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TechnoratiThe Obama Passport Snooping and the Unchecked Surveillance State
There are far too many unanswered questions to enable rational conclusions to be drawn regarding the parties responsible for the multiple breaches of Barack Obama's passport file and/or what motivated those breaches. Obsessive Clinton-haters who are instantaneously insinuating that Hillary is to blame are as grossly irresponsible as those blind Hillary supporters mindlessly dismissing the significance of what happened due to hostility towards Obama or out of some petty concern that it might help him politically. The potential that there was serious wrongdoing here is self-evident, and Time's Karen Tumulty raises all the right questions that require a genuine, independent and expedited investigation.
But there are some conclusions that one can immediately reach. This disturbing episode provides yet more vivid proof of how dangerous and misguided it is to continue to vest the Federal Government with the power to spy and collect data on the activities of its citizens, and, particularly, to do so without any oversight or real safeguards.
The domestic spying arm of the U.S. Government has grown steadily over the last several decades but has exploded since 9/11. Virtually all imaginable categories of invasive information about the private lives of innocent Americans -- from telephone calls and email correspondence to health and prescription records and even the most innocuous incidents -- are now collected and stored in digital dossiers by the U.S. Government and are accessible to untold numbers of public and private employees. This explosion in domestic surveillance has been accompanied by the patently foolish assumption that government officials are so well-intentioned, honorable and interested in using this data only for our own Good that we can trust them to compile and use it without external checks -- such as judicial warrants -- because the danger of abuse is so low.
As Julian Sanchez noted in a recent Los Angeles Times Op-Ed, incidents like the snooping into Obama's passport file are not the exception, and are not even merely the rule, but are the pervasive and inevitable outcome of allowing government officials to spy on Americans without real oversight:
Without meaningful oversight, presidents and intelligence agencies can -- and repeatedly have -- abused their surveillance authority to spy on political enemies and dissenters. . . .
Harvard University legal scholar William Stuntz has argued that the framers of the Constitution viewed the 4th Amendment as a mechanism for protecting political dissent. In England, agents of the crown had ransacked the homes of pamphleteers critical of the king -- something the founders resolved that the American system would not countenance.
After recounting the decades of systematic abuses of unchecked spying power by every President since Warren Harding -- abuses which were curbed only with the 1978 enactment of FISA's requirement of judicial warrants for eavesdropping -- Sanchez explained:
Your personal phone calls and e-mails may be of limited interest to the spymasters of Langley and Ft. Meade. But if you think an executive branch unchecked by courts won't turn its "national security" surveillance powers to political ends -- well, it would be a first.
I had my own relatively inconsequential but still creepy and disturbing experience with precisely this sort of abuse. In July, 2006, six months or so after I began blogging, scores of right-wing blogs were were in one of their trademark feeding frenzies, obsessively investigating my personal life, including where I spend my time. In the midst of that, a long-time, regular commenter on multiple right-wing blogs, "Baggi" -- who had long claimed to be a Customs and Immigration officer with the U.S. Government -- posted this comment at the widely-read right-wing blog, Wizbang, addressed to Wizbang's Kevin Aylward:
The "and more" was a nice, creepy touch. The information he posted was entirely accurate and unknowable in the absence of access to government passport or customs records. And there is nothing unusual about any of that. As Wired's Ryan Singel documented with multiple examples in writing about that "Baggi" incident: "That would hardly be the first time a government employee misused a surveillance database."
This happens all the time. It's an inevitable outcome of allowing government spying with no oversight. Just two weeks ago, the DOJ acknowledged again that its own FBI, for years, has been severely abusing the Patriot Act's "national security letters," which allow the FBI to obtain personal information on Americans with no warrants and no oversight. Extremely invasive information has been obtained far beyond what the law allows, regarding tens of thousands of American citizens accused of no wrongdoing whatsoever, and without there even being a pending criminal investigation.
And yet what is Congress doing about all of this? Until the House refused last week to pass the new Draconian FISA bill demanded by the White House, what they've been doing is vesting greater and ever more invasive spying powers in the Bush administration and subsequent administrations with no oversight whatsoever and no warrant requirements.
