PeerFlow

Treasury discloses "secret" documents to spyee defense lawyer

That's the problem with secrets. You tell somebody, even somebody who works for you, and eventually they tell someone else:

As I recounted in Salon in July, lawyers for the Bush administration have gone to extreme and even bizarre lengths in their attempts to prevent the federal courts from determining the legality of the president's warrantless electronic surveillance program. A key problem for them is a top-secret document that the Treasury Department accidentally disclosed to Al-Haramain's lawyers in 2004. The document confirmed the surveillance of our clients, and thus, we contend, their legal standing to sue as victims of the program.

—More evidence of Bush's spying, Why the White House can no longer hide the truth about its warrantless surveillance of Americans. By Jon B. Eisenberg Salon.com, 12 September 2008

Given thousands (or millions?) of people spied upon, eventually somebody is going to gain a foothold of legal standing to sue.

Oh, my, it gets better:

But since the July 2 ruling, we have discovered additional evidence of surveillance of our clients. In fall 2007, FBI deputy director John Pistole gave a speech at a conference of bankers and lawyers in which Pistole thanked the bankers for their cooperation in giving the FBI financial records for terrorist financing investigations, and then went on to describe the FBI's 2004 investigation of Al-Haramain. In the text of the speech -- which is posted on the FBI's Web site -- Pistole explicitly admitted that the FBI had used "surveillance" among other "investigative tools" in the Al-Haramain investigation, noting that "it was the financial evidence that provided justification for the initial [terrorist] designation" in February 2004.

I've got to wonder whether the FBI director didn't know that he was providing standing, or whether he did it deliberately because he's tired of this legal charade and wants warrantless wiretapping to stop before the eventual lawsuits tar his agency even more than it already is.

If Al-Haramain wins, perhaps the next step would be to sue the government officials who authorized those illegal wiretaps.

-jsq

Selling Out Has Its Party: AT&T Fetes Blue Dogs

Glenn Greenwald has video of attendees refusing to say who they were or why they were there or what the party was for:

Amazingly, not a single one of the 25-30 people we tried to interview would speak to us about who they were, how they got invited, what the party's purpose was, why they were attending, etc. One attendee said he was with an "energy company," and the other confessed she was affiliated with a "trade association," but that was the full extent of their willingness to describe themselves or this event. It was as though they knew they're part of a filthy and deeply corrupt process and were ashamed of -- or at least eager to conceal -- their involvement in it. After just a few minutes, the private security teams demanded that we leave, and when we refused and continued to stand in front trying to interview the reticent attendees, the Denver Police forced us to move further and further away until finally we were unable to approach any more of the arriving guests.

— AT&T thanks the Blue Dog Democrats with a lavish party, Glenn Greenwald, Salon, Monday Aug. 25, 2008 11:15 EDT (updated below (with video added) - Update II) Thursday, Aug 28, 2008

The video includes Denver police repeatedly asking accredited press to move away from a public sidewalk.

At another party, an ABC News reporter was arrested while "attempting to take pictures on a public sidewalk of Democratic senators and VIP donors leaving a private meeting at the Brown Palace Hotel."

Parties like this are part of the lobbying revolving door that makes the U.S. look like a banana republic. I'm picking on Democrats, here, but at least 75% of Senate Democrats (including Hillary Clinton and Joe Biden, but not Barack Obama) voted against the recent bad FISA bill. A much higher percentage of Republicans voted for it.

If he were alive today, Robert Burns would say:

'We are bought and sold for telecom gold'
Such a parcel of rogues in a nation!

-jsq

Boehner's Latest Crying Jag

Boo hoo:

At least one lawmaker is already crying foul over Friday's expected Federal Communications Commission's censure of Comcast for faking internet traffic to limit its customers' peer-to-peer file sharing.

Republican minority leader Rep. John Boehner said the FCC would be "essentially regulating the internet."

— Lawmaker Cries Foul Ahead of FCC Net-Neutrality Decision, By David Kravets, ThreatLevel, July 31, 2008 | 7:02:45 PM

This is rather like crying foul because courts regulate contracts. I wonder how the free market would operate without them? The Internet free market in applications and services wouldn't operate very well without net neutrality.

I don't recall Boehner crying foul when Congress voted to regulate the Internet to require ISPs to hand over every bit (every email, phone call, web page, video, etc.) to the NSA and to legalize them having already done it when it was illegal. No free market talk from him then. Guess he didn't think the Fourth Amendment was worth crying over, unlike Anna Nicole Smith.

