(I’d like to thank Col Lang for inviting me to be a guest author. One thing I’ve learned the last year or so coming here is that wisdom may be nothing more than recognizing how wrong we all can be sometimes, and accepting it when we are. I cannot count how many times I’ve commented here only to find within hours, days, weeks, or sometimes months that I was completely wrong! So, I’m starting with something safe (chuckle). Cheers…CWZ/Bob Devine)
The "lefty" blogosphere has lit up like a Christmas tree with the latest FISA legislation battle. Many of you have probably read about using prepaid (disposable) cell phones to evade those allegedly illegal wiretaps. When I first read about the supposed “warrantless” wiretaps the first thing that popped into my mind were the prepaid cell phones.
Since this is a topic dear to my heart – telecom Signals Intelligence – I’d like to add my two cents. Most importantly, I’d like to explain what I think is happening inside the SIGINT community in response to the technical challenges facing the government with these cell phones. My guess is that they are the centerpiece of the FISA controversy.
But let me be clear. This is just my speculation based on my experience. I don’t know for sure.
Prepaid cell phones are needles in a haystack. The smart criminal will buy one with cash, activate it from a pay phone, buy a few more minutes with cash at any 7-11, use it a few days, and then toss it in the trash. It’s the volume of telephone numbers that make them so hard to find, as well as their mobility.
A telephone number in North America has three parts: area
code, central office code, and line number. (ITU E.164 format for the
techno-geeks among us). In telephone jargon, the area code is a
Numbering Plan Area (NPA) and the central office code must follow a
numbering rule called NXX. Telephone people refer to large blocks of
line numbers as an NPA/NXX. There are 10,000 line numbers available for
use in each NPA/NXX block. That doesn’t mean there will be 10,000
active lines, just 10,000 numbers are available for that particular
NPA/NXX. Based on the numbering plan, there are 792 central office
codes (NXX) available per NPA, and there are 792 available NPAs. That’s
a lot of telephone numbers.
The Industry Numbering Committee of the Alliance for
Telecommunications Industry Solutions (ATIS) assigns NPA/NXX blocks of
numbers to telecom carriers: ATIS
The carrier assignments are public knowledge. You can even look them up yourself: NPA/NXX Lookup
So the SIGINT organizations know which prepaid cellular companies own which NPA/NXX blocks.
Active numbers are maintained in huge databases dispersed throughout
North America, and similar numbering plans are implemented overseas.
When you order a land line from a local Bell company like Verizon, your
name and number are recorded in one or more of these databases. These
databases are used for all sorts of services such as caller ID and
E-911. Of course, with a prepaid cell phone, no name is associated with
the cell number in the database.
In the land line network, there are plenty of places where names and
addresses are associated with a specific telephone number. When the government wants to tap it, they go and get a warrant. Cut and dry.
But let’s say Mr. Terrorist is somewhere in
Maryland between Baltimore and Washington DC, and he is using a prepaid
cell phone he bought with cash. His NPA (area code) can be 240, 301,
410, 443, 202, or 703 depending on his carrier. Each one of those NPAs
can have up to 792 NXX codes assigned to it. And each one of those NXX
codes can have up to 10,000 numbers. Now we’re really starting to see a
problem. The government already knows which blocks are owned by
prepaid cellular carriers, but there are still hundreds of thousands
of telephone numbers in one small region to sift through. This guy may
only pop up for a few hours before trashing his phone – I know I would!
How does the FBI or NSA tap his phone based on the number? Here’s
what I suspect has been happening behind the scenes with the FISA
battle.
It is physically impossible to monitor all the calls traversing the
telephone networks. The tinfoil hat crowd likes to scream about the NSA
“monitoring all our calls” but it just isn’t physically possible. When
I worked for a long distance carrier we were processing around 1
million calls per day, per junction (a junction is a large central
office), and our network had about 7-8 junctions. That was in the late
1990s. Call volume is much higher today. And that was one carrier out
of many.
What we can look at, however, are the messages the telephone network
uses to connect, maintain, and disconnect your calls. This process is
known as call signaling, or call processing. In the old days,
intercepting the call signaling of a large portion of the network was
difficult since both the call processing and voice connection used the
same physical circuit. Now, a signaling technology called Signaling
System 7 (SS7) has made that job much easier – the signaling process
has been decoupled from the voice circuit. All the SS7 messages are
carried on a network separate from the network that connects the two
phones together for the conversation. (For the techno-geeks among us, Wiki SS7 )
Although the land line telephone network can operate without SS7,
the cellular networks cannot. They all use SS7. Most likely the FBI and
NSA are exploiting this portion of the telephone network. But remember,
the SS7 network is only carrying call signaling messages. Inside those
messages are the telephone numbers of the calling party and the called
party, but no names. These messages containing each telephone number in
a call can be stored in huge databases and mined for anomalies. The
SIGINT folks are probably looking for call patterns – anything that
will make the target stick out. If there is an interesting call
pattern, then resources can be applied to actually monitor the
conversation.
So, is it really wiretapping if the government is only monitoring
call patterns and no names are associated with numbers? Is it really
wiretapping if no voice conversation is monitored? I don’t know. That’s
for the lawyers to decide. I do know that the amount of data collected
would be incredibly huge – for every telephone call there will be many SS7 messages generated. Multiply that by the hundreds of thousands of calls
processed by the prepaid cellular carriers per day, and you start
seeing the problem our law enforcement and SIGINT folks are tackling.
Sifting through all these millions of call singling messages is a huge
undertaking.
Most likely the process is becoming more and more automated with
signaling anomalies triggering the automatic monitoring and storage of
conversations. Although this would make life much easier for the
collection folks, this automation would be where the legal points
become shaky since the warrant would have to be applied after the fact.
I do not know for sure, but I suspect that total automation is feasible
to a degree. It would still require a lot of resources. What if the
trigger was in error and you recorded two innocent people, should you
still have to get a warrant even if internal procedures ensured the
recording was deleted? Sometimes innocent Americans get caught up in
SIGINT collections overseas, and there are existing oversight policies to deal with that.
So, here we are so many paragraphs later and we’ve only seen the tip of
the technical iceberg. But my intention was to provide a taste of what
the managers at NSA and FBI are dealing with, and one can only imagine
the pressure that was applied from on high to find solutions starting
in October of 2001. How many of these terrorists were still floating
around out there among millions of telephone numbers back then? How can
we catch the right people while respecting the rights of the innocent?
Personally, if I were in my SIGINT shoes back then, I would have pushed
forward looking for a technical solution to finding these guys while
the lawyers above me figured out the legal issues: “it’s easier to ask
forgiveness than to get permission.”
And we haven’t even touched email, SMS messaging, chat, voice over
IP, video, and the like. To quote Carl Sagan: “billions and billions”
of messages.
It ain’t 1978 any more.
If Bob Devine is right, and he makes a plausible case, one would think that the Bush administration could defuse the situation by explaining it to Feingold, Dodd, etc. These are not stupid people, nor are they going to share the details, which are too complicated for them to readily pass on anyway.
