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Yesterday, Twitter was aflutter with articles about how, due to successful legal action by the ACLU, the Justice Department released documents revealing a sharp increase in use by the government of "pen register" and "trap and trace" surveillance powers over the past couple of years. However, this revelation, which had many clutching their pearls, dealt "only" with surveillance of information about--rather than the contents of--communications; in other words, this kind of surveillance, which so many found disturbing, wasn't over the far-more-alarming actual communications. That's left up to the National Security Agency (NSA).

As we all know, Senators Wyden (D-OR) and Udall (D-CO) famously said:

It is a matter of public record that section 215, which is a public statute, has been the subject of secret legal interpretations. The existence of these interpretations, which are contained in classified opinions issued by the Foreign Intelligence Surveillance Court ("FISA Court") has been acknowledged on multiple occasions by the Justice Department and other executive branch officials. We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act.
Well, yesterday I Tweeted out the secret interpretation: the government has access to all third-party subscriber data on a scale far outside the plain language of 215.

The lack of response on Twitter surprised me.  I'm even more surprised by the lack of denial by the White House or Congress. Have we become that inured to the normalization of access by the government, in secret, to any and all of our multitude of transactions that are part and parcel of "business records"?

What is "third-party subscriber information" of yours that the government has access to without a warrant?

Your bank records with Sun Trust; your prescriptions with CVS; your Amazon account of what books you've ordered; all the library items you check out; Paypal transactions; all the movies you order from Netflix; your public transit records (including each and every single time--and where--you enter and exit from the subway); your E-ZPass records of where and when you are driving, your PeaPod grocery list items; all phone, TV, cable and Internet service providers (like AT&T, Verizon, Comcast, Cox, et al).

I cannot share my evidence of the secret interpretation.  But, as an example, the
Narus equipment in the AT&T building in San Francisco takes data off the fiber optic
lines in the US.  That's full reconstruction of data passing on these fibers.  This
includes all the e-mail, file transfers etc. passing between US citizens as well as
foreigners on these lines.  Plus, all the telcoms had to be given retroactive immunity
for providing customer data (estimates as high as 3 billion calls a day over 11 years
to date) to the government.  The collection of all this data is why they have to
build storage facilities like in Bluffdale, Utah, because they don't have the capability
to determine what information is important--so they just store it all.

But the MSM and blogosphere can certainly call the White House, Justice Department and Congress and ask for a denial.

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Comment Preferences

  •  It is mind boggling that a law can be (17+ / 0-)

    "secretly interpreted".

    Does not make sense. I just figure stuff is like "Enemy of the State" without all the bad guys getting caught.

    •  It used to be mindboggling (2+ / 0-)
      Recommended by:
      fuzzyguy, blueoasis

      Ever since the safeguards were put in place after the Nixon scandals lobbyists/ authoritys and gawd knows who else have worked to undermine them.

       Even during Bushs term I was not so much as mind-boggled as outraged. The gov. has done a propaganda job on public that has worked as well as anything done during WW2. It has taken so long to get this real info out that people have had time to realize they are seemingly powerless to reverse the course. While that is not true yet, we are close and it may only be the people trust of Obama that has stopped some people from reacting with more vigor. I see that as a reason to worry more as it becomes more deeply intrenched in our legal system.

      "the government's role should be to uplift, enlighten, educate and ennoble the citizen, not oppress them with taxation and intrusive laws," Gatewood Galbraith, Historic Marijuana Advocate, aka "The Last Free Man In America," RIP 1-3-12

      by SmileySam on Fri Sep 28, 2012 at 08:36:07 AM PDT

      [ Parent ]

  •  This is alarming and anyone who cares (14+ / 0-)

    about privacy should be paying attention. Once the government collects information without a warrant or proper oversight it can retrieve it at anytime.

  •  It would be nice if you could cite some evidence (1+ / 0-)
    Recommended by:
    stellaluna

    to back this up. I understand that you have been in this arena for a long time, but still, the bolder the statement the more the need for some citation.

  •  A couple of links (12+ / 0-)

    another article from ACLU on the topic of this post

    http://www.aclu.org/...

    NY Times on the Obama's free speech disconnect

    http://publiceditor.blogs.nytimes.com/...

    when the main stream media supports the 1%, citizens are not aware of what the government is doing

  •  I'm not sure I understand. (2+ / 0-)
    Recommended by:
    Nailbanger, blueoasis

    Are you saying access to third party subscriber information is available to the government without a Court Order or a warrant?  And that your evidence of that is a secret?  Because my experience as a criminal attorney is that all of the courts I practice in still require an Order or a warrant. Maybe you are talking about the secret Government spying. In which case it must be difficult for you that you can't provide the evidence.

