Supreme Court Agrees To Take Petition Asking Whether Eighth Amendment Protections Apply To Asset Forfeiture

from the chance-to-reshape-forfeiture-programs-from-the-bench dept

The Supreme Court has agreed to take a case that may alter how states run their asset forfeiture programs. As it stands now, there's nothing unifying forfeiture policies across the nation and, under Jeff Sessions, the DOJ has reopened the federal forfeiture pressure valve, allowing state agencies to bypass recently-passed reforms.

But there's still something at the federal level that possibly affects state-level forfeitures. The question for the Supreme Court is whether or not a Constitutional protection overrides state laws. The case centers on the seizure of an Indiana resident's Land Rover after a drug bust. Tyson Timbs had purchased the $42,000 vehicle with funds from his father's life insurance. So, the vehicle was legally obtained with funds not even remotely linked to Timbs' drug dealing.

The state took it because Timbs used it to transport drugs on one of the controlled buys cops performed. It processed it as a civil asset forfeiture (rather than a criminal asset forfeiture) to get around the fact the fines and sentence didn't justify the criminal seizure of a $42,000 vehicle. A drug sale of $225 netted Timbs a year of house arrest and $1200 in legal fees. Then the state decided to take his car because why not.

That's what Timbs is challenging. The Eighth Amendment contains an Excessive Fines Clause. Timbs is hoping to have the court find the seizure of a $42,000 vehicle over $225 worth of drugs a violation of the Eighth Amendment. Considering the state levies a maximum $10,000 fine for the offense Timbs was charged with, a $40,000 seizure would appear to be excessive. But Timbs only batted .500 in Indiana courts.

[T]he trial court ruled against the government. Because taking Tyson’s car would be “grossly disproportional” to his offense—for which Tyson had already been punished—the trial court held that the forfeiture would violate the Excessive Fines Clause of the Eighth Amendment. The Indiana Court of Appeals agreed. Tyson suffered from drug addiction, the court noted, but his only record of dealing was selling a small amount of drugs to undercover police. The court also noted the “financial burdens” that Tyson had already faced when he pleaded guilty. Taking his car on top of all that would violate the Eighth Amendment.

Then the Indiana Supreme Court stepped in. Breaking with at least 14 other state high courts, the Indiana Supreme Court ruled that the Eighth Amendment provides no protection at all against fines and forfeitures imposed by the states. Until the U.S. Supreme Court intervenes, the Indiana Supreme Court said, “We will not impose federal obligations on the State that the federal government itself has not mandated.”

As Timbs notes in his Supreme Court brief [PDF], the court needs to take action to resolve splits not only at the federal level, but across the many state courts. There's no unified judicial theory of Eighth Amendment protections against civil asset forfeiture and this is only allowing states where forfeiture abuse is prevalent to become more abusive. The DOJ's escape hatch certainly isn't helping. A decision in Timbs' favor won't be a drastic alteration but it will provide another avenue of attack for those seeking to challenge forfeitures.

It may also force law enforcement agencies to do what they say they do, rather than what they actually do. They claim forfeiture is an essential tool for crippling huge criminal organizations and drug cartels. In reality, it's usually just a convenient way for agencies to enrich themselves at the expense of low-level dealers like Timbs and, worse, people who are never criminally charged.

Filed Under: 8th amendment, asset forfeiture, civil asset forfeiture, doj, indiana, legality, supreme court, tyson timbs

UK Local Government Confirms Surprising EU Position That Viewing Pirated Streams Probably Isn't Illegal

from the but-a-key-court-ruling-may-change-that-soon dept

A couple of years ago, the MPAA was freaking out about a piece of free software called Popcorn Time. Even though it was hugely popular as a result of its ease of use -- and access to large numbers of infringing copies of films -- it had a serious weakness. Since Popcorn Time was basically a BitTorrent client with an integrated media player, it was often possible to track down people who were using it. That fact, and the increasingly heavy-handed legal action taken against some sites that only had a vague connection with the Popcorn Time software, led to people moving on to more discreet alternatives that are based on direct streaming. One of the most popular today is Kodi, which describes itself as a "software media center for playing videos, music, pictures, games, and more." Like Popcorn time, it is also open source, but it does not include a BitTorrent client. Instead, as its website says:

you should provide your own content from a local or remote storage location, DVD, Blu-Ray or any other media carrier that you own. Additionally Kodi allows you to install third-party plugins that may provide access to content that is freely available on the official content provider website. The watching or listening of illegal or pirated content which would otherwise need to be paid for is not endorsed or approved by Team Kodi.

