Tod Kelly

Tod is a writer from the Pacific Northwest. He is also serves as Executive Producer and host of both the 7 Deadly Sins Show at Portland's historic Mission Theatre and 7DS: Pants On Fire! at the White Eagle Hotel & Saloon. He is  a regular inactive for Marie Claire International and the Daily Beast, and is currently writing a book on the sudden rise of exorcisms in the United States. Follow him on Twitter.

Related Post Roulette

42 Responses

  1. Burt Likko says:

    You are wise to point out that there isn’t enough information to pass judgment yet. My first question: “Did they have a warrant?” Coming on the heels of an I.R.S. apparently being left out to dry about the Tea Party/Patriot thing, this really looks bad.

    This Administration has been every bit as bad as the last one about these sorts of issues.Report

    • j@m3z Aitch. in reply to Burt Likko says:

      Even if they had a warrant I’m dubious. The FISA Court’s often just a rubber stamp. Not that there couldn’t be a legitimate reason, but I don’t think our government’s earned itself more than a smidgeon of benefit of the doubt on these things.Report

    • Michael Drew in reply to Burt Likko says:

      What do you mean by IRS left out to dry?Report

      • Michael Drew in reply to Michael Drew says:

        This wasn’t a challenge to the characterization; I’m just curious what aspect or development in the story it was referring to.Report

        • I don’t see anyone stepping up and saying “I made the call to do this.” No one wants to get thrown under the bus and no one in the White House is volunteering to do it.Report

          • Michael Drew in reply to Burt Likko says:

            So in your view, by now, regardless of what actually did or didn’t happen, someone (perhaps at the White House, but in any case not in the IRS, since otherwise it’s hard to see how the IRS is being left out to dry as a result if it not happening – and failing it being anyone not at the White House, the White House ought to have stepped forward and done it by now – again, regardless of what did or didn’t happen) should have come out and announced that they instructed these employees (or the IRS more generally) to undertake this approach to selecting 501c(4) applications to give closer scrutiny?Report

          • Morat20 in reply to Burt Likko says:

            Um, didn’t the guy that was in charge of the IRS during the period in question end his term like a year ago?

            Maybe they should reappoint him — he was a Bush appointee, so maybe he can get through the Senate — and then he can resign in disgrace over it?Report

    • Nob Akimoto in reply to Burt Likko says:

      Burt, by law they don’t need a warrant.

      This is a Supreme Court issue. They said in Smith v. Maryland that accessing such records of pen registers didn’t amount to a search given reasonable privacy concerns.Report

  2. Will Truman says:

    I will personally withhold judgment. But will the press? This could hurt Obama far more than a single congressional investigation or somesuch. For the press that shapes the narrative of presidents (or tries to), this hits awfully close to home.Report

  3. Mad Rocket Scientist says:

    During the IRS discussion, Nob made a comment that maybe the trouble with the IRS was that it didn’t have enough resources to do it’s job right (which to me seemed a dig at us small-government types).

    I propose a slightly different problem: Our government has more than enough resources to do it’s job, it chooses, however, to spend such resources… unwisely.Report

  4. Rod Engelsman says:

    I don’t usually link to sources that others here would consider biased, but according to ThinkProgress, this all stems from an AP story about a successful intervention in a Al Qaeda plot in Yemen by the CIA. The “by the CIA” part is what is troubling the admin because the AP shouldn’t have been able to know that. The fear (reportedly) is that this puts the terrorist group on notice that they’ve been infiltrated by the CIA and possibly puts our human assets at risk.

    Apparently, they’re trying to run down the source of the leak and they hoped to do that by looking at the phone records (basically just phone numbers and dates in and out) between the time of the intervention and the story being published.

    League lawyers: Is it true, as alleged by one of the commenters on TP that the SC ruled that the admin doesn’t need to get a warrant to get phone records like that?

    What I’m seeing is a situation that’s at least plausibly justified by N.S. concerns and also falls within the scope of the law (assuming the S.C. made such a ruling). I’m also seeing something that looks bad (i.e., is spin-worthy) and that the r/w media is going to jump all up and own about, even though it fits into the general pattern of shit they loved when Bushy was doing it.Report

    • Subpoenaing records from ISPs or phone providers on their switchboard activities doesn’t actually require anything more than notification, rather than a full fledged warrant.

      Title III has allowed the government to subpoena phone records and communications records since it was first enacted.

      This isn’t exactly new, maybe what’s new is that it’s the first time something as big as AP has been targeted as part of the effort. From what I recall both the foreign intelligence surveillance act and Title III were designed to make this sort of “switchboard record keeping” easier to access from the government’s point of view.

      This was considered as part of the whole reasonable expectation of privacy angle, IIRC.

      It’s not new, and this sort of blanket application is troubling, but to describe it as a “J. Edgar Hoover step backwards” is hyperbole. We should look at whether or not Title III needs revision, as I think most of us nowadays expect our phone records and emails to be reasonably safe from that sort of intrusion.

      Of course on the headache front We also have things like:


        I happen to think Maryland v. Smith was wrongly decided, but there’s nothing particularly blatant or “beyond the pale” here.

        It’s easy for AP to gin up the outrage machine because it’s the press, but we need to be asking a more fundamental question about electronic record keeping in general.

