Vaughn Tolle said:

 

Yep, Tracy, it was "just in time".

 

lindainks55 said:

 

History now, but funny history so I'll share:

From Friday's Wonkette:

Last Saturday doctors performed surgery on George Bush’s asshole, and this Saturday they’ll do it again! But this time, it’s the other asshole, Dick Cheney. They are going to take apart his robotic pig heart and replace the core reactor.

That’s the Friday News Fun from the White House this afternoon. The procedure is just the latest of so very many operations for Cheney, who has already racked up “four heart attacks, quadruple bypass surgery, two artery-clearing angioplasties and an operation to implant the defibrillator.”

During Bush’s time as “president” tomorrow morning, he is expected to play with his dogs and maybe work on his fort in the back yard.


UPDATE, SATURDAY:

“Vice” president Dick Cheney had his robotic heart replaced this morning, apparently without complications, and “resumed his normal schedule” of whatever he does on Saturday afternoons — probably reading the new Harry Potter book, working in the garden, or bombing some Muslims somewhere, possibly in Iran this time.

While Cheney was under the knife, George W. Bush enjoyed two hours of being “in charge.” White House spokesman Tony Snow said Bush sat in Cheney’s chair, pretended to talk to “big important people” and “the King of China” on the telephone, appointed his dogs to the Supreme Court, and had “secret service agents” accompany him to lunch at an Applebee’s in suburban Maryland, where he enjoyed a “presidential burger” with curly fries and then had some ice cream.

 

Tracy Phillips said:

 

LINDA---DATS FUNNY.
THANKS

 

Vaughn Tolle said:

 

Yep, Linda that was funny!!

Putting on my specially issued attorneys' speculating hat, the issues arising from the data mining that caused the disagreement within DOJ over the NSA program were, I suspect, the finding of evidence of criminal violations as the result thereof that were not, in any way, shape or form, related to the purported purpose of the NSA program, and the desire on the part of some to use this evidence to prosecute.

 

Vaughn Tolle said:

 

http://tinyurl.com/37fs2f

Above link to article on cnn.com which supplements the N.Y. Times' piece originally posted by Tracy.

Hmm, better order another hat, looks like I may wear the first one out.

 

Danny said:

 

Vaughn,

I'd agree with your assessment there. In my opinion collecting data is going to happen. We use the internet, it isn't anonymous like some people think that it is.

By example, if you type something into a search engine, the contents of which you don't want anybody to know about, then one would hope that nobody becomes interested in that search in the next 18 months to 2 years. Google doesn't anonymize the data they collect for 2 years, and most others don't for 18 months. If you believe them, it would be nearly impossible to tie it back to you, but using the AOL leak as an example it really isn't difficult at all.

That example is just search engines. Imagine then what your Internet Service Provider keeps? What logs do they have of your surfing habits? or the websites visited? or the emails received? The truth becomes, if privacy is what is really sought after, the internet may not be the place to be.

With that, I'm not wanting to make people paranoid. In some respects, in order to combat terrorism, I understand the urge to want to capture data like the NSA did. At the same time, much collateral data is captured also. The data contains information potentially from people who did something illegal, but maybe not under the guise of "terrorism". Thus the temptation becomes, the data was captured, but not intended, but now we have it, what do we do with it?

It is that last part, what do we do with it? Delete it? Start an investigation? Press charges? Fun questions, no easy answers.

 

Vaughn Tolle said:

 

Danny, indeed no easy answers. Let me pose a hypothetical here, merely for purposes of discussion.

Through the mining of data collected under the NSA program, it is discovered that several persons, including U.S. citizens, are engaged in child pornography. Now, there are laws that rightly attack child porn, but enforcement thereof requires obedience to the standard Constitutional protections.

However, as the result of the data mining, there now exists a body of facts which would persuade a judge to rightly issue a search warrant in connection with the child porn ring. Without the data mining, this evidence would not exist. In fact, all parties involved would admit the fact that without the data mining, there would not even be an active investigation into this ring, it being carefully structured and covered up. Should the warrant be issued?

How does any person accused of being involved in the ring attack the warrant, if issued, given the classified nature of the NSA program? There is, after all, a Fifth Amendment right to confrontation, but no confrontation is possible. Further, should evidence being gathered (perhaps unlawfully) be the basis for a prosecution? In traditional police work, the latter question is answered "no" (fruit of the poisonous tree doctrine); but given the status of the NSA program, it is not known whether the program is indeed lawful. Assuming legality of the NSA program as to foreign terrorist communication, does this impart a gloss of lawfulness upon the porn ring evidence accumulated due to the data mining operation which is a part thereof?

