM on June 6, 2013

mediareport: "Again, as crayz noted above, a key point here is the accusation from some Senators that the Obama administration is interpreting the Patriot Act in ways that go beyond what was intended by Congress."

Yes, I've followed Wyden/Udall's statements on this matter, but ultimately I don't think it's going to matter because Section 215 is so overly broad, as pointed out in my emptywheel link above. They might be correct that the public would be "shocked", but anyone who's been paying attention to FISA and the debate over the FISA Amendments Act renewal could only be shocked in the Captain Renault sense.
posted by tonycpsu at 7:09 AM on June 6, 2013 [1 favorite]

Though it isn't clear that this actually covers 'regular' folks rather than just corporate accounts, it would be inconceivable to think there would not be more of these court orders for more carriers, and more users. I think by narrowing the order they are able to cover their ass in the event of a leak..just like this one. Yeah, I know, there's no proof of this..
posted by dukes909 at 7:13 AM on June 6, 2013 [1 favorite]

They might be correct that the public would be "shocked", but anyone who's been paying attention to FISA ...

Yeah let me just draw a Venn diagram of "the public" and "anyone who's been paying attention to the Foreign Intelligence Surveillance Act debate"
posted by crayz at 7:13 AM on June 6, 2013 [4 favorites]

Can we release what happened in the FISA court after that, or is this one of those "when our neverending war ends" things?

This particular order was scheduled for declassification in 2038.
posted by snuffleupagus at 7:14 AM on June 6, 2013 [4 favorites]

A spokesman for the NSA released the following statement:

"When you're a little bit older, we'll have to talk more about these feelings, and what causes them, and how we can control these feelings. I'm sorry I intruded on your privacy. I'll be sure to knock next time, ok?"
posted by weapons-grade pandemonium at 7:15 AM on June 6, 2013 [10 favorites]

Who's smoothing it over? The fact that it enjoyed bipartisan support is a sign that both parties are diseased when it comes to protecting privacy.

Let me be clear: anyone who thinks that rallying round the flag and engaging in partisan bickering rather than addressing the substance of this is more important, is actively aiding in the suppression of our civil liberties. It doesn't matter whether X person would have done this, or who's going to come into power or not come into power. What matters is erasing this stain from our national conscience.

holyfuckholyfuck I cannot even wrap my brain around this today.
posted by corb at 7:15 AM on June 6, 2013 [5 favorites]

crayz: " Yeah let me just draw a Venn diagram of "the public" and "anyone who's been paying attention to the Foreign Intelligence Surveillance Act debate""

Hey, I'm with you -- I just happen to think more of the public should pay attention to these things, and should have done so during the PATRIOT Act debate instead of accepting the supposed tradeoff between liberty and safety from brown people.
posted by tonycpsu at 7:16 AM on June 6, 2013 [5 favorites]

This shouldn't be a surprise or shock to anyone who has been paying attention.
posted by zarq at 7:17 AM on June 6, 2013 [2 favorites]

If anyone wants to let Verizon know what you think about this: http://aboutus.verizonwireless.com/leadership/executive.
I’ve read on a V. forum that the e-mail structure is firstname.lastname@verizonwireless.com.

And from now on when anyone comes into a thread defending sh*t like this, I’m going to assume they’re a plant. Not necessarily a full-time govt. employee. But I figure if other companies can hire $10/hour freelancers to post favorable reviews about their products and services, why not the Feds.
posted by NorthernLite at 7:18 AM on June 6, 2013 [2 favorites]

corb: "Let me be clear: anyone who thinks that rallying round the flag and engaging in partisan bickering rather than addressing the substance of this is more important"

Partisan politics is how we got into this mess, and unless you have a magic wand to wave to make our system operate independent of political motivations, it's our only way out of it. You go to war with the three branches we have, not the ones you might wish to have.

This isn't about scoring points against the other team, it's about understanding how the incentives for these politicians got so misaligned that they thought it was okay to pass broad statutes allowing the state to collect data without any oversight.

It does so happen that most of the objections to this opaque data collection came from Democrats in Congress under Bush, and that's worth pointing out, if only to assess who's actually in play when it comes to any potential legislative remedy to this problem. You know you'll get the Rand Paul faction of the GOP to come along, and probably some of the leftier Democrats, but to make this an actual thing that can pass Congress (and potentially override an Obama veto threat?) you need to get the mainstream of both parties on board.

I'm sorry to bring politics into a problem that politics created.
posted by tonycpsu at 7:22 AM on June 6, 2013 [9 favorites]

Hey, I'm with you -- I just happen to think more of the public should pay attention to these things

It gets a little hard when even sitting US Senators who have known about and opposed the secret interpretations of the law are legally prohibited from disclosing those interpretations to the public in the debate over renewing the law except saying "it's real bad stuff you don't know about!"

Combined with the "no standing to sue because the fact we're spying on you is secret" arguments we're in fucking Alice in Wonderland political/legal theory. I'm not surprised the public has a hard time understanding - our trillion dollar surveillance industrial complex has put a lot of work into making it hard to understand.
posted by crayz at 7:22 AM on June 6, 2013 [21 favorites]

If anyone wants to let Verizon know what you think about this.

I don't think the right answer is to be angry at Verizon for following a court order. The problem is that we have secret courts issuing secret warrants to do things the American people would not approve of. It is the antithesis of a government for and by the people.
posted by atbash at 7:25 AM on June 6, 2013

[Door shuts noisily behind Mosseli as she leaves for a socialist country that doesn't treat its citizens like commodities] [Door opens noisily as Mooseli returns, having realized that the disease of capitalism has spread everywhere, but only this place has really good Tex-Mex]

P.S. Isn't Verizon owned by a Koch brother? My guess: probably Verizon could have fought harder to keep its records private, only it's run by someone who's all for indiscriminate surveillance?
posted by Mooseli at 7:27 AM on June 6, 2013 [1 favorite]

This is a court-issued warrant. No one is allowed to avoid them.

Except when they are unconstitutional. Didn't Verizon successfully challenge an overbroad FBI subpoena way back when?
posted by snuffleupagus at 7:29 AM on June 6, 2013 [1 favorite]

Just wanted to add that there's a fascinating video of a lecture on whistleblowing and surveillance given at 29c3 featuring Jesselyn Radack, Thomas Drake and Bill Binney, the latter two being ex-NSA. Originally posted here, but I think it's relevant; it's not a pretty picture and I really hope we can find ways to re-assert the importance of the government obeying the constitution.
posted by nTeleKy at 7:30 AM on June 6, 2013 [4 favorites]

Exhibit A for liberals trying to understand why gun control measures are resisted. If the government will interpret its public safety responsibility to do this to the vast majority who have cell phones, what will they be willing to do the minority who have guns?

(The Bill of Rights actually explicitly allows for "papers" -- the best analog of cell phone records -- can be examined with the benefit of a warrant, whereas the scope of impediments permitted by the "well regulated" inducement is debatable at best.)
posted by MattD at 7:32 AM on June 6, 2013 [3 favorites]

crayz: " Combined with the "no standing to sue because the fact we're spying on you is secret" arguments we're in fucking Alice in Wonderland political/legal theory. I'm not surprised the public has a hard time understanding - our trillion dollar surveillance industrial complex has put a lot of work into making it hard to understand."

I'm not surprised, either. I follow this stuff closely, and even I sometimes get lost when reading bloggers who have to resort to reading entrails in order to know what's actually going on versus what's written into law.

To be clear, I'm not saying this is the public's fault for not paying close enough attention, but I do think there was a widespread feeling among the public when the PATRIOT Act was originally passed that we had to sacrifice some liberties in order to stop the Muslim Menace from killing us while we slept. Most of the cries against the PATRIOT Act came from the dirty fucking hippie set, and those who had problems with the many more troublesome sections of the PATRIOT Act were labeled as providing aid and comfort to the enemy. In that sense, I do think the public deserves some scorn for not taking these concerns more seriously when they were originally raised.
posted by tonycpsu at 7:34 AM on June 6, 2013 [3 favorites]

Exhibit A for liberals trying to understand why gun control measures are resisted. If the government will interpret its public safety responsibility to do this to the vast majority who have cell phones, what will they be willing to do the minority who have guns?

And can you imagine what would happen if we had to register our cars with the government? They would be monitoring all our movements before you could blink.
posted by Drinky Die at 7:35 AM on June 6, 2013 [6 favorites]

Yeah my coarse ignorant legal mind just can't quite wrap itself around the whole idea of a surveillance state whose existence is denied by government, not reported in the media, not understood by the public, based on a secret interpretation of a law and carried out through top secret executive orders whose leakers will probably go to jail forever, which according to you is in fact not a secret. But fuck whatever asshole told us about it!

Your failure to pay attention to the laws passed by your government a few weeks after the greatest terrorist attack in history 12 years ago, and failure to repeatedly read the dozens of news stories on the subject in the 12 years following this, or even read the relevant wikipedia articles does not make it a "secret."

One of the giant frustrations in these threads is the outrage about stuff that has been known for years by anyone who wants to look.

This is something that was voted for out in the open. The only Senator who voted against this section lost his seat years ago. 99-1. If you didn't want this, why did you vote for people who voted for it, over and over again?

If you opposed this, you're supposed to call your congressman. You don't need to be a lawyer to look up the section of the law and read it. The Wikipedia article on FISA is excellent. It contains nearly every bit of information on this subject one would need to make an informed decision.

Yet time after time, I come into these threads and they are filled with disinformation, confusion and complete lack of any pros-and-cons discussion of the matter. And everyone acts like this is Big Brother and they were taken by surprise. Our politicians, when they passed this, openly, were reacting directly to a populace that demanded instant action and a guarantee that 9/11 never happen again. People act like their refusal to pay attention to important parts of the government and the openly published and passed laws is Big Brother.

If this is Big Brother, than Big Brother is us. Seriously, why didn't you call up your Congressman and tell him you didn't like this? Why aren't you doing it right now? A simple change removing telephone call records from this law would do it!

What frustrates me the most is that I live in a part of the United States where I don't get to call my congressman, because I'm not allowed one. I'd be writing every other day!

/end going Bullworth.
posted by Ironmouth at 7:36 AM on June 6, 2013 [11 favorites]

I'm a criminal defense lawyer. This is incredibly hosed.

To start with: privacy has always been a matter of degrees. The Fourth Amendment grants all of us protection against unreasonable searches and seizures (regardless of whether we are being investigated for crimes or are bystanders). This is not the first time a US citizen has been secretly monitored by the government. That's why the show is called "The Wire."

But it is a huge problem that someone thought it was "reasonable" to seize a copy of every citizen's phone records without ever telling anyone, in the hopes of achieving something they will not ever disclose.

This interpretation of the Fourth Amendment is not particularly robust.

We've had a squishy definition of privacy in the Constitution for more than 200 years, but for the most part it still offers powerful protection. Why is that? It's because of a constant battle fought in the courts. We push one way, they push the other, we arrive somewhere "reasonable."

But there's only one side here: secret courts, secret warrants, international spy agencies who use the information for secret purposes. The vast majority of people affected by this intrusion will never have a chance to challenge it in court. So those same battle-hardened lawyers who are used to pushing as hard as they can for what they can get now have nothing to push against, and they've gotten literally everything.

And yes, who you called when can be a constitutionally protected secret. To take one example: the investigatory phone calls that Dzhokhar Tsarnaev's lawyer makes are absolutely secret from police and prosecutors, because he and you and everyone else has a right to a lawyer who will investigate the criminal charges against you without government interference. If this absurdly broad seizure is indeed directed at the Tsarnaevs, that's only the most salient of a million ways it violates individual constitutional rights.

But those same government investigators who are used to pushing as hard as they can against defense lawyers who are pushing back, we can trust them to only use this information for proper purposes, right, even if no one will ever know whether they do? 50 USC s. 1861(g) does require the Attorney General to adopt minimization procedures governing the retention and dissemination of this information by the FBI -- the NSA will probably follow those, right? Sub. (c) requires that the order "direct that minimization procedures adopted pursuant to subsection (g) be followed," and this order doesn't include that direction, but they probably just took it as implied, right?

This is hosed. But if a privacy invasion doesn't get to you, think about this: the government isn't doing the spying themselves, they're forcing private citizens to spy on each other. The order makes it a crime for Verizon employees not to actively assist the government in spying on all of their fellow citizens. And it makes it a crime for Verizon employees to disclose that they have been compelled to spy on all of their fellow citizens. Even if you are happy with the government watching where you go and what you do at all times, are you happy with another private citizen, someone who you've contracted with to keep information confidential, being compelled by threat of prison to continuously hand over your information while pretending everything is fine? Not because the government even suspects you might be doing anything wrong, but just because it's a handy way to find out if you are?

Maybe a faceless Verizon employee doesn't quite get that point across. The order could just as easily say that certain websites having user messaging systems must inform the NSA each time any user communicates with another user. Try picturing Matt, Jessamyn and the other mods talking over whether to spy on us on an ongoing basis or go to prison for us. That's what this is.
posted by jhc at 7:36 AM on June 6, 2013 [32 favorites]

I'm having a difficult time imagining how "let's get a court order to get this information for the Tsarnaevs and those who they contact or are contacted by" would've been less effective at figuring out whether they were part of some larger plot than "let's get a court order to get this information for millions of completely arbitrary people".

In fact, I'm even having a difficult time imagining how it wouldn'thave been more effective.
posted by Flunkie at 7:38 AM on June 6, 2013 [5 favorites]

If you didn't want this, why did you vote for people who voted for it, over and over again?

You may not know this Ironmouth, but some people argue that you always have to vote on the lesser of two evils even when your side does things you don't like.
posted by Drinky Die at 7:38 AM on June 6, 2013 [8 favorites]

Isn't this just haggling about the price, as the saying goes? Pen registers have been legally obtainable by law enforcement for a long time now. I'm not sure if they ever weren't. Instead of paying per trick, they just want to pay a salary.
posted by gjc at 7:39 AM on June 6, 2013 [1 favorite]

Yet time after time, I come into these threads and they are filled with disinformation, confusion and complete lack of any pros-and-cons discussion of the matter.

You in turn seem quite confused that most people do not regard matters of ethics in terms of a utilitarian calculus where "utility" seems to be defined situationally, arbitrarily, or capriciously.
posted by kewb at 7:39 AM on June 6, 2013 [1 favorite]

@Ironmouth: I've actually emailed and called my Senators and Reps. I never get a reply except for the monthly email updates that they send to everyone including one I saved a while back praising their own votes for the renewal of the Patriot Act.
posted by dukes909 at 7:41 AM on June 6, 2013 [4 favorites]

Let's keep in mind that the Tsarnev thing is speculation. The Emptywheel blog offered up the idea of an investigation into industrial espionage (Chinese?), which seems just as or more plausible to me based on recent reporting.
posted by snuffleupagus at 7:42 AM on June 6, 2013 [1 favorite]

NBC's Pete Williams: Justice Dept Will Launch Investigation Into Guardian Leaks
posted by BobbyVan at 7:43 AM on June 6, 2013 [2 favorites]

I'll cop to it: I thought the idea of the feds monitoring all telephone use was logistically ridiculous. But to now find out it is, in fact, a real thing? It's always so much worse than you think.
posted by DirtyOldTown at 7:44 AM on June 6, 2013 [1 favorite]

@Drinky Die - "And can you imagine what would happen if we had to register our cars with the government?"

Well, aside from the fact we do already - there's proposals for a mileage tax (because apparently not enough revenue is generated by simply putting taxes on gasoline) tracked via constantly-on GPS. And if the GPS is constantly on, collecting your driving info - they're collecting where you drive.

http://www.blueoregon.com/2012/06/gps-tax-terrible-horrible-no-good-very-bad-idea-just-wont-die/

It's a classic example of just because you can do something... it doesn't mean you SHOULD do it.
posted by JB71 at 7:45 AM on June 6, 2013 [1 favorite]

Justice Dept Will Launch Investigation Into Guardian Leaks

That should be good for a chuckle. I'd suprised to hear myself say this, but I'm about ready for a slash-and-burn independent counsel.
posted by snuffleupagus at 7:45 AM on June 6, 2013 [4 favorites]

What frustrates me the most is that I live in a part of the United States where I don't get to call my congressman, because I'm not allowed one. I'd be writing every other day!

You have an elected representative who is allowed to speak on the floor of the US House of Representatives, introduce proposed legislation, and serve on committees. Despite the fact that she is not allowed to participate in final votes, she has far, far more power to effect change than any of us who you assume do not write to our representatives that you assume we vote for over and over.

If you're not willing to bother writing to her simply because she doesn't have a final vote, maybe you should stop with your constant litany of "It's all your fault because you don't write to the jerks that you elect".
posted by Flunkie at 7:45 AM on June 6, 2013 [4 favorites]

I'm really impressed to see TS/SI leaked, but damn, why didn't they leak the FBI's application for the warrant instead of just the scary-sounding order. It'd make it a lot easier to understand what's actually going on.
posted by kiltedtaco at 7:48 AM on June 6, 2013

If this absurdly broad seizure is indeed directed at the Tsarnaevs, that's only the most salient of a million ways it violates individual constitutional rights.

Let's get down to it--your phone records of when you called your lawyer are constitutionally protected? How? The content of the communication is not disclosed. Since my billing records aren't even discovery proof, how can I then claim to be able to hide the fact of the phone call.

Nor was it claimed these were directed at the Tsarnevs criminally. They use regular search warrants. These are title 50, not title 18 warrants. The point made by me (advanced originally by Josh Marshall) is that the timing indicates this is a post-attack search for information about future, related attacks. The Tsarnev investigation will use regular warrants.
posted by Ironmouth at 7:50 AM on June 6, 2013 [1 favorite]

@Drinky Die - "You may not know this Ironmouth, but some people argue that you always have to vote on the lesser of two evils even when your side does things you don't like."

Or even if your side does things you like. Sometimes the problem is that you're not looking close enough at the things you ostensibly like, and aren't thinking through the ramifications of that glorious piece of legislation you really, really thought would be absolutely wonderful, because the people proposing it were just so great, and everyone around you told you that it was great.

But I'm starting to think we have reached critical mass - just like Mr. Creosote. One more thin mint of legislation... and *boom*.

The wreckage will take a long time to clean up, and the *boom* hasn't even really started yet.
posted by JB71 at 7:53 AM on June 6, 2013

Does this action by Verizon invalidate my contract with them, I wonder? I've never actually read the damn thing, but you'd think there would be something in there about how they promise to protect your privacy.

Don't most big corporate service contracts now include clauses that allow them to change the terms of the contract at will? I'd imagine most of those contracts are written in disappearing ink on Verizon's side these days anyway, not that it would matter...

Except when they are unconstitutional.

Which it's supposed to be the court system's duty to determine... Too little attention has been paid to how screwed up the court system is now, having been packed with Federalist Society types and Birchers over the last several decades.

Maybe the public outcry will finally be enough to get some traction on these issues now. As much as blaming Obama might be gratifying and even justified, if we want to change this, it's got to happen through the legislative process. The best Obama could do is step in and start intervening in the process that allows this as established in current law. The next administration would still be free to do the same thing.

What we really need is some legislation that clarifies two things that have been hopelessly muddled up: That laws can't be made or interpreted in secret, and that the public has an absolute right to privacy that not even private corporations can infringe without voluntary consent (as long as companies have an essentially unlimited ability to store, buy and sell everyone's information on private markets without right of refusal, it's not going to be realistic to think the government isn't going to want in on the action, too).

And as a culture, we have to come to grips with the fact that reasonable privacy is necessary to maintaining a civil society and a functional democracy. Not just privacy from unwarranted government snooping, but privacy from private sector intrusion, too.

There's no justification for all the casual surveillance being done these days, even from a simple cost-benefit analysis. Fewer lives are still lost to terrorism in the US than to routine traffic accidents. We should never have let things get so out of hand, but the cultural and political push from the tech industry against better protection for consumer privacy rights coupled with the aggressive push after 9/11 from the lobbyist goons and their water-carriers in Washington have all contributed to this burgeoning anti-privacy movement that's taken hold.
posted by saulgoodman at 7:53 AM on June 6, 2013 [4 favorites]

your phone records of when you called your lawyer are constitutionally protected? How?

Your lawyer's phone records of who else they called in defending your case (I called them "investigatory phone calls" in the paragraph you quoted) are constitutionally protected. Although I confess that's an educated guess on my part.
posted by jhc at 7:55 AM on June 6, 2013

If you're not willing to bother writing to her simply because she doesn't have a final vote, maybe you should stop with your constant litany of "It's all your fault because you don't write to the jerks that you elect".

What good does it do! She can offer no vote for trade. She can make no vote herself. She is routinely excluded from getting to speak on the floor by floor managers who want that time for voting members. My complaining to her is 100% useless. I'm therefore left to only contacting my city council! You take for granted what you have.
posted by Ironmouth at 7:56 AM on June 6, 2013

It's interesting that no one seems that bent out of shape that giant multinational communications corporations retain and presumably routinely use all this personal information on us in the first place -- only that our elected officials are occasionally able, in the name of national security, to pressure them to give up a few relatively small chunks of it.

You have a very good point. Make no mistake: This is a major scoop by Greenwald (whose annoying know-nothing critics on Metafilter are finally quiet) but just as big an issue here is the corporate collusion required to pull this off, which is a defining hallmark of academic, classically-defined Fascism. Not the only one, but a significant one. And while the Constitutional concerns are valid, what is perhaps as disconcerting is the degree to which we (as an American society) are quiet about the growing power of private, largely unaccountable corporate entities that are assuming roles formerly managed by a government that we at least had some oversight and control over.
posted by Blazecock Pileon at 7:56 AM on June 6, 2013 [10 favorites]

What good does it do!

This is rich.
posted by Flunkie at 7:57 AM on June 6, 2013 [3 favorites]

Ironmouth: The point made by me (advanced originally by Josh Marshall) is that the timing indicates this is a post-attack search for information about future, related attacks. The Tsarnev investigation will use regular warrants.

Of course you'd acknowledge now that based on public reporting this order seems to be a regular renewal of a three-month order that was first issued in 2006.
posted by BobbyVan at 7:57 AM on June 6, 2013 [3 favorites]

Your lawyer's phone records of who else they called in defending your case (I called them "investigatory phone calls" in the paragraph you quoted) are constitutionally protected. Although I confess that's an educated guess on my part

I just say called witness in case. But billing records are not protected constitutionally.
posted by Ironmouth at 7:58 AM on June 6, 2013

What good does it do!
...
This is rich.

DC doesn't have voting representatives.
posted by snuffleupagus at 7:59 AM on June 6, 2013

Wait, ironmouth spends every election cycle going off on third party advocates for not voting tactically and now berates us for voting for shitty compromise candidates?
posted by absalom at 8:00 AM on June 6, 2013 [15 favorites]

I'm well aware of that, snuffleupagus, and in fact I think it should have been very clear that I'm well aware of it had you read what I wrote.
posted by Flunkie at 8:00 AM on June 6, 2013

I'd note that the GOP majority has been actively obstructionist in refusing to fulfill its duty to advise and consent in Obama's appointment of Federal judges, in an open effort to minimize the lasting impact of the Administration despite the harm done to the judiciary.

This is true and a major problem, but if Obama thinks this is legal we probably would not want to rest our hopes on his judicial appointments saving us from this.
posted by Drinky Die at 8:00 AM on June 6, 2013 [2 favorites]

Blazecock Pileon: "whose annoying know-nothing critics on Metafilter are finally quiet)"

You're offering appeal to authority as an alternative to ad hominem. Greenwald has often deserved criticism for getting shit wrong and making tendentious arguments based on flimsy evidence. When he's wrong, he deserves criticism. When he's right, he deserves praise. Why is this hard to understand?
posted by tonycpsu at 8:01 AM on June 6, 2013 [6 favorites]

I missed your last post, Flunkie. Apologies.
posted by snuffleupagus at 8:02 AM on June 6, 2013

Of course you'd acknowledge now that based on public reporting this order seems to be a regular renewal of a three-month order that was first issued in 2006.

