tagged w/ warrantless wiretapping
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The Obama administration is appealing the first and likely only lawsuit resulting in a ruling against the secret National Security Agency warrantless surveillance program adopted in the wake of the 2001 terror attacks.The Obama administration is appealing the first and likely only lawsuit resulting in a... more
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Talk about money going down the drain... make sure you check out the New York Times link included in this article.
Article:
"An Obama administration taskforce is seeking to overhaul a federal law requiring telephone and broadband carriers to ensure their networks can be wiretapped, The New York Times reported Tuesday (link).
Law enforcement and counterterrorism officials from the Justice and Commerce Departments, the FBI and other federal agencies told the Times tougher legislation was necessary because some telecommunications firms have launched new services and system upgrades that impede surveillance.
As part of their draft legislation to expand and strengthen the 1994 law, the officials want more legal incentives and penalties to push AT&T, Comcast, Verizon and other carriers to make sure any changes to their networks will not disrupt efforts to conduct wiretaps, the report added.
According to the Times, President Barack Obama's administration intends to submit a package of draft legislation to Congress next year. Citing officials familiar with the deliberations, it noted there was still no agreement over the details.
Officials cited two previously undisclosed episodes during which major carriers struggled for weeks or months when they tried to comply with court-approved wiretap orders in criminal or terrorism investigations.
Story continues below...
The newspaper said the FBI spends about 20 million dollars a year on efforts to help companies fix such problems.
Last month, the Times reported that the White House is also pushing to require all online services that enable communications -- such as Gmail, Facebook, BlackBerry and Skype -- to be technically capable of complying with a wiretap order, bringing them under the law's mandate for the first time.
Among proposals floated by the Obama administration, one would increase the likelihood that a firm would pay a fine for wiretapping lapses, while another would create incentives for companies to show new systems to the FBI before implementing them, the Times said."
http://www.rawstory.com/rs/2010/10/ease-telecom-wiretapping-report/Talk about money going down the drain... make sure you check out the New York Times... more
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A former NSA executive who is fighting government charges of leaking classified information was part of a group that pursued several sanctioned paths to report concerns about an agency spy program, but was repeatedly frustrated by the government’s inaction, according to a report Wednesday.
Thomas Drake, now reduced to working at a Washington, D.C.-area Apple store while awaiting his trial, first notified his superiors at the National Security Agency, then looked to Congress to address his concerns, and finally worked with a group that went to the Defense Department’s inspector general, according to The Washington Post. When all of these avenues failed to net results, he took his information to a reporter at The Baltimore Sun.
Drake now faces a maximum sentence of 35 years in prison if convicted of mishandling classified information and obstructing justice.
Drake’s information involved a data-mining program called ThinThread that, after the Sept. 11 attacks, was going to be replaced by a more expensive, less efficient and less privacy-friendly program called Trailblazer. When he expressed concerns that the new program would ignore constitutional safeguards around wiretapping, he was reportedly rebuffed by his superiors.
“He tried to have his concerns heard and nobody really wanted to listen,” attorney Nina Ginsberg, who is representing a former Capitol Hill staffer but is not representing Drake, told the Post.
Drake began working for the NSA in 1989 as a contractor. His job was to evaluate software programs for the agency. In 2001, on the morning of Sept. 11 to be exact, he began a new job as a senior executive at the NSA overseeing the office of change leadership and communications, the Post says. ThinThread was developed for the NSA in the ’90s to mine massive amounts of digital data collected by the agency and find patterns.
One of the existing program’s key features was a privacy component that anonymized collected data through encryption. The identifying information would only be decrypted if authorities gained sufficient evidence to obtain a warrant. Although the mere collection of domestic data was still illegal without a warrant, Drake apparently approved of the product as long as the anonymization feature was in place.
But after Sept. 11, NSA director Michael Hayden opted instead for the $1.2 billion Trailblazer program, which was believed to have more robust capability to handle larger volumes of data, but which had none of the privacy safeguards present in ThinThread.
