The way the Dems cave is always with the tell-tale GWB rub their noses in it.

89/92 Well, the example that they wanted to use for the panel involved finding a terrorists lap top and wanting to go through everything and also (not specified, but implied, start collecting emails to and from anything on that list)

So here’s what I would say on behalf of their argument, based on my minimal non-tech knowledge.

If they wanted to start pulling up info immediately for emails – part of the argument he made was that they “intercept” before the recipient receives, so you don’t know where the recipient is. If you get information on a “hot” terrorist email addy, you might want to start picking up everything you can, right away. But if some of the recipients are going to be in the US (or if the ruling says that pulling the info from a US server is the same in some ways as all the info being accessed in the US) the warrant is going to need to spell out minimization procedures if nothing else, to deal with all the emails to Victoria’s Secret or whatever.

More importantly, if they decide they want to start ponging out further – taking the email addys that their target sent to and now making those “targets” to widen out the circle, and do it quickly, you know have the email of someone (First Outcrop) who has been in contact with the agent of a foreign power, but about whom there may be no evidence that THEY are the agent of a foreign power or that they were in contact for any improper purpose or are a US person, but they may feel that exigencies are such you have to follow ripples out as far as possible, as fast as possible.

So now, as you are “hot on the trail” of plots and persons from the laptop emails, you have First Outcrop who may be in the US (so we need a warrant and minimizations) or may not (Candyland!) and all the emails to and from First Outcrop that you want to start intercepting right away (Second Outcrop) again, you now are dealing with contacts to someone (First Outcrop) about whom you may not yet have any probable cause to believe is an agent of a foreign power themselves and no probable cause to believe those sending and receiving emails from them are agents of a foreign power, plus they may be US persons to.

So how do you address the exigency (Bin Laden just got chased out of the cave, we have his laptop, we think an attack may be imminent and we want to track down every email we can and cast the net as far as possible) with the fact that you just don’t know, quickly, who any of these people are, where they are, etc. and if they are US persons, you need probable cause that one party to the communication is an agent of a foreign power at each outcrop level, and you also would need warrant requests for each outcrop level that specifies minimization and the outcrops would be going in lots of different directions.

I may have the tech or procedures wrong and I am definitely giving more benefit of the doubt than should be given based on the broad violations of the Fourth Amendment they are asking for and receiving, but trying to be a bit of devil’s advocate I’d say maybe that’s the problem.

Not knowing whether someone picking up an email (and who may be the email addy you pong off of for the next outcrop) in the US (so you would need warrants and minimizations spelled out) and not really having any probable cause to think that, just bc they are one of many email addys in the laptop they are an agent of a foreign power (and definitely losing any claim for such probable cause as the net spreads out to other outcrops) could definitely make it slower than if you just said – go search all the emails to and from OBL on that laptop and also to and from anyone who has been in touch with him and do it now.

I don’t buy that this is what is happening though (I think they go with something a LOT LESS than a terrorist’s laptop as their start point and I don’t buy that they couldn’t have a lot of pre-approved minimization procedures by this far into things that could be cookie cutter put on the warrant and cookie-cutter followed by the interception teams) But I’m trying to make the argument fwiw.

- I think there has to be SOMETHING that the intel and judiciary committees for the House and Senate were told on that front about not being able to really make the “program” work properly if gov had to pre-think specifics on what they wanted in a warrant or AG request even. fwiw.

BINGO

I might faint, truly, if it turns out that phone companies let the gov’t have access to their programs and codes. they guard that info like the formula for Coca Cola.

That was my point. I’m not thinking that they did let the FBI have access – but I am wondering whether there might have been NSA access/involvement on a pretty tight level to establish parameters of capabilities and also for overlays of what they are getting/could get from different telecoms and what they could do for them.

Nah. I just don’t see it. Further, the FBI is famous for sucking at tech. Really, they can barely email.

This is what I am getting at, although not from an FBI standpoint bc I don’t think they were too involved in the TSP. I think that it is possible that, to really squeeze the most juice out of the broad access to pretty damn near everyone’s communications with programmed searches and protocals, there has to be exposure to or at least understanding of the real nuts and bolts of the proprietary info and that the telecoms have said they would do some of what needed to be done, but only with their people/limitations. So to make the TSP “work” there is no real way for the AG or a warrant to go through what they really want and need done – a lot of “real time” decision making on sorts and culling may be a part of what is going on, hence the need for the telecoms to be more on board and more “cooperative” (especially their people who may work the frontlines and be very worried about what might happen to them for their decisionmaking/hands on aspects as they make real time decisions on whose information to access or not).

That’s just one way of trying to explain the dwelling on the cooperate v. compel moaning – I think there has to be SOMETHING that the intel and judiciary committees for the House and Senate were told on that front about not being able to really make the “program” work properly if gov had to pre-think specifics on what they wanted in a warrant or AG request even. fwiw.

If it is about email, what’s the impediment for them to get a warrant from FISC to monitor the email account? And to monitor the email account in a foreign country they would need a sign off from Mukasey per EO 12333, right?

So, in other words is he saying they’re lazy?

No, it about splitting a fine legal hair and saying “if it’s not required, it’s not required, so we’re not going to volunteer to do it to allay your fears”

– Former Attorney General Buck Turgedson

But in response to a question at the meeting by David Kris, a former federal prosecutor and a FISA expert, Wainstein said FISA’s current strictures did not cover strictly foreign wire and radio communications, even if acquired in the United States. The real concern, he said, is primarily e-mail, because “essentially you don’t know where the recipient is going to be” and so you would not know in advance whether the communication is entirely outside the United States.

I might be dense but I don’t understand his problem: if they are on foreign soil they are covered by EO 12333 §2.5; if they are in the US they are covered by FISA

So, what’s the impediment to them getting a warrant from FISC when they’re in the US?

If it is about email, what’s the impediment for them to get a warrant from FISC to monitor the email account? And to monitor the email account in a foreign country they would need a sign off from Mukasey per EO 12333, right?

So, in other words is he saying they’re lazy?