Big Brother Is Watching ... Us???

ABC News reports that "the government is tracking the phone numbers we call in an effort to root out confidential sources" -- this according to, well, ABC's confidential sources.

According to the post at ABC's Blotter blog, sources also say the CIA leak investigation has included the examination of "phone calls and contacts" not just from ABC, but also from the New York Times and -- you guessed it -- The Washington Post. The writers of the story specifically say this is not a case of phone tapping, but "a pattern of phone calls from a reporter ... could provide valuable clues for leak investigators" about the identity of the reporter's confidential source.

If true, this is doubleplusungood.

Debaters?

By Emily Messner |  May 15, 2006; 12:43 PM ET  | Category:  National Politics
Previous: Big Brother Is Watching ... Us??? | Next: Never Underestimate the Fallability of Technology

Comments

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Why should journalists be exempt from a practical investigative tool?

Posted by: Will | May 15, 2006 01:07 PM

Why should journalists have their privacy invaded?

Posted by: Geb | May 15, 2006 01:30 PM

Shall we refer to the laws governing the operation of foreign intelligence agencies within the borders of the US?

If the FBI were tracking these calls, with a court ordered warrant, as part of an investigation into the divulging of classified intelligence by US Government personnel, then so be it. But, I don't think that is what we are talking about here.

And, since it is HIGHLY questionable as to WHAT this administration is doing with our "highly effective tools" with regard to LEGALITY. It can be assumed that those who are leaking the information would be covered under the "whistle blower" laws.

See, if BushCo would have just worked to provide clarity and legal processes by which to carryout their programs, we wouldn't be in the mess. But, because they were afraid they wouldn't get the laws changed...and for good reason IMO...then they decided to go and do it anyway. Well, this kind of careless disregard for the laws of our nation comes with consequences. Those consequences are beginning to come to roost.

If US Government employees are breaking the law, regardless of the intent, and it is being done as a matter of POLICY...then America is BETTER served via transparency then secrecy.

Again, I will not give up my Liberty for the pipe dream of absolute safety...especially when such a pledge comes from an administration so rife with incompetence.

Posted by: AfghanVet | May 15, 2006 01:50 PM

Why would politicians in control of secret govt surveillance tools not be tempted to use it to swiftboat their opponents?

If you work for the CIA and your numbers keep showing up on a reporter's list they can pretty much tell what you are up to.

If you are a senator and you keep calling an escort service or the wife of your top aide you better not oppose them on the next confirmation hearing...

The possibility is endless.

Posted by: | May 15, 2006 02:12 PM

On the other hand tens of millions of illegal aliens live and work and stage massive demonstrations openly and w/o fear, ain't we a free society or not?

Posted by: | May 15, 2006 02:21 PM

Come to think of it, free is not the exact right word. Lawless maybe, from top to bottom?

Posted by: | May 15, 2006 02:24 PM

Why not just break into the office of Daniel Ellsberg to find out if he was the source of the Pentagon Papers leak ... oh yea, that's been done...

Some things are never learned from history, like what H.R. Haldeman said to President Nixon, Monday, 14 June 1971, at a taped meeting.

"But out of the gobbledygook, comes a very clear thing: you can't trust the government; you can't believe what they say; and you can't rely on their judgment; and the - the implicit infallibility of presidents, which has been an accepted thing in America, is badly hurt by this, because it shows that people do things the President wants to do even though it's wrong, and the President can be wrong."

Posted by: Sully | May 15, 2006 02:25 PM

Geb-

For the same reason we would invade the privacy of a suspected murderer by checking his alibi vs. subpoened phone records. The presumption of Messer's article is that journalists should somehow be exempt from a normal investigative tool. As a non-journalist I'd like to know why she feels that way.

Posted by: Will | May 15, 2006 03:07 PM

"subpoened phone records"?

Where have you been? No need for subpoenas or court warrants when the phone companies turn over their whole databases of every phone call made in this country everyday. Heck they may even have real time access to the phone company computers.. They probably know who post which message when on this very blog.

Posted by: | May 15, 2006 03:33 PM

Really?...

Posted by: Emilio | May 15, 2006 03:50 PM

Can the actions of the government be possibly justified? Claro que si. What if those "confidential sources" are in fact agents of terrorist organizations that use the free American press to (mis|dis)inform the average American?

Posted by: Emilio | May 15, 2006 04:16 PM

Let me clarify:

I have a problem with warrantless wiretaps. If the government is spying on ABC reporters without justification (warrant or subpoena) then that is problematic.

The article does not make clear, however, what process (if any) is used to determine which phone calls are accessed by the Government. What it does make clear is that the content of the phone calls is not being investigated, just the calling pattern.

I would have a problem if the government did NOT use phone patterns to track down people who commit crimes. Ms. Messner implies that this process is very bad... if reporters are involved. I'm still waiting on why journalists who commit crimes should be exempt when non-journalists who commit crimes are not.

Posted by: Will | May 15, 2006 04:20 PM

Hey Emilio,
What if president Bush is a Mexican agent whose job it is to see thatour immigration laws are not enforced. Or maybe Bush is an agent of the Arabs (he was holding hands with a Saudi prince's hand you know) and is working to get more Arab influence in America (i.e., Dubai Ports World?). Maybe someone whould be overseeing what this president is doing! Oh, I forgot, the Congress is SUPPOSED to do this.

Are we being asked to trust the president because he is trying to protect us from every imagined threat but for congress to not oversee what Bush is doing as required under the constitution because Bush waves his hands saying it is all legal? Just where does it say the president has power over the congress? As I read the constitution its the other way around.

Posted by: Sully | May 15, 2006 04:25 PM


BREAKING NEWS!!!!!!!!!!

http://blogs.abcnews.com/theblotter/2006/05/federal_source_.html

Federal Source to ABC News: We Know Who You're Calling

May 15, 2006 10:33 AM

Brian Ross and Richard Esposito Report:

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

One former official was asked to sign a document stating he was not a confidential source for New York Times reporter James Risen.

Our reports on the CIA's secret prisons in Romania and Poland were known to have upset CIA officials. The CIA asked for an FBI investigation of leaks of classified information following those reports.

People questioned by the FBI about leaks of intelligence information say the CIA was also disturbed by ABC News reports that revealed the use of CIA predator missiles inside Pakistan.

Under Bush Administration guidelines, it is not considered illegal for the government to keep track of numbers dialed by phone customers.

The official who warned ABC News said there was no indication our phones were being tapped so the content of the conversation could be recorded.

A pattern of phone calls from a reporter, however, could provide valuable clues for leak investigators.

Posted by: che | May 15, 2006 04:40 PM

Ummm...what is up with this debate? Are we really be censored?

Posted by: AfghanVet | May 17, 2006 02:13 PM

Ironic isn't it? The Post and Times both were supportive of the Bush Administrations reasons for invading Iraq and now they are worried about wire tapping by the same administration who promised to "do what ever it takes to keep this country safe". Since fear and politics are their only tools to manipulate the voting public it's not suprising that they would have stooped to this illegal tactic. Those of us who didn't support this President and his band of cronies have always expected it would come to this. It makes me think that whoever said "those who are ready to give up freedom for security deserve neither" was right on. Maybe the Post and Times will do some real investigative journalism now and we can see some actual justice for the law breakers.

Posted by: Doug F | May 17, 2006 02:26 PM

This is getting ridiculous.

Nothing (and I'm probably one of the few who read essentially EVERYTHING there) in the previous thread was remotely close to inappropriate.

I will assume that the blog deletions are the result of technical difficulties. I'd appreciate confirmation of that, as would others.

Posted by: Will | May 17, 2006 02:39 PM

Probably the hackers are in control. Or maybe the 'miners'...

Posted by: Groundhog | May 17, 2006 02:52 PM

catholic...

pope emily,

is feeling inquisitional...


mis tidy botome

Posted by: I think it's the inner | May 17, 2006 03:01 PM

Wha happend?
And why is it May 17 at 3am?
Am I dreaming?
Is that you NSA?

Posted by: Sully | May 17, 2006 03:10 PM

Oh, its 3pm.

Looks like technical difficulties. All is gone between:
May 15, 2006 04:40 PM
and
May 17, 2006 02:13 PM

Posted by: Sully | May 17, 2006 03:11 PM

The notion that the government would set up such a data base and then restrain itself, without judicial oversight, from using it for other purposes requires a childlike faith in mere mortal. In a case in which I participated in the defense of an American company, prosecutors asked potential witnesses about my telephone calls to other potential witnesses in Europe. The agents were so clumsy that they reportedly refered to a sheet documenting the calls. Of course, they also were reported to threaten said witnesses with prosecution if they didn't say what they wanted. Just because the government may leave Joe Sixpack alone at first doesn't mean that agents displeased with Joe, for any reason, including purely personal reasons, at some later time won't use that database for other purposes. One reason we require warrants is to keep police officers from abusing their power for personal gain or to settle personal scores or from just being sloppy and misdirected. Just because we tack the label of "war on terror" on a program doesn't mean that it won't be susceptable to abuse, fraud,extortion, mismangement, or any of the other ills that affect law enforcement when allowed to operate without judicial review.

Posted by: Mike Deal | May 17, 2006 03:13 PM

Second time this has happened. I think it deleted back to post 15 yesterday as well. Since CHE owns the last non deleted post, let's go ahead and blame him.

A few of us have now written volumes on this subject not once... but twice. And have seen them deleted both times. If this WaPo blog cannot ensure that my content is safe then I'll simply go elsewhere.

At the very least I think we are owed some explanation. I was reluctant to complain yesterday, but we are approaching 48 hours later. Not even a word from on high?

Posted by: Will | May 17, 2006 03:24 PM

Don't mess with Big Brother! Don't even blog!

Yes that includes you Will...

Posted by: BB | May 17, 2006 04:33 PM

Big Brother is all seeing, all knowing, all blogging.

Yes!


But to expel all eleven million illegal immigrants is impractical however.

Posted by: BB | May 17, 2006 04:53 PM

Stalin and Saddam didn't try to break down their paranoid suspicions to the level of the individual; they just wiped out the village.

Seems like we are experiencing the electronic equivalent on this blog.

Be good Americans all! A right not exercised is a right that is lost.

Posted by: On the plantation | May 17, 2006 05:12 PM

Reall there is no discussion when you recall freedom. It is what thousands of americans died defending.
The law, congress and senate, as well as military, all are governed by law and that governs our freedom. take away any freedoms and you lose all.
The Patriot act guaranteed this would be happening.
The secrecy of this administration , accepted and even haraled by soiety and our roll over attitude is what we need to fear. there are tooo many people willing to sacerfice freedoms foe some supposed safety.

History tells the tale of those who felt the same. don't our children study history anymore. or are they just too busy studying for tests to keep their funding. THERE is no defense for government we ellected to break the law.NONE

Posted by: MHMW83 | May 17, 2006 05:18 PM

It is technical difficulties! I'm tearing my hair out. We're doing our best to get everything restored.

Posted by: Emily Messner | May 17, 2006 05:38 PM

Wow, This stinks. there were some great posts that have disappeared. I've been waiting all day to put in my two cents, but I can't reference most of what I wanted to refer to.

