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August 11, 2007

Comments

Sue

Or ideal.

kim

Well, I guess it's moot if you knock yourself out.
=============================

kim

Where's my meat? See Bolt run. Hey, that's our ball.

Somebody tackle him.
==================================

cboldt

-- I should ignore your comments directed towards me? --

I know, it's not within your power. You can't resist complaining even when my comments AREN'T directed to you. Because you have an axe to grind against me -- you're a petty and vindictive bitch.

I complain about the gauntlet of getting past the captcha-check and troll filter (there's the context you bitched about missing yesterday, but couldn't be bothered to provide), and your true sentiment toward me comes out ...

I meant disrespect and really don't care if he feels insulted by it or not. My gauntlet for his posting here has crossed my tolerance threshold she said with a regal sneer in her voice.

Why don't you grow up and ignore me? Because you can't. I'm sure we'll meet again. Maybe more flames on this very thread.

kim

Truth be known, if it weren't for the gauntlet, cboldt wouldn't run so fast. I regret, respect, and enjoy my small part.
==============================

Sue
I meant disrespect and really don't care if he feels insulted by it or not.

Thanks for reminding me of that quote. I think I need to revise it. I was under the impression you were a male, but the cattiness of your insults sound more like a female to another female.

If I really wanted to go back and find your insults to the entire board, not just me, it would be very simple. I could start at the top of this thread, were I so inclined. If you want to play gotcha games, by all means, "knock your self out". If you think to shut me up with the reposting of my true sentiments of you..not going to happen, bambino. Only Tom can do that.

boris

Perhaps the administration submitted TSP to FISA as a means to deliberately lose intelligence, so as to create a problem where the solution is to modify FISA.

Even with a "perhaps" it's a debatable subject. I expressed a similar notion here. The debate from Volokh did continue here in fairly continuous fashion too.

Even if the administration had a course of action at the ready just in case, IMO the latest ruling took them and the dimcongs by surprise.


cboldt

-- If you think to shut me up with the reposting of my true sentiments of you..not going to happen, bambino. --

You are seriously comprehension impaired. What part of "I prefer you to ignore me" is outside of your mental grasp?

You jumped on me on posts that were directed to others. Just stifle it.

Sue

You jumped on me on posts that were directed to others. Just stifle it.

It would have had more punch were my name Edith.

kim

One of these minutes.....
===============

cboldt

-- If I really wanted to go back and find your insults to the entire board, not just me, it would be very simple. I could start at the top of this thread, were I so inclined. --

I'll do it for you. cboldt-delivered insults on this thread ...

To Mr. Turner: I can see the judges rushing to your "foreign-to-foreign / foreign-to-unknown" framework
already, and abandoning the words of the statute. LOL. ... You may notice (maybe not) that I'm not arguing the statute represents a good balance. August 12, 2007 at 10:20 PM

To Mr. Turner: I can't help it that you fell for the line that the issue is foreign-to-foreign surveillance. ... a different framework just the same, which introduces the complexity of translation" between the statute and your alternative framework just to satisfy your view of how the analysis ought to proceed. August 12, 2007 at 10:50 PM

At which point Mr. Turner and I parted.

After a few back and forth as to whether or not the administration defined the TSP narrowly (after my contention that the administration defined it as US-to-foreign was called "a canard"), being frustrated at others not seeing what is, to me, plain language that the administration did define the TSP narrowly (FWIW, Sue saw the administration definition of TSP the same way I saw it):

Obviously, I'm not smart enough to run with this crowd. August 13, 2007 at 11:30 AM

I can't hold a candle to cathyf's logic. I'm outta here. August 13, 2007 at 11:48 AM

And then comes Sue ...

Oh good lord. How many times have we heard this before? And usually when everyone isn't bowing to his superior wisdom. How freakin' old are you anyway? ... And you're right. You can't hold a candle to Cathy's logic. August 13, 2007 at 12:00 PM

No I am by no means an objective observer in this. But from my point of view, you were the FIRST person to throw a personal insult. And you threw it at me. You've done that to me before, and this time, instead of ignoring you as I have before, see
e.g., your "My gauntlet for his posting here has crossed my tolerance threshold" comment), I gave it back.

MayBee

Obviously, I'm not smart enough to run with this crowd

If it makes you feel better, cboldt, I took that personally.

Sue

Hmmm...funny how I saw it your way, instead of my own way, but anyway, as I stated later on, the argument morphed into something unrecognizable as being the original debate. Whether or not the foreign to foreign was included in what is loosely referred to as TSP. I believe it was, mainly because I heard someone in the administration discussing the issue about switches in the US, but didn't pay close enough attention to it to actually contribute to what was, as I pointed out, an interesting debate. Until someone got huffy and started with the usual veiled insults at the intelligence of those posting here.

I'm back to ignoring you, though not because you requested it, but because I'm bored with it. Enjoy!

clarice

cboldt, you provide valuable insights and do admirable research, but I must say I think you personalize these arguments more than I think you should and then respond in ways that are off putting. We're all--or most of us--seeking to figure out often complicated issues and bring to the task a variety of skills, experience,perspectives and knowledge. A disagreement shouldn't be considered an attack on yourself--just another way of viewing the issue.

hoosierhoops

whooo!
has the smoke cleared yet here?
So i was thinking about the data mining software the NSA has developed. I mean it sounds so simple to intercept foreign to foreign traffic but the complexities of routing are daunting..
Let's say you belong to a large global network and each LAN is using private segment IP's.. 10.x.x.x. Each office or segment would tie together in a MPLS network until external traffic to the private IP's goes through a public router to the ether of the Internet.. say a 143.x.x.x segment.
The public router could be in the US but the message passed through a private IP oversea's..And what about VPN networks?
I really think you need to control the data from core routers on backbones to be able to trace anything...Would that mean that without sprint, AT&T, verizon..ect. the NSA is completely out of the loop and helpless?
Because just spicing into the fiber doesn't give you the core routers' access and data.. Right?