One anon source says it seems to be. Not billed as even a law enforcement source.
posted by Ironmouth at 8:02 AM on June 6, 2013

I missed your last post, Flunkie. Apologies.

No problem.
posted by Flunkie at 8:03 AM on June 6, 2013

The deeper problem with the nothing-to-hide argument is that it myopically views privacy as a form of secrecy. In contrast, understanding privacy as a plurality of related issues demonstrates that the disclosure of bad things is just one among many difficulties caused by government security measures. To return to my discussion of literary metaphors, the problems are not just Orwellian but Kafkaesque. Government information-gathering programs are problematic even if no information that people want to hide is uncovered. In The Trial, the problem is not inhibited behavior but rather a suffocating powerlessness and vulnerability created by the court system's use of personal data and its denial to the protagonist of any knowledge of or participation in the process. The harms are bureaucratic ones—indifference, error, abuse, frustration, and lack of transparency and accountability.

-- Why Privacy Matters Even if You Have 'Nothing to Hide'
posted by Western Infidels at 8:05 AM on June 6, 2013 [5 favorites]

This is true and a major problem, but if Obama thinks this is legal we probably would not want to rest our hopes on his judicial appointments saving us from this.

The law and an entire panel of federal judges say its legal.
posted by Ironmouth at 8:05 AM on June 6, 2013

The law and an entire panel of federal judges say its legal.

What is legal? What lines does the law draw - what is and isn't legal? Oh right, we aren't even allowed to know.
posted by crayz at 8:07 AM on June 6, 2013 [7 favorites]

This is true and a major problem, but if Obama thinks this is legal we probably would not want to rest our hopes on his judicial appointments saving us from this.

Meet my law-crush, Goodwin Liu.
posted by snuffleupagus at 8:07 AM on June 6, 2013 [2 favorites]

This has been a pretty groundbreaking couple of years for realizing where we really stand in America, with regard to both privacy, freedoms, rights, constitutionality, etc. I know a lot of folks here have been talking about these issues and making educated guesses about what's been happening, but there has been quite a bit of information coming out that gives us a pretty clear overview of what's going on. It's my sincere hope that this will give some ground so those of us who care about things such as constitutionality and legality can really start gaining some traction in pushing back against these violations.

I'll cop to it: I thought the idea of the feds monitoring all telephone use was logistically ridiculous. But to now find out it is, in fact, a real thing? It's always so much worse than you think.

If you'd like a good look at the logistical capabilities, I recommend checking out Bill Binney's portion of the video I posted above. He worked for the NSA developing software for doing such monitoring and while he doesn't say exactly what they're doing, he does lay out what the potential is pretty well in the talk. The estimate, IIRC, is something like 100 years of textual/numerical records for their new facility.
posted by nTeleKy at 8:09 AM on June 6, 2013 [3 favorites]

One anon source says it seems to be. Not billed as even a law enforcement source.

Confirmed by two Senators on Intelligence Committee.

Jeff Zeleny of NY Times: Sens. Feinstein and Chambliss, of Intel Committee, say NSA collection of phone records is part of ongoing practice. They're not alarmed
posted by BobbyVan at 8:10 AM on June 6, 2013 [3 favorites]

jhc: This interpretation of the Fourth Amendment is not particularly robust.

This is my favorite sentence EVAR.
posted by quonsar II: smock fishpants and the temple of foon at 8:10 AM on June 6, 2013 [1 favorite]

snuffleupagus: "TTR, It's not clear who this covers -- it may only be business customers."

And, therein, lies the rub. Shouldn't we be worried about such vagueness?
posted by Samizdata at 8:16 AM on June 6, 2013

Washington Post: NSA chief, two weeks ago: ‘We’re the only ones not spying on the American people’
posted by BobbyVan at 8:16 AM on June 6, 2013 [2 favorites]

SollosQ: Let me present a hypothetical world for you: Imagine that domestic wiretapping and other forms of privacy invasion, could save thousands, or maybe even only hundreds, of U.S. lives a year, as well as keeping morale high (in the absence of hundreds of deaths a year by terrorism). Would you be okay with such invasions of privacy knowing that you had such safety?

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.

-- Ben Franklin

posted by Acey at 8:20 AM on June 6, 2013 [5 favorites]

Because other conservative President's appointee's –– note the GOP controlled 5 of 7 Presidential terms prior to Obama's election -- are good predictors of what judges appointed by Obama would do? How does that follow?
posted by snuffleupagus at 8:25 AM on June 6, 2013

This is true and a major problem, but if Obama thinks this is legal we probably would not want to rest our hopes on his judicial appointments saving us from this.

The law and an entire panel of federal judges say its legal.

All the more reason not to assume Obama appointees will change anything.

The way to get the law changed is to have them change the law so phone records are excluded from section 219's reach. To do that, call your Congressman. Every day.
posted by Ironmouth at 8:25 AM on June 6, 2013

The law and an entire panel of federal judges say its legal.

Hard to say if secret laws are really legal, if no one can challenge them.
posted by Blazecock Pileon at 8:25 AM on June 6, 2013

More from Marcy Wheeler:

Here’s the question, though: if this program is no big deal, as the Administration and some members of Congress are already claiming in damage control, then why has the Administration been making thin non-denial denials about it for years? If it is so uncontroversial, why is it secret?

Is there anything about the order that tips people off to whom, precisely, is being targeted? Does it explain how good (or bad) NSA’s data analysis tools are?

No. The collection is so broad, it could never provide hints of who is being investigated.

...

There is nothing operational about this Section 215 order that needs to be secret. Nothing. A TS/SCI classification for zero operational reason.

The secrecy has been entirely about preventing American citizens from knowing how their privacy had been violated. It serves the same purpose as Alexander’s obviously dishonest answer.

...

The Administration wants you to believe that “all three branches” of government have signed off on this program (never mind that last year FISC did find part of this 215 collection illegal — that’s secret too).

But our court system is set up to be an antagonistic one, with both sides represented before a judge. The government has managed to avoid such antagonistic scrutiny of its data collection and mining programs — even in the al-Haramain case, where the charity had proof they had been the target of illegal, unwarranted surveillance — by ensuring no one could ever get standing to challenge the program in court. Most recently in Clapper v. Amnesty, SCOTUS held that the plaintiffs were just speculating when they argued they had changed their habits out of the assumption that they had been wiretapped.

This order might just provide someone standing. Any of Verizon’s business customers can now prove that their call data is, as we speak, being collected and turned over to the NSA. (Though I expect lots of bogus language about the difference between “collection” and “analysis.”)

That is what all the secrecy has been about. Undercutting separation of powers to ensure that the constitutionality of this program can never be challenged by American citizens.

posted by tonycpsu at 8:26 AM on June 6, 2013 [3 favorites]

snuffleupagus: "TTR, It's not clear who this covers -- it may only be business customers."

And, therein, lies the rub. Shouldn't we be worried about such vagueness?

This is just the order. It isn't the application for the warrant.
posted by Ironmouth at 8:26 AM on June 6, 2013

Direct quote from Feinstein re: BobbyVan's most recent comment:

Feinstein on surveillance order: “As far as I know, this is the exact three-month renewal of what has been in place for the past 7 years"
posted by mediareport at 8:26 AM on June 6, 2013 [2 favorites]

Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.

-- Ben Franklin

The truest, most overused and misinterpreted comment, evar.

Who you call on the telephone isn't an essential liberty.
posted by gjc at 8:27 AM on June 6, 2013 [2 favorites]

The law and an entire panel of federal judges say its legal.

Hard to say if secret laws are really legal, if no one can challenge them.

I read the law this morning. It isn't secret.
posted by Ironmouth at 8:28 AM on June 6, 2013 [1 favorite]

Who you call on the telephone isn't an essential liberty.

Well, I'd call freedom of association an essential liberty. YMMV.
posted by Benny Andajetz at 8:29 AM on June 6, 2013 [7 favorites]

Because other conservative President's appointee's –– note the GOP controlled 5 of 7 Presidential terms prior to Obama's election -- are good predictors of what judges appointed by Obama would do?

No, Obama's legal views are the better predictor, but when you seem to have both sides agreeing that makes it even more clear.
posted by Drinky Die at 8:30 AM on June 6, 2013

Who you call on the telephone isn't an essential liberty.

That seems a little too simplistic? Who you call on the phone could be related to the exercise of a fundamental right and deserving the protection of some form of heightened scrutiny. On that anodyne a theoretical level.
posted by snuffleupagus at 8:30 AM on June 6, 2013 [1 favorite]

Who you call on the telephone isn't an essential liberty.

Would you mind sending me a .pdf of your last month of incoming and outgoing phone calls via memail?
posted by BobbyVan at 8:31 AM on June 6, 2013 [2 favorites]

Ironmouth: " I read the law this morning. It isn't secret."

But, as emptywheel points out, the judicial review process is secret, at least in part. Apparently the FISC found some of the section 215 activity to be illegal, but nobody can see exactly what was illegal because it was a closed hearing.
posted by tonycpsu at 8:31 AM on June 6, 2013 [2 favorites]

It isn't secret.

A pair of Senators appear to disagree with you. Enough said.
posted by Blazecock Pileon at 8:32 AM on June 6, 2013 [3 favorites]

Nothing on the Verizon twitter feed about this.
posted by cjorgensen at 8:33 AM on June 6, 2013

If the knowledge that the NSA, FBI, etc. have access to the details of literally every phone call you make, inside or outside the US, isn't a chilling effect on the use of telephone networks to contact politically unpopular entities (WikiLeaks, accused domestic criminals, Muslim groups, etc.), I don't know what is.
posted by Holy Zarquon's Singing Fish at 8:33 AM on June 6, 2013 [5 favorites]

Yet time after time, I come into these threads and they are filled with disinformation, confusion and complete lack of any pros-and-cons discussion of the matter.

With all respect, Ironmouth, I don't see how you're in a position to scold people about spreading "disinformation" when your first major contribution to this thread was the assertion of a purely speculative link to the Tsarnraev investigation as if it were a fact (it follows that...). It seems to me that's an attempt (knowing or unconscious) to rope in people's lingering anxieties about the Boston bombing to confuse the issue by making this seem like an exception rather than ordinary. It certainly doesn't help us discuss the pros and cons of the matter in a rational, objective way.
posted by gerryblog at 8:34 AM on June 6, 2013 [15 favorites]

No, Obama's legal views are the better predictor, but when you seem to have both sides agreeing that makes it even more clear.

Obama doesn't currently have the luxury of being a con law Professor. While I am massively disappointed with Obama, and Holder, it is still true that a prudent President doesn't charge into a legal minefield that has been prepared for him. So I could see the Administration being reluctant to try and roll things back through the courts (and the Court) while they are still so stacked, in the areas of domestic policy I can imagine him being attuned to (from community organizing).

On the other hand, I am unendingly disappointed with the administration's embrace and possible expansion of the Bush-era surveillance state.
posted by snuffleupagus at 8:35 AM on June 6, 2013

Indeed. I would have appreciated even "mostly stopped." Rather than, "built huge new data center for."
posted by snuffleupagus at 8:38 AM on June 6, 2013 [5 favorites]

The idea that the word "warrant" could apply to a 7-year nationwide dragnet is offensively farcical.
posted by crayz at 8:40 AM on June 6, 2013 [8 favorites]

He doesn't have to charge head-on and screaming his head off at public reform of the law (although I would appreciate it). He could have simply stopped exercising the power to secretly monitor every phone call you make.

President Obama appoints the Attorney General and the head of the NSA. He could direct them to send a letter to Congress asking for legislative changes.

Ironmouth's suggestion to call your member of Congress notwithstanding, few members of Congress will have the courage to vote for a bill that the heads of our law enforcement / national security agencies say would put the US in danger. If Congress were to receive cover from the heads of those agencies, it would be much more likely to act.
posted by BobbyVan at 8:41 AM on June 6, 2013 [4 favorites]

BobbyVan: " Ironmouth's suggestion to call your member of Congress notwithstanding, few members of Congress will have the courage to vote for a bill that the heads of our law enforcement / national security agencies say would put the US in danger. If Congress were to receive cover from the heads of those agencies, it would be much more likely to act."

At this point I think it's even bigger than the NSA Director or the Attorney General. Dianne Feinstein and Saxby Chambliss are out there talking about how these programs keep America safe. The Axis of Sunday Talk Show Green Room Squatters (McCain, Graham, and Lieberman/Ayotte) have always loved these programs as well. I don't see how a letter from Holder or Alexander or anyone else is going to change this.
posted by tonycpsu at 8:45 AM on June 6, 2013 [2 favorites]

cjorgensen: "Nothing on the Verizon twitter feed about this."

Well, as soon as the NSA tells them what to say, I'm sure we'll be seeing a response.
posted by zarq at 8:46 AM on June 6, 2013 [1 favorite]

President Obama appoints the Attorney General and the head of the NSA. He could direct them to send a letter to Congress asking for legislative changes.

The expanded executive powers that the Bush II administrations pursued and obtained have apparently proven too seductive to forgo, let alone dismantle, for Obama and his advisors. Whatever Congress might or might not do if prodded or sheltered.
posted by snuffleupagus at 8:47 AM on June 6, 2013

This is all disturbing, of course, but it's impressive how the second Obama administration has been tied down by all these Lilliputian scandal threads. Every week, another thread loops round a limb, and any idea of second term action on anything recedes into the distance. That includes immigration, which seemed like a slam dunk.

Here's hoping some good can come out of all this (enhanced protections for whistleblowers/leakers; more restrictions on government hoovering of citizen communications data (and more regulation of corporate control and retention of same)). Not holding my breath, but I am renewing my ACLU membership.
posted by notyou at 8:48 AM on June 6, 2013 [1 favorite]

Who you call on the telephone isn't an essential liberty.

xxx-xxx-xxxx 6:00pm, 5 min – spouse
xxx-xxx-xxxx 6:05pm, 10 min – Bunny Time Escort Service
xxx-xxx-xxxx 6:15pm, 5 min – Hilton Hotel Times Square
xxx-xxx-xxxx 6:20pm, 2 min – XYZ Car Service
xxx-xxx-xxxx 9:45pm, 2 min – XYZ Car Service
xxx-xxx-xxxx 10:05pm, 20 min – Dr. Katz, Licensed Therapist
xxx-xxx-xxxx 10:30pm, 45 min – Suicide & Crisis Hotline

But hey, it's only revealing who I'm calling on the telephone.
posted by brain_drain at 8:48 AM on June 6, 2013 [11 favorites]

Two important points to remember.

The first is that we have only discovered one way that we're being spied on. Because all the relevant court orders are secret, there's no reason to suppose that the NSA isn't getting actual content separately. At the very least, the idea that only Verizon customers are being spied on is completely ridiculous - but given that we know there is more undisclosed government surveillance going on, it's an open question as to how much more.

I have some vague idea of how the software that identifies "suspicious" activity works - by discovering "cliques", small subsets of the people under surveillance who intercommunicate with each other and with "known suspects".

I'd be very, very surprised if, once the NSA had identified a clique, there were no way for them to actually get the content. If the government and its agencies were rigourously restricting themselves to metadata only, that data center in Utah would be overprovisioned by a factor of a thousand or more.

The second point is that we know that both domestic and foreign agencies have serious budgets for "social media" - and that at least in some cases this budget goes beyond simply "monitoring" and into "influencing". What this means to you personally is that whenever you see a discussion on the internet about these issues, there is a very real possibility that some of the participants are being paid by the US or other government to influence that discussion...

There's a fine line to walk here. Clearly, suspecting everyone of being a paid commentator is paranoia. But just as clearly, blithely assuming that no one commenting on the internet is paid to do so is naïve.
posted by lupus_yonderboy at 8:48 AM on June 6, 2013 [5 favorites]

The second point is that we know that both domestic and foreign agencies have serious budgets for "social media" - and that at least in some cases this budget goes beyond simply "monitoring" and into "influencing". What this means to you personally is that whenever you see a discussion on the internet about these issues, there is a very real possibility that some of the participants are being paid by the US or other government to influence that discussion...

Thank goodness we're not being paranoid or hyperbolic or anything.
posted by dersins at 8:51 AM on June 6, 2013 [1 favorite]

It's interesting to watch the reactions. Al Gore just called the program "obscenely outrageous" and lower-level members of the Senate Intelligence Committee like Udall do their best to object, but Feinstein and Chamblis, top Dem and Rep respectively, on the committee, defend it as a "carefully done" attempt to keep the USA safe.

Feinstein: “It’s called protecting America.”

Chambliss: "To my knowledge there has not been any citizen who has registered a complaint. It has proved meritorious because we have collected significant information on bad guys, but only on bad guys, over the years."

Ironmouth: "I read the law this morning. It isn't secret."

The problem, as Senators Udall and Wyden clearly note in the links in the original post, as well as in subsequent comments, is with the Obama administration's secrecy with regard to how the law is being interpreted and applied. It's unclear to me why Ironmouth is being pedantic on this point, but I do encourage other folks who want to keep the thread informative to ignore any obviously disingenuous contributions.
posted by mediareport at 8:51 AM on June 6, 2013 [6 favorites]

I'd be very, very surprised if, once the NSA had identified a clique, there were no way for them to actually get the content. If the government and its agencies were rigourously restricting themselves to metadata only, that data center in Utah would be overprovisioned by a factor of a thousand or more.

My recollection (from coverage, mostly linked here) was that the datacenter is designed to store traffic flows, which are first subjected to traffic analysis. Once metadata identified particular data sessions as suspect, further authorization can be obtained to mine the content data. The authorization for the initial traffic analysis is impliedly taken to be sufficient to justify capturing and storing these flows.
posted by snuffleupagus at 8:52 AM on June 6, 2013 [1 favorite]

I don't really suspect any of you are paid commentators. Paid implies at least a modicum of professionalism and seriousness of purpose.
posted by notyou at 8:53 AM on June 6, 2013

A pair of Senators appear to disagree with you. Enough said.

They were the ones that voted for (or against) it. So they might just be idiots, or not being entirely genuine with their comments.
posted by gjc at 8:55 AM on June 6, 2013

dersins:

> Thank goodness we're not being paranoid or hyperbolic or anything.

Please - be polte, eh? I resent being called a paranoid.

We absolutely know for a fact that both the Chinese and Israeli governments pay people to comment on the internet. If you recall HBGary, they were apparently being paid by a US agency to write "astroturfing" software.

I don't think it's paranoid to strongly suspect that there are other programs that we haven't discovered - particularly since a universal blanket of "secret" prevents us from knowing what's going on, and would prevent our elected representatives from even telling us these things were happening if they discovered them.
posted by lupus_yonderboy at 8:57 AM on June 6, 2013 [2 favorites]

gjc: "Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.

-- Ben Franklin

The truest, most overused and misinterpreted comment, evar.

Who you call on the telephone isn't an essential liberty."

Not so much, but you do know the slippery slope argument then? And the concept of precedents?

Because, you know that would have ZERO bearing on how we got here in the first place, right?

(As an aside - I don't work for them, but I did sign it - http://act.demandprogress.org/act/patriot_verizon)
posted by Samizdata at 8:59 AM on June 6, 2013

Thank goodness we're not being paranoid or hyperbolic or anything.

I guess someone's never heard of HBGary.
posted by crayz at 9:00 AM on June 6, 2013 [1 favorite]

xxx-xxx-xxxx 6:00pm, 5 min – spouse
xxx-xxx-xxxx 6:05pm, 10 min – Bunny Time Escort Service
xxx-xxx-xxxx 6:15pm, 5 min – Hilton Hotel Times Square
xxx-xxx-xxxx 6:20pm, 2 min – XYZ Car Service
xxx-xxx-xxxx 9:45pm, 2 min – XYZ Car Service
xxx-xxx-xxxx 10:05pm, 20 min – Dr. Katz, Licensed Therapist
xxx-xxx-xxxx 10:30pm, 45 min – Suicide & Crisis Hotline

But hey, it's only revealing who I'm calling on the telephone.

Again, so what? Liberty is being allowed to do all those things. Nobody is stopping you. And nobody is stopping a private investigator from following you, or Marge at the Car Service dropping a dime on you to your spouse. If you involve other parties in your "private" activities, they aren't private anymore.
posted by gjc at 9:00 AM on June 6, 2013 [1 favorite]

It's unclear to me why Ironmouth is being pedantic on this point,

Lawyers do this. The laws themselves are not secret. When someone says "secret law" some lawyers' natural reaction is to say, "no it's not. Here's the statute."
posted by snuffleupagus at 9:01 AM on June 6, 2013

Slippery slope isn't an argument, it's a logical fallacy that hopes to stifle the other party through fear.
posted by gjc at 9:02 AM on June 6, 2013 [1 favorite]

The basic point remains clear, snuffleupagus: the manner in which the Obama administration is interpreting the law is secret. I don't see how anyone could miss that, but ok, some apparently do.
posted by mediareport at 9:03 AM on June 6, 2013 [3 favorites]

I don't really suspect any of you are paid commentators. Paid implies at least a modicum of professionalism and seriousness of purpose.

Drinky Die is brought to you by Bud Light & Clamato Chelada, hubworld.com, and the Charles Koch Foundation. Drink Responsibly.

Boehner Declines To Explain Why NSA Phone Tracking Is Necessary:

"I trust the president will explain to the American people why the administration considers this a critical tool in protecting our nation from threat of terrorist attack," Boehner said at a weekly press briefing.

"Why isn't the burden also on you to explain why this act was passed?" a reporter pressed.

"The tools were given to the administration, and it's the administration's responsibility to explain how these tools are used," Boehner added. "And I'm hopeful we'll see these answers soon."
posted by Drinky Die at 9:03 AM on June 6, 2013 [2 favorites]

If you involve other parties in your "private" activities, they aren't private anymore.

Who one fucks is (or ought to be, at least) a private activity, wouldn't you agree?
posted by BobbyVan at 9:05 AM on June 6, 2013

I guess I'm brought to you by Peets Coffee, Great Lakes Borrower Services and the Department of Education. I'm nothing but apologism for unsustainable agriculture and abusive lending.
posted by snuffleupagus at 9:07 AM on June 6, 2013 [2 favorites]

> Liberty is being allowed to do all those things.

"Liberty" is when my government, paid for with my taxes, routinely spies on everything everyone does?

Can you really not see the difference between my wife hiring a private investigator and the government spying on everyone without cause? The Constitution certainly makes that distinction, and really clearly too. That's why we used to need court orders for all this surveillance.
posted by lupus_yonderboy at 9:07 AM on June 6, 2013 [11 favorites]

Judge Who Authorized NSA Surveillance Once Ruled Obamacare Unconstitutional:

Legal scholars who disagreed with Vinson's ruling on ACA saw echoes of the Tea Party movement in the judge's language. One law professor told the New York Times that Vinson's opinion in the case gave the impression that it "was written in part as a Tea Party manifesto."
posted by Drinky Die at 9:12 AM on June 6, 2013 [2 favorites]

The basic point remains clear, snuffleupagus: the manner in which the Obama administration is interpreting the law is secret. I don't see how anyone could miss that, but ok, some apparently do.

Which is precisely what the law authorizes. The thrust of the remark is that if you want to stop the secret activity, the way to do it is to alter the enabling law, which is manifestly not secret.

