Go to Huffington Post and vote for Jane as Ultimate Game Changer.

http://www.huffingtonpost.com/…..lide_image

Second, Mary, you we really need you to turn your comments like yours @ 10 and @ 12 into a full-fledged diary on The Seminal.

Bob in AZ

Bush’s Illlegal Domestic Surveillance Program and Section 215

One extra l in Illegal

Some of my skills are in Computer technology and engineering. The divorce I went throught tossed me into a situation where my life was micro-snooped upon 24/7 by a mixed bag of mostly Government people. This group is linked to the family as protectors. My personal experience with email and internet snooping goes all the back to the mid 90’s and I have records of IP adresses starting sometime around early 2000. I’m not entirely sure of the timing but it’s around these times. Upon learning who was coming into my systems grabbing data, I tried looking them up. Where it led me was to a collaction of huge corporations in a server on the West Coast. The collected email and who I sent it to was going to different places than any documents I generated. It looked to me that there was a large operation of scanning characters automatically which is very simple to do.

Having this information and because I was working with law enforcement, namely the Cook County Sheriff, I gathered as much data, wrote a cover latter and tried giving it to them. They did everything they could to run away and not accept it. It’s important to note that the Chicago area law enforcement was that that time (it’s being cleaned up now) corrupted by an incoming $100 million dollar per week Cocaine shipment, my ex-wife’s family laundering the proceeds for those involved.

However the larger problem was the collection of all of my electronic data being sent to a large operation somewhere in California and for what purpose? The purpose was to provide detailed information on my behavior for purposes of setting me up for situations to harm me. At that time there have been ongoing attempts at setup car accidents and many other harmful attempts. Who was involved were Government people and at this time I’m not able to explain how I came to know this. Soon though I’m considering talking more about my connections during that time.

The top level of the DOJ has been directly involved in supporting another White House Coup directlty linked with a huge collection of corproations and big banks. Sibel Edmonds blew the whistle on who she feels is involved and up to now, no one has been able to stop her. Right now as I understand the DOJ is scambling around trying to keep lids on everything butit isn’t working anymore. There are other situations such as mine that when surfaced will support exposing a lot more of what this it. Stay Tuned

Marty Didier
Northbrook, IL

CALEA also avoided imposing new obligations on ISPs. … This is not to suggest that Internet communications are somehow immune from electronic surveillance … “law enforcement will most likely intercept communications over the Internet at the same place it intercepts other electronic communications: at the carrier that provides access to the public switched network.”

Quite. No need to trouble dinky leetle ISPs when you’ve already got the frickin’ backbone tapped (cf. San Francisco AT&T optical tap, et al.).

Also interesting to note this is couched in LE terms, not NS terms.

Watch as AGAG talks about his ignorance of such things.

BTW – and not to belabor the point, but where the hell did Gonzales get “As we all know, probable cause is a standard that law enforcement must meet to justify an arrest.” Um, no, it’s a standard that law enforcement also must meet, and COUPLE WITH a independent magistrate’s review and issuance of an order, to search and seize information.

If you are seizing and searching information with a 215 order, or with a 3122 PRTT, or with a FISA warrant targetting a US person for criminal activity but without probable cause, then you are violating the constitution.

Oh well – in any event, there’s been so much bootstrapping, and so much of it Democratic supported and now with the Dems in charge, it’s going to be Democratic SOLICITED as well as supported, that it gets hard to untangle the mess of which bootstrap is coming into play and where, but I do think the article was talking about (correctly or not) a 3122 order that was using pat act discussions and definitions etc. on what is content to expand 3122 coverage, and 3122 is already something that isn’t subject to a probable cause standard, just a “relevant to” an investigation (that may not even have a crime at its base) standard – so by expanding the scope of what they can take under 3122 to go way beyond what was originally approved by the Sup Ct, they do something similar to what the other pat act changes, allowing for suspicions (or political hopes to find) a crime, all without probable cause, to form the basis of invoking all the FISA powers and provisions, as long as someone in DOJ (who has creatively made up and creatively forgotten all kinds of stuff in court filings – so their credibility is soooo nifty) also can mention a way to claim that there might have been “some contact” somewhere with an [now hugely and broadly defined - basically you could fit getting a PETA solicitation mailed to you IMO] “agent of a foreign power.”

