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EFF Sues AT&T Over NSA Wiretapping 746

Omega1045 writes "Cory Doctorow over at BoingBoing is reporting that the Electronic Frontier Foundation has just filed a lawsuit against AT&T for helping the National Security Agency execute illegal warrant-less wiretaps against American citizens. From the article: 'The lawsuits alleges that AT&T Corp. has opened its key telecommunications facilities and databases to direct access by the NSA and/or other government agencies, thereby disclosing to the government the contents of its customers' communications as well as detailed communications records about millions of its customers, including the lawsuit's class members.'"
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EFF Sues AT&T Over NSA Wiretapping

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  • Re:Not illegal. (Score:5, Informative)

    by erroneus ( 253617 ) on Tuesday January 31, 2006 @07:13PM (#14611740) Homepage
    Uh, no. Congress did not grant this power explicitly. Congress allowed military action. And from what I've heard, they are spinning this to mean that domestic wiretaps are okay. Here's the problem:

    They already have the power to do these things without a warrant so long as they go back and get the warrant within 72 hours. This gives them the ability to act on a lead immediately without the hassle of waiting on a judge. They don't want to do even THAT much -- they want whatever they are doing to be SECRET and to be UNACCOUNTABLE for it. Ultimately, I believe we will find that it is going well beyond communications where one side is 'al qaeda' and the other side is in the U.S. I think if we get to see what they are REALLY doing, we'll find investigations against anti-war and anti-Bush organizations and their members.
  • by cswiger2005 ( 905744 ) <cswiger@mac.com> on Tuesday January 31, 2006 @07:25PM (#14611853) Homepage
    How about directly linking to the article, rather than bouncing through a portal full of ads?

    http://www.eff.org/legal/cases/att/ [eff.org]

    Seems like BoingBoing.com is trolling for hits with several recent articles. I suppose there's nothing wrong with that, but I'd wish the Slashdot editors to prefer primary content to secondary sources being framed within ad bars on all sides....
  • by TheSpoom ( 715771 ) * <{ten.00mrebu} {ta} {todhsals}> on Tuesday January 31, 2006 @07:29PM (#14611895) Homepage Journal
    The problem is that to determine if there is probable cause for arrest, they're intruding on the privacy of everyone else by searching through databases containing innocent phone conversations and private information. They did not have probable cause to search through this other information. That is where the main issue lies; the privacy and security of everyone is being compromised to seek out the few that have done something wrong.
  • Re:Not illegal. (Score:2, Informative)

    by kfg ( 145172 ) on Tuesday January 31, 2006 @07:35PM (#14611935)
    The president was granted this power by congress and congress knew all along about it.

    Nonsense. Congress knew nothing about it. The wiretaps were "authorized" by the Office of Legal Council, an arm of the Justice Department full of appointed judges, appointed by. . .Guess who?

    Nor was there a lot of agreement within the OLC about the legality of the wiretaps:

    http://www.msnbc.msn.com/id/11079547/site/newsweek /print/1/displaymode/1098/ [msn.com]

    These are the same people who said that just because we signed the Geneva Convention doesn't mean we're bound by it, but can still bitch about anyone else not obeying it, because it's the law.

    I've not seen that anywhere.

    Really?

    http://www.rense.com/general69/legit.htm [rense.com]

    Well, now you have.

    KFG

  • by Wah ( 30840 ) on Tuesday January 31, 2006 @07:36PM (#14611944) Homepage Journal
    Immigrants?
    WASHINGTON - A year ago, at a Quaker Meeting House in Lake Worth, Fla., a small group of activists met to plan a protest of military recruiting at local high schools. What they didn't know was that their meeting had come to the attention of the U.S. military.

    A secret 400-page Defense Department document obtained by NBC News lists the Lake Worth meeting as a "threat" and one of more than 1,500 "suspicious incidents" across the country over a recent 10-month period.
    [full story [msn.com]]

    Jeez, a couple weeks of Doublespeak ("terrorist surviellance program") and a whole bunch of people forget what the hubbub is all about.
  • by Anonymous Coward on Tuesday January 31, 2006 @07:38PM (#14611962)
    No. It comes down to an expectation of privacy.

    The "in plain sight" rule is what you are talking about. If a crime or items related to a crime are in plain sight, there's no need for a warrant (or a search for that matter). That has nothing to do with probable cause.

    Probable cause is why you can be stopped by the police... if they don't have it, they are either guessing (bad) or harassing you (bad). What is needed for a warrant is a judge... the judge will review the application and see if there is probable cause.

    The problem with wiretaps is that they always require a warrant (under FISA, it can be a secret warrant, even approved after the fact) unless it is against someone outside of the US, or withing 15 days of the beginning of a declared war.

