The Government Sez: We Don’t Have a Database of All Your Communication

I’m going to try to do a series of posts on the FISA Appeals Court ruling before football starts tomorrow. In this post, I just want to point to a passage that deserves more scrutiny:

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(26)

To translate, if the government collects information from a US citizen (here or abroad), a legal permanent US resident, a predominantly US organization, or a US corporation in the course of collecting information on someone it is specifically targeting, it it claims it does not keep that in a database (I’ll come back and parse this in a second). In other words, if the government has a tap on your local falafel joint because suspected terrorists live off their falafels, and you happen to call in a take out order, it does not that have in a database.

There are reasons to doubt this claim. First of all, because we know of huge new data storage facilities, and they’ve got to be filling those facilities with something. Of course, they might just store US person communications on servers, but not in a formal database, and thereby be able to claim they’ve not got your falafel order in a database proper.

But we also know that when Russ Feingold proposed several measures to protect this kind of incidental data during last year’s FISA debate, Mike McConnell and Michael Mukasey started issuing veto threats. For example, when Feingold proposed adding this amendment to the new FISA changes,

At such time as the Government can reasonably determine that a communication acquired under this title (including a communication acquired under subsection (a)(2)) is to or from a person reasonably believed to be located in the United States, such communication shall be segregated or specifically designated and no person shall access such a communication, except in accordance with title I or this section.

Mukasey and McConnell threw out a bunch of vague alarmist objections.

The Mukasey-McConnell attack on segregation is most telling. They complain that the amendment makes a distinction between different kinds of foreign intelligence (one exception to the segregation requirement in the amendment is for “concerns international terrorist activities directed against the United States, or activities in preparation therefor”), even while they claim it would “diminish our ability swiftly to monitor a communication from a foreign terrorist overseas to a person in the United States.” In other words, the complain that one of the only exceptions is for communications relating terrorism, but then say this will prevent them from getting communications pertaining to terrorism.

Then it launches into a tirade that lacks any specifics:

It would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable.

As Feingold already pointed out, the government has segregated the information they collected under PAA–they’re already doing this. But to justify keeping US person information lumped in with foreign person information, they offer no affirmative reason to do so, but only say it’s too difficult and so they refuse to do it.

They made similar objections when Feingold attempted to prohibit reverse targeting and prevent the use of improperly collected information. All of these objections indicate that they cannot–or refuse to–add protections for this incidental information.

Which frankly leaves me wondering whether the government isn’t massively parsing that claim.

The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons,

Did the court ask only about a database consisting entirely of incidentally collected information? Did they ask whether the government keeps incidentally collected information in its existing databases (that is, it doesn’t have a database devoted solely to incidental data, but neither does it pull the incidental data out of its existing database)? Or, as bmaz reminds me below but that I originally omitted, is the government having one or more contractors maintain such a database? Or is the government, rather, using an expansive definition of targeting, suggesting that anyone who buys falafels from the same place that suspected terrorist does then, in turn, becomes targeted?

McConnell and Mukasey’s objections to Feingold’s amendments make sense only in a situation in which all this information gets dumped into a database that is exposed to data mining. So it’s hard to resolve their objections with this claim–as described by the FISA Appeals Court. Unless, of course, they’re parsing wildly with the Court to get a favorable ruling.

  1. damagedone says:

    Data mining and probably ‘text mining’ programs too if they are looking for key words on databased phonecalls. Have to wonder, how many of these folks they suspect would be dumb enough to call in orders, anyway?

  2. bmaz says:

    Also doesn’t rule out an affiliated contractor, say for instance ManTech or someone like that, from maintaining the database.

  3. MartyDidier says:

    They may be correct however, you can be assured that the CRIMINAL ELEMENT within the Government DOES. If you aren’t aware of who this criminal element is by now, I’ll start saying a prayer for you. Start with reading about Sibel Edmonds. Then add the Nuclear black market area and huge Drug distribution area for starters. Then you’ll never guess who in the upper Federal Area is directly involved in these criminal ventures and it goes all the way down into the States and local areas as well. How I know may surprise you as I was in a family for more than 26 years who are directly involved. So guess who is bring in the Cocaine and making it available to our children?

    Now realize that you can’t run a National sized Drug & Crmiinal system without monitoring who your threats to bring you down are. Since my divorce started in 1997, I have been wiretapped none stop. I have a collection of hard drives from my office systems that are contaminated by “data collection software” embedded in Windows for the purpose of gathering and sending all generated data to IP addresses for their review. No commercially avilable maintenance software would work to remove this criminal element. When it came time, I used “Hacking tools” to identity what it was and who the IP addresses were. Guess who they belonged to? A composite of Huge Corporations! Each area, email and letters and other data had their own IP address. This is because I’ve known about a White House Coup and many murders associated with a Political Mafia.

    Marty Didier
    Northbrook, IL

  4. Mary says:

    EW – I can very quickly answer some of your questions at the end of the post, but I want to make this observation before even going there.

    The Government has NOT certified to the court (and is not required to ever certify to any court, under the PAA) that it is not keeping a data base of “incidentally collected” information (and I think the bigger issue may end up being emails than phone communications).

    What gov has done is to have lawyers (who may not have any idea about procedures and technical issues and matters) “assure” the court that IN THE SPECIFIC CASE BEFORE THE COURT WHERE THE TELECOM HAS PITCHED A FIT that gov is not, under THOSE SPECIFIC DIRECTIVES going to keep a database.

    This “assurance” is being given to a court which is, within its ruling, saying it doesn’t have a right to ask for that assurance from gov, much less for a formal, under oath, certifiation from operators of the program vs. lawyers.

