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.'"
LOCAL CALLS (Score:1, Insightful)
Flip Side? (Score:3, Insightful)
Re:For the love of all that's good... (Score:5, Insightful)
You cant just ignore something and hope it goes away, they are fighting the good fight within the system .. and are losing some ground, but I dont see anyone else trying as hard.
Re:For the love of all that's good... (Score:1, Insightful)
Re:Flip Side? (Score:1, Insightful)
Excuse me? (Score:5, Insightful)
Is that what you'd recommend in the face of arrogance and tyranny?
Do you think governmental abuses of power... (Score:5, Insightful)
When has that ever happened?
Laws against warrantless spying on US citizens exist for a reason. History demonstrates that when the government has this power, they don't just use it on terrorists. First they use it on terrorists, but then they use it on drug dealers. Next come child pornographers. After that, conventional pornographers. Then, "radical" artists and dissidents.
Before long, they're spying on the modern-day heirs to the radical legacy of Martin Luther King and John Lennon.
Re:For the love of all that's good... (Score:5, Insightful)
All that is necessary for evil to succeed is good men do nothing.
I'd rather they kept plugging away, regardless of losses. If there's one less soldier on your side, it's all the more likely the other side will prevail.
not the typical class action suit... (Score:5, Insightful)
The text of the EFF lawsuit [eff.org] requests damages of $100 per day for each day the violation occurred or $10,000 (whichever is greater) be paid to each class member. Sure beats getting a coupon for $10 off our next purchase of a bill of rights.
Seth
What ever happened to ... (Score:2, Insightful)
From what I can remember my trooper friend saying. "If it's visible by the Post Man, I don't need a warrant." Meaning if some idiot decides to grow weed on the coffee table in front of the picture window, the police can knock the door down and arrest everyone, without a warrant.
Doesn't this procedure fall under probable cause? They had cause to believe these imagrants, who weren't even US Citizens, had ties to terrorism. Isn't that enough?
Correct me if I'm wrong, I'm not a lawyer or anything. You can tell by my spelling.
Re:For the love of all that's good... (Score:2, Insightful)
The problem is what recourse do you have when you have a congress who values party loyalty above the constituion of the unites states? I certainly don't think the courts are an option in this case since they have been packed with republicans all the way up and down the chain. I certainly don't expect any of those nominees to have more of a loyalty to the constitution then the congress does.
Yes the EFF will lose this case, no I don't know what the alternative is. It seems like we are SOL on this one. Even if the congress changes parties in the next election it will be too late and nothing will be done (not that there is a whole lot of difference between them in the first place).
Re:For the love of all that's good... (Score:3, Insightful)
Ironically, all that is necessary for good to fail is for good men to be ignorant.
already seen it (Score:4, Insightful)
This is the litmus test for true American Patriotism. If you aren't outraged, you aren't a patriot. At best, you are a nationalist.
The Alternative (Score:5, Insightful)
Instead you take a page from the *IAA Big Book o' Lawsuits. Go after the bottom of the food chain (Grokster anyone?). Find cases where smaller independant or regional telecoms/isps have given up data, and go after them, building precedent to use for later cases.
Re:For the love of all that's good... (Score:2, Insightful)
Re:Not illegal. (Score:5, Insightful)
For a history of how the US government dealt with communication during wars, read up on Ben Franklin on the NSA web site. Interesting reading.
Re:For the love of all that's good... (Score:4, Insightful)
But even beyond that, the matter is highly controversial and hotly debated. There's the question of the extent of the Executive's power to conduct military operations during wartime. There's the question of whether or not the definition of "military operations" includes intelligence-gathering operations conducted by the Executive. There's the question of the wisdom of arbitrarily curbing the Executive's constituional authority, which would make it more difficult for the Executive to fulfill its constitutional responsiblities.
And these are just a few of the more interesting (to me) questions of principle. There's also the practical questions: how much of what's being said about this issue is FUD from partisans, extremists, the media-industrial complex, etc.
Then there's the technical questions: You raid a cell in Pakistan, find a U.S. phone number on a computer there. In criminal justice terms, that's not probable cause to tap a phone line. What do you do? Give up? Hope that number doesn't reach an active cell planning to smuggle an Iranian suitcase nuke across the Mexican border? Or do you say, I'm Executive, the Constitution gives me the responsibility to do whatever I can and whatever I need to do to protect the country in time of war, and Congress has told me this is a time of war, so tap that fucker and let's see what's up?
Now, I admit that the responsible answer to that question depends a lot on the answers to the preceding questions. My point is that there is no consensus on the preceding questions, and therefore it's not at all obvious that AT&T did anything illegal.
There's nothing wrong with suing a company allegedly did something "obviously illegal". There is a problem with suing a company that did something not obviously illegal, and losing the suit. The problem is that this sets a precedent whereby the not obviously illegal act becomes obviously legal. This would be the oppsite of a Good Thing.
Personally, having forgotten to get fitted for a tinfoil beanie when I signed up for my
Re:Not illegal. (Score:3, Insightful)
From one of the deep-linked pages:I'm all for letting companies collect necessary customer information but there's just something about a database that large which really makes me doubt that it's used solely for business-related purposes. There's nothing which an oppressive government regime enjoys more than a database which contains so much information that, at any time of any day, they could probably massage the database into providing damning evidence against anyone.
Nice, Except (Score:5, Insightful)
Re:For the love of all that's good... (Score:5, Insightful)
Bad enough I'm feeding the troll here, but please, don't repeat the trolls, that gets them really excited.
Re:For the love of all that's good... (Score:2, Insightful)
with cause, you can get a *warrant*. (Score:4, Insightful)
Short answer, no.
