House Overwhelmingly Votes To Slam The Backdoor Shut On The NSA!

from the big-win dept

A week ago, we told you that there were plans for a very important amendment to slam the backdoor shut on the NSA's use of backdoor searches, as well as mandates for backdoors in technology. On Wednesday, we asked you to call your Representatives to support the Amendment. The story got almost no other press. And yet, last night, the amendment passed by an overwhelming majority, 293 to 123. And it was also an overwhelmingly bipartisan vote: Republicans voted for it 135 to 94, and Democrats voted for it 158 to 29. Go take a look at the vote results in the link above -- and if your Representative voted Aye, please go thank them for standing up to protect your privacy and 4th Amendment rights from the NSA. You can use the Sunlight Foundation's new Congressional email system. Separately, a huge shoutout goes to Reps. Zoe Lofgren, Thomas Massie and James Sensenbrenner for putting together this amendment in the first place. As we noted earlier this week, Sensenbrenner's support on the bill is perhaps the most striking, as it's a clear rebuke to House leadership for watering down his own USA Freedom Act.

As we stated, this amendment only fixes two specific problems. It stops the very questionable use of "backdoor searches" of information collected under the Section 702 program. This is the very questionable setup by which the NSA spies on Americans while insisting that they don't actually spy on Americans. It also blocks the NSA from mandating that any technology companies create backdoors in their software or hardware to enable wiretapping (such as the NSA forcing Skype to no longer be encrypted end-to-end).

In many ways, this is more important as a symbolic gesture than for the specifics -- but it should have a much wider impact as well. This is the first time that Congress has overwhelmingly voted to defund an NSA program. Last year's Amash Amendment came very, very close to defunding a different program (the Section 215 bulk records collection program), but by passing by an overwhelming margin, this vote is a pretty big sign that the House (on both sides of the aisle) is not happy with how the NSA has been spying on Americans. As mentioned above, it's also a big slap in the face to the White House and certain members of the House leadership who conspired to water down the USA Freedom Act a few weeks ago, stripping it of a very similar provision to block backdoor searches.

While this particular Amendment is far from a sure thing (it still needs to make it through a Senate equivalent and then the White House), it is quite important as a sign that the House really is fed up with the NSA's surveillance and how the USA Freedom Act process went. It should serve as a warning to the Senate, which is now considering its own version of the USA Freedom Act, that passing a similarly watered down version is simply not acceptable.

This is one step forward in a big process, but it is a big milestone. For the first time since the Snowden revelations began, the House overwhelmingly voted to defund some NSA practices. Once again, if you're an American, I urge you to look over the list of Aye votes, and send a thank you to those Representatives who took a stand for your privacy and against the NSA last night.

Filed Under: backdoor searches, backdoors, defense appropriations, fisa amendments act, jim sensenbrenner, nsa, section 702, surveillance, thomas massie, zoe lofgren

Does Congress Believe In Protecting Your Privacy? Key Amendment Next Week Is The Test

from the let's-find-out dept

Last month, we wrote about how the USA Freedom Act was completely changed at the last minute in secret. This was even after the bill had been marked up and approved unanimously by two committees (Judiciary and Intelligence). Then the White House (read: NSA) came in and basically changed the bill around entirely, such that some say it's even worse than before. Earlier this week, it even came out that the very author of the USA Freedom Act, Rep. Jim Sensenbrenner, was frozen out of the final negotiations on his own bill, such that the final product looked nothing like the original. While some in Congress tried to warn their colleagues that the bill they were voting on had been changed in secret, many Representatives didn't fully comprehend what happened, and the bill passed.

While the official fight over the bill has now moved to the Senate (and early indications there are not good at all), Representatives in the House have another big chance next week with the giant Defense Appropriations bill. From what we've been hearing, a bipartisan group of Representatives will be introducing an amendment to put in two key measures that will block the NSA from two major abuses involving two different kinds of "backdoors." If Congress is actually serious about protecting the privacy of Americans and making sure the NSA cannot do domestic surveillance, this is the opportunity to prove it.

The first part of the amendment would put back in a bit of the USA Freedom Act that got stripped out at the last minute, stopping what has been referred to as "backdoor searches" of American's data that was collected under Section 702 of the FISA Amendments Act. This is content, not metadata, and the NSA has very wide leverage to search through it once it's been collected. While the NSA is not supposed to search on American's content, a sneaky "rule change" in 2011 gave the NSA the authority to run searches on Americans' content collected via this program, and it includes a lot of content. This is a very big deal. The NSA and its defenders have been using sneaky language to pretend they don't do searches on US persons' content, but that was proved untrue thanks to these backdoor searches. The expected amendment would say that the NSA can't do those searches without a warrant.

