SEC, DOJ And Law Enforcement Want To Rewrite Email Privacy Law Update... In Their Favor

from the updated-for-government-needs-and-wants dept

The SEC (Securities and Exchange Commission) has been fighting much-needed updates to the ECPA (Electronic Communications Privacy Act) for a few years now, claiming that treating old email like new email would somehow strip it of its power to investigate and punish wrongdoing. For no discernible reason, legislators decided to treat electronic mail like physical mail, designating unopened emails over six months old "abandoned" and accessible by almost anyone using nothing more than a subpoena.

Moving the law towards logic would insert a warrant requirement for old emails, bringing them under the same protection as emails less than 180 days old. But it's not just the SEC that's resistant to changing the law. It's also local law enforcement and the DOJ itself, both of which have greater powers than the SEC when it comes to accessing electronic communications.

The most recent hearing featured testimony from the SEC, DOJ and, for no discernible reason, the Tennessee Bureau of Investigation. The consensus is that the law should be updated, but not that part of it (SEC) and only if it makes it easier for law enforcement to obtain more stuff without warrants (DOJ, TBI).

The SEC's argument against the introduction of a warrant requirement is that it would prevent the agency from obtaining other user data from ISPs using only a subpoena, glossing over the fact that it likes having warrantless access to tons of email.

When we conduct an investigation, we generally will seek emails and other electronic communications from the key actors via an administrative subpoena – a statutorily authorized mechanism for gathering documents and other evidence in our investigations. In certain instances, the person whose emails are sought will respond to our request. But in other instances, the subpoena recipient may have erased emails, tendered only some emails, asserted damaged hardware, or refused to respond – unsurprisingly, individuals who violate the law are often reluctant to produce to the government evidence of their own misconduct. In still other instances, email account holders cannot be subpoenaed because they are beyond our jurisdiction.

It is at this point in an investigation that we may in some instances, when other mechanisms for obtaining the evidence are unlikely to be successful, need to seek information from the internet service provider (ISP). H.R. 699 would require government entities to procure a criminal warrant when they seek the content of emails and other electronic communications from ISPs. Because the SEC and other civil law enforcement agencies cannot obtain criminal warrants, we would effectively not be able to gather evidence, including communications such as emails, directly from an ISP, regardless of the circumstances.

As is (sort of) admitted in the SEC's testimony, the current law provides more protection for physical documents than electronic ones. However, SEC Director Andrew Ceresney spins this as an argument against modifying the ECPA.

Some have asserted that providing civil law enforcement with an ability to obtain electronic communications from ISPs in limited circumstances would mean electronic documents enjoy less protection than paper documents. That is not accurate. Indeed, as currently drafted, H.R. 699 would create an unprecedented digital shelter – unavailable for paper materials – that would enable wrongdoers to conceal an entire category of evidence from the SEC and civil law enforcement.

The DOJ and Tennessee Bureau of Investigation also express alarm at the proposed rollback of subpoena powers, but they use the kidnapping of children, rather than financial misconduct, as their starting points.

While the DOJ admits the 180-day cutoff period makes very little sense, it suggests no fixes along those lines. Instead, it suggests warrant exceptions for Pen Register statutes (information about communications) be aligned with those in the Wiretap Act (the communications themselves) so DOJ agencies can acquire the data along with the communications when operating a wiretap. It makes a certain amount of sense, but it's actually just the DOJ asking for the less-stringent set of exceptions (tied to the Wiretap Act, believe it or not) to be applied across the board.

It also asks for legislators to better define what can be accessed with certain orders to eliminate "inconsistency" in judge behavior.

The Fifth Circuit has interpreted this provision to require a court to issue a 2703(d) order when the government makes the “specific and articulable facts” showing specified by § 2703(d). See In re Application of the United States, 724 F.3d 600 (5th Cir. 2013). However, the Third Circuit has held that because the statute says that a § 2703(d) order “may” be issued if the government makes the necessary showing, judges may choose not to sign an application even if it provides the statutory showing. See In re Application of the United States, 620 F.3d 304 (3d Cir. 2010). The Third Circuit’s approach makes the issuance of § 2703(d) orders unpredictable and potentially inconsistent; some judges may impose additional requirements, while others may not.