The "Protect America Act" passed and signed into law last August, as well as the Rockefeller/Cheney bill passed by the Senate in January, authorize inconceivably broad domestic spying powers -- to listen in on all of our international calls and read all of our international emails -- with no requirement to obtain a warrant and no oversight of any kind. Just listen to Sen. Russ Feingold's extremely succinct and accurate description of what the Senate FISA bill allows:
And in one of the most under-discussed stories of the year, The Wall St. Journal reported two weeks ago that the NSA -- unbeknownst even to most members of Congress and with no judicial oversight at all -- "now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records."Why would anyone trust the current administration and subsequent administrations -- not just their political officials but the thousands and thousands of permanent government and private employees -- to spy on Americans, and store and collect extremely invasive information about Americans' private lives, with no oversight or requirement to demonstrate probable cause to a court -- as the Founders required -- to believe that the citizen being spied on has actually done something wrong? Whatever the outcome of the Obama passport investigation is, whoever the parties responsible are and whatever their motives, shouldn't this rather conclusively demonstrate the complete folly, the serious dangers, of continuing to vest in the government powers to spy on and collect data about Americans with no oversight?
Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book "How Would a Patriot Act?," a critique of the Bush administration's use of executive power, released in May 2006. His second book, "A Tragic Legacy", examines the Bush legacy.
© Salon.com
37 Comments so far
Show AllI got to thinking about this, and wondered if it might be somebody trying to draw attention to people's overseas travels. I note that there is not a roster of attendees this year. Only a list of speakers. The 8th Herzliya Conference
Ronald S. Lauder's presence is noteworthy. I believe McCain has attended in the past. Then there's Bilderberger.
the super nasty way that the clinton campaign responded to those who dared to accuse them of being involved in this passport thing makes me think that they were involved.
We have lots of reasons to suspect that elections are orchestrated by the ruling oligarchy itself, for our satisfaction that democracy has been served. We'll be able to see this for certain when Obama's running mate is selected. Another crypto-neocon most likely.
He certainly won't take a page from the book of Bush Sr. or Bush Jr. They pick VP's so heinous that they become a sort of insurance against assassinations or impeachment. As bad as Bush Sr. became, the thought of President Quayle gave many people nightmares. As bad as King George II has been, who'd want President Cheney?
So if Obama were smart, he'd pick Nader or Kucinich as a VP. Make the ruling oligarchy quake in THEIR boots for a change. But he won't. Far from it -- it'll be a crypto-neocon or henpicked DLC corporate democrat (a Pelosi type) whose politics, ultimately, serve the interests of big money in a way basically indistinguishable from the other corporate party.
Obama will make cosmetic changes. He will go against the oligarchy to his dire peril. That is, unless he picks Senator Gravel as his running mate and participates in the National Initiative for Democracy.
Why is Obama complaining about his privacy being violated? This is ridiculous!
He voted for it! (Patriot Act II...Obama voted for it.)
He could have actually helped Russ Feingold to stop that legislation. But now we find out he's done so much more.
Will progressives wake up to the audacity of hype?
The flackery on Common Dreams over their savior; Obama Christ is really vile. And I can't stand Clinton either, but really. The brown-nosing and the dreary fanaticism. Obviously I would never contribute a dime to a Democratic Party mouth-piece. Which is what CD, and the rest of the sad sack Obamanics. has become now that they can smell power. A modium of journalism would be of some amusement at this point. Just ofr a bit of something diferent. I know, a quick name change: Common Democrats. That would be more honest wouldn't it?
Very interesting that anyone including the three candidates can be snooped on to get private information. On the other hand, nothing the Bush criminals have done can be found out , as it is either classified and extremely sensitive, or it has been all deleted or lost. We never even got an accurate report of what in H**L Bush and cronies were doing out on the ranch vacationing when there were reports from CIA or FBI of plans for destruction by terrorists using planes.
We badly need to find out every thing Obama has done since childhood and all of his family also. Then we have to wonder if 11,000 pages of Hillary`s life since probably she was married is enough information to satisfy us all. However, Bush and Cheney block every effort to get any information and the Inferior Court says that is just fine, and apparently Congress is too scared to push any action. This is just the sort of deal our founding fathers invisioned, I expect, when they wrote the documents that were to keep us from having the sort of country they endured under King George of England. Looks as if history is repeating itself again.
So why is any of this a surprise? For all we know, George Bush could be the grandson of a Nazi sympathizer and collaborater. Oops. How did we get that information?
