Date: Sat, 07 Nov 2009 13:51:29 -0600
From: Paul Schmehl <pschmehl_lists@...rr.com>
To: full-disclosure <full-disclosure@...ts.grok.org.uk>
Subject: Re: How Prosecutors Wiretap Wall Street

--On November 7, 2009 11:24:55 AM -0600 Valdis.Kletnieks@...edu wrote:

> On Fri, 06 Nov 2009 23:42:45 CST, Paul Schmehl said:
>> communications as well.  Under existing law (if you believe that FISA
>> applies) they would have 72 hours maximum to submit the necessary
>> paperwork and obtain the necessary approvals to go before the FISA
>> court  and obtain a warrant.  Otherwise they would have to cease all
>> surveillance.  Meanwhile the terrorists aren't going to sit around
>> waiting  for the warrant to be issued to continue their plans.
>
> Actually Paul, you have that bass-ackwards, and it's important.
>

No, actually I don't.  I just did a lousy job of wording it.

> They are allowed to start wiretapping immediately, and then have 72 hours
> *after they already started listening* to find a FISA court judge and
> do the paperwork.  So yes, the terrorists don't wait for a warrant, and
> the NSA doesn't need to wait either.
>

That's only true if they can get the paperwork done and obtain the warrant 
within 72 hours.  Otherwise, at the 72 hour mark all monitoring must 
cease.  And guess who knows that?  We don't exactly keep our operational 
strictures secret, you know.  And to think that terrorists aren't aware of 
the rules within which we operate is to display profound ignorance.  They 
have taken clear advantage of our restrictive Rules of Engagement in Iraq 
and Afghanistan to inflict more casualties on us than we might otherwise 
have suffered.

> So let's see.. You're the NSA. You develop a person of interest.  You
> start wiretapping the crap out of this guy.  You now have 72 hours to
> call the FISA judge you almost certainly have on speed-dial. The request
> will almost certainly be granted (one source list 18,761 FISA warrants
> requested from 1978 up to the end of 2004, of which *4* were rejected -
> but then granted after modification).
>

>>From what I've read getting a warrant in 72 hours is almost impossible. 
Remember they first have to gather sufficient data to convince a judge 
that they have sufficient probable cause to conduct the surveillance.  And 
they have to do that separately for every device the terrorist might use. 
(That's been changed now, but even that some of the privacy advocates are 
opposed to.)  Then they have to put a legal brief together, obtain the 
Attorney General's approval and signature and then contact the court for 
the warrant.  Then the court needs to read the brief, and if the judge has 
questions, they must obtain the answers to those before they can get the 
warrant.

It's not quite the same as dropping by Human Resources to pick up a copy 
of your Benefits Handbook, as you imply.

> But even *that* is apparently too onerous.  The only reasonable
> conclusion is that you wanted to wiretap people that even the fairly
> lenient FISA rules wouldn't get you a warrant. And that's important,
> because the entire reason the FISA court was created in 1978 in the
> *first* place was because Nixon got caught using government agencies to
> illegally spy on political enemies and activists.
>

Yes - political enemies and activists - not terrorists.

It seems particularly peculiar to me that people get all hot and bothered 
about this issue given that a plausible scenario has a terrorist in 
Pakistan contacting a party in the United States (sleeper cell?  lone 
actor?) who may or may not be a US person, and that the intent of the 
monitoring is to find out what they're doing or planning to do so that we 
can prevent terrorist acts, not to convict US persons of a crime.

As I've pointed out now several times, it's analogous to people that get 
all hot and bothered by the fact that admins have access to the data on 
their computers.  You, of all people, know what a bogus concern that is. 
Admins could care less about the data on your computer, much less have the 
time to go rummaging around through all that data looking for something 
interesting.  They just wish you quit getting your computer infected all 
the time.

Paul Schmehl, If it isn't already
obvious, my opinions are my own
and not those of my employer.
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