Mike Rogers’ Plan To ‘Stop’ Bulk Collection Of Phone Records Riddled With Dangerous Loopholes That Will Expand Surveillance
Now that people have had a chance to go through the proposal by Reps. Mike Rogers and Dutch Ruppersberger to “stop” the bulk phone record collection under Section 215 of the Patriot Act, they’re finding more and more things to be concerned about. We had noted some potential easter eggs in there for law enforcement, but the deeper people look, the worse it gets. Trevor Timm notes that the bill is really a trojan horse to expand surveillance capabilities, while pretending to end them.
Curiously, a large majority of the House bill focuses on new ways for the government to collect data from “electronic communications service providers” – also known as the internet companies. Why is a bill that’s supposedly about ending bulk collection of phone-call data focused on more collection of data from internet companies?
From there, we turn to Julian Sanchez, who has given one of the most thorough explanations of what’s actually in the bill, noting that it fails to really end the bulk collection of phone records while also potentially massively expanding other surveillance capabilities.
First, the HPSCI bill’s seemingly broad prohibition on bulk collection turns out to be riddled with ambiguities and potential loopholes. The fuzzy definition of “specific identifiers” leaves the door open to collection that’s extremely broad even if not completely indiscriminate. Because the provision dealing with “call detail records” applies only to §:215 and the provision dealing with “electronic communications records” excludes telephony records, the law does not bar the bulk collection of telephony records under FISA provisions other than §215. The prohibition on non-specific acquisition of other communications “records” probably does not preclude bulk collection under the FISA pen register provision that was previously used for the NSA Internet metadata dragnet. And, of course, none of these prohibitions apply to National Security Letters. If the government wanted to keep collecting metadata in bulk, it would have plenty of ways to do so within the parameters of this statute given a modicum of creative lawyering—at least if the FISC were to continue being as accommodating as it has been in the past.
Second, something like the novel authority created here may well be necessary to enable fast and flexible acquisition of targeted records without dragnet collection. However, once we get down to details—and even leaving aside the question of ex-post versus ex-ante judicial approval—this authority is in some respects broader than either the current §215 telephony program, the president’s proposal, or the pre-Snowden understanding of the FISA business records authority. Critically, it eliminates the required link to a predicated investigation—which, in the case of U.S. persons, must be for counterterror or counterespionage purposes.
In other words, this appears to be a superficial attempt to end bulk collection “under this program,” while at the same time knocking down a bunch of barriers to much broader bulk collection under other authorities, with less oversight and fewer ways to push back against abuse. Did anyone really expect anything different from the NSA’s two biggest defenders in the House?
The Obama years in Washington were supposed to be transparent ones, with increased public access to and awareness of Executive Branch operations. If anything, however, censorship and maintaining government secrets have been more prevalent the longer President Barack Obama has been in office.
“The government’s own figures from 99 federal agencies covering six years show that halfway through its second term, the administration has made few meaningful improvements in the way it releases records,” Ted Bridis and Jack Gillum reported for the Associated Press.
“In category after category—except for reducing numbers of old requests and a slight increase in how often it waived copying fees—the government’s efforts to be more open about its activities last year were their worst since President Barack Obama took office,” they added.
In 2012, the year of Edward Snowden and the National Security Agency (NSA) revelations, the administration cited “national security” as reason to keep hidden information a record 8,496 times.
That was 57% more than during the previous year and more than double during Obama’s first year in office, when it cited that reason 3,658 times.
Even agencies whose mission is not the defense of the nation cited this reason for denying Freedom of Information Act requests. The Farm Service Agency did it six times, the Environmental Protection Agency did it twice and the National Park Service once.
“I’m concerned the growing trend toward relying upon FOIA exemptions to withhold large swaths of government information is hindering the public’s right to know,” Senator Patrick Leahy (D-Vermont), chairman of the Senate Judiciary Committee, told the AP. “It becomes too much of a temptation. If you screw up in government, just mark it ‘top secret.’”
