AmerikanerI

Amerkaner I

Published on Thursday, March 6, 2008
            by CommonDreams.org

        Halting Illegal Spying on Americans
         by Bruce I. Afran and Carl J. Mayer

Almost seven years after the September 11, 2001 attacks, mainstream media and
Congressional Democrats are finally beginning to defy President Bush’s illegal and
unconstitutional program of spying on Americans.

During an astounding press conference on February 28, 2008, President Bush was
jarred by the veteran and habitually-reserved CBS correspondent, Bill Plante, who
asked point blank: “I know it’s unintended to spy on Americans, but in the collection
process information about everybody gets swept up and then it gets sorted. So if
Americans don’t have any recourse, are you just telling them when it comes to their
privacy to suck it up?”

Stunned by the question, Bush delivered a condescending non-sequiter: “I
wouldn’t put it that way, if I were you - in public. You’ve been around long enough.”
(The President never disputed Plante’s premise that everyone’s information is
vacuumed up by the government.)

Visibly angry, the President blamed everything on his favorite target - trial lawyers:
“You cannot expect phone companies to participate if they feel like they’re going to
be sued… class-action plaintiffs attorneys, you know - I don’t want to try to get
inside their head; I suspect they see, you know, a financial gravy train - are trying to
sue these companies. It’s unfair. It is patently unfair.”

Always willing to go to the mat to defend helpless phone giants, President Bush
neglected to mention that the original lawsuits were brought by public interest
lawyers like us and the ACLU, not class-action lawyers. This is only one of a series
of untruths told by the Bush Administration about the largest domestic spying
program in American history. Not least, as reported in this paper in January, the
Bush administration took steps to monitor the calls of American citizens before
9/11, not after, as the administration has repeatedly asserted.

The President’s suggestion that it would be “patently unfair” to hold the phone
companies liable represents a new low in this administration’s disregard of the law.
Congress has long made it a crime for phone carriers to share a subscriber’s
phone records with the government without a warrant or subpoena. Both the
Electronic Communications Privacy Act and the Stored Communications Act provide
for a minimum of $1,000 in damages for each violation of a phone subscriber’s
privacy rights.

The Bush Administration never mentions that at least two phone companies
refused to participate in the Administrations’ illegal attempts to access citizen
phone records without court order. Qwest, under former CEO Joe Nacchio, refused
to cooperate with the NSA’s spying program because the government would not
certify that the program was legal. Michael Kieschnick, President of the Working
Assets phone company, went further: “Working Assets believes that the
warrantless monitoring of phone conversations ordered by the Bush administration
is illegal and unacceptable… Working Assets would never, under any
circumstances, give (let alone sell) records to the Bush administration without a
warrant or court order.”

The CEOs of the major phone companies - Verizon, ATT and Sprint - could have
complied with the law, but chose not to. Now that they’ve been sued under laws
Congress passed to protect their own subscribers, the companies expect a
Congressional bailout that wipes away the privacy rights of nearly every American
phone customer.

So far, Democratic leaders in the House have refused to join their Senate
colleagues in pushing through the Protect America Act that would have expanded
the administration’s domestic spying program and given unprecedented immunity
to telephone companies. Had Democrats succumbed to White House pressure,
dozens of lawsuits would have been dismissed and, along with them, any legal
remedy for the one of the most widespread violations of civil liberties by any U.S.
administration.

This is one of the most important civil liberties issues of this generation and House
Democrats must stand firm. The President sounds increasingly like the fictional,
deluded Dr. Strangelove, only instead of bemoaning a “Doomsday Gap” he
incoherently warns of an “Intelligence Gap.” If ever there was an opening for
Democrats to blockade an isolated and unpopular administration to protect a
popular principle, this is it.

There are ways to safeguard national security and uphold the law. But intentionally
rewarding illegal spying tramples upon due process and interferes with the
independence of the federal courts. Such a drastic step is not needed to protect
America from terrorist threats. Our greatest protection lies in a nation under the
rule of law.

