Thanks, Team Obama:
The Obama administration is seeking to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
The administration wants to add just four words — “electronic communication transactional records” — to a list of items that the law says the FBI may demand without a judge’s approval. Government lawyers say this category of information includes the addresses to which an Internet user sends e-mail; the times and dates e-mail was sent and received; and possibly a user’s browser history. It does not include, the lawyers hasten to point out, the “content” of e-mail or other Internet communication.
People seem to forget that a lot of the crap in the Patriot Act originally was proposed by the Clinton administration, and Republicans back then were wary of letting Democrats have that kind of power (a lot of it was also that they were just like today’s GOP and just opposed anything Clinton suggested). 9/11 changed all that. Now that both parties are essentially weak-kneed pansies who faint if someone so much as whispers the word “terrorism” anywhere near them, it is impossible to think of a situation in which any administration, Republican or Democratic, can not just say national security and get whatever they want. And, as we’ve learned, even if they don’t get what they want, they’ll do it anyway, and the next administration will just “look forward, not backwards.” Unless you’re a whistleblower.
Back to the substance of the issue- wtf is so hard about getting a damned warrant?
Hugin & Munin
Fuck you and your pony-lust Cole.
Hunter Gathers
Along with 80% of the population.
Zifnab
I’m a little torn on this. Can the FBI get phone logs without a court order? I would consider “who you called” and “who you emailed” to be roughly equivalent.
At a certain point, the police need to be able to investigate an individual or follow up on a situation without rushing off to the judge for every little thing. Imagine, for instance, you’ve got a group of individuals that are planning on robbing a bank. They all communicate via email. You don’t know how big the bank robbery ring is, but you would like to know who robber A is emailing. Then you’ll need to know if robber A’s email is being forwarded from recipient B onto a third guy C.
Assuming you got a warrant for robber A, do you have to get warrants for everyone else on robber A’s contact list? That could be hundreds – thousands – of people. What judge is going to issue warrants off the cc: field of a bulk email, much less a full contact list? Every guy after robber A faces the same exploding problem.
You’d be writing warrants for half the internet by the time you were done.
NonyNony
To get a warrant you need probable cause. If you’re on a fishing expedition, you don’t have probable cause.
If they can get all that information without a warrant, they can just get a feed from the telcos with that information, plug it into their machine learning algorithms, and find people who might be suspicious to watch for further investigation. The reason they can’t get a warrant is because they don’t have a suspect – they’re fishing for suspects that match whatever profile they’ve built up and they want to troll through all that data to find them.
It’s bullshit, but it’ll probably pass because the standard mantra of “if you have nothing to hide you have nothing to fear” applies. Of course, in the hands of an unscrupulous head of the FBI the ability to see every website ever visted by a Congress-critter and the recipients and senders of all the e-mail that Congress-critter gets would be an amazing amount of blackmail leverage. Fortunately the FBI has never been headed by anyone who was that unscrupulous and there has never been anyone at the helm of it that would ever have sought to use material like that to blackmail members of the legislative branch…
wilfred
So? Show me where Obama said that he would not seek to make it easier for the FBI to compel companies to turn over records of an individual’s Internet activity without a court order if agents deem the information relevant to a terrorism or intelligence investigation.
Show me where he said he wouldn’t seek that.
BR
Who do we call to make sure this doesn’t happen?
joe from Lowell
Think of a letter you mail. What’s written on the envelope, vs. what’s written on the pages inside the envelope.
The cops get to look at the envelope, but they don’t get to open it and read the letter without a warrant.
This seems to be the same principle.
Bill E Pilgrim
Yeah I finally figured out that “change” was meant in the “nickel and dime stuff” sense.
The big ticket items, not so different.
Okay got it now.
@wilfred:
If that’s snark, it’s brilliant. If it’s not, it might as well be.
Keith G
Basic observation and simple logic inform me that Barak Obama is a zillion times (maybe a bit high) better than any other realistic alternative.
But I entered my teen years with the Kent State killings and all that followed. I may not be a total civil liberties purest, but I am damn close.
This line of bullshit decision making on his part really angers me. Writing emails will do little. Withholding my vote may well be self-destructive, but I am running out of options.
Principles matter.
General Stuck
Fear is the mind killer. And Obama’s fear is that if he doesn’t do shit like this and something bad happens he would be accused of going soft of national security. It is the bane of dems, mostly all of them, that wingnuts have painted them with the weak brush on national defense.
Hillary would have been the same, and just about every other dem if they became president. It is cowardly imo, and Obama on this one is wrong. There has to be warrant of some kind issued from a judge before the government goes rummaging through personal “papers” and “letters”, or now computer files, the constitution requires it in pretty plain English. It can be expedited to fit the situation, but it needs to occur.
Both the Patriot Act and the soon to sunset again FISA laws are much better than their original versions, but still not near good enough. The founders created the judicial branch as a neutral watchdog over the Executive Branch for a very good reason, and now letting the Executive Branch make such decisions from inherent conflicts of interest is unnfuckingacceptable.
LGRooney
Sorry, JC, but their signing off on the PATRIOT Act had more to do with the fact that the GOP was simply ready to follow whatever their leadership told them was necessary. Democratic leadership shiveringly bowed before the name and the flag waving and no one actually had time to read the damned thing because they were still coming to get us and we had to sign over our freedom for big borther’s security fast.
eemom
Meet the new boss. Same as the old boss.
Mithras
There is longstanding precedent that business records of your dealings with that business deserve less protection than, say, your “person, house, papers and effects”, so a warrant is not required to get them. Cops can go into a business and demand sales information to see if anyone bought bomb-making materials, for example, and they don’t need a warrant, they just need the business owner’s consent. This is because the records belong to the business and the individual customer has no reasonable expectation that others will not know the content of those records, since he or she knows the employees of the business have access to those records.
Having said that, NSLs are ripe for abuse because (a) there is no judge involved at all and (b) the target of the search is never informed of it and the business which receives the NSL is under a permanent (!) gag order never to disclose it. So, I don’t think a warrant is required for business records searches, but there should be a tighter standard on these investigations. The most important thing is the secrecy. There should be a presumption that the target of the NSL (as soon as there is a target) should be notified of it and the recipient of an NSL should be free to speak about it, unless the government can show a (presumably, FISA) judge compelling evidence to the contrary.
Keith G
@joe from Lowell:
But there is this
That seems to be quite a new reach.
Nick
meh, I gave up on issues of national security after my college campus had a rally FOR torture that was attended by over 1500 people.
People want a police state, they’ll get it somehow, so might as well have someone we (remotely) trust running it IMO.
Church Lady
I’m so proud to have my immortal words appear today on the blog banner.
Mary
@Mithras: Just wanted to agree with your post. Businesses are, for the most part, monitoring their employees web habits anyway. If you want certain things to be private, you should do them on your home computer.
But I also agree on the secrecy issue.
So, basically I agree with everything you said.
Leisureguy
My understanding is that getting a warrant is fairly easy if you have a valid reason. The problem is in getting a warrant just because you don’t like the guy or think he’s weird or some other vague reason. That’s why the FBI wants to by-pass getting a warrant: they are interested in people who are not mainstream, but that’s not sufficient to be evidence of a crime.
El Cid
Honestly, what does it matter to even discuss any Obama administration violation of civil liberties or of due process? Who would possibly do anything about it? Such complaints will receive either silence or questioning whether you’d prefer Sarah Palin instead.
General Stuck
@Nick:
This is the sad part. No doubt most Americans won’t give it a second thought, so for Obama there is little political cost. What a country full of intellectually lazy and apathetic dweebs that takes for granted their freedoms.
scav
getting a warrant slows down the dramatic flow and means you don’t get to the beating before the commercial break.
some other guy
Wait, now I’m confused. I thought we were mocking liberals for “hurt fee-fees” on civil liberties here at Balloon Juice? After all, HCR and FinReg should be more than enough to satisfy any reasonable Democrat!
joe from Lowell
@Keith G:
I don’t know. It’s still not the content of private communications, but the addresses to which they may have been sent. It is a novel situation that requires some thought to apply the old principles.
@Mary:
In this case, the “businesses” in question are the Internet Service Providers, not somebody’s employer or the owners of an internet cafe. So the question becomes, is your relationship with your ISP like the relationship between a client and a customer, or like a librarian and a patron?
The Moar You Know
@BR: Just shout into the nearest phone, or type it onto the nearest computer.
You’ll be heard.
BR
Maybe this is the right place to mention – I’ve been working on an open source project to do secure file sharing between individuals, without having to trust any centralized servers or anything.
