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September 19, 2007

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"... telecoms would be immune from liability if the Attorney General certified that the law did not require a warrant for the surveillance that they allowed. "

i think there's evidence that there was a time, early on, without an AG certification.

from USA TODAY:

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

my bold.

btw, i don't think this, if true, takes away from the bushco liability - it just means the AT&T et al. are not off the hook.

i'm not caught up on all the comments, so maybe this has already been discussed?

You can bet that, besides the cooperating telcoms not getting the assurances contemplated by the statutes, they were also PAID for their efforts. Carrot and stick.

Anybody who thinks the government aims to protect privacy, I have a bridge to sell. "Us v. Them" isn't always on a political party dividing line.

cboldt - is that "not" intended? If so, how much do you think they did with out coverage docs from the govt.?

The attempts at immunity are all about shielding the Bush Administration. Telco immunity is just another shell game fraud being sold like snake oil to the public so that BushCo continues to avoid accountability.

I agree with this too. I don't think the cooperating telcoms have the type of authorization that the statutes contemplate. I think they agreed to cooperate based on being "read into" the secret program, or some other arrangement that doesn't fit the statutory form.

I also agree that a significant objective is to shield the current administration's actions from view and criticism. From view because it's probably been understating the extent of domestic surveillance, and "from criticism," well, that's obvious if they're found out as blatant liars, regardless of their motivations.

But I sure don't expect Congress to pierce the veil. They are believers in and enablers of "big brother" and "big government," dutifully selling snake oil to a gullible public.

I see an interesting interplay between "immunity" and the courts that are now handling cases. IIRC, Anna Taylor Diggs opinion from the WD of Michigan was "hurried" by some outside force - perhaps the multidistrict order being in the pipeline, I don't recall exactly what. But Congress can be pressured to grant immunity by the issuing of an order to produce evidence or a finding of liability, and the Courts can be hurried into decisions by Congress taking up an immunity provision.

-- cboldt - is that "not" intended? --

Yes. I don't think the government provided a letter with the contents specified in the Title III statute. In other words, if the facts came out, then, as a matter of law, I think the telcoms have liability.

Then comes their effort to shift liability to the government, who may well have crafted indemnification agreements and promises to pay for any and all legal defense, etc.

I see the privacy side of telecommunications as effectively a nationalized enterprise. But the government wants to create and preserve an illusion that it isn't running a secret surveillance force. The P&L side is a bit more private, while being a regulated private industry.

I do believe we have lost another right. Your "one a day" insult from your government. Too bad it isn't 4 or 10 a day that we learn of.

-- how much do you think they did with out coverage docs from the govt.? --

I think they had "coverage docs." I don't think those "coverage docs" are in a form that fits the Title III statute.

The NSA was operating pursuant to an EO, and the telcoms that cooperated had to somehow shield their shareholder side from the consequences of being found in violation of "the law." (They can argue that the EO is law too -- setting up a contest between Congressional Law and the EO). "Coverage docs" could be a secret indemnification agreement, as well as some sort of payments, disguised who knows how, to keep the books from becoming skewed.

I am betting that the telco attorneys are shrewder than he is thinking. And I agree that pressure can be a two way street; especially considering that one of the players here is that damned "librul" 9th Circuit. Those two things being said, let us consider this thought for the sake of argument. If per chance cboldt is correct and the telcos don't have at least the CYA backup contemplated by the statutes (My experience with them inclines they may actually have more than that); for them to expose their customers and other citizens so collected up to the government's "Program" without having even the coverage indicated appropriate in the statutes would be extreme bad faith. I imagine that any immunity cravenly granted by Congress would be based on the "good faith participation of the telcos". The plaintiffs may still be able to maintain on grounds of bad faith. I put this out only for discussion, i am not saying it is the case....

Ok, got ya, that is consistent then.

bmaz

Can you explain that? Are you saying that you could (or definitely would, though with these amoebas, I'm not holding my breath) build immunity such that the telecoms only got it if they could prove they had made a good faith effort to ensure what they were doing was legal? And if they neglected to do what they normally do--get authorization--they couldn't provide good faith?

bmaz -

but how do you square the report (above) that Qwest couldn't get any CYA docs from the NSA. or do you think AT&T got something more than the NSA was willing to give QWEST?

-- If per chance cboldt is correct and the telcos don't have at least the CYA backup contemplated by the statutes --

I think they have CYA backup ... I just think it takes a form other than a "no warrant needed under Congressional Law" type letter.

I also think the CYA backup is itself a classified document. Shell game inside of shell game. But as you've noted, it isn't the telcos who have ultimate liability -- or at least they didn't step into that position thinking they (and their shareholders) were "alone and unprotected."

Imagine the shareholder suits on a finding of massive liability!

According to Morton Halperin, former Deputy Secretary of Defense whose own phone was tapped while he served on Kissinger's NSC, one of the chief purposes of the FISA statute at the time it was drafted during the Ford-Carter years was to have AT&T (before its breakup) serve as a sort of private sector watchdog on any effort by the Feds to obtain domestic wiretaps without warrants.

The thinking by the FISA drafters was that Ma Bell would act in its own self-interest by doing everything it could to avoid potential civil and criminal liabilities, and would, if pushed to do anything questionable, itself take issues to the FISC (FISA Court) to review problematic requests.

I wonder what ever happened to that original intent of Congress? A grant of retroactive immunity for those Telcos that didn't challenge The Program would obviously eliminate this deterrent and corrective purpose of the original law.

Has Congress lost its institutional memory, or did everything really change on 9/11? I can only speculate that there are aspects to domestic surveillance that some leaders in both parties, the White House, the Pentagon, and the Intelligence Community would rather the public never learn about.

-- how do you square the report (above) that Qwest couldn't get any CYA docs from the NSA --

NSA didn't want to provide a specific form of document. Qwest was looking for conformity with Congressional/statutory law, for whatever reason, finding the surveillance order exposed them to liability, and not trusting whatever authority and agreements it was getting from the NSA.

I think AT&T was willing to assume the risk, because it knows it will survive by hook or by crook. Nothing to lose -- just following orders and the people will still need the communications infrastructure.

-- Has Congress lost its institutional memory, or did everything really change on 9/11? --

Those aren't mutually exclusive. 9/11 amplifies whatever big-brother/centralization tendencies are already present. So do natural disasters.

Funny thing, this "institutional memory." The place it should be important is with the people, and the people lost it a long time ago. Hello Britney and Paris!

What were the programs where the press (back in the day of newsprint) was heavily infiltrated by CIA? Operation Mongoose or something like that? What's to say certain AT&T "employees" aren't likewise endeared to a managed and manipulated society.

