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Hollow Privacy Promises from Major Internet Service Providers

By Jeremy Gillula and Kate Tummarello | EFF | April 18, 2017

It’s no surprise that Americans were unhappy to lose online privacy protections earlier this month. Across party lines, voters overwhelmingly oppose the measure to repeal the FCC’s privacy rules for Internet providers that Congress passed and President Donald Trump signed into law.

But it should come as a surprise that Republicans—including the Republican leaders of the Federal Communications Commission and the Federal Trade Commission—are ardently defending the move and dismissing the tens of thousands who spoke up and told policymakers that they want protections against privacy invasions by their Internet providers.

Since the measure was signed into law, Internet providers and the Republicans who helped them accomplish this lobbying feat have decried the “hysteria,” “hyperbole,” and “hyperventilating” of constituents who want to be protected from the likes of Comcast, Verizon, and AT&T. Instead they’ve claimed that the repeal doesn’t change the online privacy landscape and that we should feel confident that Internet providers remain committed to protecting their customers’ privacy because they told us they would despite the law.

We’ve repeatedly debunked the tired talking points of the cable and telephone lobby: There is a unique, intimate relationship and power imbalance between Internet providers and their customers. The FTC likely cannot currently police Internet providers (unless Congress steps in, which the White House said it isn’t pushing for at this time). Congress’ repeal of the FCC’s privacy rules does throw the FCC’s authority over Internet providers into doubt. The now-repealed rules—which were set to go into effect later this year—were a valuable expansion and necessary codification of existing privacy rights granted under the law. Internet providers have already shown us the creepy things they’re willing to do to increase their profits.

The massive backlash shows that consumers saw through those industry talking points, even if Republicans in Congress and the White House fell for them.

Now that policymakers have effectively handed off online privacy enforcement to the Internet providers themselves, advocates for the repeal are pointing to the Internet providers’ privacy policies.

“Internet service providers have never planned to sell your individual browsing history to third parties,” FCC Chairman Ajit Pai and FTC acting Chairwoman Maureen Ohlhausen wrote in a recent op-ed. “That’s simply not how online advertising works. And doing so would violate ISPs’ privacy promises.”

Aside from pushing back on oversimplification of the problem at hand, we should be asking: What exactly are the “privacy promises” that ISPs are making to their customers?

In blog posts and public statements since the rules were repealed, the major Internet providers and the trade groups that represent them have all pledged to continue protecting customers’ sensitive data and not to sell customers’ individual Internet browsing records. But how they go about defining those terms and utilizing our private information is still going to leave people upset. These statements should also be read with the understanding that existing law already allows the collection of individual browsing history.

Comcast said it won’t sell individual browsing histories and it won’t share customers’ “sensitive information (such as banking, children’s, and health information), unless we first obtain their affirmative, opt-in consent.” It also said it will offer an opt-out “if a customer does not want us to use other, non-sensitive data to send them targeted ads.” We think leaving browsing history out of the list of information Comcast considers sensitive was no accident. In other words, we don’t think Comcast considers your browsing history sensitive, and will only offer you an opt-out of using your browsing history to send you targeted ads. There’s no mention of any opt-out of any other sharing of your browsing history, such as on an aggregated basis with third parties. While we applaud Comcast’s clever use of language to make it seem like they’re protecting their customers’ privacy, reading between the lines shows that Comcast is giving itself leeway to do the opposite.

Verizon similarly pledged not to sell customers’ “personal web browsing history” (emphasis ours) and described its advertising programs that give advertisers access to customers based on aggregated and de-identified information about what customers do online. By our reading, this means Verizon still plans to collect your browsing history and store it—they just won’t sell it individually.

AT&T pointed to its privacy policies, which carve out specific protections for “personal information … such as your name, address, phone number and e-mail address” but explicitly state that it does deliver ads “based on the websites visited by people who are not personally identified.” So just like Verizon, we think this means AT&T is collecting your browsing history and storing it—they’re just not attaching your name to it and selling it to third parties on an individualized basis.

In a filing to the FCC earlier this year, CTIA—which represents the major wireless ISPs—argued that “web browsing and app usage history are not ‘sensitive information’” and said that ISPs should be able to share those records by default, unless a customer asks them not to.

The common thread here is that Internet providers don’t consider records about what you do online to be worthy of the heightened privacy protections they afford to things like your social security number. Internet providers think that our web browsing histories are theirs to profit off of—not ours to protect as we see fit. And because Congress changed the law, they are now free to change their minds about the promises they make without the same legal ramifications.

These “privacy promises” are in no way a replacement for robust privacy protections enforced by a federal agency. If Internet providers want to get serious about proving their commitment to their customers’ privacy in the absence of federal rules, they should pledge not to collect or sell or share or otherwise use information about the websites we visit and the apps we use, except for what they need to collect and share in order to provide the service their customers are actually paying for: Internet access.

That would be a real privacy promise.

April 19, 2017 Posted by | Civil Liberties, Deception, Timeless or most popular | , , , , | Leave a comment

‘Any Data They Can Intercept’: US Congress Will Let Companies Sell Browsing Data

Sputnik – 29.03.2017

Following in the Senate’s footsteps, the US House of Representatives has approved a piece of legislation that would allow massive telephone and cable companies to sell the data generated by internet users’ browsing habits.

On March 28, the US House narrowly passed a bill that analysts say is a huge win for the bloated telecommunications industry, and a commensurately large invasion on citizens’ privacy – or lack thereof. The resolution cleared its way through the lower chamber of the legislature by a 215-205 vote.

If US President Donald Trump signs the resolution into law, companies will legally be able to create profiles about every internet user, then sell those profiles to the highest bidder, the Electronic Frontier Foundation said in a statement.

“Considering how much access [internet service providers, or ISPs] already have to highly sensitive data, it is absolutely unacceptable for them to monetize personal information,” Representative Mike Pocan of Wisconsin said Tuesday.

