February 6, 2006 4:00 AM PST

Some companies helped the NSA, but which?

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(continued from previous page)

Global Crossing spokesman Tom Topalian said "99 percent of wiretapping is done at a local phone company level" instead of at backbone providers. Topalian declined to answer questions about NSA access, and added: "All U.S. carriers have to comply with the CALEA act, and Global Crossing complies with CALEA." (CALEA is a 1994 federal law requiring certain telecommunications providers to make their networks wiretap-friendly for domestic law enforcement, not intelligence agencies.)

Videos:
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No warrant required
Attorney General Alberto Gonzales testifies.

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Is NSA spying legal?
Sen. Patrick Leahy
attacks NSA spying.


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Examining wiretaps
Sen. Arlen Specter
quizzes Gonzales.

Rep. John Conyers, D-Mich., last month sent a letter (click for PDF) to companies including Google, Yahoo, EarthLink, Verizon and T-Mobile asking them if they cooperated with the NSA. News.com asked similar questions, but expanded the number of companies to include backbone and submarine cable providers.

Among the companies that responded, some offered far more detail than others. Les Seagraves, EarthLink's chief privacy officer, said: "We've never even been asked to give information without the benefit of a subpoena or a court order behind it. And our policy is to require a subpoena or court order, basically to require a court of law behind the inquiry."

"We're very interested in protecting our customers' privacy and balancing that with our duties to comply with the law," Seagraves added. "Our way to balance that is to definitely make sure we have a valid legal request before we release any information."

Comcast spokesman Tim Fitzpatrick said the company "will only provide customer information pursuant to a valid court order and only if Comcast's records contain information sufficient to identify the customer account on the (date or dates) listed in the court order."

A representative of Cox Communications, David Grabert, said: "Cox has never received a request for information or a wiretap that was not accompanied by a warrant."

NSA's history of industry deals
Louis Tordella, the longest-serving deputy director of the NSA, acknowledged to overseeing a similar project to intercept telegrams as recently as the 1970s. It relied on the major telegraph companies including Western Union secretly turning over copies of all messages sent to or from the United States.

"All of the big international carriers were involved, but none of 'em ever got a nickel for what they did," Tordella said before his death in 1996, according to a history written by L. Britt Snider, a Senate aide who became the CIA's inspector general.

The telegraph interception operation was called Project Shamrock. It involved a courier making daily trips from the NSA's headquarters in Fort Meade, Md., to New York to retrieve digital copies of the telegrams on magnetic tape.

Like today's eavesdropping system authorized by Bush, Project Shamrock had a "watch list" of people in the U.S. whose conversations would be identified and plucked out of the ether by NSA computers. It was intended to be used for foreign intelligence purposes.

Click for info-graphic

Then-President Richard Nixon, plagued by anti-Vietnam protests and worried about foreign influence, ordered that Project Shamrock's electronic ear be turned inward to eavesdrop on American citizens. In 1969, Nixon met with the heads of the NSA, CIA and FBI and authorized a program to intercept "the communications of U.S. citizens using international facilities," meaning international calls, according to James Bamford's 2001 book titled "Body of Secrets."

Nixon later withdrew the formal authorization, but informally, police and intelligence agencies kept adding names to the watch list. At its peak, 600 American citizens appeared on the list, including singer Joan Baez, pediatrician Benjamin Spock, actress Jane Fonda and the Rev. Martin Luther King Jr.

Details about Project Shamrock became public as part of a Senate investigation of the NSA. Telegraph companies participating in the program initially balked when questioned by Senate investigators. But documents turned over by the NSA "cast doubt on the veracity of the companies' claims that they could find no documentation pertaining to Shamrock," wrote Snider. "After all, this had concerned the highest levels of their corporate management for at least four years."

Another apparent example of NSA and industry cooperation became public in 1995. The Baltimore Sun reported that for decades NSA had rigged the encryption products of Crypto AG, a Swiss firm, so U.S. eavesdroppers could easily break their codes.

The six-part story, based on interviews with former employees and company documents, said Crypto AG sold its compromised security products to some 120 countries, including prime U.S. intelligence targets such as Iran, Iraq, Libya and Yugoslavia. (Crypto AG disputed the allegations.)

"Only a very few top executives"
The extent of the NSA's surveillance project in operation today remains unclear. Attorney General Gonzales has stressed that the program intercepts e-mail and phone conversations only when "one party to the communication is outside the United States."

