Everything is a Matter of National Security, Apparently

by Ugh

Reuters reports:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans.

Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin - not only from defense lawyers but also sometimes from prosecutors and judges.

Even when my political views differed from what they are now, I would have raged against this kind of concealment/deception or whatever you want to call it.  "Getting the bad guys" apparently trumps all, no matter the definition of bad or getting.

Another problematic thing in the story:

The two senior DEA officials, who spoke on behalf of the agency but only on condition of anonymity, said the process is kept secret to protect sources and investigative methods.

Uh, I've seen the "anonymity granted because they weren't authorized to speak about the issue" excuse for the granting, but this seems to be quite something else.  "We are speaking on behalf of the DEA but you can't tell anyone who we are."  Right.  

It's "just like laundering money" says a former DEA agent in the story, oh good!  He at least spoke on the record with his name attached.  

And this makes me feel so much better:

As a practical matter, law enforcement agents said they usually don't worry that SOD's involvement will be exposed in court. That's because most drug-trafficking defendants plead guilty before trial and therefore never request to see the evidence against them. If cases did go to trial, current and former agents said, charges were sometimes dropped to avoid the risk of exposing SOD involvement.

Unbelievable.  Also, I'm pretty sure that the DEA is more than happy to show the accused the evidence collected against them before trial, even without being asked.  

I also enjoyed reading this article.  It's amazing how many people the U.S. has captured that are, in the words of "a reservist Air Force lawyer" who also happens to be Sen. Lindsey O. Graham (R-S.C.), "too dangerous to let go."  And yet these same people couldn't be convicted of the crimes they've (supposedly) committed because the evidence is "classified" or, even better, "weak."  Lex Luthors, all, we have to assume for national security purposes, to be kept in our own version of the Elizabeth Arkham Asylum for the Criminally Insane, only with less due process and poorer treatment - but equal escape possibilities, it seems.

Comments

[cleek]

this is pretty close to the last straw for me.

i was willing to give them the benefit of the doubt when it looked like the F in FISC was important. but if it's only for decoration...

[dr ngo]

And this comment, too, cleek, will go on your Permanent Record, as they used to tell us in school.

[russell]

when you have a really good hammer, everything starts to look like a nail.

[Marty]

I think this is really ok because [insert nonsensical, hard to follow, I'll thought out and basically stupid rationalization].

(just to save anyone who wants to be for this the trouble.)

[Marty]

Ill thought out,(or poorly typed)

[CountMe-In]

Marty, I see what you're doing there ---- the message is encoded in nonsense to put the NSA and the DEA off the scent.

I have my de-encryption crew on it and then, well, trouble

Hide.

[sapient]

The undated documents show that federal agents are trained to "recreate" the investigative trail to effectively cover up where the information originated, a practice that some experts say violates a defendant's Constitutional right to a fair trial.

If it's true that the DEA is lying to the court, not only is it a violation of the defendant's rights, that's a serious crime itself, and a violation of the public trust.

That said, the article is very vague about its sources and the scope of the "program." Many criminal cases are begun because of tips by anonymous informants, and other techniques that officers wouldn't voluntarily provide to defendants unless the case was challenged in court. (Unlike "exculpatory evidence", the prosecution isn't obliged to go through the entire chain of investigation unless there's a court challenge. For example, many prosecutions are begun based on tips by anonymous informants (who are sometimes very shady people themselves, or professional "narcs"). It would be more illuminating if the article pointed to an example of a few cases in which this alleged "program" was used.

Without a discussion of what normally occurs in a criminal case to identify and apprehend criminals, it's not clear from this article what information is being used (is it the same "database" as the NSA "database"? Or is it a different "database" of more focussed drug dealer information? Wiretaps? Were those legal wiretaps obtained with a warrant? It's not clear to me that the DEA is tapping into the NSA's telephone database, for example, although the article makes it seem that way.

Maybe we should ask Darrel Issa to investigate.

[sapient]

Looks like the Justice Department is already investigating. http://www.chicagotribune.com/news/sns-rt-us-dea-sod-reaction-20130805,0,1645334.story

But Fox News is on the case, blaming Holder, of course. http://nation.foxnews.com/2013/08/05/reuters-exclusive-federal-agents-under-eric-holder-caught-using-nsa-wiretaps-prosecute

My instincts are to trust Holder.

[Ugh]

Maybe we should ask Darrel Issa to investigate.

Ambition must be made to counteract ambition.

[Ugh]

russell: when you have a really good hammer, everything starts to look like a nail.

Mjolnir?

[liberal japonicus]

perhaps connected to that is this New Yorker article on civil forfeiture.

IMHO, a lot of this flows from the way the US treats drugs. Of course, Japan is even more draconian on drugs, but drug laws seems like a case where you either are draconian or you legalize. Of course, the Japanese police and justice system have similar draconian tendencies, so this isn't expressing my support for that, just to be clear.

[bobbyp]

Maybe we should ask Darrel Issa to investigate.

Comic relief does appear to be in order.

[nigel]

My instincts are to trust Holder.

My instincts would be to trust neither Fox nor Holder, who is prominent among the sources of my various disappointments in the Obama administration.

[Nigel]

I've seen the "anonymity granted because they weren't authorized to speak about the issue" excuse for the granting, but this seems to be quite something else. "We are speaking on behalf of the DEA but you can't tell anyone who we are."

I thought this was now standard procedure.
The willingness of the press to grant anonymity to government spokespersons in this manner is indeed disturbing, but it's not new.

[Nigel]

Clean teaming isn't new, either:

http://www.emptywheel.net/2013/08/05/about-the-reuters-dea-special-operations-division-story/#sthash.9TbkOW3Y.dpuf
... as the “senior DEA officials” admitted, this, too, is not new in the least. Again, the Reuter’s quote of the incredulous former Judge Nancy Gertner aside, any number of longtime members of NACDL could have told you all of this at any point in time since the mid 90′s.
The takeaway that is important from the Reuters piece is that all the frothing about “golly, what if those NSA capabilities bleed out of terrorism and into traditional criminal cases” is nuts. It already is, and has been for a long time. It is the “clean teaming” of criminal prosecutions. And it is a direct and tangible fraud upon defendants, the courts, Due Process and several other important Constitutional concepts.

And it is patently obvious that Congress does not provide any meaningful oversight over the NSA or the FISA court:
http://www.theguardian.com/commentisfree/2013/aug/04/congress-nsa-denied-access

[sapient]

Holder, who is prominent among the sources of my various disappointments in the Obama administration.

Very strong correlation with the "authorities" you cite, Nigel.

[Nigel]

Not authorities - just reporters.

Rereading the Greenwald piece, it seems to be fairly straightforward reporting to me, with actual quotes from non-anonymous sources.
If you'd like to challenge anything Greenwald reports about various Senators and Congressmen, I'd be more than happy to hear it. It does, however conform pretty well with their own public statements, for instance:
http://www.wyden.senate.gov/news/blog/post/wyden-on-nsa-domestic-surveillance

Likewise the other post, though I'll grant you this is an assertion rather than a report:
...any number of longtime members of NACDL could have told you all of this at any point in time since the mid 90′s

The reason you'll find me citing relatively left leaning reporters is that they are the ones doing the reporting on this issue.

