Tommorow is the big day for the EFF's AT&T NSA spying case. There is a public hearing in the morning to determine whether or not the Federal Government will be able to assert the State Secret's Privilege to squash the case. Wired has tons of coverage, including information from the EFF's exhibits, which I'm linking here.

The normal work force of unionized technicians in the office are forbidden to enter the "secret room," which has a special combination lock on the main door. The telltale sign of an illicit government spy operation is the fact that only people with security clearance from the National Security Agency can enter this room.

The above-referenced document includes a diagram (PDF 3) showing the splitting of the light signal, a portion of which is diverted to "SG3 Secure Room," i.e., the so-called "Study Group" spy room.

Since the San Francisco "secret room" is numbered 3, the implication is that there are at least several more in other cities (Seattle, San Jose, Los Angeles and San Diego are some of the rumored locations), which likely are spread across the United States.

Now, the description offered here would be valid for a CALEA compliance room. The existance of these things doesn't demonstrate what is being surveilled or why or with what authority. But the technical information is likely of interest to the geeks on this site, including the tool used for collecting data (which is a common CALEA compliance tool). There is also a picture of the room.

The State Secrets Option, BTW, is the nuclear option in law. If this case proceeds it will be a watershed event, particularly given that this option was accepted in the rendition case of Maher Arar. Getting tortured by a foreign government is a bit more serious then getting your phone tapped.

Of course, consideration of this matter leads one rapidly to worry that that if the intelligence or security establishment commits a crime, and you are the victim of that crime, you have no recourse. This tends to indicate that the realm of intelligence and national security is an autonomous zone, where the only real law is "trust us."

Wired News: AT&T Whistle-Blower's Evidence

For some reason I haven't memed this blog. Its a really good collective blog on surveillance in the US with loads of decent data points. Kevin Poulsen is one of the bloggers.

27B Stroke 6

Our popular culture, our dirt-ball street culture teaches us from childhood that the CIA is listening to *all* of our telephone calls and reading *all* of our email anyway.

I keep seeing that in the lower discourse of the Internet, people saying, "Oh, they're doing it anyway." In some way our culture believes that, and it's a real problem, because evidently they haven't been doing it anyway, and now that they've started, we really need to pay attention and muster some kind of viable political response.

Boing Boing: William Gibson on NSA wiretapping

The tin foil hat crowd has always assumed that the NSA was either directly monitoring domestic communications in the US, or at least that a foreign ally was doing it and sharing the results with them. This never really bothered me, because I assumed that the NSA wouldn't care about anything I would ever do. The NSA is mostly concerned with warfare, in which the rules of civil society don't really apply, and the only rules that matter are the ones prohibiting genocide and sadistic treatment of people. If I was ever interested in commiting espionage on behalf of a nation state, I would assume that all the rules were off and I would act accordingly.

The problem is that terrorism breaks down the barriers between what was once the domain of war and the domain of law enforcement. In the wake of 9/11 we have vigorously engaged in information sharing between domestic law enforcement and intelligence. So, wereas we might not have a problem with the NSA spying domestically in the context where they are really only looking for Soviet Spies, our feeling might be different if they are really looking for anything illegal, and sharing that information with local authorities. What we have now is somewhere in the middle, and its likely to erode further.

The minute someone says that we could have caught such and such a child abuser or murderer if the NSA had only shared the information with the police, its over. They'll start sharing it, and they'll share more and more, and you'll have the surveillance state.

Some people embrace this. They figure it is inevitable. It probably is. And they figure they aren't going to break the law, so why should they worry. I think our system often produces the wrong laws, and too many of them, and whats more, the aura of omnipresent suspicion and fear that accompanies the knowledge of the panopticon of the police state sucks the life right out of a culture. Its no longer reasonable to conceive of such a place as a "free country."

Whats worse, it is inevitable as these loopholes widen and the information sharing spreads that these systems will be used for political and economic manipulation, criminally.

This is the challenge our generation faces. How can you avoid creating a police state in an environment litered with terrorists and murderers and child abusers when omnipotent technology is at hand and it can help fight them? Is it even possible?

The Fourth Amendment issues are straightforward. It sounds like the program involves only non-content surveillance, which means that it presumably doesn’t implicate the Fourth Amendment under Smith v. Maryland.

You have no 4th amendment right to things that computers log.

First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes. And petitioner did not demonstrate an expectation of privacy merely by using his home phone rather than some other phone, since his conduct, although perhaps calculated to keep the contents of his conversation private, was not calculated to preserve the privacy of the number he dialed. Second, even if petitioner did harbor some subjective expectation of privacy, this expectation was not one that society is prepared to recognize as "reasonable." When petitioner voluntarily conveyed numerical information to the phone company and "exposed" that information to its equipment in the normal course of business, he assumed the risk that the company would reveal the information [442 U.S. 735, 736] to the police.

