Six Key Questions for the Obama Administration and Companies About Yahoo’s Cooperation With the NSA
By Neema Singh Guliani | ACLU | October 7, 2016
Since the Snowden disclosures, it has been clear that the NSA conducts unconstitutional, dragnet surveillance of Americans’ international communications. However, it now appears that the NSA is using surveillance authorities to conduct an entirely new type of surveillance: requiring major companies to conduct mass e-mail wiretaps, which involve searching the content of all incoming traffic.
If the news stories that broke earlier this week are accurate, here’s what we know:
Last year, Yahoo, in response to a classified government order, scanned hundreds of millions of mail accounts for a “set of characters” or digital “signature” of a communications method purportedly used by a state-sponsored terrorist organization. The search was apparently performed on all messages as they arrived at Yahoo’s servers. All of this was done without input from Yahoo’s security team, potentially placing users’ security at risk and ultimately prompting the resignation of the company’s chief security information officer.
It appears that a secret court, the Foreign Intelligence Surveillance Court (FISC), approved the surveillance—or at least approved the general procedures the government used to identify its targets. There are conflicting reports on what authority the government relied on.
Unfortunately, the news stories and Yahoo’s cryptic response leave more questions than answers. Yahoo’s ability to disclose information about this classified government program may be limited. But the Obama Administration owes the public far more information about this spying program, especially if it is going to fulfill its promise of increased transparency. As a start, the Obama Administration and other major tech companies should publicly answer the following questions:
1. What authority did the government rely on in compelling Yahoo to search its customers’ emails?
The million-dollar question – which remains unanswered – is what legal authority the government relied on for its demand to Yahoo. Initial reports suggested that the government may have relied on Section 702 of the Foreign Intelligence Surveillance Act (FISA), a highly controversial provision enacted as an amendment to FISA in 2008. More recently, however, news reports have stated that the government obtained what is known as a “traditional” FISA order under Title I of the statute. In either scenario, the surveillance would reflect a dramatic shift in the public understanding of how these authorities are used. Title I authorizes the government to search the communications of a particular person or entity. But, if news reports are accurate, it would mean that the government is now using this law to require that companies scan the content of all users’ incoming emails.
2. What is the program’s legal justification and has it been reviewed?
Whether government is relying on Section 702 or Title I, it seems to have strayed far from the original congressional intent. What is the government’s legal justification for this type of surveillance? And, if the surveillance was authorized by the FISC, was the court aware that its order required Yahoo to search the emails of hundreds of millions of innocent users?
In the past, the government and FISC have engaged in legal gymnastics to justify mass surveillance. The public and Congress have the right to know if this is happening yet again. The Obama Administration should release all legal memoranda it relied on in conducting the Yahoo surveillance, and it should disclose any relevant FISC opinions regarding the surveillance. If no such FISC opinions exist then the public deserves to know, as that itself is cause for concern.3. What types of content searches does the government believe it has the authority to conduct under Title I and Section 702, and are past statements about these authorities still accurate?
Intelligence officials have argued that surveillance programs conducted on U.S. soil are narrowly targeted because the government searches only for specific communication identifiers (like an email address) and not for keywords (like “bomb”). But the Yahoo story suggests that even this limitation may be falling to the wayside. If Yahoo conducted a broad search of its users’ incoming email for a “set of characters” or digital “signature,” that information may have been found in the content of communications. In other words, individuals may have been targeted not based on any preexisting suspicion about who they are or who they communicate with, but based solely on what they were communicating. Moreover, it is unclear whether this “signature” was used only by the target organization, or also by other wholly unaffiliated individuals. If the intelligence community is now engaging in this type of content-based surveillance, then the Obama Administration has a responsibility to set the record straight.
4. If the government relied on Section 702, did Yahoo attempt to filter out purely domestic communications?
Section 702 does not authorize the government to collect or search purely domestic communications. However, the stories contain no details about whether Yahoo made efforts to filter out purely domestic communications, and if so, how successful those efforts were. If such efforts were not made and the surveillance occurred under Section 702, then the Obama Administration should immediately disclose the number of purely domestic communications that were collected and searched under the order so that the public can fully assess the privacy implications.
5. If the government relied on Section 702, did the Privacy and Civil Liberties Board (PCLOB) know about this type of surveillance when they conducted their examination?
In 2014, the Privacy and Civil Liberties Board issued a report on Section 702. While we disagreed with many of the report’s conclusions, there is no doubt that the PCLOB declassified important information about Section 702 to facilitate a more robust debate. However, the PCLOB’s public report makes no mention of the types of demands that were purportedly received by Yahoo. If the PCLOB was unaware that this surveillance was occurring under Section 702, why were they not informed? If they knew, why was this information withheld from the public? Either way, this further calls into question the conclusions in the PCLOB report and the adequacy of existing oversight mechanisms.
