NSA building massive database of phone records

by Go/27:
So let's quit playing semantic games here and get to the point: What basis do you have (if any) for saying that this program might even be possibly legal?
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Laws and regulations are, by their very nature, all about playing very precise semantic games.

What basis do I have for saying the program might be legal?
  • I don't know all of the facts and circumstances about the program to be able to evaluate exactly how the law applies
  • I have yet to see a section of the law that prohibits exactly what has been described in the news reports
Notice that I used the word "exactly" twice above. If the government is not doing exactly what a law specifically prohibits, there is no illegality.

More to my final point, our poorly-informed opinions, expressed on an internet board, about the legality of the program mean nothing. Do as I have already done and write your members of Congress to tell them that:
  • someone must be held accountable if this program does violate existing laws
  • even if this program skirts the technicalities of existing laws, it is unacceptable and should be outlawed

Remember, nearly every law we have is the result of someone doing something wrong that was not illegal at the time it was done.
 
to say that it has not happened and can not happen is simply to stick your fingers in your ears and go nah-nah-nah.
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And just where did I say or allude to this? All I'm saying is that the premise of "Innocent until proven guilty" is being trampled badly by some of the paranoid rantings here and to be careful of the overspray.

Dean
 
Funny that one of the guys screaming the loudest about these "wiretaps" is the one who made them possible in the first place.

http://www.newsmax.com/archives/ic/2006/5/19/125324.shtml?s=ic

Friday, May 19, 2006 12:49 a.m. EDT
Pat "Leaky" Leahy Aided NSA Phone Taps

In 1994 Sen. Pat "Leaky" Leahy co-wrote a law that forced telecommunications carriers to build convenient wiretap features into their networks enabling the kind of telephone records collection now at the heart of the controversy over the National Security Agency's terrorist surveillance operation.

In recent days Leahy has called the NSA's actions troubling and potentially illegal - saying they show that the Bush administration is treating Americans like terrorists.

"'The secret collection of phone call records of tens of millions of Americans?" he exclaimed after USA Today blew the lid off the program last week. "Are you telling me that tens of millions of Americans are involved with al-Qaeda?"

But according to the Rutland Herald, Leahy was singing a different tune 12 years ago, when he was pushing the Senate to pass his bill, the Communication Assistance for Law Enforcement Act [CALEA].

"I suggest to senators if anybody does want to hold [CALEA] up, I hope that at this time next year, neither they nor their constituents, nor anybody they know, is a kidnap victim or victim of a terrorist, and have somebody ask why nothing can be done, and be told because a law that had probably 99 percent support in the House and the Senate did not pass."
Contacted by the Herald earlier this week, Leahy said there was an important difference between what his law authorized and the actions taken by the Bush administration.

"That law talks of the technology of the interception and what technology can be used to intercept and it assumes very clearly that it can only be done with a warrant," the Vermont Democrat insisted.

Some legal experts say, however, said that assumption is not as clear as Leahy claims. Analyzing CALEA in 2003, the Rutgers Computer & Technology Law Journal explained:

"CALEA requires a telecommunications provider to make 'its equipment, facilities, or services ... capable of ... enabling the government ... [without a warrant] to intercept ... all wire and electronic communications carried by the carrier.'"

Civil libertarians are also troubled by Leahy's law.

"The secret search and wiretap provisions could lead to an age of Big Brother-like surveillance," the American Civil Liberties Union complained in the same Law Journal report. "Americans who oppose U.S. policies and who are believed to have ties to foreign powers could find their homes broken into and their telephones tapped."
 
By the by ...

It now turns out that the USA Today story was totally false. Bellsouth and Verizon did not give out their customer's phone records. They are both now demanding a retraction.

A lawsuit was instituted against both of them based on the false USA Today story also.
 
More on the above

http://newsbusters.org/node/5435

USA Today Reporter a Democratic Donor; Phone Company Demands Retraction
Posted by Rich Noyes on May 19, 2006 - 10:43.

Leslie Cauley, the USA Today reporter who last week “broke” the news that three major U.S. telecommunications companies were assisting the National Security Agency in building a database to more easily track any communications by potential terrorists, is listed as a donor to former House Minority Leader Richard Gephardt, according to a search of The Center for Responsive Politics Web site, www.opensecrets.org

A search found a listing for "writer and journalist" Leslie Cauley, indicating she gave $2,000 to Gephardt on June 30, 2003, when Gephardt was running for the Democratic presidential nomination. And that seems not to be her only tie to Democratic politics (see Update below)

Cauley's link to a Democratic campaign seems likely to further cloud the credibility of her story. Two of the three phone companies Cauley fingered, BellSouth and Verizon, have since denied the accuracy of the May 11 USA Today story, and BellSouth yesterday went so far as to demand the newspaper “retract the false and unsubstantiated statements” made by Cauley in her piece.

