Balkinization  

Friday, October 26, 2007

Abuse of the Classification System

Marty Lederman

I've complained in the past about the unjustifiable secrecy involving executive branch memoranda on the lawfulness of interrogation techniques. (Short version: There's no justification for keeping secret such memos about what techniques are legal and which are not, except perhaps to the extent some redaction is necessary to the extent the memos reveal truly unknown CIA techniques. After all, we "reveal" the secrets to the enemy when we subject them to the "lawful" techniques.)

Equally troubling, perhaps, is the now-selective refusal of the Administration to share with Congress the documents underlying the NSA's terrorism-related surveillance since 2001. In particular, it is essential that Congress fully understand what legal representations were made to induce the telecom companies to violate the law, since the Administration is now insisting that Congress give such companies retroactive immunity for such wrongdoing. Immunity would only make sense, after all, if at a minimum it had been reasonable for the telecoms to rely on the Administration's legal justifications -- justifications that were, recall, so far beyond the pale that Jack Goldsmith immediately saw them as "a legal mess," repudiated them, and (along with dozens of other high-ranking DOJ political appointees) threatened to resign if the Administration continued to rely on them. Let's say, just for example, that the telecoms were told: "Well, yes, this would violate FISA and other statutes -- but the Commander in Chief has a constitutional authority to disregard such statutes, and to immunize your violation of them." Would reliance on that sort of a legal justification have been reasonable? Do we really want to immunize companies who were willing to violate statutes on such a basis? (Of course, it's possible they were provided a more credible argument, too -- the important point is that without seeing the underlying documents, Congress can't have any idea whether the companies' conduct was reasonable or not.)

In any event, the New York Times reports that the Administration has now made the underlying legal documents available for viewing by the Senate Intel Committee, and is extending a similar offer to the Senate Judiciary Committee. But get this:
Neither the House Intelligence Committee nor the House Judiciary Committee has been shown the documents. [White House spokesman Tony] Fratto noted that a bill pending in the House contained no provision for immunity from lawsuits and suggested that unless that changed, the House committees would not see the documents. "If the committees say they have no interest in legislating on the issue of liability protection, we have no reason to accommodate them," he said.
In other words, there is no longer any real or even pretextual justification for denying the documents to the House--except that the Administration wishes to preserve their secrecy for use as leverage to secure immunity from wrongdoing.

Think about that for a second: The Administration is willing to let telecom officials and technicians in on these state secrets -- as well as members of Congress who are open to the possibility of cutting a deal with the Administration -- but refuses to allow even the House Intelligence committee to know what the nation's operational "law" of surveillance has been for the past six years. And the only reason for such "selective" classification is to secure political advantage in a negotiation over possible immunizing legislation.

This demonstrates as well as anything that our classification (and privilege) policies and practices are significantly out of whack and in need of serious statutory repair. Yet this is one issue that will almost certainly never be the subject of legislation in our lifetimes, not only because Congress has traditionally wanted no part of classification reform, but also because the Executive branch (in administrations of both parties) has traditionally (and in my view wrongly) adhered to the view that Congress is constitutionally disabled from second-guessing the classification scheme that the Executive branch chooses to implement. And the threat of a veto on any such legislation makes the prospects of statutory reform almost unthinkable.

Comments:

Is it possible that the decision not to show the documents to the House committees is based on the traditional classification concept of "need to know" rather than on the application of political leverage? Usually, a person seeking to access classified information must demonstrate both clearance (a personal history demonstrating trustworthiness) and need to know (a demonstrable requirement to access the information). In this case, is it possible that Fratto is just saying that the Executive doesn't see a congressional need to know about old conduct unless the legislation specifically concerns old conduct? Maybe they're just correctly applying the provisions of the classification E.O.
I don't personally buy this argument, since I tend to think that Congress has a need to know how other branches of government perceive current law when amending that law. Also, I suppose there might be a question of whether or not an inherent executive secrecy power can legitimately be used to frustrate an inherent legislative investigative power. However, given the legal opinions previously advanced by this administration, is it possible that the "no need to know" argument is a plausible alternative explanation for this conduct?
 

