DarkGovernment

FBI May get More Unfettered Latitude

A Justice Department plan would loosen restrictions on the Federal Bureau of Investigation to allow agents to open a national security or criminal investigation against someone without any clear basis for suspicion, Democratic lawmakers briefed on the details said Wednesday.

The plan, which could be made public next month, has already generated intense interest and speculation. Little is known about its precise language, but civil liberties advocates say they fear it could give the government even broader license to open terrorism investigations.

Congressional staff members got a glimpse of some of the details in closed briefings this month, and four Democratic senators told Attorney General Michael B. Mukasey in a letter on Wednesday that they were troubled by what they heard.

The senators said the new guidelines would allow the F.B.I. to open an investigation of an American, conduct surveillance, pry into private records and take other investigative steps “without any basis for suspicion.” The plan “might permit an innocent American to be subjected to such intrusive surveillance based in part on race, ethnicity, national origin, religion, or on protected First Amendment activities,” the letter said. It was signed by Russ Feingold of Wisconsin, Richard J. Durbin of Illinois, Edward M. Kennedy of Massachusetts and Sheldon Whitehouse of Rhode Island.

As the end of the Bush administration nears, the White House has been seeking to formalize in law and regulation some of the aggressive counterterrorism steps it has already taken in practice since the Sept. 11 attacks.

Congress overhauled the federal wiretapping law in July, for instance, and President Bush issued an executive order this month ratifying new roles for intelligence agencies. Other pending changes would also authorize greater sharing of intelligence information with the local police, a major push in the last seven years.

The Justice Department is already expecting criticism over the F.B.I. guidelines. In an effort to pre-empt critics, Mr. Mukasey gave a speech last week in Portland, Ore., describing the unfinished plan as an effort to “integrate more completely and harmonize the standards that apply to the F.B.I.’s activities.” Differing standards, he said, have caused confusion for field agents.

Mr. Mukasey emphasized that the F.B.I. would still need a “valid purpose” for an investigation, and that it could not be “simply based on somebody’s race, religion, or exercise of First Amendment rights.”

Rather than expanding government power, he said, “this document clarifies the rules by which the F.B.I. conducts its intelligence mission.”

In 2002, John Ashcroft, then the attorney general, allowed F.B.I. agents to visit public sites like mosques or monitor Web sites in the course of national security investigations. The next year, Mr. Bush issued guidelines allowing officials to use ethnicity or race in “narrow” circumstances to detect a terrorist threat.

The Democratic senators said the draft plan appeared to allow the F.B.I. to go even further in collecting information on Americans connected to “foreign intelligence” without any factual predicate. They also said there appeared to be few constraints on how the information would be shared with other agencies.

Michael German, a lawyer with the American Civil Liberties Union and a former F.B.I. agent, said the plan appeared to open the door still further to the use of data-mining profiles in tracking terrorism.

“This seems to be based on the idea that the government can take a bunch of data and create a profile that can be used to identify future bad guys,” he said. “But that has not been demonstrated to be true anywhere else.”

The Justice Department said Wednesday that in light of requests from members of Congress for more information, Mr. Mukasey would agree not to sign the new guidelines before a Sept. 17 Congressional hearing.

Tags: evesdropping, fbi, spying, wiretapping

Democrats Ready to Forgive Warrantless Wiretaps

Proving the old axiom that Congress “is the best that money can buy,” congressional Democrats are preparing to gut the Constitution by granting giant telecom companies retroactive immunity and liability protection on warrantless wiretapping by the Bush regime.

According to Congressional Quarterly, “Congressional leaders and the Bush administration have reached an agreement in principle on an overhaul of surveillance rules.”

According to sources familiar with the negotiations, the compromise would be very similar to the last proposal by Sen. Christopher S. Bond , R-Mo., to House Majority Leader Steny H. Hoyer, D-Md.

Sources said the major change is that a federal district court, not the secret FISA court itself, would make an assessment about whether to provide retroactive legal immunity to telecommunications companies being sued for their alleged role in the Bush administration’s warrantless surveillance program. (”Agreement Could Pave Way for Surveillance Overhaul,” Congressional Quarterly, June 13, 2008)

In other words, the telecommunication corporations and their “customers,” the NSA, FBI and other members of the “intelligence community” will get everything they want–retroactive immunity and billions of dollars in continued taxpayer subsidies for intelligence “outsourcing.”