Oh well with any luck the same thing will happen to the NSA's phone call database. - Fat chance of that.

Posted by: DK | May 17, 2006 05:39 PM

It is technical difficulties! I'm tearing my hair out. We're doing our best to get everything restored.

Posted by: Emily Messner | May 17, 2006 05:38 PM

Muchas gracias, all I wanted to hear. Hope everything gets restored.

Posted by: Will | May 17, 2006 05:45 PM

Big brother is not merely watching, he/she is also remembering, essentially forever.

Expressing the full force of free expression in a direct and confrontational but civil manner, for those who are true Americans, is the only courageous decision.

If this invites some surveilling thug to knock at my front door, a possibility not to be denied, then just be sure to put me at the top of the calling list for the jackboots.

Each citizen is accountable for their communicated words, so they should be always intelligently chosen. It's the distortions and the idiot misinterpretations one has to defend against, and that covers a lot of ground in this oligachic and technology-enhanced paranoid society we presently inhabit.

Posted by: On the plantation | May 17, 2006 06:30 PM

Superpower (Blasphemous Term) Gone Bad!

These and other questionable steps taken by this current Administration would not be neccesary if our country were to take a simple change of direction, i.e., to allow the peacemakers on this planet to have a voice and to change the direction of America's domestic and foreign policy. America is the sole country that is responsible for most of the tensions around the world!

Until that change of direction occurs, it will be our grandchildren and great grandchildren that will be subjected to more of the same, surveillance, terrorism, unjust wars and acrimony, in future decades if not centuries to come. We could change the course of history if we wanted to do so, but first we have to rid ourselves of the bitter and childish warlike policies and nefarious activites of the United States of America.

I wonder how historians will remember this generation?

Here is a riddle for you all. I was told that, "America Has The Right To Be A Nation of Recent History". What does that mean to you?

Peace & Grace,

Posted by: Rev. C. Solomon | May 17, 2006 06:42 PM

why ar3e you attempting to redirect me?

is it because I called the president that you worship what you consider he is

in publicK?


do tell,

or was it the tidy boottome comment?


cloven hooves echoing through your office space and between your ears?


Posted by: who do _you_ think you're dealing with emily? | May 17, 2006 07:35 PM

I've posted similar things on Early Warning and the Fix...

only miss tidy bottom has her pants in a bunch about it...


she is censoring.

that's the truth....

what a useless liar.

.

Posted by: c'mon knock it off... | May 17, 2006 07:37 PM

either


whoever is managing her website is shucking her or her manager is or she's is

http://blog.washingtonpost.com/thedebate/2006/05/big_brother_is_watching_us.html

Posted by: actually you can get the olde one here... | May 17, 2006 07:47 PM

larger issue of oversight...

you're reasoning presumes that they have a legal reason for asking


they don't


no more than I have a legal reason for asking you why you were kissing 12 year olds when you were 15....


you want that on your record?


anyone,


the way things are going can be held responsible, as part of public record,


for anything that they have done...


you're moving into a transparent society,


there are online maps available of every square inch of USA from spys in the sky...


listen closely,


when it's revealed that you can look at the rooftop of any house inthe United States with _available_ footage from a commercial online site,


what do you think NSA has?


can they watch you right now as you walk out to the back porch with your playboy naked?


is that cool?

two twelve year old children kissing, is that any of their business, or those same children discussing what is happening to them as they enter puberty,

is that their business?


you can give away your rights all that you want to but shut up

about giving mine away,

okay?


you want to dance that's fine...it's you final one.

.

Posted by: actually you're ignoring the | May 17, 2006 07:49 PM

7 years ago?


do you want people to be able to google that?


what company has the right to ask you if you've ever been involved in litigation?


none.


but it shows up on your credit check.


some companies will not hire you if you've been involved in litigation....it means you might sue them...

since you're not an employee yet, they can screen you and refuse to offer you a job based upon the fact that you had to sue a drunken driver to get your car paid for....


is that _fair_ ?


it's a fact....that is the way things are set up for companies _right now_


out sourcing,

downsizing,

international corporations,

_illegal_ immigration


taking your rights,


it's all part of making the peasants peasants again....


taking back


all of the gains that we've fought for over the last three centuries....


being done


right


now.

.

Posted by: did you have a bout of depression | May 17, 2006 07:51 PM

http://blog.washingtonpost.com/thedebate/2006/05/big_brother_is.html


Big Brother IS....


and Emily's steering....

oh she's a cagey one....


sey siree

Posted by: is guess the blog title says it all... | May 17, 2006 07:52 PM

_illegal_ immigration?


do you think when our marginalized citizens are being swept under the carpet that we should be concerning ourselves with those that have stolen their way into our lives


and are taking our congresses time and spending what money isn't diverted into the


OCCUPATION EFFORT


and away from schools, old people and children as well as single mothers that...


we should turn our backs on our own,


like your president, congress and sitting administration would have you do...


so that they don't look bad?


poisoning our stream with their distorted view of reality....?


do you get it?


the real profaning of our country is being done by


_this_ congress


and your effing president.


the bridge to nowhere is "still in progress"

and your politicians are building it


with your sacrosanct approval miss tidy bottome....gro u p thank you very much.


.


be a force for change not stinkyneess described as "oh, that's too mhcu"

otay?

.

Posted by: and how do you feel about | May 17, 2006 08:01 PM

try changing the title of the blog from


big_brother_is.html


to big_brother_is_watching_us.html


and see what they are having such a hard time restoring?????????????


oh my...please quit itwh the jibber habber..

.

Posted by: doing our best to get everything restored... | May 17, 2006 08:12 PM

"jibber habber"? "tidy boottome"??

Come on, quasi-Debater-who-can't-come-up-with-a-name! If comments were being surgically removed with any sort of intention or precision, would it really have come out such a mess?

A more detailed explanation of why we now have three different posts with the same name will follow tonight or tomorrow. I'll also be posting a PDF file that has all the comments, in chronological order, for anyone who can't bear to jump from post to post. (I wouldn't blame you.)

For now, thanks to quasi-Debater for putting up the link to some of the old comments:

http://blog.washingtonpost.com/thedebate/2006/05/big_brother_is_watching_us.html#comments

And for the rest of the comments, including plenty of duplicates, go to the other blog post that has the same title as this one:

http://blog.washingtonpost.com/thedebate/2006/05/big_brother_is_1.html#comments

To try to keep the rest of it tidy -- or "tidy boottome," if you prefer -- the only place to add comments is right here. So gab away.

Posted by: Emily Messner | May 17, 2006 08:38 PM

to be...

miss soggy bottome...

.

Posted by: I have a name it is whatever I realize the truth | May 17, 2006 08:40 PM

Howard U.

Posted by: next stop | May 17, 2006 08:42 PM

next stop
Howard
U

you sure?

not

Fort Meade
where

de miners
deblog

miss e's
tidy


boottome
twice


already?


Posted by: deminer needed to counter de miners apply at wapo asap | May 17, 2006 10:38 PM

Will,

I've been watching all day in admiration as you put up a stout defense against superior numbers of empassioned bloggers trying desperately to tear you down. Now, if you don't mind, I'm going to take my shot.

In your response to my last post you said that you thought the article cited by Emily described a fairly targetted application of phone number checking. When reading the same article I come to a very different conclusion. Ross and Esposito report that one source was speaking specifically about them, but they go on to say that other sources report a wider net being cast:

"Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation."

That combined with the recent revelation of the NSA developing the largest database known to mankind composed of records of all phone calls (number to number) made over the last 4 or 5 years (its mind-boggling) cause me to believe this is a widespread application. Admittedly Ross and Esposito say they don't know if the surveillance they are under is connected to that effort, but I have a hard time believing at this point that we are talking about investigators getting a few hundred pages of printouts from a phone company mainframe the way they would have back in 1979.

To me this is the crux of the issue. I'm not trying to attack a focused application of checking phone call records in a criminal investigation where there is legitimate suspicion of an individual. I can see your point about preserving law enforcement tools that have been in play for many years. The problem I have is taking it to the next level that the fast growth in technology has made possible. Our existing laws are woefully inadequate to handle situations such as these. There needs to be a comprehensive look at our privacy laws in conjunction with data ownership and stewardship, FOIL, and online access to government records and credit records. At the very least there ought to be manditory notification to individuals on a monthly basis of all credit checks, phone call checks, property record checks, and probably other checks that aren't popping into my head at the moment - unless as part of a focused criminal investigation - and then only after a waiver granted by a judge (similar to getting a warrant).

Smith vs, MD set an important precedent, I'll grant you that, but the times they are a'changin'. What wasn't possible in 1979 is possible now. New law is needed to address those new possibilities.

As far as these leakers that the government is going after, I find myself in agreement posts that have expressed support of those who after years of watching what they consider to be illegal government activities taking place, all the while expecting to see another branch of the government step up and challenge it, become so sickened by their conscience that they finally take the very big risk of telling a reporter about the program that they believe is illegal. The reporter also takes a big risk in publishing the story. I can't think of them as criminals until the program they are leaking about is found to be legal. So, leakers are innocent until they are proven guilty just like the government officials are innocent until they are proven guilty. What is needed are real hearings (with people put under oath, and tough questioning) to get to the bottom of it all.

OK, time for a rant - Will, this is not directed at you - The thought of an NSA database containing all our phone call records and the program has been going on for 4 or 5 years?! Without anybody knowing about it until now?! It makes me want to chew ballbearings! Now don't tell me that the largest database ever built is going to be put up on a shelf and only taken down and used under very specific circumstances - like only when someone is suspected of aiding and abetting terrorists. That database is in use. I believe it is being updated, tested, queried, and analyzed every day. User interfaces are being built and privileged people are being given accounts and permissions to query the database. As Patriot1957 has already very ably expressed it, the possibilities for abuse are endless. At the very least some subset of Congress should have been aware of it and an oversight process should have been developed. If its possible to develop FISA law to grant secret warrants for wiretaps, why couldn't there have been an oversight process developed for this program? So not only is this administration dodging the FISA law and telling us all that it is perfectly legal, but they are developing a program like this without the knowledge of Congress, the Judiciary, or anybody else as far as I can tell.

Its not like I don't appreciate the need for extraordinary measures in extraordinary times, but its exactly times like these that require the highest level of integrity. Allow me to use the example of Lincoln during the Civil War. He had to take some drastic measures in defense of the Union - notably suspension of habeas corpus - the Constitution gives that right to Congress, but Lincoln carried it out as Commander in Chief. The key is he didn't hide anything. After a reasonable amount of time he submitted his actions before Congress asking for affirmation of his actions. Congress affirmed his actions because the criteria for suspension of habeas corpus was there - invasion or rebellion. Interesting to note a state of war is NOT a criterion. Only a state of invasion or rebellion.

So, is it OK for the President to take extraordinary measures to fight the War on Terror? I believe he should be given plenty of leeway to address the circumstances we face. Does that mean he can go year after year without bringing his administration's actions before Congress for approval - NO!

