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March Madness Washington Style

By Andrew Napolitano • Unz Review • March 22, 2018

For the past few days, the nation’s media and political class have been fixated on the firing of the No. 2 person in the FBI, Deputy Director Andrew McCabe. McCabe became embroiled in the investigation of President Donald Trump because of his alleged approval of the use of a political dossier, written about Trump and paid for by the Democrats and not entirely substantiated, as a basis to secure a search warrant for surveillance of a former Trump campaign adviser who once boasted that he worked for the Kremlin at the same time that he was advising candidate Trump.

The dossier itself and whatever was learned from the surveillance formed the basis for commencing the investigation of the Trump campaign’s alleged ties to Russia by the Obama Department of Justice, which is now being run by special counsel Robert Mueller and has been expanded into other areas. The surveillance of the Trump campaign based on arguably flimsy evidence put McCabe into President Trump’s crosshairs. Indeed, Trump attacked McCabe many times on social media and even rejoiced when Attorney General Jeff Sessions fired him at 10 p.m. last Friday, just 26 hours before his retirement was to have begun.

Why the fixation on this? Here is the back story.

After the unlawful use of the FBI and CIA by the Nixon administration to spy on President Nixon’s domestic political opponents, Congress passed the Foreign Intelligence Surveillance Act in 1978. This statute outlawed all domestic surveillance except that which is authorized by the Constitution or by the new Foreign Intelligence Surveillance Court.

That court, the statute declared, could authorize surveillance of foreigners physically located in the United States on a legal standard lesser than that which the Constitution requires. Even though this meant Congress could avoid the Constitution — an event that every high school social studies student knows is unconstitutional — the FISC enthusiastically embraced its protocol.

That protocol was a recipe for the constitutional crisis that is now approaching. The recipe consists of a secret court whose records and rulings are not available to the public. It’s a court where only the government’s lawyers appear; hence there is no challenge to the government’s submissions. And it’s a court that applies a legal standard profoundly at odds with the Constitution. The Constitution requires the presentation of evidence of probable cause of a crime as the trigger for a search warrant, yet FISA requires only probable cause of a relationship to a foreign power.

In the years in which the FISC authorized spying only on foreigners, few Americans complained. Some of us warned at FISA’s inception that this system violates the Constitution and is ripe for abuse, yet we did not know then how corrupt the system would become. The corruption was subtle, as it consisted of government lawyers, in secret and without opposition, persuading the FISC to permit spying on Americans.

The logic was laughable, but it went like this: We need to spy on all foreigners, whether they’re working for a foreign government or not; we need to spy on anyone who communicates with a foreigner; and we need to spy on anyone who has communicated with anyone else who has ever communicated with a foreigner.

These absurd extrapolations, pressed on the FISC and accepted by it in secret, turned FISA — a statute written to prevent spying on Americans — into a tool that facilitates it. Now, back to McCabe.

Though the use of FISA for domestic spying on ordinary Americans came about gradually and was generally known only to those in the federal intelligence and law enforcement communities and to members of the Senate and House intelligence committees, by the time McCabe became deputy director of the FBI, this spying was commonplace. The Foreign Intelligence Surveillance Court (is it really a court, given that its rulings are secret and it hears only the government and it rejects the constraints of the Constitution?) has granted 99.9 percent of government surveillance requests.

So when McCabe and his colleagues went to the FISC in October 2016 looking for a search warrant to conduct surveillance of officials in the Trump campaign, they knew that their request would be granted, but they never expected that their application, their work and the purpose of their request — as far removed as it was from the original purpose of FISA — would come under public scrutiny.

Indeed, it was not until the surveillance of Trump and his colleagues in the campaign and the transition came to light — with McCabe as the poster boy for it — that most Americans even knew how insidiously governmental powers are being abused.

The stated reason for McCabe’s firing was not his abuse of FISA but his absence of candor to FBI investigators about his use of FISA. I don’t know whether those allegations are the true reasons for his firing or McCabe was sacrificed at the altar of government abuse — because those who fired him also have abused FISA.

But I do know that there are lessons to learn in all this. Courts are bound by the Constitution, just as are Congress and the president. Just because Congress says something is lawful does not mean it is constitutional. Secret courts are the tools of tyrants and lead to the corruption of the judicial process and the erosion of freedom.

And courts that hear no challenge to the government and grant whatever it wants are not courts as we understand them; they are government hacks. They and the folks who have facilitated all this have undermined personal liberty in our once free society.

The whole purpose of the Constitution is to restrain the government and to protect personal liberty. FISA and its enablers in both major political parties have done the opposite. They have infused government with corruption and have assaulted the privacy of us all.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

March 22, 2018 Posted by | Civil Liberties, Corruption | , | Leave a comment

It’s Time for Answers on Yahoo’s Email Scanning

By Kate Tummarello | EFF |October 25, 2016

You should know if the government thinks it can deputize your email provider to scan through your messages.

Like most people, we were shocked at reports earlier this month that Yahoo scanned its hundreds of millions of users’ emails looking for a digital signature on behalf of the government. We join millions of Yahoo users in wanting to know how this happened.