In 2013, a federal judge, Ellen Segal Huvelle, upbraided the Obama administration for trying to keep secret a non-classified policy directive regarding “Global Development.”
Obama has also failed to get federal agencies to update their procedures for handling FOIA requests.
Fifty of 101 agencies still haven’t updated their FOIA regulations to comply with Congress’ 2007 FOIA amendments, and more than half of them (55 of 101) haven’t even complied with changes called for by Obama and Attorney General Eric Holder Jr. to establish a “presumption of disclosure” to encourage the release of more documents, according to the National Security Archive at The George Washington University.
To Learn More:
US Cites Security More to Censor, Deny Records (by Ted Bridis and Jack Gillum, Associated Press)
Half of Federal Agencies Still Use Outdated Freedom of Information Regulations (National Security Archive)
48 Years after Creation of Freedom of Information Act, State Dept., Defense Dept. and VA Get Failing Grades (by Noel Brinkerhoff, AllGov)
Judge Chastises Obama Administration for Using “Secret Law” to Withhold Documents (by Noel Brinkerhoff, AllGov)
New York – The Supreme Court announced yesterday that it would not hear Center for Constitutional Rights v. Obama, a lawsuit challenging the National Security Agency’s warrantless surveillance of people within the United States. The suit sought an injunction ordering the government to destroy any records of surveillance that it still retains from the illegal NSA program. The Center for Constitutional Rights issued the following statement in response to the Court’s decision:
The Supreme Court’s refusal to review this case guarantees that the federal courts will never address a fundamental question: Was the warrantless surveillance program the NSA carried out on President Bush’s orders legal? The Court’s decision also guarantees that the Obama administration, which has for the last five years refused to take any position on that question, will now never have to answer either.
Despite mounting evidence of government spying on attorneys’ privileged communications, the Court yesterday declined to review the lower court’s determination that CCR attorneys’ fears of surveillance under President Bush’s NSA program, which involved no review by judges or Congress and flew directly in the face of express criminal prohibitions, were too “speculative” to allow CCR to challenge the program in court.
The Court’s decision comes as increasing evidence suggests the government has been surveilling attorney-client communications for some time. The New York Times recently reported that in 2013 the NSA surveilled law firm Mayer Brown while it represented the government of Indonesia in trade talks with the United States. In 2008, The Times reported Justice Department officials had confirmed that attorney-client communications in terrorism cases were sometimes subject to surveillance. And a document accidentally released to an Islamic charity in 2004 indicated that the D.C.-based attorneys for the charity had been subject to surveillance while speaking to their clients.
A memo released by whistleblower Edward Snowden indicated that the government only excludes attorney-client communications from collection when the client is under actual indictment in the United States. Communications of attorneys not directly with a client (for example, with expert witnesses or investigators abroad), or with a client not formally charged in the United States (including, for example, the Center for Constitutional Rights’ many Guantanamo detainee clients, none of whom are charged in federal courts) might now be subject to surveillance under broad orders issued under the current FISA statute.
In the wake of President Obama’s promise to stop spying on German Chancellor Angela Merkel, the US intelligence has switched its attention to her top government officials, a German newspaper reported.
Washington’s relations with Germany were strained last year after revelations that the US National Security Agency (NSA) was conducting mass surveillance in Germany and even tapped the mobile phone of Chancellor Merkel.
Facing the German outrage, President Barack Obama pledged that the US would stop spying on the leader of the European country, which is among the closest and most powerful allies of America.
After the promise was made, the NSA has stepped up surveillance of senior German officials, German newspaper Bild am Sonntag (BamS) reported on Sunday.
“We have had the order not to miss out on any information now that we are no longer able to monitor the chancellor’s communication directly,” it quoted a top NSA employee in Germany as saying.
BamS said the NSA had 297 employees stationed in Germany and was surveying 320 key individuals, most of them German decision-makers involved in politics and business.
Interior Minister Thomas de Maiziere is of particular interest to the US, the report said, because he is a close aide of Merkel, who seeks his advice on many issues and was rumored to be promoting his candidacy for the post of NATO secretary-general.
