A FISA scenario–doing it for the LULZ

By now, everyone knows that Vice Presidential candidate Sarah Palin’s email got hacked. And why?  Some anonymous comments on various blogs said they “did it for the lulz“. That is, for amusement.

And now the McCain campaign has issued a statement:

This is a shocking invasion of the Governor’s privacy and a violation of law. The matter has been turned over to the appropriate authorities and we hope that anyone in possession of these emails will destroy them.

Well, that’s a switch.  Palin has prided herself on transparent government.  Now she MINDS if someone reads her Email?  If she doesn’t have anything to hide, why does she care?

But I agree. It’s a violation of privacy and it’s Not A Good Thing. Sarah Palin’s email should be private unless someone can show a good reason to read it and produce a search warrant.

The same should be true for EVERY citizen of the United States.  But it isn’t.

The FISA Amendments act of 2008 allows the U.S. government to hack your computer and your email–also your house, your car, your office–without a warrant.

Here’s how it works:

  • Within 7 days of the hack, they are supposed to apply for a certificate that says they will tell a FISA court they are hacking you.  They don’t have to say who or where they are hacking. They don’t have to give a reason.  They can be doing it just for the LULZ. They are allowed to change around the date on the certificate.
  • Then the FISA court has 30 days to determine whether it’s approved. FISA courts approve 99.9% of the certificates.  Surprise, surprise, surprise.
  • In the remote chance that the FISA court does not approve it, the government can appeal.  Then the government can continue to hack your email for another 60 days until the FISA court makes a decision. So that means the government can hack your computer and your email without a warrant (they are waiting for a “certificate” to do it–remember?) for 97 days, right?

Nope. Because of this loophole:

  • Time limits for court decisions can be extended if it’s in the interest of security.

And if the court tells them they can’t hack your email, then what? Like in McCain’s press statement about the hacking of Palin’s email,  “anyone in possession of these emails will destroy them”? No, I’m afraid not.  The government can keep all the information it obtained illegally.

But what about the 4th amendment, you may ask. Doesn’t the bill of rights make it illegal for telecommunications companies to participate in that?  How does the government get away with that, you may ask.  Easy.  AT&T. Verizon, and Sprint just spent $53.6 million on lobbying and campaign contirbutons.

A politicians email got hacked and everyone is making indignant statements. But can you imagine an ordinary American’s email getting hacked by the government and a politician coming out with a statement like this?:

“This is a shocking invasion of  Americans’ privacy and a violation of the constitution. The FISA Amendments Act of 2008 has been turned over to the Congress of the United States for repeal and we hope that any government agency in possession of these citizens’ emails will destroy them.”

Here’s what will probably happen instead.  They will find one individual to take the rap for the Palin incident.  As long as that person has an extra $53.6 million laying around to lobby the government and contribute to politician’s campaigns, they’re not going to have any problems. But I hope that whatever they do to that individual, they also do to the government, the FISA courts, and the telecommunications industry. Vigilante actions by governments are just as bad as vigilante actions by individuals, maybe worse.

The year before I entered a university, they had a rule about privacy.  If a female student had a male visitor, the door had to be open.   One night some students went over to the college president’s little on-campus mansion and removed the front door.  Took it right off. The guy woke up in the morning and his residence was wide open.  “We wanted to make a point about how it felt not to have privacy”, said one of the students. The point was taken and the rule revoked.

Let’s hope that Sarah Palin–and all Americans–get their computer security back soon.

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The FBI wants to interview your neighbors and work-mates

Are your neighbors starting to look at you funny?   Do strangers seek you out and chat you up for no particular reason? When you sit down in the company cafeteria, does everyone suddenly get up and leave?

Maybe you’re not really paranoid. Maybe the FBI has been asking everyone about you because you are the subject of a “preliminary terrorism investigation“. The guidelines for who can be investigated are in the process of being reviewed before they are finalized next week.

…the new policy would let agents open preliminary terrorism investigations after mining public records and intelligence to build a profile of traits that, taken together, were deemed suspicious….(F)actors that could trigger an inquiry would include travel to regions of the world known for terrorist activity and access to weapons or military training, along with the person’s race or ethnicity.

