Reps. Goodlatte And Ruppersberger Admit That NSA Is Warrantlessly Spying On Americans' Communications

from the well,-there-you-go... dept

Fri, Jun 20th 2014 10:59am — Mike Masnick

We've already written about the surprising, but encouraging, vote late last night to defund backdoor searches by the NSA. But it's worth looking at some of the floor debate on the amendment last night -- in particular the push against the amendment from Reps. Goodlatte and Ruppersberger, who both appear to flat out admit that the NSA does warrantless spying on Americans' communications, in direct contrast to earlier claims. The reasons for these two to argue against the amendment are clear. Goodlatte was the guy who negotiated the "deal" with the White House and the House Intelligence Committee to completely water down the USA Freedom Act, and he knows that this amendment puts some of the substance that he stripped out right back in. Ruppersberger, of course, represents the district where the NSA is headquartered, and is the ranking member for the House Intelligence Committee. His loyalty to the NSA over the American public has always been clear. But to have them basically admit that the NSA does warrantless spying on Americans is quite impressive. Here are both of them arguing against the amendment:

Goodlatte kicks it off by whining about how this undoes the "carefully negotiated compromise" in the USA Freedom Act. He leaves out that "carefully negotiated" was what happened after the markup, completely changing the nature of the bill. However, in describing the "existing minimization procedures," he notes (correctly) that the NSA isn't supposed to do searches on Americans, but then puts in the all-important "except" which undermines the whole thing and shows that the NSA is (contrary to the law) spying on the communications (not metadata) of Americans:

HR 3361 [the USA Freedom Act] also prohibits the government from using communications to or from a United States person or a person who appears to be located in the United States EXCEPT where the communication relates to a target under Section 702 or to protect against an immediate threat to human life.

Yeah, that's a pretty big "except." Remember, the NSA is not supposed to ever look at communications by anyone inside the US or an American citizen abroad without a warrant. Yet, Goodlatte flat out admits that the NSA does exactly that if the communications (again, not just metadata) "relate to a target." Now, remember, in discussing this how we recently highlighted that "relate to a target" means any communication about a target? In other words, Goodlatte is more or less admitting that if you merely mention Al Qaeda or Osama bin Laden in an email, the NSA has the right to read your email without a warrant. That's the backdoor search that so many people have been concerned about, which very clearly violates the 4th Amendment's requirement for a warrant. And here is Goodlatte pretending it's no big deal.

Goodlatte then notes that the NSA can't use Section 702 to "target" a US person, but that's misleading. Because the NSA can collect communications "to" "from" or "about" a target, it means that tons of communications (again, not just metadata) by US persons are being spied on by the NSA entirely without a warrant. And this gets bigger and bigger when the "target" is defined broadly.

Then Ruppersberger jumps in to add his "thoughts" on the amendment. He too flat out lies, and claims that the USA Freedom Act was a one-year process of "carefully considered negotiation and debate." That's not even remotely accurate. The original was left to sit and dangle until it appeared that there might be enough support for it, and then frantic negotiations took place to water it down before the markup. Then, after the markup, the White House stepped in and watered it down even further at the very last minute, so that most of those voting on it had no idea what was actually in it, and how it stripped out nearly every thing that "limited" the NSA. Then, he too, admits how it allows for warrantless spying on Americans, by spewing FUD about bomb threats in the US:

It makes our country less safe. It would prohibit the urgent search of lawfully collected information to thwart a bomb threat against a synagogue in Los Angeles, a church in Maryland or the New York Stock Exchange.

In other words, contrary to the claims before, Ruppersberger is directly admitting that it's used to spy on communications in the US. And, again, it wouldn't prohibit searches with a warrant, which are (contrary to what some claim) not that difficult to get.

