NSA

Spying on the Line

A criminal case provides an opportunity to challenge the NSA's warrantless wiretapping.

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Last Friday the Justice Department acknowledged for the first time that it is using evidence derived from warrantless wiretapping to prosecute someone. That development sets the stage for a Fourth Amendment challenge to a law that gives the National Security Agency amazingly broad discretion to eavesdrop on Americans' phone calls and read their email.

In February the Supreme Court rejected a lawsuit brought by attorneys, journalists, and human rights activists who complained that the NSA's snooping had compromised the privacy of their international communications. The Court deemed that injury too speculative, since the plaintiffs could not prove the government was spying on them.

Not so Jamshid Muhtorov, a refugee from Uzbekistan who was arrested in Chicago last year. The FBI says Muhtorov, a Denver resident who had recently quit his job as a truck driver, was on his way to Syria, where he planned to fight Bashar al-Assad's regime as a member of the Islamic Jihad Union, a terrorist group dedicated to overthrowing the Uzbek government and replacing it with a Muslim theocracy. He was charged with "provision of material support [i.e., himself] to a designated foreign terrorist organization."

Last week the Justice Department revealed that the case against Muhtorov relies on evidence "obtained or derived from acquisition of foreign intelligence information." That means he can challenge the constitutionality of the warrantless wiretapping that Congress authorized when it amended the Foreign Intelligence Surveillance Act (FISA) in 2008.

The FBI says Muhtorov fell under suspicion because he contacted "Muhammad," the administrator of a website linked to the Islamic Jihad Union, which suggests the NSA was monitoring email to the site. Based on Muhtorov's exchanges with Muhammad, it seems, the FBI obtained court orders authorizing it to examine all of Muhtorov's email and tap his phone lines.

The initial information about Muhtorov apparently came from surveillance under Section 702 of the FISA Amendments Act (FAA), which allows the NSA to monitor communications without an individualized warrant as long as collecting foreign intelligence is "a significant purpose" and the "target" is a foreigner believed to be located outside of the United States. That authority is much broader than you might surmise from this particular case.

The American Civil Liberties Union calls the FAA "the most sweeping surveillance law ever passed by Congress." Instead of a specific warrant naming the target, based on probable cause to believe surveillance will reveal evidence of a crime, the law authorizes general warrants based on nothing more than the government's vague assertions and assurances. The government need not identify targets or locations, and it need not even allege that anyone whose communications it plans to monitor is a spy, a terrorist, or any other sort of criminal.

As the ACLU explains, "The absence of an individualized suspicion requirement means that the government can engage in the wholesale collection of Americans' international communications." For example, it can "knowingly and intentionally collect all communications between the New York and London offices of Amnesty International" or "all communications between Human Rights Watch in New York and human rights researchers in South and Central Asia." In fact, "under the FAA the government can obtain all communications between New York and London so long as the ostensible targets for this mass acquisition are non-U.S. persons believed to be in the United Kingdom."

Furthermore, the "target" who is "believed" to be abroad may in fact be in the U.S. When people communicate by email or mobile phones, they can be anywhere in the world. Hence the NSA is effectively authorized to monitor purely domestic communications without a warrant.

During a telephone call recorded by the government, the FBI says, Muhtorov and an associate "cursed whoever might be listening in on their conversations and called upon Allah to punish those who do so." I don't know if law-abiding Americans can count on God to stop the government from eavesdropping on their private communications. But the Supreme Court might.

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26 responses to “Spying on the Line

  1. Gotta love our bought and paid for lawmakers. Best politics money can buy.

    Got-Privacy.com

  2. He was charged with “provision of material support [i.e., himself] to a designated foreign terrorist organization.”

    Only Barack Obama and John McCain are allowed to do that.

    I wonder if federal prosecutors are going ahead with this because they don’t care if the Supreme Court ultimately curtails the intelligence community’s warrantless wiretapping, or if they figure this court won’t side with privacy over the government’s wants.

    1. Or they have the Supreme Court under 24 hour surveillance and they know what the Justices do under their robes.

    2. You forgot Peter King.

      1. Vote Republican.

      2. Yes, I should have included a Republican in my list.

  3. I wonder if federal prosecutors are going ahead with this because they don’t care if the Supreme Court ultimately curtails the intelligence community’s warrantless wiretapping, or if they figure this court won’t side with privacy over the government’s wants.