(Hey, judicial inconsistency isn't much fun for defendants, either.)

Once again, the DOJ is looking for a less-stringent standard to be applied, rather than truly looking to bring this law into the 21st century. Its plea for "technologically-neutral" handling of communications data is similarly focused on applying a lower standard to the acquisition of communications, no matter their source.

The Tennessee Bureau of Investigation, on the other hand, argues that an updated ECPA would put too much power in the hands of ISPs and other entities responsive to law enforcement warrants and subpoenas.

H.R. 699 goes far beyond the commonly stated goal of modernizing ECPA by requiring a search warrant for all stored content. In fact, it creates protections for a wider range of stored electronic evidence that could pose a greater hindrance to law enforcement than protections afforded evidence stored on a computer inside a house or office. Searches in response to ECPA process are performed by service providers, not by law enforcement officers, and H.R. 699 extends the notice provisions previously necessary only with lesser levels of process like subpoenas along with the probable cause standard. The end result is that law enforcement has to get a search warrant to access more evidence, and must bear the added burden of notice requirements that were previously limited to lesser process, without the benefit of controlling the execution of the warrant.

Apparently, any increase in difficulty -- no matter its relation to the Fourth Amendment -- is unacceptable.

Because H.R. 699 in its current form imposes burdens that will make our job harder without offering any relief in other areas, we urge the committee not to pass H.R. 699 without amending the bill to reflect greater sensitivity to the concerns of the state and local law enforcement community. When we have to get a warrant, it should mean something; right now, H.R. 699 turns the compulsory process of a search warrant into a subpoena with a higher proof requirement.

The Bureau's Richard Littlehale further lays out his argument for lowered requirements by claiming entities being served with legal paperwork have been less than helpful in the past.

In many instances, we are unable to utilize evidence that would be of enormous value in protecting the public because the technologies used to carry and store that information are not accessible to us, no matter what legal process we obtain. That may be because of technological problems, but just as frequently it is because of non-technical barriers to access. The companies that retain these records are often unable or unwilling to respond to law enforcement’s lawful demands in a timely manner, and there are few consequences for an incomplete or inaccurate response. The primary emergency disclosure provision in the section of ECPA that we use to obtain stored content is voluntary for the providers, not mandatory, and even where emergency access is granted to law enforcement, in some instances, there is insufficient service provider compliance staff to process legitimate emergency requests quickly.

Littlehale's argument appears to be a paraphrasing of Pat Paulsen's satirical campaign slogan: if we (law enforcement) have to up our standards, up theirs! He apparently feels ISPs, etc. don't face enough legal penalties for not immediately handing over everything law enforcement demands, whether they have the capability to do so or not. Littlehale wants warrant service under a modified ECPA to more closely resemble warrant service at a residence: where cops announce their presence after they've entered and destroyed everything they touch in search of evidence. He can't handle the fact that private entities maintain control of digital communications sought and that his agency (and others) must approach them (rather than drive up on their lawns and shoot grenades through their windows) with the proper paperwork and wait until responsive information is gathered and turned over.

Much like the DOJ and the SEC, Littlehale doesn't want an updated law. He wants a law rewritten to treat digital communications like physical communications, bringing the barrier to access and the expectation of privacy down to the lowest level possible. That's what is really being discussed here. Not a rewrite of an outdated law to reflect the reality of modern communications, but ways to make an already law enforcement-friendly law even friendlier.

Filed Under: 4th amendment, doj, ecpa, reform, sec, warrants

DOJ Helping Law Enforcement Agencies Fight Back Against Asset Forfeiture Reform

from the the-public's-best-interest-still-at-bottom-of-all-lists dept

At the beginning of this year, Attorney General Eric Holder attempted to close an exploitable loophole in asset forfeiture laws. State and local law enforcement agencies often sought federal "adoption" of seizures in order to route around statutes that dumped assets into general funds or otherwise limited them from directly profiting from these seizures. By partnering with federal agencies, local law enforcement often saw bigger payouts than with strictly local forfeitures.

