

Rep. Nadler now saying CNET story (NSA recording calls) is not true.  - teawithcarl
https://twitter.com/trevortimm/status/346304794970968064

======
btilly
OK, I've finally been motivated to go read the law itself. You can find it at
[http://www.law.cornell.edu/uscode/text/50/1881a](http://www.law.cornell.edu/uscode/text/50/1881a).

There are a lot of interesting things in there. For instance g.1.B allows
wiretapping BEFORE they get the FISA rubber stamp. (But the warrant is still
required to be sought. Whether this is done in practice is another question,
but the warrant is still needed.)

However to me the single biggest red flag is g.4 which reads, _A certification
made under this subsection is not required to identify the specific
facilities, places, premises, or property at which an acquisition authorized
under subsection (a) will be directed or conducted._

Why is this interesting? Well compare with the 4th amendment, with the
important bit highlighted by captitalization, _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 person or things to be seized._

How can anyone pretend that this law is constitutional???

~~~
tptacek
Because it regulates foreign surveillance, not domestic law enforcement.
Similarly, the Army doesn't need to honor the 4th Amendment when in a combat
theater abroad.

~~~
Joeri
Speaking as a foreigner, I can assure you that "oh, this is only for
foreigners" is not going over well in europe. I'm pretty sure the EU is going
to come down hard on the US over this. Or rather, they will simply mandate
that data for EU citizens is not allowed to leave the EU without the express
prior consent of those citizens. It's the perfect excuse to give favorable
treatment to the EU IT industry without the US having a legitimate complaint
in front of the WTO.

~~~
tptacek
You don't like being spied on? I don't blame you. But that doesn't make it
unconstitutional. One time, we invaded a whole country, dropped bombs all over
populated urban centers, took over for about 5 minutes, dissolved the army,
and then stood back and let the whole place turn to hell. That sucked a lot.
Also: not unconstitutional.

~~~
leoc
No, this is actually a pretty anomalous situation on the face of it. Everyone
knows that you can be sitting outside in the evening sun using your laptop in
Western Pakistan, and Barack Obama can send a Predator drone over the horizon
to kill you without any US constitutional issue if you're not a US citizen.
(Aside from maybe the War Powers Clause.) What he can't do is confiscate your
500 shares in AT&T or other US property without any legal proceeding. So it's
actually moderately suprising that non-resident aliens' US cloud data
apparently doesn't enjoy the same US constitutional protections that their
other US interests do.

~~~
btilly
_What he can 't do is confiscate your 500 shares in AT&T or other US property
without any legal proceeding._

He just has to sue the shares for having had the bad taste to be owned by a
suspected terrorist.

See [http://www.fee.org/the_freeman/detail/seizure-fever-the-
war-...](http://www.fee.org/the_freeman/detail/seizure-fever-the-war-on-
property-rights#axzz2WQfRUXB8) for a description of prior art on this
technique.

~~~
leoc
Yes, I have heard of problems with asset-forfeiture laws in the States. But
apparently the amount of legal protection and redress you have against
government asset forfeiture is still luxurious compared to what you have as a
non-resident alien facing spying on your Google account: in the latter case
it's basically none. (There's also the fact that US citizens seem to have
(IANAL) as little protection as you, but that's cold enough comfort.)

------
downandout
I don't think it matters what the government says about this from here on out.
They've shown the depth of their ambitions; they want and will get records
about every communication we have. They've been caught in multiple lies, and
we can expect that we will never hear the whole truth on this issue. They are
doing whatever they want to do, legal or not, and we can't stop them.

We can all now safely assume that if we have unencrypted electronic
communications (phones included), the full contents of those communications
will be stored somewhere and made available to government agents should we
come under suspicion for anything. Plan accordingly.

~~~
pvnick
I think we _can_ stop them if we stand united in defiance. Look what we
accomplished with SOPA/PIPA - they were on the verge of passing and we
demolished those bills.

Just some efforts off the top of my head:

-Restore the Fourth (reddit.com/r/restorethefourth) is a planned nationwide mass demonstration to protest privacy encroachments

-Mozilla/Reddit/EFF/etc - [http://stopwatching.us](http://stopwatching.us) is going to be sending hundreds of thousands of emails to representatives on citizens' behalf over the next couple weeks. In fact I'm currently contributing dev time to this one, and we _really_ could use some more developers to do everything we want to do. If anybody wants to help "code for freedom" (I just made that up) please email me at pvnick@gmail.com

Don't make the mistake of thinking you're powerless because you're not. We
still live in a representative democracy, and most of our leaders do actually
care what their constituents think, it just doesn't seem that way sometimes.

