Do_I_Not_Like_That wrote:

 Frazzled wrote:
There is a substantial difference between MI6 - I mean the NSA - and the FBI. I have no problem if the spyboys collect every phone call, text, and email on the planet in surveillance of spies and terrorists.

However, to use that against US citizens for tax or criminal purposes requires a warrant granted by a judge and probable cause of a crime being committed. Except for Fox News of course, because they are Evil with an E.

Slightly off topic, but isn't that DNA thing I mentioned a clear violation of the 4th? I thought Obama took an oath in front of millions to defend things like the 4th!

 Do_I_Not_Like_That wrote:

 Frazzled wrote:
There is a substantial difference between MI6 - I mean the NSA - and the FBI. I have no problem if the spyboys collect every phone call, text, and email on the planet in surveillance of spies and terrorists.

However, to use that against US citizens for tax or criminal purposes requires a warrant granted by a judge and probable cause of a crime being committed. Except for Fox News of course, because they are Evil with an E.

Slightly off topic, but isn't that DNA thing I mentioned a clear violation of the 4th? I thought Obama took an oath in front of millions to defend things like the 4th!

 whembly wrote:

 Do_I_Not_Like_That wrote:

 Frazzled wrote:
There is a substantial difference between MI6 - I mean the NSA - and the FBI. I have no problem if the spyboys collect every phone call, text, and email on the planet in surveillance of spies and terrorists.

However, to use that against US citizens for tax or criminal purposes requires a warrant granted by a judge and probable cause of a crime being committed. Except for Fox News of course, because they are Evil with an E.

Slightly off topic, but isn't that DNA thing I mentioned a clear violation of the 4th? I thought Obama took an oath in front of millions to defend things like the 4th!

Gut feeling... maybe.

The 4th protects against unreasonable searches. It's get murky because they're doing this at the time of arrest (same thing when they do finger-prints).

The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track one target or trace a whole network of associates, according to a top-secret document obtained by The Washington Post.

The program, code-named PRISM, has not been made public until now. It may be the first of its kind. The NSA prides itself on stealing secrets and breaking codes, and it is accustomed to corporate partnerships that help it divert data traffic or sidestep barriers. But there has never been a Google or Facebook before, and it is unlikely that there are richer troves of valuable intelligence than the ones in Silicon Valley.

Equally unusual is the way the NSA extracts what it wants, according to the document: “Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.”

PRISM was launched from the ashes of President George W. Bush’s secret program of warrantless domestic surveillance in 2007, after news media disclosures, lawsuits and the Foreign Intelligence Surveillance Court forced the president to look for new authority.

Congress obliged with the Protect America Act in 2007 and the FISA Amendments Act of 2008, which immunized private companies that cooperated voluntarily with U.S. intelligence collection. PRISM recruited its first partner, Microsoft, and began six years of rapidly growing collection beneath the surface of a roiling national debate on surveillance and privacy. Late last year, when critics in Congress sought changes in the FISA Amendments Act, the only lawmakers who knew about PRISM were bound by oaths of office to hold their tongues.

The court-approved program is focused on foreign communications traffic, which often flows through U.S. servers even when sent from one overseas location to another. Between 2004 and 2007, Bush administration lawyers persuaded federal FISA judges to issue surveillance orders in a fundamentally new form. Until then the government had to show probable cause that a particular “target” and “facility” were both connected to terrorism or espionage.

In four new orders, which remain classified, the court defined massive data sets as “facilities” and agreed to occasionally certify that the government had reasonable procedures in place to minimize collection of “U.S. persons” data without a warrant.

Several companies contacted by The Post said they had no knowledge of the program and responded only to individual requests for information.

“We do not provide any government organization with direct access to Facebook servers,” said Joe Sullivan, chief security officer for Facebook. “When Facebook is asked for data or information about specific individuals, we carefully scrutinize any such request for compliance with all applicable laws, and provide information only to the extent required by law.”

“We have never heard of PRISM,” an Apple spokesman said. “We do not provide any government agency with direct access to our servers, and any government agency requesting customer data must get a court order.”

Government officials and the document itself made clear that the NSA regarded the identities of its private partners as PRISM’s most sensitive secret, fearing that they would withdraw from the program if exposed. “98 percent of PRISM production is based on Yahoo, Google and Microsoft; we need to make sure we don’t harm these sources,” the briefing’s author wrote in his speaker’s notes.

An internal presentation of 41 briefing slides on PRISM, dated April 2013 and intended for senior analysts in the NSA’s Signals Intelligence Directorate, described the new tool as the most prolific contributor to the President’s Daily Brief, which cited PRISM data in 1,477 articles last year. According to the slides and other supporting materials obtained by The Post, “NSA reporting increasingly relies on PRISM” as its leading source of raw material, accounting for nearly 1 in 7 intelligence reports.

