LEAKED: White House's Bogus Talking Points On Why Senate Should Trample The 4th Amendment

from the lovely-stuff dept

Want to know the White House's key propaganda lines for refusing to allow proper oversight into how the NSA is spying on us all? Well, sit back and read on, because the White House's "talking points" on why the Senate should reject four key amendments to try to roll back some of the excesses of the broad and massive secret program to collect tons of data on Americans, has been leaked. First, some background.

As we noted yesterday, there was a "debate" in the Senate concerning the FISA Amendments Act renewal, and four specific amendments that some Senators tried to add to it to make the renewal less problematic. If you haven't been following this whole mess, you can read back through our FISA Amendments Act stories here, but the short version is that this is the bill that "legalized" warrantless wiretapping -- and which (it has since been revealed) is likely being used by the NSA to collect reams of data on Americans, despite the bill's plain text suggesting that it can only be used on foreigners. At issue is that the FISA Court has apparently issued an "interpretation" of the bill, which allows for a very broad reading of the text -- so broad, that it likely contradicts what most people believe the bill says. Only a small group of people know what this secret interpretation is, and while sitting Senators and Congressional Reps can find out, most do NOT have staff members with the necessary clearance to explain it to them. For this reason, most of the people voting on this bill have no idea how it is being used, and sometimes argue that it is not being used in ways that it is almost certainly being used (i.e., to scoop up data on many Americans without warrants). These provisions -- the FAA for short -- were set to expire last year, but were renewed for one year, ostensibly to allow for "real" debate. Of course, despite having a whole year, no debate appeared, and instead we got yesterday's charade.

Four specific amendments to try to fix (or, at least, to minimize the damage) were proposed. The EFF has a pretty quick rundown of the four proposed amendments. The White House has been urging the Senate to reject all of them and to extend the FISA Amendments Act for five more years with no questions asked. Three of the proposed amendments were already rejected last night. This morning, a short debate and then a vote will progress on the last, the Wyden-Udall amendment. Even though the other three have already been rejected, we'll explore the talking their points too, but let's start with the talking points on the Wyden-Udall amendment. Here's the White House summary:

What the Amendment Does: Requires the DNI to submit a report to Congress and the public on the impact FAA and other surveillance authorities have on the privacy of United States persons.

That's a fair assessment and seems perfectly reasonable. Here's the EFF on why this is important:

Sen. Ron Wyden, one of the most ardent defenders of civil liberties in the Senate, has been asking the NSA for months for information on how the FISA Amendments Act has impacted Americans.

The NSA has so far refused, yet, as the New York Times reported in 2009, we know the NSA was still intercepting domestic communications in a "significant and systematic" way. We also know the secret FISA court ruled, on at least one occasion, that the government had violated the Fourth Amendment when conducting surveillance under the FAA. Yet the NSA has rather unbelievably claimed releasing the number of Americans whose privacy has been violated would violate those same Americans' privacy.

Ron Wyden's amendment would force the NSA to come clean and give a general estimate of how many Americans have been affected by this unconstitutional bill, and finally give us information Americans deserve.

In addition, another Wyden amendment would clarify that the acquisition of American communications is prohibited without a warrant. Sen. Wyden has accused the government of conducting "backdoor searches," whereby the government collects communications of foreign individuals talking to Americans, but later goes back into the government's database of intercepted communications and reviews the Americans' communications. Sen. Wyden hopes this clarification to the law will help guard against further intrusive spying on American communications.

So what are the talking points from the White House for why this is a bad thing?

• The Administration opposes this amendment. The goal of this amendment is to obtain an estimate of the number of U.S. persons' communications that may have been collected. Two independent inspectors general have determined, and reported to Congress, that it is not feasible to provide actual numbers or estimates. They also found that an effort to provide such numbers by deliberately trying to identify U.S. person information would adversely affect the privacy of any U.S. persons whose incidentally collected communications may exist within the collected data.
• Representatives of the Intelligence Community have briefed the Judiciary and Intelligence Committees in more detail as to why it is not feasible to provide such numbers or estimates and stand ready to answer questions from other Members in a classified setting.
• FAA contains significant privacy protections for U.S. persons, to include extensive reporting to Congress to allow Congress to assess the privacy impact of FAA on U.S. persons.

Yes, the same bullshit we've heard before. Telling Congress how many Americans the NSA spied upon using the FAA (despite the NSA only having a mandate to watch foreigners) would somehow violate the privacy of those Americans. That is, to put it simply, insane. What they almost certainly mean is that they've collected such a large treasure trove of information, much of which they haven't actually gone through, that to estimate how many people's info was collected would require actually looking at all that data collected, which they're not supposed to do. This, still, is insane -- as it basically reveals the fact that, contrary to what most people think, and contrary to the plain language of the bill, the NSA is almost certainly using the FAA to scoop up communications on huge swaths of the American public. This is why Senator Wyden keeps insisting that the public -- and members of Congress -- would likely be shocked to find out the truth here.

The idea that it is "not feasible" to come up with a number is silly, however. There are ways to estimate these things, and it's nonsense that they won't provide an estimate. It certainly would not compromise security to admit that. It might just compromise the fact that the NSA and the administration are abusing the FAA to spy on tons of Americans.

The "briefing" members bit is also fairly bogus. We're talking about the interpretation of a public US law. That shouldn't require a Senator to go into a secret room to get a secret briefing. But, more importantly, as mentioned, most Senators simply do not have staff with the necessary clearances for such a briefing -- so while a member could take the initiative to learn this info, they are both unlikely to actually do so and if they do, unlikely to have an expert on hand who can help explain what it all means.

Finally, the argument that there are "significant privacy protections" is belied by the fact that the NSA has already been called out for violating the 4th Amendment under this act at least once. That, alone, should call for further scrutiny, but supporters of the FAA are twisting this around to claim that "the system works." As Julian Sanchez notes, the existing oversight might catch accidental abuse, but cannot and will not catch systematic abuse, which is what it appears is happening.

So these "talking points" hardly address the problem, and only serve to further mislead, as the White House looks to protect its own administration's domestic surveillance activities. When President Obama was originally running for office in 2008, he campaigned against these provisions (before eventually voting for them). Apparently, that campaigning was a flat out lie. Now he's not only supporting the provisions, his administration is being willfully misleading concerning what they mean.