"The documents at issue include orders signed by President Bush every 45 days to reauthorize the surveillance and legal opinions prepared by the Justice Department to justify the program." (cited NY Times article).

There is nothing in the Times article to suggest that any of the documents being offered to the committee were ever shown to Telecom executives, or that any other documents were shown to them. In fact, there is no evidence that any Telecom employees were involved in the program.

Evidence has been submitted that in San Francisco there is a room to which Telecom people do not now have access containing a device that the Telco did not install. Telco involvement ended when fiber optic cable was connected to the room. The equipment can be completely explained by the need to execute entirely legal FISA warrants or perform other monitoring permitted under FISA. Of course the same equipment could also be used to perform illegal operations, but the Telco would not know. This one piece of hard evidence suggest strongly (to someone who thinks about the technology instead of letting their ideology create imaginary conspiracy) that the Telco was unaware of the details of the program and needed no justification.

The state secret here may be that there were no justifications offered to the company because the company was not involved. The government would have as much reason to keep that secret as some 1950's imaginary technology where the NSA taps are managed by Ernestine (the "one ringy dingy" Lilly Tomlin character), which seems to be what the plaintiffs like to imagine.
 

"There's no justification for keeping secret such memos about what techniques are legal and which are not, except perhaps to the extent some redaction is necessary to the extent the memos reveal truly unknown CIA techniques. After all, we "reveal" the secrets to the enemy when we subject them to the "lawful" techniques.)"

Actually, I think there may be a rationale, although I don't know that I would consider it a justification. If detainees knew which techniques were lawful -- and therefore which techniques were not -- they would not have to fear that, whatever techniques were being used, something worse might be waiting in the wings. Publicly discussing what is, and is not, considered "torture" by this Administration's tortured logic would make the use of this fear impossible.

The problem with this "rationale" is that it's my general understanding that deliberately inducing fear of torture is, itself, recognized and barred as torture. (and I'd welcome some exploration of this issue from those more knowledgeable). So if this is, in fact, the Administration's underlying rationale, then the Administration is really confessing to the use of psychological torture.
 

The Higazy opinion, which redacted the section where the FBI threatened to have Higazy's family tortured, is another example of abuse of the classification system. Explained in more detail here:

http://torturelaw.org/blog_post.php?post=38
 

What I'm looking forward to is Jan. 2008, when we'll probably have a Democratic president, and, even more, Jan. 2010, when we'll probably have a Republican Congress, and Prof. Lederman suddenly discovers the vital importance of preserving the Constitutional prerogatives of the Executive, the need for confidentiality in Executive proceedings, the potential for abuse in unjustified legislative oversight which trenches on Executive functions, etc.
 

Prof. Lederman:

I've complained in the past about the unjustifiable secrecy involving executive branch memoranda on the lawfulness of interrogation techniques.

You assume (for purposes of your argument here) that the object of the "state secrets" assertions or classification is to actually protect us. It's not. It's to cover up maladministration lawlessness and malfeasance.

See, e.g., the primogenitor case, the Reynolds affair....

Once the aim of such is established (and you consider the nature of the players), the analysis is easier.

Cheers,
 

Prof. Lederman:

There's no justification for keeping secret such memos about what techniques are legal and which are not, except perhaps to the extent some redaction is necessary to the extent the memos reveal truly unknown CIA techniques. After all, we "reveal" the secrets to the enemy when we subject them to the "lawful" techniques.)

As I pointed out on the thread below, even if you go with the "utility" argument, one could easily argue that public presentation of what you will do (or at least claim you will do) might serve the purpose better than ambiguity ... and the "secrecy" invoked to maintain that (see, e.g., my "Dr. Strangelove" reference).

Of course, the "secrecy" argument here is totally bogus; but as I point out in my comment above, there's a reason for that....