That is a remarkable figure in an agency that measures annual intake in the trillions of communications. It is all the more striking because the NSA, whose lawful mission is foreign intelligence, is reaching deep inside the machinery of American companies that host hundreds of millions of American-held accounts on American soil.

The technology companies, which knowingly participate in PRISM operations, include most of the dominant global players of Silicon Valley, according to the document. They are listed on a roster that bears their logos in order of entry into the program: “Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.” PalTalk, although much smaller, has hosted significant traffic during the Arab Spring and in the ongoing Syrian civil war.

Dropbox, the cloud storage and synchronization service, is described as “coming soon.”

Government officials declined to comment for this article.

“I would just push back on the idea that the court has signed off on it, so why worry?” said Jamil Jaffer, deputy legal director of the American Civil Liberties Union. “This is a court that meets in secret, allows only the government to appear before it, and publishes almost none of its opinions. It has never been an effective check on government.”

Roots in the ’70s

PRISM is an heir, in one sense, to a history of intelligence alliances with as many as 100 trusted U.S. companies since the 1970s. The NSA calls these Special Source Operations, and PRISM falls under that rubric.

The Silicon Valley operation works alongside a parallel program, code-named BLARNEY, that gathers up “metadata” — address packets, device signatures and the like — as it streams past choke points along the backbone of the Internet. BLARNEY’s top-secret program summary, set down alongside a cartoon insignia of a shamrock and a leprechaun hat, describes it as “an ongoing collection program that leverages IC [intelligence community] and commercial partnerships to gain access and exploit foreign intelligence obtained from global networks.”

But the PRISM program appears to more nearly resemble the most controversial of the warrantless surveillance orders issued by President George W. Bush after the al-Qaeda attacks of Sept. 11, 2001. Its history, in which President Obama presided over exponential growth in a program that candidate Obama criticized, shows how fundamentally surveillance law and practice have shifted away from individual suspicion in favor of systematic, mass collection techniques.

The PRISM program is not a dragnet, exactly. From inside a company’s data stream the NSA is capable of pulling out anything it likes, but under current rules the agency does not try to collect it all.

Analysts who use the system from a Web portal at Fort Meade key in “selectors,” or search terms, that are designed to produce at least 51 percent confidence in a target’s “foreignness.” That is not a very stringent test. Training materials obtained by The Post instruct new analysts to submit accidentally collected U.S. content for a quarterly report but add that “it’s nothing to worry about.”

Even when the system works just as advertised, with no American singled out for targeting, the NSA routinely collects a great deal of American content. That is described as “incidental,” and it is inherent in contact chaining, one of the basic tools of the trade. To collect on a suspected spy or foreign terrorist means, at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two “hops” out from their target, which increases “incidental collection” exponentially. The same math explains the aphorism, from the John Guare play, that no one is more than “six degrees of separation” from any other person.

Sens. Ron Wyden (D-Ore.) and Mark Udall (D-Colo.), who had classified knowledge of the program as members of the Senate Intelligence Committee, were unable to speak of it when they warned in a Dec. 27, 2012, floor debate that the FISA Amendments Act had what both of them called a “back-door search loophole” for the content of innocent Americans who were swept up in a search for someone else.

“As it is written, there is nothing to prohibit the intelligence community from searching through a pile of communications, which may have been incidentally or accidentally been collected without a warrant, to deliberately search for the phone calls or e-mails of specific Americans.”

A ‘directive’

In exchange for immunity from lawsuits, companies such as Yahoo and AOL are obliged to accept a “directive” from the attorney general and the director of national intelligence to open their servers to the FBI’s Data Intercept Technology Unit, which handles liaison to U.S. companies from the NSA. In 2008, Congress gave the Justice Department authority for a secret order from the Foreign Surveillance Intelligence Court to compel a reluctant company “to comply.”

In practice, there is room for a company to maneuver, delay or resist. When a clandestine intelligence program meets a highly regulated industry, said a lawyer with experience in bridging the gaps, neither side wants to risk a public fight. The engineering problems are so immense, in systems of such complexity and frequent change, that the FBI and NSA would be hard pressed to build in back doors without active help from each company.

Apple demonstrated that resistance is possible when it held out for more than five years, for reasons unknown, after Microsoft became PRISM’s first corporate partner in May 2007. Twitter, which has cultivated a reputation for aggressive defense of its users’ privacy, is still conspicuous by its absence from the list of “private sector partners.”

“Google cares deeply about the security of our users’ data,” a company spokesman said. “We disclose user data to government in accordance with the law, and we review all such requests carefully. From time to time, people allege that we have created a government ‘back door’ into our systems, but Google does not have a ‘back door’ for the government to access private user data.”