... and the Patriot Act does not constitute congressional approval of warrantless wiretapping, secret prisons to hold detainees where torture is allowed, writing legal interpretations qualifying torturous practices as something other than torture, and the building of this NSA phone record database.

OK, rant over - I feel better now (only slightly).

Posted by: DK | May 17, 2006 11:48 PM

I've been checking this blog out every couple of days for some time now, but cannot find anything worth biting into. What's up with all the crazy posts? I'll be back!

Posted by: johnnyg in NE DC | May 17, 2006 11:50 PM

it's called an insufficient web programmer trying to ensure that they can track one blogger in particular...

because he's good and their not...


they don't want to be eating cat sh*t out of the cat box tomorrow because their boss told them they had to nail him and nail him good...

but that's what happens when a newspaper is actually a shill for certain insiders...


who shall remain nameless...except we'll simply call them ed and jim here, otherwise they'll remain nameless....cretins....monkey stuffers?

.

Posted by: this isn't Fort Meade... | May 18, 2006 12:13 AM

but you know how it is, I have to get my code cracker tracking and snapping I'll be feeding you some juicy tidbits so you can be the first....


uh.........there's some illegal aliens in the country but they're only part of a larger issue....


if you looked at the 70 Billion dollar tax cut for people who make over $200,000 well


that might give you a clue as to why the country is going to hell in a handbasket?


nice try, I'll be frying you in a week.....


you'll have to do your own work.

.

Posted by: well I was hoping Friendship Heights | May 18, 2006 12:16 AM

in the same genere as Al Capone...

he's a family man, just not your family.

and there's no war, it's an unjust occupation of a country to control the flow of resources.........


that might be more thoughtfully controlled by actually finding a replacement for that fuel....


but that would be too easy, too forward thinking.....

like arresting those congress people in Georgia and New Mexico that actively recruit and employ _illegals_

as cost saving measures for their families...


and I think I would send some people around to investigate Cheyney's friends, anyone that he calls, would certainly warrant close watching....as well as any of the bush clan....pretty shifty group there.....check the entire southwest and southern branch of the government/congress for hiring illegals,


and then charge them with a felony,


do your country a favor, CIA FBI NSA Secret Service I'm counting on you to make the big dawgs pay the cost of destroying your country....make 'em cry


do your patriotic duty,


it's about your citizens, not providing the upper class with a free ride on your backs.

thank you, good luck, and good night...


oh say can you see..........


.

Posted by: george bush is a criminal... | May 18, 2006 12:35 AM


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http://www.waynemadsenreport.com/

May 17, 2006 -- LATE EDITION -- WMR can report tonight on more details concerning the confusing reports regarding Karl Rove and Special Prosecutor Patrick Fitzgerald from last Friday. WMR can confirm that the appearance of Attorney General Alberto Gonzales before the Grand Jury at the US Federal Courthouse in Washington was a formality in which the jury informed the Attorney General of their decision to indict Karl Rove. That proceeding lasted for less than 30 minutes and took place shortly after noon. Gonzales's personal security detachment was present in the courthouse during the Grand Jury briefing. From the courthouse, Gonzales's motorcade proceeded directly down Constitution Avenue to the Department of Justice.

According to sources within the Patton and Boggs law firm, Karl Rove was present at the law firm's building on M Street. WMR was told by a credible source that a Patton and Boggs attorney confirmed that Fitzgerald paid a visit to the law firm to inform Rove attorney Robert Luskin and Rove that an indictment would be returned by the Grand Jury against Rove. Contrary to other reports, some of which may have emanated from the Rove camp in order to create diversions and smokescreens, the meetings at Patton and Boggs did not last 15 hours nor was a 24-hour notice of intent to indict delivered to Rove. In the Scooter Libby case last October, after the Grand Jury decided to indict Libby on Friday, October 21 and the Attorney General personally heard the decision the same day at a meeting with the jury, the actual indictment was issued the following Friday, October 28. Several sources have told WMR that an announcement concerning the indictment of Rove will be made on Friday, May 19 generally following the same scenario from October 28, 2005 -- the posting of the indictment on the Special Prosecutor's web site followed by a press conference at Main Justice.

WMR was also told by a credible source that part of the reason for Fitzgerald's visit to Patton and Boggs was to inform Rove attorney Luskin that he has moved into the category of a "subject" of the special prosecutor's investigation as a result of a conversation with Time reporter Viveca Novak, in which Novak told Luskin that Rove was a source for Time's Matt Cooper. The special prosecutor, who has prosecuted one defense attorney in the Hollinger case, is reportedly investigating whether Luskin, as an officer of the court, may have violated laws on obstruction of justice.

WMR has also discovered that last year Rove, realizing he remained a lightning rod in the CIA Leakgate scandal, made preliminary plans to move into the private sector from the White House to take political heat off the Bush administration. However, as it became clear that he was in over his head legally and his legal bills piled up, Rove decided to remain at the White House.

Posted by: che | May 18, 2006 05:09 AM

DK-

I have read the article closely and noticed the passage you quoted. Still, even if it applies to Washington Post and Times reporters (and none other besides Ross and Esposito are mentioned) you would have to admit that this is a fairly targeted search. There is no mention of DK's phone records. Or of journalists at the Chicago Sun Times. Or of Dallas Morning News. Or of the LAT. Why? Because none of these stories reported on leaks; the New York Times reported the NSA wiretapping program and the WaPo reported on foreign prisons.

"Admittedly Ross and Esposito say they don't know if the surveillance they are under is connected to that effort, but I have a hard time believing at this point that we are talking about investigators getting a few hundred pages of printouts from a phone company mainframe the way they would have back in 1979."

First off, I don't see anything in the above article to suggest what you've proposed. If it is revealed that Ross and Esposito and journalists phone records are the result of NSA non-voluntarily non-warranted phone record searches then I will review my position.

Secondly it seems extremely feasible to me that this is a targeted search precisely the kind of which occurred in Smith V. MD. There is a criminal investigation regarding the leaking of classified information. Investigators could have reasonably concluded that cross referencing government phone numbers with those of journalists who have reported leaks could implicate people in leaks. I'm not a police detective, but that seems like a fairly obvious trail to sniff.

Thirdly, just because Smith V. MD happened in 1979 does not mean that investigators did not request phone records from phone companies since then. It's an extremely useful and practical police tool. I would bet much money that it is used frequently today throughout the country. In murder investigations, rape investigations, and yes, even leak investigations.

And I believe some of the phone companies have already admitted to handing over phone records to authorities, like the NSA. I'd need to double check on that.

Regarding the "good leaks" vs. "bad leaks" scenario: I agree. I also have a presonal opinion on it. It's clear that the unwarranted NSA program is illegal. The question posed by the administration is whether or not the law is constitutional, whether or not breaking the law was lawful to protect lives, or whether or not there was adequate "oversight" to justify bypassing the law. These questions will need to be answered by them, and I eagerly await those responses.

The foreign prisons thing does not immediately appear illegal to me. In fact I don't personally think it was even in the best interests of the public to hear about them. Great story, no doubt, and I love the Post so I read it. But a leak that potentially harmed our relationship with foreign countries (because they were lieing to their constituencies).

But whatever we conclude here about which leaks are good and which leaks are bad is irrelevant. Leaks are illegal just as murders are. But, like leaks, murders can sometimes be justifiable. We can evaluate mitigating factors --did the perps father provoke the attack by molesting the perp-- or justifiable homicide factors --was this a murder of self defense-- or countless other things a JURY determines.

And a jury will ultimately determine which leaks are "good" and which leaks are "bad". But in order to make that determination the people responsible will need to be brought to trial. And I hope that they will determine that the NSA wiretap was lawful whistleblowing, that it was in the best interests of the public to know. And they will vote with their verdict, hopefully a not-guilty.

But I cannot make the determination from my computer desk any better than you can. Leaking is a crime. Sometimes it is justifiable. We won't know if this or that particular instant of leaking was justifiable until a jury (or judge) returns with a verdict.

Posted by: Will | May 18, 2006 10:28 AM

I tried hard yesterday to show will how ludicris his argument was but I couldn't get the stupid thing to post, but here I will try again.

I say: "Will I want your Social Security Number>"

Will Says: "No you can't have it, it's private."

I say: "Will, what's your last name and where do you live?"

Will asks: "Why do you want to know that?"

I say again: "I want your Social Security Number, and according to your argument since you had to give it to the telephone company to get telephone service; therefore you willfully gave it to a third party. So you can't expect them to keep it confidential, therefore I should be able to obtain it by having a friend of mine, who works in a DA's office, ask the phone company for it becaue they need it.

Do you see now what the other people were trying to get at. Just because you give something to a third party, in some instances you do expect a degree of confidentiality.

Posted by: Lab Rat | May 18, 2006 10:31 AM

Lab Rat-

I think you are missing the point...

We do have a "reasonable expectation of privacy" over some things we disclose "voluntarily" to third parties. Medical records are one of them, because they are protected by a particular social contract between the Medical Community and the Patient Community. When I sign into a privacy contract that contract is legally binding on both parties; if the other side broaches it they are at fault.

This is why your example breaks down.

Lab Rat Says: "Will I want your social security number."

Will says: "Here you go. It is xxx-xx-xxxx."

Lab Rat calls the media and says "Will's social security number is xxx-xx-xxxx hah hah! Now you just try and take legal recourse against me, Will!"

And as a matter of fact... I CAN'T! I volunteered that information to you. That's my stupid bad for trusting you with my social security number.

There's nothing special about your social security number. There isn't even anything particularly private about it. There's nothing illegal about someone asking you for your social security number; my girlfriend knows mine. So does my mother. So does my bank.

I would *PREFER* if my bank not hand that information over to criminals --if they did I would switch banks or report them to consumer watchdog agencies, etc. But if they did, and I had not signed a privacy legal contract (which I think I did), then the bank did not do anything illegal. I have no reasonable expecation of privacy over information I voluntarily, and unprotectedly, hand over to third parties.

Now, since social security numbers happen to be functional and extremely specific, if anyone besides me uses it they have actually committed a crime. And if the bank hands over my SSN to a criminal then I could bring suit against them for conspiracy to commit fraud, or some other comparable charge. But 4th amendment privacy rights? Nope.

Let me offer you another example. In Katz V. United States, where the "reasonable expectation" qualifier was established, the United States tapped a public phone booth that Katz was using. He argued that his 4th amendment rights had been violated because the Government had no right to access the CONTENT of his conversation. He argued that he had a constitutionally protected, and reasonably expected, privacy right to the content of that conversation.

And he was absolutely right.

A person can reasonably expect that the government has no right to the content of that conversation. They unlawfully tapped the phone booth without a warrant (I believe thinking that since it was public property they required no warrant).

But here is the kicker... had the police asked the person on the other end of the phone what it was that Katz said, and that person had COMPLIED, then the government would have been perfectly justified in using said information against Katz in court. Why? Because the information was volunteered by Katz to someone... and that person was free to do with said information whatever it is they please.

That's the crux of Smith V. MD. It's not that people have NO reasonable expectation of privacy; it's that if you volunteer information to someone THEY are free to do with that information whatever they please (so long as it isn't criminal). And this includes cooperating with authorities in robbery investigations, or murder investigations, or leak investigations.

