Congress Plays See-No-Evil, Pretend-There's-No-Evil, Let-The-Evil-Continue With NSA Domestic Spying

from the wtf dept

We're still completely perplexed at how anyone in Congress could recognize that the NSA has refused to tell Congress how often it's violated the privacy of Americans without a warrant under the FISA Amendments Act (FAA) -- and then still vote to renew it. What kind of "oversight" is that? As Julian Sanchez recently wrote, it's no oversight at all. As he notes, the law requires the NSA to "prevent" the spying on folks when both parties in communication are in the US -- but here, the NSA is admitting that it has no mechanism to actually do that. Either (a) it's lying or (b) it's admitting that it cannot do what the law requires.

If we care about the spirit as well as the letter of that constraint being respected, it ought to be a little disturbing that the NSA has admitted it doesn’t have any systematic mechanism for identifying communications with U.S. endpoints. Similar considerations apply to the “minimization procedures” which are supposed to limit the retention and dissemination of information about U.S. persons: How meaningfully can these be applied if there’s no systematic effort to detect when a U.S. person is party to a communication?

Normally, this should be the point at which Congress steps in and says "no more" to the NSA. Instead, it shuns those who even ask the basic questions -- and as in the case of Rep. Dan Lungren, pretends that as long as no one proves to them that the NSA is abusing its power, there's simply no reason to demand evidence. That's not oversight. That's willful ignorance.

And... given that they're choosing to ignore their own oversight obligations over the NSA's spying on Americans, it should come as no surprise that the House Intelligence Committee unanimously voted to extend the FAA for five more years. Why not? It's not like Congress is actually going to make sure that the NSA is playing by the rules. The NSA apparently just needs to say that it would be too much work to do what the law requires and Congress says, "here, have a gift of five more years to spy on Americans against the specifics of the law." And, once again, as Sanchez points out, there are plenty of ways that the NSA could at least estimate how many Americans they're spying on.

But why would it do that? As Sanchez also points out, the NSA seems to redact anything even remotely embarrassing from its reports... including data on how often it failed to follow the law:

More generally, these reports contain a good deal of redacted statistical information that there is simply no plausible excuse for keeping secret. A table of “statistical data relating to compliance incidents,” for example, is included—but entirely blacked out. Are we to believe that the national security of the United States would be imperiled if the public knew the number of times the NSA had difficulty following the law? The reviewers conclude that the “number of compliance incidents remains small, particularly when compared with the total amount of activity”—but is there any legitimate reason for barring the public from knowing what counts as a “small” number, or just how massive the “total amount of activity” truly is?

How do folks in Congress who vote for this kind of thing defend such actions? They can't say that it's to protect Americans, when they refuse to even seek to get the data on whether or not Americans are being illegally spied upon.

Filed Under: congress, fisa, fisa amendments act, nsa, oversight, privacy, spying, warrants

Federal Agent Manufactured Case Against Guy... For The Purpose Of Spending More Time With His Mistress

from the damn dept

We've covered, repeatedly, the misdeeds of various law enforcement officials lately, but this latest story might be the most egregiously ridiculous case. Apparently EPA Agent Keith Phillips pushed heavily for a case against a guy named Hubert Vidrine, who was eventually charged with "knowingly storing hazardous waste materials without a permit." It later turned out that there were some serious problems with the case against Vidrine. First, he was storing oil, which was not considered hazardous waste, and second, there was no evidence that the storage was done "knowingly." Eventually, the feds realized the case was so weak that it dumped it. Vidrine fought back in court, claiming malicious prosecution, and the court hasn't just sided with him, but awarded him $1.7 million dollars for the malicious prosecution, detailing that Phillips provided false testimony and then "permeated the entire investigation with omissions, half-truths, overstatements, inflammatory language, misstatements, patent falsehoods, and tortured readings of regulations."

But where it gets insane is the reason behind all of this. It didn't even have anything to do with Vidrine at all. Apparently, Agent Phillips used the case as a way to spend more time with his mistress, who was also working on the case. Seriously:

One of the more distressing allegations made at trial, involved allegations of Agent Phillips’ sexual, extra-marital affair (and its subsequent “cover up”) with Agent Barnhill. The evidence strongly indicated Agent Phillips deliberately used his investigation and prosecution of Hubert Vidrine to foster, further, facilitate and cloak his extra-marital affair with Agent Barnhill, and perhaps, to exert improper influence over the manner in which she investigated and reported upon this case. Agent Barnhill candidly testified that she and Agent Phillips began a physical, sexual relationship while assigned to this matter, which lasted from approximately 1996 until January or February 2001. Agent Barnhill testified she and Agent Phillips were only physically intimate when working together on the Vidrine case — in other words, they did not meet to pursue their sexual relations on occasions when they were not working the case together. Thus, the case granted the opportunity for those rendez-vous, as well as providing justification for Agent Phillips wife.

