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December 29, 2005 | It's The End of The Year, Wired News-style
It's the time of year for wrap-ups and lists galore, and this year Wired News did it up right.
Sexiest geeks, best foot-in-mouth moments, best and worst tech moments.
My contributions included this round-up of the most predictable tech stories of the year:
The video iPod: Of course Apple would unveil a portable video player. All the signs were present. As with the music-only iPod, other companies had long been selling similar wares. In fact, Archos introduced a mobile video TV recorder 18 months ago.Apple garnered mammoth media attention in October when Steve Jobs unveiled the company's gorgeous device, which can't record but will happily play back episodes of The Tonight Show that users buy through iTunes for $2 a pop.
Google Maps: In retrospect, how did anyone bear using MapQuest's clunky interface, and why didn't we all realize that dragging a map would feel so good?
Of course, the geniuses at Google recognized that every American's birthright includes not only a search engine that works, but also online maps complete with Ajax goodness, satellite views and adorable pushpins.
I also filed this dispatch about stocking up on gadgets, before they all start shipping crippled:
Post-Christmas sales are a must for bargain hunters, but this year brings a new incentive to stock up on electronics: 2005 might be the last good year to get gizmos that aren't locked down.As the music, television and movie industries move to make more media available online, they are also attempting to keep that content from showing up on peer-to-peer networks or being copied for friends.
They are looking to Congress for help.
Meanwhile, many consumer electronics firms are hobbling their own devices to protect themselves from potential lawsuits or, in the case of Apple, to make money from selling media to those who bought the company's hardware, according to Electronic Frontier Foundation staff attorney Fred von Lohmann.
"We've already seen early examples: ReplayTV was taken off the market after being sued by the television industry," von Lohmann said. "We have never seen a PVR that has offered the same features, like the ability to send shows from one machine to another, automatically delete commercials and a very large hard drive capacity."
Posted by Ryan Singel at 08:16 AM | TrackBack
December 19, 2005 | Something's Happening HereAnd the technology they are using isn't quite clear.
I'm becoming more and more convinced (like Noah) by little notes being hit by President Bush, Attorney General Alberto Gonzales and the Deputy Director for National Intelligence General Michael Hayden that the extra-legal NSA wiretaps ordered by the president are using some new technology.
Or more likely, extending some NSA technological method that is clearly legal outside the United States to bear on certain international calls originating in the United States.
At today's press conference with Gonzales, Hayden hinted that the end-run around the FISA court was done for reasons beyond just avoiding annoying paperwork:
FISA involves the process -- FISA involves marshaling arguments; FISA involves looping paperwork around, even in the case of emergency authorizations from the Attorney General. And beyond that, it's a little -- it's difficult for me to get into further discussions as to why this is more optimized under this process without, frankly, revealing too much about what it is we do and why and how we do it.
When asked why the president didn't ask for Congressional authority for this wiretapping, Gonzales said:
We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program.
Terrorists and dictators already know their communications can and will be tapped. But what technology don't they know about that the NSA is using here?
Hayden also hinted today that the wiretaps involved suspicions below the level of probable cause.
And here the key is not so much persistence as it is agility. It's a quicker trigger. It's a subtly softer trigger. And the intrusion into privacy -- the intrusion into privacy is significantly less. It's only international calls. The period of time in which we do this is, in most cases, far less than that which would be gained by getting a court order.
And is the period of time shorter in most cases, because the net starts very wide and then is narrowed as the eavesdropping continues?
And what does that "softer trigger" mean? That the program relies on some standard much lower than probable cause as applied to an individual? Maybe something like probable cause to believe someone from the state of Virginia is calling a terrorist?
So does the executive order turn the NSA's ears, data-mining supercomputers and real time transcription powers on ALL calls leaving the U.S. that are bound for Pakistan, Afghanistan, Iran, Somalia and Iraq?
If that's the case, then that's the equivalent of the Catholic Church revealing that for the past three hundred years, the Vatican hasn't believed in the Pope's infallibility.
Rule number one at the NSA is don't spy on Americans.
Rule number two at the NSA is don't talk about the NSA.
This story broke because some at the NSA broke rule number two because they think that rule number one was broken.
The other possibility, suggested to me by someone with experience with wiretapping, is that the NSA may have compromised a hardware manufacturer -- say Motorola or a satellite phone manufacturer, a telecom carrier or a satellite(s).
In any of those scenarios, the NSA would not have to intercept any signals since they would be diverted at the hardware level to the agency. Such power might also give the agency the ability to conduct man-in-the-middle attacks on encrypted communications.
This is a huge story, so little is known at this point and so all we are left with is speculation.
Update: I'm even more convinced that some new technology is being used here, besides traditional wiretaps, based on a just-released July, 2003 letter from Senator Rockefeller to Vice President Cheney outlining his concerns about the eavesdropping.
Rockefeller says he isn't a lawyer or a "technician" and that he can't make a judgement on the program because he can't consult with his staff.
Wiretaps aren't that complicated to understand.
Also, Rockefeller said his briefing reminded him of the Total Information Awareness project (defunded for purposes of data-mining citizens' records, but being developed using black-budget funds for overseas data-mining).
That makes me think the project involved some large scale mostly-suspicionless scanning of outgoing communications. Then, the NSA would focus in on targets, and discard other numbers and email addresses, after some technological sifting.
Josh Marshall has posted two-page hand-written letter.
Technorati Tags: nsa, fisa, wiretaps
Posted by Ryan Singel at 09:57 AM | Comments (1) | TrackBack
December 18, 2005 | Bush Wiretaps Supremely IllegalWho says Bush's end run around surveillance laws are illegal?
The Supreme Court.
