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August 05, 2013

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

I find it somewhat unhelpful.
For example:
"NSA: Much of what the agency does remains classified, but Snowden's recent disclosures show that NSA not only eavesdrops on foreign communications but has also created a database of virtually every phone call made inside the United States.
SOD: The SOD forwards tips gleaned from NSA intercepts..."

Where is the distinction ?

And misleading:
"If prosecutors intend to use FISA or other classified evidence in court, they issue a public notice, and a judge determines whether the defense is entitled to review the evidence. In a court filing last week, prosecutors said they will now notify defendants whenever the NSA phone-records database is used during an investigation..."

We know from the Reuters story that if defendants end up in court as a result of classified information passed on to law enforcement agencies such as the DEA, the likelihood is that prosecutors will never even know owing to 'recreation' or 'clean teaming'.

I don't think that the US is a police state, either. Nor do I think it is likely to become one anytime soon.
I do believe that it has (probably for the best of motives), slowly begun to assemble parts of the apparatus necessary for one.

By the way, russell, if you're so conversant with the NSA mission and its legislative constraints, could you please provide citations? I try to do it for my assertions.

By the way, russell, if you're so conversant with the NSA mission and its legislative constraints, could you please provide citations?

The NSA's mission is specified in Executive Order 12333, December 4 1981, as amended by Executive Orders 13355 and 13470.

The proscription on wiretaps and other signals eavesdropping on US persons without a warrant (either regular or FISA) is per the 4th Amendment.

Did you click on the link by any chance to this? Yeah, sure, David Simon is a tv guy now, but he was a reporter where the drug war is (in other words, the DEA). Take a look.

Nigel, which Reuters story? The problem with the [two or three] Reuters stories is that there are a lot of questions and not so many answers.

We know from the Reuters story that if defendants end up in court as a result of classified information passed on to law enforcement agencies such as the DEA, the likelihood is that prosecutors will never even know owing to 'recreation' or 'clean teaming'.

We don't know anything because, sadly, all the defendants are pleading guilty. All we know is what some people say. We, basically, know nothing.

That said, the Justice Department is investigating. So maybe, just maybe: Benghazi!


The proscription on wiretaps and other signals eavesdropping on US persons without a warrant (either regular or FISA) is per the 4th Amendment.

Is per case law interpreting the 4th amendment, which is recent, voluminous, and complicated.

Just a high school civics lesson, russell: Executive Orders don't create a mission for an agency. Congress does that through statutes.

However, looking at the executive orders you cited, I see no reference to the NSA's mission specifically excluding them from spying on US persons, or in the US. Maybe you could quote the language, because my search tool doesn't find anything about "spy".

I'm happy to be wrong, and sorry to put you to the trouble if I am wrong.

russell, you might take a look at the NSA website faq:

"SIGINT involves collecting foreign intelligence from communications and information systems and providing it to customers across the U.S. Government, such as senior civilian and military officials. They then use the information to help protect our troops, support our allies, fight terrorism, combat international crime and narcotics, support diplomatic negotiations, and advance many other important national objectives."

In other words, (sorry for a separate comment), stuff is given to the DEA for international drug crime enforcement.

You don't like? Write your Congressman.

Turbulence, your ability to misread and misstate my positions is far beyond the ability of this English teacher to correct.

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.

In other words when the cops act just like the criminals, you have no problem telling who the good guy is because you can see which one has a badge.

I don't get that mindset at all. I'm a law and order conservative - I want the criminals punished whether or not they've got a badge.

"I don't think that the US is a police state, either. Nor do I think it is likely to become one anytime soon."

I think we're gradually becoming a police state, slowly enough that our definition of a police state is being continually altered to avoid the conclusion we're becoming one. And that what the government gets away with doing today would have caused riots twenty years ago.

Just a high school civics lesson, russell

Thanks for the tip.

I'm with Brett, more or less. We're becoming, not a police state maybe, but a total surveillance state.

The NSA was created, and exists, to do signal intelligence gathering in support of national security.

Now, they are also passing along information to the DEA, which is an organization tasked with enforcing domestic drug laws.

I'll leave for the moment aside the generally FUBAR nature of domestic drug laws.

And because all of that is sketchy to say the least, they have developed, documented, and train their people in methods and procedures for obscuring the source of the intelligence.

This is not 'a cop watching you leave a bar and then drive poorly'. This is a collection of agencies created for the purposes of gathering intelligence on foreign actors, and being therefore free from the constraints of the Bill of Rights, now using their capabilities to pursue domestic criminal activity.