6. How are other major companies interpreting their obligations under Section 702 and Title I?
Major companies like Google have issued statements saying they have never received the types of demands described in the Yahoo stories and reaffirming that they would challenge such a demand. While we applaud these companies for their statements, more information is needed to fully understand how the government is using its surveillance authorities. Specifically, we urge major technology companies to make publicly available information on how they interpret Section 702 and Title I, and to describe the types of demands that they believe clearly fall outside the statutes’ purview. In this way, companies can help to fill the information abyss left by the Yahoo story and the intelligence community’s lack of transparency.
Court Chooses to Ignore Overwhelming Evidence of NSA’s Mass Internet Spying
By Ashley Gorski | ACLU | October 24, 2015
A federal district court yesterday dismissed Wikimedia v. NSA, a lawsuit brought by the ACLU on behalf of a broad group of educational, legal, human rights, and media organizations whose communications are swept up by the NSA’s unprecedented Internet dragnet.
Our lawsuit concerns the NSA’s “upstream” surveillance, which involves the mass interception and searching of Americans’ international Internet communications. The court held that our clients lacked “standing” to bring suit, because they had not plausibly alleged that their communications were being monitored by the NSA. That’s just plain wrong.
The court’s opinion relies heavily on the Supreme Court’s decision in a previous ACLU lawsuit, Amnesty v. Clapper, a challenge to warrantless surveillance under the FISA Amendments Act of 2008. In February 2013, the Supreme Court dismissed that case on the grounds that the plaintiffs could not prove that they had communicated with the NSA’s targets.
But as we explained in court, our current challenge to the NSA’s warrantless spying is very different than the last one. Among other reasons, Clapper was decided prior to the Snowden revelations and extensive government disclosures about upstream surveillance. These revelations fundamentally changed the equation. Since Clapper, the public has learned that the NSA is not surveilling only its targets — it is instead surveilling virtually everyone, looking for information about those targets.
Some early takeaways from the district court’s opinion:
1.The court misunderstands how upstream surveillance is fundamentally different from and much more intrusive than the surveillance considered by the Supreme Court in Clapper.
Upstream surveillance is accomplished through the installation of devices directly on the Internet “backbone” — the network of high-capacity cables, switches, and routers across which Internet traffic travels. One particularly disturbing feature of upstream spying is known as “about” surveillance. Through this surveillance, the NSA is not simply plucking the communications to or from terrorists, spies, or other targets. Instead, it’s copying and searching through the contents of nearly everyone’s international communications, looking for information about its many targets. When the Supreme Court considered warrantless surveillance in Clapper, it was focused on whether the plaintiffs communicated with targets. At that time, the public had no idea that the NSA was essentially opening everyone’s international emails. Indeed, contrary to the district court’s understanding, “about” surveillance is in no way targeted:
2. The court ignores how Internet communications are structured — and why that requires the government to intercept at least some of our clients’ trillion-plus international communications.
Collectively, our clients engage in more than one trillion international Internet communications each year, with individuals in virtually every country on Earth. As we explained in our complaint, given the structure of the Internet, it is virtually impossible for the NSA to conduct upstream surveillance without intercepting at least some of plaintiffs’ communications. Yet the court dismissed these allegations, characterizing them as having “no basis in fact.”
3. Given how much is in the public record about upstream surveillance, our clients’ allegations are not “speculative” or “hypothetical.”
As the court acknowledged, at this early stage of the litigation, plaintiffs have to satisfy only a very low threshold: plausibility. Especially considering what’s publicly known about how upstream surveillance works, and the volume and distribution of our clients’ communications, their allegations are more than plausible.
4. The court’s opinion would insulate government surveillance from any legal challenge, except in cases where the government has already admitted its reliance on a particular program.
Although the court recognized that “no government surveillance program should be immunized from judicial scrutiny,” its analysis would do precisely that in the overwhelming majority of cases. If the court’s reasoning were correct, then the only people who could challenge NSA surveillance would be those told by the government they were spied on — a result at odds with well-established precedent and our system of checks and balances:
Our clients’ standing doesn’t depend on a supposition. There’s no question that the NSA is capturing and searching through their communications. That’s something the court — and everyone else — should find extremely disconcerting.
‘No customer oversight’: Dreaded cybersecurity bill CISA is back
RT | October 21, 2015
After a delay, cybersecurity legislation dreaded by privacy advocates and relentlessly pursued by national security officials, known as CISA, will get a vote on the Senate floor “in a couple of days,” a top sponsoring senator anticipates.
