http://arstechnica.com/…

Federal district judge Vaughn Walker has rejected lawsuits that aimed to hold telecommunications companies accountable for their role in a controversial warrantless surveillance program that was orchestrated in secret by the federal government. The Electronic Frontier Foundation and American Civil Liberties Union are preparing to appeal the dismissal.

The warrantless surveillance program is one the more contentious controversies that still lingers from Bush’s tenure in office. The Bush administration attempted to leverage the State Secrets privilege to block litigation that aimed to hold participants in the surveillance program accountable for violating privacy laws. When it became clear that the courts were going to allow the lawsuits to move forward, Congress intervened and passed a FISA amendment to grant the telecom companies explicit immunity. President Obama voted in favor of immunity, despite consistently promising to oppose it.

EFF and ACLU’s lawsuits against the telecoms are among the most significant pending lawsuits targeting the warrantless surveillance program, and they are viewed by privacy advocates as a means of bringing accountability and more robust judicial oversight to the surveillance mess. Judge Walker has thrown out the suits, citing the FISA telecom immunity amendment as the basis for dismissal. He affirmed that the evidence provided under seal by the government demonstrated that the conduct of the telecoms meets the criteria for immunity grants.

“While plaintiffs have made a valiant effort to challenge the sufficiency of certifications they are barred by statute from reviewing, their contentions under section 802 are not sufficiently substantial to persuade the court that the intent of Congress in enacting the statute should be frustrated in this proceeding in which the court is required to apply the statute,” Walker wrote in his decision. “The court has examined the Attorney General’s submissions and has determined that he has met his burden under section 802(a). The court is prohibited by section 802(c)(2) from opining further.”

The EFF and the ACLU are planning to launch an appeal, asserting that the FISA amendments which granted telecom immunity are unconstitutional.

“We’re deeply disappointed in Judge Walker’s ruling today,” said EFF Legal Director Cindy Cohn in a statement. “The retroactive immunity law unconstitutionally takes away Americans’ claims arising out of the First and Fourth Amendments, violates the federal government’s separation of powers as established in the Constitution, and robs innocent telecom customers of their rights without due process of law.”

I suppose the next step is the United States court of appeals. I don’t have much faith in them ruling in the pro-freedom direction. Nor the Supreme Court should it make it there.

http://www.eff.org/…

Friday evening, in a motion to dismiss Jewel v. NSA, EFF’s litigation against the National Security Agency for the warrantless wiretapping of countless Americans, the Obama Administration’s made two deeply troubling arguments.

First, they argued, exactly as the Bush Administration did on countless occasions, that the state secrets privilege requires the court to dismiss the issue out of hand. They argue that simply allowing the case to continue “would cause exceptionally grave harm to national security.” As in the past, this is a blatant ploy to dismiss the litigation without allowing the courts to consider the evidence.

It’s an especially disappointing argument to hear from the Obama Administration. As a candidate, Senator Obama lamented that the Bush Administration “invoked a legal tool known as the ’state secrets’ privilege more than any other previous administration to get cases thrown out of civil court.” He was right then, and we’re dismayed that he and his team seem to have forgotten.

Sad as that is, it’s the Department Of Justice’s second argument that is the most pernicious. The DOJ claims that the U.S. Government is completely immune from litigation for illegal spying — that the Government can never be sued for surveillance that violates federal privacy statutes.

This is a radical assertion that is utterly unprecedented. No one — not the White House, not the Justice Department, not any member of Congress, and not the Bush Administration — has ever interpreted the law this way.

Previously, the Bush Administration has argued that the U.S. possesses “sovereign immunity” from suit for conducting electronic surveillance that violates the Foreign Intelligence Surveillance Act (FISA). However, FISA is only one of several laws that restrict the government’s ability to wiretap. The Obama Administration goes two steps further than Bush did, and claims that the US PATRIOT Act also renders the U.S. immune from suit under the two remaining key federal surveillance laws: the Wiretap Act and the Stored Communications Act. Essentially, the Obama Adminstration has claimed that the government cannot be held accountable for illegal surveillance under any federal statutes.

Again, the gulf between Candidate Obama and President Obama is striking. As a candidate, Obama ran promising a new era of government transparency and accountability, an end to the Bush DOJ’s radical theories of executive power, and reform of the PATRIOT Act. But, this week, Obama’s own Department Of Justice has argued that, under the PATRIOT Act, the government shall be entirely unaccountable for surveilling Americans in violation of its own laws.

This isn’t change we can believe in. This is change for the worse.

Do I need to repeat myself about how I don’t think this is the change people were expecting?

I caught this comment on Slashdot about this story that I really liked.

It is my position that Bush was a horrible president because he weakened our constitution, was an ugly warmonger, and spent money like it was water.

It is my position that Obama is about the same with the only difference being who gets some of the wastefully spent money.

Both “sides” treat the populace like we’re their own public goatse waiting patiently to get stretched just a bit wider by some Republican prick or a Democratic cock.