hoosierhoops

Because just spicing into the fiber doesn't give you the core routers' access and data.. Right?
I meant routing tables

boris

can see the judges rushing to your "foreign-to-foreign / foreign-to-unknown" framework

ISTM at the time that Cecil was promoting that the intent of the "FISA fixer" proviso (105A?) was NOT to eliminate warrant requirement for foreign-to-US. Not intended to KEEP it either, just agnostic on the point. His logic: interpreted that way it would essentially collapse 1801.f.1 and 1801.f.2 (into something like the Heather Wilson language BTW). IIRC you also made that point to me when I started to pay attention to the issue. My point was that the proviso has the net effect of converting 1801.f.2 "person in the US" into "target in the US" (you claimed sea change). That's where the "target-to-contact format" for my summary List came from.

cathyf
Because just spicing into the fiber doesn't give you the core routers' access and data.. Right? I meant routing tables
The routing tables are inherently public. IP is inherently hierarchical, and so in order to get a packet to its destination you only need to know how to get it to the next node up the tree from you, but in fact nodes are continuously chattering among themselves sharing routing information automatically as part of their routing optimization algorithms, and you can always get anything you want by using explicit nslookup and/or ARP packets.
HoosierHoops

Hi Cathyf
I'm sorry I'm an idiot..I guess what I meant was the conversion from the private IP's to the public router..For instance a private IP such as 10.15.83.235 could be from anywhere untill it arrives a a corporate public router and begins it's public journey through the internet routing tables...let's say the public router is 143.238.45.125.. if you ping back you could never get past 143.x.x.x. right? and nslookup would only work inside the corporate gateway. I dunno, it's a thought..besides we did change the topic a little bit heh?
thanks for the input

SlimGuy

Cathyf

That assists in the dynamic routing paths due to load sharing congestion issues.

But it is quite simple to know the full national routing table setup indirectly if you have access to the place which sends out all the BGP (Border Gate Protocol) messages to update routing tables.

They have the full backbone net structure known in house at all times to make the decisions for any alterations required for the various and changing peering agreements and physical routes and capacities.

cboldt

-- A disagreement shouldn't be considered an attack on yourself --

I don't take disagreements as an attack on me. As between me and Mr. Turner, we've each mounted contentions that the other is arguing from a position of dishonesty. In this thread, Mr. Turner was the first to insinuate that about me. "I think you're reverting to your game-playing silliness." Fine enough, no need to rebut it, my statements and his responses to them are a fine-enough record for history to judge whether I was playing games, or Mr. Turner failed to see the substantive point I stated.

As for the later shit storm, I was (and remain) incredulous that so many readers would take the administration's definition/description of TSP as not standing for the proposition that the administration wanted the public to construe "TSP" narrowly. I see the defense of "the administration defined the TSP to include foreign-to-foreign" as "group think" and "mutual defense." That's not abnormal blog behavior, but it's not rationally based on objective reality.

So I say, "I'm not smart enough to run with this crowd" (because no matter what I say on the subject, the crowd has already decided I've misconstrued the administration's words), and "I can't hold a candle to cathyf's logic. I'm outta here," referring to cathyf's logic to support the conclusion that I've misconstrued the administration's words, and indicating "done with this argument."

And I would have been out of that subject, likely done with the thread, but for Sue's decision to comment.

I notice you have no criticism for her conduct, by the way.

Good day.


boris

"the administration defined the TSP to include foreign-to-foreign"

There's a significant difference between "defined to include" and "subject wasn't discussed".

ISTM that Cecil, MayBee, Cathy, and I by default include "foreign-to-foreign" as part of TSP. That administration public statements do not clarify on that issue, seem to avoid it, and infer otherwise by emphasis is easily explainable as repetition of a talking point in the context of warrants, which do not apply to "foreign-to-foreign" (until now).

cboldt

-- There's a significant difference between defined to include" and "subject wasn't discussed". --

The administration descriptions and definitions of TSP have the TSP excluding foreign-to-foreign communications. Including foreign-to-foreign communications as being part of the TSP as the administration described/defined it is a misconstruction of the administration's position.

clarice

cboldt, I am suggesting that a less prickly approach to others' views might mean that others would consider yours more carefully. Most of the technical aspects of this argument are beyond my ken, but boris' point above (made also by Cecil, Maybee and Cathy) have much to commend it.If most of a program is secret, it is understandable that public statements by the Administration would be confined to what is in the public record alone ,and I personally find it hard to accept that these are inclusive.
OTOH, because the program is secret we can't really know no matter how much invective we fling at eachother.

Cecil Turner

I don't mind you importing my words from elsewhere, but to hold that they represent the position I've expressed in debate here is intellectually dishonest.

Oh, piffle. I read those because you brought it up on this thread, and formed an impression. I didn't take notes on which threads they were on. When "assigning" a particular "framing" to you, which you complained about, I did it from memory and paraphrased. Instead of clarifying, you did a third-person implication of dishonesty. At least this time you were straighforward about it.

You look for trouble, and if you can't find it, you make it up.

You suck at mind reading. As far as I'm concerned, you derailed the interesting part of the discussion with some asides about pursuing changes in the statute (and whether or not it was intentional).

Of course the administration's goal was to change the statute. They lobbied for a change in the statute a year ago.

Are you now claiming their goal in submitting their program to the FISC was to change the statute? If so, I'm having a hard time seeing how any of the above misrepresents your position. If not, clarity is lacking, because it certainly appears to be the implication.

I had underlying points in a number of posts above . . .

That much is obvious. What they are . . . not so much. I've learned a couple of things from your discussion (biggest one: the interception of foreign-to-US communications is one of the Administration's desired adjuncts to either the FISC ruling or the statute change--that they're not agnostic as I originally believed . . . though it's unclear to me if they're doing that to preserve a technical approach that has that as one of its byproducts, or they view the foreign-to-US communications themselves as high-value). And even one nugget warrants some sifting.