During the investigation and prosecution, Agent Barnhill, who was single, lived in South Louisiana; Agent Phillips, who was married, lived in Dallas, Texas with his wife. Prior to and at trial, plaintiffs’ counsel consistently argued Agent Phillips used the Vidrine investigation as a cover, excuse and opportunity to facilitate his illicit affair with Agent Barnhill and to hide the affair from his wife. Plaintiffs consistently argued Keith Phillips manufactured a case, both in law and fact, against Hubert Vidrine, and carefully fed the AUSA and his supervisors only the information which would further that end and perpetuate the case, all to promote access to Agent Barnhill and perpetuate and conceal their illicit affair. Regrettably, the Court agrees with plaintiffs: this inappropriate and unprofessional behavior likely was, at least in part (if not in whole) a motivation for Agent Phillips’ continued pursuit of Hubert Vidrine, without probable cause, and certainly with a complete and total reckless disregard of Hubert Vidrine’s rights.

For all of this, Phillips was charged separately, leading to him recently pleading guilty to perjury and obstruction of justice. Obviously, this is an extreme case, and in no way representative. But the point that it brings up is that law enforcement has tremendous power, and if they choose to go after someone maliciously (or indirectly salaciously), they can make someone's life a living hell on their own whim. This is why we're so often concerned about making sure there's transparency and oversight -- and that those accused of things are able to effectively defend themselves.

Filed Under: epa, government, investigations, oversight

How Certain Judges Let The Feds Hide Questionable Spying Activity

from the unfortunate dept

With the recent unveilling of sealed orders by the feds collecting info from various service providers on the activities of various Wikileaks volunteers, you might wonder how such things get sealed... and how often that happens. It appears quite frequently, but the details (of course) are secret. Julia Angwin at the Wall Street Journal profiles one magistrate judge who has been pushing for others to limit their use of seals, but it sounds like not many are following.

“We diminish our legitimacy when we do things under a blanket of secrecy,” Judge Smith said in an interview. “The only way people can get confidence in what we’re doing is if they can get access to what we are doing and know why we are doing it.”

Judge Smith analyzed the 4,234 electronic surveillance orders issued in his Houston courthouse between 1995 and 2007 and found that 91.8% of them remain sealed today.

Judge Smith says he now sets time limits for the seals on orders that he signs. If prosecutors want to renew the seal, they must request an extension. “It’s more work,” Judge Smith says, “but I think it’s necessary work.”

He said he is worried that “people who aren’t indicted – regular law abiding citizens like you or me,” will never know if their records were obtained in an investigation, he says, “because these sealing orders live on indefinitely.”

This is a huge problem for our supposedly "transparent" government. When it can effectively conduct investigations and never have to admit to them or get any adversarial review over whether or not the investigation itself was legal, you have a system prone to massive abuse. There are certainly times and cases where such seals could make sense. But the idea that so many cases are effectively permanently sealed, it gives the government the ability to spy on people with impunity. You just need to find a magistrate judge willing to accept the government's version of what's happening... and that seems to happen frequently enough.

The full article has even more disturbing details like the fact that a recent survey found that 39% of sealed cases are never even put into the court's system for tracking cases, which would at least provide some info to the public to help analyze how often this kind of thing happens. This kind of secrecy is not how a government is supposed to function. If such investigations need to happen under seal they should always include some sort of expiration date on the seal. Otherwise, the feds know that as long as they can convince a judge (without the other side there to argue), they're effectively home free, and no one will scrutinize the investigations.

Filed Under: government, oversight, sealed court documents

NYTimes Sues The Federal Government For Refusing To Reveal Its Secret Interpretation Of The PATRIOT Act

from the secret-laws-and-secret-interpretations dept

We've been covering for a while now how Senators Ron Wyden and Mark Udall have been very concerned over the secret interpretation the feds have of one piece of the PATRIOT Act. They've been trying to pressure the government into publicly explaining how they interpret the law, because they believe that it directly contrasts how most of the public (and many elected officials) believe the feds are interpreting the law. While the two Senators continue to put pressure on the feds and to hint at the feds' interpretation, just the fact that the government won't even explain its own interpretation of the law seems ridiculous.