The Cybersecurity Information Sharing Act of 2015, also known as CISA, is as polarizing as it is close to a vote. It finally hit the Senate floor for debate on Tuesday, with top sponsor Senator Richard Burr (R-North Carolina) highlighting its necessity because “actors around the world continue to attack US systems, and in many cases penetrate it.”
Under the bill, private companies would have increased liability protection with respect to collecting American’s personal data that could potentially be related to security threats. It would also make it easier for them to share such data with the government, including departments like the National Security Agency.
Prominent CISA opponent and privacy advocate, Senator Ron Wyden (D-Oregon), challenged Burr, who chairs the Select Committee on Intelligence, on one argument in particular.
“He said that the most important feature of the legislation is that it’s voluntary. The fact is, it is voluntary for companies. It will be mandatory for their customers,” Wyden said, “and the fact is the companies can participate without the knowledge and consent of their customers, and they are immune from customer oversight and lawsuits if they do so.”
In many cases, customers have been able to nudge companies from a pro to a con position on CISA. In one instance last month, the Business Software Alliance (BSA) sent a letter to legislators, in part calling for “cyber threat information sharing legislation” granting them immunity so that they could “more easily share that information voluntarily.” However, after Fight for the Future, an internet freedom advocacy group, set up YouBetrayedUs.org to criticize the organizations, the BSA changed its tune.
The BSA, which includes Apple, IBM, and Microsoft, now opposes CISA, as does the Computer and Communications Industry Association, which includes Google, Facebook, and Amazon. Reddit, Wikimedia, Twitter, and Yelp have also released anti-CISA statements.
“Leading security experts argue that CISA actually won’t do much, if anything, to prevent future large-scale data breaches such as the federal government has already suffered, but many worry it could make things worse, by creating incentives for private companies and the government to widely share huge amounts of Americans’ personally identifiable information that will itself then be vulnerable to sophisticated hacking attacks,” added the American Library Association in a press release.
The discussion on CISA comes after a stall in the Senate’s schedule before its August recess. Lawmakers agreed to delay a vote on the bill when it became clear that senators had many amendments to submit, some of which included so-called “riders,” or unrelated issues, such as Senator Rand Paul’s (R-Kentucky) amendments to audit the Federal Reserve and defund “sanctuary cities.” At least 22 amendments will be given a chance to be added to CISA before a final passage vote.
Burr optimistically told The Hill that “a couple of days” was all that was needed to get to a final vote on CISA. He may have overshot, however, because there could be a scrimmage over amendments despite his efforts. Burr, with support of other Senate leaders, has managed to combine eight amendments into a legislative package he shares with CISA co-sponsor Senator Dianne Feinstein (D-California), but the grouping includes only one of Wyden’s two amendments.
Wyden told reporters that the one he feels “most strongly about” hadn’t been included. It would have provided a review system for deleting private info before data gets passed on to the government. The Wyden amendment that was included in the bill only requires that people be notified when their data is inappropriately shared.
Although no vote has been scheduled yet, Senate Majority Leader Mitch McConnell (R-Kentucky) is trying to end debate by Thursday. Beyond CISA, the Senate has an ambitious to-do list. It will decide whether to extend government spending beyond September 30, address the Iran nuclear deal, and fund highways and transportation systems in a comprehensive bill.
UK trade unionists, blacklisted activists demand police spying inquiry
RT | June 30, 2015
Trade unionists are demanding a full inquiry into ‘very troubling allegations’ of police spying on activists and blacklisted workers.
Home Secretary Theresa May has already set up an inquiry headed by Lord Justice Pitchford into allegations of police surveillance operations against activists, but its full remit is not yet known.
The inquiry has come about in response to allegations by police whistleblower Peter Francis, formerly of the Special Demonstration Squad, that during his four years working as an infiltrator of political groups he spied on member of five unions, including the Fire Brigades Union (FBU).
“Trade unions are the largest democratic, mass-membership organizations in the UK,” FBU General Secretary Matt Wrack told the Guardian.
“Trade unionists have legitimate concerns about police operations that may have undermined our decisions, interfered with industrial relations and led to the victimization of our elected officials.”
Wrack said an inquiry into allegations of police spying on causes such as environmentalism, the Stephen Lawrence murder case and trade unionism was “long overdue.”
Another group affected are those blacklisted by employers. Blacklist Support Group (BSG) secretary Dave Smith made an official submission to Pitchford last week regarding allegations of “collusion” between police and businesses.
“Trade unions are a perfectly legal part of civil society,” he told the Guardian.
