May 12, 2006

The “New” NSA Kerfuffle, Day 2

Even as a Washington Post/ABC News poll—in itself a bit deceiving (on which, more later)—reveals that 66% of Americans “said they would not be bothered if NSA collected records of personal calls they had made,” many of the usual suspects (be they Bush-haters angling to scuttle the Hayden nomination to DCI, or civil liberties absolutists looking to stroke themselves for an ostentatious “willingness” to surrender a bit of security for the greater good of a “privacy” they never really enjoyed in the first place) are, predictably, screaming to the heavens about government overreach and a rape of constitutional protections.

For instance, reacting to Michelle Malkin’s Newsday op-ed on yesterday’s blockbuster scoop (read: publishing [old] classified information intended to gin up controversy) by USA Today, in which Malkin points out that

[USA Today] admits the kind of data collection involved is not new. The Clinton administration’s Echelon program was far more intrusive.

President Bush made clear yesterday: “We’re not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates. So far we’ve been very successful in preventing another attack on our soil.”

Nevertheless, the civil liberties Chicken Little are screaming “Bushitler!” on cue. What they should be screaming for are the heads of the blabbermouths endangering all of us by running to the fifth-column press when they don’t get their way in Washington. But you can never find the leak-decriers when you need them, can you?

…Kerry Howley writes at Reason’s Hit & Run:

Peter Swire and Judd Legum look at the Stored Communications Act and ponder the possibility that, with the exception of some Qwest-lovin’ islamofascists, we’re all entitled to a fat check:

The penalty for violating the Stored Communications Act is $1000 per individual violation. Section 2707 of the Stored Communications Act gives a private right of action to any telephone customer “aggrieved by any violation.” If the phone company acted with a “knowing or intentional state of mind,” then the customer wins actual harm, attorney’s fees, and “in no case shall a person entitled to recover receive less than the sum of $1,000.”

The Electronic Frontier Foundation is already suing AT&T for cooperating with the NSA’s secret wiretapping programs; the Department of Justice claims that such matters are, you know, secret, and wants the case dismissed.

Leaving aside for a moment the fact that Reason (free minds, free markets!) has linked approvingly to Think Progress, the outfit responsible for peddling the story that our use of Willy Pete in Fallujah was “evidence” of chemical weapons abuse by the US military in Iraq, and so a war crime (oh, the IRONY, they shouted, until they were shown to be, well, “cherrypicking” their source material)—and leaving aside earlier Hit & Run posts positing conspiracy theories involving an embittered Washington Post jealous of being scooped by USA Today and the mass “tapping” of our phones (as well as the cheers from Reason editor Nick Gillespie that support for data-mining analysis meant to stop terror attacks appears to be on the wane)—what is remarkable to me about Ms Howley’s post is its barely concealed joy over what is essentially a nuisance suit.  The information the NSA is collecting is already available on individual phone bills, and SCOTUS has ruled that such information is not covered under any expectation of privacy because, as John Stephenson notes, “there are countless numbers of people who are exposed to your phone records before your bill makes it into the envelope.”

But then, perhaps I am coming out too strong in favor of this collection of data being a matter of settled law.  A story in today’s WSJ, for instance, frames the legal question this way:

Law-enforcement officials routinely use what is known as “pen registers” and “trap and trace devices” to collect information about incoming and outgoing calls to and from a specific phone number. While a court order is required to get such information, the threshold is a lot lower than obtaining an order to actively listen to a call. Given the broader nature of the NSA terrorist-surveillance program, obtaining individual court approvals would be an enormous task, some legal experts say, and not entirely necessary.

“This is a new area that we’ve never seen before,” says Roscoe Howard, former U.S. attorney in Washington, D.C. “I can’t point to anything that would say the government can’t do this or would be breaking the law.”

Mr. Howard says the Fourth Amendment’s protection from unreasonable seizures applies a specific test: whether that information would be available to a third party. And in the case of call-detail records, the phone company collecting them would qualify as the third party, and thus the government would be allowed to have access to whatever it did, says Mr. Howard.

[My emphases]

Of course, it is the nature of legal wrangling and interpretation that for every constitutional expert who can find no violation of protections in a given action, there is a Glenn Greenwald, who, let’s face it, can find violations of constitutional protections in the packaging of breakfast cereals.

So in lieu of a consensus on the legal issue, the question becomes a political / social one:  do we err on the side of security (the program appears to have been quite successul), or do we err on the appearance of maintaining “privacy” (which results in much hyperbole about ordinary Americans having their phones “tapped,” and jubilation over massive class actions suits on behalf of, well, digits.)