Together with a host of other civil liberties groups – including the Center for Democracy and Technology, the ACLU, and the Sunlight Foundation – we sent a letter today asking Director of National Intelligence James Clapper to release information about the scanning, how the U.S. government justified such a privacy-invasive search, and whether the government has conducted similar searches.

The letter warns that Yahoo’s “massive scan of the emails of millions of people, particularly if it involves the scanning of email content, could violate the [Foreign Intelligence Surveillance Act], the Fourth Amendment, and international human rights law, and has grave implications for privacy.”

Although the letter calls on the government to release additional details about the Yahoo scanning order, a recent law passed by Congress requires its declassification and release, or, alternatively, that the government produce a declassified summary.

It’s crucial that Clapper follow through on his pledge for transparency and release information about how the U.S. government justified the email scanning under FISA, as has been reported. We need to know whether the Foreign Intelligence Surveillance Court has interpreted FISA – which authorizes targeted surveillance of certain foreigners’ (such as spies or terrorists) communications  – to mean that the government can conscript Yahoo into mass surveillance of all of its users’ emails.

The letter also calls on Clapper to acknowledge whether the scan also involved scanning the content of the emails, disclose the kinds of search terms used in this surveillance, and to identify when this kind of surveillance first started and the total numbers of times an order like this has been used.

October 26, 2016 Posted by | Civil Liberties, Full Spectrum Dominance | , , | 1 Comment

Mike Rogers’ Plan To ‘Stop’ Bulk Collection Of Phone Records Riddled With Dangerous Loopholes That Will Expand Surveillance

By Mike Masnick | Techdirt | April 1, 2014

Now that people have had a chance to go through the proposal by Reps. Mike Rogers and Dutch Ruppersberger to “stop” the bulk phone record collection under Section 215 of the Patriot Act, they’re finding more and more things to be concerned about. We had noted some potential easter eggs in there for law enforcement, but the deeper people look, the worse it gets. Trevor Timm notes that the bill is really a trojan horse to expand surveillance capabilities, while pretending to end them.

Curiously, a large majority of the House bill focuses on new ways for the government to collect data from “electronic communications service providers” – also known as the internet companies. Why is a bill that’s supposedly about ending bulk collection of phone-call data focused on more collection of data from internet companies?

From there, we turn to Julian Sanchez, who has given one of the most thorough explanations of what’s actually in the bill, noting that it fails to really end the bulk collection of phone records while also potentially massively expanding other surveillance capabilities.

First, the HPSCI bill’s seemingly broad prohibition on bulk collection turns out to be riddled with ambiguities and potential loopholes. The fuzzy definition of “specific identifiers” leaves the door open to collection that’s extremely broad even if not completely indiscriminate. Because the provision dealing with “call detail records” applies only to &sect:215 and the provision dealing with “electronic communications records” excludes telephony records, the law does not bar the bulk collection of telephony records under FISA provisions other than §215. The prohibition on non-specific acquisition of other communications “records” probably does not preclude bulk collection under the FISA pen register provision that was previously used for the NSA Internet metadata dragnet. And, of course, none of these prohibitions apply to National Security Letters. If the government wanted to keep collecting metadata in bulk, it would have plenty of ways to do so within the parameters of this statute given a modicum of creative lawyering—at least if the FISC were to continue being as accommodating as it has been in the past.

Second, something like the novel authority created here may well be necessary to enable fast and flexible acquisition of targeted records without dragnet collection. However, once we get down to details—and even leaving aside the question of ex-post versus ex-ante judicial approval—this authority is in some respects broader than either the current §215 telephony program, the president’s proposal, or the pre-Snowden understanding of the FISA business records authority. Critically, it eliminates the required link to a predicated investigation—which, in the case of U.S. persons, must be for counterterror or counterespionage purposes.

In other words, this appears to be a superficial attempt to end bulk collection “under this program,” while at the same time knocking down a bunch of barriers to much broader bulk collection under other authorities, with less oversight and fewer ways to push back against abuse. Did anyone really expect anything different from the NSA’s two biggest defenders in the House?

April 1, 2014 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , , , , , | Leave a 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
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February 21, 2014 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , , , | Leave a comment

Wall Street Journal Columnist Repeatedly Gets His Facts Wrong About NSA Surveillance

By Trevor Timm | EFF | November 27, 2013

Wall Street Journal columnist L. Gordon Crovitz wrote a misleading and error-filled column on NSA surveillance Monday, based on documents obtained by EFF through our Freedom of Information Act lawsuit. Since we’ve been poring over the documents for the last week, we felt it was important to set the record straight about what they actually reveal.

Crovitz:

Edward Snowden thought he was exposing the National Security Agency’s lawless spying on Americans. But the more information emerges about how the NSA conducts surveillance, the clearer it becomes that this is an agency obsessed with complying with the complex rules limiting its authority.

That’s an interesting interpretation of the recently released documents, given that one of the two main FISA court opinions released says the NSA was engaged in “systemic overcollection” of American Internet data for years, and committed “longstanding and pervasive violations of the prior orders in this matter.” The court summarized what it called the government’s “frequent failures to comply with the [surveillance program’s] terms” and their “apparent widespread disregard of [FISA court imposed] restrictions.”

