ACLU plan for restoring U.S. civil rights

Day one steps are closing Guantanamo Bay, ceasing and prohibiting torture, ceasing and prohibiting extraordinary rendition; steps for the first 100 days include ending warrantless spying, watch lists, the Ashcroft doctrine on FOIA requests, monitoring of activists, the Real ID Act, the abortion gag rule, the death penalty, and faith-based initiatives.

At least one of Obama's transition teams is, at the very least, reviewing Bush's executive orders for constitutionality, which covers some elements of the above. Most, however, have been implemented by act of Congress, which will require Congressional action to repeal.

EFF sues the NSA, Bush, Cheney, Addington, etc.

The Electronic Frontier Foundation has filed Jewel v. NSA to try another tactic in stopping unconstitutional warrantless wiretapping of U.S. residents. Their previous lawsuit against AT&T, Hepting v. AT&T, is still in federal court as the EFF argues with the government over whether the telecom immunity law passed by our spineless Congress is itself constitutional or applicable to the case.

Jewel v. NSA names as defendants the National Security Agency, President George W. Bush, Vice President Dick Cheney, Cheney's chief of staff David Addington, former Attorney General Alberto Gonzales, and "other individuals who ordered or participated in warrantless domestic surveillance."

Expert tells China visitors to encrypt data as U.S. announces policy of laptop seizure

I saw two articles this morning which I think invite comparison. First, Phil Dunkelberger, CEO of PGP Corporation, says people visiting China should take laptops with no data, or encrypt what data they have:

Travelers carrying smart cell phones, blackberries or laptop computers could unwittingly be offering up sensitive personal or business information to officials who monitor state-controlled telecommunications carriers, Dunkelberger said.

He said that without data encryption, executives could have business plans or designs pilfered, while journalists' lists of contacts could be exposed, putting sources at risk.

Dunkelberger said that during unrest in Tibet in March, overseas Tibetan activists found their computer systems under heavy pressure from Chinese security agencies trying to trace digital communications.

"What the Chinese tried to do was infiltrate their security to see who in China the Tibet movement was talking to," he said.

...

Dunkelberger, whose firm serves many multinational corporations operating in China, said, "A lot of places in the world, including China, don't have the same view of personal space and privacy that we do in the United States."

"You've got to suspect that every place you're doing work is being monitored and being watched," he said.

Dunkelberger's advice is good as far as it goes. Of course, PGP Whole Disk Encryption won't help protect data in transit, and while PGP Email will protect the content of email messages, it won't conceal the source and destination. The threat described is one where traffic analysis enough can reveal a lot, and so you'd want to make use of a corporate VPN, some kind of proxy, or a system like TOR if you want to protect information about where your Internet traffic is ultimately going. PGP is a good company that makes great products; my employer uses PGP Whole Disk Encryption and Email products.

The second article, however, casts some doubt on the last part of what Dunkelberger says. It looks like the U.S., where the NSA engages in warrantless wiretapping with the assistance of the large incumbent telecoms (and a spineless Congress gives them immunity for violations of the law), the CIA spies on foreign visitors within the borders of the U.S. in conjunction with the FBI's counterintelligence division, isn't so different from other countries. It's now publicly admitted by DHS that Immigrations and Customs Enforcement officers have the right to seize laptops and other electronic devices from people entering the U.S. and hang on to them indefinitely in order to search them. Therefore Dunkelberger's advice should be taken by anyone coming into the U.S., as well--use blank laptops or laptops with encryption only. Some companies have begun to only allow employees to have a web browser and a VPN client on their laptops, and keep all data in the corporation, which can completely eliminate this particular governmental risk.

Netroots and telecom

There's a telecom panel at the Netroots Nation conference today on the subject of "Big Telecom: An Emerging Threat to Our Democracy?" The implied answer is yes, and it appears that every participant on the panel will be making that case. Here's the description of the panel:

Massive telecom companies control virtually all of our voice and internet communications these days—and new evidence shows a near-total lack of commitment to our democracy. AT&T has proposed filtering all content traveling on its network. Verizon tried initially to block NARAL's pro-choice text messages. Most telecom companies are fighting net neutrality. Can democracy survive an assault by those who control the tubes?

The panel members don't include anyone with any experience managing or operating an actual telecom network, but instead includes two people who have repeatedly demonstrated not only an ignorance of telecom law, technology, and policy, but who have misrepresented facts and failed to engage with the arguments of their critics, Matt Stoller and Timothy Karr (see posts on this blog in the "net neutrality" category). The closest person to a representative of a telecom is Michael Kieschnick of Working Assets, a company that is a reseller of long distance and wireless service on Sprint's network.

