Al Gore: NSA Surveillance Violates The Constitution Updated

[ProSense]

61. The SCOTUS may decide the program is unconstitutional, but

there is a strong chance they may side with the Government.

In a country where surveillance has been part of the fabric of law enforcement and national security, with the acknowledgment that it's a necessity, the debate is about how to do it while protecting Americans, classified information and the Constitution.

Subsequent to the Smith v. Maryland decision came the Electronic Communications Privacy Act
http://www.democraticunderground.com/10023013882

The Clinton administration had to deal with these issues.

Statement of The Electronic Frontier Foundation
Before the Subcommittee on the Constitution
of the Committee on the Judiciary
United States House of Representatives
The Fourth Amendment and Carnivore
July 28, 2000

The Electronic Frontier Foundation (EFF) would like to submit comments to be included for the record regarding the Fourth Amendment and the issues raised by the FBI's Carnivore system.

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The Carnivore system has received a lot of press recently, but the FBI has not been forthcoming about how the Carnivore system actually works. Civil liberties groups have often been quoted as noting that Carnivore is a "black box" leaving us to guess at its inner workings.

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Second, analogizing pen register information from a traditional land-line phone system to the Internet is incorrect. The Carnivore system likely can capture content as well as numbers. Email addresses for example are personal to an individual rather than to a particular household. We don't know for sure, but it is possible that Carnivore has access to the subject line information of email messages. Subject lines are content. For example, "leaving work at 5pm today - meet me at the bus stop", contains a lot of information about travel plans of a target on a particular day. Carnivore can also track other content information such as the URLs of web sites visited. Seeing the URLs not only give routing information but content as well. For example, someone visiting www.eff.org could presumably be interested in civil liberties issues online.

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Currently, there is little if any public oversight over the FBI's use of its Carnivore system. The FBI has not allowed the ISP to inspect the device, nor have any of the advocacy groups been allowed to examine it. In fact, the ACLU has had to resort to filing a FOIA request to try to get at the source code. Allowing the FBI to install and use a device such as this unchecked by any public oversight, threatens the openness we enjoy and expect in our society. Robert Corn-Revere, in his testimony, noted that his case is sealed. We can't even look to that for guidance.

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http://w2.eff.org/Privacy/Surveillance/Carnivore/20000728_eff_house_carnivore.html

FBI Still Hunting With Carnivore

By Margret Johnston, PCWorld
Oct 20, 2000 7:00 AM

The U.S. Federal Bureau of Investigation is still developing its Carnivore Internet surveillance tool, according to FBI documents obtained by the Electronic Privacy Information Center through a Freedom of Information Act lawsuit.

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EPIC filed the FOIA lawsuit after the FBI earlier this year revealed the existence of Carnivore. The lawsuit seeks the public release of all FBI records concerning Carnivore, including the source code, other technical details, and legal analyses addressing the potential privacy implications of the technology. The source code of the Carnivore system was withheld in the first batch of documents (see "Does Carnivore Eat Privacy Rights?&quot .

Carnivore has outraged not only EPIC, but also the American Civil Liberties Union and some members of Congress. The FBI has used it in at least 25 criminal and national security investigations, according to the FBI, which maintains the system is legal.

The documents in EPIC's hands also confirm that Carnivore was conceived under the name Omnivore in February 1997. It was proposed originally for a Solaris X86 computer. Omnivore was replaced by Carnivore running on a Windows NT-based computer in June 1999. Other parts of the documents include reviews of tests for performance, and recovery from attacks and crashes for both Omnivore and Carnivore. Carnivore consists of a PC running Windows and proprietary software.

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http://www.pcworld.com/article/32664/article.html

Group Objects to F.B.I. Release of Carnivore Information

ASHINGTON -- A civil liberties group objects to how the FBI plans to release to the public some of the 3,000 pages of documents describing its ``Carnivore'' e-mail surveillance system.

The group says the schedule laid out by the government is too open-ended.

