

Feds Warrantlessly Tracking Americans’ Credit Cards in Real Time - marilyn
http://www.wired.com/threatlevel/2010/12/realtime/

======
sleight42
The most painful part of this article to me is this one quote:

"The Justice Department did not return a call for comment."

Our own government is, once again, not holding itself accountable to the
people or the fourth estate. Is it any wonder then that organizations like
WikiLeaks exist that perform the function that the fourth estate is failing
in?

(EDIT: Yes, I realize that WikiLeaks mission is somewhat different from the
fourth estate but even so.)

~~~
anigbrowl
[0] He heard about this in 2005 (when the government was run by a different
administration) but couldn't find anything. Eventually he filed a FOIA
request. Silence, until spring of last year, when he was told there was some
some information but it was redacted. So he filed an appeal, and it was
granted. I suspect the lack of DoJ comment is because they're still trying to
find out whether it was a fully formed program or just junior official's bid
for career visibility - I suspect the latter, given the extremely basic level
of information on these slides and lack of other documentation.

It's unclear whether the question left with the DoJ was about this 'hotwatch'
project or about administrative subpoenas in general. An AS is a request for
infor information issued by a government agency under statutory authority (ie
Congress passed a law specifically saying an agency may issue one in an
investigation and it must be complied with). About 300 government agencies are
empowered to issue them altogether, although usually within a narrowly defined
scope. The obvious constitutional problems with administrative subpoenas have
been known for some time [1]. Misuse of such procedures has resulted in
disciplinary proceedings at the FBI, among other agencies [2].

The basic thing to remember is that legally speaking warrants are not required
for this kind of information gathering because it does not constitute a search
[3] - as a legal term, this may not always mean what you think it means. for
example, your phone conversations are generally private and require a warrant
to listen to, but the numbers you call are not, and subpoena-ing that
information from your phone service provider is not a search - at least, so
said the Supreme Court in 1979 and neither it nor Congress have seen fit to
decide otherwise since then [4]. This manner of gathering information is not
actually new at all, as subpoena powers go back a lot farther than 1979 -
that's just the last time their legality was debated in this context.

Some people think the options available to law enforcement should be much
stronger, of course [5]. But in the meantime, relax - the sky is not in fact
falling and things have not taken a sudden drastic turn for the worse.

0\. [http://paranoia.dubfire.net/2010/12/dojs-hotwatch-real-
time-...](http://paranoia.dubfire.net/2010/12/dojs-hotwatch-real-time-
surveillance-of.html) 1\. <http://www.fas.org/sgp/crs/intel/RS22407.pdf> 2\.
<http://www.justice.gov/oig/testimony/t1004.pdf> 3\.
[http://cyb3rcrim3.blogspot.com/2010/05/administrative-
subpoe...](http://cyb3rcrim3.blogspot.com/2010/05/administrative-subpoenas-
and-4th.html) 4\. [http://cyb3rcrim3.blogspot.com/2007/09/fourth-amendment-
priv...](http://cyb3rcrim3.blogspot.com/2007/09/fourth-amendment-privacy-ip-
addresses.html) 5\.
[http://docs.google.com/viewer?a=v&q=cache:0Eiic5n5QFcJ:w...](http://docs.google.com/viewer?a=v&q=cache:0Eiic5n5QFcJ:www.wmpolicyreview.org/current-
issue/57_GRANDFINALEWMPR%2520Final%2520Edit%2520--%2520Caskey%2520WHOLE%2520WITH%2520TOC.pdf+CRS+Report+RL33321,+Administrative+Subpoenasin+Criminal+Investigations:+Background+and+Proposed+Adjustments&hl=en&gl=us&pid=bl&srcid=ADGEEShe2dsqEU4bbUlFk8TgrZq-
ngMnuqLeNh01hOoyP-WlQE3nZWWpI2ASniKuXgCSE7gUM5GZco-
mU9jVVuKQB0PzouNpdYUwqhvhu_ks3UAJebm0767X4dVSHPMxSduKPDE3cGym&sig=AHIEtbRL7zNBUcNqXd3HsRWCCkpt0kIejw)
< sorry, original is 404ed

~~~
sleight42
However, per [3], a subpoena is required which, unless I'm mistaken, does
require a judge (and therefore due process).

Also, it would at least be a common courtesy for the government to acknowledge
receipt of the request and that they intend to follow through. Instead, the
DoJ did not respond, per Wired.

While I do greatly appreciate the detailed insight, I stand by my original
point.

~~~
anigbrowl
Perhaps I was unclear. When I say an agency can issue a subpoena, I mean
exactly that: rather than _requesting_ one from a court, an agency can _issue_
one under its own administrative authority - within the limited scope
authorized by statute. The IRS can subpoena your bank statements, say, or the
EPA could subpoena a suspected polluter's freight delivery data. Many agencies
have limited powers to investigate and then prosecute or impose financial
penalties, otherwise the court system would need to be considerably expanded.
After going through any dispute/appeal process of the agency, then a matter
can be heard in state or federal court as appropriate. It's good to get proper
legal advice and do everything in writing from the beginning, or you can waste
several years fighting the inevitable!

The 'preferred method' mentioned in the Hotwatch briefing does involve going
to a judge too, but that's for the separate purpose of getting a secrecy order
to avoid tipping off the suspect. The government did get a lot of new powers
to investigate things under the PATRIOT act. Though some expired or were
amended later, civil liberties were a low priority in October 2001 when people
were still feeling panicked about terrorism.

I agree that the DoJ should call back and say 'we're looking into that, give
us a few days' - but you know, people would find a reason to be paranoid about
that too. Newspapers used to say 'had not called back by press time,' but with
blogs that might mean anything, such as waiting only an hour (I consider
_Wired_ a responsible news source in this respect, but I still don't know how
long they actually waited, and would sort of like to). Remember this Hotwatch
powerpoint is 5 years old, and agencies are being told to tighten their
budgets a great deal lately; press & public relations departments are often
the first to see cuts because they're considered 'fluff' expenses compared to
the core mission of a department.

------
jrockway
Having worked for a bank, I'm shocked that they managed to build a product
that offers no business value but requires actual technical expertise to
implement.

Now that I think about it... it's probably an Excel spreadsheet...

