Can someone please explain how the NSA Slurp and Burp doesn't violate wiretap law?

[hootinholler]

Bear with me here a minute, I think it's important.

We know from Andrea Mitchell's interview of Clapper that it is not just metadata that is being slurped up by the NSA. How much is held remains to be proven, but at this point we know with certainty there is some call content being stored for future reference.

The relevant bits of the interview:

JAMES CLAPPER:

First-- as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked-- "When are you going to start-- stop beating your wife" kind of question, which is meaning not-- answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.

And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers-- of those books in that metaphorical library-- to me, collection of U.S. persons' data would mean taking the book off the shelf and opening it up and reading it.

ANDREA MITCHELL:

Taking the contents?

JAMES CLAPPER:

Exactly. That's what I meant. Now--

ANDREA MITCHELL:

You did not mean archiving the telephone numbers?

JAMES CLAPPER:

No.

I Still am astounded at the notion of collection he has. I don't think that word means what he thinks it means, he has confirmed that someone somewhere has call content collected(my definition) waiting to be "collected&quot his definition).

How on earth this scheme doesn't run afoul of wiretap laws is beyond me. Maybe the secret warrant covers it, but where is the probable cause to precollect everything?

Wiretapping Law Protects "Oral," "Wire," and "Electronic" Communications Against "Interception"

Before 1967, the Fourth Amendment didn't require police to get a warrant to tap conversations occurring over phone company lines. But that year, in two key decisions (including the Katz case), the Supreme Court made clear that eavesdropping — bugging private conversations or wiretapping phone lines — counted as a search that required a warrant. Congress and the states took the hint and passed updated laws reflecting the court's decision and providing procedures for getting a warrant for eavesdropping.

BTW, That's really odd that it wasn't against the law for cops to listen in. Do we need a privacy amendment? Sorry, It continues...

The Wiretap Act requires the police to get a wiretap order whenever they want to "intercept" an "oral communication," an "electronic communication," or a "wire communication." Interception of those communications is commonly called electronic surveillance.

An oral communication is your typical face-to-face, in-person talking. A communication qualifies as an oral communication that is protected by the statute (and the Fourth Amendment) if it is uttered when you have a reasonable expectation that your conversation won't be recorded. So, if the police want to install a microphone or a "bug" in your house or office (or stick one outside of a closed phone booth, like in the Katz case), they have to get a wiretap order. The government may also attempt to use your own microphones against you — for example, by obtaining your phone company's cooperation to turn on your cell phone's microphone and eavesdrop on nearby conversations.

A wire communication is any voice communication that is transmitted, whether over the phone company's wires, a cellular network, or the Internet. You don't need to have a reasonable expectation of privacy for the statute to protect you, although radio broadcasts and other communications that can be received by the public are not protected. If the government wants to tap any of your phone calls — landline, cellphone, or Internet-based — it has to get a wiretap order.

An electronic communication is any transmitted communication that isn't a voice communication. So, that includes all of your non-voice Internet and cellular phone activities like email, instant messaging, texting and websurfing. It also covers faxes and messages sent with digital pagers. Like with wire communications, you don't need to have a reasonable expectation of privacy in your electronic communications for them to be protected by the statute.

Can someone please explain to me how this NSA Slurp and Burp program is legal? Or is that reason a State Secret?

[PSPS]

1. It can't be explained because it isn't legal. Well, unless...

The worshipers and apologists hang their flimsy spinning hat on the hook that, you see, it is all just fine and dandy because there are "secret laws" with "secret interpretations" approved by a "secret court" in which only one side (the NSA) appears. Throw in a modern version of Nixon's famous "if the president does it, it isn't illegal." And if that isn't enough to convince you, they throw in one or more items from their Hit Parade:

1. This is nothing new
2. I have nothing to hide
3. What are you, a freeper?
4. But Obama is better than Christie/Romney/Bush/Hitler
5. Greenwald/Flaherty/Gillum/Apuzzo/Braun is a hack
6. We have red light cameras, so this is no big deal
7. Corporations have my data anyway
8. At least Obama is trying
9. This is just the media trying to take Obama down
10. It's a misunderstanding/you are confused
11. You're a racist
12. Nobody cares about this anyway / "unfounded fears"
13. I don't like Snowden, therefore we must disregard all of this
14. Other countries do it

[Igel]

2. He was asked if they collected data.

He said no.

He said that he considered data collection to be collecting the content of phone calls. Wyden might have considered it to be collecting the outside of the book.

If you think that collecting the Dewey Decimal #--the telephone number and a bit more--is "data collection," he's saying he didn't answer properly. If you consider data collection as collecting the content of the phone calls, then no, they don't.

He has a lot of dysfluencies.

First, he sets up his metaphor.

A metaphor I think might be helpful for people to understand this is to think of a huge library with literally millions of volumes of books in it, an electronic library. Seventy percent of those books are on bookcases in the United States, meaning that the bulk of the of the world's infrastructure, communications infrastructure is in the United States.

