UK Government Goes Full Orwell: Snooper's Charter, Encryption Backdoors, Free Speech Suppression

from the 1984-wasn't-a-manual dept

The old joke goes "George Orwell's 1984 was a warning, not a 'how to' manual." But that joke is increasingly less funny as the UK really seems to be doing everything it can to put in place Orwell's fictitious vision -- just a few decades later. Right after the election a few weeks ago, we noted the government's plan to push forward with its "extremist disruption orders" (as had been promised). The basic idea is that if the government doesn't like what you're saying, it can define your statements as "extremist" and make them criminal. Prime Minister David Cameron did his best Orwell in flat out stating that the idea was to use these to go after people who were obeying the law and then arguing that the UK needed to suppress free speech... in the name of protecting free speech. Really.

For too long, we have been a passively tolerant society, saying to our citizens: as long as you obey the law, we will leave you alone. It’s often meant we have stood neutral between different values. And that’s helped foster a narrative of extremism and grievance.

This government will conclusively turn the page on this failed approach. As the party of one nation, we will govern as one nation and bring our country together. That means actively promoting certain values.

Freedom of speech. Freedom of worship. Democracy. The rule of law. Equal rights regardless of race, gender or sexuality.

We must say to our citizens: this is what defines us as a society.

It's a fairly amazing speech where Cameron can -- within just a few sentences -- both argue for the rule of law and that obeying the rule of law should not keep you out of trouble.

Earlier this week, the Queen gave her traditional "Queen's Speech" which lays out the legislative agenda for the new Parliament, and it went quickly down the Orwellian path as well. Apparently, suppressing free speech and civil liberties will be done in the name of mandatory "social cohesion."

Measures will also be brought forward to promote social cohesion and protect people by tackling extremism. New legislation will modernise the law on communications data, improve the law on policing and criminal justice, and ban the new generation of psychoactive drugs.

That first sentence is about the extremism orders, but the second part may be even more troubling. It's the Queen making it clear that the Snooper's Charter is returning -- but even worse than before. If you don't recall, the UK government has been trying to pass this bill that would grant the government massive surveillance powers. David Cameron insists this is necessary because he's seen it work on fictional crime shows that he watches on TV (really). The last major attempt to push this through failed thanks to then Deputy Prime Minister Nick Clegg blocking it. But with Clegg out of the way following the last election, the government is going for the gold in pushing for an even broader Snooper's Charter including mandatory backdoors into encryption:

In a surprise move, the government is to introduce an investigatory powers bill far more wide-ranging than expected. The legislation will include not only the expected snooper’s charter, enabling the tracking of everyone’s web and social media use, but also moves to strengthen the security services’ warranted powers for the bulk interception of the content of communications.

Of course, as we've been discussing for quite some time now, such backdoors into encryption are monumentally stupid and counterproductive. They weaken the security and privacy of everyone. And, of course, we've already discussed how once one country demands its own backdoors, others will want them as well. And, of course, such backdoors always come back to bite everyone by opening up avenues for malicious and nefarious attacks -- no matter how often law enforcement insists that it can keep things safe. You are, by definition, opening up a vulnerability. And it will lead to less safety and security.

Filed Under: backdoors, bulk collection, david cameron, encryption, extremism disruption orders, free speech, investigatory powers, mass surveillance, queen's speech, snooper's charter, uk

Senate Fight Is On Over NSA Surveillance Reform

from the line-up-the-fud dept

Earlier this week, the House voted overwhelmingly in favor of the USA Freedom Act, which takes some small steps towards limiting the NSA's surveillance efforts. And, in fact, as Rep. Justin Amash has pointed out, many of the no votes actually came from people who felt USA Freedom doesn't go nearly far enough (which is true). As we mentioned at the time, the fight now moves to the Senate, and the opening gambit is that Senator Mitch McConnell has pushed out a "short term" reauthorization, that would just renew Section 215 through July 31st, supposedly to give the Senate more time to "debate" this issue. This is as opposed to his original bill that renewed it through 2020.

But there's a fight being set up here. A whole bunch of Senators have said that they won't, under any circumstances vote for any renewal bill, short or long:

A bipartisan group of lawmakers on Thursday issued a clear and direct joint statement declaring their intent to oppose any extension of the Patriot Act's expiring surveillance authorities that does not end the National Security Agency's bulk collection of U.S. call data.

"We will not agree to any extension of the NSA's bulk-collection program, which has already been ruled unlawful by the Second Circuit Court of Appeals," the group, which includes Sens. Patrick Leahy and Mike Lee in addition to Reps. Bob Goodlatte, John Conyers, Jim Sensenbrenner, and Jerrold Nadler, said.

Meanwhile, on the flip side, you have McConnell and Senate Intelligence Committee boss Senator Richard Burr spewing pure nonsense about how not renewing Section 215 will somehow put us all at risk:

"We're not taking up the House bill," Senate Intelligence Committee Chairman Richard Burr, another defender of the NSA, told reporters Wednesday. "The program as designed is effective, and members are reluctant to change things that are effective just because of public opinion."

Burr said he views the USA Freedom Act as "one and the same" as allowing the Patriot Act provisions to expire entirely. "Because when you do away with bulk storage, you basically have an unworkable system in real-time," he said.