Cheers,
 

dm:

In this case, is it possible that Fratto is just saying that the Executive doesn't see a congressional need to know about old conduct unless the legislation specifically concerns old conduct?

No. I think that there's case on point (but I don't have time to look it up) as to the permissible scope of Congressional interest in "fact-finding", and the maladministration doesn't get to specify (or limit) the "aim" or "purpose" (and thus the "need-to-know") of Congress in so doing. Congress has no requirement that it be pursuing any specific legislation in making inquiries of the executive.

Cheers,
 

Howard:

Evidence has been submitted that in San Francisco there is a room to which Telecom people do not now have access containing a device that the Telco did not install. Telco involvement ended when fiber optic cable was connected to the room. The equipment can be completely explained by the need to execute entirely legal FISA warrants or perform other monitoring permitted under FISA. Of course the same equipment could also be used to perform illegal operations, but the Telco would not know.

Of course, under CALEA, the telcos are required to have (and do have) equipment adequate to surveillance as permitted by FISA. Why the gummint would need their own equipment that has many OC48s carrying the bulk of all domestic intercarrier traffic coming in then becomes a more interesting question.

Cheers,
 

retr2327:

The problem with this "rationale" is that it's my general understanding that deliberately inducing fear of torture is, itself, recognized and barred as torture.

I pointed this "meta-issue" out also in the previous thread:

"But looking at the morality of it all, we need to step back and look at the bigger picture: Isn't the (implicit) threat of being willing to torture -- or at least projecting the image of such -- in exactly the same moral cabinet as is the implicit threat of death (even if not actually intended) that is produced in the course of "waterboarding"?"

Cheers,
 

sean:

What I'm looking forward to is Jan. 2008, when we'll probably have a Democratic president, and, even more, Jan. 2010, when we'll probably have a Republican Congress, and Prof. Lederman suddenly discovers the vital importance of preserving the Constitutional prerogatives of the Executive, the need for confidentiality in Executive proceedings, the potential for abuse in unjustified legislative oversight which trenches on Executive functions, etc.

Outside of your calendaric confusion(and political cluelessness), I think you're making some rather serious charges here. Do you have any support for your assertion that Prof. Lederman's interpretation of the law is "situational"? If so, out with it. If not, I think you should apologise.

Cheers,
 

Arne: If the FBI gets a criminal wiretap warrant they go to the Telcos, whose techs enter commands into the computerized switches to send a duplicate copy of specific data to an alternate location. The problem is that the public phone system is pretty public. Long before there were computer hackers, Captain Crunch hacked the phone system.

While some loanshark may not have the technical expertise to discover that his phone is being tapped, the foreign countries whose agents are the subject of a FISA warrant certainly have more technical resources.

It is also much simpler to put a mole in the phone company as an equipment tech than it is to get an agent into the CIA or NSA. Once inside, he may be able to dump memory and determine what monitoring has been programmed into any given switch.

In the 1980's the CIA had no data phone lines into or out of the building (except for one encrypted point to point link to a secondary building). The only way to make sure you cannot be hacked is not to be connected to receive commands from the public network. Well phone company switches are connected to everything and accept commands from everything. They do not measure up to the standards of thirty years ago, let alone the standards of today.

There is simply no way the NSA would not create a box such as has been described, no matter what it was used for. Installing national security wiretaps using Telco equipment would be like shipping a nuclear weapon through FedEx.
 

Howard:

Arne: If the FBI gets a criminal wiretap warrant they go to the Telcos, whose techs enter commands into the computerized switches to send a duplicate copy of specific data to an alternate location....

Howard, I'm well aware of what telco equipment (and CALEA equipment) does (it's my job).

... The problem is that the public phone system is pretty public. Long before there were computer hackers, Captain Crunch hacked the phone system.

I'm well aware of telephone hackers. I was around in the days of "blue boxes", "red boxes", and the much more capable "black boxes". Even built the digital guts of one (but never used it). I'm also aware that SS7 and quasi-associated signalling or other OOB signalling) put a stop to such "hacks".