There have also been questions about the timing of the story, which was given huge play on USA Today’s front-pages shortly before the former head of the National Security Agency, General Michael Hayden, was due to face confirmation hearings to be the next CIA director, and given the fact that many of the key points of the story were actually reported last December by the New York Times.

[UPDATE, 11:30am EDT: Leslie Cauley’s Democratic campaign contributions seem not to be her only tie to liberal politics. Before Cauley joined USA Today, she teamed up with former AT&T and Global Crossing executive Leo Hindery to write a book on business deals, “Biggest Game of All.” But Hindery is not just a businessman — he’s listed as a major donor to Democratic candidates and the Democratic Party, and was even mentioned by The Hill newspaper as a possible DNC chairman in late 2004.]

[The two were apparently close, at least at one point. According to a 2005 write-up in Broadcasting and Cable, “Cauley and Hindery developed a close relationship during their book project, giving her access to his insights and many documents from that period.” The magazine, however, notes that “their collaboration apparently ended very badly,” with Cauley trashing Hindery in a later book, End of the Line: The Rise and Fall of AT&T.]

[According to B&C: “She [Cauley] calls him a ‘carnival barker,’ ‘a junk-food addict with a waistline to match’ and, in a particularly cheap shot, a ‘Queer Eye for the Straight Guy makeover just screaming to happen.’”]​

Friday’s USA Today carries BellSouth’s demand of a retraction on page 4A, below a more prominent story headlined “Senators challenge Hayden on surveillance,” with partial transcripts of General Hayden being asked yesterday about the claimed NSA database program.

According to today’s USA Today:

“BellSouth asked USA Today on Thursday to ‘retract the false and unsubstantiated statements’ about the company that it contends were in a May 11 story about a database of domestic calling records maintained by the National Security Agency.

In a letter to the newspaper's publisher, Craig Moon, the company noted that the story said BellSouth is ‘working under contract with the NSA’ to provide ‘phone call records of tens of millions of Americans’ that have been incorporated into the database.

‘No such proof was offered by your newspaper because no such contracts exist,’ stated the letter, portions of which were read by spokesman Jeff Battcher. ‘You have offered no proof that BellSouth provided massive calling data to the NSA as part of a warrantless program because it simply did not happen.’​

Steve Anderson, a USA Today spokesman, said ‘We did receive the letter this afternoon. We are reviewing it, and we will be responding.’...

The paper also included this background that seemed designed to justify their earlier publication:

USA Today first contacted BellSouth more than five weeks ago. On the night before the story was published, the newspaper described the story in detail to BellSouth, and the company did not challenge the newspaper's account. The company's official response at that time: ‘BellSouth does not provide any confidential customer information to the NSA or any governmental agency without proper legal authority.’​

Since the story broke, Cauley herself has made the rounds. The Washingtonian magazine’s Harry Jaffe wrote a gushing profile applauding her “victory for beat reporting.” He quoted Cauley as saying her USA Today “scoop” demonstrated the usefulness of unnamed sources:

“Like any reporter,” she says, “one thread leads to another leads to another” in the “messy process of reporting.”

Part of the messy process was clearing the use of anonymous sources, on which the story was based.

Says Cauley: “This further validates the use of confidential, unnamed sources. They have a real value in our business.”​

With the phone companies demanding a retraction and her own Democratic connections now revealed, the “value” of her unnamed sources seems increasingly dubious. Could Leslie Cauley may be on her way to becoming a print version of CBS’s disgraced Mary Mapes?
 
the ol 2 step

Someone once said that what "they" are doing is completly legal and with this, now want to get out of the spotlight of public scrutiny.

with no oversight,there wouldnt be any record of it happening,no link to it happening or even the extent of the whole program.nadda..nothing..not a snowballs chance.

someone let the cat out of the bag a long time ago,legal or not. To me, its not a democrat or republican issue but one of right or wrong.just my 2 cents.
 
"n 1994 Sen. Pat "Leaky" Leahy co-wrote a law that forced telecommunications carriers to build convenient wiretap features into their networks enabling the kind of telephone records collection now at the heart of the controversy over the National Security Agency's terrorist surveillance operation."

This is not the path that is being used. The wiretap feature was made a requirement in the new electronic switches since actually getting to the audio was becoming harder and harder. When a court orders a wiretap the Telco programs the switch to send all audio on the line to a single output port on the switch that then is fed into monitoring equipment. This equipment then records the audio for later review. E-Systems, Melpar Division (now part of Raytheon) used to make the logging and playback gear for the DOJ (and may still).
While the Telco uses some in-band signaling for call routing, a significant amount is done out of band now since a complete two way path must be set up over unidirectional fiber optic lines. The signaling information is also recorded by the Telco for billing purposes.
There was a court ruling in the 1970s allowing the disclosure of dial number information as regular business records. If I get around to it I will try to find a cite.
When the old Telecommunications Act was passed, outside of toll service that required records of numbers and durations, local calls went through mechanical switch frames and once the call ended there was no record of it being made (tracing consisted of walking though the relay racks and noting switch positions in the central office during the call). The pen register was developed to record the dial pulses, but it needed to be affixed directly to the lines (either in the CO or in the wire path). The rise of touch-tone phones eliminated the simple pen register and required electronics to turn the tones into actual dialed number and record them.
Since the numbers have become normal business records, the level of legal protection given them has steadily declined (as it has for all personal records held by third parties including banks).
Tracing a call now requires only an accurate time for the call. The Telco can then search the calling records to find the information. If you file a complaint they will forward the data to the local PD to be used to investigate.