But instead, the Bush administration stonewalls. Given their knee-jerk propensity to lie about everything, the only rational reaction is to assume that they are lying about warrantless wiretapping, too. Given Bush’s record of utter disdain for Congress and the Constitution, how can this hapless bunch of bozos called Congressmen and Senators grant Bush authority to do anything? And dare they look at themselves in the mirror without shame the morning after?
While I’m hardly an expert, I spent a brief stint working for a cellphone company, and have some background in computer science and I’m not actually convinced a disposable cell phone is that reliable a method of avoiding detection. At least detection by the NSA. Probably works quite well if you’re the friendly neighborhood dope dealer. If the NSA has a back door into the cellphone companies databases (as has been alleged) then they have, at minimum the following information on every phone number, the time the number was activated, the type of account, how the phone is activated and how much it has been used. It wouldn’t be too taxing to put together a list of every cell prepaid cell phone activated in the last week, that’s been used for less than, say, an hour. I doubt they’re monitoring everything. But if there isn’t a metaphorical red light going off in a computer system somewhere when someone’s first call on a prepaid cell phone is long distance collect to Pakistan or Yemen, I’d be shocked.
That said your point that this is a difficult technical problem most likely exacerbated by political and legal concerns is well taken, and I have nothing but sympathy for the technicians who undertake it. My issues with the warrantless wiretapping has more to do with questions of executive privilege and legislative spinelessness than they do with the notion that phone conversations are being recorded. I’ll leave it at that.
CWZ
Can you help us non-techie geeks understand the following:
1. Why did AbuG and Andy Card go to the hospital bed to try and pressure Ashcroft to sign off on something that he refused? What could that something be?
2. Why did Comey refuse to certify the spying program? What do you think troubled him?
3. Why did Joe Nacchio and Qwest believe what the NSA requested of them was illegal? What could that have been? Why did the government then retaliate against Nacchio and Qwest?
4. Why is the government using “state secrets” as the only defense against all the law suits?
5. The EFF lawsuit with a sworn affidavit by an AT&T technician is that NSA had a “backbone tap”? What could such a tap be and what are the implications?
6. In Congressional testimony there have been references to data mining large volumes of data and concern that innocent Americans maybe unfairly caught up in the dragnet. What data are they mining?
7. Another issue is around “minimization” – meaning if the NSA determines that they picked up information on an innocent American they will destroy any data collected – that’s what is in current FISA. Why are the intelligence agencies and this Administration fighting this so hard? Why do they want to retain data collected on innocent Americans?
8. It seems that the telecom companies in complying with the Administration’s request have broken the law since they and the Administration are fighting tooth and nail to retroactively change the law to make what was once illegal suddenly legal. Why?
9. The FISA law that was passed in 1978 is the outcome of the Church commission investigation on illegal spying on Americans by our intelligence agencies. We fought the cold war against a serious adversary who was very astute technologically and who had a solid and competent intelligence apparatus with no difficulty with that same FISA law. What is materially different with some cave dwelling non-state actors in the middle of the Hindu Kush that threatens the “existence” of the USA that this Administration felt the need to break this FISA law in secrecy and is now fighting to make all their illegal actions retroactively legal?
Something doesn’t add up. And when it comes to this Administration and politicians of both parties and the intelligence agencies considering what transpired in the 50s, 60s and 70s I think it pays to be skeptical. Fundamental constitutional liberties once lost can never be regained, IMHO.
I’m sorry Pat, but you are seriously behind the times in electronic capability.
A three minute phone call takes up about 1.5 meg of hard disk space.
A million 3 minute phone calls consumes about 1.5 terabytes of hard disk space.
You can buy a terabyte of hdd space for less than $500. (and that gives you instance access, if you go to removable media like DVDs, the cost goes way lower, but the pita factor goes up
There is absolutely no reason why they can’t be recording every long distance call in the USA (and storing them, waiting for something to point them at a particular phone call later)
Thanks to CWZ for framing some of the issues so well. Presumably other (non-U.S.) intelligence agencies are interested in similar traffic analysis. At the risk of exposing my tin-foil hat, I’d be interested in hearing a technical discussion regarding the kind of capabilities the Israeli firm Amdocs would have as a result of its role in handling billing for major U.S. carriers, and also the suitability of having the Israeli firm Verint (aka Comverse Infosys) as a major
CALEA player. If the internet (and Fox News) chatter in this regard is mere drivel, I’d be happy to learn why that is so. Otherwise, I’d like to hear some discussion of the role of COMSEC in U.S. domestic governance, and more specifically, the actual consequences of such foreign monitoring of U.S. telecommunications. The case of Monica Lewinsky comes to mind, although its COMSEC aspect may be just a red herring. In any case thanks again to CWZ. It was refreshing to read not only the discussion, but also, and especially, the admission of fallibility.
With the availability of essentially unbreakable encoding schemes for free (e.g. Pretty Good Privacy) and the knowledge that the bad guys are going to create a ton of chaff to conceal their real messages, is wiretapping me really going to do any good?
The tinfoil hat crowd likes to scream about the NSA “monitoring all our calls” but it just isn’t physically possible.
The tin man being the companion to the straw man. Sheesh.
The objection isn’t about Geo. Bush monitoring my calls. It’s that 1) Geo. Bush dismantled FISA by executive fiat – part of a broader effort by this administration to dismantle Congress’ constitutional role – and 2) the new regime was implemented with zero – zero – oversight.
I’m pretty left politically, and agree with your piece and add my own set of doubts.
I’ve never understood how it would work if the intention was to monitor ALL phone calls and email. It would be physically impossible for any government to have a bank of folks with headsets on listening in on all phone calls. So the calls would have to be harvested and stored on some kind of media and processed later. Not only that, no terrorists worth his salt would say to his correspondent, “hey, we’d better switch over to English since the American Intelligence agencies are so poorly gifted with multi-lingual snoops.” So, we’d have to rely on translation software and we’ve all chuckled over examples of how well that works.
Imagine, calls are logged onto media somewhere, run through translation software, a filter of hot words or phrases run on that, and then someone attempting to determine if this “hit” should be assigned for some level of follow-through. How many agents will that take?
But it does not stop there – the results of the follow-through have to be fed back to the persons developing and refining the filters so as to throw out the bad parts of the algorithm ( I think the quality of follow-through would plummet if most of the things assigned out for field follow-through turned out to be nonsense ), and refine the good. A pretty massive undertaking in itself.
I’m pretty left politically, and agree with your piece and add my own set of doubts.
I’ve never understood how it would work if the intention was to monitor ALL phone calls and email. It would be physically impossible for any government to have a bank of folks with headsets on listening in on all phone calls. So the calls would have to be harvested and stored on some kind of media and processed later. Not only that, no terrorists worth his salt would say to his correspondent, “hey, we’d better switch over to English since the American Intelligence agencies are so poorly gifted with multi-lingual snoops.” So, we’d have to rely on translation software and we’ve all chuckled over examples of how well that works.
Imagine, calls are logged onto media somewhere, run through translation software, a filter of hot words or phrases run on that, and then someone attempting to determine if this “hit” should be assigned for some level of follow-through. How many agents will that take?