Earlier, I mentioned that the WP/ABC poll was a bit misleading—though not for the reasons cited by Reason’s David Weigel or Nick Gillespie.  Instead, let me focus on this bit from the WaPo story:

According to the poll, 65 percent of those interviewed said it was more important to investigate potential terrorist threats “even if it intrudes on privacy.”

But whether or not a collection of unattributed phone numbers being used for trend analysis “intrudes on privacy” in the first place is in dispute, and so the question itself, one could argue, sets up a bit of a false dichotomy.  That is to say, the choice might not be between security and actual privacy so much as it is between security and the erroneous suggestion that privacy is being intruded upon—which makes the 65% number that much more telling.  Had the question been framed differently—for instance, say respondants had been asked if it was “important to investigate terrorist threats, even if that meant doing trend analysis of phone traffic which did not include names, recording conversations, or listening to the content of phone calls?—would we see an appreciable jump in those who support the program?

My guess is yes.

Which is not to minimize the seriousness of this issue.  Many of us who support the program, though we are frequently painted as bedwetters willing to turn over all of our rights to the government in exchange for Dear Leader’s protection, are not completely comfortable with such data-mining—and would only support such measures under extraordinary circumstances.  And unlike many of our opponents on this issue, we feel that, in dealing with an enemy that hides within our social matrix, hoping to use its protections and openness against us, it would be imprudent NOT to allow that the circumstances are indeed extraordinary, and so call for extraordinary measures.

Captain Ed summed it up well:

After 9/11, we discovered that the terrorists had easily infiltrated our society, used our communication systems to coordinate the plotting and execution of the attacks, and had done little else to indicate their hostility. In retrospect, we saw patterns of behavior and communication that many felt the government should have recognized as potentially dangerous. Not only that, but we also realized that more terrorists may still be living among us, and we demanded that the government root them out before they could attack again.

Targeting their communications is certainly a smart strategy, but the problem is the volume of phone calls in the US. Even if a phone number came up as a suspected terrorist line, the amount of time it would take to get the phone records involving that number would be enormous. The phone companies do not sort in both directions under normal circumstances, and so subpoenaing records on one account not only takes too long, but gives an incomplete picture.

When we discover terrorist phone numbers, we need to see more than just what numbers that phone dialed. We need to see who called the account as well, because the traffic might not be reciprocal in that manner. (In other words, just because I call you doesn’t necessarily mean you call me.) Some phone accounts, like cell phones, have that information, but local calls on land lines normally do not. Even beyond that, when intelligence agencies have two or three known data points (terrorist phone numbers), they need to quickly find all of the other phone numbers that have called or have been called by the suspect accounts, especially those in common to all. That allows the search to expand quickly to identify even more potential sleepers, who rely on phones to communicate and coordinate.

As a database administrator and someone who has worked on telco issues for several years, I can tell you that any attempt to do that with traditional phone records pulled in a traditional manner will take far too long to complete. The only way to efficiently find these needles in very large haystacks is to create a relational database that will sniff out those relationships. In order to ensure that the effort succeeds, the database must therefore contain as many of the records of phone calls as possible—all of them, under ideal circumstances.

Only such a database could make that kind of dot-connecting possible in any meaningful fashion. The kinds of patterns and connections that would reveal the potential for terrorist activity will be so small as to be impossible to discover through normal research. That’s what makes Senator Pat Leahy’s reaction so frightfully stupid. He said, “‘Are you telling me that tens of millions of Americans are involved with al Qaeda? ‘These are tens of millions of Americans who are not suspected of anything … Where does it stop?’’ Leahy either ignores or fails to grasp that the problem is precisely that so few in the US might be terrorist sleepers. If it were a large group, they would be much easier to track and data mining would not be necessary.

That presents the government with a powerful tool in determining the behavior of people inside the US, and for that matter outside of it as well. Is such a tool reasonable under the circumstances we face now? That is ultimately a political question instead of a legal one, depending on whether people feel themselves more in danger from terrorists or their government. In my opinion, the effort is reasonable and limited. The calls themselves do not get monitored, and the records do not contain billing information or even names in their raw form. With the US still in danger of terrorist attack and with the rational possibility of sleeper cells hiding in our communities, the use of this tool makes sense and provides security for a reasonable loss of privacy.

