Members Of Congress Demand USTR Open Up On TPP

from the about-time dept

We've been talking about the incredible and ridiculous level of secrecy that the USTR has kept with regards to the TPP negotiations. While industry lobbyists are free to look over the exact details of what the US is proposing, the public, and even key Congressional staffers are left out in the cold. While USTR Ron Kirk keeps insisting that any elected member of Congress is free to look at the negotiating text, he's being disingenuous. Elected members are allowed to go to the USTR and request the document, which they will be given -- but only for viewing in that room, and they're not allowed to bring staff members (such as those who understand the ins and outs of what's being negotiated, nor are they allowed to make copies or even take notes). At the same time, lobbyists who are members of the USTR's "advisory committees" can login via any computer with internet access, and see what the latest text is without any concern. That doesn't seem right.

It appears that more and more people in Congress are getting fed up with this. A new letter has been sent to the USTR, on behalf of Congress (though, not surprisingly, spearheaded by Senator Wyden and Rep. Issa) demanding that this insanity stop, and that the USTR reveal what it's pushing for on behalf of Americans -- especially when it comes to the intellectual property sections.

Regrettably, the American people know very little about what the USTR is seeking in TPP generally, but specifically on IPR (Intellectual Property Rights). We believe that among all the areas of the TPP negotiations, the matters considered in the IPR chapter are ones in which there is particular public interest, therefore the USTR should be especially transparent and collaborative with the general public on these issues.

The American people deserve to know what the administration is purportedly seeking on its behalf.

We insist that, as expeditiously as possible, the USTR provide to the public detailed information about what obligations (and exceptions) the USTR is seeking in the IPR chapter. We call on the USTR to be particularly explicit with respect to what it aims to obtain as it relates to pharmaceutical drugs and enforcement of intellectual property rights online. Finally, it is important that the USTR convey to the American people whether the USTR is pursuing disciplines elsewhere in TPP that will promote an open and free Internet, given the Internet's increasing role in facilitating American exports of traditional goods and services as well as digital goods and services.

It seems likely that the USTR will simply ignore this letter, showing what kind of respect it has for Congress.

Filed Under: congress, darrell issa, ron wyden, tpp, transparency

Next Week: The Senate Fights Over Whether It Can Take Away Your Online Privacy

from the pay-attention dept

If you haven't been keeping up on all the politics of the cybersecurity bill fight over the past few weeks, a new bill was recently introduced that at least had some improvements concerning privacy (though it still had lots of problems). Yesterday, the Senate basically made it clear that they're done with debating the issue, and will bring the new bill to a vote next week. But now the real fight begins: the fight over the amendments on the bill. A whole bunch of amendments have already been proposed, with a second batch expected to be filed on Monday.

Senator McCain is leading the charge with a whole slew of amendments which are designed to delete basically every last bit of privacy protection that is in the bill. Among many, many other things, McCain's amendments would take away the limitation that any information sharing not go directly to the NSA. As we've noted in the past, a lot of this is a turf battle over whether NSA or Homeland Security gets control of the info, and McCain has been "Team NSA's" biggest cheerleader all along. Furthermore, he wants to remove the limitation that the information can only be used for cybersecurity reasons, making the use of the information much, much broader. There are also all sorts of efforts to take away government liability if information is abused. Basically, everything that's useful or good in protecting privacy? McCain and a few other Senators seem to want to take that away.

On the flip side, there are a few good amendments to increase privacy. Senators Al Franken and Rand Paul are pushing an amendment to strengthen the privacy protections. Senator Wyden is pushing an amendment that basically includes his GPS Act, which basically says law enforcement can't track GPS data without a warrant.

Either way, next week is going to be quite a big fight in the Senate, and the "marginally better" Cybersecurity Act may quickly turn into somethinghorribly destructive to your online privacy. If you care about your privacy, now (and all next week) would be a good time to call your Senator and tell them that any attempt to weaken privacy protections is unacceptable, and that they should get behind the proposals to strengthen privacy protections.

