Judge nixes warrantless surveillance

[The Dog]

Come on, even you have to admit you are comparing apples to oranges.  But I'll play along.  Remember when the speed limit was 55???  Sammy Hagar even wrote a song about it (haha).  Well, that law sucked to many people...so THEY CHANGED IT!!! LEGALLY!!!!  People might have been going above 55 when that was the maximum, and guess what, if they got caught, they were charged and ticketed....b/c THEY WERE BREAKING THE LAW!  And if you go over 65 now and get caught you get charged.  Bush wants to do 80 when the limit is 65 and he thinks he should be able to simply b/c he is the president.  That is not right.

Your boy bush got caught speeding so to speak.....think he'll get a ticket? Or will he be able to sweet talk the officer who pulled him over (aka, the american people).

You've must've never been given a warning by an officer.

Your assuming that Bush is my boy. How would you know? I've never said that Bush is a great president. You don't know what party if any I support. But you outright say something as fact about me. But in this area of concern, I do support his actions trying to make this country more secure. When alot of people are worried about someone listening in on their phone calls. If no one is do anything illegal then no one should have any concerns. I don't think it's putting anyone in danger if a suspected terrorists phone wire is tapped. But I do think it puts many Americans in danger if it's not allowed.

I live in NYC, I don't drive - I take the subway or cabs

I was referring that you side with the president on this issue, not that he is literally "your boy".

As for wiretapping...I'm not against it per say.  I am against ILLEGAL wire tapping.  GET A WARRANT for it!!!  Thats all I ask, follow the law, or attempt to change it.  But NOBODY is above it.

I am more against the precedent though wiretapping would imply - if its ok to check in on our phones, what is next?  But thats an entirely different debate.....

[Mal Brossard]

Speaking of surveillance, I wonder what happened here?

The Men Who Knew Too Much?

Two NSA Wiretapping Whistleblowers Found Dead

By Joseph Cannon

August 22, 2006

Is someone murdering people who know too much about NSA wiretapping overseas?

Two whistleblowers one in Italy, one in Greece uncovered a secret bugging system installed in cell phones around the world. Both met with untimely ends. The resultant scandals have received little press in the United States, despite the profound implications for American critics of the Bush administration.

Last month, Italian telecommunications security expert Adamo Bove either leaped or was pushed from a freeway overpass; he left no note and had no history of depression. Last year (March, 2005), Greek telecommunications expert Costas Tsalikidis met with a similarly enigmatic end. Both had uncovered American attempts to eavesdrop on government officials, anti-war activists, and private businessmen.

The Bove case relates to the long-standing controversy over the CIA's kidnapping of cleric Abu Omar, who was flown to Egypt and tortured. The post-Berlusconi government of Italy is attempting to arrest and try all of the CIA personnel involved. Bove used mobile phone records to trace more than two dozen American agents.

Bove had also revealed that his employer, Telecom Italia, had allowed illegal "spyware" undetectable wiretaps to infest Italy's largest communications system. His testimony helped to uncover the unsettling relationship between SISMI chief Marco Mancini and Telecom Italia head Giuliano Tavaroli. (Mancini, recently arrested by Italian investigators, has also come under some suspicion for his possible role in the strange affair of Major General Nicola Calipari, killed by American troops in Iraq.) In the 1990s, Bove had received wide praise for helping to secure convictions of two bosses in the Camorra, Naples' answer to the Sicilian Mafia.

The case of Costas Tsalikidis an engineer for Vodaphone, Greece's top telecommunications firm offers a similar picture. Tsalikidis discovered an extraordinarily spohisticated piece of spyware within his company's network. The Prime Minister and other top officials were targeted, along with Greek military officers, anti-war activists, various business figures and a cell phone within the American embassy itself. This page gives a full list of the targets, very few of whom could be considered as having even a remote connection to terrorism.

As investigative journalists Paolo Pontoniere and Jeffrey Klein report:

The Vodaphone eavesdropping was transmitted in real time via four antennae located near the U.S. embassy in Athens, according to an 11-month Greek government investigation. Some of these transmissions were sent to a phone in Laurel, Md., near America's National Security Agency.

According to Ta Nea, a Greek newspaper, Vodafone's CEO privately told the Greek government that the bugging culprits were "U.S. agents." Because Greece's prime minister feared domestic protests and a diplomatic war with the United States, he ordered the Vodafone CEO to withhold this conclusion from his own authorities investigating the case.