Well, yes you certainly could fashion it to cover only good faith actions. I don't necessarily know that they will specify a level of relative faith, scienter, or however it is put. But the talking points uniformly to date are phrased in terms of "our friends the telcos helping out the government" or "gee whiz the telcos shouldn't be liable for doing the right thing" etc. All that kind of presupposes that the telcos acted appropriately under the law and circumstances; but if the facts are somewhere analogous to (but not specifically like) what cboldt opined, then you could at least fashion an argument they didn't even do the minimum they should have been doing and were thus tools acting in bad faith. Hey, this is theoretical, I am not saying anybody would get to far in a trial or appellate court with it. But it is an important concept for our gelatinous Democratic congress to consider when evaluating what they are doing. If they want to immunize everybody for everything, they will find a way to do it. But they are doing it in the face of logic and morality no matter how you look at it. And it all boils down to that it is the Bush Administration's liability and wanton illegality and/or unconstitutionality. If telcos acted in good faith, they are already covered; if they did not why should they be given immunity?

thanks cboldt - that makes sense. especially as QWEST was threatened with loosing future classified government contracts... and soon thereafter CEO Nacchio was charged (and eventually convicted) of insider trading. it took guts for QWEST to say "no".

On the Qwest and Nacchio deal, that is extremely complicated by the separate issues Nacchio and some other execs had. I have a pretty good inkling that Nacchio tried to leverage his cooperation with the government for more bigger contracts, more "points" or "juice" if you will because he was desperate to cover some irregularities, losses and problems that were present due to his general stewardship of Qwest. The government called his bluff and burned him. He played a hand of aces and eights on the come with a crew that doesn't get bluffed.

The wornong doings of the past were Plame's dad who worked at NSA. I guess everything he did there is okay now, except the whole program is blown.

A push from the WH today too, on this subject.

Fact Sheet: FISA 101: Why FISA Modernization Amendments Must Be Made Permanent
President Bush Discusses the Protect America Act of 2007

I take the demand for immunity as an admission of ongoing secret surveillance.

Whatever the ass-covering motivations are behind this bill, the fear that the telcos would turn around and seek indemnity from the government if they get hit with a big judgment can't be one of them. I don't see how the telcos could plead a claim for immunity, unless the government expressly promised it to them, which I really doubt.

There are tort-based theories of contribution, but I'm not sure those theories would meet the exceptions to sovereign immunity set forth in the Federal Tort Claims Act.

I think that the government is less afraid of monetary liability than it is of EXPOSURE, which is what discovery and a trial on the merits would involve. Unless, of course, the telcos manage to get the cases dismissed on the "state secrets" theory....

OOPS.

I meant to say, "I don't see how the telcos could plead a claim for INDEMNITY, unless the government expressly promised it to them...."

litigatormom - It actually turns out that much of the liability is specified by statute, or at least arguably is so I am not sure FTCA is as germane as you might think. Secondly, I am just hard pressed to believe that the telco lawyers didn't do a lot better job on documents than people are giving them credit for. It is my theory that the Bushies are worried about both forms of accountability, monetary from the treasury and for their own exposure as wanton derelicts; with the far greater emphasis on the latter.

I can imagine an express written promise of indemnification -- especially as there seems to be a secret EO to support it. I can't imagine a programmatic surveillance regime, outside the statutory law, without some sort of cover.

I do agree with the sentiment that the government is worried about exposure. If the people figure out or think they're in the USA equivalent of the USSR, the political picture as between the elites and proles starts to feel a bit different. Cynical me figures the proles can be easily fooled into indifference.

One surreality here is the combination of admitting the TSP (for your own good), and not using the legal justification for it (FISA + AUMF = legal) in defense of the suits.

"One surreality here is the combination of admitting the TSP (for your own good), and not using the legal justification for it (FISA + AUMF = legal) in defense of the suits."

Federal judges (especially in the 9th) are not proles. And there you have it.

The financial remedy is designed to accommodate one-off violations, not wholesale snooping of all international traffic (and who knows what else they are hiding).

I'm not sure how the class action plays out -- do all AT&T customers get a thousand dollar check? I.e., identification of the class with any particularity DOES become problematic. On the one hand, if the surveillance is honestly closely tailored, then the bad guys get a heads up. On the other hand, if EVERYBODY is a suspect, then trust in government is changed (I was going to say compromised, but some people prefer a stasi-style overlord, for their own good of course) with a small risk of political instability - as well as whatever stigma attaches.

At any rate, if the Courts eventually find liability, that will be a big stinky mess of its own right, and I don't know how they'd implement the financial remedy.

Back on May 12, 2006, I wrote a diary on Daily Kos about a statement by Nacchio's lawyer, Herbert J. Stern, who told reporters that Qwest refused to provide the NSA with customer records after deciding that the request violated the privacy law provisions of the Telecommunications Act. I was intrigued by who was giving Qwest better legal advice than the rest of the telcos seemed to be getting. I'm pretty sure that advice came from Stern.

Stern is a former US Atty, and he was appointed a Federal District Judge in 1973 by none other than Richard M. Nixon. Stern is known as a corruption fighter and "is sought after to handle cases involving dishonest government practices" (quote is from an article about Stern in his alma mater's online newspaper). Stern was also special counsel for the prosecution against Oliver North in the Iran-Contra legal proceedings.

I understand that there are those who may question Nacchio's integrity, but I can't see a lawyer like Stern representing Nacchio if he truly thought the man was a crook. Could this be another Donald Siegelman situation? I don't know, but I do think Stern has the background to ascertain whether or not the NSA was overstepping its authority.

grayslady

I had an amazing conversation with a mid-level Qwest executive well before this whole scandal erupted. We were sitting next to each other on a plane to the west coast, and he was reading the bible until he and I started chatting.

The executive had a lot great to say about working for Qwest. But he admitted, straight out, that his company was doing ethically troublesome things. (I kind of tried to suggest that he was soon going to be in the position of Anderson employees who knew of the corruption but didn't leave, but it made no impact).

The stench at Qwest was real. My only question is whether Qwest got selectively prosecuted because of the NSA thing.

Hi, cboldt -

You're thinking of Operation Mockingbird. Mongoose was the Bay of Pigs and poisoned cigars stuff. Anyway, you have a point about the mutuality of interest between the IC and the Telcos in indemnifying themselves for this FU.