Crovitz:

[The documents] portray an agency acting under the watchful eye of hundreds of lawyers and compliance officers.

Again, this is not what the actual FISA court opinions portray. “NSA’s record of compliance with these rules has been poor,” and “those responsible for conducting oversight failed to do so effectively,” FISA court Judge Bates wrote in the key opinion released last week. In another FISA court opinion from 2009, released two months ago, the NSA admitted that not a single person in the entire agency accurately understood or could describe the NSA’s whole surveillance system to the court.

It’s true that the number of compliance officers at the NSA has increased in recent years, but as the Washington Post reported, so has the number of privacy violations.

Crovitz:

These documents disprove one of Mr. Snowden’s central claims: “I, sitting at my desk, certainly had the authority to wiretap anyone, from you or your accountant, to a federal judge, to even the president if I had a personal email,” he told the Guardian, a British newspaper.

Here, Crovitz is setting up a strawman. Snowden wasn’t talking about the NSA’s legal authority, but their technical authority to conduct such searches. Snowden was likely referring to XKeyScore, which the Guardian reported allowed NSA analysts to “search with no prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals.”

We actually have a specific example that proves Snowden’s point. As the New York Times reported in 2009, an NSA analyst “improperly accessed” former President Bill Clinton’s personal email. More recently, we’ve learned that the NSA analysts abused the agency vast surveillance powers to spying on ex-spouses or former lovers.

Crovitz:

The NSA also released the legal arguments the Justice Department used in 2006 to justify collection of phone metadata-the telephone number of the calling and called parties and the date, time and duration of the call.

…

Metadata collection is about connecting the dots linking potential terrorist accomplices. The Clinton administration created barriers to the use of metadata, which the 9/11 Commission concluded let the terrorists avoid detection. Since then, metadata has helped stop dozens of plots, including an Islamist plan to blow up the New York Stock Exchange in 2008.

Again, not true. As Intelligence Committee members Sen. Ron Wyden and Sen. Mark Udall have continually emphasized, there is “no evidence” that the phone metadata program is effective at stopping terrorists. Independent analyses have come to the same conclusion. When called out on that number in a Congressional hearing, even NSA Director Keith Alexander admitted the number was exaggerated.

The only “disrupted plot” the NSA can point to that was solely the work of the phone metadata program was a case where a man from San Diego sent a few thousand dollars to the al-Shabaab organization in Africa in 2008. In other words, the metadata did not disrupt an active terrorist plot inside the US at all.

Crovitz:

The declassified brief from 2006 made clear that such metadata “would never even be seen by any human being unless a terrorist connection were first established,” estimating that “0.000025% or one in four million” of the call records “actually would be seen by a trained analyst.”

The major 2009 FISA court opinion released in September, that apparently Mr. Crovitz either didn’t read or conveniently left out of his piece, showed that the NSA had been systematically querying part of this phone records database for years for numbers that the agency did not have a “reasonable articulable suspicion” were involved in terrorism—as they were required to have by the FISA court. Of the more than 17,000 numbers that the NSA was querying everyday, the agency only had “reasonable articulable suspicion” for approximately 1,800 of them.

The FISA court concluded, five years after the metadata program was brought under a legal framework, that it had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”

These documents clearly do not paint a picture of an agency with a clean privacy record and a reputation for following court rules, as Mr. Crovitz claims, and in fact, they show why it is vital Congress passes substantive NSA reform immediately. You can go here to take action.

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November 27, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance, Mainstream Media, Warmongering | , , , , , | Leave a comment

Key Loophole Allows NSA To Avoid Telling Congress About Thousands Of Abuses

By Mike Masnick | Techdirt | August 19, 2013

As we’ve noted, one of the key claims by NSA surveillance defenders was that the program had strong oversight from Congress. However, with the revelations last week about thousands of abuses, it’s become quite clear that this isn’t true. Late on Friday, Rep. Jim Himes, who is on the House Intelligence Committee, claimed that he was unaware of those violations, was told that there were “no abuses” and that these kinds of abuses are unacceptable:

Remember, this isn’t just a Congressional Rep, but a member of the Intelligence Committee, who is in charge of overseeing the NSA surveillance program. Hell, he’s even on the oversight subcommittee, and no one told him about any abuses, despite thousands happening per year. That’s astounding, and highlights how the claims of Congressional oversight are clearly bogus. Furthermore, it makes a mockery of the statement that House Intelligence Committee chair Mike Rogers put out on Friday, claiming that “The Committee has been apprised of previous incidents.” Himes says that’s completely untrue.

How is this happening? Marc Ambinder explains the “loophole” that the NSA has used to avoid telling Congress about these abuses. It’s a bit convoluted, but basically, the NSA believes that Congressional oversight only covers spying done under FISA — the law that covers any spying done on Americans, for which a court order is needed. FISA doesn’t cover spying on non-US persons (i.e., foreigners who are outside the country at the time of surveillance). And that’s where some of the abuses came in, and the NSA believes that since those aren’t “FISA” related, and Congress is only overseeing “FISA,” they don’t have to report those mistakes.