I deliberately chose child porn as the subject of my hypothetical. I could have easily chosen topics such as unlawful wagering, cigarette smuggling (without the proceeds going to fund alleged "terrorist front" organizations, just folks out to beat the tobacco taxes), or any number of other criminal activities which do not, in general, offend the body politic to the same degree. The principle, however, remains the same. Thus, the danger of the data mining. Not only is there a way to accumulate data totally unrelated to the express purpose of the NSA program, but there exists no way that we, the citizenry, to know just what it is being gathered and the potential purposes to which it may be put. Thus, the dilemma, and, I suggest, the real crux of the debate within DOJ about continuation of the program.

I am, and was, no fan of Mr. Ashcroft as Attorney General. However, he has gained respect in my eyes as not being one to continue to rubber stamp the program given some of the perceived abuses (as I understand it) in how the program was, in fact, carried out. I suggest most attorneys would also have these problems. The fact that there seemingly existed those within the DOJ and the Administration at the time who didn't gives me more concern than any potential terrorist exploitation of perceived 'weaknesses' within our system. For don't the extremists win if we abandon our Constitutional safeguards merely for the ability to "catch" them?

 

Danny said:

 

Vaughn,

This is a tough decision, and I'm glad you used a good example. That kind of information is probably indicative of what had been captured. I'd range a number of other illegal activities had been captured also. Here are my thoughts:

Certainly not all of those involved in the child porn ring were already under investigation. I'd wager at the same time given that the FBI has been hitting pretty heavily at that, I'm positive some may have already been under investigation. So through coordination between FBI and NSA, there could be identification of those already under investigation(to be determined by the NSA and a judge) and then allow the transfer of information pertaining to those. The rest of the data should be deleted or destroyed. Controversial to keep or destroy, because of my being absolutely against child predators of any kind and secondly my being for the upholding of the constitution.

Now on to the terrorism example again, like I said urge to capture data. It is a huge temptation to want to capture and know what people are doing. In reality it isn't something that is difficult to do(look up Ethereal and WinPcap). It is just the secrecy of it, understandable don't tip off our adversary about us listening in. At the same time, do the terrorists strike a "win" if we as citizens give up some rights? Sure, in some respect I think they do(we lose some rights or give some freedom up), in others I think they don't(more difficult for them to strike and kill us, maybe?). What is gained and what is lost? The question I then have, is the freedom lost worthy of the potential safety gained(assuming that safety has been gained)?

I think there must be a balance between needing to obtain the information faster and easier and at the same time protecting the privacy of individuals. I'm not certain(other than how I poorly outlined it above) how to necessarily accomplish that. It isn't good to let a criminal go because of how information was obtained, as it makes our law enforcement look clumsy at best. Especially so, when the criminal goes back out and commits the same crime again.

 

Tracy Phillips said:

 

UH, OH, better delete all my gay kiddy porn.

just kidden folks.
I don't do regular porn, let alone illegal stuff.

 

Vaughn Tolle said:

 

Danny, the problem the judge finds him/herself in is the evaluation of the credibility of the information leading to a determination of the existence of probable cause for the issuance of a warrant. If the independent magistrate is doing the job called for under the Constitution, this can become a really difficult call. The judge asks the law enforcement official about the source of the information, the LE official says, "Sorry, judge, that's classified, but it's reliable". The judge presses a bit, and at the end of the inquiry, determines that this information was gained from the data mining operation of NSA, and then turned over to domestic LE personnel. The judge is now between a rock and a hard place, for some of the reasons you articulate, namely there is probable cause that a crime is being committed, justifying the issuance of a warrant; but on the other hand, the accused has no way to challenge the evidence. If the judge declines to issue the warrant, the "bad guys" continue to operate, maybe to be caught later; if he issues the warrant, the whole thing blows up into a very large constitutional issue, the ultimate result of which might result in the ring being free to pursue its continuing enterprise.

Thus, my thought that there should be some requirement to obtain a warrant from the FISA court (post facto warrants being OK under the law), with a requirement that anything not lawfully gained under the warrant (evidence of terrorism) being excluded in any trial on any other criminal violation. I'm familiar with the "plain view" doctrine and other exceptions to the warrant requirement under the Fourth Amendment, which would facially allow the evidence so gathered to be used. I'm very aware that anything I do on the Internet is subject to being in "plain view", with no expectation of privacy inherent in the use of the 'net for my purposes.