A group of senators has asked for more time for the public to study the rules before they are implemented.  Senators Dick Durbin of Illinois, Russ Feingold of Wisconsin, Edward M. Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island

said the guidelines would let the FBI use “a variety of intrusive investigative techniques” with no evidence of possible wrongdoing. The techniques could include: long-term FBI surveillance, interviewing neighbors and work-mates, recruiting informants and searching commercial databases for information on people “all without any basis for suspicion.”

Senators Patrick Leahy, D-Vt. and  Arlen Specter, R-Pennsylvania, who are members of the Senate Judiciary committee, also asked for the guidelines to be delayed.

Somehow you can just know the Americans being spied on aren’t going to be blue-eyed Rebublican Buddhists.  Good for Senators Leahy, Specter, Durbin, Feingold, Kennedy, and Whitehouse.  Where are the rest the senators?

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ACLU blog on FISA: it’s not over

Glen Greenwald, writing in the ACLU blog today, says the Fat Lady has yet to sing in the matter of the FISA Amendments Act of 2008.

How many times does the fourth amendment come up in a generic cafeteria discussion of FISA?  Not at all.  Too esoteric.  It doesn’t pass the New York taxi driver test, in other words, you can’t explain it to a cab driver in a few sound bites.  Try it.  But retroactive telecom immunity definitely strikes a nerve.  You can talk about eavesdropping and companies that are breaking the law, and everybody gets upset about that one and puts in their two cents worth.  And it’s the retroactive immunity Greenwald discusses here. He finds retroactive immunity unconstitutional because

1)  Congress does not have jurisdiction to determine whether the telecom companies operated “in good faith” when they wiretapped without a warrant.  Only the courts can determine that.

2) The right to sue telecoms is property.  Taking away the right to sue deprives citizens of property without due process. The fifth amendment allows this only with just compensation.  An example of this is when Congress created the 9/11 Victims Compensation Fund in lieu of being able to sue in court.

I have no doubt that eventually habeas corpus will mean something again in this country and that the Constitution will be honored again.  Hopefully in my lifetime.  We have been through the McCarthy era and the Civil War before that, and the pendulum always swings back after ten years or so.  But it doesn’t swing back until the security threat is over. In the meantime, people like Greenwald keep the torch from going out.

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This is your Bill of Rights on the Senate floor turning into toast

This is your bill of rights:

This is your bill of rights on the Senate floor July 9, 2008:


The bill that was supposed to protect us from terrorists allows the government to search our homes, our cars, our offices and keep searching them without a warrant until,… well, they have 7 days to tell the FISA court they are spying on you, then the FISA court has 30 days to review it and decide if it’s proper, then if it’s not proper the government has another 60 days to spy on you while they appeal it. In the meantime if they find what they’re looking for–and they don’t have to tell anyone what or who they are looking for–then they might stop on their own. Or not.

For those 97 days, no one is watching them to make sure they aren’t just targeting you because you are the wrong political party, or the wrong religion, or have a girlfriend or a boyfriend–or the other way round if you are gay–or maybe you have a blog that talks about tolerance and peace, or maybe they really meant to spy on the guy next door or someone with a similar name, and went into your house by mistake.

While they are watching you, no one is watching them.

That’s not supposed to happen. They should have a warrant.

Here’s the Fourth Amendment to the Constitution:

“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.”

What is the big problem with getting a warrant already? Someone explain to me how spying on Americans without a warrant is supposed to protect us.

Posted in Election 2008, Obama. Tags: , , . Comments Off on This is your Bill of Rights on the Senate floor turning into toast

Amendment votes for FISA Amendments Act

Vote totals for the three amendments under consideration for FISA Amendments Act of 2008 HR 6403 are now posted at the firedoglake blog, if you can get through. All three amendments failed.

The blog, which was praised by Chris Dodd in his email campiagn agains the bill, appear to be doing a parital liveblog, as the debates are being broadcast on CPAN. Russ Feingold and Chirs Dodd have already spoken.

Vote totals:

Dodd-Feingold-Leahy Amendment: YAYS 32 NAYS 66

Specter Amendment: YAYS 37 NAYS 61

Bingamon Amendment: YAYS 42 NAYS 56

  • Talk Left reports that Obama and Clinton both voted for the Dodd amendment and the Bangaman amendment.
  • The debate is supposed to be available on CSPAN |here|, but I haven’t been able to get through.

UPDATE: 2:53 ET:

Debate is scheduled to continue at 2:15 ET after a recess for lunch.