Since the focus of oversight efforts has been on FISA compliance, NSA gives Congress detailed narratives of violations of the FISA-authorized data sets, like when metadata about American phone records was stored too long, when a wrong set of records was searched by an analyst or when names or “selectors” not previously cleared by FISA were used to acquire information from the databases. In these cases, the NSA’s compliance staff sends incident reports to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence for each “significant” FISA violation, and those reports include “significant details,” the official said.

But privacy violations of this sort comprise just one third of those analyzed by the inspector general. Of the 2,776 violations reported by the NSA from May 2011 to May 2012, more than two-thirds were counted as E.O. 12333 incidents. And the agency doesn’t provide Congress detailed reports on E.O. 12333 violations.

Now, you can argue these are very different circumstances, but Ambinder points out that’s not really true in many cases:

In some ways, it’s a distinction without a difference: it does not matter to U.S. citizens whether their phone call was accidentally intercepted by an analyst focusing on U.S.-based activities or those involving a foreign country. But the difference is relevant as it keeps Congress uninformed and unable to perform its oversight duties because the NSA doesn’t provide the intelligence committees with a detailed narrative about the latter type of transgressions.

For example, if someone’s e-mails were inadvertently obtained by the NSA’s International Transit Switch Collection programs, it would count as 12333 error and not a FISA error, even though the data was taken from U.S. communication gateways, and NSA would not notify Congress.

So, basically, any “error” that involves spying on Americans doesn’t “count” as an abuse, as far as the NSA tells Congress (who keep claiming they’re in charge of oversight), because they “obtained” it outside the US, and the “error” is considered outside of FISA. That’s a pretty massive loophole through which the NSA can hide its abuse of programs from Congress.

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August 21, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , | Leave a comment

A Secret Court Making Secret Laws? That’s No Democracy

By Mike Masnick | TechDirt | July 8th 2013

Last December, well before the Ed Snowden leaks revealed some information about the FISA court (FISC) and its rulings, we had already noted that the court itself was almost certainly unconstitutional. More recently, we talked about how the fact that all the court’s judges are appointed by the Chief Justice of the Supreme Court means that the court has turned into a rubber stamp made in the image of some of the most “law and order”-minded Chief Justices from the past few decades. Ezra Klein has since expanded on that to discuss the oddity of how current Chief Justice John Roberts is basically the Chief Justice of the Surveillance State, answerable to absolutely no one: “You have exclusive, unaccountable, lifetime power to shape the surveillance state.”

Over the weekend, the NY Times put out a powerful piece discussing how FISC has basically become a shadow Supreme Court, doling out all sorts of important rulings in total secrecy. It rules on cases where it only hears one side, and where there are no appeals, no guarantee that the full story is presented, and involves a bunch of judges who tend to have law enforcement backgrounds before being appointed to the court. In the end, you have a secret court issuing secret rulings by ex-law enforcement officials, allowing their former colleagues ever greater power to spy on everyone.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

[….] Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

As an example of how FISC has basically completely overturned the rules of surveillance in secret, the NY Times reveals the details of some of its thinking, taking a extremely narrow ruling meant to apply in special cases, and turning it into a general rule that has allowed the vast capture of information:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

I don’t care where you come down on the importance of widespread surveillance — I just don’t see how you can possibly square the above interpretation of the law with the 4th Amendment. If “special needs” can be used to justify mass collection of data on just about everyone “just in case” it might stop some sort of terrorist attack, then you no longer have a 4th Amendment. At all.

But, the bigger issue here is just the fact that we have a secret court issuing secret interpretations of the law that have a massive impact on our privacy. This is supposed to be an open democracy. An open democracy doesn’t involve secret courts and secret laws. We have laws that everyone knows, and which the public can discuss and weigh in on through their elected officials. When you set up a secret court, making secret rules with no oversight, and with all of the judges appointed by a single Supreme Court Justice with a particular bias, you no longer have a functioning democracy at all. And that’s downright scary.

This is a point that some Senators have been making for years now, but the leaks from Ed Snowden have really made it that much clearer just how insane the situation is. Earlier, it had seemed like perhaps there was one or two rulings from FISC that had some oddities in the interpretation, and which should probably be revealed to the public. However, the various revelations so far suggest that the issue is much, much bigger, and we have a secret “shadow court” system that is systematically obliterating the 4th Amendment and helping to create and then “legitimize” the vast surveillance state.

The Snowden leaks have shone a number of lights on various bad things within our government, but one thing that they have made abundantly clear is that the FISC needs to go. Whether that means it needs to be opened up, or to have greater oversight, or just be done away with completely, could be up for discussion. But if it remains the way it is, it’s clear that we’ve thrown away our basic democratic principles, and moved towards the same sorts of autocratic regimes with secret courts that the US has always presented itself as being against.

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July 9, 2013 Posted by | Civil Liberties, Corruption, Deception, Full Spectrum Dominance | , , , , , , , , , | Leave a comment

Spying by the Numbers

By BILL QUIGLEY | CounterPunch | June 20, 2013

Thanks to NSA whistleblower Edward Snowden many more people in the US and world-wide are learning about extensive US government surveillance and spying.  There are publicly available numbers which show the reality of these problems are bigger than most think and most of this spying is happening with little or no judicial oversight.