But it does not stop there – the results of the follow-through have to be fed back to the persons developing and refining the filters so as to throw out the bad parts of the algorithm ( I think the quality of follow-through would plummet if most of the things assigned out for field follow-through turned out to be nonsense ), and refine the good. A pretty massive undertaking in itself.
it appears that you might want to also ‘expound’ on for example some missing key item[s] — ‘guidelines’. example ussid18, or dod 5240.1-r, or ag guidelines for foreign intelligence collection and foreign counterintelligence investigations, just for starters. it’s the attitude of “it’s easier to ask forgiveness than to get permission” that should be avoided as such can wind up trampling over existing laws on the books and the agency ‘offender’ winding up behind federal jail cell bars or at the least dismissed/released/fired from their ‘air conditioned job’. and that hasn’t even begun to approach right versus wrong what most refer to as the ‘moral issue’, the yin-yang, etc..
Ael-
I wrote this one, not Pat.
You are right, modern storage capacity can handle the recordings. It’s getting those recordings in the first place that requires huge amounts of resources.
it’s the attitude of “it’s easier to ask forgiveness than to get permission” that should be avoided as such can wind up trampling over existing laws on the books and the agency ‘offender’ winding up behind federal jail cell bars or at the least dismissed/released/fired from their ‘air conditioned job’.
Thanks for highlighting this J.
My point here is not that it is right to behave that way, but that the temptation will be so great to do so.
The main gist of my post was to show that there are very complicated technical challenges that the intel folks must balance with the law, and it wouldn’t have been easy on 12 Sep 2001 to do that.
And we have to have an honest debate about this reality rather than partisan rhetoric.
To add to what Andy said about straw men.
First, your nice little scenario assumes that the government is following sound minimization approaches. Since we know that they’ve tapped Christiane Amanpour and Lawrence Wright, we know that’s not true. Wright, at least, was brought into an actual tap, based on the “six degrees of separation” approach that is no doubt driven by call data analysis, but which demonstrably did not have adequate safeguards for private citizens. The proposed bill does not allow the courts to review the actual minimization (just the procedures), which means you’re going to continue to have these errors that violate the privacy of Americans.
But the other problem is that the telecoms, after having received 2.5 years of authorization letters that, in compliance with other law, were signed by the AG, all of a sudden accepted one in March 2004 that was signed by the White House Counsel. And in spite of all the high priced legal support they’ve got, they apparently didn’t even balk; they just kept collecting data. Now, call me crazy, but sending corporations the message that they can do whatever they want to American citizens, in clear violation of American law, so long as the President’s own lawyer says it’s okay–that’s a really scary precedent.
Andy-
My tinfoil hat comment is something I’ve been hearing for years and years. This was an opportunity to respond!
Cheers….
thanks for the insights and clarifications. More would be appreciated. From, in the context of this blog, one of the “lefties”.
This is typical American paranoia. Will we ever be paranoid enough?
Hard-core professionals won’t get caught by any of these means, but then, the hard-core are presumably acting on behalf of sophisticated foreign governments. Israel, for example.
If the NSA has a back door into the cellphone companies databases (as has been alleged) then they have, at minimum the following information on every phone number, the time the number was activated, the type of account, how the phone is activated and how much it has been used. It wouldn’t be too taxing to put together a list of every cell prepaid cell phone activated in the last week, that’s been used for less than, say, an hour. I doubt they’re monitoring everything. But if there isn’t a metaphorical red light going off in a computer system somewhere when someone’s first call on a prepaid cell phone is long distance collect to Pakistan or Yemen, I’d be shocked.
Thanks for this tidbit, Grimgrin.
My background is in terrestrial networks, not the cellular. I know just enough about the cellular guys to be dangerous.
Emptywheel-
You are way more up to date on the political and legal issues than I am. That is way out of my comfort zone.
My point here was to just give a snapshot of a different aspect to the argument. That there are going to be good people facing huge technical challenges to catch the “evil bad guy.”
All-
Here’s a disclaimer: I’ve been out of the SIGINT business for over a decade, and was a technical guy who maintained the systems. I did not work in the higher levels of operations, policy and planning. So…
Zanizibar-
I can’t answer the political stuff. But these I can:
5. The EFF lawsuit with a sworn affidavit by an AT&T technician is that NSA had a “backbone tap”? What could such a tap be and what are the implications?
My memory is that NSA had tapped a tier 1 Internet router in San Francisco. That router would be carrying TCP/IP (Internet) traffic, not cellular traffic. Well, most likely not cellular traffic unless a cell call was converted from circuit-switched to IP by some IP “carrier.” But that router would have mainly carried traditional IP traffic on the Internet backbone rather than cellular calls.
6. In Congressional testimony there have been references to data mining large volumes of data and concern that innocent Americans maybe unfairly caught up in the dragnet. What data are they mining?
In my scenario, they would be mining call singaling messages. But your question could be about all sorts of TCP/IP traffic on the Internet. I don’t know.
Zoomie
Great technical info and extremely helpful. Thanks.
From what I can tell, the criticism of FISA is not coming exclusively from the left, as many conservatives do not want to see executive orders eviscerate the 4th Amendment. As John Dean wrote, “Bush and Cheney want to make permanent unchecked Executive powers to electronically eavesdrop on anyone whom any President feels to be of interest.” Here’s the Dean article from Findlaw:
http://writ.news.findlaw.com/dean/20071019.html
Dean relies heavily on the work of G. Washington law Professor Daniel Solove. Here is his website.
http://docs.law.gwu.edu/facweb/dsolove/
Without any possibility of civil liability against the telecoms, then the ability to erode further the 4th Amendment protections becomes that much easier. As Dean makes clear, this is part of the motive for the recent legislation that grants immunity to the telecoms. If a jury popped the telecoms with a judgment — and Verizon as well as others were sweating bullets — then political pressure would arise to make sure the individual was protected.
dave,
paranoid, who is ‘paranoid’? especially when ‘they’ have been injected into our nation’s telecomm networks, the ‘theys’ like amdocs, or comverse, jsi, verint, comverse infosys. with these ‘israel based companies’ watching/surveillance of our u.s. citizenry (to include ‘their’ surveillance of our fbi, nsa, dea, dod, etc.,) who needs to be ‘paranoid’, right? and given the big force behind the let’s make sure the telecomms get immunity — aipac. for if in the process of discovery it were discovered the israeli base companies involvement in the illegal surveillance of americans, and our american intel infrastructures, their israeli shredders would be working overtime. the discovery process that foreign storefronts like aipac want to avoid at all costs.
what does ‘paranoid’ mean anyway? snarf.
Now, call me crazy, but sending corporations the message that they can do whatever they want to American citizens, in clear violation of American law, so long as the President’s own lawyer says it’s okay–that’s a really scary precedent.
Posted by: emptywheel
Hardly a precedent, EW, if you’ve been paying attention.
Former Atlanta Mayor and UN Ambassador Andrew Young:
“Nothing is illegal if 100 businessmen decide to do it.”