However, that does not make the collection of this data completely benign under any circumstances. This kind of data could be used for purposes other than finding terrorists. For instance, it could be used against whistleblowers to discover their contacts. It could get deployed against opposition parties to determine their scope and the location and number of their supporters. People could get blackmailed for their phone calls in ways that have nothing to do with national security. If the CIA or State Department (which has its own intelligence service) had this program rather than the NSA, many on the Right would feel much less sanguine about its implications.

When we finally acknowledged that Islamist terrorists had declared war on us, George Bush warned us that we would have to make sacrifices in order to beat our enemy. So far, we have not been asked for much in the way of sacrifice. Now that we see how the NSA has kept us safe, we should recognize that the limited loss of privacy on our telephone habits is not much of a sacrifice in giving the intelligence community a tool to root out terrorist sleeper cells. However, we should not dismiss the risks of giving even more power to the federal government so lightly, and we should ensure that the power we do grant them does not get misused.

[My emphases]

We have to straddle a fine line here between giving government too much power and giving them enough power to keep us safe.  Bush, using the NSA, has hit on a program that has connected the very kinds of dots we missed before 911, and he has done so with little inconvenience to Americans, the cooperation of most of the major telecom companies, and with both FISA oversight (periodic reviews by the courts) and the approval of those select few in Congress who were briefed on the program.

There is no doubt that the Bushies kept all of this very close to the vest, knowing that Congresspeople are nothing if not sieves.  Which is all in the nature of opportunists—who are not averse to using the appearance of impropriety as a weapon against their political opponents, even if that means undermining a successful program that has undoubtedly taught us valuable lessons about terror cell communication patterns and habits, and has likely foiled more attacks than we are aware of.

****

More, from Michelle Malkin, Macsmind, AJ Strata, Blue Crab Boulevard, Sister Toldjah, Blogs for Bush, Joe Gandelman, Rightwinged, Ogre, The Sandbox, and In the Bullpen.

Posted by Jeff G. @ 2:38pm
70 comments | Trackback

Comments (70)

  1. The part that should make everyone stop and think for a second is this-

    If you look at the sequence of events from the Able Danger fiasco, you will notice that our erring on the side of civil liberties prevented us from further investigating Moussaoui, as well as other connections to Atta and others that may have been able to give us the leads we needed to uncover the plot. This is not to say that it definitely WOULD have prevented 9/11, but the fact is that the extreme degree in which the government denied access to information from one bureau to another prevented our intelligence agencies from doing their job.

    And this, quite frankly, has to stop.

    Prevent a nuclear suitcase from detonating in downtown DC or keep the government from seeing who I call?

  2. I am very much in agreement with you Jeff.  The more I read abuot this topic the more it appears to be a manufactured controversy.  Which is not to say some people sat down in a a dark room and decided this would be a great story to release to hurt the administration, rather it probably was the case that the journalists who first found out about it publishe dit rapidly while operating under the delusion that everyone out there would be as OUTRAGED as they where.

    As a side note, what the hell is happening to Hit and Run?  Every time i go there I feel like I have less in common with the posters and commenters.  The analysis isn’t even thoughtful anymore, it’s just snarky and self-righteous.

  3. Since we seem to be recycling the same old tripe – I would ask a couple of questions of the people reacting in the manner you have subscribed;

    “How have you been harmed by this?”

    “What do you suggest in place of this?”

    “Do you own stock in Qwest”?  (Just kidding on that one…)

    But that might take thought – easier to reflexively complain.

    [Hey?!  Did I just make it through a whole comment without a typo?  Hu wuld have thunk itt?]

  4. Qwest: moral privacy-guarding corporate good citizen? or holding out for a bigger fee?

    My money’s on #2

  5. To me what is striking about all the leaks is that no one has even claimed that these programs have been used for nefarious political purposes. They COULD be of course but I suspect they would have been leaked from the get go (if normal complaints through channels had no effect) and rightly so.

  6. You know there is potential for misuse or abuse of any program the govt runs.  If you take the position that the govt is abusing the public trust – then you are irrational.  A rational person would weigh the motives of the govt to do such a thing against the possible gains.

    How could a rational person believe that the govt had an interest in their call records and what would the govt gain by tracking them?  And why would they spend the resources to do so?  What would their profit be?

  7. Aww, come on! This is obviously just a ploy! The government wants nothing less than to know which Pizza chain to invest social security money in!

    So they need EVERYONE’s phone records.

    BECAUSE OF THE GREY PANTHERS!