Given all of this, reporter Charlie Savage of the NY Times filed a Freedom of Information Act request to find out the federal government's interpretation of its own law... and had it refused. According to the federal government, its own interpretation of the law is classified. What sort of democracy are we living in when the government can refuse to even say how it's interpreting its own law? That's not democracy at all.

Julian Sanchez points us to the news that Savage and the NY Times have now sued the federal government for not revealing its interpretation of the PATRIOT Act, pointing out that if parts of the interpretation contain classified material, the Justice Department should black that out and reveal the rest, but simply refusing to reveal the interpretation entirely is a violation of the Freedom of Information Act. You can bet that the feds will do everything they can to get out of this lawsuit, just as they did with the various lawsuits concerning warrantless wiretapping. Here's hoping the court systems don't let them. No matter what you think of this administration (or the last one) and how it's handling the threat of terrorism, I'm curious how anyone can make the argument that the US government should not reveal how it interprets the very laws under which it's required to operate.

Filed Under: charlie savage, doj, extension, freedom of information, mark udall, oversight, patriot act, ron wyden, secret interpretation, wiretaps

54-Year Old School Teacher Who Doesn't Know How To Download Movies First To Be Kicked Off The Internet In France

from the hadopi'd dept

We recently noted that, over in France, under the HADOPI three strikes regime, they had their first 10 people get their third strike, and each was being reviewed to see if they should lose their connection. Well, it looks like the first guy has lost his connection... and it's a 54-year old school teacher who insists he has no idea how to download unauthorized content. The story is a little unclear, but it sounds like he had open WiFi, and he didn't understand what the "first strike," was really about. When he got the "second strike" notice, he tried to figure out how to secure his WiFi, but it either took too long or he was unable to figure it out... and so along came the third strike. The guy is pretty upset about this, for a damn good reason. It's going to be ridiculously expensive to fight and it may get appealed up to European courts outside of France, which would entail significant travel expenses as well. This is why it's supposed to be innocent until proven guilty, right?

Filed Under: france, hadopi, oversight, review, three strikes
Companies: hadopi

FBI Agents Getting More Power To Spy On People With Less Oversight

from the no,-that-won't-be-abused-at-all dept

The FBI has quite a history of abusing its powers in spying on people. Over the past few years, revelations of massive abuses of the National Security Letter (NSL) process to get info on people without proper oversight, has showed how agents will quite frequently go beyond what is legal to obtain info on people. So it seems quite troubling to find out that the FBI is adapting its manual for agents, known as "The Domestic Investigations and Operations Guide," to let agents do electronic lookups on people without first justifying the reasons.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

We've seen over and over and over again, when people have access to giant databases of info (especially in the government) without clear tracking or oversight, that data gets abused. Allowing FBI agents to search willy nilly is a recipe for widespread abuse.

Filed Under: databases, fbi, oversight, spying

Senators Reveal That Feds Have Secretly Reinterpreted The PATRIOT Act

from the this-is-a-problem dept

We had mentioned, briefly, the amendment that Senators Ron Wyden and Mark Udall had tried to push for with relation to the renewal of controversial provisions of the PATRIOT Act, however didn't spend much time discussing it. The details are important -- even if we can't know what most of them are. Basically, what becomes clear is that both Senators -- who are on the Senate Intelligence Committee -- are aware of the fact that the feds have interpreted the PATRIOT Act provisions much more broadly than the wording suggests, but they've kept this interpretation secret. In other words, though the law says one thing, the federal government has announced internally that it's "interpreting it" an entirely different way, but it's kept that interpretation secret. The speculation is that these provisions are being massively abused for widespread warrantless wiretapping.

In an interview with Wired, Wyden makes the point clear:

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says."

He notes that he has no problem with keeping the techniques the feds use secret, but the interpretation should be public, and that's what their amendment is about.

And it's not just the public that's having the wool pulled over their eyes. Wyden and Udall are pointing out that the very members of Congress, who are voting to extend these provisions, do not know how the feds are interpreting them:

As members of the Senate Intelligence Committee we have been provided with the executive branch's classified interpretation of those provisions and can tell you that we believe there is a significant discrepancy between what most people - including many Members of Congress - think the Patriot Act allows the government to do and what government officials secretly believe the Patriot Act allows them to do.

Legal scholars, law professors, advocacy groups, and the Congressional Research Service have all written interpretations of the Patriot Act and Americans can read any of these interpretations and decide whether they support or agree with them. But by far the most important interpretation of what the law means is the official interpretation used by the U.S. government and this interpretation is - stunningly -classified.