This is particularly the case for NSA and its private contractors which in the past seven years have taken over many of the signals intercept and analysis functions once carried out by the Agency itself. One can say accurately that today that NSA is AT&T (along with Verizon, Lockheed-Northrop, CACI, and all the rest.) See, www.dailykos.com/story/2006/5/26/11367/6684 ; www.dailykos.com/story/2006/5/20/16437/4670

If it hadn't been for the repeated "intelligence failures" (i.e., policy failures) since Bush-Cheney took office, the public would likely have never learned a fraction of what's come out about warrantless domestic surveillance, elint, and data-mining that started even before 9/11 (eg, ECHELON, Able Danger, Carnivore). See, http://thenexthurrah.typepad.com/the_next_hurrah/2006/05/pigs_fly_and_em.html#comment-17473178 ; also, generally, http://www.truthout.org/cgi-bin/artman/exec/view.cgi/48/17009

Folks

Why is it not likely that the AG approval was the DOJ authorization--the one that Comey refused to sign? That is, we know the AG signed off on the program every 45 days. Would that not count as authorization?

cboldt - Jeebus, you are not kidding on the damages calculation and allocation. If I read the complaints in NDCA correctly (and I remember correctly; both often shaky propositions) and I think it was the EFF and/or CRR I looked at; they were indeed alleging per each act per each relevant plaintiff. Huge numbers. I don't know, I figure the money will work itself out; it always does. I just don't want the legal and moral culpability bounced; I want the suits to proceed.

grayslady - I know of Stern. I don't really know personally how the Nacchio deal played out. What I mused about above was what I heard as scuttlebutt from some folks around the criminal case; but I cannot vouch for it. Make no mistake though, there were a few accounting/options/or similar type of irregularities at Qwest. I don't personally think they in any way support the way Nacchio was prosecuted and sentenced; but there were some issues.

EW - I don't know that it is unlikely. It may be, it may not be; who knows. It may be the AG letter, it may be something other than the AG letter, it may be both. May be none of the above. Who knows. All I know is I have seen telco lawyers be very careful and shrewd on things similar but a lot less important than this. I just don't see them screwing the pooch without cover; what form it is in I have no clue.

Just a matter of clean up -
Rather, bmaz is persuasive that there is not direct liability on part of the telecoms (except as it relates to the spying that occurred in the 24 hours when Bush authorized it without DOJ, and therefore AG, approval).

There was more than 24 hours at issue. IIRC, no one at DOJ "signed off" until AFTER the corrective measures that Bush said Comey could make were put into place.

Statutory construction 101. Where you have something like the telecom statute that makes wrongful transfers subject to penalty, human nature and business models like a bright line standard. How will I know it isn't "wrongful" and I am ok in taking this action is a very typical reaction. So lots of statutes (and some case law at times) creates what we call safe harbors where, if you do XY&Z you will not be held liable under the statute, despite its grey areas.

So the telecom statute has two safe harbors that bmaz has mentioned - one is the warrant and one is the letter form the AG. Now, the statute doesn't say that those are the ONLY ways info can be handed over and not be subject to penalty. The statute is a bit like a mapquest roadmap, with the mapquest route highlighted. Here is a way that will get you from A to B

That doesn't mean that there may not be other routes, though, but they take greater risks. So there are really two different things at issue when discussing cya documents or situations. One would be a CYA approach that uses something other than a safe harbor to take the telecom's turnover of info out of the "wrongful" category. The other would be a CYA approach that indemnifies, reimburses, etc. the telecoms if their turnover was found to be wrongful.

Now, keep in mind that while everyone has been talking about the $$$ damages, there is also a criminal element in the statute. Granted, while loyal Bushies run amok at DOJ, the focus has been more on soliciting the commission of crime than on engaging in investigation, prosecution and redress.

So - with that background, here's my take. I've said that the Ashcroft show down couldn't have involved an order that met the "safe harbor" statutory requirements, because Comey testified in response to Spectre's questions that the document he was asked to sign off on was not generated pursuant to any statutory authority. So add the Qwest story and Comey's story (not that there couldn't be documents other than the one involved in the Ashcroft showdown that might have been provided to the telecoms) and it begins to look very unlikely that the telecoms ever got a safe harbor letter or we can be pretty positive they never got a safe harbor warrant until, possibly, the short period of time when supposedly "the program" was brought under FISA court supervision this year.

Even if they did have an AG letter, I argued elsewhere on where the safeharbor might breakdown, but still, assuming they don't have that - what else do they have? Well, they may have something like an Executive order that they think could be used to be "as good as" the safe harbors, or a finding of exigent circumstances, etc. - something that they think actually provides a defense on the wrongful front. Maybe it is that they don't do any of the turnover themselves, they just responded to govt "regulation" that allowed gov to set up its own switch stations to shadow theirs and access the telecoms info without their direct activity in turning over the info in the transmissions - all they turned over was info on how to put install a mirror switching station maybe? I'm not very techie, but some kind of parsing like that which the statute would not have contemplated bc it wouldn't have contemplated such a massive, govt-type activity. [If I didn't explain that well - I'm saying they may have an argument that runs like this: Statute says I can't look at my daughter's diary and give that info to Gov; but statute doesn't say I can't hand over to gov the key to her diary and show where the diary is and have a cuppa while THEY look through themselves]

So memos, etc. on those kinds of legal issues and/or agreements on who handles the info etc. would be one set of CYA docs that are non-statutory and that would go to the issues of $$ damages and criminal liability. Still, if the potential liability is massive, and in particular if you have another telecom (like Qwest) saying - better be careful boys, doesn't pass the smell test - then I think telecom lawyers would probably require some kind of indemnification agreement, where if there are $$ damages, then the company is insulated. But then what about criminal charges?

Well, obviously if the AG is soliciting your crime, he's not likely to jump on board with prosecuting you WHILE HE'S IN OFFICE, but then what?

This may be where the OLC opinions became pretty important to the telecom providers and why someone pulling strings at DOJ probably had a good laugh (in that mean spirited, spiteful way that torture supporters tend to laugh) over a guy who may have been unsatisfied with the criminal protections being targeted and jailed anyway.

In any event, the telecoms may have been sold the bill that, as long as there is an OLC opinion authorizing this - not only will WE not prosecute you - our fellow criminals - but no one else in DOJ will ever prosecute you, bc the OLC opinion will be treated like the Law of the Lawless (although not necessarily binding in the civil matters so the indemnification would still be required for those).

Then the OLC opinion appears about to be pulled.

No criminal coverage now if they get shot down. The "in the know" conspirators have something to think about - in GOV as well as at the telecoms.