And deliberately hiding that fact.

All of that either strikes you as not so good, or as just fine.

I'm in the not so good camp, you sapient are in the just fine camp.

End of story, from my point of view.

The David Simon articles argues by analogy that a time limited, local and court warranted surveillance of a number of phones is equivalent to the bulk collection of essentially all electronic communications for an indeterminate period.

Not convinced.

Why the NSA website FAQ is supposed to be persuasive is quite beyond me.

What they do is classified.
What they admit in public does not define what they do - as Sen Wyden, a member of the Senate Intelligence Committee recently stated, there are two sets of law governing intelligence, one public and the other classified.
I think he is better qualified (and better informed) to determine whether that is a matter for concern than either of us.

Or indeed David Simon.

It's 114 comments down, I'm feeling discouraged, but this is why spying is such a big deal!

Information doesn't smell. It doesn't come with a pedigree. Wikileaks rely on that, but they aren't the only ones. It's easy to pass someone information in a way that they don't know where it comes from - in some cases, it may even be possible to make it look like it came from somewhere else, or even like the target found it himself.

Think of what that means for blackmail. The NSA could take any political race in the US, and feed "opposition research" to their favored candidate. They could conceal it completely, or they could conceal it enough to make it deniable, but suspected by the candidate. It doesn't take a big conspiracy to pull off either, because one person can do it with a search in one of their now revealed systems. With no more than a one-line justification which will likely never be read (and if you're someone important at NSA, you can probably skip that too).

Think about the political candidate, who is offered information that could help him immensely, and he suspects (but can't prove) that it comes from the spy agencies. Will he lunge at it? If he does, the agencies have won themselves another defender, because he will have to in order to cover his own ass. This is how spies turn people - not with threats, but temptation, and ensnaring you into complicity that you can't back out of.

But of course, there are threats too. Whether the politician takes the bait or not, he will suspect (but not be able to prove) that the agencies could make the same offer to his opponents, or anyone - they could place serious obstacles in your path, whether it's health care reform or personal wealth or whatever. Complaining about it is useless, it will just make you look like a nut and a sore loser.

This is why we can't permit this level of information asymmetry in a democracy. I don't know to which degree the agencies (in your country or mine) do what I describe, but the very fact that they can makes them a far more dramatic threat to liberty than any of the threats they supposedly guard against.

Nigel, what is the state of play for this sort of thing in the UK? Reading about Snowden in the Guardian often discussed a lot of the US situation, but I didn't get a good idea of what governs the intercepting of communication in the UK.

State of play in the UK is similar in many ways (though at least we don't have secret courts and secret law). Indeed, as I remarked above, the US funds GCHQ quite heavily, presumably because it can do some stuff the NSA can't.

These are the laws governing interception of communications:
http://en.wikipedia.org/wiki/Intelligence_Services_Act_1994
http://en.wikipedia.org/wiki/Human_Rights_Act_1998
http://en.wikipedia.org/wiki/European_Convention_of_Human_Rights
http://en.wikipedia.org/wiki/Regulation_of_Investigatory_Powers_Act_2000

Some glaring differences in terms of possible consequences are the number of people we imprison (the US locks up nearly 5 times as many people per capita); that we don't claim the power to indefinitely detain without trial; that assassination remains illegal.

The Data Protection Act is also relevant, of course:
http://en.wikipedia.org/wiki/Data_protection_act

I'm with Brett, more or less. We're becoming, not a police state maybe, but a total surveillance state.

Our society is now hugely dependent on electronic information. It could be seriously damaged by cybercrime or foreign government hacking. Does anyone think that many of the scenarios that Harold describes can only be accomplished by the NSA? To say that the government is the only entity that should have hands off of information is ridiculous.

though at least we don't have secret courts and secret law No?

Secrecy in government is dangerous. I am not going to argue that our laws or our government are perfect, and I wouldn't mind seeing some changes. But we live in a dangerous world, and I'm not willing to strip government of an efficient means to search for perpetrators of terror, as long as there are safeguards. Unlike people who believe that good citizenship means being a full-time government critic, I'm not going to assume that the government is rolling over our rights whenever I read a few paragraphs with the words "intelligence" in them somewhere. I've said before that if prosecutors or DEA agents are lying to courts, that's a grave problem. We really need to know more about what's happening here, and an investigation is happening. What's your solution? Tear down the government now?

Just a high school civics lesson, russell: Executive Orders don't create a mission for an agency. Congress does that through statutes.