In short: here's a chance for Representatives in the House to tell their constituents that they support their privacy and have reminded the NSA how the 4th Amendment works. Will they take that opportunity, or will they continue to allow the NSA to spy on American's emails, files, documents, pictures, etc?

The second part of the amendment is expected to also block a different kind of backdoor: blocking the US government from mandating that any technology include backdoors for law enforcement (beyond what's currently required under the wiretapping CALEA statute). In other words, no more having the NSA go around and tell RSA to use compromised encryption. And no way for DOJ/NSA to force internet service providers to install backdoors into their technology. This is important for a variety of reasons, but most importantly, because any such backdoor will eventually (sometimes quickly) be discovered and exploited by those with malicious intent. In other words, this is another chance for Congress to show that they protect the privacy of Americans, by blocking one of the biggest threats to our cybersecurity: the NSA purposely weakening our technology and services.

This amendment won't fix all of the problems with the NSA (or even most of the problems with the NSA), but it will correct two very big problems, and it's a chance for the House to push back on the secret deal that was negotiated by the NSA at the last minute, which radically change the USA Freedom Act from a bill that reined in the NSA, to one that actually may have opened up more bad practices. If Congress really wants to show they believe in protecting the public, here's a chance. We'll have more details as this process moves forward, including looking at who is willing to step up and protect your privacy, and who's trying to weaken your privacy.

Filed Under: 4th amendment, backdoor searches, congress, defense appropriations, fisa amendments act, nsa, section 702, technology mandates, usa freedom act

DOJ Says Americans Have No 4th Amendment Protections At All When They Communicate With Foreigners

from the expectation-of-privacy? dept

We've already questioned if it's really true that the 4th Amendment doesn't apply to foreigners (the Amendment refers to "people" not "citizens"). But in some new filings by the DOJ, the US government appears to take its "no 4th Amendment protections for foreigners" to absurd new levels. It says, quite clearly, that because foreigners have no 4th Amendment protections it means that any Americans lose their 4th Amendment protections when communicating with foreigners. They're using a very twisted understanding of the (already troubling) third party doctrine to do this. As you may recall, after lying to the Supreme Court, the Justice Department said that it would start informing defendants if warrantless collection of information under Section 702 of the FISA Amendments Act (FAA) was used in the investigation against them.

Last October, it finally started alerting some defendants, leading courts to halt proceedings and re-evaluate. As two of those cases have moved forward, the DOJ is trying to defend those cases, and one way it's doing so is to flat out say that Americans have no 4th Amendment protections when talking to foreigners.

The Supreme Court has long held that when one person voluntarily discloses information to another, the first person loses any cognizable interest under the Fourth Amendment in what the second person does with the information. . . . For Fourth Amendment purposes, the same principle applies whether the recipient intentionally makes the information public or stores it in a place subject to a government search. Thus, once a non-U.S. person located outside the United States receives information, the sender loses any cognizable Fourth Amendment rights with respect to that information. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the information freely accessible to others, or that the U.S. government (or a foreign government) will obtain the information.

This argument is questionable on so many levels. First, it's already relying on the questionable third party doctrine, but it seems to go much further, by then arguing that merely providing information to a foreign person means that it's okay for the US government to snoop on it without a warrant. The DOJ further defends this by saying, effectively, that foreign governments might snoop on it as well, so that makes it okay:

Moreover, any expectation of privacy of defendant in his electronic communications with a non-U.S. person overseas is also diminished by the prospect that his foreign correspondent could be a target for surveillance by foreign governments or private entities.

With this, it appears the DOJ is trying to attack the idea of the reasonable expectation of privacy that has been the basis of the 4th Amendment in the US. They're effectively arguing that since foreign governments might look at the info too, you should have no expectation of privacy in any communications with foreigners and thus you've waived all 4th Amendment protections in that content.

That's crazy.

In fact, they flat out admit that they're stripping Americans of any 4th Amendment rights with this claim, noting that communicating with foreigners means you've likely "eliminated" your 4th Amendment protections.

The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.

The implications of this argument, if upheld by the court is staggering. It would seem to fly in the face of basic logic and historical 4th Amendment law, all discussing how it's the expectation of privacy that matters. And I'm fairly certain that most of us who regularly communicate with folks outside the US have quite a reasonable expectation of privacy in such communications (though, to be fair, I've been much more actively using encryption when talking to people outside the US lately).