At any rate, you used up my presumption of good will last November -- and I assumed that you were likewise of a mind to argue at arms length, if at all.

Well, I'd like to hear comments on my area of interest (like everyone else, I suppose). Best case is to have someone else ask--since we don't get along--but if they don't hit the points I'm interested in . . . In the above, the main thing I can't figure is why there's a ruling that a domestic switch always requires a warrant (unless it's a function of uncertainty of the ends of the communication). I will not be persuaded the result is anything other than absurd . . . but I would be interested in hearing how that conclusion could be arrived at as a legal issue (unless it's a function of uncertainty, which you appear to dispute).

cboldt

-- the context of warrants, which do not apply to "foreign-to-foreign" (until now). --

That depends on what you mean by "now," and by how you decide to construe "needed a warrant for." LTG Alexander made a comment about requiring a warrant to obtain what you refer to as foreign-to-unknown, and if he didn't get that, aid he, he also didn't get foreign-to-foreign. So he needed a warrant to get some foreign-to-foreign.

cboldt

-- I can't figure is why there's a ruling that a domestic switch always requires a warrant --

Any acquisition regime that AIMS to capture communications where one end is in the US and the other end is foreign and one party is al Qaeda, will capture communications that are to or from a person in the US.

Any wide ranging acquisition scheme (the deer hunter in the tree stand) on a wire that runs between the US and another country is bound to acquire communications where one end is in the US and the other end is foreign. IOW, technology can't facilitate acquisition, on that data stream, that is limited to foreign-to-foreign communications.

But even if it could, there is still the communications with US on one end, foreign on the other, one party al Qaeda -- under 1801(f)(2), is (was) that "electronic surveillance?"

cboldt

-- Are you now claiming their goal in submitting their program to the FISC was to change the statute? If so, I'm having a hard time seeing how any of the above misrepresents your position. --

The goal of obtaining a revision to FISA stands, whether the administration submits TSP to FISC or not. A request to change FISA was submitted to Congress in 2006, before the TSP was sumbitted to the FISC.

The decision to submit TSP to FISC was done -after- the administration was aware that TSP-like surveillance (if conducted from a US-based switch), might be construed as "electronic surveillance" under 50 USC 1801(f)(2).

The administration knew whether or not it was acquiring foreign-to-foreign communications from a US-based switch, and it was likely obtaining that under the warrantless TSP. It may have ALSO been acquiring some foreign-to-foreign communications under warrants that permitted access to US-to-foreign communications on that same switch.

boris

have the TSP excluding foreign-to-foreign communications

In context of the tech POV those statements appear more as talking points where the context does not include foreign-to-foreign communications. Hence an appearance of exclusion where the reality of exclusion is unlikely for technical reasons.

IOW, technology can't facilitate acquisition, on that data stream, that is limited to foreign-to-foreign communications.

So your dispute is that TSP can't specifically target foreign-to-foreign?

That's a fundamental misunderstanding of the tech POV on the issue. As repeatedly claimed the issue is foreign(target)-to-unknown(contact). That retrieves foreign-to-US AND foreign-to-foreign. It may in fact be the only reliable way to acqire ALL foreign-to-US communication. Nobody has EVER claimed TSP is specifically filtering for foreign-to-foreign. In fact EVEN IF TSP were ONLY interested in foreign-to-US it would STILL need to address the foreign-to-foreign aspect as part of the program.

cboldt

-- If most of a program is secret, it is understandable that public statements by the Administration would be confined to what is in the public record alone, and I personally find it hard to accept that these are inclusive. --

I typed this above, and didn't even get so much as a "ahh, I see what you're saying." And obviously, from your comment, you either didn't see what I typed, or did and don't see the distinction I am trying to make over and over and over again when I say how the administration defined the TSP.

Hence (as I said above) all the quotes to the administration's words about the TSP.

The administration describes (what may be a subset of the activity - but they talk as though "Look, this is ALL we're doing, and you'll agree, it's reasonable) a surveillance program that comprises ONLY the activity of targeting communications where one person in US, one person out of US, one person al Qaeda. The narrow subset of activity is dubbed "TSP," and the administration adopts this moniker.

Tied up in this, but going under the radar, is the acquisition of foreign-to-foreign communications from a switch in the US, under the same "no warrant" activity. The administration doesn't give a name to this, and it isn't a substantial part of the public debate.

Does the administration aim for the phrase TSP to be narrowly construed in such a way that foreign-to-foreign communications are excluded from what the administration defines as TSP? I posted direct evidence that the answer to this is "yes," including where the administration narrowly defined "international" as "US to foreign." Well, that's an odd definition to me too, but I didn't make the definition. Sort of like "acquiring the wire communications to or from a person in the US is not electronic surveillance if the surveillance is directed at a person outside of the US." It doesn't fit normal dictionary definition, but that's not at all unusual for a statute.

cboldt

-- So your dispute is that TSP can't specifically target foreign-to-foreign? --

It depends on how one defines TSP.

The administration defined TSP as acquiring communications one end in US, one end foreign, on party al Qaeda, and that's all.

OTOH, if one defines TSP as being "all the stuff that comes off a US-based switch," then TSP includes foreign-to-foreign traffic.

boris

Think of it as a Google search:

To intercept foreign terrorist Zawazoo communicating with Nancy Pelosi just Google Zawazoo +”Nancy Pelosi”

To intercept everybody in the US Zawazoo is communicating with it’s necessary to perform a Google for every person in the US or 300 million of them.

To intercept everybody in the whole world Zawazoo is communicating with just Google Zawazoo

There is no wild card specification for “people in the US” or for “people not in the US”.

boris

one end in US, one end foreign, on party al Qaeda and that's all

Wiki cite:

The complete details of executive order are not known, but according to statements by the administration, the authorization covers telephone calls originating overseas from a person suspected of having links to terrorist organizations such as al-Qaeda or its affiliates even when the other party to the call is within the US.
Not presented for the truth of the matter, just to show that there are other interpetations of administration talking points not in strict agreement with yours.

