Phone calls, e-mails, and now search data. Where will Bush stop?

Phone calls, e-mails, and now search data. Where will Bush stop?

Summary: First, it was in the interests of national security.  Now, it's in the interest of childrens' rights (particularly those that could be the victims of child pornography).

TOPICS: Government

First, it was in the interests of national security.  Now, it's in the interest of childrens' rights (particularly those that could be the victims of child pornography).  Already in the midst of a controversy over the way the President authorized eavesdropping on international phone calls and e-mails (see CNN's coverage of Vice President Dick Cheney's defense of domestic spying), the Bush Administration has subpoenaed search giants AOL, Google, Microsoft, and Yahoo for a "random sampling" of the search data they keep as a result of the usage of their search engines.  According to's Declan McCullagh and Elinor Mills which quotes American Civil Liberties Union officials who claim familiarity with the subpoenas and the degree to which the search giants have responded,  AOL, Microsoft and Yahoo have apparently complied but Yahoo's compliance fell short of the Fed's expectations.  

However, in a move that will no doubt earn it some serious street cred with Internet users (should that be "Net cred?"),  Google is digging in its heels and is the only one of the four to stand up to the US Department of Justice (DOJ) by refusing to comply altogether.  Meanwhile, in the course of complying, the other search giants are claiming that they have not compromised the privacy of their users.  An AOL official disputed the ACLU's account saying "We did not and would not comply with such a subpoena. We gave (the DOJ) a generic list of aggregate and anonymous search terms, and not results, from a roughly one day period."  The story quotes a Microsoft official as saying "We were able to share aggregated query data (not search results) that did not include any personally identifiable information, at their request."

Of the four companies being subpoenaed, I can't help but wonder if Microsoft has the least amount of wiggle room when it comes to bending to the DOJ's will.   Dating back to the antitrust inquiries that began in the 1990's, Microsoft's relationship with the DOJ is somewhat checkered.  The company's behavior is constantly scrutinized by regulators with the most recent incident to make headlines involving Microsoft's Windows Media Player.  In a telephone interview this morning, Harvard Law School visiting professor (also a co-founder of Harvard's Berkman Center on Internet & Society and the Chairperson in Internet Governance and Regulation at Oxford University) Jonathan Zittrain downplayed that possibility saying "Bureaucratically speaking, the  DOJ is organized into units.  The antitrust division is separate from the civil division (where this case is being handled) and I think you've essentially got a separate set of people working on these cases that don't have the time to talk to each other."

In the bigger picture, though (and on the heels of the domestic spying issue), the warrant for search data, particularly when there isn't an investigation into a specific case of wrongdoing, raises more questions about how far the Feds can and will go when it comes to mining domestic sources of information that many (including Google, apparently) believe to be off-limits to the government.  Most US-based Internet users, for example, use the Internet on the assumption that a record of their behavior (whether it includes personally identifiable information or not) won't fall into government hands. 

Perhaps the most obvious question is "where does it end?"  Does compliance with the DOJ's request set an ugly precedent that paves the way for the Feds to come back for a mile once they've taken an inch? Even if the data that Yahoo, Microsoft, and AOL turned over to the Feds was uncompromising in terms of privacy, with no particular criminal investigation taking place, what happens when the Feds see something they don't like? Can they just come back for more and take it? Not to be alarmist or extreme here, but is China -- where Yahoo and Microsoft (also this) have already had anti-democratic run-ins with that nation's government  -- on the other end of the spectrum along which domestic Internet surveillance policies are shifting and how far along that spectrum of chilling effects will the US shift?

In the context of what the framers of the US Constitution had in mind when they drafted the Fourth Amendment (the closest thing the Constitution has to a privacy amendment), Zittrain told me:

It's an inevitability that the government is simply being the government in wanting to enforce the law. To their benefit, there are more and more sources of information out there that are really useful and helpful than there ever were.  But, it's also incumbent on us collectively to start thinking about what the limits are to trolling such data.  We're overdue to rethink it.  Without any claim that there's anything nefarious going on by the government, you don't want to end up in a place where, should a Herbert Hoover or Nixon situation arise, the tools that are available to spy on their enemies (the kind that the Framers wanted to keep in check) are self-executing --  you don't want it so they can just go [and start trolling]."