As Jameel Jaffer of the ACLU points out, this eviscerates basic Constitutional protections for many Americans:

The government's argument is not simply that the NSA has broad authority to monitor Americans' international communications. The US government is arguing that the NSA's authority is unlimited in this respect. If the government is right, nothing in the Constitution bars the NSA from monitoring a phone call between a journalist in New York City and his source in London. For that matter, nothing bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas.

In the government's view, there is no need to ask whether the 2008 law violates Americans' privacy rights, because in this context Americans have no rights to be violated.

I'm curious if anyone wants to defend this as a reasonable interpretation of the 4th Amendment, because it seems quite clearly a complete bastardization of what the 4th Amendment says and how courts have interpreted it over the years.

Filed Under: 4th amendment, communications, doj, fisa, fisa amendments act, foreign persons, section 702

DOJ Still Trying To Hide The Fact It Flat Out Lied To The Supreme Court About Domestic Surveillance

from the because-terrorism dept

Last year, we noted that US Solicitor General Donald Verrilli had lied to the Supreme Court in Amnesty International's lawsuit about warrantless wiretapping. If you don't recall, Amnesty International had sued about the program, but the US government successfully got the case tossed by arguing that Amnesty International had no proof that their communications were tapped, and thus they had no standing to sue. The Supreme Court appeared troubled by the fact that no one could sue unless they somehow knew for a fact they were being spied upon, but eventually sided with the government, in large part because of one of Verrilli's false statements.

Specifically, he claimed that others would have standing to sue, because if the government used the information obtained via such a warrantless wiretap (under Section 702 of the FISA Amendments Act) it would have to inform those who were being charged with a crime because of that information. It was only much later, when Dianne Feinstein was bragging about how effective Section 702 was in stopping "terrorists" (during a Senate debate on renewing the FISA Amendments Act) that it became clear that Verrilli had made false claims to the Supreme Court. Because in her bragging, she mentioned some specific cases that she said made use of Section 702 -- and the lawyers for the defendants in those cases quickly realized that they were never informed about that.

To his credit, Verrilli himself not only claimed that he was misled by national security lawyers, but ordered that the practice be changed, and some defendants have since been informed.

Of course, to some, that has been too little too late. Back in November, we noted that Senators Mark Udall, Ron Wyden and Martin Heinrich pointed out a second false statement that Verrilli made to the Supreme Court in the same case. Specifically, the DOJ and Verrilli told the court that the NSA would have to have "targeted the communications" of someone that Amnesty was talking to, and that was "highly speculative" for Amnesty to assume that was true. But, as the Senators pointed out, it was later declassified that the 702 program was not just about collecting the communications to or from "targeted" individuals, but also any communications about them.

While this may seem like a small deal, it's actually a very big deal, because it could likely mean that the communications of many Americans were collected without any sort of warrant. It turns out that in December, the DOJ responded, but that response has just been released. In it, the DOJ insists that lying to the Supreme Court concerning the fact that Section 702 allowed for the collection of purely domestic communications without a warrant if they were merely "about" a target (rather than to or from that target) was really no big deal at all and not relevant to the case.

Your letter raises questions regarding the now-declassified "about" collections that have resulted in the acquisition of some wholly domestic communications as a result of Section 702 surveillance and whether the government's representations in Clapper v. Amnesty International were incomplete or misleading for failing to refer to such collections. The government acted appropriately by not addressing the "about" collections in Clapper v. Amnesty International because the existence of this type of collection was classified throughout the period during which the case was briefed, argued, and decided, and because those collections did not bear upon on the legal issues in the case. At all times, the Department and the Office of the Solicitor General have a duty of candor in our representations to the Supreme Court, and it is a duty we take extremely seriously. The Department and the Office of the Solicitor General also have a duty to respect the classified status of information, and that is also a duty we take extremely seriously. In litigation, we must take pains to avoid discussing matters that are unnecessary to the resolution of matters before the Court when those matters might disclose classified information or undermine national security, while ensuring that the Court has all of the information relevant to deciding the issues before it.

The Department's briefing and argument in Clapper v. Amnesty International fully respected both of these duties. The Department described the surveillance authorized by Section 702 (and the provision's targeting and minimization requirements) accurately, and we made no statements that could be reasonably understood as denying the existence of "about" collection. Moreover, the possibility of then-classified, incidental collection of domestic communications, while of undoubted importance and interest to the public, was not material to the legal issue before the Supreme Court.