I’m not sure when he said it but one can find glaring examples of this type of “precedent” as far back as you’d want to go in American history. But I agree with you. This is a problem that needs to be addressed. Either no one is above the law or some people are above the law. I think it has become the latter, and the poor get prison.
I have great respect for SIGINT, but petty domestic spying to satisfy political paranoia is not a good use of their time & abilities.
Zoomie,
SOSIII is correct. This drives civil libertarians from across the political spectrum crazy. There are many on the right who have long been opposed to this infringement on an important right added to the BoR. It is one of those areas that involves the intersection of technology and law and the expanding and contracting concept of privacy as a loose construction of the constitution. The word is never mentioned in the Constitution. Case law has given us the concept of a zone of privacy and there are no rights without a remedy. The federal courts never bothered with the fourth amendment much until 1914 when Weeks v U.S. gave us the doctrine of the Exclusionary Rule. The states largely ignored it until Mapp v Ohio in 1960.
It’s like trench warfare. gain some ground, lose some ground, and technology usually outpaces the development of the law with the law playing catch-up.
I still refer to this. Brandeis in the Harvard Law Review on The Right to Privacy, 1890:
http://www-swiss.ai.mit.edu/6805/articles/privacy/Privacy_brand_warr2.html
http://www.rbs2.com/privacy.htm
Sorry to post off topic, but for David Habakkuk and others interested in the bush telegraph used to post dodgy intelligence info and smears in the American media by first using British or Israeli publ;ications, Jim Lobe has an interesting article on The Telegraph’s role in this and how the post-Rumsfeldt Pentagon is using its stories far less frequently:
http://www.ips.org/blog/jimlobe/?p=161
Actually, getting the voice recording shouldn’t take up a lot of effort either.
Switched voice toddles along at 64 kilo bits per second.
Let us take your example of a single node with a million 3 minute calls per day.
Assume that the busy hour takes 10% of them. So one hour handles 100,000 calls. 3600 seconds in an hour moving 100,0000 * 1,500,000 bytes
or about 40 mega bytes per second.
Modern PC’s have busses which can do several orders of magnitude better.
So pulling that information off the wire and putting it onto a disk isn’t a problem for a single PC.
Note too, that all this stuff is inherently distributed, so you don’t have to have it all go to one hard disk (even though you could).
Finally, all telecommunications equipment operates to established standards (to enable multiple vendors, etc). These standards makes for a nice playing field when operating across all the switches in the field.
I see no technical barriers to being able to record every long distance phone call in the USA for a reasonable (to the NSA) amount of money.
Is there any evidence this is worth the massive effort? Have these methods actually caught anybody?
So, is it really wiretapping if the government is only monitoring call patterns and no names are associated with numbers? Is it really wiretapping if no voice conversation is monitored? I don’t know. That’s for the lawyers to decide. I do know that the amount of data collected would be incredibly huge – for every telephone call there will be many SS7 messages generated. Multiply that by the hundreds of thousands of calls processed by the prepaid cellular carriers per day, and you start seeing the problem our law enforcement and SIGINT folks are tackling. Sifting through all these millions of call singling messages is a huge undertaking.
Regarding the “huge amount of data” – yes it is huge, but each telco presents it to you on each of your phone bills, along with the duration of the call, when the call was made and which part of your calling plan it falls into. So it is huge but manageable, assuming the Federal Government has as much resources as the telcos combined to do this – which it clearly does.
The problem of sifting through the data and finding a meaningful pattern is another and different issue. If you’re looking for patterns without any leads, agreed it is very hard. If you have a phone number or two to start from, then to create the community of interest is rather trivial.
Thanks for the info CWZ.
The point is in my understanding not the lack of a case for doing it, you describe it very well, but the extralegal nature of how it was conducted.
Considering the remarkable eagerness of congress – R or D controlled – to basically rubber-stamp unread anything remotely related to national security, I find it hard to fathom that the administration could not have gotten their legal approval for such measures if they had tried. It isn’t as if they just didn’t have the time. They didn’t have the will.
In my understanding the extralegal activities are a result of the practical application of the unitary executive doctrine. The doctrine goes well beyond existing law, protestations to the contrary by Addington, Gonzales, Scalia & Cie notwithstanding. It’s worth to keep in mind that not even Ashcroft wanted so sign up on the domestic telephone surveillance.
That is really telling about how radical the unitary executive theory constitutionally actually is. The inevitable result of such overreach is the necessity for retroactive immunities, after cooler heads have figured out that Addington’s superheated legal theories will probably not survive in court.
Point in case is the latest defeat they suffered on the detainee issue at the Supreme court (and where the conservative judges engaged in an unseen before extent of hackery in their dissent).
What I find appalling is that the administration are using national security as a pretext in order to push the limit of executive power well beyond what the constitution allows. I say that without being too familiar with US constitutional law. But I read that extra-constitutional nature out of the urgency to get retroactive immunity on at least torture related activities and domestic surveillance. The list is probably incomplete, think of domestic propaganda. That isn’t just being careful for the sake of being careful, it is the very real prospect of criminal prosecution for very real criminal acts. I think that Mr. Feingold is right when he speaks about the covering-up of impeachable offences.
The unitary executive doctrine has more to do with Carl Schmitt’s state of exception that with US constitutional law, and no matter how brilliant Schmitt was, it is worth keeping in mind who he worked for.
The problem with today’s America is that the partisan’s on both sides trust in their leaders to do the right thing, so that checks and balances are not necessary.
I wonder how today’s cheerleaders for unlimited executive power will like it in the hands of Mr. Obama. They will predictably make a 180° turn, and you will with a great probability hear people like John Yoo (who thinks that the president has the right to order a child’s testicle to be crushed in order to make his daddy talk) ranting about unbearable constitutional overreach. Pathetic. Partisans are blind on their right or left eyes respectively.
CWZ:
Great introduction to the complexity of the problem, including an appropriate frame (“needle in a haystack”). Here’s hoping we can see more of your work here on SST.
What your analysis suggests here is that the the feds are trying to find that needle by dint of making the haystack even bigger. That’s just not a viable strategy, unless one has unlimited resources for law enforcement, including the ability to create perfect data-mining software. The opportunity costs of the false leads generated by the less-than-fully-informed expansion of the haystack soon overwhelm even the most efficient investigative apparatus.
That’s why informed searches based on probable cause have proven so successful for law enforcement operations in the real world. And that’s why this key phrase is ultimately so helpful in finding and punishing bad guys of any stripe:
…and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the way of background, I have worked in such areas as the design and implementation of one of the first federal attempts to build a comprehensive database to support data-mining efforts in counterterrorism (of the overseas variety). And I’ve also sweated the forensic details all the way from the high technology down to the specific low-level needs of law-enforcement officers who are appearing before a judge in order to gain said warrants. So I’ve had a front-row seat on many facets of this particular debate.
And if I had to sum up what I’ve learned about high crimes that utilize high technology, it would be this: technology has not spawned any substantial new misbehaviors of humanity, and thus the fundamental pre-technological principles that have served our culture well in the past are still completely relevant, e.g., the Fourth Amendment.