And I'll see your civics lesson, and lob a history lesson right back at you. The NSA was created by (then-TS) Executive Order under Truman. Its mission was created therein. As far as public statutes are concerned, there is no defined mission for the NSA, and it cannot be compelled to reveal the mission given to it by its governing directives.

But you already know that, don't you?

Given that you've stated that you looked at the relevant chunks of the US Code, I'm inclined to wonder why you above demanded citations for the mission statement of the NSA, and limits therein. Or rather, I'm inclined to wonder if you asked in good faith.

We don't know anything because, sadly, all the defendants are pleading guilty. All we know is what some people say. We, basically, know nothing.

If the DEA doctrine is to conceal use of SOD material, how do we actually know all the defendants are pleading guilty? That seems a rather bold assumption.

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.

Your restaurant analogy wanders rather far afield. Let's try this. The local narcotics squad enters the houses of people around town with Central American relatives and plants cameras. They use them to spot someone using and selling drugs. Then, acting on these "hunches", they focus investigations on them until they produce enough evidence through "conventional" police work to arrest them - say, they have an undercover agent approach the subject and make a buy off of them. Going into the trial, they never mention the cameras or otherwise discuss the source of their "hunches". I'm sure your first objection will be that the cameras are illegal. However. You're also - quite incredibly - arguing that the NSA's purview includes (directly) collecting intelligence on US residents (implicitly, doing so w/o the quaint nicety of a warrant, since we're talking about covering up the electronic eavesdropping entirely even if it leads to a conviction).

Go read FISA of 1978* and its amendments in 2008. Then come back and explain exactly how you mean to justify your claim that the NSA is permitted to spy on US nationals. Please do not simply assert that any such spying occurs pursuant to a FISA warrant - we are, after all, discussing DEA directives that instruct agents to behave in a manner that would evade the FISA disclosure requirements. And please please please do not simply repeat your assertion that they only use wiretaps from DEA warrants based on that citation from the Simon article that you purport to demonstrate that the SOD is forwarding warranted wiretap data - for someone chiding others for not making citations and/or not reading them once you've made them, you're doing a frightful job of reading your own citations. Let's have a look at that one, shall we?

The SOD forwards tips gleaned from NSA intercepts[1], wiretaps by foreign governments[2], court-approved domestic wiretaps[3] and a database called DICE[4] 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. [emphasis added]

So the article cites four sources of tips. [3] is definitely A-okay. [2] may or may not be. [1] is the one you very, very, very much want to pretend isn't there. And [4] is the one you hitched your star to in order to chide poor, simple Nigel - but it's not saying what you told him it said. It does not say DICE is comprised of subpoenaed/warranted data. It says it's primarily comprised of such, and remains mum on the rest of its contents. That's okay, though. You're not at all an unbiased source, but you're making a pretense of being one. So it's perfectly fine for you to cherrypick your sources to carefully reach the conclusions you decided on before you started "researching".

* And the fact that I'm citing FISA is relevant 'cause, well, it's kinda the only way the NSA has authority to monitor US persons (not citizens, PERSONS). Well, unless we want to return to Bush II's Unlimited CoC justifications. Behold 50 USC § 1812:

(a) Except as provided in subsection (b), the procedures of chapters 119, 121, and 206 of title 18 and this chapter shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, or electronic communications may be conducted.

(b) Only an express statutory authorization for electronic surveillance or the interception of domestic wire, oral, or electronic communications, other than as an amendment to this chapter or chapters 119, 121, or 206 of title 18 shall constitute an additional exclusive means for the purpose of subsection (a).

(The title 18 citations are all in re: warrant-based wiretaps, BTW.)

at least we don't have secret courts and secret law No?

Secret law - no.
The Justice & Security Act 2013 is obnoxious, but (unlike rulings of the FISA Court) it is not a secret.
Its provisions are public, and may, and I hope will, be challenged under the HRA.

Secret courts - not exactly.
The "closed material procedures" established by the Act are again, obnoxious, and will mean that parts of the proceedings in civil cases can be heard in secret, and evidence presented kept secret from the plaintiff. What it will not mean is that court rulings are kept secret (again, unlike the FISA Court).

I would agree entirely with the sentiments expressed in this letter:
http://www.theguardian.com/law/2013/jun/26/secret-courts-act-into-force

Tidbit more detail on DEA guidance for parallel construction (by way of the IRS). There are things both reassuring and troubling therein, but not much either way. It still is what it is.

your claim that the NSA is permitted to spy on US nationals.