The loophole closure still had its own loopholes (seizures for "public safety," various criminal acts), but it did make a small attempt to straighten out some really perverted incentives. But deep down inside, it appears the DOJ isn't really behind true forfeiture reform. In fact, it seems to be urging local law enforcement to fight these efforts by pointing out just how much money these agencies will "lose" if they can't buddy up with Uncle Sam.

A cache of documents uncovered by the Institute for Justice today demonstrate that federal law enforcement officials in the Departments of Justice (DOJ) and Treasury are collaborating with local law enforcement organizations in California to undermine efforts to reform the state’s civil forfeiture laws. The California District Attorneys Association is circulating a set of emails from officials with the DOJ and Treasury indicating that the federal government would disqualify the state from receiving funds from the federal Equitable Sharing Program if it passes the pending reforms. The documents also reveal that the DOJ has already disqualified New Mexico from participating in the program, following passage of a sweeping civil forfeiture reform bill this spring.

The DOJ's insertion into the legislative process begins with talking points delivered in emails that stress the amount of money agencies will be "losing" if they're no longer allowed to federalize seizures. The documents show members of the Treasury Department affirming that California's reform will "force" the DOJ to cut state law enforcement agencies out of the loop -- supposedly because the Mother Ship can't secure convictions fast enough.

Citing “resources, desire, or technical capability,” Treasury Executive Office for Asset Forfeiture Legal Counsel Melissa Nasrah wrote in an email to Santa Barbara Senior Deputy District Attorney Lee Carter, “I highly doubt our federal agencies can figure out whether a conviction occurred in any timely manner,” and “it seems the legislation, in effect, takes decision-making authority away from Treasury. Accordingly, I think I would still advise our policy officials here that it would be prudent to not share with CA agencies should this law be passed.”

Sure enough, the "warnings" from the feds are echoed in a letter from the California District Attorneys' Association in opposition of the bill. The association expresses its abject dismay at the fact that law enforcement agencies might actually have to secure convictions to hold onto seized assets. According to the CDAA, asset forfeiture without accompanying convictions is a must because indictments and jail time alone aren't punitive enough.

The current version of the bill would essentially deny every law enforcement agency in California direct receipt of any forfeited assets. California's asset forfeiture law will be changed for the worse, and it will cripple the ability of law enforcement to forfeit assets from drug dealers when arrest and incarceration is an incomplete strategy for combatting drug trafficking.

The Treasury Department, for its part, argues that a conviction requirement would prevent the DOJ from a) being fair and b) performing the studious oversight that has prevented asset forfeiture from devolving into cops going shopping for stuff they want.

A transfer to a state-controlled fund would not be a permissible use of funds, especially when that central fund would redistribute money to all law enforcement agencies in the state, regardless of their eligibility or participation in our program.

All participating agencies must report their expenditures to DOJ at the end of their fiscal year. As you are aware, there are many law enforcement items that cannot be purchased with equitably shared funds, and some are fully prohibited both by policy and executive order. lf a participating agency turns its federally shared funds over to the State of California under those proposed amendments, DOJ can no longer provide appropriate oversight over final expenditures.

The CDAA goes on to complain that the proposed reforms would reverse the one-way screwing it has become accustomed to.

The vast majority of civil narcotic asset forfeiture cases in California resolve by default or settlement. Providing attorney fees to the party that "substantially prevails" could result in attorney fees being available when the People return 50 percent or more of the seizure in a settlement. This would be an unprecedented one-way benefit for a civil litigant, and a huge additional cost to prosecuting forfeitures. Further, in appropriate cases and under existing civil law, attorney fees are already available to claimants in a forfeiture action.

Note the use of "the People" to portray this as robbing the public of the benefits of seized funds when, in actuality, it's usually just the theft of funds from (lowercase) people.

It's easy to see why California law enforcement is panicking. There's almost $84 million at stake, if the CDAA's stats are accurate. These agencies want to control how they get these funds, what they have to do to hold onto them and how they're disbursed. Anything short of the status quo is just a win for drug dealers. This is hardly unexpected behavior. Nothing makes government agencies more defensive than furtive movements in the direction of their wallets.

