Political Moves: How Dianne Feinstein Cut Off One Of The Few Attempts At Actual Oversight By Senate Intelligence Committee
By Mike Masnick | Techdirt | September 27, 2013
We’ve already covered how Dianne Feinstein used the Senate Intelligence Committee hearing to play games with the English language, while Senator Dan Coats used it to rant against all you stupid Americans for not trusting the NSA, but there have been some actual attempts to have the Senate Intelligence Committee perform its actual duty of oversight. Both Senators Ron Wyden and Mark Udall — who have been trying to raise these questions for years — actually had specific questions for the assembled panel, but the panel (mainly Keith Alexander) did its best to completely avoid answering the questions, then used political gamesmanship to block Wyden from asking followups.
Wyden used his question to highlight what he’s been hinting at for years, that it’s almost certain that the NSA has collected bulk data on the locations of Americans (something not yet officially revealed, and which they’ve sort of tried to deny for a while). Wyden has been asking versions of this question for a few years (and trying to pass legislation blocking this kind of thing for nearly as long). But watch how Keith Alexander never actually answers the question:
Wyden: Now with respect to questions, let me start with you Director Alexander, and, as you all know, I will notify you in advance so that there won’t be any surprise about the types of issues we are going to get into. And Director Alexander, Senators Udall, Heinrich and I and about two dozen other senators have asked in the past whether the NSA has ever collected or made any plans to collect Americans’ cell-site information in bulk. What would be your response to that?
Gen. Keith Alexander: Senator, on July 25, Director Clapper provided a non-classified written response to this question amongst others, as well as a classified supplement with additional detail. Allow me to reaffirm what was stated in that unclassified response. Under section 215, NSA is not receiving cell-site location data and has no current plans to do so. As you know, I indicated to this committee on October 20, 2011, that I would notify Congress of NSA’s intent to obtain cell-site location data prior to any such plans being put in place. As you may also be aware….
Note the word games: “under Section 215.” He does not say whether they’ve used some other authority to do so. And then he’s just repeating talking points so Wyden flat out cuts him off:
Wyden: General, if I might. I think we’re all familiar with it. That’s not the question I’m asking. Respectfully, I’m asking, has the NSA ever collected or ever made any plans to collect Americans’ cell-site information. That was the question and we, respectfully General, have still not gotten an answer to it. Could you give me an answer to that?
Alexander: We did. We sent that — as you’re also aware I expressly reaffirmed this commitment to the committee on June 25, 2013. Finally, in the most recent and now declassified opinion renewing this program, the FISA court made clear in footnote number five that notice to the court in a briefing would be required if the government were to seek production of cell-site location information as part of the bulk production of call detail records. Additional details were also provided in the classified supplement to Director Clapper’s July 25th response to this question. So what I don’t want to do, Senator, is put out in an unclassified forum anything that’s classified there so I’m reading to you exactly. So we sent both of these to you. I saw what Director Clapper sent and I agree with it.
Wyden: General, if you’re responding to my question by not answering it because you think that’s a classified matter that is certainly your right. We will continue to explore that because I believe this is something the American people have a right to know whether the NSA has ever collected or made plans to collect cell-site information. I understand your answer. I’ll have additional questions on the next round. Thank you, Madam Chair.
First off, Alexander’s answer shows that, contrary to the assertions of some staunch NSA defenders, it is entirely possible to answer a question by saying “there is more information in classified documents that shouldn’t be shared in an open setting.” Some have tried to excuse James Clapper’s lies to Congress by suggesting he couldn’t have said more or less what Alexander said here.
Second, note the doublespeak that Alexander is engaged in here. Even asked, again, to answer the basic question, Alexander pulls an “under this program” type of answer, suggesting (again) that American location data either has been, or is planned, to be collected in bulk. That is worrisome, and should not be classified information. Rather it should be open to public debate as to whether or not it’s appropriate.
But here’s where the political gamesmanship came in. Committee chair Dianne Feinstein gave Senators only five minutes each for their questions. It seemed like a majority of this “oversight” committee didn’t actually ask any questions, but rather, like Coats, simply filibustered angrily at the American public or press for not trusting the NSA. But when actual questions were asked, not enough time was given to get a straight answer. At the very end of the hearing, after most of the other Senators had left, Senator Wyden made a perfectly normal request: could he ask his followup questions. He noted that he just had two questions and both could be asked within an additional five-minute window. Senator Susan Collins, who had similarly filibustered during her own five minutes (focusing mainly on knocking down a complete strawman: falsely insisting that people were upset that the NSA was using Section 215 of the Patriot Act to record all phone calls, when everyone knows that it’s just about call records, not call contents), objected to Wyden’s request because she thought everything would go in order. It was pure political gamesmanship.