A commenter at DailyKos, which doesn’t seem terribly avid in it’s coverage of this bill, has posted the following roll call vote for the amendments:

Roll Call vote on Dodd Amendment. Here’s the good guys.

Akaka (D-HI)
Baucus (D-MT)
Biden (D-DE)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Byrd (D-WV)
Cantwell (D-WA)
Cardin (D-MD)
Casey (D-PA)
Clinton (D-NY)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Harkin (D-IA)
Kerry (D-MA)
Klobuchar (D-MN)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Menendez (D-NJ)
Murray (D-WA)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Sanders (I-VT)
Schumer (D-NY)
Stabenow (D-MI)
Tester (D-MT)
Whitehouse (D-RI)
Wyden (D-OR)

Yeas on Specter:

Akaka (D-HI)
Baucus (D-MT)
Biden (D-DE)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Byrd (D-WV)
Cantwell (D-WA)
Cardin (D-MD)
Casey (D-PA)
Clinton (D-NY)
Conrad (D-ND)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Harkin (D-IA)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
McCaskill (D-MO)
Menendez (D-NJ)
Murray (D-WA)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Sanders (I-VT)
Schumer (D-NY)
Specter (R-PA)
Stabenow (D-MI)
Tester (D-MT)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)

Yeas on Bingaman:

Akaka (D-HI)
Baucus (D-MT)
Biden (D-DE)
Bingaman (D-NM)
Boxer (D-CA)
Brown (D-OH)
Byrd (D-WV)
Cantwell (D-WA)
Cardin (D-MD)
Casey (D-PA)
Clinton (D-NY)
Dodd (D-CT)
Dorgan (D-ND)
Durbin (D-IL)
Feingold (D-WI)
Feinstein (D-CA)
Harkin (D-IA)
Johnson (D-SD)
Kerry (D-MA)
Klobuchar (D-MN)
Kohl (D-WI)
Lautenberg (D-NJ)
Leahy (D-VT)
Levin (D-MI)
Lincoln (D-AR)
McCaskill (D-MO)
Menendez (D-NJ)
Mikulski (D-MD)
Murray (D-WA)
Nelson (D-FL)
Obama (D-IL)
Reed (D-RI)
Reid (D-NV)
Salazar (D-CO)
Sanders (I-VT)
Schumer (D-NY)
Specter (R-PA)
Stabenow (D-MI)
Tester (D-MT)
Webb (D-VA)
Whitehouse (D-RI)
Wyden (D-OR)

Here’s another possible link to CSPAN.

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Phone bill too high? Use free FISA calling tool to oppose the FISA amendment

The senate is scheduled to start consideration of the FISA Amendments Act of 2008 this morning at 9:30. There is still time to make some phone calls to your senators.

If you pay extra for long distance, this tool from Act Blue can help you make phone calls for free. You enter your zip code and phone number and the system calls you back at your own phone and auto dials the long distance numbers for you.

Typically, the way these autocall systems work is that you input your information and the system calls you back within a few seconds. It then chooses the numbers for you to call and dials them automatically.  You can’t see the number you are calling.  The person answering the phone cannot see your phone number either–they see a local phone number, or one with an appropriate area code.

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What the latest FISA amendment would do

With the senate scheduled to consider the FISA Amendments Act of 2008 tomorrow, here is an overview of what the bill would do.