Filed Under: al franken, cybersecurity, cybersecurity act, john mccain, privacy, rand paul, ron wyden, senate

Wyden Traps Feds In Their Own Words: ACTA Explanation Opens Up Big Hole In Cybersecurity Bill

from the which-is-it? dept

Back in March, when the US State Department responded to Ron Wyden's questions about the feds' authority to negotiate and sign onto ACTA without Congressional approval (damn you, Constitution), it made an odd (and rather new) claim: that Congress had actually already approved the executive branch's ability to negotiate and approve international agreements on intellectual property issues. The claim was that the ProIP Act (of 2008) said the newly appointed IP Czar should create a joint strategic plan which, among other things, helps identify how the administration can deal with IP enforcement issues by "working with other countries to establish international standards and policies for the effective protection and enforcement of intellectual property rights."

Yes, because Congress said that the IP Czar should create a strategic plan in which the administration can work with other countries on IP enforcement, the administration now claims that Congress effectively abdicated its powers over international commerce on that issue, despite it never clearly stating that.

Given that strained interpretation, Wyden has noticed that the new cybersecurity bill that the Senate is considering could be broadly interpreted in the same manner to create all sorts of powers for the administration to ignore Congress in crafting international agreements concerning online security. He's now sent the State Department a letter asking for clarification. Here's the key part:

Do these provisions, or any others, in S. 3414 authorize the Executive Branch to enter into binding agreements with foreign governments for the purposes of establishing disciplines on cybersecurity? If so, under what circumstances would Congress need to consider such agreements and under what circumstances would you argue that Congress need not consider such agreements? If S. 3414 does not authorize the Executive Branch to enter into binding international agreements over cybersecurity without Congress' consideration of such an agreement, how do you square this view with your interpretation of the Pro IP Act of 2008?

In other words: Wyden is calling the State Department on its bullshit retroactive interpretation of Pro IP by noting that if they truly believe it, then the new cybersecurity bill would effectively mean Congress gives up its powers to have oversight on any international agreements about cybersecurity -- something the administration almost certainly does not want, since that would spark a debate that would likely hold up approval of the bill. The State Department, of course, wants it both ways. It wants to claim that the Pro IP gave the administration the power to ignore the Constitution with IP issues, but the same is not true of the cybersecurity bill. But that would involve ignoring that the same language is present in both bills.

I fully expect that the State Department will now seek to tapdance its way around this -- or (more likely) not answer until after the cybersecurity debate is over.

Filed Under: authority, cybersecurity, negotiations, pipa, ron wyden, sopa, treaties

Feds Wait Until Late Friday To Admit That, Yeah, They Ignored The 4th Amendment

from the congress-will-ignore-it-anyway dept

While Senator Wyden has been banging the drum about privacy violations committed by the federal government under the FISA Amendments Act for quite some time, the rest of Congress seems perfectly content to stay ignorant and pretend that there's no possible way that the feds might be abusing the powers that let them spy on nearly anyone without much (if any) oversight. So it's interesting that Wyden was finally able to squeeze out of the Director of National Intelligence an admission that, oh yeah, the feds violated the 4th Amendment. As covered by the always awesome reporting by Spencer Ackerman at Wired:

The head of the U.S. government’s vast spying apparatus has conceded that recent surveillance efforts on at least one occasion violated the Constitutional prohibitions on unlawful search and seizure.

The admission comes in a letter from the Office of the Director of National Intelligence declassifying statements that a top U.S. Senator wished to make public in order to call attention to the government’s 2008 expansion of its key surveillance law.

The letter is embedded below. There are two key admissions in there that are new:

• It is also true that on at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
• I believe that the government's implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.

Of course, they chose to release this bit of information late on a Friday evening -- exactly the time you release something when you want to bury it. The public should not let this news die. They should be asking their elected officials why they're rushing to re-approve the FAA, and have so far refused to have even the slightest curiosity about what the feds are doing with these powers -- even to the point of claiming that since they've seen no evidence of abuse (not that they've asked for it) they shouldn't assume that there is any. Well, now there's some evidence of abuse. Shouldn't Congress be seeking more information, rather than just rubber stamping a renewal of such powers?

