Follow the Words

(12/21/05)

These fuckers are scared silly about this surveillance story. NYT bonzos called in to the White House. Gonzo and Condi fumbling for the right words. Cheney cuts his trip short.

What would be the legal ramifications of one agency, which is forbidden to spy domestically, were to set up the technical apparatus and then hand over the apparatus to another agency who actually had such domestic powers?

Why does the administration or it's mouthpieces always refer to “wiretaps” and phonecalls, i.e. analog type conversations? I draw your attention to the EFF's Analysis of Section 214 & 216 of the 2001 Patriot Act

http://www.eff.org/patriot/sunset/214.php

Before the PATRIOT Act, the government could only get a FISA pen-trap order when the communications to be monitored were likely to be either (1) those of an international terrorist or spy or (2) those of a foreign power or its agents relating to the criminal activities of an international terrorist or spy. PATRIOT 214 threw out this requirement. Now, any innocent person's communications can be tapped with a pen-trap so long as it is done "for" an intelligence investigation. The FBI doesn't have to demonstrate to the FISA court that the communications are relevant to its investigation. Nor can the court deny the FBI's request; if the FBI certifies the tap is "for" such an investigation, the FISA court must issue the order.

That Section 214 lowered the standard for FISA pen-traps is even more disturbing in light of the fact that PATRIOT Section 216 expanded their reach. Unlike regular wiretaps issued under much stricter standards, pen-traps aren't supposed to collect the actual content of your communications, such as what you say on the telephone. Instead, they capture "non-content" information about your communications, such as the telephone numbers that you dial or the numbers of people who call you.

Before PATRIOT, the statute defined pen registers and trap-and-trace devices solely in the context of telephone communications. But Section 216, which does not sunset, expanded the pen-trap definition to include devices that monitor Internet communications, without clarifying what portions of Internet communications are "content," requiring a full wiretap order, versus "non-content," which can be legally acquired only with a pen-trap order. At the very least, this change means that the government can use a pen-trap to see the email addresses of people you’re sending email to and the addresses of people who send email to you, along with the timestamp and size in bytes of each email. The FBI can monitor the IP addresses of all the computers you interact with over the Internet, or capture the IP addresses of every person visiting a particular website. Under the vaguely written statute, it may even be able to capture the URL of every web page that you read, although the FBI refuses to confirm or deny whether it has done so.

So what does this mean?

• Anytime anyone in the administration says that everything remains the same with “wiretaps”, they are parsing words. This has nothing to with “wiretaps.” “Wiretap”, in this instance, is a term of art referring to analog communications. The above section of the Patriot Act is referring to Internet monitoring.
  


• As most online discussion has pointed out, this gave Bush the powers he needed. So why did he not get the warrants needed retroactively? I believe that the law was drafted in haste by lawyers and staff who had only a cursory knowledge of the technology. Once this was put into operation and the administration saw the result (e.g. 9,000 traffic flows with 18000 IP addrs) the career DOJ guys freaked. They probably registered their opinion which is probably sitting in the NYTimes safe, still unpublished. Now that's happened before.