I agree with many of their positions--I don't think ISPs should be allowed to block websites on the basis of disagreement with content. I think ISPs should be transparent about their network management processes and filtering. Where I disagree with them is that they advocate that the FCC step in to regulate the Internet in a way that it has never had authority to do so before, and demand that network operators not be allowed to implement classes of service with different rates of charges, or even usage caps. Art Brodsky expresses the point which has also been made by Robb Topolsky of Public Knowledge, Timothy Karr of Free Press, and Matt Stoller:

In the name of "network management," some companies want to throttle down the use of legal applications, like BitTorrent which may, coincidentally, provide competition in entertainment programming. They want to impose usage caps across the board on all customers which would stifle innovation and curb the use of video (there's that anti-competitive meme again) without actually solving the problem of the so-called "bandwidth hogs." The way caps are being discussed now, they would only lead to higher prices and less usage for an industry that already charges more for less than most broadband providers around the world. Parts of our broadband industry may be the only sector in the world that wants to cut down the amount of its product it wants customers to use.

Brodsky's last sentence is clearly false--broadband is like a fixed-price all-you-can-eat buffet. All businesses want to maximize their profits by maximizing revenue and minimizing costs. When bandwidth is sold at a fixed cost in unlimited amounts, where a small number of users are consuming the majority of the service, it's in the business's interest to restrict those users or charge them more for what they consume in order to satisfy the rest in a cost-effective manner. The options are few--you can either restrict the "bandwidth hogs" in some way, charge them more so that they pay for what they use, or raise the price for everyone. These guys seem to advocate the latter approach, while I'm in favor of allowing all the options to be used in a competitive market. Where I disagree with Comcast's approach in issuing RST packets to block BitTorrent traffic is not that they did it, but that they were not transparent about what they were doing (and apparently didn't quite get it quite right--it should not have completely broken BitTorrent, but only slowed it down).

Brodsky's suggestion that Comcast has an interest in blocking BitTorrent because it provides competition in the entertainment space is absurd--they have an interest in blocking it because it's a very popular application which itself exploits Internet protocols in a way not anticipated by the designers in order to consume more bandwidth, getting around the congestion controls in TCP/IP by using multiple TCP streams. If BitTorrent traffic wasn't filling up the majority of Comcast's bandwidth, they'd have no interest in it, except when the MPAA and RIAA issue them subpoenas about their users infringing copyrights.

If the government prohibits the use of differential classes of service (which is already heavily used by private companies to give priority to applications within their enterprise which have requirements for low latency and jitter, such as real-time streaming audio and video, including Voice over IP) and requires that congestion be dealt with by building out infrastructure sufficiently that there will never be congestion no matter how many users max out their connectivity with BitTorrent, that will reduce competition by culling smaller companies out of the picture and making market entry more difficult. In any environment where a provider's upstream capacity is less than the sum of the capacity to every customer (and that's everywhere, today, and always has been), all-you-can-eat bandwidth is like a commons. The more that is available, the more the heavy users will consume, to the detriment of each other and the light users. Without setting caps and having tiered pricing or implementing technology that prioritizes packets and drops from the heavy users and from less-realtime-sensitive applications first (like BitTorrent), there are no incentives against consuming everything that is available.

I also think it's a huge mistake to have the FCC start regulating the Internet. FCC chairman Kevin Martin would no doubt love to place indecency standards and filtering requirements on Internet content. Once you open the door to FCC regulation of the Internet, that becomes more likely. And the FCC has been completely ineffectual at dealing with existing abuses like fraudulent telemarketing, illegal prerecord calls to residences and cell phones, caller ID spoofing, etc., already covered by statute and regulation. I'd rather see clear statutes that include private rights of action than entrust control of the Internet to the FCC. The FCC is a slow-moving bureaucracy, and AT&T and Verizon have the deepest pockets, the most lawyers, and the most personnel who have shuffled back and forth between government (including the NSA) and industry. That gives AT&T and Verizon the tactical advantage, and leads to less competition rather than more.

Which brings me to the warrantless wiretapping and telecom immunity issues, which Cindy Cohn of the EFF no doubt addressed on the Netroots Nation panel. I suspect I have little if any disagreement with her. I've long been a supporter of the EFF, as are many people involved in the management of ISPs. I strongly oppose telecom immunity for warrantless wiretapping, a complete abdication of Congress' responsibility to support the U.S. Constitution. But this shows the power of AT&T and Verizon. Not only did they get what they wanted, but the very infrastructure which was built to do this massive interception of traffic for the NSA and for law enforcement interception under the CALEA laws was built for them with assistance from government funds. All telecoms have to be compliant with CALEA (now including VoIP and broadband Internet providers), but the big incumbents who were most capable of affording it on their own got it at the lowest costs, while their competition was required to build it out at their own expense even if it never gets used.