Long answer, even if you have cause, *to wiretap, you need a warrant*. A warrant which is really, really easy to get, can be obtained after the wiretap is done in most cases.
This is the reason why even right-wing folks are having a hard time swallowing this whopper. The only reason that makes sense to anyone for doing this type of work in a secret program without asking for judicial approval is that they're doing something fundamentally wrong, like spying on domestic citizens without discrimination, i.e. no ( reasonably, possible ) probable cause. Most likely, they're casting the net really, really wide... I'm not sure we should buy the "only calls originating outside the U.S." statement, but even in that case, uh, are they monitoring *all* calls from outside the U.S. ? That wouldn't fall under the guidelines, sorry... but it might be possible to get a huge number of warrants every day for all of the calls you actually monitored. The only issue is that it *could* get out that you're doing that ( FISA lets us know how many such warrants are issued ), people would complain that you're wasting resources/invading privacy, and terrorists would stop making phone calls into the U.S., defeating the program. Really, though, if they weren't doing something wrong, it wouldn't be secret, it's that simple. Also, think about it for a minute : if it was something G.W. thought Congress ( and the public ) would approve of, he could get the autorization needed, right ?
If the issue is really calls originating from outside the U.S., and the current law leaves the legality of tapping those calls when they connect in the states in doubt, how hard would it be for some PATRIOT rider to explicitly authorize that? Somehow, I and plenty of other critical thinking people don't believe that's the reason this program is secret and avoids the judicial review rubber-stamp process we've set up.
The whole "probable cause" thing AFAIK ( IANAL, either ) is a slippery-slope type argument along the lines of "any reasonable judge anywhere would give you a warrant ( given the obvious evidence), so you can act as if you have one in this case"... but I've only ever heard of it applied in cases of searches where clear evidence is present ( though the definition of "clear" has been getting lower and lower ), and in cases where it's abused, the searching law officer can open themselves up to charges or, more often, end up with evidence being thrown out as a result of unlawful search ( again, this happens less and less ).
My best guess ( without knowing how the secret program operated ) is that they're randomly intercepting any and all foreign-routed calls ( and maybe others ), in such a way that even the most pro-government judge would hesitate to authorize so many unfocused, unfounded wiretaps, and for whatever reason, they decided that asking Congress for permission to do what they wanted either wasn't needed or wouldn't work. They're claiming it's not needed, but they might only be right with Alito on the supreme court... which I guess does make this whole thing a bit of a moot point. It's not like the administration is going to be punished for doing *anything* wrong, no matter what it is, now...
"if you're doing nothing wrong, then you have noth (Score:5, Insightful)
Re:For the love of all that's good... (Score:3, Insightful)
You do some legwork - find out who owns that phone line. See if they have any other connections that makes them suspicious and if they do, then you've got your probable cause. If they don't - then you've probably got bigger fish to fry. It isn't like fatherland security has a bunch of agents sitting around twiddling their thumbs waiting for new leads to pop up.
They've already got information overload, a couple of orders of magnitude more information per agent than they had before 9/11 - and they obviously did not have enough agents then because all the clues they needed to prevent 9/11 were already recorded and filed. Tapping even more phonelines isn't going to make the investigators more efficient - its going to make them waste even more time on pointless "leads."
Re:For the love of all that's good... (Score:1, Insightful)
Your example is bogus. Contact of a known terrorist? Of course that's probable cause.
I'm Executive, the Constitution gives me the responsibility to do whatever I can and whatever I need to do to protect the country in time of war
This is also bogus. It gives the responsibility to protect the country, but as far as the _power_, "whatever I can and whatever I need to do" is way off the mark. The President is still bound by the Constitution that their powers come from, and also by the laws Congress passes (as long as those are constitutional).
Illegal and extremely scary if you know about FISA (Score:5, Insightful)
Let me tell you two reasons to fear the side-stepping of FISA courts both dealing with the already scary nature of the secret courts. The first is that of about 19,000 applications for permission to wiretap from 1979-2004 only four have ever been rejected [epic.org] by the court. Obviously, in legitimate cases of security issues, the FISA court doesn't stand much in the way.
The second reason is that according to 50 U.S.C. Sec. 1805(f)(2), the Attorney General has up to 72 hours after starting wiretapping to get approval. If they get a legitimate hot tip, then they can start tapping immediately and get approval afterwards. If not approved, then the evidence can't be used in court but as mentioned above only 4 applications have ever been rejected.
Given that FISA extremely rarely rejects requests put before it and that you don't have to get permission before you can start, there are only two reasons possible why Bush doesn't want to go to the court.
Lastly, the President was NOT authorized by Congress to do this under any legitimate interpretation. He was given authority to use force against terrorists. He was not given authority to wipe his rear end with the 4th and 6th Amendments like he claims he is. If it even were possible for Congress to authorize this, then there are effectively no limits on what powers he may assume.
Incidentally, regardless of your stance for or against abortion, the limits of executive power is the number one reason to give a damn about Judge Alito. The man is a fascist who does not accept any reasonable limits on executive power [consortiumnews.com] and police power. Just look at two of his rulings. (1 [boston.com] 2 [typepad.com]) (But hey, we can always rely on the media to cover the important stuff like his equivocation on abortion and the padding of his resume with an elitist, racist group, right?)
Re:Not illegal. (Score:3, Insightful)
The administration is being extremely sneaky with their words. You have to realize that there are at least 3 seperate sets of actions being discussed:
Notice how they describe this as 'terrorism survelience'. They say, they want to know when 'al-Qaida' calls. The problem is, from a constitutional perspective, the only way they can claim that 'al-Qaida' is calling is if the call originates from the US penal system.
