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New Revelations U.S. Tracked Americans’ Calls for Over a Decade (wsj.com)
222 points by peter123 on Jan 16, 2015 | hide | past | web | favorite | 55 comments

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.

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.

To be fair, calling FISA a "court" is a bit of an overstatement[1].

It's very unlikely that FISA oversight would have stopped or changed this in any way. Nonetheless it might be interesting to learn why they skipped the fig leaf altogether in this case.

[1] http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...

It's comprised of legitimate federal judges. I'm not sure how much more you want.

Presumably if said judges worked in a coffee shop making and serving coffee, that coffee shop would not all of the sudden become a federal court?

Read the link in my comment, it goes into great detail about what FISA leaves to be desired. An NSA analyst sums it up as: "Kangaroo court[1] with a rubber stamp".

[1] http://en.wikipedia.org/wiki/Kangaroo_court

Federal judges that never question NSA and automatically approve "3 month general warrants for mass collection".

Where's the "oversight" in that? That's why it was put there, no? To have oversight over NSA. How can you have any oversight when you just tell NSA to "collect everything".

"Legitimate" federal judges appointed by one judge (to rule them all, presumably.)

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.

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... sections 23 and 24

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.

You are seriously saying that trans-border data flows are so analogous to the operation of custom houses that the 4th it completely meaningless just because someone is carrying my data across borders?

Funny how tariffs on imports were never applied to data. That analogy proved to be invalid. And yet, tariffs are what border searches were meant to enforce.

There's no analogy. Borders are fundamental--states exist in part to create the difference between "inside" and "outside" the border. And historically the understanding has been that states have authority over anything that crosses the border into or from foreign territory.

The tariff issue is irrelevant. Congress chose not to apply tariffs to international data flows. They did it for pragmatic reasons, not because they couldn't.

> They did it for pragmatic reasons, not because they couldn't.

I didn't climb onto the 10 foot roof with a 6 foot ladder because it wouldn't work, not because I couldn't. Like that?

Not sure why this is downvoted. You might not like it, but it is pretty well established legal doctrine that cross border search doesn't require a warrent.

I'm not sure you can claim that the movement of a physical object across a border is the same thing as a phone call.

This becomes especially dangerous, once you start applying it to the internet, the average user has no way of knowing where a website they request is coming from and typing the same domain name will get a page from different locations depending on the circumstances.

Am I really crossing a border by requesting a website from Europe? Should I need a passport to do so?

Also, what happens if/when the NSA is forces your theoretically-only-domestic packets to take a small detour out of the country?

Or equally likely, they have an agreement with a foreign power that they each spy on one-another's citizens and share findings.

>I'm not sure you can claim that the movement of a physical object across a border is the same thing as a phone call.

It seems like this discussion is getting lost in the distinction between what we all believe is right/just, and what the law covers/claims/allows, which we know are distinct. Again, outside of the realm of our approval, it certainly is likely the government would claim that the movement of the a physical object across a border is the same thing as a phone call. The stretching of these kinds of laws to near-breaking is the court's Raison d'être. Remember, the right of business owners to deny service to black people was struck down using the interstate commerce clause[0] - something the founders certainly didn't have in mind whenever they wrote it.

[0]Heart of Atlanta Motel, Inc. v. United States (1964) http://www.law.cornell.edu/supremecourt/text/379/241

I think the other key part is that it was only tracking calls to/from specific countries (in the case of this article, it's Iran, but other countries are on the list). I'm not saying this makes it better, but it is not all domestic calls as could be inferred from the title.

It's not, but just for the conjecture of it, let's assume that list contains Canada, since we have to protect our borders. And Mexico. And of course the UK, because they speak English and it's much easier for drug dealers to collude with other English speakers. And so on...

So don't think Iran is the only country on the list, they just trumpet that to dig up thoughts of terrorism oh my.

I'm jaded. I'm pretty sure pre-Snowden I was salty, but now I assume the worst of the government and assume they're always lying. Always.

> So don't think Iran is the only country on the list, they just trumpet that to dig up thoughts of terrorism oh my.

For some reason Americans still overwhelmingly and falsely believe that Iran had something to do with 9/11.

I've not ever heard that. But there is plenty of involvement in other incidents:


Oh certainly. State sponsorship of terrorism is regular practice.


But it isn't a violation of the 4th amendment according the Supreme Court. Smith v. Maryland, 442 U.S. 735 (1979).

The number you dial isn't private because you are showing it to the phone company.

U.S. District Judge Richard J. Leon has already rejected that Maryland applies to the NSA bulk collection. Ultimately it will come down the supreme court but I would not be surprised to see them limit the scope of Maryland.

>The government’s legal justification for the call-tracking program is based on a 1979 case, Smith v. Maryland, involving the surveillance of a criminal suspect over a two-day period. In that case, the Supreme Court said that Americans have no expectation of privacy in the telephone metadata that companies hold as business records, and that therefore a warrant is not required to obtain such information. A succession of judges on the Foreign Intelligence Surveillance Court have adopted the government’s argument based on that ruling.

>But Leon said the question the Supreme Court confronted in 1979 is not the same as the one he was faced with. “Indeed, the question in this case can more properly be styled as follows: When do present-day circumstances — the evolutions in the government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago, that a precedent like Smith does not apply?” he wrote. “The answer, unfortunately for the government, is now.”


This is what the court said back then, but the court and the public were naive, and the future implications of such a rule were not yet clear. But even without hindsight, I think the court's logic was flawed. The phone company does not publish a list of who called whom for all the world to read. We would be justifiably outraged if they did. That's the test we should use in determining if information shared with a company is "private". Just like I expect the phone company to keep my payment information private, I also ought to be able to expect my call history is private.

they were targeting foreigners outside of the usa. which by chance happened to be taking to an American, much to the spies surprise.

-- their lawyers.

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...

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...


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...

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


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

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.

Obama gave us meaningful healthcare reform, bringing insurance to millions of people, brought financial reform, and avoided the crippling austerity that European countries have imposed. It would be silly to say that a Republican president would have been 'the same' just because Democrats have a shitty record on civil liberties.

Actually, your example proves the very point you're arguing against. Obamacare is just a refinement of Romney's health care strategy in Massachusetts. If Romney had been elected instead, we'd have seen something very similar put into place, and the Democrats would have dutifully screamed bloody murder about it.

Everyone in Washington privately agrees that something has to be done, and even on the key aspects of the required solution and timeline. But to keep the two-party illusion alive, they alternate between taking credit for it and blaming the people who actually do it.

It's all just a show (specifically, http://en.wikipedia.org/wiki/Ralph_Wolf_and_Sam_Sheepdog ).

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.

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.

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

While that is often the case, it is not necessarily the case. Look at France for a counter-example.

The downside is that the French "solution" was/is for the parties to enter into extensive election alliances to prevent splitting their potential voters, so it's an ugly workaround for a broken system, and you still get horrible distortions but it still better represents the actual views of the electorate.

Time for a proportional representation clause.

So we should have had this discussion in 2006... I'm wondering if this is a failure of journalism or a failure of democracy.

James Risen tried to publish it in 2004 but the Times fell to government pressure and refused to make the information public until over a year later (only because Risen threatened to tarnish their image over it); when the Times did publish it but buried under other stories.

So... both.

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


Buried on a Friday

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

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.

Paywall :(

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

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


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A surprise?

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.

- 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...

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

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?

boo paywall

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