Moving on to the (already rejected, but still important) Merkley Amendment. This one involved requiring that secret FISA Court rulings that interpret the FAA be made public (in redacted form, if necessary). This seems eminently reasonable. Who could be against that? Well, the White House, for one. Here's why:

• We oppose this amendment. The Executive Branch works diligently to ensure Congress is fully informed of the intelligence collection operations under FAA, notwithstanding the need for the Executive Branch to carry out certain sensitive intelligence activities in a classified manner.
• As part of Congress' intensive oversight of FISA activities, the Intelligence and Judiciary Committees receive, in classified form, all FISA Court opinions that include a significant interpretation of FISA provisions.
• We have committed to reviewing FISC opinions for release to the public with necessary redactions to protect national security equities and that effort is ongoing.
• This process must, by necessity, be undertaken with great care. In many cases, classified information is so intertwined with the legal analysis that redacting the classified information leaves a document that lacks any meaningful analysis. Because the Executive Branch is already undertaking a review of the FISC opinions for possible public release, we believe this amendment is unnecessary.

This is completely bogus, again. As we noted yesterday, going against this amendment is like arguing that we should all be able to interpret the Constitution with just the document itself, and all Supreme Court rulings that work out the nuances and interpretations should be kept secret. The idea that the Executive Branch makes sure that Congress "is fully informed of the intelligence collection operations under the FAA" is both laughable and meaningless at the same time.

Just this very debate -- and this very document -- prove that the White House isn't about keeping Congress "fully informed" but about pulling the wool over their eyes with misleading statements and kinda/sorta true in the letter, but bogus in the spirit, arguments. Members of Congress have flat out said that the FAA does not impact Americans' communications at all, when that it's known to be absolutely false. Also, the fact that the administration may provide classified briefings to Congress is, again, besides the point. We're talking about allowing the public to understand the secret interpretation of a law that impacts many Americans directly (and in which that interpretation is almost certainly contrary to the plain language and public belief about the bill), and the White House falls back on this "well we'll tell you in secret" argument?

The idea that the administration has committed to reviewing FISA opinions for public release is equally laughable. This administration has been one of the most secretive on record when it comes to exposing this kind of information, all while patting itself on the back as being the most transparent.

Moving on, we have the rather basic Leahy Amendment that shortens the date on which this extension expires from 2017 back to June 1 of the 2015, to basically move in the walls for the next time we'll have this debate in the closing days before "OMG TERRORISTS WILL DESTROY US ALL!!!@!@" again. Rather than simply punting the ball on this issue as far down the field as possible, Leahy is trying to force at least some review within the term of Obama's presidency, rather than long after it's over. This, too, was voted down so the longer timeline stays in place. The White House is pleased, for a whole bunch of completely bogus reasons:

• We support the House passed sunset date of 2017 and oppose any effort to shorten the sunset date to 2015. The extensive congressional and judicial oversight and the strong track record of compliance supports an extension longer than, not shorter than, the original authorization.
• Aligning FAA with expiration of provisions of the Patriot Act risks confusing distinct issues.
• Frequent Congressional and public debate on intelligence authorities poses a greater risk of inadvertent disclosure of classified information.
• No additional reporting requirements are necessary. Section 702 of FISA is a well calibrated statute that provides for ample oversight by all three branches of government. This oversight framework ensures robust protections for the privacy and civil liberties of U.S. persons.

This one should just make people angry. Is the White House really arguing that Congress is too stupid to hold the specifics of the FAA separate from the specifics of the wider Patriot Act? If they're confused by those issues, then they shouldn't be in this job. Period.

That second point is the real doozy. Basically, the White House doesn't want this debate, because Senators who know what kind of scam they're pulling might (*gasp*) accidentally reveal too much. So, let's just not talk about it at all. And let the NSA keep abusing it. Because, otherwise, we might actually find out about the abuse. As for the "oversight" claim, I think we've already covered just how completely bogus that claim really is.

Finally, there's the Paul amendment, which serves to reinforce the basic principles of the 4th Amendment, in reiterating that all communications are subject to the 4th Amendment's limitations on searching. Currently, many in law enforcement rely on some really questionable precedents to argue that people don't really have an "expectation of privacy" in their email. It's disingenuous in the extreme. This amendment got voted down by a whopping 79 to 12 votes. I'm sure that pleased the White House, who argued the following:

• We strongly oppose this amendment as it will effectively repeal the FISA Amendments Act and other federal laws by requiring a probable cause determination to obtain information on our foreign adversaries located overseas. As such, it would overturn years of federal law.
• This proposed amendment would severely limit the effectiveness of law enforcement, authorities at all levels of government. For example, Governments rely on legal tools such as grand jury subpoenas. The use of such tools would be prohibited under the amendment if that information is drawn from almost any system of records.

In other words, they're admitting that the FISA Amendments Act clearly tramples the 4th Amendment and allows for widespread surveillance of Americans without a warrant. Also, the Constitution isn't about making life easier for law enforcement. It's about the opposite. It's specifically about making it more difficult for law enforcement, because that's how a free society functions, by telling its law enforcement officials that they can't just snoop on everyone, but need real oversight in the form of a warrant. So to argue that this might make the NSA's job a bit harder isn't just not compelling, it's not even a legitimate reason, because it's arguing that the government should, effectively, be allowed to do whatever the hell it wants if it "makes law enforcement's job easier."

It's clear that the FISA Amendments Act is about to be extended, and the White House, even with completely bogus talking points, will prevail. But, reading through these talking points is just highlighting the depths to which our government will stoop to make sure they can continue to trample the basic principles of the 4th Amendment.

Filed Under: 4th amendment, fisa, fisa amendments act, jeff merkley, pat leahy, politics, privacy, rand paul, ron wyden, talking points, white house

Senate Finally Holds Weak 'Debate' On FISA Amendments Act... But Terrorism!

from the and-therefore-we-shouldn't-even-know-what's-going-on dept

While some in the Senate tried to skip over debate of the likely unconstitutional FISA Amendments Act, the Senate finally held a rushed and scripted "debate" today, which did very little to actually explore the issues (and the Senate Chamber was mostly empty during the "debate"). Senators Ron Wyden and Jeff Merkley did their best to raise significant issues, but Senator Dianne Feinstein kept shutting them down with bogus or misleading arguments, almost always punctuated with scary claims about how we had "only four days!" to renew the FISA Amendment Acts or "important" tools for law enforcement would "expire." It turns out that's not actually true. While the law would expire, the provisions sweeping orders already issued would remain in place for a year -- allowing plenty of time for a real debate.

