News-Record.com

You didn't hear much about it on Sunday, but Comedy Central's Stephen Colbert delivered a comedy routine Saturday night at the annual White House correspondents' dinner, the one at which the president traditionally shows up. (It's fairly long, so here are links to: Part 1, Part 2, Part 3.) If you're not familiar with Colbert's schtick on his show, his character is a note-perfect parody of a pompous conservative talk-show host. (Think a younger, skinnier, less perverted Bill O'Reilly.)

Now, Colbert's riff took on not only the president, as is customary at these annual events, but also such people as John McCain and Antonin Scalia (and the latter apparently enjoyed the heck out of the fun being had at his expense; the video shows him laughing so hard he's about to fall out of his chair). But this was my favorite part of Colbert's routine:

Here's how it works: the president makes decisions. He's the decider. The press secretary announces those decisions, and you people of the press type those decisions down. Make, announce, type. Put them through a spell check and go home. Get to know your family again. Make love to your wife. Write that novel you got kicking around in your head. You know, the one about the intrepid Washington reporter with the courage to stand up to the administration. You know - fiction.

Man, the audience was most certainly not roaring with laughter.
Because the truth hurts.

More than a decade ago, I reviewed for this paper a book called "On Bended Knee: The Press and the Reagan Presidency," by Mark Hertsgaard. In it, Hertsgaard documented how extraordinarily deferential the news media became during President Reagan's tenure, not really waking up until the news about Iran-Contra broke in late 1986 (and it was a Lebanese newspaper, not one of ours, that broke it).

Colbert apparently thinks the national news media, for whatever reasons, have done the same thing during the Bush 43 administration. And its glittering denizens at the banquet clearly didn't appreciate being told so on live television, even if it was only C-SPAN.

They need to get over themselves. Even as some of them begin to awaken from their slumber, they need to realize that there are worse things than being made fun of on cable TV.

According to AllergyHealthOnline, the Top 10 Spring Allergy Capitals are:

1. Hartford, Conn.

2. Greenville, S.C.

3. Boston, Mass.

4. Detroit, Mich.

5. Orlando, Fla.

6. Knoxville, Tenn.

7. Omaha, Neb.

8. Sacramento, Calif.

9. Washington, D.C.

10. Baltimore, Md.

I'm a little surprised not to see Atlanta on there. A friend tells me that the pollen count, typically around 450 in a bad year, is several multiples higher.

(Via Al)

So Hearst Corp., owner of one of the San Francisco papers, is providing a quarter-million dollars as part of MediaNews Group's billion-dollar purchase of the San Jose and Contra Costa papers. San Jose alum Dan Gillmor calls it "unnervingly close to a noncompete agreement," and absent further details I'd have to agree.

The arrangement might be similar to "joint operating agreements," federally sanctioned exceptions in antitrust law in which two financially struggling papers (with different owners) in a market combine business operations while maintaining competing newsrooms. But it is not the same thing, and if the government enforced antitrust law much anymore, I have no doubt this deal would be getting the kind of examination that would make a prostate exam feel like a quick stick-out-your-tongue in comparison.

From this morning's "Politics Hour" chat at washingtonpost.com with Washington Post national politic reporter Tom Edsall:

Washington, D.C.: If [In? -- Lex] defending his former "reporter," Jon Stewart said that the correspondents dinner is, "where the President and the press corps consummate their loveless marriage."

There is something just so...right...about that.

Tom Edsall: It is a great line. He should try the Gridiron Dinner if he wants to see the consumation turned into an orgy.

One word: Ew.

Local blogger and filmmaker Chris Knight has done a 2-minute short that's a parody of the opening sequence of HBO's Mafia drama "The Sopranos" ... filmed entirely in Rockingham County. I'm no film critic, but I thought it very nicely done. See what you think. (And if you've never seen the opening sequence of "The Sopranos," he has a link to that as well, purely for the purposes of disinterested scientific inquiry.)

The online magazine Slate's media critic, Jack Shafer, has a thoughtful article up on government secrecy in the age of government crime:

Every time the Bush administration cracks down on openness, it creates new sources for journalists inside the bureaucracies. Tom Blanton, director of the National Security Archive, says the strategy of decertifying the press works only if you can block the press from obtaining alternative sources of information. That's something the administration hasn't been able to do, says Blanton, citing the blockbuster stories about the Bush's secret prisons, secret torture programs, secret rendition operation, warrantless wiretaps, and so on.

Blanton attributes such scoops to a "revolt of the JAGs," his shorthand for the recent round of whistle-blowing by career civil service and career military officers. It's not that these whistle-blowers oppose secrecy, he notes, giving the example of the FISA court, which issues secret warrants. In the 20-plus years of FISA warrants, not one has been leaked because most everyone respects the FISA process. The establishment of FISA was publicly debated in congressional hearings, which demonstrated the need for such a court, but one that operated under legal limits.

He contrasts the public FISA process with the secret machinations of the "torture lawyers" - Alberto Gonzales, David Addington, John Yoo, et al. - whose primary goal is to enhance presidential power. In the minds of many honorable government employees, the expansion of presidential power in the post-9/11 era lacks basic legitimacy, making it vulnerable to leaks.

By "lacks basic legitimacy," of course, he means, "is nowhere rooted in, and frequently violates the letter as well as the spirit of, the Constitution, federal statutes and/or treaties." And, remember, using classification to conceal a crime is, itself, a crime.

I don't care who's doing it; behavior like that is un-American by definition.

So Rep. Patrick Kennedy, D-R.I., had himself a wreck and offers this defense: "I wasn't drinking. I was high." Or, you know, words to that effect.

I don't know about D.C., but here in N.C., you can get a DWI even if you haven't had a drop to drink, if you have taken medication of any kind that has impaired your ability to drive. (The "I" in DWI stands for "impaired," not "intoxicated." True fact, as Mark Sutter would say.) You'll want to remember that the next time you have a cold.

And if that's the case in D.C. as well, then by all means the district should prosecute Kennedy. (Or even if it's not the case, if prosecutors can prove Kennedy was, in fact, drinking, although I suspect we've lost the chance to get a definitive answer on that question. And why is it that this particular Congresscritter appears to have gotten special treatment from the police?)

But here's what I don't get (and neither does Josh Marshall of Talking Points Memo and TPMmuckraker.com): Why are the networks making such a big deal about this ... and ignoring bigger things going on?

The simple fact is that when you have an alleged driving under the influence or sleep-driving story and it involves a Kennedy, the press is going to be all over that. What's new.

