
New Revelations U.S. Tracked Americans’ Calls for Over a Decade - peter123
http://www.wsj.com/articles/justice-department-kept-secret-telephone-database-1421427624
======
0x5f3759df-i
The key point of this is that the database of calls was collected without
court oversight.

So all the defense the government used with the NSA database being overseen by
the FISA court doesn't apply, there was no court oversight of this program.

It did not target specific individuals and there was no probable cause before
the collection of this data.

This is a clear violation of the 4th Amendment in my view.

>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.

~~~
rayiner
The calls were cross-border: "The Justice Department secretly kept a database
of Americans’ calls to foreign countries for more than a decade."

The very first Congress, comprising many of the people who wrote the 4th
amendment, passed a law allowing warrantless border searches. Since then, such
searches have not been considered "unreasonable" under the theory that states
have sovereign authority over what crosses their borders.

Might run into problems with the FISA statute, I don't know.

~~~
dsp1234
_The very first Congress, comprising many of the people who wrote the 4th
amendment, passed a law allowing warrantless border searches._

According the text of the actual act[0] passed, the original intent was that a
warrantless search was reasonable when there was suspicion of fraud with
regards to the contents of goods being imported. Section 23 specifically
mentions "on suspicion of fraud" and section 24 mentions "reason to suspect
any goods, wares or merchandise subject to duty shall be concealed". It was
not a blank allowance to search everyone at the border, particularly it did
not allow for the searching of people leaving. Section 23 only mentions "after
entry made of any goods, wares or merchandise". Since then, the this act has
been expanded in to common law, and then expanded to allow for a general
consideration of "reasonableness". Additionally, the act in section 23
specifically allowed for third party review of the search by requiring that
the search be done with the oversight of "two or more reputable merchants". So
yes, the first congress passed an act which allowed for limited warrantless
border searches, but that doesn't tell the whole story since the scope of the
authorized searches, and the warrantless border searches we have now are so
far apart from each other.

 _Sec. 23. And be it further enacted,Collector, or other officer, suspecting
fraud, may open and examine packages. That it shall be lawful for the
collector, or other officer of the customs, after entry made of any goods,
wares or merchandise, on suspicion of fraud, to open and examine, in the
presence of two or more reputable merchants, any package or packages thereof,
and if upon such examination they shall be found to agree with the entries,
the officer making such seizure shall cause the same to be re-packed, and
delivered to the owner or claimant forthwith, and the expense of such
examination shall be paid by the collector, and allowed in the settlement of
his accounts; but if any of the packages so examined be found to differ in
their contents from the entry, and it shall appear that such difference hath
been made with intention to defraud the revenue, then all the goods, wares or
merchandise contained in such package or packages, shall be forfeited:
Provided always, That if the owner or consignee of such goods as shall not be
accompanied with the original invoice, should choose to wait the receipt of
the invoice, in such case, the collector shall take into his possession all
such goods, wares and merchandise, and store the same, at the expense and risk
of the owner or consignee, until the invoice shall arrive, or until they agree
to have the same valued.

Sec. 24. And be it further enacted,Goods subject to duty, and concealed, how
to be searched for, seized, and secured. That every collector, naval officer
and surveyor, or other person specially appointed by either of them for that
purpose, shall have full power and authority, to enter any ship or vessel, in
which they shall have reason to suspect any goods, wares or merchandise
subject to duty shall be concealed; and therein to search for, seize, and
secure any such goods, wares or merchandise; and if they shall have cause to
suspect a concealment thereof, in any particular dwelling-house, store,
building, or other place, they or either of them shall, upon application on
oath or affirmation to any justice of the peace, be entitled to a warrant to
enter such house, store, or other place (in the day time only) and there to
search for such goods, and if any shall be found, to seize and secure the same
for trial; and all such goods, wares and merchandise, on which the duties
shall not have been paid or secured, shall be forfeited._