A spokesman for the German Interior Ministry told the newspaper it would not comment on the “allegations of unnamed individuals.”
Privacy issues are a very sensitive area in Germany, which holds the memory of invasive state surveillance practices by the Nazi government and later by the Communist government in the former East Germany.
Part of the outrage in Germany was caused by the allegation that US intelligence is using its surveillance capabilities not only to provide national security, but also to gain business advantage for American companies over their foreign competitors.
Berlin has been pushing for a ‘no-spying deal’ with the US for months, but so far with little success. Germany is also advocating the creation of a European computer network which would allow communication traffic not to pass through US-based servers and thus avoid the NSA tapping.
By now, most people who shop online are aware of the way in which companies try to tailor their offers based on your previous purchasing and browsing history. Being followed by strangely relevant ads everywhere is bad enough, but what if the government started using the same approach in its communications with you? That’s one of the key ideas explored in an interesting new article by Zeynep Tufekci, strikingly presented on Medium, with the title “Is the Internet good or bad? Yes.”
To understand the actual — and truly disturbing — power of surveillance, it’s better to turn to a thinker who knows about real prisons: the Italian writer, politician, and philosopher Antonio Gramsci, who was jailed by Mussolini and did most of his work while locked up. Gramsci understood that the most powerful means of control available to a modern capitalist state is not coercion or imprisonment, but the ability to shape the world of ideas.
The question then becomes: how can people’s ideas be shaped so as to control them? Simply bombarding the population with messages only works for a while, until people become jaded and resistant to them. That’s where Edward Snowden’s revelations about “big data surveillance” come in, Tufekci suggests:
Individually tailored, subtle messages are less likely to produce a cynical reaction. Especially so if the data collection that makes these messages possible is unseen. That’s why it’s not only the NSA that goes to great lengths to keep its surveillance hidden. Most Internet firms also try to monitor us surreptitiously.
She’s worried about this approach being used to influence people’s political behavior, and points to a recent study in Nature that explored precisely this area:
By altering a message designed to encourage people to vote so that it came with affirmation from a person’s social network, rather than being impersonal, the researchers had shown that they could persuade more people to participate in an election. Combine such nudges with psychological profiles, drawn from our online data, and a political campaign could achieve a level of manipulation that exceeds that possible via blunt television adverts.
Indeed, Tufekci thinks the process has already begun:
During a break [in a conference called "Data-Crunched Democracy"], I cornered the chief scientist on Obama’s data analytics team, who in a previous job ran data analytics for supermarkets. I asked him if what he does now — marketing politicians the way grocery stores market products on their shelves — ever worried him. It’s not about Obama or Romney, I said. This technology won’t always be used by your team. In the long run, the advantage will go to the highest bidder, the richer campaign.
He shrugged, and retreated to the most common cliché used to deflect the impact of technology: “It’s just a tool,” he said. “You can use it for good; you can use it for bad.”
That’s hardly very comforting, and neither is Tufekci’s concluding thought:
Internet technology lets us peel away layers of divisions and distractions and interact with one another, human to human. At the same time, the powerful are looking at those very interactions, and using them to figure out how to make us more compliant. That’s why surveillance, in the service of seduction, may turn out to be more powerful and scary than the nightmares of Nineteen Eighty-Four.
Brazil is pushing ahead with plans to boost its Internet security by developing an undersea fibre-optics communications cable that would reroute its online traffic directly to Europe, bypassing the United States.
State-owned telecom provider Telebras recently announced that it was entering into a joint venture with Spain’s IslaLink Submarine Cables to build a link between the northeastern city of Fortaleza and the Iberian Peninsula.
The undersea cable is budgeted at $185 million and construction is scheduled to begin in July.
Brazil, along with most Central and South American countries, traditionally routes its Internet traffic through the Network Access Point, which is hosted in Miami, Florida.
Brazil, Russia, India, China and South Africa currently use hubs in Europe and the US to connect to one another, which translates into higher costs and leaves open the opportunity for data interception and theft.