Where did I claim that?

When Truman informally "created" the NSA, it was under the legal framework of the (statutorily created) Department of Defense. The legal authority of the modern NSA has been created by Congress in a series of Public Laws. Click notes. And yes, Executive Orders (which are also listed) are promulgated pursuant to those laws. And, of course, the NSA can't be funded without Congress. You'll not see the word "spy" anywhere when looking through these laws and orders.

Regarding your Tidbit more detail link, Nombrilisme Vide, thanks for that. Reading it supports my previous understanding of what has been going on. But maybe that's because I don't read scandal into every piece of news that comes out about the use of information by the government. That said, I'm glad the Justice Department is looking into procedures to be certain that things are on the up and up.

I'm out of here for awhile.

More detail on the NSA spying.

Hmm... reading over 50 U.S.C. Chapter 44 (which I missed when drafting my overly-long and overly-sharp comments last night - if you're still reading, sapient, my apologies for the excessive tone*), I couldn't help notice § 3039:

[E]lements of the intelligence community may, upon the request of a United States law enforcement agency, collect information outside the United States about individuals who are not United States persons. Such elements may collect such information notwithstanding that the law enforcement agency intends to use the information collected for purposes of a law enforcement investigation or counterintelligence investigation.

[...]

The Secretary of Defense shall prescribe regulations governing the exercise of authority under this section by elements of the Department of Defense, including regulations relating to the protection of sources and methods in the exercise of such authority.

The two things I could take away from this is that there's no authorization to collect intelligence (aka "spy") w/in the US for LE (i.e., exception proves the rule), or I could take away that there's nothing that explicitly forbids it. However, given how restrictive §1802 is about targeting surveillance in re: US persons, that latter is a rather large stretch.

Also, surprise! There's no grant of authorization to forgo FISA disclosure requirements mentioned in the instructions for the SECDEF to define procedures to protect sources and methods...

* Although still, Chapter 44 at no time provides any explicit definition of the NSA's mission beyond the following in §3038: "[SECDEF will ensure] through the National Security Agency (except as otherwise directed by the President or the National Security Council), the continued operation of an effective unified organization for the conduct of signals intelligence activities and shall ensure that the product is disseminated in a timely manner to authorized recipients." The details are, unsurprisingly, left out of the public eye.

Nombrilisme Vide, I appreciate your comments very much - I actually learn a lot from arguing in a frenzy, which is why I do it. What other opportunity to I have to I look up statutes regarding the National Security Agency?

I'm taking a break (lurking, rather) for a variety of reasons, but thanks for your thoughtful research. I'll take a more careful look when I have more time.

I grew up in the cold war (and Vietnam) era. I lived in the Washington suburbs where many of my schoolmates' parents worked for the government (as did mine). CIA was a given, and I had friends whose parents may have been CIA. That said, nobody pulled punches, or hid their opinions, or quit smoking pot, or did anything different than any American would do. There was no Stasi. People in the former Czechoslovakia still defected and found freedom in my neighborhood.

A lot has gone down since the '70's, including the Reagan administration (and its Iranian hostage / election coup), the Bush coup in 2000, the Iraq war .... But the idea that the NSA is infringing on the rights of Americans under the Obama administration, IMO, is a paranoid fantasy. We've got the best Executive Department we could possibly hope for.

I just wanted to acknowledge, Nombrilisme Vide, your very generous comment, but I'm going to bow out now for a bit.

We've got the best Executive Department we could possibly hope for.

That's one of the most depressing thoughts I've had all week.

Some interesting - and relevant- history;
http://www.thenation.com/blog/175042/how-powerful-derail-accountability-case-intelligence-reform-part-i
http://www.thenation.com/blog/175082/how-powerful-derail-accountability-case-intelligence-reform-part-ii

It's becoming increasingly clear that the US government will not allow the continued existence of email that it can't read...

http://www.theguardian.com/technology/2013/aug/08/lavabit-email-shut-down-edward-snowden

The email service reportedly used by surveillance whistleblower Edward Snowden abruptly shut down on Thursday after its owner cryptically announced his refusal to become "complicit in crimes against the American people."

Lavabit, an email service that boasted of its security features and claimed 350,000 customers, is no more, apparently after rejecting a court order for cooperation with the US government to participate in surveillance on its customers. It is the first such company known to have shuttered rather than comply with government surveillance....

...Levison said government-imposed restrictions prevented him from explaining what exactly led to his company's crisis point.