“Why are we being infiltrated by undercover police units and why is the state sharing intelligence with big business?
“It is only because we were prepared to kick up a stink that the evidence about police collusion has slowly come to light.”
In March it was reported police spying had also been extended to Labour MPs. Francis revealed 10 Labour MPs were tailed and spied upon by British police. Those affected demanded the release of secret files kept on them.
The surveillance was carried out as recently as the 1990s when the politicians had been democratically elected to parliament.
Among the MPs targeted were prominent left-wingers and serving ministers Jeremy Corbyn, Diane Abbott and Dennis Skinner. The late Tony Benn, a lifelong socialist and anti-war campaigner, was also tailed by British police.
The highest-ranking MP to have been surveilled was Labour’s deputy leader Harriet Harman. Speaking to Penning, she said: “I would like you to assure me that you, the government, will let me see a full copy of my file.
“I was campaigning for the rights of women, for the rights of workers and the right to demonstrate — none of that was against the law, none of that was undermining our democracy.”
Read more: Labour witch-hunt: Spied-on MPs demand release of undercover police files
Suing to Defend Americans’ Right to Take Pictures in Public
By Julia Harumi Mass | ACLU | July 10, 2014
What does an 86-year-old art photographer have in common with a young man with a video game habit?
Not just a proclivity for perfectly innocuous hobbies, unfortunately. These days, engaging in either activity can get the FBI on your case.
Today, the ACLU and our partners at Advancing Justice–Asian Law Caucus and Bingham McCutchen are taking the federal government to court over a surveillance program that targets people even if they are engaging in entirely innocent and constitutionally protected activity, and encourages religious profiling. As if that weren’t enough, the Suspicious Activity Reporting (SAR) program also violates the government’s own rules for the collection of criminal intelligence.
James Prigoff is one of our clients. He is 86 years old, and a renowned photographer of public art. He has lectured at universities and had his work exhibited at museums around the world. In 2004, he was stopped by security guards in Boston while attempting to take photos of a famous piece of public art called the Rainbow Swash, which is painted on a natural gas storage tank. Several months later, the FBI tracked him down at his house in Sacramento to question him about his activities in Boston.
Tariq Razak, a young scientist and Pakistani-American, is another plaintiff in our case. He became the subject of a SAR after a visit to a train depot in Santa Ana, California, where he had an appointment with the county employment resource center. He walked around the depot looking for the resource center, and his mother, who was wearing a hijab, accompanied him. He later discovered that this conduct led to a SAR describing him as “a male of Middle Eastern descent” who was suspicious because he was “constantly surveying all areas of the facility” and because he met up with a “female in a white burka head dress.”
Our other clients were also unfairly targeted, falling under government scrutiny for activities ranging from buying computers to playing video games. Several of them were profiled due to their perceived religious beliefs.
These “suspicious activities” may be absurd, but there’s nothing funny about the program. The Department of Justice (DOJ) and the Information Sharing Environment, a post-9/11 agency tasked with coordinating national security intelligence-sharing, have adopted lax standards for what constitutes “suspicious activity.” These standards violate a DOJ regulation from 1978 that prohibits law enforcement from sharing “intelligence” about individuals unless the information is supported by reasonable suspicion of criminal activity. The 1978 regulation was adopted in the wake of prior domestic surveillance abuses.
Predictably, eschewing those protections has turned back the clock. The government is ignoring sensible limits on criminal intelligence collection and actively encouraging not just law enforcement, but also private security guards, shopkeepers, hotel owners, and even neighbors, to collect and share information about innocent conduct.
For example:
- Hotels are advised to be on the lookout for guests who “request specific room assignments or locations” or use “payphones for outgoing calls.”
- Rental car companies are instructed that “providing multiple names” on rental paperwork is to be “considered suspicious.”
- Hobby shops should be wary of customers with an “unusual interest” in remote-controlled aircraft and those who pay in cash.
- The general public is cautioned to report “unusual activity,” including “people acting suspiciously” and “people in places where they do not belong.”
If “acting suspiciously” or being somewhere someone thinks you don’t “belong” is enough to put people into federal counter-terrorism databases, it’s no wonder the databases are full of irrelevant information and reports targeting Muslims, South Asians, and Arab Americans. As you may remember from last year, actual SARs we obtained through Public Records Act requests include reports with subjects like “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.” It’s also no wonder law enforcement experts criticize the SAR program for “flooding” law enforcement with “white noise.”
Today our clients are challenging a program through which innocuous and even constitutionally protected activity is being reported as “suspicious” and leading to federal law enforcement scrutiny. This program not only violates federal privacy protections for “intelligence” sharing. It encourages a culture of fear and distrust, undermining our freedom with no known benefit to our safety.