Filed Under: 4th amendment, abuse, faa, fisa, fisa amendments act, privacy, ron wyden

Over 130 Representatives Spell Out Their Concerns With TPP In Letter To Ron Kirk

from the where's-the-transparency dept

As the TPP negotiations progress, concern about the almost total lack of transparency (and the USTR's laughable statements to the contrary) is starting to gain significant attention. Most recently, we wrote about Rep. Darrell Issa's request to observe the next round of negotiations, and before that, Senator Ron Wyden's quizzing of Ron Kirk about transparency during a senate hearing. So far, the USTR has managed to brush this off by claiming everybody else in Congress was happy—but, like almost everything the USTR says about TPP, that too is blatantly untrue. Over 130 members of the House of Representatives have now chimed in by signing on to a much longer open letter addressed to USTR Ron Kirk, expressing specific concerns about the TPP process.

The letter strongly asserts Congress' required role in these kinds of negotiations, and then goes on to make several specific requests—while also once again underlining the fact that a few key interest groups are getting special treatment while everyone else is excluded, including Congress.

Under the trade advisory system, representatives from over 600 business interests have such access to both USTR negotiators and the negotiating text. However, American small business, civil society, and other interests who have a direct and long-term interest in the outcome of these negotiations have little meaningful input. In the past, most important U.S. trade agreement texts have not been made available until after they were signed and changes were all but impossible. If Congress and the public are not informed of the exact terms of the agreement until the conclusion of the process, then any opportunity for meaningful input is lost.

Given the laudable priority given to improved government transparency since the first day of the Obama Administration, we are troubled that there may be needless secrecy and over-classification of documents associated with the release of drafts of the pact’s various chapters, or even providing a summary of each of the Administration’s policies that they have proposed to other countries. Press reports and a recent USTR letter indicate that the negotiating parties signed a confidentiality agreement in 2010 imposing heightened secrecy for the process. Accordingly, we ask that you provide us with a copy of the confidentiality agreement and an explanation as to what role USTR or other governments played in crafting it.

Fortunately, there is precedent for greater openness which could bring needed daylight to this process. For example,

• a full draft text of the Free Trade Area of the Americas (FTAA) was released in 2001 during negotiations on that 34-nation pact;
• the World Trade Organization now posts composite negotiating texts on its website, including various texts during the Doha round negotiations; and
• a draft text of the recently-completed Anti-Counterfeiting Trade Agreement (ACTA) was released.

We would urge you to adopt a similar approach in the context of TPP FTA talks, especially now that there are draft texts with bracketed provisions for most chapters of the prospective pact. To the extent that secrecy provisions in the confidentiality agreement preclude the unilateral release of negotiating text, then we would urge you to work with our TPP negotiating partners to obtain their consent to do so and inform us if there are countries that are unwilling to cooperate.

With regard to U.S. proposals, we request that you provide us and the public with summaries of the proposals offered by the U.S. government, so we have a clearer idea of what positions are being advanced on behalf of the U.S. citizenry. Full U.S. proposal texts should be made available not only to Members of Congress, but also to their staffs. To the extent that classification of documents is required, then we would urge you to make them available to all staff with appropriate security clearances.

At this point, it should be clear to Ron Kirk that Congress knows he's trying to quietly negotiate the entirety of TPP behind closed doors, and they aren't happy. Whether or not that will have any impact on the straight-faced claims of "unprecedented transparency" coming from him and his office is less of a sure thing, but it seems like Congress is not prepared to let him get away with that forever.

Filed Under: congress, darrell issa, ron kirk, ron wyden, tpp, transparency, ustr

USTR Gives MPAA Full Online Access To TPP Text, But Still Won't Share With Senate Staffers

from the transparency? dept

US Trade Representative (USTR) Ron Kirk continues to insult the intelligence of the Senate. During a recent hearing Senate hearing at which Kirk appeared, Senator Ron Wyden once again quizzed Kirk about the lack of transparency the USTR has (video link, key point starts around 89 minutes and 30 seconds) regarding the Trans Pacific Partnership (TPP) agreement. Except, this time, Wyden went one step further. He pointed out that while many in Congress have no real access to the document, special interest company representatives are given special logins to the USTR's site, allowing them full access to the text of the document. We've pointed out many times before that Kirk seems to have given himself over entirely to the special interests, and this kind of access only shows how true that is. But where Kirk returns to being a disingenuous apologist for these special interests is to argue that this is no big deal because anyone in Congress can see the document too.

