Spektre - Memory Effect
posted by Keito
Congress Disgracefully Approves the FISA Warrantless Spying Bill for Five More Years, Rejects All Privacy Amendments
posted by Keito
2012-12-29 11:33:54'Today, after just one day of rushed debate, the Senate shamefully voted on a five-year extension to the FISA Amendments Act, an unconsitutional law that openly allows for warrantless surveillance of Americans' overseas communications.
Incredibly, the Senate rejected all the proposed amendments that would have brought a modicum of transparency and oversight to the government's activities, despite previous refusals by the Executive branch to even estimate how many Americans are surveilled by this program or reveal critical secret court rulings interpreting it.
The common-sense amendments the Senate hastily rejected were modest in scope and written with the utmost deference to national security concerns. The Senate had months to consider them, but waited until four days before the law was to expire to bring them to the floor, and then used the contrived time crunch to stifle any chances of them passing.
Sen. Ron Wyden's amendment would not have taken away any of the NSA's powers, it just would have forced intelligence agencies to send Congress a report every year detailing how their surveillance was affecting ordinary Americans. Yet Congress voted to be purposely kept in the dark about a general estimate of how many Americans have been spied on.
You can watch Sen. Ron Wyden's entire, riveting floor speech on the privacy dangers and lack of oversight in the FISA Amendments Act here.
Sen. Jeff Merkley's amendment would have encouraged (not even forced!) the Attorney General to declassify portions of secret FISA court opinions—or just release summaries of them if they were too sensitive. This is something the administration itself promised to do three years ago. We know—because the government has admitted—that at least one of those opinions concluded the government had violated the Constitution. Yet Congress also voted to keep this potentially critical interpretation of a public law a secret.
Tellingly, Sen. Rand Paul's "Fourth Amendment Protection Act," which would have affirmed Americans' emails are protected from unwarranted search and seizures (just like physical letters and phone calls), was voted down by the Senate in a landslide.
The final vote for re-authorizing five more years of the FISA Amendments Act and secretive domestic spying was 73-23. Our thanks goes out to the twenty-three brave Senators who stood up for Americans' constitutional rights yesterday. If only we had more like them.
Of course, the fight against illegal and unconsitutional warrantless wiretapping is far from over. Since neither the President, who once campaigned on a return to rule of law on surveillance of Americans, nor the Congress, which has proven to be the enabler-in-chief of the Executive's overreach, have been willing to protect the privacy of Americans in their digital papers, all eyes should now turn to the Courts.
EFF was just in federal court in San Francisco two weeks ago, challenging the NSA's untargeted dragnet warrantless surveillance program. And the Supreme Court will soon rule whether the ACLU's constitutional challenge to the "targeted" portions of the FISA Amendments Act can go forward.
But make no mistake: this vote was nothing less than abdication by Congress of its role as watchdog over Executive power, and a failure of its independent obligation to protect the Bill of Rights. The FISA Amendments Act and the ongoing warrantless spying on Americans has been, and will continue to be, a blight on our nation and our Constitution.'
New Book Details the NSA’s Warrantless Wiretapping Program, As Government Moves to Avoid All Accountability in Court
posted by Keito
2012-09-30 12:39:23'Former New York Times reporter Kurt Eichenwald’s new book, published last week, provides yet more details about how the the NSA’s unconstitutional warrantless wiretapping program came about, and confirms that even top Bush Administration lawyers felt there was a “strong argument” that the program violated the law. “Officials might be slammed for violating the Fourth Amendment as a result of having listened in on calls to people inside the country and collecting so much personal data," Eichenwald wrote, and “in the future, others may question the legality” of their actions.
Yet even today, eleven years later, the government continues to claim that no court can judge the program's legality. In the next month, the government will argue—in EFF's case in federal district court and ACLU's case in the Supreme Court—that courts must dismiss the legal challenges without ever coming to a ruling on the merits.
Eichenwald's book, 500 Days: Secrets and Lies in the Terror Wars, describes how the NSA’s illegal program—what he calls "the most dramatic expansion of NSA's power and authority in the agency's 49 year history"— was devised just days after 9/11 to disregard requirements in the Foreign Intelligence Surveillance Act (FISA). Instead of getting individualized warrants to monitor Americans communicating overseas, the Bush administration unilaterally gave the NSA the power to sweep up millions of emails and phone calls into a database for analysis without court approval:
Connections between a suspect e-mail address and others—accounts that both sent and received messages there, whether in the United States or not—would be examined. At that point, a more detailed level of analysis would be applied creating something of a ripple effect. The suspect e-mail address would lead to a second, the second to the accounts it contacted.
In other words, the NSA was given the green light to warrantlessly spy of Americans communications on American soil—a power that was illegal under FISA. And the government—instead of finding probable cause for surveillance like the Constitution requires—started using a burden of proof akin to the game Six Degrees from Kevin Bacon.