With all due respect, you would be the one appearing to argue (negatively) from authority here.

[sapient]

The reason you'll find me citing relatively left leaning reporters is that they are the ones doing the reporting on this issue.

Greenwald and Wheeler aren't "reporters". And, funny, when I enter DEA NSA into Google News, I come up with few legitimate news sources. We've got New York Daily News, a Washington Post blog (not story), the original Reuters piece, but then Townhall ("We have met the enemy and he is us!").

Benghazi! IRS scandal!

That said, I think that drug policies are the root of most government evil, but not because of information gathering practices.

[Nigel]

For the record, I acknowledge the necessity for a degree of government surveillance. What worries me is when governments set up systems without any real constraints independent of government in general, and the executive function in particular.

It seems quite likely that in some respects the power to surveil is even less constrained in the UK (which would explain why the US funds GCHQ to quite the extent that it does).

On the other hand, our executive does not claim the power to indefinitely detain without trial, or to assassinate. Nor do we have a prosecutorial system with quite the same zeal for locking people up.

[sapient]

Nor do we have a prosecutorial system with quite the same zeal for locking people up.

Point of agreement.

[Nigel]

Greenwald and Wheeler aren't "reporters"

Would you care to explain why ?

[sapient]

They don't even make a pretense of being unbiased. Their reporting isn't trustworthy because they report in order to further an agenda, not to discover the truth.

[Nigel]

They don't even make a pretense of being unbiased.

Isn't that preferable to those who pretend to be unbiased ?

Their reporting isn't trustworthy because they report in order to further an agenda, not to discover the truth.

I prefer to judge reporting on its merits, rather than on the beliefs of those who report.
As people who uncover stuff, both Wheeler and Greenwald are excellent and persistent reporters. Both have very clear agendas, which makes it very easy to apply a skeptical analysis to what they write.
Neither seem to have a penchant for quoting anonymous government sources.

I read the Times, Telegraph and Guardian (amongst others) most days, and reporters on each paper have their own identifiable biases and agendas.

[wj]

I think that drug policies are the root of most government evil, but not because of information gathering practices.

sapient, our drug follies are indeed at the root of a lot of government problems. But while the information gathering policies are not the primary reason that our drug policy is a problem, the problem of our information gathering approach is being reinforced by our drug policies.

It's just causality running the other way.

[Turbulence]

They don't even make a pretense of being unbiased.

Nigel ably covered the problems with this statement, but I'm curious, does this mean we should reject Holder's statements as well? I mean, he's clearly biased since he's a government official, right?

Also, would Greenwald/Wheeler be OK if they just said "we seek to be objective in our reporting and uncover the truth"? Is that a magical incantation that makes people trustworthy?

[Turbulence]

Also, which journalists are not furthering an agenda? Isn't "I want to get paid" an agenda? What about "I want to expose the truth and change the world"?

[wj]

They [Greenwald and Wheeler]don't even make a pretense of being unbiased.

Are you saying that it is preferable that a reporter make a pretense of being unbias when he clearly is not?

And certainly a great number of them are biased. The biggest variation appears to be whether they simply don't admit it, or they attempt to hide it behind pseudo-even-handedness which acts like nonsense from one side ought to be given equal weight to actual facts from the other.

Frankly, I'd rather know up front what the reporter's biases are, so I can weigh their report accordingly.

[sapient]

Greenwald and Wheeler begin their inquiry with their own "truth" and then cherry-pick facts to support that "truth." Credible reporters discover the truth by finding facts. There are lots of people here who love Greenwald: go right ahead. I won't read him anymore, and don't give him credence. I'm sure that by citing Greenwald, you will convince people who are already convinced.

As to Holder, he is the Attorney General. He has duties as such, and can be evaluated on the basis of what he is charged to do. I don't have any information that he's a liar, do you? But his job isn't to report the news.

[cleek]

personally, i don't consider gg to be a reporter. his standard MO is as an opinion journalist. he's a pundit.

yes, he is acting as a reporter in some ways with this Snowden thing. but when this is over, (actually long before then) he'll be back to giving his opinions, and not doing anything anyone would call "reporting".

[sapient]

Frankly, I'd rather know up front what the reporter's biases are, so I can weigh their report accordingly.

This works for me. I know what Greenwald's biases are and I weigh his reporting at 0.

[CountMe-In]

I report.

Then I change my mind.

Everyone else has already decided.

I slice meat on a bias.

But I'm left-handed.

[russell]

that's the hand you use...

well, never mind.

[Nigel]

I know what Greenwald's biases are and I weigh his reporting at 0

So Snowden does not exist ?

[liberal japonicus]

While I expressed a desire for a bit of a calmer discussion, I'm probably being a complete hypocrite when I include this link, about the Fifth CIrcuit's decision on cell phone location information. It's by Orin Kerr, who runs with the pack at Volokh Conspiracy.

I haven't been there in a long time, but back in the day, Kerr was the only one I could generally read without getting nauseous about the conservative-libertarian vibe and going back to check, there are a number of new folks there, so the group might not be as reactionary as it used to be. A first quick look has one blogger suggesting that Obama won the election because they violated Facebook's TOS, but looking closer, he's retracted his assertion, and Ilya Somin has this post about the NewYorker article on civil forfeiture that has a take I like, so maybe there is hope.

Anyway, I anticipate the thread to devolve into one side saying the other has a pointy head and that side asserting that the other group has their eyes too close together, but I live to be surprised.

[Turbulence]

LJ, your fifth circuit link didn't make it through...you might want to repost it.

[liberal japonicus]

Thanks Turb, fixed.

[Barry]

Posted by: Marty

"I think this is really ok because [insert nonsensical, hard to follow, I'll thought out and basically stupid rationalization].

(just to save anyone who wants to be for this the trouble.)"

You forgot the chickenhawk bragging, where somebody beats their chest that they are *so* manly that they *love* having the Constitution shredded.

[russell]

What I don't quite understand from reading the article is how the operations of a group with the DEA can be classified.

[Donald Johnson]

"I know what Greenwald's biases are and I weigh his reporting at 0."

So everything in the August 4 piece that Nigel linked is factually incorrect? Perhaps I don't understand how the weighting system works.

[Turbulence]

Perhaps I don't understand how the weighting system works.

My best guess is that sapient is suggesting a zero weighting means that any given statement has a 50% chance of being true.

I imagine a pastiche of wikipedia and conservapedia that combines articles on the same topic from both, randomly choosing which source to pick each sentence from. Reading such a site, you would not know whether you were becoming instantaneously smarter or dumber.

[Ugh]

Schrödingpedia.

[Turbulence]

From LJ's Kerr link:

But when you place a call, you need the phone company to route and direct the call over its network, and to do that, your cell phone needs to communicate with the phone company and disclose its location. That, the court reasoned, is communication between you and the company. And the record of whatever information your phone sent to the company belongs to the company, not to you.

This seems broken to me for two reasons. First, it neatly ignores the question of location precision. The phone company needs to know what tower I'm connected to in order to route my call. But does it need to store and archive the signal strength indicators of all nearby towers? That information doesn't seem relevant to routing my call at all. But that would allow them to do much better reconstructing my movements. With multiple towers and signal strength measurements, they can triangulate my position. But with only one tower (really one antenna one one tower), they can only say that my location is in this 30 degree arc from this one tower.