Click here for more on our plaintiffs.
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US surveillance cameras raise privacy concerns
Press TV – February 6, 2014
Privacy advocates in the United States are concerned about a new class of surveillance cameras which are able to monitor an area the size of a small city for several hours at a time.
The cameras, built by Persistent Surveillance Systems, can spot people up to 25 miles away, The Washington Post reports.
The cameras, mounted on a fixed wing aircraft, can track every vehicle and person, enabling police, businesses and even private individuals to identify people and track their movements, the report says.
Ross McNutt, the president of Persistent Surveillance Systems, said the cameras have already been flown above major public events such as the Ohio political rally where Sen. John McCain (R-Ariz.) named Sarah Palin as his running mate in 2008.
He said they have also been flown above Baltimore; Philadelphia; Compton, Calif.; and Dayton in demonstrations for police.
McNutt, a former Air Force officer who helped design a similar surveillance system for use in wartime Iraq, said he hopes to deploy the systems around the country to help solve and deter crime.
However, the use of cameras in US cities is raising civil liberties concerns, though courts have put stricter limits on technology that can see things not visible to the naked eye, ruling that they can amount to unconstitutional searches when conducted without a warrant.
“If you turn your country into a totalitarian surveillance state, there’s always some wrongdoing you can prevent,” said Jay Stanley, a privacy expert with the American Civil Liberties Union. “The balance struck in our Constitution tilts toward liberty, and I think we should keep that value.”
War From Above
By Richard Hugus | Aletho News | December 31, 2013
Drone aircraft, which we first heard of as weapons of war used by the United States in foreign lands, are now poised for a full-scale invasion of the skies above the US itself. On December 30, 2013 the US Federal Aviation Administration announced its choices for drone testing in six states around the country — Alaska, Nevada, New York, North Dakota, Texas and Virginia. These six states may in turn do their testing in more than one location, For example, according to the Anchorage Daily News, drone testing centered in Alaska at the University of Alaska in Fairbanks will be called “the ‘Pan-Pacific Unmanned Aircraft Systems Test Range Complex.’ It includes six flight ranges in Alaska, four in Hawaii and three in Oregon.” According to the Honolulu Star Advertiser “the Pohakuloa Training Area on Hawaii island, the Pacific Missile Range Facility on Kauai and even the island of Niihau have been included in discussions of places where the testing could occur.” According to the East Oregonian, drone testing is likely to involve a former military base in Pendleton, Port of Tillamook, and Warm Springs. Likewise, the New York operation will be run from the former Griffiss Air Force base in Rome, NY and, according to the Cape Cod Times, will also include the former Otis Air Base on Cape Cod, Massachusetts. The Times reports that “the Cape site had the support of the state’s congressional delegation, a statewide military asset commission and business leaders” and that “among the institutions involved in the bid are Massachusetts Institute of Technology and Rochester Institute of Technology.”
What this story reveals is the creation of a huge web of DOD-connected Universities, businesses, corporations, defense contractors, and former and current Pentagon facilities spread all over the country. Included in this web are the many and various chambers of commerce, their boosters in the press, and numerous comprador “officials” anxious to bring federal money into their districts, at the expense of all the other people who live in them. Almost no news coverage has appeared that would imply the FAA decision was anything but a boon for the economy and the advent of a wonderful and inevitable new technology.
There is little news about the down side to hosting drones in all these areas of the country, each with a populace that has simply not been consulted. Drones first came to our attention at the beginning of “the war on terror.” We learned of them first as weapons for highly illegal, cowardly, and indiscriminate “targeted killings” in foreign lands. These weapons have murdered countless innocent people in Afghanistan, Iraq, Pakistan, Yemen, and Somalia pursuant to “kill lists” drawn up every week by the CIA and Pentagon, and approved by the White House. These weapons fulfill the US Air Force’s fantasy of “death from above,” carried out by pilots working in the security and comfort of US bases who, acting as judge, jury, and executioner, destroy supposed enemies from computer consoles as if it were a video game. The cowardliness of wars of aggression being conducted against innocent people in dirt-poor lands by unseen “UAV pilots” in air-conditioned offices thousands of miles away cannot be over-emphasized. This is what unmanned aircraft have brought so far to the reputation of the United States – a new low in the entire universe of human ethics; murder abroad is but the advance of capitalism at home. Wedding parties in Afghanistan have been decimated so that Amazon can deliver CDs and smart phones to our door by drone.