Telebras project coordinator Ronald Valladão says the cable will boost Brazil’s Internet security and cut online costs for the consumer.
“This new submarine cable provides a direct connection to the European continent, decreasing latency. It is expected that this will result in cost reductions,” he recently told the media.
Since Edward Snowden, the National Security Agency contractor who leaked vital intelligence to the media on US domestic and overseas surveillance, published information that Washington was aggressively spying on Brazilian officials, including the president, Brasilia has made Internet security and communications a priority.
Brazil and its fellow BRICS partners are also moving ahead with building a massive undersea cable that would connect all members.
By the time it is completed, the BRICS Cable will be the third longest undersea telecommunications cable in the world, covering a distance of 34,000km.
Brazilian President Dilma Rousseff has also pushed a new Internet bill that would compel Google, Facebook and other networks to store locally gathered data in the country, and not on overseas servers.
The new legislation would force foreign-based Internet companies to maintain data centres inside Brazil that would then be governed by Brazilian privacy laws, officials said.
Rousseff has repeatedly said that the US spying regimen is unacceptable, and postponed an official visit to the US originally scheduled for October 23 in protest.
“The illegal practices of intercepting the communications and data of citizens, companies and members of the Brazilian government constitute a serious act against national sovereignty and individual rights, and incompatible with the democratic coexistence of friendly countries,” a presidential statement said when revelations of espionage in Brazil were made public.
On November 24, Brazil and Argentina urged other South American countries to discuss a bilateral treaty on cyber-security.
On November 27, the UN Rights Committee passed a “right to privacy” resolution, drafted by Brazil and Germany.
The Third Committee of the UN General Assembly, which deals with social, humanitarian and cultural affairs, unanimously adopted the resolution, saying surveillance and data interception by governments and companies “may violate or abuse human rights.”
In late January, talks between Brazil and the US failed to satisfactorily answer the spying charges or eke out a “permanent solution” to restore bilateral ties damaged by the Snowden revelations.
Mass surveillance of electronic communications is a vast, new, government intrusion on the privacy of innocent people worldwide. It is a violation of International human rights law. Without checks and balances, its use will continue to spread from country to country, corrupting democracies and empowering dictators.
That’s why, today, on February 11th, around the world, from Argentina to Uganda, from Colombia to the Philippines, the people of the Internet have united to fight back.
The Day We Fight Back’s main global action is to sign and promote the 13 Principles, a set of fundamental rules that, in clear language, tells lawmakers and governments how to apply existing human rights law to these new forms of surveillance. With the support of thousands of Net users, we’ll use your voice to demand that all governments comply with their obligation to protect privacy against unchecked surveillance.
But there’s more to today’s global action than the Principles. Hundreds of digital rights and privacy groups, thousands of individual Net users, in dozens of countries, have come together to protest surveillance by governments at home and abroad. Here’s just a sampling of the campaigns and events happening today:
In Argentina, the Asociación por los Derechos Civiles and Vía Libre Foundation is suing the Argentinian Congressional surveillance oversight commission for withholding basic information on surveillance practices in the country.
In Australia, a coalition of groups under the banner Citizens Not Suspects, is joining to demand a government investigation of the practices of the notorious “Five Eyes” countries — the nations, including Australia, which share intelligence with the NSA.
In Brazil, where the upcoming Marco Civil bill promises to encode human rights into the country’s Internet law, citizens are renewing their demands to include strong privacy protections.
In Canada, more than 45 major organizations, and tens of thousands of Canadians are calling their elected representatives to stop illegal spying by Communications Security Establishment Canada (CSEC), Canada’s spying agency.
Colombians have launched “Internet sin Chuzadas”, a campaign calling for the end of unchecked surveillance at home and abroad.
France’s La Quadrature Du Net have started an NSA Observer program to inform people of the NSA’s global surveillance. The Philippines’ Internet Freedom Alliance (PIFA) is organizing a day of mass action against the country’s draconian Cybercrime Prevention Act.
In Serbia, SHARE Foundation, one of the earliest supporters of the 13 Principles, is renewing their campaign against surveillance locally and internationally.
