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Falkenrath on the NSA Call Records Program:
In today's Washington Post, Richard Falkenrath defends the NSA call records program. He has this discussion of its legality:
  There are, of course, strict legal limits on the ability of federal agencies such as the NSA to compel the provision of domestic information or to collect it secretly. The USA Today story, however, alleges that three telecommunications companies — AT&T, Verizon and BellSouth — provided it voluntarily. How else could one company (Qwest) decline to provide the information? Since there is no prohibition against federal agencies receiving voluntarily provided business records relating to their responsibilities, it appears that the NSA's alleged receipt and retention of such information is perfectly legal.
  The three companies reported to have supplied telephone records to the NSA also appear to be acting lawfully. The Telecommunications Act of 1934, as amended, generally prohibits the release of "individually identifiable customer proprietary network information" except under force of law or with the approval of the customer. But, according to USA Today, the telephone records voluntarily provided to the NSA had been anonymized. In addition, the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them. So it would appear that the companies have been acting not just in the public interest, but also within the law and without encroaching on the privacy of any of their customers.
  Three quick thoughts in response, taking these points in turn:

  1. I think it's right that the NSA did not act unlawfully by receiving and retaining the records. It may be a different picture if, as some stories have reported, the NSA was doing more than just receiving and retaining. But receiving and retaining alone doesn't violate the law. If that's all the NSA did, the issue is the liability of the phone companies, not the liability of the NSA.

  2. I don't know much about the Communications Act of 1934, so I can't speak to this issue. Can others fill us in on whether this argument is correct? (Preferably with actual legal support rather than mere conclusions.)

  3. Falkenrath is just wrong about ECPA. He states that "the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them." No, it doesn't. There is no "government request" exception to the ban on disclosure.

  I gather the exception Falkenrath has in mind is 18 U.S.C. 2702(c)(1), which allows disclosure if the government has a valid court order or subpoena under 18 U.S.C. 2703. But that exception only applies when the government is compelling the disclosure with a valid court order or subpoena. (There is also a curious exception allowing the government to get the names and phone numbers of suspected telemarketers in telemarketing fraud cases, but that's obviously inapplicable here.) News reports indicate that the government did not have a court order or subpoena or other legal order. Given that, the exception does not apply.
SLS 1L:
I think it's right that the NSA did not act unlawfully by receiving and retaining the records. It may be a different picture if, as some stories have reported, the NSA was doing more than just receiving and retaining. But receiving and retaining alone doesn't violate the law. If that's all the NSA did, the issue is the liability of the phone companies, not the liabiliy of the NSA.
The companies didn't spontaneously hand over their records out of a desire to help secure American national security. The NSA must have at least solicited the records, not just received and retained them. This 1L who knows nothing about national security law is interested in your thoughts on the following questions:

1) Did the NSA's soliticiatation of the records violate the law?
2) Was the companies' decision to release the records at the NSA's request state action? If so, what are the implications?
5.13.2006 2:05pm
Refugee (mail) (www):
Do the service contracts have anything to say about this? When I read mine, I rather got the impression that the phone companies could do anything they want and had no responsibilities.
5.13.2006 2:18pm
SLS 1L:
As long as we're talking about the phone companies' liability, I see that Verizon, at least, appears to have violated its own privacy policy:
Verizon enables customers to control how and if Verizon discloses individual information about them to other persons or entities, except as required by law or to protect the safety of customers, employees or property.
Since diclosure was not required by law, everything hinges on whether this is "individual information" and whether disclosure to the NSA is "required to protect the safety. . ." under the meaning of the contract.
Subject to legal and safety exceptions, Verizon will share individual customer information only with persons or entities outside the company when the customer has consented, or when we have advised the customer of the opportunity to "opt-out" (to choose not to have the information disclosed).
The policy lists various exceptions: M&A/sale of Verizon, credit bureaus, collection agencies, and where otherwise required by law. "The NSA wants the information" is not on the list.
5.13.2006 2:26pm
Blogis (mail):
The issue is ACCESS to the NSA database and new DIA intelligence computer- DoDIIS conference.

Plame could have looked anybody up and now they are integrating CIA analysts at DIA.
5.13.2006 2:32pm
dk:
The President, who is responsible for what the NSA does, should say, loud and clear "My sworn duty is to protect my people. If what I do doesn't suit the New York Times (or Arlen Specter), SUE ME; or better yet, next time elect a President who sees it otherwise."
5.13.2006 2:53pm
Alexandra (mail):
DK--You are mistaken. The president does not swear to protect "the people"--and in fact has managed to kill them off by the thousands in Iraq. Instead, he swears to protect the CONSTITUTION (see below to refresh your memory of sixth grade social studies). And that is expressly what he is not following.

Presidential oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
5.13.2006 3:01pm
SLS 1L:
dk - USA Today broke the story, not the NYT. Since your argument is mostly based on Times-bashing, try again.
5.13.2006 3:09pm
I.I (www):
I'd like to point out again that if it was illegal for the phone companies to supply the records, then the NSA, by making the request, was soliciting an illegal activity.
5.13.2006 3:24pm
The Original TS (mail):
Something has to be said about the real-life civil liberties implications of this. I hope Orin or Eugene will do a post on this as it really deserves to be its own topic.

Many people are defending this program on the theory that the government is using this information to identify a terrorist's associates once they have identified a terrorist. This, however, does not appear to be what the government and the NSA have in mind. If that's all they wanted to do, the FBI could simply make a legal request for a terrorist's phone records once the terrorist had been identified.

This domestic program is something far more subtle and far more potentially dangerous. The NSA wants to use traffic analysis to identify potential terrorists. This is a similar concept to that used in airport screening. For example, buying a one-way ticket with cash at the airport on the day of your flight raises a red flag and gets you extra attention (and extra searching) as you pass through security. Similarly, the NSA thinks that they can identify particular call patterns that indicate terrorism. For example, perhaps a call to somewhere in North Africa or the Middle East followed by several short calls to New York and Washington imply that a terrorist attack is about to take place.

Is there anything wrong with this? Yes, there is — plenty. While catching terrorists is a laudable goal, the NSA's program is essentially an experiment. They don't know what, exactly, they ought to look for or how well it will work even under the best of conditions. They're making it up as they go along.

This has serious implications for everyone's civil liberties. When it comes to security, the government is not known for their rigorous adherence to scientific principles. They'd much rather have many false positives rather than even a few false negatives. After all, the FBI and CIA are still deeply attached to lie detectors. While that attitude might, just, pass muster when dealing with high-security internal issues at a government agency, it is completely unacceptable when dealing with an ordinary person's civil liberties.

This program does not exist in a vacuum. There are lots of other surveillance and anti-terrorism programs that we know nothing about. The programs we do know about are troubling enough. Consider, for example, the "no fly list." How one gets on this list is something of a mystery. How one gets off of it is even more of a mystery. It is a near-certainty that thousands, perhaps tens of thousands, of Americans will find themselves subject to considerable extra hassle — or even be denied boarding — each time they attempt to fly because some of their phone calls appear to fit some pattern that the NSA thinks indicates a potential link with terrorism.

