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Legal loophole emerges in NSA spy program An AT&T attorney indicated in federal court on Wednesday that the Bush administration may have provided legal authorization for the telecommunications company to open its network to the National Security Agency. Federal law may "authorize and in some cases require telecommunications companies to furnish information" to the executive branch, said Bradford Berenson, who was associate White House counsel when President Bush authorized the NSA surveillance program in late 2001 and is now a partner at the Sidley Austin law firm in Washington, D.C. Far from being complicit in an illegal spying scheme, Berenson said, "AT&T is essentially an innocent bystander." AT&T may be referring to an obscure section of federal law, 18 U.S.C. 2511, which permits a telecommunications company to provide "information" and "facilities" to the federal government as long as the attorney general authorizes it. The authorization must come in the form of "certification in writing by...the Attorney General of the United States that no warrant or court order is required by law." Information that is not yet public "would be exculpatory and would show AT&T's conduct in the best possible light," Berenson said. But he did not acknowledge any details about the company's alleged participation in the NSA's surveillance program, which has ignited an ongoing debate on Capitol Hill and led to this class-action lawsuit being filed in January by the Electronic Frontier Foundation. Some legal experts say that AT&T may be off the hook if former Attorney General John Ashcroft, who was in office at the time the NSA program began, provided a letter of certification. (Other officials, including the deputy attorney general and state attorneys general, also are authorized to write these letters.) Injecting additional complexity is 18 U.S.C. 2511's prohibition on disclosure. It says that telecommunication companies may not "disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance"--except if required by law. Unlawful disclosures are subject to fines....
Bush denies eavesdropping on U.S. phones President Bush insisted Tuesday that the United States does not listen in on domestic telephone conversations among ordinary Americans. But he declined to specifically discuss the government’s alleged compiling of phone records, or whether it would amount to an invasion of privacy. “We do not listen to domestic phone calls without court approval,” Bush said in an East Room news conference with Australian Prime Minister John Howard. “What I’ve told the American people is we’ll protect them against an al-Qaida attack. And we’ll do that within the law,” Bush said. The president’s new press secretary, Tony Snow, later insisted that Bush’s comments did not amount to a confirmation of published reports that the NSA’s surveillance was broader than initially acknowledged and that it included secretly collecting millions of phone-call records. Bush said, “This government will continue to guard the privacy of the American people. But if al-Qaida is calling into the United States, we want to know, and we want to know why.” However, he did not respond directly when asked whether it was a violation of privacy for the National Security Agency to seek phone records from telephone companies....
Verizon denies giving NSA phone records Verizon Communications Inc. says it did not give the government records of millions of phone calls, joining fellow phone company BellSouth in disputing key assertions in a USA Today article. The denials leave open the possibility that the National Security Agency requested customer calling data from long-distance companies like AT&T, Sprint and MCI in 2001, but not from companies that were mainly local phone companies, such as Verizon. Verizon has not provided customer call data to the NSA, nor had it been asked to do so, the company said in an e-mailed statement Tuesday. The statement came a day after BellSouth Corp. issued a similar denial. "One of the most glaring and repeated falsehoods in the media reporting is the assertion that, in the aftermath of the 9/11 attacks, Verizon was approached by NSA and entered into an arrangement to provide the NSA with data from its customers' domestic calls," the statement read....
Bush agrees to full NSA oversight by Congress The White House, in an abrupt reversal, will allow the full Senate and House of Representatives intelligence committees to review President George W. Bush's domestic spying program, congressional officials said on Tuesday. Two days before the program was expected to dominate Air Force Gen. Michael Hayden's Senate confirmation hearing as CIA director, the Republican chairmen of the Senate and House panels said separately that Bush had agreed to allow full committee oversight of his Terrorist Surveillance Program. The program, which allows the National Security Agency to eavesdrop on the international phone calls and e-mails of U.S. citizens without first obtaining warrants, has stirred an outcry in Congress among lawmakers who believe Bush may have overstepped his constitutional authority. Up to now, the White House has sought to avoid full committee oversight by limiting briefings to subcommittees from each panel. Initially, the administration shared program details only with the chairmen and vice chairmen of the committees and party leaders in the House and Senate....
The Right Call on Phone Records On Thursday, USA Today reported that three U.S. telecommunications companies have been voluntarily providing the National Security Agency with anonymized domestic telephone records -- that is, records stripped of individually identifiable data, such as names and place of residence. If true, the architect of this program deserves our thanks and probably a medal. That architect was presumably Gen. Michael Hayden, former director of the NSA and President Bush's nominee to become director of the Central Intelligence Agency. The potential value of such anonymized domestic telephone records is best understood through a hypothetical example. Suppose a telephone associated with Mohamed Atta had called a domestic telephone number A. And then suppose that A had called domestic telephone number B. And then suppose that B had called C. And then suppose that domestic telephone number C had called a telephone number associated with Khalid Sheik Mohammed, the mastermind of the Sept. 11, 2001, attacks. The most effective way to recognize such patterns is the computerized analysis of billions of phone records. The large-scale analysis of anonymized data can pinpoint individuals -- at home or abroad -- who warrant more intrusive investigative or intelligence techniques, subject to all safeguards normally associated with those techniques. Clearly, there is a compelling national interest in understanding and penetrating such terrorist networks. If the people associated with domestic telephone numbers A, B and C are inside the United States and had facilitated the Sept. 11 attacks, perhaps they are facilitating a terrorist plot now. The American people rightly expect their government to detect and prevent such plots. The Telecommunications Act of 1934, as amended, generally prohibits the release of "individually identifiable customer proprietary network information" except under force of law or with the approval of the customer. But, according to USA Today, the telephone records voluntarily provided to the NSA had been anonymized. In addition, the Electronic Communications Privacy Act of 1986 explicitly permits telecommunications companies to provide customer records to the government if the government asks for them. So it would appear that the companies have been acting not just in the public interest, but also within the law and without encroaching on the privacy of any of their customers....