Secondly, I'm not sure they "need" to know this information for routing purposes at all. I have an unlimited plan. There's no reason that they need to store my individual call history. They can make the network admission decision in real time at the tower and then place the call with a random identifier. We've chosen to architect the phone system so that it is not resistant to surveillance but that's not an intrinsic property of telecommunications; that's a design choice we made.

[sapient]

So everything in the August 4 piece that Nigel linked is factually incorrect? Perhaps I don't understand how the weighting system works.

I don't know what the Greenwald article says, because I refuse to read him. He cherry-picks facts in order support whatever conclusion he's decided, in advance, to reach. I'm sure that many of the things he states are "facts", but he habitually leaves out pertinent information which leads to conclusions that are unreliable.

I have a feline in my house. IT'S A LION!

[Ugh]

That might depend on where your house is.

[sapient]

These Department of Justice guidelines are interesting.

[Ugh]

And troubling.

[Nombrilisme Vide]

What I don't quite understand from reading the article is how the operations of a group with the DEA can be classified.

Russell, according to the article, they're not. They're LE Sensitive, which is a subcategory of the Sensitive But Unclassified designation.

[russell]

Russell, according to the article, they're not

But in the article, I see this:

Today, much of the SOD's work is classified, and officials asked that its precise location in Virginia not be revealed.

Secondly, I'm not sure they "need" to know this information for routing purposes at all.

This may well be so, but is sort of orthogonal to the question of whether it's lawful for the feds (or local cops for that matter) to use records about your phone location to track you.

Stuff that is inherently public is generally not considered to be covered by the 4th Amendment. So, if you have a conversation on a street corner and the cops listen in, it's not considered to be a private communication, so the 4th doesn't apply.

Likewise, your location in any public place is not private information. If a cop could follow you (assuming the availability of a cop to do so) then the 4th doesn't apply.

If I understand correctly, the right to be free from unreasonable search and seizure only applies to contexts where there is a reasonable assumption of privacy.

[Nombrilisme Vide]

D'oh, yeah, missed that.

[Nombrilisme Vide]

OTOH, the SOD may be with the DEA, but it's not a purely DEA operation. From the article:

The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security.

It's actually fairly understandable how an activity drawing from said three-letters could have mostly classified operations. I'm not saying it's not yet another sign of the gov't love of overclassification on the thinnest pretenses (or for that matter, a malignant outgrowth of the militarization of drug enforcement), but if they're an information clearinghouse pulling from (among other sources) the intel community, and their raison d'être is to identify and if need be sanitize actionable information, I'd be hard-pressed to see how a large part of what they do could avoid being classified. Although yes, that's the operations, not The Operation. The hush-hush secrecy evoked by the article is by turns silly and despicable.

[Nombrilisme Vide]

*evoked in the article. I blame the SOD, not Reuters.

[Donald Johnson]

"My best guess is that sapient is suggesting a zero weighting means that any given statement has a 50% chance of being true."

What it actually means is that he doesn't like GG because GG is very critical of Obama on the war on terror and civil liberties issues.

But I like your definition. The implication is that a columnist could have a negative weight, which would mean that whatever he or she says, the opposite is true (if the negative weight is -1.) This would provide useful information. Applying this to the columnists at the NYT, David Brooks fluctuates between -1 and 0--he's not reliably unreliable. Most of the so-called liberal columnists there, like Dowd and Friedman, are probably around zero. Krugman and to a lesser degree Kristof have readings in the positive range.

[Ugh]

russell: Likewise, your location in any public place is not private information. If a cop could follow you (assuming the availability of a cop to do so) then the 4th doesn't apply. If I understand correctly, the right to be free from unreasonable search and seizure only applies to contexts where there is a reasonable assumption of privacy.

And that's just the thing, "assuming the availability of a cop." IMHO 4th amendment jurisprudence from the past 60 years or so would look a lot different if SCOTUS assumed that the government would be able to, for example, track and store pen-register type information for every communication made in the entire country.

That is, it seems to me that the "limited resources" aspect of surveillance is doing a lot of work - either explicitly or implicitly - in SCOTUS opinions on the issue. They didn't have to grapple with full-time country-wide surveillance because it was inconceivable. Now, not so much. But, too late, it seems.

Same with being out in public - walking down the street in downtown DC is actually pretty private because no one knows who I am (sadly, or maybe happily!). But if there is a government camera on every corner on 24/7 and all video is permanently stored for later viewing, things seem a lot different, at least to me.

[Nigel]

the right to be free from unreasonable search and seizure only applies to contexts where there is a reasonable assumption of privacy...

I think that's more or less correct - the person claiming the right has to exhibit "an actual (subjective) expectation of privacy", and it must be demonstrated that society is prepared to recognize that expectation is (objectively) reasonable (Smith v. Maryland).

What is going to be interesting over the next decade or so is whether the development of a technical capacity for anyone to spy on anyone else, anywhere and at any time, is going to change whether society recognises any expectation of privacy at all.

We have the technology to develop a universal panopticon; 'society' is going to have to make a positive decision to engineer the continued existence of privacy.

[liberal japonicus]

'society' is going to have to make a positive decision to engineer the continued existence of privacy.

Nigel's formulation gets it exactly right, I think, and I believe that there are going to be powerful forces that are going to push this in the other direction. The convenience of someone knowing how to locate someone else is going to overwhelm any societal desire for privacy, especially since that convenience can be monetized.

I want to, just in case anyone misreads me, this is descriptive rather than normative. I made the suggestion that the loss of privacy corresponds to the tragedy of the commons. Just as I think that a lot of native American views on property ownership are a lot more enlightened and forward looking than the notion of property ownership that arose in Europe and were imposed on them, but couldn't exist within the western framework and were tied up in notions of progress, I feel that privacy as well will be something that arose from the confluence of populations migrating, mixing and growing in the 19th and 20th centuries and is going to be the domain of those who can afford it rather than something that everyone should be granted.

[hairshirthedonist]

SOD, indeed...

[Hartmut]

Reading the thread it took me some time to find out what SOD stood for. Some Other Dude, Secretary Of Defense, Standard Operation D???... ;-)

[russell]

The convenience of someone knowing how to locate someone else is going to overwhelm any societal desire for privacy

Bingo.

And for 'knowing how to locate someone else' you can interpolate 1,000 other conveniences.

I made the suggestion that the loss of privacy corresponds to the tragedy of the commons.

Can you unpack this a little, LJ?

[sapient]

I feel that privacy as well will be something that arose from the confluence of populations migrating, mixing and growing in the 19th and 20th centuries and is going to be the domain of those who can afford it rather than something that everyone should be granted.

Or, it may continue to exist within the home, a room, a car, a body, an envelope, and other enclosed physical spaces, but not in electronic communications. That is the way it started out. I'm not saying that's ideal, but it's more practically enforceable.

[russell]

That is the way it started out.

???

That's the way what started out?

[sapient]

That's the way what started out?

The Fourth Amendment.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I'm not an "originalist", and I believe in electronic communications privacy. But it, and its associated problems, didn't exist back then. Don't know how that's controversial in any way.