The government, by its own adamant admission, is intent on linking all of its "anti-terrorism" information together. Call traffic monitoring is only one link in that chain. And chain it is. If we're not careful, we could find ourselves bound by that chain all too easily. Even putting aside any potential malicious uses, ala Nixon and the IRS, we ought to be deeply concerned about the potential for government ineptitude and human error. Here, in a different context, is a story from today's Washington Post describing just how such errors can occur. Don't imagine this can't — or doesn't — occur with terrorism "suspects" as well.

Innocent Man Mistaken For Registered Offender

How to strike the balance between security and liberty is a debate we need to have and we need to have it with full disclosure from the government. We cannot simply trust our leaders to get it right.
5.13.2006 3:24pm
Onion Reader (mail) (www):
If you think that the exception for telemarking fraud doesn't apply to al qaeda, see http://www.theonion.com/content/node/27716 .
5.13.2006 3:47pm
OrinKerr:
I.I,

I think you're missing something important: Solicitation requires that the act solicited is a crime. The disclosure of records may lead to civil liability, but is not a criminal offense under the Stored Communications Act.
5.13.2006 4:16pm
OrinKerr:
The Dog,

I am deleting your comment on civility grounds. Surely you can express your view (expressed many times before) without calling people "absolutely insane," "asinine," "foaming at the mouth," and their views "the height of absurdity," and the like, even if you think they are only "lefties."

Says the Mgmt.
5.13.2006 4:21pm
JunkYardLawDog (mail):
Orin I didn't call any specific person any of those names, so I am at a loss as to your comments above. However, its your sandbox, and you are free to censor any thoughts and expressions you don't like, whether such censorship is justified or not. I'll repost without the offending words that trample your refined and delicate sensibilities.

Says the "Dog"
5.13.2006 4:30pm
JunkYardLawDog (mail):
To Original TS:

To paraphrase an EV post quoting somebody else:

The government's efforts to catch criminals and terrorists always results, to some, in the dark sky of tyranny descending upon America, but that falling sky only seems to actually land in the minds of a few lefties.

Right now, most people are far more concerned about what the ACLU and terrorists want to do to the government for trying to catch criminals and terrorists than they are about the government trying to catch criminals and terrorists.

When and if all this sky is falling hysteria ever results in anything more than an inconsequential, unfelt, unknown, unperceived, in *theory* only dimunition of our liberties, then the public will throw the bums out at the polls. However, as things stand now, a *theoretical* dimunition of liberty that is so minor and so unintrusive as to be completely unknown to and unfelt by the citizens in their daily lives is nothing more than fanatical counting of angels on the heads of pins at the potential expense of endangering the lives of our citizens and their children.

I know what side I come done on.

Its absolutely silly to be all [Censored By Orin Kerr] in the mouth over something so inconsequential, unnoticeable in our daily lives, and extremely minor.

In a world where: it is perfectly legal, apparently, for cell phone companies to sell anybody's phone records/call info to any Tom, Dick, or Harry who wants to buy them to get worked up over the government wanting to use non-peronalized call info as part of its arsenal against terrorists and criminals is just plain silly.

In a world where: you have to give all kinds of personal info, name, address, phone, email addresss, etc. in order to read a NYSlimes or USA Today article about how awful it is that the government might have anonymous info/call records it is the height of absurdity to worry about the government's meager efforts to use a phone log database to catch some criminals and terrorists.

In a world where: companies put rootkits and spyware on your computer without your permission to trace your activities on the internet and then sell this info to others, it is absolutely [Censored By Orin Kerr] to worry about the government trying to keep our children from being murdered by its use of non-personal call records.

In a world where: the IRS and SEC can search your home, papers, bank account transactions, etc. all WITHOUT A WARRANT it is absolutely [Censored By Orin Kerr] to be [Censored By Orin Kerr] at the mouth over the loss of liberty occassioned by the government having non-personal call records to keep your children from being melted to death while at school.

Says the "Dog"
5.13.2006 4:37pm
Apodaca:
The Dog posits
In a world where: it is perfectly legal, apparently, for cell phone companies to sell anybody's phone records/call info to any Tom, Dick, or Harry who wants to buy them
The Dog is inexplicably unaware, despite multiple references in earlier VC threads, of 47 USC 222, which says in relevant part
Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories.
Says the "United States Code"
5.13.2006 4:46pm
Apodaca:
Orin wrote:
Solicitation requires that the act solicited is a crime. The disclosure of records may lead to civil liability, but is not a criminal offense under the Stored Communications Act.
Ah, but the disclosure can -- if undertaken "willfully" -- be a crime under 47 USC 501 (as a violation of 47 USC 222). Add in 18 USC 2,
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal
and it's Instant Criminal Culpability.
5.13.2006 4:53pm
JunkYardLawDog (mail):
Apodaca,

I said, APPARENTLY, because as noted by another poster in this or a related thread there are companies who sell this information over the internet. That poster gave links to reports of how the phone records of General Wesley Clark's cell phone were purchased for less that $200.00.

Maybe there is more to 47 USC 222 and its applicability to cell phone records than you realize. Maybe these people selling this info over the internet are just sleazy criminals. They don't seem to think they are criminals however, its not some secret site in Albania or Bulgaria. Perhaps you should report them to the feds.

Says the "Dog"
5.13.2006 4:57pm
SLS 1L:
The Dog: those of us who don't like this program generally don't like the other things you've mentioned earlier. But the worst thing the New York Times can do to me is sell my personal info to telemarketers. The worst thing the government can do is throw me into prison in Guantanamo Bay and torture me.

The most serious things about recent revelations involving the NSA is their apparent illegality. The President's party has a majority in Congress: if he feels this kind of thing is necessary, he has no excuse for not asking Congress to change the law.
5.13.2006 5:02pm
byomtov (mail):
, the telephone records voluntarily provided to the NSA had been anonymized

Excuse me. This makes no sense. The only way to "anonymize" telephone records would be to remove the telephone numbers, which would pretty well eliminate any value the records have.

It would be like George Carlin's sportscaster routine.

"And now, here are the latest baseball scores:

5 to 2, 6 to 1, 4 to nothing."
5.13.2006 5:03pm
DaSarge (mail):
I think The Original TS is mistaken on one point. The sort of traffic analysis being used is hardly an experiment. On the contrary, it is a well developed art with its own branch of mathematics. It is also highly effective. The investigations after 9/11 &the British tube station bombings showed a lot of cell phone traffic that could have tipped people off if it had been seen before the event.

JunkYardLawDog has a good point, though perhaps a bit too strongly worded. [Can the IRS actually search my home without a warrant?] I do know the IRS can search my bank account without a warrant & that is bad enough. That is a real and serious intrusion in to my privacy & the utility to the gov't is relatively small. With traffic analysis of cell phone records, there is no intrusion in to a serious liberty interest & the effect on the citizen is less than trivial. On the other hand, the usefulness of the data is high and the risk (attack) deadly serious.