Back in 1972, the Supreme Court took on a case (where President Nixon ordered wiretaps on individuals suspected of plotting to bomb a CIA building) and ruled that the President's power under the Constitution to defend the country from attacks does not give the executive the power to unilaterally order wiretaps. (US v. US District Court, 407 U.S. 29)
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
As I wrote yesterday, this is not a story about the necessity or propriety of the wiretaps, it's about the method used to order the wiretap, a method that shows complete disdain for the principle of checks and balances.
What did the Supreme Court say in 1972 about this very question?
It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357.The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.
And what does such unchecked surveillance power mean for those who dissent from the Government?
History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. […]
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.
But what about President Bush's argument that the secret and warrantless searches were reviewed by top administration officials and a secret court judge?
The independent check upon executive discretion is not satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions.Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.
Supreme Court decisions remain the highest law in this country.
Despite whatever advice President Bush received from his lawyers, it is clear that the NSA wiretaps he ordered were illegal and set a dangerous precedent.
Related posts and stories worth your time:
- The Washington Post's Barton Gellman's roundup of recent revelations of government spying.
- The Washington Post's Dana Milbank on Congress finally realizing they should actually be watchdogs.
- The L.A. Times's David G. Savage and Bob Drogin on the legality of the wiretaps.
Technorati Tags: NSA, SupremeCourt, Wiretaps, Surveillance, executivepower
Posted by Ryan Singel at 01:32 PM | Comments (1) | TrackBack
December 17, 2005 | It's Not The Crime; It's the RationalePresident Bush admitted today that he circumvented United States law and repeatedly ordered the National Security Agency to wiretap suspected Al Qaeda operatives in the United States. His rationale for the order was that the wiretaps needed to be installed instantly, and he said that the New York Times story that revealed his illegal order damaged national security.
The wiretaps themselves should not be in question. No one, besides Ramsey Clark and his ANSWER minions, would argue that phone numbers and email addresses found on the computer of a captured Al Qaeda member should not be wiretapped. Immediately.
In fact, that's what the law allows.
The government has the power to start such wiretaps immediately, so long as they promptly notify a special court judge and send paperwork to that court with 3 days. All they need to prove is probable cause that the person, whether they be a foreigner or an American citizen, is likely a member of a terrorist group or a foreign agent. That court is highly deferential, and just last year, authorized more than 1,700 wiretaps.
That's why this story is not about the wiretaps, so long as one presumes the administration is working in good faith and not using the wiretaps to monitor American citizens exercising their legal rights. Despite this week's story about the Pentagon monitoring anti-war Quakers, I'm still inclined to believe that the targets are legitimate.
The story is about executive privilege and this administration's belief that its anti-terrorism actions cannot not be curtailed by Congress or the Courts.
Bush is at best misleading the country and at worst, lying, when he argued today that this story undermines national security.
Every gunrunner, would-be terrorist, two-dinar dictator and money launderer knows that the NSA has awesome capabilities and that their emails and phones can and will be tapped.
As Julian Sanchez points out today, no terrorist could possibly care how the wiretap was ordered:
So what kind of plausible difference to our national security could it make if terror suspects who know they might be targeted for eavesdropping with a warrant learn they might be targeted without one?
Bush ordered the wiretaps in violation of the wiretap laws, which explicitly say that any wiretapping in the United States must go through the courts, whether those be traditional criminal wiretaps or the ones designed for spies and terrorists.
His rationale is that he has the power to ignore and supersede the law by fiat, since Congress authorized the use of force against those who committed or abetted the September 11 bombings.
Bush says that the policy is reviewed by Justice Department and NSA lawyers and officials. That may be true, but that's not what the law says should happen. Those are just rules his administration made up.
In fact, under this interpretation of his power -- unlimited, unreviewable power in regards to fighting terrorism --, the McCain amendment prohibiting torture has no meaning. Bush would be above that law. In fact, under this conception of the presidency, there's no need to renew the Patriot Act for terrorism investigations, since he can just issue the regulations himself.
But there's a price to be paid for writing your own rules in order to sidestep paperwork after the fact and the slightest of judicial oversight.
The court that authorizes wiretaps told the Administration that information found in these illegal wiretaps can't be used to get new, legal wiretaps.
Traditionally, counter-terrorism operatives who capture the name and phone number of a yet-unknown accomplice can then go back to the court and use that information to build a chain of legal wiretaps.
But with these extra-legal wiretaps, those agents would not be allowed to do so, because the secret FISA court says that illegal evidence can't be used, according to the New York Times. But the administration is willing to cause problems down the investigative path and break the law SIMPLY to prove the point that it is above filling out forms and having to prove to sympathetic judges that they aren't breaking the law.
That arrogant flouting of the law and the basic tenets of our democracy -- not the leaks from concerned government officials -- are what is dangerous in this story.
For more on how the secrecy argument being floated by the President and the right half of the blogosphere is simply, and historically, wrong, check Adam Shostack's post, Government Secrecy and Wiretaps.
Update: Also, seems that Noah and I are having the same thoughts, but on opposite coasts...
Posted by Ryan Singel at 05:04 PM | Comments (2) | TrackBack
December 16, 2005 | Feinstein: Simply UnacceptableCalifornia Senator Dianne Feinstein (D) on the Senate floor today:
I rise today as a 12-year member of the Senate Judiciary Committee and a 5-year member of the Senate Intelligence Committee. I do so indeed with a very heavy heart. I have had, until now, great confidence in America's intelligence activities. I have assured people time and time again that what happens at home has always been conducted in accordance with the law.
I played a role in the PATRIOT Act. I moved one of the critical amendments having to do with the wall and the FISA court. Today's allegations as written in the New York Times really question whether this is in fact true. I read it with a heavy heart, yet without knowing the full story.
[...]
