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Obama Expands Bush Data Mining Program

digital-mind

Apparently, it’s not just reporters whose phone logs the Obama administration is tracking.

Glenn Greenwald, The Guardian (“NSA collecting phone records of millions of Verizon customers daily“):

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.

The disclosure is likely to reignite longstanding debates in the US over the proper extent of the government’s domestic spying powers.

Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA, but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.

The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.

NYT (“U.S. Is Secretly Collecting Records of Verizon Calls“):

The Obama administration is secretly carrying out a domestic surveillance program under which it is collecting business communications records involving Americans under a hotly debated section of the Patriot Act, according to a highly classified court order disclosed on Wednesday night.

The order, signed by Judge Roger Vinson of the Foreign Intelligence Surveillance Court in April, directs a Verizon Communications subsidiary, Verizon Business Network Services, to turn over “on an ongoing daily basis” to the National Security Agency all call logs “between the United States and abroad” or “wholly within the United States, including local telephone calls.”

The order does not apply to the content of the communications.

Verizon Business Network Services is one of the nation’s largest telecommunications and Internet providers for corporations. It is not clear whether similar orders have gone to other parts of Verizon, like its residential or cellphone services, or to other telecommunications carriers. The order prohibits its recipient from discussing its existence, and representatives of both Verizon and AT&T declined to comment Wednesday evening.

Naturally, civil libertarians are concerned.

The ACLU (“Massive NSA Phone Data-Mining Operation Revealed“):

“From a civil liberties perspective, the program could hardly be any more alarming. It’s a program in which some untold number of innocent people have been put under the constant surveillance of government agents,” said Jameel Jaffer, American Civil Liberties Union deputy legal director. “It is beyond Orwellian, and it provides further evidence of the extent to which basic democratic rights are being surrendered in secret to the demands of unaccountable intelligence agencies.”

[...]

“Now that this unconstitutional surveillance effort has been revealed, the government should end it and disclose its full scope, and Congress should initiate a full investigation,” said Michelle Richardson, legislative counsel with the ACLU Washington Legislative Office. “This disclosure also highlights the growing gap between the public’s and the government’s understandings of the many sweeping surveillance authorities enacted by Congress. Since 9/11, the government has increasingly classified and concealed not just facts, but the law itself. Such extreme secrecy is inconsistent with our democratic values of open government and accountability.”

AP has the White House story:

The White House on Thursday defended the National Security Agency’s need to collect telephone records of U.S. citizens, calling such information “a critical tool in protecting the nation from terrorist threats.”
While defending the practice, a senior Obama administration official did not confirm a newspaper report that the NSA has been collecting the telephone records of millions of U.S. customers of Verizon under a top secret court order.

[...]
The administration official said, “On its face, the order reprinted in the article does not allow the government to listen in on anyone’s telephone calls.”

Despite my libertarian leanings, I’m not convinced this is outrageous. As with the Bush program, it strikes me as potentially defensible depending on how it’s used. That is, I have no inherent problem with pure “data mining.” If all the government is doing is collecting mass amounts of phone record data and then sifting it using computer algorithms for patterns that comport with known terrorist habits, I’m not sure why that’s problematic. Nobody’s privacy is meaningfully invaded if that’s all that’s happening. If, on the other hand, individuals are being targeted without reasonable suspicion and the mass collection is a way to get around the requirement to prove the need for a warrant, then this is outrageous and unconstitutional. And, of course, even if the intent is the former, the mere possession of this information leads to the possibility of rogue agents abusing it. But that may well be outweighed by the intelligence value.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. Rick DeMent says:

    I was under the impression that this is the Bush Program that was renewed in 2007 over the objection of no one other then socialist Democrats.

    Highly-rated. Helpful or Unhelpful: Thumb up 20 Thumb down 0

  2. OzarkHillbilly says:

    the mass collection is a way to get around the requirement to prove the need for a warrant,

    They got a FISA warrant as I understand it.

    Like or Dislike: Thumb up 5 Thumb down 1

  3. Paul L. says:

    Love seeing the progressives/Obots who wet themselves over the “Bush warrantless wiretapping” now defend the practice and say it is still not as bad as Bush’s

    Like or Dislike: Thumb up 2 Thumb down 16

  4. stonetools says:

    Joshua Foust has made the definitive post on this.
    Bottom line, it is Congress (and we the people really) who have legislated and authorized this every step of the way. The nub:

    3. All of the opprobrium you should feel at the government’s ridiculously broad surveillance powers needs to be directed at CONGRESS, which keeps approving them while voting they stay secret.

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 0

  5. Al says:

    If all the government is doing is collecting mass amounts of phone record data[...]

    The data being collected includes data plan usage as well. I’d presume that means iOS and Android device usage data although the scope of what that means is still unclear. (At least to me.)

    Like or Dislike: Thumb up 1 Thumb down 0

  6. mantis says:

    @Paul L.:

    Love seeing the progressives/Obots who wet themselves over the “Bush warrantless wiretapping” now defend the practice and say it is still not as bad as Bush’s

    Explain how monitoring actual communication (phone, internet, email, text messaging) without a warrant is comparable to collecting phone records (just call records, no content) with a warrant. If you can’t do that, then you may be on your way to understanding the difference. I won’t hold my breath, Idiot King.

    Like or Dislike: Thumb up 15 Thumb down 4

  7. The mere notion that this is defensible strikes me as a strange statement. The mere possibility of what you describe as ‘rogue agents’ using it is specifically why this program should immediately be terminated and all call data be destroyed. There is simply no reason to collect my cell data; I’m not being accused of a crime. And even if I was, that kind of collection would violate what little is left of the fourth amendment.