Basically the software allows you to share files with friends, family, whoever, and designate exactly who has what access to what. The program automatically keeps those folders on your computer in sync with the others you’re sharing with. It’s designed with a serious amount of cryptography and with preventing this sort of snooping.
I’ll let everyone here know when I’ve released the first version.
NonyNony
@General Stuck:
Argh. No. This is emphatically not true. If it were true then Democrats would be working their asses off behind the scenes to change the narrative. And they don’t because as a political party the Democrats are not an anti-war party and never have been. They are a National Security Party and have been since FDR at least. The Democratic Party is the party of WWII, Korea, and Vietnam. Democrats don’t cheerlead wars because they’re afraid of their political opposition – they cheerlead wars because a significant fraction of the Democratic Party are hawks who believe that the wars they’re cheerleading are “good wars” that need to be fought. The same with this civil liberties crap – Cole rightly points out that the stuff in the PATRIOT Act started with Clinton. He and his justice department wanted those powers and couldn’t get them because Republicans opposed everything he did. The Department of Homeland Security was a Democratic idea – if it wasn’t Joe Lieberman’s brainchild he was at least its biggest champion.
Obama is one of these Democrats and he told us all this from the beginning. He told us that he was against Iraq not because he was anti-war but because he was against “stupid” wars. To people who think all wars are stupid that sounds like an anti-war statement. But Obama, and Clinton, and a good-sized chunk of the Democrats in Congress don’t think that way and never have.
This is true – but not because they’re afraid. It’s because they’re legitimate hawks when it comes to national security and the national security state. They believe this stuff is the right thing to do, they don’t just do this stuff to win elections. Only a handful of Dems are not firm believers in the national security state – and most of them are treated as jokes when they run for national office because of it.
joe from Lowell
The discussion on this thread is pathetic.
“ZOMG, police state!”
Knees jerking in ignorance. There are actual, debatable questions here, and I don’t see even the slightest awareness among 90% of the critics here of what they even are.
Rommie
I was listening to an old FBI radio show on SIRIUS yesterday from the 50’s. (The channel itself is pretty cool, I love to listed to old radio shows in general)
At the end of the show, they have a comment from the announcer that the listeners may be wondering why the FBI investigators didn’t just barge into the houses to search for the suspect. The announcer goes on to say that the homeowners have rights to privacy, and the FBI operates with respect to the law. Because it’s the FBI way – BECAUSE IT’S THE AMERICAN WAY.
How quaint those primitive rubes were back then.
batgirl
@Mary: Because as we know everyone has a home computer. And if you don’t, well sorry, the government can come into the public library, no warrant, and demand to see your Internet history, and the library can’t even tell anyone about it.
Freedom!
joe from Lowell
This isn’t “bursting into a house,” Rommie.
It’s more like watching a house from the street to see who’s coming and going – which has never, ever required a warrant.
joe from Lowell
Nope.
Knees jerking in ignorance.
Brachiator
@Zifnab:
Don’t the cops have to get approval for a wiretap if the group is talking to each other on the phone? Don’t they even have to get prior approval to get access to phone logs?
@joe from Lowell:
Do the cops currently have the right to stand outside your house and intercept a mail carrier and look at what’s written on the envelopes of mail that you receive? If you were handing a postal carrier letters, could the cops ask to see them first? Even if you leave mail to be picked up, do the cops have the legal right to look at the envelopes?
@General Stuck:
It’s odd. Some conservatives bray about keeping the government small and off their backs (or is it just out their pockets) and yet they just love to roll over for authority.
Everybody sing The Ain’t No Right to Privacy Rag!
If you have nothing to fear, then you have nothing to hide.
Nick
@Brachiator:
They’re hypocrites, this isn’t news to anyone here.
Zifnab
@NonyNony:
Elected reps tend to have an extra level of insulation from police probing. Look back through the William Jefferson $90k freezer case and you’ll see how hard it is to nail a crooked pol, just because you have to jump through so many hoops to get any kind of evidence on him.
That said, the head of the Sierra Club or the ACLU does not receive that level of insulation. For that matter, neither does some climate scientist doing work on global warming.
I’m not saying the power couldn’t be abused, but if you put a guy in charge of the FBI, he’s going to have a lot of authority that he is free to abuse unchecked. The only way to prevent the police from being abused is to see that good executives are elected to office. Saying, “Oh but the FBI could do terrible things if run by a terrible man!” doesn’t make or break a case for an individual rule or regulation. The DEA can already kick down your door, shoot your dog, beat up your wife and kids, and drag you off in chains on suspicion of an ounce of weed.
I’m honestly not seeing the terrible danger of letting an FBI agent trace who emailed who during a police investigation, any more than I see a problem with them tailing a suspect to see where he drives or checking his phone records to see who he called.
Keith G
@joe from Lowell:
And when a browser history shows access to “how to” sites for illegal activities… anything from counterfeiting, to cooking meth, to hiding wealth off shore – what happens next?
General Stuck
@NonyNony: The stuff in the Patriot Act that Clinton advocated for was not even near what we got after 9-11.. Clinton wanted things changed mostly to fit the new tech world on communications, such as getting a wiretapping, or eavesdropping warrant for individuals instead of a specific phone number, because of the ease to which targets of investigations could swap out cell phones. So you and Cole are wrong about the overall comparison of stuff like bypassing judges and not having probable cause and the like.
As for the dems being the war party, they once were, but alignments stemming from the long term effects of the southern strategy has most hawk dems now as repubs, mostly from southern party switching and the like. And I never claimed, and am not myself “anti war party”. Some wars are justified imo, as the one originally for Afghanistan. Though now it is time to back off from that war that was fucked up and made unwinnable by the Bushies.
Dems now are just afraid of getting labeled as weak and waffling on voting for war, and most in congress did vote against Iraq. But the surveilance stuff they are especially running scared of loosening Bush’s police state laws like the Patriot Act, though many positive changes were made from the first one. Same with FISA, but both are still unacceptable imo.
some other guy
@BR:
Sounds very similar to Freenet (encrypted, anonymous, peer-to-peer filesharing). How is your program different?
mclaren
This isn’t about getting a warrant. It’s about forcing ISPs to cough up i.p. addresses so the DHS can seize their homes and bank accounts and property without charges or a trial when ACTA comes into force. The DHS has already become Disney’s private police force against downloaders and this is going to be raised to a fever pitch. As I’ve mentioned before, very soon DHS goons will smash in the doors and windows of peoples’ houses and pin them to the floor with machine guns in their faces for downloading TV episodes or mp3s or hit movies, courtesy of ACTA.
Incidentally, Joe Biden wrote the earliest version of the Patriot Act back in 1995. Clinton passed on it. Obama, however, seems to adore it. Biden loves him some police state and he’s been the biggest fan in congress of arresting and sending downloaders to prison, so you can bet this is all about preparing for ACTA. Read up on “contributory infringement” and the civil asset forfeiture provisions in ACTA and you’ll see how this new provision fits in.
Steeplejack
@Zifnab:
I hate this unconscious assumption–shared by a lot of us–that anyone being investigated is automatically a criminal.
Unfortunately, it isn’t the case that the authorities investigate only people who actually commit crimes. Sometimes they investigate people who are “suspected” of committing crimes. And, while I know the odds of the police or FBI making a mistake and investigating an innocent person are infinitesimally small–I mean, I can’t remember a case where the police just “knew” that someone was a “bad dude” and went looking for something to nail him with–it still would be nice to have the legal niceties observed, despite the inconvenience to the FBI.
Also, what NonyNony said.
Nick
@mclaren:
And ABC News is owned by whom?
There’s your media problem right there
General Stuck
@joe from Lowell: While I think the “police state” BS is way overblown by left wingers, many of Bush’s post 9-11 were in that direction relative to what we have been accustomed to in this country.
We don’t have video cams covering about every square inch of space as is the case in Great Britain, which is my idea of a Police, or surveilance state. So I agree, we are still much much more free than other places, and even western democracies.
Zifnab
@Brachiator:
In the first case, I’m pretty sure the answer is “Yes” (although the Bush Administration tried to fuzzy that up). In the second case, I honestly don’t know.
Either way, being able to trace an email’s forwarding history is different from reading the contents of the correspondence. Checking who received what emails is more equivalent to phone logs than wire taps.
joe from Lowell
Keith G.,
The fact that you’ve visited those sites wouldn’t be enough, by itself, to get an arrest or search warrant. If you are already part of an investigation about, say, counterfeiting, I’m sure that information would go into a file. If there was other information linking you to a counterfeiting ring, then that and your latest internet activity, could be put into a warrant application – but a search warrant requires specific place/things to be searched, so there would have to be some evidence on that site suggesting there would be evidence of a crime at a certain location.