Under rules being considered by Senate Intelligence Committee Chairman Jay Rockefeller (D-WV), Senate Intelligence Committee Vice Chairman Kit Bond (R-MO), House Majority Leader Steny Hoyer (D-MD), House Minority Whip Roy Blunt (R-MO) and Bush administration officials, the deal would allow the federal district court “to look at a lower standard of evidence to determine if companies received such orders–a provision sought by the GOP, according to one person involved in the talks,”

Without clear standards for determining whether immunity for these privateers is even justified, the courts will be forced to issue virtual get-out-of-jail-free cards to corporate executives and their shareholders, thus freeing them from any and all liability, should companies claim they had “received assurances” from the state that its spying program was “legal.”

Indeed, no warrants at all would be required when the administration and their outsourced private “partners” choose surveillance “targets” under “exigent,” or urgent circumstances. Needless to say, such “exigent” circumstances are determined by executive branch “intelligence officials,” of whom fully 70% are private mercenaries in the employ of corporatist state structures.

However, civil liberties’ campaigners charge that language currently under consideration by House and Senate “leaders” is “judicial theatre” and a “mirage.” According to the ACLU,

Allowing phone companies to avoid litigation by simply presenting a “permission slip” from the president is not court review. This is immunity pure and simple because the companies are NOT being judged on whether they followed the law. A document stating that the president asked them to conduct warrantless wiretapping is not enough justification for violating the basic privacy rights of Americans. (”Facts on Senator Kit Bond’s (R-MO) FISA Proposal,” American Civil Liberties Union, June 13, 2008)

Who then, are the privateers that “opposition” Democrats want to “protect” from litigious “radicals” such as the ACLU and the Electronic Frontier Foundation? Some of the wealthiest recipients of “outsourced” intelligence handouts, that’s who! Major players in the administration’s illegal spying programs include, according to Washington Technology’s 2008 Top 100 Government IT Contractors : Verizon Communications Inc., $1,320,637,982 (No. 18); Sprint-Nextel Corporation, $839,946,000 (No. 25); AT&T Inc., $505,358,533 (No. 38); Qwest Communications International Inc., $306,617,000 (No. 51).

If this weren’t bad enough, mendacious “leaders” such as Jay Rockefeller claim that spying telecoms “deserve” immunity because they were “ordered” by the NSA to cooperate with the administration. Indeed, back in January,

Rockefeller defended the actions of the telecom companies, arguing that the companies received explicit orders from the National Security Agency to cooperate with the supersecret surveillance effort. The West Virginia Democrat said the telecom companies were being “pushed by the government, compelled by the government, required by the government to do this. And I think in the end, we’ll prevail.”

Rockefeller added: “If people want to be mad, don’t be mad at the telecommunications companies, who are restrained from saying anything at all under the State Secrets Act. And they really are. They can’t say whether they were involved, they can’t go to court, they can’t do anything. They’re just helpless. And the president was just having his way.” (Daniel W. Reilly, “Rockefeller predicts win in FISA fight over telecom immunity,” Politico, January 23, 2008)

Pity the poor “helpless” telecoms! But as investigative journalist Tim Shorrock documents,

The history of telecom cooperation with the NSA is a guide to how the NSA went about winning cooperation with the industry in 2001. During the 1940s, when telephone and telegraph companies began turning over their call and telegram records to the NSA, only one or two executives at each firm were in on the secret. Essentially, the government raised the issue of patriotism with them, and the companies went along. That kind of arrangement continued into the 1970s, and is likely how cooperation works today. “Once the CEO approved, all the contacts” with the intelligence agencies “would be worked at a lower level,” Kenneth Bass, a former Justice Department official with the Carter administration, told me. “The telecos have been participating in surveillance activities for decades–pre-FISA, post-FISA–so its nothing new to them.” Bass, who helped craft the FISA law and worked with the NSA to implement it, added that he “would not be surprised at all” if cooperating executives received from the Bush administration “the same sort of briefing, but much more detailed and specific, that the FISA court got when [the surveillance] was first approved.” (Spies for Hire, New York: Simon and Schuster, 2008, p. 320)

Helpless indeed! Let’s make a couple of things clear: the Democratic party is completely beholden to their “constituents”–the multinational corporations, including the telecoms, the giant defense contractors and the well-heeled lobbyists who fill their campaign coffers. Since 9/11, with few rare exceptions that can be counted on one hand, the Democrats have been complicit with the Bush administration’s quasi-fascistic “war on terror” and everything that followed in its wake–illegal spying, torture, wars of aggression, not to mention the looting of public assets for private profit known as “outsourcing.”