The government can assure the phone companies’ cooperation in future
investigations, by protecting them from future damage claims while leaving
pending cases to be resolved in the courts.

Americans cherish their security, but time and again have shown that they value
first and foremost their rights of privacy and free speech.

There is little merit in protecting the nation from lawless terrorism only to become a
nation contemptuous of established law.

Bruce I. Afran and Carl J. Mayer are public interest attorneys. They brought the first
lawsuit against Verizon for illegally turning over customer records to the
government.

=============================================
                            Eavesdropping 101:
             What Can The NSA Do?
                        (1/31/2006)

The recent revelations about illegal eavesdropping on American citizens by the U.S.
National Security Agency have raised many questions about just what the agency is
doing. Although the facts are just beginning to emerge,
information that has come to light about the NSA's
activities and capabilities over the years, as well as the
recent reporting by the New York Times and others,
allows us to discern the outlines of what they are likely
doing and how they are doing it.

The NSA is not only the world's largest spy agency (far larger than the CIA, for
example), but it possesses the most advanced technology for intercepting
communications. We know it has long had the ability to focus powerful surveillance
capabilities on particular individuals or communications. But the current scandal
has indicated two new and significant elements of the agency's eavesdropping:

Special Note: A few years ago, when cable companies became involved in
Television, Cable Company vehicles went up and down streets and avenues,
utilizing devices that could tell what you were doing in the privacy of your
own homes. The practice was curtailed at that time because of legality
issues. The question is regarding the new federal laws requiring every
person owning a television set, to have a converter cable box which might be
the final nail of having "big brother" knowing every move you make,
including photo and listening devices that can ascertain what the average
citizen is doing in the privacy of his or her own home, condominium, or
apartment. This became evident after 9-11 when the "Patriot Act" was
established. It is apparent that the disaster of the World Trade Center
produced this act to curtail national and international terrorism; or was there
another covert reason?

The NSA has gained direct access to the telecommunications infrastructure through
some of America's largest companies.

The agency appears to be not only targeting individuals, but also using broad "data
mining" systems that allow them to intercept and evaluate the communications of
millions of people within the United States.

The ACLU has prepared a map illustrating how all this is believed to work. It shows
how the military spying agency has extended its tentacles into much of the U.S.
civilian communications infrastructure, including, it appears, the "switches"
through which international and some domestic communications are routed,
Internet exchange points, individual telephone company central facilities, and
Internet Service Providers (ISPs). While we cannot be certain about these secretive
links, this chart shows a representation of what is, according to recent reports, the
most likely picture of what is going on.

               CORPORATE BEDFELLOWS

One major new element of the NSA's spying machinery is its ability to tap directly
into the major communications switches, routing stations, or access points of the
telecommunications system. For example, according to the New York Times, the
NSA has worked with "the leading companies" in the telecommunications industry
to collect communications patterns, and has gained access "to switches that act as
gateways" at "some of the main arteries for moving voice and some Internet traffic
into and out of the United States."(1)

This new level of direct access apparently includes both some of the gateways
through which phone calls are routed, as well as other key nodes through which a
large proportion of Internet traffic passes. This new program also recognizes that
today's voice and Internet communications systems are increasingly converging,
with a rising proportion of even voice phone calls moving to the Internet via VOIP,
and parts of the old telephone transmission system being converted to fiber optic
cable and used for both data and voice communications. While data and voice
sometimes travel together and sometimes do not, and we do not know exactly
which "switches" and other access points the NSA has tapped, what appears
certain is that the NSA is looking at both.

And most significantly, access to these "switches" and other network hubs give the
agency access to a direct feed of all the communications that pass through them,
and the ability to filter, sift through, analyze, read, or share those communications
as it sees fit.

                            DATA MINING

The other major novelty in the NSA's activities appears to be the exploitation of a
new concept in surveillance that has attracted a lot of attention in the past few
years: what is commonly called "data mining." Unlike the agency's longstanding
practice of spying on specific individuals and communications based upon some
source of suspicion, data mining involves formula-based searches through
mountains of data for individuals whose behavior or profile is in some way
suspiciously different from the norm.