Like market researchers, but with far more privileged access, collection managers in the NSA’s Special Source Operations group, which oversees the PRISM program, are drawn to the wealth of information about their subjects in online accounts. For much the same reason, civil libertarians and some ordinary users may be troubled by the menu available to analysts who hold the required clearances to “task” the PRISM system.

There has been “continued exponential growth in tasking to Facebook and Skype,” according to the PRISM slides. With a few clicks and an affirmation that the subject is believed to be engaged in terrorism, espionage or nuclear proliferation, an analyst obtains full access to Facebook’s “extensive search and surveillance capabilities against the variety of online social networking services.”

According to a separate “User’s Guide for PRISM Skype Collection,” that service can be monitored for audio when one end of the call is a conventional telephone and for any combination of “audio, video, chat, and file transfers” when Skype users connect by computer alone. Google’s offerings include Gmail, voice and video chat, Google Drive files, photo libraries, and live surveillance of search terms.

Firsthand experience with these systems, and horror at their capabilities, is what drove a career intelligence officer to provide PowerPoint slides about PRISM and supporting materials to The Washington Post in order to expose what he believes to be a gross intrusion on privacy. “They quite literally can watch your ideas form as you type,” the officer said.

The Washington Post has published a remarkable report showing that the National Security Agency and the Federal Bureau of Investigation have been monitoring the central servers of major Internet companies -- Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple -- and "extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time."

Why did a government source leak information of this program, dubbed "PRISM," to the Post? What follows is perhaps the most chilling paragraph I've read to date about U.S. government surveillance:

Firsthand experience with these systems, and horror at their capabilities, is what drove a career intelligence officer to provide PowerPoint slides about PRISM and supporting materials to The Washington Post in order to expose what he believes to be a gross intrusion on privacy. “They quite literally can watch your ideas form as you type,” the officer said.

In the wake of last night's Guardian report about the NSA's collection of Verizon phone user metadata, the New York Times editorial board argued that the Obama administration "has now lost all credibility" in defending its abuses of executive power. That was before the report about PRISM, which unlike the Verizon metadata, includes surveillance of user content.

“'They quite literally can watch your ideas form as you type,' the officer said."

If that doesn't make you uncomfortable, it should.

 Do_I_Not_Like_That wrote:
So, what are Americans going to do about this? Not a lot if the polls conducted by Al-Jazeera news are anything to go by. I was watching AJ news earlier, and according to their polls, most Americans they asked couldn't care less

 ironicsilence wrote:
ATT and Sprint have also been added to the list. I'm currently looking for an email provider to switch to that wont tell the government how many lolcats appear in my inbox every day

US spy chief James Clapper has strongly defended government surveillance programmes after revelations of phone records being collected and internet servers being tapped.

He said disclosure of a secret court document on phone record collection threatened "irreversible harm".

Revelations of an alleged programme to tap into servers of nine internet firms were "reprehensible", he said.

Internet firms deny giving government agents access to their servers.

The director of US national intelligence said he wanted to reassure Americans that the intelligence community was committed to respecting their civil liberties and privacy.

That report was followed by revelations in both the Washington Post and Guardian that US agencies tapped directly into the servers of nine internet firms to track people in a programme known as Prism.

The reports about Prism will raise fresh questions about how far the US government should encroach on citizens' privacy in the interests of national security.

The NSA confirmed that it had been secretly collecting millions of phone records. But Mr Clapper said the "unauthorized disclosure... threatens potentially long-lasting and irreversible harm to our ability to identify and respond to the many threats facing our nation".

The article omitted "key information" about the use of the records "to prevent terrorist attacks and the numerous safeguards that protect privacy and civil liberties".

He said reports about Prism contained "numerous inaccuracies". While admitting the government collected communications from internet firms, he said the policy only targets "non-US persons".

'Variety of threats'
Prism was reportedly developed in 2007 out of a programme of domestic surveillance without warrants that was set up by President George W Bush after the 9/11 attacks.

Prism reportedly does not collect user data, but is able to pull out material that matches a set of search terms.

Mr Clapper said the communications-collection programme was "designed to facilitate the acquisition of foreign intelligence information concerning non-US persons located outside the United States".

"It cannot be used to intentionally target any US citizen, any other US person, or anyone located within the United States," he added.

Mr Clapper said the programme, under Section 702 of the Foreign Intelligence Surveillance Act, was recently reauthorised by Congress after hearings and debate.

"Information collected under this program is among the most important and valuable foreign intelligence information we collect, and is used to protect our nation from a wide variety of threats," he added.

But while US citizens were not intended to be the targets of surveillance, the Washington Post says large quantities of content from Americans are nevertheless screened in order to track or learn more about the target.