    Furthermore, it doesn’t even make sense from a security standpoint! When everyone is a suspect, no one is a suspect because there’s simply no way to look at everything that’s happening.

    Like or Dislike: Thumb up 8 Thumb down 1

  8. @OzarkHillbilly:

    They got a FISA warrant as I understand it.

    Not only that, but from what I understand this request was shortly after, and in the context of, the Boston Marathon Bombing.

    That and it was only approved for three months? Sounds like they’re looking for something specific….

    Like or Dislike: Thumb up 4 Thumb down 0

  9. G.A.Phillips says:

    lol, the war on terror is over unless you happen to be TEA Party, or anyone else Obama feels the need to spy on as a terrorist.

    I will now start all phone conversations with “Larry and Barry went up the hill-both with a rock and a lighter-Larry cam down with a mouth full of man juice.”

    Um, was that to racy James? If so just delete it:)

    Poorly-rated. Helpful or Unhelpful: Thumb up 1 Thumb down 17

  10. Franklin says:

    If this is with a warrant, fine, assuming some judge isn’t just acting like a rubber stamp. If this is without a warrant, sorry but I do actually have a problem with it. Who I make phone calls to could be used against me for political and other non-criminal reasons.

    Like or Dislike: Thumb up 1 Thumb down 1

  11. Tillman says:

    @stonetools: I think I most appreciate the following:

    7. No one will respond to this by voting out their representatives or Senators during the next election because, despite the temporary outcry, Americans (including the Congressmen and Senators who tried to add amendments) don’t care about this very much.

    8. None of you will stop voluntarily giving Verizon (or AT&T, Sprint, T-Mobile, etc.) your personal information out of the fear that they might be legally compelled to hand it over to an intelligence agency through a legal process. Because, at the end of the day, you really don’t care about this very much either. At least, you don’t care enough to go out of your way to change it.

    Like or Dislike: Thumb up 9 Thumb down 0

  12. Paul L. says:

    @mantis:
    You are overlooking one thing about the “inconsequential” phone records Obot.
    Bush-era was one-party foreign originating overseas. This is both-party domestic.
    NSA’s Verizon Spying Order Specifically Targeted Americans, Not Foreigners

    Like or Dislike: Thumb up 8 Thumb down 0

  13. G.A.Phillips says:

    That and it was only approved for three months? Sounds like they’re looking for something specific….

    From millions of us? I guess the Muslim true believer problem in this country is as big as I kind of thought it was…

    Heck, maybe all these people had orders in for or had been extras in the Anti Islam Video. Then I could understand the secret spying and data gathering.

    lol…Maybe Obama was talking a secret poll to see if the American people wanted a paid top tier propagandist and political hack for NSA that shines up like a new penny when you put lipstick on her?

    Or an anti Jew for, oh, just, like , say, every other post and or position he has open?

    Like or Dislike: Thumb up 1 Thumb down 12

  14. G.A.Phillips says:

    assuming some judge isn’t just acting like a rubber stamp.

    Or one that they finally found that was drunk enough to sign it.

    Like or Dislike: Thumb up 2 Thumb down 10

  15. Mikey says:

    @James Pearce (Formerly Known as Herb):

    Sounds like they’re looking for something specific….

    That’s the thing we don’t know–this order was obviously issued in conjunction with something, but we don’t know what that something is. We have no context within which to place it.

    That doesn’t stop people from creating their own, of course, so now we have Verizon helping the government monitor all our communications all the time, etc.

    Like or Dislike: Thumb up 1 Thumb down 0

  16. James in Silverdale, WA says:

    Who has the ability to verify exactly what data is being captured? Are we to just accept the word of the data-miners? The court is secret. The program is secret. You have the robot Lindsay Graham gladly handing over his records to Verizon because “he has nothing to hide.”

    Congress must act to take back these powers. Seat grand juries today to probe matters of war crimes.

    Like or Dislike: Thumb up 6 Thumb down 0

  17. James Joyner says:

    @OzarkHillbilly: A blanket warrant for mass data collection, not a warrant to spy on individual people. I’m not too worried about the former.

    @Christopher Bowen: Verizon already has the information and the same possibility for abuse. NSA computers may well be able to make great use of masses of data. My point is that it’s possible that there are no individual suspects; that they’re looking for patterns, not individual records.

    @stonetools: I think that’s right. It’s the same as the drone program: The only people concerned are either partisans or specialists; the mass public will put up with a lot in the name of security.

    @James in Silverdale, WA: This worries me as well. Indeed, as with the Bush program, that was always my problem: it’s quite possible that it was not only benign but hugely helpful; but how the hell do we know?