RE: Brain wave reading
If this is true, then why do you stop at vague WTF's, leaving the reader at a state of aimless/helpless/vague unease or cognitive dissonance?
Let's hear about the frequency range of brain waves.
Let's hear about a shielding helmet people can wear to block the waves.
End of story.
No more scanning.
No more vague WTF's.
being a student of history , although a bit of a lazy one, I can not decide if Mr Obama is a fool or an extremely brave man.
Look at what the Neocons/ MIC have done in the recent past, to anyone who went against their plans...
I bet they are setting up and training the ''lone gunman ''to set lose, should his hands ever get close to the reins of power.
I really fear for Mr Obama.. /sigh
This is a page right out of the fascist playbook. This is not incompetence. The purpose of this affair is to let people know that everyone is fair game, and that their records are vulnerable. What a wonderful way to create fear. Get people afraid so they censor themselves.
I'd recommend Naomi Wolf's book "The End of America." She details the 10 steps that are characteristic of a fascist shift, intended to shut down an open society. This is one of the steps. Many others have been taken by Bush and his political cronies. Without checks and balances between the three branches of government, one can no longer reasonably call this a democracy. It's time to use the correct words to describe our situation, to face the reality that we face.
Actually, spying on passport information is Bushesq. George the first got the records of Bill Clinton.
In the Hoover FBI, political enemies' information was offered to every president and used as blackmail by J. Edgar to keep his position. As far as I know the only one to turn down any of the information was Truman who didn't care where a wife of a political opponent got her hair done. (He used more graphic terms.)
Who used what on whom might be hard to know. That is why collection of data must be controlled.
As much as I like Keith Obermann, I even heard him say last night something like - "If they are looking at passports of the presidential candidates, what about people like us?"
Come on Keith, this one is too easy. They don't even need telecoms to look into this. It's right at their fingertips in their administration. Just put a few low level (read low-life) contractors in there to get what info you want, then blame them (Abu Ghraib memories). Maybe these low-lifers report directly to rush or billo, who knows. They're all in it together.
The news has broken that Clinton and McCain's passport information has ALSO been "peeked at", but something is very strange about all this.
This administration has NEVER owned up to any actual screw-ups, and in fact has lied about them more times than anybody can count.
What actually happened and whose passport data was actually surveilled? From whom did the Washington Times get this information in the first place? Is somebody playing games?
We got a trillion dollar war going into its 6th. year, a currency that is losing value, a stock market whose chart looks like the ekg of a heart attact prospect, oil at over $105 a barrel, a President giving delusional speeches about everything from Iraq (mispronounced whitetrash style as "eye-rack", instead of "ear-rock" which is the correct pronunciation)to the economy is just humming along like things couldn't be better and what are our news media reporting on? Passportgate!
Wall Street and corporate boardrooms are howling with derisive laughter over our obsessive distraction with this non-story.
While our Senate was busy selling the People's privacy down the river Big (Corporate) Brother was violating their's?
What can I say, except, HA-HA-HA-HA-HA! Is this a Poetic Justice Department or what?
I can't believe how naive some people are. If you were trying to get some dirt by illegal means, wouldn't you cover yourself by stealing your own records? Any yet these idiot pundits fall for it. Really, I wouldn't be surprised one bit if McCain or Rove was behind this.
RE: - Without meaningful oversight, presidents and intelligence agencies can — and repeatedly have — abused their surveillance authority to spy on political enemies and dissenters.
RE: - Politicians getting dirt on their opponents is just one problem. And I am not talking about how, because of all the contracting out of government services, crooks can sell your information to other crooks for profit either.
Corporations have a vested interest in getting politicians to act in their interests - whether it be passing laws that benefit them, squashing laws that impede their ability to make a profit at the expense of workers or the environment or in giving them no bid contracts.
Whoever it was, was not going after people like us whose identities could be used to gain credit or cross borders - but big players for whom identity theft would be a bit more obvious. Though I would not put it past them to take out a credit card in Clinton's name and then visit porn cites and then leak this activity to the press days before an election (when there is not enough time to investigate it properly), this would be too amateurish for the pros.
My guess is that they are going after real dirt which would have a much longer shelf life. Modifying the content of a candidate's file is also not out of the question.