The ability for service providers to collect “essentially any data they can intercept and read for themselves” was supposed to be an opt-in only policy, giving consumers a choice whether to disclose their data, but instead telecommunications companies will have the ability to generate revenue off of the public’s browsing habits, said Matt Erickson on Radio Sputnik’s By Any Means Necessary with Eugene Puryear. Erickson is a director with the Digital Privacy Alliance.

​”Google and Facebook collect large amounts of information in ways that should be very concerning to people,” Puryear said.

The news comes as a major setback for privacy advocates and a major victory for Comcast, TimeWarner, AT&T and Verizon, which “will have free rein to hijack your searches, sell your data, and hammer you with unwanted advertisements,” the EFF said.

What’s more, at a time when nearly every major financial institution, electrical utilities company, defense and aerospace firm, and governmental agency is seeking to bolster its cyber defense systems, there are a host of reasons to think that these new rules would be detrimental to the US’ collective cybersecurity.

By recording your traffic and building a profile about you, for instance, hackers gain a new target database to breach.

March 29, 2017 Posted by | Civil Liberties, Corruption | , , , , , , , | 1 Comment

Analog resistance: Activists protest CISA by faxing Congress

RT | July 28, 2015

Privacy activists are flooding Congress with messages of opposition to the cyber surveillance bill due to be considered by the Senate, using faxes rather than emails in order to poke fun at lawmakers’ antiquated understanding of technology and privacy.

Fight for the Future, a nonprofit fighting for privacy and against government surveillance, has set up a page dubbed “Operation: Fax Big Brother,” which lets anyone generate and customize a fax protesting the Cybersecurity Information Sharing Act (CISA). Each fax is then sent to all 100 Senators. The group has not said how many faxes have been sent so far.

CISA sailed through the Senate Intelligence Committee in March, with Oregon Democrat Ron Wyden being the sole dissenter. Senate is expected to take up a vote on the bill before the August 7 recess. A similar proposal, known as CISPA, was approved by the House of Representatives in 2013 but died in the Senate after public opposition compelled President Barack Obama to threaten a veto.

“Groups like Fight for the Future have sent millions of emails, and they still don’t seem to get it,” Evan Greer, the group’s campaign manager, told the Guardian. “Maybe they don’t get it because they’re stuck in 1984, and we figured we’d use some 80s technology to try to get our point across.”

According to the group, since 2012 civil liberties activists have sent hundreds of thousands of calls and tweets and over 2.6 million emails to Congress opposing overreaching cybersecurity laws. However, the fax stunt does not just have publicity value. Lawmakers often use analog technology like faxes and pagers in order to hide their digital tracks from Freedom of Information Act (FOIA) inquiries, claims a Senate staffer who spoke to the Guardian.

Sponsored by Senator Dianne Feinstein, a California Democrat, CISA seeks to enlist the support of corporations in collecting user data in the name of cybersecurity, providing them with liability protection if they share the data with federal agencies such as the NSA. Once they have the data, federal agencies would be able to share it freely with each other. What’s more, information shared with the government by the companies will be specifically exempt from FOIA disclosures.

Gabe Rottman, a legislative counsel with the American Civil Liberties Union, described the bill as a “new and vast surveillance authority that might as well be called Patriot Act 2.0 given how much personal information it would funnel to the NSA.”

The US Chamber of Commerce and a number of major corporations are backing the bill. In addition to Facebook and Google, Comcast and AT&T also favor CISA, as do Bank of America and Blue Cross Blue Shield Association.

Proponents of CISA have cited a spree of data breaches over the past year, from corporations such as Sony and healthcare provider Anthem to government agencies including the Department of State and Office of Personnel Management (OPM), as a reason to beef up cybersecurity. Critics have countered that CISA is not doing anything to protect networks from threats, and everything to vacuum up Americans’ data.

“With all these breaches, there’s a lot of fearmongering going on in DC,” says Fight for the Future’s Greer. “They just say: ‘This is a problem – we’ve got to do something!’ And this is the something they’re going to do. It’s not just that this won’t fix things – it’ll make them worse. And it’ll give sweeping legal immunity to some of the largest companies in the world and open us all up to new forms of surveillance.”

July 28, 2015 Posted by | Civil Liberties, Full Spectrum Dominance, Solidarity and Activism | , , , , , , , | 1 Comment

AT&T’s First Transparency Report Reveals Warrantless Demands for Customer Data

By Matthew Cagle | ACLU | February 19, 2014

In the wake of our shareholder advocacy, AT&T has now joined Verizon and released its first transparency report. AT&T’s report shows how federal, state, and local governments have requested large volumes of customer information, typically without a warrant. While we welcome AT&T’s move, the American public remains in the dark about a lot of what’s happening behind the scenes. Greater transparency is still needed from AT&T and the federal government.

Here’s a breakdown of the many demands AT&T received in 2013. As we have long suspected, the vast majority of these demands lacked a warrant:

  • AT&T received 301,816 demands related to criminal and civil litigation. Only 16,685 of these demands included a warrant based on probable cause.
  • AT&T received 223,659 subpoenas for customer information. This is significantly more than the 164,184 subpoenas Verizon received during the same period.
  • AT&T received 37,839 demands for location information. At least 21,000 of these demands lacked a warrant. AT&T’s full report says a warrant is “almost always required to obtain real-time location information.”
  • AT&T also received 1,034 demands for “cell tower searches” last year, some of them compelling the company to identify the numbers of all phones that connected to a specific cell tower during a given period of time. Cell tower information is ripe for misuse—we know of at least one instance where a cell tower request was made for all phones within the vicinity of a planned labor protest.