Almost everything Burr states above is totally false. First of all, the program "as designed" is not effective. That's the conclusion of almost everyone who has looked at the details. The White House task force set up to study the program said that it couldn't find any terror attacks stopped by the program. Three Senators on the Intelligence Committee have said the program has never been useful. The Privacy and Civil Liberties Oversight Board (PCLOB) could find no justification for the program. A district court judge, Richard Leon, spoke out about how surprised he was that the DOJ presented no evidence that the program was useful.

How stupid does Burr think everyone is to then go out there and claim that the program is "effective" and that the Senate believes it's effective.

Separately, the argument that "doing away with bulk storage" creates an "unworkable system" makes no sense either. Given the recent 2nd Circuit ruling, it also appears to be advocating for a program that is both illegal and unconstitutional.

And, of course, that raises a separate point. Even if the Senate does a clean renewal of Section 215, the court has already ruled that that law does not allow for such bulk collection/storage. So, Burr can't claim it's necessary to renew 215 to keep bulk collection, since the law does not actually allow that.

A lot of this is just idiotic political posturing. As Amash notes, this may all just be a game by McConnell and other surveillance state supporters in the Senate to water down an already weak USA Freedom Act bill to make it even less useful (or worse).

Either way, this is all going to come to a head next week. The Senate wants to get this done by the 22nd of May (even though Section 215 doesn't expire until the end of the month), as they're not supposed to be in session the final week of the month. Stay tuned for next week...

Filed Under: bulk collection, mass surveillance, mitch mcconnell, nsa, patriot act, richard burr, section 215, senate, surveillance, surveillance reform, usa freedom act

House Votes For USA Freedom Act By Overwhelming Margin; Now Up To The Senate

from the baby-steps dept

Showing that Congress realizes that at least something needs to be done to reform the surveillance state, the House voted overwhelmingly for the USA Freedom Act today, 338 to 88 (a significantly higher margin than when they approved last year's -- much weaker -- bill). Now, the big question is what will the Senate do? It can try to push forward with Mitch McConnell's preferred plan of just re-upping Section 215 for another few years with no changes and no restrictions. It can pass basically the same USA Freedom Act. Or, it can pass an even stronger surveillance reform bill. Chances are that it will pass the same bill that the House just passed -- but many are pushing for a stronger bill.

Senator Ron Wyden has said that he's looking to strengthen the Senate version, in particular trying to end backdoor searches under Section 702 of the FISA Amendments Act:

“I am working with Senate colleagues to pass additional reforms, particularly ending the warrantless backdoor searches of Americans' personal electronic communications under Section 702 of the Foreign Intelligence Surveillance Act. And I have made it clear I will fight any effort to extend mass surveillance of Americans’ records through a straight renewal of the Patriot Act – even a short-term one.

“Supporters of dragnet surveillance are fighting to preserve the status quo, but the American public is rightfully demanding a change. It is time for mass surveillance to end, and I will filibuster any attempt to extend this illegal surveillance, which violates core American rights without making our country any safer.

Meanwhile, Rep. Zoe Lofgren expressed similar concerns in the floor debate before the passage of the bill, noting that it could have been better. She voted for it, but hoped that her colleagues in the Senate would fix things like the backdoor loophole. As she noted, it's an important step forward, but it did not go far enough:

"The USA FREEDOM Act makes meaningful reforms to a few of our nation's surveillance programs. I applaud the bill's authors who worked to make sure these improvements were included.

"But this bill does not end all of the warrantless bulk collection of US persons' communications and data. While the legislation does not create these privacy violations, it fails to address widely reported privacy violations that occur under Section 702 of the FISA Amendments Act and Executive Order 12333.

"The House voted last year to close these backdoor forms of warrantless bulk surveillance by an overwhelming margin of 293-123. Reformers were blocked by Leadership and the Rules Committee from considering those much needed improvements to this bill today.

"Continuing these backdoor surveillance programs is wrong, detrimental to our economy, our competitiveness abroad, and the public's trust. It's time to end these serious privacy violations so that our government adheres to the constitution and protects electronic privacy.

"This bill is an improvement over the status quo. During Committee consideration the Judiciary Chairman and others assured reformers that once this bill passed we will quickly address backdoor surveillance loopholes under Section 702 and Executive Order 12333. If these commitments are not kept, reformers will reconsider their support for this legislation when it returns to the House from the Senate."

Again, this bill is a step forward, and the very fact that this debate is happening at all is a sign of how much impact the Snowden leaks have legitimately had on this debate. But, as most people recognize, there is still much to be done -- and the first part of that should happen over the next week in the Senate.

Filed Under: backdoor searches, bulk collection, congress, ed snowden, mass surveillance, nsa, ron wyden, section 215, section 702, senate, usa freedom act, zoe lofgren

Latest Explanation For James Clapper Lying About 'Essential' NSA Spy Program: 'He Forgot About It'

from the you-expect-us-to-believe-that? dept

By now, one hopes, you've seen this video of James Clapper lying to Senator Ron Wyden and the American public while testifying before Congress in early 2013: Here's the key transcript:

Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.

This was a lie. Many people believed it was a lie at the time, but that was confirmed thanks to the documents leaked by Ed Snowden, who later claimed that seeing that bit of testimony helped convince him that he needed to go through with his plan to leak this information.