Hundreds of Thousands Subject to Government Surveillance

The first reality is that hundreds of thousands of people in the US have been subject to government surveillance in each of the last few years. Government surveillance of people in the US is much more widespread than those in power want to admit.   In the last three years alone about 5000 requests have been granted for complete electronic surveillance authorized by the secret FISA court.  The FBI has authorized another 50,000 surveillance operations with National Security Letters in the last three years.  The government admits that well over 300,000 people have had their phone calls intercepted by state and federal wiretaps in the last year alone.  More than 50,000 government requests for internet information are received each year as reported by internet providers. And, remember, these are the publicly reported numbers so you can be confident there is a whole lot more going on which has not been publicly reported.

Courts Almost Never Deny Government Requests for Surveillance

The second reality is that there is little to no serious oversight or accountability by the courts of this surveillance.  Government spy defenders keep suggesting the courts are looking carefully and rigorously at all this and only letting a tiny number of really bad people be spied on.  Not true.  Despite thousands of requests by the federal government to look deeply into people’s lives, the secret federal FISA court turned down no requests at all in the last three years.  The state and federal courts report on wiretap applications document over 2000 applications annually for surveillance which authorize the interception of hundreds of thousands of calls and emails.  The courts have turned down the government two times in the most recent report.  FBI national security letters do not even have to be authorized by a court at all.  The lack of Congressional oversight is plain to see but the lack of any judicial review of many of these surveillance actions and the very weak oversight where courts do review should concern anyone who cares about government accountability.

Let’s break down the surveillance by the authority for spying.

In FISA Court Government Always Wins  

The US government has tried to say the public should not worry about government scooping up hundreds of millions of phone calls and internet activities because no real information is disclosed unless it is authorized by what is called the FISA court.  Therefore, you can trust us with this information.

The FISA Court, actually called the Foreign Intelligence Surveillance Court, is made up of ten federal judges who deliberate and decide in secret whether the government can gather and review millions of phone and internet records.  This court, though I know and respect several of its members, cannot, be considered an aggressive defender of constitutional rights and civil liberties.

Government lawyers go to these FISA judges in secret.  Government lawyers present secret evidence in secret proceedings with no defense lawyer or public or press allowed and asks for secret orders allowing the government to secretly spy on people.  Its opinions are secret.  The part the public knows is a one paragraph report which is made every year of the number of applications and the number of denials by the court.

What is worse is that the judges in this secret court never turn the secret government lawyers down.

Over the last three years, the government has made 4,976 requests to the secret FISA court for permission to conduct electronic surveillance for foreign intelligence purposes. But the really big FISA number is zero.  Zero is the number of government requests to conduct electronic surveillance the FISA court has turned down in the last three years.

In 2012, the government asked for permission from the judges of the secret Foreign Intelligence Surveillance Court (FISA) 1,789 times to conduct electronic surveillance for foreign intelligence purposes.  There were zero denials.  One time the government withdrew its request.

In 2011, the government asked FISA judges 1,676 times to conduct electronic surveillance for foreign intelligence services.  There were zero denials.  The government withdrew two requests.

In 2010, the government asked FISA judges 1,511 times to conduct electronic surveillance for foreign intelligence purposes.  There were zero denials.  The government withdrew five requests.

Not a bad record, huh?  Nearly five thousand victories for those who want surveillance powers and no defeats is a record that should concern everyone who seeks to protect civil liberties.

FBI National Security Letters Scoop Up Information No Court Approval Even Needed

With a NSL letter the FBI can demand financial records from any institution from banks to casinos, all telephone records, subscriber information, credit reports, employment information, and all email records of the target as well as the email addresses and screen names for anyone who has contacted that account.  The reason is supposed to be for foreign counterintelligence.  There is no requirement for court approval at all.  The Patriot Act has made this much easier for the FBI.

According to Congressional records, there have been over 50,000 of these FBI NSL requests in the last three years.  This does not count the numerous times where the FBI persuades the disclosure of information without getting a NSL.  Nor does it count FBI requests made just to find out who an email account belongs to.

These reported NSL numbers also do not include the very high numbers of administrative subpoenas issued by the FBI which only require approval of a member of the local US Attorney’s office.

In 2012, the FBI issued 15,229 national security letter requests for information concerning US citizens.

In 2011, the FBI made 16,511 national security letter requests for information concerning US persons.

In 2010, the FBI made 24,287 national security letter requests for information on US citizens.

Since there is no court approval needed, there are no denials.  The NSL record is even better than the FISA record at 56,027 wins and no losses for Team Surveillance.

Thousands of Wiretaps Each Impacting Over One Hundred People Authorized Two Denied

According to the latest report to Congress by the US Courts, there were 2,732 applications for wiretaps submitted to all federal and to half of the state courts in 2011.  Half the states did not report on their numbers, so these numbers are certainly quite much too low.  Also, the term wiretap is out of date as this process currently covers providing information on conventional phone lines, cell phones, secret microphones, texts, fax, paging, and email computer transmissions.

For the year 2011, out of 2,732 applications, only two were denied.  Two losses out of 2700 tries is a comparatively poor win loss record for the surveillance folks.

On average, each wiretap intercepted the communications of 113 people, thus over three hundred thousand people had their calls intercepted.

