DOJ Helped AT&T, Others Avoid Wiretap Act, Promised Not To Charge Them If They Helped Spy On People

from the uh.... dept

Want to know one reason why the feds are so interested in giving blanket immunity to anyone who helps them spy on people? Perhaps because they’re already telling companies that they have immunity if they help them spy on people. Specifically, they’ve issued special letters of immunity, more or less helping companies like AT&T ignore the Wiretap Act.

Senior Obama administration officials have secretly authorized the interception of communications carried on portions of networks operated by AT&T and other Internet service providers, a practice that might otherwise be illegal under federal wiretapping laws.

The secret legal authorization from the Justice Department originally applied to a cybersecurity pilot project in which the military monitored defense contractors’ Internet links. Since then, however, the program has been expanded by President Obama to cover all critical infrastructure sectors including energy, healthcare, and finance starting June 12.

Basically, the Justice Department, at the urging of the NSA, went to various telcos and ISPs and issued secret letters which told them that if they violated the Wiretap Act, the DOJ promised them it would not prosecute. Not surprisingly, this kind of thing is not what you would generally consider legal. However, after CISPA… it would likely be more protected:

A report (PDF) published last month by the Congressional Research Service, a non-partisan arm of Congress, says the executive branch likely does not have the legal authority to authorize more widespread monitoring of communications unless Congress rewrites the law. “Such an executive action would contravene current federal laws protecting electronic communications,” the report says.

Because it overrides all federal and state privacy laws, including the Wiretap Act, legislation called CISPA would formally authorize the program without the government resorting to 2511 letters. In other words, if CISPA, which the U.S. House of Representatives approved last week, becomes law, any data-sharing program would be placed on a solid legal footing. AT&T, Verizon, and wireless and cable providers have all written letters endorsing CISPA.

Apparently, the DOJ knew how problematic this was, and the CEOs of the various ISPs had indicated how worried they were about this program, but it still went forward. In secret, of course. Until now.

Suddenly the emphasis on getting CISPA approved, and the attempts to frighten everyone with scare stories of what will happen without it, make a bit more sense…

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Comments on “DOJ Helped AT&T, Others Avoid Wiretap Act, Promised Not To Charge Them If They Helped Spy On People”

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44 Comments
That One Guy (profile) says:

Well, there goes the veto threat

If the administration is willing to not only back, but expand the unofficial gathering of data from companies like this, I’d say the idea that they’d balk at making it official is somewhere between zero and none, as long as the bill presented has even the slightest veneer of protecting privacy they can point to to defend allowing it to pass unchallenged.

art guerrilla (profile) says:

Re: Well, there goes the veto threat

chocolate jesus is all about comforting bullshit in public, then doing the deal for the kapitalist piggies in private…

it is what he has done since day one, and what he has done on nearly every issue of importance that has come along…

no divination of entrails, no clairvoyance, no complex deconstruction is necessary: ignore his pretty/petty words (like all pols) and look at what he HAS DONE…
excepting a very few social issues, he has gone king george IV one better in nearly every category…

…and yet, stupid libtard sheeple worship his every move when he is implementing a more extremist bush agenda…

you know, it is a good thing we elected a brother; but that is the ONLY good thing about him… the only other thing saint obomber proves, is that a black man can be just as morally bankrupt as an old, rich, white man…

from bootblack to bootlick…
i guess that is progress…

art guerrilla
aka ann archy
eof

Anonymous Coward says:

Re: Do you really think

It’s not a backfill; it’s a threat to hold over others’ heads. Like “Jones will come back!” in Animal Farm. Or are you just this much of an idiot?

On the subject of Animal Farm, I think I know what this horse’s name is – Boxer. With a spot of luck, maybe you’ll be turned into glue and dog food.

Anonymous Coward says:

Care that the laws be faithfully executed.

Article II, Section 3

He [the president] shall take care that the laws be faithfully executed

The president shall take care that the laws be faithfully executed. ?? Faithfully executed. Faithfully executed. ??? F?a?i?t?h?f?u?l?l?y ??? executed.

What the fuck does that clause really mean, anyhow? To Obama? To any of them? To anyone?

What the fuck does that clause really mean?

Anonymous Coward says:

Businesses in charge of congress, an executive ignoring the law and the constitution, the US government is truly terrifying to outside observers. The US executive trying to impose its rules on the rest of the world for the benefit of the businesses that have bought congress. The US government is starting to treat its citizens like it treats the rest of the world, people who have to be prevented from acting against the interests of a small Oligarchy.

Anonymous Coward says:

so much for what i read earlier about new bills being written/discussed over protection for online communications etc. once something like this is in, mainly tnx to an idiot like Rogers for being behind it and lying through his back teeth to those who questioned it, what comes after CISPA will mean nothing! the DoJ and NSA will have gotten exactly what they wanted and the country gets one step closer to the Police State that someone, somewhere is obviously pressing so hard to make a reality!