    Like or Dislike: Thumb up 3 Thumb down 0

  18. stonetools says:

    We should also understand that what they are getting is not content, but call histories, which most of us don’t care about. On Froust’s post, one commenter challenged other to post his call history, and the other complied. Here it is:

    DateTimeDestinationNumberCall TypeMinutesCharges4/30/135:52 PMIncoming201-606-50672-5/01/1310:15 AM1-866 #866-454-25221-5/01/134:27 PMIncoming704-909-03262-5/01/134:30 PMCharlotte, NC704-909-0326(A)
    16-5/01/134:42 PMIncoming704-909-0326(A)
    23-5/01/135:05 PMVm Retrieval123(G)
    2-5/02/138:45 PMNew York, NY646-873-60291-5/04/136:23 AMIncoming443-472-61762-5/04/136:38 AMNew York, NY917-428-83801-5/04/136:40 AMIncoming917-428-83803-5/04/133:14 PMIncoming415-793-52642-5/05/1310:14 PMNew York, NY917-547-87601-5/09/132:21 PMIncoming802-863-96004-5/09/137:32 PMIncoming347-722-5001(F)
    1-5/09/137:38 PMNew York, NY917-539-7567(F)
    1-5/09/137:53 PMIncoming917-601-9531(F)
    1-5/10/1312:03 AMIncoming917-547-87601-5/10/138:13 PMBrainerd, MN218-821-13791-5/12/138:39 AMNew York, NY917-720-816534-5/13/137:27 PMIncoming424-644-940

    While I wouldn’t have posted such info, I really can’t see this as all that sensitive, especially since you don’t have names and addresses to go along with it.

    Like or Dislike: Thumb up 1 Thumb down 1

  19. @Mikey:

    That’s the thing we don’t know–this order was obviously issued in conjunction with something, but we don’t know what that something is. We have no context within which to place it.

    We don’t, that’s true, but the folks with all the proper security clearances know exactly what this is about, what they’re looking for, and so does the judge who approved the FISA warrant.

    I’ll admit….I’m willing to give Obama the benefit of the doubt on this one. Not just because of my political loyalties, but because of the guy’s established record.

    Like or Dislike: Thumb up 0 Thumb down 1

  20. Ben says:

    @Tillman:

    7. No one will respond to this by voting out their representatives or Senators during the next election because, despite the temporary outcry, Americans (including the Congressmen and Senators who tried to add amendments) don’t care about this very much.

    This is a meaningless statement, unless the person running against my Rep is opposed to this program. I don’t even know who is running against my rep yet, and I can tell you that he will support it. So voting out my representative because I’m angry about this is nonsensical.

    Like or Dislike: Thumb up 4 Thumb down 0

  21. Jack says:

    Nothing to see here, move along. Obama apologists will forgive this administration for anything, up to and including POTUS raping a 7-year old girl live on national TV while simultaneously strangling a bald eagle. This administration has no shame.

    Like or Dislike: Thumb up 4 Thumb down 13

  22. gVOR08 says:

    I’m afraid I see this as outrageous, but too expected for me to get outraged at this late date. I’ve assumed since the Patriot Act that they’re reading my email. Phone records is new, but hardly surprising.

    Feinstein and Chambliss are apparently confirming this is a seven year old program. I haven’t seen any claim that it’s been expanded. However, it’s been secret, so who knows. I wish Obama had killed this. Now he’s going to take the heat for a Bush initiative. And as others have observed, it’s really Congress’s fault.

    Like or Dislike: Thumb up 12 Thumb down 0

  23. Ben says:

    @stonetools:

    The problem is that this data could establish patterns that have to do with things other than terrorism. What if it establishes the pattern of a drug dealer? You think the NSA wouldn’t turn that data over to the DEA? Are we sure? When they they finally released the data on NSLs back in 2008 or 9, it turned out that over 90% of them were used in drug investigations, not terrorism.

    Like or Dislike: Thumb up 6 Thumb down 0

  24. Dave D says:

    @Franklin: The FISA court is a rubber stamp it has rejected 11 warrants since its founding.
    http://epic.org/privacy/wiretap/stats/fisa_stats.html

    Like or Dislike: Thumb up 2 Thumb down 0

  25. mantis says:

    @Paul L.:

    You are overlooking one thing about the “inconsequential” phone records Obot.

    No, I’m not. Do you have a point?

    By the way, you neglected to even attempt to explain how the two are comparable. Use the word “warrant” in your answer.

    Like or Dislike: Thumb up 10 Thumb down 2

  26. stonetools says:

    @Ben:

    When they they finally released the data on NSLs back in 2008 or 9, it turned out that over 90% of them were used in drug investigations, not terrorism.

    Yeah, well, the average joe won’t have a problem with the info being used to lock up drug dealers.
    I think that the civil liberties specialists will wring their hands about this, the right wingers will express vociferous support, the public will yawn, and a week from now it will go down the memory hole.

    Like or Dislike: Thumb up 4 Thumb down 0

  27. Mikey says:

    @James Pearce (Formerly Known as Herb): One interesting point about the order–it orders Verizon’s business communications arm, Business Network Services, to turn over the records. You know who has a whole lot of traffic going through Verizon Business Network Services?

    The federal government, including all the big three-letter agencies.

    Like or Dislike: Thumb up 3 Thumb down 0

  28. Tillman says:

    @Ben:

    This is a meaningless statement, unless the person running against my Rep is opposed to this program.

    And he would be opposed to the program if there was political gain in opposing it. It would resonate with voters, and it would sway their decisions at the polls. No one cares that much, so it won’t be an election issue.

    You’re putting the cart before the horse in arguing that you wouldn’t have a choice to begin with, when the choices you are offered in an election are based on what the majority of the public wants from its elected representatives. If a majority doesn’t care, it doesn’t get brought up.

    Like or Dislike: Thumb up 1 Thumb down 0

  29. gVOR08 says:

    @stonetools: Sadly, I hope you’re right. But I fear the Rs will try to push Bush’s involvement down the memory hole and start talking about impeachment.

    Like or Dislike: Thumb up 6 Thumb down 0

  30. anjin-san says:

    @ James Pearce (Formerly Known as Herb)

    I’ll admit….I’m willing to give Obama the benefit of the doubt on this one.

