Fiberoptics and the Ace of Spades

As I write this, I have three different referrers running on this blog, each of which gives me a different number of how many hits I'm getting. It's truly bizarre. Sitemeter, for example, counts both Postcards of the Hanging and the old Enjoy Every Sandwich blogspot place, and it shows me getting considerably fewer hits than Statcounter and Blogger's built-in monetizing counter, both of which just look at traffic coming here. In any event, I get anywhere from 300-500 people a day here, and probably closer to five hundred, since Sitemeter's numbers make no sense whatsoever. And that makes me one of the least read writers in all of Christendom.

I only bring that up because the mysterious Ace of Spades is among the most read, certainly among primarily political bloggers. When I first started blogging in 2003, Ace was one of the templates that I worked from in forging my identity. Of course, that didn't work out because he's smarter and funnier than I am, and the thought of having half a dozen co-bloggers cluttering everything makes me insane. He's also heavily partisan and I'm not. But he's a very, very good read and sometimes comes up with some truly genius stuff.

That's why this post jumped out at me, if only because it proves a theory I wrote about in some detail five years ago.

Long story short, Ace is mystified by a 1986 law that allows the government to peek at e-mails that are more than 180 days old and stored on an external server, which is to say nearly all of them, without a warrant. To get at newer e-mails, or anything off of your hard drive, law enforcement would still need a judge to okay it. Ace is further outraged that the Obama administration is imploring Congress to leave it that way.

That ignores one very important fact: that the Electronic Communications Privacy Act is pretty much obsolete. It was effectively gutted, along with the Foreign Intelligence Surveillance Act, by the National Security Agency's warrantless surveillance program which was ordered by President Bush.

In the days after 9/11, Americans - and Republicans in particular - were howling to give the government the power to do pretty much whatever it wanted, so long as the word "terrorism" was included somewhere in the sentence. Everything was a secondary consideration to monitoring and stopping al Qaeda.

The only problem is that these things have a tendency of not staying limited to terrorism. The PATRIOT Act has allowed for thousands, maybe even millions, of searches without warrants, the vast majority of which have nothing at all to with al Qaeda, or even terror generally. It is now a regular tool of everyday law enforcement, and one that isn't going to be given up anytime soon.

If you read James Bamford's The Shadow Factory: The NSA from 9/11 to the Eavesdropping on America you quickly come to understand that the NSA program was even more insidious. You see, the NSC has to go through all incoming fiberoptic traffic to find anything specific relating to foreign intelligence. So in the months after 9/11, they installed "taps" on the fiberoptic trunk stations as they enter the United States in Northern California, Florida and New Jersey.

Here's where this gets tricky. Let's say that you're a housewife in Idaho and you call the housefrau next door on your cell phone. That signal doesn't go directly from your phone to hers. It actually relays throughout the fiberoptic network, leaving and then re-entering the United States before it gets to your neighbour's phone. The same is true of your e-mails and any instant messaging you do. Therefore, almost all communications in the U.S - including those involving only American citizens - are necessarily being intercepted by the NSA.

Remember, President Bush did this entirely in secret, relying only on his Article Two "Commander-in-Chief" powers. The fact that it directly violated FISA, NSA's charter - both of which were acts of Congress - and the Fourth Amendment wasn't given a second thought. In fact, when the program was exposed by The New York Times in late 2005, Republicans like Ace were enraged ... that the program was exposed by The New York Times.

I wrote about the program fairly extensively and critically at the time at Enjoy Every Sandwich, and my more partisan commenters went nuts defending the whole exercise. I was told, by people whose entire political philosophies revolved around distrust of the government, that the government would never misuse the technology or the data. At the time, the extent of the non-terror related PATRIOT Act searches remained unknown, but it was known that the law was being applied to tax and organized crime cases, even then.

One of my constant refrains at the time was that Republicans will be fine with this power so long as it's a Republican president wielding it. But when they're stuck with a President Hillary Clinton (as seemed likely at the time), their tune will change in a hurry and they'll find their inner civil libertarian right quick. And that appears to have happened.

But if it's any consolation to my Republican friends who are worried about the government getting at your old cloud data without a warrant, don't be. The federal government can snoop into what you're doing right now without one. And you spent month after month arguing that they should be able to.

Feel better?