There is a certain unseriousness about some of the arguement here. Rome is burning and you're castigating Nero for an out-of-tune fiddle. If the Prez does not have the power to do telephone traffic analysis, just why is Congress fiddling around? Pass legislation making that power explicit. If traffic analysis shows patterns that are worrisome, then apply to an appropriate court for warrants. Why is this so hard?
5.13.2006 5:03pm
SLS 1L:
DeSarge: the government violating the law is not an "out-of-tune fiddle." If the President thinks it is necessary to do something illegal, he should get the law changed.
5.13.2006 5:14pm
JunkYardLawDog (mail):
SLS 1L, do you really think you are in danger of being jailed and sent to Guantanamo because the government has depersonalized phone log records?

Isn't that just as over the top and hyperbolic as when I use phrases like "melting our children". In fact I'd argue that the worry you expressed is less likely to happen and therefore more hyperbolic than my statements about "melting children".

My hyperbole is sometimes intended to be a mirror to the wild leaps of logic expressed by many here (many times expressed BTW Orin, but who's counting) that these extremely minor things represent the death of the constitution and the end of the country as we knew it.

Someone in this thread or a related thread posted that a more serious terrorist attack than 9/11 would mean the end of the country as we know it, because the people would demand draconian measures of protection as well as draconian retaliation. That poster understands. Its not the government's use of an anonymouse phone log that endangers you or anyone else. Its their failure to do this and many other things that would endanger you.

There are many millions of people in this country who would demand those who impeded the government's efforts to prevent terrorism be "purged" in some manner, if they felt these people helped cause their children to get incinerated in the blink of eye.

That's not something I want to see happen either to those who want to impede these rather modest and trivial invasions of liberty or the children of our citizens. See, that would *really* be the sky falling on our liberties, and its time to realize who is crying wolf and whom isn't.

Says the "Dog"
5.13.2006 5:20pm
DaSarge (mail):
"Depersonalized records."

It is in fact possible to easily "depersonalize" records and maintain their utility for traffic analysis, just as hospitals "depersonalize" medical charts for QA analysis. When the computer assembles the data, it substitutes a new unique alphanumeric phrase for each phone number. Traffic analysis could then be done.

I don't suppose, however, that is actually being done.
5.13.2006 5:32pm
JunkYardLawDog (mail):
SLS 1L, BTW, there has been no finding that anything the Executive Branch has done is illegal. There are plenty of legal scholars who say its all perfectly legal. No democrat in congress, save maybe one or two moonbats, has called for the end to any of these programs.

Just because you say its illegal or some talking head says its illegal doesn't make it so.

Says the "Dog"
5.13.2006 5:32pm
OrinKerr:
The Dog,

You really should start your own blog. You have strong views, and you really need your own blog in which to state them. It will be a great blog, I'm sure. Please send me the link to your URL when you start it.

Best,
Orin
5.13.2006 5:48pm
Andrew J. Lazarus (mail):
The Junkyard Dog of tomorrow will be defending the mandatory telescreens against ACLU opposition, because they will help catch terrorists, protect our children, and the law-abiding have nothing to fear. With nanotechnology we can make the screens really small and physically unobtrusive, too.

Meanwhile, the claim that the phone records are anonymized presumably means that they have only numbers and not the associated names. Given the silliness of this argument, why should be bother looking at the rest of the original article? Just file it instead under "Legal bloviating of the Bush Administration in Defense of the Indefensible".
5.13.2006 5:48pm
OrinKerr:
Apodaca,

Isn't in clear that the disclosure wasn't "willful" under the Communications Act? It's hard to imagine a violation of federal law is willful when the government is urging you to take it. (Interesting questions of accomplice liability and mens rea, though.)
5.13.2006 5:50pm
Henry Schaffer (mail):
RMN or some other paranoid person, or even a stalker would love to have telephone traffic records. The records say a lot. They surely would have helped in developing an even better "enemies list".
5.13.2006 5:51pm
DaSarge (mail):
SLS 1L makes my point. Traffic analysis of phone records may -- or may not -- be illegal. That is utterly trivial in face of the threat & the value of the data obtained. One needs to have a sense of proportion and the willingness to put aside small matters. The first priority is the evil people trying to kill us.

And this is not a new issue; have a look at the directives FDR gave J. Edgar Hoover, for example.

Whining over trivial side issues is suicide.
5.13.2006 6:01pm
Kate1999 (mail):
DaSarge,

So do you think we should a) change the law to make this illegal, or b) just go ahead and break all the laws that seem "trivial"?
5.13.2006 6:03pm
JunkYardLawDog (mail):
Orin, thank you for the kind words. I doubt a blog of my own could ever match the highly educated and informed discourse found here on EV's blog. The fact that there are so many well read legal minds here on both sides of most issues is what makes EV's blog such a great place to come. I like your posts and thoughtful analyses (even when I don't care for your conclusions) along with EV's and most of the other official posters here as well.

Most of the time I just read and learn without posting any comments of my own, as there are many great commenters here on both sides of most issues.

It wouldn't be any fun to just play in my own blog where people always agreed with me.

I'm just a small town country lawyer. The poor product of free government primary and secondary schools, who had poor uneducated parents. I doubt I could offer much in a blog solely of my own, and certainly couldn't hope to keep up with the many great minds and products of elite educations that are so common here.

However, the sincere and heartfelt encouragement of a down to earth regular joe like yourself is greatly appreciated.

Says the "Dog"
5.13.2006 6:22pm
kelvin mccabe (mail):
If the program is on the up and up why couldn't qwest get a legal opinion of the same so they would participate instead of refuse? - - the NSA's refusal to get their request reviewed and the reason they wouldnt even try (We didnt think FISA would go for it) says everything i need to hear about whether its "legal" or doesn't expose the telecom companies to possible liability in the civil/consumer arena.

You guys are also leaving out some important statutes in this debate, especially the stored communications act. 18 USC sec. 2702 et al:

§ 2702. Voluntary disclosure of customer communications or records


(a) Prohibitions.--Except as provided in subsection (b)--

(1) a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service; and


(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service--

(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;


(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing; and
(3) a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.


You get the idea.
5.13.2006 6:38pm
Apodaca:
Orin asks,
Isn't in clear that the disclosure wasn't "willful" under the Communications Act? It's hard to imagine a violation of federal law is willful when the government is urging you to take it.
I don't find it hard at all. Randy Cunningham urged Mitch Wade to pay him exorbitant bribes, for which he now proudly owns a felony record.