The Justice Department told a federal judge Wednesday that the FBI had located 3,000 pages in response to a Freedom of Information request and lawsuit by the group, the Electronic Privacy Information Center, which asked for every document the FBI has describing the computerized system that has raised an uproar among civil libertarians and in Congress.

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At her weekly news conference Thursday, Attorney General Janet Reno declined to predict how long the entire process might take. ``There's some 3,000 pages that we have got to go through, and we want to do it as expeditiously as possible but we want to do it properly,'' she said.

http://partners.nytimes.com/library/tech/00/08/biztech/articles/18carnivore.html

Major University to Be Asked to Review F.B.I.'s 'Carnivore'

ASHINGTON, Aug. 10 -- The Justice Department will ask a major university to review a government e-mail surveillance program that is seen as both a great boon to law enforcement and a serious threat to the people's privacy.

Attorney General Janet Reno said the program, used by the Federal Bureau of Investigation and dubbed "Carnivore" because it can quickly gobble up and digest huge quantities of e-mail messages, will be studied in depth, and that the university's recommendations will be shared with the public.

"The university review team will have total access to any information they need," Ms. Reno pledged.

Top Justice Department officials will work with the university representatives and seek comment from law enforcement and privacy experts, Ms. Reno said. She will weigh the results before the department determines how Carnivore will be used in the future.

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http://partners.nytimes.com/library/tech/00/08/biztech/articles/11cnd-carnivore.html

'Carnivore': FBI's Internet Wiretaps Raise Privacy Concerns
http://www.commondreams.org/headlines/071200-03.htm

After prolonged negative coverage in the press, the FBI changed the name of its system from "Carnivore" to the more benign-sounding "DCS1000." DCS is reported to stand for "Digital Collection System"; the system has the same functions as before. The Associated Press reported in mid-January 2005 that the FBI essentially abandoned the use of Carnivore in 2001, in favor of commercially available software, such as NarusInsight (a mass surveillance system).[7]

http://en.wikipedia.org/wiki/Carnivore_(software)#Controversy

This is a situation in which a balance has to be struck between Constitutionality, national security, privacy and the need to know.

It's not a cut-and-dry issue like gay rights or voting rights. Equality period!

Report: Yahoo Challenged PRISM In 2008
http://www.democraticunderground.com/10023015163

Also, think about the current SCOTUS. There is a strong chance that the SCOTUS will side with the Government.

CLAPPER, DIRECTOR OF NATIONAL INTELLIGENCE, ET AL. v. AMNESTY INTERNATIONAL USA ET AL.
http://www.supremecourt.gov/opinions/12pdf/11-1025_ihdj.pdf

Court Challenge To NSA Surveillance Programs Moves Forward
http://www.democraticunderground.com/10023009232

If the Court decides the program is unconstitutional, then Congress is going to act at some point to find the right balance, and everyone knows the sausage-making process involved in writing and passing laws.

Senators: End Secret Law
http://www.democraticunderground.com/10022993363

Here's the text of Alan Grayson's Mind Your Own Business Act

AMENDMENT TO THE RULES COMMITTEE PRINT
OF H.R. 1960
OFFERED BY MR. GRAYSON OF FLORIDA
Page 432, after line 21, insert the following:

SEC. 1065. LIMITATION ON AVAILABILITY OF FUNDS FOR INFORMATION GATHERING ON CITIZENS OF THE UNITED STATES WHILE LOCATED IN THE UNITED STATES WITHOUT PROBABLE CAUSE.

(a) PROHIBITION.—None of the funds authorized to be appropriated or otherwise made available to the Department of Defense for fiscal year 2014 or any succeeding fiscal year may be used to collect any information generated by a citizen of the United States while located in the United States, including telephone records, internet records, and physical location information, without probable cause of a terrorism offense or an offense within the jurisdiction of the Uniform Code of Military Justice related to action or conduct by that citizen.

(b) UNITED STATES.—In this section, the term ‘‘United States’’ means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

http://amendments-rules.house.gov/amendments/GRAYSO_13461113220425425.pdf