That distinction between the main code and third-party plugins has meant that it is generally accepted that Kodi itself is perfectly legal. The problem arises when third-party plugins are added that allow users to stream pirated content, typically through what are called "fully-loaded" boxes, which are sold very cheaply -- one benefit of using open source. There are two issues here: is it legal to sell these "fully-loaded" boxes, and is it legal to use them?

The UK authorities clearly think that selling these boxes is illegal: recently, five people were arrested for doing so. On the second question -- is it legal to use these boxes? -- an interesting article published in The Derby Telegraph quotes a spokesperson for the UK local government department known as Trading Standards as saying:

Accessing premium paid-for content without a subscription is considered by the industry as unlawful access, although streaming something online, rather than downloading a file, is likely to be exempt from copyright laws.

That might seem a surprising position for an enforcement department to take, but support for it comes from an unusual quarter, as TorrentFreak noted in an article last year:

the European Commission doesn’t believe that consumers who watch pirate streams are infringing. From the user’s perspective they equate streaming to watching, which is legitimate.

The European Commission gave its view during the hearing of an important case currently before Europe's highest court involving the Dutch anti-piracy group BREIN, which wrote in its summary of the hearing:

The case concerns the sale of a mediaplayer on which the trader has loaded add-ons that link to evidently illegal websites that link to content. For a user such a player is 'plug & play'. This king of pre-programmed player usually are offered with slogans like 'never pay again for the newest films and series' and 'completely legal, downloading from illegal sources is prohibited but streaming is allowed'. In summary the pre-judicial questions concern whether the seller of such a mediaplayer infringes copyright and whether streaming from an illegal source is legitimate use.

The judgment from the Court of Justice of the European Union is expected soon, and will lay down whether the sale and use of "fully-loaded" boxes is legal across the EU. Meanwhile, in the UK, a consultation has just been launched on the subject, whose title -- "Illicit IPTV Streaming Devices" (pdf) -- suggests the government there has already made up its mind on the matter.

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Filed Under: copyright, kodi, legality, streaming, uk

Tired Of Losing Legal Challenges To Its Surveillance, UK Government Secretly Changes Law So It Can Win

from the that's-cheating dept

Against all the odds, legal challenges to UK surveillance are succeeding, as Techdirt has reported. At the forefront of bringing cases against GCHQ is the rights group Privacy International. In May 2014 it asserted that GCHQ's activities were illegal under the UK's Computer Misuse Act (CMA), which criminalizes breaking into digital systems. A year later, and just hours before the Investigatory Powers Tribunal hearing of Privacy International's complaint against GCHQ, the UK government revealed the following:

only a few weeks after the claim was filed, the [UK] Government quietly introduced legislation on 6 June 2014 that would amend the CMA to provide a new exception for law enforcement and GCHQ to hack without criminal liability. The change not only affects Privacy International's claim, but also grants UK law enforcement new leeway to potentially conduct cyber attacks within the UK.

That is, the UK government was implicitly admitting that GCHQ's activities were, once again, illegal, but fixed that problem with the simple expedient of changing the law to make them legal. That on its own is questionable, although some might say that spies and the police need to have immunity when carrying out certain authorized acts. But the real issue here is another: the fact that this change was pushed through with none of the usual scrutiny or debate accorded to laws with important effects. As Privacy International explains, although the UK government published an explanatory note about the proposed amendment, it neglected to mention its true impact. Moreover:

It appears no regulators, commissioners responsible for overseeing the intelligence agencies, the Information Commissioner's Office, industry, NGOs or the public were notified or consulted about the proposed legislative changes. There was no published Privacy Impact Assessment. Only the Ministry of Justice, Crown Prosecution Service, Scotland Office, Northern Ireland Office, GCHQ, Police and National Crime Agency were consulted as stakeholders. There was no public debate.

This is essentially secret law-making, where the only people consulted are the ones who will benefit. That's troubling at the best of times, but especially so in the context of a government abusing its powers to avoid yet another embarrassing defeat in the courts.