The CEO of Vodaphone in Greece, George Koronias, has like Giuliano Tavaroli, his Italian counterpart come under the suspicion of having a hidden relationship with American and British intelligence. At least three Vodafone comunications hubs (one expert says the number could be as high as 22) were compromised by the eavesdropping technology. Koronias had reported only two of these bugs, and had failed to alert a watchdog agency of the discovery of further listening devices.

Vodafone is a British company, comparable to Sprint in the United States. Testifying before a Greek parliamentary committee, Koronias insisted that no-one in the U.K. could have had any connection to the ultra-sophisticated spyware.

'Only Ericsson's staff could have set up such a device,' he said. Ericsson furiously countered that Vodafone not only knew about the illegal software but had activated it at the request of British intelligence agents.

More on Ericsson's official response:

Ericsson, the company that produces the software used by Vodafone, issued an announcement clarifying that two types of software were employed for tapping the phone conversations.

The first one employed legally had been developed by Ericsson and had been installed in Vodafone, yet it was not activated. The second software, which was of unknown origins, namely it had not been developed by Ericsson, had been illegally installed in Vodafones system to activate the legal software and erase the traces of the phone-tapping.

This is, by any measure, a troubling admission especially since Ericsson manufactures many mobile phones used in the United States. Vodaphone insists they were never informed of this "feature" in Ericsson phones, although Ericsson executive Bill Zikou has testified that the company disclosed the truth via its sales force and instruction manuals.

American security expert John Brady Kiesling reveals further details about the bugging devices in Ericsson cell phones:

Built into the Ericsson (Sweden) software that runs the Vodafone (UK-owned) mobile telephony network switching system in Greece, and similar GSM service providers around the world, is a little-known "Legal Interception" software package designed to be used by law enforcement authorities. This software allows incoming and outgoing conversations from allegedly up to 5000-6000 mobile phone numbers to be recorded, on presentation of a valid judicial warrant. [A friend in telecoms claims governments require that telephone companies give law enforcement authorities the capability to monitor up to 5% of active calls as one precondition for an operating license]. However, to unlock and use the eavesdropping package, the company must pay Ericsson a hefty fee (allegedly four million euros). The Greek government allegedly refused to pay this fee, despite its desire for wiretapping capability during the 2004 Athens Summer Olympics. One reason was that a clear legal basis for such eavesdropping was not yet in place.

Apparently someone persuaded a Vodafone or Ericsson employee with access to the switching network to install a software parasite in at least four and possibly more of the 22 call management centers that Vodafone operates in Greece.

The family of Costas Tsalikidis, the whistleblower who was found hanged in his apartment, does not accept the verdict of suicide. Neither does his fianc?e. The Greek press has hinted at further skullduggery:

The prosecutor also visited the lawyer of Taslikidis family, Themistoklis Sofos, who announced that his clients will be filing a lawsuit against unknown parties for embezzlement and falsification of documents pertaining to the deceaseds emails. In addition, they will subpoena all those who participated in the much-publicised meeting just before the revelation of the wiretappings; a meeting Vodafone denies ever having taken place.

Perhaps most disturbing of all, Vodaphone had eliminated the spyware from its system before Greek intelligence could conduct an examination. Greek spy chief Loannis Korantis testified that this move amounted to destruction of evidence.

Are Ericsson cell phones the only ones with the built-in spy technology? We can't be sure. But one thing is certain: When the fellow on TV asks "Can you hear me now?", the person he's addressing may not be the only one who can say yes.

ORIGINAL ARTICLE: http://www.bradblog.com/?p305

[SLCPUNK]

http://www.youtube.com/watch?v=EJ53s_Zyr04

Second half is the best part. Pretty much sums it up for me.

[Surfrider]

http://www.youtube.com/watch?v=EJ53s_Zyr04

Second half is the best part. Pretty much sums it up for me.

How surprising that the unbiased CNN presents this viewpoint as if there is no question that the President's actions were illegal.? I actually believe that there is an argument on both sides.? Althought I am not certain you understand the complexity of the argumnets, here is a post from one prominent constitutional scholar that lays out some of the arguments for the constitutionality of the President's actions.? It is certainly not as clear cut as you want to make it:

http://volokh.com/archives/archive_2006_08_13-2006_08_19.shtml#1155836899

The NSA Eavesdropping Opinion and the Fourth Amendment: The district court, in a three-page analysis ? mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case ? concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that

the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and

Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power" (a term that could encompass foreign nongovernmental organizations as well as foreign governments), as oppose to activities of domestic organizations (the matter that the Keith Court stressed was at issue in that case).

For more on these two arguments, see Orin's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):

On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument ? and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

"Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."

The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power."

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.