Nor is there news about the introduction of drones domestically as yet another assault on privacy and the human right to be free from surveillance. Domestic law enforcement agencies are just as anxious to spy on the US population and target people they call criminals as the Pentagon and CIA have been to spy on the rest of the world and kill people they call terrorists. It isn’t enough that our phones and computers have been turned by the NSA into astounding instruments of surveillance, that everything we say and do on these instruments is being harvested and stored, and that surveillance cameras are mounted at almost every business and public space. Now the national security state wants to have remote-controlled cameras videotaping us full-time from the sky. The police hope to have drones able to fire “non-lethal weapons” at people they deem to be involved in criminal activity so that they too can play God. Without question, non-lethal weapons will soon become lethal weapons and the US will be trying and executing citizens at home as it has done elsewhere without even a hint of due process.
The domestic military bases which are being revived by this brave new technology originally went out of business because there was nothing for them to do in the fulfillment of their original purpose – defending the country. Otis Air Base, now called “Joint Base Cape Cod”, is a case in point. It used to patrol the skies for Russian aircraft along the northeast coast and ended up being a disaster for the community in which it was situated because it polluted the local groundwater and sole-source drinking water aquifer with untold gallons of dumped jet fuel and cleaning solvents. It sent fighter jets to intercept the two planes hijacked to New York on September 11, 2001, but ended up being part of a ploy to let those planes actually reach the twin towers before they got there. This base and many others have been parasites on the communities around them. They will continue in that role in their new incarnation as hosts to drone spying and drone warfare. The war has come home. The people orchestrating this war – the global elite — have no particular allegiance to the United States. From their point of view, its land and its people must also be brought under control, just like everywhere else. How sad it is to see the scramble to welcome them.
Related articles
- Drone research funds to fly into Bay State (bostonherald.com)
- Drone Testing Starts Toward Bezos Vision as States See Jobs Gold – Businessweek (businessweek.com)
Data retention means you are on the record, like it or not
By Fiona de Londras, Durham University | November 6, 2013
Next month the advocate general of the Court of Justice of the EU (CJEU), Yves Bot, will publish an opinion on the extent to which the Data Retention Directive, one of the most controversial security measures introduced by the EU in the past decade, is compatible with human rights law. Although not a binding judgement (this will come later), the CJEU’s opinion is a significant intervention in the ongoing debate over how to balance human rights with states’ perceived surveillance needs.
The security-related retention of communications by telecoms firms was on the European agenda well before 9/11, but privacy concerns had led to a limited approach. Telecoms companies in the EU were obliged to delete communications data as soon as all business needs had been met; the data could not be retained for security or criminal investigation purposes. Some states had attempted to adjust this and introduce a retention system in 2000, but this failed – again, largely because of privacy concerns. All this changed, however, after 9/11.
As early as May 2002, a “data retention amendment” had been made to existing EU privacy laws to allow for security-related data retention, and drafts of a provision that would require retention began to circulate. Those proposals attracted so much rights-based criticism that they were apparently abandoned; however, they quickly reappeared in the wake of the London and Madrid bombings, and in 2006, the Data Retention Directive was adopted.
It obliges all member states to introduce national data retention regimes, even where -— as in the UK —- there had already been significant resistance to such regimes when they were previously proposed at national level. The directive requires telecommunications providers to retain data on the source, destination, time, date, duration and type of all communications by fixed and mobile telephone, fax and internet, and on the location and type of equipment used.
The data is to be retained for between six month and two years, with national law deciding on the duration, and can be accessed by state agencies investigating “serious crime” —- a term that has different definitions across the member states.
Blanket surveillance
The volume and extent of information retained under the directive is stunning; in effect, it has introduced a system of blanket surveillance across the entire EU. Although access to the information is regulated by law, state agencies can nonetheless access an enormous amount of information about our communications patterns and activities. This naturally raises serious human rights concerns, especially about privacy.
Security services insist that data retention is an indispensable tool for investigating serious crimes, such as terrorism and the production and distribution of child pornography. Yet different states make use of the Directive to wildly varying extents: in 2012, for example, Cyprus made 22 requests for access to data, while the UK made 725,467.
The question for the advocate general, the CJEU and the EU more broadly is whether or not the approach taken by the directive privileges perceived security needs over human rights. Data retention unquestionably constitutes a prima facie infringement on privacy; the real issue is whether this infringement is justified because it is necessary, effective, and limited. This question is at the core of all debates about “balance” in the security context: how far are we prepared to allow state power into our individual, family, social and democratic lives in order to “secure” us?