In Uganda, Unwanted Witness will be urging their local telephone companies to stop sharing private data with politicians.
And in the United Kingdom, a huge coalition of Britain’s privacy groups is launching DontSpyOnUs.org.uk, to pressure the UK’s GCHQ to stop its global mass surveillance apparatus.
In the US? Call Congress today.
Dial 202-552-0505 or click here to enter your phone number and have our call tool connect you
Calling Congress takes just five minutes and is the most effective action you can take right now to let your elected officials know that mass surveillance must end.
Here’s what you should say:
I’d like Senator/Representative __ to support and co-sponsor H.R. 3361/S. 1599, the USA Freedom Act. I would also like you to oppose S. 1631, the so-called FISA Improvements Act. Moreover, I’d like you to work to prevent the NSA from undermining encryption standards and to protect the privacy rights of non-Americans.
Where ever you live, can join them: you can visit Necessary And Proportionate, the home of the 13 Principles, and add your name to our action, and find out what is happening in your own country. Write your own posts of opposition, and spread the word through the hashtag #stopspying .
The prominent Democratic website Think Progress recently took aim at the anti-NSA surveillance movement with a warning to “Beware of Libertarians Bearing Gifts”. The blog suggests bipartisan alliances between civil liberties advocates and libertarians will sink the New Deal, which some might say is already taking on a bit of water.
The direct target of authors Zack Beauchamp and Ian Millhiser is the Offnow.org coalition, a partnership anchored by the right-wing Tenth Amendment Center and the left-wing Bill of Rights Defense Committee.*
The premise of Offnow is local legislation in states, counties, and universities to make it policy to dis-invest in mass surveillance. Twelve state legislatures have introduced versions of the 4th Amendment Act (Alaska, Arizona, California, Indiana, Kansas, Mississippi, Missouri, New Hampshire, Oklahoma, Tennessee, Vermont and Washington). The big target is Utah, home of the huge Utah Data Center in Bluffdale, where the provision of 1.7 million gallons of water by the state every day cools the huge supercomputers.
Think Progress’s objection to turning off the utilities on the NSA emanates from a liberal nightmare of a state like Texas darkening health clinics for poor people or cutting off water supplies to voting rights attorneys.
Let me be clear. I buy the idea that nutty contingents of the Tea Party might advocate for such things. Texas’s recent foray into fetal survival within the carcass of a deceased woman is evidence to never say never. But there is one basic difference.
Mass blanket surveillance of telephone metadata, email and Internet searches without individualized warrants and probable cause, is unconstitutional. The Bill of Rights doesn’t allow it. Congress didn’t approve it. The American public didn’t know about it until a certain contractor took a trip to Hong Kong. The idea Think Progress is embracing – the rogue activities of the NSA are established government policy – isn’t true.
Even the unaccountable secret FISC court has agreed: “The Obama administration, under pressure from continued NSA leaks, declassified documents Wednesday showing the agency scooped up tens of thousands of emails and other online communications from Americans beginning in 2008 that it wasn’t allowed to target, and was told to stop by the secret court that oversees the program”.
The Dems at The Center for American Progress also seem stricken by an attack of amnesia about the long tradition of local disinvestment movements to impact American policy – by progressives.
The anti-apartheid movement advocated for disinvestment in South Africa under apartheid from both private and public sources including state universities. By 1984, 53 U.S institutions divested, by 1987, 128 including the University of California. By the end of 1989, 26 states, 22 counties and over 90 cities had taken some form of binding economic action against companies doing business in South Africa. Most of this pre-dated the 1986 Comprehensive Apartheid Act by Congress.
Over 110 American cities have declared themselves sanctuary cities that will provide limited or no local cooperation with the Secure Communities deportation program run by the Department of Homeland Security.
Vermont, the state most often described as a progressive Disneyland has developed a virtual cottage industry in defying the federal government. In just the last few years, the state has authorized hemp growing without a permit, passed a law prohibiting patent trolling not addressed by the US Patent Act, opted out of the Affordable Care Act, and has considered a GMO labeling bill, currently stalled by litigation threats from Monsanto.