Data mining is a broad dragnet. Instead of targeting you because you once received
a telephone call from a person who received a telephone call from a person who is
a suspected terrorist, you might be targeted because the NSA's computers have
analyzed your communications and have determined that they contain certain
words or word combinations, addressing information, or other factors with a
frequency that deviates from the average, and which they have decided might be
an indication of suspiciousness. The NSA has no prior reason to suspect you, and
you are in no way tied to any other suspicious individuals – you have just been
plucked out of the crowd by a computer algorithm's analysis of your behavior.

Use of these statistical fishing expeditions has been made possible by the access
to communications streams granted by key corporations. The NSA may also be
engaging in "geographic targeting," in which they listen in on communications
between the United States and a particular foreign country or region. More broadly,
data mining has been greatly facilitated by underlying changes in technology that
have taken place in the past few years (see below).

This dragnet approach is not only bad for civil liberties – it is also a bad use of our
scarce security and law enforcement resources. In fact, the creation of large
numbers of wasteful and distracting leads is one of the primary reasons that many
security experts say data mining and other dragnet strategies are a poor way of
preventing crime and terrorism. The New York Times confirmed that point, with its
report that the NSA has sent the FBI a "flood" of tips generated by mass domestic
eavesdropping and data mining, virtually all of which led to dead ends that wasted
the FBI's resources. "We'd chase a number, find it's a schoolteacher with no
indication they've ever been involved in international terrorism," one former FBI
agent told the Times. "After you get a thousand numbers and not one is turning up
anything, you get some frustration."(2)

         COMBINING TELECOMMUNICATIONS
               AND OTHER PRIVATE DATA?

The NSA has historically been in the business of intercepting and analyzing
communications data. One question is whether or not this communications data is
being combined with other intimate details about our lives. A few years ago, the
Pentagon began work on an breathtaking data mining program called Total
Information Awareness, which envisioned programming computers to trawl through
an extensive list of information on Americans (including, according to the program's
own materials, "Financial, Education, Travel, Medical, Veterinary, Country Entry,
Place/Event Entry, Transportation, Housing, Critical Resources, Government,
Communications") in the hunt for "suspicious" patterns of activity. Congress
decisively rejected this approach, voting to shut down the program, at least for
domestic use – but we know Congress allowed elements of the program to be
moved undercover, into the bowels of the Pentagon, while supposedly being
restricted to non-Americans. We also know that the NSA is sharing its information
with other security services. What we do not know is whether any of information
from TIA-like enterprises is being combined with the NSA's communications
intercepts.

       HOW THE NSA SEARCHES FOR TARGETS

There are a range of techniques that are probably used by the NSA to sift through
the sea of communications it steals from the world's cables and airwaves:
Keywords. In this longstanding technique, the agency maintains a watch list or
"dictionary" of key words, individuals, telephone numbers and presumably now
computer IP addresses. It uses that list to pick out potentially relevant
communications from all the data that it gathers. These keywords are often
provided to the NSA by other security agencies, and the NSA passes the resulting
intelligence "take" back to the other agencies or officials. According to the law, the
NSA must strip out the names and other identifying information of Americans
captured inadvertently, a process called "minimization." (According to published
reports, those minimization procedures are not being properly observed.) In the
1990s, it was revealed that the NSA had used the word "Greenpeace" and
"Amnesty" (as in the human rights group Amnesty International) as keywords as part
of its "Echelon" program.

Link analysis. It is believed that another manner in which individuals are now being
added to the watch lists is through a process often called "link analysis." Link
analysis can work like this: the CIA captures a terrorist's computer on the battlefield
and finds a list of phone numbers, including some U.S. numbers. The NSA puts
those numbers on their watch list. They add the people that are called from those
numbers to their list. They could then in turn add the people called from those
numbers to their list. How far they carry that process and what standards if any
govern the process is unknown.