Wyden and Udall have now responded to the DOJ's letter and, not surprisingly, they're still very troubled by the DOJ providing false and misleading information to the Supreme Court in a key case challenging the NSA's surveillance under the FISA Amendments Act. First, the Senators note that, contrary to the DOJ's claims, both the briefings before the Supreme Court and the oral arguments included statements which actively misled the Court into believing Section 702 only applied to communications to or from a target -- and that clearly was not true.

More importantly, they note that, contrary to the DOJ's claims, it's pretty clear that this very much mattered as a part of the Supreme Court's reasoning:

The Justice Department's reply also states that the "about" collection "did not bear upon the legal issues in this case." But in fact these misleading statements about the limits of section 702 surveillance appear to have informed the Supreme Court's analysis. In writing for the majority, Justice Alito echoed your statements to the Court by stating that the "respondents' theory necessarily rests on their assertion that the Government will target other individuals -- namely their foreign contacts." This statement, like your statements, appears to foreclose the possibility of "about" colleciton.

We recognize that the inclusion of this misleading statement in the Court's analysis does not prove that the Court would have ruled differently if it had been given a fuller set of facts. Indeed, it is entirely possible that the Court would have ruled in exactly the same way. But while the Justice Department may claim that the Amnesty plaintiffs' arguments would have been "equally speculative" if they had referenced the "about" collection, that should be a determination for the courts, and not the Justice Department, to make.

While this seems like a technical issue, it's a huge deal. Effectively, the DOJ and Solicitor General Verrilli -- whether on purpose or not -- misled the Supreme Court on two key aspects of the 702 collection program, and it appears that the Supreme Court relied, in part, on both of those misleading statements in coming to its decision. The fact that the DOJ still appears rather unconcerned about how its misrepresentations may have impacted the courts is immensely troubling, not just because it may have resulted in an illegal and unconstitutional surveillance program continuing for many extra years, but also because it highlights the mendacity of the DOJ in trying to win cases at all costs, rather than actually trying to make sure the law is applied appropriately.

As the new letter from Udall and Wyden concludes:

As we have noted elsewhere, we are concerned that the executive branch's decade-long reliance on a secret body of surveillance law has given rise to a culture of misinformation, and led senior officials to repeatedly make misleading statements to the public, Congress and the courts about domestic surveillance. The way to end this culture of misinformation and restore the public trust is to acknowledge and correct inaccurate statements when they are made, and not seek to ignore or justify them.

It's unfortunate that it appears that so few in Congress are up in arms over this. The executive branch purposely misleading the judicial branch over constitutional issues is a very big deal, and most in Congress don't seem to want to have anything to do with it.

Filed Under: doj, donald verrilli, faa, fisa amendments act, mark udall, ron wyden, section 702, supreme court, surveillance, targets
Companies: amnesty international

Detailed Study Suggests NSA Rarely Useful In Stopping Terrorism

from the but-fear! dept

While we've already seen multiple detailed analyses of why the NSA's bulk collection of email data under Section 215 of the PATRIOT Act hasn't been particularly helpful in stopping any real terrorist attacks on the US, there are still other NSA programs as well. The folks over at the New America Foundation have put out a detailed new report looking at whether any of the NSA's programs have been effective. The report finds, exactly as everyone else has, that the Section 215 effort was only helpful in finding one guy who sent some money to Somalia. However, more importantly, it also looks at the other big NSA program, the one that comes under Section 702 of the FISA Amendments Act which includes (among other things) the PRISM program that got a lot of attention. Once again, the evidence of 702's usefulness is fairly minimal. The report finds that it was used in less than 5% of investigations of people charged with terrorism since 9/11.

The full report looks at all 225 individuals who were either part of Al Qaeda or an associated group and charged with terrorism since 9/11. In looking over every plot they were involved in, you see that much more traditional means of catching terrorists were involved in almost every case. There are community/family tips, informants, other non-NSA intelligence, routine law enforcement, self-disclosed by publicizing his own extremist activity, "suspicious activity" reports... and of course, plots that weren't actually prevented. There is, to be fair, a large number of plots where the discovery is from "unclear" means -- and it's entirely possible that some of those were discovered under the Section 702 programs. However, at the very least, this calls into question just how valuable either of these key NSA efforts really are.