So instead of getting to conduct more actual oversight by having the committee ask important questions of the surveillance bosses, the panel, instead, moved on to the “second part” of the hearing, which involved two staunch non-governmental NSA defenders who basically sat down to talk about the awesomeness of being able to spy on everyone. Ben Wittes opened with a “joke” about how the NSA’s director of compliance John DeLong, mocked the level of scrutiny the NSA was under by pointing out that if he had typos in a document he’d have to reveal that to some oversight authority. Har har. This was useless. There was no reason to have them testify, and they were given a hell of a lot more time than the Senators actually asking questions.
That time could have been used to actually conduct oversight. Instead, we got nothing. Throughout the panel Senators pointed out that the American public doesn’t trust the NSA right now (though, they often blamed the public and the press for this, rather than the direct actions and statements of the NSA). If they wanted a lesson in how not to build up that trust, holding a completely toothless “oversight” hearing was a pretty good start.
After Wyden, Udall also asked some specific questions, in which the deputy Attorney General basically just repeated the FISA Court ruling saying that “relevant” has been redefined by the intelligence community to mean basically anything that the intelligence community feels is “necessary” to its investigations, and seems to think that it’s a good thing that this is a “low bar.” He completely ignores the basics of the 4th Amendment, as well as recent Supreme Court decisions on the topic.
I’ve included the video of both Wyden and Udall’s questions below, so you can see the less than 20 minutes of the two-hour session where actual serious questions were asked.
Tone Deaf Dianne Feinstein Thinks Now Is A Good Time To Revive CISPA
By Mike Masnick | Techdirt | September 25, 2013
We had believed, along with a number of others, that the Snowden leaks showing how the NSA was spying on pretty much everyone would likely kill CISPA dead. After all, the key component to CISPA was basically a method for encouraging companies to have total immunity from sharing information with the NSA. And while CISPA supporters pretended this was to help protect those companies and others from online attacks, the Snowden leaks have reinforced the idea (that many of us had been pointing out from the beginning) that it was really about making it easier for the NSA to rope in companies to help them spy on people.
Also, if you don’t remember, while CISPA had passed the House, the Senate had shown little appetite for it. Last year, the Senate had approved a very different cybersecurity bill, and had expressed very little interest in taking up that fight again this year. Except now, in an unexpected move, Senate Intelligence Committee boss, and chief NSA defender because of reasons that are top secret, has now announced that she’s been writing a Senate counterpart to CISPA and is prepared to “move it forward.”
Yes, it seems that even though the NSA gleefully hid the evidence of widespread abuses from Feinstein’s oversight committee, she’s playing the co-dependent role yet again. Yes, there’s a chance that this new version of the bill will actually take into account privacy and civil liberties, but I doubt many people would take a bet on that being likely.
Right now what the public is concerned about are not “cyberattacks” from foreigners — they’re concerned about our own government undermining the security and privacy of Americans themselves. Giving those responsible for that destruction of privacy and trust more power to abuse the privacy of Americans is not what people are looking for. Quite the opposite.
“Independent Experts” Reviewing NSA Spying Have Ties to Intelligence Community
By Noel Brinkerhoff and Danny Biederman | AllGov | September 25, 2013
President Barack Obama’s special panel of “independent” experts charged with reviewing the National Security Agency’s (NSA) domestic spying programs is actually lacking in independence.
For starters, the panel assembled to determine if the NSA has violated Americans’ civil liberties consists of five members—four of whom have previously worked for Democratic administrations.
One member is Michael Morell, who served in the Central Intelligence Agency under Obama as deputy director, and twice served as acting director.
The other three with Democratic ties are Peter Swire, former Office of Management and Budget privacy director under President Bill Clinton; Richard Clarke, former counterterrorism coordinator under Clinton and later for President George W. Bush; and Cass Sunstein, Obama’s former regulatory czar.
The fifth panel member is Geoffrey Stone of the University of Chicago, who was an informal adviser to Obama’s 2008 presidential campaign and is now helping develop Obama’s presidential library. Stone previously went on record as saying that the NSA’s collection of Americans’ phone records is constitutional.
“No one can look at this group and say it’s completely independent,” Sascha Meinrath, director of the Open Technology Institute and vice president at the New America Foundation, told the Associated Press after attending one of the panel’s meetings.
Michelle Richardson, an ACLU legislative counsel who attended one meeting for civil liberties groups, said her organization “would have liked a more diverse group” for the panel.