~~~
ihsw
The difference is there wasn't a decade of infrastructure built around
SOPA/PIPA (technological, social, political, economic, etc) however now there
is -- the Obama Administration's staunch resistance and the mainstream-media's
support is evidence of this.

Even now the UK Government is seeking to duplicate the NSA's efforts because
they see the writing on the wall that things may go south, so even if we act
now then it'll effectively be a whack-a-mole game that will last for a long
time coming.

We can stop them now in the US but we'll have to expand our efforts globally.

~~~
pvnick
Daniel Ellsberg (the famous pentagon papers whistleblower) recently stated
"With Edward Snowden having put his life on the line to get this information
out ... I see the unexpected possibility of a way up and out of the abyss."
[1]

Now is the time to act. We have the option to succeed, but only if we really
want to.

[1]
[http://www.guardian.co.uk/commentisfree/2013/jun/10/edward-s...](http://www.guardian.co.uk/commentisfree/2013/jun/10/edward-
snowden-united-stasi-america)

------
rsanders
What does "cannot" in the quote from Rep. Nadler mean?

    
    
      “I am pleased that the administration has reiterated that, 
      as I have always believed, the NSA cannot listen to the 
      content of Americans’ phone calls without a specific 
      warrant.”
    

I hesitate to draw any conclusions from that statement given the
administration's secret lingo and willingness to make the "least untruthful"
statements they can conveniently make.

Are we to assume that all the concerned agencies and courts have no secret
interpretations of the laws to mean otherwise? That they are not technically
capable? (I've implemented CALEA in a VoIP network, so I'm quite sure they
can.) That there are actual technical barriers implemented within the agencies
which prevent its personnel from doing so without specific legal oversight?

Or maybe it's just soothing noise with no specific or verifiable meaning.

~~~
legutierr
I think "cannot" can easily mean that they are not permitted to according to
their internal policies and procedures, even if they might have the technical
ability to do so.

"Listen to" is something a human being does, requires a warrant.
"Record/capture" is something that a computer does, does not require a
warrant. This would be consistent with what parties inside and outside the
government have been saying. Until now, no government rep has yet said that
calls are not being recorded; they are simply saying that they are not being
listened to.

The fact is, being able to get a warrant to listen to a recording that you
made two years ago of someone, before they were under suspicion, is a very
different thing than being able to get a warrant to begin recording and
listening to someone. I think the government would assert that the former is
equally permitted under the fourth amendment as the latter, although I would
bet that most Americans would disagree.

~~~
skygazer
If "listen to" is something that a person does, does that allow that "speech
recognition/transcription" is something a machine can do? If I were servailing
en masse, I'd prefer to start with some machine learning filters against all
that audio. Is it legally a search if a human didn't do it? What if it's meant
to establish "foreignness" percentage? I've noted a lot of "no one's listening
to your phone calls," and it seems the sort of "least untruthful" denial a
clever government might use.

------
mpyne
The big question I would think is whether or not the NSA can capture a phone
call (without an analyst listening to it) with a warrant or not.

On the one hand that's a phone call which has its own specific wiretap
requirements.

On the other NSA has been capturing things elsewhere that they need a warrant
to look at, so the logic would be similar. And given that most phone calls are
probably routed over a computer network by now the wiretap law may not apply
directly in NSA's view.

I said yesterday that it Nadler probably understood "we can capture but not
listen to calls" as "we can tap into calls (i.e. eavesdrop)" and so the
message the NSA rep delivered is not the one Nadler understood.

But that still leaves open the question of whether phone calls _can_ be
recorded in NSA's view, or whether it's just the metadata.

------
derrida
"Not true" makes an unwarranted assumption.

Watch the video, he has one story from the NSA in a classified hearing and the
opposite story from the FBI in an unclassified hearing. Nadler is pleased with
the report the FBI gave (requesting tapping for an individual from a court).

There's still the case of what the NSA said at the classified hearing.