Most likely, the information about where you’ve been browsing would be used to determine additional investigation.
russell
Nothing. For intelligence gathering and terror investigation, there is nothing hard about getting a warrant.
You get them from the FISA court, which basically never denies warrant requests, and if you’re tracking something urgent you can begin immediately and then have three days to make the warrant request to the FISA court.
It’s correct that monitoring email and web request headers is more or less the same as looking at “to” and “from” information on an envelope, or monitoring what numbers you have called on a phone (but without listening to the phone call).
And prior to USA Patriot Act, those kinds of surveillance required a FISA warrant. Post USAPA, the FBI can conduct that kind of surveillance with a National Security Letter, which is basically a subpoena that the FBI can write for itself.
NSLs have, literally, been written on Post-It notes. They are basically a free pass for the FBI.
The change Obama has requested was to explicitly make email and web request headers available through a National Security Letter.
If you think NSLs are a perfectly fine thing, you will have no worries, this is just more of the same.
If not, then not.
joe from Lowell
@Brachiator:
I don’t know.
Well, they could ask.
Yes, the cops can always look at anything in plain sight.
These are the type of questions we need to be asking about this – how principles drawn up in the days of pen-and-paper communications and the Post Office apply to electronic communications.
gex
The reason this crap is bipartisan is because Hollywood and the entertainment media want this as well. RIAA wants to sue more people for millions of dollars for downloading 50 songs and such. The right gets their police state, the left gets their – I don’t even know what the fuck they think the principles are behind not having to have probable cause to snoop into someone’s Internet information.
NonyNony
@Zifnab:
Oh, I’m not talking about police probing here. If you don’t need a warrant you don’t need to have a police probe going on to get this information – you just need the authority to get the information. I’m talking about the head of the FBI collecting files of blackmail information to use against elected officials. Specifically, I’m thinking about what J Edgar Hoover would have done if he’d had the ability to get this kind of information about Congress-critters. He’d have had the identities of their mistresses locked up, as well as any potential kick-backs and other schemes they were involved in. And he would have used that leverage to get his way too – he worked with far less back in his day. Without transparency – which national security always trumps – stuff like this just gives the heads of intelligence agencies one more lever to pull on elected officials when they want to get something out of them.
I’m less worried about the government spying on me and what websites I visit (what are they going to do – rat me out to my wife on the sites I visit? I’m not hiding anything from her.) I’m far more concerned about how this impacts the checks on government and how it destroys transparency than I am about anything else. This kind of authority is ripe for abuse – that’s why judges have to review cases for warrants in the first place, so that it isn’t just the Executive going off on their own doing whatever the fuck they want. They need to get a sign-off from the Judiciary to make sure they aren’t doing things like that.
If I could be guaranteed that only criminals and terrorists would be caught up in this, I’d be less skeptical of it. But then, if I could be guaranteed that it would only be used on criminals and terrorists, they probably wouldn’t need to be doing it without a warrant now would they?
MattR
@joe from Lowell:
The analogy you provided about phone calls vs emails is definitely apt. As was mentioned in the article, “what about facebook?”. How do we treat friend requests or private communications between friends via social networking sites? The real issue seems to be that the nature of communications has greatly changed over the past 10-15 years so that now almost everything is done using some sort of intermediary that records the transaction. As a society we either need to draw new lines or accept that our previous notion of privacy is obsolete.
Rob
No references to “poutrages” or “Firebaggers” for this one I guess.
Zifnab
@Steeplejack:
Well, shit. That’s why police investigate, rather than just kicking down the doors of everyone in a neighborhood and arresting them all en mass.
Yeah, absolutely. The FBI investigates innocent people. Likely all the time. But the FBI doesn’t know whether said people are innocent until they have investigated them. If a bank is robbed, and the FBI has information leading to a suspect, and the suspect sends an email out to ten other people, the FBI has to investigate everyone who received the “let’s rob a bank” email.
That doesn’t mean everyone on the list is guilty of bank robbery. But the FBI is beholden to the citizenry to check, continue investigating people they continue to believe are suspects, and drop those that have no relation to the previous crime or potential future crime.
Steeplejack
@General Stuck:
Well said.
joe from Lowell
@mclaren:
Interesting angle. I’m not sure that you’re right about the administration’s motives, but the implications for copyright law are important here.
@General Stuck:
I agree, and I don’t like the direction we’ve been moving, either. I’m critical of some of what Obama has done, such as telecom amnesty, but that’s no excuse for people to be jerking their knees every time they see a story about the topic. We need to look carefully at each proposal and policy and think about it in constitutional terms, not just assume that every specific action fits into a larger narrative. Some things the government does to investigate crimes are perfectly appropriate!
@russell:
And if you think that NSLs are fine for some purposes but wrong for others, which should require a warrant, then you have to go a little deeper and engage with the details.
joe from Lowell
@MattR:
If you go back to 1970 or 1870, nobody would have thought that a message you post on or through a public forum would remain so secret that nobody would even know it had been posted.
I don’t think it’s our previous notion of privacy that’s challenged here, but a new one – that communication through a public source should be as private as handing someone a note. I think there are a lot of people who, in many different spheres, are learning that that’s not so.
gnomedad
@Steeplejack:
I appreciate your point, but unless the cops are clairvoyant, of course they will frequently be investigating innocent people and they had damned well better be aware of that.
Zifnab
@Brachiator:
http://www.thisis50.com/profiles/blogs/ohio-supreme-court-rules
And apparently the Ohio SC thinks they need a warrant for phone logs. There you go, I guess.
So there you go. :-p
Tsulagi
Yep. And if it’s not that umbrella, it’s “to protect the children.” Terrorists and children are gonna kill us all.
It’d slow down that whole transparency process. Not quite the transparency I was hoping for.
Steeplejack
@Zifnab:
My criticism was that your example presumed the guilt of the people being investigated. I think that is a common mental lapse that people (unconsciously) use to rationalize police-state encroachment. “Well, grabbing someone off the street and taking them to a black site is icky to think about, but of course it would only happen to terrorists, so not to worry.” That’s an extreme example, but slippery slope, etc.
I remember the Nixon administration, so perhaps I am inclined to be more of a civil-liberties absolutist.
Steeplejack
@gnomedad:
Which means it’s nice to have the check of their having to show probable cause to get a warrant, rather than just writing their own ticket to do whatever they want.
MattR
@joe from Lowell: Perhaps the better phrase would have been “our previous degree of privacy is obsolete”. I agree that nobody ever thought that posting in a public forum would be secret. The thing is that pretty much everything has become a public forum of some sort in modern society.
FlipYrWhig
@Rob:
@some other guy:
I don’t think John has ever said anything negative about criticizing Obama’s treatment of civil liberties. Snark fail.
John S.
You can criticize Obama without drawing idiotic comparisons. Really, you can!
joe from Lowell
@Zifnab:
Your link about the cell-phone case isn’t really relevant. In that case, the police were clicking through a cell phone they’d taken off of somebody, where they could find pictures and the contents of messages. It wasn’t just about communication logs, but actual content.
@Steeplejack:
But they can’t “do whatever they want.” There are some things they can do without a warrant – like sit down the block and write down the license plates of people who visit you – and some things they can’t do – like search those vehicles’ trunks while the owners are inside with you. There are centuries of case law and legislation teasing out what is and is not allowed without a warrant. The issue on the table now is whether the logs, but not content, of your electronic mail is private enough to require a warrant.
Zifnab
@Steeplejack: I meant it more as, “We’re pretty sure guy A is involved, but now we need to know who guys B, C, and D are and we can’t do that if we can’t see who guy A has been emailing. What’s more guy B might not have gotten the email from guy A. It might have been forwarded by an intermediary. So we’ve got to follow the chain.”
Emails get forwarded and replied and floated around all the time. So I’m sympathetic to a law enforcement agent that wants to follow the bread crumbs, while avoiding a bunch of red tape.
That said, if phone logs are private, I can’t see much difference between that and email addresses.
Corner Stone
@Zifnab:
Not to be overly critical here, but the people the FBI investigate are innocent until proven guilty. They aren’t guilty just because the FBI are investigating them, nor are they guilty if a wiretap reports them saying they committed an illegal act.
Zifnab
@joe from Lowell:
The question I had was “can the government look at phone logs without a warrant” and the answer appeared to be “no.” I’m considering phone logs and email logs roughly equivalent here.
Corner Stone
@FlipYrWhig:
No, you’re right. It’s a Balloon-Juice Approved ™ category of criticism.
Everyone! Get your freak flags on! This is a topic we can all criticize the administration safely!