Obviously, if the Chiquita case is any standard, it takes something pretty darn egregious to make the Bush law firm, fka DOJ consider charges against individuals with the right Administration connections, but there you go. There might be a time when there would be someone quite a bit different at DOJ and that time (they had to particularly be thinking this in 2004) might come while Statutes of limitation had not expired. And keep in mind, as a part of the horizon line, that Arar's lawsuit had just hit in January prior to the hospital showdown - - so victims of the DOJ crimes were starting to show up here and there.

IMO, the telecoms probably did not have any safeharbor protections and probably went with a layered defense approach A) some kind of inane argument that what they were doing was not technically - if you parse well - covered by the liability requriements of the statute or there were exigencies or other arguments they could structure but that might well be losers, particularly the longer the program drug on with knowledge and participation; B) an indemnification from Gov in case they were found liable for civil penalities; and C)and OLC opinion to forestall any criminal prosecutions.

The OLC and indemnification are probably classified. If a part of the parsing prong is something like reliance on an Exec order or similar doc other than a safe harbor doc, that doc is probably classified as well.

So IMO, those are some of, but not all of, the kinds of threads that would need to be separated. fwiw

If the Telco's can't show that they acted in Good Faith up front (even if they got told to 'go fuck themselves') - and give in evidence their liability due diligence paperwork on behalf of the shareholders (just like our spineless Congress should have done on the AUMF), then the Telco's are Co-Conspirators with BushCo.

The suits have to be forced to 'know' if the Telco's got their arms twisted into BushWorld, or if they just jumped-in with Team Bush as 4th Branch Elites, secretly ruling the rest of US through the proxy Kabuki of Our own Constitution.

The 45-day sign-offs, after the due-diligence should have been done but wasn't, imvho, is like Merck sending VIOXX to the shelves with FCC approval after [fucking-up, hiding, never doing] the testing-for-human-safety phase.

Folks

Why is it not likely that the AG approval was the DOJ authorization--the one that Comey refused to sign? That is, we know the AG signed off on the program every 45 days. Would that not count as authorization?

Well, story leaks indicate that the telecom issue was at the center of the showdown, so IF that was true (big if with partisan and personal reaons supporting the leaking going on) then it would be inconceivable that Comey would not know of the statutes and the safe harbors. EVEN IF telecom issues were not at the heart of the showdown and the leaks are erroneous plants, still, by the time he testified to Congress, Comey would 100% have known about the statutory safe harbors just give all the issues that have come up.

So with that - - he flat out says that what he was signing off on had no statutory basis. IMO, and as much as I am not a fan - - he wouldn't have gone into Gonzo cutesy land on something like this, where things will out, eventually, and reputations will stand or fall and where being too misleading and parse-y could eventually lead to charges for misleading Congress. For that matter, I think Spectre had the telecom legislation firml

Exchange:

SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning.

I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

You can parse a lot and try to come out with some way where that is consistent with the 45 day renewal including the statutory safe harbor - - but I don't buy it and as much as I am not a fan, I do think from an ethical and practical matter he'd do better than that.

Here's my speculation:

When the administration "brought the TSP under the FISA court", the court ruled that the program had operated illegally (outside of FISA) before that time. The immunity that the telcos thought they had based on FISA disappeared. The telco lawyers started balking at cooperating with the government, saying, in effect, bring us a FISA warrant or unplug your stuff (remember, the telcos may not even know what the government is doing in those secret rooms). The administration turns around and tells the all too gullible Congress that we can't do anything because those mean old FISC judges are making us get warrants. It may even be true in some perverse sense if what they've done is tie the domestic and foreign datamining operation so closely together that one can't operate without the other. In fact, I can see these guys making a conscious decision to architect their systems in such a way that if the illegal stuff stops, they can't even do what they used to be able to do legally (listen to overseas stuff). That would make all their rather stupid lies almost true.

Mary, I know you are not a fan, but a possible explanation for what you are seeing is that Ashcroft was/is 'in the Kingdom,' and Comey wasn't/isn't.

This is just speculation.

Ashcroft sold his soul to BushCo, and the price for that is Blind Loyalty, Unquestioning Obedience and Total Secrecy - possibly sworn-to on pain of death.

My guess is that the DoJ Professionals caught wind of the 4th Branch/Kingdom and started probing to assess the beast. It must have taken years, but they finally figured out that the Legal Opinions supporting The Program were compartmentalized away from the Certifications that Ashcroft was pledging-to like an obedient but mindless minion every 45 days.

Comey and crew went to Ashcroft and confronted him with their research
- the OLC Opinion - and convinced him that his regular signings were being made with no understanding of the liabilities he was incurring - just like the Telecoms were doing.

Ashcroft couldn't directly challenge the King - as a 4th Branch member, he would have been violating his oath of Blind Loyalty and Unquestioned Obedience - which could have been bad for his health.

So, he and Comey 'cooked-up' the transfer of power to Comey during the Gall Bladder Surgery (possibly scheduled to overlap the 45-day Certification Window) as a means of confronting Bush and Cheney over the Legal Rationale behind The Program - which No One outside the 4th Branch, and only a few within, has ever seen.

Bush and Cheney's over-riding Goal is to Never have to defend their rationale in Court. Courts are actually Kryptonite to BushCo.

So, I'm saying Comey and the Good Guys may have deduced - same process we use here - that Ashcroft was cleverly duped into signing every 45-days for the liability of a Program that he actually didn't understand much, if anything, about.

Comey could be looking un-ethical to US, mainly because he was kept 'out of the loop' by design. He did the best he could when he confronted Gonzo, Card, Cheney, Addington and Bush the night of the Hospital Visit, but somehow Bush turned him away - and that's when Bush put DoJ on Lockdown.

Comey looks bad to me for a long list of reasons, most of which have nothing to do with the surveillance progam RFW, but what I was trying to say was that even though I don't think he looks good, I think he's a) smart enough to know that the telecom statutes used an AG certification as a safe harbor, and b) ethical and practical and far sighted enough that he would not say in sworn testimony that there was no statutory basis he knows of for the 45 day certifications IF they were being used as the telecom safe harbor.

That's all though - just the response to that query of EW's. There could be OTHER AG certifications that were given, not in the form of the 45 day sign offs, but I tend to doubt it. And Comey could have been parsing and the 45 day sign offs were intended as AG certifications. Certainly, just because I'd like to believe that much better of him than that, doesn't mean my believing makes it so.


I'm still confused.

The telco lawyers, who are generally thought of as real smart cookies, get a phone call/visit from Fredo and his homies that goes something like this:

-Hello AT&T? We want to wiretap all foreign-to-foreign stuff running through your switches here in the US, and we also want to wiretap a whole bunch of foreign-to-US stuff running through your US switches. Stuff like phone calls, email, website access, the whole ball of wax.

