[NYTr] New Law Allows Govt to Turn Phones, Date: Fri, 10 Aug 2007 16:36:30 -0400 Via NY Transfer News Collective * All the News that Doesn't Fit Wired Blog - Aug 6, 2007 http://blog.wired.com/27bstroke6/2007/08/analysis-new-la.html Aug 6, 2007 Analysis: New Law Gives Government Six Months to Turn Internet and Phone Systems into Permanent Spying Architecture By Ryan Singel A new law expanding the government's spying powers gives the Bush Administration a six-month window to install possibly permanent back doors in the nation's communication networks. The legislation was passed hurriedly by Congress over the weekend and signed into law Sunday by President Bush. The bill, known as the Protect America Act, removes the prohibition on warrantless spying on Americans abroad and gives the government wide powers to order communication service providers such as cell phone companies and ISPs to make their networks available to government eavesdroppers. The Administration pushed for passage of the changes to close what it called a "surveillance gap," referring to a long-standing feature of the nation's surveillance laws that required the government to get court approval to capture communications inside the United States. While the nation's spy laws have been continually loosened since 9/11, the Administration never pushed for the right to tap the nation's domestic communication networks until a secret court recently struck down a key pillar of the government's secret spying program. The Administration argues that the world's communication networks now route many foreign to foreign calls and emails through switches in the United States. Prior to the law's passage, the nation's spy agencies, such as the National Security Agency and the Defense Intelligence Agency, didn't need any court approval to spy on foreigners so long as the wiretaps were outside the United States. Now, those agencies are free to order services like Skype, cell phone companies and arguably even search engines to comply with secret spy orders to create back doors in domestic communication networks for the nation's spooks. While it's unclear whether the wiretapping can be used for domestic purposes, the law only requires that the programs that give rise to such orders have a "significant purpose" of foreign intelligence gathering. The law: a.. Defines the act of reading and listening into American's phone calls and internet communications when they are "reasonably believed" to be outside the country as not surveillance. b.. Gives the government 6 months of extended powers to issue orders to "communication service providers," to help with spying that "concerns persons reasonably believed to be outside the United States." The language doesn't require the surveillance to only target people outside the United States, only that some of it does. c.. Forces Communication Service providers to comply secretly, though they can challenge the orders to the secret Foreign Intelligence Court. Individuals or companies given such orders will be paid for their cooperation and can not be sued for complying. d.. Makes any program or orders launched in the next six months perpetually renewable after the six month "sunset" of the new powers last for a year after being authorized e.. Grandfathers in the the current secret surveillance program -- sometimes referred to as the Terrorist Surveillance Program -- and any others that have been blessed by the Foreign Intelligence Surveillance Court. f.. Requires the Attorney General to submit to the secret surveillance court its reasons why these programs aren't considered domestic spying programs, but the court can only throw out those reasons if it finds that they are "clearly erroneous." g.. Requires the Attorney General to tell Congress twice a year about any incidents of surveillance abuse and give statistics about how many surveillance programs were started and how many directives were issued. h.. Makes no mention of the Inspector General, who uncovered abuses of the Patriot Act by the FBI after being ordered by Congress to audit the use of powerful self-issued subpoenas, is not mentioned in the bill. In short, the law gives the Administration the power to order the nation's communication service providers -- which range from Gmail, AOL IM, Twitter, Skype, traditional phone companies, ISPs, internet backbone providers, Federal Express, and social networks -- to create possibly permanent spying outposts for the federal government. These outposts need only to have a "significant" purpose of spying on foreigners, would be nearly immune to challenge by lawsuit, and have no court supervision over their extent or implementation. Abuses of the outposts will be monitored only by the Justice Department, which has already been found to have underreported abuses of other surveillance powers to Congress. In related international news, Zimbabwe's repressive dictator Robert Mugabe also won passage of a law allowing the government to turn that nation's communication infrastructure into a gigantic, secret microphone. UPDATE: This analysis originally said that the orders entered under the new rules could be renewed indefinitely. That is not accurate. I conflated the ability of the government to continue indefinitely the programs under way under FISA before the law was signed, with the section that says that the programs under the new law go for a full year, despite the 6 month sunset. That said, if a future bill includes the same grandfather clause that this bill has, the spying outposts could