Whose to know if, whoever it was, was targeting all three candidates or decided to look through the other files as well so no one knew who their real target was.
RE: - How can it be that unauthorized people can look at sensitive files?
Because the US government contracts out services to the private sector which take a big cut for themselves and hire people for very little money to do the work. Some of these workers are probably supplementing their incomes others don't know who is supposed to have access and who isn't because they are improperly trained. Part of this privatization bubble is deskilling the workforce so any once worker is easily replaced by another.
RE: - If conservatives can't assassinate his character, they will spill his blood.
We must ask why the former method of silencing a person is deemed more effective than the latter.
Countess: I think that bit of "news" about Hillary and the 900 enemies might not be factually accurate. There were a lot of "urban myths" about the Clintons' assumption of power in the White House, most of it was hysterically false.
That being said, I think this violation of privacy is the tip of the iceberg. I have heard (unsubstantiated yet) reports that Hillary's and McCain's passport records were also violated. I have no idea where the depths of this could go, but it is proof of Condi Rice's incompetence in State Department, which is par for the course, knowing how well (dripping with sarcasm) she ran National Security prior to (and after) 9/11/01. Obama is a target, no doubt, and it lends more credibility to his candidacy that he is perceived to be viable enough to spy on.
"It's now being reported that all three candidates' passport files have been breached (that is, Obama, Clinton and McCain)." - Who knows what the hell happened.
Rice will say anything, make up anything. The NY Times will then deadpan report it. Pelosi will not insist on independent investigations here, only in Tibet.
How can it be that unauthorized people can look at sensitive files? Are the files not password protected? Do you not need a special login? Where did they get their IT staff? It is either a ludicrous level of incompetence or deliberate negligence set up to allow witch hunters and tricksters to do as they will.
Curiouser and curiouser. It's an Alice in Wonderland government we have. Too bad it's real.
Who is watching the surveillance people? Access to private information could and should be logged. If the IT system is wonderful enough to log terrabytes of information total regarding each individual in the US of I, surely it is wonderful enough to log who gets to read, copy and print it. Or else it is a broken system, and wonderfully open to Mossad, the Russian spies or any interested foreign power. It is a weapon that can be used against anyone and everyone, by anyone.
Oh, typical. It's all about Obambi. Poor Obambi! Vote for victimised Obambi! Actually Clinton and McCain also had their details rifled. And apparently this kind of thing happens regularly, though usually it is celebrities who find their private lives thus intruded into. Perhaps the real issue is: why are contract labour, doubtless poorly paid and without benefits, employed in such sensitive areas?
It's now being reported that all three candidates' passport files have been breached (that is, Obama, Clinton and McCain).
http://www.nytimes.com/2008/03/21/us/politics/21cnd-passport.html?ex=1363838400&en=61947282c546b181&ei...
It doesn't take eight unfettered years of illegal spying - or legal spying, for that matter - to "clear" every single person living in America of any potential and/or real terror-related anything.
Not a single "sleeper cell" or terrorist found; so-called "anthrax killer" still on the loose. Hell, you'd think they'd perp walk a drug kingpin or mafia boss every other year just to keep us on our toes.
Nope. Nothing. Yet the illegal spying continues and, if possible, is expanding.
Obviously, "our" government is illegally spying on us for reasons that have nothing to do with the imaginary GWOT.
But even Sen. Feingold doesn't seem to know the answer to the question: why?
And the other question, too: why, if once I'm illegally spied upon and found to be non-terror-related, why is my info then stored? Do governments routinely store things for which they claim they have no future use for?
Gay/straight hooker stings is what they've mastered after all this bullshit, is it? Yeesh...
I wish Ashcroft's mother had had an abortion years ago.
John Ashcroft requested the records of all American women who had had an abortion within certain dates. I can't remember how that turned out.
Oh, and by the way, one of the articles linked to the Slate article on Mindsweep is an article by Terry Atlas, in US News and World Report, if you're interested in reading instead of just popping off. But I guess they're just another of the tinfoil hat ministry...
A few years ago a S.F. Chronicle local reporter had his identity stolen. His columns turned to identity theft and guidelines re dealing with it.
