Could Wiretap Ruling Threaten Telcos That Cooperated?

from the hindsight-is-20/20 dept

A federal judge yesterday ruled that the government’s warrantless wiretapping program was unconstitutional, a decision that could potentially open up telecom companies that gave into to the NSA to legal liability. The Electronic Frontier Foundation has sued AT&T, alleging it gave the NSA an open door to its data, a lawsuit the company and the government have been working hard to make disappear. BellSouth and Verizon have also been sued, with a lawyer from one of the groups suing says that now that a judge has ruled the program illegal, their case just got a lot easier. Of course, the decision is being appealed, so it’s too early for anything to be certain — though Qwest is still smiling after its decision to not cooperate with the program.

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Anonymous Coward says:

Interesting article in todays Journal

Our Bitter Politics

May Drop the Gift

Of a Foiled Plot

August 18, 2006; Page A14

New York City on Wednesday released more audiotapes from September 11, the day whose realities won’t go away no matter how corrosive and divided our national politics become.

What are the realities of 9/11? Oliver Stone’s movie, “World Trade Center,” released a few weeks ago, conveys the horror, valor and loss that day. That is one reality.

The more enduring reality is the one manifest last week when British authorities stopped a plot to destroy perhaps 10 passenger planes over the Atlantic Ocean: Five years after September 11, radical Islam remains an ideology whose active intention is to annihilate civilians around the world on a massive scale, and to do so repeatedly.

On Sunday, Homeland Security Secretary Michael Chertoff put before us the reality that should, but doesn’t, transcend all the others now. “We’ve got to have a legal system that lets us . . . prevent things from happening rather than . . . reacting after the fact.” But we don’t.

Congress has before it two chances to begin the task of shaping a legal system appropriate to the threat: the Specter bill to revise the Foreign Intelligence Surveillance Act (FISA), and its responsibility after the Supreme Court’s Hamdan decision to write rules and procedures for military commissions. Given the political climate, it’s far from certain that Congress will get this right.

Over the past year the Democrats have built a political case that President Bush’s conduct of the war on terror is trampling civil liberties and the rule of law. There is a list for the Bush assault on “our values”: the NSA’s warrantless wiretaps, Guantanamo, phone-call datamining and of course his Supreme Court nominations.

Whatever the merits of all this, Congress’s Democrats are publicly committed to making this version of the Bush civil-liberties record a voting issue for their party in November and beyond. So presumably they will remain deaf to Secretary Chertoff’s plea for a legal system tailored to fight Islamic terror, at least until after 2008.

A fair summary of the party’s position on civil liberties just now may be found in Sen. Patrick Leahy’s remarks after Mr. Bush nominated Samuel Alito to the Supreme Court. “This is a nomination,” Sen. Leahy said, “that threatens the fundamental rights and liberties of all Americans now and for generations to come. This president is in the midst of a radical realignment of the powers of the government and its intrusiveness into the private lives of Americans. . . . I am concerned that if confirmed this nominee will further erode the checks and balances that have protected our constitutional rights for more than 200 years.”

So a question: Which set of civil liberties do the Democrats have in mind — those that existed in 1791? In 1896? 1942? 1965? 1976? Or now? British Prime Minister Tony Blair put this question bluntly in a speech in California last month: “The threat of global terrorism bent on mass slaughter means traditional civil liberty arguments are not so much wrong, as just made for another age.” Which age does Sen. Leahy want to live in?

The Fourth Amendment — affecting the status of warrants, probable cause and surveillance — is an excellent proxy for how we should try to think about shaping a set of laws and legal procedures appropriate to our times.

In a compelling post-9/11 article that every member of Congress involved in this effort should read, “Local Policing After the Terror,” Harvard constitutional scholar William J. Stuntz argued in the June 2002 Yale Law Review that an analysis of the Fourth Amendment the past 40 years makes clear that courts have tailored criminal-procedure rules to fit the threat at the time, tightening or relaxing criminal procedures in line with a fall or rise in crime.