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Filed Under: gchq, legality, nsa, privacy, secret law, spying, surveillance, uk
Companies: privacy international

Spy(ware) Vs. Spy(ware): Indictments For One Creator, Law Enforcement Plaudits For The Other

from the it's-like-they-don't-even-hear-the-words-coming-out-of-their-mouths dept

Compare and contrast:

Product A

Alerts for terms used in Chat or Texting.
Access to videos as well as web, camera and cell phone images loaded on device.
Review & delete images.
Email, Print or Save results.
View Internet History Log.
Keystroke logging.

Product B

View sent/received text messages.
Access chatlogs.
Look at photos, videos, music stored on device.
View visited sites and bookmarks.
Alerts for suspicious words.

One of these products is handed out by law enforcement agencies. One just had its creator arrested after an FBI investigation.

Product A is ComputerCOP, a deeply-flawed set of tools that allows parents to spy on their children's computer activities, provided they don't mind getting hundreds of false positives returned during searches or having passwords stored as plaintext by the built-in keylogger.

Product B is StealthGenie, a piece of software aimed at giving the inherently suspicious (or routinely cuckolded) person surreptitious access to everything on their significant other's phone. The full set of features included are astounding, including location info, email access, eavesdropping via the built-in mic and the perverse ability to lock or wipe someone else's phone.

It's not that the FBI was wrong to shut down the sale of this software, even if it does sound like the sort of thing the agency wishes it could deploy rather than terminate. It's that the law enforcement-approved tool set overlaps so heavily with something aimed at tearing the digital roof off someone else's life.

ComputerCOP -- unlike the more (necessarily) targeted StealthGenie -- doesn't ultimately care who's using the device it's installed on. You may just want to track your kids' internet activity, but anyone who uses it while it's activated will have their web history -- along with any keystrokes entered -- automatically logged. If anything, ComputerCOP is a cheap, legal alternative to StealthGenie, even if it's strictly limited to personal computers.

But one of these is being handed out by law enforcement agencies without any oversight (and with loads of misinformation). The other was the subject of a federal investigation. There's a certain amount of disconnection here, similar to law enforcement's use of encryption to protect themselves from criminals but wanting to deny the public the same option.

Just replace "StealthGenie" with "ComputerCOP" in these statements from the FBI's press release and see if it ultimately makes any difference. [h/t to Techdirt reader Will Klein]

"Selling spyware is not just reprehensible, it's a crime," said Assistant U.S. Attorney General Leslie R. Caldwell. "Apps like StealthGenie are expressly designed for use by stalkers and domestic abusers who want to know every detail of a victim's personal life -- all without the victim's knowledge."

“StealthGenie has little use beyond invading a victim’s privacy” said U.S. Attorney Boente. “Advertising and selling spyware technology is a criminal offense, and such conduct will be aggressively pursued by this office and our law enforcement partners.”

“This application allegedly equips potential stalkers and criminals with a means to invade an individual’s confidential communications,” said FBI Assistant Director in Charge McCabe. “They do this not by breaking into their homes or offices, but by physically installing spyware on unwitting victims’ phones and illegally tracking an individual’s every move. As technology continues to evolve, the FBI will investigate and bring to justice those who use illegal means to monitor and track individuals without their knowledge.”

Spyware is spyware, whether it's sporting a uniform and a badge or an orange jumpsuit and handcuffs.

Filed Under: computercop, doj, fbi, key logger, law enforcement, legality, privacy, spyware, stealthgenie
Companies: computercop, stealthgenie

There's A Reasonable Debate To Be Had About Showing The James Foley Beheading Video, But Claiming Its Illegal To Watch Is Ridiculous

from the name-the-law dept

By now you've probably heard of the barbaric and tragic beheading of journalist James Foley by the extremist group ISIS. There's an ongoing debate happening as many people sought to have the video (and screenshots) removed from the internet. Twitter and YouTube are actively removing such things, and even shutting down some accounts of people who are sharing those links. Mathew Ingram has a fantastic discussion about whether or not it's the right thing for these companies to be removing those images and videos, and our own Tim Geigner has been weighing whether or not to write about the subject.

However, I wanted to do a quick post about this ridiculous claim from the Metropolitan police in London that it's a criminal act merely to view the video. I have no interest in seeing the video, but I think it's crazy that someone deciding they do want to see the video might face criminal charges over it.