FlipYrWhig
@Steeplejack:
I always wonder if this is a generational thing. I’m pushing 40 so I’m not young at all anymore, but, I’ll admit, I just find it hard to invest a lot in the politics of these privacy and due-process issues. To be sure it still seems unfair and wrong for the law (government, cops, etc.) to do these kinds of things, but I just don’t have the passion for fighting about it. Like guns and nuclear power and capital punishment. I’m just deadened and resigned to them by now.
joe from Lowell
@Zifnab:
But once again, looking through the cell phone reveals much more than logs. It also reveals content. It was not a decision about mere logs.
joe from Lowell
On the phone logs thing: the phone company can turn over your phone logs any time they feel like it, warrant or no.
When the police get a warrant for your phone logs, they get it “against” the phone company, not against you.
In this case, it’s the ISPs whose interest in privacy is being challenged, not the users, legally.
Comrade Dread
No doubt. Everyone but the DFHs and the civil libertarians.
It’s all about fear and a complete lack of imagination/empathy.
Despite their loud rhetoric, people of all political stripes fear the Other more than they fear their own government.
There is no concept or idea in their head that the power of the government might just end up being turned against them someday, and they’ll sorely miss all of the rights they gave up to get the Other.
Corner Stone
I don’t care if you want to criticize the Administration, Obama or the Democrats. I just think you should agree with yourself when you do it. If you claim to be a progressive you should be able to go after the Administration, Obama and any Democrat using progressive talking points and framing. It is the lazy use of wingnut talking points I find objectionable.
Cole did the same thing that any blogger at any Republican/Teabagger website would do: he went on the attack against the Obama Administration. He hit all of the talking points of Wingnutopia: Obama is weak; Obama can’t be trusted; Obama is following policies that harm America; Etc. Etc. Etc.
I am sorry that this nuance idea that progressives should be able to criticize their own without the use of Wingnut memes, frames and talking points is so hard to grasp. It is not a call for zero criticism. It is a call for honest and smart criticism. It is a call for useful criticism.
Steeplejack
@joe from Lowell:
I didn’t mean to imply that they can do whatever they want. I said that their having to get a warrant is a better alternative than their doing whatever they want, which seems to be the way things are trending, little by little.
Our privacy rights are dying by a thousand little cuts as we make things more
convenientefficient for the state to get on with the job of protecting us from the terrorists. As someone said above, the FISA courts have almost never–maybe actually never–denied a warrant, but somehow even that is too much of a bureaucratic hoop to jump through. And when the government is found to have ignored what safeguards are in place–as happenednumerousseveral times in the Bush administration–there are no consequences. We must look forward, not dwell on the unfortunate mistakes of the past.ET
Like the RICO statutes that started as a way to go after the mob and drug cartels but have morphed beyond all recognitions, the Patriot Act has morphed. I knew this when the the Patriot Act was passed, so sadly, this is so not a surprise. Sure I wished the Obama Administration had slowed the morph and am severely disappointed, but it was going to happen no matter what. After all the inevitable morph was one of my biggest reasons for thinking the whole thing was a bad idea from the get go.
It will also not be a surprise when:
1. Republicans bring up the “jack-booted thugs” meme and start railing about “big brother,”
2 the MSM will fall in line, and
3 both will collectively forget that the GOP was the single biggest driver in the move towards more government surveillance with a big assist for the sleepy, lazy, and/or forgetful MSM.
All the while John Q. Public will just go about their lives. Some will get sucked into the GOP vortex, some won’t know WTF anyone is talking about, and others will shrug their shoulders.
Bill Murray
@joe from Lowell:
which is why it’s called a fishing expedition.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998565
has an interesting discussion of the I’ve got nothing to hide argument
Nick
@Comrade Dread: I got beat down back in the FISA days by a bipartisan group of friends when I couldn’t answer the question of “If you have nothing to hide, why are you worried?”
That’s the way it is. What do I say to Firebaggers and DFH? You’re getting a police state whether you like it or not, so who would you rather running it, someone who actually cares that you exist, or someone who wants to eliminate you?
Yes I realize this is a “would you rather get shot in the arm or the leg?” question, but it is what it is
General Stuck
It is some cold comfort that dems have resisted thus far most of the wingnuts cries to make both controversial parts of the PATRIOT and FISA acts permanent, and they both are set to expire in a year for the Patriot act, and two years, I think, for the FISA one. So these bad laws in large part are not yet permanent and will take affirmative action to extend. But I won’t be holding my breath for them to go quietly into the night of no return anytime soon.
joe from Lowell
@Bill Murray:
Incorrect. A fishing expedition is based on there being no legitimate reasonable suspicion to justify any observation or investigation whatsoever – just trolling through information in the hope something turns up.
The issue raised by this action have no bearing on that at all. The question is whether the feds, when they have a reasonable suspicion about a specific target, need to get a warrant for a specific type of observation.
BTW, nobody has made any “I’ve got nothing to hid argument.” I certainly haven’t. I’ve been discussing the legal standards to when the government is allowed to look at what.
russell
Which I kinda thought I did.
The bright line here is what falls under a reasonable expectation of privacy.
Conversations between you and somebody else does. Any public record that conversation leaves behind generally does not.
So, cops can go to the PO, ask to see your mail, and look at the addressing information on the envelope without a warrant, because *in order to deliver your mail*, the addressing information has to be in the public sphere.
But cops can’t read the letter inside.
In the case of phone records, warrants are needed for both listening to the conversation, *and* for capturing or looking at records of who you called.
The conversation itself is considered to be protected under the Fourth Amendment, and so probable cause must be shown to get a warrant.
The record of who you called is *not* protected under the Fourth Amendment, but is protected by law, and so a warrant is needed. Probably cause is not required to get this warrant, however, police or the FBI merely need to assert that the information is relevant to an investigation.
For intelligence gathering or terror investigation, the normal criminal requirements do not apply. Instead, the FISA rules apply.
Prior to USAPA, a FISA warrant was required to look at phone records. After USAPA, the FBI can look at phone records with a NSL. The status of email and web request headers, however, was ambiguous.
The change Obama has asked for is to make it explicit that, for purposes of intelligence gathering or terror investigation, email and web request headers will be treated like phone records, and will be accessible with an NSL.
So, to reiterate my point upthread, *if you think an NSL is an appropriate vehicle for obtaining phone records without a warrant*, the change should not bother you.
If you *don’t* think so, the change will.
My personal feeling on the issue is that the FISA regime was sufficient, introducing NSLs was not necessary. YMMV.
Some other points:
Nony Nony, whether probably cause is required for a warrant depends on what you want to look at, and whether the investigation is criminal or for intelligence gathering. Probable cause is not always required, in many cases lower standards apply.
Mithras, the issue here is not email or web records from communications you’ve carried out at your place of business. The way that “businesses” come into this is that businesses are who holds the records — in other words, your ISP. The communications in question are personal.
Last but not least, the gag order aspect of NSLs has been thrown out.
Paris
I just finished a couple of books detailing the persecution of the American Indian Movement by the FBI in the 70’s. The FBI were able to make the AIM ineffective by tying up the leaders in court. Few were convicted because jurors were outraged by the illegal FBI activities, including encouraging a brutal civil war on Pine Ridge. I wouldn’t want to live in a society where the FBI was given the same liberties they had, without any oversight at all. Get a warrant you WATBs.
General Stuck
@russell:
\
And thank gawd it was. Easily for me the most onerous aspect of all of these new powers. I actually lost sleep from being so angry about this provision when it was first enacted.
liberal
@General Stuck:
Ah…the sound of hell freezing over…
General Stuck
@liberal: There are a number of things I have criticized Obama on. Just not for the specious shit you and other 11 percenters have unfaithfully brought to this blog. And not as a reason to withdraw my overall support for him, as is also the case with this issue.
Brachiator
@Zifnab:
Thanks very much for taking the time to look for precedents and post links, especially when they demonstrate that the issues here may be more complex and that there are precedents for restrictions on just asking for these materials without warrants.
But even though we have new communications methods, previous standards apply. When I use my land line, authorities can’t just record my conversations and say that the phone carrier’s interest in privacy is being challenged, not mine.
I don’t see how an ISP is all that different from a telephone company.
As an aside, here in California, I cannot legally record a phone conversation that I have with someone unless I announce that I am doing so in advance. It’s my phone and I can voluntarily give up my own privacy rights, but can’t surrender anyone else’s. This doesn’t relate directly to the issue here, but does point to other situations where boundaries have been established with respect to phone communications.
russell
There isn’t much difference.
The situation with phone logs is that they are *not* considered to be protected by the Fourth Amendment, because they are inherently in the public sphere.
By making a phone call, you are considered to have voluntarily divulged the number you want to call to the phone company. It’s impossible for them to place the call for you without making that information public.