  • First of all, the bill is not a replacement for the FISA courts. The first part of the bill covers surveillance of those who are NOT U.S. Citizens, whether they are in the U.S. or abroad. American citizens, wherever they are, are not supposed to be targeted under the fist part of this law, but later parts cover targeting Americans abroad.
  • The bill contains a lot of weasel language about accidentally wiretapping U.S. citizens, with much use of words like “intentionally target” and “reasonably believe”.
  • The Attorney General and the Director of National Intelligence have to submit a certification saying they did or will try to apply to the FISA court for approval for the surveillance within 7 days of the date of the certificate. They can move the date of the certificate around later, depending on when the surveillance begins. They are supposed to pay the telecoms for their services. They are supposed to make their requests to the telecoms in writing. They don’t have to say where the wiretapping will take place. They are supposed to keep a copy of the certification notice to the FISA court. The FISA court has 30 days to review the certification and determine whether it is proper and legal.
  • Telecoms cannot be sued in court for going along with this.
  • The government can require security measures from telecoms.
  • If a telecom does NOT want to go along with this, they will be in very deep doo doo and spend a lot of money on lawyers. The “electronic communication service provider”–the telecom asked to wiretap–can request of the FISA court not to do the wiretapping. The FISA court has to assign to petition to a judge within 24 hours–24 hours!–and review the petition within 5 days. If the judge finds the government request to be improper or illegal they can tell the telecom they don’t have to do it. Otherwise they can order the telecom to comply. They have to do this in writing. Then if the telecom still doesn’t want to carry out the wiretapping, they can be sued for contempt of court. If the telecom does not agree they can take it to the Supreme Court “under seal”, whatever that is, probably some sort of secrecy.
  • If the court does not agree with the government that a wiretap is proper, the government can either alter their surveillance to comply with the court, stop the surveillance, or appeal to the FISA court of review. The FISA review court has 60 days to make a decision; in the meantime the government can continue to wiretap. It is not clear what happens if the government “corrects the deficiency”–does the new government procedure then go back to FISA for another review and reset the 60-day clock?
  • Time limits for court decisions can be extended if it’s in the interest of security.
  • FISA will keep their proceedings secure.
  • Reauthorizations should be renewed at least 30 days before they expire. (current projects are said to be expiring in August– is this the rush to pass FISA amendments bill now?)
  • Every six months the Attorney General and Director of National Intelligence will submit a report to the FISA court and to congressional intelligence and judiciary committees. The report will consist of a review of how well they have managed not to wiretap Americans and how many citizens ( a U.S. citizen in this bill is referred to as “a United States-person identity”) have actually been wiretapped, also something called “minimization procedures”.

‘(e) Minimization Procedures-

    ‘(1) REQUIREMENT TO ADOPT- The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that meet the definition of minimization procedures under section 101(h) or 301(4), as appropriate, for acquisitions authorized under subsection (a).

    ‘(2) JUDICIAL REVIEW- The minimization procedures adopted in accordance with paragraph (1) shall be subject to judicial review pursuant to subsection (i).

Apparently is has something to do with how the “acquisitions” or recordings are handled. Wouldn’t it be really funny if this was just Newspeak for a zip file on a thumb drive?