In his book titled "State of War," New York Times reporter James Risen wrote: "The NSA has extremely close relationships with both the telecommunications and computer industries, according to several government officials. Only a very few top executives in each corporation are aware of such relationships."

Tapping into undersea copper and fiber-optic cables where they make landfall would be one way to create a virtual web of surveillance that can snare Internet packets or voice communications when they traverse U.S. borders. One benefit for the government is that one participant in the conversation is likely to be overseas--permitting Gonzales and the NSA to stress the interception's international nature.

Another method would be to seek the cooperation of backbone providers with networks entirely within the United States. That could be done with a tap hooked up to the switches at a telephone company or backbone provider, said Phill Shade, a network engineer for WildPackets who is the company's director of international support services. WildPackets sells network analysis software.

"The tap essentially splits off a copy of the traffic--it would literally take a copy of all the traffic as it moves through the wire," Shade said. "Picture a capital letter 'Y' in your head...One copy goes back out the regular wire on the right side of the wire, and the copy you're interested in splitting goes off the left side of the Y to you. These are very common networking devices, used in networks all over the world."

The tap's exact location may matter. Sen. Arlen Specter, a Pennsylvania Republican who is convening Monday's hearing, has asked Gonzales to respond to a series of questions about the legality of the program. One question Specter is posing: If intercepted calls are "routed through switches which were physically located on U.S. soil, would that constitute a violation of law or regulation restricting NSA from conducting surveillance inside the United States?"

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77 comments

Join the conversation!
Add your comment
Some companies helped the terrorists
Companies likes CNET/NEWS.COM for disclosing to terrorists which communication networks might not be montitored.

This borders on treason. The New York Times has violoated the Espionage Act by illegally disclosing the existence of a classified program. The Times will have its day in court and CNET comes dangerously close to the same legal jeaporadies by identifying communiation networks which are not participating in the NSA's terrorist survelliance program.

CNET -- you could have posted the survey results with general answers, but no you had to go the extra mile and identify the communications networks that are not participating.

Let's just give the terrorists their own private communication network while we're at it so that they too can have a right to privacy while they discuss how to murder us.
Posted by Kellino (36 comments )
Reply Link Flag
Thank You CNET.com
thank you, cnet.com, for letting me know that it appears that my communications provider (cox comm) is not run by a bunch of traitors who don't respect the constitution and laws of this great country of ours.

mark d.
Posted by markdoiron (1138 comments )
Link Flag
Well said
"Let's just give the terrorists their own private communication network while we're at it so that they too can have a right to privacy while they discuss how to murder us."

Its a good thing this press wasnt around in WW2.
Posted by (402 comments )
Link Flag
Silly.
The argument that someone is treasonous for
disclosing which communications networks are
monitored is off the mark.

First, any person engaged in a covert activity
such as the hypothetical scenario of a terrorist
organizing an attack will a priori assume that
any and all communication channels are subject
to monitoring and interception and then plan
accordingly. Monitoring communications channels
is merely done for the purpose of due diligence,
not because you expect to obtain useful
information out of it. Recent testimony to
congress has indicated that current and past
surveillance has to date, turned up no actual
leads and a rate of about 10 "suspects" per year
(all of which have proven to be false positives
so far).

Second, "treason" is quite specifically (under
US law) attempted violent overthrow of the
government. Espionage, improper disclosure of
classified information, etc. has never amounted
to treason in the US.
Posted by Zymurgist (397 comments )
Link Flag
Cnet did nothing of the sort
Mr. Kelling,

Your comments are some of the most anti-American I've ever heard. There is a cherished document we call The Constitution. It guarantees our rights as citizens, and Cnet's rights as the press. I suggest you read it some time, especially the first and fourth amendments.

And your defense of Bush by blaming Clinton is ludicrous. Two wrongs don't make a right.
Posted by R. U. Sirius (745 comments )
Link Flag
You're hilarious Kevin!
CNET & NYTIMES is violating the Espionage Act??? Huh??? How's that Kevin? Benj. Franklin must have been a traitor too when he posted anti-government journalism to Philly newspapers as Silas Dogood. "The pen is mightier than the sword". We Americans have a right to know that our laws are being potentially violated by our alleged President and his arguably crooked administration.

Journalist violating the Espionage Act would be more like a certain right-wing journalist outting a CIA officer and getting one of her field agent's allegedly K.I.A. by his big stupid mouth. And why? All to further his WH handlers secret agenda to embarrass her husband who actually proved that their hidden agenda in SW-ASIA was all totally bogus! And then one of those WH "handlers" goes totally scott-free with the agent's blood STILL on his hands!

