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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

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

RT | October 23, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Judge sides with FBI in Orange County Muslim spying suit

RT | August 15, 2012

A US federal judge dismissed a lawsuit against the FBI over the agency’s controversial practice of spying on California Muslims, arguing the disclosure of a potentially unconstitutional domestic spy program might reveal sensitive state secrets.

District Judge Cormac J. Carney ruled that “the state secrets privilege may unfortunately mean the sacrifice of individual liberties for the sake of national security,” the LA Times reported.

Judge Carney claims to have reached his conclusion after reviewing confidential statements by top FBI officials. The judge ruled that the domestic espionage program – dubbed Operation Flex – involved “intelligence that, if disclosed, would significantly compromise national security.”

The lawsuit against the FBI was filed jointly by the American Civil Liberties Union (ACLU) and the Council of American Islamic Relations (CAIR) in 2011, on behalf of the Muslim community in Orange Country, California.

The litigants claim the FBI violated their civil liberties by employing an undercover informant, identified as Craig Monteilh, in a dragnet operation that targeted individuals on the basis of their religious beliefs. Monteilh infiltrated local mosques and installed bugging devices in offices, homes and places of worship.

ACLU attorney Peter Bibring said the ruling is “terribly unfortunate that there’s a doctrine in the law that allows courts to throw out cases that allege serious constitutional violations based on secret evidence the judge reviews behind closed doors that never sees the light of day,” the LA Times cited him as saying. “That shouldn’t be in a democratic society.”

The plaintiffs vowed to appeal the decision.

Monteilh previously admitted to spying on the Islamic Center of Irvine from July 2006 to October 2007, as well as ten other Southern California mosques.

Financial incentives and pressure from his FBI handler led him to use entrapment and other unethical tactics to ensnare targets “on a daily basis for over a year,” Monteilh said to RT in April. He also described how blackmail was used to force other Muslims to turn informant.

“That was part of my role in Operation Flex,” he said. “For example, in my conversations, or in their private conversations, certain things would come up. Like if a Muslim man was married and he had a girlfriend, a mistress, the FBI would use that information to blackmail that individual to become an informant. Or someone, perhaps, had a different sexual orientation. Or a certain youth had recreational drug use or desire to use certain narcotics. The FBI would use this information to blackmail them to become an informant.”

Montelih explained how the FBI supplied him with ‘fobs’ – sophisticated surveillance devices the size of a car remote – which he routinely planted at “the Imams’ offices, in certain board members’ offices, certain worshipers’ cars, in their homes” and “around the mosques where I would frequently pray.” He also described using a secret video recorder that had been sewn into his shirt.

He claims the operation eventually expanded abroad, and grew to involve the Drug Enforcement Administration (DEA) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Monteilh was previously convicted and served time for cashing fraudulent checks. He also filed a suit against the government, alleging that his rights had been violated and his life was endangered while employed by the FBI. His case was dismissed earlier this year.

A portion of the case may still go to trial, with Judge Carney branding some of the civil liberties violations of Operation Flex “disturbing.”

Judge Carney permitted the suit to stand against five individual FBI agents – though not the entire bureau – under the Foreign Intelligence Surveillance Act. The act, signed into law in 1978, imposed certain procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers,” which in some cases may include American citizens and permanent residents suspected of being engaged in espionage.

The FBI admitted that Monteilh was used during the operation, but has denied engaging in any unconstitutional practices, claiming that the bureau was investigating credible evidence of potential terrorist activity.

Attorneys representing two of the agents being charged say there is little they can do to defend their clients against Monteilh’s accusations, as the information surrounding their investigation was classified.