Three of Drake’s superiors now say that he never mentioned his concerns about constitutional safeguards to them, but career NSA employees back Drake’s story, according to the paper. They took their concerns to congressional leaders and staffers, including Diane Roark, a Republican staff member of the House Intelligence Committee. Roark contacted Chief Justice William H. Rehnquist, who was responsible for appointing judges to the Foreign Intelligence Surveillance Court — the court that oversees requests for national security surveillance warrants. But Rehnquist apparently was a dead end.
Roark also had no luck with her boss, House Intelligence Chairman Porter Goss (R-Florida). Instead of performing his congressional oversight duty, Goss simply sent her along to NSA chief Hayden, who told her: “We’re proud of what we’re doing and how we’re doing it.”
That’s when Roark and former NSA employees who sided with Drake took their concerns to the Defense Department’s inspector general. They reported that the NSA had shelved ThinThread in favor of a program that cost 10 times as much and was less effective.
An administrative investigation was spawned by their complaint, as well as two criminal fraud investigations. The inspector general’s report was completed in December 2004 but was classified and led to no action.
It was Roark who suggested Drake contact a reporter at that point. A month later, in December 2005, The New York Times reported its groundbreaking story disclosing that the NSA had been spying on Americans, based on information from anonymous sources. Drake decided he should come forward with his information as well.
He contacted Siobhan Gorman at The Baltimore Sun, using Hushmail, an encrypted e-mail service. They communicated for a year without Drake identifying himself, before they finally met in person.
Drake allegedly provided Gorman with scans of classified documents, from which she wrote an article questioning the NSA’s replacement of ThinThread with Trailblazer and its abandonment of privacy safeguards. Drake later told New Yorker investigative reporter Seymour Hersh that the story was actually much more significant than what The Baltimore Sun reported.
Drake’s attorney, a public defender, says the government’s allegations against his client are factually wrong and miss important principles suggested by the case.
“Throughout, Tom Drake has tried as best he could to do the right thing in service of his country,” Jim Wyda told the Post. “His motives in this important matter are completely pure.”A former NSA executive who is fighting government charges of leaking classified... more
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In a repudiation of the Bush administration's now-defunct terrorist surveillance effort, a federal judge ruled Wednesday that government investigators illegally wiretapped the phone conversations of an Islamic charity and two American lawyers without a search warrant.
U.S. District Court Judge Vaughn Walker said the plaintiffs provided enough evidence to show "they were subjected to warrantless electronic surveillance" by the National Security Agency.
The judge's 45-page ruling focused narrowly on the case involving the Al-Haramain Islamic Foundation, touching vaguely on the larger question of the program's legality.
Nonetheless, Al-Haramain lawyer Jon Eisenberg said the ruling had larger implications.
"By virtue of finding what the Bush administration did to our clients was illegal, he found that the Terrorist Surveillance Program was unlawful," Eisenberg said.
President Bush authorized the surveillance program shortly after 9/11, allowing NSA officials to bypass the courts and intercept electronic communications believed connected to al-Qaida.
Generally, government investigators are required to obtain search warrants signed by judges to eavesdrop on domestic phone calls, e-mail traffic and other electronic communications.
At issue Wednesday was a 2006 lawsuit filed by the Ashland, Ore., branch of the Saudi-based foundation and two American lawyers Wendell Belew and Asim Ghafoor.
Belew and Ghafoor claimed their 2004 phone conversations with foundation official Soliman al-Buthi were wiretapped without warrants soon after the Treasury Department had declared the Oregon branch a supporter of terrorism. They argued that wiretaps installed without a judge's authorization are illegal.
It was the last active case pending before a trial judge challenging the wiretapping program that ended in 2007.
"The ruling ends the case, but without the fireworks everyone expected," George Washington University law professor Orin Kerr said. "It ended with a whimper."
The plaintiffs were seeking $1 million each, plus attorney fees in the case. Walker ordered more legal arguments before deciding on possible damages.
The ruling came after U.S. Attorney General Eric Holder said the lawsuit threatened to expose ongoing intelligence work and must be thrown out.
