Warrentless Surveilance of Internet Communication is up 400%

There is a DOJ report I recently stumbled upon that states that the use of “emergency” warrantless requests to Internet Service Providers for customer communications content [read: emails and ircs] has skyrocketed over 400% in a single year.
This 2009 report, which was recently obtained via a Freedom of Information Act request by blogger Christopher Soghoian (which apparently took the DOJ 11 months to get the two-page report to him), highlights the fact that law enforcement agencies within the Department of Justice "sought and obtained communications content for 91 accounts." This number is worthy of note because if denotes a significant increase over previous years: 17 accounts in 2008 (pdf), 9 accounts in 2007 (pdf), and 17 accounts in 2006 (pdf). For those not in the know the agencies that fall under DOJ jurisdiction are:    

• United States Marshals Service (USMS)
• Federal Bureau of Investigation (FBI)
• Federal Bureau of Prisons (BOP)
  • National Institute of Corrections
• Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
• Drug Enforcement Administration (DEA)
• Office of the Inspector General (OIG)

If You are just tuning in to this, you're going to need a bit of background:

 
Back when Congress passed the Electronic Communications Privacy Act (link details some history)in 1986, it granted law enforcement agencies the power to obtain stored communications and customer records in emergencies without the need for a court order.
According to DOJ interpretation of this law, in "certain scenarios" (an ambiguously worded phrase), a carrier may (but is not required to) disclose requested information if it:

“in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency.” 

"OK, what's the big deal with that?" you might be saying. Well, "belief" translates to a law enforcement official just stating that he/she an emergency exists is grounds for surveillance. It is similar to how Public Intoxication arrests work here in Texas.  A police office doesn't have to prove you are drunk in order to arrest you for P.I., they merely have to "believe" that you are drunk or under the influence.  Essentially the use of PI arrests in Texas have been used as a means of getting troublesome people off of the street, and by "troublesome" I mean the citizen who has the gall to ask for an officers name and badge number.

So let's couple the discussion above and add to this equation the passage of the USA PATRIOT Act of 2005. If you'll recall, Congress initiated and instituted "specific statistical reporting requirements for the voluntary disclosure of the contents of subscriber communications in emergency situations." Senator Lungren, whilst describing his angle for introducing the requirement, stated that:

“I felt that some accountability is necessary to ensure that this authority is not being abused… This information [contained in the reports] I believe should be highly beneficial to the Committee, fulfilling our oversight responsibility in the future … this is the best way for us to have a ready manner of looking at this particular section. In the hearings that we had, I found no basis for claiming that there has been abuse of this section. I don’t believe on its face it is an abusive section. But I do believe that it could be subject to abuse in the future and, therefore, this allows us as Members of Congress to have an ability to track this on a regular basis.”

So the senator references the reports given above.  A cursory read of those reports will show you how and, more importantly why, they are seriously flawed.

This is how it works: The Attorney General compiles and submits the emergency request reports. These reports -and this is key- only apply to disclosures made to law enforcement agencies within the Department of Justice. Because of this, there are "no statistics [emphasis added] for emergency disclosures made to other federal law enforcement agencies, such as the Secret Service, as well as those made to state and local law enforcement agencies."

Compounding this even further, although 18 USC 2702 permits "both the disclosure of the content of communications, as well as non-content records associated with subscribers and their communications [such as geo-location data]," Congress only required that statistics be compiled for the disclosure of communications content. Why would congress limit the reports this way? Plausible denial, maybe?

So here's the rub about the reports and why, specifically, they are faulty. It is precisely because the requirements on reporting, requirements laid out by Congress,  do not apply to disclosures made to law enforcement agencies outside the Department of Justice, that they do not include the disclosure of non-content communications data and other subscriber records, that the reports shortchange oversight in that they show a very limited portion of the scale and frequency of voluntary disclosures to law enforcement agencies. In other words the reports are a fog job...

Moreover, Congress at least superficially intended for these reports to shore-up public oversight of the emergency disclosure authority. I say superficially for two reasons. 1) Because of the fog job displayed above, and 2) Because the DoJ has virtually no initiative in making these reports available to the general public. According to Christopher Soghoian, the reports for 2006 and 2007 were leaked to him by "a friend with contacts on the Hill" and that he obtained the 2008 and 2009 reports via FOIA requests. In true stonewalling, bureaucratic style , it took DOJ full 11 months to get him a copy of the 2-page report for 2009.