    So having ruled that it isn’t entitled to oversee or ask for information, the court then says, but hey, gov says they aren’t keeping database.

    The other aspect, and more important question, is has Gov certified that is actively and affirmatively purging and destroying information incidentally collected? Or just that they don’t have a formalized database for all the info they are storing?

    But as to your questions at the end:

    Did the court ask only about a database consisting entirely of incidentally collected information?

    The court didn’t ask about any of it and didn’t require or take evidence on any of it. Being a fake “court of appeals” it wouldn’t take evidence, but even at the “lower fake court” level, the PAA doesn’t allow the court that kind of inquiry. What they have is what Gov gratuitously offered up in briefs or oral argument.

    Did they ask whether the government keeps incidentally collected information in its existing databases (that is, it doesn’t have a database devoted solely to incidental data, but neither does it pull the incidental data out of its existing database)?

    See above.

    Or is the government, rather, using an expansive definition of targeting, suggesting that anyone who buys falafels from the same place that suspected terrorist does then, in turn, becomes targeted?

    See above.

    This is the bizarre part of the “trust the gov” aspect of it all. It is in particular bizarre that the court, after rulling that it has no place in the process of the AG run program, then goes on to — Order that gov advise the telecom (which has no duty to spend thousands and thousands in going to a FISCt that says it has no jurisdiction over the AG’s program) if gov starts doing the mysterious “problem thingy” that the telecom raised at oral argument and that the court has to admit is probably a secret, mysterious 4th Amendment problem thingy.

    It’s like the earlier In Re Sealed Case opinion – like reading someone who is overly medicated and knows what they want to be the answer, but with no logical route to that answer, just hop and jump from hither to thither.

    Seriously – how does a court rule the program is valid and legal but there is this problem that might be a real big problem, so the court is going to rule that a telecom has to be kept up to date on that problem in order to provide 4th amendment oversight?


    When did a telecom become a new branch of govt with secret tsk tsk powers over 4th amendment violations by the AG, but no remedial powers?

    Malice in Wonderland.

    The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment.(

    • emptywheel says:

      has Gov certified that is actively and affirmatively purging and destroying information incidentally collected? Or just that they don’t have a formalized database for all the info they are storing?

      Absolutely agree that that’s the problem, though that’s not what we get.

      I’m as interested in this passage as anything else, though, bc with some publicity we might be able to make the govt uncomfortable about making this claim.

      In any case, I am close to ready to guarantee that this is an email provider, not a phone customer. I just stick with my old falafel thing bc–after I used it a couple of times–we got proof the FBI was, in fact, targeting falafel customers.

      That, and I live in MI, where a significant portion of the population eats a lot of falafels.

    • Leen says:

      “and there is no evidence to the contrary” Lack of access to that “evidence” seems like a problem when those with oversight responsibilities are unable to access the whole program.

      Came to D.C. last Wednesday. First day at the Brookings Institute for the Gaza Middle East panel discussion. Will share at a more appropriate time.

      Thursday went to the Eric Holder hearing, all day. Feingold brought the wiretapping issue up several times. My money is on Feingold for asking the most penetrating and on target questions. The hearing was well worth it up close. Really like to think I am interpreting body language correctly. Spector sure got pissy with Leahy.

      Made a spontaneous sign during the Holder hearing.(ended up sitting next to the Code Pinkers). Had a great conversation with Colonel Ann Wright, she is a no nonsense woman who really put her own career and ass on the line. Have the deepest respect for her.

      I believe it was Bmaz who stated “Bush and Cheney deserve fair trials” The sign that I made was on the full screen of C-Span for several seconds.

    • sunshine says:

      The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary.

      Is it possible that the info collected is saved on those GOP pc’s that the Ohio votes went through with the help of Connell?

      Also, It sounds like BUsh is having trouble getting donations for his library during this Bush adm depression so he may have went begging to foreigners?

      For weeks now, the White House has had a consistent message about Texas politico Stephen Payne: We don’t know him that well. He doesn’t really work for us. And we certainly didn’t tell him to do what he did — offer foreign governments access to the White House in return for contributions to President Bush’s presidential library.

      But Stephen Payne has a long relationship with George W. Bush, dating back even before Bush’s tenure as Texas governor, going back to when the future president was managing general partner of the Texas Rangers baseball team, according to documents obtained by Texas Watchdog.…..s-to-bush/

  5. plunger says:

    We all need to keep in mind that AT&T effectively went out of business. The logo was revived by a telecom company in Texas that elected to rebrand itself as AT&T. It was in this same time frame that warantless wiretapping commenced.

    The new AT&T sure appears to be a government enterprise. They are just getting around to nationalizing everything else, but it appears they selected telecom early on to enable the remainder of their plan.

    Anyone who doesn’t believe that blackmail is the number one enemy of freedom isn’t connecting all the dots.

    Recalling the name of Poindexter in this thread is right on target…Total Information Awareness was renamed.

    Your government is out of control.

  6. dakine01 says:

    The logo was revived by a telecom company in Texas that elected to rebrand itself as AT&T

    Actually, the logo for AT&T has been around all along. The “telecom company in Texas” was one of the former regional/”Baby Bells” from the divestiture in 1984 where the old AT&T was broken up. They bought out their former parent and adopted the name AT&T instead of their old SBC (Southwestern Bell Corp).

    • PJEvans says:

      After they bought at least one other ‘baby Bell’ (Pacific Bell, which was still entitled to use ‘Bell’ ni their name).

  7. pdaly says:

    I came across this Boston Globe article with a curious title “Spy Agency Destroys Data, Angering Others In Probe” by John Donnelly, Globe staff.