... While some loanshark may not have the technical expertise to discover that his phone is being tapped, the foreign countries whose agents are the subject of a FISA warrant certainly have more technical resources.

Resources to do what?!?!?

It is also much simpler to put a mole in the phone company as an equipment tech than it is to get an agent into the CIA or NSA. Once inside, he may be able to dump memory and determine what monitoring has been programmed into any given switch.

This is theoretically possible (but I doubt you know how the telcos handle administration of warrants and access to the W/T equipment, or what procedural safeguards are made to ensure confidentiality of this type thing; equipment techs don't get access to these machines). But this possibility exists for domestic surveillances as well. I've never know it to be a problem....

In the 1980's the CIA had no data phone lines into or out of the building (except for one encrypted point to point link to a secondary building). The only way to make sure you cannot be hacked is not to be connected to receive commands from the public network....

That was then, this is now. They can both install private T1s or build VPNs (both of which have been or are used).

Well phone company switches are connected to everything and accept commands from everything....

Nonsense, but I don't really want to discuss the nitty-gritty here. If you really want to argue that CALEA and/or telcos are vulnerable, I'll take it up with you off-line (just leave me a message with your e-mail addy on my blog).

... They do not measure up to the standards of thirty years ago, let alone the standards of today.

Complete horse-patooties. Really. Don't try to BS me with your claims of telco knowlegde. Ain' gonna work.

There is simply no way the NSA would not create a box such as has been described, no matter what it was used for. Installing national security wiretaps using Telco equipment would be like shipping a nuclear weapon through FedEx.

You may be right, but not for the reasons you claim.

Cheers,
 

Equally troubling, perhaps, is the now-selective refusal of the Administration to share with Congress the documents underlying the NSA's terrorism-related surveillance since 2001. In particular, it is essential that Congress fully understand what legal representations were made to induce the telecom companies to violate the law, since the Administration is now insisting that Congress give such companies retroactive immunity for such wrongdoing.

To start, what makes you believe that the sought after documents are what the government told the telecoms? If the Congressional Dems want to know what the NSA told the telecoms, the intelligence committees can simply pose that question in closed session to the DNI.

However, and more importantly, what the government told the telecoms is utterly irrelevant. The argument here is that Congress has ratified the TSP and the telecoms should not be the subject to expensive litigation for assisting the TSP in the past.

This argument has nothing in the least to do with past legal opinions provided to the President concerning the TSP.

Congress is simply attempting to blackmail the President into disclosing privileged legal advice by holding hostage a vital national security program.

In return, it appears that the President has decided to bribe Congress into approving a vital national security program by allowing some of them to read the privileged legal advice.

What is good for the goose...
 

"Bart" DePalma:

The argument here is that Congress has ratified the TSP....

It may be some people's 'argument', but that's hardly a legal one ... nor a factually based one.

Try again.

Cheers,
 

"Bart" DePalma:

[at the risk of mulching the decaying carcass of an equine]

[T]he telecoms should not be the subject to expensive litigation....

... for violating a law that prescribed civil (and criminal) penalties for doing just that.

IC. I guess Congress just didn't mean it when they wrote those laws. That will be a very handy 'argument' for defence lawyers worldwide.

Cheers,
 

The catch-22 on the argument to not turn over without immunity is that the current Executive Order on classification PROHIBITS classifying information about criminal activity.

So if there is criminal activity - it can't be classified. If there's not - they don't need the immunity.

The classification issue is another issue that is no doubt causing Mukasey issues on the waterboarding. In addition to the fact that he will be putting the rightful stamp of "crime" with no Nuremberg defense on what was done, he would also be saying there cannot be valid classification of those illegal activities.
 