In other words, crimes that utilize the Internet or that require disposable cell phones are still, at their core, the same crimes that humans have always perpetrated. Beyond the obvious issue of scale, all that has changed is the mediating technology used to support the pathological human behaviors. And those technological aspects do not require us to revisit the wisdom of our founding fathers, because their novelty applies only to the implementation of the crime, not to the underlying crime itself. Thus there is no need to grant retroactive immunity to corporations, or to otherwise violate the constitution.
To borrow from another pre-cell-phone cultural source, “what has been will be again, what has been done will be done again; there is nothing new under the sun.”
@zanzibar
3. Why did Joe Nacchio and Qwest believe what the NSA requested of them was illegal? What could that have been? Why did the government then retaliate against Nacchio and Qwest?
Why, also, would the NSA have approached Nacchio more than six months before 9/11, as he alleges?
Are they after the needles, or the haystack itself?
In my view the basis of this legislation has nothing to do with terrorism, but rather chilling legitimate political activity of Americans regarding the Middle East. Supporters of the Lebanese opposition, of the Egyptian opposition, of justice for the Palestinians – and those involved dozens of other issues – those who do not use throw away phones or encrypt their emails, will feel justified threat. Particularly since, as I understand it, wiretapped material may be freely transferred to foreign governments.
CWZ – “In my scenario, they would be mining call singaling messages. But your question could be about all sorts of TCP/IP traffic on the Internet. I don’t know.”
My background is 25+ years in the IT world. As others have stated, it is entirely feasible and well within current technology, to capture and process both call information and call content.
For folks who want to know just what the NSA and its corporate accessories like AT&T use to accomplish this task, simply check out Narus Inc.
This is the technology that is already used by a large number of the major voice and data comm providers worldwide.
Here’s a link to a Powerpoint presentation by one of major 3rd Party purveyors of Narus technology around the world, namely IBM.
CWZ, I would make the case quite strongly, that given today’s technology, it is entirely feasible, and entirely likely reality, that the NSA and its corporate accessories like AT&T, Comcast, Verizon, etc. can and do capture a large percentage of international voice and data comm traffic that passes through US-based switches, and a fair amount of domestic traffic as well.
For even more chilling descriptions of what the NSA can and does do with their technology, one only has to visit Wiki for their article on ThinThread, or even worse, the NSA’s follow-on project to ThinThread, which is Trailblazer, both of which the excellent reporter Siobhan Gorman, formerly with the Baltimore Sun and now writing for the Wall Street Journal, describes in this article.
I’m going out on a limb here and going to say that the two FISC Chief Judges who each decided the program was massively unConstitutional and barred it and anything related to it from FISC don’t have tinfoil hats and do understand how hard sigint activities can be.
I’m also going to go on a limb and, while I’m not all that sure if McConnell operates on a level different from Mr. Magoo, I’m fairly sure someone who does operate and function well gave McConnell the info that he has since disseminated that the telecoms are looking at huge huge huge massive massive massive damages because of the program.
That’s not a targeted, ‘al-Qaeda is calling’ program.
Also, from the whistleblowers to the more recent statements of people like Baker and Wainstein, everything does pretty much point to what Ael has mentioned, a massive interception and storage program.
One, now, that will have no “agents of foreign powers” or “national security” overlays as checks, no real pragmatic minimization and destruction requirements, and all operating under what are in essence administrative orders issued by not just the AG, but but all kinds of agencies and their employees.
I have to wonder what other countries where these telecoms are operating think of the suck and store approach to all their citizens communications. I seem to recall this SWIFT problem . . .
Lesly – not an apple pie recipe, but apparently Lawrence Wright was survielled for his scarey communications involving the words Caroline and Brown. Go to Ira Glass’ recent interview with Wright and listen to that.
And keep in mind, through the Patriot Act and given gloss by this FISA legislation as well, now DOJ is fully and completely authorized to go after someone for whom they have no probable cause to get a criminal warrant and now backdoor collections through FISA so that if they try and try and try and find nothing, they can hide their efforts, but they can sure try to politically target someone and just hope to get lucky. All with no real oversight.
Not, of course, that the long string of miscreants in DOJ would lead anyone to worry about such a thing as political targeting.
What ever happened to Human Intelligence Operations?
FISA seems to me like a shotgun approach to Terrorism but I think we need a rifle approach to zero in an the “Evil-Doers”.
Zanzibar, didn’t the DOJ put Joe Nacchio in jail?
Sen. Feingold opposing the FISA Amendments Act of 2008.
Read and weep for our republic. History will only have contempt for our generation.
“we have to have an honest debate about this reality rather than partisan rhetoric.”
That would require honest debaters. Informed observers would be a bonus. Presently, neither exists.
Wouldn’t it be much easier just to target the phone calls of your domestic political opponents?
Wouldn’t it be much easier just to target the phone calls of your domestic political opponents?
I couldn’t have said it better myself!
Actually, since this thing has been going on for awhile now, they (NSA, ETC) probably have all the data they need to eliminate the greatest number of communications from thier watch list. At this point all they really have to do is track all new cell phones sold and see what they are used for. Plus all newer phones can be tracked with GPS, so they probably know where you are calling from to within a mile. If it turns out that it is an illegal immigrant calling back to Central or South America, monitor for awhile, then ignore. The calls that would raise suspicion would be the ones that are short, and then the phone is no longer being used after a few hours, then a new one is used in the same area.
The same probably applies to short-lived email accounts. After all, its been several YEARS now, they probably have all the data sifting protocols in place and just have to sit back and let the AI programs do the work.
Some closing thoughts now that the comments have slowed down.
First of all, another round of thanks to Col Lang for running this blog day in and day out. Reading every comment to make sure it isn’t spam or unfit to print isn’t a small task, especially when there are other projects going on.
And thanks to everyone who commented. Not one post was unfit for print. That’s pretty amazing for the Internet!
After reading everyone’s comments I think it’s best to share a little more about who I am.
I spent six years maintaining a variety of SIGINT and COMSEC systems for the NSA, starting here and ending at this behemoth, with a short stint in Central America in between. I got out of that “business” in the mid-1990s, and have worked for telephone companies, telecom equipment manufacturers, the State Department, and DoD.
As you can see, my NSA experience is very old. Plus, I was a small cog in the machine. Considering that, and your comments calling me out on my tinfoil hat remark, I’ve thought more about what NSA’s capabilities might be today compared to 13 years ago. Also, the mission would have changed drastically from my Cold War days to now.
And Hannah mentioned CALEA. Although I was vaguely aware of the CALEA requirement for switches, I really didn’t know much about it. Reading up on that really got me thinking.
“Back in my day” as we say, NSA had to pluck signals out of the sky everywhere I worked. We didn’t have telcos feeding us the info we wanted where I worked. They were our targets, after all!
This CALEA “feature” is a whole other ballgame, along with being fed OSS data directly from the telcos if that’s true.
Maybe we can cover it in the future after I read up on it some more. We have CALEA-compliant switches in our backbone at work. Time to learn something new.