My main issue continues to be the veil of secrecy surrounding the NSA program and the data mining efforts necessarily part and parcel thereof. I'm old enough to recall the Nixon Administration's assertion that everything it did could be kept secret as it was all a part of that great amorphous subject "national security". I rejected that assertion in 1974, and continue to reject it in 2007. Paraphrasing Benjamin Franklin, he who gives up some liberty for greater security ends up with neither liberty nor security.

To end this with a thought that all first-year law students hear: it's better for 100 guilty persons to go free than for there to be an innocent person wrongfully convicted.

 

lindainks55 said:

 

So although you weren't a fan of Ashcroft there is evidence he was competent; AG AG displays no such evidence.

What a conundrum! Makes my head spin so I can imagine what the problem is doing to the committee's collective thinking.

 

Danny said:

 

Tracy,

LOL. I'm like you. No porn at all in my growing household.

Vaughn,

See, I guess my thoughts differ slightly. Or maybe not well articulated above. My thought is, if the FBI was already doing an investigation(and had a warrant already) for person A. The NSA through their data gathering techniques say captures more information useful to the FBI regarding person A, then the FBI could request does the NSA have information on person A. The NSA together with a judge says, looks like we do lets give that to the FBI.

Now, if the FBI didn't have an already issued warrant on Person B, then the NSA wouldn't provide information just because something is happening. To me, that seems equitable and semi-fair. Then there is no knowledge of the wrong doing. That said person may then end up under investigation by other means, but not immediately.

I just happen to agree, though not always in the best interest of making the job of law enforcement easier, that sometimes it takes work to build a case. I think it is better to have done that work and build a solid case, than to risk ever having it throw out. To me law is a contract, that says this is what can be or can not be done. It is also a contract in how far I(as I hope to join the ranks of the FBI) can go in gathering and collecting information used for proving guilt or innocence.

To me, the NSA program(regardless of legality) has caused more problems than solutions. Now, granted this is from an outside looking in view. For all I know, perhaps it has done just what it was meant to do. I certainly understand the reasoning behind it, but perhaps it was a jump the gun solution which I think most of the time is a bad idea.

 

Vaughn Tolle said:

 

Danny, I understand your perspective here. That's why I took pains, in the hypothetical I posted, to clearly state there was no prior or concurrent investigation, that all involved admitted there was no knowledge of the existence of the "ring" by LE or others. I was deliberately trying to set up the most difficult of possible factual situations to suggest what the issues are/were with the NSA data mining program within DOJ.

The whole concept of a contract is, truly, what underlies our Declaration of Independence and later the Constitution (with a bit reflected in the Articles of Confederation). The development of the philosophical theory of "social contract" seems quite influential in the development of our (U.S.) system of governance. The essential thought, as developed, was that those who govern do so under a contract with those being governed to act wisely, in the best interests of the governed, the governed retaining the right to remove those who are perceived to violate the contract. This flows from the greater "heretical" thought at the time that as humans, we all have certain "natural rights" which cannot be proscribed by the government without our consent, such rights extant by merely being born, without any religious or other basis therefor.

Thus, the thought at the time the original Constitution was being debated that an enumeration of rights (as found in the first ten amendments) was totally unnecessary. Wiser persons than I ascertained the need for the enumeration (likely based upon the "oral constitution" of Great Britain which was ignored by the royalty when convenient), much as was done in the Magna Carta, set down in writing centuries before the formal development of the Social Contract theory of government.

Recognizing that much of what I posted is grossly over-simplified and generalized....

 

Danny said:

 

Vaughn,

But it still does drive the point home. I simplified even further anyway. ;)

Now I understand what it was you were saying(I can be slow). See, for me then if no prior knowledge by LE, then if the data captured was illegally obtained, then it should be destroyed. If it were legally obtained, then there needs to be a way for a defendant to object to how the data was collected if it is to be used against her/him.

Much like I said, proving guilt lies on the work done by law enforcement. Proving innocence lies on the defendant. However, the defendant deserves and has the right to be able to defend her/himself. Preventing that because of how the information was collected means to me, that maybe LE should not be provided a warrant if said probable cause can not be defended against in court.

Reminds me of a situation I had, I use a wireless router and had someone leaching off my router(living in an apartment complex). Mind you, my router had WEP only at the time. So no problem, I started cycling through a series of keys(15 of them), but started noticing that said person was consistently connecting to my router in about 5 to 10 minutes time.

So at night, I'd unplug my router and during the day I'd cycle through keys much faster(had written a little script to do this for me, since my computer was the only wireless device connected anyway). I've since switched to a new router(WPA2) and not had that problem.

The question then comes down to, since I know what this individual was doing, but don't know who it was, should I have reported that I know someone was doing something wrong(theft of services) in or around my apartment complex, but no way to know who. Or just let it be? I let it be, and just solved the problem on my end. After all, not like much could be done to find out who the person was.