Furthermore, Feinstein continued to mislead (bordering on outright lies) about the FISA Amendments Act. While some of the proposed amendments focused on finally forcing the secret interpretation of the FISA Amendments Act to be disclosed, Feinstein held up the text of the bill and insisted there "is no secret law" and that "the text is public." That assumes that "the law" and "the text of the legislation" are one and the same. They are not. As Julian Sanchez notes, imagine that Supreme Court rulings were all classified, how would you interpret the Constitution? You could make guesses, based on what the law said, but without the court's rulings, you would not know what that meant in practice. That's exactly the situation we have with the FISA Amendments Act... and it's made even worse by the fact that those who have seen the still-secret interpretation -- such as Senator Wyden -- have made it clear that its quite different than what most people think the law says.

Even more ridiculous is that the text of the FISA Amendments Act has been set since September. There's been plenty of time to actually debate these issues. Hell, last year's renewal for just one year was conditioned on the promise from the Senate that there would be debate this year. Yet they wait until December 27th to hold this fake "debate" with Feinstein spreading FUD up and down about how not renewing this for another five years means the terrorists win? This is a really shameful display of Congress caving to law enforcement's almost certainly unconstitutional desire to be able to widely spy on almost any information it can get its hands on, so long as they claim collecting that info might possibly somehow help in discovering illegal behavior by non-US citizens.

What's amazing is that those supporting the renewal of the FISA Amendments Act continue to take it on faith that the law is not being abused, even as there's already been an admission that some of the activities violated the 4th Amendment (but no further evidence of what happened or how that would be prevented), and even other tools that we were told were "proven" and "crucial" to the "war on terrorism" later turned out to be expensive boondoggles that were no help at all. Senator Saxby Chambliss was particularly ridiculous in this discussion, insisting that because there was that admission earlier this year that the 4th Amendment was abused, it shows that "oversight is working." This ignores that no further exploration followed to see how widespread the abuse was. Again, Julian Sanchez highlights just how ridiculous this is by noting that the fact that the argument is completely tautological in saying that oversight works because abuse has been discovered.

Congress has both the mandate and the obligation to oversee how law enforcement is using its surveillance powers -- and yet many of its members, led by Senator Dianne Feinstein and Saxby Chambliss, appear to be abdicating that job due to OMG TERRRORISM!@#!@#!!

Update: And they just voted on Senator Leahy's amendment, which was a pretty simple one, just shortening the term of this extension from 5 years to 3 years. All it would do is require that the next debate on this happen sooner, rather than later, but it was voted down (52 to 38) by Senators who'd rather not even discuss the fact that they're allowing the NSA and other law enforcement officials to regularly violate the Constitution. Just punt that question as far down the field as possible, I guess.

Update: And, down goes another amendment. Senator Merkley's amendment would have "encouraged" that secret interpretations of the FISA Amendments Act made by the FISA court be made public (in redacted form). This seems like common sense, but the Senate voted it down (54 to 37) -- because, apparently they like secret laws which the public isn't even allowed to know about, even if it means the NSA can snoop on nearly all of their communications without a warrant.

Update: And there goes another one. Senator Rand Paul introduced an amendment clarifying that the 4th Amendment protects all of your communications. The Senate rejected it by an overwhelming margin, 79 to 12, because apparently protecting your privacy and upholding the 4th Amendment is not the kind of thing the Senate supports these days.

Filed Under: 4th amendment, dianne feinstein, fisa, fisa amendments act, jeff merkley, privacy, ron wyden, saxby chambliss

Senator Wyden Proposes Bill That Would Protect Users From Bogus Data Caps

from the would-be-useful dept

We've argued for years that broadband data caps are not -- as the industry would have you believe -- about stopping "data hogs" or making sure that people "pay their fair share," but rather about protecting provider revenue (or, really, secretly increasing fees without "increasing" fees). A recent study from the New America Foundation has now made it clear that broadband data caps are not at all about dealing with data hogs, but almost entirely about increasing revenue for the providers.

As this paper documents, data caps, especially on wireline networks, are hardly a necessity. Rather, they are motivated by a desire to further increase revenues from existing subscribers and protect legacy services such as cable television from competing Internet services. Although traffic on U.S. broadband networks is increasing at a steady rate, the costs to provide broadband service are also declining, including the cost of Internet connectivity or IP transit as well as equipment and other operational costs. The result is that broadband is an incredibly profitable business, particularly for cable ISPs. Tiered pricing and data caps have also become a cash cow for the two largest mobile providers, Verizon and AT&T, who already were making impressive margins on their mobile data service before abandoning unlimited plans.

The paper goes on to debunk the usual arguments in favor of broadband caps. Beyond noting that the cost to providing broadband by the big guys has gone down significantly (while cost to consumers has stayed steady or gone up), they also point out that the "congestion" argument doesn't make sense. They note that even if there was congestion, a data cap would not be the best way to deal with it.

An analogy to rush hour traffic is useful here. Rush hour delays are generally caused by a spike in simultaneous demand for road access. Local governments often respond to this traffic congestion by instituting carpool lanes during certain hours, or introducing variable peak pricing for tolls, where prices are higher during the traditional workday commute than at other times. Both of these examples are methods to reduce demand during the time it is highest. It would make little sense to try and limit the total miles residents drive in a month as a means to solve rush hour congestion. Such monthly mile limits would needlessly impact residents who drive when the road is empty late at night and do not contribute to traffic congestion. Yet this is logic being employed when instituting monthly data caps.Monthly data caps are a tool that decreases consumption at all hours of the day.

In fact, the report even points out that Comcast has quietly admitted to the FCC that it's caps have nothing to do with network congestion... even as it has argued in favor of them publicly by using the "congestion" argument. As we've pointed out over and over again, if you talk to the tech people at broadband companies, they admit that the best way to deal with congestion is to simply upgrade capacity, not try to choke off usage. And this report shows that, rather than do that, telcos have been going in the other direction:

The best way to resolve chronic network congestion in the long term is to invest and expand capacity. Yet, a review of the publicly available financial document for some of the largest ISPs in the country shows a decline in capital expenditures—the costs associated with building, upgrading and maintaining a network, such as construction, repairs, and equipment purchases—for their wireline networks.Many ISPs are spending less money on capital expenditures now, both as a ratio to revenue but also even in raw dollars,than they have in years past.