And back in 1995, it was the duopoly ISPs demanding regulation from the FCC, because they wanted to squelch VoIP.

Now they want to squelch everybody else's P2P and especially online video, except what they get a cut of. They think they can get away with it if the FCC stays out of the way, so now they are against regulation.

Their principles flip-flop kind of like Boehner's, don't they? Bunch of cry babies.

-jsq

Congress at 9% Job Approval: Why Is Lessig Putting Lipstick on the FISA Pig?

Larry Lessig points out that for the first time in history Congress' job performance is rated (by Rasmussen) in single digits: 9%. Some of his commenters think that has something to do with the recent FISA bill, and others think that's just a minority concern.

Three quarters of the American people and even a majority of Republicans oppose Bush's warrantless wiretaps. Two thirds oppose warrantless wiretaps even for communications between U.S. citizens and overseas persons, and almost 2/3 oppose immunity for telcos. Aome people call that a minority. I don't think that word means what they think it means.

Instead of standing up to Bush as the Constitution requires, Congress capitulated and gave the worst president in history still more powers to spy on the people. And the people do know about it:

"Congress rolled over on FISA" --LA Times
"Democrats voted for FISA out of fear" --Chicago Tribune
"Obama gives telecoms a pass" --Hartford Courant
"Senate approves bill to broaden wiretap powers" --NY Times
"Senate vote backs Bush on wiretaps" --Salt Lake Tribune
"Senate vote gives Bush what he wants on surveillance bill" --Seattle Times

News.google.com finds about 960 other stories much like those.

Is the FISA bill the only reason Congress's numbers tanked? Nope, but I don't think it's coincidence that they dropped immediately after the Senate passed that bill.

Why isn't Larry Lessig working to convince Obama he was wrong and getting him to fix it, instead of trying to put lipstick on that pig of a bill?

-jsq

Senate: Get Out of Jail Free, Telcos and Administration!

Yes, I know, the FISA bill just passed by the Senate doesn't preclude criminal liability. But Bush can, by pardoning for any and all crimes committed, just like Ford did for Nixon; the man who commuted Scooter Libby's sentence won't balk at that. And the bill does do away with civil liability, so the telcos never have to pay for illegal warrantless blanket wiretapping, and the criminal evidence against the politicians that hired it is hidden.

But, to be Chicago kind of candid, whatcha gonna do about it?

Today, the freshman senator from Illinois voted in favor of the FISA bill that provides retroactive legal protection to cooperating telecom companies that helped the feds eavesdrop on overseas calls. Up until a few weeks ago -- let's see, that would be shortly after the last primaries settled the Democratic nomination and terminated what's-her-name's once frontrunning campaign -- Obama adamantly opposed the bill. "Unequivocally" was the word his people used.

— Nomination in hand, Obama stiffs the Dem left on FISA vote, Andrew Malcolm, L.A. Times, 9 July 2008

When did the U.S. lurch so far to the right that jetissoning the Fourth Amendment is considered running to the center?

The "compromise" the bill was supposed to represent is nonexistent;

Patrick Henry Was Unreasonable, Too: Fight FISA "Compromise" on the Fourth of July!

On the Fourth of July, who wants to legalize their government spying on them, their children, their parents, and their neighbors, without even a warrant? Listening to every phone call; reading every text message, IM, email, and facebook poke; watching every video you post or view? This is what we expect from Hugo Chavez, from Fidel Castro, or from the old Soviet Union. Yet that is just what the United States Senate is proposing to do, after the House already passed it.

After fighting and winning a war at long odds against the greatest empire on earth, at the demand of the people, the Founders of U.S. added a Bill of Rights to the Constitution, the fourth of ten of which is:

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.

—Fourth Amendment, U.S. Constitution, effective 15 Dec 1791

That is what the Congress proposes to give away next week, by saying telcos like AT&T and Verizon can spy on you as long as they have a note from the president saying it's OK.

The Internet provides us tools to bring the Senators to their senses.

To quote a fighter against that same world-spanning empire, Mohandas K. Gandhi:

Amnesty Foes 2.0: SenatorObama-PleaseVoteAgainstFISA

I've been waiting for this to hit the bigtime, and it has, it's been slashdotted:

ya really notes a blog posting up at Wired reporting that foes of the Telecom Amnesty Bill have mounted a campaign on Barack Obama's own website. Though the group was created only days ago, on June 25, it has grown to be the fifth largest among 7,000 such groups, just short of Women for Obama. Although it is widely known that Obama changed his stance from opposing telecom immunity to supporting it, many have not given up hope of getting him to switch once again.

