Decrypt Laptop Or Go Directly to Jail

Phoenix333

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What's concerning about this is he's being compelled by the court to do something that works against his defense. Under Miranda, you don't have to tell the police or prosecution anything at all. That means you should not have to tell the police your password - whether that's in the form of actually typing it, or verbally providing it. This is a clear violation of Miranda as far as I'm concerned. He may be a dirtball, he may not, but it's a bad precedent to set.
 

lcpiper

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LOL, he says we should use the NSA for a kiddie porn case.

Wow dude, the NSA is there charged with National Security Missions. They are not there to work on a domestic kiddie porn case for fuck's sake. Get your head out of your ass.

They collect and process data collected from targets around the globe looking for threats and confirming suspicions of activity that could seriously get us all butt raped. You gotta get a sense of scale brother.
 

DarkStar_WNY

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creating CP should mean, locked up indefinitely

I doubt anyone here would disagree, but that isn't the issue of this story, and it's cases like this, where emotions run high, that result in bad law, which always come back to bite the country in the ass.

A perfect example of this would be the Patriot Act, while initially put in place to combat terrorism it has morphed into a monsterous devourer of Constitutional rights and been expanded so much that even those who opposed it initially could not have imagined how far, and fast, it would go.

Consider the FBI can not hand themselves a warrent which not only allows them to search whatever they want, and you are forbidden by law to even tell anyone, even your lawyer, about the warrant. This sounds more like the reasons we kicked out the British then what the founding fathers had in mind for us once the British were gone.
 

lcpiper

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People who hide data under encryption are usually doing it because they're afraid that w
or .... They know thieves steel shit and then all their personal data is out there to be used however someone else wants.
 

Semantics

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Pop question hot shot, you're going to jail for the rest of your life, would you rather be there for:
1. Contempt of court
2. Child porn

Yeah, I wouldn't decrypt those drives either...
Child porn and Child molesters don't tell to survive in general population, i think contempt of court is a good way to go. Extreme racism is cool but apparently some taboos have no supporters.
Under what law would "indefinite imprisonment without a trial." be allowed?

Sounds ridiculous.
You can be held in contempt of court in some states for about as long as if you're convicted guilty of the crime. The main thing is that the court has to have beyond reasonable doubt evidence is being withheld in a sort of "safe" and you're refusing to tell us the combination. Your refusal of corporation is what is contempt of court, you've been given a court order but you refuse to comply. It's not indefinite but it can be very long. The line is that they can't just fish for evidence they must have an idea of what it is and where it is located based on reasonably leads, it's just along the lines of a search warrant. It's not like a judge can use argumentum ad baculum to fish for evidence, remember a judge is suppose to be a mediator not a prosecutor.
 

Serpent

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Pop question hot shot, you're going to jail for the rest of your life, would you rather be there for:
1. Contempt of court
2. Child porn

Yeah, I wouldn't decrypt those drives either...

But, they did find child porn already. So he'll go for both or just one. Not that Contempt of Court really affects his status with Child porn looming over it.
 
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Pedophile....they should tell him that if he doesn't hand over the passwords he would to be tortured until he gives them up....
 

Spire3660

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I'm torn on this one, since in one way it's not really much different than requiring someone to open their door so police can search their home.

The problem is the court cannot prove he still remembers the key. How do you force the issue? Imprisoning a man on lack of evidence is not justice. The world is going to have to get used to the fact that encryption exists and there are some locks that cant be broken.
 

cybrsage

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They need to see the contents of the other drives so they can try to find the exploited children and save them. He is already doomed, it is now about saving children.
 

Spire3660

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This is not true. You can be held indefinitely if you are in contempt of court which is what would happen here. It's like hitting the pause button and going to the bathroom. He is a suspect in a crime and they need something from him he's unwilling to give up. So they pause the trial and lock him up till he gives up or someone finds something that would relieve his responsibility to provide the information the court requests.