Obviously, there are some due process problems if the cops or a prosecutor have induced you to engage in certain conduct (see Marty Lederman's comments), but I think we have materially different facts here. For one thing, the telcos sure do have a lot of lawyers capable of reading the statutes and forming their own independent legal opinions, so it seems pretty weak to me to claim that they reasonably relied on assurances from NSA.
5.13.2006 7:05pm
Apodaca:
Says the "Dog":
My hyperbole is sometimes intended to be a mirror to the wild leaps of logic expressed by many here [...] that these extremely minor things represent the death of the constitution and the end of the country as we knew it.
Says the "Brandeis":
The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
Discuss.
5.13.2006 7:12pm
JunkYardLawDog (mail):
Apodaca,

But who are the the men of zeal without understanding. Are they the chiken littles running around talking about the sky is falling and worrying about being shipped off to guantanamo because the government has a non-personalized phone log of trivial consequence and effect on people's lives?

I think that is the question posed by my statements in your first quote.


Its great to be able to look-up quotes. Understanding and applying them to the facts at hand can be a bit harder. I see lots of people of zeal around on the left. I really liked DeSarge's quote about arguing over whether Nero's fiddle was in tune. I had a similar one about all the zealouts worrying about the number of Angels on the head of a pin.

Brandeis is quite right. I often say "God save us from the do-gooders". They are usually the zealouts threatening my liberty without understanding.

Says the "Dog"
5.13.2006 7:24pm
dk:
I know what the oath says. But I WANT the President to protect my children and grandchildren; the pettifoggers who post here sure won't do it.
5.13.2006 7:39pm
DaSarge (mail):
18 USC sec. 2702(a)(1) "the contents of a communication"

Isn't that the issue? The "contents" of the communication is the conversation; to the computer it is data. But the phone companies did not turn over the conversations (data). They turned over the metadata -- the envelope, as it were. As I read the statute quoted here, I see no violation.
5.13.2006 7:54pm
Just an Observer:
DaSarge,

The non-content metadata you describe in covered by 18 USC 2702(a)(3):

a provider of remote computing service or electronic communication service to the public shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications covered by paragraph (1) or (2)) to any governmental entity.
5.13.2006 8:01pm
Rob McNickle (mail) (www):
You guys should all read 18 USC 2709, which is titled-

Counterintelligence access to telephone toll and transactional records.

and appears to authorize the release of records that the NSA reportedly received, if the FBI Director or his designee requested it.
5.13.2006 8:13pm
DaSarge (mail):
Just an Observer:

You probably have me, but let me try to split hairs. §(a)(3) refers to info about a subscriber or customer -- not the metadata of a telephone conversation. If the telecom withholds the customer name &profile, it seems to me this section is not violated.
5.13.2006 8:13pm
DaSarge (mail):
Rob McN:

I made that point responding to an earlier post on this issue (just scroll down a bit). Someone shot me down on that one. That said, if that is really the issue, one must wonder if somewhere if that request is lurking somewhere conveniently unmentioned by the leakers at the CIA.
5.13.2006 8:18pm
Just an Observer:
DaSarge: You probably have me, but let me try to split hairs. §(a)(3) refers to info about a subscriber or customer -- not the metadata of a telephone conversation. If the telecom withholds the customer name &profile, it seems to me this section is not violated.

Nothing in the language of that section says it applies only to entire records containing all the elements you named; quite the contrary. Even without a name, it remains "other information pertaining to a subscriber to or customer."
5.13.2006 8:47pm
markm (mail):
It is in fact possible to easily "depersonalize" records and maintain their utility for traffic analysis, just as hospitals "depersonalize" medical charts for QA analysis. When the computer assembles the data, it substitutes a new unique alphanumeric phrase for each phone number. Traffic analysis could then be done.

There are two ways to do this substitution: Use a huge lookup table with all the telephone numbers in the USA (or possibly the world) on one side and random numbers on the other, or to use an encryption algorithm to transform each number as it is read from the records. I'm sure they didn't use the lookup table - it would take too long. Nor is it likely that they used an encryption algorithm that takes too long to compute, such as public key encryption with large keys. So I strongly suspect that, if they did anything, they used an encryption algorithm that's at least theoretically within the NSA's capability to crack.
5.13.2006 9:22pm
DaSarge (mail):
Just an Observer:

Nothing in the language of that section says it applies only to entire records containing all the elements you named; quite the contrary. Even without a name, it remains "other information pertaining to a subscriber to or customer."


Doesn't the information have to pertain to the subscriber or customer? We are talking about metadata pertaining to the message, i.e., pertaining to the phone conversation, not the customer. These are two separate & distinct datasets.

And this is only relevant if the AG or his designee (the counterintel Dep. AG, I am sure) did not make the request.
5.13.2006 10:15pm
Grover Gardner (mail):
Two things:

First, something I'm not clear on, perhaps someone can suggest an answer. NSA examines all these phone records looking for patterns. What happens when they find a pattern they are seeking? Do they then identify the caller(s) and investigate to see if they have terrorist links or are engaging in suspicious activity?

Second, I think JunkYardDog and some others are missing the bigger picture. With every new "leak" about this administration's activities, the sense of "creep" into areas of dubious legality grows ever stronger. This is an administration that DOES NOT LIKE OVERSIGHT. This is clear to me, not just from the NSA revelations, but from numerous friends and acquaintances who work in various areas of the government. The blank checks for war expenditures, the President's "signing statements," the deliberate undermining of various regulatory agencies, the alteration of scientific research--it is a very disturbing pattern. I don't care of you are Republican or Democrat, liberal or conservative. If you are not concerned about this administration's attitudes toward our legal system and our process of checks and balances, IMHO you most certainly should be. It doesn't matter if we're fighting a war, or who the enemy is, or who you think the President is protecting by his actions. These are very, very bad precedents.
5.13.2006 10:41pm
John Lederer (mail):
Am I reading the statute correctly?

The phone company can hand this data over to anyone [2702(c)(5))] --except the government?
5.13.2006 10:48pm
John Lederer (mail):
Read the EFF complaint starting at paragraph 50:

http://www.eff.org/legal/cases/att/att-complaint.pdf

That implies that NSA is getting from AT&T not the ra3w information, but the results of database searches ( presumably without names). That corresponds with the reports that NSA's own huge database effort, Trailblazer, is way behind schedule and way over budget.

Does it change the legal position if what NSA is getting from At&T is say, all phone numbers from Area Code 212 that called or were called from Hamburg, on or about September 11th?.
5.13.2006 11:07pm
Just an Observer:
DaSarge: Doesn't the information have to pertain to the subscriber or customer?

I think it is unarguable that the phone numbers and times for each customer's phone calls pertain to that customer. I can't imagine that a judge would rule that just because the customer's name field does not appear in each call-detail record that the rest of the data in the record does not pertain to such customer.

Any database analyst testifying as an expert surely would say that it was the phone number, not the name, that helped uniquely identify the call-detail record and link it to a customer's account in the telco's database. In fact, the name is almost certainly stored in a separate relational table.
5.14.2006 12:42am
Just an Observer:
John Lederer: The phone company can hand this data over to anyone [2702(c)(5))] --except the government?

As far as this federal privacy statute goes, that seems to me to be the case. It is obvious that congressional intent was to prevent the phone companies from populating such databases built for government entities, even on a more limited scale, and the method was to bind the companies by this language.