But here's what does get my attention. There's another pretty tawdry story that's out there -- one about members of Congress getting sauced up at rollicking parties and set up with hookers by crooked defense contractors in exchange for help bagging pricey defense contracts.

That's pretty salacious too. You'd expect the press to be all over it. As [TPMmuckraker.com staffer] Justin reported yesterday, the legendary Watergate Hotel has already received mulitple subpoenas from federal investigators investigating the hotel's role in 'Hookergate'. So this thing's for real.

Yet, I'm not seeing any morning show's running with it.

And, while the Kennedy story is 'newsy' it doesn't really have any greater policy implications. And the public trust implications are minor. The Wilkes-Watergate-Hooker story, on the other hand, is both. It's salacious, which the press loves. And it's also directly tied to crooks ripping off taxpayers, probably allowing our service members abroad to have shoddy equipment or defense dollars going to worthless projects.

So, [TPMmuckraker.com is] the Kennedy case. But why the silence [except, he later notes, on last night's NBC Nightly News] on the much bigger scandal bubbling up out of the House Defense Appropriations Subcommittee?

Cricket, cricket ...

Why indeed? Honestly, I don't know the answer. I mean, normally, a story about an (allegedly) impaired Kennedy would trump a policy story on TV news. But doesn't the hooker angle trump that? I mean, c'mon ... Congresscritters, hookers, bribes ... what's not to love, even for TV news?

UPDATE: CIA director Porter Goss resigns, and The Wall Street Journal explains how that might be related:

The agency also has been drawn into a federal investigation of bribery that has sent former Rep. Randall "Duke" Cunningham to prison. Just this past week, the CIA confirmed that its third-ranking official, a hand-picked appointee of Mr. Goss, had attended poker games at a hospitality suite set up by a defense contractor implicated in the bribing of former Rep. Cunningham. Friday, people with knowledge of the continuing Cunningham inquiry said the CIA official, Kyle "Dusty" Foggo, is under federal criminal investigation in connection with awarding agency contracts.

Unrelatedly, the Journal's Web site, much of which is normally behind a subscriber pay wall, is totally free at the moment in celebration of its 10th anniversary. They've done many, many things right on that site, so go check it out.

From tech god Stephen Paschall to N&R staff:

Folks,

The vendor who provides hosting for News-Record.com experienced a catastrophic hardware failure two days ago which impacted multiple systems in their environment, and they have been working to isolate and correct the resulting problems as quickly as they can identify them.

Translation: News-Record.com will likely continue to perform poorly (to say the least) for several hours yet.

I will provide additional information as it becomes available, and I apologize for any inconvenience this may be causing you.

Offered without comment (if I can hold out against the urge to do so), this classified ad from Craigslist:

I know this is a long shot, but it's worth a try. This month I attained my B.S. degreee in journalism with a minor in marketing. I hope to one day soon be a leading broadcast journalist, but feel that my small chest is holding me back.

I am seeking understanding, kind-hearted people who are willing to invest in my A-cup breasts and help me finance a breast augmentation surgery and advance my career in broadcast journalism.

The surgery will cost $3,000 and get me up to a full C-cup. I believe that this is the final piece that I need to have more self-confidence and gain better job opportunities.

In this day and age, I know how important looking good is for any career. I know this surgery will increase my chances three-fold on top of my education, experience and talent.

Please reply if you can help. This is not only an investment in my confidence; It is an investment in my fruitful career. Thank you.

Must ... not ... snark ...

(Via reader Phred)

Says here that 7 out of 10 journalists were accused of bias last year.

The other three must've been out on disability.

Study finds no proof of space aliens.

Effective immediately, I'm returning to reporting in a general-assignment role. I'm still going to be involved with our citizen-journalism initiative, particularly in working with bloggers or others in the community who want to partner with us on reporting stories, but as we seek suitable people/stories for such partnerships, I'll also be doing some reporting and writing of my own.

Again, if you know of a story you think our readership would be interested in, and you want to partner with us to get it into the paper (and on our Web site and yours, if you have one), then get in touch. And, of course, if you just want to pass on a story idea, I'll take those, too. :-)

UPDATE: I'll be working with Margaret Banks and others from the newsroom to cover the release of the Truth & Reconciliation Commission's report on May 25, among other assignments.

As our story today indicated, the Minuteman Project, which seeks to organize armed citizen patrols at the United States-Mexico border, will be holding a rally tonight in Greensboro.

For some additional background on the Minuteman Project and its organizers, you could do worse than to consult Orcinus, a blog written by freelance journalist David Neiwert. Neiwert, the author of two books on right-wing extremism in this country, published a series earlier this year called "The March of the Minutemen," to which you can find links on the left side of his blog's home page.

Since The New York Times reported in December that President Bush ordered the National Security Agency to monitor communications of U.S. citizens without a warrant, the president has insisted that no one's telephone calls were being monitored except those between the U.S. and other countries involving at least one suspected terrorist.

Monitoring such calls without a court's permission violates the Foreign Intelligence Surveillance Act, enacted in 1978 and updated five times since 9/11.

But that isn't all the NSA has been doing:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth [the nation's three largest telcos; Bellsouth is the Greensboro area's primary provider -- Lex], people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. This program does not involve the NSA listening to or recording conversations. But the spy agency is using the data to analyze calling patterns in an effort to detect terrorist activity, sources said in separate interviews.

"It's the largest database ever assembled in the world," said one person, who, like the others who agreed to talk about the NSA's activities, declined to be identified by name or affiliation. The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added.

For the customers of these companies, it means that the government has detailed records of calls they made — across town or across the country — to family members, co-workers, business contacts and others.

The three telecommunications companies are working under contract with the NSA, which launched the program in 2001 shortly after the Sept. 11 terrorist attacks, the sources said. The program is aimed at identifying and tracking suspected terrorists, they said.

The sources would talk only under a guarantee of anonymity because the NSA program is secret.

Air Force Gen. Michael Hayden, nominated Monday by President Bush to become the director of the CIA, headed the NSA from March 1999 to April 2005. In that post, Hayden would have overseen the agency's domestic call-tracking program. Hayden declined to comment about the program.

The NSA's domestic program, as described by sources, is far more expansive than what the White House has acknowledged. Last year, Bush said he had authorized the NSA to eavesdrop — without warrants — on international calls and international e-mails of people suspected of having links to terrorists when one party to the communication is in the USA. Warrants have also not been used in the NSA's efforts to create a national call database.

In defending the previously disclosed program, Bush insisted that the NSA was focused exclusively on international calls. "In other words," Bush explained, "one end of the communication must be outside the United States."

As a result, domestic call records — those of calls that originate and terminate within U.S. borders — were believed to be private.