By tools and self-execution, Zittrain told me he was referring to the most intrusive and dangerous kinds of searches that the framers understood the need for, but that also required additional steps or "speed bumps" before they could be undertaken.  Zittrain noted two important and useful speed bumps to self-executing searches.  The first of these is where the data is held by a third party like Google that can say "Hey, wait a minute" before it simply turns the data over to the government.  Referring to Google's refusal to satisfy the DOJ's request, yesterday, in his blog, World Wide Web Consortium general counsel Danny Weitzner wrote:

In this case, Google is assuming the role of privacy protector very similar to that which telephone carriers and cable companies have traditionally performed. Historically, it has often been phone companies who have protected, or at least sought to protect, their customers privacy against government access requests because of the simple fact that the telcos, not the individuals whose privacy is at risk, have the physical ability to grant or deny access to the government.

The second of Zittrain's so-called speed-bumps is where the data is actually held by the target of the search (eg: the target of a criminal investigation) and a warrant is required before the search can be executed.  For example, searching a suspected child pornographer's hard drive. 

According to Zittrain, these two examples of limits to self-executing searches have eroded in recent years.  Today for example, under the auspices of the Patriot Act, many searches no longer require a warrant.  Instead, says Zittrain, "it just takes a request on letterhead from the Executive Branch that says give us this information and you're not allowed to tell anybody or you can go to jail."  In place of the checks and balances (the "speed bumps") that the framers had in mind, Zittrain noted how now, we're just being asked to trust the government.  "The government is on its own honor when writing these requests.  Hopefully, they're writing them under the limitation of the statute."  Given the way the system has been abused when the checks and balances were in place (eg: Hoover, Nixon), falling back to a system of trust is clearly problematic and demonstrates to some extent, the brilliance of the framers who, in my opinion (at least in this case), had a preference for instruments over subjectivity (interpretation of the Constitution is a never ending debate that scholars dedicate their entire lives to).

According to Zittrain, another "erosion" -- an area where we've found ourselves suddenly trusting the government to do the right thing -- has to do with the amount of information that the government is already collecting and who is collecting it.  For example, Zittrain says that most of the data that the DOJ is trying to get from the search engine is probably already in the government's possession based on what the NSA is gleaning from the Internet.  "That doesn't mean that if the DOJ's statistician goes to the NSA that the NSA will give it to him" said Zittrain. "I'm just saying that they already have a trove and to search that, there's no outside permission or warrant required.  They're on their honor to use it and use it well.  Even if we presuppose that the government is acting not only honorably, but as it should because it's fighting the war on terrorism that we want them to in order to avoid an attack, overall, these approaches may not be the way to do it. You want the speed bumps in place that reflect framers' wisdom."

In briefly analyzing some of the legal documents associated with Google's position, Zittrain sees a request that's typical of the sort of data that a statistician at the DOJ might be looking for rather than a witch-hunt for the type of information that might compromise the privacy of specific Internet users.  That's one reason he suspects that Yahoo, AOL, and Microsoft went along with the request.  "It's possible that the legal departments of the companies looked at it and felt that it wasn't privacy intrusive" said Zittrain "They also might have made a legal judgement that if they fought the request, that they'd lose." But, on the chances that such information could still be culled from the data that DOJ collects, he also agrees with Google's position:

I applaud Google for fighting it because of the prospect that a given link in a search might well contain information that identifies the searcher.  Handing that information over to government (not in the context of investigation of wrongdoing) is problematic.  I think that there's essentially someone creative at the DOJ that said "we've been asked to prove that there's a bunch of [pornography] web sites out there that keep moving and changing to avoid the law and what better way to prove it than to go to the search engines." 

I applaud Google as well (not to be taken as a condemnation of Yahoo, Microsoft, or AOL).  Even if privacy data can't be culled from the data that the search company might turn over to the DOJ, we need companies with deep pockets to not only view this as another in a series of rights-eroding events, but to use their legal resources to help reverse the trend.

Topic: Government

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  • Would you shut up if...

    ...I pointed out that Clinton did the exact same thing?

    No, you wouldn't would you? Because with you people it's not about "national security issues" or even "the Constitution."

    It's about the fact that Mr. Bush is President, and frat-boy Kerry isn't.