[0] -
[http://en.wikisource.org/wiki/United_States_Statutes_at_Larg...](http://en.wikisource.org/wiki/United_States_Statutes_at_Large/Volume_1/1st_Congress/1st_Session/Chapter_5)
sections 23 and 24

~~~
rayiner
That's an interesting bit of history, but it misses the point. Those border
searches might have had other protections in place, but they didn't require
warrants. And the 4th amendment doesn't say that otherwise illegal warrant
less searches are okay because you have oversight. Thus, Congress didn't think
border searches fell within the warrant requirement of the 4th amendment.

------
declan
So DEA has a secret database of some significant subset of American's phone
records compiled with zero court oversight. Lovely. But the first question
that springs to mind is: Wy would DEA not try to vacuum up _email_ and other
metadata records too?

The law the DEA used to vacuum up Americans’ phone records is 21 USC 876,
which authorizes it to demand any info the “Attorney General finds relevant or
material to the investigation.” (No room for misuse there, right?)

But if 21 USC 876 lets DEA nab one metadata database, why not others? Cell
phone tower records? SMS records? Email To:/From: lines?

One answer is that Silicon Valley companies tend to push back against legally
dubious surveillance requests. (Yes, it's true that if they lose they have to
comply or go to jail, but at least they tend to fight.)

Examples I can think of offhand: Microsoft, Google, Yahoo, Facebook began
requiring warrants for email content in 2010 even though the law remains
unsettled nationally. There was Google vs. DOJ in 2006, Yahoo vs NSA in
2007-2008, Amazon vs DOJ in 2007, Facebook vs. Virginia in 2009, and Twitter
vs DOJ in 2010 (though I recall that was notification, not litigation). My
CNET article in early 2013 disclosed Google was fighting the FBI over NSLs in
two different courts: [http://www.cnet.com/news/justice-department-tries-to-
force-g...](http://www.cnet.com/news/justice-department-tries-to-force-google-
to-hand-over-user-data/)

On the other hand, AT&T/VZ/etc. -- which also provide email hosting! -- have
long-standing surveillance “partnerships” with the Feds, as I wrote about
here: [http://www.cnet.com/news/surveillance-partnership-between-
ns...](http://www.cnet.com/news/surveillance-partnership-between-nsa-and-
telcos-points-to-at-t-verizon/)

Sigh.

PS: A NYT article covering much the same ground, for those of you who don't
subscribe to the WSJ: [http://www.nytimes.com/2015/01/17/us/dea-kept-
telephone-reco...](http://www.nytimes.com/2015/01/17/us/dea-kept-telephone-
records-on-americans-justice-department-says.html?_r=0)

------
kefs
While searching for a non-paywalled version, I stumbled on this gem from 9
years ago..

[http://usatoday30.usatoday.com/news/washington/2006-05-10-ns...](http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm)

~~~
disposition2
The reactions on the left are gems as well, especially since most of those
quoted voted for retroactive immunity for the telecoms only a short time later
[1].

1 -
[https://www.govtrack.us/congress/votes/110-2008/s20](https://www.govtrack.us/congress/votes/110-2008/s20)

~~~
discardorama
In Washington, "left" and "right" are two sides of the same coin. The only
difference is who they pay lipservice to: the left to the "poor", and the
right to the "rich". Aside from this lipservice, they are both the same.

Resolve to vote for someone not from the "(D)" or "(R)" side of the spectrum.
It's time we got third parties in there.

~~~
mullingitover
It's a nice sentiment but the two party system is dominant by design. It's a
feature that always emerges from winner take all voting systems.

~~~
prawn
You just need two-party preferred voting so that you can vote first for a
niche representative if you wish and preference a major party. In Australia,
for example, it allows parties outside the two majors to have some influence,
which I think is healthy.

~~~
vidarh
Without proper proportional representation, a huge proportion people are still
left with representation they actively disagree with.

------
ThinkBeat
Non paywall

[http://pastebin.com/XVF6RseQ](http://pastebin.com/XVF6RseQ)

------
known
"If there is a country that has committed unspeakable atrocities in the world,
it is the USA. They don't care." \--Nelson Mandela

[http://www.huffingtonpost.co.uk/mehdi-hasan/nelson-
mandela-i...](http://www.huffingtonpost.co.uk/mehdi-hasan/nelson-mandela-iraq-
israel_b_4396638.html)

------
pistle
Buried on a Friday

~~~
pc2g4d
What's more, it's a Friday preceding a major U.S. holiday weekend (MLK, Jr.
Day on Monday)

------
rurban
James Risen published that already, it was the very first Snowden document on
day 1, the "PSP" \- the presidents surveillance program, and the fact that
they destroyed the call record database at the justice dpmt probably just
means that they have now warrantless access to the NSA call databases, which
are bigger (full content) and searchable with much better tools.

------
rnernento
Paywall :(

~~~
evmar
[https://www.google.com/search?q=New+Revelations+U.S.+Tracked...](https://www.google.com/search?q=New+Revelations+U.S.+Tracked+Americans’+Calls+for+Over+a+Decade)

and click the link.

~~~
click170
Or you could take your pageviews somewhere that doesn't put up a pay wall.

If your protesting paywalls, that's the better choice.

------
shomyo
To Read the Full Story, Subscribe or Log In

------
crazychrome
A surprise?

------
icantthinkofone
So about half as long as the German, Russian, Chinese and British.

By "Americans" they mean those who called overseas to areas known for
terrorist and other illegal activities. Not ALL calls as the title would lead
you to believe.

In this day and age, terrorist activities are moving faster than the law that
NEEDS to keep up with it. For every terrorist success there is an unknown
number of society wins due to this activity.

Monitoring of calls is not done for the hell of it. There is no little man in
a back room listening to your every word. It's not happening to _everyone_ and
not to _all calls_.

More but I'm bored.