Filed Under: 9/11, fisa amendments act, nsa, patriot act, section 215, section 702, terrorism
Companies: new america foundation

US Gov't Appears To Have Misled The Supreme Court About How The NSA Spied On Americans

from the whoa dept

We've written a few times now about the fact that US Solicitor General Donald Verrilli pretty clearly made false statements to the Supreme Court in a key case concerning NSA warrantless wiretapping. The case, Clapper v. Amnesty International, mainly focused on who had standing to challenge warrantless wiretaps performed by the NSA. The government argued that since there was no evidence that Amnesty International was spied on, it had no standing. The false statement involved the claim that the government would have to inform defendants in cases where warrantless wiretaps were used that that's how the info was gathered. Except the government didn't do that.

It turns out that might not have been the only misrepresentation from Verrilli -- and this next one may be even bigger, involving misleading the Supreme Court on a loophole that allowed the NSA to spy on tens of thousands of Americans.

As was noted earlier this year, upon realizing what happened, Verrilli was apparently furious, and the DOJ has now changed its policy to match with what Verrilli said -- they now will notify defendants, but it's clear that they never did so before.

But Senators Mark Udall, Ron Wyden and Martin Heinrich have sent Verrilli a letter urging him to "set the record straight" with the Supreme Court... but not just on that issue of disclosing. Rather they highlight somewhere else they think he did not paint the correct picture:

In Clapper v. Amnesty, the majority opinion characterizes as “highly speculative” the plaintiffs’ fear that “the Government will decide to target the communications of non-U.S. persons with whom they communicate,” and states that the “respondents’ theory necessarily rests on their assertion that the Government will target other individuals – namely their foreign contacts.” These and other statements in the opinion indicate the Court’s view that the only way the plaintiffs’ communications could be intercepted under the FAA is if those communications are to or from a foreign intelligence target.

Yet with the disclosure and declassification in recent months of relevant documents regarding Section 702, the role of ‘about’ collection under the FAA is now public, although not widely understood. In addition to authorizing the collection of communications to and from foreign, overseas targets, the FISA Amendments Act also has been secretly interpreted to authorize the collection of communications that are merely about a targeted overseas foreigner.

This form of collection allows the government – through the “upstream” collection under Section 702 – to collect any communication whose content includes an identifier, such as an email address, associated with an overseas foreigner who may be a foreign intelligence target. But according to the FISA Court’s October 2011 opinion, the ‘about’ collection likely results in the acquisition of “tens of thousands” of wholly domestic communications every year. In other words, tens of thousands of emails between law-abiding Americans are likely being collected – even though these Americans are not actually communicating directly with a foreign intelligence or terrorism target. As FAA collection was intended to target persons “reasonably believed to be located outside the United States,” and targeting procedures were intended to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of acquisition to be located in the United States,” the FISA Court in its October 2011 opinion called this expanded FAA collection a circumvention of the “spirit” of the law and a “cause of concern for the Court.”

Just to hammer this point home, they're saying that despite everyone, including the Supreme Court, clearly reading the law to say that Section 702 of the FAA is supposed to be limited to surveillance on foreign targets, it actually also allows surveillance on communications about foreign targets -- and that likely includes tons of communications of Americans. And these communications were believed not to be available under this program, including by the Supreme Court.

The Senators ask Verrilli if he clearly informed the Supreme Court of this at any point, and if not, suggest that he correct the record.

We believe that a formal notification to the Supreme Court of the government’s misrepresentations in the case — both relating to its notice policy and relating to its practice of ‘about’ collection under Section 702 of the FISA Amendments Act — would be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court.

This seems rather important -- and a point that not many reporters have covered (which also might explain why the Senators are raising it, and noting that the revelation "is not widely understood.") This is a way of alerting people to the simple fact that the NSA has interpreted Section 702 to mean it can collect any communication deemed to be "about" a target, even if the communication is not from or to that target.

