The Future of Tech And NSA Wiretaps

Tyler Too writes "Is there more to last week's story about President Bush authorizing wiretaps without court review? Ars Technica writes about what's going on behind the curtains with the National Security Agency's technology: 'When the truth comes out (if it ever does), this NSA wiretapping story will almost certainly be a story not just about the Constitutional concept of the separation of powers, but about high technology.'"

About the tapping itself...

[Quaoar]

The Bush administration really screwed up this time, and I'm saying this from a completely non-partisan point of view. The FISA court exists specifically for quick wiretaps when the government believes there is an immediate threat, and they even have a 72 hour period where you can get the tap authorized by FISA after the tap is placed. As far as I'm aware, they never even brought some of these cases before FISA.

The fact that they did this without even consulting the FISA court is completely illegal, and bypasses the checks and balances of our government. I don't think anything will happen to the prez, but this is really just disgusting.

Nothing new here... move along.

[tenchiken]

To try and keep this article from devolving similar to the last one, here are a couple of notes:

This really isn't anything new. In fact Carter used the Exact same Authority [fas.org] that Bush is using now. That executive order became Executive Order 12333 under Reagan in 1981. Gorelick also stated that Clinton used the same authority. From a CATO Report:
The Clinton administration claims that it can bypass the warrant clause for "national security" purposes. In July 1994 Deputy Attorney General Jamie S. Gorelick told the House Select Committee on Intelligence that the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes." [51] According to Gorelick, the president (or his attorney general) need only satisfy himself that an American is working in conjunction with a foreign power before a search can take place. . . .

FISA itself has ruled that:
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." http://www.opinionjournal.com/editorial/feature.ht ml?id=110007703 [opinionjournal.com]

Bush also pointed out that the 9/11 resolution gave him additional authority. Here is the verbage:
"use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons [...] "

The technology behind it all

[wilstrup]

We've read a lot about the network wiretapping technologies in use by the intelligence agencies, Carnivore, and similar At least one of the technology providers allows us to take a closer look at the actual technologies used. Unispeed openly claims [unispeed.com] to provide solutions to police and intelligence agencies. They'll even let you try the stuff for yourself [unispeed.com]

Re:How about a PGP phone?

[David McBride]

All the NSA (or some other attacker) need to do is sit between you and the person you're trying to call. You exchange keys with the NSA, the NSA exchanges keys with the other person, and everything else they can pretty much just relay verbatim -- listening in the whole time.

The only slightly tricky part of this is that the NSA have to convincingly imitate the other person when you're exchanging keys.

Classic Man-in-the-middle attack; see also http://en.wikipedia.org/wiki/Man_in_the_middle [wikipedia.org]

Anybody have a cache or text of referenced article

[MonkeyBoyo]

arstechnica.com cannot be found right now.

and the article is not in the google cache.

Re:muddy issues

[tenchiken]

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." http://www.opinionjournal.com/editorial/feature.ht ml?id=110007703 [opinionjournal.com]

Hmm. Judicial review disagrees with you. Unfortunitly their opinions matter.

Re:About the tapping itself...

[peculiarmethod]

how's this for informed?

"Now, by the way, any time you hear the United States government talking about wiretap, it requires-a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution."

George W Bush
April 20, 2004

Here is his full statement from that day:

http://usinfo.state.gov/is/Archive/2004/Apr/21-381 [state.gov] 579.html

Re:Terrorist activity

[ghstomahawks]

Dictionary.com defines terrorism as- "The unlawful use or threatened use of force or violence by a person or an organized group against people or property with the intention of intimidating or coercing societies or governments, often for ideological or political reasons." The sort of people who drive metal stakes into trees so that any chainsaw (and more than likely person) who tries to cut down the tree get destroyed are terrorists. They are using that violence to try and influence change. Be it in the society or government, they try to influence the political workings of wherever they are. Setting it up so somebody gets viciously hurt is an attempt at intimidation. Face it, the term "eco-terrorism" has been around forever (or for quite a while, you know what I mean)

Re:Nothing new here... move along.

[temojen]

"Now, by the way," he said, "any time you hear the United States government talking about wiretap,

Well, that's when you don't count the top secret warrantless taps, which they weren't talking about because they're top secret

Re:How about a PGP phone?

[zoloto]

The mods here don't know anything about pki to have modded this up so high. The NSA would also have to have each senders private keys to decrypt the messages. This is extremely difficult if proper security is used with each users private keys.

http://en.wikipedia.org/wiki/PKI [wikipedia.org]
http://en.wikipedia.org/wiki/PGP [wikipedia.org]
http://en.wikipedia.org/wiki/GPG [wikipedia.org]

For those that haven't been keeping up...