Telecom Amnesty Foes On the Move, Posted by kdawson, slashdot, on Tuesday July 01, @08:02AM from the one-week-and-counting dept.

And today the group has more than 9,000 members and is #2 among all MyBO groups.

It's everywhere else, too, Time, WSJ, Wired, Huffington Post, TPM, DailyKos, MyDD, OpenLeft, digg, reddit, and of course facebook. Read all about it on the wiki.

(Yes, I'm a member of the group, since about the second day, and here's what I think about the issue.)

This group is a goldmine of information about which telecoms gave what money to whom.

The most significant part to me is that people are using a candidate's own organizing tools to attempt to organize the candidate. Not stopping there, either, attempting to organize allies for the candidate. Obama claims to be people-powered. Let him say that while other politicians follow money from lobbyists, he listens to the people who give him money, who are the people, and when they said think again he did, and discovered the bogus House FISA "compromise" bill is no such thing, and now he's against it. We'll see.

-jsq

Banana Republic, DC: Telecom Lobbying Revolving Door

Greenwald notes that AT&T spends more in three months for lobbying than EFF's entire budget for a year. Then he spells out how the lobbying revolving door works, and concludes:

The "two sides" referenced there means the House Democratic leadership and the telecoms. Congressional leaders are "negotiating" with the telecoms -- the defendants in pending lawsuits -- regarding the best way for immunizing them from liability for their lawbreaking, no doubt with the help of the former Democratic members and staffers now being paid by the telecoms to speak to their former bosses and colleagues about what they should do. To describe the process is to illustrate its oozing, banana-republic-like corruption, but that's generally how our laws are written.

None of this is particularly new, but it's still remarkable to be able to document it in such grotesque detail and see how transparent it all is. In one sense, it's just extraordinary how seamlessly and relentlessly the wheels of this dirty process churn. But in another sense, it's perhaps even more remarkable -- given the forces lined up behind telecom amnesty -- that those who have been working against it, with far fewer resources and relying largely on a series of disruptive tactics and ongoing efforts to mobilize citizen anger, have been able to stop it so far.

— How telecoms are attempting to buy amnesty from Congress, Glenn Greenwald, Salon.com, Saturday May 24, 2008 06:48 EDT

Remember, AT&T and the other telcos and cablecos are the same companies that want to nuke net neutrality in the name of competition and progress; two other flags they behind, just like the banana republic flag of national security.

-jsq

Blocking Civil Suits: Telecoms Lobbied White House Hard for Immunity

Well, it seems the telcos are a bit worried about those lawsuits:

The Bush administration is refusing to disclose internal e-mails, letters and notes showing contacts with major telecommunications companies over how to persuade Congress to back a controversial surveillance bill, according to recently disclosed court documents.

The existence of these documents surfaced only in recent days as a result of a Freedom of Information Act lawsuit filed by a privacy group called the Electronic Frontier Foundation. The foundation (alerted to the issue in part by a NEWSWEEK story last fall) is seeking information about communications among administration officials, Congress and a battery of politically well-connected lawyers and lobbyists hired by such big telecom carriers as AT&T and Verizon. Court papers recently filed by government lawyers in the case confirm for the first time that since last fall unnamed representatives of the telecoms phoned and e-mailed administration officials to talk about ways to block more than 40 civil suits accusing the companies of privacy violations because of their participation in a secret post-9/11 surveillance program ordered by the White House.

At the time, the White House was proposing a surveillance bill—strongly backed by the telecoms—that included a sweeping provision that would grant them retroactive immunity from any lawsuits accusing the companies of wrongdoing related to the surveillance program.

— Just Between Us, Telecoms and the Bush administration talked about how to keep their surveillance program under wraps. by Michael Isikoff and Mark Hosenball, TERROR WATCH, Newsweek, Apr 30, 2008 | Updated: 6:09 p.m. ET Apr 30, 2008

It's sad to see professional military men like Lt. General Ronald L. Burgess, Jr., Office of the Director of National Intelligence, shilling for an administration that is so blatantly protecting itself and big corporations against justice for its own wrongdoing. White House stonewalling over first the existence of these documents, and now, since a judge ordered them to reveal that, release of the documents, isn't about any "war on terror". It's about protecting lawbreakers and control of the people:

Panopticon Click: NYTimes and Wapo Catch on to Packet Privacy

When both the New York Times and the Washington Post catch on, the idea of online privacy protection from ISPs must be catching on:

It’s not paranoia: they really are spying on you.