And Leahy is still an a**hole.
 
Very Simple argument:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

The present administration is gathering data without "due process".

There is a FISA court for ensuring due process is afforded to each case. There are provisons that give the administration some leeway in getting information then obtaining a warrant.

So either we accept the Bill of Rights at face value or we say that in emergencies they can be suspended without "due process". If you accept this principle you shouldnt say a word when they come for your firearms during a "declared emergency".

There are some things that need to be done to protect this nation, but ignoring the Bill of Rights without "due process" is heinous. If the administration was using the FISA courts for this process then it would be a different matter.

So when they choose to declare an emergency and come for your guns be sure and tell them I have nothing to hide.
 
"There is a FISA court for ensuring due process is afforded to each case."

FISA has a couple of problems. The executive has a power to order things irrespective of FISA, and FISA has acknowledged this. The limits are not clear.
There is no actual case, and that is the problem.
NSA only knows who the overseas bad guys are. They are trying to see who talks to them.
I am not worried abnout a computer system checking to see of I called an overseas phone number, and there are still questions about the legality of even tapping overseas calls. If a friend of a friend talked to these numbers I will fall off pretty quickly as an uninvolved third party.
Traffic analysis searches for needles in haystacks, and any further activity it turns up will very likely find its way to FISA. A case would then be made to find out what is being discussed.
I believe this is mostly a tempest in a teapot, and anything ot might have produced has been destroyed by the public exposure.
There are many covert activiteis that are rather obvious.
Why tell everyone what we are doing?
When Bin Laddens use of INMARSAT phones leaked, he promptly stopped using them. So much for finding the SOB.
 
Smith v. Maryland, No. 78-5374
Smith v. Maryland
No. 78-5374
Argued March 28, 1979
Decided June 20, 1979
442 U.S. 735
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND

Syllabus
The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home. Prior to his robbery trial, petitioner moved to suppress "all fruits derived from" the pen register. The Maryland trial court denied this motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Petitioner was convicted, and the Maryland Court of Appeals affirmed.

Held: The installation and use of the pen register was not a "search" within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.

(a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a "legitimate expectation of privacy" that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as "reasonable." Katz v. United States, 389 U.S. 347. Pp. 739-741.

(b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not "legitimate." First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does, in fact, record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone, rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 736] to the police, cf. United States v. Miller, 425 U.S. 435. Pp. 741-746.

283 Md. 156, 389 A.2d 858, affirmed.
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If this Case is still good law, then the collection of telephone number information does not violate the Constitution. And I suppose that the President would argue that he possesses the inherent power as the Chief Executive and Commander-in-Chief to collect the telephone number information to enforce Federal law and to provide for the Nation's security.

Edited to add:

The present administration is gathering data without "due process".

There is a FISA court for ensuring due process is afforded to each case. There are provisons that give the administration some leeway in getting information then obtaining a warrant.
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If no Constitutional Right is violated, then there is no requirement for due process, and no violation of one's Fifth Amendment Right to Due Process. Just so, the collection of telephone information does not require due process in a FISA (or any other) court.

That doesn't mean we can't talk about whether it should be done.
 
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"In recent days Leahy has called the NSA's actions troubling and potentially illegal "

If the Senator doesn't know whether it's unlawful or not, I know I sure don't.

John
 
If a friend of a friend talked to these numbers I will fall off pretty quickly as an uninvolved third party.
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Tell it to the Ghosts of J. Edgar, Joe McCarthy or King George. That was quite enough for some bureaucrats then; it's more than enough for some today.

Federal bureaucrats have jobs to do. Their budgets absolutely depend on not having enough funds to get the jobs of yesterday done tomorrow. This inevitably leads to "Mission Creep". Take it from a former Federal Bureaucrat....I've been there. It turned my stomach; I left (ran?) after two years.

NSA tomorrow is required to have a more urgent "Mission" than NSA today, just to maintain today's budget. Anyone here ever heard of Waco, Texas? This is the nature of Federal Funding. YOU are the suspect of tomorrow. Wake up to it and stop dribbling about how "They'll never be interested in me". Again, I give you the Ghosts of J. Edgar, Joe McCarthy or King George. Read your history!
Rich
 
+1. And don't forget Watergate.

Also, have any of the proponents of these programs considered their utility against terrorists? Anybody here think that a competent terrorist is dumb enough to discuss anything in the clear on his own telephone?
 
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