In making the argument, the Obama administration agreed with the Bush administration's position on the case but insisted it came to the decision differently.
Holder's effort to stop the lawsuit marked the first time the administration has tried to invoke the state secrets privilege. Under the strategy, the government can have a lawsuit dismissed if hearing the case would jeopardize national security.
Holder said Judge Walker had been given a classified description of why the case must be dismissed so the court could "conduct its own independent assessment of our claim."
That was a departure from the Bush administration, which resisted providing specifics to judges handling such cases about what the national security concerns were.
Holder previously said the administration would respect the outcome of Walker's review.
Eisenberg called on the Obama administration to accept Wednesday's ruling and forgo any appeals.
"We are reviewing it," Department of Justice spokeswoman Tracy Schmaler said.
In June, Judge Walker tossed out more than three dozen lawsuits against the nation's telecommunications companies for allegedly taking part in the program.
Congress in 2008 agreed on new surveillance rules that included protection from legal liability for telecommunications companies that allegedly helped the U.S. spy on Americans without warrants.
Walker previously upheld the constitutionality of the new surveillance rules. His ruling is being appealed.
Anthony Coppolino, the U.S. Department of Justice lawyer who has been in charge of the Islamic Foundation case under both administrations, has never addressed the legality of the wiretap program.
Coppolino has always argued the case should be tossed out in the name of national security and said the government risked exposing ongoing intelligence work if the lawsuit were allowed to proceed.
The government argued that its "state secret privilege" trumped the Foreign Intelligence Surveillance Act, known as FISA, which requires investigators to seek wiretap approval from a special court that convenes behind closed doors.
Coppolino refused to even discuss whether such a secret warrant existed, arguing that to confirm or deny would threaten national security.
On Wednesday, the judge said the government was wrong and ruled that it should be assumed investigators lacked a warrant.
"FISA takes precedence over the state secrets privilege in this case," Walker wrote.
The Bush administration invoked the secrets privilege numerous times in lawsuits over various post-9/11 programs.
In another wiretap case targeting the Bush tactics, the Center for Constitutional Rights asked the U.S. Supreme Court Tuesday to order government officials to disclose if officials eavesdropped without warrants on electronic conversations between 23 attorneys and their clients held at Guantanamo.
Lower courts had tossed out that request.In a repudiation of the Bush administration's now-defunct terrorist surveillance... more
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This can't possibly be the official position of the Obama Administration. A Constitutional scholar should know better...
"...Meanwhile, modern cellular communications networks have enabled police to track suspects through back-end APIs, showing real time Global Positioning System (GPS) data on demand and over the Internet. Sprint, the nation's third largest carrier, said recently that it has received over 8 million tracking requests from law enforcement officials. The company employs a team of 110 people to handle law enforcement requests on its roughly 47 million customers.
Sprint spokesman Matt Sullivan noted after the revelations that "every wireless carrier has a team and a system' through which police can access GPS data."
"An individual has no Fourth Amendment-protected privacy interest in business records, such as cell-site usage information, that are kept, maintained and used by a cell phone company," Obama administration attorney Eckenwiler argued in his legal brief."
http://rawstory.com/2010/02/obama-attorneys-argue-warrantless-cell-phone-tracking/This can't possibly be the official position of the Obama Administration. A... more
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A little-noticed letter from Yahoo! to the US Marshals Service offers troubling insight into the surveillance policies of one of the Internet's largest email providers.
In response to a Freedom of Information Act request seeking details of Yahoo's! policies allowing the Justice Department to request wiretaps of its users and the amount they charge US taxpayers per wiretap -- the search engine leviathan declared in a 12-page letter that they couldn't provide information on their approach because their pricing scheme would "shock" customers. The news was first reported by Kim Zetter at Wired.
"It is reasonable to assume from these comments that the [pricing] information, if disclosed, would be used to "shame" Yahoo! and other companies -- and to "shock" their customers," a lawyer for the company writes. "Therefore, release of Yahoo!'s information is reasonably likely to lead to impairment of its reputation for protection of user privacy and security, which is a competitive disadvantage for technology companies."