[Turbulence]

The convenience of someone knowing how to locate someone else is going to overwhelm any societal desire for privacy, especially since that convenience can be monetized.

See, this sounds reasonable, but...it doesn't make any damn sense. You see that, right?

I mean, if we lived in a world where telcos were selling real time location data attached to personal identities, you'd have a point. But...we don't live in that world. That world is a fantasy. And while I'm sure telcos bill the feds for data, this is hardly a profit center for them; it is surprisingly difficult to make money selling data to the feds (hint: you have to give them whatever they want and they get to decide how much to pay you). And it is not like the telcos are using the data for huge revenue generating operations anyway. The only use I've seen is reverse-911 style warnings of severe weather events. Trust me, Verizon is not raking in the cash on that.

I know people like to make breezy sweeping generalizations about convenience and monetization, but there's one point that gets missed: the feds' little data hoovering operation would have never gotten off the ground if it had to be discussed openly. There's no way you could get a bill through congress authorizing the federal government to hoover up the locations of every cell phone owner in the country. The current program is similar to the phenomena of prison guards raping prisoners in that it continues because voters can't see it. The political suicide associated with openly passing this program seems like a salient fact when considering the alleged inevitability of loss of privacy, no?

[cleek]

The political suicide associated with openly passing this program seems like a salient fact when considering the alleged inevitability of loss of privacy, no?

the problem is that it's not necessary for Congress to explicitly 'pass' these kinds of things; the relevant agencies can come up with them on their own by wriggling through cracks in existing laws that nobody thought could be wriggled through.

if the capability is there and someone can justify it legally, it will probably happen. (and that's true of everything, not just spy programs)

[hairshirthedonist]

But...we don't live in that world.

Not now. But people, as private citizens, check in on social media, revealing their locations to friends (or everyone, depending on their settings), as opposed to the feds "buying" that information from telcos. So there may be a time when people let their friends track their movements on a more frequent basis, or where parents track the movements of their children all the time, all for a worthwhile-to-the-telcos (or whoever) fee.

Once that info is out there or systems are set up to make it readily available, the feds can hoover that up, too, without passing legislation, just like they've been doing with all the information that's readlily available now.

It's all readily available because of the money to be made, even if that money isn't coming from the feds. The feds just benefit from it parasitically. Everyone else pays for it.

[sapient]

if the capability is there and someone can justify it legally, it will probably happen. (and that's true of everything, not just spy programs)

The fact that the most people have no expertise as to what potential programs might have resulted from the Patriot Act isn't any different than the fact that most people don't really know where the money in the farm bill goes, or what patent laws mean, or what EPA rulings require of businesses that aren't theirs. I'm sure that many people would be up in arms about a lot of legislation if they had any expertise.

When we do get concerned is when things actually have an adverse effect, or when the media (or the blogosphere) gets wind of something and spreads the fear of what could happen. Has anyone complained about being personally injured by any of this?

As far as I can tell, no one has suffered any embarrassment from the NSA "snooping". Yet many people suffer embarrassment, divorce, loss of jobs, suicide, etc., because of their own careless use of technology (perhaps youthful indiscretion that doesn't ever go away), or because what they thought was private or undiscoverable on the Internet turned out not to be.

As to the DEA issue, any investigation into possible abuses should include examining actual cases where the material was used, and how it was handled procedurally.

[russell]

I believe in electronic communications privacy.

Actually, I don't see any evidence of this.

[Turbulence]

the relevant agencies can come up with them on their own by wriggling through cracks in existing laws that nobody thought could be wriggled through.

I guess that's true. But doesn't it prove a but too much? Doesn't that mean that the feds will start executing random people for fun because they can wriggle through cracks in existing laws? I mean, if we're convinced that powerful actors are always going to find a way to do what they want no matter what laws or regulations we pass, then what's the point of doing anything?

But people, as private citizens, check in on social media, revealing their locations to friends (or everyone, depending on their settings), as opposed to the feds "buying" that information from telcos. So there may be a time when people let their friends track their movements on a more frequent basis, or where parents track the movements of their children all the time, all for a worthwhile-to-the-telcos (or whoever) fee.

That's all distinguished from the fed's access by consent. Consent is pretty important here.

Moreover, I don't see why the feds would have to get that data from Facebook when they can get more and better data from Verizon. I mean, why would you pay money to buy a tiny amount of location data from Facebook that only covers a small group of people who choose when to log their locations versus getting data on everyone with a cell phone regardless of what they choose? Isn't this a no-brainer?

Finally, people can do this 'let my friends track me' thing right now and the vast majority of people don't. Because it is kind of creepy. Why should we expect that to change suddenly?

It's all readily available because of the money to be made, even if that money isn't coming from the feds.

But that's not true. There actually isn't much money to be made doing this. There are a bunch of startups in this space, and they're not making much money at all. Because the business model doesn't really make sense (a common problem for a lot of startups in the valley actually). Voluntary checkin location data isn't worth serious money. People don't like checking in (which is why you have to bribe them) and don't do it very often. But even if you apply gameification and convince a small select group of weirdos (read: not the most valuable demographics) to check in all the time, that doesn't really help because you can't effectively monetize that.

Let's say Google knows that every weekday I walk from my home to my office...how does that let them make money? In theory, they could spam me with ads for a local cafe that's on my way there. But I probably already know that it exists (I live here and Google doesn't) and I'm either not going there because I don't like it or I am going there already; either way spending money advertising it to me is a waste. Moreover, attribution is hard in both directions: Google can't easily convince the cafe that their shiny new customer is due to Google and the cafe can't guarantee Google that they'll pay up for every shiny new customer that Google delivers.

Local location based advertising is actually much harder than online advertising. So there really isn't that much money to be made here. Which means we shouldn't expect to see a thriving market in personal location data.

[sapient]

Actually, I don't see any evidence of this.

I'm not sure what evidence you're looking for. In any case, rather than questioning my good faith just for the hell of it, you might respond to my comment that the privacy challenges posed by electronic communications don't necessarily ring a death knell for all types of privacy as some commenters have suggested.

[cleek]

Doesn't that mean that the feds will start executing random people for fun because they can wriggle through cracks in existing laws?

some of what law enforcement does in the name of the War On Drugs could be described that way - with only the slightest hint of hyperbole.

I mean, if we're convinced that powerful actors are always going to find a way to do what they want no matter what laws or regulations we pass, then what's the point of doing anything?

well, there's always the hope that we can cut off the tentacles we don't like, by closing the crevices they've crawled through.

[sapient]

some of what law enforcement does in the name of the War On Drugs could be described that way - with only the slightest hint of hyperbole.

We need to end the War on Drugs. That would take care of a lot of things. Unfortunately, what we replace it with (in terms of drug policy) is complicated.

[liberal japonicus]

Can you unpack this a little, LJ?

I think that privacy is something that everyone, ideally, partakes in, and when a portion of the population gives it up and gives it up readily, it makes it harder for the minority to demand that it be protected for them.

Currently, it is only American citizens living in the US that can claim some right of privacy and even that is attenuated. You don't have a right to be private when you travel to the store, you don't have a right to your privacy when your telco is figuring out where you are to help you get the best cell signal.