The facile “debate” over retroactive immunity for spooky telecommunication corporations will reach its inevitable denouement with the Democrats allowing either the FISA court or Federal District courts to essentially rubberstamp immunity orders issued by the Bush administration.

As the ACLU’s Caroline Fredrickson told The Hill, “Whatever silk purse Hoyer tries to make of Bond’s sow’s ear and no matter how they try to sell it, the end result of all this negotiating will be exactly what the administration has wanted from the beginning–FISA rewritten to delete court oversight of surveillance and immunity for its pals at the telephone companies.”

In the final analysis, these “negotiations” are taking place behind closed doors, subject to input by influence-peddlers and corporate lobbyists, without even a cursory–let alone, public–exploration of whether these mercenary outfits violated the law.

Tags: at&t, fbi, NSA, spying, telecom, warrantless, wiretap

Internet Archive Scares off FBI

The FBI has withdrawn a secret administrative order seeking the name, address and online activity of a patron of the Internet Archive after the San Francisco-based digital library filed suit to block the action.

It is one of only three known instances in which the FBI has backed off from such a data demand, known as a “national security letter,” or NSL, which is not subject to judicial approval and whose recipient is barred from disclosing the order’s existence.

NSLs are served on phone companies, Internet service providers and other electronic communications service providers, but because of the gag order provision, the public has little way to know about them. Their use soared after the September 2001 terrorist attacks, when Congress relaxed the standard for their issuance. FBI officials now issue about 50,000 such orders a year.

The order against the Internet Archive was served Nov. 26, and the nonprofit challenged it based on a provision of the reauthorized USA Patriot Act, which protects libraries from such requests. The privacy advocacy group Electronic Frontier Foundation represented the archive in the suit, which was joined by the American Civil Liberties Union.

The archive also alleged that the gag order that accompanied the data demand violated the Constitution.

As part of their settlement, the FBI agreed to drop the gag order and the archive agreed to withdraw the complaint. The case was unsealed Monday. Yesterday, redacted versions of key documents were filed, allowing the parties to discuss the case.

“We see this as an unqualified success,” said Brewster Kahle, the archive’s co-founder and digital librarian. “The goal here was to help other recipients of NSLs to understand that you can push back.”

Every time an NSL has been challenged in court, the FBI has backed off, said Melissa Goodman, an ACLU staff attorney. “That calls into question how much the FBI needed the information in the first place, and finally, whether the FBI needs this kind of sweeping and unchecked surveillance power.”

The two other instances of NSL withdrawals involved a library and an Internet consulting business. In February 2004, the FBI served an NSL on the Internet firm. In November 2006, the FBI withdrew the letter, after a lawsuit by the ACLU, but maintained the gag order, which is why the firm has not been publicly identified. The lawsuit, which challenges the constitutionality of the law authorizing NSLs, is still pending.

In July 2005, the FBI served an NSL on Library Connection, a library consortium in Connecticut. That year, the ACLU sued on grounds similar to the other case. In April 2006, the FBI withdrew the gag order. Three months later, it withdrew the NSL as well.

FBI Assistant Director John Miller said the information requested in the Internet Archive NSL was “relevant to an ongoing, authorized national security investigation.” NSLs, he said, “remain indispensable tools for national security investigations and permit the FBI to gather the basic building blocks for our counterterrorism and counterintelligence investigations.”

The Internet Archive, founded in 1996, works with national libraries, museums and universities to offer free access to a variety of materials. One of its unique features is the Wayback Machine, which stores archived versions of Web sites. The FBI, CIA, federal prosecutors and other law enforcement officials have regularly turned to the archive for information, especially from the Wayback Machine.

