Darlene Storm

Government still spying on emails and phone calls with no stinkin' warrant

May 09, 2013 12:37 PM EDT

The FBI has been blaming the Internet for hampering its eavesdropping and wiretapping surveillance powers; for years, the agency has been claiming that is “going dark” and pushing to update CALEA (Communications Assistance for Law Enforcement Act) by requiring backdoors in all web communications. But after the FBI tweaked its proposal to focus on fining companies that do not comply with wiretap orders, the Obama administration is “on the verge” of backing the FBI’s plan.

The New York Times reported, “Under the proposal, officials said, for a company to be eligible for the strictest deadlines and fines — starting at $25,000 a day — it must first have been put on notice that it needed surveillance capabilities, triggering a 30-day period to consult with the government on any technical problems.”

All digital communications captured, is there a secret warrant to sidestep all Fourth Amendment rightsHowever, the CDT’S (Center for Democracy and Technology) Gregory Nojeim stated, “I think the FBI’s proposal would render Internet communications less secure and more vulnerable to hackers and identity thieves.” Albert Gidari Jr., who advises technology companies on law enforcement matters, further argued that if the FBI proposal becomes a reality, then, “We’ll look a lot more like China than America after this.”

Almost a year ago, CNET’s Declan McCullagh reported that the FBI went ahead and “formed a secretive surveillance unit” at the new Domestic Communications Assistance Center. The unit’s goal was “to invent technology that will let police more readily eavesdrop on Internet and wireless communications.”

Come back with a stinking warrantYesterday, the ACLU said it had received documents from the FBI that suggest the feds do indeed read emails without a warrant. CNET reviewed those internal FOIA request documents before adding, "The U.S. Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files." Although six U.S. Attorneys’ offices told the ACLU that “they have not authorized a request to a court for access to the contents of electronic communications without a warrant” since 2010; there is evidence that the FBI did so in March 2013.

2010 was when "the Sixth Circuit Court of Appeals decided in United States v. Warshak that the government must obtain a probable cause warrant before compelling email providers to turn over messages to law enforcement." However, “confirmation that the FBI is reading some emails without a warrant can be found in a recent opinion issued by a federal magistrate judge in Texas.” The ACLU added, “This is an affront to the Fourth Amendment.”

Granted, the New York Times reported on CALEA and the ACLU reported on ECPA (Electronic Communications Privacy Act), but both cases deal with the FBI and surveillance of digital communications. Both seem to ignore Americans’ Fourth Amendment protections. However, regarding the FBI’s new proposal to fine companies that don’t comply with setting up backdoors into web communications, FBI General Counsel Andrew Weissmann said, “This doesn’t create any new legal surveillance authority. This always requires a court order. None of the ‘going dark’ solutions would do anything except update the law given means of modern communications.”

All digital communications are captured, none are secure

Yet questions remain. For example, former FBI counterterrorism agent Tim Clemente recently claimed that the government captures and stores all your phone calls and all other digital communications. CNN was talking about if the FBI could find out from a past phone conversation whether or not Katherine Russell,  widow of the deceased suspect Tamarlan Tsarnaev, had participated in, or had any knowledge of, the bombing plot.

Clemente claimed, “We certainly have ways in national security investigations to find out exactly what was said in that conversation. It's not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.” He added, “Welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not.”

In another interview with CNN, Clemente stated, “I'm talking about all digital communications are -- there's a way to look at digital communications in the past. I can't go into detail of how that's done or what's done. But I can tell you that no digital communication is secure.”

Some people complain that the intelligence community should have connected the dots and kept a better track on Tsarnaev before the Boston Marathon bombing. “We have no idea how many potential ‘dots’ the FBI, CIA, NSA and other agencies collect, but it's easily in the millions,” wrote Bruce Schneier. “Piling more data onto the mix makes it harder, not easier. The best way to think of it is a needle-in-a-haystack problem; the last thing you want to do is increase the amount of hay you have to search through.”

There’s Gold in Them Thar Yottabytes

MeriTalk, “an online community and go-to resource for government IT,” recently “surveyed 17 visionary big data leaders” and then published “Big Data, Big Brains.” The study showed that “nearly all of the panelists cited some form of analysis paralysis or risk of getting lost in the review of the data.” Some of the key findings in the Big Data Gap Report were that “just 60% of Federal IT professionals say their agency is analyzing the data they collect and less than half (40%) are using their data to make strategic decisions.” It was estimated that it could take “at least three years” for federal agencies to “fully take advantage of Big Data.”

Although there is “value” in the vast exabytes and zettabytes of data, 44% of the agencies lack personnel to leverage the massive data and 46% lack the computational power. The findings concluded, “Big Data may hold big promise, but until IT solutions are in place to address the explosive growth of data, it is nothing but a Big Problem.” The MeriTalk Big Data study claimed that “there’s gold in them thar yottabytes,” so first let’s wrap our heads around the vastness of a yottabyte: “To store a yottabyte on terabyte-sized hard drives would require a million city block size data-centers, as big as the states of Delaware and Rhode Island.”

I do not consent to the search of this device, come back with a warrant The NSA has repeatedly denied domestic spying accusations and that it has created dossiers on Americans. NSA whistleblowers repeatedly claim that the feds are collecting all our digital communications. You can bet there is no one-size-fits-all warrant for that, unless it’s hidden away in the Patriot Act secret orders. Would those golden yottabytes include emails, Twitter direct messages, Facebook or other online chats? William Binney claimed that at the new datacenter in Utah, the NSA will go beyond archiving to indexing and “sorting information that they're collecting, which is email, FTPs [file transfers], those kinds of things, Twitter things, all kinds of data about everybody.”

If Clemente is to be believed, that no digital communications are secure, and all phone calls are captured as we speak, then the feds are not “going dark” regardless of current ECPA or CALEA. It may not be easy to data-mine and pinpoint one conversation in trillions, but do you suppose the feds have a warrant to eavesdrop and capture all US digital communications?

All signs point to the fact that Americans’ Fourth Amendment protections have already changed. Is the push for a “new interpretation of the Constitution,” or for updating CALEA and ECPA, mere formalities to legalize pilfering our digital communications with no stinkin’ warrant required?