Given all that, it's great to see that Senator Ron Wyden is introducing a new bill to protect consumers against data cap abuse. One of the many issues we've raised with data caps is that users have no idea how much broadband traffic they use, and related to that, broadband providers are notorious for either not providing meters for usage, or providing ones that just don't work very well (or give you some sort of arbitrary number when you check). The new bill, the Data Cap Integrity Act, would do two key things:

1. Require tools be available for users to really measure and manage their broadband usage
2. Have the FCC establish standards for ISPs to make sure that they only use data caps to manage network congestion, rather than as a way to "monetize data in ways that undermine innovation."

The bill literally has a section entitled: "SMART DATA CAPS INSTEAD OF DUMB ONES" which reads:

SMART DATA CAPS INSTEAD OF DUMB ONES.—The Commission shall evaluate a data cap proposed by an Internet service provider to determine whether the data cap functions to reasonably limit network congestion in a manner that does not unnecessarily discourage use of the Internet.

If we had a real competitive market for broadband, of course, this wouldn't matter. I'm still hesitant to support legislation telling companies how they can implement a business model. But, as we've been arguing for many, many years, there isn't real competition in the broadband space for most users, which is what allows broadband providers to get away with crap like using data caps to limit internet usage and increase revenue. Furthermore, given how much the industry has relied on government subsidies and rights of way, it seems only reasonable to think that some level of requirement to actually, you know, not screw over users, might be appropriate.

That said, the bill also has the following tidbit, which almost certainly dooms it from the start:

DISCRIMINATION OF CONTENT.—A covered Internet service provider may not, for purposes of measuring data usage or otherwise, provide preferential treatment of data that is based on the source or the content of the data.

That's going to be interpreted as a backdoor attempt to put in place a net neutrality rule, which is more or less guaranteed to freak out the wing of Congress who insists that net neutrality is an attempt to take over the internet.

Filed Under: broadband, data caps, meters, net neutrality, protection, ron wyden

Senator Chambliss Says There's No Reason To Debate FISA Amendments Act; Just Pass It

from the unconstitutional dept

We've been covering in great detail the FISA Amendments Act, which is likely to be renewed before the end of the year. As you may recall, this was the "law" that expanded the ability of federal law enforcement to warrantlessly wiretap Americans -- and then, thanks to a secret interpretation appears to be used to scoop up tons of information on Americans, despite appearing to be limited to only foreign communications. As we noted recently, a former judge has made a pretty compelling case why the whole thing is completely unconstitutional. While Senator Wyden has put a hold on the renewal of the FAA, he's also said he'll lift the hold if the Senate will consider some important amendments and actually debate the law.

And yet... that might not happen. Senator Saxby Chambliss, apparently with no regard to the Constitution or the privacy of the public he's supposed to represent, has apparently complained that any debate is a waste of time after Senator Majority Leader Harry Reid tried to bring up the issue.

Reid wanted S. 3276 to be considered with a limited number of amendments, but Sen. Saxby Chambliss (R-Ga.) objected and said he didn’t understand why the Senate couldn’t just pass the House FISA bill. He referred to a letter stating that the Obama administration supports the House-version.

So, apparently, as long as the White House wants to trample on Americans' 4th Amendment Rights, and there's a House version that was passed because Representatives misrepresented or lied about what was in the bill, the Senate should just approve it? Yikes. We deserve better. We should absolutely demand that Congress debate this issue, and not rubber stamp it.

Filed Under: 4th amendment, debate, fisa, fisa amendments act, privacy, ron wyden, saxby chambliss

Negotiations Continue Over Extension Of Feds Ability To Spy On Americans; But No Debate On The Issues

from the of-course-not dept

With the end of the year approaching, Senator Ron Wyden has admitted that he's willing to drop the hold on the renewal for the FISA Amendments Act in exchange for allowing some key amendments to be voted on. As summarized by David Kravetz at Wired:

Wyden said he would lift his hold in exchange for a Senate floor vote on an amendment requiring the government to account for how many times Americans’ communications have been accepted, and another amendment prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.

If that doesn’t go over, he’d lift the hold so the Senate could vote on brief extension of the act so his amendments and others could be fully debated next year.

“I’m willing to go along with a short-term extension as long as we have a chance in the early future, in 2013, to have a debate,” Wyden said.

Of course, we've seen this before. Just last year we had a "short-term extension" on these things for the sake of debate, but the "debate" never came. Instead, everyone waits until now, when the rules are about to expire, and then demand that it be renewed, sans debate, or else "terrorism!" The whole process is really kind of unfortunate. There should have been a debate years ago, before the FISA Amendments Act was rushed into law. But, unfortunately, actually considering the implications of these laws -- and how they're used and interpreted -- just doesn't seem to be a major issue for Congress.

Filed Under: debate, fisa, fisa amendments act, hold, negotiations, ron wyden

National Security Bosses Still Claiming It Would Violate National Security To Tell You If They Violate Your Privacy

from the whose-security-are-we-talking-about? dept

Via Julian Sanchez we learn that Senator Ron Wyden has released some updated responses from our national intelligence bosses concerning the questions that Wyden (and a few other Senators) have been asking for years. It's been pretty clear that a "secret" interpretation under the FISA Amendments Act (related to the Patriot Act) has meant that the NSA is scooping up tons of American communications, even as its mandate is that it only cover foreign intelligence—and Wyden has been pushing for more information.

It appears that there are some pretty significant loopholes that have allowed the NSA to go a lot further. For example, it isn't allowed to collect information on Americans if "it's known at the time of acquisition" that the communications are domestic. So as long as it doesn't look when it's acquiring (but does look later) there's no problem. Similarly, it appears that the secret interpretation also means as long as the target of the investigation being conducted -- and not necessarily the person whose communication is being intercepted -- is a foreign terrorist, the communication is fair game. That is, so long as the NSA can claim that they're collecting the information to go after Al Qaeda, they can claim that it's valid to intercept almost anything, as it "targets" foreign communications, even if it's collecting purely domestic communications. The key to all of this is reports that the NSA is likely collecting a massive chunk of information, possibly including pretty much all mobile phone records. Senator Wyden keeps asking about how many Americans have had their data collected, and what interpretation the NSA is using. These seem like completely valid questions, but the NSA and James Clapper, the director of national intelligence, keep refusing to answer.