If the New Deal is sinking, the most progressive state in the nation appears to be steadily poking holes in the hull of the boat.
In the latest version of “you’re with us or you’re against us”, the Center for American Progress has embraced an a-historical definition of progressivism that prioritizes not sleeping with the enemy over principled dissent against unconstitutional activities.
The last line of the Think Progress article is “Ideology matters”.
Does it really matter more than justice?
*Disclaimer: Media Alliance, my organization, recently joined the Offnow coalition.
Tracy Rosenberg is the executive director of Media Alliance (www.media-alliance.org), an Oakland CA-based democratic communications advocacy organization. Research assistance with this article was provided by Alexander Houk.
Orwell Would Be Proud
Benjamin Wittes of the Brooking Institution has become the go-to non-government NSA apologist. One of his most recent articles is a true work of rhetorical artistry, in which he tries to explain why saying “the NSA doesn’t spy on Americans” is acceptable shorthand for the fact that the NSA spies on pretty much every American. It’s a master class in political doubletalk. First, it’s the law’s fault. The law, you see, is too complicated for mere mortals not working for the NSA to understand, so that makes it okay to lie:
The law is so dense and so complicated that it cannot be accurately summarized at a level a citizen can reasonably process.
Any effort to summarize the relevant law necessarily ignores themes sufficiently important to its architecture that the reductionism will partake of serious inaccuracy. The person who told my friend that NSA does not spy on Americans was not lying. He or she was highlighting a crucially-important limitation on NSA’s authority vis a vis US persons. The law and the relevant regulations all contain significant territorial restrictions and significant protections for US persons overseas as well—all designed to separate the foreign intelligence mission of NSA from both domestic intelligence and domestic law enforcement. It’s a sincere and pervasive effort. “We don’t spy on Americans” is a common shorthand for a wealth of law and practice that really and meaningfully keeps the agency out of the business of being a covert domestic intelligence agency.
Got that? Because there are some limitations on all the spying they do on Americans, and it’s too complicated to understand those limitations, so it’s okay to lie and say they don’t spy on Americans. Of course, in the very next paragraph, Wittes tries to effectively brush away the massive amount of surveillance done on Americans.
NSA, after all, does spy on individual Americans with an order from the FISC. It does, moreover, capture all domestic telephony metadata. And most importantly, it does routinely capture communications between Americans and the targets of its surveillance and incidentally capture other material its systems scoop up overseas—subject to rules that limit the retention and processing of US person information. In other words, to say that NSA does not spy on Americans emphatically does not mean, as a reasonable student or citizen might expect it to mean, that the agency does not regularly acquire and process the communications of Americans.
Of course, as Jameel Jaffer from the ACLU points out, this is all nonsense because it’s a simple fact that the NSA does do surveillance on Americans, and to claim otherwise is not acceptable shorthand. It’s a lie. And while Wittes then tries to obfuscate things even more by trying and purposely failing to come up with a concise way of summarizing what the NSA does, Jaffer helps out with a few workable suggestions:
This is nonsense. Perhaps Ben’s right that it’s difficult to come up with a single sentence, or even a single paragraph, that clearly and comprehensively describes the nature and extent of the NSA’s surveillance of Americans. (Can you describe any federal agency’s functions in a single, comprehensive paragraph?) But it’s not difficult to come up with a sentence more accurate than “The NSA doesn’t spy on Americans.” Try this one: “The NSA spies on Americans.” Or this one: “The NSA collects a huge amount of information about Americans’ communications and in many contexts it collects the communications themselves.” Or this one: “The NSA is sometimes described as a foreign-intelligence agency but this label should not obscure the fact that a large part of the agency’s energy is dedicated to collecting and analyzing information about Americans.”
Jaffer further points out that Wittes’s suggestion that those who claim the NSA doesn’t spy on Americans are really trying to tell the truth through shorthand, is actually misleading. As Jaffer points out:
Any official who says the NSA isn’t spying on Americans is seeking to mislead.