James Clapper, of course, is the Director of National Intelligence, and the heads of the various intelligence agencies basically report in to him. He's still in that job, which many people argue is a complete travesty. He flat out lied to Congress and got away with it.

What's been really odd is that the story as to why Clapper lied seems to keep changing. When questioned about this, Clapper's initial response was that he thought that Wyden was asking about collection of email information, which is clearly not the case if you just listen to the actual question. Wyden, pretty clearly, says "any type of data at all." About a week later, Clapper changed his story, saying that he believed the question was an unfair "loaded question" (he compared it to the "when did you stop beating your wife" type of question -- even though it's not that at all) and then said that he gave "the least untruthful answer."

This didn't make much sense either -- and it made even less sense when Senator Wyden revealed that he didn't just spring this question on Clapper, but had sent it to Clapper's office a day ahead so he could review the question and be aware of what he was to be asked. On top of that, Wyden revealed that after Clapper's answer -- which Wyden knew was false -- Wyden staffers sent a letter to Clapper asking him if he wanted to amend his answer, and Clapper's office refused to do so.

Finally, about a month later, Clapper finally admitted that he lied, now claiming that it was all a "mistake."

"mistakes will happen, and when I make one, I correct it."

Except... he had been given the chance to correct it and he didn't. It was only after it was publicly revealed (via Snowden and Glenn Greenwald) that Clapper was outright lying that he claimed he made "a mistake." But, even then, it only came after pretending he misheard the question, then claiming that it was a loaded question (when it was not). And then, of course, months later, Clapper could pretend, with the benefit of hindsight, that he should have been more forthright about the program, but that's difficult to believe. And none of it matters, because the DOJ refuses to investigate Clapper for lying.

And yet, Clapper's story continues to keep changing. Late last year, he tried to rewrite the story, suggesting that he was sandbagged and caught off-guard, rather than lying:

“When I got accused of lying to congress because of a mistake ... I had to answer on the spot about a specific classified program in a general, unsecure setting.”

And, now, the latest is that the top lawyer in Clapper's office (ODNI), Bob Litt, is trying to rewrite the story even more, by claiming that James Clapper forgot about the metadata collection program when he answered Wyden's question:

“This was not an untruth or a falsehood. This was just a mistake on his part,” Robert Litt, the general counsel for the Office of the Director of National Intelligence, said during a panel discussion hosted by the Advisory Committee on Transparency on Friday.

“We all make mistakes.”

Litt on Friday said that Clapper merely did not have a chance to prepare an answer for Wyden and forgot about the phone records program when asked about it on the spot.

“We were notified the day before that Sen. Wyden was going to ask this question and the director of national intelligence did not get a chance to review it,” Litt said.

“He was hit unaware by the question,” Litt added. “After this hearing I went to him and I said, ‘Gee, you were wrong on this.’ And it was perfectly clear that he had absolutely forgotten the existence of the 215 program.”

Instead, Litt said, Clapper had been thinking about separate programs authorized under Section 702 of the Foreign Intelligence Surveillance Act, which the NSA has used to collect massive amounts of foreigners’ Internet data. The law explicitly prohibits the government from gathering the same kind of data about Americans, unless t is “incidental.”

“If you read his answer it is perfectly clear that he was thinking about the 702 program,” Litt said. “When he is talking about not wittingly collecting, he is talking about incidental collection.”

Litt, he said, also erred after the hearing by not sending a letter to the panel to correct the mistake.

First of all, while Litt at least is admitting that Wyden had sent the question in beforehand, he leaves out the part about Wyden asking Clapper's office the next day if it wanted to amend Clapper's answer. If it's true that Litt immediately told him that Clapper was wrong, then you would think when asked by Wyden if he wanted to amend his answer, he would have done so. He did not. So either Litt told Clapper he was wrong and Clapper said, "Hey, let's let that lie stand," or Litt is not being truthful here either. It wasn't just them not sending a letter correcting the mistake, but it was directly rejecting Wyden's staff specifically asking them if they wanted to correct the record. That shows that any claim that Clapper just "forgot" or even "misspoke" has to be a flat out lie, since he had a clear opportunity to correct the mistake and was even asked to do so, and consciously chose not to do so.

But much more importantly, considering just how much Clapper and others have been prattling on for years about how "crucial" and "important" the bulk phone records collection is in protecting the American public, it is simply unbelievable to argue that Clapper would "forget" about the program. Either that means the program is not important at all... or that someone is lying.

The fact that Clapper's story on this keeps changing suggests he still can't come to admit the obvious answer: he didn't want to reveal his beloved secret program, and so he lied. He just flat out lied. And he's still lying in failing to admit that.

Filed Under: bulk collection, james clapper, lying to congress, nsa, odni, robert litt, ron wyden, section 215, surveillance

These Clueless Politicians Are The Ones Determining If The NSA Gets To Keep Spying On All Of Us

from the we-deserve-better dept

On Thursday, the 2nd Circuit appeals court delivered a huge win for people who believe in the 4th Amendment and civil liberties, even if the court didn't make it all the way to a 4th Amendment analysis. It still showed that the big metadata collection program that the NSA (and its defenders) claim is authorized by Section 215 of the PATRIOT Act clearly was not so authorized. The law is pretty clear that you can't do what the NSA is doing, but thanks to an ever-compliant rubber-stamp-wielding FISA Court, the program got a quick rubber stamp with little real thought. However, that's now changing (thanks to Ed Snowden...).