The MPS Counter Terrorism Command (SO15) is investigating the contents of the video that was posted online in relation to the alleged murder of James Foley. We would like to remind the public that viewing, downloading or disseminating extremist material within the UK may constitute an offence under Terrorism legislation.

However, when reporters from Buzzfeed asked the UK government to elaborate, no one will say what law would actually be broken:

The Metropolitan police are unable to currently name the law that citizens could be arrested under for watching the video that depicts the beheading of photojournalist James Wright Foley, despite earlier releasing a statement that said any British nationals watching the video could be committing a criminal offence.

They did get a police spokesperson to say that they're not intending to pursue people for merely watching the video, but that "viewing it could be used as evidence as part of a wider investigation." That seems fairly questionable in many ways, even as we're used to UK officials stretching anti-terrorism laws in dangerous ways.

Filed Under: beheading, debate, isis, james foley, legality, metropolitan police, uk

Under Swiss Copyright Reform, Private Sharing And Downloads From Unauthorized Sources Would Still Be Legal

from the truly-remarkable dept

Two years ago, Techdirt noted the price that Switzerland paid for daring to suggest that unauthorized file-sharing really wasn't such a problem: it was put on the USTR naughty step, aka the "Special 301 list." A post on Intellectual Property Watch explains the current copyright situation in Switzerland:

Anybody can download a movie or a soundtrack and share it with his family in the realm of the private sphere. The downloaded movie or soundtrack cannot, however, be made public on the internet -- for example through a social media platform -- or transmitted to third persons, the [Swiss] official said.

Switzerland is in the process of revising its copyright laws, and you might expect that by now it has been "persuaded" by the US to change its mind about allowing people to download files freely and share them in this way, but to its credit, that doesn't seem to be the case (pdf). Here's what the official Swiss working group carrying out the review of copyright, known as AGUR12, is recommending:

In view of the measures proposed below... downloading from illegal sources, as provided for in current law according to the prevailing doctrine, should remain legal.

The proposed measures mentioned there concern new responsibilities for ISPs, designed to help remove unauthorized online content. These include "takedown":

Hosting providers should remove content that has been illegally uploaded when notified to do so by the rights holder or a competent authority.

"Staydown":

Hosting providers, whose business model is clearly designed for the infringement of copyright by users, or who intentionally promote running the risk of performing illegal acts through measures or omissions for which they are responsible, need to remove illegally uploaded content when notified to do so by the rights holder and take all reasonable measures to prevent any further illegal uploading of such content.

And blocking:

On the order of the authorities, access providers located in Switzerland need, in serious cases, to block access to web portals that feature obvious illegal sources by means of IP and DNS blocking. The blocking of approved content along with unapproved content (overblocking) is to be avoided, as far as possible, by the competent authorities. All blocking measures are to be made publicly known in an appropriate form by the competent authorities and they may not compromise the technical functionality of the IP or DNS system.

AGUR12 also proposes introducing a new warning system for users, which concerns sharing materials on P2P networks:

An overzealous enforcement of the law is problematic and is perceived as being aggressive because internet users are often unclear about the legal situation. Prior notification may remedy this. It is therefore important to create the possibility for access providers to issue a one-off notification, when notified by the rights holder or a competent authority, to owners of internet connections who seriously infringe copyright by using peer-to-peer networks. Rights owners should adequately compensate access providers for the costs incurred for delivering such notification. Upon receipt of the notification, the subscriber will then have to take appropriate steps to prevent continued use of his connection for copyright infringement via peer-to-peer networks in order to avoid facing joint civil liability in the event of recurrence. To this end, the necessary legal basis is to be established and a guarantee of judicial review is to be observed; in particular, ISPs and consumer organisations must have the possibility of appealing to the competent authority upon notification from a rights holder.

As these excerpts of the recommended changes indicate, while revising their laws for the digital age, the Swiss seem to be keen to maintain their refreshingly moderate and rational approach to copyright. Which doubtless means that we can expect to see the country placed on the Special 301 list for some years to come.