    Neither of those thresholds were met.

    There were no warrants, no intentions to get warrants, and the government has admitted they don't even know who all the people were which were surveiled, so it is impossible they had a reasonable cause to suspect them all.

    In other words, it was illegal, on the face of it, but because it was approved by the President and implemented in secret, there was no chance for review.

    So now that people know, they can sue those companies which participated in it without the proper warrants.
  • by speed-sf ( 721339 ) on Tuesday January 31, 2006 @07:46PM (#14612023)
    This arguement is common and dangerous. Not only do unlimited wiretaps destroy our privacy they destroy our anonymity. Free speech means I can communicate over any medium and say anything I want. Including criticism of the current government. In the private sphere of my house I cannot be prosecuted for ANYTHING I say. But these days, the Patriot Act and other dubious pieces of legislation allow the government to hold me without cause, brand me a terrorist and destroy my life. AT&T is now making that even easier, I'm not sure the best way of protecting your people and a way of life lies in destroying that which makes it free. I'm sure the American Revolution would never have happened if gov't had known about it.
  • by rm69990 ( 885744 ) on Tuesday January 31, 2006 @08:00PM (#14612125)
    This is a class-action lawsuit, on behalf of all AT&T customers in the US, not just the EFF. So it doesn't matter whether EFF's traffic was tapped or not.
  • by onwardknave ( 533210 ) on Tuesday January 31, 2006 @08:15PM (#14612219)
    Yes it's flamebait... but it's insightful flamebait. Don't dismiss it too readily as partisan politics until you can seriously argue that most politicians in favor of invasive wiretaps aren't Republicans (I doubt anyone would make that case). The demographics of U.S. politics are partially responsible too - in the desire to appear more anti-terrorist, Bush takes drastic steps which may fight terrorism, but violate the U.S. Constitution (a cute ancillary benefit is that the executive branch gains significant power over legislative checks). Republicans in congress would be politically stupid to argue against his policies. The Democrats, in order to fight critics' allegations from the last elections that they are disorganized, are practically obligated to play the civil liberties card (and rightfully so, IMO) to appear unified.
  • 300 terabyte ? (Score:2, Informative)

    by MasterCommanderZero ( 951065 ) on Tuesday January 31, 2006 @08:20PM (#14612263)
    The lawsuit also alleges that AT&T has given the government unfettered access to its over 300 terabyte "Daytona" database of caller information -- one of the largest databases in the world.


    That's 8,796,093,022,208 bit X 300 OR 1,024 Gigabyte X 300 OR if you prefer 1,048,576 Megabyte X 300.

    That's 307,200 Gigabytes(GIGS). I think they either don't know how to optimise their data or they have a hell of it.
  • Re:Not illegal. (Score:2, Informative)

    by plantman-the-womb-st ( 776722 ) on Tuesday January 31, 2006 @08:20PM (#14612268)
    Congress did not declare war, and last I checked, Al Qaeda is not a nation.
  • Re:you serious? (Score:1, Informative)

    by Anonymous Coward on Tuesday January 31, 2006 @08:36PM (#14612346)
    Are you serious? There is hardly a concensus. From your Wikipedia link: "FISA ... makes it very clear that this is not the case. It allows the President to authorize electronic surveillance without a court order so long as, "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." (1802 B)" A link to the FISA law in question: http://caselaw.lp.findlaw.com/casecode/uscodes/50/ chapters/36/subchapters/i/sections/section_1802.ht ml [findlaw.com]
  • Re:Nice, Except (Score:4, Informative)

    by delong ( 125205 ) on Tuesday January 31, 2006 @08:46PM (#14612399)
    The Constitution does allow for warrantless searches.

    The Fourth Amendment has two clauses - 1. no unreasonable search and seizures, and 2. the warrant clause. Not all searches and seizures require a warrant. For example, searches incident to arrest, "open container" vehicle searches, and (importantly for this discussion) foreign intelligence signals intelligence.

    What's more, not all searches and seizures are forbidden, only those that are unreasonable. The interception of the communications of known foreign enemies of the US is per se reasonable.
  • by thule ( 9041 ) on Tuesday January 31, 2006 @09:11PM (#14612551) Homepage
    What do you call a person within the boarders of a country, not a citizen of the country, during the time of war, without any sort of uniform, receiving communication from the enemy? This is the type of person that 150 years ago would not be arrested by the police, and not tried by citizen courts. If you look at things this way, it is very easy to see why the administration went to Congress and informed them on what they were doing, and nothing was done. It would also explain why the administration believes they are doing the right thing, within the law.
  • by asuffield ( 111848 ) <asuffield@suffields.me.uk> on Tuesday January 31, 2006 @09:23PM (#14612617)
    Most of those aren't ads, they're permanent picture links to stuff that the editors think is cool. Who the hell advertises "Impeach Bush"?