What they really seem to be doing is monitoring calls from: "Might be al-Qaida" to "Less likely to be al-Qaida".
The gotcha is, everybody in the USA fits somewhere in this range, AND they have discarded all the legislative and judical safeguards.
Don't worry. As long as you can rat out 3 other 'terrorists' when they come for you, you will get off easy...
Miles
IANAL, but (Score:5, Insightful)
For example, how many here actually went out and read the Supreme Court's opinion in the Grokster case? I did. And I was struck by how this was a real victory for the technology industry for two reasons:
1) The Supreme Court refused to revisit the Betamax precident.
2) The Supreme Court only allowed one to look for liability based on active inducement, so while this might not protect Grokster, Kazaa, etc who build their business models around the premise that people are going to violate copyrights, it does protect BitTorrent and others who build their business models arround legal uses of the technology. IMO, Betamax really wasn't intended to protect those who, in bad faith, actively encourage copyright infringement.
So while Grokster lost the appeal to the Supreme Court, the EFF did us all a service in helping to ensure that the previous precidents protecting our ability to invent new technologies and communiciations media continued to stand.
So you can't just look at raw numbers as to who the final judgements favored. You really have to read the opinions. The EFF is doing us all a great service in their representation. It is unfair to characterize them as harmful.
Re:Excuse me? (Score:5, Insightful)
The US is full of examples that counter your point. Don't blame the US because you can't succeed.
"What can we, as individuals, really do? "
Change the country. What? you think there is some sort of hive mind doing all this? no, it's just individuals.
Participate or don't be counted, your choice.
The scary thing is (Score:1, Insightful)
20 years ago any of this would have been grounds for immediate removal from office. Now everyone is just content to let that fly. WTF? What bizzaro world am I living in?
Re:For the love of all that's good... (Score:5, Insightful)
"But even beyond that, the matter is highly controversial and hotly debated. There's the question of the extent of the Executive's power to conduct military operations during wartime."
The matter is controversial, and there's no denying it's being hotly debated. The issues of law, however, are not so tenuous as you seem to think. Every argument that the White House has offered has been quite thoroughly refuted. About the simplest and clearest summary of these arguments can be found in Al Gore's speech on MLK day. And before anyone screams 'bias!': read the speech and weigh his statements on their merits. I'm not asking you to buy his conclusions, I'm asking you to consider his arguments and draw your own conclusions.
"You raid a cell in Pakistan, find a U.S. phone number on a computer there. In criminal justice terms, that's not probable cause to tap a phone line."
That almost certainly is probable cause, and because it's an espionage- and national security-related issue, the FISA court could readily be expected to issue a warrant for this.
In terms of spying on Americans, however, there must be a warrant. Article 4 of the constitution asserts this.
With regards to whatever 'War powers' the president might or might not have, he was explicitly denied the exercise of those powers in the US by Congress. When the White House asked the House to explicitly place US territory within the scope of the bill giving the president the right to use all means necessary, they refused. This is a matter of public record. It is therefore proven that Congress authorised no such program, and the warrant-less surveillance of individuals on US soil is illegal and unconstitutional.
Again, you're right to say that the issue of whether the president should conduct unwarranted surveillance on US soil is controversial and hotly debated. The issue of whether it is legal to do so today is not.
But back to the issue of whether AT&T is breaking the law - the details will have to come out before anyone can venture a reasoned opinion on this, I think. Even if AT&T's lawyers concluded that the unwarranted surveillance was illegal, they might still feel that the company had to comply with a US government order.
Re:IANAL, but (Score:5, Insightful)
Win or lose, the fact that someone says, "Hey, you can't do that" and uses the system to complain is precisely one of the good things about the U.S. system. It keeps people from resorting to illegal actions during the dispute, and, hopefully, comes out with a just resolution, making the country stronger, or keeping it from being abused.
When people remain silent about their dislike of government's actions, people stop trusting the government, and a resentment builds which is dangerous in the long term.
There is a very good reason why people say that a requirement for a longer term successful democracy is a "loyal opposition."
Are you serious? (Score:2, Insightful)
There were no warrants. That's the whole problem.
AT&T is expected to ask to see the court-issued warrant. Just like you would, when the police come to your door and ask to turn your house upside-down to protect everyone from terrorists.
Re:Yes illegal. (Score:3, Insightful)
We tried that. 1939. Didn't turn out so well.
And this is coming from me as a libertarian who agrees we should not be so entrenched overseas... but there are places where our nose does belong. Iran is probably trying to create nuclear weapons. Their public policy is that Israel should be blown off the face of the Earth. Is it OK for us to intervene now?
But I think you're implying that it's OK for Osama bin Laden to kill 3000 innocent Americans because the US had bases in Saudi Arabia. Is that what you're saying? Because that was the main reason Osama was supposedly pissed at us. Then Saddam Hussein attacked Kuwait and we went to war to push him back, and then Osama said he was mad because Iraqi children died then and in the aftermath. Did he blame Saddam? A little, but mostly us.
Or does he just want to spread militant Islam across the globe?
See, it's hard to tell exactly what Osama wants, because he's said all of these things and more, depending on what he thinks will go over best with the current group that would like to appease him. The latest is that they will stop plotting to kill Americans if we pull out of Iraq. Right...
We weren't in Iraq or Afghanistan when 9/11 happened. Nor when they bombed the embassies in Africa. Nor when they originally tried to bomb the twin towers.
There is no rhyme or reason to madmen, so please, spare us the attempt to try and suggest that if we just appease the terrorists, they'll leave us alone. It has never worked.