And anyone defending that statement is trying to support that fundamental attempt to mislead.
Last week, the ACLU joined a constitutional challenge to the FISA Amendments Act of 2008 (FAA), the statute that allows the NSA to engage in dragnet surveillance of Americans’ international phone calls and emails. With the Federal Defenders Office, we filed a motion on behalf of Jamshid Muhtorov, the first criminal defendant to receive notice that he had been monitored under this controversial spying law. But Mr. Muhtorov received this notice only after the Department of Justice (DOJ) abandoned its previous policy of concealing FAA surveillance in criminal cases — a policy that violated both the statute itself and defendants’ due process rights.
For criminal defendants and for the country, it’s good news that the government is reviewing criminal cases in which FAA evidence has played a role. But the FAA is just one surveillance program among many. And given what we now know about the DOJ’s unlawful notice policy, we should be asking whether the government has concealed in criminal prosecutions its use of other mass surveillance programs.
Let’s start with the NSA’s internet-metadata program. That program involved the NSA’s bulk collection of records about Americans’ online activity between 2001 and 2011. Under this program, the NSA vacuumed up information such as the “to” and “from” data in emails and, in all likelihood, the addresses of websites visited by Americans.
As Brett Max Kaufman and I have described elsewhere, the program has a problematic past. It was secretly authorized by President Bush in 2001 and then belatedly approved by the Foreign Intelligence Surveillance Court (FISC) in a secret opinion, recently declassified, that has been heavily criticized. In particular, the FISC found that bulk collection of Americans’ internet metadata was permissible under FISA’s pen-register and trap-and-trace provision (PR/TT). The program was reportedly discontinued in 2011 for “operational and resource reasons” — but only after the NSA had tracked Americans’ internet activity for a decade.
It doesn’t take much to imagine that, over those ten years, some of that internet data made its way into criminal investigations and prosecutions. Indeed, we know that the NSA collected huge volumes of metadata under this program, that it routinely pools its various streams of data in order to conduct “contact-chaining,” and that it often feeds tips or leads to the FBI and even the DEA.
If the internet-metadata program did contribute to criminal prosecutions, the government had a duty to tell defendants. That’s because FISA’s PR/TT provision includes a notice requirement. Notice is also a matter of basic due process, because defendants have the right to test whether the government obtained its evidence against them lawfully.
The government has never told a criminal defendant that the internet-metadata program supplied evidence for a prosecution — but, as the FAA experience makes plain, that doesn’t mean it didn’t happen. We know that for five years the government violated an identical notice provision in the FAA, adopting a self-serving interpretation of the law that allowed the government to effectively circumvent the notice provision altogether. Indeed, after learning of DOJ’s FAA notice policy, the solicitor general reportedly concluded that it “could not be justified legally.”
It seems likely that the government embraced the same flawed legal theory with respect to notice and evidence derived from the internet-metadata program. If so, then criminal defendants were almost certainly left in the dark — and were very likely convicted with the help of this evidence.
If that’s the case, those individuals went to prison without having a chance to test the legality of the government’s bulk collection of their internet records — a program that, from its inception, stood on precarious legal ground. Any failure to provide notice would have been a violation of those defendants’ due process rights, calling their convictions into question. Let’s hope their cases are part of the Attorney General’s ongoing review.
Dissatisfied with President Barack Obama’s reforms for the National Security Agency (NSA) and Congress’ lack of progress on the same front, state lawmakers across the country are introducing legislation to limit the spy agency’s snooping on Americans.
To date, a dozen states ranging from Alaska to Mississippi are considering bills to limit their state’s involvement with NSA surveillance programs.
The effort began in Arizona, where State Senator Kelli Ward, a tea party Republican, became the first legislator in the U.S. to offer up ways to curb NSA activity at the state level.
Her bill, SB 1156 (pdf), would prohibit local and state law enforcement from cooperating with the NSA. It also would bar state or local prosecutors from using NSA intelligence that had not been obtained with a warrant, and cut funding to state universities supporting the NSA with research or recruitment.