That the DOJ has decided to pile on -- despite its nominal reform efforts -- is also less than shocking. After all, it takes a cut from every "adopted" investigation -- all the while enabling local entities to bypass statutory safeguards meant to keep the abuse of civil forfeiture to a minimum.

Filed Under: asset forfeiture, doj, eric holder, law enforcement, legalized theft, reform

FISA Court Tackles Section 215 Mess, Public Advocates In New Opinion

from the bulk-collection-paused? dept

The FISA Court has released its opinion on the interim Section 215 collection activities. The government argued that it was owed six months of uninterrupted, plain vanilla Patriot Act collections, as provided for in the USA Freedom Act. While the new law significantly alters the NSA's collection methods, it was given 180 days to transition to an off-site "collection," housed by telcos and responsive only to targeted searches.

But a few points were still unclear. First, Section 215 did actually expire on May 31st. Only the passage of the USA Freedom Act prevented it from going completely dead, and even so, it's no longer a bulk collection. Second, the Second Circuit Court found the collection was illegal under current law. This finding has very limited jurisdiction, of course, and the appeals court has no control over the FISA Court. The FISC can consider this opinion (and it has), but the question of the legality of this bulk collection is still mostly unsettled.

Third, the USA Freedom Act provides for the appointment of five people to argue on behalf of the public and potential surveillance targets. The new order tackles this new stipulation… sort of. First of all, however, the FISA Court has the unenviable task of sorting out the numerous conflicts caused by the sunset of Section 215, and its almost immediate sunrise in mutated form, thanks to the provisions of the passed-at-the-last-minute USA Freedom Act.

Julian Sanchez at Just Security points out the FISC had a couple of options when interpreting the new law, the old law and various other legal questions.

Since reading USA Freedom as amending the post-sunset law would result in legal gibberish, in other words, the FISC reads the law as doing what Congress very obviously intended for it to do, not what a hyper-literal evil genie might read it as doing.

The opinion appears to authorize old-school Section 215 bulk collecting during the 180-day winddown. [As pointed out by Julian Sanchez, the opinion "pointedly" does not authorize this. What it does is provide for the collection as amended by the USA Freedom Act, which obviously isn't the same thing, and isn't how the government has interpreted the 180-day transition period.) What's more interesting is the order's discussion of the brand new advocates that will finally bring an adversarial presence to the court. Sanchez notes the FISC could have simply ignored this stipulation until after the 6-month temporary reauthorization was completed and USA Freedom's version of Section 215 kicked in. But it didn't. However, that doesn't exactly mean it's welcoming the additional arguments and scrutiny. In this opinion, the FISC rubberstamps itself.

First, it understatedly notes that things are all kinds of screwed up at the moment.

Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well-established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.

Having issued its mildly derogatory assessment of Schrödinger's Bulk Collection, the FISA Court moves on to declare that, despite the multiple legal entanglements and legislative changes, this particular request is so straightforward -- and its precedent sufficiently clear -- there's no need to ask a second opinion.

Under the circumstances, it does not appear that the assistance of an amicus curiae would materially assist the court in making that decision. The court therefore finds that it is "not appropriate" to appoint an amicus curiae in this matter, within the meaning of 50 U.S.C. §1803(i)(2)(A).

This would, of course, be the statute cited by the Second Circuit Court as not allowing for the bulk collection of records, but whatever. In this particular case, the FISA Court's assessment is likely correct. If it's expected to see this tangled mess the way legislators intended, rather than as a "hyper-literal evil genie," the government is free to collect bulk records for the next six months while transitioning to the new process. Anyone arguing on behalf of the public will just have to wait until the USA Freedom version goes into effect and attack any deficiencies then. As for the appeals court decision, it has very little bearing now that the Section 215 program is on the way to retirement. The passage of USA Freedom now provides for the legal authority needed to continue this collection, which will no longer be in bulk and much more likely to adhere to the Section 1803 provisions.

Sanchez points out an interesting omission -- if it is an omission -- that possibly indicates the government won't even be performing its long-running bulk collection for the next six months. As he notes, no additional order authorizing normal bulk collection has been issued. In the wake of the Snowden leaks, the FISA Court has been pretty punctual with the public release of authorization orders, but there's no order attached to this opinion.