— The Already Big Thing on the Internet: Spying on Users, By ADAM COHEN, New York Times, Published: April 5, 2008

Some specifics:

The online behavior of a small but growing number of computer users in the United States is monitored by their Internet service providers, who have access to every click and keystroke that comes down the line.

— Every Click You Make: Internet Providers Quietly Test Expanded Tracking of Web Use to Target Advertising By Peter Whoriskey, Washington Post Staff Writer, Friday, April 4, 2008; Page D01

Some say privacy is only distant nostalgia; I say we need to do something about it. We need packet privacy.

Laissez faire won't get 'er done. As Cohen writes:

Nacchio Gets New Trial and Judge

All guilty counts thrown out, and not just a new trial, but a new judge:

The 10th Circuit Court of Appeals has overturned the guilty verdict in the criminal insider trading case of former Qwest CEO Joe Nacchio and ordered a new trial before a different judge.

The 2-1 decision cited U.S. District Judge Edward Nottingham's exclusion of expert testimony by Northwestern University law professor and private consultant Daniel Fischel.

Fischel was allowed to testify on Nacchio's behalf about the facts behind his stock sales, but was excluded from providing economic analysis.

— Nacchio conviction overturned, By Andy Vuong, The Denver Post , Article Last Updated: 03/17/2008 10:33:03 PM MDT

What else will a new trial reveal about the government's dealings with Qwest about warrantless wiretapping?

-jsq

Snooping as Free Speech: Verizon Claims Revealing Sensitive Customer Data is Its Right

It's a good thing I hadn't had my coffee yet:

Verizon is seeking to have a lawsuit filed against it for allegedly illegally helping the government eavesdrop on its customers and data mine their call records dismissed. The company argues that the suit infringes on the company's First Amendment rights.

— Verizon: Suing Us For Turning Over Customer Call Records Violates Our Free Speech Rights, By Ryan Singel ThreatLevel, May 04, 2007 | 5:59:00 AM

This is so funny I would have sprayed the coffee.

Funny in a gallows-humor kind of way. As in Verizon must be really desperate to try something like this. And as in the U.S. is in a bad way when telcos have apparently been handing over all their traffic to a secret spy agency and a court will even entertain an argument that their doing so is free speech. At least the judge in question has thus far allowed suits against Verizon in these matters to proceed. Maybe he will in this case, too.

If there were a real market for telecoms and ISPs in the U.S., this sort of thing would be less likely to happen, because some of the affected companies would possibly make a point of refusing to spy on their own customers, and would be rewarded by gaining customers.

-jsq

Where the Recipient is Going to Be: Any E-Mail, File Transfer, or Web Search

People are surprised to learn this?

In the end, it turns out it's all about the emails.

— Spying Fight about Emails, Not Phone Calls, DOJ Reveals, By Ryan Singel ThreatLevel, Wired, March 04, 2008 | 4:47:36 PMCategories: NSA

The blogger goes on to point out that almost all of the recent fearmongering, which has been about telephone calls, is just plain wrong. Duh! Half the fearmongers don't understand what they're talking about (e.g.,

Five of Thousands: Requests FISA Court Rejected

This is what the supporters of retroactive immunity think wasn't sufficient: EPIC compiled a table of FISA Court cases. From 1979 through 2006, FISC heard thousands of cases and rejected only 5.

Retroactive immunity isn't about protecting telcos: it's about hoovering up everything, and it's about a completely unconstrained "unitary executive".

-jsq

Contempt: What CCIA has for Retroactive Immunity

Ed Black by Declan McCullagh

It's time somebody treated the fear-mongering about retroactive immunity as it d eserves:

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information.

— To the Members of the U.S. House of Representatives, Edward J. Black, President & CEO, Computer & Communications Industry Association, 29 February 2008

CCIA represents many of the corporations that are called upon by FISA.

-jsq

Billboard Liberation Front: AT&T Works in More Places, Like NSA

Billboard Liberation Front explains warrantless wiretapping to the public.

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Cooperation and Communicators: Would Immunity Make Telcos Cooperate with Government Requests?