Another sign that the group lacks independence is in its name—“Director of National Intelligence Review Group on Intelligence and Communications Technologies.”
The AP’s Stephen Braun noted that “the panel’s official name suggests it’s run by” the Office of the Director of National Intelligence (DNI).
In fact, Obama’s announcement in August that the review group would be established by DNI James Clapper triggered a wave of criticism. Obama tried to quell the outcry by assuring the country that Clapper would neither run the panel nor select its members.
But there is more than the panel’s name that suggests DNI oversight. The panel’s so-called outside experts work inside offices provided by the DNI. And it is the DNI’s press office that coordinates all press statements and interview requests.
Another point of criticism stems from Clapper’s decision to exempt the panel from the U.S. Federal Advisory Committee Act, which requires such committees to conduct open meetings and notify the public about their activities. Indeed, it has been reported that during recent weeks the panel’s meetings have been closed to the public even when no classified material was discussed.
There appears to be no formal directive stating that the panel should operate independently of the Obama administration. In fact, the situation is quite the opposite. An official White House memorandum actually provides the panel with instructions for areas to emphasize in its review: whether U.S. spying programs advance foreign policy, protect national security, and are safe from leaks.
In his August 9th press conference regarding the establishment of this panel, Obama promised that the “outside experts” will “consider how we can…make sure that there absolutely is no abuse in terms of how these surveillance technologies are used.” But nowhere in the White House memo is the panel instructed to investigate surveillance abuses.
The panel’s report is due by December 15. On that date it is not to be made public, nor is it to be delivered to the press. Rather, it will be submitted to the White House for review.
To Learn More:
Close Ties Between White House, NSA Spying Review (by Stephen Braun, Associated Press)
NSA Spying Review Panel Appointed by Obama Set to Whitewash Surveillance Abuses (by Kevin Gosztola, Dissenter)
Surveillance Privacy: Obama Orders Fox to Guard Chicken Coop (by Noel Brinkerhoff, AllGov)
Related articles
- Obama’s NSA ‘Independent’ Review Clearly a Public Relations Move (reason.com)
- NSA Spying Review Panel Appointed by Obama Set to Whitewash Surveillance Abuses (dissenter.firedoglake.com)
Anti-piracy curriculum for elementary schools decried as ‘propaganda’
RT | September 24, 2013
Content-industry giants and internet service providers are teaming up to produce multi-grade elementary school curriculum which will denounce copyright infringement.
The likes of the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA), AT&T, Verizon, Google, Microsoft, Facebook, and Comcast are behind the pilot project which will be tested in California elementary schools later this year.
The curriculum, called “Be a Creator,” is not quite complete, producers say, though Wired was able to obtain the various levels of content – from kindergarten to sixth grade – which aim to communicate that copying is theft.
“This thinly disguised corporate propaganda is inaccurate and inappropriate,” said Mitch Stoltz, an intellectual property attorney with the Electronic Frontier Foundation who reviewed the material.
“It suggests, falsely, that ideas are property and that building on others’ ideas always requires permission,” Stoltz says. “The overriding message of this curriculum is that students’ time should be consumed not in creating but in worrying about their impact on corporate profits.”
The content was made by the California School Library Association and the Internet Keep Safe Coalition. The Center for Copyright Infringement commissioned the material. The center’s board is made up of executives from MPAA, RIAA, Verizon, Comcast, and AT&T.
Each grade’s package includes a short video and a teacher worksheet of talking points.
For example, the sixth grade version urges children to realize that copyright infringement can have worse consequences than cheating on a test, which usually results in a bad grade or suspension from school.
“In the digital world, it’s harder to see the effects of copying, even though the effects can be more serious,” the teacher worksheet says.
The material does not comment on fair use, which allows for the reuse of copyrighted works without permission. Rather, students are told that using without permission is “stealing.”
The Internet Keep Safe Coalition, a non-profit organization partnering with governments and major corporations like Facebook and Google, said that fair use is beyond the comprehension of sixth graders.
The curriculum “is developmentally consistent with what children can learn at specific ages,” the group’s president, Marsali Hancock, told Wired, adding that materials for older children will include the concept.
A video for second graders shows a child taking photos and debating whether to sell, keep, or share them.
“You’re not old enough yet to be selling your pictures online, but pretty soon you will be,” reads the teacher lesson plan. “And you’ll appreciate if the rest of us respect your work by not copying it and doing whatever we want with it.”
The groups involved in the curation of the material stressed that it was in draft form at this point, and that some wording will be changed before the pilot project begins in schools.
“We’ve got some editing to do,” said Glen Warren, vice president of the non-profit California School Library Association.