The data gathered through Prism has grown to become a major contributor to the president's daily briefing and accounts for almost one in seven intelligence reports, it adds.

The Washington Post named the nine companies participating in the programme as Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube and Apple.

Microsoft said in a statement to the BBC that it only turned over customer data when given a legally binding order, and only complied with orders for specific accounts.

"If the government has a broader voluntary national security program to gather customer data we don't participate in it," Microsoft said.

Meanwhile, Yahoo, Apple and Facebook said they did not give the government direct access to their servers.

In a statement, Google said: "Google does not have a 'back door' for the government to access private user data."

On Wednesday, it emerged that the NSA was collecting the phone records of tens of millions of Americans, after the Guardian published a secret order for the Verizon phone company to hand over its records.

A senior congressman, House intelligence committee chairman Mike Rogers, told reporters that collecting Americans' phone records was legal, authorised by Congress and had not been abused by the Obama administration.

He also said it had prevented a "significant" attack on the US "within the past few years", but declined to offer more information.

The order requires Verizon - one of the largest phone companies in the US - to disclose to the NSA the metadata of all calls it processes, both domestic and international, in which at least one party is in the US.

Such metadata includes telephone numbers, calling card numbers, the serial numbers of phones used and the time and duration of calls. It does not include the content of a call or the callers' addresses or financial information.

As surveillance practices come under scrutiny in the US, a new system to monitor phone and internet connections in India is being criticised as "chilling" by New York-based group Human Rights Watch (HRW).

The Central Monitoring System (CMS) enables authorities to follow all online activities, phone calls text messages and social media conversations.

The Indian government said in December 2012 the system would "lawfully intercept internet and telephone services". But HRW says the system by-passes service providers in a country that has no privacy law to protect people from arbitrary intrusions.

In the UK on Wednesday, a committee of MPs criticised a decision to allow Chinese firms such as Huawei to become embedded in British network infrastructure without the knowledge and scrutiny of ministers.

Huawei - which denies close ties with the Chinese state - signed a 2005 telecoms deal with BT to supply equipment for a £10bn major network upgrade.

 whembly wrote:


FISA's original intent was FOREIGN communications.

 CptJake wrote:

 whembly wrote:


FISA's original intent was FOREIGN communications.

Kind of, but it only applied to communications where one or both ends originated within CONUS. FISA never applied to overseas collection.

 ironicsilence wrote:
this is actually the first time something has happened under Obama that I've wondered what the reaction would have been like if it was Bush in office, I remember the gak storm the warrentless wire taps and this seems worse

 ironicsilence wrote:
this is actually the first time something has happened under Obama that I've wondered what the reaction would have been like if it was Bush in office, I remember the gak storm the warrentless wire taps and this seems worse


Automatically Appended Next Post:
that obama press conference was a joke, so many thoughts on PRISM, find it funny that obama was all over the bush admin for these types of programs when he was first running for president, also find it funny that obama says he welcomes the debate on PRISM yet if he had his way no one would have ever known about it. I also liked Obama's comment about thinking the government should get to play a role in redefining what personal privacy means....

 Seaward wrote:
I finally got a chance to look at the slides, and...holy gak. Somebody's getting life in prison for this, if not getting shot.

 djones520 wrote:
Further details please?

 whembly wrote:
Here's what I'm struggling with...

If the FBI, via the NSA, already knows who’s talking to whom, why did the DOJ need to subpoena the AP’s phone records and get a search warrant for James Rosen’s e-mails? The only possible answer, I think, is admissibility in court. They can’t offer PRISM data as evidence (yet), so they have to go through traditional legal channels.

My head is hurting...

The (Illegal) Surveillance State Has Arrived
I’ve been taking a brief hiatus from blogging, but I had to come back for this one. And yes, this is a long one.

By now you all know what happened to James Rosen. Here’s a decent summary if you haven’t heard. But the short version is this. A long time ago, Rosen reported on a story based on a leak of information. Now, to leak classified information to a reporter is a crime. But it is not a crime to receive such leaks. Or until now, anyway. In an affidavit, the Obama administration decided that Rosen was likely a co-conspirator or aider and abettor based on little more than the fact Rosen received a leak. They even declared him a flight risk. So they got access to his emails, phone records, tracked his movements in and out of the State Department and even checked his parents’ phone records. And they did similar things to two other reporters. And the AP in an unrelated case.

Well, thanks to Glenn Greenwald we found out yesterday that we are all James Rosen now*:

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America's largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an "ongoing, daily basis" to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

...

While the order itself does not include either the contents of messages or the personal information of the subscriber of any particular cell number, its collection would allow the NSA to build easily a comprehensive picture of who any individual contacted, how and when, and possibly from where, retrospectively.