As an American living overseas, my communication is probably not protected and as I understand it, if any US citizen speaks with a foreigner, be it a someone living overseas or a foreign national living in the US, that communication is not protected. Also as I understand it, the NSA has taken advantage of the fact that they can operate outside of the US by siphoning off communications at points outside the US.

“Select a Foreigness Factor,” the text on a National Security Agency training slide for a system called XKeyscore, made public by the Guardian, in a piece by Glenn Greenwald, tells its analysts. An arrow points to a drop-down menu with choices like “Foreign govt indicates that the person is located outside the U.S.” and “The person is a user of storage media seized outside the U.S.” Foreignness matters because the N.S.A. is not supposed to spy on Americans. The one selected for the sample search might be the easiest: “In direct contact w/tgt overseas, no info to show proposed tgt in U.S.” In other words, We found a link between you and someone abroad we’re interested in, and you haven’t shown us that you’re American—so let’s take a look.link

And the ability for 'us' to benefit from having our location broadcast means that the 'commons' of privacy has been chipped away at. I realize that this is a 'sweeping breezy generalization', but I think about what I was able to do with keeping track of student work 10 years ago and compare it to now, it seems like the advantages of this and the speed by which we have reached this point unavoidable. The cost is the fact that everyone's privacy is eroded, but to have that kind of tool available and not use it just means that someone else is going to. As hairshirt notes, the information is out there. To not make money off of it, in some way, just isn't the way things work.

I also (and I hope Hartmut might weigh in here) think that privacy is a western construct that really doesn't appear until the late 19th century as a concept. I live in a relatively small Japanese town, and my ability to keep what I do private is rather delimited by the fact that a network exists that can share information and place me in different places and construct a map of where I have been if there was that desire. Anyone who lives in a small town/rural environment knows that the first thing that you lose is your anonimity. Given that the internet turns every place into a village, it should not be surprising that if you don't want someone figure out what you've been doing online, your basic choice is to just stay offline. That this is extending to the real world should not be a really big surprise, but for some, they think that patterns of previous thought are going to protect them from changes. They aren't really, and someone will be able to find a way to somehow access that data and the attempts to protect privacy by demanding that telcoms delete your data will be both disrupted when authorities need to find someone (such as in an amber alert or something similar) and when non-telcom companies have access to that data. Not to mention the close relationship between the NSA and telcoms, so before you argue that the telcoms are going to protect us, you might want to think if history supports your breezy generalization.

When I go to South Korea, they have wireless everywhere, so either I forego it, or just run my communications through whatever and someone could figure out where I've been and probably what I've been doing. Right now, they might have to put some mental elbow grease to the task, but in 5 or 10 years, I don't think that will be the case. Even if you believe that it you are being protected by a telcom that can't figure out how to monetize your location, think about everyone else who could make some money off of telling everyone where you are, not to mention telling you where you are, or telling you where your friends are or telling your friends where you are or telling you where your children are. It's not just trying to get the cafe to sell you a latte, it is a much wider notion.

The only reason that telecoms are something that you can put your trust in is that they have lagged behind because they have a monopoly, and so therefore have a conservative mentality. When disruption of an industry takes place, everything is up for grabs. So depending on your telcos to hold the line is fundamentally a conservative strategy and it seems like conservative strategies don't really work, especially when dealing with the disruption of technology. And if you think that companies can't make money from it, you aren't thinking hard enough.

[russell]

I'm not sure what evidence you're looking for

The evidence I see is a defense of federal programs that intrude on electronic privacy, and a consistent resistance to the idea that laws intended to protect privacy in communications apply to electronic comms.

So, not for the hell of it, just an observation of your statements, here and whenever the topic comes up.

the privacy challenges posed by electronic communications don't necessarily ring a death knell for all types of privacy as some commenters have suggested.

A quick read of the thread reveals no commenters that I can find who are predicting a death knell for all types of privacy.

I might have missed something.

The original Reuters piece begins:

A secretive U.S. Drug Enforcement Administration unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation

So, with the exception of 'informants', what we are talking about here is signals intelligence.

In the case of the NSA, that's pretty much what they do.

[russell]

I think that privacy is something that everyone, ideally, partakes in, and when a portion of the population gives it up and gives it up readily, it makes it harder for the minority to demand that it be protected for them.

Thanks very much for this reply LJ. This is an interesting way to think about it, I am going to ponder this for a while.

One small quibble - the 4th Amendment guarantees of privacy are supposed to apply to all US persons, not just citizens.

So, foreign nationals living legally in the US ought to be covered as well.

If, of course, I understand correctly.

Bottom line, people living legally in the US should be able to converse with each other by phone, email, IM, or text with a reasonable assumption that, absent a lawful order specifically naming you as a target and giving the reason why you are a target, neither the feds nor law enforcement will be listening in, either in real time or after the fact.

That's what electronic communications privacy looks like.

We don't have it.

[dr ngo]

If you didn't have anything to hide, Russell, you wouldn't be complaining.

(And we know what you're hiding . . .)

[Turbulence]

some of what law enforcement does in the name of the War On Drugs could be described that way - with only the slightest hint of hyperbole.

Indeed.

I can imagine your comment being said by some very sage people about the CIA right before the Church report came out.

Currently, it is only American citizens living in the US that can claim some right of privacy and even that is attenuated.

I think imprecision in language is hurting the discussion a bit. When talking about privacy, we should be clear who information is private from. There is nothing about my life that is private from me. There is little that is private from my spouse. There is a great deal that is private from you.

So, yes, formally, the US government doesn't care about the privacy rights of non-US persons (i.e., US citizens anywhere in the world or people residing in the US). But Germany doesn't care about the privacy rights of non-German persons. The UK doesn't care about the privacy rights of non-UK persons. Etc.

Governments are beholden to people who vote for them and generally feel like they can do whatever they want with everyone else. This state of affairs has persisted since...forever actually. It is hardly new.

You don't have a right to be private when you travel to the store, you don't have a right to your privacy when your telco is figuring out where you are to help you get the best cell signal.

This is wrong. You most certainly do.

I mean, if you walked into a store and they took your picture and then put it in their advertisements without your consent, you'd certainly be able to fight them in court and win. If they installed invisible microphones and recorded your private conversations and tried to sell them or blackmail you, you'd also have a good case.

Given that the internet turns every place into a village

It does no such thing.

it should not be surprising that if you don't want someone figure out what you've been doing online, your basic choice is to just stay offline.

I'll give you $1000 right now if you tell me where I've been online for the last 30 days. Seriously, I'll write you a check. This is easy, right? No one has any privacy online, right?

The only reason that telecoms are something that you can put your trust in is that they have lagged behind because they have a monopoly

Again, this isn't really true.

There are multiple wireless carriers. It is a tough market to get into (high fixed costs), but there are small and new entrants (look at all the MVNOs). Moreover, there's lots of competition in the handset market and the handset application market. After all, Samsung or HTC or Apple can easily modify your cell phone's operating system so it records your location and uploads it to their server for sale to the highest bidder. They don't do that because...(1) there's no money in it and (2) no one would ever buy one of their phones again.