Violated (profile) says:

Re: A nation of men, not laws

I well recall that when President Obama took office that he promised us all that he would respect the law a lot more than his predecessor did.

I think we can now see the truth behind that statement when had he been serious he would soon be down the DoJ firing those responsible and threatening to shut down the entire department if law abuse continued. Or even to go as far as suing the DoJ and these ISPs in Court.

The US Administration is a very worrying sight these days and what I most fear is a madman at the helm unleashing the full power of the USA on to their own citizens before turning to the rest of the World. Hopefully we never see that day but the US Administration is primed for some major abuse.

I have been saying for a decade that the US Government has been spying on businesses where this is only one of many examples. A good reason for organizations to flee the country or at minimum to aim for full encryption.

Anonymous Coward says:

Re: Re: A nation of men, not laws

… down [at] the DoJ firing those responsible…

Wikipedia: Saturday Night Massacre

The Saturday Night Massacre was the term given by political commentators to U.S. President Richard Nixon’s executive dismissal of independent special prosecutor Archibald Cox, and the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus on October 20, 1973?.?.?.?.

?

?.?.?. The following day Nixon ordered Attorney General Richardson to fire Cox. Richardson refused, and resigned in protest. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. He also refused and resigned.

Nixon then ordered the Solicitor General, Robert Bork (as acting head of the Justice Department) to fire Cox.

Down at DoJ, firing those responsible. Someone got a LOLcats poster for that?

Violated (profile) says:

Re: Re: Re: A nation of men, not laws

That was a rather misplaced reply when there is a big difference between a President firing a Congress appointed special investigator charged to investigate Presidential abuse of power and a President cleaning up the law abuse that is being done in his name.

Should Obama not act then we can only conclude that he is fully happy with the DoJ pressuring ISPs to break the law.

Anonymous Coward says:

Re: Re: Re:2 A nation of men, not laws

Should Obama not act then we can only conclude that he is fully happy with the DoJ pressuring ISPs to break the law.

Oh, I expect Obama to act alright?I expect Obama’s going to fire the people who leaked this program.

Probably prosecute the leakers under the espionage act, too.

RyanNerd (profile) says:

Faithfully Execute the Law

No President of the United States is authorized to repeal parts of legislation passed by Congress. He may veto the whole legislation, but then Congress can override his veto if they have enough votes. Nevertheless, every President takes an oath to faithfully execute the laws that have been passed and sustained ? not just the ones he happens to agree with.

If laws passed by the elected representatives of the people can be simply over-ruled unilaterally by whoever is in the White House, then we are no longer a free people, choosing what laws we want to live under.

When a President can ignore the plain language of duly passed laws, and substitute his own executive orders, then we no longer have “a government of laws, and not of men” but a President ruling by decree, like the dictator in some banana republic.

art guerrilla (profile) says:

Re: Faithfully Execute the Law

sure, THEORETICALLY, just like ‘how a bill becomes law’ type of lessons we’ve all seen since first grade are the theoretical construct of the process; but the ACTUAL process is 2-3 levels of deep politics us 99% are not eligible to observe…

BUT (and it is a big butt), can anyone tell me exactly WHERE the so-called ‘executive signing statements’ fit in this ‘how a bill becomes law’ process ? ? ?

i’ve been scouring my copy of the constitution for ‘executive signing statements’, and i’ll be gosh-durned if i can find it… (nevermind SECRET executive signing statements)

so -in effect- the pres actually signs a bill into law (or a veto is overidden), and the pres simply busts out a secret executive signing statement that says ‘NOT!’, which negates the whole law…

gee, don’t tell me: some president made a secret executive signing statement which authorized secret executive signing statements having the force of law…
snicker

art guerrilla
aka ann archy
eof

Anonymous Coward says:

Decency, security and liberty alike demand....

Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means ? to declare that the Government may commit crimes in order to secure the conviction of a private criminal ? would bring terrible retribution.

??????? ??Mr Justice Brandeis, dissenting in Olmstead v United States (1928; decision overturned by Katz (1967))

Anonymous Coward says:

What’s also interesting is this could illustrate the key to making sure CISPA is defeated. If someone on the Tea Party side of the party were to post an article claiming CISPA was just an attempt to cover Obama’s butt. Once it bounces around in the right wing echo chamber for a while it might become truthy enough to make it politically toxic for the R’s.

Suzanne Lainson (profile) says:

Data sharing

According to the linked article, “The Wiretap Act limits the ability of Internet providers to eavesdrop on network traffic except when monitoring is a ‘necessary incident’ to providing the service or it takes place with a user’s ‘lawful consent.'”