AT&T also included information on national security requests (though, not the complete story):

  • AT&T reported receiving between 2,000 and 3,000 National Security Letters (NSLs) from the federal government for customer information including name, address, length of service, and toll billing records. NSLs do not require prior approval from courts and the government has been criticized for misusing them. 4,000 to 4,999 AT&T customers were affected by NSLs last year. Note: Verizon has not yet revealed how many customers were affected by the NSLs it received.
  • AT&T also released information about federal government demands for customer content under the Foreign Intelligence Surveillance Act (FISA), demands that may result in government access to the telephone and Internet communications of US citizens and persons abroad. For the first six months of 2013, AT&T received 0-999 requests for content that ultimately affected 35,000-35,999 customers. In fact, more AT&T customers were affected by FISA content requests in the first half of 2013 than the combined number of Facebook, Google, and Microsoft customers affected by the same sort of requests during that period.
  • Unfortunately, the report omits important information on the metadata that the government reportedly obtains from AT&T under the call records program (currently being challenged by the ACLU in federal court). Phone metadata includes the phone numbers of parties to a conversation, a call’s duration, and device identifiers—information that can paint a very detailed picture of private lives. We know that the government justifies its access to phone metadata with a section of the FISA law, yet AT&T’s report states that only 0-999 customers were affected by such “non-content” requests. On its own, this lack of detail misleads the millions of AT&T customers whose phone metadata may be subject to these demands.

In addition to a clearer explanation of national security requests, we hope that AT&T’s future reports will also address the following shortcomings:

  • The current report does not include the number of customers or individuals affected by all of the government demands. The company claims that it is “difficult” to tally this information.
  • The report does not describe statistics on how often AT&T complies with demands.
  • This report includes very limited information about demands from foreign governments.

AT&T’s transparency report, limited in what it reveals, also highlights just how essential it is for privacy laws to be updated in both the national security and law enforcement contexts. Technology has advanced exponentially and our privacy laws are still in the digital dark ages, enabling the government to engage in a largely unsupervised shopping spree of the personal data held by AT&T and other companies. This is why you should tell your member of Congress to support the USA Freedom Act and an update to the federal Electronic Communications Privacy Act. We also urge AT&T to play a larger role by pushing for greater transparency, including far more detail in its future reports, and advocating for stronger privacy protections.  

Matthew Cagle is a Volunteer Attorney for Technology and Civil Liberties with the ACLU of Northern California.

Copyright 2014 American Civil Liberties Union of Northern California
Reprinted with permission of the American Civil Liberties Union of Northern California http://www.aclunc.org

February 21, 2014 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , , , | Leave a comment

Outdated Electronic Privacy Laws Allow Police to Access Sensitive Data Without a Warrant

ACLU | December 9, 2013

WASHINGTON – Law enforcement requests for a variety of cellphone users’ data continued to surge in 2012, according to responses from the nation’s major cellphone carriers prompted by inquiries from Sen. Edward Markey (D-Mass.).

Last year alone, AT&T and T-Mobile documented 600,000 requests for customer information made by local, state, and federal law enforcement. Verizon, in its response to Sen. Markey’s request, said that police requests for customers’ call records have approximately doubled over the last five years. Often, no warrant is required to compel cellphone carriers to turn over their customers’ information to police.

“Have no doubt, police see our mobile devices as the go-to source for information, likely in part because of the lack of privacy protections afforded by the law,” said Christopher Calabrese, legislative counsel at the ACLU’s Washington Legislative Office. “Our mobile devices quite literally store our most intimate thoughts as well as the details of our personal lives. The idea that police can obtain such a rich treasure trove of data about any one of us without appropriate judicial oversight should send shivers down our spines.”

The companies’ responses to Sen. Markey’s office also show that law enforcement conducts real-time surveillance of targets’ web browsing habits. According to AT&T’s letter, the company allows law enforcement to do “real time web browsing surveillance.” Police are also requesting “tower dumps,” whereby cellphone companies give law enforcement the records of all cellphone users who have connected to a particular cellphone tower in a given time range.

“There is an easy fix to part of this problem,” said Calabrese. “President Obama and members of Congress should pass legislation that updates our outdated privacy laws by requiring law enforcement to get a probable cause warrant before service providers disclose the contents of our electronic communications to the government. Anything less is unnecessarily invasive and un-American.”

Currently there are many proposals in Congress to reform the Electronic Communications Privacy Act (ECPA). Passed in 1986 before widespread usage of email or the existence of Internet-connected mobile devices, ECPA allows law enforcement agencies to obtain electronic communications content older than 180 days—including text messages—without a warrant. The ACLU supports bipartisan ECPA reform legislation introduced by Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) in the Senate and Reps. Kevin Yoder (R-Kan.) and Jared Polis (D-Colo.) in the House, which would require police obtain a warrant before compelling service providers to divulge the contents of their customers’ electronic communications.

Wireless carriers’ responses to Sen. Markey are available at:
markey.senate.gov/Markey_Receives_Responses_from_Wireless_Carriers_on_Law_Enforcement_Requests.cfm

More information on ECPA reform is available at:
aclu.org/technology-and-liberty/modernizing-electronic-communications-privacy-act-ecpa

December 9, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , | Leave a comment

How NSA Mass Surveillance is Hurting the US Economy

By Trevor Timm | EFF | November 25, 2013

Privacy may not be the only casualty of the National Security Agency’s massive surveillance program. Major sectors of the US economy are reporting financial damage as the recent revelations shake consumer confidence and US trade partners distance themselves from companies that may have been compromised by the NSA or, worse, are secretly collaborating with the spy agency. Members of Congress, especially those who champion America’s competitiveness in the global marketplace, should take note and rein in the NSA now if they want to stem the damage.

The Wall Street Journal recently reported that AT&T’s desired acquisition of the European company Vodafone is in danger due to the company’s well-documented involvement in the NSA’s data-collection programs. European officials said the telecommunications giant would face “intense scrutiny” in its bid to purchase a major cell phone carrier.  The Journal went on to say:

“Resistance to such a deal, voiced by officials in interviews across Europe, suggests the impact of the NSA affair could extend beyond the diplomatic sphere and damage US economic interests in key markets.”

