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Terrorist Spying and the Realities of Signal Intelligence

From the Captain's Quarters

The issue of Internet monitoring has some in the US uncomfortable about breaches of privacy. However, the terrorists use that as a decentralized communication method, and a willful refusal to investigate these communications is sheer folly, as this raid attests. Should the Canadians have eschewed their investigation — and waited until this group killed hundreds or thousands of people before knowing anything about them? The Internet is not a private network, as some could argue the phone systems provide. Communications are not point-to-point but broadcast, and the expectation of privacy in Internet communications should have disappeared long ago.

There are still people out there screaming about how invasive it is to have the NSA or any Nation's version of the NSA spy on its own citizens. First off, I suppose I would ask you how long you feel like living.

Here in the US, there is no right to privacy. It is not enumerated in the Bill of Rights. Anyone who claims that there is a right to privacy clearly has not read the Bill of Rights, or has not read it closely enough.

Secondly, how do you build a case to monitor someone's telecommunications or electronic signals (Signal Intelligence, or SIG-INT) when you can change your email address, your phone number, your IP, and your screen name more often than some people shower?

In an era of disposable "pre-paid" cell phones you can have any number of phone numbers at your fingertips. You can use Internet Cafe's or Wi-Fi hotspots to access the internet. You can change your screen name at your whimsy. You can use as many; Hotmail, Gmail, or Yahoo mail addresses as you can remember passwords for. There are programs that can change your IP to appear to be from somewhere else.

You can use Skype, or Net2Phone for voice communications in addition to your disposable cell phones.

As white hat, how do you track down the communications? How do you track that Jihad Joe is sending mail from Gmail, and getting replies back from who he emailed from Hotmail to a Hotmail account?

There are enough "convenience" resources out there where Jihad Joe could never be caught, even under a very loose set of rules for "terror surveillance”.

I would bet we are only catching the sloppy terrorists, the ones who are still using landlines as their main communication medium, or the ones who are using the same email provider and address on a regular basis.

The terrorists that scare me are the ones who never use the same email address for more than a day or two, or never use a phone for more than one or two conversations, and that may evade capture.

No matter how good our "spooks" are, they are on defense. As long as we are on defense you can't afford to ever be wrong or to ever miss something. They miss something, and we end up with 9/11.

Our men and women at the NSA have a seemingly impossible task. The SIG-INT they have to muddle through in order to catch the real perps must be mind-boggling.

Give our men and women a break and let them do their job. Believe me, they have bigger fish to fry, and more important things to worry about than whether or not you like anchovies on your pizza.

About ELF

  • anonymous

    Dear Sir,
    As a pilot for 14 years third generation citizen on my fathers side and My Mothers family arrived in the new world over 400 years ago. My Surmane is armenian. Armmenians are the first nation to accept Cristianity and the victims of many jihads for they are surrounded by Muslim nations. When the Us state department anounced the requirement that Armenians would have to register with many other nationalities(all muslim states). It was later annouced as a mistake and reversed. How can I Trust My government. I’ve a hobby of building aircraft. Check out http://WWW.EAA.ORG. MY neighbors have used the fact that I’ve various aircraft kits and had one finished arcraft as a reason to call the local possibly the federal authorities. God help us. The actions of 19 men I consider them cowards Have turned this great country into paranoid mob. I will fight for this country if allowed. Don’t expect me to live here if my freedoms are curtailed. Also my dad was a federal agent for 30 years because of old age he still believes that the authorities don’t have the right to search you property without a warrant. Step over to my point of view see if you still want the government data mining who you’ve been calling, dating, etc. God Help us all

  • http://blog.elfrederick.org E L Frederick

    All that, and yet you are still free to reply to this post… what was your point again?

  • Bliffle

    Everything you cited (up to the last paragraph) argues that terrorists can evade whatever techniques the NSA/CIA contrive to spy on people. Your last paragraph is contrary to your premises!

    At the same time it is unlikely that ordinary unsuspecting people would employ such strategems.

    Therefore, if the NSA/CIA cannot successfully spy on terrorists, the only plausible target of their spying is ordinary unsuspecting citizens!

  • http://blog.elfrederick.org E L Frederick

    I can see how you can read that into the post. However that was not the intended conclusion. The was designed to show how hard it is to find a “real” terrorist.

    Another point I would make, is that we do not have a very loose set of rules for the NSA to work from. There is a very strict set of criteria that the NSA must work from in order to listen into phone calls.

  • anonymous

    The point is you are datamining peoples phone calls. Now cross reference that with web surfing habits. Include data aquired via a private company about your shopping habits, via your shopping discount card and credit card. Lets now add your medical and precription history. Now lets add in where you shop for gas(where and how much). Hmm Is this information available to the local PD also. It seems to be, Local cops do not follow your checks and balances I know from experience. Maybe you don’t see eye to eye with a local cop what then. Its a lot of information. Its an orwellian dream. Please don’t delude yourself
    or try to us. If the information is available it will be abused it has in the past and will in the future. This is a tipping point in our history. It will lead to tremendous abuses. I know from experience

  • http://blog.elfrederick.org E L Frederick

    You know from experience… oh really… what experience?