On The Communicators on C-SPAN (23 Feb 2008), Marc Rotenberg of Electronic Privacy Information Center (EPIC) made an interesting point. Retroactive immunity for warrantless wiretapping could well mean to telcos that the law could change at the whim of the president, so they might be more apprehensive about cooperating with governmental wiretap requests. After all, the current legal framework says they do have to cooperate if served a warrant, but not without. Such whims could mean they have to cooperate with any old request or face retribution. They may already think that, due to Joe Nacchio of Qwest claiming that his company was denied contracts for not cooperating as part of his appeal against an insider trading conviction, which case itself is bogus if he's right that he had reasonable expectation of such contracts. It's a funny thing when you subvert the rule of law and replace it with a "unitary executive": nobody knows where they stand anymore.

Meanwhile, Patrick Philbin, identified in the on-screen legend only as a "Washington-area attorney" (the introduction did say he was formerly a Bush appointee in various positions), kept claiming that there wasn't even any proof that any telcos had cooperated without warrants, while arguing that without retroactive immunity they wouldn't cooperate. In addition to those positions being somewhat contradictory, if I'm not Cheney has said on the air recently that the telcos did cooperate, so I don't know why Philbin continues this sort of obfuscation. Well, unless it's the obvious: he's protecting his former bosses.

The Communicators is very interesting because it one or two people half an hour to say what they mean in their own words. YMMV, but in this case it sure looked to me like Rotenberg was being very reasonable and standing for the rule of law, while Philbin was stonewalling using every legal subterfuge that came to his mind. This impression wouldn't have been nearly as clear from a few sound bites.

-jsq

Policing Cyberspace: any e-mail, file transfer, or Web search

A few days ago I remarked that potential loss of liability protection probably wouldn't stop the telcos from filtering all Internet traffic because they'd get immunity, possibly in the FISA legislation currently being debated in the Senate. A few days later, the New Yorker revealed that the White House indeed has a plan for that:

“The real question is what to do about industry,” McConnell told me. “Ninety-five per cent of this is a private-sector problem.” He claimed that cyber-theft accounted for as much as a hundred billion dollars in annual losses to the American economy. “The real problem is the perpetrator who doesn’t care about stealing—he just wants to destroy.” The plan will propose restrictions that are certain to be unpopular. In order for cyberspace to be policed, Internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving government the authority to examine the content of any e-mail, file transfer, or Web search. “Google has records that could help in a cyber-investigation,” he said. Giorgio warned me, “We have a saying in this business: ‘Privacy and security are a zero-sum game.’ ”

— The Spymaster, by Lawrence Wright, The New Yorker, 21 January 2008

Bruce Schneier has already demolished the "privacy vs. security" canard: it's really liberty vs. control.

It figures that it would be Director of National Intelligence Mike McConnell pushing monitoring the whole Internet, since he's one of the key figures behind retroactive telecom immunity for illegal warrantless wiretapping. That was a bad idea, and this is also a bad idea.

But it's also why AT&T may have good reason to believe there'd be no liability for filtering the entire Internet.

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Retroactive Immunity and Administrative Discipline: It's Not About Telcos

Retroactive immunity for whom?

Telecoms already have immunity under existing FISA law where they acted pursuant to written government certification or where they prove they acted in good faith (see 18 USC 2520 (d)). There is no reason that the federal courts presiding over these cases can't simply make that determiniation, as they do in countless other cases involving classified information.

— Jay Rockefeller's unintentionally revealing comments, Glenn Greenwald, Unclaimed Territory, Salon.com, Thursday January 24, 2008 07:33 EST

There's even a two year statue of limitations in the Code.

Here's one version of what this is really about:

Joel Johnson on Filtering on AT&T Online Show

The editor of BoingBoing Gadgets goes on an AT&T-sponsored online-only video show and asks about AT&T's announcement that it will filter all Internet traffic. Getting no straight answers from the host, he asks the audience:

"Do you guys want AT&T to read your emails?"

"No!"

Do you want AT&T to like open up your instant message conversation to see if you said something they didn't like or maybe the government didn't like?"

"No!"

— Talking About AT&T's Internet Filtering on AT&T's The Hugh Thompson Show BoingBoing Gadgets, Posted by Joel Johnson, January 21, 2008 5:23 AM

Johnson noticed that the crew of the show was not happy:

Packet Privacy and Net Neutrality

Everybody's familiar with consumer identity privacy, as in protecting passwords and social security numbers and complying with HIPAA, GLBA, SOX, PIPEDA, et al. But what about packet privacy?