The data gathering companies are already eavesdropping (with user’s consent through the service agreement). If government got out of the security business and just handed it over to private enterprise, we’d end up with as much or more monitoring than we have now, but that would skirt some of the politics of government being involved.

I keep point out that companies want to monitor people and are already doing it. They will get their way, given the way things work in DC.

Suzanne Lainson (profile) says:

Re: Data sharing

We already have massive citizen monitoring by private companies right now. They are already cross-referencing different data sets so they know what people do on and offline.

What’s being worked out now is what happens with the data and who is protected. The companies want to continue to monitor people, save the data, and act on the data, but they want to cover themselves so that they don’t get in trouble for all of this monitoring.

You will likely see laws drafted or regulations dropped to protect the companies. It’s not about citizen privacy because that would kill what these data gathering and data selling companies are doing.

Suzanne Lainson (profile) says:

Re: Data sharing

Look at this. Technology is providing so many ways to monitor people and their activities now, and companies don’t want these doors closed to them. There’s a ton of money in monitoring because it gives you more insight into what people do, and you can sell that. You can completely toss government aside, and companies will still monitor people.

New Technology Inspires a Rethinking of Light – NYTimes.com: “Recognizing this, other companies, like the newly renamed Sensity Systems (formerly Xeralux) are reimagining lampposts as nodes in a smart network that illuminate spaces, visually monitor them, sense heat and communicate with other nodes and human monitors.”

Anonymous Coward says:

And they’ve officially lost the high ground in both wars and the whole “free and open Internet” debate. They will be remembered as the next Soviet Union.

If our World War 2 veterans knew their descendents were going to be like the enemies they risked their lives and countries to eradicate, the pro-life movement would’ve never existed.

Suzanne Lainson (profile) says:

Re: Re:

Not surprising, considering how tight Barry is plutocrat phone monopolies.

This isn’t limited to phone companies. Lots of companies are compiling data. If anything, the phone companies have far less of it than other companies.

CISPA suffers setback in Senate citing privacy concerns | Politics and Law – CNET News: “The Cyber Information Sharing and Protection Act, commonly known as CISPA, permits private sector companies — including technology firms, such as Facebook, Twitter, Google and Microsoft, among others — to pass ‘cyber threat’ data, including personal user data, to the U.S. government.

“This means a company like Facebook, Twitter, Google, or any other technology or telecoms company, including your cell service provider, would be legally able to hand over vast amounts of data to the U.S. government and its law enforcement — for whatever purpose it deems necessary — and face no legal reprisals.”

Suzanne Lainson (profile) says:

Re: "We the people" = "We the money"

This is the nuance that needs to be addressed. This is a bill that benefits private enterprise. You can’t isolate government from private enterprise. Among the companies that collect data, privacy is not one of their concerns, and they will look for laws that protect them as they collect data and share it/selling; and hope to eliminate laws that prevent them from data collection and sharing/selling.

Thinking that private enterprise is your friend and that government is your enemy can distract you from some of the issues. I think it might be better to make government better rather than to eliminate it and give all control over to private enterprise, which often would prefer to operate without any supervision or regulation at all.

It?s privacy versus cybersecurity as CISPA bill arrives in Senate | PCWorld: “CISPA would let private companies share data with law enforcement officials and government agencies if the data qualifies as what the bill calls ‘cyber threat information’ that could help solve a crime. That term?s vagueness is a big part of the privacy problem, says Jeramie Scott, national security fellow at the Electronic Privacy Information Center. ‘It uses terms like “vulnerability to a network” and “threat to the integrity of a network” in its definition that are left to the private sector to interpret,’ Scott says.
Definitions covering data are vague enough to invite oversharing

“CISPA?s vagueness gives private companies a lot of wiggle room to overshare information.”

Suzanne Lainson (profile) says:

Re: Re: "We the people" = "We the money"

Here’s how I would best put it.

The goal of many Internet companies days isn’t to protect you. It’s to protect themselves.

They want to know as much about you as possible and to use that to their advantage. They are monitoring you as fast as the technology allows them to do so and looking for ways to profit from that. There will be monitoring devices in every home, every street corner, and on every device you carry. Not because government wants it or has the manpower to do anything with that flood of data, but because companies can make money from all of that surveillance.

These companies are interested in security … to protect their own operations. Sometimes that means working pro-actively with government.

Suzanne Lainson (profile) says:

Re: Re: "We the people" = "We the money"

I just reread this and it might not be clear.

I think it might be better to make government better rather than to eliminate it and give all control over to private enterprise, which often would prefer to operate without any supervision or regulation at all.

What I should have written:

I think it might be better to improve government rather than to eliminate it. I’m wary of a system that allows private enterprise to operate without any supervision or regulation.

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