    As far as I can tell from the reaction of the NSA/CIA/FBI/DOJ to the public outrage over the surveillence, they don’t give a fuck. They’re keeping tabs on you and that’s that. Now shut the hell up and pick up that Cheerio you dropped on the floor and remember to pick up a nice bottle of wine for when you go over to the Sullivans for dinner tonight like your wife told you. Also, your dog threw up behind the chifforobe last night.

    1. It is believable that an order by the Supreme Court to knock all this shit off might just be ignored. Oh, they will give lip service to obeying, but in secret they will just keep doing it.

  4. the “target” who is “believed” to be abroad may in fact be in the U.S.

    “It’s too late to turn back now
    I believe, I believe, I believe I’m falling in love
    I found myself phoning her at least ten times a day
    It’s so unusual for me to carry on this way
    I tell you …
    I can’t sleep at night”

  5. FBI to Lavabit founder: ‘Do you really think users trust you over us?’
    …Levison said he was willing to provide the FBI limited access to what they wanted, but the bureau told him that was not sufficient, insisting on full access.

    He recalls lead prosecutor Jim Trump asking, “Do you really think users trust you over us?” Levison answered in the affirmative and Trump replied that Levison was “lucky” he had not already been arrested.

    “I was outnumbered eight to one,” said Levison speaking of his interaction with federal agents. “They were taking offense that I was saying these things. They didn’t seem to understand at all what they were doing.”

    Levison said the FBI responded to concerns about overreach by saying, basically, “Don’t worry. We’re the federal government. We wouldn’t do that.”…

    1. Trump replied that Levison was “lucky” he had not already been arrested.

      Then Levison replied that Trump was “lucky” *he* had not already been arrested and was immediately arrested.

      1. it’s unlucky arrests all the way down

    2. He recalls lead prosecutor Jim Trump asking, “Do you really think users trust you over us?”

      Well, the only possible reason someone might not trust the government is that they are doing something wrong. There is no other explanation.

      1. There is no other explanation.

        *** rising intonation ***

        What about “They just haven’t explained clearly enough”?

      2. I trust people to act in their self-interest.

  6. The FBI says Muhtorov, a Denver resident who had recently quit his job as a truck driver, was on his way to Syria, where he planned to fight Bashar al-Assad’s regime as a member of the Islamic Jihad Union

    Doesn’t Obama want to give those same groups weapons and logistical support? I don’t really see how someone planning on going overseas to fight a foreign government is terrorism, unless you count things like Eagle Squadron as terrorism.

    1. Doesn’t Obama want to give those same groups weapons and logistical support?

      Obama is currently giving those same groups weapons and logistical support.

      Not that you’d ever hear a peep about it on the news.

      Allahu akbar.

    2. it’s the organization he intended to join. He could have gone over there to join the Syrian boy scouts and been fine.

  7. I don’t know if law-abiding Americans can count on God to stop the government from eavesdropping on their private communications. But the Supreme Court might.

    BWAHAHAHAHA!!!!! They’ll just determine that it’s a penaltax and call it all good.

  8. Wow, it is as if COINTELPRO never ended. Maybe someone should be dusting off the records of Mark Felt’s trial?

  9. This is nothing compared with the warrantless information being secretly shared by the NSA with law enforcement agencies and the DEA.

  10. That development sets the stage for a challenge to the Fourth Amendment

    FIFY

  11. DOJ cherry-picked this one to be a test case to try to get some favorable rulings on the evidentiary question. Unsympathetic defendant, foreigner lawfully present in the US. He had 4th Amendment rights, yes, but because of the bad facts they hope a court would be inclined to see his rights as less deserving of protection than the rights of, say, a citizen journalist. If the judge excludes the evidence he or she will be accused of letting a terrorist off on a technicality.

  12. my friend’s aunt makes $73/hr on the computer. She has been without a job for 10 months but last month her pay was $14848 just working on the computer for a few hours. view it
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  13. Wiretapping makes me feel insecure.

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