  8. It truly amazes me that while reporting the “new” revelation of NSA’s project, how the MSM did their collective best by failing to mention when this program became active, or who actually put it in play.  Manufactured controversy? No it couldn’t be…..The polls showing Americans ok with this tidbit of info won’t stop the pollsters from “pressing on” to acquire the desired poll numbers.  It makes me sick…. shock

  9. I want the person who’s leaking this stuff drawn and quartered.

    That said, I wonder how the press would respond to the revelation that President Roosevelt did much the same thing during WW2?

  10. As Glen Greenwald suggests and Kerr expressly claims, the illegality of the program isn’t Constitutional, but statutory.

  11. The Clinton administration’s Echelon program was far more intrusive.

    Does this mean that Malkin knows that Echelon existed, and that it ended?

    [W]hat is remarkable to me about Ms Howley’s post is its barely concealed joy over what is essentially a nuisance suit.  The information the NSA is collecting is already available on individual phone bills, and SCOTUS has ruled that such information is not covered under any expectation of privacy because, as John Stephenson notes, “there are countless numbers of people who are exposed to your phone records before your bill makes it into the envelope.”

    The entire idea of the Stored Communications Act is to protect data beyond the fourth amendment protections of expectations of privacy. Its not a nuisance suit to sue under a specifically granted statutory right. Lots of people at my webhost can look at my email stored there. But I still have a cause of action if it’s divulged.

    I’ve told you this before. You should avoid quoting stoptheaclu. They’re wrong on a lot of stuff. Stick to the Orin Kerr’s of the world.

    According to the poll, 65 percent of those interviewed said it was more important to investigate potential terrorist threats “even if it intrudes on privacy.”

    Which is not very helpful, because it is basically a restatement of the fourth amendment: privacy intrusions are permitted when they are used to investigate crime.

    But whether or not a collection of unattributed phone numbers being used for trend analysis “intrudes on privacy” in the first place is in dispute, and so the question itself, one could argue, sets up a bit of a false dichotomy

    Why do you say ‘unattributed’? This a from number and to number. Thats attributed.

    And lastly, we have not yet heard any guarantees. Legally binding guarantees, that this is limited to trend analysis. Maybe people wouldn’t mind the government having this data for that purpose. In which case the government should guarantee to follow some of the Fair Information Practices. Specifically, Finality.

    we saw patterns of behavior and communication that many felt the government should have recognized as potentially dangerous.

    What tells captain ed this? And also, the scenario that captain ed describes, of finding a known terrorist number and finding out who they called based on call histories, is not the supposed trend analysis you hail. Thats suspicion-based information gathering. Something we already have a system in place for. Among other things, the Stored Communications Act is part of that.

    Bush, using the NSA, has hit on a program that has connected the very kinds of dots we missed before 911

    How do you know this?

  12. A rational person would weigh the motives of the govt to do such a thing against the possible gains.

    Underlying this is the assumption that government acts rationally and benevolently.  Maybe you hippies think everything is sunshine and love with the feds, but I wouldn’t trust the NSA as far as I could throw ‘em.

  13. Maybe you hippies think everything is sunshine and love with the feds, but I wouldn’t trust the NSA as far as I could throw ‘em.

    What part of “irrational” did you not understand?

  14. Nice try with the Stored Communications Act, actus.  My legal trainging consists of sleeping through through Business Law and it took me two minutes to see the act specifically requires companies to provide records to the FBI on request if it ralates to counterterrorism.  The FBI may also disseminate that information to another relevant agency.

    I’m not saying that’s what they’re doing, but I am saying that I don’t believe there’s any law at all that requires the government to do more than ask for phone records when it relates to counterterrorism.

  15. jpe

    Just what makes you think the Feds have any interest that you call Pizza Hut five times a week? What are you think they are going to do? Turn you over to the food police?

  16. Nice try with the Stored Communications Act, actus.  My legal trainging consists of sleeping through through Business Law and it took me two minutes to see the act specifically requires companies to provide records to the FBI on request if it ralates to counterterrorism.

    I would think that if they were going along with this, QWEST would have turned over the stuff. But that section is about suspicion based information being turned over. We know that exists, and don’t have a problem with that. What is problematic is the suspicionless turning over of all data. That’s what it looks like is going on here.

    I’m not saying that’s what they’re doing, but I am saying that I don’t believe there’s any law at all that requires the government to do more than ask for phone records when it relates to counterterrorism.

    Right. But they have to ask for specific things, by name, and certify that name/info is “relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities.”

  17. Hayden said today,”Everything that the (NSA) has done has been lawful”.  This from a guy who did not know that the 4th Ammendment to the Constitution,requires probable cause to get a warrant. This General is not qualified to run the CIA or the NSA. Peace

  18. imahophead

    Do the police require a warrant to put you under surveillance?