    "Speak the TRUTH, even if your voice shakes."

    by stellaluna on Fri Sep 28, 2012 at 06:26:46 AM PDT

    •  Yes, I'm talking about secret Government spying. (6+ / 0-)

      And, yes, it is difficult for me that I can't provide the evidence.

      But I have too many clients currently being prosecuted under the Espionage Act for disclosing such kinds of information about government illegality.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Fri Sep 28, 2012 at 06:56:00 AM PDT

      [ Parent ]

    •  There seem to be two distinct dynamics at (3+ / 0-)

      work here . . .

      First, like you say, for evidence to be admissable in court, (so far) it generally has had to be obtained in a constitutional manner:

      Because my experience as a criminal attorney is that all of the courts I practice in still require an Order or a warrant.
      which does not at all preclude the government from collecting this information for other purposes (such as for making someone disappear via extraordinary rendition, for example . . .)
      •  Yes, I agree. But I think you also understand that (2+ / 0-)
        Recommended by:
        Roadbed Guy, FG

        it would be irresponsible to accept assertations of secret interpretations at face value. I don't have any problem with challenging the Goverment's authority and actually have done that all of my working life. Nor do I believe that the Government stays within the bounds of the law or what most of us consider our rights as citizens.  I do think though that assertations of super secret information that is sensational but completely unverifiable is irresponsible.  If that information was gained through representation of clients in legal proceedings it is also unethical in my opinion. While some may think this diarist is courageous for treading that line so thinly I don't.  I don't want to get into a discussion of the merits of this diarist's method or intentions because opinions are pretty divided about that. I would just caution people to take the same approach to insubstantiated allegations that they would if it were another public figure who has made their agenda known.

        "Speak the TRUTH, even if your voice shakes."

        by stellaluna on Fri Sep 28, 2012 at 07:28:23 AM PDT

        [ Parent ]

        •  Well, many of the same type of "where is the (8+ / 0-)

          evidence" objections WERE raised when the Bush Administration was doing this type of thing.

          And then when (probably only the partial) facts came out, the reality went well beyond even the more paranoid fantasies of those who were accused of being conspiracy theorists and worse.

          •  I'm not saying it isn't true. (1+ / 0-)
            Recommended by:
            Roadbed Guy

            And I'm all for aggressive investigation to find these things out. I do object to an attorney using her position to know things discovered during the course of litigation to make unverifiable allegations.  Everyday attorneys fight every day with a Government who tells the Court that defense attorneys aren't trustworthy enough to have access to information about the investigation into their client's alleged wrongdoing. When an attorney goes public with that information it just cements that belief in the minds of the Government and the Court. To cause that damage without enough proof or information to make the allegation a real issue is just immature and irresponsible in my opinion.

            "Speak the TRUTH, even if your voice shakes."

            by stellaluna on Fri Sep 28, 2012 at 07:53:13 AM PDT

            [ Parent ]

            •  Based on this (4+ / 0-)
              Recommended by:
              fuzzyguy, blueoasis, WheninRome, gerrilea
              Everyday attorneys fight every day with a Government who tells the Court that defense attorneys aren't trustworthy enough to have access to information
              it seems that we've long since become a completely non-democratic nation.

              Because, if the government has any amount (and in the case of the USA a HUGE amount) of secret information that it refuses to share with its citizens, from what I learned about democracy decades ago in school clearly indicates that we no longer have that form of government.

              •  You are absolutely correct Roadbed Guy. (3+ / 0-)
                Recommended by:
                Roadbed Guy, fuzzyguy, gerrilea

                Just because I disagree with the messenger and her methods in this case doesn't mean that I am not in total agreement. The only argument that I have with your conclusion is that for some segments of our society those "rights" you learned about in grammar school have always been illusory. It's only with the advent of the War on Terror and the possible application of those beliefs to middle class white people that the outrage has become demonstrably louder.

                "Speak the TRUTH, even if your voice shakes."

                by stellaluna on Fri Sep 28, 2012 at 08:17:31 AM PDT

                [ Parent ]

              •  It could be repealed by democratic process. (0+ / 0-)

                Just because you don't like the result doesn't mean it's not democracy.

                •  To clarify, I was taught that democracy (3+ / 0-)
                  Recommended by:
                  fuzzyguy, blueoasis, gerrilea

                  depends on "the citizen" having access to sufficient information to make informed electoral decisions.