After the low-crime ’50s, it imposed the exclusionary rule on state courts. In very high-crime 1968, the Warren Court, in Terry v. Ohio, softened the probable cause standard for police street frisks to reasonable suspicion. For 20 years after 1970, the courts enacted various exceptions to the warrant requirement, i.e., allowed warrantless searches.

Here is Justice Sandra Day O’Connor in oral remarks during the stop-and-search Arvizu case argued on Nov. 27, 2001: “We live in perhaps a more dangerous age today than we did when this event took place . . . The Ninth Circuit opinion seemed to be a little more rigid than . . . common sense would dictate today.”

Just over a week ago, the Second Circuit Court upheld a district court ruling in favor of New York City’s random subway searches, concluding that the program was a “special need” and “that need is weighty.”

The Senate doesn’t think so. The Senate is barely able to have a conversation about any of this. At the Judiciary Committee’s hearing late last month to discuss Sen. Arlen Specter’s bill to revise FISA, Sen. Ted Kennedy submitted that the Bush program wants to override “the core of our democracy” and “we should not yield to that arrogant request.” The day before that hearing New York Rep. Jerry Nadler called again for a special counsel to investigate the warrantless wiretap program.

Criminologists will tell you that the reason street crime is down in the U.S. is because of proactive policing methods such as were instituted in New York by Rudy Giuliani and William Bratton. A reactive police force by definition lets crime happen and investigates afterward. Our bitter, give-no-quarter politics is going to leave us with a reactive, uncertain national security apparatus.

Even allowing for election needs, why is it not possible for the congressional Democratic Party and its Amen corner in the punditocracy and blogosphere to overcome their George Bush phobia here? They should allow the creation of a civil-liberties regime that will genuinely (not hopefully) reduce our exposure to the risks now being rolled up by the surveillance and arrests in London.

The foiling of the plot in Britain was a kind of public-policy miracle, a rare chance to rethink. The U.S. could have spent the past week with 4,000 funerals. We would have had calls for measures so stringent and draconian they would make the Bush program look like pattycake. We have none of that. But unless our politics changes, we will.

Beefcake says:

Re: Interesting article in todays Journal

Which set of liberties do the Democrats have in mind? The American ones. Probably the most dangerous point in this country’s history was the war we fought with England in order to establish these liberties in the first place. They weren’t on the table in 1776, they shouldn’t be on the table in 2006. This is hardly the first instance of danger to the U.S. citizenry and it certainly won’t be the last.

The Constitution is the single unifying ideal and identifier for the United States of America. Our very name is taken for granted anymore– we are a collection of states with different ideals and goals, but united under one central collection of laws. When we decide to let men with beards living in caves halfway around the world frighten us into weakening and violating those laws, we are reduced. So get on that airplane, go to that Statue of Liberty, or pet that goat at the zoo in Indiana. That’s how you fight terror.

Frink says:

Re: Interesting article in todays Journal

Not one single formal charge has been made against any of those caught in that alleged plot and the US wire tapping of its citizens had absolutely nothing to do with breaking up the plot. Some of the information the British had was obtained by the torture of a suspect in Palestine. There was never a clear and present danger to any US citizen.

Your post does have many valid points but some of the statements ( especially “The U.S. could have spent the past week with 4,000 funerals.”) are just FUD.

Matt Bennett says:

Yeah, this is going to go through another 2-3 appeals, at least, you know that. It barely worth commenting on, as yet.

It’s worth noting the judge who made the ruling brought up the “this is not a hereditary monarchy” thing. Whether the ruling was good thing or not aside, it’s been my experience that just about everybody who brings heredity regarding Bush was pretty anti-Bush from the start, as these are almost always the same people that think he rigged the electionin some form or another.

Matt Bennett says:

Yeah, this is going to go through another 2-3 appeals, at least, you know that. It barely worth commenting on, as yet.