Section 105 (f) of FISA allows for emergency applications where time is of the essence. But even in these cases, a judge makes the final decision as to whether someone inside the United States of America, a citizen or a non-citizen, is going to have their communications wiretapped or intercepted. The New York Times reports that in 2004, over 1,700 warrants for this kind of wiretapping activity were approved by the FISA Court. The fact of the matter is, FISA can grant emergency approval for wiretaps within hours and even minutes, if necessary.
[...]
I would argue the resolution authorizing use of force [vs. those involved in 9/11 attacks] was not a declaration of war. I read it this morning carefully. It does not authorize the President of the United States to do anything other than use force. It doesn't say he can wiretap people in the United States of America. And apparently, perhaps with some change, but apparently this activity has been going on unbeknownst to most of us in this body and in the other body now since 2002.
The newspaper, the New York Times, states that the President unilaterally decided to ignore this law and ordered subordinates to monitor communications outside of this legal authority.
In the absence of authority under FISA, Americans up till this point have been confident -- and we have assured them -- that such surveillance was prohibited.
This is made explicit in chapter 119 of title 18 of the criminal code which makes it a crime for any person without authorization to intentionally intercept any wire, oral, or electronic communication.
As a member of the Senate Judiciary and Intelligence Committees, I have been repeatedly assured by this administration that their efforts to combat terrorism were being conducted within the law, specifically within the parameters of the Foreign Intelligence Surveillance Act which, as I have just read, makes no exception other than 15 days following a declaration of war.
We have changed aspects of that law at the request of the administration in the USA PATRIOT Act to allow for a more aggressive but still lawful defense against terror. So there have been amendments. But if this article is accurate, it calls into question the integrity and credibility of our Nation's commitment to the rule of law.
I refreshed myself this morning on the fourth amendment to the Bill of Rights of the Constitution of the United States.
Here is what it says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search 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.
Clearly an intercept, a wiretap, is a search. It is a common interpretation. A wiretap is a search. You are looking for something. It is a search. It falls under the fourth amendment.
[...]
There is a procedure, and it is timely.
As a matter of fact, we got into this rather seriously in the Judiciary Committee. At the time we wrote the PATRIOT Act, I offered an amendment to change what is called "the wall" between domestic intelligence-gathering agencies and foreign intelligence-gathering agencies from a “primary purpose” for the collection of foreign intelligence to a “significant purpose.” We had a major discussion in the committee, as is the American way. We were making public policy. We discussed what primary purpose meant. We discussed in legal terms what significant purpose meant.
So this was a conscious loosening of a standard in the FISA law to permit the communication of one element of Government with the other and transfer foreign intelligence information from one element of the Government to the other.
That is the way this is done, by law. We are a government of law. The Congress was never asked to give the President the kind of unilateral authority that appears to have been exercised.
I was heartened when Senator Specter also said that he believed that if the New York Times report is true -- and the fact that they have withheld the story for a year leads me to believe it is true, and I have heard no denunciation of it by the administration -- then it is inappropriate, it is a violation of the law.
How can I go out, how can any Member of this body go out, and say that under the PATRIOT Act we protect the rights of American citizens if, in fact, the President is not going to be bound by the law, which is the FISA court?
And there are no exceptions to the FISA court.
So Senator Specter, this morning, as the chairman of the Judiciary Committee, announced that he would hold hearings on this matter the first thing next year. I truly believe this is the most significant thing I have heard in my 12 years. I am so proud of this Government because we are governed by the rule of law, and so few countries can really claim that. I am so proud that nobody can be picked up in the middle of the night and thrown into jail without due process, and that they have due process. That is what makes us different. That is why our Government is so special, and that is why this Constitution is so special.
That is why the fourth amendment was added to the Bill of Rights -- to state clearly that searches and seizures must be carried out under the parameter of law, not on the direction of a President unilaterally.
So I believe the door has been opened to a very major investigation and set of circumstances. I think people who know me in this body know I am not led toward hyperbole, but I cannot stress what happened when I read this story. And everything I hold dear about this country, everything I pledge my allegiance to in that flag, is this kind of protection as provided by the Constitution of the United States and the laws we labor to discuss, argue, debate, enact, then pressure the other body to pass, and then urge the President to sign. That is our process.
If the President wanted this authority, he should have come to the Intelligence Committee for an amendment to FISA, and he did not.
The fact that this has been going on since 2002 -- it is now the end of 2005. Maybe 8 people in these 2 bodies in some way, shape, or form may have known something about it, but the rest of us on the Intelligence Committees did not.
That is simply unacceptable.
Posted by Ryan Singel at 02:39 PM | TrackBack
December 16, 2005 | Spying on American SoilThe National Security Agency has long prided itself on restricting the use of its awesome snooping powers to foreign agents and foreign countries. Now, according to reports in the New York Times and the Washington Post, the NSA has turned its ears to listening in on American soil, without having gotten judicial approval first.
Instead, according to NSA expert James Risen and the Washington Post's Dan Eggen, President Bush signed a secret order in 2002 allowing the NSA to track communications originating in the United States on up to 500 people at a time.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
Full story in New York Times by Risen.
This is the second time in a week that the government has been shown to be conducting surveillance on American soil without judicial oversight.
Earlier this week, NBC revealed that a Pentagon spying unit was keeping a secret database that included information on, among other groups, an anti-war Quaker group.
The government has long had the authority to wiretap and track foreign agents and spies, through the ultra-secret Foreign Intelligence Surveillance court, which almost never rejects applications and the Patriot Act specifically made these orders easier to get. In 2004 alone, the court authorized 1,754 wiretap orders.
It's also hard to understand how the order was necessary since in a time of war, the FISA court routinely authorizes emergency orders.