I guess once you start claiming repulsive ideology is a “foreign power” just like a nation state, if you get emails from John Kyl (like I do for some reason) you are in contact with an “agent of a foreign power.” Oh sure, they then try to use some caveats (other than a US person) but they then do away with them on things like the 215 and we don’t even get to keep those protections in “real” court, with things like Hogan’s pre-appointment (to FISC) gift to Roberts/Bushco.

Going forward, the department anticipates that the use of Section 215 will increase as we continue to use the provision to obtain subscriber information for telephone numbers captured through court- authorized pen register devices, just as such information is routinely obtained in criminal investigations.

Although some of the concerns expressed about Section 215 had been based on inaccurate fears about its use, other criticisms have apparently been based on possible ambiguity in the law.

The department has already stated in litigation that the recipient of a Section 215 order may consult with his attorney and may challenge that order in court.

The department has also stated that the government may seek and a court may require only the production of records that are relevant to a national security investigation, a standard similar to the relevance standard that applies to grand jury subpoenas in criminal cases.

The text of Section 215, however, is not as clear as it could be in these respects. The department, therefore, is willing to support amendments to Section 215 to clarify these points.

We cannot, however, support elevating the relevance standard under Section 215 to probable cause. According to our lawyers and agents, raising the standard would render Section 215 a dead letter.

As we all know, probable cause is a standard that law enforcement must meet to justify an arrest. It should not be applied to preliminary investigative tools such as grand jury subpoenas or Section 215 orders, which are used to determine whether more intrusive investigative techniques requiring probable cause, such as electronic surveillance, are justified.

If the article is correct, it is about non-FISA orders. The link they give for the relevant section of law that the judge was ruling under is this:

http://www.law.cornell.edu/usc…..-000-.html

- a Title 18 application.

What it looks like Hogan did was to say that Patriot act (sold as national security) revisions and the Senate history for them supported the redefinition, under Title 18 (criminal) of surveillance.

BTW – you do realize that in addition to Lamberth, we no longer have Kollar-Kotelly on the FISA court and that starting this spring, Justice Roberts “gave” us Hogan for the FISA court.

This is kind of interesting background – some of the pre-911 testimony on then-existing efforts to change trap and trace, with CALEA and EPCA overlays

http://judiciary.house.gov/legacy/corn0406.htm

CALEA also expanded privacy and security protection for telephone and computer communications in certain other respects. / For example, Section 103(a)(4)(A) requires carriers to perform their obligations under the statute “in a manner that protects – [ ] the privacy and security of communications and call-identifying information not authorized to be intercepted” by law enforcement. / Section 103(a)(2) prohibits the use by law enforcement of pen registers and trap and trace devices to obtain tracking or location information on a targeted subscriber, other than that which can be determined from a telephone number. / Section 208 requires that law enforcement use reasonably available technology to minimize information obtained through pen registers. / Section 207 enhances the protection of e-mail and other transactional data, such as transactional logs containing a person’s entire on-line profile, by requiring the presentation of a court order by law enforcement officials, rather than a mere administrative subpoena, to obtain such information. /