Re:Excuse me? (Score:4, Insightful)
"Let them eat cake" comes to mind. You were probably too eager with your ridicule to remember that, though.
What can we, as individuals, really do? (Score:5, Insightful)
Re:"if you're doing nothing wrong, then you have n (Score:5, Insightful)
Re:Not illegal. (Score:3, Insightful)
I have no problem with the government surveilling our active stated enemies. I do have a problem with the President doing so.
The President is not the government.
This is one of my biggest concerns. As we've seen, the President has determined that various American organizations--organizations which, coincidentally, don't agree with his policies--are worthy of spying. No one had to go in front of a judge and say, "Hey, we want to spy on these guys because they're against the war in Iraq."
I want the rest of the government involved in these decisions. The information as to who is being spied upon should be available to all members of the House Special Intelligence Committee and the Senate's Committee on Intelligence. There should be judges involved in looking at the government's reasons for assuming that a group should be spied upon before allowing them to do so.
Again, the concept that the President alone shall decide who qualifies as an "enemy of the state" is a frightening thing.
Re:The Alternative (Score:2, Insightful)
But they also help set the precedents and rules where the EFF leaders feel they should be set. The original and current leadership feel these standards should be sane, legislated, and protecting the rights of people in the electronic world. It was only under Jerry Berman that they became complete Washington lobbying whores and signed onto the Electronic Communications Privacy Act, hoping for lobbying money from the telecoms by selling their souls to put in the weird pornography and other provisions and arrange funding for telecom pork barrel lobbying that got cut in the final drafts.
Fortunately, Berman is gone now: people like John Perry Barlow have helped guide the EFF back to its original purposes. And the warrantless searches were in fact a huge tactical error by our current administration. It's a direct violation of the checks and balances in the constitution to say "oh, we're going to ignore the precedents and procedures in place simply to make our lives easy".
Suing the wrong people (Score:3, Insightful)
Re:IANAL, but (Score:5, Insightful)
Among these are the current EFF v. AT&T and Padilla v. Hanft.
In general even if I don't agree with the way cerain judges rule, I have to admit that most of them really try hard. I would note the way in which Judge Luttig and his pannel first ruled in favor of the Bush Administration in Padilla in an opinion that appeared to unconditionally defer things to the executive and then later refused to allow the Administration to reclassify Padilla as something other than an enemy combattant so that the Supreme Court could review the case. Though I think they got it wrong the first time, I think they did the right thing in trying to prevent the Administration from circumventing the Supreme Court's oversight.
IANAL, of course.
Re:For the love of all that's good... (Score:2, Insightful)
This is an old debate, it just so happens that it is easily polarized through the two parties. This is of course, and election year for many congressmen though. I have a feeling the president will not have as much support in congress than we think. If you watched the Alito hearings (I watched everyday, the whole thing because Im a freak for constitutional law), most of the senators on the judiciary committee had some pointed questions about executive power and the wiretapping issues, on both sides of the isle. The beauty of the American system is that, even when you have one party in control of the executive and the legislative, the legislative still doesnt want to lose their power because next term you may have that democrat president with a unitary executive with loads of power!
Cutting Past Uncomfortable Logic (Score:5, Insightful)
The whole point of a lawsuit, after all, is to try to prove that somebody did something illegal. In fact, if the EFF loses this case, it will establish a precedent that what AT&T did is not illegal.
Go on, go on... I know you can do it! The next logical step is... If the EFF /wins/ this case, it establishes what AT&T did was illegal! And possibly even the order itself! Maybe that's what the EFF is trying to do! Now you can argue that they do not have the track record to do this, but I can't see how you miss the whole point of their lawsuit... and get modded +5.
There's the question of the wisdom of arbitrarily curbing the Executive's constituional authority, which would make it more difficult for the Executive to fulfill its constitutional responsiblities.
Nothing arbitrary about it. Either the Executive has that power, or not. The courts tend to decide such matters. You seem to be trying to create grey areas where there are none. And dropping the word "constitutional" repeatedly in your statement seemingly supporting the Executive tapping whoever they want does not show it has that power. What next, the Executive can do whatever they want, no balances, no protections, no laws?
I hope that the EFF does lose this suit, thus bolstering Bush's case for Executive freedom of action in military matters during wartime
Oh good god, that /is/ what you're "arguing"! Sad when statements like these come from Americans, and then we tell the rest of the world that we're going to teach them how to run Republics, and what freedom is about. So the prez can tap whoever he likes without court approval? How about jail whoever he likes (if he calls them terrorists, of course)? Indefinitely? And as this DOJ has argued, these terrorists will just use lawyers to pass messages to other terrorists, so we deny them lawyers, too? In fact, we can't let anyone know we have them, so we take them in secret, and don't even admit we have them (of course, real terrorists would notice that their operatives have been "disappeared"... but don't confuse me with logic!). You know what would help the war? Internment camps! Hey, worked for us before! Let's jail everyone of the ethnicity we declare war on this week (of course, war wasn't really declared... but don't stop me, I'm on a roll!), and their lawyers, and anyone else who supports these terrorists... like those kids with their anti-war signs, and their anti-Bush signs. Hell, let's jail anyone with anti-Bush signs! You either with us or against us, ya know! Why does this all sound so familiar, though? I feel like I've read this all before... Oh, right, those history books, in the chapter usually titled "The Start of Great Police States".
You raid a cell in Pakistan, find a U.S. phone number on a computer there. In criminal justice terms, that's not probable cause to tap a phone line.
Don't be silly. Of course it is. Especially with our secret, rubber-stamp FISA court. The least we can do is keep track of what the Executive is doing. What next? A secret Executive? Nevermind, don't reply, it will just depress me.