But there are legitimate uses for deep packet inspection, for understanding the nature of the traffic on a network for management purposes, including tracking down security and abuse issues. Since it is in the hands of the end user to use encryption to protect sensitive content, I think use of DPI by network providers is reasonable for the purposes of providing better service in the same way that it's reasonable for a voice provider to intercept traffic for quality measurement purposes. It's also reasonable for interception to occur for "lawful intercept," but it should always require a court order (i.e., both executive and judicial branch approval) on reasonable grounds. The difficulty of obtaining wiretaps depicted in the television program "The Wire" is how it should be.

I've written a lot on these issues, much which can be found in this blog's Network Neutrality Index.

If any reader of this blog happens to have attended the Netroots Nation telecom panel or comes across a description of its content, please point me to it, as I'd like to see what was said. I don't have high hopes for the accuracy or reasonability of statements from Stoller and Karr, but I could be surprised, and the other panelists probably had interesting and important things to say.

(See my Blogger profile for the disclosure of my employment by Global Crossing, which is currently listed by Renesys as the #3 network provider on the Internet in terms of number of customers, ahead of AT&T and Verizon, behind Sprint and Level 3.)

UPDATE: The "Big Telecom" panel was live-blogged (dead, unarchived link: http://openleft.com/showDiary.do;jsessionid=C865142FFB85E14AAD27045B9A342B15?diaryId=7032"). Stoller's anecdote about the Bill of Rights on metal is referring to Dean Cameron's "security edition" of the Bill of Rights, which was also promoted by Penn Jillette.

Another liar as Attorney General

Ed Brayton at Dispatches from the Culture Wars reports on some recent statements by Attorney General Michael Mukasey during a speech about political corruption, in which he lied about FISA's impact on wiretapping, falsely claiming that FISA law had to be violated because it would require the methods of wiretapping being used to be discussed in open court.

The mainstream media seems to be mostly giving him a pass on his falsehoods.

UPDATE (April 5, 2008): Glenn Greenwald uncovers more evidence that Mukasey is a liar, fabricating pre-9/11 events that didn't happen.

NSA's data mining and eavesdropping described

The March 10 Wall Street Journal contains a fairly detailed description of the data mining operation being run by the NSA. The program described is more data mining than eavesdropping, though it does involve the collection of transactional data like call detail records for telephone calls, and intercepted Internet data like web search terms and email senders and recipients. Also included is financial transaction data and airline data. I think most of this had already been pieced together, but this is a fairly comprehensive summary in one place. The WSJ story reports that leads generated from the data mining effort are then fed into the Terrorist Surveillance Program, which does warrantless eavesdropping. (An earlier version of this post incorrectly referred to the whole operation as the Terrorist Surveillance Program.)

More InfraGard FUD and misinformation

Gary D. Barnett, president of a financial services firm in Montana, has written an article about InfraGard for The Future of Freedom Foundation, apparently inspired by the Progressive article. Thankfully, he avoids the bogus "shoot to kill" claims, but he introduces some erroneous statements of his own. It's apparent that he didn't bother speaking to anyone in InfraGard or doing much research before writing his article, which is another attempt to spread fear, uncertainty, and doubt about the program.

Barnett first goes wrong when he writes:

InfraGard’s stated goal “is to promote ongoing dialogue and timely communications between members and the FBI.” Pay attention to this next part:

Infragard members gain access to information that enables them to protect their assets and in turn give information to government that facilitates its responsibilities to prevent and address terrorism and other crimes.

I take from this statement that there is a distinct tradeoff, a tradeoff not available to the rest of us, whereby InfraGard members are privy to inside information from government to protect themselves and their assets; in return they give the government information it desires. This is done under the auspices of preventing terrorism and other crimes. Of course, as usual, “other crimes” is not defined, leaving us to guess just what information is being transferred.

First, there isn't a "distinct tradeoff." There is no "quid pro quo" required of InfraGard members. All InfraGard members get the same access to bulletins as the others, regardless of whether they share information back. There are some specific sector-oriented subgroups that share information only with each other (and such private groups also exist independently of InfraGard, such as the sector Information Sharing and Analysis Centers, or ISACs). The FBI may come to a company from time to time with specific threat information relevant to them (I've seen this happen once with respect to my own company), but that happens whether a company is a member of InfraGard or not. (Where InfraGard membership might give added benefit is that the FBI knows that the InfraGard member has undergone some rudimentary screening. There are companies that are set up and run by con artists, as well as by foreign intelligence agents, believe it or not, and where there is apparent risk of such a setup, the FBI is obviously going to be less forthcoming than with somebody they already know.)

Second, "not available to the rest of us" suggests that InfraGard membership is difficult to come by. It's not. I suspect Mr. Barnett himself could be approved, as could whoever does IT security for his company.