-Hey, sounds great! I assume you have the FISA warrants from the FISC? Just drop 'em by and we'll get moving on the wiretaps.

-Ahmmmm...no...we got no FISA warrants, but look over there at this shiny thing. The Preznitwit and the Vice Preznitwit say its Ok.

-Ahmmmm...wait just a feckin' sec here Fredo. The FISA law is pretty feckin' clear. No warrant, no wiretap. Period! Folks who do wiretaps without warrants go straight to jail. That was the whole purpose of the feckin' law, right Fredo?

-Ahmmmm...it's for our National Security and I can promise you lot's of hugs and smooches.

-Ahmmmm...oh well in that case, Ok. I'm shore willing to go to jail for your hugs and smooches.


Now really I hope the learned folks here can better tell us just how some supposedly real smart cookies like telco lawyers could possibly ignore the blunt, in-your-face, black-and-white, means-nothing-else reading of FISA law and to somehow accept just hugs and smooches.

As all know, IANAL and it seems a real feckin' stretch to imagine any smart cookie telco lawyer could in good conscience weasel themselves around FISA without thinking he/she was playing Russian Roulette.

And perhaps it is as simple as that. Gambling that you won't go to jail with Big Brother in charge and backing your play.

But as Mary and others have pointed out, the DOJ/Admin/Congress you got today ain't necessarily the DOJ/Admin/Congress you got tomorrow.

Well, and no one seems to have discussed this much but warrants, or warrants as authorizations, issued by FISA with regular expiration dates could be a vehicle; as well as some other vehicle from FISA. And FISA could have discovered something or just gotten fed up and wanted something more that Comey et. al. thought was really a bridge to far for them to participate in further duplicity. I don't know and neither do more than a handful of people, none of whom are likely in our discussion group. I think that the discussion can get to micro-focused on the "hospital scenario". It is surely a critical piece of the puzzle, but the puzzle is a lot bigger than just that.

mad dogs - i don't think this was a lawyer to lawyer request. i think it was NSA to CEO.

I'd like to point out that the entire program started suddenly and in chaotic conditions. I wonder if the lawyers for telcos had enough time to document things under that kind of pressure.

Selise and massacio - No chance telco lawyers were excluded. This isn't the first time the telcos have been to the rodeo. Telcoms have been working hand in hand with the DOJ, NSA, CIA and other law enforcement and governmental agencies for decades on wiretapping, trapping and tracing, spiderweb analyses and other goodies. Granted this is bigger and badder than before, but it is still analogous enough that they are unlikely to have been totally duped or snowed.

it would only be embarrassing if i read it here, but

somewhere today i read a post that talked about the origins of FISA.

the idea i took away is that the penalties the congress built into FISA, to be levied against telecommunications companies, were neither accidental nor incidental, but purposive.

to whit, they were intended to insure that those companies strongly resisted federal government attempts to get around federal laws on "eavesdropping" - quaint term, isn't it.

non-lawyer i am, but these days any charlatan can hang up his shingle - so

1) penalties aside, if the FISA law was intended to insure that the telecoms did not cave-in readily to federal pressure - which i assume they must have done previous to the passing of the law (Nixon era?) -

then does it not follow that they (telecos) have an "affirmative duty" to actively resist gov't pressure to permit "eavesdropping"?

2) would it not be the case that if the telecoms and gov't officials colluded in bad faith to create sham safe harbors, both might be criminally liable for colluding with the gov't?

3) would it not be the case that govt officials who attempted to circumvent this intention of the congress and the president (at the time), would be liable for criminal and professional penalties?

is it the case that the senate is being asked to whitewash illegal actions by both corporations AND the white-house/doj?

The former Senior DOJ attorney in charge of FISA application and dealing with the FISA Court, James Baker, has testified that there was no problem with the FISA process it was a good and useful tool, it was never a hindrance to foreign-foreign collection and there was never any time problems in obtaining the warrants the time was in doing the investigative job properly. Pretty much point blanetedly said Bush and McConnell are liars and that EW, cboldt and bmaz were right.

http://www.tpmmuckraker.com/archives/004225.php

On the 45-day certifications, I'm with cboldt - those are likely not of a standard, rule of law based, statutory format that would support liability transfer or safe harbor.

Those Certs are probably documents that belong to the inner workings of the Kingdom. They are more like 'warrants' to the King that his orders were being faithfully carried-out - signature documents that certify compliance (that's 'legality' in the 4th Branch) with the wishes of the King, as opposed to certifying the 'legal' validity of The Program in Our quaint Prole Space.

I'm not saying, I'm just saying...

So, the question becomes whether a courtroom is a better investigative tool than congressional investigation and hearings.

Certainly either could be public or secret.

Certainly the courtroom is more controlled by law and procedure, but the investigative aspect of it would probably vary quite a lot from one case to the next.

Congressional investigations are obviously politically tained, but sometimes that smell of blood in the water can help.

Which is better for this case?

I still think any telcom which helps the government in a time of war is going to be punished less than the full extent of the law. But, if they did something they should pay. Where in between is to be determined in part by what they offer during an investigation.

selise said: "mad dogs - i don't think this was a lawyer to lawyer request. i think it was NSA to CEO."

Even if that were true (and quite possibly was), the telco lawyers would have been about 2 seconds behind in getting involved, and my scenario still results.

I've worked with the telcos for over 25 years. These are folks who have a bureaucracy second only to the Federal government. They got a written, in quadruplicate, policy and process for every single pen and pencil order, much less fulfilling a US Govt. massive wiretap request.

Stuff like this does not get done on the sly. Stuff like this always involves rafts of Executive VPs, Senior VPs, Junior VPs, Assistant VPs, and on and on and on.

The telco lawyers cannot and will not plead ignorance of the law. The question then is what the feck convinced them to ignore the law. Gotta be something they felt able to hide behind.

There be way, way too many telco cooks involved in this who know full well that FISA explicitly says this is a no-no, to not have some sort of US Govt.-provided cover.

Now that "US Govt.-provided cover" may be as legally flimsy as the paper it's written on, but the telcos got the paper.

Notwithstanding IANAL, I be one of those types who sits on jurys. And let me tell you, I wouldn't hesitate to send telco CEOs, telco lawyers and the telco janitor to jail even with their "US Govt.-provided cover".

I'd even be interested in throwing away the key on the telco's defense attorneys who tried to sell the joke that a paper/promise/kiss provided by Junya, Deadeye and Fredo somehow trumps 30 year old law of the feckin' land FISA statutes.