The companies may also be bound by the Communications Act, 47 USC 222, to treat such records as confidential. And they have contractual obligations with regard to their customers, typically stated in a Privacy Statement and the Terms and Conditions, that affect their ability to distribute the data to third parties.

There seems to be a rapidly-spreading piece of misinformation in certain areas of the blogoshere that all this data is readily available through legitimate commercial channels. That is not the case, although there do seem to be private-sector abuses and even fraud. For example, see this consumer warning from Sprint/NEXTEL.
5.14.2006 1:00am
SLS 1L:
Just an observer: see, e.g., reversephonedirectory.com, which is free and 100% legitimate as far as I can tell. The companies selling cell phone records are more sketch.
5.14.2006 1:21am
Jim T:

You are mistaken. The president does not swear to protect "the people"--and in fact has managed to kill them off by the thousands in Iraq. Instead, he swears to protect the CONSTITUTION (see below to refresh your memory of sixth grade social studies). And that is expressly what he is not following.

Presidential oath of office: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."


Maybe you should read the Constitution before talking about what duties the President has or has not sworn to perform. For example, the Preamble states in part:

"We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense... do ordain and establish this Constitution for the United States of America."

Sounds like there is a clear duty on the part of the President to "protect my people" to me.
5.14.2006 1:22am
Just an Observer:
SLS 1L,

Of course, reverse-directory information is legitimately available from open sources. (Which is what makes ludicrous Falkenrath's argument that the records NSA got were "anonymized." Relinking the phone numbers to the names is trivial.)

But the call-detail records are not available legitimately from open sources.
5.14.2006 1:40am
Lev:
Jean-François Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe
5.14.2006 1:40am
beezle (mail) (www):
Re: 18 USC 2709

My reading of that is the Dir. FBI would need to issue said
authorization for each and every customer. That's a
lot of paperwork to sign and file!
5.14.2006 1:48am
SLS 1L:
Just an Observer: I simply misunderstood you. Two market-based arguments have been running around the commentariat in the past few days:

1) The right argues that because much of this information is available on the market, we shouldn't worry about the government getting it.
2) The left argues that because of free reverse telephone directory services, the purported anonymity of the data is bunk.

I thought you were talking about #2, but you were talking about #1.
5.14.2006 2:06am
Just an Observer:
SLS 1L,

You are now correct about what I am saying. You would be wrong to infer I represent "the left." Rather, I represent "the facts."
5.14.2006 2:29am
David Maquera (mail) (www):
RESPONSE TO THE DOG: Before becoming a lawyer, I was a manager with a major wireless company. A customer's phone records are private. Period. Any employee disclosing such phone records to anyone else other than the customer without a court order is subject to immediate termination.

An employee cannot even disclose such records to the customer's spouse absent a court order. Furthermore, if a customer called my former company requesting their phone records (not every customer wants bill detail on the cell phone bill for personal reasons), then my employees would verify the customer's social security number, date of birth, drivers license number, home phone number, and home mailing address. Since it would not be difficult for a spouse to have such info handy, my employees would call the customer back at their verified contact number (usually the cellphone number) before mailing such records to the verified mailing address.

It is NOT, as you ridiculously posit, "pefectly legal for a cell phone company to sell a customer's cell phone records to anyone who wants to buy them."
5.14.2006 8:00am
Irensaga (mail):
Responding to the original post only.

You know what? That's nice and all. But honestly, I don't give a damn anymore what legal justifications this administration has for anything it does. Right about now, I'm mad enough that I wouldn't mind seeing the entire NSA scrapped (although when I calm down, I'll probably admit that's a touch drastic).

This whole administration is one massive trainwreck. George Bush is the teenager who has crashed three of the family vehicles and simply needs to have his car keys taken away. At this point, I'm almost seriously considering the advisability of removing all the President's "emergency powers." Remove the President's War Powers? It almost sounds pretty good right now.

I'm actually nostalgic about the days when the likes of Boss Tweed and greedy Congressional fatcats ran the country.

So I really don't care about the rationalizations for why it's OK that our current executive is screwing America.

Honestly, sometimes this blog reads like a College Republicans rally.
5.14.2006 11:18am
Irensaga (mail):
Sorry about the last line about "College Republicans."

It was an off-base comment. I'm just in a grumpy mood today.
5.14.2006 11:30am
TomCS:
Sorry if this appears to be mixing apples and ... .

There are two (civil) cases in the courts at the moment which have a possible cross reference to this argument, which, in addition to the warrant angle, seems to turn on the distinction between "data" (or "content") and "metadata" (or address or envelope details or other related data such as marketing data). Both as it happens involve Apple Computer.

In California, an Apple subpoena asking for ISPs to release email traffic details in an attempt to identify alleged leakers of allegedly trade secret information to gossip sites is under appeal. The case has seen EFF and others bring in elements of journalistic privilege, etc, but the parallel is strange: both NSA and Apple are seeking to fish in metadata to enable them to identify individuals worthy of further investigation, in cases where they have a belief that a crime has been committed or is being comtemplated (whether theft of proprietary IP, or potential acts of violence). Apple got its subpoena/warrant, however. Part of the problem is I suspect simply that the possibilities have gone beyond what the most recent drafters of relevant legislation were ablle clearly to envisage.

That problem also arises in the Apple Computer/Apple Corp trademark case where a British judge has just ruled that Apple Computer did not act outside the terms of a "not very happily drafted" 1991 agreement covering the future scope of their respective and potentially overlapping trademarks. The agreement failed to foresee the detailed evolution of on-line music delivery software: the judge applied what looks to me like a classic common law approach to resolving the grey area of the 1991 agreement. (The judgement is available at http://www.timesonline.co.uk/article/0,,200-2170977.html)

Is this a broader issue for democracies and their legal systems? Without heading for apocalyptic fantasies about technology overpowering the human race, the speed of change does mean that we can expect a succession of situations where the best efforts of legislators to cover all the bases, particularly in the area of private citizens' rights, fail to last a decade. From this and similar discussions, it doesn't look as if reliance on the US written constitution offers timely or reliable defence against the incursion of government agencies (or marketing agencies) on the back of new technological possibilities. Particularly with a president relying on emergency "war" powers, but I don't imagine the NSA will willingly suspend either of its controversial programs once the war on terror is declared won.

What to do? Would I simply annoy the mainstream contributors to this blog if I suggested that the judges need to be encouraged back to a more "common law", common sense, and less constitutional historicist tradition? If neither the constitution nor the legislature can be expected to keep pace with the changing world, that seems the only viable and up-to-date defence of personal freedoms.
5.14.2006 2:19pm
Smithy (mail) (www):
Falkenrath hits it out of the park with that Op-Ed.

One thing that was mentioned on Tom Maguire's blog is that this could be a good way to root out the leakers in the CIA. You've got to believe Dana Priest et al. are ready to give up Mary McCarthy et al. now that they know the NSA has a record of all their communication. That could be, in the end, what is most useful about this program -- keeping tabs on leakers and domestic enemies, as it were.
5.14.2006 3:34pm
Irensaga (mail):
Great Smithy.