Cheers, and thanks for chiming in!
Bob (CWZ)
Is there any evidence this is worth the massive effort? Have these methods actually caught anybody?
Posted by: AL
I’m not sure. I suppose the question is, “Does it make us safer?” Law Professor Scott Horton has been covering this at Harper’s. His latest post:
http://harpers.org/archive/2008/06/hbc-90003151
He used to post at Prof. Jack Balkin’s Blog:
http://balkin.blogspot.com/
And they do cover this if you want to read they lawyers perspectives.
Prof. Horton interviewed Mike Sheehan last week.
Six Questions for Michael Sheehan, Author of Crush the Cell
http://harpers.org/archive/2008/06/hbc-90003079
Johnf,
Thanks for the reference to Jim Lobe’s piece. Very good news that Gates is cutting the Telegraph out — but also an interesting insight into how the transnational disinformation networks worked under Rumsfeld.
You have probably seen that Colonel Sam Gardiner, whose Truth from These Podia paper discussing the disinformation operations relating to the Iraq invasion was a pioneering analysis of the operation of such transnational networks, is now blogging at http://www.spinwatch.org.
(The original paper is at http://www.usnews.com/usnews/politics/whispers/documents/truth.pdf.)
Actually these matters relate to the issues discussed by CWZ.
In both cases, a fundamental issue involved is whether constitutional government holds out better prospects of dealing with our problems than the kind of Carl Schmitt-style state of exception ideas to which confusedponderer referred.
As Sidney Smith brings out, this is an issue which cuts across left-right divisions.
But it does seem to be muddied in the case of the FISA legislation by the mind-blowing technical complexities CWZ and others have described.
They make tracking disinformation networks look rather simple!
I’ve just skimmed through the comments so sorry if anyone else has made this observation: The bottomline is that few still trust this administration not to use actionable information for political ends. This is not to mention the fine tradition of the FBI’s willingness to act as political police with very little urging.
Wouldn’t it be much easier just to target the phone calls of your domestic political opponents?
They’ve been there and done that since at least the Teapot Dome scandal. The FBI’s voluminous wiretapping of Martin Luther King shows how easily the system can be abused:
Johnson famously heard recordings of King’s conversations and personal liaisons with various women. Less well known is that he received wiretap reports on King’s strategy conferences with other civil rights leaders, hoping to use the information to block their efforts to seat several Mississippi delegates at the 1964 Democratic National Convention. Johnson even complained that it was taking him “hours each night” to read the reports.
Few presidents were quite as brazen as Nixon, whom the Church Committee found had “authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security.” They didn’t need to be, perhaps. Through programs such as the National Security Agency’s Operation Shamrock (1947 to 1975), which swept up international telegrams en masse, the government already had a vast store of data, and presidents could easily run “name checks” on opponents using these existing databases.
These paragraphs are from an excellent op-ed by Julian Sanchez for the LA Times, 3/16/08.
I appreciate Bob’s technical rationale, yet I think the premise is a bit of a red herring; the uproar over the current FISA bill is mainly focused on the inclusion of Telecom Immunity, and has already been noted here, the Telcos were approached at least 6 months before 9/11, so the ‘post 9/11 world’ argument carries little water indeed.
Despite all the fantasy ’24’ scenarios that authoritarians like to envision, the radical direction taken by the WH in wiretapping and torture has done very little to protect the People; despite these extreme measures, the ‘success’ of these programs is scant, unless you consider Jose Padilla, the Fort Dix Six and the Seas of David ‘cell’ to be legitimate threats. Given the extreme politicization of this administration, where the tiniest crumbs of purported intel success have been presented to the public on giant silver platters, I think it can safely be said that there are no high profile terrorist cases that have been cracked either by wiretapping or by torture.
Again, I appreciate learning technical arguments as to why FISA needs to be updated, however, my ‘tinfoil hat’ warns me that the technocrat tends to focus on the system as it is supposed to work, while ignoring qualitative inputs that are outside of the system, ie. corrupt officials misusing the system.
To paraphrase Sanchez’s conclusion, the govt. isn’t really interested in ‘the little people,’ however, if the Bush regime is *not* misusing this secret system for political means, it would be a first.
Jose
Joe Nacchio was convicted of insider trading but an appeals court ruled against the conviction. He is demanding to place in testimony stuff the Feds deem as “state secrets” and claims that will exonerate him.
I don’t know anything about Mr. Nacchio personally. I could easily believe he is part of the “pump & dump” CEO club who focused on managing Wall Street earnings expectations to keep their stock options in clover. The SEC does not enforce insider trading uniformly. They got Martha Stewart but none of the Wall Street titans have ever been nailed. Relative to our discussion on this thread what is noteworthy is he is the only telecom executive that refused the NSA request. So there is likely more than meets the eye here.
After the vote, and Obama’s pathetic climb down, all the technical talk misses the point – warrants for domestic electronic intercepts have effectively been removed from your constitution
David Habakkuk,
chances are you know him already, but very good on Schmitt is Scott Horton on his ‘No comment’ blog at Harper’s Magazine.
http://harpers.org/subjects/NoComment
on Boumediene:
http://harpers.org/archive/2008/06/hbc-90003070
Looking Carl Schmitt in the Mirror
http://harpers.org/archive/2007/08/hbc-90001032
The Calling of Politics
http://harpers.org/archive/2008/06/hbc-90003052
and somewhat more humorous and certainly more on topic than something as arcane as Schmitt, his spirited post “Die Stasi ist mein Eckermann”
http://harpers.org/archive/2007/05/hbc-90000091
He writes well, and is almost always interesting to read, I agree with most of his reading of international law issues, and he gets his German right.
According to the current FISA law, any recordings that are not covered by warrants (whether they are obtained before or after the fact) must be destroyed. The DoJ has up to 72 hours to obtain a warrant. While I certainly don’t know what court precedent might be, there seems to be no barrier to obtaining a warrant based on what is overheard, as long as it has something to do with national security.
In short, I still don’t see the problem here.
Allowing the government to listen in on conversations of Americans, or to read their electronic “papers” without a warrant is a violation of the Fourth Amendment, and for good reason. It leaves us all open to being blackmailed, robbed, or otherwise threatened by our government for our political views or activities. It also allows an unscrupulous government to listen in on its political opposition. What the current version of FISA does is to allow the executive branch to do this unsupervised by any other branch. That’s wrong for what should be obvious reasons.
All that is far more dangerous than terrorists have shown themselves to be.
Just as an aside, the notion that this objection is purely a product of the “lefty” blogosphere is bunk. There are plenty on the right who are objecting, as well. Like us, though, their politicians aren’t listening to them.
They’re too busy protecting us from religious fanatics who live in one of the poorest regions of the planet to care about our freedoms.
BTW – “lefty” is in quotes because it’s not meant to be taken seriously.
“Warrantless” is in quotes because it’s not a real word (according to all the spell checkers).
Geesh…I wish you guys would do a better job of reading my mind!
Does the NSA also monitor the calls of Members of Congress?