And if you think that companies can't make money from it, you aren't thinking hard enough.

OK, then think harder: explain to me how companies can monetize this data without alienating their customer base. People switch mobile phone carriers all the time. They switch handset manufacturers all the time. They even switch phone environments (from Apple to Google to Microsoft). If you think it is so easy, tell me how to do it without causing half your customer base to run screaming into the arms of your competitors.

[russell]

If you didn't have anything to hide, Russell, you wouldn't be complaining.

They want my chicken salad recipe!!!

[hairshirthedonist]

After all, Samsung or HTC or Apple can easily modify your cell phone's operating system so it records your location and uploads it to their server for sale to the highest bidder.

I don't think this is what anyone was suggesting or that it's necessary for what anyone was suggesting.

Why should we expect that to change suddenly?

Who said anything about suddenly?

[Nigel]

The fact that the most people have no expertise as to what potential programs might have resulted from the Patriot Act isn't any different than the fact that most people don't really know where the money in the farm bill goes, or what patent laws mean, or what EPA rulings require of businesses that aren't theirs. I'm sure that many people would be up in arms about a lot of legislation if they had any expertise.

It's considerably different when those programs are classified, and therefore beyond real discussion or challenge, even by those who have expertise - or indeed by those who are charged with their oversight (I see you didn't bother to read Sen Wyden's speech either - does he fall into the same category as Greenwald ?)

As to the DEA issue, any investigation into possible abuses should include examining actual cases where the material was used, and how it was handled procedurally.

And how do you propose that happen, when the material used has been 'clean teamed' ?
http://www.reuters.com/article/2013/08/05/us-dea-sod-idUSBRE97409R20130805
"Remember that the utilization of SOD cannot be revealed or discussed in any investigative function," a document presented to agents reads. The document specifically directs agents to omit the SOD's involvement from investigative reports, affidavits, discussions with prosecutors and courtroom testimony. Agents are instructed to then use "normal investigative techniques to recreate the information provided by SOD."

Use of secretly obtained data by government is especially problematic because of its secrecy, enforced by law.
We are not allowed to know the rules which govern how it is obtained; we cannot challenge in the courts the right of government to obtain it; even the law which allows the government to obtain it, and the proceedings of the court which oversees that law are secret. And if the information is then used against our interests, that use is also likely to be kept secret.

[Turbulence]

I don't think this is what anyone was suggesting or that it's necessary for what anyone was suggesting.

I'm super confused. Cellphone manufacturers are ideally placed to sell personal location data. They put software on cellphones. They can easily make cellphones send them your location data. After all, your phone can triangulate its position from tower signal strength indicators just as well as the telco can.

I see people insisting that there's lots of money to be made by selling this data. And cellphone manufacturers can easily get at it. LJ suggested that telcos haven't jumped into the personal location data selling business because they're monopolies, but cell phone manufacturers are not monopolies and can get at the same data just as easily, so why haven't they?

I get that you might never have thought that HTC or Apple would setup a store that allowed anyone to bid on your personal location data. But the only thing that's stopping them is the exact same thing that is stopping Verizon or Facebook: the fact that there's no money to be made doing that and that half their customers would disappear overnight.

If you think this scenario is completely impossible, what thing makes it impossible that doesn't apply just as well to telcos or to Google/Facebook or to any other entity?

[hairshirthedonist]

If you think this scenario is completely impossible, what thing makes it impossible that doesn't apply just as well to telcos or to Google/Facebook or to any other entity?

I don't think it's completely impossible. I don't claim to have that level of knowledge of the present, past or future.

What customers would do today isn't necessarily what customers will do some number of years from now. I agree that putting all of your comings and goings online for others to see is creepy. I was born in the late 60's. What people who were born 30 or 40 years after me will think about such things 30 or 40 years from now might not be the same as what I think about them today.

You can spice up what people are writing by adding things like "suddenly" and "completely impossible" if you like, but it's not the most straightforward way of discussing things.

[liberal japonicus]

I mean, if you walked into a store and they took your picture and then put it in their advertisements without your consent, you'd certainly be able to fight them in court and win. If they installed invisible microphones and recorded your private conversations and tried to sell them or blackmail you, you'd also have a good case.

So? What does that have to do with knowing where you are? Nothing really. While it is still not completely decided, it seems to me that the Kerr piece points to what is happening and that case against the GPS transponder is going to be an anomaly. Of course, you can claim that I'm suggesting mini drones in your bedroom, but I'm not, and if you don't realize that, you really should re-read what I wrote. As russell said

Stuff that is inherently public is generally not considered to be covered by the 4th Amendment. So, if you have a conversation on a street corner and the cops listen in, it's not considered to be a private communication, so the 4th doesn't apply.

Likewise, your location in any public place is not private information. If a cop could follow you (assuming the availability of a cop to do so) then the 4th doesn't apply.

As Ugh notes, this presumes the availability of a policeman, but I'm not sure how they are going to add that as a possible consideration in jurisprudence.

I'll give you $1000 right now if you tell me where I've been online for the last 30 days. Seriously, I'll write you a check. This is easy, right? No one has any privacy online, right?

If you can tell me where I said that no one has any privacy online right now, it might help me to understand what this has to do with anything. I mean, I did write

Right now, they might have to put some mental elbow grease to the task, but in 5 or 10 years, I don't think that will be the case.

How 5 or 10 becomes 'in the past 30 days' I really have no idea.

People switch mobile phone carriers all the time. They switch handset manufacturers all the time. They even switch phone environments (from Apple to Google to Microsoft).

First of all, I'd be interested in how many people here have switched phone carriers. Have you, Turb? How many times in the past year?

Perhaps Japan is an outlier, but when Mobile Number Portability was introduced to Japan, the main company, Docomo, went from 52143700 to 52126200 subscribers. This doesn't seem like "people switching all the time", but maybe you have some data for the churn rate in the US. And it seems to me that because you have smaller companies that get nationwide coverage because of roaming agreements, you are depending on the current state of competition to provide you with your protection.

explain to me how companies can monetize this data without alienating their customer base.

Just because Target slips up by sending out notices for diapers to pregnant women doesn't mean that every thing anyone is ever going to do is going to necessarily alienate the customer base. How many parents would like to know where their kids are all the time? How many folks would like to know where their friends are when they happen to be downtown? Do you think providing those things would alienate people?

Your argument seems to be that things are going to stay the same because things have always been that way. How do you know that people are always going to have phones? What if google glass gets a phone built into it? Or Apple makes a watch that works as a phone on wireless? The exchange students here all bought iPods and installed Skype, because it was a lot cheaper and they could use the uni wireless. The only thing that is preventing something like that from happening nationwide here is the lack of nationwide wireless and the fact that there is a legacy network of phones. It is that legacy that you are counting on to keep your privacy, but it seems to me like a pretty flimsy barrier. Of course, if it were 'easy', I'd be buying the Washington Post right now. But 15 years ago, I'm sure you'd would have been asking me if it was so easy to put book stores out of business. I'm not sure if it was easy, but the possibility was there.

At any rate, I don't think I am alone in holding some of the notions here, so I'll leave it there as you seem to fixated on the present moment. Enjoy it while you can.

[Turbulence]

What customers would do today isn't necessarily what customers will do some number of years from now.