Never mind net neutrality, I want my privacy. As in packet privacy. The telcos say they need to sell non-neutral routing of traffic to recover the cost of building broadband networks. Moving from the Internet, where a packet-is-a-packet, to something that looks suspiciously like the 20th century telephone network requires remarrying the content and connectivity that TCP/IP divorced. It requires deep packet inspection. It requires looking at the content of communication.

AT&tT does not plan to roll out two physical pipes to every end point in order to sell Google enhanced access. The new telco plan calls for content-based routing to separate traffic into media and destination specific VPNs (Virtual Private Networks). Laws exist to address the substantial privacy threats created by the fact telephone companies know Mr. Smith called Mr. Jones, but the privacy risks associated with “content routing” replacing “end point routing” enter an different realm.

— Forget Neutrality — Keep Packets Private, by Daniel Berninger, GigaOm, Sunday, January 14, 2007 at 8:30 PM PT

Despite Berninger's phrasing, packet privacy isn't something separate from net neutrality: it's one of the key features of it. The point is that net neutrality isn't just about pricing policies or technical means of content routing: it's about privacy. And privacy is an issue that everybody understands. Stifling, throttling, or disconnecting without announced limits, censoring, wiretapping, and espionage: these are all violations of packet privacy.

-jsq

Wiretapping before 9/11: AT&T, NSA, Verizon, Level 3

Why would an administration that currently has access to all data going over the Internet want more competition in the ISP market?

Mark Klein going to Washington to blow the whistle some more on AT&T on giving NSA unfettered access to AT&T's network:

"If they've done something massively illegal and unconstitutional -- well, they should suffer the consequences," Klein said. "It's not my place to feel bad for them. They made their bed, they have to lie in it. The ones who did [anything wrong], you can be sure, are high up in the company. Not the average Joes, who I enjoyed working with."

— A Story of Surveillance, Former Technician 'Turning In' AT&T Over NSA Program, By Ellen Nakashima, Washington Post Staff Writer, Wednesday, November 7, 2007; Page D01

While the Washington Post, for example, does get at one main point:

Contrary to the government's depiction of its surveillance program as aimed at overseas terrorists, Klein said, much of the data sent through AT&T to the NSA was purely domestic. Klein said he believes that the NSA was analyzing the records for usage patterns as well as for content.

It neglects to mention an even bigger point:

Qwest Case and National Competitiveness

This case will forever be murky if retroactive telecom immunity for participating in illegal wiretapping passes, yet it has already thrown some light on some of the murkiest areas of government-corporate interaction.

Former Qwest CEO Joseph P. Nacchio, who has been convicted of insider trading for selling stock while Qwest's stock price was tanking, claims he had reason to believe Qwest would get lucrative government contracts, and that Qwest was denied them because he refused to participate in an illegal program. When this happened is very interesting:

The phone company Qwest Communications refused a proposal from the National Security Agency that the company's lawyers considered illegal in February 2001, nearly seven months before the terrorist attacks on Sept. 11, the former head of the company contends in newly unsealed court filings.

— Former Phone Chief Says Spy Agency Sought Surveillance Help Before 9/11, By Scott Shane, October 14, 2007

So if Nacchio is right, massive wiretapping by the current U.S. administration didn't start as part of the "War on Terror"; it must have started for some other reason.

The best the prosecution has been able to come up with is:

Who's the Second Largest Contributor to U.S. Congress Members?

AT&T. Time Warner, Bellsouth, and MCI all show up in the same list.

Major AT&T recipients include Sen. Jay Rockefeller, D-WV who is a big supporter of retroactive immunity for telco spying, and who recently (spring 2007, just as the telcos started pushing for that immunity) got a big spike in Verizon employee contributions, as well.

Also Sen. Harry Reid, Senate Majority Leader, gets significant AT&T contributions. This is the same Harry Reid who won't honor Sen. Chris Dodd's hold on the bill containing that amnesty.

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FCC, Telcos, Congress, and FISA

The FCC won't investigate possible illegal telco activities:

The head of the U.S. Federal Communications Commission declined to investigate reports that phone companies turned over customer records to the National Security Agency, citing national security concerns, according to documents released on Friday.

FCC Chairman Kevin Martin turned down a congressional request for an investigation as a top intelligence official concluded it would "pose an unnecessary risk of damage to the national security," according to a letter National Intelligence Director Michael McConnell sent to Martin on Tuesday.