Wyden: What I've learned is that when trade agreements are negotiated, industry advisors sit in a far stronger position than virtually everyone in the Congress. For example, an industry advisor from the Motion Picture Association can sit at their desk with a laptop, enter their username and password, and see the negotiating text of a proposed trade agreement. Virtually no one in the Congress has the ability to do that. How is that right?

Kirk: Well, Senator, I want to make it plain, that it's not just industry, but it's all of the members of our trade advisory commissions which are established by this Congress, and they're cleared advisors, they have security clearance and they represent a broad range of interests from both industry and environmental groups, business groups.... Every member of Congress, any member of Congress, that wants to see the text of a trade agreement we're negotiating has the ability to do so, as long as we're doing so in a secure environment that's private, so I would only offer that one clarification that any elected official in this body has the ability to see the same text as any of those cleared advisors.

Kirk's answer is insulting in how misleading it is. He chooses his words very carefully, so let's break this down to expose why Wyden is concerned, and why Kirk's answer is no answer at all. Remember, folks on the MPAA and other "industry advisors" (of which there are no internet company representatives) have a direct login, so they can access the latest negotiating docs wherever they'd like. Kirk's response, in which he claims that any member of Congress can see the same text is technically true, but it is not the same level of access. What Kirk meant is that any member of Congress can go to the USTR offices by themselves and be shown a copy of the negotiating text on a so-called "read and retain basis." That means: no notes, no copies, no staff -- even staff that have all the necessary "security clearance" as Senator Wyden himself found out when he had a trade expert on his staff obtain the necessary security clearance, only to find that the USTR denied him access to the documents.

So, let's compare: the MPAA and other industry groups can log into a website at their own convenience. They are even allowed to (with certain limitations) share parts of the text with others, supposedly for the sake of getting an "analysis" of what the text means. But when a Senator -- who is the chair of the Senate subcommittee on International Trade -- wants to take a look at the same document, he has to go to a "private room" where he will be shown the document, but not allowed to make copies, take notes or bring along his own staff expert on the matter.

Who does it sound like Ron Kirk is listening to more in this case? The MPAA? Or the Senator who's supposed to have oversight concerning the agreement. I tend to think the word "corrupt" is thrown around too easily, but at this point, is there any way to look at this situation and not judge it to be a case of massive corruption?

Filed Under: ron kirk, ron wyden, tpp, transparency, ustr
Companies: mpaa

Lamar Smith & House Judiciary Committee Don't Want To Know How Often The NSA Spies On Americans

from the fingers-in-ears-approach dept

Once again, we are left stunned by the sheer ridiculousness of Congress. In a House Judiciary Committee markup concerning the FISA Amendments Act (FAA), a proposed amendment to require the NSA to reveal how many times it had spied on Americans was voted down 20 - 11, led by chair Lamar Smith who just kept talking about how "important" it was get past the markup phase and pass the bill. Meanwhile, Rep. Dan Lungren lashed out at those who wanted the NSA to explain how often it had spied on Americans without warrants under this bill by saying (and I kid you not): "What evidence is there that it is being used to spy on Americans?"

You see, that's the problem. The NSA doesn't have to tell anyone -- and whenever officials ask, they're given ridiculous answers, like the claim that it would violate the privacy of Americans to tell Congress how many Americans' privacy the NSA violated. It's stunning that our elected officials -- many of whom don't know themselves what the NSA is doing -- seem to have no qualms passing this update to the bill without even being willing to ask a simple question: how many Americans have been spied on using this regulation?

On the Senate side, as we've noted, Senators Wyden and Udall have been indicating (within the limitations they have, due to security clearances) that the NSA is quite clearly using this law incredibly broadly -- perhaps to the level of scooping up all phone data, which goes way, way, way beyond the text of the law. If some in Congress are so sure that there's no evidence that it's being used to spy on Americans, then have the NSA answer the damn question. But, no, instead, they insist that we just have to push it through, or, as Lamar Smith says, "We have a duty to ensure the intelligence community can gather the intelligence they need to protect our country."