But the really incredible thing has been the reaction to this ruling by the politicians who are about to vote on surveillance reform. The claims are so ridiculous and so wrong that it makes you wonder how the hell these are the people in charge of determining the future of NSA surveillance. Let's start with Senator John McCain. Rather than discuss the specific reasoning in the ruling and the failures of the NSA and Congress that the case pointed out, McCain went with the kneejerk "But 9/11!" response even though it makes absolutely no sense at all in this context:

“It’s pretty clear that 9/11 could have been prevented if we had known about some of the communications that were linked to those who committed the terrible atrocity of 9/11.”

McCain added that the government has to balance that capacity with privacy and admitted that it has overstepped from “time to time.” While he called for a public debate to come to an agreement that balances privacy with security, he said it’s integral that Americans “understand” the threat.

“People seem to have forgotten 9/11,” he said.

“People don’t understand that there are thousands of young people all over the world who are motivated by this radical brand of Islam, which is our enemy.”

First of all, no, 9/11 would not have been prevented if this info had been available. While some have claimed that such a program would have allowed officials to track a phone call from Khalid al-Midhar, that story has since been debunked, as it was noted that federal officials were already tracking such info -- they just failed to put the information together in time. Meanwhile, as for all these repeats of "9/11, 9/11," it's worth remembering that even the leaders of the 9/11 Commission have said the surveillance program goes too far.

And, of course, none of that touches on what was actually in the ruling itself, which makes a really strong argument as to why the bulk phone records program is bogus and a violation of the 4th Amendment (no, it doesn't go all the way there, but lays all the groundwork for such a ruling). And, really, it's incredibly hypocritical to argue that because of an attack 14 years ago, we should completely give up our fundamental Constitutional freedoms. Is McCain seriously arguing that a single terrorist attack should wipe out the 4th Amendment?

Next up on the parade of cluelessness: Senate Majority Leader Mitch McConnell who not only continues to defend the bulk phone records collection, but is more adamant than ever that Section 215 of the PATRIOT Act must be renewed to keep that program going -- even though the court just clearly said that the law does not authorize such a program. But, even worse, McConnell still doesn't seem to understand even the most basic facts about the program he thinks it's urgent to renew. His main complaint about the alternative "USA FREEDOM Act" is this:

"The USA Freedom Act would replace Section 215 with an untested, untried, and more cumbersome system. It would not end bulk collection of call data," McConnell said, referring to the provision of the Patriot Act that the NSA says justifies its bulk data sweeps. "Instead, it would have untrained corporate employees with uncertain supervision and protocols do the collecting. So it switches this responsibility from the NSA, with total oversight, to corporate employees with uncertain supervision and protocols.

Except, he's 100% wrong. As in totally wrong. The data he's talking about are the phone records that every phone company already has and already keeps for a certain period of time. The bulk phone records program just makes sure that the same info is also given to the NSA. So, get rid of the program and the same employees at the same telcos with the same experience and training will still have access to it. Nothing changes on that front, no matter what insane thing McConnell says.

But that also doesn't stop Senator Tom Cotton from making the same absolutely incorrect claim:

"One alternative offered by opponents of this program is to have phone companies retain control of all call data and provide the NSA only the data responsive to searches phone companies would run on the NSA's behalf. This is not technologically feasible."

Uh, sure it's technically feasible. It's how plenty of other programs already function.

Seriously: how are these the people voting on this?

Or how about Marco Rubio? He also plays the stupid, wrong, debunked "would have stopped 9/11 card":

"Here's the truth. If this program had existed before 9/11, it is quite possible that we would have known that the 9/11 hijacker Khalid al-Mihdhar was living in San Diego and making phone calls to an al-Qaida safehouse in Yemen. There's no guarantee we would have known. Theres no way we can go back in time and prove it, but there is a probability that we would have known and there's a probability that American lives could have been saved."

Except, as already noted above, that claim was debunked by multiple people, including in a detailed ProPublica piece.

Rubio also went further in misrepresenting the program:

"The next time that any politician—senator, congressman, talking head, whatever it may be—stands up and says that the U.S. government is listening to your phone calls or going through your phone records, they're lying. It just is not true."

Rubio is setting up a strawman here. No one is saying that they're listening to your calls or "going through" your phone records (though they are doing that for some people. But everyone (now) openly admits that the NSA collects those phone records -- and that's the thing people are concerned about.

Finally, we have Senator Richard Burr, the head of the Senate Intelligence Committee, who's supposed to understand these programs. Yet he screwed up so badly that his office had to issue a correction and go back and literally rewrite the official transcript, after Burr claimed that the same program sucked up IP addresses in addition to phone numbers.

Either way, there's a lot of pure FUD going on out there right now, almost all of it in the service of trying to let the NSA keep its toys and continue to undermine the 4th Amendment. Don't let them get away with it.

But, even more importantly, people should be asking: why are we letting these idiots make the decision on this stuff when they either don't understand it or are outright lying to the American public?

