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What the Ashcroft “Hospital Showdown” on NSA spying was all about How the government sought to justify blanket collection of Internet metadata.

We’ve known for years that the STELLAR WIND surveillance program—a massive NSA effort authorized by President George W. Bush after 9/11—eventually led to a dramatic showdown at the bedside of then-attorney general John Ashcroft. The situation surrounding STELLAR WIND was on such shaky legal ground that top members of the government threatened to quit in protest, though the exact reasons for their unease have been difficult to pinpoint.

Now, documents leaked by Edward Snowden have finally given us a clearer idea of what that showdown was really about: the wholesale collection of Internet metadata.

It appears that the meta data issue has been bouncing around through two different presidential administrations and that it is not as cut and dried and issue as people like Dianne Feinstein would have us believe. The public was aware of the showdown in John Ashcroft's hospital room involving Alberto Gonzales and James Comey, the then acting AG and now Obama's nominee for FBI director. There weren't enough details available until now to understand what the fight was all about.

One of the issues involved here is the difference between telephone and internet meta data. One of the first of Snowden's documents to be published was the order to Verizon to provide telephone meta data. It has been possible to construe phone records as legal to obtain without a warrant because they don't reveal the content of the conversations.

Internet metadata, however, would have been trickier. To see why, it’s important to understand how the Internet works differently from the phone network. When the phone company connects a call on a traditional circuit-switched phone network, it naturally has to know which two numbers it is connecting and for how long. That's pretty much the sum of the relevant metadata.

But that’s not how a packet-switched network like the Internet functions. Packets of Internet information don’t just consist of “metadata” and “content” but of many levels of metadata at different “layers” of the OSI stack familiar to techies. The many computers or programs involved in routing and processing that data typically only need to “look” at one or two of those layers to do their job. Especially if it’s just routing traffic from one foreign computer to another—traffic that just happens to be passing through the United States because that’s the cheapest path—the company running an Internet backbone doesn’t need to “see” or make any record of, for example, who is supposed to receive a particular e-mail or what webpage a user is trying to browse.  

The problem came down to the fact that the collection of phone records wasn't electronic surveillance as defined by FISA, but the collection of internet records was. Lawyers for the Bush White House tried various devices to evade the problem. They tried to use the vague wording of the Patriot Act to superseded FISA  but the lawyers at DOJ wouldn't sit still for it and threatened to resign.  

After the big showdown the administration got legal cover for its activities by going to the FISA and getting a blanket order defined as "pen register". The collection of phone records continues today. Supposedly the collection of bulk internet data was halted in 2011. Nobody seems very clear about what is happening at present.

What this little piece of recent history seems to offer is a look at the problems of applying laws that go back 40 years to the realities of rapidly changing technology. Even if the issues were being debated in open court and open congressional hearings it would be difficult for the law to keep up with the technology. When debate is conducted in secret there is no possibility of accountability.  

h/t and thanks for the link to KnKo.

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Comment Preferences

  •  Thank you for this! n/t (7+ / 0-)

    Internet metadata also gives location specific information, ie IP address, and the page requested.  So with metadata, you can see that the house on 23 Main St requested an image from  This is information that can easily be used to coerce a congressperson to vote a certain way.

  •  THe other issue with locked in categories of data (1+ / 0-)
    Recommended by:
    Richard Lyon

    as  private versus others not is that the ability to use data changes

    The idea that its static allows for abuse

    •  There needs to be a data bill of rights. n/t (2+ / 0-)
      Recommended by:
      lysias, Praxical
      •  President Obama recommended a comphrensive (1+ / 0-)
        Recommended by:
        Richard Lyon

        form in the private sector but it was (1) watered down (2) preempted stronger state laws and (3) did not allow private

        There is also no public sector equivalent.

      •  private = private right of action (0+ / 0-)

        which means individuals can sue rather than a regulatory agency or some other governmental authority

      •  Or an expansion of the 4th Amendment (1+ / 0-)
        Recommended by:

        Right now, the legal definition appended to the Fourth Amendment ("The right of the people to be secure in their persons, houses, papers, and effects . . .") doesn't seem to include computer use and data under the blanket word "effects."

        Certainly there is a long legal history of unreasonable searches of the people's "person" or "house" or "papers" and what those terms mean. But that last word, "effects," must be interpreted to include something that can be secured against unreasonable searches not included under the three prior terms. Otherwise, why list the word "effects" if what is meant by that word is totally covered by "persons" "houses" and "papers"?

        The Supreme Court has ruled on challenges of searches of people's cars, luggage, clothing, bodily fluids and so forth, and found that violation of that security has to be attended by probable cause. Drift net datamining of a person's computer and cell phone usage would seem to be a proper fit under the Fourth Amendment term "effects."

        The cops can't go through a person's car just because it was manufactured by Ford or through a suitcase because it was assembled by the good people at Samsonite. Just because one's internet or cell phone service provider caches the information a citizen generates, I think it's reasonable to expect that what I do in those venues is my business, and absent probable cause is none of the government's business, just like landline telephone calls weren't to be wiretapped without a showing of probable cause. And I say that even though "everybody knows" that what you say and do online is totally out in the open due to the nature of the internet. I'll say "everybody" is wrong.

      •  Yep. Or amend the 4th amendment to include (0+ / 0-)

        "...and non-publicly available information provided to or obtained by individuals, entites, or any other non-governmental organization."  Or something along those lines.  

        It was completely reasonable to assume that anything sent by telegraphy was not private, because anyone with two wires and a soldenoid could tap into the lines.

        It was less reasonable, but still within the realms of 'not utter bullshit' to allow pen registers to be searched, but this was before computers, where no agency could request "all your data" because it was completely nonsensical to think that a company would hand copy or even print out all that crap, every day, and mail it to some agency.  There was an intrinsic limit.

        Now, basically, every single communication is technically non-private that doesn't go through the US Postal Service.  And that's Utter Bullshit.  

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