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Bush-era NSA wiretap violations exposed

US hawks not amused

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The New York Times has broken the latest news in the National Security Agency's warrantless wiretapping odyssey: that the NSA has been routinely scanning American communications at a rate far beyond what had been envisioned by Congress when the telecoms immunity and FISA wiretapping revisions passed last summer.

Even more salacious was the latest revelation of Bush-era overreach: according to the report, either in 2005 or 2006, the agency sought to wiretap a member of Congress surreptitiously during a congressional fact-finding trip to the Middle East. Unnamed intelligence higher-ups with some political acumen squelched the idea, though the effort reveals much about the breadth and scope of the NSA's ambitions.

That the NSA has repeatedly and as a matter of practice overstepped its bounds will surprise few of its critics, including some here at El Reg. What makes the latest revelations intriguing - apart from the intelligence community's constitutionally dubious interest in a member of the legislative branch - is that they provide further evidence that the NSA is still engaged in exactly the kind of activities that initially created such a firestorm, and that the agency promised to halt, What activities, exactly? Mass, algorithmic, data mining dragnets that ensnare ordinary Americans.

When the FISA law came up for review last year, many critics wondered why the law needed to be revised if the NSA already had the ability to obtain warrants retroactively, which it did routinely. Backdoors had been built into the American telecoms infrastructure back in the 1990s allowing law enforcement instantaneous access to all telecommunications passing through the US, so, really, what was the problem?

After apologists for the agency repeatedly claimed the FISA law needed to be brought "technologically" up to date, critics - including those here at El Reg - began to suspect that the revised FISA law was nothing more than a gussied up version of the very same program that caused such outrage in the first place.

Under the revised law the NSA no longer needed "warrants": "targets" had to be identified, and a method designed to "minimize" surveillance of the innocent put forth. Even so, information obtained on the untargeted could be used provided that it was not obtained "intentionally."

As we've noted in the past, algorithms are nothing more than mathematical models and are utterly incapable of forming intent. The revised law seemed to legalize the very activity it purported to halt.

Lo and behold, since the new law passed last July, "technical" complications have led to "inadvertent" "over-collection" issues. Well, stop the presses.

Ironically, the diffuse nature of the internet, which was originally perceived to be advantageous in the event of an enemy strike on the American infrastructure, is now making it difficult for the NSA to adhere to the modest requirement that warrantless surveillance targets be "reasonably believed" to be outside the US.

The activities were uncovered by the FBI in a semiannual review of NSA practices, and were described as "systemic." Since the original warrantless surveillance was described as impacting "hundreds, perhaps thousands" of Americans in the Times in December, 2005 - a number that was greeted with considerable skepticism by critics, particularly when the Bush administration continued to revise the number downward - the new language almost certainly reflects the breadth of the FISA revisions rather than a new-found honesty in Washington.

The Department of Justice was concerned enough that the new Attorney General, Eric Holder, appeared personally before the FISA court to answer questions about the program. Congress, too, is now concerned, to no one's surprise: Senator Dianne Feinstein, a fairly hawkish legislator from California, has promised hearings on the issue.

It turns out even members of Congress would rather not be spied on. ®

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