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A Surveillance Bill by Any Other Name Smells Just As Foul

By Nathaniel J. Turner | ACLU | July 28, 2015

An impressive coalition has formed to oppose a new surveillance bill masquerading as cybersecurity legislation.

Privacy and civil liberties organizations, free market groups, and others from across the political spectrum are joining this week in a common chorus call: Stop CISA.

Proponents of CISA — the Cybersecurity Information Sharing Act — claim the Senate bill would help prevent cyber-crimes by improving information sharing between the government and the private sector. But in reality, CISA only succeeds in expanding government surveillance and weakening privacy while making Americans less secure online. The bill as drafted would have done nothing to stop the high-profile breaches at Sony, Anthem, and, most recently, the Office of Personnel Management, which holds terabytes of sensitive information about millions of government employees.

For several years, certain elements of the business community and national security hawks in Congress have pressed for legislation like CISA. In April, the House passed a package of similar cybersecurity information sharing bills, which were opposed by the ACLU and bevy of other privacy and civil liberties groups, but were in some ways dramatically better than the bill now pending in the Senate.

CISA’s vague language and expansive definitions will give the government new ways to collect and use the personal information and communications of innocent Americans, all without a warrant or any review by an independent court or overseer. CISA would allow companies to share information with the government relating to a “cybersecurity threat,” a term defined so broadly in the bill that it could include huge swaths of emails and text messages.  The handover of user information under CISA would be permitted even if otherwise prohibited by existing data privacy laws, like the Electronic Communications Privacy Act. The law would also give companies broad legal protections even if they improperly share consumer data.

And, perhaps unsurprisingly, the information shared by companies would automatically be forwarded to numerous intelligence, military, and law enforcement agencies, including the NSA and FBI.

Once in the government’s hands, CISA allows for the shared information to be used in garden-variety law enforcement cases that have nothing to do with cybersecurity. For example, the government could use private emails and messages received from communications providers like Comcast, Facebook, Google, or Verizon to investigate and prosecute whistleblowers who report serious misconduct to the press. That’s a serious concern given that the Obama administration has already prosecuted more national security whistleblowers than all other administrations combined.

As an added bonus for government snoopers, CISA also includes a new exemption to the Freedom of Information Act, which will make it harder for groups like the ACLU to obtain documents from the government to determine how it is using — or misusing — the shared information.  That means, for example, that it could be nearly impossible for us to find out how much private information is flowing from companies to the government or how the government is using it.

And despite CISA’s promise to open the floodgates for private information to flow to the government without any privacy protections, it fails at actually delivering better cybersecurity. As we learned with the hack at the OPM, the government is not a reliable guarantor of data security. Hackers were able to access the personal information of millions of Americans — including Social Security numbers, birthdates, and records about citizens’ finances, health, associations, and even sexual orientation—that applicants for security clearances must disclose to the government. All that additional information would make the government an even more desirable target for cybersnoops and cybercrooks.

CISA is more than just a bad solution to a serious problem. It would actually make cybersecurity worse while compromising basic democratic protections for personal privacy. The Senate must reject this surveillance bill. But if it decides to send this travesty to the president, he should veto the bill, consistent with his past threats against similarly atrocious bills.

Do your part to Stop CISA.

July 28, 2015 Posted by | Civil Liberties, Full Spectrum Dominance | , , , , , , , , | Leave a comment

U.S. Marshals Seize Local Cops’ Cell Phone Tracking Files in Extraordinary Attempt to Keep Information From Public

By Nathan Freed Wessler | ACLU | June 3, 2014

A run-of-the-mill public records request about cell phone surveillance submitted to a local police department in Florida has unearthed blatant violations of open government laws, including an incredible seizure of state records by the U.S. Marshals Service, which is part of the Justice Department. Today the ACLU and the ACLU of Florida filed an emergency motion in state court to preserve the public’s right of access to government records.

Over the past several months, the ACLU has filed dozens of public records requests with Florida law enforcement agencies seeking information about their use of controversial cell phone tracking devices known as “stingrays.” (The devices are also known as “cell site simulators” or “IMSI catchers.”) Stingrays track phones by mimicking service providers’ cell towers and sending out powerful signals that trick nearby phones — including phones of countless bystanders — into sending their locations and identifying information.

The Florida agencies’ responses to our requests have varied widely, with some stonewalling and others releasing records. The most recent request went to the Sarasota Police Department, and the fallout from that request has raised red flag after red flag.

RED FLAG #1: The Sarasota Police initially told us that they had responsive records, including applications filed by and orders issued to a local detective under the state “trap and trace” statute that he had relied on for authorization to conduct stingray surveillance. That raised the first red flag, since trap and trace orders are typically used to gather limited information about the phone numbers of incoming calls, not to track cell phones inside private spaces or conduct dragnet surveillance. And, such orders require a very low legal standard. As one federal magistrate judge has held, police should be permitted to use stingrays only after obtaining a probable cause warrant, if at all.

RED FLAG #2: The Sarasota Police set up an appointment for us to inspect the applications and orders, as required by Florida law. But a few hours before that appointment, an assistant city attorney sent an email cancelling the meeting on the basis that the U.S. Marshals Service was claiming the records as their own and instructing the local cops not to release them. Their explanation: the Marshals Service had deputized the local officer, and therefore the records were actually the property of the federal government.

We emphatically disagree, since the Sarasota detective created the applications, brought them to court, and retained the applications and orders in his files. Merely giving him a second title (“Special Deputy U.S. Marshal”) does not change these facts. But regardless, once the Sarasota Police Department received our records request, state law required them to hold onto the records for at least 30 days, to give us an opportunity to go to court and seek an order for release of the documents.

Instead of complying with that clear legal obligation, the local police allowed the records to disappear by letting the U.S. Marshals drive down from their office in Tampa, seize the physical files, and move them to an unknown location. We’ve seen our fair share of federal government attempts to keep records about stingrays secret, but we’ve never seen an actual physical raid on state records in order to conceal them from public view.

RED FLAG #3: Realizing we weren’t going to get hold of the Sarasota Police Department’s copies of the applications and orders anytime soon, we asked the county court if we could obtain copies from its files. Incredibly, the court said it had no copies. The court doesn’t even have docket entries indicating that applications were filed or orders issued. Apparently, the local detective came to court with a single paper copy of the application and proposed order, and then walked out with the same papers once signed by a judge.

Court rules — and the First Amendment — require judges to retain copies of judicial records and to make them available to the public, but the court (and the detective) completely flouted those requirements here.

The ACLU’s emergency motion seeks a temporary injunction preventing the Sarasota Police Department from transferring any more files to the U.S. Marshals, as well as a determination that the police violated state law by sending the stingray applications and orders to the Marshals Service in the first place and an order requiring the police to produce the records.

When the government obtains court authorization to use invasive surveillance equipment, the public should not be kept in the dark. We have open records laws for a reason, but they mean nothing if the government can violate their clear commands at its whim.

June 4, 2014 Posted by | Civil Liberties, Deception, Full Spectrum Dominance, Progressive Hypocrite | , , | Leave a comment