    The article claims that NSA lawyers are instructing the agency to destroy data collected on Americans or US companies collected since the 9/11 attacks over the protestations of law enforcement and CIA.

    The timing of the article is curious, too. It was published 10/27, 2001, which is 4 days after the Yoo OLC memo dated 10/23/01.

    US Rep Charles Bass (R-NH) is quoted

    “I think it could be the biggest information problem that we face. If somebody is abroad and they even mention the name of an American citizen, bang, off goes the tap, and no more information is collected.”

    [an aside by me: Is that a true description of the NSA capability in 2001? That implies all Americans’ names were preentered into NSA’s computer so that the name can trigger such a fast reaction. Thanks for the info, Mr. Bass.]

    Bass continues:

    “For four years, I listened to stories of intelligence failures, and it wasn’t due to incompetence of anyone in the system, bu that the system is so arcane.”

    [me again: I’ll bet Bass has a private enterprise solution for anything governmental, especially an arcane governmental system)]

    I love the quote of the anonymous US intelligence official, because what he or she had to say was so “controversial”:

    “The NSA has good and longstanding reasons to destroy information collected domestically. If they do anything short of destroying the information, that smacks of domestic spying, and we have been through that before and don’t want to do it again.”

    • pdaly says:

      and the CIA and law enforcement were protesting the destruction of (not the collection and retention of) the data.

    • plunger says:

      The Poindexter, Rumsfeld, Scowcroft, Cheney, GHW Bush, Oliver North crowd didn’t want to let go of its goals to gain total information awareness, and they didn’t want to get caught again either.

      All things considered, it’s pretty easy to see why these co-conspirators aligned with the PNAC faction and outsourced the entire data-capture and retention operation to Israel. Every new surveillance contract and nuclear security contract was outsourced to Israeli firms (Mossad). They knew damn well there’d be zero Congressional oversight – and even less investigation whenever they get caught. The AIPAC spay trial will never be conducted.…..01554.html

        • bigbrother says:

          thanks for the links. Listening now.

          So are they…and Mossad thinks they own us. Fuck them when will BO wake up to these facts? His mouth peice is an Ireali citizens.

  8. mikenportc says:

    ..”from non-targeted United States persons…”

    That’s another weasel-word out . If something is questioned, they just claim it’s a targeted person.Then….

    Judge/lawyer/reporter :(skeptically)” Why was that person targeted?”

    Govt. Scheister: ” We can’t tell you. It’s super-duper secret.”

    ps: Marty D. I suspect that the Edmonds situation was a sting operation gone bad, the same or similar to what James Risen wrote about in his book. Edmonds’ unit probably wasn’t told the truth about what they were doing. Just guessing.

  9. Mary says:

    9 – I liked the falafel example. I’ve listened to Wainstein making the case about emails and that’s where they can make their most sympathetic case, so they use it to justify broad language that allows for anything.

    Wainstein in making their case says, hey, look, when it comes to emails, it’s hard to tell by looking whether the recipient is a US person or is in the US when they are picking up emails.

    So what are we supposed to do if, oh, say we come upon a terrorist’s laptop that has all kinds of emails and email addresses. We need to have unbridled capacity to rifle through emails at will and without warrant, bc you just never know when you find that laptop and need to start following things quickly.

    As someone who has dealt with a lot of bridles and a few bridleless situations, let me just say tht unbridled is usually a precursor to disaster, whereas a bridle that ain’t working the way you want it to has an almost endless assortment of bits, bit combinations, metal and other materials bit options, noseband, noseband options, bitless hackmore, etc. to meet your needs, in various shapes and sizes.

    • emptywheel says:

      Well, not to mention, it’s one thing to look through the emails on Abu Zubaydah’s laptop.

      It’s another thing to go to Microsoft and ask them to wade through all their Hotmail servers.

      I don’t think the company in the complaint is MS, but it’s someone in that general vicinity.

      • plunger says:

        Recall the Bill Gates nuts were once in a vise with the Federal Government – as they threatened to break it up.

        Things got real quiet for a long time, and then, Mr. Gates and Mr. Government started getting along just fine.

        Compare the time frame to when maximum pressure was being put on Gates by the government, and keep in mind what the conspirator’s ultimate goal was. They didn’t give a damn about anti-trust, that’s for sure.

        • emptywheel says:

          That–and the fact that one of the twin data centers in Texas–is proof taht this suit is NOT Gates.

          He’s been cooperating happily, but some of his fellow email providers have not been.

  10. Mary says:

    Not appropos to much, but does it really take anything other than a foreign person (not the old true foreign power or agent of foreign power) contact to justify becoming a target for “intelligence” purposes now? I’ve forgotten what all changed, but I vaguely recall either that the foreign powers and agent of foreign powers language changed or that the arguments being made for changing the statutes all revolved around “foreign” contacts insulated from any limitation that those be foreign powers or their agents.

    And there was no real “nail down” on the terrorist issue IIRC. So I think if you talk to someone (a US citizen or otherwise) overseas who has given money to PETA, they might be deemed a terrorist, justifying having you become a target as someone in contact with an “agent of a foreign power” which now includes any “terrorist” without that “terrorist” having a true foreign power association vs. a non-state ideological affiliation.

    • emptywheel says:

      The rules are significantly different between PAA and the revised FISA.

      That said, one thing that’s clear about this ruling (which I’m working on a post on) is that they were using a hybrid justification–the FISA for overseas and 12333 for domestic and law enforcement.

      And not showing the telecom teh 12333 stuff, which falls into the point you were making.

      But when you use that hybrid justification, you’ve got some room to play.