    Anyway, boingboing doesn't appear to be doing anything they haven't been doing for years - collecting interesting stuff from the internet and putting it on boingboing. It's like slashdot, only with interesting stuff and fewer idiots doing the writing. I can only guess that random users have been submitting things to slasdot that they saw on boingboing more often - I haven't noticed any of it coming from the boingboing editors.
  • Join EFF (Score:4, Informative)

    by samj ( 115984 ) * <samj@samj.net> on Tuesday January 31, 2006 @09:30PM (#14612650) Homepage
    Like what you see? Want to see more of it? You can. Join EFF.
  • Great except (Score:1, Informative)

    by reedk ( 43097 ) on Tuesday January 31, 2006 @09:58PM (#14612800) Homepage
    They aren't (currently anyway) illegal.
  • by ralphclark ( 11346 ) on Tuesday January 31, 2006 @11:55PM (#14613364) Journal
    I'm often critical of the way politics works in the US but this is one valuable thing you Yanks do have over us Brits - the ability to sue the government. In the UK we have something called "Crown Immunity" which basically means a British subject can't sue an institution run by the "Crown" i.e. the UK government (IANAL though). It's a real pisser being a "subject" sometimes. Though it hardly needs to be said there are plenty of republics where "citizens" are treated rather worse.
  • by Smallpond ( 221300 ) on Wednesday February 01, 2006 @12:24AM (#14613480) Homepage Journal
    Actually, you are right. Bush didn't do the spying. He authorized the NSA to do it for him.

    "In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al-Qaeda and related terrorist organizations."

    -- G. W. Bush, Radio Address, Dec 2005

    Now lets look at that Constituion, shall we?

    "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."

    -- Former 4th amendment to the US Constitution (now obsolete)

    Oh, and I should point out that "the people" has been interpreted not just to mean US citizens. See Landon v. Plasencia, 459 U.S. 21, 32-4 ('82).
  • by nomadic ( 141991 ) <nomadicworld@@@gmail...com> on Wednesday February 01, 2006 @01:50AM (#14613783) Homepage
    We have something called "sovereign immunity", which is the same thing. The difference is in the US Congress and the Courts have carved out broad exceptions to it, by either a) explicitly waiving the immunity in a statute (for example, the Tucker Act allows persons who create contracts with the federal government to sue under contract law in disputes), or b) where the Courts will construe a statute to effectively waive it.
  • by Quadraginta ( 902985 ) on Wednesday February 01, 2006 @03:39AM (#14614095)
    It's likely the people suing would be required to show that they have been directly harmed.

    The EFF found a few subscribers of AT&T to allege violation of their First and Fourth Amendment rights, and have asked every similarly-situated subscriber to be joined to make it a class-action suit. The EFF is not in fact suing the government itself, the named plaintiffs (and potentially the millions of unnamed members of the class) are. The EFF is just providing the lawyers.

    The standard would likely be lower for suing AT&T, which could be as simple as breach of a privacy contract.

    No, AT&T is obligated to give up information on their subscribers in response to any lawful government order, private privacy agreements notwithstanding. That's why they can comply with ordinary secret wiretap orders without telling you, and you can't sue them for breach of contract.

    The complaint alleges, first, that AT&T acting as an agent of the government violated the plaintiffs First and Fourth Amendment rights by not securing a warrant for a wiretap and mining AT&T's "Daytona" database. Obviously, the Court could not find for the plaintiffs without finding that the President has no constitutional or statutory authority to order wiretaps of this nature without a warrant. Additionally, it would need to find that AT&T was acting as the government's agent, and not merely complying with an order it thought, or had good reason to think, was legal.

    This is a tall order, especially with regard to finding AT&T an agent of the government. I suspect it's the equivalent of the following: you work at the DMV, and a policeman comes in, shows you his badge, and asks you to run the plates of a certain car and tell you the owner's address, because he's investigating a certain crime. He's asked you to do this many times before, you know for a fact he works for the PD, and you know for a fact the crime he mentions exists, because you saw it on the news. But -- alas -- it turns out the cop was not acting officially. He was merely sneakily finding out where his ex-girlfriend was living. So the ex-GF sues you for violating her Fourth Amendment rights. Is the Court going to back her up? Mmm, sounds unlikely. Sounds like you were just doing your job and responded to what any reasonable person would think was a legal order from law enforcement. The ex-GF has a case against the cop, sure. But not against you. Similarly, I 'spect a Federal judge is going to tell the EFF the plaintiffs might have a case against the United States, but not against AT&T.