They can start by "rooting out" Karl Rove and wiretapping Cheney's offices. Gotta get those "domestic enemies" after all.
5.14.2006 4:57pm
Medis:
Maybe it is just me, but I didn't understand this proposition by Orin in the comments above:

"It's hard to imagine a violation of federal law is willful when the government is urging you to take it."

Strictly speaking, of course, it would be a government agent urging you to take the action in question. And I don't see why a government agent urging you to violate a federal law necessarily renders that violation not willful.
5.14.2006 6:10pm
The Original TS (mail):
Mr. Dog, I'm afraid you're barking up the wrong tree. You should have addressed the last paragraph of my post.

How to strike the balance between security and liberty is a debate we need to have and we need to have it with full disclosure from the government. We cannot simply trust our leaders to get it right.

In this area, we should not trust this administration or any administration to decide what is "best" for us. If the administration wants to fight terrorism by doing something that is currently illegal, it needs to go to Congress and make its case for changing the law. If the administration thinks a law enacted by Congress unconstitutionally infringes on the Executive power, it needs to get that law tested in court -- and then abide by that decision. What the administration cannot do is whatever it thinks best regardless of what the law says and then keep any programs of dubious legality secret.

I do not buy for a minute the argument that having an open debate about these programs endangers national security. Learning about the NSA program that came to light back in December availed terrorists nothing. For all the terrorist knew -- or cared -- the justice department was listening in on millions of suspect calls and busily applying for FISA warrants within 48 hours.

Even if terrorists were to acquire some advantage from learning about these programs, that's the price we pay for living under our current system of government. To quote a phrase, "Our republic is a government of laws, not of men." The president it not entitled, ever, to simply ignore the law, nor encourage other to do so, when he finds the law inconvenient no matter how laudable the goal. If he is right and the law does need to be changed, he needs to convince Congress to change it. If he can't convince Congress to change the law, then he must humbly accept that decision and muddle through the best he can under the law as it exists.

The main and perhaps the only reason that these programs have been kept secret is that they are politically embarrassing. It is all very well to say that we can "throw the bums out at the polls" if they go too far and violate the law but it’s not a very useful check if governmental law-breaking is automatically classified in the name of "national security." As tempting as it may be for politicians, "national security" should never be a synonym for "political expediency." Doing so irredeemably corrupts the electoral system that is intended to be the ultimate check on the abuse of executive power.

I’m tired of hearing about the administration’s latest dubious program in drips, drabs and leaks. It makes me wonder, as it should any thinking person, just what else is out there. The government should put out its plan -- its whole plan -- and make its case for what laws need to be scrapped and what laws need to be implemented and let Congress and America in general debate it. Neither this administration nor any administration is wiser than the collective wisdom of the Congress, the courts and the American people and I’m tired of this administration acting as if it is.
5.14.2006 8:23pm
Anonymous Reader:
Original TS,

You are being unreasonable. First of all, no one knows for sure if any laws have been broken. Many brilliant legal minds haven't proven that allegation beyond a reasonable doubt. Secondly, you can't blame this situation on only the administration. Congress is and has been briefed on all of these secret programs and they too agree that they should continue and aren't violations of the law.

As for there being a balance between security and liberty, you're absolutely right. They will definitely shift back and forth over time depending on the proximity of the threat. But to say that all secret govt programs that are designed to protect us need to be out in the open is totally unreasonable and frankly, a bit frightening to hear. So you'd rather we tell these bad guys that exactly what we're doing so that they can do the opposite?

The partisian rhetoric is what makes this situation worse than what it actually is. Everyone knows or should know that leaks are bad. This article by Mark Steyn hits the nail on the head.

It's too easy to sit here on the sidelines and tell the police, the military, etc how to do it's job. But when you're actually the one sitting there making those life and death decisions knowing that if you don't make the prudent decision you will be held accountable for your failure, things become a bit clearer.

It's easy for us to boohoo perceived violations of civil liberties (yes, perceived since no one can say that they've been violated) when we haven't been attacked recently, but just try to think WHY that is. You can think that it's because they can't mount an attack and lack sophistication, etc, but you'd be fooling yourself if you don't think that the programs in place are having an affect on their ability to carry out any kind of attack.

Anonymous Reader
5.14.2006 10:22pm
Patrick:
"Right now, most people are far more concerned about what the ACLU and terrorists want to do to the government for trying to catch criminals and terrorists than they are about the government trying to catch criminals and terrorists."

It has now been reported that the 7/7/05 London bombing attacks were preceded by phone calls from one of the bomb plotters to certain numbers in Pakistan, apparently known to be associated with terrorists. See previous link to Mark Steyn column that says it all. So in England there is a hue and cry over the failure to connect the dots, the 9/11 commission lamented our failure to connect the dots ... and here we have a 'dot-connecting' program started in the wake of 9/11, and people are gnashing their teeth over it.

Damn straight people are more concerned with terrorism than with the illusory claims of 'right to privacy', when the information at hand is *not* even private information, it's rather impersonal business information at a corporate behemoth, far less personal and truly private than information the credit company, credit agency, and IRS has.

"The Dog: those of us who don't like this program generally don't like the other things you've mentioned earlier. But the worst thing the New York Times can do to me is sell my personal info to telemarketers. The worst thing the government can do is throw me into prison in Guantanamo Bay and torture me."

WRONG. The worse thing the New York Times can do is to publish classified information in ways to compromise national security programs, programs that are helping win the war on terror and catch terrorists. Nothing the Govt does to even our worst enemies compares with the death by beheading that the terrorists infliced on Danny Pearl, Nick Berg, (or for that matter the innocent Indonesian Catholic girls, beheaded by muslim extremists). ...

The CIA leakers and the NY Times(*) have compromised our national security in a real way that surely will cost the lives of future victims of terrorism, and those victims surely will suffer far more than any of the current resident of Club Gitmo.


(*) To those who insist the USA Today is the source, the Dec 24, 2005 NY Times reported on the same program with almost all the same details. It's a regurgitated story solely for the Hayden nomination. Puke.
5.15.2006 12:34am
Alcyoneus (mail):
There is no expectation of privacy over numbers dialed on a telephone. Moreover, the FISA statute specifically exempts "pen registers." The NSA program only collects telephone numbers and not identifying information about the telephone user.

The NSA program is most likely legal, very legal.
5.15.2006 2:08am
Ross Levatter (mail):
If it is "most likely legal, very legal" to have a government agency collect telephone numbers [but] not identifying information about the telephone user" would it also be legal for the government, taking advantage of its monopoly on first class mail, to collect information about all addresses every person in the country mailed envelopes to, though not identifying information about the mailer? It seems clear that vital information terrorists send by phone could be replaced, albeit not in so timely a fashion, by terrorists mailing materials back and forth. Would all defenders of this current program have any problem with the federal government reviewing all items mailed in this country?
5.15.2006 4:13am
Medis:
Alcyoneus,

FISA doesn't "exempt" pen registers. It provides for pen registers pursuant to a court order, which apparently did not occur here.
5.15.2006 7:03am
Smithy (mail) (www):
Would all defenders of this current program have any problem with the federal government reviewing all items mailed in this country?