What is done in practice and what is legal are two entirely separate entities. The 6th is supposed to prevent this from happening. The 6th was written PRECISELY to prevent this sort of thing
 

Gman1979

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Using your analogy, he is letting them in but not showing them where the secret hidden door leading to the stash of evidence. The burden of proof is on the accuser, not the accused.

Using your analogy, the moment you willingly open the door for them, they no longer need a warrant to trash your house looking for said compartment even if they lack probable cause. They use the technique called "knock and talk" to avoid having to get search warrants, knowing people will usually open the door for a law enforcement officer. Once the door is open, they can legally say you were acting suspicious, they smelled something they believed to be an illegal substance, or heard a cry for help from within the structure. And there's nothing you can do once you open the door.

They have enough evidence to convict the guy on charges that will keep him incarcerated long enough to give them plenty of time to decrypt the drives in question just as they did the first one. In fact, it's almost guaranteed he would actually serve a longer total amount of jail time if they convicted him with what they have now, then added more charges as they decrypted the additional evidence. They're not interested in getting the maximum amount of justice for the victims. They're only interested in setting a rights eroding legal precedent using a sick bastard that no one is going to be willing to stand up for because of his crimes. Ever wonder why they didn't have to compel members of Lulzsec or Anonymous to decrypt their hard drives via court order? Because people would have actually stood up to fight for their rights not to have to do so. They waited until they had a perp no one wants to defend or be associated with defending to get this precedent etched into stone.
 

jinhur

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5th amendment should apply in my opinion. Should not be forced to self incriminate.

i think that can apply once he complies. then it may be arguable but very hard depending on the circumstances.

i also beleive it is indefinite only because they have yet to define his term, kind of like an empty threat in my opinion, we do live in the US
 
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The question is, is this self-incrimination or is it concealing evidence to obstruct a federal investigation.

It's an interesting case.
 

Gman1979

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Legally speaking, Obstruction of Justice requires you to mislead, misdirect, or knowingly make false statements. Refusing to hand over evidence that could implicate you doesn't fall into those categories as long as you don't lie about its existence. If he had hidden the drives and lied about them existing, then that would be obstruction.When they collected the drives, the search warrant application would have been for the drives themselves or it would have been written up to cover all of his electronic equipment and other items pertaining to the suspected crime.
Data in itself is not something you can specifically request a search warrant for. You can subpoena electronic data but it is not a physical entity you can seize. You write up the search warrant application for the items containing the data instead.
He is under no legal compulsion to tell them how to access the drives according to the letter of the law. That's why law enforcement is using the judge to try to force him to do so, as current laws do not support what they are attempting to do. Else there would be no need for the judge to order him to hand over the keys.
It is also like playing Russian roulette for law enforcement. They picked the most vial, disgusting defendant they had in the hope people would be too afraid to challenge what they are trying to do out of fear of being associated with this sick pervert. What happens if they force him to give them the keys, they get more evidence they then try to use against other people, and someone actually gets the judges ruling overturned on constitutional grounds? All those sick bastards they went after using the ill gotten evidence get a shot at new trials and outright dismissals because the evidence in their cases would be deemed "fruit from the forbidden tree" in legal speak, meaning if that evidence was the only thing that brought them to the attention of law enforcement, then any evidence discovered afterwards gets thrown out as it would never have come to light without the ill gotten evidence providing the first link and probable cause.
 

Gman1979

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And also, they can not hold him indefinitely on a contempt charge. If that was true there would be several journalists still in jail for refusing to divulge sources for example. Another aspect to look at is this. We are all guaranteed equal protection under the law right? So when lawyers and journalists get charged with contempt of court and usually spend only a few days in jail and pay a fine, they would be violating his equal protection rights as well if they treated him much differently.
 

lcpiper

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The problem is the court cannot prove he still remembers the key. How do you force the issue? Imprisoning a man on lack of evidence is not justice. The world is going to have to get used to the fact that encryption exists and there are some locks that cant be broken.

He hasn't claimed he doesn't remember the key. He claimed he can't be forced to incriminate himself. So writer says many of these guys claim they can't remember the key.
Imprisoning a man on lack of evidence is not justice.
They have evidence, they want All the evidence they can get. There may be additional crimes, accomplices, or victims.