    No, they don’t. They only require a warrant to SEARCH your house or WIRETAP your communications.

    They can follow you around all day long, watch where you go, who you meet, and it is the probable cause they develop from THAT intelligence gathering that they will use to get a warrant.

    We don’t figure out suspects by calling the Psychic Hotline.

    meshugga

  19. Uh, folks, there is no presumption of privacy in regards to phone numbers. Dialing the one you want to talk to tells the phone company who you want to talk to; if the number you’re calling has caller ID, your number is sent to them.

    Phone numbers are analagous to the envelope of a letter or the headers of an email or even the headers of a TCP/IP packet.  There’s no privacy possible with this information because it has to be examined in order to deliver or establish the communication in the first place.

    And, frankly, given the post-9/11 refrains about “not connecting the dots”, it’s freaking hypocrisy to complain when the government tries to build a dot-connecting system.

  20. Rather obvious point, here, but:

    If what was going on was all legal and above-board, then why the DOJ’s refusal to provide Qwest with a legal opinion?  If this is all legal, then it wouldn’t be hard to write down why, would it?

    Can anyone answer this question?

  21. Imhotep is running a tight game for this thread’s Actii; we get a grand attempt from actus which is predictably shot to hell within ten minutes, and jpe has a solid performance, but this game is all about style and grace under pressure. Imhotep’s monkey-stabbing of the keyboard presents the purest extract of ignorance that someone could hope for. I nominate him for the Thread-Stupid-Winner.

  22. Whoa whoa whoa, MF comes to the lead with a “have you stopped beating your wife” reprise. It’s truly any man’s game (has Mona unsuctioned her lips from Greenwald’s micropenis yet? She should be here…).

  23. Uh, folks, there is no presumption of privacy in regards to phone numbers.

    But the protection of this data is isn’t fourth amendment privacy, which is what I think you’re getting at with your ‘presumption of privacy.’ Its based on statutes that regulate the distribution of this data.

    we get a grand attempt from actus which is predictably shot to hell within ten minutes,

    try again.

  24. try again.

    I’m sure you will, and I’m sure that you will eventually come up with a contender. But your form, actus, you need to hit the gym, jump rope, man, hit the speed bag. You’re off.

    I didn’t want to say this, but I think you’ve lost that edge. You’re all washed up kiddo. Happens to the best of us.

  25. I didn’t want to say this, but I think you’ve lost that edge

    I must admit. To a non-law geek, this stuff sounds quite boring.  But nobody ever said being right was always exciting. Sometimes there’s more flair in flailing about. It takes creativity. And who better to do that than someone who studied creativity?

  26. But nobody ever said being right was always exciting.

    Heh. Of course, it must be exciting to be right for once after having been consistently wrong on everything…yet, you still have not proved that the program is illegal, because you cannot even describe the program. That’s the beauty of the whole ‘secret’ stuff.

    So Charlie Brown, how about a game of football?

  27. Heh. Of course, it must be exciting to be right for once after having been consistently wrong on everything…yet, you still have not proved that the program is illegal, because you cannot even describe the program.

    Great!

  28. I must admit. To a non-law geek, this stuff sounds quite boring.

    Aw, how sweet, an extra free period.  Thanks for doing your part during pledge week, actuse!

    tw: Provided.

  29. Great!

    Pretty!

    Shit-ass!

    How is that great? What’s great? What the fuck does the modifier, ‘Great’, modify?

    Answer: Not a fucking thing. This is half of your commentary, actus. You just have a bit of Teret’s syndrome and spout off stuff that is irrelevant to anything. Look up snark on an online dictionary. It usually has to do with something in the material.

    /engaging actus, who still trails Imohotep but has nosed out MF for the thread’s actii.

  30. Answer: Not a fucking thing.

    Its great that we can’t gripe about the program because we don’t know what it is. Fantastic, in fact.

    I mean, it doesn’t stop this sort of crap:

    Bush, using the NSA, has hit on a program that has connected the very kinds of dots we missed before 911,

    So its great that it stops discussion of its legality.

  31. - actus, let this serve to inform you that until you move over a few threads and pony up, you’re not only failing miserably to enliven this topic with your usual gold medal award winning Verc pinhead of the thread ratings, but most likly you’ll be required to step down as Grand Poobah Wizard of the order of Typing Telephone poles(tm).