 

Vaughn Tolle said:

 

Danny, therein lies the conundrum, right? Going back to my hypothetical and your response, assuming arguendo that the NSA program is lawful, then there is no "poison fruit" that is, the data obtained and mined being lawful, anything else that might come to light is "fair game" under existing Fourth Amendment jurisprudence. Thus, the need for, IMHO, statutory limitations on the use of such data in unrelated criminal investigations and prosecutions.

A quibble with one of your statements, namely that the defendant has the duty to prove innocence. No, the defendant has no such duty. It is always the duty of the prosecution to prove guilt beyond a reasonable doubt. When a defendant raises an affirmative defense, then the burden shifts, to be sure, to the defendant to prove the existence of the affirmative defense, but as a basic proposition, it is the burden of the prosecution and the prosecution only to prove its case beyond a reasonable doubt. It's the duty of defense counsel to make sure the prosecution does so; no more, no less. Thus, it only takes convincing one juror that the prosecution has failed in its duty; there is no obligation upon a defendant to testify in his/her own defense, and the Prosecutor is not to comment on the failure to so testify; and so it goes.

BTW, like the way you handled the router issue.

 

Danny said:

 

Vaughn,

This is true. That was my bad, it isn't up to the defendant to prove anything. I suppose except to present reasonable doubt(doesn't really prove innocence) but provides reasonable questions to the prosecutions theory.

About my router, it addressed the issue I was having. For those interested, WEP is very easily broken. WPA(and WPA2) are much more difficult to break.

What these acronyms stand for are:
WEP: Wired Equivalent Privacy
WPA(2): Wireless Fidelity(WiFi) Protected Access

The difference in the two is what encryption standard they use and further how the standard is applied.

No matter, if using wireless I'd recommend the additional features(depending on router brand some support these and some do not) of: MAC address filtering and internet access hours. Plus firewall rules for attempting to block things like Peer to Peer file sharing services(how teenager like to "borrow" their songs).

However, currently WPA and WPA2 are more difficult to break into, but like all things encrypted, as computers become more powerful, encryption become "easier" to break.

 

Rox said:

 

Good afternoon, my fine friends!

It's the principle of the thing.

No porn here, either. But considering the wide variety of research I do, I've often wondered if I might someday get a call or visit from the government, asking why. For one book (never finished), I used the FBI website for information on training, then researched trafficking of humans and other related subjects. Of course, nothing happened to me for doing that. But I've heard--and it may have been nothing but an untrue rumor--that one writer had her computer and all files taken by the FBI in a pre-dawn raid a few years ago. Why? Because of the websites that had been visited...all for research on a book. Completely ridiculous and scary, if true.

I have nothing to hide, yet I will kick and scream if my Rights are taken away. I don't break the law, at least willfully. Good grief, I get nervous if I drive 5 miles over the speed limit!

 

Vaughn Tolle said:

 

I can see the headline now: "Local author the subject of federal investigation because of admissions in internet posts of serious violations of various laws". :-)

All joking aside, it's a real, substantive problem. There are no good answers, with good being defined for this purpose as satisfying all competing interests.

 

Danny said:

 

Rox,

I would suspect that if the research sites were the FBI's own websites, nothing would happen. Before choosing to pursue a career with the FBI, I was all over their website(and still am) looking for tips, information about what they do, and how my degrees would best be suited and applied within the FBI. It is just part of my preparation for my Phase two interview, which I expect to get.

 

Rox said:

 

Danny, I'm pretty sure you're right. I was just a bit paranoid. :) Everything there is open to the public and verrrrry interesting. Lots of excellent information on a lot of things.

My fingers are crossed for you. I have a audio tape of a female FBI agent, who worked undercover. Fascinating stuff.

And for any of you Criminal Minds fans, sadly, Mandy Patinkin will not be a part of the cast, come the fall season. (Did I already mention that? Long-term memory is bad enough, but short-term is almost to the point of non-existent.)

 

Danny said:

 

I know nothing about Criminal Minds. :(

However, I watch CourtTV once in a while: FBI Files, The Investigators, and a few others they have. Just fun to learn how some things are solved.

 

Vaughn Tolle said:

 

Danny, I don't watch CourtTV at all; maybe it's due to what I do. :-)

I suggest paying attention to any trials it decides to cover from "gavel to gavel" to ascertain what it takes to develop legally admissible evidence in the process of solving cases. Yeah, I know; about as entertaining as watching paint dry, but if you are successful in your desired career move, this is likely more important to the process than merely "solving" the case.