Get over it... spies of all stripes know how to secretly read, watch tv, do library research, Google, etc. without anyone actually noticing. They don't have to read the NYTIMES or CNET to reactively develop their "marching orders". They just have to go to Rev. Sun Yung Moon's newspaper (Washington Times) or Rupert Murdoch's TV station (FOX NEWS) for that. Liberal media indeed! That was slightly tongue-in-cheek now...

Thinking that terrorists are using cellphones, Nextels, Internet, postal mail, and email to do their covert planning and operations is just typical right-wing propaganda for the American sheeple to digest. The real "dosmetic spying" program IMO has another purpose totally unrelated to the so-called war on terrorism. I'm only guessing of course...

Is that alleged San Diego telephone call you keep harping on anything like the telephone call Colin Powell played for the UN to PROVE that Iraq had WMDS??? Yeah SoundForge works real good don't it?
Posted by SpookySr (3 comments )
Link Flag
It's NOT a domestic spying program
The focus is on international calls originating from the U.S., not on the average American citizens as the desperate Dems would like you to believe. Straight from the Clinton playbook, the liberals or Dems continue to spin their lies so that eventually they become half-truths or myths. Fortunately, the majority of Americans didn't fall for it this time.
Posted by (50 comments )
Reply Link Flag
domestic surveillance program
Did you actually read the article? We quoted Gonzales on this point and linked to his full statement. Excerpt from our article:

Attorney General Gonzales has stressed that the program intercepts e-mail and phone conversations only when "one party to the communication is outside the United States."
Posted by declan00 (848 comments )
Link Flag
bull-oni !!
I pratically have had the contents of my emails smeared in my face... wide ranges of people have been labled suspects for various socio-politico reasons... even though terrorism may be the last thought in their minds....
Posted by freq (121 comments )
Link Flag
Doesn't Matter--Falls Under FISA
everyone who thinks that taking the position that this is "not a domestic spying program" holds any relevance at all to the legality/illegality of these acts should read what fisa says. i suggest starting here:

<a class="jive-link-external" href="http://www.epic.org/privacy/terrorism/fisa/" target="_newWindow">http://www.epic.org/privacy/terrorism/fisa/</a>

bottom line: he could have gotten warrants even after the fact, he could have asked that the law be changed. instead, he acted entirely without warrants, and he helped rewrite the patriot act in such a way that it does not afford him the additional "powers" he's chosen to exercise.

mark d.
Posted by markdoiron (1138 comments )
Link Flag
Not quite.
Bush initially used the term domestic
surveillance to refer to his executive order
because it did four things: authorize monitoring
outbound international calls, authorize
monitoring of domestic calls for those making
international calls, authorize monitoring of
calls made by persons contacted by those making
the the international calls (whether or not they
themselves made international calls), and
authorized disregard for the FISA warrant
requirement of US law.
Posted by Zymurgist (397 comments )
Link Flag
if it quacks...
..like a duck and walks like a duck...
Posted by marileev (292 comments )
Link Flag
Yellow Press !!!
Come on CNET. As much as I enjoy reading your stories, I can't stand your "yellow press" coverage of the wiretapping of suspicious conversations.

Why don't you focus on the details of what goes on with this program. It listens to conversations of suspicious people living in the US and tracks their conversations abroad as well as their activities within the US. It doesn't listen to domestic conversations of regular americans.

Cut the nonsense. Report the truth !!!
I'm starting to believe that George Soros and his whole Air America team of clowns are running CNET.

Come on guys, get back on track.
Posted by Dead Soulman (245 comments )
Reply Link Flag
Ask the Shakers...
FWIW - A Quaker church in Florida that had
recently been fingered by the Department of
Defense as a credible terrorist threat would beg
to differ. Why did the DoD single them out, even
going so far as writing a 400-page dossier on
the church and its members? Well, apparently
they were overheard planning to picket in front
of a local high-school to protest the presence
of military recruiters there.

Mind you, this was done as part of the TALON
program, which existed prior to the NSA debacle,
but you have to ask yourself why the US
government runs a program whose charter is to
"neutralize political dissidents" within the US
and then goes around spying on churches and
church members that exhibit anti-war views.

So, yes, the government does appear to monitor
domestic communications and groups. Perhaps they
restrict their surveillance to dangerous groups
like these celibate Floridian peaceniks, but
it's wishful thinking to say it doesn't happen
with a broader scope.