~~~
bediger
I upgraded a Visa Level 1 merchant's credit card system a few years ago. It
was an unholy mess of C++ servers, Java servers, large amounts of semi-
comprehensible PL/SQL, and Korn shell scripts. Real time authorization was
handled by one system, and end-of-day settlement was handled by a very
different system, under a different director.

I wouldn't be at all surprised that the "real time" data the feds get is very
nearly worthless. It's probably patchy and intermittent, and varies greatly in
timeliness. The document says that "open ended" systems (Visa and MasterCard)
depend on issuing banks, which is certainly true, but the merchants can also
contribute greatly to delays in getting data in. The Level 1 merchant did
something called "Assumed Approval" when it lost contact with the payment
provider. Since about 96% of all authorization requests got approved, it would
just assume that all auth requests got approvals when network problems
prevented actually getting approvals. The feds wouldn't find out about those
transactions until end-of-day settlement.

------
jdp23
"For credit cards, agents can get real-time information on a person’s
purchases by writing their own subpoena, followed up by a order from a judge
that the surveillance not be disclosed."

The information was in a Power Point presentation Chris Soghoian FOIA'ed. Good
reporting once again by Ryan Singel.

~~~
joebananas
Makes you wonder how long before Joe Lieberman condemns the FOI act as
treasonous.

~~~
jrockway
He already did, it's just that nobody is allowed to talk about it.

------
ck2
What really upsets me about ALL these things is that it seems highly unlikely
any of these privacy violations would have caught any known terrorists,
foreign or domestic.

It's just lazy law enforcement covering itself so it has an after-the-fact
method to hunt people down easily, just like all the security cameras in the
UK are not to actively prevent crime, but just to have a trail afterwards.

------
grandalf
It would seem that this makes it significantly easier to stay under the radar
-- simply set up your credit cards to suggest a very normal life and then use
cash for any illicit activities.

And, if a group of people (such as a terrorist cell) wanted to, it would be
easy to deliberately create a paper trail to mislead authorities.

~~~
sielskr
because the authorities have no control over the supply of cash, would never
try to outlaw cash, or never require banks to report the withdrawal or deposit
of cash.

~~~
grandalf
At the levels necessary to do terrorist acts, cash is essentially unmonitored.

------
dangrover
Hmm, makes me want to use cash for everything, but then I'd have to pay an
assload in ATM fees.

~~~
SageRaven
You know, you _can_ walk into a bank and withdraw a wad of cash without a fee.

I went for a couple of years at an employer, walking my paycheck to the credit
union each payday and simply cashing it. I'd deposit enough for writing checks
for bills, but I otherwise started every other week with $2k in my pocket.
Then they mandated direct-deposit, so I got lazy and my large cash withdraws
became less and less frequent.

~~~
orangecat
Or pick a bank with conveniently located ATMs. I don't understand how ATM fees
are an issue at all; I use cash way more than the average person and have
never paid any.

------
shareme
It seems like we are waking up to a bad dream that the US government is
increasing the Skynet in the Terminator movies..

They track you, bug you, infiltrate , and than order drones to bomb the heck
out of you..

The sad thing is its not the Government's fault. We as voters let this happen
in not opposing the interests of the Military-Industrial-Financial complex
with real votes on the issues..

~~~
dantheman
It's not the voters fault; it's a systemic fault. Once you accept that
violence can be used to force people to take certain actions; and that its
proper place is not only as last resort for self defense you accept a system
that will continually gain more power and use force more and more. People need
to realize that the use of force, and living at the expense of another is not
sustainable and will eventually collapse.

~~~
narrator
This was all laid out in Zbigniew Brzezinski's book "The Technetronic Era"
back in the early 70s. They've been hard at work on all of this ever since.
It's part of a clear detailed long-term vision and they've just been putting
the finishing touches on it and everyone acts like it just happened all by
itself.

[http://www.amazon.com/Between-Two-Ages-Americas-
Technetronic...](http://www.amazon.com/Between-Two-Ages-Americas-
Technetronic/dp/0313234981)

>"The technetronic era involves the gradual appearance of a more controlled
society. Such a society would be dominated by an elite, unrestrained by
traditional values. Soon it will be possible to assert almost continuous
surveillance over every citizen and maintain up-to-date complete files
containing even the most personal information about the citizen. These files
will be subject to instantaneous retrieval by the authorities." (This was an
excellent prediction although it is slightly worse now.)

>'In the technotronic society the trend would seem to be towards the
aggregation of the individual support of millions of uncoordinated citizens,
easily within the reach of magnetic and attractive personalities effectively
exploiting the latest communications techniques to manipulate emotions and
control reason." (Fox CNN and facebook?)

>"Today we are again witnessing the emergence of transnational elites ...
[Whose] ties cut across national boundaries ...It is likely that before long
the social elites of most of the more advanced countries will be highly
internationalist or globalist in spirit and outlook ... The nation-state is
gradually yielding its sovereignty... Further progress will require greater
American sacrifices. More intensive efforts to shape a new world monetary
structure will have to be undertaken, with some consequent risk to the present
relatively favorable American position."

~~~
jdp23
great quotes!