When I heard the news of Obama's passport breach I thought that, perhaps he will start speaking about what he will do to turn back some of the blatant unitary power of the last few years. Glenn makes it clear that the systemic undoing of our privacy is neither new nor partisan. I am an Obama supporter and I too thought, 'I hope this helps him'. Truth is, it helps none of us.
Paul Bramscher, it's amazing how many colorful adjectives the uninformed, but smug, can come up with to make fun of the unknown, including my strong warning to citizens re the gov having thought reading tech. It's still secret, so don't expect me to be able to come up with a direct link. But for starts, try http://www.slate.com/id/2185599/
'Mindsweeper
Reading minds with 90 percent accuracy.
By William Saletan
Updated Friday, March 7, 2008, at 12:27 PM ET
Scientists read the visual content of a human mind with 92 percent accuracy. Method: 1) Two people were shown 1,750 pictures. 2) Brain scans showed the blood-flow patterns triggered in each person by each picture. 3) From the scans, scientists computed which pattern reflected which type of image. 4) The same people were shown 120 new pictures while being scanned. Results: The computer correctly predicted which new image was being viewed 92 percent of the time for one person, and 72 percent for the other. The probability of a correct prediction by guessing was less than 1 percent. When the number of new images increased from 120 to 1,000, the computer still got it right 82 percent of the time. What's new: Previous mind-reading used pictures the subjects had already seen; in this study, the pictures were new. What's next: 1) Quadriplegics issuing commands to computers via brain scan. 2) Watching or analyzing another person's dreams. 3) "A general brain-reading device that could reconstruct a picture of a person's visual experience at any moment." Related: Human Nature's take on the recently demonstrated ability to predict a person's intentions."
That just re technology that isn't as advanced as the gov is using.
I hope when this info becomes public, you are as colorful in apologizing as you are in condeming.
To get a gook look at where this is going, I recommend the film "The Lives of Others". Someone knows you are reading this.
Thought reading technology? I can't read my own thoughts half the time. Let's see some scientific citations there, before we dilute this well-written article with tinfoil haberdashery.
There is one really worrisome issue we must raise if all of this monitoring is true. Namely, how is it that Bush's e-mails went missing?
It would seem that either the government's ability to snoop is a gross exaggeration, a bluff.
OR
Intelligence is totally corrupted. Along with the Democratic Party for not being honest about the missing e-mails. They could come out to the American public and say, "The NSA, CIA, etc. are branches of the Republican Party. Yes, they're snooping all electronic traffic. Yes, they probably have Bush's e-mails. But no, they won't divulge the contents to the Legislative Branch."
'The domestic spying arm of the U.S. Government has grown steadily over the last several decades but has exploded since 9/11.'
I believe that the gov's line that 9/11 spurred a need for more intel on citizens is a manufactured myth.
The gov has had thought reading technology in use on citizens since at least 1994. In those days, the FBI was using the threat of domestic terrorism (this was pre Timothy McVeigh), since 9/11 it's been foreign terrorism.
The gov says we have to 're-think' the meaning of privacy, but they're not telling us citzens why.
How are they going to justify the great lapses in security that have occurred WHILE they had and were using this technology?
They partly blame 9/11 on the FBI's failure to be able to search the computer contents of one of the conspirators. I don't understand how the gov could be SO concerned with the privacy rights of this one individual and so unconcerned with the most basic human right of all Americans, freedom of thought.
This sounds so Clintonesque. Remember that Hillary Clinton when she was First Lady demanded that the FBI give her 900 files on their enemies which she went through to reap revenge. This is typical Bush-Clinton style politics.
Now for something REALLY SCARY
Clicking on the wrong URl can get your home aided by the FB!
FBI posts fake hyperlinks to snare child porn suspects
Posted by Declan McCullagh | 184 comments
Screen snapshot: This now-defunct site is reportedly where an FBI undercover agent posted hyperlinks purporting to be illegal videos. Clicking the links brought a raid from the Feds.
The FBI has recently adopted a novel investigative technique: posting hyperlinks that purport to be illegal videos of minors having sex, and then raiding the homes of anyone willing to click on them.
Undercover FBI agents used this hyperlink-enticement technique, which directed Internet users to a clandestine government server, to stage armed raids of homes in Pennsylvania, New York, and Nevada last year. The supposed video files actually were gibberish and contained no illegal images.