Sources, however, say that is not the case. With access to records of billions of domestic calls, the NSA has gained a secret window into the communications habits of millions of Americans. Customers' names, street addresses and other personal information are not being handed over as part of NSA's domestic program, the sources said. But the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information. ...

The government is collecting "external" data on domestic phone calls but is not intercepting "internals," a term for the actual content of the communication, according to a U.S. intelligence official familiar with the program. This kind of data collection from phone companies is not uncommon; it's been done before, though never on this large a scale, the official said. The data are used for "social network analysis," the official said, meaning to study how terrorist networks contact each other and how they are tied together. (emphases added)

Even if the program is as limited as the article claims, the technology involved would make expanding it a short, easy step. What follows is a description of the computer hardware and software involved. First posted April 7, it's kind of long and kind of technical, but it's extremely important:

Earlier today [4/7/2006} we found out that the EFF [Electronic Frontier Foundation, a nonpartisan, nonprofit group that works for personal rights online -- Lex] had sued AT&T over their secret work with the NSA on surveillance of millions of US citizens without wiretaps. We learned that paragraph 65 of this complaint shows EFF is trying to turn it into a nationwide Class Action suit covering all current and former customers (any after 9/2001) of AT&T. And we learned that a retired AT&T technician had stepped forward and disclosed the installation of secret NSA spy equipment in the San Francisco trunk facility. As well as the belief that similar equipment is in place in Seattle, San Jose, Los Angeles and San Diego.

Specifically, this equipment was the Narus ST-6400, a machine that was capable of monitoring over 622 Mbits/second in real time in May, 2000, and capturing anything that hits its' semantic (i.e. the meaning of the content) triggers. The latest generation is called NarusInsight, capable of monitoring 10 billion bits of data per second. ...

How powerful is this? OC-192 carries about 10 gigabits of data per second. Ten billion bits per second, monitored in real-time. That is stunning. This is one damned powerful machine, one of the most powerful I've ever heard of in 25 years in IT.

And what does it monitor while looking at this 10 billion bits of IP data per second? First lets take a look at what the network model is, the OSI model of seven layers. NarusInsight focuses on two layers: number four, the transport layer, built on standards like TCP and UDP, the physical building blocks of internet data traffic, and number seven, the application layer, built on standards like HTTP and FTP, which are dependent on the application using them, i.e. Internet Explorer, Kazaa, Skype, etc. It monitors 10 billion bits per second at level four and 2500 million bits per second at level seven. For reference, the 256K DSL line I am using equals .25 million bits per second. So one NarusInsight machine can look at about 39,000 DSL lines at once in great detail. ...

So what exactly is done to and with this data? That's kind of a grey area, so let's try to find what we can. The starting point is called the Internet Protocol Detail Record, which Narus helped found. From that FAQ I just linked to, we learn that ...

IPDR.org has been in existence since 1999 and more than a dozen vendors have actual IPDR implementations "etched in code". Their systems are actually able to talk to each other and interoperate. Version 2.5 and up of the NDM-U represents a stable basis for development. IPDR.org's Interoperability Pavilion is a working demonstration of multiple companies exchanging service usage data in that format.

Service usage data. That would be data on the actual usage of the Internet. And what kind of data would this be? Way back in 1999, this article stated:

In an effort to provide more complex network traffic analysis, Narus is introducing its semantic network traffic service. The company cites research which predicts the fast-growing ISP sector will become stagnant without the ability to offer differentiated services. In order to gain significant revenues from these services, a technology was necessary to allow usage based pricing.

"We realized that, at the heart of the data that is needed to accurately measure usage and enable 'pay-as-you-go' business models for Internet service providers, is what we call the 'semantics' of network traffic," said Ori Cohen, Narus' founder and chief executive officer.

"In short, by seeing the 'semantics' of network traffic, service providers can see 'inside' the data, providing much more detailed insight about the use of the Internet and the perceived value of specific applications than existing technologies allow." [emphasis in original]

Semantic Traffic Analysis uses network technology to consistently capture and analyze all IP data streams on heavily trafficked networks remotely and non-invasively. In addition, the semantics of the data stream are determined also, as well as the protocol used and the application taking place. A variety of other data is available as well.

Remember that semantics is not just the data, but rather the meaning of the data. It looks at the the data in a more comprehensive way than looking for keywords. Each NarusInsight machine does this at 2500 million bits per second, in real-time.

You really wonder why BushCo doesn't want to talk about this stuff? It's the biggest invasion of privacy in history by several orders of magnitude.

How can we know? From Narus' Lawful Intercept and Regulatory Compliance page:

Explosive Internet growth in recent years has transformed worldwide communications, yielding tremendous efficiencies and benefits, as well as many risks.

For example, terrorist attacks around the globe have been carefully orchestrated through Internet-based forms of communications such as e-mail, messaging, hidden Web pages and now VoIP, forcing governmental organizations and law enforcement agencies to re-evaluate how they are providing public security as it becomes so much easier and faster to communicate electronically.

Recent mandates and the resulting standards referenced under CALEA in the United States and ETSI in Western Europe aim to preserve the right of law enforcement agencies to conduct authorized electronic surveillance in an effort to protect the public and its right to privacy. However, these mandates create IT headaches for carriers as they struggle to meet the requirements.

With a suite of products targeted at meeting lawful intercept requirements, Narus simplifies lawful intercept tasks helping carriers and agencies meet requirements without experiencing any degradation in service quality.

Key benefits
-Packet-mode data intercepts for Service Providers and Carriers.
-Wireline to wireless and WiFi or dialup to broadband.
-"Instant Compliance" with CALEA and ETSI for simple, fast and hands-free compliance.
-Carrier-grade speeds, performance and scalability.
-Supports all of your services, out-of-the-box.
-Securely manages resources while simplifying audits and reporting.
-Network and vendor agnostic.
-Enables additional application for revenue generation or revenue protection.

This data flows right into NarusInsight Intercept Suite, which enables:

Packet-level, flow-level, and application-level usage information is captured and analyzed as well as raw user session packets for forensic analysis, surveillance or in satisfying regulatory compliance for lawful intercept.

The Lawful Intercept module offers carriers and service providers compliance with regulatory requirements regarding lawful intercept. The Lawful Intercept module provides an end-to-end solution consisting of Administration, Access and Delivery functions. The Lawful Intercept module is compliant with CALEA and ETSI standards. It can be seamlessly integrated with third party products for testing/validation or as a complete law enforcement solution.