  • gonzo marx

    well, i;ll take a swing…ex-military and currently in the telecomm industry in a technical capacity…

    the earlier point brought up was completely correct

    intelligent use of available resources make it virtually impossible to track and crack a determined perpetrator dedicated to eluding surveillance, therefore the ONLY possible use for the violations of FISA laws among other 4th and 5th amendment safeguards are for purposes other than those proposed…sheer logic and the available facts show that

    it is NEVER aceptable to give up Liberty for the false illusion of non-existant security…so said our Founders, and so it is still true to this day

    i fear quislings like the original Poster who would give all away in the name of “security” far more than i do the terrorists who seek to harm us and our way of Life

    giving in to police state tactics gives them the victory and makes us no safer

    Excelsior?

  • Anonymous

    Last time I checked this was a government of the people by the people and for the people. It’s common knowledge That most all of our representatives didn’t read the patriot act before passing it. Even then they propably wouldn’t have understood the ramifications of the act. This country has slide into a paraniod phase that puts the mood of the cold war to shame. The level of Intrusion of the government into public lives is now unequel and will have horrible consequences. The events of 9-11 were horrible To anyone directly or indirectly affected yet we are still a free nation. The more systems that are put in place to “protect us” The less freedoms we will enjoy. Just look at the abuses of power in the name of protect their own populations of soviet and chinese communist regimes. History repeats itself the information will be abused.

  • http://blog.elfrederick.org E L Frederick

    #8 & 9: “It’s common knowledge That most all of our representatives didn’t read the patriot act before passing it.”

    Common knowledge? Didn’t read it? I think you are fooling yourself.

    “they propably wouldn’t have understood the ramifications of the act.”

    If you can understand them, why can they? Shouldn’t they be at given as much credit as you?

    Where are all the victims? If your civil rights are violated, but your proven innocent, are your rights really violated?

    We haven’t made Muslim/Arab detention camps like we did in WWII For the Japansese. I’d say we are doing better civil rights wise than we have in the past.

    Gonzo: “the ONLY possible use for the violations of FISA laws among other 4th and 5th amendment safeguards are for purposes other than those proposed”

    That’s a might big brush your slapping around.

    No other possible uses? That’s an ignorant statement, but you already knew that. Your smarter than that.

    The debate as to the legality of the NSA program is still undecided. There are at least as many for it, as their are against it.

    The 4th amendment provides protection against UNREASONABLE search and seizure.

    The 5th has provides due process.

    The criteria for the NSA program is very strict, and it provides for REASONABLE search of persons matching a strict criteria.

    FISA is used when ever possible, and is more than likley appiled more often than not due to the ability to get a warrent after the fact.

    However, the details of that part of the NSA program has not been made public, and IMHO should not be. It’s a classified program, and we don’t want the details to be given to the persons we are trying to catch, that would be moronic.

    As a Ex-Military, Telecom guy, you should understand that.

    If these persons are Americans, they will have due process. If they are not Americans, due process doesn’t apply as they have no consitutional protections.

  • Anonymous

    Please forgive my error the information has been abused.

  • http://blog.elfrederick.org E L Frederick

    #11 “the information has been abused.”

    When? Where? Who are the victims?

  • gonzo marx

    E.L. sez…
    *If these persons are Americans, they will have due process.*

    tell that to Padilla

    as for FISA, i’d suggest you go and lok at how many times, on the public record, the Administration has admitted to bypassing the Law, and the feeble excuses made

    no worries, i understand completely the futility of attempting to speak with the “believers”

    me…i’ll stand for the Constitution and the Bill of Rights….i don’t goive a fuck who is violating it or why

    nuff said

    Excelsior?

  • http://blog.elfrederick.org E L Frederick

    Padilla (Abdullah al-Muhajir)… your going to cite Abdullah al-Muhajir when talking about due process… your kidding right?

    Here is a guy with Al Queda connections, ties to terrorist fund raising, and an illegal enemy combatantant. Your going to use him as an example of lack of due process.

    According to the text of the ensuing decision from the 2nd U.S. Circuit Court of Appeals, President Bush’s order for Padilla’s detention as an “enemy combatant” was for these reasons:

    1. Padilla was “closely associated with al Qaeda, an international terrorist organization with which the United States is at war”;
    2. he had engaged in “war-like acts, including conduct in preparation for acts of international terrorism”;
    3. he had intelligence that could assist the United States in warding off future terrorist attacks; and
    4. he was a continuing threat to American security.

  • http://blog.elfrederick.org E L Frederick

    I reject your arguement that the Consitution or the Bill of Rights is being violated by this program.

  • anonymous

    Please lets keep the profanity to a minimum. Most of the Reps didn’t read the Patriot Act thats a fact. We do have detention camps heard of Guantanamo. The point that I’m trying to get across that during times of war civil liberties are always reduced. It’s a time that we as citizens must be extra vigilant so what we are fighting for(the preservation of our freedoms aren’t lost)

  • http://businessweek.com/technology/content/jun2006/tc20060605_901175.htm anonymous

    Just thought you’d like to read this. If the business community is worried than maybe now sanity will prevail. From what I know It was abuse of this NSA system that brought the actual program to public light. Maybe the whole story will be told sometime. God Bless

  • gonzo marx

    and for E.L.

    was Padilla a US citizen?

    yes

    no matter how much of a scumbag he is ( and i agree, he is) this still entitles him to due process under the Law

    ya see, we are funny like that, the whole “innocent until proven guilty” thing…he’s not a terrorist JUST because someone says so…it has to be fucking PROVEN in a court of Law

    so, ponder that…and i’ll stick with the Constitution, thanks much…

    Excelsior?

  • http://blog.elfrederick.org E L Frederick

    “was Padilla a US citizen?”