The most prevalent reason reported for the wiretaps was drug offenses.  The average length of the wiretap was 42 days.  One federal wiretap in Michigan resulted in intercepting over 71,000 cellular messages extending over 202 days.  A New York state wiretap intercepted 274,210 messages over 564 days.

 Company Reports on Spying Show Tens of Thousands of Requests

It is well known that user accounts at Google, Apple and others contain a treasure trove of information on the customer’s basic information including searches, likes and dislikes, purchases, friends, and the like.  Government investigators seek this information tens of thousands times each year as the reports from the companies show.

Apple reported receiving 4,000 to 5,000 government requests for information on customers in just the last six months.  From December 1, 2012 to May 31, 2013 Apple received law enforcement requests for customer data on 9-10,000 accounts or devices.  Most of these requests are from police for robberies, missing children, etc.

Facebook reported that in a six month period ending December 31, 2012, it received between 9,000 and 10,000 requests from the US government for user data on 18,000 to 19,000 accounts.

Google reported it received over 15,000 requests for data by US government officials in 2012 for information on over 30,000 accounts.  It produced some data 88% of the time.

Microsoft (including Skype) reported 75,378 law enforcement requests for information on 137,424 accounts world-wide for the year 2012.  In over 11,000 cases, they could find no data to respond to the requests.  Microsoft disclosed non-content information in 56,388 cases, mostly to the US, UK, Turkey, Germany and France. In the US, Microsoft received 11,073 requests from law enforcement for information on 24,565 accounts.  Microsoft rejected 759 requests or 6.9% on legal grounds.  Microsoft provided user content in 1544 cases and subscriber/transactional data in 7,196 cases.

Yahoo said that in the last six months of 2012 it received between 12,000 and 13,000 requests for user data from law enforcement.

In a democracy, transparency and public participation are critical.  This is not just about “the terrorists.”  This is about civil liberty and government accountability.  Hundreds of thousands of people are being spied upon every year by our own government’s public admissions.  There is little oversight by judges and even less by Congress.  If the government admits this much, you can certainly assume there is more to come out.  It is time to wake up.  These secret subpoenas and secret courts and secret processes should be abolished or fundamentally changed.  Otherwise, change the slogan on the dollar to “In Secrecy We Trust.”

Bill Quigley is a human rights lawyer and law professor at Loyola University New Orleans College of Law.  Bill also works with the Center for Constitutional Rights.  A longer version of this article with full sources is available.  You can reach Bill at quigley77@gmail.com

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June 20, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Timeless or most popular | , , , , , , , | Leave a comment

Foreign Surveillance Post-9/11: A History of Privacy Erosion

By Katitza Rodriguez, Mark Rumold and Tamir Israel | EFF | June 15, 2013

In order to fully appreciate how the revelations of this past week will impact non-Americans based outside of the United States, a little background on the legal framework on how the U.S. foreign intelligence apparatus operates is helpful. The centerpiece of this framework is the Foreign Intelligence Surveillance Act (FISA), enacted in the late 70s. Historically, relying on a national security exception contained in the Wiretap Act, the United States government considered it had no obligation to obtain authorization from a court before intercepting communications for the purpose of national security. This changed in 1972, when the Supreme Court of the United States first held that the Fourth Amendment warrant requirement does apply to surveillance carried out in the name of national security – at least with respect to domestic threats:

Security surveillance is especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillance to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

These words of caution rang true when it was later revealed that the Government’s unauthorized intelligence-gathering activities had included extensive surveillance of journalists, anti-war protestors, dissident groups and even political opponents. The congressional hearings that followed, called the Church Committee, led to what was perhaps the first comprehensive public look at the activities of the National Security Agency–a clandestine intelligence entity that had been colloquially dubbed “No Such Agency” to reflect its unique ability to defy any attempt to document or oversee its activities. Against this backdrop, FISA was passed specifically for the purpose of limiting foreign intelligence activities from being directed at U.S. persons.

While FISA was always generous in the powers it granted U.S. government agencies with respect to the surveillance of foreign agents, a series of amendments beginning with the USA PATRIOT Act and culminating with the FISA Amendment Act, 2008, transformed FISA into the vehicle for mass surveillance it is today. Notably, these amendments, as the U.S. government ultimately interpreted them:

  • (a) provided a broader set of powers under which various digital service providers were compelled to assist U.S. foreign intelligence agencies in their activities;
  • (b) removed the need for intelligence agencies to direct their activities at ‘foreign powers’ or ‘agents of foreign powers’ by making any non-U.S. person the legitimate focus of surveillance; and
  • (c) applied these extra-ordinary powers to a broader set of circumstances by removing the obligation to ensure ‘foreign intelligence’ is a primary objective for their use.

These amendments furnished the United States government with at least two powerful secret legal surveillance powers that have apparently been used by the NSA to conduct broad surveillance of both U.S. and non-U.S. persons:

  • a business records power (section 215 of the USA PATRIOT Act, codified as 50 USC §1861) under which the U.S. Government can compel production of ‘any tangible thing’ reasonably believed to be relevant to an authorized investigation conducted for the purpose of obtaining foreign intelligence. The government has now confirmed that it has secretly interpreted ‘any tangible thing’ to include ”all call detail records”, and its telephone metadata surveillance program is based on this power; and
  • a new general acquisition and interception power (section 702 of FISA, codified as 50 USC §1881a) that allows U.S. government agencies to compel access –possibly in real-time – to information from a diverse range of communications and data processing services. This second power has played a central role in populating the PRISM program.