“Our clients literally are defenseless to defend themselves,” attorney David Scheper said. “It’s just not a fair fight.”

~~~


Civil rights attorneys to appeal FBI Muslim spying lawsuit decision

August 15, 2012 Posted by | Civil Liberties, Full Spectrum Dominance, Islamophobia, Video | , , , , , , | 1 Comment

Why The NSA Can’t Be Trusted to Run U.S. Cybersecurity Programs

By Mark M. Jaycox and Lee Tien and Trevor Timm | EFF | July 30, 2012

This week, the Senate will be voting on a slew of amendments to the newest version of the Senate’s cybersecurity bill. Senators John McCain and Kay Bailey Hutchison have proposed several amendments that would hand the reins of our nation’s cybersecurity systems to the National Security Agency (NSA). All of the cybersecurity bills that have been proposed would provide avenues for companies to collect sensitive information on users and pass that data to the government. Trying to strike the balance between individual privacy and facilitating communication about threats is a challenge, but one thing is certain: the NSA has proven it can’t be trusted with that responsibility. The NSA’s dark history of repeated privacy violations, flouting of domestic law, and resistance to transparency makes it clear that the nation’s cybersecurity should not be in its hands.

In case you need a refresher, here’s an overview of why handing cybersecurity to the NSA would be a terrible idea:

  1. An executive order generally prohibits NSA from conducting intelligence on Americans’ domestic activities
    Executive Order 12333 signed by President Reagan in 1981 (and amended a few times since1), largely prohibits the NSA from spying on domestic activities:

    no foreign intelligence collection by such elements [of the Intelligence Community] may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons.

    If amended, the Cybersecurity Act would allow the NSA to gain information related to “cybersecurity threat indicators,” which would allow it to collect vast quantities of data that could include personally identifiable information of U.S. persons on American soil. Law enforcement and civilian agencies are tasked with investigating and overseeing domestic safety. The NSA, on the other hand, is an unaccountable military intelligence agency that is supposed to focus on foreign signals intelligence—and it’s frankly dangerous to expand the NSA’s access to information about domestic communications.

  2. NSA has a dark history of violating Americans’ constitutional rightsIn the 1960’s, a Congressional investigation, led by four-term Senator Frank Church, found that the NSA had engaged in widespread and warrantless spying on Americans citizens. Church was so stunned at what he found, he remarked that the National Security Agency’s “capability at any time could be turned around on the American people, andno American would have any privacy left, such is the capability to monitor everything.” (emphasis added) The investigation led to the passage of the Foreign Intelligence Surveillance Act, which provided stronger privacy protections for Americans’ communications—that is, until it was weakened by the USA-PATRIOT Act and other reactions to 9/11.
  3. NSA has continued its warrantless wiretapping scandalIn 2005, the New York Times revealed that the NSA set up a massive warrantless wiretapping program shortly after 9/11, in violation of the Fourth Amendment and several federal laws. This was later confirmed by virtually every major media organization in the country. It led to Congressional investigations and several ongoing lawsuits, including EFF’s. Congress passed the FISA Amendments Act to granttelecom companies retroactive immunity for participating in illegal spying and severely weaken privacy safeguards for Americans communicating overseas.Since the FISA Amendments Act (FAA) passed, the NSA has continued collecting emails of Americans. A 2009 New York Times investigation described how a “significant and systemic” practice of “overcollection” of communications resulted in the NSA’s intercepting millions of purely domestic emails and phone calls between Americans. In addition, documents obtained via a Freedom of Information Act request by the ACLU, although heavily redacted, revealed “that violations [of the FAA and the Constitution] continued to occur on a regular basis through at least March 2010″— the last month anyone has public data for.
  4. NSA recently admitted to violating the Constitution.Just last week, the Office of the Director of National Intelligence—which oversees the NSA—begrudgingly acknowledged that “on at least one occasion” the secret FISA court “held that some collection… used by the government was unreasonable under the Fourth Amendment.” Wired called it a “federal sidestep of a major section of the Foreign Intelligence Surveillance Act,” and it confirmed the many reports over the last few years: the NSA has violated the Constitution.
  5. NSA keeps much of what it does classified and secretBecause cybersecurity policy is inescapably tied to our online civil liberties, it’s essential to maximize government transparency and accountability here.  The NSA may be the worst government entity on this score.  Much of the NSA’s work is exempt from Freedom of Information Act (FOIA) disclosure because Congress generally shielded NSA activities from FOIA2. Even aside from specific exemption statutes, much information about NSA activities is classified on national security grounds. The NSA has also stonewalled organizations trying to bring public-interest issues to light by claiming the “state secrets” privilege in court. EFF has been involved in lawsuits challenging the NSA’s warrantless surveillance program since 2006. Despite years of litigation, the government continues to maintain that the “state secrets” privilege prevents any challenge from being heard.  Transparency and accountability simply are not the NSA’s strong suit.