It’s worth noting the judge who made the ruling brought up the “this is not a hereditary monarchy” thing. Whether the ruling was good thing or not aside, it’s been my experience that just about everybody who brings heredity regarding Bush was pretty anti-Bush from the start, as these are almost always the same people that think he rigged the electionin some form or another.

Bob Jones says:

Damn Democrats

You gotta hate those far-left nut cases.

Bush isn’t running a police state, they are so clouded by their hatred for the opponent – they can’t choose what is good for Americans and ultimatley the whole world.

I can’t care about freedom if I was blown up in a plane.

I’m not going to thankful for the freedom when I’m six feet under, I might be thankful for the security when terrorists are caught and I get safely from airport to airport.

How on earth does the NSA wiretapping affect anybody in their day to day lives? Unless we all talk to international terrorists daily?

Notice the only journalists complaining are from the left-wing hate-America news organizations, typical New York Times – killing Americans and people from everywhere in the world.

Anonymous Coward says:

Re: Damn Democrats

If you die at 30 in an airport because you lived your a free human being despite the risks, you are a hero and a patriot. If you throw out your freedom so you can live to 35 and die because you slip in your bathtub and whack your head (which is statistically far more likely to happen than due to terrorists), that’s just pathetic and sad.

chaz says:


IN Britain THEY GOT WARRENTS! Love A Coward but somtimes lots of smoke. No one gets in trouble for saying no (old corporate saying). TELCOs or others should be responsible for releasing info that they don’t have warrents for reality is bad things are gonna happen and if we make more friends then hostiles we have less chance of being in boxes. I’m sure we are all know Hilter’s Goreing? saying it is easy: make them afarid and then take their rights to protect them.(not a direct quote)

chaz says:

Telco's add

that quote is. “Of course the people don’t want war. But after all, it’s the leaders of the country who determine the policy, and it’s always a simple matter to drag the people along whether it’s a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.”

— Herman Goering at the Nuremberg trials

William says:

the problem with government

The problem with government is once they have a power they almost never relinquish it once the crisis is over. There is already a system in place to allow for wire tapping. They just have to have probable cause and a warrant. The police and the FBI are here to catch these people. But that said my greatest fear is that they will start looking at all digital recordings not just use phone conversations and use the old “Well if you don’t have anything to hide you have nothing to worry about” excuse. I know we can stop terrorist if we all work together, but our own government is a different story. The greatest threats always come form within.

Anonymous Coward says:

BeefCake, don’t think being blown up really serves in the fight against terrorism.

Lets take a look at our history. Seems to me I remember reading about citizens being put in internment camps during WWII, I remember reporters not being able to write about certain things, I remember the govt. being a whole lot more restrictive in times of danger. Somehow when the times changed, the govt. changed.

Rights and their restrictions ebb and flow, the Wall Street Journal article just states that maybe some in the country don’t really care about protecting the US, they are just concerned with getting elected.

A very good point was made that if 4,000 people were actually killed in the foiled plot, what do you thing Congress would be calling for to protect us? Think they would be calling for Bush’s head? Think they would ask the NSA to do more, ask the FBI to do more?

If we place more and more restrictions on intelligence gathering, maybe they will get their wish.

Beef says:

Re: Re:

Great, so if we’re so hell-bent on tweaking things to stay with the times, why is the Second Amendment still around? Gun-crime is far more prevalent in our society than traditional terrorism. You want to protect me, protect me from my neighbor down the street who has a .38 and a bellyful of whiskey before worrying about the far less likely to occur events.

What, don’t want to give up your right to bear arms? That’s my point. You shouldn’t have to.

BTW, WWII internment camps– how do we look back on that just 60 years later. Heck, how did we look back on it 10 years after? With revulsion.

ulle53 says:

we have laws in place to deal with terrorists, we don’t need more when we don’t even enforce the ones on the books already and by giving up our rights and freedom to create a more powerfull government actually puts the american people at even more risk. We risk losing all our rights to a small group of people who think their way is the best way for the rest of us to live. All a person has to do is study history, shelve the emotions for a couple of hours and do some serious reading on what happened in the past when governments became too powerfull all in the name of protecting their “people” But unfortunately most people just want to ignore the past, sure glad I am an old man with only a few years left so I won’t have to suffer to much of the “Bush” legacy

Anonymous Coward says:

Chaz, I posted the 1st and the 13th post, in the first post, all I did was paste the Wall Street Journal article. There are some good points in it. As for old, I hope not.