Lots of problems surround the breadth of these powers and the secretive manner by which they have been interpreted. Very few substantive limits are placed on these powers. To make matters worse, these powers are interpreted secretly and are highly and effectively insulated from any adversarial challenge. This permits the government to adopt the most favourable interpretations it can devise, as has been shown in other contexts. The secret and non-adversarial context in which these interpretations are occurring is particularly problematic given the challenges inherent in applying privacy protections to technologically advanced state surveillance techniques.

Of the few existing internal limits FISA places on its powers, most relate to the need to limit exposure of U.S. persons. The only substantive protections that do not relate to this objective include a loose obligation that the powers be employed for foreign intelligence purposes, compatibility with the Fourth Amendment and the fact that both powers are subject to some limited, but highly secretive Judicial and Congressional review. None of these safeguards is highly reassuring, particularly to non-U.S. persons.

Safeguards primarily designed to limit exposure of U.S. persons

To the extent there are limitations placed on these two FISA powers, they are primarily designed to limit the exposure of U.S. persons. The business records power, for example, cannot be directed at U.S. persons solely on the basis of activities protected by the First Amendment. The general acquisition power can only be directed at persons reasonably believed to be located outside the United States and reasonably believed to be non-U.S. persons. A recent leak, however, suggests that the United States Government has secretly interpreted this to require only 51% assurance of foreignness.

The general acquisition power is also subject to general minimization (§1801 (h)) and targeting (§1881a (i)(2)(B)) procedures, which must be approved by FISC. The sole objective of these requirements is to minimize the targeting, collection and retention of private information of U.S. persons. Of course, it remains secret how the specific techniques adopted seek to achieve this. The business records power also includes minimization procedures, but these only relate to minimizing the retention and dissemination of non-public information concerning U.S. persons, not, apparently, its collection (§1861 (g)(2)).

It has become clear over the past several days that the Government and FISC have secretly interpreted these various safeguards in a woefully inadequate manner that fails to achieve even the basic requirement of insulating U.S. persons from their reach. Non-U.S. persons, however, will probably be most concerned by the fact that nothing in FISA or elsewhere in U.S. law seems to effectively limit the extent to which their own online activities are being surveiled.

Next in our Spies Without Borders series, we will examine how the few protections FISA offers to individuals outside the United States provide little or no protection under US law.

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June 15, 2013 Posted by | Civil Liberties, Full Spectrum Dominance, Progressive Hypocrite, Timeless or most popular | , , , , , , | Leave a comment

US Congress approves extension of secret surveillance under FISA

RT | September 12, 2012

The House of Representatives voted Wednesday to extend the government’s power to warrantlessly wiretap Americans for another five years by reauthorizing the 2008 amendments to the Foreign Intelligence Surveillance Act.

Lawmakers in the House agreed from Washington, DC on Wednesday afternoon to reauthorize the Foreign Intelligence Surveillance Act’s Amendments Act of 2008 (FAA), a polarizing legislation that has been challenged by privacy advocates and civil liberties organizations alike around the country. The extension was approved by a vote of 301 to 118.

The Foreign Intelligence Surveillance Act was first signed into law in 1978 by President Jimmy Carter, but amendments added two decades later under the George W Bush administration provide for the government to conduct widespread and blanketing snooping of emails and phone calls of Americans. The FISA Amendments added in 2008, specifically section 702, specify that the government can eavesdrop on emails and phone calls sent from US citizens to persons reasonably suspected to be located abroad without ever requiring intelligence officials to receive a court order.

If the US Senate echoes the House’s extension of the act, the FAA will carry through for another five years until 2017, ensuring the federal intelligence community that they will be able to conduct surveillance on the correspondence of the country’s own citizens well into the future. If no action is taken, the FAA is slated to expire at the end of 2012.

Earlier this year, a plea from two US senators to see how many times the FAA has been used was refused by the National Security Administration. Last month, San Francisco’s Electronic Frontier Foundation filed a lawsuit against the US Justice Department for failing to adhere to Freedom of Information Act requests for documents pertaining to the program.

“The FISA Amendments Act (FAA) of 2008 gave the NSA expansive power to spy on Americans’ international email and telephone calls,” the EFF explained in an official statement made after the suit was filed. “However, last month, in a letter to Senator Ron Wyden, a government official publicly disclosed that the NSA’s surveillance had gone even further than what the law permits, with the Foreign Intelligence Surveillance Court (FISC) issuing at least one ruling calling the NSA’s actions unconstitutional.”

Sen. Wyden, a Democratic lawmaker from Oregon who has also sit on the Senate intelligence committee for several years, originally asked for Senate to place a hold on the vote this past June. This week, Sen. Wyden tells Reuters, “My hold is on and it will stay on,” although that plea does not apply to the House, however, where lawmakers appeared eager on Wednesday to power through the vote.

