Saturday, December 24, 2005

This thing is enormous

SpyGate? PoliceStateGate? Whatever it is, it's going to be huge. I said earlier:

So perhaps they didn't get court approval for the simple reason that rather than wanting to tap specific individuals' communications, they just tapped us all - putting a tap directly on the internet backbone and siphoning off anything that hit certain keywords for review?

If this proves to be the case, there is no end to the shit they just stepped in.

Turns out I was right, but it's not the internet backbone, it's the telecommunications switching network.

First, here's the NYT:

The volume of information harvested from telecommunication data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the officials said. It was collected by tapping directly into some of the American telecommunication system's main arteries, they said.


The government's collection and analysis of phone and Internet traffic have raised questions among some law enforcement and judicial officials familiar with the program. One issue of concern to the Foreign Intelligence Surveillance Court, which has reviewed some separate warrant applications growing out of the N.S.A.'s surveillance program, is whether the court has legal authority over calls outside the United States that happen to pass through American-based telephonic "switches," according to officials familiar with the matter.

One outside expert on communications privacy who previously worked at the N.S.A. said that to exploit its technological capabilities, the American government had in the last few years been quietly encouraging the telecommunications industry to increase the amount of international traffic that is routed through American-based switches.

The growth of that transit traffic had become a major issue for the intelligence community, officials say, because it had not been fully addressed by 1970's-era laws and regulations governing the N.S.A. Now that foreign calls were being routed through switches on American soil, some judges and law enforcement officials regarded eavesdropping on those calls as a possible violation of those decades-old restrictions, including the Foreign Intelligence Surveillance Act, which requires court-approved warrants for domestic surveillance.

Historically, the American intelligence community has had close relationships with many communications and computer firms and related technical industries. But the N.S.A.'s backdoor access to major telecommunications switches on American soil with the cooperation of major corporations represents a significant expansion of the agency's operational capability, according to current and former government officials.

Now here's the Boston Globe:
And some legal scholars have maintained that a computer cannot violate other Americans' Fourth Amendment rights simply by sorting through their messages, as long as no human being ever looks at them.

Alane Kochems, a lawyer and a national security analyst at the conservative Heritage Foundation, said, ''I don't think your privacy is violated when you have a computer doing it as opposed to a human. It isn't a sentient being. It's a machine running a program."

But Yale Law School professor Jack Balkin said that Fourth Amendment privacy rights can still be violated without human contact if the NSA stores copies of everyone's messages, raising the possibility that a human could access them later. The administration has not revealed how long the NSA stores messages, and the agency has refused to comment on the program.

Balkin added that as technology becomes ever more sophisticated, any legal distinction between human agents and their tools is losing meaning. Under the theory that only human beings can invade people's privacy, he said, the police ''could simply use robots to do their dirty work."

I think what we're seeing is a case (not unprecedented) of technology leapfrogging existing laws. The capability to data-mine the types of electronic comms that these stories imply is potentially enormously valuable. Unfortunately, it's also enormously tempting. And I think it's clearly still illegal under existing laws. Modification to existing laws, dealing with the storage and use of information on US citizens, might make this technology usable in the current legal framework. But the people who are doing the spying don't think they need to explain or justify anything.

Do you want Dick Cheney to have the ability to snoop through the thought-processes of anyone he disagrees with? Because that's essentially what he's got now. And he doesn't think there's anything wrong with that.

Re-frame for Bush-Cultists: Do you think Hilary ought to be able to sift through the records of the Heritage Foundation, the Eagle Forum and the Concerned Women for American any time she takes a fancy to?


At 9:04 AM, Blogger jj mollo said...

C'mon. They've been doing this since J. Edgar Hoover was a boy. If they have the tools, it's impossible to stop them. They only protection you have is in the courts.


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