Nothing Personal When I shop at the Giant, because the bar code on my Bonus Card is no longer readable, I instead use an "alternate ID": my phone number. When I call my cable company, the service rep can use my phone number to find my records. When I get a new credit card in the mail and call to activate it, the credit card company can tell it's me because of the phone line I'm using. According to defenders of the Bush administration's domestic phone call database, which includes regularly updated information about the calls made and received by some 200 million Americans, my grocery store, my cable company, and my credit card company can identify me based on my phone number, but the National Security Agency can't. At least, that's the implication when people say the database is legal because the information in it has been "anonymized"--i.e., stripped of names and addresses. But as USA Today pointed out when it revealed the existence of this program, phone numbers can readily be linked to names and addresses using publicly available information. The claim that there's really nothing personal or private about the phone call records--which tell the NSA who calls whom, when, and for how long--is therefore a tenuous basis for defending the legality of data collection that ordinarily requires a court order or the customer's consent. Tenuous legal arguments are what we've come to expect from the Bush administration when it defends controversial measures aimed at fighting terrorism, including coercive interrogation techniques, improvised military tribunals, and the indefinite detention of unilaterally identified "enemy combatants." The arguments are weak partly because President Bush doesn't really think he needs them. When it comes to terrorism, as Gene Healy and Timothy Lynch observe in a new Cato Institute analysis of the president's constitutional record, "the Bush administration comes perilously close" to Richard Nixon's position: "When the president does it, that means it is not illegal." Officials at Qwest, the one major phone company that refused to give the NSA its customers' records, were not persuaded by that argument. They knew they could face hefty penalties under at least two statutes, the Communications Act and the Electronic Communications Privacy Act, if they revealed this information without their customers' consent unless they were legally required to do so....
Judge Keeps Papers Sealed in AT&T Spy Suit Secret documents that allegedly detail the surveillance of AT&T phone lines under the Bush administration's domestic spying program can be used in a lawsuit against the telephone giant, a federal judge ruled Wednesday, but the records will remain sealed. U.S. District Judge Vaughn Walker rejected a bid by AT&T Inc. to return the records that were given to the privacy advocate Electronic Frontier Foundation by a former AT&T technician. But Walker said the records would remain under seal until it can be determined whether they reveal trade secrets. ``The best course of action is to preserve the status quo,'' Walker said. The hearing is the first in a lawsuit challenging the administration's secretive domestic surveillance program. The lawsuit, filed by EFF in U.S. District Court, accuses AT&T of illegally cooperating with the National Security Agency to make communications on the company's networks available to the spy agency without warrants. ``They are asking this court to suppress evidence of AT&T's criminal activity,'' EFF lawyer Maria Morris said in arguing that the records remain part of the case....
Congress may make ISPs snoop on you A prominent Republican on Capitol Hill has prepared legislation that would rewrite Internet privacy rules by requiring that logs of Americans' online activities be stored, CNET News.com has learned. The proposal comes just weeks after Attorney General Alberto Gonzales said Internet service providers should retain records of user activities for a "reasonable amount of time," a move that represented a dramatic shift in the Bush administration's views on privacy. Wisconsin Rep. F. James Sensenbrenner, the chairman of the House Judiciary Committee, is proposing that ISPs be required to record information about Americans' online activities so that police can more easily "conduct criminal investigations." Executives at companies that fail to comply would be fined and imprisoned for up to one year. Until Gonzales' speech, the Bush administration had explicitly opposed laws requiring data retention, saying it had "serious reservations" about them. But after the European Parliament last December approved such a requirement for Internet, telephone and voice over Internet Protocol (VoIP) providers, top administration officials began talking about it more favorably....