"I feel you deserve to know what's going on – the first amendment is supposed to guarantee me the freedom to speak out in situations like this," Levison wrote. "Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests."

And another...

http://www.telegraph.co.uk/news/worldnews/northamerica/usa/10232473/Encrypted-email-service-linked-to-Edward-Snowden-shuts-down.html
Later on Thursday, an executive with a better-known provider of secure email said his company had also shut down thatservice. Jon Callas, co-founder of Silent Circle Inc, said on Twitter and in a blog post that Silent Circle had ended Silent Mail.
"We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now. We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now," Mr Callas wrote on a blog addressed to customers.
Silent Circle, co-founded by the PGP cryptography inventor Phil Zimmermann, will continue to offer secure texting and secure phone calls, but email is harder to keep truly private, Mr Callas wrote...

This will be an interesting case to follow:

http://www.theguardian.com/uk-news/2013/aug/08/privacy-international-challenges-bt-vodafone-gchq
"...The lawyers' letter gives BT, Verizon Business, Vodafone Cable, Global Crossing, Level 3, Viatel and Interoute two weeks to answer questions about their policies on compliance with the intelligence-gathering program. They have also been asked about what legal requests they have received, and about any payments for giving intelligence agencies access for tapping internet cables.
If the firms refuse to comply Privacy International says they will be added as respondents to a legal claim to the Investigatory Powers Tribunal, which is challenging the Tempora program as a possible violation of the European convention on human rights..."

Hi Nigel,
Thanks for those links earlier. I've been googling and reading and I have a few questions for you. Apologies if you aren't in a position to answer them (I don't know what you do for a living) and I'm also hampered by the fact that not only am I not a lawyer, I find the way legal points are presented in UK discussions as requiring a different perspective.

From the guardian link about the RIPA act, it seems that the government can collect information, they just can't use it in court.

Allows the secretary of state to issue an interception warrant to examine the contents of letters or communications on the grounds of national security, and for the purposes of preventing or detecting crime, preventing disorder, public safety, protecting public health, or in the interests of the economic well-being of the United Kingdom. This is the only part of the act that requires a warrant.
• Prevents the existence of interception warrants, and any and all data collected with them from being revealed in court.
• Allows the police, intelligence services, HM Revenue and Customs (and several hundred more public bodies, including local authorities and a wide range of regulators) to demand telephone, internet and postal service providers to hand over detailed communications records for individual users. This can include name and address, phone calls made and received, source and destination of emails, internet browsing information and mobile phone positioning data that records user's location. These powers are self-authorised by the body concerned, with no external or judicial oversight.
• Enables the government to demand that someone hands over keys to protected information; and makes it a criminal offence to refuse to supply actual encrypted traffic or refuse to disclose an encryption key.
• Enables the government to force internet service providers to fit equipment to facilitate surveillance.
• Allows the government to demand an ISP provider provide secret access to a customer's communication.

I've bolded the points that lead me to my thinking, and again, I may be misreading all this, but it seems that UK law allows a much greater level of surveillance than US law.

I know that there is often recourse to the European Convention on Human Rights, and the protection of data under that is quite expansive, but within English law, it seems that there is a much lower level of privacy than what an American would expect. The guardian link also has the criticism that arose when the RIPA act was passed, and I understand it isn't a settled thing. Still, I'm curious how the aspects of the RIPA law above interact with the requirements of the Convention on Human Rights, which your last comment mentions.

UK law allows a much greater level of surveillance than US law.

Actually, everything you bolded has an equivalent in US law right now:

this can include name and address, phone calls made and received, source and destination of emails, internet browsing information and mobile phone positioning data that records user's location. These powers are self-authorised by the body concerned, with no external or judicial oversight.

Seems identical to National Security Letters and the NSA metadata tap.

Note that FISA isn't really a court; it doesn't have many of the properties enumerated in article III of the constitution. Better to think of it as review board or regulatory commission established by congress where congress happens to require that all the commissioners are judges, not unlike the FTC.

makes it a criminal offence to refuse to supply actual encrypted traffic or refuse to disclose an encryption key.

This is how courts interact with internet providers today; you get an order that requires you to turn over data and includes a gag order so you can't discuss it. Hence the use of warrant canaries at services like rsync.net. Whether individuals can be legally compelled to supply their own encryption keys given fifth amendment protections is a somewhat complicated question; different circuits have given different answers in recent years I believe. But in any event, the government can always offer you immunity and then require that you supply an encryption key. At that point, the 5A doesn't protect you and refusal would lead to a contempt of court citation and a lifetime in prison.

to force internet service providers to fit equipment to facilitate surveillance.