CALEA also avoided imposing new obligations on ISPs. The legislative history specified that “[t]he definition of telecommunications carrier does not include persons or entities to the extent they are engaged in providing information services, such as electronic mail providers, on-line services providers, such as Compuserve, Prodigy, America-On-Line or Mead Data, or Internet service providers.” / This is not to suggest that Internet communications are somehow immune from electronic surveillance when appropriately authorized under ECPA. Congress made clear that CALEA did not expand or contract the ability to conduct such surveillance, and that “law enforcement will most likely intercept communications over the Internet at the same place it intercepts other electronic communications: at the carrier that provides access to the public switched network.” /
…
The Supreme Court has held that the information that may be obtained by pen registers or trap and trace devices is not protected by the Fourth Amendment because individuals do not have a reasonable expectation of privacy in the numbers dialed on a telephone. / In reaching this conclusion, the Court stressed the limited capabilities of such devices, noting that “pen registers do not acquire the contents of communications.” /
…
Nevertheless, it is becoming increasingly clear that the “pen register” and “trap and trace” concepts as set forth in ECPA do not fit well in the online environment. Nor is it valid to assume that such devices do not raise Fourth Amendment issues given that the type of information potentially available from an ISP by a “pen register” greatly exceeds the type of information normally available when one is installed on a telephone line.
…
The legislative history of these provisions suggests that Congress intended the terms “pen register” and “trap and trace device” to refer only to devices used in connection with telephone systems. The legislative history states that:

…
A trap and trace device or pen register for Internet-based communications is installed on the data network of an ISP, not on a telephone line, and the information which may be intercepted is not limited to that transmitted over a single subscriber line.
…
The use of pen registers or trap and trace devices to intercept packetized network information raises privacy concerns of a far different magnitude than the Supreme Court contemplated in Smith v. Maryland. Such information is not the conceptual equivalent of a telephone number, as some suggest. The substance of this issue was addressed by the FCC in its rulemaking proceeding implementing CALEA. There, the Commission found that interception of packet-mode communications raises significant technical and privacy concerns because call routing information and content are both contained in the packets. / Thus, interception of packetized information potentially allows the government to “receive both call identifying information and call content under a pen register.” /

New York courts have addressed the privacy implications of pen registers that may be “converted” to receive the contents of communications. In People v. Bialostok, for example, the New York Court of Appeals held that, under the New York electronic surveillance statute, a pen register capable of being used as a listening device required an eavesdropping warrant obtainable based on probable cause, rather than merely a judicial order obtainable based on reasonable suspicion. / The court held that the facts that the device’s audio function was disabled, and that no conversations were actually heard, did not remove the need for a warrant. Although Bialostok involved the interpretation of New York law, it is relevant to the constitutional principles underlying federal wiretap law. /

Last December, my client (”the ISP”) was placed in just such an “awkward position” when it was served by federal Marshals with an order providing that United States agents “may install a pen register and trap and trace device to register time, date, and source and destination addressing information of the electronic mail messages sent to and from the subject Internet account, including information regarding the true source of the messages without geographic limitation[.]” As an apparent indication of some doubt about its authority in this regard, the Assistant United States Attorney applied for this Order not just under § 3122 of ECPA, but also under 18 U.S.C. §§ 2703(c)-(d), which applies to stored electronic data and transactional information about subscribers, and which requires the government to offer “specific and atriculable facts showing that there are reasonable grounds to believe” that the information sought is “relevant and material to an ongoing criminal investigation.” In granting the Order, however, the Magistrate determined that the applicant had met only the lower standard of § 3122 – a certification that the information likely to be obtained is relevant to an ongoing criminal investigation

Interesting thumbnail of what was going on, back in olden times. In any event, the article Garret linked, IF it is correct, says that first the magistrate, then Judge Hogan (not then a FISA judge) were being asked to rule on an application under 3122. It’s just that Hogan used Patsy Act provisions and history to support an new and improved content approach. And if he’s ok with that under 3122, it’s fun to think how far he’s willing to go in a secret court with no review ever, and which Congress is now saying isn’t JUST a secret court for national security suveillance, but also a court whose orders give belts and suspenders to using that “no probable cause, no valid 4th amendment warrant” information collected in criminal proceedings, even where criminal proceedings were the primary and overriding justification for the surveillance, there was just no probable cause to get a 4th amendment warrant.

If the Dems were smart, the least they would do is say, hmmmm – let’s change how judges are put on the FISA court and let’s bump up the existing number now (since they have such a workload) and do some advice and consent in getting the new crew on that court, and maybe restructure some to boot.