Ward’s actions inspired legislators in other states, who introduced their own anti-NSA plans.
“If the feds aren’t going to address the issue, then it’s up to the states to do it,” David Taylor, a Republican in the Washington state House of Representatives whose Yakima Valley district hosts an NSA listening post, told Mother Jones.
His measure, which enjoys Democratic support, would cut off “material support, participation or assistance” from the state and its contractors to any federal agency that collects data or metadata on people without a warrant.
Last month in California, state lawmakers introduced the Fourth Amendment Protection Act (pdf), which would ban state officials from assisting the federal government in warrantless collection of metadata on Americans. The same has been done in Alaska, with one bill proposed in the House, and another in the Senate.
It remains to be seen whether these measures, if they become law, will stand up to a likely court challenge by the federal government.
Erwin Chemerinsky, dean of UC Irvine’s School of Law and a constitutional scholar, says the Arizona plan would likely be struck down because the state is trying to regulate the federal government.
“The question here is going to be to what extent is the state interfering with the achievement of the federal objective? To what extent is the state regulating the federal government’s activities?” he told the Los Angeles Times. “However well-intentioned it is, most would be preempted by federal law…. The law is clear that states can’t regulate the federal government.”
States have a right to regulate activity within its borders, counters Michael Boldin, executive director of the Tenth Amendment Center, which provides states legislatures with model language for such bills. “If enough people in enough states say they are not going to participate in this, it will stop them from doing what they are doing,” he told the Times regarding the NSA. “It’s going to box them in a corner and be more difficult for them to pull things off.”
To Learn More:
Arizona Legislator Pushes Bill to Combat NSA Surveillance (by Cindy Carcamo, Los Angeles Times)
Legislators in 6 States Want to Pull the Plug on NSA Spying—Some Literally (by Josh Harkinson, Mother Jones)
California, Other States, Weighing Anti-NSA Bills (by Jacob Gershman, Wall Street Journal)
Haphazard Police Spying Across U.S. Puts Americans’ Civil Liberties in Jeopardy (by Noel Brinkerhoff, AllGov)
Senate Committee Approves Continued Bulk Spying on Americans (by Noel Brinkerhoff, AllGov)
Did Campaign Contributions Influence Representatives who Voted in Favor of NSA Phone Spying? (by Matt Bewig, AllGov)
The Canadian government’s intelligence agency has spied on thousands of travelers through the wireless Internet service at a major airport, according to new revelations.
The top-secret document retrieved by US whistleblower Edward Snowden revealed that the Communications Security Establishment Canada (CSEC) tracked the wireless devices of passengers by using information gleaned from free Internet service at an unnamed major Canadian airport.
The Canadian Broadcasting Corporation (CBC) reported that the data was collected from passengers’ smart-phones and laptops over a two-week period and that the devices were tracked for a week or longer afterwards.
CBS said the technology was to be shared with the so-called “Five Eyes” spy partnership, namely the US, Canada, Britain, New Zealand and Australia.
“Classified document in question is a technical presentation between specialists exploring mathematical models built on everyday scenarios to identify and locate foreign terrorist threats,” CSEC spokesperson claimed.
Ontario privacy commissioner Ann Cavoukian, however, said she was “blown away” by the revelations. She also likened the country’s spy agency to those of a “totalitarian state, not a free and open society.”
Ronald Deibert, the director of the Canada Centre for Global Security Studies, also said the CSEC’s secret operation was almost certainly illegal.
“I can’t see any circumstance in which this would not be unlawful, under current Canadian law, under our Charter, under CSEC’s mandates,” he told CBC News.
It was also recently revealed that Canada has set up cover spying posts around the world and spied on trading partners at the request of the US National Security Agency (NSA).
Reports published in Canadian media and based on the leaks have shown that Canada allowed the NSA to conduct surveillance operations on its soil during the 2010 summits of G8 and G20.
Other reports have shown that the Canadian intelligence agency spied on communications at Brazil’s Mining and Energy Ministry, as it has mining interests in the South American country.