      • LabDancer says:

        I got a work order here for blue sludge with streaks of orange in it.

        Yup – you came to the right place: we get our share of orange-streaked blue sludge. Where do you want us to dump it?

        Oh, don’t trouble yourself; just please go ahead and dump your whole load. We know what we’re looking for.

        Unh; we got red sludge – green sludge – yellow sludge – sludge with streaks in it- of all colors – spotted sludge – multicolored sludge with polka-dotted streaks – swirls … plus a lot of this isn’t sludge, it’s slop, with a good of muck, & lord knows what all – we don’t even know what all we got – – & as to blue sludge with orange streaks, that’s a pretty small percentage of this, and your work order is clear: that’s what you’re to get.

        Look friend: when I said “don’t trouble yourself”, I was trying to make a point nicely; and when I said “please”, that was a euphemism. Capiche?

        Geez, mister, that don’t sound right, and it sure don’t fit this work order; I’m gonna have to see some higher authority than your say-so.

        * *

        Years ago, in the day when everything was rotary dial voice machines on an exchange, when the government came up with an order to permit interception of electronically-conveyed vocal intercourse, the telco security guy would just have to patch into anyplace along the loop which was made when any call was started or picked up at the target number line, and automatically it picked up everything in and out of that line and at the same time by definition it omitted picking up anything that wasn’t either incoming to or outcoming from that line. That system allowed the telco & its security workers to preserve their dignity as contractual protectors of their customers’ privacy on the one hand & responsible citizens aiding the legitimate efforts of law enforcement to go after bad guys on the other.

        Someone looking back wistfully at those now sepia-tinged days would be more than a little ticked at the idea of just dumping their entire load into a giant maw controlled by the government: not a lot of room for garbage truck drivers going into a landfill to fancy themselves trustees of their customers’ privacy.

    • pdaly says:

      and how about all the telemarketer cold calls?

      If any of them are considered by the government terrorist organizations then pretty much all of us have been tainted by receiving their unsolicited phone calls. One quick way to beef up the data base.

    • bmaz says:

      I am not sure but what they are not even limiting that to the “first degree of contact/Kevin Bacon”. Somebody who talked to somebody talking to a foreign interest is quite likely close enough for their interpretation.

  11. freepatriot says:

    off topic, from repuglitard bizarro land:

    apparently the repuglitards ain’t happy with Rep. Hilda L. Solis

    she told Sen. Lamar Alexander (R-Tenn.) that she was “not qualified” to speak about maintaining right-to-work laws that prohibit workers from paying union dues as a condition of employment.

    so what’s the problem ???

    “These aren’t positions that you’re allowed not to have an opinion,” Wyoming Sen. Michael Enzi, the ranking Republican on the committee, told Politico. “These are extremely critical things that she was asked about. Each of the people that asked questions from the Republican side asked about different areas of labor law and wondered what she was going to do. And we still don’t know.”

    so the repuglitards now claim that there are issue where the nominee IS NOT ALLOWED TO HAVE NO POSITION

    could some of the brainiacs around here remind me what Attorney General mucasy’s position on waterboarding is ???

    no opinion on labor issues = unfit for office

    can’t understand what waterboarding is = fit to be attorney general

    the repuglitards don’t see the disconect

    • freepatriot says:

      and BOY DID alexander and enzi pick the WRONG DAY to make that arguement

      if ypu’re gonna question a person’s candor on labor issues, you should kinda make sure you didn’t vote for someone who has LESS CANDOR about CRIMES AGAINST HUMANITY

      get a load of the opening paragraph of this wapo article

      Just 14 months ago, at his confirmation hearing, Attorney General Michael B. Mukasey frustrated and angered some senators by refusing to state that waterboarding, the near-drowning technique used on three prisoners by the Central Intelligence Agency, is in fact torture.

      repuglitards throw a hissy fit

      wapo destroys repuglitard hissy fit

      the repuglitards are HYPOCRISY ON PARADE

      how low will they go ???

  12. MadDog says:

    …Did the court ask only about a database consisting entirely of incidentally collected information? Did they ask whether the government keeps incidentally collected information in its existing databases (that is, it doesn’t have a database devoted solely to incidental data, but neither does it pull the incidental data out of its existing database)?

    Or as Mikey McConnell said in this CQPolitics article yesterday:

    Intelligence Chief Says New Policy Will Dramatically Boost Information Sharing

    As one of his final acts as the nation’s spy chief, Michael McConnell on Friday said he would soon sign off on an intelligence information sharing policy that will result in a “staggering” increase in the amount of data available within the community…

    …McConnell said the policy would allow spy agencies to access each other’s intelligence databases much as Internet search engines such as Google allow Web users to retrieve data, with some limitations. When there is a dispute that cannot be resolved by lower-level leadership officials, the DNI would decide whether the information gets shared…

    …The “biggest databases” in the intelligence community will participate: those at the FBI, the National Security Agency, the National Geospatial Intelligence Agency, the Defense Intelligence Agency, the CIA and the National Reconnaissance Office.

    “It will be staggering,” McConnell said of the increase in the amount of information he expects will be shared…

    So you see EW, the only problem that you and the FISC have is that you’ve both jumped the gun.

    Mikey McConnell says the database ya’ll are talking about doesn’t exist yet, but in a couple of days, you betcha!

    • LabDancer says:

      IMO what DNI McConnell was referring to was having independently developed programs many of which are inaccessible to others, in large part because a number of them weren’t developed with communication in mind. The same problem doesn’t exist on anything like the same level in western European police & national security systems, because for the most part they have one, rather than multiple, national policing authorities.