The Ultimate Net Monitoring Tool The equipment that technician Mark Klein learned was installed in the National Security Agency's "secret room" inside AT&T's San Francisco switching office isn't some sinister Big Brother box designed solely to help governments eavesdrop on citizens' internet communications. Rather, it's a powerful commercial network-analysis product with all sorts of valuable uses for network operators. It just happens to be capable of doing things that make it one of the best internet spy tools around. "Anything that comes through (an internet protocol network), we can record," says Steve Bannerman, marketing vice president of Narus, a Mountain View, California, company. "We can reconstruct all of their e-mails along with attachments, see what web pages they clicked on, we can reconstruct their (voice over internet protocol) calls." Narus' product, the Semantic Traffic Analyzer, is a software application that runs on standard IBM or Dell servers using the Linux operating system. It's renowned within certain circles for its ability to inspect traffic in real time on high-bandwidth pipes, identifying packets of interest as they race by at up to 10 Gbps. Internet companies can install the analyzers at every entrance and exit point of their networks, at their "cores" or centers, or both. The analyzers communicate with centralized "logic servers" running specialized applications. The combination can keep track of, analyze and record nearly every form of internet communication, whether e-mail, instant message, video streams or VOIP phone calls that cross the network....
Bush stomps on Fourth Amendment THE ESCALATING controversy over the National Security Agency's data mining program illustrates yet again how the Bush administration's intrusions on personal privacy based on a post-9/11 mantra of ''national security" directly threaten one of the enduring sources of that security: the Fourth Amendment ''right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Supreme Court held in 1967 that electronic eavesdropping is a ''search" within the meaning of the Fourth Amendment, recognizing that our system of free expression precludes treating each use of a telephone as an invitation to Big Brother to listen in. By 2001, the court had come to see how new technology could arm the government with information previously obtainable only through old-fashioned spying and could thereby convert mere observation -- for example, the heat patterns on a house's exterior walls -- to a ''search" requiring a warrant. To read the Constitution otherwise, the court reasoned, would leave us ''at the mercy of advancing technology" and erode the ''privacy against government that existed when the Fourth Amendment was adopted." This decision, emphasizing the privacy existing when the Bill of Rights was originally ratified in 1791, was no liberal holdover in conservative times. Its author was Justice Antonin Scalia. Justice Clarence Thomas joined the majority. Justice John Paul Stevens wrote the dissent. This issue should not divide liberals from conservatives, Democrats from Republicans. These two decisions greatly undermine the aberrant 1979 ruling on which defenders of the NSA program rely, in which a bare Supreme Court majority said it doubted that people have any ''expectation of privacy in the numbers they dial," since they ''must 'convey' [such] numbers to the telephone company," which in turn can share them with others for purposes like ''detecting fraud and preventing violations of law." Unconvincing then, those words surely ring hollow today, now that information technology has made feasible the NSA program whose cover was blown last week. That program profiles virtually every American's phone conversations, giving government instant access to detailed knowledge of the numbers, and thus indirectly the identities, of whomever we phone; when and for how long; and what other calls the person phoned has made or received. As Justice Stewart recognized in 1979, a list of all numbers called ''easily could reveal . . . the most intimate details of a person's life."
Mexico vows to sue if Guard detains Mexico said yesterday that it would file lawsuits in U.S. courts if National Guard troops on the border become directly involved in detaining migrants. Mexican border officials said they worried that sending troops to heavily trafficked regions would push migrants into more perilous areas of the U.S.-Mexico border to avoid detection. President Bush announced Monday that he would send 6,000 National Guard troops to the 2,000-mile border, but they would provide intelligence and surveillance support to U.S. Border Patrol agents, not catch and detain illegal aliens. "If there is a real wave of rights abuses, if we see the National Guard starting to directly participate in detaining people ... we would immediately start filing lawsuits through our consulates," Mexican Foreign Secretary Luis Ernesto Derbez told a Mexico City radio station. He did not offer further details. Mexican officials worry that the crackdown will lead to more deaths. Since Washington toughened security in Texas and California in 1994, migrants have flooded Arizona's hard-to-patrol desert, and deaths have spiked. Migrant groups estimate that 500 people died trying to cross the border last year. The Border Patrol reported 473 deaths in the fiscal year ending Sept. 30. In Ciudad Juarez, Julieta Nunez Gonzalez, local representative of the Mexican government's National Immigration Institute, said yesterday that she would ask the government to send its migrant protection force, known as Grupo Beta, to more remote sections of the border....
Bush Turns to Big Military Contractors for Border Control The quick fix may involve sending in the National Guard. But to really patch up the broken border, President Bush is preparing to turn to a familiar administration partner: the nation's giant military contractors. Lockheed Martin, Raytheon and Northrop Grumman, three of the largest, are among the companies that said they would submit bids within two weeks for a multibillion-dollar federal contract to build what the administration calls a "virtual fence" along the nation's land borders. Using some of the same high-priced, high-tech tools these companies have already put to work in Iraq and Afghanistan — like unmanned aerial vehicles, ground surveillance satellites and motion-detection video equipment — the military contractors are zeroing in on the rivers, deserts, mountains and settled areas that separate Mexico and Canada from the United States. It is a humbling acknowledgment that despite more than a decade of initiatives with macho-sounding names, like Operation Hold the Line in El Paso or Operation Gate Keeper in San Diego, the federal government has repeatedly failed on its own to gain control of the land borders. Through its Secure Border Initiative, the Bush administration intends to not simply buy an amalgam of high-tech equipment to help it patrol the borders — a tactic it has also already tried, at a cost of hundreds of millions of dollars, with extremely limited success. It is also asking the contractors to devise and build a whole new border strategy that ties together the personnel, technology and physical barriers....