The Directed Analysis module seamlessly integrates with NarusInsight Secure Suite or other DDoS, intrusion or anomaly detection systems, securely providing analysts with real-time, surgical targeting of suspect information (from flow to application to full packets). The Directed Analyis module provides industry standard formats and offers tools for archival and integration with third party investigative tools.

These capabilities include playback of streaming media (i.e. VoIP), rendering of web pages, examination of e-mail and the ability to analyze the payload/attachments of e-mail or file transfer protocols. Narus partner products offer the ability to quickly analyze information collected by the Directed Analysis or Lawful Intercept modules. When Narus partners' powerful analytic tools are combined with the surgical targeting and real-time collection capabilities of Directed Analysis and Lawful Intercept modules, analysts or law enforcement agents are provided capabilities that have been unavailable thus far. (emphases in original)

... That's what it appears we are up against, folks. Real-time semantic data monitoring on a huge scale. ...

Lex here again. So, put another way, the government appears to have the capability of monitoring and storing far more information about our calls and Internet usage than they're saying they have used up to now -- and at least in the case of Internet, it appears to be content of our data -- e-mails, FTP'd files, whatever -- as much as simple transaction records. (That would explain how this could turn into the Largest Database Evah, because even a comprehensive file with basic details on every phone call, but in text only, couldn't come close to being the Largest Evah. An even more likely explanation, albeit one the story doesn't prove? They're storing the content of the calls; sound files are much bigger than text files containing the same info.) We have no way of knowing right now whether they're telling the truth about what they have and have not done. Remember, the president continues to insist that all communications on which information was gathered were international. We know now that that is not true.

Is this operation legal? At first glance, I'd say it appears to violate FISA, but I'm not a lawyer. But the USA Today article suggests it violates other laws as well:

Under Section 222 of the Communications Act [link added -- Lex], first passed in 1934, telephone companies are prohibited from giving out information regarding their customers' calling habits: whom a person calls, how often and what routes those calls take to reach their final destination. Inbound calls, as well as wireless calls, also are covered.

The financial penalties for violating Section 222, one of many privacy reinforcements that have been added to the law over the years, can be stiff. The Federal Communications Commission, the nation's top telecommunications regulatory agency, can levy fines of up to $130,000 per day per violation, with a cap of $1.325 million per violation. The FCC has no hard definition of "violation." In practice, that means a single "violation" could cover one customer or 1 million.

In the case of the NSA's international call-tracking program, Bush signed an executive order allowing the NSA to engage in eavesdropping without a warrant. The president and his representatives have since argued that an executive order was sufficient for the agency to proceed. Some civil liberties groups, including the American Civil Liberties Union, disagree.

Again, I'm not a lawyer, but I've been unable to find any reference to a case in which federal courts have upheld a notion that a president's executive order can singlehandedly overturn a Congressional ban. (Anyone who knows of one, by all means shoot me a link.)

And the details regarding Qwest's refusal to participate in the program shed additional light. Again, from USA Today:

One major telecommunications company declined to participate in the program: Qwest.

According to sources familiar with the events, Qwest's CEO at the time, Joe Nacchio, was deeply troubled by the NSA's assertion that Qwest didn't need a court order — or approval under FISA — to proceed. Adding to the tension, Qwest was unclear about who, exactly, would have access to its customers' information and how that information might be used.

Financial implications were also a concern, the sources said. Carriers that illegally divulge calling information can be subjected to heavy fines. The NSA was asking Qwest to turn over millions of records. The fines, in the aggregate, could have been substantial.

The NSA told Qwest that other government agencies, including the FBI, CIA and DEA, also might have access to the database, the sources said. As a matter of practice, the NSA regularly shares its information — known as "product" in intelligence circles — with other intelligence groups. Even so, Qwest's lawyers were troubled by the expansiveness of the NSA request, the sources said.

The NSA, which needed Qwest's participation to completely cover the country, pushed back hard.

Trying to put pressure on Qwest, NSA representatives pointedly told Qwest that it was the lone holdout among the big telecommunications companies. It also tried appealing to Qwest's patriotic side: In one meeting, an NSA representative suggested that Qwest's refusal to contribute to the database could compromise national security, one person recalled.

In addition, the agency suggested that Qwest's foot-dragging might affect its ability to get future classified work with the government. Like other big telecommunications companies, Qwest already had classified contracts and hoped to get more.

Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court [the special, secret federal court that oversees wiretapping under the Foreign Intelligence Surveillance Act and must issue warrants for such wiretapping to take place -- Lex]. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office. A second person confirmed this version of events.

So the government didn't want to try to get permission from the FISA court, which has approved all but a few of the thousands of requests for warrants it has ever received, because it was afraid the court would say no. And it didn't want to ask for authorization from the attorney general, apparently -- although this is not clear -- for the same reason.

Yeah, I'd be wondering about the legality, too, were I Qwest's CEO.

Why would telephone companies take the risk of big fines to go along with the government's request? I don't know, and I certainly hope journalists are raising that question today. Perhaps they honestly thought it essential to national security. And the NSA was willing to pay them for the data, USA Today reports, although it's not clear from the article (which refers, without elaboration, to a "contract") whether it ever actually did so. At least one commenter at USAToday.com, however, raises the possibility that they did so in exchange for administration support of a change in law they're pushing that would, in effect, let large telecommunications companies such as AT&T control how well certain Web sites work for you, depending on how much money those Web sites are paying the telcos.

At noon today President Bush issued a statement on domestic wiretapping, although he did not address the USA Today report directly or take any questions. Among its key points:

First, our intelligence activities strictly target al Qaeda and their known affiliates.

If USA Today is accurate, this statement is flatly untrue.

Second, the government does not listen to domestic phone calls without court approval.

In fact, both the president and the attorney general previously have admitted that the NSA surveillance program had, in fact, tapped some domestic calls. Moreover, this statement, even if true, doesn't address the key issue of the USA Today report: recording details on every single phone call made in the U.S. via its three largest telcos, without the consumer's knowledge and in apparent violation of both FISA and other telecommunications law.

Third, the intelligence activities I authorized are lawful and have been briefed to appropriate members of Congress, both Republican and Democrat.

If he's so confident they're lawful, why didn't he seek FISA-court approval? If he's so confident they're lawful, why has he blocked a Justice Department probe?

Moreover, as Intelligence Committee members of both Houses and both parties made clear, prior to the New York Times report, members of Congress were not, in fact, fully briefed. In many cases they were given fragmentary information, which they were sworn not to share with anyone else, even top aides. Thus, they could not exercise true oversight.

And Republican Sen. Arlen Specter of Pennsylvania, chairman of the Senate Judiciary Committee, is disturbed enough by the report to announce he'll be inviting telco executives to discuss the program with his committee. That would not be the kind of invitation one turns down.