    I think you hit it on the nose right there… WAS he a citizen. For all we know, he renounced his citizenship. We don’t have all the details.

    Innocent until proven guilty, tell that to the Marines of Haditha who are being strug up by the liberal press.

  • gonzo marx

    first…yes Padilla is still a citizen, no legal renunciation was ever recorded, that’s part of the public record

    second- nice try at distraction….but Haditha, nor the press has anything to fucking do with this, do they?

    i get it now, another Limbaugh wanna be that cannot argue the facts with reason, nor discuss issues in a rational manner

    have fun in the kiddy pool

    /ignore

    Excelsior?

  • http://blog.elfrederick.org E L Frederick

    LOL!

  • http://businessweek.com/technology/content/jun2006/tc20060605_901175.htm anonymous

    José Padilla (also known as Abdullah al-Muhajir) (born October 18, 1970) is an American citizen of Puerto Rican descent accused of being a terrorist by the United States government. He was arrested in Chicago on May 8, 2002, and remains in detention in a military prison. For the first three years of his detention he was held without charge; he is now charged with “conspiracy to murder, kidnap, and maim people overseas.”

    Press accounts uniformly refer to this subject as Padilla and not as al-Muhajir. Some people believe there is a conspiracy to “de-Muslimify” the subject while trial is pending.

    The U.S. administration has in the past described him as an illegal enemy combatant, arguing that he was thereby not entitled to the normal protection of US law, nor protection under the Geneva Convention.
    Contents
    [hide]

    * 1 Life before imprisonment
    * 2 Arrest
    * 3 The Legal Battle over Habeas Corpus
    * 4 The Indictment: Habeas Corpus Satisfied?
    * 5 Pronunciation of name
    * 6 Padilla and John Doe 2
    * 7 External links
    * 8 Footnotes
    * 9 See also
    * 10 Timeline

    [edit]

    Life before imprisonment

    Padilla’s parents moved to the United States from Puerto Rico. He was born in Brooklyn, New York and became a member of the Maniac Latin Disciples street gang after moving to Chicago, Illinois, and being arrested several times.[1] During his gang years, he maintained several aliases, such as José Rivera, José Alicea, José Hernandez, and José Ortiz. He was convicted of aggravated assault.[2] After serving his last jail sentence, he converted to Islam and professed a nonviolent philosophy. He went to the Masjid Al-Iman mosque in Fort Lauderdale, Florida with Adham Amin Hassoun, who at that time was the registered agent for Benevolence International Foundation, a charity which U.S. investigators have accused of funding terrorist activities. Padilla and Hassoun became friends. U.S. authorities accuse Hassoun of consorting with radical Islamic fundamentalists, including Al-Qaeda. Hassoun was arrested in 2002 for overstaying his visa. [3]
    [edit]

    Arrest

    Padilla traveled to Egypt, Saudi Arabia, Afghanistan, Pakistan, and Iraq. On his return, he was arrested by federal agents at Chicago’s O’Hare International Airport on May 8, 2002, and held as a material witness on a warrant issued in the state of New York stemming from the September 11, 2001 attacks.

    On June 9, 2002, two days before District Court Judge Michael Mukasey was to issue a ruling on the validity of continuing to hold Padilla under the material witness warrant, President Bush issued an order to Secretary Rumsfeld to detain Padilla as an “enemy combatant,” and Padilla was transferred to a military brig in South Carolina without any notice to his attorney or family. The order legally justified the detention by leaning on the AUMF[4], which authorized the President to “use all necessary force against . . . such nations, organizations, or persons” and by opining that a U.S. citizen detained on U.S. soil can be classified an enemy combatant. (This opinion is based on the decision of the United States Supreme Court in the case of ex parte Quirin, a case involving the detention of a group of German-Americans working for Nazi Germany).[5]

    According to the text of the ensuing decision from the 2nd U.S. Circuit Court of Appeals, President Bush’s order for Padilla’s detention as an “enemy combatant” was for these reasons:

    1. Padilla was “closely associated with al Qaeda, an international terrorist organization with which the United States is at war”;
    2. he had engaged in “war-like acts, including conduct in preparation for acts of international terrorism”;
    3. he had intelligence that could assist the United States in warding off future terrorist attacks; and
    4. he was a continuing threat to American security.

    [edit]

    The Legal Battle over Habeas Corpus

    Because Padilla was being detained without any criminal charges being formally made against him, he, through his lawyer, made a petition for a writ of habeas corpus to the District Court for the Southern District of New York, naming Secretary Donald Rumsfeld as the respondent to this petition. The government filed a motion to dismiss the petition on the grounds that 1) Padilla’s lawyer was not a proper “Next Friend” to sign and file the petition on Padilla’s behalf, 2) Commander Marr of the South Carolina brig, and not U.S. Secretary Rumsfeld, should have been named as the respondent to the petition, and 3) the New York court lacked personal jurisdiction over the named respondent Secretary Rumsfeld who resides in Virginia. The New York District Court disagreed with the government’s arguments and dismissed its motion. However, the court further declared that President Bush had constitutional and statutory authority to designate and detain American citizens as “enemy combatants” and that Padilla was entitled to challenge his “enemy combatant” designation and detention in the course of his habeas corpus petition. Since the New York District Court had in some way disappointed all sides of this legal battle, both Padilla and the government made an interlocutory appeal to the 2nd U.S. Circuit Court of Appeals.