        This is NOT a freedom of the press issue. This is an electronic surveillance one.Report

        • Burt Likko in reply to Nob Akimoto says:

          Now here, I disagree. I think freedom of the press is implicated. Perhaps not fatally so, but that’s the right that’s in play.

          Sounds like you’re looking at privacy, Nob. Which seems like it’s inevitably going to take you back to searches and seizures.Report

          • Michael Drew in reply to Burt Likko says:

            Has anyone else argued along these lines regarding this same kind of situation, Burt, where, if, say, another company of similar size had its phone records subpoenaed in this way, the argument stated that it would not have recourse to the same protection that a company like the AP, or the WSJ or NYT would, because they are covered by the First Amendment? Clearly, a kind of distinction like this has been argued for in the campaign finance area, but I’m wondering if it’s been argued fro other than by you in this area of surveillance.Report

          • Nob Akimoto in reply to Burt Likko says:

            Couple of things.

            1. The statutory restriction on the use of pen registers was substantially eased by the PATRIOT Act, to the degree that I think ECPA is effectively dead letter. (Especially as this case appears to be, the matter involves some sort of national security element)

            2. I find the distinction between press and not to be of dubious distinction, because more recently the media’s been one of the most active consumers of leaked or inappropriately obtained electronic records, whether we’re talking email transcripts or cell phone records.

            The problem is more fundamental, IMO. We simply don’t have good statutory language that defines what constitutes reasonable expectations of electronic privacy. In many respects the statutes and precedents involving electronic communications strike me as being extremely similar to Olmstead era constitutional interpretation of the privacy expectation regarding telephones.

            Given that some of the largest abuses of electronic communication data retrieval and retainment by private entities happens not on behest of government, but by non-governmental actors, I think we need to approach this from the angle of privacy and property concerns rather than as a press freedom issue.

            Because let’s say if I wanted to sue the AP for using leaked email correspondence between me and say Burt Likko, they’re going to start screaming that it’s their right to publish it and the state of libel laws in the US would make it very hard for me to defend myself against damning and selective publication of say emails stored on a server.Report

  5. zic says:

    I know when I was reporting during the Bush Admin., once I started talking to folk outside the US, I was told to expect my calls to be recorded. I filed a FOIA on it in 2004; never got a response. Since that time, ISP/phone companies have been required to build ‘back doors’ into their systems under CALEA, the Communications assistance for Law Enforcement Act and the Patriot Act.

    The expectation that we have privacy there is a joke; and that intrusion into our privacy now includes internet usage. The expectation that members of the press, who presumably speak to people the government also has an interest in for security reasons, should have some level of privacy in the face of these laws seems silly. If anything, I’d expect reporters to have their phones tapped, particularly if they’re reporting on international hot spots or anything to do with US military.

    My only comfort here is the needle-in-a-haystack search; in the name of security, we’re scooping up so much data that finding anything useful is actually difficult. But that’s rather cold comfort.

    This should bother everyone; you should call you’re Senators, your Representatives.Report

    • Chris in reply to zic says:

      This is definitely a pretty big freedom of the press issue. Now, the number of the source who leaked the classified information might be in those phone records, but so might the numbers of other confidential sources who didn’t do anything illegal, but whose status as a confidential informer could cause them other sorts of problems (with their work, for example, particularly if they work for the government). Are we supposed to trust the Justice Department not to do anything with information about calls from people who may be sources but clearly aren’t the sources involved in the particular link they’re investigating at the moment? If you were a confidential source, especially one who works for the government, would you trust them to do so? If you were a potential confidential source, would you think twice about being one knowing that the government may just take information that could reveal your identity?Report

  6. Mike Schilling says:

    The linked piece contains a bit more info:

    The government would not say why it sought the records. U.S. officials have previously said in public testimony that the U.S. attorney in Washington is conducting a criminal investigation into who may have leaked information contained in a May 7, 2012, AP story about a foiled terror plot. The story disclosed details of a CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.

    I’m not saying this necessarily justifies the DOJ’s actions. But if they were related to this leak, and if the DOJ actually got a FISA warrant, it puts things within the rule of law.

    (J@#3& is right about the FISA court, which made it so ridiculous when Bush wouldn’t even agree to go through them for wiretap authorization.)Report

  7. Nob Akimoto says:

    I’ll be writing up a more proper post on the subject when I can find my notes from Comparative Individual Protections and Constitutional Law

    Pen registry records like this one is one of those places where the US is relatively at odds with the rest of the world.Report

    • J@m3z Aitch in reply to Nob Akimoto says:

      Looking forward to it. It’s not an area I covered.Report

      • This was one of the things that got me interested in the whole lawfare process. My professor at the time was extremely well read on comparative law issues among common law jurisdictions. I remember showing the syllabi and reading lists to Bobby Chesney and being told some kind things about my old professor.

        That said, I haven’t dealt with these issues in a while as surveillance became less important than say bombing people in foreign countries over the last 5 years or so.Report

  8. Shazbot5 says:

    I thought this was only legal when it was done to Muslims.Report

  9. Nob Akimoto says:

    PS if there’s sufficient interest, I’d be happy to get into the weeds of electronic surveillance law in general.

    Let me know if the subject is of interest.Report