Third, there's no need to guess about the "other crimes." The FBI's own priority list tells you:

1. Protect the United States from terrorist attack. (Counterterrorism)
2. Protest the United States against foreign intelligence operations and espionage. (Counterintelligence)
3. Protect the United States against cyber-based attacks and high-technology crimes. (Cyber crime)
4. Combat public corruption at all levels.
5. Protect civil rights.
6. Combat transnational/national criminal enterprises.
7. Combat major white collar crime.
8. Combat significant violent crime.
9. Support federal, state, local, and international partners.
10. Upgrade technology to successfully perform the FBI's mission.

Some might question this list, in particular #5, on the basis of the FBI's past record, but my interactions with law enforcement lead me to believe that there are many who do take #5 quite seriously and would challenge and speak out against actions contrary to it. I was at an InfraGard conference in New Mexico yesterday at which an exchange occurred that went something like this:

Me: I work for a global telecommunications company.
He: You're not one of those companies that's been eavesdropping on us, are you?
Me: No.
He: Good.

"He" was a member of New Mexico's InfraGard--and a member of law enforcement. I'll have more to say about warrantless wiretapping in a moment.

The real issue with this list is that the top two are probably misplaced, and 6-8 (and #10!) have been suffering, as I've previously written about.

Barnett goes on:

Since these members of InfraGard are people in positions of power in the “private” sector, people who have access to a massive amount of private information about the rest of us, just what information are they divulging to government? Remember, they are getting valuable consideration in the form of advance warnings and protection for their lives and assets from government. This does not an honest partnership make; quite the contrary.

There are several key ways in which private industry helps the FBI through InfraGard. One is securing their own infrastructure against attacks so that it doesn't create a problem that the FBI needs to devote resources to. Two is by bringing criminal issues that are identified by private companies to the attention of the FBI so that it can investigate and bring prosecutions. Three is by assisting the FBI in its investigations by explaining what evidence that requires technical skills to understand means, and giving them guidance in how to successfully track down criminals.

Barnett goes on to talk about Rep. Jane Harman's bill in Congress, HR1955/S.1959, which I've also briefly commented on at this blog, and makes some significant errors of fact. He writes this this bill "if passed, will literally criminalize thought against government." That's false--the bill doesn't criminalize anything, it just creates a commission that will write a report and make recommendations. That commission has no law enforcement powers of any kind, not even the power of subpoena. Barnett also mistakenly thinks that this bill contains a reference to InfraGard. He writes:

S.1959, if passed, will be attached to the Homeland Security Act and InfraGard is already a part of the Department of Homeland Security. This is not a coincidence. Under section 899b of S.1959 it is stated:

Preventing the potential rise of self radicalized, unaffiliated terrorists domestically cannot be easily accomplished solely through traditional Federal intelligence or law enforcement efforts, and can benefit from the incorporation of State and local efforts.

This appears to be a direct reference to the InfraGard program.

The reference to "the incorporation of State and local efforts" into "traditional Federal intelligence or law enforcement efforts" in counterterrorism contains no reference to private partnerships, only to combining law enforcement efforts at federal, state, and local levels. This is a reference to what are called "fusion centers," like the Arizona Counter-Terrorism Information Center (ACTIC). The people who work in those centers are people from government agencies (at the federal, state, and local levels) with government security clearances. InfraGard in Phoenix does partner with ACTIC, which in practice means that ACTIC representatives give presentations to InfraGard (all of which I believe have also been open to the general public), ACTIC shares threat information with InfraGard much like the FBI does, and that InfraGard members are encouraged to report potential terrorist tip information to ACTIC. (ACTIC also encourages the general public to do this, which I think is far more likely to waste resources than identify any actual terrorists.)

Note that Barnett is mistaken when he writes that InfraGard is part of the Department of Homeland Security. InfraGard is not a government agency or part of a government agency--it is a non-governmental organization, or actually a collection of non-governmental organizations, which are 501(c)(3) nonprofits, with leadership provided by board members who are InfraGard members. Each chapter has a coordinator from the FBI who is not on the board. The FBI provides guidance and suggestions, but the organizations are run by the boards.

Now Barnett goes into Matt Rothschild territory when he writes: "I’m just speculating, of course, but is it possible that InfraGard will be a domestic police and spying arm for the government concerning “thought crime”?" It's not just speculation, it's uninformed speculation. InfraGard is not part of government and has no police powers of any kind. I've previously addressed the degree to which I think the "spying" is a risk--I think it's relatively low, but worth talking about.