Filed Under: bulk collection, john mccain, marco rubio, mitch mcconnell, nsa, patriot act, richard burr, section 215, senators, surveillance, tom cotton, usa freedom act

Huge Win: Appeals Court Says NSA's Bulk Phone Records Collection Not Actually Authorized By PATRIOT Act

from the huge-win dept

Whoa. In a huge ruling, the Second Circuit appeals court has ruled that the NSA's bulk phone records collection is not authorized by the PATRIOT Act. In other words, for all the debate about the renewal of Section 215 this month, which the government insists enables such bulk collection, this appeals court says "nope." The ruling is important on a number of different points, even though it doesn't touch on the constitutionality of the program. It does make some other key points though. The biggest, as Rep. Jim Sensenbrenner (author of the PATRIOT Act) has said all along is that, contrary to the US government's claims, Section 215 does not authorize the bulk collection of any data.

We hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program. We do so comfortably in the full understanding that if Congress chooses to authorize such a far‐reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously. Until such time as it does so, however, we decline to deviate from widely accepted interpretations of well‐established legal standards.

The actual ruling is overturning a district court ruling that had previously tossed out a challenge to the Constitutionality of the bulk metadata program by the ACLU. This ruling reinstates that case and sends it back to the lower court. As part of that, the court doesn't yet rule on the constitutionality of the overall program, but rather just notes that from the plain reading of Section 215, it does not mean that it authorized the government to collect such a massive trove of phone records.

The other key point in the ruling is on the question of "standing." The DOJ regularly claims that people cannot challenge these programs unless they have specific evidence that they were spied on under the program. Plenty of cases have been thrown out after plaintiffs couldn't prove that the government had directly applied the program to their information, and thus the courts said they lacked standing. In this case, at least, the district court had found that the ACLU had standing, and the appeals court reconfirms that. But here's the key point: the court notes that merely the collection of the data is enough to show standing. This is in contrast to the DOJ's attempt to claim that the collection doesn't matter -- it's only if the government then looks at the data. The court disagrees, reminding the DOJ that the Fourth Amendment applies to not just "searches" but also "seizures," and the data collection is a seizure:

Appellants in this case have, despite those substantial hurdles, established standing to sue, as the district court correctly held. Appellants here need not speculate that the government has collected, or may in the future collect, their call records. To the contrary, the government’s own orders demonstrate that appellants’ call records are indeed among those collected as part of the telephone metadata program. Nor has the government disputed that claim. It argues instead that any alleged injuries here depend on the government’s reviewing the information collected, and that appellants have not shown anything more than a “speculative prospect that their telephone numbers would ever be used as a selector to query, or be included in the results of queries of, the telephony metadata.”

But the government’s argument misapprehends what is required to establish standing in a case such as this one. Appellants challenge the telephone metadata program as a whole, alleging injury from the very collection of their telephone metadata. And, as the district court observed, it is not disputed that the government collected telephone metadata associated with the appellants’ telephone calls. The Fourth Amendment protects against unreasonable searches and seizures. Appellants contend that the collection of their metadata exceeds the scope of what is authorized by § 215 and constitutes a Fourth Amendment search. We think such collection is more appropriately challenged, at least from a standing perspective, as a seizure rather than as a search. Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them. “[A] violation of the [Fourth] Amendment is fully accomplished at the time of an unreasonable governmental intrusion.” United States v. Verdugo‐Urquidez, 494 U.S. 259, 264 (1990) (internal quotation marks omitted). If the telephone metadata program is unlawful, appellants have suffered a concrete and particularized injury fairly traceable to the challenged program and redressable by a favorable ruling.

That's a very important finding and one that I imagine will also be quite useful in challenging other aspects of NSA surveillance.

Furthermore, the court notes that even beyond the "seizure" aspect, the government is clearly doing "searches" as well:

The government admits that, when it queries its database, its computers search all of the material stored in the database in order to identify records that match the search term. In doing so, it necessarily searches appellants’ records electronically, even if such a search does not return appellants’ records for close review by a human agent. There is no question that an equivalent manual review of the records, in search of connections to a suspect person or telephone, would confer standing even on the government’s analysis. That the search is conducted by a machine might lessen the intrusion, but does not deprive appellants of standing to object to the collection and review of their data.

The DOJ tried to rely on the big ruling against Amnesty International at the Supreme Court a couple of years ago, noting that that was dismissed because the record collection there was speculative. Yet, in this case, that's not true:

Here, appellants’ alleged injury requires no speculation whatsoever as to how events will unfold under § 215 – appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the FISC; and the records have been collected. Amnesty International’s “speculative chain of possibilities” is, in this context, a reality.

The court also finds that there's standing on First Amendment grounds, thanks to the chilling effects of surveillance:

Appellants likewise have standing to assert a First Amendment violation. Appellants contend that their First Amendment associational rights are being violated, both directly and through a “chilling effect” on clients and donors. The Supreme Court has long recognized that an organization can assert associational privacy rights on behalf of its members, stating that “[i]t is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute . . . a restraint on freedom of association.”