I give you CALEA.

Allows the government to demand an ISP provider provide secret access to a customer's communication.

Again, surveillance orders, whether NSL or FISA tend to include extremely strict gag orders that prohibit the company from doing anything to reveal the existence of the surveillance.

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

Posted by: russell

It's part of the authoritarian trend in courts with the Federalist Society - secret police, secret laws, secret courts........

It's becoming increasingly clear that the US government will not allow the continued existence of email that it can't read...

Not really. It is quite easy to have email that the US can't read, but there are costs to doing so. You have to use a traditional email client (like thunderbird) on computer(s) that you control and use an email encryption package like GPG. Anyone that you want to exchange secure emails with also has to use GPG. This is annoying and requires that you spend some time reading and learning about how to use encrypted email. Also, it is difficult to use if the set of people you're communicating with changes (key exchange is hard, which is a good summary of about a third of crypto research over the last 2 decades).

Moreover, you lose some of the convenience benefits of using gmail (or other webmail providers): you can't just login and access your email from anywhere in the world using a web browser and you can't use gmail's search tools. But you can continue using gmail and your gmail address.

A lot of the "secure" email providers (Hushmail and Lavabit and Silent Circle) are extremely suspect: they promise security but they actually can't for architectural reasons (client side crypto is impossible to secure, they provide the code and can change it anytime, etc). I've always been amazed that Zimmerman wanted to associate with any of them.

On the bright side, you can get secure encrypted IM quite easily using standard clients or plugins for OTR. That's kind of cool.

RIPA was given royal assent in July 2000, more than a year before 9-11. The quote that Nigel gave, which was

"This is a ridiculously disproportionate use of RIPA and will undermine public trust in necessary and lawful surveillance."

suggests that the level of surveillance tolerated in the UK was greater than in the US.

Turb: use of warrant canaries

Huh, never heard of that. My guess is that people better hope for a sympathetic judge should the government decide to challenge the practice.

Ugh, yeah, to be honest, it seems a bit silly to me. Sometimes non-lawyers get a bit too fixated when reading the law and forget that law is interpreted by judges who care about the spirit as well as the letter. I wouldn't trust my freedom to the assumption that the government can't legally compel me to lie.

Alternatively, maybe the point is that government agents don't know about the canary (it is not well advertised) and so won't notice when it fails to update. But if they ever find out....

" But the idea that the NSA is infringing on the rights of Americans under the Obama administration, IMO, is a paranoid fantasy."

Of course, even if one had a worshipful attitude towards the current Administration there's always the outside chance that someone less full of godlike moral perfection might inhabit the WH.

Aside from that, most Americans don't have to worry about the NSA spying on them. If they actually could read my emails, all they'd find are some personal gossip, exchanges of cute animal videos (which must constitute most of what the NSA would store if they ever do try to capture everything that goes on the Internet), and the sort of political ranting that I do publicly online.

The people who probably need to worry are potential whistleblowers and investigative journalists. High government officials who wish to leak flattering information to court stenographers at the NYT or Washington Post are probably in less danger. (Though I think there was a story about some investigation into leaks that made Obama look good. I can't recall much about that.)

warrant canaries

After the original USA Patriot Act passed, many libraries adopted a similar practice. They would put a sign on the counter stating that no intelligence or law enforcement agency had requested their records on who had checked out what.

If the sign went away, you knew what was up.

Turb: Ugh, yeah, to be honest, it seems a bit silly to me. Sometimes non-lawyers get a bit too fixated when reading the law and forget that law is interpreted by judges who care about the spirit as well as the letter. I wouldn't trust my freedom to the assumption that the government can't legally compel me to lie.

"Silly" is a good word, judges would probably use "cute." That is, it's "too cute to 'work'". It would, hopefully, turn on the words of the statute,* but you never know.

*Let's assume the Constitutionality of such a statute for the moment.

Sapient,

I am not sure that I would just trust Holder

I wonder if this cooperation could be related to this story.

Summary: private pilot is detained for at least four hours for multiple searches of his plane by DEA, FBI, and Homeland security. They find nothing and finally let him go without explanation. He suspects that someone may have listened in to a cell phone conversation in which he mentioned both an upcoming business deal and that he was planning a stop in Mexico on his return trip. James Fallows links multiple stories of other pilots who have had similar experiences.

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