Arne: "CALEA equipment"

Up to this point I assumed that Telcos met CALEA requirements by adding programming to the 5ESS switch itself (or whatever replaces it). However, if there is explicit external wiretap equipment to support law enforcement requirements, then it would probably be similar in structure and function to the covert devices described in the SF litigation. The difference between it and the undisclosed NSA device is that the Telco has access to and in fact created the CALEA equipment under the FCC mandate, so through some procedure of warrants, permission, and authority they know who is being monitored. The only plausible purpose of creating an entirely separate device that accomplishes the same thing (although presumably limited to international switches connected to undersea fiber cables) is to have a device that the Telcos can't access and do not know about. Doesn't this strongly suggest to you that ATT had no knowledge of the existence of the TSP let alone an opinion about its legality.

Encryption, private lines, and virtual circuits existed in the 80's, and although they were perfectly adequate security they did not measure up to CIA standards. I did not mean to suggest that Telco security was not adequate in reality. However, in an era when the NSA was tapping the Soviet military defense network by trapping stray microwave radiation over the Pacific, US security agencies got really paranoid about their own internal communication. Ultimately, exclusive physical access to the devices and constant inspection of the paths was the only level of security they would tolerate. They did not trust anything that passed through a Telco.

The CIA used to say in the 80's, while they were deeply concerned about computer security, at least their machine room did not have people with machine guns standing at the door 24/7 like they had at the NSA machine room. It was that, and not any more reasonable view of security, to which I was referring when I suggested that Telco security did not "measure up to the standard" when I suppose I should have said "satisfy the level of paranoia" of security agencies even decades ago.

For most of us, a big magnet is good enough to destroy data on broken hard disks. In the days when a hard disk was the size of a washing machine, the security agencies would beat on a broken one with sledge hammers, then armed guards would take it to a furnace and watch until it was melted down. That is a standard that is hard to match.
 

This comment has been removed by the author.
 

A FYI:

Howard: If the FBI gets a criminal wiretap warrant they go to the Telcos, whose techs enter commands into the computerized switches to send a duplicate copy of specific data to an alternate location....

No. The order goes to the telco legal department and the legal department has people that do this. And these people have to be checked out (and they're supervised too). In larger telcos, this is the only thing they do.

Cheers,
 

Howard:

Arne: "CALEA equipment"

Up to this point I assumed that Telcos met CALEA requirements by adding programming to the 5ESS switch itself (or whatever replaces it)....


I've worked with Lucent 5ESSs, and they have a special page and a special privileged operator that can do (and see) the taps. Same for Nortel MTXs; "add surveillance" and "add cdc" are privileged commands for only "calea" type users. Also for Cisco. Starting to see a pattern?

But more specifically, telcos that don't want to provision every switch or want to distribute their CALEA operations across the country have some mediation devices in central and secure locations that do the actual provisioning on the remote switches using machine-to-machine communications (usually either secure or binary or both).

... However, if there is explicit external wiretap equipment to support law enforcement requirements, then it would probably be similar in structure and function to the covert devices described in the SF litigation....

No. But I won't go into it more.

... The difference between it and the undisclosed NSA device is that the Telco has access to and in fact created the CALEA equipment under the FCC mandate, so through some procedure of warrants, permission, and authority they know who is being monitored....

No.

The only plausible purpose of creating an entirely separate device that accomplishes the same thing (although presumably limited to international switches connected to undersea fiber cables) is to have a device that the Telcos can't access and do not know about.

No. It's actually an issue that arises in even standard CALEA practise: where do you tap And the answer to that depends on what you're looking for (and what's the penalty for missing some of it).

Doesn't this strongly suggest to you that ATT had no knowledge of the existence of the TSP let alone an opinion about its legality.

Your factul premises for your argument are wrong.

You might think that AT&T might ask, "oh, JOOC", what they wanted to do with all the information (not to mention having discussions as to which feeds ought to be sent in; that's something that NSA and AT&T would have had to work out WRT the best means to accomplish what they wanted to do).

Encryption, private lines, and virtual circuits existed in the 80's, and although they were perfectly adequate security they did not measure up to CIA standards. I did not mean to suggest that Telco security was not adequate in reality....

You suggested it's gotten worse. I maintain it's gotten better.

... However, in an era when the NSA was tapping the Soviet military defense network by trapping stray microwave radiation over the Pacific, US security agencies got really paranoid about their own internal communication....