Were those statement you like to quote written that way as amendments to the constitution you might have something of a point. I am not going to bother to point out all the OTHER inaccuracies in those quotes. That they exist argues for lack of precision and limited logical context.

cboldt

-- just to show that there are other interpetations of administration talking points not in strict agreement with yours --

There are interpetations of administration talking points not in strict agreement with the administration, too.

cboldt

"I wonder what the administration's talking points are."

"Hey, let's check wikipedia!"

Might as well check DailyKOS while we're at it.

cathyf
the main thing I can't figure is why there's a ruling that a domestic switch always requires a warrant (unless it's a function of uncertainty of the ends of the communication).
I'm not discounting the possibility that the FISA judge ruled that a phone call from a known/suspected terrorist in London to a phone in Pakistan routed through a switch in the US consists of TWO foreign-US communications, both intercepted on US soil, and as such "they" "both" require FISA warrants.
cboldt

Pre S.1927, assuming there is a US-based switch that has foreign--foreign traffic, and foreign--US traffic, and assuming arguendo that these two types of traffic can be perfectly separated as a matter of technology. IOW, there is no such thing as "foreign to unknown."

Would the administration be able to conduct what it called the TSP is a court held that the foreign--foreign material could be obtained without a warrant, but the US--foreign traffic required a warrant?

cathyf
Would the administration be able to conduct what it called the TSP is a court held that the foreign--foreign material could be obtained without a warrant, but the US--foreign traffic required a warrant?
Your question is completely without meaning according to the definition of "program" which you have invested thousands of words arguing for on this thread. According to your definition of "program" it is nonsensical to talk about "conducting" it.
boris

Arguendo: there is no such thing as "foreign to unknown."

Administration conducts surveillance on purely foreign communications that pass through a U.S. communications node without warrant, comment, controversy or revealed program designation.

Administration conducts surveillance on foreign targets communicating with contacts in the US that pass through a U.S. communications node without warrant based on some earlier agreement with FISA court. This program is designated TSP.

(what about AQ targets in US? automatic warrant)

Okay I'll bite, what's the point?

boris

I guess the arguendo TSP could be ruled to require a warrant without affecting the "unrevealed" purely foreign program.

Maybe need to rephrase the question.

Neo

What I always like in these spying .. err .. surveillance discussions is how the members of the Senate and House intelligence committees seem to get a pass on knowing anything.

Why was it so important that Congress do even a 6 month "reform" measure of FISA if there is no problem ? Because Bush said so ? LOL

There is a "Bush is less than" din that permeates the political discussions of the Democratic side of these issues, so it could possibly be because there is no "there" there. The alternate is to believe that all of Bush's political opponents are fools and idiots. What self respecting Democrat goes around saying that Bush tricked them into anything ? (Hint, anyone you can think of has no self respect and shouldn't have yours). There is a long line of fools and idiots, but are they all fools and idiots ?

cboldt

-- Your question is completely without meaning according to the definition of "program" which you have invested thousands of words arguing for on this thread. According to your definition of "program" it is nonsensical to talk about "conducting" it. --

Well, it's not my definition, as I keep trying to impart, it's the administration's definition (as I find it at the administration web site - different from the one one that boris finds at wikipedia), that I've spent thousands of words "arguing for" on this thread.

Just the same, I'll rephrase the question.

[On this hypothetical, perfectly-sorting US-based switch] Would the administration be able to acquire the communications, without a warrant, with one party in the US, one party in a foreign land, and one party al Qaeda, if a court held that the foreign--foreign material could be obtained without a warrant, but the US--foreign traffic required a warrant?

cboldt

-- Okay I'll bite, what's the point? --

That the "foreign to foreign" plaint (especially raised as a "new" or "this is beyond what we could have foreseen when we submitted TSP to FISC" plaint in 2007) is a political smokescreen.

boris

One answer might be, executive has constitutional authority to ignore the court on that example.

Other answer, if the target is the foreign AQ, then yes. If the target is in the US then no. But that's the distinction I made in the Summary List between (3) and (4). Pre S.1927 there's no distinction .

boris

That the "foreign to foreign" plaint is a political smokescreen.

Okay, based on that arguendo. The other arguendo: all intercepts are "foreign to unknown." Any separation happens after intercept.

Seems to fit both my tech POV, public disclosures, and dimcong panic.

boris

-- delete "both" --

cathyf
Well, it's not my definition, as I keep trying to impart, it's the administration's definition (as I find it at the administration web site - different from the one one that boris finds at wikipedia), that I've spent thousands of words "arguing for" on this thread.
I see no sign whatsoever that the administration is using anything other than the standard dictionary definition of "program" which makes sense in this context: a plan or system under which action may be taken toward a goal

You, on the other hand, have spent thousands of words defending the definition of "program" as being a set of statements about a [plan/system]. (Which is why I dropped out of the discussion yesterday. The "program" is a set of statements. Therefore "foreign-foreign is not in the set of statements" is exactly and tautalogically equivalent to "foreign-foreign is not in the program". *yawn* Who cares? *shrug* If you want to have your own private nonstandard meaning of the word "program" I'm not really interested in disabusing you of it.) I'm pretty sure that the mere act of having Snow or Gonzales or Alexander or Bush flap their jaws is not any kind of "surveillance" at all of anyone anywhere.

Cecil Turner

So your dispute is that TSP can't specifically target foreign-to-foreign?

Well, if so, I think it's correct (in the sense that the technology may not be able to discriminate in all--or perhaps even most--cases). It also appears to me to be a restatement of the uncertainty issue (i.e., under 1801, foreign-to-unknown constitutes "electronic surveillance," because the other end might be in the US). But I'm also getting something else (perhaps erroneously): that since the Administration admits targeting foreign-to-US, it can't claim the exemption just because most of the traffic from a particular target is foreign-to-foreign.