— FCC won't probe disclosure of phone records, By Reuters, October 6, 2007, 4:00 PM PDT

It seems unlikely the FCC will investigate active wiretapping, either. National security: the root password to the Constitution.

But Congress won't let the telcos off the hook, well, not completely:

House Democrats have refused to submit to Bush administration requests to save telecommunications companies that assisted in a warrantless wiretapping scheme from lawsuits or prosecution, and they want to require judicial approval for future efforts to spy on Americans.

...

Under the new law, the Attorney General or Director of National Intelligence would be authorized to receive blanket warrants to eavesdrop on several foreign intelligence targets who could call into the United States, but the bill would restore FISA court reviews of targeting procedures and steps taken to "minimize" Americans' exposure to surveillance. If an American is to become the "target" of surveillance, intelligence agencies would be required to seek an individualized warrant from the FISA court.

— Proposed FISA update would not give telecom companies legal protection, by Nick Juliano, RawStory, Tuesday October 9, 2007

The Foreign Intelligence Surveillance Court already is so secretive that although its court rules say it has a seal, there's no image of it available anywhere on the web that I could find, and it already lets intelligence agencies apply within a few days for retroactive authorization for wiretaps.

Of course, this bill would have to pass the Senate and get signed by the president or get enough votes to override a veto. But at least the former law didn't retroactively immunize the telcos, and this bill doesn't, either.

-jsq

FCC Investigating Wiretapping?

Now this would be a good thing if it happened:

House telecom subcommittee Chairman Edward Markey (D-Mass.) repeated his call for the Federal Communications Commission to investigate widespread allegations of telecom privacy law violations by intelligence agencies that received cooperation from telecom carriers in anti-terrorist surveillance efforts.

— Markey renews calls for FCC investigation into wiretapping, By Jeffrey Silva, RCCWireless News, September 12, 2007 - 2:13 pm EDT

That would be about as likely as Gonzales starting such an investigation.

Oh, wait:

After Markey wrote Martin in March to ask him to launch an investigation into whether telecom privacy laws have been broken, the FCC chairman wrote Attorney General Alberto Gonzales to verify that the agency could not conduct such a probe because it would violate federal laws governing disclosure of state secrets. Gonzales, who recently announced his resignation, has yet to respond to Martin.

Markey points at a number of events since his first request, such as that it's not a secret anymore that the government has been using telcos to wiretap.

It would be good if the FCC were to represent the public interest, rather than just the telco and cableco and the administration's interest.

-jsq

PS: Seen on Fergie's tech blog.

Intended vs. Legal

Shortly after a high level U.S. official acknowledged that telephone companies have helped the government in illegal spying, this comes out:

WASHINGTON — The Bush administration wants the power to grant legal immunity to telecommunications companies that are slapped with privacy suits for cooperating with the White House's controversial warrantless eavesdropping program.

The authority would effectively shut down dozens of lawsuits filed against telecommunications companies accused of helping set up the program.

The vaguely worded proposal would shield any person who allegedly provided information, infrastructure or "any other form of assistance" to the intelligence agencies after the Sept. 11, 2001 terror attacks. It covers any classified communications activity intended to protect the country from terrorism.

— Bush Seeks Legal Immunity for Telecoms, By KATHERINE SHRADER, Associated Press Writer, August 31, 2007 - 5:02 p.m. EDT

Let's let President Nixon sum it up:

Well, when the president does it that means that it is not illegal.

— Richard M. Nixon interviewed by David Frost, 19 May 1977.

Yet the same administration can't be proactive about effective regulation of first-mile Internet access for effective competition.

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Duopoly Spies

Well, I had been waiting to post something about the telcos and domestic wiretapping until more news came out, since much of it was still hearsay. But now National Intelligence Director and former National Security Agency Director Mike McConnell has confirmed it:

Now the second part of the issue was under the president's program, the terrorist surveillance program, the private sector had assisted us. Because if you're going to get access you've got to have a partner and they were being sued. Now if you play out the suits at the value they're claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities.

— Transcript: Debate on the foreign intelligence surveillance act, By Chris Roberts, ©El Paso Times, Article Launched: 08/22/2007 01:05:57 AM MDT

Ryan Singel points out in Wired's Threat Level blog that this is even though the same McConnell signed a sworn declaration in April saying to reveal that NSA and Verizon had such a relationship "would cause exceptionally grave harm to the national security."