Aletho News

ΑΛΗΘΩΣ

Feds: Even Though We’ve Been Ordered To Reveal Secret Interpretation Of The PATRIOT Act, We’re Not Going To Do That

By Mike Masnick | Techdirt | November 19, 2013

You may recall that, back in early September, the FISA Court (FISC) agreed that its various rulings that secretly interpreted Section 215 of the PATRIOT Act to mean something entirely different than any plain language reading of the law implies should be declassified. Here’s what the court said at the time:

The unauthorized disclosure in June 2013 of a Section 215 order, and government statements in response to that disclosure, have engendered considerable public interest and debate about Section 215. Publication of FISC opinions relating to this provision would contribute to an informed debate. Congressional amici emphasize the value of public information and debate in representing their constituents and discharging their legislative responsibilities. Publication would also assure citizens of the integrity of this Court’s proceedings.

In addition, publication with only limited redactions may now be feasible, given the extent of the government’s recent public disclosures about how Section 215 is implemented. Indeed, the government advises that a declassification review process is already underway.

In view of these circumstances, and as an exercise of discretion, the Court has determined that it is appropriate to take steps toward publication of any Section 215 Opinions that are not subject to the ongoing FOIA litigation, without reaching the merits of the asserted right of public access under the First Amendment.

It then instructed the DOJ to figure out what to redact, so it could be declassified and released. Except… the DOJ instead fought that order, and while it did find some documents that meet the criteria — namely a ruling from February of this year — the DOJ is now telling the FISA Court that despite the order, it would really prefer to keep that interpretation of the law a complete secret. Actually, it goes further than that. It doesn’t ask for permission to keep it secret, it just says that it cannot reveal the interpretation.

After careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided.

Got that? This secret court interpretation of a law that we all live under, which the court itself has ordered to be revealed, is unlikely to be revealed because the intelligence community really, really doesn’t want it revealed. Again, this is not about so-called “sources and methods.” This is entirely about understanding how a US court interprets a US law. But that interpretation is secret, meaning that the law itself is secret, and apparently the executive branch of the federal government is going to fight to keep it that way.

November 19, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance, Progressive Hypocrite | , , , , , | Comments Off on Feds: Even Though We’ve Been Ordered To Reveal Secret Interpretation Of The PATRIOT Act, We’re Not Going To Do That

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

Government Fights to Keep Court Opinions on NSA Spying Hidden From Public

By Alex Abdo | ACLU | July 16, 2013

Last month, we asked the secret Foreign Intelligence Surveillance Court—known as the FISC—to publish its legal opinions allowing the government to track the phone calls of essentially all Americans. Those secret opinions are critical to the ongoing debate about the NSA’s surveillance powers, but, perhaps even more importantly, they are the authoritative legal interpretations of a public law. Like the law itself, those opinions should be public. Given that fact, we were disappointed when, on July 5, the government opposed our request, arguing that the public is not entitled to read the FISC’s opinions.

Think about that for a minute. Our government believes that opinions of a federal court deciding what a controversial federal law actually means and whether sweeping surveillance conducted under that law is constitutional should be secret. And we’re not just talking about keeping secret the names of the government’s surveillance targets. The government’s filing was clear: The public doesn’t have the right to read even the FISC’s legal analysis.

Here is how we countered the government’s argument in the reply brief we filed late on Friday:

The First Amendment guarantees the public a qualified right of access to those opinions, because judicial opinions interpreting constitutional and statutory limits on governmental authorities— including those relevant to foreign-intelligence surveillance—have always been available for inspection by the public and because their release is so manifestly fundamental in a democracy committed to the rule of law.

The government’s contrary view—that legal opinions of an Article III court controlling the constitutional rights of millions of Americans may forever be denied to the public, even if any legitimate interest in secrecy has expired or can be accommodated—is wrong. Indeed, if the government succeeds in depriving the public of the tools necessary to understand the laws passed by its elected officials, it will have eroded the foundations of our democracy. The government’s theory affects more than the public’s right to this Court’s opinions; its reasoning would likewise deny the public a right of access to the opinions of courts sitting in review of those opinions, whether issued by the Court of Review or even the Supreme Court of the United States. That result would defeat democratic oversight and undermine public confidence in our legal institutions.

