Warrantless Wiretapping, Part VI   Leave a comment

I’ve been posting a bit about this story in previous blog entries, but (conspicuously absent from the front pages of the Los Angeles Times and the New York Times) apparently the House and Senate have agreed on a compromise bill that effectively gives the Administration… everything they were demanding. Some “compromise”.

Text of the proposed legislation is available here. The ACLU weighs in with condemnation here. The EFF’s position is described here.

When this bill passes, as it undoubtedly will, I’ll post the list of blackguards and miscreants who voted to pass the bill here. Of course it will be challenged in court. I’m not sanguine about SCOTUS’s potential position here… about the only outlying hope I have is that the courts don’t like being told to mind their own business, thank you very much, so with luck in a year or two or three some challenge to this will make it to The Show and it will be overturned. Undoubtedly to the screams of “activist judges”.

I am bitterly, bitterly disappointed in Congress. This abdication of the balance of powers to the Executive branch simply makes no sense to me whatsoever. I do not understand how an Administration with an approval rating slightly better than sexually transmitted diseases can continue to score political victories against the opposing party. I’m offended that the Democratic candidate for President, who has a long standing public position of opposing this legislation, has not come out vociferously against this “compromise” bill.

There is simply no justifiable reason for this massive intrusion into the digital world. The government has demonstrated again and again that they are not capable of building reasonably secure systems that have this level of access, egregious misuse is inevitable – this is why we had a FISA court in the first place.

It’s very nearly official. It has been no secret that Big Brother had the capability before, but you soon will be able to state with certainty after this is passed… Big Brother is Watching You.

[edited to add]

Pelosi’s justification, via the Washingon Post story:

Leading Democrats acknowledged that the surveillance legislation is not their preferred approach, but they said their refusal in February to pass the version supported by the Bush administration paved the way for victories on other legislation, such as the war funding bill.

“When they saw that we were unified in sending that bill rather than falling for their scare tactics, I think it sent them a message,” said House Speaker Nancy Pelosi (D-Calif.). “So our leverage was increased because of our Democratic unity in both cases.”

Sorry, I don’t buy it. I understand that “compromise” can mean “give a little here to get a little there” outside the scope of a single piece of legislation. But you can’t publicly quote that as your justification while simultaneously misrepresenting this legislation, and claiming that you’re making a good trade-off.

But, Pelosi argued, the bill also firmly rejects President Bush’s argument that a war-time chief executive has the “inherent authority” on some surveillance activity necessary to fight terrorists. It restores the legal notion that the FISA law is the exclusive rule on surveillance.

From Wired, a rebuttal to that point:

Under the proposal, the intelligence community will be able to issue broad orders to U.S. ISPs, phone companies and online communications services like Hotmail and Skype to turn over all communications that are reasonably believed to involve a non-American who is outside the country. The spy agencies will not have to name their targets or get prior court approval for the surveillance.

[edited to add]

A well-written summary by Kevin Drum of why this whole bill, which has been buried under the whole “amnesty” argument, is a really, really bad idea.  From that piece:

Is this useful? Maybe. But we’re not listening in on al-Qaeda’s phone calls to America. We’re tapping the phones of anyone who fits a hazy and seldom accurate profile that NSA finds vaguely suspicious, a profile that inevitably includes plenty of calls in which one end is a U.S. citizen. But the new FISA bill doesn’t require NSA to get a warrant for any of these individuals or groups, it only requires a FISA judge to approve the broad contours of the profiling software. This raises lots of obvious concerns:

  • The algorithms that determine NSA’s profiles are almost certainly extremely complex and technical — far beyond the capability of any lawyer to understand. So who gets to decide which algorithms are legitimate and which ones go too far? NSA’s computer programmers?

  • What happens to the information that’s collected on the tens of thousands of people who turn out to be innocent bystanders? Is it kept around forever?

  • Is this program limited solely to international terrorism? Are you sure? If it works, why not use it to fight drug smuggling, sex slave trafficking, and software piracy?

  • Since this program was meant to be completely secret, what mechanism prevents eventual abuse? Because programs like this, even if they’re started with the best intentions, always get abused eventually.

The oversight on this stuff is inherently weak. After all, no court can seriously evaluate algorithms like this and neither can Congress. They don’t have the technical chops. Do the algorithms use ethnic background as one of their parameters? Membership in suspect organizations? Associations with foreigners? Residence in specific neighborhoods? Nobody knows, and no layman can know, because these things most likely emerge from other parameters rather than being used as direct inputs to the algorithm.

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Posted June 20, 2008 by padraic2112 in politics, security

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