I know. I know of some HW sent to NSA that went funky, and they couldn't return it for repair; nothing with any memory at all (even DRAM) leaves the premises. That's just "the rules".

... Ultimately, exclusive physical access to the devices and constant inspection of the paths was the only level of security they would tolerate. They did not trust anything that passed through a Telco.

Times have changed, times have changed.

The CIA used to say in the 80's, while they were deeply concerned about computer security, at least their machine room did not have people with machine guns standing at the door 24/7 like they had at the NSA machine room. It was that, and not any more reasonable view of security, to which I was referring when I suggested that Telco security did not "measure up to the standard" when I suppose I should have said "satisfy the level of paranoia" of security agencies even decades ago.

Yeah, they were paranoid. I once got a call from someone (private enterprise) asking for advice/consultation on security. I told them that the best security is physical: If you care most about whether someone can get into your machine, make sure no one can get in. No outside connectio, period. Of course, that generally means that it's completely useless to you too (if it's doing more than finding the next largest prime), and corporation and the gummint have realised that there is a compromise. Fortunately, various security techniques and measures have blossomed, so that we can have relatively open yet secure systems, and we can choose the tradeoff that works best for us. Technology no longer constrains us; we don't need dedicated DSPs to do the encryptation/decryptation any more.

For most of us, a big magnet is good enough to destroy data on broken hard disks. In the days when a hard disk was the size of a washing machine, the security agencies would beat on a broken one with sledge hammers, then armed guards would take it to a furnace and watch until it was melted down. That is a standard that is hard to match.

Covered above. I know the issues, and you needn't lecture me.

FWIW, the issues of surveillance in an IP based world are more in getting the right information than in the wrong people getting it. The "targets" can use encryptation as strong as the connections use to carry the snoop tap contents to the LEA.

Cheers,
 

I agree with Professor Lederman that there is no basis for the Administration's refusal to tell Congress what the legal justification/rationale is for its actions. (A particularly ridiculous example of this was when Goldsmith testified a few weeks ago and told the Senate Judiciary Committee that he couldn't even identify the constitutional provision underlying his objection to an intelligence program.

However, I don't think this has anything to do with our classification system. Members of Congress are deemed to be "cleared" to see information at any classification level (although in the House they are required to file a non-disclosure statement first) and, as far as I know, the Administration does not contend otherwise. The refusal to provide information to Congress is based on theories of executive privilege which would not be impacted by changes to the classification system (after all, the Administration routinely refuses to provide unclassified information to Congress).
 

Arne Langsetmo said...

"Bart" DePalma: The argument here is that Congress has ratified the TSP....

It may be some people's 'argument', but that's hardly a legal one ... nor a factually based one.


This is not an argument positing a legal defense for the telecoms. Rather, this is the actual policy argument being made in Congress.
 

Arne: "telcos that don't want to provision every switch or want to distribute their CALEA operations across the country have some mediation devices in central and secure locations that do the actual provisioning on the remote switches using machine-to-machine communications (usually either secure or binary or both)."

This is the main difference between a domestic CALEA wiretap on a US number using internal switches routing domestic traffic and a TSP wiretap where the target is overseas. A criminal's phone may be anywhere in the US network and setting a tap requires a knowlege of network topology, but traffic to Pakistan and the Middle East all routes through TAT cables and a few switches mostly in NJ. Intercepting domestic calls involves CALEA equipment, but intercepting overseas calls could use different technology. If you don't care about efficiency, it could be done by tapping into the TAT cable 12.5 miles offshore without ATT knowing a thing about it, though it is easier to do the same thing on dry land.

Presumably you have read about the SF submitted court documents more carefully than I. The documents themselves are under seal, but based on the information that has leaked out, do we know what type of traffic the fiber cables pulled to the room carried? Voice or data? Domestic or international? Because if the black box was not used in the TSP, then why is it Exhibit A in the litigation? If it was used in the TSP, then why would anyone suppose that ATT knew about what the box was doing inside the sealed room?
 