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Filed Under: copyright, copyright reform, downloading, intermediary liability, isps, legality, special 301, switzerland

Victims Of GCHQ's Denial Of Service Attacks Start Asking Who Are The Real Criminals?

from the doesn't-seem-right dept

Earlier today, we wrote about the latest Snowden docs, in which it was revealed that the UK spy agency, GCHQ, was engaged in DDoS attacks on people participating in Anonymous chats and other events, while also helping to identify certain participants, leading to their eventual arrests and convictions. Basically, it looks like GCHQ was engaged in widespread DDoSing, while at the same time helping to convict some kids for doing their own DDoSing. We've already questioned whether or not GCHQ is even supposed to be doing that to UK citizens (they're supposed to be focused on foreign targets), but some of those convicted are already questioning how it's right that they were convicted of the same thing that the GCHQ itself was doing to them.

Chris Weatherhead was sentenced to 18 months in prison for participating in a DDoS against Paypal, Mastercard and Visa (one of the first big Anonymous DDoS attacks, in response to those 3 companies cutting off payments to Wikileaks). Now he's pointing out that GCHQ was DDoSing his own servers, and he wonders how that's right:

My Government used a DDoS attack against servers I owned, and then convicted me of conducted DDoS attacks. Seriously what the fucking fuck?

— Chris Weatherhead (@CJFWeatherhead) February 5, 2014

Meanwhile, another Anonymous participant, Jake Davis, who was arrested and banned from the internet seems equally angry about things for pretty good reasons:

I plead guilty to two counts of DDoS conspiracy and to my face these GCHQ bastards were doing the exact same thing - http://t.co/Y4vo1qeN4I

— Jake Davis (@DoubleJake) February 5, 2014

Davis has also written a long piece concerning all this that is absolutely worth reading, asking a simple question: who are the real criminals here?

Why do British government spooks so brazenly attempt to inhibit the activities of acephalous online collectives and not, say, the hate-filled Westboro Baptist Church, or chat networks that encourage racism or paedophilia?

Or maybe the more important question: how can they even be permitted to launch these attacks at all? There's no justification for how nonchalant a democratic government can be when they breach the very computer misuse rules they strongly pushed to set in place.

When we look at what Western governments are doing - snooping on our emails, infecting our computers, intercepting our phone communications, following our avatars around in online games, backdooring our public encryption, discrediting our Internet viewing habits, encouraging illicit activity and even engaging in their own illicit activity - we have to ask ourselves: who are the real criminals here?

Others have similarly wondered if GCHQ is going to have to face charges over this, given that these actions appear to be entirely outside of its mandate and mission, and seem more compelled by just general dislike of some kids messing around.

Filed Under: anonymous, chris weatherhead, ddos, gchq, jake davis, legality, uk

Legal Analysis Requested By Members Of Parliament Says GCHQ Surveillance Is Illegal Too

from the well,-look-at-that... dept

We've seen a few times now how legal analysis suggests that the NSA's surveillance activities are clearly illegal. However, over in the UK, the government has appeared to be even more protective of the surveillance by GCHQ, and even more insistent that the activities have been legal. While there's a thriving debate going on in the US, many UK officials seem to have pushed back on even the possibility of a similar debate -- and there has been little suggestion of reform. While it's still unclear how much reform there will be of the NSA, the UK government hasn't indicated even an openness to the idea.

But now, similar to the recent PCLOB report in the US, a legal analysis of the GCHQ, written at the request of a bunch of Members of Parliament, has argued that much of what GCHQ is doing is illegal under UK law:

In a 32-page opinion, the leading public law barrister Jemima Stratford QC raises a series of concerns about the legality and proportionality of GCHQ's work, and the lack of safeguards for protecting privacy.

It makes clear the Regulation of Investigatory Powers Act 2000 (Ripa), the British law used to sanction much of GCHQ's activity, has been left behind by advances in technology. The advice warns:

• Ripa does not allow mass interception of contents of communications between two people in the UK, even if messages are routed via a transatlantic cable.
• The interception of bulk metadata – such as phone numbers and email addresses – is a "disproportionate interference" with Article 8 of the ECHR.
• The current framework for the retention, use and destruction of metadata is inadequate and likely to be unlawful.
• If the government knows it is transferring data that may be used for drone strikes against non-combatants in countries such as Yemen and Pakistan, that is probably unlawful.
• The power given to ministers to sanction GCHQ's interception of messages abroad "is very probably unlawful".

There's a lot more in the report, described at that Guardian link above, which is well worth reading. It makes you wonder how much longer the UK government can pretend that everything is perfectly fine with the GCHQ's activities.