I know that some legal types enjoy and are masters at the splitting of hairs, but I've got to say from a juror's perspective, this critter is bald.

The President can always commute any sentences, no?

Mad Dogs - I think, reducing down what I had above, that there was likely an argument the telecoms could make that they were not really involved in the interceptions, bc as Mark Klein seemed to indicate, the NSA built and staffed its own rooms and from that point forward probably proceeded without a lot of direct involvement by the telecoms.

http://www.wired.com/science/discoveries/news/2006/04/70621

So I'm sure a part of their argument would be that they did not participate in the intercepts - NSA had their own room and equipment and acted on their own in deciding who what when where why and how etc.

So as an example, if this were their argument, they could say step one: "our people" and "our equipment" were not involved in intercepts. NSA does what it does and nothing under the act says the government can't have its own telecom processing rooms. Step two: Gov and the DOJ via OLC gave us an opinion that we were not violating 18 USC 2511 - see, pretty. So we weren't doing anything specifically referenced in the act and anyway, OLC gave us an opinion that we were good children.

BTW- in looking around a bit, I have to wonder how the Councilman case may play into all of this. Back in 2004, the First Circuit ruled that an email provider does not violate federal wiretap laws when it opens emails to its customers and uses them for its own competitive business purposes. But in mid 2005, the en banc circuit overruled and determine that accessing e-mail in temporary storage violates the federal wiretap act.

I'm also still leaning towards thinking the adverse FISA court ruling that sent everyone spinning was an email ruling.

Mary said: Mad Dogs - I think, reducing down what I had above, that there was likely an argument the telecoms could make that they were not really involved in the interceptions, bc as Mark Klein seemed to indicate, the NSA built and staffed its own rooms and from that point forward probably proceeded without a lot of direct involvement by the telecoms.

Part of this is probably true from what I've read via EFF's reporting (I'm a techie, so I eat some of this stuff up *g*) of the stuff that went on in one of Pac Bell's San Francisco switch locations.

However, and this kinda nullifies your central point, the telcos have very high and strict premises security, and the notion that the US Govt. could just waltz in with a bunch of comm monitoring equipment and cabling is not viable.

The telco would, at some level of the organization, to have had explicit involvement in discussing the engineering requirements with NSA techies (or contractors as is much the case these days, and perhaps even former telco techies now working as contractors) since the telco's lifeblood was having a "needle" shoved into its arm so to speak.

And additionally, there would have had to be "authorizing" conversations between the telco and the government before the engineering discussions ever occurred.

Again, the telco could not plead ignorance.

While I did enjoy your analogy of the "diary", I'm not sure it would pass the credibilty test in front of a jury.

But of course, we ain't nowhere near a jury and perhaps never to be so if as reported the Dem Congressional Aides are correct.

I would make one final point. Knowing the telcos, and knowing something about my own species (no, not Mad Dogs LOL!), I think that it is a very strong probability that the telcos did indeed get some sort of US Govt.-supplied paper as a shield to their obvious breaking of the law.

I simply cannot fathom how any telco employee (CEO, lawyer, techie) could risk their own personal freedom without such a thing. Any thought otherwise, doesn't seem tenable.

melior said: "The President can always commute any sentences, no?"

Meant to reply to this earlier. IANAL, but to my thinking the answer is both yes and no. *g*

The Preznitwit can't pardon himself.

The Preznitwit can pardon everybody else.

The Preznitwit can commute sentences for everybody else.

UNLESS

And here is where I believe it gets judicially tricky (and the lawyers will correct me if I'm wrong. *g*):

If the illegal stuff done was done by the Preznitwit himself, one might successfully argue that a Preznitwit pardon or commutation of sentence for his co-conspirators/bad actors would be in and of itself an obstruction of justice.

bmaz and mad dog - i meant only the initial request was probably NSA to CEO and not AG to telco lawyer. i'm sure the lawyers were all involved.. but it could make a difference if the first they hear of it is from their own CEO asking them to find a way to make it work.

I wonder who the congressional aides might be. I'd probably give them a ring to discuss this.

I know I'm coming to this discussion late, but I think the answer to this riddle may be that the Telcos aren't worried about liability under FISA, but rather under some other statute (such as the Communications Act, Stored Communications Act, etc.). They probably had an AG authorization for the actual interception of communications, but they may have been relying on some sort of consent theory or strained reading of the law in handing over phone records. Remember that the whole Qwest story was about phone records, not wiretaps. I think there are several aspects of this program that required Telco cooperation and they may have their greatest exposure with respect to activities that have nothing to do with FISA. FISA reform may just be a pretext for granting broad-based immunity.

A.L. - you raise a very good point. We don't know what the telco immunity is for.

I would make one point regarding the "call records" stuff:

I've been a computer/network techie for almost 30 years. The computer field has as many, if not more, highly technical, and brainpower-demanding specialties as the field of medicine does.

Though I really have only a passing knowledge of database stuff, it is far, far more than the average non-techie.

My point is that for folks like AT&T to just turn over their "call records" database to the NSA, doesn't buy the NSA very much.

The reason is because the critical stuff is all the "viewing" software algorithms that AT&T has laboriously developed to squoze all that meaningless data into something that provides "meaning". It might be calling patterns based on locations, time of day, etc.

The effort to design, develop, test and put into production this "viewing" software is likely to have taken many, many person-years of effort.

If all that NSA got was the underlying data from AT&T, it would be years and years before the NSA had built their own "viewing" software.

My "swag" is that either:

1. AT&T (as well as the other criminal telcos involved) didn't "hand" over stuff, but instead were in effect contracted to perform the searches that the NSA wanted (i.e. find me all the folks who called, emailed or visited "suspicious" Islamic websites from Pakistan, and then break them down by Pakistani city and region, and then further by individual identifiers such as phone number, email address or IP address).

Or

2. AT&T (as well as the other criminal telcos involved) handed over to the NSA, not just the data, but all the existing telco "viewing" software so that the NSA would not have to develop it itself and could hit the ground semi-stumbling rather than crawling.

There is less likelihood that number 2 was done because actually "using" the "viewing" software is an art all by itself. Folks who know how to construct good, effective multi-level/multi-dimensional queries are hard to come by.

Folks who do this and understand a telco's particular "viewing" software (which tends to be proprietarily developed by each telco), tend to work at the telcos and not at NSA.

And this whole issue then jumps into another dimension:

The NSA didn't/doesn't itself do the "spying", but it's contracted out to private companies.

Does that mean FISA no longer applies? And that some other US anti-snooping law does?