Get it?

Posted by: Will | May 18, 2006 10:53 AM

Will,

SSN are protected under the privicy act. It is against the law for any entity to disclose them without signed consent. Yes My wife knows mine also. In fact there was an incident lately where a county in a rush to meet a deadline mistakenly placed peoples ssn's on the internet when they posted their tax bills, because that was how the distinguished the parties. They were sued and were held liable for any damages resulting from the posting of the numbers.

Now medical records are another thing, which I disagree with the judges ruling. In Rush Limbaugh's case they said that anything in his medical records could not be considered private and that procecuters (sp) were able to view his records.

Posted by: Lab Rat | May 18, 2006 11:25 AM

No I don't like the guy, but I think that set a bad precident.

Posted by: Lab Rat | May 18, 2006 11:26 AM

Lab Rat-

Well there you go. There is specific legislation that targets the privacy of Social Security numbers. There is an existing legal contract between social security holders and the people that represent them whereas disclosing said information is, by itself, a crime.

This seems fairly reasonable to me. As I mentioned in my above post, if anyone ever attempts to use my social security card but me, they are already committing a crime. Since one card is issued per person, using the card is representing oneself as one individual. Using someone else's number would necessitate a fraudulent act. I fully support SSN# privacy legislation.

In any event, that would explain the very reasonable difference between social security numbers and numbers you dial on your telephone. We have a "reasonable expectation of privacy" on the former but not the latter.

It appears we are clear on this point.

Posted by: Will | May 18, 2006 11:32 AM

Lab Rat-

Re: Medical records

I could be wrong but, privacy rights over medical records simply means that the police cannot access them without a warrant... at all. If a doctor volunteers that information the police cannot use it against you in court without a warrant.

When you say "judges ruling" it is unclear whether you are referring to a decision to allow volunteered medical records, or if you are referring to a warrant the judge signed over to prosecutors for the medical records.

Medical records are private, but are they absolutely private (IE. never under any circumstances can anyone but the subject view them)? Don't know.

Posted by: Will | May 18, 2006 11:39 AM

Fair enough Will,

You see it as likely being targetted, and I see it as likely being widespread. Only time will tell for sure.

In the mean time, please answer this:

Do you think there is a need to modify or create new law to cover use of phone record databases such as the one the NSA is compiling? If it were challenged in court and the case went to the SCOTUS what role would Smith v MD play in the deliberations and what do you think the outcome would be? Then, what do you think the outcome should be.

Posted by: DK | May 18, 2006 12:49 PM

DK-

"Do you think there is a need to modify or create new law to cover use of phone record databases such as the one the NSA is compiling?"

I'm likely to confuse this but are we talking about NSA warrantless wiretap programs? Because that is considerably different then composing a dialed numbers list. The government already looks at every single envelope that you send and receive... it doesn't look inside the contents of that letter. There's a substantive difference between seeing where a phone call/letter is going and what is actually the content of that phone call/letter.

Whether or not I personally believe a modification is necessary will depend on the facts. I don't know how the NSA is aquiring phone lists. Is it asking politely for them? Is it threatening phone companies with investigation? Is it utilizing warrants?

I'll give as complete an answer as possible if you can specify either a) what methods the NSA is using or b) if you want to create a hypothetical I would be more than happy to speculate on possible modifications that would meet my approval.

Re: the precedent of Smith V. MD:

I think the case extended Katz only in the opposite direction. It accepted "reasonable expectation" of privacy as the litmus test for what constitutes a "search or seizure" <-- which is protected by the 4th amendment. The absolute most Smith could possibly authorize is the Government's right to access dialed numbers records. The case itself involved voluntary participation, though an aggressive judge could argue that such information was public record anyways and thus government knowledge.

I do not think that's how our current court would hold Smith. I also don't think that's how a court would hold Smith. I think the only thing we can take away from it is that, barring some other binding legal contract, information you give to the phone company willingly (everytime you dial a phone number) does not REQUIRE a warrant to use in court. It might NEED one if the phone companies refuse to cooperate. But that's another matter.

I think that's actually an excellent precedent and I wouldn't extend the ruling too far either way. Individuals, groups, organizations, phone companies, etc. are in a far better position to evaluate how "reasonable" a government officials request for information is. And they should have the right to do cooperate with certain types of information. I think dialed numbers happen to be one of those types of things because a) I am compelled by the argument presented in Smith V. MD: phone companies necessarily must keep records of such things in the normal course of business and thus customers have no reasonable expectation that these are private. And b) because such records are so absolutely practical and necessary in solving real crimes. And they can be used, in my opinion, without the general public sacrificing anything of significant value privacy-wise.

This must sound like an amazing dodge of an answer. Really I'd be more capable of addressing what you want addressed if you would specify which modifications you think are in order, what specific complaints you have with Smith V. MD, or how you think this case would even apply to certain programs you discuss (I don't think it would have anything to do with warrantless wiretaps of domestic calls, which would have more to do with Katz; also such wiretaps speak for themselves since they are clearly illegal under FISA laws and thus there is no need to refer to Smith).

Posted by: Will | May 18, 2006 02:34 PM

"Secondly it seems extremely feasible to me that this is a targeted search... There is a criminal investigation regarding the leaking of classified information. Investigators could have reasonably concluded that cross referencing government phone numbers with those of journalists who have reported leaks could implicate people in leaks. I'm not a police detective, but that seems like a fairly obvious trail to sniff."

Will, you are putting the cart before the horse. First, a criminal investigater must identify a suspect, then convince a judge that what you have is enough to look deeper, and then you search your suspect's contacts looking for confirmatory evidence. Thus in this case, the government would have identified a suspected leaker, have found, say Vivica Novak's phone number repeatedly in his phone logs, and follow through to see whether Vivica's notes could confirm that the government agent leaked anything to her (or if they were making a play date for their kids).

What this story accuses the government of doing is exactly the reverse - rifling through the records of reporters at "targeted" media outlets, looking for calls to or from government employees. THEN they would use that information to decide which government employees to investigate as potential leakers. That is not targeted, it is a fishing expedition.

That is, what the government stands accused of in this article is not following the phone calls of a suspected leaker, but rifling through the phone records of everyone in a given workplace trying to find one who might have been involved, somewhere, with some as yet unidentified leaker. This is why there is a fourth amendment.

Now I know you'll tell me that Smith vs MD means the 4th doesn't apply to phone calls - I say that SCOTUS interpreted it in the forward direction, using phone info on well defined suspects. Unless Bush gets to appoint any more judges, I don't believe SCOTUS would interpret Smith vs MD as applying to a reverse (cart before the horse) investigation - using phone records to try to find previously unsuspected criminals. I believe they would consider the 4th amendment applies here.

Posted by: patriot1957 | May 18, 2006 03:44 PM

patriot-

"Will, you are putting the cart before the horse. First, a criminal investigater must identify a suspect, then convince a judge that what you have is enough to look deeper, and then you search your suspect's contacts looking for confirmatory evidence."

No. District Attorneys and police officers aquire large amounts of information regarding a case without so much as thinking about a judge. They do this by asking questions; of victims, of suspects, of witnesses, and yes, even of phone companies.

An investigator does not need to go to a judge to confirm suspicion of a suspect. They can proceed with a criminal investigation by asking relatively benign questions. Only when they run into lawful opposition would they require a warrant.

"Thus in this case, the government would have identified a suspected leaker, have found, say Vivica Novak's phone number repeatedly in his phone logs, and follow through to see whether Vivica's notes could confirm that the government agent leaked anything to her (or if they were making a play date for their kids)."

No, in this case what they *might* have (and likely did do) is recognize that the NYT and WaPo reported on classified information. That must have tipped them off to a leaker. They could then ask the phone companies for the dialed numbers records of journalists. They could ask for any journalists really, just as you or I can call up the phone company right now and ask.

But what they likely did was ask for the dialed records of a few select journalists. And the phone companies may or may not have accomodated them. But nothing done to that point would have required a warrant, nor would a warrant have been required to use the voluntarily conceded records in court. This is what Smith V. MD establishes.

"What this story accuses the government of doing is exactly the reverse - rifling through the records of reporters at "targeted" media outlets, looking for calls to or from government employees. THEN they would use that information to decide which government employees to investigate as potential leakers. That is not targeted, it is a fishing expedition."

I'm not sure if you've actually read the article, but it can be viewed here http://blogs.abcnews.com/theblotter/2006/05/federal_source_.html

The phone records being requested are targeted at identifying which journalists are talking to which government employees. This is extremely targeted. It is not "fishing" since it will likely provide valuable information to prosecutors/investigators.

Let me give you a comparable situation. A woman receives threatening phone calls on her telephone but cannot track where they are coming from. The police generate a list of suspects from a phone registry voluntarily submitted to authorities from her phone company.

You seem to think checking the phone records of journalists to determine which government employees they are talking to is unreasonable. I disagree. If I were investigating a leak case, checking the dialed numbers of the people who reported on the aforementioned leak would be an EXCELLENT way at determining who leaked what. Particularly if I had government phone records to cross reference. I could determine which reporter talked to which government employee.

"That is, what the government stands accused of in this article is not following the phone calls of a suspected leaker, but rifling through the phone records of everyone in a given workplace trying to find one who might have been involved, somewhere, with some as yet unidentified leaker. This is why there is a fourth amendment."

Uhm, no. The article makes no judgement on how the government is aquiring the telphone numbers of journalists. It just reports that the dialed number list of journalists are now in the government's posession. And the article did not say it was "rifling through the records of everyone in a workplace." Reread. It says very clearly: "the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources" and "that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post." It is not clear from either statements that ALL employees of all three newspapers have their phones checked.

The fact that it is only these three mentioned, and not the Chicago Sun Times, the Dallas Morning News, or the LAT for instance, is telling. It suggests a level of preciseness that one would assume exists in any criminal investigation.

Here's what I think you've got wrong. You assume that the government needs "suspects" before it can do any police work. This is simply not the case. Countless police work is done prior to there being a suspect. Investigators must go to great lengths to determine suspects. If we waited for suspects to identify themselves before criminal investigations began then it is unclear what crimes would ever be solved.

"I say that SCOTUS interpreted it in the forward direction, using phone info on well defined suspects."

That is not what Smith V. MD said at all. They made VERY CLEAR in their opinion what they were referring to, namely, that no person (CRIMINAL SUSPECT OR OTHERWISE) could ever possibly have a reasonable expectation of privacy over their phone records. There is no qualification for it being a person under investigation or suspicion.

"I don't believe SCOTUS would interpret Smith vs MD as applying to a reverse (cart before the horse) investigation - using phone records to try to find previously unsuspected criminals."

Smith v MD doesn't even apply to "investigations". It applies to what constitutes a "reasonable search and seizure". It makes a very sweeping claim that, guess what, every phone number every person ever dialed that was not protected by other legal contracts could not POSSIBLY carry with it a reasonable expectation of privacy. The case makes no qualification for whether or not an investigation is in progress.