There's a lot more in the ruling as well, including a clear rejection of the idea that the program and the orders of the FISA court to collect this data are somehow "not reviewable" by the judicial system. The DOJ says that because the court orders are secret, that means there can't be judicial review. The 2nd Circuit's response is basically, "you're really undermining your own case here":

Upon closer analysis, however, that argument fails. The government has pointed to no affirmative evidence, whether “clear and convincing” or “fairly discernible,” that suggests that Congress intended to preclude judicial review. Indeed, the government’s argument from secrecy suggests that Congress did not contemplate a situation in which targets of § 215 orders would become aware of those orders on anything resembling the scale that they now have. That revelation, of course, came to pass only because of an unprecedented leak of classified information. That Congress may not have anticipated that individuals like appellants, whose communications were targeted by § 215 orders, would become aware of the orders, and thus be in a position to seek judicial review, is not evidence that Congress affirmatively decided to revoke the right to judicial review otherwise provided by the APA in the event the orders were publicly revealed.

And then there's this lovely line:

In short, the government relies on bits and shards of inapplicable statutes, inconclusive legislative history, and inferences from silence...

Hey, DOJ/NSA: this court isn't buying what you're selling.

Next up, the DOJ trots out a standard talking point, about how collecting all this info is just like a grand jury subpoena. Once again, the court points out that's ridiculous, focusing on the fact that Section 215 requires the information to be "relevant." We've discussed in the past how the NSA has reinterpreted relevance to mean "might be useful at some point in the future." And the court explicitly rejects that:

The records demanded are all‐encompassing; the government does not even suggest that all of the records sought, or even necessarily any of them, are relevant to any specific defined inquiry. Rather, the parties ask the Court to decide whether § 215 authorizes the “creation of a historical repository of information that bulk aggregation of the metadata allows,”.... because bulk collection to create such a repository is “necessary to the application of certain analytic techniques,” ... That is not the language in which grand jury subpoenas are traditionally discussed.

Thus, the government takes the position that the metadata collected – a vast amount of which does not contain directly “relevant” information, as the government concedes – are nevertheless “relevant” because they may allow the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected up to that point, to identify information that is relevant. We agree with appellants that such an expansive concept of “relevance” is unprecedented and unwarranted.

And further on that point:

The government has not attempted to identify to what particular “authorized investigation” the bulk metadata of virtually all Americans’ phone calls are relevant.... Put another way, the government effectively argues that there is only one enormous “anti‐terrorism” investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.

And, as the court notes, that doesn't just redefine "relevant" -- it reads it right out of the law:

The government’s approach essentially reads the “authorized investigation” language out of the statute. Indeed, the government’s information‐gathering under the telephone metadata program is inconsistent with the very concept of an “investigation.” To “investigate” something, according to the Oxford English Dictionary, is “[t]o search or inquire into; to examine (a matter) systematically or in detail; to make an inquiry or examination into.” 8 Oxford English Dictionary 47 (2d ed. 2001). Section 215’s language thus contemplates the specificity of a particular investigation – not the general counterterrorism intelligence efforts of the United States government. But the records in question here are not sought, at least in the first instance, because the government plans to examine them in connection with a “systematic examination” of anything at all; the records are simply stored and kept in reserve until such time as some particular investigation, in the sense in which that word is traditionally used in connection with legislative, administrative, or criminal inquiries, is undertaken. Only at that point are any of the stored records examined. The records sought are not even asserted to be relevant to any ongoing “systematic examination” of any particular suspect, incident, or group; they are relevant, in the government’s view, because there might at some future point be a need or desire to search them in connection with a hypothetical future inquiry.

The court regularly cites the PCLOB report that found the Section 215 program unconstitutional, and seems to have clearly understood the deeper issues with this program. While it falls short of ordering the program to stop (noting that the program is set to end at the end of this month anyway), this ruling is pretty suggestive of how the court might eventually rule on the program's constitutionality if it returns.

Oh, and how can we leave out this tidbit on "secret law":

Congress cannot reasonably be said to have ratified a program of which many members of Congress – and all members of the public – were not aware.

And it totally rejects the usual NSA defenders' stance that it wasn't secret because members of Congress could have found out about the program if they took significant steps. Not enough, the court says:

In 2010, the Senate and House Intelligence Committees requested that the Executive Branch provide all members of Congress access to information about the program before the reauthorization vote. In response, the Executive Branch provided the Intelligence Committee chairs with a classified paper on the program, which was then made available to members of Congress. That availability, however, was limited in a number of ways. First, the briefing papers could only be viewed in secure locations, for a limited time period and under a number of restrictions.... The government does not dispute appellants’ assertion that members of Congress could not bring staff with them when they went to read the briefing papers, nor discuss the program with their staff. And, of course, no public debate on the program took place. In 2011, briefing papers were also provided to the Intelligence Committees, but only the Senate Committee shared the papers with other members of that body who were not committee members. The House Intelligence Committee did not share the papers at all with non‐members, leaving the non‐committee Representatives in the dark as to the program.

We had highlighted Rep. Mike Rogers (then head of the House Intelligence Committee) for failing to make the documents available, and it's nice to see the court pick up on that.

While this doesn't go all the way to ending the program, this is a huge ruling from an important appeals court. This issue will still have to play out for years in other courts and eventually the Supreme Court, but today's ruling by this court is a huge victory for the 4th Amendment, even if the court didn't go all the way there in its analysis.