  • The Inspectors General of the Justice Department, and any intelligence agencies authorized to conduct wiretapping, are authorized to review how many American citizens were actually wiretapped and also the mysterious “minimization procedures”. The review can be presented to the heads of the intelligence agencies, the head of the Justice department and congressional intelligence and justice oversight committees. The heads of the intelligence entities (aren’t they agencies anymore?) will write an annual review, which goes to the AG, FISA, the head of Justice, and the congressional justice and intelligence oversight committees.
  • But, wait a minute, this isn’t just about wiretapping. In section 703 c 4 we find out that an order approving “ACQUISITIONS INSIDE THE UNITED STATES TARGETING UNITED STATES PERSONS OUTSIDE THE UNITED STATES” has to specify “the nature of the information sought to be acquired and the type of communications or activities to be subjected to acquisition”. What is an “activity” and how do you acquire it? The FISA court approval document also has to specify “a summary of the means by which the acquisition will be conducted and whether physical entry is required to effect the acquisition”. Physical entry? We’re not talking about planting bugs in telephones here, are we. And they have to specify the “means”? So this isn’t just about wiretapping. It could cover just about any object that could be searched for–emails, computers, papers, even what’s in someone’s medicine cabinet–and inside anything–homes, cars, offices.
  • Domestic spying (not just wiretapping it seems) approvals are good for 90 days and can have more 90 day extensions after a FISA judge reviews the circumstances of what has already been done.
  • Up until this point, this bill does not authorize targeting American citizens, but now Section 704 specifically details the requirements for spying on a U. S. citizen abroad. An American citizen can be spied on if there is a certification filed with FISA or the Attorney General authorizes the spying as an emergency. The identity of the American citizedn does not have to be known. The spying is supposed to stop if the person is known to enter the U.S., but can resume again after they leave. In this type of spying, the FISA judge who reviews the case may review how the information was used, but not how it was collected.
  • The Attorney General can authorize an emergency spying on an American abroad, but has to notify the FISA judge at that time, and file a certification within 7 days. The authorization is good until the certification is obtained or the desired information is obtained.
  • Information obtained without a certification cannot be used in court, or disclosed, unless there is a threat of harm to someone.
  • Civil lawsuits against telecoms are prohibited as long as they have a written authorization–and there is quite a lengthy description here of what documentation is okay to prove authorization–after 9/11 for the wiretap.

~~~~~~~~~~~~~~~

Comments and ruminations:

The bill starts out benign and slowly gets scary. After all, who would disagree with a wiretap targeting someone in another country who was not American, especially if they were planning another 9/11? Then we get to wiretapping non-citizens who are in the U.S.–still sort of a gray area, but not that objectionable. Do foreigners have rights? Well, we stuck a toe in the water and didn’t get frostbite, so maybe it’s a reasonable bill after all.

Then we read about all the reporting required everytime there is a wiretap. Reports in triplicate to Justice, FISA, and bipartisan intelligence committees in both houses of congress. Good idea, oversight, accountability. That’s what an Inspector General is for. Prevent waste, fraud, abuse. In some agencies they’re even independent of the agency’s director, which is handy if you want to scrutinize the agency and keep your job at the same time. The Republicans and Democrats will be tripping over each other to make sure it isn’t used as a political tool that can be used against them .

Much has been made of the Attorney General’s ability to make emergency declarations in order to spy without a certification, but it looks like the AG can only do that with Americans abroad and has to make a declaration to the FISA first and follow it up by applying for a certification.

The fourth amendment says no search and seizure without a warrant, but here warrants have been replaced by certifications. What ‘s the difference? Not having to specify the person searched for or the specific place to be searched. I suppose that’s necessary when dealing with the internet and all those anonymous hackers on steroids. It’s been mentioned elsewhere that warrants can be subpoenaed. Can certifications? But a certification has to be listed in all kinds of reports to the executive and legislative branches.

Information obtained by spying on Americans abroad before a certification is obtained cannot be used in court–this is nasty. The American Way is to sue. We don’t war on each other because it’s so much more fun to throw our lawyers at each other. The right of Americans to sue and be sued cannot be impinged upon. Also it would be really nice to try some terrorists and put them in jail instead of having all these foreign covert actions. It’s killing our reputation abroad. I bet if the world found out how much nasty fun lawyers can be, war would disappear forever. Plus if there was some legally admissible evidence, we could think about how to lock up some terrorists legally.

Who is restricted from bringing lawsuits? Not the telecoms. The telecoms can take the FISA appeal court ruling to the Supreme Court. Not the government. The government can take any objections of the telecoms to the Supreme Court. What about any citizens who get spied on? Looks like they might be able to sue the government but not the telecoms. If they find out.

~~~~~~~~~

More ruminations

In some ways this a very pragmatic bill, similar to legalizing prostitution or buying and selling pollution credits. Try this analogy. Little Gerogie has been caught with his hand in the cookie jar before dinner time and now has no appetite for the bill of rights. He doesn’t eat the cookies himself, he just gives them to his friends because he doesn’t have a clue what to do about 9/11 and he thinks if they have the cookies they will be distracted and will think he’ s doing something.

Mommy and Daddy are quite busy working double shifts to pay for everything. For instance they’re ten million short for the Denver convention, and they just don’t have the time and energy to do FISA, er cookies right. Besides, once Georgie is off to boarding school, he and his playmates won’t have the opportunity for cookies anymore. And the twins. Little Barack and Hillary both want to go to college, but they can only send one, so Mommy and Daddy are busy with that mess too. So instead of sending Georgie off to cookie boot camp, they want to stop little Georgie from putting his hand in the cookie jar in the first place until they can get him out of the house and have time to deal with it.

So here’s what they come up with. They exchange the cookies for muffins. Harder to get out of the jar without being noticed. Then they say it’s okay to eat as many muffins as possible before mealtime as long as you put a little check mark on the little chart next to the muffin jar. Of course you will have to explain later what you did with all those muffins and count them and so forth, but for now just take the muffins and let someone know you took them.

And if you’re out of the house and need a muffin really quick, here’s a dime for mad money, just have the attorney general call an emergency and you get more muffins as long as you keep putting a check in the box next to the jar.

Of course, now that it’s okay to eat before meals, we don’t want to know about all the friends you gave those cookies to before–I mean, that’s all legal now, so why get upset over something that was not okay before but is okay now.

Hope you don’t mind all the cholesterol–don’t get any arterial plaque or stroke out or anything, now, y’hear?