Thursday, December 29, 2005

NYT: NSA using super cookie (Associated Press)

The National Security Agency's Internet site has been placing files on visitors' computers that can track their Web surfing activity despite strict federal rules banning most files of that type.
The files, known as cookies, disappeared after a privacy activist complained and The Associated Press made inquiries this week. Agency officials acknowledged yesterday that they had made a mistake.
Nonetheless, the issue raised questions about privacy at the agency, which is on the defensive over reports of an eavesdropping program.

The above is from the Associated Press' "Spy Agency Removes Illegal Tracking Files." Around thirty members have e-mailed on it although Ben appears to be the first as soon as he spotted it on the New York Times website late last night. Are you getting the idea that the New York Times has put out another weak edition? You are? Good, that is the case.

Back to the article. So a person visits the NSA's site, maybe on purpose, maybe by accident, and upon visiting, a 'super cookie' (my term) hits your computer that is now tracking every site you go to for the next thirty years (hence my term). I am pretty sure we've never linked to the NSA. We have linked to the White House's official page and we have linked to the CIA's page -- for a speech by Poppy -- so it would be interesting to know if this "policy" was only implemented at the NSA or if it was a sort of "total awareness" going on at all government sites under the Bully Boy. The article states that the CIA did use them in 2002 until Daniel "Brandt called it to the agency's attention." Following cookies being placed upon anti-drug online ads (this would be in the Clinton years), "strict rules" were set in place in 2000 but as of 2001 at least 23 agencies were found by Congress to still be using them. A visit to the NSA website (prior to Tuesday) resulted in two cookies hitting your computer that did not expire until 2035.

Ari Schwartz is noted by many members as "embarrassing." (They must have missed his CNN chat if this is their first time noting Schwartz's weak defense.) Schwartz tells the AP that "Considering the surveillance power the N.S.A. has, cookies are not exactly a major concern. But it does show a general lack of understanding about privacy rules when they are not even following the government's very basic rules for Web privacy."

It's not a major concern to Schwartz. That shouldn't be surprising coming from Schwartz who most famously battled/petted the paper tiger when he "bravely" stuck his neck out to argue against the Patriot Act . . . without judicial oversight. (Link goes to a CNN transcript at CNN's web site.) While others fought the erosions of rights and liberties, Schwartz just wanted a little judicial oversight.

So, given that, it's not all that surprising that Schwartz, of the Center for Democracy and Technology, can see something illegal going on and deem it "not exactly a major concern."
If that's the best that Schwartz, speaking for the CDT, can do, perhaps the organization needs to get to work creating a commercial with the following tag line: "Where rights are to be given away, the Center for Democracy and Technology is there, helping to restrict your freedoms"?
And if the Monkees' "Daydream Believer" weren't already in use (a product's song hawking a product, symmetry!), the CDT could use it for the theme of such a commercial.

No link to CDT. Members don't care for it and if illegal activity is deemed merely embarrassing, I'd have concerns about linking to them. (See Eddie's commentary in the gina & krista round-robin for the last week of July -- I'm rushing and don't have the date on that but I've got to call Gina later this morning and I'll ask her if they can rerun it this week or next.)

Daniel Brandt wins praise for members for speaking straight and calling the actions of the NSA what they are, "illegal." The article points out that Brandt is the one who complained about the NSA cookies (this month) and that he was the one who complained about the CIA's cookies in 2002. He is the cofounder of Public Information Research and more information can be found on Brandt in this Wikipedia entry.

Since the Times doesn't have enough reporters to note the NSA spying today (or to place the longterm cookie issue in perspective), we'll note three organizations (in descending alphabetical order) on the NSA spying of American citizens.

First up, the National Lawyers Guild's "NATIONAL LAWYERS GUILD CONDEMNS ELECTRONIC SURVEILLANCE BY PRESIDENT AS A VIOLATION OF THE FOURTH AMENDMENT:"