It is not known whether Verizon is the only cell-phone provider to be targeted with such an order, although previous reporting has suggested the NSA has collected cell records from all major mobile networks. It is also unclear from the leaked document whether the three-month order was a one-off, or the latest in a series of similar orders.

Do read the whole thing. As I said on Twitter, I disagree with him a lot but this is an extremely well-written and necessary report. Since he is an American at least by birth, I can say it is a patriotic thing he has done in this reporting.

So consider this. First, every call you have made to or from a Verizon cell phone has been collected. Consider the implications of that. If you called a clergyman, they know. If you called a psychiatrist, they know. If you called a gay bar, they know. If you called a phone sex line, they know. If you called your lawyer, they know.

Worse than that, they know where you are at least when you made that call. The Supreme Court recently stated that it violated the Fourth Amendment to track a person by GPS. Well, they tracked all of us.

For instance, if you went to church on a certain day and as is often the case you received a call while the minister was giving his sermon, they know you were in that church and are likely an adherent to that religion. I admit I don’t lay awake at night worried that someone will find out I am a Presbyterian who often goes to my wife’s Catholic church, but there is a historical reason for being concerned about the government identifying what faith a person belongs to.

The same applies if you were at a porn store when you received the call. Or a gay bar. Or just at a psychiatrist’s receiving help.

Or a political meeting. I don’t worry overly much about the government knowing about my politics (seriously, it’s not a secret), but that doesn’t mean no one ever has a right to keep their political associations secret. For instance, in NAACP v. Alabama (1958), under the banner of investigating possible communist infiltration of the NAACP, the state of Alabama asked for the NAACP to disclose its membership lists. The Supreme Court had long established the right to freely associate as an important First Amendment protection. In other words, the ability to gather together to advance your agenda is an important right. Where would we be if those who want to protect Constitutional Rights couldn’t gather together as the ACLU or the NRA? Or if those who wanted to advocate for women’s rights couldn’t form NOW? And it’s not limited associations with a political agenda: where would we be without the ability to form the Boy Scouts and the Girl Scouts?

And here, the Supreme Court quite wisely recognized that even if the state of Alabama had no intent to suppress the NAACP (right!), if the NAACP was forced to reveal who their members were, it might lead to the intimidation of those members and a chilling of new memberships. Or to put it plainly, the KKK might frakking kill them, and that might scare off new people from joining because they don’t want to be killed. So the NAACP was allowed to refuse to turn over that information.

Except now if you receive a call while at an NAACP meeting, the government will know you are a member. Admittedly the NAACP doesn’t have a lot to fear in relation to revealing its membership these days, but rights do not disappear just because the immediate danger they protect against had passed.

Or you consider this. You might hit a rough patch in your marriage. You might really consider divorce and so you secretly go to a divorce attorney. And then after considering it, you reconcile with your spouse.

But while you were at the lawyer’s office, you received a phone call from someone. So now the fact you were there is in a government database. And if your spouse should find out that you went to a divorce attorney, it might precipitate serious complications in your marriage.

And if you think that the data cannot be abused, consider this. Remember “Joe the Plumber?” The man asked then-candidate Obama a few questions about the tax code which led to these sound bites from Obama:


Notice, that Joe—full name Samuel Joseph Wurzelbacher—isn’t the issue in that clip. What Joe says doesn’t matter, except as showing what Obama is responding to. It’s what Obama said that matters. But that didn’t stop the left from attempting to destroy Wurzelbacher for having the temerity to question the Choosen One:

The director of an Ohio human services agency has been suspended for a month without pay and faces review by a county prosecutor for using confidential state databases to find personal information on "Joe the Plumber." She will also face review for using her state e-mail address to help Barack Obama's fundraising by identifying potential contributors and offering her own $2,500 donation.

Helen E. Jones-Kelley, head of Ohio's Department of Jobs and Family Services, authorized the searches within days of Samuel Joseph Wurzelbacher gaining national attention during a presidential debate in which both candidates took turns pitching their tax plans as best for "Joe the Plumber," as Wurzelbacher became known after a chance run in with Obama at an Ohio campaign stop.

Ohio's Inspector General concluded in a report that Jones-Kelley had wrongly authorized searches of Wurzelbacher through records kept on child support payments, temporary aid to families and unemployment benefits. A state employee concerned that privacy rules had been violated initially disclosed the breaches.

Consider the frightening message that sends: keep your head down. Don’t stick your head up or it might get cut off. You don’t believe me? Consider this additional paragraph:

Jones-Kelley told investigators that it was agency practice to check the backgrounds of someone "thrust quickly into the public spotlight," but Thursday's report from Inspector General Thomas P. Charles said there were "no policies or procedures to support her."

(Source.) Yeah, I am sure it had nothing to do with the politics involved, either.