So, it’s considered to be outside the scope of a reasonable assumption of privacy, and thus to not be protected by the Fourth Amendment.
Phone records *are* covered by law, and police must get a warrant to receive them from phone companies. They do not have to show probable cause for this warrant, however, they merely have to state that the records are needed for an investigation.
RareSanity
@joe from Lowell:
I have read your arguments and the arguments of others, and basically it boils down to this…
4th Amendment:
It says, “unreasonable searches and seizures”, meaning if there is not a reason to search my person, papers, or effects, you are violating my rights. If you have a reason, you have probable cause, which leads to the next statement. Whoever claims to have probable cause, must go on public record, to a judge, under sworn oath, and describe what that cause is and what of mine is to be searched based on that cause. Otherwise, you are violating my rights.
Now I can go even further and explain how NSLs further violate my rights. If the FBI is allowed to look at any information of mine and then use that as probable cause to get a warrant, they have just violated my 5th Amendment right:
By using my information against me to get a court order, you have caused me to be a witness against myself.
It is all wrong…period.
It is the courts and warrants and the tedious processes involved that allow fellow citizens to act as law enforcement officials, while still being accountable to the laws they are attempting to enforce.
If you think someone has broken the law, get a fucking warrant. If you think someone is planning to break the law, get a fucking indictment. I could plan all kinds of nasty things, but, until I take steps to actually carry it out, I have not broken the law.
I agree with the “warrant against a person” instead of an phone number. But, whomever is trying to get this information, still needs to swear, under penalty of perjury, who they are about to search, why, and what they think they will find and a judge needs to deem that information reasonable.
burnspbesq
@joe from Lowell:
I’m happy to have this debate. Here is my carefully considered, non-knee-jerk opening statement:
NSLs are an abomination. There is no legitimate purpose for them. If you, FBI, don’t have enough to get a warrant, try harder. It is inherent in the nature of democracies that they are required to fight terrorism with one hand tied behind their backs. If you voluntarily surrender your basic freedoms, the bad guys win.
Your response?
NobodySpecial
@General Stuck: So, what did they find in your browser records?
russell
The difference here is where the reasonable expectation of privacy begins and ends.
Conversations, whether by postal mail, phone, or email, are considered to fall within a reasonable expectation of privacy, and so are considered to be protected under the fourth amendment.
Any information that must be publicly disclosed to carry out the conversation — envelopes your letters are carried in, records of who you called and when, email or web request headers — are considered to be outside of the reasonable expectation of privacy, and so are not protected under the fourth amendment.
Phone records, specifically, do receive some limited protection by law, but that is not based on a fourth amendment guarantee. Congress just thought it was a good thing to have. The protection extends to requiring a warrant, but the police do not have to show probable cause to get the warrant, only that the records are needed for an investigation.
Sorry to go on about this, hopefully the information is helpful.
joe from Lowell
@russell:
Is not the addressing information necessary to deliver electronic communications in the public sphere?
Phoebe
A more boring [efficiency-related rather than liberty-related] argument against this kind of thing can be found here.
The nutshell:
“In the needle-in-haystack fight to ferret out terrorists, we’ve wasted billions building a bigger haystack.”
I found that article via a link from some guy that Andrew Sullivan’s been linking to a lot lately, and whose entire blog I seem to love. He appears to be the non-glib side of libertarian, in that he doesn’t cling to the beautiful theory of the invisible hand like it’s a religion, but the opposite. He kind of hates that kind of thinking, in fact, as evidenced by his post of today.
General Stuck
@NobodySpecial:
Nobody Special.
edit – and 11 percenter ponies. all of them
joe from Lowell
I hadn’t realized that. That’s excellent news.
Does that apply to all NSLs, or just to some categories?
russell
I agree with this 100%.
In particular because, in the context of intelligence gathering, terrorism, or any other national security situation, the bar for obtaining a warrant is very, very low.
Basically for a FISA warrant you have to say who you want to conduct surveillance on, what information you expect to gather, and why you want it. You have to show probable cause that the person you want to monitor is acting for a foreign power, which presumably includes terrorist groups.
If the person you want to monitor is a US citizen or legal resident, you can monitor them for three days without a warrant. If the target is not a US citizen or legal resident, you can do so for a year.
Last time I checked, out of almost 20,000 FISA warrant requests made, four or five were denied. It’s not a high bar.
joe from Lowell
@RareSanity:
Correct. Agents using the NSLs are required to have a reason. They can’t just be checking on random people.
No. This is not even close to correct. There are many standards below “probable cause,” such as “reasonable suspicion,” that do not rise to the level authorizing a warrant. The police are allowed to conduct certain non-intrusive “searches” with neither a warrant nor probable causes, and always have been.
No, that isn’t even close to any constitutional standard that has ever been endorsed in American history.
Or, you could do what has always, through the entire course of American history, do what the police have always been allowed to do, and conduct investigations through means that don’t require a warrant, like watching his house.
russell
Yes, it is, and so is not protected by the Fourth Amendment. It receives a much more limited protection by statute. By “limited”, I mean that the requirement for getting a warrant is much lower, and does not require a showing of probable cause.
joe from Lowell
@Brachiator:
Correct. The content of your conversation – your voice/data and the other parties’ – cannot just be recorded or viewed without a warrant. This new proposal doesn’t apply to that content, though, just the addresses.
The content of messages is YOUR privacy interest. The routing and addresses are not.
joe from Lowell
@burnspbesq:
That you have written a knee-jerk comment out of ignorance, that displays not a scintilla of knowledge or even interest in the relevant legal questions.
What is one supposed to reply to a legal/constitutional argument that consists of “X is an abomination” without any supporting logic or evidence at all?
Nuh-uh?
NobodySpecial
@General Stuck: 11 percenters? This must be some new secret handshake amongst the Purity Police. Does it involve hand jive too?
General Stuck
@NobodySpecial:
I could just go back to calling you idiots, your choice.
And 11 percenters is the number you get after subtracting the current number of 89 percent of liberal democrats who still support Obama in this country. Just simple math. No purity involved.
gnomedad
@Steeplejack:
I agree, but isn’t some manner of “investigation” necessary to establish probable cause in the first place?
joe from Lowell
Russell,
I tend to think that it is the FISA court and its lowered standards for warrants, not NSLs, that is the abomination.
We shouldn’t blur the line: there should be one, high standard for a search warrant, and another, lower standard for what the government can do without a warrant.
Steeplejack
@joe from Lowell:
I hate to keep beating a dead horse, but the first question is whether the feds have a reasonable suspicion about a specific target. You are jumping ahead to frame the question in the context that the feds’ suspicion is reasonable. In that context, who could possibly disagree with giving them what they want?
Our entire system of government is (allegedly) based on a system of checks and balances. So why do we need to whittle away at the C&Bs in place in the criminal justice system? Yes, we need to address new issues and technologies as they arise, and revise our procedures accordingly, but I dislike that we tend to frame the issues (largely unconsciously) in the context of “known criminals” and “reasonable suspicions.”
Putting aside tinfoil conspiracies about government corruption, black helicopters and Big Brother, the FBI is still a bureaucracy that is prey to the same faults as any other organization: tunnel vision, groupthink, crusaderism, etc. I think it is good to have outside observers check their work regularly to make sure that their suspicions are reasonable.
Steeplejack
@Paris:
Excellent example. If the feds want to fuck you up, it’s not that hard for them to do, but your life becomes hell. The more oversight the better.
Bella Q
Except that State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-642, was focused on a search of a cell phone itself, which was retrieved from its owner as part of a search incident to arrest. The state’s argument was that its contents – including the list of calls – were fair game as an exception to the warrant requirement because it was a search incident to arrest. Finding the phone was appropriate, but searching its contents was not, is the gist of that case. So it’s not really on point, as it doesn’t address going to the phone company. It’s still a correctly limiting decision, from my view. Any limitation on the continuing erosion of Fourth Amendment protections is something I cheer, especially in my state.
@burnspbesq:
My response is: my sentiments precisely.
Steeplejack
@gnomedad:
Of course. What is at issue is what exactly the authorities are allowed to investigate without a warrant or some sort of judicial oversight.
joe from Lowell
@Steeplejack:
No, it’s not. It’s already established that they have to have a reasonable suspicion to get an NSL, just as they have to have a reasonable suspicion to engage in all sorts of other sub-warrant-level investigations.
Do you object to the fact that the police can sit across the street and watch your house without anyone first certifying that they have a good-faith basis for reasonable suspicion?
No Supreme Court ever has. They are collecting information from the public domain. There is not whittling away of checks and balances here.
