Legal basis for wiretapping...
CALEA: Communications Assistance for Law Enforcement Act -- United States wiretapping law passed in 1994 (Pub. L. No. 103-414, 108 Stat. 4279).
- To amend title 18, United States Code, to make clear a telecommunications carrier's duty to cooperate in the interception of communications for Law Enforcement purposes, and for other purposes.
According to Wikipedia ... "CALEA was intended to preserve the ability of law enforcement agencies to conduct electronic surveillance by requiring that telecommunications carriers and manufacturers of telecommunications equipment modify and design their equipment, facilities, and services to ensure that they have the necessary surveillance capabilities."
"Common carriers, facilities-based broadband Internet access providers, and providers of interconnected Voice over Internet Protocol (VoIP) service – all three types of entities are defined to be “telecommunications carriers” for purposes of CALEA section 102."
"The driving force in adopting CALEA was the FBI's worry that increasing use of digital telephone exchange switches would make tapping phones at the phone company's central office harder and slower to execute, or in some cases impossible."
"CALEA applies to facilities-based broadband Internet access providers and providers of interconnected (with the PSTN [Public Switched Telephone Network] network) Voice-over-Internet-Protocol (VoIP) services."
With stress on the "legal"...
Again according to Wikipedia... "In the United States, two laws cover most of the governance of lawful interception."
"The 1968 Omnibus Crime Control and Safe Streets Act, Title III pertains mainly to lawful interception criminal investigations."
"The second law, the 1978 Foreign Intelligence Surveillance Act, or FISA, governs wiretapping for intelligence purposes where the subject of the investigation must be a foreign (non-US) national or a person working as an agent on behalf of a foreign country."
The key to almost all use of government-mandated wiretaps requires formalized procedures, many of which require a showing of "probable" cause before a judge with appropriate security clearances. In the case of "Administrative Orders," they must be issued through the Agency's legally-mandated operational procedures.
In every case, the unauthorized interception and disclosure of intercepted communications for political purposes or commercial gain is illegal and subject to severe sanction under the law.
A possible explanation why the common carriers are insisting on "blanket" wiretap immunity...
It has just been learned that one wireless carrier may have provided agencies of the United States Government with unrestricted access to their systems without instituting safeguards that would restrict access to authorized personnel and the necessary usage logging necessary for "oversight" auditing.
And this may explain why the communications carriers are pushing hard for blanket immunity...
According to widely respected technology blog arstechnica.com ...
"Computer security analyst Babak Pasdar says that a major mobile telecommunications carrier has a built-in backdoor that provides an undisclosed third-party with unfettered access to its internal technical infrastructure, including the ability to eavesdrop on all calls through its network. In an affidavit that describes the circumstances and basis for the allegations, Pasdar provides evidence which could indicate that the FBI is on the other side of the secret line, engaging in warrantless surveillance of mobile communications."
"According to Pasdar, the consultants informed him that the Quantico Circuit is supposed to have no firewalls of any kind and no access control—it is given complete access to everything in the carrier's internal network and there is no way to tell conclusively what has been accessed through it. The consultants indicated that they knew who was at the other end of the Quantico Circuit, but they refused to divulge this information to Pasdar."
"When Pasdar insisted that the Quantico Circuit should at least have the minimum level of security access logging if not access control, the consultants called the company's Director of Security, who threatened Pasdar, telling him that he would be replaced if he didn't forget about the circuit and continue with the migration. "
"In the affidavit, Pasdar says that the absence of access control systems and basic access logging for the Quantico Circuit represents a deviation from industry-acceptable use scenarios and notes that such a serious breach of security would generally be considered a breach of organizational policy. He also points out that even the internal offices and systems of the carrier don't have the same level of unfettered access to the network as the Quantico Circuit."
"Although Pasdar has refused to name the carrier, and those working for the carrier who have knowledge of the Quantico Circuit's user aren't saying what they know, Wired's Threat Level blog connected the pieces and points us to the 2006 wiretapping lawsuit against the telcos, which alleges that Verizon 'has engaged and maintained and still does maintain a high speed data transmission line from its wireless call center to a remote location in Quantico, Virginia, the site of a U.S. government intelligence and military base.' The lawsuit also asserts that 'the transmission line provided the Quantico recipient direct access to all content and all information concerning the origin and termination of telephone calls placed on the Verizon Wireless network as well as the actual content of calls.'"
"Providing any third party with unfettered network access to such a broad spectrum of sensitive consumer data would seem to constitute a very clear violation of the Communications Act, which broadly forbids disclosure of such information."
"The lack of access controls and logging undermines safeguards against abuse by enabling the recipient of the data to operate entirely outside the realm of accountability."
"This is particularly disturbing if the recipient of the Quantico Circuit is the FBI, because the agency has a long history of intelligence abuses and has been found to have a serious lack of meaningful internal oversight."
FBI Director testifies to inappropriate behavior...
According to the Washington Post...
"FBI Director Robert S. Mueller III told senators yesterday that agents improperly used a type of administrative subpoena to obtain personal data about Americans until internal reforms were enacted last year."
"Mueller said a forthcoming report from the Justice Department's inspector general will find that abuses recurred in the agency's use of national security letters in 2006, echoing similar problems to those identified in earlier audits."
"Inspector General Glenn A. Fine reported a year ago that the FBI used such letters -- which are not subject to a court's review -- to improperly obtain telephone logs, banking records and other personal records of thousands of Americans from 2003 to 2005. An internal FBI audit also found that the bureau potentially violated laws or agency rules more than 1,000 times in such cases. "
"Mueller testified that a follow-up report from Fine's office, due to be released this month, will 'identify issues similar to those in the report issued last March.' But Mueller emphasized that the time frame in the report 'predates the reforms we now have in place" to avoid further abuses.'"