Yahoo! also argues that because their price sheet for wiretaps was "voluntarily submitted" to the US Marshals Service, it is exempt from the Freedom of Information Act law.
Verizon, meanwhile, says (letter PDF) they can't provide details on how much they charge for wiretaps because it would be "confusing."A little-noticed letter from Yahoo! to the US Marshals Service offers troubling... more
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The Obama administration’s position that the government can force mobile carriers to hand over cellphone tower location information on their customers without a warrant is wrong, two legal scholars say.
"Because CSLI acquisition is hidden, indiscriminate and intrusive, and because it reveals information over a period of time, it should be subject to the highest level of Fourth Amendment oversight (the same procedures used for wiretapping and video surveillance)," the scholars wrote late Friday.
The scholars are Susan Freiwald, of the USF School of Law, and Peter Swire, of Ohio State University.
Their words, published by the American Constitution Society, came a month after the Justice Department made its claim in a little-noticed case that the Fourth Amendment right to be free from unreasonable searches and seizures did not apply.
Most Americans have or will carry a mobile phone in their lifespan, so the outcome could have wide-ranging privacy ramifications. Smartphones, like the iPhone, use cell-tower information to power geo-location applications like Google Maps.
In a case pending before the 3rd U.S. Circuit Court of Appeals, the government maintains it can require federal judges to order mobile phone companies to release historical cell-tower information of a phone number without probable cause — the standard required for a search warrant.
While judges have differed on the issue, the resulting evidence can be used in a criminal prosecution. The case on appeal concerns a Pennsylvania judge who rejected the government’s position in a drug prosecution that the new administration inherited.
Mobile-phone providers keep cell-site information for up to 18 months. Historical cell-site location information includes the tower connected at the beginning of a call and at the end of the call. The government does not claim a warrantless right to cell-site information for future calls, only for calls already dialed.
"Cellular providers could, if they wanted, keep track of your cell phone’s location every seven seconds," the scholars wrote, "because your phone ‘registers’ that often with the nearest tower."The Obama administration’s position that the government can force mobile... more
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asherp
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added this
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2 years ago
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The administration has asked lawmakers to extend powers allowing the government to collect a wide range of financial and personal records, as well as monitor suspects with roving wiretaps. The methods were authorized under the USA PATRIOT Act and are set to expire at year’s end. The call for renewing the PATRIOT Act provisions comes as Democratic lawmakers and civil liberties groups want to revisit its broader powers. Democratic Senator Russ Feingold of Wisconsin has proposed a new bill that would overhaul the PATRIOT Act and other surveillance laws to include more privacy safeguardsThe administration has asked lawmakers to extend powers allowing the government to... more
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Police Blotter is a regular CNET News report on the intersection of technology and the law.
What: Feds want to eavesdrop on touch tones pressed during phone calls without obtaining a court-authorized wiretap order first.
When: U.S. Magistrate Judge James Orenstein in the Eastern District of New York rules on December 16, 2008.
Outcome: Surveillance request rejected.
What happened, according to court records and other documents:
Just about everyone knows that the FBI must obtain a formal wiretap order from a judge to listen in on your phone calls legally. But the U.S. Department of Justice believes that police don't need one if they want to eavesdrop on what touch tones you press during the call.
Those touch tones can be innocuous ("press 0 for an operator"). Or they can include personal information including bank account numbers, passwords, prescription identification numbers, Social Security numbers, credit card numbers, and so on--all of which most of us would reasonably view as private and confidential.
That brings us to New York state, where federal prosecutors have been arguing that no wiretap order is necessary. They insist that touch tones cannot be "content," a term of art that triggers legal protections under the Fourth Amendment.Police Blotter is a regular CNET News report on the intersection of technology and the... more
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A judge has ordered the Justice Department to produce White House memos that provide the legal basis for the Bush administration's post-Sept. 11 warrantless wiretapping program.
A judge has ordered the Justice Department to produce White House memos that provide... more
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