In September, analysts at Cisco Systems reported that the fallout “reached another level,” when the National Institute of Standards and Technology (NIST) told companies not to use cryptographic standards that may have been undermined by the NSA’s BULLRUN program. The Cisco analysts said that if cryptography was compromised “it would be a critical blow to trust required across the Internet and the security community.”

This forecast was proven true in mid-November, when Cisco reported a 12 percent slump in its sales in the developing world due to the NSA revelations. As the Financial Times reported, new orders fell by 25 percent in Brazil and 30 percent in Russia and Cisco predicts its overall sales could drop by as much 10 percent this quarter.  Cisco executives were quoted saying the NSA’s activities have created “a level of uncertainty or concern” that will have a deleterious impact on a wide-range of tech companies.

It is hard for civil libertarians to shed tears over AT&T losing business because of NSA spying, considering the company allowed the NSA to directly tap into its fiber optic cables to copy vast amounts of innocent Americans’ Internet traffic.  AT&T was also recently revealed as having partnered with both the DEA and the CIA on separate mass surveillance programs. It is also hard to feel sorry for Cisco, which stands accused of helping China spy on dissidents and religious minorities. But the fact that the spying is hurting these major companies is indicative of the size of the problem.

This summer, European Parliament’s civil liberties committee was presented with a proposal to require every American website to place surveillance notices to EU citizens in order to force the US government to reverse course:

“The users should be made aware that the data may be subject to surveillance (under FISA 702) by the US government for any purpose which furthers US foreign policy. A consent requirement will raise EU citizen awareness and favour growth of services solely within EU jurisdiction. This will thus have economic impact on US business and increase pressure on the US government to reach a settlement.” [emphasis ours]

Meanwhile, Telenor, Norway’s largest telecom provider has reportedly halted its plans to move its customers to a US-based cloud provider. Brazil seems to be moving ahead to create its own email service and require US companies locate an office there if they wish to do business with Brazilian customers.

Laws like this mean that companies like Google “could be barred from doing business in one of the world’s most significant markets,” according to Google’s director for law enforcement and information security at Google, Richard Selgado. Google has been warning of this as far back as July, when in FISA court documents it argued that the continued secrecy surrounding government surveillance demands would harm its business.

Many commentators have been warning about the economic ramifications for months. Princeton technologist Ed Felten, who previously at the Federal Trade Commission, best explained why the NSA revelations could end up hurting US businesses:

“This is going to put US companies at a competitive disadvantage, because people will believe that U.S. companies lack the ability to protect their customers—and people will suspect that U.S. companies may feel compelled to lie to their customers about security.”

The fallout may worsen. One study released shortly after the first Edward Snowden leaks said the economy would lose $22 to $35 billion in the next three years. Another study by Forrester said the $35 billion estimate was too low and pegged the real loss figure around $180 billion for the US tech industry by 2016.

Much of the economic problem stems for the US government’s view that it’s open season when it comes to spying on non-U.S. persons. As Mark Zuckerberg said in September, the government’s position is“don’t worry, we’re not spying on any Americans. Wonderful, that’s really helpful for companies trying to work with people around the world.” Google’s Chief Legal Officer David Drummond echoed this sentiment last week, saying:

“The justification has been couched as ‘Don’t worry. We’re only snooping on foreigners.’ For a company like ours, where most of our business and most of our users are non-American, that’s not very helpful.”

Members of Congress who care about the US economy should take note: the companies losing their competitive edge due to NSA surveillance are mainstream economic drivers. Just as their constituents are paying attention, so are the customers who vote with their dollars. As Sen. Ron Wyden remarked last month, “If a foreign enemy was doing this much damage to the economy, people would be in the streets with pitchforks.”

November 26, 2013 Posted by | Civil Liberties, Corruption, Deception, Economics, Full Spectrum Dominance | , , , , , , | Leave a comment

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.

September 18, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , | Comments Off on Court Reveals ‘Secret Interpretation’ Of The Patriot Act, Allowing NSA To Collect All Phone Call Data

AT&T joins Verizon, Facebook in selling customer data

RT | July 6, 2013

AT&T has announced that it will begin selling customers’ smart phone data to the highest bidder, putting the telecommunications giant in line with Verizon, Facebook and other competitors that quietly use a consumer’s history for marketing purposes.

The company claims its new privacy policy, to be updated within “the next few weeks,” exists to “deliver more relevant advertising” to users based on which apps they use and their location, which is provided by GPS-tracking. Apparently recognizing the natural privacy concerns a customer might have, AT&T assured the public that all data would be aggregated and made anonymous to prevent individual identification.

A letter to customers, for instance, described how someone identified as a movie fan will be sent personalized ads for a nearby cinema.

“People who live in a particular geographic area might appear to be very interested in movies, thanks to collective information that shows wireless devices from that area are often located in the vicinity of movie theaters,” the letter states. “We might create a ‘movie’ characteristic for that area, and deliver movie ads to the people who live there.”

A June 28 blog post from AT&T’s chief privacy officer Bob Quinn said the new policy will focus on “Providing You Service and Improving Our Network and Services,” but the online reaction has been overwhelmingly negative, with many customers looking for a way to avoid the new conditions.

“You require that we allow you to store a persistent cookie of your choosing in our web browsers to opt out,” one person wrote. “No mention of how other HTTP clients, such as email clients, can opt out. If you really did care about your customers, you would provide a way for us to opt out all traffic to/from our connection and mobile devices in one easy setting.”

One problem for any customer hoping for a new service is the lack of options, smartphone or otherwise. Facebook, Google, Twitter and Verizon each store consumer data for purposes that have not yet been made clear. And because of the profit potential that exists when a customer blindly trusts a company with their data, small Internet start-ups, including AirSage and many others, have developed a way to streamline information into dollars.

