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‘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.

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

NSA Chief Appears to Deny Ability to Warrantlessly Wiretap Despite Evidence

By Trevor Timm | EFF | March 21, 2012

The former NSA official held his thumb and forefinger close together. “We are, like, that far from a turnkey totalitarian state,” he says. — Wired Magazine, April 2012

Last week, in Wired Magazine, noted author James Bamford reported on an expansive $2 billion “data center” being built by the NSA in Utah that will house an almost unimaginable amount of data on its servers, along with the world’s fastest supercomputers. Part of the purpose of this new center, according to Bamford, is to store “all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails—parking receipts, travel itineraries, bookstore purchases, and other digital ‘pocket litter.’”

In the Wired article, Bamford interviewed former NSA official William Binney, a “crypto-mathematician largely responsible for automating the agency’s worldwide eavesdropping network.” Binney further shed light on the NSA’s warrantless wiretapping program, first exposed by the New York Times in 2005 and the subject of EFF’s long running suit Jewel v. NSA, which challenges the constitutionality of the NSA’s program.

The NSA claims it only has access to emails and phone calls of non-U.S. citizens overseas, but Binney provides more detail to the many previous reports by the New York Times, USA Today, New Yorker, and many more that the program indeed targets US based email records. In the 11 years since 9/11, Binney estimates 15 to 20 trillion “transactions” have been collected and stored by the NSA. From the Wired article:

He explains that the agency could have installed its tapping gear at the nation’s cable landing stations—the more than two dozen sites on the periphery of the US where fiber-optic cables come ashore. If it had taken that route, the NSA would have been able to limit its eavesdropping to just international communications, which at the time was all that was allowed under US law. Instead it chose to put the wiretapping rooms at key junction points throughout the country—large, windowless buildings known as switches—thus gaining access to not just international communications but also to most of the domestic traffic flowing through the US. The network of intercept stations goes far beyond the single room in an AT&T building in San Francisco exposed by a whistle-blower in 2006. “I think there’s 10 to 20 of them,” Binney says. “That’s not just San Francisco; they have them in the middle of the country and also on the East Coast.”

The Director of NSA, General Keith Alexander, testified at a House subcommittee hearing Tuesday and Rep. Hank Johnson (D-GA) grilled him on the details of the Wired story. He appeared to deny the main points of the article, including that the NSA was intercepting emails, phone calls, Google searches, and phone records of individuals in the United States—as well as the technical capabilities of the program’s software described by Binney. But perhaps more strangely, Alexander also seemed to claim the NSA did not have the technical ability to collect Americans’ emails and Internet traffic even if it weren’t required to get a warrant:

Gen. Alexander: In the United States we’d have to go through the FBI process, a warrant to get that and serve it to somebody to actually get it.

Rep. Johnson: But you do have the capability of doing it?

Gen. Alexander: Not in the United States.

Rep. Johnson: Not without a warrant?

Gen. Alexander: We don’t have the technical insights in the United States, in other words, you have to have something to intercept or some way of doing that. Either by going to a service provider with a warrant, or you have to be collecting in that area. We’re not authorized to collect, nor do we have the equipment in the United States to actually collect that kind of information. (emphasis ours)

In our lawsuits, EFF has provided evidence that the NSA operated a monitoring center out of AT&T’s switching facility in San Francisco that has the ability to do exactly what Gen. Alexander says the NSA can’t.  In light of all the evidence, it is hard to take comfort from Gen. Alexander’s apparent denial.  In previous discussions of the warrantless wiretapping program, the government has used crabbed and unusual definitions of words to make misleading statements that also seem like denials but turn out to be largely word games.

In one prominent example, then Principal Deputy Director of National Intelligence Michael Hayden said in a 2006 statement: “Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations…”  Later, when confronted with evidence of a wider drift net program during his confirmation hearing, he explained “I pointedly and consciously downshifted the language I was using. When I was talking about a drift net over Lackawanna or Freemont or other cities, I switched from the word ‘communications’ to the much more specific and unarguably accurate ‘conversation.’”

Notably, the NSA’s interpretation of what it means to “collect” communications seems to be quite limited.  Under Department of Defense regulations, information is considered to be “collected” only after it has been “received for use by an employee of a DoD intelligence component,” and “[d]ata acquired by electronic means is ‘collected’ only when it has been processed into intelligible form[,]”  So, under this definition, if the communications of millions of ordinary Americans were gathered and stored indefinitely in Utah, it would not be “collected” until the NSA “officially accepts, in some manner, such information for use within that component.”

The illegality of warrantless wiretapping, however, does not depend on when the NSA officially accepts the information or processes it into intelligible form (whatever that means).  Americans’ privacy and constitutional protections do and should not hinge on word games.  We are looking forward to establishing, in the Jewel v. NSA case, a simpler proposition: that the government can’t spy on anyone, much less everyone, without a warrant.

~

on March 23, 2012

Recently a report by Wired magazine revealed the details of a spy center in Bluffdale, Utah. It says that the National Security Agency has turned its surveilance apparatus on the US and its citizens, including phone calls and emails. This week the NSA chief testified to Congress and took questions about his agency’s ability – both legally and physically – to spy on US citizens and denied that this is happening. Trevor Timm, an activist with the Electronic Frontier Foundation believes otherwise – he brings his take on the issue.

March 22, 2012 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , | 1 Comment

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