Note that it wasn't my remark and I don't think it's all that important a point. It's true that the government is acting to curtail liberties and is permitted to do so in secret and that we should be disturbed by that. That this has been true for some time does not diminish the need to do something about it.
posted by snuffleupagus at 9:15 AM on June 6, 2013

If you involve other parties in your "private" activities, they aren't private anymore.

This is an astonishingly narrow conception of privacy that would justify limitless surveillance of all forms of communication.
posted by brain_drain at 9:16 AM on June 6, 2013 [1 favorite]

Who one fucks is (or ought to be, at least) a private activity, wouldn't you agree?

Sure. But who you are seen on the street with or meeting in a hotel lobby is not and never has been private.

"Liberty" is when my government, paid for with my taxes, routinely spies on everything everyone does?

No, liberty is the ability to live your live as you see fit.

Can you really not see the difference between my wife hiring a private investigator and the government spying on everyone without cause? The Constitution certainly makes that distinction, and really clearly too. That's why we used to need court orders for all this surveillance.

It makes no difference who is doing the surveillance. When you do something in public, you don't get to choose who observes you.

To which part of the constitution are you referring?

Because as far as I know, this information has been determined to not be private and does not constitute a search.

If you are saying the precedent on this is wrong, fine, that's an opinion that I might even agree with. But as it stands, it is currently not an illegal search.
posted by gjc at 9:18 AM on June 6, 2013 [1 favorite]

Judge Who Authorized NSA Surveillance Once Ruled Obamacare Unconstitutional:

This is the kind of thing that just drives me up the wall.

What kind of mental gymnastics do you have to go through (especially as a supposedly highly-educated person) to come to the conclusion that a market-based attempt to solve out-of-control healthcare costs = unconstitutional and secret government flashlights up everyones' asses = constitutional?

This country is, literally, getting stupider by the day. We should be ashamed.
posted by Benny Andajetz at 9:18 AM on June 6, 2013 [1 favorite]

If you involve other parties in your "private" activities, they aren't private anymore.

This sounds like it's conflating (or confusing) "privacy" with "privilege" (in the evidentiary sense). Pardon my coarseness, but fucking is generally private.
posted by snuffleupagus at 9:19 AM on June 6, 2013

If you involve other parties in your "private" activities, they aren't private anymore.

So there's no such thing as a private conversation, or a private business transaction, or any private activity at all that doesn't involve locking yourself in a room and not communicating with anyone or anything outside of it?

Your definition of "privacy" blows.
posted by Holy Zarquon's Singing Fish at 9:23 AM on June 6, 2013 [14 favorites]

When you do something in public, you don't get to choose who observes you.

This is an entirely different criterion than whether or not you "involve other people."
posted by snuffleupagus at 9:23 AM on June 6, 2013 [2 favorites]

And I think it's splitting the wrong hair. The question is whether there's a legitimate expectation of privacy. The where and who is part of that analysis.
posted by snuffleupagus at 9:25 AM on June 6, 2013 [1 favorite]

Here's an example of a secret law: "Wyden (D-Oregon) says that powers they grant the government on their face, the government applies a far broader legal interpretation — an interpretation that the government has conveniently classified, so it cannot be publicly assessed or challenged."

So even though the text of the law is public, the much broader interpretation, which actually says HOW the law operates, is classified.

Hope that's clear to everyone!

gjc:

> It makes no difference who is doing the surveillance. When you do something in public, you don't get to choose who observes you.

Your idea of "public" seems to include my making a phone call in the privacy of my house to someone else.

Based on your reasoning, the government should be able to actually listen to everyone's calls without any sort of warrant, yes?

> To which part of the constitution are you referring?

To the Fourth Amendment: "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."

The Fourth Amendment "guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it."

The Fourth Amendment is why, up until very recently, the government required a court order to monitor your calls. Unfortunately, the last two Administrations have interpreted the PATRIOT ACT as suspending the Fourth Amendment "for the duration of the emergency" which is why believe they can ask for everyone's records, even though no one would possibly consider that "limited in scope".
posted by lupus_yonderboy at 9:30 AM on June 6, 2013 [4 favorites]

Here's a question: If these secret programs are stopping so many terrorist plots, as their proponents claim, where are the prosecutions and convictions? If they aren't happening in open courts, the next most likely venue is a torture cell or a shallow grave.
posted by compartment at 9:39 AM on June 6, 2013

wiki has some good stats about terror trial cases that have taken place. I believe the data is used to devise a chronological construct that places people of interest to a 'sence of place' with-in investigations, this is why all this stuff is collected, it is just records and collation.
posted by clavdivs at 9:42 AM on June 6, 2013

the next most likely venue is a torture cell or a shallow grave.

torture cell:shallow grave::CIA black site:hellfire crater
posted by snuffleupagus at 9:45 AM on June 6, 2013

"...the Federal government is an entirely different animal today than the government that existed at the time of the adoption of the Bill of Rights. There's an infinite number of bureaus, all of whom regulate the life of the citizen in some respect some of the time....The remedy that is proposed by the Bill of Rights for any interference by the government with the life of the citizen is that he should go to law. Now anybody who's ever gone to law knows that this is an experience that you don't want to have more than once in your life, and you don't want to have it then if you can possibly avoid it. So this remedy is, for all practical purposes, useless....So, you have a totally new relationship that has developed between the individual and the central government without any comparable alterations in the remedies that are available to him." -- Robert Hutchins
posted by seemoreglass at 9:45 AM on June 6, 2013 [2 favorites]

gjc: "Slippery slope isn't an argument, it's a logical fallacy that hopes to stifle the other party through fear."

Yeah, shouldn't have used that term at all.

Would gradual erosion work better? Or perhaps slow infection of misuse of power?

Because, God knows, the government never pushes it and ALWAYS stays within the boundaries of its bailiwick voluntarily right?
posted by Samizdata at 9:48 AM on June 6, 2013

"Nothing on the Verizon twitter feed about this."

There is now. A link to a brief blog post. http://publicpolicy.verizon.com/blog/entry/from-the-desk-of-randy-milch

I'll save you the trouble of reading it. Recap: 1. We can't comment on the story. 2. If we were doing it - and we're not saying we are-, it would be because the government made us.
posted by NorthernLite at 9:49 AM on June 6, 2013

In earlier declassified documents, the NSA noted they had asked for an ok for domestic spying prior to 9/11....then, with the Patriot Act, they seem to have gone full bore...Earlier, NSA was not authorized to do domestic surveillance without going for ok via FISA court. We were then told when it became apparent that they did not use FISA that they needed to fast track what they were doing and could not wait for ok via FISA. Now it is public knowledge that they are building a huge new place out West because immense data they have on hand.
Now we learn--and not from American journalists here but from The Guardian, the paper that first published Wiki leaks--that domestic tapping is all over the place, sans FISA.

1. Has Congress authorized this?
2. Is there any oversight that will challenge this?
3. If it takes place with Verizon, does it also happen to other companies, and, if not, should we switch from Verizon?
4. If a phone company (ies) allow for domestic spying, then can we assume that all companies having to to do with the net also allow govt intrusion without court order?
5. Who gave permission for this: Holder, Obama, etc?
posted by Postroad at 9:49 AM on June 6, 2013 [1 favorite]

Postroad: "In earlier declassified documents, the NSA noted they had asked for an ok for domestic spying prior to 9/11....then, with the Patriot Act, they seem to have gone full bore...Earlier, NSA was not authorized to do domestic surveillance without going for ok via FISA court. We were then told when it became apparent that they did not use FISA that they needed to fast track what they were doing and could not wait for ok via FISA. Now it is public knowledge that they are building a huge new place out West because immense data they have on hand.
Now we learn--and not from American journalists here but from The Guardian, the paper that first published Wiki leaks--that domestic tapping is all over the place, sans FISA.

1. Has Congress authorized this?
2. Is there any oversight that will challenge this?
3. If it takes place with Verizon, does it also happen to other companies, and, if not, should we switch from Verizon?
4. If a phone company (ies) allow for domestic spying, then can we assume that all companies having to to do with the net also allow govt intrusion without court order?
5. Who gave permission for this: Holder, Obama, etc?"

Permission? Oversight? According to some people around here that should NEVER be necessary, since the government never abuses their power.
posted by Samizdata at 9:53 AM on June 6, 2013

I'll save you the trouble of reading it. Recap: 1. We can't comment on the story. 2. If we were doing it - and we're not saying we are-, it would be because the government made us.

from the desk of:

Clarence Lyingpants
Director, Office of Weasel Words
Department of Obfuscation
posted by Benny Andajetz at 9:54 AM on June 6, 2013

If you involve other parties in your "private" activities, they aren't private anymore.

So sex is by its very nature never private? Ridiculous.

[On review, sorry I'm slow. The point's been made.]
posted by saulgoodman at 9:56 AM on June 6, 2013

saulgoodman: " If you involve other parties in your "private" activities, they aren't private anymore.

So sex is by its very nature never private? Ridiculous."

starts to figure out the neighbors' romantic schedule and checks out the space on his SD card
posted by Samizdata at 9:58 AM on June 6, 2013

Eh, Verizon has no choice at all in this matter. If they disobey a court order, people will fairly soon get hauled off to jail.

In the early days at Google we had several talks in small groups with Eric Schmidt on these issues (what a shame that he seems to have subsequently gone to the dark side).

He said that protecting the privacy of customers was Google's second priority - their first priority was making sure that their employees didn't end up in jail. As such, he said that the company would fight as hard as legally possible against any such requests, but they would not engage in civil disobedience by explicitly refusing to obey lawful orders.

I'm hardly an apologist for corporations, but it seems to me that you cannot expect a corporation to flout the law on a matter of principle.
posted by lupus_yonderboy at 9:59 AM on June 6, 2013 [1 favorite]

And, therein, lies the rub. Shouldn't we be worried about such vagueness?

do you worry about handing your credit card to some 19-year-old at california pizza kitchen?

we worry about SOME vagueness because there's social rewards for such worry; but worrying about your routine pissing away of your own 'right to privacy' is Simply Not Done. so it's (almost always) simply not done.

threads like this are a lot less exciting after the first couple hundred heartfelt outpourings of Favorite-trolling boilerplate rage/snark, but it's important to give over to logic and planning at some point.
posted by waxbanks at 9:59 AM on June 6, 2013

The chairwoman of the US Senate Intelligence committee has said that the state has been collecting the telephone records of millions of US Verizon customers since 2006, and the order is a three-month renewal of a continuing practice.

The collection of records was “on an ongoing daily basis,” beginning on April 25, 2013 and ending July 19, 2013, Dianne Feinstein, a Democratic Senator from California confirmed to reporters on Capitol Hill on Thursday. However, the practice may have been habitual for seven years prior to its exposure.

"As far as I know, this is the exact three-month renewal of what has been the case for the past seven years. This renewal is carried out by the [foreign intelligence surveillance] court under the business records section of the Patriot Act. Therefore, it is lawful. It has been briefed to Congress," she told reporters.
posted by Postroad at 10:00 AM on June 6, 2013

Reuters: Republican chairman of House Intelligence Committee says phone records stopped "significant" terrorist attack within recent years
posted by BobbyVan at 10:00 AM on June 6, 2013 [1 favorite]

lupus_yonderboy: "Eh, Verizon has no choice at all in this matter. If they disobey a court order, people will fairly soon get hauled off to jail.

In the early days at Google we had several talks in small groups with Eric Schmidt on these issues (what a shame that he seems to have subsequently gone to the dark side).

He said that protecting the privacy of customers was Google's second priority - their first priority was making sure that their employees didn't end up in jail. As such, he said that the company would fight as hard as legally possible against any such requests, but they would not engage in civil disobedience by explicitly refusing to obey lawful orders.

I'm hardly an apologist for corporations, but it seems to me that you cannot expect a corporation to flout the law on a matter of principle."

Not expecting them to flout the law. I am, however, expecting them to CHALLENGE the law. You know, court, it's for rights...
posted by Samizdata at 10:00 AM on June 6, 2013 [1 favorite]

My bad. posted part of Feinstein statement that has already been posted. Let me note though that the statement that the govt (NSA) goes through FISA is clearly nonsense. If all calls thorugh Verizon monitored, how do they go through a FISA court? The p;urpose of FISA court is to see if a call is important enough to b e monitored.
posted by Postroad at 10:03 AM on June 6, 2013

waxbanks: " And, therein, lies the rub. Shouldn't we be worried about such vagueness?
do you worry about handing your credit card to some 19-year-old at california pizza kitchen?

we worry about SOME vagueness because there's social rewards for such worry; but worrying about your routine pissing away of your own 'right to privacy' is Simply Not Done. so it's (almost always) simply not done.

threads like this are a lot less exciting after the first couple hundred heartfelt outpourings of Favorite-trolling boilerplate rage/snark, but it's important to give over to logic and planning at some point."

Actually, yeah, I do. I keep an eye on said clerk to make sure he doesn't jot down the card number and such details. (Although I have never eaten at California Pizza Kitchen so I don't know how you pay there.)

The main point I meant to make was that the government has a lot more legal analysts than I do. I expect a better effort to block loopholes they can abuse. They sure seem to work hard on blocking loopholes the citizenry can abuse. Am I wrong in expecting the same diligence on both sides of the fence?
posted by Samizdata at 10:04 AM on June 6, 2013

> do you worry about handing your credit card to some 19-year-old at california pizza kitchen?

Two days ago I got a call from Chase Visa, asking me if we'd gone to Six Flags or made purchases at the Gap - both in California (we live in New York City). I said I did not, and they cancelled all the charges (there were a few more) without question. I probably wouldn't have even noticed for a couple of weeks - particularly since both our cards were right there in our house.

If for whatever reason the company had been sticky about it, I could easily have gone to small claims court and for a few hours and a $20 filing fee, gotten my money back. But the companies are very cooperative - because they know that the whole reason that credit cards work is precisely because you can hand 'em around without fear.

That's why we don't care about giving out credit cards - because the rules are in our favor and we have easy access to remedies. The same is absolutely not true if the government takes our data secretly...
posted by lupus_yonderboy at 10:05 AM on June 6, 2013 [4 favorites]

Many here will disagree with what I'm about to say

For anyone considering Vibrissae's idea, David Brin (who I'm now only 99% sure doesn't go by the pseudonym "Vibrissae") wrote "The Transparent Society" to defend the proposition that ubiquitous surveillance is now inevitable and the best we can do is make sure that it isn't restricted to a ruling caste. The introductory chapter is free online.
posted by roystgnr at 10:08 AM on June 6, 2013 [3 favorites]

> To my knowledge, no one has ever asserted that the 4th Amendment can be suspended.

Well, I find over two million hits containing (mostly) people suggesting that this so you didn't look very hard.

But I think you mean, "No lawmaker has ever asserted..." Of course, no elected official is going to say, "Hey! We turned off the Bill of Rights, let's celebrate!"

But Title II of the PATRIOT Act seems to directly conflict with Fourth Amendment, as do Titles IV(*) and V.

(* - The reason IV is problematic is that it seems that the government's interpretation of this extends the very great powers that they have when you cross a border to anywhere within 100 miles of a border - which includes the coast - thus demolishing protection for about a third of the humans residing in the USA, including me.)
posted by lupus_yonderboy at 10:13 AM on June 6, 2013

What I think is interesting in this thread is the disconnect between people who basically assumed this was true and those who either weren't paying much attention or engaged in a lot of wishful thinking. I mean for me the only surprise is that there were people actually didn't think this was happening.

And that was the main (apparently fictional) plank that attracted me to Obama in the first place. -- Samizdata

Looking back though, who would you have supported in the primaries? Hillary Clinton? Maybe she'd have been better on civil liberties, but it's not like she's been an outspoken critic of Obama or anything. We have no information.

Edwards? LOL, what a clusterfuck that would have been. We really dodged a bullet there.

Richardson? There's nothing to suggest he cares about civil liberties at all, people think he was involved in the persecution of Wen Ho Lee as the energy secretary (in charge of the nuclear program)

Unfortunately, as Obama showed - you can just lie about what you plan to do on civil liberties and then change your mind once elected. It actually was an important issue for dem primary voters during the election, due to all the abuses under bush and he never would have won the primary if he'd told the truth during the primary campaign.

____

Moreover, there is no such thing as a secret law. There may be laws that allow people to do things in secret, but if it's secret, it's not part of the law. -- one more dead town's last parade

It's their interpretation of the law, which actually determines how it works in practice, which is secret.

BTW, I will bet $100 that the source of the leak is a GOP staffer on the House Intelligence Committee. They're hoping to get you all to ignore all that they're doing and vote for them. -- Ironmouth

Well, we'll never know. I doubt it though since the republicans support this stuff anyway, it's not going to 'help' them, and why would they leak it to the Guardian? It also doesn't many sense that they would leak about Verizon in particular, since the other phone companies are almost certainly involved. It probably came from someone in the company.

Also, this comment really illustrates how partisanship warps how people think about 'right' and 'wrong'. If it did come from the GOP, it would have been a good thing for them to have done. Giving people accurate, truthful, information about things the other party is doing that people might not like is how politics is supposed to work.

People are obsessed with partisanship view the other side getting votes as an intrinsic moral wrong and thus anything they do, good or bad that might help them get votes is viewed as being wrong somehow.

(of course, the GOP has 'leaked' fraudulent and incorrect information about Bengazi and the F&F scandal and they have been mostly totally disingenuous with their leaks in general. So I'm not saying that GOP is doing any good, just that if this came from them, it would be. But I don't think it did)

Let's be honest. No one complaining will suffer a personal harm because of this. They will not lose money, their wife will not find out their affair, and they will still get that job.
-- Ironmouth

Tell that to David Petraeus, which was a clear example of mis-use of surveillance, as their messages had nothing to do with Paula Broadwell's alleged "cyberbullying" - but the FBI. My guess is that the FBI agents just had a prurient interest in what as going on with these people.

Beyond that, though it's not just a question of some kind of financial loss, people value privacy purely for it's on value. You won't lose money or not get a job if someone puts a camera in your shower and films you naked, yet most people would be extremely opposed to an intrusion like that. Privacy itself is something people value and losing privacy is itself a problem.

One of the giant frustrations in these threads is the outrage about stuff that has been known for years by anyone who wants to look. .../end going Bullworth. -- Ironmouth

Lol, I'll bet $100 you haven't even seen that movie. Although it's hilarious to see you spouting the same nonsense you always do and then act like it's some kind of fearless truth-telling all of a sudden.

Not everyone is surprised. The only people in this thread who are 'surprised' at this point are the ones who believed in and trusted Obama and dismissed people were concerned as being paranoid. Empath in particular is someone who used to agree with you dude.

Wait, ironmouth spends every election cycle going off on third party advocates for not voting tactically and now berates us for voting for shitty compromise candidates? -- absalom

What? You expected him to be logically consistent or something?
___

What can the typical phone user do with encryption to make it difficult or impossible to be listened to?
On a typical phone making landline/cell calls? Nothing. -- Jimbob

If you have a smartphone there may be apps you can get that will let you have an encrypted voice conversation with someone, and certainly encrypted text chat. I don't know what they are, though.

The NSA doesn't exist, right? -- Annika Cicada

They should probably get rid of their website... although looking at their website it's now the "NSA/CSS"? National Security Agency / Central Security Service? Not sure what's going on there...

___

It speaks volumes that the two most recent terrorist acts in the Western world (Boston Marathon bombing and the murder of Drummer Rigby) were perpetrated by individuals known to the security services*. They clearly have plenty of data, just insufficient capability to actually act on it. I think only a Stasi/KGB level of surveillance could prevent this happening in future. -- longbaugh

Well the thing is, though those cases were compared to "normal crime" relatively minor. People get knifed to death in the UK all the time, there are about 700 murders a year (1.2 murders per 100k citizens) In the US there are about 4.8/100k murders - and with our larger population that comes out to more then 14.5k people killed every year. It doesn't necessarily make much sense to fixate on these crimes compared to other ones. The Boston bombings, for example, were far less horrific then the recent mass shootings in aurora and Newton, yet no one wants to do anything about gun availability.

When one in three people you know is an informant and the NSA (or other government TLA) has a stoppered jar containing a cloth doused in your sweat on it so that you can be scent-tracked by very big; very nasty dogs then you can say this. It's certainly more than we would like, but in no way is the domestic surveillance close to that of the Stasi. They wrote (and then shredded) the book on this.longbaugh

There was a recent supreme court decision allowing DNA samples to be taken from anyone they arrest. Also, they don't need 1 in 3 people to be informants if they can get signals intelligence on everyone. The amount of information the government could theoretically get by tapping every phone and internet connection is far greater then they could get by having tons of informants (since they are not all going to be reliable)

Also, the whole idea that because something is not exactly the same as something else, they can't be compared is ridiculous. The US today and cold war East Germany were different places, with access to different levels of technology.

Also, and obviously, the goal is to prevent things from getting to the GDR state. You don't sit around and say "Welp, things aren't as bad as East Germany so I might as well just sit on my ass until they are". If a fire starts, you try to stomp it out. You don't sit around and wait for great conflagration before acting.
posted by delmoi at 10:14 AM on June 6, 2013 [4 favorites]

delmoi: "Also, and obviously, the goal is to prevent things from getting to the GDR state. You don't sit around and say "Welp, things aren't as bad as East Germany so I might as well just sit on my ass until they are". If a fire starts, you try to stomp it out. You don't sit around and wait for great conflagration before acting."

Which is the point I have been trying to make.

And, yeah, there wasn't that much of a choice during Obama's first election, but the primary reason I voted for him was his claims of increased transparency, not the lack of other options. (Well, that, and I though the idea of the first black president was really cool and said something important.)
posted by Samizdata at 10:18 AM on June 6, 2013

The current FISA process is the legislative processes solution to concerns that arose when it came to light the government had been engaged "in an enormous amount of unauthorized spying during the 1960s and early 1970s." Yet now it's a secret court that simply legitimizes even more spying.

It's gotten so bad in Washington that every popular push for reform gets captured and turned into a round of new legislative opportunities for furthering the aims of the same interests that triggered the popular outcry to start with.

I don't mean to feed into the cynicism with this observation, but how are we supposed to route around the perverse incentives that drive the system nowadays? We need massive cultural shift and political mobilization or it will just keep being business as usual, with the same interests that fund the candidates funding the lobbyists who draft their legislation. I don't see how we get there until public awareness and engagement improves.
posted by saulgoodman at 10:27 AM on June 6, 2013 [1 favorite]

Who you call on the telephone isn't an essential liberty.

and

billing records are not protected constitutionally.

For the government to review my phone records while I am in the process of investigating defenses for a criminal defendant, whether they're looking for further evidence against my client or for any other reason related to my client, is a transparent violation of the right to counsel. I don't know that it's ever been tested, but it's not ambiguous. (Seriously, can you imagine prosecutors seizing the phone records of the defense lawyers they're opposing, to get a head start on the defense or see if there's any witnesses they missed? They would if they could, but it's not happening.)

Or ... is it happening? We can't know. Even the secret court order itself is forbidden by law from alluding to the purpose the information might be used for. (That's 50 USC 1861(c)(2)(E).) Statements like "The Tsarnev investigation will use regular warrants" are statements of pure, blind faith. Two federal investigations will proceed side-by-side, one will use regular warrants and one will not, and no one (inside the investigations or out) will ever know for sure what information flowed between them.

---

But to step back (and here I want to drop the tit-for-tat) --

Ultimately this legal argument about exactly when phone call metadata can be constitutionally relevant is missing the forest for the trees. If a police officer wanders through 50 million homes without finding anything, then 50 million important constitutional violations have occurred. The harm is the privacy invasion itself, and if we as citizens reasonably expect that our phone records will be private, the Fourth Amendment should protect that.

Mostly it doesn't, though, at the moment. Why not?

