NSA Abused Wiretap Rights: Intercepted, Shared Private Calls Of Americans

from the funny-how-that-works dept

Now that Congress has totally capitulated and allowed the administration's warrantless wiretapping program to go on without question, it should surprise no one that leaks are coming out highlighting how the program is regularly abused to spy on everyday Americans who are calling North America from the Middle East. In fact, two separate "intercept operators" have apparently come forward separately, and talked about listening in on perfectly innocent calls between two Americans -- exactly the scenario that the government insisted never happened. Specifically, General Hayden stated that conversations between Americans were not being intercepted: "It's not for the heck of it. We are narrowly focused and drilled on protecting the nation against al Qaeda and those organizations who are affiliated with it."

However, according to the operators, it appears to be very much for the heck of it. Not only were calls between Americans listened to and recorded on a regular basis, the "good parts" (i.e., phone sex) were sent around to other operators to listen to as well. One of the operators said that on a regular basis messages would be sent around with messages like: "Hey, check this out. There's good phone sex or there's some pillow talk, pull up this call, it's really funny, go check it out." Of course, this shouldn't surprise anyone. When you give someone the power to spy on calls with absolutely no oversight, it's going to get abused. It's just that simple.

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How Do You Prove You Were Warrantlessly Wiretapped If It's A Secret?

from the the-amazing-legal-obstacle-course dept

As we continue to debate the question of telco immunity, there's a separate, but related legal issue that's worth paying attention to as well: the question of who can actually sue about having their rights abused by supposedly warrantless wiretaps. Earlier this year, the Supreme Court ruled that various groups such as the ACLU couldn't sue because they had no "standing" (i.e., proof that they were impacted by the warrantless wiretaps). It's a bit convoluted when you think about it: there's no way to determine if illegal spying took place because the only way you could get the evidence would be to first prove you have the evidence that it took place. But if you think that's twisted, it gets even more bizarre.

It turns out that in one related case, the government accidentally sent over proof that it used a warrantless wiretap to monitor a certain group. Thus, that group can actually show it has standing... sorta. One of the lawyers involved in pushing just such a lawsuit forward has a stunning tale explaining the amazing obstacle course he had to traverse to actually have this lawsuit move forward (and it's not over yet). Basically, the government claims the information in the document is still secret, even though it gave it out, and some of the details have been reported on the news (in business contexts once info is out, it's no longer secret -- apparently, not so with the government).

Where things get really bizarre, though, is in how the lawyers on this case can actually deal with this evidence it has. Basically, they had to destroy all copies they had of the evidence in question, and can sort of obliquely refer to it from memory in secret filings that are written under the watchful eye of the Justice Department, officially to make sure that the "classified info" remains classified. Even better, the lawyers had to respond to a secret filing from the Justice Department that the lawyers weren't even allowed to see. The case is far from over -- as the latest ruling basically set up another ridiculous tightrope for the lawyers to walk -- basically saying that they can't use the evidence in the document because it would prove their case. Instead, they first have to prove it without the document, and then if they do that, they can use the document (after it's basically no longer necessary). And there's all sorts of side amusements, such as reading about how the Justice Department tries to destroy the lawyer's computer to make sure there's no secret documents on there (it's like a scene from a bad comedy, where they discover that simply banging a hard drive on a table isn't an effective way to damage it). And, there's also the bit where the Justice Department refuses to let one lawyer take part in the drafting of the secret filing because they just don't like him.

This has gone way beyond protecting state secrets or providing security and protection to American Citizens. As you read the details, it's quite clear this is about doing whatever possible to hide what was almost certainly an illegal move by the administration. If telecom immunity is granted, then this particular case, Al Haramain v. Bush, would basically be the only case left that looks into the legality of warrantless wiretapping. Say what you want about the importance of protecting US citizens, the American Constitution set up a system of checks and balances for a very good reason: so no single group has enough power to make the rules itself. This whole thing shows how the executive branch is trying to guarantee there are no checks or balances on some of its activities. That's a very scary precedent and on that anyone -- no matter what your political persuasion -- should be against.

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Domestic Wiretapping Programs Should Not Be Secret

from the oversight-needed dept

A whistle-blower reports that an unnamed wireless carrier has provided a government facility in Quantico, VA, with unfiltered access to its core network. The whistle-blower says this gives the government direct access to private information such as text messaging and call records. He doesn't name either the company or the government agency involved. But a 2006 lawsuit featuring similar allegations named Verizon Wireless as the culprit. And Threat Level says that Quantico, VA, just happens to be "the center of the FBI's electronic surveillance operations." When asked about this, a Verizon Wireless spokesman wrote "What you're talking about sounds as if it would be classified and involving national security, so I wouldn't be able to find out the facts."

The idea that ordinary domestic surveillance activities are a matter of national security, and therefore immune from public scrutiny, is both wrong-headed and malicious. I guess the idea is that we don't want to tip off the terrorists about our surveillance programs. And obviously, information about specific targets needs to be kept secret. But the terrorists have to already know that most communications channels can be intercepted. Moreover, it's just not reasonable to expect that the broad details of our government's domestic surveillance activities will remain a secret indefinitely. Despite the secrecy, we're gradually learning about the scope of these programs. If terrorists didn't know their calls were being tapped five years ago, they certainly do now.

The problem is that because details about these programs (and information about abuses) dribble out slowly over several years, Congress never has the opportunity to conduct meaningful oversight of them. For example, this week we also found out that abuse of national security letters, which was previously only reported to have occurred from 2003 to 2005, continued into 2006. Of course, the administration says they've fixed the problem and that no more NSL abuses will occur. But that's what they always say when privacy abuses are uncovered, yet new examples keep popping up. The only way the abuses will stop is if Congress rejects the idea that domestic surveillance is immune from judicial and Congressional surveillance. The Bush administration needs to disclose the exact scope of its domestic surveillance activities so that Congress can have an open, public debate about the proper scope of government spying powers.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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Supreme Court Won't Review Case Saying ACLU Has No Right To Sue Over Wiretaps

from the we-could-tell-you-has-standing,-but-we'd-have-to-kill-you dept

In a rather unfortunate ruling, the Supreme Court has decided to let an appeals court ruling stand, saying that the ACLU has no standing to bring a lawsuit over domestic wiretapping activities of the federal government. There's a bit of a catch-22 here. Neither the appeals court nor the Supremes are saying that the wiretapping is illegal. They're just saying that only those actually impacted by the wiretapping can bring suit -- which is tricky since the whole point is that there's no way for those being tapped to actually know they're being tapped. This would appear to be a rather ominous omission in the "checks and balances" our government is supposed to have.

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FBI Not Good At Paying Wiretap Bills

from the a-near-total-mess dept

While the FBI has regularly decided that court orders aren't necessary for wiretaps, it is a bit surprising to find out that it seems to feel the same way about paying the bills for wiretaps. Newly released info show that the FBI often failed to pay its wiretapping bills, leading one telco to cut off the FBI's wiretaps until it finally paid up. Given how screwed up the FBI's computer systems are, perhaps it's not surprising that they don't have an acceptable accounts payable system either.

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