Warren alluded that the Center for Copyright Information (CCI), a content-industry group, has already had influence on the project.
Hancock said the material has not yet been approved by CCI. The group is best known for working with the government and rights holders to begin an internet monitoring program with large ISPs that punish violators with extrajudicial measures like temporary internet termination and weak connection speeds.
CCI’s executive director, Jill Lesser, has alluded to youth education programs in the past.
“Based on our research, we believe one of the most important audiences for our educational efforts is young people. As a result, we have developed a new copyright curriculum that is being piloted during this academic year in California,” she said last week in a testimony on Capitol Hill.
“The curriculum introduces concepts about creative content in innovative and age-appropriate ways. The curriculum is designed to help children understand that they can be both creators and consumers of artistic content, and that concepts of copyright protection are important in both cases,” Lesser testified.
She said that CCI’s board will likely sign off on the curriculum soon.
“We are just about to post those materials in the next week or two on our web site,” Lesser told Wired.
The first grade lesson plan puts content sharing on par with theft.
“We all love to create new things – art, music, movies, paper creations, structures, even buildings! It’s great to create – as long as we aren’t stealing other people’s work. We show respect for other artists and their work when we get permission before we use their work,” the material says. “This is an important part of copyright. Sharing can be exciting and helpful and nice. But taking something without asking is mean.”
The fifth grade lesson introduces the Creative Commons license, though it distorts the legality of copying copyrighted works.
“If a song or movie is copyrighted, you can’t copy it, download it, or use it in your own work without permission,” the fifth grade worksheet reads. “However, Creative Commons allows artists to tell users how and if their work can be used by others. For example, if a musician is okay with their music being downloaded for free – they will offer it on their website as a ‘Free download.’ An artist can also let you know how you can use their work by using a Creative Commons license.”
Brazil’s Rousseff to UN: US surveillance an ‘affront’
RT | September 24, 2013
Brazilian President Dilma Rousseff lambasted US spying on her country at Tuesday’s UN summit, calling it a “breach of international law.” She further warned that the NSA surveillance, revealed since June, threatened freedom of speech and democracy.
“Meddling in such a manner in the lives and affairs of other countries is a breach of international law and as such it is an affront to the principles that should otherwise govern relations among countries, especially among friendly nations,” Rousseff said.
“Without the right to privacy, there is no real freedom of speech or freedom of opinion,” Rousseff told the gathering of world leaders. “And therefore, there is no actual democracy,” she added, criticizing the fact that Brazil had been targeted by the US.
“A country’s sovereignty can never affirm itself to the detriment of another country’s sovereignty,” she added.
Rousseff went on to propose a multilateral, international governance framework to monitor US surveillance activity. “We must establish multilateral mechanisms for the world wide web,” she said.
Rousseff said that the US’s arguments for spying on Brazil and other UN member states were “untenable”, adding that “Brazil knows how to protect itself” and that the country has been “living in peace with our neighbors for more than 140 years.”
Brazil’s specific targeting in US surveillance practices prompted Rousseff’s government to announce that it intends to adopt both legislation and technology aimed at protecting itself and its businesses from the illegal interception of communications.
A week ago, Rousseff canceled an impending state visit to Washington, scheduled to take place in October, because of indignation over spying revelations. Rousseff has stated she wants an apology from Obama and the United States.
The revelations that the US National Security Agency has been intercepting Rouseff’s own phone calls and e-mails, in addition to those of her aides and officials at state-controlled oil and gas firm Petrobras, have prompted an outcry in Brazil.
Rousseff’s predecessor as Brazilian President, Lula da Silva, said earlier this month that Obama should “personally apologize to the world.” Lula accused the US of “thinking that it can control global communications and ignore the sovereignty of other countries” in an interview with India’s English-language daily The Hindu, published Sept. 10.
Latin America voices widespread indignation at US activities
US relations with all of Latin America have recently soured. In addition to Brazil, Mexico, Bolivia and Venezuela have all voiced anger with the US over the NSA’s surveillance of their countries this year. Bolivia has been especially bitter.
“I would like to announce that we are preparing a lawsuit against Barack Obama to condemn him for crimes against humanity,” President Morales told reporters Friday in the Bolivian city of Santa Cruz. He branded the US president as a “criminal” who had violated international law.
In early July, a plane carrying Morales from Moscow to the Bolivian capital, La Paz, was grounded for 13 hours in Austria after it was banned from European airspace because of US suspicions it was carrying fugitive Edward Snowden, the former NSA contractor who has been responsible for the majority of leaks regarding NSA spying practices since June.