"I believe they would consider the 4th amendment applies here."

I do not think you understand Smith V MD or its application. I think you are trying to fit a square Smith V MD peg into a circle I-Like-This-Particular-Leak-Therefore-This-Investigation-Is-Bad hole.

The NSA can constitutionally ask every phone company in the United States for the phone records of every person in the United States. And IF the phone companies comply than, consistent with supreme court precedent, that information can be used by them however they want (as long as it isn't criminal).

The article makes no specific claim about whether or not journalistic phone records were aquired by polite inquiry or by warrantless seizures. Speculating the latter is just that.

Posted by: Will | May 18, 2006 04:20 PM

patriot-

"Thus in this case, the government would have identified a suspected leaker..."

How do you think prosecutors or investigators "identify a suspected leaker" exactly?

Posted by: Will | May 18, 2006 04:30 PM

Here is what I read:
"Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation."

It said "reporters for ABC news", etc. It didn't say only those reporters who wrote a leak story. So, I guess there is room for interpretation here. I interpreted it as a dragnet over everyone in at least 3 media outlets (and I'm sure there are more). Maybe you interpreted it as only reporters already KNOWN to have received leaked info?

If it is only happening to those reporters whose name appeared in a leak story byline, then either :
a. They suspect a certain agent and want to know if that particular gov't agents number is in the reporter's phone log - which doesn't make sense since they should have been able to see which numbers their suspect dialed, or
b. They are doing a cart before the horse investigation trolling through phone records of people not guilty of any federal crime or even charged with any crime to decide if they can find anyone in the government they should be suspicious of. This has more than a doubleplusungood feel to to it.

Choice b is akin to the government trolling through the phone records of any enemy any time it pleases to try to find something, anything, it can get them on. I simply do not believe this is what SCOTUS intended to put its stamp of approval on.

Let's say, Will, the government wants to get YOU! Your boss and two coworkers were just charged with being involved in an embezzling ring, so they feel free to look at everyone in the firm since surely they didn't get everyone. ANd anyway they don't really like people who think for themselves instad of swallowing party line.

So they troll through your phone record and find some calls that happen frequently but aren't to family or work. So they drop in on the people where the calls came from and ask about you - "Will, they say, oh he just does my taxes for me. " or "He understands finance so he helps invest my money for me". Govt asks "do you pay him?" They answer yes, $200 or whatever. So they pull Will's income tax and sure enough, no self employment income reported.

Slam slam goes the prison door on Will's income tax evasion charges. They gotcha, didn't they. ANd according to you, Smith vs MD made it all legal.

I find it incredulous that SCOTUS would rule that SMith vs Md would apply to a cart before the horse fishing expedtion as an acceptable use of phone records where the 4th amendment need not apply.

Posted by: patriot1957 | May 18, 2006 05:42 PM

patriot-

I think your concerns are well founded. Here is what I would like to point out:

"They are doing a cart before the horse investigation trolling through phone records of people not guilty of any federal crime or even charged with any crime to decide if they can find anyone in the government they should be suspicious of. This has more than a doubleplusungood feel to to it."

There is nothing illegal about going to the phone company and asking for these records. Whether it is "doubleplusungood" or not is immaterial. The Government can ask for the records. If they are "trolling" merely by asking and receiving, then that is protected by Smith. That is ALL I'm saying.

"Choice b is akin to the government trolling through the phone records of any enemy any time it pleases to try to find something, anything, it can get them on. I simply do not believe this is what SCOTUS intended to put its stamp of approval on."

Because SCOTUS wasn't concerned with this. What they were concerned with is voluntary information being denied court even in cases where such information was voluntarily given to prosecutors. Denial of such information as evidence would be catastrophic to all police investigations.

Presumably the ability of any law enforcement to secure phone records will require a whole lot more than "asking politely and receiving." A phone company might reasonbly say "Why should we give you these records?" And the impetus is on law enforcement --the NSA, the FBI, the Lubbock, Texas District Attorney's Office-- to prove necessity to the phone company. Failing in that, to prove necessity to a judge.

"So they troll through your phone record and find some calls that happen frequently but aren't to family or work. So they drop in on the people where the calls came from and ask about you - "Will, they say, oh he just does my taxes for me. " or "He understands finance so he helps invest my money for me". Govt asks "do you pay him?" They answer yes, $200 or whatever. So they pull Will's income tax and sure enough, no self employment income reported."

First off, I hope my phone company does not hand this information over. If law enforcement lies to the phone companies to get this information they have already committed a crime. This fact will be brought to a judge's attention.

Second, if I committed a crime I committed a crime. Police inadvertently stumble across related (or unrelated) crimes in the course of investigations all the time. In this case they actively sought to smear me. But a crime was committed, nonetheless.

"Slam slam goes the prison door on Will's income tax evasion charges. They gotcha, didn't they."

Slam slam goes the prison door on my $200 tax evasion case? Ok patriot...

"I find it incredulous that SCOTUS would rule that SMith vs Md would apply to a cart before the horse fishing expedtion as an acceptable use of phone records where the 4th amendment need not apply."

You keep using this strange analogy of a cart before the horse. There is no cart before the horse. Smith V MD applies to an investigation. It happened to target a suspect because convicted people are precisely the types of persons who would challenge evidence in court, appelate court, and Supreme Court.

Smith V MD does not apply to "fishing expeditions" it applies to whether a person can reasonably expect privacy over a certain type of evidence. According to the Supreme Court they cannot expect it of their phone records.

Posted by: Will | May 18, 2006 06:03 PM

I just made the biggest errors ever. I said: "Smith V MD applies to an investigation." where I meant to say that Smith V MD applies to a certain category of information that could reasonably be expected to be private. Smith V MD happens in the CIRCUMSTANCE of a criminal investigation, but the conclusion is not limited to those circumstances.

Sorry

Posted by: Will | May 18, 2006 06:11 PM

"Smith V MD happens in the CIRCUMSTANCE of a criminal investigation, but the conclusion is not limited to those circumstances."

I guess we'll just have to wait until a case based on this hits the Supremes to see how general that conclusion will be judged to be. Because I believe that if the context of the Smith vs Md case had been Richard Nixon fishing desperately to try to find something, anything, to intimidate his political enemies, their decision would have been a little different regarding what circumstances afforded the government reasonable cause to fish through your phone records.

Posted by: patriot 1957 | May 18, 2006 08:44 PM

Will - you wrote

"I'm likely to confuse this but are we talking about NSA warrantless wiretap programs? Because that is considerably different then composing a dialed numbers list. The government already looks at every single envelope that you send and receive... it doesn't look inside the contents of that letter. There's a substantive difference between seeing where a phone call/letter is going and what is actually the content of that phone call/letter."

In that instance I was talking about the phone call database. I realize there is a substantive difference and I understand the distinction between the two programs.

I'll give as complete an answer as possible if you can specify either a) what methods the NSA is using or b) if you want to create a hypothetical I would be more than happy to speculate on possible modifications that would meet my approval.

Its interesting you bring up the methods of gaining the records because when USA Today first broke the story it sounded as though most of the phone companies just handed the records over without demanding that the phone companies get a warrant. Now it seems the phone companies never handed those records over and were unaware that the records were ever requested by the NSA. That means that 1) either the whole program is bogus - perhaps just a plan, a proposal, or a rumor (not likely since NSA isn't denying it), 2) the phone companies are now lying as a form of damage control so they don't lose so many customers (most likely scenario), or 3) the NSA has people on the inside of these phone companies that are feeding the information to NSA unbeknownst to phone company executives, or 4) they are using equipment that can glean that information from signals going the phone wires or switches (a possibility that would truly raise the bar on the unwarranted wiretapping issue since that same equipment would most likely be able to record the rest of the analog and digital data going through those same wires and switches - I doubt they'd be doing that without letting Congress know).

Something sure is fishy because I can't see how this could be just a one time turnover of data. No database of that scope is built without a maintenance plan. If this were a database built from a one time turnover of data by the phone companies to the NSA back in 2002, It would be obsolete now. Databases of that nature need to be kept very current to be effective investigation tools. So how is NSA keeping this massive database current? Are the phone companies cooperating to that level? I'd like answers to a lot of those questions, but somehow I doubt I'll ever get answers.

Anyway, I digress. I do want to provide some hypotheticals to you:

Let us hypothetically say that every reporter at ABCNews, Washington Post, the New York Times, and USA Today was having their phone records monitored over a two year period with no warrants obtained (I have no idea how many that would be - Let me guess 5000). The investigators are being told by their bosses that the purpose of the record monitoring is to catch leakers. The records are collected in whatever way they are collected - lets say the phone companies are cooperating and the investigators bring their laptops on a weekly basis, plug into the phone company network and download an extract from the phone company customer billing database that has been prepared by phone company IT staff according to specifications provided by the investigators (what customer records, the fields from the customer billing database, the file format,etc.)Please note: I say the customer billing database because that is where I assume the phone numbers-dialed data would be kept , along with length of call, time of call, and all other factors affecting customer billing.

I'll stop here for a moment - from your previous posts my understanding is that you would consider this practice legal and an acceptable investigative method and you base that on the Smith v. MD precedent. (Am I interpreting you correctly or not?)

Now to continue: The investigators bring the files back every week and download them into a database where queries can be constructed that perform pattern analysis of numbers dialed. For user-friendliness views are created that substitute customer name (coming from the customer billing records) in a report rather than the raw numbers being analyzed by the computer. It may be that many of the dialed numbers are to people that are customers of different phone companies. Therefore it would be helpful if the investigators had access to phone records of other phone companies as well. That way the dialed numbers could be matched up with names as well, rather than just numbers and cities which is all I ever see on my phone bill for the dialed numbers. OK, so what about incoming calls. Are incoming calls tracked in a database by a phone company? I certainly don't see incoming calls on my phone bill. A lot of those would also be other phone company customers. If the phone company tracks the numbers then the investigators could get that data when they are making their weekly visits,but if not and if investigators want to monitor the incoming phone call records, it means needing an even wider swath of the full universe of all phone records owned by all phone companies. The alternative would be putting equipment on the lines to monitor and record signals related to numbers and length of calls, but in order to stay within the bounds of the program that equipment would not be used to record conversations or intercept data or e-mail.

I'll stop here again 1) with method #1 referring to other current sets of phone company records to determine identities behind the numbers of dialed and incoming calls, my guess is that you still claim its legal without a warrant, citing Smith v. MD 2) with method #2, monitoring dialed and incoming numbers through equipment on wires or switches conversation/data/e-mail intercepting turned off - with phone company permission and no warrant - is that legal? How about 3) the exact same scenario as #2 except phone company is unaware of the monitoring equipment for dialed and incoming calls?