[remove office]

You can read a summary of the past 5 years of spying on Americans in their own country here [thedailybackground.com]. Included are reasons why Ashcroft chose the N.S.A. instead of the F.B.I. and a timeline of the whole complicated story.

Re:Nothing new here... move along.

[cbh]

Right, nothing to see here except the usual pro-Chimp smokescreen. Clinton didn't violate FISA:

from http://thinkprogress.org/2005/12/20/the-echelon-my th [thinkprogress.org]

The Echelon Myth

Prominent right-wing bloggers - including Michelle Malkin, the Corner, Wizbang and Free Republic -- are pushing the argument that President Bush's warrantless domestic spying program isn't news because the Clinton administration did the same thing.

The right-wing outlet NewsMax sums up the basic argument:

        During the 1990's under President Clinton, the National Security Agency monitored millions of private phone calls placed by U.S. citizens and citizens of other countries under a super secret program code-named Echelon...all of it done without a court order, let alone a catalyst like the 9/11 attacks.

That's flatly false. The Clinton administration program, code-named Echelon, complied with FISA. Before any conversations of U.S. persons were targeted, a FISA warrant was obtained. CIA director George Tenet testified to this before Congress on 4/12/00:

        I'm here today to discuss specific issues about and allegations regarding Signals Intelligence activities and the so-called Echelon Program of the National Security Agency...

        There is a rigorous regime of checks and balances which we, the Central Intelligence Agency, the National Security Agency and the FBI scrupulously adhere to whenever conversations of U.S. persons are involved, whether directly or indirectly. We do not collect against U.S. persons unless they are agents of a foreign power as that term is defined in the law. We do not target their conversations for collection in the United States unless a FISA warrant has been obtained from the FISA court by the Justice Department.


Meanwhile, the position of the Bush administration is that they can bypass the FISA court and every other court, even when they are monitoring the communications of U.S. persons. It is the difference between following the law and breaking it.

Re:Great movie ...

[Philip K Dickhead]

Orwell also had great exposure to the super-totalitarian government of post-war Burma.

Re:The question is, WHAT did they want to do...

[slavemowgli]

The FISA court has only turned the government down, what, twenty times in thirty years?

Actually, even less than that. Quoting Bruce Schneier: "In all that time, only four warrant requests were ever rejected: all in 2003." And "all that time" here actually does refer to the entire period of time where that secret kangaroo court existed.

Re:Anybody have a cache or text of referenced arti

[vik]

I wish I had, then I might be able to make some sensible comment on it.

Sadly, Arstechnica does not currently appear in DNS space visible from New Zealand, as of a few hours ago. I have retreived an IP address from cache and tried to traceroute to it, but no joy.

I too would like to see a cached copy. Anyone?

Vik :v)

Re:Great movie ...

[Anonymous Coward]

I would argue that Gilliam drew heavily from "1984".

You would argue correctly: the working title of Brazil was "1984 and a half."
I heard they had to change it to something else when it came out that a major
studio was doing their own (doublethink!) version of "the real" 1984. hrm.

Did someone pull the plug at Server Central?

[apurtell]

Slashdot effect, or did someone pull the plug at Server Central?
Where did I put my tinfoil?