Answering this question requires us to decide on what we think “effectiveness” means in the context of security. If the directive helps to resolve a handful of serious crimes per year, or to prevent one terrorist attack, is it effective? Could a more limited approach -— such as requiring telecoms companies to collect data related to certain investigations but not to retain all data -— achieve the same security objectives while better protecting rights?
These are difficult questions, but they are ones we must resolve if we are to have a balanced security system. The advocate general’s opinion will be an important contribution to the debate, but it will not be the final word. Achieving a balanced approach to security requires critical scrutiny at practical, political, social and legal levels. This is all the more true given that, as the Data Retention Directive illustrates, security measures operate upon and have implications for the rights of all of us, all of the time.
Fiona de Londras is the Project Co-Ordinator of SECILE (Securing Europe through Counter-Terrorism: Impact, Legitimacy and Effectiveness), a project that has received funding from the European Union Seventh Framework Programme (FP7/2007-2013) under grant agreement n° 313195.
This article was originally published at The Conversation.
Read the original article.
Related articles
- Are YOU content for the EU & UK politicos to be party to every detail of your life? (ironiestoo.blogspot.com)
- Corporate interests dominate group working on EU data law (computerworld.co.nz)
- Dutch Telcos Used Customer Metadata, Retained To Fight Terrorism, For Everyday Marketing Purposes (techdirt.com)
- How to choose a VPN that actually protects your privacy – Abine (uwnthesis.wordpress.com)
Snowden Rebuts Sen. Feinstein’s Claims That The NSA’s Metadata Collection Is ‘Not Surveillance’
By Tim Cushing | Techdirt | October 25, 2013
Ed Snowden has briefly stepped up to the mic to rebut Dianne Feinstein’s claims that the NSA’s bulk phone records collections are “not surveillance.” While he didn’t specifically name Feinstein, it’s pretty clear who his comments are directed towards, what with the senator putting in overtime over the past few weeks defending the agency’s cherished but useless Section 215 collections haystacks that are definitely not collections (according to the Intelligence Dictionary.)
“Today, no telephone in America makes a call without leaving a record with the NSA. Today, no Internet transaction enters or leaves America without passing through the NSA’s hands,” Snowden said in a statement Thursday.
“Our representatives in Congress tell us this is not surveillance. They’re wrong.”
Her op-ed for the USA Today stated the following:
The call-records program is not surveillance.
Why is it not surveillance? Feinstein claimed, in direct contradiction to someone who’s seen most of the inner workings of the agency’s programs, that because it doesn’t sweep up communications or names, it isn’t surveillance. Also, she pointed out that surveillance or not, it’s legal. So there.
Maybe Feinstein considers the term “surveillance” to mean something closer to the old school interpretation — shadowy figures in unmarked vans wearing headphones and peering through binoculars.
Of course, this kind of surveillance contained many elements completely eliminated by the combination of the PATRIOT Act, the FISA Amendments Act, and a very charitable reading of the Third Party Doctrine. You know, the sort of stuff those shadowy men used to utilize: warrants, targeted investigations, reasonable suspicion, a grudging working relationship with the Fourth Amendment…
That’s all gone now. The courts have declared that sweeping up business records on millions of Americans is no more a violation of the Fourth Amendment than gathering metadata on a single person. The NSA has warped the definition of “surveillance” just as surely as they’ve warped the definition of “relevant.” The wholesale, untargeted gathering of millions of “transactions” from internet and phone activity doesn’t seem to resemble what anyone might historically think of as “surveillance,” but it’s surveillance nonetheless.
Sure, the NSA may not look at everything it gathers, but it has the capability to do so and it shows no interest in letting any of its dragnets be taken out of commission. The NSA’s defenders downplay the agency’s many intrusions by first playing the “legal” and “oversight” cards and, when those fail to impress, belittle their critics by trotting out condescending statements like, “The NSA isn’t interested in Grandma’s birthday phone call or the cat videos you email to your friends.”
Well, no shit. We’re hardly interested in that, either. We’re not worried about the NSA looking through tons of inane interactions. We know it doesn’t have the time or inclination to do so. We’re more concerned it’s looking at the stuff it finds interesting and amassing databases full of “suspicious” persons by relying on algorithms and keywords — a fallible process that robs everything of context and turns slightly pointed hay into the needles it so desperately needs to justify its existence.
What makes this even more frightening is that the agency then hands this unfiltered, untargeted, massive collection of data off to other agencies, not only in the US but in other countries, subjecting innocent Americans’ data to new algorithms, keywords and mentalities, increasing the possibility of false positives.
But what we’re mainly concerned about is the fact that an agency that claims its doing this to combat terrorism can’t seem to come up with much evidence that its programs are working. The NSA has deprived us of civil liberties while delivering next to nothing in terms of security. Americans have been sold out to a data-hungry beast, and even if it’s not officially “surveillance,” it’s still completely unacceptable.