Five minutes later, Goodlatte speaks again, and this time he's much angrier than before (perhaps having received some advanced warning that this amendment was going to pass overwhelmingly):

He kicks it off by saying that the USA Freedom Act "honors the 4th Amendment." But then goes on a FUD brigade, listing out a bunch of angry claims about terrorists in the middle east and how they want to attack us. Then there's the inevitable claims about how "the terrorism threat is growing" (which kind of undermines the claims that all this intelligence has been useful, no?), and ridiculously argues that this amendment "creates a blind spot" for the intelligence community. It does not. It just says that you need to have an actual warrant for spying on the communications of US persons, meaning that they can't just sweep up every email of every person who obliquely references "a target." Then, once again, he effectively admits that this is about spying on Americans:

[It would] create an impediment to the government's ability to locate threat information already in its possession.

This is misleading, but revealing. All the amendment did was say that the NSA can't do searches on the communications of US persons. The "impediment" is merely making sure that the NSA obeys the law which says it cannot spy on the communications of US persons without a warrant. By arguing that this creates an impediment to "threat information already in its possession," Goodlatte is admitting that the NSA is collecting communications of Americans without a warrant.

So, yeah, the next time someone argues that the NSA is either (a) not spying on Americans or (b) not spying on the actual content of communications, you might want to point them at these clips, in which two of the bigger NSA defenders have admitted that, in fact, that's exactly what the NSA does.

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Filed Under: 4th amendment, bob goodlatte, dutch ruppersberger, massie amendment, nsa, section 702, surveillance, warrantless surveillance, warrants

23 Comments

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Digger, 20 Jun 2014 @ 11:13am

Just arrest them for treason
If they won't stop the illegal antics of the NSA and other executive branch traitors, then they're just as guilty, aiding and abetting the treasonous activities.

Arrest them, try them, execute them.
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Michael, 20 Jun 2014 @ 11:13am

the USA Freedom Act "honors the 4th Amendment."

In the same way I "honored" my toilet this morning.
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Michael, 20 Jun 2014 @ 11:15am

Re: Just arrest them for treason
If they were working with fake agencies on a plot that had been made up involving fake documentation and had to real chance of impacting the lives of Americans, the FBI would be all over this.
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Anonymous Coward, 20 Jun 2014 @ 11:38am

Re: Just arrest them for treason
You sir appear to be a domestic terrorist
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Anonymous Coward, 20 Jun 2014 @ 11:48am

"In other words, Goodlatte is more or less admitting that if you merely mention Al Qaeda or Osama bin Laden in an email, the NSA has the right to read your email without a warrant."

So how long will it take till Mike gets SWATTED by the NSA? In all honesty, Goodlatte and Ruppersberger remind me of Animal Farm: �All animals are equal, but some animals are more equal than others.� I.E. I wonder if Anonymous started printing out their emails and phone records, if they would feel the same way.
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Anonymous Coward, 20 Jun 2014 @ 12:24pm

You can bet with the topics covered this website is watched closely as a heartbeat of what the informed American public thinks (rare as that is). It also draws a bit of attention from other countries and so again is a collection point of interest.

I am not saying anyone in charge of the site is co-operating with this. I'm only saying that the NSA has it's own means that don't require co-operation and the topics are things the NSA wants data on. So in speculation I would think this site is watched closely.

Before this bill makes it to the senate another round of "carefully considered negotiation and debate" will occur in a panicked effort to head this off and water it down. I believe right now that the senate is getting an ear full about the watering down the USA Freedom Act, how many are withdrawing support for it, and why.

The last comment I have on all this, is that this is a grassroots as well as global corporation snowball that is slowly getting bigger as time goes on. The Snowden revelations have kept it in the forefront of public knowledge and attention. Each time the efforts get a little closer, despite all that the administration, DOJ, police forces, and the spying branches can do to head it off. Sooner or later this will happen that much of what the NSA does won't be legal domestically.
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Anonymous Coward, 20 Jun 2014 @ 12:58pm

only 10 minutes of debate?
Ruppersberger is upset that there's only 10 minutes of debate for this amendment?!