    On December 18, 2003, the U.S. Second Circuit Court of Appeals declared that

    * 1. Padilla’s lawyer is a proper “Next Friend” to sign and file the habeas corpus petition on Padilla’s behalf because she, as a member of the bar, had a professional duty to defend her client’s interests. Further, she had a significant attorney-client relationship with Padilla and far from being some zealous “intruder” or “uninvited meddler”.

    * 2. Secretary Rumsfeld can be named as the respondent to Padilla’s habeas corpus petition, even though it is South Carolina’s Commander Marr who had immediate physical custody of Padilla, because there have been past cases where national-level officials have been named as respondents to such petitions.

    * 3. The New York District Court had personal jurisdiction over Secretary Rumsfeld even though Rumsfeld resides in Virginia and not New York because New York’s “long arm statute” is applicable to Secretary Rumsfeld, who was responsible for Padilla’s physical transfer from New York to South Carolina.

    * 4. Despite the legal precedent set by ex parte Quirin, “the President lacked inherent constitutional authority as Commander-in-Chief to detain American citizens on American soil outside a zone of combat”. The 2nd Circuit Court relied on the case of Youngstown Sheet & Tube Co. v. Sawyer (343 U.S. 579), where the U.S. Supreme Court had ruled that President Truman, during the Korean War years, could not use his position and power as Commander-in-Chief, created under Article 2, Section 2 of the U.S. Constitution, to seize the nation’s steel mills on the eve of a nation-wide steelworkers’ strike. The extraordinary government power to curb civil rights and liberties during crisis periods, such as times of war, lies with Congress and not the President. Article 1, Section 9, Clause 2 of the U.S. Constitution grants Congress, and not the President, with the power to suspend the right of habeas corpus during a period of rebellion or invasion.

    Without clear Congressional approval (per 18 U.S.C. § 4001(a)), President Bush cannot detain an American citizen as an “illegal enemy combatant” and the court ordered that Padilla be released from the military brig within 30 days[6]. However, the court had stayed the release order pending the government’s appeal to the U.S. Supreme Court.

    On February 20, 2004, the Supreme Court agreed to hear the government’s appeal. The Supreme Court heard the case, Rumsfeld v. Padilla, in April 2004, but on June 28, 2004, the court dismissed the petition on technical grounds: First, it was improperly filed in federal court in New York instead of South Carolina, where Padilla was actually being detained. Second, the Court held that the petition was incorrect in naming the Secretary of Defense as the respondent instead the Commanding Officer of the naval brig who was Padilla’s actual custodian for habeas corpus purposes.

    The case was refiled and a decision in Padilla’s favor was issued in the Federal District Court for South Carolina. On June 13, 2005, the U.S. Supreme Court denied the government’s petition to have his case heard directly by the court, instead of the appeal being first heard by the 4th U.S. Circuit Court of Appeals in Richmond, Virginia.

    On September 9, 2005, a three-judge panel of the 4th U.S. Circuit Court of Appeals ruled that President Bush does indeed have the authority to detain Padilla without charges, in an opinion written by judge J. Michael Luttig. In the ruling, Luttig cited the joint resolution by Congress authorizing military action following the September 11, 2001 attacks, attacks in New York City, as well as the June 2004 ruling concerning Yaser Hamdi. Attorneys for Padilla, plus a host of civil liberties organizations, blasted the detention as illegal. They said it could lead to the military holding anyone, from protesters to people who check out what the government considers the wrong books from the library. The Bush Administration denied the allegations.

    But as the Congressional military authorization [7] pertained only to nations, organizations or persons whom the President “determines planned, authorized, committed, or aided the September 11, 2001 attacks, or harbored such organizations or persons”, others argue that this kind of Congressional limitation to the military power would assure an appropriately narrow range of detainees and the power to detain would last only so long as the Congressional authorization was not revoked or remained in effect by its terms. Also the Yaser Hamdi Supreme Court case (Hamdi v. Rumsfeld) upon which the court relied requires a habeas corpus hearing for any alleged enemy combatant who demands one, claiming not to be such a combatant, which would also place additional judicial or perhaps military tribunal oversight over each such detention.
    [edit]

    The Indictment: Habeas Corpus Satisfied?

    On November 22, 2005, CNN’s front page broke the news that Padilla had finally been indicted on charges he “conspired to murder, kidnap and maim people overseas.” [8] Many news sources correlated the indictment’s timing as avoidance of an impending Supreme Court hearing on the Padilla case: “the administration is seeking to avoid a Supreme Court showdown over the issue”. [9] [10] [11] None of the original allegations put forward by the U.S. government three years ago, the claims that held Padilla in the majority in solitary confinement throughout that period, were part of the indictment: “Attorney General Alberto Gonzales announced Padilla is being removed from military custody and charged with a series of crimes” and “There is no mention in the indictment of Padilla’s alleged plot to use a dirty bomb in the United States. There is also no mention that Padilla ever planned to stage any attacks inside the country. And there is no direct mention of Al-Qaeda. Instead the indictment lays out a case involving five men who helped raise money and recruit volunteers in the 1990s to go overseas to countries including Chechnya, Bosnia, Somalia and Kosovo. Padilla, in fact, appears to play a minor role in the conspiracy. He is accused of going to a jihad training camp in Afghanistan but the indictment offers no evidence he ever engaged in terrorist activity.” [12] [13] Considering Padilla was held for years in military custody with no formal charges brought, many were shocked by this move by the George W. Bush presidential administration [14] [15] [16] [17], and some reasoned [18] that a repeat of such a process would allow the U.S. government to detain citizens indefinitely without presenting the cause that would eventually be tried. A transfer to civilian court was denied the U.S. Administration by a federal appeals court in December 2005. The court recognized “shifting tactics in the case threatens [the government's] credibility with the courts”. [19] This was countered by Solicitor General Paul Clement: the federal appeals court decision “defies both law and logic,” he stated in a request to the Supreme Court for immediate transfer on December 30, 2005, [20] one day after Padilla’s lawyers filed a petition of their own charging the U.S. President of overstepping his authority. [21]