Or consider equally the possibility of leaks of private data:

John Eastman, a law professor at Chapman University’s School of Law and the chairman of the National Organization for Marriage, said that copies of the group’s tax returns and donor lists were leaked to the Human Rights Campaign, a group that supports marriage equality.

“These are felonies,” he said, and ones that have not been prosecuted despite his group’s requests of the Justice Department.

(Source.) And when those donor lists were leaked, this led to... you guessed it0, intimidation. No, not as bad as getting killed by hooded terrorists, but there is no amount of anti-free-speech intimidation that is justifiable in my book, especially when it is prompted by state action.

Eastman believes this is due to a deliberate leak, but leaks can be deliberate and malicious or merely incompetent. Do you feel comfortable that the government will do everything it can to protect this private information from hackers and other information gatherers? They have trouble protecting their own secrets. Why should you think they will do better with yours, which the don’t’ care as much about?

And the worst thing about this, is that there isn’t even the pretense of individualized suspicion, here. And that, folks, is the key to the Fourth Amendment.

The Fourth Amendment states the following:

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

The first clause means more or less, “no unreasonable searches and seizures.” Meanwhile the primary purpose of the second clause is to prevent what is called a “general warrant”—that is, an open-ended warrant lacking specificity in time, place, the things or people to be searched or seized. In Andresen v. Maryland (1976), the Supreme Court wrote that:

General warrants, of course, are prohibited by the Fourth Amendment. "[T]he problem [posed by the general warrant] is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings. . . . [The Fourth Amendment addresses the problem] by requiring a `particular description' of the things to be seized." Coolidge v. New Hampshire, 403 U. S. 443, 467 (1971). This requirement " `makes general searches . . . impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

Even when searches are not performed under a warrant, these principles guide how the Fourth Amendment applies. For instance, in Chandler v. Miller (1997), Justice Ginsberg wrote that:

The Fourth Amendment requires government to respect "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." This restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion.

In Chandler, they were confronted with a requirement that all candidates for certain Georgia state offices pass drug tests. Besides arguably having a disparate impact on the Democratic and Libertarian parties (I kid!), this was seen as a violation of the Fourth Amendment because it was a search without individualized suspicion.

Which is not to say this is always fatal. If you read Chandler you will see several circumstances listed where it was allowed. It required two things. First it had to be a special circumstance over and above ordinary law enforcement. I suppose there is a good chance that the fear of terrorism justifies that (this order did start after the Boston Marathon bombing after all) though that is not guaranteed. And second, the intrusion has to be minimal. Which is where I think this thing trips up. Why do they have to track the movements and phone calls of every person on Verizon? They can’t narrow it down? Not even a little?

The answer is of course they can. They can come up with a list of suspected terrorists and maybe track their associates and even the associates of their associates. They don’t have to track everyone.

Indeed, such tracking would appear to violate the law they claim authorization under. Here’s the relevant statutory text:
Subject to paragraph (3), the Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
That is one part. Here is another, discussing what has to be in the order:

(b) Recipient and contents of application

Each application under this section—

...

(2) shall include—

(A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation...

So taking the last chunk first, you have to have reasonable grounds to think the information relevant to an investigation of terrorism. How could taking everyone’s records possibly be relevant? Do they think everyone on Verizon is at least related to terrorism?

Well, in fact we know they think they aren’t. Every time there is an Islamofascist terrorist attack, the White House is quick to stress that Islam is not the problem and that most Muslims are good people. And they are right. Not only are most Muslims not likely to be involved in Islamofascist terrorism, but they are indeed its most common victims globally.

So how can this administration swear up and down that not all Muslims are involved in terrorism, and then turn around and surveil every single Muslim who happens to use Verison? Yes, I know they are survelling everyone who uses Verizon, but “everyone” includes “every single Muslim who uses Verizon.” So how can they justify treating every Muslim (and every non-Muslim) like a terrorism suspect?

The short answer is, you can’t.

And further, the definition of who can be investigated limited as follows in the first passage I quoted:

provided such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.

Now first, notice the use of the word “person.” That means they were not even contemplating a mass collection of data with this law. Let that sink in for a moment.

And second, why are they suspicions of every single American who uses a Verizon phone? Because they committed the crime of talking on the phone. How is that not protected by the First Amendment?

Oh and what do you want to bet this isn’t limited to Verizon? Seriously, are we to think that the FBI thinks the terrorists only use one cell phone company? And for that matter, only cell phone companies? No landlines? Really?

No, more than likely they have tracked all of you. We haven’t proven this to be the case, but it seems all but certain to be the case.

Welcome to the surveillance state.

 whembly wrote:
Here's the deal... if the NSA "snooping" is only used in order to prevent another 9-11 style attack... isn't that what we want the NSA to do?