If it prevented another 911, that would be a small price to pay. Heck, I'd be willing to have everyone wear the ankle bracelets prisoners out on furlough wear if it would help keep us safe.

A lot of you here underestimate the dangers we are facing. If it takes the government watching us at all times to keep us safe, then so be it.
5.15.2006 9:50am
DaSarge (mail):

Would all defenders of this current program have any problem with the federal government reviewing all items mailed in this country?


I have news for you. The Feds have been doing this for generations. The FBI can & does do traffic analysis of data gleaned from envelopes & mailing labels. They test for drug & explosive residue. They do all sorts of things like this. For generations & without squeeling from the NYT until now. I refer you again to FDR's memoranda to the Atty Gen (Justice Jackson).


I again plead for people to find some sense of proportion. The statutes cited here do not convince me the gov't has violated the law. Congress has been briefed on this for a long time & took no umbrage -- until the matter became public, which suggests staff counsel believes the program is kosher.

But if it is illegal, one must weigh that against the alternatives. This is an existential struggle. Motives & good intentions are important but not dispositive. If the gov't gets it right -- i.e., no attack -- using slightly bad methods, that is not perfect but good enough. There are a myriad of ways to mitigate the harm.

But if the gov't gets it wrong and a preventable catastrophe occurs, who the heck will care that the gov't's methods were pristine & its motives pure? If the statute has been violated it is a small matter & the sensible, adult thing to do is to fix the statute & carry on. As I said before, Rome is burning & all some on this thread care about is whether Nero's fiddle is in tune.

I am sorry this thread has devolved in to a partisan squall. The interesting issue is the statute, which seems to have been chucked over the side.
5.15.2006 10:24am
JunkYardLawDog (mail):
Well, I didn't think it would be possible here, but I think Smithy has recommendations that go to far for me. Ankle Bracelets would be an invasion of liberty that *IS* noticeable in the personal daily lives of individuals and is therefore a *real* as opposed to *theoretical* invasion of one's liberty. It is a lot more proper to be concerned about and be against *real* invasions of liberty (such as smithy's ankle bracelets) as opposed to getting one's panties all in a wad over phone log databases which amount to nothing more than an uninstrusive, deminimis, *theoretical* only invasion of liberty. In fact anyone who compares a non-personal, non-human analysis of a phone log database to ankle braclets doesn't understand the issues and as DeSarge so accurately points out lacks any sense of reasonable proportionality in their thinking on these issues or as Apodaca quoted from Brandeis are persons of Zeal without understanding.

To paraphrase Bush 41: Phone Logs GOOOODDDDD. Ankle Bracelets BBAAAAADDDDD.

On a somewhat unrelated note to ankle bracelets. While I have traditionally opposed national identity cards, I am beginning to warm to that idea. Not quite bracelets, but maybe will be needed. The sad part is those who oppose unintrusive methods of protecting and securing our freedom to remain alive, if they prevail in their arguing over the tune of Nero's fiddle (DeSarge), shall be primarily responsible for the more draconian measures that will follow after another attack.

DeSarge states thinks quite properly in his last post here, but I disagree that this matter can be divorced from politics. As I stated up thread this *is* a primarily a political matter and should be resolved at the polls and NOT in the courts.

Says the "Dog"
5.15.2006 11:25am
JunkYardLawDog (mail):
To The Original TS:

Mr. Dog, ..... You should have addressed the last paragraph of my post.

Mr. Dog? Thank you for the kind salutation. I'm not used to being treated in such a manner. (smile)

I thought my post which was nominally to you (the one where Orin censored some of my "color") did exactly address you desire to discuss things in your last paragraph. So I'll refer you to that. Also, there were a couple posts in response to this post by you from others that pretty much cover most of the things I would say in response so for the sake of avoiding duplications will just go with their responses.

Thanks,

Says the "Dog"

How to strike the balance between security and liberty is a debate we need to have and we need to have it with full disclosure from the government. We cannot simply trust our leaders to get it right.

In this area, we should not trust this administration or any administration to decide what is "best" for us. If the administration wants to fight terrorism by doing something that is currently illegal, it needs to go to Congress and make its case for changing the law. If the administration thinks a law enacted by Congress unconstitutionally infringes on the Executive power, it needs to get that law tested in court -- and then abide by that decision. What the administration cannot do is whatever it thinks best regardless of what the law says and then keep any programs of dubious legality secret.

I do not buy for a minute the argument that having an open debate about these programs endangers national security. Learning about the NSA program that came to light back in December availed terrorists nothing. For all the terrorist knew -- or cared -- the justice department was listening in on millions of suspect calls and busily applying for FISA warrants within 48 hours.

Even if terrorists were to acquire some advantage from learning about these programs, that's the price we pay for living under our current system of government. To quote a phrase, "Our republic is a government of laws, not of men." The president it not entitled, ever, to simply ignore the law, nor encourage other to do so, when he finds the law inconvenient no matter how laudable the goal. If he is right and the law does need to be changed, he needs to convince Congress to change it. If he can't convince Congress to change the law, then he must humbly accept that decision and muddle through the best he can under the law as it exists.

The main and perhaps the only reason that these programs have been kept secret is that they are politically embarrassing. It is all very well to say that we can "throw the bums out at the polls" if they go too far and violate the law but it’s not a very useful check if governmental law-breaking is automatically classified in the name of "national security." As tempting as it may be for politicians, "national security" should never be a synonym for "political expediency." Doing so irredeemably corrupts the electoral system that is intended to be the ultimate check on the abuse of executive power.

I’m tired of hearing about the administration’s latest dubious program in drips, drabs and leaks. It makes me wonder, as it should any thinking person, just what else is out there. The government should put out its plan -- its whole plan -- and make its case for what laws need to be scrapped and what laws need to be implemented and let Congress and America in general debate it. Neither this administration nor any administration is wiser than the collective wisdom of the Congress, the courts and the American people and I’m tired of this administration acting as if it is.
5.15.2006 11:38am
JunkYardLawDog (mail):
Ooops, forgot to delete the stuff quoted from "The Original TS's" post to which I replied that appears after my sig line.

Sorry,

Says the "Dog"
5.15.2006 11:42am
Apodaca:
DaSarge writes:
But if it is illegal, one must weigh that against the alternatives.
You mean amending the relevant statutes instead of violating them? That sounds so un-American.
5.15.2006 11:44am
Apodaca:
Quoth the Dog:
this *is* a primarily a political matter and should be resolved at the polls and NOT in the courts.
In other words, all that silly claptrap in Article I, section 7 of the US Constitution -- you know, votes by Congress to approve laws -- can be safely ignored.