                  In today's milieu (and probably more or less forever), the massive government secrecy that is currently afoot totally negates that concept.

                  And I seriously don't see any pathway whereby that can be corrected "by democratic process" - it's a classic catch-22 situation.

                •  I'd love to agree with you, really (0+ / 0-)

                  but we have secret evidence that we cannot reveal to you or your defense attorney's what it is so you must take our word for it.

                  That happened, if I recall correctly, with Gitmo "detainees".

                  This is not democracy or rule of law as defined by the constitution we agreed to.

                  Secret evidence, secret courts, secret interpretations are how every democracy in history has fallen into tyranny.

                  -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

                  by gerrilea on Fri Sep 28, 2012 at 06:18:16 PM PDT

                  [ Parent ]

              •  Any government, democratic or not, has secret (0+ / 0-)

                information.

            •  I agree that it would be unethical (1+ / 0-)
              Recommended by:
              blueoasis

              to reveal classified information obtained from the government during the course of defending a client who was being prosecuted for violating laws relating to national security. I agree that doing so would be inimical to the course of justice.

              I note, however, that Ms Radack's reference to non-public clients could be interpreted to mean her information was not obtained during the course of legal proceedings against the government on behalf of a client, which would mean she was not breaching a duty to the court by disclosing it, and would merely be violating the laws relating to classified information, so her actions would be criminal, but not necessarily unethical.

              " 'In this world, Elwood, you must be oh so smart or oh so pleasant.' Well, for years I was smart. I recommend pleasant. You may quote me." Elwood P. Dowd

              by paulbkk on Fri Sep 28, 2012 at 08:41:26 AM PDT

              [ Parent ]

        •  It would be irresponsible not to believe (8+ / 0-)

          that this is happening on many levels.  

          it would be irresponsible to accept assertations of secret interpretations at face value.
        •  If you have been paying attention, the (3+ / 0-)
          Recommended by:
          aliasalias, 2020adam, gerrilea

          conclusions are not surprising at all.

          That, in its essence, is fascism--ownership of government by an individual, by a group, or by any other controlling private power. -- Franklin D. Roosevelt --

          by enhydra lutris on Fri Sep 28, 2012 at 01:42:05 PM PDT

          [ Parent ]

    •  Questioners as this one should learn (4+ / 0-)
      Recommended by:
      blueoasis, skrekk, aliasalias, gerrilea

      more about the authors background. Once one does that the reason she is not naming names or showing doc.s becomes very clear. She has done her part and them some! Now it is up to us whit large.

      "the government's role should be to uplift, enlighten, educate and ennoble the citizen, not oppress them with taxation and intrusive laws," Gatewood Galbraith, Historic Marijuana Advocate, aka "The Last Free Man In America," RIP 1-3-12

      by SmileySam on Fri Sep 28, 2012 at 08:39:13 AM PDT

      [ Parent ]

  •  Thank you again for telling us what is going on. (8+ / 0-)

    After finding out that Wikileaks & Assange are now "enemies of the state", your reporting of their unconstitutional crimes could get ugly.

    Prayers and blessings to you.

    Jesselyn, how do we combat these things? I've written my Congress Critters and Senators, I've written letters to the editor (never published) and they send me their customary form responses.

    Are there not any legitimate Judicial employees that have read our damn constitution?

    If I ever found out that they were unconstitutionally collecting my information, I'd scream first and file as many charges as I could, but since it's secret, how do we prove they're doing it?

    Is it any wonder our government's approval ratings are at unprecedented levels?

    -7.62; -5.95 The scientists of today think deeply instead of clearly. One must be sane to think clearly, but one can think deeply and be quite insane.~Tesla

    by gerrilea on Fri Sep 28, 2012 at 06:34:07 AM PDT

    •  Except, of course, that they're *not* enemies of (0+ / 0-)

      state.

      Reference

      As usual, most of the reporting related to the assange case falls into compost-heap quality.  And gotta love the sensational spin in the initial report, too -- a document about a proposed charge against someone suspected of leaking data that didn't even mention Assange and which never even went to court got spun into "The US military thinks Assange is the same as al-Qaeda and plans to execute him".

      And anyone else here amused at the irony of using a document gotten from the Freedom of Information Act to argue that the US is keeping too many secrets?

  •  Response (11+ / 0-)

    The tweet might have gotten more response if people understood what third-party subscriber data means and if there were some concrete examples like the ones you gave in this diary.

    So we've gone way past the records of what books were taken out of libraries now.  I guess that should have been a clue that the govt. would want a lot more information about what people are reading, looking at and weirdly, what medicines they take. Of what use is prescription information?  

