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.'
Federal Government Reportedly Vastly Expands Big Data Spying, Includes Innocent Citizens
posted by Keito
2012-12-29 11:29:22'After fierce internal controversy, the White House has reportedly authorized a vast expansion of spying capabilities, including the ability to investigate innocent citizens and mine previously separated databases.
“This is a sea change in the way that the government interacts with the general public,” said chief privacy officer of the Department of Homeland Security Mary Ellen Callahan, whose concerns were steamrolled, according to an investigatory report by The Wall Street Journal. One senior official called the expanded powers “breathtaking” in scope.
In part prompted by the frightening near success of the Christmas Day underwear bomber, President Obama demanded more sophisticated resources to prevent future terrorist attacks. “This was not a failure to collect or share intelligence,” said the president’s chief counterterrorism adviser, John Brennan, in January 2010. “It was a failure to connect and integrate and understand the intelligence we had.”
Prior to the updated guidelines, the National Counterterrorism Center (NCTC) maintained the Terrorist Identities Datamart Environment database (TIDE), a digital warehouse of half a million terror suspects and their friends and family. Under new rules, the NCTC now has access to many other government databases so long as it is “reasonably believed” to contain “terrorism information.”
The NCTC can now copy whole datastores on information, such as flight records, the names of Americans hosting foreign exchange students, and many others. The Federal Privacy Act of 1974 sought to stifle indiscriminate sharing of datasets on Americans, but the law contains a skyscraper-size loophole that exempts an agency from the rules if they notify the Federal Register. “All you have to do is publish a notice in the Federal Register and you can do whatever you want,” security consultant Robert Gellman told the Journal.
A supplementary blog post to the report notes a few key differences between an updated 2008 memo from the Bush Administration and the 2012 guidelines:
Dropping the requirement to remove innocent U.S. people: In 2008, the NCTC was to remove U.S. individuals “not reasonably believed to be terrorism information.” Now, they can keep tabs on U.S. persons for up to five years.
“Pattern-based queries”: Previously, analysts were prohibited from conducting certain sophisticated matching queries that “are not based on known terrorism datapoints,” explains the Journal. Now, its explicitly allowed.
Added oversight: 2012 guideliens added “periodic reviews” to review egregious violations and whether keeping some information “remains appropriate.”
Sharing information with foreign governments: 2012 added guidelines for data sharing with “any appropriate entity.”
Read the full report here
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]
Stallman urges Americans to support Senator Merkley's bill, the Protect America's Privacy Act
posted by Keito
2012-09-23 13:47:18'US citizens: Phone your senators to support Senator Merkley's bill, the Protect America's Privacy Act (S. 3515), which would limit warrantless wiretapping of Americans.
The Capitol Switchboard numbers are 202-224-3121, 888-818-6641 and 888-355-3588.
Here's info from CREDO Action about the bill:
While Sen. Merkley's bill does not repeal telecom immunity for illegal spying, restore privacy protection to library and bookstore records, end National Security Letter abuse, or roll back the worst abuses of the PATRIOT Act (all issues CREDO will continue to fight for, in addition to the full repeal of the PATRIOT Act), it does make three major changes to the warrantless wiretapping program that help us end some of the abuses of the Bush era.
First, it would put stronger protections in place to ensure that spy agencies are not using this program as an indirect way to target someone in the U.S.
Second, current law allows the government to collect information in anticipation of having its request to do so approved by a special type of top-secret court. Sen. Merkley's bill would ensure that if this court decides the procedures the government is using to collect information are improper, any information collected from Americans cannot be used in a legal proceeding.
Third, the bill would establish a new process for ensuring that if security agencies determine that information is being collected on Americans, that information cannot be accessed or searched until a proper warrant is obtained.'
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.'