Venezuela wrote to UN Secretary-General Ban Ki-moon at the end of last week, requesting that he take action in response to the apparent denial of US visas to some members of the Venezuelan delegation who were scheduled to attend the UN General Assembly in New York.
President Nicolas Maduro said that the denial seemed intended to “create logistical obstacles to impede” the visit, and further requested that the UN “demand that the government of the US abide by its international obligations” as host of the 68th UN General Assembly.
Tension between Venezuela and the US rose Thursday when Venezuela’s foreign minister, Elias Jaua, told media outlets that the US had denied a plane carrying Maduro entrance into its airspace. The aircraft was en route to China. Washington later granted the approval, stating that Venezuela’s request had not been properly submitted. Jaua denounced the move as “an act of aggression.”
Related article
EU ‘not satisfied’ with US spying answers, says top official
Press TV – September 24, 2013
The European Union is “not satisfied” with Washington’s answers on revelations that the US spied on international bank transfers, a top official says.
“I’m not satisfied with what we have gotten so far,” said EU Home Affairs Commissioner Cecilia Malmstrom during a hearing at the European Parliament on Tuesday.
She added, “I will be seeking exhaustive explanations, comprehensive information.”
The revelations that US National Security Agency (NSA) widely monitors international payments and financial transactions was reported by the German magazine Der Spiegel on September 16 and stems from leaked documents by US whistleblower Edward Snowden.
Malmstrom wrote in a recent letter to US Terrorism and Financial Intelligence Under Secretary David Cohen that “should the facts in these press reports be confirmed, they would further weaken the confidence between the EU and the US and would undoubtedly impact on our cooperation in the field of counter-terrorism.”
Since the disclosure, there have been calls by EU lawmakers for the suspension of a data-sharing agreement between the EU and the US. The deal grants Washington access to data from the SWIFT network used by thousands of banks to send transaction information securely.
“There have been very severe allegations in the press,” said Malmstrom adding, “If these allegations are true, they constitute a breach of the agreement and a breach of the agreement can certainly lead to a suspension.”
Malmstrom warned already in July, prior to the bank transfer disclosure, that the EU could reconsider financial data sharing agreements with the US if it was determined that the accords have not been executed “in full compliance with the law.”
The privacy violations were first revealed by Snowden in June. He leaked confidential information that showed the NSA collects data of phone records and Internet communication in the US and Europe as well as other countries.
Wounded Canadian veterans pressed to not criticize military on social media
RT | September 21, 2013
The Canadian Armed Forces requires physically and mentally wounded service members to sign a form agreeing to not criticize senior officers or demoralize other troops on social media sites.
The form is given to wounded soldiers transferred to the Joint Personnel Support Unit (JPSU), which oversees support centers for troops across Canada. The JPSU has received public scrutiny in recent months, as soldiers and staff have been vocal about the lack of resources and dysfunctional support centers.
Service members gave the social media policy form to the Ottawa Citizen, expressing dissatisfaction over what they saw as a threat to their right to voice criticism of the Department of National Defence and Canadian Armed Forces (CAF) for lackluster care.
The JPSU told the Ottawa Citizen that the policy was not made to defer criticism of officials, but rather “to educate our members and personnel on what constitutes the appropriate and inappropriate use of social media and the possible ramifications for a CAF member.”
The “policy on proper comments on social media” forbids posting secret information on websites or forums, but also advises military personnel to avoid disparaging senior officers or CAF members.
In addition, the policy tells service members not to “write anything that might discourage others or make them dissatisfied with their conditions or their employment,” nor to offer “your views on any military subject.”
The policy form indicates that violating the social media rules could damage public trust in the CAF and “destroy team cohesion.”
The form, only six months old, mentions that soldiers in the JPSU can also be held responsible for social media content of friends they have “tagged” on Facebook, Twitter, LinkedIn, blogs and other sites.
While the CAF has a general social media policy for all service members, the Ottawa Citizen said that all personnel they interviewed were never made to sign a form like the one given to JPSU soldiers.
The CAF responded to questions about the form, saying the policy is issued to all JPSU members. However, the spokesperson could not offer specific examples of improper social media use.
“It is important for all CAF members to understand and follow the policies, rules, regulations and standards of conduct that apply to members of the CAF, including the policy on the use of social media,” public affairs officer Navy Lt. Michèle Tremblay wrote to the Ottawa Citizen.
Members of the Canadian military “are encouraged to communicate publicly about their own experiences and expertise, in accordance with the Government of Canada and DND/CAF policy,” Tremblay noted.
