A reader points me to another example of the administration’s bogus talking points on FISA. The usual contention is that these wiretapping powers are needed in the heightened post-9/11 security environment. I didn’t exactly buy that rationale in the first place, but now a Qwest executive is claiming that he was approached way back in February 2001 with a request to participate in a legally dubious wiretapping scheme. Evidently, the NSA’s cavalier attitude toward judicial oversight predates the September 11 attack.
Also, the Qwest exec in question claims that the government dangled government contracts in front of telecom companies to entice them to cooperate. I think this is one of the most crucial reasons not to give telecom companies blanket immunity for their actions. Qwest did the right thing and took a financial hit as a result. It would be extremely unfair to allow AT&T and Verizon walk away unscathed, with extra money from those government contracts in its pockets. Even if you don’t think telecom companies should be punished for breaking the law, they certainly shouldn’t be financially rewarded.
Ryan Singel at the always-excellent Threat Level blog debunks the latest lies about wiretapping laws getting Americans killed in Iraq. The story claims that it took soldiers in Iraq 10 hours to get the necessary legal permission to wiretap the cell phones of terrorists who had kidnapped American soldiers.
As Singel points out, there are a bunch of problems with this story. In the first place, the military doesn’t need any court approval to do wiretaps physically outside of the United States, so if they had taps on cell phone towers in Iraq (and as Singel points out, if we don’t have wiretaps on the Iraqi cell phone network, “we all deserve tax refunds”), no approval would have been necessary. Secondly, the issue never reached the FISA court, as the executive branch determined it had the authority to conduct the search without a new court order. Third, most of the delay came not from the NSA’s doing paperwork required to determine if they needed a warrant, but from delays at the DOJ, which sat on the NSA’s request for seven hours. A timeline from Rep. Reyes tells the story:
At 10:00 a.m., key U.S. agencies met to discuss and develop various options for collecting additional intelligence relating to the kidnapping by accessing certain communications
At 10:52 a.m., the NSA notified the Department of Justice (DOJ) of its desire to collect some communications that require a FISA order. It was determined that some FISA coverage already existed.
At 12:53 p.m., the NSA General Counsel agreed that all of the requirements for an emergency FISA authorization had been met for the remaining collection of the communications inside the U.S.
Collection could have started immediately – the requirements of the statute were satisfied. As James Baker, head of the FISA office has testified to Congress, emergency authorization can take place in minutes and can be granted orally.
However, the NSA played it safe and waited for the Justice Department to give the go ahead. How long could that take?
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I was very interested to read Solveig’s recent discussion of copyright issues and the justice of file sharing. It seems to me that her line of arguments runs contrary to a core insight of libertarian theory, best articulated by Robert Nozick, that a just outcome is one that emerges from a series of just transactions. Nozick endorsed what he called historical theories of justice, contrasting them with patterned theories such Rawls’s Difference Principle. Libertarians have always been wary of starting with a desired social result (i.e. “everyone should have affordable health care”) and then reasoning backwards to derive a set of legal rules we think will achieve that outcome (i.e. Every employer shall provide health insurance to his employees,” “no hospital shall turn away an emergency room patient due to inability to pay”). That’s partly because we have an instinctive aversion to telling other people how they should live their lives, but just as importantly it’s because we we’re aware that these sorts of cause-and-effect predictions are extraordinarily difficult to make. Libertarians are constantly explaining the various clever and non-coercive mechanisms people develop to solve collective action problems that economic theory says can only be solved by government action.
For example, in the Abigail Alliance case, libertarians’ sympathies were with the plaintiffs, who assert that terminally ill patients have an inalienable right to experiment with unapproved but potentially life-saving drugs. FDA bureaucrats countered that, in essence, they needed the power to condemn certain people to death to ensure the integrity of their clinical testing program. Now, despite the prejudicial way I just described it, the FDA’s argument isn’t completely crazy. It really is easier to design statistically rigorous clinical trials if they can be assured that anyone they reject will not be able to get access to experimental drugs through other channels. And it’s at least possible that in the long run, ensuring the integrity of the current system of clinical trials will save lives on net.