This doesn't have anything to do with
Republicans or Democrats -- they are the
effectively the same with regard to this debate.
Posted by Zymurgist (397 comments )
Link Flag
yellow, schmellow
It appeas that you are so blinded by ideology (i.e. that anything
that smacks of criticism of the administration must be the
devious work of the "liberal" media) that you don't follow your
own advice: focus on the details of the program.

As was reported yesterday in the Washington Post, it appears
that a huge range of conversations are being monitored under
the program. Certain ones get flagged for more intensive
review. Of these, a high percentage have proved to be
completely useless. They are fishing, in other words. If course,
you probably discount anything the Post says.

And then, you ignore the real problem here: all of this is being
done without clear legal authorization. They feel no need to
seek a warrant and instead claim dubious war powers. If this
program is so vital, then get clear authority to do it.

FISA was set up because the FBI and intellegence services were
used to eavesdrop on domestic targets, such as MLK. If the
power exists unchecked, it will be misused. Just because *you*
may trust the current administration does not mean that there
should not be safeguards. There should be oversight by the
other branches of government.

Already, there are separate stories about student anti-war
groups being monitored as part of the effort to combat
"terrorism." If we don't learn the lessons of the past
(McCarthyism, etc) we are doomed to repeat our mistakes.
Posted by Thrudheim (306 comments )
Link Flag
How do you know?
&gt; It listens to conversations of suspicious
&gt; people living in the US and tracks their
&gt; conversations abroad as well as their
&gt; activities within the US.

Source please?
Posted by R. U. Sirius (745 comments )
Link Flag
a different spectrum
if this were totally slanted, then CNet News.com wouldn't allow this open discussion. Kudos for freedom of expression.
Posted by marileev (292 comments )
Link Flag
I Believe It Listens to All Int'l Comm's
actually, i believe that it initially listens to virtually ***ALL*** international communications, then choses from there those that require further monitoring. at this point, since it treads so heavily on the constitution, the administration choses not to seek warrants that could be otherwise easily obtained. if they didn't monitor all communications the program wouldn't be as effective. but that's the thing with surveillance: if you can keep track on everything that everyone does, you'll have a very peaceful, secure country. and one that is unrecognizable to our founding fathers.

mark d.
Posted by markdoiron (1138 comments )
Link Flag
Logical
Logical, for no company, wants to leave itself wide open to deliberate admission to the illegal breaches of the various state and federal privacy acts in force throughout the country!

As for the NSA monitoring, of all local communications, history tell us this program became reality after the innauguration of the current encumbent in 2000, at 1600 pennsylvania avenue(previous programs by past president's all were subject to the 1968 spy act, something that his cronies who seek to abuse the system on a daily basis on the basis the ends justifies the means and the means justify the ends, fail to omit in their public dialogue)

the following two statements apply here!

1/Those who give up essential liberties for temporary safety deserve neither liberty nor safety. - Benjamin Franklin

2/Government is not reason; it is not eloquence; it is force! Like fire, it is a dangerous servant and a fearful master. - George Washington
Posted by heystoopid (691 comments )
Reply Link Flag
Ben Franklin misquoted again
Actually Franklin's original quote in 1755 says "a little temporary safety".

Is having a conversation with a suspected terrorist overseas an "essential" liberty? What is "essential" lierty?

To answer this question it is instructive to review Franklin's activities in espionage.

The CIA has a good history at the link below. He was one of the premier intelligence agents of the Revolutionary War and was appointed by the Congress to review and publish intercepted communications from England.

<a class="jive-link-external" href="http://www.cia.gov/cia/publications/warindep/intro.shtml" target="_newWindow">http://www.cia.gov/cia/publications/warindep/intro.shtml</a>
Posted by Kellino (36 comments )
Link Flag
Does this make sense?
Now it's starting to make more sense.

If what dictates probable cause is not contacts in a cellphone,
but computer sniffing, arguing for probabe cause would
probably be considerably harder.

This person fit our model and has a 79% chance of engaging in
suspicious activity. That's what you would want to move on if
you've got a big net and you're looking for the best leads.
Probabilistic. But try passing that by a court.

I'll bet it's the process that leads to actual surveillance that
would fail to fetch warrants.

The open question remains why the admnistration has chosen to
keep even the few people it briefs in congress largely in the
dark. (And, of course, why no effort has been made to seek
approval or real oversight.)
Posted by mgreere (332 comments )
Reply Link Flag
Kept In the Dark?
The charge that Congress has been kept in the dark is erroneous and misleading.

First of all, a review on the Constitution reveals what level of authority Congress has over the collection of foreign intelligence.