Barnett continues in a Rothschild vein when he says "InfraGard, on the other hand, is an organization cloaked in secrecy. It holds secret meetings with the FBI." This talk of InfraGard being "cloaked in secrecy" is grossly exaggerated. The group has fairly open membership and most meetings are open to the public. When there are meetings restricted to membership, those typically wouldn't be accurately described as "secret meetings with the FBI." I and other members of InfraGard have had private meetings with FBI agents with respect to particular investigations, but it would be inaccurate to describe those as "InfraGard meetings." Law enforcement by its very nature requires a high degree of confidentiality for ongoing investigations, but it is a mistake to infer that this means conspiratorial plotting or spying.

Towards the end of his article, Barnett talks about warrantless wiretapping, telecom immunity, and the secrecy of InfraGard membership:

Considering the recent attempts by President Bush and his administration to protect many telecommunications companies and executives from prosecution for releasing private information, how many of the top telecom executives are members of InfraGard? I, for one, would be very interested in this information, but alas, it is not public information; it is secret.

What's the sense in which InfraGard membership is secret? Only in that it's not made available to the general public. Barnett writes that "no one outside InfraGard is to know who is a member unless previous approval has been given," but this is his misinterpretation of a guideline he quotes, not what it says. There's nothing prohibiting an InfraGard member from identifying themselves as such, only from identifying others as such without their consent. And if you're going to speak on behalf of InfraGard, you need to get approval from the organization first. (And note that I'm not speaking on behalf of InfraGard here, and have had no approval from InfraGard for what I've written on my blog.) If you're an InfraGard member, you have access to the online directory of InfraGard members. If Barnett is really interested in knowing who is a member, all he has to do is join.

As for "how many of the top telecom executives are members of InfraGard," I haven't looked, but I would be willing to wager that the answer is none. I know that none of the members of the "Senior Leadership Team" of my company are members of InfraGard, though my boss, our VP of Global Security, heads the Rochester, NY chapter of InfraGard. Senior executives of large corporations don't have time or interest to belong to InfraGard, and it's not really geared to them, as opposed to members of their physical and IT security organizations.

And as for warrantless wiretapping (I said I'd get back to it), InfraGard has nothing to do with that and it's foolish to think that it would. That activity has involved direct relationships between incumbent telecom providers (AT&T certainly, and probably Verizon as well) and the National Security Agency, with information restricted to employees holding government security clearances on a "need to know" basis, as the ACLU and EFF lawsuits have revealed. These relationships also probably include commercial relationships, and have included movement of personnel from one to the other--for example, AT&T has a Director of Government Solutions who came from the NSA. InfraGard members, many if not most of which hold no government security clearances, are not in the loop on that activity. (For that matter, I suspect few FBI personnel are in the loop on that, either.)

I find it discouraging that articles like Barnett's are written and published. Such inaccurate information serves to distract from real issues and real government abuses and to discredit those who repeat it, when they have other things to say that are worth hearing, paying attention to, and acting upon. I hope that Barnett and FFF will strive for greater accuracy in the future.

Spies who love you

Mark Fiore helps teach kids about the importance of warrantless wiretapping.

(Hat tip to Bob Hagen.)

FBI Wiretaps Dropped Due to Unpaid Bills

Today's Washington Post reports:

The FBI, which has had trouble keeping track of its guns and laptops, also has a chronic problem paying its phone bills on time, according to audit results released today.

Telephone companies have repeatedly cut off FBI access to wiretaps of alleged terrorists and criminal suspects because of the bureau's failure to pay its bills, the audit found.

The report by Justice Department Inspector General Glenn A. Fine also found that more than half of the nearly 1,000 telecommunications bills reviewed by investigators were not paid on time, including one invoice for $66,000 at one unidentified field office.

...

The report identified one case in which an order obtained under the Foreign Intelligence Surveillance Act -- which covers clandestine wiretaps of terrorism and espionage suspects -- was halted because of "untimely payment."

The FBI says the problem is caused by an outdated financial management system and is working to fix it. The same Post article also points out that an examination of the backgrounds of the 35 employees with access to FBI funds used to pay for expenses for undercover investigations "found that half had personal bankruptcies or other financial problems" and one FBI telecommunications specialist pleaded guilty to "stealing more than $25,000 intended for telephone services."

The article concludes by observing that Congress is still divided over the issue of granting retroactive immunity to telecoms that have engaged in illegal wiretapping for government surveillance programs and that the most recent extensions of the foreign wiretap law from last summer expire at the beginning of February.

Chinese intelligence was translating for the NSA

The Washington Times reported on December 21 that several years ago, Chinese intelligence successfully subverted the National Security Agency in Hawaii. First, by creating a company based in Hawaii to do Chinese translations which successfully obtained government contracts with the NSA to translate intercepted Chinese communications. The intercepted communications included sufficient information to identify the sources, giving the Chinese the ability to control what information was obtained by the NSA either by preventing significant information from being carried over by the compromised channel or by introducing disinformation.

