Or maybe it’s because the NSA continues to sabotage encryption standards?

Gen. Hayden is technically a professional bull-shitter, but this claim is so disgusting that it’s hard to even comprehend. Although no one can expect him to admit to the NSA’s sabotage of international encryption standards, it’s amazing that he actually blames lack of cyber security on our liberal democracy and the civil liberties that comes with it.

The truth is, the NSA has been strong-arming corporations to create “back-doors” in their networks, thereby allowing the NSA to steathily monitor their information. If this wasn’t bad enough, they also changed encryption standards without anyone knowing, which means that even companies who wouldn’t agree to back-doors, probably still have them. Back-doors will always be exploited by any hackers who care to really look. This is what undermines security.

YES…Eagan is using a previous, secret FISC opinion as the basis of her dismissal of 4th Amendment rights in this case. Not only is her argument lacking any critical thought, but she is using a freaking secret opinion…Thanks Eagan.

Although one would be well within reason to argue that cases like Smith.. are inadequate in determining the scope of the 4th Amendment as it pertains to our technological age, the fact remains that it is still a significant Supreme Court ruling and it makes total sense that Eagan would depend on this case.

However…

Like she points out here, the facts of these two scenarios are very different:

• Smith.. involved one man and one pen register.
• In that case, the police monitored his calls for just two days.
• Before obtaining his call records, Smith’s car had been positively ID’d as the same car as the man who had been harrassing the victim, i.e. there was significant reason to believe he was responsible, even before his phone records were seized.
• Smith had a chance to address his 4th Amendment rights as an individual, while anyone arrested due to evidence discovered from these bulk phone records does not.

For an example of that last point, it was found out in August of 2013 that DEA agents have been siphoning this information from the FBI/NSA and using it in domestic investigations. However, agents were instructed to “recreate” the investigation so as to cover up the origin of any information leading to an arrest. Aside from showing that the government is obviously looking at the exact content of calls made by targeted individuals, this shows that these individuals would have no way of challenging this invasion and abuse by the DEA.

You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.‘ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it

Basically, the court decided that individuals have no expectation of privacy with respect to the numbers they dial, simply because it is a given that the phone company must “record it for various business reasons”.

Next, they generalize the whole situation by claiming that society as a whole has not recognized phone numbers dialed as private. What this did, was to determine that individuals who convey information to third parties have “assumed the risk” of disclosure to the government.

In his dissenting opinion, Justice Marshall, joined by Justice Brennan said:

Implicit in the concept of assumption of risk is some notion of choice…In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide.

It’s puzzling why this was included here or anywhere in this opinion. So what? This is why the oversight regime of the NSA is so useless. Of course they’ve indicated that it is valuable for obtaining foreign intelligence…that’s the whole pretense for them standing in front of the FISA Court to begin with.

Many have called the FISA Court nothing more than a “rubber stamp”, which is a little bit unfair, and aside from this opinion, it does not appear to be completely true. None-the-less, the review process for these orders are non adversarial, meaning no one is arguing for the millions of American’s whose privacies are invaded each day.

Even more important than all this is the fact that these sweeping orders do not at all appear to be necessary to stop terrorists, and some would argue that collecting this much data has hindered analysts ability to pick out actionable intelligence. There was a perfectly well-functioning system built by former NSA senior official Bill Binney, called Thin Thread which did the exact same thing as programs like PRISM, except it had built-in privacy protection for citizens. Yet, the government decided to scrap it, in favor of the total disaster of a program that would later be revealed as Trailblazer

THIS IS NOT OVERSIGHT..

This is asking them to be self-accountable, which even a glance at the histories of both the NSA and the FBI will show is impossible. Even in the last few years, the FISC Judges have found out again and again that they were mislead, lied to, or else kept in the dark about certain aspects of these orders.

Although this isn’t as plainly untrue as the previous statement, it appears as if the NSA certainly has that capability, and may make use of it.

Senate Intelligence Committee member Sen. Ron Wyden has a tendency to hint, as best as he legally can, at serious abuses of authority by the NSA, during public hearings. In the most recent hearing, he asked Gen. Keith Alexander:

Senator Wyden: About two dozen other senators have asked in the past whether NSA ever collected or made any plans to collect Americans' cell site information in bulk. What would be your response to that?
Lt. Gen. Alexander: …. Under Section 215, NSA is not receiving cell site location data and has no current plans to do so. As you know, I indicated to this committee on October 20th, 2011, that I would notify Congress of NSA’s intent to obtain cell site location data prior to any such plans being put in place.

Notice the qualification, “under section 215..”. This is a very common ploy by NSA and FBI officials. Although they may not be using it on “this program” or pursuant to “that statute”, they are certainly using it under a different program. Wyden knows this, and pressed further:

Senator Wyden: That’s not the question I’m asking, respectfully. I’m asking: has the NSA ever collected or ever made any plans to collect cell site information? That was the question we still respectfully have not gotten an answer to. Could you give me an answer to that?

After dancing around the question a little more, Alexander indicated that the answer to that question was classified.

Whether it was mistakenly briefed to the Judiciary Committee, or miscommunication between congressional committee members and the FBI, either way, this is simply not true at all.

In the public hearing held one day after those classified briefings, Rep. Jerold Nadler responded to FBI Director Mueller’s claim that the NSA cannot look at contents without court authorization:

We heard precisely the opposite at the briefing the other day. We heard precisely that you could get the specific information from that telephone simply based on an analyst deciding that…In other words, what you just said is incorrect. So there’s a conflict.

Furthermore, former FBI and NSA employees have confirmed, many times over, that the NSA collects and stores all this information and can subsequently look up, and/or listen to, all this content. As former senior intelligence official, Bill Binney, said:

while they may not record anywhere near all of that, what they do is take their target list, which is somewhere on the order of 500,000 to a million people. They look through these phone numbers and they target those and that’s what they record.