Bella Q
@joe from Lowell:
I don’t disagree with this, but really I think it’s all an abomination. That seemed acceptable to many in a time where people were really frightened of an outside threat. I’ve always been much more worried about the inside threat; the government itself. Jedgar’s reign was not that long ago.
joe from Lowell
And if you do object to the ability to watch publicly-visible areas based on reasonable suspicion, then you are welcome to that belief, but the administration’s adherence to that long-established standard is not an erosion of anything.
Squarepeg
@eemom:
bitch please, get a new [email protected]eemom:
bitch please, get a new phrase at least.
Comrade Dread
@Nick:
The Simplest answer to that particular question, is:
If you’re feeling particularly snarky, you can follow that up with a counter-question to your friends:
Do you hate America because of our freedoms? Or just the Constitution?
In short, it’s not of the government’s fucking business who I talk to, see, visit, email, or what I browse unless they already have probably cause to believe I’m engaging in illegal activity, in which case, they have to present that evidence to a judge (who really just rubber stamps shit anyways, so what is the big fucking deal with getting a warrant?) before they can invade my privacy.
The other answer is, because it sets a precedent. It waters down Constitutional protections and gives the police and Executive branch more power that can be abused and more power that can get innocent citizens caught up in a ‘Legal’ system nightmare.
Last answer (and a related one to the last paragraph) is, because defining ‘doing something wrong’ is what government does when it passes laws. So potentially, once we’ve shat on the Constitution enough, some opinion you hold, some group you are affiliated with at any level, some website you visit, some comment you leave, someone who gets a forwarded email from you, might be considered ‘wrong’ by the State and suddenly, you may just find yourself the victim of the laws and powers you enabled.
joe from Lowell
Like sitting across the street and watching a house? Or asking potential witnesses voluntary questions? Or walking over and reading something you wrote and then dropped on the sidewalk?
The police don’t even need to zip their flies to do those things, nevermind get a warrant or some sort of judicial oversight.
The question here is whether the routing information for your emails and browsing is like the address on the outside of an envelope, or like the letter within.
Sharing your emotions about how the world is going to hell, and this just feels like a part of that, doesn’t actually answer that question.
NobodySpecial
@General Stuck: Interesting that you label all Democrats as ‘liberal’, even though there are demonstrably conservative Democrats. Kinda says something.
Also, you’ve never asked me if I support Obama. I could say I’m a strong supporter or that I hate him with the fire of a thousand suns, but you’d never know. Instead, you take the position that because I’ve disagreed with some of his decisions and non-decisions and that I poke fun at the so-called ‘pragmatic Democrats’ on this board, that I have to be bitterly opposed to him and everything he does.
Tell me, does it suck to be that wrong for that long of a time period? Because you seem to revel in it.
liberal
@General Stuck:
LOL!
Wuss-ass finreg is “specious shit”?
RareSanity
@joe from Lowell:
I’m on my phone so excuse typos and formatting.
Watching my house is not a search. Tailing me to track my movements, is not a search. Interviewing people about me is not a search. They are all parts of a legitimate investigation, that could eventually lead to probable cause to then obtain warrants for any searches.
However, phone logs, phone calls, personal emails and personal internet histories are searches and should be allowed without legally obtained warrant granted by judge. Not a hunch, not as a result of a fishing expedition. The official should have to justify and explain the reasoning for wanting to search someone or someone’s stuff.
That is the problem, in order give the appearance of security, the notion of legitimate investigation is being trading for huge dragnets and fishing expeditions. I’m all for legitimate investigations, not fishing expeditions.
joe from Lowell
@Comrade Dread:
You’re welcome to that opinion.
Just know that that has never, ever been the standard under our constitution.
I think you know this already, if you give it some thought. Police can’t even question people voluntarily, observe what goes on in public, or look at the exteriors of houses without a warrant?
liberal
@NobodySpecial:
Kinda like when he called me a puma for having the audacity to treat Obama’s (IIRC) treatment of the banksters as wimpy, even though I both voted and gave considerable money to Obama in both the primary and the general.
joe from Lowell
Keeping in mind that we’re not talking about the contents of those emails and browsing, but just the addresses:
On what do you base this? Looking at the addresses on the outside of envelopes has never been deemed a “search” that requires a warrant. What is it about changing the formate from pen and ink to digital that changes the nature of addressing information sent out into the public to allow the message to get to the receiver?
Using buzz words like “hunch” and “fishing expedition” to assume that the police are acting in bad faith doesn’t get us anywhere in answering this legal question.
Agoraphobic Kleptomaniac
I’m absolutely baffled on why everyone is focusing on the E-mail aspect of this law. (who uses emails still? and what criminal is dumb enough to plot crimes through email?)
Those four little words, in the current liberal interpretation of the language of the law, would allow for the search of your browser history without a warrant (that’s why they are asking for “electronic communication transaction records” instead of “electronic Mail transaction records”. Now, emails are personal, and can be about anything. But your browser history, I would argue, IS the content. By knowing what your browser history is, I know what books you buy at amazon, I know what items you’ve Purchased, I know what forums you talk on, I know almost every single thing about your private life.
This is probably the most dangerous change to warrantless spying in this country since everyone’s phone got wiretapped, and probably even moreso.
Bella Q
@joe from Lowell:
The question here is whether the routing information for your emails and browsing is like the address on the outside of an envelope, or like the letter within.
That’s a precise statement of the question. My off the cuff response is I’d argue that routing information can be characterized as analogous to phone records and thus fall into the former. While browsing history is much closer to the contents of communication. It’s the browser history that would worry me – it’s altogether too revealing to be viewed without a warrant.
liberal
@General Stuck:
Apart from NobodySpecial’s useful point regarding your apparent conflation of “liberal Democrat” and “Democrat,” what’s your definition of “support” here?
Do 89% “support” Obama’s part of the bankster bailout or the Afghanistan occupation?
If “support” means “would vote for Obama over the antichrist’s candidate (aka the Republican),” that’s a pretty low bar.
liberal
@Agoraphobic Kleptomaniac:
Is it really browser history per se, or are you referring to logs at the ISP? Not that there’s necessarily a practical difference; just don’t see how the physical contents of the computer in your domicile can be gotten at w/o a warrant, so I suspect it’s more the latter.
joe from Lowell
Of course, there are also things police are allowed to do on a hunch, a fishing expedition.
A cop on a beat doesn’t like the look of somebody, so he keeps him in his sight as he walks down the sidewalk. Perfectly constitutional. Doesn’t even require a reasonable suspicion.
But a hunch can’t be used to justify stopping a car and asking the driver questions. That requires some kind of higher standard – but still doesn’t require the “probable cause” necessary for a warrant. The officer can act on his own, without prior approval, but the suspect can later challenge in court whether the cop had an actual reasonable suspicion.
For something like going through the guy’s apartment, the police would need to establish probable cause, and get a warrant.
Nobody thinks electronic routing information like email addresses should be obtainable on the lowest level, the hunch, the fishing expedition. That’s a straw man being constructed. The requirement to use NSLs demonstrates that. The government has to document some level of reasonable suspicion – that’s what the NSLs are for. If this was something they were allowed to do on just a hunch, they wouldn’t need to submit an NSL.
The question is whether getting electronic address information is more like the second tier, or the third.
Agoraphobic Kleptomaniac
@liberal: Well, as the law is written, my computer is “communicating” with the servers, sending them requests to go to a certain Address, which has to route through some communication relay, which tracking software could be used on. From the earlier posts, each new web address is a new “phone number” for a new website, *while still not being the content*. If the verbiage goes in as planned, I don’t see how a judge could forbid the government from seeing what “communications” your computer is having with content servers without a warrant.
RareSanity
@joe from Lowell:
I may be wrong but, I think any interferance with delivery of US mail is illegal. So intercepting a mail carrier is illegal. I don’t know if the act of opening my mailbox is illegal.
The problem with email headers and addresses is, by what means were they obtained? If the information is in the public domain, there is no problem. If it is not, authorities need to get a warrant just like any other information not in the public domain.
It’s simple really, public domain no warrant required. Otherwise, get a warrant or indictment.
joe from Lowell
Bella Q., Agoraphobic Kleptomaniac,
You raise a good point about the browser history. Looking at the address on an envelope doesn’t allow you to go back to the office and find out what’s in the letter.
But, still, the content of the web sites you’ve read – note, a browser history won’t allow the government to access any information you’ve submitted on those sites – is a bit different from the content of a letter you’ve written.
This seems to be the toughest place to apply the established standards.
Steeplejack
@joe from Lowell:
At the very least they are seeking to expand the definition of what is in the “public domain.”
