The Great NSA scandal


The NSA is gathering metadata on phone calls. Numbers, times, dates, duration, frequency. Nothing indicates there is eavesdropping on conversations.

Sounds to me like the NSA is doing what the NSA should be doing, which is looking for calls to known 'threats' and vice versa, and developing patterns indicating such activities.

The GOP and the Tea Partiers and other affronted and outraged groups and individuals really need to go find some other scandal to unearth. I'm sure there are plenty of them.

I don't like the secret courts, however. Never have, and never will. That's a bone that sticks in the craw ... but that they are doing this is not worth the ink and bytes being wasted on all that outrage. And I really would like to know what safeguards, if any, are in place regarding eavesdropping. It's one thing to 'pen register' all this data, but it's another entirely to eavesdrop. Snowden said, in this excerpt:

"I, sitting at my desk, had the authority to wiretap anyone, from you or your accountant to a federal judge to even the president if I had a personal email."

 But 'wiretap' refers to standard telephony, not wireless, not cell. And does Snowden understand the difference between 'wiretap' and data gathering via pen register? 'Wiretap' to me indicates 'eavesdropping', which means listening in on conversations. While I would love to see the Obamanians hoist by their gonads, I'm going to have to have more reliable sources than this little turd in the punchbowl. Consider that he fled to Hong Kong, claiming he wants asylum in a place that believes in 'free speech.' Hong Kong? Free speech? Really? And there's the little detail that Hong Kong will extradite him in a New York minute. The latest has him wanting to go to Iceland. Snowden clearly is not a rocket scientist.

Back in the day, when law enforcement was working organized crime, RICO, and other surveillances were it would be very useful to find out who was calling whom, a device called a 'pen register' was used.

What follows is an excerpt from Wiki, which is a very good presentation in lay terms as to why this whole NSA thing is a bag of wind:


In Katz v. United States (1967), the United States Supreme Court established its "reasonable expectation of privacy" test. It overturned Olmstead v. United States and held that wiretaps were unconstitutional searches, because there was a reasonable expectation that the communication would be private. The government was then required to get a warrant to execute a wiretap.

Ten years later the Supreme Court held that a pen register is not a search because the "petitioner voluntarily conveyed numerical information to the telephone company." Smith v. Maryland, 442 U.S. 735, 744 (1979). Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company.

The Smith decision left pen registers completely outside constitutional protection. If there was to be any privacy protection, it would have to be enacted by Congress as statutory privacy law.

Pen Register Act

The Electronic Communications Privacy Act (ECPA) was passed in 1986 (Pub. L. No. 99-508, 100 Stat. 1848). There were three main provisions or Titles to the ECPA. Title III created the Pen Register Act, which included restrictions on private and law enforcement uses of pen registers. Private parties were generally restricted from using them unless they met one of the exceptions, which included an exception for the business providing the communication if it needed to do so to ensure the proper functioning of its business.

For law enforcement agencies to get a pen register approved for surveillance, they must get a court order from a judge. According to 18 U.S.C. § 3123(a)(1), the "court shall enter an ex parte order authorizing the installation and use of a pen register or trap and trace device anywhere within the United States, if the court finds that the attorney for the Government has certified to the court that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation."[6] Thus, a government attorney only needs to certify that information will 'likely' be obtained in relation to an 'ongoing criminal investigation'. This is the lowest requirement for receiving a court order under any of the ECPA's three titles. This is because in Smith v. Maryland, the Supreme Court ruled that use of a pen register does not constitute a search. The ruling held that only the content of a conversation should receive full constitutional protection under the right to privacy, since pen registers do not intercept conversation, they do not pose as much threat to this right.

Some have argued that the government should be required to present "specific and articulable facts" showing that the information to be gathered is relevant and material to an ongoing investigation. This is the standard used by Title II of the ECPA with regard to the contents of stored communications. And others believe probable cause should be required; Daniel Solove, Petricia Bellia, and Dierdre Mulligan say a warrant and probable cause should be necessary, and Paul Ohm argues that standard of proof should be replaced/reworked for electronic communications altogether.

The Pen Register Act did not include an exclusionary rule. While there were civil remedies for violations of the Act, evidence gained in violation of the Act can still be used against a defendant in court. There have also been calls for congress to add an exclusionary rule to the Pen Register Act, as this would make it more analogous to traditional Fourth Amendment protections. The penalty for violating the Pen Register Act is a misdemeanor, and it carries a prison sentence of not more than one year.


Section 216 of the 2001 USA PATRIOT Act expanded the definition of a pen register to include devices or programs that provide an analogous function with internet communications. Prior to the Patriot Act, it was unclear whether or not the definition of a pen register, which included very specific telephone terminology, could apply to internet communications. Most courts and law enforcement personnel operated under the assumption that it did, however the Clinton administration had begun to work on legislation to make that clear, and one magistrate judge in California did rule that the language was too telephone-specific to apply to Internet surveillance.

The Pen Register Statute is a privacy act. As there is no constitutional protection for information divulged to a third party under the Supreme Court's expectation of privacy test, and the routing information for phone and internet communications are divulged to the company providing the communication, the absence or inapplicability of the statute would leave the routing information for those communications completely unprotected from government surveillance.

The government also has an interest in making sure the Pen Register Act exists and applies to internet communications. Without the Act, they cannot compel service providers to give them records or do internet surveillance with their own equipment or software, and the law enforcement agency, which may not have very good technological capabilities, will have to do the surveillance itself at its own cost.

Rather than creating new laws regarding Internet surveillance, the Patriot Act simply expanded the definition of a pen register to include computer software programs doing Internet surveillance. While not completely compatible with the technical definition of a pen register device, this was the interpretation that had been used by almost all courts and law enforcement agencies prior to the change.

You can read the entire article here:   Pen Registers

Meanwhile, the self-righteous little prick who violated any number of laws regarding the handling of classified data, has fled to Hong Kong where he is seeking asylum, all the while claiming he isn't going 'to hide.'

Well, then, young Mr. Snowden, why don't you just come on back to the ol' US of A?