There are no limitations on the customers who can use this library. Many and millions of innocent people doing min-- millions of innocent things use this library... So the task for us in the interest of preserving security and preserving civil liberties and privacy is to be as precise as we possibly can be when we go in that library and look for the books that we need to open up and actually read.

... So when we pull out a book, based on its essentially is-- electronic Dewey Decimal System, which is zeroes and ones, we have to be very precise about which book we're picking out. And if it's one that belongs to the-- was put in there by an American citizen or a U.S. person.

We ha-- we are under strict court supervision and have to get stricter-- and have to get permission to actually-- actually look at that. So the notion that we're trolling through everyone's emails and voyeuristically reading them, or listening to everyone's phone calls is on its face absurd. We couldn't do it even if we wanted to. And I assure you, we don't want to.

...

Next, the Question:

Can you explain what you meant when you said that there was not data collection on millions of Americans?

First-- as I said, I have great respect for Senator Wyden. I thought, though in retrospect, I was asked-- "When are you going to start-- stop beating your wife" kind of question, which is meaning not--
answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful, or least untruthful manner by saying no.

And again, to go back to my metaphor. What I was thinking of is looking at the Dewey Decimal numbers-- of those books in that metaphorical library-- to me, collection of U.S. persons' data would mean taking the book off the shelf and opening it up and reading it.
=============

So he says what he means by data collection. Getting the metadata and using it as a guide to finding the contents of the call. Then in response to the question, Are you collecting Americans' data? he answers, "No."

[hootinholler]

4. Do you really mean:

" Getting the metadata and using it as a guide to finding the contents of the call"

Because it's having the content available when the book is selected is what I think would be breaking the law.

[RobertEarl]

3. It's legal cause Bush said so

I figure there are two data banks.

One is the mass collection of all communications. A constant sweep of all activity.

Second is the metadata from the phone companies and ISPs..

They look at the metadata and using the numbers found therein, go to the first data bank of all communications and begin listening to all communications under that number.

It's all legal because Bush said so. Apparently, Obama agrees.

[woo me with science]

5. I read about one possible weasel legal move,

that is so outrageous that you wonder if even the most brazen authoritarian would have the shamelessness to attempt it, since it clearly violates both the letter and spirit of the US Constitution.*

Here it is, in this article about the "collect it all" mentality:

http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-flap-extends-to-contents-of-u.s-phone-calls/

AT&T and other telecommunications companies that allow the NSA to tap into their fiber links receive absolute immunity from civil liability or criminal prosecution, thanks to a law that Congress enacted in 2008 and renewed in 2012. It's a series of amendments to the Foreign Intelligence Surveillance Act, also known as the FISA Amendments Act.

That law says surveillance may be authorized by the attorney general and director of national intelligence without prior approval by the secret Foreign Intelligence Surveillance Court, as long as minimization requirements and general procedures blessed by the court are followed.
A requirement of the 2008 law is that the NSA "may not intentionally target any person known at the time of acquisition to be located in the United States." A possible interpretation of that language, some legal experts said, is that the agency may vacuum up everything it can domestically -- on the theory that indiscriminate data acquisition was not intended to "target" a specific American citizen.

Director of National Intelligence Michael McConnell indicated during a House Intelligence hearing in 2007 that the NSA's surveillance process involves "billions" of bulk communications being intercepted, analyzed, and incorporated into a database.

The bolded part suggests that they might argue, in perfect Orwellian fashion, that it's "legal" precisely because of what makes it unconstitutional.



*Yeah, they'll do it. At this point they are pretty much giving the nation the finger while they shred the Constitution.

[RobertEarl]

9. Yep. There it is. The Loophole.

Another one was that all fiber connections were actually routed over Canadian or Mexican borders, thereby allowing those connections to be labeled as foreign connections.

[jmowreader]

10. Where the communications are coming from doesn't matter

If you, a U.S. national, pick up a phone in London and call me, a U.S. national, on a phone in Tokyo, we're still U.S. nationals.

[RobertEarl]

12. How do they know you are a USian?

They listen in and recognize your voice? You say all good USisan things?

Or does your number pop up on a screen and it tells them who you are?

[jmowreader]

17. Speaking English is one of the ways

After a while you get a sixth sense about this...and if your guy is the least bit questionable you stop coverage.

[hootinholler]

20. Are you seriously suggesting that we have replaced the constitution

With a sixth sense somehow embodied in analysts?

[jmowreader]

30. No.

Analysts have a LOT of experience and training in target identification. And they're not the final arbiter.

Once you've been working a target for a while, you get a good general feel for what ISN'T what you're looking for, or what you're allowed to look for. And if something feels wrong, you don't try collecting on it, or think about collecting on it. If you feel that you've got a good target when you're in a situation where illegal-to-collect ones abound, you have to go through a lot of layers of bureaucracy and several signoffs to get approval to collect on the guy - and you have to prove almost without even the shadow of a doubt you're legally entitled to collect.

The standard for putting a target on collection is higher than the standard for putting someone in prison. The standard for not putting a target on collection is not nearly as high.