After the NSA responded to yet another request from Wyden for answers to these questions, Wyden once again demanded answers from James Clapper, the Director of National Security. Wyden, along with Senators Jeff Merkeley, Tom Udall and Mark Udall, sent a letter simply asking Clapper to respond to four simple questions -- many of which could be answered with a simple yes or no:

First, we asked if any entities have made any estimates -- even imprecise estimates -- about how many US cmmunications have been collected under section 702 of the FISA statute (which is the central provision of the FISA Amendments Act). You did not answer this question. Please provide an answer. We would expect this answer to be unclassified, but if you disagree please provide your reasons for keeping this answer secret.

Second, we asked if it was possible to estimate the order of magnitude of this number. (For example, is the number of US communications collected under section 702 closer to 100. or 100.000. or 100 million?) You did not answer this question directly, however the Director of the NSA has made public statements that appear to estimate this order of magnitude. Specifically, the NSA Director has said that "the story that [the NSA] has millions or hundreds of millions of dossiers on people is absolutely false." Please explain whether this statement should be understood to mean that the number of US communications collected under section 702 is less than "millions or hundreds of millions." Since the NSA Director made this statement publicly, we would expect this answer to be unclassified as well.

Third, we asked if any wholly domestic American communications had been collected under section 702 authorities. Your response was classified. We do not understand how simply stating whether any wholly domestic communications have been collected under section 702 authorities would have any impact at all on US national security interests. if you believe that it would, please explain why. And if you agree that it would not, please provide an unclassified answer to this question.

Fourth, we noted that the FISA Amendments Act does not prohibit searching through communications collected under section 702 to find the communications of particular Americans, and asked if the US government has ever attempted to search for the communications of a specific American in this way without a warrant or emergency authorization. Your response was classified. We do not understand how providing a 'yes' or 'no' answer to this question would impact US national security interests in any way, and we ask that you provide an unclassified response.

They further note, via a footnote, that the idea that it's reasonable to answer these questions in a classified manner because Senators can read the classified answers makes little sense concerning the important debate on renewing the FISA Amendments Act, since the key staffers who Senators hire to understand this stuff probably can't read those classified responses.

We note that classifying these answers does not just keep them secret from the public. Most members of Congress including eleven of the thirteen senators that signed our letter - do not have any staff who are cleared to read your attachment, which will make it extremely difficult for most members to review and understand these" answers.

The whole thing is ridiculous... and making it even more ridiculous is the response sent by Clapper which basically ignores the questions and says that he's happy to meet directly with any Senator in a classified setting to answer questions:

We cannot provide additional answers to your questions in an unclassified format. Rather than provide you with imprecise, unclassified information, I reiterate our offer to meet with you -- and any other Members of Congress -- in a classified setting to discuss these authorities and answer any questions you might have.

Of course, that defeats the point of letting the public know about how these laws are being interpreted and how much of their communications are being collected by the NSA. Furthermore, it fails to take into account the footnoted point that the key staffers who help elected officials understand this stuff may not be allowed to learn about these answers. Clapper's letter is even more ridiculous when he explains the justifications for not answering the questions. Basically, he gives a blanket "national security" answer, claiming that he's "balancing" the issues of security and public debate:

I also share your interest in an informed public debate on the government's use of its intelligence collection authorities. As you know, it is my responsibility under the law to protect critical intelligence activities from public disclosure in order to safeguard sensitive sources and methods, including the government's acquisition of vital foreign intelligence information through FAA authorities. Our earlier publicly available letters, including my August 24, 2012 unclassified letter (with classified annex) responding to your July 26, 2012 inquiry, and General Alexander's November 13, 2012 letter, properly balance protecting classified information and informing the public of the manner in which FAA is implemented.

That is, to put it simply: hogwash. As the original letter makes clear, there is no reason that national security is threatened by answering the basic questions being asked. Saying whether or not an estimate has been made on how many Americans have had their communications intercepted (not even saying what that number is) is not going to violate national security. As for the NSA letter from General Alexander that Clapper mentions, Wyden has released that too and it's equally ridiculous -- again, insisting that the answers to such basic questions need to be classified.

In the end, it looks like the NSA and the National Intelligence Director aren't so interested in protecting national security with these non-answers, but their own job security. Claiming that such information needs to be kept secret may allow them to keep quiet how they've been using unique interpretations of the law to collect American citizens' communications, even as Congress pretends that the bill is being interpreted as written, whereby domestic communications are off limits. The whole thing has become a joke, and shows what intelligence officials will do when there's no real oversight, and they can spy on citizens at will under a flimsy secret interpretation of the law that they never have to reveal.

The government spying on Americans using "secret interpretations" of laws, where intelligence officials get to play word games, rather than answer straight questions from Congress? That's not the way these things are supposed to work.

Filed Under: 4th amendment, fisa, fisa amendments act, james clapper, keith alexander, nsa, privacy, ron wyden

First Amendment Concerns About Internet Radio Bill Not Just Overblown But Completely Backwards

from the let's-do-this-slowly dept

I've been tossing around a longish blog post about some of the controversy concerning the Internet Radio Fairness Act (IRFA) over the past month or so, but haven't had a chance to put it all down in a blog post. I did, however, wish to pick up on a small thread that got a brief spark of attention from some people who don't seem to understand legal stuff in the slightest. It started with musician David Lowery (you may remember him from past nonsensical rampages) claiming that Section 5 of the bill muzzled free speech and thus violated the First Amendment. This isn't just wrong. It's completely backwards. But the language and history here is a bit complex, so let's dig in a bit.