    On January 3, 2006, the United States Supreme Court granted a Bush administration request to transfer Padilla from military to civilian custody.[22] Padilla will be transferred to federal prison in Miami from the Navy brig in Charleston while the Supreme Court decides whether to accept his appeal of the government’s authority to keep citizens it designates “enemy combatants” in open-ended military confinement without benefit of trial. [23] He plead not guilty to the charges issued in Miami.

    On April 3, 2006, the U.S. Supreme Court declined, with three justices dissenting from denial of cert, to hear Padilla’s appeal from the 4th Circuit Court’s decision that the President had the power to designate him and detain him as an “enemy combatant” without charges and with disregard to habeas corpus.
    [edit]

    Pronunciation of name

    According to his attorney and others, Padilla has changed the pronunciation of his family name from the typical puh-de-yah (with the ll vocalized as /ʎ/, as in quesadilla and other Spanish words and names) to puh-DILL-uh. [24] [25]
    [edit]

    Padilla and John Doe 2

    Several websites promoting what most observers consider to be conspiracy theories including whatreallyhappened.com have pointed to a supposed uncanny resemblance between Padilla and police sketches of an Oklahoma City Bombing suspect known as “John Doe No. 2″ These sites claim he was likely a CIA agent and that the fact he is being held as an enemy combatant is part of a cover up of his involvement in the Oklahoma City bombings while a CIA agent. [26] Others, such as talk radio host Glenn Beck, suggest the theory Padilla was “John Doe No. 2″ and that he was involved with the plot at Oklahoma City. [27]

  • http://businessweek.com/technology/content/jun2006/tc20060605_901175.htm anonymous

    Keeping an Eye on the Snoops
    With government eavesdropping getting more aggressive, privacy safeguards need to be beefed up By Otis Port
    In recent months, the National Security Agency and the Bush Administration have been taking increasing heat for bending the rules in the hunt for terrorists. Instead of focusing almost exclusively on collecting foreign intelligence, as it has done historically, the hush-hush NSA is turning its electronic ears on U.S. communications.

    The controversy turned white-hot in May, when USA Today identified three major phone companies that are allegedly cooperating with the NSA in an effort to sift through the phone records of millions of Americans. The companies — AT&T (T), BellSouth (BLS), and Verizon (VZ) — all deny that they are illegally providing NSA with information.

    Now, the Administration is pushing for access to more Web-surfing records. On June 2, government officials met with representatives from Verizon, Google (GOOG), Microsoft (MSFT), and others to persuade the companies to retain the records of people’s Internet activities for as long as two years. The companies, which now hold onto that data for a few weeks or months, are continuing discussions with the Administration on the issue, says one source from a company involved.

    In the end, though, all the fuss is much ado about not very much — at least for longtime watchers of NSA, an arm of the Pentagon created to dig up foreign intelligence. NSA’s trespassing in U.S. communications has been a cause célèbre before. The last time was when President Richard Nixon bugged his political opponents during the infamous Watergate era. That led, not only to Nixon’s downfall, but also to some severe restrictions to ensure that NSA respects the privacy rights enshrined in the Constitution.

    ANTI-TERRORISM RATIONALE. Of course, anticipating that an occupant of the White House would claim such rights can be ignored during a war on terrorism was as unforeseeable as the tragedy of September 11. The Administration’s aggressive pursuit of terrorists is commendable, but its conduct with respect to privacy certainly merits intense scrutiny (see BW Online, 05/29/06, “The Spying Goes Beyond Snooping”).

    Still, even if NSA were getting help from some phone companies, it’s not like NSA has never had access to this information. Before the Internet boom in the 1990s, NSA’s worldwide network for monitoring electronic communications routinely scooped up called and calling numbers in long-distance phone traffic, plus the voice or data content. That’s because the calls often went airborne at some point, traveling between microwave towers or satellite relays — and any wireless signal is a snap for NSA to intercept.

    In fact, it would be difficult for NSA’s network to avoid picking up such wireless communications. Air Force General Michael Hayden — President George Bush’s pick for the next director of the Central Intelligence Agency and currently the Pentagon’s top intelligence officer — conceded as much in January. He said NSA “inevitably captures” domestic traffic” in the normal course of foreign intelligence activities.”

    SOPHISTICATED SPREADSHEETS. NSA won’t say if it ever whipped up a database of dialing and dialed numbers to hunt for recurring links that might point to bad guys in the U.S. But it’s doubtful. Sophisticated data-mining software is a fairly recent development, and intelligence experts believe that since the mid-1970s, NSA has kept its nose clean inside the U.S. So getting spreadsheets from telephone companies with neatly arranged numbers, as has been alleged, would save a lot of time.