You know who you have an even bigger duty to? The American public. That's who you represent. Not the intelligence community. The failure of our elected officials to give even the most basic oversight to the NSA is astonishing. It's shameful. We all deserve better.

Filed Under: congress, faa, fisa, house judiciary committee, lamar smith, marc udall, nsa, ron wyden

NSA: Figuring Out How Many US Citizens We Illegally Spied On Would Violate Their Privacy

from the wtf dept

For quite some time now, we've been reporting on Senators Wyden and Udall's repeated attempts to get the government to explain how many American citizens the NSA spied on under the FISA Amendments Act (which is supposed to be used to spy on foreigners, but appears to have been used much more broadly). It's quite clear that Wyden and Udall, in their roles on the Senate Intelligence Committee, believe there is some information that the public needs to know about, but which is not public. So they keep asking the same basic question over and over again. As we noted last week, since most of the rest of Congress does not have this information, and yet is expected to vote on the renewal of the FISA Amendments Act, something is seriously wrong.

What's never made sense is why the feds simply refuse to admit how many Americans they've spied on under the law. In the past, the Director of National Intelligence has basically told Wyden and Udall that he wouldn't answer because he didn't want to. But the latest answer really takes the insanity to stunning new levels. As initially revealed at Wired, the NSA has refused to answer claiming that, not only would it be too much work to figure it out, but that figuring it out would violate the privacy of Americans.

Yes, I'm going to repeat that, because it's insane. The NSA claims that figuring out how many Americans it spied on would violate their privacy. Here's the specific language from the letter:

The NSA IG provided a classified response on 6 June 2012. I defer to his conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA's mission. He further stated that his office and NSA leadership agreed that an IG review of the sort suggested would itself violate the privacy of U.S. persons..

At this point, you have to just wonder if the NSA is flat out mocking Wyden and Udall and basically taunting them to make it clear that the NSA doesn't believe anyone has oversight powers concerning the agency. And, of course, there is the other explanation: that the NSA has spied on more or less everyone who owns a mobile phone (which has been suggested by some reports).

Either way, it certainly sounds like the NSA really doesn't care what the law actually says, so long as it gets to keep spying on people.

Filed Under: data surveillance, fisa amendments act, marc udall, nsa, ron wyden, spying

Wyden & Udall Block FISA Amendments Act Until US Admits How Many Americans Are Being Spied On

from the would-be-useful-to-know... dept

We've been covering the fight that Senators Ron Wyden and Marc Udall have been in with the administration (and other members of Congress) concerning the FISA Amendments Act, in which the two Senators seem to be suggesting that a loophole in the law has allowed the feds to collect massive amounts of data on Americans without getting warrants. While they are unable to make the details clear, it sure sounds like the feds may be twisting the language of the Act, which was supposed to clear away some obstacles to collecting data on foreigners, such that they're collecting massive amounts of data on Americans. When Wyden & Udall asked officials just how many Americans had their data collected via this program, they were told it was impossible to answer that question. That alone should raise serious alarm bells.

Wyden and Udall have now put a hold on the new FISA Amendment Acts extension effort, saying that they don't want to hold back the important parts of the law, but are very worried about how it's being abused to spy on tons of Americans, despite that being against the clear intent. It does seem like a fair question to ask: just how many Americans have had their data surveilled under the law?

We are particularly concerned about a loophole in the law that could allow the government to effectively conduct warrantless searches for Americans' communications. Since we do not know how many Americans have had their phone calls and emails collected under this law, we believe that it is particularly important to have strong rules in place to protect the privacy of these Americans. We are disappointed that this bill does not attempt to add these protections.

The central provision in the FISA Amendments Act added a new section 702 to the original FISA statute. Section 702 was designed to give the government new authorities to collect the communications of people who are reasonably believed to be foreigners outside the United States. Because section 702 does not involve obtaining individual warrants, it contains language specifically intended to limit the government's ability to use these new authorities to deliberately spy on American citizens.