    – Now you wouldn’t want that to happen would you? I mean you’ve worked so hard for that much deserved honor. Surely, a upstanding moonbat like yourself, a guy with a Rapier wit, and mind like a steel mouse trap, that likes to rub cream cheese all over Nancy Pelosi’s red pumps and watch her slide them on as she reads the daily Kos talking points, surely you’ll rise to the occassion. We’re counting on you actus. Don’t let us down. This is your final warning. We’re sure you’ll do the stupid thing.

  32. actus, let this serve to inform you that until you move over a few threads and pony up

    What are talking about?

  33. Priceless.

  34. - No no no….just won’t do actus….This is one time in your illustrious “dumb as a pump handle” career that your lightening fast repartee’ won’t save you.

    – Dig deep or forever be banished to that black hole of “Guys who were formerly honored Typing Telephone Poles(tm)”.

  35. – No no no….just won’t do actus….This is one time in your illustrious “dumb as a pump handle” career that your lightening fast repartee’ won’t save you.

    Again, what are you talking about? I suspect its not the NSA and the stored communications act.

  36. If the Rightwing gets a list of phone numbers the Left wants a list of ever gun owners name and address. Paece

  37. - Even better we’ll exchange Names and address’s Imhotep (steve the lesser). That way we can make every shot count. Boom!

  38. - The clock is running actus……tick tick tick

  39. The clock is running actus……tick tick tick

    I’m sorry to say you’ll be tick tocking all friday nite because I have no idea what you’re talking about.

  40. Actus, after looking closer at the Stored Communications Act I’m pretty convinced that this isn’t illegal and the lawsuit is a nuisance suit.  From the act:

    § 2702. Voluntary disclosure of customer communications or records

    (c) Exceptions for Disclosure of Customer Records.— A provider described in subsection (a) may divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by subsection (a)(1) or (a)(2))—

    (1) as otherwise authorized in section 2703;

    § 2703. Required disclosure of customer communications or records

    (c) Records Concerning Electronic Communication Service or Remote Computing Service.—

    (2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the—

    (A) name;

    (B) address;

    (C) local and long distance telephone connection records, or records of session times and durations;

    (D) length of service (including start date) and types of service utilized;

    (E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and

    (F) means and source of payment for such service (including any credit card or bank account number),

    of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).

    (e) No Cause of Action Against a Provider Disclosing Information Under This Chapter.— No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.

    If a government agency has used an administrative subpoena to ask for records from all of their customers the company has two choices if I understand administrative subpoenas correstly:

    1. They can tell them no until a court enforces the subpoena which may be what Qwest has done.

    2. They can comply with the subpoena, in which case no law has been broken by anyone and customers do not have cause for action.

  41. So, it’s Friday night, and people are talking to actus, huh?

    blank stare

  42. - Not so much “talking” to him Pablo, as reading him his rights, Maranda-rizing him, while he still has time to save his ranking and avoid Telephone Pole oblivian….. tick tick tick

  43. For instance, reacting to Michelle Malkin’s Newsday op-ed on yesterday’s blockbuster scoop …

    Malkin’s op-ed was in the New York Post, not Newsday. I understand the mistake, though. You were trying to give Michelle credit for being published in a classy newspaper that does real journalism.

    The New York Post is much more compatible with her level, though.

  44. - Whats the matter lefty…. Bitter because at least one decent paper won’t print your fucked up Marxist lies?

  45. What are talking about? 6:41p

    Again, what are you talking about? 6:53p

    I have no idea what you’re talking about. 7:49p

    HAT TRICK !!!

  46. …a classy newspaper that does real journalism….

    Oh, you want the Fantasy section- two aisles over and three rows back- beside the Science Fiction back there.

    Have a nice day!  grin

  47. Tick….tick….tick….tick……

  48. Apples and oranges, you mummy’s-boy. The data-mining project appears to be a database of numbers called, with no names or addresses attached. Thus if we discover that 867-5309 is used by a sleeper and is a land line, we can find out who’s been calling it domestically by checking it against this database. Without such a database, we could only find out who the sleeper had called, not who called them, because such records aren’t directly kept by the telcos. Utterly diferent than a list of names and addresses of gun owners.

  49. maybe you should give him a link, BBH?

  50. You know how companies state in their privacy polices (you know, those little pamphlets that you get in your bill every other month) that they may share your data with certain third parties?

    As long as the billing data sharing arrangements were voluntary on the part of the telcos (and they certainly were, as Qwest wasn’t forced to comply), then the NSA in this case is simply one such third party.

    The federal government has open access to data that is more personal and private by orders of magnitude: the details of every financial transaction you make, especially when one of them is over $10K.  The only difference is that, instead of the NSA mining the data to find interesing tidbits, the banks are required by law to do that work for the government.