Or does a private company contracted to do stuff for the NSA retain the very same liability as the NSA wrt FISA?

I know I am a broken record here, but trying to form a hypothesis on some interplay of the Qwest bit with all the others is not sound. While the Qwest set of facts is certainly valuable and interesting, it should be considered mostly as a stand alone. Qwest is an outlier to what we are trying to reason through for a number of reasons.

A.L. - The telcos are worried about liability from anything and everything. The telcos would be tickled pink not to have to have to deal with the litigation and embarrassment, in spite of the fact that they would come through it ok. But the telcos didn't just cover themselves under FISA and then fall off the turnip truck on other exposure; you have got to be kidding me. And FISA is indeed a pretext for granting broad based immunity; immunity that will save the telcos a lot of hassle and bad press (but not that is of ultimate danger to them); but more importantly immunity to cloak and shut down inquiry into the real malfeasants in the Bush Administration, where lies culpability and liability beyond the pale. So sure, the telcos have a vested interest in obtaining immunity (who doesn't; immunity is not just a get out of jail free card, it is a don't even go to court card); but the critical point is that they are not in danger of going under or whatever tragedy is being sold as the compelling basis. In spite of the fact that telcos have something to gain; the push is not about them, it is about cover for BushCo. What, is this one of those Condi Rice "Who could have predicted" moments; how could anybody have foreseen trouble ahead for the telcos? If the Bushies were concerned that the telcos needed statutory immunity, why are they seeking it only now? Bipartisan groups of congressional leaders approached the Whit House about crafting all kinds of things; literally offering to help. They were turned away with a sneer and Cheney/Bush stating "We've got what we need". Concern about telco liability from the Administration is nothing but a giant ruse; they don't give a tinker's damn about the telcos or anybody else, they are serving themselves.

Mad Dogs - As to your last sentence; Yes.

Oh, and Mad Dogs at 21:35: what you describe actually tracks what Kurt Opsahl and the EFF lawyers, as well as their ATT witness/affiant Mark Klein have alleged.

bmaz said "Mad Dogs - As to your last sentence; Yes."

Oooh-boy! That's very interesting. Since I've worked with the telcos for so long, I've often wondered what their liability is for doing stuff like a wee bit of ad hoc wiretapping.

As sharp as some of the telcos techies are, and with all the opportunity in the world, I've imagined that there is little chance of being caught by either internal controls or external law enforcement.

Kinda like: "Quis custodiet ipsos custodes?" Or roughly translated: "Who guards the guardians?"

Employed as a computer geek, I know first hand how to monitor individual computer connections in a corporation. We do it all the time. All the network connections are cables that are plugged into a patch panel. Each patch panel connection has a corresponding "monitor" port. You'd never know we were there.

Working for a telco, who'd know?

Mad Dogs - When I say that what I mean is that they effectively ARE the NSA. They are acting as the express agent of the government under your question assuming they have, as we have been discussing all day, plausible conduct and cover.


This country very badly needs another Daniel Ellsberg or three. There's got to be people who have the info to blow this sky high.

This thing could turn on a single dropped dime, and I'll bet there's a lot of change jangling out there.

Imagine if a document shows-up with Miers advising Gonzo, Monica and Rove that Bush wants 'that pest' Fitz on The List?

What if the Hospital Visit/Crisis was precipitated by the discovery of no-warrant domestic surveillance 'targets' like all Politicians (Dem and Rep), the Media, Rich People, DFHs, etc?

Proof the '04 election was stolen in Ohio?

Pictures of Bush partying with Abramoff? Gannon? a secret Marianas stop-over?

Someone from the 'inside' comes forward and can show that they took a 'Loyalty to King Bush Oath' as part of getting their Government job?

Could be any of a thousand things from any number of sources...let's hope they come forward soon.

wow! Another great discussion. Thanks everyone.

Bmaz,

We discussed QUEST in previous posts. But I have more questions for you (and I hope they make sense).

I understand your point about not involving QUEST in the bigger picture/question at hand. However, the one point I probe in regards to QUEST is, what industry standard is used by telecoms wrt the involvment of their lawyers? Does QWEST show the industry standard import and praxis of the corporate legal representation on telecom-government interplay? Would it not be "standard" practice , no matter what the bigger question for BUSHCO immunity is, that telecom lawyers were required to- for the corporation's sake and their customers' - weigh in on any privacy issue presented to them by the government? Does the QWEST history make that point? Thus, pointing a finger at foundational telecom praxis and the "bigger picture question" in terms of the other telecoms and the reality of acting in "bad faith"?

I take the Qwest "standout" as a sign that at least, the question of cooperation isn't a slam dunk in favor of the government, and that, at least in theory, it's possible for a communications carrier to hold the government to its public law. Different lawyers, same offer, different reaction. AT&T and Verizon were willing to act according to non-public law, secret EO's backed with promises to keep the secret and pay for defense and any damages.

And in that same vein, it also shows that other communications carriers are willing to operate outside of public law, and as I alluded to yesterday, may even, as far as privacy concerns go (privacy as against the government - not as against others), communications carriers may essentially be "nationalized," or a de facto arm of the government.

Newsflash - the government spies on its subjects. Always has, always will. It facilitates the establishment of conformity.

KLynn - Both my belief and experience is that telcoms don't breathe without the involvement of their counsel, whether it is Qwest, ATT or anybody else. As far as a I can tell, Qwest just ended up in a different posture than pretty much all the other telcos because of the corporate issues that were roiling in the company independent of their issues on wiretapping. They always have their lawyers involved; this would be especially so in relation to privacy/snooping issues. As several above, including me, privacy/snooping issues were not exactly something new for them to be encountering.

Bmaz,

I understand the privacy issues are not new. I guess the question is now, if the telecoms and the government are coming down on the same side from legal perspectives on privacy for the sake of national security and both the government and telecoms need immunity, then neither the right to privacy for individuals of our country nor the right to privacy as consumers of a service which requires regulatory measures in regards to privacy, are no longer in a tension/balance that protects the right to privacy? So how do we the people get assurance of even an image of privacy when enterinng a telecom contract?

cbolt. Get that news flash. Unfortunately, at least there was some appearance of the laws and regulatory issues being held in a tension to protect the citizens rights in the past. Granted appearance only. Now?

Mad Dogs (I had a Black lab with the singular version of that name):
However, and this kinda nullifies your central point
I'm not sure, but I think from reading your post you interpreted what I was putting up as what I thought might be a "winner" for the telecoms, but that isn't what I meant.