easily permanent. Those interested in seeing how I made this mistake, look at Section 6 of the bill. I regret the error. *** New York Times via San Francisco Chronicle - Aug 6, 2007 http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/08/06/MNI6RDFMQ1.DTL New law expands federal surveillance power by James Risen The New York Times (08-06) 04:00 PDT Washington -- President Bush signed into law on Sunday legislation that broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants. Congressional aides and others familiar with the details of the law said its impact goes far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They say seemingly subtle changes in legislative language will sharply alter the legal limits on the government's ability to monitor millions of phone calls and e-mail messages going in and out of the United States. They also say that the new law for the first time provides a legal framework for much of the warrantless surveillance that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can monitor the private communications of U.S. citizens. "This more or less legalizes the NSA program," said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation. Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States. Today, most international telephone conversations to and from the United States are conducted over fiber-optic cables, and the most efficient way for the government to eavesdrop on them is to latch on to giant telecommunications switches located in the United States. By changing the legal definition of what is considered "electronic surveillance," the new law allows the government to eavesdrop on those conversations without warrants - latching on to those giant switches - as long as the target of the government's surveillance is a person who is "reasonably believed" to be overseas. For example, if a person in Indianapolis calls someone in London, the National Security Agency can eavesdrop on that conversation without a warrant, as long as the NSA's target is the person in London. Tony Fratto, a White House spokesman, said Sunday in an interview that the new law goes beyond fixing the foreign-to-foreign problem, potentially allowing the government to listen to Americans calling overseas. But he emphasized that the objective of the new law is to give the government greater flexibility in focusing on foreign suspects overseas, not to go after Americans. "It's foreign, that's the point," Fratto said. "What you want to make sure is that you are getting the foreign target." The legislation to change the surveillance act was rushed through both the House and Senate in the last days before the August recess began. The White House's push for the change was driven in part by a still-classified ruling earlier this year by the special intelligence court, which said the government needed to seek court-approved warrants to monitor those international calls going through American switches. The new legislation, which is designed as a stop-gap measure and expires in six months, also represents a power shift in terms of the oversight and regulation of government surveillance. The new law gives the attorney general and the director of national intelligence the power to approve the international surveillance, rather than the special intelligence court. The court's only role will be to review and approve the procedures used by the government in the surveillance after it has been conducted. It will not scrutinize the cases of the individuals being monitored. The law also gave the administration greater power to force telecommunications companies to cooperate with such spying operations. The new law says the companies can be compelled to cooperate by orders from the attorney general and the director of national intelligence. Democratic congressional aides said Sunday that some telecommunications company officials have told congressional leaders that they are unhappy with that provision in the bill, and might challenge the new law in court. The aides said the telecommunications companies have told lawmakers that they would rather have a court-approved warrant ordering them to comply. In fact, pressure from the telecommunications companies on the Bush administration has apparently played a major hidden role in the political battle over the surveillance issue over the past few months. In January, the Bush administration placed the NSA's warrantless wiretapping program under the Foreign Intelligence Surveillance Act, and subjected it for the first time to the scrutiny of the FISA court. Democratic congressional aides said Sunday they believed that pressure from major telecommunications companies on the White House was a major factor in persuading the Bush administration to do that. Those companies were facing major lawsuits for having secretly cooperated with the warrantless wiretapping program, and now wanted greater legal protections before cooperating further. But the change suddenly swamped the court with an enormous volume of search warrant applications, leading, in turn, to the administration's decision to seek the new legislation. * ================================================================= .NY Transfer News Collective * A Service of Blythe Systems . Since 1985 - Information for the Rest of Us . .339 Lafayette St., New York, NY 10012 http://www.blythe.org . List Archives: https://blythe-systems.com/pipermail/nytr/ . Subscribe: https://blythe-systems.com/mailman/listinfo/nytr =================================================================