Because the FISC has declined to take the 180-day escape hatch, and because they cannot plausibly invoke the “no brainer” exception, the court does intend to appoint an amicus to brief the question of whether bulk collection can continue during the six month transition window. Since it will take time to find an appropriate party, and there’s no indication of any further bulk order being issued as yet, it seems reasonable to infer that, at present, the bulk program remains suspended. Alternatively, the FISC may have issued a temporary order authorizing resumption of bulk collection for some quite short period, without an opinion, while it looks for an amicus and takes time to consider their arguments.   If they had in fact already issued an opinion and order reauthorizing bulk collection, after all, it would be quite strange to have issued a memorandum opinion dealing only with this narrow question, rather than bundling them all together.

If so, this would be the first time since 2009 that the bulk collection has been suspended for any length of time, which is significant on its own.

Filed Under: amicus, bulk collection, doj, fisa, fisa court, fisc, patriot act, public advocate, reform, usa freedom

Open Letter To Key EU Copyright Working Group Calls For 'Balanced Representation Of Views'

from the good-luck-with-that dept

Back in January, we wrote about the report from the Pirate Party MEP Julia Reda, which made a number of bold but sensible proposals for reforming the EU's 2001 copyright directive. Not surprisingly, the lobbyists have been hard at work, and no less than 556 amendments to the report have been proposed (pdf), many of them clearly aiming to undermine some of Reda's ideas completely -- for example, those seeking to rein in DRM. One of the important players in the revision process is the European Parliament's Working Group on Intellectual Property Rights and Copyright Reform, which describes itself as follows:

The aim of the Working Group is to reflect on IPR issues and especially to pave the way to the upcoming reform of the EU legal framework on copyright. The Working Group will meet once a month and will exchange views with the widest range of stakeholders and civil society. The result of the work would serve as a starting point for future legislative review in the field and would enable Members to present concrete and innovative proposals to the European Commission.

Of course, one of the problems with reform in this area is that rarely do lawmakers engage with "the widest range of stakeholders and civil society": instead, they tend to listen to what the copyright industries tell them, and act accordingly. Hoping to head off that risk this time, a group of industry and civil society groups has sent an open letter to the coordinator of the Working Group (pdf), Jean-Marie Cavada, calling for a more balanced representation of views. Here's the key section (found via Netzpolitik):

We would like to express our concern with regard to the lack of diversity of expert speakers and the corresponding representation of views. In the digital age, copyright impacts a great variety of stakeholders. Apart from established copyright industries and authors, it is of great relevance to citizens, consumers, cultural heritage institutions, libraries, researchers, universities and the Internet industries. It is also of fundamental importance to creators who are taking advantage of new, digital opportunities and who are not represented by traditional copyright industries.

In that context, we call on the WG to make sure that these views are appropriately represented in the upcoming meetings. Making copyright rules future-proof requires a holistic approach. This can only be achieved if the full spectrum of stakeholders is adequately represented and given a chance to speak in front of Members of Parliament who will ultimately be tasked with passing new copyright legislation.

That pre-emptive call is a shrewd move: it makes the Working Group's coordinator aware that people are watching carefully who exactly he calls to give their views. Whether it succeeds in producing a more balanced representation is another matter.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: copyright, copyright reform, eu, industry, public, reform

James Clapper's Report On Progress Towards President's Surveillance Reforms Mainly Explores Executive Branch Loopholes

from the not-so-much-what-it-can-do,-but-what-it-can-get-away-with dept

James Clapper, the Director of National Intelligence, has issued an interim report on the intelligence community's minimal progress towards minimal compliance with the minimal reforms ordered by the administration last year in response to the Snowden leaks. Presidential Policy Directive 28 (PPD-28) was issued in January and Jame Clapper's office is proud to announce that it's still in the process of thinking about complying with the stuff the President asked them to do so many months ago.

As we work to meet the January 2015 deadline, PPD-28 called on the Director of National Intelligence to prepare an interim report on the status of our efforts and to evaluate, in coordination with the Department of Justice and the rest of the Intelligence Community, additional retention and dissemination safeguards.

The DNI's interim report is now being made available to the public in line with our pledge to share as much information about sensitive intelligence activities as is possible, consistent with our national security.