If a service member refuses to sign, JPSU staff will note that the individual has been briefed about the unit’s social media policy. Various units have their own way of notifying personnel about CAF protocols, Tremblay said.
“The difference being that the JPSU is asking members to indicate that they have read and understood the policy by signing the form,” she said.
Former CAF officers see the form as a way to intimidate members who were injured for speaking up about substandard treatment.
“It’s not illegal but it’s obviously a threat,” said Ottawa lawyer and former military officer Michel Drapeau, who has represented injured soldiers seeking benefits from the Canadian government. “The criticism about the leadership’s failure to take care of the wounded is obviously hitting home.”
He said that personnel likely feel compelled to sign, and that it would certainly be used against them if they violated the policy.
Retired air force officer Sean Bruyea said the CAF has the right to steer service members’ behavior on social media, but says the JPSU effort goes too far.
“This is right out of something you would see during the Soviet era,” said Bruyea, a critic of how the military and government assists wounded personnel. “This is way over the top.”
Surveillance at the United Nations
By Danny O’Brien and Katitza Rodriguez | EFF | September 17, 2013
The surveillance scandal has now reached the United Nation’s Human Rights Council, which opened its 24th session last week to a volley of questions about privacy and spying, many of them targeted at the United States and United Kingdom. (That’s perhaps not surprising, since U.N. representatives were among those listed as being monitored by the NSA and GCHQ).
The opening statement by the eminent South African human rights lawyer Navi Pillay (now the U.N.’s High Commissioner for Human Rights) warned of the “broad scope of national security surveillance in countries, including the United States and United Kingdom,” and urged all countries to “ensure that adequate safeguards are in place to prevent security agency overreach and to protect the right to privacy and other human rights.” On September 13, the German Ambassador Schumacher delivered a joint statement on behalf of Austria, Germany, Liechtenstein, Norway, Switzerland and Hungary expressing their concern about the consequences of “surveillance, decryption and mass data collection.”
One part of the potential solution to those concerns will be officially launched this Friday in a Human Rights Council side-meeting on digital privacy hosted by these same concerned countries: the International Principles on the Application of Human Rights to Communications Surveillance.
For over a year, EFF has been working with other civil liberties groups to develop these principles that spell out how existing human rights law applies to modern digital surveillance. The 13 Principles — which have been signed by 258 organizations across the world— also provide a benchmark that people around the world can use to evaluate and push for changes in their own surveillance laws. For this 24th session, EFF has joined RSF and APC in a joint written submission to the HRC, advocating for these checks and balances.
The Human Rights Council isn’t the only diplomatic venue at the United Nations where complaints about the United States’ surveillance practices are being heard. The Human Rights Committee is also set to scrutinize the United States on its compliance with Article 17 (right to privacy) of the International Coventant on Civil and Political Rights. The United States’ written response to Human Rights Committee has already laid out its diplomatic response in favor of the Patriot and FISA provisions. It notably dodges the key question that is emerging from other countries regarding these programs: if the U.S. government cannot rein in its domestic surveillance program, riven as it is with constitutional and statutory problems, just how much worse are the controls on the surveillance of non-US persons?
More directly relevant to the diplomatic community is a connected question: how can the United States accuse, with a straight face, other countries of undermining “Internet Freedom” through the use of malware and mass spying, when it seems that there are precious few internal limits to what its own security services are permitted to do in the same arena?
This is not just a matter of the United States’ international reputation. The greatest risk to the Internet in the international arena right now lies in the formation of an unholy alliance between countries who are already seeking excuses to spy and censor the net and those, like the United States, who have previously argued against such practices, but are now having to defend their own surveillance excesses with similar language.
Without promising substantive reform at home, the U.S. and the U.K. risk alienating their own allies at the United Nations, while granting a carte blanche for other countries to pursue a repressive Internet agenda abroad. The Western countries implicated in the NSA scandal should grab onto the full set of principles as a liferaft: a way that they can show a commitment to transparency and proportionality in a way that obliges other countries to follow the same standards. Otherwise, the U.S. and the U.K. will be seen as having started a race to the bottom of privacy standards: a race too many other countries will be happy to join.
Court Reveals ‘Secret Interpretation’ Of The Patriot Act, Allowing NSA To Collect All Phone Call Data
By Mike Masnick | Techdirt | September 17, 2013
The FISA Court (FISC) today released a heavily redacted version of its July ruling approving the renewal of the bulk metadata collection on all phone calls from US phone providers under Section 215 of the Patriot Act. This is part of the “secret interpretation” as to how the FISC interprets the Patriot Act’s “business records” or “tangible things” section to mean that the government can order a telco to turn over pretty much all records — even as the very author of the law says it was written specifically to not allow this interpretation.