Other screening techniques. There may be other techniques that the NSA could be
using to pluck out potential targets. One example is voice pattern analysis, in which
computers listen for the sound of, say, Osama Bin Laden's voice. No one knows
how accurate the NSA's computers may be at such tasks, but if commercial attempts
at analogous activities such as face recognition are any guide, they would also be
likely to generate enormous numbers of false hits.

              A THREE-STAGE PROCESS

So how are all these new techniques and capabilities being put into practice?
Presumably, "The Program" (as insiders reportedly refer to the illegal practices)
continues to employ watch lists and dictionaries. We do not know how the newer
and more sophisticated link analysis and statistical data mining techniques are
being used.

But, a good guess is that the NSA is following a three-stage process for the
broadest portion of its sweep through the communications infrastructure:
The Dragnet: a search for targets. In this stage, the NSA sifts through the data
coursing through the arteries of our telecom systems, making use of such factors
as keyword searches, telephone number and IP address targeting, and techniques
such as link analysis, and "data mining." At this stage, the communications of
millions of people may be scrutinized.

Human review: making the target list. Communications and individuals that are
flagged by the system for one reason or another are presumably then subject to
human review. An analyst looks at the origin, destination and content of the
communication and makes a determination as to whether further eavesdropping or
investigation is desired. We have absolutely no idea what kind of numbers are
involved at this stage.

The Microscope: targeting listed individuals. Finally, individuals determined to be
suspicious in phase two are presumably placed on a target list so that they are
placed under the full scrutiny of the NSA's giant surveillance microscope, with all
their communications captured and analyzed.

EXPANDING SURVEILLANCE AS TECHNOLOGY CHANGES

Today's NSA spying is a response to, and has been made possible by, some of the
fundamental technological changes that have taken place in recent years. Around
the end of 1990s, the NSA began to complain privately – and occasionally publicly –
that they were being overrun by technology as communications increasingly went
digital. One change in particular was especially significant: electronic
communications ranging from email to voice conversations were increasingly using
the new and different protocols of the Internet.

The consequence of this change was that the NSA felt it was forced to change the
points in the communications infrastructure that it targeted – but having done that,
it gained the ability to analyze vastly more and richer communications.

The Internet and technologies that rely upon it (such as electronic mail, web surfing
and Internet-based telephones known as Voice over IP or VOIP) works by breaking
information into small "packets." Each packet is then routed across the network of
computers that make up the Internet according to the most efficient path at that
moment, like a driver trying to avoid traffic jams as he makes his way across a city.
Once all the packets – which are labeled with their origin, destination and other
"header" information – have arrived, they are then reassembled.

An important result of this technology is that on the Internet, there is no longer a
meaningful distinction between "domestic" and "international" routes of a
communication. It was once relatively easy for the NSA, which by law is limited to
"foreign intelligence," to aim its interception technologies at purely "foreign"
communications. But now, an e-mail sent from London to Paris, for example, might
well be routed through the west coast of the United States (when, for example, it is
a busy mid-morning in Europe but the middle of the night in California) along the
same path traveled by mail between Los Angeles and San Francisco.

That system makes the NSA all the more eager to get access to centralized Internet
exchange points operated by a few telecommunications giants. But because of the
way this technology works, eavesdropping on an IP communication is a completely
different ballgame from using an old-fashioned "wiretap" on a single line. The
packets of interest to the eavesdropper are mixed in with all the other traffic that
crosses through that pathway – domestic and international.

                         ECHELON

Much of what we know about the NSA's spying prior to the recent revelations
comes from the late 1990s, when a fair amount of information emerged about a
system popularly referred to by the name "Echelon" – a codename the NSA had
used at least at one time (although their continued use of the term, if at all, is
unknown). Echelon was a system for mass eavesdropping on communications
around the world by the NSA and its allies among the intelligence agencies of other
nations. The best source of information on Echelon was two reports commissioned
by the European Parliament (in part due to suspicions among Europeans that the
NSA was carrying out economic espionage on behalf of American corporations).
Other bits of information were gleaned from documents obtained through the U.S.
Freedom of Information Act, as well as statements by foreign governments that
were partners in the program (the UK, Australia, Canada, and New Zealand).