Imagine my relief.
5.15.2006 11:49am
JunkYardLawDog (mail):
Just An Observer,

You are now correct about what I am saying. You would be wrong to infer I represent "the left." Rather, I represent "the facts."

Much more likely that you, like me and everyone else, represent your perceptions of what the facts are and your perceptions of what they mean, which may or may not be the *real* facts and their *real* meaning.


Says the "Dog"
5.15.2006 11:50am
Irensaga (mail):
Since when did the voting American have to apply a "beyond a reasonable doubt" standard before condemning his or her political leaders.

Maybe we need that standard if Bush et al are put on trial for specific crimes. But I don't need anyone to prove to me that Bush is acting illegally "beyond a reasonable doubt." I can pass judgment on him and call for his removal (or a censure) without any such strenuous standard. Certainly I don't have to wait until I have an airtight case before daring to disagree with him.

Smithy,

I would prefer another 9-11 over the kind of civil society Bush is advocating. Yes. With me and my own family in the skyscaper.

If we really value American liberties and freedoms, we have to be willing to make some sacrifices for their maintenance. We have to be willing to be martyrs.

The frightened rhetoric of "let's destroy what this country stands for in the name of 'security'" signifies the true cowards in our society.

A nation whose guiding light is fear, does not deserve to lead anyone. Neither does it deserve the loyalty of anyone.
5.15.2006 11:53am
JunkYardLawDog (mail):
Apodaca,

Your hyperbolic response reflects the continued lack of proportionality in your thinking that DeSarge refers to os accurately. Take a deep breath. The constitution still survives. If you don't like the Bush Administration's interpretation of his duly elected powers and duties then vote against him in the next election.

Says the "Dog"
5.15.2006 11:54am
JunkYardLawDog (mail):
Irensaga,

There are more choices available between ankle bracelets and putting yourself and your family under the next bomb. There are choices like phone log records analysis that can be conducted without having any effect whatsoever on your daily life and personal liberties.

Proportionality is today's secret word.

Says the "Dog"
5.15.2006 11:57am
Mr. X (www):
I expect a covert policy that, if Americans saw it on the front page of their newspaper, they'd say, "That makes sense."
-Ronald Reagan, March 4th, 1987

With the recent leaks, we're seeing it on the front page and it's not making sense. It appears clear that the President really doesn't care if it makes sense and doesn't care if it violates the law.
5.15.2006 12:56pm
Anonymous Reader:
Irensaga, Mr. X,

Please step away from the kool aid of conspiracy theories.

First of all, Irensaga, if you and your family want to die as martyrs because you feel that the govt can't do traffic analysis on phone calls, then please go right ahead. But you don't speak for the rest of the country or even a majority of the country. So you're telling me that if you knew someone was going to go to where you work and open fire on people and kill them, and you could have known about this because he emailed, called, or in some way communicated his desires to suspected terrorists, you wouldn't want to know about it? You'd be willing to put other people's lives at risk for your personal beliefs? Interesting...

Mr. X,

If the media did a better job of actually telling the truth as they know it (most of it is incomplete to begin with) and exactly what these programs do or don't do, then maybe more people would see the common sense approach that is being taken by the administration. Until they do, all people will think is the glaring headline "Bush spying your phone calls!" Come on! What does that mean to you? It's like publishing a headline "Police shooting people!" Is that what's really happening? Of course not!! But that's what sticks in people's mind and that's what sells copy.

Let's just all take a step back, relax, marinate on the incomplete information that we think we know, and comment like rational human beings. Sometimes the simple answer is the right answer.

Anonymous Reader
5.15.2006 1:48pm
Mr. X (www):
First of all, Irensaga, if you and your family want to die as martyrs because you feel that the govt can't do traffic analysis on phone calls, then please go right ahead.


So we now have a choice between allowing the Administration to spy on anything they want without obeying existing laws and dying as martyrs? Glad you could boil this whole thing down into a simple A or B choice.

If the media did a better job of actually telling the truth as they know it (most of it is incomplete to begin with) and exactly what these programs do or don't do, then maybe more people would see the common sense approach that is being taken by the administration. Until they do, all people will think is the glaring headline "Bush spying your phone calls!" Come on! What does that mean to you? It's like publishing a headline "Police shooting people!" Is that what's really happening? Of course not!! But that's what sticks in people's mind and that's what sells copy.


What we know from the media stories is that three phone companies gave the NSA databases containing the call records of millions of Americans. We also know that they refused to pursue either a FISA warrant for that request, nor even to seek an opinion from the Department of Justice on its legality.

If there's a controlling statute and the Administration refuses to abide by it, that's a problem for me. Your tolerance for lawlessness may vary.
5.15.2006 2:09pm
Anonymous Reader:
Mr. X,

I'm not saying that at all. Maybe I wasn't exactly clear, but my point is that if people who know about these programs feel that there is abuse taking place, they have an obligation to report it to the proper authorities. This vigilante leaking is ridiculous! They are putting lives at risk! If there was a problem, why didn't they use the inspector general or go to someone in Congress? Seems awfully convienent to hide behind the cloak of a journalism and throw allegations around.

Anonymous Reader
5.15.2006 2:35pm
Irensaga (mail):
I don't care about being in the majority. I care about being right.

Secondly, of course there's all shades of grey in between free society and totalitarianism. I'm saying that, taking Bush and Co.'s overall agenda I'd prefer less security and more of an open society.

People throw the word "security" around like it's a sacred talismand that absolves one's sins or something.

There's nothing sacred about security. It's just another value, like any other. And right now, I think the way it's being used by some is, frankly, cowardly.

I don't ascribe to conspiracy theories (name-calling aside). I don't believe that Bush lied about Iraq, I don't believe that the Pentagon was hit by a missile, and I ascribe to the generally accepted stories of why the World Trade Center collapsed. And no, I don't think Bush "is Hitler." He's not nuts enough, or competent enough for that, even if he were so inclined.

Maybe Mussolini ...
5.15.2006 10:08pm
ENGR:
As with the foriegn intelligence wiretaps, people are jumping to conclusions, legal judgement, before understanding the facts. What a waste of time.

But for shits-and-grins:

As markm describes, the phone company could associate a totally unrelated number/code with a list of called/recieved phone numbers to the NSA. Only the phone company would know the relationship with the base phone number. The government would do a pattern analysis on these calls. If a suspicious pattern presented itself, they would go to a judge to get a warrent to tap the base phone.

No foul.
5.15.2006 10:16pm
Irensaga (mail):
Anyone with an internet connection and $50 can find out who the parties on both ends of the phone conversation were, given only the phone numbers involved and date and time.

Democratic senators better start laying off on those 1-900 numbers.
5.16.2006 9:55am
ENGR:
Irensaga,

Only the phone company would have the base phone number. So the NSA would only have incoming/outgoing numbers, not the base number (number in question). The NSA could only get the base phone number if they obtained a warrant from a judge whom was adequately persuaded by their analysis of incoming/outgoing numbers.
5.16.2006 10:59am