As far as I can tell, there's been an important, scary, shift in the idea of reasonable expectations of privacy here. In Smith v. Maryland, when the Supreme Court established this idea that who you call is not private information, the phone company had voluntarily handed over that information. The Court reasoned that the caller voluntarily gave the information to the phone company knowing it would record that information and use it for business purposes. "In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed."

So the phone company is basically a third person you're bringing into the conversation -- and the three of you assume the risk that any of you might tell the police what occurred. But then we have this shift where the phone company can be compelled to repeat what it knows about the conversation, as long as some relatively low statutory standard is met. And then we have this case, where no showing is necessary at all: the government merely has to point out that phone records in general are places where evidence of a crime might be found, and it can compel the phone company to hand over information about everyone who uses the phone.

The defense that there-is-no-expectation-of-privacy-in-phone-records rings hollow here. It's gone too far. As between me, my correspondent, and the business that relays our private communications (whether it's a phone company, a bike courier, or the Memail server), I expect that there is a circle of privacy: our communications will only be revealed if one of us voluntarily shares, or if the government shows a reasonable basis for an involuntary search and seizure. Compelling one of us to permit a seizure should require particular evidence.

This may not be how the Fourth Amendment is currently applied, but it's how it should be applied. And since "reasonable expectation of privacy" is an evolving standard, hopefully it will be applied that way in the future.
posted by jhc at 10:28 AM on June 6, 2013 [5 favorites]

Oh, and an interesting point that just came up when I was reading about various implementations of voice traffic and what "metadata" really is.

"Content" means exactly that - the original audio recording. Any information derived from that is and will always be stored as metadata.

Look at, say, Google Voice. When they receive a phone message, they automatically perform speech-to-text transformation - and that text is stored as metadata. (The quality is quite variable, but gets better every day...)

I'm not suggesting that today, Verizon is doing this for every phone call - in fact, I'd be very surprised if this were the case - but I'd also be surprised this wasn't completely routine twenty years from now.

The takeaway here is "Don't assume that the metadata doesn't contain enough information to completely reconstruct the content." That might be true today but it won't be in a generation's time.
posted by lupus_yonderboy at 10:28 AM on June 6, 2013 [2 favorites]

I don't mean to feed into the cynicism with this observation, but how are we supposed to route around the perverse incentives that drive the system nowadays?

You're not. Look, the top dem and the top republican both offered defenses of this activity. The Patriot Act passed the senate 99-1.

For all of our kvetching and carrying on, the people - the electorate - apparently loves this stuff.
posted by Pogo_Fuzzybutt at 10:30 AM on June 6, 2013

4th amendment? well way back...just when Bush taking office, NSA suggested that such amendments might need reconsideration
posted by Postroad at 10:32 AM on June 6, 2013

And to build on this:

Look at, say, Google Voice. When they receive a phone message, they automatically perform speech-to-text transformation - and that text is stored as metadata. (The quality is quite variable, but gets better every day...)

I wonder if Google Voice does this with the "record my calls" feature they offer as well; allow you to grab a transcription.

_{Call Options (?) Enable Recording (4), Switch (*) and Conferencing options on inbound calls}
posted by tilde at 10:35 AM on June 6, 2013

Blaming Obama may or may not be justified, but it doesn't matter because the only power to fix this is held in the legislature. Executive orders are pretty useless since they can just be ignored or amended by the next executive. Talking down Obama's political legacy might be justified and gratifying, especially assuming he was informed and on-board with this specific activity as opposed to this just being the kind of low-profile thing staffers might have described as a routine bureaucratic approval, but it's not going to bring a whole lot of real constructive pressure to bear on the problem.

Feinstein, on the other hand, should get raked over the coals until she and others in congress agree to do a wholesale rethink of the expanded surveillance powers granted under the Patriot Act and through court interpretations over the last couple of decades and then really embrace the public sentiment on the issue when developing their legislation. Even practices like extraordinary rendition, initiated under Clinton, shouldn't be off limits. We don't need to change our way of life to keep us safe from nuisance threats.
posted by saulgoodman at 10:37 AM on June 6, 2013 [1 favorite]

And can you imagine what would happen if we had to register our cars with the government? They would be monitoring all our movements before you could blink.

You're trying to be ironic, but you're literally correct.

"Regardless of whether there is a match, the system stores the image, license plate number, date, time, and GPS location of every passing vehicle. The newest systems can process one plate per second, or nearly 30,000 plates for every eight-hour shift."
posted by roystgnr at 10:40 AM on June 6, 2013 [1 favorite]

> I don't see how we get there until public awareness and engagement improves.

A decade ago I was touring Guatemala and one of the people where we were staying was an older woman who was strongly committed to environmentalism. She went on and on about the actions that the environmental movement had accomplished - at a certain point I had to say, "You understand that the last decade or two has been a disaster for the environment?"

She replied, "That's true, but look how much awareness of the problem has increased!"

Awareness is worthless. Engagement only has value inasmuch as our elected representatives choose to act on our engagement.

And honestly, government surveillance is at the top of very few people's lists. One of the reasons that the destruction of the middle class is just "the gift that keeps on giving" for both sides is that if you're worried about feeding your children, the question of whether or not the government is surveilling everyone is completely academic.

I guarantee you - the next time we have an election, anyone on Metafilter even suggesting that we might consider voting for a third-party (even in a non-swing state) because of actions like this one will be mocked and reviled.

In the last Presidential elections, despite at least two perfectly viable third-party candidates, third parties got a tiny portion of the vote.

Both political parties are united on this issue of universal surveillance - there is really no light between them - and the substance of the next election will reflect this. I don't think anyone thinks of this issue as any sort of vote-getter - the only reason that a lawmaker might oppose this is because of a personal conscience, but both D and especially R have been very effective at eliminating people of conscience.

> We don't need to change our way of life to keep us safe from nuisance threats.

That horse left the barn a decade ago: we already changed our way of life. We need to figure out a way to change it back. Good luck.
posted by lupus_yonderboy at 10:40 AM on June 6, 2013 [3 favorites]

The Fourth Amendment is why, up until very recently, the government required a court order to monitor your calls. Unfortunately, the last two Administrations have interpreted the PATRIOT ACT as suspending the Fourth Amendment "for the duration of the emergency" which is why believe they can ask for everyone's records, even though no one would possibly consider that "limited in scope".

Then we are arguing two different things. The NSA is not, as far as we know, asking for phone taps. They are asking for phone records. Which the courts have ruled are not an unresonable search.

jhc makes a good point about the voluntariness of the phone company's sharing of the records. It's not a violation for the police to ask and the phone company to freely comply, and I guess it hasn't been litigated whether the police can force the issue.

Regardless, if I read the story correctly, it is moot, since this is a kind of warrant. I have more of a privacy/liberty/freedom problem with the idea of blanket warrants more than the technicalities of just how not-private phone records are. If that's what the point is, sure, I agree. Blanket warrants like this are not in the spirit of the law.
posted by gjc at 10:44 AM on June 6, 2013

If this is generalized continuing collection, it should be prohibited and the business records should not allow for collection of all the phone call records. If it were related directly to the Tsarnev investigation looking to see if there was a larger conspiracy that would be fine for a 3 month period. But standard collection of this data is too much.

However, it is likely perfectly constitutional. There's no expectation of privacy when you are giving the data to a third party. The records aren't even in your possession.

Imagine a letter. It is private because it is between you and the recipient. But your paying someone for a series of overseas stamps is not. The phone records are similar to that.

This means a legislative fix, bounding the legal authorization to seek the data is needed. But there is no doubt that call records are

Can you really not see the difference between my wife hiring a private investigator and the government spying on everyone without cause? The Constitution certainly makes that distinction, and really clearly too. That's why we used to need court orders for all this surveillance.

We need to get our terms clear. This is not surveillance. This is looking at past records. Surveillance is actively watching the person in real-time.

The Fourth Amendment is why, up until very recently, the government required a court order to monitor your calls

Phone calls are not being monitored. They are looking at past phone records as to who was called by whom. This is not real-time monitoring.
posted by Ironmouth at 10:45 AM on June 6, 2013

My hopes are more with electoral process and campaign finance reform than with third-parties. I definitely wouldn't mock anyone supporting 3rd party candidates in elections where they stand a chance, but it takes broad coalitions to move anything in our system anymore, and even among third-party candidates (e.g. Ross Perot, Forbes, etc.) money still seems to trump popular sentiment.

"That horse left the barn a decade ago: we already changed our way of life."
Good point. I should have written "didn't have to..."
posted by saulgoodman at 10:47 AM on June 6, 2013

The top rated comment on the hacker news thread is very good. The poster is Dutch and reports on surveillance activities ongoing in the Netherlands. Apparently they have the tech with only 17 million population to record and store everything that is recordable. Now for network analyses the problems are combinatorial so the same thing for the NSA isn't 19 times bigger it is 19! or 120 quadrillion time bigger. So what the Dutch are doing is not technically feasible here. Yet. That is definitely the way that things are headed though. They have better trains and bike paths and coffee shops but their privacy is shit. Every place has its positives and its negatives.
posted by bukvich at 10:49 AM on June 6, 2013

However, it is likely perfectly constitutional. There's no expectation of privacy when you are giving the data to a third party. The records aren't even in your possession.

The third party holding the records has the expectation of privacy too. If you send me a letter and I hand it to someone else, that doesn't mean the third party has no rights to keep it private if they choose to.
posted by Drinky Die at 10:50 AM on June 6, 2013

I am a bit surprised the Senators were willing to come out so boldly behind this.
posted by smackfu at 10:56 AM on June 6, 2013

> There's no expectation of privacy when you are giving the data to a third party.

So why can't Verizon just sell my phone records to anyone, then?

> Phone calls are not being monitored.

How you can say such things baffles me. At least some fraction of phone calls are being monitored - through legal means. While of course we have no idea how many phone calls are being clandestinely monitored, the FISA Bill that Candidate Obama signed explicitly exonerated the carriers from any legal consequences of illegal monitoring. Why would they bother to do this if there weren't illegal monitoring going on?

What exactly do you think the Utah Data Center is doing? They are going to be storing a thousand million million gigabytes of data or more - yes, that's a million million million million bytes of data. Standard voice data, compressed, is 8 thousand bytes a second. Were this data center entirely devoted to storing voice data, it could store 4 billion years of it.

The point is that you have absolutely no idea whether what you are saying is true or not - none at all. Anything you say is the purest speculation, and acting as if you have some conduit to the (top secret) truth that the rest of us mortals have is hubris.
posted by lupus_yonderboy at 10:58 AM on June 6, 2013 [3 favorites]

However, it is likely perfectly constitutional. There's no expectation of privacy when you are giving the data to a third party. The records aren't even in your possession.

The third party holding the records has the expectation of privacy too. If you send me a letter and I hand it to someone else, that doesn't mean the third party has no rights to keep it private if they choose to.

Actually, no. The fourth amendment is based on a reasonable expectation of privacy. You have no reasonable expectation that a third party won't hand things over to anyone.
posted by Ironmouth at 10:59 AM on June 6, 2013

How you can say such things baffles me. At least some fraction of phone calls are being monitored

the content of the calls themselves are not being monitored in this case. They do not have a wiretap order.
posted by Ironmouth at 11:00 AM on June 6, 2013

This is not real-time monitoring.

We need to get our terms clear. The government *claims* this is not real-time monitoring. No one is able to evaluate or discuss this claim in a meaningful way, since the administration insists that any and all of its decisions about how the program operates are.......secret.
posted by mediareport at 11:01 AM on June 6, 2013 [3 favorites]

You have no reasonable expectation that a third party won't hand things over to anyone.

I didn't suggest I did. I am talking about the rights of the third party holding the letter.
posted by Drinky Die at 11:02 AM on June 6, 2013

Arguing over definitions of terms is the best kind of arguing, right?
posted by smackfu at 11:03 AM on June 6, 2013

I am a bit surprised the Senators were willing to come out so boldly behind this.

Because they have access to the polling and know exactly how many people have complained to them about it. They also know that Obama's counter-terrorism policies enjoy healthy polling support in this country.
posted by Ironmouth at 11:04 AM on June 6, 2013

Also, if you saw Feinstein talk an hour ago, she said that the government can request "content" if something about the calling data piques their interest.

So you are being recorded, and the only thing stopping the government from listening to those recordings whenever they feel like it is a court that has already decided it's no problem at all for the government to get lists of every phone call made or received by every person in the United States, and has re-affirmed that decision every three months for the last seven years.

I feel safe!
posted by Holy Zarquon's Singing Fish at 11:06 AM on June 6, 2013

Author of Patriot Act: FBI’s FISA Order is Abuse of Patriot Act

Washington, Jun 6 - Congressman Jim Sensenbrenner (R-WI) today sent a letter to Attorney General Eric Holder regarding the Federal Bureau of Investigation’s application for a top secret court order to collect the phone records of essentially every call made by millions of Verizon customers.

Congressman Sensenbrenner: “As the author of the Patriot Act, I am extremely troubled by the FBI’s interpretation of this legislation. While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. The Bureau’s broad application for phone records was made under the so-called business records provision of the Act. I do not believe the broadly drafted FISA order is consistent with the requirements of the Patriot Act. Seizing phone records of millions of innocent people is excessive and un-American.”

posted by BobbyVan at 11:06 AM on June 6, 2013 [5 favorites]

Because they have access to the polling and know exactly how many people have complained to them about it.

No, it's because they can disingenuously claim - in the face of mountains of evidence to the contrary, from hundreds if not tens of thousands of people posting about this online, that since no citizens have expressed any concerns to them directly via email or post, it's not something about which there are legitimate and serious concerns.

You are being such a pedant here, Ironmouth. You're not doing your side of this argument any service.
posted by mediareport at 11:08 AM on June 6, 2013

> Now for network analyses the problems are combinatorial so the same thing for the NSA isn't 19 times bigger it is 19! or 120 quadrillion time bigger.

SO TOTALLY WRONG.

Were your argument right, then the size of the base problem on 17 million individuals in Holland would be 14 million factorial - or about 10 to the power of 115,534,629.

By comparison, the smallest time unit that has any physical sense is about 10**-44 seconds and there are certainly less than 10**100 elementary particles in the universe. So if each particle in each smallest time unit were in fact a complete separate universe, and each particle in each time unit in those gazillion subuniverses were also a subuniverse, and each particle in those sub-sub-universes was a huge computer that could evaluate one position in one least time interval...

You'd still come nowhere near being able to do all that computation. No, not if you added 10 more chains of "each particle is a full subuniverse".
posted by lupus_yonderboy at 11:08 AM on June 6, 2013 [1 favorite]

John Yoo: Verizon Controversy Not As Bad As It Seems

We shouldn't expect any measured response to the Obama Administration's program from the usual libertarian critics, should we? When news broke in 2006 that the National Security Agency had been collecting phone call metadata, Senate Democrats called for President Bush's censure or perhaps impeachment. New York Times and Washington Post editorial writers attacked Bush as a violator of the Constitution. Academic leaders like Harold Koh, Dean of the Yale Law School, called it "quite shocking" and claimed that it was implemented without judicial approval. Senator Patrick Leahy had a hearing where he yelled, "are you telling me that tens of millions of Americans are involved with al Qaeda?"

I suspect that we will hear nary a peep from these sources about Obama, proving yet again that the criticism of the Bush anti-terrorism programs was motivated by partisan politics, not enduring principle. Unfortunately, however, the program will received heightened scrutiny because of the Obama Administration's serious mistakes on its IRS investigations into conservative groups and Justice Department surveillance of journalists. The Obama administration's destruction of the American people's trust in government's ability to run its core functions will harm our government's ability to carry out its duty to protect the nation.

posted by BobbyVan at 11:09 AM on June 6, 2013 [1 favorite]

You have no reasonable expectation that a third party won't hand things over to anyone.

I didn't suggest I did. I am talking about the rights of the third party holding the letter.

Arguing over definitions of terms is the best kind of arguing, right?

We are arguing about the legal basis for Fourth Amendment Protection. Literally, the test is whether or not the person has a reasonable expectation of privacy in the situation. When one hands over information about something to a third party, it is generally considered that the person has no reasonable expectation of privacy and therefore the information is not protected by the Fourth Amendment's warrant requirement.

Since Smith v. Maryland, a pen register isn't a search under the fourth amendment. This is even weaker than a pen register, its a retrospective look at calls, not real-time monitoring.

"Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed - a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers." United States v. New York Tel. Co., 434 U.S. 159, 167 (1977). [442 U.S. 735, 742]

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.

The numbers you dial on your telephone are not constitutionally protected. They have never, ever been.
posted by Ironmouth at 11:12 AM on June 6, 2013

In the early days at Google we had several talks in small groups with Eric Schmidt on these issues (what a shame that he seems to have subsequently gone to the dark side).

He said that protecting the privacy of customers was Google's second priority - their first priority was making sure that their employees didn't end up in jail. As such, he said that the company would fight as hard as legally possible against any such requests, but they would not engage in civil disobedience by explicitly refusing to obey lawful orders.

Google ordered to hand private customer data over to FBI investigators: Judge who earlier ruled National Security Letters unconstitutional orders Google to nonetheless comply with them
posted by homunculus at 11:13 AM on June 6, 2013

Ironmouth: >> How you can say such things baffles me. At least some fraction of phone calls are being monitored

> the content of the calls themselves are not being monitored in this case. They do not have a wiretap order.

My actual quote. "At least some fraction of phone calls are being monitored - through legal means."

Are you really denying this? Are you saying, "For sure, no phone calls in America are being monitored, even through court orders."? I'll bet you aren't.

I asked numerous questions in my response to you. You picked one of many, edited it to change its meaning, then answered that.

Let me repeat:

* Why does the FISA bill indemnify the telecoms from the consequences of illegal wiretaps if these have not occurred?
* What's the point of the Utah Data Center if they aren't going to be collecting voice calls wholesale?

and particularly

* How could you possibly, possibly know this for sure - given that absolutely everything involving universal surveillance is completely secret?
posted by lupus_yonderboy at 11:16 AM on June 6, 2013 [1 favorite]

Heh. Two comments from the January 2007 thread that Bush's "illegal wiretaps were ending":

Reading the article, it sounds to me more like "now that the FISC has given us blanket authority to wiretap anyone we suspect is 'al-Qaeda,' we'll be more than happy to operate under that authority."
posted by wierdo at 7:21 PM on January 17, 2007 [+] [!]

They are looking for cover to deflect the upcoming hearings. This fold came so fast that I shudder to think what they are trying so hard to avoid having revealed. We are seeing only the beginning. These guys are going down in flames. It will start out slow and end fast.
posted by Ironmouth at 8:04 PM on January 17, 2007 [+] [!]

posted by crayz at 11:16 AM on June 6, 2013 [3 favorites]

smackfu: "Arguing over definitions of terms is the best kind of arguing, right?"

That's what we call "a legal career."
posted by Samizdata at 11:17 AM on June 6, 2013 [1 favorite]

John Yoo: Verizon Controversy Not As Bad As It Seems

That's pretty much proof that it is as bad as it seems.
posted by one more dead town's last parade at 11:18 AM on June 6, 2013 [2 favorites]

Thank You, Unknown Patriot Who Exposed the Government's Verizon Spy Program

NBC's Pete Williams: Justice Dept Will Launch Investigation Into Guardian Leaks

If the prosecution of Bradley Manning is any indication, if they catch this new whistleblower, they'll throw the book at him.
posted by homunculus at 11:20 AM on June 6, 2013

So now we are just imagining that the NSA is recording voice calls because they built a big data center?
posted by gjc at 11:20 AM on June 6, 2013

How are the telcos' rights being violated?
posted by gjc at 11:22 AM on June 6, 2013

Just wanted to add that there's a fascinating video of a lecture on whistleblowing and surveillance given at 29c3 featuring Jesselyn Radack, Thomas Drake and Bill Binney, the latter two being ex-NSA. Originally posted here, but I think it's relevant; it's not a pretty picture and I really hope we can find ways to re-assert the importance of the government obeying the constitution.

Drake and Binney were on Democracy Now this morning:

NSA Whistleblowers: "All U.S. Citizens" Targeted by Surveillance Program, Not Just Verizon Customers
posted by homunculus at 11:23 AM on June 6, 2013 [1 favorite]

So now we are just imagining that the NSA is recording voice calls because they built a big data center?

No. How many times does the name "Bill Binney" need to be mentioned in this thread?
posted by crayz at 11:23 AM on June 6, 2013

John Yoo: Verizon Controversy Not As Bad As It Seems

Oh, well then, John Yoo says it's OK. I guess that settles it.
posted by Flunkie at 11:26 AM on June 6, 2013 [1 favorite]

John Yoo: Verizon Controversy Not As Bad As It Seems

Y'know, I'm not too sure if it's wise to take advice on what is "not as bad as it seems" from a war criminal best known for drafting a series of legal memorandums meant to encourage evasion of the Geneva Conventions and explicitly authorize the torture of detainees.
posted by divined by radio at 11:26 AM on June 6, 2013 [5 favorites]

John Yoo: Verizon Controversy Not As Bad As It Seems

John Yoo: Crushing Children's Testicles Not As Bad As It Seems
posted by homunculus at 11:27 AM on June 6, 2013 [12 favorites]

....and it seems pretty awesome anyway!
posted by Holy Zarquon's Singing Fish at 11:27 AM on June 6, 2013

How are the telcos' rights being violated?

I'm not a lawyer so I would only say in general terms that while they definitely don't have a personal right to privacy in the way individuals do, law enforcement should not have carte blanche to look at whatever data is in their servers in such a broad way. If they want to hand it over, that's their right, but they should not be compelled to do so to this degree.
posted by Drinky Die at 11:29 AM on June 6, 2013 [1 favorite]

Metafilter: Not As Bad As It Seems
posted by whyareyouatriangle at 11:29 AM on June 6, 2013 [1 favorite]

Ironmouth, I don't know how I could possibly be more clear that I am arguing that the third party is the one potentially having their rights violated here, so I can only assume you are being intentionally dense and move on.

The reason I misunderstood you is because the third party is authorized to challenge the order and have it reviewed by a federal judge. Duh.
posted by Ironmouth at 11:35 AM on June 6, 2013

Charles Pierce: Verizon's Phone Record Scandal Is No Surprise

Still More About The Wiretaps
posted by homunculus at 11:36 AM on June 6, 2013

Senator Ron Wyden: In March, [Director of National Intelligence] Clapper specifically told me #NSA does not wittingly collect any type of data on millions of Americans

Video [cue to 6:09]
posted by BobbyVan at 11:36 AM on June 6, 2013

Heh. Two comments from the January 2007 thread that Bush's "illegal wiretaps were ending":

These are neither wiretaps or illegal. Bush was literally violating FISA by wiretapping calls inside the US without any court approval. These aren't even pen registers.
posted by Ironmouth at 11:38 AM on June 6, 2013 [1 favorite]

The Rude Pundit: NSA Phone Record Collecting and the Melancholy of Living in the Future
posted by homunculus at 11:39 AM on June 6, 2013

The reason I misunderstood you is because the third party is authorized to challenge the order and have it reviewed by a federal judge. Duh.

Yes, duh indeed, which is why I was pointing out to you that stating this is likely constitutional because the records aren't in your possession was missing a rather large part of the judicial review.
posted by Drinky Die at 11:40 AM on June 6, 2013 [1 favorite]

The top rated comment on the hacker news thread is very good. The poster is Dutch and reports on surveillance activities ongoing in the Netherlands. Apparently they have the tech with only 17 million population to record and store everything that is recordable. Now for network analyses the problems are combinatorial so the same thing for the NSA isn't 19 times bigger it is 19! or 120 quadrillion time bigger. So what the Dutch are doing is not technically feasible here. Yet. That is definitely the way that things are headed though. They have better trains and bike paths and coffee shops but their privacy is shit. Every place has its positives and its negatives. --bukvich

You don't need to do an analysis of the full power set, and I mean jesus dude if they did the Dutch government would need to look at 17,000,000!, or 10^{10^8.0627} different subsets. Obviously they are not doing that, there are lots of heuristics you can use to analyze large data sets, such as spectral graph analysis, which only requires finding the eigenvectors of a graph, so you're looking at maybe O(n^2.807+n*k) in practice, where k is the number of iterations you do in your eigenvector solver.