We're blown away with all the openness, Mr. Clapper. This must be the same transparency that has seen Clapper's office dump documents without referencing the federal lawsuits prompting this "largesse." Or the same transparency that tossed out the above-mentioned presidential directive -- one month after it went public -- with a self-congratulatory Tumblr post. (Yes. That is the world we live in now. The Director of National Intelligence speaks to the public through Tumblr, a venue more known for its porn gifs and faint odor of Yahoo! desperation. Thanks, Obama Snowden.)

At this point, the interim effort is mostly talk. There's little that indicates any movement has been made towards the goals of the directive. In fact, any detectable movement is limited to shrugs of deference towards the Executive Branch, as the EFF points out.

Here are a few choice sections from our initial read of today's report:

"To that end, PPD-28 states that personal information of non-U.S. persons shall be retained and disseminated only if the retention and dissemination 'of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333.'"

We are disheartened to see ODNI pinning its privacy protections to Executive Order 12333. EO 12333 is a poorly-understood Reagan-era authority; one former State Department chief said:

"…Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court…"

Repeatedly, the interim report addresses the new ideals… and then immediately appends, "unless EO 12333 says we can do otherwise." Admittedly, this flaw traces back to the administration's directive, which contains much of the "unless EO 12333" language referred to in the report.

Somewhat surprisingly, the ODNI's report calls out the overly-broad language contained in EO 12333.

Executive Order 12333 defines this term as "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists." This definition ensures that the Intelligence Community is able to retain and disseminate information necessary for the United States to advance its national security and foreign policy interests. Nonetheless, the definition's reference to "information relating to . . . activities of. . . foreign persons,' if read literally, could permit an element to permanently retain or to disseminate any information about any activity of any foreign person. Intelligence Community elements should permanently retain or disseminate such personal information only if the personal information relates to an authorized intelligence requirement, is reasonably believed to be evidence of a crime, or meets one of the other standards for retention or dissemination identified in section 2.3 of Executive Order 12333 for U.S. person information, and not solely because of the person's non-U.S. person status.

The EFF asks if the NSA has ever used this reading to its own advantage. Certainly no answer is expected, but the agency has long been a fan of fluid terms and malleable definitions. Which brings us to the ultimate show of executive branch deference, albeit one that implies the administration will help the agency do the things it really wants to, Presidential Policy Directive or no.

It is important that elements have the ability to deviate from their procedures when national security requires doing so, but only with approval at a senior level within the Intelligence Community element and notice to the DNI and the Attorney General.

Even the most modest of reforms still apparently needs ample breathing room and the ODNI carves out plenty with this single paragraph -- all without even bothering to address the mass surveillance programs that prompted the reforms in the first place.

Filed Under: james clapper, nsa, odni, reform, surveillance

The World Has Changed Since The First Snowden Revelation, But It's Only A Small Start

from the one-year-later dept

As noted earlier, today is the one year anniversary of the very first Snowden revelation, which revealed the FISA Court order to Verizon, ordering it to hand over every phone record it had. As such many sites, like us, are participating in Reset the Net (in case you missed it, we're now 100% SSL). However, many are also looking at what has happened in the last year -- and it's quite a lot, while at the same time, not nearly enough. Trevor Timm has a good look at four ways that Snowden has changed the world, including much more transparency into what's going on, more encryption, more awareness in the courts and a massive shift in public opinion. Furthermore, it's important that we're having this public debate. And yes, we've actually seen some real attempts at reform in Congress -- though so far those have mostly fallen flat.

Still, it's amazing how far we've already come because of Snowden. Much of what's happened in the last year never would have happened without him deciding to blow the whistle. And yet, it's not nearly far enough. The growing awareness is great, but real change needs to happen, and that's a process that's going to take a very long time.

Filed Under: ed snowden, nsa, one year, privacy, reform, security, surveillance

Google Asks Users To Demand Congress Pass Real Surveillance Reform

from the more-companies-need-to-speak-out dept

As we've mentioned, the USA Freedom Act -- which had been the "good" bill to reform some of the NSA's domestic spying activities -- was completely watered down right before it passed the House. Basically the entire civil liberties community pulled their support for the bill at the last minute once they saw the changes that the White House demanded (even after the bill had already been watered down). What got a little less attention was that many in the tech industry had also dropped their support for the bill, despite earlier supporting it.