People have been debating this for over a year - and the original Freedom Act, that he hails as a thing of careful, deliberative beauty, had this exact ban for a long period of time, and then, quickly (without much real debate) took it out.
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Anonymous Coward, 20 Jun 2014 @ 1:03pm

The only way they could know that a communication is about someone is if they look at the content of the communications. This means they're reading everyone's email.
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tomczerniawski, 20 Jun 2014 @ 1:15pm

I want to see Ruppersberger behind bars.
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Anonymous Coward, 20 Jun 2014 @ 1:15pm

Clapper admits it too
During the debate, Massie subitted this letter into the record:

Dear Senator Wyden:

During the January 29, 2014, Worldwide Threat hearing, you cited declassified court documents from 2011 indicating that NSA sought and obtained the authority to query information collected under Section 702 of the Foreign Intelligence and Surveillance Act (FISA), using U.S. person identifiers, and asked whether any such queries had been conducted for the communications of specific Americans.
As reflected in the August 2013 Semiannual Assessment of Compliance with Procedures and Guidelines Issued Pursuant to Section 702, which we declassified and released on August 21. 2013, there have been queries, using U.S. person identifiers, of communications lawfully acquired to obtain foreign intelligence by targeting non U.S. persons reasonably believed to be located outside the U.S. pursuant to Section 702 of FISA. These queries were performed pursuant to minimization procedures approved by the FISA Court as consistent with the statute and the Fourth Amendment. As you know, when Congress reauthorized Section 702, the proposal to restrict such queries was specifically raised and ultimately not adopted.
For further assistance, please do not hesitate to contact Deirdre M. Walsh in the Office of Legislative Affairs, at (703) 275-2474.
Sincerely,
James R. Clapper.

source: https://beta.congress.gov/congressional-record/2014/house-section/page/H5545
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Anonymous Coward, 20 Jun 2014 @ 1:17pm

Re: Clapper admits it too
Sorry, bad link. Try https://beta.congress.gov/congressional-record/2014/06/19/house-section/article/H5514-1 (and then do a search of '5545' to scan down to the appropriate section of the debate.)
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Anonymous Coward, 20 Jun 2014 @ 1:30pm

Big Props to Lofgren for saving this
From the record -

The Acting CHAIR. The question is on the amendment offered by the gentleman from Kentucky (Mr. Massie). The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Ms. LOFGREN. Mr. Chairman, I demand a recorded vote.

When representatives got their names written down, the result of the vote reversed. Funny how that works. (I would think that recording would be the default for all votes- go figure).
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That One Guy (profile), 20 Jun 2014 @ 1:46pm

Re: Big Props to Lofgren for saving this
Typical politics, when they can screw over the public anonymously, they are all for it, but when their names are attached to it, suddenly they're all for protecting their constituents, or at least pretending to do so.
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Jason, 20 Jun 2014 @ 1:56pm

Re: Re: Big Props to Lofgren for saving this
I certainly don't disagree that having their names attached can change the outcome, but there is another possibility, however remote it may be.

Way back, my father related an occurrence that was somewhat common on a committee he was involved with. (I forget the specifics; they don't matter in this case.) The chairman would purposely announce "the nays have it" (or the ayes) even when it was obvious to anyone that they didn't. He did this to force someone to do exactly what Representative Lofgren did, to call for a recorded vote, thus making sure everyone had to go on record.

It's possible, however unlikely, that something similar happened here. The chair, whatever their opinion on the matter, wanted to prod someone into calling for a roll call and thus make sure each vote was recorded.
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Anonymous Coward, 20 Jun 2014 @ 4:31pm

"In other words, Goodlatte is more or less admitting that if you merely mention Al Qaeda or Osama bin Laden in an email, the NSA has the right to read your email without a warrant."

How can the NSA know if an American citizen has the word "Bin Laden" in their email? Does this mean the NSA scans the message body content of every single email sent by all Americans?