Ex-FBI counsel implicated in surveillance abuses nominated to crucial federal bench
RT | September 11, 2013
The former top lawyer at the FBI deeply implicated in surveillance abuses revealed before and by Edward Snowden’s leaks was confirmed as a federal judge in a top court for terrorism cases this week.
The US Senate voted 73-24 on Monday in approving Valerie Caproni, Federal Bureau of Investigation general counsel from 2003 to 2011, to the Southern District of New York, one of the country’s most important federal courts for terrorism cases.
Caproni has received bipartisan criticism for allowing and defending surveillance abuses both found to be overbroad during her tenure and those not disclosed when she was counsel but later revealed to be inappropriate or illegal. For example, the Snowden leaks showed Caproni mischaracterized the limits of the Patriot Act during her term.
A 2010 report by the Department of Justice revealed the FBI inappropriately used non-judicial subpoenas called “exigent letters” to gather phone numbers of over 5,550 Americans until 2006.
“The FBI broke the law on telephone records privacy and the general counsel’s office, headed by Valerie Caproni, sanctioned it and must face consequences,” said John Conyers in April 2010 as chairman of the House Judiciary Committee.
Conyers called for Caproni’s firing at the time over the use of the non-judicial subpoenas, according to the Guardian.
“It’s not in the Patriot Act. It never has been. And its use, perhaps coincidentally, began in the same month that Ms Valerie Caproni began her work as general counsel,” Conyers said in 2010.
Caproni told House lawmakers in 2008 if phone numbers — acquired from telephone companies by the FBI via the non-judicial subpoenas evidently sanctioned in the Patriot Act — were not related to a “currently open investigation, and there was no emergency at the time we received the records, the records are removed from our files and destroyed.”
Yet revelations found in documents supplied by Snowden outlined how the National Security Agency stores phone records on all Americans for up five years no matter if they are associated with an open investigation or not. In addition, it’s been found that the NSA has the capability to feed the FBI phone records if there is a “reasonable articulable suspicion” they are related to terrorism.
“Caproni knew that the Bush administration could use or was using the Section 215 provision in the Patriot Act to obtain Americans’ phone records on a broad scale, an issue that has recently been documented by the whistleblower material first printed in the Guardian,” Lisa Graves, a former deputy assistant attorney general who dealt with Caproni while working on national security issues for the ACLU, told the Guardian.
In 2007, DOJ’s Inspector General Glenn Fine found the FBI was serially abusing National Security Letters — a demand regarding national security independent of legal subpoenas– to obtain business records, including “unauthorized collection of telephone or internet email transactional records.” While the larger collection of phone records was still not exposed at the time, Caproni called the inappropriate collection a “colossal failure on our part.”
“Government officials that secretly approved of overbroad surveillance programs the public is only seeing now because of leaks, and whose testimony on the issue obscured rather than revealed these abuses, should be held to account for their actions in a public forum,” former FBI agent Mike German told the Guardian.
Caproni’s nomination to the federal bench had some bipartisan opposition, but not enough to block her appointment.
“She is a woman with impeccable credentials,” Sen. Kirsten Gillibrand (D-N.Y.) said on the Senate floor Monday. “This country needs more women like her.”
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From the Archives
Jack Ruby: Israel’s Smoking Gun
BY LAURENT GUYÉNOT • UNZ REVIEW • NOVEMBER 13, 2021
By a strange paradox, most Kennedy researchers who believe that Oswald was “just a patsy” spend an awful lot of time exploring his biography. This is about as useful as investigating Osama bin Laden for solving 9/11. Any serious quest for the real assassins of JFK should start by investigating the man who shot Oswald at pointblank in the stomach at 11:21 a.m. on September 24, 1963 in the Dallas Police station, thereby sealing the possibility that a judicial inquiry would draw attention to the inconsistencies of the charge against him, and perhaps expose the real perpetrators. One would normally expect the Dallas strip-club owner Jack Ruby to be the most investigated character by Kennedy truthers. But that is not the case.
Of course, it is perfectly normal that Chief Justice Earl Warren, when Ruby told him on June 7, 1964, “I have been used for a purpose,” failed to ask him who had used him and for what purpose.[1] But what about independent investigators? Are only readers of the Forward (“News That Matters To American Jews”) worthy of being informed that “Lee Harvey Oswald’s Killer ‘Jack Ruby’ Came From Strong Jewish Background,” and that he told his rabbi Hillel Silverman that he “did it for the Jewish people”? … continue
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