The world is going to have to get used to the fact that encryption exists and there are some locks that cant be broken.

There are no locks that can't be broken. There are locks that shouldn't be broken, and even some locks that should be broken. His rights protected him all the way up to the point that they found enough evidence that the judge could see a reasonable chance to convict, at that point his rights are suborned to those of the citizenry in who's service the Judge is charged.

And no new laws are being written here, it is just the never ending interpretation and reinterpretation of our current laws which is a good and healthy thing.

This year, perhaps this day, maybe this smuck will get over and maybe he won't. But in the long term, over the course of decades and even centuries, our laws will prove out as long as we guard them. But standing up and howling foul at every perceived opportunity is not the way to best serve our freedoms. Every one needs to look at each instance in a reasoned manner, not just draw a line and dumbly stand on one side yelling at those on the other. that's just dumb.
 

cyclone3d

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People who hide data under encryption are usually doing it because they're afriad that what they're doing is wrong and they don't want to get caught. So yeah, he's obviously got something to hide and so do most people who encrypt data. They're all pretty suspicious, if you ask me.

Or have financial information or other personal information on the drive, or work for a company that requires it.

Windows passwords can easily be reset as long as you know the admin account name and have bootable media with a reset utility on it.

If you don't know the account name, you can just slave it off another computer and see what the account folders are named. Most likely the account names have not changed since being set up, so the folder names are going to be exactly what the account names are.

It would take all of about 5 minutes with the computer to be able to access everything.

Without encryption you are totally screwed if a thief knows what they are doing.

With encryption, you generally will not be able to slave the drive to another computer since the encryption will generally lock its ability to decrypt to the hardware it was encrypted on unless it is an external drive with it's own encryption software.

Having boot media on the physical system may or may not allow you to see the folders, but if you reset the password, and self respecting encryption will auto kill the ability to access the encrypted data unless you change the password back to what it was.
 
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Question is, do you still have the ability to plead the fifth, when they have enough to evidence to convict.

The answer is yes you can plead the 5th on any charges that they don't have evidence you committed. In this case not only do they have the evidence to convict but they have evidence that the encrypted hard drives likely possess more evidence and thus the court can compel the passwords disclosure.

The term to focus on is "likely". They have an encrypted hard drive. They decrypted it and it contained child porn. Ownership has been established as the defendants therefore the court can conclude that the remaining drives the defendant owns likely possess more evidence. If they hadn't decrypted the one drive and found the child porn then they would not be able to establish the connection thus the judges original decision would stand.

Clear as mud?
 

Jagger100

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5th amendment should apply in my opinion. Should not be forced to self incriminate.

That's on the stand in a trial. However if you have a room with a file cabinet in it, and the police have a search warrant, you have to grant them access.

All this depends on what process they used to access those files.
 
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What is done in practice and what is legal are two entirely separate entities. The 6th is supposed to prevent this from happening. The 6th was written PRECISELY to prevent this sort of thing

Wrong. The 6th amendment was written to prevent the court from making false accusations without evidence and holding you indefinitely. It has been proven his hard drive contains child porn therefore he can be held in contempt for not providing his password. Had they not found the child porn the 6th and 5th amendments would apply.
 
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That's on the stand in a trial. However if you have a room with a file cabinet in it, and the police have a search warrant, you have to grant them access.

All this depends on what process they used to access those files.

That's not necessarily true either. You cannot be forced to turn over combination to a safe unless the prosecution can prove that there is likely evidence stored within. This is where the 5th amendment applies. A search warrant gives them the ability to crack the safe if they choose to but you cannot be forced to give up the combination without some sort of evidence.
 

damicatz

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I agree with the judge.

They have proof he is a scumbag, they have enough to convict and the judge sees this. Now they want the rest of the data so they can levy the punishment on how many counts of kiddie porn this scumbag is guilty of committing.

It's no longer a question of guilt or innocence, it's a question of just how bad he was.

They have proof he had a series of ones and zeros that offended other people.

They do not have proof he raped or molested a child.
 