Thank goodness we're not being paranoid or hyperbolic or anything. -- dersins

I would guess that until yesterday there were people who would say the government collecting all phone records was just paranoid conspiracy nonsense. I say I would guess, but actually I don't have too. There was a recent thread where people made exactly that claim: 1, 2, 3. Of course there was some back and forth between 'all phone records' 'all phone calls' and 'all internet traffic'.

But the point is that just because something 'sounds paranoid' doesn't mean it's not true. I don't think the US government is doing this, mainly because they ironically can't keep secrets very well, despite Obama's attempt to clamp down on leakers, we're still not at a point where they could do something like that and not have it leak.

But, does anyone seriously think it's not happening in other countries, like China for example? One thing I wonder from people who say this is just being paranoid - do you actually believe that nothing like this is happening anywhere in the world? Or is it only not happening in the US? If it's happening in the rest of the world but not here, what's the reason for the difference?

Like I said, I don't think it would be possible for them to do this and not have it leak, so I don't think it's happening now. But it wouldn't be paranoid for a Chinese citizen to think their government is doing this.

We absolutely know for a fact that both the Chinese and Israeli governments pay people to comment on the internet. If you recall HBGary, they were apparently being paid by a US agency to write "astroturfing" software. -- lupus_yonderboy

The US chamber of congress is a lobbying group for large corporations, not a government agency. Also, they were trying to sell them but they never got a deal before all their emails were leaked.

I'm certain that lobbying groups in the US are paying people to get on social media to try to influence people, but I doubt the US government is.

Not expecting them to flout the law. I am, however, expecting them to CHALLENGE the law. You know, court, it's for rights... -- Samizdata

Why would you expect that? They want the government on their side when they try to stifle the internet and strengthen their monopolies.

"Slippery slope isn't an argument, it's a logical fallacy that hopes to stifle the other party through fear." -- gjc

Ah, the "the slippery slope is a logical fallacy" logical fallacy: where people believe no slopes are ever slick to such an extreme that they probably think that you can't even fall down an actual, literal ice covered hill.

Basically every major change that's ever happened has happened as a slippery slope, good and bad: Gay rights, legalizing marijuana, civil rights all had both small steps occur before the big ones. Same with stuff like the rise of the Nazis or the US involvement in Vietnam.

It is absolutely true that a move in one direction makes it more likely that you'll end up further along in that direction in the future then you will if the step isn't taken. If you want to be a logical purist and ignore everything that can't be said with 100% certainty and ignore probability , then you have to give up all science, since all of relies on the fallacy of induction, meaning you can't logically say that the sun will come up tomorrow just because it's come up every day in recorded history. The basis of science is saying that if you can repeat an experiment over and over it's a scientific fact. That's technically logically false.

If someone claims something or other is a "logical fallacy" it's actually a good indication they don't know anything about how logic actually works.

Ironmouth: >> How you can say such things baffles me. At least some fraction of phone calls are being monitored

> the content of the calls themselves are not being monitored in this case. They do not have a wiretap order.

My actual quote. "At least some fraction of phone calls are being monitored - through legal means."

Are you really denying this? Are you saying, "For sure, no phone calls in America are being monitored, even through court orders."? I'll bet you aren't.

I asked numerous questions in my response to you. You picked one of many, edited it to change its meaning, then answered that. -- lupus_yonderboy

Ironmouth is being inconsistent? SHOCKING.
posted by delmoi at 11:44 AM on June 6, 2013 [1 favorite]

The reason I misunderstood you is because the third party is authorized to challenge the order and have it reviewed by a federal judge. Duh.

Yes, duh indeed, which is why I was pointing out to you that stating this is likely constitutional because the records aren't in your possession was missing a rather large part of the judicial review.'

Its totally constitutional. The 3rd party can challenge them giving up their billing records to the government. You already gave those records to the telecoms. You can't.
posted by Ironmouth at 11:45 AM on June 6, 2013

Huh. In my comment above I quoted from a blog posting by John Yoo. He's since scrubbed much of the post and promises to expand in "a forthcoming piece in USA Today." I presume that USA Today has a policy that op-ed's must be exclusive content (and therefore not reproduced on other websites). Just wanted to make that clear in case someone clicked on the link expecting text that is no longer there.
posted by BobbyVan at 11:47 AM on June 6, 2013

It is absolutely true that a move in one direction makes it more likely that you'll end up further along in that direction in the future then you will if the step isn't taken.

prove that. that's exactly what the slippery slope is and it is 100% a logical fallacy.
posted by Ironmouth at 11:48 AM on June 6, 2013

Its totally constitutional. The 3rd party can challenge them giving up their billing records to the government. You already gave those records to the telecoms. You can't.

You could say the exact same thing about e-mail, which exists for most people in the possession of a third party. And you would be 100% wrong in that case as well.
posted by one more dead town's last parade at 11:48 AM on June 6, 2013

Metafilter: reducing the number of iterations you do in your eigenvector solver
posted by BobbyVan at 11:49 AM on June 6, 2013 [4 favorites]

You already gave those records to the telecoms. You can't.

Oh okay thanks for telling me that because I was totally saying I could and not pointing out to you that my inabiliy to do this did not make this de facto constitutional.
posted by Drinky Die at 11:49 AM on June 6, 2013

> the content of the calls themselves are not being monitored in this case. They do not have a wiretap order.

My actual quote. "At least some fraction of phone calls are being monitored - through legal means."

Are you really denying this? Are you saying, "For sure, no phone calls in America are being monitored, even through court orders."? I'll bet you aren't.

Obviously some search warrants exist in the government. My point is that this allows for retrospective looks, not real-time monitoring. Monitoring is a pen-register.
posted by Ironmouth at 11:50 AM on June 6, 2013

Its totally constitutional. The 3rd party can challenge them giving up their billing records to the government. You already gave those records to the telecoms. You can't.

You could say the exact same thing about e-mail, which exists for most people in the possession of a third party. And you would be 100% wrong in that case as well.

Really? so Smith v. Maryland does not exist? The Supreme Court did not rule 34 years ago that pen registers are not searches and don't require a warrant? Please explain your claim in the light of the fact that the Supreme Court declared that a list of the numbers you called is not constitutionally protected?
posted by Ironmouth at 11:52 AM on June 6, 2013 [1 favorite]

Oh okay thanks for telling me that because I was totally saying I could and not pointing out to you that my inabiliy to do this did not make this de facto constitutional.

no, Smith v. Maryland makes this constitutional.
posted by Ironmouth at 11:53 AM on June 6, 2013

Imagine a letter. It is private because it is between you and the recipient. But your paying someone for a series of overseas stamps is not. [...] You have no reasonable expectation that a third party won't hand things over to anyone.

What if I put that letter in an envelope and hand it to the postman? If I give my money to the bank or put things in a safety deposit box? I feel like I'm misunderstanding something. What if I have a contract with someone that they won't disclose or give away information or possessions? I feel like there must be some sort of legal nuance I'm overlooking here.
posted by nTeleKy at 11:54 AM on June 6, 2013

Why do I have the sudden feeling of sliding down a slope at an incredible rate of speed?
posted by AElfwine Evenstar at 11:59 AM on June 6, 2013 [1 favorite]

no, Smith v. Maryland makes this constitutional.

As I understand it, not a lawyer, Smith v. Maryland ruled that the caller did not have an expectation that the phone company would not turn over information to the police. It was not a case about a phone company being court ordered to turn over information on all their calls to police. Am I wrong?
posted by Drinky Die at 12:00 PM on June 6, 2013 [1 favorite]

prove that. that's exactly what the slippery slope is and it is 100% a logical fallacy.

It's a basic fact of the statistical properties of a random walk, starting from the probability axioms. Anyone who knows basic statistics will understand, and if you don't, well, go buy a fucking textbook.

(That said, the basic outline is that if you are at point y at time t, then then the probability density function describing the various probabilities of you being at certain positions at time t+n will be a Gaussian distribution centered on point y. If you change point y, then you also change the center of the PDF. Duh.)

Also yes, as I said it is a logical fallacy, along with all science, which is based on the principle of induction. You literally can't say the sun will come up tomorrow without saying something that is a 'logical fallacy'.

I mean, you said yourself in another thread that you don't even know formal logic. Even if something can be mathematically proven, You can't make that clear to someone who isn't capable of understanding the steps used.

Ironmouth: do you believe in the principle of induction, or do you believe that because it is a logical fallacy that all science is false?

Which is it? Because it has to be one or the other.
posted by delmoi at 12:01 PM on June 6, 2013

> My point is that this allows for retrospective looks, not real-time monitoring.

OK, got it. "It doesn't count unless you hear the conversation at the moment it's generated."

So I think we're in all agreement here. You're saying that the government is not listening to conversations in real-time, which I imagine any rational person would agree with, and no one else has expressed any interest in whether the call is being listened to exactly as it happens or somewhat later, because to most people this seems completely academic and irrelevant.

In future, when I talk about the government "monitoring" our calls, I will always be including the case where the calls are stored and then actually retrieved later.
posted by lupus_yonderboy at 12:02 PM on June 6, 2013

Ranking Senate Intelligence Committee member Senator Chambliss (R-GA):

This is nothing particularly new. This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this.

The entire US Senate has known this was going on for at least seven years and hasn't done anything about it. Presumably, multiple Federal judges have signed off, too.
posted by saulgoodman at 12:02 PM on June 6, 2013 [1 favorite]

no, Smith v. Maryland makes this constitutional.

As I understand it, not a lawyer, Smith v. Maryland ruled that the caller did not have an expectation that the phone company would not turn over information to the police. It was not a case about a phone company being court ordered to turn over information on all their calls to police. Am I wrong?

Yes it was a case about a phone company being ordered to hand over information. Smith said the information could only be used by the government in a criminal case if they had a warrant and should otherwise be excluded. The Court said no, the warrant requirement did not apply to which phone dialed which number.
posted by Ironmouth at 12:06 PM on June 6, 2013

Ironmouth: no, Smith v. Maryland makes this constitutional.

But metadata includes more than times/dates/phone numbers. It also includes fairly precise location information if you're using a mobile phone.

On the other side of the coin you've got a case like US v. Jones, where the Supreme Court ruled that installing a GPS device to track a vehicle's movements constituted a "search." Jones isn't quite applicable here in that the GPS was used for ongoing surveillance, but I do think it shows that information that can be used to track down the physical location of a person is relevant from a Fourth Amendment perspective.
posted by BobbyVan at 12:10 PM on June 6, 2013

Yes it was a case about a phone company being ordered to hand over information.

Ahh, my mistake. I must have read a bad summary that said they did it at police request and not that they were ordered.

The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home. Id. at 73, 75. The police did not get a warrant or court order before having the pen register installed.
posted by Drinky Die at 12:10 PM on June 6, 2013 [1 favorite]

It's not a violation for the police to ask and the phone company to freely comply, and I guess it hasn't been litigated whether the police can force the issue.

My impression based on a quick google search (the gold standard for legal research) is that the police can and do force telcos to install pen registers, and that challenges to that have not (yet) been successful. I'm not sure how that plays out if there's literally no reason to suspect that the target phone records have any relationship to a crime, though -- that's one of the things that makes the warrant here really bizarre, and you're right that that particular situation probably hasn't been litigated yet.

How are the telcos' rights being violated?

See above. The government can't search/seize people's/telco's stuff (or subsets of it) if there is literally no reason to believe it contains evidence of a crime. And it doesn't matter that the search is being conducted to find information about a third party, rather than about the telco itself -- though Fourth Amendment rights are usually asserted by criminal defendants, the right exists totally separate from criminal prosecution.

Its totally constitutional. The 3rd party can challenge them giving up their billing records to the government. ... Smith v. Maryland makes this constitutional. ... it was a case about a phone company being ordered to hand over information.

Drinky Die is dead on here: Smith v. Maryland is not on point, because there was no involuntary seizure from the phone company in that case. They were not ordered to hand over information. Nor does the fact that telcos have a limited right to appeal the FISA court's decision does not inherently make that decision constitutional.

Instead, as a baseline, what would make that decision constitutional is if there was sufficient evidence, for purposes of the Fourth Amendment, that the requested search or seizure would reveal evidence of a crime, to justify the involuntary seizure of the telco's records. And there is not, because the evidence in this case as to the vast majority of the records requested is zip.

So it's unconstitutional anyway, if my saying things in a confident tone of voice can make them come true.

But even this idea that only the telco's rights are at stake is assuming that the doctrine Ironmouth relies on -- that storing your records with a third party means giving up any expectation of privacy in them -- is still valid. It's still the law regarding phone call metadata, and (while it's very fact based) I believe there are court decisions supporting it to some extent in other areas -- but it's become increasingly divorced from reality. Our file cabinets and bookshelves and address books and saved mail and medical records and photo albums and unpublished novels all live in the nebulous cloud, with the strong expectation that they won't be shared with others without our consent. The Fourth Amendment enforces our reasonable expectation of privacy, and absolutely should cover that. My money says sooner or later it will.
posted by jhc at 12:11 PM on June 6, 2013 [4 favorites]

It's a basic fact of the statistical properties of a random walk, starting from the probability axioms. Anyone who knows basic statistics will understand, and if you don't, well, go buy a fucking textbook.

This isn't a statistically measurable phenomenon. You have to have a limited number of fully defined outcomes which can be differentiated from one another and measured numerically. The laws of a country don't apply. Asimov was, of course. wrong.

Also yes, as I said it is a logical fallacy, along with all science, which is based on the principle of induction. You literally can't say the sun will come up tomorrow without saying something that is a 'logical fallacy'.

The sun may not come up tomorrow. This is an undeniable fact. It could be swallowed by a black hole or explode. It may be incredibly unlikely and a bad bet, but its true. Indeed our measurement of gravitation could be way off and one in 1 x 10^999999999999999999 times gravity stops working and bodies repel one another. This is also incredibly unlikely but still true.
posted by Ironmouth at 12:14 PM on June 6, 2013

> > It was not a case about a phone company being court ordered to turn over information on all their calls to police.

> Yes it was a case about a phone company being ordered to hand over information.

But NO, it was not a case about a phone company being court ordered to turn over information on all their calls to police. This was a case where a specific crime was being investigated and the police requested specific items from the pen register.

Moreover, a pen register specifically records only times and phone numbers. "Metadata" is a much broader concept, which certainly includes things like "caller's location" but in some cases will include things like "the text contents of the call".

I don't see this as being at all applicable. In order for it to be applicable, the request would have to be appropriate to a single investigation, not a "fishing expedition" (upon which courts have historically looked very skeptically), and the request would have to confine itself to only to "pen register" information - that is, numbers and times ONLY.
posted by lupus_yonderboy at 12:15 PM on June 6, 2013

The goalpost-moving here to justify violations of the Fourth Amendment is pretty staggering.
posted by one more dead town's last parade at 12:19 PM on June 6, 2013 [2 favorites]

> The sun may not come up tomorrow. This is an undeniable fact. It could be swallowed by a black hole or explode. It may be incredibly unlikely and a bad bet, but its true. Indeed our measurement of gravitation could be way off and one in 1 x 10^999999999999999999 times gravity stops working and bodies repel one another. This is also incredibly unlikely but still true.

This is an astonishing counterargument. "Beyond reasonable doubt", the sun WILL come up tomorrow. Legally, you wouldn't get far in court arguing that gravity might have malfunctioned.

I've reached the limit of the time and patience I have to deal with arguments of such a calibre. Good day.
posted by lupus_yonderboy at 12:20 PM on June 6, 2013 [1 favorite]

Drinky Die is dead on here: Smith v. Maryland is not on point, because there was no involuntary seizure from the phone company in that case. They were not ordered to hand over information.

Try reading the case before making dumb statements:

The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home. Id., at 73, 75. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner's home to McDonough's phone. Id., at 74. On the basis of this and other evidence, the police obtained a warrant to search petitioner's residence. Id., at 75. The search revealed that a page in petitioner's phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Ibid. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. Id., at 70-71.

The teleco here could have challenged the order, see 50 U.S.C. section 1861(f)(2)(A)(i)

A person receiving a production order may challenge the legality of that order by filing a petition with the pool established by section 1803 (e)(1) of this title. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 1803 (e)(1) of this title.

No portion of the constitution guarantees an absolute right. It only says those rights may be infringed upon due process of law. The fact that a teleco has to turn over records after it has applied to have the order quashed by a judge means it has a due process outlet. The government can compel you to testify, to produce to whatever, but it has to give you due process first. The forcing is the judge's order and a warrant is a forcing to turn over the evidence. Maryland v. Smith applies 100% here.

I have got to go! sorry!
posted by Ironmouth at 12:22 PM on June 6, 2013

The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home. Id., at 73, 75.The police did not get a warrant or court order before having the pen register installed.

So I'm kind of lost as to how they could have challenged the court order the police never got.
posted by Holy Zarquon's Singing Fish at 12:29 PM on June 6, 2013

I'm not aware of anyone having argued the telco could not challenge an order in cases where they have actually received one. There is an argument that they should WIN that challenge if the search is unreasonably broad as this one seems to many and an argument that the existence of that potential challenge means you should not treat the caller's rights as the only constitutional question involved.
posted by Drinky Die at 12:33 PM on June 6, 2013

The goalpost-moving here to justify violations of the Fourth Amendment is pretty staggering.

What do you mean?

In the case that sets up our precedent, the 1970s Baltimore police convinced the local phone company to voluntarily have its operators manually record the numbers dialed by a single robbery suspect for a single day.

I really fail to see the difference between that and blanket classified orders to all telcos mandating an automated dragnet of all domestic and international calls for the rest of time.

Precedent! It's lawyer speak.
posted by crayz at 12:41 PM on June 6, 2013 [2 favorites]

God it's become a gigantic thread very quickly. I want to address the first sentence in the first comment though:

I don't think there's anything we can do about stopping or even slowing down increasing surveillance by government and business

PHOOEY. We certainly could if we built up the national will around changing it. That's our task here.

I notice Ironmouth has taken up his usual role of threadsitting dismissive enabler. Of the 300+ comments in this thread so far, thirty are his. I have no time to go through them all, but in his first:

The idea that terrorists attack us because they wanted to make us have the Patriot Act is as dumb as saying they attack us because of our freedoms.

This is absolutely false, and saying it is pretty "dumb" itself. One of the things that terrorists try to do is make the cost of every day life in the target too high to bear; is that airplane passenger innocent or a terrorist? Let's treat them all as if they might be! That's a tremendous waste of resources, and they're resources we wouldn't be wasting if it weren't for 9/11. That's the kind of thing terrorists try to inflict, and the GOD I HATE THIS NAME "PATRIOT Act" is part of it. They might not have planned it precisely, but they certainly wanted things like that to happen.

In that regard, Al Queda's plans have been a tremendous success -- they've made the US crap its pants so many times, and institute so many draconian civil-rights restricting laws, and change the whole tenor of conversation of the country, and cause so many people to look askance at the US government from its national freakout, that I don't see how anyone could view their campaign as any less than successful, and it's all because of how the US has chosen to comport itself after 9/11.
posted by JHarris at 12:42 PM on June 6, 2013 [13 favorites]

Dropping in and out of this thread as time permits today, so I apologize if this was already posted.

It's already been established that the government does not need a warrant to force service providers to turn over metadata. It seems to me that the major news is not the type of surveillance, but the scale.

As smarter people than me have pointed out, metadata in aggregate is content. After the government, with no warrant in hand, forced Twitter to turn over information about his account, Jacob Appelbaum had this to say:

JACOB APPELBAUM: Yeah, I mean, the secret interpretation of Section 215 of the PATRIOT Act seems to be that anything that the government wants is fair game without a warrant. And that’s terrifying. And this seems to be the tip of the iceberg. You know, as we know from that video with the FBI woman that I met, she seemed to indicate that there was a national security letter. So I think these 2703(d) orders, they’re important to be considered as the tip of an iceberg of an investigation, so there are probably other types of legal orders. And so, I think it’s important to stress: Metadata in aggregate is content.

AMY GOODMAN: If people are having trouble understanding you, metadata in aggregate is content.

JACOB APPELBAUM: It’s—yeah, absolutely. What that means is that if you look at one event, that I talk to you via email, in theory, that we talked is a piece of metadata. The content—that is, what I wrote in the email—that is, in theory, protected, and you need a search warrant for it. But if they know that I talk to you every single morning, that tells a story, maybe even, you know, a really important story. And maybe if they see that I talk to Dan or they see that I talk to other people, that also tells a story that is equal to content when it’s viewed in an aggregate. And that’s something that’s quite terrifying, because the court doesn’t seem to recognize that, nor do they recognize the location privacy issues with the Internet. And that is to say, they watch and see every place that I’ve been. They get this data, and then they have a tracking device, effectively. Now, in my case, I use the Tor network in order to protect my location anonymity needs, but most people don’t, and they expect the rule of law to do that for them. So imagine their surprise when it doesn’t.

Reporters seem to understand the "metadata is content" argument a lot better once AP metadata got turned over. Incidentally, I can find nothing in the court-order-cited law that would limit its scope to "just" metadata.
posted by compartment at 12:53 PM on June 6, 2013 [2 favorites]

In the case that sets up our precedent, the 1970s Baltimore police convinced the local phone company to voluntarily have its operators manually record the numbers dialed by a single robbery suspect for a single day.

And that is not the same thing as retroactively pulling calling records (plus metadata more akin to the patently unconstitutional GPS tracking, which wasn't available at the time of Smith) for everybody. It's meaningfully different in both time and scope, and to say that this is the same sort of activity, or even that a reasonable person does not expect privacy in those numbers (or, for the very silly argument, that Verizon would have an expectation of privacy before its subscribers do), ignores the facts.

If they were doing only what was done in Smith, maybe you'd have a point. But a lot more is going on than that.
posted by one more dead town's last parade at 1:03 PM on June 6, 2013

Nailed it, JHarris. Every penny spent trying to swat at gnats is a penny that could be spent building up national wealth and investing in meaningful infrastructure and institutions with long-term public value. Spending on harassing and surveilling the public instead only increases mistrust for authority, social unrest, and general paranoia. Terrorists who aim to unsettle and terrorize the American population couldn't ask for a more helpful political response than to treat their criminal activities as a special class of super-threat that confounds all standing law and centuries of legal theory. It's not like stateless terrorism didn't exist or directly effect the United States (sometimes even on a comparably large scale) before 9/11, despite how the media and political classes have spun the story. The only significant difference between 9/11 and previous terrorist attacks was the scale of the tragedy--but in context, even with 9/11, terrorism still barely registers as a cause of death or injury in the US alongside more ordinary causes. So what justifies the radical reordering of long established US law and precedent that took place after 9/11 through the courts and legislative processes?
posted by saulgoodman at 1:06 PM on June 6, 2013 [2 favorites]

What a lede!

WASHINGTON (AP) -- The government knows who you're calling.

Every day. Every call.

posted by BobbyVan at 1:06 PM on June 6, 2013 [3 favorites]

Also:
(Cries to him himself he voted for Obama first term.)