As of the late 1990s/early 2000s, Echelon swept up global communications using two
primary methods:

The interception of satellite and microwave signals. One way that telephone calls
and other communications are sent from the United States to Europe and other
destinations is via satellite and microwave transmissions. ECHELON was known to
use numerous satellite receivers ("dishes") – located on the east and west coasts
of the United States, in England, Australia, Germany, and elsewhere around the
globe – to vacuum up the "spillover" broadcasts from these satellite transmissions.
Transoceanic cable tapping. ECHELON's other primary eavesdropping method was
to tap into the transoceanic cables that also carry phone calls across the seas.
According to published reports, American divers were able to install surveillance
devices onto these cables. One of these taps was discovered in 1982, but other
devices apparently continued to function undetected. It is more difficult to tap into
fiber-optic cables (which unlike other cables do not "leak" radio signals that can be
picked up by a device attached to the outside of the cable), but there is no reason
to believe that that problem remained unsolved by the agency.

We do not know the extent to which these sources of data continue to be
significant for the NSA, or the extent to which they have been superseded by the
agency's new direct access to the infrastructure, including the Internet itself, over
which both voice and data communications travel.

             UNANSWERED QUESTIONS

The bottom line is that the NSA appears to be capable not only of intercepting the
international communications of a relatively small number of targeted Americans,
but also of intercepting a sweeping amount of U.S. communications (through
corporate-granted access to communications "pipes" and "boxes"), and of
performing mass analysis on those communications (through data mining and other
techniques).

Despite the fuzzy picture of "The Program" that we now possess, the current spying
scandal has highlighted many unanswered questions about the NSA's current
activities. They include:

Just what kinds of communications arteries has the NSA tapped into?
What kinds of filters or analysis is the NSA applying to the data that flows through
those arteries? How are data mining and other new techniques are being used?

Which telecom providers are cooperating with the NSA?

How are subjects selected for targeted intercepts?

What kinds of information exchange are taking place between the NSA and other
security agencies? We know they probably turn over to other agencies any data
turned up by watch list entries submitted by those other agencies, and they are
also apparently passing along data mining-generated "cold hits" to the FBI and
perhaps other security agencies for further investigation. Does information flow
the other way as well – are other agencies giving data to the NSA for help in that
second phase of deciding who gets put under the microscope?

Is data that NSA collects, under whatever rubric, being merged with other data,
either by NSA or another agency? Is communications data being merged with other
transactional information, such as credit card, travel, and financial data, in the
fashion of the infamous "Total Information Awareness" data mining program? (TIA,
while prohibited by Congress from engaging in "domestic" activities, still exists
within the Pentagon – and can be used for "foreign intelligence purposes.)
Just how many schoolteachers and other innocent Americans have been
investigated as a result of "The Program"? And just how much privacy invasion are
they subject to before the FBI can conclude they are not "involved in international
terrorism"?

Rarely if ever in American history has a government agency possessed so much
power subject to so little oversight. Given that situation, abuses were inevitable –
and any limits to those abuses a matter of mere good fortune. If our generation of
leaders and citizens does not rise to the occasion, we will prove ourselves to be
unworthy of the heritage that we have been so fortunate to inherit from our
Founders.

--------------------------------------------------------------------------------

(1) Eric Lichtblau and James Risen, "Spy Agency Mined Vast Data Trove, Officials
Report," New York Times, December 24, 2005; http://select.nytimes.
com/search/restricted/article?

res=FA0714F63E540C778EDDAB0994DD404482.

(2) Lowell Bergman, Eric Lichtblau, Scott Shane and Don Van Natta Jr., "Spy Agency
Data After Sept. 11 Led F.B.I. to Dead Ends," New York Times, January 17, 2006; http:
//www.nytimes.com/2006/01/17/politics/17spy.html.

"When the Truth is Distorted by Lies;

Let Us, Who Know,

Challenge Their Wisdom!"