Last fall, the FBI served the data demand on the archive’s attorneys at EFF, a nonprofit in San Francisco. It directed the archive to turn over data, including length of service and all e-mail header information for a particular patron, as identified by an “address.” Kahle’s attorneys declined to say whether that referred to an e-mail address or an Internet protocol, or IP, address.

The archive, in keeping with longstanding traditions of libraries in the United States, seeks to guard patron privacy, Kahle said. It collects but does not verify the e-mail addresses of patrons wishing to sign up for archive library cards, use its message forums or post materials on the site. It does not keep or track IP addresses. Kahle said the archive has issued about 500,000 library cards.

According to a document filed in the case, the archive does keep records that may include the date a patron’s account was opened, the screen names associated with the account, the unconfirmed e-mail addresses and messages of those who communicate with the archive via e-mail.

Because they initially were not allowed to discuss the NSL over the phone, Kahle and his attorneys had to drive to one another’s offices whenever they wanted to talk about the case.

“Not being able to talk about it with our board, with my wife, made it very difficult,” said Kahle, who is also on EFF’s board. “I can imagine a hurried staffer sticking a gag into a hurried bill. But gags don’t seem to be necessary, and now, what we’ve discovered in practice, gagging librarians is horrendous.”

The Internet Archive voluntarily provided limited, publicly available information to the FBI, said EFF senior staff attorney Kurt Opsahl. He declined to elaborate.

Under a law enacted in 1986 and modified several times, national security letters may be issued to obtain “subscriber information,” “toll billing records information” and e-mail transactional records, but not content. The Justice Department inspector general has documented cases in which providers have supplied more information than was requested, including content.

A bipartisan bill in the House would restore the requirement that NSLs could be used only to collect information that pertains to “a foreign or agent of a foreign power” and would limit the gag order to 30 days, unless a court authorized an extension.

Tags: fbi, internet, privacy, terrorism

Internet Archive Wins Case With FBI

When the Internet Archive, a project founded in 1996 to create a digital library of the web, was served an illegal National Security Letter (NSL) by the FBI, Archive founder and Digital Librarian, Brewster Kahle, did what any self-respecting defender of free expression would do: he got pissed.

But Kahle did more. He sued the FBI–and won. After a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) in federal district court in San Francisco, the Bureau was forced to withdraw the NSL and unseal the case, allowing the Archive’s founder to speak out about his battle with autocratic Bushist agents.

The NSL was served on the Archive–a library recognized as such by the state of California–and Kahle’s attorneys in November 2007. The Bureau demanded personal information about one of the library’s patrons, including the individual’s name, address, and any electronic communication records pertaining to the user.

A National Security Letter, an onerous tool deployed by the Bureau to root out suspected “terrorists” and other malefactors, is a covert means by which the state obtains access to personal customer records from Internet Service Providers, banks, other financial institutions and credit reporting agencies without the approval of a judge. In other words, under the guise of a “national security investigation,” NSLs are very sharp hooks for government fishing expeditions.

Recipients are gagged from ever disclosing they have come under the Bureau’s baneful gaze. And since the passage of the viral Patriot Act in 2001 by a servile Congress, the use of these illegal procedures have fed the FBI’s seemingly insatiable demand for private records. Wired magazine reports that between 2003-2006 the Bureau has issued some 200,000 NSLs, often without a shred of legal justification for doing so, nor oversight to rein in their misuse. Ryan Singel writes:

Though FBI guidelines on using NSLs warned of overusing them, two Congressionally ordered audits revealed that the FBI had issued hundreds of illegal requests for student health records, telephone records and credit reports. The reports also found that the FBI had issued hundreds of thousands of NSLs since 2001, but failed to track their use. In a letter to Congress last week, the FBI admitted it can only estimate how many NSLs it has issued.1

Unfortunately for the Bureau, Kahle, who is also serves on the EFF’s Board of Directors, decided to challenge the NSL because it exceeded the FBI’s limited authority to target libraries during “espionage” or “terrorism” investigations.