Filed Under: 1st amendment, 2nd circuit, 4th amendment, bulk collection, congress, doj, house intelligence committee, mass surveillance, nsa, patriot act, section 215, standing
Companies: aclu

New Version Of USA Freedom Surveillance Reform Bill To Hit The House This Week

from the more-improvements,-but-a-few-worrisome-concessions dept

The USA Freedom Act is back in another attempt to rein in the NSA -- one that was sabotaged twice last year. A bill under this name was first introduced in the House, which actually passed out of committee, but only after being gutted in response to pressure from the administration. A much better version was introduced by the Senate, but this one never managed to make it out to the floor for a full vote -- held back by NSA defenders who portrayed its Section 215 reforms as somehow more damaging to privacy than an unrestrained NSA.

This House bill heads into committee with only a few weeks remaining before certain provisions of the Patriot Act are due to expire, including the Section 215 bulk records program. Sen. Mitch McConnell has done what he can to lower this bill's chance of success. Shortly before USA Freedom was to be introduced into Senate, he delivered a bill that would authorize a "no questions asked" renewal of these provisions until the end of 2019. Thanks to his position as Majority Leader, he was able to bypass the committee vote and bring it straight to the floor.

This version of USA Freedom is obviously a vast improvement over the previously-eviscerated House bill, but there are still concerns on both sides of the issue. NSA defenders will probably oppose it because it supposedly goes too far. Civil liberties defenders will oppose it because it doesn't go far enough. The ACLU has already expressed its concerns about the pending legislation.

“The disclosures of the last two years make clear that we need wholesale reform. Congress should let Section 215 sunset as it’s scheduled to, and then it should turn to reforming the other surveillance authorities that have been used to justify bulk collection,” said Jameel Jaffer, the group’s deputy legal director.

What the bill does do is fix a lot of what was broken on its last trip through. The legislation would end the Section 215 bulk records collection and force the NSA to perform targeted requests for phone metadata from telcos. It would also provide an avenue to challenge the use of this data in court by adding a requirement to serve notice to those whose records were accessed. In addition, it would make National Security Letter gag orders challengeable by those companies served with one and require a "periodic review" of outstanding non-disclosure orders to ensure they're still valid.

What it doesn't do is actually end Section 215. It would end the bulk collection but "emergency" requests could still be made to circumvent the additional search restrictions USA Freedom imposes. It also preserves the NSA's ability to deploy roving wiretaps.

Sen. Ron Wyden says he's not in love with the new bill, but he'll support it.

"I obviously want it to go further, closing the backdoor search loophole and the like," the Oregon Democrat said. "But I think Sen. Leahy's effort to end the collection of all of this personal information ... are very important and I'm in support of it."

Considering McConnell's last-minute maneuvering to save Section 215 from alteration or expiration, there will probably be others who will throw their support behind this bill rather than see the bulk records collection remain intact for the next half-decade. If nothing else, it's at least a step towards serious surveillance reform.

Filed Under: bulk collection, mass surveillance, nsa, patrick leahy, patriot act, privacy, ron wyden, section 215, surveillance, surveillance reform, usa freedom act

Former Top NSA Exec Claims He Challenged The Bulk Phone Records Program... And Was Rebuffed

from the and-everyone-laughed-at-him dept

The AP has a big story out claiming that, back in 2009, a "now-retired" but "senior NSA official" found out about the Section 215 program collecting bulk phone records from the telcos and argued that it went too far and should be stopped:

Years before Edward Snowden sparked a public outcry with the disclosure that the National Security Agency had been secretly collecting American telephone records, some NSA executives voiced strong objections to the program, current and former intelligence officials say. The program exceeded the agency's mandate to focus on foreign spying and would do little to stop terror plots, the executives argued.

The 2009 dissent, led by a senior NSA official and embraced by others at the agency, prompted the Obama administration to consider, but ultimately abandon, a plan to stop gathering the records.

The "former official" apparently found the whole program to be problematic and correctly predicted that if it ever became public it would be a problem:

The former official, who spoke only on condition of anonymity because he didn't have permission to discuss a classified matter, said he knows of no evidence the program was used for anything other than its stated purpose — to hunt for terrorism plots in the U.S. But he said he and others made the case that the collection of American records in bulk crossed a line that he and his colleagues had been taught was sacrosanct.

He said he also warned of a scandal if it should be disclosed that the NSA was storing records of private calls by Americans — to psychiatrists, lovers and suicide hotlines, among other contacts.

The article notes that these concerns did lead the Justice Department, Congress and the White House to take a closer look at the program -- and then choose to keep it going. This contradicts the narrative that some have suggested that the White House didn't fully understand the program in the past because it was preoccupied with other issues. Now it seems clear that not only were officials well aware of the program, they chose not to rein in the program when they had the chance.

The article further notes that this official and others within the NSA who were concerned with the program had offered up some suggested changes, not unlike what was actually in the USA Freedom Act that was just rejected. Perhaps more interesting, the article concludes by pointing out that if this change had been put in place, there's a decent chance that Ed Snowden never would have revealed everything else -- because this was the main program that so concerned Snowden, and which has been the centerpiece of most of the discussions since the Snowden revelations.