First off, you have to understand that the amounts that satellite and internet radio pay for a "performance right" for broadcasting songs is not (generally) an individually negotiated rate, but rather is set by the Copyright Royalty Board, using a variety of questionable standards. As we've noted in the past, the CRB is notoriously bad at setting reasonable rates -- and part of that is because part of its very charter is to block disruptive innovation if it has an impact on "generally prevailing industry practices." Thus, it tends to set rates super high. This is exceptionally bad for innovation, competition and for artists in the long run, though I'll get to that in another post. One thing that it more or less ensures is that these industries will be dominated by a very small number of super large players, because no one else will be able to afford the rates -- and this effectively locks in the top guys. That's what's happened, as you have Sirius dominating satellite radio and Pandora dominating internet radio. But the rates are so crazy that it's difficult to impossible for these companies to ever be profitable.

We'll get back to that in a moment. But, now, go ahead and read the full text of the bill if you'd like. For this discussion, jump over to Section 5, entitled "Promotion of a Competitive Marketplace." The section is relatively short.

SEC. 5. PROMOTION OF A COMPETITIVE MARKETPLACE.

(a) Limitation of Antitrust Exemptions-

(1) EPHEMERAL RECORDINGS- Section 112(e)(2) of title 17, United States Code, is amended--

(A) by inserting ‘, on a nonexclusive basis,’ after ‘common agents’; and

(B) by adding at the end the following: ‘Nothing in this paragraph shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).’.

(2) DIGITAL SOUND RECORDING PERFORMANCES- Section 114(e) of title 17, United States Code, is amended by adding at the end the following:

‘(3) Nothing in this subsection shall be construed to permit any copyright owners of sound recordings acting jointly, or any common agent or collective representing such copyright owners, to take any action that would prohibit, interfere with, or impede direct licensing by copyright owners of sound recordings in competition with licensing by any common agent or collective, and any such action that affects interstate commerce shall be deemed a contract, combination or conspiracy in restraint of trade in violation of section 1 of the Sherman Act (15 U.S.C. 1).

‘(4) In order to obtain the benefits of paragraph (1), a common agent or collective representing copyright owners of sound recordings must make available at no charge through publicly accessible computer access through the Internet the most current available list of sound recording copyright owners represented by the organization and the most current list of sound recordings licensed by the organization.’.

The important thing to understand here is that there's currently an antitrust exemption for SoundExchange, the organization that collects money from internet and satellite radio offerings (and sometimes has difficulty finding artists to pay them). SoundExchange basically needs an antitrust exemption because it is, by definition, a monopoly. What the bill is doing is something simple which is actually beneficial for artists. It's saying that SoundExchange can't use that antitrust exemption to try to stop artists from having the option, if they want to go do direct deals with internet or satellite radio providers. The second part is similar, but not referencing an antitrust exemption. It's just saying that any group that is representing multiple artists can't seek to block other artists from choosing to do a direct deal.

Sirius XM, in particular, has been trying to negotiate direct deals that route around SoundExchange. Now, why would artists ever want to negotiate directly with a Sirius or Pandora when they've already got the Copyright Royalty Board forcing ridiculous high rates on those providers? It's not as if those sites will choose to pay more directly. However, what they can do is offer better service than SoundExchange. That is: they can pay faster, they can provide more data and details, better access to users, etc. And that's what both companies are attempting to do. Also, for artists who actually act as their own label, they can actually make more money because they're cutting out a lot of middlemen who take their cut (it's convoluted, but click that link to see the details).

So, short version: it's certainly not for everyone, but some artists might find it beneficial to go direct. If they choose not to, they can still have SoundExchange collect and distribute their money and that's fine as well.

Now, jump to March of this year... when Sirius sued SoundExchange and A2IM (the RIAA of indie labels) claiming antitrust violations. Sirius argues in its lawsuit that SoundExchange and A2IM conspired and colluded to effectively forbid artists from going direct. Because proving direct collusion is difficult, Sirius' lawsuit is filled with circumstantial evidence, which doesn't prove an antitrust violation, but infers that there might be fire behind the smoke. The goal, there, is to get to discovery to try to suss out some smoking guns of collusion. So, the lawsuit includes various bits of circumstantial evidence, including a number of artists and indie labels that Sirius reached out to who flat out told them that A2IM prevents direct licenses, or that they'd have to first ask A2IM for permission. As part of the circumstantial evidence, Sirius also points to this blog post from A2IM that argues against doing direct licenses.

That lawsuit is still crawling along, so it's unclear if it's going anywhere. Honestly, proving collusion is crazy difficult, and I doubt Sirius will succeed, but some of that circumstantial evidence is eye-opening.

And that leads us to Section 5 of IRFA. As you can read above, what it makes clear is that the existing antitrust exemption cannot be used to "prohibit, interfere with, or impede direct licensing" and similarly that any group acting for some artists could violate antitrust laws by blocking the free will of other artists to negotiate their own deals. In other words, the bill makes it clear that if A2IM or SoundExchange really are colluding to impede artists from choosing to do direct deals, that could be seen as an antitrust violation. This, then, is about protecting artists and indie labels from large organizations like SoundExchange or A2IM, should they try to block those artists and labels from voluntarily doing direct deals.

So you would think that self-declared, if often confused, "defender of artists rights," David Lowery, would like that. But he doesn't for reasons that suggest a serious misreading of the bill or misunderstanding of this background. He points to the language, and then at the text of the Sirius lawsuit, apparently not understanding the nature of circumstantial evidence, and argues that "This is the type of explanatory speech — not conduct — that Sirius XM thinks is illegal and IRFA definitely would outlaw." The only problem with this statement is, well, everything. It's wrong. Nothing in the bill would outlaw that kind of speech. At all. Nor does Sirius' lawsuit claim that such explanatory speech is illegal. Instead, it is arguing that that blog post, along with a host of other circumstantial evidence, is enough to suggest there's a fire somewhere providing all that smoke. Under IRFA, such blog posts would still be perfectly legal, so long as A2IM didn't also use those blog posts to collude and directly hinder copyright holders from doing direct deals.

All that Section 5 of the bill is saying is that the A2IMs and SoundExchanges of the world can't try to hide behind antitrust exemptions to argue that such coercion to block artists from doing direct deals is free from antitrust scrutiny. And, outside of the exemption, they also cannot restrict artists from doing direct deals.

And yet, Lowery (and some of his followers) have taken up the banner claiming that this is a First Amendment violation and that it censors free speech. What he seems to be missing is that the only speech it blocks is speech that is used to collude or to block artists from voluntarily making a deal. Under Lowery's interpretation of the bill, collusion by large companies to force independent artists and labels to do business their way only is legal... because it's free speech to collude..