    I’m not sure if I am. He seems to be making moves to reel in the worst excesses of the war on terror, so I guess we wait and see about this. We opened Pandora’s Box with the “Patriot Act” – it’s notoriously difficult to undo what has been done in these sorts of cases.

    It is interesting to observe the howls of outrage from Fox News, the head cheerleader for Bush’s assault on civil liberties and privacy.

    Like or Dislike: Thumb up 5 Thumb down 1

  31. Dave Schuler says:

    James, how would you reconcile the Supreme Court’s finding in Kyllo v. United States with this practice? In Kyllo the Court found that thermal imaging could not be used to monitor an individual’s home without a warrant. It would seem bizarre to me that similar imaging could be used without any warrant.

    How great a distance is it from thermal imaging to data mining? To my mind the principle is very much the same.

    I understand an appeal to efficacy or practicality. At what point do such appeals end?

    Like or Dislike: Thumb up 3 Thumb down 0

  32. rudderpedals says:

    Isn’t the fix here really simple? These are essentially pen registers, covered by the Wiretap Act and ECPA before the misleadingly named PATRIOT act fell into our laps. Righties should lobby Cantor and lefties like me Reid to repeal the abusive aspects of the PATRIOT act.

    Like or Dislike: Thumb up 3 Thumb down 0

  33. Sam Malone says:

    GA Phillips sez:

    “…Or one that they finally found that was drunk enough to sign it…”

    Yeah…turns out it was the same drunk that said Obamacare was Unconstitutional.
    As stupid as his avatar is ugly.

    Like or Dislike: Thumb up 7 Thumb down 1

  34. Sam Malone says:

    If this is more than collecting data and looking for patterns…then there is potentially a big problem. I’ll wait and see how this develops.
    I must say that I still trust this administration far more than the one that allowed 9.11 on their watch, invaded Iraq on trumped-up evidence, institutionalized torture, outed a covert operative, and wiretapped without warrants. But I’m willing to allow for the possibility that’s just me.

    Like or Dislike: Thumb up 7 Thumb down 2

  35. Ben says:

    @stonetools:

    Yeah, well, the average joe won’t have a problem with the info being used to lock up drug dealers.

    The “average joe” probably supports throwing away the great majority of our constitutional rights for various reasons. I don’t think that “the average joe would support this” is a valid way to argue when certain actions run afoul of the Constitution.

    Our constitutional protections are not up for a popular vote, unless there’s a constitutional amendment that’s in the process of being ratified that I’m not aware of.

    Like or Dislike: Thumb up 7 Thumb down 0

  36. Sam Malone says:
  37. [...] Street Journal, Engadget, Betsy’s Page, Patterico’s Pontifications, AllThingsD, Outside the Beltway, Post Politics, Informed Comment,Nice Deb, Real Clear Politics, Wired, The Gateway [...]

    Like or Dislike: Thumb up 0 Thumb down 0

  38. stonetools says:

    @rudderpedals:

    Righties should lobby Cantor

    HAHAHAHA.
    That’s a real thigh slapper there.

    For the record, most House Democrats voted against-and most House Republicans for-the 2011 extension to the Patriot Act.

    In The Senate,23 Dems voted against but the majority voted for , joining all the Republicans .

    Like or Dislike: Thumb up 7 Thumb down 1

  39. Tillman says:

    @Dave Schuler:

    In Kyllo the Court found that thermal imaging could not be used to monitor an individual’s home without a warrant. It would seem bizarre to me that similar imaging could be used without any warrant.

    How great a distance is it from thermal imaging to data mining?

    Depends. How many metropolitan areas are they aiming gigantic thermal imaging cameras at?

    Like or Dislike: Thumb up 0 Thumb down 0

  40. stonetools says:

    @Ben:

    Our constitutional protections are not up for a popular vote, unless there’s a constitutional amendment that’s in the process of being ratified that I’m not aware of.

    Apparently the courts are just fine with the Patriot Act and associated legislation and so is a majority of Congress.

    Like or Dislike: Thumb up 3 Thumb down 0

  41. @anjin-san:

    I’m not sure if I am. He seems to be making moves to reel in the worst excesses of the war on terror,

    Heck, man, I would say Obama’s excesses are just as bad, if not worse in some cases, as Bush’s. Commando raids into Pakistan? That’s bold….

    The main difference with Bush? The excesses come with successes. This is how the War on Terror should have been fought from the get-go.

    Like or Dislike: Thumb up 7 Thumb down 0

  42. Sam Malone says:

    Republican Rep. Mike Rogers of Michigan defended the telephone records collection at a Capitol Hill news conference on Thursday. He said the information culled from the records enabled U.S. authorities to stop a “significant case.

    So…if it is in fact effective…and in fact has Judicial oversight…what-thinks-ye-now???

    Like or Dislike: Thumb up 1 Thumb down 1

  43. Ben says:

    @stonetools:

    I fail to see how this is anything other than a general warrant.

    Like or Dislike: Thumb up 2 Thumb down 0

  44. Ben says:

    @Sam Malone:

    So…if it is in fact effective…and in fact has Judicial oversight…what-thinks-ye-now???

    There are a lot of things they could do that would be effective, which are appalling and odious to our rights against search and seizure. Effectiveness is unrelated to it’s constitutionality.

    And on the “judicial oversight”? Please. There couldn’t be a more rubberized stamp than the FISA courts. How many warrants have they ever rejected?

