NSA's cyber overkill

The telecom companies also have lost their privacy cred. In a tacit admission that the proposed new program is problematic and possibly illegal, AT&T has sought written assurances from the administration that it will not be legally liable for participating in the program. The company was sued over its role in aiding Bush's electronic eavesdropping on Americans and, along with other telecoms, received retroactive immunity from Congress.

Earlier incarnations of the Einstein program observe predetermined signatures (specific patterns of network traffic), but Einstein 3 would look at the content of e-mails and other messages sent over government systems.

Moreover, while Einstein 1 and Einstein 2 passively observe information, Einstein 3 technology plans to use "active sensors." This is a tactic used by malware developers and is a popular feature of spyware that clogs up the Internet, slows down PCs and tips off hackers by emitting signals.

And most disturbingly, according to the Department of Homeland Security's 2008 "Privacy Impact Assessment," while earlier iterations of Einstein implemented signatures based on malicious computer codes, Einstein 3 could include signatures based on personally identifiable information. The privacy implications are great. Any citizen logging on to a ".gov" website would trigger this.

The IRS and other governmental agencies collect sensitive personal information for legitimate and limited purposes. However, strict confidentiality rules apply to that information. Although the Department of Homeland Security, which is managing the program, insists that the "main focus is to identify malicious code," we've heard such empty reassurances before.

Media reports indicate that government officials recently acknowledged during closed meetings of the House and Senate Intelligence and Judiciary committees that Americans' e-mails that were improperly gathered or read during Bush's warrantless wiretapping program -- even under the relaxed 2008 intelligence surveillance law -- were not just an "incidental byproduct." According to a former NSA analyst and two intelligence analysts interviewed by the New York Times, the e-mails could number in the millions.

Further, a government review of the Bush wiretapping program, released Friday, questioned the effectiveness of the surveillance efforts.