Back to the national security point, if Prof Kerr's White House source is correct, the main point of the interception "program" is not the TSP part (if we define that as foreign-to-US), but the overseas part:

Finally, the official stated that it's actually very rare for a person who the government is monitoring abroad to have communications with a person in the United States. It's just not common for an intelligence target to have communications with people in the U.S.; communications from abroad to abroad are the norm.
So, do we have a case where the court threw out the baby with the bath water? And did they have any discretion? Or do the rulings show an essentially conservative (in the sense of leaning toward NSA cooperation) court that took iterative steps toward the only defensible legal position?

cboldt

Given a technical issue vis-a-vis sorting foreign--foreign from US--foreign, even if that technical problem is resolved, the pre-S.1927 legal problem remains. The no warrant, one party in US, one party not in US, one party al Qaeda surveillance regime can't be undertaken without changing 1802(f)(2).

The rationale that the DEMs foreign-to-foreign concession was unacceptable "due to technology" and "the switch can't sort" doesn't wash.

Even if the technology is possible, and implemented, the warrant requirement remains unless 1801(f)(2)'s "acquired in the US" is construed such that tapping a US-based switch isn't "acquired in the US," or 1802(f)(2) is amended.

S.1927 amended 1801(f).

cboldt

-- You, on the other hand, have spent thousands of words defending the definition of "program" as being a set of statements about a [plan/system]. (Which is why I dropped out of the discussion yesterday. The "program" is a set of statements. Therefore "foreign-foreign is not in the set of statements" is exactly and tautalogically equivalent to "foreign-foreign is not in the program". *yawn* Who cares? *shrug* If you want to have your own private nonstandard meaning of the word "program" I'm not really interested in disabusing you of it.) I'm pretty sure that the mere act of having Snow or Gonzales or Alexander or Bush flap their jaws is not any kind of "surveillance" at all of anyone anywhere. --

Right.

The question, stripped of the issue of 'definition of "program"' was, "[On this hypothetical, perfectly-sorting US-based switch] Would the administration be able to acquire the communications, without a warrant, with one party in the US, one party in a foreign land, and one party al Qaeda, if a court held that the foreign--foreign material could be obtained without a warrant, but the US--foreign traffic required a warrant?"

hoosierhoops

Ring Ring...
AQ: Al Queda Hotline..may I help you?
HH: um..ya.. hi there..AQ?
AQ: Yes sir..how may we help you?
HH: Well first off..because of this new Fisa program i need to ask you a question..
AQ: Yes sir..
HH: Is your office in the US and in other parts of the world?
AQ: Oh sir..we have offices in every country ready to assist you..
HH: So this would be..a US to foreign call?
AQ: oh no sir..currently I'm sitting on the 24th floor of the NY Times office building..they have been very accomidating....Now how can i help you?
HH: Can I have the main menu?
AQ: oh yes sir..and thanks for calling AQ in America!
Click:
For suicide bombing ..please press 1.
For massive infrastructure bombings..please press 2
For technical support..please press 3
For sales please press 4.
For all other inquiries..please press 5.

cathyf
That the "foreign to foreign" plaint (especially raised as a "new" or "this is beyond what we could have foreseen when we submitted TSP to FISC" plaint in 2007) is a political smokescreen.
Ok, so that really is your argument. That when evil Karl Bushitlerhaliburten claims to be "surveilling" "terrorists" it is all a pretense; we "know" it is a pretense because the administration has "admitted" by their public statements that any foreign-foreign terrorist communications which they monitor are incidental. If it were not a pretense, then the NSA and other spying agencies would be monitoring foreign-foreign terrorist communications systematically, not just incidentally.

Well, cboldt, you are well off into crackpot territory...

cboldt

-- Ok, so that really is your argument. That when evil Karl Bushitlerhaliburten claims to be "surveilling" "terrorists" it is all a pretense; we "know" it is a pretense because the administration has "admitted" by their public statements that any foreign-foreign terrorist communications which they monitor are incidental. If it were not a pretense, then the NSA and other spying agencies would be monitoring foreign-foreign terrorist communications systematically, not just incidentally.

cboldt, you are well off into crackpot territory... --

LOL. You have as good an imagination as the KOSkids do.

I'm just observing that even if the foreign-to-foreign issue was resolved with technology, an issue with 1801(f)(2) would still remain, because it would impinge on warrantless, one person in US, one person foreign, one person al Qaeda.

And for that, you declare me a crackpot? ROTFL.

boris

But that still does not explain the Jan 2007 agreement with the FISA court to oversee TSP.

FISA court doen't just say 1801(f)(2) is void then reassert it 3 months later. No way.

cathyf

What no one has mentioned yet is the story that the NYT's sources gave when justifying their leak of the NSA's activities. According to the leakers, the NSA was monitoring all of the communications of various and sundry known/suspected terrorists, all of whom are in foreign countries. Whenever one of the monitored foreigners was one end of a communication where the other end was a US person in the US, and the monitored content was detected to be terrorist or terrorist-suspect content, then two different things were happening, according to the leakers.

1) The NSA was forwarding the info about the US person to the FBI, so that the FBI could investigate; and

2) The NSA & DoJ were bringing the contents of the foreign-US monitorings to the FISA court as probable cause for getting a FISA warrant to monitor the US person.

Of course all the usual caveats about believing and/or taking at face value the spinnings of anonymous leakers apply, but they both seem to be fairly plausible stories.

On the other hand, we have no leaks about other hypothetical eavesdropping. Suppose the contents of one or more of these calls dealt with operations against targets in Britain, Australia, etc., and the NSA was sharing with the Brits, Aussies, etc. the information that we get. Nobody leaked that, so we can only speculate and draw logical inferences.

cboldt

-- But that still does not explain the Jan 2007 agreement with the FISA court to oversee TSP. --

No. It doesn't.