That's kinda nutty. His argument is, basically: legalize collusion!

A few weeks ago, Lowery gleefully confronted supporters of the bill with this argument at the Future of Music Coalition Conference, which led bill sponsor, Senator Ron Wyden, to hit back and claim that, as one of the strongest defenders of the First Amendment, he'd never support a bill that took away free speech rights. He promised Lowery that he'd review the specific language of the bill, and if there were any interpretations that impacted free speech rights, he'd fix them.

And he followed through with that, asking the Congressional Research Service to look into the matter, which it did. In a note published last week, they make it quite clear that it is extremely unlikely that there would be a First Amendment issue raised by the bill:

... it seems unlikely that, in practice, Section 5 would impinge upon First Amendment rights for a few reasons.

They then go on to detail those reasons -- which can be summed up as, Congress has the right under its authority to regulate interstate commerce, to create antitrust law that blocks collusion (as it applies to interstate commerce). Basically, since antitrust law is Constitutional, so is Section 5:

The antitrust laws are generally considered to comport with the First Amendment, because though the Sherman Act may restrain speech on occasion, the restraint is incidental to Congress's legitimate goal of maintaining a free market. In the case of Section 5, Congress would arguably be creating a similar prohibition, particularly since the bill specifically references the antitrust laws. As noted above, Section 5 would generally prohibit copyright owners acting jointly from taking any action to interfere with direct licensing negotiations. This provision appears to be intended to further the government's interest in preserving the rights of individual copyright owners to negotiate directly with potential licensees without interference from entities like member-based royalty collection organizations. It could be argued that this is similar to Congress's intent to preserve a free market by enacting the antitrust laws. Under Section 5 an individual copyright owner would have the option, as she always has, of negotiating royalty rates individually or collectively, but with an added protection from interference on the part of groups of copyright owners that might seek to prevent her from exercising her individual rights. If the provision is read to prohibit activity and speech similar to, and not broader than those prohibited by the Sherman Act, Section 5 likely would not violate the First Amendment for similar reasons that the antitrust laws do not violate the First Amendment. The restrictions on speech may be interpreted to be incidental to a valid exercise of Congressional authority to regulate interstate commerce.

In other words, exactly what we were saying: unless you're arguing that collusion is legal because it's free speech, the argument that Section 5 violates free speech is quite unlikely.

Because the CRS is quite thorough, it also does work through some scenarios under which the bill might possibly have Free Speech implications. But the only thing it can come up with is that a court would have to somehow interpret Section 5 to restrict speech beyond what's in antitrust laws (i.e., beyond activity designed to restrain trade). Considering how vocal bill supporters have been about this clause not being intended to go beyond the law, it would be somewhat incredible for a court to have that interpretation.

Of course, to make things even more amusing, Lowery himself posted about this CRS destruction of his key argument... and declared victory. Why? Because the CRS report, in its typically even-handed manner, discusses Lowery's scenario, of a blog post potentially violating Section 5, and notes that "though this hypothetical presents a broad interpretation of the language of Section 5, it is not an implausible one." Lowery cuts off the text at that point and declares victory... conveniently leaving out the detailed explanation of why this isn't a First Amendment violation (as explained above).

The confusion, it appears, stems from yet another misreading by Lowery of the CRS report. He interprets the "not implausible" claim to refer to his overall argument that the bill restricts free speech rights. But that is not what it is saying. It is saying that he is right that if a blog post somehow interfered with someone else doing a direct licensing deal -- i.e., restricted interstate trade under existing laws -- then it could violate the Act... but as such would not likely violate the First Amendment. So, the conditions here are that the blog posts themselves would have to actually impede trade, which the CRS report itself notes would require a very broad interpretation of the bill, one that is quite unlikely.

In the end, this appears to be much ado about nothing. The original complaint was a misread, which the CRS report clearly corrects, and Lowery doubles down by then misunderstanding the report itself. Still, from this vantage point, it's been rather amusing to watch a somewhat confused David Lowery thinking that he's "protecting artists," while he's been arguing against a provision in the bill that is actually 100% designed to protect artists against collusion to block them from doing their own deals -- deals which (especially for truly independent artists) could be more lucrative. It would be almost comical, if it weren't that a bunch of artists who haven't understood all this have been parroting Lowery's claims, believing that they're arguing for their own self-interest, when the reality is that they're literally arguing that organizations like SoundExchange and A2IM should be able to collude and block their ability to negotiate favorable deals.

Filed Under: antitrust, collusion, david lowery, first amendment, free speech, internet radio fairness act, irfa, ron wyden
Companies: a2im, sirius xm, soundexchange

Senator Wyden Puts Hold On Intelligence Authorization Act Over Free Speech Concerns

from the good-for-him dept

Once again, Senator Ron Wyden seems like one of a very small number of people in Congress actually willing to stand up against bad bills that are pushed forward with fear mongering. Earlier this year, we noted just how absolutely ridiculous it was that Senator Dianne Feinstein seemed a hell of a lot more concerned about punishing whoever blew the whistle on questionable US activities like Stuxnet, then about the questionable activities themselves. In response, she put forth some legislation that was designed to punish government whistleblowers, rather than understand why they were blowing the whistle. This bill got dumped into a key appropriations bill, the Intelligence Authorization Act for Fiscal Year 2013. In other words, Feinstein basically said that if we are to fund intelligence activities we have to crack down on whistleblowers. Shameful stuff.

Thankfully, Senator Wyden has now put a hold on the bill, noting his concern about how it would impact free speech issues, especially as it pertained to the media reporting on national security:

"I think Congress should be extremely skeptical of any anti-leaks bills that threaten to encroach upon the freedom of the press, or that would reduce access to information that the public has a right to know," Wyden said in a floor statement publicly announcing his hold. "Without transparent and informed public debate on foreign policy and national security topics, American voters would be ill-equipped to elect the policymakers who make important decisions in these areas."

Of course, part of the issue here is that Feinstein sees any form of whistleblowing or commentary as "leaks," while Wyden properly recognizes that a functioning democracy means allowing the press to report on questionable behavior by the government.