This shows one of the problems that faces a world superpower whose own language is commonly used and which does little or nothing to encourage its citizens to learn other languages. Understanding communications in other languages require the assistance of translators who may be working for the enemy, and the enemy can almost get away with speaking freely anywhere while being overheard, since the likelihood of comprehension is so small. The more communications you need translated, the more translators you need, and the greater the likelihood of compromise.

UPDATE (January 2, 2008): Noah Schachtman at Wired and Jeffrey Carr at IntelFusion cast some doubt on this story.

Nacchio says government punished Qwest for noncooperation on eavesdropping

Former Qwest CEO Joseph Nacchio, found guilty of insider trading in April, is claiming in his appeal that part of the reason Qwest stock dropped in value is that the NSA cancelled some lucrative contracts with the company as punishment for its failure to cooperate in illegal warrantless wiretapping (unlike AT&T and Verizon).

The Bush administration is pushing for retroactive immunity to be granted to AT&T and Verizon for its participation in these unconstitutional programs by threatening to veto any surveillance bill that doesn't include such immunity. If the Democrats were smart, they'd go ahead and send him a surveillance bill without the immunity, and then criticize him when he vetoes it for taking action that is going to kill Americans.

Bush says FISA law change is just advisory

The Bush administration, commenting on Congress' expansion of the Executive branch's warrantless wiretapping powers without needing approval of the FISA Court, says that the legislation is "just advisory. The president can still do whatever he wants to do."

Constitution? What Constitution?

(Via Talking Points Memo.)

Lying at the Weekly Standard

Julian Sanchez points out the staggering misrepresentation by those arguing that the recent increase in wiretapping power amounts to nothing more than an update of FISA procedures to reflect current technology.

(Hat tip to Tim Lee at the Technology Liberation Front.)

Congress approves expansion of presidential wiretapping powers

Both houses of Congress have passed a bill that updates the Foreign Intelligence Surveillance Act (FISA) to allow warrantless wiretapping when at least one party is a foreigner, without any requirement that the foreigner be suspected of having connections to terrorists. Wiretaps in such cases do not require approval of the FISA court, only of the attorney general and the director of national intelligence. As Tim Lee at Technology Liberation Front observes:

So let me get this straight: the White House says “we think we should be able to eavesdrop on virtually any domestic-to-foreign phone call without court oversight, based on the say-so of one of the president’s subordinates.” And the Democrats response was “Hell no! Warrantless spying should require the say-so of two of the president’s subordinates!”

Arizona's Congressmen voted along party lines except for Harry Mitchell, who sided with the Republicans in favor of the bill, which provides for this expansion of powers for the next six months. (UPDATE, August 8, 2007: Actually, McCain didn't vote on this bill at all, it's another of his no-shows.)

Kudos to Pastor, Grijalva, and Giffords for voting against this.

(Hat tip to Technology Liberation Front and Stranger Fruit.)

UPDATE (August 7, 2007): Ed Brayton at Dispatches from the Culture Wars has more on how this bill has gutted any oversight of what the Executive branch is doing.

Did Cheney send Gonzales and Card to Ashcroft's hospital room?

The New York Times editorialized that vice president Dick Cheney was the person who sent then White House counsel Alberto Gonzales and chief of staff Andrew Card to the hospital bedside of Attorney General John Ashcroft to try to get him to reauthorize the warrantless wiretapping program that the acting Attorney General James Comey and many Department of Justice staff (including Comey and FBI Director Robert Mueller) threatened to resign over.

Larry King asked Cheney about it, and his response is that he had no recollection of such an event, and besides, he didn't read the New York Times editorial. Sounds like a lie to me, and Larry King seems to suggest he thinks so as well.

Talking Points Memo thinks they've identified a Cheney "tell." (And no, it's not just that his lips are moving...)

Ashcroft refused to reauthorize warrantless wiretapping program

There's now much discussion in the blogosphere about former Deputy Attorney General James B. Comey's testimony before Congress. Comey related that in 2004, the warrantless wiretapping program had come up for reauthorization--the previous authorization was due to expire the following day. Comey, filling in for Attorney General John Ashcroft, who was in the hospital for emergency gall bladder surgery, refused to sign Bush's order for reauthorization. Bush secretly sent his White House Counsel Alberto Gonzales and Chief of Staff Andrew Card to Ashcroft's hospital bedside to get his signature, but an aide to Ashcroft tipped off Comey. Comey rushed to the hospital, and obtained from FBI Director Robert Mueller a directive to Ashcroft's security staff to not remove Comey even if Gonzales and Card insisted upon it.

At the hospital, Ashcroft also refused to sign the reauthorization directive. Comey related that the entire senior staff of the Department of Justice, including himself and FBI Director Mueller, were prepared to resign over the issue. Had that happened--in an election year, no less--perhaps the outcome of that election would have been different.