The nefarious aspect of AT&T’s announcement is underscored by the recent headlines around the National Security Agency, which has spent years has compelling wireless corporations to hand over data collected on millions of Americans. Unfortunately for the privacy of those concerned, AT&T’s new policy may only be a sign of things to come.

“Instead of merely offering customers a trusted conduit for communication, carriers are coming to see subscribers as sources of data that can be mined for profit, a practice more common among providers of free online services like Google and Facebook,” the Wall Street Journal wrote about the matter in May.

July 7, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , , , , , , | Comments Off on AT&T joins Verizon, Facebook in selling customer data

The Government Wants A Backdoor Into Your Online Communications

By Mark M. Jaycox and Seth Schoen | EFF | May 22, 2013

According to the New York Times, President Obama is “on the verge of backing” a proposal by the FBI to introduce legislation dramatically expanding the reach of the Communications Assistance for Law Enforcement Act, or CALEA. CALEA forces telephone companies to provide backdoors to the government so that it can spy on users after obtaining court approval, and was expanded in 2006 to reach Internet technologies like VoIP. The new proposal reportedly allows the FBI to listen in on any conversation online, regardless of the technology used, by mandating engineers build “backdoors” into communications software. We urge EFF supporters to tell the administration now to stop this proposal, provisionally called CALEA II.

The rumored proposal is a tremendous blow to security and privacy and is based on the FBI’s complaint that it is “Going Dark,” or unable to listen in on Internet users’ communications. But the FBI has offered few concrete examples and no significant numbers of situations where it has been stymied by communications technology like encryption. To the contrary, with the growth of digital communications, the FBI has an unprecedented level of access to our communications and personal data; access which it regularly uses. In an age where the government claims to want to beef up Internet security, any backdoors into our communications makes our infrastructure weaker.

Backdoors also take away developers’ right to innovate and users’ right to protect their privacy and First Amendment-protected anonymity of speech with the technologies of their choice. The FBI’s dream of an Internet where it can listen to anything, even with a court order, is wrong and inconsistent with our values. One should be able to have a private conversation online, just as one can have a private conversation in person.

The White House is currently debating whether or not to introduce the bill. Here’s why it shouldn’t:

There’s Little Darkness: Few Investigations Have Been Thwarted

The starting point for new legislation should be a real, serious, and well-documented need. Despite the FBI’s rhetoric, there are few concrete examples of the FBI’s purported need to expand its already efficient all-seeing eye. Current law requires annual reporting by the Department of Justice (DOJ) regarding the use of the government’s wiretapping powers; the report includes statistics on how often Federal law enforcement has been impeded in a court-authorized investigation by encryption or has been unable to access communications. These statistics show that this has happened only rarely. In its most recent report—from 2010—DOJ reported that encryption had only been encountered all of 12 times.

Did the encryption stop the investigation, or even prevent the wiretappers from figuring out what was being said? No. The report admits that in all of these instances, police were able to obtain the plain text of communications. Previous years’ numbers are similar. Aside from government reports, in 2012 telecommunications companies also revealed that a very low percentage of law enforcement requests for user information were rejected. In AT&T’s case, only 965 out of over 250,000 requests for user information were rejected. Overall, the available public statistics don’t appear to support the FBI’s claims about its inability to access communications.

Law Enforcement Already Has Unprecedented Access

Any requested expansion of FBI surveillance authority has to consider the overall ability of law enforcement to investigate crimes. What the FBI doesn’t mention when pushing new backdoors into our communications is that now, due to the shift to digital communications, law enforcement has an unprecedented level of access to, and knowledge of, the public’s communications, relationships, transactions, whereabouts, and movements. Law enforcement now can gain 24/7 monitoring of most people’s movements using cell phone location data. But that’s just the beginning. A glance at the Wall Street Journal‘s multi-year What They Know project shows some of the treasure troves of data that are being maintained about all of us. By accessing these databases and by using new electronic surveillance technologies law enforcement already has visibility into almost every aspect of our online and offline lives—capabilities beyond the wildest dreams of police officers just a few decades ago.

Indeed, former White House Chief Counselor for Privacy Peter Swire and Kenesa Ahmad argued persuasively in 2011 that, overall, “today [is] a golden age for surveillance“—regardless of whether law enforcement is assured of automatic access to each and every kind of communication, and regardless of whether individuals sometimes succeed in using privacy technologies to protect themselves against some kinds of surveillance.

First, there’s information obtained from cell phones. In July 2012, the New York Times reported that federal, state, and local law enforcement officials had requested all kinds of cell phone data—including mappings of suspects’ locations—a staggering 1.3 million times in the previous year. Cell phone companies can create what amounts to detailed maps of our locations and turn them over to law enforcement. Even without asking for cell phone providers’ direct assistance, law enforcement has considerable ability to use mobile devices to track us. Federal and state law enforcement have made extensive use of IMSI catchers (also popularly called “stingrays,” after the brand name of one such device). These devices can act as a fake cell phone tower, observing all devices in a certain area to find a cell phone’s location in real-time, and perhaps even intercept phone calls and texts.

Laws compelling companies to divulge user information accompany these techniques. For instance, National Security Letters, served on communications service providers like phone companies and ISPs, allow the FBI to secretly demand stored data about ordinary Americans’ private communications and Internet activity without any meaningful oversight or prior judicial review. And Section 215 of the PATRIOT Act allows for secret court orders to collect “tangible things” that could be relevant to a government investigation. The list of possible “tangible things” the government can obtain is seemingly limitless, and could include everything from driver’s license records to Internet browsing patterns. The FBI has even broken into individuals’ computers to collect data from inside the computers themselves. More backdoors aren’t needed.

Backdoors Make Us Weaker and More Vulnerable

CALEA II will force companies with messaging services—from Google to Twitter to video game developers—to insert backdoors into their platforms. But backdoors only make us weaker and more vulnerable. It’s ironic that CALEA II may be proposed only months after Congress pushed “cybersecurity” legislation to protect our networks. The notion of mandating backdoors in software is the antithesis of online security, which is why some academics have called it a “ticking time bomb.”