Fourth, the privacy of ordinary Americans is fiercely protected in all our activities. We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al Qaeda and their known affiliates.

No, he's not mining "the personal lives" of millions of innocent Americans, just records of their phone calls.

Every last one of their phone calls.

UPDATE: Even if the program were legal, it probably doesn't do what it's supposed to, wastes money and thereby let's real terrorists get away, one expert says.

UPDATE: Opinions on the legal issues from Orin Kerr of the Volokh Conspiracy and Glenn Greenwald at Unclaimed Territory.

UPDATE: The current Attorney General appears to have ... well, not been fully forthcoming in his Congressional testimony on this subject. From page 26:

[Rep. Gerald] NADLER: Number two, can you assure us that there is no warrantless surveillance of calls between two Americans within the United States?

GONZALES: That is not what the president has authorized.

NADLER: Can you assure us that it's not being done?

GONZALES: As I indicated in response to an earlier question, no technology is perfect.

NADLER: OK.

GONZALES: We do have minimization procedures in place...

NADLER: But you're not doing that deliberately?

GONZALES: That is correct.

Oops.

UPDATE: Talking head and former congressman Joe Scarborough is not amused. Nor is former House Speaker Newt Gingrich: "I’m not going to defend the indefensible."

UPDATE: The leftist Web publication Think Progress has posted a FAQ on some of the legal issues that suggests that the participating telcos might face significant civil liability, some government defenses notwithstanding.

Doorbell rings it's the FBI
We learned spy vs spy
You my friend, are guilty as can be, be

I know you called, I know you called .... *

So, the NSA is not only gathering phone records on the calls of most Americans, a federal source is telling ABC News that the government is tracking phone calls by it, The New York Times and the Washington Post to find out who these news organizations' sources sources are.

What follows is pure speculation. But I'll bet you a beer that if they're using phone records to track down news media sources, they're looking into the phone calls of real or suspected political enemies as well. When government goes bad, it tends not to go just a little bad.

UPDATE: Well, that didn't take long:

The FBI acknowledged late Monday that it is increasingly seeking reporters' phone records in leak investigations.

"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official.

Translation: The attorney general is telling us we don't need no steenkin' warrants, notwithstanding the fact that FISA still says we certainly do.

The acknowledgement followed our blotter item that ABC News reporters had been warned by a federal source that the government knew who we were calling.

The official said our blotter item was wrong to suggest that ABC News phone calls were being "tracked."

"Think of it more as backtracking," said a senior federal official.

Oh. Well, I feel so much better.

Memo to the FBI: Instead of wasting all this time and effort "tak[ing] logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized release of classified information," why don't you take logical investigative steps to determine if a criminal act was committed by a government employee by the unauthorized classification of material documenting crimes on the part of the government? Because Patriot Act or no Patriot Act, it remains a crime to use the classification process to conceal crimes by government officials.

I'm just sayin'.

*Thanks to my friend the DivaGeek for reminding me of the REM lyrics.

Just because it seemed relevant. (All emphasis added; my comments in italics.)

§50.10 Policy with regard to the issuance of subpoenas to members of the news media, subpoenas for telephone toll rec&chyph;ords of members of the news media, and the interrogation, indictment, or arrest of, members of the news media.

Because freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues. This policy statement is thus intended to provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function. In balancing the concern that the Department of Justice has for the work of the news media and the Department's obligation to the fair administration of justice, the following guidelines shall be adhered to by all members of the Department in all cases:

(a) In determining whether to request issuance of a subpoena to a member of the news media, or for telephone toll records of any member of the news media, the approach in every case must be to strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice.

(First, note the presumption that a warrant is required to seek these records. These regs were promulgated in 1980 -- after FISA was enacted but before the Patriot Act. Is there any case law that would supersede the warrant requirement? And if the FBI is relying on so-called National Security Letters (NSLs), which are basically administrative rather than judicial subpoenas, is there any case law on the constitutionality of this procedure? Finally, doesn't "the public's interest in effective law enforcement and the fair administration of justice" include an interest in knowing about illegal government activity, even if exposing that activity is, itself, at least nominally illegal? -- Lex)

(b) All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media.

(Again, note the presumption that a warrant is required to seek telephone records. Note also the requirement that other avenues be exhausted first. Has this requirement been met in any/every ongoing investigation involving journalists' phone records? -- Lex)

(c) Negotiations with the media shall be pursued in all cases in which a subpoena to a member of the news media is contemplated. These negotiations should attempt to accommodate the interests of the trial or grand jury with the interests of the media. Where the nature of the investigation permits, the government should make clear what its needs are in a particular case as well as its willingness to respond to particular problems of the media.

(Is there any evidence this requirement has been observed? Any at all? -- Lex)

(d) Negotiations with the affected member of the news media shall be pursued in all cases in which a subpoena for the telephone toll records of any member of the news media is contemplated where the responsible Assistant Attorney General determines that such negotiations would not pose a substantial threat to the integrity of the investigation in connection with which the records are sought. Such determination shall be reviewed by the Attorney General when considering a subpoena authorized under paragraph (e) of this section.

(So this "monitoring" of journalists' phone-call records required the attorney general himself to sign off on it. Good to know. Did he? -- Lex)

(e) No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the news media without the express authorization of the Attorney General: Provided, That, if a member of the news media with whom negotiations are conducted under paragraph (c) of this section expressly agrees to provide the material sought, and if that material has already been published or broadcast, the United States Attorney or the responsible Assistant Attorney General, after having been personally satisfied that the requirements of this section have been met, may authorize issuance of the subpoena and shall thereafter submit to the Office of Public Affairs a report detailing the circumstances surrounding the issuance of the subpoena.

(f) In requesting the Attorney General's authorization for a subpoena to a member of the news media, the following principles will apply:

(1) In criminal cases, there should be reasonable grounds to believe, based on information obtained from nonmedia sources, that a crime has occurred, and that the information sought is essential to a successful investigation—particularly with reference to directly establishing guilt or innocence. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.

(It was, remember, the purported leaking by CIA employee Mary McCarthy that got all this started. And yet the CIA itself has said she was not the source of the leak. So why are journalists' records still being trolled? Could it be to seek "peripheral, nonessential or speculative information"? -- Lex)

(2) In civil cases there should be reasonable grounds, based on nonmedia sources, to believe that the information sought is essential to the successful completion of the litigation in a case of substantial inportance. The subpoena should not be used to obtain peripheral, nonessential, or speculative information.

(3) The government should have unsuccessfully attempted to obtain the information from alternative nonmedia sources.