      [This doesn’t mean there are no walls in those countries to prevent lesser authorized agencies from accessing higher classified material, but it does mean the walls that exist there are more the result of human protocol decisions to segregate data, and less, as in US, a function of systemic factors where agencies are left to work against each other’s purposes.]

      So in context McConnell is referring, entirely or mostly [I’m guessing consciously the former, and only unconsciously the latter – McConnell has shown a propensity for tripping all over his tongue in explaining things, and what he says has proven in the past to be far more, or at least far differently, revelatory, than what Hayden for example- being the best example- says.] to the anticipated ’success’ in getting that giant NSA City to the point where it will be to some extent coordinated with the [NSA’s] perception of what each of the agencies ‘need’ in the way of ‘product’ [Actually, “product” is better, because that’s what McConnell refers to it as.].

      The tell, or ‘unconscious’ or unintended part of his reference is to the expectation that the overall system will ‘process’ its rather daunting back log of ‘material’ [it being apparently unworthy of being labelled ‘data’ at this point in the production line].

      To the extent to which the DoJos are accurately reported in the FISC of Review decision as being truthful [or truthiful], it depends what is meant by the word “data”. Is raw, undifferentiated sludge “data”?

      • bobschacht says:

        Is raw, undifferentiated sludge “data”?

        Yep. In my way of understanding things, only after that undifferentiated sludge gets analyzed does it become “information” although others may use data and information as synonyms.

        Bob in HI

  13. obsessed says:


    Folks – Currently neither Cheney, nor Rove, nor Schloz, nor many others has been charged with a crime. Is Bush done with pardons? I mean … if he preemptively pardons Rove or Cheney doesn’t he have to give some clues about the crimes he’s pardoning them for? Or can he just blanket pardon them for anything they may have done in his employ?

    And do we think he’ll do something like that, or just slink away and hope nothing happens?

  14. oldoilfieldhand says:

    What about deliberately collected information? Oh wait, we don’t eavesdrop or torture, right?

    • bigbrother says:

      The technical lowdown on the guts of TIA
      Previously, Wired had published only portions of whistleblower and former AT&T technician Mark Klein’s revelations about the secret rooms that the NSA has installed in major telco hubs across the country. The rest of the evidence that Klein provided has been sealed by the court as part of the EFF’s ongoing lawsuit against AT&T and the NSA.

      Anyone anytime is recorded in these hub where the communications are sent to storage. Plausable deniacility…we do not do that. Yes plunger is right with that kind of intel every politico can be extorted.

      • Rayne says:

        That link to ArsTechnica is very good, in that it discusses the TTP’s (Trusted Third Parties) — and that’s where one of the loopholes may be.

        ondelette (61) — but the out for the government is to say that “databases” (note the plural in White House critique) are part of a different program AFTER the program that the FISCR opinion addresses, one in which raw data culled from the first program has been pooled into a separate, later program.

        Laundered data — or data that’s been merged with other context, like that gathered by fusion centers inside the U.S.

  15. earlofhuntingdon says:

    Bush’s penchant for Jesuitical parsing makes Clinton look like a piker.

    If Bush’s DOJ says the USG does not maintain our information in its database, it’s most likely avoiding the admission that such a database exists, but it’s in private hands and the USG pays to access it. The balance of these claims could be similarly dissected. None of them is credible.

    • bobschacht says:

      With tinfoil hat firmly in place:
      Given BushCo’s penchant for contracting everything out, I wonder if they are less than fully forthcoming to the Obama administration about who has subcontracts for what, but has arranged to maintain their own access to the databases being run by those subcontractors even after January 20?

      Or in general, what do you think certain people might have left behind, including friendlies placed here and there (as Cheney was wont to do) who would be happy to continue to share insider information with other members of the old “Team”, as Schloz called them– on the QT, of course.

      Gee, this tinfoil hat is hurting my head. I’d better take it off.

      Bob in HI

      • Kathryn in MA says:

        Bob in HI – i have the same tin-foil hat as you! Amazing!
        These contractors have NOT sworn to uphold the constitution, probably HAVE sworn a loyalty oath to the Bushes.

  16. THATanonymous says:


    I have personal knowledge that every pay telephone in Berkeley was tapped in 1969. Think about it. No computers, at least not like you’re used to, no voice recognition, just LIVE,real-time taps on every single payphone. Requires more than just a little manpower and a cnc structure right? And it sure as hell wasn’t only Berkeley. It’s only I can say Berkeley from personal knowledge.

    Now, the government has NEVER reduced its monitoring capability, EVER. Why would they? Where’s the disincentive? Know anybody important who ever did time? Paid a large fine? Ever seen an undoctored spy budget, EVER? If you follow me this far, why are there any questions about what they’re doing now? If they can, they will and they do. The rules are just a sideshow and always have been.

    –TA (the law is NOT the law)

  17. Mary says:

    33 – You are making yours an pretty darn interesting life, Leen. Love that you decided to make a spontaneous sign and thanks for sharing your take (look forward to the Brookings/Gaza report). I’m with you on Feingold and questions, esp since he’s had the intel committee briefing too. Leahy, Feingold and Whitehouse are in a pretty different category when it comes to Committee questions in general, all committees. Unfortunately, Graham is in his own category for the Republicans too and he’s been clued in to some of the bad stuff, so I learn from his questions, even if it involves learning what I don’t want to know.

    • Leen says:

      After 31 years of raising three daughters and the youngest in now in her third year of college I was able to start spending some time focusing on a few interest of my own.