Much of the ruling is pretty much what you’d expect, given the way defenders of this program have been insisting that this is all very legal. It argues that Smith v. Maryland show that there are no privacy protections in data given to your telco. It goes on at length defending the third party doctrine, arguing that because some third party holds your data, you have no expectation of privacy. As many have argued, this is a ridiculous and antiquated view of the third party doctrine, not at all consistent with modern technology, but the FISC repeats it without question. While some have pointed out that even if single points of metadata might not be privacy violating, collecting all of them creates a new problem, the court rejects that entirely.
From there, there’s a big discussion of whether or not “there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” This is a big part of where the concern lies. How can the government defend the claim that all records are “relevant to an authorized investigation.” Here, the court compares the order to the Stored Communications Act (SCA), which lets the government get access to records as well. And then the word games begin. Basically, it argues that because one law requires “specific and articulable facts” and that the information must be “material,” while the other (the PATRIOT Act) does not, then the government doesn’t need specific and articulable facts. Rather it just needs “a statement of facts showing there are reasonable grounds to believe that the records are relevant to the investigation.”
For non-content records production requests, such as the type sought here, Section 2703(c) provides a variety of mechanisms, including acquisition through a court order under Section 2703(d). Under this section, which is comparable to Section 215, the government must offer to the court “specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought, are relevant and material to an ongoing criminal investigation.” 2703(d) (emphasis added). Section 215, the comparable provision for foreign intelligence purposes, requires neither “specific and articulable facts” nor does it require that the information be “material.” Rather, it merely requires a statement of facts showing that there are reasonable grounds to believe that the records sought are relevant to the investigation. 50 U.S.C. That these two provisions apply to the production of the same type of records from the same type of providers is an indication that Congress intended this Court to apply a different, and in specific respects lower, standard to the government’s Application under Section 215 than a court reviewing a request under Section 2703(d). Indeed, the Act version of FISA’s business records provision required “specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power.” 50 U.S.C. §1862(b)(2)(B) as it read on October 25, 2001. In enacting Section 215, Congress removed the requirements for “specific and articulable facts” and that the records pertain to “a foreign power or an agent of a foreign power.” Accordingly, now the government need not provide specific and articulable facts, demonstrate any connection to a particular suspect, nor show materiality when requesting business records under Section 215. To find otherwise would be to impose a higher burden — one that Congress knew how to include in Section 215, but chose to dispense with.
Also, it argues that since Section 215 allows recipients of the order to challenge them and no telco ever has that this lends it to believe there are no problems with the law.
Second, Section 2703(d) permits the service provider to file a motion with a court to “quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause undue burden on such provider.” Congress recognized that, even with the higher statutory standard for a production order under Section 2703(d), some requests authorized by a court would be “voluminous” and provided a means by which the provider could seek relief using a motion. Under Section 215, however, Congress provided a specific and complex statutory scheme for judicial review of an Order from this Court to ensure that providers could challenge both the legality of the required production and the nondisclosure provisions of that Order. 50 U.S.C. §1861(f). This adversarial process includes the selection of a judge from a pool of FISC judges to review the challenge to determine if it is frivolous and to rule on the merits, provides standards that the judge is to apply during such review, and provides for appeal to the Foreign Intelligence Surveillance Court of Review and, ultimately, the U.S. Supreme Court. This procedure, as opposed to the motion process available under Section 2703(d) to challenge a production as unduly voluminous or burdensome, contemplates a substantial and engaging adversarial process to test the legality of this Court’ Orders under Section 215. This enhanced process appears designed to ensure that there are additional safeguards in light of the lower threshold that the government is required to meet for production under Section 215 as opposed to Section 2703(d). To date, no holder of records who has received an Order to produce bulk telephony metadata has challenged the legality of such an Order. Indeed, no recipient of any Section 215 Order has challenged the legality of such an Order, despite the explicit statutory mechanism for doing so.
Basically, the court says “why of course there’s an adversarial process” to protect users’ privacy. It just depends on Verizon or AT&T taking up the fight on behalf of their users, and they haven’t done so, so let’s just assume everyone’s okay with this. That’s kind of crazy when you think about it. Admittedly, the public should be up in arms that Verizon and AT&T appear to have no interest in challenging these broad collections of data, but that hardly makes them constitutional.
From there we move onto the interpretation of how this massive data collection could possibly be seen as “relevant.” First, it notes (as mentioned above) that the government doesn’t need to prove that the data is actually relevant. Just that it has reasonable grounds to believe that they are relevant.