Eichenwald’s reporting, focused on the immediate aftermath of 9/11, unfortunately overlooks the NSA’s longstanding desire to live “on the network” reflected in its presentations to the incoming Bush Administration officials in December, 2000. The idea that the NSA only came up with this idea after 9/11 isn’t really accurate.* But regardless, Eichenwald's reporting makes clear that Bush administration officials were terrified that this program would become public.
Of course, after several years, much of the NSA’s program did become public when the New York Times exposed its existence in their 2005 Pulitzer Prize winning investigation. Virtually every major news organization in the US subsequently reported on the NSA and its mass spying programs, which led to congressional investigations and a multitude of lawsuits—two which will be argued in the coming month.
In EFF’s lawsuit, in addition to a mountain of public information including many governmental admissions, the court will see evidence from AT&T whistleblower Mark Klein showing blueprints and photographs of the NSA’s secret room in AT&T’s facility in San Francisco. Three more NSA whistleblowers, including William Binney a former high ranking official involved with the program during its infancy, also submitted affidavits laying out how the NSA illegally spied on Americans in the aftermath of 9/11.
Despite this all of this, the government recently filed a motion in the Northern District of California invoking the controversial “state secrets” privilege. Essentially, the government argues that—even if all of the allegations are true—the case should be dismissed entirely because admitting or denying any fact would potentially endanger national security, even in the face of the government’s own craftily wordsmithed “denials” before Congress and elsewhere.
In the ACLU’s case going before the Supreme Court this term, a group of journalists, lawyers, and human rights activists has sued over surveillance conducted after the passage of the FISA Amendments Act (FAA). The FAA was passed in 2008 and formalized some of the admitted portions of NSA’s program, allowing emails and phone calls to and from from overseas to continue to be acquired without a warrant. The government only needs one general court order to target large groups of people—even entire countries—communicating to Americans for an entire year.
The plaintiffs, given that their professions, regularly talk to people who are almost certainly spied on. They argue that surveillance of them without warrants renders the statute unconstitutional. But the government contends the case must be dismissed on “standing” grounds because the plaintiffs can’t prove with certainty they have been surveilled, because, in a perfectly circular argument, the government won’t “admit” they have been surveilled, as if public admissions by the government is the only way to prove illegal wiretapping.
As the ACLU writes, “The government theory of standing would render real injuries nonjusticiable and insulate the government’s surveillance activities from meaningful judicial review.” The same can be said of the ‘state secrets’ privilege in EFF’s case. The government is contending they can use government secrecy as a sword to terminate judicial accountability. It doesn’t matter how much evidence is in the public domain, just by telling the Court that the information implicates “national security," they can wall off entire subject matters from judicial oversight, effectively hiding illegality, unconstitutionality along with embarrassing or overreaching acts by NSA spooks and others.
Eichenwald is just the latest in a long line of journalists to discuss and organize details about the NSA’s unconstitutional program. At this point the American people are well aware of the NSA’s actions – only the courts have been kept in the dark. And if the courts go along with blinding themselves, the government will have been given a license to violate the law and constitution long into the future.'
* Before 9/11, the NSA asserted” “The volumes and routing of data make finding and processing nuggets of intelligence information more difficult. To perform both its offensive and defensive mission, NSA must ‘live on the network.’” Opsahl Decl. Ex. 4 [Vol. I, p. 214] (National Security Agency, Transition 2001 (December 2000), at 31). Moreover, the NSA asserted that its “mission will demand a powerful, permanent presence on a global telecommunications network that will host the ‘protected’ communications of Americans as well as the targeted communications of adversaries.” Id. at 32 [Vol. I, p. 215]
EFF: The Secrecy Must Be Stopped... Congress Members Probe USTR on the Confidential TPP Negotiations
posted by Keito
2012-09-28 10:39:15'The Trans-Pacific Partnership agreement (TPP) threatens to regulate and restrict the Internet in the name of enforcing intellectual property (IP) rights around the world, yet the public and civil society continue to be denied meaningful access to the official text and are even kept in the dark about what proposals countries are pushing in this powerful multilateral trade agreement. With users having sent over 80,000 messages to Congress asking them to demand transparency in the TPP using EFF's Action Center, Congress members have been urged into action to uncover the secrecy.
On September 20th, Representative Zoe Lofgren sent an additional follow-up letter to USTR, which EFF applauds. According to the letter, Rep. Lofgren, who has long been a strong advocate for digital rights and was a vocal opponent of SOPA, met with Ambassador Ron Kirk directly to discuss the TPP and her concerns over the lack of transparency in the process. The letter, which mentions that Ambassador Kirk told her he welcomed feedback on how to address the concerns, asks USTR to: balance TPP IP enforcement provisions with user privileges; diversify the policy perspectives on their Industry Trade Advisory Committee for IP; and be more transparent in its TPP negotiations overall.
Rep. Lofgren stated in her press release for the letter:
“TPP's IP provisions must not undermine the free expression of Internet users, the ability to share and create content online, the free and open character of the Internet, or the freedom of digital service providers to innovate. Lack of transparency and overbroad IP enforcement requirements have held back other international trade agreements in the recent past – these same issues are now undermining the results [USTR seeks] to achieve with TPP."