Filed Under: bulk collection, nsa, patriot act, section 215

Former NSA, CIA Director Claims Only ISIS Likes USA Freedom Act, Even As James Clapper Supports It

from the ridiculousness dept

As the cloture vote is set to happen tonight on the Senate version of the USA Freedom Act, the hysterics are getting... well, more hysterical. Michael Hayden (former NSA and CIA director) and Michael Mukasey (former Attorney General) have an opinion piece in the Wall Street Journal dubbing the bill "NSA Reform That Only ISIS Could Love," which is kind of hilarious given that current Director of National Intelligence, James Clapper (who usually sings in perfect harmony with Hayden) has come out in support of the bill. While the bill has some problems, it is still a step forward (and yes, I'm aware that not everyone agrees with that). But Hayden/Mukasey make a bunch of statements that are just not at all accurate. It starts off with the usual FUD about ISIS and then questions why Reid would present this bill given that:

In that threat environment, one would think that the last thing on the “to do” list of the 113th Congress would be to add to the grim news. Yet Senate Majority Leader Harry Reid has announced that he will bring to the floor the extravagantly misnamed USA Freedom Act, a major new bill exquisitely crafted to hobble the gathering of electronic intelligence.

Except that's not true. The bill is not designed to "hobble" electronic intelligence, but to respect at least some of our 4th Amendment rights, and to bar mass collection of the information without limits. Then there's this:

For starters, the bill ends the National Security Agency’s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies. The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA’s.

First off, they're simply wrong. It doesn't require a warrant, but a FISA court order under Section 215. It just limits how broad those orders can be. The reason it's not a warrant is you can't get such a broad warrant. Second, the "cumbersome and untried process" is neither cumbersome nor untried. It's how lots of investigations work today. When law enforcement needs info, it goes to court, gets a court order, and voila. And does anyone actually believe, in this digital age, that there's any actual "scurrying"? Hell, to make this process easier for the DEA in the past, AT&T was willing to embed employees with the DEA to give them faster access to the database. If anything, these are reasons why the bill doesn't go far enough. The idea that it somehow takes away US intelligence capabilities is ludicrous. Furthermore, it's already been noted that ISIS knows how to evade such surveillance: by not using electronic communications. So this has nothing to do with ISIS at all. At all.

Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.

So we shouldn't pass this bill because at some future date the FCC might possibly allow companies not to keep these records? Really?

The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation—period.

Again, misleading in the extreme. When the DOJ is seeking metadata in a criminal case, it's seeking specific metadata concerning the crime being investigated. This is about stopping the collection of all phone records. Notice that Hayden and Mukasey never bother to explain this distinction. Because they're being incredibly dishonest.

There's much more in there, but nearly all of it is dishonest. It claims that "there is no immediate or emergency need" for the bill, totally leaving out the systematic violation of Americans' 4th Amendment rights and an independent review board finding the program illegal and unconstitutional and a President who asked Congress to end the program. Yet, Hayden and Mukasey insist this program -- which has yet to show a single successful example of being used to prevent terrorism -- has to remain in place? Really?

And, of course, Hayden and Mukasey have friends. Incoming Senate Majority Leader Mitch McConnell similarly called out the specter of ISIS, despite the fact it's widely acknowledged that ISIS already knows how to avoid our surveillance efforts (and is focused on the middle east, while the USA Freedom Act is just about domestic phone records inside the US).

The USA Freedom Act has its problems, but it also has some important and useful aspects. The claim that it will somehow help ISIS by preventing such bulk data collection is simply ridiculous and untrue.

Filed Under: bulk collection, fud, isis, james clapper, michael hayden, michael mukasey, patrick leahy, surveillance, usa freedom act

Senator Harry Reid Going To Try To Push Through USA Freedom Act Before GOP Takes Over Senate

from the here-we-go dept

There were some rumors that, with the GOP about to take over the Senate, the Democratic leadership might try to finally move forward with the USA Freedom Act. The Senate bill has been languishing, despite it being considered a "compromise" bill that was widely acceptable to both intelligence community folks and many in the civil liberties community. Over the last few months, civil liberties and consumer activists groups have been growing less pleased with the bill, as the deeper they've explored it, the more worried they've become about some of how it might be abused. However, it's still considered by many to be a good start, if not (in any way) a perfect bill.

And, now, Senator Harry Reid has made the move to push forward with the bill in the lame duck session before control of the Senate flips.

Reid filed for cloture on the measure late Wednesday, a surprising move intended to address the National Security Agency's mass surveillance practices before Republicans take over the Senate next year. To advance further, the legislation would need 60 votes to end debate on the measure, and then a majority vote to pass it through the chamber.

It will be interesting to see if they actually have the 60 votes. Part of the delay has been that they weren't sure that there really were enough votes. And there were still pressures by intelligence community supporters to water down the bill (despite James Clapper saying the bill is okay as is) and by Senators Wyden and Udall to add more privacy and civil liberties protections. If they're moving for cloture, it may mean that Reid is confident that they have the votes... or it's a recognition that it's now or never given the change in control that will happen in January. We'll find out soon enough if this means there's enough support, or if Reid just threw a Hail Mary as a final ploy.

Filed Under: bulk collection, congress, harry reid, mass surveillance, nsa, patrick leahy, senate, surveillance, usa freedom act