A CNET News.com review of legal documents shows that courts have approved of this technique, even though it raises questions about entrapment, the problems of identifying who's using an open wireless connection--and whether anyone who clicks on a FBI link that contains no child pornography should be automatically subject to a dawn raid by federal police.
Roderick Vosburgh, a doctoral student at Temple University who also taught history at La Salle University, was raided at home in February 2007 after he allegedly clicked on the FBI's hyperlink. Federal agents knocked on the door around 7 a.m., falsely claiming they wanted to talk to Vosburgh about his car. Once he opened the door, they threw him to the ground outside his house and handcuffed him.
AUDIO
News.com daily podcast
Reporter Declan McCullagh talks about the FBI's
hyperlinking tactic for getting child porn suspects.
Download mp3 (6.36MB)
Vosburgh was charged with violating federal law, which criminalizes "attempts" to download child pornography with up to 10 years in prison. Last November, a jury found Vosburgh guilty on that count, and a sentencing hearing is scheduled for April 22, at which point Vosburgh could face three to four years in prison.
The implications of the FBI's hyperlink-enticement technique are sweeping. Using the same logic and legal arguments, federal agents could send unsolicited e-mail messages to millions of Americans advertising illegal narcotics or child pornography--and raid people who click on the links embedded in the spam messages. The bureau could register the "unlawfulimages.com" domain name and prosecute intentional visitors. And so on.
"The evidence was insufficient for a reasonable jury to find that Mr. Vosburgh specifically intended to download child pornography, a necessary element of any 'attempt' offense," Vosburgh's attorney, Anna Durbin of Ardmore, Penn., wrote in a court filing that is attempting to overturn the jury verdict before her client is sentenced.
In a telephone conversation on Wednesday, Durbin added: "I thought it was scary that they could do this. This whole idea that the FBI can put a honeypot out there to attract people is kind of sad. It seems to me that they've brought a lot of cases without having to stoop to this."
Durbin did not want to be interviewed more extensively about the case because it is still pending; she's waiting for U.S. District Judge Timothy Savage to rule on her motion. Unless he agrees with her and overturns the jury verdict, Vosburgh--who has no prior criminal record--will be required to register as a sex offender for 15 years and will be effectively barred from continuing his work as a college instructor after his prison sentence ends.
How the hyperlink sting operation worked
The government's hyperlink sting operation worked like this: FBI Special Agent Wade Luders disseminated links to the supposedly illicit porn on an online discussion forum called Ranchi, which Luders believed was frequented by people who traded underage images. One server allegedly associated with the Ranchi forum was rangate.da.ru, which is now offline with a message attributing the closure to "non-ethical" activity.
In October 2006, Luders posted a number of links purporting to point to videos of child pornography, and then followed up with a second, supposedly correct link 40 minutes later. All the links pointed to, according to a bureau affidavit, a "covert FBI computer in San Jose, California, and the file located therein was encrypted and non-pornographic."
Excerpt from an FBI affidavit filed in the Nevada case showing how the hyperlink-sting was conducted.
Some of the links, including the supposedly correct one, included the hostname uploader.sytes.net. Sytes.net is hosted by no-ip.com, which provides dynamic domain name service to customers for $15 a year.
When anyone visited the upload.sytes.net site, the FBI recorded the Internet Protocol address of the remote computer. There's no evidence the referring site was recorded as well, meaning the FBI couldn't tell if the visitor found the links through Ranchi or another source such as an e-mail message.
With the logs revealing those allegedly incriminating IP addresses in hand, the FBI sent administrative subpoenas to the relevant Internet service provider to learn the identity of the person whose name was on the account--and then obtained search warrants for dawn raids.
Excerpt from FBI affidavit in Nevada case that shows visits to the hyperlink-sting site.
The search warrants authorized FBI agents to seize and remove any "computer-related" equipment, utility bills, telephone bills, any "addressed correspondence" sent through the U.S. mail, video gear, camera equipment, checkbooks, bank statements, and credit card statements.
While it might seem that merely clicking on a link wouldn't be enough to justify a search warrant, courts have ruled otherwise. On March 6, U.S. District Judge Roger Hunt in Nevada agreed with a magistrate judge that the hyperlink-sting operation constituted sufficient probable cause to justify giving the FBI its search warrant.