All right the last place I'll take it is that once the data is in the database, the investigators have opportunities to run various types of analysis. In order to establish other connections between potential collaborative teams of leakers and reporters the investigators decide that it would be helpful to see if any of these individuals had any previous or currently have other types of contact. In that case it is handy to have membership roll databases such as NRA, Sierra Club, ACLU, Public Citizen, Republican Party, Moveon.org, Swiftboat Veterans for Truth, College Alumni Associations (remember this is all hypothetical) Lets say these rolls are all obtained in various ways, voluntarily given, some picked up from conferences, or given to members who then turn them over to the investigators. There is one piece of data that just about any membership roll contains about all members - a phone number. Since a phone number can serve as a fairly unique identifier for most households, and since its numeric format is conducive to matching records from one database to records from another, it is generally a simple matter to link the membership rolls to the phone company records and add more attributes that can be used to compose queries and establish patterns. Still no warrants involved.

How are we doing Will? Are we still legal?

Now since its always good to know as much about your subject as possible and the investigators have these handy relational database tools that allow investigators to link all sorts of databases together using a phone number as a key field, why not start linking to credit history databases, military records, police reports, prison records, court records, store sales and marketing databases, etc., etc. Lets say these investigators have incredible contacts, especially within the federal government and they have access to police and court records because the FBI has them, military records because the investigator's organization does favors for the military and gets favors in return, Credit history because they pay for access, store sales data because they've worked out agreements similar to those they've worked out with the phone companies. In short they've never had to force or intimidate anyone into giving them data, they are just very powerful, have many contacts and lots of money and they know how to get what they want. They have all these things without ever getting a warrant to get them. They are now linking all these disparate databases to the 5000 reporters and all those being called by the 5000 reporters and all those calling those reporters - no warrants and no oversight of these actions. Is this still legal?

Now lets say that there are 10 investigators on this case. 9 of them are straight laced and follow all the internal rules of confidentiality, but one has a few friends with political connections that like to get favors in return for favors ( seeing to it that a zoning varience is granted, seeing to it a liquor license is issued, giving jobs to specified individuals.) The kind of favor they like in return is information on people in their state or district that could identify them as "enemies" or discredit known "enemies". I don't even need to ask - I'm sure you see this as illegal.

So, how far fetched is my hypothetical scenario?

My take is - I really don't know how far-fetched it is. It is certainly within the realm of possibility.

It is my contention that we don't have laws adequate to deal with these types of possibilities.

First I have trouble with your oft repeated example of if I choose to tell someone my social security number I can't expect any right to privacy and likewise if I volunteer my phone number by dialing that I can't expect privacy related to that either. I believe there is a differnt standard there. If I want to make a phone call I have to dial the number. Its not as though phones are a seldom used oddity. Furthermore, even if I change phone companies, I still have to dial another number that is recorded by another company so they can bill me.

I believe phone companies and other utilities should be viewed as data stewards of customer data. they should be required not to give out billing data without specific owner permission or warrant, or a waiver that could be endorsed by the utility and agreed to by a judge.

Another possibility is to require manditory notification to individuals when their credit history, phone records, and other records are being viewed by others.

Tell me what you think.

Posted by: DK | May 19, 2006 01:33 AM

key question seems - when is civil disobedience justified - that different from when it is justified to invade and kill your enemy - the CIA persons who have leaked have probably broken laws ... but they can at least argue it serves a higher good ... when Mr Bush ignores constitutional restraints and the checks/balances built into our 3 branch federal government ... when his - through signing statements - eviserates a law he signed for appearances - he encroaches on legilative and judical domains - and there is no obvious higher good resulting from his actions ....

people seem to judge a decision process as fair if they like the outcome - but MrBush's incurious approach to making tough decisions is surely a produral flaw that assures underwhelming outcomes.

We gotta pull out of Iraq, leave no base behind. We need to send some of those troops to chase down the "dead or alive" Osama bin laden ... if it works out i'd be pleasantly surprised ... but state and federal republicans - Mr Bush and Mr Cheney spend so much time spinning the outcomes there, they don't have time to think of how to make these nation building projects become widespread successes

aint' going to succeed if our troops are stuck int midde of the sectarian Iraq war

time to bring the troops home ...

Posted by: Mill_of_Mn | May 19, 2006 02:47 AM

patriot-

"I guess we'll just have to wait until a case based on this hits the Supremes to see how general that conclusion will be judged to be. Because I believe that if the context of the Smith vs Md case had been Richard Nixon fishing desperately to try to find something, anything, to intimidate his political enemies, their decision would have been a little different regarding what circumstances afforded the government reasonable cause to fish through your phone records."

As a matter of fact, Smith V MD happened in 1979 which was after the Nixon fiasco.

In any event if a case comes before the Supreme Court that involves "fishing through phone records" without the voluntary consent of the phone companies then Smith V MD probably wouldn't even apply. It established merely a relationship between any particular individual and their dialed numbers list.

Do you at least agree that there is a taxonomy of things that people do not have privacy rights to? For instance... things I shout in town square? Things I tell to my mother that she repeats?

All Smith V MD did was establish that evidence accumulated voluntarily, that was voluntarily submitted by any particular person, could be used without warrant. If the phone company had tapped Smith's phone then he would have had a legitimate case because phone companies do not *need* to tape phone conversations during the normal course of business. They are required, for billing purposes but also to practically connect one phone number with another, to record dialed numbers list. Society, according to the Supreme Court in 1979, is not willing to accept customer negligence of this fact as a "reasonable" expectation of privacy.

So a certain kind of evidence, dialed numbers records, is comparable to voluntary testimony.

What's countintuitive about your position is that this debate occurs in the context of a leak --or in your likely opinion whistleblowing. But what do you think whistleblowing is, exactly? Well, it's an instance of a citizen volunteering information that was given to them to relevant authorities. In many ways this testimony is more restrictive then dialed numbers records, because employees of corporations of the Government are typically forced to sign gag orders. But it is similar to a phone company cooperating with authorities in an ongoing investigation; a concerned group (phone company) is informed of a crime and a means by which they can aid in apprehension and conviction of guilty parties. They comply by volunteering information that they have lawfully and unintrusively obtained.

The more restrictive the standards for voluntary cooperation with authorities you establish the less likely it is that whistleblowers will be willing or even capable of exposing illegal activities in their organizations.

Posted by: Will | May 19, 2006 10:34 AM

DK, anyone can use a phone or internet reverse directory and find the address belonging to any published number. If you call 911 and hang up, a police car will appear at your door in short order (or long order if you live in an underfunded metropolis). So, when the feds compile a list of your calls, they also know exactly the name and address of those phones.

My problem with Will's arguement- that SMith vs Md is carved in stone and universally applicable forever and ever Amen - is that we were all so much more information naive in 1979. Basic 911 (without the "caller ID" feature) wasn't even completed in the progressive state of California until 1985, much less the concept of enhanced 911 (with the caller ID feature) The thought that our phone records would be linked in computerized databases with SSN, address, credit card numbers, etc, and available to almost anyone with even basic computer skill, from their homes, with a few keystrokes was not even on the public radar in 1979.

I agree with you completely that privacy issues in communication haven't kept up with technology. But most of all I believe that in Smith vs MD the Supreme Court wasn't giving a stamp of approval to allowing the government to fish for unknown crimes by reviewing the records of citizens who didn't commit the crime.

That is, if the government convicts a bookie, it is not unreasonable that they go through his little black book to find his customers. However the number alone is circumstantial - maybe the two guys were collaborating on a project for the local Kiwanis club - but it is not unreasonable that they could use that info to get a warrant to tap the guys phone to hear if he's placing bets.

But its a different thing entirely for law enforcement to gather phone records of citizens with no prior reason for suspicion to do pattern analysis looking for patterns that might indicate calls to a bookie, and then using that information to get a warrant.

So is Rove gonna be indicted today?

Posted by: patriot 1957 | May 19, 2006 10:54 AM

Will, the concept of being able to protect your phone number didn't exist in 1979 outside of an unlisted number. Only strange paranoids had unlisted numbers when I was a kid - telemarketing hadn't hit the big time yet. People still had party lines, for heaven's sake.

Today if you have an unlisted number and use blocker on caller ID, and only give your number out to people who have a legitimate need to call you, do you have any more right to privacy?

Posted by: pig in a poke | May 19, 2006 11:01 AM

DK-

"Something sure is fishy because I can't see how this could be just a one time turnover of data. No database of that scope is built without a maintenance plan. If this were a database built from a one time turnover of data by the phone companies to the NSA back in 2002, It would be obsolete now. Databases of that nature need to be kept very current to be effective investigation tools. So how is NSA keeping this massive database current? Are the phone companies cooperating to that level? I'd like answers to a lot of those questions, but somehow I doubt I'll ever get answers."

Let's get this out in the open. The only mention of the NSA in the ABC article is the author's (obsfucating) remarks that "ABC NEWS DOES NOT KNOW... whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls." (emphasis added)

The article makes specific mention of the FBI and the CIA. But none of you have focused on this. Instead this thread has been all about an NSA spying program that is mentioned tangentially in the original article. And the only mention of it acknowledges that they have no idea whether or not their phone records are at ALL related to the NSA program recently revealed.

But we do know there is a current investigation over the leaks. And we do know that it is quite strange that phone companies would deny handing information voluntarily to the NSA... if these records were obtained by the NSA.

So what's the obvious conclusion? The phone companies did hand over the dialed numbers list, but not to the NSA. They handed them over to the FBI during the course of a normal investigation into government leaks, which happens to be a crime.

All this smoke and mirrors from you guys about the NSA could just as easily turn out to be completely unrelated. I blame the article's tone for unnecessarily mentioning that the NSA program was related at all. By merely saying "NSA NSA NSA!" in the article, even when they subtext that with "We have no idea whether the NSA was involved or not" they inadvertently (or maybe on purpose?) implied a conclusion even they weren't willing to espouse.

My original point in this entire debate was that the phone records of innocent people or suspects were collected through the voluntary cooperation of individuals/organizations and law enforcement everyday. Journalists are not privaledged because they are journalists; they are as subject to the law as janitors, truck drivers, teachers, and security guards.

Until there's evidence that the NSA machinations had anything to do with their dialed lists being revealed, I'm going to assume in good faith that their records were handed over by phone companise voluntarily to law enforcement in the normal course of a criminal investigation.

"I'll stop here for a moment - from your previous posts my understanding is that you would consider this practice legal and an acceptable investigative method and you base that on the Smith v. MD precedent. (Am I interpreting you correctly or not?)"

This is correct but I want to make a quick point. This would be a level of cooperation between law enforcement and phone companies that goes well beyond "reasonable cooperation" and borders on "complicity". I do not think our phone companies have a vested interest in spying on us for the government because if such practices came to light they would lose virtually all of their business. If the government asked my phone company for the records of all USA Today, WaPo, and Times journalists, I would like to think they would say "What gives?"

In the event the phone companies say what gives, then the investigators will likely find out just how convincing their "case" is... because a judge will be required to sign off on it.

"That way the dialed numbers could be matched up with names as well, rather than just numbers and cities which is all I ever see on my phone bill for the dialed numbers. OK, so what about incoming calls. Are incoming calls tracked in a database by a phone company? I certainly don't see incoming calls on my phone bill."