Re:this is a mistake by EFF (Score:3, Insightful)
Failure of the media (Score:3, Insightful)
Explaining the reasoning behind Bush's position, that he and Alberto Gonzales think Congress allowed it when they passed the authorization of military force in 2001, yet that Alberto Gonzales refused to ask for legislation to amend the authorization because he knew that the legislation would not pass. Explaining that this interpretation would depend entirely on whether or not an authorization to use military force is included in the definition of a declaration of war will not make the news. Talking about Supreme Court precedents related to this, like East District of Michigan v. United States, I think it was called, would not make the news either.
The most I have ever seen any of this in the media was in a written two page report carried by the written MSNBC, with only two paragraphs of Bush's lawyers explaining about the authorization and declaration of war part, which to my knowledge did not air on the television network.
With CNN's very frequent recycling of headlines, and the bottom crawler, it is very obvious they want to be as accessable to people just tuning in as possible, trying to talk about as many current issues as possible, meaning to me that CNN is just trying to be a poorly performed version of CNN.com. The Internet, or the newspaper, if you can bother figuring out how to flip through the pages now days, will always trump TV for that reason. CNN borrows nearly all congressional footage from C-SPAN with permission, and cuts to them frequently, but it seems very, very wrong to me to advertise to watch the Alito hearings on CNN where there is a version not punctuated by advertisements and Woolf Blitzer saying, "This is the Situation Room. Stay tuned. You're watching CNN."
In year 1984, you listen to your phone. In year 2004, your phone listens to you.
American Values (Score:4, Insightful)
We used to have a heritage of civilian control of the police and military. Now that civil government no longer exercises that control, it's a short step to reversing it. Betraying that heritage is treason against not just the country, but humanity. Bush has done more to hurt our country than bin Laden could dream of.
Re:Nice, Except (Score:3, Insightful)
Re:IANAL, but (Score:2, Insightful)
Re:I will never give money to the EFF again. (Score:3, Insightful)
no, it did not.
"Bush didn't make up that power. "
no, but he has expanded it to include far more things then ever before.
That said, the NSA can not go snooping there citizens files, and then find something and say "Well it's ok becasue we happened to find something."
There is the issue of the government demanding records without a warrent or court order. Now if they were on a time criticle case, they cuold ahve gotten a FISA warrent after the fact, assuming the had proper evidence before the fact.
But I ma sure people like you wouldn't mind if the goverbnment stormed your businees, riffled all you records, gather person infomration on all your phone records becasue they say they are hunting Al Queda. No proof, evidence, wittness, needed.
". I would probably agree that there should be oversight on this program to make sure there are no abuses, however I would strongly disagree that it should be stopped."
there is an oversite, but they completly disregarded it.
"EFF is on the wrong side here. It is like they are turning into the ACLU."
oh, I see, you only think people should have rights that you agree with, gotcha.
Re:Nice, Except (Score:4, Insightful)
Uh, I don't see the text "arrest," "open container," "vehicle," or "signals intelligence" anywhere in the text of the 4th ammendment.
Obviously there is a need for balance in times of war, but is it really that horrible to ask the president to at least check in with a secret court within 72 hours of starting a tap? The very concept of a secret court in itself is pretty bad, but to not even require that?
Terry stops and pat-downs are reasonable enough since they're limited to looking for obvious signs of weapons while the police stop somebody, and in general police aren't allowed to go digging for admissible evidence. The idea that you can search a vehicle on a whim is completely against the constitution (whether or not it happens to be established precedent).
You either have probable cause or you don't. If you have it, then it is a simple matter to obtain a warrant. If you're hunting a guy who plants bombs in trunks then checking trunks for bombs would also be reasonable since there is a compelling need for public safety, but I'd make anything else found in trucks inadmissable unless there was a warrant.
Just think about why the 4th ammendment was actually written, and perhaps the need for it will become more clear. It was written by folks who actually used to be considered terrorists by the powers in charge, who were on a quest to flush them out by any means necessary. That isn't to condone terrorism, but if somebody really is a public threat it won't be hard to get a warrant to search their belongings...
Re:For the love of all that's good... (Score:4, Insightful)
Erm, real lawyers and law professors disagree with you and Al Gore on that point. Try here [volokh.com] and here [powerlineblog.com], for example. I'm not saying either post is right on the money, but these are real fancy-pants lawyers throwing around real F. Ctr. Op. fnord. Cit. (3) legal citations. And when the professionals disagree so heatedly among themselves I'd say the legal issues are indeed unsettled, at least until such time as the Supreme Court weighs in on the issue.
This is hardly surprising: the exact point where the Executive Branch's Article II war-fighting powers trump the Legislature's power to make law has been argued for centuries. Did Lincoln have the authority to free the slaves by decree in the absence of any law whatsoever giving him that power? Could Truman seize steel mills hit by a strike during the Korean War to prevent disastrous steel shortages? Scholars still debate. Let us not even get into the delicate question of the famous War Powers Act, which every President, Democrat or Republican, has claimed to be unconstitutional since the day it passed.
In terms of spying on Americans, however, there must be a warrant. Article 4 of the constitution asserts this.
Nooo, the Fourth Amendment (not Article IV) just says there can be no "unreasonable" searches. That may or may not mean a warrant -- the definition of "unreasonable" is up to the Courts, ultimately the Supreme Court. For example, if a policeman sees you stuffing something that looks like a body in a trash bag or 50 pounds of marijuana into your woodshed, does he need a warrant to order you to unlock the woodshed and let him search it? Nope. In a case like that, the Courts have held that the value to justice of allowing the policeman to exercise his reasonable judgment on the spot, and collect evidence that you might otherwise hide, if given time, outweighs any danger to your civil liberties.