The defendant in that case, Travis Carter, suggested that any of the neighbors could be using his wireless network. (The public defender's office even sent out an investigator who confirmed that dozens of homes were within Wi-Fi range.)
But the magistrate judge ruled that even the possibilities of spoofing or other users of an open Wi-Fi connection "would not have negated a substantial basis for concluding that there was probable cause to believe that evidence of child pornography would be found on the premises to be searched." Translated, that means the search warrant was valid.
Entrapment: Not a defense
So far, at least, attorneys defending the hyperlink-sting cases do not appear to have raised unlawful entrapment as a defense.
"Claims of entrapment have been made in similar cases, but usually do not get very far," said Stephen Saltzburg, a professor at George Washington University's law school. "The individuals who chose to log into the FBI sites appear to have had no pressure put upon them by the government...It is doubtful that the individuals could claim the government made them do something they weren't predisposed to doing or that the government overreached."
The outcome may be different, Saltzburg said, if the FBI had tried to encourage people to click on the link by including misleading statements suggesting the videos were legal or approved.
In the case of Vosburgh, the college instructor who lived in Media, Penn., his attorney has been left to argue that "no reasonable jury could have found beyond a reasonable doubt that Mr. Vosburgh himself attempted to download child pornography."
Vosburgh faced four charges: clicking on an illegal hyperlink; knowingly destroying a hard drive and a thumb drive by physically damaging them when the FBI agents were outside his home; obstructing an FBI investigation by destroying the devices; and possessing a hard drive with two grainy thumbnail images of naked female minors (the youths weren't having sex, but their genitalia were visible).
The judge threw out the third count and the jury found him not guilty of the second. But Vosburgh was convicted of the first and last counts, which included clicking on the FBI's illicit hyperlink.
In a legal brief filed on March 6, his attorney argued that the two thumbnails were in a hidden "thumbs.db" file automatically created by the Windows operating system. The brief said that there was no evidence that Vosburgh ever viewed the full-size images--which were not found on his hard drive--and the thumbnails could have been created by receiving an e-mail message, copying files, or innocently visiting a Web page.
From the FBI's perspective, clicking on the illicit hyperlink and having a thumbs.db file with illicit images are both serious crimes. Federal prosecutors wrote: "The jury found that defendant knew exactly what he was trying to obtain when he downloaded the hyperlinks on Agent Luder's Ranchi post. At trial, defendant suggested unrealistic, unlikely explanations as to how his computer was linked to the post. The jury saw through the smokes (sic) and mirrors, as should the court."
And, as for the two thumbnail images, prosecutors argued (note that under federal child pornography law, the definition of "sexually explicit conduct" does not require that sex acts take place):
The first image depicted a pre-pubescent girl, fully naked, standing on one leg while the other leg was fully extended leaning on a desk, exposing her genitalia... The other image depicted four pre-pubescent fully naked girls sitting on a couch, with their legs spread apart, exposing their genitalia. Viewing this image, the jury could reasonably conclude that the four girls were posed in unnatural positions and the focal point of this picture was on their genitalia.... And, based on all this evidence, the jury found that the images were of minors engaged in sexually explicit conduct, and certainly did not require a crystal clear resolution that defendant now claims was necessary, yet lacking.
Prosecutors also highlighted the fact that Vosburgh visited the "loli-chan" site, which has in the past featured a teenage Webcam girl holding up provocative signs (but without any nudity).
Civil libertarians warn that anyone who clicks on a hyperlink advertising something illegal--perhaps found while Web browsing or received through e-mail--could face the same fate.
When asked what would stop the FBI from expanding its hyperlink sting operation, Harvey Silverglate, a longtime criminal defense lawyer in Cambridge, Mass. and author of a forthcoming book on the Justice Department, replied: "Because the courts have been so narrow in their definition of 'entrapment,' and so expansive in their definition of 'probable cause,' there is nothing to stop the Feds from acting as you posit."
If conservatives can't assassinate his character, they will spill his blood. That is unless he introduces the referendum.
JH: "...but it is proof of Condi Rice's incompetence in State Department,..."
"Incompetence"? No. Everything Bu$hCo has done has been intentional. When are some of you going to wake up and stop pussy-footing around the issues?
What is truly scary about this is the combination of unchecked surveillance and incompetence. The only thing more frightening than a fascist is an incompetent fascist.