Also, the Nail Polish Remover Lobby Didn’t Challenge Section 215 Orders

The takeaway from the FISC opinion released today from about 6 outlets seems to be that no telecom has ever challenged a Section 215 order.

But the opinion actually says more than that. It says,

To date, no holder of records who has received an Order to produce bulk telephony has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.

Now, if your bullshit antennae aren’t buzzing when you read that formulation, “no holder of records,” then you need to have them checked. Because it sure seems to allow for the possibility that someone whose customers had their records seized via someone deemed the actual holder of them objected. That entity, after all, wouldn’t be a Section 215 Order recipient, and therefore would have no standing to object, regardless of the statutory mechanism for doing so. (Plus, both EPIC and ACLU have — and had, by the time this order was written — objected. But they don’t count because they’re the actual customers.)

But remember, as far as we know, Section 215 has not been used for Internet metadata (except for subscriber information for the first 2 years of the program; see Verizon’s CEO bitching about the email companies his company stole data from for years complaining publicly about the dragnet). The one other big “customer base” we know has been targeted by bulk-ish orders are hydrogen peroxide and nail polish remover (acetone) purchasers.

However, there, too, like Internet providers whose data gets sucked up at a telecom provider’s switch, the actual beauty supply companies are unlikely to be the “holder of records.” The beauty of the Third Party doctrine, for the government, is it can always look elsewhere for people who have “records” that betray customers’ interests.

If only we had a powerful nail polish remover lobby we might be able to combat the dragnet.

13 replies
  1. Peterr says:

    You know, if the NRA ever got the idea that one of the query terms used by the NSA was “gun”, they’d get into this fight in a heartbeat.

  2. Peasantparty says:

    Reminds me of all those other strange things that 9-11 caused.

    Does the NSA have a consumer list for Duct Tape and Plastic Sheeting?
    I’m sure the manufacturer, one of Bush’s Buds needed to know if the competitors sold more than he did. It would be of issue for the Global Trade Market for him.

    The whistleblowers being attacked for espionage is a JOKE!

  3. orionATL says:

    if no telecomm has challenged, then it is reasonable to ask “why?”.

    could the answer be “because they are handsomely recompensed”.

    it seems entirely possible to me that the destruction of competition, thru merger, among telephone companies in the u.s. is a direct result of a doj/nsa alliance.

    if so, the perceived need to spy is not only operating way, way outside written constitutional boundaries,

    it is having a distorting effect on an important part of the u.s. economy.

    on another tact,

    again i ask, why is it that the cable companies are NEVER mentioned in any discussion of nsa spying or nsa depredations of privacy?

    this is not a trivial matter since cable companies provide millions of customers with internet communications, including skype.

  4. C says:

    @Peterr: The NRA has joined with the ACLU in their ongoing lawsuit against the dragnet. They have been supported via an Amicus Brief written by Jim Sensenbrenner the “author” of the Patriot Act.

  5. Phoenix Woman says:


    Ah, Jim Sensenbrenner, who to date has blocked every effort to reform or remove Section 215, suddenly wants to make like he’s Bob Barr?

    And where was he when the NSA was doing those things under GW Bush?

  6. Peterr says:

    @scribe: I’m waiting to see Wayne LaPierre holding a bottle of Cutex over his head, proclaiming “You can have my nail polish remover when you pry it from my cold, dead (but nicely manicured) hand!”

  7. bittersweet says:

    What I have been wondering about for awhile is how are all of these lists cross-referenced? How many innocent little lists can a person find themselves on before some government program decides the person is a risk? 2 Lists, 3 lists? How are these lists correlated to create a “person of interest? Can we stumble upon a critical number of lists and find ourselves “under suspicion”? Who is supervising the collection program?
    I think the public might be more outraged if they saw some of this collection relating to their own lives.
    For instance:
    Fingernail polish remover and pseudoephedrine? I have allergies and polish my own nails. Do these lists include how much one purchases, like 10 oz, or is it one big list?
    My husband got $300 out of the cash machine 4 times because he was out of check blanks. When I deposited the cash in my bank to pay the mortgage, I was asked for my I.D. and put on the “money laundering and possible terrorist list”. Now I am on 3 lists! Is some computer program out there operating on an algorithm that sets off a “no fly list”? What if I also lived on a farm and used, you know, fertilizer, AND polished my nails? What if I actually owned a gun? Do they keep track of the weedy web-sites I frequent?

  8. C says:

    @Phoenix Woman: According to him he was being kept in the dark about it like the rest of congress. As Marcy has quite convincingly pointed out elsewhere he had every reason to expect things like this to happen as congress was warned about this stuff when passing the stupid act. But that is his view.

  9. C says:

    Marcy is there any indication in the documents what this process is or whether the targets were even aware of it? Prior to Miranda most arrestees were not aware of their right to keep silent or consult an attorney hence the warnings. I find it hard to believe that the NSA or FBI was more upfront with the targets of these letters than they’ve been with Congress.

  10. emptywheel says:

    @C: @maria elena: In response to both your comments. Remember that Nacchio was objecting to something else–the sharing of records w/o an order.

    But the lesson is probably not lost on the telecoms. He objected, he got prosecuted AND his company got bought out. I’m not sure how they’re coercing here, btu I am sure they are.

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