"Bart" DePalma:

["Bart"]: The argument here is that Congress has ratified the TSP....

[Arne]: It may be some people's 'argument', but that's hardly a legal one ... nor a factually based one.

This is not an argument positing a legal defense for the telecoms. Rather, this is the actual policy argument being made in Congress.


OIC. It's Republican (and Dubya-sycophant political posturing (and still based on a falwed factual remise, not in the least surprisingly). Why didn't you say so?

Cheers,
 

Howard:

[Arne]: "telcos that don't want to provision every switch or want to distribute their CALEA operations across the country have some mediation devices in central and secure locations that do the actual provisioning on the remote switches using machine-to-machine communications (usually either secure or binary or both)."

This is the main difference between a domestic CALEA wiretap on a US number using internal switches routing domestic traffic and a TSP wiretap where the target is overseas....


No (at least as far as I can discern from your objection here). My point was as to the implementation of the locus of provisioning for CALEA wiretaps. But it doesn't have to be done that way; it's matter of security and convenience.

... A criminal's phone may be anywhere in the US network and setting a tap requires a knowlege of network topology, ...

Not "topology". It just requires that all possible "tapping points" have CALEA capability and are administered appropriately. CALEA was phased in with larger telcos required to provide compliance first (and with known holes for CLECs and "Ma&Pa" rural telcos), and only later were the smaller operators required to comply as well. But now everyone has to, and they have to provide taps regardless of where the person is in the network (obviously of more importance for mobile telephony ad IP).

... but traffic to Pakistan and the Middle East all routes through TAT cables and a few switches mostly in NJ....

Not entirely true. Back in the 50's through the 70's (when Congress finally caught up with it), only three providers did all cable traffic, and that primarily from New Jersey. One of the abuses that the Church commission found was that these companies were handing over the cable data en masse to the NSA.

Nowadays, there's far more interest in voice and digital data, and this traffic takes many routes.

... Intercepting domestic calls involves CALEA equipment, but intercepting overseas calls could use different technology....

True (see, e.g. Menwith Hill), but I'm still not sure what you're trying to get at here. The point of such facilities as Menwith Hill (and tapping Soviet underseas cables) and the NSA RF listening posts is to vacuum up all kinds of traffic, with little regard for the niceties of U.S. laws, mostly because the traffic targeted is supposedly not covered by FISA; they're looking outward, not inward, and looking at gummint traffic, not personal phone calls.

... If you don't care about efficiency, it could be done by tapping into the TAT cable 12.5 miles offshore without ATT knowing a thing about it, though it is easier to do the same thing on dry land.

It os easier, perhaps, but FISA put a limit on what can be snooped domestically, near as I can tell because they figured that one of the paryties to something tapped domestically was likely to be a person in the U.S. They disapporved of the domestic promiscuous (i.e., warrantless) snooping of even "international" traffic, and most likely had in mind for 50 USC § 1801(f)(2) the cable intercepts they'd found.

Presumably you have read about the SF submitted court documents more carefully than I. The documents themselves are under seal, but based on the information that has leaked out, do we know what type of traffic the fiber cables pulled to the room carried?

I think I read one telco deposition (or statement or maybe interview), and they said that the traffic was likely the bulk of "intercarrier" digital traffic (and likely the bulk of this was purely domestic).

... Voice or data? ...

Data, most likely. Narus equipment (AFAIK) seems to be primarily IP-based, and less capable in the CS world.

... Domestic or international?...

Mostly domestic.

... Because if the black box was not used in the TSP, then why is it Exhibit A in the litigation?...

The lawsuit was over the AT&T intercept, not over the "TSP" (which the gummint won't even tell us the details of). Maybe this was part of the "TSP", but it doesn't matter.

... If it was used in the TSP, then why would anyone suppose that ATT knew about what the box was doing inside the sealed room?

They probably had discussions as to what trunks to feed in, in order to best get the information they were looking for.

Cheers,
 

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