If only that could be the image people imagined when someone said “Republican” or “Democrat.” Third parties would have no problem getting into office. Perhaps that could be the attack plan for 2012. Splice in a single frame of goatse.cx once in a while during R and D presidential debate feeds.

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http://rawstory.com/…

Former National Security Agency analyst Russell Tice, who helped expose the NSA’s warrantless wiretapping in December 2005, has now come forward with even more startling allegations. Tice told MSNBC’s Keith Olbermann on Wednesday that the programs that spied on Americans were not only much broader than previously acknowledged but specifically targeted journalists.

“The National Security Agency had access to all Americans’ communications — faxes, phone calls, and their computer communications,” Tice claimed. “It didn’t matter whether you were in Kansas, in the middle of the country, and you never made foreign communications at all. They monitored all communications.”

Tice further explained that “even for the NSA it’s impossible to literally collect all communications. … What was done was sort of an ability to look at the metadata … and ferret that information to determine what communications would ultimately be collected.”

According to Tice, in addition to this “low-tech, dragnet” approach, the NSA also had the ability to hone in on specific groups, and that was the aspect he himself was involved with. However, even within the NSA there was a cover story meant to prevent people like Tice from realizing what they were doing.

“In one of the operations that I was in, we looked at organizations, just supposedly so that we would not target them,” Tice told Olbermann. “What I was finding out, though, is that the collection on those organizations was 24/7 and 365 days a year — and it made no sense. … I started to investigate that. That’s about the time when they came after me to fire me.”

When Olbermann pressed him for specifics, Tice offered, “An organization that was collected on were US news organizations and reporters and journalists.”

“To what purpose?” Olbermann asked. “I mean, is there a file somewhere full of every email sent by all the reporters at the New York Times? Is there a recording somewhere of every conversation I had with my little nephew in upstate New York?”

Tice did not answer directly, but simply stated, “If it was involved in this specific avenue of collection, it would be everything.” He added, however, that he had no idea what was ultimately done with the information, except that he was sure it “was digitized and put on databases somewhere.”

Tice first began alleging that there were illegal activities going on at both the NSA and the Defense Intelligence Agency in December 2005, several months after being fired by the NSA. He also served at that time as a source for the New York Times story which revealed the existence of the NSA’s wireless wiretapping program.

Over the next several months, however, Tice was frustrated in his attempts to testify before Congress, had his credibility attacked by Bill O’Reilly and Rush Limbaugh, and was subpoenaed by a federal grand jury in an apparent attempt at intimidation.

Tice is now coming forward again now because George Bush is finally out of office. He told Olbermann that the Obama administration has not been in touch with him about his latest revelations, but, “I did send a letter to, I think it’s [Obama intelligence adviser John] Brennan — a handwritten letter, because I knew all my communications were tapped, my phones, my computer, and I’ve had the FBI on me like flies on you-know-what … and I’m assuming that he gave the note to our current president — that I intended to say a little bit more than I had in the past.”

This video is from MSNBC’s Countdown, broadcast Jan. 21, 2009.

Rob… I hope you aren’t part of this.

http://arstechnica.com/…

The executive branch may conduct warrantless surveillance in the name of national security, according to a decision by the secretive Foreign Intelligence Court of Review published Thursday. The decision, handed down in August, but published in redacted form this week, blessed surveillance under the stopgap Protect America Act, which was superseded last year by the FISA Amendments Act.

Like the Foreign Intelligence Surveillance Court, which issues secret warrants for both physical searches and electronic surveillance under the FISA law, the Foreign Intelligence Court of Review seldom makes its opinions public. In an order dated January 12, however, the Court found the release of an edited, unclassified version of its August opinion to be in the public interest.

The ruling concerns a challenge to surveillance authorized by the attorney general under the PAA. Though the party raising the challenge is not named—the opinion refers only to the “petitioner”—it is likely to be either a telecom or an Internet Service Provider, in principle, however, any entity with information about a target “reasonably believed to be located outside the United States,” such as a university or financial institution. Under the terms of the PAA, the attorney general is empowered to issue “authorizations” for surveillance that has traditionally required a court order issued by an independent magistrate.

For the first time, the Court explicitly asserted an exception to the Fourth Amendment’s warrant requirement for foreign intelligence surveillance meant to serve a national security purpose.

…

Concerns about abuse, the court held, amounted to “little more than a lament about the risk that government officials will not operate in good faith,” a risk present even when a warrant is issued. In effect, the court reasoned that since judges generally presume that law enforcement officials are being diligent and truthful in their applications for a warrant, the same presumption should be granted when intelligence agencies conduct surveillance without a warrant.

The court seemed similarly unconcerned with the danger that innocent persons’ information would be swept up in surveillance, calling such worries “overblown” in the light of “minimization” procedures designed to cull away any such “incidental” collections. “The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons,” the Court wrote, “and there is no evidence to the contrary.”