I posited a few purely speculative explanations here, but apparently it wasn't an interesting point.

I have other (purely speculative) ideas on the same question, besides the ones already described.

boris

Argument by plausible scenario:

Arguendo: All intercepts start as foreign-to-unknown

In Jan 2007 the admin and FISA court agree that accessing foreign-to-foreign is executive constitutional authority that trumpls 1801.f.2 so admin gets access to foreign-to-US as gravy.

In Apr 2007 Judge Fubar UNEXPECTEDLY declares even foreign-to-foreign requires a warrant, no executive constitutional authority at all, therefore shuts down TSP.

boris

-- trumps -- but trumpls works too.

boris

-- even foreign-to-foreign requires a warrant using node in the US --

SlimGuy

Most seem to be focusing here on the limited communication of voice traffic.

With all the modes of info passing on the net today that is so surprising.

Jihad blogs based in the US, file sharing sites and all sorts of other means to put together an end to end communication path are all conduits that must be followed.

Few are aware of how much a role US based NAPs (Network Access Points) where all the peering of ISP's on the backbone level take place.

MAE East carries traffic as a gateway to the rest of the world. Others do the same for South America from Miami.

There are many forms of communication beyond phone calls that are actively being used.

Anyone well versed in the technology sector of the net could put together a list of all the areas that have to be watched and reverse engineer and do pretty good guesstimations of how the bad guys would try to exploit the systems.

Fixation on voice calls alone just doesn't cut it.

Also a lot is made of the tapping capability existing for the net by the major backbone providers.

Well that was mandated under the CALEA legislation to allow net wiretap equivalents. Just how else could the provider comply otherwise.

cboldt

-- Most seem to be focusing here on the limited communication of voice traffic. --

In the FWIW department, I use the word "call" as a convenient shorthand for all data communicated on a wire, regardless of it's nature. I.e., analog (if any still exists) and digital of "whatever," voice, text, images, web-page deliveries, e-mail, P2P, conferencing, SSH/FTP/SFTP/SCP traffic, etc. It's easier than typing a list every time the notion of "communications" comes up, and it seems to make a suitable mental impression.

SlimGuy

Heck last week I was in Hawaii with friends on a fishing trip for Blue Marlin.

My mini PBX at home was forwarding calls to me either via my cellphone or SKYPE on my laptop.

Several miles offshore I could still check the security cams at my residence remotely.

Even though I was in Hawaii, when I surfed the net I was doing it via remote login to my home servers to provide the same ip address so no one could consider I wasn't at home.

Technology has totally changed the communication framework FISA was written for and it needs to be brought up to speed.

SlimGuy

I had multiple laptops with me on the trip, due to the fact that on the way west I stopped off in Vegas for the DefCon gathering and there you needed a totally clean virgin laptop with a new install which was the only way to fly.

For those who don't know what that is, it is a gathering of all the best hackers (in the best sense of the word) and the bleeding edge of computer security issues and exploits.

SlimGuy

Cboldt

The reason I made the distinction is that non voice traffic has a higher percentage chance of being routed through a US based switch than international voice calls.

That takes a real in depth familiarity of how the web is routed in the real world is configured and the realities of web congestion multi-pathing as packets are tossed around the world.

RichatUF

I'm interrupting, this story caught my eye-

Hatfill's libel case?

Didn't know it was before Judge Walton

SlimGuy

RichatUF

Yup same dude and also he is on the FISA court now.

Wonder how it would have played out if he made a similar ruling in the Libby case of press having to list their sources.

Poor Fritz (as in on the fritz) would have had a pucker factor that would have launched a lawn dart in at least low earth orbit.

boris

Alternate plausible scenario:

Arguendo: In order to acquire all available purely foreign communications of a foreign target (on US nodes) it is technically necessary to first acquire all communications of the target.

In Jan 2007 the admin and FISA court agree that accessing purely foreign communications of a foreign target is executive constitutional authority that trumps 1801.f.2 so admin gets access to foreign-to-US as gravy.

In Apr 2007 Judge Fubar UNEXPECTEDLY declares accessing purely foreign communications of a foreign target on a US node requires a warrant. This reverses the earlier agreement by undermining it. No executive constitutional authority therefore no TSP.

RichatUF

SlimGuy-

Yup same dude and also he is on the FISA court now

Which was interesting he let Miller slide-oh well. And hell-welcome back, Hawaii, DefCon-could make the beginnings of a story...

I'm goofing up the thread again-I got lost somewhere between: TSP and 1802.f.2. I also can't quite figure out what the specific disagreement is [note: I've had a few beers at this point]?

I thought the way the "problem" was described was that a 'basket of warrants' were denied thus parcipatating the crisis-that would seem to be a problem between what technology does and how a statute is interperted (or how a judge thinks technology should work).

Anyway the discussion is pretty good and appricate the efforts of cathyf, Cecil, cboldt, and boris in trying to devine this out

RichatUF

appricate...appreciate

It would be great if I could spell

Rick Ballard

"I also can't quite figure out what the specific disagreement is"

What?

Don't you know the difference between homou and homo? Are you really going to slip into the Athanasian heresy?

Arianist!!!

PeterUK

AT THE UNIVERSITY OF MARYLAND: "A spokesperson for the Food Collective says, 'no one should have to have contact with people whose views they find hurtful.'"
posted at 06:40 PM by Glenn Reynolds Permalink

Just about says it all.

cboldt

I'm still dubbing around with the FISA statute.

I'm of a mind that there are scenarios for a "GO-Stop" from the FISC, that flow from other than tinkering with 1801(f)(2).

Just the same, changing 1801(f) as the NSA requested with the language of S.1927 DOES resolve the issue.

But just because the 1801(f) change resolves the issue, doesn't mean that the GO-Stop sequence came as a result of changed parsing of 1801(f)(2) against certain fact patterns.