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Earlier this month, a Minnesota jury found a Duluth-area single mother guilty of illicit file-sharing and ordered her to pay a six-figure fine. The evidence against the defendant seemed pretty airtight, but the fine struck me as unreasonably harsh—you’d never get a $222,000 fine for your first conviction of shoplifting physical CDs.
In this week’s podcast, we’re joined by two individuals who have been following this issue closely. Eric Bangeman is the managing editor of Ars Technica. He spent a week in Minnesota covering the trial, and he gives us a first-hand account of the proceedings Debbie Rose is an IP fellow at the Association for Competitive Technology, and she gives us her perspective on the broader legal and ethical issues.
There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!
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Matt links to a Post op-ed that rightly criticizes the Bush administration for insisting on completely unfettered wiretapping powers, but otherwise misses the boat on the details of the dispute between the White House and the Democratic leadership. The argument has two major problems. First, we’ve got this:
The administration says that FISA wasn’t intended to cover the collection of intelligence information overseas. That is correct, but many of the communications are being intercepted in the United States and, more important, may involve U.S. citizens. In that situation, and with telephone and e-mail communications between the U.S. and foreign countries far more common than when FISA was enacted in 1978, it is reasonable to bring the court into the picture. The measure strikes an appropriate balance between the demands of some civil liberties groups for individualized warrants and the administration’s desire for sweeping authority.
The phrase “bring the courts into the picture” makes it sound like court oversight for domestic-to-foreign communication is a new idea. But in fact it’s not—it’s the way FISA has worked since it was enacted. If you wanted to install a wiretap on American soil, you had to get a FISA warrant, regardless of whether the other end of the line was overseas or not. The question isn’t whether we should “bring the courts into the picture.” The question is whether we should cut the courts out of the oversight role they’ve played successfully for the last 30 years.
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I was a little surprised that Cindy Cohn at EFF all but endorsed the Restore Act, although they “remain deeply concerned about its embrace of so-called “blanket warrants.'” I imagine they place a high priority on ensuring their lawsuit against AT&T can go forward, so they’re willing to embrace legislation that’s not egregious in other respects as long as a “get out of jail free” card for AT&T isn’t in the package.
I’ve also got a new roundup of the FISA debate at Ars.
Here’s a satellite photo of Dick Cheney’s house, which I learned about on the Daily Show. He’s obviously very concerned about protecting his home from prying eyes. I’m sure he’s equally zealous in his defense of the privacy rights of ordinary Americans.
Update: One of Matt’s commenters notes that Mapquest doesn’t blur the observatory circle. Also, one of our commenters claims that although this is the vice president’s official residence, his family doesn’t actually live there. Still, I think it’s a safe bet that somebody from the government asked Google to blur the observatory circle. And I rather doubt they’d be so helpful if I asked them to blur my neighborhood.
Threat Level has an absolutely fascinating article about the topology of the worldwide data network and how it has given the NSA a windfall of easy surveillance access:
While nobody outside the intelligence community knows the exact volume of international telephone and internet traffic that crosses U.S. borders, experts agree that it bounces off a handful of key telephone switches and perhaps a dozen IXPs in coastal cities near undersea fiber-optic cable landings, particularly Miami, Los Angeles, New York and the San Francisco Bay Area.
Miami sees most of the internet traffic between South America and the rest of the world, including traffic passing from one South American country to another, says Bill Manning, the managing partner of ep.net. “Basically they backhaul to the United States, do the switch and haul it back down since (it’s) cheaper than crossing their international borders.”
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I’m not sure I buy the elaborate interpretations it offers, but this illusion sure is neat.
PJ Doland, the serial entrepreneur who’s graciously hosted this site for the last three years, recently launched his latest effort, Shouting Match. It’s an aggregator designed to capture the trends in the tech blogosphere. Unlike TechMeme, which gives you an undifferentiated blizzard of links, Shouting Mat.ch uses on a carefully selected list of the best tech blogs, and includes a handy Ajaxy excerpt widget so you can see what you’re getting before you click through to view the link.
I’ve been using it for a few weeks and I’ve found it a useful way to keep tabs on the conversation in the tech blogosphere. I think you will too. It includes three channels: tech, politics, and lifehack. I think that last one is for the sort of people who obsess over what kind of containers to buy for their paper clips.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.