President Barack Obama has defended newly revealed US government phone and internet surveillance programmes, saying they are closely overseen by Congress and the courts.

Mr Obama said his administration had struck "the right balance" between security and privacy.

He also stressed US internet communications of US citizens and residents were not targeted.

And he tried to reassure the US "nobody is listening to your phone calls".

Mr Obama was commenting on revelations this week in the Guardian and Washington Post newspapers that the US National Security Agency (NSA) was collecting or tapping into vast amounts of telephone and internet communications data.

The news accounts - subsequently confirmed by officials - roiled Washington DC, with privacy advocates criticising the surveillance as an unlawful intrusion and many in Congress defending the programmes as appropriate counter-terrorism tools.

'Healthy scepticism'

On Wednesday night, the UK's Guardian newspaper reported a secret court had ordered phone company Verizon to hand over to the NSA millions of records on telephone call "metadata".

That report was followed by revelations in both the Washington Post and Guardian that the NSA tapped directly into the servers of nine internet firms including Facebook, Google, Microsoft and Yahoo to track online communication in a programme known as Prism.

In California on Friday, Mr Obama noted both NSA programmes had been authorised repeatedly by Congress and were subject to continual oversight by congressional intelligence committees and by secret intelligence courts.

The president said he had come into office with a "healthy scepticism" of both programmes, but after evaluating them and establishing further safeguards, he decided "it was worth it".

"You can't have 100% security, and also then have 100% privacy and zero inconvenience," Mr Obama said.

Acknowledging "some trade-offs involved", he said, "We're going to have to make some choices."

Senior US Senator Dianne Feinstein confirmed on Thursday that the Verizon phone records order published by the Guardian was a three-month extension of an ongoing request to Verizon. Intelligence analysts say there are likely similar orders for other major communications firms.

The data requested includes telephone numbers, calling card numbers, the serial numbers of phones used and the time and duration of calls. It does not include the content of a call or the callers' addresses or financial information.

Prism was reportedly developed in 2007 out of a programme of domestic surveillance without warrants that was set up by President George W Bush after the 9/11 attacks.

Prism reportedly does not collect user data, but is able to pull out material that matches a set of search terms.

James Clapper, director of US national intelligence, said in a statement on Thursday the internet communications surveillance programme was "designed to facilitate the acquisition of foreign intelligence information concerning non-US persons located outside the United States".

"It cannot be used to intentionally target any US citizen, any other US person, or anyone located within the United States," he added.

'Assault on Constitution'

But while US citizens were not intended to be the targets of surveillance, the Washington Post says large quantities of content from Americans are nevertheless screened in order to track or learn more about the target.

The Prism programme has become a major contributor to the president's daily intelligence briefing and accounts for almost one in seven intelligence reports, it adds.

Mr Clapper said the programme, under Section 702 of the Foreign Intelligence Surveillance Act, was recently reauthorised by Congress after hearings and debate.

In Congress, reaction to the revelations was split.

"When law-abiding Americans make phone calls, who they call, when they call and where they call from is private information," said Democratic Senator Ron Wyden.

"As a result of the disclosures that came to light today, now we're going to have a real debate in the Congress and the country and that's long overdue."

Republican Senator Rand Paul called the programmes "an astounding assault on the Constitution''.

But his colleagues Republican Senator Lindsay Graham and Democratic Senator Dianne Feinstein both defended the phone records practice on Thursday.

Obama: If you can’t trust government to follow the Constitution while spying, we’re going to have some problems

Within hours of the disclosure that federal authorities routinely collect data on phone calls Americans make, regardless of whether they have any bearing on a counterterrorism investigation, the Obama administration issued the same platitude it has offered every time President Obama has been caught overreaching in the use of his powers: Terrorists are a real menace and you should just trust us to deal with them because we have internal mechanisms (that we are not going to tell you about) to make sure we do not violate your rights.

Those reassurances have never been persuasive — whether on secret warrants to scoop up a news agency’s phone records or secret orders to kill an American suspected of terrorism — especially coming from a president who once promised transparency and accountability.

The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.

Based on an article in The Guardian published Wednesday night, we now know that the Federal Bureau of Investigation and the National Security Agency used the Patriot Act to obtain a secret warrant to compel Verizon’s business services division to turn over data on every single call that went through its system. We know that this particular order was a routine extension of surveillance that has been going on for years, and it seems very likely that it extends beyond Verizon’s business division. There is every reason to believe the federal government has been collecting every bit of information about every American’s phone calls except the words actually exchanged in those calls.

Articles in The Washington Post and The Guardian described a process by which the N.S.A. is also able to capture Internet communications directly from the servers of nine leading American companies. The articles raised questions about whether the N.S.A. separated foreign communications from domestic ones.