Senator Dianne Feinstein, a hawkish Democrat, had this to say today:
In the absence of authority under FISA, Americans have, until now, been confident that such surveillance was prohibited. This is made explicit in Chapter 119 of Title 18 of the Criminal Code, which makes it a crime for any person, without authorization, to intentionally intercept any wire, oral or electronic communication.As a member of the Intelligence and Judiciary Committees, I have been repeatedly assured by this Administration that their efforts to combat terrorism were being conducted within the law - specifically, within the parameters of the Foreign Intelligence Surveillance Act.
In fact, we have changed that law, at the request of the Administration in the USA-Patriot Act, to allow for a more aggressive, but still lawful, defense against terrorism.
I have never been more disturbed than I am by this story. If true, it calls into question the integrity and credibility of our nation’s commitment to the rule of law.
We have always been a nation governed by laws, and these allegations, if true, fly in the face of this bedrock constitutional principle.
I turn your attention to my first real blog post, which argued, ala the 9/11 Commission, that a powerful civil liberties board was necessary to keep tabs on anti-terrorism projects because Congress has failed to do so.
Such a board somewhat exists in name, but it is underfunded, toothless and staffed by non-experts and at least one member with a conflict-of-interest.
Here's what I wrote then and I stand by those words even more today:
Regardless of one's position on the Patriot Act and the necessity of increased anti-terrorism powers, it is impossible to ignore that many people fear that the government is abusing its newfound powers.That perception is only strengthened by the Bush Administration's unwillingness to share information.
How often and for what reasons has the FBI used the National Security Letters provisions of the Patriot Act? That provision gives the FBI wide authority to issue itself administrative subpoenas in order to compel businesses (including ISPs) to provide evidence and business documents to investigators.
How many times has the FBI used that provision? (editor note: The Washington Post reports in 2005 that the FBI has used NSLs some 30,000 times.) We don't know, since the FBI has decided that even aggregate statistics about the use of NSLs are classified. The ACLU, which is suing the FBI over the use of NSLs, has heavily redacted FBI documents that indicate the NSLs are widely used. Now just because they are widely used, that does not mean the FBI is abusing that power.
But how are we to know, given the Attorney General has decided to share as little information as possible? We know how often the government uses regular wiretaps, but that is only because a 25 year old law forces the FBI to report to Congress about how it is using that power every year.
Yet, Congress has been unwilling to require similar public reports about other powers and programs. Their oversight of anti-terrorism programs and powers has been abysmal and the executive branch has continually stonewalled and resisted their meager efforts.
This is exactly why an independent, powerful and balanced civil liberties board is necessary.
There is no real debate that the government should be fighting militant Islamic extremism (which is how I think the government defines the war on terrorism, explicitly excluding domestic right-wing anti-abortion, anti-federal government militants).
If that movement is left unchecked and allowed to grow, millions around the world could lose their lives and liberty to religious extremists who hate modernity.
Our civil liberties, not our economic system, are what should define us as a nation -- the right to petition for the redress of grievances, the right to travel without undue restriction, the right to worship any or no god, the right to be safe in our homes and papers from unjustified government searches, our right to walk the streets without the fear of a cop demanding identification and our right to speak freely in opposition to government.
So to the extent the government needs expanded powers to fight terrorists, so too do we need expanded powers to protect our civil liberties.
For more on this story from a smart lawyer (and a spirited debate in the comments), check Orin Kerr's post.
Posted by Ryan Singel at 11:19 AM | TrackBack
December 11, 2005 | Hacks And Bloggers's Epics on Gilmore EpicKevin Drum at the Washington Monthly picked up on the Gilmore Epic, and has prompted me to post this post-mortem media round-up on Gilmore's hearing on Thursday.
My take, published on Thursday in Wired News:
A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Thursday on tech entrepreneur and internet freedom fighter John Gilmore's challenge to a secret government order forcing airline passengers to show identification or submit to a pat-down search.The hearing pitted a matter-of-fact government attorney against Gilmore's impassioned, podium-banging lawyer, James Harrison, in a closely watched legal battle over government secrecy and antiterrorism measures that has federal officials defending a rule whose existence they will not admit in open court.
Gilmore contends that the policy violates his right to travel and that the additional search of those who don't show ID is a form of punishment.
"When a cop asks you for your ID on the street, you are free to walk away. There is no penalty," Gilmore said outside the courthouse. "If you refuse to show ID at an airport, you can't fly."
In court, Justice Department attorney Joshua Waldman countered that the identification requirement, if it existed, was a minimal intrusion and enhanced airline security.
"The requirement promotes the right to travel by protecting everyone's safety," Waldman said.
The arguments Thursday focused on three issues: whether the identification or search requirement violates the Fourth Amendment, whether the government has to show the public and the courts the text of rules that affect the public, and which court has jurisdiction over constitutional challenges to such rules.
[...]
Appellate Judge Steven Trott repeatedly questioned Harrison about whether asking for identification really implicated the Fourth Amendment's ban on unreasonable searches and seizures, calling it Harrison's "weakest argument."
But Trott also questioned the government's case, asking Waldman why the United States was "playing cat and mouse" with the courts by alternatively referring to the identification-or-search requirement as a policy, a rule and a law-enforcement technique.
The presiding judge, Richard A. Paez, probed Waldman about the government's defense of a rule it refuses, in Waldman's words, "to confirm or deny the existence of."
"Doesn’t that strike you as a bit odd?" Paez asked.
Judge Thomas G. Nelson also questioned the government's secrecy.
"How do we know this is an order?" Nelson asked.
Paul Elias, an Associated Press reporter who forgot his driver's license at home and talked his way into the courthouse with a business card and an ATM card with his picture on it, led with this:
A wealthy Libertarian who is fighting a requirement that airline passengers show identification before traveling asked a federal appeals court Thursday to broaden the scope of his battle to cover other forms of commercial transportation.
and noted:
Gilmore arrived in court Thursday wearing Birkenstock sandals and a small pin on his lapel that read "Suspected Terrorist."That same pin prompted a British Airways pilot to kick Gilmore off a London-bound flight in 2003.