Eva_Unit_0

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What's to stop him from just saying he forgot the key? It's not like anyone could prove he was lying.
 

Gman1979

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People who hide data under encryption are usually doing it because they're afriad that what they're doing is wrong and they don't want to get caught. So yeah, he's obviously got something to hide and so do most people who encrypt data. They're all pretty suspicious, if you ask me.

Then apparently you are unaware that Federal regulations require all medical records and data to be encrypted to comply with HIPAA regulations. There is a lawsuit happening right now against the IRS for seizing a doctor's entire patient record collection as part of a tax evasion investigation when it was absolutely not relevant to their investigation. IRS employees were caught rummaging through people's medical records for shits and giggles in this instance after forcing his IT provider to give them the encryption keys under threat of legal action.

If you work in the financial industry, you can be held liable for damages if customer data gets stolen and you took no measures to prevent it being misused, such as encrypting the data to protect it.

In the legal profession, if you fail to secure client records and a third party gains unauthorized access to them, you can lose your law license as well as your client no longer having attorney client privilege on that data thanks to a third party having access to the information. It's just like losing your expectation of privacy in a legal matter if you make incriminating statements within earshot of a 3rd party or recording device in a police car.

People who mine cryptocoin also keep their coin wallets encrypted to prevent malware from stealing the wallet.dat file. Does that automatically make them a criminal too?

Painting everyone who uses encryption as a criminal with something to hide is as ridiculous as saying people using locks on their doors only do so because they have something to hide.
 
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What's to stop him from just saying he forgot the key? It's not like anyone could prove he was lying.

The article states the courts typically hold those who conveniently forget as liers. When the item being forgotten looks like it was being used commonly.
 

CreepyUncleGoogle

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Gman1979 he was trolling us.

His user is "CreepyUncleGoogle".

Shhhhh! You're blowing my clever disguise!

Besides that, anyone who does encrypt really is evil and hiding something. Not organiations mind you -- they have to do it, but individual people encrypting stuff are probably hiding kiddie porn.
 

lcpiper

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And also, they can not hold him indefinitely on a contempt charge.

Well let's check this statement out.
I am pulling this info form this url and this is current Wisconsin State law as applies to this case.
https://docs.legis.wisconsin.gov/1983/statutes/statutes/785.pdf

First, there are different types of contempt charges and not all have the same punishment.
785
.
01 Definitions
. In, this chapter:
(1)"Contempt of court" means intentional:
(a) Misconduct in the presence of the court which interferes wither court proceeding or with the administration of',justice, or which impairs the respect due the court;
(b) Disobedience, resistance or obstruction of the authority, processor order of a court;
(c) Refusal as a witness to appear, be sworn or answer a question; or
(d) Refusal to produce a record, document or other object.

.(2) "Punitive sanction" means a sanction imposed to punish a past contempt of court for the purpose of upholding the authority of the court.
.(3) "Remedial sanction" means a sanction imposed for the purpose of 'terminating a continuing contempt of court


So it appears the Contempt charge in this case would be a Remedial Sanction for the purpose of encouraging the defended to produce the encryption key or the actual files as stated in the article.

Now the punishment for a Remedial Charge can be ....
785
.
04 Sanctions authorized
.
(1)
REMEDIAL SANCTIONS
A court may impose one or more of the following remedial sanctions;
(a) Payment of 'a sum of money sufficient to compensate a party for a loss or injury suffered by the party as the result of' a contempt of court.
(b) Imprisonment if the contempt of court is conduct is of a type included in S.. 785 01 (1) (b), (c) or (d).
The imprisonment may extend only so long as the person is committing the contempt of court,or 6 months, whichever is the shorter period.

.(c) A forfeiture not to exceed $2,000 for each day the contempt of court continues.
.(d) An order designed to ensure compliance with a prior order of the court.
.(e) A sanction other than the sanctions specified in pars. (a) to (d) if it expressly finds that those sanctions would be ineffectual to terminate a continuing contempt of court.

So under this if the judge charges as a Remedial Charge of contemp then 6 months is the longest he can be held.