So determined were some lawmakers to proceed, in fact, that the rules of the debates preceding Wednesday’s vote called for no more than one hour of discussion before ballots were cast. Several congressmen, including lawmakers that planned to vote yes on the FAA extension regardless, proposed a two year extension as a compromise, but no new amendments were allowed to be tacked on before Wednesday’s vote.

Despite opposition on and off the Hill, the FAA has received praise from some of Washington’s most elite members of the government, including Attorney General Eric Holder and long-standing lawmaker Rep. Lamar Smith (R-TX), the sponsor of the FAA renewal who also infamously urged Congress to approve the since-defeated Stop Online Piracy Act, or SOPA, a broad and dangerous Internet legislation that threatened to reshape the Web as we know it.

In his address at Northwestern University School of Law this past March, Mr. Holder said section 702 of the FAA “ensures that the government has the flexibility and agility it needs to identify and to respond to terrorist and other foreign threats to our security,” but emphasized the fact that only persons thought to be outside the US — not Americans — can be targeted. When Sens. Wyden and Udall asked to know how often that snooping involved Americans at all, however, they were told by the NSA’s Inspector General that a “review of the sort suggested would itself violate the privacy of US persons.”

On his part, Sen. Wyden has written, “that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act . . . Then it is possible that this number could be quite large.”

“Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American,” the lawmaker wrote in an official press release earlier this year.

Rep. Smith, the sponsor of both this bill and SOPA, has said, “We have a duty to ensure the intelligence community can gather the intelligence they need to protect our country.”

On Thursday, Rep. Smith claimed, “Foreign nations continue to spy on America to plot cyber-attacks and attempt to steal sensitive information from our military and private sector industries,” and that Congress has “a solemn responsibility to ensure that the intelligence community can gather the information” necessary to hinder these attempts.

Rep. Dan Lungren (R-California) added on Wednesday from the Hill that reauthorizing the FAA is “critical to the protection of the American people,” claiming that the United States, “as a nation had not done enough to connect the dots to warn us sufficiently to protect” against another terrorist attack on par with the ones that devastated America on September 11, 2001.

Rep. Trey Gowdy, a Republican congressman from South Carolina, also used the attack on the Twin Towers to justify the necessity of extending the FAA.
“If we could come together to remember 9/11, surely we can come together to prevent another one,” said Rep. Gowdy.

Opponents of the act, however, say that the attempts to do as such come at a cost too great for civil liberties.

“We’ve been told that we can’t even tell how many people are being subjected to this process located in the United States, and that we don’t know and they can’t tell us,” Rep. John Conyers (D-Michigan ) pleaded earlier this year in opposition to the act. “I think we can get a little bit closer. There can be some reasonableness. It’s this kind of vagueness that creates in those of us in the Congress, suspicions that are negative rather than suspicions that are positive.”

“Why can’t we know how many people are affected by FISA amendment act in the US?” Rep Conyers asked. “This kind of vagueness creates suspicions.”

Former Democratic presidential hopeful Rep. Dennis Kucinich (D-Ohio) said on his own part that those suspicions are even more validated since the Justice Department has declined to adhere to a Freedom of Information Act request for information on the FAA, explaining on Wednesday, “Everyone becomes suspect when big brother is listening.”

Rep Hank Johnson (D-GA) also threw his weight behind efforts to reject the act on Wednesday, saying it the FISA amendments allow for “illegal surveillance of an untold number of American citizens” with absolutely no oversight.

“Not even the NSA knows the extent to which FISA amendment acts have potentially been approved,” Rep Earl Blumenhauser (D-Oregon) added from the House floor before the vote.

The American Civil Liberties Union reports that, every day, the NSA intercepts and stores around 1.7 billion emails, phone calls, text and other electronic communications thanks to laws like FISA. To put it into perspective, they add, “that’s equivalent to 138 million books, every 24 hours.”

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

“Can you believe that 435 members of Congress who have sworn to uphold the Constitution are about to vote on a sweeping intelligence gathering law without this basic information?” she asks.

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September 12, 2012 Posted by | Civil Liberties, Full Spectrum Dominance, Timeless or most popular | , , , | Leave a comment

US: House to Vote on FISA Amendments Act Wednesday

By Michelle Richardson, ACLU Washington Legislative Office – September 10, 2012

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

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

Yet the House ambles on, ready to rubber stamp another five years of expansive surveillance that can pick up American communications without meaningful judicial oversight and without probable cause or any finding of wrongdoing.  Instead of blind faith in the executive branch, every member of the House should demand that the administration publicly disclose the following before proceeding with reauthorization:

•    Copies of FISA court opinions interpreting our Fourth Amendment rights under the FAA, with redactions to protect sensitive information (the Department of Justice can write summaries of law if necessary);
•    A rough estimate of how many Americans are surveilled under the FAA every year;
•    A description of the rules that govern how American information picked up by FAA surveillance is protected.

Can you believe that 435 members of Congress who have sworn to uphold the Constitution are about to vote on a sweeping intelligence gathering law without this basic information?

Act now to let them know that it’s time for Congress to fix FISA.

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September 11, 2012 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , | Leave a comment