Filed Under: gchq, legality, parliament, privacy, surveillance, uk

UK Spies Knew That Its Surveillance Was Likely Illegal, Which Is Why They Fought To Keep It So Secret

from the but-of-course dept

The latest reporting on the Snowden docs by The Guardian shows that the UK's surveillance operation GCHQ was apparently well aware that its activities were almost certainly open to a "legal challenge" and therefore they were committed to keeping them secret to avoid such a challenge. Note that this is quite different than the official excuse always given about being worried about public disclosure putting national security at risk by revealing "sources and methods." Instead, here it seems clear that the secrecy was for the very reason that many of us suspected: they were pretty sure they're breaking the law, or at least coming so close that it was something the courts would eventually have to decide... but only if the info got out. And, it wasn't just them. They realized that the telcos willingness in passing on info likely opened up other legal challenges as well.

GCHQ lobbied furiously to keep secret the fact that telecoms firms had gone "well beyond" what they were legally required to do to help intelligence agencies' mass interception of communications, both in the UK and overseas.

GCHQ feared a legal challenge under the right to privacy in the Human Rights Act if evidence of its surveillance methods became admissible in court.

GCHQ assisted the Home Office in lining up sympathetic people to help with "press handling", including the Liberal Democrat peer and former intelligence services commissioner Lord Carlile, who this week criticised the Guardian for its coverage of mass surveillance by GCHQ and America's National Security Agency.

Amazingly, they seem to admit that the fear of a public debate/legal challenge was the key reason they fought (and won) a battle to keep such evidence out of trials. That is, even though they could have gone with the old favorite of "national security," instead, they finally admitted reality:

Our main concern is that references to agency practices (ie the scale of interception and deletion) could lead to damaging public debate which might lead to legal challenges against the current regime.

That other point mentioned above, about telcos going "above and beyond" in voluntarily handing over access is also pretty big, considering that the telcos in question had tried the "we're just complying with the law" excuse in the past. But, evidently, they were lying.

The revelations of voluntary co-operation with some telecoms companies appear to contrast markedly with statements made by large telecoms firms in the wake of the first Tempora stories. They stressed that they were simply complying with the law of the countries in which they operated.

In reality, numerous telecoms companies were doing much more than that, as disclosed in a secret document prepared in 2009 by a joint working group of GCHQ, MI5 and MI6.

Later in the report, a GCHQ memo notes that telcos "feared damage to their brands" if the extent of their over-cooperation was revealed. You know how they could have dealt with that? By not going so far above and beyond the law. But, once again, it seems like the telcos have been incredibly willing to screw over their own customers' privacy at every opportunity.

Filed Under: gchq, legality, public debate, surveillance, telcos, uk

Every Time The NSA Is Asked About Its Ability To Spy On Everyone... It Answers About Its Authority

from the nsa-beats-terrorism-by-forbidding-unauthorized-terrorist-activity! dept

One of the more surprising/awful aspects of the NSA leaks is just how much of what it does is perfectly legal. As we've discussed before, the NSA (and other agencies) have basically explored the outer limits of any laws pertaining to domestic and foreign surveillance, and once they've hit those walls, they've been granted exceptions, expansions and secret interpretations that permit broad, non-targeted surveillance programs to remain strictly legal.

NSA reps currently on the receiving end of hearings and committee inquiries have repeatedly stressed this point: it's all completely legal and subject to oversight. Glossed over is the fact that the legality can rarely be challenged because the spied-upon are rarely granted standing. Also routinely glossed over is the fact that Congress has been lied to repeatedly about the details and extent of these programs.

Slate's Ryan Gallagher has a post taking Michael Hayden, former director of the NSA and CIA, to task for statements he made supporting X-KEYSCORE shortly after the Guardian released the leaked documents.

Following the disclosures, Hayden appeared on CNN to discuss the agency’s surveillance programs. The general, who directed the NSA from 1999 through 2005, was remarkably candid in his responses to Erin Burnett’s questions about the Guardian’s XKEYSCORE report. Was there any truth to claims that the NSA is sifting through millions of browsing histories and able to collect virtually everything users do on the Internet? “Yeah,” Hayden said. “And it's really good news.”

Not only that, Hayden went further. He revealed that the XKEYSCORE was “a tool that's been developed over the years, and lord knows we were trying to develop similar tools when I was at the National Security Agency.” The XKEYSCORE system, Hayden said, allows analysts to enter a “straight-forward question” into a computer and sift through the “oceans of data” that have been collected as part of foreign intelligence gathering efforts.

