The Quantico Circuit

Yesterday, Wired’s Threat Level reported on the Quantico Circuit, what appears to be Verizon’s back door to give the government complete access to our telecommunications.

A U.S. government office in Quantico, Virginia, has direct, high-speed access to a major wireless carrier’s systems, exposing customers’ voice calls, data packets and physical movements to uncontrolled surveillance, according to a computer security consultant who says he worked for the carrier in late 2003.

"What I thought was alarming is how this carrier ended up essentially allowing a third party outside their organization to have unfettered access to their environment," Babak Pasdar, now CEO of New York-based Bat Blue told Threat Level. "I wanted to put some access controls around it; they vehemently denied it. And when I wanted to put some logging around it, they denied that."

Pasdar won’t name the wireless carrier in question, but his claims are nearly identical to unsourced allegations made in a federal lawsuit filed in 2006 against four phone companies and the U.S. government for alleged privacy violations. That suit names Verizon Wireless as the culprit. [my emphasis]

To which John Dingell and friends respond, this is another reason not to pass telecom immunity.

Because legislators should not vote before they have sufficient facts, we continue to insist that all House Members be given access to the necessary information, including the relevant documents underlying this matter, to make an informed decision on their vote. After reviewing the documentation and these latest allegations, Members should be given adequate time to properly evaluate the separate question of retroactive immunity.

Yeah, and while we’re at it, let’s figure out why the email providers are actually opposed to retroactive immunity. 

My Version of Pelosi’s Statement on Exclusivity

TPMM wrote up a summary of a response Speaker Pelosi gave to a question I asked at a blogger conference call today that has caused a stir. While I don’t disagree with McJoan’s take–if the Speaker had really said immunity was the issue, it would reflect a short-sighted view of FISA (though I’d say the same about other topics, such as segregation; after all, once the government can legally use information that has been improperly collected, that’s toothpaste out of a tube, too)–I’d like to give my version of the conversation, because I don’t think that’s what Pelosi said or meant.

The call was originally supposed to be focused on contempt. So after the Speaker finished telling about the Paul Wellstone Mental Health and Addiction Equity bill, someone (Mike Stark, I think) asked for reassurances that the Democrats would continue to pursue contempt after we win the White House and larger margins in both houses next year. Pelosi spoke at length about how important this contempt fight is because of the separation of powers issue–and stated that this is a better case than when GAO tried to get Cheney’s records on his Energy Task Force. Finally, in response to a follow-up, Pelosi stated that Democrats would continue to pursue the contempt issue after November.

Then, I piped in. I basically asked the idea laid out in this post.

Email providers argue that immunity will contribute to uncertainty. They speak of receiving "vague promises," they demand "clear rules" and "bright lines."

Given that complaints about uncertainty and unclear demands have led these email providers to strongly oppose retroactive immunity, it suggests the requests the email providers got were really murky–murky enough that the requests caused the email providers a good deal of trouble.

If the government was making such murky requests, don’t you think Congress ought to know what those requests were in more detail?

That is, since email providers just made a very strong statement against immunity, shouldn’t we be asking them why they’re opposed to it?

Pelosi, having just spoken at length about about separation of powers, then said that immunity wasn’t the only issue, exclusivity was important as well.

Note, I’m not sure I can dispute Paul Kiel’s description, though I don’t remember Pelosi emphasizing exclusivity in the way his post suggests at all. I certainly didn’t hear her say immunity is the issue, but then I was listening for my answer. Read more

The Government’s Unclear Demands for Emails

Ryan Singel and Mary have pointed to to Ken Wainstein’s confirmation of something we’ve been discussing for some time: the problem with FISA’s restrictions on foreign communication has to do with email.

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because "essentially you don’t know where the recipient is going to be" and so you would not know in advance whether the communication is entirely outside the United States. [my emphasis]

Now that the Administration is finally telling us some truths about their program, I think it worthwhile to repeat and expand on an observation I made here about CCIA’s letter opposing telecom immunity. CCIA, after all, represents three big email companies: Microsoft (Hotmail), Google (Gmail), and Yahoo. And in their letter, these email companies directly tie immunity with confusing requests from the government.

To the Members of the U.S. House of Representatives:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the “FISA Amendments Act of 2007,” as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact. !!

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support.

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Shorter Google:

"Don’t eliminate the competitive advantage I gained by trying to protect Americans’ privacy."

McJoan reports that the CCIA wrote a letter to Congress opposing retroactive immunity.

In strong rebuke of the Chamber’s knee jerk Republican pandering, the trade group that actually represents companies in the computer, Internet, information technology, and telecommunications industries, the Computer & Communications Industry Association (CCIA) is opposed to telco amnesty [pdf], and have weighed in with their own letter to Congress.