      Found out from the Pinkers that it was totally legal to hold up signs as high as your shoulders during the breaks. C-span seems more than willing to shine some light on the signs. Colonel Ann Wright is a true patriot

      I have always found Feingold’s line of questioning clear, consistent, on point and honorable, whatever the issue. Spector sure got feisty towards the end (around 6:00 p.m.) of the hearing pushing Leahy for more time. They wrestled a bit

  18. Leen says:

    Forgot to mention and this is no bullshit. Thursday morning as I was standing in a very long line at Starbucks (need that double espresso in the morning) in Union Station guess who was standing in front of me. Seymour Hersh. I leaned over and whispered to the woman he was standing with (ends up being his sweet and wonderful wife) “is that who I think it is”? She said yes. I could not hold back, I started babbling. “Seymour you are one of my heroes, thank you for all you do” yada yada. He and his wife (who seemed to have a British accent) were so gracious and kind. We talked the middle east , they had just returned from Beirut. Seymour indicated that he had tried to get into the Gaza before they returned. They were so patient and accessible to a peasant and more than willing to talk.

    Seymour is truely one of my heroes. Can you imagine if he had been able to get into the Gaza and write an article

    • Loo Hoo. says:

      OMGosh!! How cool that they spoke with you so openly. I really look forward to my New Yorkers (the only deadwood I still get) after Tuesday and Hersh gets all of his new stories.

  19. JohnLopresti says:

    The analog loop descriptions several folks wrote are apt. Part of what Calea did was to address how the digital soup is only a primordial aggregate. Reading the court paper is fairly cryptic; it lacks ocr-ability; it has deletions that are unguessable; it has what I think are some Reggie-isms, stern and energetic; there are ex parte addenda. It is interesting that even the interest of the complainant is barely decipherable, mostly in allusions to how narrowness is the rule of the day; I see no reference to strategies like nsl letters. I thought of two possible interested parties, Verizon, who provisioned a parallel noc for Calea compliance in the tumult of the vacuum program, and Qwest, but the latter’s interests might be equally as colorful as some of the judges’ rhetoric and I do not see a hint of that. Maybe eff has a better instinct for the database redherring. I think the bits go in the silo and no way they would unmetadata-ize them, though Russ can ask about that; there are patent circumlocutions in the document. I would expect Fisc by now has some bright telecomms clerks standardizing the generalities in a configuration congressional committees might find readable, though there is ample expertise in congress on this, too. The way I heard Seymour depicted, he is the sort of person who would do the newsbeat without blackberry or cellphone; perhaps envelopes are adequate for jotting the functional equivalent of a rollodex. I have been looking for the Holder transcript, too; maybe WaPo will produce one, Alderson probably has a substantial fee.

  20. Tortoise says:

    Well, what does “maintain” mean? Is there a legal definition? One can certainly possess something without maintaining it. (My car would be a good example).

    If I dump huge amounts of data into a storage system ONCE, and then do nothing further to it, I could hardly be said to be “maintaining” a database. And if I decide to read it periodically, well that’s not really maintenance either, is it?

    • nahant says:

      When it comes to collected communication and you save IT you are maintaining it as you still posses it!

    • Rayne says:

      Yeah, this is really more of an exercise in finding all the loopholes and identifying the various methods of parsing words that glue together parsing.

      Does not maintain =
      – not kept in their servers
      – not managed by their people (Fourth Branch!)
      – managed by third parties here or abroad
      – not on American soil
      – not in a format that one could consider ‘maintained’
      – a foreign database owned/operated by some other entity and from whom the government buys information in final form only

      a database =
      – there’s actually more than one database
      – there’s subsets, but not A database
      – the data’s in an undivided, unstructured mass
      – the data never has to be sorted in any manner, only searched

      incidentally collected information =
      – everything, all of it, from meta to content, because it’s all vacuumed up into a non-database
      – oh, oops, we collected just a little more than the search parameters because there might be something “attached” or peripherally related
      – everything that sounds or looks remotely like falafel (phalfell, flafelt, flatfelt, middle eastern foods made of chickpeas or italian ceci or garbanzo beans and the foods with which they are served like flatbreads and so on…), or Bill O’Reilly’s fantasies about falafels and f*cking
      – everything from every person in the U.S. who is incidentally middle-eastern heritage, and the persons they communicate with

      non-targeted =
      – who the hell isn’t targeted? them.

      United States persons =
      – citizens of the U.S. on U.S. soil
      – non-citizens with green cards on U.S. soil
      – everybody else on U.S. soil
      – U.S. citizens off U.S. soil
      – anybody using a U.S.-based ISP or email service

      no evidence to the contrary –
      – because evidence has been redacted
      – because evidence has been deemed deepest national secret
      – because evidence is in those millions of emails missing in action
      – because it’s on Karl’s Blackberry

      I’m sure I’ve missed something already, and I could go on for days about the rest.

      I’m only on page 5 of the opinion and I can find holes big enough to drive an up-armored Humvee through, guns blazing.

      The biggest hole — and Selya points to it — is “‘reasonably believed’ to be outside the United States.” Says, “This proviso is of critical importance here.”

      What does a communications provider have to do with this point in the process? they are merely a pass through; they’d have to monitor and earmark communications continuously or store data to determine whether the content could be “reasonably believed” to be outside the United States.

      How doesn’t every damned Canadian-based RIM-routed Blackberry email not fall into this hole, for example?

      [All the more reason for Obama to give up the Blackberry.]

  21. Tortoise says:

    Bob is right. A huge pile of data is not information. And its also not a database. Rather it is equivalent to a signal to be analyzed. From time to time this signal can be fed into the latest algorithm to generate some type of information. The output might be in the form of a database but does not have to be; for example, the software could simply generate a report.

