[sleight42]

The most painful part of this article to me is this one quote:

"The Justice Department did not return a call for comment."

Our own government is, once again, not holding itself accountable to the people or the fourth estate. Is it any wonder then that organizations like WikiLeaks exist that perform the function that the fourth estate is failing in?

(EDIT: Yes, I realize that WikiLeaks mission is somewhat different from the fourth estate but even so.)

[anigbrowl]

[0] He heard about this in 2005 (when the government was run by a different administration) but couldn't find anything. Eventually he filed a FOIA request. Silence, until spring of last year, when he was told there was some some information but it was redacted. So he filed an appeal, and it was granted. I suspect the lack of DoJ comment is because they're still trying to find out whether it was a fully formed program or just junior official's bid for career visibility - I suspect the latter, given the extremely basic level of information on these slides and lack of other documentation.

It's unclear whether the question left with the DoJ was about this 'hotwatch' project or about administrative subpoenas in general. An AS is a request for infor information issued by a government agency under statutory authority (ie Congress passed a law specifically saying an agency may issue one in an investigation and it must be complied with). About 300 government agencies are empowered to issue them altogether, although usually within a narrowly defined scope. The obvious constitutional problems with administrative subpoenas have been known for some time [1]. Misuse of such procedures has resulted in disciplinary proceedings at the FBI, among other agencies [2].

The basic thing to remember is that legally speaking warrants are not required for this kind of information gathering because it does not constitute a search [3] - as a legal term, this may not always mean what you think it means. for example, your phone conversations are generally private and require a warrant to listen to, but the numbers you call are not, and subpoena-ing that information from your phone service provider is not a search - at least, so said the Supreme Court in 1979 and neither it nor Congress have seen fit to decide otherwise since then [4]. This manner of gathering information is not actually new at all, as subpoena powers go back a lot farther than 1979 - that's just the last time their legality was debated in this context.

Some people think the options available to law enforcement should be much stronger, of course [5]. But in the meantime, relax - the sky is not in fact falling and things have not taken a sudden drastic turn for the worse.

0. http://paranoia.dubfire.net/2010/12/dojs-hotwatch-real-time-... 1. http://www.fas.org/sgp/crs/intel/RS22407.pdf 2. http://www.justice.gov/oig/testimony/t1004.pdf 3. http://cyb3rcrim3.blogspot.com/2010/05/administrative-subpoe... 4. http://cyb3rcrim3.blogspot.com/2007/09/fourth-amendment-priv... 5. http://docs.google.com/viewer?a=v&q=cache:0Eiic5n5QFcJ:w... < sorry, original is 404ed

[sleight42]

However, per [3], a subpoena is required which, unless I'm mistaken, does require a judge (and therefore due process).

Also, it would at least be a common courtesy for the government to acknowledge receipt of the request and that they intend to follow through. Instead, the DoJ did not respond, per Wired.

While I do greatly appreciate the detailed insight, I stand by my original point.

[anigbrowl]

Perhaps I was unclear. When I say an agency can issue a subpoena, I mean exactly that: rather than requesting one from a court, an agency can issue one under its own administrative authority - within the limited scope authorized by statute. The IRS can subpoena your bank statements, say, or the EPA could subpoena a suspected polluter's freight delivery data. Many agencies have limited powers to investigate and then prosecute or impose financial penalties, otherwise the court system would need to be considerably expanded. After going through any dispute/appeal process of the agency, then a matter can be heard in state or federal court as appropriate. It's good to get proper legal advice and do everything in writing from the beginning, or you can waste several years fighting the inevitable!

The 'preferred method' mentioned in the Hotwatch briefing does involve going to a judge too, but that's for the separate purpose of getting a secrecy order to avoid tipping off the suspect. The government did get a lot of new powers to investigate things under the PATRIOT act. Though some expired or were amended later, civil liberties were a low priority in October 2001 when people were still feeling panicked about terrorism.

I agree that the DoJ should call back and say 'we're looking into that, give us a few days' - but you know, people would find a reason to be paranoid about that too. Newspapers used to say 'had not called back by press time,' but with blogs that might mean anything, such as waiting only an hour (I consider Wired a responsible news source in this respect, but I still don't know how long they actually waited, and would sort of like to). Remember this Hotwatch powerpoint is 5 years old, and agencies are being told to tighten their budgets a great deal lately; press & public relations departments are often the first to see cuts because they're considered 'fluff' expenses compared to the core mission of a department.