To the Members of the U.S. House of Representatives:

The Computer & Communications Industry Association (CCIA) strongly opposes S. 2248, the "FISA Amendments Act of 2007," as passed by the Senate on February 12, 2008. CCIA believes that this bill should not provide retroactive immunity to corporations that may have participated in violations of federal law. CCIA represents an industry that is called upon for cooperation and assistance in law enforcement. To act with speed in times of crisis, our industry needs clear rules, not vague promises that the U.S. Government can be relied upon to paper over Constitutional transgressions after the fact.

CCIA dismisses with contempt the manufactured hysteria that industry will not aid the United States Government when the law is clear. As a representative of industry, I find that suggestion insulting. To imply that our industry would refuse assistance under established law is an affront to the civic integrity of businesses that have consistently cooperated unquestioningly with legal requests for information. This also conflates the separate questions of blanket retroactive immunity for violations of law, and prospective immunity, the latter of which we strongly support. [emphasis McJoan’s]

And if I’m not mistaken, Google and Yahoo are the two primary CCIA members who would be (as the letter states) "called upon for cooperation and assistance in law enforcement" [Update: as WO points out, Evil Bill Gates is as big a player in free email, and was also asked for search queries.] As you’ll recall, both Google and Yahoo were asked to turn over vast amounts of data that would have also revealed a good deal of proprietary information (Yahoo complied, Google fought the request).

The Justice Department has asked a federal judge to compel Google, the Internet search giant, to turn over records on millions of its users’ search queries as part of the government’s effort to uphold an online pornography law.

Google has been refusing the request since a subpoena was first issued last August, even as three of its competitors agreed to provide information, according to court documents made public this week. Google asserts that the Read more

Mixed Telecom Signals

As Ryan Singel points out, Silvestre Reyes went from writing a scathing editorial with Senators Leahy and Jello Jay and Congressman Conyers on Monday, denouncing Bush’s scare tactics, to announcing imminent agreement by the end of the week.

Regarding a compromise deal, Reyes said: "We think we’re very close, probably within the next week we’ll be able to hopefully bring it to a vote."

Seemingly a pretty big turn-around over the course of the week, no?

But there’s more that’s funky with Reyes’ timing. The AP reports his statement was taped Friday, not Sunday.

Rep. Silvestre Reyes, in a television interview broadcast Sunday, did not specifically say whether the House proposal would mirror the Senate’s version.

[snip]

Reyes, whose interview was taped Friday, appeared on CNN’s "Late Edition," as did Blunt.

Friday happens to be the same day that Harry Reid moved to pass a 30-day extension to the PAA.

As we move forward, there is no reason not to extend the Protect America Act to ensure that there are no gaps in our intelligence gathering capabilities. Even Admiral McConnell, the Director of national Intelligence, has testified that such an extension would be valuable. But the President threatens to veto an extension, and our Republican colleagues continue, inexplicably, to oppose it.

“I urge them to withdraw their opposition. I will now ask unanimous consent to take up and pass S. 2664, a bill to extend the Protect America Act for 30 days, and to make the extension effective as of February 15, to ensure that there are no adverse legal consequences from the President’s decision to let that law expire.”

Now I suppose the 30-day extension, made retroactive to February 15, would amount to just a 15 day extension. And I see the value of forcing Republicans to repeatedly refuse to ensure the wiretaps continue.

But which is it? Imminent deal, or two more weeks?

And while we’re talking about weird temporal anomalies, can someone help me with the timing of this passage?

Reyes, D-Texas, said he was open to that possibility after receiving documents from the Bush administration and speaking to the companies about the industry’s role in the government spy program.

"We are talking to the representatives from the communications companies because if we’re going to give them blanket immunity, we want to know and we want to understand what it is that we’re giving immunity for," he said. "I have an open mind about that."

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It’s All About $$$

We know that the Administration only became intransigent about immunity for telecoms after a telecom lobbyist took over as Counselor to the President. And we know the telecoms cut off wiretaps–even a FISA one–when they didn’t get paid by the FBI. It’s pretty clear the fight over telecom immunity and FISA is about the money.

Which is probably why Republicans are now whining that telecoms are not paying them enough for their willingness to gut the Constitution. 

In a reflection of the sensitivity of the subject matter, and an apparent recognition that they would undermine their own messaging by appearing to be motivated by fundraising concerns, Republicans on and off Capitol Hill declined to comment on the record.

But several confirmed the griping in GOP leadership ranks over the phone companies’ shifting donations.

"When those numbers are made evident, it causes some angst," one Republican lobbyist said. "Leadership are told by staff, who look through this. There’s communication back and forth" between GOP leadership and downtown.

"There’s no question that from time to time staff, and maybe some Members, say to fellow travelers: ‘Are you giving us some air cover? Are you helping us help you?’"

Added another K Street Republican: "There’s a growing frustration that a lot of these guys getting screwed by Democratic leadership are continuing to load their coffers."