    Like or Dislike: Thumb up 3 Thumb down 1

  45. john personna says:

    I think it is a big privacy loss (for reasons below), but I kind of see it just as “Privacy is Dead, Episode 23.”

    I do think it’s bigger than James does though because while in theory there is just a sea of boring data that only robots troll … that is only in the default case. Constant collection means that a mere interest by law enforcement can open up a full and increasingly specific history on an individual.

    It may require a warrant for a sheriff to put a GPS tracker on your car, but oops, Verizon can give him the same data for the asking.

    Like or Dislike: Thumb up 6 Thumb down 1

  46. john personna says:

    (The key thing, as I read this, is that time and location data are freely available as a result of the general warrant. Full stop.)

    Like or Dislike: Thumb up 1 Thumb down 1

  47. rudderpedals says:

    @Sam Malone: So…if it is in fact effective…and in fact has Judicial oversight…what-thinks-ye-now???

    No better. Netcams in every home would also be effective and the PATRIOT act secrecies would support this judge’s blessing were he to handle the ruling.

    Matt Bernius posed a similar dilemma in yesterday’s TIGTA article where the screening that picked on Tea Party Patriots and the like was highly effective, 90% of the applications reporting forbidden activities.

    Like or Dislike: Thumb up 0 Thumb down 0

  48. michael reynolds says:

    @john personna:

    I have pretty much given up on any notion of complete privacy going forward. And it’s not the government and phone records that concern me. Google knows a hundred times more about me and you than the government does. Phone logs? Please. Google knows your hopes, your dreams, your sexual fantasies, the names of old girlfriends and enemies. Google doesn’t just know who you call but why.

    We are primed by Mr. Orwell to fear Big Brother, but we don’t seem concerned that the biggest brother of all sits in Mountain View collecting unimaginably complete pictures if every aspect of out lives.

    Like or Dislike: Thumb up 12 Thumb down 1

  49. john personna says:

    @michael reynolds:

    Yup.

    Like or Dislike: Thumb up 0 Thumb down 1

  50. stonetools says:

    @Ben:

    I fail to see how this is anything other than a general warrant.

    And there is a federal judge that disagrees with you.I’ve looked at a lot of blogs, including law blogs. No one sees this as a violation of the law as currently written.Here’s the reality:

    Congress has previously passed up opportunities to compel public disclosure about the breadth of domestic surveillance operations. Last December, Democratic Senator Jeff Merkley of Oregon attempted to amend federal law to force the government to disclose more about the secret intelligence court’s interpretations of the executive branch’s surveillance powers. His amendment was voted down 37-54, with only three Republicans in support.

    Another amendment, proposed by Senator Ron Wyden, an Oregon Democrat, would have compelled the NSA to give an estimate of how often the NSA ends up collecting information on Americans–a request the NSA had previously refused to fulfill on the Orwellian grounds that it would violate Americans’ privacy for the agency to disclose how often it spies on them.

    That amendment was also rejected, 43-52, with most Republicans in the chamber voting against it.

    While the breadth of the NSA’s request could lead to harsh condemnations from legislators, most senators, and the vast majority of Republicans in the chamber, are on record voting to prevent Americans from knowing anything about it. California Senator Dianne Feinstein suggested during the debate that her Senate colleagues trying to amend the FISA law believed that “that this country no longer needs to fear an attack.”

    What we have is a law passed by a bipartisan majority-although mostly Republican- and upheld by a (majority Republican) federal judiciary. What this tells me is that the public favors these laws right now-and the judiciary does too.

    Like or Dislike: Thumb up 3 Thumb down 0

  51. Ben says:

    @stonetools:

    What we have is a law passed by a bipartisan majority-although mostly Republican- and upheld by a (majority Republican) federal judiciary. What this tells me is that the public favors these laws right now-and the judiciary does too.

    Well the Republicans certainly do.

    What you just posted is not a legal analysis. It is simply a rehashing of the votes in Congress. You don’t have to tell me how Congress voted on this, I am well aware, and wrote my rep and both of the senators each time reauthorization came up.

    Like or Dislike: Thumb up 2 Thumb down 0

  52. Ben says:

    @michael reynolds:

    Google has no legal power over you. They can’t throw you in prison, they can’t send a swat team to your house, and they can’t seize all of your possessions. All google can do is try to sell me stuff.

    Like or Dislike: Thumb up 2 Thumb down 0

  53. @Ben:

    And on the “judicial oversight”? Please. There couldn’t be a more rubberized stamp than the FISA courts. How many warrants have they ever rejected?

    I get your point, but it would be a mistake to think that a lack of rejections indicates the FISA process is a rubber stamp. It may be imperfect, but the FISA courts are indeed judicial review.

    If they approve the warrants, it may just mean that law enforcement agencies are putting in the due diligence. We’d like to think these guys are pros, right? The one that got rejected? That was submitted by an amateur.

    @john personna:

    Constant collection means that a mere interest by law enforcement can open up a full and increasingly specific history on an individual.

    Which wouldn’t necessarily be a bad thing if that individual were involved in planning terrorist attacks.

    Like or Dislike: Thumb up 1 Thumb down 1

  54. Mikey says:

    @Ben:

    And on the “judicial oversight”? Please. There couldn’t be a more rubberized stamp than the FISA courts. How many warrants have they ever rejected?

    I know people who obtain FISA warrants. Absent a true emergency (which are very few and far between), the process takes between six and nine months. The requirements are arduous and painstakingly detailed.