They have yet to hear back with a response from the USTR.
This is not Congress' first attempt to unveil TPP. As we have reported, Senator Ron Wyden and Representative Darrell Issa are currently working on gathering signatures from their colleagues in Congress to ask the US Trade Representative Ron Kirk to reveal what they are seeking in the TPP's IP chapter, specifically in relation to provisions that would impact the Internet and access to pharmaceutical drugs. And in June of this year, 130 Members of the House of Representatives sent a detailed letter to the USTR asserting Congress' required role in the trade negotiations, making specific requests as to how they could make the process democratic and transparent while emphasizing the ways in which it fails to be neither of those things. Two months later, the USTR responded [PDF] in a letter that did not address any of the specific issues raised by Congress members.
The USTR claims that at the outset of the TPP negotiations in 2009, the participating countries signed a confidentiality agreement. In the June letter from 130 US Representatives, they explicitly asked for "a copy of the confidentiality agreement and an explanation as to what role USTR or other governments played in crafting it." In the USTR's response letter they completely ignored this request.
However, the model confidentiality agreement that served as a base for the TPP negotiators is a public document, available at a page on the New Zealand Ministry of Foreign Affairs and Trade website. The model agreement lays out the rules of confidentiality for signatory countries over TPP draft texts, proposals, communications, and other documents relating to the negotiations over the agreement. It is not clear, however, whether the model mirrors the exact agreement USTR signed, and USTR is likely subject to internal confidentiality policies in addition to the agreement.
While the confidentiality “model letter" itself is extremely vague, it does contain some interesting parts:
It states that the negotiating texts, government proposals, emails, and other related documents can be "provided" to government officials.
It states that documents can be accessed by "persons outside government who participate in that government's domestic consultation process and who have a need to review or be advised of the information in these documents."
It holds that "all participants plan to hold these documents in confidence for four years after entry into force of the Trans-Pacific Partnership Agreement, or if no agreement enters into force, for four years after the last round of negotiations."
It lays out the level of security needed to protect the confidentiality of the agreement, including that it may be kept in a "locked filing cabinet" or within a "secured building". Amusingly, the letter also assures that the documents "do not need to be stored in safes."
If in fact this letter parallels the provisions in the confidentiality agreement, these terms may be flexible enough to allow all government officials to have regular, easy access to the text. As of now however, elected members have not had access to view or comment on the text. Senator Wyden is a member of the Senate Finance Committee (which has jurisdiction over "reciprocal trade agreements; tariff and import quotas, and related matters thereto") and is Chair of its subcommittee on International Trade, Customs and Global Competitiveness. Neither he nor his staff, who have obtained proper security clearance, have been able to get access to material related to the TPP negotiations from the USTR.
Also unclear is how they make the determination as to whether "persons outside government" should be authorized to review the documents. Trade Advisory Committees (TACs) constitute 100's of individuals who are able to log in from their own computer to a platform to view and comment on the text of the official drafts of the agreement. If the language of the confidentiality agreement is as flexible as it is written in this model letter, it is questionable as to why all nations are bound to the level of confidentiality that is being enacted.
Ultimately, the USTR has an obligation to uphold the public interest. While they keep asserting that they are being as inclusive and transparent as possible in these negotiations, civil society and the public at large recognize that the process is far from embodying any principles of democratic rulemaking. We applaud Rep. Lofgren, Rep. Issa, and Senator Wyden for taking the lead as public representatives in standing up to demand an end to these secretive trade talks. Congress people need to know that breaking open the unnecessary confidentiality around the TPP is a priority, and that users are fed up with closed door tactics to restrict and regulate the Internet in the name of IP enforcement.
Even if you have already taken our Action Alert, please help us continue to send messages to our public representatives to make TPP transparency a political priority:'
Secret Ruling Against The NSA For Spying On Americans
posted by Keito
2012-09-11 16:04:53'The Electronic Frontier Foundation (EFF) is suing the Justice Department for details of last month's ruling by a secretive U.S. court that National Security Agency's domestic spying program violated the U.S. Constitution, Jon Brodkin of arstechnica reports.
The Foreign Intelligence Surveillance Court (FISC) found that "on at least one occasion" the NSA had violated the Fourth Amendment’s restriction against unreasonable searches and seizures.
The decision is classified “because of the sensitive intelligence matters" it concerns, according to a letter from Seb. Ron Wyden (D-OR) to Congress that was acquired by Wired.
The EFF wants the information because of its current lawsuit against the NSA (i.e. Jewel vs. NSA) that alleges the U.S. government operates an illegal mass domestic surveillance program. Three NSA whistleblowers—including William Binney—agreed to provide evidence that the NSA has been running a domestic spying program since 2001.
The kicker is that there is ample evidence that the NSA has gone above and beyond the powers granted through the 2008 FISA Amendment Act by actively spying on the electronic communications of American citizens within the U.S. and by coercing service providers to feed it any and all information it wants.
That is what FISC found and what the government does not want to admit.'