I was trying to say that as the telecom lawyers got involved, they would first want some kind of argument (even an inane one) that the statute (such as 18 USC 2511) didn't apply and I was giving that as an example of some way they might get to that point. I'm non-techie, but if, as you seem to indicate:

Part of this is probably true from what I've read via EFF's reporting

then I'm thinking that may well be a path they went down. I absolutely agree it doesn't begin to pass the smell test! I'm just trying to spec on the kinds of defenses they may have structured; I don't buy any of it - they are guilty as snot.

They would absolutely have had to have knowledge of what was going on, but the statutes aren't really worded well to make having knowlege that Gov is breaking the law (without their per capture/intercept/access assistance) a violation - I don't think any of the statutes contemplated such a massive, rogue operation as the Executive Branch criminally co-opting the NSA and highest levels of DOJ to split off everything into a master carrier that could scoop up at will and without legislative or judicial approval.

But it does help them with an argument on the statutory damages "per eavesdrop" or "per access" (for stored emails) issue - because they aren't involved after the station was set up, if I understand correctly. (Although I do wonder how the stored email part might work.) Do I buy those arguments? Nah. But once they had something that could at least be structured, even without much credibility, they then get a corrupted Office of Legal Counsel in the Dept fka Justice to issue a classified opinion that all the eavesdropping is being done by the govt, not the telecoms, according to the DOJ'S interpretation of the statute. So DOJ is saying, "hey, we're the ones breaking the law, not you, oh, and sovereign immunity - nanner nanner to the American peons who aren't part of OUR crime family."

Ok, the actual OLC opinion might use a little different language than that, but getting an OLC opinion that they - the telecoms - aren't doing the intercepting/accessing and therefore aren't violating the statute, they (telecoms) would posit, buys them out of EVER having to face criminal liability. And Gov is admitting that it is the party at fault (but may have immunity) for civil damages if they are ever an issue.

The history of OLC has been that it acts as the final word in DOJ and successor administrations have typically treated OLC decisions as binding. If that tradition survives, it will be a travesty. The whole office - even in Goldsmith's hands - has been nothing more than a repository for loyal Bushies, who pen his desires.

While I did enjoy your analogy of the "diary", I'm not sure it would pass the credibilty test in front of a jury.

I sure hope it wouldn't - it's kind of a Phil Spector, "I just went and got the gun, put the bullets in, maybe put it in her mouth, but hey - SHE KILLED HERSELF" type argument.

To top things off, I'm guessing that the telecoms never really thought about some of the states with less co-opted prosecutors coming after them. I think fondly of New Jersey on that front. *g*

So the layering of defenses might, for example, be an argument that the statute doesn't apply to what they did bc they weren't the ones doing the intercepting (with an OLC backup and maybe admission that interception decisions would be all gov without telecom involvement); an argument that even if the statute does apply to what they did, what they did wasn't wrongful bc even though it wasn't under a safe harbor, it was done in cooperation with the Unilateral (not unitary) Executive in a time of war (with an OLC backup); an indemnity agreement from co-conspirators in gov; and stamps of classification everywhere on everything.

All that is spec, but I'm sure if and when things ever see sunlight, there will be layered defenses. Not that any of them are all that good, but layers. I think the "massive liability" concept probably stems from the 'what if' ever single item run through the NSA's special room was deemed (and it should be imo) an "intercept" and/or if that room allowed them to access stored emails as well, if each all of those emails made available were accesses. That would start to get pretty daggone massive, even if NSA would continue to try to claim (with a straight face) that after everything was routed to it, it only peaked and probed through SOME of it.

This goes to what cboldt has said above, " communications carriers may essentially be "nationalized," or a de facto arm of the government" I think that may be it exactly and that may be what Congress is about to bless, retroactively. Not that any of them will bother to actually find out what they are blessing or how it can be misused and abused - - bc, of course, IF THE PRESIDENT (or major corporate campaign contributor) DOES IT, it's not a misuse or abuse, is it?

A.L., I haven't really thought that they were mostly worried about liability under FISA and I've thought most of the discussion here was about violations like 2511, 2701 etc. It's just that one of the safe harbors for the tapping was an AG certification that no warrant was required under FISA and that is the pathway for them to claim that they might think a warrant was not required - about the only one I can think of. You are right, though, about a lot of reference being to banked information and some lame telecom references to customer waiver language in their agreements.

I do think that emails are a big part of the whole equation. EW has had some really interesting posts on possible metadata uses and other aspects and they have to have access to all of that first.

But Mad Dogs - back to your point, while I think that normally #1 of your possibilities might be the more likely scenario, I do think the possible criminal violations shift over to making #2 more viable (and hey, no one ever tracked down all of that missing Iraqi 9 billion, so there could have been some off the books walking around money for a deal *g*) IIRC, Klein mentioned some internal advertising for inhouse people to take a classified job working for NSA and seemed to indicate that some in house people ended up switching over and working in the private rooms. But I'd have to go back and re-read.

Thanks for the tech stuff Mad.

oh dear

it was here.

thanks Mark Levey

for the historical context.

which, sooner or later, would be considered if this matter were ever litigated up to the supreme court.

Mary at September 20, 2007 at 11:54:

I do find your "layered defense" theory tenable. Surely an attorney recognizing a probable poor outcome for a client would make the best of that poor situation by constructing as many impediments to the opposition's case as possible, even if the endgame was still likely to be defeat.

One could still hope that your opponent might get hopelessly entangled in one of the many roadblocks and self-destruct.

Or as one might say in football (and many other sports): "If you ain't got any offense, you best be playing a real mean defense."

AL

This is probably EPU land. But having read the Wainstein testimony, I think you may be right--it's another statute, or practice. As I'm sure you saw, they want to change the language surrounding pen data arguing, "well, the standard is so much lower than for wiretapping, it should be no problem." Which suggests it may be the call data that gets the telecoms in trouble (and that is the basis of most of the active lawsuits, save the CCR one).

Also, I note that they are adding more legal ability for the telecoms to refuse to cooperate. There must be a reason why they're including that in...

"There must be a reason why they're including that in..." Yeah, and again, it sure ain't out of their abiding concern for the telcos. They have devised a way that such a refusal now makes it easier for them to get a warrant or something. It benefits the Administration somehow, some way......

The award for all of this is 'net neutrality' ending. It's a reward and a tool. By giving the primary telcos control of the internet in order to provide a 2-tiered system, it means...they control all the internet traffic. They become the gatekeepers for this ongoing program, they can easily censor any content that's inappropriate and make a boatload of money by determining the prices needed to 'prioritize' internet traffic and they effectively kill competitive threats from innovation. That they also kill our economy among other losses is secondary.

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