New York. The National Lawyers Guild (NLG) announced today that it condemns the domestic electronic surveillance program revealed recently by President Bush as a violation of the Fourth Amendment. The NLG President Michael Avery declared, "The Fourth Amendment requires a warrant from a court before the government can engage in electronic surveillance of private conversations, whether by telephone or otherwise. For the president to authorize electronic surveillance without a court order is an outrageous violation of a clear constitutional provision."
The Guild noted that a similar assertion of power based on supposed national security arguments had been made by President Richard Nixon in the early 1970s. In a 1972 decision (United States v. United States District Court), the United States Supreme Court held that the President had no inherent power to conduct electronic surveillance of domestic groups without a court order, even where it believed they posed a threat to national security. That case was argued in the Supreme Court by the late Professor Arthur Kinoy, one of the founders of the National Lawyers Guild. In the 1972 case the Supreme Court did not reach the issue of whether the president could conduct electronic surveillance of foreign agents in the United States without a warrant. In 1978, however, Congress passed the Foreign Intelligence Surveillance Act, which created a secret court composed of federal judges to which the government could apply to get warrants to conduct electronic surveillance. The Act applies when foreign governments or foreign agents are believed to threaten the national security of the United States.
The Lawyers Guild explained that the 1978 Act creating the Foreign Intelligence Surveillance Court specifically created only one exception for the president to conduct electronic surveillance without a warrant. For that exception to apply, the Attorney General must certify under oath that the communications to be monitored will be exclusively between foreign powers and that there is no substantial likelihood that a United States person will be overheard.
Guild President Michael Avery explained, "By enacting the Foreign Intelligence Surveillance Act Congress made it clear that the president has no implied power to conduct electronic surveillance without a warrant. President Bush's actions directly violate both the explicit language of the Fourth Amendment itself and the will of Congress. The president's increasingly shrill rhetoric about the war on terror provides no basis to cast aside the United States Constitution."
The National Lawyers Guild called upon Congress to insist that the president obey the Constitution. The Executive Director of the Guild, Heidi Boghosian, noted, "The illegal surveillance conducted under President Bush’s order is yet another reason for the Congress to reject the extension of the USA PATRIOT Act. This Administration cannot be trusted to respect the Constitution and the Congress must play its role in the checks and balances that are necessary to preserve our democracy."
Founded in 1937 as the first racially integrated national bar association, the National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United States, with more than 200 chapters. The Guild has a long history of representing individuals who the government has deemed a threat to national security. Guild members defended FBI-targeted individuals and helped expose illegal FBI and CIA surveillance, infiltration and disruption tactics (COINTELPRO) that the U.S. Senate "Church Commission" hearings detailed in 1975-76 and which led to enactment of the Freedom of Information Act and other specific limitations on federal investigative power.

Second, the Center for Constitutional Rights' "Center for Constitutional Rights Statement on Illegal Government Spying on U.S. Citizens War Is Not a Blank Check to Engage in Warrantless Wiretapping:"

The warrantless wiretapping of citizens and residents of the United States is flatly illegal. It is a violation of criminal laws and an impeachable offense. No doctrine of Executive power or claim of authority to use military force can possibly authorize wiretapping that violates the core protections of the United States Constitution. Wiretapping is governed by statute and can only be carried out in the United States in compliance with the statute. Warrantless wiretapping against citizens and residents of the U.S., even when authorized by the President is a crime. It violates 18 USC sec. 2511, and those convicted can be sentenced to 5 years for each violation.
The President has said he needs to be able to act quickly to respond to potential threats, but under the current statute wiretapping can begin immediately while an expedited warrant is sought and obtained in a matter of hours. According to Center for Constitutional Rights President Michael Ratner, "What the President seeks is not speed, but a lack of judicial oversight and accountability. This is as true for torture and detention as it is for spying on Americans and has been the consistent modus operandi of an Administration that has gone further than any other in claiming extraordinary Executive powers."
In criminal cases, District courts issue warrants based on probable cause (The Federal Wiretap Act); in intelligence cases, the warrants are issued by the Foreign Intelligence Surveillance Court (Foreign Intelligence Surveillance Act). These acts provide more than ample authority for wiretapping. After 9/11, the Patriot Act, at the request of the Executive branch, expanded the authority to obtain wiretaps from the Foreign Intelligence Surveillance Court. Now the President is claiming that the act does not give him the authority he needs. While that is unlikely, if it is the case, the President should have gone back to Congress for the authority he claimed he needed. Our democracy and republic was not founded on the principle that the President can do what he wants outside the Constitution and laws passed by Congress. Ours is a government, at least we thought, of three branches that check and balance one another's powers to protect the citizens from tyranny.
The claim that war powers and the congressionally passed Authorization to Use Military Force somehow permit this warrantless wiretapping is wrong. A similar claim was rejected by the Supreme Court in the 1950's when President Truman tried to seize domestic steel mills for the war effort. In the 1970's, President Nixon claimed Executive authority during the Vietnam War to employ national security wiretaps against U.S. citizens. In a case brought by the Center for Constitutional Rights, the Supreme Court struck down that claim of unchecked Executive power. The court will again strike down these most recent attempts to subvert the Constitution, but that could take years. We call on the Administration to stop this illegal, unconstitutional practice now.
War powers are not unlimited. Even in this so called war on terror, Justice Sandra Day O'Connor said that "a state of war is not a blank check for the President." Particularly where Congress has acted in the area, and they have here, the President cannot act unilaterally."
CCR Legal Director Bill Goodman said, "This is an open and shocking admission by the President that he has suspended the Constitution in the name of national security. From the Alien and Sedition Laws to Watergate, this has been the battle cry of those who were the traditional enemies of the Bill of Rights."