Our motion is now fully briefed and ready for the FISC to decide. Stay tuned.

July 16, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance, Progressive Hypocrite | , , , , , | Comments Off on Government Fights to Keep Court Opinions on NSA Spying Hidden From Public

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.

July 9, 2013 Posted by | Civil Liberties, Corruption, Deception, Full Spectrum Dominance | , , , , , , , , , | Comments Off on A Secret Court Making Secret Laws? That’s No Democracy

Reassured by NSA’s Internal Procedures? Don’t Be. They Still Don’t Tell the Whole Story.

By Kurt Opsahl and Mark Rumold | EFF | June 21, 2013

Yesterday, the Guardian released two previously-classified documents describing the internal “minimization” and “targeting” procedures used by the NSA to conduct surveillance under Section 702. These procedures are approved by the Foreign Intelligence Surveillance Court (FISC) on an annual basis and are supposed to serve as the bulwark between the NSA’s vast surveillance capabilities and the private communications of Americans. As we noted earlier today, the procedures, themselves, aren’t reassuring: far too much discretion is retained by NSA analysts, the procedures frequently resolve doubt in favor of collection, and information is obtained that could otherwise never be obtained without a warrant.

Which would be bad enough, if it were the end of the story. But it’s not.

The targeting and minimization documents released yesterday are dated a few months after the first publicly known scandal over the new FAA procedures: In April 2009, the New York Times reported that Section 702 surveillance had “intercepted the private e-mail messages and phone calls of Americans . . . on a scale that went beyond the broad legal limits established by Congress.” In June 2009, the Times reported that members of Congress were saying NSA’s “recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged.” Rep. Rush Holt described the problems as “so flagrant that they can’t be accidental.”

Presumably, following these “flagrant” abuses (and likely in response to the Congressional criticism of the original procedures), the government refined the procedures. The documents released yesterday are the “improved” targeting and minimization procedures, which appear to have been reused the following year, in 2010, in the FISC’s annual certification.

But these amended procedures still didn’t stop illegal spying under Section 702.

Unless the government substantially changed the procedures between August 2010 and October 2011, these are the very procedures that the FISC eventually found resulted in illegal and unconstitutional surveillance. In October 2011, the FISC issued an 86-page opinion finding that collection carried out under the NSA’s classified minimization procedures was unconstitutional. The opinion remains secret, but it is very likely that yesterday’s leaked NSA documents show the very minimization procedures the Director of National Intelligence admitted the FISC had found resulted in surveillance that was “unreasonable under the Fourth Amendment” and “circumvented the spirit of the law.”

And for good reason: the procedures are unconstitutional. They allow for the government to obtain and keep huge amounts of information it could never Constitutionally get without a warrant based on probable cause. As we explained, the procedures are designed such that the NSA will routinely fail to exclude or remove United States persons’ communications, and the removal of those communications are wholly entrusted to the “reasonable discretion” of an analyst.

EFF has been litigating to uncover this critical FISC opinion through the Freedom of Information Act and to uncover the “secret law” the government has been hiding from the American public. And EFF isn’t alone in fighting for the release of these documents. A bipartisan coalition of Senators just announced legislation that would require the Attorney General to declassify significant FISC opinions, a move they say would help put an end to precisely this kind of “secret law.”

When the government, and others, claim these procedures ensure your privacy is respected, know this: they’re only telling you half the story.

Take action now — to put an end to secret law, to demand the American public gets the full story, and to finally put an end to the NSA’s domestic spying program.

June 22, 2013 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , , | Comments Off on Reassured by NSA’s Internal Procedures? Don’t Be. They Still Don’t Tell the Whole Story.