Furthermore, the Courts have generally held that the Executive Branch (that's the President, or his designees, like the NSA) has broad authority to search the effects, persons, and, yes, communications of US citizens when they enter or exit the country. You'll have noticed, I hope, that the Customs and Immigration people don't need a warrant or your permission to search your bags, papers, person or car when you enter or exit the country. They can even stop you within the US to search your bags or car for, say, illegal aliens or drugs, if you're near enough to the border. And the postal service can open up packages sent by you to international destinations, or from international destinations to you, to inspect them. They don't need your permission, a warrant or even a specific reason to do so. (The generic reason of making sure the Customs and Immigration laws are being followed is considered good enough.)
We can think of border control and inspection as something like a sobriety checkpoint. As long as the "borderline" over which, if you step, you get inspected, is clear, and as long as there is some reasonable law-enforcement goal served by the inspection, and as long as the inspection does not overly intrude in your daily life, then the procedure has been held to be Constitutional, even in the absence of probable cause or a warrant.
Modern communication, with the binging of messages back and forth across international borders, has made a bit of a mess of our expectations. Fifty years ago, the government read every international cable or telegram as a matter of course. But people expected that. It was an unusual thing to communicate internationally. Nowadays, and especially with the Internet, we tend to think of international communications as pretty much the same as intranational communications. But they're not. We expect the same privacy and legal rights as when we talk to our neighbors. But we shouldn'
Re:Excuse me? (Score:3, Insightful)
I don't know about you, but I don't live in North Korea, Iran, Saudi Arabia or China, and I doubt you do either. If you did, you'd probably not be allowed to post things like that.
Re:It's about time EFF got back into the news! (Score:4, Insightful)
Unfortunately, suing the government is difficult. It's likely the people suing would be required to show that they have been directly harmed. Since the government won't release any information about who was monitored, it's impossible to prove you have grounds to sue.
The standard would likely be lower for suing AT&T, which could be as simple as breach of a privacy contract. I'm sure AT&T has many privacy agreements with its customers that say that they will not release private information to government agencies without a warrant. Moreover, during the discovery phase, some information about who was monitored might become available at which point suits against the government could proceed.
Then again I'm just a simple country astronomer. I didn't even read TFA.
Re:I'd like to add... (Score:2, Insightful)
Re:5 rejected out of 20,000 requests (Score:2, Insightful)
Re:What ever happened to ... (Score:2, Insightful)
They don't care if any of this stuff is admissible. (As others have noted, it is believed that this fishing expedition stuff is to find people to be interested in, for whom FISA warrants are then obtained so that evidence becomes admissible in court.)
Re:It's about time EFF got back into the news! (Score:4, Insightful)
Re:Yes! (Score:5, Insightful)
Re:It's about time EFF got back into the news! (Score:3, Insightful)
EFF has a long road ahead of it... it needs to get RIAA with telecom companies. One or two actions will raise eyebrows, but when the fear of a lawsuit tingles CEOs backsides whenever the government whispers in their ear, those whispers are going to start falling on deaf ears. So it's going to take many more lawsuits (and of course some wins). But once that investment is made... CEOs are far more powerfull than the President and David Addington can ever dream of.
Re:For the love of all that's good... (Score:4, Insightful)
Thanks for a really thoughtful reply. It's nice to see actual dialogue on this issue. 8^)
I'm afraid I'm going to have to cherry-pick a few small points, because it's nearly 04:00 where I am, and I will never be able to do justice to your entire message. I don't necessarily agree with every assertion you make, but I respect the time and effort and thought that went into it.
With regards to legal controversy, I've read across a number of online resources, but I'm in Eastern Europe at the moment, so I haven't had the chance to do more than that. While there are individuals (Yoo, the ex-Justice dept. staffer and legal scholar, for example) who strongly defend the president's power to perform warrant-less surveillance on US citizens, it appears to me that the majority strongly disagree. A number of conservative Justice dept. officials are reputed to have lost or left their jobs because of their refusal to support the White House warrant-less surveillance programme. There's a good article on the Newsweek website. It's well researched and well written, presenting the reasoning and rationale in a pretty straightforward manner.
"Nooo, the Fourth Amendment (not Article IV) just says there can be no "unreasonable" searches. That may or may not mean a warrant -- the definition of "unreasonable" is up to the Courts, ultimately the Supreme Court."
The 'unreasonable' element puts limits on the kinds of search, but the 'probable cause' part makes it clear that searches and seizures require warrants that have stood up to the appropriate level of scrutiny, in this case the FISA court.
That's fairly unambiguous.
Again, people will argue that the president needs the ability to conduct warrantless surveillance of US citizens in order to protect the nation. While I don't personally agree with that, I can see why people would argue for it. What I consider indisputable, though, is that he would require congressional approval to do so, and that would certainly entail legislation. Some say the law covering FISA already provides this capability. I'm prone to agree with them.
"Congress has no power to grant or deny war powers to the President, because he is granted those powers under Article II of the Constitution, and the Constitution supercedes all laws passed by Congress."
I think you need to re-examine that assertion. Only Congress has the right to declare war. Once that's done, the president has constitutionally granted latitude to carry out the conflict as he sees fit, without requiring further advice or consent. But Congress has not declared war; they have granted him powers as defined within the legislation authorising the use of force against Iraq. The fact that Congress explicitly disallowed the prosecution of these powers on US soil is, in this case, integral. They did not grant him the power to operate unsupervised on US soil.