Oakland Tribune's premier hack (that's not pejorative) Sean Holstege filed this:
Millionaire John Gilmore didn't show photo identification to walk into a federal courthouse Thursday, where his attorney tried to persuade a panel of appellate judges that nobody should need ID to board an airplane.Sacramento attorney James Harrison made special arrangements to get his client past the checkpoint, where every other member of the public was asked to show ID. But no such arrangements were possible when Gilmore tried to board a Southwest Airlines flight at Oakland International Airport on July 4, 2002.
News.com's Declan McCullagh piped in with his usual fine prose style.
A federal appeals court wrestled Thursday with what seems to be a straightforward question: Can Americans be required to show ID on a commercial airline flight?John Gilmore, an early employee of Sun Microsystems and co-founder of the Electronic Frontier Foundation, says the answer should be "no." The libertarian millionaire sued the Bush administration, which claims that the ID requirement is necessary for security but has refused to identify any actual regulation requiring it
My friend Justin Scheck of The Recorder, a West Coast law paper, filed this feature, with some fine coloring:
Bespectacled, bearded and Birkenstocked (with Dr. Seuss socks), John Gilmore cut an appropriately iconoclastic profile Thursday as the centerpiece of a notebook-wielding gaggle in front of the 9th U.S. Circuit Court of Appeals.Gilmore, a tech-boom multimillionaire who can't fly on airplanes due to his refusal to show identification at airports, is a star -- and major funder -- of the electronic privacy movement.
He's been at the center of an increasingly strange piece of litigation for the past three years since he sued the government, claiming that the requirement to show ID before boarding a plane is unconstitutional.
Complicating matters -- and nourishing conspiracy theories -- is the government's ongoing refusal to disclose what, if any, such requirement is on the books.
(Note to Harrison, telling a legal reporter that the judges you just tried to persuade were "a terrible panel" might not be a great idea.)
Tim Cavanaugh of Reason filed this factually-challenged bit for Reason's blog.
Most of today's arguments turned on various points tangential to the central argument. In particular, there's a jurisdictional question about whether the Ninth Circuit should be hearing the case. Both sides argued that the case should be remanded to a "lower court" (presumably the Northern District of California, which dismissed the case last year), though Department of Justice lawyer Joshua Waldman held out the option of the Ninth Circuit's deciding the case on the merits. The interesting part is that the jurisdiction brouhaha arises from the question of who is actually ordering the ID check. The Transportation Security Administration claims it gave an order to demand IDs to the airlines on the authority of Congress, but Congress has not actually issued any law requiring ID checks. Gilmore's lawyer, James P. Harrison, argues that requirement hasn't been made public and is effectively a secret law. Waldman counters that there are many cases where we accept a "legal fiction" that something is in the U.S. Code, that ID requirements are prominently posted at airports, on the TSA website, etc., and that everybody in the courtroom (except Gilmore, who was signed in by his lawyer) had to show ID to enter the building.[long section on the shortcomings of Gilmore's lawyer removed for space considerations]
On the courthouse steps after the hearing, one of the pro-Gilmore cranks (whose number I would estimate at about a score) spelled out the distinction Gilmore's attorney did not: That the Hiibel decision made a distinction between having to identify yourself verbally and having to produce a piece of identification, which constitutes a search. (I don't vouch for the details of any of this stuff, just that he seemed to have an argument.)
(Just so you know the jurisdiction fight has nothing to do about who is ordering the ID check, it's about a law that allows challenges to administrative orders to only go to an appeals court. Gilmore wants the case sent back down to a district court for a full trial, but contrary to Cavanaugh's assertion, the government does not want that at all. They want the Ninth to dismiss the case, but if the Ninth does think Gilmore has a case, they want the Ninth to decide it. They don't want a full trial -- they think the law explicitly says that can't happen. Waldman's point about the "legal fiction" was an ironic point since courts assume that every one should know a rule if it is in the federal code, even though its ridiculous to assume most citizens read the federal code. The irony here is that everyone knows you have to show i.d. at the airport, even though its not in the federal code, so Gilmore can't say he didn't know about the rule. And finally, the pro-Gilmore 'crank' Cavanaugh mentions is none other than Edward Hasbrouck, who knows more about the minutiae of airline travel laws and airline databases than just about anyone on this big, big planet.)
Here's an excerpt from Hasbrouck's wordy, but perceptive and accurate, take on Gilmore's hearing:
The good news, as I read the tea leaves of the argument, is that it appears that John Gilmore and the cause he has taken up will eventually get their day in court, and may get it somewhat sooner rather than later: the 3 judges seemed inclined, if they rule that the case should first have been filed with them instead of with the district court, to order it transferred to their jurisdiction, rather than ordering it dismissed and making Mr. Gilmore start over from scratch in the circuit court.[...]
I don't know if Mr. Gilmore was verbally asked, or stated, his name -- so far as I can tell, the record is silent on that point. But by presenting himself for transportation, and presenting those tickets as entitling him to passage, he was implicitly making a legally binding self-declaration as to his name and identity.
This case is not, therefore, about anonymous travel, an interesting but irrelevant side issue that was raised in this morning's argument. It's not about whether Mr. Gilmore could be asked for ID (he was, in effect, when he was asked to present a name-identified non-transferable ticket) or whether Mr. Gilmore could be sanctioned for failing to identify himself (he did identify himself).
The issue in this case is specifically about the legality of the search embodied in the demand for tangible evidence of identity, and the lack of due process embodied in the secrecy of the "rule" requiring production of ID credentials (whose existence, even today, government counsel would "neither confirm nor deny") and the lack of any publicly-disclosed criteria as to what evidence of identity is sufficient, or how its sufficiency is to be determined.
By the by, this decision is looking to be very interesting.