But if the Judge rules the Contempt charge as Punative, then I call this small additional quote;
(2) SUMMARY PROCEDURE.
. The judge presiding in an action or proceeding may impose a punitive sanction upon a person who commits a contempt of court in the actual presence of the
court.
.The judge shall impose the punitive sanction immediately after the contempt of court and only for the purpose of preserving order in the court and protecting the authority and dignity of the court

(2) ' PUNITIVE SANCTION. (a) Nonsummary
A court after a finding of contempt of court in a nonsummary procedure under s..785.03 `
(1) (b), may impose for each separate contempt of court a fine of not more than $5,000 or imprisonment in the county jail for not more than one year or both

Now (literally) the 6 Million Dollar Question...... How long, and how much money does it come to if each file he is refusing to produce is a separate act of contempt?

Didn't they say something like 700,000 files?
 

lcpiper

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By Damicatz ....They have proof he had a series of ones and zeros that offended other people.

They do not have proof he raped or molested a child.

I am just unsure about your statement Damicatz, are you unaware that possession of Child Pornography is a Federal Crime all by itself, that each individual image can cost you 10 years in prison?

And in this case he isn't being charged with rape or molestation.
 

InorganicMatter

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This case is a lot more complicated than the simple 5th Amendment defense a lot of you are making out to be. Here, like the border patrol case a few years ago, they do have probable cause to believe the hard drives contain incriminating evidence, and even have a warrant to search. I don't know what the rule is when the 5th Amendment conflicts with habeas corpus for a valid detention. There might not be a rule yet, in which case this may be ripe for the US Supreme Court to step in.
 

Gman1979

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LOL, he says we should use the NSA for a kiddie porn case.

Wow dude, the NSA is there charged with National Security Missions. They are not there to work on a domestic kiddie porn case for fuck's sake. Get your head out of your ass.

They collect and process data collected from targets around the globe looking for threats and confirming suspicions of activity that could seriously get us all butt raped. You gotta get a sense of scale brother.

You are sadly misinformed about what the NSA does and how it operates. 99% of the information collected by the NSA is done on U.S. soil starting in the early 90s with a system named Carnivore. Every major telephone exchange in the U.S.A. has traffic collection equipment installed on location to facilitate electronic interception of phone and data traffic transiting the phone company networks. In the 90s these installations were located only at the incoming exchanges for transatlantic cables, but have been expanded to include domestic communications exchanges currently. Currently they are building a data warehouse in Utah to provide additional storage capability for the data resulting from interception of every single phone call, text message, voip communications, etc. The collected data sits in storage until a request for all the intercepts pertaining to a specific identifier (name, phone numbers, ip address, etc) is made by another government agency, at which point the 2nd agency then has to make an application similar to a warrant to actually make use of the data, since it was collected without a warrant in the first place.


The reason I suggested the NSA could help with the decryption is because they have a staggering amount of computing power and software specifically for decryption. When I did a summer internship with them while getting my Masters in Comp Science, almost all the work involved encryption, decryption, and related issues. But because of inter agency ego contests and a culture of competition instead of cooperation, they don't make these resources available to other agencies even though there are mandates in place since 9/11 to do so.
 

lcpiper

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This is no different then the guy suggesting we use the military to enforce the border when we already have a Government agency in place charged with the mission and funded to perform it.

While using the Military would be misusing that funding at the cost of their ability to perform their real mission.

Same thing here. The NSA has a purpose, and sifting through tons of domestic traffic to look for terrorist information is not a domestic mission, it's a foreign mission conducted on US soil.

I suppose that since you did some work there you are also more then aware and received your training on the executive orders that forbid intelligence analysis and collection on US Persons except where specifically authorized?

And I am not misinformed. I am experienced, credible, and still in the business although I have shifted from intelligence work to the IT supporting it.
 

lcpiper

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99% of the information collected by the NSA is done on U.S. soil

I would challenge this specifically. The NSA conducts not only it's own Intelligence Missions but is also the primary control mechanism for most of the Intelligence Activities conducted by our Military. And for the last 10 years with a war going on in multiple countries they have not been performing 99% of their work on Carnivore. Carnivore is a fraction, a side show, a computer that sifts through network traffic and identifies data for decryption. Carnivore didn't just show up and obviate or supplant what was previously the largest single Intelligence Collection activity in the world.