Think about that the next time you use Google. BTW, I don't like this precident either.
Here is an insightful comment from the Volokh Conspiracy:

It is a planned tactic. Disclose early a lesser problem, deny that it is really a problem, hint at something else while denying it and then, later, disclose what was initially denied.

If enough noise is heard, it is termed "old news," and we just need to move on. Too many people forget about it or are labeled "tin-foil hats."

All of this intrusions into our lives is for our good and safety.

It is a way to "slow boil" the mythological frog.

OrinKerr.com » Thoughts on the Legality of the Latest NSA Surveillance Program

Over at National Review Online, Adam White defends the new nominee to lead the CIA, General Michael Hayden, for his statements about the meaning of the Fourth Amendment.

This is, er, noteworthy. I've been looking for a reference on this and Orin Kerr was nice enough to provide one. Hayden is getting butchered for his comment about the 4th Amendment being more about "reasonableness" then about "probable cause." Frankly, he is "correct" insofar as his explanation of what the law is. I happen to not like this particular interpretation, but Hayden is not a justice. The people to be unhappy with are the courts that set these precidents. Hayden was just explaining what they have decided.

The Constitution doesn't literally say that you always need a warrant. It says no unreasonable searches and seizures and no warrants shall issue.... To me, it plainly means that there will never, ever be an unreasonable search, and we're not going to give you permission to do any searching unless you meet certain requirements. Thats how it seems to read to me. Courts have decided that it actually means that warrants are only required when they decide that they are required, and its possible that some searches where a warrant isn't required are reasonable, and those are legal. Thus, the erosion process begins...

A choice quote:

I think it’s fair to say that the development of the Fourth Amendment since 1971 has substantially undercut the idea that the exceptions to the warrant requirement are “few” or “well delineated."

What I find most entertaining about this is that its a perfect example of a place where a viewpoint that is "strict constructionalist" or "originalist" is unlikely to be popular with conservatives.

OrinKerr.com - Does Michael Hayden Understand the Fourth Amendment?

GE Ion Track’s revolutionary walk-through portal quickly screens people for contraband without physical contact. Thanks to our patented Ion Trap Mobility Spectrometer (ITMS®) technology, EntryScan3 detects a wider range of explosives and narcotics with unprecedented sensitivity.

U:Frankly, deploying an automated narcotics screening device at airports is almost certainly unconsitutional. The airport security screening is only legal because it is limited to protecting the safety of flights. The government has argued that if they happen to find evidence of other crimes in the course of looking for weapons and explosives, this is OK. They had a legitimate reason to perform the search. However, if they deploy devices that are specifically designed and configured to perform searches which have nothing to do with airplane safety they are clearly operating outside of that scope. These devices CAN be configured to only look for explosives. The question is, are they?

U2: A smoking gun? (They could simply be using these in narcotics mode at customs checkpoints, where its legal...)

Safe Passage System’s security solutions were expressly developed to provide the same level of explosives and narcotics screening increasingly deployed at airports nationwide, but on a mobile, on-demand basis.

Kim Cameron’s Identity Weblog » GE Puffer Stinks of Dr. Strangelove

Can you fly without ID? According to what the government told the 9th Circuit Court of Appeals in the Gilmore case, you can – you need only submit to secondary screening in order to fly anonymously.

Please try doing some or all of your travel by declining to show ID and report back about what happens to you.

If you have some time on your hands and some big ass balls in your pants there is a significant legal issue here you can contribute to. All you have to do is go to an airport and try to get on a plane without showing ID. They aren't supposed to arrest you for trying this...

You ought to be able to travel freely without identifying yourself to the government. Totalitarian regimes have used secret laws in the past to control the free association of people. I'm sure that these travel restrictions were limited to the necessary protection of the national security interests of their respective states. Subversive people associating with eachother is a national security issue. We presently have a secret list of subversive people who are prohibited from flying and an ID requirement for flight. Is this list being abused? Who is on the list? Why are people put on the list? Almost nobody knows.

The 9th circuit is saying that its really not a problem because there really is no ID requirement and you can just get on planes so long as you are willing to allow them to search you for weapons. I had no idea! I'll bet TSA's agents don't know this either.

TSA cannot sit in court and say you don't need an ID to fly, and then put signs all over airports saying that you do need ID to fly and refuse to let people fly without ID. They either need to defend their ID requirement in court or actually not have one.

If you can't get on a plane without showing ID, TSA is lying.

Can you really fly without showing ID?

First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro's great stumbling block in his stride toward freedom is not the White Citizen's Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to "order" than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: "I agree with you in the goal you seek, but I cannot agree with your methods of direct action"; who paternalistically believes he can set the timetable for another man's freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a "more convenient season."

This is probably more interesting, and timely, then Gore's speech.

Martin Luther King - Letter from Birmingham Jail

One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.

Judges on Surveillance Court To Be Briefed on Spy Program