What does this mean? It means that Congress and the public are prevented from having an informed, open debate on the Patriot Act because the official meaning of the law itself is secret. Most members of Congress have not even seen the secret legal interpretations that the executive branch is currently relying on and do not have any staff who are cleared to read them. Even if these members come down to the Intelligence Committee and read these interpretations themselves, they cannot openly debate them on the floor without violating classification rules.

In the understatement of the year, Wyden and Udall state "this is not acceptable." I think it goes beyond unacceptable. It's downright scary. That Congress is about to rubberstamp the extension of the law when they think it says one thing, while the feds pretend it says something entirely different, is a travesty.

Filed Under: extension, mark udall, oversight, patriot act, ron wyden, wiretaps

Congress Just Sold You Out: Leadership Plans To Extend Patriot Act For Four Years With NO Concessions

from the oh-come-on dept

As we've discussed, there were some very questionable provisions in the Patriot Act which were set to expire last year, but got extended, officially to allow time for debate. There was none, and when the extension was set to expire, Congress extended the clauses again for 90 days, supposedly to debate them. There were some superficial discussions, but the end result is what many people knew would happen anyway: the provisions are going to be extended for four years, with no concessions or greater oversight. Not only that, but the leadership from both major parties, who have agreed to this "deal," want to pass it with little or no debate:

The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire, according to officials in both parties who spoke on condition of anonymity. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government.

So, let's see. The government grants itself the power to abuse the 4th Amendment and spy on people with little oversight, and it would prefer that there not be any debate over this, because pesky people might raise the fact that this is wide open for abuse, and the senators don't want to have to talk about that.

Filed Under: extension, oversight, patriot act, wiretaps

As Expected, House Agrees To Extend Patriot Act With No Discussion, No Oversight

from the civil-liberties? dept

We all knew last week, when the House failed to renew three controversial clauses in the Patriot Act that allow the government to spy on people with little oversight, that it was a temporary reprieve. Indeed, just a week later, with a slight procedural change, the same provision has been approved, and now it moves to the Senate, where there are three separate bills for extending these clauses (and none about getting rid of them, as was supposed to have happened by now). Only one of the three bills, put forth by Senator Patrick Leahy, includes additional oversight. The two others -- from Senator Chuck Grassley and Senator Dianne Feinstein -- do not include any oversight.

But, really, we should be asking why these provisions are being extended at all. The reason for allowing them in the original Patriot Act was that they were "needed" in the immediate aftermath of terrorist attacks. But they were put forth with clear sunset provisions, recognizing that those three provisions should not be the norm. Over the years, there has been tremendous evidence of abuse of the Patriot Act, well beyond its intended purposes, so at the very least, there should be much greater oversight. But, even worse, when these provisions were extended last year, the excuse for extending them was that there wasn't enough time to debate the provisions. So the one year extension was supposed to be for the purpose of debate. Yet no debate happened. Hell, no discussion happened. Instead, everyone waited, and when the deadline came, they just agreed to push the deadline out further (and Grassley's plan is to push it out forever).

Shouldn't we be asking why there's been no public discussion or debate on the need for these provisions? To date, the extent of the "discussion" has been to have various thinktanks make statements in support of these provisions that are either misleading or flat-out false. Don't the American people deserve better?

In the meantime, if you'd like to see if your elected representative voted in favor of the extension, you can see the roll call tally of all the votes. I'm happy to see my Rep. voted against it (after abstaining last round).

Filed Under: house, oversight, patriot act

Once Again, Feds Found To Be Abusing Surveillance Procedures With Little Oversight

from the feeling-safer? dept

Every few months it seems that yet another report comes out saying that the various intelligence agencies have abused their powers to spy on people with little (or no) oversight. The latest such report, released thanks to a court battle by the ACLU explains (in heavily redacted terms) that there are still widespread abuses of the process of wiretapping people under the FISA law (though, it may not be quite as bad as in the past). Of course, the specific details are all redacted.

Separately, a Freedom of Information request by Chris Soghoian has turned up how the feds now regularly are tracking real-time info such as credit card transactions (as you make them) without first getting a court order. Apparently, the Justice Department is allowing agents to write their own subpoenas, and the only role a judge plays is in ordering that the surveillance not be disclosed. Once that happens, credit card companies, mobile operators, rental car companies and even retail stores with loyalty cards end up giving the government a direct, real-time feed. So, yes, the government may know about that giant bag of nacho chips you bought at Costco before you even make it home. Obviously, there may be good reasons for the government to want real-time info on certain people that they're watching but doesn't it seem a bit strange to avoid having to go to a judge and proving probable cause before being allowed to get that kind of info?

Filed Under: oversight, privacy, real time, surveillance, warrants, wiretaps