~~~
tptacek
Nadler was at the classified hearing, and confirmed to BuzzFeed that he
believes NSA is using specific warrants to capture phone content.

~~~
sillysaurus
Interestingly, the CNET article said exactly that. "If they're targeting
anyone within mainland USA, then that triggers the system to require a
warrant." But everybody ignored or didn't read that part of the article.

~~~
brown9-2
The key word in that sentence being "targeting".

A lot of the discussion is on what happens when the NSA targets a non-American
overseas and that person calls or communicates with someone in the US.

If you can listen to a large amount of an overseas target's communications,
it's inevitable that some of what you pick up will be communications with
Americans. The questions, and confusion, is what happens and what should
happen when that occurs.

The problem is that so much of the reporting around this gets things confused
that it is hard to understand what everyone is talking about, and a lot of
people are walking away with the assumption that analysts in the NSA are
regularly listening to US-to-US phone calls or emails for shits and giggles.

------
DennisP
If they can't "listen to" a call without a warrant, can they record the call
without listening to it, and get a warrant later?

------
ganeumann
Obama says the congresspeople are all briefed up. They say they aren't. So
they brief them up. Then they're confused.

The NSA would have been better off not trying to keep the whole program
secret, since no one in Washington seems to be able to figure out what's going
on even when they're told.

The whole thing has gone from shocking to sad to just plain pathetic.

------
tzs
Is there anyway to view that on mobile without being logged in to Twitter? It
briefly shows the tweet, then it looks like it decides that since I'm on iPad
I should be on their mobile site and goes to the mobile login page.

~~~
tptacek
The nut of the story, and its entire newsworthy factual content, is that
Nadler is pleased to have been informed by the administration that the NSA
cannot in fact listen to the contents of phone calls without a specific
warrant.

------
DanielBMarkham
I started a blog a while back because I do not expect this long-running story
of freedom and privacy to move in a straight line from point A to point B. As
this story shows, there'll be a lot of steps forward, then a couple of steps
back. It's something that will require chronicling.

I won't debate the veracity of Congressman's Nadler's comments either a couple
of days ago or today. I'll just assume his first comments were correct and
unguarded. (They say the definition of a gaffe is when somebody in Washington
DC tells the truth)

What interests me is this: who got to him? We'd all like to assume it was some
kind of nefarious government source, but my instincts say it was somebody in a
leadership position in his own party.

We won't know, though, either which statement was correct, and if the first
one was true, how he was "adjusted" by some external force. Bet it's a
fascinating story. My money says leadership in both parties are really busy
cracking the whip over this behind the scenes.

~~~
rtpg
If you actually look at the CSPAN segment upon which the piece is gased, you
can see that there is legitimate confusion between the FBI Director and the
Congressman during the exchange.

That could have been a ruse, or the Congressman could have legitimately
misunderstood something previously, and thus tried to clear everything up
after it blew up. Not everything is a fucking conspiracy.

~~~
DanielBMarkham
The story I read said that Nadler received one answer one day, and another
answer during the closed-door, classified briefing.

Didn't know they put those things on CSPAN.

And nobody's implying a conspiracy. I specifically said as much. My point was
that leadership had a vested interest in keeping the troops marching in line
-- much more than with your normal poicy issues. Also that the Nadler thing is
a tiny piece of a much larger tapestry. Doesn't matter much one way or the
other how this specific story turns out. I was just assuming his first words
were accurate for purposes of having a starting point in the discussion.

~~~
eli
I agree that the Nadler thing is a small part of this whole news event... but
it was pretty much the entirety of the CNET piece. It is no longer fair to say
the NSA "admitted" to listening to the contents of phone calls. Maybe they do,
maybe they don't, but there's no evidence they admitted it.

------
teawithcarl
I believe the NSA scandal is horribly wrong.

However, this link shows Trevor Timm's latest tweet, which is very important,
and supports reporting by Julian Sanchez, where he started to notice the
misinterpretation. Accuracy matters.

[http://www.juliansanchez.com/2013/06/15/nadler-and-
mueller-o...](http://www.juliansanchez.com/2013/06/15/nadler-and-mueller-on-
analysts-getting-call-and-e-mail-content/)

~~~
eli
Lots of people thought the CNet piece was fishy. I asked Declan about it after
I saw his post here yesterday but nobody noticed :)
[https://news.ycombinator.com/item?id=5887443](https://news.ycombinator.com/item?id=5887443)