OK, but why do we think this will change? Will human nature change?

I mean, this technology you're worried about exists right now and no one uses it. Because they find it creepy. Why should that change? If you're going to insist that some change is inevitable or likely, then the onus is on you to explain why.

I agree that putting all of your comings and goings online for others to see is creepy. I was born in the late 60's. What people who were born 30 or 40 years after me will think about such things 30 or 40 years from now might not be the same as what I think about them today.

Just as an aside, I think there's some confusion here. When people post lots of information about their comings and goings to Facebook, that's not as public as you think. First the information is generally written as text which is extremely difficult for machines to parse. If you need a human to read people's facebook feed to extract location information, that's not a scalable business. And while automated information extraction is a field, there's no reason to expect major advances there in the coming years. Secondly, you can't actually harvest facebook feeds efficiently. I mean, if you try and write an automated bot that crawls facebook extracting data, they'll shut you down. Very fast. So while it looks to you like people are broadcasting these very intimate details to the world, they're actually not in some very important ways. The fact that the data can't be aggregated and can't generally be made machine-friendly is really very helpful.

So? What does that have to do with knowing where you are? Nothing really.

LJ, you wrote "You don't have a right to be private when you travel to the store" and that is just flatly wrong. Your privacy rights don't disappear when you enter commercial establishments.

If you can tell me where I said that no one has any privacy online right now

Sure thing. You wrote "it should not be surprising that if you don't want someone figure out what you've been doing online, your basic choice is to just stay offline". That implies that if you stay online, then someone can easily figure out what you're doing online. After all, you claimed that "internet turns every place into a village" and that there's no anonymity in villages, right?

Now, I think that claim is just wrong. But perhaps you're right. So prove it: tell me which internet sites I've visited.

Right now, they might have to put some mental elbow grease to the task, but in 5 or 10 years, I don't think that will be the case.

$1000 buys a lot of elbow grease. Heck, $100 does. So spend a $100 finding out this information and pocket the extra $900.

As for your 5 or 10 years bit, you didn't write that "in 5 or 10 years, the internet will become a village and then there'll be no anonymity". You wrote that it has happened now. If you think this is going to change in 5 years, you need to explain why. Because I do internet work for a living and there's really no reason at all to believe that this is going to change significantly in 5 or 10 years. Just none.

First of all, I'd be interested in how many people here have switched phone carriers. Have you, Turb? How many times in the past year?

I did it two years ago. It was painless. I've thought about it switching again but I couldn't get a better deal, so I didn't. If my telco was selling my location data to private companies though, I'd switch in a heartbeat.

Could you please flesh out your claim about phone companies and switching because I'm thoroughly confused about what you're trying to say. American companies have been extremely careful to not sell personal location data. I claim that if some companies did that, their customers would flee. Since no telco (or handset manufacturer) has done that, comparing switching rates in the US and Japan doesn't tell us anything useful. That I can see.

How many parents would like to know where their kids are all the time?

A lot I imagine. And that's fine because they're paying for the service and they're consenting.

How many folks would like to know where their friends are when they happen to be downtown?

The relevant question is how many people want their friends to be able to track their movements. And the answer is...almost no one. There's a reason why no one is making money in this space. And honestly, broadcasting your location to your friends at all times is a really dumb way of solving this problem. Instead, people just use twitter or SMS.

But let's say that lots of people want to do checkins and share their personal location with their friends...how do you monetize that? It costs money to run this service so how do you make money from it?

Do you think providing those things would alienate people?

I think that providing those sorts of services is irrelevant to the discussion. I mean, opt in services where people carefully limit who gets to see their location data don't really worry me because they're always going to be a niche market and people care a lot about privacy. Have you seen the privacy controls on Google Latitude or equivalent products? Moreover, people will run screaming if the data is made more broadly available: how many people who want to track their kids will continue to do so if the highest bidder can login to a web site and track their kids too? I'm thinking...zero.

Now, does having even that data available to companies make it more likely to get to the NSA? Maybe, but again, the NSA can legally get much more data and much better data already, so why would they want a crappier more limited data set? It just doesn't make sense. The people you really want to trace aren't going to enable 'share my location with my friends'.

It is that legacy that you are counting on to keep your privacy, but it seems to me like a pretty flimsy barrier.

No, that's not true. I think what's going to ensure my privacy is that people actually care about privacy so that (1) companies recognize that destroying privacy will ruin their business and (2) the fact that's just not much money in selling people's personal location data.

I'm still wondering: why isn't Samsung or HTC or Apple selling my location data. I've got a Samsung phone running Samsung software. People have claimed that there's lots of money to be made from selling this data (monetization is easy!) and Samsung can trivially get this data...so why aren't they? Is it the goodness of their hearts? Is Samsung corporate HQ just much much dumber than your average english teacher in Japan?

[sapient]

Regarding things changing, electronic communications weren't protected by the Fourth Amendment until the 1960's. Katz was a huge extension of the understanding of the Fourth Amendment, which was previously held not even to protect someone from having someone trespass on their property and spy on them. Reading Justice Black's dissent in Katz, and the cases that Katz overruled, is very illuminating.

Contrary to what russell believes (and in response to him), I value privacy and confidentiality (even the ability of State Department officials to make confidential observations to colleagues without having them published to the world, for example), and am glad that the Fourth Amendment was expanded to prohibit electronic eavesdropping (although I'm just as worried about spying by private entities as by government). But I'm not terribly offended by the prospect of the NSA collecting external cell phone information. If the DEA is lying to courts, that's extremely wrong, but it's hard to tell from what's been reported that such a thing is happening. (Jay Carney assures us that the Justice Department has begun an investigation into this story, so I hope we know more.) I think it's premature to think that rights are being violated here.

Speaking of confidentiality (and secrecy), criminal investigations should be confidential through the Grand Jury process, and until the time of trial. Even then, it's typical for courts to examine some evidence in camera (with attorneys present) so that large-scale investigations aren't compromised.

[hairshirthedonist]

If you're going to insist that some change is inevitable or likely, then the onus is on you to explain why.

It's not important enough for me to insist on it. You're right. I was wrong.

[russell]

Contrary to what russell believes (and in response to him), I value privacy and confidentiality

Do you agree with this:

people living legally in the US should be able to converse with each other by phone, email, IM, or text with a reasonable assumption that, absent a lawful order specifically naming you as a target and giving the reason why you are a target, neither the feds nor law enforcement will be listening in, either in real time or after the fact.

[sapient]

people living legally in the US should be able to converse with each other by phone, email, IM, or text with a reasonable assumption that, absent a lawful order specifically naming you as a target and giving the reason why you are a target, neither the feds nor law enforcement will be listening in, either in real time or after the fact.

Yes, generally. And as far as I know that's what's happening.

[sapient]

Hendrik Hertzberg provides commentary on the subject that describes my views pretty well.

[sapient]

Also, I found this description of the differences between the NSA and DEA programs helpful.

[russell]

The Hertzberg piece was pretty good, and a fine statement of why he doesn't think we're becoming a police state.

The second piece, also fine, and a reasonable description of the difference between NSA and DEA SOD operations.

But we don't have to be a borderline police state for there to be a problem.