They have the power of the purse and that's it. Interesting isn't it, that no Senators are calling to use the only authority that they do have and kill funding for the program. I wonder why...

Second, the Bush Administration has briefed the Senate Foriegn Intelligence committee on this pogram on numerous occasions. Sen. Rockerfeller sits on this committee and documented his concerns and put them in a sealed enevelope until this opportunity.

The only members of Congress that were "kept in the dark" are those who do not sit on the Senate Foreign Intelligence Committee.

Now why should a classified program be revealed to these individuals who are neither experts in the matter nor have any Constitutional oversight in the matter? Can we honestly expect Congressmen to keep secrets to themselves? That's a good one.

And why does the Bush Administration need to "seek approval" for something Carter, Reagan and Clinton did as well. I bring up Clinton because the survelliance under that administration was truly domestic and this was before the 9-11 attacks woke us up to the true danger of the terrorist threat.

From United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984):

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

Indeed as I pointed out in another post on this topic, the Clinton Administration argued that to deny the executive the ability to perform these executive searches would be unconstitutional:

As Andrew McCarthy points out:

The Clinton OLC asserted, among other things, that even though the criminal wiretap statute (18 USC Sec 2510 et seq.) purports to limit the executive branchs ability to disclose wiretap information, the President was free to ignore those statutory provisions where limiting the access of the President and his aides to information critical to national security or foreign relations . . . would be unconstitutional as applied in those circumstances.

<a class="jive-link-external" href="http://corner.nationalreview.com/06_01_29_corner-archive.asp#089313" target="_newWindow">http://corner.nationalreview.com/06_01_29_corner-archive.asp#089313</a>
Posted by Kellino (36 comments )
Link Flag
I*m Shocked, Shocked That NSA Eavesdrops On Intl E-Comms
Wake up and smell the coffee wafting out from behind the double finger-stock 120 db e-sealed Black Velvet Curtain, CNETizens. Would Captain Renault be shocked, shocked that there is gambling going on in Las Vegas or in the back room at Ricks Place?

The National Security Agency has been eavesdropping on and monitoring all global, international electronic communication emissions from the middle of that Maryland cow pasture since By memorandum of October 24, 1952, President Truman established the National Security Agency (NSA) as the organization within the U.S. Government responsible for communications intelligence (COMINT) activities.

Why is anyone shocked, shocked that the NSA in eavesdropping on any and all phone calls and Internet packets going to and fro on links between domestic and international communication nodes? That is the precise job Give Em Hell Harry Executive Ordered them to do.

There is a good reason why knowledgeable folks say the NSA acronym really stands for NEVER SAY ANYTHING. That is, never say anything over the phone, FAX or Internet you do not mind the government reading or listening to.

<a class="jive-link-external" href="http://news.bbc.co.uk/1/hi/world/europe/820352.stm" target="_newWindow">http://news.bbc.co.uk/1/hi/world/europe/820352.stm</a>

The 64 Trillion U$D BLACK BUDGET question is, when does a *Terrorist Surveillance Program* cross the Constitutional line and become a *Domestic Eavesdropping Program*?

I shall be waiting with bated Techno-Geek breath for A glimpse at the technical details of how the National Security Agency's electronic surveillance system seems to work, when Part Two of this Declan and Anne series is launched onto the Web tomorrow. JP B-)
Posted by Catgic (106 comments )
Reply Link Flag
comcast
At least comcast is not giving away personel information.
I have no problem with monitoring provided it is conducted in a legal manner with provisions in place to protect americans rights. I'm all for monitoring targets that are linked to known factions in the middle east who are a national security threat to the United States and our allied friends around the world.
Posted by solarflair (35 comments )
Reply Link Flag
For What End id the Monitoring?
It would be easier to accept the sincerity of this bunch of "spies" if they were truly making an effort to make us safe through our seaports and our borders, however all I can do is laugh when they say they are monitoring phone calls for our safety! HAHAHAHAH
Posted by (17 comments )
Link Flag
Americans need to know-marketplace response
As a free market economy there are many factors which dictate the economic ebb and flow of the economy. This is a verifiable factor, just as companies greasing the coffers of politicians or which places use cruelty free products. We need to know.

Email's transitory stops don't secure your message, these packets can be intercepted by the government, maldoers, whomever: <a class="jive-link-external" href="http://www.essentialsecurity.com/Documents/article12.htm" target="_newWindow">http://www.essentialsecurity.com/Documents/article12.htm</a>
Posted by marileev (292 comments )
Reply Link Flag
Response to Michael G
Couldn't respond so starting a new thread...