The GO-Stop may have come from revised parsing of material in the 1804 court order section.

boris

Rich, according to 1802.f.2 of FISA, a warrent is required to intercept communications between a person inside the US and a person outside the US using a node (wire or switch or point) located inside the US.

The TSP (Terrorist Surveillance Program) has been intercepting such communications (bypassing FISA) without warrant based on executive authority, the AUMF and the sealed case.

In January an agreement was reached that TSP could continue operating under FISA. How 1802.f.2 was addressed is unknown.

WAPO has a pretty good article.

RichatUF

Rick-

Are you really going to slip into the Athanasian heresy?Arianist!!!

The devil made me do it-or was it Rove?

cboldt-

The GO-Stop may have come from revised parsing of material in the 1804 court order section.

This might be what I'm not understanding. If the TSP was used to collect communications [of known or suspected al Qeada operators from within the US to abroad], why would a particular presentation in front of a judge produce radically different results between January and May(?) without some change of facts [ie one of the targets first identified as a non-US citizen then later changed to US citizen, or some other derivations, a cell phone that was being watched was orginally in Canada but moved to the US].

boris-

Thanks. I'll take a look and look up that old NYT article as well. This is an interesting discussion [the intersection of technology and law].

So I think I'll get a cold one and start my homework

hoosierhoops

slimguy:
Heck last week I was in Hawaii with friends on a fishing trip for Blue Marlin.

heck slimguy, The best reason to hang in Hawaii is the Irish Rose in Waikiki, Tom Selicks nightclub, Surfing, Ali mauli shopping center, snorkling in Hunama Bay and Turtle Bay country Club..
The idiot that I am have never once gone fishing..wait for it....wait for it..
The Beaches.....

cboldt

-- without some change of facts [ie one of the targets first identified as a non-US citizen then later changed to US citizen, or some other derivations, a cell phone that was being watched was orginally in Canada but moved to the US] --

Reports are that a judge wouldn't give some sort of "basket warrant," which doesn't sound like a revised situation on something as narrow as one person changing citizenship, or one phone changing location.

I think gaming the 1801(f)(2) definition is a possibility -- where it wasn't a fact that changed, but instead, various judges (or one judge changed his own mind) came to a revised conclusion upon applying the facts in the warrant application or sealed certification against the terms in the statute.

But gaming 1801(f)(2) isn't the only possibility for experiencing a Go-Stop event.

If the report of a basket warrant is literally true, i.e., the DoJ applied for a Court order, then the "Go-Stop change" may appear in how the judge construes the contents of the application for a order. That is, once the government agrees to a warrant application process (i.e., agrees that it's undertaking electronic surveillance), then there's no need to change the argument to "no warrant required," and there's no need to game 1801(f)(2).

In this case, the "Go-Stop change" may be from accepting some sort of very broad "basket warrant" (e.g., one covering ALL switches), to requiring individual warrants on each one, or some other permutation that result in massive proliferation of warrants. I don't have a handle on the details because I haven't studied 1804/1805; so the above is just general speculation.

As I said above, even if the Go-Stop is the result of an 1804/1805 "indian give," a less burdensome approach is to carve the surveillance clean out by redefinition of 1801(f)(2).

Attention drawn to 1801(f)(2) by the administration's preferred (demanded/required) statutory revisions in 2006 and 2007 -- as well as the administration's pointing to "foreign-to-foreign" acquisitions being impacted, that too in both 2006 and 2007.

Syl

At the point the single activity of tapping a US-based switch is put in front of the court, what the administration labels TSP, and all the other data on that switch, is at risk of an adverse ruling from the court.

Ah! I get your argument now. It's a conspiracy! Bush 'defined' the program in such a way that when presented to the FISC a ridiculous ruling just HAD to ensue and thus, twirling mustache, Bush gets FISA changed.

So tell me then, o brilliant one, just how should the NSA program be defined so that there is no need whatsoever to change FISA?

Could it be, o dubious one, that the combination of national security necessity and advances in technology rendered the language of FISA utterly inoperable NO MATTER HOW the program was defined?

Syl

been a while ::grin::

cathyf
why would a particular presentation in front of a judge produce radically different results between January and May(?) without some change of facts
The court session runs May to May, with significant changes in personnel. I think that you can't underestimate the effect of different judges. Judge in January gives out blanket warrant, different judge in May says no way.
SlimGuy

Hoosierhoops

I was stationed at Pearl for 14 years and still have a condo at Yacht Harbor Towers.

I go back a few times a year for various activities.

boris

Just for old times sake let's revisit TSP as defined by the administration.

[TSP] only targets international phone calls coming into or out of the United States where one of the parties on the call is a suspected Al Qaeda or affiliated terrorist

The foreign-to-foreign communications that go through nodes in the US, do both. They come into AND go out of the United States. That particular subset of all foreign-to-foreign communications does in fact fit in the "definition".

cboldt

After considerable review and analysis, I'm confident that the GO-Stop event is related to sections 1804/1805 (application for and granting of court order), and not to section 1801(f)(2).

The remedy provided by S.1927 addresses the application and grant issue, and more.

boris

Enabling TSP by getting a favorable "court order" from Jan 2007 still doesn't make reversal a few months later predictable. Perhaps riskier than expected.

cboldt

Knowledge of the effect of 1801(f)(2) is not a predictor of reversal on 1804/1805 grounds. In order to gauge the reasonableness of the 1804/1805 application and rejection, one would need to see at least the rejection rational.

But the nature of the consequences of "being kicked off" a US-based switch (a euphemism for being required to obtain court orders per the 1804/1805 system, coupled with that court order being unworkable as a practical matter) were foreseen.

One remedy would be to revert to the warrantless use of the US-based switch. But if that is not viable, say for political reasons, then 1801(f)(2) results in the need for a warrant to use the US-based switch, and the NSA is back at "being kicked off as a practical matter."