    The complaint alleges, second, that AT&T violated FISA because they knew, or should have known, that the government order to wiretap without a FISA warrant was illegal, notwithstanding that it was signed by the Attorney General of the United States or his representative. Um, sure. Good luck with that one, boys.

    The remaining counts are a couple of Hail Marys alleging violation of the usual wiretap laws -- which relies on AT&T's defense that it was obeying a legal (or apparently legal or legal at the time) order not holding up -- and for violating California's business code because AT&T deceived subscribers into thinking their communications would not be monitored illegally by the NSA.

    I would be shocked if the EFF expects to prevail on this at any level, except maybe barely possibly at the trial court level if they do get venue in San Francisco and can seat a load of ACT-UP activists on the jury. But, mmmm, any way it turns out, it's very good publicity. Look how long this comment thread is...
  • by faedle ( 114018 ) on Wednesday February 01, 2006 @09:49AM (#14615024) Homepage Journal
    AT&T also have the right to inspect any package (in this case conversation) passing through it's network that it suspects of breaking the law?

    No. The Telecommunications Privacy Act (TCPA) specifically prevents common carriers and local exchange carriers from this activity.

    And, technically, the rank-and-file employees of the USPS don't have that ability either. Only Postal Inspectors, who are fully deputized federal law enforcement officers, have that ability.
  • Re:I'm out too (Score:1, Informative)

    by Anonymous Coward on Wednesday February 01, 2006 @10:05AM (#14615137)
    "So why again, is it necessary to bypass the oversight measures put in place by congress?"

    Yet another AC here (wanna know something about tyranny of opinion? take a look at who goes AC).

    Anyway, you asked the question didn't you? And as so many others you seem to vehemently believe that there are no conceivable valid answers to that question. But is that the case? Or could it be that a large proportion of those voicing their opinion have no practical experience or knowledge and as such go into the oh so typical traps of couchpotato quarterbacking. I swear most act like they would make any bureaucrat from hell proud in their total lack of realism and practicality.

    I'm not discussing whether or not what was actually done (which we have rather few details about) was/is legal or not. You can find excellent discussion about that in replies by others (the thread where susanno is modded up) and it should be obvious that with the limited amount of information we have it is not clear-cut either way. No, what I'm posting about is whether or not it is conceivable that the use of FISA becomes impractical for valid reasons.

    Sometimes seconds count and not just one second but hours, days, weeks and even months of seconds. By this I do not mean that those involved necessarily couldn't have managed to put in motion a FISA-approval during the first 72 hours, only that those involved have much more important things to do. Yes that mostly includes inordinate amounts of attentive waiting.

    Counterargument: that can be solved by throwing manpower onto it.

    Counter counterargument: possibly for individual cases although both in individual cases and generally speaking there is a big argument against this because we're talking about covert surveillance -- increasing the number of people involved will always be a security risk in itself simply because of the increased numbers and the increased amount of information and details retransmitted. In other words: there are valid reasons why the puzzlers love throwing machines rather than people at problems...

    So far I'm not saying that the above arguments might be present in all cases, but if there is any justification at all then at least enough of the cases have a high degreee of probability of including those arguments. Many enough to make FISA impractical.

    Let's say you find three laptops, seven mobile phones, 20 SIMs, and a satelite phone after a priority raid in Afghanistan. The foundation aren't known for their IT provess and the laptops run w95/98 and the phones are all standard consumer models. Nada encryption. In total something close to 300 phone numbers are found locally on the devices and the CID/SIM tracking coughs up something like 3000 unique numbers from past calls. All the data is sent to the puzzlers who adds it in the bin and starts crossreferencing which results in the adding of let's say 100 numbers to the watchlist. The watchlist is always on.

    You do not know which of those 100 numbers, if any, are ever going to be used, if the present user will have any connection at all with the previous use of that number and so on (although the crosschecking has removed the obviously uninteresting ones). You cannot ask FISA for a warrant yet both because you can't and must not for security reasons give FISA all the numbers on the watchlist (far more than 100) and because most of the numbers on the watchlist will never be used before they fall of the list and lastly because no wiretapping has taken place at this point in time. Neither is it always possible to determine (at the time before the number is used) if the number is inside or outside the US

    As time goes on some of the numbers on the watchlist are used and tapped. In many cases it will become obvious after a small amount of analysis that it doesn't belong on the list and is taken off.

    But let's say we cherrypick a situation where the number is known to be inside the US and owned by a US citizen and has been in this citizens possesion for years. T

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