Bush consulted directly with Comey and Mueller, and gave them assurances that the program would be modified to comply with Department of Justice recommendations, and Comey signed the reauthorization several weeks later. It's not clear whether it continued to operate without authorization for that period of weeks.

A Talking Points Memo reader comments:

When the warrantless wiretap surveillance program came up for review in March of 2004, it had been running for two and a half years. We still don't know precisely what form the program took in that period, although some details have been leaked. But we now know, courtesy of Comey, that the program was so odious, so thoroughly at odds with any conception of constitutional liberties, that not a single senior official in the Bush administration's own Department of Justice was willing to sign off on it. In fact, Comey reveals, the entire top echelon of the Justice Department was prepared to resign rather than see the program reauthorized, even if its approval wasn't required. They just didn't want to be part of an administration that was running such a program.

This wasn't an emergency program; more than two years had elapsed, ample time to correct any initial deficiencies. It wasn’t a last minute crisis; Ashcroft and Comey had both been saying, for weeks, that they would withhold
approval. But at the eleventh hour, the President made one final push, dispatching his most senior aides to try to secure approval for a continuation of the program, unaltered.

...

I think it’s safe to assume that whatever they were fighting over, it was a matter of substance. When John Ashcroft is prepared to resign, and risk bringing down a Republican administration in the process, he’s not doing it for kicks. Similarly, when the President sends his aides to coerce a signature out of a desperately ill man, and only backs down when the senior leadership of a cabinet department threatens to depart en masse, he’s not just being stubborn.

It’s time that the Democrats in Congress blew the lid off of the NSA’s surveillance program. Whatever form it took for those years was blatantly illegal; so egregious that by 2004, not even the administration’s most partisan members could stomach it any longer. We have a right to know what went on then. We publicize the rules under which the government can obtain physical search warrants, and don’t consider revealing those rules to endanger security; there’s no reason we can’t do the same for electronic searches. The late-night drama makes for an interesting news story, but it’s really beside the point. The punchline here is that the President of the United States engaged in a prolonged and willful effort to violate the law, until senior members of his own administration forced him to stop. That’s the Congressional investigation that we ought to be having.

Jacob Sullum at Reason observes that Tony Snow's response to Comey's testimony (quoted in the New York Times) amounts to "the administration's position is that the program was always legal, became a little more legal after the changes demanded by Ashcroft, and is even more legal now."

UPDATE (May 17, 2007): The DOJ says Gonzales has no desire to modify or retract his statement in Congressional testimony that the warrantless wiretap program raised no controversy within the Bush administration, even though that is clearly contradicted by the above account.

FURTHER UPDATE (May 17): TPM Muckraker has gotten to the bottom of why this came to a head on March 10, 2004. The program had to be reauthorized by the Attorney General every 45 days, which Ashcroft had been signing off on. In June 2003, John Yoo left his position as Deputy Director of the Office of Legal Counsel. On October 3, 2003, Jack L. Goldsmith was confirmed by the Senate as the Assistant Attorney General for the OLC, and on December 11, 2003, James Comey was confirmed as Deputy Attorney General. Comey was authorized to have access to information about the warrantless wiretap program, and he put Goldsmith to work reviewing "what [Goldsmith] considered shaky legal reasoning in several crucial opinions, including some drafted by Deputy Assistant Attorney General John Yoo," to quote The New York Times. Comey brought his evidence to Ashcroft a week before the reauthorization date, and they both agreed that it could not continue as it had been. Now that the been reviewed by lawyers in the DOJ for the first time, it was found to be severely problematic, and neither was willing to reauthorize it.

Bush reauthorized it on March 11, 2004 without Attorney General approval, which led to threatened resignations from Ashcroft, Comey, Mueller, and others, at which point parts of the program were suspended and a DOJ audit of the program commenced.

As TPM Muckraker summarizes:

The warantless wiretap surveillance program stank. For two and a half years, Ashcroft signed off on the program every forty-five days without any real knowledge of what it entailed. In his defense, the advisors who were supposed to review such things on his behalf were denied access; to his everlasting shame, he did not press hard enough to have that corrected.

When Comey came on board, he insisted on being granted access, and had Goldsmith review the program. What they found was so repugnant to any notion of constitutional liberties that even Ashcroft, once briefed, was willing to resign rather than sign off again.

So what were they fighting over? Who knows. But there’s certainly evidence to suggest that the underlying issue was was whether constitutional or statutory protections of civil liberties ought to be binding on the president in a time of war. The entire fight, in other words, was driven by the expansive notion of executive power embraced by Cheney and Addington. And here's the kicker - it certainly sounds as if the program was fairly easily adjusted to comply with the law. It wasn't illegal because it had to be; it was illegal because the White House believed itself above the law.