    Yet the head of the NSA says that dossiers are not being built on millions of Americans.

    And what the heck are they going to do with all of this data being Hoovered up and stored in the absurd data warehouse in Utah?

    And heck, don't we have a catastrophic debt problem? Should these ridiculous programs not be cut from the budget?

    Anyway, are they scooping up this information on everyone or just on the people who are on their lists?  What would be really useful is to know what lists are out there besides the no fly list, and who is on those lists.  


    "Justice is a commodity"

    by joanneleon on Fri Sep 28, 2012 at 06:34:55 AM PDT

  •  the most obvious interpretation... (9+ / 0-)

    ...is that there are multiple, eigenvalue-driven search algorithms -- the government equivalent of PageRank.  To work, such algorithms need a crapload of data, so associations can be pulled out.  Not only would it need everything it could get, you would not know whether something helped or hindered predictive power until you tossed it in the hopper.  The results would only be indicative in any case, so the pressure for more stuff to feed in would be constant.

    It seems unlikely that -- having created such a system, and given how well google works -- they would ever, ever give it up.

    ...j'ai découvert que tout le malheur des hommes vient d'une seule chose, qui est de ne savoir pas demeurer en repos dans une chambre.

    by jessical on Fri Sep 28, 2012 at 06:37:34 AM PDT

    •  Hmm, I'm puzzling over whether this (4+ / 0-)

      was typed ironically or mockingly:

      and given how well google works
      just saying, Google Ads sends me ads to contribute to Joe Arpaio, attend Celine Dion concerts, click to learn more about "clean coal" and so forth . . ..   (heh hehe hehe heh he ha)
      •  not the ads :} (4+ / 0-)
        Recommended by:
        Roadbed Guy, fuzzyguy, blueoasis, gerrilea

        Sort of like this:

        http://www.rose-hulman.edu/...

        It can work on anything.  It doesn't suck.  I'm badly off topic by replying, but my comment and followup are motivated by the thought that the idea of this bit of information or that bit -- whatever they are hoovering up this week -- doesn't address the likely process (in kind if not detail).  It is a process with a limitless appetite for anything that can represent association in like terms.  The bigger it is the more predictive, and also the more ways you can attempt to figure out what "like terms" means.

        But most importantly, no one kind of information is going to be all you would need to draw a picture, or seen as particularly important.  Its all important, and more now please, would be the likely outcome of such a ranking system.

        ...j'ai découvert que tout le malheur des hommes vient d'une seule chose, qui est de ne savoir pas demeurer en repos dans une chambre.

        by jessical on Fri Sep 28, 2012 at 08:33:38 AM PDT

        [ Parent ]

        •  Ooohhh so it's more like "The Matrix" ! (3+ / 0-)
          Recommended by:
          jessical, fuzzyguy, gerrilea

          or, at least they're involved.

          In any event, Facebook is big into this type of thing as well - but apparently mostly focusing on data that people voluntarily supplied (albeit not for social engineering purposes per se . . .) so it's a tad more difficult to get worked up about that.

  •  We've known about this for awhile, haven't we? (0+ / 0-)

    We know there's no 4th am standing for a customer to object to searches of a company's business records, and I thought it was already known that part of the national security legal landscape is that administrative subpoenas are common fare.  

    Not to diminish the importance of these issues, but is there anything new here that I'm not understanding?  Or are you reemphasizing the issues that we've known about?

    •  New info. that 215 covers 3d party subscriber data (9+ / 0-)

      WITHOUT a warrant or Court Order.  Or even a National Security Letter. Medical records and bank records are protected by various privacy laws. This overrides them.
      Telecoms have been granted immunity for providing info. on their customers illegally, which has now been retroactively authorized by the FISA Amendments Act.

      My book, TRAITOR: THE WHISTLEBLOWER & THE "AMERICAN TALIBAN," is Amazon's #1 Best Seller in Human Rights Books for February 2012.

      by Jesselyn Radack on Fri Sep 28, 2012 at 07:03:52 AM PDT

      [ Parent ]

      •  Come back when you have some shred (0+ / 0-)

        of evidence to support your assertions.

        Here's my take on it - the revolution will not be blogged, it has to be slogged. - Deoliver47

        by OIL GUY on Fri Sep 28, 2012 at 07:14:01 AM PDT

        [ Parent ]

      •  Thank you for reporting this, Jess (8+ / 0-)

        In the current environment, that takes real courage.