The President tries to make it about patriotism...
President Bush, in a meeting with National Association of Attorneys General, argued for retroactive immunity.
"There's a lot of legal complexities on the FISA renewal debate, but the real issue comes down to this: To defend the country, we need to be able to monitor communications of terrorists quickly and be able to do it effectively."
"And we can't do it without the cooperation of private companies. Unfortunately, some of the private companies have been sued for billions of dollars because they are believed to have helped defend America after the attacks on 9/11."
"Now the question is, should these lawsuits be allowed to proceed, or should any company that may have helped save American lives be thanked for performing a patriotic service; should those who stepped forward to say we're going to help defend America have to go to the courthouse to defend themselves, or should the Congress and the President say thank you for doing your patriotic duty? I believe we ought to say thank you."
"I feel strongly about this issue, not only because I know we need to have the private carriers available to provide information, but to put it bluntly, if the enemy is calling in to somebody in the United States, we need to know who they're talking to and why they're calling and what they intend to do."
"These lawsuits are really unfair, if you think about it. If any of the companies believed to have helped us -- I'm just going to tell you, they were told it was legal by the government. And they were told it was necessary by the government. And here they are getting sued. It would be dangerous -- the reason -- the danger in all this is that because the private companies are fearful of lawsuits or being besieged by lawsuits, they would be less willing to help in the future."
"If your government has said this is legal, and we want your help, and then all of a sudden they get sued for billions of dollars, you can imagine how hesitant they'll be with future requests. And yet the threat is ongoing. And that's why we said failure by the House to act on the Senate bill would create an intelligence gap that is unacceptable."
President Bush is absolutely correct in his assertion that common carriers should not be held responsible for executing intercept orders which they believed to be lawful. There is no question in my mind that all common carriers should be granted immunity for all intercepts that were carried out in an approved manner.
However, these carriers must be held accountable for providing unmonitored access to their networks and/or being unable to provide time/date/party and the authorization for such intercepts. It would be appropriate, in return for a grant of limited immunity, to demand that they replace or repair any system which does not meet the legal standards for controlling access and monitoring the usage of such facilities. This grant of immunity would not be valid for any intercepts that were executed for prohibited activities such as intercepting political or commercial information. And as punishment for not better controlling their systems, common carriers should be precluded from being allowed to manage or control any Internet network and provide "network neutrality" to all classes of Internet message traffic.
As for certain governmental agencies, those who engaged in unauthorized activities, provided they did not involve political or commercial activities, would be given an administrative reprimand and if caught abusing the system, a jail sentence and a fine.
It's all a matter of trust...
Here in Los Angeles, we have the "private investigator to the stars," Anthony Pellicano allegedly paying police officers and telephone company representatives to facilitate phone taps and the interception of information that could prove useful against people being sued by Pellicano's clients. Subversion of government employees is not unknown, especially in the FBI where a number of high-profile spies have been unmasked in the past few years. And it is widely known in government and corporate security circles that "friends help friends" when information is needed.
People need to trust their institutions...
But people need to trust their institutions to do the right thing. Perform in an ethical manner. Preserve each American's rights under the Constitution.
With the increasing politicalization of American Institutions under the past few presidents, it is now imperative to compel all governmental agencies to adhere to the strict letter of the law. Perhaps as a show of faith to the American public, the Senate will release the unredacted, full and complete Barrett report which details the length to which the Clinton Administration may have compromised the Department of Justice, the FBI and the IRS in protecting former HUD Secretary Henry Cisneros from prosecution. We all saw Presidential Security Advisor Samuel Berger get a slap on the wrist for his premeditated theft and destruction of 9/11-related national security documents -- without obtaining a verifiable list of what was taken.
Perhaps that is why the President and the Congress have such low approval ratings. Not so much from the political process, but because the American public no longer trusts or has any confidence in their leaders, their appointees or the bureaucratic clerks who actually perform the work.
What can YOU do?
Let your elected officials know that you support "limited immunity for the communications carriers." And that the grant of immunity does not extend to the interception of any political or commercial communications unless specifically authorized, in writing, by a judge of competent jurisdiction. And as punishment for their past transgressions, all common carriers as well as the Federal Communications Commission shall be enforce network neutrality where each class of network traffic is provided with the same bandwidth and priority as all other classes for the next ten years.
Do not elect politicians who are shady or have been involved in past chaos and corruption. (Which is pretty much all of them) Start choosing honorable local officials and then push them upward to state and national posts.
Trust that the diversity and goodness of America will prevail over the special interests and evildoers ... but it does require your help. Inform yourself of the issues and speak out on matters of importance.
Do not vote for any candidate or current politician who is willing to subvert the safety, security, sovereignty and economic strength of the United States or limit an individual's right of self-defense for their personal philosophy, power, prestige or profits.
Quote of the day: "Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." -- William Pitt (1783)
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“The key to fighting the craziness of the progressives is to hold them responsible for their actions, not their intentions.” – OCS "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius “A people that elect corrupt politicians, imposters, thieves, and traitors are not victims... but accomplices” -- George Orwell “Fere libenter homines id quod volunt credunt." (The people gladly believe what they wish to.) ~Julius Caesar “Describing the problem is quite different from knowing the solution. Except in politics." ~ OCS
“The key to fighting the craziness of the progressives is to hold them responsible for their actions, not their intentions.” – OCS
"The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
“A people that elect corrupt politicians, imposters, thieves, and traitors are not victims... but accomplices” -- George Orwell
“Fere libenter homines id quod volunt credunt." (The people gladly believe what they wish to.) ~Julius Caesar
“Describing the problem is quite different from knowing the solution. Except in politics." ~ OCS