A senior administration official quoted in The Times online Thursday afternoon about the Verizon order offered the lame observation that the information does not include the name of any caller, as though there would be the slightest difficulty in matching numbers to names. He said the information “has been a critical tool in protecting the nation from terrorist threats,” because it allows the government “to discover whether known or suspected terrorists have been in contact with other persons who may be engaged in terrorist activities, particularly people located inside the United States.”

•

That is a vital goal, but how is it served by collecting everyone’s call data? The government can easily collect phone records (including the actual content of those calls) on “known or suspected terrorists” without logging every call made. In fact, the Foreign Intelligence Surveillance Act was expanded in 2008 for that very purpose.

Essentially, the administration is saying that without any individual suspicion of wrongdoing, the government is allowed to know whom Americans are calling every time they make a phone call, for how long they talk and from where.

This sort of tracking can reveal a lot of personal and intimate information about an individual. To casually permit this surveillance — with the American public having no idea that the executive branch is now exercising this power — fundamentally shifts power between the individual and the state, and it repudiates constitutional principles governing search, seizure and privacy.

The defense of this practice offered by Senator Dianne Feinstein of California, who as chairwoman of the Senate Intelligence Committee is supposed to be preventing this sort of overreaching, was absurd. She said on Thursday that the authorities need this information in case someone might become a terrorist in the future. Senator Saxby Chambliss of Georgia, the vice chairman of the committee, said the surveillance has “proved meritorious, because we have gathered significant information on bad guys and only on bad guys over the years.”

But what assurance do we have of that, especially since Ms. Feinstein went on to say that she actually did not know how the data being collected was used?

The senior administration official quoted in The Times said the executive branch internally reviews surveillance programs to ensure that they “comply with the Constitution and laws of the United States and appropriately protect privacy and civil liberties.”

That’s no longer good enough. Mr. Obama clearly had no intention of revealing this eavesdropping, just as he would not have acknowledged the killing of Anwar al-Awlaki, an American citizen, had it not been reported in the press. Even then, it took him more than a year and a half to acknowledge the killing, and he is still keeping secret the protocol by which he makes such decisions.

•

We are not questioning the legality under the Patriot Act of the court order disclosed by The Guardian. But we strongly object to using that power in this manner. It is the very sort of thing against which Mr. Obama once railed, when he said in 2007 that the surveillance policy of the George W. Bush administration “puts forward a false choice between the liberties we cherish and the security we provide.”

Two Democrats on the Senate Intelligence Committee, Ron Wyden of Oregon and Mark Udall of Colorado, have raised warnings about the government’s overbroad interpretation of its surveillance powers. “We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted Section 215 of the Patriot Act,” they wrote last year in a letter to Attorney General Eric Holder Jr. “As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.”

On Thursday, Representative Jim Sensenbrenner, Republican of Wisconsin, who introduced the Patriot Act in 2001, said that the National Security Agency overstepped its bounds by obtaining a secret order to collect phone log records from millions of Americans.

“As the author of the Patriot Act, I am extremely troubled by the F.B.I.’s interpretation of this legislation,” he said in a statement. “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses.” He added: “Seizing phone records of millions of innocent people is excessive and un-American.”

Stunning use of the act shows, once again, why it needs to be sharply curtailed if not repealed.

What the ...?

Dear Google users—

You may be aware of press reports alleging that Internet companies have joined a secret U.S. government program called PRISM to give the National Security Agency direct access to our servers. As Google’s CEO and Chief Legal Officer, we wanted you to have the facts.

First, we have not joined any program that would give the U.S. government—or any other government—direct access to our servers. Indeed, the U.S. government does not have direct access or a “back door” to the information stored in our data centers. We had not heard of a program called PRISM until yesterday.

Second, we provide user data to governments only in accordance with the law. Our legal team reviews each and every request, and frequently pushes back when requests are overly broad or don’t follow the correct process. Press reports that suggest that Google is providing open-ended access to our users’ data are false, period. Until this week’s reports, we had never heard of the broad type of order that Verizon received—an order that appears to have required them to hand over millions of users’ call records. We were very surprised to learn that such broad orders exist. Any suggestion that Google is disclosing information about our users’ Internet activity on such a scale is completely false.

Finally, this episode confirms what we have long believed—there needs to be a more transparent approach. Google has worked hard, within the confines of the current laws, to be open about the data requests we receive. We post this information on our Transparency Report whenever possible. We were the first company to do this. And, of course, we understand that the U.S. and other governments need to take action to protect their citizens’ safety—including sometimes by using surveillance. But the level of secrecy around the current legal procedures undermines the freedoms we all cherish.

Posted by Larry Page, CEO and David Drummond, Chief Legal Officer