    Besides, NSA might not have many other options today. Since the U.S. binged on fiber-optic cables, the volume of domestic calls making a wireless hop has plummeted. The change is so dramatic that it has been offset only partly by the growth of cellular-phone use.

    NSA could dispatch spooks to tap the fiber-optic cables. That’s tough — but not impossible, as is sometimes asserted. The U.S. Navy has built at least two special submarines that install taps on fiber-optic cables at sea. The latest is the USS Jimmy Carter, which entered service last year. But physical taps on telecom cables on U.S. soil would surely be spotted, sooner rather than later.

    CLASS ACTION FILED. That may explain the arrangement that has outraged privacy stalwarts at the Electronic Frontier Foundation (EFF). A former AT&T technician gave the San Francisco group internal company documents, which purportedly describe secret, NSA-staffed rooms inside AT&T switching centers that could be used to monitor phone calls and e-mail. According to a lawsuit EFF has filed, a so-called splitter, or tap, on fiber-optic cables runs into the secret rooms, providing NSA with access to all Internet and voice traffic flowing through that center. The EFF class action, filed in January, seeks to stop AT&T from providing the NSA with access to its network.

    AT&T said in a statement that its customers have “nothing less than our fullest commitment to their privacy,” though the company also has “an obligation to assist law enforcement and other government agencies responsible for protecting the public welfare.” It declined to comment beyond the statement.

    To justify its more aggressive approach, the White House cooked up some unusual arguments. Basically, the Administration contends that the commander-in-chief powers conferred by the Constitution, plus the 2001 congressional resolution approving the use of military force in the war on terror, provide the legal grounds for President Bush to authorize the NSA to ignore the requirement for a warrant when bugging Americans.

    LIFE DURING WARTIME? Initially, the White House claimed this applied only to communications between an American and a suspected terrorist or al Qaeda supporter who was outside U.S. borders. Under those conditions, said Attorney General Alberto Gonzales, warrantless bugging was O.K., because monitoring international communications is a normal part of waging war.

    When the charge of data-mining of purely domestic calling records came to light, the Justice Dept. retorted that NSA needed a warrant only if the phone companies identified their customers. Since the data didn’t include actual customer names, just phone numbers, no warrant was required. It’s clear why the Administration felt backed into a corner. Under the Foreign Intelligence Surveillance Act (FISA), NSA can get a domestic warrant only if the agency can convince a judge there’s good reason to suspect a person is involved in terrorism, espionage, or drug smuggling. FISA permits surveillance without a warrant for up to 72 hours if there’s a reasonable suspicion of gathering enough evidence for a warrant within that period of time.

    But that extra latitude is of little help in sifting through millions of phone records. The chance of finding a hint of terrorism in a real-time search of call data for any 72-hour period is less likely than winning the lottery. So attesting to reasonable suspicion would be a huge stretch. Besides, NSA can’t specify which phones it wants to tap until after the numbers have gone through the data-mining mill.

    Some lawmakers, lawyers, and intelligence experts buy the Administration’s position — as a wartime measure. Others don’t. To critics, the White House is flat-out breaking the law. The harsher detractors charge that current policies, left unchallenged by Congress, could end up permanently distorting the Constitution’s framework of checks and balances.

    PAST ABUSES. “The constitutional theory under which they’ve justified this is monstrous,” declares John E. Pike, president of GlobalSecurity.org and a longtime NSA watcher. It means that during a war, a President “can do whatever he wants, notwithstanding existing laws and regulations. If he doesn’t like the way a law has been interpreted historically, or considers it inconvenient,” says Pike, “he can just ignore it.”

    Even a former NSA chief, retired Admiral Bobby Ray Inman, has slammed the Bush team’s rationale for no-warrant spying. Inman doesn’t quibble with suspending FISA’s rules temporarily, while NSA and other federal agencies scrambled to detect the second terrorist attack that many officials feared might follow on the heels of September 11.

    But more than four years later, Inman figures the Administration should have asked Congress to update FISA and “deal with problems I didn’t think of in ’78.” While he headed NSA from 1977 to 1981, Inman lobbied hard for the Foreign Intelligence Surveillance Act of 1978.

    CELLULAR OPPORTUNITY. FISA was largely a reaction to past abuses of NSA’s eavesdropping powers, particularly by President Nixon. He bugged scores of political enemies and antiwar activists such as Jane Fonda and Dr. Benjamin Spock.

    NSA now poses a much more serious potential danger, because of the popularity of cellular phones and the Internet — and not just in the U.S. NSA leads a collaboration of its counterparts in Britain, Canada, Australia, and New Zealand. For more than five decades, these cohorts have been operating a worldwide surveillance network known as Echelon.

    Early on, Echelon’s ears had a fairly easy task: just listening to radio signals. Oceans weren’t spanned by copper phone cables until 1956, and commercial satellite communications emerged almost two decades after that. So radio was the workhorse. It carried encrypted military and diplomatic messages along with ordinary voice, telex, and telegraph traffic.

    Today, NSA wields awesome power. It can eavesdrop on all wireless signals and fiber-optic cables that dip into a sea. Those two routes account for most communications outside the U.S. — a lot of Europe’s internal Internet traffic is actually shuttled to U.S. switching centers.

    COMPUTER SCREENING. Pike and other experts believe that NSA bends over backwards to protect the identities of Americans, as its regulations require. First, NSA analysts inspect just a tiny fraction of e-mails and phone messages — otherwise, NSA would need to employ every adult in the U.S. and then some. Computers do the initial screening. If someone in Chicago sends an e-mail to a relative in Afghanistan, and it triggers an alert, the Chicagoan’s name is automatically replaced by an anonymous label such as “U.S. Person #1.” Then it gets bounced to an NSA analyst for a look-see.