(4) The use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.

(Has anyone involved in the purported "investigation" of leaks paid the slightest attention to this requirement? I'm aware of no evidence that they have. -- Lex)

(5) Even subpoena authorization requests for publicly disclosed information should be treated with care to avoid claims of harassment.

(Eh. If they want something we've published, they can go to the library or Nexis like everyone else. -- Lex)

(6) Subpoenas should, wherever possible, be directed at material information regarding a limited subject matter, should cover a reasonably limited period of time, and should avoid requiring production of a large volume of unpublished material. They should give reasonable and timely notice of the demand for documents.

(I infer from this paragraph that blanket hoovering of phone records is not permissible. -- Lex)

(g) In requesting the Attorney General's authorization for a subpoena for the telephone toll records of members of the news media, the following principles will apply:

(1) There should be reasonable ground to believe that a crime has been committed and that the information sought is essential to the successful investigation of that crime. The subpoena should be as narrowly drawn as possible; it should be directed at relevant information regarding a limited subject matter and should cover a reasonably limited time period. In addition, prior to seeking the Attorney General's authorization, the government should have pursued all reasonable alternative investigation steps as required by paragraph (b) of this section.

(Absent information of which I am unaware, the government appears to be 0-for-the preceding paragraph. -- Lex)

(2) When there have been negotiations with a member of the news media whose telephone toll records are to be subpoenaed, the member shall be given reasonable and timely notice of the determination of the Attorney General to authorize the subpoena and that the government intends to issue it.

(What negotiations? What subpoena? -- Lex)

(3) When the telephone toll records of a member of the news media have been subpoenaed without the notice provided for in paragraph (e)(2) of this section, notification of the subpoena shall be given the member of the news media as soon thereafter as it is determined that such notification will no longer pose a clear and substantial threat to the integrity of the investigation. In any event, such notification shall occur within 45 days of any return made pursuant to the subpoena, except that the responsible Assistant Attorney General may authorize delay of notification for no more than an additional 45 days.

(The government might be off the hook on this one, but only because one of its own people blew the whistle to ABC News. -- Lex)

(4) Any information obtained as a result of a subpoena issued for telephone toll records shall be closely held so as to prevent disclosure of the information to unauthorized persons or for improper purposes.

(h) No member of the Department shall subject a member of the news media to questioning as to any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General: Provided, however, That where exigent circumstances preclude prior approval, the requirements of paragraph (l) of this section shall be observed.

(i) A member of the Department shall secure the express authority of the Attorney General before a warrant for an arrest is sought, and whenever possible before an arrest not requiring a warrant, of a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media.

(j) No member of the Department shall present information to a grand jury seeking a bill of indictment, or file an information, against a member of the news media for any offense which he is suspected of having committed in the course of, or arising out of, the coverage or investigation of a news story, or while engaged in the performance of his official duties as a member of the news media, without the express authority of the Attorney General.

(k) In requesting the Attorney General's authorization to question, to arrest or to seek an arrest warrant for, or to present information to a grand jury seeking a bill of indictment or to file an information against, a member of the news media for an offense which he is suspected of having committed during the course of, or arising out of, the coverage or investigation of a news story, or committed while engaged in the performance of his official duties as a member of the news media, a member of the Department shall state all facts necessary for determination of the issues by the Attorney General. A copy of the request shall be sent to the Director of Public Affairs.

(l) When an arrest or questioning of a member of the news media is necessary before prior authorization of the Attorney General can be obtained, notification of the arrest or questioning, the circumstances demonstrating that an exception to the requirement of prior authorization existed, and a statement containing the information that would have been given in requesting prior authorization, shall be communicated immediately to the Attorney General and to the Director of Public Affairs.

(m) In light of the intent of this section to protect freedom of the press, news gathering functions, and news media sources, this policy statement does not apply to demands for purely commercial or financial information unrelated to the news gathering function.

(n) Failure to obtain the prior approval of the Attorney General may constitute grounds for an administrative reprimand or other appropriate disciplinary action. The principles set forth in this section are not intended to create or recognize any legally enforceable right in any person.

(Treat criminal journalists the same as noncriminal journalists criminal nonjournalists. But don't be using criminal charges to retaliate for reporting on illegal government activity. Remember, using government-secrecy rules to cover up a government crime is itself a crime. -- Lex)

[Order No. 916–80, 45 FR 76436, Nov. 19, 1980]

As I read this, I think the government has a serious problem on its hands. But I Am Not A Lawyer®, nor do I play one here on The Lex Files. So: Anyone got any legal citations suggesting that what the government is doing is, in fact, legal and consistent with existing rules and policy?

UPDATE: Via LizardBreath at Unfogged, we find more evidence that the administration might have stepped into a bucket of something warm and brown.

The FBI's National Security Letters -- the administrative (rather than judicial) subpoena-like documents mentioned above -- appear to be governed by Title 18, Section 2709, which says in pertinent part:

(b) Required Certification.— The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may— (1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and

(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States. (emphasis added -- Lex)

Is the administration willing to try to prove -- in court, if need be -- that whistleblowing leakers and the reporters who rely on them are engaging in "international terrorism or clandestine intelligence activities" and not "activities protected by the first amendment to the Constitution of the United States"?

I'm skeptical it would try and even more skeptical that it would win if it did.

The Hill magazine reports today that Republicans on the Senate Judiciary Committee have cut a deal with Chairman Arlen Specter, R-Pa., to hold hearings on the National Security Agency's warrantless-wiretapping program.

Specter had sought a requirement that the secret Foreign Intelligence Surveillance Court be asked to rule on the legality and constitutionality of the NSA program. But he now says he's dropping that requirement in favor of one that would allow the FISA court to rule only if a plaintiff with legal standing (that is, someone who claims to have suffered actual damage and isn't just asking for an opinion on the legality of the program) appeals to the court. As a practical matter, this change creates all sorts of roadblocks against the likelihood that the FISA court would ever get the chance to rule on the program.

So: If the administration is so confident that the program is legal and constitutional, why is it so reluctant to let the FISA court review it? Remember, one FISA judge already has quit in protest over this very program. Lawyer Glenn Greenwald asks the same question:

One would think that if [administration officials] really believed that they had the clear-cut legal justification for warrantless eavesdropping which they claim to have, they would be eager to have a court rule on this issue so that this unpleasant controversy -- with all of these mean-spirited and utterly baseless allegations of lawbreaking -- can finally be put to rest. And yet, time and again, they do precisely the opposite: they desperately invoke every available measure to prevent any judicial ruling as to the legality of their behavior.