% whois arstechnica.com
Domain servers in listed order:
NS1.SERVERCENTRAL.NET 64.202.100.113
NS2.SERVERCENTRAL.NET 64.202.96.102
% host arstechnica.com 64.202.100.113 ;; connection timed out; no servers could be reached
% host arstechnica.com 64.202.96.102 ;; connection timed out; no servers could be reached
% traceroute-nanog -A -O -U 64.202.100.113
  1 ...
  2 ...
  3 ...
  4 dist4-vlan60.irvnca.sbcglobal.net (67.114.50.66) [AS7132] [e-mail] 14 ms
  5 bb2-g2-0.irvnca.sbcglobal.net (151.164.41.239) [AS7132] [e-mail] 45 ms
  6 bb1-p3-0.irvnca.sbcglobal.net (151.164.191.205) [AS7132] [e-mail] 12 ms
  7 151.164.42.77 (151.164.42.77) [AS7132] [e-mail] 16 ms
  8 core1-p8-0.cranca.sbcglobal.net (151.164.241.225) [AS7132] [e-mail] 13 ms
  9 core2-p11-0.crscca.sbcglobal.net (151.164.242.81) [AS7132] [e-mail] 44 ms
10 bb1-p8-0.crscca.sbcglobal.net (151.164.40.62) [AS7132] [e-mail] 27 ms
11 ex2-p5-0.eqsjca.sbcglobal.net (151.164.41.109) [AS7132] [e-mail] 33 ms
12 unknown.sjc.scnet.net (66.225.245.237) [AS23352] [e-mail] 29 ms
13 ge0-3-0.j1.sjc.scnet.net (64.202.104.230) [AS23352] [e-mail] 26 ms
14 ge-3-0-1.3940.j2.ord.scnet.net (205.234.205.97) [AS23352] [e-mail] 66 ms
15 * * *
16 * * *
17 * ^C
% whois scnet.net
Administrative Contact:
      Server Central Network
      Customer Owned Domain ([e-mail])
      +1.3128291111
      Fax: [phone]
      2002 West Chicago Ave
      PMB 101 / Hostmaster
      Chicago, IL 60622-5548
      US
% whois scservers.com
Administrative Contact:
      Server Central
      Domain Customer Owned ([e-mail])
      +1.3128291111
      Fax: [phone]
      2002 W Chicago Ave PMB 101
      Chicago, IL 60622
      US

Re:muddy issues

[zippthorne]

If you're not FOR socialism, and you're AGAINST capitalism, and instead of pointing out whatever third option you are for, you malign the poster as some kind of uncle tom, then you must be a seditious malcontent with no idea of what you really do want, except to complain. At least the socialists are wrong. You're not even wrong.

Re:About the tapping itself...

[Linux_ho]

Well, Mr. Legal Eagle, if you look at the section that talks specifically about warrantless surveillance, it specifically says that a warrant is required for US persons, foreign agent or not. See section 1802(a)(1)(B):
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party

And some gov'ts terrorize eco groups: France

[AHumbleOpinion]

And by that definition most governments are terrorists as well.

Like when France conducted paramilitary operation against Greenpeace, attaching a mine to their boat, killing one crewmember?

"Initially, the French government denied all knowledge but it soon became obvious that they were involved. Soon French Prime Minister Fabius appeared on television to tell a shocked world, "Agents of the DGSE (Secret Service) sank this boat. They acted on orders." The French Minister of Defence resigned. Six weeks later in New Zealand, the preliminary hearing in the trial of agents Prieur and Mafart began in Auckland. It was expected to last for weeks but a deal was struck before the agents entered the courtroom. In just 34 minutes, they pleaded guilty to charges of manslaughter and wilful damage, attracting sentences of 10 and 7 years to be served concurrently. A UN negotiated settlement meant that the two agents were transferred to Hao atoll, a French military base in French Polynesia to serve their time."

http://www.greenpeace.org.au/rainbow_warrior/bombi ng_of_1985/intro.html [greenpeace.org.au]

"A New Zealand court found two members of the French Secret Service guilty of manslaughter. Although they were sentenced to 10 years in jail, both were free within two years. One was smuggled out of Tahiti under a false identity."

http://www.greenpeace.org.au/rainbow_warrior/bombi ng_of_1985/death_of_crew_member.html [greenpeace.org.au]

Re:About the tapping itself...

[Azreal]

In 1978 there was this little law passed called Foreign Intelligence Surveillance Act. Basically, it provides the means for the federal government to issue domestic surveillance. The catch is you need a warrant approved by the court. You might argue, as the Dubya seems to have, that expediency doesn't allow the time it takes to get such a warrant. Ahh, but they already thought of this and put in a clause where they can do the wiretap and get the court order something like up to 3 days later. Fact is, a warrant requires a certain amount of probable cause to be issued, before or after the fact, and if some of the news stories are true, some of these wiretaps might not have even met the minimum requirements for a warrant.
It's the law stoopid and unlike Steven Seagal, the president is not above the law. If a strict interpretation of these laws are followed, this could be an impeachable offence, hence Dubya has been rolling out the P.R. machine the past few days.

Re:muddy issues

[Ohreally_factor]

You're saying that criticism is not permitted if the critic cannot offer or espouse a competing solution or ideology? Bull.

Furthermore, you're creating a false dichotomy: Socialism is wrong, therefore Capitalism is right. Or vice versa. Similarly, one who criticizes certain aspects of capitalism as practiced (concentration of wealth, for example), must be anti-Capitalism. This "All-or-Nothing" thinking is illogical and flawed.

I'm curious as to whether you think the Open Source movement and methodology is "Communist", or if you prefer to ignore its social, economic, and political ramifications.