    • No, I wouldn't..

      But not because of what you're implying... that I'm directing this at Bush when he's not the only one that this should be directed at. Had I been as sensitized to the issue back in Clinton's days as I am now and we had the same things taking place, I would have spoken up then too. Just because other presidents engaged in similar behavior (and I'm not saying they did) doesn't make it right, does it? The headline could be different. Imagine if Bush sought to restore the rights that may have been eroded by previous administrations. The point is, the administration that's in place now is the only administration we have and the only administration that can restore that which was previously eroded, maintain the status quo, or promote further erosion. So, it makes no sense to me that we should shut up on the basis that this is nothing new.

      • Deflections


        Matt Drudge, and other conservative bloggers, try to draw criticisms away from out current President by using the very same argument bpolhemus proposes.

        Alas, they miss an entire point: just because an action was done in the past, does not condone the same action in the present/future.
        • Except that...

          ...time and time again, the legislative AND judicial branches have concurred.

          If you disagree, write your Congressman. Your complaint will be in the minority, but at least you've done all you can do.
      • Clinton and Carter did this and it's a matter of public record

        I?m not making a judgment call on the Google search issue because it is totally unrelated to the phone and email tapping issue. But for the record, Clinton went as far as authorized a lot of physical searches without any court orders. Carter also authorized similar things and this has never been successfully challenged in the courts.

        The phone tapping under Bush isn't "domestic" because one end of the call is an Al Qaeda terrorist out side of the country. The special court that was suppose to approve these things were blocking an abnormally high number of Bush's requests for these taps and Bush bypassed them. The problem is that the media is playing this out like Bush is phone tapping of ordinary American citizens or the phone tapping of Martin Luther King, but it isn?t. Most Americans understand why you would tap Al Qaeda terrorists making calls to people in the States and all the polls show this. But again, this really isn?t related to the Google issue.
        • COPA and FICA

          >> Clinton went as far as authorized a lot of physical searches without any court orders. Carter also authorized similar things and this has never been successfully challenged in the courts.<<

          Again, the fact that they were not successfully challenged in the courtrooms does not justify Bush's actions today. COPA, which Clinton signed into being, was challenged by the Courts and an injunction was placed on the law until the gov't could come up with a valid way to protect out Amendment rights and the safety of our children at the same time. Bush is foolishly pursuing Clinton's course of action, and it will end in failure (hopefully).

          >>The problem is that the media is playing this out like Bush is phone tapping of ordinary American citizens or the phone tapping of Martin Luther King, but it isn?t.<<

          We can not know this because President Bush is not going through the proper channels to make sure of the wiretaps legality. No one but the NSA knows who is being tapped. This is why FICA was created in the first place: the Executive Branch proved they could not responsibly handle the power of Wiretapping without another branch of gov't supervising it.
          • FICA was engaging in politically activism

            ... and shooting down a very large number of requests from Bush to intercept domestic-to-foreign calls, much more than it ever did under previous administrations. FICA made it impossible to respond in a timely manner to terrorist threats.

            Both Clinton and Carter bypassed the courts. I just wanted to set the record straight. This will ultimately have to be decided in the Supreme Court.
          • Uh oh

            We're on the same side of an argument George, the world may explode. :-)
            Robert Crocker
          • Well you can't be wrong all the time :)

            Even a broken clock is right 2 times a day :)
          • Message has been deleted.

          • Re:

            And this simple fact shouldn't throw up any red flags?

            Who was he asking to wiretap? Why did the court, which has been known to be overly lenient, suddenly stop being so lenient? Why did a judge quit over it?

            These are all very relevant questions.

            Again, most people already know the faults of Clinton and Carter (Drudge made sure of that), and I will continue to press the fact that these failures are not as important as the ones we face today.
          • (NT) Double Post (NT)

          • Rejection by FISA Court is No Excuse

            The argument -- often heard -- that the FISA Court was rejecting too many of the Administration's requests for intercepts and this justified its bypass is completely specious.

            If the Administration was unable to convince a neutral arbitor (actually FISA is far more inclined to grant intelligence ops than a normal federal court would be) that its case for an intercept is valid, the problem is not with FISA. The problem is with the Administration's claim.