Filed Under: donald verrilli, faa, fisa, fisa amendments act, james clapper, mark udall, martin heinrich, nsa, ron wyden, section 702, solicitor general, supreme court, target
Companies: amnesty international

Google's Latest Transparency Report Mocks The Gag Order FISC Puts On Them Over NSA Requests

from the not-so-subtle dept

Google has released the latest version of its transparency report concerning government requests. While they focus on how government requests for information have doubled over the past three years, they also have a not-at-all-subtle jab at the FISA Court and the DOJ for continuing to block their efforts to reveal how many FISA Amendments Act Section 702 requests (the so-called PRISM requests) they get from the government, and how many people it impacts. As you hopefully already know, Google (along with other tech companies) is in the process of suing the government over this restriction on its free speech. You can see that demonstrated pretty clearly in the bottom righthand quadrant of the graphic they released. Just call it the "redacted" infographic. Google's legal director on this issue, Richard Salgado, explains:

We want to go even further. We believe it’s your right to know what kinds of requests and how many each government is making of us and other companies. However, the U.S. Department of Justice contends that U.S. law does not allow us to share information about some national security requests that we might receive. Specifically, the U.S. government argues that we cannot share information about the requests we receive (if any) under the Foreign Intelligence Surveillance Act. But you deserve to know.

Earlier this year, we brought a federal case to assert that we do indeed have the right to shine more light on the FISA process. In addition, we recently wrote a letter of support (PDF) for two pieces of legislation currently proposed in the U.S. Congress. And we’re asking governments around the world to uphold international legal agreements that respect the laws of different countries and guarantee standards for due process are met.

The longer the government keeps this form of censorship up, the worse it looks. What could possibly be "revealed" by letting Google and others say how many requests they've received under that act? The pervasive secrecy from the NSA may be a cultural trait, but there is no basis for it here.

Filed Under: first amendment, fisa amendments act, gag order, nsa, section 702, surveillance, transparency, transparency report
Companies: google

DOJ Refuses To Let Tech Companies See Legal Arguments It's Making Against Them

from the isn't-that-convenient dept

The ongoing legal fight, in which a bunch of US tech and internet companies -- namely Google, Facebook, Microsoft, Yahoo and LinkedIn -- are suing the US government, claiming a First Amendment right to publish some details on the number of requests they get from the NSA under Section 702 of the FISA Amendments Act, as well as the number of users impacted by those requests, is getting ever weirder. The government had filed its response back at the end of September. And, you might notice, large portions of it are totally redacted. For example, here is page 13 of the document (though, numbered page 8):
At least they didn't redact the page number Of course, stuff gets filed under seal all the time, and it's not particularly uncommon to see redacted passages in legal documents -- especially (obviously) when it has to do with matters of national security. But, here's what's different. Normally the opposing parties in the case are allowed to see the details of what's redacted. Here, the DOJ is simply refusing to let the tech companies see its own argument. In response, the companies have filed a pretty direct and somewhat angry motion, asking the FISA court to either let them see the arguments, or to strike the redacted portions from the DOJ's motion. Basically, the DOJ is saying that it can make legal arguments that only the court can see, but which the tech companies suing it cannot see. That goes against every basic concept of due process.

The government has submitted a response and supporting declaration for ex parte, in camera review. It has given the providers only a heavily redacted version of its submissions, and it has rejected all requests for greater access.

Unless the government reconsiders its refusal to accommodate the providers' legitimate need to understand the basis for the government's response, the providers respectfully request that this Court strike the redacted portions of the government's brief and supporting declaration. The redacted version of the government's submissions does not comply with Foreign Intelligence Surveillance Court Rule 7(j) because it does not "clearly articulate the government's legal arguments," as the rule requires. If the government's interpretation of the rule were correct, the rule would violate both the First Amendment and the Due Process Clause. To avoid that result, the Court should construe the rule to require fuller disclosure to the providers.

Allowing the government to file an ex parte brief in this case will cripple the providers' ability to reply to the government's arguments and is likely to result in a disposition of the providers' First Amendment claims based on information that the providers will never see. The providers do not dispute that in some cases it may be appropriate for this Court to consider ex parte filings. In this case, however, such a course is neither justified nor constitutional. The providers already know the core information that the government seeks to protect in this litigation--the number of FISC orders or FAA directives to which they have been subject, if any. At issue here is only the secondary question whether the providers may be told the reason why the government seeks to keep that information a secret. The government has not argued that sharing those reasons with the providers or their counsel would endanger national security. Accordingly, unless the government allows the providers' counsel to access its response, the Court should strike the redacted portions of the response.

The whole thing is really quite incredible. Our government is so focused on the secrecy of its secret laws and secret demands that it won't even tell the companies fighting the secrecy the secret reasons it's telling the court it has to keep stuff secret? How is that possibly consistent with basic due process under the law?