Hold the phone. Smith V MD merely applied to phones dialed out from a particular place. The reason the court ruled against Smith was because dialed numbers are records "in the normal course of business." If incoming phone calls are not recorded "in the normal course of business" then it wouldn't apply to Smith. If the names of businesses and people are not applied "in the normal course of business" then Smith might not apply. Not that it would matter, because a little decent police work could easily find out who is on the other end of that phone call... by calling them and saying "Who am I speaking with?"

If you don't see incoming phone calls on your bill (I may or may not, I don't remember) then maybe they are not the kinds of things that are recorded in the normal course of business. If not, Smith wouldn't apply. As a matter of semantics, Smith V MD is concerned only with dialed numbers. "The telephone company, at police request, installed at its central offices a pen register to record the numbers dialed from the telephone at petitioner's home."

"2) with method #2, monitoring dialed and incoming numbers through equipment on wires or switches conversation/data/e-mail intercepting turned off - with phone company permission and no warrant - is that legal?"

I don't think this would be legal under Smith, but I'm not a legal scholar. The reaosn the pen registry was legal is because a pen registry happened to be the kind of thing phone companies already used in the normal course of business. If the phone company isn't in the practice of monitoring data transmittals (for billing purposes or what have you) then it's unlikely they could allow the government to do so, even voluntarily. Remember Katz, the government had no right to access the data of a phone call with "permission" on their own property.

The pen registry was deemed a legal voluntarily cooperation because customers know about pen registries... everytime they call those phone numbers can likely be expected to be recorded.

"3) the exact same scenario as #2 except phone company is unaware of the monitoring equipment for dialed and incoming calls?"

I'm definitely not going to marry myself to this.

The reason customers have no "reasonable expectation of privacy" over the dialed numbesr list in Smith is because the entity that handed over that information, Phone Company Whatever, was voluntarily given that information by the customer. The case involves information passed from customer, to the third party, to government in that order. If the government bypasses the third party then they are violating both the customer's trust and the phone companies trust. It would be identical to the phone company tapping your phone line without a warrant; though either person on either end of the phone would be entitled to hand over the contents of that phone call to authorities, authorities have no right to intercept that without permission from either party.

Think of Smith as protecting the right of phone companies to report unlawful behavior to authorities. When authorities take that information clandestinely they bypass the third party and thus make Smith completely inapplicable.

"How are we doing Will? Are we still legal?"

Assuming we are going with the full voluntary cooperation between phone companies and investigators then yes. I haven't conceded the incoming calls yet, so it would require getting the dialed numbers list from more than one phone company. I also haven't conceded the "identifying household/business of phone numbers" since it isn't clear that such information is recorded in the normal course of business. I have conceded that such information is easily ascertained from a simple phone call after one has established the phone number.

So, if the government goes to the major phone companies and says "we need ALL your phone records to pursue a criminal investigation" and your unrealistically naive, insane, self destructive phone company says "Yokey dokey Mr. Suit." Then yea, I don't see anything contrary to Smith. I don't think phone companies are either willing (why would they jeapordize all their business?) or capable (wouldn't this surveillance implementation place an unwanted financial burden on phone companies?) of doing so. To me the hypothetical is a scare tactic that describes a scenario I don't find the least bit plausible. It leads to a conclusion that any reasonable person would find unacceptable... but so what? If it's an absurd hypothetical (my opinion) then the consequences of it are, well, inconsequential.

"...why not start linking to credit history databases, military records, police reports, prison records, court records, store sales and marketing databases, etc., etc."

Credit history databases would require complicity by the banks. And there might be a "reasonable expectation of privacy" over banking records that doesn't exist for dialed numbers lists. And there might be a legal contract binding the customer with the banks that enforces non-disclosure (meaning a warrant would be required).

Military records would be available so long as law enforcement and the military cooperate with one another.

Police reports would be in-house, so there isn't anything the least bit troubling about that. The government can check my police background right now if they wanted, and it wouldn't bother me. So does your employer, everytime you apply for a job.

Prison records- see above.

Court records- see above.

Sales, marketing, etc.- See credit history. Requires increasing complicity. If so many people are voluntarily cooperating with authorities, you have to assume that they are complicit. Customers should respond accordingly.

"So, how far fetched is my hypothetical scenario?"

In my opinion? Extremely. To the point where the concerns it raises are a total non-issue to me. It would be like asking me to endorse building a dome over the globe to protect against a falling sky.

"It is my contention that we don't have laws adequate to deal with these types of possibilities."

Then legislate. But do so reasonably. Keep in mind each and every time you make prosecution more difficult for the Bush Administration it will have an effect on District Attorney offices and police departments throughout the United States. And many of these people do not support Bush, are not complicit in some grand government conspiracy.

Your scenario assumes bad faith on the part of phone companies. I don't think phone companies are necessarily partisan; they work for a profit. They have their customer's best intentions in mind because if they violate this trust in eggregious ways the customers will simply take their business elsewhere.

Even if I assume bad faith on the part of Bush, the NSA, and the entire Federal Government (which is ludicrous really, because Bush does not have a mind link with the millions of government employees --many of whom did not vote for him), then I see no reason to do the same for phone companies.

And if you are willing to assume bad faith on the phone companies, credit companies, the entire federal government, etc. then there is no "legislative" solution. Because you've essentially created a scenario where the entire United States is out to get you, in which case Democracy rules.

"First I have trouble with your oft repeated example of if I choose to tell someone my social security number..."

I've already withdrawn it. It was a bad example because Lab Rat pointed out that we've already legislated privacy over those numbers. I find this totally reasonable since it is impossible for someone other than me to use my SSN# without committing a crime (fraud). Privacy over them is important.

"I believe phone companies and other utilities should be viewed as data stewards of customer data. they should be required not to give out billing data without specific owner permission or warrant, or a waiver that could be endorsed by the utility and agreed to by a judge."

I completely disagree. For one I see disastrous consequences on the horizon; will prosecutors require a warrant to ask soemone a question? If third party volunteered information from phone companies is outlawed, what about third party volunteered information from people who were actually party to the conversation?

Second there is a different standard for a warrant and voluntary cooperation. The former requires suspicion or something comparable. The latter is REQUIRED in order to ascertain suspects. Police departments absolutely depend on the voluntary cooperation between them and victims, suspects, criminals, co conspirators, unrelated third parties, witnesses, companies, corporations, etc. Without this cooperation even the most mundane police work is utterly hamstrung.

There is no reason to think that phone companies are somehow morally hollow entities. They care about solving crimes. If a person has been murdered, and they have unintrusive evidence that could secure a conviction, they have as much right to "whistleblow" or cooperate with authorities as any particular individual is (unless some legal contract otherwise binds them to silence).

I see where you are coming from, but the consequences do not warrant it, in my opinion. Cooperation between investigators and the general public is absolutely necessary. I am unwilling to compromise that relationship just because one dumpy President overreached. I have a Supreme Court case to support my position and will stand by it.

On this I guess we will just have to agree to disagree.

"Another possibility is to require manditory notification to individuals when their credit history, phone records, and other records are being viewed by others."

Mixed thoughts. The consumer part of me screams yes to this proposal. Obviously I want a phone company to reasonably evaluate an investigators claims when they say Person X is guity of Y. Person X should be entitled to defend themselves to the phone company.

On the other hand if you inform a rape suspect that their phone records are being spied upon they are less likely to use their phone to threaten the victim.

It's a tradeoff that I don't know how I feel about yet. I would prefer a solution that would make the federal government accountable without otherwise compromising grassroot police work in apprehending real criminals. I think voting is such a solution.

Posted by: Will | May 19, 2006 11:31 AM

patriot-

"But most of all I believe that in Smith vs MD the Supreme Court wasn't giving a stamp of approval to allowing the government to fish for unknown crimes by reviewing the records of citizens who didn't commit the crime."

I'm not sure what you mean by "fishing" here. Does it mean using records voluntarily submitted to the government?

"But its a different thing entirely for law enforcement to gather phone records of citizens with no prior reason for suspicion to do pattern analysis looking for patterns that might indicate calls to a bookie, and then using that information to get a warrant."

Do you think your phone company would hand over your dialed numbers records if the government said "Hello. This person is not involved with a crime, we have no evidence that they are related to a crime. In fact we have no evidence that their dialed records will help us solve a crime. But we'd like those records anyways, mmkay thanks."? If you think your phone company would hand it over then you should switch carriers. If you think any particular phone company would hand it over than there's a conspiracy against you that spans the globe.

Posted by: Will | May 19, 2006 11:37 AM

pig in a poke-

"Today if you have an unlisted number and use blocker on caller ID, and only give your number out to people who have a legitimate need to call you, do you have any more right to privacy?"

Certainly. The "reasonable expectation of privacy" can change. In my opinion it has changed... to support Smith V MD. My phone bill has every single phone number I dial listed on it. I am operating under the assumption that the phone company has this list and, if they witness me committing a crime or doing something nefarious in the course of merely "dialing numbers" that they can hand such information over to authorities.

But Smith V MD hinged on what phone companies do in the "normal course of business". If tomorrow phone companies developed a billing system that never involved recording dialed numbers (which seems impossible because they have to connect one phone with another, by hypothetically speaking...) then Smith V MD wouldn't apply anymore.

But just as importantly, Smith V MD can apply to technology circumstances that didn't exist in 1979. It established that actions occuring during the "normal course of business" were ones customers could not reasonably expect to remain private in certain circumstances. It's not unthinkable that such a standard could come up in court again.

My opinion.

Posted by: Will | May 19, 2006 11:42 AM

At the risk of side tracking the debate (a little) has anyone noticed that many of the justifications for data mining/call tracking are because it protects us from "Al Qaida" terrorists? I thought it was my imagination at first, but careful reading shows several recent statements from on high have specifically mentioned AQ and not any nut job bent on killing as many people as possible.

Is this just more fear mongering from the Admin? ("OoOooh! Beware the heathen bad guy!") An attempt at pre-emptive fanny covering before the next disaster? ("Whaddaya want? We said we'd protect you from Al Qaida, we never mentioned Joe Smith and his manure-mobile.") Or is it perhaps another sign that various NSA/CIA programs that involve monitoring electronic communications aren't as narrowly focused as officials would have us believe?

Several people have already pointed out that when forced, the Admin. keeps changing its position on what exactly they are doing. Only international communications to and from suspected bad guys. Well, only domestic calls from people who might call suspected bad guys (or their friends or their friends' friends...). OK, we're also looking for "patterns." And sometimes we try to snoop out people who tell on us when we're naughty...

For the record, if I knew for certain that the NSA/CIA/FBI/[Insert initials of intelligence gathering agency here] was trying to listen to every call made in the US I would be MORE amused than disgusted. First of all, it can't be done. Second of all, I would know a bunch of guys were getting headaches from all the "Hello? I can't hear- I'm on the train! Hello?!" calls that I regularly hear on the Metro.

Posted by: A question | May 19, 2006 11:54 AM

"For the record, if I knew for certain that the NSA/CIA/FBI/[Insert initials of intelligence gathering agency here] was trying to listen to every call made in the US I would be MORE amused than disgusted. First of all, it can't be done. Second of all, I would know a bunch of guys were getting headaches from all the "Hello? I can't hear- I'm on the train! Hello?!" calls that I regularly hear on the Metro."