            If a grand jury keeps rejecting a prosecutor's requests for a criminal indictment, we do NOT bypass the grand jury.

            That balance, that requirement of an adequate showing by the government, is exactly the point. It is precisely the balance intended by the Constitution.
          • No such thing as "neutral"

            If you believe there is such a thing as "neutral" organization, I've got some beach front property to sell you in Nevada.

            All the cases that were rejected were in fact communications to terrorist nations. There is no excuse to block that kind of a request. The fact that Clinton and Carter did it IS important because it's precedence. The media makes it sound like Bush is doing something new when that just isn't true. The media also makes it sound like Bush is spying on ordinary American citizens when ordinary American citizens don't make phone calls to suspected terrorists abroad. The politicization of this issue is going to backfire because Americans are not stupid and they know what?s at stake.
          • FI*S*A

            FICA is the medicare portion of your social security tax.

            President Bush *IS* going through the proper channels for clandestine intelligence operations. The FISA court was informed, the heads of both parties of the House and Senate and the Intelligence Committees were also apraised of the program repeatedly.

            Finally, if you really want to get into the nitty gritty, the Justice Department has a rough draft collection of the legal justifications for the program here:
            Robert Crocker
          • FI*S*A

            I seem to have been littered with typos yesterday. Alas.


            I've read the "legal justifications" and I don't agree. Can you tell me we are in anymore danger than during WWII (the Japanese bombed the living tar out of us), the Cold War (Bay of Pigs, anyone), and other hectic times in our history? I can't. The Cold War wiretapping and paranoia is being repeated. The uselessness of knowing our own past... because we keep repeating the same mistakes over and over and over.

            The FISA court was informed, and didn't think them very relevant wiretaps. So Bush discarded them, and quit going through them altogether. This is a frightening precedent, and one not justified by the powers granted to him on September 14th.

            The head of both parties were informed, and then given a gag order. They could not discuss the information with legal support, nor with one another. The Heads have also been known to AGREE with Bush on pretty much everything - why does Bush never ask someone who might disagree. He lives in the same bubble kings in ancient past built up around themselves.
          • Terrible example

            Did you realize that BEFORE Japan attacked us bringing us into WW II we were already tapping ALL incoming communications? Both cable and mail were being looked at.

            You seem to have a lot of information about the program or are you just projecting based on some deliberate exagerrations that have been in opinion pieces?

            Risen's book says that at most 500 people in the US (not all citizens btw) were being tapped by this program.

            Also, go back to Ou's posts and you can see that Clinton claimed even broader powers of [b]physical searches[/b] here in the US without even the justification of the AUMF/an active conflict.

            There is an established process in the Legislative branch (in fact they created it) for dealing with suspected illegal actions in clandestine operations. Along with this process they made it clear that it is illegal to leak information like this beyond the proper authorities. Translation: there's no such thing as a legal leak and no "whistleblower" defense.
            Robert Crocker
          • More

            I could also argue that Senators specifically fought language President Bush had put into the powers that would have allowed freewheeling wiretaps. The language was removed, because it would have NEVER passed, and President Bush would have been woefully incapacitated to react to anything.

            History has proven again and again that Executive Powers can not responsibly wiretap American Citizens without supervision. We should not roll over because of a George Orwell inspired "constant war."
          • They're not wiretapping citizens

            For the final time this isn't a case of "domestic wiretaps" as much as the media wants it to be. How many domestic airplane flights have you taken that end in another country? Answer: none.

            The fact that one end of the conversation was occasionally in the US does not make it domestic.
            Robert Crocker
          • I thought using the past to justify the present was wrong?

            theillmunkeys said:

            "the Executive Branch proved they could not responsibly handle the power of Wiretapping without another branch of gov't supervising it."

            I assume you are referring to Nixon's abuse of executive powers? If so, or if you're referring to any other administration besides the current one to point out that the Executive Branch can't be trusted to hadnle the power of wiretapping responsibly, then you breaking your own rules of judgement.

            It's been stated multiple times that current actions can't be justified by past actions. Can a current judgement that the current Executive Branch can't handle the wiretapping responsibly simply because other's haven't? No...

            Is there any...again, I say *any* prooof that the current administration has done anything illegal?

            You can't have things both ways...either each adminstration is judged in isolation or not...