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  • 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]

    https://www.eff.org/deeplinks/2012/09/new-book-details-nsa-warrantless-wiretapping-program-government-moves-avoid-all
  • 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.'

    http://www.businessinsider.com/nsa-spying-4th-amendment-2012-8
  • FBI launches $1 billion face recognition project

    posted by Keito
    2012-09-11 15:22:09
    'The Next Generation Identification programme will include a nationwide database of criminal faces and other biometrics

    "FACE recognition is 'now'," declared Alessandro Acquisti of Carnegie Mellon University in Pittsburgh in a testimony before the US Senate in July.

    It certainly seems that way. As part of an update to the national fingerprint database, the FBI has begun rolling out facial recognition to identify criminals.

    It will form part of the bureau's long-awaited, $1 billion Next Generation Identification (NGI) programme, which will also add biometrics such as iris scans, DNA analysis and voice identification to the toolkit. A handful of states began uploading their photos as part of a pilot programme this February and it is expected to be rolled out nationwide by 2014. In addition to scanning mugshots for a match, FBI officials have indicated that they are keen to track a suspect by picking out their face in a crowd.

    Another application would be the reverse: images of a person of interest from security cameras or public photos uploaded onto the internet could be compared against a national repository of images held by the FBI. An algorithm would perform an automatic search and return a list of potential hits for an officer to sort through and use as possible leads for an investigation.

    Ideally, such technological advancements will allow law enforcement to identify criminals more accurately and lead to quicker arrests. But privacy advocates are worried by the broad scope of the FBI's plans. They are concerned that people with no criminal record who are caught on camera alongside a person of interest could end up in a federal database, or be subject to unwarranted surveillance.

    The FBI's Jerome Pender told the Senate in July that the searchable photo database used in the pilot studies only includes mugshots of known criminals. But it's unclear from the NGI's privacy statement whether that will remain the case once the entire system is up and running or if civilian photos might be added, says attorney Jennifer Lynch of the Electronic Frontier Foundation. The FBI was unable to answer New Scientist's questions before the magazine went to press.

    The FBI hasn't shared details of the algorithms it is using, but its technology could be very accurate if applied to photographs taken in controlled situations such as passport photos or police shots.

    Tests in 2010 showed that the best algorithms can pick someone out in a pool of 1.6 million mugshots 92 per cent of the time. It's possible to match a mugshot to a photo of a person who isn't looking at the camera too. Algorithms such as one developed by Marios Savvides's lab at Carnegie Mellon can analyse features of a front and side view set of mugshots, create a 3D model of the face, rotate it as much as 70 degrees to match the angle of the face in the photo, and then match the new 2D image with a fairly high degree of accuracy. The most difficult faces to match are those in low light. Merging photos from visible and infrared spectra can sharpen these images, but infrared cameras are still very expensive.

    Of course, it is easier to match up posed images and the FBI has already partnered with issuers of state drivers' licences for photo comparison. Jay Stanley of the American Civil Liberties Union urges caution: "Once you start plugging this into the FBI database, it becomes tantamount to a national photographic database."'
  • Internet enemy number one, Lamar Smith, is sponsoring the FISA FAA renewal and pushing it to a vote in the House on Wednesday. This is the bill that retroactively legalized NSA warrantless wiretapping. We need to stop this now.

    posted by Keito
    2012-09-11 15:03:19
    'It’s back. On Thursday the House of Representatives is scheduled to vote on a five-year reauthorization of the FISA Amendments Act (FAA), the 2008 law that legalized the Bush administration’s warrantless wiretapping program and more. It permits the government to get year-long orders from the secret Foreign Intelligence Surveillance Act (FISA) court to conduct dragnet surveillance of Americans’ international communications—including phone calls, emails, and internet records—for the purpose of collecting foreign intelligence. The orders need not specify who is going to be spied on or even allege that the targets did anything wrong. The only guarantees that the FAA gives are that no specific American will be targeted for wiretapping and that some (classified) rules about the use of intercepted information will be followed.

    After four years, you’d hope that some basic information or parameters of such a massive spying program would be divulged to the public, or at least your rank-and-file member of Congress, but they haven’t. Only a small handful of members have either personally attended classified briefings or have staff with high enough clearances to attend for them. Sen. Ron Wyden—who has been on the Senate Intelligence Committee for years—has even been stonewalled by the Obama administration for a year and a half in his attempts to learn basic information about the program, such as the number of Americans who have had their communications intercepted under the FAA.

    Yet the House ambles on, ready to rubber stamp another five years of expansive surveillance that can pick up American communications without meaningful judicial oversight and without probable cause or any finding of wrongdoing. Instead of blind faith in the executive branch, every member of the House should demand that the administration publicly disclose the following before proceeding with reauthorization:
    • Copies of FISA court opinions interpreting our Fourth Amendment rights under the FAA, with redactions to protect sensitive information (the Department of Justice can write summaries of law if necessary);
    • A rough estimate of how many Americans are surveilled under the FAA every year;
    • A description of the rules that govern how American information picked up by FAA surveillance is protected.

    Can you believe that 435 members of Congress who have sworn to uphold the Constitution are about to vote on a sweeping intelligence gathering law without this basic information? Act now to let them know that it’s time for Congress to fix FISA. Keep an eye on this space and the @ACLU on Twitter for updates this week (for more detailed tweets about FISA, follow @Richardson_Mich, A.K.A. Michelle Richardson, the ACLU’s lobbyist who works on FISA).

    Relatedly, on October 29th, the Supreme Court will hear arguments in the ACLU’s constitutional challenge to the FAA, which was filed in 2008 less than an hour after President Bush signed the amendments into law.'

    http://www.aclu.org/blog/national-security/house-vote-fisa-amendments-act-wednesday