A proposal to expand backdoors into communications software ensures that online hackers, communications company insiders, and nation-states have a direct entrance to attack—and steal from—companies and government agencies. In one notorious example, someone exploited backdoors in a Greek phone company’s systems and recorded sensitive conversations involving the Prime Minister. Wiretapping backdoors even affect national security. In 2012, Wired revealed the NSA’s discovery and concern that every telephone switch for sale to the Department of Defense had security vulnerabilities due to the legally-mandated wiretap implementation. If politicians are serious about online security, they will not make these security blunders even worse by bringing more sensitive communication technologies under CALEA’s scope.

Just last week, an ad hoc group of twenty renowned computer security experts issued a report explaining their consensus that CALEA II proposals could seriously harm computer security. These experts said that a requirement to weaken security with deliberate backdoors “amounts to developing for our adversaries capabilities that they may not have the competence, access or resources to develop on their own.”

And now the Washington Post has reported that intruders, allegedly working on behalf of the Chinese government, broke into Google’s existing surveillance systems. (In this case, the report says that the intruders learned who was targeted by these systems, rather than accessing the contents of the targets’ accounts or communications—but it’s easy to see that wiretap contents would ultimately represent an even bigger target, and a bigger prize. Even more exciting would be the prospect of remotely activating new wiretaps against victims of an intruder’s choice.)

Internet Users Have the Right to Secure Communications

Expanding CALEA is not only a tremendous risk for our online security; it’s a slap in the face of Internet users who want to protect themselves online by choosing privacy-protecting software to shield their communications. Ordinary individuals, businesses, and journalists want and often need state-of-the art software to protect their communications in an era of pervasive spying by commercial rivals, criminals, and governments around the world. The government’s rhetoric takes us back to the early 1990s when US law enforcement spoke openly of banning secure encryption software to keep it out of the public’s hands. EFF and others had to fight—including in the Federal courts—to establish the principle that publishing and using encryption tools is an essential matter of individual freedom and protected by the First Amendment.

Once those “crypto wars” were over, the US government seemed to accept the right of Americans to secure communications and abandon the idea of forcing innovators to dumb down these technologies. We turned our concerns to foreign governments, several of whom were trying to ban communications tools for being “too private.” (For instance, the Associated Press reported five countries threatened to ban BlackBerry services in 2010 because the services protected user privacy too well.) Americans, including the US State Department, began supporting the development and distribution of secure communications tools to foreign rights activists who need them. Now this battle may be coming home.

Even with these tools, most Americans can protect only a tiny fraction of the trail of data we leave behind electronically as we live our lives. But we still have the right to choose them and try our best to keep our private communications private.

CALEA Must Not Come Back

The government should place any proposal to expand CALEA on hold. There is little evidence the FBI is actually “going dark,” especially when balanced with all the new information they have access to about our communications. And backdoors make everyone weaker. In a time when “cybersecurity” is supposed to be a top priority in Washington, the FBI is pushing a scheme that directly undermines everyone’s online security and interferes with both innovation and the freedom of users to choose the technologies that best protect them. Tell the White House now to stop the proposal in its tracks.

May 23, 2013 Posted by | Civil Liberties, Full Spectrum Dominance | , , , | Comments Off on The Government Wants A Backdoor Into Your Online Communications

Obama Expands Wiretap Authority to Cover Finance, Healthcare and Other Industries

By Matt Bewig | AllGov | April 29, 2013

When one conspires to violate federal law, it helps to have a government agency or two as one’s co-conspirators when law enforcement comes poking around, as telecom giant AT&T and others learned recently when the Defense Department (DOD) and the Department of Homeland Security (DHS) successfully pressured the Justice Department (DOJ) to agree secretly not to prosecute blatantly illegal wiretaps conducted by AT&T and other Internet service providers at the request of the agencies.

Although some press reports have termed this an authorization of activity that would otherwise be illegal, this is a misnomer. The executive branch lacks the power to retroactively declare criminal conduct to be lawful, but it can choose to ignore it by waiving prosecution pursuant to “prosecutorial discretion.”

Although the secret DOJ prosecution waiver initially applied to a cyber-security pilot project—the DIB Cyber Pilot—that allowed the military to monitor defense contractors’ Internet links, the program has since been renamed Enhanced Cybersecurity Services and is being expanded by President Obama to allow the government to snoop on the private networks of all companies operating in “critical infrastructure sectors,” including energy, healthcare, and finance starting June 12.

“The Justice Department is helping private companies evade federal wiretap laws,” warned Marc Rotenberg, executive director of the Electronic Privacy Information Center, which obtained more than 1,000 pages of government documents relating to the issue via a Freedom of Information Act request. “Alarm bells should be going off.”

The wiretap law referenced by Rotenberg is the Wiretap Act, codified at 18 USC 2511, which makes it a crime for a network operator to intercept communications carried on its networks unless the monitoring is a “necessary incident” to providing the service or it occurs with a user’s “lawful consent.” Since neither of those exceptions applied, DOD and DHS pressed DOJ attorneys to agree not to prosecute what were clearly prosecutable offenses by issuing an unknown number of “2511 letters,” which are normally used by DOJ to tell a company that its conduct fit within one of the lawful exceptions to the Act.

The purported “retroactive authorization” is similar to the “retroactive immunity” given the telecoms by Congress for their participation in illegal wiretapping and eavesdropping between 2001 and 2006. Likewise, former DHS official Paul Rosenzweig compared the case of the “2511 letters” to the CIA asking the Justice Department for legal memos justifying torture a decade ago. “If you think of it poorly, it’s a CYA [“cover your ass] function,” Rosenzweig says. “If you think well of it, it’s an effort to secure advance authorization for an action that may not be clearly legal.” Or may be clearly illegal.