        I have noticed, in the Privacy Statements one receives at medical offices and banks, that they always include a homeland security exception.  Never was sure where that came from.  Could those be referring to 215?

        Speak the truth, but ride a fast horse.

        by Deep Harm on Fri Sep 28, 2012 at 07:23:45 AM PDT

        [ Parent ]

      •  They'd just need an administrative subpoena, (0+ / 0-)

        which isn't a warrant or court order.  

        Sounds like nothing new under the sun here.

      •  Odd.... (2+ / 0-)
        Recommended by:
        aliasalias, gerrilea

        Just a little while ago I ran across this poll on the Yahoo home page (scroll down and look to the right) that I thought is one of the oddest poll question I've read in a very long time (usually the poll questions are about something stupid like a person on a reality show or the like):

        Is the Constitution still relevant?
            Yes, it's stood the test of time.
            No, it's too outdated.
        The poll is sponsored by the National Constitution Center.

        Then I come here and read this.  [Actually, I always thought there was a heckuva LOT more to do with secret spying than 43's screaming he could authorize a wire tap on his say-so without a warrant.  What you're writing in this post doesn't surprise me; it pisses me off, but it's not surprising.  I'm old and jaded, and I haven't believed anything about the government has been "innocent" or on the up-and-up for a very long time.]

        So..., with this little whisper of "changing the constitution" just sort of "out there" in cyberspace....  What next?  Will some doofus in Congress actually suggest changing the constitution... to include things like giving a president absolute dictatorial power by fiat, only changing the constitution to make it legal?  Suggesting we permit all this secret spying "because the ter'rist boogeymanzzz are coming to get us?"  [That false logic made lots of people think the Patriot Act was just hunky dory, as well as the later FISA fiasco '08, which Obama voted for.  Fools.]

        It's probably nothing, but I just find the coincidence a bit... curious.

        I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

        by NonnyO on Fri Sep 28, 2012 at 11:44:02 AM PDT

        [ Parent ]

        •  why bother changing the Constitution to give (3+ / 0-)
          Recommended by:
          NonnyO, gerrilea, Don midwest

          dictatorial power to a President, how is that power doesn't exist already when a President can order anyone detained indefinitely, and order the death of anyone anywhere, all without oversight by any branch of government, or thru informed consent of the governed?

          without the ants the rainforest dies

          by aliasalias on Fri Sep 28, 2012 at 02:20:12 PM PDT

          [ Parent ]

          •  I know, right...? (2+ / 0-)
            Recommended by:
            gerrilea, aliasalias

            The president's duties and responsibilities are laid out very clearly in the Constitution.  Or, it's clear to me.

            Dictatorial power is not granted to a president under the current constitution..., Dumbya and Dickie's power grab notwithstanding.  Their actions were clearly unconstitutional and illegal..., and it's galling that no one stopped them in their tracks right then.  Congre$$ always acted like they were appeasing a toddler throwing a temper tantrum in the middle of a store aisle or in church, so they gave him anything he wanted to get him to STFU and stop embarrassing all of us with his bad grammar and malapropisms and inability to utter a coherent sentence.  People who are far better at it than me (or masochistic) had web sites itemizing his lies, and only partway through his eight years he had about a thousand at one point.  I don't know if anyone left those web sites up, but I hope they did.  (One might have been the Vets for Peace; they were incensed with Conyers and confronted him for not going through with the impeachment proceeding he'd talked about before the '06 election.)

            In other words, WE know Julian Assange hasn't released any documents that we are not entitled to know about because they were not super-duper top secret documents in the first place.  Most of what Dickie and Junior declared Secret or Confidential were technically not; they just wanted a way to pursue anyone they could label an "enemy."

            Just like they are doing to Julian Assange now.

            Pisses me off.

            I'm sick of attempts to steer this nation from principles evolved in The Age of Reason to hallucinations derived from illiterate herdsmen. ~ Crashing Vor

            by NonnyO on Fri Sep 28, 2012 at 04:44:02 PM PDT

            [ Parent ]

  •  Catch 22 (6+ / 0-)

    Heller was prescient--"They can do anything you can't keep them from doing".

    I vividly remember Yossarian's exchange with the old woman in the vacant whorehouse about why the girls were taken away.  It was "the law".  Yossarian asked, "What law?".  

    "A secret law".

  •  I'd love to read the linguistic gymnastics DOJ... (2+ / 0-)
    Recommended by:
    gerrilea, Don midwest

    utilizes to get around the law's requirement of judicial or magisterial oversight. Ditto the prohibition against investigating purely first amendment activity.

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