The panel seems not very happy with the secret nature of the rule, but simultaneously doesn't seem persuaded by the argument that the rule is unconstitutional.
But their animosity for the former may move them for a more full constitutional challenge. I highly suspect the panel will take on this case and ask for more briefings or send it in front of the full panel of the Ninth. This stuff is way too interesting for these judges to give it back to a district court.
The other interesting angle is that if Gilmore gets the court to decide that the search part of the identification -or-search policy is an unconstitutional administrative punishment, then he also brings down the no-fly and selectee lists as unconstitutional administrative punishments..
Posted by Ryan Singel at 11:00 PM | TrackBack
December 08, 2005 | The Epic of Gilmore
Longtime Internet civil liberties activist and Electronic Frontier Foundation co-founder, John Gilmore, will have his day in court Thursday to argue against the constitutionality of a secret rule compelling airline passengers to show identification before boarding an airplane.
From my Wired News story from Wednesday:
Although John Gilmore lives just five blocks from San Francisco's Department of Motor Vehicles, his driver's license is expired. On purpose.The outspoken, techno-hippie, wealthy civil libertarian doesn't want to give his Social Security number to the DMV.
Neither will he show his driver's license at airports, or submit to routine security searches. This refusal to obey the rules led him to file suit against the Bush administration (Gilmore v. Gonzales) after being rebuffed at two different airports on July 4, 2002, when he tried to fly without showing identification. One airline offered to let Gilmore fly without showing ID, but only if he underwent more intensive security screening, which he declined.
On Thursday, Gilmore and his lawyers will get 20 minutes in front of the 9th U.S. Circuit Court of Appeals to make their argument against identification requirements and government secrecy, in a case that time and shifting public opinion has transformed from a quirky millionaire's indignant protest into a closely watched test of the limitations of executive branch power.
"The nexus of the case has always been the right to travel," Gilmore said. "Can the government prevent Americans from moving around in their own country by slapping any silly rules on them -- you have to show ID, you have to submit to searches, you have to wear a yarmulke?"
Gilmore has sunk thousands of dollars into fighting identification requirements, but he also personally committed to not traveling in the United States if he has to show identification.
So Gilmore has not taken a train, an intercity bus or a domestic flight since July 4, 2002. He still flies internationally.
Gilmore describes himself as being under "regional arrest," and said he would love to drive and fly again.
"I'm a millionaire," Gilmore said. "I can do whatever the fuck I want, right? Why should I run around without an ID? Because no one else was paying attention to that and letting our liberties slip down the drain. I figured it was worth some amount of money and some amount of personal sacrifice to keep a free society."
Regardless of your take on the necessity or usefulness of showing identification, the questions Gilmore's case is raising about government secrecy are intriguing.
Here's what Abraham Sofaer of the Hoover Institution has to say on his nascent SofaerBlog.
I hope Sofaer will excuse me for quoting him at length:
Those of you who follow privacy issues obsessively will probably have seen John Gilmore’s website, a standard boilerplate PANIC NOW privacy advocate website. What interests me is DOJ’s argument here claiming that 49 U.S.C. 114(s)(1)(C), which prohibits disclosing information “developed or obtained in carrying out security” together with 49 CFR 1520.9(a)(1), enable TSA to enact a secret rule requiring ID to be shown when boarding an aircraft simply by issuing such a rule and then declaring that rule’s existence to be sensitive information.The judge denied the DOJ motion to file its brief in camera and ex parte (ed. note. in camera means in the judges chambers and ex parte means without Gilmore's la, and so DOJ filed a brief in the case that assumed that ID requirements do exist, rather than provide documentation on whether that is the case. Here is a choice quote from that brief: “First, there is an administrative record, namely, the TSA security directive alleged by plaintiff.” (emphasis mine) Lawyers can say things like that with a straight face. The brief argues in part that the ID requirement is a law enforcement technique, not a law in itself, and therefore it does not need to be published in a codified form.
The interesting part of the whole thing to me is how insistent TSA is about not releasing official text of the ID-or-search rule. It’s not clear how such a rule could be a secret in any meaningful sense of the word. The argument put forward by DOJ is that it is analogous to catching drug traffickers, where the investigator properly does not wish to reveal his criteria for where to focus investigative attention. Since the ID requirement is (alleged and assumed to be) uniform, I can’t see how that applies. It seems to me that TSA wants blanket authority to make secret and globally-applicable regulations, with review to be done only by appellate courts, and only under seal.
On December 8th we will find out whether congress has given them that authority.
Posted by Ryan Singel at 12:11 AM | Comments (1) | TrackBack
December 07, 2005 | Making a List or Checking It TwiceI saw this correction coming a frequent-flier mile away.
The ever vigilant Richard M. Smith sent this News.com story by Anne Broache to Dave Farber's Interesting People list this morning.
Tens of thousands mistakenly put on terrorist watch listsWASHINGTON--Nearly 30,000 airline passengers discovered in the past year that they were mistakenly placed on federal "terrorist" watch lists, a transportation security official said Tuesday.
Jim Kennedy, director of the Transportation Security Administration's redress office, revealed the errors at a quarterly meeting convened here by the U.S. Department of Homeland Security's Data Privacy and Integrity Advisory Committee.
Actually, that's not quite what Kennedy said according to reports I heard about the meeting.
And I'm pretty sure the TSA press office gave Broache a call to say they were very unhappy about the story.
Here's the corrected lede and hed:
Tens of thousands mistakenly matched to terrorist watch lists
WASHINGTON--About 30,000 airline passengers have discovered since last November that their names were mistakenly matched with those appearing on federal watch lists, a transportation security official said Tuesday.
Full story here.
Kennedy works in the redress office.
Even the correction doesn't really get the story right.
What he said, according to my sources, is that 30,000 people had gone through the non-trivial process of submitting forms and identification and had received letters that would help them get through security faster.