As for the warrents, who knows what they did over there, I know someone got inside their organization. Wonder if that could happen here, would a court allow a FBI agent to target a Mosque here?

Lets see here, so the NSA, the FBI and other law enforcement agencies can’t search through traffic, but AOL can accidently release search information that identifies people? Google can profit based off of your emails and searches? Other companies can sell your personal information to anyone that is willing to pay?

How does that make sense? Maybe it would be ok for the FBI to just buy the data from Verizon and AT&T, would that make it OK? (Well, actually the govt. does have to pay the provider for access, but thats another story.)

I believe the main issue is that the survelience that the govt. has done has always been done, but that political opponents of GWB has jumped on this to attack him. They don’t care about safety, rights or anything else, they are using this for political gain. I don’t know if I like people playing politics when it comes to safety.

If you ask the American (like a recent Harris Poll did) they don’t mind what the NSA was doing. The majority was in favor of it. Lets not loose perspective of what is actually going on in this country. I know, we are all sheep, but maybe its others that is out of touch with reality.

Beefcake says:

Re: Re:

Today (and for the past several years), the technology exists to improve airport security screening by using a body-imager that would quickly and effectively reveal banned objects on a person, no matter how cleverly concealed within clothing. Of course, this reveals the contours of the human body.

A “majority” of people were outraged by this and it has yet to be deployed. As you point out, the “majority” of people are okay with the NSA program. Logically, many of the same people okay with warrantless wiretapping were not even willing to sacrifice their own modesty (to a lesser extent of a routine physical) to improve the safety of flying. So until you and Bob Jones feel like revealing your true selves to airport screeners, don’t lecture the rest of us about making sacrifices for safety.

chaz says:

Re: Re:

Well, yes they did get warrents in England and really no warrents have been refused since FICAwhatever has been enacted (maybe1%) but the point being it gives the appearence of at least some respect to us THE PEOPLE. Polls show that the people believe at the bottom of the ladder the people respect are the politicaltians (I agree). If we went after the Ben crazyman instead of politics we might have caught him and made less Enemies in this world. I’m a vietnam vet, my father WW vet, son vet and we all love our country and will fight all invaders but the war is about politics as probley most are which cheapens our contributions. No Vets in the GWB camp, no sending their kids to war. I belive we might have disagreements but I would like this to be our choice and not the governments. Gilbert said “There is one difference,” I pointed out. “In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare wars.” but this right was taken away with the Gulf of Tokien Resultion in otherwords YOU didn’t vote for it and what was the hurry? Don’t forget-they came for them and I didn’t say anything and now they come for me. Don’t give up your rights so easily.

Anonymous Coward says:

Not sure about Bob. but I approve of both methods to improve safety. The key issue is that the people ask the govt. to fight terrorism, but then tie their hands behind their back. Same with war, we should have let the military fight the war in Vietnam, but we didn’t. People die when politics take over. You think the people of Camden or New Orleans would mind seeing a cop on every block? These don’t happen because of politics or the fear of a lawsuit from a rights group.

Anonymous Coward says:

Re: Re:

No, the people asked the government to stop terrorism. Fighting is the method the government has chosen– fine, it has it’s place and I’ll certainly grant that it’s a tool to be used with discretion. But the people did not ask for war, simply results.