Yes it is sad that we're still here isn't it :) My excuse is that I'm home helping my wife recover from surgery and I'm finding this more rfreshing than indulging in computer geek stuff :)

I think have a better appreciation for your concerns, but I still feel that some of them may be ill-founded.

For example you said "Had FISA never been passed, Gonzales' case would be a lot stronger (and the president wouldn't have any laws to break). But FISA exists, and so it appears that he has broken the law."

But the legislation is never the final authority. That is reserved for the Constitution. Warrantless survelliance has yet to be struck down by the courts but this specific program from the Bush Administration hasn't been heard yet.

No law will be upheld if it is found to be unconstitutional within the specifics of the case brough before the court.

You concluded with "Still, I don't really care about whether it's legal in the technical sense. I care that we have two fundamental elements of
our democracy being largely ignored. 1. Checks and balances. 2. Federal law."

My opinion but it seems to be like you might be contradicting yourself here. How can you not care about whether it is legal in the technical sense and only be concerned with checks and balances and Federal law. Isn't that all the same thing?

And in the system of checks and balances, Congress is given the authority to delcare war, has the power of the purse, and the Senate can ratify treaties. The Executive exeucutes -- especially when it comes to foreign intelligence. The courts have oversight into the legality of such programs and again -- so far the courts have upheld warrantless searches by the Executive for national security. It seems to me that the checks and balances put in place by the Framers are working as intended.

The comment I made about Anti-American rehetoric was in response to someone elses comments.

Anyways that's my $.0.02 thus far.

It does appear that there is need for clarity on FISA and you mentioned some of the reasons. Hopefully Congress will stop posturing and start legislating.

My biggest objection is to the way the media has framed the case. You've seen on this forum all those who insist that the 4th Amendment is absolute -- which is ironic because liberals are rearely strict constructionalists when it comes to the Constitution.

People need to tone down the rhetoric and try to understand better before they start making accusations -- and that includes Senators :) This is Consitutional Law we are talking about so it's not easy and I don't think the media has done a very good job at educating on the matter.

I also stand by my original post that CNET's decision to publish this information was unneccessary, unhelpful and in doing so they are following in the footsteps of the NY Times which may find itself facing charges of violating the Espionage Act when this is all over.

What great value did posting this information serve, while the legality of the program is being discussed in Congressional hearings? Seems to me it didn't do much other than give terrorists information as to which communications networks are more secure for their nefarious purposes. Why would we want to release information which makes it easier for terrorists to communicate more securely? It seems that some are so convinced this activity is legal -- while hearings are transpiring -- that they think somehow they are doing us all a favor by publishing this. Now that's irony and it's also very dangerous.
Posted by Kellino (36 comments )
Reply Link Flag
More legal background
November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

The Truong court [http://United States v. Truong Dinh Hung, 4th Cir. 1980|http://United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** 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.
Posted by Kellino (36 comments )
Link Flag
Are You Scared Yet?
Kevin, you should be ashamed, you still think there is a boogey man, and that GW can keep you safe, without applying any security at our ports or at our borders....
All I can say to you is BOO!
Posted by (17 comments )
Reply Link Flag
Kelling works for the RNC
"His" astroturf is all over the net.
Posted by R. U. Sirius (745 comments )
Link Flag
One thing is for sure....
.... Kelling does have an incredibly large bias. I just wish I had any
feeling at all that he knows what he is talking about.
Posted by Earl Benser (4310 comments )
Reply Link Flag
I am biased :)
So instead look at the case law I quoted from federal court decisions.

Look, I think there's three verifiable facts that we can all agree on:

1) The *current* NSA program has not been tested in the courts

2) In the post-FISA era virtually every court that has addressed the issue of warrantless searches by the Executive has ruled that national security constitutes an exception to the warrant requirement of the 4th Amendment. Additionally, the courts have ruled -- as recently as 2002 -- that legislation --specifically FISA -- can not be construed to place limits on the President's Consitutional powers.

(I've quoted the case law which supports this on this in other posts)

3) George W. Bush is the 4th US President to perform warrantless searches of electronic communications for national security.

Now most of the media converage has focused either on possible FISA violations, or an absolutist interpretation of the 4th Amendment (rejected by the courts).

Did the program violate FISA? Perhaps -- but in my opinion we need to know the technical details of the program before conclusions can be made here.