Finally, the ACLU's "In New National Ad, ACLU Calls for Investigation Into President’s Illegal Surveillance of U.S. Citizens:"

NEW YORK – In a full-page advertisement in today's New York Times, the American Civil Liberties Union intensified its call for a special counsel to be appointed to determine whether President George W. Bush violated federal wiretapping laws by authorizing illegal surveillance. The ACLU said President Bush's actions were a clear violation of the Foreign Intelligence Surveillance Act (FISA), which was passed by Congress in response to revelations that former President Nixon was using "national security" claims to spy on American citizens he considered his "enemies." "President Nixon was not above the law and neither is President Bush," said ACLU Executive Director Anthony D. Romero. "President Bush cannot use a claim of seeking to preserve our nation to undermine the rules that serve as our foundation. The Attorney General, who may have been involved with the formulation of this policy, must appoint a special counsel to let justice be served." The advertisement, as well as a similar ACLU ad that ran last Thursday, was spurred by revelations earlier this month that Bush authorized the National Security Agency (NSA) to conduct electronic surveillance of people within the United States, including U.S. citizens, without a warrant. The text of today's advertisement compares the words of President Nixon and President Bush, both of whom denied allegations of illegal spying. Next to the image of Nixon, the advertisement says: "He lied to the American people and broke the law." Below that is an image of President Bush, with the words, "So did he." The FISA wiretapping law made it a crime to intentionally engage in electronic surveillance without court approval. The president clearly violated the law when he authorized, and then repeatedly reauthorized, the NSA to spy on Americans without first obtaining a warrant, the ACLU said. In a formal request sent last week to Attorney General Alberto Gonzales, the ACLU called for the appointment of "an outside special counsel with the independence to investigate and prosecute any and all criminal acts committed by any member of the Executive Branch in the warrantless electronic surveillance of people in the United States over the past four years by the NSA," noting that "such crimes are serious felonies and they need to be fully and independently investigated." The ACLU's Dec. 29 advertisement is online at www.aclu.org/safefree/spying/23271res20051229.html
The ACLU's Dec. 22 advertisement is online at www.aclu.org/safefree/spying/23203res20051222.html
The ACLU's Dec. 21 letter to Attorney General Gonzales is online at www.aclu.org/safefree/general/23184leg20051221.html
The ACLU's Dec. 20 Freedom of Information Act request seeking information about the NSA's program of warrantless spying on Americans is online at www.aclu.org/safefree/spying/23150prs20051220.html

All the above are press releases and they're included in full (which should be fine since they are press releases) because this is a real issue even if vacationing reporters at the Times means the paper can't follow the story. The ACLU ad, by the way, appears on A19 of this morning's paper.

And we'll note Mia's highlight, Martin Garbus' "Police-State Powers Are Our Biggest Threat" (New York Observer via Common Dreams):

This country is approaching a dangerous turning point. There has long been a desire and a political movement in America for restrictions on democratic rights, for an authoritarian government propelled by a combination of religious and nationalistic fervor. The helplessness caused by the events of Sept. 11 and the domestic and international war against Muslim "terrorists" deepened this desire. Never before was there such a possibility of such long-term constitutional violations, because there has never before been such an open-ended war.
In Weimar Germany, a feeling of helplessness led to Hitler's rise and the creation of the ultimate police state. There are similarities--and, of course, very significant differences—between America in the 21st century and Germany in the 1920’s.
Mr. Bush has suggested that he was chosen by God to lead the United States in the aftermath of the 9/11 attacks. The Nazi government, against religion, saw the salvation of the German people in messianic terms.
Many liberals and conservatives are concerned where all of this might lead. Professor Fritz Stern, a professor of German studies at Columbia University, pointed out that Hitler saw himself as "the instrument of providence" who fused his "racial dogma with Germanic Christianity." Paul Craig Roberts, a senior fellow at the Hoover Institution and a former Wall Street Journal editor, writes of the "brownshirting" of American conservatism--he says the hype about terrorism serves little or "no purpose other than to build a police state that is far more dangerous to Americans than terrorists."

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