~~~
xnull2guest
\- Project SHAMROCK started collecting telephony data for millions of
Americans in _1945_ around the establishment of the FIVE EYES.

\- In the _1950s_ all snailmail in the US system was routed for selective
examination by the NSA and law enforcement

\- Expansion of collection operations continued through the Cold War until
leaks in the _1970s_ (containing COINTELPRO, MINARET, PROMIS) the Supreme
Court (the Keith Court) established that bulk surveillance need respect the
4th Amendment and the Church Commission (led by a Senator who was ing spied on
by the Executive branch) established the FISA Court as a compromise solution.
It was revealed that mass telephony programs were still in operation years
after the Church Committee was promised they were stopped.

\- In the _1980s_ Reagan declared Executive Order 12333 which massively
expanded the executive branch interpretation of what it deemed its
capabilities were under the limitations imposed on it, again expanding bulk
collection capabilities.

\- In the _1990s_ the Clinton Administration battled to backdoor all
cryptography in the United States after strong cryptography was finally deemed
to be allowed to US citizens, instead the administration requires compliance
by service carriers through CALEA and a constellation of other laws to have to
the ability to strip any encryption that they provide on behalf of a customer
and in general solidified the Third Party Doctrine (IP laws also made it
impossible to add encryption oneself). It was revealed that mass telephony
programs were in operation.

\- In the late _1990s_ there continued to be leaks of abuses and overreach by
intelligence and law enforcement on profile building and mass surveillance.

\- Through the _2000s_ the Bush Administration and in the _2010s_ the Obama
Administration pushed to expand tap-and-trace laws and the Third Party
Doctrine into the digital domain. 'Fusion Centers' are established across the
US where they monitor the activities of groups considered to be national
security threats (including The Tea Party, a third party trying to use the
democratic system we have in place to gain the support of the people) and
collect bulk local level information. Fusion Center databases are not at
national scales, and as far as I can tell, are not considered national
databases (though they will pass records as need be up the chain). Local
police departments are also given equipment for mass scanning and data
collection including Stingrays and X-Ray scanning vans.

\- _2015_ : The point of this article is that there _was no court oversight_
against the Keith Court decision and federal law.

\- Today you are now considered a reasonable, lawful target if you are three
hops indirectly connected through any medium from a 'bad guy' \- Twitter alone
has an average separation of random users of 3.43 [1] - imagine when all forms
of communication are combined

Reporting on the Snowden leaks showed us that the NSA and intelligence
operations are important sabotage and espionage (decision advantage)
capabilities of the United States (we had Merkle's cell phone during the
Eurozone crisis for Gods sake, we spied on foreign diplomats before
international meetings and we hacked Brazilian PETROBRAS so we could win
international offshore oil drilling auctions). That is the use of these
programs are not about terrorism but realpolitik/noopolitik in general
(terrorism a small corner).

'Terrorism' is a boogyman and a political tool. There is no reasonable
definition that doesn't equally label the United States as both performing and
sponsoring terroristic activities. Western media reported that the Breivik
attack was a terrorist attack by Islamic Extremists until it came out it was
an anti-Islamic political assault by a Christian extremist where they dropped
the word 'terrorist' for 'insane' (he killed over 70 people, most of them
children).

Terrorism today doesn't mean Mexican killings, deaths to locals in areas we
don't like, US soldier and military behavior, Israel's asymmetric and total
warfare with Palestine - it means Middle Eastern violence against the west.

The CIA hacked the Senatorial Commission to investigate it. That bears
repeating: the Executive Branch of our government broke into the communication
facilities of the legislative branch that is set up to 'check and balance' it.

The point of the article, and that of the American people is not that it is
happened to _everyone_ and _all calls_. That it is not happening to _everyone_
and _all calls_ isn't a counterpoint.

[1]
[http://www.aaai.org/ocs/index.php/SOCS/SOCS11/paper/view/403...](http://www.aaai.org/ocs/index.php/SOCS/SOCS11/paper/view/4031)

~~~
icantthinkofone
I wish I could downvote your cult BS falsehoods but I can't.

~~~
xnull2guest
I am certainly willing to provide references for the facts contained within
this post. Could you provide a list of things that, after your own research
finding contradictory information, you think need references or further
clarification?

What specifically do you believe is false, bullshit, or falsehoods? Can you
please engage the discussion by providing counterpoints and information of
your own?

------
theltrj
boo paywall