We remain unconvinced that we need any of the proposed cybersecurity bills, but we’re particularly worried about attempts to deputize the NSA as the head of our cybersecurity systems. And even the NSA has admitted that it does “not want to run cyber security for the United States government.”

Thankfully, new privacy changes in the cybersecurity bill heading towards the Senate floor have explicitly barred intelligence agencies like the NSA from serving as the center of information gathering for cybersecurity. We need to safeguard those protections and fend off amendments that give additional authority to the NSA. We’re asking concerned individuals to use our Stop Cyber Spying tool to tweet at their Senators or use the American Library Association’s simple tool to call Senators. We need to speak out in force this week to ensure that America’s cybersecurity systems aren’t handed to the NSA.

  • 1. Executive Order 12333 was amended in 2003 by Executive Order 13284, in 2004 by Executive Order 13355, and in 2008 by Executive Order 13470. The resulting text of Executive Order 12333 is available here (pdf).
  • 2. Three of the most common statutes that NSA uses to fight transparency: Section 6 of the National Security Agency Act of 1959 (Public Law 86-36, 50 U.S.C. Sec. 402 note), which provides that no law shall be construed to require the disclosure of, inter alia, the functions or activities of NSA; The Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. Sec. 403- 1(i), which requires under the Responsibilities and Authorities of the Director of National Intelligence that we protect information pertaining to intelligence sources and methods; and 18 U.S.C. Sec. 798, which prohibits the release of classified information concerning communications intelligence and communications security information to unauthorized persons.
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July 31, 2012 Posted by | Civil Liberties, Deception, Full Spectrum Dominance | , , , , , , | Leave a comment

Three NSA Whistleblowers Back EFF’s Lawsuit Over Government’s Massive Spying Program

EFF Asks Court to Reject Stale State Secret Arguments So Case Can Proceed

EFF | July 2, 2012

San Francisco – Three whistleblowers – all former employees of the National Security Agency (NSA) – have come forward to give evidence in the Electronic Frontier Foundation’s (EFF’s) lawsuit against the government’s illegal mass surveillance program, Jewel v. NSA.

In a motion filed today, the three former intelligence analysts confirm that the NSA has, or is in the process of obtaining, the capability to seize and store most electronic communications passing through its U.S. intercept centers, such as the “secret room” at the AT&T facility in San Francisco first disclosed by retired AT&T technician Mark Klein in early 2006.

“For years, government lawyers have been arguing that our case is too secret for the courts to consider, despite the mounting confirmation of widespread mass illegal surveillance of ordinary people,” said EFF Legal Director Cindy Cohn. “Now we have three former NSA officials confirming the basic facts. Neither the Constitution nor federal law allow the government to collect massive amounts of communications and data of innocent Americans and fish around in it in case it might find something interesting. This kind of power is too easily abused. We’re extremely pleased that more whistleblowers have come forward to help end this massive spying program.”

The three former NSA employees with declarations in EFF’s brief are William E. Binney, Thomas A. Drake, and J. Kirk Wiebe. All were targets of a federal investigation into leaks to the New York Times that sparked the initial news coverage about the warrantless wiretapping program. Binney and Wiebe were formally cleared of charges and Drake had those charges against him dropped.

Jewel v. NSA is back in district court after the 9th U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion for partial summary judgment filed today, EFF asked the court to reject the stale state secrets arguments that the government has been using in its attempts to sidetrack this important litigation and instead apply the processes in the Foreign Intelligence Surveillance Act that require the court to determine whether electronic surveillance was conducted legally.

“The NSA warrantless surveillance programs have been the subject of widespread reporting and debate for more than six years now. They are just not a secret,” said EFF Senior Staff Attorney Lee Tien. “Yet the government keeps making the same ‘state secrets’ claims again and again. It’s time for Americans to have their day in court and for a judge to rule on the legality of this massive surveillance.”

For the full motion for partial summary judgment:
https://www.eff.org/document/plaintiffs-motion-partial-summary-judgment

For more on this case:
https://www.eff.org/cases/jewel

Contacts:

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

Lee Tien
Senior Staff Attorney
Electronic Frontier Foundation
tien@eff.org

July 3, 2012 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , | Leave a comment

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