Probable cause isn't dead yet. In fact, it's going to be resuscitated and strengthened after George W. Bush's foray into making the president a god.
Secret Spy Court Repeatedly Questions FBI Wiretap Network
By Ryan Singel June 11, 2008 | 3:13:54 PM
Does the FBI track cellphone users' physical movements without a warrant? Does the Bureau store recordings of innocent Americans caught up in wiretaps in a searchable database? Does the FBI's wiretap equipment store information like voicemail passwords and bank account numbers without legal authorization to do so?
That's what the nation's Foreign Intelligence Surveillance Court wanted to know, in a series of secret inquiries in 2005 and 2006 into the bureau's counterterrorism electronic surveillance efforts, revealed for the first time in newly declassified documents.
The inquires are the first publicly known questioning of the FBI's post-9/11 surveillance activities by the secret court, which has historically approved nearly every wiretap application submitted to it. ... The inquiries add to questions surrounding how the FBI has used the broad powers handed to it by Congress in the 2001 USA Patriot Act, including the FBI's admitted abuse of so-called National Security Letters to get stored telephone and financial records.
"I hope that this signals that the FISC, like many magistrate judges that handle law enforcement surveillance requests, is growing skeptical of the government's authority to conduct real-time cellphone tracking without probable cause," says Bankston.
Separately, the secret court questioned if the FBI was using pen register orders to collect digits dialed after a call is made, potentially including voicemail passwords and account numbers entered into bank-by-phone applications.
On August 7 2006, Foreign Intelligence Surveillance Court judge Colleen Kollar-Kotelly took the extraordinary step of ordering the FBI to report (.pdf) on how its sophisticated phone wiretapping system, known as Digital Collection System [DCS 3000], handled those extra digits and whether it stored them in a centralized data-mining depository known as Telephone Application.
The documents (.pdf) show that the majority of FBI offices surveyed internally were collecting that information without full-blown wiretap orders, especially in classified investigations. The documents also indicate that the information was being uploaded to the FBI's central repository for wiretap recordings and phone records, where analysts can data-mine the records for decades.
The government is supposed to "minimize" — that is anonymize or destroy — information gathered on Americans who aren't the targets of a wiretap, unless that information is crucial to an investigation.
The court wanted the FBI to explain what databases stored raw wiretaps (.pdf), how those recordings could be accessed, and by whom, as well as how minimization standards were implemented.