    I personally belive the right to privacy is a distant derivative of the fundamental right to property, and can only be upheld when the lack of privacy amounts to the violation of property rights.  The only valid test of that is when a lack of privacy exacts a measureable and material cost.  I can claim privacy rights over the contents of my house and over the events that occur within it, because (and this is but one example in this case) the lack of privacy in these matters exposes me to a greater risk of theft, and this risk carries a material cost.

    If the telephone company wants to share billing data with the NSA, and if their posted privacy policies warn (either expressed or implied) that such sharing is possible, then how does such sharing exact a measureable and material cost on the telephone subscriber?

  51. 1)As I recall, much more intrusive abilities were inserted into the telecomm nets, at federal insistance (and at a cost of several billion in redesign.) Wireless nets, for example, capable of pulling in every syllable with moment-by-moment gps locations on a specified handset. True, use of those capabilities requires a warrant, but the system is in place to do it. Warrants are a social control, not systemic.

    2)Echelon (which as far as anyone knows is still running) was/is/could be a comm intercept program used where the easier intercept/collection route was not available – overseas.

    3)Billing connect data is the PRIMARY data for a telecomm, it’s their revenue stream. They take it seriously, and collect it relentlessly. That is their purpose. The US government has specifically made it legal for that data to be supplied to them. They pay for it, too. You don’t like it, don’t use it.

    4)Qwest will play ball. Count on it. They like doing buisness in the US.

    SB: press

    extravaganza

  52. If a government agency has used an administrative subpoena to ask for records from all of their customers the company has two choices if I understand administrative subpoenas correstly:

    Whats the statutory authorization for the administrative subpoena?

  53. Does this post make my ass look fat?

  54. maggie – So far theres little evidence he can even read, so what would be the point….Tick tick tick tick……

  55. I don’t know, it might be fun to see how he mangles it BBH.

  56. Vercingetorix writes:

    It’s truly any man’s game (has Mona unsuctioned her lips from Greenwald’s micropenis yet? She should be here…).

    How nice of you to extend such a civil invitation to enter the conversation. Since that is the relationship you attribute to me, let me quote from Greenwald, and then I will add my own explanation as to why I do not anticipate a great deal of future participation at PW:

    It’s one thing to have read almost every day that the vast majority of Americans dislike and disapprove of the Leader and that more and more Americans abandon him by the day. But to have to read that Americans overwhelmingly prefer Bill Clinton to George Bush in every area—including foreign affairs (by an embarrassing margin of 56-32%), national security (46-42%), and on the question of “which man was more honest as president” (46-41%)—must be truly difficult for those remaining Bush followers. And, indeed, it did lead one pro-Bush blogger, The Anchoress, to announce:

    I’ve decided that if I’m going to keep blogging, I’m going to have to leave off writing or reading about politics for a little while, because it’s all making me sick. . . .

    And so, for a while, I’m off the subject. We’ll talk sex, religion, baseball, opera and even – Lord help us – television. But to stay in the middle of the deleterious snakepit of politics…no…there be monsters.

    I think for the summer, my little boat will sail in the other direction.

    I actually think this is a serious danger for the Republicans this November. They have been so used to winning everything, being able to manipulate public opinion, using “the War” to generate support for everything they wanted. Now that none of it is working any longer, now that their standard tactics fail, their credibility is shattered, and their Grand Hero is exposed as a fraud—as a weak, impotent, borderline-sad figure—I think many of them will be so disillusioned and discouraged that they will simply want to tune politics out. For many people, it is simply (and understandably) depressing to have to read day after day that your views are being increasingly rejected by the country and your admired leader is disliked, distrusted and disapproved. One solution is to simply walk away from it altogether. That’s what The Anchoress chose, and I think many Bush followers will choose the same.

    This site, of course, well never walk away from politics, nor will many who comment here. The vitriol and venom will ramp up, and the right blogosphere will increasingly eat its own, a process I will sit back and watch, bag of popcorn at my side. AJ Strata says some on the right are now “Kosified,” meaning La Shawn Barber who has called for Bush’s impeachment over immigration matters, and Peggy Noonan who wants Dems to win in congressional elections this fall. Arnold Kling over TCS just said much the same as Noonan. Over at QandO some comments are also leveling the “you sound like Kos” silliness because Henke and McQ are very willing to consider that Bush’s torture and surveillance policies might be illegal, and to be alarmed. There is little aversion to considering Democrats at that site.