To hammer this home for you all, consider this:

The reports and their accompanying failures only scratch the surface.  This is a letter submitted by communications leviathan Verizon to Congressional committees in 2007. In this letter Verizon revealed that the company had received a full 25,000 emergency requests during the previous year. How many actually came from the feds? According to the letter out of 25,000 emergency requests, a mere 300 requests were from federal law enforcement agencies. Compare that to the reports submitted to Congress by the Attorney General where they reveal less than 20 disclosures for that year. This is a classic shell game!Verizon is one of the only telcoms to submit a report to congress with such high numbers. Indeed, no other service provider has disclosed similar numbers regarding emergency disclosures, at least not out in the open. However,  it is clear that the Department of Justice statistics are not accurately reporting the scale of this form of surveillance. Indeed, there seems to be a concerted effort to underreport these disclosures by several orders of magnitude.

The fog job even covers state and local law enforcement agencies, who submit tens of thousands of warrantless requests to ISPs every year. If that doesn't show how the useless nature of the current reporting law, I don't know what else would. Moreover, this law doesn't apply to federal law enforcement agencies outside DOJ, such as the Secret Service. And finally, there is no accountability, provided by the law, regarding emergency disclosures of non-content information, such as geo-location data, subscriber information (such as name and address), or IP addresses used.

As a result, Congress currently has no idea how many warrantless requests are made to ISPs each year, they are able to keep up the appearance of oversight, and, if the shit house come down on them, they have plausible deniability foisting the blame on the DoJ.  The DoJ can then employ it's favorite tactic of claiming 'State's secrets' thereby preventing any case from every seeing the light of day in a court of law

The faliure of the mainstream media...surprised?

So TV media has, yet again, failed to report who S&P is blaming for the US' credit rating being downgraded for the first time in history.  What TV talking heads, and what conservatives really don't want you to know is that Standard and Poore's are blaming the Republicans.  Don't believe me? Just look here, on page four , to see the goods.  This was published two days ago, Aug. 5th, and i have yet to hear about it on the major news networks.  Thom Hartman seems to chalk it up to lazyness. I happen to think it's a little bit more than that (and I'll get into that in a sec.) For the mean time let me give you the pivotal quotes from the reports 'bullet points' (that's right, in justifying the downgrade S&P has reduced it's explanation of the situation to mere bullet points):

"[T]he downgrade reflects our view that the effectiveness, stability, and predictability of American policy making and political institutions have weakened at a time of ongoing fiscal and economic challenges"

OK, so that's part of the justification but the why  isn't completely answered until later in the document:

"Republicans in the Congress continue to resist any measure that would raise revenues,"

Hartmann states that this isn't a problem of lazy journalism.  Really, Thom?!  What else could it be??? I agree, I think it goes a bit beyond just lazy.  This piece of info should be red meat for the ravenous and sensationalist media.  So why haven't they covered it? That particular piece of information fleshes out when we read this in the report:

"We lowered our long-term rating on the U.S. because we believe that the prolonged controversy over raising the statutory debt ceiling and the related fiscal policy debate indicate that further near-term progress containing the growth in public spending, especially on entitlements, or on reaching an agreement on raising revenues is less likely than we previously assumed and will remain a contentious and fitful process."

Let's leave aside the "either/or" setup in this statement, though I invite you to pause and think about that for a moment....

Pondered? Good, OK shelf that for a moment and let's continue with Hartmann's position here.  He makes the claim, speculating about media motives, that it could just be that reporters, all of them, are high income earners who don't want to pay anymore taxes. OK, fair enough Mr. Hartmann.  That may be true, but we have a hard time speculating about these folks motives.  Let's back that up with some facts, or perhaps, when we consider the facts it actually turns out to be something much more significant in terms of how major media enterprises (all of them) are structured.

Not very long ago, relatively speaking, social critic and linguist Noam Chomsky penned a pamphlet with a Aussie named Edward Herman.(For those of you who would like to read and excerpt of the piece go here) Essentially, Chomsky and Herman lay out the history and structure of modern day mass media producers. 

As consumers of information it is convenient for us to have a professional class of reporters working for companies that serve as information dispensaries and amplifiers (hint: this a is key function).  They work to "amuse, entertain, and inform, and to inculcate individuals with the values, beliefs, and codes of behavior that will integrate them [citizens, immigrants, etc] into the institutional structures of the larger society."  Reporters are an integral part of this process as they are employed by these companies.  They are the collectors, shapers, and voices that put information "out there."  