Not a total loss, I'm sure, but certainly a reduction in acquisition, i.e. acquisition becoming limited by constraint of court throughput and rules rather than by the previous constraint of hardware/software throughput unimpeded by any court-imposed restrictions or rules.

The nature of the acquisitions subjected to this degredation in capacity includes those of type "one person in US, one person not in US, one person AlQ"; as well as those of type "foreign to foreign".

Likely, under a capacity-limiting court order regime, the NSA lost the ability to generally acquire (meaning "to grab any part or all of it") the foreign-to-foreign communications that appears on those US-based switches.

cboldt

The extent of the degradation might be measured as a fraction of the acquisition obtained without the interference and increased workload that comprises interfacing with the court.

Without understanding the 1804/1805 details as imposed by the court (and a mess of other details as well, about manpower levels, skills, etc.), any guess about the extent of degradation is pure speculation. We do have media reports that say "on the order of 75% (degradation)."

cboldt

See 50 USC 1805 Sections (a)(3), (b), (c), and (g) for the notion that "target" might be fairly narrowly construed. At (g), note the authorization of "surveillance not targeted against the communications of any particular persons" is solely provided for [non-acquisition activities]

See Section (e) for 90 day duration of order.

Sue

Syl!!!! I've missed you.

boris

Perhaps there was (e) disagreement about 120 days (agents) vs 1 year (foreign power).

cboldt

-- Perhaps there was (e) disagreement about 120 days (agents) vs 1 year (foreign power). --

That possibility can be evaluated against material at hand, and the evaluation can deliver the correct answer with near 100% certainty.

Sue

http://www.denverpost.com/ci_6624865>In keeping with the sex theme

boris

Good thing you didn't call it a canard!

Sue

Wrong thread. ::grin::

cathyf

Somewhere there was also a complaint that went something along the lines that the preparations of the legal documents was consuming large portions of the time of the multi-lingual analysts.

Now we know that, roughly speaking, the surveillance has levels. Large numbers of communications are monitored via computer. The computer flags out certain stuff as needing human attention. Only a tiny fraction of the total amount of monitored communications can be seen by any humans, because there are a limited number of people. And when you come to people who have security clearances who speak Arabic or Pashtun or Farsi, etc., it's a pretty small number of people.

Is it possible that in January the submission was written and included written copies of the transcripts which the analysts had already prepared in the course of doing the surveillance, but then in May the (new) judge demanded that the analysts present themselves for questioning, and/or produce all sorts of documentation that they would not otherwise produce in the course of the surveillance?

cboldt, you are focusing on ultimate legal outcomes (X, Y or Z ruled illegal on grounds A, B, or C). But we certainly know that the normal functioning of the judicial system is such that just being involved in litigation an be the major part of the punishment -- in a huge portion of civil actions whether you ultimately win or lose the judgement only marginally changes your costs of participating.

We've seen that judges have extreme discretion to act as petty tyrants if they so please. I think that we should also not discount the possibility that some FISA judge decided that in order to make decisions he needed documentation that required hundreds or thousands of hours of analyts' time -- and since analysts are an extremely dear resource, it meant the de facto end of some significant fraction of their surveillance activities.

saki

According to this AM's C-Span program, 3 judges from the ninth circuit will today hear matters pertaining to 2 cases involving the TSP. One case involves a Saudi National in Oregon whose attorney mistakenly was given logs of wiretaps(?) by the Treasury Dept. The attorney says these logs reflected the fact that his clients USA phone calls had been intercepted. The second case is a suit brought against AT&T for their cooperation with the government. This seems to deal with the "switches" controversy.
The government is asking that both these cases be dismissed for National Security reasons.
C-Span will tape oral arguments and air them sometime on Saturday.
Sounds like you who are strenuously discussing this may be interested in the oral arguments.

cboldt

-- One case involves a Saudi National in Oregon whose attorney mistakenly was given logs of wiretaps ... --

That's the al Haramain case.

-- he second case is a suit brought against AT&T for their cooperation with the government.>/i> --

That's the Hepting case.

A good number of the motions and orders for both cases are freely available on the internet.

cboldt

hit and run

Syl:

Posted by: Syl | August 14, 2007 at 10:14 PM

been a while ::grin::

Posted by: Syl | August 14, 2007 at 10:14 PM

Hey, no big deal -- I mean right now, The Corner has been larwyned Syl'd. ::grin:: Though I suspect they will fix it shortly, it has already been well past 15 minutes that it's been like that...

boris

Hey,I found this pre-S.1927 paper at wiki. It’s a pdf you have to download to read but it appears to confirm a lot of my speculations on this thread so it looks good to me.

I’ll include a couple of quotes that affect the most recent “arguendos” from me and cboldt.

The Ear of Dionysus: Rethinking Foreign Intelligence Surveillance

K. A. TAIPALE
Yale Journal of Law and Technology, Vol. 9, Spring 2007

To intercept these kinds of communications, filters (“packet-sniffers”) and search strategies are deployed at various communication nodes (i.e., switches) to scan and filter all passing traffic with the hope of finding and extracting those packets of interest and reassembling them into a coherent message. Even targeting a specific message from a known sender may require scanning and filtering the entire communication flow at multiple nodes.

* * *

Advances in information technology, the borderless nature of terrorist threats, and global communications that may travel on random paths across political borders has made place-of-collection and U.S. personhood an increasingly unworkable basis for controlling the collection of intelligence because it is in many cases no longer technically possible to determine exactly when a communication is taking place “to or from the United States” and no practical means exists to determine if a particular participant is a U.S. person or not until after further investigation.

As I wrote in my search analogy:
There is no wild card specification for “people in the US” or for “people not in the US”.

kim

How can law keep up with the cutting edge of intelligence technology?
=============

kim

I think the answer is that despite the necessity to be ahead of the law, it is not necessary to be other than the intent of the law. But how to ensure that intention remains pure in practice is the rub.
===========================

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Wilson/Plame