With the fight to fix the bill now moving to the Senate, Google has apparently decided to ramp up its activism on getting a much better bill out there. Google's main Twitter account announced that it wants real reform and linked people to a "take action" page that trashes the bill that passed the House and asks people to sign on to support real reform in the Senate:

It's been a year since Edward Snowden shocked the world with his deeply troubling revelations about the extent of U.S. government surveillance.

The House of Representatives just passed a bill called the USA FREEDOM Act. That bill was designed to prevent the bulk collection of Internet data (e.g., who you email and who emails you) by the U.S. Government. This kind of surveillance — where data may be collected for no specific intelligence purpose and without effective judicial oversight — runs counter to our democratic principles.

Unfortunately, as the bill made its way through Congress, the text was watered down so badly that it will not prevent bulk Internet data collection. For example, as the bill stands today it could still permit the collection of email records from everyone who uses a particular email service. As the legislation moves over to the Senate, it is critical that this loophole be closed. We need real surveillance reform urgently.

If the Senate is actually going to resist the White House's demands for a watered down bill, we're going to need a lot more partnerships like this: companies and individuals together speaking out about how bulk surveillance by the NSA is simply unacceptable. The NSA has already managed to poison the well for tech companies overseas by basically telling the world that their data is simply not secure. These companies and their customers and users need to let the government know that this needs to stop now. Hoping, quietly, that these issues will go away isn't going to do the trick. Hopefully more companies will speak up as well.

Filed Under: activism, congress, reform, surveillance, usa freedom act
Companies: google

Competing NSA Reform Bills Suddenly Lurch Forward In Congress

from the well-this-might-get-interesting dept

In a bit of a surprise move, the House Judiciary Committee, led by Rep. Bob Goodlatte, caught people off guard this morning by announcing that there would be a markup of the USA FREEDOM Act on Wednesday, complete with a Manager's Amendment from bill author Rep. Jim Sensenbrenner. If you don't recall, the USA FREEDOM Act was the best bet for real NSA reforms. It was far from perfect, but did actually do a lot of good things without adding a bunch of bad things. The amended version scales that back a bit. It's not as good, but it's still pretty good. Harley Geiger, over at CDT has a good overview of the Manager's Amendment, and how it actually improves the bill in certain areas, while Marcy Wheeler highlights both the good and bad of the amendment.

Of course, within just a few minutes of the Judiciary Committee announcing its plans to move forward with the USA FREEDOM Act, the House Intelligence Committee announced that it would hold its own damn markup on the competing "NSA reform" bill from Reps. Mike Rogers and Dutch Ruppersberger, which is designed to look like a shot at NSA reform, but which really would make it easier for the NSA to collect info on people. That bill, called the FISA Transparency and Modernization Act (almost none of that is true), is basically the NSA's prime choice for pretending to be reform.

This sets up a bit of an upcoming fight -- assuming that both markups lead to bills getting voted out of committee -- to see which bill House Speaker John Boehner is willing to bring to the floor. Basically, Boehner gets to make the final decision on NSA reform at this stage. Will he bring the real reform bill or the fake one?

Filed Under: bob goodlatte, congress, dutch ruppersberger, fisa, house intelligence committee, house judiciary committee, jim sensenbrenner, mike rogers, nsa, reform, surveillance, transparency, usa freedom act

New NSA Bill From House Intelligence Committee Aims To Head Off Future Challenges To Legality Of National Security Letters

from the assuring-no-standing-but-cutting-challenges-off-at-the-knee dept

When House Intelligence Committee ranking member Dutch Ruppersberger suggested replacing the NSA's bulk collections with something a bit more targeted, it was a little surprising. After all, this is the same man who has worked hand-in-hand with Mike Rogers to subject the NSA to as little oversight as possible over the last several years.