@joe from Lowell:
Agreed. My point was that you (perhaps unconsciously) framed your examples with the presumption of guilt on the part of the suspects and “reasonableness” on the part of the FBI. I think those presumptions are worth examining. And I’m not picking on you. I think that most of us share them.
Well, I didn’t see that coming, and I don’t see how it’s helpful or relevant to the topic.
Look, these are tough issues, and the process of sorting them out is bound to be painful. I have gotten plenty to think about from this thread, and there are aspects of my own assumptions that I need to rëevaluate. I hope I can do that without getting pissed if someone happens to reveal a blind spot I might have.
Nick
@Comrade Dread:
I’ve used this before, the answer I usually get is “The Constitution is not a suicide pact” or “Terrorists don’t have the rights we have in the Constitution” or “This doesn’t violate the Constitution”
Agoraphobic Kleptomaniac
@joe from Lowell:
Which leads to a conundrum… If I use a web-based Email application, can they see whom I’ve sent emails to? The “content” of my web browser IS whom i’ve sent my emails to. Aren’t they violating their statute by reading what content was in my browser history? What constitutes communication? If they can read my web-based email client “send” information, why not other data I “send” through electronic communication?
TaosJohn
Obvious where this is heading or where someone wants you to think it is: anyone with an online presence who blogs, comments, tweets, or updates with anything critical of DHS or the national security state may eventually find themselves behind barbed wire. (Facebook, especially, will fall all over itself to cooperate.)
It would be so simple with the Internet. Just lock down credit cards and bank accounts, wait a week, and send someone to fetch you. Why the delay? To make you hit the road, so the government doesn’t need to feed as many detainees. :-)
I can see it now:
“What was your handle at Balloon Juice? Really?? Say, I remember you! What time is bread & water, anyway?”
Sigh. Sigh. And sigh again.
Tlaloc
Funny how the “OBAMA IS WORSE THAN BUSH HE SOLD US OUT!!” tag gets less and less ironic over time. Also funny how Cole is finally discovering he too has fee-fees to hurt.
Comrade Dread
Police can question people voluntarily, and we can tell them, “No. I refuse to answer your questions.”
This, much like your next two scenarios are completely different from perusing your communications online. It’s far more invasive than just merely passing by and observing things.
You’re comparing apples and oranges.
A more analogous scenario to your situations would be if the police sent you a polite request asking if you’d let them port into your PC remotely and copy your records. At which point you could politely tell them to ‘fuck off’.
Instead, they’re bypassing you altogether, investigating you without meeting the standard of probable cause.
Hob
Joe from Lowell: I’m not convinced that browser history fits into your “routing info that has to be publicly visible anyway” model. That’s only true for the IP address of the server; the rest of the URL (everything after the domain name) is part of the message that’s transmitted after the connection has been made, and the ISP has no reason to look at it. If it’s a secure connection then it can only be obtained by breaking SSL encryption… or by going into the person’s house and actually looking at their browser history on the computer.
(And the IP address often doesn’t uniquely identify a website, either, since lots of sites use shared virtual hosting.)
Your other points are relevant, but I wish you could better resist the outbursts about “ignorant knee-jerking”– you’re clearly capable of arguing effectively without that.
General Stuck
@NobodySpecial: @liberal:
LOL, you two are laughable. You sit around all day dreaming up shit to rag on Obama about, never, or very rarely, mention anything he’s done you like, and then have the audacity to whine that I and others call you puma’s, firebaggers, and now 11 percenters and that you really support Obama despite never having anything positive to say about him. Couple of clowns giving each other your usual mutual reach arounds.
And how does it feel to be wanker fools most of the time? I know you can help it largely, but still.
YAWN
joe from Lowell
@Steeplejack:
I don’t think that’s true. It’s not as if electronic routing information, or something like it, used to be considered private, and the law is being changed.
No, I didn’t. Are you not familiar with the legal concept known as “reasonable suspicion,” and how it applies to investigations? I’ve framed nothing in any examples, and imputed guilt to exactly no one. I applied the long-established legal concept of “reasonable suspicion,” and discussed whether it, or some other standard, applies to a certain type of information.
General Stuck
@liberal:
No moron, it means the current monthly polling numbers from Gallup on democratic approval of the job obama is doing as president. 89% is the current approval percent of self described “liberal democrats” as opposed to the other two categories of “moderate” and “conservative” democrats that come in second and third to first for liberal democrats, which is what I’m guessing you two would call yourselves. Though an Idjit firebagger Dem category might need to be added.
And yes, I suspect those who approve of the job Obama is doing would and will vote for him again, despite some disappointments.
joe from Lowell
@Agoraphobic Kleptomaniac:
I
They aren’t getting the information about where your emails went from your browser. They’re getting it from somewhere else, the ISP. Going back to the envelope, the police haven’t violated your rights by reading something on the outside, just because you also wrote it in the letter itself – like, say, the address of the recipient, which often appears at the top of a letter.
Because they aren’t “reading” your send information from your email or message itself. They’re getting it from the ISP.
J sub D
If granted, this new authority for the ever vigilant and always privacy respecting law enforcement community will never be abused.
I’m getting a pony from Santa this year.
joe from Lowell
@Comrade Dread:
But they aren’t perusing your communications online. How could have possibly missed that fact this far down the thread? Your actual communications require a warrant. It’s only the publicly-available information you send into the public domain – the address – that they can get.
It’s no more invasive than sitting in a car and writing down license plate numbers.
No, not even remotely accurate. Again, you’ve missed the central point of the matter – this isn’t about the records and communications themselves. Those are still off-limits without a warrant. This is only about addresses.
But anyways, at least I’ve gotten you to recognize that
is a silly statement. Of course they don’t need probable cause to do some investigating.
joe from Lowell
@Hob:
Good point. The Washington Post story doesn’t seem to get into the distinction you raised.
And you have to admit, pretty much everything that appeared before my comment was vapid knee-jerking, without even a pretense of awareness of or interest in the relevant legal standards.
russell
Actually, the target of an NSL doesn’t have to be suspected of anything at all. The target’s communications merely have to be asserted to be relevant to a terrorism investigation.
Also – something that a number of folks here appear to be confused about is the distinction between surveillance for a criminal investigation, and surveillance for intelligence gathering or terrorism investigations.
The changes Obama has requested apply to intelligence gathering and terrorism, not to criminal investigations. Requirements for surveillance for the former are generally far less stringent than for the latter.
What Obama’s asked for is pretty much a minor, incremental change to the existing law. It’s not an unreasonable change *if you accept that the existing law is legitimate*.
And yes, web request headers are problematic because it’s hard to make a clean distinction between routing information and content. Same with email actually, because subject line is part of the header.
I’m not sure where the law is regarding full URLs vs just IP addresses.
joe from Lowell
@J sub D:
The libertarian equivalent of “But somebody might scam the welfare system!”
Oh, ok, so I guess we don’t have to think anymore. Someone, somewhere, might abuse the system, so we’re paralyzed.
Hey, I read about a cop who lied on a warrant application. Let’s eliminate warranted searches, too.
Either that, or you think you’re getting a pony for Christmas.
joe from Lowell
@russell:
There has to be a reasonable belief that the target is relevant to a terrorism investigation, right. Not a suspicion of criminal activity.
So, we’re still not talking about snooping on random people. It’s a standard like the criminal “reasonable suspicion” one – they have to identify this targeted individual as being involved, and have a reasonable basis for suspecting him. I’ve been talking about it using the criminal-law language.
russell
That horse is already out of the barn.
NSLs have been already been widely and flagrantly abused.
Comrade Kevin
The “discussion” in this thread reminds me of this from The Onion. Draw your own conclusions.
russell
Again, I believe this is incorrect.
The targeted person does not have to be suspected of any involvement in any suspicious activity, criminal or otherwise.
The communications that the FBI wants information about simply have to be asserted to be relevant to an intelligence gathering effort or a terrorism investigation.
joe from Lowell
Russell,
I didn’t claim that the targeted individual had to be suspected of wrongdoing, just suspected to be involved, meaning, relevant.
As you said, this is not about criminal investigations.
Comrade Dread
Which fails the smell test because if this is publicly available information, they wouldn’t need a warrant or a national security letter, they would be able to google it.
This requires going to an ISP company and requesting data from their servers. This is not akin to reading an address on an envelope, unless the police interdict the mail after its been deposited in a mail box and peruse the outside of the letters.
Which is again, a ridiculous statement. This is not a passive action. This is an active investigation into you, based on evidence so flimsy it wouldn’t even stand up to a rubber stamping judge’s appraisal. Come on.
Except, of course, again, this isn’t publicly available information. If it were, they wouldn’t need any NSLs or warrants. This is information about you provided by your ISP. So whatever distinction you try and create between the IPs and the actual bits is rather academic.