Surely the President wants to protect legislators against extortion by unfriendly powers.
If you want to know the answers to the questions posted above, especially #4, then visit the link, watch the videos in vertical order, if you don’t understand it then, you will never understand the answer to question #8
Allowing the Executive to get away with apparent high crimes is the precedent.
Allowing covert surveillance of your population’s communications violates “The right of the people to be secure in their papers… against unreasonable searches” and has a chilling effect on speech.
Every intelligent person here knows this power will be abused.
BTW – “lefty” is in quotes because it’s not meant to be taken seriously.
Sorry. I’ll try to do better next time. 😉
there might be a pigeon shortage soon after reading all this
Nobody seems to have answered my encryption comment.
Here’s my answer. The surveillance has nothing whatever to do with the bad guys and everything to do with control of the domestic population…who won’t be encrypting anything.
Control economically and politically.
In other words, this is the forme fruste of a coup.
Surprised?
With the availability of essentially unbreakable encoding schemes for free (e.g. Pretty Good Privacy) and the knowledge that the bad guys are going to create a ton of chaff to conceal their real messages, is wiretapping me really going to do any good?
Depends. A lot can be determined from your use of a technology. What time of day you typically transmit. The length of transmission. Your location. They are searching for patterns.
And what if you screwed up one day and forgot to use encryption?
Excellent post CWZ! It caused me to break out my dusty copy of Bamford’s “The Puzzle Palace” (published in 1982) and reread a few sections. My conclusion – The more things change, the more they stay the same. Back then it was Ma Bell and ITT, of course, and it wasn’t cellular traffic, but the microwave tower traffic that was destined to go overseas through undersea cable as well as the early satellites.
The issue then – one that was examined by the Church committee, was that the NSA simply had the technical capability to scoop everything out of the air. When one has a capability, one is often tempted to employ it, so the concern was on ensuring that NSA’s activities remained solely in the realm of foreign intelligence.
So when all our technical wizardry gives us the capability, even if it’s latent, to listen or monitor anything, anywhere, oversight becomes a hugely important issue. My experience in the intelligence community tells me that proper oversight is a critical factor for programs that operate at or near the line of legality. Without oversight, there are almost always problems and without oversight accountability when problems do occur is difficult at best. This is true not just for intelligence programs, btw.
Perhaps this weekend I’ll find a bit of time to read-up a bit more and make a more informed comment on this new FISA deal. In the meantime, you raise some interesting points that bring up some interesting legal questions.
First of all, regarding “disposable” cell phones, the administration’s desire for the legal authority to “tap” an individual (and hence all their communications) as opposed to one single avenue of communication makes perfect sense to me. If someone is using one cell phone for each call, then gaining a warrant to tap those phones is basically impossible unless the number is known ahead of time, which is rarely the case with these prepaid phones which don’t even get a number until they are activated.
And secondly, acknowledging I don’t know what the legal precedents are, it seems to me the legality of tapping a cell phone call without a warrant could depend on the context the call was made. For example, is there a legal difference between making a cell call from the privacy of my home or car (where I would have a reasonable expectation of privacy) and one from a busy shopping mall (where I wouldn’t)? Does it matter where the call’s recipient is located? In other words, does it matter where in the chain of communication the message is intercepted from a legal standpoint? I don’t know the answers to that.
Regardless, congrats and great post – I think Col. Lang made an excellent choice in bringing you on board.
Al,
Good question. It is my CONVICTION ,that this has nothing to do with our safety and everything to do with protecting the oligarchs and the status quo.
All of it is predicated on the false claim ,my own representative frequently makes, “the number one priority of all elected officials is to protect the safety or our citizens.” The fact is the only thing they are sworn to do is to defend and protect the constitution. This is hardly a new argument but I tend to believe you can’t protect something by destroying it. It also requires that we forget or ignore the FACT, that red lights and sirens were going off ,before 9/11 and until someone can explain what key bit of info FISA kept from the CIA, FBI, and the dimwitted NSA from connecting the dots, I ain’t buying. Not to put to fine a point on it but I wouldn’t trust my Representative or any of the neocons with so much as a moldy doughnut.
All of our institutions have been politicized to point that they have become part of the problem ;regardless ,of the sincerity of the grunts who do the heavy lifting.
Anyway I saw this today and thought about how it brings all this into perspective. Why the need to tap phones when people in charge can’t pick one up and use it.
(excerpt)
State Put AEY On Trafficking Watchlist, Then Signed Contracts With Arms Dealer
By Andrew Tilghman – June 26, 2008, 3:35PM
We were somewhat astonished this week to learn that the Pentagon had awarded a $298 million contract to arms dealer AEY Inc. despite the fact the company and its then-21-year-old president were on the U.S. State Department’s Arms Trafficking Watchlist.
An Army general said, quite simply, they don’t typically check that watchlist before awarding big contracts.
http://tpmmuckraker.talkingpointsmemo.com/2008/06/state_put_aey_on_watchlist_the.php
About the first thing you learn in telecoms is that IT’S ALL ABOUT THE SIGNALLING. Talking is a secondary issue.
“The Wire” did an excellent and credible exposition of the use of disposable mobiles by B’more drug dealers, and the extreme difficulty of “getting up” on the devices using intercept technology by law enforcement. The only solution found by B’more cops was to “pre-wire” the ‘phones and sell the tainted devices to their intended targets.
I neglected to thank you, CWZ, for this article. Even though I disagree with the implication that FISA as it is now (until President Bush signs the new travesty of an amendment just passed by the Senate) is completely inadequate, it provides a lot of insight into what we’re all talking about.
As you say, though, it’s not 1978. I think a serious review is in order of what’s really required. Given the current climate of hysteria, I don’t think we’ll be seeing that any time soon. In that spirit, I’ll point out that it’s not 1791, either. Today, our “papers” travel over this medium constantly. The care we once gave to protecting pieces of parchment or wood pulp in that era need to be applied to the signals sent across these new media.
Andy said: “And secondly, acknowledging I don’t know what the legal precedents are, it seems to me the legality of tapping a cell phone call without a warrant could depend on the context the call was made. For example, is there a legal difference between making a cell call from the privacy of my home or car (where I would have a reasonable expectation of privacy) and one from a busy shopping mall (where I wouldn’t)?”
IANAL, so ymmv. Folks ought to understand that cell phone commications are in essence “broadcast radio communications” which can be picked out of the air by literally anyone with the right equipment.
That said, NSA has always been allowed to capture and process radio communications. And I did re-read my copy of Bamford’s “The Puzzle Palace” again this past spring, so Andy, yes I highly recommend re-reading it.
You’ll find that many of the NSA interception sites were in fact setup on US soil.
Again, given that cell phone communications are radio broadcast communications, whatever would prevent the NSA from plucking these communications from the ether?
Not much methinks.
Again, IANAL but it would seem to me that radio broadcast communications are inherently public and therefore have little or no privacy protections.
Any legal eagles here can correct me if I’m wrong. And please do since I wouldn’t want to unecessarily scare the pants off of cell phone users.