    If the analyst decides the Chicagoan merits investigation by the FBI, restoring the person’s name requires a FISA warrant. Otherwise, the intercept is dumped, along with the 99.999% of traffic that never gets seen by human eyes because it isn’t kicked out by the computer filters.

    However, a rogue NSA official could easily bypass the ban on snooping on Americans: Just ask one of its Echelon partners to do the dirty work. To them, Americans are foreigners and thus fair game.

    HELPFUL PARTNERS. Such requests may be the exception, but they happen. And Nixon isn’t the only chief of state to abuse Echelon. In 1983, Prime Minister Margaret Thatcher asked Britain’s General Communications Headquarters (GCHQ) — it runs Echelon’s biggest eavesdropping facility — to bug two of her cabinet ministers. That would have violated British privacy laws, so GCHQ handed the job to Canada’s Communications Security Establishment (CSE), according to E. Michael Frost, a former CSE deputy director.

    There’s a crying need for better privacy safeguards that reflect today’s world — and mirror a consensus among America’s gadget-happy, cell-phone addicts whose daily chats and text messages are grist for Echelon’s computers. The Bush Administration shows no inclination to get the ball rolling, so the effort may have to wait until after the next Presidential election.

    Two key questions are clear: Should FISA rules be changed to allow NSA to conduct needle-in-the-haystack data-mining searches, and if so, under what circumstances? Or would Americans prefer to slap much stricter limits on NSA’s ability to poke its nose into domestic communications, even if that might increase the risk of terrorist attacks or hamper the battle against drug smuggling

  • Bliffle

    “Another point I would make, is that we do not have a very loose set of rules for the NSA to work from. There is a very strict set of criteria that the NSA must work from in order to listen into phone calls.”

    And what ARE those rules? Where can I read the legislation? Or do I only have the (proven unreliable) word of administration people?

  • http://businessweek.com/technology/content/jun2006/tc20060605_901175.htm anonymous

    The Snooping Goes Beyond Phone Calls
    How the government sidesteps the Privacy Act by purchasing commercial data

    Furor and confusion over allegations that major phone companies have surrendered customer calling records to the National Security Agency continue to roil Washington. But if AT&T Inc. (T ) and possibly others have turned over records to the NSA, the phone giants represent only one of many commercial sources of personal data that the government seeks to “mine” for evidence of terrorist plots and other threats.

    The Departments of Justice, State, and Homeland Security spend millions annually to buy commercial databases that track Americans’ finances, phone numbers, and biographical information, according to a report last month by the U.S. Government Accountability Office, the investigative arm of Congress. Often, the agencies and their contractors don’t ensure the data’s accuracy, the GAO found.

    Buying commercially collected data allows the government to dodge certain privacy rules. The Privacy Act of 1974 restricts how federal agencies may use such information and requires disclosure of what the government is doing with it. But the law applies only when the government is doing the data collecting.

    “Grabbing data wholesale from the private sector is the way agencies are getting around the requirements of the Privacy Act and the Fourth Amendment,” says Jim Harper, director of information policy studies at the libertarian Cato Institute in Washington and a member of the Homeland Security Dept.’s Data Privacy & Integrity Advisory Committee.

    The Justice Dept. alone, which includes the FBI, spent $19 million in fiscal 2005 to obtain commercially gathered names, addresses, phone numbers, and other data, according to the GAO. The Justice Dept. obeys the Privacy Act and “protects information that might personally identify an individual,” a spokesman says. Despite the GAO’s findings, a Homeland Security spokesman denies that his agency purchases consumer records from private companies. The State Dept. didn’t respond to requests for comment.

    A number of lawmakers from both parties are calling for investigations of the role of phone companies and the NSA in domestic surveillance. BellSouth Corp. (BLS ) and Verizon Communications (VZ ) have denied turning over bulk call records to the agency, although their carefully worded statements contained some ambiguities. AT&T said that when it helps the government, it does so strictly within the law. On May 11, USA Today reported that the three telecom titans cooperated with NSA surveillance efforts.

    But in the face of the uproar over the issue, others on Capitol Hill are pushing for more government data collection. House Judiciary Committee Chairman F. James Sensenbrenner (R-Wis.) is drafting legislation to require ISPs to amass information about users’ Web-surfing habits to assist government investigations. Executives at companies that fail to comply could be subject to up to a year in prison.

    Other players in the information world that could get more attention in coming days are little-known firms that help telecom industry clients comply with government investigations. That’s a small part of what a company called NeuStar Inc. (NSR ) does.

    INCREASED PRESSURE
    Based in Sterling, Va., NeuStar has developed a lucrative niche in the routing of millions of phone calls a day from one carrier to the next. “Nearly every telephone call placed is routed using NeuStar’s system, and every telecommunications service provider is one of NeuStar’s customers,” the company’s Web site states. NeuStar doesn’t keep records of the calls it handles, a spokeswoman says.

    Now NeuStar is seeking to profit from increased post-September 11 government pressure on telecoms to turn over data. Last year it acquired Fiducianet Inc., which helps phone company clients comply with “subpoenas, court orders, and law enforcement agency requests under electronic surveillance laws,” according to a February, 2005, NeuStar press release. NeuStar says this part of its business accounts for less than 1% of total revenue. The company went public last June and reported 2005 revenue of $242.5 million.