Then there is the argument -- used by Gonzales -- that Congressional approval is implicit in AUMF. This argument is certainly debatable to say the least. I think that Congress should act act provide clarity here.

Also much of the coverage has focused on the "why didn't the President just ask for FISA warrants" argument which as I (and the courts) pointed out leaves gaps not to mention an unsustainable legal workload (or "unduly fustrate" the Executive's powers as the courts have refered to it).

This takes us back full-circle to the Constitutional argument. And all the case law we have on this issue dealt with INTERNAL communications. So based on legal precedent (case law), it's hardly a stretch in my opinion that the courts would rule that monitoring of International-to-Domestic (or vice-versa) phone calls is a Constitutional power of the Executive that can not be limited by legislation.

And that's my judicial opinion. We can debate this all we want on how to interperet the Constitution but that's what judges are for. Somehow I doubt that even a Supreme Court decision would fail to bring closure to the matter for many.

In any case, based on the case law history that we do have to work with *I* -- my opinion -- I feel confident that were the courts to review the program it would be deemed constitutional --whether or not it violates FISA provisions.

I beleive the NSA program was necessary and legal. I think the NSA not intercepting the Yemen-to-San Diego calls to a 9-11 hijacker is a strong argument and I would further argue that any President that did NOT close this gap should be impeached for not upholding their Consitutional responsibility to protect the Republic. And I also beleive that CNET's publication of network participation was unnecessary and irresponsible.

Now if the NSA program were ever extended to monitor domestic-domestic calls I would like to see an independent entity appointed to review the program for abuses on a regular basis, for example how Democrats (Kennedy/Hoover) wiretaped MLK.

I think this is why the Bush Administration chose not to monitor domestic-domestic communications (which the Washington Post reported on today). Even though it might have been legal according to the Consitutional argument, it would have looked very bad without some proper oversight. i.e. in theory the White House could have tapped Howard Dean's phones and even the perception of that possibility is undesireable to say the least.

But that's what Congress' role is - they can legislate to find solutions to these issues consistent with the Constitution. At the moment they seem more enamoured with bloviating on the cameras than utilizing their legislative powers.
Posted by Kellino (36 comments )
Link Flag
We know that....
... and you have been far too verbal to retain credibility. You come
on like pure propaganda. Maybe it isn't, but you make it look like it
is.

I'll look for some trustworthy experts to get believable opinions.
Posted by Earl Benser (4310 comments )
Link Flag
God are you all blind???
Whats wrong with you Yankees (sorry this is what us Brits call you, so all you non-new york fans dont moan)? cant you see where this is heading or have none of you read 1984? (by George Orwell in case you dont know). Its pretty obvious that these executives that 'declined to respond' are hiding something, otherwise they could have just said "No we dont divulge customer information to the goverment, just because Mr. NSA asked nicely". The US government (pretty much since J. Hoover) has routinely spied on its own citizens and not just in the interests of 'National Security'. A prime example is former President Nixon who had the NSA routinely eavesdrop on citizens and organisations, (around 7000 individuals and 1000 orgs). I know what you are thinking, my wonderful (not so) democratically elected Bush Republican government will never do such a thing, thats illegal. But look at the Iraqi war, thats illegal by international law, but it never stopped your (and my) government from contraviening it and going to war (and basically sending those poor soldiers to their early demise).

There is also another way that your government spys on you; Echelon. This is a system set up after WWII by the American, British, New Zealand, Austrailian and Candian goverments to intercept communications from all around the world. In order to get around the clauses of spying on your own citizens, each country spys on the other, then shares the information with the host country. We have several American 'listening posts' (spy stations) on UK soil, passing information right back to our own government.

The US and UK et al say they need to look out for potential terrorists that may be lurking around the next corner, but the fact is, if these countries hadn't completely disregarded human life and the soveignty of another nation, then there wouldn't be as many terrorists in the world. The fact is the other half were probably trained by the CIA to fight those (former) damned Soviets (e.g. the Taliban, Osama Bin Laden, etc.)
Posted by drifted (10 comments )
Reply Link Flag
spy stations
how about kinkos... ATMS... SAFEWAY... your local fire station... police... and on and on and on

I hate playing tag... I hate it... I always get picked as being IT...