Filed Under: dianne feinstein, hold, intelligence authorization act, leaks, ron wyden, whistleblowing

Senator Wyden Introduces Bill To Bring Some Sanity To Webcasting Royalty Rates

from the a-step-in-the-right-direction dept

We were just talking about how incredibly broken the system is for establishing webcasting rates, in part because the law itself explicitly says that the Copyright Royalty Board (CRB) Judges should look to prevent disruptive innovation and preserve "prevailing industry practices." In practice this has meant that basic webcasting rates, established by CRB judges, are usually somewhat insane and impossibly out of touch with reality. It's only gotten worse over time -- and the last round ended up being so crazy that everyone basically agreed to ignore those rates and set their own. And while those rates were lower than what the judges wanted to set, they're still ridiculously high, significantly limiting the amount of webcasting available today. Even the leaders in the field, like Pandora, admit that with current rates, it's basically impossible for the company to ever make a profit.

Of course, some have looked at the discrepancy in royalty rates between webcasting and other offerings, like satellite and cable radio, and thought that the best way to deal with this is to massively increase royalties on those other services, effectively creating the RIAA bailout bill of 2012. Senator Wyden, thankfully, has other ideas. Today's he's introduced a bill in the Senate, the Internet Radio Fairness Act (IRFA), which tries to fix a bunch of issues with royalty rate setting. Like a bill introduced by Rep. Chaffetz in the House, Wyden's bill would shift internet radio rates to the same process as satellite and cable, rather than the other way around. Those royalties, while still high, are much less onerous.

It also seeks to fix other issues, including the ridiculous rule saying that internet radio broadcasters aren't allowed to make backups of the music they legally purchased. IRFA makes a slight change to the rule, allowing backups solely for the purpose of webcasting. The bill also looks to fix the somewhat awkward situation under which the CRB was recently found to be unconstitutional due to everyone ignoring the appointments clause (thus, in the future, CRB judges would have to be nominated by the President and confirmed by the Senate, rather than appointed by the Librarian of Congress). This process would at least somewhat increase the level of oversight for who gets on the CRB. More importantly, the bill would require CRB judges have a bare minimum level of experience related to this topic, rather than no experience at all, as often seems to be the case today.

There are two other very interesting aspects to the bill as well. Because, historically, the judges have more or less established rates by staring into space and picking what number "feels" right to them (only a very, very slight exaggeration), rather than what the market would really establish, the bill requires the judges to look at actual agreements in the marketplace, and tries to bring more transparency to those royalty rates. I would imagine this section is going to freak the labels out quite a bit, as they rely on secrecy to try to extract crazy high rates for other services.

Finally, the bill would also seek to establish a global music rights database, somewhat similar to proposals we've discussed before, when TopSpin's Ian Rogers suggested such a thing. There are related efforts underway elsewhere, and the goal here is to:

include all known or copyrighted musical works, the writers of the work, the owners of the rights, the entity on behalf of those owners who can licenses such rights on a territory-by-territory basis, and all known sound recording data.

I have concerns that how such a database is set up can lock in place certain terms or rules, potentially limiting some innovative uses, offerings and services, but it is an interesting idea worth discussing, and would move a highly opaque system that the labels have long abused to one that is much more transparent and open. For pretty much all of these reasons, I expect that the RIAA is going to come out vehemently against this bill, preferring, of course the one that bails them out.

Either way, Wyden's statement on the introduction of the bill is dead on:

“The Internet has shown itself to be an incredible tool for enabling innovation and competition to make existing industries better,” Wyden said. “However, there are those who seek to stifle that evolution by pushing through onerous and unfair laws to limit competition and protect the status quo. Fourteen years ago, when online radio was in its infancy, the incumbent interests were successful at getting laws passed to discriminate against the Internet. This bill puts Internet Radio on an even plane with its competitors, and allows the music marketplace to evolve and to expand--which will ultimately benefit artists and the internet economy.”

Filed Under: copyright, ron wyden, royalties, webcasting

Wyden To White House: Protecting Nuclear Power Plants Is Different Than Protecting Facebook

from the critical-infrastructure dept

Last week, we wrote about a leaked copy of an executive order being worked on by the White House to deal with the lack of "cybersecurity" legislation being passed. We've since learned that this is one of two different executive orders being worked on concerning this issue. We are working on getting the other, more focused, draft as well. That said, we noted numerous problems in the draft we did see, including the broad definition of "critical infrastructure," which basically leaves it pretty open for the feds to declare almost anything "critical infrastructure," thereby putting tremendous pressure on private companies to comply with a set of rules that may not make much sense.

This is, quite reasonably, raising some concerns. Senator Ron Wyden has sent a letter to the White House's Cybersecurity Czar Coordinator, J. Michael Daniel, to point out that there's a pretty big difference between things like nuclear power plants and social networks online -- and any executive order that fails to take that into account seems problematic. The full letter is embedded below, but a snippet:

In the case of interactive computer services, such as networks that facilitate commerce, provide search services, or are platforms for social networking and speech, vulnerabilities are unlikely to constitute threats to our national security. It should be clear in any executive order related to cybersecurity that there is a fundamental difference between networks that manage infrastructure critical to public safety, like energy, water, and transportation systems, and those that provide digital goods and services to the public. It would be a profound mistake to subject our growing digital economy to onerous new cyber rules and regulations that stifle innovation, creativity, and job growth. Such rules will not serve to combat the real threat to the nation's critical infrastructure and national security.

Indeed. While we tend to agree that various internet services are important to our economy, to argue that social networks are somehow the equivalent of energy systems, water treatment plants or the like seems obviously ridiculous. All it ends up doing is leaving a massive opening for the feds to seek much greater access and control over the internet services we use every day than they really need.

There are reasonable fears that some in the government are really using scare stories about planes falling from the sky due to cyberattacks to really open up access to private communications systems on the internet for surveillance purposes. Given what we've seen with other spying efforts, such worries seem quite justified. This is not unlike supporters of SOPA using the very narrowly focused issue of fake drugs as an excuse to pass expansive copyright laws dealing with file sharing online. In this case, it seems like those who really just want access to online communications may be using claims of "threats" to "critical infrastructure" to backdoor their way in. And the trick is just to define "critical infrastructure" really broadly. Hopefully people recognize that the definitions here really do matter, and that any executive order is very narrowly focused towards actual critical infrastructure.

Filed Under: critical infrastructure, cybersecurity, ron wyden