Republican leaders, this lobbyist said, "sit there and scratch their heads and say, ‘We’ve always been very supportive of free markets and our opponents haven’t, so why do they keep feeding the beast?’"

Shorter anonymous Republican aides: cough up for the immunity campaign. Now.

Can we start calling it a quid pro quo if this blatant demand to the telecoms works? And what’s the going rate for gutting the Constitution, anyway?

Republican No Shows on FISA Negotiation

Let’s hope getting stood up teaches Jello Jay about Republican priorities:

In what should have been a bipartisan, bicameral meeting, staff members of the House and Senate Judiciary and Intelligence Committees met today to work in good faith to reach a compromise on FISA reform. As we have said, we are using this week to work on a compromise that strengthens our national security and protects Americans’ privacy. Unfortunately, we understand our Republican counterparts instructed their staffs not to attend this working meeting, therefore not allowing progress to be made in a bipartisan, bicameral way. While we are disappointed that today’s meeting could not reflect a bipartisan effort, we will continue to work and hope Republicans will join us to put our nation’s security first.

I guess immunity and all that isn’t so important after all…

SCOTUS Says “No Thanks” to ACLU Suit–Will It Change the FISA Debate?

SCOTUS just declined to review the 6th Circuit’s dismissal of the ACLU warrantless wiretapping suit.

 The Supreme Court rejected a challenge Tuesday to the Bush administration’s domestic spying program.

The justices’ decision, issued without comment, is the latest setback to legal efforts to force disclosure of details of the warrantless wiretapping that began after the Sept. 11 attacks.

The American Civil Liberties Union wanted the court to allow a lawsuit by the group and individuals over the wiretapping program. The 6th U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored.

McJoan and Christy point to the key issue here–standing. As Glenn points out, judges have ruled that this warrantless wiretapping program was illegal, yet also ruled (at least the 6th Circuit) that no one had standing to do anything about it. 

It’s not clear whether the 9th Circuit will rule different on the majority of the 40 or so cases out there. But for now, this decision sure seems to put the immunity debate in a different light. After all, if judges won’t let any of these suits advance because no one can prove standing, then why bother with the constitutionally suspect step of having Congress intervene in the Courts?

The rub is the Al-Haramain lawsuit, where plaintiffs once had documented proof that the government had intercepted calls between one of the Charity’s members and its lawyers in the US. Only the government’s Kafkaesque games, which demand lawyers for the charity treat their own memory as classified, prevents the charity from proving standing.

Is Congress going to bigfoot into the privileges of another branch of government because one Islamic charity once had proof of the Bush Administration’s law-breaking? Or is it the threat of a differing opinion in the 9th Circuit the basis of the single-minded panic about immunity?

Shorter WSJ: George Bush Is Irrelevant and So Is McCain

This WSJ editorial beating up on Dems for their shiny new FISA spine is full of the illogical blathering you’d expect. Take this paragraph, which claims that even with immunity from PAA and even with a FISA court order, the telecoms simply won’t do as they’re mandated to do.

Mr. Reyes claims that existing wiretap orders can stay in place for a year. But that doesn’t account for new targets, which may require new kinds of telecom cooperation and thus a new court order. Mr. Reyes can make all the assertions he wants about immunity, but they are no defense against a lawsuit. For that matter, without a statute in place, even a renewed order by the Foreign Intelligence Surveillance Court is likely to be challenged as illegitimate. A telecom CEO who cooperates without a court order is all but guaranteed to get not merely a wiretap lawsuit, but also a shareholder suit for putting the company at legal risk.

Apparently, the WSJ believes that even if the telecoms have immunity, it’s no defense against a lawsuit (someone better tell Mitch and Mike McConnell that all their immunity efforts are for naught). And even if the FISA Court issues a warrant under that statute known as "FISA," the telecoms would regard such an order as illegitimate, because there’s no statute supporting it.

And of course, the WSJ parrots the now mandatory claim that ACLU and EFF are really trial lawyers wearing low-paying disguises.

So instead they’re trying to do it through the backdoor by unleashing the trial bar to punish the telephone companies.

I’m most amused, though, by the closing paragraph, which gets to the heart of the panic over FISA.

Mr. Bush has been doing his part in this debate, but his political capital is waning. The Republican who needs to make himself heard now is John McCain. The Arizona Senator is voting the right way, but he seems curiously disengaged from a debate that plays to his national security strengths. The time to speak up is before the next 9/11 Commission. [my emphasis]

Bush’s "political capital is waning" must be GOP-speak for "don’t look now because the Democrats have stood up to Bush."  And, pathetically, the WSJ whines that John McCain isn’t cowering Democrats into unquestioning obedience, either.

It’s like flying without a net, isn’t it, WSJ? When you can’t rely on Bush’s "political capital" to cow others into compliance?

Don’t Cry For The Telcos – Bush & Cheney Are The Only Ones That Are Dying For Immunity

The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both Read more

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