According to a joint press release by the ACLU and EFF, Kahle said,

The free flow of information is at the heart of every library’s work. That’s why Congress passed a law limiting the FBI’s power to issue NSLs to America’s libraries. While it’s never easy standing up to the government–particularly when I was barred from discussing it with anyone–I knew I had to challenge something that was clearly wrong. I’m grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands.2

During a conference call with journalists on Wednesday, Kahle told reporters, “Not being able to talk about it with our board, with my wife, made it very difficult. I can imagine a hurried staffer sticking a gag into a hurried bill. But gags don’t seem to be necessary, and now, what we’ve discovered in practice, gagging librarians is horrendous,” the Washington Post reports.

Kahle said after the court ruling, “This is an unqualified success that will help other recipients understand that you can push back on these.”

As I reported last month, the Bureau actually returned documents they had already obtained in a 2005 terrorism-related case, after North Carolina State University refused to hand over educational records to FBI snoops who issued an illegal NSL against the University.

Why? Because it provided FBI Director Robert Mueller an opportunity to demand Congress grant the Bureau additional powers it wasn’t entitled to, and despite having obtained the documents in question after a federal grand jury issued a subpoena–and University officials had already complied!

While the Internet Archive’s victory against the FBI puts an end to the government’s challenge in this case, the settlement prevents Kahle or his attorneys from discussing what the Bureau was so intent on perusing, even though the FBI was seeking public information–not “state secrets,” nor “evidence” of a “terrorist plot.”

But these days, as the post-Constitutional “New Order” continues to cast a tyrannical pall across the American landscape, even a small victory against those who “work … the dark side,” has merit.

The partially redacted documents on the Internet Archive case are available here.

For more information on NSLs click here.

Tags: aclu, fbi, lawsuit, national security letter, nsl

Federal Monitoring Technology to be Unleashed on P2P Filesharing

In order to “monitor and map illicit file sharing activity on popular P2P networks, web sites, and chat rooms,” the feds are pushing the scourge of child porno, supposedly rampant on the internet if we believe the corporate media.

“At a hearing yesterday before the Senate Subcommittee on Crime and Drugs, anti-child porn activists urged the Senators to increase the FBI’s budget for combating child porn online and to move forward with plans to create a next-generation network monitoring and database system that can ferret out child porn trafficking on P2P networks, web sites, and chat rooms,” reports Jon Stokes for Ars Technica. “The new system would be hosted on the FBI’s Regional Information Sharing Systems (RISS) network and would give more law enforcement agents across the country access to an existing system, based in Wyoming, that’s currently being used to find and catch online child porn traffickers.”

But if we read headlines, we discover the FBI is more interested in snagging antiwar activists than child porno traffickers. “The FBI has collected extensive information on the tactics, training and organization of antiwar demonstrators and has advised local law enforcement officials to report any suspicious activity at protests to its counterterrorism squads, according to interviews and a confidential bureau memorandum,” the New York Times reported back in 2003, less than a year after the neocon bombed and invaded Iraq. “FBI officials said in interviews that the intelligence-gathering effort was aimed at identifying anarchists and ‘extremist elements’ plotting violence, not at monitoring the political speech of law-abiding protesters.”

As it turns out, a lot of those supposed anarchists are in fact government agents, as they were at the NAU summit in Montebello, Canada, a fact reported by the corporate media. In the United States, “law-abiding protesters” have been targeted and “neutralized” for decades by way of intimidation, harassment, discrediting, snitch jacketing, a whole assortment of authoritarian and illegal tactics, and the FBI trailblazed the way.

Sure, the FBI may grab a child porno dealer or two, but if history is any indication the intended target of the “next-generation network monitoring and database system” will be activists.

Senator Frank Lautenberg of New Jersey hit on something back in 2005 when he “wondered if the FBI was considering any one who protested government policy as a potential terrorist,” as the Christian Science Monitor reported at the time. Lautenberg, a self-described “tree hugger,” worried that the Department of Homeland Security would go after the Sierra Club. No, of course not, as the Sierra Club is a machination of the Rockefeller and Ford foundations and enjoys protected status, but the same is not the case for antiwar and patriot movement activists, or at least those not associated with the feds. In order to destroy an resistance, the FBI needs pervasive snoop ability and a “next-generation network monitoring and database system.”

Busting child pornographers is simply the most effective way to sell it.

Tags: fbi, feds, monitoring, p2p, sierra club