It is unfortunate that Obama hasn't been the sterling defender of civil rights we would like him to be. He's done many good things too however. One of the biggest is, he wasn't someone much worse. It's a shame that history is probably going to register him as being firmly a hold-the-course president, with that course firmly set by the old guy into the reefs, but so be it.
posted by JHarris at 1:09 PM on June 6, 2013

Because they have access to the polling and know exactly how many people have complained to them about it.

NSA was trending on short-attention span twitter this a.m. One of the top tweets complained – wait for it – that the fact we had no terrorist attacks post 9/11 under Bush, but have had one under Obama means that Obama isn’t using the data.

Yes. That’s what some people think is wrong with this whole picture.
posted by NorthernLite at 1:19 PM on June 6, 2013

New York Times: President Obama's Dragnet

Within hours of the disclosure that the federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights.

Those reassurances have never been persuasive — whether on secret warrants to scoop up a news agency’s phone records or secret orders to kill an American suspected of terrorism — especially coming from a president who once promised transparency and accountability. The administration has now lost all credibility.

posted by BobbyVan at 1:31 PM on June 6, 2013 [4 favorites]

Let's suppose that the FBI wants to know every call that a few hundred folks on their watch list make. They go to the telcos and say "We'll change our watch-list every day and you send us just these folks' phone records every day." There are two solutions: (A) every telco sets up a computer and builds an analytic to run every day to find the data the FBI wants and send it to them; and (B) the telcos say that's too much work, and redundant work at that and they will only do it once a month.

Which solution does the NSA like best? Clearly (A), they can get just the data they want and the telcos stand up the data analytic computers. It's a win-win.

Which solution does the telco like best? Right, it's (B), which isn't a solution at all.

At that impasse, the telcos say "It would be cheaper to give you all the data, and have you write one analytic that processes all the data from all the telcos". This option (C) is actually the least cost overall. What's the FBI to do? Do they go into the intelligence data mining business? Perhaps they'd rather have all that data shipped over to the folks that already have huge towns of computers already filled up with analytic tools for distilling signals intelligence = the NSA.

Does the NSA like (C) better than (A)? Of course not. Who in their right mind would pick haystack+needle over needle? However, (C) is better than (B), so maybe the NSA takes one for the team. However, they're not going to get caught processing data without a legal authority. That kicks the ball back to the FBI, who goes and gives the whole (A) vs (B) vs (C) talk to a judge to get a FISA warrant for all the call metadata for all the calls on earth.

{I have no direct knowledge of any of this, historically, but I'm just asking how it could turn out any other way.}

If you don't want this to be legal, then repeal (or don't renew) the Patriot Act. The war on drugs cost US citizens their 4th amendment rights. The war on violence is trying to cost them their 2nd amendment rights. The war on terror may have secretly cost them their 1st amendment rights. Anybody else want to go back to only declaring war on countries??
posted by RSaunders at 1:32 PM on June 6, 2013

If I'm remembering correctly, the entire point of what Al Qaeda did was "economic warfare" - casualties are part of the attack, but the greater effect is economic damage that scales up much, much greater than the cost of the attack.

The obvious economic impact is the direct one - Outside of the direct casualties and destruction, there was emergency response, cleanup, reconstruction.

In response to 9/11, we immediately waged two wars - One related in Afghanistan, one not. We are still incurring expense from these wars.

The Patriot Act was a DIRECT result of the 9/11 attack. It was not on the table before. We had plenty of information to act on in advance, and the Patriot Act would not have remedied the institutional problems that prevented relevant information from getting in front of those who could have prevented it.

This act not only allowed government intelligence to sprawled out to an unprecedented size, it practically mandated it. Now, we have entire departments that did not exist before, such as DHS... and a gigantic private intelligence sector full of contractors supporting them. The scaleout of the intelligence sector is something that has come at an enormous cost to the general public.

All of these departments cost us, as citizens. They aren't free - We incur the cost of our own government.
These massive data centers, capturing all of these calls, have arisen directly out of the path that the Patriot act laid out - We pay for the operational cost, the construction, the staffing, and the power.
Every flight now carries additional fees and procedures, as a direct result of the 9/11 attacks. Every person that flies has to pay and tolerate more than we did before.

Meanwhile, we are looking at a Government that is incapable of setting a budget, that must continually raise debt ceilings, that is showing no signs of slowing this descent into unsustainable debt.

All of this is a DIRECT result of the 9/11 attacks. In what way was Al Qaeda not EXTRAORDINARILY successful?

We may learn to temper our response over time, that enacting draconian laws and expansive institutions are not the appropriate response to these attacks. Unfortunately, they are already the reality, and our "recovery" from these measures - rolling back the data collection, shrinking the intelligence sector, relaxing the procedures - are not only politically difficult at best, they will take a much longer time to undo than they ever did to go into place.
posted by MysticMCJ at 1:44 PM on June 6, 2013 [2 favorites]

I kind of like Congresscritters' statements, basically "It's legal and no big deal."

Then why was it kept secret? Any sane terrorist would assume this was happening anyway, so you're not giving anything particularly helpful away if you say "Yes, we collect all metadata from calls in the US" up front and give the legal reason why.
posted by BungaDunga at 1:50 PM on June 6, 2013 [3 favorites]

Also, it's easier to just capture every bit of data for a rolling 1-2 day period at minimum, and pull the interesting bits out later, and it also allows one to "retroactively wiretap." I know from first hand experience that this is not an uncommon setup for voice networks on a small scale. So yes, the NSA likely doesn't do real time analysis of everything - They probably just capture and archive it all for a window of time.

This is more reasonable when your window of time is, say, 24 hours or so, and you have a nightly process that pulls off the "data of interest" to longer term, and you have known retention policies in place with established data destruction policies to guarantee privacy.

This is less reasonable, to say the least, when this is all a secret, but you know that window of time is "long." Not knowing what that window of time is pretty scary.

It should bother you that many corporations are expected to have these policies in place for their own data, but there's no such guarantee for our own data, or from our own government.
posted by MysticMCJ at 1:52 PM on June 6, 2013

Does the NSA like (C) better than (A)? Of course not. Who in their right mind would pick haystack+needle over needle? However, (C) is better than (B), so maybe the NSA takes one for the team. However, they're not going to get caught processing data without a legal authority. That kicks the ball back to the FBI, who goes and gives the whole (A) vs (B) vs (C) talk to a judge to get a FISA warrant for all the call metadata for all the calls on earth.

My understanding is that the government managed to get a warrant for this and that Verizon and the other telcos had to give up all the data. Setting up an online system to allow the FBI or whoever real time access to call records wouldn't be that expensive and the phone companies can actually charge them for it. So option A would not be impossible at all.

Also, it's easier to just capture every bit of data for a rolling 1-2 day period at minimum, and pull the interesting bits out later, and it also allows one to "retroactively wiretap." I know from first hand experience that this is not an uncommon setup for voice networks on a small scale. So yes, the NSA likely doesn't do real time analysis of everything - They probably just capture and archive it all for a window of time.

As I said, it would be easier, but it would certainly be possible to setup a system where only people of interest had their data sent to the government, with the rest being retained by the phone company and available given a court order. If they actually cared about privacy, that's what they would have done. I doubt it would have been that expensive.

Then why was it kept secret? Any sane terrorist would assume this was happening anyway, so you're not giving anything particularly helpful away if you say "Yes, we collect all metadata from calls in the US" up front and give the legal reason why.

Well, like I said in this thread from literally like a month ago, it was never really that secret. People knew about it, people talked about it, it's just that it had never been 'officially' confirmed an some people just really didn't want to believe (and again, there was kind of a conflation about call logs, voice data and internet data, but whatever -- IIRC there were definitely people saying that call logs were all being monitored and other people saying they didn't think even that was true).

And of course there are tons and tons of people who just didn't follow these issues very carefully and might be shocked about this.

___

The sun may not come up tomorrow. This is an undeniable fact. It could be swallowed by a black hole or explode. It may be incredibly unlikely and a bad bet, but its true. Indeed our measurement of gravitation could be way off and one in 1 x 10^999999999999999999 times gravity stops working and bodies repel one another. This is also incredibly unlikely but still true. -- Ironmouth

Yeah, that's obviously true, duh, it's perfect example of how you can't seem to even remember what it is you're arguing about.

Let's review. I said:

It is absolutely true that a move in one direction makes it more likely that you'll end up further along in that direction in the future then you will if the step isn't taken.

Then you said:

prove that. that's exactly what the slippery slope is and it is 100% a logical fallacy.

As you can see, I said "more likely", not "certain". And you are wrong about the definition of the slippery slope fallacy, by the way, it has to do with certain outcomes, not probabilistic ones.

___

This isn't a statistically measurable phenomenon. You have to have a limited number of fully defined outcomes which can be differentiated from one another and measured numerically. The laws of a country don't apply. Asimov was, of course. wrong.

I'm not going to argue about math with someone who doesn't even know it, but you are basically completely wrong. You can take statistical samples of the law (if you have access to it), you can create numerical metrics in lots of different ways: for example, using polls to see what percentage of the population, or of experts, thinks this law is OK vs. the number who think it goes to far.

There's also the underlying n-dimensional space consisting of all possible laws of length n or less, and the infinite dimensional space of all possible laws which does in fact mathematically exist and can be reasoned about just like any other algebraic structure. It's not a very practical way to look at things but you can use it's existence in proofs.

Asimov was, of course. wrong.

If you're talking about psychohistory in the Asimov's foundation series, I haven't read it and in either case it's completely irrelevant. It's also not particularly clear why you think it would be.

Anyway, this is ridiculous. Someone who doesn't know what they're talking about and doesn't care whether or not their arguments are even consistent with each other, let alone right is going to be able to spew a limitless amount of bullshit. Explaining how it's bullshit takes more time then creating it, and the end result is just more bullshit.
posted by delmoi at 2:05 PM on June 6, 2013 [4 favorites]

In other surveillance news, from Ars Technica:

Researchers teach Wi-Fi to “see,” identify gestures

The team, led by Assistant Professor of Computer Science and Engineering Shyam Gollakota, developed a system dubbed WiSee, which uses radio waves from Wi-Fi to sense human body movements and detect command gestures from anywhere within a home or office.

...

By using multiple antennas and a Wi-Fi receiver with multiple input multiple output (MIMO) capability, WiSee can "lock on" to a specific user with an antenna from among a group of other people in a space.

...

WiSee can "see" through walls, making it more practical for applications like home automation as well as the usual Minority Report-like interactions with media and computing devices.

posted by XMLicious at 2:09 PM on June 6, 2013

I kind of like Congresscritters' statements, basically "It's legal and no big deal."

Saxby Chambliss is on a roll this week.
posted by homunculus at 2:14 PM on June 6, 2013

For anyone considering Vibrissae's idea, David Brin (who I'm now only 99% sure doesn't go by the pseudonym "Vibrissae") wrote "The Transparent Society" to defend the proposition that ubiquitous surveillance is now inevitable and the best we can do is make sure that it isn't restricted to a ruling caste. The introductory chapter is free online.

He did, back in 1998. It seemed, at the time, a pretty impressive work, offering a radically transparent vision of the future. But as I wrote in April's surveillance/privacy thread:

I first read The Transparent Society in maybe 5th grade actually and was pretty taken with the idea. The whole "tale of two cities" in the future gambit was compelling, and the whole thing was just so fresh and futuristic that it sucked me in. The super-transparent utopias in Brin's world sounded far preferable than life in Orwell's gloomy prison. Who wouldn't want to use a wristwatch computer to check around a dark corner late at night or have facial recognition alert a parent where a lost child has wandered off to?

But I was maybe 10 then [ed. yes, really. I had an awesome school librarian who suggested I read it] and naive, and we've all grown up a little since then. What I couldn't see then was that Brin's two cities are a false dichotomy. Brin insisted that we were going to have to get telescreens soon enough anyway, so let's at least let them all be two-way and make the most of it. But why do we have to choose and is that even practical?

it's a naive fantasy that radical transparency won't just make the powerful more powerful. The inherent asymmetry of information means that your "ruling caste" can always use the information against everyone else more than the other way around. Sure, crowdsourcing means that some average citizens will uncover official wrongdoing here and there, but the government is going to be better resourced to use information against citizens, rightly or wrongly. Schnier made basically this point back in 2008 in "The Myth of the 'Transparent Society:'" "If I disclose information to you, your power with respect to me increases. One way to address this power imbalance is for you to similarly disclose information to me. We both have less privacy, but the balance of power is maintained. But this mechanism fails utterly if you and I have different power levels to begin with."

If I have your call metadata, I can tell everyone that you seem to spend a lot of time talking to your mother. If the government has your call metadata, it can put you on the no-fly list or ship you off someplace for extraordinary rendition. A rising tide of shared information may lift all boats, but that cliche is of little comfort to the guy in a little kayak being swept up by the ocean liner rising next to him. Giving up on privacy and simply insisting on transparency in its place is entering Dr. Strangelove territory.
posted by zachlipton at 2:16 PM on June 6, 2013 [4 favorites]

it's a naive fantasy that radical transparency won't just make the powerful more powerful. The inherent asymmetry of information means that your "ruling caste" can always use the information against everyone else more than the other way around.

Yeah, exactly. There's no reason to think there won't be an asymmetry between the powerful and the rest of society.
posted by delmoi at 2:31 PM on June 6, 2013 [2 favorites]

There's also the underlying n-dimensional space consisting of all possible laws of length n or less, and the infinite dimensional space of all possible laws which does in fact mathematically exist and can be reasoned about just like any other algebraic structure.

what
posted by brain_drain at 2:32 PM on June 6, 2013

Has there been any discussion in the US about the fact that this was raised in the Guardian, as opposed to a US publication?
posted by Jakey at 2:38 PM on June 6, 2013 [1 favorite]

Yeah, exactly. There's no reason to think there won't be an asymmetry between the powerful and the rest of society.

Well that's what makes them powerful, right? The money system is there for all of us to use equally, but Warren Buffet can do a lot of things with it that I can't. The public airspace is similarly open, but the guy in the private jet doesn't have to take his shoes off and get groped to fly to Omaha like I do. "The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread."
posted by zachlipton at 2:42 PM on June 6, 2013

It's interesting to go back and look at the exact language that changed in the Patriot Act here -- it kind of clarifies where we went off the rails.

FISA in 2000: "The Director of the [FBI] ... may make an application for an order authorizing a common carrier, public accommodation facility, physical storage facility, or vehicle rental facility to release records in its possession .... Each application under this section ... shall specify that ... there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power."

FISA in 2001: "The Director of the [FBI] ... may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) .... Each application under this section ... shall specify that the records concerned are sought for an authorized investigation ... to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities."

Now check out all the ways this changes the standard, relevant to our Fourth Amendment discussion:

1) The 2000 version only applies to relatively public businesses. The 2001 version applies to any person or business.
2) The 2000 version only applies to records. The 2001 version applies to any tangible thing.
3) The 2000 version "authorizes" the target to turn over the records. The 2001 version "requires" production.
4) The 2000 version requires "specific and articulable facts that the records pertain to a particular person. The 2001 version just requires a statement that the records are sought to protect against international terrorism.

So in 2000, certain public businesses can be authorized to turn over records if specific and articulable facts show they pertain to an agent of a foreign power. Secrecy is less of a problem, because requests under this provision are more likely to be limited by the provision itself than by the Fourth Amendment.

In 2001, any person or business can be required to turn over any tangible thing if the FBI says it is for an investigation to protect against international terrorism. Secrecy becomes much more of a problem, because the statute reaches far beyond the limits of the Fourth Amendment -- the limits on the secret investigators and secret courts become constitutional, not statutory. And there is no one to challenge their interpretation of constitutional rights, so the constitutional limits are basically discretionary.

This is like telling police that they can go into anyone's house and take anything they want if they think it might protect against crime, and it is a crime for witnesses to say anything when it happens, but they're on their honor to only do it if they think it's constitutional. It's profoundly strange. I have to imagine it's lasted this long only because many people assumed it couldn't possibly mean what it says. Maybe this is enough to change that.
posted by jhc at 2:45 PM on June 6, 2013 [7 favorites]

Washington Post: U.S. intelligence mining data from nine U.S. Internet companies in broad secret program

The highly classified program, code-named PRISM, has not been disclosed publicly before. Its establishment in 2007 and six years of exponential growth took place beneath the surface of a roiling debate over the boundaries of surveillance and privacy. Even late last year, when critics of the foreign intelligence statute argued for changes, the only members of Congress who know about PRISM were bound by oaths of office to hold their tongues.

...

But the PRISM program appears more nearly to resemble the most controversial of the warrantless surveillance orders issued by President George W. Bush after the al-Qaeda attacks of Sept. 11, 2001. Its history, in which President Obama presided over “exponential growth” in a program that candidate Obama criticized, shows how fundamentally surveillance law and practice have shifted away from individual suspicion in favor of systematic, mass collection techniques.

posted by BobbyVan at 2:52 PM on June 6, 2013 [2 favorites]

Also Revealed by Verizon Leak: How the NSA and FBI Lie With Numbers
posted by homunculus at 2:58 PM on June 6, 2013

In other privacy news: Feds say they can search your laptop at the border but won’t say why.
posted by homunculus at 2:59 PM on June 6, 2013 [1 favorite]

[And don't forget if you live anywhere in Michigan, you live "along the border." http://www.wired.com/threatlevel/2008/10/aclu-assails-10/]
posted by NorthernLite at 3:08 PM on June 6, 2013

Greenwald and the Guardian on PRISM: NSA has direct access to tech giants' systems for user data, secret files reveal

The National Security Agency has obtained direct access to the systems of Google, Facebook, Apple and other US internet giants, according to a top secret document obtained by the Guardian.

The NSA access is part of a previously undisclosed program called PRISM, which allows them to collect material including search history, the content of emails, file transfers and live chats, the document says.

The Guardian has verified the authenticity of the document, a 41-slide Powerpoint presentation – classified as Top Secret with no distribution to foreign allies – which was apparently used to train intelligence operatives on the capabilities of the program. The document claims "collection directly from the servers" of major US service providers.

Although the presentation claims the program is run with the assistance of the companies, all those who responded to a Guardian request for comment on Thursday denied any knowledge of any such program.

posted by BobbyVan at 3:11 PM on June 6, 2013 [2 favorites]

Greenwald and the Guardian on PRISM: NSA has direct access to tech giants' systems for user data, secret files reveal

Surely this will... Ah, screw it.
posted by zachlipton at 3:28 PM on June 6, 2013 [1 favorite]

There's also the underlying n-dimensional space consisting of all possible laws of length n or less, and the infinite dimensional space of all possible laws which does in fact mathematically exist and can be reasoned about just like any other algebraic structure.
what-- brain_drain

_{Eponysterical?

It's straightforward information theory, if you were to take a law, encode it in binary, then the set of all possible laws would form a what's called vector space (an algebraic structure). That's not a 'useful' way to think about the space of possible laws, in practice you would want to try to reduce the dimensionality and come up with a heuristic that places similar laws 'near' eachother. But the point is that even without a heuristic there are certain basic mathematical properties that apply to laws and you can use those properties to prove things about them.

In this case that you can take a 'random walk' through them, and thus you can say that taking a 'step' from one law, A to another, B increases the likelihood that eventually you'll get to a C if C is closer to B then A.

Not really that relevant to the thread, though, it makes much more sense to do something like 'grade' laws on various aspects of them qualitatively - like how much do they violate privacy, how unconstitutional are they, etc. If you do that I do think you can see that the 'slippery slope fallacy' means that you can't argue that if you go a little in one direction makes it more likely to go further in that direction.}
posted by delmoi at 4:17 PM on June 6, 2013 [1 favorite]

What's the harm in declassifying this stuff? Realistically. I see it providing us with a couple of things, first we can have a rational discussion as to if it is worth it or not. second we can start to look for corruption and misappropriation.

I really want to believe that there are a lot of well intentioned folks trying to keep things safe, but I can't help but think we just need to burn it down, defund NSA and Homeland Security, see how things really look and then in a few years decide if we want to spend money on that stuff again.
posted by Nelson69 at 4:19 PM on June 6, 2013

Greenwald and the Guardian on PRISM: NSA has direct access to tech giants' systems for user data, secret files reveal

I'm addicted to political news, and in particular Greenwald for the Guardian, but even with the outrage fatigue that daily political news consumption naturally warrants, this story still managed to chill me to my bones. Goddamn, the fucking banality of it all! A few clicks, some matching color schemes, some SmartArt graphics, and there you go: 44 pages of tidy PowerPoint charts with jaunty little corporate logos plastered across the top of each page.

I remember what it was like before GWB rolled into town. I remember when we did not collectively shrug at the notion of our government sending our volunteer military to engage in multiple poorly-defined and apparently unavoidably indefinite conflicts because "you're either with us or you're against us" and "they hate our freedom" and "we don't want the smoking gun to be a mushroom cloud." I remember when the fact that our government had chosen to do that did not inspire the acceptance of a host of encroachments and impingement on rights that had otherwise been respected for decades. I want a fucking do-over.
It's been sickeningly clear since 9/11 that something like this would come down the pike eventually, that it was a matter of when rather than if. Once everyone fell in line behind the USA PATRIOT Act save the singular hero who was (of course) recently ousted in favor of yet another milquetoast twit, you just KNEW that there was no way any subsequent president would ever willingly cede an inch of what ol' W had just scored, Democrat or Republican. So much power, all at once -- who could possibly turn it down?
The best part about living and voting through these years was that no matter how many representatives you called or protests you went to or letters to the editor you wrote or petitions you signed or riots you attempted to incite, no matter how much you were terrified of or moved to tears by all the lies that were being told and all the bullshit that was being spouted by your homeland to the rest of the world, ultimately? All you could do was watch it burn. Those were the days! And now here we are.

Minor national security-related quibble: When the article refers to the PRISM document as being "classified as top secret with no distribution to foreign allies," they mean "foreign nationals" -- NOFORN documents ~~cannot~~ are not supposed to be viewed by anyone who is not an American citizen, regardless of their clearance/access level, whose government they work for, or whether or not their country is considered to be allied with the United States. /pedant
posted by divined by radio at 4:21 PM on June 6, 2013 [4 favorites]

I really want to believe that there are a lot of well intentioned folks trying to keep things safe, but I can't help but think we just need to burn it down, defund NSA and Homeland Security, see how things really look and then in a few years decide if we want to spend money on that stuff again.

That's the thought that occurred to me earlier today. Every once and a while, we'll have some outrage over Total Information Awareness or another program of the day. Of course, promises are made that actions will be taken and legislation is passed to ban further funding for the program. Sooner or later, it pops up under another name and emerges that nothing really stopped or changed at all.

If there's an actual promise that this kind of spying is to be stopped, I don't know how we can believe it unless it comes with a proportionately huge reduction in spending.
posted by zachlipton at 4:42 PM on June 6, 2013

We keep getting mad at the symptoms but never treat the disease.
posted by Pope Guilty at 5:10 PM on June 6, 2013 [3 favorites]

It is absolutely true that a move in one direction makes it more likely that you'll end up further along in that direction in the future then you will if the step isn't taken.

Not if you are a pendulum, or at the bottom of the slope. And most systems in nature are circular/wavelike/self-limiting.

Slippery slope is almost invariably used to make people afraid, rather than arguing the subject at hand. "Don't step on the brake, you might never be able to start again!" "Don't answer the phone, you might not be able to hang up the conversation!" "What if I start peeing and never stop until I'm a pile of dust?"
posted by gjc at 7:24 PM on June 6, 2013

Oh, and BTW, the NSA is the largest power customer in Maryland, consuming as much power as the entire city of Annapolis. And they're building one of the largest data centers in the world in Utah. Over one million square feet.

Also: NSA Building $860 Million Data Center in Maryland
posted by homunculus at 7:25 PM on June 6, 2013

What's the harm in declassifying this stuff? Realistically. I see it providing us with a couple of things, first we can have a rational discussion as to if it is worth it or not. second we can start to look for corruption and misappropriation.