We have concluded, however, that section 702 currently contains a loophole that could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens. We have sought repeatedly to gain an understanding of how many Americans have had their phone calls or emails collected and reviewed under this statute, but we have not been able to obtain even a rough estimate of this number.

The Office of the Director of National Intelligence told the two of us in July 2011 that ``it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed'' under the FISA Amendments Act. We are prepared to accept that it might be difficult to come up with an exact count of this number, but it is hard for us to believe that it is impossible to even estimate it.

It really is incredible just how much it seems that the federal government is doing everything it can to avoid the basic checks and balances that are supposed to keep excessive behavior in check. Considering the bill is supposed to protect, not expose, Americans, it's scary that the government refuses to even estimate how many Americans are spied upon in this manner. Given the continued efforts and statements of Wyden and Udall, it seems evident that they're aware that the feds are treating this law in a very different manner than the public believes -- but they're held back from saying anything specific, due to much of the info being classified.

Even worse, however, is the attitude of Senate colleagues, who seem ready to push this extension through no matter what, so they can declare that they're helping to keep the country secure, without even bothering to understand the massive loopholes and likely abuse by the feds under the law. From what's been said, it appears that many in the Senate seem to take it at face value that the bill is only used for collecting info on foreigners, and thus they're voting from a position of ignorance. At the very least, they should be willing to speak out and demand the same data that Wyden and Udall are asking for: an estimate as to how many Americans have had data exposed under this bill. If it really is supposed to only focus on foreigners, but millions of Americans have had their info accessed, that seems like a problem that should be addressed, rather than one that should be swept under the rug, as most in the Senate seem interested in doing.

Filed Under: data surveillance, fisa amendments act, marc udall, ron wyden, spying

Apparently The USTR Thinks 'Unprecedented Transparency' Means Hiding TPP Details From 98% Of Congress

from the that's-mighty-opaque-transparency dept

We just wrote about the new bill proposed by Senator Wyden after discovering that the USTR refused to share the TPP with the staff director of the Senate Finance Committee's Subcommittee on International Trade, Customs and Global Competitiveness -- who, officially, is supposed to have oversight on trade negotiations. However, the USTR (apparently with the support of the administration) has gone rogue, and is effectively hiding all the details of what it's negotiating on from Congress. While Ron Kirk likes to continually talk up how many meetings USTR has held (behind closed doors) with Congress, he conveniently ignores the fact that he is still keeping the US's negotiating position away from Congress.

Reading through the specifics of Wyden's speech, you begin to realize that the USTR and the Administration appear to have interpreted the law that creates the Congressional Oversight Group (COG) to mean that the USTR no longer has to share information with anyone in Congress (as it has claimed in the past), but that it only has to share TPP negotiating documents with the members of Congress who are on the Congressional Oversight Group. That's around 12 members. Out of 535 members of Congress between Senators and Representatives (in the House). In other words, despite the fact that Congress has clear oversight concerning international trade negotiations, and despite the fact that the Congressional Oversight Group was set up specifically to increase oversight of the USTR, the administration has decided that it really means it can keep its negotiating position from about 98% of Congress.

This is part of why Wyden seems so reasonably concerned. The USTR is taking the creation of COG, and basically flipping it on its head. The whole purpose of COG was to increase transparency. And yet, the USTR continues to effectively ignore it, while pretending that it only has to share TPP info with a tiny fraction of Congress, leaving the rest in the dark until it's too late. That's insane. How is the Senate supposed to have oversight if the USTR's own interpretation of the law means that it can effectively reject any effort to oversee it? It's incredible that the USTR seems to be claiming significant powers that it simply does not have -- and even more obnoxious and intellectually dishonest for it to then claim that it's offering "unprecedented transparency."

I'm sure that the USTR is holding the meetings with Congress that it claims, but until Ron Kirk learns that transparency means revealing what you're doing, not just listening to what others say, the USTR is not being even the slightest bit "transparent." Instead, it's abusing the process at the expense of the American public.

Filed Under: congress, ron kirk, ron wyden, tpp, transparency, ustr