Re:Of course it's Slashdot... (Score:3, Insightful)
Article II (Score:3, Insightful)
Sorry for the long quote, but here's Article II (from The U.S. Constitution Online [usconstitution.net]). I don't see this supposed right anywhere in there.
Re:IANAL, but (Score:1, Insightful)
Re:I will never give money to the EFF again. (Score:5, Insightful)
Yes I can agree with that. Imagine the nerve of someone sworn to uphold the constitution thinking he can simply order a government agency to violate constitutional rights without consequence.
The government has always had the authority to monitor international communications without a warrant.
I will accept that statement only after you provide a citation to a legal theroy that propounds it. In contravention of your point, I cite the FISA of 1978, the FISA court which has, in it's ENTIRE HISTORY, declined only four requests for a wiretap.
Bush didn't make up that power.
I suggest he did, out of whole cloth. The solicitor general (Alberto Gonzales) has been quoted on CNN saying he and President Bush did not seek specific authorization from Congress on exactly this point because they didn't think they'd get it. So he made a wild power grab and got away with it for many years. Now the lights are starting to come on, and they are scurring away from it like cockroaches in the kitchen.
Just let me point out, if you substitute "Clinton" for "Bush", I suggest you'd be barking at the moon for not just removal from office, but criminal prosecution as well. I tell you true, if Clinton tried pulling something like this, I'd have screamed for his head.
It just happened that in the past those communications were generally broadcast radio transmisisons and not internet or telephone communications.
Ahhh. Therein lies the rub. It was still illegal even then. Look up the law on interception of communications absent a warrent. Now, "they" (in this case, the NSA, DIA, MI6, and ANZAC) have to touch what they want to snoop on. In the past, they could just stick a wire in the air and break the law. Now they have to have cooperation. Regardless, it was still illegal since 1932.
The power hasn't changed, only the technology.
I argue that they never had the legal power. Tech has changed, that is self evident. That they have the absolute power is obvious. They can kill you if you refuse to cooperate. And likely bill your family for the bullet too. Doesn't make it legal.
Also, the communications in question are phone calls originating overseas
Incorrect. NSA is tapped directly into the Datona database. This includes ALL calls made through the PTSN, internal to the US, external, either initiated from inside or outside the US, and most Internet connections. They have SUGGESTED they were interested in only overseas initiated calls, however, I question if that is the case, and if it is, if they have the legal authority to do so even then.
by known Al Qaeda members.
Again, this is incorrect information. These are not "known" members of a terrorist orgisanation. These are SUSPECTS, some of them citizens (although I strongly believe that we should NOT be making distinctions about what civil liberties (aside from voting and holding office) should be granted to a non-citizen verus a citizen while within US jurisdiction. We then in turn expose ourselves to having to prove at every street corner that we are citizens. Think a Nazi SS Trooper shouting "PAPERS!" at every bus stop, airport (oops, too late!), train station, and highway blockade. And God help you if you don't have official permission to go to another city.)
If the NSA wasn't monitoring those conversations, it would be gross negligance and they would be ignoring their duty to the country.
Part of their duty is to make sure they aren't breaking the law themselves while trying to get the "bad guys". That's how you tell a good guy from a bad guy. The good guys always obey the law. The bad guys don't. It is an important distinction to remember. Or else you'll just have to accept someone is a "good guy" because they tell you to. And if they don't, they take you to jail.
I would probably agree that there should be oversight on this program to make sure there are no abuses,
T
Re:Oh, PLEASE!! Get A Grip People!!! (Score:3, Insightful)
Re:Yes! (Score:3, Insightful)
Re:IANAL, but (Score:3, Insightful)
But I think that on the whole, the EFF has done a good job in determining where to bring challenges.
Who's assuming? (Score:3, Insightful)
Believe it or not, though, trusting the New York Times, even after a couple of unfortunate incidents, is still pretty good practice. What's scarier is people like you, who can't seem to separate the concepts of somebody explaining facts to you and somebody telling you what to think. Don't worry, dude
Repeat after me: Being informed is good.
Re:For the love of all that's good... (Score:4, Insightful)
First, I believe the Supreme Court has held that all sorts of searches can be considered "reasonable" under the Fourth Amendment without involving the issuance of a warrant. The text you quote certainly establishes two things: that searches may not be unreasonable, and that warrants may not be issued without probable cause and a narrow specification of what precisely is to be searched. But this text does not explicitly connect the two, and state clearly that a search is a priori unreasonable if it is not authorized by a warrant.
What exactly the text of the Fourth Amendment means, what the precise connection between "reasonable" and the presence of a warrant is, is therefore up to the Supreme Court to say. (Congress, of course, has no say in the matter.) Certainly what the Supreme Court has in fact held has been a welter of horribly complex reasoning that has kept fleets of Constitutional lawyers busy from the founding of the Republic to the present day. Myself, I do wish Madison had been a tad more explicit. But we have what we have.
One might argue -- as perhaps you are here -- that even if a search is not in fact authorized by a Court warrant, the Fourth Amendment requires that it be authorizable in principle by a warrant. That is, the same legal standards must be met. But I think the Supreme Court has rejected this reasoning. I believe they have held that different standards apply in different circumstances. For example, what is "reasonable" when a policeman decides the issue in a split-second can be different than what is "reasonable" when a learned judge with days to ponder decides the issue. And (more to the point) what is reasonable when the nation is in danger of armed sneak attack is not necessarily the same as what is reasonable when it is not.