Unveiling corruption and misappropriation is exactly the reason why a whole lot of stuff doesn't get declassified - and is also the reason why a whole lot of stuff is classified in the first place. The reason of "National Security" is sometimes used genuinely. Sometimes.
posted by anonymisc at 7:35 PM on June 6, 2013 [1 favorite]

New York Times:

“The N.S.A. is kind of the crown jewel in government secrecy. I expect them to react even more extremely,” Mr. Greenwald said in a telephone interview. He said that he had been advised by lawyer friends that “he should be worried,” but he had decided that “what I am doing is exactly what the Constitution is about and I am not worried about it.”
-
The leak, he said, came from “a reader of mine” who was comfortable working with him. The source, Mr. Greenwald said, “knew the views that I had and had an expectation of how I would display them.”
-
Mr. Greenwald said he has had to get up to speed in the security precautions that are expected from a reporter covering national security matters, including installing encrypted instant chat and e-mail programs.

“I am borderline illiterate on these matters, but I had somebody who is really well-regarded actually come and physically do my whole computer,” he said.
posted by Drinky Die at 8:41 PM on June 6, 2013 [1 favorite]

I pretty goddamn shocked that Verizon even has the organizational capacity to turn over hundreds of millions of domestic phone calls to the NSA, seeing as how they can't seem fix my bill even when I am actively trying to get them to take my money.
posted by T.D. Strange at 9:25 PM on June 6, 2013 [6 favorites]

Rachel Maddow: Congress regularly complicit in US spy programs
posted by homunculus at 9:37 PM on June 6, 2013 [1 favorite]

We keep getting mad at the symptoms but never treat the disease.

We can start by respecting the ideals of a democracy and not treating third-party options like pariahs. We are here today precisely because we've chosen the uniparty.
posted by Blazecock Pileon at 10:13 PM on June 6, 2013 [4 favorites]

JHarris: "Also:
(Cries to him himself he voted for Obama first term.)

It is unfortunate that Obama hasn't been the sterling defender of civil rights we would like him to be. He's done many good things too however. One of the biggest is, he wasn't someone much worse. It's a shame that history is probably going to register him as being firmly a hold-the-course president, with that course firmly set by the old guy into the reefs, but so be it."

Yeah, but he promised us a shift in civil rights by saying government would be more transparent and would have greater accountability.

My ass.
posted by Samizdata at 3:01 AM on June 7, 2013

We can start by respecting the ideals of a democracy and not treating third-party options like pariahs. We are here today precisely because we've chosen the uniparty.

See, an awful lot of what's stupid about liberalism is the fact that reality doesn't operate on the level of individuals. Sure, sometimes individuals can accomplish quite a bit, but the world operates on a higher level, the level of systems and structures and infrastructures, with individual achievements and accomplishments being enabled by those structures. But liberals? Liberals only see individuals when they oughta be looking at structures, and that's why liberal ideas about changing things are doomed to chase after symptoms.

Classic example- I'm waiting in line for a burger maybe a year back, talking to my roommate, and I complained about the heat, saying "You know, I don't remember agreeing to this 90 degrees shit." The guy ahead of me turns around and starts in with well you own a car, don't you? and what's your carbon footprint? and all that, and that's just about the peak of what I'm talking about. The cause of runaway global warming isn't individual private citizens owning cars, it's a global commercial and industrial superstructure built around the nonstop, ever-increasing burning of fossil fuels. It's not nearly all Americans owning cars quite so much as it is that nearly every American lives someplace that is designed to be completely uninhabitable without one. I could sell my car and move to the woods and reduce my carbon footprint to zero, and the impact would be precisely dick, because the problem isn't on the individual level, it's on the systemic level. The proper level to consider with global warming is reforming the structures we individuals live in, enabling and encouraging changes both systemic and individual. You can make individual changes, but they're just masturbatory nonsense that accomplishes nothing but a warm feeling of superiority over those horrible people with their carbon footprints.

This brings me around to the concept of third parties ("at long last!", I hear you saying) because the American system is a classic example of Duverger's Law in action. We have a winner-take-all system, and winner-take-all systems generally encourage the creation of two-party states. Now, it's certainly true that the Dees and the Arrs do their best to shut other players out of the game, but even if they hadn't, they probably wouldn't be facing much competition.

Assume for a moment (and we're about to step into the Political Science version of Physics 101 World, which is inhabited solely by smooth, frictionless spheres suspended in a vacuum) a polity that has two hundred voters in it, roughly evenly distributed along a political scale going from -100 on the left to +100 on the right . (We're pretending that the bullshit left-right dichotomy exists- Physics 101 World, remember). So you've got 200 people, with a hundred of them being left and a hundred being right. Also the political system is first past the post, winner takes all, like in the US. Election time comes, and there are two parties on the left and one on the right. So the left parties are splitting a hundred votes between them, and the right party gets a hundred votes, subject of course to some drift around the middle. See the problem? Third parties are rightly pariahs because the most impact they can have at this time is making things easier for their enemies.

This is the problem with advocacy of third-party voting: it calls for individual actions which are, without the structure to enable them, pointless and even counter-productive, producing nothing but smug superiority at having not voted for the lesser of two evils. If you're telling people to vote for third parties, rather than calling for the reformation of the system to make third-parties viable, you're engaging in fucking liberal bullshit and you might as well go to an anti-war march- it won't stop any wars, but you might get laid, and that's way more than you'll accomplish voting third party.
posted by Pope Guilty at 3:16 AM on June 7, 2013 [9 favorites]

Yup. The Tea Party isn't actually a third party - they organized to effect (batshit crazy) change within the Republican Party, and have been remarkably successful in getting their agenda acknowledged and acted upon by the GOP. The left, such as it is in this country, needs to take the fucking hint - voting Green Party ain't gonna get you shit.
posted by Slap*Happy at 4:28 AM on June 7, 2013

The left, such as it is in this country, needs to take the fucking hint - voting Green Party ain't gonna get you shit.

Democrats are in charge now; voting for them ain't getting me shit either. The left needs to align with whatever elements of the right it can stomach and agitate for a new Constitution. This one's busted.
posted by gerryblog at 5:23 AM on June 7, 2013 [1 favorite]

I think the Tea Party was actually, long-term, fairly foolish, since it's basically helped to chase people who aren't batshit crazy out of the GOP. Of course, it's not like entrenched economic interests that want to exploit the poor don't have a home in the Democratic Party, and if I were in a Vampire: the Masquerade/Deus Ex/Shadowrun "wheels within wheels, maaaan!" sort of mood I might almost suspect it of being a deliberate long-term exit strategy to drive the GOP out of existence and establish the Democrats as a center-right ruling party by flooding it with what used to be the GOP.
posted by Pope Guilty at 5:25 AM on June 7, 2013 [1 favorite]

The tea party is a proof of concept that the voters can take back control of their party. Its turned out that, surprise, the Republican voters are crazy idiots so it has in many ways been counterproductive for them. You could use the same methods to get some really good liberals in office.

The problem remains the Senate though. You will not get 65-70 good liberals in the Senate which is apparently what you will need to actually pass liberal legislation.
posted by Drinky Die at 6:15 AM on June 7, 2013 [1 favorite]

Speaking of public opinion, citizen lobbying, etc., this bit from the WashPost article is interesting:

Government officials and the document itself made clear that the NSA regarded the identities of its private partners as PRISM’s most sensitive secret, fearing that the companies would withdraw from the program if exposed. “98 percent of PRISM production is based on Yahoo, Google and Microsoft; we need to make sure we don’t harm these sources,” the briefing’s author wrote in his speaker’s notes.

First of all, we need to make sure that this harms those sources. (Who so far insist that they only turn over documents in response to lawful requests, which given the breadth of the FISA order we've seen is probably accurate but meaningless.) But you could read this cynically to suggest that public opinion is more important to the NSA in terms of how it affects their corporate partners than how it affects the political process.

Also this bit from WashPost:

Eventually Inspector General I. Charles McCullough III wrote Wyden a letter stating that it would violate the privacy of Americans in NSA data banks to try to estimate their number.

posted by jhc at 6:46 AM on June 7, 2013

Regarding the PRISM program, one thing to keep an eye on is that the NSA says at the end of the Guardian article that it's operating under a more limited FISA provision than the one authorizing the Verizon program. The Verizon warrant is under FISA s. 502 (50 USC § 1861) which contains incredibly broad coverage over documents relating to protection from international terrorism. The NSA says that it only requests PRISM computer records under FISA s. 702 (50 USC § 1881a), which in theory means they have to be reasonably believed to be linked to a foreign citizen outside the US.

Of course, since it runs without intervention from the tech companies, they could use it for anything they want; and we have no idea if they also use it pursuant to a s. 502 warrant, which would let them "lawfully" go far beyond the use they've admitted to.
posted by jhc at 7:17 AM on June 7, 2013

The Tea Party is proof that a bunch of deep-pocket activists and well-connected Republican party apparatchiks and consultants can organize a bunch of conservative voters to vote for conservative politicians who will support deep-pocket friendly policy.

It's not a model progressives can copy.
posted by notyou at 7:50 AM on June 7, 2013

BobbyVan: "Reuters: Republican chairman of House Intelligence Committee says phone records stopped "significant" terrorist attack within recent years"

Ron Wyden: Yeah, not so much.
posted by tonycpsu at 8:00 AM on June 7, 2013

BobbyVan: "Author of Patriot Act: FBI’s FISA Order is Abuse of Patriot Act "

Jim Sensenbrenner’s Horseshit Claims of Innocence

In other words, Sensenbrenner points to doctored proof he has been briefed on this secret program, but doctors it in such a way as to support his claim he never knew about this.

Not to mention that a series of DOJ Inspector General reports included classified appendices describing these secret collection operations.

Thus far, Sensenbrenner might just be disingenuous and stupid.

But it’s worse than that.

...

posted by tonycpsu at 8:04 AM on June 7, 2013 [1 favorite]

[PRISM] is subject to oversight by the foreign intelligence surveillance court, the executive branch, and Congress. It involves extensive procedures, specifically approved by the court, to ensure that only non-US persons outside the US are targeted, and that minimise the acquisition, retention and dissemination of incidentally acquired information about US persons." Guardian

Well, as a non-US person outside the US, all I want to say at the moment is, Fuck you and your hairdresser.
posted by Mister Bijou at 8:29 AM on June 7, 2013

The left, such as it is in this country, needs to take the fucking hint - voting Green Party ain't gonna get you shit.

Except, of course, the satisfaction that comes from saying "I didn't vote for this shit" and the knowledge that you voted for what you wanted. Maybe that doesn't mean much to you, but it's important to some of us.

It's also not like voting democrat is getting people shit, either....well, literal shit, I guess.
posted by nTeleKy at 8:32 AM on June 7, 2013 [2 favorites]

nTeleKy: "well, literal shit, I guess."

Yes, the Republicans did keep us safe from the Poop Cruise menace.
posted by tonycpsu at 8:43 AM on June 7, 2013

For more on the (un)constitutionality of metadata snooping, I encourage folks to check out US v. Jones, which BobbyVan mentioned briefly upthread.

This is a Jan. 2012 case where police attached a GPS to the underside of a car for four weeks without a warrant. Five justices said that a search can violate the Fourth Amendment either by physical intrusion or by intrusion on reasonable expectations of privacy. Since this case involved a physical intrusion, they saved reasonable expectations of privacy for another day.

But five justices also said that use of GPS data can constitute an unreasonable search even if there is no physical intrusion.

Here's J. Sotomayor, who endorsed both camps:

With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. ... I agree with JUSTICE ALITO [and GINSBURG, BREYER, and KAGAN] that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

In other words, five justices say that aggregated information about where you went in public, taken from third parties with whom you voluntarily shared that information, can add up to an unconstitutional intrusion on privacy.

Sotomayor explains clearly why that would be:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

So it's clear that Sotomayor at least would not consider Smith dispositive in a Fourth Amendment challenge to the FISA warrant -- and given the rationale of the other four, I don't think they would either. This doesn't make the warrant inherently unconstitutional, but it subjects it to a "reasonable expectations of privacy" test that I believe it ought to fail. Up until now, it's been impossible to raise this argument with regards to FISA warrants, because the people who could raise it were not allowed to prove that it was happening. That's one reason that proving what we suspected but could not prove before is exciting.
posted by jhc at 9:11 AM on June 7, 2013 [8 favorites]

Sotomayor's claim that "People disclose...the URLs that they visit...to their Internet service providers" is factually incorrect unless those URLs are on their ISPs' own servers, or the ISPs are actively sniffing traffic. Other than that, the ISPs don't get any info besides a DNS lookup and a connection opened to a remote IP address on a particular port.

So you do have a reasonable expectation that your ISP does not know the URLs you are visiting beyond their own network.
posted by one more dead town's last parade at 9:47 AM on June 7, 2013

I'm shocked to see David Simon backing Obama on this.
posted by gerryblog at 9:56 AM on June 7, 2013 [2 favorites]

One silver lining to the ubiquity of the program: Amnesty International doesn't bar a lawsuit now that we have the President confirming that yes, you are being targeted.
posted by Holy Zarquon's Singing Fish at 10:19 AM on June 7, 2013

Here's a link to an excerpt from an 2007 Obama speech on how to fight global terrorism
"No more spying on citizens who are not suspected of a crime"
posted by stevedawg at 11:52 AM on June 7, 2013

For the record, the New York Times went back and edited their editorial to change "The administration has now lost all credibility." to "The administration has now lost all credibility on this issue."

That's probably a more sensible thing to say -- "the administration" isn't a unitary thing, and neither is credibility. But it does make my Facebook status yesterday look really disingenuous.
posted by jhc at 12:08 PM on June 7, 2013

Was President Obama the leaker?

I specifically said that one of the things that we’re going to have to discuss and debate is how were we striking this balance between the need to keep the American people safe and our concerns about privacy, because there are some trade-offs involved.

And I welcome this debate. And I think it’s healthy for our democracy. I think it’s a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.

Maybe last week even!

Spy chief Clapper denies misleading Congress about spying on Americans

Wyden: "And this is for you, Director Clapper, again on the surveillance front. And I hope we can do this in just a yes or no answer, because I know Sen. Feinstein wants to move on.

"Last summer the NSA director was at a conference and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, '... the story that we have millions or hundreds of millions of dossiers on people is completely false.'

"The reason I'm asking the question is, having served on the committee now for a dozen years, I don't really know what a dossier is in this context. So what I wanted to see is if you could give me a yes or no answer to the question: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?"

Clapper: "No, sir."

Wyden: "It does not."

Clapper: "Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly."

Wyden: "All right. Thank you. I'll have additional questions to give you in writing on that point, but I thank you for the answer."
posted by Drinky Die at 12:08 PM on June 7, 2013 [1 favorite]

On whistleblowers and government threats of investigation

Ever since the Nixon administration broke into the office of Daniel Ellsberg's psychoanalyst's office, the tactic of the US government has been to attack and demonize whistleblowers as a means of distracting attention from their own exposed wrongdoing and destroying the credibility of the messenger so that everyone tunes out the message. That attempt will undoubtedly be made here.
posted by Blazecock Pileon at 12:36 PM on June 7, 2013

Would you be okay with such invasions of privacy knowing that you had such safety?

Nope.
posted by edeezy at 2:28 AM on June 6 [127 favorites +] [!]

I can't tell if you, any many others, are just outright refusing to enter into a conversation with me, or are being honest and would rather that countless American lives be lost just so that their "privacy" isn't infringed upon.

I'm not saying that current government practices actually do safe countless American lives, I'm merely trying to understand the opposition's position, which is why I posed this hypothetical situation. I am a hard pragmatist. And so I have difficulty understanding the reasoning behind an unconditional inviolable right to absolute privacy (and the contradictions this poses when one lives in a society, where your privacy is constantly infringed upon already (e.g.: Verizon already has the metadata on who you call and when), and how this conflicts with other beliefs commonly held by people (such as progressive taxation).
posted by SollosQ at 12:36 PM on June 7, 2013

Countless? Trust me, I can count pretty high, so why don't you throw a real number out there instead of just making stuff up. One would be a good start and you can go from there.
posted by JackFlash at 12:54 PM on June 7, 2013 [1 favorite]

New NSA logo
posted by homunculus at 1:39 PM on June 7, 2013 [2 favorites]

I'm merely trying to understand the opposition's position, which is why I posed this hypothetical situation.

We can do better than run our country like an episode of 24.
posted by Blazecock Pileon at 1:48 PM on June 7, 2013 [2 favorites]

I just got an interesting constituent newsletter from Rep. Capuano. Apologies for the long quote, but I don't think this is online to link to yet:

[Summary of the Verizon warrant and PRISM.] According to reports, the PRISM program is not at this time being used on U.S. citizens.

Even if you can accept the government collecting the number and length of every call you make, are you really comfortable with them having the ability to catalogue all the YouTube videos you watch, the Netflix movies you download, or the web pages you visit? It seems that our own government has access to every phone call, email and internet search for all Americans at every minute of every day.

Like most Americans, I am absolutely outraged. But, if you’re a long time subscriber to these newsletters, you probably already knew that. You also probably know that I voted against passage of the so-called “Patriot Act” and every reauthorization since it first passed in 2001.

Before I go any further, I feel compelled to remind you that I was an early and strong supporter of President Obama. I am still amongst the strongest Obama supporters in the House of Representatives. Nonetheless, I cannot remain silent out of some sort of misplaced loyalty to President or party when I believe that basic American rights have been intentionally trampled.

I know we live in a dangerous world and there is work to do to prevent terrorists from harming us. But we must find a balance between giving law enforcement the tools they need to track and indentify terrorists and protecting the very liberties upon which our great country was founded.

This data collection has reportedly been going on for 7 years. The length of time that this has been going on and the staggering amount of data collected on every Verizon customer amounts to an incredible overreach. Even if you’re not a Verizon customer, there is clearly reason for concern. Who really believes that Verizon is the only telecommunications company required to turn over this data?

I have always believed that we must give law enforcement the tools they need to pursue criminals. However, we can do that and still protect civil liberties.

It is time for those of us who support President Obama to speak up. I believe he is a good man and has been a good President. However, I think his Administration has allowed their concern for our safety to lead them down the wrong path. If we remain silent, those who have always wished him to fail on every point stand a better chance of winning the hearts and minds of America and we will all be worse off for it. It is possible to support President Obama and yet disagree with him on certain issues – this is one of those times.

(Emphasis mine.)

What's missing here is ... what's next? What does speaking up look like?
posted by jhc at 2:05 PM on June 7, 2013 [4 favorites]

Bruce Schneier: What We Don't Know About Spying on Citizens: Scarier Than What We Know. The NSA's surveillance of cell-phone calls show how badly we need to protect the whistle-blowers who provide transparency and accountability.
posted by homunculus at 2:13 PM on June 7, 2013 [1 favorite]

God, that David Simon piece. I'm kind of glad I never got around to the fifth season of The Wire.
posted by dirigibleman at 2:34 PM on June 7, 2013

I guess Top Secret leaks do come in threes: Obama orders US to draw up overseas target list for cyber-attacks
posted by smackfu at 2:39 PM on June 7, 2013

I liked this quote from the Guardian article:

Once humans develop the capacity to build boats, we build navies. Once you build airplanes, we build air forces.

I think it is wrong. I believe boats preceded navies by 10's thousands years. But it illustrates the crux of the problem

Technology moves ahead. Criminals or enemies adopt it like Bonnie and Clyde adopted the automobile or Pablo Escobar adopted the cell phone. The authorities react. Since the authorities determine the rules of engagement, they ratchet up for themselves a little tactical advantage every single time. Would the founding fathers be aghast that the Feds have all of these records on us? Of course they would. The wording of the fouth amendment seems straigtforward to me in word and in intent. But it's kind of tough shit anyway for the citizen who wants to be free from government spies in his living room. They are here and there is no escape unless you want to go build yourself a cabin in Alaska.

Ze Frank needs to do a sad computer nerd video.
posted by bukvich at 3:05 PM on June 7, 2013

I am a hard pragmatist. And so I have difficulty understanding the reasoning behind an unconditional inviolable right to absolute privacy [given corporate privacy invasions] and how this conflicts with other beliefs commonly held by people (such as progressive taxation).

I can give you my view as a rabid constitutional lawyer. I don't know how well it fits other people's reasons.

America was founded as part of an ongoing shift in power between citizens and government. Our principle of individual freedom does not mean that government should be powerless. It means that government should exercise its power according to the rule of law, that the rights citizens do have should be protected, that the structures of government should check the power of individual leaders. It means that the king is a subject of the law, not above it.

These principles developed out of hard experience. For example, out of American colonists' outrage over British writs of assistance:

In general, customs writs of assistance served as general search warrants that did not expire, allowing customs officials to search anywhere for smuggled goods without having to obtain a specific warrant. These writs became controversial when they were issued by courts in British America in the 1760s, especially the Province of Massachusetts Bay. Controversy over these general writs of assistance inspired the Fourth Amendment to the United States Constitution, which forbids general search warrants in the United States.

There were literally customs agents wandering around searching anything they wanted, because a judge gave them a piece of paper saying they could. Our founders developed the pragmatic view, from experience, that a country cannot protect the well-being of its citizens if warrants enforced by the executive are not individually reviewed by the judiciary. Same for the rights to trial in an open courtroom, to confront witnesses against you, to publish and critique what the government does, to keep government agents out of your house -- they weren't derived from abstract philosophy, they came out of hard-won experience about what it takes to live a good life when the state has a monopoly on force.

Now here we have, in FISA, a court that does not publish its decisions. A court whose arguments are closed to the public. A court that issues general warrants applicable to all Americans, renewed as a matter of course four times a year. A ruling that you cannot present evidence in regular court that this new court violated your Fourth Amendment rights. A law that anyone who knows what this court does cannot speak of it. A law that when the executive asserts that secrecy is necessary, this new court has to take that finding as conclusive. Legislators who hold secret hearings, who believe that the executive is reading the law wrong but cannot tell their own constituents what's happening without violating their oaths of office.

This isn't about whether or not there can be search warrants. Our right to privacy never has and never will be unconditional or inviolable. This is about whether or not the legislature or court still check the power of the executive. Whether or not there is a rule of law. Whether or not we can know what our government is doing enough to assert our individual rights. Pragmatically, I can no longer draw a line around my house and say, I know under what terms and circumstances the government can cross this line. I know what my recourse is if they break the rules. Living in a country without those guarantees is the opposite of living in safety. You can't improve my safety by removing them.
posted by jhc at 3:09 PM on June 7, 2013 [12 favorites]

Well, for me:

I am unwilling to discuss a hypothetical where thousands of lives are saved by domestic wiretapping because I don't believe that hypothetical describes the real situation. To the extent there are lives to be saved, I believe there are better approaches to stopping terrorism than domestic wiretapping. I also fear that normalizing behavior like widespread wiretapping for terrorism will make it easier to expand similar methods into other areas of law enforcement where they really don't belong.