These 30,000 are people whose names match or come close to matching names on the no-fly or selectee lists.
This is a *very* touchy subject for the TSA.
I got a call from TSA after I ran the story about Sister Glenn Anee McPhee matching on the list, because they were mad about something I quoted her saying (something to the effect of how happy she was she got off the list).
It didn't matter that I made sure in my story not to make clear the difference between being on the list, and matching an entry on the list. I still got an earful.
But, back to the real story. The redress office has been very busy to issue 30,000 letters in a year. The TSA likely ran background and FBI checks on each of them. That's not an inexpensive or automated endeavor.
Kennedy also said that 60 people who wrote in weren't able to be helped. That means that 60 of them were or were deemed likely to be the person on one of these lists.
Posted by Ryan Singel at 08:30 PM | Comments (2) | TrackBack
December 07, 2005 | Able Data Mining?Able Danger. TIA. Al Qaeda. Curt Weldon. John Poindexter. Slobodan Milosevic. Data mining. Information Dominance. Raytheon. Condoleezza Rice.
Shane Harris's feature at National Journal has them all.
In the spring of 2000, a year and a half before the 9/11 attacks, Erik Kleinsmith made a decision that history may judge as a colossal mistake.Then a 35-year-old Army major assigned to a little-known intelligence organization at Fort Belvoir in Virginia, Kleinsmith had compiled an enormous cache of information -- most of it electronically stored -- about the Al Qaeda terrorist network. It described the group's presence in countries around the world, including the United States.
It was of great interest to military planners eager to strike the terrorists' weak spots. And it may have contained the names of some of the 9/11 hijackers, including the ringleader, Mohamed Atta.
The intelligence data totaled 2.5 terabytes, equal to about 12 percent of all printed pages held by the Library of Congress. Neither the FBI nor the CIA had ever seen the information. And that spring, Kleinsmith destroyed every bit of it.
[...]
But Able Danger, for all its intrigue, is just one piece of the unusual intelligence practices that Kleinsmith was engaged in, years before 9/11. In the late 1990s, Kleinsmith was the chief of intelligence for the Army's Land Information Warfare Activity, a support unit assigned to the Intelligence and Security Command. LIWA had broad authority to assist the Army and all military commands in conducting "information operations," a broad discipline that includes information warfare, public deception in combat, and intelligence analysis.
The Army's hub in this effort was the aptly named Information Dominance Center, based at Fort Belvoir. Since the late 1990s, the IDC has been home to some of the most innovative, unconventional, and controversial minds in the intelligence business. In its futuristic-style building -- its interior spaces designed by a Hollywood set artist to mimic the bridge of the starship Enterprise, complete with a large captain's chair in the center of the main room -- the IDC covered a range of topics.
Analysts tracked computer hackers who were targeting military networks, watched for potential avenues of Chinese government espionage, and charted the working relationships among foreign terrorists. To do this, the IDC relied heavily on a novel technique called "data mining."
On a recent afternoon at a coffee shop in Springfield, Va., not far from the IDC, Kleinsmith explained how data mining works. Putting pen to paper, Kleinsmith sketched clumps of circles, then surrounded some with concentric, wavy perimeters, until he'd drawn a crude version of a topographical map.
While the piece doesn't come to any firm conclusions on the quality of Able Danger's work or whether the program actually found Mohammed Atta, it's more than worth a few minutes of your time.
Full story here.
Posted by Ryan Singel at 03:27 PM
December 06, 2005 | Secondary Screenings on the SubwaysThere's a fine debate -- ahh, hell, call it a mêlée -- going on over at the malapropblog, Concurring Opinions.
A recent decision upholding the legality of random searches of New York City subway passengers set off the infighting.
Here's the scorecard so far, in reverse chronological order:
News story about the decision: Larry Neumeister's AP story
1. Professor Daniel Solove takes gloves off
2. Solove, NYC Subway Searches Upheld: A Critique of the Court’s Decision
4. Mazzone, Subway Searches: A View from New York (critiquing Solove)
5. Dave Hoffman, NYC Subway Searches: A Response to Dan (critiquing Solove)
6. Solove, Rational Security vs. Symbolic Security (responding to Hoffman and Mazzone)
7. Hoffman, Are Subway Searches Really the Top of a Slippery Slope to Korematsu (replying to Solove)
8. Mazzone, Democratic Searches and Seizures (replying to Solove)
When Mayor Bloomberg announced the policy, I laughed at it here, and when I visited New York in September, all I saw of the policy were a bunch of bored-looking cops behind a card table at the Staten Island Ferry.
Perhaps, though, the judge was right and I was wrong. Wouldn't be the first time.
Posted by Ryan Singel at 03:09 PM | TrackBack
December 06, 2005 | Sony PSP conversationThe Wooster Collective, a website devoted to promoting and talking about street art, has been all over the Sony PSP graffiti ads story, and is now featuring an interesting conversation about commercialism/patronage/art/independence.
Photo by Irena Kittenclaw.
They perceive the story to be a tipping point.
Maybe it's just us, but as we start to receive photos from all over the country showing defaced Sony PSP ads, we're starting to think that the Sony PSP "graffiti" campaign may indeed be a watershed moment in the battle between graffiti culture and advertising.Why?
1. Because of it's scale.
With the Sony PSP ads, activists now have possibly hundreds of the same ads from one single campaign in many different cities to deface and to make a statement. To our knowledge, no brand has ever done as many ads like this for one single campaign. Collectively, as more and more of the graffiti ads get defaced, it makes for a very strong statement. Individuals are now joining a collective group.
2. Because it's Sony.
Obviously Sony is not a small company. Their size gives them the resources to pull off this campaign. Because it's Sony, more people will take up the fight to rebel against it (as we're seeing now)
3. Because of the Internet.
[...]