I believe there are also all kinds of complex issues about what constitutes a "search" that depend on when one has a "reasonable expectation of privacy." An example is that, while it is blatantly illegal for the police to tap your home phone without a Court order, it is perfectly legal for a plainclothesman to listen to your conversation (and take notes that can be used against you in Court) if you and he are sitting in a cafe and you're jabbering on your cell phone loud enough for him to overhear. The circumstances mean he doesn't need a warrant or "probable cause" to listen in.
So, what kind of "reasonable expectation of privacy" do you have when talking internationally, versus domestically? When talking over a cell phone (on which anyone with a radio receiver can eavesdrop) versus on a landline? When talking to friends and family, or your lawyer or your doctor -- or to people you know or should know are enemies of the United States? These are complex questions, and reasonable men may certainly differ on the exact answers. But the exact answers matter, to determine how the Fourth Amendment applies.
What I consider indisputable, though, is that he would require congressional approval to do so.
Well, other people -- indeed, all Presidents -- dispute this. In the context of fighting the foreign enemies of the United States, the President draws his power directly from the Constitution. That's why there didn't need to be a law authorizing the CIA to spy on the Soviets during the Cold War, and that's why Eisenhower, for better or worse, was able to secretly order -- without Congressional knowledge or approval -- spy planes to fly over Moscow and photograph Chairman Brezhnev taking a leak behind Lenin's Tomb, if they could.
If the President were ordering the NSA to wiretap conversations between Americans and, say, German industrialists, for the purpose of industrial espionage, surely that would not fall under Article II. But it's difficult to see why, for example, FDR shoul
Re:There you go, case closed. (Score:3, Insightful)
Sorry, the way the Constitution and the U.S. Code are written there is supposed to be judicial and congressional oversight of wiretapping. Since the President, in violation of the Constitution and the U.S. Code, refuses to allow oversight, we can presume he is violating the law.
The presumption of innocence belongs to the people, not the government which (in theory) works for us. When the government witholds information from the people, we can presume it is working against our interests.
The concept of liberty is just lost on some people.
Re:Getting ahead of themselves (Score:3, Insightful)
This is very confusing to those of us who lived through the cold war. Back then we were told we had to live with the risk of being incinerated in a nuclear attack in order to preserve our constitutional rights. Now we are being told that we have to live with the curtailment of our constitutional rights in order to save ourselves from being incinerated in a terrorist attack.
Re:American Values (Score:4, Insightful)
Some say this was one of bin Laden's objectives. He would bring down western society by making it tear itself apart chasing shadows.
Re:Getting ahead of themselves (Score:3, Insightful)
No matter how manytime Bush calls it a war, it is not. A declaration of war has significant legal ramifications, exactly to give the executive the powers needed to handle the special situations of warfare.
And the broad powers granted in those circumstances is exactly why the president isn't allowed to declare war by himself.
Re:IANAL, but (Score:2, Insightful)
Unless you're part of the Bush administration... I guess you can't break the law when you're the one picking the judges.
Re:I'm out too (Score:5, Insightful)
And that's the huge gaping hole in your argument. How do you know they are calling known or suspected terorists, when your government refuses to let anybody know who they are tapping on what basis but just ask you to trust them?
Do I really have to point out to you that the US has at least once had a president who had no qualms about wiretapping his political enemies for political gain (Nixon, in case you completely lack history knowledge)? What makes you think you can trust the current and all future governments not to do the same.
Keep in mind that regardless whether you think Bush is an asswipe or a true American hero, he will not be president forever, and any expansion of presidential powers will be there to exploit for future presidents too unless something is done to stop it.
The scary part here is not that Bush wants to wiretap, but that he so obviously KNOW that these wiretaps are wide reaching, considering that he's decided it's worthwhile to avoid asking for permission from a court that hardly ever says no to any request, and where the requests can be filed after the fact.
It takes an extreme naivety to think even for a second that nothing is fishy there.
If these are truly people calling suspected terrorists, then warrants for these wiretaps would be granted with no problems.
So why again, is it necessary to bypass the oversight measures put in place by congress?
Re:already seen it (Score:3, Insightful)
What nonsense. Who are these "pacifists" that support Saddam or Al Qaeda? Opposing America's invasion of Iraq is not the same as supporting the enemy. That's just propaganda.
Re:IANAL, but (Score:1, Insightful)
I REALLY wish people would stop making statements of "fact" that the wiretaps were illegal. They most likely weren't to begin with and there is NO evidence that they were at all. Until this point is settled, I would like to establish a moratorium on the words "illegal NSA wiretaps" but unfortunately I can't. People seem to be forgetting that the man on the phone in the USA was a known AlQueda associate who was talking to another known associate in the middle east. Where's the problem? It's LEGAL for the NSA to wiretap that conversation! The NSA deals with people outside the USA making contact with others outsite the USA AND those outside contacting people inside our country.
Let's get the hearings started immediately so those who keep wrongly saying this was illegal can start preparing their crow.
Re:Yes! (Score:2, Insightful)
"It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the authors of the CRS report wrote. The administration's legal justification "does not seem to be
Whaa? Rush didn't talk about this? Oh, wait, wait, don't tell me, you listen to Neal Boortz. He's the intellectual idiot's radio man.
Oh, I get it! (Score:3, Insightful)
So, logically, if you put a lock on your front door, you're only making life difficult for the burglars. I mean the professionals will get in whatever you do, so all your lock does is force them to go out and buy expensive new equipment. Of course, they then have to pay for that equipment, which they do by burgling more houses, to the detriment of us all.
Clearly the only patriotic thing to do is to take all your possessions and pile them in the middle of the street, so as not to overly inconvenience the working criminal.
I know! Why don't you run a pilot scheme? You can report back in a few weeks and tell us how much crime dropped in your area.