    Bush’s illegal activities are going to be exposed. It is simply a matter of time, because as unpopular as he is the institutional shields he has been able to rely on to forefend from rebuke will not save him. Michael Luttig just quit the 4th Cir. federal bench, and several articles have cited his profound sense of betrayal stemming from the Padilla case, in which it became clear to him that Bush is gaming the courts. Luttig had put his own credibility on the line to convince 4th Cir. panels to find for the president, and he is exposed as a trusting fool.

    Conservative jurists will have taken note, and Bush cannot forever evade judicial review of his various misfeasances.

    And so, sites like these, where Bush is always to be defended on national security and foreign policy matters, except to allow some criticism coming from the right, will continue to descend into the mindless venom and hatred that your comment about me so amply demonstrates. I may watch, but I’ll not be volunteering much to be a target of the filth.

  57. Whats the statutory authorization for the administrative subpoena?

    Your guess is as good as mine.  Congress can grant administrative subpoena power to any government agency they wish, so I imagine it depends on who sent out the thing (if they were used).  I wouldn’t have a clue where to find the statutes.

    I don’t have a clue if the NSA has that power, but I doubt it because last I heard Senator Kyl was all fired up that the FBI didn’t.  Pretty much every agency that has any regulatory capacity at all does, even the Post Office.  The Attorney General’s office does so they could have sent them.

    Also, for all I know congress could have quietly granted that power to the FBI and the spy agencies in the past year or so.  I don’t even know if administrative subpoenas have anything whatsoever to do with this story.

    That’s what gets my goat about this.  At a minimum, a competent press ought to be able to explain the process of getting the information and the legality of it before exposing classified programs relating to national security.

  58. This site, of course, well never walk away from politics, nor will many who comment here.

    You put this in the middle of a monumental bloviation to popularity contests and demagoguery which totally ignores the topic at hand?  All in response to a mock challenge for a most clueless poster contest? 

    You are going to need a special Masters Division for idiocy of this level, Verc.

  59. Your guess is as good as mine.

    Great. Because I read that the NSA doesn’t have administrative subpoena power.

    At a minimum, a competent press ought to be able to explain the process of getting the information and the legality of it before exposing classified programs relating to national security.

    Why? The explanation looks quite difficult, and depends on details. Better the experts and us debate and learn its legality, than rely on the legal opinion of a reporter.

    But sure, a competent press should explain more about these progreams.

  60. Bush’s illegal activities are going to be exposed. It is simply a matter of time, because as unpopular as he is the institutional shields he has been able to rely on to forefend from rebuke will not save him. Michael Luttig just quit the 4th Cir. federal bench, and several articles have cited his profound sense of betrayal stemming from the Padilla case, in which it became clear to him that Bush is gaming the courts

    I can hear you drooling as your write this.

    And of course those stories you read are the absolute “truth” right?

    The fact that you flatly state “Bush’s illegal activities” demonstrate you are not really worth listening to.

  61. As Glen Greenwald suggests and Kerr expressly claims, the illegality of the program isn’t Constitutional, but statutory.

    Can you point out where Kerr “expressly claims” this is “illegal”

    The fact that Greewald, who of course knows nothing of the program, would say this ought to tell you that you need to quit reading what he writes.

  62. Why? The explanation looks quite difficult, and depends on details. Better the experts and us debate and learn its legality, than rely on the legal opinion of a reporter.

    Ah yes, let us not have classifed information so “experts” and people like you “learn” how “legal” something is (which of course you would never believe anyway).

  63. I do not anticipate a great deal of future participation at PW…

    I may watch, but I’ll not be volunteering much to be a target of the filth.

    ~ Mona ~

    Pinkie swear?

  64. Ah yes, let us not have classifed information so “experts” and people like you “learn” how “legal” something is (which of course you would never believe anyway).

    Actually. Let us have the info so we can learn.

  65. actus

    while you are “learning” so is every terrorist anxious to strap on a few suicide belts and walk into Disneyland or park a car bomb on the Golden Gate Bridge.

  66. while you are “learning” so is every terrorist anxious to strap on a few suicide belts and walk into Disneyland or park a car bomb on the Golden Gate Bridge.

    They could just read the stored communications act and see the very low threshold for the feds getting subscriber records data on them.

  67. I support the program because the president would never target liberals.  However, Liberal opposition to this perfectly reasonable program is simply proof of the fundamental hostility to America treason a reason they need to be targeted by exactly this type of program.

    Those who oppose the president and claim that he would target political oppoonents DESERVE to be targeted for their anti-american opposition to his policies.

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