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.

Nope… nothing about exceptions for national security.

Little more than a lament that government bureaucrats will not operate in good faith? Seriously? So the drug war and Guantanamo and the whole torture debate and corruption scandals and the lying by the Bush administration about their wiretapping program and… and… and… are not enough to have serious questions regarding the bureaucrats moral compass?

http://www.prisonplanet.com/…

Lawrence Lessig, a respected Law Professor from Stanford University told an audience at this years Fortune’s Brainstorm Tech conference in Half Moon Bay, California, that “There’s going to be an i-9/11 event” which will act as a catalyst for a radical reworking of the law pertaining to the internet.

There’s going to be an i-9/11 event. Which doesn’t necessarily mean an Al Qaeda attack, it means an event where the instability or the insecurity of the internet becomes manifest during a malicious event which then inspires the government into a response. You’ve got to remember that after 9/11 the government drew up the Patriot Act within 20 days and it was passed.

The Patriot Act is huge and I remember someone asking a Justice Department official how did they write such a large statute so quickly, and of course the answer was that it has been sitting in the drawers of the Justice Department for the last 20 years waiting for the event where they would pull it out.

Of course, the Patriot Act is filled with all sorts of insanity about changing the way civil rights are protected, or not protected in this instance. So I was having dinner with Richard Clarke and I asked him if there is an equivalent, is there an i-Patriot Act just sitting waiting for some substantial event as an excuse to radically change the way the internet works. He said “of course there is”.

Skip to 4:30:

Lessig is the founder of Stanford Law School’s Center for Internet and Society. He is founding board member of Creative Commons and is a board member of the Electronic Frontier Foundation and of the Software Freedom Law Center. He is best known as a proponent of reduced legal restrictions on copyright, trademark and radio frequency spectrum, particularly in technology applications.

Anyone who doesn’t think the Internet as we know it can be controlled by the government is missing the obvious. The telecoms, which own all the major hubs and backbones, are in bed with the government. They now have immunity from instances where they work with the government to spy on subjects. They work with the NSA to tap major internet hubs with machines able to do realtime analysis of all traffic passing through it. The government even provides them with monopoly status in many parts of the country isolating them from competition. Just like all large corporations which are regulated… they are in bed with the corporatists running the government.

http://arstechnica.com/…

The US last week released its 2007 wiretapping stats, and they show that such surveillance is up a full 20 percent over the year before. The number of non-secret wiretaps is higher than it has ever been in the last decade, and not a single application was denied in all of 2007. If you’re concerned about privacy, though, the report makes clear that you’re statistically unlikely to be targeted unless you use a cell phone to run drugs. Murder might also earn you a wiretap, but apart from that, the authorities don’t seem to use wiretaps in all but unusual cases.

2,208 wiretaps were requested last year, up from 1,839 the year before, and the vast majority of them were run by state authorities; only 457 wiretaps were executed by the feds. No applications for wiretap were denied, but this is hardly uncommon. Since 1997, some 15,000 wiretaps have been made, but only four applications were rejected in that entire time.

When we look at the prevalence of wiretaps, two trends stand out. One is that taps are almost exclusively used on “portable devices,” including digital pagers and portable phones. In fact, 94 percent of all taps authorized last year were for such devices. The second trend is that most wiretaps are used in narcotics cases. 81 percent of all taps were for drug-related crime, with murder and assault coming in a distant second (6 percent).

Wiretaps apparently have something in common with shopping at bulk retailers; when you buy more items at once, the price goes down. The cost per intercept has been dropping since 2003, when it peaked at $62,164. In 2007, that number had fallen to $48,477 per investigation. While that still sounds pricey, the report notes that drug intercepts have often been used to make big busts. One set of 2007 wiretaps in Morris County, New Jersey led to the arrest of 105 people; another, in New York, scooped up 51 people, 48 of whom were later convicted. Another 57-day wiretap in California led to the seizure of 40 pounds of methamphetamine, four kilograms of cocaine, and $700,000 in cash.Of course, those are just regular warrants. The Justice Department also released information this week on secret warrants issued by the Foreign Intelligence Surveillance Court. These numbers are also rising, and have been going up since 2001; the increase is a dramatic one. In 2001, the Court approved only 1,012 applications, but approved 2,370 last year.

I’m glad the government is getting a better rate at which to waste our money on rights infringement. Is it likely that these larger drug busts got guys who were actually harming people? Yes, but those people should be arrested for that harm and not providing a drug to another individual in a completely consensual act. This war on drugs is a war on the public. It’s a negative sum game. A drug addiction is a personal problem, a family problem, a community problem. It’s a medical problem. It should be treated as such. In the least I’d like to see some consistency. Alcohol and tobacco are the precursor to far more harm then marijuana or LSD.

And as for the privacy invasion. Wasn’t all this FISA enhancement requested for terrorism? Why are we catching NY governors paying for sex and people selling goods?