What he proposed sounded suspiciously like an old fashioned Pen Register, the sort of targeted call tracking that can easily be performed by any law enforcement/security agent. Julian Sanchez wondered why a new law was needed when one already on the books would suffice, provided it was scaled back from FISC judge Colleen Kollar-Kotelly's expansive interpretation.

Well, apparently the reason a new law was needed was to expand the NSA's powers, rather than contract them, contrary to the assertions of those pushing this legislation. As Mike noted on Tuesday, the bill aims to limit some aspects of the NSA's collections while simultaneously lowering the standards governing other collections. The bill dials back on "probable cause" and relies on "reasonable suspicion" only, while also eliminating the government's need to seek a warrant or court order to run a phone number for hits.

As Mike also noted, the full house bill hadn't been made public yet, so it was likely there were other tricks up the Rogers-Ruppersberger sleeve. Sure enough, Marcy Wheeler, who has done an amazing job digging up dirt in nearly every NSA-related document over the last several months, has indeed uncovered another small gift to the surveillance state in the "fake fix" bill.

Here's the wording:

If the judge determines that such petition consists of claims, defenses, or other legal contentions that are not warranted by existing law or consists of a frivolous argument for extending, modifying, or reversing existing law or for establishing new law, the judge shall immediately deny such petition and affirm the directive or any part of the directive that is the subject of the such petition and order the recipient to comply with the directive or any part of it.

And here's what that wording appears to be targeting:

I can’t help believing much of this bill was written with cases like Lavabit and the presumed Credo NSL challenges in mind, as it uses language disdainful of legal challenges.

This makes it that much more unlikely that challenging an order from the NSA will result in anything other than compliance by the entity on the receiving end. This strips away a little more of the facade the government portrays -- that those receiving national security letters and the like actually have any choice in the matter.

When the government demanded the SSL keys so it could access the data and communications of Ed Snowden's former email provider, Lavabit fought back. First, it closed down rather than be "complicit in crimes against the American people." Then the government dragged the provider to court to get the information it sought and Lavabit's lawyers fought back.

This is the way the system is supposed to work. Orders can be challenged, even if the chance of overturning them is microscopic. If this part of the bill goes through unaltered, judges will be granted the permission to simply shut down any petition they think seeks to challenge any aspect of the laws pertaining to the NSA's surveillance programs. It's the NSA's heckler's veto, granted by the House Intelligence Committee and delivered by judges who will be forbidden from respecting any challenges to the government's interpretation of these laws.

Filed Under: bulk collection, dutch ruppersberger, mike rogers, nsa, reform, surveillance

Congress Warns DOJ That If It Doesn't Support NSA Reform Plan, It Won't Renew Key Patriot Act Provision

from the get-your-act-together dept

While the USA Freedom Act isn't perfect, it is one bill in Congress that has a lot of support and will fix many problems with the current NSA overreach. Much more needs to be done, but the USA Freedom Act is a good starting point. And yet, the Obama administration and his Justice Department have yet to take a public stand on the bill, and that seems to be annoying plenty of folks in Congress. At the recent Judiciary Committee hearings, Rep. Jim Sensenbrenner, the original author of the Patriot Act and Section 215, made it abundantly clear that the DOJ/NSA's interpretation of his bill was simply incorrect and that they were abusing the system. As the sponsor of the USA Freedom Act to fix this misinterpretation, he pointed out that if the DOJ doesn't agree to support it, there's a good chance that Congress simply won't renew the provisions in Section 215 at all. Section 215, of course, is the part that has been misinterpreted by the DOJ, the FISA court, the NSA and the FBI to pretend it authorizes the collection of every phone record. In short, the message from Congress is: work with us to reform things, or we'll pull the authority altogether. Of course, some of us think that pulling the authority altogether might be a better long term solution.

And it's not just Sensenbrenner making those claims. Many others -- across the political spectrum -- made it clear during the hearing that the NSA's actions with regards to Section 215 were unacceptable and Congress is going to make them change things. Yes, nothing has happened yet, and Congressional bluster doesn't always lead to results, but it's becoming increasingly clear that the NSA (and the President's) desire to keep collecting everyone's metadata is not convincing anyone.

Filed Under: doj, house judiciary committee, jim sensenbrenner, nsa, reform, section 215, surveillance, usa freedom act