    It’s not a “rubber stamp,” I assure you.

    Like or Dislike: Thumb up 4 Thumb down 2

  55. Ben says:

    @Mikey:

    Oh wow, thanks, my mind is at ease.

    Like or Dislike: Thumb up 3 Thumb down 4

  56. slothtop says:

    I’m not sure this is an expansion, but merely continuation. This article from 2006 talks about the NSA intercepting domestic communications. I’m not sure how this is different.
    http://yahoo.usatoday.com/news/washington/2006-05-10-nsa_x.htm?csp=1

    Like or Dislike: Thumb up 0 Thumb down 0

  57. rudderpedals says:

    @Mikey:
    I know people who obtain FISA warrants.

    Do they confirm the 90:10 drug:terror ratio Ben indicated from the national security letter report?

    Like or Dislike: Thumb up 1 Thumb down 0

  58. @Ben:

    Google has no legal power over you. They can’t throw you in prison, they can’t send a swat team to your house, and they can’t seize all of your possessions. All google can do is try to sell me stuff.

    One idea that I wish would just die a welcome, long-overdue death is this stuff about how private companies can do X to make money but –oh my god– it’s beyond the pale when the government does the very same thing to save lives.

    It’s true…Google cannot throw you in jail. But then again, we can’t vote Google out of office, can we?

    Like or Dislike: Thumb up 3 Thumb down 1

  59. Mikey says:

    @rudderpedals: Some may be drug-trafficking related, I don’t know. My experience is in other areas.

    Like or Dislike: Thumb up 0 Thumb down 1

  60. Mikey says:

    @Ben: Not sure if that’s sarcasm, but I thought I would give the perspective of someone who has actual experience dealing with the requirements. You’re free to accept that, or not, as you like.

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  61. James Joyner says:

    @stonetools:

    What we have is a law passed by a bipartisan majority-although mostly Republican- and upheld by a (majority Republican) federal judiciary. What this tells me is that the public favors these laws right now-and the judiciary does too.

    While I think that’s right, it’s irrelevant. The entire point of a written Constitution and Bill of Rights is to constrain the power of government to do things the majority wants.

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  62. john personna says:

    @James Pearce (Formerly Known as Herb):

    Not to mention there is no actual division.

    How hard do you think it is for government to be one client among many for Google’s legally obtained data?

    I am sure the CIA is a client for Iranian search data.

    [I knew a Persian who claimed that nuclear scientists were Googling what they were working on.]

    Like or Dislike: Thumb up 1 Thumb down 1

  63. rudderpedals says:

    @Mikey: I suppose the only people who’d know the breakdown are the FISA court admin Judges and clerks themselves, and they’re not talking. Look at it from an outsider’s perspective. From here it’s a kafkaesque nightmare of secret non-adversarial proceedings totally foreign to the fundamental due process right to be heard.

    Like or Dislike: Thumb up 2 Thumb down 0

  64. Mikey says:

    @rudderpedals: I understand, it is at odds with the principle of open government, and it is difficult for someone like me to reassure someone like you, or Ben, because I can’t really say any more than I already have. And you don’t know me from Adam.

    Like or Dislike: Thumb up 1 Thumb down 0

  65. Paul L. says:

    @mantis:
    What does FISA stand for?

    Use the word “warrant” in your answer.

    Please explain how a warrant under the Foreign Intelligence Surveillance Act covers anyone who are not involved with “foreign powers” and “agents of foreign powers like Americans, Not Foreigners targeted should not be considered a overreach/misuse of the law?

    Like or Dislike: Thumb up 2 Thumb down 0

  66. stonetools says:

    @James Joyner:

    While I think that’s right, it’s irrelevant. The entire point of a written Constitution and Bill of Rights is to constrain the power of government to do things the majority wants.

    True. And the branch of government charged with interpreting the Constitution has determined that what the government is doing is lawful and constitutional.Your opinion might be different, but you know what they say about opinions….
    There’s really one solution, and that’s electing legislators who agree with you that the law goes too far and should be repealed. Now unfortunately for you, James, most of those legislators are going to be Democrats.A Democratic majority House would have sunsetted the law in 2011, but your team voted for the laws to continue.

    Your move.

    Like or Dislike: Thumb up 1 Thumb down 1

  67. rudderpedals says:

    @Mikey: I think it’s pretty cool that you take the time to meaningfully engage discussion with a persona named after a flight control. This stuff is way outside of my bailiwick but I start from the assumption that the career people are there because they believe in doing good and actually do good.

    I suppose I’m more concerned about the captured data escaping into insecure hands than the risk of nefarious doings by authorized folk.

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  68. Ben Wolf says:

    The issue is not necessarily that the government has been obtaining this particular data. The issue is the government continues to expand its surveillance of us further and further and further. Nine years ago we were assured this sort of thing would only be targeted at foreign suspects, just as we were told the Patriot Act would never be used for anything other than serious national security threats, just as we were told the government would not store data in the long-term on U.S. citizens.

    Each time the government pushes our civil liberties back just a little bit we say, “That’s not so bad”. And then later it pushes a little more. Had the government announced in 2002 that its domestic spying programs as they currently exist were the goal, Congress and voters would have been up in arms. But we’re gradually conditioned to passively accept these ever-growing intrusions.

    I’d like those of you who suggest this isn’t that big a deal, or that Obama should get a pass to state specifically where you draw the line. At what point will you say the government has gone to far? And you’d better think about it before answering, because we will get there someday.