Better read about Echelon

Posted by: patriot 1957 | May 19, 2006 12:56 PM

"The extraordinary ability of ECHELON to intercept most of the communications traffic in the world is breathtaking in its scope. And yet the power of ECHELON resides in its ability to decrypt, filter, examine and codify these messages into selective categories for further analysis by intelligence agents from the various UKUSA agencies. As the electronic signals are brought into the station, they are fed through the massive computer systems, such as Menwith Hill's SILKWORTH, where voice recognition, optical character recognition (OCR) and data information engines get to work on the messages.

These programs and computers transcend state-of-the-art; in many cases, they are well into the future. MAGISTRAND is part of the Menwith Hill SILKWORTH super-computer system that drives the powerful keyword search programs. One tool used to sort through the text of messages, PATHFINDER (manufactured by the UK company, Memex), sifts through large databases of text-based documents and messages looking for keywords and phrases based on complex algorithmic criteria. Voice recognition programs convert conversations into text messages for further analysis. One highly advanced system, VOICECAST, can target an individual's voice pattern, so that every call that person makes is transcribed for future analysis.

Processing millions of messages every hour, the ECHELON systems churn away 24 hours a day, 7 days a week, looking for targeted keyword series, phone and fax numbers, and specified voiceprints. It is important to note that very few messages and phone calls are actually transcribed and recorded by the system. The vast majority are filtered out after they are read or listened to by the system. Only those messages that produce keyword "hits" are tagged for future analysis. Again, it is not just the ability to collect the electronic signals that gives ECHELON its power; it is the tools and technology that are able to whittle down the messages to only those that are important to the intelligence agencies. "

Here's the link it came from:
http://home.hiwaay.net/~pspoole/echelon.html

If you don't believe this administration has turned Echelon inward you're hopelessly naive.

Posted by: pig in a poke | May 19, 2006 01:38 PM

In the Bush administration Bob Barr and (of all people) Porter Goss demanded Congressional oversight of Echelon. Barr demanded: "If this report reveals that information about American citizens is being collected without legal authorization, the intelligence community will have some serious explaining to do," Barr said."

My how the tables have turned. Apparently we desperately need a Democratic President in order to get Congress to exhibit an iota of interest in oversight.

Posted by: patriot1957 | May 19, 2006 01:45 PM

"These programs and computers transcend state-of-the-art; in many cases, they are well into the future."

Uh-oh. They have a time machine too?

Thanks for mentioning this Patriot1957, I had heard of ECHELON (I wonder what meaning of the word they are using) but that was some time ago. I still maintain that no matter how many computers they have chewing away at electronic communications the end result is still three Alps and five Everests of useless data. If a little alarm goes off every time someone says "Bomb" or "Explode" or "Vote Democrat" or even "I bloody hate George bloody Bush," the buzzing must have driven them insane long ago.

Do I think that a computer recording the silly conversations I have with my sister a gross violation of the 4th Am? Oh yes. But I still find it amusing because idiots paid a lot of money for a computer program that analyses said conversations. It is the modern day equivalent of watching someone you detest blow all of his cash on a bottle of snake oil.

Posted by: Yeah, I got your 'keyword' | May 19, 2006 02:38 PM

Keyword

You're correct, I don't know how well Echelon works. It may very well be that the data is so overwhelming that you'd have to know who to target in order to do any good - that is matching OBL's voice print, etc.

The millennium attacks were prevented by good old fashioned border guards, not Echelon. 9-11 wasn't prevented, but we had in fact intercepted suspicious chatter, just not prioritized analyzing it. I bet they have added a lot of people to the employment rolls since then to sort suspicious chatter. Other attacks have been preceeded by an increase in "chatter" - who knows what that means but apparently the NSA and CIA (and MI5) don't since those other attacks happened anyway. Warnings against specific places (like those banking houses reportedly "targeted" a few years ago supposedly came from material seized overseas in terrorist raids.

So, in fact we have no real evidence Echelon is preventing us from being what Pat Roberts calls too dead to enjoy our civil liberties. In fact, the only thing that we are certain has worked is.... good old fashioned police and border guard work. But wait, I forgot, it makes me weak on terror and an America hater to say that, gee, border guards and police work (accomplished with respect for civil liberties) are thus far our most effective terror fighting tools. Shame on me.

But you have to admit the abuse potential is staggering. All you need is a voice print of a political enemy and every verbal communication they utter can be at your fingertips. When we had a Repub House and a Democratic President they were chomping at the bit for oversight of Echelon. Suddenly? Today's intelligence oversight is a noun and no longer a verb.

Posted by: patriot1957 | May 19, 2006 03:02 PM

Patrick Henry - give me liberty or give me death

Patrick Roberts - you don't have any civil liberties if you're dead


FDR - The only thing we have to fear is fear itself.

GW Bush - "One of the lessons of September 11 is we face a deadly foe who will kill on a moment's notice to try and shake our confidence and our will."

Posted by: pig in a poke | May 19, 2006 03:37 PM

It's amazing, when it hits the MSM home, THEN it becomes a major issue. :(

Meanwhile, troops can't even get clean underwear out in the field in Iraq. You know those little matters that can be cleared up quickly with pressing some politicos buttons? Noooooooooo, it's the political whining about unknown, maybe, inferred ideas about wire tapping that gets the news story.

:sigh:

==
ADMIN: Love the long missed Preview button. Just need the name field to be cookied, so that doesn't have to be filled all the time. How about a set-it-and-forget session cookie (site already tracks everything else), to relieve this one last chore?

Thanks!

Posted by: SandyK | May 19, 2006 06:35 PM

Oh, while I'm at it with cookies. You do know WashingtonPost.com tracks everything about our posting and more? How about THAT privacy invasion?

Spying is spying, be it phone records or tracking what folks read, their posting, their IPs, and whatever sys admins do with their tools. :evilgrin:

SandyK

Posted by: SandyK | May 19, 2006 06:39 PM

Patriot:

"DK, anyone can use a phone or internet reverse directory and find the address belonging to any published number. If you call 911 and hang up, a police car will appear at your door in short order (or long order if you live in an underfunded metropolis). So, when the feds compile a list of your calls, they also know exactly the name and address of those phones"

You're right, of course. I must have been too focused on what appears on a phone bill.

"My problem with Will's arguement- that SMith vs Md is carved in stone and universally applicable forever and ever Amen - is that we were all so much more information naive in 1979. Basic 911 (without the "caller ID" feature) wasn't even completed in the progressive state of California until 1985, much less the concept of enhanced 911 (with the caller ID feature) The thought that our phone records would be linked in computerized databases with SSN, address, credit card numbers, etc, and available to almost anyone with even basic computer skill, from their homes, with a few keystrokes was not even on the public radar in 1979."

I completely agree and would add that advancements in technology since then increase accessibility and opportunities for linking databases together. The increased speed of processors and storage along with advancements in RDBMS software increase feasibility of widespread monitoring as opposed to targetted investigations involving only a few individuals.

"I agree with you completely that privacy issues in communication haven't kept up with technology. But most of all I believe that in Smith vs MD the Supreme Court wasn't giving a stamp of approval to allowing the government to fish for unknown crimes by reviewing the records of citizens who didn't commit the crime."

I'm with you there and thats the direction I see all this going if I attempt to read the tea leaves in all the news stories that have been coming out. The other disturbing thing is the lack of oversight. during the confirmation hearings there were Senators confiding Hayden that they should have been informed of the phone record database 5 years ago. Hayden also aggressively maintains that the unwarranted wiretapping program is legal. But never mind he's qualified, knowledgeable, a can-do guy so news reports are that he is certain to be nominated. I guess I'm mixing subjects here, but to me they're all connected.

So is Rove gonna be indicted today?

I guess not - maybe next week.


Posted by: | May 20, 2006 08:05 AM

Sorry that was me.

Posted by: DK | May 20, 2006 08:06 AM

Will:

Let's get this out in the open. The only mention of the NSA in the ABC article is the author's (obsfucating) remarks that "ABC NEWS DOES NOT KNOW... whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls." (emphasis added)

Understood Will, thats why directly after that paragraph I wrote Anyway, I digress ...

Sorry for the confusion. In the hypothetical I was actually striving to be agency neutral. Thats why all I ever said was "the investigators.."

Obviously I was getting more and more far fetched as I went along. I did that to establish the point(s) where you think the Smith v. MD precedent no longer applies and you see the hypothetical actions as illegal. I suppose you believe the initial premise of a 5000 person monitoring as the part that is highly unlikely. My point is that with today's technology combined with lack of oversight and dubious legal justifications coming from the current administration, about many things (sorry, I'm not so good as you at separating out issues that I believe have bearing on or indicate tendencies that would affect the issue under discussion), widespread monitoring of 5000 people isn't necessarily out of the realm of possibility.

You imply that I'm being a Chicken Little, and I am painfully aware of that role that I'm playing. Believe me, its not a role I'm used to or feel comfortable with. I've never been one to be distrustful of my government, and I tend to side with law enforcement on issues related to suspect/criminal rights vs. police and or victim rights. However, revelations of the past few years combined with the knowledge that similar things have occurred in the past (take J. Edgar Hoover as a case in point) make me less inclined to be dissmissive of the potential for wrongdoing and make me worried that we are moving too far in the direction of a police state. I don't think we'll be there tomorrow, but these things work like sandpaper. Our intelligence agencies have had many powerful capabilities for years (the ECHELON describtion is the latest of many such discussions of capabilities that I have heard of over the years. The difference now is that I'm hearing about policies of using these systems and capabilities that Congressional oversight committees are unaware of and there are highly dubious legal justifications being constructed to justify all that is being done. I know you think I'm merging subjects again, but to me they're connected - they impact each other.

As far as the laws I'm suggesting having potential to lead to requirements for police to get warrants for asking questions - thats an even bigger stretch than my hypothetical scenario.

Catch you on the next topic.

Posted by: DK | May 20, 2006 11:06 AM

I served my country as an electronic technician in a combat communications group in the United States Air Force; our motto was 'first in last out'. Prior to that assignment I took an oath of enlistment, stating that I would defend our constitution against all enemies both foreign and domestic.

This domestic telephone and email monitoring is a very bad domestic attack on our forth Amendment rights.

The Fourth Amendment states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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. "

"Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." BENJAMIN FRANKLIN, Pennsylvania Assembly: Reply to the Governor, November 11, 1755.

These attacks on our liberty by our government officials are allowing the Terrorists to succeed.

Posted by: ex E4 USAF | May 24, 2006 11:14 PM

The most controversy is whether the governments are justified to track the telephone number. It may be an indispensible part of Anti-terrorism campaign,yet phone tapping undoubtly make it easy for someone to vilely ultilise this 'opportunity'. Allowing government to
watch the people's private life will corrupt the very foundation of democracy,which is our worst fear.
Nvertheless,it's after all very importent in helping us in fighting against the terrorists.That's where the paradox lies.Anyway,great care should be taken to prevent such tapping from being abused,for the road to hell is paved with good intention

Posted by: Terenas | May 26, 2006 03:34 AM

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