[AnotherMcIntosh]

6. This was explained before.

[HumansAndResources]

7. Perhaps our Congress-critters could pass this law ...

Phone companies may keep customer records no longer than 30 days after a bill is paid.
Such records must be destroyed - rendered non-recoverable by any known technology.
Retaining and/or transfering phone-records to other parties, absent a pre-existing legal warrant issued for that specific number, shall be a felony-offense.
Phone-billing services may not be "outsourced" to other countries to ensure American's privacy is not violated by nations where this law is not applicable.

Yes, I am dreaming. Congress doesn't work for "us" - they work for those who pay for their campaigns.
I miss Dennis Kucinich - he might have sponsored legislation like this.

[Thinkingabout]

8. First one must understand what wiretapping involves and understand what collecting phone call record

Once you really understand each it would nit be hard for a simple thinker to realize whether they are legal. Do the research to understand what exactly wiretapping involves.

[DisgustipatedinCA]

23. Thanks for speaking out on behalf of simple thinkers. And simple spellers, too.

[Thinkingabout]

24. Oh wow, seems like simple thinker can even get the message with typo, guess everyone can't be

perfect.

[jmowreader]

11. Clapper's definition of collection is what the intelligence community uses

Recording and storing the content of a communication is collection. What the Prism program is doing, unless a warrant is obtained, isn't collection.

[RobertEarl]

13. If you feel more government is better

Just ask the Germans what they think.

This anti-wiretap feelings = Somali is a load of bs.

[jmowreader]

15. I think we're answering different questions

And that's alright, I guess, but Clapper defined collection, a term that to a SIGINTer has an extremely narrow meaning, in the way spooks define it...and got razzed for it.

Collection, to those of us who have graduated from intel school, is the recording and retention of the contents of a communication. It is nothing else.

[RobertEarl]

28. Collection of contents

""Collection, to those of us who have graduated from intel school, is the recording and retention of the contents of a communication.""

Thanks, you have just affirmed that collection is recording content. meaning what was said.

So the pull that collection off the shelf and listen!

[Life Long Dem]

18. Sorry but Government is not bad

Repubs think like that - Gov bad. I don't know how we can trust any Repub running the Government like Bush. Who makes a good example of a give a shit attitude in regards to Government.

[hootinholler]

21. That is not what Clapper said

He said collection is accessing it after it is stored.

[jmowreader]

22. Clapper's metaphor was real twisted

He would have been better off not using metaphors:

"First, we get a list of all the phone calls made in the US on any given day. We use a very fast computer to compare that list to another list we have, that has the phone numbers of people associated with terrorists on it. If someone not on that list makes several calls to someone that's on it, or several people that are on it, the computer will alert an analyst, a person skilled in working against terrorists. The analyst will decide whether a person might be what we call a 'person of interest,' and whether we should step up our efforts against that person."

"And what would those efforts be?"

"If we have determined that a person is working with terrorists, we can apply for what's called a FISA warrant. FISA means the Foreign Intelligence Surveillance Act. Once we have that, we can record their phone calls, listen to them and find out what they're doing, a process that we call collection."

"Are there any safeguards to ensure you're not conducting collection against Americans?"

"Yes. After President Nixon resigned, there were many safeguards put in place to ensure the American intelligence community isn't spying on Americans. The standards we work under are very high. We use the same criteria - beyond a reasonable doubt - when we decide to collect against someone."

Better that than the library metaphor, which I'm sure has current NSA guys sitting there going "what the fuck?"

[hootinholler]

27. So you are saying this is what he should have said?

Still, the collection before the warrant is happening. I'm not objecting to them looking at it with a warrant, I'm objecting to them recording it before there is a warrant.

Clapper isn't the only one who has either stated this is done or implied it is done.

[Warren DeMontague]

14. still waiting to hear the justification for the patriot act being used mainly to arrest pot smokers.

...

[Life Long Dem]

16. Do you understand we already knew about NSA collecting phone records?

NSA has massive database of Americans' phone calls
Updated 5/11/2006 10:38 AM ET

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

more... http://usatoday30.usatoday.com/news/washington/2006-05-10-nsa_x.htm

But Clapper lied.

[quadrature]

19. ill gotten gain, can't be used in court ...

other than that,
it is open season,
for everybody,
on everybody

[limpyhobbler]

25. The best argument for how it can be legal, is they have FISA court warrants for it.

In my opinion the warrants themselves are illegal because they exceed the authorities granted the Patriot Act and the FISA Amendments Act. Since the warrants are illegal, the "collection" (by either definition of the word) is illegal. Not only is it illegal, but it's unconstitutional under the 4th amendment requirement for specific warrants, and implicit prohibition on general warrants that target mass numbers of people.

And these constitutional law professors agree.
http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html

It's fairly pathetic that we have sunk so low that we are falling back on the Patriot Act as an expression of sanity relative to the snooping actions of the government today.

[Purveyor]

26. All I can damn well guarantee you, this will be a major issue come the 2014 elections and somebody

best work this one out before election day.

[RobertEarl]

29. NSA spying is a republican baby

Had the democrats even suggested it be aborted, Rove and Cheney would have thrown a party!