Without the provision which was originally "demanded" by Sen. Specter, it is basically impossible for any plaintiff to ever challenge the legality of the NSA program. In very general terms, in order to have standing to bring such a suit, a plaintiff would have to prove that they have been specifically injured by the warrantless eavesdropping beyond the injuries of an average citizen. But the program is secret and there have been no investigations into it. As a result, nobody knows whose calls have been intercepted without warrants.

Therefore, any would-be plaintiff would be immediately trapped in the type of preposterous, bureaucratic Catch-22 in which American law specializes and which the Bush administration is eager to exploit -- namely, since nobody knows whose conversations have been eavesdropped on, nobody could ever make the showing necessary to maintain such a lawsuit, and since the administration claims that all such information is highly classified, the evidence necessary to make that showing can never be obtained.

Greenwald also makes this interesting point:

It is always worth noting that nothing in any of these bills immunizes the administration from being held accountable for its previous and ongoing violations of FISA. These bills simply render legal on a going forward basis warrantless eavesdropping. They do not make these programs retroactively legal.

Thus, absent any legal defense that a court will buy (and those offered so far by the program's defenders -- that the authorization to use force against 9/11 terrorists and/or the president's inherent warmaking powers make the program legal and constitutional, FISA itself and the Fourth Amendment be damned -- have appeared pretty weak), the administration remains guilty of multiple felony violations of the Foreign Intelligence Surveillance Act, subject to both criminal prosecution and civil liability.

In related news, BellSouth is denying that it has provided bulk customer phone records to the NSA. Interestingly, however, it has not asked USA Today to retract or correct its earlier report to the contrary.

Is it telling the truth? I don't know. It might well be telling the complete truth. Or it might be engaging in a little Clintonian parsing -- agreeing, for example, to let the NSA install its hardware and software on its system ... or not trying to look too hard for any covert attempts by NSA to do so. Again, I do not know. My point is that BellSouth's statement does not completely shut the door on its participation in the NSA program. The article notes, for example, that while the company denies having a contract with NSA, it doesn't answer the question of whether it has a contract with NSA's government parent, the Department of Defense.

More questions ....

UPDATE: In this Atlanta Journal-Constitution article (annoying free registration required), BellSouth's denial is a bit broader and more emphatic:

BellSouth spokesman Jeff Battcher said Monday that the company had, in the days since the report, conducted a review of the allegations. Ackerman, Battcher said, did not approve an NSA request to give out records.

"We can find no instances where Mr. [CEO Duane] Ackerman has been asked to give any information to the NSA," Battcher said. "He has not signed off on it because he's never been asked."

In fact, Battcher said the company was not aware it had received any requests from the NSA. "To the best of our knowledge, we cannot find where we've ever gotten a request," he said.

On the other hand, the story goes on to say, if the government didn't approach BellSouth, that might have been because it didn't need to:

BellSouth's rebuttal adds another twist to a still-developing story. But it does not mean the overall gist of USA Today's account — that a huge database was collected — is incorrect.

Indeed, BellSouth is a different kind of carrier than AT&T, Verizon and Qwest in a crucial way: BellSouth does not own an international or nationwide long-distance network. When a caller in, say, Atlanta dials someone in Seattle, the call travels mostly over non-BellSouth lines. To obtain a record of such a call, the NSA would not need BellSouth. They could get it from the owner of the network, such as AT&T.

Curiouser and curiouser ....

Via Dan Gillmor comes news that one of the world's biggest spammers has forced an anti-spam company to shut its doors.

The article is a little hazy on exactly how the spammer, a Russian, did it. But the head of the company insists that the level of effort and money required to defeat spammers at this level will have to come from governments working in concert, not from private industry.

The problem with that approach, Gillmor notes, is that it almost certainly will involve a significant loss of privacy. But if spammers are left to their own devices, then e-mail, the Internet's first killer app, becomes worthless.

There aren't any good choices here. Perhaps the Russians will take care of this guy the way they did one of his peers last year.

There've been some developments in the past day or two that I haven't been able to get to. Let me see if I can round them up now:

• The president issued a memo on May 5 directing the National Intelligence Director, John Negroponte, to permit telcos to lie without legal penalty if necessary to protect issues of national security. This memo might, or might not, explain why all three telcos accused by USA Today of turning records over to the National Security Agency have denied doing so (but have not asked the newspaper for a correction). (My very quick, I-am-not-a-lawyer read on this is that it could provide the companies with immunity from SEC or shareholder lawsuits related to the withholding of material information from investors, but not from lawsuits over possible violations of the Electronic Communications Security Act. Whether I'm right or wrong, I imagine it opens a big ol' can of legal and ethical worms.)
• The New York Times has reported that the National Security Agency sought records on long-distance calls, but not local ones, under the program first described in USA Today. If true, this report makes some of the telcos' denials more understandable (particularly BellSouth), although I still wonder why they took so long to respond in depth to a potentially brand-destroying news report.
• Justin Rood at TPMmuckraker.com gets hold of a Washington Post reporter to nail down a discrepancy between the Post's account of how many National Security Letters -- administrative subpoenas -- the FBI had obtained and how many the Justice Department was saying the FBI had obtained. The Post's number, roughly 30,000, was about three times as high as Justice's number. The difference, Rood was able to clarify, was that Justice's number "does not include NSLs requesting 'subscriber information.' That's the identity of an individual associated with a phone number, an email or an IP address. The Justice report also excludes requests for information on foreigners ... " It's not clear what proportion of the gap is made up by each group, or whether there's any overlap (probably, I would think). But that means the FBI was getting not only call records but also identifying info on thousands of people, all of whom, by law, had to be considered suspects in terrorism or espionage for the NSL to have been issued in the first place. Are there really that many bona fide terrorism/espionage suspects in the U.S., or is something else going on here? I have no idea.

Buried at the end of The New York Times' article on Time Inc.'s new managing editor was this woeful bit of news: Donald Barlett and James Steele have been laid off.

(Disclosure: I had the pleasure of hearing Jim Steele speak at the American Press Institute in 1990 but otherwise do not know either man.)

You probably won't recognize the names. But this would be worse than the San Francisco 49ers cutting Joe Montana in the prime of his career in a salary-cap move.

Barlett and Steele won two Pulitzer Prizes in 26 years at the Philadelphia Inquirer before moving to Time magazine in 1997. There, they won two National Magazine Awards. "America: What Went Wrong," their serial examination of flaws, and huge gifts to political contributors, buried within the 1986 tax-reform act, was so well-received that it was turned into a paperback book that spent an amazing six months atop The Times' paperback nonfiction bestsellers list. It did so not only because of its absolutely bulletproof reporting, backed by hundreds of interviews and thousands of documents, but also because of its clear, blunt language, much of which remains accurate today:

Worried that you are falling behind? Not living as well as you once did? Or expected to?