    Like or Dislike: Thumb up 2 Thumb down 0

  69. stonetools says:

    @Paul L.: @Paul L.:

    Please explain how a warrant under the Foreign Intelligence Surveillance Act covers anyone who are not involved with “foreign powers” and “agents of foreign powers like Americans, Not Foreigners targeted should not be considered a overreach/misuse of the law?

    Good question. SCOTUS is fine with it, though:

    The Supreme Court declined to review a lower court ruling in a case that challenged a Bush-era law (the FISA Amendments Act), retroactively giving telecommunications firms—including Verizon, Sprint, and AT&T—legal immunity after performing warrantless wiretapping at the government’s request.

    The case, Hepting v. AT&T, was a class-action suit filed in 2006 by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of customers. They originally sought billions of dollars in damages by arguing the telecom firms violated both users’ privacy and federal law. However, in the wake of this lawsuit and others like it, Congress passed the retroactive immunity law (FISA AA). The central question in the Hepting case was whether these immunity provisions were constitutional.

    My guess is that there was a later amendment to the statute that allowed for domestic surveillance. Again, your beef is with Congress, who has the power to repeal the law. You could also ponder that the five Justices who rejected the latest attempt to challenge the law on dubious grounds were appointed by Republican Presidents

    The US Supreme Court ruled 5-4 on Tuesday that a group of United States-based attorneys, journalists and human rights activists, along with their affiliated organizations, cannot sue to establish the unconstitutionality of a 2008 amendment to the Foreign Intelligence Surveillance Act (FISA).

    The decision had nothing to do with the merits of the claim. Rather, the lawsuit was thrown out of court because the plaintiffs could not prove that the interception of their phone calls and emails was “certainly impending,” a legal standard never before imposed to deny someone the right to sue.The US Supreme Court ruled 5-4 on Tuesday that a group of United States-based attorneys, journalists and human rights activists, along with their affiliated organizations, cannot sue to establish the unconstitutionality of a 2008 amendment to the Foreign Intelligence Surveillance Act (FISA).

    The decision had nothing to do with the merits of the claim. Rather, the lawsuit was thrown out of court because the plaintiffs could not prove that the interception of their phone calls and emails was “certainly impending,” a legal standard never before imposed to deny someone the right to sue.

    We get the government we vote for,and we get it good and hard.

    Like or Dislike: Thumb up 6 Thumb down 1

  70. Tillman says:

    @Ben Wolf:

    The issue is not necessarily that the government has been obtaining this particular data. The issue is the government continues to expand its surveillance of us further and further and further. Nine years ago we were assured this sort of thing would only be targeted at foreign suspects, just as we were told the Patriot Act would never be used for anything other than serious national security threats, just as we were told the government would not store data in the long-term on U.S. citizens.

    From the German translator of the I Ching, Richard Wilhelm:

    “As long as things are in their beginnings they can be controlled, but once they have grown to their full consequences they acquire a power so overwhelming that man stands impotent before them.”

    Like or Dislike: Thumb up 5 Thumb down 0

  71. mantis says:

    @Paul L.:

    You forgot to explain, again. I guess it is because you can’t.

    I may respond to your request after you do so, and when you manage to rephrase that request in a way that actually makes sense.

    Like or Dislike: Thumb up 0 Thumb down 2

  72. Ben Wolf says:

    By the way, that the FISA order does not make the contents of phone calls available is irrelevant. NSA has spent the last decade building the capability to intercept, record and analyze every single phone call made in the country. It doesn’t need Verizon to turn over such data because it already has it.

    Like or Dislike: Thumb up 1 Thumb down 0

  73. Mikey says:

    @rudderpedals: Your avatar reminds me of me when I had a ride in the backseat of an F-16D.

    When I wasn’t throwing up, that is.

    Like or Dislike: Thumb up 1 Thumb down 0

  74. Pharoah Narim says:

    Why the surprise? So…….. fascism has broken out in the middle of our mindless communist/socialist arguments. The checkers game we’ve been playing is revealed to be a chess match….sans the pretty pieces and board. Well played powers-that-be…well played indeed.

    Like or Dislike: Thumb up 1 Thumb down 0

  75. john personna says:

    @this:

    The National Security Agency and the FBI are tapping directly into the central servers of nine leading U.S. Internet companies, extracting audio, video, photographs, e-mails, documents and connection logs that enable analysts to track a person’s movements and contacts over time.

    U.S. intelligence mining data from nine U.S. Internet companies in broad secret program

    Like or Dislike: Thumb up 0 Thumb down 1

  76. [...] Originally Posted by NiteGuy You're wrong, @ptif219, all the way around. No hypocrisy at all, and the proof you'll no doubt ask for. Read 'em and weep: They had been doing it since the Patriot Act was passed, and there were no court orders or subpoenas obtained by the administration or the NSA until after the story was broken in May of 2006, and even then it took them a year to admit that they had to follow the law and obtain a court order for these phone records. Obama at least, has been getting the court orders and/or subpoenas through the courts from the get go. Now, tell me again who did more damage to your rights and freedoms? Because from where I sit, it was fuckin' GWB, hands down. Oh, and your knowledge of recent history sucks, dude. You think Bush did this? It appears this has never been done like this before. Usually they target certain groups or people Obama Expands Bush Data Mining Program [...]

    Like or Dislike: Thumb up 0 Thumb down 0

  77. Mikey says:

    @john personna: I actually find that less surprising than I did the Verizon order. Why? It’s in one of the slides displayed in the article–the backbone of the Internet flows through the U. S., and, as stated on the slide, traffic will take the least expensive path, not the most physically direct one. So internet traffic from Europe to Asia could flow through the U. S. and get scooped up here.