Hayden's enthusiasm for expanded haystack construction notwithstanding, there's more to this interview than just the former boss applauding the work of his successors. The interview, conducted by Erin Burnett of CNN, presses a question NSA supporters like Hayden (and Gen. Alexander) have been dodging since day one. Namely: does the NSA have the ability to spy on Americans' phone calls, emails and internet usage in real time?

The interview runs just over 8 minutes, but by the end of it you'll be sick of a couple of phrases Hayden repeats ad absurdum -- "lawfully collected" and "authority."

Before getting to the X-KEYSCORE questions, Burnett runs a clip of Gen. Alexander being lobbed softballs by Sen. Mike Rogers back on June 18th. Note Alexander's verbal head fake that makes it appear he has actually answered what was asked.

Rogers: Does the NSA have the ability to listen to American's phone calls and read their emails?

Alexander: No. We do not have that authority.

That wasn't what was asked. Without a doubt, the agency does not have the authority to perform these acts. But what was asked was if the agency had the ability, whether or not it was being utilized.

When Burnett presses Hayden on this point, he provides the same dodge. She asks if the NSA has the ability to collect this kind of data and Hayden responds by saying the NSA can utilize this data, but only after it's been lawfully collected.

When she pushes further, asking what's stopping the NSA from "collecting whatever the heck you want on whoever the heck you want," Hayden goes right back to claiming NSA analysts are only authorized to query the data that's been already lawfully collected. The question about ability continues to be danced around.

Hayden even reiterates Alexander's pseudo-answer:

"General Alexander made it clear: we don't have the authorization to do that."

Then he goes further, claiming that an order to view real-time data would be rejected by the analyst, simply because the request is unlawful. Hayden cannot possibly believe this statement is true. Sure, some analysts might reject legally-dubious requests from superiors but there is no way this is true across the board.

Hayden's continual reference to "lawfully collected" and "authorization" (along with the usual mentions of "oversight" and "checks and balances") is nothing short of ridiculous. It's as if he wants everyone to believe that because analysts aren't "authorized" to perform certain actions, they simply won't perform them. In Hayden's bizarrely credulous narrative, laws prevent lawbreaking.

Over and over again, he stresses the point that the data has been "lawfully collected" and that the NSA is only "authorized" to perform certain actions with the collected data. His ultra-simplistic responses are almost laughable. Of course an analyst wouldn't perform real-time data monitoring! It's not permitted!

If Hayden's narrative holds true, then we need to be asking ourselves why criminal activity of any kind occurs. After all, the laws are in place and people who know what's illegal and what isn't simply won't perform illegal activities. The alternative is to assume Hayden believes intelligence agency employees are sinless wonders above reproach, who have never abused their position or power. But nothing about the agency's past bears that out.

NSA officials have repeatedly lied to Congress. Rather than simply claim something is classified or can't be discussed publicly, they dance around straightforward questions, offering up "least untruthful" answers.

NSA analysts have abused their power. Multiple times. The agency has illegally spied on journalists, broken wiretapping laws, viewed President Clinton's emails and recorded calls from American soldiers back to America, passing around tapes of ones containing "phone sex" or "pillow talk." That's just a few instances that we KNOW about. To pretend the abuse is limited to the events revealed by whistleblowers is the height of condescension. To make the assertion that NSA analysts will only act within the limits of laws (not that much is limited) is downright insulting.

Sure, Hayden may be projecting an idealized version of the agency solely for the purpose of answering these questions, but the continual dodging of the "ability" query simply raises more questions. Nothing about this Q&A inspires trust, considering it relies on meaningless terms like "lawful," "oversight" and "collected," the latter term seemingly completely resistant to definition.

Hayden's mantra of "We don't because we're not authorized" veers into self-parody by the end of the interview, presenting the former NSA head as an automaton among men spies. The rationale doesn't pass the laugh test. Laws prevent lawlessness? Ridiculous. At best, they deter it and only then with sufficient consequences and enforcement. An agency that seemingly has answered to no one for most of its existence shouldn't be entrusted with a checking account, much less the constitutional rights of Americans.

Filed Under: ability, authority, keith alexander, legality, michael hayden, nsa, nsa surveillance