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Thank You Nicholas Merrill

Today we learn the name of the guy who challenged the more abusive aspects of the National Security Letter program: Nicholas Merrill.

Now, following the partial lifting of his gag order 11 days ago as a result of an FBI settlement, Merrill can speak openly for the first time about the experience, although he cannot disclose the full scope of the data demanded.

[snip]

On a cold February day in 2004, an FBI agent pulled an envelope out of his trench coat and handed it to Merrill, who ran an Internet startup called Calyx in New York. At the time, like most Americans, he had no idea what a national security letter was.

The letter requested that Merrill provide 16 categories of “electronic communication transactional records,” including e-mail address, account number and billing information. Most of the other categories remain redacted by the FBI.

Two things, he said, “just leaped out at me.” The first was the letter’s prohibition against disclosure. The second was the absence of a judge’s signature.

Thanks to Merrill’s–and the ACLU’s–challenge of the gag order on NSLs, the authority has been slightly circumscribed (even as the Obama Administration tries to expand it).

Merrill’s ISP sounds pretty small in the grand scheme of things. So why was Merrill the guy fighting for our Constitution and not–say–Ma Bell?

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Prediction: Media Will Be Angrier About AT&T Breach than Illegal Wiretapping

Anyone want to bet that Rahm Emanuel will be more incensed that AT&T made his Gmail address vulnerable than about the illegal wiretapping the telecom did for Dick Cheney?

Apple has suffered another embarrassment. A security breach has exposed iPad owners including dozens of CEOs, military officials, and top politicians. They—and every other buyer of the wireless-enabled tablet—could be vulnerable to spam marketing and malicious hacking.

The breach, which comes just weeks after an Apple employee lost an iPhone prototype in a bar, exposed the most exclusive email list on the planet, a collection of early-adopter iPad 3G subscribers that includes thousands of A-listers in finance, politics and media, from New York Times Co. CEO Janet Robinson to Diane Sawyer of ABC News to film mogul Harvey Weinstein to Mayor Michael Bloomberg. It even appears that White House Chief of Staff Rahm Emanuel’s information was compromised.

And you think the generals and NYT’s overpaid CEO are gonna be a little miffed by the possibility that their data was compromised?

Thing is, AT&T is a shitty company. They’re a shitty company when they don’t take precautions to protect customer data. And they’re a shitty company when they agree to continue a lucrative wiretap program without even demanding proof that the Attorney General approved the program.

I just hope this stupid data compromise makes the MOTUs with their 3G iPads think a little bit about all the ways AT&T sucks.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Bob Lutz Hangs Up On Ed Whitacre’s GM

The inevitable has been announced; Bob Lutz is leaving Ed Whitacre’s new General Motors. From the New York Times:

Vice Chairman Bob Lutz will retire from the automaker effective May 1, people briefed on the plans said on Wednesday.

Lutz, 78, had been serving as a senior adviser to GM Chairman and Chief Executive Ed Whitacre after shelving retirement plans to take charge of the automaker’s marketing after it emerged from bankruptcy in July 2009.
….
The announcement comes a day after GM shook up its sales and marketing operations in its home market for the third time in five months.

Lutz was charged with overhauling GM’s marketing efforts under former CEO Fritz Henderson, but he appeared to have been sidelined by Whitacre, a former AT&T executive brought in by the Obama administration.

In late February, Whitacre named Stephen Girsky, a former investment banker, as special adviser and vice chairman in charge of corporate strategy, a move that raised questions about the tenure and role of Lutz.

And it really was inevitable. Last December when Fritz Henderson was unceremoniously dumped in a midnight putsch by Ed Whitacre, the former corporate phone boy from AT&T, we had some things to say here. Marcy, noting Whitacre’s professed desire to ram products to market quicker – to do everything quicker – observed:

Now maybe it would be possible to bring out new products more quickly. Maybe there is merit to disrupting the very complex model year and product cycle schedules that every car company relies on to manage new product introductions.

But I worry that this push to introduce products more quickly will come at a price–the price of doing it right, both from an engineering perspective (you don’t want the Cruze to come out with all sorts of recalls, after all) and from a marketing perspective (if you introduce a product but don’t have the marketing budget to support it, it’s not going to do much good).

And I commented that the Whitacre putsch had other consequences too:

There is one other consideration. With Fritz gone, the only marketable face GM has left to the actual auto people is Bob Lutz, and he will bolt in a heartbeat if he thinks the wrong car decisions are being made. Lutz is very comfortable with the big money wheeler dealers, but he is, first and foremost, a car guy all the way. And he does not need the money or grief. If they were to lose Lutz in any short order in addition to Henderson, they will have a potential real mess.

Well it turns out the thoughts may have been prescient. And make no mistake, Lutz is in fine health and as active and ornery as ever; he is leaving because Read more

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

“Or His Designee”

I noticed something really funny in the AT&T response to Dingell and friends that MadDog linked to. In a passage describing why the telecoms should be granted immunity for abetting the Administration in its illegal wiretap program, AT&T cites 18 USC 2411(2)(a)(ii) to argue that it is immune from prosecution.

The same principle–that a telecommunications carrier who cooperates in good faith with the authorized law enforcement or intelligence activities considered lawful by the executive–underlies numerous defenses and immunities reflected in existing statutory and case law. For example, 18 U.S.C. 2511(2)(a)(ii) provides that "notwithstanding any other law," carriers are authorized to provide "assistance" and "information" to the government whenever the communications service provider receives a "certification" from the Attorney General or his designee "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. When the Attorney General furnishes an appropriate certification, Congress has decreed that "no cause of action shall lie in any court." It does not matter whether the Attorney General’s judgment reflected in the certification is ultimately determined to have been right or wrong: as long as the carrier acted pursuant to such a certification, national policy forbids a lawsuit. [emphasis AT&T’s]

Now compare their citation of 18 U.S.C. 2511(2)(a)(ii) with the actual statute.

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

Do you see the difference? AT&T has unilaterally rewritten "a person specified in section 2518(7) of this title or the Attorney General" to say "Attorney General or his designee." (And if you’re wondering, 2518(7) doesn’t say anything about "designees" either. Update: yes it does–though it specifies that they have to be investigative officers.) Read more

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Someone Doesn’t Want the Telecoms to Get Immunity

Because they’re leaking–and leaking big–to James Risen, Eric Lichtblau (and Scott Shane) again. Almost two years to the day since their first big scoop.

For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified. But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed.

In a separate N.S.A. project, executives at a Denver phone carrier, Qwest, refused in early 2001 to give the agency access to their most localized communications switches, which primarily carry domestic calls, according to people aware of the request, which has not been previously reported. They say the arrangement could have permitted neighborhood-by-neighborhood surveillance of phone traffic without a court order, which alarmed them.

I need to go hang at FDL for the book salon thread (come meet Bob Drogin!). Afterwards, I’ll come back and fill this thread out some.

One comment though: this story says the change came bc everyone went on fiber. David Kris has shown pretty persuasively that’s not true–the wire/air split wasn’t that different in 1978 when FISA was written. The difference, I suspect, is that now everything is digital. 

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.