    In which case – there is no database and no maintenance. But the information still exists and is available for use any time.

  22. Synoia says:

    “a database”

    True. They have many databases. And they can combine information from them.
    IBM’s middleware, webcenter, is designed for that purpose.

  23. Rayne says:

    Forgot to add there’s at least one other program in the mix, too, and there could be misinterpreted or misfed information about that other program which makes all of this even more convoluted.

  24. DWBartoo says:

    Leen, may your amazing adventures continue, and, hopefully, you will continue to share them with those of us residing in the festering backwaters of the hinterlands?



  25. bigbrother says:

    Communications Assistance for Law
    Enforcement Act, which grants unprecedented access to private communications. Carnivore is a tool
    developed by the US Federal Bureau of Investigation to exploit that access

  26. ondelette says:

    Sorry I didn’t have time to read all the comments, but in case nobody mentioned this, the Whitehouse critique of the “Leahy” proposal for FISA amendments (really the proposal of the SJC at the time of the PAA), includes,

    The [Leahy FISA modernizations] would impose significant new restrictions on the use of foreign intelligence information, including information not concerning U.S. persons, obtained or derived from acquisitions using targeting procedures that the FISA Court later found to be unsatisfactory. By requiring analysts to go back to databases and pull out the information, as well as to determine what other information is derived from that information, this mandate would place a difficult, and perhaps insurmountable, operational burden on the Intelligence Community in implementing authorities that target terrorists and other foreign intelligence targets located overseas.

    Under the circumstances, given that the above was written by the Bush White House, the contention that there are no databases containing incidental information is patently absurd.

  27. bigbrother says:

    In general, more is known about the state of government sponsored surveillance than corporate surveillance
    which, without regulatory oversight, is certainly far more extensive, though usually in the
    guise of “marketing research” or competitive analysis.

  28. ondelette says:

    Rayne – that isn’t a valid out. Categorize data in enough aggregates sliced enough ways, and it can be inverted to regenerate single cases. It’s called having an admissible set in Radon transform theory, or an invertible galois connection in other domains. Besides, how do they attach names with suspicions that arise out of the data mine if they aren’t in the DB anywhere?

    There’s no out in what you are saying, unless the FISCR is too uninformed to know that. And that latter is a sure thing, given that they left the minimizations in tact in the FAA and only changed the targeting rules.

    Absolutely no way the government doesn’t have data that should have been minimized, absolutely no way it isn’t in one or more databases. The argument is always that they are doing the best they can and have a country to protect.

    • Rayne says:

      I didn’t say it was a valid out. It’s more of a “nanny-nanny-boo-boo” weasel out. If these guys operated above board and were valid or legit, we wouldn’t even be having this discussion.

      But as long as they think that the fiction has been bought that there’s no evidence, or that they actually minimize, they’ll use the out.

      Frankly, that FISCR says there’s no evidence leads me to believe they are “uninformed.”

      Did anybody happen to notice this little tidbit last month, by the way?

      NSA patents a way to spot network snoops

      The U.S. National Security Agency has patented a technique for figuring out whether someone is tampering with network communication. The NSA’s software does this by measuring the amount of time the network takes to send different types of data from one computer to another and raising a red flag if something takes too long, according to the patent filing.
      Source: Robert McMillan, IDG News Service, December 21, 2008

      [source: Roland Piquepaille, — RIP, Roland.]

      They not only tip their hand at what they’ve done to eliminate any detection — and that means eliminate evidence — but they patent it so that they can 1) profit off any party that tries to use the same method, and 2) they can “legitimately” keep an eye on whomever is looking for their handiwork.

      Seems bizarre that a government agency isn’t creating this as open source, for the public’s benefit, but hey, they aren’t actually serving the greater good.

  29. bobschacht says:

    ”A huge pile of data is not information. ”

    The old systems theorists had a word for it: they called it a ”heap.”

    ”And its also not a database.”

    A ”database” implies that the data has been organized in some systematic fashion. For example, the data could be segmented into ”records” (eg ”telephone calls” or ”emails”) and organized by point of origination (email address, IP address, telephone number, country of origin, etc), destination, date, size, type, etc. That would make it a database. Another way would be to index it, or tag occurrences of of key words, etc. For example, you could tag the occurrence of words in certain languages, such as Arabic. Or you could tag names, like ”Abu Zubeydah”.

    Even if the data is left as an undifferentiated ”heap,” it is likely to have distinguishing overall characteristics, like overall date(s), source(s), etc., like ”San Francisco server stream from AT&T tap #4, February to March, 2002.” In combination with other similar ”heaps,” the aggregate would constitute database of sorts.

    Bob in HI

  30. bobschacht says:

    Geez, while I’m laboriously thinking through a response to Tortoise @ 53, you guys are busy cranking out a dozen posts that make my response look “elementary, Dr. Watson!”

    Bob in HI

  31. sunshine says:

    What database did they keep this info in?

    Federal Source to ABC News: We Know Who You’re Calling
    May 15, 2006 10:33 AM

    A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

    “It’s time for you to get some new cell phones, quick,” the source told us in an in-person conversation.

    ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

    Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.…..urce_.html

  32. JohnJ says:

    FWIW; when I first got a cable internet connection ( around 6/2001 ) I put up a firewall that recorded denied attempts to find open ports on my PC.

    Virtually every hacking attempt came from or passed through Crystal City/Rosalind VA area.

    I live in FLA.

    Strange path, huh?

    Looks like they weren’t just recording, but invading.