Kindly re-read the sections in the second piece entitled 'Disclosure to the accused' and 'Oversight'.

I'll also point out that the NSA is, straight up, not supposed to be monitoring the communications of US persons in the absence of a FISA warrant to do so.

[sapient]

Kindly re-read the sections in the second piece entitled 'Disclosure to the accused' and 'Oversight'.

I read them the first time, and reread them at your request, and still don't see (necessarily) a problem. It really depends on what they're actually doing, which to my mind is unclear.

the NSA is, straight up, not supposed to be monitoring the communications of US persons in the absence of a FISA warrant to do so

Could you state what specific actions the NSA is taking that exceed its authority?

[russell]

still don't see (necessarily) a problem.

This part:

A document reviewed by Reuters shows that federal drug agents are trained to "recreate" the investigative trail to conceal the SOD's involvement. Defense attorneys, former prosecutors and judges say the practice prevents defendants from even knowing about evidence that might be exculpatory. They say it circumvents court procedures for weighing whether sensitive, classified or FISA evidence must be disclosed to a defendant.

And this part:

the spokesman said he didn't know whether lawmakers have been briefed on how tips are being used in domestic criminal cases.

Could you state what specific actions the NSA is taking that exceed its authority?

If they're spinning off information about US persons, in the US, to the DEA, then they're outside of their mission.

[sapient]

The "recreation" might be a problem, but it might not. It depends on how the material is used. Remember, the evidence that they're using has been collected with a warrant (or otherwise legally). If they use that as a "tip" but then use additional legal evidence in order to build a case, not lying to the court in any way, I'm not sure that's a problem. I don't know that it's absolutely necessary that the prosecution bring forth every single fact they know about the defendant. For example, what if a cop saw me leaving a bar. In his own mind, that's what tips him off that I'm drunk. I get into my car and start driving weirdly. He testifies that he stopped me because I was driving weirdly, and doesn't mention that he started following me because he saw me leave the bar. Is that a problem? I don't think so.

Some people seem to think what's going on violates a defendant's rights, and maybe they are correct, but I think we'd have to look at a case.

And, sure, oversight. But we don't know what kind of oversight there is or isn't. I suppose that's the reason the Justice Department is looking into the matter.

As to the NSA spinning off information, it doesn't seem like that's the database that's being used by the DEA. Sure, it's a problem if the Feds are misusing the information, just as there's a problem if they're drinking on the job. We have no evidence of any of that.

[Nigel]

As to the NSA spinning off information, it doesn't seem like that's the database that's being used by the DEA.

It doesn't ?
"...The unit of the DEA that distributes the information is called the Special Operations Division, or SOD. Two dozen partner agencies comprise the unit, including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security."

We know from recent leaks that the NSA does indeed pass information (not relating to terrorism) on US citizens to other law enforcement agencies, presumably including the DEA.

The "recreation" might be a problem, but it might not. It depends on how the material is used. Remember, the evidence that they're using has been collected with a warrant (or otherwise legally)

There is no basis for anyone outside the agency knowing the information is collected with a warrant (or indeed, if the 4th Amendment has any meaning, 'otherwise legally').
The means by which the information is collected is classified. Depending on which 'partner agency' it's coming from (eg the NSA), the law governing its collection is also classified.

The "recreation" is a problem because it is a system specifically set up to exclude any scrutiny (or even knowledge) of how information is obtained.

[Nombrilisme Vide]

@Turb:
First the information is generally written as text which is extremely difficult for machines to parse. If you need a human to read people's facebook feed to extract location information, that's not a scalable business. And while automated information extraction is a field, there's no reason to expect major advances there in the coming years.

I'm rather curious as to your basis for this assertion. As someone who studied language technology (indeed, someone whose area of research was automatic derivation of semantic structures), I see no reason for your conviction that "no major advances" should be foreseen in extraction any time soon. The area has grown enormously over the past decade or so, and while I've been out of the loop from it for the past four years, it didn't appear to be sputtering out...

(This aside, I'd agree that FB postings aren't overly fertile grounds for the harvesting of location data.)

[Nombrilisme Vide]

*First [...] years

Stupid HTML, grumble grumble.

[sapient]

Nigel, you're behind:

From one of the links above: "The SOD forwards tips gleaned from NSA intercepts, wiretaps by foreign governments, court-approved domestic wiretaps and a database called DICE to federal agents and local law enforcement officers. The DICE database is different from the NSA phone-records database. DICE consists of about 1 billion records, and is primarily a compilation of phone log data that is legally gathered by the DEA through subpoenas or search warrants.

In other words, it's information legally gathered. I guess you also missed the discussion about how the information is used. Unless you've read the case law, do you really know what you're talking about here?

[russell]

For example, what if a cop saw me leaving a bar.

It's completely reasonable for a cop to be watching who goes into and out of bars.

A nearer analogy would be:

You have a cousin who lives overseas.
Your cousin talks on the phone with someone, also overseas.
The NSA is interested in that other person.
Your cousin, in a conversation with that person, mentions that you like to get high and you deal a little to pay for your habit.
The NSA hands that tidbit to the DEA.
The DEA come to your house.

That's the scenario.

Nobody's complaining about your local cop seeing you leave a bar, drive poorly, and then pulling you over.

it doesn't seem like that's the database that's being used by the DEA.

And where do you suppose the information in the DEA's database comes from?

[russell]

In other words, it's information legally gathered

By an organization whose mission specifically excludes them spying on US persons, or in the US.

In the case of the NSA, it's information gleaned from signals intelligence that would be inadmissible if it was not gained via a warrant based on probable cause.

And it's information whose origins is deliberately obscured by the folks who use it so as to make it appear that it was gained through other means, making it difficult or impossible for folks against whom it is used to challenge it.

[sapient]

That's the scenario.

That's your scenario. That's not THE scenario. We don't know what the scenario is. One of the links I cites states that the DEA database is "primarily a compilation of phone log data that is legally gathered by the DEA through subpoenas or search warrants"

In other words, a cop has a search warrant to search your house. She findsall kinds of evidence of a drug ring including a whole lot of people. Those people's names are saved in a database. That is perfectly legal and appropriate. That's the database.

"Nobody's complaining about the cop ..."

The analogy was a fiction but let's elaborate: What the cop was doing may have been perfectly legal, but say the community doesn't really like it that cops hang out in the restaurant community in order to follow people around. Maybe the program of cops hanging out looking for people leaving is "secret" so that the restaurants don't get upset. The point is that if the original action of the DEA is legal, it doesn't matter if they find other evidence to bring to court. It matters if the DEA starts manufacturing evidence. But nobody has to explain whether they have a "hunch" or some other reason for instigating an investigation, as long as it's legal.

[sapient]

"By an organization whose mission specifically excludes them spying on US persons, or in the US."

I think it really involves whether the NSA gathered the information in a manner that comports with the Constitution.

Sure - all of this is totally subject to investigation and court decisions. But considering that very few people here know anything about the law, not to mention the role of the prosecutor (except, of course, criticizing prosecutors for not nailing rich people hard enough), it's really rich to have these armchair examinations of prosecutorial misconduct.

Not to say that it's not going on. The evidence is, so far, fantasy.