As an initial matter and as a point of clarification, the government’s burden under Section 215 is not to prove that the records sought are, in fact, relevant to an authorized investigation. The explicit terms of the statute require “a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant.
Then it basically says that because the NSA can sniff out terrorists within a giant database, that makes the entire database relevant. Really.
This Court has previously examined the issue of relevance for bulk collections. See; [REDACTED] While those matters involved different collections from the one at issue here, the relevance standard was similar…. (“[R]elevant to an ongoing investigation to protect against international terrorism….”). In both cases, there were facts demonstrating that information concerning known and unknown affiliates of international terrorist organizations was contained within the non-content metadata the government sought to obtain. As this Court noted in 2010, the “finding of relevance most crucially depended on the conclusion that bulk collection is necessary for NSA to employ tools that are likely to generate useful investigative leads to help identify and track terrorist operatives.” [REDACTED] Indeed, in [REDACTED] this Court noted that bulk collections such as these are “necessary to identify the much smaller number of [international terrorist] communications.’ [REDACTED] As a result, it is this showing of necessity that led the Court to find that “the entire mass of collected metadata is relevant to investigating [international terrorist groups] and affiliated persons.” [REDACTED]
It then applies those previous, redacted-named rulings, to this case, repeating the DOJ’s own filing saying “all of the metadata collected is thus relevant, because the success of this investigative tool depends on bulk collections.”
That’s ridiculous and tautological. You could argue that the “success” of a program designed to stop crimes “depends on” putting cameras inside everyone’s home, but that doesn’t make it any less a violation of privacy. It also hardly makes the collection of all such data “relevant.”
The FISC continues to tap dance on the grave of the 4th Amendment:
The government depends on this bulk collection because if production of the information were to wait until the specific identifier connected to an international terrorist group were determined, most of the historical connections (the entire purpose of this authorization) would be lost. The analysis of past connections is only possible “if the Government has collected and archived a broad set of metadata that contains within it the subset of communications that can later be identified as terrorist-related.” Because the subset of terrorist communications is ultimately contained within the whole of the metadata produced, but can only be found after the production is aggregated and then queried using identifiers determined to be associated with identified international terrorist organizations, the whole production is relevant to the ongoing investigation out of necessity.
Once again, that makes no sense. First off, just because you can put together all this aggregate data and use it to find criminals and terrorists doesn’t automatically make it legal. Once again, I’m sure that having cameras in everyone’s homes would allow similar capturing of illegal behavior. But that doesn’t make it legal. Second, the argument that without this metadata collection the information would be “lost” is clearly untrue. As was just revealed a few weeks ago, AT&T has employees embedded with the DEA who are willing, ready and able to do deep dive searches on decades worth of phone records (even beyond AT&T). The data isn’t lost. They’re available via AT&T employees who are working right alongside government employees.
Incredibly, the FISC then claims that the mere claim that terrorists use the phone system is enough to show that all phone records are relevant.
The government must demonstrate “facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation.” The fact that international terrorist operatives are using telephone communications, and that it is necessary to obtain the bulk collection of a telephone company’s metadata to determine those connections between known and unknown international terrorist operatives as part of authorized investigations, is sufficient to meet the low statutory hurdle set out in Section 215 to obtain a production of records.
Except, almost nothing there makes sense. It’s not true that it is necessary to obtain bulk collection of the metadata to find those connections. And just because terrorists live in houses, we don’t say that it’s okay for law enforcement to search every house. Take this same argument and apply it to anything else and the 4th Amendment goes away entirely.
In short, this shows the serious problems with these efforts being non-adversarial. The FISC more or less buys the government’s argument at every single turn, even though there are multiple arguments for why the government’s position is either not true or, at the very least, misleading.
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The Maidan Killings and the False-Flag Case
By Freddie Ponton | 21st Century Wire | September 5, 2026
Before the killings that helped bring down Ukraine’s president in February 2014, American diplomats were discussing who should enter its government. In a leaked telephone call, senior State Department official Victoria Nuland told US ambassador Geoffrey Pyatt, “I think Yats is the guy,” referring to opposition leader Arseniy Yatseniuk. Washington had clear preferences and was working to advance them. Later that month, Yatseniuk became prime minister.
Ivan Katchanovski’s The Maidan Massacre in Ukraine examines the violence that preceded that transfer of power. Drawing on television footage, witness testimony, forensic examinations and Ukrainian court proceedings, he argues that elements of the opposition shot protesters and police in a false-flag operation. His case centres on evidence of protesters being shot from opposition-controlled locations, including Hotel Ukraina, overlooking the killing ground. … continue
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