If it was the way you suggest, we wouldn't be blind to everything else in the world and we are not. Carnivore has nothing to do with the rest of the Intelligence collection disciplines that continue to do their thing. 99% is a gross overstatement and is not credible.
 

Gman1979

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This is no different then the guy suggesting we use the military to enforce the border when we already have a Government agency in place charged with the mission and funded to perform it.

While using the Military would be misusing that funding at the cost of their ability to perform their real mission.

Same thing here. The NSA has a purpose, and sifting through tons of domestic traffic to look for terrorist information is not a domestic mission, it's a foreign mission conducted on US soil.

I suppose that since you did some work there you are also more then aware and received your training on the executive orders that forbid intelligence analysis and collection on US Persons except where specifically authorized?

And I am not misinformed. I am experienced, credible, and still in the business although I have shifted from intelligence work to the IT supporting it.

I served proudly in our armed services and am fully aware of what the official restrictions are on certain organization to operate on U.S. soil. I have also witnessed first hand the C.I.A. conducting operations on U.S. soil in direct contradiction of those so called limits. The NSA is also actively involved in domestic spying on U.S. citizens. Working in the field gives you more exposure to what is actually going on than sitting behind an IT desk doing support.
While in Afghanistan, my unit routinely operated in conjunction with CIA operators from the time we dropped in to that country before the official invasion even began to the time we got rotated back stateside. If you have ever actually been in a warzone, you would know that 99% of your time is spent just waiting for things to happen, so people tend to get bored and talk a lot more than they would when you start to bond through the experience.
If you know so much, then I'm sure you know the real scandal in Benghazi was the CIA defied a DIRECT presidential order to protect the Ambassador and his TWO guards when the compound was attacked. The black site located in that compound contained two CIA fire teams and other personnel that could have repelled the assault. Instead they refused to assist in the situation and this is what the true cover up in that incident revolves around. But I'm sure you knew that already since you claim to be in the know? And that you know the CIA refused to help to keep secret the fact they were removing arms from Gaddafi's weapons stockpiles and shipping them to Turkey to be passed on to the Syrian rebels right? BTW that's also illegal under U.S. law and the international sanctions in place at the time. And of course you also know the F.E.S.T. teams were forbidden from securing the embassy compound for over a month so the CIA could vacate and cover its tracks right? Stick to your day job. This shit's way above your pay grade.
 

Gman1979

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I would challenge this specifically. The NSA conducts not only it's own Intelligence Missions but is also the primary control mechanism for most of the Intelligence Activities conducted by our Military. And for the last 10 years with a war going on in multiple countries they have not been performing 99% of their work on Carnivore. Carnivore is a fraction, a side show, a computer that sifts through network traffic and identifies data for decryption. Carnivore didn't just show up and obviate or supplant what was previously the largest single Intelligence Collection activity in the world.

If it was the way you suggest, we wouldn't be blind to everything else in the world and we are not. Carnivore has nothing to do with the rest of the Intelligence collection disciplines that continue to do their thing. 99% is a gross overstatement and is not credible.

Carnivore was replaced with a more advanced system in the early 2000s fyi. The NSA also does NOT provide most of the intelligence for the US military. The NSA is tasked specifically with signals interception and decryption. The DoD manages most of these functions for itself, with the NSA occasionally passing along information they come across monitoring civilian communications since the military intelligence mechanisms
are focused on monitoring warzone and foreign state originating intelligence. If the NSA operated as you seem to think it does, we would not have all these acronym agencies each having their own intelligence mechanisms. Have you guys already forgotten that your way of thinking was disproven during the congressional hearings after 9/11 when all these agencies got ripped for NOT sharing intelligence? How many reports have come out since then stating they're still not cooperating with each other on intelligence?
 
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