Full post here.
The debate over there is more than worth a few clicks.
Try this one by dixon:
When I see brands, I see....sweat shops, enough plastic wrapping in the land fills to choke a horse and one dozen men in the belly of the machine, driving their S.U.V.s while sipping a $5 latte. I was told that you guys have some kind of connection to the corporations? Tell them this. KEEP YOUR DESPERATE CORPORATE LONG ARM OUT OF A MOVEMENT THAT IS THE ONLY THING THAT IS OURS!!!!!
Or this one, a long meander on corporate patronage, vandalism and street art:
SO What is the Right way to Write? I thought the car tag was funny, (often think about tagging hummers and escalates with some relevant stencil to Excessive size,myself). My laughing was what escalated the situation. My mother in laws car was tagged recently too. Laughed but it just one kid with a red can spraying 5 cars as he runs by. pure vandalism, he cops the art urge plea? so what is right. and who decides? artist versus vandal versus corporate whore, skill wielding, mac drivers. This much I can say if my town were one of the real anti street art towns and talking about fining the companies who stickers were found etc. I would be cutting SONY stencils and waiting for night fall.... tryin to DoIT wRIGHTe
Wooster Collective is also cataloging photos of defaced Sony ads. (1, 2)
Update:Piers Fawkes, of the PSFK blog, has a different take -- he thinks everyone should take a deep breath.
Sony just didn't go out with a spray can one night and daub the walls. Sony PSP paid for all the space.For a long time street artists have been courting ad agencies for work - and then when one agency makes a noticeable campaign - then suddenly there's a witch hunt against PSP by the blogs
We should be very careful about how to read the situation. San Francisco is a wonderful city with a thirst for culture unlike many American cities - and at the same time it harbors a counter culture rarely seen in any city too. To find that the art kids in San Fran didn't like the commercialization of street art isn't that surprising. Let them have their say - but recognize that it's the kids of San Fran saying it, not the US.
Posted by Ryan Singel at 09:32 AM | TrackBack
December 05, 2005 | Sony PSP Graffiti Rewritten
While a huge number of folks (via Digg) found my original blog post about Sony's guerrilla graffiti ad campaign for the PlayStation Portable, many wondered if Sony was actually behind the campaign or whether the company paid for the wallspace.
Here's my story for Wired News with some details on the campaign and some thoughts from marketers about the graffiti.
Seeking to market its handheld game device to hip city dwellers, Sony has hired graffiti artists in major urban areas to spray-paint buildings with simple, totemic images of kids playing with the gadget. But the guerrilla marketing gambit appears to be drawing scorn from some of the street-savvy hipsters it's striving to win over.Coming on the heels of widely publicized news that Sony music CDs infected customers' computers with security-hole-inducing spyware, the campaign for the PlayStation Portable is being derided on the internet as an attempt to buy the credibility of street art. [...]
Other cities targeted in the campaign include New York, Chicago, Atlanta, Philadelphia, Los Angeles and Miami, according to Sony spokeswoman Molly Smith.
The advertising, based on original artwork commissioned by Sony's ad agency, features a collection of dizzy-eyed urban kids playing with the PSP as if it were a skateboard, a paddle or a rocking horse, but doesn't include the word Sony or PSP anywhere.
When asked about the criticism, Smith countered that art is subjective and that both the content and the medium dovetailed with Sony's belief that the PSP is a "disrupter product" that lets people play games, surf the internet and watch movies wherever they want.
"With PSP being a portable product, our target is what we consider to be urban nomads, people who are on the go constantly," Smith said.
Floyd Hayes, the head creative director at Cunning Work, which specializes in nontraditional marketing campaigns such as promoting a Sci-Fi Channel TV show about the Bermuda triangle through reward signs (.jpg) for a missing sock, doesn't disapprove of the campaign, though he thinks the seemingly hypnotized kids in the artwork might send the wrong message about the PSP's thrill factor.
But Hayes doesn't think Sony has crossed any lines with the faux street art. "Sony and PSP have every right to use this type of media," Hayes said. "They have done it for (a) very long time very successfully and spoke the language of the streets without being patronizing."
I wondered how widespread this backlash was, but given its the highest ranking story on Digg this month (as of today), I'd guess it's fair to say the campaign is controversial.
Posted by Ryan Singel at 08:50 AM | TrackBack
December 03, 2005 | TSA ChangesThe TSA is changing its rules to allow passengers to carry small scissors and some pocketknifes onto planes, but will add some random secondary screenings and increase screeners' focus on finding explosives.
The change was announced formally on Friday, and there's more here in Leslie Miller's AP story.
Stewardesses and some members of Congress, including Ed Markey, think this is poor security, but it seems like a smart move.
Unfortunately, transportation security officers (née screeners) will still have to look for and confiscate lighters, thanks to a href="http://www.secondaryscreening.net/static/archives/2004/12/dorgan_wydens_b.html#000076">Senator Byron Dorgan's cameo in
In other TSA news, Justin Oberman, who has been heading the Secure Flight program at the TSA, is leaving for greener pastures.
Oberman is taking a job with a venture capital firm called Crestview Capital Funds where he will work as -- insert predictable drum roll here -- "the senior analyst focused on homeland security, transportation and other related industries." Link to press release.
When last screened around these parts, Oberman was dodging and dissembling about his violation of the Privacy Act. Both the Inspector General and the Privacy Office at Homeland Security were ostensibly investigating the little matter of creating a secret database on American citizens, but neither the press release from the venture capital fund nor the one from the TSA mentions any investigation.
Secure Flight remains in a holding pattern and is unlikely to be rolled out this year. The new head is Stephanie Rowe, a former Accenture executive who has experience consulting with the TSA.
Crestview is lucky to have Oberman, who by all accounts knows how to do "due diligence."