Filed Under: due process, faa, fisa, fisa amendments act, fisa court, fisc, free speech, gag order, nsa, redactions, section 702
Companies: facebook, google, linkedin, microsoft, yahoo

Feds Wait Until Late Friday To Release Details Of Criminal Case That Used NSA Surveillance, Which They'd Kept Secret

from the friday-night:-where-news-goes-to-die dept

Back in July, the NY Times made it pretty clear that United States Solicitor General Donald Verrilli almost certainly lied to the Supreme Court, concerning how evidence obtained via NSA surveillance techniques would end up in court. As you may recall, the lawsuit in question involved the ACLU, with the government arguing that the ACLU had no standing. The Supreme Court asked a basic question about whether or not anyone could possibly have standing then to challenge the law -- and Verrilli insisted (and the justices relied on) the claim that if the feds used data collected under these questionable surveillance statutes, that the defense team would be told about this, and they could challenge the constitutionality of the collection. Except... no defendant had ever been told any such thing. And then someone noticed that Senator Dianne Feinstein, in defending the NSA surveillance, had insisted that it was key in a bunch of cases -- meaning one of them was lying. This, apparently, got Verrilli quite upset at the various national security lawyers who had looked over his defense and who apparently chose not to tell him that what he was saying about the government telling defendants stuff wasn't, in fact, true. As was reported a few weeks ago, Verrilli then led a fierce debate within the administration, and said that a policy change was necessary. And, to kick it off, they were searching for a single case in which they would reveal such info was used.

Of course, this allowed the feds to cherry pick their case... and the date and time to release the "news." So, of course they chose Friday night, which is when the government always tries to release bad news. So we're taking that news and discussing it the following Monday, because this is big and it deserves serious attention. Late Friday, the government admitted that it had used information gleaned via programs under the FISA Amendments Act in the criminal case against Jamshid Muhtorov, who was charged in January 2012 with "providing material support to the Islamic Jihad Union, a designated terrorist organization based in Uzbekistan." Much of the original complaint against Muhtorov involves discussions about intercepted calls and emails, though it's unclear how many (if any) of those were done under the FAA or other law enforcement authorities.

The new notice in the case doesn't reveal very much at all, other than that the government intends to "offer into evidence or otherwise use or disclose in proceedings... information obtained or derived from acquisition of foreign intelligence information conducted pursuant to the" FAA. Basically, this case now is very likely to become the key case in testing the constitutionality of at least some aspects of the FISA Amendments Act surveillance efforts (which include the "upstream" tapping of the internet backbone via telcos, though it's not clear if that was used in this particular case).

In other words, this case just got a lot more interesting -- though it's clear that the feds tried very carefully to pick a case where the facts work strongly in their favor. I would imagine, however, that various public interest and civil liberties groups are gearing up to see how they might help out in the case.

Filed Under: dianne feinstein, donald verrilli, fisa amendments act, jamshid muhtorov, nsa, nsa surveillance, standing

Dianne Feinstein Deploys All The 'Intelligence' Cliches In Op-Ed Defending Metadata Program

from the needs-new-talking-points dept

Dianne Feinstein is reaching out to the American public (at least those that read USA Today) in hopes of gathering support for the NSA's metadata collection. (Maybe she feels she guilty after inadvertently damaging its chances at staying legal...) If you've heard anything from Feinstein over the past few months, you've heard these arguments. In fact, if you've heard anything from any of the NSA's defenders, including Gen. Alexander himself, you've heard these arguments.

Her editorial basically checks every box on the list of Section 215isms.

[X] LEGAL

The NSA call-records program is legal…

[X] OVERSIGHT

… and subject to extensive congressional and judicial oversight.

These words are meant to be comforting, showing that the NSA isn't doing anything illegal, especially since any oversight would certainly prohibit that, right? Except that the legality of the program depends on secret interpretations and a very loose reading of the Third Party Doctrine. As for the oversight? The FISA court has been (rightfully) referred to as a "rubber stamp," and the oversight is hampered by the underhanded tactics deployed by intelligence committee heads.

So, while the sentence may be technically true, the words being used don't mean what most Americans would assume them to mean.

[X] IT WORKS

Above all, the program has been effective in helping to prevent terrorist plots against the U.S. and our allies.

Once again, there's very little proof that the Section 215 program has had any effect. At one point, defenders were claiming over 50 plots had been prevented by this program. At the latest count, it's been pared down to two. And those two are still "maybes."

The most recent narrative push is that this program would have prevented the 9/11 attacks, because of a San Diego phone number being contacted by one of the hijackers. But this claim should be taken with a server full of salt because even with the program, the NSA is having trouble finding any needles scattered amongst all the hay. It does well connecting the dots after attacks have occurred, but Americans shouldn't have to sacrifice liberty for mop-up security.