Corner Stone
@joe from Lowell:
IMO, whether you feel the change is doomsday, or an incremental expansion ~ there can be no doubt that the ability has been heinously abused by law enforcement in the recent past.
Given that fact, why are we debating an increase in its power?
Because we believe the system has improved oversight?
Or maybe we just laugh it off as shenanigans as joe from LOL seems to here.
Comrade Dread
Right.
Reasonable belief which is defined by the agency writing the NSL without review or oversight except by that agency itself.
Can’t possibly see how that would be abused routinely.
Corner Stone
@Tlaloc:
I’m wondering how long til Dennis G. comes by to call him a poutrager and tell him he really should do better next time and frame this with progressive talking points. Even though no one can tell me how that could be done.
russell
The issue here is not whether the information is “publicly available” in the sense of being readily available to any member of the public.
The issue is whether you have voluntarily disclosed the information to a third party, other than yourself and whoever else was involved in the conversation.
Doing so takes the information out of the scope of a reasonable expectation of privacy.
“Reasonable expectation of privacy” here is a term of art, a fairly specific legal term, that draws a line between what is protected by the fourth amendment, and what isn’t.
And, BTW, police can request the post office to provide them with the to and from addresses of any mail you have sent. That’s called a “mail cover”, and no warrant is required.
Hob
@joe from Lowell:
No, I don’t “have to admit” that. There were a couple dozen comments before your pissy remark; about half a dozen were basically on your side, another half dozen were asking for clarification, two or three said something about police states, and the rest were tangential. What did you expect? Your own knee-jerking almost made me ignore the substantive comments you made later, which would’ve been a shame.
Comrade Dread
To which again, how do you then draw such a distinction between the bits containing the IP and browser history info and the bits containing the text messages or emails I send through my ISP router?
Seems pretty similar under that standard.
Huh. Did not know that. That seems rather invasive too.
joe from Lowell
@Comrade Dread:
You’re confusing the concepts of “publicly available” and “publicly visible.” You probably can’t Google my water bill – you probably have to ask the water department – but that doesn’t make it private information.
This is a legally-meaningless distinction. This is also why I brought up the example of the police being able to ask questions of potential witnesses, like your neighbors.
Except, of course, again, it is. This is no longer about you and I having different opinions. You are factually incorrect here. I’ve told you what the correct answer is. If you don’t want to believe me, fine, go look it up for yourself. What you need to stop doing is saying “Nuh-uh!” about a topic you don’t know enough about to make these authoritative statements.
joe from Lowell
@Corner Stone:
I was actually going to answer your point, but instead:
Go fuck yourself. Don’t talk to me.
joe from Lowell
@Comrade Dread:
…which is exactly like the reasonable suspicion standard for police work.
The one that has always been upheld as the proper standard for non-intrusive (in the privacy sense) investigations.
Again, you are perfectly free to hold an opinion that is radically at odds with the American legal framework, but you are completely wrong to assert that the proposals goes beyond that framework.
joe from Lowell
The bits containing the IP address – whether we’re talking about an email or a web site – are meant to be read, and are read, by the ISP’s computers. They are sent out for that purpose, like the writing on the exterior of an envelope.
The bits containing the rest of the message are intended only for the recipient, like the letter inside the envelope.
It is true that both sets of bits are equally publicly-observable, but that’s not the standard.
Comrade Dread
Alright, you’ve convinced me, this is all perfectly fine and dandy.
I will just sit back, think happy thoughts, and not worry about the potential for abuse, the lack of privacy I have in all of my communications, or the state further defining the Constitution down, because that would just be silly and subversive, and I am a very good citizen who appreciates that my government cares enough to make sure that I am safe by reserving the power to make sure none of us are visiting naughty places or talking to ‘bad’ people.
As a person with a background in computers, I will practically just offer the advice I usually give to people, which is: none of what you do online is private in any real sense of the word, and you would do well to remember that.
Corner Stone
After reading the article, and the incredibly weak and suspect justifications quoted by officials in the administration, I come across this gem:
That seems handy.
And it’s my personal opinion that the contact is the content. And I’m with the organizations like EFF that are pushing for interpretation to go that way.
NobodySpecial
@General Stuck: Well, you know, I’d think you know me real well, except for the fact that A) You haven’t a clue, and B) You’re a confessed liar.
How’s that internet vacation going for you again?
Steeplejack
@Comrade Dread:
And you’re welcome to join me in sharing your emotions about how the world is going to hell, and this just feels like a part of that.
. . . Gotta blow for work. Will check back tonight to make sure all the issues have been worked out to everyone’s satisfaction.
NobodySpecial
@joe from Lowell:
Here’s the real problem I have with that. When you post an email in, say, Yahoo, you don’t see the IP address. When you read an email, you don’t see the IP address. So why would you consider it publicly available, if someone looking over my shoulder or at my email list can’t see the IP address of whomever sent it to me?
joe from Lowell
@Comrade Dread:
How odd. I don’t think it’s all fine and dandy.
I think you’re having a little trouble following what I’ve been saying.
Corner Stone
And not saying these two are related or anything:
NSA Project To Bring Thousands To Fort Meade
joe from Lowell
@NobodySpecial:
Think about an eleven-digit ZIP code.
01XXX-ABCD.
You can’t look at that and know what somebody’s address is, and yet, it’s providing all of the information you need to find it. You just have to match the code with the address, which is also public information.
The police could clearly copy down an eleven-digit zip code that is written on an envelope, right? Even if the sender was just sticking his note in a return envelope that had that Zip+ code on the outside.
Bella Q
I disagree and think that’s uncalled for. I might resent it a bit if I had that much investment in the matter. Hob makes a point:
Corner Stone
@joe from Lowell:
Man. What a knee-jerk statement.
joe from Lowell
No, exactly the statement called for based on the specifics of your comment.
Words: they mean things, not just convey emotions. Look them up.
Ruckus
@NonyNony:
If I could be guaranteed that only criminals and terrorists would be caught up in this, I’d be less skeptical of it. But then, if I could be guaranteed that it would only be used on criminals and terrorists, they probably wouldn’t need to be doing it without a warrant now would they?
This is the law’s side of if you’re not doing anything wrong you have nothing to worry about.
We’re not doing anything wrong, you have nothing to worry about.
I’m pretty sure that level of trust in any government is not warranted.
burnspbesq
@joe from Lowell:
Fuck you. Since when is a deeply held belief the same as a knee-jerk reaction?
And as I said yesterday in another context, “consistent with existing precedent” is not the same as “correctly decided.” The entire body of search-and-seizure jurisprudence went straight to hell beginning with Rakas in 1976. It’s all crap, and your willingness to accept is as the status quo speaks very badly of you.
See, unlike you, I stayed awake and paid attention in Con Law and Crim Pro.
Comrade Dread
@joe from Lowell:
You have been arguing that I and others are wrong and overreacting for thinking this is an unconstitutional invasion of privacy and our rights, that law enforcement is well within their rights to look into this information with reasonable suspicion, and that it is completely unorthodox as a matter of opinion to be worried about letting an agency writing its own subpoenas define what is a reasonable suspicion without external oversight.
So what part of this doesn’t translate into “Don’t worry about it, nothing to see here”?
burnspbesq
Just so there is no lack of clarity:
If the current state of the law is as Joe from Lowell describes it, then the law is thoroughly fucked up.
General Stuck
@NobodySpecial: Come over here and let stuck give ya a hug. ya big wookie.
Will Danz
Uh-oh!
POUTRAGE!
Cole is a fucking FIREBAGGER.
Get him, brave Dennis G.! Tell him what a pissypants Hamsher-loving bitch he is.
Bill Murray
@joe from Lowell: this might be the single dumbest statement in the whole thread, and that’s a much higher standard than reasonable suspicion
General Stuck
@NobodySpecial:
Shirley not.
burnspbesq
A useful reminder from Marc Ambinder:
Uncle Clarence Thomas
It’s Just One More Truly Historic Obama Legislative Win!
Uncle Clarence Thomas
@wilfred: FTW!
NobodySpecial
@joe from Lowell: There IS no ‘envelope’.
You can’t see the IP address of whom you’re sending it to when you write it, and they can’t see it when they receive it.
Corner Stone
@NobodySpecial: joe from LOL is doing his best to propagate state powers. He wants to use easy analogies that people can agree with, like “envelopes” and “post office mail”.
Has nothing to do with the topic at hand but you’ll notice some 80% of his posts speak to that nonsense.
sparky
@Will Danz: win?
@wilfred: win?
where’s that damn deciderer, anyways?