why dont you all just grow up!
Posted by freq (121 comments )
Link Flag
Hi Arif. :)
Arif,
Americans are not all blind or stupid. Blind people are blind and
stupid people are stupid. I was born and raised in Texas. I do
not agree with this government and its overt actions but I am
pro American. When I say Pro-American I mean: Everyday people
who go to work every day to make payments and deal with
responsibilities. 99% of these people do not have any control
over this government. Our voting system is seriously flawed with
an Electoral College system. There is no one person, one vote
and we have a serious disenfranchisement issue which
determined the last 2 so-called elections along with other
corruptions that Rocked the Vote. Please dont throw the baby
out with the bath water. We are a good people. Maybe we just
dont feel that a bloody revolution is the answer.
Your American Cousin. J
Posted by Black Water (1 comment )
Link Flag
weak security is practically consent...
I dont feel secure with comcast... anyone else? though I do miss the performance and pricepoint of comcast.. they could implement some sort of VPN deal... I am sure it would be appreciated.... or better yet, some practical competition would be nice....

I dont feel secure with any big telcos... and why does corporate america trust its conference calls to the telcos?????? maybe only the unimportant conf calls... :-( what a scam! what a big ego-busting scam.....
Posted by freq (121 comments )
Reply Link Flag
Demand better from your provider
It's true, our communications providers CAN be giving customer's security options that would prevent, at least, unauthorized access to email in transit and storage. Tell them you want it, encourage them to do what Verizon did, and create an encryption policy for email accounts.

Only if they feel the market is there will they make the move...
Posted by 209979377489953107664053243186 (71 comments )
Link Flag
Are CBS and NYTimes Reliable Sources?
Not always, but I'll share them anyways. But before you do remember that Clinton Justice Department lawyers -- especially Gorelick -- testified before Congress that the Executive branch has the authority to monitor domestic -- and not international communications.

As Andrew McCarthy points out:

The Clinton OLC asserted, among other things, that even though the criminal wiretap statute (18 USC Sec 2510 et seq.) purports to limit the executive branchs ability to disclose wiretap information, the President was free to ignore those statutory provisions where limiting the access of the President and his aides to information critical to national security or foreign relations . . . would be unconstitutional as applied in those circumstances.

<a class="jive-link-external" href="http://corner.nationalreview.com/06_01_29_corner-archive.asp#089313" target="_newWindow">http://corner.nationalreview.com/06_01_29_corner-archive.asp#089313</a>

Had the NSA program been in place, prior to 9-11 it could have possibly prevented the attacks. 9-11 has become o politicized that there is more resistance today to perceptions of survelliance than there woere pre 9-11.

CBS 60 Minutes March 2000:

<a class="jive-link-external" href="http://www.cbsnews.com/stories/2000/02/24/60minutes/main164651.shtml" target="_newWindow">http://www.cbsnews.com/stories/2000/02/24/60minutes/main164651.shtml</a>

Full transcript here:

<a class="jive-link-external" href="http://cryptome.org/echelon-60min.htm" target="_newWindow">http://cryptome.org/echelon-60min.htm</a>

NYTimes May 27, 1999:

<a class="jive-link-external" href="http://www.nytimes.com/library/tech/99/05/cyber/articles/27network.html" target="_newWindow">http://www.nytimes.com/library/tech/99/05/cyber/articles/27network.html</a>

According to the report, Echelon is just one of the many code names for the monitoring system, which consists of satellite interception stations in participating countries. The stations collectively monitor millions of voice and data messages each day. These messages are then scanned and checked against certain key criteria held in a computer system called the "Dictionary." In the case of voice communications, the criteria could include a suspected criminal's telephone number; with respect to data communications, the messages might be scanned for certain keywords, like "bomb" or "drugs." The report also alleges that Echelon is capable of monitoring terrestrial Internet traffic through interception nodes placed on deep-sea communications cables.

While few dispute the necessity of a system like Echelon to apprehend foreign spies, drug traffickers and terrorists, many are concerned that the system could be abused to collect economic and political information.

"The recent revelations about China's spying activities in the U.S. demonstrates that there is a clear need for electronic monitoring capabilities," said Patrick Poole, a lecturer in government and economics at Bannock Burn College in Franklin, Tenn., who compiled a report on Echelon for the Free Congress Foundation. "But those capabilities can be abused for political or economic purposes so we need to ensure that there is some sort of legislative control over these systems."
Posted by Kellino (36 comments )
Reply Link Flag
oops
This was intended as a response to another comment. Apparently I mis-clicked and it started a new thread.
Posted by Kellino (36 comments )
Link Flag
This is pointless article. "without being compelled by law" makes the question useless. It would appear to me that the NSA could easily find some legal reason to get these companies to hand over the data.
Posted by jimbellio (1 comment )
Reply Link Flag
 

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