If there is anything that can be said about this situation, and it is a huge "gorilla in the room",  is that the US is going through a class struggle at the moment.  Of course, we might argue that this has always been the case, but excepting that, let's just say that there is a class struggle happening now.  The labor uprisings in Wisconsin, Florida, Rhode Island, Pennsylvania, and others are obvious evidence of it. But the media coverage of the debt deal is a more subtle example. It is obvious when one thinks in terms of class struggle, but it is less obvious in a country whose middle and lower classes have been taught to think of themselves, less as a class, but more as individuals who are temporarily embarrassed millionaires. The media, all of it, has had a role in proliferating this world view. So why don't we seen it?  Take the US as an example here. Chomsky and Herman state that:

"It is much more difficult to see a propaganda system at work where the media are private and formal censorship is absent. This is especially true where the media actively compete, periodically attack and expose corporate and governmental malfeasance, and aggressively portray themselves as spokesmen for free speech and the general community interest. What is not evident (and remains undiscussed in the media) is the limited nature of such critiques, as well as the huge inequality in command of resources, and its effect both on access to a private media system and on its behavior and performance."

Indeed, this is what has yielded the importance regarding the actions of Daniel Ellisberg, in leaking the Pentagon papers, and what information clearing houses like Wikileaks are doing.  They aren't just changing the rules, they are changing the game. (If you feel like sitting through an hour+ talk, I suggest you check this video out.  It is a talk given by Slovaj Zizeck, the later lisping Elvis of philosophy, and Julian Assange. Break it up into pieces and watch it, I promise you won't be disappointed)

But what are the rules?  Well in order for us to understand that we have to understand the function of propaganda models and how they are used in the media.  In the US, paraphrasing Chomsky and Hermann, a propaganda model has historically taken as its focus the inequality of wealth and power and its "multilevel effects on mass-media interests and choices."  In other words, it lays out the paths "by which money and power are able to filter out the news fit to print or [show on TV], marginalize dissent, and allow the government and dominant private interests to get their messages across to the public." The messages come from two sides of the political isle in the US, maybe from a third -i.e. independent position- but the one thing that is never discussed is the role of special interest and money in the creation of the news.  

Chomsky and Hermann list a few of the ingredients in the propaganda model, "filters" that strain out "news not worth of broadcast." The authors list these under the 'following headings': 

• (I) the size, concentrated ownership, owner wealth, and profit orientation of the dominant mass-media firms; 
• (2) advertising as the primary income source of the mass media; 
• (3) the reliance of the media on information provided by government, business, and "experts" funded and approved by these primary sources and agents of power; 
• (4) "flak" as a means of disciplining the media; and 
• (5) "anticommunism" [or more currently "antisocialism", anti-extremeism] as a national religion and control mechanism. These elements interact with and reinforce one another. The raw material of news must pass through successive filters, leaving only the cleansed residue fit to print. They fix the premises of discourse and interpretation, and the definition of what is newsworthy in the first place, and they explain the basis and operations of what amount to propaganda campaigns.

Not surprisingly then, the domination of the media by the monied elite interests -interests that doubtless exist on both sides of the isle- marginalize any real dissent. 

"The results from the operation of these filters occurs so naturally that media news people, frequently operating with complete integrity and goodwill, are able to convince themselves that they choose and interpret the news "objectively" and on the basis of professional news values."

So, in relation to the lack of reporting regarding the explicit fault of Republicans in the credit downgrade of the US,  it is not mere laziness on the part of the media.  As I mentioned earlier in the statement pertaining to "the rules", when we consider that these reporters and news corporations are operating within the limits of, what Chomsky and Hermann refer to as "the filter constraints," they often are generally seen -by a public too busy to vet the news broadcasts- and see themselves as objective.  These filters and constraints, according to the authors, "are so powerful, and are built into the system in such a fundamental way, that alternative bases of news choices are hardly imaginable." 

 Let me just sign off with these brief statements.  I don't expect you all to buy Chomsky and Hermann hook-line-and-sinker, but we must understand that their propaganda model is a powerful tool for explaining systemic breakdowns in media coverage. Let also me point out, to those of you skeptics, that among the many critical media scholars -including many who are vocal critics of Chomsky and Hermann- there is a virtual consensus  that the broad patterns of news representation are aptly described by the Propaganda Model and that it is especially true in regard to assessing private commercial media.  

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I would like to include this as some supplemental reading material.