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  78. Spartacus says:

    @James Pearce (Formerly Known as Herb):

    One idea that I wish would just die a welcome, long-overdue death is this stuff about how private companies can do X to make money but –oh my god– it’s beyond the pale when the government does the very same thing to save lives.

    Again, the difference is that private companies will never use the info to put you in jail or make your life a living hell. While the govt might be using this info to save lives (that’s highly questionable), it also uses this info to convict people or force plea bargains from people on both terrorism charges as well as other crimes that have nothing to do with terrorism.

    Also, I may be wrong, but it would seem strange that the govt could get a warrant for this kind of search because a warrant is supposed to be issued only when the govt believes (1) a crime has been committed, and (2) evidence of the crime will be found in the area that’s being searched. In this instance, a crime hasn’t even been committed yet so there can’t be evidence of it. The govt is simply outright spying on its own people looking for information that could later be used against them.

    As for the argument that really our complaint is with Congress because they authorized the law, that’s not true. Our complaint is with both Congress and Obama because Obama is the one who promised transparency and protection of civil liberties. He didn’t say he’d be only as transparent and protective of civil liberties as the laws require him to be; he promised much more and he’s failed miserably on this issue.

    Like or Dislike: Thumb up 1 Thumb down 0

  79. Pharoah Narim says:

    @This: Of course. When terrorist incidents occur—people run around and Monday morning quarterback the Intelligence Community and talk about how the ball was dropped and dots weren’t connected. The IC has taken steps in the last decade to cover its ass and make sure the ball is easier to hold onto–and the dots are easier to connect. This is what is required when expectations of near zero failure is placed on a community of around 10,000 or so people. Either we get used to it or stop placing 100% responsibility to “keep up safe” on the government. I know there is a fine line to balance when you talk about citizens being vigilant of each other…but people need to be watching and reporting abnormal behavior or threatening behavior. Its either that or the alternative we are now learning about.

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  80. G.A.Phillips says:

    Yeah…turns out it was the same drunk that said Obamacare was Unconstitutional.
    As stupid as his avatar is ugly.

    What the hell are you talking about? Obama and everything about him is Unconstitutional.

    I’m stupid and you still support this lawless POS…ha!

    Like or Dislike: Thumb up 0 Thumb down 2

  81. [...] James Joyner has already written today about the revelation, first broken by Glenn Greenwald at The  Guardian, that the National Security Agency had been granted a Court Order requiring Verizon to turn over phone records for millions of its customers. In the hours since the story broke, the reactions have fallen into two basic categories. On the one side there is a somewhat surprisingly bipartisan group of liberals and conservatives who are expressing outrage at the entire idea that the Federal Government is scooping up vast amounts data about millions of Americans without having anything approaching even reasonable suspicion, never mind probable cause, that the data that they were requesting held any evidence of wrongdoing by those Americans. On the other side of the equation are people like Congressman Mike Rogers and Senator Diane Feinstein, both Chairs of the Intelligence Committees in the House and Senate who both said today that what was done in this case was both perfectly legal and necessary for the security of the United States. On the legality question, of course, they are entirely correct. The warrants that were used to obtain this data are authorized by the PATRIOT Act, which was passed overwhelmingly by Congress in the wake of the September 11th attacks, and the FISA Court that authorized the warrants has been in existence for decades now. As for the claims that this kind of data mining is necessary for the security of the United States, well that’s really a matter of opinion. Given that the Federal Government is never going to share with the public the classified information that would support that kind of claim, it’s left to the choice of each citizen to decide whether or not to believe the assurances of our political leaders when it comes to something that constitutes such a clear violation of individual privacy while simultaneously at least walking a fine line when it comes to the Fourth Amendment. [...]

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  82. [...] James Joyner of Outside the Beltway said it all depends upon whether or not the government is truly collecting mass amounts of data, or if they are using the court order to get around obtaining warrants to monitor specific individuals: [...]

    Like or Dislike: Thumb up 0 Thumb down 0

  83. [...] the NSA has copies of everyone’s phone records. And probably our credit card transactions, too. And goodness knows what else, since it’s all [...]

    Like or Dislike: Thumb up 0 Thumb down 0

  84. [...] Obama Expands Bush Data Mining Program (outsidethebeltway.com) [...]

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  85. john personna says:

    @Mikey: @john personna:

    Seriously? Another down-vote for straight reporting?

    uncomfortable truths I guess

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  86. john personna says:

    (not sure how that Mikey link jumped in there, sorry.)

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  87. G.A.Phillips says:

    Oh, and Sam since you must be so smart and pretty. I will just have to let you in on the fact that you called me stupid and attacked my comeliness because I made a joke about the Justice department judge shopping, that you did not get :)

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  88. Paul Hooson says:

    What I really admire about Outside The Beltway here is well-reasoned features like this. Some more merely political sites write their features backwards, starting with an ideology, looking for what facts can be used to fit within that ideology to make some purely political premise. Outside The Beltway is entirely different, looking to examine something for what it alone is, not really looking to advance some ideology in the process, but to advance knowledge about the subject. Bravo to Outside The Beltway!

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  89. HarvardLaw92 says:

    @Dave Schuler:

    how would you reconcile the Supreme Court’s finding in Kyllo v. United States with this practice?

    I’d point them towards Smith v. Maryland, and ask them to get back to me once they’d read it.

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