That you are going to have to work extra hours, or take a second job, just to stay even with your bills?

That the company you have worked for all these years may dump you for a younger person?

Or that the pension you have been promised may not be there when you retire?

Worried, if you are on the bottom rung of the economic ladder, that you will never see a middle-class lifestyle?

Or, if you are a single parent or part of a young working family, that you will never be able to save enough to buy a home?

That you are paying more than your fair share of taxes?

Worried that the people in Congress are taking care of themselves and their friends at your expense?

You are right. Keep worrying.

For those people in Washington who write the complex tangle of rules by which the economy operates have, over the last twenty years, rigged the game -- by design and default -- to favor the privileged, the powerful and the influential. At the expense of everyone else.

Shed no tears for Barlett and Steele; they'll land on their feet, I'm sure. But the kind of journalism they produced -- powerful, influential, galvanizing -- is difficult and expensive and, accordingly, becoming more and more rare. We're now in an era in which a business model that will support even routine journalism online, let alone the kind of grand-slam reporting that B&S produced, hasn't yet surfaced or been created.

And the American people have less opportunity, as a result, to learn about ways in which the system is being rigged.

BellSouth has asked USA Today for a retraction, saying no "contract" between it and NSA exists as the story claimed.

USA Today says: "Our sources have told us they think we got it right -- they know we've got it right. And they reiterated that what they told us is what showed up in the newspaper."

The issue of a contract, although a legitimate debate about a verifiable fact, is probably less important than the issue of what the contract was supposed to have been for. That said, what else did USA Today expect its sources to say?

Curiouser and curiouser ....

The nonpartisan Congressional Research Service has released a report on the legal issues raised by the NSA's efforts to obtain phone records from the telcos. A quick read suggests to me that it is not good news for either the government or the telcos, but I am not a lawyer. Take a look and tell me what you think.

For all the women who wonder why guys never ask for directions ....

Somehow I can't imagine Kurtwood Smith's Red Forman character from "That '70s Show" being anywhere near as deferential to a congressional committee as Gen. Michael Hayden was this week.

You can't buy this kind of publicity.

How could BellSouth (and, for that matter, Verizon and AT&T) 1) see that the NSA got their customers' phone-call records while 2) truthfully denying that they had turned them over to the NSA?

Engaging a "designated scapegoat" to do it for them, that's how.

And apparently, such "cutouts," go-betweens and intermediaries aren't limited to the telco business.

Book review published in today's N&R Ideas section:

Uh, oops -- no, it didn't run today. Should've checked the section before posting. D'oh! I guess it'll run next Sunday, but I'll check with Elma tomorrow and let you know.

Apparently, Attorney General Alberto Gonzalez went on national TV yesterday and made up an administration right to send journalists to prison for doing their jobs.

How very Soviet of him.

First of all, he needs to keep in mind that he might be keeping those same journalists company -- or going in their place. It's a felony to classify government information to cover up a crime. And given Gonzalez' previous role as White House counsel in enabling some of the administration's violations of U.S. and international law -- torture, secret European gulags and warrantless wiretapping, just to name three -- he might well face some exposure himself, as the lawyers say.

Second, as lawyer Glenn Greenwald points out in a righteous dopeslap of the whole notion, we somehow managed to drag ourselves through an entire century, one that included two "hot" world wars and a third world war that was no less a war for being cold, without throwing our journalists in prison. Part of the reason was that Congress, in its wisdom, declined to accept President Woodrow Wilson's invitation to include in the 1917 Espionage Act a provision that would jail journalists for publishing secret information. This is not, Greenwald writes, because Congress was in favor of disclosing secrets, but because it correctly believed that the alternative was even worse:

The debate regarding that amendment makes abundantly clear that it was rejected because the grave dangers from stifling an aggressive and free press -- even during war -- far outweigh the "benefits" of eliminating one of the sole checks on the Government's ability to control the flow of information.

Another reason, Greenwald says, is that there has been no need: The press historically has been perfectly happy to keep secrets that truly were vital to our nation's well-being, as opposed to merely evidence of government ineptitude and/or criminality.

Threatening the press isn't the mechanism an honest government uses to protect vital national secrets. No, that mechanism is the tool of desperate people with something to hide, for the administration cannot point to a single thing it considers a "vital secret" exposed by journalists that isn't also a fairly obvious violation of U.S. law, international law or both. More to the point, as Greenwald says, without journalists, we probably would still not know about these violations of law.

Finally, Greenwald wonders why the national media haven't made more of a stink about this. I don't know myself, but I can think of a few possibilities off the top of my head:

• Reporters aren't supposed to express opinions.
• More generally, advocating for journalism's own interests traditionally has been considered "unethical" for journalists, for reasons that have never been clear to me.
• Although individual journalists tend to lean left, their bosses and parent companies are, by and large, pretty conservative.

But there's a special irony at work in that silence. Journalists are frequently accused, falsely, of anti-Americanism. But remaining silent in the face of government attacks on our most vital freedoms -- and by "our" I mean mine and yours -- is the most anti-American thing we journalists can do right now.

If you're curious about the whole concept of citizen journalism and want to learn more, or if you already get the concept and are interested in joining with the N&R to report a story in your (geographic or interest) community, have I got good news for you.

Local Queen of Technology Sue Polinsky has agreed to co-host a little get-together with me at the N&R for people like you. We'll answer your questions, kick around story ideas and take the conversation in whatever direction you'd like. Date and time TBA; I'll post as soon as we have that nailed down.

UPDATE: We're on for 6:30 p.m. Tuesday, June 6, here at the News & Record, 200 E. Market St. You can park in our lot or in metered spaces on Market out front (they don't make you pay after 5 p.m.). If there's any particular topic or question you'd like to make sure we discuss, e-mail it to me. Also, if you're planning to attend, please try to let me know in advance so we can have enough refreshments on hand.

Hope to see you there!

"Achy Breaky Heart," Billy Ray Cyrus: there's proof! (Caution: large *.pdf file)

Yeah, he's running again:

Eleven years ago, I wrote a story about Gore in which I remarked that "what any sensible person does in anticipation of a sustained piece of oratory by Al Gore" is "order another cup of coffee -- black." So I can’t help but laugh when Gore arrives for the first of our conversations carrying a dainty white cup, walks silently over, waiterlike, and intones, "I understand, sir, you take it black."

The merits of that decision I leave to you to determine.