[X] NOT SURVEILLANCE

The call-records program is not surveillance. It does not collect the content of any communication, nor do the records include names or locations.

Feinstein cites the Supreme Court's decision that business records aren't protected by the Fourth Amendment. What she glosses over is the fact that these "unprotected" records can paint a very vivid picture of telco customers, many of whom would be very surprised at how little is left up to the imagination by metadata.

[X] CONNECT THE DOTS

This program helps "connect the dots" — the main failure of our intelligence before 9/11.

And continues to be a failure more than a decade later! Feinstein quotes two intelligence leaders as claiming an untargeted metadata haul would have prevented the 9/11 attacks. Considering the fact that the NSA can only claim two "maybes" in its decade-plus of having access to these records, those claims seem to be completely faith-based.

Feinstein specifically mentions hijacker Khalid al-Mihdhar, who supposedly would have been discovered here in the US pre-9/11 had the agencies been able to collect vast amounts of metadata. Unfortunately, the truth is that the CIA had plenty of info on al-Mihdhar's movements in other countries as it had been tracking his movements for two years. But when it lost him in 2000, it did nothing proactive, like place him on watch list in case he returned to the US. Evidence exists that various call tracing programs built at the behest of the NSA and DEA were in place well before 2001, and none of those helped track down a person well known to the CIA.

[X] NEEDLES IN HAYSTACKS

The overwhelming majority of records are never reviewed before being destroyed, but it is necessary for the NSA to obtain "the haystack" of records in order to find the terrorist "needle."

One paragraph after "connecting the dots" (which the NSA can't seem to do proactively), Feinstein deploys the other data-harvesting cliche. The NSA isn't having much luck with its needle-finding technology either and recently, its haystacks have been bursting into flames. So, this is a non-starter.

[X] TIME IS OF THE ESSENCE, EVEN IF IT TAKES FOREVER

To be effective, the NSA must be able to conduct these queries quickly, without regard to which phone carrier a terrorist or conspirator uses. And the records must be available for a few years — longer than phone companies need them for billing purposes.

Let me get this straight: the NSA needs records right away but also wants to keep them indefinitely. The latter part plays to the agency's strength -- the deployment of hindsight-guided, dot-connection technology. Its catlike reflexes are generally underwhelming when it comes to preventative efforts, however.

[X] METADATA STOPS TERRORISM

Since its inception, this program has played a role in stopping roughly a dozen terror plots and identifying terrorism supporters in the U.S.

This number is also false, but it's one that's being used to salvage the upper end claim of "54." The "roughly a dozen" refers to thirteen of those 54 that have a "terrorism nexus" in the US. Feinstein has built a list of nearly 100 terrorism-related arrests, "some" of which have been "thwarted" by the Section 215 program. A perusal of the list shows that many of these were thwarted through old-fashioned sting operations, with a handful of these being plots that FBI agents orchestrated in their entirety. Section 215 is completely unnecessary if you're mainly interested in "foiling" your own plots.

So, with great vagueness, Feinstein makes these assertions and wholly expects USA Today readers to buy the narrative. The US needs a program that allows for untargeted data collection of American phone records just because sometime it might possibly prevent something. It hasn't yet -- not conclusively -- but there's always a chance it will, given the indefinite, unchallenged future Sen. Feinstein is attempting to ensure.

To its credit, USA Today has run its own editorial in response to Feinstein's article. The response demands that the program prove itself, something it has failed to do over the years. Its lack of proven worth almost saw it closed down previously and the renewed defense of the program in the wake of the Snowden leaks has been less than inspiring. USA Today also calls out Feinstein's wishful "could have prevented 9/11" defense, pointing out that it wasn't a lack of data that was the problem, but rather the failure of intelligence agencies to share the data they did have. The editorial closes out with this paragraph, which nods to Ben Franklin's famous quote.

Choosing between privacy rights and security from terrorism is difficult. But before Americans are forced to make that choice, the government ought to demonstrate that this intrusive program has extraordinary value. So far, the administration hasn't even come close.

The NSA's defenders are making minimal concessions to transparency, but it's become obvious that the agency does its "best" work in complete darkness. Having its methods dragged out into the sunlight demonstrates just how invasive they are -- and how little they accomplish.

Filed Under: dianne feinstein, faa, fisa amendments act, nsa, nsa surveillance, section 702