Ron Paul in Phoenix

Last night I attended a small event where Rep. Ron Paul (R-TX) spoke about his candidacy for president as a Republican. I found it a bit of a disappointment. On the plus side, he is making opposition to both the drug war and the war in Iraq a major part of his campaign. He also opposes warrantless wiretapping, the USA PATRIOT Act, and the Military Commissions Act. And in response to a question from one of several atheists present, he indicated his support for the separation of church and state (and opposition to Bush's faith-based initiatives). On the minus side, his stance on illegal immigration is to "secure the border," deny benefits to illegal immigrants, and eliminate birthright citizenship. New Mexico Gov. Bill Richardson's stance on illegal immigration (double Border Patrol officers, implement a guest worker program, and provide a mechanism for illegal immigrants to pay a fine and become legal residents) makes a whole lot more sense than that. Also on the minus side, as Sameer Parekh has pointed out at his blog, his stance on free trade is to oppose anything that he sees as a compromise on free trade (like major free trade agreements), which makes him look like he's pandering to protectionists--his web page makes no indication that he support free trade, which strikes me as dishonest.

Nutjob Arizona State Senator Karen Johnson was there, and she asked a question about Bush's "stealth campaign" to establish a North American Union; Paul responded that he opposes creation of such an entity and a common currency for such an economic area (the "amero"). This is going into WorldNetDaily and Alex Jones conspiracy theorist territory, conflating the Security and Prosperity Partnership of North America (a meeting between the three heads of state to increase economic cooperation) with the ideas of Robert Pastor, a professor at American University, about creating a political union. If the EU can't approve a Constitution (with France and the Netherlands rejecting it) and still has holdouts on the euro (Britain and Norway), how likely is it that countries as different as the U.S., Mexico, and Canada would combine into a single political entity?

I'm glad Ron Paul has provided a consistent voice in Congress against the war in Iraq and erosion of our civil liberties in the name of the global war on terror, but I'm afraid he probably wouldn't make a very good president (though I did make a small contribution to his campaign which I'm feeling some buyer's remorse for this morning). My preference is to see a Democratic president and split control of Congress--gridlock seems to be the most effective way of achieving economic growth and slowing the erosion of our civil liberties.

UPDATE (April 12, 2007): The argument that Paul makes about illegal immigration--that we should stop it because of the impact on welfare--is aptly turned on its head in this post from last year at David Friedman's blog.

UPDATE (February 11, 2008): Here's a debunking of a number of Ron Paul claims, including the NAFTA superhighway.

Global Crossing criticizes wiretapping rules

News.com has a nice article about how Global Crossing (my employer) has criticized the extension of CALEA wiretapping rules to VoIP and broadband:

Paul Kouroupas, vice president of regulatory affairs for Global Crossing, strongly criticized the Federal Communications Commission's broadening of a 1994 law--originally intended to cover telephone providers--as disproportionately costly, complex, and riddled with privacy concerns. His company is one of the world's largest Internet backbone providers.

"Our customers are large Fortune 500 companies--not too many of those companies are conducting drug deals or terrorist activities out of Merrill Lynch's offices or using their phones in that way," Kouroupas said at an event here sponsored by the DC Bar Association. "By and large we don't get wiretap requests, yet we're faced with the costs to come into compliance," which he estimated at $1 million.

I think that's a conservative estimate.

The hypocrisy of the FreeRepublic.com crowd

In 2000, an article about "The Secret FISA Court: Rubber Stamping Our Rights" created outrage and prompted comments like this:

This is beyond frightening. Thank you for this find.

This does not bode well for continued freedom. Franz Kafka would have judged this too wild to fictionalize. But for us - it’s real.

and this:

Any chance of Bush rolling some of this back? It sounds amazing on its face.

But today, when there's warrantless NSA surveillance that makes the FISA Court look like significant judicial oversight, the comments are like this:

Privacy is a false argument and has been for some time. Your insurance company and the credit bureaus have more on you than the feds do and you can do nothing about it. I would rather be secure knowing that the feds were looking over my shoulder and keeping me safe. I have nothing to hide, and in times of war, these steps are necessary.

So when Clinton engages in eavesdropping (rubber stamped by the FISA Court), it's a threat to the republic, but when Bush does it (without any judicial oversight), it's no problem.

Hat tip to Gene Healy at Cato, by way of The Agitator.

Judge grants injunction against warrantless wiretapping

Although the ACLU's lawsuit against AT&T in Illinois was thrown out, a separate case in Michigan filed on January 17 of this year against the NSA for warrantless wiretapping without approval of the FISA Court has resulted in a ruling by U.S. District Judge Anna Diggs Taylor that the practice is unconstitutional and must stop immediately. This is not the final decision in the case, but the granting of an injunction for the plaintiff.

The Electronic Frontier Foundation's lawsuit against AT&T also continues.