And lastly, no, I do not myself use a cell phone.
As a life-long techie, I love using technology. I just don’t like technology using me!
Great post. Actually technology outran the lawyers and judges ages ago. Real question is ok what now to protect civil liberties and democracy in our Republic? Where is this debate occuring? Certainly not in Congress? In meetings of the NSTAC (National Security Telecommunication Advisory Community) and operations under EO 12472 as amended related issues were always postponed as too difficult to deal with by the Executive Branch. Put off until tomorrow what you might be able to do today. Just chickens coming home to roost and no one able to really discuss first principles of what is needed. How do you read the “mail” of terrorists? Who guards the guards? Hey these questions just no longer and have not been hypothetical for a long long time.
If I’ve missed where VoIP is discussed, I apologize, but VoIP offers up another hard-to-trace but not impossible to collect and store format as well–perhaps better suited. Want to operate completely off the grid and still carry something like a cellphone? Then take the risk of being collared by a diligent member of the FCC and carry a high powered cordless phone against the law in the continental US.
Virtually all of the cellular companies now move backhaul data over some sort of VoIP part of their network–all of that data is moved in a format that can be exploited as well.
Given the cell structure of any reputable terrorist organization, and given that they already know one operation can unravel with one slip–why the hell bother in the first place? There is virtually no chance whatsoever that, in a timely fashion, that we’re going to collect actionable intelligence, transcribe it, analyze it, and distribute it in time for it to make any kind of a difference anyway.
We made the mistake of redistributing a vast amount of wealth from the taxpayer to the defense establishment without bothering to realize that it is the first responder and the state and local governments who will either save lives or be paralyzed in the event of a terror attack–the money would have been better spent at the local level rather than enriching the zip codes in Northern Virginia (although, most people do like living in nice neighborhoods with rich neighbors, they do like living in communities where an ambulance, a cop and a firetruck can get to their neighborhood fairly quickly, too.)
WOW! What a great post. Traffic analysis and capabilities captured very succintly. Actually, technology outran the law when we moved from analog to digital. Interested persons might review E.O. 12472, as amended, and Parts 201-212 of Title 47. The NTSTAC (National Telecommunications Advisory Committee) and the NCS (National Communications System) was designed in part to deal with getting command and control info out from authorized National Command Authority to those who needed it. But this posting shows how the reverse/inverse of that problem is key for intelligence gathering. Only two federal entitites argued against the At&T Consent Order break up, DOD and FEMA. AT&T used to provide service on request and bill accordingly with little review at FEMA and probably DOD also. Basically AT&T was part of the US government. Then of course the “Free Market” entered. Now non-state actors have real communications capability between encryption and disposal of pre-paid cell phones. This is probably the most difficult arena of public policy in the current crisis of balancing rights vis a vis responsiblities and civil liberties generally. Almost no info appears in learned legal journals about it mainly because considered too arcane (other arena is torture and incarceration(actually just that the law generally defends the existing system and does not analyze what should be or is it just laziness?) anyhow by the late 70’s hair-pulling had already started at NSA and their small legal staff was never funded or equipped to deal with privacy issues and civil liberties issues even thought they performed valiantly. Now just a race to see who has what technical capability-transmissin, reception, interception, analysis! Doubtfull that an all or nothing approach on collection is the correct one but likely to be the choice. Perhaps the real questions are what private capabilities will be tolerated and marketed? Will always be of interest to me when free marketeers are faced with life and death choices based on all those willing to buy and all those willing to sell (but unlike true economic theory neither being in full possession of the facts or in some cases their senses.)
Bob Devine, respectfully, there is an underlying assumption in your argument that we are dealing with a government that follows the rule of law and tells the truth. I direct your attention to the “Justice Department” under Gonzales and Mukasey, the U.S. attorney firings, the Siegelman prosecution, Scooter Libby. I could go on and on…but I think you get my point.
Colonel,
ex-at&t employee says the fisa ‘compromise’ is setting the groundwork for a police state.
http://blog.wired.com/27bstroke6/2008/06/att-whistleblow.html
AT&T Whistleblower: Spy Bill Creates ‘Infrastructure for a Police State’ | Threat Level from Wired.com
J
Thank you very much for the reference to the article on the ATT case and the work of courageous whistleblower Mark Klein. Highly recommended. Here is the money quote:
“Klein saw a network monitoring room being built in AT&T’s internet switching center that only NSA-approved techs had access to.”
That quote describes the mechanism that will allow the creation of a police state. Once the telecoms have immunity from civil liability, then the government can embed people at the telecoms to monitor any and all calls, for any reason. Very easy to do and it will all but eradicate the 4th Amendment.
I have not read the FISA legislation. John Dean has, and he said the legislation was horribly written.
Apparently, the FISA legislation does not preclude criminal prosecution but I don’t think the Feds are interested. Are the States? Expect more litigation.
All these issues are hurdling to the courts. In my opinion, our judiciary is the best, and probably final, hope to prevent the creation of an imperialistic state with no 4th amendment rights. Gonna’ be a close call though. If you haven’t done so already, you may want to look at some of the work of Robert Unger and the role of the judiciary during the days of the Weimar Republic.
I am will be curious to see the position taken by ol’ born fighting, Sen. Webb, on the FISA amendments. Right now, Webb has me confused. I grew up in a “Scot-Irish” Southern town. Something is amiss, assuming he votes for the FISA amendments. But maybe he’ll oppose this legislation and become the one we all hoped for.
Again, thanks.
All-
I’m trying to shy away from a nitty-gritty technical discussion here. But I’ll dig into this issue a tiny bit.
I’ve recently read the FISA code that is on the books as well as the technical standards for CALEA, and breezed over the FISA amendment. Plus, I just finished the documents by the AT&T tech.
First of all, this room cannot monitor “the entire Internet.” It can definitely monitor all traffic that is “bridged” via the optical splitters. That is not downplaying the amount of traffic it can collect – all these optical carriers (OC3, OC48, etc) can carry a lot of traffic. Looking at the service providers AT&T is peering with, these circuits are most likely connecting together what are called tier 1 and 2 service provider routers. Tier 1 service providers are the backbone for the Internet, and tier 2 service providers are usually large ISPs and connect to the Internet backbone through tier 1 ISPs.
Without getting into the nitty-gritty of IP routing, the chances of all Internet traffic getting routed through the US backbone network is slim to none. So even if the government bridged onto each tier 1 router it would still not see all the Internet’s traffic.
There is definitely some shock value in someone declaring that the NSA can scoop up every Internet packet. To me that is more fantasy than reality. What I’m more interested in is CALEA.
From what I’ve gathered from the FISA code and CALEA readings, there is a good possibility that this monitoring site is perfectly legal. I don’t know. If it is legal, we would need to be concerned about how far CALEA is allowed to progress. As we just learned in the DC gun ban law, an unconstitutional law can sit on the books for a long, long time.
I’m hoping to wrap up this topic with another post soon – there were some sloppy points in my first one.
Cheers…..
Thanks for doing a further post on this, CWZ. Appreciate all your effort/expertise on this important topic.