Is this what Senator Dianne Spystein meant when she claimed seizing emails isn't considered spying, as long as nobody reads them? That it's not considered unconstitutional search and seizure if automated computers are the ones doing it?
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Erik, 20 Jun 2014 @ 9:19pm

Targeted Words
Someone should write a program, app, plugin, or something that randomly inserts the "target" words and phrases in emails or attachments. Then sit back and watch the FUD as 100% of the US population is under suspicion for being a terrorist.
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Peter (profile), 21 Jun 2014 @ 5:38am

Yet again...
I just want to remind you that Mike Masnick is doing an absolutely fabulous job, and I encourage him to keep uncovering the truth -- about the vote a couple of days ago, and anything else. He's doing an extraordinary good job, and deserves any credit we can give him.
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GEMont (profile), 21 Jun 2014 @ 11:33am

Connect the Dots
"...can't just sweep up every email of every person who obliquely references "a target."

Actually, using the 3 degrees of separation concept, they can scoop up anything from anyone that obliquely references anyone who obliquely references anyone that obliquely references anyone who references a target.

And methinks you will also find - eventually - that anyone that is, for any reason, once included in this string of references, remains a legal target thereafter, forever.

So if Bob's mom mentions Bob's boss in an email to Bob, and Bob's boss mentioned his brother Harry in an email, who once worked for an Oil company in Saudi Arabia for a year, but who once mentioned Al Quaida in an email to his wife, then Bob's mom, Bob, Bob's boss, Bob's boss's brother Harry, and Harry's wife, are all permanently on the NSA's "People We Can Spy On Legally Forever" list.

There is also a chance that friends and family of these people who exchange emails and the entire staff and administration of the Oil Company and their email exchanging friends and family might be included in the string as well.

So how long do you think it will take such a system to include every American citizen? A year? Two? How many years has it been in operation now?
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Anonymous Bill, 23 Jun 2014 @ 4:51pm

Re: Targeted Words
Emacs has had NSA-bait commands available for a long time, as do several email programs. It doesn't actually matter, because the NSA considers To:, From:, and Subject: to be suspicious keywords.
(More seriously, NSA and FBI often tell us they want no-warrant-needed pen-register access to the To: and From: fields in email headers, using arguments that might apply to the SMTP MAIL From and RCPT TO commands but not to the email DATA section itself.)
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Anonymous Bill, 23 Jun 2014 @ 4:54pm

Re: Connect the Dots
I've called and emailed my Congress member. She's called Obama. He's called Angela Merkel, who's a person of interest for NSA surveillance.

That's three hops - write your Congressmember today, and you too can be subject to NSA warrantless surveillance!
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Bill Stewart, 23 Jun 2014 @ 4:59pm

"Collect" is a magic weasel word
The bill tried to limit the NSA's searches to "collections" of data about foreign communications, banning funds unless those searches are also authorized by warrants. But the NSA has made clear, in their testimony to Congress, that they consider "collect" to be a magic weasel word that means exactly what they intend it to mean, in the current sentence, at this point in time, and that doesn't have to correspond to what it means in other sentences or other points in time. So even before this bill was watered down, it wasn't going to limit the NSA's activities much.

Maybe the Senate can fix some of the damage, but I'm not optimistic.
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GEMont (profile), 1 Jul 2014 @ 4:17pm

Re: Re: Connect the Dots
By Gum!
Nail meet hammer.

Seen another way, almost ANY posting to ANY social network must certainly touch upon someone who is already under suspicion for something, thus including the poster in the string permanently, even for posting something like;

"I got a new puppy - a Shitzu"

After all, it could be Terrorist Code for;

"I have chosen a new target. Use Chinese Link for details."
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GEMont (profile), 1 Jul 2014 @ 4:28pm

Re: "Collect" is a magic weasel word
Its highly unlikely that this total surveillance attitude can be stopped by any process whatsoever.

This is the wet-dream of control freaks - to know exactly what everyone else is doing all the time and to be able to blackmail anyone who threatens their well being, or refuses to obey their demands.

Even if the NSA, FBI, CIA and Homeland Security were dissolved and disbanded tomorrow, the desire of those at the top of the food chain to know every move and thought of their resource population, would force them to create a new secret agency immediately - if they have not already done so - in order to carry on the process undisturbed.

I assume they initiated the creation of a new top secret agency to control the data being brought in currently by the above named entities and to carry on the job if those agencies are compromised - within weeks of the first Snowden expose.

This is not a cat that can be put back into the bag.

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