    NeuStar also provides services to federal agencies, but CEO Jeff Ganek says it hasn’t done so for the NSA. The company has “absolutely nothing to do with any of the surveillance that’s currently being discussed on Capitol Hill,” Ganek stresses. All told, government contracts provide less than 2% of NeuStar’s revenue, the company spokeswoman says. Government agencies sometimes seek NeuStar’s help in identifying phone carriers that investigators plan to subpoena, she says, adding, “We do not provide any other information.”

  • Bliffle

    I’ll repeat the conclusion I drew after reading your article detailing the evasive techniques available to terrorists:

    “Therefore, if the NSA/CIA cannot successfully spy on terrorists, the only plausible target of their spying is ordinary unsuspecting citizens!”

  • http://blog.elfrederick.org E L Frederick

    Biffle “Therefore, if the NSA/CIA cannot successfully spy on terrorists, the only plausible target of their spying is ordinary unsuspecting citizens!”

    Your use of the word “cannot” is what makes your statement inacurate. I never said that they CANNOT. I just pointed out the difficulty of what they are doing.

    The NSA couldn’t care less about ordinary unsuspecting citizens. Why would they?

    If they are spying on me, my boring little life would bore them to tears. Any “ordinary citizen” who thinks they are SOOO important that they have the goverment breathing on the other end of the phone needs to be on meds for paranoia.

    What kind of an arrogant nutcase do you have to be in order to think that you, joe blow, are so important that the NSA is watching you. *Whatever*

    Unless you make oversea phone calls to terrorists, or to the middle-east on a regular basis, Muslim or not, you SHOULD have you calls monitored to protect your own back IF you are innocent.

    If I regularly called my friends back in Iraq, I’d WANT the NSA listening on my calls just so they could conclude that I wasn’t a terrorist.

  • Bliffle

    EFred: “Your use of the word “cannot” is what makes your statement inacurate. I never said that they CANNOT. I just pointed out the difficulty of what they are doing.”

    OK, then I will say “CANNOT”. Because that is the fact: if two people want to have a communication link that spies CANNOT spy on, that is possible. It isn’t even hard. People do it every day, right now, and they have been for years. Any dufus can do the same with a simple combination of PGP and steganography. In fact, successfully non-breakable systems have existed for decades.

    “The NSA couldn’t care less about ordinary unsuspecting citizens. Why would they?”

    To blackmail them. Or to contrive evidence against them. This was common practice in communist Russia. Surely you’ve read the books? Before that it was common practice in Czarist Russia. In fact, it’s existed in society throughout history.

    Surely you remember Watergate, and Nixon, and using IRS records against political enemies.

    Any federal agency with power to spy on and manipulate people is subject to abuse by partisan politicians.

    You may SAY that you have nothing to hide (this makes a brave front for asserting your general innocence and purity of heart) but you know upon reflection that if everything were known about your life and your affairs that a damning case could be made. Ask any russian who survived the Stalin or Kruschev years. Even people who thought themselves so small and unimportant as to escape notice would find themselves persecuted by low-level officials and bosses who knew things that

  • http://blog.elfrederick.org E L Frederick

    Bliffle, thanks for making my point about needing medication. Next time you put on the tinfoil hat, you need to check the elastic, it might be cutting off the circulation.

    Also, you do know that tinfoil is a conductor, and won’t do anything to shield you from the “mind control rays”… right?

  • http://www.elitistpig.com Dave Nalle

    Anonymous, if you wrote under your own name like many of us and broke your endless posts up into smaller, relevant sections, then people might actually pay attention to the semi-loony points you may have to make.

    Dave

  • http://www.elitistpig.com Dave Nalle

    E. L. the tinfoil hats work because the mind rays use light waves which can be reflected by it.

    Dave

  • http://blog.elfrederick.org E L Frederick

    light waves ‘eh… must be a line of sight thing.

  • JR

    No, it’s a wavelength thing.

  • anonymous

    I’ll let Business Week speak for me. Hardly a leftwing paranoid rag. If the System was fool proof I wouldn’t care less. However It seems to be quite a large net to cast. Every call Is cross referenced, catalogued for how long. Sorry I’ll let history and businessweek speak for me. Those who don’t learn from it are doomed to repeat it.

  • Bliffle

    Fred and Dave: You don’t need your tinfoil hats to dope out this syllogism, so there’s no need to exchange arcane lore about such matters.

    It’s very simple: if terrorists are determined to exchange information it is a simple matter to establish a secure communications link impervious to the spying of the NSA.

    Therefore, the spying of the NSA can only be intended for the unsuspecting who have not taken the precaution of establishing secure links.

  • JR

    Well, I’ll defend the NSA (sort of).

    Smart criminals have been known to evade the law, however cops still manage to catch a lot of dumb ones. Maybe it’ll work the same with terrorists.

    Also, just because the program won’t do what it’s ostensibly intended to do doesn’t mean it was actually intended for something else. It may be that the NSA doesn’t know it won’t work, or that they wish to be seen doing something, whether or not it will work.

    I have no doubt that domestic spying techniques will eventually be used against U.S. citizens for political and/or criminal purposes; I just don’t know for sure it’s what they intend to do from the outset.

  • Big Jibs

    The National Security Agency needs to be
    catching criminals and terrorists while
    talking their conversations and reporting
    it to the authorities so they can arrest.