Regardless, the principles guaranteed by the Constitution are not free. We cannot enjoy them without understanding that from time to time they may not allow us to take certain steps to convict a killer or protect someone from a terrorist. Freedom isn’t free–living free has risks. I’m willing to accept those risks to protect our freedoms. It seems that you are not.

chaz says:

Re: Re: Re:

Maybe we should talk on another forum as we seem off the subject. “Freedom isn’t free–living free has risks. I’m willing to accept those risks to protect our freedoms. It seems that you are not.” I agree to the part “living free has risks. I’m willing to accept those risks to protect our freedoms.” and it seems you are not accepting risks but giving up american rights to live risk free? it was a question because I really don’t think you want that. but let us disagree and speak another time.

Anonymous Coward says:

Chaz, do you even know the NSA wiretap issue, or you just don’t care? Do you realize the big firestorm isn’t about listening to conversations but looking at calling patterns of who was talking to whom? Do you realize the govt, has been tapped into international calling pipelines since pretty much the inception of telecom? Are you just using this because you don’t like GWB? Personally, I am a vet Kalthough not as old a fart as you since Vietnam was before my time but Gulf War after my time) and I approve of the current idea of the war but hate how it is being conducted.

I watched the towers fall 5 years ago, I spent 8 hours trying to get out of NYC. Maybe people in other parts of the country don’t see the danger, but I had friends and compadres killed in the barracks in Beruit. I do have a fear of the terrorists, because I know what they can do. Do I live in fear? No. but I also don’t believe in being stupid.

Life may not have been fair for the terrorist (or freedom fighter, which ever label you wish) maybe we did screw them over in the past, maybe we did hurt them. Whatever, I still don’t want them to be able to kill Americans.

chaz says:

Re: Re:

Yes!care.Yes!worked at telcom 30 yrs.Yes!, Don’t like gwb and I look funny at Bill Clinton also-don’t trust policiticos. Hope you don’t too. Don’t have any idea about your statement”Life may not have been fair for the terrorist (or freedom fighter, which ever label you wish) maybe we did screw them over in the past, maybe we did hurt them. Whatever, I still don’t want them to be able to kill Americans.” -maybe you are just overheated. SUBJECT: Telco maybe sued for giving out info they didn’t have to- don’t think they should have done it with out a warrent, should they be sued Heck Yes. ? how much of your socalled rights would you give up not to be “stupid’

Anonymous Coward says:

Chaz, giving out calling patterns isn’t against the law. You don’t think govts around the world are not hooked into exchang servers and Google mail servers?

Should people expect privacy over non public internets? Do I mind that the NSA looks at who I talk too? No, and I don’t think it violates my rights.

I trust politicians, but maybe for a different reason. Few would make decisions that are needed here. Strong medicine is needed to fix things, but we won’t stand for such action. Too bad, because from healthcare to education to defense to immigration, we need to start making hard decisions.

Frink says:

“Too bad, because from healthcare to education to defense to immigration, we need to start making hard decisions.”

It will never happen as long as there are election campaigns every two or four years. Nothing is more important to a career politician than reelection and campaign donations. Politicians need to please the people with money so they can make more money. They need to please special interest groups. The issues affecting average folks are not important. There is no difference between a Republican and a Democrat any more. It’s all about power and money now.

I don’t see any reason to trust politicians. The system is FUBAR.

Andrew Strasser says:

Finally some sense enters our planet.

I just stand here watching as the whole world is totally turned upside down by the dirtiest administration since Nixon. Amazing really what they let through these days when they are checking to see if you’re capable of doing the job. Guess president doesn’t rank on the intelligence depts. list…..

Tyshaun says:

a very simple solution!

The problem I have isnt with the wiretapping but the administrations refusal to simply make the system work more efficiently. Their entire “claim” is that the FISA secret course warrant process is too slow, OK, SPEED IT UP! Add more judges, reduce the beurocracy, the point is that you can easily maintain the integrity of Constitutional protection against warrantless search and seizure AND respond to terrorist (or other criminal) threats in a timely fashion.

My personal opinion is that Bush chose not to streamline the FISA approval process, and instead circumvent it, because they are listening in on things that they know they couldn’t justify under the scrutiny of a judge. Hell, the fact that they could submit warrant requests after the fact should have even the most right wing person asking why they didn’t? It just makes no sense.

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