I completely agree with this. I also don't think this hypothetical situation describes the real situation, but I just want people to realize that maybe we should be framing this issue differently. Perhaps we should be exploring how effective these measures are, and look at the effectiveness of other measures. I don't like this abstract talk of privacy, I'd rather we ground ourselves in pragmatics at reducing the threat of terrorism.
posted by SollosQ at 5:10 PM on June 7, 2013 [1 favorite]

Jane Mayer: What’s the Matter with Metadata?
posted by homunculus at 5:18 PM on June 7, 2013

We need to loudly call out the bullshit of this big data nonsense. If it worked we would have stopped the Boston bombers. We are spending billions of dollars a year to spy on thousands of people who are probably not guilty of anything. Old fashioned community policing is just as effective and a lot less invasive.
posted by humanfont at 5:33 PM on June 7, 2013 [1 favorite]

EFF: NSA Spying Through The Years
posted by anemone of the state at 6:57 PM on June 7, 2013 [1 favorite]

The thing that frustrates me above all else is that I have no one to turn to ask for this to be investigated, prosecuted and fixed. The president, congress and the judiciary have all decided that spying on us is OK.
posted by letitrain at 7:28 PM on June 7, 2013 [1 favorite]

Speaking of countable numbers of people killed there was another mass shooting just now, with six people killed, but I guess if he wasn't a Muslim it wasn't "terrorism" and so no big deal we certainly wouldn't want to take away people's semiautomatic rifles or anything like that.

On the other hand we absolutely need to give up give up all our privacy to stop Muslims from randomly killing us.
posted by delmoi at 8:24 PM on June 7, 2013 [4 favorites]

So can we march yet or what?
posted by Big_B at 8:39 PM on June 7, 2013

We can always march. But how many will be marching with us?
posted by JHarris at 9:05 PM on June 7, 2013 [1 favorite]

The thing that frustrates me above all else is that I have no one to turn to ask for this to be investigated, prosecuted and fixed. The president, congress and the judiciary have all decided that spying on us is OK.

It does make one feel like the right-wing bullies have won, having destroyed everything that makes this country good.
posted by Blazecock Pileon at 9:17 PM on June 7, 2013

There are no guards to watch the guards. As far as the government is concerned, the law exists merely to perpetuate the government and to legitimize its abuses- and when the government breaks the law, the only person to get in trouble is the person who pointed it out.

In this current climate, the only viable avenues for change, at least at first, are the ones that they will (unjustly) try to throw the book at you for. Bradley Manning, the PRISM leaker, and John Kiriakou are just a few examples.
posted by anemone of the state at 10:47 PM on June 7, 2013 [1 favorite]

Every Breath You Take
posted by Mister Bijou at 11:18 PM on June 7, 2013 [1 favorite]

Obama in 2007: No more spying on citizens who are not suspected of a crime
posted by phaedon at 11:20 PM on June 7, 2013 [4 favorites]

Speaking of the Prism leaks, here they are (Personal Dropbox).
posted by Samizdata at 11:22 PM on June 7, 2013 [1 favorite]

We need to loudly call out the bullshit of this big data nonsense.

But big data isn't some sort of concept or technology that sprung out of the post-9/11 national security craze, ex nihilo. The pre-requisite infrastructure, technology, and culture has been building for decades. All the data collected on us, all the data exhaust emitted, all the tweets, supermarket rewards programs, and electronic health records are all information that can potentially be abused.

I mean, at this point, if the government promised to not surveil us would anyone believe them? Would any sort of encryption or fakeblock be 100% impenetrable?

Maybe the only absolute way to stop big data is to not have any to begin with.
posted by FJT at 2:59 AM on June 8, 2013

Here I am again, with a difficult question. I am interested in seeing how this conversation plays out.

I think it should be obvious that I am not on Ironmouth's side in this, or those of anyone who thinks the government should as a matter of course survey the mass of communications of its citizens looking for terrorists or anything else. But let's play devil's advocate.

Let's say you were elected President, and before the election you campaigned on a no domestic spying platform, much like Obama did before his first term. Let's say you won, and on the first days of your administration you are briefed by the assorted security heads of the FBI, CIA and NSA about current security programs, their successes, where they'd like to go in the future, and what they think the results of not enacting those programs will be.

Of course these guys are going to put the best possible face on their efforts, they're going to cite statistics that, because they're all national secrets, haven't been held up to review by anyone who hasn't already drunk a certain amount of National Security Kool-Aid. But at the same time, they will probably also be able to point out concrete examples of terrorist plots foiled, and lives saved because of their actions, and they'll certainly push that button hard. "Isn't any amount of effort," they'll cunningly ask, "worth even one life saved?"

How would you react to that? What would you say to them? Would you have the will to shut down those programs, or expose them to the public? I like to think I would, but I don't think Obama was on these guys' side before he was elected, and he definitely is now, and somehow the one state became the other.

What I'm asking is: if you were in a position of power and had real power to make these decisions and live with the consequences, what would you do?
posted by JHarris at 4:45 AM on June 8, 2013 [3 favorites]

JHarris: “What I'm asking is: if you were in a position of power and had real power to make these decisions and live with the consequences, what would you do?”

When Dianne Feinstein and Saxby Chambliss make common cause to defend the NSA, my conclusion is that elected officials are no longer meaningfully in charge of the security apparatus of the United States.
posted by ob1quixote at 7:10 AM on June 8, 2013 [1 favorite]

my conclusion is that elected officials are no longer meaningfully in charge of the security apparatus of the United States.

which is why the whole privacy vs. security debate is a red herring. the issue is that the US built a killer robot called the "National Security Act of 1947" to defeat the Soviets. The Soviets are gone but the robot lives on and is out of control.
posted by ennui.bz at 7:44 AM on June 8, 2013 [3 favorites]

What I'm asking is: if you were in a position of power and had real power to make these decisions and live with the consequences, what would you do?

There's a basic unknowable question here: was Obama given some secret information that, if it were given to me, would make me like the way he handled this? Or was he simply given power, and giving up power (and taking away power from the people he needed to work with) turned out to be unattractive? If John McCain had won, but Obama was given the information he has now, would he have wanted McCain to do things the same way he did?

Once you accept that there will be an elaborate security apparatus with billions of secret documents accessible only to the person in charge, this black box is unavoidable. Whatever that person does could hypothetically be the best choice given the unique information they have, from writs of assistance to invading Iraq to dating interns. How can you possibly criticize anything they do? And yet we know that kind of power has to be checked.

I hope what I would do in that position of power is to expose the contours of my power, even if the operational details had to be secret. If I was fully convinced that it was worth the tradeoff to seize private information about every American and keep it in a computer to keep them safe, and there was no better option, then yes, do that -- but tell them it's happening and let them challenge it in court or at the polls. The justification of saving lives wears thin if you have to keep your work secret because otherwise the people you're trying to save would stop you.

There's a spectrum of secrecy here from "you all should know that I have a copy of all your phone records" to "you should know that I reserve the right to copy your phone records" to "you should know that I don't consider articulable facts a prerequisite to seizing some kinds of data" to "you should know that I read my Patriot Act powers broadly" to "the law's on the books, you guess what I'm doing." Arguably even having the law on the books where any terrorist could read it is already making us less "safe," and it just gets worse from there. There's probably no absolute way to draw a line at the correct level of disclosure.

But thinking in terms of procedural fixes -- separation of powers, checks and balances, the stuff the founders relied on to deal with the exact questions we're talking about -- maybe what I want is robust opposition. Like, suppose legislators who were briefed on this program felt that it was wrong, and should be public information. Are they allowed to do that? I'm not sure the executive should be able to refuse any sort of information to the legislature (including the opposition party), or forbid them to share the information with the public. Or on the judicial side, I'm not sure there should be any sort of state secrets privilege that excludes judges and lawyers as opposed to clients (just as there is discovery in some civil cases that's accessible to lawyers but not their clients). I don't know all the implications of those ideas, just thinking out loud.
posted by jhc at 9:41 AM on June 8, 2013 [1 favorite]

What I'm asking is: if you were in a position of power and had real power to make these decisions and live with the consequences, what would you do?

There's a reason why almost to a man, federalist or anti-federalist, our founding fathers were wary of a strong executive. Not to mention their distrust of standing armies and their attending accouterments.

What would you say to them?

The needs of the many outweigh the needs of the few. The number of people who may or may not be killed by terrorist attacks is a small price to pay for the preservation of our democratic systems and principles. There's also the fact that these terrorist attacks are for the most part directly related to our military's murderous actions in Muslim countries. So for the government to ask us to give up our civil liberties because they think it's best to indiscriminately bomb all who oppose their narrow interpretation of the "national interest" is pretty hypocritical to say the least. The same president who is now claiming right to data mine all citizens is also the same president who claims the right to assassinate anyone whom he deems necessary. These two things are intimately linked and really neither can be understood without the other.
posted by AElfwine Evenstar at 9:51 AM on June 8, 2013 [2 favorites]

Try picturing Matt, Jessamyn and the other mods talking over whether to spy on us on an ongoing basis or go to prison for us. That's what this is.

I'm kind of pretty sure I know where Jessamyn stands on this, at least.
posted by SMPA at 10:48 AM on June 8, 2013

Speaking of the Prism leaks, here they are (Personal Dropbox).

Where is the document with the slide from Glenn Greenwald's article (PRISM/US-984XN)? The only .PPT in that archive is from the 2010 EA Conference.
posted by anemone of the state at 11:03 AM on June 8, 2013

jhc, I agree with all that. I think having the discussion out in the open is essential. It's easy to say "but that will cause a media circus," but that's the nature of democracy. And it also means being able to crowd source the fact-checking, to actually interrogate those secret figures, which isn't being done today. Who knows how numerate and savvy Obama is to statistical manipulation? That's one of the greatest problems with secrecy; together we can be very smart, but a single person can be amazingly dumb if the fact falls outside his area of knowledge.

AElfwine Evenstar, valid points. But the secrets people will probably counter, concerning the idea that the Muslims have valid arguments, that we have to look at this realistically, that we didn't make the mistakes of past administrations but we still must live with them, and react to them in a way that saves the most lives. How would you counter that?
posted by JHarris at 11:12 AM on June 8, 2013

Out of curiosity, has anyone else here bothered to send messages to or call the President, their Senators, their congressional representatives, and/or the local US embassy about this?

I mean, if they're tracking everything we say and do anyway, we might as well at least say it directly to them. Rather than just complain in a thread on the blue, I mean.

(By the way, you can also contact the House and Senate committees directly: you know, House Oversight and Government Reform, Senate Select Intelligence, Senate Homeland Security and Government Affairs, etc. Heck, you can even comment to the Department of Justice, if you feel like it.)
posted by SMPA at 11:56 AM on June 8, 2013 [3 favorites]

I am skeptical that in a world of billions of phone calls, SMS, emails amd social media updates each day this system can actually deliver on its promise of finding terrorists. Look at the accuracy of spam message classifiers and other data mining engines. If we had an algorithm that could be trained to classify messages as terrorist/not terrorist with 99.99% accuracy in a world of ten billion messages; we'd have tens millions of messages that were incorrectly assigned.
posted by humanfont at 1:53 PM on June 8, 2013 [1 favorite]

AElfwine Evenstar: "There's a reason why almost to a man, federalist or anti-federalist, our founding fathers were wary of a strong executive."

Correct, but this is more of the legislative branch choosing to weaken itself rather than an inherently strong executive branch usurping power. The way the rules were drawn up, only Congress has the power to declare war, and they are also in a position to engage in any amount of oversight of clandestine operations that they see fit. The problem is that these foreign policy decisions are thorny, complicated, and very high stakes, so they have a strong political incentive to abrogate their responsibility and let the guy who will be gone in a maximum of four or eight years make the tough calls. Over the years, this has led to the current situation where only a tiny fraction of Congress ever gets even the most vague outlines of what's going on, and even those who are privy to all of the details don't want to know all of them. The fewer members of Congress who are fully briefed, the less electoral peril if the situation goes tits-up.

It seems to me that it's actually easier to solve a "constitutional crisis" type of problem where two co-equal branches are fighting over power than it is to figure out this kind of mess. At least with a power struggle, eventually one of the branches gets what it wants (or surrenders), and the fighting is out in the open, with each side making their case to any camera or microphone they encounter. With something like this, nobody ever hears the disagreement, because power is silently handed over (with the side handing over the power always reserving the right to bitch if things go south, of course.)

I don't really know what the solution is when Congress has the power to stop these activities but chooses not to out of a desire to avoid accountability. Perhaps term limits for legislators would help reduce their "don't rock the boat" tendencies, but term limits also create many other problems. Counting on Tea Party-style political pressure or do-or-die primaries doesn't seem promising, because the structure of Congress itself would have to change in order to have more members briefed on the programs. I think Sens. Wyden and Udall will be absolutely essential to any progress being made, because they seem to take their oversight responsibility seriously, and can't be discredited with accusations of harboring a partisan grudge against the President. It will be interesting to see if they start taking their case directly to the public in the coming weeks.
posted by tonycpsu at 2:01 PM on June 8, 2013 [2 favorites]

humanfont, in practice that's not how such a system would be used. Ideally they will probably find some other indication that someone is a terrorist first, then go to the archives and find substantiating evidence and other leads from that.

Of course, sometimes people are misidentified, and by checking phone records and email they could end up mistaking your friends for terrorists too. And this of course makes the assumption that these systems won't be misused either for official or personal use, which they almost certainly will be, with time.
posted by JHarris at 2:17 PM on June 8, 2013

It's been fun to track the various parallels here to our anti-democratic archetypes. For example, the claim that "it would violate the privacy of Americans in NSA data banks to try to estimate their number" was properly Orwellian -- that's the linguistic move we keep that term around for. But I haven't been able to find a proper Catch-22, until this from the EFF:

In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency's surveillance under the FISA Amendments Act to be unconstitutional. Significantly, the surveillance at issue was carried out under the same controversial legal authority that underlies the NSA’s recently-revealed PRISM program.

EFF filed a suit under the Freedom of Information Act in August 2012, seeking disclosure of the FISC ruling. Sens. Ron Wyden and Mark Udall revealed the existence of the opinion, which found that collection activities under FISA Section 702 "circumvented the spirit of the law” and violated the Fourth Amendment's prohibition on unreasonable searches and seizures. But, at the time, the Senators were not permitted to discuss the details publicly. Section 702 has taken on new importance this week, as it appears to form the basis for the extensive PRISM surveillance program reported recently in the Guardian and the Washington Post.

The government has seeked to block EFF’s FOIA suit by arguing that only the FISC, itself, can release the opinion. In an effort to remove that roadblock, EFF filed a motion with the FISC on April 22 seeking the surveillance court’s consent to disclosure, should the document be found to be otherwise subject to release under FOIA. In its response filed with the FISC today, the government offers a circular argument, asserting that only the Executive Branch can de-classify the opinion, but that it is somehow prohibited by the FISC rules from doing so.

The government’s argument is guaranteed to make heads spin. ...

posted by jhc at 3:04 PM on June 8, 2013 [4 favorites]

anemone of the state: "Speaking of the Prism leaks, here they are (Personal Dropbox).

Where is the document with the slide from Glenn Greenwald's article (PRISM/US-984XN)? The only .PPT in that archive is from the 2010 EA Conference."

What I posted was a link to an untouched archive taken from an Anon listed mirror. This is the Anon leaks, which I should have been clearer about.

Sorry about that, folks.
posted by Samizdata at 3:45 PM on June 8, 2013

Ummm, THESE ARE, even.
posted by Samizdata at 3:59 PM on June 8, 2013

Boundless Informant: the NSA's secret tool to track global surveillance data
posted by homunculus at 4:16 PM on June 8, 2013

An Imagined Letter From One President to Another

P.S. You will be happy to know The New York Times is now attacking me for all the same stuff I attacked you on. Crazy.

posted by SMPA at 5:51 PM on June 8, 2013

SollosQ: "What I find infuriating is how this whole debate is framed in regards to privacy.

Let me present a hypothetical world for you: Imagine that domestic wiretapping and other forms of privacy invasion, could save thousands, or maybe even only hundreds, of U.S. lives a year, as well as keeping morale high (in the absence of hundreds of deaths a year by terrorism). Would you be okay with such invasions of privacy knowing that you had such safety?"

This is hilarious because actually I think the government *loves* the debate being privacy vs. safety because I think the average voter, when pressed, will choose "safety" every time. And the truth is that isn't what we're actually being given a choice between here. The conflict is not about the government wanting us safer; it's about them wanting more control. If they wanted us safer they would decriminalize a bunch of drugs (or, at the very least, marijuana) so that drug lords wouldn't have the influence they do now. They would invest all of their money into preventing crime through better education and through raising up a generation of children not mired down in poverty. They would work on strengthening communities. They would work on reducing economic inequality, since of almost all economic indicators inequality is the most likely to cause societal problems. They would do everything they can to keep people *out* of prison, since once you've been in prison in the United States you are far more likely to become involved in crimes in the future.

And of course, they're doing none of those things.
posted by Deathalicious at 7:01 PM on June 8, 2013 [5 favorites]

In the end it's about power for its own sake.
posted by anemone of the state at 7:05 PM on June 8, 2013

How would you counter that?

That their reasoning is faulty. It would seem to me that they are at least committing the informal fallacy a false dilemma. Not to mention the fact that there is no proof that this type of surveillance saves lives. Absent such evidence I find this line of reasoning fairly specious, not to mention willfully ignorant. Again even if it did save lives, its not really clear that this is an action that should be perused. The job of the federal government isn't to "save the most lives," but rather to uphold the democratic principles enshrined in the constitution. The president doesn't swear to save as many American lives as possible, he swears to uphold and protect the constitution.
posted by AElfwine Evenstar at 9:00 PM on June 8, 2013 [2 favorites]

Again, I offered the question to try to figure out the arguments the agencies used to change Obama's mind. I'd like to know what hope we have that later presidents won't be swayed by the same damn arguments they won't tell us.
posted by JHarris at 12:06 AM on June 9, 2013

BobbyVan wrote: But metadata includes more than times/dates/phone numbers. It also includes fairly precise location information if you're using a mobile phone.

If by fairly precise you mean course (at best the sector of the connected cell tower). Precise locations aren't generated for phones just for the hell of it. It creates significant load on the network. If TPTB were really gathering real time location information from cell phones, there would be no bandwidth left for real traffic.

One triangulation request takes about 3.7kb of traffic over the air. Not a lot, you think, and you're right, except that you're forgetting the scale of the proposed surveillance. Triangulate 10 phones per second, and that's 37kbps of the control channel you're using. Still not much, but we're supposed to be tracking everybody, remember?
posted by wierdo at 1:38 AM on June 9, 2013

Edward Snowden: the whistleblower behind revelations of NSA surveillance:

The individual responsible for one of the most significant leaks in US political history is Edward Snowden, a 29-year-old former technical assistant for the CIA and current employee of the defence contractor Booz Allen Hamilton. Snowden has been working at the National Security Agency for the last four years as an employee of various outside contractors, including Booz Allen and Dell.

The Guardian, after several days of interviews, is revealing his identity at his request. From the moment he decided to disclose numerous top-secret documents to the public, he was determined not to opt for the protection of anonymity. "I have no intention of hiding who I am because I know I have done nothing wrong," he said.

This is a revelation I didn't expect. Snowden is currently holed up in a hotel in Hong Kong.
posted by grouse at 11:39 AM on June 9, 2013 [3 favorites]

Edward Snowden is a traitor, and a hero.
posted by brain_drain at 12:24 PM on June 9, 2013

Edward Snowden is a hero.
posted by crayz at 12:59 PM on June 9, 2013 [4 favorites]

Snowden may not want this to be about Snowden, but it's important that he gets as much support as possible. The more people who leak and get away with it, the stronger the message it sends to the world.
posted by anemone of the state at 1:00 PM on June 9, 2013 [1 favorite]

Good luck to Mr. Snowden. I think journos have misconstrued what he leaked and the public has taken it off into lala land conspiracy nut territory, but he still did us a great service and deserves our support.
posted by wierdo at 1:14 PM on June 9, 2013 [1 favorite]

White House Petition: Pardon Edward Snowden
posted by crayz at 1:23 PM on June 9, 2013 [1 favorite]

Behold the NSA’s Dark Star: the Utah Data Center. It’s the ultimate machine of what’s become our Paranoid State. Clive Irving on the Orwellian mass-surveillance data center rising in the Utah desert.
posted by homunculus at 3:35 PM on June 9, 2013 [1 favorite]

Edward Snowden did the smartest thing coming forward. He stands a much better chance of seeing his 30th birthday if the world knows his name. That said, I expect that he's going to have an accident on his way to the room next to Manning. The NSA has no sense of humor.
posted by dejah420 at 5:37 PM on June 9, 2013 [6 favorites]

NSA surveillance as told through classic children's books
posted by exogenous at 8:06 AM on June 10, 2013

Mass Surveillance in America: A Timeline of Loosening Laws and Practices
posted by the man of twists and turns at 12:04 PM on June 10, 2013

This interesting blog post contrasts how even though it's "okay" to secretly collect our phone and internet data for our protection, it's impossible to obtain the geocoded data needed to determine where an outbreak of deadly pandemic influenza might emerge within its own borders, a possibility experts have long argued could kill hundreds of millions of people worldwide. The author goes on to note that "Indeed, even if a person is subsequently infected by pigs the U.S. government still requires approval from the owner before the source pigs can be tested."
posted by gubenuj at 3:50 PM on June 10, 2013 [2 favorites]

The Verizon order, the NSA, and what call records might reveal about psychiatric patients
posted by homunculus at 11:49 AM on June 11, 2013 [1 favorite]

Using Metadata to Find Paul Revere
posted by jeffburdges at 1:04 PM on June 11, 2013

ArXiv paper by USC applied math prof suggests attosecond wobble in earth's orbit attributable to angular momentum in NSA server farms' HD's.— Authentic Wm. Gibson (@AuthenticWmGibs) June 7, 2013

posted by the man of twists and turns at 3:24 PM on June 11, 2013 [1 favorite]

First Lawsuit Over NSA Phone Scandal Targets Obama, Verizon
posted by homunculus at 6:21 PM on June 11, 2013 [2 favorites]

Speaking of countable numbers of people killed there was another mass shooting just now, with six people killed, but I guess if he wasn't a Muslim it wasn't "terrorism" and so no big deal we certainly wouldn't want to take away people's semiautomatic rifles or anything like that.

On the other hand we absolutely need to give up give up all our privacy to stop Muslims from randomly killing us.

Santa Monica Killer John Zawahri: A Familiar Profile
posted by homunculus at 7:56 PM on June 11, 2013 [1 favorite]

Southern District of Florida Blog: There's a lengthy multi-defendant trial before Judge Rosenbaum right now. I've been hearing lots of interesting (and sometimes funny -- including Marc Seitles putting on a dress during a cross!) stories from the trial, and this one is worth sharing. Dore Louis filed a motion for phone records, which the government claims it doesn't have. But -- according to recent reports -- doesn't the government have all of our phone records? Judge Rosenbaum wants to hear from the government on this point
posted by Drinky Die at 8:41 AM on June 12, 2013 [3 favorites]

gerryblog: "I'm shocked to see David Simon backing Obama on this."

David Simon responds to criticism.
posted by chavenet at 9:30 AM on June 12, 2013

Ted Rall’s Prescient Take On Verizon And The NSA
posted by homunculus at 12:31 PM on June 12, 2013 [1 favorite]

A Photo History of the NSA, from Its Once-Secret Archives
posted by homunculus at 3:47 PM on June 12, 2013

Foreign Stakes Shield Two Phone Firms from Sweep

WASHINGTON—The National Security Agency's controversial data program, which seeks to stockpile records on all calls made in the U.S., doesn't collect information directly from T-Mobile USA and Verizon Wireless, in part because of their foreign ownership ties, people familiar with the matter said.

The blind spot for U.S. intelligence is relatively small, according to a U.S. official. Officials believe they can still capture information, or metadata, on 99% of U.S. phone traffic because nearly all calls eventually travel over networks owned by U.S. companies that work with the NSA.

posted by BobbyVan at 8:16 PM on June 13, 2013

NSA Surveillance May Have Dealt Major Blow To Global Internet Freedom Efforts
posted by jeffburdges at 3:19 AM on June 14, 2013

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