In any event, Obama’s own expansion by mid-June of the snooping “to all critical infrastructure sectors,” defined as companies providing services whose disruption would harm national economic security or “national public health or safety” will proceed.

April 29, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite | , , , , , | Comments Off on Obama Expands Wiretap Authority to Cover Finance, Healthcare and Other Industries

UN Arms Trade Treaty’s Deadly Loophole

By Nile Bowie | Press TV | April 7, 2013

Foundation fellows and diplomats have lauded the overwhelming approval of the Arms Trade Treaty (ATT) by the General Assembly of the United Nations, with UN Secretary-General Ban Ki-moon describing it as a means to obstruct the illicit arms flow to warlords, pirates, terrorists, criminals and the like. Many who have critically monitored the situation in Syria and the ramifications of foreign intervention in Libya may have difficulty swallowing Ban’s words, as some would argue that the UN has itself been complicit in these crises for turning a blind eye to arms and funding going to al-Qaeda-linked rebels in various countries. Twenty-three countries abstained from the vote (representing half the world’s population), including Russia, China, India, Cuba, Bolivia, Nicaragua and Egypt, while three – Syria, Iran, and North Korea – voted no. Iran’s Deputy Permanent Representative to the UN Gholam-Hossein Dehqani called the treaty a political document disguised as an Arms Trade Treaty, and with highly legitimate reasons for doing so.

“The right to acquire and import arms for their (importer states’) security needs is subject to the discretionary judgment and extremely subjective assessment of the exporting states. That is why this text is highly abusable and susceptible to politicization, manipulation and discrimination,” said Dehghani, referring to conditions that arms exporting states would be able to impose on importing states. The pact prohibits the export of conventional arms to countries deemed guilty of violating international human rights laws and committing crimes against humanity – sure, this appears to be ethical and just at first glance, but more careful reflection is required. If we assume that the United Nations makes the call on which states qualify as human rights abusers and which states do not, then Israel would not be hindered from purchasing conventional weapons, but a country like Syria would be barred from purchasing arms to defend itself and its territorial sovereignty.

What makes the treaty not only toothless, but also particularly dangerous, is the fact that it lacks any explicit prohibitions regarding arms proliferation to terrorists and unlawful non-state actors. “Without such provisions, the ATT would in fact lower the bar on obligations of all states not to support terrorists and/or terrorists acts. We cannot allow such a loophole in the ATT,” said Sujata Mehta, India’s lead negotiator for the ATT in a statement. What this means is that NATO and Gulf states that supply arms to opposition groups in Syria will retain the flexibility to continue to do so, while at the same time having a greater say over whether individual importing states can arm themselves in accordance with their legitimate defense and national security interests. There is no doubt that certain states would take advantage of this loophole’s vast potential for misuse.

The treaty does not recognize the rights of all states to acquire, produce, export, import and possess conventional weapons for their own legitimate security purposes. In theory, this treaty gives the United States, the world’s largest arms exporter with heavy sway over the UN, much greater ability to influence whether or not an individual country is allowed to obtain weapons for its own defense. The treaty, in its glaring bias and predictability, completely fails to prohibit the transfer of arms to countries engaged in military aggression against other nations, such as Israel. “Somebody probably wants to have free rein to send arms to anti-government groups in countries ruled by regimes they consider inconvenient… When we started work on the document, the General Assembly set the task of establishing the highest possible international standards in the area of arms transfers. In reality though, the treaty has established minimally acceptable standards,” said Russian treaty negotiator Mikhail Ulyanov in a recent interview.

The treaty applies to the transfer of conventional weapons such as battle tanks, armored combat vehicles, large caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, small and light weapons, while the proliferation of UAV drones and other modern military technology is not addressed or scrutinized. While feel-good rhetoric prevails and politicians pat themselves on the back, the United Nations by its own admission concedes that the treaty does not ban or prohibit the export of any type of weapon. It is clear that the countries that rely most on the illicit trafficking of arms to execute their foreign policy objectives have had noticeable influence over the contents of this treaty. The treaty depends on how stringently individual countries implement it, and international arms transfers that involve barter deals or leases are also not scrutinized.

While many call it a welcomed development and the first step in regulating the $70 billion global conventional arms trade, there is little evidence that it will accomplish anything more than increase the frequency of illicit transfers under different guises and further legitimize the ‘Good Terrorist-Bad Terrorist’ dichotomy – it also contains no language concerning the right to self-determination by people who are under occupation, as is the case in Palestine. The treaty contains some reasonable common-sense measures, such as introducing national systems that monitor arms circulation in countries that lack such systems, but the absence of progressive processes lends credence to accusations that the text is highly industry-friendly and serves to reinforce the status quo.

Most importantly, the treaty pays no focus to actually reducing the sale of arms by limiting global production, which should rightfully be the objective of a treaty that uses global mass causality figures to legitimize itself. According to the UN Office for Disarmament Affairs, armed violence kills more than half a million people each year, a figure that should rightfully strengthen calls to regulate and decrease global production rather than solely focusing simply on trade. Rather, the treaty institutionalizes and legalizes the arming of good terrorists while denying arms to unfriendly governments. Until the UN can cease being an appendage of a handful of the most powerful arms exporting states, there is little hope that any international arms trade treaty can reduce human suffering and have a meaningful impact on the lives of the most vulnerable in conflict zones around the world and elsewhere.

Nile Bowie can be reached at nilebowie@gmail.com

April 8, 2013 Posted by | Deception | , , , , | Comments Off on UN Arms Trade Treaty’s Deadly Loophole

‘Just trust us’ – NSA to privacy advocates in court

RT | October 23, 2012

The US National Security Agency isn’t outright rejecting claims that they’ve been conducting surveillance on everyone in the country, but they want Americans to at least give them the benefit of the doubt when it comes to their intentions.