    • plunger says:

      This summer of 2001 timeframe coincides perfectly with the timeframe during which warrantless wiretapping by the Bush Administration against the FBI would have revealed the extent to which the Able Danger operation was tracking CIA/Mossad asset, Osama Bin Laden. THE smoking gun of 9/11 planning and foreknowledge was the Administration’s order to shut down Able Danger and destroy ALL of their data on him, just weeks prior to 9/11.

      This incident precisely mirrors the effort to later bring down Brewster Jennings in the weeks preceding the invasion of Iraq.

      These two Bush Administration initiatives – 9/11 and the invasion of Iraq, each required the silencing and blinding of US intelligence assets. These are the smoking guns of the Shadow Government Coup to usurp US Government systems to implement the GHW Bush, David Rockefeller, Dick Cheney, Donald Rumsfeld, Brent Scowcroft, Ken Lay et. al. agenda, in concert with the PNAC/Lunatic/Zionist wing of the Rockefeller empire.

      This was all orchestrated at a World Bank/IMF level, and Total Information Awareness was REQUIRED to enable the overthrow of the United States to the benefit of the World Banking Elite. Their ultimate goal was to destroy the economy of the United States to force a new global currency and government.

      They did it.

      Read the posting by El Jefe here:…..08.75.html

      And by: LUNAskepTIC

      Go to the middle of this page and read everything he says, on this page, and anywhere else you can find his writing:…..c=11308.15

      Do so with your eyes and mind WIDE OPEN.

      • JohnJ says:

        These attempts were pretty primitive in that they left a trail. Of course this was the time of Win2000 and ME, before access was most likely built into the operating system. I used to get up in the morning and at least 4 hack attempts were recorded.

        Note also at the time I hadn’t discovered any interesting blogs and none of my activities should have triggered any normal monitoring.

        Interesting that the same firewall program no longer seems to keep a record of attempts by default and that I can’t find the same route tracing software.

  33. plunger says:

    The “Able Danger” data-mining operation that supposedly uncovered the New Jersey cell of the 9/11 plotters was – for some reason yet to be determined – blocked and prevented from apprehending key figures in the plot, according to the testimony of at least three people who have direct knowledge of this matter. Shea’s memo opens up a possibility that may relate to (and explain) the “Able Danger” blockage: was surveillance of Arab terrorist groups in the U.S. subcontracted out to the Israelis, with the knowledge and complicity of the CIA, so that “Able Danger” was considered poaching on the Israelis’ preserve? Shea cites a piece in The Forward that describes Israeli covert activities in the U.S. as a violation of “a secret gentleman’s agreement between the two countries,” and avers:

    “The real question today, however, appears to be whether the ‘gentlemen’s agreement’ did indeed prevail here and, because we lacked adequate warning from our surrogates who were keeping the Arabs under surveillance, helped bring us to disaster.”

  34. plunger says:


    Israeli Company Provides U.S. Wiretaps

    One company reported to be under investigation is Comverse Infosys, a subsidiary of an Israeli-run private telecommunications firm. Comverse provides almost all the wiretapping equipment and software for U.S. law enforcement.

    Custom computers and software made by Comverse are tied into the U.S. phone network in order to intercept, record and store wiretapped calls, and at the same time transmit them to investigators.

    The penetration of Comverse reportedly allowed criminals to wiretap law enforcement communications in reverse and foil authorized wiretaps with advance warning. One major drug bust operation planned by the Los Angeles police was foiled by what now appear to be reverse wiretaps placed on law enforcement phones by the criminal spy ring.…..4826.shtml

    Cheney had fugitive Kobi Alexander (CEO of Comverse) stowed away in the witness protection program (google him – study him). I have literally thousands of documents and tens of thousands of links that, taken in their entirety and viewed through the eyes of a power-crazed globalist, serve to reveal the entire mosaic – but only for those with a willingness to believe the truly unbelievable.

  35. wethepeopleismarxnow says:

    Why does Microsoft’s Vista need 1 gig of ram to run properly?

    I’m no expert, it seems odd that Win98 ran fine with 32 Meg, and XP ran fine with 128 Meg. Why does Vista require so much ram? What features does vista provide that Win98 and XP didn’t provide?

    An instant access database to any windows PC in the world perhaps?


    • PJEvans says:

      “instant access” is an oxymoron. Has to take time, and people who have firewalled their systems take longer. (Nonetheless, I assume they read my e-mails. Hi, NSA guy!)

    • JohnJ says:

      What features does vista provide that Win98 and XP didn’t provide?

      About 4 times as much money to Micro$oft and lots more programmers jobs.

  36. JohnnyTable70 says:

    IT being the key word in the sentence, ” the government maintains IT does not maintain a database.” This simply means that a third party, particularly a GOP friendly data mining firm ( the kind that Karl Rove used to micro target Republican voters in 2004) MIGHT actually run the data base which IMO is much worse.

  37. JohnJ says:

    The government assures us

    How’s this for simpler: they are lying?

    Who said this and would any individual actually have any real consequence for lying?

    I remember asking my parents as a kid “why doesn’t the prez just ignore congress and do it anyway”? Their answer was “he can’t; it’s the law”.

    Well that works IF HE CARES WHAT THE LAW IS!

    My parents were somewhat naive in that they believed that no one in the Gov would knowingly ignore the law. (Remember my mother worked directly for J.E. Hoover and my dad retired with a White House Sec Clearance; that was their nature.)

    This group are fascists in that the only “law” is one that threatens them with some real consequence.

  38. freepatriot says:

    Why does Microsoft’s Vista need 1 gig of ram to run properly

    I dispute the notion that vista does “Run Properly”, no matter how much ram ya got …

  39. JohnJ says:

    Even M$ agrees relented and has changed the name.

    There is also the added benefit of computer upgrades required.