The NSA was in court again this week to challenge a potential class action lawsuit that aims to end the governmental agency’s electronic surveillance program begun by President George W. Bush in the aftermath of the September 11, 2001 terrorist attacks; but while the plaintiffs in the case want to abolish the warrantless wiretapping and spying on innocent civilians started under that administration’s Terrorist Surveillance Program, the government’s argument is now one that requires Americans to accept the agency’s insistence they’re really not up to anything worth worrying about, Courthouse News reports.

In Federal Court this week, the NSA said that the public should simply trust the government when they say they aren’t abusing any powers legally or illegally in place to engage in clandestine surveillance of each and every citizen.

A San Francisco courthouse was the venue for the latest episode in the matter of Jewel v. NSA, a 4-year-old case that charges the spy agency with once and still operating an “illegal and unconstitutional program of dragnet communications surveillance.” Lead plaintiff Carolyn Jewel brought on the suit back in 2008 with the assistance of the Electronic Frontier Foundation and on behalf of current and former customers of AT&T who say they were affected when the telecom giant allowed the NSA unfettered access to their systems to spy on the communications of any customers they wish.

The plaintiffs say that the NSA ordered the attachment of surveillance devices to AT&T’s master network in order to have the ability to divert any communication routed through their service to secure facilities to allow for “an unprecedented suspicionless general search.” When former NSA senior executive Thomas Drake condemned the agency’s overly broad and costly surveillance of innocent Americans in 2007, the government attempted to silence him by filing an indictment under the Espionage Act of 1917.

When Jewel v NSA ended up in federal court in 2010, US District Court Chief Judge Vaughn Walker originally dismissed the case, only for the Ninth Circuit Court of Appeals deciding to reinstate it last year.

“Since September 11 and now, through two administrations, the executive has engaged in unprecedented assertions of power without regard to the constitutional and statutory limits of its authority,” attorney Richard Wiebe wrote in the case’s initial filings. “It has correspondingly sought to exclude the judiciary from adjudicating whether these exercises of executive power have stayed within the limits set by the Constitution and by Congress.”

Currently, the government alleges that they do not have to respond to charges of unwarranted eavesdropping because they have immunity in instances where disclosure could disrupt national security. As Courthouse News previously reported, the federal government “claims to have invoked state secrets privileges that protects it from any litigation consequentially stemming from supposed violations of those acts.” Plaintiffs, however, say that the government waived its right to sovereign immunity when it put itself in violation of the Foreign Intelligence Surveillance Act (FISA) as well as the US Constitution’s Fourth Amendment that protects Americans from unlawful searches and seizures.

Dozens of similar lawsuits against Verizon and other telecommunication companies were initially filed during the George W. Bush administration, but amendments added to the Foreign Intelligence Surveillance Act (FISA) in 2008 granted those companies immunity to civil actions “providing assistance to an element of the intelligence community.” Now, however, plaintiffs say the government must be held accountable for their own violations of FISA and the Constitution.

Responding to the case earlier this month, the government insisted, “The Foreign Intelligence Surveillance Act does not authorize a claim against the Government defendants sued in their official capacities, the state secrets privilege bars the litigation of plaintiffs’ remaining claims and the state secrets privilege is not displaced by the FISA.”

“[T]he disclosure of sensitive intelligence sources and methods . . . reasonably could be expected to cause exceptionally grave harm to national security,” the government wrote in one of three motions filed so far to put Jewel v. NSA to rest. “The very purpose of these cases is to put at issue whether the NSA undertook certain alleged activities under presidential authorization after 9/11, and whether those activities continue today. At every stage, from standing to the merits, highly classified and properly privileged intelligence sources and methods are at risk of disclosure. The law is clear, however, that where litigation risks or requires the disclosure of information that reasonably could be expected to harm national security, dismissal is required.”

Wiebe and the plaintiffs see things another way, though, and wrote earlier that “The government here seeks to transform the state secrets privilege from a powerful but targeted evidentiary shield into a justiciability sword, preventing the Judiciary from engaging in its constitutional duty.”

The government’s goal, Wiebe continued, “is to convince this court to close its eyes to a program that impacts every American who uses a phone, email or the Internet. The judiciary must recognize the dangers of allowing the executive to distort narrow exceptions like the state secrets privilege into broad unfettered power to ‘turn the Constitution on or off at will.’ Even in the case involving war powers, the Supreme Court has confirmed that the ‘war power does not remove constitutional limitations safeguarding essential liberties.'”

This week the government did not fight back as hard to defend any surveillance practices engaged by either the George W. Bush or Obama administrations, but said innocent Americans should trust that they aren’t in danger of being watched.

“This lawsuit puts at issue alleged intelligence activities of the National Security Agency (‘NSA’) purportedly undertaken pursuant to presidential authorization since the terrorist attacks of September 11, 2001,” the NSA says in their latest response. “For the past six years, the nation’s most senior intelligence officials, in succeeding administrations, have consistently advised this court that litigation of plaintiffs’ allegations would risk exceptional damage to national security, setting forth in detail the matters at issue. Renewed invocation of the state secrets privilege in this action by the Director of National Intelligence has undergone rigorous review within the Executive Branch under a process providing that privilege will only be asserted where necessary to protect against significant harm to national security. Contrary to plaintiffs’ suggestion, in these circumstances dismissal would not constitute an abdication of judicial authority, but the exercise of judicial scrutiny of the privileged information at issue and the application of established law to protect compelling national security interests.”

US District Judge Jeffery White will consider the latest motion on November 2 and could decide to let the arguments be brought to trial. If the case is allowed and elevated to class action status as the plaintiffs hope, attorneys fear that a victory for the NSA would mean the continuation of warrantless dragnet surveillance would continue — this time on-the-books.

October 24, 2012 Posted by | Civil Liberties, Progressive Hypocrite, Timeless or most popular | , , , , , | 1 Comment